1199 National 960304 PDF

LAW OF SEA AND PIRACY:
NATIONAL AND
INTERNATIONAL SCENARIO
by:
Ajaymeet singh & YASER HAMIDI
‫ﺳﺮﺷﻨﺎﺳﻪ‪ :‬ﺳﯿﻨﮓ‪ ،‬آﺟﺎﯾﻤﯿﺖ ‪Singh, Ajaymeet‬‬
‫ﻋﻨﻮان و ﻧﺎم ﭘﺪﯾﺪآور‪:‬‬
‫‪Law of sea and piracy : national and international scenario / by Ajaymeet singh & Yaser Hamidi‬‬
‫ﻣﺸﺨﺼﺎت ﻧﺸﺮ‪ :‬اﻫﻮاز‪ :‬ﭘﮋوﻫﻨﺪﮔﺎن راه داﻧﺶ‪2017 =1396 ،‬م‪.‬‬
‫ﺷﺎﺑﮏ‪ 300000 :‬رﯾﺎل ‪978- 600- 345- 194- 0 :‬‬ ‫ﻣﺸﺨﺼﺎت ﻇﺎﻫﺮي‪431 :‬ص‪.‬‬
‫وﺿﻌﯿﺖ ﻓﻬﺮﺳﺖ ﻧﻮﯾﺴﯽ‪ :‬ﻓﯿﭙﺎ‬
‫آواﻧﻮﯾﺴﯽ ﻋﻨﻮان‪ :‬ﻻو‪...‬‬ ‫ﯾﺎدداﺷﺖ‪ :‬اﻧﮕﻠﯿﺴﯽ‪.‬‬
‫ﻣﻮﺿﻮع‪(Access to the sea (International law :‬‬ ‫ﻣﻮﺿﻮع‪ :‬ﺣﻘﻮق ﺑﯿﻦاﻟﻤﻠﻞ در ﯾﺎﻫﺎ‬
‫ﻣﻮﺿﻮع‪Pirates :‬‬ ‫ﻣﻮﺿﻮع‪ :‬دزدان درﯾﺎ ﯾﯽ‬
‫ﺷﻨﺎﺳﻪ اﻓﺰوده‪Hamidi, Yaser :‬‬ ‫ﺷﻨﺎﺳﻪ اﻓﺰوده‪ :‬ﺣﻤﯿﺪي‪ ،‬ﯾﺎﺳﺮ‪- 1365 ،‬‬
‫رده ﺑﻨﺪ ي ﮐﻨﮕﺮه‪ 9 1396 :‬ل ‪ 9‬س ‪KZA 1555 /‬‬
‫رده ﺑﻨﺪي دﯾﻮ ﯾﯽ‪341/444 :‬‬
‫ﺷﻤﺎره ﮐﺘﺎﺑﺸﻨﺎﺳﯽ ﻣﻠﯽ‪4712638 :‬‬
‫ﻧﺎﺷﺮ‪ :‬ﭘﮋوﻫﻨﺪﮔﺎن راه داﻧﺶ‬

‫ﺷﻤﺎره ﻧﺸﺮ‪1192 :‬‬
‫ﻧﺎم ﮐﺘﺎب‪LAW OF SEA AND PIRACY: NATIONAL AND :‬‬
‫‪INTERNATIONAL SCENARIO‬‬
‫ﻧﻮﯾﺴﻨﺪﮔﺎن‪ :‬ﯾﺎﺳﺮ ﺣﻤﯿﺪي‪Ajaymeet singh-‬‬
‫ﺗﯿﺮاژ‪1000 :‬‬
‫ﻧﻮﺑﺖ ﭼﺎپ‪ :‬اول‬
‫ﭼﺎپ‪ :‬ﺗﻮرﻧﮓ‬
‫ﺻﻔﺤﻪ آراﺋﯽ‪ :‬ﭘﮋوﻫﻨﺪﮔﺎن‬
‫ﭼﺎپ اول‪1396 :‬‬
‫ﺳﺎﯾﺰ‪ :‬وزﯾﺮي‬
‫ﺷﺎﺑﮏ‪978-600-345-194-0 :‬‬
‫ﻗﯿﻤﺖ‪ 30000 :‬ﺗﻮﻣﺎن‬
‫‪www. ketab. ir/pajo‬‬
‫ﺣﻖ ﭼﺎپ و ﻧﺸﺮ ﻣﺤﻔﻮظ اﺳﺖ‪.‬‬

‫ﻃﺒﻖ ﻗﺎﻧﻮن ﺣﻘﻮق ﻧﻮﯾﺴﻨﺪﮔﺎن و ﻣﺼﻨﻔﺎن ﻫﺮﮔﻮﻧﻪ ﮐﭙﯽ ﺑﺮداري ﺑﻪ ﻫﺮ روش ﭘﯿﮕﺮد ﻗﺎﻧﻮﻧﯽ دارد‪.‬‬
‫‪09128884969 - 66120554‬‬ ‫ﺗﻬﺮان‪ :‬ﺧﯿﺎﺑﺎن ‪ 16‬آذر ﺷﻤﺎﻟﯽ‪ ،‬ﺳﺎﺧﺘﻤﺎن ﺑﻌﺜﺖ‪ ،‬ﻃﺒﻘﻪ ﺳﻮم‬
‫اﻫﻮاز‪ :‬ﺧﯿﺎﺑﺎن ﻧﺎدري ﺷﺮﻗﯽ‪ ،‬ﻧﺒﺶ ﺧﯿﺎﺑﺎن ﮐﺮﻣﯽ ﺧﺮاط ‪09161185118- 32202802 - 32219202‬‬
DEDICATION
I dedicate this research work to my parents,

grandparents and Ph.D. supervisors for instilling in
me the virtues of strength, wisdom, patience and
perseverance required to accomplish this thesis. I
would not have been able to accomplish this thesis
without their blessings and guidance.
“If you’re lucky enough to still have

grandparents, visit them, cherish them, love them
and celebrate them for as long as you can”.
-Regina Brett-
“No matter how far we come, our parents are

always in us”.
-Brad Meltzer-
“A teacher effects eternity. You can never tell

where his influence stops”.
-Henry Brooks Adams-
CONTENTS
ACKNOWLEDGEMENTS..................................................................... 15
CHAPTER – I: INTRODUCTION ...........................................................19

1.1 THE ORIGIN OF CONTINENTS AND OCEANS............................. 19
1.2 RELIGIOUS SIGNIFICANCE OF THE SEA..................................... 21
1.3 SEA AS A RESERVOIR OF MINERALS.......................................... 24
1.4 SEA AS A FACILITATOR OF TRADE AND TOURISM.................. 25
1.5 PIRACY AT SEA .............................................................................. 27
1.6 RESEARCH HYPOTHESES............................................................. 29
1.7 RESEARCH METHODOLOGY........................................................ 29
1.8 RESEARCH OBJECTIVES............................................................... 30
1.9 REVIEW OF LITERATURE ............................................................. 30
1.10 PLAN OF STUDY ........................................................................... 46
CHAPTER - II: LAW OF SEA: HISTORICAL PERSPECTIVE.......... 49

2.1 GENERAL INTRODUCTION........................................................... 49
2.2 EARLY HISTORY............................................................................ 50
2.3 THE HANSEATIC LEAGUE ............................................................ 54
2.4 IMPOSSIBILITY OF MEDIEVAL INTERNATIONAL SEA LAW... 55
2.5 CLAIMS TO MARITIME SOVEREIGNTY ...................................... 56
2.6 FREEDOM OF THE SEAS................................................................ 58
2.7 CUSTOMARY INTERNATIONAL LAW OF THE SEA................... 61
2.8 THE HAGUE CONFERENCE........................................................... 65
2.9 TRUMAN’S PROCLAMATIONS..................................................... 65
2.10 CODIFICATION OF LAW OF THE SEA ........................................ 66
2.11 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA,
1982 ........................................................................................................ 69
2.12 UNCLOS, 1982, AND THE USA ..................................................... 73
CHAPTER - III: PIRACY AT SEA: HISTORICAL PERSPECTIVE... 75

3.1 GENERAL INTRODUCTION........................................................... 75
3.2 PIRACY IN THE ANCIENT ERA (UP TO 500 AD)........................... 77
3.2.2 Early period ........................................................................78
3.2.3 PIRATE GROUPS AND ORGANISATIONS ............................................ 79
3.2.4 PIRATE VESSELS AND SEAMANSHIP ................................................. 81
3.2.5 PIRACY IN THE ROMAN PERIOD ....................................................... 81
3.3 PIRACY IN THE MEDIEVAL ERA (FROM 500 AD TO 1850 AD) ... 83
3.3.1 Piracy in the Caribbean Sea and Islands .............................. 84
3.3.1.1 Pirates of this era ............................................................................. 85
3.3.1.2 The Richest Pirates........................................................... 88
3.3.1.3 Pirate Code and Democracy ............................................. 89
3.3.1.4 Pirate Judicial System and Punishments ........................... 91
3.3.1.5 Share distribution amongst Pirates....................................93
3.3.2 Piracy on the Indian Coast .................................................. 95
3.3.3 The Pirate Coast of Arabia ................................................ 101
3.3.4 Piracy on the European Coast ........................................... 105
3.3.5 Piracy on the North American Coast ................................. 106
3.3.6 Piracy on the African Coast .............................................. 108
3.3.7 Piracy on the Chinese Coast.............................................. 109
3.3.8 The End of Medieval Piracy.............................................. 110
3.4 PIRACY IN THE MODERN ERA (AFTER 1850 AD).......................112
3.4.1 Piracy in Somalia .............................................................. 112
3.4.2 Piracy in the Gulf of Guinea.............................................. 114
3.4.3 Piracy in the Strait of Malacca .......................................... 114
3.4.4 Pirate Methodology........................................................... 114
3.4.5 Pirate Weaponry and Funding ........................................... 115
3.4.6 Recent downward trend in Piracy...................................... 115
3.4.7 Piracy in Popular Culture .................................................. 116
CHAPTER – IV: LAW OF SEA: INTERNATIONAL SCENARIO ..... 119

4.1 GENERAL INTRODUCTION..........................................................119
4.2 TERRITORIAL SEA ........................................................................121
4.2.1 Breadth of Territorial Sea.................................................. 122
4.2.2 Rights and Duties of Coastal States over Territorial Sea.... 125
4.2.3 Rights and Duties of Other States...................................... 127
4.2.4 Jurisdiction in Relation to Foreign Ships ........................... 128
4.3 CONTIGUOUS ZONE .....................................................................130
4.4 CONTINENTAL SHELF..................................................................130
4.4.1 Definition of Continental Shelf under the Convention of 1958
................................................................................................. 131
4.4.2 Definition of Continental Shelf under the UN Convention on
the Law of the Sea, 1982 ........................................................... 133
4.4.3 Outer Limits of Continental Shelf ..................................... 134
4.4.4 Rights and Duties of Coastal States over their Continental
Shelf ......................................................................................... 136
4.4.5 Rights and Duties of Other States over the Continental Shelf
................................................................................................. 136
4.4.6 Payment for Exploitation of Continental Shelf beyond 200
Nautical Miles .......................................................................... 137
4.5 EXCLUSIVE ECONOMIC ZONE....................................................138
4.5.1 Definition of the Exclusive Economic Zone ...................... 138
4.5.2 Rights and Duties of Coastal States over Exclusive Economic
Zone.......................................................................................... 139
4.5.3 Rights and Duties of Other States over Exclusive Economic
Zone ......................................................................................... 140
4.5.4 Distinction between Continental Shelf and Exclusive Economic
Zone.......................................................................................... 141
4.6 HIGH SEAS .....................................................................................142
4.6.1 Definition of High Seas..................................................... 142
4.6.2 Freedoms of the High Seas................................................ 143
4.6.3 Jurisdiction on the High Seas ............................................ 144
4.6.4 Duties of the Flag State on the High Seas.......................... 145
4.7 WATERS OF THE ARCHIPELAGIC STATES................................147
4.7.1 Drawing of Archipelagic Baselines ................................... 148
4.7.2 Rights of Archipelagic States ............................................ 149
4.7.3 Duties of Archipelagic States ............................................ 150
4.8 LAND LOCKED STATES ...............................................................151
4.9 DEEP SEABED AND OCEAN FLOOR............................................155
4.9.1 International Seabed Area ................................................. 156
4.9.2 International Seabed Authority.......................................... 157
4.9.2.1 The Assembly ............................................................................... 158
4.9.2.2 The Council................................................................................... 159
4.9.2.3 The Secretariat .............................................................................. 160
4.9.2.4 The Enterprise............................................................................... 161
4.9.3 Deep Sea Mining and USA ............................................... 161
4.10 PROTECTION AND PRESERVATION OF ENVIRONMENT..................162
4.11 SETTLEMENT OF DISPUTES ......................................................163
4.11.1 International Tribunal for the Law of the Sea .................. 165
4.11.1.1 Composition and Membership ...................................... 165
4.11.1.2 Access and Jurisdiction................................................................ 166
4.11.1.3 Seabed Disputes Chamber............................................................ 166
4.11.1.4 Special Chambers ........................................................................ 167
4.11.2 Cases Decided by the Tribunal........................................................ 168
4.12 SOUTH CHINA SEA MARITIME DISPUTE .................................169
4.12.1 Factors Involved in the Dispute ....................................... 170
4.12.1.1 Oil and Gas Reserves ................................................................... 170
4.12.1.2 Fish Stocks .................................................................................. 171
4.12.1.3 Strategic Value ............................................................................ 171
4.12.1.4 China’s Historical Rights ............................................................. 172
4.13 EAST CHINA SEA MARITIME DISPUTE ....................................173
4.13.1 Historical Claims of China and Japan.............................. 174
4.13.2 Legal Claims................................................................... 175
4.13.3 Economic and Strategic Value ........................................ 175
4.13.4 Mediation Efforts............................................................ 176
CHAPTER  V: LAW OF SEA: INDIAN SCENARIO ......................... 177

5.2 ORIGIN IN INDIA AND BRIEF HISTORY .....................................178
5.3 MARITIME LAWS IN INDIA..........................................................180
5.3.1 The Admiralty Offences (Colonial) Act, 1849 ................... 180
5.3.2 The Admiralty Jurisdiction (India) Act, 1860 .................... 181
5.3.4 The Colonial Courts of Admiralty Act, 1890 ..................... 183
5.3.5 The Carriage of Goods by Sea Act, 1925........................... 185
5.3.6 The Constitution of India, 1950 ......................................... 185
5.3.7 The Merchant Shipping Act, 1958 ..................................... 188
5.3.8 The Major Port Trusts Act, 1963 ....................................... 190
5.3.9 The Marine Insurance Act, 1963........................................ 191
5.3.10 The Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zones Act, 1976 ............... 193
5.3.11 The Maritime Zones of India (Regulation of Fishing by
Foreign Vessels) Act, 1981........................................................ 196
5.3.12 The Multimodal Transportation of Goods Act, 1993........ 198
5.3.13 The Suppression of Unlawful Acts Against Safety of
Maritime Navigation and Fixed Platforms on Continental Shelf
Act, 2002................................................................................... 198
5.3.14 The Admiralty Bill, 2005................................................. 199
5.3.15 The Piracy Bill, 2012....................................................... 201
5.4 INTERNATIONAL CONVENTIONS AND INDIA .........................202
5.5 ROLE OF JUDICIARY IN INTERPRETING MARITIME
STATUTES .............................................................................. 204
5.6 THE ENRICA LEXIE INCIDENT ....................................................212
5.7 RECOMMENDATIONS OF PARVEEN SINGH COMMITTEE .................213
5.8 RECOMMENDATIONS OF THE 13TH LAW COMMISSION OF
INDIA ...................................................................................................215
5.9 RECOMMENDATIONS OF THE 20TH LAW COMMISSION OF
INDIA ...................................................................................................217
5.10 MARITIME BOUNDARY DISPUTES BETWEEN INDIA AND ITS
NEIGHBOURS......................................................................................218
5.10.1 Sir Creek Dispute with Pakistan ...................................... 219
5.10.2 India - Sri Lanka Maritime Disputes................................ 222
5.10.3 India – Bangladesh Maritime Dispute ............................. 223
5.10.4 India – Myanmar Maritime Dispute ................................ 226
5.11 INDIA’S MARITIME BOUNDARY AGREEMENTS WITH ITS
NEIGHBOURS......................................................................................227
CHAPTER – VI: PIRACY AT SEA (ANTI PIRACY LAW AND

MEASURES): INTERNATIONAL SCENARIO....................................233
6.2 DEFINITION OF PIRACY UNDER INTERNATIONAL LAW ...................234
6.2.1 IMB’s Definition of Piracy ............................................... 235
6.2.2 Piracy By Public Ships...................................................... 236
6.2.3 Piracy: Whether Terrorism or Traditional Crime ............... 237
6.2.4 Place of Committing Piracy .............................................. 238
6.2.5 Object of Piracy ................................................................ 239
6.3 PIRACY UNDER MUNICIPAL LAWS ...........................................240
6.4 INCIDENCE AND MAGNITUDE OF PIRACY ...............................247
6.4.1 Disappearance of MH 370 Passenger Aircraft ................... 250
6.4.2 Pirate Strategy .................................................................. 252
6.4.3 Cost of Maritime Piracy .................................................... 253
6.5 CAUSES OF PIRACY IN SOMALIA ...............................................254
6.5.1 Colonial Effect.................................................................. 254
6.5.2 Civil War and Famine ....................................................... 255
6.5.3 Failed Relief Missions of UN and USA............................. 255
6.5.4 Illegal Fishing and Toxic Waste Dumping ........................ 256
6.6 PIRACY BUSINESS MODEL..........................................................257
6.7 CUSTOMARY INTERNATIONAL LAW ON PIRACY...................258
6.8 INTERNATIONAL LEGAL FRAMEWORK RELATING TO PIRACY
AND VIOLENT CRIMES AT SEA........................................................259
6.8.1 Geneva Convention on The High Seas, 1958 ..................... 260
6.8.2 United Nations Convention on Law of the Sea, 1982......... 262
6.8.3 International Convention Against The Taking of Hostages,
1979 .......................................................................................... 264
6.8.4 Convention For The Suppression of Unlawful Acts Against
The Safety of Maritime Navigation, 1988.................................. 266
6.8.5 Protocol for the Suppression of Unlawful Acts Against the
Safety of Fixed Platforms Located on the Continental Shelf ...... 269
6.8.6 Djibouti Code of Conduct ................................................. 270
6.8.7 IMO Code of Practice For The Investigation of Crimes of
Piracy and Armed Robbery Against Ships, 2009 ....................... 274
6.9 ANTI PIRACY MEASURES ADOPTED BY MERCHANT SHIPS..............276
6.10 ANTI PIRACY AND MARITIME SECURITY MEASURES TAKEN BY
INTERNATIONAL ORGANIZATIONS ...................................................277
6.10.1 UNITED NATIONS SECURITY COUNCIL ..........................................277
6.10.2 Secretary General’s Role................................................. 282
6.10.3 International Maritime Organization ............................... 283
6.10.4 International Maritime Bureau ........................................ 285
6.10.5 United Nations Office on Drugs and Crime ..................... 286
6.10.6 North Atlantic Treaty Organization ................................. 287
6.10.7 European Union .............................................................. 288
6.10.8 The Contact Group on Piracy off The Coast of Somalia .. 289
6.10.9 Combined Task Force 150............................................... 290
6.10.10 Combined Task Force 151 ............................................. 292
6.10.11 Combined Task Force 152 ............................................. 292
6.11 ANTI PIRACY AND MARITIME SECURITY MEASURES TAKEN
BY MAJOR NAVAL POWERS.............................................................293
6.11.1 United States of America ................................................ 293
6.11.2 United Kingdom ............................................................. 295
6.11.3 Russia ............................................................................. 296
6.11.4 China .............................................................................. 297
6.11.5 Japan............................................................................... 298
6.11.6 India ............................................................................... 299
CHAPTER – VII: PIRACY AT SEA (LEGAL ISSUES AND

CHALLENGES): INTERNATIONAL SCENARIO .............................. 301
7.2 CRIMINAL JURISDICTION AT SEA..............................................302
7.3 UNIVERSAL JURISDICTION OVER PIRATES .............................304
7.3.1 Universal Jurisdiction Under Customary International Law
................................................................................................. 305
7.3.2 Universal Jurisdiction Under Modern International Law ... 307
7.3.3 Problems in Exercising Universal Jurisdiction .................. 308
7.4 PROSECUTION OF PIRATES.........................................................310
7.4.1 The Seychelles.................................................................. 311
7.4.3 The United States of America ........................................... 326
7.5 EXTRADITION OF PIRATES VIS A VIS ASYLUM CLAIMS..................330
7.5.3 International Covenant on Civil and Political Rights, 1966 336
7.5.4 European Convention for the Protection of Human Rights and
Fundamental Freedoms, 1950 .................................................... 337
CHAPTER – VIII: PIRACY AT SEA: INDIAN SCENARIO ............... 341

8.2 ANTI PIRACY LAWS IN INDIA .....................................................342
8.2.1 The Colonial Indian Laws ................................................. 342
8.2.2 The Constitution of India, 1950 ......................................... 342
8.2.3 The Navy Act, 1957 .......................................................... 343
8.2.4 The Merchant Shipping Act, 1958 ..................................... 344
8.2.5 The Indian Penal Code, 1860............................................. 345
8.3 ANTI PIRACY AND MARITIME SECURITY MEASURES..................346
8.3.1 India’s Bilateral Agreements to Combat Piracy................. 347
8.3.2 India and The United Nations ........................................... 350
8.3.3 India and Regional Organizations ..................................... 351
8.3.4 Indian Ocean Naval Symposium ....................................... 352
8.3.5 India’s Maritime and Coastal Security Plan....................... 353
8.3.6 Role of Indian Navy in Combating Piracy......................... 357
8.3.7 Role of Indian Coast Guard in Combating Piracy.............. 360
8.4 CHALLENGES IN COASTAL SECURITY .....................................362
8.4.1 Difference in Governmental Priorities............................... 362
8.4.2 Poor Policing .................................................................... 363
8.4.3 Lack of Resources............................................................. 363
8.4.4 Lack of Integration Among Security Agencies .................. 364
8.4.5 Lack of Identification and Tracking System on Fishing Boats
................................................................................................. 364
8.5 CRIMINAL JURISDICTION AT SEA..............................................365
8.6 PROSECUTION OF PIRATES.........................................................366
8.6.1 The MV Alondra Rainbow Case ....................................... 366
8.6.2 Trial of 120 Somali Pirates................................................ 370
8.7 THE ENRICA LEXIE CASE ............................................................371
8.7.1 Legal Issues Raised Before the Kerala High Court ............ 372
8.7.2 Judgement of the Kerala High Court ................................. 374
8.7.3 Legal Issues Raised Before the Supreme Court of India .... 375
8.7.4 Judgement of the Supreme Court of India ......................... 378
8.7.5 Post Judgement Developments.......................................... 380
8.7.6: Order of the ITLOS ......................................................... 382
CHAPTER - IX: CONCLUSION AND SUGGESTIONS ..............385

9.1 CONCLUSION ................................................................................385
9.2 SUGGESTIONS...............................................................................402
BIBLIOGRAPHY....................................................................................409
BOOKS .................................................................................................409
ARTICLES............................................................................................412
CONVENTIONS AND COVENANTS ..................................................415
DICTIONARIES ...................................................................................417
JOURNALS AND MAGAZINES ..........................................................417
NEWSPAPERS .....................................................................................418
REPORTS .............................................................................................419
BILLS AND STATUTES.......................................................................419
WEBLIOGRAPHY................................................................................420
YEARBOOKS.......................................................................................423
ABBREVIATIONS ..................................................................................425
TABLE OF CASES..................................................................................429
ACKNOWLEDGEMENTS
“As we express our gratitude, we must never forget that the highest
appreciation is not to utter words, but to live by them (John Fitzgerald
Kennedy).” The most pleasurable and joyous thing about writing a
Ph.D. thesis is the opportunity it provides to express gratitude to all the
persons who have contributed in diverse ways in order to make it
meaningful, and have been a source of encouragement, inspiration and
enlightenment.
Research work can neither move in a right direction, nor come to
any meaningful conclusion without proper expert guidance. I have been
extremely fortunate to get the patronage of Prof. (Dr.) Vijay Kumar
Bansal, Professor Emeritus, Department of Laws, Panjab University,
Chandigarh, as well as former Dean University Instructions, Panjab
University, Chandigarh, and also former Chairman, Department of
Laws, Panjab University, Chandigarh, and at present Chairman,
Lincoln College of Law, Sirhind, Punjab; and Dr. Jyoti Rattan, Senior
Assistant Professor, Department of Laws, Panjab University,
Chandigarh. I take this opportunity to express my deep sense of
gratitude, reverence and respect for my esteemed supervisors. It has
been a matter of immense pleasure, as well as a great privilege for me
to be enlightened by their scholarly and erudite guidance. It has been a
boon for me to be their student. Apart from lessons in Law, I have also
learnt many lessons of humility and wisdom from both of them. Their
influence and memories shall remain with me till the last breath of my
life.
I would also like to express my gratitude to Prof. (Dr.) Vijay Nagpal,
Professor and Chairman, Department of Laws, Panjab University,
Chandigarh, for his encouragement during the period of this research
work. This is an opportunity for me to also express my gratitude,
reverence and respect to Prof. (Dr.) Ranbir Kaur and Prof. (Dr.)
Nishtha Jaswal, Professors and former Chairpersons, Department of
Laws, Panjab University, Chandigarh, for their blessings,
encouragement and support during the period of this research work. I
extend my acknowledgement to Prof. (Dr.) Devinder Singh, Professor,
Department of Laws, Panjab University, Chandigarh, for his
encouragement, support and blessings during the period of LL.M. as
well as during the period of Ph.D. research work. It was an immense
LAW OF SEA AND PIRACY: NATIONAL AND INTERNATIONAL SCENARIO
joy to attend to his lectures on Constitutional Law and Law and Social
Transformation during the course of my LL.M. degree. The lectures
delivered by Prof. (Dr.) Vijay Kumar Bansal, Prof. (Dr.) Devinder
Singh and Prof. (Dr.) Basant Kumar Sharma on various subjects have
left an indelible impact on my life and shall forever remain etched in
my memory.
I would further like to express my gratitude towards the Library staff
of the Department of Laws Library, Panjab University, Chandigarh;
A.C. Joshi Library, Panjab University, Chandigarh; Indian Law
Institute Library, New Delhi; Indian Society of International Law
Library, New Delhi; American Centre Library, New Delhi; Supreme
Court Library, New Delhi; and Ministry of External Affairs Library,
New Delhi, for making available to me the relevant and latest study
material required for this research work. All these Libraries are a
treasure house of knowledge and the Library Staff of every place is
very polite, cooperative and cordial.
I express my indebtedness and deepest sense of reverence, respect
and gratitude to my parents Mr. Ajit Chandar, Assistant General
Manager, Indian Overseas Bank, Chandigarh, and Mrs. Hargurmeet
Kaur, Assistant General Manager, Oriental Bank of Commerce,
Gurgaon, Haryana, for their consistent and never ending blessings,
love, support, inspiration and encouragement before as well as during
the period of this research work. They have been my pillars of strength
throughout the highs and lows in the journey of life. They are the
reason for why I am and for who I am. This research work could never
have been completed or even anticipated without their blessings, love,
support, inspiration and encouragement. The most beautiful thing in
this world is to see your parents smiling and knowing that you are the
reason behind that smile. My younger sister Harpriya, Credit Manager,
HDFC Bank, New Delhi, has also been a source of inspiration in the
past few years.
I am extremely beholden and grateful to my best friends, Jagdeep
Pal Singh Randhawa, Puneet Mehta and Sushant Kohli, for their kind
words of encouragement, inspiration and moral support, before as well
as during the period of this research work. For the past ten years, they
have been a source of immeasurable joy and happiness to me and they
have added many pleasant memories to my life. Although by
temperament I am a loner who likes to enjoy the moments of solitude,
but I always look forward to them to share my joys and sorrows, which
are a part and parcel of every human being’s journey of life. They have
16
firmly stood by me in good as well as bad times. Their friendship is one

of the most precious blessings of the Almighty God. Since finishing
graduation five years ago, we’ve been living in different cities which
are several miles apart. However, we stay in touch and are just a phone
call away from each other. Someone has aptly remarked that best
friends are like stars. You can’t always see them, but you know that
they are always there for you.
I must extend my heartfelt gratitude to my friends, Anil Ghanghas,
Bikram Singh Goraya, Esmaeil Shahsavandi, Garish Kumar, Geetinder
Kaur Gill, Harsimran Kaur Bedi, Juhi Goel, Kuldeep Singh, Kuljit
Singh, Kushal Singla, Meharpreet Singh, Mudasir Ahmed Bhat,
Navdeep Singh, Pinky Bangarh, Punita Bashamboo, Rasvir Kaur, Rita
Ghial, Robin Kumar, Rohit Singla, Satyender Yadav, Sohan Singh
Antil, Sukhnandan Singh Gumtala, Sumit Walia, Tarandeep Singh,
Tarun Kumar, Vikram Deep Singh, Vishal Tiwari, Yaser Hamidi and
Zora Singh Hundal, for helping, inspiring and encouraging me in
various ways over the past five years. I had the privilege of meeting
and knowing all of them in the course of earning LL.M. and Ph.D. from
Panjab University, Chandigarh. Apart from being my good friends,
some of them are excellent human beings as well. World is a beautiful
place because of people like them. Although I have lost touch with some
of them over the past few years and with the passage of time, I may lose
contact with many more, but I can never forget the sweet memories
which they’ve added to my life. I shall cherish those memories for a
lifetime. What makes friends unique is the way each one remembers the
others after they fall apart. They miss the laughs, the talks and the
times they were together. Life changes, but memories don’t. Somebody
has quite philosophically opined that separation is a wound no
medicine can heal, but memories are treasures no thief can steal.
Last but not the least, I am also grateful to the non teaching staff of
the Department of Laws, Panjab University, Chandigarh, for their kind
words and ever helpful approach towards Ph.D. research scholars. Ms.
Neelu Soni (Stenographer) deserves a special note of appreciation for
her patience, humility and motherly approach in dealing with me and
other Ph.D. research scholars and keeping us abreast with the
departmental six monthly progress reports, as well as various seminars
and conferences scheduled for the future. Mr. Chander (Peon), Mr.
Davinder (Peon), Mr Hans Raj (Superintendent), Mr. Harbans Singh
(Security Guard), Mr. Jodhu Ram (Peon), Mr. Kesar Singh (Former
Superintendent), Mr. Munish Sharma (Clerk), Mrs. Neelam Kumari
17
(Assistant Registrar) Mrs. Nidhi Malhotra (Computer Lab Attendant),

Mr. Pardeep Kumar (Senior Assistant), Mr. Raj Kumar Bhardwaj
(Senior Assistant), Mr. Subhash Chhibber (Former Superintendent) and
Mrs. Veenu Bhardwaj (Clerk) also deserve appreciation for the help,
support, courtesy and cooperation extended by them to me and other
Ph.D. research scholars. It has been a privilege for me to know all of
them. Someone has aptly quoted that as we grow in years, the past
becomes a bouquet of memories tied with emotional threads.
Above all, I am thankful to the Almighty God for giving me the
strength, patience, perseverance and wisdom to anticipate and
accomplish this research work. John Knox has rightly said that a man
with God is always in the majority. I feel that one should always
believe in God because there are still some questions which Google
and Wikipedia cannot answer.
Date
Signature
Here I sign my name in ink,
Though I wished to have signed in Gold,
But ink is all a Pen can hold.
18
CHAPTER – I:
INTRODUCTION
“I really don't know why it is that all of us are so committed to the
sea. I think it's because we all came from the sea. It is an interesting
biological fact that all of us have in our veins the exact same
percentage of salt in our blood that exists in the ocean; and therefore,
we have salt in our blood, in our sweat and in our tears. We are tied
to the ocean, and when we go back to the sea, whether it is to sail or
to watch it, we are going back from whence we came”.
John Fitzgerald Kennedy 1
1.1 THE ORIGIN OF CONTINENTS AND OCEANS

The surface of the Earth has undergone radical changes over the past
250 million years. Many geologists explained these changes as the
consequence of the cooling and contraction of the Earth. However, this
explanation seemed quite unsatisfactory to a German scientist, named
Alfred Wegener (1880 – 1930). In 1915, he published a book titled “The
Origin of Continents and Oceans”, in which he advanced a new theory,
i.e. “The Theory of Continental Drift”. This theory claimed that the
changes in the appearance of the Earth took place due to the shifting of
continents. According to this theory, about 250 million years ago, there
was only one continent and one ocean. Alfred Wegener named this
continent as “Pangaea” (which means all lands) and the ocean as
“Panthalassa” (which means the universal ocean). Pangaea was a
super continent which contained all of our present continents.2
1 The 35th President of the United States of America. Excerpt from the speech
delivered at Newport, Rhode Island, USA, on 14th September 1962, at the
inaugural dinner for the teams of Australia and the USA, participating in the
America’s Cup (the oldest international sailing trophy). Susan Ratcliffe, Oxford
Dictionary of Quotations and Proverbs 245-246 (Oxford University Press, New
York, 2006). Also available at:
http://www.youtube.com/results?search_query=john+f+kennedy+newport+rhode
+is land+September+14%2C+1962 (Visited on March 31, 2014).
2 Mahendra Jain (ed.), Pratiyogita Darpan General Studies: Geography (India &
World) 56-57 (Pratiyogita Darpan Printing Unit, Agra, 2012).
Similarly, Panthalassa was a gigantic Ocean which contained all of our

present oceans. Pangaea covered an area of about 150 million square
kilometers. It spread equally between the northern and the southern
hemispheres. It consisted of North America (with Greenland attached)
and Eurasia (minus India and Arabia) in the extreme north. Below them
were South America and Africa (with Arabia attached), and further
down were Antarctica, Australia and India. Between North America
and Eurasia, the rudimentary Arctic Ocean formed a big gulf in the
north, while between Eurasia and Africa lay a long large bay, i.e. the
Tethys Sea (the ancestor of the modern Mediterranean Sea). The break
up of Pangaea which has resulted in the formation of present day
continents and oceans began about 200 million years ago by two
extensive rifts in the north and the south of this super continent. The
northern rift cut Pangaea from east to west, along a line slightly north
of the equator, creating “Laurasia” in the north and “Gondwana” in
the south. Laurasia comprised of North America, Greenland and
Eurasia (without India and Arabia), while Gondwana comprised of
Africa (with Arabia attached), South America, Australia, Antarctica
and India. This rift opened up the Arctic Ocean and the Atlantic Ocean.
The southern rift cut up Gondwana into South America and Africa
(with Arabia attached), and Antarctica, India and Australia. This rift
opened up the Indian Ocean. The remaining part of the Panthalassa
later came to be known as the Pacific Ocean.3
The word ocean is derived from the Greek word “Okeanos” (which
means a great stream encircling the Earth). An ocean is a body of saline
water that composes a large part of the Earth’s hydrosphere. It refers to
one or all of the major divisions of the planet’s oceans. They are the
Pacific Ocean, the Atlantic Ocean, the Indian Ocean, the Antarctic
Ocean and the Arctic Ocean (in descending order of area). The word
sea is often used interchangeably with the word ocean. A sea is a body
of saline water partly or fully enclosed by land, whereas an ocean is
described as a very large expanse of sea. It is important to mention here
that none of the five oceans is fully enclosed by land. Earth is the only
planet in the solar system to have an ocean. India is the only country in
the world on whose name an ocean is named.4 Oceans cover
approximately 71.4% of the Earth’s surface and contain about 97% of
the Earth’s water. Oceans are the habitat of 2,30,000 known marine
3 Ibid.
4 Available at: http://wikipedia.org/ocean (Visited on December 6, 2013).
20
species. However, much of the oceans’ depths remain unexplored till

date and it is estimated that over two million marine species exist. The
exact time of origin of the Earth’s oceans is still unknown. However,
oceans are believed to have been formed in the Hadean period and may
have provided the impetus for the emergence of life on Earth.
According to some scientists, “Cyanobacteria” or “Blue Green Algae”
were the first living organisms. Cyanobacteria can be found in almost
every terrestrial and aquatic habitat, i.e. oceans, fresh water, damp soil,
temporarily moistened rocks in deserts, bare rocks and soil, and even
Antarctic rocks.5
1.2 RELIGIOUS SIGNIFICANCE OF THE SEA

The importance of oceans, seas and rivers in general and water in
particular has been recognized in every religion. According to Rig
Veda, the universe as well as the human body consists of five basic
elements, i.e. Earth, Water, Air, Fire and Ether (Space). These five
elements provide the basis for life in everything. Out of them, Water
and Air are the most important, as these are the basic elements which
sustain life itself. Atharva Veda highlights the significance of the purity
and quality of water. It mentions that pure water cures many ailments
and acts as the preventer of many diseases.6
In Hinduism, Samudra Manthan or Ksheera Sagara
Manthanam (Churning of the Ocean of Milk) is one of the most famous
events in the Puranas. The story appears in the Bhagavata Purana,
the Mahabharata and the Vishnu Purana. Lord Indra, the King
of Devtas (Gods), while riding on an Elephant, came across a sage
named Durvasa who offered him a special garland. Lord Indra accepted
the garland, placing it on the trunk of his elephant. The elephant,
irritated by the smell of the garland, threw the garland on the ground
and trampled on it.7 This enraged the sage as the garland was a
dwelling of Sri (fortune) and was to be treated as prasada. Durvasa
Muni cursed Lord Indra and all Devtas to be bereft of all strength,
energy, and fortune. In battles that followed this incident, Devtas were
defeated and Asuras (demons) led by King Bali gained control of the
Universe. Devtas sought help from Lord Vishnu, who advised them to
5 Ibid.
6 P.S. Jaswal and Nishtha Jaswal, Environmental Law 4-7 (Allahabad Law Agency,
Faridabad, 2008).
7 Available at: http://www.rudraksha-ratna.com/Samudra-manthan.php (Visited on
December 10, 2013).
21
Devtas sought help from Lord Vishnu, who advised them to treat
Asuras in a diplomatic manner. Devtas formed an alliance with Asuras
to jointly churn the ocean for the nectar of immortality (Amrit) and to
share it among them. However, Lord Vishnu told Devtas that he would
make sure that they alone obtain the nectar. The churning of the
Milky ocean was an elaborate process. Mount Mandarachala, also
known as Mount Meru, was used as the churning rod, and Vasuki, the
King of serpents, became the churning rope. The demons (Asuras)
demanded to hold the head of the snake, while the Devtas, taking
advice from Lord Vishnu, agreed to hold its tail. As a result, the
demons were poisoned by the fumes emitted by Vasuki. Despite this,
the gods and demons pulled back and forth on the snake's body
alternately, causing the mountain to rotate, which in turn churned the
ocean. However, once the mountain was placed on the ocean, it began
to sink. Lord Vishnu in his second incarnation, in the form of a
turtle named Kurma, came to their rescue and supported the mountain
on his back.8
The Samudra Manthan process released a number of things from the
Milky Ocean. One product was the lethal poison known as Halahala.
This terrified the Gods and demons because the poison was so powerful
that it could contaminate the Milky Ocean and destroy all creation. On
the advice of Lord Vishnu, the gods approached the compassionate
Lord Shiva for help and protection. Lord Shiva drank the poison in
order to protect the Universe. As a result, the color of Lord Shiva's neck
turned blue. For this reason, Lord Shiva is also called Neelakantha (the
blue throated one). When the heat from the poison finally became
unbearable for Lord Shiva, he used his trishul to dig for water, thus
forming the Gosaikunda lake.9
All kinds of herbs were cast into the ocean and fourteen Ratnas
(gems or treasures) were produced from the ocean and were divided
between Devtas and Asuras. Though usually the Ratnas are enumerated
as fourteen, the list in various scriptures ranges from nine to fourteen
Ratnas. According to the quality of the treasures produced, they were
accepted by Lord Vishnu, the Devtas, and the Asuras.10
There were three types of Goddesses which emerged from the
ocean:
8 Ibid.
9 Ibid.
10 Ibid.
22
I. Lakshmi, the Goddess of Fortune and Wealth, who accepted Lord

Vishnu as her eternal consort.
II. Apsaras, or various divine nymphs like Rambha, Meneka,
Punjikasthala, Urvashi, Thilothamai, etc, who chose the Devtas as their
companions.
III. Varuni or Sura, Goddess and creator of alcohol, taken somewhat
reluctantly (she appeared dishevelled and argumentative) by the
demons.
Likewise, three types of supernatural animals appeared;
I. Kamadhenu or Surabhi, the wish granting divine cow, taken by
Lord Vishnu and given to sages so that ghee from her milk could be
used in sacrifices.
II. Airavata, and several other elephants, taken by Indra, the leader of
the Devtas.
III. Uchhaishravas, the divine seven headed horse, given to the demons.
There were three valuables which emerged from the ocean:
I. Kaustubha, the most valuable jewel in the world, worn by Lord
Vishnu.
II. Parijat, the divine flowering tree with blossoms that never fade or
wilt, taken to Indraloka by the Devtas.
11
III. A powerful bow, symbolic of the Demons’ belligerence.
Finally, Dhanvantari, the heavenly physician, emerged with a pot
containing Amrita, the heavenly nectar of immortality. Fierce fighting
ensued between Devtas and Asuras for the nectar.12 To protect the
nectar from Asuras, the divine Garuda (vehicle of Lord Vishnu) took
the pot and flew away from the battle scene. While Garuda was in his
flight over planet Earth, it is believed that four drops of nectar fell at
four places, i.e. Prayag (Allahabad), Haridwar, Ujjain and Nasik. This
legend is the basis for the belief that these places acquired a certain
mystical power and spirituality. A Kumbh Mela is celebrated at the
four places every twelve years for this reason. People believe that after
bathing there during the Kumbha mela, one can attain the primeval
heaven and moksha. However, Rahu, one of the Asuras, eventually got
hold of the nectar and started celebrating. Frightened, the
Devtas appealed to Lord Vishnu, who then took the form of Mohini. As
a beautiful and enchanting damsel, Mohini distracted the Asuras, took
the Amrit, and distributed it among the Devtas, who drank it.
11 Ibid.
12 Ibid.
23
Asura Rahu Ketu disguised himself as a Devta and drank some nectar.
Due to their luminous nature, the Sun God Surya and the Moon
God Chandra noticed the switching of sides and informed Mohini. But
before the nectar could pass his throat, Mohini cut off his head with her
divine discus, the Sudarshana Chakra. But as the nectar had gone down
his throat he did not die. From that day, his head was called Rahu and
body was called Ketu. Later Rahu and Ketu became planets. The story
ends with the rejuvenated Devtas defeating the Asuras.13
Sikhism also emphasizes that human beings are composed of five
basic elements of nature, i.e. Earth, Water, Air, Fire and Ether (Space).
In his composition “Japji Sahib”, Guru Nanak Dev ji has remarked that
“Air is the guru, Water is the father, and the vast Earth is the great
mother of all”. Sikhs and Christians are baptized with water, as a sign
of purification.14 Islam ascribes the most sacred qualities to water as a
life giving, sustaining and purifying resource. The Holy Qur’an
declares that water is the substance from which God created man and
all other living beings. It further declares that water is the primary
element which existed even before the existence of heaven and earth.
Serving water to a thirsty person is considered to be a virtuous deed in
Islam.15
1.3 SEA AS A RESERVOIR OF MINERALS

The Sea is a vast reservoir of minerals, raw materials and natural
resources. The oceans contain 90% of the world’s oil and gas reserves
and 84% of world’s minerals and rare metal reserves. The wealth of the
sea is estimated at 300 million U.S. Dollars. However, the actual value
could be several times more than this amount as only 5% of the ocean
as a whole has been explored till date. As early as in 1967, Mr. Arvid
Pardo, the representative of Malta, presented a survey report on the
mineral resources of the seabed before the General Assembly of the
United Nations. His survey revealed that one of the most valuable
resources on the bottom of the oceans are the black coloured potato
13 Ibid.
14 Supra note 6.
15 Available at: http://english.islammessage.com/articledetails.aspx?articleId=305
(Visited on December 10, 2013).
24
shaped mineral rich Manganese nodules.16 These nodules contain the

following minerals-
I. 358 billion tons of Manganese (equivalent to reserves for 4,00,000
years, as compared to land reserves for only 100 years).17
II. 43 billion tons of Aluminium (equivalent to reserves for 20,000
III. 14.70 billion tons of Nickel (equivalent to reserves for 1,50,000
IV. 7.9 billion tons of Copper (equivalent to reserves for 600 years, as
compared to land reserves for only 40 years).20
V. 5.20 billion tons of Cobalt (equivalent to reserves for 2,00,000 years,
as compared to land reserves for only 40 years).21
VI. 1 billion ton of Zirconium (equivalent to reserves for 1,00,000 years,
as compared to land reserves for only 100 years). 22
VII. 0.75 billion ton of Molybdenum (equivalent to reserves for 30,000
years, as compared to land reserves for only 500 years.23
He further stated that in addition to the above, the Pacific Ocean
nodules contain 207 billion tons of Iron, 25 billion tons of Magnesium,
10 billion tons of Titanium, 8 billion tons of Vanadium and 1.30 billion
tons of Lead. He also suggested that the seabed and the ocean floor
should be treated as the common heritage of mankind.24
1.4 SEA AS A FACILITATOR OF TRADE AND TOURISM

It is important to mention here that despite the development of
aircrafts, trains, automobiles, etc, shipping is still the major mode of
transporting goods internationally, and many cities rely on their ports as
the major source of revenue. Around 90% of the world’s goods are
transported by sea. Shipping is also the most environment friendly
16 H.O. Agarwal, International Law and Human Rights 129 (Central Law
Publications, Allahabad, 2011).
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid.
22 Ibid.
23 Ibid. The world rate of consumption of these minerals was fixed at the year 1950.
24 Ibid.
25
mode of transportation, taking into consideration per ton of goods

transported. Depending upon the vessel, it emits 5 to 30 times less
Carbon Dioxide than road transport and up to 100 times less than air
transport. However, this basic fact is largely eclipsed by maritime
disasters, which although very few in number, get considerable media
attention. Oceans play an important role in weather and climate as well.
They absorb 80% of the heat and 20% of the carbon emissions
produced by human activity.25
Coastal areas are transitional areas between the land and the sea
characterized by very high biodiversity and include some of the richest
and most fragile ecosystems on Earth, like mangroves and coral reefs.
At the same time, coasts are under very high population pressure due to
rapid urbanization processes. More than half of today’s world
population lives in coastal areas (within 60 km from the sea) and this
number is on the rise.26 Additionally, coastal areas are those which are
most visited by tourists and in many coastal areas, tourism is the most
important economic activity. In the Mediterranean region for example,
tourism is the first economic activity for islands like Cyprus, Malta, and
Sicily. Studies carried out by the World Tourism Organization estimate
that international tourist arrivals to the Mediterranean coast will amount
to 270 million per year in 2010 and to 346 million per year in 2020 (in
the year 2000, around 200 million foreign visitors per year). The main
positive economic impacts of coastal tourism are: contribution to
government revenue, foreign exchange earnings, generation of
employment and business opportunities.27
Government revenues from the tourism sector can be categorized as
direct and indirect contributions. Direct contributions are generated by
income taxes from tourism and employment due to tourism, tourism
businesses and by direct charges on tourists such as ecotax. Indirect
contributions derive from taxes and duties on goods and services
supplied to the tourists, for example, taxes on tickets (or entry passes to
any protected area), souvenirs, alcohol, restaurants, hotels, services of
tour operators. Tourism expenditures, the export and import of related
25 Available at: http://www.cluster-maritime.fr/article.php?lang=uk&id=2 (Visited on

December 6, 2013).
26 Available at:
http://www.vliz.be/wiki/Impact_of_tourism_in_coastal_areas:_Need_of_sustaina
ble_ tourism_strategy (Visited on December 10, 2013).
27 Ibid.
26
goods and services generate a lot of income to the host economy.

Tourism is the main source of foreign exchange earnings for at least
38 % countries of the world. Tourism can be a significant or even an
essential part of the local economy. Part of the tourism income comes
from informal employment, such as street vendors and informal guides.
The positive side of informal or unreported employment is that the
money is returned to the local economy and has a great multiplier effect
as it is spent over and over again. Tourism can contribute directly to the
conservation of sensitive areas and habitats. Revenue from entrance
fees and similar sources can be allocated to pay for the protection and
management of environmentally sensitive areas.28
1.5 PIRACY AT SEA

The word “piracy” has been derived from the ancient Greek word
“peiraomai”, which means attempt, i.e. an attempt to rob for personal
gain. With the passage of time, this word morphed into “peirates”,
which means “brigand”, and from that to the Latin word “pirata”,
from which we got the modern English word “pirate”. The word is of
comparatively late date in Greek language and is not found before the
year 140 BC. Before then, the various cultural labels like “Nine Bows”
and “Sea Peoples” were applied to such persons by their victims and
enemies.29 Piracy is typically defined as “an act of robbery or criminal
violence at sea”. However, it also includes acts of violence committed
on land, in the air, on a shore or in other major bodies of water (only if
the place where it is committed is outside the jurisdiction of any state).
It does not normally include crimes committed against persons
travelling on the same vessel as the perpetrator (for example, one
passenger robbing others on the same vessel). Those who engage in
acts of piracy are called pirates. Pirates are sea robbers who prey on
other ships and rob them of their goods and sometimes capture the ship
and its crew and hold them for ransom.30 In the modern era, seaborne
piracy against transport vessels remains a significant issue with
estimated losses of 14 to 16 billion US Dollars per year. Piracy is
rampant in the waters between the Red Sea and the Indian Ocean, off
the Somali coast and also in the straits of Malacca and Singapore,
28 Ibid.
29 Henry A. Ormerod, Piracy in the Ancient World 59 (The John Hopkins University
Press, London, 1997).
30 Available at: http://wikipedia.org/Piracy (Visited on December 6, 2013).
27
which are used by over 50,000 commercial ships every year. The
emergence of piracy off the coast of Somalia in the decade of 2000-
2010 resulted in a multinational effort led by the United States of
America to patrol the waters near the Horn of Africa. Modern pirates
have been successful because almost 90% of the international trade and
commerce takes place via shipping. Pirates often operate in the waters
of developing or struggling countries with small Navies and large trade
routes. Pirates sometimes evade capture by sailing into waters
controlled by their pursuer’s enemy. Modern pirates are sometimes
linked with organized crime syndicates, but often are parts of small
individual groups.31 Rather than cargo, they have targeted the personal
belongings of the crew and the contents of the ship’s safe, which
potentially contains large amount of cash needed for payroll and port
fee. In some cases, the pirates force the crew off the ship and then sail it
to a port to be repainted and given a new identity through false papers.32
Modern pirates use a great deal of technology and highly
sophisticated weapons, such as Satellite Phones, Global Positioning
System, SONAR System, Speedboats, AK 47 Assault Rifles, Shotguns,
Pistols, Grenades, Mounted Machine Guns, Rocket Propelled Grenades
and Grenade Launchers.33 Under the United Nations Convention on the
Law of the Sea (UNCLOS), 1982, all states are under a duty to co
operate to the fullest possible extent in the suppression of piracy on the
high seas, or in any other place outside the jurisdiction of any state.34
This Convention states that piracy consists of the following acts:
I. Any illegal acts of violence or detention, or any act of depredation,
committed for private ends by the crew or the passengers of a private
ship or a private aircraft, and directed:
a) on the high seas, against another ship or aircraft, or against
persons or property on board such ship or aircraft; or
b) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any state;
31 Available at: http://wikipedia.org/PiracyintheModernAge (Visited on December

11, 2013).
32 Ibid.
33 Ibid.
34 Article 100 of the UNCLOS, 1982. Available at:
http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
28
II. Any act of voluntary participation in the operation of a ship or of an

aircraft with knowledge of facts making it a pirate ship or aircraft;
III. Any acts of inciting or intentionally facilitating an act described
above.35
Thus, accessory conduct is included within the scope of the
definition. Committing of actual robbery is not essential to constitute
piracy.36
1.6 RESEARCH HYPOTHESES

This research work shall be based on the following hypotheses-
I. The United Nations Convention on the Law of the Sea, 1982,
favours the coastal states and the archipelagic states. Its provisions are
against the interests of the land locked states.
II. The developed states cannot make optimum use of their technology
to explore the deep sea and the ocean floor beyond their Exclusive
Economic Zone because of certain restrictive provisions of the United
Nations Convention on the Law of the Sea, 1982.
III. The international community is facing several problems in bringing
pirates to justice. The concept of universal jurisdiction applies to the
crime of piracy. However, the prosecutors have a hard time in
assembling witnesses and finding translators. Most of the countries are
reluctant to imprison pirates because they would be saddled with them
upon their release.
IV. The state of the Indian maritime and admiralty laws is deplorable at
present. Even the Piracy Bill, 2012, is not comprehensive and leaves
many important issues untouched.
1.7 RESEARCH METHODOLOGY

For the purpose of this research work, the doctrinal method of study
will be followed. The doctrinaire study will be in the form of secondary
data/material collected from various sources like books, dictionaries,
encyclopedias, journals, yearbooks, law reviews, newspapers, websites,
reports of the Law Commission of India, UN conventions, protocols,
bilateral and multilateral treaties and judicial pronouncements of the
International Tribunal for the Law of the Sea, International Court of
Justice, Permanent Court of International Justice, Foreign Courts,
Supreme Court of India and various Indian High Courts.
35 Article 101 of the UNCLOS, 1982. Ibid.

36 See Re Piracy Jure Gentium (1934) AC 586.
29
1.8 RESEARCH OBJECTIVES

The author wishes to pursue research on this topic with the
following objectives-
I. To study the problem of piracy from ancient to modern times.
II. To study and critically analyze the provisions of the four Geneva
Conventions on the Law of the Sea of 1958.
III. To study and critically analyze the provisions of the United Nations
Convention on the Law of the Sea, 1982.
IV. To study and critically analyze various other international
Conventions dealing with maritime security.
V. To study and critically analyze the various admiralty and maritime
laws in India.
VI. To study the problems faced by India regarding exploration of the
Sea for various purposes in the face of jurisdictional problems and
hostile attitude of neighbours.
1.9 REVIEW OF LITERATURE

Most of the literature on law of the sea and piracy is available in the
form of books, articles, conventions, protocols, reports, journals,
judgements, newspapers and websites. Analyzing the theme of study,
the existing secondary sources are broadly classified into three
categories. In the first category of secondary sources, various books
dealing with international law, law of the sea and the problem of piracy
have been reviewed.
L. Oppenheim, in his book titled International Law, explains various
aspects of law of the sea in considerable detail. In the fifth chapter
titled State Territory, he defines various parts of State Territory
including land, internal waters, territorial sea, archipelagic waters and
airspace. He also deals with various important legal issues like
jurisdiction within the territorial sea, jurisdiction in ports and harbours,
right of innocent passage of ships, etc.37 In the sixth chapter titled High
Seas, he explains the concept of high seas under international law and
discusses various important provisions of the Geneva Convention on
the High Seas, 1958, and the United Nations Convention on Law of the
Sea, 1982. He also discusses various claims of sovereignty made over
the high seas by various countries over the past 500 years. Thereafter he
proceeds to discuss the problem of piracy at sea and elucidates various
37 Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law: Volume
I (Peace) (Pearson Education Ltd., New Delhi, 2005).
30
provisions of international law which deal with this problem. He also

gives an overview of the law relating to continental shelf, exclusive
economic zone, deep sea mining and marine scientific research. The
decisions of various international courts dealing with maritime law, like
the Permanent Court of International Justice, the Privy Council, the
International Court of Justice and the International Tribunal for Law of
the Sea have also been discussed briefly.38
J.G. Starke, in his book titled International Law, has attempted to
provide an overview of law of the sea. In the ninth chapter titled The
Law of the Sea and Maritime Highways, he deals briefly with various
aspects of law of the sea. He starts with a brief history of law of the sea
and then proceeds to discuss various developments which led to the
enactment of the United Nations Convention on Law of the Sea, 1982.
He also discusses various achievements of this Convention and
comments upon its salient provisions.39
Malcolm Nathan Shaw, in his book titled International Law, has
discussed threadbare various legal issues arising under law of the sea.
He also comments upon the important provisions of the United Nations
Convention on Law of the Sea, 1982. In the eleventh chapter titled The
Law of the Sea, he starts with a brief introduction of the important
functions of the seas. Then he proceeds to discuss the importance of the
four Geneva Conventions on Law of the Sea, 1958, and the United
Nations Convention on Law of the Sea, 1982. Thereafter, he briefly
describes various maritime zones under the Conventions of 1958 and
1982, i.e., territorial sea, international straits, exclusive economic zone,
high seas and continental shelf.40 He further deals with the principle of
maritime delimitation under international law by discussing various
important decisions of the International Court of Justice. He also
comments upon various provisions of the 1982 Convention dealing with
high seas, deep sea mining and settlement of disputes.41
David Harris, in his book titled Cases and Materials on
International Law, has briefly discussed the salient provisions of the
United Nations Convention on Law of the Sea, 1982. In the seventh
chapter titled The Law of the Sea, he deals concisely with various
38 Ibid.
39 J.G. Starke, International Law (Oxford University Press, New Delhi, 2011).
40 Malcolm Nathan Shaw, International Law (Cambridge University Press, New
Delhi, 2008).
41 Ibid.
31
aspects of law of the sea. He begins with an introduction of the four

Geneva Conventions on Law of the Sea, 1958, and the United Nations
Convention on Law of the Sea, 1982. Then he proceeds to discuss
threadbare the important provisions of the 1982 Convention dealing
with territorial sea, high seas, exclusive economic zone, continental
shelf, maritime boundaries, deep sea bed mining and settlement of
disputes. He has also briefly discussed various decisions of the
Permanent Court of International Justice, the Privy Council, the
International Court of Justice and the International Tribunal for Law of
the Sea dealing with various aspects of maritime law.42
Henry A. Ormerod, in his book titled Piracy in the Ancient World,
has discussed the origin of piracy and its prevalence in the
Mediterranean Sea in the ancient era. The book is divided into seven
chapters. In the first chapter titled Depredations Committed on the
Seas, the author deals with the prevalence of piracy in the
Mediterranean Sea since times immemorial. He observes that from the
time when men first went down to the sea in ships, piracy and robbery
have been regarded as one of the means of livelihood offered by sea. In
the second chapter titled Piracy, Privateering and Reprisals, the author
proceeds to discuss the meaning and origin of the word pirate. He then
distinguishes piracy from other forms of violence at sea, i.e.
privateering and reprisals.43 The author mentions that piracy was in
existence even during the times of the Roman Emperor Julius Caesar,
who was once himself kidnapped by the Mediterranean pirates.44
Philip Gosse, in his book titled The History of Piracy, has
comprehensively discussed the history of piracy from ancient to
modern times in various geographical areas of the world. The book is
divided into four parts comprising of seventeen chapters in total. The
first part deals with the Barbary Corsairs of Africa, who used to commit
piracy in the Mediterranean Sea in the ancient and medieval era. The
second part deals with the Pirates of the North, who used to commit
piracy on the English coasts and seas. The third part deals with the
Pirates of the West, who used to commit piracy in the Caribbean Sea
and on the American coasts. The fourth part deals with the Pirates of
42 David Harris, Cases and Materials on International Law (Thomson Reuters Legal
Ltd., New Delhi, 2010).
43 Henry A. Ormerod, Piracy in the Ancient World (The John Hopkins University
44 Ibid.
32
the East, who used to commit piracy in the Arabian Sea, Malay
Archipelago, Indian coasts, coasts of west Africa, and the coasts of
China and Japan.45
Frank Sherry, in his book titled Raiders and Rebels: A History of the
Golden Age of Piracy, has comprehensively discussed the life and the
times of the highly romanticized pirates of the medieval era. This book
is divided into twenty chapters. The author highlights the achievements
of some of the most famous and notorious pirates of the Golden Age of
Piracy, including Henry Morgan, Edward Teach, Blackbeard, Captain
Kidd and Henry Avery. In the seventh chapter titled On the Account: A
Pirate’s Life, the author discusses in detail the life of a medieval era
pirate. He describes the pirates as freedom loving and passionately
democratic. To ensure democracy onboard their ship, all pirate crews
subscribed to specific rules of behavior, which they embodied in the
ship’s articles. This compilation of rules was basically a Constitution
which declared the rights, duties and powers of various crew members.
In short, this book is an attempt to give an account of the main events
of the enormous eruption of piracy in the later sixteenth and the early
seventeenth century, and to portray the immortal personalities who
played the chief roles in it.46
S.K. Kapoor, in his book titled International Law and Human
Rights, has concisely commented upon various salient aspects of law of
the sea. He has devoted three chapters of his book towards the study of
various legal issues arising out of law of the sea. In the sixteenth
chapter titled The Law of the Sea, he has discussed the international as
well as the Indian legal position on various aspects of law of the sea.
He begins with a brief introduction of the United Nations Convention
on Law of the Sea, 1982. Then he proceeds to discuss the law relating
to territorial sea, maritime delimitation, innocent passage, contiguous
zone, archipelagic waters, continental shelf, exclusive economic zone
and the high seas. The provisions of the United Nations Convention on
Law of the Sea, 1982, and the Indian law, i.e., The Territorial Waters,
Continental Shelf, Exclusive Economic Zone and Other Maritime
Zones Act, 1976, have been discussed threadbare. The author has also
commented upon various important decisions of the International Court
of Justice dealing with maritime law. Provisions of the 1982
45 Philip Gosse, The History of Piracy (Dover Publications, New York, 2007).
46 Frank Sherry, Raiders and Rebels: A History of the Golden Age of Piracy (Harper
Collins Publishers, New York, 2007).
33
Convention pertaining to the rights of land locked States, international

sea bed area and marine scientific research have also been discussed
briefly. In the seventeenth chapter titled The International Tribunal for
Law of the Sea and Sea Bed Disputes Chamber, the author has
described various modes of dispute settlement mentioned in the
Convention of 1982, i.e., the International Tribunal for Law of the Sea,
the International Court of Justice, Arbitral Tribunal and Special
Arbitral Tribunal. In the eighteenth chapter titled Piracy, the author has
discussed the crime of piracy at sea. He has commented upon the
essential elements of piracy, piracy committed by unrecognized
insurgents, universal jurisdiction over piracy and piracy under
municipal law as distinguished from piracy under international law.47
H.O. Agarwal, in his book titled International Law and Human
Rights, has briefly commented upon the salient provisions of the United
Nations Convention on Law of the Sea, 1982.48 In the tenth chapter
titled Law of the Sea, he has discussed the international as well as the
national legal position on various maritime zones. He begins with a
brief introduction of the first, second and third United Nations
Conferences on Law of the Sea, as well as the United Nations
Convention on Law of the Sea, 1982. Then he proceeds to discuss the
national and international law pertaining to various maritime zones, i.e.,
territorial sea, contiguous zone, continental shelf, exclusive economic
zone and high seas. Thereafter he proceeds to discuss the crime of
piracy at sea and the problem of piracy off the coast of Somalia. The
provisions of the 1982 Convention dealing with deep sea mining and
settlement of maritime disputes have also been discussed. The author
has also commented upon various decisions of the International Court
of Justice and the International Tribunal for Law of the Sea which deal
with various aspects of maritime law. The developments which have
taken place after the adoption of the Convention of 1982 have also been
discussed briefly.49
Bimal N. Patel and Hitesh Thakkar, in their book titled Maritime
Security and Piracy (Global Issues, Challenges and Solutions), have
dealt comprehensively with the crime of piracy at sea under
47 S.K. Kapoor, International Law and Human Rights 250 (Central Law Agency,
Allahabad, 2011).
48 HO. Agarwal, International Law and Human Rights 116 (Central Law
49 Ibid.
34
international law and municipal law. They have also discussed various
aspects of maritime and coastal security. This book is the product of
“The Global Maritime Security and Anti Piracy Conference”, organized
by the Gujarat National Law University, Gandhinagar, from 25th to 27th
November 2011. It is a compilation of research papers and
presentations made by scholars from various parts of the world. The
research papers aim to analyze the issues and challenges from political,
security, legal, business, commerce and humanitarian perspectives. The
book is divided into five parts comprising of 32 articles in total. The
first part deals with “Global Cooperation, Policy and Law to Combat
Piracy”. The second part deals with “Impact of Piracy on Global
Business and Trade”. The third part deals with “Role of Sectoral and
Regional Cooperation in the Face of Piracy”. The fourth part deals with
“Innovative Strategies Towards Sea Lanes Security”.50 The fifth part
deals with “India: Concerns and Initiatives Towards Resolving the
Crisis of Piracy”. The sixth part deals with “Case Study and
Comments”. The seventh and the last part is a compilation of
bibliography and references.
In the second category of secondary sources, various articles written
by renowned jurists and academics from various countries, dealing with
various issues arising out of law of the sea, the crime of piracy and
India’s coastal security have been reviewed.
Sandra L. Hodgkinson and Others, in their article titled Piracy: New
Efforts in Addressing This Enduring Problem, highlight the problem of
piracy in Somalia and the efforts undertaken by various States and
international organizations to control this menace. In the introductory
part, the authors describe the magnitude of piracy in the twenty first
century and the objectives of pirates. Then they proceed to make a
historical survey of the crime of piracy. The principle of universal
jurisdiction over piracy has been briefly discussed. Then the authors
proceed to make a detailed analysis of the present United States policy
to combat piracy. The authors have also commented upon the anti
piracy and maritime security efforts of various States and international
organizations like the United Nations, International Maritime
Organization, North Atlantic Treaty Organization, etc. The efforts of
Kenya, Seychelles and the United States of America to prosecute and
punish captured pirates have also been discussed concisely. Thus, the
50 Bimal N. Patel and Hitesh Thakkar (eds.), Maritime Security and Piracy (Global
Issues, Challenges and Solutions), (Eastern Book Company, Lucknow, 2012).
35
authors have addressed the key cornerstones of the international legal

framework that addresses acts of piracy, including the customary
international law on piracy, the United Nations Convention on Law of
the Sea (UNCLOS), 1982, the Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation (SUA
Convention), 1988, Protocol to the SUA Convention and various UN
Security Council Resolutions. In the concluding part of the article, the
authors have given some valuable suggestions and recommendations to
effectively combat and curb the menace of piracy.51
James Kraska, in his article titled Indian Ocean Security and Law of
the Sea, highlights various aspects of law of the sea and maritime
security in relation to the Indian Ocean.52 He has discussed and
analyzed the most pressing issues effecting the security of the Indian
Ocean against the backdrop of international law. In the introductory
part, the author mentions that India, Pakistan, China and the USA
dominate the politics of the Indian Ocean region, even though China
and the USA are located outside of the maritime terrain. He argues that
the international law of the sea has served to help alleviate, as well as in
some ways facilitate conflict in the Indian Ocean. Then he proceeds to
outline the political and historical context for the current state of
geopolitics in the Indian Ocean region. Thereafter the author discusses
various important provisions of the international law of the sea dealing
with baselines, territorial sea, international straits, exclusive economic
zone and continental shelf by making reference to various coastal
States of the Indian Ocean region. In the next part, the author proceeds
to discuss the maritime relations between various coastal States of the
Indian Ocean region by briefly referring to various treaties, agreements
and memorandums of understanding signed between them. In the
concluding part of the article, the author examines the contribution of
law of the sea to the complex strategic geography of the Indian Ocean
region.53
Robert Beckman in his article titled The UN Convention on the Law
of the Sea and the Maritime Disputes in the South China Sea, highlights
the competing claims to territorial sovereignty over various islands in
the South China Sea. In the introductory part, he opines that if the
51 Sandra L. Hodgkinson, Gregory P. Noone, et.al., “Piracy: New Efforts in

Addressing This Enduring Problem” 36 TMLJ (2011).
52 James Kraska, “Indian Ocean Security and The Law of the Sea” 43 GJIL (2012).
53 Ibid.
36
States bordering the South China Sea comply in good faith with the
applicable provisions of the United Nations Convention on Law of the
Sea (UNCLOS), 1982, then the maritime disputes will be clarified, and
a framework will be established that will enable the claimants to
cooperate in the areas of overlapping maritime claims. However, if one
or more States bordering the South China Sea assert maritime claims
that are not in conformity with the Convention of 1982, other States
shall have no choice but to resort to the Convention’s dispute
settlement procedures in order to obtain a legally binding determination
of the validity of those claims.54 In the concluding part, the author
observes that China’s stubborn attitude in taking the stance that the
1982 Convention does not restrain or deny a country’s right which is
formed in history and abidingly upheld, threatens the entire legal
regime established under the UNCLOS, 1982. In the concluding part of
the article, the author opines that the South China Sea dispute engages
the fundamental interests in law of the sea not only of the States
bordering the South China Sea, but of all States with an interest in law
of the sea and in the continuing vitality of the UNCLOS, 1982.55
V. Subramanian Kumar and Ranjeet Sangle, in their article titled
Shipping/Maritime Law in India, provide a general overview of the
shipping laws in India, and the highlights, features and peculiarities of
the same, as developed over the past 166 years. In the introductory part,
the authors trace the origin and history of maritime law in India in the
English statutes on admiralty jurisdiction and the powers exercised by
English Courts over foreign ships. They opine that the international
character of maritime law, although heavily indebted to general
principles of international law, is subject to local laws as well. They
then proceed to discuss various maritime laws prevalent in India, i.e.,
from the Admiralty Offences (Colonial) Act, 1849, to the Multimodal
Transportation of Goods Act, 1993. They have also critically analyzed
the role of the Indian Judiciary in developing the maritime law through
judicial interpretation from time to time. They have discussed some
landmark judgements delivered by the Supreme Court of India and
various High Courts on various aspects of maritime law. In the
concluding part of the article, the authors observe that each problem in
54 Robert Beckman, “The U.N. Convention on The Law of The Sea And The
Maritime Disputes in The South China Sea” 107 AJIL (2013).
55 Ibid.
37
maritime law is distinct and requires a specific solution, which has to

be found according to the facts and circumstances of each case.56
Manimuthu Gandhi, in his article titled The Enrica Lexie Incident:
Seeing Beyond the Grey Areas of International Law, comprehensively
examines the various legal issues involved in bringing the two Italian
marines to justice for the killing of two Indian fishermen onboard an
Indian fishing boat in a shootout from Enrica Lexie, an Italian flagged
commercial vessel, in the contiguous zone of India on 15th February
2012.57 In the introductory part, the author observes that the Enrica
Lexie incident has attracted unprecedented media attention in India as
well as in other countries. He has given a brief summary of the entire
episode, i.e., from the registration of the First Information Report (FIR)
to the present status of the case. Then he proceeds to discuss the
jurisdictional and other legal issues raised before the High Court of
Kerala and the judgement delivered by the said Court. Thereafter he
discusses the jurisdictional and other legal issues raised before the
Supreme Court of India and the judgement delivered by the Apex
Court. The Kerala High Court and the Supreme Court of India have
taken into consideration various provisions of the UNCLOS, 1982,
SUA Convention 1988, Indian Penal Code, 1860, Criminal Procedure
Code, 1973, and The Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zones Act, 1976. The author has
also discussed various post judgement developments, including the
stance taken on this issue by the Government of India and the Italian
Government. Then he proceeds to discuss the grey areas of
international law in relation to the extension of coastal States’ criminal
jurisdiction under the UNCLOS, 1982, and general international law. In
the concluding part of the article, the author suggests that both India
and Italy should work together diplomatically to find an acceptable
solution to this case. He opines that where the limits of law are
exhausted, it is only through diplomacy that friendly relations can be
maintained and the desired results may be achieved.58
56 V. Subramanian Kumar and Ranjeet Sangle, “Shipping/Maritime Law in India”.

