Hostes Humani Generis: Cyberspace, the Sea, and Sovereign Control (original) (raw)

Piracy in the 21st Century: A Proposed Model of International Governance

Journal of Maritime Law and Commerce , 2020

Piracy in international waters never went away, it continues to lead to the loss of goods transported on the high seas, the loss of lives, and jeopardizes the safety of international freight movement. The successful fight against Somali pirates did not prevent pirates from returning and attacking ships in other parts of the world, putting international commerce in jeopardy once again. There is a clear lack of leadership in dealing with this challenge. International forces such as the North Atlantic Treaty Organization (NATO) did not arrest pirates even when they had the opportunity to do so since political authorities were hesitant to make a firm decision concerning the legal and political basis for action in international waters. Several questions affected the motivation to combat piracy including ambiguity concerning the definition of pirates as civilians or illegal combatants, prosecution of the pirates, and which courts had jurisdiction. After describing the most significant legal challenges in the fight against piracy, the article suggests creating a mechanism that will make the fight against piracy an international consolidated effort rather than an action that is simply coordinated to one degree or another by multiple states. There is a need to establish an international legal council to deal continuously with the legal challenges connected to fighting piracy. The fast pace of military tactics used by pirates requires a more efficient mechanism than treaty law. A legal mechanism needs to include both a council that will define and legislate, and also oversee an international tribunal to fight piracy. An international force that will have a common command structure will ensure the effectiveness of an international fight against piracy.

Piracy in Modern International Law

International Law - A Practical Manual [Working Title]

This chapter scrutinizes practical implications of the current issues of piracy in the international law as well as the efforts of the coastal states and international navies in addressing this crime. The lowest number in reported piracy and armed robbery incidents since 1994 was registered in first half of 2022. It was reached by means of the armed guards, increased naval presence and proper application by ship owners of the Best Management Practices to Deter Piracy and Enhance Maritime Security. The chapter also examines the geographical and conceptual limitations of the definition of the piracy, what results in the use of more broad terms: the concept of ‘maritime violence’ in theory, a broad definition of piracy in commercial contracts. The practice of ransom payment is considered in the absence of the ransom-related rule of international law as well as such negative effect of the ransoms payment as further supporting of pirate activity. The chapter also demonstrates the negativ...

Cybersecurity and the Age of Privateering: A Historical Analogy

Cyber Studies Working Papers, 2015

Policy literature on the insecurity of cyberspace frequently invokes comparisons to Cold War security strategy, thereby neglecting the fundamental differences between contemporary and Cold War security environments. This article develops an alternative viewpoint, exploring the analogy between cyberspace and another largely ungoverned space: the sea in the age of privateering. This comparison enables us to incorporate into cybersecurity thinking the complex interactions between state and non- state actors, including entities such as navies, mercantile companies, pirates, and privateers. The paper provides a short historical overview of privateering and cybersecurity and compares the two by identifying state actors, semi-state actors, and criminal actors in each historical context. The paper identifies the limitations of Cold War analogies and presents the analogy of privateering as a superior conceptual benchmark for future policy guidance on cybersecurity. The paper makes three main arguments. First, cyber actors are comparable to the actors of maritime warfare in the sixteenth and seventeenth centuries. Second, the militarisation of cyberspace resembles the situation in the sixteenth century, when states transitioned from a reliance on privateers to dependence on professional navies. Third, as with privateering, the use of non-state actors by states in cyberspace has produced unintended harmful consequences; the emergence of a regime against privateering provides potentially fruitful lessons for international cooperation and the management of these consequences.

