By Satvik Pareek and Avadhesh Pareek
INTRODUCTION
Maritime Piracy continues to be a persistent challenge for the world as it jeopardizes the security of maritime trade and disrupts international trade flows. The international community has adopted two significant conventions on maritime security: the 1982 United Nations Convention on the Law of the Sea [hereinafter “UNCLOS”] and the 1988 Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation [hereinafter “SUA Convention”]. India is a signatory to both the UNCLOS and the SUA Convention. In 2009, piracy in the Indian Ocean and neighbouring regions reached a peak with 223 reported incidents.[1] To combat this issue, the Indian Navy has been actively involved in anti-piracy operations since 2008, deploying ships in the Gulf of Aden. Since then, there has been a substantial decrease in the number of piracy incidents in the region. Recently, the international maritime bodies have officially removed the Indian Ocean region from the “High-Risk Area for piracy”.[2] This is a testament to the success of India’s anti-piracy policy in this region. However, until January 31st, 2023, the date on which the President of India granted assent to the Maritime Anti-Piracy Act, 2022 (hereinafter referred to as the “Piracy Act”), India lacked a dedicated legal framework to address the issue of piracy. This legislative milestone signifies a pivotal juncture in India’s legal framework, as it stands as the first Act of Parliament addressing the subject of piracy.
In this article, the authors aim to carefully study the Piracy Act in light of the UNCLOS and the SUA Convention, along with looking at anti-piracy laws from different countries.
WHY WAS THE PIRACY ACT NEEDED?
In the absence of specific legislation on piracy, Indian courts referred to the existing provisions of the Indian Penal Code [hereinafter “IPC”] and other applicable criminal acts in force. This made prosecution of pirates difficult in India. The MV Alondra Rainbow hijacking case wherein the Bombay High Court overruled the ruling of the Sessions Court and acquitted all the accused due to the non-existence of a specific legal regime on piracy is an apt example of this difficulty.[3] This necessitated the enactment of separate legislation on piracy. The Piracy Act defines and criminalizes the offence of piracy and provides for prosecution and extradition thereof.
GIVING EFFECT TO THE UNCLOS
The preamble of the Piracy Act states that it aims to implement the provisions of the UNCLOS relating to the suppression of piracy on the high seas.[4] According to the UNCLOS, it is the responsibility of all the member states to work together to suppress piracy.[5] The UNCLOS authorizes the member states to use their ships to seize pirate ships and arrest pirates and gives authority to prosecute pirates, regardless of their nationality.[6] However, it is noteworthy that the provisions of the UNCLOS on piracy do not extend to territorial waters. The Piracy Act defines piracy on the lines of the definition given in Article 101 of the UNCLOS. As per the following sub-clauses of Section 2(h) of the Piracy Act, Piracy means,
“(i) any illegal act of violence or detention or any act of depredation committed for private ends by any person or by the crew or any passenger of a private ship and directed on the high seas against another ship or any person or property on board such ship;
(ii) any act of voluntary participation in the operation of a ship with knowledge of facts, making it a pirate ship;
(iii) any act of inciting or of intentionally facilitating an act described in sub-clause (i) or sub-clause (ii); or
(iv) any act which is deemed piratical under the international law including customary international law.”
This definition of piracy is criticized for its rigid and narrow approach that fails to encompass other criminal acts on the seas. Some of the major criticisms include:
- Violence, detention, and depredation: The wording of sub-clause (i) implies that violence, detention, and depredation are essential constituents of piracy. Non-violent acts such as fraud, deception, and other similar means are kept out of the ambit of piracy.
- Obsolescent Definition: This definition does not keep pace with technological evolution. This definition does not recognize cyber attacks on Internet-connected maritime cargo systems and other similar attacks on the shipping industry, which are referred to by some as “cyberpiracy”.[7]
- High Seas: The definition expressly covers acts committed on the high seas which also include the Exclusive Economic Zone(“EEZ”) and does not include acts committed in the territorial waters.[8]
- Private ends: The term “private ends” is vague and ambiguous, leading to multiple contradictory interpretations. The debate continues as to whether politically motivated acts and terrorism are included in the term. On one hand, a court in the USA included politically motivated terror attacks in the ambit of piracy.[9] On the other hand, Harvard Research Draft excluded acts committed for political motives from the scope of piracy.[10] Overall, it suggests that the term “private ends” is not well-defined and can lead to inconsistent interpretations and applications, which can have significant implications for judicial decision-making in India.
- Two Ships: Since the UNCLOS definition requires two ships to constitute piracy, it does not include Hijacking, which involves the use of force by passengers to gain control of a ship and carry out violent activities on board.