Available at:
http://www.inforise.org/docs/research/shippinglawinindiaarticle.pdf (Visited on
June 19, 2015).
57 Manimuthu Gandhi, “The Enrica Lexie Incident: Seeing Beyond The Grey Areas
of International Law” 53 IJIL (2013).
58 Ibid.
38
V. Srilatha, in her article titled India’s Coastal Security, highlights

various aspects of India’s coastal and maritime security. In the
introductory part, the author points towards the 7516 km long coastline
of India and observes that India’s coasts have always been vulnerable
to anti national elements. She states that India still requires a
comprehensive structure to monitor its coastline in the wake of growing
maritime piracy and terrorism. She then proceeds to discuss the new
maritime security plan formulated by the Government of India after the
26/11 terrorist attacks on Mumbai.59 Thereafter she proceeds to discuss
the salient features of Phases I and II of the coastal security scheme
formulated for strengthening the infrastructure for patrolling and
surveillance of the country’s coastal areas, particularly the shallow
areas close to coast, to check and counter illegal cross border activities
and criminal activities using the coast or sea. She has also exposed
various fault lines in India’s coastal security. In the concluding part of
the article, she opines that the coastal authorities still have a long way
to go to ensure a completely secure coastline because there is shortage
of manpower, acute paucity of funds, and shortage of modern boats,
equipment and gadgets to beef up coastal security.60
Paul Hallwood and Thomas J. Miceli, in their article titled The
Economics of International Cooperation in the Apprehension and
Prosecution of Maritime Pirates, highlight the law and economics of
international cooperation in the fight against maritime piracy. In the
introductory part, the authors point out that under the UNCLOS, 1982,
the State parties enjoy a very wide discretion in the matter of making
financial contributions towards combating piracy and prosecuting
pirates in domestic courts. Then the authors proceed to discuss the
nature and scope of modern piracy, emphasizing its costs to the
international community, the efficacy of pirate business model,
problems arising from trying pirates in domestic courts, the use and
financing of naval task forces, and the character of international law on
maritime piracy. In the concluding part of the article, the authors give
two important suggestions to combat the menace of piracy. Firstly, they
propose the use of International Criminal Court to try pirates. Secondly,
59 V. Srilatha, “India’s Coastal Security” 30 IOD (2012).

60 Ibid.
39
they advocate extension of the SUA Convention, 1988, to maritime

piracy as well as maritime terrorism.61
Patricia Schneider and Matthias Winkler, in their article titled The
Robin Hood Narrative: A Discussion of Empirical and Ethical
Legitimizations of Somali Pirates, highlight the various arguments
advanced by Somali pirates to justify their piratical acts. In the
introductory part, the authors observe that the Somali pirates do not like
to be addressed as pirates because the term implies criminality. They
rather call themselves as the saviours of the sea.62 Then the authors
proceed to mention that the Somali pirates claim that their livelihood
was destroyed by western countries, which resorted to illegal fishing
and toxic waste dumping in Somali waters. Consequently, they have
resolved to capture ships in order to avenge their loss. In the concluding
part of the article, the authors observe that the justifications advanced
by Somali pirates do not provide them with any legitimacy for their
actions. They further opine that it is empirically questionable that
modern pirates engage in piracy in order to protect local fishermen.63
Michael J. Kelly, in his article titled The Pre History of Piracy as a
Crime and its Definitional Odyssey, deals with the definition of piracy
which has fluctuated throughout the past 3000 years to account for both
the methods of the perpetrators and the power of the State. In the
introductory part, the author observes that piracy has long been
considered the grandfather of universal jurisdiction crimes. In the next
part, he mentions that piracy has been with us since men first set sail.
Then he proceeds to deal with the ever evolving and expanding
definition of piracy from the times of the ancient Rhodian Sea Law to
the UNCLOS, 1982. He further comments upon various cases in which
the US Courts interpreted and expanded the definition of piracy. In the
concluding part of the article, he observes that it is true that the law
evolves over time, but it should be in a determined and beneficial
61 Paul Hallwood and Thomas J. Miceli, “The Economics of International

Cooperation in the Apprehension and Prosecution of Maritime Pirates” 43 ODIL
(2012).
62 Patricia Schneider and Matthias Winkler, “The Robin Hood Narrative: A
Discussion of Empirical and Ethical Legitimizations of Somali Pirates” 44 ODIL
(2013).
63 Ibid.
40
manner. He suggests that a better and more uniform method for trying
pirates is to create a venue within the International Criminal Court.64
Ved P. Nanda and Jonathan Bellish, in their article titled Moving
From Crisis Management to a Sustainable Solution for Somali Piracy:
Selected Initiatives and the Role of International Law, highlight the
sharp decline in Somali piracy since 2012, which has occurred
primarily due to proactive naval actions from many countries and the
shipping industry’s preventive measures by implementing best
management practices and the employment of privately contracted
armed security guards.65 They have also discussed the role of various
international organizations which have been actively involved in the
complex process of combating piracy. They further proceed to discuss
the issue of criminal jurisdiction at sea and the international legal
framework to tackle piracy. In the concluding part of the article, the
authors opine that although piracy in Somalia has declined
considerably, yet the underlying causes of piracy, i.e., lawlessness and
lack of economic opportunities in Somalia have remained unchanged.
They recommend that the goal of the international community should
be to break the pirate business model and to enhance the rule of law
along the Somali coastline, while simultaneously working to provide
alternate means of livelihood to the Somali people.66
J. Ashley Roach, in his article titled Global Conventions on
Maritime Crimes Involving Piratical Acts, analyzes various counter
terrorism conventions enacted by the United Nations, i.e., the
International Convention Against the Taking of Hostages, 1979, the
SUA Convention, 1988, and the Protocol of 2005 to the SUA
Convention. He argues that these conventions can become potential
tools to combat piracy and other serious international maritime crimes.
He then proceeds to make a critical analysis of the offences under these
conventions. In the concluding part of the article, the author observes
that these three conventions collectively fill many of the limitations of
the UNCLOS, 1982, articles dealing with piracy. Used together, they
64 Michael J. Kelly, “The Pre History of Piracy as a Crime and Its Definitional
Odyssey” 46 CWRJIL (2013).
65 Ved P. Nanda and Jonathan Bellish, “Moving From Crisis Management To A
Sustainable Solution For Somali Piracy: Selected Initiatives And The Role Of
International Law” 46 CWRJIL (2013).
66 Ibid.
41
complement each other in the context of piracy and armed robbery at

sea.67
Sulakshna Beekarry, in her article titled Assessing Current Trends
and Efforts to Combat Piracy, observes that the sudden rise of piracy
incidents in the Gulf of Aden has presented the international
community with immediate and unique legal challenges. She also
addresses the current trends and efforts to combat Somali piracy. She
further opines that to effectively address issues arising out of piracy,
legal reform through regional and international cooperation is
required.68 She asserts that time has come for new mechanisms such as
transfer agreements for prosecution and post trial transfer agreements to
relieve the burden on prosecuting States that are often reluctant to
accept long periods of incarceration on their soil. She further opines
that it is also time to review prosecution techniques as foreign navies at
sea prepare more and more evidence for onward transmission to
regional courts. In the concluding part of the article, she mentions that
many States have not enacted piracy specific legislation, as a result of
which they have considerable lacunae in their domestic law regarding
the issue of piracy. She suggests that in order to completely eradicate
piracy from Somalia, employment opportunities should be created for
the Somali people and their poverty should be alleviated.69
Hugh R. Williamson, in his article titled New Thinking in the Fight
Against Marine Piracy: Financing and Plunder Pre Empting Piracy
Before Prevention Becomes Necessary, deals with various aspects of
modern maritime piracy. In the introductory part, the author deals with
the Dalhousie University Marine Piracy Project which was launched in
2011 to examine modern piracy on a global basis. Then he proceeds to
discuss the emergence of contemporary piracy from opportunistic to
organized crime. Thereafter he proceeds to comment upon the piracy
cycle, the piracy business model and the piracy indicators model. In the
concluding part of the article, he observes that maritime piracy is a
business and it will persist so long as there is money to be made. He
suggests that potential outbreaks of piracy must be identified at an early
67 J. Ashley Roach, “Global Conventions on Maritime Crimes Involving Piratical

Acts” 46 CWRJIL (2013).
68 Sulakshna Beekarry, “Assessing Current Trends and Efforts to Combat Piracy” 46
CWRJIL (2013).
69 Ibid.
42
stage so as to allow for the implementation of a pre emptive strategy

and also to prevent the development of full scale organized piracy.70
Jon Huggins and Liza Kane Hartnett, in their article titled Somali
Piracy – Are We at the End Game?, examine the current state of
Somali piracy and provide some recommendations for reaching a
sustainable solution both at sea and on shore.71 They opine that while
the initial crisis has been mitigated, a continued commitment and an
increased focus on onshore initiatives are needed to ensure that a long
term and sustainable solution to Somalia based piracy is reached. In the
concluding part of the article, they observe that for the international
community to truly crush piracy, we must see a continued dedication to
better governance systems, the building of international, regional and
Somali legal and institutional capacity, and the strengthening of
security sectors.72
Yvonne M. Dutton, in her article titled Pirates and Impunity: Is the
Threat of Asylum Claims a Reason to Allow Pirates to Escape Justice?,
highlights that only a small number of pirates are actually captured and
brought to trial, as opposed to those captured and released. She
observes that the threat of asylum claims is frequently offered to
explain the reluctance of western countries to prosecute pirates in their
own courts. She then proceeds to examine international refugee law and
international human rights law in an effort to determine the likely
viability of any asylum claims that may be brought by the pirates
convicted in the west. In the concluding part of the article, she observes
that the language of all the relevant international treaties,
interpretations of that language, and State practice, all generally
indicate that pirates who are convicted of violent crimes should not be
eligible for asylum or other complementary forms of protection.73
In the third category of secondary sources, various conventions
dealing with the international law of the sea, maritime piracy and
maritime terrorism and security have been reviewed.
70 Hugh R. Williamson, “New Thinking in the Fight Against Marine Piracy:

Financing and Plunder Pre Empting Piracy Before Prevention Becomes
Necessary” 46 CWRJIL (2013).
71 Jon Huggins and Liza Kane Hartnett, “Somali Piracy – Are We at the End Game?”
46 CWRJIL (2013).
72 Ibid.
73 Yvonne M. Dutton, “Pirates and Impunity: Is The Threat Of Asylum Claims A
Reason To Allow Pirates To Escape Justice?” 34 FILJ (2011).
43
All the four Geneva Conventions of 1958 dealing with various

aspects of law of the sea were the result of the First United Nations
Conference on Law of the Sea, which was held at Geneva, Switzerland,
from 24th February to 27th April 1958. The Geneva Convention on the
High Seas, 1958, codified for the first time the law relating to high seas.
It has been ratified by 63 States till date.74 It comprises of 37 articles
which deal with various aspects of the law of high seas, like freedom of
the high seas, flag State jurisdiction, rights of land locked States, safety
at sea, piracy, hot pursuit, marine pollution, laying of submarine cables
and pipelines, etc.75
The Geneva Convention on Fishing and Conservation of the Living
Resources of the High Seas, 1958, supplements the Geneva Convention
on the High Seas, 1958. It has been ratified by 35 States till date. It
comprises of 22 articles which deal with various aspects like fishing
rights on the high seas, conservation of the living resources of the high
seas, settlement of disputes by special commission, etc.76
The Geneva Convention on the Territorial Sea and the Contiguous
Zone, 1958, codified for the first time the law relating to the territorial
sea and the contiguous zone. It has been ratified by 52 States till date. It
comprises of 32 articles which deal with various aspects like
sovereignty over territorial sea, baseline for measuring the breadth of
territorial sea, right of innocent passage, rights in contiguous zone, limit
of contiguous zone, etc. However, this convention could not determine
the precise breadth of territorial sea.77
The Geneva Convention on the Continental Shelf, 1958, codified for
the first time the law relating to the continental shelf. It has been
ratified by 58 States till date. It comprises of 15 articles which deal with
the definition of continental shelf, limit of continental shelf, rights of
coastal States over continental shelf, etc.78 The four Geneva
74 Available at: http://www.gc.noaa.gov/documents/8_1_1958_high_seas.pdf (Visited

on June 20, 2015).
75 Ibid.
76 Available at: http://www.gc.noaa.gov/documents/8_1_1958_fishing.pdf (Visited on
June 20, 2015).
77 Available at:
http://legal.un.org/ilc/texts/instruments/english/conventions/8_1_1958_territorial
_se a.pdf (Visited on June 20, 2015).
78 Available at: http://maritimeinfo.moi.gov.tw/marineweb/pdf/D01E.pdf (Visited on
June 20, 2015).
44
Conventions of 1958 provided a regime for the use of the sea and the
continental shelf. Most of their provisions have been incorporated with
minor changes in the United Nations Convention on Law of the Sea,
1982.
The United Nations Convention on Law of the Sea (UNCLOS),
1982, was the result of the Third United Nations Conference on Law of
the Sea, which took twelve sessions (from 1973 to 1982) to draft this
convention. It has been ratified by 167 parties till date (166 countries
and the European Union). It is a comprehensive document comprising
of 320 articles divided into 17 parts along with 9 annexes. It is the
lengthiest convention on any subject in international law. It has
codified almost every aspect of law of the sea and is a significant
improvement over the four Geneva Conventions of 1958. It has aptly
been called as “The Constitution for the Oceans”. It has become almost
universal and is regarded as codification of the customary international
law of the sea.79
The International Convention Against the Taking of Hostages, 1979,
was enacted by the United Nations to develop international cooperation
between States in devising and adopting effective measures for the
prevention, prosecution, and punishment of all acts of hostage taking. It
has been ratified by 174 States till date. It comprises of 20 articles.80
The Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation (SUA Convention), 1988, was enacted
by the United Nations to develop international cooperation between
States in devising and adopting effective and practical measures for the
prevention of all unlawful acts against the safety of maritime
navigation, and the prosecution and punishment of their perpetrators. It
has been ratified by 164 State parties till date. It comprises of 22
articles. The Protocol for the Suppression of Unlawful Acts Against the
Safety of Fixed Platforms located on the Continental Shelf, 1988, was
concluded at the same time as the SUA Convention. It extends the
requirements of the SUA Convention to fixed platforms such as those
79 Available at:
(Visited on June 20, 2015).
80 Available at: http://www.un.org/en/sc/ctc/docs/conventions/Conv5.pdf (Visited on
June 20, 2015).
45
engaged in the exploration of offshore oil and gas.81 The Protocol of

2005 further supplemented the SUA Convention by adding some new
provisions to it and amending some provisions. It has been ratified by
31 States till date.82
1.10 PLAN OF STUDY

The author has divided the study into nine chapters in order to
achieve the objective of understanding the national and international
law of the sea and maritime piracy.
The First, Introductory Chapter deals with the origin of continents
and oceans, religious and economic significance of the sea, the
definition of piracy, research hypotheses, research methodology,
research objectives, review of literature and plan of study.
The Second Chapter titled Law of Sea: Historical Perspective, deals
with the evolution of international law of the sea from ancient to
medieval to modern times.
The Third Chapter titled Piracy at Sea: Historical Perspective, deals
with the historical perspective of the crime of piracy from ancient to
medieval to modern times. It proceeds to discuss various social and
geographical conditions which preceded the rise of piracy at different
times. It also depicts the periodical rises and declines of piracy, its
forms and fortunes, and the most notorious pirates of the Golden Age
of Piracy.
The salient provisions of the United Nations Convention on Law of
the Sea, 1982, and some important decisions of the International Court
of Justice and the International Tribunal for Law of the Sea on various
aspects of maritime law have been discussed in the Fourth chapter. This
chapter further proceeds to make a detailed analysis of the South China
Sea Dispute and the East China Sea Dispute. It is titled as Law of Sea:
International Scenario.
The Chapter titled Law of Sea: Indian Scenario, reflects on various
Indian statutes dealing with maritime law. It also enlists various
international conventions signed by India, which deal with various
aspects of maritime law. It further proceeds to discuss the role of the
81 Available at: http://www.un.org/en/sc/ctc/docs/conventions/Conv8.pdf (Visited on

June 20, 2015).
82 Available at:
https://www.unodc.org/tldb/pdf/Protocol_2005_Convention_Maritime_navigatio
n.pd f (Visited on June 20, 2015).
46
Indian Judiciary in interpreting various maritime laws. Important

judgements on maritime law delivered by the Supreme Court of India
and various High Courts have been discussed briefly.
Recommendations of the thirteenth and the twentieth Law
Commissions of India have been briefly discussed. This chapter, which
is the Fifth one, also highlights the maritime boundary disputes and
maritime boundary agreements between India and neighbouring
countries.
The Sixth Chapter titled Piracy at Sea (Anti Piracy Law and
Measures): International Scenario, makes a detailed analysis of the
definition of piracy under international law and distinguishes it from
piracy under municipal law. Various decisions of American Courts,
Privy Council and the International Tribunal for Law of the Sea dealing
with the definition of piracy have been discussed. This chapter further
proceeds to deal with the incidence and magnitude of piracy and the
causes of piracy in Somalia. Thereafter, the international legal
framework relating to piracy and violent crimes at sea has been
comprehensively discussed. Anti piracy and maritime security
measures adopted by various countries and international organizations
have also been examined in this chapter.
The Seventh Chapter titled Piracy at Sea (Legal Issues and
Challenges): International Scenario, highlights various legal issues and
challenges which arise while prosecuting pirates. Principles of criminal
jurisdiction at sea and universal jurisdiction over pirates have been
discussed. This chapter further proceeds to analyze the efforts of
various countries in the prosecution of pirates by reference to the
bilateral agreements on the prosecution of pirates concluded between
various countries. The decisions of the Courts of Kenya, Seychelles and
the USA in which pirates were prosecuted and convicted have been
discussed. The legal issues arising out of extradition of pirates and the
fear of asylum claims have also been discussed comprehensively.
The Eighth Chapter titled Piracy at Sea: Indian Scenario, deals with
the Indian law on maritime piracy. Various Indian statutes dealing with
piracy have been discussed briefly. This chapter then proceeds to deal
with the bilateral agreements entered into by India with other countries
for the purpose of combating piracy. The role played by India in
cooperating with various international and regional organizations for
the purpose of combating piracy and enhancing maritime security has
been discussed comprehensively. Role of the Indian Navy and the
Coast Guard in combating piracy has been discussed briefly. This
47
chapter further proceeds to make a detailed analysis of India’s maritime

and coastal security plan. Criminal jurisdiction at sea under Indian law
and the prosecution of pirates by Indian courts have been discussed
comprehensively. This chapter also makes a detailed analysis of the
Enrica Lexie incident.
The Ninth and the Concluding Chapter proceeds to make an analysis
of the present status of the United Nations Convention on Law of the
Sea, 1982, loopholes in this convention, and relevance of the crime of
piracy in the modern era. The author has also given some humble
suggestions and recommendations to improve the efficacy of the
UNCLOS, 1982, and to combat piracy in a more effective manner.
48
CHAPTER - II:
LAW OF SEA:
HISTORICAL PERSPECTIVE
“I have always been fascinated by the Ocean, to dip a limb beneath
its surface and know that I am touching eternity; that it goes on
forever, until it begins here again”.
Lauren DeStefano (An American Author) 83
2.1 GENERAL INTRODUCTION

Today, there is virtually no land on Earth (outside the polar regions)
that is not a part of some State’s territory and subject to its authority.
But 71% of the Earth’s surface is covered by sea, which has not been
hospitable to human habitation and which historically remained beyond
the exclusive authority of any State. In the modern era, law of the sea
has undergone major transformations.84 No other branch of
International Law has undergone more revolutionary changes during
the past 60 years than the law of the sea and maritime highways. The
classical law of the sea divided the hydrosphere into the Territorial Sea
and the High Seas, endowing the former to the coastal state and
keeping the latter free and open to all states. Apart from a narrow belt
of territorial waters with the coastal states’ jurisdiction and a few rules
of the road that came to be developed, the whole ocean remained an
area of no law, free for all to be exploited as they wished, according to
the chaotic play of selfish interests. Leaving aside internal waters such
as ports, harbours, roadsteads and closed in bays, it was historically the
open sea or the high seas which primarily concerned statesmen and the
rulers of all nations in the medieval and post medieval period, and
jurists of International Law from the sixteenth century onwards.85
83 Available at: http://www.seasky.org/quotes/sea-quotes-oceans.html (Visited on

September 20, 2014).
84 Louis Henkin, International Law: Politics and Values 78 (Martinus Nijhoff
Publishers, Dordrecht, The Netherlands, 1995).
Allahabad, 2011).
According to Ulpian, “the sea was open to everybody by nature”.86

According to Celsus, “the sea, like the air, was common to all
mankind”.87
The law of the sea as a discipline is not new, although its distinct
and independent existence could be set at the first half of the twentieth
century, as the result of the different international efforts to codify it
and to reach consensus on the basic rules that had emerged through the
practice of states in the previous five centuries, and rooted in the very
beginning of human civilization. The more important the interaction
with the sea became for an empire or human agglomeration, the more
common the attempts to regulate the latter became, and those
regulations went from simple assignment of competences to officers, to
claim large areas of the sea under the exclusive control of that
reign. Nevertheless, it is important to highlight some of those events as
they contributed in one way or the other to the current status of
development of the law of the sea.88
2.2 EARLY HISTORY

Beginning in the seventh century, a number of compilations of rules
applicable on the seas began to circulate in Europe. Several of these
purely private compendia gained such widespread acceptance and
authority that the rules laid down in them achieved with time the status
of customary law.89 In the Mediterranean area, the earliest generally
accepted rules were collected in the “Lex Rhodia”90 and the “Rhodian
86 Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law: Volume
I (Peace) 720 (Pearson Education Ltd., New Delhi, 2005).
87 Ibid.
88 Lesther Antonio Ortega Lemus, “Brief Outline of the History and Development of
the Law of the Sea”. Available at:
https://www.academia.edu/1193093/Brief_Outline_of_the_History_and_Develop
me nt_of_the_Law_of_the_Sea (Visited on September 21, 2014).
89 Gerhard Von Glahn, Law Among Nations: An Introduction to Public International
Law 322 (Mac Millan Publishing Co., New York, USA, 1976).
90 Rhodes was a strong, independent seafaring and trading island south of modern
Greece, and of great antiquity, having, for example built one of the seven
wonders of the world, the Colossus of Rhodes. Between 1,000 BC and 600 BC,
the people of Rhodes developed a strong commercial fleet and they were soon
everywhere in the Mediterranean, as well as establishing trading colonies along
the west coast of Italy, France and Spain. Concurrently, the people of Rhodes
developed rules of law to deal with occasional shipping disputes including a
code of maritime law (quite likely the world's first, given the developing state of
50
Sea Law”,91 whose various versions were collected in the seventh

century. It was followed by the much better known collection of rules
known as the “Consolato Del Mare” (The Consulate of the Sea),92
which appeared in the early fourteenth century. The title of the work is
derived from its compilers, i.e., the official judges of the ports, who
were designated as consuls. Written in the Catalan language, its
writing); what the Cambridge Companion to the Roman Republic called "the
mysterious Lex Rhodia". No copy of the great Lex Rhodia has ever been found.
Yet Rhodian maritime law survived until the Roman Empire, and was adopted
by the Romans. It is explicitly mentioned in Book 2, Title 7 of the Roman law
text, Opinions of Julius Paulus. The five meager provisions which have
survived, provide as follows: (1) If merchandise is thrown overboard for the
purpose of lightening a ship, what has been lost for the benefit for all, must be
made up by the contribution of all. (2) If after a ship has been lightened by
throwing the merchandise overboard, it should be lost, and the merchandise of
others should be recovered by divers, it has been settled that he who threw his
property overboard for the purpose of saving the ship will be entitled to an
account of the same. (3) Where either the ship, or a mast is lost in a storm, the
passengers are not liable to contribution, unless the vessel was saved through the
passengers themselves cutting down the mast to ensure their own preservation.
(4) Where, for the purpose of lightening a ship, merchandise is thrown into a
boat and lost, it is established that the loss shall be made good by the assessment
of the property which remained safe in the ship. If, however, the ship should be
lost, no account should be taken of the boat which was saved, or of the
merchandise it may have contained. (5) Contribution by assessment should be
made where property has been thrown into the sea, and the ship has been saved.
91 Rhodian Sea Law was a body of regulations governing commercial trade and
navigation in the Byzantine Empire in the beginning of the seventh century. It
was based on a statute in the Digest of the Code of Justinian commissioned in the
sixth century, and on maritime customary law originating in Rhodes in ancient
times. The regulations concentrated on the liability for the cost of lost or
damaged cargo. Cargo loss was greatest during storms, when part or all of it had
to be thrown overboard in order to save the ship. Thus, the maritime law served
as a form of insurance, dividing the cost of the losses between the ship owners,
the owners of the cargo and the passengers. Rhodian Sea Law persisted in
influence till the end of the twelfth century. In the thirteenth and fourteenth
centuries, the Byzantine sea commerce dwindled, and eventually the law became
obsolete.
92 It was primarily concerned with matters of private law. It dealt with the rights and
duties attending the construction or sale of a ship, rights and duties of the master,
the mariners and the passengers, and with documents related to affreightment. It
also treated at some length a vital aspect of maritime warfare, i.e., prize law. It
aimed at protection of neutral property. It provided that neutral goods on enemy
ships and neutral ships carrying enemy goods should not be subject to capture by
a belligerent.
51
original title was “The Laws of Barcelona”. Although several

authorities claim that the code originated in Marseilles, the oldest
existing printed version, dated 1494, came from Barcelona.93 In the
Atlantic area, the basic rules of the sea were collected in the “Rolles de
Oleron” (The Rules of Oleron),94 a compilation set down in the year
93 Supra note 7.
94 The Rules of Oleron are divided into 47 Articles. Article I provides that when
several joint owners make a man master of a ship or vessel, and the ship or
vessel departing from her own port, arrives at Bordeaux, Rouen, or any other
such place, and is there freighted to sail for Scotland, or some other foreign
country; the master in such case may not sell or dispose of that ship or vessel,
without a special permission of the owners: but in case he wants money for the
victualling, or other necessary provisions of the said vessel, he may for that end,
with the advice of his mariners, pawn or pledge part of the tackle or furniture of
a ship.
Article II provides that if a ship or other vessel be in a port, waiting for weather, and
a wind to depart, the master ought when that comes, before his departure to
consult his company, and say to them, Gentlemen, What think you of this wind?
If any of them see that it is not settled, and advice him to stay until it is, and
others, on the contrary, would have him make use of it as fair, he ought to follow
the advice of the major part. If he does otherwise, and the vessel happens to
miscarry, he shall be obliged to make good the same, according to the value
upon a just appraisement.
Article III provides that if any vessel, through misfortune, happens to be cast away,
in whatsoever place it be, the mariners shall be obliged to use their best
endeavours for saving as much of the ship and lading as possibly they can: and if
they preserve part thereof, the master shall allow them a reasonable consideration
to carry them home to their own country. And in case they save enough to enable
the master to do this, he may lawfully pledge to some honest persons such part
thereof as may be sufficient for that occasion. But if they have not endeavoured
to save as aforesaid, then the master shall not be bound to provide for them in
anything, but ought to keep them in safe custody, until he knows the pleasure of
the owners.
Article IV provides that if a vessel departing with her lading from Bordeaux, or any
other place, happens in the course of her voyage, to be rendered unfit to proceed
therein, and the mariners save as much of the lading as possibly they can; if the
merchants require their goods of the master, he may deliver them if he pleases,
they paying the freight in proportion to the part of the voyage that is performed,
and the costs of the salvage. But if the master can readily repair his vessel, he
may do it; or if he pleases, he may freight another ship to perform his voyage.
And if he has promised the people who helped him to save the ship the third, or
the half part of the goods saved for the danger they ran, the judicatures of the
country should consider the pains and trouble they have been at, and reward
them accordingly, without any regard to the promises made them by the parties
concerned in the time of their distress.
52
1286 in Old French language. A mention of the laws in a report written

in the twelfth year of King Edward III’s reign (1329) confirms that the
laws were in use in England in the first half of the fourteenth century.95
In France, the “Rolles de Oleron” had been adopted as the official sea
law by 1364. Copies of the “Rolles de Oleron” spread throughout
Western Europe in the fourteenth century. There are two translations of
the Rules, one into Dutch and the other into Scottish. The first is known
as the “Vonnesse Van Damme” and dates back to the late thirteenth or
early fourteenth century. The Scottish translation is titled as “Of Lawis
of Scyppis” and dates back to the second half of the fourteenth
century.96
In England, the ancient “Black Book of the Admiralty”, compiled
during the reigns of King Richard II, King Edward III and King Henry
IV, represented a collection of rules for use in the Admiral’s Court. It
was originally written in Norman French language and was translated
to English during the reign of King Charles II in the seventeenth
century. In northern Europe, the “Sea Code of Wisby” was the most
important collection of the generally accepted rules. Its first half was
merely a translation of the first twenty four articles of “Rolles de
Oleron”. Its second half, i.e., the “Ordinancie”, compiled in
Amsterdam in 1407, added numerous principles adopted by the
Hanseatic cities. The first printed edition of the work, printed at
Copenhagen in 1505, was titled Gothlantic Sea Law. It represents the
handwritten compilation used officially by the Maritime Court at
Wisby, on the island of Gothland.97
Article V provides that if a vessel departing from one port, laden or empty, arrives at
another, the mariners shall not leave the ship without the master’s consent: if
they do, and by that means she happens to be lost or damnified, they shall be
answerable for the damage.
95 Supra note 7. The report claims that King Richard I, who reigned from 1189 to
1199, wrote the laws at Oleron on his way back from the Holy Land and
subsequently brought them to England. This is not consistent with historical fact,
but the mention of the laws does show that they were in use at the time of the
report.
96 Edda Frankot, “Medieval Maritime Law from Oleron to Wisby: Jurisdictions in the
Law of the Sea” in Juan Pan Montojo and Frederik Pedersen (eds.) Communities
in European History: Representations, Jurisdictions and Conflicts (Volume II)
159 (2007). Also Available at:
http://lettereold.humnet.unipi.it/ai/books2/communities/08_Frankot.pdf (Visited
on October 16, 2014).
97 Supra note 7, at 323.
53
2.3 THE HANSEATIC LEAGUE

Various international phases of medieval maritime and commercial
law can be described by reference to the history of the Hanseatic
League. It was an organization founded by north German towns and
German merchant communities abroad to protect their mutual trading
interests. It dominated commercial activity in northern Europe from the
thirteenth to the fifteenth century.98 At the zenith of its flourishing
period, i.e., in the fourteenth and fifteenth centuries, it consisted of
about 70 German cities. For the most part, the City of Lubeck was the
leader of the League. Legally, it was a loose type of association.
International negotiations were not conducted by the League, as it did
not have a common seal.99 They were conducted by individual member
towns, normally by Lubeck and others prominently interested in a
particular situation. England, Russia, Flanders and the Scandinavian
countries were the main trade and treaty partners of the League. The
League won extensive franchises in important markets through its
achievements in commerce and navigation, and also by resorting to
political and naval pressure. These franchises were not limited to the
granting of safety for persons and goods and to the freedom of
commerce and navigation. They also included the right to have, within
a definite area, building for personal and trading purposes, landing
places, churches, graveyards, etc. The main permanent settlements of
the League, called Kontore (counters), were established at London,
Bergen and Novgorod. The members of a Kontor formed a self
governing association under the authority of the League. Its use of the
trade boycott as a weapon against foreign adversaries pointed to the
powerful position of the League. The boycott, declared by a resolution
was binding upon the members of the League. It was peaceful as it did
not include naval or other armed action.100
The history of the League in relation to England offers particular
interest from the legal angle. The English Kings favoured foreign
merchants for fiscal reasons. They were supported in this policy by the
British Parliament and Nobility, but opposed by the cities which kept a
sharp eye upon royal franchises for the protection of their trading
98 Available at: http://www.britannica.com/EBchecked/topic/254543/Hanseatic-

League (Visited on October 16, 2014).
99 Arthur Nussbaum, A Concise History of the Law of Nations 33 (The Mac Millan
Company, New York, 1954).
100 Id., at 34.
54
liberty. A long and complicated legislative development started from

this conflict in the middle of the twelfth century. The Hanseatics were
successful on the whole and they far outdid their continental rivals,
such as the wealthy Lombards. In addition to being the main
beneficiaries of England’s favourable mercantile legislation, the
Hanseatics gained privileges of an unusual kind. They were allowed to
have their own courts for internal controversies.101 Mixed tribunals
were provided for disputes with the Englishmen. These concessions
were largely one sided, as the Hanseatics were able to deny the English
reciprocity for trading in Hanseatic towns till 1436.102
The League reached its peak position by the “Treaty of Utrecht”,
concluded in 1472 and signed by King Edward IV.103 However, by the
beginning of the sixteenth century, the League had passed the zenith of
its power. It was no longer able to maintain its precious privileges,
which faded completely during the reign of Queen Elizabeth I.104
2.4 IMPOSSIBILITY OF MEDIEVAL INTERNATIONAL

SEA LAW
The regulation of sea shipping, though characterized by contacts and
relations between people from various different territories, has been
shown to have been far from supra territorial in medieval Northern
Europe. For a law to function efficiently there needs to be either an
authority which can implement such a law from above, or a community
of people who swear an oath to abide by that law. Neither of these
existed on a supra territorial level in medieval Northern Europe. The
Hanseatic League came closest to the definition of a supra territorial
organisation that could formulate a common law, but it always
remained a loose federation of autonomous towns and towns which
were subject to different lords, and had no power to implement such a
law. Every statute that was decided upon had to be confirmed by the
council of each individual town in order to become valid. Comparing
101 Id., at 35.

102 Ibid.
103 By this treaty, the privileges of the League were declared to take precedence over
the liberties of the city of London. The Hanseatics were entirely exempted from
the jurisdiction of the Admiralty courts and other English courts, and from
certain internal tolls. This was a tremendous success for the League, explicable
by political difficulties in which King Edward IV found himself.
55
the laws of important Hanseatic towns such as Lubeck, Hamburg,

Danzig and Riga, it becomes clear that especially these larger towns
attached great value to having their own laws. No efforts to devise a
general Hanseatic law were therefore made until the late sixteenth
century, when the League had already lost most of its power to the
thriving national states of the Baltic region.105 Even if it would have
been possible for the Hanseatic League to implement such a general
law for its towns, the non Hanseatic towns would still have been
subject to other jurisdictions, such as those of England, Scotland, and
Denmark. This patchwork of jurisdictions in medieval Northern Europe
made the coming into being of a supra territorial law or a common
maritime court impossible.106
2.5 CLAIMS TO MARITIME SOVEREIGNTY

Claims to sovereignty over various parts of the open sea began to be
made in the second half of the middle ages.107 The first instances where
the regime of the seas came into discussion were the claims made by
some realms, like Venice over the Adriatic Sea, or Genoa over the
Ligurian Sea. That phenomenon spread around in Medieval Europe, as
the situation in the Baltic Sea, Northern Sea, Irish Seas and other
spaces which were claimed by the Swedish, Danish, English, etc. These
claims usually were sustained by the ruler’s commercial and military
power, and demanded from third parties tolls and taxes for the mere
transit through those waters. But once the small City States declined in
power and the larger Empires arose, claims also grew in extension and
complexity. The most famous example of the aforementioned is the
“Treaty of Tordesillas”, concluded between the sovereigns of Spain
and Portugal in 1494. By that treaty, both kingdoms literally divided the
whole world into two parts, including the oceans and
navigation routes. From that division, monopoly over commerce and
navigation to and from their subsequent colonies sprung, as well as the
fierce reply from other nations by means of supporting buccaneers and

106 Ibid.
107 In European History, the Middle Ages is the period between the end of the
Roman Empire in 476 AD and about 1500 AD, especially the later part of this
period.
56
pirates, or issuing letters of marque, as well as making a wide use of the

institution of the privateering and the maritime prize.108
In the fifteenth and sixteenth centuries (the period of great maritime
discoveries by European navigators), numerous claims were made by
the powerful maritime states to the exercise of sovereignty,
indistinguishable from ownership, over specific portions of the open
sea.109 This is evident from the following examples-
I. Portugal claimed sovereignty over the whole of the Indian Ocean
and the Atlantic Ocean towards the south of Morocco.110
II. Spain claimed sovereignty over the whole of the Pacific Ocean and
the Gulf of Mexico.111
III. Great Britain claimed sovereignty over the Narrow Seas, the North
Sea and the Atlantic Ocean from the North Cape to Cape Finisterre.112
IV. Both Sweden and Denmark claimed sovereignty over the Baltic
Sea.113
V. The Republic of Venice claimed sovereignty over the Adriatic
Sea.114
VI. The Republic of Genoa claimed sovereignty over the Ligurian
Sea.115
These claims were more or less successfully asserted over many
years and were more or less recognized by other states, which becomes
evident from the following examples-
I. In 1478, Frederick III, the Emperor of Germany, had to seek the
permission of the Republic of Venice for importing Corn from Apulia
through the Adriatic Sea.116
II. In 1554, when King Philip II of Spain was on his way to England to
marry Queen Mary, the British Admiral who met him in the British
Seas, fired on his ship for flying the Spanish flag.117
108 Supra note 6.

109 Supra note 4.
110 Ibid.
111 Ibid.
112 Ibid.
113 Ibid.
114 Ibid.
115 Ibid.
116 Ibid.
117 Ibid.
57
III. In 1606, the King of Denmark, while returning from a visit to Great
Britain, was forced to bring down the Danish flag by a British Captain
who met him off the mouth of the Thames River.118
IV. In the seventeenth century, Great Britain compelled foreigners to
obtain an English license for fishing in the North Sea. When in 1636,
the Dutch attempted to fish in the North Sea without such license, they
were attacked and were compelled to pay 30,000 Pounds as penalty to
the British.119
Thus, a state which claimed sovereignty over a part of the open sea
required the navigating vessels to honour its flag as a symbol of
recognition of its sovereignty. Maritime sovereignty also found
expression in the levying of tolls from foreign ships, in the interdiction
of fisheries to foreigners and in the control (or even the prohibition) of
foreign navigation.120
2.6 FREEDOM OF THE SEAS

In 1580, Mendoza, the Spanish ambassador, lodged a complaint with
Queen Elizabeth I, against Drake, a British sailor, for having made his
famous voyage to the Pacific Ocean. Queen Elizabeth I answered that
vessels of all nations could navigate on the Pacific Ocean, since the use
of the sea and the air was common to all. She further stated that no title
to the ocean could belong to any nation, since neither nature nor regard
for public use permitted any possession of the ocean.121 This was the
seed out of which grew the principle of “the freedom of the high seas”.
Twenty nine years later, in 1609, Hugo Grotius (now known as the
father of International Law) severely criticized and opposed the
extensive claims of maritime sovereignty over various parts of the high
seas, in his treatise titled “Mare Liberum” (The Freedom of the
Seas).122 His intention was to show that the Dutch had a right of
navigation and commerce with the Indies despite Portuguese
interdictions. He opined that “my intention is to demonstrate briefly
118 Ibid.
119 Ibid.
120 Ibid.
121 Ibid.
122 Its full title is “Mare Liberum Seu de Jure quod Batavis Competit ad Indicana
Commercia Dissertatio”. It was first published in 1609 in Latin language. It was
translated into English for the first time by Richard Hakluyt between 1609 and
1616.
58
and clearly that the Dutch, that is to say, the subjects of the United
Netherlands, have the right to sail to the East Indies, as they are now
doing, and to engage in trade with the people there. I shall base my
argument on the following most specific and unimpeachable axiom of
the Law of Nations, called a primary rule or first principle, the spirit of
which is self-evident and immutable, to wit: Every nation is free to
travel to every other nation, and to trade with it. God himself says this
speaking through the voice of nature; and inasmuch as it is not his will
to have nature supply every place with all the necessaries of life, he
ordains that some nations excel in one art and others in another. Why
is this his will, except it be that he wished human friendships to be
engendered by mutual needs and resources, lest individuals deeming
themselves entirely sufficient unto themselves should for that very
reason be rendered unsociable? So by the decree of divine justice it
was brought about that one people should supply the needs of another.
As Pliny the Roman writer says that in this way, whatever has been
produced anywhere should seem to have been destined for all”. 123
His objections to maritime sovereignty over the high seas were
based predominantly upon the following two grounds:
I. No ocean can be the property of a nation because it is impossible
for any nation to take it into possession by occupation. Thus, the sea is
by nature free from the sovereignty of any state.124
II. Nature does not give a right to anybody to appropriate things that
may be used by everybody and are exhaustible. In other words, the
open sea is a “res gentium” or “res extra commercium”.125
Thus, in opposition to the principle of maritime sovereignty, the
principle of “freedom of the high seas” began to develop, in accordance
with the mutual and obvious interests of the maritime nations. It was
realized that too often and to the great inconvenience of all states,
conflicting claims were made to the same parts of the open sea. It came
to be further realized that any claims to maritime sovereignty were of
little practical value except in time of War, when it was useless to
assert them without the backing of a powerful Navy.126
123 Hugo Grotius, Mare Liberum Seu de Jure quod Batavis Competit ad Indicana
Commercia Dissertatio 7 (Lodewijk Elzevir Publishers, London, 1609).
124 J.G. Starke, International Law 219 (Oxford University Press, New Delhi, 2011).
125 Ibid.
126 Ibid.
59
However, the general opposition to the bold attack of Grotius on

maritime sovereignty prevented the immediate victory of his theory.
The claims to sovereignty over certain parts of the open sea were too
firmly established for the novel principle of “Freedom of the Seas” to
supplant them, though some progress was made over the freedom of
navigation. By the second half of the seventeenth century, navigation
on all parts of the open sea was practically free for vessels of all
nations, but with regard to other points, claims to maritime sovereignty
continued. For example, in 1674, the Netherlands, by the treaty of
Westminster, acknowledged that their vessels must salute the British
flag within the British Seas, as recognition of British maritime
sovereignty.127
In spite of the opposition to his theory by the advocates of maritime
sovereignty, the work of Grotius did not fade into oblivion. Prominent
authors of International Law of the eighteenth century, such as
Bynkershoek, De Martens, Azuni and others followed his footsteps and
the principle of the freedom of the open sea was universally recognized
in theory as well as in practice by the end of the first quarter of the
nineteenth century.128 Perhaps, the more accurate expression was
‘freedoms’ rather than ‘freedom’ of the high seas, because apart from
the unrestricted liberty as to navigation and fisheries, the sea might be
freely used by all states for other purposes as well, such as scientific
research.129 In later times, the freedoms came to include the freedom of
immersion (the laying of submarine cables and oil pipelines) and the
free right of over flight for all aircrafts. However, these freedoms never
warranted a state of unregulated maritime lawlessness, and certain rules
for the exercise of jurisdiction over vessels at sea became essential in
order to avoid conditions of anarchy.130 As a measure of necessary
control, it was established that all vessels (public or private) on the high
seas were subject to the exclusive jurisdiction and were entitled to the
protection of the state under the maritime flag of which they sail. It was
also established that no state shall exercise jurisdiction over ships on
the high seas not bearing its flag, and that no ship shall sail under a
particular flag without the proper authority of the flag state. Vessels
sailing under an unauthorized flag were liable to capture and

128 Ibid.
129 Id., at 722.
130 Ibid.
60
confiscation by the state whose flag had been wrongfully raised.

Warships of any state could call on suspicious vessels to show their
flag. If there was reasonable suspicion for suspecting that a vessel was
engaged in Piracy or Slave Trade, it could be boarded, and if necessary,
searched.131
Subsequent centuries witnessed the growth of conventional laws of
the sea through the conclusion of many multilateral treaties, such as the
London Convention Concerning the Closing of the Dardanelles, 1841;
the London Convention for the Suppression of Slave Trade, 1841; the
Declaration of Paris Concerning War at Sea and for the Abolition of
Privateering, 1856, and so on.132
2.7 CUSTOMARY INTERNATIONAL LAW OF THE SEA

Throughout this period, customary international law was the
principal source of the law of sea. At this time, no international courts
or tribunals existed and maritime cases were chiefly dealt with by
national admiralty courts. Although they were national institutions, the
law applied by these courts was largely of an international character.
Sir Charles Hedges, a seventeenth century Judge of the English High
Court of Admiralty, made this clear in the case of Currie vs.
M’Knight,133 when he said that, “the Court of Admiralty is a Court of
Justice, and the judge who is sworn to administer it is as much obliged
to observe the laws of nations as the judges of the Courts of
Westminster are bound to proceed according to the statutes and the
common law”.134

133 (1896) 4 SLT 161.
134 Ibid.
61
In The Paquete Habana Case,135 the US Supreme Court traced the

history of prize jurisdiction from 1403 onwards, examining several
international treaties, the work of scholars, and prize court decisions of
various countries. The task of courts in determining the content of the
customary international law of the sea was by no means
straightforward. Judges were faced with a mass of evidence, often
contradictory, as to what the prevailing customs were. Needless to say,
the reliance on the claims and counter claims of States left much to be
desired in terms of the precise formulation of rules. The US Supreme
Court was faced with the question whether there was a rule of
international law prohibiting small coastal fishing vessels which were
flying the flag of an enemy state from being captured as prize.
Although the judges seemingly agreed on the material sources which
contribute to the formation of customary international law, they
profoundly disagreed on their assessments of the prevailing state
practice.136 The majority of the Court concluded that the available
135 (1899) 175 US Reports 677. In April 1898 two fishing vessels, the Paquete
Habana and the Lola, separately left Cuban ports in Havana in order to fish. The
two vessels were eventually captured by US Naval vessels as part of Admiral
William T. Sampson's blockade of Cuba, who was ordered to execute the
blockade in pursuance of the laws of the United States, and the law of
nations applicable to such cases. The vessels were placed within Cuba's
territorial waters at the onset of the Spanish- American War and then taken to
Key West, where both vessels were eventually auctioned by the District Court.
Both vessels were valued under the price of $2000 (US) and were thus not
originally thought to be exempt from seizure. Admiral Sampson justified the
seizure by stating that most fishing vessels, flying under the Spanish banner were
manned by excellent seamen, liable for further service as naval reserves; an asset
that could eventually be used against US interests in the Spanish-American War.
The owners of the vessels however made an appeal to the Circuit Court, citing a
long held tradition by nations of exempting fishing vessels from prize capture in
times of war. This tradition, a primary example of customary international law,
dates back from an order by King Henry IV in 1403, and has more or less been
observed by a large majority of States ever since. At the time of capture of both
vessels, there was no evidence of their aiding the enemy, and they were unaware
of the US naval blockade. No arms were found on board, and no attempts were
made to either run away from the blockade or to resist capture.
136 James Harrison, Evolution of the Law of the Sea: Developments in Law Making in
the Wake of the 1982 Law of the Sea Convention 18 (2007) (Unpublished Ph.D.
Thesis, University of Edinburgh). Available at:
https://www.era.lib.ed.ac.uk/bitstream/1842/3230/1/J%20Harrison,%20Evolutio
n%2 0of%20the%20Law%20of%20the%20Sea,%20PhD%20Thesis,%202008.pdf
(Visited on October 16, 2014).
62
evidence supported the existence of an exemption for small coastal

fishing vessels.137
Justice Gray, delivering the majority verdict, held that “coastal
fishing vessels with their cargoes and crews are excluded from prizes of
war. The doctrine that exempts coastal fishermen with their vessels and
crews from capture as prizes of war has been known by the United
States from the time of the American War of Independence and has
been recognized explicitly by the French and British governments. It is
an established rule of international law that coastal fishing vessels with
their equipment and supplies, cargoes and crews, unarmed and
honestly pursuing their peaceful calling of catching and bringing in
fish are exempt from capture as prizes of war”.138 A minority of the
Court, led by Chief Justice Fuller, dissented, arguing that the practice
was inconclusive and “in truth, the exemption of fishing craft is
essentially an act of grace, and not a matter of right and it is extended
or denied as the exigency is believed to demand”.139
A similar division over the conclusions to be drawn from State
practice can be seen in The SS Lotus Case (France vs. Turkey).140 In a
decision adopted by the casting vote of the President, the majority of
the Court denied the existence of a principle of international law
prohibiting Turkey from prosecuting the Master of a French vessel
137 Ibid.
138 Available at: http://www.casebriefs.com/blog/law/international-law/international-
law-keyed-to-damrosche/chapter-10/the-paquete-habana/2/ (Visited on October
16, 2014).
139 Supra note 54.
140 1927 PCIJ (Ser. A) No. 10 (September 7). The Lotus Case concerns a criminal
trial which was the result of the 2nd August 1926 collision between the SS Lotus,
a French steamship (or steamer), and the SS Boz-Kourt, a Turkish steamer, in a
region just north of Mytilene (Greece). As a result of the accident, eight Turkish
nationals aboard the Boz-Kourt drowned when the vessel was torn apart by
the Lotus. On 7th September 1927, the case was presented before the Permanent
Court of International Justice, the judicial branch of the League of Nations, the
predecessor of the United Nations. The issue at stake was Turkey's jurisdiction to
try Monsieur Demons, the French officer on watch duty at the time of the
collision. Since the collision occurred on the high seas, France claimed that the
state whose flag the vessel flew had exclusive jurisdiction over the matter.
France proffered case law, through which it attempted to show state practice in
support of its position. However, those cases involved ships that flew the flag of
the flag state and were thus easily distinguishable. The Court, therefore, rejected
France's position stating that there was no rule to that effect in international law.
63
which had collided with a Turkish ship on the high seas. The majority
of judges reasoned that “the applicable rules of customary
international law must be ascertained by examining precedents offering
a close analogy to the case under consideration; for it is only from
precedents of this nature that the existence of a general principle
applicable to the particular case may appear”. Yet, the evidence of
State practice was itself ambiguous and there were precedents pointing
in both directions. In the words of Judge Weiss, “the record of the case
demonstrates controversial doctrine and contradictory judicial
decisions invoked by both parties”. The actual result of the case largely
turns on the assumption made by the majority that States may exercise
jurisdiction unless there is a positive rule which prohibits such action.
As France was not able to adduce sufficient evidence of such a rule, its
arguments failed.141
The traditional techniques of deducing customary international law
also accorded a significant role to powerful maritime states. In The
Scotia Case,142 decided by the US Supreme Court in 1871, it was
observed that “many of the usages which prevail, and which have the
force of law, doubtlessly originated in the positive prescriptions of a
single state, which were first of limited effect, but which, when
generally accepted, became universal obligations”.143

142 (1871) 81 US Reports 170, at 187.
143 Available at: https://supreme.justia.com/cases/federal/us/81/170/case.html
(Visited on October 16, 2014). The Court described how the Merchant Shipping
Regulations promulgated by the British Government in January 1863 became
generally accepted and applied by all the major maritime States of the world and
therefore formed part of the international law of the sea. It can be seen from
these few illustrations that the traditional conceptions of customary international
law, as a means of regulating the activities of a large number of States, suffer
from a number of weaknesses. Firstly, divergences in State practice mean that it
is often difficult to identify the applicable law at any one time. The more States
there are, the more difficult the process. Perhaps one of the greatest weaknesses
of custom as a method of law making is the uncertainty which accompanies the
promulgation of new norms. Any evolution in an existing rule requires a breach
of that rule. Therefore, until a stable pattern of state practice has emerged, it is
impossible to predict the legality of a State’s actions. Secondly, it is also argued
that customary international law is unsuitable for the promulgation of detailed
rules or regulations in technical fields. Thus, Oxman rightly says that “because it
is so difficult to prove a level of State practice and opinio juris beyond
generalities, sometimes barely distinguishable from mere labels, customary
international law is a much more blunt instrument than written law”. However,
64
2.8 THE HAGUE CONFERENCE

By the 1920’s the League of Nations identified that the lack of
uniformity and the growing claims related to maritime territories
presented huge risks to peace and stability. Following the premise that
codification of International Law would help avoid conflict,
preparatory works commenced around 1924. The League called for a
conference for the progressive codification of international law in 1930,
in The Hague. The issue of territorial waters was taken into account and
finally dealt by the second commission of the conference. However,
due to the strong fragmentation of the 48 participating States’ position,
no agreement was reached with regards to the width of the territorial
sea. Nevertheless, the above evidenced that the so called “three mile
rule” was not a uniform rule at all. It is under these conditions that the
world entered the Second World War. 144
2.9 TRUMAN’S PROCLAMATIONS

On 28th September 1945, Harry S. Truman, President of the United
States of America, published Presidential Proclamations Number 2667
& 2668, the first one dealing with the Continental Shelf and the second
one with offshore fishing resources. The effect of the combined
interpretation of both proclamations by other states was the main thrust
for the change that the Law of the Sea experienced in the next decade.
Through the first proclamation, President Truman made a claim over
the offshore subsoil mineral resources beyond the three nautical miles
that the United States of America traditionally claimed as Territorial
Sea. This was seen as a sovereignty claim over the whole of the
continental shelf itself (and not just the resources) by the Latin
American countries and led to a wave of claims which were
inaugurated by Mexico (1945) and followed by Argentina and Panama
(1946), Costa Rica (1948), Honduras & Brazil (1950), Nicaragua (1961)
and Uruguay (1969), all based on the US assertion.145
It is also worth highlighting the claims made by the South Pacific
countries in 1947, namely the Chilean and Peruvian claims, which
reached to 200 nautical miles expressly and by 1952 gave way to the
cases like The Scotia Case would suggest that this assumption is not always
valid. It demonstrates the way in which written texts can inspire and influence
the formation of customary international law.
144 Supra note 6.
145 Ibid.
65
first treaty around that number, i.e., the South Pacific Permanent
Commission (or CPPS),146 being the main precedent to the Exclusive
Economic Zone figure that arose in the United Nations Convention on
the Law of the Sea (UNCLOS) in 1982. Several other national claims
were subsequently made, again concentrating in Latin America. A
number of important regional conferences dealt with the issues of the
different maritime claims regarding the Territorial Sea and the
Continental Shelf, as well as the emerging “epicontinental sea” or
“patrimonial sea”.147
2.10 CODIFICATION OF LAW OF THE SEA

The Law of the Sea was successfully codified for the first time at the
First United Nations Conference on Law of the Sea held at Geneva,
Switzerland, from 24th February to 27th April 1958. On the basis of draft
articles prepared by the International Law Commission, the Conference
adopted the following four Conventions-
I. The Convention on the Territorial Sea and the Contiguous Zone.
II. The Convention on the Continental Shelf.
III. The Convention on the High Seas.
IV. The Convention on Fishing and the Conservation of the Living
Resources of the High Seas.148
146 Since 1952, the Permanent Commission for the South Pacific (CPPS) is the
maritime organization that coordinates regional maritime policies in order to
adopt concerted positions of its Member States (Chile, Colombia, Ecuador and
Peru) in international negotiations, development of the Law of the Sea,
International Environmental Law and other multilateral initiatives. CPPS is
engaged in a capacity-building process at the national and regional levels in the
areas of science, socio-economic policy and the environment. The coastal and
marine ecosystems of the Southeast Pacific are exposed to a series of
anthropogenic pressures such a pollution, costal development, overexploitation
of some fisheries and illegal fishing among others, as well as pressures of natural
origin such as high environmental variability, and still unknown effects of
climate change and its impacts. All these are topics that must be addressed with a
systemic, regional and concerted approach. CPPS's strategic objectives include
strengthening science-based policy-making, and contributing to an informed
society with social and environmental responsibility. The area of competence of
CPPS extends to the territorial seas and EEZ’s of member countries, including
their islands in the Pacific.
147 Supra note 6.
66
The Convention on the High Seas stated that the term “high seas”
means “all parts of the sea that are not included in the territorial sea or
in the internal waters of a state”. However, this Conference left two
important questions unanswered, i.e. fishery limits and the breadth of
the territorial sea. After the conclusion of this Conference, the General
Assembly, by a resolution adopted on 10th December 1958, asked the
Secretary General of the United Nations to convene the Second United
Nations Conference on the Law of the Sea to consider these two
unsettled questions.149
As a result of this, the Second United Nations Conference on the
Law of the Sea was held at Geneva from 16th March to 26th April 1960.
At this Conference, a resolution was approved expressing the need for
technical assistance to fishing. However, it left the following important
matters unsettled-
I. The precise breadth of the territorial sea.
II. The rights of passage and over flight in relation to the waters of
archipelagos.
III. The problem of protection and conservation of marine resources
beyond the territorial sea.
IV. The question of innocent passage for warships at all times through
straits constituting an international maritime highway, and consisting
wholly of territorial waters.150
Nevertheless, it is important to mention here that the four
Conventions of 1958 provided a set of rules for the use of and rights to
the sea. Most of their provisions have been incorporated with minor
changes in the United Nations Convention on the Law of the Sea, 1982.
In 1965, the United Nations Conference on the Transit Trade of Land
Locked countries met at New York, USA, from 7th June to 8th July with
the participation of the representatives of 58 states. It adopted the
Convention on the Transit Trade of Land Locked countries.151
However, with the passage of time, the settlements achieved in the
four Conventions of 1958 proved to be inadequate in the context of
modern conditions. It was alleged that the rules as to fisheries unfairly
favoured the developed countries and disadvantaged the under
developed countries, that uncertainty surrounded the extent of the rights
of the coastal states over the resources of the Continental Shelf and
149 Ibid.
150 Id., at 228.
151 Ibid.
67
areas beyond shelf limits, and that land locked states had inadequate
access to the sea. It was clear that the four Conventions taken together
were not acceptable as a whole to all the states. Instead of ratifying or
acceding to all the four Conventions, many states opted to become
party to one or to some Conventions only, in a selective manner.152
In 1967, the first step towards the conclusion of the 1982 Convention
was taken when Mr. Arvid Pardo (the representative of Malta) pressed
for action to be taken by the United Nations to have deep seabed
resources beyond the Continental Shelf limits recognized as the
common heritage of mankind and to be developed in the interests of all
states with special regard to the needs of the developing countries. In
December 1968, the United Nations General Assembly adopted four
resolutions related to this matter, the most important of which declared
that the exploitation of the seabed and ocean floor beyond the limits of
national jurisdiction should be carried out for the benefit of mankind as
a whole. It also established a 42 member “Committee on the Peaceful
uses of the Seabed and Ocean Floor beyond the Limits of National
Jurisdiction”, to make recommendations upon the related questions.153
On 17th December 1970, two important resolutions were adopted by
the United Nations General Assembly. One of them declared the
principles governing the seabed and ocean floor and the subsoil thereof
beyond the limits of national jurisdiction. The other resolution
represented the decision to convene the Third United Nations
Conference on the Law of the Sea in 1973.154 This implied in fact, a
complete re opening of the settlements reached at the First and the
Second United Nations Conferences on the Law of the Sea, held at
Geneva in 1958 and 1960 respectively, with no sanctity for any of the
four Conventions adopted in 1958. The Seabed Committee was also
enlarged to an 86 member body, to serve in effect as a preparatory
committee for the Third United Nations Conference on the Law of the
Sea.155
152 Id., at 230.

153 Id., at 231.
154 Ibid.
155 Ibid.
68
2.11 UNITED NATIONS CONVENTION ON THE LAW OF

THE SEA, 1982
Following extensive preparatory work and the development of
important principles by the United Nations Seabed Committee, the first
session of the Third United Nations Conference on the Law of the Sea
was convened in New York from 3rd to 15th December 1973. Thereafter,
ten more sessions were held at New York till 1982.156 On 30th April
156 Supra note 3, at 251. At the first session, the Conference set up a General
Committee, three Main Committees, a Drafting Committee and a Credentials
Committee. During its second session, the Conference determined the
competence of the three Main Committees by allocating to the plenary or the
Committees the subjects and issues on the list prepared in accordance with
General Assembly resolution 2750 C (XXV) (A/CONF.62/ 29). The Conference
allocated to the First Committee the topic of the international regime of the sea-
bed and ocean floor beyond national jurisdiction, and to the Second Committee
the topics of the territorial sea, the contiguous zone, the continental shelf, the
exclusive economic zone, the high seas, land-locked countries, shelf-locked
States and States with narrow shelves or short coastlines and the transmission
from the high seas, while the topic of the preservation of the marine environment
was allocated to the Third Committee. All the main Committees, as far as the
topics were relevant to their mandates, were to deal with regional arrangements,
responsibility and liability for damage resulting from the use of the marine
environment, settlement of disputes, and the peaceful uses of the ocean space,
zones of peace and security. The latter, as well as the topic of enhancing the
universal participation of States in multilateral conventions relating to the law of
the sea, were to be considered directly by the plenary (A/CONF.62/29). At its
third session, at the request of the Conference, the Chairmen of the three Main
Committees each prepared an informal single negotiating text covering the
subjects entrusted to their respective Committees, which together constituted the
informal single negotiating text (A/CONF.62/WP.8, Parts I to III). At the
following session, revised texts on the settlement of disputes
(A/CONF.62/WP.9/Rev.l and Rev.2) as well as a revised single negotiating text
(A/CONF.62/WP.8 and Rev.1) were prepared. Thereafter, at its sixth session, the
Conference requested the President and the Chairmen of the Main Committees,
working under the President's leadership as a team with which the Chairman of
the Drafting Committee and the Rapporteur- General were associated, which was
subsequently referred to as "the Collegium", to prepare an informal composite
negotiating text (A/CONF.62/WP.10), covering the entire range of subjects and
issues contained in Parts I to IV of the revised single negotiating text. At its
seventh session, the Conference identified certain outstanding core issues and
established seven negotiating groups (A/CONF.62/62) for the purpose of
resolving these issues (A/CONF.62/RCNG.l and 2). Subsequently, during the
eighth session, a revision of the informal composite negotiating text was
prepared (A/CONF.62/WP.10/Rev.l). The Conference took the decision to
complete work on the Convention by 1980. During its ninth session, on the basis
69
1982, the Conference adopted the draft of the Convention on the Law of
the Sea by an overwhelming majority of 130 states. Four states (USA,
Israel, Turkey and Venezuela) voted against it and 17 states, including
the Soviet Union, Great Britain, West Germany and Italy abstained
from voting.157 It was also decided that the Convention would be signed
in September 1982. Later on, the signing was postponed till December.
The signing ceremony was held at Montego Bay, Jamaica, on 10th
December 1982, where 119 states finally signed the Convention.
However, it remained open for signature up to 9th December 1984. By
that time, 157 states had signed the Convention. Out of them, 135 states
were members of the United Nations. Four non member states which
signed the Convention were Cook Islands, European Community,
Namibia and Niue. Twenty two states, including the USA, Great
of the deliberations of the Conference (125th to 128th plenary meetings), the

Collegium undertook a second revision of the informal composite negotiating
text, presented as the informal composite negotiating text
(A/CONF.62/WP.10/Rev.2). Following the deliberations of the Conference at its
tenth and resumed tenth sessions (142nd to 155th plenary meetings), the
Collegium prepared a revision of the draft convention on the law of the sea
(A/CONF.62/L.78), which became the official draft convention of the
Conference, subject only to the specific conditions recorded in document
(A/CONF.62/114). At the eleventh session, on the basis of the deliberations of
the Conference (157th to 166th plenary meetings) concerning the report of the
President (A/CONF.62/L.86) and the reports of the Chairmen of the Main
Committees (A/CONF.62/L.87, L.91 and L.92) on the negotiations conducted by
them and the report of the Chairman of the Drafting Committee on its work
(A/CONF.62/L.85 and L.89), the Collegium issued a memorandum
(A/CONF.62/L.93) containing changes to be incorporated in the draft convention
on the law of the sea (A/CONF.62/L.78), and document (A/CONF.62/L.94)
setting out three draft resolutions and a draft decision of the Conference which
were to be adopted at the same time as the draft convention.
157 Ibid. Up to the 9th session, USA actively participated in the Conference and most
of the provisions of the draft Convention were agreed to by consensus. In the
10th session, USA informed the Conference that it would review the entire draft
Convention. After staying away for the whole of the year 1981, USA proposed
many amendments to the provisions which were already agreed to. These
amendments were rejected by 77 countries. As a result of this, USA did not sign
the Convention. However, it did not dissent from its provisions which do not
relate to the establishment of an International Seabed Authority and to control
over the exploitation of the resources of the seabed beyond the limits of national
jurisdiction (Part XI of the Convention). The USA has adopted the stance that
with the exception of Part XI, the other substantive rules of the Convention
represent customary international law.
70
Britain, West Germany and Japan did not sign the Convention.158 Thus
ended the longest ever Conference in the history of International
Law.159 According to Mr. TTB Koh, President of the Third United
Nations Conference on the Law of the Sea, following are the main
achievements of the United Nations Convention on the Law of the Sea-
I. The Convention would promote the maintenance of international
peace and security, because instead of a plethora of conflicting claims
by coastal states, there would be universally agreed limits on the
territorial sea, contiguous zone, continental shelf and exclusive
economic zone.160
II. International community’s interest in the freedom of navigation in
maritime waters would be facilitated by the important compromises in
the Convention on the status of the exclusive economic zone, by the
regime of innocent passage through the territorial sea, by the regime of
transit passage through straits used for international navigation and by
the regime of archipelagic sea lanes passage.161
III. The Convention contains new rules on marine scientific research
which strike an equitable balance between the interests of the states
conducting research and the interests of the coastal states in the
exclusive economic zones or continental shelves of which the research
is to be carried out.162
IV. International community’s interest in the peaceful settlement of
disputes and the prevention of the use of force for the settlement of
international disputes would be advanced by the mandatory system of
dispute settlement provided for in the Convention.163
V. Important provisions have been incorporated in the Convention for
the protection and preservation of the marine environment from
pollution.164
The United Nations Convention on the Law of the Sea (UNCLOS),
1982, comprises of 320 Articles (divided into XVII parts) and IX
Annexes. It is a very comprehensive document and covers almost every
aspect of the law of the sea. Article 308 of the Convention provides that
158 Ibid.
159 Ibid.
161 Ibid.
162 Ibid.
163 Ibid.
164 Ibid.
71
it shall enter into force 12 months after the date of deposit of the 60th
instrument of ratification. It obtained 60 ratifications with the
ratification by Guyana on 16th November 1993. Thus, it came into force
on 16th November 1994. India ratified the Convention on 29th June 1995.
By December 2015, 166 countries and the European Union have ratified
this Convention. Out of them, 163 states are members of the United
Nations. Three non member states who have ratified this Convention
are Cook Islands, Niue and Palestine.165 The Convention lays down
comprehensive rules for almost all parts and virtually all uses of the
oceans. Even before the convention came into force, a large part of it
had already become part of customary International Law.166
In the Case concerning the Continental Shelf of Libyan Arab
Jamhuriya/Malta,167 decided on 3rd June 1985, the International Court of
Justice held that “the two institutions, i.e., the continental shelf and the
exclusive economic zone are linked together in modern law.168 It was
further observed that since the rights enjoyed by a State over its
continental shelf would also be possessed by it over the sea bed and
subsoil of any exclusive economic zone which it might proclaim, one
of the relevant circumstances to be taken into account for the
delimitation of the continental shelf of the State is the legally
permissible extent of the exclusive economic zone appertaining to that
State. This does not mean that the concept of continental shelf has been
absorbed by that of the exclusive economic zone. It does however
signify that greater importance must be attributed to the element of
distance from the coast, which is common to both concepts. Although
the institutions of continental shelf and exclusive economic zone are
different and distinct, the rights which the exclusive economic zone
entails over the sea bed are defined by reference to the regime laid
down for the continental shelf. Although there can be a continental
165 Nineteen states that have not signed the Convention are Andorra, Azerbaijan,
Eritrea, Israel, Kazakhstan, Kosovo, Kyrgyzstan, Peru, San Marino, South
Sudan, Syria, Tajikistan, Taiwan, Turkey, Turkmenistan, Uzbekistan, USA,
Vatican City and Venezuela. Fourteen states that have signed the Convention but
have not ratified it are Afghanistan, Bhutan, Burundi, Cambodia, Central African
Republic, Colombia, El Salvador, Ethiopia, Iran, Libya, Liechtenstein, North
Korea, Rwanda and the United Arab Emirates.
167 1985, ICJ Reports, at 13.
168 Available at: http://www.icj-cij.org/docket/index.php? sum=353&p1=3&p2=3&case=68&p3=5
72
shelf where there is no exclusive economic zone, there cannot be an

exclusive economic zone without a corresponding continental shelf”.169
The Court rightly observed that, “it cannot be denied that the 1982
Convention is of major importance having been adopted by an
overwhelming majority of states. Hence, it is the duty of this Court even
independently of the reference made to the Convention by the parties,
to consider that in what degree any of its relevant provisions are
binding upon the parties as a rule of customary International Law”.170
Therefore, we can say that the United Nations Convention on the
Law of the Sea, 1982, is of great importance. It has modified the
political, economic and legal relationships of various countries in
countless ways. It has turned the dream of a comprehensive law for the
oceans into reality and is one of the greatest achievements of the
twentieth century in the subject of International Law.171
2.12 UNCLOS, 1982, AND THE USA

The USA is the only major State (being a Veto Power in the United
Nations as well as a great maritime power having the world’s largest Navy)
which has not signed the United Nations Convention on The Law of the Sea,
1982, as it is opposed to Part XI of the Convention dealing with Deep Sea Bed
Mining. However, the Convention having become a part of customary
international law, applies to all the States of the world, irrespective of the fact
whether they have signed it or not. On 30th May 2014, the US President
Barack Obama criticized the US Senate for its continued failure to ratify the
Law of the Sea Convention. He observed that “we cannot exempt ourselves
from the rules that apply to everyone. It’s a lot harder to call on China to
resolve its maritime disputes under the Law of the Sea Convention when the
United States Senate has refused to ratify it despite the repeated insistence of
our top military leaders that the treaty advances our national security”.172
169 Ibid.
170 Ibid.
172 Available at: http://www.philstar.com/headlines/2014/05/30/1329020/obama-
calls- us-senate-ratify-unclos (Visited on October 16, 2014). Barack Obama made
this observation at a commencement address to graduates at the US Military
Academy in West Point, New York.
73
CHAPTER - III:
PIRACY AT SEA: HISTORICAL
PERSPECTIVE
“In an honest service there are commonly low wages and hard
labour; in piracy, satiety, pleasure, ease, liberty and power. A merry
life and a short one shall be my motto”.
Captain Bartholomew Roberts, aka Black Bart 173

