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Editorial Articles


Issue no 41, 07 - 13 JANUARY 2023

Effectively Combating Pirates of the High Seas

 

Sidharath Jha

Piracy not only affects seafarers and trade and industry, but we, sitting miles away in our homes, are also indirectly affected by it. The act of 'Piracy' involves offences that include (i) robbery or hijacking, wherein the objective of the attack is to capture or harm a maritime vessel or its cargo, and (ii) kidnapping the vessel and its crew and threatening them for payment of ransom. Acts of piracy can result in loss of life, physical harm or hostage-taking of seafarers, disruptions to commerce and navigation, financial losses to ship owners, increased insurance premiums and security costs, increased costs to consumers and producers, and damage to the marine environment. These criminal acts can have widespread ramifications, including preventing humanitarian assistance and increasing the costs of future shipments to affected areas. In contemporary times, piracy is not restricted to a particular zone but has become a global problem. However, it is majorly visible in the Gulf of Aden, Gulf of Guinea, Malacca Strait, the Red Sea, and Somali waters. After 2008, piracy saw an unprecedented spike in the Gulf of Aden, off the coast of Somalia. As this region, which connects the Arabian Sea to the Red Sea and to the Mediterranean Sea through the Suez Canal, has many important sea lanes for trade between Asia and Europe/East coast of Africa, stakeholders quickly enhanced naval presence in the area repressing piracy to a large extent. However, major fallout of the development was that pirates began to shift their operations eastwards and southwards in the Indian Ocean, leading to numerous piracy attempts being reported off Seychelles and Mauritius. After reaching a peak in 2012, the number of piracy incidents off the coast of Somalia declined, but a new hotspot for piracy has now emerged in the Gulf of Guinea off the coast of Nigeria. There were also some piracy incidents reported off the western coast of India, which were successfully countered by the Indian Navy and Coast Guard through enhanced vigilance and anti-piracy operations. The Maritime Anti - Piracy Bill, 2022 is a significant development in India's efforts to combat piracy and protect its maritime interests. The Bill allows Indian authorities to take action against pirate ships and to bring the perpetrators to justice in Indian Courts. This is the first dedicated legal framework adopted by India to effectively combat piracy and protect its interests in the high seas. The Bill is also a strong signal to the international community that India is committed to addressing this global problem and working with other countries to ensure the safety and security of the world's oceans.

Highlights of Maritime Anti Piracy Bill, 2022

·         The Bill enables Indian authorities to take action against piracy in the high seas

·         It applies to the sea beyond the Exclusive Economic Zone (EEZ), i.e., beyond 200 nautical miles from India's coastline

·         Participating, organising, aiding, supporting, attempting to commit, and directing others to participate in an act of piracy will be punishable with up to 14 years of imprisonment, and a fine

·         The Bill provides for (i) life imprisonment; or (ii) death, if the act of piracy causes or seeks to cause death.

·         These offences are considered extraditable, meaning that the accused can be transferred to any country for prosecution with which India has signed an extradition treaty. In the absence of such a treaty, offences may be extraditable on the basis of reciprocity between the countries.

·         The Bill fulfils the obligations undertaken by India when it ratified the UN Convention on the Law of Sea (UNCLOS), which requires States to cooperate in the repression of piracy on the high seas or in any other place outside the jurisdiction of the States.

Jurisdiction of the Courts

·         Under the provisions of the Maritime Anti - Piracy Bill, 2022, the Central Government, in consultation with the Chief Justice of the relevant High Court, may designate certain Sessions Courts as the courts responsible for trying offences that fall under the purview of piracy as defined in the Bill.

·         These designated courts will have jurisdiction to try offences committed by a person in the custody of the Indian Navy or Coast Guard, regardless of their nationality, as well as offences committed by Indian citizens, resident foreign nationals in India, or stateless persons. The designated court may also try a person even if they are not physically present in the court.

·         The designated court will not have jurisdiction over offences committed on a foreign ship unless an intervention is requested by the country of origin of the ship, the ship-owner, or any other person on the ship.

