Piracy may prompt unilateralism

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.