To write a complete history of piracy from its earliest days is a
daunting task. It might begin to resemble a maritime history of the
world. Therefore, what this chapter attempts to do is to show what
conditions, geographical and social, preceded the rise of piracy, to trace
its periodical rises and declines, its forms and fortunes and to depict the
most notorious members of the profession. Piracy, like murder, is one
of the earliest of the recorded human activities.174 It has existed ever
since the beginning of maritime transport and trade.175 Trade follows
the flag and robbery whether by land or by sea, follows trade. Captain
Henry Keppel, the great hunter of oriental pirates in the nineteenth
century, had once remarked that, “as surely as spiders abound where
there are nooks and crannies, so have pirates sprung up wherever there
is a nest of islands offering creeks and shallows, headlands, rocks and
reefs, in short, facilities for lurking, surprise, attack and escape”.176
In all the Seas of the world and at all times, piracy has passed
through certain well defined cycles. First a few individuals from
amongst the inhabitants of the poorer coastal lands would band together
173 Notorious Pirate in the seventeenth century. E. Keble Chatterton, The Romance of
Piracy: The Story of the Adventures, Fights and Deeds of Daring of Pirates,
Filibusters and Buccaneers from the Earliest Times to the Present Day 183
(Seeley Publishers, London, 1914).
174 Philip Gosse, The History of Piracy 1 (Dover Publications, New York, 2007).
175 The earliest recorded incident of piracy occurred during the reign of Egyptian
Pharaoh Akhenaton. It is inscribed on a clay plate and depicts pirates attacking a
ship in the year 1350 BC.
176 Supra note 2.
in isolated groups owning one or but a very few vessels apiece and
attack only the weakest of all merchantmen.177 They possessed the
status of outlaws whom every law abiding man was willing and eager
to kill at sight. Next would come the period of organisation, when the
big pirates either swallowed up the little pirates or drove them out of
business. These great organisations moved on such a scale that no
group of trading ships, even the most heavily armed, was safe from
their attack.178 Of this sort was the era of the Barbary Corsairs, of Henry
Morgan and his Buccaneers and of the wild west country seamen
during the reign of Queen Elizabeth I.179 These were the pirates against
whom competition was hopeless and authority powerless. Then came
the stage when the pirate organisation, having virtually reached the
status of an independent State, was in a position to make a mutually
useful alliance with another State against the enemies. What had been
piracy, then for a time became war, and in that war the vessels of both
sides were pirates to each other and subject to the same treatment. In
the end, the victory of one side would as a rule break up the naval
organization of the other. The component parts of the defeated side
would be again reduced to the position of outlaws bands, until the
victorious power was strong enough to send them scurrying back once
more to the status of furtive footpads of the sea whence they had
arisen.180
Piracy at its greatest moments becomes a major part of history itself.
But even in its lesser phases there is a fascination that is peculiarly its
177 Ibid.
178 Ibid.
179 “Pirates” were those outlaws who committed acts of robbery or criminal violence
at sea outside any particular jurisdiction and were not acting under the order of
any Government. “Privateers” were private persons who were authorized by a
Government through letters of marque to attack and plunder enemy ships during
wartime. They were entitled to a share in whatever treasure they captured.
“Corsairs” were privateers who were authorized by the French crown through
letters of marque to conduct raids on the ships of a nation at war with France.
The Corsair Captain was entitled to a share in the cargo captured by him. The
Barbary pirates of North Africa as well as the Ottomans were sometimes called
“Turkish Corsairs”. “Buccaneers” were pirates of English, Dutch and French
descent who attacked Spanish ships in the Caribbean Sea during the seventeenth
century.
76
own, for it is crime of a very special sort, demanding of its followers

much more than boldness, cunning nature or skill in the use of arms.181
3.2 PIRACY IN THE ANCIENT ERA (UP TO 500 AD)

Throughout its history, the Mediterranean Sea has witnessed a
constant struggle between the civilized people dwelling on its coasts
and the barbarians, between the peaceful traders using its highways and
the pirates who infested the routes that the traders must follow. At
different stages of their history, most of the maritime people have
belonged now to one class and now to the other. From the time when
men first went down to the sea in ships, piracy has been regarded as
one of the means of livelihood that the sea offered. The earliest
literature of Greece shows us the Homeric pirates pursing a mode of
life at sea almost identical with that of the French corsairs of the
seventeenth century. Perhaps the only time when the whole
Mediterranean area has been free from piracy was during the early
centuries of the Roman Empire. If we remember that piracy was a
normal feature of Mediterranean life, it will be realised how great has
been the influence which it exercised on the life of the ancient world.182
3.2.1 Origin and Causes: In the ancient era, piracy originated and
flourished in the Mediterranean Sea. A number of geographic and
economic factors produced an environment practically necessitating
piracy. The coasts of the Mediterranean were peculiarly favourable to
the development of piracy. The shore line was rocky, barren, and not
suitable for large scale agriculture and could not support a large
population. Therefore, most villages were small and of humble means.
In localities such as the Cilician, Ligurian and Illyrian coasts, piracy
was endemic. Being coastal villages, their primary method of support
came from fishing. Therefore, most of the able bodied men had boats,
seafaring skills and navigational knowledge. Navigation came easily to
them on the land locked bays and creeks of their native shores. The
sterility of their land had forced many of them to become hunters and
brigands rather than agriculturists. When fishing wasn’t enough, the
same pursuits were followed on the sea as well.183
181 Ibid.
182 Henry A. Ormerod, Piracy in the Ancient World 13-14 (The John Hopkins
University Press, London, 1997).
183 Ibid.
77
In addition to the natural allurements which drew the robber tribes to

the sea, the features of Mediterranean lands were such as to make the
pirates business a particularly profitable one. We may leave aside for
the moment the economic conditions which promoted piracy, and
consider only the geographical. The structures (laws) of most
Mediterranean countries had decreed that the principal lines of
communication should be by sea and that the bulk of commerce should
be carried by the same routes. This was so because navigable rivers
were few and the interposition of mountainous barriers rendered the
land routes difficult and dangerous. However, if the sea invites, it also
imposes certain limitations. In the early days of maritime navigation the
trade vessels were forced to hug the shores. Maritime traffic was
restricted to fixed lanes and the ship owning merchantman moved
slowly along established trade routes with their heavy burden weighing
them down. Imagine a fisherman raider seeing treasure laden ships
passing the shores he knows like no one else does, day after day. With
the motivation and the means to do so, it wasn’t hard for coastal natives
to apply themselves to sea robbery. They applied a robber’s mindset to
the sea and simply changed their methods of robbery. The pirate was a
robber of the sea highways and the highways of the Mediterranean
were well defined and well travelled.184
3.2.2 Early period

The early fishermen raiders were the first true pirates who attacked
anyone of any nationality, owing loyalty to no one. Because of their
roots in land raiding, pirates were known not only to attack ships and
coastal towns but also to venture further inland. This forced even the
earliest large cities to relocate anywhere between two to ten miles away
from the shore. This relocation gave a relatively effective cushion of
safety to major cities such as Rome, Athens, Tiryns, Mycenae and
others. It protected them from the dangers of the sea, but it also cut
them off from its benefits. The sea was still the primary, and practically
the only mode of trade and commerce. This caused twin cities to be
built, i.e., one inland city paired with a coastal city, such as Rome and
Ostia, Athens and Piraeus etc.185 Despite these efforts, they could not
completely restrict the pirates in their endeavour to plunder the ships
184 Id., at 15
185 Available at: http://en.wikipedia.org/wiki/AncientMediterraneanPiracy (Visited
on February 8, 2014).
78
and the ports. Since they could not effectively disrupt the pirates’
business, it continued to grow. Many men often joined the very pirate
ships that attacked their own towns. Even the sailors on merchant ships
attacked by pirates, turned to piracy themselves when they were out of
work. Piracy offered a free and lucrative career, a golden chance to
those who were interested to try to change their lives and better their
livelihood a hundredfold in a very short time. If a city had a successful
slave market, it was most likely to be a pirate port. Notorious pirate
havens like Cilicia and Delos had thriving slave markets. Being
kidnapped by pirates and sold into slavery was so common that is was
the favourite theme of ancient Greek dramatists.186
3.2.3 Pirate Groups and Organisations

As piracy expanded, pirates began to organize themselves differently
from common brigands, who were bands of mixed nationalities loyal to
none but to themselves. The pirate articles, which structured them
democratically, were derived from ancient seafaring traditions.187 Over
a period of time this diverse group came to be known collectively as the
“Sea Peoples”.188 They are particularly well known for their clashes
with the Egyptians, who called them the “Nine Bows”. It is believed
that many of them were Egyptian subordinates, particularly the escaped
Hebrews, who are thought to be the group referred to in the ancient
source as the “Habiru”. Other possible members include “Tjeker
People” out of Crete City, who left to settle in Anatolia city, the seat of
the Hittite Empire, which is known to have clashed with the Egyptians.
Two of the earliest groups to be mentioned in connection with the “Sea
Peoples” are the “Lukka” and the “Sherden”. They are mentioned in the
Amarna letters, a series of 362 clay correspondence tablets from the
King of Babylon to Pharaoh Amenhotep about the fact that these sea
raiders were beginning not just to plunder ships but capture towns as
well.189
A lot of early information about the spread of piracy comes from
Egyptian sources because they were so well documented on non
perishable materials like clay plates and sandstone temples. Also,
186 Ibid.
187 Ibid.
188 They were always referred to in the plural, not just as the “Sea People” because
they were made up of diverse sets of people.
189 Supra note 13.
79
Egypt’s dominance as a sea power during this time made its ships an
obvious target. Most of the knowledge about the “Sea Peoples” comes
from the King Ramesses III, who reigned during the early twelfth
century BC. Many of his campaigns are recorded on the walls of his
mortuary temple, the “Medinet Habu”, as well as on numerous obelisks
and large stone monuments, chronicling his battles with the “Sea
Peoples”. It is believed that the simulations destruction of the Hittite,
Mycenaean and Mitanni Kingdoms around the year 1175 BC were a
result, at least in the part, of the repeated attacks of the “Sea Peoples”.
One inscription from the year 1190 BC describes a great victory of
Ramesses III over the “Nine Bows”, whom he took hostages. However,
there is evidence that he later hired them as mercenaries. In fact, they
were so widely employed as extra legal forces that there seemed to be
no real distinction between a pirate and a mercenary.190
In ancient Greece, piracy was widespread and was widely regarded
as an entirely honourable way of making a living. Many Greek texts are
actually quite sympathetic to piracy and even condone it. As
communication by sea became more common, many coastal natives
were tempted to turn pirate. Piracy came to be the main source of their
livelihood, no disgrace being attached to such an achievement, but
some glory. Plutarch (46 AD - 120 AD), a famous Greek jurist and
philosopher of that era had aptly remarked that, “Piracy had become
not just an occupation of poor and desperate men forced into it by
necessity, but rather a glorious expedition taken on by those already of
high status, seeking further advancement. Men whose wealth gave them
power, whose lineage was illustrious and those who laid claim to
superior intelligence, began to embark on piratical craft and share
their enterprises, feeling that the occupation brought them a certain
reputation and distinction”.191
Saint Augustine recounts an exchange between Alexander and a
captured pirate in the following words:
“For when the King had asked the man what he meant by keeping
hostile possession of the sea, he answered with bold pride: what thou
meanest by seizing the whole Earth; but because I do it with a petty
ship, I am called a robber, whilst thou who dost it with a great fleet art
styled emperor”.192
190 Ibid.
191 Ibid.
192 Ibid.
80
3.2.4 Pirate Vessels and Seamanship

The pirate vessels were quite small, only large enough to hold the
number of ruffians required to surprise the crew of a merchant ship and
catch them off their guard.193 In their small vessels the pirates would
attack merchantmen at sea or sail to raid the neighbouring coasts,
where the boats were left in the marshes, while the pirates wandered
through the district in search of prey. Pirates always preferred light
weight ships as they gave them the speed necessary to attack as well as
to escape. When pursued by the heavier warships of the maritime
powers, the pirates could easily escape by entering shallow waters.
Even if they were forced ashore, they could save their ship by means of
portage. In most cases, the would be pirate was content with the first
ship that came into his hands by theft or by purchase.194
3.2.5 Piracy in the Roman Period

During this period, piracy spread like plague, but was particularly
endemic in certain areas like Cilicia (south eastern Turkey) and Illyria
(western Balkans). With the passage of time, Illyrians became so
powerful that by the year 230 BC, no honest traders wished to
participate in maritime trade and commerce. But Rome paid little
attention to what it initially considered a rag tag of amateur brigands
harassing a few merchants, partly because the Empire’s strength laid in
its land bound forces.195 However, when Illyrian pirates attacked a
convoy of ships laden with foodgrains intended for the military, the
Roman Senate decided to send two envoys to Queen Teuta (Queen of
the Illyrians), who promptly executed one of them. Outraged by her act,
the Romans decided to take military action. Consul Gnaeus Fulvius
sailed for Illyria with 200 ships, while Consul Aulus Postumius and
20,000 soldiers marched overland. By the year 228 BC, Queen Teuta
193 In the Black Sea, pirates used a special boat, named the “Camara”, which was
capable of carrying 25 to 30 men. It was so light that it could easily be lifted from
water and hidden in the scrub.
194 Supra note 10, at 26. Some types of vessels were named after particular
communities such as the Samaina of Samos, the Lembus, Pristis and Liburna,
which originated among the tribes of the Illyrian coasts. The latter designs were
widely imitated by the shipbuilders of the naval powers and were much
employed in the regular navies from the third century onwards. Even the two
vessels, i.e. the Hemiola and Myoparo, which in the Roman times were closely
associated with the pirates, were widely used by others also.
195 Supra note 13.
81
had surrendered and the Romans had decimated the forces of one of the
most notorious pirate havens in the Mediterranean. By this point,
pirates no were longer looked with anything but fear, distrust and
hatred. It was the Romans who declared them “communes hostes
gentium” or enemies of all mankind.196
With the ports becoming less friendly, pirates became more brazen,
attacking anyone and everyone to protect themselves. Slave markets
dwindled as their primary suppliers were now outlawed. Therefore,
instead of selling their captives into slavery, pirates discovered that it
was not only easier but far more profitable to hold them for ransom.
They came to learn that the higher the status of a person kidnapped and
the more prominent his or her family, the higher would be the price for
his safe return.197 This may have been what Cilician pirates were
thinking when in the year 78 BC they attacked a Roman convoy of
ships bound for Rhodes (one of Rome’s allies and famous for
upholding a zero tolerance policy towards pirates).198 In the year 67 BC,
Rome’s port of Ostia was set on fire and two prominent Roman
senators were kidnapped by the Cilician pirates. Until this point,
Romans secretly tolerated piracy and pirates, particularly the Cilicians,
because of its demand for slaves. But the ransoming had finally gone
too far.199 Their seizure of persons in high command and their
ransoming of captured cities were a disgrace to the supremacy of the
mighty Roman Empire. Therefore, the Romans decided to take military
action to completely annihilate the pirates.200 The Lex Gabinia or
Gabinian Law, granted the 38 year old Pompeius, the best solider in
Rome and better known as “Pompey the Great”, with unprecedented
196 Ibid.
197 Ibid.
198 On board was a young 25 year old named Julius Caesar, who apparently sat and
read while his fellow passengers cowered before the sea robbers. When the pirate
captain demanded a ransom of 20 talents (a form of currency in vogue during
that era), Caesar laughed at him for underestimating his value and voluntarily
offered 50 talents. When the ransom was delivered, Caesar and his companions
were released. After his release, he immediately gathered four ships and 500
soldiers and returned to the place where the Cilician fleet was still docked. In the
ensuing battle, more than 350 pirates were captured and the ransom was
reclaimed from them. However, this was not the end of Cilician pirates.
199 Supra note 13.
200 Ibid.
82
authority to crush pirates.201 He alone held total control of the

Mediterranean, from the sea to 50 miles inland. He divided his fleet into
13 squadrons and uprooted the last remaining pirate strongholds in the
Mediterranean, including Cilician, Crete and Delos. Historical
documents record that Pompeius captured at least 400 pirate ships and
destroyed more than 1000 others. He accomplished this remarkable feat
in just three months.202
Pompeius was not only a skilled solider but also an intelligent
student of history. Instead of trying to wipe out every last pirate, he
tried to change their way of life. Ten thousand pirates died in the battle
and twice that number surrendered, as surrender was met not only with
pardon but also with reward. He was determined to transform these
pirates from sea to land and give them a taste of honest and innocent
course of life by living in towns and tilling the ground. Thus, he
transformed the pirates into agriculturists. In this way, the descendants
of the first Mediterranean pirates were back to where their ancestors
had started their journey. Out of all the attempts to curb piracy, this was
the most successful. The resulting Pax Romana enabled the
Mediterranean to experience several centuries of peace and safety. But
piracy is cyclical in nature. It can never be fully extinguished, merely
postponed. The fall of the Roman Empire in the year 476 AD marked a
renewal of piratical activities in the Mediterranean, which continued to
grow through the middle ages.203
3.3 PIRACY IN THE MEDIEVAL ERA (FROM 500 AD TO

1850 AD)
During this era, piracy flourished mainly in the Caribbean Sea and
the Mediterranean Sea. However, pirates were also active on the
English, American, Africa and Asian coasts. The first great era of
medieval piracy originated at some vague time in the Middle Ages,204
reached its climax in the sixteenth and seventeenth centuries and was
201 Pompey was given unlimited access to the Roman treasury, 500 ships, 1,20,000
infantry and 5000 cavalry.
202 Supra note 13.
203 Ibid.
204 In European history, the Middle Ages is the period between the end of the Roman
Empire in the year 476 AD and 1500 AD, especially the later part of this period.
83
effectively halted by concerted international efforts only about 200

years ago.205
3.3.1 Piracy in the Caribbean Sea and Islands

Piracy in the Caribbean began in the sixteenth century and died out
in the 1830’s after the Navies of the Western European and North
American countries began combating pirates. The exploits of the
Caribbean pirates started in the year 1523 AD, when Jean Fleury seized
two Spanish treasure ships carrying treasure from Mexico to Spain.
Caribbean piracy arose out of the conflicts over trade and colonization
among the rival European powers of that time, including the Empires of
Britain, Spain, Netherlands, Portugal and France. Apart from that, life
was quite hard on a merchant vessel and petty sailors were often ill
treated by superior officers. These ill treated sailors turned to piracy for
a dignified living. Most of the pirates of this era were of English, Dutch
and French origin. As most of the Caribbean islands were controlled by
Spain, most of the ships and cities attacked by pirates belonged to the
Spanish Empire.206 The late seventeenth and the early eighteenth
centuries (particularly the period between the years 1650 AD to 1730
AD) are often considered the “Golden Age of Piracy” in the
Caribbean.207 The modern conception of pirates as depicted in popular
culture is derived largely from the Golden Age of Piracy. However, the

206 Available at: http://en.wikipedia.org/wiki/PiracyintheCaribbean (Visited on
February 12, 2014).
207 In its broadest accepted definition, the Golden Age of piracy covers three separate
outbursts of piracy, i.e.,–
I. The buccaneering period of approximately 1650 AD to 1680 AD, characterized
by Anglo-French seamen based in Jamaica and Tortuga, attacking Spanish ships
and colonies in the Caribbean sea and the eastern Pacific Ocean;
II. The pirate round of 1690’s, associated with long distance voyages from Bermuda
and the Americas to rob the ships of the Mughal Emperor and East India
Company in the Red sea and the Indian Ocean; and
III. The post Spanish succession period, extending from 1716 AD to 1726 AD, when
Anglo American Sailors and privateers who were left unemployed by the end of
the war of the Spanish succession turned to piracy in the Caribbean, the East
American Coast, the West African Coast and the Indian Ocean.
84
term Golden Age of Piracy is an invention of historians and was never

used by anyone who lived through the period that the name denotes.208
Sea robbers of this era were divided into four major categories, i.e.,
pirates, privateers, corsairs and buccaneers.209 Piracy in the Caribbean
declined after 1730 AD. However, throughout the first quarter of the
nineteenth century, the United States Navy repeatedly engaged pirates
in the Caribbean Sea and the Gulf of Mexico. Several warships of the
US Navy were designed specifically for this task. As a result of this,
piracy in the Caribbean died out completely by the end of 1830 AD.210
3.3.1.1 Pirates of this era

Most of the well known and notorious pirates in history lived during
the medieval era. Some of them are mentioned here under-
I. Sir Henry Morgan, who was an Admiral of the English Royal Navy,
a privateer, a buccaneer and a pirate. He fought England’s enemies for
30 years and became a very wealthy man in the course of his
adventures. His most famous exploit came in the year 1670 AD, when
he led 1700 buccaneers to attack and capture the impregnable city of
Panama. Although the seizure of Panama did not provide any great
financial gain to Morgan, it was a huge blow to the Spanish power and
pride in the Caribbean and he became the hero of the hour in England.
At the height of his career he was knighted by the English crown and
was designated as the Lieutenant Governor of Jamaica. He died in his
bed in 1688 AD, rich and respected, something rarely achieved by
pirates of his day or any other.211
II. Jean Fleury, who was a sixteenth century French Naval Officer, a
corsair, a privateer and a pirate. He is best remembered for capturing
two out of the three Spanish treasure ships carrying the Aztec treasure
from Mexico to Spain in the year 1523 AD. He was eventually captured
by the Spanish and was hanged in the year 1527 AD.212
208 Available at: http://en.wikipedia.org/wiki/GoldenAgeofPiracy (Visited on

February 12, 2014).
209 For the definition of these terms, see Supra note 7.
210 Supra note 34.
211 Available at:
http://en.wikipedia.org/wiki/Piracy_in_the_Caribbean#Henry_Morgan (Visited
on March 13, 2014).
212 Available at: http://en.wikipedia.org/wiki/Jean_Fleury (Visited on March 13,
2014).
85
III. Edward Teach, more commonly known as “Blackbeard” was a

notorious English pirate who operated around the West Indies and the
eastern coast of America during the early part of the seventeenth
century. His nickname was derived from his thick black beard and
fearsome appearance. In the year 1716 AD, he captured a French
merchant vessel named “Queen Anne”, renamed her “Queen Anne’s
Revenge” and equipped her with 40 guns. Through his exploits he
attracted the attention of Alexander Spotswood, the Governor of
Virginia, who arranged for a party of soldiers and sailors to capture
him. In a ferocious battle which ensured, Blackbeard and several of his
crew members were killed by Lieutenant Robert Maynard. He was
romanticised after his death and became the inspiration for a number of
pirate themed works of fiction across a range of genres.213
IV. Francois Le Clerc, also known as “Peg Leg” was a sixteenth
century French privateer and pirate. He is credited as the first pirate
ever to have a “Peg Leg”, i.e., an artificial wooden leg. He was often
the first amongst his crew to board an enemy vessel during an attack or
raid. He seized Santiago in 1554 AD, occupied it for a month and
returned with 80,000 pesos in treasure. Cuba’s first capital was so
completely devastated that it was soon completely eclipsed by Havana
(the modern Capital) and never recovered its former prosperity. He was
killed in 1563 AD while hunting down Spanish treasure ships near the
Azores Islands.214
V. Henry Every, alias John Every, also known as “Long Ben” was
famous for being one of the few major pirate captains to retire with his
loot without being ever arrested or killed in battle. He became
renowned by capturing the fabulously wealthy Mughal ship named
“Ganj-e-Sawai” in 1694 AD. Although Every’s career as a pirate lasted
only two years, his exploits captured the public's imagination, inspired
others to take up piracy, and spawned numerous works of literature.215
VI. William Kidd, also known as “Captain Kidd”, was famous for his
exploits in the Indian Ocean in the 1690’s. He was hanged at the
Execution Dock, London in 1701 AD for his piratical acts. His body
213 Available at: http://en.wikipedia.org/wiki/Blackbeard (Visited on March 13,

2014).
214 Available at: http://en.wikipedia.org/wiki/Fran%C3%A7ois_Le_Clerc (Visited on
March 13, 2014).
215 Available at: http://en.wikipedia.org/wiki/Henry_Every (Visited on March 13,
2014).
86
was kept suspended on the gallows in an iron cage for three years to
deter other pirates. He is famous for the buried treasure he is supposed
to have left behind.216
VII. Bartholomew Roberts, also known as “Black Bart”, is considered
by many historians as the most successful pirate of all time. Black Bart
was successful in sinking, capturing and pillaging over 400 ships. He
started his freebooting career in the Gulf of Guinea in February 1719
AD when some pirates captured his ship and he proceeded to join them.
Rising to the rank of captain, he quickly came to the Caribbean and
plagued the area until 1722 AD. He commanded a number of large,
powerfully armed ships, all of which he named Fortune, Good Fortune,
or Royal Fortune. Aboard his vessels the political atmosphere was a
form of democracy that depended on participation; in which was a rule
that everyone aboard his ship had to vote on issues that arose. He was
killed off the coast of Africa in 1722 AD where he met his death in a
naval battle, whereby his crew was captured and hanged.217
VIII. The best known female pirates were Anne Bonny and Mary
Read. Both of them spent their brief sea roving careers under the
command of Calico Jack Rackham, a notorious pirate. Both of them
were tried for piracy by a Spanish Court along with Rackham and his
crew. Rackham and his crew were hanged. When the judge was about
to pronounce death sentence on both of them, they pleaded their bellies,
i.e., they declared their pregnancy. The judge immediately postponed
their death sentence. Mary Read died in prison before the birth of her
child. There is no record of Anne Bonny being executed. It was
rumoured that her wealthy father paid a ransom to take her home. Other
accounts of what happened to her include that she returned to piracy or
became a nun.218
IX. John Rackham, commonly known as Calico Jack Rackham, was an
English pirate Captain operating in the Bahamas and Cuba during the
early eighteenth century. Rackham is most remembered for two things:
216 Available at: http://en.wikipedia.org/wiki/William_Kidd (Visited on March 13,

2014).
217 Available at:
http://en.wikipedia.org/wiki/Piracy_in_the_Caribbean#Bartholomew_Roberts
(Visited on March 13, 2014).
218 Available at:
http://en.wikipedia.org/wiki/Piracy_in_the_Caribbean#Anne_Bonny_and_Mary_
Rea d (Visited on March 13, 2014).
87
the design of his Jolly Roger flag (a skull with crossed swords on black
background), which contributed to the popularization of the design, and
for having two female crew members (Mary Read and Rackham's lover
Anne Bonny). He was captured and hanged in Jamaica in 1720 AD.
Rackham's body was then gibbeted on display on a very small islet at a
main entrance to Port Royal, now known as Rackham’s Cay.219
X. Stede Bonnet was an early eighteenth century Barbadian pirate,
sometimes called “The Gentleman Pirate” because he was a moderately
wealthy landowner before turning to a life of crime. In 1717 AD, he
decided to become a pirate, despite having no knowledge of shipboard
life. He contracted a local shipyard to build him a sixty ton sloop,
which he equipped with six guns and named “The Revenge”. This was
unusual, as most pirates seized their ships by mutiny or boarding, or
else converted a privateer vessel to a pirate ship.220 Bonnet enlisted a
crew of more than seventy men. In another break from tradition,
Bonnet paid his crew wages, not shares of plunder as most pirates did.
His career as a pirate lasted only one year as he was captured and
eventually hanged at Charleston, USA, in December 1718 AD.221
3.3.1.2 The Richest Pirates

Some pirates made enormous wealth by their piratical activities. The
top 20 Pirates (in terms of wealth earned by piracy) are mentioned
hereunder-
Pirate Wealth (2008 dollars)
Samuel “Black Sam” Bellamy $120 million
Sir Francis Drake $115 million
Thomas Tew $103 million
John Bowen $40 million
Bartholomew “Black Bart” Roberts $32 million
Jean Fleury $31.5 million
Thomas White $16 million
219 Available at: http://en.wikipedia.org/wiki/Calico_Jack (Visited on March 13,

2014).
220 Available at: http://en.wikipedia.org/wiki/Stede_Bonnet (Visited on March 13,
2014).
221 Ibid.
88
John Halsey $13 million

Henry Morgan $13 million
Edward “Blackbeard” Teach $12.5 million
Samuel Burgess $9.5 million
Edward England $8 million
Francois le Clerc $7.5 million
Howell Davis $4.5 million
Stede Bonnet $4.5 million
Richard Worley $3.5 million
Charles Vane $2.3 million
Edward Low $1.8 million
John Rackam $1.5 million
James Martel $1.5 million 222
3.3.1.3 Pirate Code and Democracy

It might appear incongruous, but the pirates who brutalized their
captives and who scoffed at the rules of society, were passionately
democratic. They had a high regard for individual rights and a burning
hatred for the tyranny that had oppressed them in their days of “honest
service” on board merchant vessels and Royal Navy ships. Unlike
privateer crews, who were still only hired hands despite the fact that
they received fair shares of their ship’s plunder, pirates regarded
themselves as self-employed and collective owners of their own ships.
They believed that since the crew of a pirate ship had acquired their
vessel by common effort, all should participate equally in making
decisions aboard her. For this reason, pirates evolved a system that
called for virtually all matters regarding life aboard their ship, whether
to fight, where and when to anchor, division of spoils, even courses to
be followed, to be subjected to a referendum, with each man, regardless
of his rank, race, religion, or previous employment, entitled to an equal
222 Available at: http://www.forbes.com/2008/09/18/top-earning-pirates-biz-

logistics- cx_mw_0919piracy.html (Visited on March 13, 2014).
89
vote in the decision, as well as an equal right to voice his opinion. Only
during battle did the pirates abandon this referendum system.223
So pervasive was this insistence on individual rights and so fearful
were pirates of placing too much authority in the hands of any man,
that they even elected their captains and other high ranking officers,
retaining the right to depose them by vote whenever they wished. The
pirate system of democracy, bordering on anarchy, also required the
elimination of all marks of distinction aboard ship. Officers wore no
special uniforms and had no special privileges. Pirates regarded such
perquisites, common aboard “honest ships”, as hateful reminders of
upper class despotism which most of them had to endure in their
previous employment. They would permit none of it aboard their own
ships.224 For example, even though the Captain was usually permitted a
cabin of his own, as a mark of his crew’s esteem, he could not claim
exclusive use of it. Crewmen could enter anytime they wished, and they
could make use of any of the captain’s furnishings as well, including
dishes and cutlery. While the chance to win a treasure usually supplied
the initial and immediate lure that attracted honest seamen to piracy, an
objective examination of the lives actually led by pirates makes it clear
that the real lure was the chance that piracy offered to ordinary sailors
to live as free men. In a world that permitted personal liberty only to
the well born and the wealthy and tyrannized cruelly over the poor, the
pirate brotherhood offered the common seamen a passage to liberty and
self respect, provided he possessed the courage to defy the law that
would punish him severely if he was caught. Most pirates, though
simple men, realized full well that the key to the free life they wanted
was their system of democratic decision making.225
To ensure that democracy would prevail among them, almost all
pirate crews subscribed to specific rules of behaviour, which they
embodied in “Ship’s Articles” (covenants that were, in effect, rough
Constitutions that spelled out the rights, duties, and powers of a ship’s
officers and crew). Every officer and crew member aboard a ship had to
swear on a copy of the Holy Bible to abide by these articles. Although
the articles might differ in various particulars from ship to ship, their
general aim was always to safeguard individual liberties, especially the
223 Frank Sherry, Raiders and Rebels: A History of the Golden Age of Piracy 122
(Harper Collins Publishers, New York, 2007).
224 Id., at 123.
225 Ibid.
90
right of each crew member to a trial by his peers and an equal voice in
the ship’s affairs.226
3.3.1.4 Pirate Judicial System and Punishments

One other important aspect of pirate life was the pirate judicial
system. This rested on the concept of public trial and upon the indelible
pirate principle of majority decision. The pirate judicial procedure was
far more just than that of honest society where well fed judges
condemned defendants to death for stealing a loaf of bread or a bit of
226 Id., at 124. The articles aboard Bartholomew Roberts’ ships are mentioned
hereunder-
I. Every man shall have an equal vote in affairs of moment. He shall have an equal
title to the fresh provisions or strong liquors at any time seized, and shall use
them at pleasure, unless a scarcity may make it necessary for the common good
that a retrenchment may be voted.
II. Every man shall be called fairly in turn by the list on broad of prizes, because
over and above their proper share, they are allowed a shift of clothes. But if they
defraud the company to the value of even one dollar in plate, jewels or money,
they shall be marooned. If any man robs another he shall have his nose and ears
slit and be put ashore where he shall be sure to encounter hardships.
III. None shall game for money either with dice or cards.
IV. The lights and candles should be put out at eight at night, and if any of the crew
desire to drink after that hour, they shall sit upon the open deck without lights.
V. Each man shall keep his piece, cutlass and pistols at all times clean and ready for
action.
VI. No boy or woman to be allowed amongst them. If any man shall be found
seducing any of the latter sex and carrying her to sea in disguise, he shall suffer
death.
VII. He that shall desert the ship or his quarters in time of battle shall be punished by
shall be punished by death or marooning.
VIII.None shall strike another on board the ship, but every man’s quarrel shall be
ended on shore by sword or pistol. At the word of command from the
quartermaster, each man being previously placed back to back, shall turn and fire
immediately. If any man does not, the quartermaster shall knock the piece out of
their cutlasses, and he that draws first blood shall be declared the victor.
IX. No man shall talk of breaking up their way of living till each has a share of
£1,000. Every man who become a cripple or lose a limb in the service shall have
800 pieces of eight from the common stock and for lesser hurts proportionately.
X. The Captain and the quartermaster shall each receive two shares of a prize, the
master gunner and boatswain, one and one half shares, all other officers one and
one quarter, and private gentlemen of fortune one share each.
XI. The musicians shall have rest on the Sabbath Day only by right, but on all others
days by favour only.
91
cheese. In general, it was the quartermaster aboard pirate ships who had
responsibility for enforcing the laws. Although serious offences were
always tried before jury, the quartermaster could order punishment
without trial for minor offences such as quarrelling, mistreatment of
equipment or neglect of duties. The quartermaster even had the power
to inflict flogging on a miscreant, provided a majority of the crew
approved. If there was a fight between two crewmen, the quartermaster
had the duty of trying to reconcile the disputants.227 If he failed to attain
reconciliation, it was the quartermaster’s duty, as stipulated in most
ship’s articles, to take the quarrelling men ashore and let them settle it
among themselves with sword and pistol, until one or the other drew
blood. Most ship’s articles regarded it a serious felony to smoke a pipe
without a cap, or to carry a lighted candle without a lantern in the hold,
especially because the feared calamity of fire at sea was one that could
almost always be avoided with the prudent use of open flame.228 Yet as
serious as it was to endanger the ship by careless use of fire, most
ship’s articles did not make it a capital offense but prescribed what was
called the punishment of Moses for the crime, i.e., “forty stripes, less
one, on the bare back”.229
Murder, however, was always a capital crime if it could be proved.
Many ships prescribed, as the penalty for murder, that the murderer and
his victim be roped together and thrown overboard. This was the
punishment called for in the regulations of the Royal Navy as well.
Aboard the ships of Captain George Low, the articles stipulated “if any
member of the company shall adjure or speak anything tending to the
separation, or breaking up of company, or shall by any means offer or
endeavour to desert or quit the company, that person shall be shot to
death by the quartermaster’s order, without the sentence of a court
martial”.230
But the most common punishment by far was marooning, i.e.,
putting an offender ashore on some deserted island, in effect making
him a maroon or a fugitive and leaving him to die. Usually the offender
was provided with a pistol so that when hunger and thirst became

228 Id., at 127.
229 Ibid.
230 Ibid.
92
unbearable, he could kill himself. It was a punishment that pirates

usually applied only to traitors, and only after a majority vote.231
3.3.1.5 Share distribution amongst Pirates

Pirates had a system of hierarchy on board their ships determining
how captured money was distributed. However, pirates were more
egalitarian than any other area of employment at that time. In fact pirate
Quartermaster was a counterbalance to the Captain and had the power
to veto his orders. The majority of plunder was in the form of cargo and
ship’s equipment with medicines the most highly prized. A vessel’s
Doctor’s chest would be worth anywhere from £300 to £400, or around
$4,70,000 in today’s value. Jewels were common plunder but not
popular as they were hard to sell, and pirates, unlike the public of
today, had little concept of their value. There is one case recorded
where a pirate was given a large diamond worth a great deal more than
the value of the handful of small diamonds given to his crewmates as a
share. He felt cheated and had it broken up to match what they
received.232
Ordinary seamen received a part of the plunder at the captain’s
discretion but usually a single share. On average, a pirate could expect
the equivalent of a year’s wages as his share from each ship captured
while the crew of the most successful pirates would often each receive
a share valued at around £1,000 ($1.17 million) at least once in their
career. One of the largest amounts taken from a single ship was that by
Captain Thomas Tew from an Indian merchantman in 1692 AD. Each
ordinary seaman on his ship received a share worth £3,000 ($ 3.5
million) with officers receiving proportionally larger amounts as per the
231 Ibid. The term comes from the Spanish word “Cimarrones”, meaning “people
who live in the mountains”. Eventually it came to mean “fugitives”.
With time the name was corrupted to Maroons and applied to fugitive black
slaves who had married Indian women and had formed a Maroon community in
the West Indies. Only much later did the word maroon come to mean a specific
colour, presumably the fancied skin colour of the black Indian Maroons of the
Caribbean. Although there are a number of authenticated cases of men who
survived marooning, or more commonly, had the good luck to be rescued, most
marooned men died alone and anonymously since the islands on which they
were marooned were as a rule no more than splits of sand, often under water at
high tide. Because of their predilection for this particular punishment, pirates
themselves were something called “marooners”, especially in the West Indies.
232 Available at: http://en.wikipedia.org/wiki/Piracy#Rewards (Visited on March 15,
2014).
93
agreed shares. Tew himself received two and a half shares. By contrast,
an ordinary seaman in the Royal Navy received only 19 Shillings per
month to be paid in a lump sum at the end of a tour of duty, which was
around half the rate paid in the Merchant Navy. However, corrupt
officers would often tax their crews wage to supplement their own and
the Royal Navy of the day was infamous for its reluctance to pay. Six
months’ pay was withheld to discourage desertion. Royal Navy
Admiral Nelson wrote in 1803 AD that since 1793 AD more than 42,000
sailors had deserted.233
Although the Royal Navy suffered from many issues, it answered
the question of prize money via the Cruises and Convoys Act of 1808
AD which handed over the share previously gained by the Crown to the
captors of the ship. Technically it was still possible for the Crown to
get the money or a portion of it, but this rarely happened. The process
of condemnations of a captured vessel and its cargo and men was given
to the High Court of Admiralty and this was the process which
remained in force with minor changes throughout the Revolutionary
and Napoleonic Wars. Royal Navy Ship Prize Shares are mentioned
hereunder:234
Rank Pre 1808 Post 1808
Sharing Sharing
Captain 3/8 2/8
Admiral of fleet 1/8 1/8
Sailing master
& Lieutenants 1/8 1/8
& Captain of Marines
Warrant Officers 1/8 1/8
Wardroom Warrant officers 1/8 1/8
& Petty Officers
Gunners, Sailors 1/8 2/8
Even the flag officer’s share was not quite straightforward; he would
only get the full one eighth if he had no junior flag officer beneath him.
If this was the case then he would get a third share. If he had more than
one then he would take one half while the rest was shared out
equally.235
233 Ibid.
234 Ibid.
235 Ibid.
94
Comparison chart using the share distribution known for three

pirates against the shares for a privateer and wages as paid by the Royal
Navy:
Privateer (Sir
Bartholomew George William Royal Navy
Rank William
Roberts Lowther Phillips (per month)
Monson)
Captain 2 shares 2 shares 1.5 shares 10 shares £8,8s
Master 1.5 Shares 1.5 shares 1.25 shares 7 or 8 shares £4
Boatswain 1.5 shares 1.25 shares 1.25 shares 5 shares £2
Gunner 1.5 shares 1.25 shares 1.25 shares 5 shares £2
Quarterma
2 shares 4 shares £1,6s
ster
Carpenter 1.25 shares 5 shares £2
Mate 1.25 shares 5 shares £2,2s
£5 + 2d per
Doctor 1.25 shares 5 shares
man aboard
Other Various
1.25 shares Various rates
Officers rates236
Able
Seaman(2
years
Experience
) Ordinary 22 s
Seamen
19s
(some 1 share 1 share 1 share
11 s237
exp.)
Landsmen
3.3.2 Piracy on the Indian Coast

The west coast of India between Bombay and Cochin, known to
sailors as the Malabar coast, produced at the end of the seventeenth
century a dynasty of pirates who acquired almost a monopoly of the
business, and who made themselves so powerful that for sixty years the
strength of the East India Company, even with the intermittent support
of the Royal Navy, was unable to subdue them. The control of the
federation rested in the hands of the native Maratha family of Angria,
but their employees were by no means all Indians. Many of them were
Europeans, especially English, attracted to both the Red Sea and the
Indian Ocean by stories of the fabulous spoils taken by Henry Every.238
236 Ibid.
237 Ibid.
95
The first of the family of Angria to exercise recognised command

was Kanhoji or Conajee, who in about 1698 AD became the Admiral of
the Maratha Navy. Kanhoji had gradually succeeded in making himself
independent of his overlords at Poona and became master of the whole
coast for some three hundred miles south of Bombay.239 Along this
coast he built a series of forts at Alibag, Severndoorg and Vijaydoorg,
whence he issued forth as a veritable pirate King to wage war on all
shipping, but particularly on that of the East India Company.240
There came a time when the Company's government at Bombay felt
constrained to inform Kanhoji that his acts of piracy on their vessels
could not continue unpunished. To this he simply replied that he would
give the English a cause to remember the name of Kanhoji Angria. He
carried out his threat so thoroughly that in 1704 AD a special emissary
was sent to warn him that he could not be permitted to search vessels in
Bombay waters, to which he sent a defiant answer that he had done
many benefits to the English, who had broken faith with him, and
henceforth he would seize their vessels wherever he could find them.
The Company was reduced to complaints to the directors at home, to
the effect that Kanhoji was able to take any European ship except the
largest, that in fact he seized all along the coast from Surat to Debul all
private merchant vessels he meets.241
A few years later, Kanhoji had seized and fortified an island within
sight of Bombay itself, so that with his fleet of powerful ships, some
carrying as many as forty guns and most of them commanded by
experienced European seamen, he became a serious menace to the
town. The pirates were now able to arrest any ship they chose as it was
entering or leaving the harbour. The Company, frightened, sent a strong
fleet of twenty galliots by way of reprisal. The result is told laconically
in the official record of the expedition: “On 9th June returned our
gallivats, having by mismanagement of the chief officer lost about 50
men and destroyed one town of Angria’s”.242
But in 1715 AD, a new and strong Governor of Bombay was
appointed, Charles Boone, a man of very different stamp from his weak
and venal predecessors, who were interested chiefly in feathering their
own nests. His first act was to build a strong wall right round the
239 Ibid.
240 Ibid.
241 Id., at 245.
242 Ibid.
96
settlement.243 He then constructed ships of war, but found great

difficulty in manning them, for the Company paid its sailors such
miserable wages that the better of them preferred to take service with
Angria. Nevertheless Boone had soon at his disposal a fine fleet of
nineteen frigates, yawls, ketches and rowing galleys, with which he
might have accomplished the suppression of the pirates but for the
incompetence and indiscipline of his subordinates.244
When Commodore Matthews arrived at Bombay from Madagascar
in 1721 he found that Boone had already arranged a strong coalition
with the Portuguese for a joint attack on the Malabar pests. But
Matthews's temper irritated the Portuguese commander. The
Portuguese themselves bolted and ran after the first shots when
attacking Angria at Colaba, and the expedition broke down in bickering
as to who was to blame. Matthews struck the Portuguese commander
over the mouth with his cane, which disrupted the alliance on the spot.
This expedition was to have been the crowning event of Boone’s
governorship. He was now retiring disappointed, yet somehow he had
contrived to do more damage to the pirates on both the Malabar and the
Red Sea than any of his predecessors, despite the difficulty put in his
way by intriguing councillors and insubordinate lieutenants. On 9th
January 1722 A.D. he sailed for England. As he proceeded down the
coast, his three ships were attacked by Angria's squadron but he beat
them off. When near Anjediva he got in his last blow by surprising the
pirates plundering a ship, which he rescued, at the same time capturing
one of the pirates' grabs.245
Kanhoji Angria died in 1729 AD, leaving five sons to quarrel over
his property. The Portuguese allied themselves first to one brother and
then to another, but paved the way for their own downfall on the west
coast of India by overlooking the winning brother Tulaji. This son
finally established himself firmly as his father's successor and during
most of the rest of the century, the battle for the control of the Indian
waters lay between him and the English, the power of the Dutch and
the French beginning to wane as well as that of the Portuguese. The
internecine quarrels of the Marathas gave the East India Company a
respite of twenty years.246 In the meantime they were building and
243 Id., at 246.

244 Ibid.
245 Ibid.
246 Id., at 248.
97
arming their ships on the same lines as men of war, and were able to
put up a good fight if need be. Several times when attacked, they took
the offensive and sank the Indian ships.247
On the rise of Tulaji Angria however, the old menace was renewed
in all its strength. His first enterprise was to attack an English fleet
under convoy and carry off five sailing vessels from under the guns of
two warships. In 1749 AD he captured “The Restoration”, the best ship
in the Bombay service. Tulaji now reigned supreme up and down the
coast from Cutch to Cochin, and but for the assistance of four men of
war under Commodore Lisle, sent especially from Madras to protect
Bombay, all trade would have been brought to a standstill. Nevertheless
Tulaji's swift sailing vessels often followed the convoyed fleets for
days, waiting like a pack of wolves to snap up any straggler. Not until
the Company had learnt how essential it was to keep ships for fighting
purposes only and not, as hitherto, make the same vessel fight and carry
cargo, was any degree of safety attained. The English were by no
means the only sufferers from the pirates of Malabar. The Portuguese
and Dutch lost increasingly large numbers of their merchant vessels
every year, and the Dutch suffered the severest loss of all in 1754 AD,
when a ship loaded with ammunition was taken and two others were
blown up after a furious fight in which Tulaji had two large ships sunk
and a great number of men killed.248
With the extension of the English power over the whole of India
following the defeat of the French, many of the lesser pirate chiefs were
glad to make terms with the Bombay government. Even the proud
Tulaji sent an agent to propose peace. The conditions he offered would
have been readily accepted in his father's time, but now the Council
was in a far stronger position, so that in answer to Tulaji's proposal to
grant passes to the Company’s ships it sent back the answer: “can you
imagine that the English will ever submit to take passes from any
Indian nation? This we cannot do. We grant passes, but would take
none from anybody”.249
Instead, an agreement was entered into between the Council and the
Marathas not under Tulaji's sway to attack him simultaneously by land
and by sea. The naval force was to be under the command of
Commodore William James, who, since his arrival in 1751 AD, had
247 Ibid.
248 Ibid.
249 Id., at 248.
98
rendered good service against the Malabar pirates and was now to win
himself enduring glory. On 22nd March 1755 AD Commodore James
sailed in The Protector, equipped with forty guns along with The
Swallow, equipped with sixteen guns. Two days later he was joined by
the fleet of the allies, which consisted of some fifty craft, large and
small. On the 29th Severndoorg, Tulaji's chief stronghold was sighted,
with the pirates' fleet coming out. The signal to chase was at once
made, but the Maratha vessels, which were faster sailors than James's,
hung back and by evening his allies were hull down astern.250
The Angrians were far from wanting to fight, even with James's
small squadron, and could be seen hanging out their turbans and
clothing to catch every breath of wind. All the following day the chase
continued, The Protector gradually outsailing her consorts, while the
Maratha fleet had long ago dropped out of sight. Finding that further
pursuit was useless, the Commodore altered his course and stood for
Severndoorg. This town stood on a rocky inlet at the end of a peninsula
and was protected by “the Golden Fortress”, a bastion with walls fifty
feet high. To the landward side was another strong fort, armed with
forty five guns, while to the south were two smaller forts. In forty eight
hours, did James, by his vigorous action reduce this Angrian
stronghold, which was second only to Gheriah in strength, and without
losing a single man.251
Emboldened by their surprising success at Severndoorg, the Bombay
Council decided to make a similar attempt on the even stronger pirate
fortress at Gheriah. On 11th February, there assembled off Gheriah, the
most powerful naval force that had ever left Bombay.252 In addition to
the Company’s fleet of eighteen vessels, under the command of
Commodore James, there was a squadron of six men of war under Rear
Admiral Watson, four of which were line of battle ships. For land
fighting, eight hundred European and six hundred native troops were
carried, who were under the command of Robert Clive.253
The Council wished to get Tulaji, dead or alive, into their own
hands, for as long as he was alive and free he was certain to cause
mischief. On reaching Gheriah the allied Maratha army was found
encamped opposite it and a messenger came off to report that with a
250 Ibid.
251 Id., at 249.
252 Id., at 250.
253 Ibid.
99
little patience the fort would surrender without a shot being fired, as
Tulaji was in the camp and ready to treat. This did not at all suit the
English, who knew that the Marathas were only concerned with the
booty, which would be divided if the fort surrendered peaceably,
whereas if it were taken by arms, the spoils would go to the victorious
English. Despite the tender of a bribe, Admiral Watson declined to treat
and summoned the fort to surrender without conditions. At half past
one in the afternoon a refusal was sent back and the signal was given
for the fleet to stand into the harbour, across whose mouth Tulaji's ships
were drawn up. Amongst his fleet of fifty eight warships of all sizes
was The Restoration, which had been captured six years before.254
A terrific bombardment was opened by the English fleet, the shells
falling so heavily into the fort that it was impossible for the pirates to
work their guns. After two hours of firing, a shell set The Restoration
on fire; it spread to the other ships and before long Angria’s fleet,
which had been the terror of the coast for half a century, was in a blaze.
Late in the afternoon Clive landed at the head of his troops and took up
a position a mile and a half from the fort, where he was joined by the
Marathas. All through the night the guns continued their deadly work,
but still the fort held out. Early next morning Admiral Watson sent
another flag of truce, but the defenders still refused to yield, so the line
of battle ships were warped in and the bombardment was reopened
while Clive attacked from the land side. In the afternoon a great
explosion took place within the fort, followed by the hoisting of a white
flag.255 An officer was sent ashore but Tulaji still refused unconditional
surrender. The fire was reopened once more and twenty minutes later
the pirate flag was hauled down for good.256
One hundred and thirty thousand pounds worth of gold, silver and
jewels was secured in the fort and divided between the land and sea
forces, much to the chagrin of the Marathas, who, although they had
done nothing to deserve it, considered that they should have had a share
of the spoils. But Tulaji himself surrendered to them and not to the
English and was held a prisoner for the rest of his life, so that he never
had another chance of doing harm to native or foreign sailors. With the
254 Id., at 251.

255 Ibid.
256 Ibid.
100
fall of Tulaji and the capture of Gheriah, the reign of the Malabar
pirates ended for all practical purposes.257
3.3.3 The Pirate Coast of Arabia

The country of Arabia ends towards the east with the great peninsula
of Oman. It is bounded on the north by the Gulf of Persia, which is
entered from the Arabian Sea through the narrow straits of Hormuz. As
the sailor approaches these straits from the Gulf of Oman, he sees on
his left hand a low indented shore known to sailors for hundreds of
years as the dreaded Pirate Coast. It extends approximately a hundred
and fifty miles. These waters were probably the cradle of navigation
and, as a natural consequence, of piracy. From their geographical
position they became the first link in the commerce between the East
and the West. When the merchandise of the East began to be carried to
the West, it was the Arabs of Oman who brought it to Arabia from
India. This intercourse is already mentioned in the monumental records
of Nineveh, Babylon and Egypt which take us back to about 5000 BC.
The Arabs of this coast, originally fishermen, gradually rowed or sailed
their small craft further and further along the Arabian shores. As they
became more skilled in shipbuilding and navigation, they dared sail out
of sight of land and ultimately make for distant countries.258
There were several ocean sailing tribes on the Pirate Coast, but the
most powerful and the one which played the biggest part in piracy were
the fierce “Joasmees”, who first became known to Europeans when the
Portuguese merchant ships began to penetrate the Straits of Hormuz
into the Persian Gulf during the sixteenth century. It was not unnatural
that this coast, indented from end to end with creeks, lagoons and
breakwaters, and inhabited by a race with strong predatory instincts,
should have become a nest of sea robbers as soon as there were foreign
vessels to be preyed upon. The chief town of the Joasmees was Ras-al-
Khyma, which lingered on until late in the nineteenth century as one of
the last centres of the slave trade.259
The activities of the Joasmees began to assume more than local
importance in December 1778 AD, when six of their dhows attacked an
English vessel bearing official despatches in the Gulf of Persia and
after a stubborn fight lasting three days, captured and took her to Ras-
257 Id., at 252.

258 Id., at 253.
259 Id., at 254.
101
al-Khyma. Emboldened by this success they repeated the feat on two

English ships in the following year. By October 1797 AD, their
contempt for the European was shown in a surprising attack, not on a
defenceless merchantman but on an English cruiser, The Viper, which
was lying in the harbour of Bushehr. She had anchored close to a fleet
of Joasmee dhows, whereupon the Joasmee Admiral promptly called
upon the agent of the East India Company in the town, and after many
protestations of friendship asked for a supply of powder and shot
which, with incredible stupidity, the agent ordered Captain Carruthers
of The Viper to supply.260
No sooner had the powder been carried on board the Joasmee dhows
than they rammed it into their guns and opened fire on the English men
of war. The crew of The Viper were below at breakfast at the time, but
at once rushed on deck and cut the cable so that they might have an
advantage in manoeuvring. A fierce fight then took place in which one
of the earliest to be wounded was Captain Carruthers, who was struck
by a ball in the loin but after girding a handkerchief round his waist he
still kept the deck until, another ball entering his forehead, he fell. The
command was then taken over by a midshipman, Salter, who continued
to fight the dhows and chased them out of sight.261 Out of a crew of
sixty five, The Viper lost thirty two, killed and wounded, showing what
a gallant and severe action she fought and how narrowly she missed
capture. Characteristically the Bombay Government held no enquiry
into this piece of treachery nor took any steps to punish the pirates. If it
had backed up the heroes of The Viper an end might have been made at
once of the Joasmee corsairs; indeed the sharp lesson the Arabs learned
that day at Bushehr had a salutary effect for some years. The
Company's indifference and failure to retaliate caused the lesson to be
forgotten and many valuable ships and lives to be lost.262
The era of tranquillity lasted only about seven years. The King of
Oman was a strong ruler and on the whole kept the lawless coastal
tribes from piracy more efficiently than the English government at
Bombay had yet managed to do. But in September of 1804 AD he left
home on a naval expedition. On his way down the Gulf he transferred
himself into a small Arab boat in order to land at Bassidore while his
ships sailed on slowly. Suddenly, as he approached the shore, three
260 Ibid.
261 Id., at 256.
262 Ibid.
102
Joasmee dhows darted out of the creek and attacked him. With several
of his attendants he fell at the first onslaught and the pirates fled before
the Muscat fleet could turn about to their ruler's assistance. With the
death of the Sultan, all order and safety departed from the Gulf, and the
Joasmees, no longer held in check, became more audacious than ever.
A whole series of outrages followed involving the destruction of a large
number of English ships, until Captain David Seton, the Resident at
Muscat, persuaded the Muscat Government to send a force to punish
the Joasmees. Captain Seton himself led the Arab fleet, which
blockaded the pirates at the island of Kishm and forced them to
surrender. After long negotiations between Bombay and the Joasmees,
a treaty was drawn up in 1806 AD under which the pirates promised not
to molest British shipping in return for permission to trade at English
ports between Surat and Bengal.263
The pirates had by this time forgotten the fear of the Company's
warships, which they attacked freely.264 The expoits of the Joasmees
finally became so great and the complaints so many that the superior
government at Calcutta was forced to take action. Lord Minto was the
Governor General at that time and he directed the Bombay Government
to prepare an expedition for service in the Gulf. The force was prepared
in September 1809 AD under Colonel Lionel Smith. It was a strong
force consisting of two frigates, nine cruisers, a regiment and a half of
regulars and about a thousand native troops. It sailed first of all to
Muscat, where Colonel Smith obtained the co-operation of the two
rulers of Oman, then to the Joasmee capital, Ras-al-Khyma, where it
arrived on 11th November. The troops were landed and drove the pirates
before them at the point of the bayonet. They soon had possession of
the town which they were allowed to plunder before it was burnt to the
ground. Some sixty pirate craft in the harbour were destroyed and one
captured ship retrieved for her lawful owners. The fleet then sailed to
another pirate stronghold, Shinas, which was treated in the same
manner. The expedition had met with unqualified success but was now
forced to go home owing to “the wavering and infatuated policy of the
Bombay Government in tying the hands of its naval officers and in
regarding the pirates as innocent and unoffending Arabs — to quote the
Governor's own words”.265
263 Id., at 257.

264 Id., at 263.
265 Ibid.
103
In less than a year the Joasmees had reorganised their fleets and
again reigned supreme from one end of the Gulf to the other. Even this
did not satisfy them now. They next turned their attention to the Red
Sea and began to intercept trade between India and other countries. In
1816 AD they took four ships coming from Surat, with cargoes valued
at twelve lakh rupees and slaughtered the native crews. An expedition
was sent from Bombay to demand compensation for the loss of the
Surat vessels, but Sheikh Hassan of Ras-al-Khyma, after long
negotiations not only refused redress but claimed the privilege of
plundering Indian vessels as a natural right, pleading that if the English
were going to protect these, there would be nothing left for the Arabs to
rob. By the following year, the Joasmees were methodically ravaging
the Indian coast and intercepting the coastal trading vessels, some of
them within seventy miles of Bombay itself. The days of Kanhoji and
Tulaji Angria had returned.266 In this year they captured more prizes
than ever before. Their fleet had grown to great size, sixty-four war
dhows, as well as vast numbers of small craft, with crews aggregating
seven thousand men. The bigger dhows had become formidable
fighters, with high sterns which reached above the bulwarks of a frigate
and so enabled the pirates to capture large vessels by their favourite
method of boarding. Most of the dhows were armed with a long gun on
the upper deck, with which they could sweep the decks of their
enemies.267
The final conquest of the Joasmees occurred in 1819 AD. Sir
William Grant Keir was placed in command of a squadron which
included The Liverpool, equipped with fifty guns, The Eden, equipped
with twenty six guns, and half a dozen of the Company's cruisers. The
land forces consisted of one thousand six hundred Europeans and one
thousand four hundred native troops. The fleet was joined by Seyyid
Saed, King of Oman, who contributed three Muscat ships and four
thousand Arabs. The expedition was brief and altogether successful.
The despatch with which Keir razed the strongholds and demolished
the ships of the pirate coast was a testimony to the criminal inefficiency
which had allowed the pirate coast to last so long.268
266 Id., at 264.

267 Ibid.
268 Ibid.
104
3.3.4 Piracy on the European Coast

The most wide and far reaching pirates in medieval Europe were the
Vikings, warriors and looters from Scandinavia who raided mainly
between the eighth and twelfth centuries. They raided the coasts, rivers
and inland cities of all Western Europe. Vikings even attacked coasts of
North Africa and Italy. They also plundered all the coasts of the Baltic
Sea, ascending the rivers of Eastern Europe as far as the Black Sea and
Persia. The lack of centralized powers all over Europe during the
middle Ages favoured pirates all over the continent. In the late Middle
Ages, the Frisian pirates led by Pier Gerlofs Donia and Wijerd
Jelckama, fought against the troops of Charles V, Holy Roman
Emperor, with some success, capturing as many as 28 ships in one
battle, earning Donia the title “Cross of the Dutchman” and making
him one of the most famous and iconic pirates of the era.269 Meanwhile,
Moor pirates were common in the Mediterranean Sea. Towards the end
of the ninth century, Moor pirate havens were established along the
coast of southern France and northern Italy. In 846 AD, Moor raiders
sacked Rome and damaged the Vatican. In 911 AD, the bishop of
Narbonne was unable to return to France from Rome because the
Moors from Fraxinet controlled all the passes in the Alps. Moor pirates
operated out of the Balearic Islands in the tenth century.270
From 824 AD to 961 AD, Arab pirates in the Emirate of Crete raided
the entire Mediterranean region. In the fourteenth century, raids by
Moor pirates forced the Venetian Duke of Crete to ask Venice to keep
its fleet on constant guard. After the slavic invasions of the former
Roman province of Dalmatia in the fifth and sixth centuries, a tribe
called the Narentines revived the old Illyrian piratical habits and often
raided the Adriatic Sea starting in the seventh century. By 642 AD they
invaded southern Italy and assaulted Siponto. Their raids in the Adriatic
increased rapidly, until the whole Sea was no longer safe for travel. The
Narentines took more liberties in their raiding quests while the
Venetian Navy was abroad. As soon as the Venetian fleet would return
to the Adriatic, the Narentines temporarily abandoned their habits
again, even signing a treaty in Venice and baptising their slavic pagan
leader into Christianity. In 834 AD they broke the treaty and again
raided Venetian traders returning from Benevento, and all of Venice’s
military attempts to punish them utterly failed. Later, they raided the
269 Available at: http://en.wikipedia.org/wiki/Piracy (Visited on March 18, 2014).

270 Ibid.
105
Venetians more often, together with the Arabs. In 846 AD, the
Narentines broke through to Venice itself and raided its lagoon city of
Caorle. In the Middle of March 870 AD they kidnapped the Roman
Bishop’s emissaries that were returning from the Ecclesiastical Council
in Constantinople. This caused a Byzantine military action that finally
brought Christianity to them. After the Arab raids on the Adriatic coast
around 872 AD and the retreat of the Imperial Navy, the Narentines
continued their raids of Venetian waters, causing new conflicts with the
Italians in 888 AD. The Venetians futilely continued to fight them
throughout the tenth and eleventh centuries.271
In 937 AD Irish pirates sided with the Scots, Vikings, Picts and
Welsh in their invasion of England but Athelstan drove them back. The
slavic piracy in the Baltic Sea ended with the Danish conquest of the
Rani stronghold of Arkonain 1168 AD. In the twelfth century, the
coasts of Western Scandinavia were plundered by Curonions and
Oeselians from the eastern coast of the Baltic Sea. In the thirteenth and
fourteenth centuries, pirates threatened the hanseatic routes and nearly
brought sea trade to the brink of extinction. Until about 1440 AD
maritime trade in both North Sea and Baltic Sea was seriously in
danger of attack by the pirates.272
An Englishman named William Maurice, convicted of piracy in
1247 AD, was the first person known to have been hanged, drawn and
quartered for piracy which would indicate that the then ruling King
Henry III took an especially severe view of this crime. The Ushkuiniks
were Novgorodian pirates who looted the cities on the Volga and Kama
Rivers in the fourteenth century. As early as Byzantine times, the
Maniots (one of Greece’s toughest populations) were known as pirates.
The Maniots considered piracy as a legitimate response to the fact that
their land was poor and piracy became their main source of income.
The main victims of Maniot pirates were the Ottomans but the Maniots
also targeted ships of European countries.273
3.3.5 Piracy on the North American Coast

Ocean piracy off the coast of North America, continued as late as the
1870’s. Pirates who operated in the Caribbean often sailed north to
attack targets. Of these was Blackbeard, who at one point even blocked
271 Ibid.
272 Ibid.
273 Ibid.
106
Charleston, South Carolina. Later in the nineteenth century, Jean

Lafitte became what is considered by many to be the last buccaneer due
to his army of pirates and fleet of pirate ships which held bases in and
around the Gulf of Mexico. Lafitte and his men participated in the war
of 1812 AD, battle of New Orleans and later his ships fought the United
States Navy and the United States Revenue Cutter Service. By 1830
AD, piracy in the Gulf of Mexico became rare with the exception of
slave traders who were considered pirates.274 In 1860 AD the United
States Navy fought the Battle of Anton Lizardo against rebels which
were declared pirates by the Mexican government. In 1870 AD the
United States again fought pirates of Mexico during the Battle of Boca
Teacapan. The invention of steam powered vessels eventually put an
end to piracy off the coast of North America, though some isolated
incidents continued to occur till the 1920’s.275
River piracy in late eighteenth to mid nineteenth century America
was primarily concentrated along the Ohio River and Mississippi River
valleys. River pirates usually located their operations in isolated
frontier settlements, which were sparsely populated areas lacking the
protection of civilized government. They resorted to a variety of tactics,
depending on the number of pirates and size of the boat crews involved.
River travellers were robbed, captured and murdered, and their
livestock, slaves, cargo, flatboats, keelboats and rafts were sunk or sold.
In 1803 AD the US Army dragoons, raided and drove out the river
pirates. Stack Island became associated with river pirates and
counterfeiters. In 1809 AD the last major river pirate activity took place
on the upper Mississippi River. River piracy in this area came to an
abrupt end when a group of flatboat men decided to make a raid on
Stack Island and wipe out the river pirates. They attacked at night, a
battle ensued, and two of the boatmen and several outlaws were killed.
The attackers captured 19 other men, a 15 year old boy and two women.
The women and teenager were allowed to leave. The remaining outlaws
are presumed to have been executed.276
James Ford, an American Ohio River civic leader and businessman,
secretly led a gang of river pirates and highwaymen from the 1820’s to
the mid- 1830’s, on the Ohio River in Illinois and Kentucky. River
274 Ibid.
275 Ibid.
276 Ibid.
107
piracy continued on the lower Mississippi River, from the early 1800’s
to the mid 1830’s. These river pirates were mainly organized into large
gangs. These gangs also existed from the 1820’s to the mid 1830’s,
between Stack Island and Natchez, in the state of Mississippi.277 The
decline of river piracy occurred over time as a result of direct military
action and the combined strength of local law enforcement and
regulator vigilant groups that uprooted and swept out pockets of outlaw
resistance. The Haida and Tlingit tribes, who lived along the coast of
southern Alaska and on islands in northwest British Columbia, were
traditionally known as fierce warriors, pirates and slave traders, raiding
as far as California. Great Lakes piracy occurred from 1900 AD to 1930
AD on Lake Michigan through the exploits of a notorious pirate named
Dan Seavey.278
3.3.6 Piracy on the African Coast

The Barbary corsairs were pirates and privateers that operated from
North African (the “Barbary Coast”) ports of Algiers, Tunis, Tripoli
and ports in Morocco, preying on shipping in the western
Mediterranean Sea as well as on ships on their way to Asia until the
early nineteenth century. The coastal villages and towns of Italy, Spain
and Mediterranean islands were frequently attacked by them and long
stretches of the Italian and Spanish coasts were almost completely
abandoned by their inhabitants. Barbary corsairs occasionally entered
the Atlantic Ocean and struck as far north as Iceland. According to
Robert Davis, between one to 1.25 million Europeans were captured by
Barbary corsairs and sold as slaves in North Africa and the Ottoman
Empire between the sixteenth and nineteenth centuries. The most
famous corsairs were Kheyr-ed-Din, his elder brother Oruc Reis (Red
beard), Turgut Reis (known as Dragut in the West), Kurtoglu (known
as Curtogoli in the West), Kemal Reis, Saleh Reis and Murad Reis. A
few Barbary corsairs, such as the Dutch Jan Janszoon and the English
John Ward (Muslim name Yusuf Reis) were renegade European
privates who had converted to Islam. The United States treated
captured Barbary corsairs as prisoners of war, indicating that they were
considered as legitimate privateers by at least some of their opponents,
as well as by their home countries.279
277 Ibid.
278 Ibid.
279 Ibid.
108
3.3.7 Piracy on the Chinese Coast

During the Qing dynasty, Chinese pirate fleets grew increasingly
powerful throughout the early nineteenth century. The effects large
scale piracy had on the Chinese economy were immense. They preyed
voraciously on China’s junk trade which flourished in Fujian,
Guangdong and was a vital artery of Chinese commerce. Pirate fleets
exercised hegemony over villages on the coast, collecting revenue by
extracting tribute and running extortion rackets. In 1802 AD Zheng Yi
inherited the fleet of his cousin, Captain Zheng Qi, whose death
provided Zheng Yi with considerably more influence in the world of
piracy. Zheng Yi and his wife, Zheng Yi Sao (who would eventually
inherit the leadership of his pirate confederacy) then formed a pirate
coalition that by 1804 AD consisted of over ten thousand men. Their
military might alone was sufficient to combat the Qing Navy. However,
a combination of famine, Qing naval opposition and internal rifts
crippled piracy in China around the 1820’s and it never again reached
the same status.280
The Buginese sailors of South Sulawesi were infamous as pirates
who used to range as far west as Singapore and as far north as the
Philippines in search of targets for piracy. The Orang laut pirates
controlled shipping in the Straits of Malacca and the waters around
Singapore, and the Malay and Sea Dayak pirates preyed on maritime
shipping in the waters between Singapore and Hong Kong from their
haven in Borneo. The Moro pirates of the southern Philippines harassed
Spanish shipping and terrorized Christian Filipino settlements.281
In the 1840’s and 1850’s, United States Navy and Royal Navy forces
campaigned together against Chinese pirates. Several notable battles
were fought, though pirate junks continued operating off China for
many more years. However, some British and American individual
citizens also volunteered to serve Chinese pirates to fight against
European forces. The British offered rewards for the capture of
westerners serving with Chinese pirates.282 During the Second Opium
War and the Taiping Rebellion, piratical junks were again destroyed in
large numbers by British Naval forces, but ultimately it wasn’t until the
1860’s and 1870’s that fleets of pirate junks ceased to exist.283
280 Ibid.
281 Ibid.
282 Ibid.
283 Ibid.
109
3.3.8 The End of Medieval Piracy

Piracy continued long after Bartholomew Roberts, Blackbeard and
Kidd had become the stuff of legend and fiction. But after the great
outbreak of 1692 AD to 1725 AD, piracy steadily diminished slowly but
surely. Pirates themselves also seemed to diminish after the great
outbreak, becoming steadily meaner in spirit, until they were mere
caricatures of the men who sailed during the Golden Age of Piracy. But
if piracy later became the shabby trade of a relatively few petty thieves
and psychotics, privateering remained a respectable pursuit for
enterprising seamen for many decades, until it was abolished in 1856
AD. For example, French privateers based in Guadaloupe and
Martinique preyed so effectively on slave ships bound for the British
colonies in the mid eighteenth century that they almost put an end to
the slave trade.284
During the American Revolution, the Continental Congress
commissioned almost anything that would float, i.e., whalers, traders,
fishing smacks, and even yachts as privateers against the British fleet.
In all, Congress and its constituent states commissioned more than
2,500 privateers and the Americans captured 2,300 prizes from the
British, losing fewer than half that number to the enemy. Yet as
effective as the privateers may have been against commerce, they were
all but useless against the Royal Navy. As a consequence, the British
had no trouble controlling major colonial ports such as New York,
Boston, and Charleston. Control of the ports by the Royal Navy meant
that the British could move troops as they chose, could resupply easily
and could bring military pressure to bear where and when they chose. It
was only when a French fleet blocked the British from relieving
Cornwallis’ army at Yorktown that the Americans won their war for
independence.285
The French also utilized privateers during the French Revolution.
Between 1793 AD and 1796 AD, French privateers seized some 2,100
English vessels. But French privateers came to an end during the long
struggle known as the Napoleonic Wars. During this era, the Royal
Navy developed effective convoy tactics, fast frigate escorts, and
matchless gunnery skills, all of which made the lone privateer all but
obsolete. The fledging United States, however, continued to rely on
privateers during the War of 1812 AD and for several decades

285 Ibid.
110
thereafter. By the 1840’s, the navies of the world had become

permanent, professional forces, possessed of advanced technologies in
the hands of highly trained crews. Privateers no longer had a place in
the strategic dispositions of such armed fleets. By the Declaration of
Paris in 1856 AD, Britain and most other European countries agreed to
ban the use of privateers in their navies. The United States, however
did not formally agree to the ban until 1890 AD, although for all
practical purposes privateering had ceased long before then.286
Despite the fact that piracy as a crime has never been completely
suppressed in the world, the record makes it clear that after 1725 AD
the maritime nations never again confronted a pirate captain of stature
or style to equal the pirate Captains of the Golden Age. But the sea
rebels of 300 years ago affected more than our literature and our
psyches. They also profoundly affected our history. As the pirate
raiders of 1692 AD to 1725 AD severely damaged the national wealth
of maritime countries, the governments of those countries undertook to
back private merchants with military and naval strength, as for
example, the British government did with the East India Company and
the Royal Africa Company.287 Soon protection of trade by armed fleets
became national policy not seen as fundamental to national power.288
The pirates also forced the trading nations to co operate with each
other against sea brigands. From this essential collaboration the
maritime countries learned to forge rules among themselves for
civilized behaviour at sea. Laws were formulated to regulate
international commerce.289 Governments came to regard international
agreements as the proper method for safeguarding the freedom of the
seas. Such international cooperation, initiated first in response to the
threat of piracy, did much to advance maritime intercourse on all levels.
Thus, in an irony of history, the notorious pirates, by the very success
of their predatory war against the world, helped to further the
establishment of international laws that made another pirate war
impossible. One of the most important consequences of the pirate
outbreak of 1692 AD to 1725 AD was the redefinition of the Royal
Navy’s role in the world. Prior to the pirate war, the Royal Navy had
been a small, defence oriented force. The Royal Navy, the maritime
286 Id., at 360.

