Maritime piracy: an auto-limitation approach

This study examines the problems we face in making a coherent theoretical link between the
international law of piracy and the law of the sea in the context of the rise in maritime piracy
in Africa over the past three decades. It focuses on four nations affected by piracy in the Gulf
of Guinea and Horn of Africa. Furthermore, the international law of piracy is concerned with
two types of jurisdiction: prescriptive jurisdiction and enforcement jurisdiction. However, the
law of the sea (UN Law of the Sea Convention) defines five types of jurisdiction: territorial
seas, exclusive economic zone (EEZ), the continental shelf, high seas, and seabed or seafloor
outside the area of claims of territorial seas under the EEZ. The above implies that where a
State that has enforcement jurisdiction is unable or unwilling to enforce prescribed
international laws against piracy, recourse ought to be had to a State with jurisdiction under
the law of the sea. The current thesis seeks to demonstrate that maritime piracy has
substantially increased in north-eastern and western parts of Africa because, albeit the
development of the law of the sea has transposed towards acknowledging the rights (and
obligations) of coastal States in order to defend their territorial seas with reference to the
piratical incursions, not enough attention has been given to the consequences flowing from
the fact that the coastal states in question do not possess the requisite resources and systems
to enforce international law and/ or prosecute pirates.

It is submitted here that piracy in its modern form in the Gulf of Aden and Gulf of Guinea is a
transnational crime that may best be contained through a regional legal infrastructure. It is
also argued that the multilateral approach of linking enforcement jurisdiction to Universal
Jurisdiction is problematic since it translates into ‘relational statism’ that is, where States
habitually pursue only their self-interests. As such, consistency and clarity in the international
legal situation may best be achieved by recourse to a traditional ‘auto-limitation’ approach
whereby jurisdiction is essentially territorial and can only be exercised by a State outside its
territory where it obtains the consent of the territorial State (perhaps through Convention or
Treaty) or in accordance with a permissive rule derived from international custom. Therefore
the thesis of this study suggests the need for legal reform. Chapter 1 provides the background
to the study as well as the framework for the research. The main research aims, objectives
and research questions are addressed in Chapters 2, 3, 4, 5 and 6. Chapter 7 concludes the
research by presenting the findings and recommendations together with an outline of the
research contribution.