Two significant developments concerning India and sea piracy merit attention. First, after nearly a decade long process, on 21 December 2022, the Indian Parliament (Upper House/Rajya Sabha ) passed the much awaited 'Maritime Anti-Piracy Bill, 2022'. It is a dedicated maritime legislation to counter the threat of maritime piracy on the high seas. Upon assent by the Indian President, it would become an Act and the Indian courts would then be empowered to exercise universal jurisdiction over the offence of maritime piracy as enshrined in 1982 United Nations Convention on the Law of the Seas (UNCLOS). India ratified the 1982 UNCLOS on 29 Jun 1995 and thereby consented to bind itself with the provisions of the Convention.

Some of the salient issues in the Maritime Anti-Piracy Bill, 2022 require elaboration. In terms of defining the Act of Piracy, Sec 2(1) (h) of the Bill is in line with the definition provided under Article 101 of UNCLOS and the application of its provisions has been provided under Sec I (3) of the Bill which makes it applicable to 'high seas'. In this regard, the Bill has defined 'high seas' under Sec 2(1) (e) as a zone that 'includes the Exclusive Economic Zone and all waters beyond the Jurisdiction of any other State'.

High Seas under Article 86 of UNCLOS usually relates to all parts of the sea that are not included in the Exclusive Economic Zone (EEZ). However, an exception under Article 58(2) treats EEZ as High Seas for certain matters as contained in Article 88-115. Accordingly, the authorisation for seizure of a pirate ship or aircraft under Article 105 of UNCLOS is also applicable in High Seas which includes EEZ. Provisions of Maritime Anti-Piracy Bill, 2022 are accordingly in compliance of the International mandate under UNCLOS as the provisions of Bill are applicable in EEZ and all waters beyond the jurisdiction of any other State i.e. beyond the territorial seas of any country.

Enforcement powers for arrest of persons and seizure of ship / property have been entrusted with 'Authorised personnel' under the Bill. The term 'Authorised personnel' has been defined under Sec 2(l) (a) to primarily include officers and sailors of Indian Navy and Coast Guard. Additionally other officers of Central / State Government can also be empowered in this regards. Thus the Bill provides for empowerment of personnel in accordance with Article 107 of UNCLOS which allows for seizure on account of piracy only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

The second development relates to the Indian Ocean High Risk Area (HRA) for sea piracy. Following significant improvement in sea piracy situation in the northern Indian Ocean region, particularly in the Gulf of Aden, the Maritime Safety Committee (MSC) of the International Maritime Organization (IMO), a body under the United Nations, removed the HRA from the midnight of 31 December 2022. The MSC has observed that resolute and persistent counter-piracy efforts by international navies, coast guards and other military forces, and several other international stakeholders such as the mercantile marine, there were no piracy attacks were recorded against merchant ships off Somalia since 2018.

Since the establishment of the HRA as far as 78 degree East longitude in June 2010, which included parts of the west coast of India within the HRA, the Indian ship-owners had faced high insurance and associated operating costs which had direct impact on their profits. In 2015, India approached the MSC to shift the High Risk Area West of 65 degree East Longitude. Pursuant to strong politico-diplomatic efforts and intense counter piracy operations in the Gulf of Aden by Indian naval vessels. it was agreed to redraw the eastern limit of the HRA.  

The removal HRA in northern Indian Ocean is a welcome development and corresponds to efforts undertaken by India for revision of scope of HRA due to marked decrease in pirate activities in Gulf of Aden region. Presently BMP5 measures provide guidance to commercial shipping in HRA for deterring piracy and enhancing maritime security in Gulf of Aden and other regions. Although HRA and BMP are devoid of compulsory legal mandate, both have been endorsed by IMO and UNSC as a measure towards repression of piracy. The controversial practice of employing Private Military Security Companies (PMSC) and Privately Contracted Armed Security Personnel (PCASP) under BMP5 and its predecessors was on a weak footing due to divergent rules of flag states and coastal states on the issue.

With removal of HRA this practice of employing PCASP/ PMSC is also likely to be reduced. With these two grand initiatives, the Indian Ocean region is likely heading for a calm and peaceful future. Indian Anti-piracy legislation surely provides a definitive legal framework for Indian maritime forces to counter any menace of piracy in the region and enhance the India’s stature as a global maritime power.

Lt Cdr Abhimanyu Singh is a serving Indian Navy Officer. The views expressed in the article, are his personal views and in no way represents the position / views of his organisation.