MARITIME PIRACY AND ARMED ROBBERY AGAINST SHIPS: EXPLORING THE LEGAL AND THE OPERATIONAL SOLUTIONS. THE CASE OF MADAGASCAR Jean Edmond Randrianantenaina The United Nations-Nippon Foundation Fellowship Programme 2012 - 2013 DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA OFFICE OF LEGAL AFFAIRS, THE UNITED NATIONS NEW YORK, 2013 DISCLAIMER The views expressed herein are those of the author and do not necessarily reflect the views of the Government of Madagascar, the United Nations, the Nippon Foundation of Japan, or the University of Dalhousie. © 2013 Jean Edmond Randrianantenaina. All rights reserved. - i - Abstract Maritime piracy and armed robbery against ship are one of the contemporary challenges of the maritime industry. These two phenomena have a global impact on maritime trade and security. Nowadays, the Gulf of Aden and the Indian Ocean are considered high risk areas in terms of piracy and armed robbery against ships activities. In this regard, both the international community and the coastal States of the region have deployed every effort to try to find ways to address the problem. Being part of the region, Madagascar faces the same challenges like the coastal States of the Eastern Africa and the Western Indian Ocean region in terms of maritime piracy and armed robbery against ships threat level, and the organization as well as the response capacity to tackle these crimes. The following research paper proposes a piracy response model for Madagascar by analyzing the manifestation of the modern maritime piracy and armed robbery against ships, the existing international and national legal framework on the matter, the experiences of the international community and regional coastal States in addressing the Somalia case and the current operational arrangement Madagascar in addressing the issue. Considered to be at the basis of any solutions to maritime piracy and armed robbery against ships, the legal and the operational aspects are thoroughly discussed. The first part of the research paper analyzes the international legal framework on maritime piracy and armed robbery against ships, the national legislation models of Madagascar’s neighboring countries on the matter, and the existing Malagasy legal framework. Recommendations are proposed to reform the legislation and the necessity of improving the judicial capacity. The second part of the research paper focuses on how to improve the operational arrangement to combat maritime piracy and armed robbery against ships in Madagascar by looking at the international and regional operational initiatives in the Eastern Africa and Indian Ocean Region, assessing the current operational response of Madagascar and suggesting solutions for the improvement. It is acknowledged that without political will and support the legal and operational solutions will not be efficient and achieved. Throughout the research paper, the intricacy of addressing maritime piracy and armed robbery against ships and the necessity of federating and integrating several components are highlighted, moreover the value of coordination and cooperation at the national, regional and international levels is underlined. Keywords: Maritime piracy, armed robbery against ships, legal framework, operational response, politics, regional cooperation, international cooperation. - ii - .SUPERVISORS: Dr. Lucia Fanning and Prof. Hugh R. Williamson Dr. François Bailet - iii - Acronyms AIS Automatic Identification System AMISOM African Union’s Military Mission in Somalia APMF Agence Portuaire, Maritime et Fluviale (Port, Maritime and Waterways Agency) BMP Best Management Practices for Protection against Somalia Based Piracy CC-Mar Allied Maritime Component Command CCTV Closed Circuit Television CGPCS Contact Group on Piracy off the Coast of Somalia CHS The 1958 Convention of the High Seas CMF Combined Maritime Task Force COMESA Common Market for Eastern and Southern Africa CPC Criminal Procedure Code CRSR The 1951 Convention Relating to the Status of Refugee CRC The Convention on the Rights of the Child CSO Company Security Officer CTF Combined Task Force DCCTF Djibouti Code of Conduct Trust Fund DCoC Djibouti Code of Conduct EAC East African Community EEZ Exclusive Economic Zone ESA-IO Eastern and Southern Africa-Indian Ocean Regional meeting on Piracy and Maritime Security EUNAVFOR European Naval Forces FSC Fisheries Surveillance Centre GMDSS Global Maritime Distress Satellite System HC International Convention against the Taking of Hostages known as the Hostage Convention HRA High Risk Area IAMSAR International Aeronautical and Maritime Search and Rescue Manual - iv - ICC International Camber of Commerce ICS International Chamber of Shipping ICCPR International Covenant