Provisiones de a bordo

Singapore ratified UNCLOS on 17 November 1994. The agencies responsible for maritime safety and security, including piracy, are the Ministry of Transport and the Maritime Port Authority.

Prior to 1993, the Singapore Penal Code did not contain provisions on piracy. The Singapore Penal Code was developed based on the Indian Penal Code (1863), which also did not have piracy provisions.715 Before this, piracy was dealt with by the UK Admiralty Offences (Colonial) Act 1849, together with the Courts (Colonial) Jurisdiction Act 1874, neither of which contained provisions on the offence of piracy.716 The UK Admiralty Offences (Colonial) Act 1849 only provided that all persons charged in any colony with offences committed on the sea, including piracy, may be dealt with in the same manner as if the offences had been committed on waters within the local jurisdiction of the courts of the colo- ny.717 Furthermore, The Courts (Colonial) Jurisdiction Act 1874 gave colonial courts the power to try and pass sentences for offences committed on the high seas, or elsewhere out of the territorial limits of the colony and of the local juris- diction of the court, as if the crime had been committed within the limits of the colony.718

Singapore does not have specific legislation regarding piracy that implement the piracy provisions contained in articles 100 to 110 of UNCLOS. Nevertheless, in 1993 Singapore enacted legislation to amend its Penal Code and created a new Conventions' (Paper presented at the Conference on the Practices of the UNCLOS and the Resolution of South China Sea Disputes, National Taiwan Normal University, 3-5 September 2012) 7.

714

Ibid.

715 _{Several former British colonies (Brunei, India, Malaysia and Myanmar) have no provisions on pira-}

cy in their criminal code. This is largely because the Indian Penal Code was adopted by the British as the basic criminal law in those countries, and it contains no provision making piracy an offence. See Beckman and Palakrishnan, above n 713, 6.

716 _{Benton, above n 36, 17.}

717 _{See Section 1 of the UK Admiralty Offences (Colonial) Act 1849 available at}

<http://www.legislation.gov.uk/ukpga/Vict/12-13/96>

718

See Section 3 of the Courts (Colonial) Jurisdiction Act 1874 available at <http://www.legislation.act.gov.au/a/db_1780/20030118-3677/pdf/db_1780.pdf>

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offence for piracy.719 There are two provisions in the Singapore Penal Code (Cap 224) that deal with acts of piracy, namely Section 130 B of the Singapore Penal Code regarding Piracy by Law of Nations and Section 130 C of the Penal Code regarding Piratical Acts. According to Section 130 B:

1) A person commits piracy who does any act that, by the law of nations is pira- cy.

2) Whoever commits piracy shall be punished with imprisonment for life and with caning not less than 12 strokes, but if while committing or attempting to commit piracy, he murders or attempts to murder another person or does any act that is likely to endanger the life of another person, he be shall be pun- ished with death.720

Meanwhile, Section 130 C provides ‘whoever, while in or out of Singapore: a) steals a Singapore ship;

b) steals or without lawful authority throws overboard, damages or destroys an- ything that is part of the cargo, supplies or fittings in a Singapore ship; c) does or attempts to do a mutinous act on a Singapore ship; or

d) counsels or procures a person to do anything mentioned in paragraph (a), (b) or (c), shall be punished with imprisonment for a term no exceeding 15 years and shall be liable to caning’.721

Neither ‘piracy by the law of nations’, or ‘piratical acts’ under the Singapore Pe- nal Code implements the definition of piracy in article 101 of UNCLOS. Also, Singapore has not defined the notions of ‘piracy by the laws of nations’. Its pira- cy definition therefore remains unclear. 722

Overall, the three littoral states do not have national legislation in place to enable them to fully cooperate to combat piracy. States will likely only be able to coop- erate in combating piracy in a more effective way if they enact necessary legisla- tion to: (1) make acts of piracy by foreign nationals on foreign vessels outside the territorial sea of any State an offence under their laws; (2) authorize the personnel of their naval or coast guard vessels to board and seize pirate ships, and appre- hend the pirates; and (3) give their courts jurisdiction to try the offenders.723

719 _{Beckman and Palakrishnan, above n 713, 6.} 720 _{Section 130 B the Singapore Penal Code.} 721 _{Section 130 C the Singapore Penal Code.} 722

Davenport, above n 716, 18.

