Fifty-sixth session Agenda, 2001: Oceans and the law of the sea - Report of the Secretary-General
V. Crimes at sea
Section A. Piracy and armed robbery
A. Piracy and armed robbery against ships
174. Acts of piracy and armed robbery against ships
represent a serious threat to the lives of seafarers, the
safety of navigation, the marine environment and the
security of coastal States. They also impact negatively
on the entire maritime transport industry, leading, for
example, to increases in insurance rates and even the
suspension of trade. For example, Royal Dutch/Shell
operations suspended deliveries in January 2001 to an
area in Papua New Guinea where armed robbers had
attacked one of its oil tankers. It said it was seeking
strong assurances from the authorities that such
criminal actions would reoccur.
1. Extent of the problem — reports on incidents
175. Reports on incidents of piracy and armed robbery
against ships are received by the International
Maritime Organization and the International Maritime
Bureau of the International Chamber of Commerce and
are issued periodically by those organizations.
176. The IMO Secretariat stated that, based on the
periodical reports and information it had provided, the
Maritime Safety Committee at its 73rd session had
expressed deep concern at the number of acts of piracy
and armed robbery against ships reported to the
organization during the first 10 months of 2000: a total
of 314, representing an increase of 27 per cent over the
figure for the same period in 1999. The Committee also
noted that the total number of reported incidents of
piracy and armed robbery against ships from 1984
(when IMO began compiling relevant statistics) to the
end of October 2000 had increased to 2017. From 1
January to 31 October 2000 the number of reported
incidents had decreased from 32 to 23 in West Africa.
In all other regions there had been an increase of
incidents reported: in East Africa, from 14 to 15; in
Latin America and the Caribbean, from 29 to 30; in the
South China Sea, from 110 to 112; in the Indian Ocean,
from 28 to 75; and in the Straits of Malacca, from 29 to
58.
177. Most of the attacks reported had occurred in
territorial waters while the ships were at anchor or
berthed. The Maritime Safety Committee was
particularly concerned that, during the same period, 9
crew members had been killed, 5 had been reported
missing and 22 had been injured; and that, in addition,
one ship had sunk and two had been hijacked.
Therefore, the Committee, endorsing the remark of the
Secretary-General of IMO that this was a very
alarming trend which needed to be addressed, once
again invited Governments of flag States, port States
and coastal States as well as the industry to intensify
their efforts to eliminate these unlawful acts.
178. According to the report of the International
Maritime Bureau for 2000, the annual number of
incidents of piracy and armed robbery against ships
had risen by 57 per cent as compared with 1999 and
was nearly four and a half times as high as that of
1991. A total of 469 attacks on ships either at sea, at
anchor or in port were reported to the Bureau during
2000; there were 307 instances of ship boardings and a
total of 8 ship hijackings. The violence used in the
attacks had also risen to new levels, with 72 seafarers
killed and 99 injured, up from 3 killed and 24 injured
the previous year. The Bureau believes that a large
number of attacks remain unreported and that it
expects to receive reports of additional incidents
relating to 2000 in the coming months. More than a
hundred incidents occurred in Indonesia. Elsewhere,
the figures compiled by the Bureau show an alarming
rise in incidents of piracy and armed robbery: in the
Straits of Malacca, 75, compared with 2 in 1999; in
Bangladesh, 55, compared with 25 in 1999; in India,
35, compared with 14 in 1999; in Ecuador, 13,
compared with 2 in 1999; and in the Red Sea, 13,
compared with none in 1999. One of the few areas to
see a downturn in activity was the Singapore Straits (5
incidents, down from 14).48 While the majority of the
attacks had been carried out while the ships were
berthed or anchored, all but one occurring in the Straits
of Malacca had involved ships that were steaming, thus
increasing the risk of a collision and possible pollution
of the marine environment.
