1In 1925, then later in 1958, two famous legal experts were all set to sound the death knell of pirates. Whereas one of them wondered if the “crime of piracy” was “obsolete”, according to the second, piracy was “no longer a general problem”.321

2At the dawn of the third millennium, the question of defining piracy still remains unsolved. Governments and experts are sceptical about the Montego Bay Convention whereas in the absence of a ratification the Rome Convention is hardly operational (see above). Just as in the case of terrorism, there is still no unique and well-established definition of piracy. Be it the South American guerrillas or other terrorist movements like the LTTE in Sri Lanka, the distinction between political and strictly criminal activities is fine, as would have been the distinction between pirates and corsairs in their time. The corsairs were certainly duly licensed but their methods and practices were as dubious as those of the pirates. As for the buccaneers, if they operated on their own account, they enjoyed the goodwill of the governors of the West Indies, only too happy to see the Spanish fleet being harassed.

5.1. The Divergence of Interests, Main Reason for the Lack of Legal Uniformity

3The deeply rebellious nature of piracy has been the primary cause of this confusion surrounding the terms and the definition used. Piracy has evolved through the ages in multiple forms, its existence being guaranteed by a continual myth, rather than by a norm. Pirates travel beyond time – did Cicero not consider them “the enemies of the human race”? – , but also beyond legal space, since they are lost in the midst of oceans, far from countries and their boundaries. Pirates seem to love liberty to such an extent that it would be difficult to contain them within a clearly determined legal framework.

4However, contemporary pirates no longer subscribe – as did some of their predecessors – to these anarchist-nihilistic motivations, which leads one to believe that they presented an alternative to the established order. If they also derive benefit from globalisation and its networks, it is to satiate their hunger for wealth, recognition, and fame. Currently, it is the divergence of interests as far as enforcement is concerned that explains-more than their supposedly rebellious nature – the difficulty in defining maritime piracy in legal terms. Therefore, the people responsible for the confusion are not the pirates, but their opponents.

5Aware of the impact of this phenomenon on their image, countries tend to opt for a narrow definition of piracy that they voluntarily limit to a single geographic area. The 1982 convention, concluded in Montego Bay in the framework of the United Nations echoes the terms of the 1958 Geneva Convention, pertaining to the high seas. This in its turn was based on the Harvard Research Draft of the 1930s and specified in article 101 that any of the following acts could be considered as piracy:

1. “ Any illicit act of violence or detention or any perversion committed by the crew or the passengers of a vessel or a private aircraft acting for personal motives and directed:
   • against a vessel or an aircraft, or against passengers and property on board, in the high seas;
   • against a vessel or an aircraft, or persons or property, in a zone not coming under the jurisdiction of any country.
2. Any act of voluntary participation in the utilisation of a vessel or an aircraft when the author is aware of the fact that the concerned vessel or aircraft is a pirate vessel or aircraft.
3. Any act inciting the commitment of the acts defined by a) and b) or committed with the intention of facilitating them”.

6This limited definition gives rise to two problems. The first is connected to the diplomatic situation prevailing in the region. If one takes into consideration article 101, piracy would not exist within the waters of each country where the attacks committed would be termed as simple armed robbery. The limit defined for territorial claims is generally fixed at 12 miles, to which the 1958 Convention added the continental plateaus. Since the Montego Bay Convention-which however does not deny the notion of continental plateau – this limit can also be extended to an exclusive economic zone of 200 nautical miles that can be redefined from just a small islet.

7Following complex cartographic manipulations, China estimates that its borders include a major part of the South China Sea. As a result, it could have seemed quite legitimate to the Chinese Customs officials to carry out activities of the “anti-smuggling war”, very far from the Chinese coast. The maritime community denounced as blatant acts of piracy that which Peking termed as fight against trafficking. The boundary of “territorial” waters is at stake here: it would be necessary to define the concerned maritime zone in order to determine the real nature of the acts. In a context where territorial limits are not clearly established, the definition coined at Montego Bay, applicable to the high seas, opens the door to a number of divergent interpretations and misuse of political and/or criminal nature.

8A second consubstantial limitation of the current legal definition of piracy: it allows Governments to introduce nuances that are solely dictated by their concern for their image. The Singapore Shipping Association has its own reservations, for example about the amalgamation that was made at the 1982 Convention of piracy and armed robbery at sea within territorial waters. This confusion would make it possible to amplify statistics, whereas according to the Association, the second category of incidents would be treated as risks due to the economic crisis. Reduced to extreme poverty, some would take to plundering from time to time and would try to seize on the high seas what others plunder on land, acting without a pre-established plan or support from any organisation at all. The main objective of these new sea bandits would be survival.

