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Discussions
Session 4: Review Session
Taking Action against Piracy
4-1. UNCLOS contains provisions to enable every country to suppress piracy, but in many cases countries have not taken the follow-up measures necessary to punish this crime. Japan is no exception and so is in no position to take legal action. Moreover, some flag states still remain that have not instituted laws to punish pirates who fall under their jurisdiction.
Under the Rome Convention, Japan cannot take steps against
piracy unless Japanese nationals are directly involved. Without the appropriate
follow-up in the penal code regarding crimes committed outside the national territory,
Japan can do nothing about piracy even if it ratifies the Convention. China has
ratified the Convention and has seized and punished pirates on two or three occasions.
One pirate vessel, the Alondra Rainbow, was captured off the west coast of India.
4-2. Many countries are unable to punish piracy because they have not yet passed the necessary enabling legislation. China is one of these. In China, especially in the southern area, corruptions in government officials were common for long time. There was a famous case that one of the pirates was in fact a customs official. Recognizing the seventy of this problem, the authorities began punishing such culprits severely.
4-3. At a conference in Tokyo two years ago, it was noted that Japan has no laws to deal with piracy. Two years later, nothing has changed. It would be interesting to know whether Indonesia and the Philippines have taken any new steps.
4-4. Indonesia's legal argument asserts that a clear distinction must be drawn between armed robber and piracy. To the Indonesians, piracy is a crime committed on the high seas, whereas armed robbery is a crime committed in territorial seas or archipelagic waters. In either case, however, laws exist for the culprits to be punished in Indonesia. The real problem is he ability to execute these laws effectively at the local level. Lack of necessary skills and shortages of equipment, funding and manpower are endemic. Indonesia's inefficacy in coming to grips with piracy (or armed robbery) is not due to any lack of legal foundation.
4-5. The Philippines employs two separate penal codes to deal with crimes at sea. Conditions differ in each case and do not always accord with the conditions of piracy. In some cases, legal action is impossible even when an action is legally deemed an act of piracy. For example, many cases exist where armed robbery takes place in territorial waters but the authorities are unable to do anything about it. Political issues are involved, and in the final analysis the pirates have powerful backers on their side. Clearly, some extremely fundamental problems remain to be resolved in the Philippines.
4-6. Acts of piracy occur inside the territorial waters of each country. These problems need to be addressed by the coastal states concerned as part of the effort to maintain order within their own countries. However, if coastal states lack the resources or skills to suppress piracy on their own, the problems of how to protect ships passing through those territorial waters and to tackle the problem of piracy remain.
4-7. In Japan, a clear need to punish acts of piracy exists, yet no action is being taken to establish measures against piracy. It is unclear whether specific laws covering piracy ever existed in Japan. Certainly the penal code under the Meiji constitution was based on "passive individualism", so acts of piracy on the high seas against Japanese vessels would likely have been punishable under the Japanese penal code. At any rate, further cooperation with Indonesia and the Philippines on safe passage, such as a cooperation pact on piracy or infrastructure to support shipping through international channels, will have to be pursued.
4-8. We believe there are two key aspects to the problem of piracy. The first involves piracy that occurs in bodies of water under the jurisdiction of a single country. In this case the term "armed robbery" is normally used. The second aspect is piracy on the high seas. In the former case, problems arise when the country in which the crime occurs is unable to take action against the armed robbery, for whatever reason. We believe that the most promising avenue for solutions in this case is to encourage greater international and regional cooperation in enforcement.
Another point to be made clear is that pirates are quite
knowledgeable about the new order of the seas-perhaps they know it better than
we do. They are well aware, for example, that when they cross from seas under
one country's jurisdiction to those under another's, they cut short their pursuers'
ability to continue the chase. Though we are bound to the terms of UNCLOS, pirates
are not, and indeed they use this asymmetry to their advantage. This is an enormous
problem, particularly in areas where territorial waters are adjacent In areas
where the geography is complex, such as the Straits of Malacca, the place to which
pirates will attempt to flee is other country's territorial waters. Instead, they
will flee into another country's waters, sally from waters under one country's
jurisdiction into those of another's, or conduct their illicit trade in the waters
of one country before escaping into another country's seas. Patterns such as these
are especially prevalent when dealing with international crime syndicates.
