Maritime piracy : an auto-limitation approach

This study examines the problems we face in making a coherent theoretical link between the \ninternational law of piracy and the law of the sea in the context of the rise in maritime piracy \nin Africa over the past three decades. It focuses on four nations affected by piracy in the Gulf \nof Guinea and Horn of Africa. Furthermore, the international law of piracy is concerned with \ntwo types of jurisdiction: prescriptive jurisdiction and enforcement jurisdiction. However, the \nlaw of the sea (UN Law of the Sea Convention) defines five types of jurisdiction: territorial \nseas, exclusive economic zone (EEZ), the continental shelf, high seas, and seabed or seafloor \noutside the area of claims of territorial seas under the EEZ. The above implies that where a \nState that has enforcement jurisdiction is unable or unwilling to enforce prescribed \ninternational laws against piracy, recourse ought to be had to a State with jurisdiction under \nthe law of the sea. The current thesis seeks to demonstrate that maritime piracy has \nsubstantially increased in north-eastern and western parts of Africa because, albeit the \ndevelopment of the law of the sea has transposed towards acknowledging the rights (and \nobligations) of coastal States in order to defend their territorial seas with reference to the \npiratical incursions, not enough attention has been given to the consequences flowing from \nthe fact that the coastal states in question do not possess the requisite resources and systems \nto enforce international law and/ or prosecute pirates. \n \n \nIt is submitted here that piracy in its modern form in the Gulf of Aden and Gulf of Guinea is a \ntransnational crime that may best be contained through a regional legal infrastructure. It is \nalso argued that the multilateral approach of linking enforcement jurisdiction to Universal \nJurisdiction is problematic since it translates into ‘relational statism’ that is, where States \nhabitually pursue only their self-interests. As such, consistency and clarity in the international \nlegal situation may best be achieved by recourse to a traditional ‘auto-limitation’ approach \nwhereby jurisdiction is essentially territorial and can only be exercised by a State outside its \nterritory where it obtains the consent of the territorial State (perhaps through Convention or \nTreaty) or in accordance with a permissive rule derived from international custom. Therefore \nthe thesis of this study suggests the need for legal reform. Chapter 1 provides the background \nto the study as well as the framework for the research. The main research aims, objectives \nand research questions are addressed in Chapters 2, 3, 4, 5 and 6. Chapter 7 concludes the \nresearch by presenting the findings and recommendations together with an outline of the \nresearch contribution.