Enforcing the law of piracy in the South China Sea

Journal of Maritime Law and Commerce

Volumn 31, Issue 1, 2000, Pages 107-117

  Keyuan, Zou ^a  

^a NONE

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EID: 0034393137     PISSN: 00222410     EISSN: None     Source Type: Journal    
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References (61)

1. In the 16th century, for example, the Italian jurist Gentili wrote: Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law. They ought to be crushed by us and by all men. This is a warfare shared by all nations. A. Gentili, De Jure Belli Libri Tres 423 (J. Rolfe trans. 1964). Similarly, in the 18th century Judge Bee observed that "[a] pirate, under the law of nations, is an enemy of the human race. Being the enemy of all, he is liable to be punished by all." United States v. Robins, 27 F. Cas. 825, 862 (D.S.C. 1799) (No. 16,175). It should be noted that in early European states, piracy was considered a legitimate practice. Pirates brought revenue to the sovereign, weakened enemies by attacking their vessels and settlements, and supplied domestic markets with scarce goods at affordable prices. The most successful of the British pirates were even knighted. See further J. Thomson, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (1994).
2. In the 16th century, for example, the Italian jurist Gentili wrote: Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law. They ought to be crushed by us and by all men. This is a warfare shared by all nations. A. Gentili, De Jure Belli Libri Tres 423 (J. Rolfe trans. 1964). Similarly, in the 18th century Judge Bee observed that "[a] pirate, under the law of nations, is an enemy of the human race. Being the enemy of all, he is liable to be punished by all." United States v. Robins, 27 F. Cas. 825, 862 (D.S.C. 1799) (No. 16,175). It should be noted that in early European states, piracy was considered a legitimate practice. Pirates brought revenue to the sovereign, weakened enemies by attacking their vessels and settlements, and supplied domestic markets with scarce goods at affordable prices. The most successful of the British pirates were even knighted. See further J. Thomson, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (1994).
3. See Birnie, Piracy Past, Present and Future, 11 Marine Pol'y 163 (1987).
4. See generally Beckman et al., Acts of Piracy in the Malacca and Singapore Straits, 1 IBRU Maritime Briefing 1 (1994).
5. See Li, Zheng He's Voyage and Solution of Pirates Issue, in Chinese Heading for the Sea 311-19 (Nanjing Zheng He Study Ass'n ed. 1996).
6. According to published reports, in 1996 there were 133 piratical attacks in the South China Sea (representing 58% of the world's total), while in 1997 there were 109 attacks (43% of the global figure). See IMO Acts to Combat Piracy (available at www.imo.org/news/298/piracy.htm). See also Ung, Violent Attacks by Pirates on the Rise: South China Sea is Riskiest Area, Seattle Times, Feb. 3, 1999, at A14. Exactly how many piratical attacks are taking place, however, is unknown, for it is estimated that 50%-90% of all attacks go unreported. The reasons for non-reporting include: 1) masters who fear bringing unwanted attention to themselves and their ships; 2) owners who fear increased insurance costs and demands for hazardous duty pay from crew members; and, 3) government officials who fear damage to commercial trade relationships and national security. See further Hyslop, Contemporary Piracy, in Piracy at Sea 5 (E. Ellen ed. 1989).
7. According to published reports, in 1996 there were 133 piratical attacks in the South China Sea (representing 58% of the world's total), while in 1997 there were 109 attacks (43% of the global figure). See IMO Acts to Combat Piracy (available at www.imo.org/news/298/piracy.htm). See also Ung, Violent Attacks by Pirates on the Rise: South China Sea is Riskiest Area, Seattle Times, Feb. 3, 1999, at A14. Exactly how many piratical attacks are taking place, however, is unknown, for it is estimated that 50%-90% of all attacks go unreported. The reasons for non-reporting include: 1) masters who fear bringing unwanted attention to themselves and their ships; 2) owners who fear increased insurance costs and demands for hazardous duty pay from crew members; and, 3) government officials who fear damage to commercial trade relationships and national security. See further Hyslop, Contemporary Piracy, in Piracy at Sea 5 (E. Ellen ed. 1989).
8. According to published reports, in 1996 there were 133 piratical attacks in the South China Sea (representing 58% of the world's total), while in 1997 there were 109 attacks (43% of the global figure). See IMO Acts to Combat Piracy (available at www.imo.org/news/298/piracy.htm). See also Ung, Violent Attacks by Pirates on the Rise: South China Sea is Riskiest Area, Seattle Times, Feb. 3, 1999, at A14. Exactly how many piratical attacks are taking place, however, is unknown, for it is estimated that 50%-90% of all attacks go unreported. The reasons for non-reporting include: 1) masters who fear bringing unwanted attention to themselves and their ships; 2) owners who fear increased insurance costs and demands for hazardous duty pay from crew members; and, 3) government officials who fear damage to commercial trade relationships and national security. See further Hyslop, Contemporary Piracy, in Piracy at Sea 5 (E. Ellen ed. 1989).
