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Piracy and Armed Robbery at SeaThe Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden$

Anna Petrig and Robin Geiß

Print publication date: 2011

Print ISBN-13: 9780199609529

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199609529.001.0001

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(p.229) Harvard Draft Convention on Piracy1

(p.229) Harvard Draft Convention on Piracy1

Piracy

Source:
Piracy and Armed Robbery at Sea
Publisher:
Oxford University Press

Article 1

As the terms are used in this convention:

  1. 1. The term “jurisdiction” means the jurisdiction of a state under international law as distinguished from municipal law.

  2. 2. The term “territorial jurisdiction” means the jurisdiction of a state under international law over its land, its territorial waters and the air above its land and territorial waters. The term does not include the jurisdiction of a state over its ships outside its territory.

  3. 3. The term “territorial sea” means that part of the sea which is included in the territorial waters of a state.

  4. 4. The term “high sea” means that part of the sea which is not included in the territorial waters of any state.

  5. 5. The term “ship” means any water craft or air craft of whatever size.

Article 2

Every state has jurisdiction to prevent piracy and to seize and punish person and to seize and dispose of property because of piracy. This jurisdiction is defined and limited by this convention.

Article 3

Piracy is any of the following acts, committed in a place not within the territorial jurisdiction of any state:

  1. 1. Any act of violence or of depredation committed with intent to rob, rape, wound, enslave, imprison or kill a person or with intent to steal or destroy property, for private ends without bona fide purpose of asserting a claim of right, provided that the act is connected with an attack on or from the sea or in or from the air. If the act is connected with an attack which starts from on board ship, either that ship or another ship which is involved must be a pirate ship or a ship without national character.

  2. 2. Any act of voluntary participation in the operation of a ship with knowledge of facts which make it a pirate ship.

  3. 3. Any act of instigation or of an intentional facilitation of an act described in paragraph 1 or paragraph 2 of this article.

(p.230) Article 4

  1. 1. A ship is a pirate ship when it is devoted by the persons in dominant control to the purpose of committing an act described in the first sentence of paragraph 1 of Article 3, or to the purpose of committing any similar act within the territory of a state by descent from the high sea, provided in either case that the purposes of the persons in dominant control are not definitely limited to committing such acts against ships or territory subject to the jurisdiction of the state to which the ship belongs.

  2. 2. A ship does not cease to be a pirate ship after the commission of an act described in paragraph 1 of Article 3, or after the commission of any similar act within the territory of a state by descent from the high sea, as long as it continues under the same control.

Article 5

A ship may retain its national character although it has become a pirate ship. The retention or loss of national character is determined by the law of the state from which it was derived.

Article 6

In a place not within the territorial jurisdiction of another state, a state may seize a pirate ship or a ship taken by piracy and possessed by pirates, and things or persons on board.

Article 7

  1. 1. In a place within the territorial jurisdiction of another state, a state may not pursue or seize a pirate ship or a ship taken by piracy and possessed by pirates; except that if pursuit of such a ship is commenced by a state within its own territorial jurisdiction or in a place not within the territorial jurisdiction of any state, the pursuit may be continued into or over the territorial sea of another state and seizure may be made there, unless prohibited by the other state.

  2. 2. If a seizure is made within the territorial jurisdiction of another state in accordance with the provisions of paragraph 1 of this article, the state making the seizure shall give prompt notice to the other state, and shall tender possession of the ship and other things seized and the custody of persons seized.

  3. 3. If the tender provided for in paragraph 2 of this article is not accepted, the state making the seizure may proceed as if the seizure had been made on the high sea.

Article 8

If a pursuit is continued or a seizure is made within the territorial jurisdiction of another state in accordance with the provisions of paragraph 1 of Article 7, the state continuing the pursuit or making the seizure is liable to the other state for any damage done by the pursuing ship, other than damage done to the pirate ship or the ship possessed by pirates, or to persons and things on board.

Article 9

If a seizure because of piracy is made by a state in violation of the jurisdiction of another state, the state making the seizure shall, upon the demand of the other state, surrender or release the ship, things and persons seized, and shall make appropriate reparation.

