Recent events in the Baltic Sea and other places have highlighted the importance of undersea cables and pipelines for the global economy, and indeed our daily life. Fibre optic cables are the arteries of the modern world, transmitting over 99% of intercontinental data. While electricity and gas pipelines have less global significance, they remain crucial to regional and local economies. This blog argues that attacks on subsea cables and pipelines could qualify as acts of piracy, allowing all states to board, search, and seize vessels engaged in or suspected of such attacks, as well as apprehend and prosecute those responsible.
Focus on Gaps in the Legal Framework
Most academic commentary on attacks on undersea cables and pipelines highlights gaps in the existing legal framework, particularly in the 1884 Convention for the Protection of Submarine Telegraph Cables and the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Scholars and previous blogs here have suggested a United Nations Security Council (UNSC) resolution, cable protection zones, or a new international treaty to address these gaps. Others propose expanding coastal States’ enforcement powers in the EEZ, granting universal jurisdiction over intentional sabotage, and pushing for diplomatic and legal action in the EU, NATO, and IMO.
Reframing Attacks on Subsea Infrastructure as Piracy
While these suggestions are eminently reasonable, they face significant challenges: treaty negotiations and other diplomatic efforts are time-consuming and politically sensitive, UNSC resolutions risk vetoes, and the legality of cable protection zones may be questioned. Furthermore, protection zones often rely on civil penalties, offering limited deterrence.
A faster and simpler approach would be to classify attacks on undersea cables or pipelines as piracy. This is not as radical as it may seem.
Piracy, as is well known, is defined in Article 101 of UNCLOS as:
(a) Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or passengers of a private ship or 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 the jurisdiction of any State.
This definition is complex and has generated extensive legal debate. Most scholars agree that piracy has four key elements:
1. An illegal act of violence;
2. Committed for private ends;
3. Against another ship (the so-called ‘two-ship requirement’);
4. On the high seas or in a place outside the jurisdiction of any State.
In the Arctic Sunrise arbitration, it was stated that an ‘essential requirement of Article 101 is that the act of piracy be directed against another ship’ (para 238). However, this traditional interpretation appears to conflate the requirements of subparagraph (i) and (ii) and fails to account for the significance of the disjunctive ‘or’ in the text.
Article 101(a)(i) explicitly requires an act to be committed ‘against another ship or aircraft’, implying a two-ship requirement. By contrast, Article 101(a)(ii) omits this condition and instead refers to acts committed ‘against a ship, aircraft, persons, or property in a place outside the jurisdiction of any State.’ (Emphasis added). Thus, based on its ordinary meaning, piracy could be interpreted as:
Any illegal acts of violence… or any act of depredation, committed for private ends by the crew… of a private ship… and directed against… property in a place outside the jurisdiction of any State.
This interpretation is not new. The correct reading of UNCLOS and its 1958 predecessor has been debated for decades (ILA, para 49).
Historical Development of Article 101
The codification of Article 101 dates back to 1924, when the League of Nations tasked a Committee of Experts with identifying legal issues for international regulation, including piracy. This led Harvard Law School to conduct research, culminating in the 1932 Harvard Draft Convention on Piracy.
In 1954, the International Law Commission (ILC) drafted the Regime of the High Seas, forming the basis for the 1958 Convention on the High Seas, which contained six articles on piracy that largely replicate the Harvard Draft. However, Article 101(a)(ii) was added by the ILC. These provisions were later incorporated into UNCLOS with only minor modifications.
In fact, there was limited interest in piracy during the negotiations of both the 1958 Convention and UNCLOS, and much of the confusion regarding the two-ship requirement seems to stem from discussions in the ILC.
The Debate on the Two-Ship Requirement
The debate over the two-ship requirement primarily focused on distinguishing ‘piracy’ from ‘mutiny’ and not on attacks against infrastructure. The ILC included Article 101(a)(ii) to encompass acts against persons or property ‘on an island constituting terra nullius or on the shores of an unoccupied territory.’ (ILC Commentary, Article 39) The discussion was mainly policy-driven, with no reference to case law or accepted legal rules.
Some scholars, including Gilfoyle, Paige, and McLaughlin, have already supported a broad interpretation of Article 101(a)(ii), finding that:
Depredations against submarine cables in the high seas by non-state actors may constitute piracy…
This interpretation is supported both by the ordinary meaning of Article 101(a)(ii) and its drafting history, though it does not seem to be reflected in state practice.
The best-known counterexample is the 1985 hijacking of the Italian cruise ship Achille Lauro. This incident has traditionally not been considered piracy for two reasons: first, because the hijackers were onboard Achille Lauro, meaning the two-ship requirement was not met; and second, their actions were politically motivated rather than driven by private ends.
To fall within the scope of Article 101(a)(ii) any attack would still have to fulfil the other traditional elements, viz., an ‘illegal act of violence’, presumably referring to the law of the state exercising jurisdiction; committed for ‘private ends’, which rules out acts attributable to a State; and, it would have to be ‘outside the jurisdiction of any State’. The latter seems to exclude acts committed in the exclusive economic zone (EEZ). But Article 58(2) of UNCLOS suggests the contrary by stipulating that ‘Articles 88 to 115… apply to the exclusive economic zone…’ This includes Article 101 and piracy must therefore only take place outside any State’s territorial sea.
Advantages of a Broad Interpretation
There are differing views on whether Article 101 of UNCLOS creates an international crime or merely provides a basis for exercising legislative and adjudicative jurisdiction. It is submitted that the latter is the case. This means that piracy suspects must be tried in domestic courts under domestic law. Nevertheless, classifying attacks on undersea cables or pipelines as an act of piracy offers several advantages. First, subject to the provision of domestic law, it would allow all States to arrest and prosecute suspected pirates (UNCLOS Art 105). Second, it avoids delays and political obstacles associated with treaty negotiations or potential UNSC vetoes. Third, it avoids the militarisation of cable and pipeline security. In fact, the ‘private ends’ requirement rules out any State or State official act, and saboteurs mandated by a State would therefore not be covered. The same is true of acts committed by a government vessel or warship, unless its crew mutinies (UNCLOS, Art 102). Admittedly, this limitation reduces the scope of piracy, but it also reduces the risk of unintended escalation. Even so, boarding a foreign-flagged vessel – even if a State denies involvement in an attack – is not without risk. A state that denies involvement in an attack could not, however, legally object to the boarding, searching, and seizure of a vessel engaged in or suspected of engaging in piracy. Nor could it object to the prosecution of persons suspected to be engaged in such acts, as confirmed by UNSC resolution 1816 (2018).
