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Introduction
Piracy has forever terrorized seafarers. It has always been a far greater fear than any other peril at sea, especially on the coasts of Somalia and in the Strait of Malacca. Recognizing such hardships at sea, the United Nations as well as the International Maritime Organization has formulated policies and undertaken legislation to effectively deal with pirate attacks. However, in light of the impact of these attacks on the volume of international trade and seafaring, the current body of law dealing with the framework has been underlined while assessing the economic impact of piracy on international trade.
The National Geographic Magazine perfectly captioned the current situation in East Asia: “The Strait of Malacca — Pirates haunt it. Sailors fear it. Global trade depends on it.” The region is experiencing a crisis, a failure of state machinery in combating the scale of a problem affecting the world simultaneously on a political, economic and social level. The nature of the crime has evolved over the last decade in particular, and it still remains a major concern which has not been tackled effectively by the governments in this hub of maritime trade.
For the purpose of piracy and international law, we include within East Asia the countries of China, North and South Korea, Japan, Mongolia, and also specifically the pirate-fraught nations of Brunei, Cambodia, Indonesia, Malaysia, Philippines, Myanmar, Singapore, Thailand, Vietnam and Timor. All of the above countries (except for Cambodia) have ratified the UNCLOS, with the most recent members being Timor-Leste and Thailand. The Convention obliges signatories to cooperate in the suppression of piracy on the high seas to the fullest extent, and lays out the rules for doing so under Articles 100 through 107.
The purpose of this essay is to bring to the fore the basic principles of international law in light of their implementation on a domestic level. Along with the historical significance of piracy, the essay analyses the various anti-piracy measures outlined in international law, along with the problems they pose. The next part of the essay assesses the domestic laws of Malaysia and Singapore, two countries of the Malacca region affected by piracy, in order to compare them to international law. An attempt has also been made to highlight the changing nature of piracy over the last few decades, while assessing the economic impact of piracy on international trade.
An Age-Old Legacy
Piracy has been a known threat to economy in Eastern parts of Asia for several centuries. It is often referred to as the world’s third oldest profession, medicine being the second oldest. The narratives of Shih Fa-Hsien, who journeyed to China in 414 AD, are replete with discussions of the perils of travel in the Strait of Malacca and the South China Sea. Historically, it has been seen that before being colonized, these territories housed two kinds of people — the orang lautor sea peoples, who collected presents and port duties from passing vessels, and the perompak or pirates, who were renegades and outlaws. It was only with the rise of international trade and seafaring that piracy became a crime under international law.
Till the last few decades, the incidence of piracy continued to increase and substantially affect the maritime trade in pockets like the Malacca Strait and the South China Sea. However, cases of piracy went largely unreported till the 1990s. After certain events like the Asian financial crisis of 1997 which drove several coastal peoples to piracy as a desperate form of sustenance, and the Petro Ranger attack in 1998, the trend of reporting cases of pirate attacks grew. For this reason, it has been said that although piracy seemed to diminish from the 19th through most of the 20th century, it has made a strong resurgence in recent decades. By the late 1990s the annual number of reported pirate attacks in the Strait went from virtually zero to seventy-five. As per data collected by the International Maritime Bureau’s Piracy Reporting Centre, Asia was the most ‘pirate infested’ region in the world between 1992 and 2006 — in 2004, for instance, Indonesia alone accounted for 93 out of 329 attacks recorded worldwide.
The Driving Factors behind Attacks
Some of the main causes for piracy in the regions of East Asia have been studied by several scholars. An attempt has been made to highlight that the region’s attacks have originated off the Indonesian coast (about 70% from 2004–07). Indonesia, an archipelago consisting of thousands of islands, presents an exceptionally vulnerable terrain for piratical capture, especially in a scenario where the benefits of rapid but targeted development have not been able to reach the remotest corners of the nation, and where over 10% of the population continues to live under the poverty line and about 40% is vulnerable to poverty.
Economic Hardship
A series of factors starting with the introduction of more effective fishing technologies in the 1960s, resulting in an extensive reduction of ocean stocks in fishing grounds, followed by the 1997 financial crisis in Asia, which led to more poverty in an already economically troubled region, is believed to have caused many small fishermen to turn to piracy in a desperate attempt to make a living. However, in recent years, trends have shown that piracy is veering towards becoming a more organized crime, wherein unemployed and desperate fishers have been hired by organized gangs of criminals in order to attack or hijack merchant vessels.