(p.231) Article 10

If a ship seized on suspicion of piracy outside the territorial jurisdiction of the state making the seizure, is neither a pirate ship nor a ship taken by piracy and possessed by pirates, and if the ship is not subject to seizure on other grounds, the state making the seizure shall be liable to the state to which the ship belongs for any damage caused by the seizure.

Article 11

  1. 1. In a place not within the territorial jurisdiction of any state, a foreign ship may be approached and on reasonable suspicion that it is a pirate ship or a ship taken by piracy and possessed by pirates, it may be stopped and questioned to ascertain its character.

  2. 2. If the ship is neither a pirate ship nor a ship taken by piracy and possessed by pirates, and if it is not subject to such interference on other grounds, the state making the interference shall be liable to the state to which the ship belongs for any damage caused by the interference.

Article 12

A seizure because of piracy may be made only on behalf a state, and only by a person who has been authorized to act on its behalf.

Article 13

  1. 1. A state, in accordance with its law, may dispose of ships and other property lawfully seized because of piracy.

  2. 2. The law of the state must conform to the following principles:

    1. (a) The interests of innocent persons are not affected by the piratical possession or use of property, nor by seizure because of such possession or use.

    2. (b) Claimants of any interest in the property are entitled to a reasonable opportunity to prove their claims.

    3. (c) A claimant who establishes the validity of his claim is entitled to receive the property or compensation therefor, subject to a fair charge for salvage and expenses of administration.

Article 14

  1. 1. A state which has lawful custody of a person suspected of piracy may prosecute and punish that person.

  2. 2. Subject to the provisions of this convention, the law of the state which exercises such jurisdiction defines the crime, governs the procedure and prescribes the penalty.

  3. 3. The law of the state must, however, assure protection to accused aliens as follows:

    1. (a) The accused person must be given a fair trial before an impartial tribunal without unreasonable delay.

    2. (b) The accused person must be given humane treatment during his confinement pending trial.

    3. (c) No cruel and unusual punishment may be inflicted.

    4. (d) No discrimination may be made against the nationals of any state.

  4. (p.232) 4. A state may intercede diplomatically to assure this protection to one of its nationals who is accused in another state.

Article 15

A state may not prosecute an alien for an act of piracy for which he has been charged and convicted or acquitted in a prosecution in another state.

Article 16

The provisions of this convention do not diminish a state's right under international law to take measures for the protection of its nationals, its ships and its commerce against interference on or over the high sea, when such measures are not based upon jurisdiction over piracy.

Article 17

  1. 1. The provisions of this convention shall supersede any inconsistent provisions relating to piracy in treaties in force among parties to this convention, except that such inconsistent provisions shall not be superseded in so far as they affect only the interests of the parties to such treaties inter se.

  2. 2. The provisions of this convention shall not prevent a party from entering into an agreement concerning piracy containing provisions inconsistent with this convention which affect only the interests of the parties to that agreement inter se.

Article 18

The parties to this convention agree to make every expedient use of their powers to prevent piracy, separately and in co-operation.

Article 19

  1. 1. If there should arise between the High Contracting Parties a dispute of any kind relating to the interpretation or application of the present convention, and if such dispute cannot be satisfactorily settled by diplomacy, it shall be settled in accordance with any applicable agreements in force between the parties to the dispute providing for the settlement of international disputes.

  2. 2. In case there is no such agreement in force between the parties to the dispute, the dispute shall be referred to the arbitration or judicial settlement. In the absence of agreement on the choice of another tribunal, the dispute shall, at the request of any one of the parties to the dispute, be referred to the Permanent Court of International Justice, if all the parties to the dispute are parties to the Protocol of December 16, 1920, relating to the Statute of that Court; and if any of the parties to the dispute is not a party to the Protocol of December 16, 1920, to an arbitral tribunal constituted in accordance with the provisions of the Convention for the Pacific Settlement of International Disputes, signed at The Hague, October 18, 1907.

Notes:

(1) The Draft Convention on Piracy, Supplement: Research in International Law, Part IV – Piracy, 26 American Journal of International Law 739–747 (1932).