COUNTERING MARITIME PIRACY: A SOUTH ASIAN PERSPECTIVE
By Rear Admiral Daya Dharmapriya (SLN retd), former Director General Sri Lanka Coast Guard.
Regional Counter-Piracy Workshop, Colombo, Sri Lanka
27-28 September, 2012
Viewing maritime piracy as an act of crime committed on sea, this paper makes a case for greater non-military
functional collaboration by the South Asian Coast Guards. In doing so, it draws attention to the economic and
human costs with issue specific South Asian concerns over the determination of high risk/war risk areas and
safety/welfare of sea-farers including fishers. With a closer look at the fall out of Privately Contracted Armed
Security Personnel, it singles out the legal/practical aspects of countering Somali piracy while drawing upon the Sri
Lankan experience to develop a counter-piracy framework. The paper concludes with supporting more effective
strategies to eradicate rather than manage Somali piracy.
Maritime piracy and South Asian waters
Covering 74 million square kilometers and 20 percent of the world’s oceans, the Indian Ocean is a crucial transit
route for international maritime cargo for the Persian Gulf, Africa, Asia Pacific and Europe. Important Sea Lines of
Communication (SLOCs) in the Indian Ocean lap up the South Asian waters with the Straits of Lombok and the
Sunda. The Persian Gulf sea lanes almost hug the Sri Lanka coast towards the Strait of Malacca. The SLOCs South
of Sri Lanka’s Dondra Head can be considered a natural point of convergence in the Indian Ocean.
Globalization has both highlighted the criticality of Indian Ocean SLOC’s for trade and energy security and exposed
their vulnerability to maritime threats. Ships carrying oil and gas from the Persian Gulf transit via the Straits of
Hormuz, around Sri Lanka, through the Straits of Malacca off Indonesia’s archipelagic sea lanes, and into the
waters of the South China Sea. Reciprocal traffic, carrying finished goods from China, Japan, Korea, Taiwan and
other regional countries travel on another sea route. All ships destined for East Asia carrying LNG and LPG,
however, pass through Malacca via the sea routes around the South Asian peninsula and abutting the island
nations of Sri Lanka, Maldives, and India’s islands of Lakshadweep, Minicoy and Andaman-Nicobar. The safety and
security of these historically-used SLOC’s has grown further in importance with an expansion of trade and energy
flows between East and South Asia.
Projected to be the world’s single largest importer of oil by 2050, India’s mercantile trade constitutes 41% of its
GDP with a value of 77% and 90% of it is sea-borne. The volume of India's trade through the Gulf of Aden is
estimated close to US$ 110 billion annually with 24 Indian-flagged merchant ships transiting it every month.
Pakistan oil imports of almost 49 million barrels a year come by sea. Somali pirates have come close to disrupting
Pakistan’s energy supplies says Rashid Siddiqi, chairman of the Pakistan National Shipping Corporation (PNSC) that
owns vessels handling 98 percent of Pakistan’s oil imports. Pakistan’s Navy Chief, Admiral Noman Bashir views
piracy as posing a serious threat to global energy and regional security with the Somali pirates active as far away
as the coast of Madagascar, the Arabian Sea, and close to the territorial waters of India.
Among the several concerns over seaborne trade for South Asia such as piracy, maritime terrorism, gun-running,
drug trafficking and human trade ‘sea piracy’ and ‘maritime terrorism’ can be counted as major threats to the
security of SLOCs. Though fundamentally different, a combination of these two for their mutual benefits could
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cause more far reaching disasters for the region and beyond. A likelihood of such linkages between different acts
of crime on sea is a feature of modern piracy that distinguishes it from sea piracy dating as far back as the oceans
were plied for commerce and trade. The widely known Viking ‘warrior looters’ from Scandinavia, between 783AD
and 1066AD however, operated mostly in Medieval Europe. So did the “water dacoits” in many others parts of the
world where seaborne trade was prevalent. The matter to be concerned more about now is that the modus
operandi and tactics of sea pirates puts them in a position to mount an attack well beyond their launching pads
and the costs of piracy have catapulted far beyond the booty collected by the pirates.