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3.4. Conclusion

There are a number of international treaties dealing with the suppression and appre- hension of piracy and maritime terrorism. These include the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1988 Convention for the Suppres- sion of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) and the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia (ReCAAP). In addition, there have been a number of the U.N. Security Council Resolutions on the Somali pirates. However, these international agreements have significant limitations and are not adequate to address all the prob- lems of piracy and potential maritime terrorism, particularly in the Malacca Straits.

The definition of piracy under the 1982 UNCLOS is very narrow. It is limited to ille- gal acts of violence or detention ‘committed for private ends’, ‘against a ship or air- craft ‘, on the high seas’ or ‘in other areas beyond the jurisdiction of any state’. Un- der the 1982 UNCLOS, the rules on piracy apply only if the act of piracy is commit- ted on the high seas, and outside the territorial sovereignty of any state. This includes acts of piracy committed in the EEZ of a coastal state. Therefore, these rules on pira- cy do not apply when the act of piracy occurs within the jurisdiction of any state.

Most recent acts of piracy committed in or near the Malacca Straits do not occur on the high seas or in the EEZ of a state but within the territorial sea of a coastal state, because under the 1982 UNCLOS a coastal state has the right to have a 12 nm territo- rial sea.724 Some attacks have even taken place within the internal waters of a state or while the ship is in port or at anchor.725 In archipelagic states, such as Indonesia, the attacks might also take place in what is defined as ‘archipelagic waters’.726 Conse- quently, according to the rules of the 1982 UNCLOS, attacks against vessels in any of these areas do not constitute piracy and the rules with respect to piracy on the high seas do not apply to these attacks.

724

Beckman, Grundy-Warr and Forbes, above n 65, 5.

725 _Ibid.

726 _{Archipelagic waters are waters enclosed by the archipelagic baselines. According to Article 47 (1)}

UNCLOS, an archipelagic state may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago. For more explanation, see Article 47 and 49 UNCLOS.

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The UNCLOS also limits the act of piracy as an act committed for private ends, thus excluding maritime terrorism. As heightened concern regarding terrorist activities developed after the 9/11attacks, many have predicted the possibility of maritime ter- rorism occurring in the Malacca Straits, although this has not yet happened. Since UNCLOS excludes attacks that are politically motivated, it effectively excludes acts of maritime terrorism.

Furthermore, the definition states that an act of piracy is committed by a ship or air- craft against another ship or aircraft, therefore two ships are required to constitute an act of piracy. Accordingly, as most acts of maritime terrorism involve only one ship, the definition, again, excludes most acts of maritime terrorism. This has now become a major international concern.

UNCLOS also has practical limitations. Despite the acceptance of universal jurisdic- tion in piracy provisions under the UNCLOS, offenders are prosecuted and penalised under the apprehending state’s domestic law, which varies from one state to another. As a consequence, there is no uniformity in terms of penalties imposed on pirates ar- rested by different states.

The three littoral states of the Malacca Straits also do not have appropriate legislation for dealing with piracy. Despite having ratified the UNCLOS, Indonesia has not en- acted specific legislation to implement the UNCLOS piracy provisions. Malaysia de- fines piracy by reference to the law of nations, however it requires a nexus between the state and the offense before it will prosecute piracy on that basis. Meanwhile, Singapore has specific provisions on piracy in its Penal Code. However, it simply makes reference to ‘piracy as defined by the law of nations’ without specifying the elements of piracy of the act.

It can therefore be argued that the definition of piracy under the convention is too nar- row to address the full extent of attacks on ships in the Malacca Straits. Accordingly, it seems that although the UNCLOS piracy provisions form a foundation for anti- piracy law and counter measures, they fail to adequately address the piracy and poten- tial maritime terrorism problems in the Malacca Straits.

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The second multilateral agreement which deals with piracy is the SUA Convention. The SUA Convention has far broader geographical provisions than the UNCLOS. Under the SUA Convention piracy not only occurs on the high seas but also in ports, territorial seas, or in maritime zones outside the jurisdiction of coastal states. Howev- er, the SUA Convention is not greatly relevant to the suppression of piracy and mari- time terrorism in the Malacca Straits since, although Singapore is a contracting party, neither Indonesia nor Malaysia has ratified this convention.

Even if the SUA Convention were widely ratified within the region, it would still fail to remedy many of the UNCLOS limitations regarding piracy. The SUA Convention was not intended to categorize unlawful acts against the safety of maritime navigation as acts of piracy. Its primary function was to combat unlawful acts against maritime safety navigation and to fight international terrorism. This is also the approach adopt- ed in a number of multilateral conventions, such as the 1970 Convention for the Sup- pression of Unlawful Seizure of Aircraft and the 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.

