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Working Paper Series
MARITIME PIRACY: A Hong Kong Perspective
CITY UNIVERSITY OF HONG KONG
May 2011
Alexander McKinnon (Email: [email protected])
About the Working Paper:
This Working Paper is part of a series produced by the Hong Kong Centre for
Maritime and Transportation Law, School of Law, City University of Hong Kong.
The Working Paper Series is designed to stimulate practical and academic research
into specific aspects of Maritime and Transportation Law in Hong Kong. The Series
provides a starting point for more detailed investigation. The Working Papers will be
updated periodically as necessary.
Opinions and comments are invited and encouraged.
© Copyright is held by the School of Law, City University of Hong Kong.
The Working Paper cannot be republished, reprinted, or reproduced in any format
without the permission of the Hong Kong Centre for Maritime and Transportation
Law.
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School of Law
City University of Hong Kong
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Professor Wang Guiguo
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Email: [email protected]
Last updated 13 May 2011
MARITIME PIRACY: A Hong Kong Perspective
1
1. Introduction
The threat of piracy is a major concern of Hong Kong maritime industry groups,
shipowners, ship operators and the wider sector supporting the shipping industry. The
statistics are confronting: in Somalia at present, at least 23 vessels are being held
against the will of the owners and at least 518 hostages (mostly seafarers) are at the
whim of Somali pirates.1 Even more troubling is that the first quarter of 2011 has
been labelled as the worst on official record. Almost three times the number of
attacks occurred as compared to the same quarter in 2010.2 Piracy is also an ever-
present danger in the waters of South East Asia although regional efforts have yielded
positive results. The Marine Department of the Hong Kong Special Administrative
Region (HKSAR), which is responsible for port administration and the Hong Kong
Shipping Register, is active in promoting security arrangements to Hong Kong
registered ships. Notwithstanding this, Hong Kong vessels continue to be at risk and
limitations imposed by international conventions frustrate those closely involved in
the industry.
This paper looks at the approaches taken by Hong Kong in attempting to protect its
ships from piracy. The paper also briefly canvasses the international legal framework
and highlights some controversial and emerging issues.
2. Recent incidents involving Hong Kong ships
As recently as June 2010 in the Gulf of Aden, the Marine Department reported the
unsuccessful attack of a Hong Kong-flagged chemical tanker.3 The incident came
amid the increasing use of “multi-skiff” attacks from vessels disguised as fishing
boats and the capture by pirates of a large chemical tanker. A suspicious fishing
vessel approached a container ship in March 2011 in the Arabian Sea, not far off the
coast of India. After manoeuvring the ship and increasing speed, the master was able
to lose the suspicious boat. This incident was reported to ReCAAP.4 On 13 April
2010 another Hong Kong-flagged container vessel was chased by „suspected pirate
skiffs‟ but the skiff aborted after the master took an evasive manoeuvre and notified
nearby coalition warships.5 A similar attempt by skiffs was reported on 21 March.
6
China has sent a naval unit consisting of two destroyers and a supply ship to the Gulf
of Aden on an anti-piracy mission. Its primary role is „to protect Chinese ships and
crew on board, as well as ships carrying humanitarian relief material for international
organizations, including the World Food Programme.‟7
1 Statistics taken from the EU NAVFOR update dated 3 May 2011 < http://www.eunavfor.eu/wp-
content/uploads/2010/10/Pirated-Vessel-03.05.2011.pdf>. 2 Reported in the International Maritime Bureau‟s first quarter 2011 Piracy Report.
3 Marine Department of the Hong Kong Special Administrative Region, „Somali pirates try new
techniques as monsoon season starts‟ (Security and Quality Advisory No. 10, 29 June 2010). 4 ReCAAP is discussed below. See ReCAAP‟s Information Sharing Centre, „Quarterly Report‟ (1
January – 31 March 2011). 5 Marine Department of the Hong Kong Special Administrative Region, „Recent pirate attempt to
board Hong Kong registered ship‟ (Security and Quality Advisory No. 9, 13 April 2010). 6 Marine Department of the Hong Kong Special Administrative Region, „Recent pirate attempt to
board Hong Kong registered ship‟ (Security and Quality Advisory No. 8, 21 March 2010). 7 Marine Department of Hong Kong, „New Movements Report for Ship on Entering and Leaving the
Gulf of Aden and the Somali Waters‟ (Security and Quality Advisory No. 15, 16 March 2011). It is
MARITIME PIRACY: A Hong Kong Perspective
2
In the Asian region, on 21 February 2011, a Hong Kong bulk carrier was approached
by a speed boat and mother ship in the Bay of Bengal. The master managed to elude
the suspected pirates through evasive manoeuvres. On 30 August 2010, a Hong Kong
registered bulk carrier was boarded by pirates in the vicinity of Pulau Mankai in the
South China Sea. The attack was the sixth such incident in the region in August.8 A
February 2011 report by ReCAAP identified an increase in the number of incidents in
comparison to the same period in previous years.9 ReCAAP immediately orchestrated
a step-up in the number of patrols and warned of the threats.
