Measures to Suppress Piracy and Armed Robbery Against Ships in the Southeast Asian Seas

Increasing numbers of piracy and armed robbery against ships are being reported in the Southeast Asian Seas. In addition to the measures taken up to now, more effective measures need to be taken through local legislations in the relevant countries and ASEAN regional cooperation.

The Present State of Piracy and Armed Robbery Against Ships

According to the 73rd session report of the International Maritime Organization's (IMO) Maritime Safety Committee (MSC), there have been 2017 reported cases of piracy or armed robbery at sea between 1984 and October of 2000, and in recent times the frequent occurrence of such crime in Southeast Asian waters is apparent. According to the International Maritime Bureau (IMB), of the 467 cases reported in 2000 (including attempted piracy or armed robbery), the 119 cases in surrounding Indonesia and 75 cases in the Malacca Straits, make up nearly half of the reports for the entire world. Aside from the number of attacks, while the robbery of money, goods, equipment and crew's belongings were the most dominant forms of pirating, there were also 8 reports of vessels being hijacked in their entirety and even one case of the intruders changing into the uniforms of officials in order to complete their act. The occurrence of such incidents is not only on the increase, but presently there is also little promise that the situation can be controlled.
The analysis of pirating data shows that a large part of the criminal conduct occurs in straits that are used for international navigation, or within harbor limits and territorial seas . From the point of view of the people committing these crimes and those unfortunate to be on the receiving end of their acts, it doesn't really make any difference where the acts of criminal conduct occur. However, when it comes to catching the criminals, obtaining sufficient evidence for prosecution and administering the correct sentences in court, suddenly the location of the crime and the position of the vessel attacked become very important. Under international law, any state can seize a ship and commit the offenders to punishment in that country, if the act is deemed to be piracy in high seas (Articles 101 and 105 of the United Nations Convention of the Law of the Sea). However, criminal acts within the harbor limits and territorial waters aren't officially recognized as acts of piracy, but are classified differently as acts of "Armed Robbery Against Ships". Therefore, as long as acts of criminal conduct occur within internal or territorial waters of a littoral country, unless there are special grounds for provision under international law, the entire responsibility for the enforcement and prosecution of such acts fall on the particular littoral country in which the crime occurred, and no other countries are allowed to enter the picture.

Previous Measures Against Piracy and Armed Robbery

It is often pointed out that the background to piracy and armed robbery in the Southeast Asian Seas lies in the social and economic situation of the region, but as far as direct measures towards piracy are concerned, efforts are currently concentrated around the self-defense measures of the vessels that pass through the region and the strengthening of sea patrols by the relevant countries. Up until the present, the Piracy Reporting Center (PRC) of the International Chamber of Commerce (ICC)/IMB has carried out the important role of fielding reports of piracy and off their own backs ships operating in the region have increased surveillance activities in an attempt to prevent attacks. Singaporean authorities and the Malaysian Marine Police Force have also increased their patrols, but the area that requires surveillance has obviously proved to be too large, and subsequent improvement in the situation has yet to be seen.
In May of 1995 IMO established the "Recommendations to Governments for Preventing and Compressing Acts of Piracy and Armed Robbery Against Ships" (MSC/Circ. 622, revised in May, 1999), which stipulates the necessity for the formation of action plans by littoral countries, shipping countries and flag states, the need to carry out investigations on acts of criminal conduct and to prosecute those involved in accordance with domestic law, and the requirement for the formulation of agreements between countries in the regions of high incidence. Likewise, the formulation of the "Guidance for Ship Owners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships" (MSC/Circ. 623) in May 1999 also designated measures for the self-defense of vessels that pass through the region. Additionally, since 1998, regional seminars held in regions of high incidence have also facilitated the promotion of measures to cope with piracy issues. Furthermore, in December 2000, the "Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships" was put together at the 73rd MSC meeting, which not only formed an MSC Circular that was passed onto each relevant country (MSC/Circ. 984), but was also submitted to the 22nd United Nations General Assembly. However, in regard to the official nature of this code of conduct for law enforcement officials of IMO member states, and indeed the "Government Recommendations" and "Guidance for Ship Owners (and so forth)" also mentioned above, at the present time they are not legally binding documents.

Measures for the Future

1. Japan's Counter Measures
After the Alondra Rainbow incident in October 1999 (a Panama registered vessel carrying two Japanese crewmen), a "Regional Conference on Combating Piracy and Armed Robbery Against Ships" was held in Tokyo in April 2000, where the "Asia Anti-Piracy Challenges 2000" for the related coast guard agencies in the Asian region and the "Model Action Plan" for maritime policy authorities were adopted, thus signaling the beginning of cooperation strengthening activities of the coast guard authorities in Southeast Asia. However, in addition to this, what is now required is the revision of domestic legislation. Criminal law in Japan is applied on the principles of territoriality and flag state, and therefore in the case that criminal conduct such as robbery and captivity does occur within Japan's territorial waters, unless the incident involves a Japanese vessel, current law is structured so that it can't be applied. Under this legal system, even if the culprits of the Alondra Rainbow incident were to be captured in Japan, this means they would be unable to be prosecuted. Surely the time has come to reconsider this passive approach to criminal conduct, of everything except incidents involving Japanese interests, if not at least to apply Japanese domestic legislation under the principle of universalism.
2. Counter Measures for the Southeast Asia Region
The issues surrounding piracy and armed robbery against ships in the Southeast Asian Seas are not just limited to the country where the criminal acts take place, but are issues that ride across many countries, including the nationality of the criminals and victims, the flag states of the offending and aggrieved vessels and the ports of destination of the ships involved. To combat this misconduct in the Southeast Asian waters, it is absolutely vital that the related countries maintain a close-knit communication and reporting framework, and engage in the fast transmission and sharing of all relevant information, as soon as it becomes available.
Furthermore, if the guilty parties or their vessels manage to escape enforcement in one particular country, they must be able to be apprehended at the next port of call in the region, arrested and prosecuted as is due fit under the domestic law of that country. In other words, the jurisdiction over both enforcement and administration of justice urgently needs to be addressed. Whether this can be achieved is totally reliant upon the close-knit cooperation of the many countries involved. For example, some desirable measures would be; the joint operation of sea patrols or, the creation of a framework that allows the coast guard authorities of the country where an incident originally occurred to continue tracing the particular offending vessel, even when it absconds into the territorial waters of another country, or corresponding to the revision of domestic legislation, to enable the country where the offending party or offending ship is/are located to detain those involved, constrain the movements of the vessel in question and secure prosecution of the criminal act. In this relation, the formulation of joint investigation frameworks and laws for the collection and submission of evidence and/or the transfer of criminals between countries is also required, to ensure that the prosecution is successfully processed. For this purpose, I strongly urge the related countries to step up their collaborations, in view of forming a Southeast Asian based cooperative network to address this increasing incidence of piracy and armed robbery against ships in the region.