Economic and human costs for South Asia
The Somali pirates collected an estimated ransom of $58 million in 2009, $238 million in 2010 and $160 million in
2011. Although a primary objective of Somali piracy, ransom payment for release of the crew, ship and cargo
make up for only one of the calculable direct and indirect economic costs of piracy. Paying Increased insurance
costs, taking longer routes to avoid pirate-infested areas, deploying armed guards on board ships represent the
operating costs for the shipping industry. Round the clock naval patrolling by Operation Atlanta, Task Force 150
and individually operated naval deployments by Russia, China and India constitute the higher costs for the
maritime security establishments in protecting the vital SLOC’s connecting Europe to Asia. Pakistan hosted a 39nation naval exercise, Aman 11, in Karachi in March 2012 and currently commands the Combined Task Force 151,
set up in January 2009 under a UN Security Council mandate to protect vessels especially in the Gulf of Aden and
the western Indian Ocean.
Oceans Beyond Piracy (OBP) puts the direct and indirect costs of piracy for the global economy between an
estimated range of $7 to $12 billion per year including loss of annual tolling thru lesser traffic and losses for the
fishing and tourism industries. The Indian National Shipping Association estimates are higher at $ 9 billion a year
including those for hiring armed security guards and following IMO driven Best Management Practices like greater
energy consuming higher speeds for ships and provision of strong rooms to protect crew against an imminent
piracy assault. The likely effect of 10 additional vessels hijacked could lead to an 11% decrease in exports and
catapult the international trade-related-cost of piracy to 28 billion dollars according to some private estimates.
The costs of anti-piracy actions apprehending, detaining, prosecuting and implementing/executing the sentences
on captured pirates remain largely uncalculated.
For the South Asian littoral countries, the costs of Somali piracy are getting heavier due to a double jeopardy. In
part it is due to the direct costs to avert an attempted push eastwards to the Arabian Sea by the pirates squeezed
off the Gulf of Aden and the African East Coast. It is also a result of the additional costs of loss of business for the
South Asian ports determined by international risk assessment agencies as High Risk Areas. Fairly estimable,
neither of these costs has actually mitigated the burden of ensuring the safety and securing the release of the
South Asian victims of Somali pirates in captivity for the longest periods amidst appalling conditions in violation of
all humanitarian laws and norms.
Since 2008, when it moved from a reactive to proactive response to counter-piracy, India has borne the additional
costs of strengthening its 24x7 surveillance closer to its western coast line as through its early warning posts in
Minicoy. Additional deployments have been made off the Eastern and North Eastern Arabian Sea to check the
piracy movement west ward. The Indian navy has allotted 23 ships in the Gulf of Aden and escorted to safety
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1487 ships, including 1321 foreign flagged vessels from different countries. On patrol in the EEZ of Seychelles and
Mauritius ‘the Indian Navy’s ships and aircrafts routinely visit waters off the Maldives. Under a latest proposal by
India’s ministry of shipping the Central Industrial Security Force is slated to undertake a pilot project to train 100
of its personnel for securing the merchant vessels against pirate attacks at sea. The training is mooted to be
conducted in coordination with the Indian Navy's marine commandos (MARICOS) and would equip CISF with
special weapons as their standard 5.56mm rifles and pistols may not be adequate for their anti-piracy task. The
CISF is already responsible for guarding 14 major Indian seaports like Mumbai, Navi Mumbai, Kolkata, Haldia,
Paradip, Visakhapatnam, Ennore, Chennai, Kochi, Tuticorin, Mangalore, Goa and Kandla. Close to 7000 personnel
are deployed at these ports across the country under an International Seaport Security Code that ensures
worldwide uniformity and standardization of security drills at seaports.