9During the meeting at Kuala Lumpur in November 2000, a majority of the participating countries had denounced the amalgamation of this petty crime and organised piracy. Experts have suggested restricting the definition of piracy to “trans national acts of detention and boarding of vessels on the high seas”322. According to some experts of the maritime industry, in this way the Nations would not only be seeking to enhance their image but also to avoid an increase in transportation and insurance costs.

10On their part, some Non-Governmental Organisations strive to protect the interests of sailors and their cargo. The Nippon Foundation, which is concerned about Japanese maritime transport, moots a broader approach to piracy, that it defines as “any hostile action such as boarding a vessel (which could also be docked) with the intention of robbery or committing any illegal act or using violence323”.

11The International Maritime Bureau has also opted for a broader definition since it includes armed robbery at sea in its agenda. By giving importance to the practical aspect of the definition and to the safety of sailors, the IMB includes in the notion of piracy “any act of boarding a vessel with the intent to commit theft or other crime with the capability to use force in furtherance the act324”.

12The Singapore Shipping Association estimates that the IMB has taken a particularly strict view of Southeast Asia whereas the waters of the Bay of Bengal are as dangerous. According to the Maritime and Port Authority of Singapore, the International Maritime Bureau, a private body, could very simply be trying to provide alarmist reports in the interests of its clients. Mr. Tan, a ship owner in Singapore, observes that the statistics of the IMB and those of the International Maritime Organisation seldom coincide325.

13As opposed to the countries, the objective of the IMB would be to highlight piracy in the straits. In fact, top maritime companies, including those who contribute to the financing of the Regional Centre for Piracy, an extension of the IMB in Southeast Asia, are considerably embarrassed. Among the active supporters of the Centre, are Japan P & I Club (Japan), Thoresen & Co. Ltd., (Thailand) and Seaarland Shipping Management Geselleschaft MBH (Austria). One can therefore question the credibility of the statistics and the criteria of the IMB, the flag bearer of the maritime companies.

14On their part, academics seem to be spared by these quarrels between the private and the public sectors. They often ask fewer questions by including under a single term piracy, mutiny, maritime terrorism, smuggling and even clandestine immigration. In any case, this is the attitude adopted by Samuel Pyeatt Menefee who is a reference in research on “maritime violence326”.

5.2. Towards a (Re-) Definition of Criteria

15The status of the various criteria, top priority for some, minor for others, adds to the confusion that surrounds the notion of piracy. If one tries to combine the different approaches (that of the historian and of the expert) and the diverse interests that are involved, (those of the maritime companies and of the Nations), the following could be the criteria of definition:

1. The location (on the high seas and/or in territorial waters);
2. The motives (strictly personal and perhaps political);
3. The amplitude and the target (cargo and/or only the possessions of the passengers);
4. The origin of the aggressors and the circumstances of their escape;
5. Use of threat and/or violence, as well as the techniques adopted
6. The reason (intention, incitation, and/or the participation in the utilisation of a vessel for pirate activities).

16The last two criteria constitute necessary but insufficient conditions. It is different for the first four, subject to the appraisal of each one’s interests.

5.2.1. The location: The link to the water element

17Nations are too attached to their sovereignty and to their image to readily admit that maritime piracy could prevail within their territorial waters. In this zone, acts of delinquency are supposedly termed as “murder”, “assault”, and “robbery” or more often “banditry”. Oriental expert Daniel Perret cites the example of the Malaysian Maritime Police that clubs together attacks committed in the territorial waters of the Federation and maritime banditry. In 1997, it recorded attacks against docked boats as simple thefts, whereas the IMB considered them to be acts of piracy327. Similarly, in November 2000, the ketua polis daerah of Kota Kinabalu (the chief of the local police) denied any act of piracy inside the port whereas the IMO had identified two incidents in 1999.

18The stakes are considerable given that according to the IMO, 62% of the attacks in Southeast Asia had taken place in the territorial waters in 1993, the figure of 80% being overtaken in the late 90s328.

19In the event of attacks on the high seas, defining the responsibilities and the losses of each country is delicate enough. When a vessel disappears, half a dozen countries are sometimes implicated according to the nationality of the ship owner, the merchandise and the crew329. Territorial considerations are therefore unwarranted in the face of a threat that is obviously transnational.

20Generally speaking, be it in a port or on the high seas, piracy is defined above all by the maritime element, specific in the sense that it represents an open space, without clearly demarcated boundaries.

