INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA TRIBUNAL INTERNATIONAL DU DROIT DE LA MER

Regional Efforts against Piracy in South East Asia & the Indian Subcontinent

Supervisor: President Jos Luis Jesus

Rajashree Rajan April 2011 June 2011

T ABLE OF CONTENTS
Legal Status of Piracy .................................................................................................................3 Scope of Paper........................................................................................................................4 Piracy as an Exception ............................................................................................................5 History of Customary International Law on Piracy....................................................................6 UNCLOS Articles 100 107 ....................................................................................................6 Limitations of UNCLOS Provisions .......................................................................................6 Piracy in South East Asia & the Indian Sub-continent .................................................................7 The Factors contributing to the growth, existence & resurgence of Piracy ...............................9 Regional Efforts Against Piracy .............................................................................................10 Regional Cooperative Agreement against Piracy and Armed Robbery in Asia and the Information Sharing Centre .......................................................................................................12 What is ReCAAP? .................................................................................................................12 Have ReCAAP & ReCAAP ISC been successful? .................................................................15 The factors leading to the success ........................................................................................15 The Challenges in utilising a similar model against Piracy elsewhere ....................................17 Conclusion ................................................................................................................................18 Appendix I .................................................................................................................................20 Appendix II ................................................................................................................................22 Bibliography ..............................................................................................................................24

LEGAL STATUS OF P IRACY

In its most basic form, piracy is an illegal act of violence at sea against a vessel, her crew and property onboard the vessel, for the personal economic gain of those who perform the act. There are at present two prominent definitions of the term piracy one in the 1982 United Nations Convention for the Law of the Sea (UNCLOS), and one proffered by the International Maritime Bureau (IMB). Article 101 of the UNCLOS defines piracy by listing out the acts that are taken to constitute piracy: (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). This definition is very similar to, and seen as an expansion of, the definition of piracy contained in Article 15 of the1958 Geneva Convention on the High Seas2, which preceded the UNCLOS: (1) Any illegal acts of violence, 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: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (2) 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; (3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.
1

Article 101, United Nations Convention on the Law of the Sea, Signed 10 December 1982 at Montego Bay, Jamaica. Article 15, Geneva Convention on the High Seas, Signed 29 April 1958 in Geneva.

The definition for piracy offered by the IMB is that piracy is the act of boarding any vessel with any intent to commit theft or any other crime, and with an intent or capacity to use force in furtherance of that act.3 The definition of piracy provided by the IMB is wider, covering all piratical acts irrespective of where the vessel is located in the seas at the time of the attack. However, this definition is not recognised in international law and is only utilised by the IMB to provide clearer statistics on the rates of maritime crimes. International law recognises piratical acts that occur within territorial and internal waters as armed robbery. While such armed robbery is recognised as an offence under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) , it is not contained in the UNCLOS which perceive acts within territorial waters a matter for domestic legislation to handle. Scope of Paper This paper seeks to look at the issue of Piracy in South East Asia and the Indian Subcontinent and to assess the effectiveness of the 2004 Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia (the ReCAAP Agreement) and the Information Sharing Centre (ReCAAP ISC). The geographic area that this paper intends to take into account include the national waters of the States in South East Asia and the Indian Subcontinent, as well as the international waters of the seas in these regions, which include the Arabian Sea, the Bay of Bengal, the Andaman Sea, the Malacca Straits, the Java Sea, the Makassar Straits, the Sulu Sea, the Gulf of Thailand & the South China Sea. A map of the region that this paper covers in included in Annex I of this paper. The definitions of piracy that will be used in this paper will be that contained in the UNCLOS. While the definition of piracy professed by the IMB is wider, the definition contained in the UNCLOS is more likely to be that which States rely on as the UNCLOS is the dominant international treaty on State responsibilities in relation to the law of the sea. The international acceptance of, and reliance on, the definition of piracy can be seen from the fact that it is this definition that is adopted in the ReCAAP Agreement. Documents produced by the ReCAAP ISC also make reference to armed robbery against ships. Where such references are made, the definition of armed robbery against ships utilised is that which is contained in the International Maritime Organisations (IMO) Assembly Resolution A.1025(26): Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships. By this definition, an act of armed robbery against a ship is: 1 any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or
3

Dana R Dillon, Maritime Piracy: Defining the Problem, [Winter-Spring 2005] SAIS Review, Volume 25, Number 1, 155-165. United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, signed at Rome on 10 March 1988

property on board such a ship, within a States internal waters, archipelagic waters and territorial sea; or 2 any act of inciting or of intentionally facilitating an act described above.

