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Legal Measures to Combat Piracy and Armed Robbery in the Horn of Africa and in Southeast Asia: A Comparison

2012; Taylor & Francis; Volume: 35; Issue: 7-8 Linguagem: Inglês

10.1080/1057610x.2012.684656

1521-0731

Tara Davenport,

Global Maritime and Colonial Histories

Abstract Somalia and Southeast Asia have, at different times, been considered “hotspots” for piracy and armed robbery against ships. Some scholars have argued that comparisons between the two regions are pointless due to the different geopolitical factors that affect the respective regions and vastly different tactics used by Somali pirates and Southeast Asian pirates. Further, the differences in geopolitical considerations and tactics have meant that the legal measures used to respond to attacks in these regions have also greatly differed. The purpose of this article is to critically examine and evaluate the legal measures taken to facilitate the arrest, prosecution and punishment of pirates in Somalia and Southeast Asia. It concludes that while the legal measures employed by the relevant stakeholders differ in each region, valuable lessons can be learned on how States, regional organizations and international organizations can strengthen legal frameworks for the effective arrest and prosecution of perpetrators of piracy and armed robbery. Notes 1. See International Maritime Bureau (hereafter referred to as IMB), Annual Report on Piracy and Armed Robbery Against Ships: 2010 (London: IMB, 2011), pp. 5–6. 2. This consists of waters in the Gulf of Thailand, Indonesia, Malaysia, Myanmar, Philippines, Singapore, South China Sea, Straits of Malacca and Singapore, Thailand, and Vietnam. Based on the classification adopted in the 2010 Annual Report of the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ship in Asia (ReCAAP) Information Sharing Centre (ISC) (2010), available at http://www.recaap.org/ (accessed 5 May 2011). 3. Ibid., p. 12. 4. Between 2004 and 2007, piracy and armed robbery in Southeast Asia declined by 50 percent. See Robert M. Farley and Yoav Gortzak “Fighting Piracy: Experiences in Southeast Asia and off the Horn of Africa,” Journal of Strategic Security (2009). Available at http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1033&context=jss at 1 (accessed 5 May 2011). 5. Stefan Eklof Amirell, “Piracy and its Suppression in the Strait of Malacca and the Gulf of Aden: A Critical Comparison,” Strategic Insights 3 (April 2010), p. 4. 6. General Siad Barre's regime was overthrown in 1991, after which, Somalia was plunged into civil war where warlords ruled over parcels of individual land: See BBC News, “Country Profile: Somalia,” available at http://news.bbc.co.uk/2/hi/africa/country profiles/1072592.sm (accessed 5 May 2011). 7. Alex Kingsbury, “Under President Obama, Will Failed States like Somalia Merit New Attention?” US News & World Report, 14 January 2009. 8. This consists of Brunei, Cambodia, Indonesia, Malaysia, Philippines, Singapore, Thailand, Vietnam, Myanmar, and China and Taiwan. 9. James Kraska and Brian Wilson, “The Pirates of the Gulf of Aden: The Coalition is the Strategy,” Stanford Journal of International Law 45(243) (2009), p. 250. 10. Ibid. 11. See Robert Beckman and Tara Davenport, “Enhancing Regional Cooperation on Piracy and Maritime Crimes.” Paper presented at the “International Conference on Cooperation in Dealing with Non-Traditional Security Issues in the South China Sea: Seeking More Effective Means,” National Institute for South China Sea Studies and the Lancashire Law School of the University of Central Lancashire, Haikou, China, 21–22 May 2010, pp. 1–2. Available at http://cil.nus.edu.sg/wp/wp-content/uploads/2010/08/Beckman_Piracy_Maritime_Crimes_Haikou_final.pdf (accessed 5 May 2011). 12. Due to space constraints, the examination of the legal issues undertaken in this article is not exhaustive. 13. Adopted in Montego Bay, Jamaica, on 10 December 1982, entered into force on 16 November 1994, 1833 UNTS, 397. 14. Adopted in Geneva on 29 April 1958, UNTS. 82. 15. The International Law Commission (“ILC”), which was entrusted with the codification of the law of the sea, considered the regime of the high seas at its second (1950), third (1951), fifth (1953), seventh (1955), and eighth (1956) sessions. The 1956 ILC Draft Articles on the Law of the Sea formed the basis of the 1958 High Seas Convention and UNCLOS. See Report of the International Law Commission to the General Assembly covering the work of its eight session, 23 April–4 July 1956, Yearbook of the International Law Commission, 1956, Volume II (1956 ILC Report). 