The 77th Session of the ILC through the Eyes of Research Assistants to a Commission Member. Part 5. Prevention and Repression of Piracy and Armed Robbery at Sea

The International Law Commission (ILC) addresses some of the most topical issues in international law. Its work is closely followed by many international lawyers. The ILC’s current and long-term programmes of work include issues that are also within the research agenda of the International and Comparative Law Research Center. At various times, the ICLRC has worked on some specific issues that are currently under consideration by the Commission, analyzing relevant State practice, and, at the request of Commission special rapporteurs on particular topics, compiling Russian-language materials on State practice and doctrine.

Since 2024, ICLRC researchers have also participated in ILC sessions as research assistants to the ILC member Mr. Evgeny Zagaynov (Russian Federation). In 2025, Aleksei Petrenko, ICLRC Senior Researcher in Public International Law, attended the meetings in Geneva in that capacity. Aleksei prepared an overview (in Russian) describing the Commission’s functions and role, the status of its work on various topics, and his personal impressions of the ILC’s 76th session.

From April 27 to June 5 and from June 29 to July 30, 2026, the Commission held its 77th session at the United Nations Office at Geneva. Egor Fedorov, Head of Research Projects (Law of the Sea), and Anastasiia Santalova, and Andrey Buyankin, Associate Researchers in Public International Law, participated as research assistants to Mr. Evgeny Zagaynov and share their impressions of the convened work.

In a series of publications, Egor, Anastasiia, and Andrey discuss the principal issues and the course of the debates on the topics that they had an opportunity to work on.

Anastasiia Santalova

Piracy is often perceived as a phenomenon of the distant past, frequently romanticized in literature and cinema. Although modern pirates bear little resemblance to their Renaissance predecessors, the problem of piracy — and especially armed robbery at sea — remains topical. Moreover, this age-old form of crime is taking on new, often more brutal forms. Modern equipment and weaponry, as well as pirates’ higher level of organization contribute to this trend.

According to a report by the International Maritime Organization (IMO), in 2025, 171 actual or attempted incidents of piracy and armed robbery at sea were officially recorded. Compared to 2024, their number increased by approximately 17%.

Recent events further demonstrate the urgency of the problem. For example, the vessel Asana and 22 seafarers on board are currently being held in the Gulf of Aden in the Indian Ocean (off the coasts of Yemen and Somalia) as a result of acts of piracy and armed robbery at sea. Three other vessels, along with 44 seafarers on board, which were seized between April and August 2026, were released at the end of September 2026. However, five seafarers lost their lives during the rescue operation. In this regard, IMO Secretary-General Arsenio Domínguez stated the need to combat the “resurgence of piracy”. He emphasized that “seafarers should not have to lose their lives for the service they provide for the world”.

Piracy and armed robbery at sea give rise to a number of specific legal issues, including those related to the intersection of the law of the sea and international criminal law, the multiplicity of jurisdictional bases, the fragmentation of national regulations, and the rapid development of new forms of such crimes.

This topic was included in the work program of the International Law Commission in 2022. Mr. Yacouba Cissé (Côte d’Ivoire) initially served as Special Rapporteur, and in 2024 he was succeeded by Mr. Louis Savadogo (Burkina Faso). The importance of this topic is also evidenced by a recent decision of the Special Chamber of the International Tribunal for the Law of the Sea in the case of M/T “Heroic Idun” (No. 2) between the Marshall Islands and Equatorial Guinea. Among other things, the decision addressed the application of the UNCLOS provisions on the repression of piracy. The decision was rendered during the ILC’s plenary sessions on this topic — on 27 May 2026.

As a result of previous work, the Commission had already provisionally adopted the first draft articles (DAs) on the scope and the definitions of piracy and armed robbery at sea (see DAs 1–3). The Drafting Committee had also provisionally adopted a draft article on the general obligations of States (see DA 4). In 2026,¹ the first report by Special Rapporteur Louis Savadogo² was submitted to the Commission for consideration. It contained 18 fairly detailed new DAs (5–22).

