Piracy may prompt unilateralism

B.A. Hamzah, New Straits Times, Kuala Lumpur

Contrary to reports by the Piracy Centre in Kuala Lumpur, there is no piracy -- only sea robberies in the Straits of Malacca.

The Piracy Centre of the London-based International Chamber of Commerce has been churning out reports of sea robberies in the Straits of Malacca and classifying them as piracy. The classification is contrary to international law.

The Piracy Centre labels an incident against a ship or crew within national waters, during anchor or in port, as piracy.

International law defines piracy as any illegal act of violence or detention, or any act of depredation committed for private ends by the crew or passengers of a private ship or aircraft and directed on the high seas against a ship, aircraft, persons or property in a place outside the jurisdiction of any state.

The high seas is defined under international law as the seas outside national jurisdiction, "not included in the exclusive economic zone, in the territorial sea, or in the internal waters of a state, or in the archipelagic waters of an archipelagic state".

Indonesia is an archipelagic state. The straits is also within the territorial sea of Malaysia. Under international law the crime of piracy cannot take place in waters within national jurisdictions. Piracy can only be committed on the high seas.

Under treaty law (1982 Unclos) foreign ships have the right of transit passage in straits used for international navigation. But the jurisdiction to enforce law in these straits remains at all times with coastal states -- like Indonesia and Malaysia.

But for the legal results that follow, for many, it may mean nothing whether the incident is labeled sea robbery or piracy.

Treating sea robbery as piracy has far-reaching implications for coastal states. It raises the issue of exclusive jurisdiction -- the competence to enforce national laws.

It also raises unnecessary alarms about navigational safety and belittles the enforcement capabilities of and efforts by, Malaysia and Indonesia, for example, to police the straits.

Some maritime powers have been searching for a pretext to exercise jurisdiction in strategic waterways like the Straits of Malacca. Piracy will give them a perfect excuse to intervene.

Talk of maritime terrorism including pirates using ships as floating bombs is scary in the face of sketchy evidence. A recent comment in Foreign Affairs (March/April 2005) finds "the so- called al-Qaeda merchant fleet has been a staple of threat scenarios for even longer than the terrorist-pirate link. But it has little foundation in reality and has never been blamed by authorities for ships stolen on high seas".

The issues in the Straits of Malacca are no longer related to international law but increasingly to geopolitics. It is about maritime powers imposing their will on coastal states and their excuse to enforce jurisdiction in national waters.

Under international law, piracy is a universal crime -- a crime against humanity -- whereby universal jurisdiction applies.

I suspect talk of instability, terrorism and bomb-floating vessels are excuses by some maritime powers and institutions to claim a stake in the governance of the strategic waterway.

I also suspect that all the loose talk is intended to provide legitimate excuses for external powers to intervene with their navies to rewrite the rules of engagement in straits used for international navigation.

On the point of maritime terrorism as the current equivalent of piracy, a noted authority on international law cautions that "Terrorism cannot by traditional forms of argument be shown to be criminal whatever its quality might be in the municipal law of the state or groups of states the terrorists are trying to destabilize".

By redefining sea robbery in the Straits of Malacca as piracy, any state can enforce jurisdiction in the straits, arrest and charge criminals as pirates for their courts to impose the penalties.

My advice to those who fear "pirates" in the straits is that they should bypass it; use instead alternative routes like the Straits of Sunda and Lombok or, in future, the proposed pipelines across the Isthmus of Kra.

Sadly, after Sept. 11, even myths and half-truths are recycled to feed an angry world for strategic purposes until they become self-fulfilling.

It would not surprise me if a big accident were to be staged in the Straits of Malacca by those with sinister designs to provide evidence, to legitimize fears for their impending threat scenarios.

Indonesia and Malaysia must resist efforts by outsiders to destabilize the strategic waterway. They should not give credence to any self-prophecy with built-in ulterior motives.