Maritime Piracy during the Covid-19 Pandemic
By: Gerardo Javier Ponce Reyes
On this occasion, we have decided to talk about a topic of great interest and impact on the maritime sector: maritime piracy in times of the Covid-19. Especially considering that in the case of maritime transport, the International Maritime Organization (IMO) along with the World Health Organization (WHO), the International Chamber of Shipowners (ICS) and the International Federation of Transport Workers (ITF), have come up with guidelines and a series of recommendations for pertinent governments and authorities on how to facilitate maritime trade during the Covid-19 pandemic and guarantee all logistics such as port operations while ensuring and preserving the health and safety of human beings; and guaranteeing the normal functioning of food supply and distribution chains, medicines and basic supplies that support human way of life as we know it.
According to the latest figures of the United Nations Conference on Trade and Development (UNCTAD), more than eighty percent (80%) of the world’s merchandise trade in volume and seventy percent (70%) in value are transported by sea. For this purpose, there is a fleet of more than 49,000 vessels, which includes oil tankers, bulk carriers, container ships, general cargo ships and cruise ships.
Taking into account that this coronavirus disease pandemic has substantially impacted people’s lives and livelihoods and has caused extreme stress on the world’s socioeconomic systems, UNCTAD has suggested a 10 point
s action plan to strengthen international trade and transport facilitation in times of the coronavirus pandemic (COVID-19).
UNCTAD suggests that this plan will be of major relevance to successfully face and overcome this unprecedented global challenge as well as to reduce the international spread of the virus and mitigate the potentially devastating long-term consequences of the pandemic, especially for the most vulnerable countries. Competent authorities and policymakers need to take into account a series of measures to ensure of international trade operations and transport of goods, which it is crucial to keep vessels moving, ports open and operational and cross-border trade and transit trade robust, while ensuring that border agencies can safely undertake all necessary controls.
Maritime Piracy and its regulation
It is well-known that planet earth is convulsed nowadays due to COVID-19. The World Health Organization (WHO) declared on March 11, 2020 that the outbreak derived from COVID- 19 or Chinese virus was a pandemic. During this period, piracy attacks and armed robberies as well as other criminal activities in aquatic areas, have increased as Dr. Belisario correctly points out “an enormous aspect of organized crime is currently a network of perpetuated violence and corruption, harmful activities that coldly collect the pages of newspapers and magazines in places where these media instruments work freely and properly. These criminal actions also take place in different maritime areas, but mainly in areas outside national jurisdiction.”
The fact that such criminal activities represent a scourge that travels the world nowadays, and that the phantom of piracy represents a crime against international law and consequently against humanity itself, is indisputable.
Nevertheless, it is appropriate to mention that piracy originated almost simultaneously with the beginning of sea navigation, that is to say, since maritime trade has existed, there have been criminals in the seas.
Since the very moment that human beings began to use the sea as a means of transporting goods for commercial exchange, others took advantage of it in order carry out criminal activities of predation against vessels, people or goods on board such ships.
In the international field, the Article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), reproduces almost textually the content of Article 15 of the 1958 Convention on the High Seas, defining international piracy, as follows: “Piracy consists of any of the following acts: a) Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft, and directed: (i). On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii). Against a ship, aircraft, persons or property in a place outside not subject the jurisdiction of any State; b) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; c) Any act of inciting or of intentionally facilitating an act described in subparagraph a) or section b).
Likewise, an act of piracy in the international sphere is considered to be any act committed by warships or by state ships, dedicated to the acts stipulated in article 101 of the aforementioned convention, whose crew has mutinied and seized the ship or aircraft, in accordance with the provisions of article 102 of the UNCLOS – 1982.
This allows us to state that, from international law standpoint, acts of violence against ships or aircrafts, especially those committed in the port or jurisdiction of a State, would not be considered by international law as acts of piracy as such, but as acts of armed robbery against ships.
Regarding Venezuela, criminal offenses related to crimes at sea, including armed robbery, are mainly criminalized in the Criminal Code, and everything related to piracy is therein regulated.
Article 152 of the Criminal Code defines piracy at the national level as: “… This crime is incurred by those who, governing or manning a ship not belonging to the Navy of any Nation, nor provided with a letter of marque duly issued, or as part of an armed corps on board, attack other ships or carry out depredations on them or in the places on the coast where they arrive, or declare themselves in rebellion against the Government of the Republic”.