287 Id., at 362.
288 Id., at 365.
289 Id., at 366.
111
force of the State, was not only small, it was usually confined to home
waters in times of war and allowed to rot at anchor in times of peace.290
But all that began to change during the pirate war, as the British
government came to understand that national interest and overseas
trade were synonymous. Called upon not only to fight the King’s
enemies but also to protect British mercantile interests, the Royal Navy
in the eighteenth century became the most professional naval force in
the world, as well as the largest, on perpetual patrol in every sea and
ocean. Thus, paradoxically, the pirate rebellion against authority helped
convert the Royal Navy into the instrument that created the British
Empire, an authority that ultimately came to embrace much of the
globe and to exercise dominion over all its seas.291
3.4 PIRACY IN THE MODERN ERA (AFTER 1850 AD)

It has been asserted earlier that piracy is cyclical in nature. It can be
curbed but it cannot be completely extinguished. In the decade of 2000
to 2010, the rise in the incidents of piracy off the coast of Somalia has
consistently threatened shipping and spurred a multinational effort led
by the United States of America to patrol the waters near the Horn of
Africa. Modern pirates have been successful because 90 percent of the
international trade and commerce occurs via shipping.292 Many
merchant vessels take cargo ships through narrow bodies of water such
as the Gulf of Aden and the Strait of Malacca, making them vulnerable
to be overtaken and boarded by small pirate motorboats. Modern
pirates often operate in regions of developing or struggling countries
with small navies and large trade routes. They sometimes evade capture
by sailing into waters controlled by their pursuer’s enemies. They are
sometimes linked with organized crime syndicates, but often are part of
small individual groups.293
3.4.1 Piracy in Somalia

Piracy off the coast of Somalia has been a threat to international
shipping since the second phase of the Somali Civil War in the early
twenty first century. Since 2005, many international organizations
290 Ibid.
291 Ibid.
292 Available at: http://en.wikipedia.org/wiki/Piracy#Modern_age (Visited on March
20, 2014).
293 Ibid.
112
including the International Maritime Organization (IMO) and the

World Food Programme (WFP) have expressed concern over rise in the
acts of piracy. There are several causes for the prevalence of piracy in
Somalia. In the early 1980’s, prior to the outbreak of the civil war in
Somalia, the Somali Ministry of Fisheries and the Coastal Development
Agency, launched a development program focusing on the
establishment of agricultural and fishery co operatives for local
fishermen. It also received significant foreign investment funds for
various fishery development projects, as the Somali fishing industry
was considered to have a lot of potential owing to its unexploited
marine stocks. However, after the collapse of the Central Government
in the ensuing civil war, the Somali Navy was disbanded, leaving the
territorial waters of Somalia undefended. As a result, foreign fishing
trawlers started fishing illegally in Somali waters, and ships from big
companies started dumping waste off the coast of Somalia. This led to
the erosion of fish stock. Local fishermen subsequently started to band
together to protect their legitimate fishing resources.294
After seeing the profitability of ransom payments, some financiers
and former military men later began to fund pirate activities, splitting
the profits evenly with the pirates.295 The dumping of toxic waste in
Somali waters by foreign vessels had also severely constrained the
ability of local fishermen to earn a living and forced many of them to
turn to piracy instead. Seventy percent of the local coastal communities
strongly support piracy as a form of national defence of the country’s
territorial waters. Many pirates believe that they are protecting their
fishing grounds and exacting justice and compensation for the stolen
marine resources. However, as piracy has become substantially more
lucrative in recent years, financial gain is now the primary motive of
the pirates. The geographical position of Somalia also makes it very
much susceptible to piracy. The Somali term for pirate is “burcad
badeed” which means “ocean robber”. However, the pirates
themselves prefer to be called “badaadinta badah” which means
“saviour of the sea”.296
294 Available at: http://en.wikipedia.org/wiki/Piracy_in_Somalia (Visited on March

20, 2014).
295 Ibid.
296 Ibid.
113
3.4.2 Piracy in the Gulf of Guinea

Piracy in the Gulf of Guinea affects many countries in West Africa
as well as the international community. It has evolved over the first
decade of the present century. By 2011 it had become an issue of
international concern. In this area, vessels are primarily captured for
their valuable cargo rather than for hostages. Seized oil tankers are
sometimes redirected to chartered tankers that receive the stolen oil.
Such piratical acts interfere with the legitimate trading interests of the
affected countries which include Benin, Democratic Republic of
Congo, Ghana, Ivory Coast and Togo. For example, the trade of
Benin’s major port, the port of Cotonou was reported to have dropped
by 70 percent in 2012. The cost of piracy in the Gulf of Guinea due to
stolen goods, security and insurance has been estimated to be around $
two billion.297
3.4.3 Piracy in the Strait of Malacca

Piracy in the Strait of Malacca has historically been an unresolved
threat to ship owners and the mariners who ply this 900 km long sea
lane. The geographical position of the Strait of Malacca makes this
region very much susceptible to piracy.298 It is an important passageway
between India and China and is used heavily for commercial trade. The
strait is narrow, contains thousands of islets and is an outlet for many
rivers, making it an ideal location for pirates to hide and evade capture.
However, in recent years, coordinated patrols by Indonesia, Malaysia
and Singapore, along with increased security on merchant vessels have
resulted in a dramatic downturn in piracy.299
3.4.4 Pirate Methodology

While pirate attacks can be expected at any time, most occur during
the day, often in the early hours. They may involve two or more skiffs
that can reach speeds of up to 25 knots per hour. With the help of
motherships, which include captured fishing and merchant vessels, the
operating range of Somali pirates has increased far into the Indian
Ocean. Rocket propelled grenades, AK 47 assault rifles and small arms
297 Available at: http://en.wikipedia.org/wiki/Piracy_in_the_Gulf_of_Guinea

298 Available at: http://en.wikipedia.org/wiki/Piracy_in_the_Strait_of_Malacca
299 Ibid.
114
are used by them to intimidate the Captain of the targeted vessel to

slow down and allow boarding. Warning shots are also fired
sometimes. Pirates bring light ladders along with them to climb aboard.
They then take operational control of the vessel. They are interested in
money and the ransom amount and generally do not harm their
prisoners. Pirates often throw their equipment into the sea before being
arrested, as this lowers the likelihood of a successful prosecution.300
3.4.5 Pirate Weaponry and Funding

Pirates get most of their weapons from Yemen, but a significant
number of them also comes from Mogadishu, the capital of Somalia.
Pirates use highly sophisticated weapons and equipment, such as
Satellite Phones, Global Positioning System, SONAR System,
Speedboats, AK 47 Assault Rifles, Shotguns, Pistols, Grenades,
Mounted Machine Guns, Rocket Propelled Grenades and Grenade
Launchers. The funding of piracy operations is structured in a stock
exchange in Somalia, with investors buying and selling shares in the
upcoming pirate attacks. Ransom money is paid to pirates in large
denomination US Dollar bills.301 It is delivered to them in burlap sacks
which are either dropped from helicopters or cased in waterproof
suitcases loaded onto tiny skiffs. Ransom money has also been
delivered to pirates via parachute. To authenticate the banknotes,
pirates use currency counting machines, the same technology which is
used at foreign exchange bureaus worldwide. Pirates purchase these
machines from business connections in Dubai, Djibouti and other areas.
Hostages held by the pirates usually have to wait for 45 days on an
average for the ship owners or their respective governments to pay the
ransom and secure their release.302
3.4.6 Recent downward trend in Piracy

According to the report of the International Maritime Bureau, dated
16th January 2014, piracy on the world’s Seas has reached a six year
low, with only 264 ships attacked in 2013, as compared with 297 in
300 Available at: http://en.wikipedia.org/wiki/Piracy_in_Somalia#Methodology

301 Available at:
http://en.wikipedia.org/wiki/Piracy_in_Somalia#Weaponry_and_funding
302 Ibid.
115
2012 and 439 in 2011. Worldwide figures were brought down by a huge
reduction in Somali piracy. However, the threat and capability of
heavily armed Somali pirates still remains strong. It is important to
mention here that out of the total pirate attacks, only about 50% are
actually reported.303 Commenting on the recent reduction in Somali
piracy attacks, IMB Director Pottengal Mukundan has aptly remarked
that:
“Although the number of acts of piracy reported in Somalia have
significantly decreased, there can be no room for complacency. The
drop in reported attacks is due to proactive naval actions against
suspect pirate action groups, the employment of privately contracted
armed security personnel and the preventive measures used by the
merchant vessels. The attacks will rise to past levels if the naval
presence is reduced or vessels relax their vigilance”.304
As of the year 2014, the Somali pirates primarily operate from the
Galmudug region in the central section of Somalia. In the previous
years, they largely ventured into the sea from the ports in the north
eastern Puntland province, until the regional administration launched a
major anti piracy campaign and established the Puntland Maritime
Police Force (PMPF).305
3.4.7 Piracy in Popular Culture

In western popular culture, the modern pirate stereotype owes its
tradition mostly to that of the Caribbean pirates. In many books, movies
and legends, pirates are portrayed as swashbucklers and plunderers.
They are shown on ships, often wearing eye patches and peg legs and
having a parrot perched on their shoulder. Pirates have retained their
image through pirate themed tourist attractions, toy portrayals of
pirates, and books and plays featuring pirates.306
In films, books, cartoons, and toys, pirates often have an unrefined
appearance that symbolizes the rogue personality and adventurous,
303 Available at:

www.iccccs.org/news/836piracyfallsin2012butseasoffeastandwestafricaremainda
nge roussaysimb (Visited on June 28, 2014).
International Law” 46 CWRJIL 48 (2013).
305 Available at: http://wikipedia.org/PiracyinSomalia (Visited on June 28, 2014).
306 Available at: http://en.wikipedia.org/wiki/Pirates_in_popular_culture (Visited on
March 20, 2014).
116
seafaring lifestyle. They are frequently depicted as greedy, mean

spirited, and concentrated only on fighting enemy pirates and locating
hidden treasure. They are often shown wearing shabby seventeenth or
eighteenth century clothing.307 Many movies have been made on the
theme of Pirates and Piracy.308
307 Ibid.
308 The Black Pirate, a 1926 film starring Douglas Fairbanks. Captain Blood,
a 1935 film starring Errol Flynn. The Sea Hawk, a 1940 film starring Errol Flynn.
Treasure Island, a 1950 adaptation of Stevenson's book, starring Robert Newton.
Anne of the Indies, a 1951 adventure film loosely based on the life of Anne
Bonny (Jean Peters) with Thomas Gomez as Blackbeard. The Crimson Pirate,
a 1952 adventure film, starring Burt Lancaster. Long John Silver, a 1954 sequel
to Treasure Island, starring Robert Newton. Pirates of the 20th Century, a
1979 Soviet adventure film about modern piracy. The Island (1980), a film based
on Peter Benchley's novel. The Pirate Movie (1982), an Australian film loosely
based on The Pirates of Penzance, starring Christopher Atkins and Kristy
McNichol. Pirates, a 1986 Roman Comic/adventure film starring Walter
Matthau. Cutthroat Island, a 1995 film starring Geena Davis. Pirates of the
Caribbean: The Curse of the Black Pearl (2003), Pirates of the Caribbean: Dead
Man's Chest (2006), Pirates of the Caribbean: At World's End (2007) and Pirates
of the Caribbean: On Stranger Tides (2011), movies based on the
popular Disneyland attraction, “Pirates of the Caribbean”. Captain Phillips
(2013), inspired by the true story of the 2009 Maersk Alabama hijacking, an
incident during which merchant mariner Captain Richard Phillips was taken
hostage by Somali pirates in the Indian Ocean led by their leader Abduwali
Muse.
117
CHAPTER – IV:
LAW OF SEA:
“Whosoever commands the sea, commands the trade of the world;
whosoever commands the trade of the world, commands the riches of
the world, and consequently the world itself”.
Sir Walter Raleigh (Historie of the Worlde) 309

One of the attributes of statehood is that a State should have a
territory.310 International Law gives recognition to the territorial
sovereignty exercised by the State in question within that area. The
territory over which a State has an exclusive control and jurisdiction is
referred to as State territory.311 Oppenheim defines State territory as
“that defined portion of the globe which is subjected to the sovereignty
of a State”.312 A State without a territory is not possible, although the
necessary territory may be very small, like Vatican City313 and
Monaco.314 A wandering tribe, although it may have a government of its
own and may be otherwise organized, is not a State until it has settled
309 Eric J. Lobsinger, “Post 9/11 Security in a Post World War II World: The
Question of Compatibility of Maritime Security Efforts with Trade Rules and
International Law” 32 TMLJ 62 (2007).
310 Other essential attributes of statehood are population, government and
sovereignty. In other words, there cannot be a State without a territory. It implies
that each State is established within a defined area of the globe delimited
formally by agreed boundaries.
311 H.O. Agarwal, International Law and Human Rights 116 (Central Law
312 Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law:
Volume I (Peace) 563 (Pearson Education Ltd., 2005).
313 Vatican City is the smallest Country of the world in terms of area as well as
population, having an area of only 0.44 square km.
314 Nauru is the second smallest Country of the world in terms of area, having an
area of only 2.02 square km.
down in a territory of its own.315 A State can exercise supreme authority

over its territory.316 However, territorial sovereignty of a State must not
be exercised in a manner detrimental to other States but in good faith,
in compliance with international obligations and with International Law
in general.317 It was held by the International Court of Justice in The
Corfu Channel Case (United Kingdom of Great Britain and Northern
Ireland vs. People's Republic of Albania)318 that it is every State’s

316 Supra note 3.
317 Ibid.
318 ICJ Reports, 1949, at 22. In 1946, during the Greek civil war, a series of three
encounters took place in the Corfu Channel, between Albania and the United
Kingdom. On 15 May, the British cruisers Orion and Superb passed through the
northern part of the Corfu Channel. Albanian shore batteries opened fire on the
two ships, coming within 200 yards of the squadron, but striking neither
vessel. The United Kingdom lodged a formal protest, demanding an apology
from Albania.Albania stated that the ships had violated Albanian territorial
waters, and asserted that passage through the Corfu Channel required Albanian
permission. On 2nd August, the United Kingdom stated that Royal Navy ships
would return any fire in the future. On 22nd October, a Royal
Navy flotilla composed of cruisers Mauritius and Leander, and
destroyers Saumarez and Volage, entered the Corfu Channel. The ships were
at Action Stations, with orders to return fire if they were attacked. Their Guns
were not loaded, and were in a neutral position. At 2:53 p.m., Saumarez struck a
mine and was heavily damaged; 36 people aboard were killed. The Volage took
her in tow, only to strike another mine at 4:16 p.m.; 8 people were killed. A total
of 44 people died and 42 others were injured, and the Saumarez was damaged
beyond repair. On 12th and 13th November, the Royal Navy undertook a mine
clearance operation in the Corfu Channel, Operation Retail, which took place in
Albanian territorial waters without advance permission from that country.
Subsequently, the Albanian government formally complained to the United
Nations, describing the operation as an incursion into Albanian territorial waters.
On 9th December, the United Kingdom demanded reparations from
Albania. Albania denied involvement in the laying of mines, blaming Greece. In
January 1947, the United Kingdom attempted to involve the United Nations
Security Council. The Soviet Union objected, but the Security Council heard the
British complaint. A factfinding committee consisting
of Polish, Australian and Colombian representatives reached no conclusions
despite ten meetings. A Soviet veto, supported by Poland, blocked a resolution
that would have accused Albania of indirect responsibility for the minefield. The
Security Council passed a resolution on 9th April 1947, with the Soviet Union
and Poland abstaining, recommending that the United Kingdom and Albania
resolve the dispute in the International Court of Justice. This recommendation
120
obligation not to allow knowingly its territory to be used for acts

contrary to the rights of other States. State territory comprises land
territory, national waters (rivers, bays, lakes, estuaries and other
enclosed areas), territorial sea (formally called the territorial waters),
airspace over the territory and the subsoil under the earth.319
4.2 TERRITORIAL SEA

Sovereignty of a State is confined not only to the waters and land
lying within its boundaries. It also extends to a part of the sea which is
adjacent to the coastal State. These waters are contained in a certain
zone or belt called Marginal Zone or Marginal Belt and the rights
which the coastal States enjoy are called maritime rights. Extension of
sovereignty of the coastal States over the territorial sea or marginal
zone is based on the principle that the land dominates the sea.320
Territorial sea therefore may be defined as that part of the sea which is
adjacent to the coast and over which International Law permits the
coastal States to exercise sovereignty subject only to a general right of
innocent passage on the part of foreign shipping. The possession of this
territory is neither optional, nor dependent upon the will of the State,
was made pursuant to Article 36, paragraph 3 of the United Nations Charter. On
22nd May 1947, the United Kingdom brought a suit against Albania.
319 Supra note 3.
320 Id., at 131. In North Sea Continental Shelf Case (Germany vs. Denmark and the
Netherlands), ICJ Reports (1969), the dispute, which was submitted to the Court
on 20th February 1967, related to the delimitation of the continental shelf
between the Federal Republic of Germany and Denmark on the one hand, and
between the Federal Republic of Germany and the Netherlands on the other. The
Parties asked the Court to state the principles and rules of International law
applicable, and undertook thereafter to carry out the delimitations on that basis.
The Court delivered judgment by 11 votes to 6. The Court rejected the contention
of Denmark and the Netherlands to the effect that the delimitations in question
had to be carried out in accordance with the principle of equidistance as defined
in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding
that the Federal Republic, which had not ratified the Convention, was not legally
bound by the provisions of Article 6; and that the equidistance principle was not
a necessary consequence of the general concept of continental shelf rights, and
was not a rule of customary international law. The Court also rejected the
contentions of the Federal Republic in so far as these sought acceptance of the
principle of an apportionment of the continental shelf into just and equitable
shares. It held that each Party had an original right to those areas of the
continental shelf which constituted the natural prolongation of its land territory
into and under the sea.
121
but compulsory. It is different from the internal waters in the sense that
internal waters lie within the boundaries of the State, and they are used
exclusively by the States themselves. Right of innocent passage is not
available in respect to internal waters. It is also different from the high
seas which are free to the commerce and navigation of all the States.
The Geneva Convention on Territorial Sea and Contiguous Zone of
1958 had expressly recognized the sovereignty of the coastal States
over the territorial sea.321 The United Nations Convention on the Law of
the Sea (UNCLOS), 1982, also lays down that the sovereignty of a
coastal State extends, beyond its land territorial and internal waters, to
an adjacent belt of sea described as the territorial sea.322
4.2.1 Breadth of Territorial Sea

Although it has been accepted that the coastal State exercises
sovereignty over territorial sea, there was a great controversy under
international law regarding its breadth. Customary international law
does not prescribe any definite rule in this regard. The extent of the
territorial jurisdiction was based on the “Cannon Shot Rule”. It was in
1702 that noted jurist Bynkershoek published his work titled “De
dominio maris dissertatio”, in which he laid down that the coastal State
could dominate only such width of coastal waters as lay within the
range of cannon shot from shore batteries. Since a cannon ball could
travel three miles, this became the accepted territorial waters limit.
Bynkershoek was the first notable jurist to enunciate the cannon shot
rule in these terms, although there is historical evidence that the rule
was already well known and invoked in practice before the publication
321 Available at: http://pustakahpi.kemlu.go.id/dir_dok/Convention-on-the-territorial-

sea-&-the-contiguous-zone.pdf (Visited on August 1, 2015). Article 1(1) provides
that the sovereignty of a State extends, beyond its land territory and its internal
waters, to a belt of sea adjacent to its coast, described as the territorial sea.
Article 1(2) provides that this sovereignty is exercised subject to the provisions
of these Articles and to other rules of International Law.
322 Available at:
http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm
(Visited on August 1, 2015). Article 2(1) provides that the sovereignty of a
coastal State extends, beyond its land territory and internal waters and, in the
case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea,
described as the territorial sea. Article 2(2) provides that this sovereignty extends
to the air space over the territorial sea as well as to its bed and sub soil. Article
2(3) provides that the sovereignty over the territorial sea is exercised subject to
this Convention and to other rules of international law.
122
of his book. In the nineteenth century, the three mile limit received
widespread recognition by the jurists as well as by the courts and was
also adopted by many prominent States.323
The concept of the territorial sea being three miles in breath endured
until the middle of the twentieth century. But later it was not acceptable
to a few States. Moreover, as a result of scientific inventions and
discoveries, the range of cannon shot increased considerably and hence
it became necessary to change this rule. The Hague Conference of 1930
made an attempt to obtain consensus of the States on a specific breadth
of the maritime belt, but the effort went in vain.324 Even the
International Conference on the Law of the Sea held in Geneva in 1958
could not prescribe the limit in view of the divergent views taken by the
States. In view of the uncertainty in this regard, the Second Geneva
Conference on the Law of the Sea was convened by the General
Assembly in 1960, but again the breadth of the territorial sea could not
be settled.325 The result was that different States made different claims
till 1982, which is evident from the following chart:
Territorial Sea claims 1978

3 miles 20 States
4-10 miles 9 States
12 miles 70 States
12-200 miles 12 states
200 miles 15 states326
The controversy relating to the breadth of the territorial sea finally
ended with the adoption of the UNCLOS, 1982. It provides that every
State has the right to establish the breadth of its territorial sea up to a
limit not exceeding twelve nautical miles measured from baselines.327
In those cases where the coasts of two States are opposite or adjacent to
Allahabad, 2011).
325 Ibid.
327 Supra note 14. Article 3 provides that every State has the right to establish the
breadth of its territorial sea up to a limit not exceeding 12 nautical miles,
measured from the baselines determined in accordance with this Convention (1
nautical mile is equal to 1.852 km and 12 nautical miles are equal to 22.224 km).
Article 4 provides that the outer limit of the territorial sea is the line every point
of which is at a distance from the nearest point of the baseline equal to the
123
those cases where the coasts of two States are opposite or adjacent to
each other, neither of the two States is entitled, failing agreement
between them to the contrary, to extend its territorial sea beyond the
median line every point of which is equidistant from the nearest points
on the baselines from which the breadth of the territorial seas of each of
the two States is measured. The above rule is subject to the exception
of cases of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance
therewith.328
In Maritime Delimitation and Territorial Questions between Qatar
and Bahrain (Qatar vs. Bahrain)329 the International Court of Justice
held that equidistance/special circumstances rule is to be regarded as
having customary character. The Court also noted that equidistance line
is the line every point of which is equidistant from the nearest points on
the baselines from which the breadth of the territorial seas of each of
the two States is measured. This line can only be drawn when the
baselines are known. Where the baselines are not specified which are to
be used for the determination of the breadth of the territorial sea, the
first task is to determine the relevant coasts of the parties from which
breadth of the territorial sea. Article 5 provides that the normal baseline for
measuring the breadth of the territorial sea is the low water line along the coast
as marked on large scale charts officially recognized by the coastal State.
However, Article 6 provides that in the case of islands situated on atolls or of
islands having fringing reefs, the baseline is the seaward low water mark of the
reef, as shown by the appropriate symbol on charts officially recognized by the
coastal State.
328 Ibid. Article 15 of the UNCLOS, 1982. This provision is identical to Article 12(1)
of the Convention on the Territorial Sea and the Contiguous Zone, 1958.
329 ICJ Reports, 2001, at 94. On 8th July 1991, Qatar filed an application in the
Registry of the Court, instituting proceedings against Bahrain in respect of
certain disputes between the two States relating to sovereignty over the Hawar
islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the
delimitation of the maritime areas of the two States. In this Application, Qatar
contended that the Court had jurisdiction to entertain the dispute by virtue of two
agreements concluded between the Parties in December 1987 and
December 1990 respectively; the subject and scope of the commitment to the
Court's jurisdiction being determined, according to the Applicant, by a formula
proposed by Bahrain to Qatar on 26th October 1988 and accepted by Qatar in
December 1990. By letters of 14th July and 18th August 1991, Bahrain contested
the basis of jurisdiction invoked by Qatar.
124
will be determined the location of the baselines and the pertinent base
points which enables the equidistance line to be measured.330
In the territorial and maritime dispute between Nicaragua and
Honduras in the Caribbean Case (Nicaragua vs. Honduras)331, the
International Court of justice laid down the reasons why the
equidistance method is widely used in the practice of maritime
delimitation. The Court observed that this method has certain intrinsic
value because of its scientific character and the relative ease with which
it can be applied. The Court stated that the equidistance remains the
general rule. However, where the construction of an equidistance line
from the main line is not feasible because of the special circumstances
(an exception to the equidistance method) alternative method should be
applied. The Court stated that the use of a bisector (the line formed by
bisecting the angle by the linear approximations of coastlines) is a
viable substitute method where equidistance method is not possible or
appropriate. The justification for the application of the bisector method
in maritime delimitation lies in the configuration of and relationship
between the relevant coastal fronts and the maritime areas to be
delimited. The Court applied the bisector method by stating that it is
justified by the geographical configuration of the coastal and the
geomorphological features of the area where the endpoint of the land
boundary is located.332
4.2.2 Rights and Duties of Coastal States over Territorial Sea

The coastal States enjoy the following rights over their territorial sea:
I. Sovereignty of the coastal States extends to the territorial sea.
Consequently, they have complete dominion over this part of the sea
except that of right of innocent passage and of transit by vessels of all
nations.333

331 ICJ Reports, 2007. On 8th December 1999 Nicaragua filed an Application
instituting proceedings against Honduras in respect of a dispute relating to the
delimitation of the maritime areas appertaining to these States in the Caribbean
Sea. In its Application, Nicaragua sought to found the jurisdiction of the Court
on the provisions of Article XXXI of the American Treaty on Pacific Settlement
(officially known as the “Pact of Bogota”), as well as on the declarations
accepting the jurisdiction of the Court made by the Parties, as provided for in
Article 36, paragraph 2 of the Statute of the Court.
333 Id., at 134.
125
II. The coastal State has the exclusive right to appropriate the natural
products of the territorial sea, including the right of fisheries therein,
and non living resources of the sea bed and of its sub soil, namely, non
living resources such as hydrocarbons, gravel and minerals.334
III. The coastal State may enact laws and regulations, especially in
regard to transport and navigation, and foreign ships exercising the
right of innocent passage should comply with such laws and
regulations. Laws could be enacted, for the safety of navigation and
regulation of maritime traffic, for the protection of navigation aids and
facilities and other facilities or installations; for the protection of cables
and pipelines, for the conservation of the living resources of the sea, for
the preservation of the environment of the coastal State and the
prevention, reduction and control of pollution thereof.335
IV. The coastal State has a right to take the necessary steps, to prevent
any passage which is not innocent.336 It may suspend temporarily, in
specified area of its territorial sea, the innocent passage of foreign
ships, if such suspension is essential for the protection of its security,
including weapons exercises. Such suspension shall take effect only
after having been duly published.337
V. If any warship does not comply with the laws and regulations of the
Coastal State concerning innocent passage through the territorial sea,
and disregards any request for compliance which is made to it, the
coastal State may require it to leave the territorial sea immediately.338
The coastal States are bound to perform the following duties with
regard to their territorial sea:
334 Ibid.
335 Supra note 14. Article 21(1) of the UNCLOS, 1982. Article 21(2) provides that
such laws and regulations shall not apply to the design, construction, manning or
equipment of foreign ships unless they are giving effect to generally accepted
international rules or standards. Article 21(3) provides that the coastal State shall
give due publicity to all such laws and regulations. Article 21(4) provides that
foreign ships exercising the right of innocent passage through the territorial sea
shall comply with all such laws and regulations and all generally accepted
international regulations relating to the prevention of collisions at sea.
336 Ibid. Article 25(1) of the UNCLOS, 1982. This provision is identical to Article
16(1) of the Convention on the Territorial Sea and the Contiguous Zone, 1958.
338 Ibid. Article 30 of the UNCLOS, 1982. This provision is identical to Article 23 of
the Convention on the Territorial Sea and the Contiguous Zone, 1958.
126
I. Although the coastal State has a right to suspend the innocent

passage in its territorial sea, it has a duty not to hamper the innocent
passage of foreign ships through the territorial sea. It shall not impose
requirements on foreign ships which have the practical effect of
denying or impairing the right of innocent passage; or discriminate in
form or in fact against the ships of any State or against ships carrying
cargoes to, from or on behalf of any State.339
II. The coastal State is also under a duty to give appropriate publicity
to any danger to navigation, of which it has knowledge, within its
territorial sea.340
4.2.3 Rights and Duties of Other States

Other States have the following rights and duties in the territorial sea
of coastal States:
I. It is a customary rule of International Law that territorial sea is open
to merchant vessels of all States for navigation. Such vessels have a
right of innocent passage through the territorial sea of a State. Thus,
every State has the right to demand that in time of peace its
merchantmen may inoffensively pass through the territorial sea of
every other State.341 This is a corollary of the freedom of the open sea.
339 Ibid. Article 24(1) of the UNCLOS, 1982. This provision is similar to Article 15
(1) of the Convention on the Territorial Sea and the Contiguous Zone, 1958,
which provides that the coastal State must not hamper innocent passage through
the territorial sea.
341 Ibid. Article 18(1) of the UNCLOS, 1982, lays down that passage means
navigation through the territorial sea for the purpose of: (a) traversing that sea
without entering internal waters or calling at a roadstead or port facility outside
internal waters; or (b) proceeding to or from internal waters or a call at such
roadstead or port facility. Article 18(2) lays down that passage shall be
continuous and expeditious. However, passage includes stopping and anchoring,
but only in so far as the same are incidental to ordinary navigation or are
rendered necessary by force majeure or distress or for the purpose of rendering
assistance to persons, ships or aircraft in danger or distress. Article 19(1) states
that passage is innocent so long as it is not prejudicial to the peace, good order or
security of the coastal State. Such passage shall take place in conformity with
this Convention and with other rules of international law. Article 19(2) states that
passage of a foreign ship shall be considered to be prejudicial to the peace, good
order or security of the coastal State if in the territorial sea it engages in any of
the following activities: (a) any threat or use against the sovereignty, territorial
integrity or political independence of the coastal State, or in any other manner in
127
Any attempt on the part of a coastal State to prevent or to hamper

innocent passage through the territorial sea in time of peace is
unlawful.342
II. No charge may be levied upon foreign ships by reason only of their
passage through the territorial sea.343
III. Foreign nuclear powered ships and ships carrying nuclear or other
inherently dangerous or noxious substances shall, when exercising the
right of innocent passage through the territorial sea, carry documents
and observe special precautionary measures established for such ships
by international agreements.344
4.2.4 Jurisdiction in Relation to Foreign Ships

The coastal State has sovereignty over the territorial sea. As to the
criminal jurisdiction on a board a foreign ship, passing through the
territorial sea, the UNCLOS, 1982 has made elaborate provisions. It
provides that the coastal State shall not exercise criminal jurisdiction on
board a foreign ship passing through its territorial sea to arrest any
violation of the principles of international law embodied in the Charter of the

United Nations; (b) any exercise or practice with weapons of any kind; (c) any
act aimed at collection information to the prejudice of the defence or security of
the Coastal State; (d) any act of propaganda aimed at affecting the defence or
security of the Coastal State; (e) the launching, landing or taking on board of any
aircraft; (f) the launching, landing or taking on board of any military device; (g)
the loading or unloading of any commodity, currency or person contrary to the
customs, fiscal, immigration, or sanitary laws and regulations of the coastal
State; (h) any act of wilful and serious pollution contrary to this Convention; (i)
any fishing activities; (j) the carrying out of research or survey activities; (k) any
act aimed at interfering with any systems of communication or any other
facilities or installations of the coastal State; (l) any other activity not having a
direct bearing on passage.
342 The above rule was incorporated in the Geneva Convention on the Territorial Sea
and the Contiguous Zone of 1958 under Article 14 which provided that ships of
all States shall enjoy the right of innocent passage through the territorial sea. The
same provision has been laid down under Article 17 of the UN Convention on
Law of the Sea, 1982, by stating that subject to this Convention, ships of all
States, whether coastal or land locked, enjoy the right of innocent passage
through the territorial sea.
343 Supra note 14. Article 26(1) of the UNCLOS, 1982. Article 26(2) which is an
exception to this general rule, states that charges may be levied upon a foreign
ship passing through the territorial sea as payment only for specific services
rendered to the ship. These charges shall be levied without discrimination.
344 Ibid. Article 23 of the UNCLOS, 1982.
128
person or to conduct any investigation in connection with any crime

committed on board of the ship during its passage, save only in the
following cases: (i) if the consequences of the crime extend to the
coastal State; (ii) if the crime is of a kind to disturb the peace of the
country or the good order of the territorial sea; (iii) if the assistance of
the local authorities has been requested by the master of the ship or by
a diplomatic agent or consular officer of the flag State; or (iv) if such
measures are necessary for the suppression of illicit traffic in narcotic
drug or psychotropic substances.345 However, the above provisions do
not affect the right of the coastal State to take any steps authorized by
its laws for the purpose of an arrest or investigation on board a foreign
ship passing through its territorial sea after leaving internal waters.346
Civil jurisdiction of the coastal State over the foreign ship has been
provided in the Convention differently. It is provided that the coastal
State should not stop or divert a foreign ship passing through the
territorial sea for the purpose of exercising civil jurisdiction in relation
to a person on board the ship.347 It is further provided that the coastal
State may not levy execution against or arrest the ship for the purpose
of any civil proceedings, save only in respect of obligations or
liabilities assumed or arrest the ship for the purpose of any civil
proceedings, save only in respect of obligations or liabilities assumed
or incurred by the ship itself in the course or for the purpose of its
voyage through the waters of the coastal State.348 These prohibitions
are, however, without prejudice to the coastal State’s right to levy
345 Ibid. Article 27(1) of the UNCLOS, 1982.

346 Ibid. Article 27(2) of the UNCLOS, 1982. Article 27(3) provides that in the cases
provided for in Articles 27(1) and (2), the coastal State shall, if the master so
requests, notify a diplomatic agent or consular officer of the flag State before
taking any steps, and shall facilitate contact between such agent or officer and
the ship’s crew. In cases of emergency this notification may be communicated
while the measures are being taken. Article 27(4) provides that in considering
whether or in what manner an arrest should be made, the local authorities shall
have due regard to the interests of navigation. Article 27(5) provides that except
as provided in Part XII or with respect to violations of laws and regulations
adopted in accordance with Part V, the coastal State may not take any steps on
board a foreign ship passing through the territorial sea to arrest any person or to
conduct any investigation in connection with any crime committed before the
ship entered the territorial sea, if the ship, proceeding from a foreign port, is only
passing through the territorial sea without entering internal waters.
129
execution against or to arrest a foreign ship for the purpose of any civil
proceedings, in the territorial sea after leaving internal waters.349
4.3 CONTIGUOUS ZONE

Contiguous Zone is that part of the sea which is beyond and adjacent
to the territorial sea of the coastal State. The UNCLOS, 1982 provides
that the contiguous zone may not extend beyond 24 nautical miles from
the baselines from which the breadth of the territorial sea is
measured.350 The coastal State does not exercise sovereignty over this
part of the sea, however, it may take appropriate action to protect its
revenue and like matters. In others words, police and revenue
jurisdiction of the coastal States extends to the contiguous zone. It
further provides that in the contiguous zone, the coastal States may
exercise the control necessary to prevent infringement of its customs,
fiscal, immigration or sanitary laws and regulations within its territory
or territorial sea; and punish infringement of the above laws and
regulations committed within its territory or territorial sea.351
4.4 CONTINENTAL SHELF

The concept of the continental shelf is mainly co related with the
exploitation of the natural resources from the sea adjacent to the
territorial sea. It was therefore of little importance until the exploitation
of natural resources become technically possible. The concept acquired
significance when it was propounded by the American President Harry
S. Truman on September 28, 1945 through two proclamations.
However, these proclamations did not define the continental shelf.352 It

350 Ibid. Article 33(2) of the UNCLOS, 1982. Article 24(2) of the Convention on the
Territorial Sea and the Contiguous Zone, 1958, provided that the contiguous zone
may not extend beyond twelve miles from the baseline from which the breadth of
the territorial sea is measured. Article 24(3) provided that where the coasts of
two States are opposite or adjacent to each other, neither of the two States is
entitled, failing agreement between them to the contrary, to extend its territorial
sea beyond the median line every point of which is equidistant from the nearest
points on the baselines from which the breadth of the territorial seas of each of
the two States is measured.
352 Supra note 16, at 265. In the first Truman Proclamation, the United States
declared that having concern for the urgency of conserving and prudently
utilizing its natural resources, the Government of the United States regards the
130
was defined by a subsequent US State Department press release as “the

submarine land which is contiguous to the continent and which is
covered by not more than 100 fathoms of water”. It was stated that
since the continental shelf is the submarine extension of the coastal
State, the latter has reasonable right to have jurisdiction over it.
Immediately after the proclamations of USA, other States also made
similar proclamations, for example Mexico in 1945, Argentina in 1946,
Chile and Peru in 1947, etc. These proclamations necessitated that a
definite shape and form should be given to the continental shelf under
international law, because it was feared that in the absence of definite
international law on this issue, different countries of the world might
occupy large portions of the sea bed and incorporate them into their
continental shelf.353 In fact, the world wide adoption of the continental
shelf concept has been so rapid that it took less than thirteen years (the
time between the Truman Proclamation and the Geneva Convention on
the Continental Shelf, 1958) for the extension of national sovereignty to
the resources of the continental shelf to be universally accepted. As
early as in 1950, international law jurist Lauterpacht had stated that the
concept of the continental shelf had become a part of customary
international law since consistent and uniform usage of States could be
established in a short span of time.354
4.4.1 Definition of Continental Shelf under the Convention of 1958

The Convention on the Continental Shelf of 1958 stated that the term
continental shelf is used as referring to the sea bed and subsoil of the
submarine areas adjacent to the coast but outside the area of the
territorial sea, to a depth of 200 meters, or beyond that limit, to where
natural resources of the subsoil and the sea bed of the continental shelf
contiguous to the coasts of the USA, subject to its jurisdiction and control. In the
second Truman proclamation and the United States declared that in view of the
pressing need for conservation and protection of fishing resources, the
Government of the United States regards it as proper to establish conservation
zones in those areas of the high seas contiguous to the coasts of the United States
of America wherein fishing activities have been or in the future may be
developed and maintained on a substantial scale. Where such activities have been
or shall be hereafter be developed and maintained by its nationals alone, the
United States of America regards it as proper to establish explicitly bounded
conservation zones in which fishing activities shall be subject to the regulation
and the control of the United States.
353 Id., at 266.
131
the depth of the superjacent waters admits of the exploitation of the

natural resources of the said area. It also refers to the sea bed and
subsoil of similar submarine areas adjacent to the coasts of islands.355
Thus, instead of defining the meaning of the term continental shelf, this
convention defined the area of the sea which may be referred to as
continental shelf. The above definition contains two alternative
criterion for defining the area of the continental shelf, i.e., depth of the
sea criterion and the exploitation criterion. The first criterion which was
laid down in the definition was that the continental shelf extends to a
depth of 200 meters of the sea. This limit was prescribed because at that
time it was thought that exploitation and exploration of the resources
was not possible beyond the depth of 200 meters from the baselines.
However, the definition was not rigid. Where the exploitation of the
resources could be made beyond that limit, that area could also be
referred to as continental shelf on the basis of exploitation criterion.356
This definition allowed the states to interpret the area of continental
shelf according to their own convenience. The developed States applied
the exploitation criterion. The United States went to explore oil and gas
up to 300 miles on the east coast continental slope at a depth of 4000-
5000 feet deep in the Atlantic ocean. It is to be noted that if the above
definition was accepted, a large part of the sea, if not the whole, would
have become a part of the continental shelf of one State or the other, in
view of the fact that some States have become scientifically and
technologically so developed that it has become for them to explore and
exploit the resources of the sea even from the deep sea ocean. If they
would be allowed to do so, international relations would have
deteriorated.357
355 Available at:

http://sedac.ciesin.columbia.edu/entri/texts/continental.shelf.1958.html (Visited
on August 1, 2015). Article 1 of the Convention on the Continental Shelf, 1958.
Article 6(1) provided that where the same continental shelf is adjacent to the
territories of two or more States whose coasts are opposite to each other, the
boundary of the continental shelf appertaining to such States shall be determined
by agreement between them. In the absence of an agreement, and unless another
boundary line is justified by special circumstances, the boundary is the median
line, every point of which is equidistant from the nearest point of the baselines
from which the breadth of the territorial sea of each State is measured.
357 Ibid.
132
In the North Sea Continental Shelf Cases (Germany vs. Denmark

and the Netherlands),358 the International Court of Justice observed that
“the rights of the coastal State in respect of the area of continental shelf
that constitutes a natural prolongation of its land territory into and
under the sea exist ipso facto and ab initio, by virtue of its sovereignty
over the land, and as an extension of it in the exercise of sovereign
rights for the purpose of exploring the sea bed and exploiting its natural
resources. In short, there is here an inherent right”.359 It was further
observed that “more fundamental than the notion of proximity, appears
to be the principle of the natural prolongation or continuation of the
land territory or domain of the coastal State into and under the sea, i.e.,
the bed of its territorial sea which is under full sovereignty of the
coastal State. What confers the ipso jure title to the coastal State in
respect of its continental shelf is the fact that submarine areas may be
deemed to be actually part of the territory over which the coastal State
already has dominion, in the sense that although covered with water,
they are a prolongation or continuation of that territory, an extension of
it under the sea”.360
4.4.2 Definition of Continental Shelf under the UN Convention on the

Law of the Sea, 1982
This UNCLOS, 1982, states that the continental shelf of a coastal
State comprises the sea bed and subsoil of the submarine areas that
extend beyond its territorial sea throughout the natural prolongation of
its land territory to the outer edge of the continental margin,361 or to a
distance of 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured where the outer edge of the
continental margin does not extend upto that distance.362 The
delimitation of the continental shelf between States with opposite or
358 ICJ Reports (1969), at 3.

359 Id., at 22.
360 Id., at 31.
361 Supra note 14. Article 76(3) of the UNCLOS, 1982, provides that the continental
margin comprises the submerged prolongation of the land mass of the coastal
State, and consists of the sea bed and subsoil of the shelf, the slope and the rise.
It does not include the deep ocean floor with its oceanic ridges or the subsoil
thereof.
362 Ibid. Article 76(1) of the UNCLOS, 1982. Article 76(2) provides that the
continental shelf of a coastal State shall not extend beyond the limits provided
for in Articles 76(4), 76(5) and 76(6).
133
adjacent coasts shall be effected by agreement between them on the

basis of international law, as referred to in Article 38 of the Statute of
the International Court of Justice, in order to achieve an equitable
solution.363
4.4.3 Outer Limits of Continental Shelf

The UNCLOS, 1982 provides that for the purposes of this
convention, the coastal State shall establish the outer edge of the
continental margin wherever the margin extends beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is
measured, by either:
I. A line delineated in accordance with Article 76(7) by reference to
the outermost fixed points at each of which the thickness of
sedimentary rocks is at least 1% of the shortest distance from such
point to the foot of the continental slope;364 or
II. A line delineated in accordance with Article 76(7) by reference to
fixed points not more than 60 nautical miles from the foot of the
continental slope.365
In the absence of evidence to the contrary, the foot of the continental
slope shall be determined as the point of maximum change in the
gradient at its base.366 After having provided the above method of
establishing the outer edge of the continental margin, the convention
lays down the formula for fixing the precise limits of the continental
shelf of a costal State in Article 76(5).367
363 Ibid. Article 83(1) of the UNCLOS, 1982. Article 83(2) provides that if no
agreement can be reached within a reasonable period of time, the States
concerned shall resort to the procedures provided for in Part XV. Article 83(3)
provides that pending such agreement, the States concerned, in a spirit of
understanding and co operation shall make every effort to enter into provisional
arrangements of a practical nature during this transitional period, not to
jeopardize or hamper the reaching of the final agreement. Such arrangements
shall be without prejudice to the final delimitation.
364 Ibid. Article 76(7) of the UNCLOS, 1982, provides that the coastal State shall
delineate the outer limits of its continental shelf, where that shelf extends beyond
200 nautical miles from the baselines from which the breadth of the territorial sea
is measured, by straight lines not exceeding 60 nautical miles in length,
connecting fixed points, defined by coordinates of latitude and longitude.
365 Ibid. Article 76(4)(a) of the UNCLOS, 1982.
366 Ibid. Article 76(4)(b) of the UNCLOS, 1982.
367 Ibid. Article 76(5) of the UNCLOS, 1982, provides that the fixed points
comprising the line of the outer limits of the continental shelf on the sea bed,
134
The International Court of Justice in the Case Concerning

Continental Shelf between Malta and Libya,368 held that “since the
development of the law enables a State to claim that continental shelf
appertaining to it extending up to as far as 200 nautical miles from its
coast, whatever the geological characteristic of the corresponding sea
bed and subsoil, there is no reason to ascribe any role to geological or
geophysical factors within that distance either in verifying the legal title
of the States concerned or in proceeding to a delimitation as between
their claims”.369
drawn in accordance with Article 76(4)(a)(i) and (ii), either shall not exceed 350
nautical miles from the baselines from which the breadth of the territorial sea is
measured or shall not exceed 100 nautical miles from the 2500 meter isobath,
which is a line connecting the depth of 2500 meters. Article 76(6) provides that
notwithstanding the provisions of Article 76(5), on submarine ridges, the outer
limit of the continental shelf shall not exceed 350 nautical miles from the
baselines from which the breadth of the territorial sea is measured. However, this
condition does not apply to submarine elevations that are natural components of
the continental margin, such as its plateaux, rises, caps, banks and spurs. Article
76(8) provides that information on the limits of the continental shelf beyond 200
nautical miles from the baselines from which the breadth of the territorial sea is
measured shall be submitted by the coastal State to the Commission on the
Limits of the Continental Shelf set up under Annex II on the basis of equitable
geographical representation. The Commission shall make recommendations to
coastal States on matters related to the establishment of the outer limits of their
continental shelf. The limits of the shelf established by a coastal State on the
basis of these recommendations shall be final and binding. Article 76(9) provides
that the coastal State shall deposit with the Secretary General of the United
Nations, charts and relevant information, including geodetic data, permanently
describing the outer limits of its continental shelf. The Secretary General shall
give due publicity thereto.
368 ICJ Reports (1985), at 35. On 26th July 1982, the Governments of Libya and
Malta jointly notified to the ICJ a Special Agreement concluded between them
on 23rd May 1976 for the submission to the Court of a dispute concerning the
delimitation of the continental shelf between the two countries. In accordance
with the Statute and the Rules of Court, the proceedings took their course having
regard to the terms of the Agreement between the two countries. The Memorials
of both Parties were filed on 26th April 1983 and the Counter Memorials on 26th
October 1983.
369 Available at: http://www.icj-
cij.org/docket/index.php?sum=353&p1=3&p2=3&case=68&p3=5 (Visited on
August 1, 2015)
135
4.4.4 Rights and Duties of Coastal States over their Continental Shelf
The UNCLOS, 1982 provides that the coastal States exercise
sovereign rights over the continental shelf for the purpose of exploring
it and exploiting its natural resources.370 It is further provided that the
coastal State shall have the exclusive right to authorize and regulate
drilling on the continental shelf for all purposes.371 These rights are
exclusive in the sense that if the coastal State does not explore the
continental shelf or exploit its natural resources, no one may undertake
these activities without the express consent of the coastal State.372
Further, the rights of the coastal States do not depend on occupation,
effective or notional, or any express proclamation.373 However, the
rights of the coastal State do not affect the legal status of the
superjacent waters or of the air space above those waters.374 The
exercise of its rights by the coastal State must not infringe or result in
any unjustifiable interference with navigation and other rights and
freedoms of other States.375
4.4.5 Rights and Duties of Other States over the Continental Shelf
Others States have also been given a few rights over the continental
shelf of the coastal States. Thus, all States are entitled to lay submarine
cables and pipelines on the continental shelf.376 However, while laying
such submarine cables or pipelines, States shall have due regard to
cables or pipelines already in position; and possibilities of repairing
existing cables or pipelines shall not be prejudiced.377 Further, this right
may be exercised only with the consent of the coastal States. The
370 Supra note 14. Article 77(1) of the UNCLOS, 1982. Article 77(4) provides that the
natural resources referred to in this Article consist of the mineral and other non
living resources of the sea bed and subsoil together with living organisms
belonging to sedentary species, that is to say, organisms which at the harvestable
stage, either are immobile on or under the sea bed or are unable to move except
in constant physical contact with the sea bed or the subsoil.
374 Ibid. Artice 78(1) of the UNCLOS, 1982.
136
coastal State at the time of giving consent may impose reasonable

conditions for the laying of cables or pipelines.378
4.4.6 Payment for Exploitation of Continental Shelf beyond 200

Nautical Miles
The continental shelf regime beyond 200 nautical miles differs from
that up to 200 nautical miles limit. The coastal States are required to
make payments or contributions with respect to the exploitation of the
continental shelf beyond 200 nautical miles to the International Sea Bed
Authority. The Authority shall distribute them to the State Parties to the
1982 Convention, on the basis of equitable sharing criterion, taking into
account the interests and needs of developing States, particularly the
least developed and the land locked States.379
378 Ibid. Article 79(2) of the UNCLOS, 1982, provides that subject to its right to take
reasonable measures for the exploration of the continental shelf, the exploitation
of its natural resources and the prevention, reduction and control of pollution
from pipelines, the coastal State may not impede the laying or maintenance of
such cables and pipelines. Article 79(3) provides that the delineation of the
course for the laying of such pipelines on the continental shelf is subject to the
consent of the coastal State. Article 79(4) provides that nothing in this Part
affects the right of the coastal State to establish conditions for cables or pipelines
entering its territory or territorial sea, or its jurisdiction over cables and pipelines
constructed or used in connection with the exploration of its continental shelf or
exploitation of its resources or the operations of artificial islands, installations
and structures under its jurisdiction.
379 Ibid. Article 82(1) of the UNCLOS, 1982, provides that the coastal State shall
make payments or contributions in respect of the exploitation of the non living
resources of the continental shelf beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured. Article 82(2) provides
that the payments and contributions shall be made annually with respect to all
production at a site after the first five years of production at that site. For the
sixth year, the rate of payment or contribution shall be 1 percent of the value or
volume of production at the site. The rate shall increase by 1 percent for each
subsequent year until the twelfth year and shall remain at 7 percent thereafter.
Production does not include resources used in connection with exploitation.
Article 82(3) provides that a developing State which is a net importer of a
mineral resource produced from its continental shelf is exempt from making such
payments or contributions in respect of that mineral resource. Article 82(4)
provides that the payments or contributions shall be made through the Authority,
which shall distribute them to State parties to this Convention, on the basis of
equitable sharing criteria, taking into account the interests and needs of
developing States, particularly the least developed and land locked among them.
137
4.5 EXCLUSIVE ECONOMIC ZONE

The concept of Exclusive Economic Zone was for the first time
advocated by Kenya at the Colombo session of the Asian African Legal
Consultative Committee held in January 1971. Subsequently, Kenya
submitted a working paper at the Lagos session of the committee held
in January 1972. Finally, Kenya submitted the draft of exclusive
economic zone concept at the Geneva Session of the U.N. Committee
on Peaceful Uses of the Sea bed and Ocean Floor beyond the Limits of
National Jurisdiction, in 1972.380 Later on, the concept of EEZ was
thoroughly discussed and considered in different sessions of the Third
UN Conference on the Law of the Sea. The EEZ finally found place in
the UN Convention on the Law of the Sea of 1982.381
4.5.1 Definition of the Exclusive Economic Zone

The UNCLOS, 1982, defines the exclusive economic zone as an area
beyond and adjacent to the territorial sea, subject to the specific legal
regime established by this Part (Part V), under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other
States are governed by the relevant provisions of this Convention.382
The EEZ is an area beyond and adjacent to the territorial sea extending
up to 200 nautical miles seaward from the baselines from which the
breadth of the territorial sea is measured.383 The outer limit of the EEZ
shall be shown in the chart of a scale which shall be given due publicity
by the coastal States. The delimitation of the exclusive economic zone
between States with opposite or adjacent coasts shall be effected by
agreement between them on the basis of international law, as referred
to in Article 38 of the Statute of the International Court of Justice, in
order to achieve an equitable solution.384

382 Supra note 14. Article 55 of the UNCLOS,1982.
384 Ibid. Article 74(1) of the UNCLOS, 1982. Article 74(2) provides that if no
agreement can be reached within a reasonable period of time, the States
concerned shall resort to the procedures provided for in Part XV. Article 74(3)
provides that pending such agreement, the States concerned, in a spirit of
understanding and co operation shall make every effort to enter into provisional
arrangements of a practical nature during this transitional period, not to
jeopardize or hamper the reaching of the final agreement. Such arrangements
shall be without prejudice to the final delimitation.
138
4.5.2 Rights and Duties of Coastal States over Exclusive Economic Zone
In the EEZ, the coastal States have sovereign rights for the purposes
of exploring and exploiting, conserving and managing the natural
resources (living and non living) of the waters superjacent to the sea
bed and its subsoil. Other activities for the economic exploitation and
exploration of the zone, such as production of energy from water,
currents and winds may also be carried out therein.385 The expression
“other activities” is important in the sense that the coastal State may
bring the zone for any other economic uses which may be discovered in
future. Coastal States also have jurisdiction with regard to the
establishment and use of the artificial islands, installations and
structures; marine scientific research; and over the protection and
preservation of the marine environment.386 Coastal States also have
other rights and duties provided in the Convention at different places.387
However, in exercising their rights and performing their duties in the
exclusive economic zone, the coastal States shall have due regard to the
rights and duties of other States and shall act in a manner compatible
with the provisions of this convention.388
No doubt, coastal States enjoy the above sovereign rights over the
EEZ, the Zone cannot be equated to the territorial sea which is regarded
as a part of the State territory and over which they exercise sovereignty.
Thus the EEZ cannot be appropriated by the coastal States. The
expression “sovereign rights” signifies that EEZ could only be used
exclusively in the sense of the rights of a coastal State over resources

387 Ibid. Article 56(1)(c) of the UNCLOS, 1982. Article 73(1) provides that the
coastal State may, in the exercise of its sovereign rights to explore, exploit,
conserve and manage the living resources in the exclusive economic zone, take
such measures, including boarding, inspection, arrest and judicial proceedings, as
may be necessary to ensure compliance with the laws and regulations adopted by
it in conformity with this Convention. Article 73(2) provides that the arrested
vessels and their crews shall be promptly released upon the payment of
reasonable bond or other security. Article 73(3) provides that coastal State
penalties for violations of fisheries laws and regulations in the exclusive
economic zone may not include imprisonment, in the absence of agreements to
the contrary by the States concerned, or any other form of corporal punishment.
Article 73(4) provides that in cases of arrest or detention of foreign vessels the
coastal State shall promptly notify the flag State through appropriate channels, of
the action taken and of any penalties subsequently imposed.
139
contained in its coastal waters. No State can take away these rights
unless the coastal State itself transfers them to another State.389
4.5.3 Rights and Duties of Other States over Exclusive Economic Zone
All States (coastal as well as land locked) have freedom of
navigation and over flight in the EEZ of coastal States. They may also
lay submarine cables and pipelines. In addition to the above, they have
freedom of the other internationally lawful uses of the sea such as those
associated with the operation of ships, aircraft and submarine cables
and pipelines.390 However, in exercising their rights and performing
their duties in the EEZ of coastal States, other States shall have due
regard to the rights and duties of the coastal State. They shall comply
with the laws and regulations adopted by the coastal State in
accordance with the provisions of this convention and other rules of
international law.391
The regime of the EEZ has been established by the UN Convention
on the Law of the Sea, 1982, which came into force on November 16,
1994. However, a large number of States had already claimed
jurisdiction of various kinds in their municipal laws much before the
Convention came into force.392 Thus, the confirmation of the 200
nautical miles exclusive economic zone has become a definite rule of
International Law. It has been rightly stated that “the exclusive
economic zone has become a part of general International Law, there
can now be no doubt”.393 The International Court of Justice in the case
of Tunisia vs. Malta394 declared that “the institution of the exclusive
economic zone, with its rule on entitlement by reason of distance, as
shown by the practice of States, has become a part of customary
international law”. Thus, the EEZ possesses a special legal status
having its own peculiarities.395

390 Supra note 14. Article 58(1) of the UNCLOS, 1982.
394 ICJ Reports (1985), at 33.
August 1, 2015)
140
4.5.4 Distinction between Continental Shelf and Exclusive Economic Zone

Coastal States have sovereign rights under the regime of the
continental shelf and the EEZ with respect to natural resources. In the
regime of the continental shelf, the sovereign rights cover essentially
the natural resources of the sea bed and subsoil, whereas in the EEZ
these rights also cover the natural resources of the waters superjacent to
the sea bed. These two regimes also possess a similar legal character.
The rights of coastal States in these zones are primarily of an economic
kind and the traditional freedoms, including the freedom of navigation
and over flights are preserved.396 However, two regimes, differ in
certain important respects, i.e.,-
I. Firstly, the rights of the coastal State over its continental shelf
need not be proclaimed, since such rights exist ipso facto and ab initio.
They do not depend on any express proclamation. However, in the
context of the EEZ, the Convention has not made any vesting
provisions i.e., a parallel provision to Article 77(3). The absence of this
provision follows that the coastal States are required to make a
declaration for asserting the rights in the EEZ. The practice of States
has been to issue such proclamations.397
II. Secondly, the fisheries regime of the EEZ concerning the
conservation and utilization of living resources, including the question
of access by other States to such resources does not apply to
sedimentary species. Such species from a part of the natural resources
of the continental shelf and are regulated by that regime.398
In the Case Concerning the Continental Shelf (Libyan Arab
Jamhuriya vs. Malta)399 the International Court of Justice observed that
“the two institutions, i.e., the continental shelf and the exclusive
economic zone are linked together in modern law. It was further
observed that since the rights enjoyed by a State over its continental
shelf would also be possessed by it over the sea bed and subsoil of any
exclusive economic zone which it might proclaim, one of the relevant
circumstances to be taken into account for the delimitation of the
continental shelf of the State is the legally permissible extent of the
exclusive economic zone appertaining to that State. This does not mean
that the concept of continental shelf has been absorbed by that of the
396 Supra note 14. Articles 58 and 78 of the UNCLOS, 1982.

398 Ibid.
399 ICJ Reports (1985), Para 33.
141
exclusive economic zone. It does however signify that greater

importance must be attributed to the element of distance from the coast,
which is common to both concepts. Although the institutions of
continental shelf and exclusive economic zone are different and
distinct, the rights which the exclusive economic zone entails over the
sea bed are defined by reference to the regime laid down for the
continental shelf. Although there can be a continental shelf where there
is no exclusive economic zone, there cannot be an exclusive economic
zone without a corresponding continental shelf”.400
4.6 HIGH SEAS

Under customary international law the term high seas means that
part of the sea which is not included in the territorial waters of any
State. In 1609, Hugo Grotius, in his treatise titled Mare Liberum401
contended that the sea cannot be the property of any State, because it
could not be taken into possession by occupation. Therefore, the sea
was by nature free from the sovereignty of any State. Later, prominent
writers of the eighteenth century also advocated for the freedom of the
high seas. The leading author of this era was Bynkershoek, whose
standard work De Dominio Maris was published in 1702. Vattal, Von
Martens, Azuni and others followed his lead, and the principal of the
freedom of the high seas was by the end of the first quarter of the
nineteenth century universally recognized in theory and practice.402
4.6.1 Definition of High Seas

The Geneva Convention on the High Seas, 1958, provided that “the
term high seas means all parts of the sea that are not included in the
territorial sea or in the internal waters of a State”.403 However, in view
of the developments in law of sea which took place after the enactment
of this convention, particularly the emergence of the concepts of
exclusive economic zone and archipelagic waters, this definition

August 1, 2015).
401 Its full title is “Mare Liberum Seu De Jure Quod Batavis Competit ad Indicana
Commercia Dissertatio”.
403 Available at: http://www.gc.noaa.gov/documents/8_1_1958_high_seas.pdf
(Visited on August 1, 2015). Article 1 of the Geneva Convention on the High
Seas, 1958.
142
became obsolete and inadequate, and there was an urgent need to revise
it. Therefore, the UNCLOS, 1982, provides that “the provisions of this
part (Part VII) apply to all parts of the sea that are not included in the
exclusive economic zone, in the territorial sea or in the internal waters
of a State, or in the archipelagic waters of an archipelagic State”. Thus,
instead of defining high seas, this convention describes its area. It is
important to note that the area of the high seas has been substantially
reduced under the UNCLOS, 1982.404
4.6.2 Freedoms of the High Seas

The UNCLOS, 1982 provides that the high seas are open to all
States, whether coastal or landlocked. The expression “freedom of the
high seas” comprises of the following freedoms for both coastal as well
as landlocked States:
I.Freedom of navigation;
II.Freedom of overflight;
III.Freedom to lay submarine cables and pipelines (subject to Part
VI);405
IV.Freedom to construct artificial islands and other installations
permitted under international law (subject to Part VI);
V.Freedom of fishing; and
VI.Freedom of scientific research.406
However, these freedoms shall be exercised by all States with due
regard for the interests of other States in their exercise of the freedom
of the high seas, and also with due regard for the rights under this
convention with respect to activities in the Area.407 In addition to these
freedoms, every State, whether coastal or landlocked, has the right to
sail ships flying its flag on the high seas.408 The convention further
provides that the high seas shall be reserved for peaceful purposes,409
404 Supra note 14. Article 86 of the UNCLOS, 1982.

405 Ibid. Article 87(1) of the UNCLOS, 1982. Article 2 of the Geneva Convention on
the High Seas, 1958, also made similar provisions.
406 Ibid.
408 Ibid. Article 90 of the UNCLOS, 1982. Article 4 of the Geneva Convention on the
High Seas, 1958, also made similar provisions.
143
and that no State may purport to subject any part of the high seas to its
sovereignty.410
4.6.3 Jurisdiction on the High Seas

The foundation of the maintenance of order on the high seas has
rested upon the concept of the nationality of the ship, and the
consequent jurisdiction of the flag State over the ship. It is basically the
flag State that will enforce the rules and regulations not only of its own
municipal law, but of international law as well. A ship without a flag
will be deprived of many of the benefits and rights available under the
legal regime of the high seas.411 The UNCLOS, 1982 provides that each
State is required to elaborate the conditions necessary for the grant of
its nationality to ships, for the registration of ships in its territory and
for the right to fly its flag. The nationality of a ship will depend upon
the flag it flies, but there must be a genuine link between the State and
the ship.412 Ships shall sail under the flag of one State only and shall be
subject to its exclusive jurisdiction on the high seas. Except in case of a
real transfer of ownership or change of registry, a ship cannot change
its flag during a voyage or while in a port of call.413 A ship which sails
under the flags of two or more States, using them as per convenience,
may not claim any of the nationalities in question with respect to any
other State, and may be assimilated to a ship without nationality.414
Warships on the high seas have complete immunity from the
jurisdiction of any State other than the flag State.415 Similarly, ships

411 Malcolm Nathan Shaw, International Law 611 (Cambridge University Press, New
Delhi, 2008).
412 Supra note 14. Article 91 of the UNCLOS, 1982. Article 91(2) provides that every
State shall issue to ships to which it has granted the right to fly its flag
documents to that effect. Article 5 of the Geneva Convention on the High Seas,
1958, also made similar provisions.
413 Ibid. Article 92(1) of the UNCLOS, 1982. Article 6(1) of the Geneva Convention
on the High Seas, 1958, also made similar provisions.
415 Ibid. Article 95 of the UNCLOS, 1982. Article 8(1) of the Geneva Convention on
the High Seas, 1958, also made similar provisions. Article 8(2) provided that the
term warship means a ship belonging to the naval forces of a State and bearing
the external marks distinguishing warships of its nationality, under the command
of an officer duly commissioned by the government and whose name appears in
the Navy List, and manned by a crew who are under regular naval discipline.
144
owned or operated by a State and used only on government non

commercial service shall have complete immunity on the high seas
from the jurisdiction of any State other than the flag State.416
In case of a collision or any other incident of navigation concerning
a ship on the high seas, involving the penal or disciplinary
responsibility of the master or of any other person in the service of the
ship, no penal or disciplinary proceedings may be instituted against
such person except before the judicial or administrative authorities
either of the flag State or of the State of which such person is a
national.417 No arrest or detention of the ship, even as a measure of
investigation, shall be ordered by any authorities other than those of the
flag State.418
4.6.4 Duties of the Flag State on the High Seas

The UNCLOS, 1982 provides that every flag State shall have the
duties on the high seas:
I.Every State shall effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag.419
II.Every State shall take such measures for ships flying its flag as are
necessary to ensure safety at sea.420
III.Every State shall cause an enquiry to be held by or before a suitably
qualified person or persons into every marine casualty or incident of
navigation on the high seas involving a ship flying its flag and causing
loss of life or serious injury to nationals of another State or serious
damage to ships or installations of another State or to the marine
environment. The flag State and the other State shall cooperate in the
conduct of any inquiry held by that other State into any such marine
casualty or incident of navigation.421
416 Ibid. Article 96 of the UNCLOS, 1982. Article 9 of the Geneva Convention on the
High Seas, 1958, also made similar provisions.
145
IV.Every State shall require the master of a ship flying its flag, in so far
as he can do so without serious danger to his ship, the crew or the
passengers:
(i) To render assistance to any person found at sea in danger of being
lost;
(ii) To proceed with all possible speed to the rescue of persons in
distress, if informed of their need of assistance, in so far as such action
may reasonably be expected of him;
(iii) After a collision, to render assistance to the other ship, its crew
and its passengers and, where possible, to inform the other ship of the
name of his own ship, its port of registry and the nearest port at which
it will call.422
V.Every State shall take effective measures to prevent and punish the
transport of slaves in ships authorized to fly its flag and to prevent
unlawful use of its flag for that purpose. Any slave taking refuge on
board any ship, irrespective of its flag, shall ipso facto be free.423
VI.All States shall cooperate to the fullest possible extent in the
repression of piracy on the high seas or in any other State outside the
jurisdiction of any State.424
VII. All States shall cooperate in the suppression of illicit traffic in
narcotic drugs and psychotropic substances engaged in by ships on the
high seas contrary to international conventions.425
VIII. All States shall cooperate in the suppression of unauthorized
broadcasting from the high seas.426
IX.Every State shall adopt laws and regulations necessary to provide
that the breaking or injury of a submarine cable beneath the high seas,
done willfully or through culpable negligence, by a ship flying its flag
or by a person subject to its jurisdiction, in such a manner as to be
liable to interrupt or obstruct telegraphic or telephonic communications,
shall be a punishable offence. Similarly, the breaking or injury of a
submarine pipeline or a high voltage power cable beneath the high seas
423 Ibid. Article 99 of the UNCLOS, 1982. Article 13 of the Geneva Convention on
146
shall be a punishable offence. However, this provision shall not apply

to any break in or injury caused by persons who acted merely with the
legitimate object of saving their lives or their ships, after having taken
all necessary precautions to avoid such break or injury.427
X.Every State shall adopt laws and regulations necessary to provide
that if persons subject to its jurisdiction, who are the owners of a
submarine cable or pipeline beneath the high seas, in laying or
repairing that cable or pipeline, cause a break in or injury to another
cable or pipeline, they shall bear the cost of repairs.428
XI.Every State shall adopt laws and regulations necessary to ensure that
the owners of ships, who can prove that they have sacrificed an anchor,
a net or any other fishing gear, in order to avoid injuring a submarine
cable or pipeline, shall be indemnified by the owner of the cable or
pipeline, provided that the owner of the ship has taken all reasonable
precautionary measures beforehand.429
XII. All States are duty bound to take or to co operate with other States
in taking such measures for their respective nationals, as may be
necessary for the conservation of the living resources of the high
seas.430 States shall co operate with each other in the conservation and
management of the living resources in the areas of the high seas.431
States shall co operate to establish sub regional or regional fisheries
organizations for taking measures for the conservation of the living
resources concerned.432
4.7 WATERS OF THE ARCHIPELAGIC STATES

The UN Convention on the Law of the Sea, 1982, has for the first
time created a regime for Archipelagic States and the waters of such
States. In general terms, the word archipelago means “a group of
islands”. The term archipelago is defined in the UNCLOS, 1982 as “a
group of islands, including parts of islands, inter connecting waters and
147
other natural features which are so closely inter related that such
islands, waters and other natural features form an intrinsic
geographical, economic and political entity, or which historically have
been regarded as such”.433 Further, an Archipelagic State has been
defined as “a State constituted wholly by one or more Archipelago and
may include other islands.434 Such States consider the entire area of
land and sea within the perimeter of islands as their national territory.435
Philippines and Indonesia had proposed a set of draft articles on
Archipelagic States before the Sixth Session of the UN Committee on
the Peaceful Uses of the sea bed in August 1973 with the object of
establishing the principle which should enable the employment of
straight baselines joining the outermost points of the outermost islands
and drying reefs of the archipelago in drawing the baselines from which
the extent of the territorial sea is to be measured, and thereby to
establish the enclosed waters as “archipelagic waters”. These waters,
regardless of their depth or distance from the coast, belong to and are
subject to the sovereignty of the Archipelagic State to which they
appertain. The above proposal gained wide support from other States
also.436
4.7.1 Drawing of Archipelagic Baselines

The UNCLOS, 1982 provides that an Archipelagic State may draw
straight archipelagic baselines joining the outermost points of the
outermost islands and drying reefs of the archipelago.437 However, the
following conditions are required to be met:
I. The baselines should include the main islands and an area in which
the ratio of the area of the water to the area of the land including atolls
is between 1 to 1 and 9 to 1.438
433 Ibid. Article 46(b) of the UNCLOS, 1982.