9. See SNSA Press Release (May 1992), cited in Beckman, supra note 3, at 13. The seven areas identified by the SNSA were: 1) the Strait of Malacca; 2) the northern tip of Sumatra, near the Benaaten Strait; 3) the Phillip Channel and waters near the Riau Islands of Indonesia; 4) the South China Sea near the Anambas Islands; 5) the South China Sea east of Pulau Tioman near Mangkai; 6) the South China Sea near Pedra Branca/Pulau Batu Puteh; and, 7) the Bangka Strait.
10. See IMO to Organize Missions, Regional Seminars on Piracy, IMOFAX 05/98 (Apr. 8, 1998) (available at www.imo.org/imo/briefing/1998/fax05.htm).
11. See Ung, Modern-Day Pirates on Asian Seas Swap Swords for Firearms, Chi. Trib., May 11, 1998, at 2.
12. See Marine Affairs of the Contemporary China 2 (L. Yuru & Z. Chengkui eds. 1985).
13. Aune, Piracy and Its Repression Under the 1982 Law of the Sea Convention, 8 Ocean Yearbook 21 (1989). The average distance between piratical attacks and the shore is 11.55 nautical miles in the Indonesian region, 68 nautical miles in Northeast Asia, and 94.4 nautical miles in the South China Sea. See Barry H. Dubner, Maritime Violence - The Problems with Modern Day Piracy, Issue Paper No. 9/95, Maritime Institute of Malaysia (n.d.), at 9 [hereinafter "Maritime Violence"] (citing Mark C. Farley, International and Regional Trends in Maritime Piracy 1989-1993, Naval Postgraduate School unpublished thesis, at 24).
14. Aune, Piracy and Its Repression Under the 1982 Law of the Sea Convention, 8 Ocean Yearbook 21 (1989). The average distance between piratical attacks and the shore is 11.55 nautical miles in the Indonesian region, 68 nautical miles in Northeast Asia, and 94.4 nautical miles in the South China Sea. See Barry H. Dubner, Maritime Violence - The Problems with Modern Day Piracy, Issue Paper No. 9/95, Maritime Institute of Malaysia (n.d.), at 9 [hereinafter "Maritime Violence"] (citing Mark C. Farley, International and Regional Trends in Maritime Piracy 1989-1993, Naval Postgraduate School unpublished thesis, at 24).
15. Aune, Piracy and Its Repression Under the 1982 Law of the Sea Convention, 8 Ocean Yearbook 21 (1989). The average distance between piratical attacks and the shore is 11.55 nautical miles in the Indonesian region, 68 nautical miles in Northeast Asia, and 94.4 nautical miles in the South China Sea. See Barry H. Dubner, Maritime Violence - The Problems with Modern Day Piracy, Issue Paper No. 9/95, Maritime Institute of Malaysia (n.d.), at 9 [hereinafter "Maritime Violence"] (citing Mark C. Farley, International and Regional Trends in Maritime Piracy 1989-1993, Naval Postgraduate School unpublished thesis, at 24).
16. See Weeks, Sea Lines of Communications (SLOC) Security and Access, in Maritime Shipping in Northeast Asia: Law of the Sea, Sea Lanes, and Security 55 (M. Stankiewicz ed. 1998).
17. Olson, Marine Traffic in the South China Sea, 12 Ocean Yearbook 137 (1996).
18. See Meyrick, Development in Asian Maritime Trade, in Stankiewicz, supra note 11, at 21.
19. Piratical attacks directed at oil tankers have the potential to cause massive oil spills, and many South China Sea attacks have taken place in areas of great natural beauty or international environmental significance. See further Andrew Linninton, Piracy: NUMAST Presentation to ICC Conference, paper presented at the 3d ICC-IMB International Meeting on Piracy and Phantom Ships held in Kuala Lumpur on June 1-2, 1998, at 12-13, and International Maritime Bureau, Piracy Reporting Centre, 1994 Piracy Report (Dec. 1994), at 7 (noting that "the potential for environmental disaster should not be underestimated, as a significant number of attacked vessels drift unsupervised during and after the piratical incidents."). Approximately 25% of all recorded pirate attacks have been against a tanker of some description. See Farley, supra note 10, at 4-5.
