How Comparative Criminal Law Helps or Undermines the International Community’s Effort on the Global Governance of Maritime Piracy?

Piracy is one of the oldest manifestations of violence at sea and even today remains a significant threat to the safety of maritime navigation, as could be seen –for instance– from the upsurge of Somali piracy from 2007 onwards. The international approach to counter maritime piracy is based on Article 100 of UNCLOS, which establishes the duty to cooperate in the repression of maritime piracy, as well as UNCLOS policing and law enforcement rights (Articles 105 and 110 and, if applicable, Article 111). However, UNCLOS does not state the obligation to criminalize maritime piracy under national law (some scholars even doubt that the definition of acts of piracy as set in Article 101 of UNCLOS can be considered as a crime of piracy) nor the obligation to establish jurisdiction over this offence (ex post facto obligations), unlike the SUA Convention (Articles 5 and 6), which is primarily related to maritime terrorism. This is one of the number of reasons why States have implemented UNCLOS under domestic laws in very different ways, and more specifically, the main reason why the crime of piracy in national laws is so heterogeneous. This is a very significant problem in the fight against maritime piracy: the lack of a coherent punitive response tend to have a negative impact not only in the prevention but obviously also in the repression of this type of violent act at sea. That is, the lack of harmonisation of domestic criminal laws may hinder the timely and effective implementation of the duty under Article 100 of UNCLOS and may thus undermine the international community’s great effort on the global governance of maritime piracy. This framework having been established, the aim of this paper is two-fold. First, it briefly identifies regulatory patterns of the crime of piracy in Comparative Criminal Law (a de lege data approach), and, secondly, it discusses a crime of piracy regulatory proposal based on the proportionality principle (a de lege ferenda approach) with a view to serve as a “best practice model” for the criminalization of maritime piracy. The harmonisation of Comparative Criminal Law regarding maritime piracy would provide a significant step forward in the shaping of global governance strategies against violent acts at sea in particular, and in the strengthening of ocean governance, in general.