For the shipping industry, the determination of high risk ports/ areas in South Asia sets in a negative multiplier
effect that also pushes up the economic costs of piracy. The designation of one port as high risk damages the
reputation of others too in the area and then increases the costs of cargo transport from one port to another
within the region beside a down- sizing in trade outside. Affected by eroding profit margins due to overcapacity
and rising costs, the shipping industry has lesser resources to commit to the additional costs of providing greater
security to their vessels. When faced with a choice of higher costs of going full throttle when passing through
high-risk zones or splash out on high-tech alternatives like nonlethal blinding lasers and acoustic cannons , the
PNSC vessels in Karachi got a go ahead for ”full throttle” and equipped with low-tech innovations—water
cannons, barbed wire, and gun-wielding scarecrows. The Indian shipping industry protested a 300 fold jump in
insurance costs after a risk assessment in December 2011 by the Joint War Committee (JWC) to extend the risk
zone about 900 miles east to include almost the entire Indian west coast. “Hurting shippers” some premiums
skyrocketed to as much as $150,000 per voyage from $500 according to Essar Shipping Ltd. and Varun Shipping
Co. of India. Bangladesh successfully challenged the designation of Chittagong as “the most dangerous port” by
the International Maritime Bureau. Sri Lanka’s representation resulted in a reversal of the piracy risk assessment
by the Joint War Committee that regulates the hull market (ships) and the War Risk Rating Committee that
imposes a “held cover” assessment to cargo. Both allow underwriters to levy an additional premium as war risk.
As compared to its economic costs, the human costs of piracy are more of a burden for South Asia than any other
region. Of the 188 hostages currently in captivity, nearly one third are from South Asia with India alone
accounting for 43. This grim statistical reality makes the human costs of piracy an issue of cross cutting concern to
all the three stakeholders in OBP’s multi-stakeholder approach: the maritime security establishment, the shipping
industry and the sea farers. South Asian navies of India and Pakistan, otherwise well-equipped to undertake
rescue operations and a record of rescuing each other hostages from ships, are wary of Rules of Engagement to
use force to free the hostages inside Somalia. Pursuing, apprehending and capturing Somali pirates are no
problem for them. But they are hard pressed to overcome the practical implications of what to do with captured
pirates except to keep them in detention as is the case for India that captured and detained 120 of them since
2011. Putting them back on the sea is an option that continues to evoke human rights considerations about the
fate of roughly 500 pirates not returning home from the oceans worldwide. Since the retention of half of the
Indian crew taken hostage aboard Asphalt Venture, even paying ransom by the shippers no longer ensures the
release of hostages still in captivity. Governments mostly see any direct involvement in ransom payment as
making sitting ducks of their sea-farers for extortion by Somali pirates. The South Asian shippers want an
apportioning of responsibility between the ship-operators, the ship-owners and ship-flaggers.
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The plight of hostages is by now well documented in graphic details to make it a highly emotive issue in South
Asia. The families of hostages find it unbearable that no effective national or international action is undertaken to
secure a swift release nor are there any credible assurances that adequate nutrition and medical help would reach
the hostages who are being denied access to their families. In the rising popular cries urgent action to rescue of
safe rescue, release and transfer of hostages, the voices of seafarers are joined in by fishers under attack as easy
targets of piracy. In more than one instance since 2011, the Somali pirates have assaulted fishermen and fishing
vessels of Sri Lankan origin and on one occasion killed two fishermen. The dilemma over ransom payment came to
the fore for Sri Lanka in October 22nd 2011 with the pirates capturing a fishing vessel over 500 miles (in
international waters) off the Somali coast with six fishermen onboard. They demanded a ransom of $6 million and
threatened to kill the fishermen if their demands were not met. The fishermen live on their daily earnings and
barely manage to make ends meet. Hence, neither the fishermen’s families nor the boat owner could possibly pay
the ransom. The government of Sri Lanka was not in a position to negotiate with pirates. Under the UN
Convention on the Law of the Sea (UNCLOS article 100), states must cooperate in the combat of piracy which
discourages the governments to abet piracy by paying the ransom. The fishermen were lucky with the Spanish
Naval Ship Infenta Elena coming to their rescue.