20. Piratical attacks directed at oil tankers have the potential to cause massive oil spills, and many South China Sea attacks have taken place in areas of great natural beauty or international environmental significance. See further Andrew Linninton, Piracy: NUMAST Presentation to ICC Conference, paper presented at the 3d ICC-IMB International Meeting on Piracy and Phantom Ships held in Kuala Lumpur on June 1-2, 1998, at 12-13, and International Maritime Bureau, Piracy Reporting Centre, 1994 Piracy Report (Dec. 1994), at 7 (noting that "the potential for environmental disaster should not be underestimated, as a significant number of attacked vessels drift unsupervised during and after the piratical incidents."). Approximately 25% of all recorded pirate attacks have been against a tanker of some description. See Farley, supra note 10, at 4-5.
21. Piratical attacks directed at oil tankers have the potential to cause massive oil spills, and many South China Sea attacks have taken place in areas of great natural beauty or international environmental significance. See further Andrew Linninton, Piracy: NUMAST Presentation to ICC Conference, paper presented at the 3d ICC-IMB International Meeting on Piracy and Phantom Ships held in Kuala Lumpur on June 1-2, 1998, at 12-13, and International Maritime Bureau, Piracy Reporting Centre, 1994 Piracy Report (Dec. 1994), at 7 (noting that "the potential for environmental disaster should not be underestimated, as a significant number of attacked vessels drift unsupervised during and after the piratical incidents."). Approximately 25% of all recorded pirate attacks have been against a tanker of some description. See Farley, supra note 10, at 4-5.
22. 21 I.L.M. 1261 (1982).
23. As is well-known, the LOS Convention's definition of piracy suffers from at least three serious problems. First, it limits piracy to acts undertaken for "private ends." Accordingly, terrorist acts for political ends are generally excluded. Second, it requires the involvement of two or more ships. Thus, the "internal seizure" of a vessel is not considered piracy. Third, it limits piracy to acts occurring on the high seas or places outside the jurisdiction of any state. As such, attacks within the territorial sea are not covered. Prior to the promulgation of the LOS Convention, the International Law Association suggested that piracy be defined as the "unlawful seizure or taking control of a vessel through violence, threats of violence, surprise, fraud or other means." See International Law Ass'n, Piracy: Sea and Air, Report of the Fifty-fourth Conference, Aug. 23-29, 1970, at 708. More recently, the International Maritime Bureau's Piracy Reporting Centre has defined 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." See Piracy Reporting Centre, Piracy and Armed Robbery Against Ships, Report for the Period of Jan. 1 - June 30, 1998 (July 1998), at 1 [hereinafter "Armed Robbery"]. For a further look at the definitional problems presented by piracy, see, e.g., Crockett, Toward a Revision of the International Law of Piracy, 26 De Paul L. Rev. 78 (1976), and Rubin, Is Piracy Illegal?, 70 Am. J. Int'l L. 92 (1976).
24. As is well-known, the LOS Convention's definition of piracy suffers from at least three serious problems. First, it limits piracy to acts undertaken for "private ends." Accordingly, terrorist acts for political ends are generally excluded. Second, it requires the involvement of two or more ships. Thus, the "internal seizure" of a vessel is not considered piracy. Third, it limits piracy to acts occurring on the high seas or places outside the jurisdiction of any state. As such, attacks within the territorial sea are not covered. Prior to the promulgation of the LOS Convention, the International Law Association suggested that piracy be defined as the "unlawful seizure or taking control of a vessel through violence, threats of violence, surprise, fraud or other means." See International Law Ass'n, Piracy: Sea and Air, Report of the Fifty-fourth Conference, Aug. 23-29, 1970, at 708. More recently, the International Maritime Bureau's Piracy Reporting Centre has defined 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." See Piracy Reporting Centre, Piracy and Armed Robbery Against Ships, Report for the Period of Jan. 1 - June 30, 1998 (July 1998), at 1 [hereinafter "Armed Robbery"]. For a further look at the definitional problems presented by piracy, see, e.g., Crockett, Toward a Revision of the International Law of Piracy, 26 De Paul L. Rev. 78 (1976), and Rubin, Is Piracy Illegal?, 70 Am. J. Int'l L. 92 (1976).
