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Volume 4

December 2008

Number 3

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, University of British Columbia
Vancouver, Canada

"Jolly Roger" No Longer - The Menace of Modern Piracy
Ian Townsend-Gault and Clive Schofield

During the greater part of the 17th and 18th centuries, and maybe beyond, those on vessels sailing into the port of London would be greeted by a grizzly spectacle. A gibbet would have been placed on a prominent spot, from which hung a long metal cage, inside which was the tarred body of a hanged man (and it was usually, but not always, a man). Similar gruesome displays would have been found at ports in busy trading areas like the Caribbean, because the unfortunate principal player in this spectacle was likely to have been found guilty of piracy, and his earthly remains used as a dreadful warning to others who might be tempted to follow such a calling.

Pirates have long been the figure of romance in the popular imagination, aided and abetted by novels like Stevenson's Treasure Island, the swashbuckling films of Errol Flynn and company, and more recently the Johnny Depp Pirates of the Caribbean series. Until recently, it is probably fair to say that most people assume piracy was a problem belonging to the past, or of local concern in remote areas of the world. Maritime experts have never shared this view, of course, and recent events off the Horn of Africa are helping to change the popular perception.

Modern Maritime Piracy
Those dealing with issues coming under the broad category of law and order at sea have long known that piracy and armed robbery against shipping (terms which are explained below) remains a very real concern. Concern over piracy has been, understandably, most acute on the parts of certain particularly interested governments, ship owners, insurers, and the most vulnerable category of all - crew-members. The subject has been addressed in major initiatives by the International Maritime Organization and the International Maritime Bureau. Piracy is a significant factor in the world of merchant shipping in many parts of the world, and the fact that governmental authorities are sometimes unable - or, worse, unwilling to do much about it has not gone unnoticed. Indeed, there are suspicions that individuals who are normally naval personnel and therefore deemed to have not merely an interest in but a duty to eradicate piracy are, in fact, a salient part of the problem.

General awareness of the extent to which piracy remains a problem was assisted in no small measure when, on November 15th, 2008, pirates thought to be from Somalia boarded and took control of an enormous Saudi-owned super tanker, carrying a cargo of two million barrels of oil valued at in excess of one hundred million dollars. And, as we were finishing this article at the end of November, so came the news that a cruise ship avoided capture by out-running its pursuers, who nonetheless managed to hit their quarry with gun-fire. Not, perhaps, the sort of voyage the thousand-odd passengers paid for.

Clearly, we have moved well beyond the realm of Errol Flynn's Captain Blood, when "walking the plank" was the greatest peril seafarers had to fear:

    Nowadays piracy still exists, albeit in new forms which require new means for its suppression. Pirate attacks occur with alarming frequency in many parts of the world. Attacks range from incidents in which the pirates have simply taken money and valuables from the crew and the ship's safe to cases where the entire cargo has been stolen and in some cases the ship as well. Usually only the threat of violence is used but there have been injuries and sometimes crew members have been murdered. Reports of these incidents show that apart from the danger to the crews who are the victims of an attack, the navigational and environmental dangers in cases where the crews have been tied up and the ships have been left to steam full power with no one in control while the robbers make their escape can certainly be exaggerated, especially in areas where there is heavy traffic. (Division of Ocean Affairs and the Law of the Sea (DOALOS) in John Mo, "Options to Combat Maritime Piracy in Southeast Asia", Ocean Development & International Law, 33:343-358, (2002), 344.)

The main loci of piracy attacks in recent years have been the Indonesian and Philippines archipelagos and the Malacca Straits in Southeast Asia, the Bay of Bengal, the Gulf of Guinea and the Horn of Africa. Cooperative efforts to address the piracy problem in Southeast Asia are considered below. Additionally, the complex tissue of facts and issues arising in the specific context of Somalia is the focus of a companion article in this issue of IZ. First, though, we should consider what exactly constitutes acts of piracy or the closely related concept of armed robbery at sea.

The Problem of Legal Definitions: When is a Pirate not a Pirate?
Piracy has long been regarded as a crime iure gentium - a crime "against the whole world", and punishable by any state regardless of the nationality of the victim or perpetrator. This unusual jurisdictional exception to the normal rules indicates the extent to which piratical activities were seen as a widespread scourge, though it might be added that ship and cargo owners were no doubt more than anxious to remove any restraints on possible mechanisms for dealing with this problem.

It has often been remarked that English law in particular has always dealt more severely with crimes against property than crimes against individuals: until the onset of late 20th century terrorism the so called "great train robbers", responsible for a spectacular robbery in 1966, received the longest prison sentences ever handed down by an English court. It is therefore not wholly surprising to see this supreme offence against property elevated to the status of a crime jure gentium before, say, genocide.

In the international law context, piracy is defined in Article 101 of the United Nations Convention of the Law of the Sea as:

    (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

    (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

    (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

    (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

    (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Article 100 of the Convention commits state parties to cooperate in the suppression of piracy on the high seas.