3. Maritime Piracy and Armed Robbery Against Ships: An Introduction to the Law
Piracy is regarded as an international crime falling under every state‟s jurisdiction
under customary international law.10
This universal jurisdiction is said to arise from
piracy‟s threat to international trade and commerce.11
While piracy under customary
international law remains undefined, the United Nations Convention on the Law of
the Sea (UNCLOS) has largely solved the problem as its definition is regarded as a
reflection of international customary law.12
The United Nations Security Council has often reaffirmed „that international law, as
reflected in the United Nations Convention on the Law of the Sea of 10 December
1982 … sets out the legal framework applicable to combating piracy and armed
robbery at sea‟.13
Article 101 of the UNCLOS provides:14
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or a private aircraft, and
directed-
(i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
noted in the information circular that: „In this context, Chinese ships include ships registered in Hong
Kong.‟ 8 Marine Department of the Hong Kong Special Administrative Region, „Boarding by armed pirates at
2° 59.7‟N 105° 12.2‟E‟ (Security and Quality Advisory No. 13, 2 September 2010). For more
information on security in the region see Kevin X Li and Jin Cheng, „Maritime Law and Policy for
Energy Security in Asia: A Chinese Perspective‟ (2006) 37 Journal of Maritime Law and Commerce
567. 9 The reference period is 1 – 28 February. ReCAAP Information Sharing Centre, „Report for February
2011‟ <www.recaap.org>. 10
Ian Brownlie, Principles of Public International Law (7th
ed, 2008, Oxford University Press) 229. 11
Piracy is attributed jus cogens status. See further Lawrence Kahn, „Pirates, Rovers, and Thieves:
New Problems with an Old Enemy‟ (1996) 20 Tulane Maritime Law Journal 293, 322. 12
See, eg, Milena Sterio, „Fighting piracy in Somalia (and elsewhere): Why more is needed‟ (2010) 33
Fordham International Law Journal 372, 386 and the references therein. 13
SC Res 1897, UNSC, 6226th
mtg, UN Doc S/RES/1897 (30 November 2009). 14
United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833
UNTS 3 (entered into force 16 November 1994). It has 157 signatories and over 160 parties.
MARITIME PIRACY: A Hong Kong Perspective
3
(c) any act of inciting or of intentionally facilitating an act described in subparagraph
(a) or (b).
Other Articles of the UNCLOS require States to cooperate in the repression of
piracy15
and provide for the seizure of a pirate ship and the arrest of the persons on
board.16
The UNCLOS articles are limited in scope – they apply only to acts of piracy
committed on the high seas or outside the jurisdiction of a state.17
In an effort to
extend the focus of international law to “maritime terrorism” and other acts of
aggression on the seas, the Convention for the Suppression of Unlawful Acts against
the Safety of Maritime Navigation (SUA Convention) was developed.18
Amongst
other things, the SUA Convention applies to any ship navigating to, through or from
the territorial seas.19
The SUA Convention deals with questions of jurisdiction and
includes a provision which provides for extradition of suspected pirates to an
appropriate state where a capturing state cannot establish jurisdiction.20
It was most
recently amended by the 2005 Protocol which entered into force on 28 July 2010.21
The UN Security Council has „declared that in cases in which piracy is accompanied
by vessel hijacking the 1988 SUA convention [will] apply‟.22
Article 3 of the SUA Convention makes it an offence to:23
(1) seize or exercise
control over a ship by force, threat or intimidation; (2) perform an act of violence
against a person on board a ship if that act is likely to endanger the safe navigation of
the ship; (3) destroy a ship or cause damage to its cargo; (4) place or cause to be
placed on a ship, by any means whatsoever, a device or substance which is likely to
destroy that ship, or damage it or its cargo; (5) destroy or seriously damage maritime
navigational facilities or seriously interferes with their operation; or (6) communicate
information known to be false, thereby endangering the safe navigation of a ship. The
2005 Protocol amendments extended criminality to unlawfully and intentionally
injuring or killing a person in connection with any of the aforementioned crimes;
attempting to commit a crime; participating as an accomplice; organizing or directing
others; or contributing to the offences with the aim of furthering the criminal activity
or in the knowledge that the group will commit an offence.
