A Malaysian oil tanker anchored in Sandakan Bay. Photo Credit: CEphoto, Uwe Aranas
Last Friday, eight Indonesians were arrested by a Vietnamese coast guard patrol off the southern coast of Vietnam. They were accused of hijacking Malaysia’s oil tanker Orkim Harmony. The alleged pirates had fled the oil tanker to Tho Chu Island, where they were detained and transferred to Phu Quoc Island. They have since confessed to hijacking the oil tanker — carrying an estimated 2 million gallons of gasoline worth $5.7 million — off the Malaysian coast on June 11.
Five days prior to the arrest of the Indonesian pirates, occupants of another nautical vessel were busy boarding a Vietnamese fishing boat operating off the disputed Paracel (Hoang Sa) archipelago, destroying fishing gear and robbing it of an Icom walkie-talkie, a positioning system and about five metric tons five metric tons of catch worth $13,780.
The latest attack is third by these same vessels on Vietnamese fishing boats since June 7, and have reportedly injured two fishermen and caused damage totaling about $48,150. The second attack occurred on June 10, when four ships surrounded a Vietnamese fishing boat and then forcefully boarded the fishing boat, forcing the 11 Vietnamese fishermen to transfer all of their catch – about six metric tons – to the other vessels. Also taken from the Vietnamese fishing boat were two fish detectors, a positioning system, an Icom walkie-talkie, five tanks of oil and diving clothes.
While those who attacked the Malaysian oil tanker can plausibly be referred to as pirates, can we use the same reference to those nautical vessels which attacked the Vietnamese fishing vessels and stole their property? According to Vietnamese media, those nautical vessels were “Chinese ships,” and were not the first to attack Vietnamese fishing boats, “ Chinese fishing boats and coast guard ships have bullied Vietnamese fishermen operating in the area for decades.” Presumably the “Chinese ships” that attacked the Vietnamese fishing boats and confiscated their catch were coast guard vessels, and therefore state agents (and not private ships), which do not fall under the United Nations’ definition of pirates. According to Articles 101 to 103 of the United Nations Convention on the Law of the Sea (UNCLOS) (1982) the definition of piracy is the following:
Article 101
Definition of piracy
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;
Nor can the Chinese vessels be considered engaged in commerce raiding. This typically refers to the disruption of merchant shipping during times of war, which was outlawed by the Peace of Westphalia Treaty of 1648.
So how exactly can we describe the boarding of and confiscation from the Vietnamese vessels by presumably Chinese coast guard vessels? The International Maritime Bureau (IMB) offers a looser definition of piracy:
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.
If we accept the IMB’s definition of piracy, the Chinese coast guard would probably respond their actions do not constitute theft, for they were just taking back what was rightfully theirs – the fish that swim in the waters they claim. Even if we accept China’s dubious historical claim to 90 percent of the South China Sea (East Sea) and its fish, the Chinese vessels also confiscated fish detectors, positioning systems, Icom walkie-talkies, tanks of oil, and diving clothes, which are unlikely to be returned.
The only difference between the eight Indonesian pirates and the Chinese boats, both of whom boarded a foreign vessel with the intent to commit theft, and with an intent or capacity to use force, is the scale of the theft and the state versus non-state identity of the aggressors. The act of confiscating property in disputed waters, even if you are a state actor, merely makes you a pirate of the state. At least the Vietnamese fishermen were not caught fishing in waters claimed by Indonesia — the government there blew up 41 vessels in May suspected of illegal fishing, including those of Thailand, Vietnam and China.