Piracy Jure Gentium & International Law

E-International Relations (E-IR) , 2010

Piracy seems to be a notion of ages ago yet it is far from gone. News reports over the last couple of years show that pirates are far from extinct and that they are still very active. This may seem a paradox with today's modern technology and society, however, as will be described later on, the variable of technology can work both ways. This paper discusses some of the most actual items on the news today regarding piracy and international law, a complex issue. This paper will address: 1. Piracy throughout the ages, 2. Piracy today, 3. What is piracy? 4. Piracy & International Law, 5. Piracy & law enforcement. In an ever globalizing world with a plethora of different actors one might wonder what then the exact definition of piracy is and whether the concept of piracy has remained the same. How long have we as a world been dealing with piracy? Piracy Throughout the Ages Piracy as a word was first recorded in the English language in 1419 (Wolfram Alpha, 2009). However, piracy or piracy jure gentium (piracy by the law of nations) as it is known was part of jus gentium (law of nations), Roman law (de Souza, 2002). Piracy as a word comes from the Greek word " peirateia " (Mirriam Webster, 2009), thus making piracy a problem of all ages. In certain cases, piracy spiraled out of control. With the Illyrians in 233 B.C., The Roman Empire had to protect Italian and Greek traders from a common enemy after shipping routes were constantly under attack of pirates. It took three (intricate) military campaigns to defeat the threat on sea. Yet piracy didn't disappear from the history books after that (de Souza, 2002). It continued to persist in various locations worldwide. England has historically had much jurisprudence experience related to piracy throughout its history as a sea fairing nation. Some examples are the Offences at Sea Act 1536 (UK). The issue of piracy had such a profound impact throughout the ages that by the sixteenth century jurists such as Grotius had already developed the concept that nationals who committed piracy on terra nullius (the high seas) placed themselves beyond the protection of any state and were deemed hostes humani generis (enemies of the human race). Consequently, such offenders were able to be tried by the courts of any state for the crime of piracy (Grotius, De Jure Belli ac Pacis, Volume II, chapter 20, §40). This was reaffirmed in re Piracy Jure Gentium [1934] AC 586 and piracy jure gentium was defined later in article 15 of the High Seas Convention in 1958. Even later, it was again reaffirmed in article 101 of the 1982 Convention on the Law of the Sea. This shows that piracy still exists today. Piracy Today In 2008 there were a total of 261 incidents involving piracy of which 42.5% took place in the Gulf of Aden (ASIL, 2009). This includes actual attacks and attempted attacks. Piracy seems to be focused in the following areas: South East Asia and the Indian Sub Continent, Africa and Gulf of Aden, and South and Central America (see Figures 1 and 3). Piracy, however, is not confined to one specific region or regions as on December 20 of 2008, four armed robbers boarded an anchored yacht and pillaged valuables and personal property of crew and passengers at Golfe de Porto Novo, Corsica. Piracy is an international crime and was believed to have disappeared from modern times by many. The International Maritime Organization's statistics on piracy show 1.751 incidents from 1984 to December 1999. The incidents in 2007 alone were the most significant increase of this international crime in nearly two hundred years (ASIL, 2009). The sudden increase of piracy can be attributed to several factors. Technology has made it possible to build bigger and more complex ships and one of the factors involved in this is the need of small crews manning these large advanced vessels. By doing so, these vessels are making themselves vulnerable to small groups of pirates that can board and take control over the ship, its cargo and crew. The lack of adequate diplomatic representation in areas where vessels fly flags of convenience and poor countries with large coastlines who aren't able to afford and maintain adequate patrols of their territorial waters or adjacent high seas (Bantekas & Nash p. 94, 2003). Another contributing factor is geography. In some cases, like the Suez Canal, vessels must pass through a narrow straight between the Horn of Africa and the Arabian Peninsula. This, combined with forenamed factors, increases the risk of passing vessels being boarded by pirates that operate from Somali waters. The distance for pirates to reach a ship is marginal in this case but does pose a problem for those who wish to combat pirates as there are different rules for the high seas and the territorial waters of a state, in this case Somalia (Figure 2). Due to the fact that globalization is not a homogenous process throughout, it is easier to explain why certain regions are more susceptible to developing piracy than others (Bennet & Oliver, 2002). In the case of Somalia, there is not a central government that has the resources or will to combat the pirates, yet the pirates do have the technological advancements to their disposal to pose a threat (BBC, 2009). As with many other international problems the international community is striving to find a common solution for certain problems, be it through customary law or even special treaties to combat specific scenarios that have not yet appeared before. What is Piracy? Piracy is a crime under international law and municipal law. Piracy jure gentium under international law is different from piracy under municipal law. Offences that fall under the definition of municipal law do not necessarily fall within the definition of piracy under international and, subsequently, are not susceptible to universal jurisdiction (Shawn, 2008). Because of its nature and long history, piracy has become an international crime based on customary law between the nations of the world, the law of nations. As the world further globalized after World War II, there was an apparent need for more regulation and codification besides the law of nations and certain treaties. At first the Convention of the High Seas was created in 1958.

Piracy at sea and the limits of international law

Aegean Review of The Law of The Sea and Maritime Law

The world community is focused on piracy. In today's interdependent world, this crime has once again unleashed itself on the maritime industry, putting people lives and economies at risk. The waters around Somalia and Nigeria are of extreme risk, and the Asian waters still remain an area of concern. The United Nations Security Council even declared piracy a threat to international peace and security. States, in the repression of piracy, do not operate in a legal vacuum. International law, as well as the national legislation of states, regulates the use of force at sea, defining the limits and conditions exercising criminal jurisdiction over pirates. In an attempt to fight impunity on the high seas, many states have started to revise their practices and adapt their laws. Calls are also rising to fill the ''loopholes left by the United Nations Convention on the Law of the Sea'': to address in due manner piracy issues and guarantee adequate balance between the freedom of navigation and the need to ensure the security of their ships and seafarers. This article is an attempt to identify the shortcomings of the existing provisions on piracy provided in international documents, discuss their applicability in fighting the piracy (namely by their ability to ensure the necessary jurisdiction over the crimes at sea) and offer an opinion on possible ways of addressing impunity at sea, both by national and international legal instruments.

