January 05, 2010
Rheny Pulungan
Taking On Regional Piracy Calls for New Direction in the Malacca Strait
To most of the world, Somalia could easily be renamed the land of pirates. Hijackings have become routine off the coast of this East African nation, earning it the unenviable title of most dangerous waters in the world. There have been 147 attacks in the Gulf of Aden between January and September 2009, according to the International Maritime Bureau in Kuala Lumpur.
The second most dangerous waters are closer to home in the Malacca Strait, the waters between Indonesia, Malaysia and Singapore. Connecting the Indian Ocean and the South China Sea, this strait has been a pirate haven for years.
The Malacca Strait, together with the Singapore Strait, are some of the most important waterways in the world. The Malacca Strait provides the shortest route for tankers trading between the Middle East and East Asian countries and sees approximately 60,000 vessels a year. Furthermore, there are a large number of local vessels dealing with trade across the straits and various fishing vessels can be encountered in most areas.
The Malacca Strait is also vital to international energy trade — about 30 to 40 percent of the total traffic in the straits of Malacca and Singapore are oil tankers. About 80 percent of that oil is imported by Japan, South Korea and China from the Persian Gulf.
Prior to 1989, the Malacca Strait was relatively safe with, on average, only seven reported cases of piracy and armed robbery every year. In 1989, the number of cases increased to 28 and rose significantly to 50 cases in 1991. In 2004, about one-third of the 325 cases of armed robbery and piracy against shipping worldwide were in Southeast Asia, including the Malacca Strait and Indonesian waters. In the last three years the number of piracy attacks has declined, but attacks remain a significant threat for shipping in the region.
Often the pirates have satellite phones and can eavesdrop on communications from the targeted vessels. Moreover, assaults are becoming more violent — automatic assault rifles, rocket-propelled grenades and hand grenades are increasingly carried and used by pirates. Ships and their crews are facing regular threats of unauthorized boarding; theft of personal property, cargo and the ships themselves; and violence against, and kidnapping or murder of, seafarers.
How have the three littoral states, namely Indonesia, Malaysia and Singapore, reacted? Thus far, not nearly enough to suppress piracy and armed robbery against ships. For example, in 2004 the countries joined forces on “coordinated naval patrols,” each nation contributing up to seven patrol ships that remained under their separate national commands. In practice, the action will not solve the problem because it is carried out on an infrequent basis, depending on the situation or, more obviously, depending on international pressure.
The coordinated patrols conducted by the littoral states are obviously a great change in relation to suppressing the act of piracy and maritime terrorism in the Strait of Malacca. However, since these are not joint patrols, meaning vessels of each country remain in their own territorial waters, they have limited implications especially in relation to reducing the act of piracy.
Joint patrol areas should cover the areas where there are the most incidents of piracy against vessels plying through the straits, particularly if these areas are where the territorial boundaries are undecided. The joint patrol areas may also include waters within the territorial sovereignty of one or more states. By such an arrangement, the three countries would effectively give each other “quick” permission to enforce jurisdiction within the joint patrol areas, even if the incident occurred in the territorial waters of another state.
In relation to the joint patrol areas, the three states could also agree to pass domestic legislation stating that all acts of piracy conducted against vessels and persons in the joint patrol areas is a crime under their domestic law and will be punished with severe penalties. With this arrangement, no state would complain if, for example, Indonesia and Singapore made attacks against pirates in joint patrol areas in the Singapore Strait even if the crimes were conducted in areas beyond the territorial waters of the arresting state.
An argument can be made to assert the right to such jurisdiction, since acts of piracy in the strait run counter to the fundamental interest of each state and the safety of international shipping.
One major difficulty in protecting shipping from pirate attacks is related to the fact that perpetrators and law enforcement officials are not bound by the same rules. Pirates do not respect maritime borders or national sovereignty, while law enforcement and military officials respect both these limits. Due to a lack of mutual trust, law enforcement vessels in pursuit of criminals have not been permitted to enter foreign territorial seas. Particularly to Indonesia and Malaysia, sovereignty is still a crucial issue when we talk about allowing foreign vessels to enter territorial waters. Thus it often happens that when Singaporean authorities are in pursuit of a pirate ship, this ship merely escapes to Indonesian waters.
Recently, the United Nations Security Council unanimously voted to allow countries to send warships into Somalia’s territorial waters to combat pirates. None of the three countries in the Malacca Strait are failed states such as Somalia, however, meaning that no foreign vessels would have the right to enter their territorial waters in the name of antipiracy efforts. Nevertheless, we have to be aware of the fact that there have been some attempts, supported by the Singaporean government, to invite US and Japanese warships to help patrol the Malacca Strait.
The answer to this problem is quite clear: mutual cooperation among the three littoral states. An agreement that allows other county’s law enforcement officials to enter the territorial waters of another country in the incidence of piracy, without having to wait for permission, is inevitable. Together with information sharing and joint patrols throughout the strait and in surrounding areas, such cooperation can be the answer to combating piracy at home and across the region.
Rheny Pulungan is a doctoral candidate in law at the University of Melbourne .
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