25. As is well-known, the LOS Convention's definition of piracy suffers from at least three serious problems. First, it limits piracy to acts undertaken for "private ends." Accordingly, terrorist acts for political ends are generally excluded. Second, it requires the involvement of two or more ships. Thus, the "internal seizure" of a vessel is not considered piracy. Third, it limits piracy to acts occurring on the high seas or places outside the jurisdiction of any state. As such, attacks within the territorial sea are not covered. Prior to the promulgation of the LOS Convention, the International Law Association suggested that piracy be defined as the "unlawful seizure or taking control of a vessel through violence, threats of violence, surprise, fraud or other means." See International Law Ass'n, Piracy: Sea and Air, Report of the Fifty-fourth Conference, Aug. 23-29, 1970, at 708. More recently, the International Maritime Bureau's Piracy Reporting Centre has defined 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." See Piracy Reporting Centre, Piracy and Armed Robbery Against Ships, Report for the Period of Jan. 1 - June 30, 1998 (July 1998), at 1 [hereinafter "Armed Robbery"]. For a further look at the definitional problems presented by piracy, see, e.g., Crockett, Toward a Revision of the International Law of Piracy, 26 De Paul L. Rev. 78 (1976), and Rubin, Is Piracy Illegal?, 70 Am. J. Int'l L. 92 (1976).
26. As is well-known, the LOS Convention's definition of piracy suffers from at least three serious problems. First, it limits piracy to acts undertaken for "private ends." Accordingly, terrorist acts for political ends are generally excluded. Second, it requires the involvement of two or more ships. Thus, the "internal seizure" of a vessel is not considered piracy. Third, it limits piracy to acts occurring on the high seas or places outside the jurisdiction of any state. As such, attacks within the territorial sea are not covered. Prior to the promulgation of the LOS Convention, the International Law Association suggested that piracy be defined as the "unlawful seizure or taking control of a vessel through violence, threats of violence, surprise, fraud or other means." See International Law Ass'n, Piracy: Sea and Air, Report of the Fifty-fourth Conference, Aug. 23-29, 1970, at 708. More recently, the International Maritime Bureau's Piracy Reporting Centre has defined 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." See Piracy Reporting Centre, Piracy and Armed Robbery Against Ships, Report for the Period of Jan. 1 - June 30, 1998 (July 1998), at 1 [hereinafter "Armed Robbery"]. For a further look at the definitional problems presented by piracy, see, e.g., Crockett, Toward a Revision of the International Law of Piracy, 26 De Paul L. Rev. 78 (1976), and Rubin, Is Piracy Illegal?, 70 Am. J. Int'l L. 92 (1976).
27. 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 83.
28. Goldie, Terrorism, Piracy and the Nyon Agreement, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 227 (Y. Dinstein ed. 1988).
29. See Aune, supra note 10, at 29, 36-37.
30. Clingan, The Law of Piracy, in Ellen, supra note 5, at 170.
31. See Brittin, The Law of Piracy: Does It Meet the Present and Potential Challenges?, in Ellen, supra note 5, at 165 (recalling Lauterpacht's observation 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.").
32. 27 I.L.M. 668 (1988). For detailed comments on the convention and its background, see Plant, The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 39 Int'l & Comp. L.Q. 27 (1990), and Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety, 82 Am. J. Int'l L. 269 (1988).
33. 27 I.L.M. 668 (1988). For detailed comments on the convention and its background, see Plant, The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 39 Int'l & Comp. L.Q. 27 (1990), and Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety, 82 Am. J. Int'l L. 269 (1988).
34. See, e.g., the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, 2 I.L.M. 1042 (1963); the 1970 Hague Convention for the Suppression of Unlawful Seizures of Aircraft, 10 I.L.M. 133 (1971); and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 10 I.L.M. 1151 (1971).
35. See Rome Convention art. 3.
36. 27 I.L.M. 685 (1988).
37. See IMO Acts to Combat Piracy (available at www.imo.org/news/298/piracy.htm).
38. See Piracy and Armed Robbery Against Ships, Maritime Safety Comm., 68th sess., May 28 - June 6, 1997 (available at www.imo.org/imo/meetings/msc/68/piracy.htm).
39. See Terazaki, The UNCTAD Perspective on Piracy, in Ellen, supra note 5, at 173. The term "maritime fraud" normally refers to any dishonest act undertaken in connection with a maritime endeavor, even if it does not involve the concealment, deceit, or misrepresentation typically needed to constitute legal fraud. Thus, for example, simple theft, piracy, and barratry are generally included within the term. See United Nations Conference on Trade and Development, Review and Analysis of Possible Measures to Minimise the Occurrence of Maritime Fraud and Piracy, TD/B/C.4/AC.4/2 (Sept. 21, 1983), at 4.
