Hostis Humani Generi : towards an effective legal framework to combat maritime piracy : a South African perspective

Simelane, Thobisa (2020-03)

Thesis (LLD)--Stellenbosch University, 2020.


ENGLISH ABSTRACT: In recent history the international community has witnessed the re-emergence of maritime piracy at an alarming rate such that it has featured in the agendas of multilateral institutions and regional bodies as a security matter in need of urgent attention. Piracy is an international crime under customary international law and its status as such has been crystallised in the United Nations Convention on the Law of the Sea (―UNCLOS‖). The definition of piracy under the Convention is criticised for being vague and thus making it impossible to establish with a degree of certainty what the meaning, scope, and content of piracy is. South Africa incorporated the definition of piracy in the Defence Act 42 of 2002, and by doing so also imported the issues that arise in the interpretation and enforcement of the UNCLOS provisions. This dissertation constitutes an analysis of piracy from both legal and security points of view, thus it focuses on piratical activity and the essential elements thereof – and it also looks at the evolution of law and state policy on piracy which eventually led to the adoption of the UNCLOS. Chapter I introduces the topic of piracy as an international crime and it introduces the research question and also give adequate information about the concepts and principles that will inform the schematic theme of the entire research work. This chapter further highlights the importance of the research project, states the objective of the research project and gives an overall course and stages that the dissertation will take. Chapter II focuses on the history of the crime of piracy and how it has evolved from manner of execution to the way in which sovereign states have dealt with the crime historically. The objective of the chapter is to establish a lucid understanding of the historical foundations of piracy, more than that the chapter will discuss concepts such as privateering, letters of marque, piracy on the high seas, and the development of international law to address piracy. Chapter III focuses on the definition of Piracy as provided for by international customary law and codified in the UNCLOS. The primary objective is to determine which internationally proscribed activity falls within the purview of the definition of Piracy, thereby precluding international crimes such as robbery on high seas, maritime terror and so on. This chapter also analysis some of the practical problems in investigating piracy on the high seas and their constitutional implications. Further, there is also an analysis of regional legal and security responses to piracy. Chapter IV constitutes a prognosis on the prosecution of piracy in a South African courts, this is done by analysing the South African approach to international criminal law and justice, recent developments such as the effort to withdraw from the ICC, and the manner in which the courts have interpreted international instruments and legislation providing for international crimes. The analysis is done against the backdrop of the constitutional supremacy in South Africa, and whether the piracy provisions in the Defence Act are aligned with the prevailing South African international criminal law framework Chapter V focuses on developments in regional and international legal and institutional frameworks. The analysis here is largely on the richness of the international criminal law framework and whether it may offer some solutions to the piracy quagmire. Policy from international bodies like the United Nations Security Council and judgments of international tribunals are discussed, particularly how developments at the international level impact on piracy. Chapter VI concludes and makes recommendations for changes from an international and South African perspective. It is argued that the elements of the crime of piracy must not deviate from the essence of the crime the meaning of which is universal. It is further argued that some of the elements in the UNCLOS are outdated and find no relevance to contemporary piracy or modern international criminal law principles, and therefore must be abandoned in favour of a realistic practical elements which address the security threat posed by piracy.


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