This paper will also look primarily at statistics from the years 2009 and 2010. This is due to the fact that in the years prior to this, statistics collected do not reflect incidences in areas such as the Arabian Sea, the Bay of Bengal, the waters off Sri Lanka, the Gulf of Thailand and the waters off Myanmar. As such, statistics would be lower merely for the fact that incidences in particular areas were not included in the count. The inclusion of statistics of piratical incidences from a greater area since 2009 can be attributed to an increase in commitment to and participation in the ReCAAP Agreement obligations by States. Piracy as an Exception The general rule embodied in Article 92(1) of UNCLOS is that a flag State has exclusive jurisdiction on the high seas over ships flying its flag. An exception to this general rule is contained in Article 100 of UNCLOS6 which states that All States shall cooperate to the fullest extent in the repression of piracy in the high seas or in any other place outside the jurisdiction of any State. This exception embodies the recognition by UNCLOS that piracy ought to be a crime of universal jurisdiction a principle by which States assert criminal jurisdiction over perpetrators of a crime committed outside the prosecuting States boundaries, where neither the perpetrators nor the victims are citizens of the prosecuting State, and where there need be no ties between the perpetrators and the prosecuting States. Such universal criminal jurisdiction is based on the notion that the crime committed is of such a degree of severity that any State should be authorized to punish the perpetrators. The UNCLOS piracy regime is jurisdictional in nature such that it confers upon all signatory States the requisite jurisdiction to take action on any pirate ship or ships taken by pirates on the high seas. The jurisdiction granted by UNCLOS provides the State party with the powers to search and seize the ship and cargo; to arrest, prosecute and punish offenders regardless of their nationality, and to dispose of the ship and property seized. 7 It must be noted that though the power to arrest, prosecute and punish offenders is provided by the UNCLOS, it does not carry with it an obligation that the States must prosecute and punish the offenders.
5

Article 92(1), United Nations Convention on the Law of the Sea, Signed 10 December 1982 at Montego Bay, Jamaica. Article 100, United Nations Convention on the Law of the Sea, Signed 10 December 1982 at Montego Bay, Jamaica. Jos Luis Jesus, Foreword, [2010] 59 Am. U.L Rev, 1214-1215.

History of Customary International Law on Piracy Piracy has been in existence for as long as trade by sea has, with a pirate having been treated as hostis humani generis an enemy of all mankind and is beyond legal protection of any nation. It has always been accepted as custom that any nation that apprehends a pirate, will be able to prosecute him without jurisdictional barriers. There are two key reasons for such a custom. Firstly that pirates choose their victims merely on the maritime route that they travel, and secondly that their acts of piracy are not sanctioned by the nations that the pirates are citizens of.
9 8

UNCLOS Articles 100 107 The present international law provisions on piracy are found in Article 100 to Article 107 of UNCLOS, exhibited at Annex II. These provisions provide a jurisdictional regime allowing States to arrest pirates, seize their vessels and cargo and to prosecute them in the States domestic judicial system without violating principles of personal, territorial or subject-matter jurisdiction. The provisions of UNCLOS on piracy cover the high seas, and by virtue of Article 58(2) of UNCLOS, extend to the Exclusive Economic Zones (EEZs) of coastal States. Limitations of UNCLOS Provisions The purpose of defining Piracy in the UNCLOS is to spell out the imminent situation of danger that must exist against a ship before the exclusive jurisdiction of the flag State over the vessel may be overridden. While this, as stated above, signals a recognition that piracy is unanimously offensive, and ought to be a crime of universal jurisdiction, the UNCLOS stops short of pronouncing it to be such a crime and creating a universally applicable penalty for such a crime. A basic principle of criminal law Nullum crimen, nullum poena sine praevia lege poenali leads to the understanding, here, that for piracy to be recognised as an international crime formally, there must be an existing legal provision declaring it to be an international penal offence and contain the specific penalty to be imposed. Without the statement of such an international crime of piracy and universally applicable penalty, it falls to the law of the State apprehending pirates to penalise them. The second problem arises out of the manner in which piracy is defined by requiring there to be an act committed by the crew or passengers of one ship, on persons or property onboard another ship, or the
8

Lassa Francis Lawrence Oppenheim, International Law: A Treatise. (First published 1905, Cornell University Library 2009).

Eugene Kontorovich, Piracy and International law, (Global Law Forum: Jerusalem Center for Public Affairs, 08 Feb 2009), <http://www.globallawforum.org/ViewPublication.aspx?ArticleId=96>, Accessed 25 May 2011.

other ship itself. There must be two ships present. As such, acts committed by the crew of a ship on the passengers or property of the same ship are not considered piratical for the purposes of UNCLOS. Neither is the situation where pirates are stowaways onboard the same ship covered by the piracy definition in Article 101 of UNCLOS. Where the act occurs when the vessel is in territorial seas, archipelagic waters or internal waters, the UNCLOS regime ceases to operate, and it is left to the State to define the relevant law. The obligation in Article 100 of UNCLOS to cooperate to the fullest possible extent in the repression of piracy is limited to areas outside the States waters. This obligation is not expressly extended to within territorial waters and does not require cooperation in criminalizing piracy within territorial waters, enforcing such laws, or prosecuting and punishing offenders. Aside from the issue noted above that international law has stopped short of stating piracy to be an international crime, there is no international court with the mandate to hear cases of piracy offences. There is also no single international law under which offenders would be prosecuted and punished; it is left to the domestic law of the arresting State to do so. As such, States may define piracy differently, with different acts being deemed piratical and set out different punishments under the relevant laws.