A Liner Shipping Connectivity Index for South Asia
Out of the eight member states of South Asian Association of Regional Cooperation (SAARC) five, namely
Bangladesh, India, Maldives, Pakistan and Sri Lanka are littoral states. Since most of their trade is seaborne, SLOCs
form their lifeline. Ensuring the security of their adjacent SLOC’s against sea-piracy has become a matter of
heightened concern to them as the acts of piracy hitherto confined mostly to seas around the Gulf of Aden and
Malacca Straits have spilt over to South Asian waters. Somali pirates have attacked hundreds of merchant and
fishing vessels in the Arabian Sea and the Indian Ocean region, hijacked a number of merchant vessels and
demanded heavy ransoms for the release of the respective crews/vessels.
Peninsular India and its islands are adjacent to the longest stretch of SLOC’s followed by Pakistan’s close proximity
to the Gulf of Aden and the Horn of Africa. Ranging from 80% to almost 95%; the other littoral states and land
locked states are overwhelmingly dependent on seaborne trade for their imports and exports. However, when it
comes to a proximity to major SLOCs passing South and South East Asian region, it is Sri Lanka that has the easiest
reach. In considering the seaborne trade in South Asia, it is possible to access it through Liner Shipping
Connectivity Index (LSCI). LSCI aims to capture a country’s level of integration into existing liner shipping networks
by measuring liner shipping connectivity. LSCI can be considered a proxy for accessibility to global trade.
13. The following table indicates the LSCI which correspond to the five littoral states of South Asia.
Country
India
Pakistan
Sri Lanka
Bangladesh
Maldives
2004
34.14
20.18
34.68
5.20
4.15
2005
36.88
21.49
33.36
5.07
4.08
2006
42.90
21.82
37.31
5.29
3.90
2007
40.47
24.77
42.43
6.36
4.75
2008
42.18
24.61
46.08
6.40
5.45
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2009
40.97
26.58
34.74
7.91
5.43
2010
41.40
29.48
42.30
7.55
1.65
The table above gives three out of five littoral countries a fair access to Global Trade where major shipping takes
place. Their combined stakes make it imperative for their governments to take a lead in according an urgency to
spearhead greater regional connectivity for anti-piracy actions in the shared interests of South Asian and the
world trade. It was admitted as such during the meeting of the Interior/Home Secretaries of SAARC in 2011.
Emphasizing South Asia’s tremendous dependency on seaborne trade, the Secretary General of SAARC Ms.
Fathima Dhiyana Saeed called upon the meeting to initiate priority action to secure SLOCs in South Asia from
maritime threats security as a prime concern of the member countries. Negotiating a concerted response by
South Asian governments to address their shared concerns over SLOC’s may require a critical look at the adequacy
of the existing legal/ normative frameworks to deal with Somali piracy with its spill -over effect on South Asia.
Legal/practical issues related to Somali piracy
Never before in recorded history have the pirates in detention in over twenty countries outnumbered the
hostages in captivity in a single country by a ratio of 5 to 1. The process of capturing arresting, detaining,
prosecuting and carrying out the sentences raises a host of legal/ practical issues since virtually all
attempted/successful acts of piracy in South Asian waters originate in Somalia. Somalia is a country ravaged by
civil war with one of the powerful local groups “Al Shabab” actively engaged in an insurgency initially directed
against the Somali Transitional Federal Government (TFG). Categorized as a Sunni fundamentalist affiliate of Al
Qaida, Al Shabab condemns piracy under Islamic law. But Somali pirates call themselves “badaadinta badah”
which translates into English as “saviors of the sea”. They claim their actions as protecting the native Somali
waters and their motives as “political” rather than “private” gain. According to some estimates, Al-Shabab
receives up to 20 percent of the pirates’ bounty. Dealing with profit driven pirates is difficult enough by itself
under the global norms that pertain mostly to crimes committed on high seas while nearly 60 % acts of piracy
actually occur close to national territorial waters. But bringing to justice any politically motivated pirates
connected to a fundamentalist Al Shabab could get more daunting for South Asia with its proximity to South West
Asia as it continues to face the combative challenge of Islamic fundamentalism. Issues of “applicable international
human rights laws,” relevant across the board get all the more prominent when dealing with politically motivated
acts even when of criminal nature.