Notwithstanding the above, the crime of piracy set out by article 152 of the Criminal Code applies both to piracy practiced on high seas, as well as to committed in national waters and on homeland coasts, which were not regulated by the Geneva Conventions of 1958, let alone UNCLOS – 1982, since in accordance with international law, the classification and/or typification of any crime to domestic criminal law corresponds to each State. This criteria, for example, is the one that courts in Singapore have taken when considering that piracy applies both to criminal activities committed on high seas, as well as those committed in national waters and coasts of that country, against vessels located inside their aquatic spaces.
This does not mean though that the qualification and/or typification made by Venezuelan law must be recognized by other States, as was the case of the German M/V Falke, used by Román Delgado Chalbaud in 1929 to invade the Venezuelan coasts. The vessel was considered as a pirate ship by the Venezuelan Government, based on Venezuelan criminal law, while the German Government did not consider that it was an act of piracy in accordance with international law, because piracy is a criminal activity practiced in a places outside not subject the jurisdiction to any State.
Another important difference to highlight between article 152 of the Criminal Code and the regulations in the International Conventions on the Law of the Sea, is that these refer to acts committed by a pirate ship to a ship that would be the victim of the piracy or property or people on board such ship, which is what differentiate piracy from hijacking. In this sense, article 152 of the Criminal Venezuelan Code also includes the acts that are committed “… in the places on the coast where they arrive or declare themselves in rebellion against the Republic”.
On the other hand, it is appropriate to point out that Article 152 of the Criminal Code does not consider a piracy crime when such is provided with a letter of marque, since in the Venezuelan case, the privateering figure is still in force according to Venezuelan Law.
As Dr. Villarroel points out, one of the differences found between pirates and corsairs is that the latter enjoyed the license or permission of the governments of the States of their respective flags to carry out acts of seizure, looting and destruction of ships belonging to enemy states, so they would not be committing crimes in the eyes of their own states.
Likewise, it is worth mentioning that existence requirements of piracy, as established in Article 152 of the Criminal Code, and of armed robbery, as qualified by article 457 of the same Criminal Code, concur in many aspects, due to the requirement of the elements of: violence, seizure of property on board and profit. However, the fundamental difference between both crimes lies in the geographical area where the crime is committed; that is, in the case of a vessel, for there to be armed robbery and not piracy, the ship must be located and docked at the dock and not in the sea, sailing or anchored.
That being said, it is worth noting that the criminal activity of piracy has become a serious threat to the freedom, security and navigation of ships, their crews and even the international community, since it is a very lucrative activity within the international organized crime.
Piracy and armed robbery during the COVID-19 Pandemic in Maritime Transport
Acts of piracy perpetrated against any type of vessels have been increasing during the Covid-19 Pandemic in various areas of the world with greater violence in its way of acting, which undoubtedly constitutes a serious danger and scourge for international maritime trade and for humanity.
The position that the European Union has taken supports the necessity to repel attacks of the Somali pirates using warships that, even when not sailing under the same flag, would be ready to protect the same interests. In other words “the vessel patrolling acts as an organ that validly represents the world community in this matter, since pirates are considered hostis humanis generis”.
When it comes to piracy acts, their perpetrators do not know of any type of restrictions. Regardless the type of vessel, nothing prevents it from being the object of acts of piracy, as has been registered both in international waters and on the coasts of some countries such as Colombia, Peru, Mexico, Venezuela, and others.
According to the latest report from the United Nations Conference on Trade and Development (UNCTAD) global trade and economic output stagnated in 2019, according to its analysis of the Handbook of Statistics 2019.
They also point out that world maritime trade lost momentum in 2018 as heightened uncertainty, escalating tariff tensions between China and the United States of America, and mounting concerns over other trade policy and political crosscurrents sent waves through global markets, as indicated in its Maritime Transport Report 2019. 
As a result, international maritime trade lost momentum during 2018, with volumes increasing 2.7%, below historical averages of 3.0% and the 4.1% recorded during 2017. However, total volumes are estimated to have reached 11 billion tons, an all-time high, according to UNCTAD records. It is foreseen that there was a growth of 2.6% in 2019.