Lack of Preventive Infrastructure
Most countries affected by piracy generally do not have adequate mechanisms in place to tackle the issue of hijackings. It has been observed that even in major ports which boast of having installed the most advanced security screening systems, the number of vessels and containers opened and examined remains below 10%. Furthermore, security personnel and often army officers partake in these acts by accepting bribes from pirates and letting them pass, simply because it is a more profitable venture than their daytime jobs and there is a lack of supervision on officials at this level. When these government officials become the ones to perpetuate piracy, it leads to a complete failure of official machinery to combat the root problem.
Volume of Trade
In the Southeast Asian region, vessels are particularly vulnerable while making their passage through the narrow waterways and cramped geographical terrain of the Straits. The high volume of traffic makes effective policing difficult, granting pirates easier access to vulnerable ships and providing cover for an attack.
International Law on Sea Piracy
“Piracy by the law of nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its punishment, it is an offence against the law of nations; and as the scene of the pirate’s operations is the high seas, which it is not the right or the duty of any nation to police, he is denied the protection of the flag he may carry, and is treated as an outlaw, as the enemy of mankind — hostis humani generis whom any nation may in the interest of all capture and punish.”
The above statement by Judge Moore in the Lotus Case sums up briefly the international anti-piracy regime. International law, originally, recognized only two legal entities: people and states. A third entity was created by the Declaration of Paris, wherein people who were deprived of both individual rights and protections of law granted to citizens, as well as the protection lent to such citizens by virtue of the legitimacy and sovereignty of state machinery, were included. This understanding of pirates as a legally distinct category of international criminals was echoed in the 1958 and 1982 U.N. Conventions on the Law of the Sea, and persists to the present day.
There are broadly two reasons why piracy is dealt with at the international level — firstly, pirates are considered hostis humani generis (enemies of mankind), and secondly, as piracy is committed on the high seas, no single state has jurisdiction in the repression of pirate attacks.
The high seas, unlike land and other possessions, do not belong to any single nation or entity. Since no country can singularly own or possess the high seas, therefore they are considered to belong to all of mankind collectively. Every nation has an equal right to navigate ships across the seas (mare liberum) and thus, perils of navigation are to be shared by all the nations jointly. There exists a law of amity and reciprocity among the seafarers, who are perceived to owe a moral duty to assist each other in distress — ‘Save life above all and first, then property’.
Piracy as Jus Cogens
Jus cogens is a peremptory norm of international law from which there can be no derogation. Any act in violation of such a norm would constitute a jus cogens crime. Till now, there are only a limited number of recognized jus cogens crimes, piracy being one of them. Such recognition by international law places a greater duty upon states to prevent and repress acts of piracy. This is because pirates are not mere criminals, but considered enemies of the human race.
United Nations Convention on the Law of the Sea and Other Codified Law
The 1958 Convention on the High Seas was the first international legal framework to deal with piracy. This piracy suppression regime was later incorporated in Articles 100 to 107 of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). The UNCLOS, supplemented by the 1988 Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation as well as the 2005 SUA Protocol, provides a comprehensive legal measure by defining piracy and laying down obligations upon Party States.
The Convention’s definition of piracy has broadly five elements: (a) The acts complained of must be crimes of violence; (b) such acts should be committed on the high seas; (c) acts must be committed by a private ship or a public ship whose crew has mutinied; (d) acts must be committed for private ends; and (e) there should be the involvement of at least two ships. Actual robbery, therefore, is not an essential element in the crime of piracy jure gentium. Even a frustrated attempt to commit a piratical robbery is equally piracy jure gentium. This definition, despite facing much criticism, has been widely incorporated into other definitions of piracy.
Article 100 of the Convention places an obligation upon all states to cooperate to the fullest possible extent in the repression of piracy. This gives birth to the concept of ‘Universal Jurisdiction’ which has been incorporated under Article 105 as an exception to the principle of exclusive flag State jurisdiction over ships in the High Seas as envisaged under Articles 92 and 94. Article 105 provides that every state has the right to seize the pirate ship or aircraft along with the criminals irrespective of whether it has a nexus with the act or not.
This principle is based on two important considerations: firstly, as pirates are enemies of mankind in general and not perpetrators against any particular state, all nations have the jurisdiction to capture and prosecute them as per their domestic laws; and secondly, as the high seas do not fall under any jurisdiction, any state can take upon itself to prosecute the pirate attack.
