What comes into your mind when you heard the word “pirates?” is it Captain Hook from the Disney movie “Peter Pan” with an eye patch? Is it a hungry and angry guy from Somalia trying to hijack the Maersk Alabama in “Captain Phillips?” However, other than focusing on how the popular media trying to portray how pirates actually looked like, we shall be aware that actual piracy activity is something that is closer to home. In fact, Southeast Asia hosted the most piracy activities due to their fragile geographical location and other relevant socio economic factors. The number elevated in between 1995 – 2013 into being the place for 41% total piracy activities. These numbers are quite high when being compared to Somalia (18%) and West African Coast (13%) .
Based on Adam Mccauley from TIMES, more than 120.000 ships passes through the Indonesia- Malaysia- Singapore which makes it a vital waterways and trade routes for international economic and trading activities. The data conducted in the year of 2010 proven that piracy drains $7 Billion – $12 Billion US Dollars each year from the global economy creates an urgencies for parties to both eradications and analysis of these occurrences.
Therefore, other than describing the maritime security policies of the respective Southeast Asian states, this article means is to assess both legal and socio – economic factor that resulted into international criminal activity to keep occurring in Southeast Asian waters. Starting from the problems of defining “Piracy” in UNCLOS and other conventions, Geographical locations, legal complications due to overlapping jurisdiction and to assess the corruption activities of states that contribute to the existences of these activities.
UNCLOS; Unsuitable to Govern Piracy in Southeast Asia?
The measure to prevent and eradicate piracy activities has already been regulated on the UNCLOS (United Nations Conventions on Law of The Sea). This documents is the most prominent legal documents that regulates most aspect on ocean governance systems, despite their Mare Liberum & Res Communis status. This conventions governs baselines, states rights over their respective sea area as well as natural resources contains within it and how human beings cultivate these resources. The definition of “piracy” itself that is contained within UNCLOS is “any illegal acts committed for private ends by the crew or passengers and directed on the high seas and outside the jurisdictions of any state” . However, this is problematic in a way that piracy within the territorial seas are not included within the context of piracy contained in the aforementioned articles.
This practices resulted into piracy activities happening in the territorial sea area, even though the ship of their own nationals are the victim of the attacks. Mostly, these hijacking activities are conducted with smaller vessels and would only resulted into these activities to be considered as theft / armed robbery . Research also proven that both African/Southeast Asian region have different characteristic when it comes to piracy, since in the latter region, piracy are predominantly hijacking tankers to steal oil cargos other than kidnapping and asking for ransom in return.
The legal definition of the concept of piracy as written in the aforementioned documents created a legal implications where the writer believes that it created a reality where most of these “minor” piracy perpetrators goes free due to the point that this documents failed to address the problem of piracy activities in the territorial waters and the traits of piracy that is happening in Southeast Asia. These problems are the reason why the Straits of Melacca are considered to be a war risks premium area by the Joint War Committee (JWC) of the London Market. This facts is the reason why many states in Southeast Asia come up with both bilateral & joint cooperation agreement in order to tackle piracy activities, such as the Regional Co-Operation Agreement in Combating Piracy and Armed Robbery Against Ship In Asia (ReCAAP) where states shares information conducts cooperative arrangements in order to eradicate piracy, and other bilateral joint agreement.
Cooperation Is Not Enough – ReCAAP is not enough.
However, by regulating the ReCAAP does not mean that the problem of Piracy is immediately solved. This is due to various political interests and other socio – economic factors that has been going on within the region. On the political sectors, most of ReCAAP members are ASEAN members. This leads to a non – interventionist approach into various matters where states are hesitant to interfere in other state’s affairs due to the fact that for years, ASEAN believes in harmonious co – existence where states exists alongside others with respect to sovereignty. Furthermore, some states are still reluctant to share information that could not be beneficial for their national interest.
The implications of the aforesaid statements are quite detrimental in the long run in a sense where political interests are one of the biggest obstacles in the process of eradicating Piracy in Southeast Asia. The geographical contour of Southeast Asia that is mainly made out of intersecting economic exclusive zones and straits goes along a several regions made eradication process impossible due to the fact that states has their own sovereignty rights in order to protect their areas in which includes their waters. Although International Law and Law of the Sea recognizes the practice of Hot Pursuit or the rights of coastal state to conduct a pursuit of a foreign vessel all the way to the high seas, these practices are in fact, limited in reality. Furthermore, the compositions of Indonesia that is made up of thousands of islands could makes it harder for ocean patrol to eradicate piracy due to the fact when this event occurred, the perpetrators could easily hide in one of the islands that is located near to the area.
Solutions and Possible Legal Frameworks
Thus, after doing a brief research of the subject matter, the writer come up with three approach in order to tackle the aforementioned problems by approaching it through 3 different aspects; such as Legal, Political & Socio Economical Part. The writer believed that in order to tackle a problem that has been going on for quite some time and deeply rooted within the region, this approach must be done in order to prevent, maintain and eradicate, all at once.
In the legal aspects, there must be an understanding that there are actual differences between the concept of “piracy” and “contemporary piracy”. The concept of piracy are concept that is derived from the western world and it involved element of war where the master and the crew of the vessel is usually taken as hostage. However, contemporary piracy are usually conducted in smaller boats and the activity that is usually conducted are theft that could resulted into private entity experiencing losses, even before the goods reached the port of destination. Thus, there needs to be an expansion of the legal definition of piracy due to the fact that in the region, people are usually conducting piracy for purely, economic motives.
In the political aspects, there must be an increase of cooperation between states (especially coastal ones) to conduct more joint cooperation in order to eradicate piracy. This could means more information sharing platform between regions in order to become more transparent in regards to any information concerning these activities. In the past few years, the effort has not been very effective due to the fact that states still highly concerns that transparency would resulted into their states to be deemed as weak and vulnerable against these attacks, while in fact transparency are the most integral part into the battle against piracy. In the aspect of technicalities, there must be also standardized and uniformed standards and protocols when it comes to ways to conserve the vessel and the goods contained within it whenever this kind of event occurred, and this must be apply by all vessels that sails through the ASEAN waters.
And lastly, the 2 efforts above could not be implemented if it is not being paired with a good approach towards the socio – economic factors of the region as well. There needs to be a socialization process by the regions that consists of government, state actors as well as non governmental actors to help the people, especially the one with the lower status living in the coastal area, about the danger of this activity and how it can be detrimental towards the status of maritime security of a country. Also, there needs to be cooperatives between parties to create initiatives in regards of finding alternative source of income for people living in the area who is prone to this kind of activities. With that, we could hope that the society could be more proactive and would be willing to cooperate with the government, to help eradicate this kind of crime once and for all.
Law & Legislations References
United Nations Conventions on Law of The Sea
Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships of the International Maritime Organization (IMO) Assembly Resolution A.1025
Regional Co-Operation Agreement in Combating Piracy and Armed Robbery Against Ship In Asia (ReCAAP)
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Recaap. Org (2018). ReCAAP Information Sharing Center. To enhance cooperation through information sharing, capacity building and cooperative arrangements in combating piracy and armed robbery against ships.
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This article was written by Aicha Grade Rebecca, an undergraduate student at the Faculty of Law Universitas Gadjah Mada, doing an internship at the Center for Southeast Asian Social Studies (CESASS).