It is important to decide upon international legal elements of piracy and how to classify this crime in the national law to properly treat international offences committed in the Black Sea, such as seizing Ukrainian rigs amidst the Russian-Ukrainian conflict. Article 101 of The United Nations Convention on the Law of the Sea of 1982 defines piracy (French piraterie) as any illegal acts of violence or detention, or any act of depredation, committed for private ends (French à des fins privées) by the crew or the passengers of a private ship or a private aircraft (French d’un navire ou d’un aéronef privé), and directed: on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; or against a ship, aircraft, persons or property in a place outside the jurisdiction of any State. The 1982 Convention also defines piracy as 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 (i.e. a pirate tool); or any act of inciting or of intentionally facilitating piracy or an act of voluntary participation in the operation of a ship making it a pirate ship.
It follows from the above that in international law it is impossible to classify any public acts, i.e. acts of a crew of a warship or any other ship performing public functions (e.g. maritime or customs security) as piracy. According to Article 102 of the 1982 Convention, the acts, committed by a warship, government ship or government aircraft are assimilated to acts of piracy, only if crew thereof has mutinied and taken control of the ship or aircraft, and if acts of crew are not intended by civil or military authority, regardless of the level or nature of the authority (central, local, civil, military, occupation, international etc.)
Articles 103 and 105 of the 1982 Convention imply semantic differentiation between a pirate ship or aircraft (i.e. used to commit an act of piracy) and a ship or aircraft seized by an act of piracy or controlled by pirates. Seized rigs under any circumstances cannot be classified as pirate ships (since they are not used for piracy, i.e. to seize another ship or aircraft). ‘Act of voluntary participation’ (as mentioned in Article 101) in seizing rigs of Chornomornaftogaz also cannot be classified as piracy. As it follows from the 1982 Convention, fixed platforms are not covered by definition of a ship, used in this treaty, i.e. they cannot be subjected to piracy within the meaning of the Convention. Thus, there are no practical prospects to classify the seizure of rigs as an act of piracy in the international law pursuant to the 1982 Convention.
The 1982 Convention is considered the key instrument when it comes to classifying piracy by current UN acts on counteracting piracy in the Gulf of Guinea and in the waters off the coast of Somalia, namely UN Security Council resolutions 1897 (2009) of 30 November 2009, 1950 (2010) of 23 November 2010, 2077 (2012) of 21 November 2012, 2184 (2014) of 12 November 2014, 2246 (2015) of 10 November 2015 and 2316 (2016) of 09 November 2016; Secretary-General’s Report S/2016/843 on the situation with respect to piracy and armed robbery at sea off the coast of Somalia of 07 October 2016, Security Council Presidential Statement S/PRST/2016/4 of 25 April 2016 etc.
All these acts recognise that the 1982 Convention has a key role in establishing universal legal framework to counteract piracy, and evolve Convention’s norms with regard to private nature of piracy. These documents define perpetrators as ‘pirate gangs’, ‘transnational criminal enterprises’ and ‘criminal networks involved in piracy’, and state the connection between pirates and terrorist groups. All mentioned acts emphasise that not only piracy, but also armed robbery at sea (French vols à main armée en mer) threat international security.
Armed robbery at sea is treated separately. The fact that UN Security Council Resolution 2316 (2016) of 09 November 2016 mentions both the 1982 Convention (that envisaged no other robbery at sea except for piracy) and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation is important to define the scope of robbery at sea. UN Security Council Resolution 2316 (2016) mentions both Conventions in relation to authority of states to create criminal offences (piracy and armed robbery at sea) and to establish their own jurisdiction with regard to two Conventions. This allows referring the category of ‘armed robbery at sea’, which is not piracy, to offences envisaged by the 1988 Convention. Although this Convention does not cover unlawful seizure of rigs, the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf was adopted at the same time as the Convention in 1988.