PIRACY IN SOUTH E AST ASIA & THE INDIAN SUB-CONTINENT

Table 1: Incidences of Piracy and Armed Robbery in Southeast Asia and the Indian Subcontinent Actual Incidents Year Attempts Total of all Incidences Percentage Change from Previous Year 200510 2006 2007 2008 2009 2010
10 11 12 13 14

Cat 1

Cat 2

Cat 3

Total

7 3 5 4 4 4

34 38 14 21 31 59

76 59 57 58 46 70

117 100 77 83 81 133

31 35 23 13 20 31

148 135 100 96 101 164

26% 8.8% 25.9% 4.0% 5.2% 62.4%

11 12 13 14 15

ReCAAP, ISC Annual Report 2007, p 23/42 ReCAAP, ISC Annual Report 2007, p 23/42 ReCAAP, ISC Annual Report 2007, p 23/42 ReCAAP, ISC Annual Report 2008, p 9 ReCAAP, ISC Annual Report 2009, p 8-15

Table 2: Piratical Incidences by Region 2005 2006 2007 2008 2009 2010

Year South Asia Southeast Asia Total

Actual Attempts Actual Attempts Actual Attempts Actual Attempts Actual Attempts Actual Attempts

27

34

15

22

20

23

34

10

86 117

24 31

65 100

20 35

55 77

18 23

63 83

10 13

58 82

14 20

98 133

21 31

The ReCAAP Agreement came into force on the 6th of September 2006 and annual reports on incidents of piracy, as defined in UNCLOS, and armed robbery against ships, as defined in the IMO Assembly Resolution A.1025(26), in the Asia have been published since 2007. ReCAAP ISC has taken care to realise that not all incidents are the same, and thus categorises incidents into three categories by their severity. Factors looked at in such categorisation are the intensity of violence utilised in incidents, which is seen from the weapons used by assailants, the number of assailants involved and how the assailants treat the crew, and the type of property that is seized in the attack. In this manner, very significant incidents are classified as Category 1, moderately significant incidents are classified as Category 2 and less significant incidents are classified as Category 3. 2010 The year 2010 saw the highest number of incidences in the region since the ReCAAP agreement coming into force in 2006, with a 60% increase in the total incidences from the previous year. Increases of incidents were particularly seen in the areas of the Arabian Sea, the waters off Malaysia, excluding the Malacca Straits, the waters off Indonesia, the waters off Vietnam and in the South China Sea. ReCAAP ISC also noted that all the incidents in the Arabian Sea could be attributed to the East African pirates, who took a distinct approach compared to the Southeast Asian pirates. Incidents in Southeast Asia tended to be opportunistic and non-violent, with a small number of pirates armed with knives and less dangerous weapons and escaping when seen rather than taking the victim ship and crew hostage. While guns were brought onboard in attacks, no shots were reported to have been fired. Their targets were unsecured goods onboard the vessels and spare parts rather than the vessel itself. On the other hand, incidents in the Arabian Sea showed great similarity to the incidents off the coast of Somalia. Thee incidences occurred between October and December 2010, when the Arabian Sea experiences good weather. The pirates involved in attacks here were markedly bolder than their counterparts in Southeast Asia, using more sophisticated weaponry, such as Rocket Propelled Grenades
15

ReCAAP, ISC Annual Report 2010, p 8-29

to maim vessels, and hijacking vessels, holding the crew hostage and using them as human shields if confronted by law enforcement. Of the five actual incidents in the Arabian Sea in 2010, one was classified as a Category 1 incident and the other four were Category 2 incidences. 16 The seriousness of these incidences has prompted the Indian Coast Guard, which is the ReCAAP Focal Point, to increase patrols in the Indian EEZ, and the Indian Navy to install a multi-ship coordinated anti-piracy force in the eastern Arabian Sea. 2009 There were 101 incidences of piracy and armed robbery in South and Southeast Asia in 2009. Although there was a small increase of about 5% from the previous year, there was in fact a 25% decrease in incidences since 2006, when the ReCAAP Agreement came into force, despite the statistics of 2009 covering a greater area than the statistics of 2006. It is also notable that the increase in total incidences in 2009 arose from an increase in attempted piracy and armed robbery incidences. The fact that there was no corresponding increase in actual attacks can be attributed to the increased patrols in the region and a greater awareness of, and vigilance against, pirates and armed robbers by ship masters and crew. Improvement was particularly seen at the ports of Indonesia where there were a total of 19 armed robbery incidences in 2009 as compared to 72 such incidences in 2005.17 There was also an overall decrease in Category 3 incidences by almost 40% between 2009 and 2005. The number of Category 2 incidences remained generally the same while the number of Category 1 incidences halved during this same time period. Looking at the type of vessels that were attacked, while bulk carriers were the vessels most commonly involved in incidences in 2005 and 2006, tankers more commonly fell victim to pirates and armed robbers from 2007. This may be due to the efforts of Coast Guard and Naval forces to escort bulk carriers with valuable cargo though areas where pirates were known to be found.