179. The International Maritime Bureau has identified
four types of attacks carried out within the past decade,
varying very much which are associated primarily with
the region in which they occur. The first type occurs
mainly in Asia, where ships are boarded with a
minimum of force unless resistance is offered and cash
is taken from the ship’s safe. India told MSC that 90
per cent of the reported incidents along the Indian
coast related to petty thefts. The second type occurs
mainly in South America or in West Africa, where
ships are attacked by armed gangs while berthed or at
anchor. In these cases, there is a high degree of
violence and the targets are cash, cargo, personal
effects, ship’s equipment, in fact anything which can
be removed. The third type occurs mainly in South-
East Asia, where ships are hijacked and the entire
cargo and/or sometimes the vessel itself are stolen. The
crew is occasionally set adrift in boats, thrown
overboard or shot dead. The fourth type of attack is
described as a type of maritime attack with military or
political features.
180. Hijackings, according to the Bureau, are the work
of organized criminals since they require a degree of
organization that only the international crime
syndicates can muster. A hijacked ship is given a new
name, repainted and given false registration papers and
bills of lading, thereby creating a “phantom ship”. The
vessel is often put in to a port where the false identity
of the vessel and cargo may escape detection. Even
when identified, the hijacking gangs have been known
to bribe local officials to allow them to sell the cargo
and leave the port. Ships are sold and often end up in
shipbreaking yards. The Bureau reports that there is
evidence that organized crime is also backing some of
the bands of pirates that prey on shipping in the coastal
waters of Malaysia, Indonesia, the Philippines and
other countries.
181. The Bureau does not draw a clear distinction in
its reports between an incident of petty theft, armed
robbery or piracy. It defines piracy for statistical
purposes as “an act of boarding or attempting to board
any ship 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”. The definition covers
actual or attempted attacks, whether the ship is berthed,
at anchor or at sea. IMO in its reports distinguishes
between piracy and armed robbery, but not between
petty theft and armed robbery (see para. 197).
182. The already alarmingly high number of acts of
piracy and armed robbery against ships reported to
IMO and the Bureau during 2000 probably does not
even represent the true figure, as also noted by the
Bureau in its annual report (see para. 178). In 1998, the
Secretary-General of the United Nations, in his annual
report to the General Assembly at its fifty-third session
(see A/53/456, paras. 147 and 148), stated that the
International Maritime Bureau and the International
Transport Workers’ Federation had expressed the view
that official reports accounted only for 50 per cent of
the attacks, as shipowners were hesitant to report an
incident for fear of having their ship immobilized
during an enquiry (which could cost them up to
$10,000 a day) and losing clients as a consequence.
The insurance companies were said to settle cases
discreetly and to simply increase premiums in high-risk
regions. Reports of incidents would then be sent long
after the incident had occurred, thus frustrating the
conduct of investigations by coastal States into
incidents reported in their waters. While the situation
has improved somewhat since 1998, under-reporting of
incidents still remains a serious problem.
2. Action at the global level
183. The problem of piracy and armed robbery against
ships has been brought to the attention of a number of
forums, most notably the United Nations General
Assembly and IMO, as well as the first meeting of the
Consultative Process (see A/55/274, part A, issue K,
paras. 45-47; part B, para. 37; and part C, para. 2 (b)),
and the Meeting of States Parties to UNCLOS
(SPLOS/31, para. 64).
(a) General Assembly
184. The Secretary-General of the United Nations
drew attention to the problem of piracy and armed
robbery against ships for the first time in his annual
report on law of the sea to the General Assembly at its
fortieth session in 1985 (A/40/923, para. 40) and has
been including a separate section on the issue in his
annual report on oceans and the law of the sea since
1993. The General Assembly addressed the problem of
piracy and armed robbery against ships for the first
time in its annual resolution on oceans and the law of
the sea at its fifty-third session in 1998 (see resolution
53/32).
185. At its fifty-fifth session, the General Assembly
had before it a note by the Secretary-General
transmitting a copy of the letter addressed to him by
the Secretary-General of IMO on 8 June 2000
(A/55/311, annex). The letter reported that MSC at its
72nd session, while acknowledging the positive action
of the General Assembly and being appreciative of its
support (as clearly demonstrated in resolution 54/31),
was of the opinion that other bodies within the United
Nations system might be able to provide additional
assistance which would ensure that seafarers and ships
could engage safely and peacefully in international
maritime activities.