Another limitation in the SUA Convention relates to trial procedures and penalties imposed on pirates. Like the UNCLOS, the conduct of trials and penalties applied to pirates are determined by domestic law of a state. There is thus no uniformity among states in terms of trial processes and penalties applied to pirates.

The third anti-piracy agreement is the ReCAAP. Despite the fact that it includes ‘armed robbery against ships’ as the remedy to the limited ‘high seas requirement’ under the UNCLOS, the ReCAAP still restricts the act of piracy to an act committed for private ends, thus excluding maritime terrorism. Furthermore, it still contains the ‘two ship’ requirement, which, again, excludes many acts of maritime terrorism.

The most significant shortcoming, however, relates to the relevance of ReCAAP agreement, since neither Indonesia nor Malaysia is a state party to the agreement. The fear of other states’ intervention in their territorial waters is one of the reasons behind the reluctance of these two states to ratify the ReCAAP.

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The most recent legal framework for combating piracy was established by the U.N. Security Council Resolutions on the situation in Somalia. This, however, is of no di- rect relevance to combating piracy in the Malacca Straits due to the different political situations in both regions and the fact these Resolutions are expressly state that they do not alter existing international law norms.

The existing literature has focussed on the ‘private ends’ and ‘two-ship’ requirements and how these requirements prevent numerous maritime terrorist acts from being in- cluded within the ambit of international piracy laws. Some prominent academics, in- cluding Malvina Halberstam and George R. Constantinople, have proposed removing the ‘private ends’ and ‘two-ship’ requirements from the definition of piracy under the UNCLOS. While this is possible, the ‘high seas’ requirement is the most critical issue in regard to piracy in the Malacca Straits. It has not yet been solved, and arguing that the ‘high seas’ requirement should be extended to a state’s territorial sea will likely raise tensions in the littoral states, long highly sensitive about protecting their territo- rial sovereignty in a region of overlapping maritime boundaries .

The legal development of the concept of piracy has been influenced greatly by poli- tics. Prominent scholars, such as Rubin and Pérotin-Dumon, have affirmed that de- spite the common understanding of piracy as hostis humani generis, pirates were ini- tially not viewed by the Romans as robbers or brigands, but simply as people who lived outside Roman hegemony. The concept did not have legal meaning, and, more specifically, did not criminalize acts of piracy. Nevertheless, the concept evolved and entered the legal vocabularies of England and other European nations. When England became a major maritime power, the concept of piracy was adopted to protect its eco- nomic interests in seeking to dominate global trade.

The limitations of the UNCLOS in addressing the issue of piracy in the Malacca Straits are significant, but that does not necessarily mean that the piracy definition un- der the UNCLOS needs to be revised. As will be discussed later in Chapter 5, there are other legal and practical approaches that can be taken to tackle piracy in the Straits.

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It has been argued in this chapter that historically pirates were not the enemy of all nations, but rather the enemy of particular states. Under the UNCLOS, however, a universal jurisdiction applies to piracy, adopting the concept that pirates are, in fact, the enemy of all. There are 164 countries that have ratified the UNCLOS, implying that there is a general consensus that universal jurisdiction does, indeed, apply to pira- cy.

Despite widespread ratification of the UNCLOS, the historical legal context of piracy remains always under scrutiny. Proposing to revise the piracy definition to include piratical activities occurring in territorial waters will attract more controversy. Indo- nesia and Malaysia, in particular, will probably oppose to refuse expansion of piracy definition, likely seeing it as an attempt to infringe their territorial sovereignty.

To conclude, the three multilateral agreements aimed at combating piracy and mari- time terrorism are not sufficient to resolve the problem of piracy in the Malacca Straits. Each suffers from limitations, including definitional problems and practical problems. National legislation regarding piracy in each littoral state is also not suffi- cient for combating piracy because it fails to make piracy, as defined in article 101 of the UNCLOS, an offence under national laws. The littoral states also have failed to review their national legislation on piracy to ensure that they have established univer- sal jurisdiction over acts of piracy, and that their government institutions have the power and authority to take the actions necessary to fully cooperate with other States in order to suppress piracy.

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CHAPTER 4 STEPS TAKEN TO COMBAT