9 Crackdown on piracy in the South China Sea and prospects for regional cooperation
Piracy at sea: a global concern
Piracy in the South China Sea is not new. It is recorded that as early as the 14th century, piracy had already existed in the waters of Southeast Asia.1 During Zheng He’s seven voyages to the Indian Ocean in the Ming Dynasty (1405–33), he undertook some actions to suppress pirates in the South China Sea and Southeast Asia for the purpose of keeping peace and bringing order in the region.2 In the late 20th century, the South China Sea was categorized as one of the most active piracy zones in the world. In mid-1992 the Singapore National Shipping Association (SNSA) listed seven key “pirate-prone areas” in Southeast Asia, and three of them were located in the South China Sea.3 Recently, piracy incidents increased considerably in the South China Sea. The figure in 2000 showed that piracy in the region accounted for 65 percent of the total worldwide number. The incidents in the South China Sea increased from 120 in 2001 to 140 in 2002.4
In fact, such incidents triggered a serious concern with potential increasing acts of piracy in Southeast Asia in general and in the South China Sea in particular. The most famous case in the South China Sea is the Petro Ranger case. This oil tanker mysteriously went missing in the South China Sea for several days and suddenly reappeared off the coast of Hainan Island. It was proven that the vessel was hijacked by a group of Indonesians in waters adjacent to Malaysia and Vietnam on 16 April 1998. The Chinese police arrested the hijackers on 26 April 1998. After the initial investigation, the Chinese public security authority let the vessel go and two days later released the crew.
The South China Sea is bounded on the north by China, on the east by the Philippine archipelago, on the south by Kalimantan including East Malaysia and Brunei, and on the west by the Malay Peninsular and Vietnam. The complicated topography and the vast size of the sea may encourage pirates to commit their crimes more frequently than in other regions and locations. It is acknowledged that effective law enforcement is extremely difficult in the South China Sea because of its vastness (more than 200nm wide) and due to the fact that it is dotted with numerous uninhabited islands to which pirates can retreat.5 It is said that the Natunas and Spratly island groups are pirate havens.6
The South China Sea is part of the “choke points” in the sea lanes of communications in the world. Shipping is of utmost importance to the world economy, carrying well over 90 percent of world trade.7 The security of navigation of vessels through these sea lanes is of vital interest for East Asian countries. More than half of the world’s merchant fleet capacity sails through the straits of Malacca, Sunda, and Lombok and the South China Sea.8 More than 10,000 vessels of greater than 10,000dwt move southward through the South China Sea annually, with well over 8,000 proceeding in the opposite direction.9 In addition, with the fast growth of the economy in East Asia, the recent trend to greater intra-Asian trade (relative to trade with Europe and North America) results in more shipping in the littoral waters of Southeast Asia and the South China Sea.10 Thus the sea routes in the South China Sea are usually regarded as economic lifelines for East Asian countries, particularly for Japan. For this reason, it is obvious that acts of piracy in the South China Sea constitute a great threat to the security of navigation as well as to the safety of vessels and crews.
Piracy is traditionally regarded as hostis humani generis, the enemy of the human race. They commit acts of murder, robbery, plunder, rape or other villainous deeds at sea, cruelly against humanity. Because of the nature of the offense, it is punishable wherever encountered.11 Early references to it can be found in Justinian’s Digest in AD 529, in King John’s Ordinance of 1201, and in numerous European laws from then on.12 The law of piracy is directed to eliminate and suppress all acts of piracy in the world. Since piracy is sui generis, the law is to some extent very special in comparison with other laws. It embodies two parts, i.e. the international and the domestic.
Piracy under international law
Since piracy is a crime with international character, it is governed under international law. The term “piracy” is usually referred to a broad range of violent acts at sea. Article 101 of the United Nations Convention on the Law of the Sea (the LOS Convention) defines it as:
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 to: (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).