Therefore a different form of regional cooperation is
needed. In waters where piracy is rife, such as the Straits of Malacca, such cooperation
is already in practice. Unfortunately present levels of cooperation are not yet
adequate. This is because collaboration of this kind is a delicate matter of respecting
each other's sovereignty, not simply a straightforward program of capacity building.
Aggressive anti-piracy measures in the seas of East Asia
began in 2000. In that year a conference in Tokyo of naval and police authorities
from each country was convened to discuss measures to combat this menace. Subsequently,
expert meetings of specialists from each country's police authorities were held
on two separate occasions. I understand that, in parallel to these developments,
efforts are ongoing at the diplomatic level to hammer out a regional accord on
piracy. In light of these developments, it would certainly be unfair to say that
nothing is being done, but few tangible results have been achieved in terms of
the problems under individual nations' jurisdictions and regional cooperation,
and much more collaborative effort is needed.
Another point we would like to emphasize is that international
collaboration is heavily dependent on conditions within each participating country.
Pressing doggedly ahead while ignoring those conditions is a recipe for deadlock.
For example, if Japan were to undertake collaboration with one of its neighbors
in East Asia, her police authorities would be able to cooperate with those of
other nations. However, if those authorities are military or naval in character,
Japan would be constrained by restrictions on ODA and by current interpretations
of her constitution. Either the form of collaboration or the counterparts involved
would have to be changed, or great obstructions would result. In some countries
the navy plays an exceedingly powerful role, so collaboration is often carried
out between navies. In deciding how to proceed, it would be best to recognize
a distinction between general problems and the problems presented by individual
cases.
Various Initiatives and Appeals
4-9. In juxtaposition to the various claims on maritime territories between China and Japan is a mechanism between the two nations for reporting and obtaining agreement on academic and scientific surveys. Even if China and Japan are not yet able to agree on the delimitation of the continental shelf and between their respective EEZs, they have been able to agree to conduct scientific surveys. The two countries have agreed to notify each other in advance of such survey activities. In these matters it is especially important to proceed step by cautious step when problems arise. Many large and seemingly intractable problems, including territorial disputes over islands, may be solved in the course of this gradualist process.
One crucial element in obtaining lasting solutions to
these disputes is to hold optimistic plans for the future. Of course, the value
of such plans depends heavily on their feasibility. A common heritage is helpful
in this effort, but whose job is it to manage this common heritage? Building nations
that can manage such a common heritage and creating institutions for this purpose
is extremely difficult under the modem system of nation-states.
Thanks to the practical efforts made by the international
community to enforce the rights and jurisdictions provided by UNCLOS, countries
have aligned their efforts to protect aquacultural resources and the marine environment,
thereby generating new recognition of the jurisdiction of coastal states in these
areas. Countries have chosen to consider the interests of the international community
at the same time as they protect their own interests as sovereign nations. The
hard-won successes already achieve testify to the wisdom of adopting a patient,
step-by-step approach in this delicate process.
4-10. MIMA is conducting a track-2 initiative to hammer out an agreement between Malaysia and Indonesia on the Prevention of Incidents at Sea Agreement (INCSEA). Although this effort is still in the initial stages, considerable momentum has built up, with key naval personnel enlisted on both sides. Progress is excellent, and the two sides signed an agreement in Jakarta in 2002. The success of the INCSEA process attests to the value of promoting mechanisms such as these.
4-11. In Japan, awareness of the ocean and its attendant issues is low. Even lawmakers and others who should be knowledgeable evince little knowledge or concern. We believe that activities to raise awareness are sorely needed in Japan.
4-12. We need to understand the oceans better and learn to appreciate their importance: this is a message that must be broadcast far and wide. To achieve this objective, media participation is essential. We propose that concrete measures be taken to enlist the cooperation of major media outlets. American news sources such as CBS are much preoccupied with military matters nowadays, but few commentators-even those reporting on naval maneuvers-have appreciable naval experience themselves. Even the populations of great seafaring nations are remarkably poorly informed about the sea and maritime issues. Perhaps issues of maritime law are too dry to satisfy the modem media's thirst for sensation. Raising sufficient awareness will require no small amount of effort.
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