186. In its resolution on the item “Oceans and the law
of the sea” adopted at its fifty-fifth session, the General
Assembly noted the IMO Secretary-General’s letter,
and, as it had done the previous year in resolution
54/31, once again urged all States, in particular, coastal
States, in affected regions to take all necessary and
appropriate measures to prevent and combat incidents
of piracy and armed robbery at sea, including through
regional cooperation, and to investigate or cooperate in
the investigation of such incidents wherever they
occurred and bring the alleged perpetrators to justice in
accordance with international law. The Assembly also
repeated its call to States to cooperate fully with IMO,
including by submitting reports on incidents to the
organization and by implementing the IMO guidelines
on preventing attacks of piracy and armed robbery. It
furthermore once again urged States to become parties
to the Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation and its
Protocol51 and to ensure its effective implementation.
The General Assembly moreover recommended that
coordination and cooperation in combating piracy and
armed robbery at sea should be one of the main areas
of focus of consideration at the second meeting of the
Consultative Process.
(b) Measures taken by IMO, as reported by the
IMO Secretariat
187. The IMO Secretariat reported that MSC at its
73rd session had taken note of General Assembly
resolution 55/7, in particular in connection with the
need to take appropriate measures to prevent and
combat incidents of piracy and armed robbery at sea.
The aim of its contribution was to provide
comprehensive information on the work being
undertaken by IMO in this area.
Background
188. In 1993, the IMO Assembly, mindful of the duty
of States to cooperate in the repression of piracy as
stipulated in article 100 of UNCLOS, adopted
resolution A.738(18) on measures to prevent and
suppress piracy and armed robbery against ships. In the
resolution Governments were urged to recommend to
vessels registered under their flags to take
precautionary measures to avoid piratical attacks and to
adopt procedures to be followed if they occurred,
including in particular reporting immediately to the
nearest or other appropriate rescue coordination centre
and, if possible, to the coastal State as well as to the
flag State concerned any such attacks or attempted
attacks; and to establish and maintain close liaison with
neighbouring States to facilitate the apprehension and
conviction of all persons involved in piratical attacks.
189. The IMO Assembly also urged Governments of
coastal States to make arrangements with coast earth
stations to ensure prompt delivery of reports of
piratical attacks to the authorities concerned. It invited
Governments to consider using surveillance and
detection techniques and acquiring the capability to
prevent and respond to piratical attacks.
190. In the same resolution IMO invited Governments
to develop and continue cooperation agreements with
neighbouring States, as appropriate, including the
coordination of patrol activities and of the response by
rescue coordination centres. Governments were
requested to instruct national centres or other agencies
involved, on receiving a report of an attack, to
promptly inform the local security forces so that
contingency plans might be implemented and to warn
ships in the immediate area of the attack.
191. The IMO Assembly also requested the Secretary-
General of IMO to seek means of providing support
from donor countries and international financial
institutions to Governments requesting technical and
financial assistance in the prevention and suppression
of piratical attacks. Finally, the Maritime Safety
Committee was enjoined to keep the issue under
continuous review and it has accordingly been included
in IMO’s Long-Term Work Plan.
192. IMO reported that, on the basis of resolution
A.738(18), it had developed a comprehensive antipiracy
strategy consisting of compilation and
distribution of periodical statistical reports, piracy
seminars and field assessment missions to regions
affected by piracy and the preparation of a code of
practice for the investigation and prosecution of the
crime of piracy and armed robbery against ships.
Periodic statistical reports
193. IMO compiles and distributes monthly, quarterly
and annual reports on piracy and armed robbery against
ships submitted by Governments and international
organizations. Monthly reports list all incidents
reported to the organization. Quarterly reports are
composite reports accompanied by an analysis, on a
regional basis, of the situation and an indication as to
whether the frequency of incidents is increasing or
decreasing and advising on any new feature or pattern
of significance. Information on the number of incidents
reported to IMO during the first 10 months of 2000 is
provided in paras. 176-177.
