Category Archives: Law of the Sea

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December 18, 2012

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Jurisdiction, Law of the Sea, Piracy

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The Troubled Waters of India: Problem of Sea Piracy and the Law

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:

  1. Definition of Piracy is verbatim from the United Nations Convention on the Law of the Sea, 1982.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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/

[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

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December 1, 2012

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International Tribunal, Law of the Sea, Piracy

Danger on the High Seas: Piracy in the Modern Setting and its impact on the Phillipines

Written by: Ruben Ayson[1]

Maritime piracy is a growing global issue today. Eugene Kontorovich of the Northwestern University Law School has characterized modern piracy as an “epidemic.”[2] Until two decades ago, piracy was not seen any more as a menace to international shipping. It has unfortunately come back to haunt us, this time not as the pirates of days past but equally in a very violent way, using modern means and methods to the extent that it has become today a major source of concern for crews, ship-owners, insurers, coastal communities and concerned international organizations. The new face of this historic crime exacts worldwide human and financial costs, and poses an existential challenge to the piracy laws developed throughout the centuries. As with ancient civilizations fighting for survival against the pirate scourge,[3] the proliferation of piracy today poses drastic economic and security threats to many nations.

Piracy today includes new tactics employed to carry out a crime predating recorded history. Speedboats and automatic rifles, rather than frigates and swords, recently became the pirate’s weapons of choice.[4] While looting cargo or stealing ships outright remain standard practice, Somali pirates today also kidnap sailors for ransom.[5]

The modern pirate is different from his historical counterpart in many ways. Modern pirates have adapted to the globalized world in terms technical, political, economic, and social developments. In truth, “today’s pirates are considerably more sophisticated than their counterparts of yesteryear.”[6] Today’s pirates make use of the modern technologies that are available to them. They strategically plan each attack with the help of publicly available information about their target. They “often carry satellite phones, global positioning systems, automatic weapons, [and] antitank missiles.”[7] Some pirates now hijack “mother ships,”[8] which they use as bases from which to launch attacks against other vessels up to more than 1,000 miles from shore using “rocket-propelled grenade[s], ladders and extra barrels of fuel.”[9] The use of modern methods and technology has shifted the character of piracy making them precise and effective operations rather than acts which happen by chance. Therefore, the new face of piracy requires more modern means for combating it.

The shipping industry has long been considered one of the most dangerous in the world. Recently, however, piracy has risen up in the list of menaces faced by seamen.[10] According to the January 31, 2012 figures of the worldwide piracy center of the International Maritime Bureau (IMB), Somali pirates are currently holding captive 10 vessels and 159 hostages.[11] One hundred and two incidents of piracy and armed robbery have been reported to the IMB Piracy Reporting Centre (PRC) in the first quarter of 2012.[12] Eleven vessels were hijacked with 212 crew members taken hostage and four crew killed. A further 45 vessels were boarded, with 32 attempted attacks and 14 vessels fired upon – the latter all attributed to either Somali or Nigerian pirates.[13]

These pirates have a great effect on the world economy and trade. Hundreds of seafarers have been held hostage and forced to suffer physical and mental ill-treatment.[14] The Philippine Coast Guard has said that for the last few years, there were already 5,000 ships worldwide attacked by pirates and more than 1,000 seafarers, including Filipinos, have been taken as hostages, or used as human shields against rescuing government and military forces.[15]

This is a very serious problem, and more so for a country like the Philippines. The Philippines, an archipelago, relies heavily on the shipping industry. The Maritime Industry Authority (MARINA) of the Philippines said the country has 140 ships on the international register, and about 90 percent of these ships pass through the pirate hotspots of the Indian Ocean, Gulf of Somalia and Aden.[16]

Another facet of the issue pertains to the deployment a large number of Filipino seamen in the worldwide maritime industry. Figures from the Philippine Overseas Employment Administration show that in 2010, the Philippines deployed 347,000 shipboard personnel, around 5.06 percent higher than in 2009.[17] Despite the increasing risks of piracy, there does not seem to be any shortage of Filipinos wanting to apply for a job in the maritime industry.[18] Based on the projections of the Philippine manning industry, a record number of 400,000 Filipino seafarers will have been deployed worldwide by the end of 2011 despite the crisis in Europe.[19]

This large amount of Filipino seamen deployed can be explained from an economic standpoint. Filipino seafarers, who are better paid than other overseas Filipino workers, send higher than average remittances. In 2007, seafarers sent home $2.2 billion, about 15 percent of the $14.5-billion total remittances from Filipino workers overseas. That is comparatively huge since they make up only three percent of the 8.7 million Filipinos working and living abroad.[20] MARINA said with the Filipino seafarers raking in more than US$3.8 billion in revenue for the country in 2010 and more this year, the threats of piracy need urgent interventions from stakeholders.[21]