During the plenary meetings at the 77th session, Commission members noted the enormous amount of work meticulously carried out by the Special Rapporteur. At the same time, the majority proposed developing more general provisions that would be convenient for States to use and would preserve a certain degree of discretion for them, while placing the details in the commentaries. The Commission also stressed the need to distinguish clearly between piracy and armed robbery at sea, as well as between different bases for exercising jurisdiction; and between the codification of international law and its progressive development.³ The Commission paid particular attention to ensuring that the provisions drafted would not conflict with the UNCLOS but would complement it, taking into account contemporary challenges. Another point concerned the incorporation of provisions from other international legal instruments. Commission members feared that, without the necessary adaptation, these provisions would fail to fully account for the specifics of the law of the sea and the crimes under consideration.

Ten DAs (5–14) were referred to the Drafting Committee at the 77th session.⁴ The Drafting Committee managed to consider three of them, dealing with autonomous vehicles, criminal responsibility, and criminal jurisdiction (DAs 5, 10–11), and provisionally adopted six new DAs based on them (3bis, 4bis, 5, 5bis, 5ter, 5quater). The results of the Drafting Committee’s work are reflected in the interim report of its Chair, Mr. Rolf Einar Fife (Norway).

Piracy vs Armed Robbery at Sea

As Mr. Louis Savadogo noted in his first report, the concepts of piracy and armed robbery at sea differ not so much in the nature of the act itself as in the legal regime applicable to it. The main difference is that the crime of piracy is committed on the high seas or in an exclusive economic zone. The crime of armed robbery at sea, by contrast, is committed within maritime areas under a State’s sovereignty.

Mr. Louis Savadogo cites statistics showing that over the past ten years, 80% of unlawful acts of violence, detention, or depredation committed against ships took place in territorial waters or internal waters. This is explained, in particular, by the intensified efforts to combat piracy on the high seas, as well as by the lack of technical capabilities in developing countries, which hinders the effective enforcement measures in their internal waters and territorial seas.

In this regard, the Special Rapporteur drew particular attention to the absence of a reference to armed robbery at sea in the UNCLOS — a concept that “was unknown at the time of the Convention’s adoption”.

States’ approaches to defining these crimes in national legislation also vary. However, as Mr. Charles Chernor Jalloh (Sierra Leone) noted, such diversity should not hinder the Commission’s work. On the contrary, it demonstrates that the draft articles on this subject will be useful in defining the legal framework necessary to prevent impunity.

Draft articles 2 and 3 provide definitions of piracy and armed robbery at sea, respectively. As members of the Commission emphasized during the plenary, it is important to draw a clear distinction between these types of crimes in the context of the work on the topic in general.

New Forms of Piracy and Armed Robbery at Sea

The Special Rapporteur placed particular emphasis on the need to take into account technological advances that have occurred since the adoption of UNCLOS. He noted that one of the key criteria for piracy and armed robbery at sea is the commission of “illegal acts of violence or detention, or any act of depredation” by one ship or aircraft against another. At the same time, the absence of definitions for the terms “ship” and “aircraft” in the Convention leaves room for differing interpretations. In this context, the original wording of DA 5 aimed to broaden the scope of the legal provisions regarding piracy and armed robbery at sea and extend it to acts committed using autonomous vehicles or related to maritime cybercrime.

Although the Special Rapporteur used the term “uncrewed aircraft or vessels” in his proposal, in the new DA 3bis, the Drafting Committee decided not to deviate from the terms already used in IMO documents (see, for example, International Code of Safety for Maritime Autonomous Surface Ships) and in the Angers Resolution of the Institute of International Law. It opted for the term “autonomous or remotely operated ships or aircraft”. The Drafting Committee explained that the term “autonomous” covers vehicles controlled by artificial intelligence, while “remotely operated” covers vehicles controlled by an operator from a distance. It was noted that such ships or aircraft may not only be used to commit acts of piracy and armed robbery at sea, but may also be subjected to such acts themselves. For this reason, it was clarified that both crimes may be committed “by or against” these vehicles.

Members of the Drafting Committee noted that acts of “maritime cybercrime” may fall outside the scope of this topic, and that the concept itself is difficult to define precisely. For example, as Mr. Dapo Akande (United Kingdom) emphasized during the plenary session, under Article 101 of the UNCLOS, for an act to be classified as an act of piracy itself (rather than facilitating it), the “two-ship requirement” — involving at least two vessels — must be met. Thus, a cybercrime involving the seizure of control over a ship, committed exclusively from a computer on shore, cannot constitute an act of piracy. The relationship between acts of maritime cybercrime and the crimes of piracy and armed robbery at sea will be addressed in the commentary.

The members of the Drafting Committee also decided not to define technical terms, leaving room to account for future technological advances.

