Chapter 2 Regional Cooperation Agreement on Combating Piracy and Armed
Robbery against Ships in Asia (Tokyo, 11 November 2004)
On 21 August 2012, the Regional Cooperation Agreement on Combating
Piracy and Armed Robbery against Ships in Asia (Tokyo, 11 November 2004) (ReCAAP)
was tabled in the Commonwealth Parliament.
ReCAAP’s origins can be traced back to regional concerns about incidents
of piracy and armed robbery against ships, dating back to the 1990s,
particularly through the Strait of Malacca – the waterway between the Malay
Peninsula and Indonesia. Each year more than 80,000 ships pass through the
Indian and Pacific oceans. At one stage, the Strait of Malacca and the straits
of Singapore were the most heavily pirated areas in the world, peaking with 75
reported attacks in 2000. These incidents threatened maritime navigation,
caused economic disruption, increased operating costs and, in some cases,
resulted in the loss of life.
In response, the Japanese government hosted the Asia Anti-Piracy
Challenge Conference in 2000, where participants agreed to broaden regional
cooperation to combat piracy. In 2002, 16 countries—the ASEAN countries plus
six others—started to draft what would eventually become ReCAAP, which was
finalised in November 2004. In that year, Singapore, Indonesia and Malaysia
commenced coordinated counter-piracy patrols, which resulted in a significant
drop in attacks, down to 38 in 2004 and then down to 10 attacks in 2005. With
ReCAAP’s finalisation in 2004, greater information exchange was facilitated to
combat piracy and armed robbery at sea, which then helped inform patrolling
ReCAAP is the first regional government-to-government agreement to
promote and enhance cooperation against piracy and armed robbery in Asia.
ReCAAP entered into force on 4 September 2006 and the ReCAAP Information
Sharing Centre (ReCAAP ISC) was established on 29 November 2006. To date,
18 States have become Contracting Parties to ReCAAP.
ReCAAP establishes a framework for cooperation amongst States, through
information sharing, capacity building and cooperative arrangements in
combating the threat of piracy and armed robbery against ships in Asia.
Information is collected and disseminated by the ReCAAP ISC. ReCAAP also
facilitates capacity building initiatives to improve Contracting Parties’
Overview and national interest summary
The following summary of the proposed treaty action and its claimed
benefits is taken from the National Interest Analysis (NIA).
The security of shipping lanes throughout Asia and of Australia’s
maritime approaches is essential for our international trade. Ships carry 99.5
per cent of Australia’s trade by volume and 74 per cent by value. In 2008-09,
the value of the Australian economy was about A$1.2 trillion, with seaborne
trade contributing A$368 billion. Each year, about A$130
billion worth of Australian trade is transported through the historically
high-risk areas in the Strait of Malacca.
Accession to ReCAAP would enable Australian maritime authorities to draw
on the experience and expertise offered by this forum to promote a broader
focus on piracy and robbery, particularly noting that Australia’s maritime
industry identifies piracy as a risk. Access to information-sharing
arrangements under ReCAAP will also assist in lessening the risk of piracy
incidents and, as a result, commercial costs for sea-borne trade in South-east
The Office of the Inspector of Transport Security assesses that the risk
of piracy within the Australian region is low. However, the threat towards
Australian cargo transported via international shipping is as high as it is for
any other international shipping country or ship operator. ReCAAP membership
offers benefits to Australia’s sea trade by facilitating regional cooperation
to mitigate the risk of piracy and robbery, and accession to ReCAAP will
underscore Australia’s commitment to the eradication of piracy and the
maintenance of secure and safe sea-borne trade.
Reasons for Australia to take the proposed treaty action
Under International Maritime Organization (IMO) Security Forces
Authority (SFA) arrangements, Australia is responsible for a Maritime Search
and Rescue Region (MSRR) that covers just over 10 per cent of the Earth’s
surface and accounts for the carriage of 99 per cent of Australia’s trade by
sea. ReCAAP provides a vehicle to facilitate closer engagement between
regional states and Australia to mitigate risks and to protect Australia’s
vital trade routes.
As a Contracting Party to ReCAAP, Australia would benefit by increased
visibility and awareness to monitor emerging regional threats; learn from the
experience and expertise of other Contracting Parties; and gain access to a
regional maritime security network comprising national authorities who are also
responsible for managing the threat of piracy and armed robbery in our
Instances of piracy and robbery against ships in Asia declined by seven
per cent in 2011. This was the largest year-on-year decrease since ReCAAP
commenced reporting in 2007. The ReCAAP Annual Report suggests that this
decline can be attributed to the littoral States increasing their surveillance
profile and bolstering policing efforts in their respective maritime domains.
