India: Piracy Bill is unclear on roles of Navy, Coast Guard

India: Piracy Bill is unclear on roles of Navy, Coast Guard

On April 24, External Affairs Minister S. M. Krishna introduced the Piracy Bill 2012 in the Lok Sabha to provide ‘certainty and clarity’ in the domestic law, which would also give a ‘sound basis for effective prosecution of pirates apprehended by Indian authorities.’ Considering the devastating impact that the scourge of piracy has had on shipping in general and on the Indian seafaring community in particular, this legislation would be a welcome step. However, while the Bill gives ‘certainty and clarity’ in many areas, there are a number of aspects which remain vague or unaddressed.

First, the strengths: Section 3 of the proposed legislation clearly brings out that whoever commits an act of piracy shall be punished with imprisonment for life and where the accused has caused death while committing an act of piracy or an attempt thereof, he may be punished with death. Attempting, aiding, abetting, counselling and procurement for the commission of an offence of piracy are also serious offences.

The setting up of designated courts with provision for daily trialis welcome. There is also a provision to put the burden of proof on the accused, in cases where it has been proved that arms, ammunition, explosives and other incriminating equipment have been recovered from the accused, and there is reason to believe that such arms and ammunition were used in the commission of the crime. The offences under the Act have been included as extraditable offences.

Missing parts

What is missing is a clear provision to assert the rights of Indian Navy or Coast Guard to pursue and capture a pirate ship, arrest the pirates or seize the property on board. Article 105 of the UN Convention on the Law of the Seas (UNCLOS) clearly empowers every state to seize a pirate ship under the control of pirates; arrest the persons on board; and seize the property on board.

There is no requirement of establishing jurisdiction on the basis of territoriality or nationality. Further, the General Assembly of the UN, vide its resolution dated December 7, 2010, called upon state parties to ‘take appropriate steps under their national laws to facilitate the apprehension and prosecution of those suspected to have committed piracy’. The rationale behind the principle of universal jurisdiction expounded in article 105 derives from the notion of seeing piracy as a crime against mankind and a pirate as an enemy of every state.

Article 105 constitutes a clear exception to the principle of exclusive flag state jurisdiction over ships on the high seas. Of course, it may be argued that even in the absence of an express provision to that effect in the national law, the Indian Navy and Coast Guard will still have the authority to seize and arrest.

Thus, when it comes to repression of piracy and enforcement of such measures as may be required under international law, all states have universal jurisdiction. The commentary of the International Law Commission which formed the basis for Article 100 of UNCLOS had stated that “any State having an opportunity of taking measures against piracy, and neglecting to do so, would be failing in a duty laid upon it by international law”. Hence, there is a need to include a clear provision in the proposed law to authorise Indian Naval and Coast Guard ships or military aircraft to exercise such universal jurisdiction as provided in article 105 of UNCLOS and giving them the right of visit where there are reasonable grounds to suspect that a foreign ship is engaged in piracy (Article 110).

The Piracy Bill 2012, however, only makes a statement that on the high seas, or outside the jurisdiction of any state, every state may seize a pirate ship and arrest the persons on board (Section 13), and that the provisions of this Act shall also extend to the exclusive economic zone of India (Section 14). Thus, the Bill refrains from specifically authorising Indian enforcement authorities to exercise such powers. A maritime power of India’s standing need not be hesitant about discharging its international responsibility.

Of course, this principle of universal jurisdiction is to be established and exercised with due care and caution. The Legal Committee of International Maritime Organization has commented that “in carrying out enforcement measures, States remain subject to other relevant rules of international law, including applicable international human rights law”.

There are also limitations and liabilities prescribed (Article 106 and 110(3)) for cases where loss or damage that may be caused because of seizure of ships without adequate grounds or in cases of unfounded exercise of the rights of visit. Thus, the ships of the Indian Coast Guard or warships of the Navy, while exercising such jurisdiction, will do so with caution and will also need to keep all the legal obligations in mind. At the same time, legal protection should be extended to those discharging these functions in good faith.

Sua convention

The guidance issued by the Legal Committee for drafting the national legislations on piracy has recommended the inclusion of certain offences set out in other international conventions that may be relevant to the acts of piracy. For example, the Convention for the Suppression of Unlawful Acts (SUA Convention) against the Safety of Maritime Navigation 1988 deals with unlawful acts which threaten the safety of ships and the security of passengers. It is interesting to note that under the SUA Convention, states are obliged to prescribe penalties in respect of the offences set forth in Article 3, whereas Article 105 of UNCLOS only empowers states to carry out appropriate domestic legislation.

The offences mentioned in the SUA Convention could be included in the piracy legislation to make it more comprehensive. Similarly, the 1979 international convention against the taking of hostages requires states to criminalise the taking of hostages. Considering that India has been a victim of maritime terrorism and transnational organized crimes and also keeping in view the increasing threats from the maritime arena, a suitable legal provision to cover hostage-taking needs to be included in the Bill. Another recommendation of the Legal Committee was to criminalise the acquisition, possession or use of the proceeds of the crime. The scope of the offences under these different conventions is wide and includes both terrorist or politically motivated acts and those committed for private ends. It is, therefore, important that these offences are explicitly included in the proposed law, as it would facilitate prosecution in a broader range of offences.

Lastly, there should be no legal uncertainty in matters of procedure. The procedure to be followed for arrest of a person involved in an act of piracy, his or her transfer to the shore and production before a magistrate having jurisdiction are issues which require clarity. As it may take several days or weeks for transfer of a person to the shore and his or her production before the magistrate, questions of delay and other human-rights-related issues may arise. It is desirable to have a clear and specific provision in the law that formal arrest would take place only after the accused person is handed over to authorities on land. At the same time, basic human rights of the accused person while on transit on sea would need to be ensured.

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