16. “Research in International Law: Part IV—Piracy,” American Journal of International Law Spec. Supp., Part IV (1932), pp. 739–885. For a summary on the development on the law of piracy, see Alfred P. Rubin, “The Law of Piracy” Denver Journal of International Law and Policy 15(173) (1987). 17. See Status of UNCLOS, UN Treaty Collection, available at http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en#1 (accessed 5 May 2011). 18. See Status of UNCLOS, UN Treaty Collection, available at http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en (accessed 5 May 2011). 19. Based on the geographical regional grouping adopted by the UN. Available at http://millenniumindicators.un.org/unsd/methods/m49/m49regin.htm (accessed 30 April 2011). 20. See “Status of UNCLOS, UN Treaty Collection,” available at http://treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en (accessed 30 April 2011). 21. Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. See geographical grouping adopted by the UN, available at http://millenniumindicators.un.org/unsd/methods/m49/m49regin.htm (accessed 30 April 2011). 22. See “Status of UNCLOS, UN Treaty Collection.” 23. Ibid. 24. Article 101 of UNCLOS refers to acts on the high seas. Article 58 (2) provides that the provisions on piracy also apply in a state's exclusive economic zone (EEZ). 25. Article 105, UNCLOS. Piracy is one of a few international crimes that attract universal jurisdiction, which means all States can arrest offenders regardless of the nationality of the perpetrators, ship, victim, or cargo. In this sense piracy is treated as an exception to the traditional principle of exclusive flag state jurisdiction on the high seas as recognized by Article 92 of UNCLOS. 26. International Maritime Organization (here after referred to as IMO), Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships (London: IMO Assembly Resolution A. 1025 (26), 18 December 2009). 27. Robert Beckman, “Combating Piracy and Armed Robbery Against Ships in Southeast Asia: The Way Forward,” Ocean Development and International Law 33(317) (2002), p. 327. 28. For example, the 2010 Annual IMB Report only gives general piracy and armed robbery statistics based on the location but does not indicate whether it happened within the 12 nm territorial sea of States. It does, however, in the Section on “Narrations of Attacks,” either give the co-ordinates of where the attack occurred or the distance from the coast for each attack (actual or attempted): See IMB, Annual Report on Piracy and Armed Robbery Against Ships: 2010, supra note 1. 29. Matthew C. Houghton, “Walking the Plank: How UN Security Council Resolution 1816, While Progressive, Fails to Provide a Comprehensive Solution to Somali Piracy,” Tulsa Journal of Comparative and International Law 16(253) (2008–2009), p. 260. 30. “Piracy Off the Somali Coast: Workshop Commissioned by the Special Representative of the Secretary-General of the UN to Somalia Ambassador Ahedou Ould-Abdallah,” Final Report by the International Expert Group on Piracy off the Somali Coast, Nairobi, 21 November 2008, p. 31. 31. Houghton, “Walking the Plank,” p. 260. 32. “International Piracy on the High Seas,” Statement of RADM William Baumgartner on International Piracy on the High Seas before the Subcommittee on Coast Guard and Maritime Transportation, Committee on Transportation & Infrastructure, US House of Representatives, 4 February 2009, Coast Guard Journal, available at http://www.uscg.mil/cgjournal/message.asp?Id=118 (accessed 30 April 2011). 33. See Horizons (January 2011), available at http://www.rsis.edu.sg/research/maritime/Horizons1101.pdf 34. Lee A. Casey and David B. Rivkin, “Pirates Exploit Confusion about International Law,” Wall Street Journal, 19 November 2008. 35. James Kraska, “Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea,” Comparative Strategy 28(197) (2009), p. 203. 36. John I. Winn and Kevin H Govern, “Maritime Pirates, Sea Robbers and Terrorists: New Approaches to Emerging Threats,” Homeland Security Review 2(131) (2008), p. 141. See also Jon D. Pepetti, “Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats,” Naval Law Review 55(73) (2008), p. 111. 