Furthermore, UNCTAD had mentioned in their report that oversupply remained a prominent characteristic of most shipping segments. During early 2019, total world fleet capacity stood at 1.97 billion DWT , after a 2.61% growth – the slowest growth of the decade. Gas carriers experienced the highest growth (7.25% during the 12 months to January 2019), mainly due to significant expansion in the liquefied natural gas sector. This trend is expected to continue in view of the mounting environmental concerns and pressure from IMO and the international maritime community to switch to cleaner fuels. The world container fleet also continued to increase (5%). In comparison, the chemical-tanker and dry-bulk-carrier segments registered stable growth, and the oil tanker segment underwent a downward trend. Bulk carriers recorded the highest level of ship deliveries, representing 26.7% of total gross tonnage built in 2018, followed by oil tankers (25%), container ships (23.5%) and gas carriers (13%). Since 2014, there has been a trend towards an increased number of container-ship and gas-carrier new buildings, compared with the number of new buildings of oil tankers and dry bulk carriers, which has decreased. This can be attributed to greater demand for container ships of large capacity (above 15,000 TEUs) and less demand for oil tankers and bulk carriers as a result of the existing oversupply in those segments.
Nevertheless, according to estimations of the World Trade Organization, a drastic reduction in world trade in 2020 is expected from between 13% to 32% as a consequence of the affectation of world economic activity as a consequence of the global Pandemic.
UNCTAD in its 2019 annual report on Maritime Transport (Review of Maritime Transport 2019) express “Maritime transport remains the backbone of globalized trade and the manufacturing supply chain, as more than four fifths of world merchandise trade by volume is carried by sea. However, growth in international maritime trade fell slightly in 2018, owing to softer economic indicators amid heightened uncertainty and the build-up of wide-ranging downside risks. This decline reflects developments in the world economy and trade activity. Volumes increased at 2.7%, below the historical average of 3.0% from 1970–2017 and 4.1 per cent in 2017. Nonetheless, total volumes reached a milestone in 2018, when they achieved an all-time high of 11 billion tons – the first time on UNCTAD record… Dry bulk commodities, followed by containerized cargo, other dry bulk, oil, gas and chemicals, contributed the most to this growth.”
Piracy has been a serious concern for the international community for a long time. According to data from the IMB Piracy Information Center, the four regions of the world where there is a high risk of piracy are: The Strait of Malacca area; The Horn of Africa / Somali Coast; The Niger Delta area and, The Caribbean and the Panama Canal. What such have in common is that they are areas of great maritime traffic, where State authority is difficult to apply.
As the author Garat Pérez mentioned, piracy activity in the Strait of Malacca has greatly decreased thanks to the efforts of Indonesia and Malaysia, supported by several western countries, which have intensified the means of warning and protection against piracy, thus hindering their action. In the Niger Delta, the expansion of oil platforms is combined with the existence of violent groups, together with limited capacity of the State to repress them. The situation in Somalia has been particularly worrying: the instability and insecurity that Somalia has experienced since the fall of the Government in 1991, considered de facto a “failed” state, has revitalized and leveraged piracy. Today, it is a sanctuary for all kinds of criminal activities. Its geographical location makes it the ideal territory to establish the bases of action for pirates. The main difference between piracy in Somalia and other areas is that the Somali pirates’ goal is to obtain ransom for ships and their crews, while in the rest of the world it is theft.
The importance for the maritime trade of the Indian Ocean is undisputable since two thirds of the total freight of tanker ships transits through this area; half of the cargo in containers and a third of the cargo in bulk. In addition, 20% of world tuna fishing takes place there.
Faced with the considerable increase in pirate attacks in the area, the international community began to react since 2008. The United Nations Security Council (UN) approved Resolutions numbers 1814, 1816, 1838, 1846 and 1851 that same year, where they authorized the escort for the ships of the FAO World Food Program; requested the commitment of States in the fight against piracy and armed robbery in Somalia’s territorial waters; urged the deployment of military units and as well as the repression of piracy and armed robbery. The exhorted to international coordination, supporting actions from land, since such actions against ships continued to pose a serious threat to the country itself and others in the region, as well as to maritime navigation and security on international maritime routes.