21Coming to specific cases. What about fixed maritime installations? What about pirate attacks on land? The Montego Bay Convention as well as the International Maritime Bureau only mentioned attacks against ships. The attacks against oil-rigs however resemble acts of boarding vessels and the offenders are generally the same. The clauses signed in Rome in 1988, have a tendency to club them together.

22As for attacks on land, the problem is different. Certainly, the bolder ones could consider small islands as huge ships. This remains to be seen. Some West Indian buccaneers of the 17^th century like the Olonnois had not in any case hesitated to diversify their activities by leading impressive expeditions from the sea against Latin American cities.

23Times and places change but the approach hardly does. Just like their European counterparts in the past, the Malaysians who conduct raids on the coasts of Borneo, terrifying fishermen and amateur sailors, take advantage of the sea and the absence of a well-defined boundary in the seas. In fact, it is the sea-or more generally speaking, water-and the potential of escape that it represents that constitutes the greatest common denominator rather than the origin. Therefore, all those who either come from the sea, who attack vessels or installations that they come across, or use the open waters to make good their escape would be considered pirates. There could be no question of piracy without the connection to the water element – oceans, seas, rivers or streams. In a certain way, this would be the lowest common denominator.

5.2.2. Motivations – a false trail

24We have already said that western literature has often glamorised pirates. Thus, Tom Sawyer, the hero of American novelist Mark Twain, was plunged in a world of crime, but his motivation was not monetary330. Far from it. A rebel, he took up the career of a pirate under the name of “Black Avenger”, during an escapade on Jackson Island, on the banks of the Mississippi. However, one will note that pirates in fiction suffer less from material constraints than their models. They can portray themselves as having no personal motives, even though, in the history of piracy, the line had always been drawn between financial considerations, taste for adventure and more or less political missions. For example, Queen Elizabeth had knighted Francis Drake, the famous English pirate in 1581. He had the good taste-in the opinion of the Government-of exclusively attacking Spanish galleons. Less categorical in his approach, the French king simply pardoned a pirate who was sentenced to death for also having captured a Spanish vessel in 1526.

25Today, if terrorists resort to piracy in a political context, it often concerns only the first phase of their combat. Since it is only a question of criminals occasionally taking to the seas, can we consider that they are covered by our definition? Yes, if like the IMB experts, the motive does not seem to be a distinguishing criterion for us. No, if like the authors of the Montego Bay Convention, we consider only the personal motivations (read financial) for defining piracy331. Only those, whose sole objective is to rob vessels, would be pirates. If one accepts this definition, the cases of Achille Lauro and of City of Poros should not have been termed as acts of piracy.

26Nevertheless, let us note that organisations that are called terrorist can practice piracy within the framework of their mafia-like activities conducted simultaneously with their political dealings, often with the simple objective of ensuring finance. This is the case of the LTTE in Sri Lanka, which seeks to affirm its sovereignty over certain maritime zones, but which has also engaged in different types of trafficking and conducted numerous attacks on the seas to fill up its coffers. Further to the East, the pirates of the South China Sea hijacked some merchandise. But who is who? Are the aggressors only corrupt elements, the weak link of the customs or Chinese police having other motivations? It often seems to be primarily a question of getting rich – it would then amount to piracy-, but the ulterior benefits could prove to be of a more political nature.

27In a similar legal configuration, delinquent practices of Nations are excluded from piracy as well. When the Chinese Navy inspected Russian, Japanese or Hong Kong cargo ships in international waters, it clearly exceeded its customary prerogatives.

28Warships or civil boats belonging to a Nation and which would be engaged in attacks are excluded from the international conventions pertaining to piracy (articles 95 and 96 of the 1982 Montego Bay Convention, article 2 of the 1988 Rome Convention). Just like the pirates, some Nations could exploit this legal ambiguity since the activities of their ships would not resemble war-like acts, or armed conflicts. Thus this ambiguity is maintained by terming these crimes as “special operations” like the one that led to the sabotage of the Rainbow Warrior in the South Pacific332, unless some pirates in the South China Sea are only corsairs having the carte blanche of the Government authorities to act but their missions are not otherwise formalised.

29The appellation “war ship” or “property of the State” must however be applied carefully. It must involve a real control, recognised and undertaken by the Government authorities. Moreover, according to the texts, it would be necessary to distinguish between the movements similar to army attacks and attacks committed by “uncontrollable” elements. This is probably why the Montego Bay Convention terms as piracy the crimes perpetrated by rebels from ships belonging to States: “The acts of piracy as defined by article 101, perpetrated by a warship, a vessel or an aircraft belonging to a State, whose crew rebels and takes control, are considered as acts committed by a private vessel or aircraft”(article 102).

