The Prosecution of Pirates and the Enforcement of Counter-Piracy Laws Are Virtually Incapacitated by Law Itself

The legal framework to fight and suppress piracy is embodied largely in the United Nations Convention on the Law of Sea (“UNCLOS”), 1982, which is supplemented by United Nations Security Council Resolutions, and international conventions and treaties. This Article aims to critique the existing legal framework against piracy and challenge its efficacy in successfully curbing and eradicating piracy around the world throughout history. Unlike the extensive literature on legal studies of piracy, this Article recognizes piracy as a global menace, rather than observing it through the lens of regional differences. Consequently, this Article seeks to identify creeks and holes within the definitional and jurisdictional approach toward counter-piracy laws.

The legal requirements under the UNCLOS definition of piracy, such as the violence requirement, the private ends requirement, the private ship requirement, the two-ship requirement, and the high seas requirement will be comprehensively explored in this Article. These characteristics of the definition of piracy will be examined as impediments to the enforcement of counter-piracy laws. Likewise, in addition to the definitional approach, the jurisdictional concerns that impair the execution of the counter-piracy legal framework will be extensively discussed. Within this context, legislative issues, law enforcement issues, and adjudicative concerns, with special regard to particular matters of valid arrest requirements, TFG consent, and human rights perspectives, will be scrutinized in depth as obstructions to the prosecution of pirates and the enforcement of counter-piracy laws.