434 Ibid. Article 46(a) of the UNCLOS, 1982.
437 Supra note 14. Article 47(1) of the UNCLOS, 1982. Article 48 provides that the
breadth of the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf shall be measured from archipelagic baselines drawn in
accordance with Article 47.
438 Ibid. For the purpose of computing the ratio of water to land under this provision,
land areas may include waters lying within the fringing reefs of islands and
atolls, including that part of a steep sided oceanic plateau which is enclosed or
148
II. The length of such baselines shall not exceed 100 nautical miles,
except that up to 3 percent of the total number of baselines enclosing
any archipelago may exceed that length, up to a maximum length of
125 nautical miles.439
III. The baselines shall not depart to any appreciable extent from the
general configuration of the archipelago.440
IV. The baselines shall not be drawn to and from low tide elevations,
unless lighthouses or similar installations which are permanently above
sea level have been built on them, or where a low tide elevation is
situated wholly or partly at a distance not exceeding the breadth of the
territorial sea from the nearest island.441
V. The system of baselines shall not be applied by an Archipelagic
State in such a manner as to cut off from the high seas or the exclusive
economic zone, the territorial sea of another State.442
VI. If a part of the archipelagic waters of an Archipelagic State lies
between two parts of an immediately adjacent neighboring State, the
existing rights and all other legitimate interests which the latter State
has traditionally exercised in such waters and all rights stipulated by
agreement between those States shall continue and be respected.443
VII. The baselines drawn in accordance with the above mentioned
provisions shall be shown on charts of a scale or scales adequate for
ascertaining their position.444
4.7.2 Rights of Archipelagic States

The UNCLOS, 1982 provides that the sovereignty of an
Archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with Article 47, described as
archipelagic waters, regardless of their depth or distance from the
coast.445 This sovereignty extends to the air space over the archipelagic
waters, as well as to their bed and subsoil and the resources contained
nearly enclosed by a chain of limestone islands and drying reefs lying on the
perimeter of the plateau.
149
therein.446 However, Archipelagic States shall exercise this sovereignty

subject to certain restrictions laid down in the Convention.447 Ships of
all States enjoy the right of innocent passage through the archipelagic
waters.448 However, the Archipelagic State may, without any
discrimination, suspend temporarily in specified areas of its
archipelagic waters, the innocent passage of foreign ships, if such
suspension is essential for the protection of its security. But such
suspension shall take effect only after a notice of it having been duly
published.449
4.7.3 Duties of Archipelagic States

The duties of the Archipelagic States with respect to their
archipelagic waters as mentioned in the UNCLOS, 1982 are enumerated
hereunder:
I. An Archipelagic State shall respect existing agreements with other
States and shall recognize traditional fishing rights and other legitimate
activities of the immediately adjacent neighboring States in certain
areas falling within archipelagic waters. The terms and conditions for
the exercise of such rights and activities, including the nature, the
extent and the areas to which they apply, shall, at the request of any of
the States concerned, be regulated by bilateral agreements between
them.450
II. An Archipelagic State shall respect existing submarine cables laid
by other States and passing through its archipelagic waters without
making a landfall. Further, an Archipelagic State shall permit the
maintenance and replacement of such cables upon receiving due notice
of their location and the intention to repair or replace them.451
III. An Archipelagic State may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of
foreign ships and aircraft through or over its archipelagic waters and
the adjacent territorial sea.452 All ships and aircrafts enjoy the right of

150
archipelagic sea lanes passage in such sea lanes and air routes.453 An
Archipelagic State designating sea lanes may also prescribe traffic
separation schemes for the safe passage of ships through narrow
passage in such sea lanes.454 Such sea lanes and traffic separation
schemes shall conform to the generally accepted international
regulations.455
4.8 LAND LOCKED STATES

There is a very important right of one State over another State’s
territory, i.e., the right of land locked States to and from the sea and the
concomitant rights of transit.456 A state whose boundaries are entirely
surrounded by land is called a land locked State. The UNCLOS, 1982
defines land locked State as “a state which has no sea coast”.457 Similar
definition has also been provided in the Convention on the Transit
453 Ibid. Article 53(2) of the UNCLOS, 1982. Article 53(3) provides that archipelagic
sea lanes passage means the exercise in accordance with this Convention of the
rights of navigation and over flight in the normal mode solely for the purpose of
continuous, expeditious and unobstructed transit between one part of the high
seas or an exclusive economic zone and another part of the sea or an exclusive
economic zone. Article 53(4) provides that such sea lanes and air routes shall
traverse the archipelagic waters and the adjacent territorial sea and shall include
all normal passage routes used as routes for international navigation or over
flight through or over archipelagic waters and within such routes, so far as ships
are concerned, all normal navigational channels, provided that duplication of
routes of similar convenience between the same entry and exit points shall not be
necessary. Article 53(5) provides that such sea lanes and air routes shall be
defined by a series of continuous axis lines from the entry point of passage
routes to the exit points. Ships and aircrafts in archipelagic sea lanes passage
shall not deviate more than 25 nautical miles to either side of such axis lines
during such passage, provided that such ships and aircrafts shall not navigate
closer to the coasts than 10 percent of the distance between the nearest points on
islands bordering the sea lane.
454 Ibid. Article 53(6) of the UNCLOS, 1982. Article 53(11) provides that ships in
archipelagic sea lanes passage shall respect applicable sea lanes and traffic
separation schemes established in accordance with this article.
455 Ibid. Article 53(8) of the UNCLOS, 1982. Article 53(12) provides that if an
archipelagic State does not designate sea lanes or air routes, the right of
archipelagic sea lanes passage may be exercised through the routes normally
used for international navigation.
457 Supra note 14. Article 124(1)(a) of the UNCLOS, 1982.
151
Trade of Land Locked States, 1965.458 There are 46 land locked States
and 2 doubly land locked States in the world. In view of their specific
geographical situation, they have been granted certain special rights
and privileges in accordance with the rules of modern International
Law. Rules regarding land locked States have been enacted under the
Geneva Convention on the High Seas, 1958, Convention on Transit
Trade of Land Locked States, 1965, and the UN Convention on the Law
of the Sea, 1982.459
The UNCLOS, 1982 provides that land locked States shall have the
right of access to and from the sea for the purpose of exercising the
rights provided for in this convention.460 To this end, such States shall
enjoy freedom of transit by all means of transport through the territory
of the transit States.461 The terms and modalities for exercising freedom
of transit shall be agreed between the land locked State and the transit
State through agreement.462 However, the transit States, in the exercise
of their full sovereignty over their territory, shall have the right to take
all measures to ensure that the rights and facilities provided for land
locked States shall in no way infringe their legitimate interests.463 The
458 Available at:

http://www.wipo.int/wipolex/en/other_treaties/text.jsp?file_id=200358 (Visited
on August 1, 2015). Article 1(a) of the Convention on the Transit Trade of Land
Locked States provides that the term land locked State means any contracting
State which has no sea coast.
459 Available at: https://en.wikipedia.org/wiki/Landlocked_country (Visited on
August 1, 2015).
460 Supra note 14. Article 125(1) of the UNCLOS, 1982. Article 3 of the Geneva
Convention on the High Seas, 1982, also made similar provisions.
461 Ibid. Article 124(1)(b) of the UNCLOS, 1982, provides that transit State means a
State, with or without a sea coast, situated between a land locked State and the
sea, through whose territory traffic in transit passes. Article 1(c) of the
Convention on the Transit Trade of Land Locked States, 1965, has also made
identical provisions.
463 Ibid. Article 125(3) of the UNCLOS, 1982. Similarly, Article 11(1) of the
Convention on the Transit Trade of Land Locked States, 1965, also provides that
no contracting State shall be bound by this Convention to afford transit to
persons whose admission into its territory is forbidden, or for goods of a kind of
which the importation is prohibited, either on grounds of public morals, public
health or security, or as a precaution against diseases of animals or against pests.
Article 11(4) further provides that nothing in this Convention shall prevent any
152
UNCLOS, 1982 further provides that traffic in transit shall not be

subject to any customs, duties, taxes or other charges except charges
levied for specific services rendered in connection with such traffic.464
Means of transport in transit and other facilities provided for and used
by land-locked States shall also not be subject to taxes and charges,
higher than those levied for the use of means of transport of the transit
States.465
For the convenience of traffic in transit, free zones or other customs
facilities may be provided at the ports of entry and exit in the transit
States by agreement between them and the land locked States.466 Transit
States and land locked States shall cooperate for providing adequate
means of transport if the means of transport in transit State are not
adequate.467 Transit States shall take all appropriate measures to avoid
delays or other difficulties of a technical nature in traffic in transit.468
Ships flying the flag of land locked States shall enjoy treatment equal
to that accorded to other foreign ships in maritime ports.469 The above
privileges have been provided for the land locked States so that they
may enjoy the freedom of the sea at par with the coastal States.
However, the UNCLOS, 1982 does not entail in any way, the
withdrawal of transit facilities which are greater than those provided for
in the Convention and which are agreed between State parties to this
contracting State from taking any action necessary for the protection of its
essential security interests.
464 Ibid. Article 127(1) of the UNCLOS, 1982. Article 3 of the Convention on the
Transit Trade of Land Locked States, 1965, has also made similar provisions.
465 Ibid. Article 127(2) of the UNCLOS, 1982. Article 4 of the Convention on the
Transit Trade of Land Locked States, 1965, has also made similar provisions.
466 Ibid. Article 128 of the UNCLOS, 1982. Article 8(1) of the Convention on the
Transit Trade of Land Locked States, 1965, has also made identical provisions.
Article 8(2) further provides that facilities of this nature may also be provided for
the benefit of land locked States in other transit States which have no sea coast or
seaports.
468 Ibid. Article 130(1) of the UNCLOS, 1982. Article 130(2) further provides that
should such delays or difficulties occur, the competent authorities of the transit
States and land locked States concerned shall cooperate towards their
expeditious elimination. Article 7 of the Convention on the Transit Trade of
Land Locked States, 1965, has also made similar provisions.
153
Convention or granted by a State party.470 This Convention also does

not preclude the grant of greater facilities in future.471
The above implies that the UNCLOS, 1982 stipulates the minimum
privileges which may be granted to the land locked States for the
freedom of transit. Other privileges may be granted through agreement
between the land locked States and the transit States. However, it may
reasonably be objected that the Convention does not bestow upon land
locked States any definite rights of transit. Much depends upon the
transit States acting in good faith in the implementation of Article
125.472
Due to their remoteness, landlocked countries are dependent on
neighboring transit countries for their external trade and suffer from
high trade transaction costs. Huge transport costs, inadequate
infrastructure and bottlenecks associated with importation and
exportation requirements can be a serious stumbling block to their
integration into the global economy, impairing export competitiveness
or the inflow of foreign investment. There are 31 landlocked
developing countries (LLDC’s) worldwide; 15 are located in Africa, 12
in Asia, 2 in Latin America and 2 in Central and Eastern Europe.473
Despite significant technological improvements in transport,
landlocked countries in Africa and Asia continue to be less developed
than countries that border the sea. While the poor economic
performance of landlocked countries is often solely attributed to
geographical distance from the coast, the situation is more complex.
Landlocked countries also face the challenges that result from their
dependence on passage through another country to access global
markets. Research carried out by the Earth Institute at Columbia
University and the United Nations Millennium Project attempts to
understand the nature of these challenges. Based on data from a number
of sources, the authors highlight the relatively low development levels
in landlocked developing countries and outline the problems they
face.474

471 Ibid.
473 Available at: http://www.gfptt.org/node/44 (Visited on October 1, 2014).
474 Available at: http://www.eldis.org/id21ext/u3mf2g1.html (Visited on October 1,
2014).
154
Overall, landlocked countries have lower levels of human

development and external trade compared with their maritime
neighbours. Nearly all landlocked countries export between twelve and
seventy percent less than maritime countries. Average GDP per capita
is approximately forty three percent lower, while life expectancy is
three and a half years lower than their neighbours with access to the
sea.475 The authors argue that the relatively worse performance of land
locked countries is strongly related to their dependence on other
countries’ transit routes for access to overseas markets. They identify
four issues that inhibit the economic development of landlocked
countries:476
I. Dependence upon transit neighbours’ infrastructure to transport
goods to port. This imposes direct costs on trade, particularly if the
transit country’s infrastructure is weak due to various factors like lack
of resources, poor governance, conflict or natural disasters.477
II. The political relationship between landlocked and transit countries.
If the two are in conflict, whether military or diplomatic, the transit
neighbour can easily block borders and obstruct trade.478
III. Vulnerability to civil conflict within transit countries. Civil conflict
can damage or close transit routes, which often means that trade
corridors have to be rerouted or even that transit is stopped.479
IV. High administrative costs due to transit, associated with border
crossings, heavy paperwork and bureaucratic procedures. These often
add the greatest amount to shipping costs.480
4.9 DEEP SEABED AND OCEAN FLOOR

Part XI of the UN Convention on Law of the Sea, 1982, deals with
the ‘Area’, i.e., the sea bed and ocean floor and the subsoil thereof; and
related provisions. It may be regarded as directed to the future
establishment of a deep sea bed mining regime (DSBMR). The abyssal
plain, the extremely flat area of the deep ocean floor lies beyond the
continental margin. Its depth varies from one point to another.
However, generally, it is in excess of 5000 meters depth. The deepest
475 Ibid.
476 Ibid.
477 Ibid.
478 Ibid.
479 Ibid.
480 Ibid.
155
point on Earth lies in the Western Pacific Ocean. It is named

Challenger Deep and has a depth of 11,000 meters. Huge quantities of
minerals are lying on the sea bed and ocean floor and the subsoil
thereof.481 If they are explored and exploited, they would be sufficient
for mankind for several decades to come. No doubt, it is very difficult
to exploit the resources of this area, but it has become possible to do so
for the developed States due to tremendous improvement in science and
technology. By the UNCLOS, 1982, for the first time, law has been
made primarily in order to explore the resources of the Area.482
4.9.1 International Seabed Area

The term Area has been defined under the UNCLOS, 1982 as “the
sea bed and ocean floor and subsoil thereof beyond the limits of
national jurisdiction”.483 Since the jurisdiction of a State extends to the
limit of the Continental Shelf, that part has been excluded from the
Area. Area, therefore, would be beyond the limits of the Continental
Shelf of the coastal States. The Convention declares that the Area and
its resources are the common heritage of mankind.484 Legal status of the
Area has also been expressly laid down in the Convention, which states
that “no State shall claim or exercise sovereignty or sovereign rights
over any part of the Area or its resources, nor shall any State or natural
or juridical person appropriate any part thereof. If any claim or exercise
of sovereignty or sovereign rights is made, it shall not be
recognized.”485 The Area shall be open to use exclusively for peaceful
purposes by all States, whether coastal or land locked.486

482 Ibid.
484 Ibid. Article 136 of the UNCLOS, 1982. Article 140(1) provides that activities in
the Area shall be carried out for the benefit of mankind as a whole, irrespective
of the geographical location of States (whether coastal or land locked) and taking
into particular consideration the interests and needs of developing States and of
people who have not attained full independence or other self governing status
recognized by the United Nations in accordance with General Assembly
resolution 1514 and other relevant General Assembly resolutions. Article 140(2)
provides that the International Seabed Authority shall provide for the equitable
sharing of financial and other economic benefits derived from activities in the
Area through an appropriate mechanism, on a non discriminatory basis, in
accordance with Article 160(2)(f)(i).
485 Ibid. Article 137(1) of the UNCLOS, 1982. Article 137(2) provides that all rights
in resources of the Area are vested in mankind as a whole, on whose behalf the
156
4.9.2 International Seabed Authority

The UNCLOS, 1982 provides for the establishment of an
International Seabed Authority.487 All State parties to the Convention
are ipso facto members of the Authority.488 The seat of the Authority is
at Jamaica.489 The Authority has been given the power to establish such
regional centers or offices as it deems necessary for the exercise of its
functions.490 The International Seabed Authority is the Organization
through which States Parties to the Convention carry out the activities
in the Area, particularly with a view to administering the resources of
the Area.491 The powers and functions of the Authority shall be those
which have been expressly conferred upon it by this Convention. The
Authority shall have such incidental powers, consistent with this
Convention, as are implicit in and necessary for the exercise of those
powers and functions with respect to activities in the area.492 The
Authority is based on the principle of the sovereign equality of all its
members.493 The principal organs of the Authority are Assembly,
Council, Secretariat494 and Enterprise.495 The Authority has been
empowered to establish such subsidiary organs as may be found
necessary.496 The principal organs of the Authority are discussed in
detail below:
International Seabed Authority shall act. These resources are not subject to
alienation. The minerals recovered from the Area, however, may only be
alienated in accordance with this Part and the rules, regulations and procedures
of the Authority. Article 137(3) provides that no State or natural or juridical
person shall claim, acquire or exercise rights with respect to the minerals
recovered from the Area except in accordance with this Part. No such claim,
acquisition or exercise of such rights shall be recognized.
157
4.9.2.1 The Assembly

The Assembly is the supreme organ of the Authority. The Assembly
consists of all members of the Authority. Each member has one
representative in the Assembly, who may be accompanied by alternates
and advisors.497 A majority of the members of the Assembly shall
constitute a quorum.498 Each member of the Assembly shall have one
vote.499 While decisions on questions of procedure are taken by a
majority of the members present and voting,500 decisions on questions
of substance are taken by two thirds majority of members present and
voting.501 The Assembly shall meet in regular annual sessions and in
such special sessions as may be decided by the Assembly, or convened
by the Secretary General at the request of the Council or of a majority
of the members of the Authority.502 The Assembly held its First Session
on November 16, 1994, the day on which the Convention came into
force. Following are the powers and functions of the Assembly:
I. The Assembly shall have the power to establish general policies in
conformity with the relevant provisions of this Convention on any
question or matter within the competence of the International Seabed
Authority.503
II. The Assembly shall elect the members of the Council504 and the
Secretary General from amongst the candidates proposed by the
Council.505 It also elects, upon the recommendations of the Council, the
members of the Board of the Enterprise and the Director General of the
Enterprise.506
III. It may establish subsidiary organs as it finds necessary for the
exercise of its functions.507 The Assembly also decides upon the

506 Ibid. Article 160(2)(c) of the UNCLOS, 1982.
507 Ibid. Article 160(2)(d) of the UNCLOS, 1982.
158
equitable sharing of financial and other economic benefits derived from

activities in the Area.508
IV. The Assembly shall initiate studies and make recommendations for
the purpose of promoting international cooperation concerning
activities in the Area and encouraging the progressive development of
international law relating thereto and its codification.509
V. The Assembly is empowered to suspend the exercise of rights and
privileges of membership pursuant to Article 185.510
VI. The Assembly is empowered to discuss any question or matter
within the competence of the International Seabed Authority and to
decide as to which organ of the Authority shall deal with any such
question or matter not specifically entrusted to a particular organ.511
4.9.2.2 The Council

The Council is the executive organ of the International Seabed
Authority. It consists of 36 members of the Authority elected by the
Assembly.512 In electing the members of the Council, the Assembly
shall ensure that land locked and geographically disadvantaged States
are represented to a degree which is reasonably proportionate to their
representation in the Assembly.513 Members of the Council shall be
elected for a period of four years.514 They are eligible for re election,
but due regard should be paid to the desirability of rotation of
membership.515 A majority of the members of the Council shall
constitute a quorum.516 Each member of the Council has one vote.517
While decisions on questions of procedure are taken by a majority of
the members, decisions on questions of substance are taken by two
508 Ibid. Article 160(2)(g) of the UNCLOS, 1982.

509 Ibid. Article 160(2)(j) of the UNCLOS, 1982.
510 Ibid. Article 160(2)(m) of the UNCLOS, 1982.
511 Ibid. Article 160(2)(n) of the UNCLOS, 1982.
159
third majority of the members present and voting.518 Following are the
powers and functions of the Council:
I. The Council shall have the power to enact the specific policies to
be pursued by the International Seabed Authority on any question or
matter within the competence of the Authority.519
II. The Council shall supervise and coordinate the implementation of
the provisions of Part XI on all questions and matters within the
competence of the International Seabed Authority and invite the
attention of the Assembly to cases of non compliance.520
III. The Council shall propose to the Assembly a list of candidates for
the election of the Secretary General.521 The Council shall also
recommend candidates to the Assembly for the election of the members
of the Governing Board of the Enterprise and the Director General of
the Enterprise.522
IV. The Council may establish such subsidiary organs as it finds
necessary for the exercise of its functions.523
V. The Council may issue emergency orders, which may include
orders for the suspension or adjustment of operations, to prevent
serious harm to the marine environment arising out of activities in the
Area.524
VI. The Council may disapprove areas for exploitation in cases where
substantial evidence indicates the risk of serious harm to the marine
environment.525
4.9.2.3 The Secretariat

The Secretariat of the International Seabed Authority shall comprise
a Secretary General and such staff as the Authority may require.526 The
Secretary General shall be elected for four years by the Assembly from
among the candidates proposed by the Council and is eligible for re

522 Ibid. Article 162(2)(c) of the UNCLOS, 1982.
523 Ibid. Article 162(2)(d) of the UNCLOS, 1982.
524 Ibid. Article 162(2)(w) of the UNCLOS, 1982.
525 Ibid. Article 162(2)(x) of the UNCLOS, 1982.
160
election.527 The Secretary General shall be the Chief Administrative

Officer of the International Seabed Authority. He shall act in that
capacity in all meetings of the Assembly, the Council and of any
subsidiary organ. He shall also perform such other administrative
functions as are entrusted to him by these organs.528
4.9.2.4 The Enterprise

The Enterprise shall be the organ of the Authority which shall carry
out activities in the Area directly, as well as the transporting,
processing and marketing of minerals recovered from the Area.529 The
Enterprise shall act in accordance with this Convention and the rules,
regulations and procedures of the International Seabed Authority, as
well as the general policies established by the Assembly. It shall be
subject to the directives and control of the Council.530 It shall have its
principal place of business at the seat of the Authority.531
4.9.3 Deep Sea Mining and USA

USA and some other industrialized countries have not signed the
UNCLOS, 1982, because they think that the provisions of Part XI of the
Convention dealing with Area should be modified so that they should
have less obligations and more rights. On 10th December 1982, at the
signing ceremony of the UN Convention on Law of the Sea, 1982, the

528 Ibid. Article 166(3) of the UNCLOS, 1982. Article 169(1) provides that the
Secretary General shall, on matters within the competence of the Authority,
make suitable arrangements, with the approval of the Council, for consultation
and cooperation with international and nongovernmental organizations
recognized by the Economic and Social Council of the United Nations. Article
169(2) provides that any organization with which the Secretary General has
entered into an arrangement may designate representatives to attend meetings of
the organs of the International Seabed Authority as observers in accordance with
the rules of procedure of these organs. Article 169(3) provides that the Secretary
General may distribute to the State parties written reports submitted by the
nongovernmental organizations referred to in Article 169(1) on subjects in which
they have special competence and which are related to the work of the
International Seabed Authority.
529 Ibid. Article 170(1) of the UNCLOS, 1982. Article 1(1) of Annex IV of the
UNCLOS, 1982.
530 Ibid. Article 170(2) of the UNCLOS, 1982. Articles 1(2) and 2(1) of Annex IV of
the UNCLOS, 1982.
161
USA stated that “under the circumstances, alternative ways of

preserving national access to deep seabed resources are necessary, just
and permitted by international law.”532 USA was referring to the
doctrine of the freedom of the high seas, under which it preferred to
stake claim to deep seabed resources. It also referred to the Deep
Seabed Hard Mineral Resources Act, enacted by the American
Congress in June 1980. However, many States challenged this
statement on the ground that a nation cannot legally stake a claim to
deep sea minerals which were declared by the Convention as the
common heritage of mankind.533
Mr. TTB Koh, President of the third UN Conference on Law of the
Sea, summed up the views of a majority of States on this issue in the
following words, “speakers from every regional and interest group,
expressed the view that the doctrine of the freedom of the high seas can
provide no legal basis for the grant by any State of exclusive title to a
specific mine site in the international area of the seabed. Any attempt
by any State to mine the resources of the deep seabed outside the
Convention will earn the universal condemnation of the international
community and will incur grave political and legal consequences. Thus,
the decision of USA and some other countries to not to join the
Convention deserves condemnation by all alike, more so because USA
had taken very active and keen interest at all stages and made a
significant contribution in evolving the package on which the
Convention is based.”534
4.10 PROTECTION AND PRESERVATION OF ENVIRONMENT

The UNCLOS, 1982 provides that States have the obligation to
protect and preserve the marine environment.535 It further declares that
States have the sovereign right to exploit their natural resources
pursuant to their environmental policies and in accordance with their
duty to protect and preserve the marine environment.536 It imposes
duties on States, individually or jointly, as appropriate, to take
measures to prevent, reduce and control pollution of the marine

533 Id., at 296.
534 Ibid.
162
environment.537 States shall co operate on a global basis and as

appropriate, on a regional basis, directly or through competent
international organizations, in formulating and elaborating international
rules, standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the marine
environment, taking into account characteristic regional features.538
States are responsible for the fulfillment of their international
obligations concerning the protection and preservation of the marine
environment. They shall be liable in accordance with International
Law.539
4.11 SETTLEMENT OF DISPUTES

The UN Convention on Law of the Sea, 1982, lays down provisions
for the settlement of disputes concerning the interpretation or
application of the Convention under Part XV. The State parties are
under an obligation to settle any dispute between them by peaceful
means in accordance with Article 2(3) of the Charter of the United
Nations.540 They may agree to settle a dispute between them concerning
the interpretation or application of this Convention by any peaceful
means of their own choice.541 The Convention has also made provisions
dealing with obligation to exchange views542 and the option of
537 Ibid. Article 194(1) of the UNCLOS, 1982, provides that States shall take,
individually or jointly, as appropriate, all measures consistent with this
Convention that are necessary to prevent, reduce and control pollution of the
marine environment from any source, using for this purpose the best practicable
means at their disposal and in accordance with their capabilities, and they shall
endeavour to harmonize their policies in this connection. Article 195 provides
that in taking measures to prevent, reduce and control pollution of the marine
environment, States shall act so as not to transfer, directly or indirectly, damage
or hazards from one area to another or transform one type of pollution into
another. Article 196(1) provides that States shall take all measures necessary to
prevent, reduce and control pollution of the marine environment resulting from
the use of technologies under their jurisdiction or control, or the intentional or
accidental introduction of species, alien or new, to a particular part of the marine
environment, which may cause significant and harmful changes thereto.
542 Ibid. Article 283(1) of the UNCLOS, 1982, provides that when a dispute arises
between State parties concerning the interpretation or application of this
163
conciliation.543 However, a dispute settlement procedure agreed upon

by a general, regional or bilateral agreement shall prevail over the
procedures prescribed in this Convention.544 If the parties fail to settle
their dispute by the above mentioned means, it shall be submitted at the
request of any party to the Court or Tribunal having jurisdiction under
Article 287.545 In the event of a dispute as to whether a Court or
Tribunal has jurisdiction, the matter shall be settled by decision of that
Court or Tribunal.546 A Court or Tribunal having jurisdiction shall apply
Convention, the parties to the dispute shall proceed expeditiously to an exchange

of views regarding its settlement by negotiation or other peaceful means. Article
283(2) provides that the parties shall also proceed expeditiously to an exchange
of views where a procedure for the settlement of such a dispute has been
terminated without a settlement or where a settlement has been reached and the
circumstances require consultation regarding the manner of implementing the
settlement.
543 Ibid. Article 284(1) of the UNCLOS, 1982, provides that a State party which is a
party to a dispute concerning the interpretation or application of this Convention
may invite the other party or parties to submit the dispute to conciliation in
accordance with the procedure under Annex V, Section 1, or another conciliation
procedure. Article 284(2) provides that if the invitation is accepted and if the
parties agree upon the conciliation procedure to be applied, any party may
submit the dispute to that procedure. Article 284(3) provides that if the invitation
is not accepted or the parties do not agree upon the procedure, the conciliation
proceedings shall be deemed to be terminated. Article 284(4) provides that unless
the parties otherwise agree, when a dispute has been submitted to conciliation,
the proceedings may be terminated only in accordance with the agreed
conciliation procedure.
544 Ibid. Article 282 of the UNCLOS, 1982, provides that if the State parties which
are parties to a dispute concerning the interpretation or application of this
Convention have agreed through a general, regional or bilateral agreement or
otherwise, that such dispute shall, at the request of any party to the dispute, be
submitted to a procedure that entails a binding decision, that procedure shall
apply in lieu of the procedures provided for in this Part, unless the parties to the
dispute otherwise agree.
545 Ibid. Article 286 of the UNCLOS, 1982. Article 287(1) provides that when
signing, ratifying or acceding to this Convention or at any time thereafter, a State
shall be free to choose, by means of a written declaration, one or more of the
following means for the settlement of disputes concerning the interpretation or
application of this Convention, i.e., (a) The International Tribunal for the Law of
the Sea established in accordance with Annex VI; (b) The International Court of
Justice; (c) An Arbitral Tribunal constituted in accordance with Annex VII; (d)
A Special Arbitral Tribunal constituted in accordance with Annex VIII for one or
more of the categories of disputes specified therein.
164
this Convention and other rules of International Law not incompatible

with this Convention.547 Any decision rendered by a Court or Tribunal
having jurisdiction shall be final and shall be complied with by all the
parties to the dispute.548 However, such decision shall have no binding
force except between the parties and in respect of that particular
dispute.549
4.11.1 International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea is one of the
tribunals which has jurisdiction to decide the disputes concerning the
interpretation or application of the UN Convention on the Law of the
Sea, 1982. The Convention having come into force on 16th November
1994, vigorous efforts were made to establish the International Tribunal
for the Law of the Sea. The Tribunal was established on 21st October
1996. The Tribunal has been established in accordance with the Statute
of the International Tribunal for the Law of the Sea, which is an
integral part of the Convention and forms Annex VI thereto.550 The seat
of the Tribunal shall be at the free and hanseatic city of Hamburg in the
Federal Republic of Germany.551 However, the Tribunal may sit and
exercise its functions elsewhere whenever it considers this desirable.552
4.11.1.1 Composition and Membership

The Tribunal comprises of a body of 21 independent members who
are elected from among persons enjoying the highest reputation for
fairness and integrity and of recognized competence in the field of the
law of the sea.553 The representation of the principal legal systems of
the world and equitable geographical distribution is assured.554 No two
members of the Tribunal may be nationals of the same State.555 Each
State party may nominate up to two persons for membership of the
Tribunal. Members of the Tribunal shall be elected from the list of

551 Supra note 14. Article 1(2) of Annex VI of the UNCLOS, 1982.
552 Ibid. Article 1(3) of Annex VI of the UNCLOS, 1982.
165
persons thus nominated.556 Members are elected by the States Parties by

secret ballot557 for nine years and are eligible for re election.558
Members of the Tribunal shall elect a President and a Vice President
for three years, who shall be eligible for re election.559 A quorum of
eleven members shall be required to constitute the Tribunal.560
4.11.1.2 Access and Jurisdiction

The Tribunal shall be open to all State parties.561 It shall also be open
to entities other than State parties in any case expressly provided for in
Part XI of the UNCLOS, 1982, or in any case submitted pursuant to any
other agreement conferring jurisdiction on it which is accepted by all
the parties to that case.562 Jurisdiction of the Tribunal comprises all
disputes and all applications submitted to it in accordance with the
UNCLOS, 1982 and all matters specifically provided for in any other
agreement which confers jurisdiction on the Tribunal.563 All questions
shall be decided by a majority of the members of the Tribunal who are
present.564 In the event of an equality of votes the President or the
member of the Tribunal who acts in his place shall have a casting
vote.565
4.11.1.3 Seabed Disputes Chamber

The UNCLOS, 1982 provides that the establishment of the Seabed
Disputes Chamber and the manner in which it shall exercise its
jurisdiction shall be governed by the provisions of Section 5 of Part XI,
Part XV and Annex VI of the Convention.566 It further provides that a
Seabed Disputes Chamber shall be established in accordance with the
provisions of Section 4 of Annex VI (containing Articles 35 to 40). Its

563 Ibid. Article 21 of Annex VI of the UNCLOS, 1982.
565 Ibid. Article 29(2) of Annex VI of the UNCLOS 1982.
166
jurisdiction, powers and functions shall be as provided for in Part XI.567

It shall comprise of eleven members selected by a majority of the
elected members of the Tribunal from among them.568 They shall be
selected every three years and may be selected for a second term.569 A
quorum of seven members shall be required to constitute the
Chamber.570 The decisions of the Chamber shall be enforceable in the
territories of the State parties in the same manner as judgments or
orders of the highest Court of the State party in whose territory the
enforcement is sought.571
4.11.1.4 Special Chambers

The Tribunal has formed standing Special Chambers in 1997 for
dealing with fisheries cases and for dealing with marine environment
disputes. In 2007, a Special Chamber was formed to deal with maritime
delimitation disputes pursuant to Article 15(1) of the Statute of the
Tribunal.572 Any judgment rendered by these Chambers is considered to
have been rendered by the Tribunal.573 The Tribunal has also framed
Rules for their functioning which were adopted on October 28, 1997.
The Convention also makes provisions for the formation of an ad hoc
chamber.574

572 Ibid. Article 15(1) of Annex VI of the UNCLOS, 1982, provides that the Tribunal
may form such chambers, composed of three or more of its elected members, as
it considers necessary for dealing with particular categories of disputes. Article
15(2) further provides that the Tribunal shall form a chamber for dealing with a
particular dispute submitted to it if the parties so request. The composition of
such a chamber shall be determined by the Tribunal with the approval of the
parties.
574 Ibid. Article 36(1) of Annex VI of the UNCLOS, 1982, provides that The Seabed
Disputes Chamber shall form an ad hoc chamber, composed of three of its
members, for dealing with a particular dispute submitted to it in accordance with
Article 188(1)(b) of the Convention. The composition of such a chamber shall be
determined by the Seabed Disputes Chamber with the approval of the parties.
167
4.11.2 Cases Decided by the Tribunal

The International Tribunal for the Law of the Sea has decided 24
cases from the date of its establishment. On December 4, 1997, almost
immediately after the adoption of the Rules of the Tribunal, the first
case i.e., the MV Saiga Case (Saint Vincent and the Grenadines vs.
Guinea) was decided by the Tribunal.575 In this case the applicant Saint
Vincent and the Grenadines instituted the proceedings against the
Government of Guinea for the arrest of the merchant ship Saiga off the
coast of West Africa and asked the Tribunal to determine that the
vessel, its cargo and the crew be released immediately without
requiring that any bond be provided. The Guinea, the respondent, stated
that as it has committed no illegal act and has not violated the
procedure, the Tribunal should dismiss the Applicant’s action. The
Tribunal decided by 12 votes to 9 that Guinea shall promptly release the
MV Saiga and its crew from detention. However, the release shall be
upon the posting of a security consisting of the amount of gasoil
discharged from the MV Saiga and the amount of 4,00,000 United
States dollars, to be posted in the form of a letter of credit or bank
guarantee, or, if agreed by the parties, in any other form.576
575 Available at: https://www.itlos.org/cases/ (Visited on August 28, 2015). Instances

of other cases decided by the Tribunal are Southern Bluefin Tuna cases (New
Zealand vs. Japan and Australia vs. Japan) (August 3, 1999); Camouco (Panama
vs. France (February 7, 2000) wherein it gave an order to France to release the
ship to Panama which was seized by French authorities for illegal fishing. The
ship was detained at Reunion Island since September, 1999. Monte Confurco
Case (Seychelles vs. France), Prompt Release (December 18, 2000); Grand
Prince Case (Belize vs. France), Prompt Release (April 20, 2001); Case
Concerning Land Reclamation by Singapore in and around the Straits of Johor
(Malaysia vs. Singapore), Provisional Measures (October 8, 2003); Juno Trader
case (Saint Vincent and the Grenadines vs. Guinea Bissau), Prompt Release
(December 18, 2004); Dispute concerning the delimitation of the boundary
between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh vs.
Myanmar) (March 14, 2012); The Arctic Sunrise Case (Kingdom of the
Netherlands vs. Russian Federation), Provisional Measures (November 22,
2013); Dispute Concerning Delimitation of the Maritime Boundary between
Ghana and Cote d’Ivoire in the Atlantic Ocean (Ghana/Cote d’Ivoire), (April 25,
2015); The Enrica Lexie Incident (Italy vs. India) (Provisional Measures)
(August 24, 2015).
576 Available at: http://www.itlos.org/index.php?id=59 (Visited on October 1, 2014).
168
4.12 SOUTH CHINA SEA MARITIME DISPUTE

The South China Sea is a marginal sea577 encompassing an area of
around 35,00000 square kilometers.578 It extends from the Straits of
Malacca in the southwest to the Straits of Taiwan in the northeast. Over
500 million people in China, Taiwan, the Philippines, Malaysia, Brunei,
Indonesia, Singapore, Cambodia, Thailand, and Vietnam live within
100 miles of its coastline. It has a remarkable amount of biological
diversity, including over 30% of the world’s coral reefs and many
valuable fisheries. It is also thought to contain abundant reserves of oil
and natural gas, a prospect of vital interest to the energy importing
countries around the region.579 The South China Sea is semi enclosed,
as defined in Article 122 of the UN Convention on the Law of the Sea,
1982. It includes 15 islands of the Paracel archipelago, 45 islands and
numerous reefs and rocks of the Spratly archipelago, the Macclesfield
bank and three islands of the Pratas group. The southern reaches extend
to the Sunda Shelf, which is shallow, less than 200 meters deep, but the
Palawan Trough at its south eastern flank is deeper, dropping below
2000 meters.580 The dispute concerns the sovereignty over the islands
577 In oceanography, a marginal sea is defined as a sea partially enclosed

by islands, archipelagos, or peninsulas, adjacent to the open ocean at the surface,
and/or bounded by submarine ridges on the sea floor.
578 Available at: http://en.wikipedia.org/wiki/South_China_Sea (Visited on October
5, 2014).
579 Available at: http://www.southchinasea.org/introduction/ (Visited on October 5,
2014).
580 Leszek Buszynski, “The Development of the South China Sea Maritime Dispute”
National Security College Occasional Paper, Australian National University,
(2013). Available at: http://nsc.anu.edu.au/documents/occasional-5-brief-1.pdf
(Visited on October 5, 2014). The UN Convention on Law of the Sea may
contribute to a solution, but it has also contributed to the scramble for maritime
territory and resources. UNCLOS allows each littoral state to claim an Exclusive
Economic Zone of 200 nautical miles, and a Continental Shelf, and specifies that
islands can generate their own EEZ’s or continental shelves. However, what the
claimants may be entitled to by asserting sovereignty over islands will be limited
by UNCLOS, since not all islands can generate EEZ’s or continental shelves. In
Article 121(3), UNCLOS distinguishes between islands and rocks or reefs, which
cannot generate EEZ’s or continental shelves, but which are entitled to a 12
nautical mile territorial sea. Islands may not be entitled to full maritime zones in
certain situations where they are close to continental land masses. Coastline
length may be used to determine entitlement to the maritime zones of occupied
islands, in which case the Philippines and Vietnam would benefit more than
169
and the surrounding sea territory, involving China, Taiwan and five
ASEAN (Association of South East Asian Nations) countries, i.e.,
Vietnam, Philippines, Malaysia, Brunei and Indonesia. China and
Vietnam have extensive claims over the area, which are largely
undefined, while the Philippines, Malaysia, Brunei, Indonesia and
Taiwan claim contiguous sea zones. The dispute involves complicated
issues relating to UNCLOS which does not offer clear guidelines in
situations where claims to sea territory, islands, and Exclusive
Economic Zones overlap.581
4.12.1 Factors Involved in the Dispute

The following important factors are involved in this dispute:
4.12.1.1 Oil and Gas Reserves

The competition for oil and gas became an important factor in the
dispute in the 1970’s. Surveys undertaken in 1969 indicated reserves of
oil and gas, but the technology for off shore drilling at depths below
600 meters where the reserves were located was only developed in the
late 1970’s.582 The 1973–74 oil stocks were a stimulus to exploration in
the area, and in March 1976 the first commercial field began operation
off the Philippine island of Palawan at Reed Bank, involving a
consortium of three Swedish and seven Philippine companies.
Malaysia’s Petronas is the major oil producer in the area, and in 2011, it
produced 5,00000 barrels a day (bd) and 600 billion m3 of natural gas.
Petro Vietnam in 2011 produced 3,00000 bd of oil and 100 billion m3 of
natural gas. China’s off shore fields are located in the Pearl River basin
and it is not yet a producer in the disputed area.583 Because existing
fields are being depleted, the demand for energy has increased and both
Petronas and Petro Vietnam are obliged to tap new reserves, which
could raise tensions with China. In 2011, China’s oil imports accounted
for about 54
percent of its total demand and its interest in the oil and natural gas
resources of the South China Sea has grown considerably. The US
Energy Information Administration (EIA) says that there is little
China. UNCLOS does not significantly benefit China in this matter, which has
sought alternative ways of validating its claim to the area.
581 Ibid.
582 Ibid.
583 Ibid.
170
evidence outside of Chinese claims to support the view that the region
contains substantial oil resources. It claims that the area around the
Spratly Islands has virtually no proven oil reserves and estimates that
about 60 to 70 percent of the region’s hydrocarbon resources are natural
gas.584
4.12.1.2 Fish Stocks

Access to fish stocks of the area is another factor in the dispute. The
South China Sea is one of the world’s richest fishing regions, regarded
by Chinese and Vietnamese fishermen as a traditional fishing zone. The
University of British Columbia’s Fisheries Center estimated that catch
statistics in the South China Sea have increased from 4.7 million tons in
1994 to 5.6 million tons in 2003, averaging about 5 million tons. The
UN has warned that global fish stocks are in jeopardy as demand rises,
which intensifies the competition to exploit the fisheries of the area.
The fish stocks of the area have been over exploited and catch rates
have been declining, resulting in smaller fish sizes and the gradual
move from large, high value fish to smaller, low value fish.
Competition for access in a situation of declining fish stocks has been
one reason for the recent clashes that have occurred in the area. As the
livelihood of local fishermen is threatened, host countries offer support
from naval or coastguard vessels, which has resulted in a number of
tense incidents.585
4.12.1.3 Strategic Value

The South China Sea embraces some of the world’s busiest sea
lanes, which link Northeast Asia to the Indian Ocean and the Middle
East. It has been estimated that over half of the world’s annual
merchant fleet tonnage passes through this area.586 Oil imported by
Japan, South Korea, Taiwan and Southern China is shipped through the
Malacca Straits and the South China Sea, giving it a special strategic
significance. As Northeast Asian trade increases, so does the
importance of this area. Control of the South China Sea by a hostile
power would be a major interruption to shipping and trade and would
require rerouting though alternative straits further west, adding to
584 Ibid.
585 Ibid.
586 Ibid.
171
shipping costs. For these reasons, external powers such as the United
States and Japan seek to maintain freedom of navigation through the
area, which means preventing control by one power, particularly a
potentially hostile one.587
China has been very sensitive to foreign penetration of the area that
could threaten its sea lanes, and was disturbed by French activity in the
area in the early twentieth century. It was also alarmed by Soviet
movements in the South China Sea, the Soviet alliance with Vietnam in
November 1978, and Soviet use of Cam Ranh Bay, beginning in March
1979. The Chinese economy has become vulnerable to external
disruption of oil and energy supplies, obliging its leaders to protect its
extended trade routes and energy access routes, as 54 percent of its
crude oil is imported from countries in the Middle East. China’s trade
routes run through the Indian Ocean and the Malacca Straits, through
which an estimated 80 percent of its oil imports are shipped. These
routes are vulnerable to interdiction by India and the United States in
time of conflict, and both may hold China to ransom by blocking
China’s oil supplies.588
To protect its sea lanes and access to imported fuel, China is obliged
to develop a naval capability, including aircraft carriers and
accompanying escorts capable of reaching as far as the Indian Ocean.
This naval capability would best be deployed in a way that would allow
it access to the southwest, making the Hainan area and the South China
Sea most suitable. Moreover, the South China Sea will become a base
for China’s second strike submarine adapted nuclear capability
intended to deter the United States from risking conventional conflict
with China over Taiwan or any other issue.589 For strategic reasons, the
Chinese Navy seeks control over the area and acts to prevent the United
States from establishing a presence there that could threaten it.590
4.12.1.4 China’s Historical Rights

China has continued to assert its historical rights over the South
China Sea. The Chinese often declare that their historical notions of
sovereignty predate Western International Law and should be
587 Ibid.
588 Ibid.
589 Ibid.
590 Ibid.
172
recognized as valid ab initio. China further argues that UNCLOS

cannot be applied to the South China Sea since China had indisputable
sovereignty over the area to begin with. However, China’s attempt to
cite ancient records as a basis for sovereignty conflicts with
International Law.591 Justice Max Huber’s tests enunciated in the Island
of Palmas Case (United States of America vs. The Netherlands)592 noted
that “any rights obtained from history may be lost if not maintained in
accordance with the changes brought about by the development of
modern International Law”.593
On 5th August 2015, Chinese Foreign Minister Wang Yi issued a
statement on behalf of the Chinese Government that China had halted
land reclamation in the South China Sea and called on countries in the
region to speed up talks on how claimant States should conduct
themselves in the disputed waters. Wang’s remarks at a regional
meeting in Kuala Lumpur, Malaysia, appeared designed to defuse
tensions with other countries that lay claims to parts of the South China
Sea. He further remarked that China is always committed to working
with the countries concerned to resolve all disputes through peaceful
negotiation. However, at the same meeting, Philippines Foreign
Ministry spokesperson Charles Jose countered Wang Yi’s statement
and remarked that China had stopped reclamation because it has
already formed its new islands.594
4.13 EAST CHINA SEA MARITIME DISPUTE

The East China Sea is a marginal sea situated east of China. It is a
part of the Pacific Ocean and covers an area of 12,49,000 square
kilometers. It is bounded on the east by the Kyushu and the Ryukyu
Islands of Japan, on the south by the South China Sea, and on the west
by China and South Korea. It connects with the Sea of Japan through
the Korea Strait; and it opens in the north to the Yellow Sea.595 China is
involved in a maritime dispute in the East China Sea with Japan, which
591 Ibid.
592 Permanent Court of Arbitration, 1928.
593 Available at: http://legal.un.org/riaa/cases/vol_II/829-871.pdf (Visited on August
2, 2015).
594 Reuters, “Reclamation work stopped in South China Sea” The Tribune, August 6,
2015.
595 Available at: http://en.wikipedia.org/wiki/East_China_Sea (Visited on October 5,
2014).
173
has become a potential hotspot in the Asia Pacific region. Despite the
fact that it does not involve multiple claimants like in the South China
Sea dispute, this particular issue has drawn international attention and
has become as complicated as the SCS dispute. It has abundant oil and
natural gas resources. The US Energy Information Administration
estimates that the East China Sea has between 60 and 100 million
barrels of oil. China and Japan claim indisputable sovereignty over the
islands known as Senkaku in Japan and Diaoyu in China (Tiaoyutai in
Taiwan). Considering the geostrategic and geopolitical importance of
the region, the issue has pulled other players like the US and Taiwan
into the dispute.596
4.13.1 Historical Claims of China and Japan

China claims the disputed islands on historical grounds. It asserts
that the Ming Dynasty annexed these islands as early as in the year
1403 as part of its maritime territory. Qing dynasty went further and
placed it under the jurisdiction of Taiwan, which was a part of the
Chinese Empire. Japan argues that the islands were uninhabited and
hence it incorporated them as a vacant territory (terra nullius) in 1895,
claiming them as a part of Nansei Shoto south western island group.
The islands were annexed by Japan under the treaty of Shimonoseki,
ending the Sino Japanese war in 1895. China considers this treaty as
one of the many unequal treaties forced on it by foreign powers, in the
same way as it was made to cede Taiwan to Japan. According to China,
the islands together with Taiwan were forcibly taken from it during the
war.597 Referring to the return of territories as per the Cairo Declaration
of 1943, Diaoyu islands were to be returned to China by 1945. Beijing
considers the islands as having been illegally put under US control after
the 1951 San Francisco Treaty and the US-Japan alliance, as the US
also took full control over the Diaoyu/Senkaku islands without taking a
stance on their ultimate sovereignty.598
China State Council Information Office, in its recent White Paper,
refers to the treaty of San Francisco, as a “backroom deal” between the
US and Japan that was illegal and invalid. The US returned the islands
596 Teshu Singh, “China and Japan: Tensions in East China Sea”, 198 IPCS Issue
Brief 1 (2012). Available at: http://www.ipcs.org/issue-brief/east-asia/china-
japan-tensions-in-east-china-sea-198.html (Visited on October 5, 2014).
597 Ibid.
598 Ibid.
174
to Japan in 1971 along with Okinawa. The Okinawa Reversion treaty is

a security treaty that applies to the Senkaku islands as well. In
December of the same year, China’s Ministry of Foreign Affairs
denounced the agreement as utterly illegal. China asserts that it has
strong historical claims while Japan claims a de facto occupation
between 1895 and 1945 and since 1971.599
4.13.2 Legal Claims

The issue is further complicated by different approaches to
demarcate the sea boundary and different interpretations of the
UNCLOS in the East China Sea. Japan defines its boundaries as the
EEZ extending westward from its southern Kyushyu and Ryukyu
Islands. On the other side, China defines its boundaries using the
UNCLOS principle of the natural extension of its continental shelf.
China has not taken an official position on the status of the
Diaoyu/Senkaku as rocks or islands. This has created overlapping
claims of nearly 81,000 square miles. According to China’s position,
the continental shelf in the East China Sea, which stretches from
China’s coasts right up to Japan, should be regarded as the natural
prolongation of the continental territory of China and therefore belong
to it. According to Japan’s position, the continental shelf should be
divided along the median line between the baselines for measuring the
territorial seas of the two countries.600
4.13.3 Economic and Strategic Value

These islands are important from the point of view of economic
benefits and strategic location. As far as the economic benefits are
concerned, both would like to extract the huge reserves of minerals, oil
and natural gas from underneath the islands.601 As far as the strategic
position is concerned, if the Japanese retain the islands, they can set up
air and sea surveillance reconnaissance systems, and shore based anti
ship to air missiles on the islands. By doing so, Japan could put a
blockade to all the ports and air routes emanating from northern
Taiwan, and also put areas such as Fuzhou, Wenzhou and Ningbo in
mainland China under its radar. China would be very apprehensive of
every move of the Japanese if they decide to go ahead with this plan.
599 Ibid.
600 Ibid.
601 Ibid.
175
Therefore, the establishment of military bases and the deployment of

heavy weaponry on the island will pose a serious threat to China’s
national defence and security, argues China.602
4.13.4 Mediation Efforts

China and Japan began holding bilateral talks about the East China
Sea issues in October 2004, although Taiwan did not participate. Japan
has repeatedly requested seismic data from China on Okinawa trough
fields and has asked China to stop production until both sides reach an
agreement. China has consistently rejected this request, insisting that
the trough and its associated fields are within its jurisdiction. The two
sides have considered joint development of the resources as a means of
moving forward with energy exploration but have not yet agreed on
what area such development would cover. In 2008, China and Japan
agreed to explore four gas fields in the East China Sea and halt
development in other contested parts of the regions. Both sides agreed
to conduct joint surveys, with equal investment in an area north of the
Chunxiao/Shirakaba gas field and south of the Longjing/Asunaro gas
field. However, China began to develop the Tianwaitian/Kashi gas field
unilaterally, eliciting a protest from Japan in January 2009. To date, no
joint development has actually occurred.603
602 Ibid.
603 Available at:
http://www.eia.gov/countries/analysisbriefs/east_china_sea/east_china_sea.pdf
176
CHAPTER  V:
LAW OF SEA:
INDIAN SCENARIO
“National greatness is inextricably associated with the Sea; with
its commercial usage in times of Peace and its control in times of
War”.
Rear Admiral Alfred Thayer Mahan (United States Navy) 604

Even after sixty five years of the coming into force of the
Constitution of India, there are areas of jurisprudence in which issues
regarding the jurisdiction of Courts as well as issues regarding the law
applicable thereto remain unclear, incomplete and unsatisfactory. One
such area is the law relating to admiralty and maritime matters. While
there are statutes relating to some aspects of this field of jurisprudence,
there is a vast grey area which calls for legislative action. The terms
“admiralty law” and “maritime law” have been regarded as almost
synonymous in the English speaking world of merchant shipping,
particularly in the context of what prevails in the United Kingdom and
the United States of America. However, maritime law stands for wider
and more descriptive reference, whereas admiralty law refers to the law
administered in Courts. Maritime law developed out of the conduct of
sea transport which is as old as the human civilization itself. The ship
has been described as the last relic of barbarism and the first relic of
civilization.605
Throughout the world, the admiralty jurisprudence system was
brought by British settlers along with common law and equity, and
Courts for the administration of maritime law were commissioned in
almost all the colonies. These admiralty Courts continued to exercise
604 Available at:

https://www.goodreads.com/author/quotes/4090051.Alfred_Thayer_Mahan
(Visited on August 27, 2014).
605 Law Commission of India, One Hundred and Fifty First Report on Admiralty
Jurisdiction 1 (August, 1994).
the powers conferred on them until replaced by a suitable legislation of

the country concerned.606 The Law Commission of India has observed
that “in India, admiralty jurisdiction is an unfamiliar branch of
jurisprudence. Even Advocates and Judges are not familiar with the
technicalities of this branch of law”.607 The Law Commission further
observed that “though India has been carrying on maritime trade since
time immemorial, but unfortunately, law relating to admiralty has not
yet fully developed as India is still following the British admiralty laws
enacted during the colonial era”.608
5.2 ORIGIN IN INDIA AND BRIEF HISTORY

The British Crown issued a Charter in the year 1726 for establishing
Mayor’s Courts at the settlements of Bombay, Calcutta and Madras.
Each Court comprised of a Mayor and nine Aldermen. The Mayor’s
Courts had the jurisdiction to try, hear and determine all civil suits,
actions and pleas within their respective towns. The Governor and the
five senior members of his Council were appointed Justices of the
Peace with power to hold Quarter Sessions of peace. They were
constituted into a Court of Record for the trial of all offences (except
high treason) committed within the said towns or within ten miles of
the same. By a charter of 1753, the Mayor’s Courts, the Courts of
Quarter Sessions, etc, were re-established with redistribution of
jurisdiction amongst them. In 1773, the Committee of Secrecy
appointed to enquire into the State of the East India Company
submitted its report. This report led to the passing of the Regulation Act
of 1773. This Act authorised the establishment of a Supreme Court of
Judicature at Fort William, Calcutta, which was to be a Court of
Record, consisting of a Chief Justice and three other judges. It was to
exercise all civil, criminal, admiralty and ecclesiastical jurisdiction. The
charter of 1773 further conferred full powers and authority on the
Supreme Court to exercise jurisdiction according to the laws and
customs of the admiralty in England, in regard to maritime crimes
committed upon the high seas within the aforesaid limits of jurisdiction,
to punish offenders according to the civil, criminal and maritime laws,
to deliver and discharge them, and to arrest ships, persons, goods, etc.
Accordingly, the Supreme Court of Judicature was established on 26th
606 Id., at 5.
607 Ibid.
608 Ibid.
178
March 1774 at Fort William, Calcutta.609 Later, Supreme Courts were

also established at Madras and Bombay on 26th December 1800 and 8th
December 1823 respectively.610 Thus, since 26th March 1774, the
Supreme Court of Judicature began to exercise admiralty jurisdiction.611
However, as per the charter of 1773, the admiralty jurisdiction of the
Supreme Court of Bengal extended only to the subjects of the King
residing in the provinces of Bengal, Bihar and Orissa and to persons in
the service of the Company. Similar was the position at the Supreme
Courts of Judicature at Madras and Bombay.612 Admiralty jurisdiction
also came to be invested in the Recorder's Court at Bombay, which was
established by a charter dated 20th February 1798. The Recorder’s
Court, however, was substituted by the Supreme Court of Judicature at
Bombay which was established by Letters Patent Issued under the
charter of 1823.613
The Indian High Courts Act, 1861, was enacted by the British
Parliament for establishing High Courts of Judicature in India.
Consequently, High Courts were established at the Presidency towns of
Bombay, Calcutta and Madras, and the earlier existing Supreme Courts
were abolished.614 The Act of 1861 authorised these High Courts to
exercise all such civil, criminal, admiralty, vice admiralty, intestate and
609 Id., at 15.

610 Available at: http://supremecourtofindia.nic.in/supct/scm/m2.pdf (Visited on
October 12, 2014).
611 The Supreme Court was given full power and authority by the charter of 1773 to
take cognizance of, hear, examine, try and determine all causes, civil and
maritime, and all pleas of contracts, debts, exchanges, policies of assurance,
accounts, agreements, loading of ships and all matters and contracts, which in
any manner whatsoever related to freight or money due for ships hired and let
out, transport money, maritime usury or bottomry, and matters civil and
maritime, whatsoever, between merchants, owners and proprietors of ships and
vessels, employed or used within the jurisdiction aforesaid or between others
contracted, done, had or commenced, in, upon or by the sea or public rivers or
ports, creaks, harbours and places overflown, within the ebbing and flowing of
the sea and high water mark, throughout Bengal, Bihar and Orissa and the
dependent territories adjacent thereunto, the cognizance whereof belonged to the
admiralty, as the same was used and exercised in England.
613 Available at: http://admiraltypractice.com/chapters/1.htm (Visited on September
1, 2014).
614 Available at: http://www.gktoday.in/indian-high-courts-act-1861/ (Visited on
September 1, 2014).
179
matrimonial jurisdiction (original and appellate), and all such powers

and authority for and in relation to the administration of justice in their
respective Presidencies as Her Majesty might by Letters Patent grant
and direct.615 In 1862, it was provided that the High Courts were to have
such civil, criminal, admiralty and maritime jurisdiction as was
exercised by the erstwhile Supreme Courts.616
5.3 MARITIME LAWS IN INDIA

Apart from the establishment of Courts and promulgation of the
rules of procedure regarding admiralty Courts, the British Parliament
also enacted many laws governing maritime affairs. Some of these laws
are still in force. After the independence of India in 1947, the
Parliament of India has also contributed to the field of maritime law by
enacting some important and useful laws. The modern maritime law of
India has developed over the past 175 years. However, despite the
legislative efforts of the Parliament of India, the State of Indian
maritime and admiralty law is deplorable at present. Most of the
statutes dealing with maritime and admiralty law have outlived their
use and cry for comprehensive amendments. These statutes are
discussed briefly hereunder-
5.3.1 The Admiralty Offences (Colonial) Act, 1849

This Act was enacted by the British Parliament in order to provide
for the prosecution and trial in Her Majesty’s colonies of offences
committed within the jurisdiction of the admiralty. It provides that if
any person within any colony is charged with the commission of
treason, piracy, felony, robbery, murder, conspiracy or any other
offence, committed upon the sea or in any haven, river, creek or place,
where the admirals have authority or jurisdiction, he shall be brought
for trial to any colony. In such cases, the Court shall have all powers
and exercise the same jurisdiction and authority for inquiring into,
trying, hearing, determining and adjudging such offences, as if such
offence had been committed upon any waters situate within the limits
of any such colony and within the limits of the local jurisdiction of the
615 Ibid. Section 9.

616 Ibid. Clauses 31 and 32 of the Letters Patent of 1862.
180
Courts of criminal justice of such colony.617 Pirates are still prosecuted

under this Act in India.
5.3.2 The Admiralty Jurisdiction (India) Act, 1860

This Act was enacted by the British Parliament to extend certain
provisions for admiralty jurisdiction in the colonies in Her Majesty’s
territories in India. It comprises of only two sections. It lays down that
this Act applies to British India and British Burma as it applies to
colonies.618 It provides that where any person within any place in India
is charged with the commission of any offence, in respect of which
jurisdiction is given by the said Act, or where any person charged with
the commission of any such offence is brought for trial under the said
Act to any place in India; at any time before his trial, he makes it
appear to the Court exercising criminal jurisdiction in the place where
he is so charged or brought for trial, that in case the offence charged
had been committed in such place, he could have been tried only in the
Supreme Court of one of the three Presidencies in India, and claim to
be tried by such a Supreme Court accordingly, the said Court shall
certify the fact and claim to the Governor of such place or the chief
local authority thereof; who shall thereupon order and cause the person
charged to be sent in custody to one of the Presidencies for trial before
the Supreme Court of such Presidency.619
5.3.3 The Admiralty Court Act, 1861: This Act was enacted by the
British Parliament in order to extend the jurisdiction and improve the
617 Available at:

http://ozcase.library.qut.edu.au/qhlc/documents/qr_crim_admiralty_1849_12-
13_Vic_c96.pdf (Visited on August 2, 2015). Section 1 of the Act. Section 3
provides that if any person dies in any colony of any stroke, poisoning or hurt,
having been feloniously stricken, poisoned or hurt, upon the sea, or in any haven,
creek or place, where the admirals have power, authority or jurisdiction, or at any
place out of such colony, every offence committed in respect of any such case,
may be dealt with, inquired into, tried, determined and punished in such colony
in the same manner and in all respects as if such offence had been wholly
committed in that colony. Section 5 provides that for the purposes of this Act, the
word colony shall mean any island, plantation, colony, dominion, fort or factory
of Her Majesty, except any island within the United Kingdom and the Islands of
Man, Guersney, Jersey, Alderney and Sark, and the lands adjacent thereto
respectively.
618 Available at: http://www.vakilno1.com/bareacts/laws/admiralty-jurisdiction-
india- act-1860.html (Visited on August 2, 2015). Section 1 of the Act.
619 Ibid. Section 2 of the Act.
181
practice of the High Court of Admiralty. It was initially applied to India

by the Colonial Courts of Admiralty (United Kingdom) Act, 1890, and
then adopted by India by the Colonial Courts of Admiralty (India) Act,
1891.620 It provides that the High Court of Admiralty shall have
jurisdiction over-
I. Any claim for the building, equipping, or repairing of any ship, if
it is under the arrest of the Court.621
II. Any claim for necessaries supplied to any ship elsewhere than in
the port to which the ship belongs, unless it is shown to the satisfaction
of the Court that at the time of the institution of the cause, any owner or
part owner of the ship is domiciled in England or Wales.622
III. Any claim by the owner or consignee or assignee of any bill of
lading of any goods carried into any port in England or Wales in any
ship for damage done to the goods or any part thereof by the negligence
or misconduct of or for any breach of duty or breach of contract on the
part of the owner, master or crew of the ship, unless it is shown to the
satisfaction of the Court that at the time of the institution of the cause
any owner or part owner of the ship is domiciled in England or
Wales.623
IV. Any claim for damage done by any ship.624
V. All questions arising between the co-owners, or any of them,
touching the ownership, possession, employment and earnings of any
ship registered at any port in England or Wales, or any share thereof.625
VI. Any claim by a seaman of any ship for wages earned by him on
board the ship, whether the same be due under a special contract or
otherwise, and also over any claim by the master of any ship for
disbursements made by him on account of the ship.626
The Act declares the High Court of Admiralty to be a Court of
Record for all intents and purposes.627 All decrees and orders of the
High Court of Admiralty whereby any sum of money or any costs,

621 Available at: http://bruschambers.com/marine/memo44.htm (Visited on August 3,
2015). Section 4 of the Act.
182
charges or expenses shall be payable to any person, shall have the same
effect as judgments in the Superior Courts of Common Law, and the
persons to whom any such moneys or costs, charges or expenses shall
be payable, shall be deemed judgment creditors. All powers of
enforcing judgments possessed by the Superior Courts of Common
Law, or any Judge thereof, with respect to matters depending in the
same Courts as well against the ships and goods arrested as against the
person of the judgment debtor, shall be possessed by the said Court of
Admiralty with respect to matters therein depending. All remedies at
Common Law possessed by judgment creditors shall be in the like
manner possessed by persons to whom any moneys, costs, charges or
expenses are by orders or decrees of the said Court of Admiralty
directed to be paid.628 The Act further provides that the judge of the
High Court of Admiralty shall have all such powers as are possessed by
any of the Superior Courts of Common Law or any Judge thereof to
compel either party in any cause or matter to answer interrogatories and
to enforce the production, inspection and delivery of copies of any
document in his possession or power.629 All the powers possessed by
any of the Superior Courts of Common Law or any judge thereof, under
the Common Law Procedure Act, 1854, and otherwise, with regard to
reference to arbitration, proceedings thereon and the enforcing of
awards of arbitrators, shall be possessed by the judge of the High Court
of Admiralty in all causes and matters depending in the said Court. The
Registrar of the said Court of Admiralty shall possess as to such
matters the same powers as are possessed by the Masters of the said
superior Courts of Common Law in relation thereto.630
5.3.4 The Colonial Courts of Admiralty Act, 1890

This Act was enacted by the British Parliament in order to amend
the law respecting the exercise of admiralty jurisdiction in Her
Majesty’s dominions and elsewhere out of the United Kingdom. It was
extended to the British possessions on 1st July 1891.631 It provides that
every Court of law in a British possession, which is for the time being

631 Available at:
http://www.assembly.nl.ca/legislation/sr/annualstatutes/1892/1892_08ccadm.pdf
(Visited on August 3, 2015). Long Title of the Act.
183
declared in pursuance of this Act to be a Court of Admiralty, or which,

if no such declaration is in force in the possession, has therein original
unlimited civil jurisdiction, shall be a Court of Admiralty, with the
jurisdiction in this Act mentioned, and may for the purpose of that
jurisdiction exercise all the powers which it possesses for the purpose
of its other civil jurisdiction, and such Court in reference to the
jurisdiction conferred by this Act is in this Act referred to as a Colonial
Court of Admiralty. Where in a British possession the Governor is the
sole judicial authority, the expression “court of law” for the purposes of
this section includes such Governor.632 The jurisdiction of a Colonial
Court of Admiralty shall, subject to the provisions of this Act, be over
the like places, persons, matters, and things, as the Admiralty
jurisdiction of the High Court in England, whether existing by virtue of
any statute or otherwise, and the Colonial Court of Admiralty may
exercise such jurisdiction in the like manner and to as full an extent as
the High Court in England, and shall have the same regard as that Court
to international law and the comity of nations.633 It further provides that
subject to the provisions of this Act, any enactment referring to a Vice
Admiralty Court, which is contained in an Act of the Imperial
Parliament or in a Colonial law, shall apply to a Colonial Court of
Admiralty, and be read as if the expression “Colonial Court of
Admiralty” were therein substituted for “Vice Admiralty Court” or for
other expressions respectively referring to such Vice Admiralty Courts
or the judge thereof, and the Colonial Court of Admiralty shall have
jurisdiction accordingly.634
It authorizes the Legislature of a British possession to declare any
Court of unlimited civil jurisdiction, whether original or appellate, in
that possession to be a Colonial Court of Admiralty, and provide for the
exercise by such court of its jurisdiction under this Act, and limit
territorially, or otherwise, the extent of such jurisdiction; and to confer
upon any inferior or subordinate court in that possession such partial or
limited Admiralty jurisdiction under such regulations and with such
appeal (if any) as may seem fit. Provided that any such Colonial law
shall not confer any jurisdiction which is not conferred by this Act
upon a Colonial Court of Admiralty.635
632 Ibid. Section 2(1) of the Act.

633 Ibid. Secton 2(2) of the Act.
634 Ibid. Section 2(3) of the Act.
184
Pursuant to the provision contained in Section 3 of the Act of 1890,

the Indian Legislature enacted the Colonial Courts of Admiralty (India)
Act, 1891. It consists of only six sections. By this Act, the High Courts
of Judicature at Bombay, Calcutta, Madras, Rangoon, the District Court
of Karachi and the Court of the Resident at Aden, were declared to be
Colonial Courts of Admiralty, being Courts of unlimited civil
jurisdiction.636
5.3.5 The Carriage of Goods by Sea Act, 1925

This Act was enacted by the Indian Legislature in order to amend
the law with respect to the carriage of goods by sea. This Act contains
the Hague Rules regulating the respective rights and liabilities of the
parties to a contract governed by bills of lading or similar documents of
title for carriage of goods by sea from any port in India to any other
port whether in India or outside India.637 The substantive rights
recognised by this Act are of equal application to foreign merchant
ships as they are to Indian merchant ships. However, this Act does not
contain any provision for the enforcement of the right by arresting a
foreign vessel found in Indian waters. A contract of carriage of goods
by sea is called “contract of affreightment”.638
5.3.6 The Constitution of India, 1950

The Constitution of India came into force on 26th January 1950. It
provides that all lands, minerals and other things of value underlying
the ocean within the territorial waters, or the continental shelf, or the
636 Available at: http://indiankanoon.org/doc/1568486/ (Visited on August 3, 2015).