The legal norms/regulations for dealing with Somali pirates are presently a mix of Customary Law (international
law), Treaty Law and UN Security Council resolutions:
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According to UNCLOS, any state may send a warship to board a private vessel, arrest those on board and
subject them to the jurisdiction of its courts. It permits warships to also use reasonable force to that end.
The Convention for the Suppression of Unlawful Acts against Safety of Maritime Navigation prohibits acts
of violence against a person or persons aboard a ship, seizure of a ship and the placing of devices onboard
likely to destroy or damage it. It obliges contracting governments either to extradite or prosecute such
alleged offenders. Within these legal norms, a major problem with arresting and prosecuting pirates is
that though, as a matter of international law, all states have jurisdictions to try pirates legally, not all
South Asian states have adequate national laws for the prosecution of pirates who have not committed
offences against either their national or flag vessel. Questions of national law and international human
rights obligations also arise in pursuing counter-piracy actions to capture, detain, prosecute and carry out
any verdicts of punishment against the pirates
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While UNCLOS requires that States must co-operate to suppress piracy (Art. 100) it only provides that a
capturing/arresting warship may send pirates for trial before its courts. The inference is that States are
under no duty to have adequate national offences committed by pirates to put them on trial and may cooperate in the suppression of piracy by other means. There are instances that naval forces had to release
such captured pirate-suspects as no country was willing to undertake their prosecution. The Convention
for the Suppression of Unlawful Acts against Safety of Maritime Navigation was adopted in 1992 i.e. a
decade and half before Somali piracy reached its peak and the number of captured and detained pirates
put on or awaiting trial reached a record with over 1000 pirates on or awaiting trial.
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Falling under Chapter VII of the UN Charter that authorizes “all necessary means” to counter piracy, the
relevant UN Security Council Resolutions on Somali piracy are 1816, 1838, 1846 and 1851 These
resolutions grant UN member states a mandate to develop a cooperative framework to counter piracy in
the region as well as granting a specific authority to “cooperating states” to enter Somalia’s territorial
waters to repress piracy in a manner consistent with the international law applicable on the high seas. To
be considered a “cooperating state”, a UN member state is under obligation to “cooperate” with the
consent of the (TFG) as notified in advance to the UN Secretary General. The interim between end of the
end of the TFG in August 2012 and the installation of an effective government in Somalia leaves a piracy
affected South Asian state in a vacuum with few clear guidelines on getting prior consent prior to taking
appropriate action. UNSC resolutions authorize states to take action against pirates in Somali waters and
territory, if allowed to do so by the transitional government there, but few have exercised this option out
of fear that the pirates would harm their hostages.
Some of the issues faced by South Asia have surfaced already in the prosecuting of Somali pirates captured by EUNAVFOR in “Operation Atlanta”. Acting under UN Security Council resolution 1851/2008, and in agreement with
“cooperating states”, Kenya has become the primary destination for trying pirates caught off the coast of Somalia.
There is no international consensus, however, over how pirates should be tried once they have been captured and
detained. The laws of France and Italy grant jurisdiction for the prosecution of foreign pirates captured in
international waters. Due to legal ramifications of their prosecution under Danish law Denmark, on the other
hand, had to release within 6 days of its capture all the 10 pirates caught for approaching the Danish ship Absalon
off the coast of Puntland. In contrast the United Kingdom handed over pirates to the Kenyan authorities after
detaining them for several days following the conflict involving HMS Cumberland.
