CYIL vol. 14 (2023)

CYIL 14 (2023) THE WORK OF THE INTERNATIONAL LAW COMMISSION AT THE BEGINNING … decided to place the topic “Prevention and repression of piracy and armed robbery at sea” on its current programme of work and appointed Mr. Yacouba Cissé as Special Rapporteur. 13 In 2023, the Commission had before it the First report of the Special Rapporteur, 14 where he reviewed the status of the applicable law, in particular multilateral instruments (the 1958 Convention on High Seas and the 1982 United Nations Convention on the Law of the Sea), as well as relevant international jurisprudence. The study of the topic is essentially based on a regional approach, taking into account practice of all States with a real or potential interest in protecting the seas against piracy and armed robbery. 15 Accordingly, chapters II to VI of the report address the issue of piracy and armed robbery at sea in Africa, Asia, the Americas and the Caribbean, Europe, and Oceania. All chapters analyse both legislative and judicial practice, some of them pay special attention to the approach of judges in criminal cases with regard to the interpretation of Article 101 of the United Nations Convention that comprises the definition of piracy. In chapter I, the Special Rapporteur also identified some shortcomings of the applicable international legal framework. The first shortcoming is the partitioning of the seas into several maritime spaces which have distinct legal regimes. This differentiation of legal regimes complicates any attempt to define the crime of maritime piracy. While the traditional legal definition of piracy links it exclusively to the high seas, modern piracy (or acts similar to piracy) is increasingly seen along coastlines. Some national statutes consider the crimes of armed robbery at sea and piracy to be two different forms of crime, while statutes of other countries do not differentiate them. However, the piracy (in broad sense) defined under domestic law would not give rise to the application of universal jurisdiction. The second shortcoming concerns the motive for the crime, which is described as being for “private ends” in both the United Nations Convention on the Law of the Sea and the Convention on the High Seas. The formulations of the motive to seek financial gain can differ from one statute to another. The third shortcoming is the element of the definition of piracy under Article 101 of the United Nations Convention that requires an attack by one ship against another ship. The fourth shortcoming was found in the notion of a private ship, or rather the assimilation of a governmental ship to a private ship under Article 102 of the UN Convention. The fifth shortcoming is to be found in the soft wording used (e.g., “every State may seize” in Article 105), with no obligation imposed on States to prosecute and punish pirates. The sixth shortcoming is the tendency to make the absence of national legislation a reason not to prosecute pirates after having arrested them. 16 In the end of the First report, the Special Rapporteur proposed three draft articles, subsequently discussed and provisionally adopted by the Drafting Committee. 17 Next, the Commission provisionally adopted draft Article 1 (Scope) and draft Article 2 (Definition of piracy).

13 Report of the International Law Commission on the work of its seventy-third session, Official Records of the General Assembly, Seventy-seventh Session, Supplement No. 10 (A/77/10), para. 239. 14 First report on prevention and repression of piracy and armed robbery at sea, UN doc. A/CN.4/758 (2023). 15 Ibid., p. 25. 16 Ibid., pp. 17–21. 17 See UN doc. A/CN.4/L.984 (2023).

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