30Roger Faligot, expert on Chinese mafia amongst others has reiterated the idea according to which rebel Government officials would have initiated piracy in the China Seas. It was disclosed that an important meeting took place in 1996 in the Forbidden City of Peking. Admiral Liu Huaqing, Commander-in-chief of the Army, would have denounced the administrative structures, civil or military, regularly implicated in these incidents. In reality, it was the mafia that would have pulled the strings of these operations and disposed of the cargo, via companies that are well established in Macao or in Hong Kong333. Thus, it would be more a case of corruption than of manipulation.

31In the eyes of international law, Chinese Customs officials would have been considered uncouth pirates as they looked like rebels. One would thereby forget that these special operations could in fact have been secretly remote controlled by (Peking) and that the “uncontrollable elements” could be perfectly controlled. Here, one opens the door to a complex debate on the responsibility of Nations. What level of control can one expect a Government to exert over its army and its officials? To what extent must it be held responsible for exactions committed in its name by its employees?

32Apart from corsairs equipped with authorisation letters, rarely has one succeeded in clearly distinguishing between piracy stricto sensu and that which serves the interests of the Nations who sponsor it. Independent pirates, corrupt Government officials, manipulated pirates, new corsairs, and Special Forces are all mixed up. The difficulty lies, as we have seen, in the totally arbitrary interpretation of the criteria linked to the motivation of the attackers, which does not seem to us, by virtue of this fact, to constitute an element of a viable definition. The only solution could be to restrict oneself to appearances, to the direct and easily measured effects on the victims of the acts of piracy.

5.2.3. The amplitude of the act: A concrete criterion for evaluation

33The Maritime and Port Authority of Singapore stresses, as we have said, on what in its eyes, differentiates piracy from armed robbery at sea. In the first case, it was the cargo of a vessel that is targeted so that it could be sold in a parallel market. In the second case, only the objects of value belonging to the crew were targeted.

34In reality, while these two types of piracy appear to be poles apart, they are similar. There does not seem to be any limit to which one can seriously refer to decide if an act qualifies as piracy just as it would be specious to count the number of dead in order to ascertain if one can speak of war or otherwise. In any case, a danger threatens the crew and the cargo, irrespective of the value or damage finally done. Be it coastal banditry or international trafficking, the danger is patent and is the same in all situations. Similarly, the origin of the attackers is hardly important. If they attack from the sea, they conform more to the image that one generally has of piracy, but the fact that they can act from a port does not however disqualify them.

35Moreover, the texts specify very aptly that the members of the crew, as well as passengers acting as accomplices to the pirates, will also be termed as pirates. Even without being directly involved in a boarding, acts having the objective of inciting the perpetration of such exactions or even the usage of a pirate vessel, can be constituted as piracy. As for the technique used, it is hardly of any importance. Piracy includes attacks and acts of boarding ships. Most often it implies threats or usage of violence but the weapons of the criminals could vary considerably.

36With each crime identical issues surface: the swiftness and surprise of the attack, the difficulties of pursuit, and a link to water or to the seas. That is why it seems more reasonable to pay attention to the behaviour, as such, rather than to the location, motivations or the target.

5.2.4. From definition to the legal order

37Of course, it is not enough to identify the criteria to arrive at a code that is unanimously accepted. The exercise becomes all the more delicate as there is a big difference between a thoroughly trans national threat and a legal order that is still Nation - centred. When the International Penal Court becomes operational, it will be easier to designate criminals who have very quickly learnt to make full use of globalisation. Sooner or later, it will be essential to admit the reality of “free trade” of the pirates and to modify the legal order. A study had been conducted for workers of the European Union, while it is delayed for the pirates of the Asean. While treating terrorism, the International Penal Court could integrate the Rome Convention in its study and even more so, the acts of piracy identified indirectly by Article 3 of the 1988 text.

38Meanwhile the International Maritime Organisation has decided to facilitate legal initiatives as far as the anti-piracy war is concerned. Recently it coined an unpublished definition of acts pertaining to armed robbery at sea: “Any act of violence or of illegal detention or any act of devastation directed against a vessel or against the cargo on board within the jurisdiction of a Nation”. The Committee of Maritime Safety of the IMO is therefore no longer interested only in the high seas334. Its work constitutes a decisive step for envisaging a concerted reaction from the international community against maritime crime.