The Factors contributing to the growth, existence & resurgence of Piracy Piracy is seen to be an illegal act with personal economic gain as its primary goal.18 The threat and degree of violence involved in an attack is seen to have a direct relationship with risk and the potential return to the pirates. Where there is more to gain financially, the pirates are more likely to resort to violent means. It also appears that there is more likely to be a higher degree of organisation and coordination involved in the attacks, and greater capital spent on securing high-speed boats and arms, where there are more potential returns.
16 17 18

ReCAAP, ISC Annual Report 2010, p 13-15 ReCAAP, ISC Annual Report 2009, p10 Natoline Ronzitte, The Law of the Sea and the Use of Force against Terrorist Activities in Natoline Ronzitti (ed), Maritime Terrorism and International Law, (Dordrecht 1990).

The primary economic goal of piracy also sheds light on the cause that is of the most direct influence poor economic conditions. With widespread poverty and unemployment, people are more likely to turn to illegal means of economic gain. While in cities and urban areas, such a situation can result in higher levels of thievery and burglary, in coastal areas this situation translates to an increased threat of piracy. Such a trend was observed in between 1997 and 1998 in Indonesia, when the nations economy was heavily affected by the Asian Financial Crisis, and piracy off Indonesian waters surged by 500% in 1998 from the pre-crisis year of 199319. A similar trend is presently seen off the water of Somalia and in the Gulf of Aden, where many Somalis are reported to turn to piracy as potential returns are close to 157 times the national average salary.20 Economic concerns in a nation can also manifest in an overstretched government budget and a lack of financial resources for the coastal law enforcement agencies to police against pirate attacks on vessels passing through territorial waters. Another factor that encourages piracy is the geography and ecology of the nation. Where there are numerous islands and vast coastlines, pirates may find it easy to take cover in bays and lagoons or, in the tropics and sub-tropics, to take cover in shoreline mangroves. Pirates are able to easily abscond in this manner due to the fact that the majority of pirates work out of small watercrafts and motor-boats with high speed capabilities, and many are people who are familiar with the particular coast and its nooks and crannies. The last factor that contributes to piracy is the increase in container ships and bulk carriers in the region. Container ship traffic in the region has increased by 13.3% between 2005 and 2006 alone. Bulk Carriers in the region also increased by about 8.5% between the same two years.
21

These large vessels are

generally slow moving and manned by the minimum number of persons to crew the vessel. This makes container ships and bulk carriers easy targets for pirates to board and take over. Aside from pillage and hostage taking of the crew or the hijacking of the vessel, there arises out of this also a threat of environmental damage that may occur while the vessel goes unmanned.

Regional Efforts Against Piracy With the definition of piracy only covering attacks that occur in international waters, there must be a dual system of enforcement of anti-piracy measures a national system to deal with piratical attacks in national waters, usually referred to as armed robbery, and a cooperative international system to deal with
19

Gerard Graham Ong-Webb, Piracy in Maritime Asia: Current Trends in Peter Lehr (ed.), Violence at Sea: Piracy in the Age of Global Terrorism (Routledge, 2007). Deena Kamel Yousef, The Spoils of Piracy, Gulf News, (Dubai: 08 May 2011). Walter Samuel Grono Bateman, Joshua Ho & Mathew Mathai, Shipping Patterns in the Malacca and Singapore Straits: An Assessment of the Risks to Different Types of Vessels, Contemporary Southeast Asia: A Journal of International and Strategic Affairs , Volume 29, Number 2, August 2007, pp. 309-332.

20 21

10

attacks in international waters. It is the latter particular to Southeast Asian waters and water of the Indian Subcontinent that will be addressed in this section. The two general forms of cooperative systems are bilateral and multilateral. Bilateral anti-piracy cooperation efforts in the region include the Indonesia-Singapore Coordinated Patrols and the MalaysiaIndonesia Coordinated Patrols, both established in 1992, to patrol the Straits of Singapore and the Malacca Straits respectively, a cooperative effort to patrol waters by Malaysia and Thailand in the northern Malacca Straits since 2003, a cooperative effort to patrol waters by Indonesia and India in the Six Degree Channel, west of the Malacca Straits since 2004 and Project SUPRIC, set up by Singapore and Indonesia to monitor traffic through the Straits of Singapore by way of surface pictures. One of the first multilateral efforts in the region was in 2002 when the ten member states of the Association of Southeast Asian Nations (ASEAN) concluded an agreement to cooperate in the elimination of piracy in the region. This agreement involves information sharing strategies, the study of piratical trends, cooperation with UN agencies, the IMO and the IMB, and training efforts. This agreement was furthered in 2003 through the signing of the Bali Accord II, where it was agreed that maritime issues, including piracy, was of a trans-boundary nature, and was to be addressed in a holistic, integrated and comprehensive manner22. In 2003 the ASEAN Regional Forum adopted the Statement on Cooperation against Piracy and Other Threats to Maritime Security which included the commitment of participant nations to become party to the SUA Convention and its protocols. However, to date the ASEAN States of The Lao Peoples Democratic Republic and the Kingdom of Thailand are not party to this convention. While the rest of the ReCAAP States are party to the 1988 SUA Convention and Protocol, only the Kingdom of the Netherlands has become party to the 2005 SUA Convention and Protocol23. Two other key multilateral initiatives in the region are the Malacca Straits Trilateral Coordinated Patrols and the Eyes in the Sky Plan. The Trilateral Coordinated Patrols initiative, involving Indonesia, Malaysia and Singapore started off as an alternative to the United States Pacific Commands then-proposed Regional Maritime Security Initiative, with Malaysia and Indonesia being opposed to extra-regional nations conducting maritime patrols in the region. Patrols by Indonesian, Malaysian and Singaporean navies or maritime police under this trilateral initiative patrol their own waters in a co-ordinated manner around the clock. The initiative employs and hand off mechanism for inter-boundary enforcement to avoid jurisdictional problems from arising.