40. The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court was held from June 15 to July 17, 1998 in Rome and concluded with the adoption of the Rome Statute of the International Criminal Court. The court will be established after 60 letters of ratification have been deposited. The current status of the court, together with relevant texts, can be found at www.un.org/icc.
41. See UN Doc. A/CONF.183/9 (July 17, 1998), at 2.
42. The full text is reprinted in A. Rubin, The Law of Piracy 362-69 (1988). Even before the Act of 1698, however, English law provided, albeit in piecemeal fashion, for the punishment of pirates and robbers at sea.
43. See further II D. O'Connell, The International Law of the Sea 981-83 (1984).
44. R.S.C. 1985, c. C-46, § 74(2).
45. B. Dubner, The Law of International Sea Piracy 40 (1980).
46. See, e.g., the Canadian Criminal Code, supra note 33, at § 74(1) (defining piracy as "any act that, by the law of nations, is piracy.").
47. See 1983 Revised Penal Code 52 (G. Trinidad ed. 1984).
48. See, e.g., Article 116 (sabotage of vessels), Article 117 (sabotage of navigation lanes), and Article 267 (robbery) of the Criminal Law of the People's Republic of China.
49. Besides the Criminal Law, the security, safety, and hot pursuit provisions of certain Chinese maritime laws can be used to fight piracy. Among such statutes are the 1992 Law on the Territorial Sea and the Contiguous Zone and the 1998 Law on the Exclusive Economic Zone and the Continental Shelf.
50. See further International Maritime Bureau, Piracy and Armed Robbery Against Ships, Annual Report, Jan. 1-Dec. 31, 1997 (1997), at 11 (noting that Chinese army officers occasionally engage in piracy against foreign ships).
51. Beckman, supra note 3, at 16.
52. Clingan, supra note 20, at 171.
53. See, for example, the First Meeting of the Technical Working Group on Safety of Navigation, Shipping and Communication in the South China Sea, held in Jakarta, Oct. 3-6, 1995, in Workshop and Technical Working Group Statements (available at faculty.law.ubc.ca/scs/).
54. See Armed Robbery, supra note 16. It should be noted that these gains were offset by a similar increase in piracy in the South China Sea. See Maritime Violence, supra note 10, at 10. The connection between these two events, although unproven, seems obvious.
55. In particular, the Centre: 1) collects reports of suspicious or unexplained craft movements, boardings, and armed robberies and passes this information on to other ships and law enforcement agencies; 2) issues regular status reports on piracy and armed robberies via broadcasts on Inmarsat-C through its SafetyNET service; and, 3) collates and analyzes relevant data and distributes consolidated reports to interested bodies such as the IMO. In addition, the Centre provides post-incident support and publishes a guide filled with background information, preventive advice, operational reporting proce-dures, and post-incident management, including the securing of evidence and contact points. In the future, the Centre's functions may be expanded to include organizing investigations of piracy incidents and training law enforcement personnel in the East Asian region.
56. At present, Brunei, Indonesia, Malaysia, the Philippines, the PRC, Singapore, and Vietnam are parties to the LOS Convention.
57. Such a treaty is specifically contemplated by Article 123 of the LOS Convention, which requires countries bordering semi-enclosed seas such as the South China Sea to cooperate with each other in the exercise of their rights and the performance of their duties under the convention.
58. 15 I.L.M. 1272 (1977). The convention entered into force on August 4, 1978 and was subsequently joined by a separate Agreement Concerning the Application of the European Convention on the Suppression of Terrorism Among the Member States of the European Communities. See 19 I.L.M. 325 (1980).
59. 10 I.L.M. 255 (1971). The convention entered into force on October 16, 1973.
60. For a further discussion of the conventions, see Freestone, International Co-operation Against Terrorism and the Development of International Law Principles of Jurisdiction, in Terrorism and International Law 54 (R. Higgins & M. Flory eds. 1997).
61. Of course, the promulgation of a treaty will constitute only a first step, and implementation will require resolution of numerous operational issues. Thus, for example, it will be necessary to: 1) create a joint patrol team (like the tripartite team in the Straits of Malacca and Singapore), 2) assign patrol tasks to individual countries to be served on a rotation basis, or, 3) divide the South China Sea into permanent patrol zones that are staffed on either a joint or individual basis. Similarly, understandings will have to be reached regarding the right of member states to enter the waters of other member states to pursue and capture pirates. See further Samuel P. Menefee, Possible Foreign Naval Intervention in Cases of Piracy in International and Coastal Waters, paper presented at the 3d ICC-IMB International Meeting on Piracy and Phantom Ships held in Kuala Lumpur on June 1-2, 1998, at 1.