·         Warships and Government owned ships employed for non-commercial purposes will not be under the jurisdiction of the designated court

·         These provisions are intended to ensure that the designated court has the authority to hold perpetrators of piracy accountable, while also respecting the sovereignty of other countries and the rights of ship-owners

·         These provisions are intended to ensure that the designated court has the authority to hold perpetrators of piracy accountable, while also respecting the sovereignty of other countries and the rights of ship-owners

Jurisdiction of Ministries, Departments, & Agencies: Piracy involves several Ministries like the Ministry of External Affairs, Ministry of Home Affairs, Ministry of Defence, Shipping, Law and Justice, etc. and each Ministry / Department has been assigned with specific duties and jurisdictions, right from apprehending the suspected pirates till conviction of pirates by designated courts. Various clauses of the Bill specifically address the issues of arrest, investigation and seizure of property, designated court and its jurisdiction and trial of the offences by the designated court. The Ministry of Defence, Indian Navy, Indian Coast Guard will be responsible for taking action to apprehend suspected pirates at sea, to transport such persons to the next port of call and for handing apprehended suspects over to State law enforcing authorities for prosecution. The Ministry of Home Affairs and State law enforcement authorities would then make arrangements for detention of suspected pirates and to bring them to trial by the designated court. The convicted pirates would serve the sentences in Indian jails as directed by the designated courts. They would then be deported to their countries of origin, upon completion of their sentences. The Ministry of External Affairs would be required to intervene in such cases where Indian authorities seek extradition of a pirate held by another country or if a request for extradition of a pirate in India's custody is received from another country.

Territorial Water, High Seas and EEZs: India's maritime boundary recognized by the United Nations Convention on the Law of the Sea (UNCLOS) entails boundaries of territorial waters, contiguous zones, and Exclusive Economic Zones (EEZ). India, with its claim of a 12-nauticalmile (22 km; 14 mi) territorial maritime zone and 200-nauticalmile (370 km; 230 mi) Exclusive Economic Zone (EEZ), has a more than 7,000-kilometre (4,300 mi) maritime border shared with seven nations including Bangladesh, Indonesia, Myanmar, Sri Lanka, Thailand, Pakistan, and the Maldives.

Territorial Waters: These are the waters extending from the coast of a country out to a certain distance, usually 12 nautical miles (22.2 kilometers), and are subject to the sovereign jurisdiction of that country. This means that the laws and regulations of the coastal state apply within its territorial waters, and the coastal state has the right to exercise control over the use and activities within these waters. The coastal state can enforce its laws against foreign vessels that are present in its territorial waters without its permission, including the right to grant or deny access to such vessels and to regulate activities such as fishing and the exploration and exploitation of natural resources.

Exclusive Economic Zone (EEZ): This is a sea area extending beyond and adjacent to a country's territorial sea, up to a maximum of 200 nautical miles from the baseline from which the breadth of the territorial sea is measured. Beyond 200 nautical miles, the sea is considered the high seas and is open to all other states. Under the provisions of the EEZ, a state has the right and control over the area, including the ability to move its ships, fish, collect intelligence, and exercise other sovereign rights. However, under Article 58 of the UNCLOS, foreign countries are also entitled to certain rights within the EEZ of another country. The right to navigation also allows foreign ships to move through the EEZ of another country. The latter part of Article 58 also specifies "other internationally lawful uses of the sea related to these freedoms." UNCLOS stipulates that there should be no violence or threat of violence, or intelligence gathering, while passing through another country's EEZ.

High Seas: These refer to the area of the ocean that is beyond the territorial waters of any nation and is not subject to the jurisdiction of any particular state. The high seas are considered the "common heritage of mankind" and are governed by international laws, specifically the UNCLOS. Under UNCLOS, the high seas are open to all nations for the purposes of navigation, overflight, the laying of cables and pipelines, and other activities related to the exploration and exploitation of the sea, its resources, and the seabed. All nations have the right to use the high seas for these purposes, but they are also required to respect the rights of other nations and to refrain from any activity that would prejudice the interests of other states.

How India Tackled Maritime Piracy Earlier: Till now, India did not have a separate domestic legislation addressing the issue of maritime piracy. In the past, provisions in the Indian Penal Code (1860 IPC) related to armed robbery and the Admiralty jurisdiction of certain courts have been used to prosecute pirates captured by the Indian Navy and the Coast Guard. However, piratical acts committed by foreigners outside of India's territorial waters cannot be prosecuted under the IPC as the jurisdiction of India's legal system is limited to its territorial waters, which extend 12 nautical miles from the coastline. An example of this is the Alondra Rainbow case in 1999, in which the Mumbai High Court acquitted the accused due to a lack of jurisdiction for India to prosecute them. Meanwhile, pirates caught by the Indian forces were extradited to other countries as per bilateral extradition agreements or on case-to-case basis in the absence of bilateral treaties. Extraditions were also made between States that are party to the UNCLOS. However, given the increasing incidence of piracy, including within India's Exclusive Economic Zone (EEZ), and the increasing number of pirates apprehended by the Indian Naval Forces, the need was felt for a comprehensive domestic legislation on piracy. It was decided in early 2011, that the Ministry of External Affairs should coordinate the interministerial exercise of preparing domestic legislation on piracy. Likewise, the Anti-Maritime Piracy Bill 2012 was formulated but the Bill lapsed with the dissolution of the 15th Lok Sabha. The Bill was re-drafted in its present form and introduced in the Lok Sabha on December 9, 2019, and was referred to the Standing Committee on External Affairs for detailed examination and recommendations. After taking into consideration the recommendations of the Standing Committee and following deliberations in both the houses, the Bill was ratified by the Parliament during the recently concluded winter session.