22

Joshua Ho, The Security of Sea-lanes in Southeast Asia, (July/August 2006), Asian Survey Vol. XLVI, No 4, 558574. International Maritime Organisation, Status of Conventions: Table showing ratifications by Country, <http://www.imo.org/About/Conventions/StatusOfConventions/Documents/status-x.xls>, Accessed 11 June 2011.

23

11

Under the Eyes in the Sky Plan, Indonesia, Malaysia, Singapore and Thailand have agreed to conduct aerial patrols over the regions waters to supplement marine patrols. Maritime patrol aircraft are allowed to fly for up to three nautical miles into territorial airspace of any of the participant States under the Plan and this allows for greater oversight of traffic and potential pirate attacks in the region. In 1999, Panama registered and Japanese owned vessel M/V Alondra Rainbow was attacked and hijacked by pirates while passing through the Straits of Malacca. Her crew were put on-board another vessel and later set adrift in open sea in a lifeboat for eleven days. The Alondro Rainbow disappeared along with her cargo for four weeks till she was detained by the Indian Navy and found to be repainted, renamed and flying the flag of Belize. Incidents such as this were of great concern to the Japanese government, not merely for economic reasons, but also because at times these piratical incidents of armed robbery, hijack and kidnap for ransom also led to loss of life. The resources that the pirates had to be able to hijack a cargo vessel, dispose of the cargo, and to repaint and reflag the vessel within a relatively short period of time made it obvious that left unchecked, could lead to more such incidents or to maritime terrorist acts through similar methods. These grave concerns led Japan to organise the Asia Anti-Piracy Challenge Conference in March of 2000. Two documents resulted from this conference the Tokyo Appeal and the Tokyo model Action Plan. The Tokyo Appeal contained the resolution of signatory parties to establish a comprehensive intergovernmental information network and to implement all measures possible to combat piracy and armed robbery. The Model Action Plan contained a list of actions to be taken by the governments of signatory States to facilitate immediate and post-incident reporting by vessels and for the private sector to improve self-protection measures. These two documents laid the foundation for the adoption of the ReCAAP Agreement.

REGIONAL COOPERATIVE AGREEMENT

AGAINST

PIRACY

AND

ARMED ROBBERY

IN

ASIA

(RECAAP) AND THE INFORMATION SHARING C ENTRE (ISC)

What is ReCAAP? ReCAAP holds great significant for the Asian region as it is the first government to government agreement to cooperate in efforts, as a region, against piracy and armed robbery. The ReCAAP Agreement was negotiated and finalised on 11 November 2004, by the ten ASEAN States, China, Japan, South Korea, Bangladesh, Sri Lanka and India.

12

Following the domestic completion of ratification of the treaty & ten signatory States depositing their Instrument of Notification with the depository, the ReCAAP Agreement came into force on the 4 th of September 2006. To date, there are seventeen States party to the ReCAAP Agreement - Peoples Republic of Bangladesh, Brunei Darussalam, the Kingdom of Cambodia, the Peoples Republic of China, the Kingdom of Denmark, the Republic of India, Japan, the Republic of Korea, the Lao Peoples Democratic Republic, the Republic of the Union of Myanmar, the Kingdom of the Netherlands, the Kingdom of Norway, the Republic of the Philippines, the Republic of Singapore, the Democratic Socialist Republic of Sri Lanka, the Kingdom of Thailand and the Socialist Republic of Viet Nam. The general obligation under the ReCAAP Agreement is to implement methods against piracy and armed robbery. The Agreement also outlines the manner in which information is to be shared between member States, to enhance operational cooperation in incident responses and taking on preventative measures. The manner in which incident reports are intended to occur under the ReCAAP Agreement is depicted by a flow chart below24:

24

ReCAAP, ISC Annual Report 2009, P 55.

13

The ReCAAP Agreement furthermore establishes an international organisation known as the Information Sharing Centre, an information sharing platform with focal points connected by a web-based secure network. The ISC is located in Singapore and was launched following the ReCAAP Agreement coming into force, on the 29th of November 2006. The ReCAAP Agreement has three aims in mind: i. ii. iii. The sharing of information between member States; The building of capacity through the sharing of best practices in combating piracy and armed robbery; and The participation in cooperative arrangements with other organisations of similar objectives so as to improve the ability of member States to deal with maritime incidents. Among the functions of the ISC is intended are the following25: i. ii. To serve as a platform for information exchange among focal points via the Information Network System; To facilitate communications and the exchange of information between participating governments in order to improve incident response by member States; iii. To analyse and provide accurate statistics of the incidences of piracy and armed robbery so as to foster better understanding of the situation in Asia; iv. To facilitate capacity building efforts that would help improve the capability of member States in combating piracy and armed robbery in the region; and v. To facilitate cooperative efforts with organisations and parties with similar aims, in joint exercises, information sharing, capacity building programme, or other appropriate forms of cooperation, and to facilitate the participation of member States in this regard. The ReCAAP Agreement in Part II sets out the ISC as being composed of a Governing Council and a Secretariat. The Governing Council, made up of one representative from each of the member States, is tasked with the creation of all policies to do with the ISC and is to adopt its own rules of procedure26. However, the Council is required to make all decisions by consensus27. Funding for the ISC is generally financed by the host State, which has included the cost of the premises, start-up costs, the cost of developing, setting up the secure, web-based Information Network System, and by voluntary contributions from member States.