Seminars, workshops and missions
194. IMO arranges seminars and workshops to explain
the problem of piracy and armed robbery and the
organization’s recommendations on how to deal with
them. In addition, it carries out field missions to assess
the actions Governments take to implement the inputs
of the anti-piracy projects. Mission members examine,
together with the responsible governmental
representatives, what measures the national authorities
responsible for anti-piracy activities have taken to
implement the relevant IMO guidelines, where such
measures have not been successful and what has
impeded their implementation and, eventually, how
IMO might assist in overcoming any difficulties
encountered in the process.
195. Such missions also include advisory services and
“tabletop” exercises at the national level to assess and
evaluate the results of previous relevant IMO activities.
IMO noted that seminars, workshops and missions
could only be organized if Governments and
governmental and non-governmental organizations
provided the necessary financial support for them.
Preparation of a code of practice for the
investigation and prosecution of the crime of
piracy and armed robbery against ships
196. MSC at its 73rd session approved the IMO draft
Code of Practice for the Investigation of the Crimes of
Piracy and Armed Robbery Against Ships.52 The Code
will be considered for adoption by the IMO Assembly
at its 22nd session to be held from 19 to 30 November
2001.
197. The purpose of the draft Code of Practice is to
provide IMO members with an aide mémoire to
facilitate the investigation of the crimes of piracy and
armed robbery against ships. The draft Code adopts the
definition of piracy contained in article 101 of
UNCLOS. Armed robbery against ships is defined as
any unlawful act of violence or detention, or any act of
depredation, or threat thereof, other than an act of
piracy, directed against a ship or against persons or
property on board, within a State’s jurisdiction over
such offences. The draft thus combines the
geographical scope of jurisdiction over piracy, as laid
down in UNCLOS with the jurisdiction over unlawful
acts, as laid down in the Convention for the
Suppression of Unlawful Acts against the Safety of
Maritime Navigation (1988 SUA Convention) and its
Protocol (SUA Protocol).
198. The draft Code includes a recommendation that
States take the necessary measures to establish their
jurisdiction over the offences of piracy and armed
robbery against ships, including adjustment of their
legislation, if necessary, to enable the apprehension
and prosecution of persons committing such offences.
States are explicitly encouraged to ratify, adopt and
implement UNCLOS and the SUA instruments.
199. In order to encourage masters to report all
incidents of piracy and armed robbery against ships,
the draft Code states that coastal and port States should
make every effort to ensure that the masters and their
ships are not unduly delayed or burdened with
additional costs related to such reporting. Coastal
States are encouraged to enter into bilateral or
multilateral agreements to facilitate the investigation of
piracy and armed robbery against ships.
200. The draft Code also contains provisions for the
specific training of investigators intervening in acts of
piracy or armed robbery during or after the event. It
further lays down the main principles for an
investigative strategy and lists the responsibilities of
the investigators in such matters as preservation of life,
prevention of the escape of offenders, warnings to
other ships, protection of crime scenes and the securing
of evidence. A final chapter on the investigation lists
measures to be taken to establish and record all
relevant facts, record individual witness accounts,
conduct detailed forensic examinations of scenes and,
searches of intelligence databases and oversee the
distribution of information and intelligence to
appropriate agencies. In accordance with the principle
of proportionality informing the draft, action to be
pursued should be proportionate to the crime
committed and consistent with the laws that were
violated.
(c) “Phantom ships”
201. IMO also reported that, in order to reduce
hijackings and the number of “phantom ships”, i.e.,
ships with fraudulent registration, certification and
identification, MSC has begun the consideration of a
draft IMO Assembly resolution encouraging flag States
to ensure that proper checks were made when
registering a ship. The Subcommittee on Flag State
Implementation at its 9th session (February 2001),
prepared a draft resolution on “Measures to prevent the
registration of ‘phantom ships’”, to be submitted for
adoption by the IMO Assembly at its 22nd session
(November 2001).