ORIGIN OF THE SUA CONVENTION
The Achille Lauro Hijacking brought to light the inadequacies of the UNCLOS definition of piracy. An Israeli Ambassador in his book described this incident as:
“[M]embers of the Palestine Liberation Front (PLF) overran the Achille Lauro and held its twelve American passengers at gunpoint. . . . the PLF gunmen did not merely incarcerate the Americans but decided to make an example of one of them. Their choice was a handicapped sixty-nine year old New Yorker named Leon Klinghoffer, an American Jew. The terrorists pushed Klinghoffer’s wheelchair to the edge of the deck, shot him in the back, and pitched his still-twitching body into the sea.”[11]
The hijackers could not be prosecuted under the UNCLOS because their acts did not fulfill the two-ship requirement.[12] These inadequacies of the UNCLOS definition of piracy were recognized by the international community, and the adoption of a more comprehensive legal framework to combat maritime terrorism became necessary. Thus, the SUA convention was adopted. The SUA Convention delineates various illicit actions such as hijacking, violence against individuals aboard a vessel, and other activities that jeopardize the safety of a ship.[13] It also mandates states to take necessary measures to exercise jurisdiction over the offences set forth therein.[14] Although the SUA convention does not mention “piracy”, it comprehensively addresses those illicit actions which are frequently committed in pursuance of piracy. However, the SUA convention grants authority only to the state parties, but this does not restrict the universal applicability of the SUA convention in practice, because more than 160 countries are parties to this convention. Moreover, the United Nations Security Council[hereinafter “UNSC”] in resolution 1846 also endorsed the use of the SUA Convention as a legal instrument against piracy and for the first time prescribed that it could be used to prosecute pirates off the Somalian coast.[15] This established a precedent supporting the universal application of the SUA convention in matters relating to piracy. Therefore, the SUA Convention is considered a more comprehensive universal legal instrument for addressing a spectrum of maritime offences, including piracy as it encompasses a range of criminal acts that extend beyond the traditional definition of piracy in the UNCLOS. The SUA Convention was incorporated into India through the enactment of the Suppression of Unlawful Acts Against Safety Of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002. [hereinafter “SUA Act”].
PIRACY LAWS AROUND THE WORLD
During the drafting of The Anti-Maritime Piracy Bill, 2019, piracy laws of various countries, including Australia and Sri Lanka were considered.[16] While Sri Lanka also has incorporated the SUA Convention[17], the Sri Lankan Act on Piracy does not strictly incorporate the UNCLOS. The Sri Lankan definition of piracy also encompasses means of theft, force, intimidation, deception, and fraud, and is not restricted to any specific type of activity, a particular area of jurisdiction, or the requirement of two ships.[18] In Australia, piracy is defined and criminalized in its penal code itself.[19] While the Australian definition of piracy, to some extent, is similar to that provided in the UNCLOS, it has a wider application, as it also extends to the territorial sea of Australia.[20] Thus, it also follows the IMO guidelines on “Armed Robbery Against Ships”.[21] Additionally, the Japanese legislation on piracy harmoniously incorporates provisions of both the UNCLOS and the SUA Convention, providing an extensive legal regime[22]. The law in Kenya governing maritime activities is also not strictly derived from the UNCLOS, but rather encompasses a wider range of international conventions and guidelines integrated into a single statute.[23]
None of the countries discussed above have adopted the UNCLOS definition as it is. Instead, these countries have defined piracy on their terms with modifications in their domestic legislation and still utilize the universal jurisdiction granted in the UNCLOS and other international treaties.
INDIAN LEGAL MECHANISM AFTER THE PIRACY ACT
It comes as a surprise that despite taking into consideration the extensive piracy laws of the foreign countries discussed above, no substantial changes were made in the Piracy Act. Indian legislators could have done better in this regard as the provisions of the Piracy Act overlap with the existing SUA Act. The Piracy Act extends to the high seas, including the EEZ of India. Whereas, the SUA Act applies to the territorial waters and the EEZ of India.[24] While the SUA Act does not expressly grant jurisdiction over crimes committed on the high seas, the provisions of the SUA Act provide that it shall apply to offences committed outside India by any person, even if that person is found on the territory of a state that is not a party to the SUA convention.[25] Therefore, it may be construed that the SUA Act extends beyond the EEZ of India. Application of both the statutes(the Piracy Act and the SUA Act) within and beyond the EEZ may give rise to complications and inconsistencies in their applicability and enforcement because the UNCLOS definition incorporated in the Piracy Act(that expressly defines piracy), does not encompass all the criminal acts defined in the SUA Act. In such context, harmonious construction of the Piracy Act with the SUA Act becomes critical and with the Piracy Act now in force, it depends only on how the courts construe “private ends” under the Piracy Act as it is unclear whether the term excludes political acts and other offences that are criminalized in the SUA Act. These issues will need to be resolved to ensure a practical legal mechanism. Upon perusal of both statutes, it appears that in the event of a reported incident of hijacking, within the EEZ of India, the provisions of the SUA Act apply[26]. Similarly, the provisions of the SUA Act may also apply independently of the Piracy Act in case an act (of “piracy” as defined in the Piracy Act) is committed within the EEZ. However, given its specificity, the Piracy Act shall supersede the SUA Act, in matters relating to piracy in accordance with the principle of generalia specialibus non derogant.[27] This suggests a potential overlap and ambiguity in the mechanism governing maritime incidents within the EEZ of India. The Possibility of these legal complications is raised due to the strict incorporation of the UNCLOS definition in the Piracy Act.