25 26 27

Article 7, Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia. Article 4(5), Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia. Article 4(6), Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia.

14

Have ReCAAP & ReCAAP ISC been successful? When assessing if anti-piracy measures are effective, the natural yardstick would the number of piratical attacks that have occurred since the measures being brought into effect. Between 2005 and 2008, piratical attacks in the region dropped by an overall 35%. Though there has been an increase in 2009 and 2010,as indicated above, this has been due to an increase in the area that is taken into account and the foray of East African pirates into the Arabian Sea closer to the Indian subcontinent. In the close to five years since the ReCAAP Agreement has come into force, participation by States has increased considerably, both in the number of nations participating and the willingness to cooperate with each other for a common goal. Measures adopted appear to have been having a dual effect in dampening piratical attempts and attacks and bolstering cooperative efforts and confidence in safe maritime passage in the region. As such, the ReCAAP Agreement and ISC do appear to have been enjoying success, or at least be on the path of success in their aims, in their endeavours.

The factors leading to the success One of the factors that has led to the drop in the absolute number of piracy and armed robbery cases is that various nations come together under the ReCAAP Agreement to work together with a cooperative, holistic approach, for a common cause. The nations who have signed up to the Agreement are committed to cooperating with each other to combat piracy. They have appointed Focal Points that are effective in carrying out their duties and have pledged their security forces to assist ships of any flag in need. Information sharing is carried out by the ReCAAP ISC and all information collected is distributed to all member States. The capacity building program also enables member States with more sophisticated antipiracy methods and resources to share these with States that are yet developing their methodologies and assist them in such advancement. The second factor that has been of great benefit to the ReCAAP States is the capacity building initiatives that are undertaken under the Agreement. These initiatives allow for nations that are more experienced to share their experiences with nations that are newer to the cooperative anti-piracy regime. The information sharing mechanism that the ReCAAP ISC employs also allows for all the ReCAAP States to be provided with the same information on piracy and armed robbery in the region such that they can take appropriate measure to protect their vessels. The third strength of the ReCAAP Agreement is that fact that while it is an inter-governmental cooperative agreement, it recognises that participation from international organisations and the private sector is absolutely essential to combat piracy in Southeast Asia and the Indian Sub-continent. By involving the private sector in training exercises and information sharing, the ReCAAP States ensure that there is horizontal information sharing rather than merely vertical information sharing. Information sharing with

15

international organisations such as IMO and IMB also ensures that the ReCAAP States do not merely keep their know-how and experiences to themselves and have the opportunity to learn from the experiences of non-ReCAAP member States. Other factors that have assisted in the work of ReCAAP come from the relative political and economic stability that the region has enjoyed over the last five years. Economic progress has enabled people to obtain better education, and find jobs and these in turn, have reduced the necessity of turning to unlawful means to earn income. Political stability in the region has allowed resources to be allotted to maritime law enforcement agencies and for these agencies to carry out their duties with continuity. It must be noted however, that the work of the ReCAAP nations in cooperation is also seen to be limited due to the lack of participation from two of the regions largest nations Indonesia and Malaysia. Both nations have seen piracy as a purely domestic issue, to be dealt with by a nations own laws and enforcement policies and without external assistance. With financial and manpower resources that could only stretch so far, these nations preferred to place importance on maritime issues such as maritime smuggling, illegal fishing, and illegal immigration, rather than tackle piracy. While it can be said that it was only after the United States raised the idea of increasing marine patrols by the US Pacific Command in the region that the Malacca Straits Trilateral Coordinated Patrols and the Eyes in the Sky Plan took effect, it must be noted that the catalyst does not reduce the importance of the fact that Malaysia and Indonesia is more willing to cooperate with its neighbour nations in fighting marine piracy since 2004. It must still be noted that the two nations are reluctant to participate in ReCAAPs efforts. Part of the reason for this may be the worry that by so participating, they may come under increased political pressure, particularly from non-regional ReCAAP member States, to give up some sovereignty in order to achieve the greater good of eradicating piracy in Southeast Asian and South Asian waters. While it may take more time before Malaysia and Indonesia are willing to ratify and commit to the ReCAAP Agreement, for the time being it will be for nations that partner with Malaysia and Indonesia under other agreements to put to good use any information that may be availed to them. A second limitation to the work of ReCAAP stems from the limited functions of the ISC. Presently, the ISCs primary role is that of co-ordinating and seeing to the effective exchange of information that comes to it. Vessels that encounter piratical incidents do not report the event directly to the ReCAAP ISC. Radio reports of incidents are made by a victim ship to the IMB and the Rescue Coordinating Centre (RCC) of the nearest costal State. It is the RCC in turn that sends an immediate incident report to the ReCAAP ISC, through the designated ReCAAP Focal Point. The ReCAAP ISC passes on information on piratical incidents to the IMO and disseminates immediate, follow up and progress reports between the ReCAAP Focal points. However, the immediate security concerns of the victim ship are attended to by the RCC of the RCCs and security forces of coastal States.