3. Action at the regional level
202. The strengthening of regional cooperation is
imperative to prevent and respond effectively to
incidents of piracy and armed robbery against ships. In
this regard, the IMO regional seminars and workshops
for the South and Central American and Caribbean
region (Brazil, October 1998), the South-East Asian
region (Singapore, February 1999), the West African
region (Nigeria, October 1999) and for selected
countries in the Indian Ocean region (India, March
2000) had proved very valuable not only in reviewing
the effectiveness of any countermeasures the
participating countries had put in place, but also for
regional cooperation in general. Since the conclusion
of the IMO seminars and workshops, efforts have
continued, in particular, among States in South-East
Asia, to advance regional cooperation. Two high-level
international conferences on combating piracy and
armed robbery were held in Tokyo in March and April
2000 and resulted in the endorsement of the Tokyo
Appeal and the adoption of the “Asia Anti-Piracy
Challenges 2000”, and a Model Action Plan.53 An
ASEAN Regional Forum Workshop on Anti-Piracy was
held in India in October 2000 and an Experts Meeting
on Combating Piracy and Armed Robbery against
Ships was held in Malaysia in November 2000. The
South-East Asian Programme in Ocean Law, Policy
and Management (SEAPOL) Inter-Regional
Conference on Ocean Governance and Sustainable
Development in the East and Southeast Asian Seas:
Challenges in the New Millennium (Thailand, 21-23
March 2001) was to devote one of its sessions to piracy
and law enforcement, to discuss, inter alia, legal issues
in piracy control, and piracy and the challenge of
cooperative security and enforcement policy.
203. Cooperation in other regions is also being
pursued. The High-level Meeting of five Coast Guard
Agencies in the North-west Pacific Region was held in
December 2000 to discuss ways of combating the illicit
traffic in drugs and guns and piracy in the region.
According to the Japanese news service Kyodo,
national coast guard chiefs from Japan, the Republic of
Korea, the Russian Federation and the United States
attended the meeting.
204. Some of the main problem areas in dealing with
pirates and armed robbers revealed as a result of the
IMO expert missions54 and the regional seminars and
workshops in Brazil and Singapore were: the current
economic situation in the regions concerned; certain
resource constraints on law enforcement agencies; lack
of communication and cooperation between the
agencies involved; the length of the coastal State’s
response time following the affected ship’s report of an
incident; general problems of ship reporting; timely
and proper investigation into reported incidents; the
prosecution of pirates and armed robbers when
apprehended; and lack of regional cooperation. The
ASEAN Regional Forum (ARF) Workshop in October
2000 concluded that there was an urgent need for close
coordination and cooperation among the maritime
authorities and the law enforcement agencies of the
States concerned to effectively curb piracy and armed
robbery against ships; that piracy posed a transnational
threat necessitating bilateral and regional arrangements
among the ARF member States to unify measures to
combat piracy; and that efficient exchange of
information and intelligence was necessary for the
successful conclusion of the investigation and
prosecution of apprehended pirates.55 The participants
at the experts meeting in Malaysia stressed the
importance of the last-named issue and agreed to
pursue the matter further; they also considered that it
was also necessary to standardize the format for ships’
reporting to enforcement agencies, to enable immediate
action by the enforcement agencies.
205. Several of the regional meetings also discussed
and agreed to further pursue the working definitions of
piracy and armed robbery against ships. In this regard,
it should be noted that piracy is defined in article 101
of UNCLOS and armed robbery against ships has
recently been defined in the IMO draft Code of
Practice (see para. 197).
