Government organizations are asking shipowners and shippers to seriously consider the risks associated with armed guards on ships. In addition to the external danger to a ship with guards and a number of legal complexities, there may be problems associated with the lack of qualifications of such guards, the likelihood of their criminalization and their actions in the event of a pirate attack in foreign territorial waters. Many shipowners still advise ship captains not to resist pirates, as otherwise a pirate attack may result in the death of all crew members and the destruction of the ship. As an option, the experience of France, which allowed the presence of marines on merchant ships for protection, could be used. Finally, an interesting opinion was expressed by Gordan Van Hoek, senior director of innovation and development at the transportation company Maersk Line: “…a disorderly military can be as dangerous as sea robbers” 21.
Different types of jurisdiction, such as territorial jurisdiction of coastal states over acts committed in their territorial waters; active personal jurisdiction to prosecute pirates; passive personal jurisdiction of the victim state; jurisdiction of the flagged state; and jurisdiction of the state that captured the pirates, allow a large number of states to cooperate in suppressing piracy, albeit “to the fullest extent possible” as provided for in Article 100 of the UN Convention on the Law of the Sea In addition, compliance by States with the obligation to “prosecute or extradite” under the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation may also contribute to the fight against piracy.
A number of countries around the world have established universal or near-universal jurisdiction to prosecute suspected pirates. However, according to the UN position, the establishment of universal jurisdiction is not sufficient, as “it is necessary for States to agree to actually prosecute pirates “22.
The development of a model international notification of acts of piracy and armed robbery at sea within ASEAN seems necessary. Such a step would expedite the process of obtaining and presenting evidence and increase its reliability, but such notifications should not automatically lead to the commencement of proceedings in the apprehending State.