Not only the trial but the capture of pirates raises legal/practical complications. Permissible to interrupt an act of
piracy as it is taking place, the use of force permitted by International Law does not consent to pirate vessels
being shot and sunk. The UNCLOS only allows boarding and confiscation of pirate vessel and arresting of crew
members. When forcibly opposed by pirates, a proportionate use of force may be used where the sinking of the
vessel in question is considered an action of last resort. The problem is that if pirates have already seized control
of a vessel, a hostage situation ensues and naval forces are reluctant to risk these innocent lives. The Indian naval
ship INS Tabar sunk a pirate “mother ship” that was itself a hijacked Thai fishing vessel with the loss of 13 lives.
Rather more complicated is what should be done with captured pirates. The naval vessels of 17 countries
presently patrol the Internationally Recognized Transit Corridor (IRTC) off Somalia, under the coordination of the
EU Naval Force. If one of them captures a pirate, far away from shore and well beyond the range of its helicopters
to make a landfall, should it abandon its mission protecting other merchant ships to take them to a port? Most of
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the modern naval ships do not contain “detention cells” where a pirate can be detained. Most naval ships would
prefer “deterring and disrupting” rather than hunting and arresting.
Legality of Privately Contracted Armed Security Personnel (PCASP)
Employment of Privately Contracted Armed Security Personnel on board ships transiting the high-risk piracy areas
in the Indian Ocean is approved by IMO’s Maritime Safety Committee (MSC). The guidance to ship-owners takes
note of flag state jurisdiction with laws and regulations by the flag state on the use of PCASP applying to their
vessels. Port States’ and Coastal States’ laws may also apply. Paying almost $5,000 a day for a four-man armed
team, shipping companies around the world in 2011 alone spent over one billion dollars on security equipment
and PCASP’s. The success rate of deterring acts of piracy is reported to be 100% for the shipping companies hiring
PCASP’s. Some bigger PCASP supplying companies have improved their turnover by 350 % in the last year.
In South Asia, any need to employ PCASP is confined to India and Pakistan that own and operate commercial
fleets. In the last five years no ship operated by Pakistan or India has been hijacked although within last one year
a dozen attempts were made against Indian vessels, 6 in the Lakshadweep area in the Arabian Sea. Virtually all the
South Asian sea-farers were taken hostage by Somali pirates aboard non-South Asian flag carriers. For India,
permitting PCASP on its commercial fleet has been both a matter of scrutinizing the antecedents of those so
employed as well as complex legal consequences of their engaging pirates in combat close to the South Asian
waters adjacent to 5,423 kilometers (3,400 miles) of) its peninsular coast line. Exercising caution over hiring
armed personnel unfamiliar with the rules of engagement in international and national territorial waters, the
Indian government sanctioned the deployment of armed guards for its flag carriers in 2011 while restricting the
recruitment to the personnel of its former navy and coast guards.
India faced a complex situation in February 2012 when its coastal law enforcement agencies first took custody
and then remanded two of the security crew abroad the Enrica Lexie on passage off the West Coast of India after
it misidentified a fishing vessel as a pirate craft. Armed guards aboard this Italian oil tanker fired at the fishing
vessel killing two innocent fishermen. The incident occurred within the EEZ of India. In March 2012 the armed
guards on board another oil tanker, the Western Jewel, fired at a fishing vessel suspected to be a pirate boat
plying 28 nautical miles west of India ‘s Kolachel Island Two other similar incidents off the west coast of India
were also reported in the last one year. India’s approach to the IMO for clear cut guidelines on PCASP has yielded
interim caution awaiting procedural and jurisdictional hurdles to deal with the use of force by PCASP’s and the
human costs of incidental or deliberate casualties resulting thereof. The IMO considers PCASP as temporary
measure to be overtaken by greater investment in following Best Management Practices. At the initiative of the
US State Department the issues raised by the deployment of PCASP were put up before an Ad hoc meeting this
September of international Contact Group on Piracy off the Coast of Somalia (CGPCS).