37. Winn and Govern, “Maritime Pirates, Sea Robbers and Terrorists.” 38. This will be dealt with below. 39. See, for instance, Marie Woolf, “Pirates Can Claim UK Asylum,” The Sunday Times (UK), 13 April 2008, available at http://www.timesonline.co.uk/tol/news/uk/article3736239.ece (accessed 30 April 2011). 40. Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, S/2011/30, 24 January 2011, p. 26. 41. Kraska, “Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea,” p. 209. 42. Examples of such countries include Germany, Kenya, the Russian Federation, and Spain: See Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, p. 23. 43. See Medvedyev v. France (Application no. 3394/03), European Court of Human Rights Grand Chamber, 29 March 2010. 44. Report of the Legal Committee on the Work of its 96th Session, Piracy: Review of National Legislation, IMO Document LEG 96/13, 14 October 2009. 45. Ibid. 46. This is aptly illustrated by the capture of 10 Somali pirates by the Danish vessel ABSALON in September 2008. The Danish government decided that it did not have jurisdiction to try the pirates as Danish law only provides for national criminal jurisdiction if the pirates are attacking a Danish ship or Danish citizens and had to release the pirates: See Wendy Zeldin, “Denmark: Dutch Requested to allow Danish Prosecution of Suspect Somali Pirates,” Global Legal Monitor (12 January 2009), available at http://www.loc.gov/lawweb/servlet/lloc_news?disp2_l20540915_Piracy (accessed 6 May 2011). 47. These are SCR 1816 (2 June 2008), SCR 1838) (7 October 2008), SCR 1844 (20 November 2008), SCR 1846 (2 December 2008), SCR 1851 (16 December 2008), SCR 1897 (30 November 2009), SCR 1918 (27 April 2010), SCR 1950 (23 November 2010), SCR 1976 (11 April 2011), all available at http://www.un.org/documents/scres.htm (accessed 5 May 2011). 48. The TFG is generally recognized by the international community as representing Somalia's government although not all members of the Security Council recognizes the TFG given the limited territory over which it exercises control: See J. Ashley Roach, “Countering Piracy Off Somalia: International Law and International Institutions,” American Journal of International Law 104(397) (2010), p. 401. 49. See, for example, SCR 1816, para 7 (a) and (b) available at http://www.un.org/documents/scres.htm (accessed 30 April 2011). 50. SCR 1851, para 6. 51. See Roach, “Countering Piracy Off Somalia,” p. 401. 52. Ibid. 53. See for example, Anna Mulrine “In the Battle Against Modern Day Pirates, the Pentagon Eyes its Role Warily,” US World News and World Report Online, 23 December 2008, available at http://www.usnews.com/news/world/articles/2008/12/23/in-the-battle-against-modern-day-pirates-the-pentagon-eyes-its-role-warily (accessed 6 May 2011). 54. See Paragraph 11 of SC Resolution 1816 (2 June 2008) and Paragraph 14 of SC Resolution 1846 (2 December 2008). 55. Douglas Guilfoyle, “Piracy off Somalia: UN SC Resolution 1816 and IMO Regional Counter-Piracy Efforts,” International and Comparative Law Quarterly 57(690) (2009), p. 696. 56. “Piracy and International Law,” Shipping and Trade Law 2 December 2008. 57. See Paragraph 3 of UN SC Resolution 1851 (16 December 2008). 58. See “Ship Riders: Tackling Somali Pirates at Sea,” available at http://www.unodc.org/unodc/en/frontpage/ship-riders-tackling-somali-pirates-at-sea.html (accessed 30 April 2011). 59. See comments of SR Subramanian in “Fighting the Somali Pirates: The Shipriders Agreement Breakthrough,” 29 January 2009 available at http://jurist.law.pitt.edu/forumy/2009/01/fighting-somali-pirates-shipriders.php(accessed 30 April 2011). 60. Only SCR 1851 (16 December 2008) and 1897 (30 November 2009) refer to them. 61. The Djibouti Code is based on the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (“ReCAAP”), which has been attributed with reducing piracy in Southeast Asia. 62. Kraska, “Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea,” p. 204. 63. Article 7(1), Djibouti Code. 64. Article 15 (a). The Djibouti Code was made non-binding due to concerns that it would take considerably longer to get national parliaments to support a binding agreement: See Guilfoyle, “Piracy off Somalia,” p. 698. 65. Kraska, “Coalition Strategy and the Pirates of the Gulf of Aden and the Red Sea,” p. 204. 