1. The relevance of the international legal regulation of piracy International piracy remains one of the most pressing problems of modern international shipping. As M.N. Mazurenko rightly points out, throughout its historical path of development piracy has threatened the vital interests of states which now represent a real danger to navigation, as well as the right of every person to life, liberty and security of person¹.

Despite the fact that the majority of international shipping lanes are now secure, the risk of piracy remains high on the coasts of certain states. However, in most regions where modern maritime pirates

Kseniia Spekhova, operate (Gulf of Aden, West Africa², South-East Asia), the problem remains the insufficient subjectivity of coastal states. Obviously, international maritime piracy is impossible without land bases located on the territory of states that, for one reason or another, are unable to combat piracy or are not interested in it. At the same time, the land bases for piracy named above are protected by the sovereignty of the state where the bases are located, despite the fact that such a state often exists in name only, without actually controlling its territory (e.g., Somalia, which is a classic example of a failed state³).

It is the inability and unwillingness of some coastal states to destroy the piracy infrastructure that has led to the fact that states with an interest in ensuring proper international navigation are forced to fight piracy themselves, primarily through international legal methods.

2. The main international legal acts in the field of combating piracy. Problems in the definition of piracy in international and national law

Modern international legal regulation in the field of combating piracy exists primarily at the universal level. This is due to the fact that a vessel flying the flag of any state, including a landlocked state, may face the problem of piracy. That is why international legal measures to counter piracy are most effective.

As N.A. Knyazeva rightly points out, in modern times the first international legal measures to combat piracy emerged with the adoption of the UN Convention on the Law of the Sea⁴. This convention, in Article 100, obliged all states to cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state.

In addition, a legal definition of piracy has been set out in the aforementioned Convention. According to Article 101 of the UN Convention on the Law of the Sea, piracy consists of any of the following acts :

а) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private 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; b) 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; с) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)⁵.

It should be noted that the designation of piracy named above differs from the one contained in Article 227 of the Criminal Code of the Russian Federation (hereafter – CrimC RF). Under Article 227 of the CrimC RF, piracy is defined as an attack on a maritime or river vessel with the intention of seizing property of another, committed with force or threat of violence⁶.

On the basis of the above, it can be concluded that the definition of piracy in Russian criminal law is narrower in comparison with the definition suggested by the Convention on the Law of the Sea. Modern piracy is not always connected directly with an attack on a maritime vessel. Pirates can lawfully enter a vessel and then seize that vessel, which cannot be considered an attack. Moreover, under the UN Convention on the Law of the Sea, not only a vessel but also an aircraft can be the object of such an attack.

As A.V. Maltseva points out, there is no uniform understanding of the concept of aircraft in international law⁷. However, the concept of “flight vehicle” is broader than the concept of “aircraft” enshrined in the Chicago Convention⁸. It should include any flying mechanism, whether piloted or unmanned, regardless of its size, functional purpose, presence or absence of engines, etc.

It should be noted that under Russian criminal law, there is also Article 211 of the CrimC RF, which provides for liability for hijacking or seizure for the purpose of hijacking air or water transport. However, the purpose of piracy may be not only hijacking, but also other actions, e.g. robbery, hostage taking for ransom. Thus, it can be stated that the definition of piracy given in Article 101 of the UN Convention on the Law of the Sea is more comprehensive than the definition of piracy in the Russian criminal law, which requires changes in the content of Article 227 of the CrimC RF.

L. Otto also draws attention to the problem of so-called “political piracy”, i.e. the situation where quasi-state entities carry out the seizure of a vessel not so much for private purposes but for public purposes of the coastal state⁹. In my view, such actions, whether or not facilitated by certain public officials, should also be regarded as piracy and the liable persons should be sanctioned accordingly.

On the basis of the above, the following sentence should be added to Article 102 of the UN Convention on the Law of the Sea: “Also, any conduct that contains the characteristics of acts referred to in Article 101 of this Convention, regardless of the assistance of public officials or competent authorities of the coastal State, shall be considered as piracy”.

3. Problems of international legal cooperation in the field of combating piracy. Relevance and prospects for the establishment of an international tribunal on piracy

A serious problem with the current international legal regulation is the fact that warships of third countries do not, as a general rule, have the authority to fight piracy. Under the right of innocent passage under the UN Convention on the Law of the Sea, foreign warships and vessels can use their weapons only in self-defence, which is used by pirate vessels.

These rules follow from the sovereign right of each state to the territorial integrity and inviolability of its borders. Therefore, the UN Security Council is the only body that can authorise direct military intervention by third countries. In this context, the adoption of UN Security Council Resolution 1816(2008)5¹⁰. It lifts, for the first time, the restrictions on the scope of maritime piracy and allows states cooperating with the Transitional Federal Government of Somalia in the fight against maritime piracy and armed robbery at sea to enter the territorial sea of Somalia for the purpose of suppressing acts of piracy and armed robbery at sea in the same manner as is permitted on the high seas¹¹. This decision was also confirmed by UN Security Council Resolution No. 2125 dated November 18, 2013¹². However, this situation is exceptional and is primarily due to the fact that the Federal Government of Somalia has discovered its complete inability to take any action in the field of counter-piracy. At the same time, other areas of piracy-spreading, such as West Africa and the Indian Ocean, remain under serious threat¹³.

In other cases, the clear priority in the fight against piracy is the organisation of international cooperation between three key states: the state whose coastal waters are affected by the incident, the flag state of the hijacked vessel, and the state whose nationals are affected by the incident. The legal framework for the aforementioned cooperation was provided by the adoption of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. Article 6 of this Convention extends State jurisdiction over piracy offences in the following circumstances:

а) against or on board a ship flying the flag of the State at the time the offence is committed; or b) in the territory of that State, including its territorial sea; or с) by a national of that State¹⁴.

