Serious concerns have risen for the international community with the resurgence of piracy in the last two decades. In international law, piracy is considered the vilest of all crimes at sea. Cicero, the Roman legal theorist, summed up the perception of pirates thus: “For a pirate is not included in the number of lawful enemies, but is the common enemy of all…. an enemy with whom treaties are in vain and war remains incessant.”
International law identifies pirates as communis hostis omnium: common enemy of all. Hence, all countries have a right to apprehend pirate ships, attack and board them and bring the pirates to trial and punish them under their national laws. They also have jurisdiction to capture pirates not only for piracy committed within their territorial sea (12 nautical miles from their shores) and over the waters they have control but also for those committed in the high seas — area that is considered as belonging to all mankind. Hot pursuit of the pirates can also be extended to the territorial waters of another country. This explains and justifies the recent actions taken by the international community against piracy.
Piracy attacks are concentrated in busy sea lanes of commerce through which much of the world trade passes. The number of attacks on ships worldwide in 2013 has been reported to be 206 although several attacks go unreported for various reasons, including insurance claims. Pirates seize ships and hold the crew hostage demanding high ransom for the release of the ships and crew. Piracy has been re-established now as lucrative business and the modern-day pirates use heavy duty firepower like automatic weapons and rocket-propelled grenades, satellite phones for communications and other technologically advanced gadgets that allow them to track the movements of ships. Pirates also seize ocean-going fishing or merchant ships and then turn them into “mother ship” and use them as base for further attacks on other ships. They force the crew of captured ships to sail within attacking distance of the unsuspecting ships. These modern developments in piracy have created the need for ships to install new technology to warn and protect them and also led to the practice of carrying armed guards on board ships.
Four major maritime areas have been identified where ships laden with cargo and oil tankers are most susceptible to attacks — the Gulf of Aden and the southern entrance to the Red Sea; Gulf of Guinea near Nigeria and Niger River delta; Malacca Straits between Indonesia and Malaysia and the region around the Indian subcontinent. The international community is effectively staving off pirate attacks by conducting joint maritime military operations and joint naval deployments. For instance, Russia, France, the UK, India, China and the US are engaged in patrolling the waters in the Gulf of Aden. Operation Ocean Shield is conducted by NATO in the Gulf of Aden and off the Horn of Africa. The Djibouti Code of Conduct adopted in 2009 to repress piracy has 18 member nations of the western Indian Ocean region. There are several such military operations and initiatives around the world that clearly indicate that most countries are committed to fight piracy. India has to protect 2.013 million square miles, equal to almost two-thirds of its land area. Most attacks by pirates have been in the waters surrounding India and around extended neighbourhood, carried out by Indonesian and Somali pirates. In case of the ship Alondaro Rainbow Indonesian pirates were apprehended by the Indian Coast Guard and navy. India assumed jurisdiction and brought them to trial in Mumbai and won the praise of the global community.
While the fight against piracy and the protection of sea lanes has been quite successful resulting in a reduction in the number of pirate attacks reported and in some cases the attacks have been thwarted, some major concerns have risen about the global implications of anti-piracy measures. In the face of danger to peace and security, the measures adopted could have other far-reaching and less desirable consequences. Like the counterterrorism measures adopted in the aftermath of 9/11, which were severely criticised, the desire to secure the seas and oceans could have counter effect and create schisms in the global order.
The first concern is regarding the presence of foreign naval powers in the territorial waters of other nations. Some nations fear the presence of the navies of major international and regional powers as not only invasion of their sovereign rights by the entry of armed vessels into their territorial waters but also as a strategy adopted for subtle geostrategic balancing. For instance, China views anti-piracy patrolling by the US as an attempt by the latter to place its naval ships closer to the Chinese mainland.
The second concern that needs to be addressed is the expansion of the naval prowess of nations to combat piracy. There is a well-founded fear that piracy could be used as an ostensible reason for all major powers to increase their naval power and justify many nations becoming “blue water” naval powers. There is a genuine fear that the theatre of war will shift from land to maritime warfare. This also stands to reason in an era where nations are not only seeking to make themselves more and more energy efficient and are favouring feverish activity to bring the energy into theirs by oil tankers and underwater pipelines. The unexploited potential of the deep seabed can also become the cause for serious maritime conflicts in future.
The third major concern is the new trend of armed guards aboard merchant ships and armed anti-piracy vessels. Armed guards aboard ships and anti-piracy fighting ships of private firms are running into trouble regularly for defying maritime law and flouting principles of sovereignty. In February 2012, Italian ship Enrica Lexie shot and killed two Indian fishermen off the Kerala coast claiming that they suspected them to be pirates. In October 2013, the US ship MV Seaman Guard Ohio carrying 35 assault rifles and over 5,000 rounds of ammunition was impounded for entering Indian waters near Tamil Nadu without permission. Under international law only government authorised ships and warships are allowed to carry ammunitions and they have restrictions of movements. Private firms obviously find such anti-piracy measures lucrative businesses but there is apprehension that armed guards aboard ships and anti-piracy ships of private security firms may create a problem larger and more complex than that of piracy. Outsourcing protection of seas and oceans may not be the best long-term solution but it could very well become a long-term complication.
The writer is an expert in international law and founding member of Centre for Security Analysis, Chennai.