Maritime Hacking: The International and Criminal Law Framework pp 981-987

INT-NAM E-Proceeding, http://int-nam.dho.edu.tr/PROCEEDINGS/e-Proceedings\_INT-NAM2018.pdf, 2018

Abstract Cybersecurity in the maritime realm made headlines in 2017 following the spread of ransomware, a type of computer and network virus, in the systems of major shipping companies and providers. Whilst there is extensive literature on maritime piracy in the traditional sense, i.e., an act of violence or depredation directed against the ship, its cargo or the persons aboard, cyber piracy targeting ships and maritime businesses remains a largely unexplored subject. What more, the law surrounding this phenomenon is marred with uncertainty. The objective of this paper is to identify and comment on key legal texts in the international maritime and criminal law spheres that may be relied on by public law officials in preventing and sanctioning hackers targeting the maritime sector.

From Global Commons to Territorial Seas: A Naval Analogy for the Nationalization of Cyberspace

Military Cyber Affairs

As one of the engines of modern globalization, the internet is perceived as having broken down barriers between cultures, ideologies and societies, and created a "democratization of technology." An analogy generated by this perception is that cyberspace is a "global common" similar to the oceanic "high seas" to which individuals and nations can (or at least should) maintain equal and unfettered access. Not only is this analogy incorrect, its usage makes it is hard for political decision-makers to grasp the enormity of the threat to American infrastructure, global trade, and current prosperity posed by our cyber vulnerabilities. The reality is that authoritarian governments-with the Chinese Communist Party (CCP) in the lead-have transformed the cyber "global common" into "territorial seas" in which others pass unmolested only at their sufferance, and to which access can be denied. Unfortunately, once an analogy takes hold in the popular or academic minds, it becomes the central core of explanation and defies most logical counterarguments. The analogy of cyberspace as a global common must be killed and replaced if decisionmakers are to comprehend the future of the medium, which is not a return to unfettered global access. We must clearly admit that cyber activity sails on a mosaic of adjoining territorial seas, not a vast, open ocean. Cyberspace is a nationalizing and militarizing environment of coast guards and forward outposts. This different analogy will assist in creating a mind-set that helps insure that Western democratic infrastructure does not go down with the digital ship.

THE UNITED NATIONS CONVENTION ON LAW OF THE SEA 1982 AND THE CHALLENGES OF PIRACY.

Maritime mischief and disorder is a subsisting international problem that has in the last two decades attracted unprecedented attention. This is as a result of an unusual upsurge in such activities especially along the Malacca and Singapore Straits and also in East Africa, off the coast of Somalia . The International Maritime Bureau reports that in the first nine months of 2009, there were 294 reported cases of pirate attacks from all over the world and the majority of these reported attacks occur in South East Asia, off the horn of Africa and along the west coast of Africa . The negative colossal effect of this on International Commerce cannot be overemphasized when looked at against the backdrop of the fact that 90percent of world trade is carried on by the international shipping industry with about fifty thousand merchant ships carrying all sort of cargo around the world, in addition to hundreds of cruise liners carrying hundreds of thousands of people and over one million seafarers from every nationality of the world This paper attempts to critique the prevailing concept of piracy as contained in the Law of the Sea Convention 1982 in order to see whether the provisions contained therein are sufficient to meet the present challenges of piracy especially the glaring problems of sanctity of the sovereignty of coastal States over their territorial seas and a seeming lack of political will to prosecute pirates. In doing this, we would be looking at the concept of piracy as it was understood from old times, through the period of privateering to the modern era of international treaties culminating in the Law of the Sea Convention 1982. We would go further to x-ray the modern day provisions of what amounts to piracy, highlighting its elements as contained in the law and juxtaposing same with the reality of the modus operandi of modern day deprecators by sea. In particular, there will be a commentary on the geographical requirement of the offence and the academic fireworks generated by phrase “for private ends”, with this writer showing a bias for the argument that the phrase means actions without State sanction and nothing more. Furthermore the paper goes on to look at measures that have been put in place to tackle the problems by the United Nations Security Council and regional efforts in the same direction particularly in Somalia and the Straits of Malacca and Singapore respectively. A gloss over the SUA Convention and its test case applicability in United States v Shi will also be attempted.