15
Art 100. 16
Art 105: „On the high seas, or in any other place outside the jurisdiction of any State, every State
may 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…‟ 17
See further Zou Keyuan, „Enforcing the Law of Piracy in the South China Sea‟ (2000) 31 Journal of
Maritime Law and Commerce 107, 112. 18
Convention for the Suppression of Unlawful Acts against the safety of maritime navigation, opened
for signature 10 March 1988, 1678 UNTS 201 (entered into force 1 March 1992). 19
Art 4. Chang notes that this has the effect of expanding the UNCLOS definition of “piracy”: Diana
Chang, „Piracy Laws and the Effective Prosecution of Pirates‟ (2010) 33 Boston College
International & Comparative Law Review 273, 275. 20
Art 10. 21
2005 Protocol to the Convention for the Suppression of Unlawful Acts against the safety of maritime
navigation, opened for signature 14 October 2005, 1678 UNTS 201 (entered into force 28 July 2010). 22
James Kraska and Brian Wilson, „Commentary: Maritime Diplomacy and Piracy in the Horn of
Africa‟ (2008) 161 Maritime Studies 13, [electronic p. 5]. See SC Res 1846, UNSC, 6026th
mtg, UN
Doc S/RES/1846 (2 December 2008). 23
These offences have been summarised here. Refer to the SUA Convention and Protocol for the full
text.
MARITIME PIRACY: A Hong Kong Perspective
4
Article 5 requires each State Party to make the offences „punishable by appropriate
penalties which take into account the grave nature of those offences‟. This is
consistent with the recent UN Security Council resolution of April 2010 which „[c]alls
on all States … to criminalize piracy under their domestic law and favourably
consider the prosecution of suspected, and imprisonment of convicted, pirates
apprehended off the coast of Somalia, consistent with applicable international human
rights law‟.24
An attempt to strengthen the international fight against piracy is
reflected in Article 8bis. It provides for assistance to be provided by State Parties to
vessels under attack which are not flying the flag of the State Party rendering
assistance. The provisions detail the procedures to be followed for boarding a vessel
on the high seas.25
Evidently, combatting piracy is seen as a collaborative effort
among all states.26
Armed robbery against ships has been defined as:27
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 such a ship, within a State’s jurisdiction over such offences.
The IMO‟s Draft Code of Practice for the Investigation of the Crimes of Piracy and
Armed Robbery Against Ships recommends States take measures necessary to
establish jurisdiction over the offences of piracy and armed robbery against ships.28
The International Maritime Bureau‟s (IMB) definition of piracy does not distinguish
the crimes based on jurisdiction.29
Acting under Chapter VII of the Charter of the United Nations, Security Council
Resolution 184630
dated 2 December 2008 decided that, for a period of 12 months,
States and regional organizations cooperating with the Transitional Federal
Government of Somalia could enter and use the territorial waters of Somalia for the
purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent
with such authorized action on the high seas.31
The authorization contained in the
Resolution has been repeatedly renewed, most recently in November 2010.32
24
SC Res 1918, UNSC, 6301st mtg, UN Doc S/RES/1918 (27 April 2010).
25 Authorisation of the flag state is required before boarding: Art 8bis(5).
26 The UN General Assembly recognized in its resolution 64/71 of 4 December 2009 „the crucial role
of international cooperation at the global, regional, subregional and bilateral levels in combating, in
accordance with international law, threats to maritime security, including piracy, armed robbery at
sea…‟: Oceans and law of the sea, GA Res 64/71, UNGAOR, 64th
sess, UN Doc A/RES/64/71 (12
March 2010) para 69. 27
IMO Circular, Maritime Safety Committee, 73rd
sess, MSC/Circ. 984 (20 December 2000) (emphasis
added). 28
Ibid 3.1. 29
According to the IMB, piracy is „The act of boarding any vessel with an intent to commit theft or any
other crime, and with an intent or capacity to use force in furtherance of that act.‟ 30
Earlier Resolution 1816, dated 2 June 2008, was valid for six months and provided for the same
intervention. 31
SC Res 1846, UNSC, 6026th
mtg, UN Doc S/RES/1846 (2 December 2008) para [10]. 32
SC Res 1950, UNSC, 6429th
mtg, UN Doc S/RES/1950 (23 November 2010). For further details on
the Resolutions, see Sterio, above n 12, 1473-4.
MARITIME PIRACY: A Hong Kong Perspective
5
4. ReCAAP
Hong Kong, through China‟s accession, is a party to the Regional Cooperation
Agreement on Combating Piracy and Armed Robbery against Ships in Asia
(ReCAAP), which came into force in 2006 („the Agreement‟). It has been reported
that the Agreement „has led to a dramatic decline in the incidence of maritime piracy
in the Straits of Malacca and Singapore.‟33
The Agreement creates a number of general obligations for Contracting Parties
including taking measures to prevent and suppress piracy and armed robbery against
ships, make arrests, seize ships or aircraft, and rescue victim ships and persons.34
One
of the key components of the Agreement is the establishment of an Information
Sharing Centre (ISC), based in Singapore, which is effectively a 24-hour tactical
command centre.35
Its functions include:
managing and maintaining the expeditious flow of information relating to
incidents among the Contracting Parties;
collecting, collating and analysing the information;
preparing statistics and reports and disseminating them among the Contracting
Parties, the international shipping community and the IMO;
providing appropriate alerts and warnings of threats whenever possible; and
facilitating cooperation between Contracting Parties in detecting pirates and
offenders.
