Written by Garima Tiwari
Sea Piracy – a not very talked about subject and also not understood well because it doesn’t directly affect the daily lives of most people. But it is a major concern for shippers, insurance agencies, underwriters, crews and cargo owners and it does ultimately affect all consumers because it can drive up the price of goods, including oil, other commodities and manufactured products. In a way, shipping companies have pretty much been on their own to cope with piracy. Then national navies took up the cause, with loosely coordinated patrols to waive off pirates. This cooperation was enhance by reporting mechanisms and armed guards on ships. Then armed guards came on commercial vessels. Most guards are from private maritime security companies, and some came from host militaries.[i] This issue of confused safety regime came much into light in February 2012, when the Italian Marines based on the tanker Enrica Rexie allegedly fired on an Indian fishing trawler off Kerala, India killing two of her eleven crew. The Marines allegedly mistook the fishing vessel as a pirate vessel. The incident sparked a diplomatic row between India and Italy. [ii] Enrica Rexie was ordered into Kochi where her crew were questioned by officers of the Indian Police.
It must be noted that currently, India does not have a separate domestic legislation on piracy despite the fact that India is a signatory to both United Nations Convention on the Law of the Sea adopted by the United Nations on the 10th December, 1982 and 1988 Suppression of Unlawful Activities Convention. [iii]
In the absence of a dedicated legal mechanism; normally the pirates are charged under the Indian Penal Code(IPC) with Trespassing (Sections 441 & 447), Waging War Against the Country(Section 121), Attempt to Murder(Section 307) and Armed Robbery(Sections 397 and 398) and other laws such as Foreigners and Passport Act. Besides these, certain provisos of the archaic British Admiralty Law were also invoked. An attempt to repeal this vintage Admiralty Law with was initiated in 2005 through a draft Indian Admiralty Bill. Also the UN General Assembly Resolution 64/71 of 12 Mar 2010 which urged all member states to take necessary steps under their national law to facilitate the apprehension and prosecution of personnel who are alleged to have committed acts of piracy. The resolution also called for cooperation with the International Maritime Organization by adopting appropriate procedures including adoption of national legislation.[iv]
Given the increasing incidence of piracy, including within India’s Exclusive Economic Zone, and the increasing number of pirates apprehended by the Indian Naval forces, a need was felt for a domestic legislation on piracy which could provide the necessary legal framework within the country for prosecution of persons for piracy related crimes and in response the Piracy Bill 2012 has been laid.[v] India is not the only country grappling with the intricacies of law dealing with piracy and therefore, the bill might be of some help to other countries in need of it.
Following are some of the features of the Bill:
- Definition of Piracy is verbatim from the United Nations Convention on the Law of the Sea, 1982.
- Punishment: An act of piracy is punishable with imprisonment for life except where the accused has caused death in committing the act of piracy or attempt thereof in which case he may be punished with death and in addition the Designated Court may also subject to any restitution or forfeiture of property involved in the commission of the offence. On one hand, there is a demand for abolishing death penalties at all forums, including death as a punishment might not be taken well by the international community at large.
- An attempt to commit piracy or any unlawful attempt intended to aid, abet, counsel or procure for the commission of an offence of piracy shall also constitute an offence and is liable on conviction to be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine. In addition, an accomplice to an act of piracy shall be liable on conviction to be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.
- Extradition and Reciprocity: The offence shall be deemed to have been included as extraditable offences and provided for in all extraditable treaties made by India. In the absence of a bilateral extradition treaty, the offences under this Act shall be extraditable offences between India and other Convention States on the basis of reciprocity. What is interesting here is that for the purposes of application of the provisions of the Extradition Act, 1962 to the offences under this Act, any ship registered in a Convention State shall, at any time while that ship is plying, be deemed to be within the jurisdiction of that Convention State whether or not it is for the time being also within the jurisdiction of any other country.
- Extension to Exclusive economic Zones: It is also for the first time that the Indian jurisprudence is being extended beyond the territorial waters with particular reference to the Exclusive Economic Zone(EEZ) of India. This might raise some debate since the contiguous zones and EEZ for all practical purposes are considered as high seas except for certain environmental, fiscal related purposes and for the use of maritime resources by the coastal state.
- On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.
The Bill seeks to address the ambiguous nationality issues of Somali pirates[vi] operating from a dysfunctional territory by including stateless persons under the ambit of the legislation. The second issue that has been dealt with is the ‘two ship dilemma’ when one or more of the crew members directly or indirectly facilitate an act of piracy. It also allows for inabsentia prosecution of the offences, and also provides for dedicated Sessions Court under each High Court through a consultative process with stringent bail provisions. An interesting aspect of the Bill is that it puts the onus of proving the innocence on the accused, instead the basic caveat of ‘being innocent until found guilty’.[vii]
In addition there are some talks on coping with the problem like India, Sri Lanka and Maldives will soon sign a trilateral agreement on maritime cooperation to pool resources and share data in the region for better control over the territorial waters, and detect suspicious movements. The agreement aims for cooperation in carrying out surveillance, anti piracy operations and in curbing illegal activities including maritime pollution. A key aspect of information sharing is Maritime Domain Awareness. India had also agreements with Royal Thai and Indonesian naval forces to conduct coordinated patrolling in the east, around the region of the Malacca Straits.[viii]
While the law and agreements are in pipelines, an issue that came up sometime back was whether private military security companies (PMSC) are proving successful. It is agreed that there are many benefits of the PMSC but, the limitation comes from the lack of clear rules of engagement (ROE) on the use of force at sea and the consequences the contractors might face. There is a particular need for greater awareness of the consequences of opening fire against suspected pirates and insurgents who are subsequently found to be innocent. This is evident in light of the incident when the Italian guards wrongfully killed the fishermen.Accidental death or injury, for instance, could expose contractors, and conceivably those that employ them, to exorbitant liability claims and, worse, criminal charges as happened in India. [ix]
It is critical therefore, that a solid international legal framework regulating the use of PMSCs and their ROEs is developed. A strong law, is definitely needed to avoid the ambiguities yet as the challenge is clearly beyond the capability of national navies alone, collaboration with the shippers is essential to getting control of this problem. Lacking international agreement to address the problem could, in the worst cases, lead to conflict.
[i] Lawrence P. Farrell Jr., Piracy: A Threat to Maritime Security and the Global Economy, November 19, 2012 available at http://www.marsecreview.com/2012/11/piracy-a-threat-to-maritime-security-and-the-global-economy/
[v]The Piracy Bill, 2012, http://www.prsindia.org/uploads/media/Piracy/piracy%20bill%20text%20_%202012.pdf
[vi] A Template for Those at Risk: India’s Response to Maritime Piracy 2010-11 by Swadesh M Rana, OEF Project Adviser and Focal Point for South Asia available at http://southasia.oceansbeyondpiracy.org/sites/default/files/a_template_for_those_at_risk_indias_response_to_maritime_piracy_2010-11v3.pdf
[ix] Peter Chalk , Private Maritime Security Companies (PMSCs) and Counter-Piracy available at http://www.counterpiracy.ae/upload/Briefing/Peter%20Chalk-Essay-Eng.pdf