66. Article 7 (4). Djibouti Code. 67. SCR 1851 (16 December 2008) available at http://www.un.org/documents/scres.htm 68. Final Communiqué of the 6th Plenary Session of the Contact Group on Piracy off the Coast of Somalia, New York, 10 June 2010, available at http://www.marad.dot.gov/documents/FINAL_COMMUNIQUE-Sixth_Plenary_Meeting_6-10-10.pdf (accessed 30 April 2011). 69. Roach, “Countering Piracy Off Somalia,” p. 413. 70. Final Communiqué of the 6th Plenary Session of the Contact Group on Piracy off the Coast of Somalia, p. 68. 71. See Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, p. 25. 72. Ibid. 73. Ibid, p. 20. 74. For example, it is said that the current piracy trials have joined the huge backlog of cases in Kenya's criminal justice system. Further, when an EU Delegation visited Kenya between March and April 2009 to assess Kenya's needs for the detention and trial of suspects, an amount of 1.74 million euros was said to be needed: See James Thuo Gathii, “Kenya's Piracy Prosecutions,” American Journal of International Law 14(416) (2010), p. 434 75. In June 2010, the UNODC announced that it would spend more than US$9.3 million to fund courts in Kenya and Seychelles for the prosecution of suspected Somali pirates: See Wendy Zeldin, “Kenya: Alleged Somali Pirates Acquitted for Lack of Evidence,” The Library of Congress Law Library, 12 November 2010, available at http://www.loc.gov/lawweb/servlet/lloc_news?disp3_2368_text (accessed 30 April 2011). 76. Ibid. 77. See Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, p. 26. 78. This is contained in proposal 25 of the Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia. 79. SCR 1976 (11 April 2011), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N11/295/44/PDF/N1129544.pdf?OpenElement 80. See Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, p. 39. 81. Ibid., p. 28. 82. Ibid., p. 39. 83. Ibid., p. 40. 84. Ibid. 85. Paragraph 5 of SC Resolution 1851 and paragraph 15 of SC Resolution 1846. 86. Paragraph 5 of SC Resolution 1851. 87. Roach, “Countering Piracy Off Somalia,” p. 408. 88. For example, in 2010, there were 82 incidents of armed robbery against involving ships at anchor and berth in Southeast Asia out of a total of 119 incidents: See the ReCAAP, Annual Report (2010), p. 31. 89. This consists of Brunei, Cambodia, Indonesia, Malaysia, Philippines, Singapore, Thailand, Vietnam, Myanmar, and China and Taiwan. 90. Scott Davidson, “Dangerous Waters: Combating Maritime Piracy in Asia,” Asian Yearbook of International Law 9(3) (2004), p. 21. 91. Ibid. This is particularly true of countries such as Indonesia, which has lacked the necessary resources to patrol its waters. 92. See Karsten von Hoesslin, “South East Asia's Dynamic Maritime Threat Environment,” Strategic Insights 30 (February 2011), p. 21. 93. Rosemary Collins and Daud Hassan, “Applications and Shortcomings of the Law of the Sea in Combating Piracy: A South East Asian Perspective,” Journal of Maritime Law and Commerce 40(1) (January 2009), p. 103. 94. See Hoesslin, “South East Asia's Dynamic Maritime Threat Environment,” p. 21. 95. Eric Barrios, “Casting a Wider Net: Addressing the Maritime Piracy Problem in Southeast Asia,” Boston College International and Comparative Law Review 28(149) (2005), p. 160. 96. “Malaysia to Make New Law to Fight Piracy,” Sify News, 24 March 2011, available at http://www.sify.com/news/malaysia-to-make-new-law-to-fight-piracy-news-international-ldymaffjbfe.html (accessed 30 April 2011). 97. Sari Aziz and Ranyta Yousran, “Indonesia's Country Report.” Working Paper for the Research Project on International Maritime Crimes undertaken by the Centre for International Law (CIL), available at http://cil.nus.edu.sg/wp/wp-content/uploads/2010/10/Country-Report-Indonesia.pdf (accessed 30 April 2011), p. 16. 98. See Section 130B of the Singapore Penal Code (Cap 224), Singapore Statutes Online, available at http://statutes.agc.gov.sg/ (accessed 5 May 2011). 99. The IMO has criticized national legislation, which simply makes reference to piracy as defined by the law of nations rather than defining all the elements of the offense of piracy as part of their criminal law. It has said that this generic approach may present obstacles for adequate prosecution and punishment in countries where criminal law requires as a condition for enforcement that all elements of any offense are described in detail in the legislation. See Secretariat of the Legal Committee of the IMO―Report of the Legal Committee on the Work of its Ninety-Sixth Session, LEG 96/3, 20 August 2009, Paragraph 7.2. 