16

It has been suggested that this be overcome by empowering the ISC with an operations coordination role in addition to its information coordination role. By requiring victim vessels to make immediate incident reports to the ReCAAP ISC could allow for a faster dissemination of information to other ReCAAP States. In turn this would allow them to send assistance to the victim vessel based on proximity, rather than merely relying on the security forces of the coastal States. This process could be sped up yet by allowing the ReCAAP ISC to be alerted to incidents by the Global Maritime Distress Safety System that all merchant vessels are required to follow under the International Convention for the Safety of Life at Sea (SOLAS Convention). As a relatively young organisation, the ReCAAP ISC remains malleable enough to take on new roles and operations. ReCAAP States have shown themselves to be willing to put aside differences to work for a common cause and this in itself is a mark of success for ReCAAP. The competence that this international organisation has achieved thus far is seen from the ReCAAP ISC having received praise from the IMO as being a good example of successful regional cooperation28, in its message for World Maritime Day 2011.

The Challenges in utilising a similar model against Piracy elsewhere One of the most troubling regions for piracy and armed robbery in the present day is undeniably the Gulf of Aden and the waters off the coast of Somalia. As of the 13 of June 2011, the IMBs Piracy Reporting Centre reports that of the 243 piracy and armed robbery incidents worldwide, 154 of these have occurred off the coast of Somalia, and recommendations to keep clear of the Somali coast by 200 miles are thwarted by the use of pirate mother ships 29. The factors that have contributed to the rise in piracy in this region is not different from those which led to the growth of piracy and armed robbery in the past in Asia a lack of stable governmental and law enforcement capabilities, economic difficulties and an ease of access to arms. Political instability that has existed since the Somali central government came apart in the early 1990s. Like the situation that existed in Southeast Asia and the Indian subcontinent, without effective government and maritime law enforcement, pirates have found safe harbours in Somalia to allow them to hijack vessels, kidnap crew and hold these for ransom with without difficulty. When this was the situation in Asia, the nations of the region, such as the ASEAN States, came together to push for stability and cooperation in maintaining security. Unfortunately, wars that have troubled African nations for many centuries has led to great deal of distrust and neighbouring nations are not able
28

United Nations, World Maritime Day - Background <http://www.un.org/en/events/maritimeday/background.shtml>, Accessed 14 June 2011. The Most Dangerous Seas in the World, The Economist, (17 July 2008)

29

17

to collaborate to secure peace and stability in the seas off the African coast. While at present time there is a United Nations supported international fleet of vessels composed of ships from 28 countries patrolling the Somali waters30, it must fall to African nations to keep waters off their coast safe in order to promote themselves as economies worth investing in and enable merchant vessels to pass through without fear When the African region develops in mutual trust and cooperation, the nations would also have to develop their military strength and law enforcement capabilities. Economic progress must also essentially be present in order to persuade the people to pursue financial gain through legal means and to keep them from taking up arms and taking to piracy and armed robbery. For these reasons, it would, for the present time, seem difficult, if not impossible, for the African states to replicate the success of the ReCAAP States in their region. Without the cooperative nature that has been seen in the Asian region, through various plans and undertakings, the African nations will not be able to combat piracy in the manner that Asia has been able to.

CONCLUSION
Piracy is recognised as an international, trans-border threat to maritime trade and travel, with vessels and people equally at risk and the potential to provide conducive circumstances for maritime terrorism. This paper has sought to provide an overview of the piracy problem in Southeast Asia and the Indian subcontinent. It has also looked at the various solutions that the nations of the region have employed to control the problem, particularly the ReCAAP Agreement, in order to assess if a similar mechanism can be employed in other regions where pirates and armed robbers enjoy free reign over the seas. With its cooperative nature its greatest strength, the ReCAAP Agreement had seen an increase in nations signing on, participative measures and through these, the area that it takes into consideration. While it seems to have been effective in achieving its aims, the participation of Malaysia and Indonesia would enhance its standing in the region and would enable piracy numbers to be brought down through regional cooperation more effectively. The ReCAAP ISC also has great potential to take on an operational role alongside its information-collection capacity, so as to allow for assistance to be sent to ships under attack from pirate or armed robbers at the soonest. The ReCAAP Agreement has done well in Southeast Asia and the Indian subcontinent due to the factors of economic growth, political stability and military strength having come together in a manner that has allowed for trust between partnering nations to share sensitive information of strategies to combat piracy and armed robbery in the region and to assist vessels in need without differentiating by their flag states.
30

James

A.

Baker

III

Institute

for

Public

Policy,

Maritime

piracy:

Is

there

silver

lining?

