Somali pirates seized the Marida Marguerite and the Quest on the high seas and took them into Somali’s territorial waters. Mohammed Saaili Shibin (the defendant) boarded the two ships after they were taken into Somali's territorial waters and conducted the negotiations for ransom (see further CMI390). The defendant was charged with aiding and abetting piracy in violation of 18 USC §§ 1651 and 1652. The defendant appealed on the ground that the court lacked subject-matter jurisdiction over his charge because his conduct did not take place on the high seas. The defendant contended that in order for his facilitating conduct to amount to piracy, his conduct must have been carried out on the high seas. In addition, the defendant cited art 86 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS), which provides: 'The provisions of this Part [Part VII, 'High Seas', which includes art 101] apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State'. The defendant contended that the requirement of 'high seas' under art 86 of UNCLOS should be read into the definition of the facilitating acts described in art 101.c. Thus, the issue presented before the appellant court was whether the defendant, whose conduct took place in Somalia's territorial waters, might be prosecuted as an aider and abettor of the piracies of the two ships which took place on the high seas.

Held: Appeal dismissed.

UNCLOS defines piracy in art 101. Articles 101.a and 101.c of UNCLOS define distinct acts of piracy in their respective sections. Article 101.a defines piracy to include specified acts 'directed on the high seas against another ship ... or against persons or property on board such ship'. On the contrary, art 101.c defines piracy to include any act that 'intentionally facilitates' any act described in art 101.a. Article 101.c is linked to art 101.a to the extent that the acts under art 101.c must facilitate the acts that violate art 101.a. There is no requirement for acts that facilitate high-seas acts must themselves be carried out on the high seas.

In addition, art 86 serves only as a general introduction, providing context to the provisions that follow. It does not purport to limit the more specific structure and provisions contained in art 101. Moreover, various international authorities reflect that piracy committed on the high seas is an act against all nations and all humankind and that persons committing those acts on the high seas, as well as those supporting those acts from anywhere, may be prosecuted by any nation under international law.