Filipino seafarers, comprising one-third of the world’s seafarers or numbering some 300,000, are among the most exposed to risks in the shipping world.[22] With the Philippines providing a large number of seafarers in the world, their vulnerability to piracy is high.[23]A third of all the world’s seafarers are from the Philippines, so it is not surprising that there is another less welcome statistic – in the past year, more Filipinos have been taken hostage than any other nationality.[24] The statistics prove to be staggering and grim. One Filipino shipping crewmember has been taken hostage every six hours somewhere in the world, according to an official running count by the Department of Foreign Affairs (DFA) of the Philippines.[25] Every time there’s a report of a ship hijacked off the coast of Somalia, almost always there’s a Filipino involved.[26] Since 2006 470 Filipinos have died at the hands of pirates.[27]Out of some 400,000 Filipino seafarers, who make up a quarter of the world’s seagoing workforce, 769 were captured between 2006 and 2011.[28] Filipinos are not being particularly singled out by the pirates, it is just that so many people from the Philippines work in the maritime industry.[29] It is because of this that the Philippines has a great interest in ensuring the safety of its seamen and in the measures, both legal and remedial, for preventing and prosecuting piracy.

Piracy significantly affects modern day society as it causes great damage and loss to world trade and economy. Pirates have acted boldly and without fear as they take advantage of the state’s and international community’s inaction. With many of the world’s goods, especially necessities like oil and fuel, passing through sea lanes, the threat of piracy simply cannot be ignored. It persists as a modern day menace due to a number of factors, primary of which is the difficulty to catch pirates as they can easily escape detection and capture in the vast oceans of the world. Many countries, even the big naval powers, do not have the resources to constantly monitor every square mile of water. Ultimately from the practical point of view piracy will be lessened if there is greater political will to stop it and if there is better coordination and cooperation between states that are affected by it.

But that is only one aspect of the problem. Effective laws and procedures, and their strict enforcement, will go a long way in eradicating piracy. But as it is, the existing legal framework proves to be an insufficient mechanism to alleviate the problem. International laws and treaties have not been fully implemented and are too fragmented. Also, while piracy is covered by universal jurisdiction, there is a seeming lack of cases prosecuted, as states have found it to be too burdensome to proceed with cases which entail additional cost and effort on the part of those who have apprehended or are in custody of pirates.

There must be a concerted attempt on the part of states to improve the existing legal framework on piracy as well as ensure that these improved laws are enforced. The establishment of an international tribunal on piracy will be a very important stride as this will provide a proper venue where affected parties will be able to seek redress. No longer must pirates be able to roam the seas with impunity and evade the long arms of the law. They must be brought before the courts of law, and justice must be meted out against them so that they will realize that they are not above the law. And having such a tribunal will show to modern pirates that the international community is united and is serious is combating piracy.

[1] Ruben S. Ayson Jr., a lawyer from the Philippines and currently works for the government of the Republic of the Philippines as an Associate Solicitor in the Office of the Solicitor General. He can be contacted for further information at: sir.ayson@gmail.com

[2] Eugene Kontorovich, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243, 243 (2010)

[3] Pirates plagued the coasts of ancient Greece. Sandholtz & Stiles, supra note 3, at 32; Jesus, supra note 3, at 364.

[4] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[5] Jeffrey Gettleman, Pirates Tell Their Side: They Want Only Money, N.Y. TIMES, Oct. 1, 2008, at A1, available at 2008 WLNR 18637664.

[6] Michael H. Passman, Protections Afforded to Captured Pirates Under the Law of War and International Law, 33 Tul. Mar. L. J. 1, 6 (2008).

[7] Jack A. Gottschalk et al., Jolly Roger with an uzi: The rise and threat of modern piracy 22 (U.S. Naval Institute Press, 2000).

[8] See the International Chamber of Commerce’s Commercial Crime Service website, which maintains a section on Piracy Prone Areas and Warnings, and which is available at http://www.iccccs. org/home/piracy-reporting-centre/prone-areas-and-warnings. As of April 2010, the website warned that Somalis hijack ocean going fishing vessels for piracy operations, using these as mother ships from which to launch smaller boats to attack other vessels.

[9] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[10] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012)

[11] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012)

[12]ICC- IMB Piracy and Armed Robbery Against Ships Report – First Quarter 2012

[13] Ibid.

[14] Supra, note 10.

[15]Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012)

[16] supra, note 13.

[17] Record number of Pinoy seafarers deployed in 2011, http://www.filipinosabroad.com/ofw-news/record-number-pinoy-seafarers-deployed-2011.html, (last visited June 28, 2012)

[18] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012)

[19] Supra, note 16.

[20] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012).

[21] Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012).

[22] PHL can be model for maritime best management practices to deter piracy, http://www.mb.com.ph/node/300768/phl-can-be-model-maritime-be

[23] Ibid.

[24] supra, note 18.

[25] supra, note 19.

[26] supra, note 18.

[27] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012).

[28] Ibid.

[29] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012).