Notwithstanding the Agreement has other provisions concerning extradition, mutual
legal assistance, capacity building and cooperative arrangements (for example, joint
counter-piracy exercises), at its core is information sharing. The provisions deal with
more than merely sharing details about incidents; they extend to requiring a „focal
point‟ in a Contracting Party responsible for communicating with the ISC.36
This
enables information concerning threats to be quickly disseminated among the parties.
As the first treaty dedicated to combating piracy from a regional perspective,
ReCAAP has become a model for other similar agreements such as the Maritime
Organization of West and Central Africa (MOWCA), although none is as
successful.37
5. Hong Kong Legislation
Part III of Hong Kong‟s Crimes Ordinance deals with „Piracy and Other Offences at
Sea‟ and punishes piratical acts with life imprisonment.38
Pursuant to s 20, a person
may commit a piratical act under the Ordinance if either:
33
James Kraska and Brian Wilson, „The Pirates of the Gulf of Aden: The Coalition is the Strategy‟
(2009) 45 Stanford Journal of International Law 243, 271. 34
Art 3. 35
See Part II of the Agreement. 36
See Art 9. 37
See Kraska and Wilson, above n 22, [electronic p. 3]. 38
Crimes Ordinance (Hong Kong) cap 200, s 20.
MARITIME PIRACY: A Hong Kong Perspective
6
(1) he is a resident of the HKSAR and commits any piracy or robbery or any act
of hostility or robbery against other residents of the HKSAR on the sea; or
(2) being on board any Hong Kong ship, he: turns pirate, enemy or rebel;
voluntarily yields up the ship or its contents to any pirate; brings any seducing
message from a pirate, enemy or rebel; assaults the master; confines the
master; or makes or endeavours to make a revolt on the ship.
Trading with pirates is criminalised under s 21; s 22 concerns persons found within
Hong Kong on board any vessel equipped for the purposes of piracy; and s 19 refers
to „piracy with violence‟.
If an act of a person on board a Hong Kong ship on the high seas would ordinarily
constitute an offence under the law of Hong Kong if it were to take place in Hong
Kong, it is deemed an offence by virtue of s 23B(1) (regardless of the person‟s
citizenship or nationality). A similar provision applies in respect of an act committed
in Hong Kong waters on board a non-Hong Kong ship;39
and an act committed by a
resident of the HKSAR on board a Hong Kong ship in any port or harbour outside
Hong Kong, or on board a ship which is neither a Hong Kong ship nor a ship to which
the person belongs.40
The aforementioned provisions are subject to two provisos.41
The Theft Ordinance applies where a person „dishonestly appropriates property
belonging to another with the intention of permanently depriving the other of it‟.42
Sections 9, 10 and 11 concern theft, robbery and burglary respectively. Under s 11, a
person commits burglary if he enters a building as a trespasser either with intent to
commit an offence of stealing, inflicting on any person therein grievous bodily harm
or rape of a woman, or doing unlawful damage to the building; or, having entered a
building, steals or attempts to steal anything in it or inflicts or attempts to inflict
grievous bodily harm on a person in it. References to “building” also apply to an
inhabited vehicle or vessel.43
6. Hong Kong Ships in the Gulf of Aden
The Marine Department of Hong Kong regularly updates masters, shipowners and
ship security officers of piratic incidents and arrangements for safe passage of Hong
Kong ships in and around the Gulf of Aden and throughout other areas of known
piratic activity, such as the South East Asian seas. Some of the measures are outlined
below:
39
s 23B(2). 40
s 23B(3). Subsection (4) states that „Where an offence against the person or against property is
committed, either ashore or afloat, in any place outside Hong Kong by any master, seaman or
apprentice who at the time when the offence is committed is, or at any time within the previous 3
months was, employed in any Hong Kong ship, the matter may be inquired into, and the person by
whom the offence was committed may be punished and otherwise dealt with in the same manner as if
the offence had been committed in Hong Kong.‟ 41
See ss 23B(5) and (7). Subsection (5) provides that this section does not apply to acts expressly or
impliedly authorised under Hong Kong law or not otherwise prohibited by it. Subsection (7) deals
with hovercraft. 42
Theft Ordinance (Hong Kong) cap 210, s 2(1). Note: s 23B of cap 200 does not appear to be limited
in its reach to cap 200, which is itself a consolidation of criminal laws. It would therefore apply to
cap 210. 43
See Theft Ordinance (Hong Kong) cap 210, s 11(3).