on Civil and Political Rights IGAD Inter Governmental Authority on Development ILC International Law Commission ILO International Labor Organization IMB International Maritime Bureau IMB PRC International Maritime Bureau Piracy Reporting Centre IMO International Maritime Organization INTERPOL International Police and Crime Organization IRCC Inter-Regional Coordination Committee IRTC International Recommended Transit Corridor ISAN International Seafarers Assistance Network ISC Information Sharing Centre ISPS The International Code for the Security of Ships and of Port Facilities known as the ISPS Code Km Kilometer LRIT Long Range Identification and Tracking LOSC Law of the Sea Convention, 1982 known as the United Nations Convention on the Law of the Sea, 1982 MARLO United States Navy Maritime Liaison Office MOC Maritime Operating Centre MOU Memorandum Of Understanding MPRA Maritime Patrol and Reconnaissance Aircraft MPRH Maritime Piracy Humanitarian Response MRCC Maritime Rescue Coordination Centre MRSC Maritime Rescue Sub-Centre MSA Maritime Situational Awareness MSC-HOA Maritime Security Centre –Horn of Africa NATO North Atlantic Treaty Organization NSC NATO Shipping Centre - v - OCC United Nations Convention on Transitional Organized Crime known as the Organized Crime Convention OHQ Operation Headquarters PCASP Privately Contracted Armed Security Personnel PFSO Port Facilities Security Officer PFSP Port Facilities Security Plan PIU Project Implementation Unit PMSC Private Maritime Security Company RAPICC Regional Anti-Piracy Prosecutions Intelligence Coordination Centre RECAAP Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia RMP Recognized Maritime Picture ROE Rules of Engagement SADC Southern African Development Community SAR Search and Rescue SHADE SHared Awarness and Deconfliction SOLAS International Convention for Safety of life at Sea, 1974, as amended known as the SOLAS Convention SOS Save Our Seafarers SPM Ship Protection Measures Sq Square SRR Search and Rescue Region SSA Ship Security Assessment SSAS Ship Security Alert System SSO Ship Security Officer SSP Ship Security Plan SUA The 1988 International Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation known as the SUA Convention UAV Unmanned Aerial Vehicle UDHR Universal Declaration of Human Rights - vi - UK United Kingdom UKMTO United Kingdom Maritime Trade Operation Centre UN United Nations UNGAR United Nations General Assembly Resolution UNODC United Nations Office on Drugs and Crime UNODC CPP UNODC Counter-Piracy Programme UNSCR United Nations Security Council Resolution USA United States of America VPD Vessel Protection Detachment VDR Voyage Data Recorder WFP World Food Programme WG Working Group - vii - Acknowledgements First of all, Iwould like to thank the government of Madagascar, the United Nations and the Nippon Foundation for giving me this opportunity of undertaking a research project on a topic related to the ocean affairs and the law of the sea. Secondly, my profound gratitude is addressed to Dr. Lucia Fanning and Prof. Hugh R. Williamson for their guidance, support and patience during the realization of this research project. Similarly, I am very thankful to Dr. François Bailet who provided his expertise and lots of support during the research period. The Dalhousie University as a whole, the Marine Affairs Program and their respective staff deserve also a special acknowledgment for the excellent support and help that they offered throughout the research phase. Finally, I wish to address my sincere appreciation to the subject matter experts either from the Dalhousie University campus, from the UN/DOALOS or from elsewhere who gave their advice and support for the accomplishment of the present research project. - viii - List of Figures/Maps/Tables Figures Figure 1 Worldwide yearly statistics of maritime piracy and armed robbery against ships incidents since 1984 Figure 2 Scope of the research study Figure 3 BMP types of SPMs against piracy and armed robbery against ships Maps Map 1 Bases of pirates in Madagascar in the seventeenth century Map2 Expansion of pirate operations in East African and Indian Ocean Region Map 3 The tracking of the journey of the Felicity Map 4 Tracking of the M/V Zoulficar transit during the hijacking Tables Table 1 Gulf of Aden, East African and Indian Ocean Regions piracy statistics Table 2 Threats posed by maritime piracy and armed robbery against ships Table 3 International legal framework on maritime piracy and armed robbery against ships Table 4 National legal framework type on maritime piracy and armed robbery against ships Table 5 The steps during the judicial process in maritime piracy and armed robbery against ships in Madagascar Table 6 Madagascar status