A Hong Kong Perspective

Working Paper Series MARITIME PIRACY: A Hong Kong Perspective CITY UNIVERSITY OF HONG KONG May 2011 Alexander McKinnon (Email: a.mckinnon@cityu.edu.hk)

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. 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 7364/ 3442 8008 Fax: (852) 3442 0190 Email: hkcmt@cityu.edu.hk Website: http://www.cityu.edu.hk/slw/hkcmt General Office School of Law City University of Hong Kong 83 Tat Chee Avenue Kowloon, Hong Kong Phone: (852) 3442 8008 Fax: (852) 3442 0190 Email: lwllm@cityu.edu.hk Website: http://www.cityu.edu.hk/slw Dr Vernon Nase Associate Professor Director of Hong Kong Centre for Maritime and Transportation Law School of Law City University of Hong Kong Phone: (852) 3442 7029 Fax: (852) 3442 0190 Email: v.nase@cityu.edu.hk Professor Wang Guiguo Dean & Chair Professor of Chinese and Comparative Law School of Law City University of Hong Kong Phone: (852) 3442 8183 Fax: (852) 3442 0606 Email: lwwgg@cityu.edu.hk Last updated 13 May 2011

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 everpresent 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/wpcontent/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 1

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 (ii) property on board such ship or aircraft; 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 (7 th 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, 6226 th 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. 2

(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 piracy 15 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, 6026 th 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. 3

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 1846 30 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, 6301 st 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, 64 th sess, UN Doc A/RES/64/71 (12 March 2010) para 69. 27 IMO Circular, Maritime Safety Committee, 73 rd 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, 6026 th mtg, UN Doc S/RES/1846 (2 December 2008) para [10]. 32 SC Res 1950, UNSC, 6429 th mtg, UN Doc S/RES/1950 (23 November 2010). For further details on the Resolutions, see Sterio, above n 12, 1473-4. 4

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. 5

(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). 6

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. 7

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). 8

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. 9

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. 10

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 postconflict 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. 11

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 vessel 71 ; (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. 12

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 antipiracy 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, 86 th 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). 13

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 7364/ 3442 8008 Fax: (852) 3442 0190 Email: hkcmt@cityu.edu.hk Website: http://www.cityu.edu.hk/slw/hkcmt