MARITIME PIRACY: A Hong Kong Perspective
7
6.1 Ship Security Plan
The Singapore Navy Information Fusion Centre (IFC)44
Shipping Advisory 1/2010
recommends ship masters adopt a Ship Security Plan (SSP) for transit through the
Malacca Strait. It is suggested that such SSP be in conformity with those in use when
transiting the Gulf of Aden.45
In general, a Ship Security Plan details security
vulnerabilities and identifies possible solutions in order to mitigate risks.46
In any
event the SSP is required by the International Ship and Port Facility Security Code
(ISPS).47
The Marine Department makes reference to this requirement in the Hong
Kong Merchant Shipping Information Note 15/2009 („Prevention and Suppression of
Piracy and Armed Robbery Against Ships‟).
6.2 Preventing pirate activity
The Marine Department has provided, to all masters, ship security officers and
company security officers of Hong Kong registered ships, “sample reference
measures” to be taken to prevent pirate activity. „Ships are encouraged to make
reference to them when considered applicable.‟48
The sample measures include:
a) Situational awareness
Pirates have been known to track vessels via the Automatic Identification
System (AIS). Additionally, the mother ships they launch from are generally
well-equipped with radar, communication equipment and AIS. It is essential
that the crew is aware of the pirates‟ level of sophistication so as to avoid
complacency.
b) Precautions
Precautions may include the use of razor-bladed barbed wire around the vessel;
securing the accommodation areas; securing all doors from inside; keeping an
efficient lookout while ensuring all lookouts are well rested; and staggering
the switch-over to new officers and lookouts.49
44
The IFC, opened in April 2009, works closely with ReCAAP‟s ISC and coordinates information
obtained by the Western Pacific Naval Symposium Regional Maritime Information Exchange and
the Malacca Straits Patrol‟s Information System. 45
Marine Department of Hong Kong, „Advisory to shipping on improving security measures while
transiting the Malacca Strait‟ (Security and Quality Advisory No. 7, 5 March 2010). 46
The SSP must address issues such as measures to prevent weapons, dangerous substances and
devices from being taken aboard ship; identification of restricted areas; measures for prevention of
unauthorized access to the ship; procedures for responding to security threats; procedures for
evacuation in case of security threats; duties of shipboard personnel assigned security responsibilities;
procedures for auditing security activities; procedures for security training, drills and exercises;
procedures for interfacing with port facility security activities; procedures for the periodic review of
the SSP; procedures for reporting security incidents; identification of the Ship Security Officer (SSO);
and issues related to ship security equipment. See Part A, s 9.4. 47
See Part 9 of the ISPS Code. China is a signatory to the International Convention for the Safety of
Life at Sea 1974. The ISPS Code was an amendment to Chapter XI-2 of that Convention. The
amendments entered into force on 1 July 2004. 48
Marine Department of Hong Kong, „Recent pirate attempt to board HK registered ship‟ (Security and
Quality Advisory No. 9, 27 April 2010). The sample measures are contained in the appendix. 49
It is reported that most attacks and accidents occur in the last 30 minutes and first 30 minutes of a
watch. By staggering the changeover, at least one crew member on duty will have current situation
awareness while the new member absorbs the situation.
MARITIME PIRACY: A Hong Kong Perspective
8
c) Standard Operating Procedures
The Standard Operating Procedures (SOPs) should comprise five parts:
physical duration and preparation of the vessel prior to entering the danger
zone; actions required 96 hours before the vessel‟s arrival into the zone;
procedures to follow in the event of a suspicious sighting (for example, raise
the alarm, inform authorities patrolling the area, maintain a high speed); what
the crew must do if the vessel is boarded by pirates; and the post-attack period.
d) Checklist
A checklist for each crew member should detail the assigned tasks during an
incident.
e) Rest
All crew must be well-rested during the passage.
f) AIS
Even though pirate mother ships often rely on AIS to track vessels, the sample
reference recommends it be kept on as naval forces in the region may be
unable to monitor the vessel‟s progress and provide updates.
g) Briefing the crew
Regular crew briefings are important in raising awareness of the situation and
encouraging the early detection and reporting of threats.
h) Notification of progress
Regular reports to the company security officer are required.
6.3 Chinese Naval Escort
The Marine Department has advised ships seeking protection in the Gulf of Aden to
join the Chinese Naval Vessels Escort Arrangement.50
The Hong Kong Maritime
Rescue Coordination Centre (HKMRCC) receives ship movement reports and works
with the escort arrangement to coordinate the convoy. Approximately 10 convoys are
organized each month. During the escort, vessels must comply with instructions
given by Chinese escorting warships and must not make an early departure from the
convoy without consent.
While the Marine Department strongly advises ships join the Chinese naval convoy,
on „very vulnerable‟ ships armed Chinese naval officers may be offered to board. The
Department recommends the master accept any such offer.51
Hong Kong registered ships seeking assistance from Chinese naval warships and
ships scheduled to transit the Gulf of Aden are reminded of the need to submit a “ship
50
Marine Department of Hong Kong, „Chinese and Navy Escort in Gulf of Aden‟ (Security and
Quality Advisory No. 13, 19 August 2010). 51
Marine Department of Hong Kong, „Placing Security Personnel on Board Hong Kong Registered
Ships‟ (Security and Quality Advisory No. 14, 16 February 2011).