According to Article 1 of the Protocol, relevant provisions of the 1988 Convention shall also apply mutatis mutandis to the offences, where such offences are committed on board or against fixed platforms located on the continental shelf. The 1988 Protocol defines ‘fixed platform’ as an artificial island, installation or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for other economic purposes. According to Article 2 of the Protocol, any person commits an offence if that person unlawfully and intentionally: seizes or exercises control over a fixed platform by force or threat thereof or any other form of intimidation; or performs an act of violence against a person on board a fixed platform if that act is likely to endanger its safety; or destroys a fixed platform or causes damage to it which is likely to endanger its safety; or places or causes to be placed on a fixed platform, by any means whatsoever, a device or substance which is likely to destroy that fixed platform or likely to endanger its safety etc.
Both the Convention and the Protocol of 1988 were ratified by Resolution of the Verkhovna Rada of Ukraine No. 3735-XII on 17 December 1993. The official Ukrainian translation of the Protocol was published in 2007 in Official Journal of Ukraine No. 12, Article 465. The Russian Federation ratified the Convention and the Protocol of 1988 by Federal Law No. 22-ФЗ on 06 March 2001. Thus, Ukraine has authority guaranteed by international law to criminalise acts, envisaged by the 1988 Protocol, Article 2 in its national law and to define the criminalisation format.
It shall be noted that in 2005 the Protocol to the 1988 Convention and the Protocol to the 1988 Protocol were signed to insert Article 2 bis into the Convention and to extend its scope to the 1988 Protocol. According to this Article, the Convention and the Protocol do not govern the activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law. The Protocols of 2005 came into force in 2010 and were ratified by around 40 countries (including the United States and several EU countries). Neither the Russian Federation, nor Ukraine are parties to these Protocols.
Thus, there are practical prospects to classify the seizure of the Chornomornaftogaz rigs as a criminal act in the international law pursuant to the 1988 Protocol, but the Protocols of 2005 make such classification a bit less significant for the international community.
Article 446 of the Criminal Code of Ukraine defines ‘piracy’ as operation of an armed or unarmed ship to seize another sea or river ship, or to perform an act of violence, or robbery, or other hostile actions against crew or passengers of such ship aiming at financial or another personal gain. There is a substantial difference between this definition and the one provided in the 1982 Convention: a) the national legislator has a wider understanding of piracy modus operandi (since any armed or unarmed ship can be state-owned or naval as envisaged by Article 13, Part 2 of the Merchant Shipping Code of Ukraine); b) it is possible to have broad interpretation of an attack location (there is no sign of an attack in the open sea or out of state jurisdiction) and a target (definition of a sea ship in Article 15 of the Merchant Shipping Code of Ukraine allows including non-self-propelled drilling rigs).
Such broad interpretation of piracy in Article 446 of the Criminal Code of Ukraine can be explained by the necessity to meet requirements of the Conventions of 1982 and 1988, as well as the 1988 Protocol. This explanation is highly probable, because acts that Ukraine recognised as criminal by ratifying the 1988 Protocol are not represented in other norms of the Criminal Code of Ukraine. It should be also added that Article 227 on Piracy of the Criminal Code of the Russian Federation has even broader qualification of an act of piracy as compared to the 1982 Convention and Article 446 of the Criminal Code of the Russian Federation. In the Russian jurisdiction, piracy is any attack on a sea or river ship, committed through violence, actual or threatened. Such classification makes it impossible for the Russian Federation to claim that investigation of crimes envisaged by Article 446 of Russia’s Criminal Code contradicts the 1982 Convention.
Thus, national criminal classification of seizing Chornomornaftogaz rigs as piracy pursuant to Article 446 of the Criminal Code of Ukraine (in the framework of a criminal act according to the 1988 Protocol) has practical prospects, though the Protocols of 2005 make such classification a bit less significant for the international community. Such classification limits application of forcible measures and international law, envisaged by the 1982 Convention.