Colombo, January 8: Much of the problem in the Indian Ocean area is created by “non-state actors” such as pirates, narcotic and human smugglers and terrorists. But nations in the region and beyond are primarily concerned about fighting inter-state naval wars, and are not equipped, trained and organized for fighting the small and ever present enemy, namely, the intrepid and elusive non-state actor, notes P.K.Balachandran in Daily Express.

Naval battles of the kind seen in the Pacific in World War II are no longer fought.   What law enforcement agencies and navies are actually engaged in these days is fighting pirates, human and narcotic smugglers and poachers. Very soon they will have to fight terrorists in the sea. The small bunch of terrorists who devastated Mumbai in 2008, had come by sea in small boats.

The security of the Indian Ocean is of the utmost importance because it is through the Indian Ocean that 70 % of world trade and 80% of the world’s maritime trade in crude oil passes. Ensuring security in these waters is of primary importance to all trading countries. The fact that the Indian Ocean Region (IOR) is thickly populated with 2.7 billion persons ( 35% of the world’s population), further heightens the need for security.

But ensuring security has been problematic, firstly because of great power rivalries, and secondly because of the existence of “chock points” such as the Strait of Hormuz, Bab el-Mandab and the Straits of Malacca.

It is in view of this grim scenario that a Sri Lankan think tank, Pathfinder Foundation, has drafted a Code of Conduct (CoC) for nations in the Indian Ocean Region (IOR) which are tackling threats to maritime security from “non-state actors” like terrorists, pirates, human and narcotics smugglers and those indulging  in unauthorized and illegal fishing.

Sri Lanka has taken the initiative in this matter for a number of reasons.

“The Indian Ocean Rim Association has designated Sri Lanka as the Lead Country for working out a scheme for ensuring maritime security. The second reason for devising a Code of Conduct  for tackling non-state actors is that they are a problem for all states, both within the IOR and beyond. The third reason is that consensus is easier to secure on this matter as compared to matters involving   competitive power projection by the armed forces of the various powers in the region and beyond,” said Adm.Dr.Jayanath Colombage, a maritime expert who helped draft the CoC.

To this may be added a fourth reason: Sri Lanka has a rich and unique experience in tacking a ruthless non-state actor – the Liberation Tigers of Tamil Eelam  – which had a small and very powerful naval wing. Called the Sea Tigers ,the LTTE’s naval wing showed unprecedented innovativeness and ingenuity in fighting a superior force. The Sri Lankan navy had to be more innovative than the Sea Tigers to beat them eventually.

The Foundation’s  “Code of Conduct”, which is now being circulated for comments and suggestions, will not be a legally binding document like the UN Convention of the Law of the Sea (UNCLOS) but eventually, it could become a binding convention, Adm. Colombage said.

Code of Conduct

The main objectives of the CoC are:  sharing and reporting relevant information;  interdicting ships and/or aircraft suspected of engaging in transnational organized crime in the maritime domain, maritime terrorism, Illegal, Unauthorized and Unregulated (IUU)  fishing and other illegal activities at sea; ensuring that persons committing or attempting to commit in transnational organized crime in the maritime domain, maritime terrorism, IUU fishing and other illegal activities at sea are apprehended and prosecuted; and  facilitating proper care, treatment, and repatriation of seafarers, fishermen, other shipboard personnel and passengers subjected to transnational organized crime in the maritime domain, particularly those who have been subjected to violence.

The CoC has said that signatories should carry out their obligations and responsibilities under it in a manner consistent with the principles of sovereign equality and territorial integrity of states. Non-intervention in the domestic affairs of other States is a must.

Operations to suppress transnational organized crime in the territorial sea of a signatory (a country which has signed the CoC) are the responsibility of, and subject to, the sovereign authority of that signatory.

Measures At National Level

The signatories should develop and implement: (a) appropriate national maritime security policies to safeguard maritime trade from all forms of unlawful acts; (b) bring about national legislation, practices and procedures, which together provide the security necessary for the safe and secure operation of port facilities and ships at all security levels; and (c) national legislation which ensures effective protection of the marine environment.

The signatories should establish a “national maritime security committee or a system” for coordinating activities between departments, agencies, control authorities, and other organizations of the government,  port operators, companies and other entities concerned with, or responsible for the implementation of, compliance with, and enforcement of, measures to enhance maritime security and search and rescue procedures.

The signatories should establish a “national maritime security plan” with related contingency plans (or other systems) for harmonizing and coordinating the implementation of measures designed.

The signatories should prosecute, in their domestic courts, and in accordance with relevant domestic laws, perpetrators of all forms of piracy and unlawful acts on sea.

Protective Measures For Ships

The signatories should encourage states, ship owners, and ship operators to take protective measures against transnational organized crime in the maritime domain, taking into account the relevant international Conventions, Codes, Standards and Recommended Practices, and guidance adopted by the International Maritime Organization (IMO).

Tackling Piracy

The CoC says that the signatories should extend the fullest cooperation for (a) arresting, investigating, and prosecuting persons who have committed piracy or are reasonably suspected of committing piracy; (b) seizing pirate ships and/or aircraft and the property on board such ships and/or aircraft; and (c) rescuing ships, persons, and property subject to piracy.

Limits to Hot Pursuit

A signatory may seize a pirate ship beyond the outer limit of any state’s territorial sea, and arrest the persons and seize the property on board. Any pursuit of a ship, where there are reasonable grounds to suspect that the ship is engaged in piracy, extending in and over the territorial sea of a signatory is subject to the authority of that signatory. No signatory should pursue such a ship in or over the territory or territorial sea of any coastal State without the permission of that State, the CoC says.

Consistent with international law, courts of the signatory which carries out a seizure, may decide upon the penalties to be imposed. Unless otherwise arranged by the affected signatories, any seizure made in the territorial sea of a signatory should be subject to the jurisdiction of that signatory.

Embarked Officers

A signatory may nominate law enforcement or other authorized officials (called  embarked officers) to embark in the patrol ships or aircraft of another signatory ( called host signatory). The embarked officers may be armed in accordance with their national law and policy and the approval of the host signatory.

Asset Seizure and Confiscation

Assets seized, confiscated or forfeited in consequence of any law enforcement operation pursuant to this code, undertaken in the waters of a signatory, should be disposed of in accordance with the laws of that signatory.

Coordination/Information Sharing

The CoC says that each signatory should designate a national focal point to facilitate coordinated, effective, and timely information flow among the signatories.

Incident Reporting

The signatories should undertake development of uniform reporting criteria in order to ensure that an accurate assessment of the threat of piracy and armed robbery in the Indian Ocean is developed taking into account the recommendations adopted by IMO.

The signatories’ National  Centers should (a) collect, collate and analyze the information transmitted by the signatories  and (b) prepare statistics and reports on the basis of the information gathered.

Legal Action  

Signatories should incorporate in national legislation, transnational crimes in the maritime domain in order to ensure effective indictment, prosecution and conviction in the territory of the signatories.

Within three years of the effective date of the CoC, the signatories should consult, at the invitation of the Inter-Regional Coordination Centre, to transform the Code of Conduct into a binding multi-lateral agreement.

END