4. Recommended actions for Governments and the
industry
206. An act of piracy or armed robbery against ships
affects different national interests: that of the flag State
of the ship, the State in whose maritime zone the attack
took place, the State of suspected origin of the
perpetrators, the State of nationality of persons on
board, the State of ownership of cargo, and maybe also
the State where the crime was prepared, planned,
directed or controlled. In the Tokyo Appeal it was
acknowledged that the issue of piracy and armed
robbery against ships could not be resolved if the
relevant authorities, the flag States and other
substantially interested States and coastal States/port
States, each took measures independently based on
their individual positions; it could be tackled
effectively only when such parties mutually
coordinated and cooperated in a manner transcending
their individual positions.
(a) Recommended actions for shipowners, ship
operators, shipmasters and crews
207. Preparedness and action by shipping companies
themselves is fundamental to the prevention of piracy
and armed robbery against ships, for which IMO, the
International Maritime Bureau, the Oil Companies
International Marine Forum, the International Chamber
of Shipping and the International Shipping Federation
have all issued guidance materials.57 The IMO
Guidance to Shipowners and Ship Operators,
Shipmasters and Crews on Preventing and Suppressing
Acts of Piracy and Armed Robbery against Ships (MSC
Circular 623/Rev.1, dated 16 June 1999) outlines steps
that should be taken to reduce the risks of an attack and
possible responses to them. It states that ships need to
have a ship security plan or an action plan detailing the
actions to be taken in case of an attack. The MSC
Circular highlights, inter alia, the vital need to report
attacks, successful as well as unsuccessful ones, to the
authorities of the relevant coastal State, generally the
Rescue Coordination Centres, and to the ships’ own
maritime administration. Such reports should be made
as soon as possible to enable necessary action to be
taken. The Model Action Plan adopted at the Tokyo
Conference (see para. 202) also underlined the
importance of filing both immediate and post-attack
reports. It further proposed the re-enforcement of selfprotection
measures on board ships, including the
examination of the use of ship-position reporting
technology and enhanced defensive equipment. The
International Maritime Bureau has said that shipowners
should consider the installation of SHIPLOC, a lowcost
vessel tracking system, which claims to be capable
of instant location of a vessel.
(b) Recommended actions for Governments
208. Most attacks against ships occur in the territorial
sea and therefore do not constitute piracy as defined in
UNCLOS. According to the International Maritime
Bureau, “what makes piracy a tempting crime is the
difficulty of effective law enforcement, and the
unwillingness of many countries to prosecute pirates
caught in their own territorial waters for acts of piracy
committed under another country’s jurisdiction.” The
Bureau uses the expression “piracy” also to describe
acts of armed robbery against ships.
(i) National action plans
209. The IMO Recommendations to Governments for
Preventing and Suppressing Piracy and Armed Robbery
against Ships (MSC Circular 622/Rev.1, dated 16 June
1999) set out the necessary actions to be implemented
by Governments within areas identified as affected by
acts of piracy and armed robbery. Some of these
recommendations are also included in the draft Code of
Practice. Coastal States/port States are recommended to
develop action plans for preventing an attack as well as
steps to take in the event of an attack. Because of the
possibility of collisions or groundings as a result of an
attack, coastal/port States are also recommended to
develop plans to counter any subsequent oil spills or
leakages of hazardous substances the ships may be
carrying. This is especially important in areas of
restricted navigation, for example, in straits used for
international navigation, such as the straits of Malacca
and Singapore. It should be noted that States may
already have adopted measures for dealing with a
pollution incident, either at the national level or in
cooperation with other States, in implementation of the
International Convention on Oil Preparedness,
Response and Cooperation.
(ii) Rapid responses to reported incidents
210. The Model Action Plan adopted at the Tokyo
Conference (see para. 202) proposed, inter alia, that
each State should establish a system for
communication and collaboration between relevant
authorities within a Government to ensure that
comprehensive and functional measures are taken in
response to reports of incidents of piracy and armed
robbery against ships.