Criminalization under National Legislation

The Drafting Committee decided this year to focus on measures to prevent and repress piracy and armed robbery at sea. Its important objective was to urge States to criminalize both piracy and armed robbery at sea under their national legislation.

The importance of such criminalization was reflected, for example, in the French case of Le Ponant. As Mr. Yacouba Cissé noted when presenting a syllabus, France had to release Somali pirates after their capture because, at that time, piracy was not criminalized under its national law, and the provisions of general criminal law proved insufficient to establish responsibility for acts of piracy. Some States still lack adequate domestic legislation.

Based on the DA 10 proposed by Mr. Louis Savadogo, which addresses specific issues of criminal responsibility, the members of the Drafting Committee developed a new DA 4bis. It generally established the obligation of States to adopt “necessary legislative and other appropriate measures” to ensure that piracy and armed robbery at sea constitute offences under criminal law. The Drafting Committee specifically emphasized that such offences include, among other things, attempts and conspiracy to commit them.

Criminal Jurisdiction

Many members of the Commission emphasized the paramount importance of the draft article on criminal jurisdiction even during the plenary. Initially, Mr. Louis Savadogo proposed a single DA 11 that combined various aspects of criminal jurisdiction. However, during the discussions, ILC members pointed out the need to divide it into several separate provisions. In particular, it was proposed to distinguish between mandatory and optional grounds for jurisdiction; jurisdiction over piracy and armed robbery at sea; and prescriptive, adjudicative, and enforcement jurisdiction. In addition, some members of the Commission expressed concern that expanding the grounds for exercising jurisdiction could lead to an escalation of jurisdictional conflicts between States.

Following the discussions, Mr. Louis Savadogo prepared a revised proposal, on the basis of which four separate DAs (5, 5bis, 5ter, 5quater) were adopted.

Draft article 5 addresses criminal jurisdiction with regard to piracy. Pirates have long been considered the enemies of mankind (hostis humani generis). The members of the Drafting Committee recognized that, under customary international law, states have universal jurisdiction over piracy. Although they decided not to use the term “universal jurisdiction” itself in the DA text, they noted that universal jurisdiction is an important aspect of this topic and will be addressed in the commentary.

The Drafting Committee emphasized that states must establish jurisdiction over the crime of piracy (para. 1), but are not obliged to exercise it.⁵ The Special Rapporteur’s proposal regarding the “prosecute or extradite” obligation was considered too far-reaching in this context — a point raised, among others, by Mr. Mathias Forteau (France) during the plenary.

Paragraphs 2 and 3 address the issues of enforcement and adjudicative jurisdiction, respectively. They are based on Article 105 of the UNCLOS and largely reflect its provisions. In particular, para. 2 establishes the right of any State to seize a pirate ship or aircraft and arrest suspected persons, while para. 3 establishes jurisdiction of the courts of the State which carried out the seizure to impose penalties and dispose of the seized property. Seeking to reflect the practice of States, the Drafting Committee also enshrined in para. 3 the possibility of transferring persons suspected of piracy to another State for investigation or judicial proceedings, provided there is a relevant agreement between the States.

Draft article 5bis addresses criminal jurisdiction with regard to armed robbery at sea. The crime of armed robbery at sea is committed within the territorial sea of a coastal State and, accordingly, falls under its jurisdiction (para. 1).

Discussions in the Drafting Committee centered on whether it was appropriate for the draft articles to call for such exercise of jurisdiction, given that some States lack the necessary capacity to do so. In this regard, para. 2 was formulated as an obligation of the coastal State “to adopt the legislative and other appropriate measures necessary to enable it to exercise its jurisdiction”.

Mr. Louis Savadogo also sought to account for situations in which a State refuses to exercise enforcement jurisdiction.  In some cases, government authorities and local entities may even condone the crimes in question (primarily armed robbery at sea) or benefit from them. In this context, the Drafting Committee noted that the jurisdictional grounds already provided for in DAs 5 and 5bis are not the only ones.

Draft article 5ter, formulated as a “without prejudice” clause, provides for the right of the following States to exercise their jurisdiction with respect to piracy and armed robbery at sea:

• the flag State of the ship or the State of registration of the aircraft used to commit the aforementioned crimes or that fell victim to them;

• the State of nationality of the alleged offender or the victims;

• any other State that has jurisdiction under international law and domestic law in matters of maritime security.