Furthermore, in accordance with article 10 of the aforementioned Convention, the State Party in the territory of which the offender or the alleged offender is found shall, in cases to which article 6 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State.

At the same time, an analysis of judicial practice in the Russian Federation indicates isolated cases of criminal prosecution under Article 227 of the CrimC RF (piracy). In the Russian Federation, acts of piracy are prosecuted primarily against its own nationals engaged in piracy (robbery of vessels) in the nearby seas. Thus, for example, in accordance with the Ruling of the Judicial Chamber for Criminal Cases of the Supreme Court of Russian Federation dated June 22, 2011, No. 1-О11-20, it was found that the alleged crime was committed in the Baltic Sea, outside the territorial waters of any state. Therefore, given that the offence was committed by citizens of the Russian Federation, it is within the jurisdiction of the Russian Federation¹⁵.

While the almost complete absence of judicial practice concerning criminal prosecution for piracy in the Russian Federation is related not to the absence of such crimes against Russian citizens or interests of the Russian Federation, but to the actual impossibility of prosecuting the individuals named above.

On the other hand, it should be noted that the Russian Federation does not always extradite foreign citizens to be prosecuted for committing a pirate attack. In accordance with the Ruling of the Judicial Chamber for Criminal Cases of the Supreme Court of Russian Federation dated July 01, 2014, № 1-АПУ14-14 Estonian citizen M., who had committed a robbery attack on a Russian vessel in neutral waters, was awaiting extradition to the competent authorities of Estonia for committing an act of piracy. However, the Supreme Court of the Russian Federation refused to extradite him because Estonian law provided for a more lenient liability for piracy than the Russian law. Part 1 of Article 110 of the Estonian Penal Code does not contain the qualifying characteristics of Article 227 of the CrimC RF: committing piracy by an organised group with the use of weapons and objects used as weapons, for which Estonian citizen M. was convicted.

Thus, as the court rightly pointed out, the Estonian Penal Code is not comparable to the CrimC RF due to its excessive leniency, which means that the principle of fairness would not be respected when M. was transferred to the Republic of Estonia to serve his sentence¹⁶.

Consequently, the differences in the criminal law regulation of piracy have meant that the level of international cooperation, even among neighbouring states, on this issue leaves much to be desired. On the basis of the above, it seems advisable to consider the establishment of an international tribunal on piracy.

As I.V. Maimistova notes, the creation of a special international judicial body for the prosecution of individuals accused of piracy has a number of advantages. First, unified standards of investigation and universal judicial practice would be developed, which could ensure the inevitability of criminal pro secution of pirates. Secondly, an international judicial body could comprehensively take into account the potential for prosecution under national law, as well as the practice developed by that body. Thirdly, an international judicial body would be able to bring to justice not only ordinary performars, but also the organisers of pirate associations, as well as those persons who control the financial flows¹⁷.

In the opinion of N.A. Knyazeva, one of the options for creating an international anti-piracy tribunal is to create a special UN tribunal, similar to those that acted concerning crimes in Rwanda and the former Yugoslavia¹⁸. It should be noted that, on the one hand, the creation of a tribunal ad hoc seems a quick solution, but on the other hand, halfnessof such a solution cannot be denied. It is clear that the tribunal’s jurisdiction may extend to acts of piracy only in certain jurisdictions explicitly referred to in the international legal act creating the tribunal, which may in the long term extend piracy beyond those jurisdictions. We would therefore face the prospect of creating more and more international tribunals, with different rules and a distinct geopolitical character. On the basis of the above, the creation of a territorial international tribunal, analogous to the tribunals operating for Yugoslavia and Rwanda, does not appear to be advisable.

Another option would be to extend the jurisdiction of the UN International Criminal Court to cover piracy. However, it should be noted that not all states (including the Russian Federation) have ratified the Rome Statute establishing the UN International Criminal Court¹⁹. This will reduce the effectiveness of the court and prevent universal acceptance of its decisions and broad international cooperation with the court.

It is also counterproductive, in my view, to attempt to establish regional piracy tribunals, since the regional organisations, under which such tribunals might be established, do not have sufficient authority to solve the problem of piracy.

On the basis of the above, we can agree with the opinion of G.A. Korolev that anti-piracy rules have now become universal rules of international law (Jus cogens)²⁰. The universal nature of the rules requires the creation of a universal, permanent judicial body in the field of combating piracy, which would coordinate international cooperation in combating piracy and implement the principle of the inevitability of punishment for acts of piracy.

The above tribunal should, in my view, be based on the following basic principles:

− universal jurisdiction. All Tribunal member states accept the Tribunal's universal jurisdiction over all acts of piracy. This does not limit the jurisdiction of national courts in the above matter;

− the proactive nature of the proceedings. The Tribunal must be subsidiary in nature and accept applications from member states regarding a request to bring a person to justice. Each State is obliged to cooperate with the Tribunal on matters within its competence;

− international character. Judges should determine the procedure for prosecution, the detention of persons accused of piracy and the level of punishment on the basis of international law, without being bound by any national legal order. The manner of selection of judges should meet the requirements of proportionality and equality of all parties to the Convention, under which the tribunal will be established;

− establishment of a special service for the serving of sentences under the Tribunal. Citizens of member states to the Convention establishing the Tribunal may serve their sentences in their states, but the process of serving their sentences must be under the controlof the Tribunal;

− inadmissibility of re-prosecution of persons who have already served their sentences by the decision of the Tribunal. ■