In the early hours of 4 July 2019, a commercial oil tanker (Grace 1), flying the flag of Panama, was boarded and seized while passing through the Strait of Gibraltar by UK marines and the Gibraltar police. Connecting the Mediterranean Sea to the North Atlantic Ocean, the Strait of Gibraltar is one of the busiest shipping routes in the world.
The reason lying behind the seizure of the oil tanker by the UK was that the Grace 1 was suspected of transporting crude oil, which was loaded onto the vessel in an Iranian port, to Syria, in violation of EU sanctions. What might have drawn attention to the vessel, was its circuitous route. Starting at an Iranian port, the vessel first set sail south, to then follow the coastline around the entire African continent up until entering the Strait of Gibraltar, where it was intercepted. Its ultimate destination remains a subject of dispute, however.
The arrest of the vessel led to an outcry in Iran, protesting the lawfulness of the UK’s seizure on several bases. One contention that was raised by Iran, and which will be at the heart of this short blog post, is its condemnation that the UK’s seizure was an act of piracy.
But is there any validity to Iran’s piracy claim from the view of international law? Or, rather, must it be brushed off as rhetoric? The rhetorical force that the label of piracy carries is invariably strong, readily conjuring up vivid images of individuals pillaging and threatening security at sea.
Before delving into the question whether, away from its rhetorical force, Iran’s claim has legal merit, there is a preliminary issue that needs to be addressed: how was it that Iran took centre stage in condemning the UK’s action against the oil tanker? Surely, not in the role of flag State. Ownership, or whatever links a cargo may have to a particular State, is irrelevant from a legal point of view in determining the nationality of a vessel. Interestingly enough, Panama indicated that it had removed the Grace 1 from its registry at the end of May 2019, because of its link to terrorism financing. This does raise the issue – that will not be addressed here – whom the flag State of the Grace 1 is. Iran’s involvement seems to stem rather from that it perceives the seizure by the UK of the oil tanker, carrying Iranian oil, as a provocation, one that has to be read against the background of flaring tensions between the US and Iran that arose over the shooting down of a US drone, and the latter’s pulling out from the earlier agreed nuclear agreement.
Criteria that need to be satisfied for an act to be piracy are given in Article 101 of the 1982 Law of the Sea Convention (LOSC). This provision, reflecting customary international law, establishes what the crime of piracy consists of:
‘any illegal acts of violence or detention, committed for private ends by the crew or the passengers of a private ship or aircraft and directed … on the high seas (or in a place beyond the jurisdiction of any State) against another ship or aircraft, or against persons or property on board such ship or aircraft.’
From this provision, several requirements can be distilled. One being that a violent act must have been committed on the ‘high seas’ or ‘in a place beyond the jurisdiction of any State’. Were a violent act to be committed within the territorial sea, it cannot be included in the definition of piracy under Article 101 LOSC. Such an act would be considered armed robbery at sea.
But does the Strait of Gibraltar meet the description of ‘high seas’ or ‘a place beyond the jurisdiction of any State’? To start with some background, the entire Strait of Gibraltar is composed of waters that are either part of coastal States’ their territorial seas or exclusive economic zones, thus being under their sovereignty or jurisdiction of the relevant coastal States respectively. Further complicating matters is that some of these waters are disputed, because of the ongoing sovereignty dispute between the UK and Spain over Gibraltar. However, even if disputed waters are underpinned by a sovereignty dispute, they cannot be considered high seas.
Nowadays, most scholars adhere to the view that the Gibraltar Strait can be considered a strait that falls within the scope of Part III LOSC. The implication of which would be there being a right of transit passage for vessels. However, Article 34 LOSC makes it clear that the coastal State’s sovereignty and jurisdiction within a strait is not affected. In this light, if a vessel passes through the territorial sea part of a strait, criminal jurisdiction pursuant to Article 27 LOSC might arguably still exist for the coastal State. So, to know the exact location of where the Grace 1 was boarded and arrested is critical in determining whether the geographical scope requirement laid down in Article 101 LOSC has been met.
As its first sentence makes clear, an illegal act “of violence or detention” has to be committed for ‘private ends’. Looking at the UK’s seizure of the oil tanker, a private end component is fundamentally lacking. By its very nature, the UK’s action was public; it occurred with the authorisation of a State. And there is a further difficulty for Iran’s piracy claim to succeed. For an act to fall within the scope of Article 101 LOSC, it must have been committed by the crew or passengers of a private ship against another ship.
And was the act at all violent? What only could be construed as a ‘violent’ act or ‘detention’ would be the boarding and arresting of the Grace 1. Rather, the UK response concerned law enforcement, which does not constitute a violent act in and of itself; that is, as long as it occurs in accordance with international law. The dividing line between what constitutes law enforcement and a threat of the use of force, may not always be easily drawn, as during lawful enforcement a measure of force may be involved, but this is permissible if it is necessary, unavoidable and proportional.
Given that the requirements for an act to be considered piracy under Article 101 LOSC are cumulative, Iran’s claim cannot be upheld, seemingly failing to meet a plethora of requirements. But at the same time, it is questionable whether Iran’s use of the word piracy, or a variation thereon, to condemn the seizure is meant to convey its legal position on the matter. It seemingly fits into a broader development, where it has become en vogue to refer to all violent acts that occur at sea as piracy, no matter whether it satisfies the legal definition thereof under international law (see more generally on this phenomenon J. Schechinger, ‘An incident of “piracy” off the coast of Suriname? The definition of piracy and the use (and misuse) of international law terminology’, MarSafeLaw Journal (forthcoming)).