By Prof. Bharat H Desai
In a heartening development, both the houses of the Indian Parliament finally passed a special legislation (December 19 and 21, 2022) for “repression of piracy”. This author has, over the years, consistently called for taking International Law seriously. The Anti-Maritime Piracy Bill 2019 makes International Law of Piracy work, translates into action the Indian Prime Minister’s assurance of “respect for International Law” and reaffirms the official position of “commitment to International Law”. The Standing Committee on External Affairs (SCEA) deserves the credit for providing concrete input that strengthened the original Bill introduced by the External Affairs Minister (EAM) on December 2, 2019. Ostensibly, it seeks to address the challenge of piracy on high seas and give effect to obligation under the United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS with 168 parties was ratified by India on 29 June 1995. It comes 40 years after the ‘Constitution for Oceans’ was adopted at Montego Bay (Jamaica) on December 10, 1982.
Piracy has emerged as a menace in the area surrounding the Gulf of Aden that separates Somalia and Yemen. The Gulf of Aden connects the Arabian Sea to the Red Sea and through the Suez Canal, to the Mediterranean Sea. Since 2008, the Somali pirates have posed serious threat to some 2000 ships that monthly carry the cargo for trade between Asia, Europe and the East Coast of Africa. With the presence of navies in the Gulf of Aden, the pirates have shifted their base and now pose threat to the western coast of India. An intensive patrolling by the Indian Navy and the Coast Guard has led to apprehending of pirates and, in turn, the need to prosecute them under a specialized domestic law. The charge of offences such as armed robbery (section 392) under the Indian Penal Code and invocation of jurisdiction of the Admiralty Courts (dealing with shipping and maritime disputes) have been found to be inadequate. Hence, the need for anti-piracy lex specialis for prosecution of piracy related crimes for ensuring safety of the Indian maritime trade, vessels and the crew.
Piracy as a Global Crime
Historically, piracy has been dealt with under International Law or Law of Nations (jure jentium). It comprises any illegal act of violence or detention or depredation committed by the crew or passengers on the high seas (beyond limits of national jurisdiction). Hence, pirates can be tried and punished by any nation. In fact, pirates have been considered as enemies of humankind (hostis humani generis). For centuries, the maritime trade remained the global hallmark. The age of aero planes has not affected it. Even today, almost 90% of the global trade including oil is transported by ships that pass through the vital sea lanes. In earlier times, the sea piracies were rampant, alike dacoity on the land. Gradually, due to aggressive patrolling by the naval powers as well as regulatory frameworks designed by the global organizations such as the United Nations and the International Maritime Organization, threats to maritime routes have declined. Still, it exists in certain pockets. Eradication of piracy has assumed significance after the Indian Prime Minister’s emphasis on the Blue Economy as an important source of Aatamnirbhar Bharat.
Global Crime Prosecuted in Domestic Courts
Though piracy has been considered an international crime under the International Law of Piracy, it is the domestic courts where pirates have been prosecuted. In one of the well-known cases of piracy by the Chinese nationals (In re Piracy jure gentium: PC 1934) had attacked a cargo junk. They were indicted in Hong Kong for the crime of piracy and found guilty. The Appeal Court of Hong Kong concluded that robbery was a necessary ingredient of the offence of piracy and the accused were acquitted. Still, the Privy Council decided (July 26, 1934) that International law is a living branch of the law. A frustrated attempt to commit piratical robbery was equally piracy jure gentium. The charge was under the international law of piracy, and determined accordingly. The recognition of piracy as a global crime, and the trial and punishment of criminals, are left to the municipal law of each country.
Invocation of the Indian Jurisdiction
It is in this context that the Indian Anti-Maritime Piracy law holds significance. After its introduction in the Lok Sabha (December 02, 2019), it was referred to the SCEA. The Committee examined the Bill and suggested certain amendments in its report submitted in February 2021. Invoking the International Law of Piracy, the Bill draws the mandate specifically from obligations under the UNCLOS (Article 105). It seeks to apply the Indian law for crimes committed in the High Seas, an area “beyond the limits of national jurisdiction”. Article 100 of the UNCLOS, explicitly provides for “repression of piracy on the high seas or in any other place outside the jurisdiction of any state”. This area constitutes the area beyond the Exclusive Economic Zone of India (EEZ), beyond 200 nautical miles. Article 105 specifically enables “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”. It provides that the “courts of the State which carried out the seizure may decide upon the penalties to be imposed”.
As per UNCLOS Article 101, three essential elements are required for an act to constitute piracy: (1) there is an illegal act of violence or detention or depredation, committed for private ends by the crew or passengers of a private ship or a private aircraft (2) committed on the high seas, against another ship or aircraft (3) it is outside the jurisdiction of any State. The letter and spirit of the 2019 Indian law reflects all these elements whose objectives comprise the following: (1) application to all parts of the sea adjacent to and beyond the limits of the EEEZ (2) make the offence of piracy on high seas punishable with imprisonment for life or with death (3) deals with acts or attempts or being accessory to the commission of the offence of piracy (4) presumption of guilt if certain conditions are fulfilled (5) makes the offence of piracy extraditable (6) designation of certain courts for speedy trial for piracy under the new legislation. The preamble to the 2019 Bill draws its mandate from the UNCLOS and uses the word repression (Article 100) of piracy instead of standard words used in a criminal legislation such as elimination, eradication, combating or prohibition. Notwithstanding this, the new law would serve as a deterrent in stamping out the menace of piracy as well as serve as a vital tool for the Navy and the Coast Guard in securing the crucial sea-trade lanes in the vicinity of the Indian waters.
Professor Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies of SIS, JNU. He served as a member of the official Indian Delegations to various multilateral negotiations (2002-2008), coordinated the Making SIS Visible initiative (2012-2020) and Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).