<http://blog.chron.com/bakerblog/2011/05/maritime-piracy-is-there-a-silver-lining/>, Accessed 14 June 2011.

18

Replicating the ReCAAP Agreement elsewhere would need similar factors to be present to allow a similar agreement to flourish and for piracy is that region to be checked. If such factors are not present, to institute a similar agreement may be counter-productive in that a collaboration between nations that does not produce similar success could point to weaknesses that pirates could exploit and in turn lead to a loss of credibility to the nations that come together in such an endeavour.

19

APPEN

20

DIX

21

APPENDIX II
Article100
Duty to cooperate in the repression of piracy All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.

Article101 Definition of piracy Piracy consists of any of the following acts: (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).

Article102 Piracy by a warship, government ship or government aircraft whose crew has mutinied The acts of piracy, as defined in article 101, committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft.

Article103 Definition of a pirate ship or aircraft

A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in article 101. The same applies if the ship or aircraft has been used to commit any such act, so long as it remains under the control of the persons guilty of that act.

22

Article104 Retention or loss of the nationality of a pirate ship or aircraft A ship or aircraft may retain its nationality although it has become a pirate ship or aircraft. The retention or loss of nationality is determined by the law of the State from which such nationality was derived.

Article105 Seizure of a pirate ship or aircraft On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

Article106 Liability for seizure without adequate grounds Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

Article107

Ships and aircraft which are entitled to seize on account of piracy

A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

23

BIBLIOGRAPHY
International Conventions Convention on the High Seas [1958], I-6465 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation [1988], I29004 United Nations Convention on the Law of the Sea [1982], I-31363

Regional Agreements Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia, Available at http://cil.nus.edu.sg/2004/2004-regional-cooperation-agreement-on-combating-piracy-and-armedrobbery-against-ships-in-asia/

Books Lassa Francis Lawrence Oppenheim, International Law: A Treatise. (First published 1905, Cornell University Library 2009).

Contributions to Edited Books Gerard Graham Ong-Webb, Piracy in Maritime Asia: Current Trends in Peter Lehr (ed.), Violence at Sea: Piracy in the Age of Global Terrorism (Routledge, 2007). Natoline Ronzitte, The Law of the Sea and the Use of Force against Terrorist Activities in Natoline Ronzitti (ed), Maritime Terrorism and International Law, (Dordrecht 1990).

Journals Dana R Dillon, Maritime Piracy: Defining the Problem, [Winter-Spring 2005] SAIS Review, Volume 25, Number 1, 155-165. Jos Luis Jesus, Foreword, [2010] 59 Am. U.L Rev, 1214-1215. Joshua Ho, The Security of Sea-lanes in Southeast Asia, (July/August 2006), Asian Survey Vol. XLVI, No 4, 558-574. Walter Samuel Grono Bateman, Joshua Ho & Mathew Mathai, Shipping Patterns in the Malacca and Singapore Straits: An Assessment of the Risks to Different Types of Vessels, Contemporary Southeast Asia: A Journal of International and Strategic Affairs , Volume 29, Number 2, August 2007, pp. 309-332.

24

Newspaper Articles The Most Dangerous Seas in the World, The Economist, (17 July 2008) Deena Kamel Yousef, The Spoils of Piracy, Gulf News, (Dubai: 08 May 2011)

Online Resources Eugene Kontorovich, Piracy and International law, (Global Law Forum: Jerusalem Center for Public Affairs, 08 Feb 2009), <http://www.globallawforum.org/ViewPublication.aspx?ArticleId=96>, Accessed 25 May 2011. International Maritime Organisation, Status of Conventions: Table showing ratifications by Country, <http://www.imo.org/About/Conventions/StatusOfConventions/Documents/status-x.xls>, Accessed 11 June 2011. James A. Baker III Institute for Public Policy, Maritime piracy: Is there a silver lining? <http://blog.chron.com/bakerblog/2011/05/maritime-piracy-is-there-a-silver-lining/>, Accessed 14 June 2011. Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia, Information Sharing Centre Annual Report 2007, < http://www.recaap.org/DesktopModules/Bring2mind/DMX/Download.aspx?Command=Core_Download &EntryId=51&PortalId=0&TabId=78>, Accessed 14 April 2011. Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia, Information Sharing Centre Annual Report 2008, < http://www.recaap.org/DesktopModules/Bring2mind/DMX/Download.aspx?Command=Core_Download &EntryId=53&PortalId=0&TabId=78>, Accessed 14 April 2011. Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia, Information Sharing Centre Annual Report 2009, < http://www.recaap.org/DesktopModules/Bring2mind/DMX/Download.aspx?Command=Core_Download &EntryId=69&PortalId=0&TabId=78>, Accessed 14 April 2011. Regional Cooperation Agreement on Combating Piracy and Armed Robbery in Asia, Information Sharing Centre Annual Report 2010, < http://www.recaap.org/DesktopModules/Bring2mind/DMX/Download.aspx?Command=Core_Download &EntryId=81&PortalId=0&TabId=78>, Accessed 14 April 2011. United Nations, World Maritime Day - Background <http://www.un.org/en/events/maritimeday/background.shtml>, Accessed 14 June 2011.

25