Piracy: Global Scenario: It is worth noting that the rise in global piracy, which began in the mid-1990s, coincided with the growth in maritime trade. As global trade continues to expand, with maritime trade specifically reaching a new high, the number of ships on the ocean carrying goods and resources also increases. This proliferation of shipping, facilitated by the use of container vessels which help reduce costs, means that over 90% of world trade is now transported by sea. Unfortunately, this increase in maritime trade also leads to an increase in piracy, as more ships become targets for pirates. The high volume of slow-moving traffic in key shipping areas like the Strait of Malacca and the Gulf of Aden also provides more opportunities for attacks. According to the latest quarterly report of the International Maritime Bureau (IMB), there were 90 incidents of piracy and armed robbery against ships in the first nine months of 2022. Perpetrators were successful in gaining access to the vessels in 95% of the reported incidents which are broken down as 85 vessels boarded, four attempted attacks, and one vessel hijacked. In many of the cases, vessels were either at anchor or steaming when boarded, with nearly all the incidents occurring during the hours of darkness. Though these are amongst the lowest reports in decades, violence to crew continues with 27 crew taken hostage, six assaulted and five threatened. The risk to the crew, however petty or opportunistic the incident, remains real. Of the 90 global piracy and armed robbery incidents, 13 have been reported in the Gulf of Guinea region - the world's biggest piracy hotspot in recent years. There were 31 reports of incidents in the Singapore Straits in the first nine months of 2022. Vessels underway, including several large vessels and tankers, were boarded in all 31 reports and in most cases, ship stores or properties were stolen. Crews also continue to be at risk with weapons reported in at least 16 incidents, including some involving very large bulk carriers and tankers.

Major Takeaways of the Bill:

·         Strategically, India will be equipped with a legislative framework for the first time to deal with non-military threats at sea.

·         The Bill has huge economic benefits for the nation as India is now a major trading country of the world. As India exports more and imports more, the cost of shipping, whether it is insurance cost, security cost or ransom cost, will come down if piracy is effectively tackled. Because of piracy, insurance covers of ships had increased, impacting the cost of freight, thereby impacting the economy.

·         One of the biggest problems India faced till now was that anybody apprehended outside the territorial water could not be tried. Now with this law, any act of piracy can be tackled with, even if it is happening in the Horns of Africa or anywhere else.

·         The Bill gives validity to the prosecution of pirates in the Exclusive Economic Zone (EEZ) and beyond the EEZ.

·         The Bill fulfils India's commitment to its international obligations against maritime piracy.

·         The Bill emboldens India's position as a benign maritime power as it enables Indian maritime forces (Indian Navy and Indian Coast Guard) to pursue anti-piracy operations anywhere in the world. Earlier, India was engaged in multi-piracy patrols but there were no provisions to take effective legal action against perpetrators.

·         If the act of piracy has been committed on a Indian flagged ship or a ship which is dominated by Indian crew, or if the act of piracy is aimed against an Indian crew who may not be on an Indian ship or an Indian flagged ship but causes harm or injury to the Indian nationals onboard the ship, the act of piracy and pirates can be tried according to the Indian law.

·         The Indian Navy and the Indian Coast Guard will have the wherewithal to apprehend pirates, not only in the Indian Ocean Region but also different parts of the world.

·         The Bill is a great example of sound public policy as the Bill was referred to the Parliamentary Standing Committee where wider deliberations were held and experts' opinions were taken. The Committee made about 18 recommendations, 14 of which were incorporated in the new Bill.

 

Debate over Death Penalty: The provision of death penalty for "acts of piracy that causes or seeks to cause death" was necessitated by the extreme cases of brutality and barbarism displayed by pirates in certain incidences in the past. There have been times when crew members have been left adrift at sea to starve and die. The provision of death penalty has been made to deal with such ghastly cases of violence. The provision mainly acts as a powerful deterrence.

 

(The author is a senior journalist with Sansad TV. He can be reached as jha.siddharath@gmail.com) Views expressed are personal.