Activities conducted under ReCAAP enhance maritime domain awareness and
facilitate improved maritime security through coordinated information-sharing
arrangements and capacity-building initiatives. In addition, Australia’s
ascension to ReCAAP will further enhance Australia’s reputation as a
responsible maritime nation and underline our commitment to regional
Australia’s Border Protection Command, tasked with being the lead agency
for Australia’s engagement, is very positive on ReCAAP: ‘joining ReCAAP serves
Australia well.’ The treaty has even
served as a model for further international agreements.
ReCAAP is proven to be an excellent model for how information
sharing, collaborative capacity building and cooperative arrangements can
reduce the threat of piracy and armed robbery at sea within the region. ReCAAP
is also a best practice model that has been used by the International Maritime
Organisation as a model for the Djibouti Code of Conduct, an arrangement that
deals with the regional threat of Somali based piracy.
Contracting Parties shall implement ReCAAP in accordance with national
laws and regulations, and subject to their available resources or
capabilities. Nothing in ReCAAP shall affect Contracting Parties’ rights or
obligations under existing international agreements or international law.
Contracting Parties are required to take effective measures to:
- prevent and suppress
piracy and armed robbery against ships;
- arrest individuals
who have committed armed robbery against ships;
- seize ships or
aircraft used for committing piracy or armed robbery against ships, to seize
ships taken by and under the control of pirates or persons who have committed
armed robbery against ships, and to seize the property on board such ships; and
- rescue victim ships
and victims of piracy or armed robbery against ships within the Contracting
Parties’ maritime jurisdiction.
Article 4 establishes the ReCAAP ISC, located in Singapore and
consisting of a small Secretariat and a Governing Council composed of
Contracting Parties’ representatives. The Executive Director of the
Secretariat is responsible for the ISC’s day-to-day operations. Contracting Parties
are required to send one representative to the annual Governing Council
meetings in Singapore.
The ISC’s functions include: managing
the expeditious flow among the Contracting Parties of information relating to
incidents of piracy and armed robbery against ships; collecting, collating and
analysing information transmitted by the Contracting Parties concerning piracy
and armed robbery against ships; providing alerts to the Contracting Parties of
imminent threats of piracy or armed robbery against ships; and preparing
statistics and reports from information received.
Contracting Parties are obliged to designate a Focal Point to take
responsibility for communication with the ReCAAP ISC. The Focal Point is
responsible for maintaining lines of communication with other competent
national authorities, such as rescue centres, and relevant non-government
Contracting Parties shall make every effort to require their ships, ship
owners or ship operators to promptly notify relevant national authorities of
any incidents of piracy or armed robbery at sea, and are required to transfer
any relevant information they receive about piracy or armed robbery at sea to
the ReCAAP ISC. Contracting Parties must also promptly disseminate any ReCAAP
ISC alerts about imminent threats of piracy or armed robbery to ships
transiting any identified threat areas.
A Contracting Party may request any other Contracting Party, through the
ISC or directly, to cooperate in detecting, arresting or seizing persons,
vessels or aircraft involved in piracy or armed robbery against ships, or to
rescue victims of piracy or armed robbery against ships. Contracting Parties
that have received such a request are required to respond and to notify the ISC
of the measures taken.
Contracting Parties shall endeavour to extradite individuals who have
committed armed robbery against ships and render mutual legal assistance in
respect of offences described in ReCAAP, at the request of another Contracting
Contracting Parties are encouraged to cooperate to the fullest extent
possible with other Contracting Parties that request capacity-building
assistance, subject to available resources and capabilities.
The responsibilities and jurisdiction of individual nations under ReCAAP
was of interest to the Committee. Border Protection Command (BPC) described
the cooperative nature of counter-piracy agreements:
…there are national sensitivities about security related
cooperation between countries. One of the important elements of counter-piracy
is that it is shared; it does avoid some of those sensitivities and therefore
it does provide us with a framework for dialogue and cooperation that can work
quite effectively and that builds a stronger foundation for other security
In terms of Australia’s particular responsibilities, BPC explained that:
At the moment our responsibilities are bound to the security
forces authority area of Australia. I give the example of an Australian
warship that may be patrolling on the high seas—conducting visits overseas or
deploying to an operational area. It does have an obligation already to be
able to assist in an act of piracy; under the conventional law of the sea there
is an obligation that exists on nations in a similar manner to providing safety
of life at sea, to be able to interdict to stop an act of piracy if able to do
But given this obligation of an
Australian vessel to respond while on the high seas, a question then arose about
legal jurisdictions and whether Australian citizens serving on Australian
vessels could be tried in foreign courts should there be injuries or fatalities
as a result of an Australian interdiction. BPC explained that ultimately Australian
personnel on Australian ships cannot be arrested by foreign authorities without
the consent of the Australian Government:
Accession to ReCAAP does not affect the potential or actual
liability of ADF members or Australian Government personnel undertaking
The national jurisdiction that will apply to a given
incident, and whether there may be competing claims to jurisdiction, will
depend on the circumstances of the incident, including the location of the
vessel(s) at the time of the incident, who was on which vessel when the incident
occurred (ie victim(s) and alleged offender(s)), the nationality of the
victim(s) and alleged offender(s), the nationality of the vessel (i.e. the flag
State of the vessel) and whether States with a possible claim to jurisdiction
seek to exercise that jurisdiction.