MARITIME PIRACY: A Hong Kong Perspective
9
movement report” via email to the HKMRCC.52
An updated report came into use on
4 April 2011.53
Information required by the report includes general ship and crew
details such as Inmarsat numbers, draft and cargo; communications equipment;
whether a security consultant is on board; whether any firearms or munitions are on
board; whether there is a citadel on board; and the ship‟s present position, course and
speed. Hong Kong shipowners of non-Hong Kong registered ships may also apply for
Chinese naval escorts by applying directly to the Beijing Maritime Rescue
Coordination Centre.
6.4 Best Management Practices
The Marine Department recommends shipowners follow the Best Management
Practices (BMP) guidelines at all times when within known „piracy areas‟.54
Further,
it encourages alerting the Maritime Security Centre – Horn of Africa (MSCHOA)
irrespective of the freeboard or speed of the ship.
The purpose of the BMP guidelines is to „assist ships to avoid, deter or delay piracy
attacks off the coast of Somalia, including the Gulf of Aden (GoA) and the Arabian
Sea area‟.55
It defines a „high risk area‟ where the BMP should be applied. Prior to
proceeding, a risk assessment should be undertaken: this should at the least analyse
crew safety, freeboard, speed, sea state and pirate activity but may vary depending on
the particular vessel.56
It is essential under the BMP that ships liaise with the naval forces in the region.
„This is to ensure that Naval forces are aware of the sea passage that a ship is about to
embark upon and how vulnerable that ship is to pirate attack.‟57
The three
organizations are:
MSCHOA: the planning and coordination authority for European Union forces.
It is largely a coordination centre functioning in support of the UN Security
Council Resolutions 1814, 1816 and 1838.
United Kingdom Maritime Trade Operations (UKMTO): this organization
deals directly with ships and liaises with MSCHOA and the naval
commanders at sea. It also administers the Voluntary Reporting Scheme
whereby merchant vessels may send regular updates on position, course, speed
and estimated arrival time at the next port.
52
Marine Department of Hong Kong, „New Movements Report for Ship on Entering and Leaving the
Gulf of Aden and the Somali Waters‟ (Security and Quality Advisory No. 15, 16 March 2011). 53
Marine Department of Hong Kong, „New Movements Report for Ship on Entering and Leaving the
Gulf of Aden and the Somali Waters‟ (Security and Quality Advisory No. 16, 4 April 2011). 54
Ibid. 55
Best Management Practices to Deter Piracy off the Coast of Somalia and in the Arabian Sea Area
(version 3, June 2010) section 1.1. Signatories to the BMP include BIMCO, the International
Chamber of Shipping, International Group of P&I Clubs, International Maritime Bureau, Intercargo,
Intertanko, International Shipping Federation, International Transport Workers‟ Federation,
International Parcel Tankers Association, Joint Hull Committee, Joint War Committee, Oil
Companies International Marine Forum, and the Society of International Gas Tanker and Terminal
Operators. 56
Part 3. 57
See section 5.2.
MARITIME PIRACY: A Hong Kong Perspective
10
Maritime Liaison Office Bahrain (MARLO): operates as a conduit for
information exchange between the Combined Maritime Forces (CMF) and
industry in the region.
6.5 Private Security Personnel on board Hong Kong registered ships
The Marine Department „encourages the carriage of experienced security consultants
to assist in following BMP requirements‟.58
The principal justification appears to be
that they give confidence to the crew in the event of a pirate attack. In at least some
cases it appears these consultants provide anti-piracy training enroute to the Gulf and
shift focus to attack prevention as the ship passes through it.
6.6 Possession of weapons on board Hong Kong registered ships
The Marine Department does not encourage the carriage of weapons on board any
Hong Kong registered ship.59
This is in line with the sentiment expressed on behalf of
the Hong Kong Shipowners‟ Association.60
Both organizations tend to the view that
carriage of weapons will lead to an escalation of the severity of attacks. However,
„where ships are passing through known piracy areas with no naval protection and it is
felt to be in the best interest of crew and ship safety and security to carry weapons‟,
the Marine Department recommends that:61
(i) a thorough due diligence is done on the security consultants, as there is no
established organization to vet such companies;
(ii) the lawyers are consulted on the legal consequences and liabilities,
especially in the event that innocent parties are injured;
(iii) all other parties involved in the voyage, such as charterers and insurers, are
in agreement;
(iv) the line of command and rules of engagement are clearly understood and
conform with the legal advice;
(v) the crew are fully briefed and consulted; and
(vi) the weapons are possessed by the master, or by a person who is authorised
by the owner or person in charge of the vessel to have such possession.