The important aspects of the definition are the criminal intent, the use of force, the taking over of a vessel against the wishes of master, and the robbery of cargo, the possessions of those on board, or even the vessel itself, as the ultimate objective. It is true that robbery per se does not appear to be the major objective of some contemporary Somali pirates, because vessel, crew, and cargo are released after the payment of ransom. But the taking over of the vessel by means of the use of force is a piratical act.

One notable issue here is that the term piracy as defined above is frequently misapplied. Piracy within the meaning of Articles 100-101 of the UN Convention on the Law of the Sea, only applies to acts taking place within the exclusive economic zone or on the high seas - not analogous acts within the territorial sea. The vast majority of attacks on shipping tend to take place relatively close to shore, and thus within the territorial seas of coastal states. Technically, therefore, the vast majority of piracy-style attacks are not deemed piracy under the law of the sea definition. An added complication in the Somali context is the fact that Somalia is amongst the dwindling band of countries which claim territorial sea rights out to 200 nautical miles from the coast. In recognition of this, the International Maritime Organisation (IMO) instead uses the term "armed robbery against ships" to cover these acts. In contrast, the International Maritime Bureau (IMB) has adopted a more all-encompassing definition of piracy as "an act of boarding any vessel with the intent to commit theft or any other crime and with the intent or capability to use force in the furtherance thereof." Whilst acknowledging these fine legal distinctions, we will use the term piracy in this article in accordance with its broader IMB definition.

In This Issue

Pirates Not of the Caribbean
Dr. Clive Schofield

Editorial: Reparations for Africa
C.G. Bateman, Editor

Literary Voices
Contributions from an international selection of writers

An African's Perspective: The UN in Somalia
Environmental Consultant and Somalian Citizen Aweis Issa reports on the Situation on the Ground in Somalia

Legal Responses
Quite apart from the problem of legal definitions, the piracy provisions of the 1982 Convention are arguably also a little general in nature, reflecting a somewhat traditional view of the problem. According to the convention, for example, the attack must be mounted from a vessel (a "pirate ship"). What would otherwise be an act of piracy would, if mounted from a helicopter, for example, not fall under the Convention's definition. There is a more fundamental objection to the relevance of these provisions: there are no provisions whatever relating to enforcement, leading to the conclusion that it is for each state party to give effect to these provisions in domestic law as it sees fit. This has inevitably led to an uncoordinated as opposed to a harmonized response.

Piracy became an issue of increasingly greater concern to the international community during the 1980s (during which time the 1982 Convention was not in force, though this is scarcely relevant when considering national measures for suppression and punishment), and maritime terrorism was to join it as being a new departure in unlawful acts at sea. In October 1985, Palestinian terrorists hijacked the Italian cruise ship Achille Lauro, and held it and its passengers and crew hostage. In the course of this incident, a wheel-chair-bound passenger named Leon Klinghoffer was murdered for no other reason than he was Jewish (this tragedy inspired the opera The Death of Klinghoffer by American composer John Adams, who would subsequently be accused, not least after the 9/11 attacks, of glamorising terrorism). The incident ended amidst recriminations between Italy, the United States, and Egypt, which is where the hijackers were flying once ship and passengers and crew had been released, only to find their plane forced to land by U.S. fighters.

As with the Torrey Canyon incident of 1967, the first of the significant oil tanker pollution disasters, the Achille Lauro hijacking and its aftermath showed important gaps in international and domestic law. In such multi-jurisdictional situations, who precisely was responsible (or liable) for what? Accordingly, in November 1985, the United States submitted a proposal to the Assembly of the International Maritime Organization (the United Nations specialized agency dealing with matters having to do with ships and, to some extent, oil platforms), that further measures where required, and a regime dealing with all aspects of suppression be drafted. This was agreed to and the result was the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention). The Convention was adopted on March 10, 1988, and enforced on March 1st, 1994. According to the Lloyd's Register of Shipping (December 31, 2007), there are currently 149 state parties representing 92.75% of the world's tonnage. The Convention was accompanied by a protocol for the suppression of unlawful acts against the safety of fixed platforms located on the continental shelf (same date of adoption and entry into force), which is supported by 138 states. Measures to amend both were adopted in 2005, but, as of November 2008, have attracted only a handful of state parties and are not yet in force. These instruments have more to do with the unlawful use of a ship in such a manner as to attempt to intimidate governments or international organizations, or to use the ship or any of its cargo, fuel, etc. in a manner likely to cause serious injury, death, or destruction. They are therefore not especially relevant to the suppression of piracy.

The importance of this agreement is that it commits state parties not only to exercising their jurisdiction where possible to arrest those engaged in piracy and seize their vessels and equipment, but also to either try pirates before the domestic courts, or to extradite them to their own state, or a state which has interest in an act of which the accused are suspected.

Adherence to the 1988 convention has improved very considerably in the first decade of the 21st century. It is no surprise to find a number of landlocked states amongst the non-adherence group (although a surprising number of these countries have in fact ratified). But it is at least worthy of note that countries such as Indonesia, and Malaysia have yet to ratify: it comes as little surprise Ethiopia, Eritrea, and Somalia have likewise opted to stay outside of its regime.