A shared South Asian interest in the situation faced by India arises from a collective concern for the safety and
welfare of fishermen plying their trade mostly close to their national territorial waters and now facing a risk of
harassment or death out of suspicion by PCASP. Constituting less than 1% of the worldwide workforce but
accounting for 7% of workforce mortality, fishing is a dangerous occupation even otherwise according to the FAO
and ILO. Preliminary estimates indicate that of the 24,000 deaths a year due to accidents/hazards at sea, nearly
7000 occur in South Asia. Out of 37 million fishermen worldwide, close to 50% are in Bangladesh, India, Maldives,
Pakistan and Sri Lanka. Depending directly on fishery as their only source of livelihood, the ratio between the
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direct and indirect dependents on South Asian fishermen is five times more as compared to the rest of the world
due to the larger size of an average household and the more labor intensive employment in ancillary activities in
South Asia.
No other South Asian country is as dependent on fishing as the archipelago nation of Maldives. "Fishing is the
lifeblood of our nation, it is inborn. From the soil on which we live, to the sea around us, it remains an integral
part of our existence. Fishing, and our country and its people, [are] one and shall remain inseparable forever.”
With a total population of less than 300,000, almost of half of it under 15 years of age and another 3% that is 65
or older, fishing accounts for nearly 50% of the active workforce of Maldives. During the months of June to
October, the regular fishermen workforce doubles over to 11 million in the delta nation of Bangladesh. Peninsular
India’s fishing workforce along its coastline is an estimated 14.5 million. In Pakistan, the fishing sector provides
employment to an estimated 1.5 million with a more than half the workforce in the coastal areas of Sindh and
Baluchistan. Including its advanced ancillary activities the vocational expanse of fishery reaches far beyond the
less than a million workforce of fishermen in the island nation of Sri Lanka.
Sri Lanka’s Legal Framework
As a signatory State to the UNCLOS, Sri Lanka has an obligation to take action against acts of piracy in its domestic
legal system. In conformity with the Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation, the Sri Lankan government has enacted a law which is cited as Suppression of Unlawful Acts
against the Safety of Maritime Navigation (Act No. 42 of 2000). The High Court of Colombo has the exclusive
jurisdiction to try offences under this act. The following offences are listed, and any person who unlawfully and
intentionally commits these offences will be considered guilty and liable for imprisonment for a term not
exceeding twenty years:
-
-
Seizes, or exercises control over a ship by force or threat of force or by any other form of intimidation.
Commits an act of violence against a person onboard a ship, which act is likely to endanger the safe
navigation of such ship.
Destroys or causes damage to a ship or its cargo so as to endanger, or to be likely to endanger the safe
navigation of that ship.
Places or causes to be placed, in any manner whatsoever, a device or substance which is likely to destroy
or cause damage to a ship or its cargo and so as to endanger, or to be likely to endanger, the safe
navigation of that ship.
Destroys, or seriously damages maritime navigation facilities or seriously interferes with their operation,
so as to endanger, or likely to be endanger, the safe navigation of a ship.
Communicates information which he knows to be false, thereby endangering the safe navigation of a ship.
Injures or kills any person, in connection with the commission or the attempted commission of any of the
offenses set out in (a) to (f) above.
Another legal instrument that directly addresses piracy is Sri Lanka’s Piracy Act No. 9 of 2001. This act vests the
coordination and administration of all anti-piracy measures with the Sri Lanka Ports Authority (SLPA) in
consultation with the Director of Merchant Shipping. Part II of this Act elaborates the offences under the act and
the scale of punishment. However, for any person to be put on trial under this act, the offence/s has to be:
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Committed within the territorial waters of Sri Lanka, or
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Committed outside the territorial waters of Sri Lanka by a Sri Lankan, or
In respect of a ship registered in Sri Lanka
These acts have given the necessary legal framework for the domestic law enforcement agencies to act upon
piracy and various other offences within the maritime domain. Any Act of Piracy perpetrated in territorial waters
can be prosecuted under the above mentioned acts whether the person(s) involved are of Sri Lankan origin or
hold a foreign nationality. However, the domestic legal system in Sri Lanka has not accounted for acts of piracy
involving foreign nationals in high seas in its penal code. So, if Sri Lankan state agencies apprehend a foreign
pirate in the high seas, it is not possible to try him within the domestic legal framework. This is a severe
impediment which has to be sorted out through necessary legal enactments and bilateral/multinational
agreements.