Once the Department receives a request from the shipowners addressing the above
points it will issue a letter for the carriage of weapons on board the vessel.62
58
Marine Department of Hong Kong, „Placing Security Personnel on Board Hong Kong Registered
Ships‟ (Security and Quality Advisory No. 14, 16 February 2011). 59
Ibid. It does, however, recommend vulnerable vessels accept any offer by the Chinese Navy of
armed Chinese naval officers as discussed above. 60
Arthur Bowring, Managing Director of the Hong Kong Shipowners‟ Association, „Piracy and Armed
Robbery Against Ships: A Shipowners‟ Perspective‟ (Speech delivered at the ReCAAP ISC Capacity
Building Workshop, Hong Kong, 4-6 November 2008). 61
Marine Department of Hong Kong, „Placing Security Personnel on Board Hong Kong Registered
Ships‟ (Security and Quality Advisory No. 14, 16 February 2011). 62
Ibid: the Marine Department notes that „confidentiality regarding this matter is beneficial to the
safety of the ship and crew involved‟.
MARITIME PIRACY: A Hong Kong Perspective
11
7. Issues
The aforementioned matters pose some legal questions which the Hong Kong Centre
for Maritime and Transportation Law is currently investigating.
Of the 90 reported incidents of pirate attacks by EU NAVFOR since 10 January 2011,
more than 20 per cent have been repelled by the use of armed force from the merchant
vessel.63
It is not known whether there has been a corresponding increase in ferocity
of attacks but over the same period more than half the attacks involved the firing of
weapons by pirates. The possession of weapons on board ships creates new problems.
The BMP states that the use of armed guards is „not recommended‟.64
Nonetheless,
because of the increased interest in and use of private security guards, the
international community has introduced a non-binding compilation of international
laws and good practices.
The starting point is the Montreux Document.65
An initiative of the Swiss
Government and International Committee of the Red Cross (ICRC), the Montreux
Document draws on the experience of 17 governments across the world to address
legal concerns arising from the use of private military and security companies
(PMSCs).66
Although it focuses on armed conflict, paragraph 5 of the Preface
provides:
That existing obligations and good practices may also be instructive for post-
conflict situations and for other, comparable situations; however, that
international humanitarian law is applicable only during armed conflict…
The Document adds: „A current example is the contracting of PMSCs to protect
merchant shipping against acts of piracy.‟67
At least one author suggests its
applicability to the use of armed guards on ships stems from the Document‟s
practicality, its „not overly limiting or exclusive‟ language, and the benefit that
shipowners may derive from referring to its good practices guidelines.68
Reference to
the good practices would potentially be very useful in establishing an overall SSP
incorporating the armed guards, selection of security providers, developing
contractual terms, and developing rules of engagement and authority. Of course, the
Document would be useful regardless of whether or not the security consultants are to
63
Based on known details held by EU NAVFOR: „Weekly Piracy Incident Summary: 10 January – 8
May 2011‟ available at <http://www.eunavfor.eu>. 64
Best Management Practices to Deter Piracy off the Coast of Somalia and in the Arabian Sea Area
(version 3, June 2010) section 6.11. 65
Montreux Document: On pertinent international legal obligations and good practices for States
related to operations of private military and security companies during armed conflict , International
Committee of the Red Cross (17 September 2008). 66
The document was finalized by consensus on 17 September 2008 by 17 States, including China. 67
Montreux Document: On pertinent international legal obligations and good practices for States
related to operations of private military and security companies during armed conflict , International
Committee of the Red Cross (17 September 2008) 39. 68
Christopher Spearin, „A private security solution to Somali Piracy?‟ (2010) 63(4) Naval War College
Review 56, 65-6.
MARITIME PIRACY: A Hong Kong Perspective
12
be armed. Some private security companies have gone a step further in signing an
International Code of Conduct for Private Security Service Providers.69
In Hong Kong, s 13 of the Firearms and Munitions Ordinance makes it an offence for
a person to have in his possession any arms or ammunition unless he holds a licence
for it.70
However, that section does not apply to the possession of arms or
ammunition by the owner or person in charge of a vessel, or by a person who is
authorized by the owner or person in charge of a vessel to have such possession, if the
arms or ammunition: (a) are carried on a vessel other than a specified vessel71
; (b) are
part of the equipment reasonably required to be carried on such vessel for the
protection of life or property; and (c) remain at all times on the vessel while it is in
Hong Kong.72
Further, s 13 does not apply to the carriage of firearms on board a
foreign ship so long as the person who holds them is authorised by the appropriate
authority having jurisdiction over the ship and that they remain on the ship while it is
in Hong Kong.73
The relevant wording has not been judicially considered. It is unclear, therefore,
whether the words „reasonably required…for the protection of life or property‟ align
with the Marine Department‟s recommendation as discussed above: „where ships are
passing through known piracy areas with no naval protection and it is felt to be in the
best interest of crew and ship safety and security to carry weapons‟. It would be
prudent for those involved in any security and safety assessment to consider both.
