The Overlooked Type of Piracy: An Assessment of UNCLOS Article 101(a)(ii) and its Contemporary Applicability

A popular misconception holds that piracy is a crime confined to the high seas. However, Article 101(a)(ii) of the United Nations Convention on the Law of the Sea (UNCLOS) also regulates an act that fulfills the common requirements of piracy and is committed in “a place outside the jurisdiction of any state” as an act of piracy. Furthermore, for this type of piracy, the well-known two-ship requirement does not apply. These two differences from common piracy have paved the way for the development of views supporting the applicability of this distinct and hitherto largely neglected form of piracy to actions damaging submarine cables and pipelines in areas beyond territorial sovereignty. In this article, it is put forward that in order to apply Article 101(a)(ii) of UNCLOS in line with its teleological and historical interpretation, the act should be carried out in a place that could be defined as terra nullius. In this regard, since piracy on the high seas already has an established legal framework in Article 101(a)(i), it cannot be considered as “a place outside the jurisdiction of any state”, meaning that Article 101(a)(ii) cannot be applied to such unlawful acts on the high seas.