Since then, several anti-piracy and armed robbery operations have been launched in the area (Somalia), involving a large number of countries and a large air-naval presence from multiple countries. The most important for the EU has been Operation Atalanta (EU NAVFOR), launched in December 2008 and which is still in force.
The main objectives of mission’s mandate are the following:
– To Protect vessels of the World Food Program (WFP), African Union Mission in Somalia (AMISOM) and other vulnerable shipping;
– To deter, prevent and repress piracy and armed robbery at sea;
– To monitor fishing activities off the coast of Somalia;
– To support other EU missions and international organizations working to strengthen maritime security and capacity in the region.
On July 30, 2018 the Council of the EU extended the mandate of the Operation Atalanta until December 31, 2020. It includes the area of operations covering the Southern Red Sea, the Gulf of Aden and a large part of the Indian Ocean, including the Seychelles, Mauritius and the Comoros, also includes the Somali coastal territory, as well as its territorial and internal waters. This represents an area of about 4,700,000 square nautical miles (approximately 8,700,000 square kilometers).
According to data from the EU NAVFOR itself since the beginning of this Operation to combat piracy and armed robbery, pirate attacks decreased considerably from the 176 occurred in 2011 to just 6 in 2017. The number of successful pirate attacks had also decreased considerably.
Pirates captured and hijacked 47 ships with their crews in 2010. In 2011, the number was reduced to 25; In December 2012, the hijacking of 4 ships was recorded; In 2017, 2 ships were hijacked; Since 2011, the number of crew members kidnapped has dropped from 680 to 0 by 2017.
Many countries have suffered piracy attacks, specifically in the surroundings of the African Continent, the Indian Ocean, the Gulf of Guinea and other areas close to America, according to a report by the Piracy Reporting Center [IBM PRC] & International Maritime Bureau [ICC]. In 15 of those incidents, 91 crew members were taken hostage, while in another 13 attacks, 75 sailors were kidnapped from their ships. As for the victims, 3 sailors were killed and 6 were injured as a result of the acts of violence by pirates.
According the latest piracy report of July 15, 2020 from the Piracy Reporting Center [IBM PRC] & International Maritime Bureau [ICC], violent attacks against vessels and their crews have increased from January to June 2020, with 77 seafarers taken hostage or kidnapped. Being the Gulf of Guinea off West Africa
, the area where the danger for commercial shipping has increased , accounting for just over 90% of maritime kidnappings worldwide. Meanwhile ship hijackings are at their lowest since 1993.
In summary, the IBM PRC recorded 98 incidents of piracy and armed robbery during the first half of 2020, up from 78 in the second quarter of 2019, further indicating that the increasing threat of piracy adds to hardships already faced by hundreds of thousands of seafarers working beyond their contractual periods due to pandemic restrictions that currently exist, on crew rotations and limitations to travel.
As IMB Director Michael Howlett notes “Violence against crews is a growing risk in a workforce already under immense pressure. In the Gulf of Guinea attackers armed with knives and guns now target crews on every type of vessel. Everyone’s vulnerable.”
This report also reveals that, so far this year, 49 crew members have been kidnapped for ransom in the Gulf of Guinea and held captive on land for periods of up to six weeks. The rates of this type of crime are accelerating, with 32 crew members kidnapped in the last three months alone. And they’re happening further out to sea: Two-thirds of the vessels were attacked on the high seas from around 20 to 130 nautical miles off the Gulf of Guinea coastline.
In a recent case commended by IMB, the Nigerian Navy prompted action to a distress call from a fishing vessel boarded and kidnapped by armed assailants in Ivory Coast waters, as a result the crew were saved and the vessel was prevented from being used as a possible mother vessel to carry out further attacks.
In another incident, a product tanker was attacked while sailing around 127 nautical miles off Bayelsa, Nigeria. Eight armed pirates kidnapped ten crew members and stole cash, personal valuables, and ship´s property. IMB PRC contacted regional and international authorities, and a Nigerian Navy Security Vessel was dispatched. A nearby sister vessel helped the four remaining crew members to sail the tanker vessel to a safe port. The kidnapped crew were released three weeks later.