Another issue concerns the master. Determining at the outset any conflict between
the master‟s control of the vessel and the security consultant‟s or security guard‟s
responsibilities is necessary. Complications may arise owing to the operation of the
SOLAS Regulations. Regulation 8(1) provides:74
The master shall not be constrained by the Company, the charterer or any
other person from taking or executing any decision which, in the professional
judgement of the master, is necessary to maintain the safety and security of the
ship. …
The ISPS Code also clarifies that „[a]t all times the Master of a ship has the ultimate
responsibility for the safety and security of the ship.‟75
Maritime Security Council
Circular 1332, which brought the original BMP guidelines to the attention of States,
provided: „Nothing in the attached BMP should be read as limiting the Master‟s
authority to take action deemed necessary by the Master to protect the lives of
69
The Code was signed by 58 security companies in Geneva on 9 November 2010. Its aims include
establishing objective and measurable standards for providing security services, and establishing
external independent mechanisms for effective governance and oversight. See further: <
http://www.icoc-psp.org/>. 70
Cap 238. A person who contravenes the section is liable to a fine of $100,000 and imprisonment for
14 years. 71
Means a regular river trade vessel, fishing vessel, vessel used for pleasure purposes, vessel used in
navigation solely in the waters of Hong Kong, etc. 72
Firearms and Munitions Ordinance (Hong Kong) cap 238, s 5. 73
Firearms and Munitions Ordinance (Hong Kong) cap 238, s 7. 74
Chapter XI-2. 75
See Guidance Regarding the Provisions of Chapter XI-2 of the Annex to the International
Convention for the Safety of Life at Sea 1974 as amended, part 4.10.
MARITIME PIRACY: A Hong Kong Perspective
13
passengers and crew.‟76
Circular 1337, containing the most recent BMP, does not
contain a similar statement; but the BMP do emphasise the overall discretion of the
Master. Hence, it would seem that they are designed to operate in compliance with
the SOLAS regulations.
Non-compliance with BMP and anti-piracy recommendations is emerging as a
problem. It has been reported that a „startling‟ number of „vessels and flag states are
failing to comply with anti-piracy measures‟.77
The report suggested, between
September and November 2010, 10 out of 12 Hong Kong-flag ships were observed
not to be following best management practices. A circular letter sent to all IMO
members, UN and specialized agencies, intergovernmental organizations, and NGOs
on 14 February 2011 adds:78
Naval forces operating in the region off the coast of Somalia have reported
that an unacceptably high proportion of the ships transiting the Gulf of Aden
are not registered with the [MSCHOA]; are not reporting to UKMTO Dubai;
show no visible deterrent measures and are not acting upon the navigational
warnings to shipping promulgating details of pirate attacks and suspect
vessels.
The issue should be a concern to local shipowners, operators and masters. The cause
of the problem is not immediately evident; but it could stem from the ever-increasing
supply of recommendations, BMP guidelines and requirements of the various anti-
piracy organizations. A shift toward consolidation and simplification may ultimately
materialise.
8. Concluding Comments
The Marine Department of Hong Kong and the local industry are understandably
concerned for the safety of seafarers and ships transiting known danger areas. At
present, international efforts to combat piracy in the Gulf of Aden are struggling to
cope. International laws and best practices most certainly have a critical role to play:
there are emerging issues which will need to be resolved. For example, what is the
effect of weapons on the UNCLOS definition of “innocent passage”? From a legal
point of view, is the use of naval forces on ships any different to using private security
consultants? Can the success of the ReCAAP experience provide guidance to
operations in the Gulf of Aden? These questions and others raise critical problems for
the international law of piracy and highlight the desire for further research into
maritime piracy and armed robbery worldwide. The most unfortunate seafarers held
hostage by Somali pirates are, of course, the greatest concern and any effort to combat
piracy must ensure the safety of hostages, seafarers and passengers is its first priority.
76
IMO Circular, Maritime Safety Committee, 86th
sess, MSC/Circ. 1332 (16 June 2009). 77
„Owners face being named and shamed‟, InterManager News (online), 11 March 2011 <
http://www.intermanager.org/Resources/News/tabid/82/mid/500/newsid500/673/Default.aspx>. 78
International Maritime Organization, Circular letter No. 3164 (14 February 2011, Ref. T2-MSS
2.11.7) 3 (references omitted).
Hong Kong Centre for Maritime and Transportation Law
School of Law, City University of Hong Kong
83 Tat Chee Avenue, Kowloon, Hong Kong
Phone: (852) 3442 8008 Fax: (852) 3442 0190 Email: [email protected]
Website: http://www.cityu.edu.hk/slw/HKCMT