211. In order to ensure efficient communication and
cooperation between various agencies and a rapid
response after an incident has been reported to the
coastal State, including the promulgation of threat
warnings, MSC Circular 622/Rev.1 recommends that
States adopt an incident command system and
incorporate therein existing mechanisms for dealing
with other maritime security matters, e.g., illicit traffic
in narcotic drugs and terrorism, to enable the efficient
use of limited resources. It is also recommended that
States develop procedures for rapidly relaying alerts
from the receiving communication centre to the entity
responsible for taking action. The IMO regional
seminar and workshop held in India in March 2000
highlighted the potential use of vessel traffic separation
(VTS) information in piracy and armed robbery attack
situations. It also recommended that IMO should
develop harmonized procedures and guidelines on
communication means for alerting other ships in the
area.
(iii) Investigations of incidents and exchange of
information/intelligence
212. MSC Circular 622/Rev.1 and the draft Code of
Practice state that, to encourage masters to report all
incidents, coastal States should make every effort to
ensure that masters and their ships are not unduly
delayed. They should clearly establish an entity
responsible for conducting investigations into reported
incidents. The IMO draft Code lays down the
principles for an investigative strategy. Coastal States
are encouraged, where appropriate, to enter into
bilateral or multilateral agreements to facilitate the
investigation of piracy and armed robbery.
213. The draft Code also provides that it is important
to involve relevant organizations (e.g., Interpol,
International Maritime Bureau) at an early stage, where
appropriate, to take account of the possibility that
transnational organized crime may be involved.
Additionally, an important product of an effective
investigation, even if it does not lead to any arrests,
should be the generation of intelligence, and systems
should be in place to ensure that potentially useful
intelligence information is disseminated to all
appropriate parties. The Model Action Plan adopted at
the Tokyo Conference proposed the establishment of an
international network for the exchange and analysis of
information. It was deemed important that in both
intelligence and operational terms piracy should not be
viewed in isolation, as pirates are most likely involved
in other crimes, such as smuggling of migrants and
illicit traffic in narcotic drugs. Anti-crime measures
should be linked to minimize duplication of efforts.
(iv) Bilateral/regional/multilateral cooperation
214. MSC Circular 622/Rev.1 recommends that States
sharing borders in areas threatened by piracy and
armed robbery establish bilateral/regional cooperation
arrangements to provide, inter alia, for the coordination
of patrol activities by both ships and aircraft. Further
development of such cooperation may involve an
agreement to facilitate coordinated response at the
tactical as well as the operational level. Such an
agreement would specify how information would be
disseminated; establish a regional incident command
system; set policies for joint operations and entry and
pursuit into each others territorial seas; establish links
between the entities involved in all maritime security
matters, etc. An example of such a regional agreement
is appended to the Circular.
215. Cooperative arrangements may also be
established with States outside the region, either at the
bilateral level (a recent example includes an offer by
Sweden to lend Malaysia four assault boats to help
strengthen security in its waters)58 or at the multilateral
level. For example, Japan’s coast guard patrol vessels
recently conducted joint exercises with the maritime
authorities of India and Malaysia, and at the ASEAN
workshop Japan offered to provide training to nonmilitary
personnel.59 According to a 3 January 2001
Kyodo News Service report, “Japan is mulling an antipiracy
pact with [ASEAN] to allow Japanese maritime
authorities to join international patrols in piracy-prone
waters in South-East Asia.” Government sources were
quoted as saying that they expected the Diet to pass
laws to allow direct involvement by Japanese vessels
in anti-piracy patrols and in measures against
smugglers and illegal immigrants.
216. At the IMO regional seminar and workshop held
in India, the IMO Secretariat reported that some
Governments and shipowners had suggested that an
international naval force should be established under
the auspices of the United Nations to patrol danger
areas, while others had urged coastal States to take
more action (MSC 73/14/1, para. 30).
(v) Jurisdiction
217. Both the IMO recommendations in MSC Circular
622/Rev.1 and the IMO draft Code of Practice
recommend to States to take the necessary measures to
establish their jurisdiction over the offences of piracy
and armed robbery against ships, including adjustment
of their legislation, if necessary, to enable
apprehension and prosecution of persons committing
such offences. States are explicitly encouraged in the
draft Code to ratify, adopt and implement the 1988
SUA Convention and its Protocol (SUA Protocol).