Section 2 of the Act. The words “Rangoon” and the “Court of the Resident at
Aden” were repealed in 1937, whereas the words “District Court of Karachi”
were repealed in 1948.
637 Available at:
http://www.dgshipping.gov.in/WriteReadData/userfiles/file/Indiancarriage_good
s_se aact_1925.pdf (Visited on August 3, 2015). Long Title of the Act. This Act
is based on the United Kingdom’s Carriage of Goods by Sea Act, 1924, and the
Bills of Lading Act, 1855. It is important to mention here that United Kingdom’s
Carriage of Goods by Sea Act, 1924, and the Bills of Lading Act, 1855, have
been repealed by the Carriage of Goods by Sea Act, 1971, and the Carriage of
Goods by Sea Act, 1992, respectively. However, the Indian law is still based on
these repealed statutes.
638 Available at:
http://caaa.in/Image/Carriage%20Laws%20and%20Multimodal%20transport%20
of %20Goods.pdf (Visited on September 4, 2014).
185
exclusive economic zone of India, shall vest in the Union and be held
for the purposes of the Union.639 All other resources of the exclusive
economic zone of India shall also vest in the Union and be held for the
purposes of the Union.640 The limits of the territorial waters, the
continental shelf, the exclusive economic zone and other maritime
zones of India shall be such as may be specified from time to time by or
under any law made by Parliament.641 The Constitution also confers
exclusive power on the Parliament to legislate on maritime law, which
is evident from the various entries mentioned in the Union List of the
Seventh Schedule.642 However, the State Legislature is also empowered
to legislate on a few subjects of maritime law, which are mentioned in
the State List of the Seventh Schedule.643 Apart from these specific
provisions dealing with maritime issues, all pre Constitutional laws
have been preserved by the transitional provisions of the Constitution,
639 Available at: http://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf

(Visited on August 3, 2015). Article 297(1).
640 Ibid. Article 297(2).
641 Ibid. Article 297(3).
642 Ibid. Entry 21 mentions piracies and crimes committed on the high seas or in the
air; offences against the law of nations committed on land or the high seas or in
the air. Entry 24 mentions shipping and navigation on inland waterways,
declared by Parliament by law to be national waterways, as regards mechanically
propelled vessels; the rules of the road on such waterways. Entry 25 mentions
maritime shipping and navigation, including shipping and navigation on tidal
waters; provision of education and training for the mercantile marine and
regulation of such education and training provided by States and other agencies.
Entry 26 mentions lighthouses, including lightships, beacons and other
provisions for the safety of shipping and aircraft. Entry 27 mentions ports
declared by or under law made by Parliament or existing law to be major ports,
including their delimitation and the constitution and powers of port authorities
therein. Entry 28 mentions port quarantine, including hospitals connected
therewith; seamen’s and marine hospitals. Entry 30 mentions carriage of
passengers and goods by railway, sea or air, or by national waterways in
mechanically propelled vessels. Entry 57 mentions fishing and fisheries beyond
territorial waters. Entry 89 mentions terminal taxes on goods or passengers,
carried by railway, sea or air; taxes on railway fares and freights. Entry 95
mentions admiralty jurisdiction.
643 Ibid. Entry 17 mentions water, that is to say, water supplies, irrigation and canals,
drainage and embankments, water storage and water power, subject to the
provisions of Entry 56 of the Union List. Entry 21 mentions Fisheries. Entry 56
mentions taxes on goods and passengers carried by road or on inland waterways.
Entry 58 mentions taxes on animals and boats.
186
enabling the continuance of the status quo ante in all matters until
specific legislation is introduced.644 Thus, the Admiralty Offences
(Colonial) Act, 1849, the Admiralty Jurisdiction (India) Act, 1860, the
Admiralty Court Act, 1861, the Colonial Courts of Admiralty Act, 1891,
and the Carriage of Goods by Sea Act, 1925, have continued to be in
force in independent India by virtue of these transitional provisions of
the Constitution of India.645
644 Ibid. Article 372(1) provides that notwithstanding the repeal by this Constitution
of the enactments referred to in Article 395 but subject to the other provisions of
this Constitution, all the law in force in the territory of India immediately before
the commencement of this Constitution shall continue in force therein until
altered or repealed or amended by a competent Legislature or other competent
authority. Article 372(2) provides that for the purpose of bringing the provisions
of any law in force in the territory of India into accord with the provisions of this
Constitution, the President may by order make such adaptations and
modifications of such law, whether by way of repeal or amendment, as may be
necessary or expedient, and provide that the law shall, as from such date as may
be specified in the order, have effect subject to the adaptations and modifications
so made, and any such adaptation or modification shall not be questioned in any
court of law. Article 372(3) provides that nothing in clause (2) shall be deemed to
empower the President to make any adaptation or modification of any law after
the expiration of three years from the commencement of this Constitution, or to
prevent any competent Legislature or other competent authority from repealing
or amending any law adapted or modified by the President under the said clause.
Explanation I provides that the expression “law in force” in this article shall
include a law passed or made by a Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that it or parts of it may not be then in
operation either at all or in particular areas. Explanation II provides that any law
passed or made by a Legislature or other competent authority in the territory of
India which immediately before the commencement of this Constitution had
extra-territorial effect as well as effect in the territory of India shall, subject to
any such adaptations and modifications as aforesaid, continue to have such extra-
territorial effect. Explanation III provides that nothing in this article shall be
construed as continuing any temporary law in force beyond the date fixed for its
expiration or the date on which it would have expired if this Constitution had not
come into force. Explanation IV provides that an Ordinance promulgated by the
Governor of a Province under Section 88 of the Government of India Act, 1935,
and in force immediately before the commencement of this Constitution shall,
unless withdrawn by the Governor of the corresponding State earlier, cease to
operate at the expiration of six weeks from the first meeting after such
commencement of the Legislative Assembly of that State functioning under
clause (1) of article 382, and nothing in this article shall be construed as
continuing any such Ordinance in force beyond the said period.
645 Supra note 2.
187
5.3.7 The Merchant Shipping Act, 1958

The first Indian Merchant Shipping Act was enacted in 1923, the
provisions of which were in line with the British Merchant Shipping
Act, 1894.646 After independence, taking care of new conditions and
changes that have taken place in the shipping industry, a
comprehensive legislation was passed by the Indian Parliament in 1958,
known as the Merchant Shipping Act, 1958. It is a very comprehensive
statute comprising of XVIII Parts and 461 Sections. It repealed most of
the earlier statutes in toto. It also repealed the Coasting Vessels Act,
1838, in so far as it applied to sea going ships fitted with mechanical
means of propulsion and to sailing vessels. It also provided for a
shipping development fund, but the same was abolished in 1986. The
Act has been constantly under revision and amendments to ratify the
changes approved by the International Maritime Organisation through
its conventions and protocols, to which India is a Member.647 The
Merchant Shipping Act, as it stands today, establishes a National
Shipping Board,648 provides for the general administration of Indian
shipping by establishing the office of the Director General of Shipping
(commonly referred to as DG Shipping or DGS),649 establishes the
Mercantile Marine Department,650 and makes provisions for
surveyors,651 radio inspectors,652 shipping offices,653 seamen’s
employment offices654 and seamen’s welfare officers.655 It contains
provisions for the registration and procedure thereof for Indian ships,
regulates ownership of Indian vessels, contains regulations for
certifications,656 classification and employment of seafarers and
646 Available at:

http://www.dgshipping.gov.in/Content/PageUrl.aspx?page_name=ShipManualC
hap 3 (Visited on September 5, 2014).
647 Ibid.
648 Ibid. Part II, Sections 4 to 6 of the Act.
649 Ibid. Part III, Section 7 of the Act.
656 Ibid. Part V, Sections 20 to 74 of the Act.
188
officers,657 regulations governing navigation and specific types of ships

(including passenger ships, nuclear ships, sailing vessels and fishing
boats), and provisions for investigations and inquiries and penalties.658
It also incorporates safety and load line provisions, fixes liability for
collisions and accidents at sea, provides for limitation of liability,
liability for and preventive measures against marine pollution,
provisions for wreck and salvage, and other miscellaneous
provisions.659
From the above account, it might appear that the Merchant Shipping
Act, 1958 is up to date, but in reality, it is far from being so. Problems
arise out of some of the provisions having been incorporated verbatim
from older Acts. This Act is also criticized on the ground that it is
outmoded and behind the times in comparison to the position of law in
other countries and India’s obligations as a member of the International
Maritime Organization (IMO). Another problem with this Act as it
stands today is that it is excessively comprehensive. An illustration of
this is Part VII of the Act dealing with seafarers and apprentices.660 In
order to update this Act, two amendment Bills were introduced in the
Rajya Sabha in 2013. The Merchant Shipping (Amendment) Bill, 2013,
was introduced in the Rajya Sabha by the Minister of Shipping, Mr.
G.K.Vasan on 18th March, 2013.661 The Merchant Shipping (Second
Amendment) Bill, 2013, was introduced by him in the Rajya Sabha on
657 Ibid. Part VI, Sections 75 to 87 of the Act.

658 Ranjeet Sangle and V. Subramanian, “Shipping/Maritime Laws in India” 5,
available at:
http://www.inforise.org/docs/Research/shippinglawinindiaarticle.pdf (Visited on
September 5, 2014).
659 Ibid.
660 Ibid.
661 Available at: http://www.prsindia.org/billtrack/the-merchant-shipping-
amendment- bill-2013-2683/ (Visited on September 6, 2014). It was referred to
the Standing Committee on Transport, Tourism and Culture on 19th March,
2013. The Committee presented its report on 26th June, 2013. The Bill seeks to
add new provisions to the Merchant Shipping Act, 1958, to comply with the
International Convention for the Control of Harmful Anti-Fouling Systems on
Ships, 2001. The Convention is aimed at protecting the marine environment and
human health from adverse effects of anti fouling paints used to coat the ships’
surfaces.
189
19th August, 2013.662 The amendments shall apply to: (i) all Indian
ships, wherever they are, (ii) ships operating under the authority of
India and (iii) ships entering places where India has exclusive
jurisdiction, including ports, shipyards, offshore terminals, territorial
waters, exclusive economic zone and continental shelf. Both Bills are
still pending in the Rajya Sabha.663
5.3.8 The Major Port Trusts Act, 1963

This Act was enacted by the Parliament of India in order to make
provision for the constitution of port authorities for certain major ports
in India and to vest the administration, control and management of such
ports in such authorities, and for matters connected therewith. It is a
comprehensive statute comprising of XI Chapters and 134 Sections.664
662 Available at: http://www.prsindia.org/billtrack/the-merchant-shipping-second-

amendment-bill- 2013-2867/ (Visited on September 6, 2014). It was referred to
the Standing Committee on Transport, Tourism and Culture on 20th August,
2013. The Committee presented its report on the Bill on 20th November, 2013.
The Bill proposes to amend the Merchant Shipping Act, 1958, to bring it in
conformity with the International Labour Organisation’s Maritime Labour
Convention, 2006. The Convention lays down the standards for the living and
working conditions of seafarers, including their food, accommodation, medical
care, social security and recruitment. The amendments regarding the maritime
labour standards specified in the Convention shall apply to all seafarers and ships
engaged in commercial activities except: (i) ships which navigate exclusively in
inland waters, (ii) fishing vessels, (iii) traditionally built ships like dhows and
junks and (iv) warships or naval auxiliary ships. The government may extend
applicability of these provisions to non- commercial ships on the
recommendations of the Directorate General of Shipping.
663 Ibid.
664 Available at: http://www.lawzonline.com/bareacts/major-port-trusts-
act/Preamble- major-port-trusts-act.html (Visited on August 3, 2015). Preamble
of the Act. Currently there are 13 major ports in India. Major ports of India come
within purview of the Central Government. Excepting Ennore Port, all other
ports are governed in accordance with Major Port Trusts Act, 1963. Each port
has a separate board of trustees appointed by the Central Government. The
Trusts operate on the basis of policy directives and orders from the Centre and
their functions include planning and managing the port operations. Port tariffs
are fixed by the Tariff Authority for Major Ports. Ennore Port is a public limited
company fully owned by the Central Government. The thirteen major ports are
Mumbai, Kolkata, Chennai, Kandla, Jawaharlal Nehru Port (an adjacent port
near Mumbai), Ennore (near Chennai), Mormugao (Goa), New Mangalore,
Cochin, V.O. Chidambaranar Port (previously known as Tuticorin), Port Blair,
190
Recently, the Narendra Modi led Union Government has initiated steps
aimed at corporatising India's major ports and has started the process
for appointment of a world class consultant to come out with a draft
report for amendments in the relevant act to do so. The move is aimed
at infusing professionalism in the major ports in order to make them
compete with private sector ports as well empower financial autonomy.
The government has also said that a level playing field will be prepared
for major ports in order to give them freedom to fix tariff at par with
non major ports. The development comes in the backdrop of non major
ports eating into the share of major ports as there is no parity in the
regulation mechanism between the major port trusts and the non major
ports.665
5.3.9 The Marine Insurance Act, 1963

Since independence, Indian shipping had undergone considerable
expansion, and there was an imperative need for an Indian legislation
consistent with Indian conditions, for the smooth development of
Indian marine insurance. This Act was enacted by the Parliament of
India to codify the law relating to marine insurance. It comprises of 92
Sections.666 Prior to the enactment of this Act, questions arising on this
Vishakhapatnam and Paradip. Apart from them, there are 187 notified minor and
intermediate ports along India’s coastline spanning across 7516.6 kms.
665 Available at: http://articles.economictimes.indiatimes.com/2014-08-
31/news/53413125_1_major-ports-new-managlore-v-o-chidambarnar (Visited on
September 6, 2014).
666 Available at: http://indiankanoon.org/doc/86902/ (Visited on August 3, 2015).
There are four classes of marine insurance, i.e., Hull Insurance, Cargo
Insurance, Protection and Indemnity (P&I) Insurance, and Freight
Insurance. Hull Insurance covers physical damage to the ship or vessel. In
addition, it contains a collision liability clause that covers the owner’s liability if
the ship collides with another vessel or damages its cargo. Cargo
Insurance covers the shipper of goods if the goods are damaged or lost. The
policy can be written to cover a single shipment. If regular shipments are made,
an open cargo policy can be used that insures the goods automatically when a
shipment is made. The open cargo policy has no expiry date and it remains in
force till it is cancelled. Protection and Indemnity (P&I) Insurance is usually
written as a separate contract that provides comprehensive liability insurance for
property damage or bodily injury to third parties. P&I insurance protects the ship
owner for damage caused by ship to piers, docks and harbour installations,
illness or injury to the passenger or crew and fines and penalties. Freight
Insurance indemnifies the ship owner for the loss of earnings if the goods are
191
branch of law had to be decided according to the general rules of the

law of contract and the English decisions based on the common law
rules of contract.667 A contract of marine insurance is defined by this
Act as “an agreement whereby the insurer undertakes to indemnify the
assured in the manner and to the extent thereby agreed, against marine
losses, that is to say, the losses incidental to marine adventure”.668 It
may cover loss or damage to vessels, cargo or freight. Marine
insurance falls under commercial insurance. The policy is taken to
reduce business risks. It caters from small scale business organizations
to large corporate organizations. However, marine insurance policy
does not cover loss or damage due to wilful misconduct, ordinary
leakage, improper packing, delay, war, strike, riot and civil
commotion.669 With the due development of commerce and civilization,
insurance also developed and now the strict scope of marine insurance,
which was concerned only with the risk incidental to a sea voyage, has
been expanded and it covers a wide variety of risks which are of course
incidental to or connected directly or remotely, with a sea voyage.670
However, as in the case of its English counterpart, the Indian Act
embodies only some and not all of the legal principles and rules of
marine insurance, and its language is so extremely concise and general
that its full import and meaning can scarcely be understood without
referring to the decided cases from which that law has evolved. There is
evidence that marine insurance was practiced in India since long time.
In earlier days, travellers by sea and land were exposed to the risk of
losing their vessels and merchandise because of piracy on the open
seas. It was the British insurers who introduced general insurance in
India in its modern form. The first company known as the Sun
Insurance Office Ltd. was set up in Calcutta in the year 1710. It was
followed by several insurance companies of different parts of the
world. In India, marine insurance is transacted by the subsidiaries of the
damaged or lost and are not delivered. Marine insurance contributes 20% to the
total premium of the general insurance industry in India.
667 Shyamolee Lamba, “The Marine Insurance Act, 1963: An Indian Perspective”
available at: http://jurisonline.in/?p=4639 (Visited on September 7, 2014).
668 Supra note 63. Section 3 of the Act.
669 Supra note 64.
670 Ibid.
192
General Insurance Corporation of India, i.e., New India Assurance,

National Insurance, Oriental Insurance and United India Insurance.671
5.3.10 The Territorial Waters, Continental Shelf, Exclusive Economic

Zone and Other Maritime Zones Act, 1976
For many years India’s territorial waters and continental shelf were
governed by Article 297 of the Constitution of India and the
proclamations issued by the President of India. In 1976, consequent
upon the Third United Nations Convention on the Law of the Sea
(UNCLOS), held at Geneva, the Territorial Waters, Continental Shelf,
Exclusive Economic Zone and Other Maritime Zones Act was enacted
in India. It came into force on 25th August 1976. It is a small statute
comprising of sixteen sections only. Under this Act, land, minerals and
other resources underlying the ocean, within the territorial waters, the
continental shelf and the Exclusive Economic Zone (EEZ) are vested
with the Union of India. 672 The Act categorically prescribes the limits
of the territorial waters,673 contiguous zone,674 continental shelf,675
671 Ibid.
672 Available at:
http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/IND_
1976 _Act.pdf (Visited on August 3, 2015).
673 Ibid. Section 3(1) provides that the sovereignty of India extends and has always
extended to the territorial waters of India and to the seabed and subsoil
underlying, and the air space over, such waters. Section 3(2) provides that the
limit of the territorial waters is the line every point of which is at a distance of
twelve nautical miles from the nearest point of the appropriate baseline. Section
3(3) provides that notwithstanding anything contained in sub-section (2), the
Central Government may, whenever it considers necessary so to do having
regard to International Law and State practice, alter, by notification in the
Official Gazette, the limit of the territorial waters. Section 3(4) provides that no
notification shall be issued under sub-section (3) unless resolutions approving the
issue of such notification are passed by both Houses of Parliament.
674 Ibid. Section 5(1) provides that the contiguous zone of India is an area beyond
and adjacent to the territorial waters and the limit of the contiguous zone is the
line every point of which is at a distance of twenty four nautical miles from the
nearest point of the baseline referred to in sub section (2) of section 3. Section
5(2) provides that notwithstanding anything contained in sub-section (1), the
Central Government may, whenever it considers necessary so to do having
regard to International Law and State practice, alter, by notification in the
Official Gazette, the limit of the contiguous
zone. Section 5(3) provides that no notification shall be issued under sub-section (2)
unless resolutions approving the issue of such notification are passed by both
193
Exclusive Economic Zone676 and other maritime zones of India.677 It

also provides the legal framework specifying the nature, scope and
extent of India’s rights, jurisdiction and control of various maritime
zones; the maritime boundaries between India and its neighbouring
countries;678 and the exploitation, exploration, conservation and
Houses of Parliament. Section 5(4) provides that the Central Government may
exercise such powers and take such measures in or in relation to the contiguous
zone as it may consider necessary with respect to: (a) the security of India, and
(b) immigrations sanitation, customs and other fiscal matters.
675 Ibid. Section 6(1) provides that the continental shelf of India comprises the
seabed and subsoil of the submarine areas that extend beyond the limit of its
territorial waters throughout the natural prolongation of its land territory to the
outer edge of the continental margin or to a distance of two hundred nautical
miles from the baseline referred to in sub-section (2) of section 3 where the outer
edge of the continental margin does not extend up to that distance. Section 6(2)
provides that India has and always had, full and exclusive sovereign rights in
respect of its continental shelf. Section 6(4) provides that no person (including a
foreign Government) shall, expect under, and in accordance with, the terms of a
licence or a letter of authority granted by the Central Government, explore the
continental shelf or exploit its resources or carry out any search or excavation or
conduct any research within the continental shelf or drill therein or construct,
maintain or operate any artificial island, off shore terminal, installation or other
structure or device therein for any purpose whatsoever.
676 Ibid. Section 7(1) provides that the exclusive economic zone of India is an area
beyond and adjacent to the territorial waters, and the limit of such zone is two
hundred nautical miles from the baseline referred to in sub section (2) of Section
3. Section 7(2) provides that notwithstanding anything contained in sub section
(1), the Central Government may, whenever it considers necessary so to do
having regard to International Law and State practice, alter, by notification in the
Official Gazette, the limit of the exclusive economic zone. Section 7(3) provides
that no notification shall be issued under sub section (2) unless resolutions
approving the issue of such notification are passed by both Houses of Parliament.
677 Ibid. Section 8(1) provides that the Central Government may, by notification in
the Official Gazette, specify the limits of such waters adjacent to its land territory
as are the historic waters of India. Section 8(2) provides that the sovereignty of
India extends, and has always extended, to the historic waters of India and to the
seabed and subsoil underlying, and the air space over, such waters.
678 Ibid. Section 9(1) provides that the maritime boundaries between India and any
State whose coast is opposite or adjacent to that of India in regard to their
respective territorial waters, contiguous zones, continental shelves, exclusive
economic zones and other maritime zones shall be as determined by agreement
(whether entered into before or after the commencement of this section) between
India and such State and pending such agreement between India and any such
State, and unless any other provisional arrangements are agreed to between them,
the maritime boundaries between India and such State shall not extend beyond
194
management of natural resources within the maritime zones.679 Thus,

the Act by its very nature is an umbrella legislation on maritime issues.
A close scrutiny of the Act also reveals that the offences mentioned
therein are generalized in nature. It provides that whoever contravenes
any provisions of this Act or of any notification thereunder shall
(without prejudice to other action which may be taken against such
person under any other provision of this or of any other enactment) be
punishable with imprisonment which may extend to three years or with
fine, or with both.680 However, the Act necessitates the requirement of
previous sanction of Central Government before instituting prosecution
against such persons.681 But it has not provided a time frame within
which the sanction is to be granted, which has led the maritime
enforcement agencies and the police to book the apprehended vessels
under various provisions of the Indian Penal Code, Arms Act, Customs
Act, etc. Further, the Act also empowers the Central Government to
make rules by notification to carry out the purposes of the Act in
the line every point of which is equidistant from the nearest point from which the
breadth of the territorial waters of India and of such State are measured.
679 Rohan Jhusiwala, “India and the Law of the Seas” PSA Bulletin, Issue II (2010),
available at: http://psalegal.com/upload/publication/assocFile/Maritime-
Bulletin- Issue-II01072010113442AM.pdf (Visited on September 7, 2014).
680 Ibid. Section 11. Section 12(1) provides that where an offence under this Act or
the rules made thereunder has been committed by a company, every person who
at the time the offence was committed was in charge of and was responsible to
the company for the conduct of the business of the company, as well as the
company shall be deemed to be guilty of the offence and shall be liable to be
proceeded against and punished accordingly: Provided that nothing contained in
this sub section shall render any such person liable to any punishment provided
in this Act if he proves that the offence was committed without his knowledge or
that he exercised all due diligence to prevent the commission of such offence.
Section 12(2) provides that notwithstanding anything contained in sub section (1)
where an offence under this Act or the rules made thereunder has been
committed with the consent or the connivance of, or is attributable to any neglect
on the part of, any director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against
and punished accordingly. Section 13 provides that any person committing an
offence under this Act or any rules made there under or under any of the
enactments extended under this Act or under the rules made there under may be
tried for the offence in any place in which he may be found or in such other place
as the Central Government may, by general or special order, published in the
Official Gazette, direct in this behalf.
195
general and for delegating specific power for inter alia regulating the
conduct of a person in the territorial waters, contiguous zone, EEZ or
any other maritime zone of India.682 But no rules have been framed till
date.683
5.3.11 The Maritime Zones of India (Regulation of Fishing by Foreign

Vessels) Act, 1981
This Act was enacted by the Parliament of India in order to provide
for the regulation of fishing by foreign vessels in certain maritime
zones of India and for matters connected therewith. It comprises of 26
Sections. Under this Act, the maritime zones of India are protected
from exploitation by Indians and/or foreign nationals aboard a foreign
vessel, which do not hold a valid license/permit issued by the Central
Government under this Act.684 Further, this Act makes provision for

683 Ibid.
684 Available at: http://dahd.nic.in/dahd/acts-rules/the-maritime-zones-of-india.aspx
(Visited on August 3, 2015). Section 3 of the Act provides that subject to the
provisions of this Act, no foreign vessel shall, except under and in accordance
with: (a) a licence granted under section 4; or (b) a permit granted under section
5, by the central Government, be used for fishing within any maritime zone of
India. Section 4(1) provides that the owner of a foreign vessel or any other
person not being in either case any person to whom any of the descriptions
specified in sub items (1) to (3) of item (i) of sub-clause (II) of clause (e) of
section 2 applies, who intends to use such vessel for fishing within any maritime
zone of India, may make an application to the Central Government for the grant
of a licence. Section 4(2) provides that every application under sub section (1)
shall be in such form and shall be accompanied by such fees as may be
prescribed. Section 4(3) provides that no licence shall be granted unless the
Central Government, having regard to such matters as may be prescribed in the
public interest in this behalf and after making such inquiry in respect of such
other matters as may be relevant, is satisfied that the licence may be granted.
Section 5(1) provides that every Indian citizen and every person to whom any of
the descriptions specified in sub item (2) or (3) of item (i) of sub clause (II) of
clause (e) of section (2) applies, who intends to use any foreign vessel for fishing
within any maritime zone of India, may make an application to the Central
Government for a permit to use such vessel for such purpose. Section 5(2)
provides that every application under sub section (1) shall be made in such form
and shall be accompanied by such fees as may be prescribed. Section 5(3)
provides that no permit shall be granted unless the Central Government, having
regard to such matters as may be prescribed in the public interest in this behalf
and after making such inquiry in respect of such other matters as may be
relevant, is satisfied that the permit may be granted.
196
imprisonment, heavy fines and confiscation of the foreign fishing

vessels convicted of the offences of illegal fishing and obstructing an
authorised officer in the exercise of his powers.685 Thus, in many ways
this Act complements the Territorial Waters, Continental Shelf,
Exclusive Economic Zone and Other Maritime Zones Act, 1976.
Furthermore, this Act specifically empowered authorized Government
officials, Coast Guards and Police to implement and enforce its
provisions and the specific powers of apprehension, arrest and seizure
are vested with the local police officials in the coastal states.686
Moreover, unlike the Act of 1976, this Act does not require prior
sanction of the Government to initiate prosecutions for the offences
committed under it. As opposed to the Act, the Maritime Zones of India
(Regulation of Fishing by Foreign Vessels) Rules, 1982 were framed by
the Government under Section 25 of the Maritime Zones of India Act,
1981. Thus, the regulatory framework is in place. While offences
relating to poaching are dealt with under the Act of 1981 and smuggling
under the Customs Act, there are offences such as unauthorized
research activity, acts aimed at collecting information to the prejudice
685 Ibid. Sections 10 to 17.

686 Ibid. Section 9(1) of the Act provides that any officer of the Coast Guard
constituted under the Coast Guard Act, 1978, or such other officer of
Government as may be authorised by the Central Government may, for the
purpose of ascertaining whether or not the requirements of this Act have been
complied with, either with or without a warrant: (a) stop or board a foreign
vessel in any maritime zone of India and search such vessel for fish and for
equipment used or capable of being used for fishing;
(b) require the master of such vessel to produce - (i) any licence, permit, log
book or other document relating to the vessel and examine or take copies of such
licence, permit, logbook or document; (ii) any catch, net, fishing gear or other
equipment on board such vessel or belonging to the vessel and examine such
fish, net gear or equipment; (c) make such enquiries as may be necessary to
ascertain whether any offence under this Act has been committed. Section 9(2)
provides that where the officer referred to in sub section (1) has reason to believe
that any foreign vessel has been, is being or is to be used for committing an
offence under this Act, he may, with or without a warrant, (a) seizure and detain
such vessel, including any fishing gear, fish, equipment, stores or cargo found on
board such vessel or belonging to the vessel, and seize and detain any fishing
gear abandoned by the vessel; (b) require the master of the vessel so seized or
detained to bring such vessel to any specified port; (c) arrest any person who,
such officer has reason to believe, has committed such as offence. Section 9(3)
provides that in taking any action under sub section (2), the authorised officer
may use such force as may be reasonably necessary.
197
of the security of India, unauthorized operation of a vessel in the

offshore development area, etc., which have not been covered under
any statute. Also, the operation of deep sea fishing vessels with foreign
crew have made our coasts vulnerable to nefarious activities, which
further emphasizes the need to amend the Act of 1981 and make it
stronger.687
5.3.12 The Multimodal Transportation of Goods Act, 1993

This Act was enacted by the Parliament of India to provide for the
regulation of the multimodal transportation of goods, from any place in
India to a place outside India, on the basis of a multimodal transport
contract and for matters connected therewith or incidental thereto. It
comprises of 32 Sections. It applies to all cases where two or more than
two modes of transport are used in the course of transportation. Under
this Act, multimodal transportation means, “carriage of goods by at
least two different modes of transport under a multimodal transport
contract, from the place of acceptance of the goods in India to a place
of delivery of the goods outside India”.688 Multimodal transportation of
goods is now a standard practice in many developed countries and is
gradually spreading over to developing countries also. This Act was
enacted by the Government in order to ease control, simplify
procedure, facilitate smooth flow of international trade and to promote
exports. It was amended in the year 2000. The Schedule of this Act has
also amended the Carriers Act, 1865, the Carriage of Goods by Sea Act,
1925, and the Sale of Goods Act, 1930.689
5.3.13 The Suppression of Unlawful Acts Against Safety of Maritime

Navigation and Fixed Platforms on Continental Shelf Act, 2002
This Act was enacted by the Parliament in order to give effect to the
International Maritime Organisation Convention for Suppression of
Unlawful Acts Against the Safety of Maritime Navigation and the
Protocol for the Suppression of Unlawful Acts Against the Safety of
Fixed Platforms Located on the Continental Shelf and for matters
connected therewith. It extends to the whole of India including the
territorial waters, the continental shelf and the exclusive economic
687 Supra note 76.

688 Available at: http://www.cochinport.com/writereaddata/pdf/TheMultimodal.pdf
(Visited on August 3, 2015). Section 2(k) of the Act.
198
zone.690 It makes punishable offences against ships, fixed platforms,

cargo of a ship, maritime navigational facilities, etc.691 It also makes
provision for designated courts for the trial of offences punishable
under this Act.692 It also makes provisions for bail693 and extradition.694
However, it provides that no prosecution for an offence under this Act
shall be instituted except with the previous sanction of the Central
Government.695
5.3.14 The Admiralty Bill, 2005

The Admiralty Bill was introduced in the Lok Sabha (the upper
house of Parliament) on 11th May 2005 by Mr. T.R. Baalu, the Minister
of Shipping, Road Transport and Highways, in order to consolidate and
amend the law relating to the admiralty jurisdiction of courts, legal
proceedings in connection with ships, their arrest, detention and sale
and matters connected therewith or incidental thereto. It was proposed
to enlarge the scope of the legislation to cover claims pertaining to
690 Available at:

http://www.nia.gov.in/acts/The_Suppression_of_Unlawful_Acts_Against_Safety
_of_ Maritime_Navigation_Act_2002.pdf (Visited on August 3, 2015). Section
1(2) of the Act provides that this Act extends to the whole of India including the
limit of the territorial waters, the continental shelf, the exclusive economic zone
or any other maritime zone of India within the meaning of Section 2 of the
Territorial Waters, Continental Shelf, Exclusive Economic Zone and other
Maritime Zones Act, 1976. Section 1(3) provides that save as otherwise provided,
it shall apply: (a) to any offence under section 3 committed outside India by any
person; (b) to a ship, if that ship is navigating or scheduled to navigate into,
through or from waters beyond the outer limits of the territorial waters of India,
or the lateral limits of its territorial waters with adjacent States; (c) when the
offence is committed on board a ship in the territorial waters of India or against a
fixed platform located on the Continental Shelf of India. Section 1(4) provides
that notwithstanding anything contained in sub section (3), this Act shall apply
only to offences committed by an offender or alleged offender: (a) when such an
offender is found in the territory of a Convention State; (b) when such an
offender is found in the territory of a Protocol State in whose internal water or
territorial waters or continental shelf the fixed platform is located; or
(c) when such an offender is found in the territory of a State other than the State
referred to in clause (a) or clause (b).
199
pollution damages, loss of life, personal injury, towage of ships,

pilotage of ships, port dues, disbursement made by the ship owners and
agents of ships.696
The Bill, inter alia, provided for vesting of civil jurisdiction in
respect of various types of claims pertaining to shipping industry in
High Courts,697 power of Supreme Court to transfer any proceedings
from one High Court to another,698 power of the High Court to confer
admiralty jurisdiction in consultation with the Chief Justice of India on
any principal civil court of the State. It also proposed to repeal the
colonial admiralty laws, i.e., the Admiralty Offences (Colonial) Act,
1849, the Admiralty Jurisdiction (India) Act, 1860, the Admiralty Court
Act, 1861, the Colonial Courts of Admiralty Act, 1890, and the Colonial
Courts of Admiralty (India) Act, 1891.699 But unfortunately, the Bill
could not get through and lapsed in Parliament.700 As a result, the
colonial admiralty laws, which have outlived their use, still continue to
operate in India.
696 Statement of Objects and Reasons of the Bill.

697 Available at:
http://www.prsindia.org/uploads/media/1167471267/1167471267_The_Admiralty
_B ill_2005.pdf (Visited on August 3, 2015). Section 3(1) of the Bill provided
that subject to the provisions of sub section (2), the civil jurisdiction in respect of
all claims under this Act shall vest in the High Court concerned and be
exercisable in accordance with the provisions contained in this Chapter. Section
3(2) provided that if at any time, the High Court is of the opinion that the number
of cases filed under this Act is unduly large, it may, in consultation with the
Chief Justice of India, by notification in the Official Gazette, confer admiralty
jurisdiction in such matters, wholly or to the extent it considers necessary, on
such of the principal civil courts of the State as may be specified in the
notification. Section 3(3) provided that any notification referred to in sub section
(2) may also contain such supplemental, incidental and consequential provisions
as the High Court may deem necessary.
698 Ibid. Section 4 of the Bill provided that the Supreme Court may, on application of
any party, transfer, at any stage, any admiralty proceeding from one High Court
to any other High Court and the latter High Court shall proceed to try, hear and
determine the matter from the stage at which it stood at the time of transfer:
Provided that no such proceeding shall be transferred unless parties to the
proceeding have been given an opportunity of being heard in the matter.
699 Ibid. Section 21 of the Bill.
700 Available at: http://www.prsindia.org/billtrack/the-admiralty-bill-2005-160/
(Visited on September 11, 2014).
200
5.3.15 The Piracy Bill, 2012

In order to make special provisions for the suppression of piracy and
to provide for punishment for the offence of piracy, the Piracy Bill,
2012, was introduced in the Lok Sabha by the Minister of External
Affairs, SM Krishna, on 21st March 2012. Piracy as a crime is not
included in the Indian Penal Code. This has led to problems in the
prosecution of pirates presently in the custody of Indian police
authorities. The Piracy Bill intended to fill this gap and provide clarity
in the law.701 The Bill proposed to punish piracy with imprisonment for
life. In cases where piracy leads to death, it may be punished with
death.702 The Bill also laid down punishments for attempts to commit
and abet piracy.703 The Bill proposed to empower the Government to set
up designated courts for speedy trial of offences and authorize the
courts to prosecute the accused regardless of his/her nationality.704 The
Bill prescribed that its provisions shall also extend to the Exclusive
701 Available at:

http://www.prsindia.org/uploads/media/Piracy/piracy%20bill%20text%20_%202
012 Pdf (Visited on September 12, 2014).
702 Ibid. Section 3 of the Bill provided that whoever commits an act of piracy shall be
punished with imprisonment for life except where the accused has caused death
in committing the act of piracy or attempt thereof in which case he may be
punished with death and in addition the Designated Court may also subject to
any restitution or forfeiture of property involved in the commission of the
offence.
703 Ibid. Section 4 of the Bill provided that an attempt to commit piracy or any
unlawful attempt intended to aid, abet, counsel or procure for the commission of
an offence of piracy shall also constitute an offence and is liable on conviction to
be punished with imprisonment for a term which may extend to fourteen years
and shall also be liable to fine. Section 5 provided that every person who is an
accomplice to an act of piracy shall be liable on conviction to be punished with
imprisonment for a term which may extend to fourteen years and shall also be
liable to fine.
704 Ibid. Section 8(1) of the Bill provided that for the purpose of providing for speedy
trial of the offences under this Act, the Central Government shall, after
consulting the Chief Justice of the concerned High Court, by notification,
specify: (i) one or more Court of Session in the State, to be Designated Court for
the purposes of this Act; and (ii) the territorial jurisdiction of each such Court.
Section 8(2) provided that notwithstanding anything contained in the Code, a
Designated Court shall, as far as practicable, hold the trial on a day-to-day basis.
201
Economic Zone of India.705 Unfortunately, the Bill lapsed due to the

dissolution of the fifteenth Lok Sabha in May 2014.706
5.4 INTERNATIONAL CONVENTIONS AND INDIA

India has been signatory to several international maritime
conventions. The following conventions, protocols and agreements
have been ratified by India-
1. Convention for the Facilitation of International Maritime Traffic,
1965.
2. International Convention on Loadlines, 1966.
3. 1988 Protocol to the International Convention on Loadlines, 1966.
4. International Convention on Civil Liability for Oil Pollution
Damage, 1969. However, this Convention was denounced by India on
21st June 2001.
5. 1976 Protocol to the International Convention on Civil Liability
for Oil Pollution Damage, 1969.
6. International Convention on Tonnage Measurement of Ships,
1969.
7. 1992 Protocol to the International Convention on Civil Liability
8. International Convention Relating to Intervention on the High
Seas in Cases of Oil Pollution Casualties, 1969.
9. Special Trade Passenger Ships Agreement, 1971.
10. 1973 Protocol on Space Requirements for Special Trade
Passenger Ships.
11. Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1971.
12. 1976 Protocol to the Convention on Establishment of an
International Fund for Compensation for Oil Pollution Damage, 1971.
13. 1992 Protocol to Amend the International Convention on the
Establishment of an International Fund for Compensation for Oil
Pollution Damage, 1971.707
705 Ibid. Section 14(1) of the Bill provided that for the purposes of geographic scope,
the provisions of this Act shall also extend to the exclusive economic zone of
India. Section 14(2) provided that in this section, the term exclusive economic
zone of India shall have the same meaning as assigned to it in section 7 of the
Territorial Water, Continental Shelf, Exclusive Economic Zone and Other
Maritime Zones Act, 1976.
706 Supra note 98.
202
14. International Convention on Safe Containers, 1972.

15. Convention on the International Regulations for Preventing
Collisions at Sea, 1972.
16. International Convention for Safe Containers, 1972.
17. Protocol on Space Requirements for Special Trade Passenger
Ships, 1973.
18. International Convention for the Prevention of Pollution from
Ships, 1973.
19. 1978 Protocol to the International Convention for the Prevention
of Pollution from Ships, 1973.
20. 1997 Protocol to the International Convention for the Prevention
of Pollution from Ships, 1973.
21. International Convention for the Safety of Life at Sea, 1974.
22. 1978 Protocol to the International Convention for the Safety of
Life at Sea, 1974.
23. 1988 Protocol to the International Convention for the Safety of
Life at Sea, 1974.
24. United Nations Convention on a Code of Conduct for Liner
Conferences, 1974.
25. Convention on International Maritime Satellite Organization,
1976.
26. Convention on the Limitation of Liability for Maritime Claims,
1976.
27. 1996 Protocol to Amend the Convention on Limitation of
Liability for Maritime Claims, 1976.
28. Operational Agreement on the Convention on International
Maritime Satellite Organization, 1976.708
29. International Convention on the Standards of Training,
Certification and Watchkeeping for Seafarers, 1978.
30. International Convention on Maritime Search and Rescue, 1979.
31. United Nations Convention on Law of the Sea, 1982.
32. Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation, 1988.
707Available at:
http://www.imo.org/About/Conventions/StatusOfConventions/Documents/Status
%20 -%202014.pdf (Visited on September 11, 2014).
708 Ibid.
203
33. Protocol for the Suppression of Unlawful Acts Against the

Safety of Fixed Platforms Located on the Continental Shelf, 1988.
34. International Convention on Oil Pollution Preparedness,
Response And Co Operation, 1990.
35. International Convention on the Removal of Wrecks, 2007.709
5.5 ROLE OF JUDICIARY IN INTERPRETING MARITIME

STATUTES
The Supreme Court of India and the various Indian High Courts
have played a pivotal role in the interpretation and development of
maritime law over the past 65 years. After the promulgation of the
Constitution of India, the question relating to the extent of admiralty
jurisdiction came up for consideration before the Calcutta and Bombay
High Courts. The admiralty jurisdiction has been extended to a
considerable extent in England by the laws made by the British
Parliament. But in India, the admiralty jurisdiction continued to remain
the same as conferred on the High Courts by the Admiralty Court Act,
1861 and the Colonial Courts of Admiralty (India) Act, 1891.710
In Jayaswal Shipping Company vs. SS Leelavati711 (now
overruled),712 the Calcutta High Court dismissed a suit for a claim for
necessaries supplied at the port of Calcutta to a ship registered in
Madras, the owner of which was domiciled in India. The Court held
that since the owner of the ship was domiciled in India, the supplier of
necessaries could seek his remedy by ordinary process of law in
ordinary civil courts. While considering the extent of admiralty
jurisdiction of the Calcutta High Court, Justice P.B. Mukharji held that
in view of the Admiralty Court Act, 1861, the jurisdiction of the
Calcutta High Court was limited. It was further held that courts of
admiralty are courts of specific jurisdiction, and if a controversy does
not come within their specific jurisdiction, they cannot entertain it. In
this respect, admiralty courts are unlike the courts of residuary
709 Ibid.
711 AIR 1954 Calcutta 415.
712 This case was overruled by the Supreme Court vide its landmark judgement in the
case of M.V. Elizabeth vs. Harwan Investment and Trading Co. Pvt. Ltd. (AIR
1993 SC 1014).
204
jurisdiction, such as the Common Law Courts in England or the Courts

of Ordinary Civil Jurisdiction in India.713
In National Co. Ltd. vs. Asia Mariner714 (now overruled),715 the
Calcutta High Court reiterated its earlier view and held that as a court
of admiralty, the High Court at Calcutta is a court of prescribed or
limited jurisdiction. Its jurisdiction is prescribed by clause 26 of the
Charter Act 0f 1774 and by Section 2(2) of the Colonial Courts of
Admiralty Act, 1890. The jurisdiction has not been extended or
modified by any statute. Moreover, none of the subsequent British
statutes by which admiralty jurisdiction of the High Courts in England
has been extended or affected have been made applicable in India by
the Parliament of India.716
In Kamalakar Mahadev Bhagat vs. Scindia Steam Co. Navigation
Ltd.717 (now overruled),718 the Bombay High Court discussed the nature,
scope and extent of its admiralty jurisdiction with particular reference
to the torts committed on the High Seas. After a detailed consideration
of the admiralty laws in England and India, the court held that the High
Court of Bombay enjoyed the same admiralty jurisdiction after the
promulgation of the Constitution of India as was enjoyed by it earlier. It
was observed that the High Court of Judicature at Bombay, being one
of the colonial courts of admiralty under the Colonial Courts of
Admiralty (India) Act, 1891, exercises the same admiralty jurisdiction
as was exercised by the High Courts of Admiralty in England in 1890
713 Supra note 55, at 14. The Court relied upon the observations made by Justice
Blackburn in the case of Ex Parte Michael [(1881) 7 QB 658]. In this case, the
learned judge observed that “the rule of common law was that the court of
admiralty had no jurisdiction over a cause for necessaries supplied to a ship at
home; that jurisdiction belonged to the courts of common law. Then it was
enacted that the court of admiralty should have jurisdiction over a claim for
necessaries supplied to any ship elsewhere than at the Port to which the ship
belongs. That seems clearly enough to enact that the admiralty court shall have
jurisdiction when the necessaries are supplied in England, just as if they have
been supplied abroad; but then it is added, unless it is shown to the court that the
owner be domiciled in England. But that must be alleged and proved to the
satisfaction of the court before judgement; and it is too late afterwards”.
714 (1968) 72 CWN 635.
715 Supra note 109.
717 AIR 1961 Bombay 186.
718 Supra note 109.
205
when the Colonial Courts of Admiralty Act was passed by the British
Parliament.719
In Kashi Bai vs. SS Navigation,720 the Bombay High Court held that
a suit for damages in rem in respect of loss of life as a result of
collision on the high seas fell within the exclusive jurisdiction of
admiralty side of the High Court.721
The effect of these observations by the Bombay and Calcutta High
Courts was to limit the jurisdiction of the Indian High Courts and
resulted in the High Courts refusing to exercise admiralty jurisdiction
over disputes arising out of charter parties, disputes arising in
connection with outbound carriage of goods by sea, etc. The views of
the Bombay and Calcutta High Courts were followed later by the same
High Courts as well as by other High Courts.722 No doubt, in these
decisions the existence and continuance of admiralty jurisdiction of the
chartered High Courts (Bombay, Calcutta and Madras) was not
disputed in respect of certain disputes, but with regard to the extent of
jurisdiction of the High Courts in India, there was considerable doubt.
The view taken by the Bombay and Calcutta High Courts indicated that
the admiralty jurisdiction of the High Courts in India did not extend
beyond the ambit of the Acts of 1861, 1890 and 1891, and that the
expansion of the jurisdiction of the admiralty courts in England by later
British statutes did not have a similar effect of expanding the
jurisdiction of the Indian High Courts.723 Consequently, no High Court
in India acting in admiralty jurisdiction could order arrest or detention
of a foreign ship in an action in rem in respect of a cause of action
relating to outward cargo, as distinguished from inward cargo. The
restrictive interpretation made by the High Courts limited the admiralty
jurisdiction in India. It was perhaps inevitable that such a restrictive
scheme of things would not continue forever.724
Eventually, the Supreme Court of India was approached for its
pronouncement on the issue of admiralty jurisdiction, in the landmark

720 AIR 1961 Bombay 200.
722 Rangta Sons Pvt. Ltd. and Another vs. SS Edison Mariner and Another (1961) 66
CWN 1083. Sahida Ismail vs. Pekto R. Salvej Kor and Others (AIR 1973
Bombay 18). Reena Padhi vs. Jagdhir (AIR 1982 Orissa 57).
724 Ibid.
206
case of MV Elizabeth vs. Harwan Investment and Trading Co. Pvt.

Ltd.725 This case arose from a dispute in connection with an outbound
carriage of goods by sea from a port in India. The plaintiff (Harwan
Investment and Trading Co. Pvt. Ltd.) with its registered office at
Mormugao, Goa, had filed a suit for an action in rem invoking the
admiralty jurisdiction of the Andhra Pradesh High Court against the
defendant ship (MV Elizabeth) and its owner on the ground that the
defendants had acted in breach of duty by leaving the port of
Mormugao without issuing bills of lading and other documents for the
goods shipped, as required by the plaintiff shipper, and further in
discharging the goods and delivering them to the consignee in spite of
the directions of the plaintiff not to do so as the price had not been paid.
Pursuant to this, the vessel was arrested when it entered the port of
Vishakhapatnam. The defendants raised preliminary objection to the
jurisdiction of the Andhra Pradesh High Court. They contended that the
plaintiff’s suit against a foreign ship owned by a foreign company, not
having a place of residence or business in India, was not liable to be
proceeded against under the admiralty jurisdiction of the High Court by
an action in rem in respect of a cause of action having arisen in tort or
for a breach of obligation arising from the carriage of goods from a port
in India to a foreign port. It was contended that no court in India had
admiralty jurisdiction to proceed in rem against the ship when the cause
of action related to outbound carriage of goods from an Indian port to a
foreign port. The said objection was dismissed by the High Court.726
Thereafter, the defendants appealed to the Supreme Court of India vide
a Special Leave Petition under Article 136 of the Constitution of
India.727
The Supreme Court, in admitting the petition, found the opportunity
to lay down the position of law in India relating to admiralty
jurisdiction in finality. Counsel for the appellants (ship and its owner)
pointed to a catena of case law from the High Courts in India to support
his argument that the jurisdiction of the admiralty courts in India stood
frozen by the Acts of 1861, 1890 and 1891. On the other hand, counsel
for the respondent (Harwan Investment and Trading Co. Pvt. Ltd.)
argued that the judgement of the Andhra Pradesh High Court was
sound and correct, as it was based on a realistic appreciation of the
725 AIR 1993 SC 1014.

727 Ibid.
207
need for liberal construction of statutes so as to support an assumption

of jurisdiction to render justice, rather than resorting to a technical,
narrow and pedantic construction resulting in a state of helplessness.728
After a comprehensive analysis of the statutory provisions as well as
the stand taken by the High Courts of Bombay and Calcutta, the
Supreme Court accepted the argument of the respondent’s counsel and
upheld the decision of the Andhra Pradesh High Court, in what is
considered to be a veritable thesis on the subject of admiralty
jurisdiction. It was held that “the continued existence of colonial
statutes cannot be read to stultify the growth of law. There is neither
reason nor logic in imposing a fetter on the jurisdiction of the Indian
High Courts by limiting the same to the provisions of imperial statutes
of 1861, 1890 and 1891, and freezing any further growth of jurisdiction.
The High Courts in India are superior courts of record with unlimited
jurisdiction along with inherent and plenary powers to redress
grievances according to the principles of justice, equity and good
conscience”.729 Justice T.K. Thommen, dealing with the extent of
admiralty jurisdiction observed that:
“It is likewise within the competence of appropriate Indian Courts
to deal, in accordance with the general principles of maritime law and
the applicable provisions of statutory law, with all persons and things
found within their jurisdiction. The powers of the courts are plenary
and unlimited, unless they are curtailed expressly or by necessary
implication. Absent such curtailment of jurisdiction, all remedies which
are available to the courts to administer justice are available to a
claimant against a foreign ship and its owner found within the
jurisdiction of the concerned High Court. This power of the court to
render justice must necessarily include the power to make interlocutory
orders for arrest and attachment before judgement.”730
In upholding the admiralty jurisdiction of the High Courts in India
on the ground of their being superior Constitutional Courts and
enjoying unlimited jurisdiction under the Constitution, Justice
Thommen placed strong reliance on the decision of the United States
Supreme Court in The Schooner Exchange vs. M’Faddon and Others,731

729 Id., at 17. Para 17 of the judgement.
730 Supra note 2, at 18. Para 97 of the judgement.
731 US Supreme Court Reports (1812) 7 Cranch 114 : 3 Law Ed 287. In this case,
Chief Justice John Marshall observed that, “it would be obviously inconvenient
208
and observed that “admiralty jurisdiction is an essential aspect of

judicial sovereignty which under the Constitution and the laws is
exercised by the High Courts as superior courts of record to administer
justice in relation to persons and things within their jurisdiction. Power
to enforce claims against foreign ships by arresting and detaining them
is an essential attribute of admiralty jurisdiction”.732
In his concurring judgement, Justice R.M. Sahai observed that “the
English courts derive their creation, constitution and jurisdiction from
the Administration of Justice Act or the Supreme Court Act, but the
High Courts in India are established under the Constitution of India.
Article 225 of the Constitution of India preserves the jurisdiction,
including inherent jurisdiction of the High Courts which existed on the
date of the commencement of the Constitution, and Article 226 enlarges
it by making it not only a custodian of the fundamental rights of a
citizen, but as repository of power to reach its arms to do justice. A
citizen carrying on business which is a fundamental right, cannot be
rendered helpless on the premise that the jurisdiction of High Courts
stood frozen either under a statute of England or any custom or
practice prevailing there”.733
The judgement of the Supreme Court in this case overruled the
decisions of the Bombay and Calcutta High Courts pronounced in
earlier cases. The Supreme Court in reaching its conclusions took into
account the progress of admiralty jurisdiction the world over, both in
terms of municipal legislations as well as international conventions.
The most serious difficulty in deciding this case, as noted by the Apex
Court, was the lack of modern statutes and statutory definitions in India
in respect of maritime claims. As a result, the Court had to rely on
international conventions and foreign statutes on various points. While
doing so, the court expressed the hope that the unfortunate state of
affairs shall be brought to an end at the earliest. However, while
and dangerous to the society and would subject the laws to continual infraction,
and the Government to degradation, if alien individuals or merchants (trading in
ships) did not owe temporary and local allegiance, and were not amenable to the
jurisdiction of the country. The jurisdiction of a nation within its own territory is
necessary exclusive and absolute. It is susceptible of no limitation which is not
imposed by itself”.
732 Supra note 127.
733 Ibid. Para 101 of the judgement.
209
successive judgements have followed this case, the Parliament is yet to

enact an admiralty statute conforming to the needs of the modern era.734
In Videsh Sanchar Nigam Ltd. vs. MV Kapitan Kud and Others,735
the Supreme Court held that in order to enable a claimant to seek and
get a vessel arrested in respect of any maritime claim, all that he has to
do is to make out a prima facie case, and thereafter the arrest of the
vessel shall be granted. At the time of the application for arrest, the
court will not go into the evidence in the matter and the probability of
the plaintiff succeeding in the suit.736
In World Tanker Carrier Corporation vs. SNP Shipping Services
Pvt. Ltd. and Others,737 the Supreme Court had an opportunity to deal
with the issue of limitation of liability and the jurisdiction of Indian
Courts to entertain such actions. The Apex Court held that “a limitation
action, though it is normally filed in the admiralty jurisdiction of a
court, is slightly different from an ordinary admiralty action which
normally begins with the arrest of the defaulting vessel.738 The vessel
itself is a party to the admiralty suit through its master, and the plaintiff
must have claims provable in admiralty suit against the vessel. In the
case of an action for limitation of liability, it is the personal right of the
owner of the vessel to file a limitation action, or to use it as a defence to
an action against him for liability. It is a defensive action against claims
in admiralty filed by various claimants against the owner of the vessel
and the vessel itself. A limitation action need not be filed in the same
forum as the liability action. However, it must be a forum having
jurisdiction to limit the extent of such claims and whose decree in the
form of a limitation fund will bind all the claimants”.739
In Islamic Republic of Iran vs. MV Mehrab and Others,740 a Division
Bench of the Bombay High Court held that the High Court has the
power to arrest a vessel simplicitor for security only to secure a claim
in pending or future arbitration between the parties.741 Likewise, vessels

735 AIR 1996 SC 516.
737 AIR 1998 SC 2330.
739 Ibid.
740 AIR 2002 Bombay 517.
741 Supra note 55, at 20. Prior to this decision, in accordance with the procedural laws
of India, no suit would lie purely for security and such admiralty suit had to be a
210
can be arrested in execution of decrees and/or for payments under any

award, etc.742
In Liverpool and London Steamship Protection and Indemnity
Association Ltd. vs. MV Sea Success,743 the Supreme Court held that
“unpaid P & I calls would come within the purview of the expression
necessities supplied to a ship, and thus, is a maritime claim enforceable
in admiralty courts in India. A ship can be arrested in India for the
recovery of unpaid P & I calls. The court observed that in the absence
of Indian statutory law in this area, interpretative changes must be
made having regard to the ever changing global scenario. The court
also noted that the supply of necessaries is a maritime lien in the United
States of America and that unpaid insurance premium was a necessity
there, which principle if in consonance with Indian law, could be
applied here”.744 The Apex Court followed the American decision
delivered in the case of Equilease Corporation vs. MV Sampson,745 in
holding that since insurance is essential to keep the vessel in
commerce, insurance is a necessity. Since a compulsory insurance
regime has come into being in India as regards P & I cover, unpaid P &
I calls would now come within the purview of the term necessities
supplied to a ship. Therefore, unpaid insurance premiums give rise to a
maritime claim rendering ships liable to arrest for recovery thereof, and
a claim for unpaid insurance premium is now enforceable in India as a
maritime claim.746
From the above discussion we can note that maritime law in India is
not static, but continuously developing. The Supreme Court of India
and various High Courts are very active and responsible for the
continuous development of maritime law in India.
substantive suit. However, with the above decision, even in cases where there is
an agreement between the parties for referring disputes to arbitration or other
alternate dispute resolution forum, a party could approach the admiralty court for
the arrest of a vessel as security for its claim in such arbitration.
742 Ibid.
743 AIR 2003 SC 218.
745 793 F. 2d 598.
211
5.6 THE ENRICA LEXIE INCIDENT

The Enrica Lexie Incident was a shootout incident which occurred
on 15th February 2012 between the Italian marines on board the
privately owned oil tanker Enrica Lexie and the sailors of the Indian
fishing boat St. Antony, which led to the death of two Indian fishermen.
At the time of the shootout incident, the Indian boat was approximately
20.5 nautical miles away from the coast of Kerala. It was outside the
territorial waters of India but within the contiguous zone of India. The
incident sparked a diplomatic row between the Governments of India
and Italy, stemming from a conflict of opinions over legal jurisdiction
and functional immunity.747
According to the available reconstructions, the incident occurred
around 16.30 hours on 15th February 2012, when Italian Navy marines,
on board a privately owned Italian flagged Aframax oil tanker MT
Enrica Lexie, opened warning fire in the direction of an approaching
boat.748 The Italian Marines were members of Nuclei militari di
protezione (Military protection teams, or NMP), engaged in anti piracy
mission under the Resolutions 1970 (2011) and 1973 (2011) adopted by
the United Nations Security Council.749
Indian coastal police were alerted that two crew members of St.
Antony, an Indian fishing trawler, had been killed by gunfire from an
oil tanker. Indian Coast Guard contacted the Enrica Lexie, asking its
captain for his collaboration in identifying some suspect pirates. The
Italian oil tanker, which was already far away from Indian coast,
reversed course and moored in the port of Kochi. On 19th February
2012, Kerala police members went onboard the Enrica Lexie, and two
Italian Navy marines, Chief Master Sergeant Massimiliano Latorre and
Sergeant Salvatore Girone, belonging to the San Marco Regiment of
the Italian Navy, were arrested and charged of murder of the two crew
members of St. Antony.750
After almost three and a half years since the event, the two Italian
Marines are still detained in Italy's Embassy in New Delhi, awaiting
criminal proceedings. They have been booked under various offences
of the Indian Penal Code, including murder, by the National
747 Available at: http://en.wikipedia.org/wiki/Enrica_Lexie_incident (Visited on May

23, 2015).
748 Ibid.
749 Ibid.
750 Ibid.
212
Investigating Agency (NIA). They were also booked under Section 3 of

the Suppression of Unlawful Acts Against The Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf (SUA) Act, 2002.
But this charge was dropped later by the Government of India.
However, no chargesheet has been filed against them till date and the
trial is yet to commence.751
5.7 RECOMMENDATIONS OF PARVEEN SINGH COMMITTEE

The discussion under the previous headings brings out the
unsatisfactory state of maritime law in India. It has not only failed to
keep pace with the political and constitutional changes in the country,
but has also lagged far behind the European and American countries.
Disputes in maritime matters being more often international in
character, the state of Indian maritime law at present is deplorable and
even derogatory to the sovereign status of the country.752 These
shortcomings and deficiencies were noticed by the Supreme Court in
the landmark case of MV Elizabeth vs. Harwan Investment and Trading
Co. Pvt. Ltd.753 But even before the Supreme Court had occasion to deal
with the matter, the shipping industry had been highlighting from time
to time the need to make India’s admiralty law up to date, responsive to
the requirements of the shipping industry and conducive to the efficient
and speedy disposal of maritime disputes. Recognizing the urgency of
an enquiry into the state of this branch of law, the Ministry of Surface
Transport of the Government of India set up, in December 1986, a
Committee under the Chairmanship of Shri Parveen Singh (the then
Director General of Shipping) for going into the matter thoroughly.754
The Committee submitted its report in 1987. The Committee
surveyed the international scene, discussed the provisions of the
existing law applicable in India, and the changes needed in the present
law to make it more responsive to the present day needs. It noted that in
maritime matters, a claimant is often tempted to seek relief not merely
against the owner of a ship, but also to seek relief by way of arrest of
the ship, as that is the most effective way by which claims as well as
maritime liens and mortgages could be enforced. Many countries had
751 Ibid. For details see Chapter VIII.

753 AIR 1993 SC 1014.
213
enacted new laws to govern maritime liens and claims.755 Even in

England, fresh legislation had been enacted, i.e., the Supreme Court
Act, 1981. But India was still following the archaic British law as
adumbrated in the Admiralty Act of 1861. This had to be changed. It
was essential to enlarge the scope of legislation to cover claims
pertaining to oil pollution, loss of life, personal injury, towage of ship,
pilotage of ship, port dues, forfeiture of ships or cargo and other
matters. It was also necessary to provide for exercise of jurisdiction in
rem and in personam and also to make provisions enabling the arrest
not only of the ship that causes damage, but also of a sister ship, i.e., a
ship under the beneficial ownership of the same owner.756 It was also
necessary to lay down legal provisions regarding priorities of the
claims that would arise for settlement out of the sale proceeds of a ship,
in particular, a provision for priority of crew’s wages over all other
claims against the ship, except those of salvage.757 Taking into account
all these factors, the committee gave its suggestions and
recommendations, which are mentioned hereunder:
I. It recommended the enactment of a legislation defining the scope
of admiralty jurisdiction and submitted the draft of an Admiralty Act of
India for the consideration of Parliament.758
II. It discussed the role of the High Courts in exercising admiralty
jurisdiction and suggested a reorientation of the courts administering
admiralty law. It was of the view that there was a need for the Central
Government to constitute independent admiralty courts and delink
admiralty jurisdiction from the existing High Courts, so as to ensure
that maritime claims received undivided and quick attention at the
hands of experts. A suggestion was made for the constitution of these
courts in the light of the provisions contained in the Central
Administrative Tribunals Act, 1985.759
III. It suggested that to avoid divergent decisions in the admiralty
courts, a single admiralty appeal court should be constituted to entertain
a first appeal.760

756 Ibid.
757 Ibid.
758 Ibid.
759 Ibid.
760 Ibid.
214
IV. Taking into consideration the fact that Indian ships are under the
full control of the Government of India under the Merchant Shipping
Act, 1958, it recommended that no arrest of an Indian ship should be
effected unless at least six days notice was given to the owner thereof,
and he failed to provide security to the court to cover the claim.761
V. It suggested that interests of third parties who may have claims
should be protected by giving 90 days notice in newspapers.762
VI. It suggested that once the ship is sold by the orders of the court,
the purchaser should get a title to it free from all encumbrances, with
no liability in respect of the claims.763
VII. It recommended that courts should be empowered to lay down
the inter se priority as between mortgages and maritime liens.764
5.8 RECOMMENDATIONS OF THE 13th LAW

COMMISSION OF INDIA
The subject of admiralty jurisdiction was taken up for an indepth
study by the 13th Law Commission of India suo motu under the
Chairmanship of Justice KN Singh (Former Chief Justice of India), in
view of the observations made by the Supreme Court in the landmark
case of MV Elizabeth vs. Harwan Investment and Trading Co. Pvt.
Ltd.765 relating to the jurisdiction of the Andhra Pradesh High Court in
admiralty matters.766 After an in depth analysis of national and
international legal framework governing admiralty jurisdiction, the
Law Commission of India presented its 151st Report on Admiralty
Jurisdiction to the Parliament on 17th August 1994. In the covering
letter to the report, addressed to Mr. PV Narasimha Rao (the then Prime
Minister of India), Justice KN Singh (the Chairman of the 13th Law
Commission) lamented that India does not have admiralty law of its
own. Instead, our courts continue to administer the admiralty
761 Ibid.
762 Ibid.
763 Ibid.
764 Ibid.
765 AIR 1993 SC 1014.
766 Other members of the 13th Law Commission of India who took part in the
preparation of this report were Justice S. Ranganathan (full time member),
Professor (Dr.) D.N. Sandanshiv (full time member), Mr. P.M. Bakshi (part time
member), Mr. M. Marcus (part time member) and Mr. C.H. Prabhakara Rao
(Member Secretary).
215
jurisdiction in accordance with the statutes enacted by the British

Parliament and extended to the then colonial India. The British
admiralty law has undergone several radical changes, but in India there
has been no legislative exercise to enact or amend the law of
admiralty.767 The suggestions and recommendations of the Law
Commission of India to improve the existing legal framework are
mentioned hereunder:
I. The Commission recommended the enactment of an Indian
Admiralty Act, the draft of which was annexed to its report. In
preparing this draft, due regard was taken of the various provisions
contained in the draft Admiralty Act of India which was proposed by
the Praveen Singh Committee, as well as the relevant provisions of the
British statute on the subject, i.e., the Supreme Court Act, 1981.768
II. It recommended that the wide range of subjects now definitely
within Indian admiralty jurisdiction, particularly those relating to
maritime crimes, contracts, torts, etc., should continue with the
jurisdiction of admiralty courts.769
III. It recommended that the jurisdiction of the Indian admiralty
courts should be extended to all waters that are in fact navigable,
regardless of whether they are influenced by the tide, or landlocked or
open, or salt or fresh.770
IV. It recommended that the Indian admiralty jurisdiction should be
extended to all ships on the High Seas (except sovereign ships) and also
over injurious acts done on the High Seas if any Indian element is
involved.771
V. It recommended that a committee of high departmental officials
be set up to review the process of implementation of international
conventions, protocols and agreements and expedite the same.772
VI. It recommended that the following Acts should be repealed:
(i) The Admiralty Offences (Colonial) Act, 1849.
(ii) The Admiralty Jurisdiction (India) Act, 1860.
(iii) The Admiralty Court Act, 1861.
767 Law Commission of India, “Covering Letter to the One Hundred and Fifty First
Report on Admiralty Jurisdiction” (1994).
769 Ibid.
770 Ibid.
771 Ibid.
772 Ibid.
216
(iv) The Colonial Courts of Admiralty (India) Act, 1891.