The principle was mainly accepted by states as pirates were a threat to all nations, attacking ships indiscriminately while not being subject to the authority of any state, and therefore no state was responsible for their actions. This principle can be seen in practice in the Alondra Rainbow incident where a Japanese tanker with a Filipino crew was attacked by pirates while it was sailing from Indonesia to Japan. The pirates were captured by the Indian Navy and the vessel was towed to India where the pirates were tried and convicted under Indian law.
The principle of universal jurisdiction against acts of piracy as well as the other provisions of the UNCLOS are not limited to the Party States but are binding on all states as they form a part of customary International Law. However, the Achille Lauro incident of 1985 revealed glaring deficiencies in the anti-piracy regime in practice, and greater importance was given to the SUA Convention and Protocol. The aforementioned treaties diluted the requirement of the act being committed only for private ends and extended it to cover political acts as well. Also, the two-ship requirement which posed several difficulties by not recognizing ‘internal seizure’ as an act of piracy was substantially removed. Thereby, any act of violence against another person aboard or the unlawful and intentional seizing or exercising control over a ship by force or threat thereof which endangered the safe navigation of the ship was punished. Moreover, the right to extradite the offenders after establishing jurisdiction was granted to the Contracting States.
Universal Jurisdiction
Piracy may also be governed by the international law on the use of force apart from the UNCLOS and the SUA Convention. According to Chapter VII of the UN Charter, the UNSC is authorized to take actions to maintain international peace and security. It also allows for collective self-defense actions under international law.
This has also been confirmed by a series of UNSC resolutions which allow the use of force against piracy in response to rampant piracy off the coast of Somalia. In these resolutions, the UNSC authorized the international community to “take all necessary measures” to combat piracy not only in the territorial waters of Somalia, but also in the mainland of Somalia as it linked the activities of pirates with the notion of a threat to international peace and security.
Certain other conventions like the International Convention against the Taking of Hostages, 1979, the International Convention for the Suppression of the Financing of Terrorism, 1999 and the UN Convention on Transnational Organized Crime, 2000 can also be applied to deal with piracy at sea.
Under the Hostage Taking Convention, any person who takes a hostage, attempts to do so, or participates as an accomplice of any person who commits or attempts to commit such an act shall be prosecuted or extradited by the State Party to the Hostage Taking Convention when the alleged offender is present in the territory or the territorial sea of that State Party. Thus, when a pirate hijacks a ship and takes the crew as his hostage, he is liable to be covered under the above Convention.
It has also been strongly advocated that piracy is nothing more than a form of ‘maritime’ terrorism and should therefore be governed by the recently codified international anti-terrorism law. Thus, a person commits an offence under the Terrorist Financing Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they will be used, in full or in part, to carry out an offence listed in any one of the treaties provided in the Annex, including the Hostage Taking Convention. An offender under the Convention shall be subjected to criminal prosecution or extradition, and have their funds as well as proceeds derived from piracy seized and forfeited by any State Party to the Terrorist Financing Convention.
When piracy, as a serious crime, is committed by persons participating in an organized criminal group or when pirates launder the proceeds of their crime, State Parties to the United Nations Convention against Transnational Organized Crime (UNCTOC) can prosecute the offenders and may confiscate and seize proceeds of crime as well as property, equipment or other instruments used in or destined for use in these offences.
Multi-lateral Initiatives among East Asian Nations
These are regional agreements, aimed at creating greater levels of cooperation among the nations of the world most affected by the perils of piracy. They supplement and in certain situations go further than the UNCLOS in defining measures to tackle the problem.
MALSINDO
The first multilateral measure to be introduced by the three littoral states of Malaysia, Singapore and Indonesia was the Trilateral Coordinated Patrol, or MALSINDO, which was launched in 2004, and involved the navies of the three countries patrolling their respective territorial waters.
The Regional Cooperation Agreement on Anti-Piracy (ReCAAP)
Brunei, Cambodia, China, Japan, South Korea, Myanmar, Philippines, Singapore, Thailand and Vietnam are parties to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP). The definition of piracy under the ReCAAP is the same as under the UNCLOS, and its main aims are facilitating the sharing of information and the development of capacity-building efforts to combat piracy and armed robbery in the region.
Article 3 of the Agreement directs all Contracting Parties to take measures against piracy through national regulations, while Article 4 establishes an Information Sharing Centre to promote cooperation among the Parties in suppressing piracy. Malaysia and Indonesia, while expressing a willingness to cooperate with the Information Sharing Centers set up under the Agreement, have not signed or ratified the Convention.
