Piracy in Southeast Asia: Status, Issues, and Responses

7. Combating Piracy: Co-operation Needs, Efforts, and Challenges by Hasjim Djalal

Combating Piracy 143 7 Combating Piracy: Co-operation Needs, Efforts, and Challenges Hasjim Djalal The 1982 UN Law of the Sea Convention (UNCLOS) and Piracy With regard to piracy itself, the 1982 UNCLOS Article 100 obliges “all states to co-operate to the fullest possible extent in the repression of piracy”. Article 101 defines piracy as: 1. any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passenger of a private ship or a private aircraft, and directed : (1) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (2) 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; 07 Piracy Ch 7 6/6/05, 2:43 PM 143 144 Hasjim Djalal 3. any act of inciting or of intentionally facilitating an act described in paragraph (a) or (b). Thus piracy is an illegal act “on the high seas or in any other place outside the jurisdiction of any state”. An act of piracy which takes place in waters under national jurisdiction, therefore, is not an act of piracy, but armed robbery or sea robbery which must be dealt with exclusively by the state under the principle of coastal state sovereignty and national security. Given this definition and taking into account the 1982 UNCLOS Article 86, and without prejudice to the freedom of navigation and overflight in the EEZ, it would appear that an act of piracy within the EEZ would also be within national jurisdiction, since the high seas are generally understood to be an area beyond the EEZ. The freedom of navigation is assured in the EEZ by the 1982 UNCLOS Articles 58 paragraph 1 and Article 87 paragraph 1a. Because an armed robbery could interfere with the freedom of navigation, it would appear that an act to prevent armed robbery in the EEZ could be the subject of co-operation between states. According to the 1982 UNCLOS Article 102, if the act of piracy is committed by a warship or government ship controlled by a crew which has mutinied, the warship or the government ship would be regarded as a private ship which has committed piracy and therefore would be subjected to the rules of piracy. And according to the 1982 UNCLOS Article 103, a ship or aircraft would be considered a pirate ship or pirate aircraft if it is dominated by persons who have the intention to use the ship to commit an act of piracy. The ship may retain its nationality, although it has become a pirate ship, depending upon the law of the state which has granted its nationality in the first place. The pirates, and the property on board, may be seized from a pirate ship on the high seas or any other place outside the jurisdiction of any state. The penalties to be imposed as well as action to be taken with regard to the seized pirate ship would be determined by the court of the state which carries out the seizure (1982 UNCLOS Article 105). However, if it can be proven that the seizure has been effected without adequate grounds, the state(s) making the seizure shall be liable for any loss or damage caused by it (1982 UNCLOS Article 106). A seizure on account of piracy may be carried out only by a warship or military aircraft, or other ship or aircraft clearly marked and identifiable as being on government service and authorized to that effect (1982 UNCLOS Article 107). It appears from this Article that a warship or military aircraft 07 Piracy Ch 7 6/6/05, 2:43 PM 144 Combating Piracy 145 is allowed to seize pirate ships on the high seas simply by the fact that they are a warship or military aircraft without a need for further authorization, while other ships or aircraft being on government service can only do so if they are authorized to do so by the flag state. The Indonesian Situation Indonesia is a large maritime and archipelagic state in the Asia Pacific region. It controls about 3 million km2 of archipelagic waters and territorial sea, plus another 3 million km2 of EEZ...