Thursday, December 2, 2021

Ocean Asymmetries & Law Enforcement

By DIG Rajesh Mittal, Principal Director Fisheries & Environment at Indian Coast Guard Headquarters

IADB: The continuing economic development of oceans in-line with envisaged ‘maintenance of peace, justice and progress for all peoples of the world’ and that ‘the problems of ocean space are closely interrelated and need to be addressed as a whole’ warrants scrutiny with the incumbent asymmetries of the modern world towards plausible equity.

The two basic functions – the spatial distribution of national jurisdiction and ensuring international cooperation between States; are not mutually exclusive but must co-exist in the law of the sea. Ocean asymmetries that principally arise out of inequities in terms of social, political, economic, military, or other aspects; pose a serious challenge to law enforcement functions of most maritime law enforcement organisations today.

Ocean Asymmetries

The requirement of rule-based order at sea inherently has elements of regional frameworks which in-term are manifestations of the national outlooks. Whereas maritime security encompasses the elements of coastal security, offshore security, and maritime intelligence; the definition of maritime security has remained elusive. However, in 2008, in reports on Ocean and Law of the Sea the UN Secretary General identified seven specific threats to maritime security[4]. They are as follows : –

(a) Piracy and Armed Robbery against ships.

(b) Terrorists acts involving shipping, offshore installations and other maritime interests.

(c) Illicit trafficking of arms and weapons of mass destruction.

(d) Illicit traffic in narcotics and psychotropic substances.

(e) Smuggling and trafficking of persons by sea.

(f) Illegal unreported and unregulated fishing (IUU fishing).

(g) Intentional and unlawful damage to the marine environment.

These threats, coupled with issues including climate change, limited outlook of developing & land-locked nations, illegal migration by sea, maritime boundary delimitation aspects and survey activities essentially form the asymmetries of the oceans today. The legal frameworks for ensuring ocean equity are contingent upon balancing rights and obligations of the Coastal States for sustainable and peaceful use. Law enforcement in these maritime zones under a particular Coastal State thus assumes great significance.

International Legal Regime

Most of the international legal regime is crystallised in forms of Conventions and Treaties post the Second World War. In addition, bilateral and multilateral agreements have also provided for both substantial as well as procedural legal aspects for attending the ocean asymmetries. However, the contribution of the United Nations Convention on Law of the Sea (LOSC, 1982) underpins the quest of humankind for peaceful use of ocean spaces. This Convention, under various articles, has provisions for various aspects of law enforcement including prevention of slave trade, repression of piracy, illegal fishing, marine pollution, marine safety, human security, and trafficking in drugs and humans. Due to passage of time, the challenges at sea warrant looking beyond the realm of LOSC, 1982.

The International Tribunal for the Law of the Sea (ITLOS), in Case concerning the detention of three Ukrainian naval vessels noted that “the traditional distinction between naval vessels and law enforcement vessels in terms of their roles has become considerably blurred” clearly identifying that the law enforcement operations are different from military operations. This distinction may also be understood in-terms of mandatorily available negotiation instruments within the framework Convention for the former as compared to ‘no rule-based order’ for the latter. This means that States seeking to protect maritime security through law enforcement operations must strictly comply with the rights and duties they have in the different maritime zones as determined by LOSC, 1982.

Notwithstanding, the Convention provides for situations for actively chasing offenders under the regime of ‘Hot Pursuit’ for offences committed in a particular maritime zone. The aspects of criminal and civil jurisdiction over a ship passing through territorial waters of a coastal State are iterated in Articles 27 and 28 respectively of LOSC, 1982. In addition, the ships at sea sail under the exclusive jurisdiction of Flag State under Article 92 of LOSC, 1982 and establish a ‘genuine link’ by exercising their jurisdiction. It may be noted that the according nationality to vessels and the exercise of effective jurisdiction onboard vessels by flag States are important tools against maritime crime. Further, maritime terrorism and proliferation of WMDs are not addressed in LOSC, 1982. Apart from the six freedoms of the High Seas, jurisdictional virtues may be drawn from the regimes of crimes of Universal Jurisdiction as well as bilateral and multilateral treaty instruments. Both these arrangements provide a mandate even beyond Exclusive Economic Zones. The International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 is one good example.