Thus, in these two jurisdictions, where piracy is most prevalent, the implementation of the existing legal framework is, to say the least, half-hearted. Moreover, the laws themselves have not adapted sufficiently to changing trends in the nature of the crime itself.
Domestic Regulations
In order to analyze the overall efficacy of international anti-piracy measures, the countries of Malaysia and Singapore have been chosen for a detailed analysis of the domestic measures taken by their governments to prosecute and punish the offence of piracy in consonance with the standards of the UNCLOS and other agreements.
Domestic Regulations in Malaysia
The Federal Constitution of Malaysia does not contain any provision automatically adopting international treaties and conventions. Under the Ninth Schedule, the Constitution provides that the Parliament shall undertake the implementation of international conventions and treaties entered into by Malaysia. Piracy not being expressed as a crime under the Malaysian Penal Code, pirates must be tried for other substantive offences like gang-robbery.
However, if an act is illegal in Malaysia, any Malaysian person or a person on board a Malaysian ship committing such an act can be punished for the same by a Malaysian court. Further, Malaysian High Courts have the jurisdiction to try offences committed by any person on the high seas where the offence is piracy by the law of nations, thus embracing the principle of ‘universal jurisdiction’. However it is still unclear as to whether the Courts will have the jurisdiction to try an act prohibited by the UNCLOS but not criminalized by Malaysian law.
Acts of piracy that occur within the Malaysian Maritime Zone (MMZ) are policed by the Malaysian Maritime Enforcement Agency (MMEA), established in 2004. The MMZ includes Malaysia’s internal waters, its territorial sea, its continental shelf, its exclusive economic zone, and the Malaysian fisheries zone, and within these boundaries the MMEA is in charge of maintaining law and order and specifically with preventing piracy.
Domestic Regulations in Singapore
Singapore’s Constitution does not have any provisions on who has the authority to negotiate, conclude and/or ratify international conventions. It does not have any legislation (primary or subsidiary), executive or administrative orders or any other document, official or otherwise, setting out the practices and procedures to be followed in treaty ratification and implementation.
While the exact process of implementation of treaties entered into by Singapore is not publicly available, before ratifying or acceding to an international convention, Singapore usually ensures that it either has existing legislation which complies with its obligations under the convention or enacts new legislation. However, this enactment is discretionary.
With regard to Singapore’s domestic treatment of extra-territorial crimes, the Supreme Court of Judicature Act, while establishing the criminal jurisdiction of the High Courts, gives the latter jurisdiction to try offences committed by any person on the high seas where the offence is piracy by the law of nations, or by any person in any place if any written law provides that the offence is triable in Singapore. Therefore, the High Court is able to exercise extraterritorial jurisdiction in the circumstances described under Section 15.
Singapore does not have any national legislation which needs to be enacted before an international convention can have the force of law in the country, implementing the piracy provisions contained in Articles 100 to 110 of UNCLOS. However, the provisions of the Singapore Penal Code, following the New Zealand legislation on piracy, establish two offences in relation to piracy, ‘piracy by the law of nations’ and ‘piratical acts’. While these offences do not directly implement the definition of piracy under the UNCLOS, the term ‘piracy by the law of nations’ effectively includes piracy under international law, which is codified in Article 101 of UNCLOS.
However in the light of lack of reported offences under Section 130B, there is no jurisprudence in Singapore interpreting the term. The Singapore Criminal Procedure Code gives police officers the power to arrest for piracy under the law of nations and piratical attacks without a warrant within the territorial waters of Singapore. The Singapore Armed Forces Act gives legal authority to the Armed Forces (including the Navy) to be deployed as necessary to combat piracy and piratical acts.
Defects with Current Anti-Piracy Law
Some clear defects can be observed with the existing legal mechanisms to combat piracy. As stated by Judge Wolfrum, the narrow definition of piracy put forth by the UNCLOS only covers a small segment of violence on the high seas. Effectively, the legal threshold consisting of the three conditions under the definition is too high for many maritime activities to qualify as piracy, even if the level of risk and violence involved poses an equal danger to international maritime safety.
The UNCLOS also does not provide for a concrete mechanism of trial and punishment, which has led to most domestic legislations perpetuating confusion, and in turn ambiguity of a threatening kind, in their attempts to punish piratical acts. The problem is further supplemented by a clear lack of domestic anti-piracy legislation and jurisprudence. Thus, the pressing need of the hour is to make the UNCLOS compatible with State practice and the other related instruments in order to create clear legal guidelines for addressing piracy.