100. Zou Keyuan, “China's Country Report.” Working Paper for the Research Project on International Maritime Crimes undertaken by CIL available at http://cil.nus.edu.sg/wp/wp-content/uploads/2010/10/Country-Report-China.pdf (accessed 30 April 2011). 101. Nguyen Thi Lan Anh, “Vietnam's Country Report.” Working Paper for the Research Project on International Maritime Crimes undertaken by CIL, 11-12, available at http://cil.nus.edu.sg/wp/wp-content/uploads/2010/10/Country-Report-Viet-Nam.pdf (accessed 30 April 2011). 102. Joyce Dela Pena, “Maritime Crime in the Strait of Malacca: Balancing Regional and Extra-Regional Concerns,” Stanford Journal of International Relations 1(1) (Spring 2009), p. 5. 103. Robert M. Farley and Yoav Gortzak, “Fighting Piracy: Experiences in Southeast Asia and off the Horn of Africa,” Journal of Strategic Security (2009), p. 8, available at http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1033&context=jss&sei-redir=1#search=%22â%C2%80%C2%9CFighting+Piracy:+Experiences+in+Southeast+Asia+and+off+the+Horn+of+Africaâ%C2%80%C2%9D+Journal+of+Strategic+Security%22 (accessed 6 May 2011). 104. De La Pena, “Maritime Crime in the Strait of Malacca,” p. 7. 105. Farley and Gortzak, “Fighting Piracy,” pp. 8–9. 106. ReCAAP was adopted on 11 November 2004 and entered into force on 4 September 2006. 107. Neither Indonesia nor Malaysia is a party to ReCAAP, which arguably undermines its effectiveness. 108. See Mayla Ibanez, “ASEAN Measures in Combating Piracy and Other Maritime Crimes: A Proposal for Legal Cooperation,” unpublished, paper supplied to author. 109. “ASEAN Declaration on the Prevention and Control of Transnational Crime, 20 December 1997,” ASEAN Documents on Combating Transnational Crime and Terrorism: A Compilation of ASEAN Declarations, Joint Declarations, and Statements on Combating Transnational Crime and Terrorism (Jakarta: ASEAN Secretariat, June 2007). 110. Hanoi Declaration of 1998, 16 December 1998, available at http://www.aseansec.org/8752.htm (accessed 30 April 2011). 111. Ibid. 112. “ASEAN Security Community Plan,” available at http://www.aseansec.org/16826.htm (accessed 30 April 2011). 113. “Vientiane Action Programme,” available at http://www.aseansec.org/VAP-10th%20ASEAN%20Summit.pdf (accessed 30 April 2011). 114. “ASEAN Political-Security Community Blueprint,” available at http://www.aseansec.org/22337.pdf (accessed 30 April 2011). 115. See paragraph B.4.1 (xv) of the ASEAN Political-Security Community Blueprint. 116. The ALAWMM, composed of Justice and Law Ministers or Attorneys-Generals, was established in 1986. In 1993, it established the ASEAN Senior Law Officals Meeting (ASLOM). 117. “Joint Communique of the 6th ASEAN Law Ministers Meeting,” 19–20 September 2005 available at http://www.aseansec.org/17738.htm (accessed 30 April 2011). See also “Joint Communique of the 7th ASEAN Law Ministers Meeting,”20 October 2008, available at http://www.aseansec.org/22702.htm (accessed 30 April 2011). 118. Malaysia Attorney-General's Chambers Proposal for Model Law on Maritime Security, undated statement. 119. Ibanez, “ASEAN Measures in Combating Piracy and Other Maritime Crimes.” 120. Ibid. 121. See ASEAN Regional Forum, available at http://www.aseanregionalforum.org/AboutUs/tabid/57/Default.aspx (accessed 30 April 2011). 122. ARF Statement on Cooperation Against Piracy and Other Threats to Security, 17 June 2003, available at http://www.aseansec.org/14837.htm (accessed 30 April 2011). 123. Co-Chairs Summary Report, 1st ARF Inter-Sessional Meeting on Maritime Security, 5–6 March 2009, available at http://www.aseanregionalforum.org/LinkClick.aspx?fileticket=xJ1OCk2xCE0%3d&tabid=66&mid=1072 (accessed 30 April 2011). 124. Co-Chairs Summary Report, 2nd ARF Inter-Sessional Meeting on Maritime Security, 29–30 March 2010, available at http://www.aseanregionalforum.org/LinkClick.aspx?fileticket=Kk4f7yqIqAU%3d&tabid=66&mid=1106 (accessed 30 April 2011). 125. Indonesia, for example, insisted on including a statement in the UN SCR 1816 that operations by foreign naval warships in Somali territorial waters did not establish customary international law and was allowed because the TFG was consented: See Roach, “Countering Piracy Off Somalia,” p. 400.