The Singapore Strait saw 11 incidents in the first half of 2020, increasing the risk of collisions in this busy shipping channel, especially at night. Although most are opportunistic, low-level attacks that are aborted once the alarm is sounded; two reports in May 2020 indicated crew were threatened with knives by pirates, and taken hostage and injured. Furthermore, there were 10 attacks in Indonesian anchorages and waterways in the second quarter of 2020, compared up from five in the first quarter of 2020. For their part, no incidents were reported off Somalia. However, IMB PRC recommends vessels to continue implementing BMP5 recommended practices while transiting these waters. The Somali pirates still maintain the capability to carry out attacks.
IMB PRC is recording more incidents in new areas of Latin America, but it says many of those new attacks go unreported, making the problem more difficult to handle. The four attacks that were reported in Mexico all targeted offshore vessels, and all occurred within a span of 11 days in April. Likewise, incidents continue to be reported off Callao, Peru anchorage. Meanwhile, vessels off neighboring Ecuador have recorded incidents each year since 2017, with at least three container ships attacked while underway in the second quarter of 2020.
The Caribbean remains one of the areas with the highest piracy and armed robbery activity. Mostly due to the fact that it is a geographical area with many raw materials exploitation, by virtue of which, it is usual for ships with high value cargoes being targeted for this type of criminal activity. Venezuela, according to the latest news reports, occupies an important place of pirate attacks. And it is easy to understand why the Venezuelan coasts are favorable for these types of events.
It has an extensive coastal area of 2,394 kilometers, in the northernmost part of South America, a vital crossroads for international maritime traffic. It also has an EXCLUSIVE ECONOMIC ZONE (EEZ) around 580,000.00 km2, 1/5 of the total surface of the Caribbean, with a high economic potential, a large fishing reservoir, huge oil reserves and other minerals. In addition to a complex economic, political and social crisis that serve as a breeding ground for these types of criminal activities.
In the Venezuelan case, several incidents of piracy and armed robbery have been recorded in its coast waters during the first half of 2020. Most of them have not been reported to the IBM PRC. The most recent attack occurred on July 1st, 2020 in the Orinoco river, where 10 seafarers of the transfer station vessel Boca Grande II owned by the Venezuelan company Ferrominera Orinoco, were kidnapped and robbed of cash, and personal valuables. The vessel was anchored off Punta Pescador, in the narrow Boca Serpentine, between Venezuela and Trinidad and Tobago.
During the pandemic, piracy and armed robbery attacks on vessels and their crews, as well as other criminal activities in the aquatic spaces have increased.
Piracy is similar and important in most countries’ laws. Moreover, it has such relevance that in most of them it is located immediately after the crimes of lese-majesty, given that its danger lies in its destructive force.
This crime has had such transcendence that the position used by the Roman Empire to declare pirates enemies of all humanity has been taken up temporarily in European legislation, even when considering the idea that it has been declared an international crime in the Rome Statute.
A greater understanding of the concepts is essential to classify a fact as a crime and attribute the appropriate classification to it, so that hijacking is not confused with piracy, or piracy with armed robbery.
The safety of ships and their crews in the seas is a global concern that will only be achieved through international cooperation. One of the basis to protect them is based on the principle that a warships that do not sail under the same flag, could protect the same interests, that means “the vessel patrolling acts as an organ that validly represents the world community in this matter, since pirates are considered hostis humanis generis“.
The 1988 Rome Convention was the first international agreement attempting to subordinate crimes against the safety of maritime navigation of ships and their crew under the scope of International Law, seeking to cover all criminal acts that could be generated to a ship or its crew. However, many States did not ratify said convention, as was the case with Venezuela, but their domestic legislation includes many of the crimes established in these international regulations. It is so natural that Venezuela should incorporate the text of the Convention into his laws and ratify it.
In the private sector, more initiatives such as the Baltic and International Maritime Council (BIMCO) with approval of various standard contracts and clauses, such as the Bimco Piracy Clause, which allows shipowners to negotiate with companies specialized in security issues the possibility to carry a group of people on board solely responsible for the protection of the vessel, crew, and its cargo, so that the shipowner can fully comply with the obligations set forth in the respective Charter Party.
Finally, an aspect of importance that must be considered within the subject of international cooperation is that of jurisdiction: which courts will be the ones competent to judge people who commit crimes of piracy and armed robbery.