Piracy in Southeast Asian Waters: Overview on International and Regional Legal Instruments

Article by PhD. (Candidate). Ahmad Almaududy Amri. This article was published in 1 Cornell Int’l L.J. Online 128 (2014) and footnotes has been taken out. For original work please visit http://cornellilj.org/piracy-in-southeast-asia-an-overview/ 

 

One of the main maritime security threats in Southeast Asia is Piracy. Whilst piracy has always been a perennial problem in the region, this threat has received increasing attention in the region over the past few years. Reports published by the International Maritime Organisation as well as the International Maritime Bureau show an alarming number of piratical acts in Southeast Asian waters over the past decade. It has the second highest figure of piracy attacks in the world from 2008-2012. Only the African Region transcends the number of piracies that were committed in Southeast Asia. The geographical location of the region is very important to world trade. There are several sea lanes and straits which are normally used for international navigation mainly for trade purposes. In fact, there are six out of 25 busiest ports all over the world located in Southeast Asia. Nonetheless, there are efforts being taken by states at the international as well as regional level to combat piracy.

 

International Instruments

 

The Security Council has repeatedly reaffirmed that international law, as reflected in United Nation Convention on Law of the Sea (LOSC), regulates the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities. LOSC in particular has regulated the problems of piracy in articles 100 to 107. Article 100 LOSC obliges all states to cooperate to the fullest possible extent in the repression of piracy. The definition of piracy could be found in Article 101. However, one of the weaknesses of LOSC is that it does not categorize attack against ship conducted in territorial sea as piracy.

 

Another legal instrument used to combat against illegal acts conducted at sea including piracy is the Convention on the Suppression of Unlawful Act against the Safety of Navigation (SUA Convention). This convention does not specifically aim to address piracy, however, piratical acts is subject to SUA Convention. This convention was initiated after the hijacking of an Italian cruise ship, Achille Lauro in 1988 which was allegedly motivated by political ends. Unfortunately, article 101 LOSC was not able to punish the perpetrators as the act did not meet the requirement ‘committed for private end’. Therefore states find it important to create a legally binding instrument which could arrest criminal acts at sea committed for political and other ends. This convention filled the gap in LOSC that limits illegal acts of piracy which requires the two ships involvement as well as it should occur on high seas or other areas beyond the national jurisdiction. However, this convention does not gain popularity in the region. Indonesia, Malaysia and Thailand have not acceded SUA Convention 1988 and its Protocol. Furthermore, none of the states in the region acceded SUA Convention 2005 and its Protocol.

 

Regional Instruments

 

Southeast Asia region adopted the so called Regional Cooperation Agreement against Piracy and Armed Robbery (ReCAAP). This agreement was adopted on 11th November 2004 and came into force on 4th September 2006.

 

ReCAAP in its text defined piracy and armed robbery. Its definition is not new to states as it adopted the definition of piracy (Article 1 ReCAAP) from Article 101 LOSC and armed robbery from IMO’s Code of Practice for Investigation of armed robbery against ship. ReCAAP also provide extradition measures. According to article 12, member states in accordance with their respective national laws shall cooperate to extradite person who have committed the act of piracy and armed robbery. As a regional measure, ReCAAP does not supersede the enforcement measures of UNCLOS. In line with this view, it does not facilitate member states to seize pirate ship in other state’s territorial sea. However, there are several weaknesses of ReCAAP such as it does not posses great impact in terms of joint maritime enforcement operation. Furthermore, Indonesia and Malaysia have not acceded ReCAAP.

 

Another regional effort to suppress piracy especially in Malacca Strait is MALSINDO which was introduced in July 2004. MALSINDO composed of navies from three littoral states in Southeast Asia namely Malaysia, Singapore and Indonesia. Its task is to conduct coordinated patrol within their respective territorial sea around the Strait of Malacca. The reduction of the number of piratical attacks was also influenced by the launching of aerial patrol over the Malacca Straits which is known as the “Eyes in the Sky” (EiS) plan. In 2006, Malacca Straits Patrols (MSP) was formed which consisted of both MALSINDO and EiS. Later, Thailand joined MALSINDO (2008) and EiS (2009). One of the weaknesses of MSP is that it does not allow the cross border pursuit over other states territorial sea as it is viewed as interference in other states’ sovereignty.

 

Measures to combat piratical attacks have also been initiated by some member states of ASEAN. It has been committed to discuss issues related to Maritime Security in their meetings. As the result there are three prominent forums which aim to address Maritime Security, namely: ASEAN Maritime Forum (AMF), ASEAN Regional Forum Inter-Sessional Meeting (ARF-ISM) on Maritime Security, and Maritime Security Expert Working Group (MSEWG). Despite this commitments, ASEAN Forums are regarded as ‘talk shops’, hence, a more technical efforts involving majority of the Southeast Asian states are needed.

 

Conclusion

 

Piracy still poses a serious threat in the region as its occurrence affects the international commerce and human safety. The international legal framework such as UNCLOS and SUA Convention seemed to be inadequate to resolve the problem. The narrow definition of piracy in UNCLOS is not able to encompass most of the piratical acts occurring in the region. Piracy occurs in territorial sea whereas UNCLOS punishes acts on the high seas. On the other hand, SUA Convention which was believed as a solution to this problem as it fills the gap left by UNCLOS does not gain popularity in the region. Two important littoral states in the region, Indonesia and Malaysia are not party to SUA 1988 ant its protocol.

 

Regional legal framework and forums seemed to be inadequate to resolve the problem. ReCAAP does not possess great impact in terms of joint maritime enforcement operations. Two littoral states Indonesia and Malaysia have not acceded ReCAAP. Moreover, ASEAN Forums are regarded as ‘talk shops’.

 

Having known that the MSP played a significant role in suppression of piracy in the Strait of Malacca, similar effort which involves a larger number of countries in the region could be a part of the solution. Furthermore, the approach of territorial sovereignty which is one of the fundamentals of the non-intervention principle still plays pivotal role in regional states’ foreign policy. The application of this approach should be reconsidered as it forms one of the barriers in multilateral cooperation. A cooperative mindset should be developed and promoted, whereas territorial sovereignty will still retain its respect.