CONCLUSION
The Piracy Act is undoubtedly a positive step forward, but it falls short in comparison to the more comprehensive anti-piracy laws of other nations. The literal incorporation of the UNCLOS definition raises questions about its applicability and the potential overlap with the provisions of the SUA Act adds further complexity to the anti-piracy law. Therefore, a detailed evaluation of the scope and applicability of the legislation is necessary to determine its effectiveness as a legal framework for addressing piracy.
[1] United Nations Office on Drugs and Crime, TOCTA report 2010 (low RES) (2010), https://www.unodc.org/documents/data-and-analysis/tocta/9.Maritime_piracy.pdf ( Mar. 7, 2023, 12:37 PM).
[2] International Chamber of Shipping, Shipping industry to remove the Indian Ocean High Risk Area, International Chamber of Shipping (Aug. 29, 2022), https://www.ics- shipping.org/press-release/shipping-industry-to-remove-the-indian-ocean-high-risk-area/ (Mar 1, 2023, 11:07 AM).
[3] Vijay Sakhuja, Maritime Legal Conundrum, ipcs (2005) http://www.ipcs.org/comm_select.php?articleNo=1778 (Mar. 2, 2023, 10:16 AM).
[4] The Maritime Anti-Piracy Act, 2022, No. 3, Acts of Parliament, 2023 (India).
[5] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, art. 100.
[6] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, art. 105.
[7] Frank Akpan et al., Cybersecurity challenges in the Maritime Sector, 2 Network 123, 130- 131 (2022).
[8] The Maritime Anti-Piracy Act, 2022, No. 3, § 2(1)(e), Acts of Parliament, 2023 (India).
[9] United States v. The Ambrose Light, 25 F 408, 412-13 (1885).
[10] Clyde H. Crockett, Toward a Revision of the International Law of Piracy, 26 DePaul L. Rev. 78, 93 (1976).
[11] Michael B. Oren, Power, Faith, and Fantasy 556 (W. W. Norton & Company 2007).
[12] Australian Law Reform Commission, Criminal Admiralty Jurisdiction and Prize, ALRC Report 48 (1990).
[13] SUA Convention, Mar. 10, 1988, 1678 U.N.T.S. 221, art. 3.
[14] SUA Convention, Mar. 10, 1988, 1678 U.N.T.S. 221, art. 4.
[15] James Kraska, Contemporary maritime piracy: international law, strategy, and diplomacy at sea 159 (Praeger 2011).
[16] Standing Committee on External Affairs, Sixth Report: The Anti-Maritime Piracy Bill, 2019 (Seventeenth Lok Sabha), Ministry of External Affairs, India (2020), https://prsindia.org/files/bills_acts/bills_parliament/2019/17_External_Affairs_6.pdf.
[17] The Suppression of Unlawful Acts Against Safety of Maritime Navigation Act, 2000, No. 42, Acts of Parliament, 2000 (Sri Lanka).
[18] The Piracy Act, 2001, § 3, No. 9, Acts of Parliament, 2001 (Sri Lanka).
[19] Crimes Act 1914 (Cth).
[20] Crimes Act 1914 (Cth) s 51.
[21] IMO Resolution A.1025(26), Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery Against Ships ( Dec. 2, 2009).
[22] Article 2, Law on Punishment of and Measures Against Acts of Piracy (Japan).
[23] The Merchant Shipping Act, 2009, Part XVI, No. 4, Acts of Parliament 2009 (Kenya).
[24] The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, § 1(2), No. 69, Acts of Parliament, 2002 (India).
[25] The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, § 1(3)(a) & 1(4)(c), No. 69, Acts of Parliament, 2002 (India).
[26] The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, § 3, No. 69, Acts of Parliament, 2002 (India).
[27] The Supreme Court has applied this principle in instances of overlapping criminal provisions to give preference to specific laws over general laws in various cases such as in Suresh Nanda v C.B.I, (2008) 3 S.C.C. 674 (India).
Centre for Maritime Law 