(v) Clauses pertaining to admiralty jurisdiction in the Letters Patent
relating to the High Courts of Bombay, Calcutta and Madras.773
In the end, the Law Commission observed that the above mentioned
reforms are long overdue and their urgency has also been emphasized
by the Supreme Court in the MV Elizabeth Case.774 It was hoped by the
Commission that the Government would give top priority to this report
and take expeditious action in pursuance thereof.775 However, it is very
unfortunate that due to the callous attitude of the Parliament towards
maritime law, this report has remained a dead letter for the past 20
years and its recommendations have fallen upon deaf ears. Although
the Admiralty Bill, 2005, and the Piracy Bill, 2012, were introduced in
the Lok Sabha, they could not see the light of the day as the
Government had other important political priorities to fulfil. It is high
time that these Bills should be reintroduced and passed at the earliest so
as to bring India’s maritime law in line with the developed,
independent and sovereign countries of the world.
5.9 RECOMMENDATIONS OF THE 20th LAW

COMMISSION OF INDIA
The 20th Law Commission of India, under the Chairmanship of
Justice Ajit Prakash Shah (Former Chief Justice of the Delhi High
Court) decided to continue with the project titled “Identification of
Obsolete Laws”, which was undertaken by the previous Law
Commission suo motu, but could not be accomplished because of the
expiry of its tenure.776 Various Ministries were approached seeking
relevant information. In the meantime, Mr. Ravi Shankar Prasad, the
Hon’ble Union Minister for Law and Justice, wrote to the Commission
on 24th June, 2014, asking for its suggestions and recommendations on
the same subject. Keeping the above developments in view, the
Commission decided to undertake a study titled “The Legal
773 Ibid.
774 AIR 1993 SC 1014.
776 Other members of the 20th Law Commission of India who took part in the
preparation of this report were Justice S.N. Kapoor (full time member), Justice
Usha Mehra (full time member), Professor (Dr.) Mool Chand Sharma (full time
member), Dr. S.S. Chahar (member secretary), Dr. Sanjay Singh (ex officio
member) and Mr. P.K. Malhotra (ex officio member).
217
Enactments: Simplifications and Streamlining”. The study would be

completed in instalments. The first of such instalment titled “Obsolete
Laws: Warranting Immediate Repeal” was presented to the Law
Minister in the form of an interim report.777
The Law Commission in its interim report No. 248, submitted on
12th September 2014, has suggested the immediate repeal of 72 laws
which have either outlived their use, have served their purpose, are
ultra vires the provisions of the Constitution or are derogatory to the
sovereign status of India. The oldest statute on the list is the Bengal
Districts Act, 1836, while the latest statute on the list is the Shipping
Development Fund Committee (Abolition) Act, 1986, which is a
maritime statute (it is the only maritime statute on the list). In addition
to this list, the Law Commission also submitted another list of 261
statutes which are under its scrutiny with a view to assess suitability for
their repeal.778 However, it is a matter of surprise as well as shock that
the 20th Law Commission has not bothered to include in these two lists
any of the colonial maritime and admiralty statutes suggested for repeal
by the 151st Report of the 13th Law Commission of India.
5.10 MARITIME BOUNDARY DISPUTES BETWEEN

INDIA AND ITS NEIGHBOURS
Length of the coastline of India including the coastlines of Andaman
and Nicobar Islands in the Bay of Bengal and Lakshwadweep Islands in
the Arabian Sea is 7516.6 kms. Length of coastline of the Indian
mainland is 6100 kms. Coastline of Indian mainland is surrounded by
Arabian Sea in the west, Bay of Bengal in the east, and Indian Ocean in
the south. India shares maritime boundaries with Pakistan in the west,
Sri Lanka and Maldives in the south and Bangladesh, Myanmar,
777 Available at: http://lawcommissionofindia.nic.in/reports/Report248.pdf (Visited

on September 15, 2014).
778 Ibid. The Law Commission observed that the purpose of the Shipping
Development Fund Committee (Abolition) Act, 1986, was to abolish the
Shipping Development Fund Committee and provide for the disposal of its
funds, assets and liabilities. These have been achieved. Thus, there is nothing
further to be done under the Act. Also, this Act has been recommended for repeal
by the P.C. Jain Commission and the 159th Report of the Law Commission,
1998.
218
Thailand and Indonesia in the east.779 Maritime boundary disputes

between India and its neighbours are mentioned hereunder:
5.10.1 Sir Creek Dispute with Pakistan

Sir Creek is a 96 km (60 miles) long strip of water that is disputed
between India and Pakistan in the Rann of Kutch marshland. The creek,
which opens up into the Arabian Sea, divides the Kutch region
between the Indian State of Gujarat and the Sindh province of Pakistan.
Its local name is “Baan Ganga”. Sir Creek is named after
the British representative. The long standing dispute hinges in the
actual demarcation from the mouth of Sir Creek to the top of Sir Creek,
and from the top of Sir Creek eastward to a point on the line designated
on the Western Terminus. From this point onwards, the boundary is
unambiguously fixed as defined by the Tribunal Award of 1968. The
creek itself is located in the uninhabited marshlands. During
the monsoon season between June and September, the creek floods its
banks and envelops the low lying salty mudflats around it. During
the winter season, the area is home to flamingoes and other migratory
birds.780
The dispute lies in the interpretation of the maritime boundary line
between Kutch and Sindh. Before India's independence, the disputed
region was a part of the Bombay Presidency of British India.
After India's independence in 1947, Sindh became a part of Pakistan
while Kutch remained a part of India. Pakistan lays claim to the entire
creek as per paras 9 and 10 of the Bombay Government Resolution of
1914 signed between the then Government of Sindh and Rao Maharaj,
the ruler of the princely state of Kutch. The resolution, which
demarcated the boundaries between the two territories, included the
creek as part of Sindh, thus setting the boundary as the eastern flank of
the creek. The boundary line, known as the "Green Line", is disputed
by India which maintains that it is an “indicative line”, known as a
“ribbon line” in technical language. India sticks to its position that the
boundary lies mid-channel as depicted in another map drawn in 1925
779 Available at: http://www.thecolorsofindia.com/interesting-

facts/geography/length-of- coastline-of-india.html (Visited on September 16,
2014).
780 Available at: http://en.wikipedia.org/wiki/Sir_Creek (Visited on September 16,
2014).
219
and implemented by the installation of mid channel pillars back in

1924.781
India supports its stance by citing the Thalweg
Doctrine in International Law. The doctrine states that river boundaries
between two states may be, if the two states agree, divided by the mid
channel. Though Pakistan does not dispute the 1925 map, it maintains
that the Doctrine is not applicable in this case as it only applies to
bodies of water that are navigable, which the Sir Creek is not.782 India
rejects the Pakistani stance by maintaining the fact that the creek is
navigable in high tide, and that fishing trawlers use it to go out to sea.
Another point of concern for Pakistan is that Sir Creek has changed its
course considerably over the years. If the boundary line is demarcated
according to the Thalweg doctrine, Pakistan stands to lose a
considerable portion of the territory that was historically part of the
province of Sindh. Acceding to India's stance would also result in the
shifting of the land/sea terminus point several kilometres to the
detriment of Pakistan, leading in turn to a loss of several thousand
square kilometres of its Exclusive Economic Zone under the United
Nations Convention on Law of the Sea, 1982.783
In 1965, the British Prime Minister Harold Wilson successfully
persuaded both countries to end hostilities and set up a tribunal to
resolve the dispute. A verdict was reached in 1968 which saw Pakistan
getting 10% of its claim of 9,000 km² (3,500 sq. miles). The Tribunal
supported India’s claim to 90% of the Rann and fixed the land border
up to a point called the western terminus. However, the Rann of Kutch
dispute which was finally resolved by the Tribunal’s Award in 1968
excluded the short agreed border from the head of Sir Creek eastward.
The two sides had also agreed to exclude the boundary from the head of
Sir Creek downward to the west. As of 2014, even after eight rounds of
talks, India and Pakistan have not yet been able to resolve the dispute.
It has, so far proved too intractable to accommodate both India’s and
Pakistan’s demands. The leaderships in the two countries have shown
an interest in resolving the dispute but actual negotiations have proved
781 Ibid.
782 Ibid.
783 Ibid.
220
otherwise. It seems that the desire to negotiate prevails on both sides,

but the desire to resolve the dispute is missing.784
India entered into a river water sharing agreement with Pakistan in
1960. At the time of independence, the boundary line between the two
newly created independent countries, i.e. India and Pakistan was drawn
right across the Indus Basin, leaving Pakistan as the lower riparian
State. Moreover, two important irrigation head works, one at Madhopur
on Ravi River and the other at Ferozepur on the Sutlej River, on which
the irrigation canal supplies in Punjab (Pakistan) had been completely
dependent, were left in the Indian territory. A dispute thus arose
between two countries regarding the utilization of irrigation water from
the existing facilities. Negotiations held under the good offices of
International Bank for Reconstruction and Development (World Bank),
culminated in the signing of Indus Waters Treaty in 1960. The Treaty
was signed at Karachi by Field Marshal Mohammad Ayub Khan, the
then President of Pakistan, Jawaharlal Nehru, the then Indian Prime
Minister and Mr. W.A.B. Illif of the World Bank on 19th September
1960. The Treaty however became effective with retrospective from 1st
April 1960.785 The Indus system of rivers comprises three Eastern
Rivers (Ravi, Beas and Sutlej and their tributaries) and three Western
Rivers (Indus, Jhelum and Chenab and their tributaries). Under the
Treaty, the waters of Eastern Rivers are allocated to India and the
waters of western rivers are allocated to Pakistan. India is under
obligation to let flow the waters of the Western Rivers except for the
following uses: (a) Domestic Use, (b) Non-consumptive use, (c)
Agricultural use as specified, (d) Generation of hydro-electric power as
specified. India has been permitted to construct storage of water on
western rivers upto 3.6 million acre feet (MAF) for various purposes.
Under the Treaty, India and Pakistan have each created a permanent
post of Commissioner for Indus Waters. They together constitute the
Permanent Indus Commission (PIC), which is entrusted with the
implementation of the Treaty. The PIC is required to hold meetings and
tours and submit report on its work to the two Governments every year.
784 Ashutosh Misra, “The Sir Creek Boundary Dispute: A Victim of India Pakistan
Linkage Politics” IBRUBSB 95 (Winter 2000), available at:
https://www.dur.ac.uk/resources/ibru/publications/bsbfirstpages/bsb84_misra_p1
.pdf (Visited on August 4, 2015).
785 Available at: http://wrmin.nic.in/forms/list.aspx?lid=346 (Visited on August 4,
2015).
221
Both countries are required to exchange information related to river

flows observed by them, not later than three months of their
observation and to exchange specified information on Agricultural Use
every year. India is under an obligation to supply information of its
storage and hydroelectric projects as specified.786
5.10.2 India - Sri Lanka Maritime Disputes

India has some maritime issues to be settled with Sri Lanka,
considered one of the friendliest of neighbours. Sri Lanka preferred
some kind of a strategic balance being established by the great powers
to ensure that there was no hegemony of any single power in the Indian
Ocean region. It was for this reason it initiated the concept of “Indian
Ocean as a Zone of Peace” (IOZP). However, practical difficulties in its
implementation led to the demise of the IOZP initiative. Despite the
existence of two maritime agreements of 1974 and 1976, there are
certain irritants between the two neighbours. The main issue is
regarding “Katchchativu”, a small barren island in the Palk Bay area.
Through the 1974 agreement, India agreed to accept Sri Lanka's
sovereignty over this island but with some safeguards for Indian
fishermen. However, later the Sri Lankan Government started to argue
that the agreement did not give any fishing rights, but only the rights to
dry their fishing nets, to rest, and to the right of pilgrims to visit the
island for religious purposes. Until civil war broke out in Sri Lanka in
1983, the Indian fishermen did not find it difficult to operate near the
island for fishing. At times, attracted by good quality fish and prawns,
the Indian fishermen strayed into the Sri Lankan waters. In due course
of time, however, the Sri Lankan Navy became unfriendly to Indian
fishermen owing to their inability to distinguish between genuine
fishing vessels and boats used for smuggling goods for Sri Lankan
Tamil militants. Consequently, indiscriminate firing and killing of
Indian fishermen became common. Despite various outcries, the
humanitarian aspect of the problem was overlooked by both countries.
Various options like issuing identity cards to Indian fishermen and
786 Available at:

http://wrmin.nic.in/writereaddata/InternationalCooperation/Brief4661612656.pdf
222
letting the island in perpetuity to India have been explored, but not
converted into action.787
Another maritime issue exists in the form of Sethusamudram
Shipping Canal Project undertaken by India to link Palk Bay with the
Gulf of Mannar through a shipping canal. Apart from cutting short
distances for Indian ships navigating between eastern and western
coasts of India, the Canal is expected to further the underdeveloped
coastal regions of Tamil Nadu. Environmentalists, however, feel that
all these come with a huge cost to the rich marine resources in the area.
Sri Lanka has reservations on this venture as well, but remains silent
fearing strains in bilateral relations. Aside from environmental and
livelihood concerns of its fishermen, Sri Lanka is more concerned
about the loss of container traffic at its Colombo and Galle ports.788
5.10.3 India – Bangladesh Maritime Dispute

The Arbitration Tribunal on the India-Bangladesh Maritime
Delimitation delivered its ruling on 7th July 2014. The Tribunal was set
up under the Permanent Court of Arbitration in The Hague, in the
matter of the Bay of Bengal Maritime Boundary Delimitation between
India and Bangladesh. India and Bangladesh have been engaged in long
drawn out and inconclusive negotiations on the delimitation of their
maritime boundary since 1974, and had engaged in eight rounds of
bilateral negotiations over the 1974-2009 period. In October 2009,
Bangladesh served India with notice of arbitration proceedings under
the United Nations Convention on the Law of the Sea, 1982, for
delimitation of the Maritime Boundary. Both India and Bangladesh are
parties to the UN Convention on the Law of the Sea, 1982. Since India
and Bangladesh had not chosen a dispute settlement forum under the
Convention, the case was decided by its default procedure and a 5
member Arbitration Tribunal was established under Annex VII of the
Convention for Delimitation of the Maritime Boundary between the
two nations. The maritime boundary so delimited covered the territorial
sea, the exclusive economic zone (EEZ) and the continental shelf.789
787 Available at: http://www.ipcs.org/books-review/india/maritime-cooperation-

between-india-and-sri-lanka-231.html (Visited on September 16, 2014).
788 Ibid.
789 Available at: http://rt.com/op-edge/172960-un-india-bangladesh-dispute-end/,
(Visited on September 16, 2014).
223
Bangladesh is a densely populated country but has limited natural

resources. Although entitled to 12 nautical miles of territorial sea and
200 nautical miles of EEZ, Bangladesh’s proposed maritime boundaries
overlapped with those of its neighbours and Bangladesh was faced with
the possibility of being sandwiched between India and Myanmar. This
explains its efforts to make the most of whatever resources it could
stake a claim to.790 Bangladesh’s effort was to ensure a decision on
maritime delimitation that gave it the right to an extended continental
shelf, that is, an area beyond 200 nautical miles. Bangladesh also
argued for the use of the Angle Bisector method as being the most
suitable method and arrived at a 180° perpendicular delimitation line.791
In its attempt to get the most advantageous line, it argued that the
equidistance method was not suitable for states such as Bangladesh
with concave coastlines as its effect would be to pull the line of the
boundary inwards in the direction of the concavity. Given the
geographical location of Bangladesh between India and Myanmar,
when two such delimitation lines are drawn on different points of a
concave coast, they will inevitably meet at a relatively short distance
off the coast resulting in a cut off for Bangladesh. This would restrict
Bangladesh's maritime zones to 180-190 nautical miles from its
coastline and thus deny it its legitimate entitlement to an outer
continental shelf.792
Bangladesh also argued for a second deflection of its 180° line so as
to claim a huge swathe of maritime territory in the outer continental
shelf. Overall, Bangladesh claimed an area of about 32,000 sq km of
extended continental shelf on the basis of this second deflection, citing
its large coastal front, geology and geomorphology of the area and
claiming that all the sediments in the Bay of Bengal which form the
outer continental shelf flow from the rivers of Bangladesh. The logic
advanced was that as the outer continental shelf was clearly an
extension of the land mass of Bangladesh, the country enjoyed an
inherent entitlement to the outer continental shelf.793
In its counter memorial, India pressed for following the
internationally recognized equidistance methodology for delimitation
of the territorial sea, EEZ and continental shelf alike, emphasizing that
790 Ibid.
791 Ibid.
792 Ibid.
793 Ibid.
224
this is the most equitable method for delimitation. India countered

Bangladesh’s claim of coastal instability by pointing out that this can
be regarded as a special circumstance only if it renders selection of
appropriate base points impossible. It argued that Bangladesh’s
proposed line is not a true depiction of the coastlines of the two
countries.794 A major bone of contention was New Moore Island, which
has been claimed both by India and Bangladesh. India had made the
case that the Radcliff Award fixes the boundary in this sector as the
midstream of the main channel of the rivers Hariabhanga and
Raimangal until it meets the Bay of Bengal. On this basis, India argued
that the Land Boundary Terminus should lie to the east of New Moore
Island. Bangladesh argued that the Terminus should lie to the west of
the Island.795
A reading of the 181 page award given by the Tribunal suggests that
the Tribunal has admitted the justice of India’s argument but
nevertheless proceeded to fix the delimitation line in a rather arbitrary
fashion. To illustrate: the Tribunal acknowledges that the equidistance
method is a more accurate method and rejects Bangladesh’s proposed
angle bisector method. While the Tribunal has acknowledged in its
award that the purpose of adjusting an equidistance line is not to
refashion geography, or to compensate for the inequalities of nature and
that there can be no question of distributive justice, it has adjusted the
provisional equidistance line to a remarkable degree.796
It has justified this as being necessary to ameliorate the negative
impact on Bangladesh’s entitlements in the area within and beyond 200
nautical miles, without unduly impacting India’s entitlements. It has
offered no explanation for the quantum of this adjustment. It is possibly
this lack of transparency that has provoked one of the members of the
Tribunal to place his dissent on record, pointing out that the adjustment
to the provisional equidistance line has been made arbitrarily, that the
identification of the relevant area based on which the adjustment has
been made, is equally arbitrary and that the creation of a grey area is
contrary to law and policies.797
All things considered, the award marks the settlement of the
maritime boundary in accordance with international law. It is a binding
794 Ibid.
795 Ibid.
796 Ibid.
797 Ibid.
225
award with no scope for further appeal by either party to the dispute.
This is to be welcomed by all as this has long been a thorn in the India
Bangladesh relationship.798 For India, acknowledgement of its
sovereignty over New Moore Island, with the concomitant access this
provides to the Hariabhanga River, is a triumph. In all other senses, the
award has given something to both sides, though neither has got all that
it had hoped for. While Bangladesh has gained over 19,000 square km
in the EEZ, little of its claim in the continental shelf has been admitted.
While India’s rights over its extended continental shelf have been by
and large protected, Bangladesh has gained an outlet to the extended
continental shelf, one of its key demands. India can derive satisfaction
from the fact that the award has split the area in question in the ratio of
1:2.81 in favour of India, which is significantly closer to India’s claim
than to that of Bangladesh. 799
This award allows both countries to go about their business of
fishing and exploration and exploitation of marine resources in their
respective territories. The award provides clarity and legal certainty on
the exact location of the maritime boundary between the two nations,
thus enhancing coastal and maritime security. This will help in
preventing incidents of inadvertent crossing over of fishermen of both
countries. Thankfully, this award will prevent future face off situations
between the naval forces and coast guards on both sides, as has
happened in the past over New Moore Island. The Indian government
has welcomed the judgment for having brought about a settlement
which can make the Bay of Bengal a zone of peace and tranquility.800
5.10.4 India – Myanmar Maritime Dispute

The only dispute regarding maritime boundary demarcation between
India and Myanmar arose over the issue of ownership of “Narcondam”
island in the Andaman Sea. It is a small volcanic island, having an area
of 7 square kilometres. It stands 710 metres above sea level and is
bounded by cliffs 100 metres in height. Until 1986, Myanmar claimed
sovereignty over this island on many occasions. This claim was given
up on reaching an agreement with India on the delimitation of
798 Ibid.
799 Ibid.
800 Ibid.
226
the maritime boundary between the two nations in the Andaman Sea,
the Coco Channel and the Bay of Bengal on 14th September 1987.801
5.11 INDIA’S MARITIME BOUNDARY AGREEMENTS

WITH ITS NEIGHBOURS
India has entered into maritime boundary agreements with the
following countries:
Date of Entry into Force of
Nation(s) Location
the Agreement
Sri Lanka Palk Straits maritime 8th July 1974802

Boundary
Sri Lanka Gulf of Mannar and Bay 10th May 1976803
801 Available at: http://en.wikipedia.org/wiki/Narcondam_Island (Visited on October

13, 2014).
802 James Kraska, “Indian Ocean Security and The Law of the Sea” 43 GJIL 493
(2012). Article 1 of the agreement provides that the boundary between Sri Lanka
and India in the waters from Palk Strait to Adam's Bridge shall be arcs of Great
Circles defined by latitude and longitude. Article 4 provides that each country
shall have sovereignty and exclusive jurisdiction and control over the waters, the
islands, the continental shelf and the subsoil thereof, falling on its own side of
the aforesaid boundary. Article 5 provides that subject to the foregoing, Indian
fishermen and pilgrims will enjoy access to visit Kachchativu island as hitherto,
and will not be required by Sri Lanka to obtain travel documents or visas for
these purposes. Article 6 provides that the vessels of Sri Lanka and India will
enjoy in each other's waters such rights as they have traditionally enjoyed
therein. Article 7 provides that if any single geological, petroleum or natural gas
structure or field, or any single geological structure or field of any other mineral
deposit, including sand or gravel, extends across the boundary referred to in
Article 1 and the part of such structure or field which is situated on one side of
the boundary is exploited, in whole or in part, from the other side of the
boundary, the two countries shall seek to reach agreement as to the manner in
which the structure or field shall be most effectively exploited and the manner in
which the proceeds deriving therefrom shall be apportioned.
803 Ibid. Article 1 of the agreement provides that the maritime boundary between Sri
Lanka and India in the Gulf of Mannar shall be arcs of great circles defined by
latitude and longitude. Article 2 provides that the maritime boundary between Sri
Lanka and India in the Bay of Bengal shall be arcs of great circles defined by
latitude and longitude. Article 5(1) provides that each Party shall have
sovereignty over the historic waters and territorial sea, as well as over the
islands, falling on its side of the aforesaid boundary. Article 5(2) provides that
each Party shall have sovereign rights and exclusive jurisdiction over the
continental shelf and the exclusive economic zone as well as over their
227
of Bengal
Indonesia Continental Shelf 17th December 1974804 and

Boundary 15th August 1977805
Sri Lanka and the Trijunction point in Gulf 31st July 1976806
resources, whether living or non-living, falling on its side of the aforesaid

boundary. Article 5(3) provides that each Party shall respect rights of navigation
through its territorial sea and exclusive economic zone in accordance with its
laws and regulations and the rules of international law.
804 Ibid. Article 1 of the agreement provides that the boundary of the Indian and the
Indonesian continental shelf in the area between Great Nicobar (India) and
Sumatra (Indonesia) is the straight lines connecting Points 1 and 2, 2 and 3, and 3
and 4. The coordinates of these Points are specified as: Point 1: 06° 38'.5 N, 94°
38'.0 E; Point 2: 06° 30'.0 N, 94° 32'.4 E; Point 3: 06° 16'.2 N, 94° 24'.2 E; and
Point 4: 06° 00'.0 N, 94° 10'.3 E. Article 3 provides that if any single geological,
petroleum or natural gas structure or field, or other mineral deposit of whatever
character, extends across the boundary line referred to in Article 1, the two
Governments shall communicate to each other all information in this regard and
shall seek to reach agreement as to the manner in which the structure, field or
deposit will be most effectively exploited and the benefits arising from such
exploitation will be equitably shared. Article 4 provides that any dispute between
the two Governments relating to the interpretation or implementation of this
Agreement shall be settled peacefully by consultation or negotiation.
805 Ibid. Article 1 of the agreement provides that the boundary of the seabed between
India and Indonesia in the Andaman Sea is the straight lines connecting points l
and K, points K and N, and points N and O. The co-ordinates of these points are
specified as: Point 1: 06°38'.5 N 94°38'.0 E, Point K: 07°02'24" N 94°55'37" E,
Point N: 07°40'06" N 95°25'45" E, Point O: 07°46'06" N 95°31'12" E. Article 2
provides that the boundary of the seabed between India and Indonesia in the
Indian Ocean is the straight lines connecting points 4 and R, points R and S,
points S and T and points T and U. The co-ordinates of these points are specified
as: Point 4: 06°00'.0 N 94°10'.3 E, Point R: 05°25'20" N 93°41'12" E, Point S:
04°27'34" N 92°51'17" E, Point T: 04°18'31" N 92°43'31" E Point U: 04°01'40" N
92°23'55" E. Article 4 provides that The Government of the Republic of India
and the Government of the Republic of Indonesia recognize and acknowledge
the sovereign rights of the respective Governments in and over the seabed areas,
including the subsoil thereof, within the limits established by this Agreement.
Article 6 provides that any dispute between the two Governments relating to the
interpretation or implementation of this Agreement shall be settled peacefully by
consultation or negotiation.
806 Ibid. Article 1 of the agreement provides that the trijunction point between Sri
Lanka, India and Maldives in the sea beyond the Gulf of Mannar, which is
equidistant from the nearest points on the coasts of Sri Lanka, India and
Maldives respectively, shall be the point, which has been agreed to be called
228
Maldives of Mannar
Maldives Arabian sea maritime 8th June 1978807

Boundary
Thailand and Fix the “Common 2nd March 1979808
point T, defined by latitude and longitude as follows: Point T: 04° 47.04" N

(latitude) 77° 01.40" E (longitude). Article 3 provides that the actual location at
sea and on the sea-bed of the trijunction point shall be determined by a method to
be mutually agreed upon by the persons authorised for the purpose by the three
Governments, respectively.
807 Ibid. Article 1 of the agreement provides that the maritime boundary between
India and Maldives in the Arabian Sea shall be arcs of the Great Circles defined
by latitude and longitude. Article 4(1) provides that each Party shall have
sovereignty over all islands falling on its side of the aforesaid boundary, as well
as over the territorial waters and the airspace above them. Article 4(2) provides
that each Party shall have sovereign rights and exclusive jurisdiction over the
continental shelf and the exclusive economic zone as well as over their
resources, whether living or non- living, falling on its own side of the aforesaid
boundary. Article 4(3) provides that each Party shall respect rights of navigation
through its territorial sea and the exclusive economic zone in accordance with its
laws and regulations and the rules of international law. Article 5 provides that if
any single geological, petroleum or natural gas structure or field, or any single
geological structure or field of any mineral deposit, including sand or gravel,
extends across the boundary referred to in Article I and the part of such structure
or field which is situated on one side of the boundary is exploited, in whole or in
part, from the other side of the boundary, the two countries shall seek to reach
agreement as to the manner in which the structure or field shall be most
effectively exploited and the manner in which the proceeds deriving therefrom
shall be apportioned.
808 Ibid. Article 1(1) of the agreement provides that the trijunction point of Thailand,
India and Indonesia in the Andaman Sea shall be a point whose co-ordinates are
Latitude 07°47'00" North Longitude 95°31'48" East. Article 1(2) provides that the
boundary of the continental shelves of India and Indonesia shall be formed by a
straight line drawn from the trijunction point in the south-westerly direction to
point number 0 mentioned in Article 1 of the Agreement Between the
Government of the Republic of India and the Government of the Republic of
Indonesia on the Extension of the 1974 Continental Shelf Boundary Between the
two Countries in the Andaman Sea and the Indian Ocean, signed at New Delhi
on 14th of January 1977, the co- ordinates of which are Latitude 07°46'06" North
Longitude 95°31'12" East. Article 1(3) provides that the sea-bed boundary of
Thailand and India shall be formed by a straight line drawn from the trijunction
point in the north-easterly direction to point number 1 mentioned in Article 1 of
the Agreement between the Government of the Kingdom of Thailand and the
Government of the Republic of India on the Delimitation of the Sea-Bed
Boundary Between the Two Countries in the Andaman Sea, signed in New Delhi
229
Indonesia Trijunction Point” in

Andaman Sea between
Thailand, India, and
Indonesia, which is
equidistant from India
and Indonesia, but not
from Thailand; it is
approximately 31.5
miles farther from
Thailand.
Thailand Continental shelf in the 15th December 1978809
on the 22nd of June 1978, the co-ordinates of which are Latitude 07°48'00" North
Longitude 95°32'48"East. Article 1(4) provides that the sea-bed boundary of
Thailand and Indonesia shall be formed by a straight line drawn from the
trijunction point in the south-easterly direction to point number L mentioned in
Article 1 of the Agreement Between the Government of the Kingdom of
Thailand and the Government of the Republic of Indonesia Relating to the
Delimitation of the Sea-Bed Boundary Between the Two Countries in the
Andaman Sea, signed at Jakarta on the 11th of December, 1975, the co-ordinates
of which are Latitude 07°46'.1 North Longitude 95°33'.1 East. Article 2 provides
that the Government of the Kingdom of Thailand, the Government of the
Republic of India and the Government of Indonesia recognize and acknowledge
the sovereign rights of the respective Governments over the sea-bed, including
the subsoil thereof, within the limits established by this Agreement. Article 3
provides that if any single geological petroleum or natural gas structure or field,
or other mineral deposit of whatever character, extends across the boundary lines
referred to in Article I, the three Governments shall communicate to one another
all information in this regard and shall seek to reach agreement as to the manner
in which the structure, field or deposit will be most effectively exploited and the
benefits arising from such exploitation will be equitably shared. Article 4
provides that any dispute between the three Governments relating to the
consultation or negotiation.
809 Ibid. Article 1(1) of the agreement provides that the seabed boundary between
Thailand and India in the Andaman Sea comprises the straight lines connecting
Points 1 and 2, 2 and 3, 3 and 4, 4 and 5, 5 and 6 and 6 and 7. Articles 1(2)
provides that the co-ordinates of these points are specified as: Point 1 07°48'00"
N., 95°32'48" E. Point 2 07°57'30" N., 95° 41'48" E. Point 3 08°09'54" N.,
95°39'16" E. Point 4 08°13'47" N., 95°39'11" E. Point 5 08°45'11" N., 95°37'42" E.
Point 6 08°48'04" N., 95°37'40" E. Point 7 09°17' 18" N., 95°36'31" E. Article 3
provides that the Government of the Kingdom of Thailand and the Government
of the Republic of India recognise and acknowledge the sovereign rights of the
respective Governments over the seabed, including the subsoil thereof, within
the limits established by this Agreement. Article 4 provides that if any single
geological, petroleum or natural gas structure or field, or other mineral deposit of
whatever character, extends across the boundary referred to in Article 1, the two
230
Andaman Sea
Myanmar Maritime boundary of 14th September 1987810

the Andaman Sea in
the Coco Channel and
in the Bay of Bengal
Myanmar and Trijunction point in 24th May 1995811

Thailand Andaman Sea between
Myanmar, India, and
Thailand
The term maritime boundary has two connotations. It refers to the

seaward outer limits of the maritime zones of a coastal State, such as
the territorial waters, the contiguous zone, the exclusive economic zone
and the continental shelf. It also refers to the limits of maritime zones
Governments shall communicate to each other all information in this regard and
shall seek to reach agreement as to the manner in which the structure, field or
deposit will be most effectively exploited and the benefits arising from such
exploitation equitably shared. Article 5 provides that any dispute between the
two Governments relating to the interpretation or implementation of this
Agreement shall be settled peacefully by consultation or negotiation.
810 Ibid. Article 1 of the agreement provides that the maritime boundary between
Myanmar and India in the Andaman Sea and in the Coco Channel is the straight
lines connecting points 1 to 14, the geographical co-ordinates of which are
mentioned in Article 1. Article 2 provides that the Maritime Boundary between
Burma and India in the Bay of Bengal is the straight lines connecting points 14 to
16, the geographical co-ordinates of which are mentioned in Article 2. Article 5
provides that each Party has sovereignty over the existing islands and any islands
that may emerge, falling on its side of the maritime boundary. Article 6 provides
that each Party has sovereignty, sovereign rights and jurisdictions in its
respective maritime zones, falling on its side of the maritime boundary, in
accordance with the relevant provisions of the United Nations Convention on the
Law of the Sea, 1982. Article 7 provides that any dispute concerning the
consultation or negotiation between the two Parties.
811 Ibid. Article 1 of the agreement provides that the trijunction point between
Myanmar, India and Thailand in the Andaman Sea, which is equidistant from the
nearest points of Myanmar, India and Thailand respectively, shall be the point
which is to be called Point T and defined by latitude and longitude as follows:
Point T: Latitude 09°38'00" North, Longitude 95°35'25" East. Article 4 provides
that any dispute between the three Governments relating to the interpretation or
implementation of this Agreement shall be settled peacefully by consultation or
negotiation.
231
of States with adjacent or opposite coasts in order to avoid overlapping

of claims. India occupies a prominent position in the Indian Ocean. The
diverse coastal geomorphology and prevailing geographical contiguity
within the region, combined with the location of India’s distant
offshore island groups of Lakshadweep and Andaman & Nicobar, make
it compulsory for India to demarcate its maritime boundaries
completely. Moreover, settlement of maritime claims in the Indian
Ocean by India is also important for evolving a model for an integrated
coastal and ocean space utilization and for the preparation of action
plans to implement the same. The complex intertwining of questions
concerning the law of the sea and the modern history of coastal
countries in the Indian subcontinent in the light of their geographical
contiguity have added to the discord and divergence of South Asian
marine affairs.812 The fact that India has ratified the United Nations
Convention on Law of the Sea, 1982, only on 29th June 1995, is
indicative of India’s cautious approach towards dealing with her
maritime issues. Although some maritime statutes have been enacted
since the independence of India, many colonial maritime statutes, who
have outlived their use, are still in force. Moreover, India has not
updated its maritime statutes in the light of many new regional and
global developments.813
812 Prabhas Chandra, India’s Coast and Ocean Management 382 (Kanishka
Publishers, New Delhi, 2005).
813 Id., at 385.
232
CHAPTER – VI:
PIRACY AT SEA (ANTI PIRACY LAW
AND MEASURES):
“Sometimes we are lucky enough to know that our lives have been
changed, to discard the old, embrace the new, and run headlong
down an immutable course. It happened to me on that summer day
when my eyes were opened to the Sea”.
Jacques Yves Cousteau (Oceanographer) 814

Since the emergence of civilization, human beings have always had
to choose between leading an honest, hardworking existence, or leading
a life of crime, whether on land or at sea. Those who chose the latter
and went to sea, were branded as pirates. Pirates have menaced the high
seas since times immemorial, seeking harbours and ports to plunder and
pillage for treasure. In earlier times it was deemed that piracy is only a
sea term for robbery that was committed within the jurisdiction of the
admiralty. However, it continues to emerge in new forms in the modern
era. As the twenty first century unfolds, the world again confronts
piracy.815
The word “piracy” has been derived from the ancient Greek word
“peiraomai”, which means attempt, i.e. an attempt to rob for personal
gain. With the passage of time, this word morphed into “peirates”,
which means “brigand”, and from that to the Latin word “pirata”, from
which we got the modern English word “pirate”.816 The word is of
comparatively late date in Greek language and is not found before the
year 140 BC. Before then, the various cultural labels like “Nine Bows”
814 Available at: http://www.seasky.org/quotes/sea-quotes-oceans.html (Visited on

November 8, 2014).
Addressing this Enduring Problem” 36 TMLJ 67 (2011).
816 Henry A. Ormerod, Piracy in the Ancient World 59 (The John Hopkins University
and “Sea Peoples” were applied to such persons by their victims and
enemies.817 Those who engage in acts of piracy are called pirates.
Pirates are sea robbers who prey on other ships and rob them of their
goods and sometimes capture the ship and its crew and hold them for
ransom.818
6.2 DEFINITION OF PIRACY UNDER INTERNATIONAL LAW

Piracy is typically defined as “an act of robbery or criminal violence
at sea”. However, it also includes acts of violence committed on land,
in the air, on a shore or in other major bodies of water (only if the place
where it is committed is outside the jurisdiction of any state). It does
not normally include crimes committed against persons travelling on
the same vessel as the perpetrator (for example, one passenger robbing
others on the same vessel).819 Piracy under International Law is also
known as piracy jure gentium.820
In its original and strict meaning, piracy denotes every unauthorised
act of violence committed by a private vessel on the high seas against
another vessel with intent to plunder (animo furendi). A pirate has
always been considered an outlaw, a hostis humani generis (enemy of
whole mankind). 821 According to the United Nations Convention on
Law of the Sea, 1982, piracy consists of the following acts-
IV. Any illegal acts of violence or detention, or any act of depredation,
committed for private ends by the crew or the passengers of a private
ship or a private aircraft, and directed:
c) on the high seas, against another ship or aircraft, or against
d) against a ship, aircraft, persons or property in a place outside the
V. Any act of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts making it a pirate ship or aircraft;
817 Ibid.
818 Available at: http://wikipedia.org/Piracy (Visited on November 8, 2014).
819 Ibid.
820 Jure gentium means under the law of nations.
Volume I (Peace) 746 (Pearson Education Ltd., New Delhi, 2005).
234
VI. Any acts of inciting or intentionally facilitating an act described

above.822
Thus, accessory conduct is included within the scope of the
definition. Committing of actual robbery is not essential to constitute
piracy. In the case of Re Piracy Jure Gentium,823 the Privy Council held
that actual robbery was not an essential element of the crime of piracy,
and a frustrated attempt to commit a robbery on the high seas could be
considered as piracy.824
The expression “pirate ship or aircraft” is defined as “a ship or an
aircraft intended by the persons in dominant control to be used for the
purpose of committing the piratical acts specified in Article 101. The
same applies if the ship or aircraft has been used to commit any such
act, so long as it remains under the control of the persons guilty of that
act”.825 Thus, where the crew or passengers take control of the ship or
aircraft in which they are, with the intention of using it for piratical
acts, they have already committed an act of piracy. Acts inspired by
political motives and which would otherwise be treated as piratical, do
not constitute piracy under International Law because of the operative
words “committed for private ends” used in the definition of piracy in
Article 101.826
6.2.1 IMB’s Definition of Piracy

Under the UNCLOS, 1982 definition, if an attack occurs within the
territorial jurisdiction of a State, the event would be regarded as piracy
only if that nation’s penal code criminalises it as such. Recognising
such shortcomings in the UNCLOS, 1982 definition of piracy, The
822 Available at:

(Visited on August 10, 2015). Article 101 of the UNCLOS, 1982. This provision
is identical to Article 15 of the Convention on the High Seas, 1958.
823 [1934] AC 586. In this case, some Chinese citizens were arrested on the charge of
piracy. They had made an unsuccessful attempt to commit robbery at the high
seas. The Hong Kong court was confronted with the question as to whether
actual robbery was essential for piracy. The Court referred this question to the
Privy Council for its opinion.
824 Available at: http://www.uniset.ca/other/cs5/1934AC586.html (Visited on August
10, 2015).
825 Supra note 9. Article 103 of the UNCLOS, 1982. This provision is identical to
Article 17 of the Convention on the High Seas, 1958.
235
International Maritime Bureau (IMB) suggested a new definition for

piracy as “an act of boarding (or attempted boarding) with the intent to
commit theft or any other crime and with the intent or capability to use
force in furtherance of that act”. While this wider definition allows the
IMB to produce a more comprehensive picture about maritime crime, it
is not recognised by international law.827
6.2.2 Piracy By Public Ships

As a general rule, only private vessels can commit piracy. A warship
or other public ship or aircraft under the orders of a recognized
government or belligerent, so long as it remains under such orders,
cannot be held guilty of piracy.828 If it commits unjustified acts of
violence, redress must be sought from the flag State, which has to
punish the commander and pay the damages where required. The
principle that warships or other public vessels or aircraft cannot commit
acts of piracy does not mean that they cannot commit unlawful acts, but
it means that where such unlawful acts are committed by any of them,
the State of its nationality is answerable under International Law.829
However, the acts of piracy as defined in Article 101 of the UN
Convention on Law of the Sea, 1982, committed by a warship,
government ship or government aircraft whose crew has mutinied and
taken control of the ship or aircraft are assimilated to acts committed by
a private ship or aircraft. Thus, if the crew of a warship or other public
ship or aircraft of a State revolts and cruises the sea for committing any
of the acts specified in Article 101, it ceases to be a public ship or
aircraft, and acts of violence committed by it may indeed be piratical.830
A ship or aircraft may retain its nationality although it has become a
pirate ship or aircraft. The retention or loss of nationality is determined
by the law of the State from which such nationality was derived.831
827 P.G. Gayathri and P.G. Jayashankar, “Trial of Pirates and Armed Robbers:
Jurisdiction of States” in Maritime Security and Piracy (Global Issues,
Challenges and Solutions) 107 (Eastern Book Company, Lucknow, 2012).
829 Id., at 748.
830 Supra note 9. Article 102 of the UNCLOS, 1982. This provision is identical to
Article 16 of the Convention on the High Seas, 1958.
831 Ibid. Article 104 of the UNCLOS, 1982. This provision is identical to Article 18
of the Convention on the High Seas, 1958.
236
6.2.3 Piracy: Whether Terrorism or Traditional Crime

In the modern era, some jurists have compared piracy with terrorism
and have analyzed connections between pirates and various terrorist
groups, such as the Somalia based Al-Shabaab. Therefore, a question
arises that whether piracy should be treated like maritime terrorism or
should it be dealt with as a crime under international law?832 There are a
few similarities between piracy and maritime terrorism. For example,
the perpetrators of both tend to be non State actors. In addition to it,
pirates share tactics, techniques and procedures with terrorists, although
for a different objective. One such common tactic is seizure of other
vessels by force.833
However, in contrast to maritime terrorism, such as the 1985 attack
on the MS Achille Lauro,834 high seas piracy is committed to advance

833 Id., at 89.
834 MS Achille Lauro was a cruise ship based in Naples, Italy, built between 1939
and 1947. On October 7, 1985, four PLF (Palestine Liberation Front) militants
hijacked Achille Lauro off the coast of Egypt as she was sailing from Alexandria
to Ashdod, Israel. The hijackers had been surprised by a crew member and acted
prematurely. Holding the passengers and crew hostage, they directed the vessel
to sail to Tartus, Syria, and demanded the release of 50 Palestinians detained in
Israeli prisons. As many of the hostages were American tourists, US
President Ronald Reagan deployed the Navy's SEAL Team Six and Delta
Force to stand-by and prepare for a possible rescue attempt to free the vessel
from its hijackers. On October 8, after being refused permission by the Syrian
government to dock at Tartus, the hijackers murdered Leon Klinghoffer, a
retired, wheelchair bound Jewish American businessman, shooting him in the
forehead and chest. They then forced the ship's barber and a waiter to throw his
body and wheelchair overboard. Klinghoffer's wife, Marilyn, who did not
witness the shooting, was told by the hijackers that he had been moved to the
infirmary. She only learned the truth after the hijackers left the ship at port Said.
PLO (Palestine Liberation Organization) Foreign Secretary Farouq
Qaddumi later denied that the hijackers were responsible for the murder, and
suggested that Marilyn had killed her husband for insurance money. Over a
decade later, in April 1996, PLF leader Muhammad Zaidan accepted
responsibility, and in 1997, the PLO reached a financial settlement with the
Klinghoffer family. Achille Lauro headed back towards Port Said, and after two
days of negotiations, the hijackers agreed to abandon the liner in exchange for
safe conduct. They were flown towards Tunisia aboard an Egyptian commercial
airliner. The plane carrying the hijackers was intercepted by F-14 Tomcats and
the VF-103 Sluggers based on the aircraft carrier USS Saratoga and directed to
land at Naval Air Station Sigonella (a NATO base in Sicily) under the orders of
U.S. Secretary of Defense Caspar Weinberger. There, the hijackers were arrested
237
private, usually financial ends. Hence, piracy would not encompass

maritime terrorism within its definition, as terrorism is a politically
motivated act. Thus, the very definitions of piracy and terrorism lend
themselves to neither close association nor similar treatment under
international law. Moreover, from a practical perspective, piracy and
maritime terrorism might well run at cross purposes. In pursuit of
material gain, pirates rely upon the flourishing and robust maritime
trade, while terrorists are assumed to be seeking the destruction of the
global maritime trade network (at least in the context of the
contemporary jihadist network) as part of their economic war against
the west. This conflict leans against treating piracy and maritime
terrorism in the same manner, either legally or operationally. Thus,
piracy should continue to be treated as a criminal offence under
international law, unless and until a substantial nexus of piracy with
terrorism is established. However, there is nothing to prevent a
particular act in the future from being characterized as both, if a pirate
is attempting to raise money for his personal gain as well as for
terrorism.835
6.2.4 Place of Committing Piracy

In earlier times piracy could be committed on the high seas only.
However, the UN Convention on Law of the Sea, 1982, provides that
acts of piracy may be committed on the high seas, as well as in a place
by the Italian military police after a disagreement between American and Italian
authorities. The other passengers on the plane (including the hijackers'
leader, Muhammad Zaidan) were allowed to continue on to their destination. The
fate of those convicted of the hijacking is varied. Ahmad Marrouf al-
Assadi disappeared in 1991 while on parole. Bassam al-Asker was
granted parole in 1991. He was thought to have died on February 21, 2004, but
according to the Lebanese Daily Star, he had instead fled the country. He spent
14 years in Iraq, training Palestinian militiamen to fight the US Army alongside
Iraqi rebels, before travelling to the Nahr-al-Bared refugee camp in Lebanon.
Ibrahim Fatayer Abdelatif was sentenced to 30 years imprisonment. He served 20
years in prison and three more on parole and on July 7, 2008, he was expelled
from an illegal immigrant detention center in Rome. Youssef Majed-al- Molqi,
convicted of killing Leon Klinghoffer, was sentenced to 30 years imprisonment.
He left the Rebibbia prison in Rome on February 16, 1996, on a 12
day furlough and fled to Spain, where he was recaptured and extradited back to
Italy. On April 29, 2009, Italian officials released him from prison early, for good
behaviour.
238
which is outside the jurisdiction of any State.836 Piracy in territorial sea

or national waters has as little to do with international law as other
robberies within the territory of a State.837 Thus, while a pirate attack
that takes place within the territorial sea of a State, is a matter for that
State itself to deal with in accordance with its municipal law, it is both
logical and convenient to include in piracy jure gentium acts committed
outside the jurisdiction of any State, for example, on an island which is
terra nullius, or on the shores of any territory not subject to a territorial
jurisdiction.838 The Convention of 1982 further makes it clear that
piracy jure gentium can also be committed within the exclusive
economic zone of a country.839
6.2.5 Object of Piracy

Piracy may be promoted by hatred or revenge as well as for gain.
Generally, pirates aim at plundering the cargo and other resources of
the ship. However, the cargo need not be the only object of their acts of
violence. In recent times, pirates have also targeted the personal
belongings of the crew and the contents of the ship’s safe, which
potentially contains large amounts of cash needed for payroll and port
fee. In some cases, they capture the ship and its crew and hold them for
ransom. Sometimes, the pirates force the crew off the ship and then sail
it to a port to be repainted and given a new identity through false
papers. The only requirement is that the “illegal acts of violence,
detention, or depredation, committed for private ends” are to be
directed against another vessel or aircraft. Modern pirates have been
successful because almost 90% of the international trade and commerce
takes place via shipping. Pirates often operate in the waters of
developing or struggling countries with small Navies and large trade
routes. Pirates sometimes evade capture by sailing into waters
controlled by their pursuer’s enemy.840

838 Ibid.
839 Supra note 9. Article 58(2) of the UNCLOS, 1982, provides that Articles 88 to 115
of the Convention and other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible with this Part
(Part V of the Convention dealing with Exclusive Economic Zone).
840 Available at: http://wikipedia.org/Piracy (Visited on November 9, 2014).
239
6.3 PIRACY UNDER MUNICIPAL LAWS

Piracy jure gentium must be distinguished from some acts which
particular municipal laws may denominate as piracy. States may
confine themselves to punishing as piracy lesser acts of violence than
those which International Law defines as piracy. On the other hand,
they may punish their own subjects as pirates for a much wider range of
acts as compared to International Law.841 However, since a State cannot
enforce its municipal laws on the high seas against people other than its
own subjects, it cannot treat foreigners on the high seas as pirates,
unless they are pirates within the meaning of Article 101 of the UN
Convention on Law of the Sea, 1982. For example, dealing in slaves
was considered a piratical act under the laws of Great Britain in the
nineteenth century. When in 1858, before the abolition of slavery in the
United States of America,842 British warships fired upon American
vessels on the high seas suspected of carrying slaves, USA was
justified in protesting and complaining.843
In United States vs. Smith,844 Justice Story of the Supreme Court of
USA held that “whatever may be the diversity of definitions in other

842 Slavery was abolished in USA by the thirteenth amendment to the US
Constitution. The thirteenth amendment, abolishing slavery except as
punishment for a crime, was passed by the Senate on 8th April 1864, and by the
House of Representatives on 31st January 1865. On 1st February 1865, President
Abraham Lincoln approved the Joint Resolution of Congress submitting the
proposed amendment to the state legislatures. The amendment did not take effect
until it was ratified by three fourths of the states, which occurred on December 6,
1865, when Georgia ratified it. On that date, all remaining slaves became
officially free.
844 18 US 153 (1820). The prisoner Thomas Smith and others in the month of March
1819 were part of the crew of a private armed vessel named
the Creollo, commissioned by the government of Buenos Aires, a colony then at
war with Spain, and lying at the port of Margaritta. In the month of March 1819,
the said prisoner and others of the crew mutinied, confined their officer, left the
vessel, and at the said port of Margaritta, seized by violence a vessel named
the Irresistible, a private armed vessel lying at that port, commissioned by the
government of Artigas, who was also at war with Spain. The said prisoner and
others, having so possessed themselves of the said vessel,
the Irresistible, appointed their officers, proceeded to sea on a cruise without any
documents or commission whatever, and while on that cruise, in the month of
April 1819, on the high seas, committed the offense of piracy by the plunder and
robbery of the Spanish vessels.
240
respects, all writers concur in holding that robbery or forcible

depredations upon the high seas animo furandi is piracy”.845 In United
States vs. The Ambrose Light,846 Judge Brown of the Federal Court held
that “an armed ship at sea should be under the authority of some State.
If such a ship is not under the authority of any State, it would be treated
as a pirate ship, irrespective of the fact whether it has committed an act
of piracy or not”.847
Recently, in the USA, two Federal Courts in the Eastern District of
Virginia split over the definition of piracy. In United States vs. Said,848
in August 2010, District Judge Raymond Jackson dismissed a case
against six Somali pirates who had attacked the naval warship USS
Ashland. In so doing, he applied the definition of piracy as “robbery at
845 Available at: https://supreme.justia.com/cases/federal/us/18/153/case.html

(Visited on August 10, 2015). Section 5 of The Act to Protect the Commerce of
the United States and Punish the Crime of Piracy, 1819, provided that if any
person or persons whatsoever, shall, on the high seas, commit the crime of piracy
as defined by the law of nations, and such offender or offenders shall afterwards
be brought into or found in the United States, every such offender or offenders
shall, upon conviction be punished with death.
846 25 Fed. Rep. 408 (1885). In 1885, a rebellion was underway in Columbia, with
rebels holding the ports of Panama, Sabanilla, Santa Maria and Baranquilla. The
US Navy gunboat USS Alliance was searching the Caribbean Sea for an
insurgent named Preston, who had ordered an attack on the city of colon, causing
loss of person and property to the Americans. On 24th April 1885, twenty miles
west of Cartagena, the USS Alliance came upon the brigantine named Ambrose
Light, flying a strange flag featuring a red cross on a white field. After the
Alliance fired shots across Ambrose Light’s bows, the brigantine raised a
Columbian flag. While Preston was not aboard, the American crew discovered a
cannon, ammunition and sixty armed soldiers below deck after boarding the
vessel. The Ambrose Light had papers purporting to commission her as a
Columbian warship which commander Clarke of the Alliance deemed irregular
and reported her under seizure. Admiral Jouett, Commander of the North
Atlantic Squadron, directed the vessel to be taken to New York for adjudication
as prize. At New York, it was found that Commander Clarke was correct in
questioning Ambrose Light’s papers, as it came to light that the ship belonged to
Mr. Colente, a military leader of the insurgents at Baranquilla. The ship was
assisting the rebels’ blockade and was about to seige the port of Cartagena, held
by the established government of the United States of Columbia. Her Captain
was instructed to fight any Columbian vessel not showing the white flag with the
red cross.
Allahabad, 2011).
848 757 F. Supp. 2d 554, 556 (ED Va. 2010).
241
sea”, which was crafted by the US Supreme Court in the year 1820 in
the case of United States vs. Smith. Ultimately, Judge Jackson found
that the Somali defendants had neither successfully boarded nor robbed
the USS Ashland.849
However, in United States vs. Hasan,850 in October 2010, District
Judge Mark Davis determined that neither the boarding nor the robbing
requirements were relevant. He further observed that the Court had
applied the wrong definition of piracy in the case of United States vs.
Said. In finding five Somali nationals guilty of committing piracy by
attacking the naval warship USS Nicholas, Judge Davis applied the
modern definition of piracy mentioned in Article 101 of the UN
Convention on the Law of the Sea, 1982. His rationale underlying the
preference for the international definition was that the definition of
piracy in the United States Code could only be determined by referring
to the modern law of nations. Consequently, the Court had to use the
international consensus definition at the time of the alleged offence,
and not the international definition available in 1820, which was
robbery at sea.851
849 Michael J. Kelly, “The Pre-History of Piracy as a Crime & Its Definitional
Odyssey” 46 CWRJIL 30 (2013).
850 747 F. Supp. 2d 599, 640-41 (ED Va. 2010).
851 Supra note 36, at 31. Chapter 81 (Sections 1651 to 1661) of Part I (dealing with
crimes) of Title 18 (dealing with crimes and criminal procedure) of the United
States Code deals with Piracy and Privateering. Section 1651 provides that
whoever, on the high seas, commits the crime of piracy as defined by the law of
nations, and is afterwards brought into or found in the United States, shall be
imprisoned for life. Section 1652 provides that whoever, being a citizen of the
United States, commits any murder or robbery, or any act of hostility against the
United States, or against any citizen thereof, on the high seas, under colour of
any commission from any foreign prince, or state, or on pretence of authority
from any person, is a pirate, and shall be imprisoned for life. Section 1653
provides that whoever, being a citizen or subject of any foreign state, is found
and taken on the sea making war upon the United States, or cruising against the
vessels and property thereof, or of the citizens of the same, contrary to the
provisions of any treaty existing between the United States and the state of which
the offender is a citizen or subject, when by such treaty such acts are declared to
be piracy, is a pirate, and shall be imprisoned for life. Section 1654 provides that
whoever, being a citizen of the United States, without the limits thereof, fits out
and arms, or attempts to fit out and arm or is concerned in furnishing, fitting out,
or arming any private vessel of war or privateer, with intent that such vessel shall
be employed to cruise or commit hostilities upon the citizens of the United States
or their property; or whoever takes the command of or enters on board of any
242
such vessel with such intent; or whoever purchases any interest in any such
vessel with a view to share in the profits thereof shall be fined under this title or
imprisoned not more than ten years, or both. Section 1655 provides that whoever,
being a seaman, lays violent hands upon his commander, to hinder and prevent
his fighting in defence of his vessel or the goods entrusted to him, is a pirate, and
shall be imprisoned for life. Section 1656 provides that whoever, being a captain
or other officer or mariner of a vessel upon the high seas or on any other waters
within the admiralty and maritime jurisdiction of the United States, piratically or
feloniously runs away with such vessel, or with any goods or merchandise
thereof, to the value of $50 or over; or whoever yields up such vessel voluntarily
to any pirate shall be fined under this title or imprisoned for not more than ten
years, or both. Section 1657 provides that whoever attempts to corrupt any
commander, master, officer, or mariner to yield up or to run away with any
vessel, or any goods, wares, or merchandise, or to turn pirate or to go over to or
confederate with pirates, or in any wise to trade with any pirate, knowing him to
be such; or whoever furnishes such pirate with any ammunition, stores, or
provisions of any kind; or whoever fits out any vessel knowingly and, with a
design to trade with, supply, or correspond with any pirate or robber upon the
seas; or whoever consults, combines, confederates, or corresponds with any
pirate or robber upon the seas, knowing him to be guilty of any piracy or
robbery; or whoever, being a seaman, confines the master of any vessel shall be
fined under this title or imprisoned for not more than three years, or both.
Section 1658(a) provides that whoever plunders, steals, or destroys any money,
goods, merchandise, or other effects from or belonging to any vessel in distress,
or wrecked, lost, stranded, or cast away, upon the sea, or upon any reef, shoal,
bank, or rocks of the sea, or in any other place within the admiralty and maritime
jurisdiction of the United States, shall be fined under this title or imprisoned for
not more than ten years, or both. Section 1658(b) provides that whoever wilfully
obstructs the escape of any person endeavouring to save his life from such
vessel, or the wreck thereof; or whoever holds out or shows any false light, or
extinguishes any true light, with intent to bring any vessel sailing upon the sea
into danger or distress or shipwreck shall be imprisoned for not less than ten
years and may be imprisoned for life. Section 1659 provides that whoever, upon
the high seas or other waters within the admiralty and maritime jurisdiction of
the United States, by surprise or open force, maliciously attacks or sets upon any
vessel belonging to another, with an intent unlawfully to plunder the same, or to
despoil any owner thereof of any moneys, goods, or merchandise laden on board
thereof, shall be fined under this title or imprisoned for not more than ten years,
or both. Section 1660 provides that whoever, without lawful authority, receives
or takes into custody any vessel, goods, or other property, feloniously taken by
any robber or pirate against the laws of the United States, knowing the same to
have been feloniously taken, shall be imprisoned for not more than ten years.
Section 1661 provides that whoever, being engaged in any piratical cruise or
enterprise, or being of the crew of any piratical vessel, lands from such vessel
and commits robbery on shore, is a pirate, and shall be imprisoned for life.
243
In United States vs. Dire,852 resolving the split of the District Courts,
the US Fourth Circuit Court of Appeals overturned Judge Jackson’s
decision in the case of United States vs. Said. The Circuit Court opted
for the more expansive definition of piracy relied upon by Judge Davis
in the case of United States vs. Hasan.853
In 2013, the US Ninth Circuit Court of Appeals followed the Fourth
Circuit’s lead. In Cetacean Research vs. Sea Shepherd,854 the Ninth
Circuit Court overturned the decision of the District Court and held that
environmental organization Sea Shepherd’s vigorous disruptive efforts
to deny Japanese whaling ships of their prizes during seasonal hunts
were piratical. The existence of a motive to steal, which was
determinative in the District Court’s dismissal of the case, was deemed
irrelevant.855
In United States vs. Ali,856 in 2013, the DC Circuit Court of Appeals
grafted aiding and abetting onto the definition of piracy.857
In September 2013, a criminal case was opened by the Investigative
Committee of Russia following an attempt to board a Russian oil rig by
a group of thirty Greenpeace activists858 against oil exploration near
852 680 F. 3d 446, 467, 469 (4th Cir. 2012).

853 Available at: http://law.justia.com/cases/federal/appellate-courts/ca4/11-4310/11-
4310-2012-05-23.html (Visited on August 10, 2015).
854 708 F. 3d 1099, 1102 (9th Cir. 2013).
856 718 F. 3d 929, 938, 940 (DC Cir. 2013). In this case, a Somali national, Ali
Mohamed Ali, was convicted of aiding and abetting piracy when he negotiated
the release of a Danish merchant ship that had been captured by Somali pirates,
in exchange for a ransom of $1.7 million, out of which he received a brokerage of
$16,500 and a separate payment of $75,000 which he demanded during the
negotiations for his translation and negotiation services, and which the ship
owners transferred to his bank account. Ali was also nominally the Education
Minister of Somalia. As such, he accepted an invitation to attend an education
conference in the U.S.A., where law enforcement officers were waiting to arrest
him the moment he set foot on the American soil. He was charged with
conspiracy to commit piracy and aiding and abetting piracy in violation of the
United States Code. Judge Brown successfully found a home for the charge of
aiding and abetting piracy, going by the definition of piracy given in Article 101
of the UN Convention on Law of the Sea, 1982, but could not do so for the
conspiracy charge, which he observed that the lower court correctly dropped.
857 Supra note 40.
858 Greenpeace is a non-governmental environmental organization with offices in
over forty countries and with an international coordinating body in Amsterdam,
244
the Prirazlomnaya oil rig in the Barents Sea.859 This rig is operated by
the Netherlands. Greenpeace states its goal is to ensure the ability of the Earth to
nurture life in all its diversity" and focuses its campaigning on world wide issues
such as climate change, deforestation, overfishing, commercial whaling, genetic
engineering, and anti-nuclear issues. It uses direct action, lobbying,
and research to achieve its goals.
859 Available at:
http://en.wikipedia.org/wiki/Greenpeace_Arctic_Sunrise_ship_case#Dropping_o
f_ch arges_under_amnesty_law (Visited on November 10, 2014). On 11th
August 2013, the Greenpeace ship Arctic Sunrise left the Norwegian port
of Kirkenes to begin a month long expedition in the Arctic to protest against oil
exploration and digging. The Arctic Sunrise sailed into the Barents Sea and was
then refused permission three times by the Russian authorities to enter
the Northern Sea Route. On 23rd August, Greenpeace ignored the Russian ban to
enter the Kara Sea. On 26th August, the Arctic Sunrise left the Northern Sea
Route after the Russian coastguard boarded the boat for a mandatory inspection
and warned them that the action was illegal and that force would be used to
remove them if necessary. The vessel returned to Kirkenes, but left again on 14th
September, and turned off its radio signals. On 18 September 2013,
four inflatable boats were launched from the Arctic Sunrise from its position in
the Pechora Sea. The boats carried Greenpeace activists and crew members
towards Gazprom's Prirazlomnaya drilling platform. At the time of the action,
the Arctic Sunrise tweeted "We're going to try and stop the drilling.", although
subsequently Greenpeace have stated that their aim was to hang banners on the
oil rig to call for an end to Arctic drilling. Two activists managed to attach
themselves to the platform and attempted to climb, despite being blasted with
water, while another activist tried unsuccessfully to become attached to the
platform. The Russian coastguard fired warning shots from AK-74 rifles and four
warning shots from a cannon on board the Ladoga coastal patrol vessel. The two
activists were removed from the platform and held on board the coastguard
vessel, although it was unclear whether or not they had been placed under arrest.
On 19th September, the day after the Prirazlomnaya protest, the Russian
authorities forcibly took control of the Arctic Sunrise, which was boarded from a
helicopter by fifteen Federal Security Service officers armed with guns and
knives. At the time of the boarding, the Arctic Sunrise was in Russia's Exclusive
Economic Zone but not within the safety zone around the oil rig, and permission
was not sought to board it from the Arctic Sunrise's flag state, the
Netherlands. The captain was separated from the crew, while other crew
members and activists were held in the mess room. The Arctic Sunrise was
towed to the port of Murmansk. All of the 30 people on board were taken to a
detention facility there for questioning. In early October, the Leninsky District
Court in Murmansk issued a warrant to arrest all 30 people. 22 were put in
custody for two months pending an investigation and the other eight were
detained for three days pending a new hearing. As flag state for the Arctic
Sunrise, the Netherlands asked for immediate release of the ship and shipmates
to Dutch authorities. The Dutch government argues that since the ship was
245
the Russian state energy giant Gazprom. The Greenpeace activists

belonged to eighteen different nationalities. They were under
investigation for piracy, which in Russia carries a maximum jail
sentence of fifteen years. On 23rd October 2013, the charge of piracy
was dropped and replaced by a charge for aggravated hooliganism with
a maximum sentence of seven years. After they were transferred to
Saint Petersburg on 12th November
2013, the Kalininsky and Primorsky district courts released most of the
people on bail, and the Murmansk Regional Court rejected an appeal
against the arrests on 21st November 2013.860
In The Arctic Sunrise Case (Kingdom of the Netherlands vs. Russian
Federation) the International Tribunal for the Law of the Sea ruled on
22nd November 2013 that the campaigners and the ship should be
immediately released, and should be allowed to leave the country,
against a bail of 3.5 Million Euros.861 On 24th December 2013, it was
announced that the first of the detainees, Anthony Perrett, had been
freed under the amnesty law passed by the Russian parliament, and that
more would be freed and the charges against them dropped. All other
detainees were also released on 29th December 2013.862
Piracy jure gentium should also be distinguished from acts which
constitute piracy under bilateral treaties or under a joint declaration of
policy by states. The strict meaning of piracy jure gentium cannot be
extended by such treaties or by joint declarations as they are designed
outside Russian territorial waters and outside the (500 meters) safety zone around
the oil rig, it was in open sea, and hence outside Russian sovereign rights and
jurisdiction. According to nautical law any actions against a ship in open sea can
only be conducted after agreement with the flag state. Hence the Dutch took the
position that the capture of the Arctic Sunrise by Russia was not legal. After
Russia did not release the ship, the Netherlands filed a formal case to
the International Tribunal for the Law of the Sea on 21st October to order Russia
to release the Greenpeace ship and the activists who were on board. However,
Russian government announced that it will not participate in the hearings,
pointing out that back in 1997, when it ratified the United Nations Convention on
the Law of the Sea, it refused to acknowledge the settlement procedures, which
result in mandatory decisions in disputes over sovereign rights and jurisdictions.
860 Ibid.
861 Available at: https://www.itlos.org/index.php?id=264&L=0%20and%207%3D2
(Visited on November 10, 2014).
862 Available at: http://www.greenpeace.org/international/en/news/features/From-
peaceful-action-to-dramatic-seizure-a-timeline-of-events-since-the-Arctic-
Sunrise- took-action September-18-CET/ (Visited on November 10, 2014).
246
to govern the relations of only those states who subscribe to them.

Thus, for a State to exercise jurisdiction on the high seas in relation to
pirates, the act complained of must fall within the ambit of piracy jure
gentium, as a state cannot enforce its municipal laws on the high seas.863
6.4 INCIDENCE AND MAGNITUDE OF PIRACY

Piracy has been with us since men first set sail. Judge Jose Luis
Jesus of the International Tribunal for the Law of the Sea has aptly
remarked that “the very first time something valuable was known to be
leaving a beach on a raft, the first pirate was around to steal it”. As
maritime commerce grew, so did incidents of piracy.864
The IMB piracy report for the year 2014, released on 16th January
2015, shows a sharp decline in pirate attacks as compared to previous
years.865 Globally, 21 vessels were hijacked, 183 boarded, 13 fired upon
and a further 28 reported attempted attacks.866 The single biggest reason
for the drop in worldwide piracy and armed robbery is the decrease in
the overall attacks carried out by Somali pirates.867 The 11 reported
attacks attributed to Somali pirates include nine attempted attacks and
two firing incidents.868 These figures are the lowest since the 10
incidents of piracy attributed to Somali pirates in 2006. The combined
efforts of the Navies in the region, along with the hardening of vessels,
employment of privately contracted armed security teams and the
establishment of the Federal Government of Somalia in 2012 have all
864 Jose Luis Jesus, “Protection of Foreign Ships Against Piracy and Terrorism at
Sea: Legal Aspects” IJMCL 363 (2003).
865 ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships:
Report For The Period of 1st January 2014 to 31st December 2014, at 5 (2015).
The incidents of pirate attacks declined from 410 in 2009, 445 in 2010, 439 in
2011, 297 in 2012, 264 in 2013, to 245 in 2014.
866 Id., at 8.
867 Ibid. Somalia, considered to be the hub of piracy and a haven for pirates, reported
only 3 pirate attacks in 2014 as compared to 80 in 2009, 139 in 2010, 160 in 2011,
49 in 2012 and 7 in 2013.
868 Ibid. Out of these 11 pirate attacks, 3 took place in Somali waters, 4 in the Gulf of
Aden and 4 in the Red Sea. Pirate attacks which take place in Oman, Gulf of
Aden, Red Sea, Arabian Sea and the Indian Ocean are also attributed to Somali
pirates.
247
contributed to this drop.869 It remains imperative that these combined

efforts must continue. Any complacency at this stage could rekindle the
pirate activity in this region.870
Effective counter piracy operations may have resulted in diminished
pirate activity in East Africa, but this diminished activity has coincided
with a rise in pirate attacks in West Africa.871 Outside of Africa,
Indonesia has witnessed a sharp increase in the number of pirate attacks
over the past three years.872 The Piracy Reporting Centre of the IMB
has been working closely with the Indonesian Marine Police, who have
increased maritime patrols and designated safe anchorage areas for
vessels to use in some higher risk ports.873 Pirate attacks off the Indian
coast have also been on the rise since 2010.874 The pirate attacks off the
coast of Bangladesh in 2014 have nearly doubled since 2013.875 The
IMB has warned mariners to be extra cautious and to take necessary
precautionary measures when travelling through Somalia, Nigeria, Gulf
of Aden, Red Sea, Indonesia, Benin, Togo, Malacca Straits, Singapore
Straits, South China Sea and Bangladesh.876 It is important to mention
here that about 50% of the pirate attacks are not reported due to the ship
owner’s fears that doing so will increase the insurance premium and
869 The Federal Government of Somalia was established on 20th August 2012,
following the end of the interim mandate of the Transitional Federal
Government. It officially comprises the executive branch of government, with
the parliament serving as the legislative branch. It is headed by the President of
Somalia, to whom the Cabinet reports through the Prime Minister. On 10th
September 2012, Parliament elected Hassan Sheikh Mohamed as the new
President of Somalia. President Mohamed later appointed Abdi Farah Shirdon as
the new Prime Minister on 6th October 2012, who was succeeded in office
by Abdiweli Sheikh Ahmed on 21st December 2013.
871 Supra note 52, at 29. West Africa region accounted for 41 of the 245 incidents of
2014. Out of these, Nigeria reported 18 pirate attacks in 2014, as compared to 29
in 2009, 19 in 2010, 10 in 2011, 27 in 2012 and 31 in 2013.
872 Supra note 52, at 6. Indonesia accounted for 100 attacks in 2014, as compared to
15 in 2009, 40 in 2010, 46 in 2011, 81 in 2012 and 106 in 2013.
874 Supra note 52. India reported 13 pirate attacks in 2014, as compared to 5 in 2010,
6 in 2011, 8 in 2012 and 14 in 2013.
875 Supra note 52. Bangladesh reported 21 attacks in 2014, as compared to 10 in 2011,
11 in 2012 and 12 in 2013.
876 Supra note 52, at 20 and 21.
248
result in costly post incident investigations.877 Over the past five years
many cases of piracy have come to light where the pirates have held
hostages and demanded huge ransom money for their release. In some
cases they have been successful, while in some other cases their
nefarious designs have been thwarted by various Navies.878
877 A. Raghunadha Reddy, “Maritime Piracy: Legal Issues and Challenges” in Bimal
N. Patel and Hitesh Thakkar (eds.), Maritime Security and Piracy (Global Issues,
878 Available at:
http://en.wikipedia.org/wiki/List_of_ships_attacked_by_Somali_pirates (Visited
on December 9, 2014). Some recent incidents of piracy are mentioned hereunder:
I. On 1st April 2010, pirates attacked “USS Nicholas”, a missile frigate of the US
Navy in the international waters towards the west of Seychelles. The pirates
opened fire on the warship, presumably mistaking it for a merchant ship in the
dark. The warship returned fire and the US Navy arrested 5 pirates.
II. In May 2010, Russian Special Forces recaptured a Russian oil tanker that had been
captured by 11 pirates. One pirate died in the assault, and a week later, Russian
military officials reported that the remaining 10 pirates were freed due to
weaknesses in International Law, but died before reaching the Somali coast.
III. On 6th May 2010, a Liberian ship was attacked by Somali pirates in two
speedboats, 500 nautical miles off the coast of Somalia. The crew locked
themselves in the ship’s RADAR room and was rescued by the soldiers of the
Russian Naval Infantry who landed on the hijacked vessel, killed one pirate and
detained eleven.
IV. On 15th January 2011, thirteen Somali pirates seized “Samho Jewelry”, a Maltese
flagged chemical carrier, 650 kms south east of Muscat. The Republic of Korea
Navy shadowed the ship for several days. On 21st January 2011, twenty five
Navy Seals attacked the ship. Eight pirates were killed and five were captured in
the operation. The crew of 18 members was freed with the Captain suffering a
gunshot wound to the stomach.
V. On 28th January 2011, an Indian Coast Guard aircraft while responding to a
distress call, located two skiffs attempting a pirate attack near Lakshadweep
islands. Seeing the aircraft, the skiffs immediately aborted their attempt and
dashed towards the mother vessel, “M.V. Prantalay 14”, a hijacked Thai trawler,
which hurriedly received the two skiffs on board and moved westward. The
Indian Navy deployed the “I.N.S. Cankarso” which chased and engaged the
mother ship 100 nautical miles north of the Minicoy islands. Ten pirates were
killed in the attack and fifteen were arrested. Twenty Thai and Burmese
fishermen being held aboard the ship as hostages were rescued.
VI. In February 2011, the Indian Navy captured another hijacked Thai trawler, “M.V.
Prantalay 11” and captured 28 pirates aboard in an operation undertaken by the
“I.N.S. Tir”.
VII. In March 2011, the Indian Navy intercepted a pirate mother vessel 600 nautical
miles west of the Indian coast in the Arabian Sea, arrested 61 pirates and rescued
249
6.4.1 Disappearance of MH 370 Passenger Aircraft

Malaysia Airlines Flight 370 (MH370/MAS370) disappeared on 8th
March 2014, while flying from Kuala Lumpur International
Airport, Malaysia, to Beijing International Airport, China.879 Initially,
the American investigators believed that the disappearance of Malaysia
Airlines flight MH370 may have been “an act of piracy” and the
possibility that its 227 passengers and 12 crew members are being held
13 hostages. The mother vessel was being used by the pirates to launch attacks
around the Indian Ocean.
VIII. On 5th March 2012, US Navy destroyer ship “U.S.S. Kidd”, detected a
suspected pirate skiff alongside the Iranian fishing boat “Al Molai”. The master
of the ship sent a distress call at about the same time reporting that pirates were
holding him captive. A search and seizure team of the U.S. Navy boarded the
ship and detained 15 pirates who had been holding a 13 member Iranian crew as
hostage for several weeks. Members of the crew reported that the Iranian vessel
had been hijacked and used as a mother ship for pirate operations throughout the
Persian Gulf.
IX. On 5th June 2013, twelve armed Somali pirates took control of an Indian cargo
vessel in the Gulf of Aden. The crew of 14 Indian sailors was held hostage. They
were rescued next day in a joint E.U. - N.A.T.O. (European Union – North
Atlantic Treaty Organization) anti piracy operation. As the two warships closed
in to attack, the pirates, under intense military pressure, abandoned the Indian
vessel and fled away in the dark.
X. On 18th January 2014, Somali Pirates seized a merchant ship in the Red Sea and
took it towards Somali waters. The vessel, identified as the “M.V. Marzooqah”,
sent a distress signal from the Red Sea and was then turned towards the Gulf of
Aden.
XI. On 22nd April 2014, a tanker was boarded and hijacked by around ten heavily
armed pirates in the Malacca Straits, who then robbed and transferred part of the
fuel cargo into smaller unknown tankers. Crew and ship's properties were stolen
and ship's communication equipment damaged. The pirates kidnapped three crew
members and escaped. The vessel and remaining crew safely arrived at a port.
XII. On 23rd September 2014, Somali pirates released Michael Scott Moore, a citizen
of Germany and USA, after holding him hostage for 977 days. He was seized by
pirates in January 2012 as he tried to leave Somalia after a research trip. The
amount of ransom paid to secure his release was not disclosed.
879 Available at: http://en.wikipedia.org/wiki/Malaysia_Airlines_Flight_370 (Visited
on December 9, 2014). Air traffic control received the aircraft’s last message at
01:20 MYT when it was over the South China Sea, less than an hour after
takeoff. It was last plotted by the military radar at 02:15 MYT over the Andaman
Sea. At 07:24 MYT, Malaysia Airlines (MAS) reported the flight missing. The
aircraft, a Boeing 777-200ER, was carrying 12 Malaysian crew members and 227
passengers from 15 nations.
250
hostage at an unknown location was not ruled out.880 Whoever may

have turned off MH370’s location technology, knew very well how to
make an aircraft disappear from most tracking systems. American
officials advanced the theory that this could be evidence of an “act of
piracy”. They opined that when combined with the idea that the Boeing
777 could have descended to an altitude of 5,000 feet and undertaken
“terrain masking” manoeuvres which are normally associated with
agile military jets, the idea is born that MH370 might be sitting on an
unknown location with its passengers and crew held hostage.881
Byron Bailey, a former Boeing 777 pilot had claimed that the
missing Malaysia Airlines flight MH370 could have only veered off
course due to sabotage. The flight profile is programmed into the
flight’s computers before the engine is started, and with the autopilot
engaged immediately after take-off, the aircraft would fly itself to its
destination unless there was human input to change the flight profile.
He also opined that the air traffic control can lose RADAR contact with
a flight only if somebody interferes with the system. 882
On 22nd April 2015, Andre Milne, an aviation technology expert,
claimed to have found the remains of MH370 flight in the Bay of
Bengal. He said that this area has not been searched and that he needs
£1.3 million to search it.883 However, this claim did not turn out to be
true. On 5th August 2015, Malaysia confirmed that a piece of aircraft
wing washed up on the Reunion Island (a French island in the Indian
Ocean) in the last week of July was from MH370 flight. In a televised
address, Malaysian Prime Minister Najib Razak said that “today, 515
days since the plane disappeared, it is with a heavy heart that I must tell
you that an international team of experts has conclusively confirmed
880 Available at:

http://www.telegraph.co.uk/news/worldnews/asia/malaysia/10699611/Missing-
Malaysia-plane-MH370-may-have-fallen-victim-to-pirates.html (Visited on
December 9, 2014).
881 Available at: http://www.independent.co.uk/news/world/asia/missing-malaysia-
airlines-flight-mh370-suicide-piracy-terrorism--the-theories-so-far-9198181.html
882 Available at: http://www.ibtimes.co.uk/malaysia-airlines-mh370-former-boeing-
777- pilot-byron-bailey-supports-sabotage-theory-1477710 (Visited on December
9, 2014).
883 Available at: http://www.mirror.co.uk/news/world-news/mh370-found-wreckage-
located- ocean-5570314 (Visited on May 25, 2015).
251
that the aircraft debris found on Reunion Island is indeed from

MH370”.884 Experts in France also confirmed that the debris found on
the Reunion Island is the first physical evidence that MH370 flight met
a disastrous end in the Indian Ocean. However, on 12th August 2015, an
MH370 families organization said that it would not accept the
Malaysian government’s declaration on MH370 flight unless and until
more conclusive analysis is made.885
6.4.2 Pirate Strategy

A hunting party of pirates is usually a group of five to ten Somalis
who load their skiffs on a mother vessel and sail out of Somalia to hunt
for a target. At times they have advance information of a particular
vessel’s voyage. There are also random hunts when they just sail out
hoping to catch anything that floats. If they are extremely fortunate,
they come back with a big cargo vessel; if they are a little less
fortunate, they come back with a ship as the same size as their mother
vessel, which is then used as another mother vessel; if they are just
fortunate they come back with nothing; and if they are not fortunate,
they simply don’t come back. It is not that a hunting party is always
successful.886 While pirate attacks can be expected at any time, most
occur during the day, often in the early hours. They may involve two or
more skiffs that can reach speeds of up to 25 knots per hour. With the
help of motherships, which include captured fishing and merchant
vessels, the operating range of Somali pirates has increased far into the
Indian Ocean. Rocket propelled grenades, AK 47 assault rifles and
small arms are used by them to intimidate the Captain of the targeted
vessel to slow down and allow boarding. Warning shots are also fired
sometimes. Pirates bring light ladders along with them to climb aboard.
They then take operational control of the vessel. They are interested in
money and the ransom amount and generally do not harm their
884 Reuters, “Reunion debris is from missing MH370: Malaysia” The Tribune,
August 6, 2015.
885 Available at: http://www.ndtv.com/world-news/mh370-families-reject-malaysias-
conclusion-on-plane-debris-1206400 (Visited on August 12, 2015).
886 Pralav Dhyani, “Sea Pirates: A Case Study of Somali Piracy” in Bimal N. Patel
and Hitesh Thakkar (eds.), Maritime Security and Piracy (Global Issues,
252
prisoners. Pirates often throw their equipment into the sea before being
arrested, as this lowers the likelihood of a successful prosecution.887
6.4.3 Cost of Maritime Piracy

A new World Bank report published in April 2013 has found that the
Somali pirates roaming around the waters off the Horn of Africa push
global trade costs up by billions of dollars per year and severely affect
the economic activities of the neighbouring countries. Although
hijackings in the region have dropped significantly since last year,
piracy could still cost the global economy an estimated $18 billion
annually. The increased costs come as shippers are forced to change
trading routes, sending fuel bills soaring, as well as pay higher
insurance premiums and security bills for armed guards on board. But
apart from making international trade more expensive, the threat of
piracy in the world’s most important trade gateways is also an
economic blow for neighbouring East African countries, particularly in
the sectors of tourism and fishing, said the report. Since 2006, tourism
spending in East African coastal countries has risen 25% more slowly
than other sub-Saharan African nations, mainly because of fewer
arrivals from high income citizens of OECD (Organisation for
Economic Co-operation and Development) countries. Piracy in the
region is thought to have tarnished its image as a stable holiday
destination, with visits to impacted East African coastal nations down
by nearly 6.5% relative to visits to other countries.888 According to the
World Bank, exports of fish products from piracy-hit countries have
also suffered, declining by 23.8% since 2006. The economy of war torn
Somalia, which in September 2012 moved closer to stability after
electing its first President on home soil in over two decades, is also
severely hit as piracy related trade costs increase by up to $6 million
annually, without considering that potential sea based economic
activities are constrained by piracy.889 A report published by advocacy
group “Oceans Beyond Piracy” said that maritime piracy cost the
887 Available at: http://en.wikipedia.org/wiki/Piracy_in_Somalia#Methodology

888 Available at: http://edition.cnn.com/2013/04/12/business/piracy-economy-world-
bank/ (Visited on November 15, 2014).
889 Ibid.
253
global economy between $5.7 and $6.1 billion in 2012, much lower than
the World Bank figures.890
6.5 CAUSES OF PIRACY IN SOMALIA

Somalia lies on the eastern most part of Africa, also known as the
Horn of Africa. It has an area of 6,37,657 sq kms and a population of
1,04,28,043 persons (2014 estimate). It has a coastline of 3025 kms,
which is the longest in mainland Africa and the Middle East.891 The
problem of piracy off the coast of Somalia has collided with three
major interests, i.e., international commercial interests, security
concerns and right of impoverished Somalis to live their lives in peace
while maintaining their livelihood. Piracy in Somalia has many
tentacles created from its colonial history, failed missions of UN and
USA, armed conflicts between major clans and political groups,
repeated natural disasters, toxic waste dumping and illegal fishing off
the coast of Somalia, extreme poverty and possible claims of terrorist
links in its national politics.892 The various causes of piracy are
discussed in detail hereunder:
6.5.1 Colonial Effect

Somalia’s status as a failed State is a leading cause of the economic
and social crisis in Somalia that made the Somali people resort to
piracy. The colonial history of Somalia has played a major role in its
becoming a failed State.893 The colonial powers (Great Britain, Italy and
France) replaced the autonomous and self governed clan based family
system in Somalia with controlled and artificially created territorial
divisions among the people to serve the economic interests of the
colonial powers, thereby destroying the pre-colonial ethnic solidarity of
the Somali people. During decolonization in 1960, the UN General
Assembly forced the already divided clans to unite into a single State
called the United Republic of Somalia. The UN introduced a
890 Available at: http://oceansbeyondpiracy.org/publications/economic-cost-somali-

piracy-2012 (Visited on November 16, 2014).
891 Available at: http://en.wikipedia.org/wiki/Somalia (Visited on November 16,
2014).
892 Upendra Acharya, “Humanitarian Aid and Assistance to Constrain Piracy in
Somalia: Ignored Facts and the Political Delivery of Charity” in Bimal N. Patel
and Hitesh Thakkar (eds.), Maritime Security and Piracy (Global Issues,
893 Id., at 82.
254
democratic governing system that ended with the assassination of the

President Abdirashid Ali Shermarke, followed by a coup d’etat in 1969.
Thereafter Major General Mohamed Siad Barre, who at that time
commanded the Army, became the next leader of Somalia.894
6.5.2 Civil War and Famine

Post colonial Somalia suffered from many ongoing and
simultaneous conflicts, including civil wars between armed opposition
groups led by various clan leaders.895 During the reign of Mohamed
Siad Barre, cold war mentality and tactics played a huge role in
Somalia’s war against Ethiopia (13th July 1977 – 15th March 1978) in an
attempt to reclaim pre colonial Somali territory. As a result, Somalia’s
quest for a unified Somali territory inevitably led to a clanist Somalia,
which in turn led to discrimination, oppression and violence from
Barre’s government. Barre’s regime placed itself at war with its own
people. Consequently, as many as 10,000 Somalis died and another
2,50,000 fled to neighbouring countries. After the collapse of Barre
regime in 1991, Somalia became a lawless country, allowing division
between the North and the South by two leaders, i.e., Mohammed Farah
Aideed and Ali Mahdi Mohammed, who began fighting for the control
of their geographic areas. At the same time, a severe drought (1991 –
1993) hit the Somali people and caused widespread starvation because
of the country’s social and political conditions. These factors forced the
Somali people to resort to piracy.896
6.5.3 Failed Relief Missions of UN and USA

In the face of the humanitarian crisis caused by the Somali Civil
War, the International Committee of the Red Cross (ICRC) and other
NGO’s began to put pressure on the international community to spur
the UN Consolidated Inter Agency Appeal for Somalia in 1992. The
UN imposed an arms embargo on Somalia to bring peace between
Mohammed Farah Aideed and Ali Mahdi Mohammed. They signed a
ceasefire and the UN Security Council announced the “United Nations
Operation in Somalia (UNOSOM)”, comprising of 500 U.N. soldiers to
monitor this ceasefire and to protect the relief materials from looting.
Unfortunately, the UNOSOM was not successful in achieving its
894 Ibid.
895 Ibid.
896 Id., at 83.
255
objectives as neither it was able to control the conflict, nor was it able
to effectively deliver the assistance to the targeted people.897 On 3rd
December 1992, the UN Security Council adopted another resolution
“to use all necessary means to provide humanitarian assistance to
Somalia”.898 The Unified Task Force (UNITAF), a force of 37,000
troops led by USA, was subsequently sent under this resolution to
conduct “Operation Restore Hope”. Food delivery to the victims of
famine was improved under this mission. However, the focus was only
on delivering food, and not on addressing health conditions. This
operation did not focus on maintaining the arms embargo. The
UNOSOM II took control of operations from UNITAF in March 1993.
This military approach to a humanitarian problem did not resolve the
issue as expected. The USA withdrew its forces after the highly
publicised deaths of its 18 soldiers in the Battle of Mogadishu. The UN
eventually withdrew its UNOSOM II Operation in 1995. After the
withdrawal of the UN forces, the situation in Somalia worsened as the
conflict between the militant leaders of North and South Somalia
continued. Thus, “Operation Restore Hope” was not able to restore the
hope of the Somali people at all. As a result, many of them turned to
piracy in search of livelihood.899
6.5.4 Illegal Fishing and Toxic Waste Dumping

When Somalis could no longer get adequate grazing grounds
because of severe drought, many took up small scale fishing. However,
illegal fishing has diminished Somalia’s coastal resources upon which
the Somali people depend for survival. It is estimated that every year
foreign fishermen plunder $300 million by illegal fishing in the Somali
coastal region.900 In the absence of an effective Navy, Coast Guard or
Government to stop them, the foreign fishing vessels used illegal
fishing methods. European countries have taken advantage of
Somalia’s lawlessness and lack of control over its territorial sea and
exclusive economic zone by dumping toxic waste there. The dumping
of toxic waste causes fish to die and degrades other marine resources.
Toxic waste can also have long term negative effects on human health,
groundwater, soil, agriculture and fisheries. In reaction to the plunder
897 Ibid.
898 Resolution No. 794 of 1992.
256
and destruction of their environmental resources, Somalis were left

with few alternatives for survival other than piracy.901 They justify
pirate attacks on foreign ships as legitimate, arguing that they are aimed
only at levying a tax as compensation for their depleted resources. The
Somali term for pirate is “burcad badeed” which means “ocean
robber”. However, the pirates themselves prefer to be called
“badaadinta badah” which means “saviour of the sea”.902
Many former militiamen also became pirates to make easy money.
However, militia leaders justified piracy as a tool to fulfil the basic
needs of the people, which can also be termed as an act of “Robin
Hoodism”. However, these militia leaders were not interested in nation
building and long term stability of the country. Therefore, piracy in
Somalia represents a reaction of the needs of the people caused by
several internal and external factors and the greed of cash seeking
criminally minded individuals. Somali people decided to live the life of
a pirate and risk punishment if apprehended, rather than to starve to
death.903
6.6 PIRACY BUSINESS MODEL

The Somali piracy business model was developed in the previous
decade (2000-2010) and is based on profit motive with profit sharing.
There is a stock exchange in the Somali town of Harardhere where
pirates can raise money to purchase the tools of the trade and which
also allows non pirates to share in the profits of piracy. In 2010, one
wealthy former pirate named Mohammed took Reuters904 around the
small stock exchange facility and told that it has proved to be an
important way for the pirates to win support from the local community
for their operations despite the dangers involved. He also told that the
stock exchange started with 15 “maritime companies” and now hosts 72
of them. The shares of these companies are open to all and everybody
can take part, whether personally at sea or on land by providing cash,
901 Ibid.
902 Available at: http://en.wikipedia.org/wiki/Piracy_in_Somalia (Visited on
November 15, 2014).
904 Reuters is an international news agency headquartered in Canary Wharf, London,
England, United Kingdom and a division of Thomson Reuters. It transmits news
in English, French, Arabic, Spanish, German, Italian, Portuguese, Russian,
Japanese and Chinese.
257
weapons and other useful materials. Thus, piracy has been converted
into a community activity.905 The administration has no influence in
Haradhere, where according to the statement of Mohamed Adam, the
town’s deputy security officer, “Piracy related business has become the
main profitable economic activity in our area and as locals we depend
on its output”.906
6.7 CUSTOMARY INTERNATIONAL LAW ON PIRACY

In the beginning of the sixteenth century, attempts were being made
to deal with piracy as a crime under international law, even though
there were no means of investigating, trying and punishing pirates
through any international agency. Enforcement was necessarily left to
the municipal courts of each country. However, it was doubtful that the
court of which country would have jurisdiction to try the pirates, if the
crime of piracy took place beyond territorial waters and was committed
by foreigners.907
In order to solve this problem, a principle was evolved that the
jurisdiction of municipal courts of all countries extended to piratical
acts committed by any national on any ship because the pirate by his
criminal conduct, placed himself beyond the protection of any State. In
the eyes of law, he became an enemy of whole mankind, i.e. hostis
humani generis, and therefore, was subject to arrest, trial and
punishment by all States. The vessel used by him was likewise subject
to seizure by all States as it also lost the protection of the flag State.