National Legal Regime

Domestication of international legal regimes and implementing the same at operational levels require a well-structured organogram. The evolution of laws in India in terms of armed forces, post-independence in 1947, saw enactment of Army and Air Force Acts in 1950, Navy Act in 1957 and the Maritime Zones of India Act in 1976, much ahead of the final conference of United Nation’s on Law of the Sea in 1982(LOSC,1982). This temporal order indicates clear intent for creation of an organisation like Indian Coast Guard (ICG) as a law enforcement tool for effecting maritime security at sea. The Organisation provides for a non-aggressive, ocean law enforcement mechanism with an economy of effort maintaining national and international peace-keeping outlook as a potent tool for the government.

In the Indian context, ICG has been aptly mandated by the Coast Guard Act 1978. However, considering the nature of the Force and the purposes for which it would be employed, the Coast Guard was constituted as a separate armed force of the Union under a Director-General. ICG is shouldering more than 70% of the responsibilities at sea ranging from environmental, safety, security, and international diplomacy. The service also provides for bridging Central and State agencies besides coordination with almost 14 ministries for regulating the ocean affairs in the maritime zones.

Law Enforcement

The aspects of piracy and armed robbery have generated many debates in the past and have been recognised as crimes subject to universal jurisdiction. It is clearly understood that any act of piracy must involve two ships or aircraft (pirate and victim), must be directed at high sea or beyond jurisdiction of any State, committed by the crew of a private ship along with illegal act of violence or detention or any act of depredation for private ends. The 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention) and Protocol 2005 thereof has tried to provide jurisdictional criteria for a broad range of offences along with well-defined geographical scope. The Convention adopts ship-boarding procedures also. However, SUA Convention was principally targeted at maritime terrorism, yet the entire text is devoid of the word ‘terrorism’ let alone defining it.

Maintenance of peace and security at sea has seen challenges as vivid as 26/11 highlighting the vulnerabilities posed by asymmetries of the ocean spaces. Dangers of maritime terrorism, arms & drugs trafficking, contraband smuggling along with the proliferation of Weapons of Mass Destruction (WMD) require continuous and concerted efforts for law enforcement. The line of distinction between marine scientific research and a military survey may be difficult to determine because the means of data collection used in marine scientific research and military surveys may sometimes be the same and the difference consists only in the motivation and intent for the survey. Based on the United Nations Food and Agriculture Organisation’s (UNFAO) assessment, the fraction of fish stocks that are within biologically sustainable levels decreased from 90 % in 1974 to 65.8 % in 2017(Organization, 2020). Further, the connection of fishing boats involving Illegal, Unreported and Unregulated (IUU) fishing in other crimes under the garb of fishing have been observed frequently. The UNFAO created the Port State Measures Agreement to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing in 2009 which became legally binding in June 2016. Natural disasters have posed threat to mankind at sea and areas adjacent to it since time immemorial and yet civilisations have thrived alongside these water bodies. Cyclones, Tsunamis, and rising sea-water levels are the cause of great tragedies. However, man-made disasters, especially the potential scale of these disasters, may not be attributable to the forces of Mother Nature. The spectre of human tragedy at sea saw its zenith in maritime migration across the Mediterranean and is still continuing. The other parts of the globe are also facing similar problems. The issues related range from socio-economic aspects of the country of origin, point of export, vessels of opportunity and the destination countries. Even the collective will of the EU proved apocryphal in providing solutions. The scale and universality of transnational crimes makes non-institutional approaches null.

Conclusion.

Dr Sam Bateman, a former Commodore with the Royal Australian Navy, makes the following key observations : –

“There has been an increasing ‘de-militarisation’ of the concept of maritime security in peace- time and increased use of non-military agencies such as coast guards. For many maritime security tasks, coast guards can be cost effective and do not carry the political sensitivities associated with navies.”

Recent hauls of arms, ammunition, and drugs along with contrabands like endangered wild-life species by ICG are notable indicators for rise in trans-national crimes. Accordingly, the VBSS powers conferred to the Indian Coast Guard vide S.R.O. 16(E) dated 05 Dec 19are testimony to adherence with international rule-based order with measured response and proportionality as

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