Draft article 5quater specifically provides for the obligation of States to cooperate with other States and competent international organizations to facilitate the exercise of criminal jurisdiction over piracy and armed robbery at sea. The Drafting Committee thus sought to lay the groundwork for transnational legal cooperation in criminal matters, as well as to identify initial measures to address the limited capacity of some States to exercise criminal jurisdiction in their maritime zones.

Other Issues

Among other important issues that have not yet been discussed in the Drafting Committee but received significant attention during the plenary sessions are, for example, hot pursuit and privately contracted armed security personnel.

Hot Pursuit

Draft article 7, proposed by the Special Rapporteur, sparked lively debate. It permitted that hot pursuit, initiated on the high seas, may continue into the territorial sea of a third State, subject to that State’s consent.

Many members of the Commission, including Mr. Xinmin Ma (China), Ms. Vilawan Mangklatanakul (Thailand), Mr. Hong Thao Nguyen (Viet Nam), noted that the proposed wording contradicts Article 111 of the UNCLOS, according to which:

• first, hot pursuit begins in the internal waters, archipelagic waters, territorial sea, or contiguous zone of the pursuing State;

• second, the right of hot pursuit ceases when the pursued ship enters the territorial sea of its own State or of a third State.

Although the proposed provision seems important in cases where a coastal State is unable to conduct such pursuit on its own (and sometimes has no interest in doing so), concerns arise regarding a possible violation of the coastal State’s sovereignty.

Mr. Keun-Gwan Lee (Republic of Korea), Mr. Bimal N. Patel (India), and Ms. Alina Orosan (Romania) noted, among other things, that a similar authorization in the UN Security Council resolution regarding the situation in Somalia was of a very limited and exceptional nature: it was applied temporarily, with the consent of the Transitional Federal Government of Somalia, and only in Somali waters. The resolution specifically emphasized that “it shall not be considered as establishing customary international law”.

The Special Rapporteur explained that the purpose of this provision is to reconcile the need to respect the sovereignty of the coastal State with the need for effective enforcement and prevention of situations in which pirates can evade pursuit by taking refuge in the territorial waters of a third State.

As Mr. Louis Savadogo noted, the results of the plenary discussions indicate that hot pursuit in the territorial sea may be permitted provided that respect for sovereignty is guaranteed. In particular, pursuit is possible only with the consent of the coastal State; furthermore, such consent cannot be implied — it must be express. It is also important to determine in advance how the coastal State should give its consent to the continuation of the pursuit and what should be done if no response to the request is received. After all, given the urgency of hot pursuit, when every minute counts, obtaining such consent may be a difficult task.⁶

Privately Contracted Armed Security Personnel

Many members of the Commission expressed doubts regarding the appropriateness of granting privately contracted armed security personnel the authority to seize a pirate vessel and arrest persons on board (draft article 9). In accordance with Article 107 of the UNCLOS, such a seizure may be carried out by military or other authorized government ships or aircraft.

Mr. Louis Savadogo explained that, in proposing this provision, he had sought to reflect extensive and well-established practice. Mr. Charles Chernor Jalloh supported the Special Rapporteur, noting that the Commission should indeed not pretend that such practice does not exist — on the contrary, it should address it to avoid a legal “grey area” that no one needs. In the event of an imminent threat of attack, privately contracted armed security personnel may take temporary measures to gain control of a vessel or detain individuals. However, such actions should not be equated with the exercise of police powers in the traditional sense. As noted by Mr. Munkh-Orgil Tsend (Mongolia) and Mr. Giuseppe Nesi (Italy), in this case they may be acting, rather, in self-defense — this fundamental distinction should be more clearly reflected in the draft article.

Ms. Vilawan Mangklatanakul, Ms. Alina Orosan, and Mr. Carlos J. Argüello Gómez (Nicaragua) also drew attention to the responsibility issues that might arise in the event of such an unlawful seizure.

Further Consideration of the Topic

The interim oral report by the Chair of the Drafting Committee was presented to the Commission for information, and the Commission took note of it. The Drafting Committee will continue its work on the draft articles at the 78th session in 2027. At the 78th session, Mr. Louis Savadogo will also present a second report, in which he will continue an in-depth examination of the topic, considering the comments of ILC members and future comments from States. Based on the work plan set out in the Special Rapporteur’s note, the second report will present an analysis of legal instruments of cooperation, accompanied by draft articles.