218. As States are adjusting their legislation and
establishing their jurisdiction over the offences of
piracy and armed robbery against ships, it is important
for there to be a common understanding among States
of the applicable enforcement rights they have under
international law with respect to acts of piracy and
armed robbery against ships. It is also important for
States to establish effective penalties in their laws.
219. The basic enforcement rights with respect to acts
of piracy are contained in UNCLOS. Piracy is defined
in its article 101, and article 105 grants States universal
jurisdiction on the high seas to seize a pirate ship or
aircraft, or a ship or aircraft taken by piracy and under
the control of pirates, and arrest the persons and seize
the property on board. The same rights apply also in
the exclusive economic zone by virtue of article 58,
paragraph 2. The definition of piracy in UNCLOS
excludes the territorial sea. However, article 25 permits
the coastal State to take the necessary steps in its
territorial sea to prevent passage, which is not
innocent. In accordance with article 27, the coastal
State can exercise criminal jurisdiction against a
foreign ship which engages in an act that disturbs the
peace of the country or the good order of the territorial
sea, or if the consequences of the crime extend to the
coastal State.
220. Armed robbery against ships, as defined in the
draft Code (see para. 197), constitutes an offence under
article 3 of the 1988 SUA Convention, article 6 of
which requires a State party to establish its jurisdiction
when the offence is committed against or on board a
ship flying its flag, in its territory, including its
territorial sea, or by one of its nationals. The 1988 SUA
Convention also permits a State, provided it has
established its jurisdiction and notified IMO thereof, to
exercise its jurisdiction if the offence has been
committed by a stateless person whose habitual
residence is in that State; or if one of its nationals is
seized, threatened, injured or killed; or if the offence
has been committed in an attempt to compel the State
to do or abstain from doing any act. A State must
establish its jurisdiction if the alleged offender is
present in its territory and it has not extradited him to
any of the States parties which have established their
jurisdiction in accordance with the 1988 SUA
Convention.
221. Unlike the 1988 SUA Convention, a State party is
not required under the 2000 United Nations
Convention against Organized Transnational Crime to
establish its jurisdiction if the crime was committed
against the ship or by one of its nationals. It is only
required to take the necessary measures to establish its
jurisdiction when the offence has been committed on
board a ship flying its flag, or in the territory of that
State (article 15). “Territory” is not defined, but is
presumed to include the territorial sea. Article 4 of the
Convention provides that nothing in the Convention
entitles a State party to undertake in the territory of
another State party the exercise of jurisdiction and
performance of functions reserved exclusively for the
authorities of the other State by its domestic law. States
may wish to address the relationship between the
provisions on jurisdiction in the 2000 United Nations
Convention against Organized Transnational Crime and
those in the 1988 SUA Convention and clarify which
provisions they should use to suppress an act of armed
robbery against ships, which also constitutes an
organized crime.
222. In order to promote a common understanding of
States’ enforcement rights under international law and
provide guidance to them in drafting their national
laws, it may be useful to identify the elements which
should be included in national legislation, or,
alternatively, to develop model national laws. The
Comité Maritime International has been working on the
development of a model national law on piracy and
maritime violence and presented the results of its
deliberations to the CMI International Conference in
February 2001.
(vi) Technical assistance
223. Some States may have difficulties in effectively
implementing the recommendations contained in MSC
Circular 622/Rev.1 and the IMO draft Code of Practice
because they lack the necessary equipment and trained
personnel. Lack of equipment, such as patrol boats,
radar and radio communications, and of trained
personnel have been identified as major obstacles to
the functioning of the effective machinery to combat
piracy and armed robbery at sea (IMO regional seminar
and workshop, India, March 2000). The assistance
other States can provide to either individual States or to
an entire region affected by acts of piracy and armed
robbery can take various forms, such as training of
personnel, provision of equipment or funds, etc. As
noted in paragraph 222, assistance to States can also
include legal advice in the drafting of national laws,
either through seminars, or by preparing elements for
inclusion in national laws.
