Here, Have Some More Pirates — Part I

Sadly, with regards to the hijacking of the Arctic Sea, as of yet there does not appear to be a factual basis for any truly interesting questions of jurisdiction, despite the proliferation of nations involved with strong jurisdictional claims over some or all of the hijacking. Russia has asserted full jurisdiction over the incident, and at the moment it does not appear any other nations are objecting. The hijackers, now in Moscow, have been charged under the Russian criminal code for piracy and kidnapping:

“On the strength of the gathered evidence, seven captors have been charged with complicity in the commission of the crimes covered by Article 227, Part 3 and Article 126, Item “a”, Part 3 (piracy and kidnapping committed with the use violence and arms by organized group). The eighth suspect has been charged with masterminding the above crimes,” Markin said.

However, it looks as if the hijackers themselves have been making noises about the propriety of Russian jurisdiction over them, both under international law and domestic Russian law:

According to Russian media, hijacking suspects say their case should be heard not in Russia but in Malta, or Sweden – in whose Baltic Sea waters the alleged hijacking occurred. But Bastrykin stressed that Russia now has jurisdiction over the ship and the suspects.

“We have the full legal right to conduct investigative activities with both the ship and its crew,” he was quoted as saying.

Egons Rusanovs, a lawyer at Rusanovs and Partners, says:

Russia has no relation to the current preliminary investigation into this case. This fact contradicts concrete norms of international law, in particular, the convention on maritime law adopted in 1982. This case should be under jurisdiction of either Malta or Sweden.

Dmitry Pronin, a lawyer who represents detained Latvian citizen Vitalij Lepin, believes that “this arrest is illegal and it’s without ground, because in accordance with the Russian Criminal Code, the type of punishment should be decided within 48 hours after the factual detention. In this case it took four days to specify the preventive punishment.”

It’s hard to know if there’s any weight to the hijacker’s arguments without more than that, but I’m highly skeptical about their chances of prevailing on that front. Under the Article 105 of the UN Convention on the Law of the Sea (“UNCLOS”),

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

This article reflects longstanding customary international law that grants universal jurisdiction over all acts of piracy on the high seas, and that any state may capture and punish pirates wherever they may be found where they are outside of any other state’s territory. Assuming Russia did capture the Arctic Sea in international waters, Russia is soundly exercising its universal jurisdiction by bringing the pirates to Moscow to stand trial under Russian law. I expect the hijackers are trying to argue they were never pirates in the first place, and so Article 105 is not applicable, but that’s questioning the factual basis of jurisdiction, not the legal basis.

Moreover, while it is hard to get a straight story on the nationalities of the hijackers, all of the Arctic Sea’s crew were Russian, and the hijackers were themselves either Russian or stateless people who habitually lived in Russia. Under Article 6(1)(c) of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, this gives Russia some degree of an international obligation to establish jurisdiction over the pirates, and under 6(2)(a) and (b) clearly had the right to exercise such jurisdiction if it chose to do so.

So if Russia captured the pirate on the high seas, under a combination of passive personality jurisdiction, active personality jurisdiction, universal jurisdiction, and specific grants of jurisdiction under treaties, there is little argument to be made that Russia does not properly have jurisdiction over the pirates.

However, an important question that I’ve not seen definitively answered yet is where exactly in the Atlantic the Arctic Sea was captured by the Russian warship. Was it on the high seas, or in Cape Verde’s territorial waters? UNCLOS provisions on the seizure of pirates extend only to the high seas. Once in a nation’s territorial seas, authorization by the coastal state is required before any such enforcement action can be taken.

All I’ve been able to find on the exact location of the recapture is this:

“I have a report from the Russian Navy that the frigate is going to enter Cape Verde territorial waters,” Alexander Karpushin told the Russian News Service. “The warship has its own search plan.”

Cape Verde has declared that its territorial seas extend to the full 12 miles permitted under international law (see here [DOC]). Although the Russian warship would have had a right of innocent passage within that 12 mile territorial sea if the actual capture took place inside that limit, the question of jurisdiction gets trickier:

“[I]t is universally accepted under international law that law enforcement officials of one state may not act to enforce their laws in areas within the territorial sovereignty of another state. Therefore, the naval vessels or marine police from one state may not enter the internal waters, territorial waters or archipelagic waters of another state to patrol for pirates or to arrest persons for acts of piracy, regardless of where such acts took place.”

Of course, even if the Arctic Sea was in Cape Verde’s sovereign territory, Russia might well have obtained Cape Verde’s authorization before undertaking the capture. In part II of this post, I’ll take a look at what the legal status of Russian jurisdiction might be under the hypothetical scenario that no such authorization was sought or obtained.

-Susan

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