Prosecuting International Crimes in Africa - PULP - University of ...

236 Chapter 11
piracy’. 14 In addition, piracy would crystallize where any person who,
being the master, an officer or a member of the crew of any ship and a
citizen of Kenya – (a) unlawfully runs away with the ship; or (b) unlawfully
yields it voluntarily to any other person; or (c) hinders the master, an
officer or any member of the crew in defending the ship or its complement,
passengers or cargo; or (d) incites a mutiny or disobedience with a view to
depriving the master of his command. 15 As shown below, this definition
fell below UNICLOS’ standards, was largely problematic and inadequate
in addressing modern-day piracy. This is not however, to suggest that the
international threshold is ideal: At least four limitations are evident even
in UNCLOS’ definition. Firstly, the offence of piracy can only be
perpetrated on the high seas or outside the jurisdiction of any state. Illegal
acts of piracy committed inside the territorial waters of a country are not
envisioned. In this respect, UNCLOS has been criticized for failing to
contemplate the emergence of failed states such as Somalia and failing to
address the situation when an act of piracy occurs within a country's
territorial waters, or in waters of a neighboring country, rather than on the
high seas. 16 At best, illegal acts in territorial waters are considered ‘sea
robbery’ and are dealt with by municipal law. 17 Under Kenya’s Merchants
Shipping Act, for example, ‘armed robbery against ships’
[m]eans any unlawful act of violence or detention or any act of depredation,
or threat thereof, other than an act of piracy directed against persons or
property on board such as ship within territorial waters or waters under
Kenya’s jurisdiction.
Although UNCLOS excludes the Exclusive Economic Zone (EEZ) from
being counted as part of the high seas for other purposes, 18 article 58(2)
qualifies this exemption by providing that articles 88 to 115 and other
pertinent rules of international law apply to the EEZ as long as these are
not incompatible with its very essence. This makes it plain that the
provisions of the high seas regime (including all provisions on piracy) are
applicable to EEZ in so far as they are not incompatible with UNCLOS
provisions on the same. 19 Judge Gaswaga of Seychelles is in agreement
that
the Exclusive Economic Zone (EEZ) – stretching for up to 200 nautical miles
past the territorial seas – is essentially concerned with resources. The law of
the coastal state does not apply in the EEZ, and it does not have general
enforcement rights. Other than as regards resources, EEZ’s are counted as the
high seas. 20
14
15
16
17
18
19
Sec 69.
Sec 69(2).
Silva (n 6 above) 575.
Silva (n 6 above) 570.
Art 86.
‘Piracy and legacy: Reconciling public and private interests’, International law
20
Discussion Group and Africa Programme.
The Republic v Mohamed Ahmed Dahir & 10 Others, Supreme Court of Seychelles, P 57.