Where there are competing claims to jurisdiction, these
issues may be resolved through diplomatic avenues. If a foreign state sought
to exercise jurisdiction over someone in Australia or in Australian custody,
issues of extradition and mutual assistance in criminal matters would be
considered by the Attorney-General.
The principle of sovereign immunity applies to Australian
Government and military vessels. Therefore foreign law enforcement authorities
cannot undertake law enforcement action on board such vessels. As such,
Australian personnel on board those vessels cannot be arrested by foreign
authorities without the consent of Australia.
Where relevant Australian domestic criminal law has
extra-territorial application, Australia may give consideration to domestic
prosecution of the alleged offender.
Obligations under Article 3(1)(a),(b) and (c) are already met under
Australian law in Part IV of the Crimes Act 1914. The obligation to
rescue ships and victims of piracy or armed robbery is met through Australia’s
existing Security Forces Authority (SFA) arrangements. A coordinated response
to an incident of piracy or armed robbery within Australia’s Security Forces
Authority Area (SFAA, concurrent with Australia’s MSRR) would be coordinated by
Border Protection Command (BPC).
Australia’s SFA representative Commander Border Protection Command is
already attending the Governing Council meetings in Singapore. BPC would be
designated as Australia’s ReCAAP Focal Point. BPC already leads and
coordinates whole-of-government maritime security operations to protect
Australia’s interests regarding civil maritime security matters. BPC works
closely with the Australian Maritime Safety Authority (AMSA)
in response to AMSA’s requests for assistance involving safety at sea incidents
within the MSRR.
Australian ships, their owners and operators already observe a series of
notification and incident reporting measures. Australia’s current framework is
sufficient to meet ReCAAP’s essential information-sharing objectives.
Information transfers between Australia’s Focal Point to the ReCAAP ISC,
as well as prompt incident alert dissemination to ships transiting identified
threat areas, would be facilitated through minimal adjustments to existing AMSA
and BPC procedures. Under ReCAAP, Australia would not be obliged to share
information that is subject to a national security classification.
Furthermore, upon accession to ReCAAP, Australian Government agencies
will: conduct a comprehensive education campaign notifying relevant maritime
industry participants about reporting requirements under ReCAAP; consider
amendments to existing notifications to reinforce reporting regime
requirements; and conduct a review of mechanisms to facilitate information
The Attorney-General’s Department has advised that minor amendments to
Australia’s extradition and mutual assistance regulations will be needed so
that Australia is able to respond to requests for extradition and mutual legal
ReCAAP’s entry into force for Australia would not impose a significant
cost burden on the Australian Government. Many ReCAAP obligations are already
met through existing activities. Furthermore, Article 2(1) provides that
Contracting Parties shall implement this Agreement ‘subject to their available
resources and capabilities.’ Australia’s Focal Point would be incorporated
into existing BPC structures.
The ISC will be funded through, host country financing and support,
voluntary contributions by Contracting Parties, international organisations and
other entities; and any other voluntary contributions as agreed upon by the
There are no assessed contributions. However, voluntary monetary
contributions or hosting of capacity building activities are strongly
encouraged. Based on contributions made by other comparable Contracting
Parties, voluntary payments are estimated to cost Australia around A$150,000
per annum. Funds have been provided in BPC’s budget for the financial year
2012/13 for this purpose. There is no known compliance cost associated with
this venture for industry.
The Committee notes that despite the high profile of piracy in recent
times, particularly in the Gulf of Aden and off Somalia, attacks in those
regions are decreasing. Similarly, in South-East Asia, the incidence of piracy
is also reducing. This is not only
through measures like sea patrols being conducted in choke points such as the
Strait of Malacca and the Straits of Singapore, but also through agreements
such as ReCAAP.
The Committee also notes that Australian personnel serving in the Royal
Australian Navy or in Border Protection Command have a set of legal protections
which mean that ultimately Australian personnel on
Australian ships cannot be arrested by foreign authorities without the consent
of the Australian Government.
Given the agreement’s success in fostering cooperation, and the high
dependence that Australia has on maritime trade, the Committee supports the Treaty
and recommends that binding treaty action be taken.
The Committee supports the Regional Cooperation Agreement
on Combating Piracy and Armed Robbery against Ships in Asia (Tokyo, 11
November 2004) and recommends that binding treaty action be taken.