Cooperative Efforts to Enhance Maritime Security: the Southeast Asian Experience
As noted above, Southeast Asian waters have long been considered especially prone to acts of piracy and armed robbery at sea. In this context the Indonesian waters have proved particularly dangerous with around two-thirds of reported attacks in the region taking place there between 2002 and 2006. A number of factors contributed to the rise in piratical attacks in Southeast Asia from the late 1990s, notably the impact of the Asian economic crisis of 1997-1999 not only in socio-economic terms (making piracy an attractive option for fishermen suffering economic dislocation) but in governance terms (falling military budgets undermining enforcement efforts and increasing corruption). It is also the case that the Free Aceh Movement (GAM), based in northern Sumatra, helped to finance their struggle with the Indonesian government through piracy.

Furthermore, it is important to acknowledge that the number of potential targets for piratical attacks has risen considerably over time. Driven by the forces of globalisation, global trade has been growing substantially in recent years. Indeed, figures from the United Nations conference on Trade and Development (UNCTAD) indicate that the volume of trade carried by sea in 2007 was just over 8 billion tons as compared with around 6.3 billion tons in 2000 and a mere 2.6 billion tons in 1970. The vast majority (in excess of 90 per cent) of global trade is carried by sea. The export-driven economies of East and Southeast Asian states have been critical to this growth in the volume of trade - both in respect of demand for raw materials and the export of manufactured goods. It is the case, however, that much of the trade flowing through the waters of Southeast Asia has been ‘passing trade' as far as the coastal states by whose shores it passes and from where the pirates often strike. As these coastal states derive little benefit from this impressive flow of international commerce they consequently have little stake in suppressing piracy, as their economic interests are not directly affected. Coastal states, nonetheless, tend to be sensitive over questions of sovereignty and therefore highly resistant to the idea of other states, whose interests may be directly implicated by attacks on shipping, in essence securing their waters for them (as the US has, on occasion, seemed to suggest). The Strait of Malacca is a case in point. The Straits, which are bordered by Indonesia, Malaysia and Singapore, link the Indian Ocean to the Pacific and are crucial to global trade. Over 60,000 ships transit the Straits annually, carrying around one-third of global trade and one half of global energy supplies. Whilst security of the Malacca Strait and other strategic chokepoints such as the Sunda and Lombok-Makassar Straits are vital to the economic well-being of East Asian states (80-90 per cent of the energy supplies of Japan, China and South Korea pass through these waterways), arguably littoral states such as Indonesia benefit little from this tremendous through-flow of trade.

In recent years, however, the maritime security situation in Southeast Asia generally, and in respect of the Strait of Malacca and Indonesian waters in particular, has improved dramatically. How has this been achieved?

The answer is, essentially, through cooperative efforts. For example, the three states bordering the Malacca Strait have progressively enhanced their joint efforts focussed on enhancing maritime security. Key initiatives include year-round coordinated Malaysia- Singapore-Indonesia (MALSINDO) naval patrols (from 2004), the introduction of joint aerial surveillance ("Eyes in the Sky") (from 2005) and strengthened cooperation on information-sharing which has contributed to improved maritime domain awareness on the part of all three states. The impact of a generally improving economic climate and recovery from the Asian economic crisis also represents a significant underlying factor as this has simultaneously made piracy a less appealing prospect and also served to enhance governance. It remains to be seen what impact the present economic downturn portends. A further important contributory factor was the conclusion in August 2005 of the Aceh Peace Agreement, leading to a curtailment in piracy attacks related to that conflict. Finally, the states involved have benefited from considerable capacity building on the part of external powers, notably the United States and Japan.

The results, as mentioned above, have been dramatic. The number of reported attacks in Southeast Asia as a whole has steadily decreased from 187 in 2003 to 49 (so far) in 2008. With respect to the Straits of Malacca specifically the figures are similarly impressive: 38 in 2004 down to just two thus far in 2008.

Tackling a Multi-dimensional Menace
Near the beginning of this article, we quoted from a United Nations report which summarized the many problems arising in the context of piracy and armed robbery at sea. Whatever its causes may be, modern maritime piracy is a multi-dimensional menace, and the case for concerted, focused attention on its suppression is compelling - especially when the crucial importance of shipping to the global economy is taken into account. The European Union states are among those which have committed to send more naval assets to the waters off the Horn of Africa. But any response must be measured and proportional. Not every vessel with armed men on board is a pirate ship.

Having said this, the experience of Southeast Asia coastal states in this context - featuring socio-economic and governance improvements in order to address the root causes of piracy in concert with enhanced cooperative maritime security efforts - is perhaps instructive, and is discussed in Dr. Schofield's article which also appears in this month's issue of International Zeitschrift for Informative Dialogue on World Events.

More incisive articles from Ian Townsend-Gault


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