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.


Temporarily Out of Fashion: Somalian Piracy. Temporarily In Fashion: Viking Piracy.

I realized this morning, to my intense disappoint, that International Talk Like a Pirate Day was yesterday, and I completely missed it. This won’t happen again, I’ve already programmed it into my phone so there’s no chance of me missing it next year. But to make up for my laxness, I’m declaring today International Pirate Blogging Day and celebrating that by giving an update on the somewhat under-reported story of the Arctic Sea. The Arctic Sea was captured by pirates last July before going MIA on an ocean voyage from Sweden to Africa, and the theories surrounding the whole incident sound suspiciously like the plot of Dan Brown novel.

The (roughly known) facts: The Arctic Sea is a Maltese-flagged ship, owned by a Finnish company, which is in turn owned and run by a Russian citizen living in Finland. which when the hijacking occurred had left port from Finland bound for Algeria, with a cargo of timber (owned by a separate company also controlled by the same Russian citizen who owned the ship) worth $1.7 million on board. Around July 24, the Arctic Sea was then captured off the coast of the lawless, warlord controlled territory of Sweden, but this was not reported publicly. Contact was lost with the ship around July 31, during which time the ship chugged down through the English Channel, around the Iberian peninsula, and then remained missing for a number of weeks. On August 17th, Russia successfully recaptured the ship off the coast of Africa near the island nation of Cape Verde. There were no reported injuries. The eight (ten?) hijackers are apparently ethnic Russians, who speak English, and are either stateless or hold passports to Russia, Latvia or Estonia. As an additional point of confusion, when captured off of Africa the ship’s captain “unexpectedly claimed” to be the North Korean ship Congdin 2, en route from Cuba to Sierra Leone — but as far as I can gather, essentially no one has any idea what the hell that was all about.

Russia announced it would be taking the ship back to a Russian port. Instead, the ship next turned up at the Canary Islands, where it remains in limbo as Spain continues to refuse entry to the Arctic Sea. Malta, where the ship is flagged, has been involved in the negotiations but apparently wants to wash its hands of the whole thing. Russia is less than pleased, and announced that:

“The decision of the Maltese authorities has puzzled the Russian Investigative Committee. Moreover, it contradicts international maritime law. The Maltese action makes the ship docking in the Spanish port of Las Palmas problematic. This also creates problems for the ship’s crew because they are running out of fuel and drinking water[.]”

Far as I can make out, the ship’s still bobbing about in the waters off of Las Palmas, but transfer of the ship to the original owners is being organized. Meanwhile, all the pirates are back in Russia and are currently facing prosecution.

The conspiracy theories: There are dozens of theories out there, but the major claim being made seems to be this whole deal was really about “Russian mobsters selling missiles and/or air defense shields to Iran.” The most convoluted of these tales involve Israel’s Mossad being responsible for the diversion of the ship’s trip to Iran:

Another theory is that Mossad concocted the alleged hijacking by setting up a criminal gang, who were unlikely to have known anything about a secret cargo, instead blocking the route to Iran by the mounting media interest.

“Once the news of the hijack broke, the game was up for the arms dealers. The Russians had to act,” said a former Russian army officer. “That’s why I don’t rule out Mossad being behind the hijacking. It stopped the shipment and gave the Kremlin a way out so that it can now claim it mounted a brilliant rescue mission.”

One serious problem for fans of this theory: Why the heck would Israel entrust the recapture of an arms smuggling ship to a bunch of drug addicted bar brawlers? (Additional note to the hijackers: Fire your lawyers. No one believes y’all were members of a stranded environmentalist group trying to “document environmental abuses.” If that’s the best cover story you’ve got, you’re in big trouble.)

And while it seems like something fishy was going on, given the extreme shortage of reliable reporting out there, its hard to tell right now if it’s anything more sinister than a bunch of deluded Russians becoming the Keystone Kops of the piracy world. Because this was the most incredibly awkward ship hijacking the world has seen since Blackbeard was a teenager. The only thing clear about this whole mess is that the pirates were basically a bunch of dogs chasing a car, and they had no idea what to do with the ship once they actually captured it. So they just decided to cruise it down to Cape Verde for the heck of it.

However, combined with recent diplomatic trips by Israel’s president to Russia to discuss Iranian relations the day after the Arctic Sea was found, as well as the cancellation of the U.S. missile shield plans in Poland and the Czech Republic, there’s enough fodder there for the conspiracy theorists to last them for months.