A South Asian Initiative for greater functional collaboration by Coast Guards
For South Asia, an advisable pre-requisite to build upon the insights yielded and gains made so far by global
coalitions may be to take a swift look back to move ahead. The first Somali pirates were fishermen from the
afflicted coastal communities, jobless and starving, who organized themselves into groups to demand payments
from interlopers in their waters. It did not take long for international mafia gangs and warlords to sniff out the
lucrative opportunities and muscle in on the act. They brought with them a certain criminal organization and
violence that we see on the increase every day. In realizing the above, a forward looking and effective approach
by the littoral countries of the Indian Ocean, especially the South Asian region, would be to acknowledge that
maritime piracy is not an act of war to be dealt by wherewithal and rules of engagement within the norms and
regulations applicable to combatants and combatants.
Piracy is a “CRIME AT SEA” to be dealt with as a matter of law enforcement and not a military operation.
Therefore the most critical and important step is for the international community to recognize that the solution to
Somali piracy will not be met by military means. Since Coast Guard Services are law enforcement agencies at sea,
the policing of relevant sea areas are better undertaken by Coast Guard Agencies. Coast Guards can deploy lesser
costing Off Shore Patrol Vessels (OPVs) and maritime reconnaissance aircraft rather than naval forces deploying
billion dollars’ worth of Destroyers and Frigates with advanced armaments which include missiles. Counter Piracy
operations do not require vessels with anti-air capability or under water warfare capability either. Hence Coast
Guard operations are considered the more cost effective. Coast Guard agencies of Indian Ocean littoral nations
must take the leading role for policing the South Asian waters. However, the Coast Guard is at liberty to call for
assistance from naval forces if and when the situation demands. Naval forces should then get actively involved to
assist counter piracy operations but only as a measure of “aid to civil power” encompassing all relevant agencies
to counter Somali piracy. There should be a comprehensive approach to investigate its root causes and work from
there.
Right time for South Asia to act
Global coalitions look for a grand strategy to counter Somali piracy, geography, history and politics towards
eradicating rather than managing Somali piracy. Pre-ordained so by geography, the vast expanse of Indian Ocean
lapping the African East Coast has no choke points comparable to the Gulf of Aden and Straits of Malacca. The
recent push of hostage taking closer to the eastern coast of the Arabian Sea is encouraging greater willingness by
Oceans Beyond Piracy | Copyright © 2010-2012 One Earth Future Foundation
525 Zang Street, Broomfield, Colorado 80021, USA
the littoral countries to take a concerted stand on seeking urgent global attention to address and remedy issues of
immediate concern to the region. With an eastward spiral of global trade in materials and services, key framers
and interlocutors of global anti-piracy strategies are favorably inclined to associate South Asia more actively in
formulating and implementing more cost-effective measures that correspond to realistic cost-benefit analyses of
dealing with Somali piracy in 2012. There is a visible fatigue among the contributors of international coalitions to
continue bearing the costs of year-round naval monitoring of the Arabian Sea. This is the right time for South
Asian littoral countries take a lead in: urging immediate remedial action to address issue specific concerns of
South Asia; undertaking/supporting quantifiable examination of the comparative global costs of eradicating and
managing Somali piracy; and facilitate greater information sharing between the coast guards, merchant fleet and
fishing vessels for early alerts and swifter response to an act of piracy.
Oceans Beyond Piracy | Copyright © 2010-2012 One Earth Future Foundation
525 Zang Street, Broomfield, Colorado 80021, USA