However, there are certain measures that can be adopted by the international society to curtail these defects. The first of these is to expand the international definition of piracy. The IMB has illustrated the use of a broader definition of piracy, one that enables a system to not only overcome the distinction between the high seas and territorial waters, but is also extensive enough to include any attack or attempt thereof on a ship, whether anchored or at sea. While the IMB’s definition has been embraced by domestic laws and legal opinions, the question of whether it can be recognized by international law remains unclear. A pressing need is also felt to make the UNCLOS compatible with State practices and guidelines for combating piracy.
A Perspective on Solving the Problem
Piracy is not a crime that exists in a bubble. As UN Secretary-General Ban Ki-moon has stated, “Although piracy manifests itself at sea, the roots of the problem are to be found ashore. …. In essence, piracy is a criminal offence that is driven by economic hardship, and that flourishes in the absence of effective law enforcement.”
The high volume of maritime traffic makes effective policing difficult, granting pirates easier access to vulnerable ships and providing cover for an attack.
Piracy — An Armed Robbery
In order to reap the benefits of his effort, the pirate must not only manage to take over a ship and claim its value, but also get the cargo back to land and turn it into a form of remuneration he prefers. This involves the cooperation of not just a piratical crew, but a plethora of government officials, army members and the bureaucracy — the goods, once stolen, have to eventually end up on land. This is why the responsibility for curbing piracy lies foremost with the law administrators on land.
The nature of piratical attacks ranges from cases of armed robbery, hijacking of the vessel, the ‘phantom ship’ technique and the most serious form, kidnapping and hostage-taking. Even if the overall statistical frequency of piracy in the Southeast Asian region has reduced significantly over the last few years, its continued occurrence, albeit in small numbers, necessitates an overhaul of the existing mechanisms which have led negotiators into making ransom payments, making a pirate’s job one of the most profitable.
There are several reasons for which States are reluctant, or unable, to handle piracy domestically. It is seen that most States neither show strong political intention, nor have well-arranged domestic laws to prosecute pirates. This is seen especially in States with little interest in maritime trade, with instances like the refusal of Kenya to prosecute pirates from non-Kenyan naval forces. Another fear confronted by States is that if they decide to prosecute pirates, they will be forced to grant them asylum once their sentence has been served.
Another reason for poor domestic implementation is the conceptual and practical fissure between international and domestic law. The UNCLOS does not require signatory States to mandatorily enact anti-piracy laws aligning with its provisions, nor does it provide model laws for States. However, it is based on the presumption that States have adequate legislation of their own to prosecute pirates, a conjecture which is far from reality.
Moreover, the complex issues of international cooperation versus the struggle for sovereignty have marked the planning of better defense strategies for these areas, often leading to policy paralysis on the level of international cooperation. The three littoral states have refused offers by the governments of China and Japan for patrolling the Malacca Strait with their superior technology, worrying about threats to their internal state machinery and interference with their use of marine resources.
In the meanwhile, pirates have been using the ransoms paid to them by corporations for the purchase of better machinery and equipment, posing newer and more advanced challenges to an already unsteady system. The average ransom amounts have been rising to well above $5 million after 2010. Larger amounts entail longer negotiations, meaning that hostages are also taken for longer periods. The ransom amounts coupled with repair of the cargo, compensation for hostages etc. may be only a fraction of the value of the cargo held ransom; however, it amounts to making rich the piratical industry with money that would otherwise fuel global trade and affect millions of lives.
On an international level, countries like Malaysia and Indonesia have, in discussions, deemed piracy to be an issue of domestic concern, to be addressed by every state as it deems appropriate. These countries have rebuffed advances by both the United States and Japan to contribute in the fight against piracy by providing more advanced technology. Indonesia, in the light of lack of funds to combat piracy, engaged in a public denial of the piracy problem for years after the 1997 Asian crisis. On the other hand, the Singaporean government has been more receptive to cooperation on an international region.
Conclusion
Piracy, as this essay has attempted to depict, is much beyond just the popular portrayal of affable hooligans popularized by the media. It is a complex and severe crime that has shaken several governments and dented the world economy for centuries, and continues to do so. The international mechanisms in place have proven to be only moderately successful in curbing piratical occurrences, but most significantly, there have been surprisingly few domestic initiatives taken by the countries most affected by pirates. Most East Asian nations today continue to punish piracy under the offence of ‘armed robbery’ as piracy is still not an offence in these countries, when in fact this complicates the prosecution process.