The above definition is copied verbatim from the 1958 Geneva Convention on the High Seas,13 which actually codified customary international law on the point. It consists of five elements:
1 the acts complained against must be crimes of violence such as robbery, murder, assault, or rape;
2 committed on the high seas beyond the land territory or territorial sea, or other territorial jurisdiction, of any State;
3 by a private ship, or a public ship which through mutiny or otherwise is no longer under the discipline and effective control of the State which owns it;
4 for private ends; and
5 from one ship to another so that two ships at least are involved.14
However, the definition provided for in the LOS Convention has limitations. First, it defines “piracy” as only for “private ends”, though it is argued that such wording could be given a wider interpretation.15 For instance terrorist acts at sea for political ends are generally excluded. That is why after the Achille hauro incident in 1988,16 the world community needed the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the Rome Convention), which will be discussed below. Second, according to the above definition, piracy juris gentium presupposes that a criminal act be exercised by passengers or the crew of a ship against another ship or persons or property on board. The two-vessel requirement is an ingredient of the crime of piracy, unless a criminal act occurs in terra nullius.17 Thus “internal seizure” within the ship is hardly regarded as an “act of piracy” under this definition.18 Because of these limitations and other alleged deficiencies in the definition, some scholars have suggested revising this definition.19 It may be recalled that in 1970 before UNCLOS III, the International Law Association suggested a definition on piracy as “unlawful seizure or taking control of a vessel through violence, threats of violence, surprise, fraud or other means”,20 but it was not considered in UNCLOS III. In addition, since the above definition is only applicable to the acts of piracy in the high seas or places outside states’ jurisdiction,21 it has a geographic limitation and could not cover the whole piratical situation in the South China Sea.
To remedy these limitations, IMO has attempted to divide acts of piracy into two categories by geographical and legal division of maritime zones: piracy on the high seas is defined as “piracy” under the LOS Convention definition, while acts of piracy in ports or national waters (internal waters and territorial sea) are defined as “armed robbery against ships”.22 However, we may note that the shortcoming of such a division is obvious: piracy is not equivalent to armed robbery and it may also include other violent acts such as murder, assault, and rape.
The Piracy Reporting Centre of the International Maritime Bureau of the International Chamber of Commerce (IMB-PRC) suggested a 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 of that act”,23 which seems to be accepted by the shipping industry but has not been recognized both in international law and in domestic law. Nevertheless, it bears some value for reference when the definition of piracy in international law is considered.
International law has established an obligation on states to cooperate in suppression of piracy and grants states certain rights to seize pirate ships and criminal suspects. Article 100 of the LOS Convention provides that “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”. Article 105 further provides that
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 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.
Only warships or military aircraft or similar governmentally authorized ships or aircraft have the power to seize a pirate ship or aircraft in the high seas.
The problem of the EEZ, originally being part of the high seas, has compounded the issue of piracy. Since the provisions in the LOS Convention are fully and unchangeably copied from the 1958 Convention, it may query whether these clauses are still applicable to the EEZ, as residual rights and/or obligations in question, despite the changed legal status of the latter. The provisions are ambiguous and controversial, particularly in the context of Article 86 of the Convention.24 In spite of such ambiguity, it is meaningful to note that similar residual rights and/or obligations have been retained in the LOS Convention formerly belonging to the freedom of high seas, such as the freedom of navigation in the EEZ.
Article 58 of the LOS Convention expressly provides that the piracy provisions are applicable to the EEZ in so far as they are not incompatible with the provisions on the EEZ and in compliance with laws and regulations adopted by a coastal state. Since piracy is closely related to the safety of navigation, states could assume a corresponding duty or right to suppress piracy in the EEZ of other states provided that anti-piracy measures taken by such states are inadequate. The problem is more exacerbated when a certain coastal state is unable to handle effectively acts of piracy occurring within its EEZ. For such reason, it is argued that the piracy provisions in the LOS Convention should apply to the EEZ in so far as they are not incompatible with the rights of coastal states set forth in the LOS Convention:
Since enforcement against a pirate, in normal circumstances, could not be viewed as impinging upon any rights reserved to the coastal State, the law of piracy in the EEZ must be viewed as identical to that applying beyond.25
The above issue is important to the South China Sea since most, if not all, of the sea areas will be within national jurisdiction after the necessary maritime boundary delimitation between/among the interested coastal countries. The piracy provisions in the LOS Convention, once they become the basis for regional cooperation combating piracy, are applicable to the EEZ in the region. Second, it is recognized that suppression of piracy within national jurisdiction is a duty and obligation of a coastal state on behalf of the interest of the entire international community as well as for its own interest. Since the EEZ is now within the national jurisdiction of the coastal state, the degree and scope of the applicability of the piracy provisions in the LOS Convention may differ from their application to the high seas. The key question lies in the jurisdictional aspect. The view expressed by Lauterpacht may be insightful. He once said that
If a pirate is chased on the open sea and flees into the territorial maritime belt, the pursuers may follow, attack and arrest the pirate there; but they must give him up to the authorities of the littoral state.26
Accordingly, foreign warships have the right of hot pursuit within the EEZ of a coastal state and the right to arrest piratical vessels there, but the coastal state may have the right to request the state which has exercised the rights in respect of suppression of piracy to hand over the pirates for trial in the coastal state.