191 (2012). A shareholder named Ms. Sara Ibrahim, aged 22 years, whose initial
investment was a rocket propelled grenade received by her as part of her divorce
settlement, revealed t hat she made $75,000 within only 38 days of her joining the
company. In the process, the piracy stock exchange has transformed Haradhere
(400 km northeast of Mogadishu), from the once small fishing village into a
bustling town that earns a percentage of every ransom to be used on
infrastructure including hospitals and public schools. Luxury 4x4 cars owned by
the pirates and those who bankroll them create honking traffic jams along its pot-
holed, dusty streets.
906 Available at: http://www.reuters.com/article/2009/12/01/us-somalia-piracy-
investors-idUSTRE5B01Z920091201 (Visited on November 17, 2014).
907 Samareshwar Mahanty and Abhinav Kumar, “Piracy: The Law, Issues and
Challenges” in Bimal N. Patel and Hitesh Thakkar (eds.), Maritime Security and
Piracy (Global Issues, Challenges and Solutions) 29 (Eastern Book Company,
Lucknow, 2012).
258
This concept came to be known as piracy jure gentium. This was one of
the earliest instances of international law being administered by
municipal courts of many civilized States and in due course of time, the
doctrine ripened into customary international law, although an effective
and efficacious international agency for the administration of the law
was yet to be developed.908
6.8 INTERNATIONAL LEGAL FRAMEWORK RELATING

TO PIRACY AND VIOLENT CRIMES AT SEA
In 1926, the League of Nations (the predecessor of the United
Nations Organization) appointed a subcommittee on piracy comprising
of experts, headed by Japanese jurist Michikazu Matsuda, for the
purpose of progressive codification of international law on piracy. The
report of the subcommittee defined piracy as “sailing the seas for
private ends without authorization from the government of any State
with the object of committing depredations upon property or acts of
violence against persons”. The report was circulated amongst the
members of the League and useful replies were obtained from many of
them.909 But unfortunately, the matter fizzled out with the dissolution of
the League on 20th April 1946. The next effort to codify the law of
piracy began under the auspices of the United Nations, ending in the
adoption of the Geneva Convention on the High Seas, 1958,910 and three
other Conventions on Law of the Sea911 by the first United Nations
Conference on The Law of the Sea. The next step in this direction was
the signing of the United Nations Convention on the Law of the Sea
(UNCLOS), 1982, which is a comprehensive law for the Oceans.912 The
International Convention Against the Taking of Hostages, 1979, the
Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation (SUA Convention), 1988, and the Protocol of
2005 to the SUA Convention, 1988, have collectively filled many of the
limitations of the provisions of UNCLOS, 1982, dealing with piracy.
908 Id., at 30.

909 Id., at 33.
910 It came into force on 30th September 1962.
911 The other three Conventions were the Geneva Convention on the Territorial Sea
and the Contiguous Zone, 1958; the Geneva Convention on the Continental
Shelf, 1958; and the Geneva Convention on Fishing and the Conservation of
Living Resources of the High Seas, 1958.
259
Used together, these legal instruments complement each other in the

context of piracy and armed robbery at sea.913
6.8.1 Geneva Convention on The High Seas, 1958

This Convention was the result of the First United Nations
Conference on Law of the Sea, which was held at Geneva, Switzerland,
from 24th February to 27th April 1958.914 Till date, it has been signed and
ratified by 63 States. It defines the term High Seas as “all parts of the
sea that are not included in the territorial sea or in the internal waters of
a State”.915 It states that piracy consists of any of the following acts-
I. Any illegal acts of violence or detention, or any act of
depredation, committed for private ends by the crew or the passengers
of a private ship or a private aircraft, and directed:
a) on the high seas, against another ship or aircraft, or against
b) against a ship, aircraft, persons or property in a place outside the
II. Any act of voluntary participation in the operation of a ship or of
an aircraft with knowledge of facts making it a pirate ship or aircraft;
III. Any acts of inciting or intentionally facilitating an act described
above.916
It further provides that all States shall cooperate to the fullest
possible extent in the repression of piracy on the high seas or in any
other place outside the jurisdiction of any State.917 The acts of piracy
defined by this Convention, committed by a warship, government ship
or government aircraft whose crew has mutinied and taken control of
the ship or aircraft are assimilated to acts committed by a private
ship.918
913 J. Ashley Roach, “Global Conventions on Maritime Crimes Involving Piratical

Acts” 46 CWRJIL 120 (2013).
914 Available at: http://legal.un.org/diplomaticconferences/lawofthesea-
1958/lawofthesea-1958.html (Visited on November 27, 2014).
915 Available at: http://www.gc.noaa.gov/documents/8_1_1958_high_seas.pdf
(Visited on November 27, 2014). Article 1 of the Geneva Convention on the High
Seas, 1958.
916 Ibid. Article 15 of the Geneva Convention on the High Seas, 1958.
260
A ship or aircraft is considered a pirate ship or aircraft if it is

intended by the persons in dominant control to be used for the purpose
of committing one of the acts referred to in Article 15. The same
applies if the ship or aircraft has been used to commit any such act, so
long as it remains under the control of the persons guilty of that act.919
A ship or aircraft may retain its nationality although it has become a
pirate ship or aircraft. The retention or loss of nationality is determined
by the law of the State from which such nationality was derived.920
On the high seas, or in any other place outside the jurisdiction of any
State, every State may seize a pirate ship or aircraft, or a ship taken by
piracy and under the control of pirates, and arrest the persons and seize
the property on board. The courts of the State which carried out the
seizure may decide upon the penalties to be imposed, and may also
determine the action to be taken with regard to the ships, aircraft or
property, subject to the rights of third parties acting in good faith.921
Where the seizure of a ship or aircraft on suspicion of piracy has been
effected without adequate grounds, the State making the seizure shall
be liable to the State the nationality of which is possessed by the ship or
aircraft, for any loss or damage caused by the seizure.922 A seizure on
account of piracy may only be carried out by warships or military
aircraft, or other ships or aircraft on government service authorized to
that effect.923 Except where acts of interference derive from powers
conferred by treaty, a warship which encounters a foreign merchant
ship on the high seas is not justified in boarding her unless there is
reasonable ground for suspecting:
(a) That the ship is engaged in piracy; or
(b) That the ship is engaged in the slave trade; or
(c) That though flying a foreign flag or refusing to show its flag, the
ship is in reality, of the same nationality as the warship.924
In the cases provided for in subparagraphs (a), (b) and (c) above, the
warship may proceed to verify the ship’s right to fly its flag. To this
end, it may send a boat under the command of an officer to the
suspected ship. If suspicion remains after the documents have been
924 Ibid. Article 22(1) of the Geneva Convention on the High Seas, 1958.
261
checked, it may proceed to a further examination on board the ship,

which must be carried out with all possible consideration.925 If the
suspicions prove to be unfounded, and provided that the ship boarded
has not committed any act justifying them, it shall be compensated for
any loss or damage that may have been sustained.926 In addition to
piracy, this Convention also makes a provision to prevent and punish
the transportation of slaves.927
6.8.2 United Nations Convention on Law of the Sea, 1982

This Convention is a comprehensive document comprising of 320
Articles divided into 17 Parts along with 9 Annexes. It has codified
almost every aspect of the Law of the Sea and is a significant
improvement over the four Geneva Conventions of 1958. It has been
signed and ratified by 167 parties.928 It was the result of the Third
United Nations Conference on the Law of the Sea. The Second
Conference did not deal with piracy. The Third Conference took twelve
sessions from 1973 to 1982 to draft this Convention.929 However, this
Convention did not improve the legal provisions relating to piracy. The
definition of piracy,930 definition of pirate ship or aircraft,931 provisions
relating to the duty of States to cooperate in the repression of piracy, 932
piracy by a warship, government ship or government aircraft,933
retention or loss of nationality of a pirate ship or aircraft,934 seizure of
927 Ibid. Article 13 of the Geneva Convention on the High Seas, 1958, provides that
every State shall adopt effective measures to prevent and punish the transport of
slaves in ships authorized to fly its flag, and to prevent the unlawful use of its
flag for that purpose. Any slave taking refuge on board any ship, whatever its
flag, shall ipso facto be free. Article 99 of the United Nations Convention on
Law of the Sea, 1982, also makes identical provisions to prevent and punish the
transportation of slaves.
928 Available at: http://www.eoearth.org/view/article/156775/ (Visited on August 12,
2015).
929 Ibid.
262
pirate ship or aircraft,935 liability for seizure without adequate

grounds,936 ships and aircraft which are entitled to seize on account of
piracy,937 right of visit,938 are a verbatim reproduction of the Geneva
Convention on the High Seas, 1958. Thus, despite protracted
deliberations for nine years (from 1973 to 1982), little attention seems
to have been paid to improve the efficacy of the provisions relating to
piracy.939
The definition of piracy mentioned under the Geneva Convention on
the High Seas, 1958, and the United Nations Convention on the Law of
the Sea, 1982, is not comprehensive as it does not cover all kinds of
criminal violence at sea. According to this definition, piracy can be
committed only for private ends.940 Hence an act of maritime terrorism
on the high seas would fall outside the ambit of this definition as
terrorist attacks are carried out generally for the furtherance of religious
or political objectives. Further, if a piratical act takes place within the
territorial waters of a State, it would be punishable only if the law of
the coastal State criminalizes it as such.941
It is important to mention here that apart from piracy and slave trade,
this Convention also makes provisions to prevent and punish illicit
traffic in narcotic drugs and psychotropic substances942 and
unauthorized broadcasting from the high seas.943

938 Ibid. Article 110 of the UNCLOS, 1982. However, unlike the Geneva Convention
on the High Seas, 1958, it provides that a warship can also board a ship on the
high seas if it suspects that the ship is without nationality, or that the ship is
engaged in unauthorized broadcasting and the flag State of the warship has
jurisdiction under Article 109. Article 110(4) applies these provisions mutatis
mutandis to military aircraft. Article 110(5) applies these provisions to any other
duly authorized ships or aircraft clearly marked and identifiable as being on
government service. These two provisions are an addition to the legal framework
on the high seas and were absent from the Geneva Convention on the High Seas,
1958.
940 Ibid.
941 Ibid.
942 Supra note 9. Article 108(1) of the UNCLOS, 1982, provides that all States shall
cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic
substances engaged in by ships on the high seas contrary to international
263
6.8.3 International Convention Against The Taking of Hostages, 1979

This Convention was enacted by the United Nations to develop
international cooperation between States in devising and adopting
effective measures for the prevention, prosecution and punishment of
all acts of hostage taking.944 This Convention also provides a
mechanism to deal with ship hijacking and taking of crew members
hostage for ransom. It has 174 State parties till date.945
It defines the offence of hostage taking and further provides that an
attempt to commit hostage taking and abetment to hostage taking are
also covered within the definition of hostage taking.946 Each State party
is under a duty to make the offence of hostage taking punishable by
conventions. Article 108(2) provides that any State which has reasonable grounds
for believing that a ship flying its flag is engaged in illicit traffic in narcotic
drugs or psychotropic substances may request the cooperation of other States to
suppress such traffic.
943 Ibid. Article 109(1) of the UNCLOS, 1982, provides that all States shall cooperate
in the suppression of unauthorized broadcasting from the high seas. Article
109(2) provides that for the purposes of this Convention, "unauthorized
broadcasting" means the transmission of sound, radio or television broadcasts
from a ship or installation on the high seas intended for reception by the general
public contrary to international regulations, but excluding the transmission of
distress calls. Article 109(3) provides that any person engaged in unauthorized
broadcasting may be prosecuted before the court of: (a) the flag State of the ship;
(b) the State of registry of the installation; (c) the State of which the person is a
national; (d) any State where the transmissions can be received; or (e) any State
where authorized radio communication is suffering interference. Article 109(4)
provides that on the high seas, a State having jurisdiction in accordance with
paragraph 3 may, in conformity with Article 110, arrest any person or ship
engaged in unauthorized broadcasting and seize the broadcasting apparatus.
944 Available at:
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-
5&chapter=18&lang=en (Visited on November 27, 2014). Preamble of the
Hostage Taking Convention, 1979.
945 Ibid.
946 Ibid. Article 1(1) of the Hostage Taking Convention, 1979, provides that a person
commits the offence of hostage taking who seizes or detains and threatens to kill,
to injure or to continue to detain another person in order to compel a third party,
namely a State, an international intergovernmental organization, a natural or
juridical person, or a group of persons, to do or abstain from doing any act as an
explicit or implicit condition for the release of the hostage. Article 1(2) provides
that any person who attempts to commit an act of hostage taking or participates
as an accomplice of anyone who commits or attempts to commit an act of
hostage taking likewise commits an offence for the purposes of this Convention.
264
appropriate penalties.947 This Convention also makes provisions for the

prosecution948 and extradition949 of offenders. For this Convention to
947 Ibid. Article 2 of the Hostage Taking Convention, 1979, provides that each State
party shall make the offences set forth in Article 1 punishable by appropriate
penalties which take into account the grave nature of those offences. Article 5(1)
further provides that each State party shall take such measures as may be
necessary to establish its jurisdiction over any of the offences set forth in Article
1 which are committed: (a) in its territory or on board a ship or aircraft registered
in that State; (b) by any of its nationals or, if that State considers it appropriate,
by those stateless persons who have their habitual residence in its territory; (c) in
order to compel that State to do or abstain from doing any act; or (d) with respect
to a hostage who is a national of that State, if that State considers it appropriate.
Article 5(2) provides that each State party shall likewise take such measures as
may be necessary to establish its jurisdiction over the offences set forth in Article
1 in cases where the alleged offender is present in its territory and it does not
extradite him to any of the States mentioned in Article 5(1). Article 5(3) provides
that this Convention does not exclude any criminal jurisdiction exercised in
accordance with internal law.
948 Ibid. Article 6(1) of the Hostage Taking Convention, 1979, provides that upon
being satisfied that the circumstances so warrant, any State party in the territory
of which the alleged offender is present shall, in accordance with its laws, take
him into custody or take other measures to ensure his presence for such time as is
necessary to enable any criminal or extradition proceedings to be instituted. That
State party shall immediately make a preliminary inquiry into the facts. Article 7
provides that the State party where the alleged offender is prosecuted shall in
accordance with its laws communicate the final outcome of the proceedings to
the Secretary General of the United Nations.
949 Ibid. Article 10(1) of the Hostage Taking Convention, 1979, provides that the
offences set forth in Article 1 shall be deemed to be included as extraditable
offences in any extradition treaty existing between States parties. States Parties
undertake to include such offences as extraditable offences in every extradition
treaty to be concluded between them. Article 10(2) provides that if a State party
which makes extradition conditional on the existence of a treaty receives a
request for extradition from another State party with which it has no extradition
treaty, the requested State may at its option consider this Convention as the legal
basis for extradition in respect of the offences set forth in Article 1. Extradition
shall be subject to the other conditions provided by the law of the requested
State. Article 10(3) provides that States Parties which do not make extradition
conditional on the existence of a treaty shall recognize the offences set forth in
Article 1 as extraditable offences between themselves subject to the conditions
provided by the law of the requested State. Article 10(4) provides that the
offences set forth in Article 1 shall be treated, for the purpose of extradition
between States Parties, as if they had been committed not only in the place in
which they occurred but also in the territories of the States required to establish
their jurisdiction in accordance with Article 5(1). Article 9(1) provides that a
265
apply, the offence of hostage taking must have some transnational

character.950
6.8.4 Convention For The Suppression of Unlawful Acts Against The

Safety of Maritime Navigation, 1988
This Convention was enacted to develop international cooperation
between States in devising and adopting effective and practical
measures for the prevention of all unlawful acts against the safety of
maritime navigation, and the prosecution and punishment of their
perpetrators.951 This Convention also provides a mechanism to deal
with ship hijacking and taking of crew members hostage for ransom. It
has 164 State parties till date. These 164 States represent 94.5 per cent
of the gross tonnage of the world's merchant fleet. It is based upon the
Civil Aviation, 1971 and the Convention for the Suppression of
Unlawful Seizure of Aircraft, 1971 and criminalises similar behaviour
in the context of maritime navigation.952 After the Achille Lauro
incident,953 the international community realized that there are some
loopholes in the definition of piracy as mentioned in the United Nations
Convention on Law of the Sea, 1982, as it does not cover all kinds of
request for the extradition of an alleged offender, pursuant to this Convention,

shall not be granted if the requested State Party has substantial grounds for
believing that the request for extradition for an offence set forth in Article 1 has
been made for the purpose of prosecuting or punishing a person on account of
his race, religion, nationality, ethnic origin or political opinion; or that the
person’s position may be prejudiced for the reason that communication with him
by the appropriate authorities of the State entitled to exercise rights of protection
cannot be effected. Article 9(2) provides that with respect to the offences as
defined in this Convention, the provisions of all extradition treaties and
arrangements applicable between States Parties are modified as between States
Parties to the extent that they are incompatible with this Convention.
950 Ibid. Article 13 of the Hostage Taking Convention, 1979, provides that this
Convention shall not apply where the offence is committed within a single State,
the hostage and the alleged offender are nationals of that State and the alleged
offender is found in the territory of that State.
951 Available at: http://cns.miis.edu/inventory/pdfs/aptmaritime.pdf (Visited on
August 12, 2015). Preamble of the SUA Convention, 1988.
952 Available at:
http://en.wikipedia.org/wiki/Convention_for_the_Suppression_of_Unlawful_Act
s_a gainst_the_Safety_of_Maritime_Navigation (Visited on November 27, 2014).
953 See Supra note 21.
266
criminal violence at sea. Hence this Convention was enacted to plug

those loopholes. It covers within its ambit every type of criminal
violence at sea.954 The scope of maritime offences under this
Convention is very broad as it covers nearly all acts of violence
committed against ships, and also punishes those who attempt, abet or
threaten such violent acts.955
Each State Party is duty bound to make the offences set forth in
Article 3 punishable by appropriate penalties which take into account
the grave nature of those offences.956 This Convention applies if the
954 Supra note 138. Article 3(1) of the SUA Convention, 1988, provides that any
person commits an offence within the meaning of this Convention if he
unlawfully and intentionally:
I. Seizes or exercises control over a ship by force or threat thereof or any other form
of intimidation; or
II. Performs an act of violence against a person on board a ship if that act is likely to
endanger the safe navigation of that ship; or
III. Destroys a ship or causes damage to a ship or to its cargo which is likely to
endanger the safe navigation of that ship; or
IV. Places or causes to be placed on a ship, by any means whatsoever, a device or
substance which is likely to destroy that ship, or cause damage to that ship or its
cargo, which endangers or is likely to endanger the safe navigation of that ship;
or
V. Destroys or seriously damages maritime navigational facilities or seriously
interferes with their operation, if any such act is likely to endanger the safe
navigation of a ship; or
VI. Communicates information which he knows to be false, thereby endangering the
safe navigation of a ship; or
VII. Injures or kills any person, in connection with the commission or the attempted
commission of any of the offences hereinbefore mentioned.
955 Supra note 100, at 99. An attempt or abetment to commit any such offence is also
an offence within the meaning of this Convention. Article 3(2) provides that any
person also commits an offence if that person: (a) Attempts to commit any of the
offences mentioned under Article 3(1); or (b) Abets the commission of any of the
offences mentioned under Article 3(1) perpetrated by any person or is otherwise
an accomplice of a person who commits such an offence; or (c) Threatens, with
or without a condition, as is provided for under national law, aimed at
compelling a physical or juridical person to do or refrain from doing any act, to
commit any of the offences mentioned under Article 3(1) (b), (c) and (e), if that
threat is likely to endanger the safe navigation of the ship in question.
956 Supra note 138. Article 5 of the SUA Convention, 1988. Article 6(1) further
provides that each State party shall take such measures as may be necessary to
establish its jurisdiction over the offences set forth in Article 3 when the offence
is committed: (a) against or on board a ship flying the flag of that State at the
267
ship is navigating or is scheduled to navigate into, through or from

waters beyond the outer limit of the territorial sea of a single State, or
the lateral limits of its territorial sea with adjacent States.957 It also
makes provisions for the prosecution958 and extradition959 of offenders
which are similar to the corresponding provisions under the
International Convention Against The Taking of Hostages, 1979. Any
State Party having reason to believe that an offence mentioned under
Article 3 is likely to be committed shall, in accordance with its national
law, furnish as promptly as possible any relevant information in its
possession to those States which it believes would be the States having
established jurisdiction in accordance with Article 6.960However,
nothing in this Convention shall affect in any way the rules of
international law pertaining to the competence of States to exercise
investigative or enforcement jurisdiction on board ships not flying their
flag.961 It is further provided that this Convention does not apply to a
warship, a ship owned or operated by a State when being used as a
naval auxiliary or for customs or police purposes, and a ship which has
time the offence is committed; or (b) in the territory of that State, including its
territorial sea; or (c) by a national of that State. Article 6(2) provides that a State
Party may also establish its jurisdiction over any such offence when: (a) it is
committed by a Stateless person whose habitual residence is in that State; or (b)
during its commission a national of that State is seized, threatened, injured or
killed; or (c) it is committed in an attempt to compel that State to do or abstain
from doing any act. Article 6(3) provides that any State Party which has
established jurisdiction mentioned in Article 6(2) shall notify the Secretary
General of the International Maritime Organization. If such State Party
subsequently rescinds that jurisdiction, it shall notify the Secretary General.
Article 6(4) provides that each State Party shall take such measures as may be
necessary to establish its jurisdiction over the offences set forth in Article 3 in
cases where the alleged offender is present in its territory and it does not
extradite him to any of the States Parties which have established their
jurisdiction in accordance with Articles 6(1) and 6(2). Article 6(5) provides that
this Convention does not exclude any criminal jurisdiction exercised in
accordance with national law.
957 Ibid. Article 4(1) of the SUA Convention, 1988. Article 4(2) provides that in cases
where the Convention does not apply pursuant to Article 4(1), it nevertheless
applies when the offender or the alleged offender is found in the territory of a
State Party other than the State referred to in Article 4(1).
958 Ibid. Articles 7 and 10 of the SUA Convention, 1988.
959 Ibid. Article 11 of the SUA Convention, 1988.
268
been withdrawn from navigation or laid up.962 Nothing in this

Convention affects the immunities of warships and other government
ships operated for non commercial purposes.963
6.8.5 Protocol for the Suppression of Unlawful Acts Against the Safety
of Fixed Platforms Located on the Continental Shelf
This Protocol was concluded at the same time as the SUA
Convention. It extends the requirements of the Convention to fixed
platforms such as those engaged in the exploitation of offshore oil and
gas.964 The Protocol of 2005 to The SUA Convention supplemented this
Convention by adding some new provisions and amending some other
provisions. This Protocol adds provisions which criminalize the use of
ships to transfer or discharge biological, chemical, or nuclear weapons.
However, the Protocol specifies that transporting nuclear materials is
not an offence if they are transported to or from the territory or under
the control of a State party to the “Treaty on the Non-Proliferation of
Nuclear Weapons”. It also prohibits ships from discharging
oil, liquefied natural gas, radioactive materials or other hazardous or
noxious substances in quantities or concentrations that are likely to
cause death or serious injury or damage. Finally, it prohibits the use of
such weapons or substances against ships involved in maritime
navigation. This Protocol has been ratified by 31 States till date.965
The Hostage Taking Convention, 1979 and the SUA Convention,
1988, collectively fill many of the limitations in the provisions related
to piracy in the UNCLOS, 1982. Further, the Protocol of 2005 to the
SUA Convention makes significant improvements to its predecessor.
Used together, these legal instruments complement each other in the
context of piracy, armed robbery and criminal violence at sea.966 All
countries should promptly ratify and implement these three legal
instruments to combat piracy, armed robbery and criminal violence at
sea in a more effective manner.
962 Ibid. Article 2(1) of the SUA Convention, 1988.

963 Ibid. Article 2(2) of the SUA Convention, 1988.
964 Available at:
http://www.imo.org/OurWork/Security/Instruments/Pages/SUA.aspx (Visited on
December 1, 2014).
965 Supra note 138.
269
6.8.6 Djibouti Code of Conduct

The International Maritime Organization’s sub regional meeting on
maritime security, piracy and armed robbery against ships for western
Indian Ocean, Gulf of Aden and Red Sea States was held in Djibouti
(capital of the Republic of Djibouti) from 26th to 29th January 2009.967
The meeting adopted four resolutions on maritime security.968 By
Resolution 1, the meeting adopted a Code of Conduct concerning the
repression of piracy and armed robbery against ships in the Western
Indian Ocean and the Gulf of Aden, which was signed by the
representatives of Djibouti, Ethiopia, Kenya, Madagascar, Maldives,
Seychelles, Somalia, United Republic of Tanzania and Yemen on 29th
January 2009. It remains open for signature at IMO headquarters in
London by other countries of the region. Since then, Comoros, Egypt,
Eritrea, Jordan, Mauritius, Mozambique, Oman, Saudi Arabia, South
Africa, Sudan and the United Arab Emirates have also signed it.969 The
definition of piracy mentioned in the Code is a verbatim repetition of
the definition mentioned in Article 101 of the United Nations
Convention on Law of the Sea, 1982.970 The Code defines armed
robbery against ships as “any unlawful act of violence or detention or
any act of depredation, or threat thereof, other than an act of piracy,
committed for private ends and directed against a ship or against
persons or property on board such ship, within a State’s internal waters,
archipelagic waters and territorial sea”.971 Any act of inciting or of
intentionally facilitating any such act is also covered within the
967 Available at:

http://www.imo.org/OurWork/Security/PIU/Documents/DCoC%20English.pdf
(Visited on November 30, 2014). It was attended by 17 out of the 21 States in the
region. In addition, 12 States from outside the region, 4 United Nations bodies
and programmes, 9 inter governmental organizations and 3 non-governmental
organizations attended the meeting as observers.
968 Resolution 1 provided for the adoption of a Code of Conduct concerning the
repression of piracy and armed robbery against ships in the Western Indian
Ocean and the Gulf of Aden. Resolution 2 provided for technical cooperation and
assistance. Resolution 3 provided for enhancing training in the region.
Resolution 4 provided for expressions of appreciation.
969 Available at: http://www.imo.org/OurWork/Security/PIU/Pages/DCoC.aspx
970 Supra note 154. Article 1(1) of the Djibouti Code of Conduct, 2009.
971 Ibid. Article 2(a) of the Djibouti Code of Conduct, 2009.
270
definition of armed robbery against ships.972 The signatories to the Code

have agreed to cooperate in a manner consistent with international law
in-
I. The rescue of ships, persons and property subject to piracy and
armed robbery and the facilitation of proper care, treatment and
repatriation of seafarers, fishermen, other shipboard personnel and
passengers subject to such acts, particularly those who have been
subjected to violence;973
II. The investigation, arrest and prosecution of persons, who are
reasonably suspected of having committed acts of piracy and armed
robbery against ships, including those inciting or intentionally
facilitating such acts;974 and
972 Ibid. Article 2(b) of the Djibouti Code of Conduct, 2009.

973 Ibid. Article 2(1) of the Djibouti Code of Conduct, 2009, provides that consistent
with their available resources and related priorities, their respective national laws
and regulations, and applicable rules of international law, the participants intend
to cooperate to the fullest possible extent in the repression of piracy and armed
robbery against ships with a view towards: (a) sharing and reporting relevant
information; (b) interdicting ships and/or aircraft suspected of engaging in piracy
or armed robbery against ships; (c) ensuring that persons committing or
attempting to commit piracy or armed robbery against ships are apprehended and
prosecuted; and (d) facilitating proper care, treatment and repatriation for
seafarers, fishermen, other shipboard personnel and passengers subject to piracy
and armed robbery against ships, particularly those who have been subjected to
violence.
974 Ibid. Article 4(3) of the Djibouti Code of Conduct, 2009, provides that consistent
with Article 2, each participant to the fullest possible extent intends to cooperate
in: (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. Article 4(4) provides that
any participant 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. Article 4(5)
provides that 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
participant is subject to the authority of that participant. No participant should
pursue such a ship in or over the territory or territorial sea of any coastal State
without the permission of that State. Article 4(6) provides that consistent with
international law, the courts of the participant which carries out a seizure
pursuant to Article 4(4) may decide upon the penalties to be imposed, and may
also determine the action to be taken with regard to the ship or property, subject
to the rights of third parties acting in good faith. Article 4(7) provides that the
participant which carried out the seizure pursuant to Article 4(4) may, subject to
its national laws, and in consultation with other interested entities, waive its
271
III. The conduct of shared operations, both among signatory States

and with Navies from countries outside the region, such as nominating
law enforcement or other authorized officials to embark on patrol ships
or aircraft of another signatory.975
In addition, the Code provides for sharing of related information
through a number of centres and national focal points, using existing
infrastructures and arrangements for ship to shore to ship
communications (i.e. the Regional Maritime Rescue Coordination
primary right to exercise jurisdiction and authorize any other participant to

enforce its laws against the ship and /or persons on board. Article 4(8) provides
that unless otherwise arranged by the affected participants, any seizure made in
the territorial sea of a participant pursuant to Article 4(5) should be subject to the
jurisdiction of that participant. Article 6(1) provides that the participants intend
that any measures taken pursuant to this Code of Conduct should be carried out
by law enforcement or other authorized officials from warships or military
aircraft, or from other ships or aircraft clearly marked and identifiable as being in
government service and authorized to that effect. Article 6(2) provides that the
participants recognize that multiple States, including the flag State, the State of
suspected origin of the perpetrators, the State of nationality of persons on board
the ship, and the State of ownership of cargo may have legitimate interests in
cases arising pursuant to Articles 4 and 5. Therefore, the participants intend to
liaise and cooperate with such States and other stakeholders, and to coordinate
such activities with each other to facilitate the rescue, interdiction, investigation
and prosecution. Article 6(3) provides that the participants intend, to the fullest
possible extent, to conduct and support the conduct of investigations in cases of
piracy and armed robbery against ships taking into account the relevant
international standards and practices, and in particular, recommendations
adopted by the IMO.
975 Ibid. Article 7(1) of the Djibouti Code of Conduct, 2009, provides that in
furtherance of operations contemplated by this Code of Conduct, a participant
may nominate law enforcement or other authorized officials (embarked officers)
to embark in the patrol ships or aircraft of another participant (host participant)
as may be authorized by the host participant. Article 7(2) provides that the
embarked officers may be armed in accordance with their national law and
policy and the approval of the host participant. Article 7(3) provides that when
embarked, the host participant should facilitate communications between the
embarked officers and their headquarters, and should provide messing and
quarters for the embarked officers aboard the patrol ships or aircraft in a manner
consistent with host participant personnel of the same rank. Article 7(4) provides
that embarked officers may assist the host participant and conduct operations
from the host participant ship or aircraft if expressly requested to do so by the
host participant, and only in the manner requested. Such request may only be
made, agreed to, and acted upon in a manner that is not prohibited by the laws
and policies of both participants.
272
Centre in Mombasa, Kenya, the Rescue Coordination Sub-Centre in

Dar-es-Salaam, United Republic of Tanzania, and the Regional
Maritime Information Centre in Sana, Yemen). 976
The signatories also undertook to review their national legislation
with a view to ensuring that there are laws in place to criminalize
piracy and armed robbery against ships and to make adequate provision
for the exercise of jurisdiction, conduct of investigations and
prosecution of alleged offenders.977
976 Ibid. Article 8(1) of the Djibouti Code of Conduct, 2009, provides that each
participant should designate a national focal point to facilitate coordinated,
timely and effective information flow among the participants consistent with the
purpose and scope of this Code of Conduct. In order to ensure coordinated,
smooth and effective communications between their designated focal points, the
participants intend to use the piracy information exchange centres in Kenya,
United Republic of Tanzania and Yemen. Each centre and designated focal point
should be capable of receiving and responding to alerts and requests for
information or assistance at all times. Article 8(4) provides that each participant
should ensure the smooth and effective communication between its designated
focal point and other competent national authorities including search and rescue
coordination centres, as well as relevant non-governmental organizations. Article
8(7) provides that to facilitate the implementation of this Code of Conduct, the
participants intend to keep each other fully informed concerning their respective
applicable laws and guidance, particularly those pertaining to the interdiction,
apprehension, investigation, prosecution and disposition of persons involved in
piracy and armed robbery against ships. The participants may also undertake and
seek assistance to undertake publication of handbooks and convening of
seminars and conferences in furtherance of this Code of Conduct. Article 10(1)
provides that a participant may request any other participant, through the Centres
or directly, to cooperate in detecting any of the following persons, ships or
aircraft: (a) Persons who have committed or are reasonably suspected of
committing piracy; (b) Persons who have committed or are reasonably suspected
of committing armed robbery against ships; (c) Pirate ships, where there are
reasonable grounds to suspect that those ships are engaged in piracy; (d) Ships or
persons who have been subjected to piracy or armed robbery against ships.
Article 10(2) provides that a participant may also request any other participant,
through the Centres or directly, to take effective measures in response to reported
piracy or armed robbery against ships. Article 10(3) provides that cooperative
arrangements such as joint exercises or other forms of cooperation, as
appropriate, may be undertaken as determined by the participants concerned.
Article 10(4) provides that capacity building cooperation may include technical
assistance such as educational and training programmes to share experiences and
best practice.
977 Ibid. Article 11 of the Djibouti Code of Conduct, 2009, provides that in order to
allow for the prosecution, conviction and punishment of those involved in piracy
or armed robbery against ships, and to facilitate extradition or handing over
273
6.8.7 IMO Code of Practice For The Investigation of Crimes of Piracy

and Armed Robbery Against Ships, 2009
This Code was adopted by the twenty sixth regular session of the
Assembly of the International Maritime Organization through
Resolution A.1025(26) on 2nd December 2009. Concerned at the rising
number of acts of piracy and armed robbery against ships worldwide,
the Assembly observed that the fight against piracy and armed robbery
against ships is often impeded by the absence of effective legislation in
some countries for investigating reported cases of piracy and armed
robbery against ships. It was further observed that even when arrests
are made, some Governments lack the legislative framework and
investigative guidelines necessary to ensure the conviction and
punishment of those involved in acts of piracy and armed robbery
against ships.978
The purpose of this Code is to provide member States of the IMO
with an aide memoire (memorandum, especially a book or document
serving this purpose) to facilitate the investigation of the crimes of
piracy and armed robbery against ships.979 It defines piracy as an act
defined in Article 101 of the United Nations Convention on Law of the
Sea, 1982.980 The definition of armed robbery against ships mentioned
in this Code is a verbatim repetition of the definition mentioned in the
Djibouti Code of Conduct.981
The Code recommends States to take such measures as may be
necessary to establish their jurisdiction over the offences of piracy and
when prosecution is not possible, each participant intends to review its national
legislation with a view towards ensuring that there are national laws in place to
criminalize piracy and armed robbery against ships, and adequate guidelines for
the exercise of jurisdiction, conduct of investigations and prosecution of alleged
offenders.
978 Available at:
http://www.safety4sea.com/images/media/pdf/A.1025(26)%20Piracy%20Investig
atio n.pdf (Visited on December 1, 2014). Earlier, on 29th November 2001, the
Assembly, at its twenty second regular session and through Resolution A.922(22)
had adopted the Code of Practice for the Investigation of the Crimes of Piracy
and Armed Robbery Against Ships, and at its twenty fifth session and through
Resolution A.1002(25), requested the Maritime Safety Committee to review and
update the Code of Practice as a matter of urgency, taking into account the
developments and emerging needs.
979 Ibid. Article 1 of the IMO Code of Practice, 2009.
980 Ibid. Article 2.1 of the IMO Code of Practice, 2009.
274
armed robbery against ships, including amendment in their legislation,

if necessary, to enable them to apprehend and prosecute persons
committing such offences. States are also encouraged to take the
necessary legislative, judicial and law enforcement actions so as to be
able to receive, prosecute or extradite any pirates or suspected pirates
and armed robbers arrested by warships or military aircraft or other
ships or aircraft clearly marked and identifiable as being on
government service. States should take into consideration appropriate
penalties while drafting legislation on piracy.982 States are further
encouraged to implement the provisions of UNCLOS, 1982, the SUA
Convention, 1988, and the Protocol to the SUA Convention for the
Suppression of Unlawful Acts Against the Safety of Fixed Platforms
Located on the Continental Shelf, 1988.983
Coastal States are encouraged to cooperate to the fullest possible
extent in the investigation of armed robbery incidents and attempts,
together with other interested States such as the flag State, and where
appropriate, to enter into bilateral or multilateral agreements to
facilitate such investigations and the prosecution of the perpetrators.984
When information is received that a ship is under attack and is
accessible, initial responders and investigators should attend without
delay. The responsibilities of those who first attend the crime scene are
preservation of life, prevention of the escape of offenders, issuing
warnings to other ships, protection of crime scene and securing
evidence.985 The course of investigation will depend to a large extent on
the circumstances of the offence. In this regard, the investigating
agency should take into account the seriousness of the incident. This
can range from theft of property to hostage taking and ultimately to loss
of life. Consequently, the action to be pursued should be proportionate
to the crime committed and consistent with the laws that were violated.
However, various considerations which would be common to all piracy
and armed robbery investigations are establishing and recording all
relevant facts, recording individual witness accounts, detailed forensic
examination of scenes, searching intelligence databases and distribution
of information and intelligence to appropriate agencies.986

984 Ibid. Article 3.4.1 of the IMO Code of Practice, 2009.
275
6.9 ANTI PIRACY MEASURES ADOPTED BY MERCHANT SHIPS

Modern pirates use small boats to launch an attack on merchant
ships. They also use large vessels termed as mother ships to carry the
smaller attacking vessels within a striking distance of their prey. They
take advantage of the small number of crew members on board modern
cargo vessels.987 Major shipping and trade routes go through the Gulf of
Aden and the Straits of Malacca, making it easy for pirates to board
merchant vessels from small motorboats. Other active areas include the
Somali Basin, Niger Delta and the South China Sea. Many merchant
vessels have to lower cruising speeds to allow for navigation and traffic
control, making them easy targets for pirates, who are always hunting
for a prey. Due to increase in pirate attacks on merchant ships in recent
years, merchant ships have adopted various methods to resist and
thwart pirate attacks.988
987 Munaf Shaikh, “Effect of Piracy on Seafarers and Resisting Measures Being
Deployed” in Bimal N. Patel and Hitesh Thakkar (eds.), Maritime Security and
Lucknow, 2012).
988 Ibid. The following measures have been adopted by merchant ships to resist
pirate attacks:
I. Security drill is conducted at regular intervals (This drill is confined to actions prior
to the pirates boarding the vessel, as surrender is considered the only wise option
in case they manage to board the vessel).
II. Latest security reports sent by international organizations such as the International
Maritime Bureau (IMB) and the United Kingdom Marine Trade Operations
(UKMTO) are regularly monitored. Local Navy warnings prove to be of great
help for plotting the positions of suspected mother vessels.
III. Details of every ship are registered with UKMTO and Maritime Security Centre –
Horn of Africa (MSC – HOA) for their records and monitoring.
IV. Watch schedule for crew manning while passing through piracy prone areas is
prepared in advance. Emphasis is laid on the work and rest hours as approved by
the International Labour Organization (ILO) and Standards of Training,
Certification and Watch Keeping (STCW). However, these requirements often
get compromised while transiting piracy prone areas.
V. Totally dark ships are prepared for night sailing. Search lights are tested and kept
ready for use in case of an emergency. Night vision binoculars are made
available to all watch going personnel.
VI. All doors and hatches providing access to the accommodation, machinery spaces
and engine room are secured from inside.
VII. Fire fighting equipments like foam monitors are tested periodically and kept
ready for immediate use.
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6.10 ANTI PIRACY AND MARITIME SECURITY MEASURES

TAKEN BY INTERNATIONAL ORGANIZATIONS
The growth of maritime trade and commerce in the past two decades
has crowded the oceans with cargo vessels, dry bulk carriers and super
tankers. The ever increasing ocean traffic and its cargo spawned a surge
in maritime piracy in the previous decade (2000-2010). Modern pirates
are interested in cargo as well as hostage taking. Targets for modern
pirates range from oil tankers to private yachts. Modern maritime
piracy has become one of the major threats to safety at sea. Piracy
disturbs international navigation, sailing and trade, thereby threatening
the lives and property of people of many countries. Apart from piracy,
perceptions of a terrorist threat to shipping have forced a reappraisal
and expansion of the concept of maritime security.989 Many
International Organizations have adopted various anti piracy and
maritime security measures to combat the menace of piracy. The efforts
of these organizations are discussed hereunder:
6.10.1 United Nations Security Council

The UN Charter requires the States to refrain from the threat or use
of force against the territorial integrity or political independence of any
State.990 However, Chapter VII of the Charter also provides two
exceptions to this rule, i.e., the States may use force in self defence
when an armed attack occurs,991 and the UN Security Council may
VIII. Fire fighting hoses are mounted on the ship side around the whole vessel. They
can be used in an emergency to prevent pirates from boarding the vessel by
deterring them with a jet of water.
IX. The ship is fenced with barbed wire in order to prevent the pirates from boarding
it.
X. Some merchant ships employ armed security guards for the foolproof security of
the crew and the vessel. Those merchant ships who cannot afford armed security
guards have the option of posting dummy watchmen.
989 A. Raghunadha Reddy, “Maritime Piracy: Legal Issues and Challenges” in Bimal
990 Available at: http://www.un.org/en/documents/charter/chapter1.shtml (Visited on
August 12, 2015). Article 2(4) of the UN Charter provides that all members shall
refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations.
991 Available at: http://www.un.org/en/documents/charter/chapter7.shtml (Visited on
August 12, 2015). Article 51 of the UN Charter provides that nothing in the
277
authorize the use of force for the maintenance of international peace

and security.992 As a key part of its counter piracy strategy, the UN
Security Council has passed thirteen resolutions till date,993 which have
present Charter shall impair the inherent right of individual or collective self
defence if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain international
peace and security. Measures taken by Members in the exercise of this right of
self-defence shall be immediately reported to the Security Council and shall not
in any way affect the authority and responsibility of the Security Council under
the present Charter to take at any time such action as it deems necessary in order
to maintain or restore international peace and security.
992 Ibid. Article 39 of the UN Charter provides that the Security Council shall
determine the existence of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide what measures shall be
taken in accordance with Articles 41 and 42, to maintain or restore international
peace and security. Article 41 provides that the Security Council may decide
what measures not involving the use of armed force are to be employed to give
effect to its decisions, and it may call upon the Members of the United Nations to
apply such measures. These may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic relations. Article 42
provides that should the Security Council consider that measures provided for in
Article 41 would be inadequate or have proved to be inadequate, it may take such
action by air, sea, or land forces as may be necessary to maintain or restore
international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of members of the
United Nations.
993 Available at: http://www.un.org/depts/los/piracy/piracy_documents.htm (Visited
on August 12, 2015). The Security Council adopted its first resolution on Somali
piracy on 2nd June 2008, which condemned acts of piracy and armed robbery
against vessels in the territorial waters and on the high seas off the coast of
Somalia. This resolution urged the international community to render assistance
to vessels threatened by or under attack by pirates or armed robbers, in
accordance with international law. States cooperating with the Transitional
Federal Government of Somalia in the fight against piracy and armed robbery at
sea off the coast of Somalia were allowed for a period of six months from the
date of the resolution to enter the territorial waters of Somalia and use all
necessary means for the purpose of repressing acts of piracy and armed robbery
at sea, in a manner consistent with international law.
The second resolution on Somali piracy was passed by the Security Council on 7th
October 2008, which further called upon States to actively take part in the fight
against piracy on the high seas off the coast of Somalia, in particular by
deploying naval vessels and military aircraft, in accordance with international
law.
278
The third resolution on Somali piracy, passed by the Security Council on 2nd
December 2008, called on States with relevant jurisdiction under international
law and national legislation, to cooperate in investigating and prosecuting piracy.
It also urged SUA Convention States to fully implement their obligations by
working with the Secretary General of the United Nations and the International
Maritime Organization (IMO) in order to build judicial capacity to prosecute
pirates. At the request of the Transitional Federal Government of Somalia, this
resolution also renewed the authority of States to enter the territorial waters of
Somalia and use all necessary means for the purpose of repressing acts of piracy
and armed robbery at sea, in a manner consistent with international law, for a
period of twelve months from the date of this resolution.
The fourth resolution on Somali piracy, passed by the Security Council on 16th
December 2008, encouraged States to continue to cooperate with the Transitional
Federal Government of Somalia in the fight against piracy and armed robbery at
sea. It further urged States, shipping and insurance industries, and the
International Maritime Organization (IMO) to continue to develop avoidance,
evasion, and defensive best practices and advisories to take when under attack or
when sailing in waters off the coast of Somalia. Approximately twelve months
later, the Security Council reaffirmed the provisions mentioned in this resolution
in the fifth resolution on Somali piracy, passed on 30th November 2009.
The sixth resolution on Somali piracy, passed by the Security Council on 27th April
2010, called on member States to criminalize piracy under their domestic laws
and to favourably consider the prosecution of suspected pirates and
imprisonment of convicted pirates apprehended off the coast of Somalia. It
requested the Secretary General of the United Nations to present a report within
3 months on the possible options to further the aim of prosecuting and
imprisoning persons responsible for acts of piracy and armed robbery at sea off
the coast of Somalia, including, in particular, options for creating special
domestic chambers possibly with international components, a regional tribunal
or an international tribunal and corresponding imprisonment arrangements.
The seventh resolution on Somali piracy, passed by the Security Council on 23rd
November 2010, encouraged member States to continue to cooperate with the
Transitional Federal Government of Somalia in the fight against piracy and
armed robbery at sea. This resolution also renewed the authority of States to
enter the territorial waters of Somalia and use all necessary means for the
purpose of repressing acts of piracy and armed robbery at sea, in a manner
consistent with international law, for a period of 12 months from the date of this
resolution. It further requested the Secretary General to report to the Security
Council within 11 months of the adoption of this resolution, on the
implementation of this resolution and on the situation with respect to piracy and
armed robbery at sea off the coast of Somalia.
The eighth resolution on Somali piracy, passed by the Security Council on 11th April
2011, stressed upon the need for a comprehensive response to tackle piracy and
its underlying causes by the international community. It requested member
States, United Nations Office on Drugs and Crime (UNODC), the United
Nations Development Programme (UNDP), the United Nations Political Office
279
for Somalia (UNPOS) and regional organizations to assist the Transitional

Federal Government of Somalia and regional authorities in Somalia in
establishing a system of governance, rule of law and police control in lawless
areas where land based activities related to piracy are taking place, and also
requested the TFG and regional authorities in Somalia to increase their own
efforts in this regard. It further requested the Secretary General to report within 6
months on the protection of Somali natural resources and waters, and on alleged
illegal fishing and illegal dumping of toxic substances off the coast of Somalia,
taking into account the studies on this matter previously conducted by the United
Nations Environmental Programme and other competent agencies and
organizations.
The ninth resolution on Somali piracy, passed by the Security Council on 24th
October 2011, reiterated its call upon all States, and in particular flag, port, and
coastal States, States of the nationality of victims as well as of perpetrators of
piracy and armed robbery, and other States with relevant jurisdiction under
international law and national legislation, to cooperate in determining
jurisdiction, and in the investigation and prosecution of all persons responsible
for acts of piracy and armed robbery off the coast of Somalia, including anyone
who incites or facilitates an act of piracy. It further called upon all member
States to report till 31st December 2011, to the Secretary General on measures
they have taken to criminalize piracy under their domestic law and to prosecute
and support the prosecution of individuals suspected of piracy off the coast of
Somalia and imprisonment of convicted pirates.
The tenth resolution on Somali piracy, passed by the Security Council on 22nd
November 2011, called upon States to cooperate on the issue of hostage taking
and the prosecution of suspected pirates for taking hostages. It renewed its call
upon States and regional organizations that have the capacity to do so, to take
part in the fight against piracy and armed robbery at sea off the coast of Somalia,
in particular, consistent with this resolution and international law, by deploying
naval vessels, arms and military aircraft and through seizures and disposition of
boats, vessels, arms and other related equipment used in the commission of
piracy and armed robbery at sea off the coast of Somalia. It further renewed the
authority of States to enter the territorial waters of Somalia and use all necessary
means for the purpose of repressing acts of piracy and armed robbery at sea, in a
manner consistent with international law, for a period of 12 months from the date
of this resolution.
The eleventh and twelfth resolutions on Somali piracy, passed by the Security
Council on 21st November 2012 and 18th November 2013 respectively,
underlined the primary responsibility of Somali authorities in the fight against
piracy and armed robbery at sea off the coast of Somalia, and requested them to
pass a complete set of counter piracy laws without further delay, and to declare
an exclusive economic zone in accordance with the United Nations Convention
on the Law of the Sea, 1982. They also urged States to intensify their efforts to
investigate and prosecute key figures of criminal networks involved in piracy
who illicitly plan, organize, facilitate, or finance and profit from such attacks.
They further renewed the authority of States to enter the territorial waters of
280
provided unprecedented legal authority to member States to pursue

pirates by authorizing the use of military force in the Somali territory
and waters. But this authority is limited by a requirement that the
Transitional Federal Government (TFG) of Somalia must consent to
such actions.994 Apart from thirteen resolutions on piracy in Somalia,
period of 12 months from the date of the resolutions. The eleventh resolution
specifically commended the establishment of the Trust Fund supporting the
initiatives of States countering piracy off the coast of Somalia and the IMO
Djibouti Code Trust Fund and urged both State and non State actors affected by
piracy, most notably the international shipping community, to contribute to them.
The thirteenth and the latest resolution on Somali piracy, passed by the Security
Council on 12th November 2014, recognized the need to continue investigating
and prosecuting those who plan, organize, or illicitly finance or profit from pirate
attacks off the coast of Somalia, including key figures of criminal networks
involved in piracy. It also urged States, working in conjunction with relevant
international organizations, to adopt legislation to facilitate prosecution of
suspected pirates off the coast of Somalia. It also renewed its call upon States
and regional organizations that are able to do so, to take part in the fight against
piracy and armed robbery at sea off the coast of Somalia, in particular, consistent
with this resolution and international law, by deploying naval vessels, arms, and
military aircraft, by providing basing and logistical support for counter piracy
forces, and by seizing and disposing of boats, vessels, arms, and other related
equipment used in the commission of piracy and armed robbery at sea off the
coast of Somalia, or for which there are reasonable grounds for suspecting such
use. It further renewed the authority of States to enter the territorial waters of
period of 12 months from the date of this resolution. It commended the
International Criminal Police Organization (INTERPOL) for operationalizing a
global piracy database that consolidates information about piracy off the coast of
Somalia and facilitates the development of actionable analysis for law
enforcement, and urged all States to share such information with INTERPOL for
use in the database, through appropriate channels. It commended the
contributions of the Trust Fund and the IMO funded Djibouti Code of Conduct
and urged both state and non State actors affected by piracy, most notably the
international shipping community, to contribute to them. It also invited the
International Maritime Organization (IMO) to continue its contributions to the
prevention and suppression of acts of piracy and armed robbery against ships, in
coordination, in particular, with the United Nations Office on Drugs and Crime
(UNODC), the World Food Program (WFP), the shipping industry, and all other
parties concerned, and recognized the IMO’s role concerning privately
contracted armed security personnel on board ships in high-risk areas.
281
the UN Security Council has also passed two resolutions on piracy in

the Gulf of Guinea.995
6.10.2 Secretary General’s Role

The UN Secretary General regularly issues statements pursuant to
requests from the Security Council and the General Assembly and also
presents periodic reports addressing key developments in piracy off the
coast of Somalia.996 The latest report on piracy was submitted by
Secretary General Ban Ki Moon to the Security Council on 16th
October 2014. In this report, he welcomed the substantial efforts made
by Somalia and the international community in tackling piracy off the
coast of Somalia. However, he also expressed his concern that without
the continuous support provided by the international naval presence and
the self protection measures adopted by the shipping industry, large
995 Available at: http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/N11/573/21/PDF/N1157321.pdf?OpenElement
(Visited on August 12, 2015). The first resolution on piracy in the Gulf of
Guinea, passed by the Security Council on 31st October 2011, encouraged the
Economic Community of West African States (ECOWAS), the Economic
Community of Central African States (ECCAS) and the Gulf of Guinea
Commission (GGC), through concerted action, to counter piracy and armed
robbery at sea in the Gulf of Guinea through the conduct of bilateral or regional
maritime patrols consistent with international law. It further requested the States
concerned to take appropriate steps to ensure that the activities they undertake
pursuant to this resolution do not have a practical effect of denying or impairing
freedom of navigation on the high seas or the right of innocent passage in the
territorial sea to vessels of third States. It also called upon States, acting in
cooperation with the shipping industry, the insurance industry and the
International Maritime Organization (IMO), to issue to ships entitled to fly their
flag, appropriate advice and guidance in context of the Gulf of Guinea, on
avoidance, evasion and defensive techniques and measures to take, if under the
threat of attack, or attack when sailing in the waters of the Gulf of Guinea.
The second resolution on piracy in the Gulf of Guinea, passed by the Security
Council on 29th February 2012, urged States of the Gulf of Guinea region to take
prompt action, at national and regional levels, with the support of the
international community and by mutual agreement, to develop and implement
national maritime security strategies for the establishment of a legal framework
for the prevention and repression of piracy and armed robbery at sea, as well as
prosecution of persons engaging in those crimes, and punishment of those
convicted of those crimes.
282
scale piracy may return. He called upon the international community to

increase its support to Somali efforts in the areas of governance, rule of
law and economic development. He also observed that efforts to
establish the maritime patrol capacity of Somalia should continue in
coordination with other capacity building efforts. Supporting Somalia
in guarding and defending its coastal area will limit the number of safe
harbours that could be used by pirates to anchor hijacked ships, thus
hampering piracy. He appealed for the immediate and unconditional
release of all innocent seafarers held hostage in Somalia so that they
can rejoin their families, and called upon the Somali authorities and all
relevant stakeholders to redouble their efforts to secure the immediate
release of the hostages.997
6.10.3 International Maritime Organization

Acts of piracy and armed robbery against ships are of tremendous
concern to the International Maritime Organization (IMO), a
specialized agency of the United Nations. The IMO has been working
to combat piracy since 1983, when its Assembly passed a resolution
calling on States to take urgent measures to prevent and suppress acts
of piracy in or adjacent to their waters.998 Since then, the IMO has
actively and effectively addressed the question of maritime piracy
through various initiatives. The most important contribution of the IMO
towards combating piracy at the international level has been the
997 Available at: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/740

(Visited on December 31, 2014). In the previous report submitted by Secretary
General Ban Ki Moon to the Security Council on 21st October 2013, he
welcomed the significant decrease in reported incidents of piracy off the coast of
Somalia owing to the concerted efforts of Somalia and the international
community. However, he observed that the situation with regard to the rule of
law, security, development and governance in Somalia that has allowed piracy to
arise, has not changed sufficiently so as to deter criminals from attacking ships
and holding seafarers hostage for ransom. Pirate attacks may increase if the
international naval presence is reduced or if commercial vessels relax their self
protection measures. It is therefore important that the international community’s
focused and coordinated efforts to address piracy and armed robbery at sea off
the coast of Somalia must continue. Recent gains in the fight against piracy
demonstrate that the international community can effectively address complex
challenges with transnational aspects by working together with a problem
solving approach.
998 Supra note 14, at 108. Resolution A. 545(13) on Measures to Prevent Acts of
Piracy and Armed Robbery Against Ships was adopted by the IMO on 17th
November 1983.
283
adoption of many important resolutions on the prevention and

suppression of piracy.999 Another major contribution of IMO in the fight
against piracy and armed robbery has been to develop and circulate
amongst its member States, guidance on preventing and dealing with
piracy and armed robbery, to send experts to the most affected
countries to sensitise them to their problems and to assist them in
preparing coordinated counter measures. To this end, the IMO has
issued a number of circulars which contain detailed guidelines and
recommendations on fighting piracy and enhancing maritime
security.1000
999 Ibid. Similar resolutions like that of 1983 were passed in 1991 [Resolution
A.683(17) on Prevention and Suppression of Acts of Piracy and Armed Robbery
Against Ships, adopted on 6 November 1991)], 1993 [Resolution A.738(18) on
Measures to Prevent and Suppress Piracy and Armed Robbery Against Ships,
adopted on 4 November 1993], 2009 [Resolution A.1025(26) on Code of Practice
for the Investigation of Crimes of Piracy and Armed Robbery Against Ships,
adopted on 2nd December 2009], 2011 [Resolution A.1044(27) on Piracy and
Armed Robbery Against Ships in Waters off the Coast of Somalia, adopted on
30th November 2011] and 2013 [Resolution A.1069(28) on Prevention and
Suppression of Piracy, Armed Robbery Against Ships and Illicit Maritime
Activity in The Gulf of Guinea, adopted on 29th November 2013].
1000 Id., at 109. The most important circulars issued by the IMO for combating piracy
are:
I. Circular on Interim Guidance for Flag States on Measures to Prevent and Mitigate
Somalia Based Piracy, 2012. It provided that flag States should develop,
implement, publicise and apply a national counter piracy policy consistent with
the customary international law of the sea and their national law. Such a policy
could include the introduction of systems and mechanisms that will facilitate the
protection of ships and permit them to take proportionate and reasonable
measures to avoid being hijacked by pirates and mitigate the risk to seafarers
serving on such ships.
II. Circular on Interim Guidance to Private Maritime Security Companies (PMSC’s)
Providing Privately Contracted Armed Security Personnel Onboard Ships in the
High Risk Area, 2012. It provides that PMSC’s should establish procedures to
provide maritime security services to ship owners and ship operators and comply
with all relevant legal requirements. PMSC’s should have professional capability
to carry out their role, which is the protection of persons on board and the ship
against unlawful attack, using only that force which is strictly necessary and
reasonable.
III. Circular on Piracy and Armed Robbery Against Ships in Waters Off The Coast of
Somalia (Best Management Practices for Protection Against Somalia Based
Piracy).
284
The IMO has also established several regional and sub regional
arrangements designed to prevent, deter and repress piracy.1001 Some of
such arrangements are mentioned hereunder:
I. The Singapore Statement, 2007, resulting from the IMO’s efforts
to improve maritime security and environmental protection in the
Straits of Malacca.1002
II. The Sub Regional Coast Guard Network For The West and
Central African Regions, 2008, concluded under the auspices of the
Maritime Organization For West and Central Africa.1003
III. The Code of Conduct Concerning The Repression of Piracy and
Armed Robbery Against Ships in The Western Indian Ocean and the
Gulf of Aden, 2009, also known as The Djibouti Code of Conduct.1004
6.10.4 International Maritime Bureau

The International Maritime Bureau (IMB) was established in 1981 as
a specialized division of the International Chamber of Commerce
(ICC), with the backing of the International Maritime Organization
(IMO), to act as a focal point in the fight against all types of maritime
crime and malpractice. One of the IMB’s principal areas of expertise
lies in the suppression of piracy. Concerned at the alarming growth of
piracy, the IMB Piracy Reporting Centre (PRC) was created by it in
1992. The centre is based in Kuala Lumpur, Malaysia. It maintains a
round the clock watch on the world’s shipping lanes, reporting pirate
attacks to local law enforcement agencies and issuing warnings about
piracy hotspots to shipping.1005
The PRC works and shares information with the IMO, various
governmental, inter governmental and law enforcement agencies,
including all industry bodies in an attempt to understand the nature of
this crime and reduce its effects to crew, vessels and cargo.1006 Being a
trusted point of reporting for worldwide piracy and armed robbery

1002 Ibid.
1003 Ibid.
1004 Ibid.
1005 Available at: https://www.icc-ccs.org/piracy-reporting-centre (Visited on
January 1, 2015).
1006 Ibid.
285
incidents, the PRC is able to immediately identify any shift in this

criminal activity and alert all concerned parties.1007
6.10.5 United Nations Office on Drugs and Crime

The Counter Piracy Programme (CPP) of the United Nations Office
on Drugs and Crime (UNODC), which was launched in 2009 and
confined to helping Kenya only, has now extended its operations to
Maldives, Mauritius, Seychelles, Somalia and Tanzania. CPP supports
efforts to detain and prosecute piracy suspects in compliance with
international standards of rule of law and respect for human rights. The
focus of the programme is to ensure that piracy trials are fair and
efficient and that detention facilities are humane and secure for
suspected and convicted pirates in Somalia as well as in other regional
centres.1008 CPP also supports the criminal justice professionals of
several States who are working on Somali piracy cases. With over 1200
suspected or convicted pirates detained in 21 countries across the
world, UNODC also provides extensive support to law enforcement
agencies and legal systems as they face the challenge of investigating
and prosecuting piracy.1009 As the prosecution of pirates presents an
immense legal and logistical challenge, UNODC has indeed played an
1007 Ibid. The main functions of the PRC are listed hereunder:
I. Issuing daily status reports on piracy and armed robbery to ships via broadcasts on
the Inmarsat-C Safety Net Service.
II. Reporting the incidents of piracy and armed robbery at sea to law enforcement
agencies and the I.M.O.
III. Helping local law enforcement agencies in apprehending pirates and assisting in
bringing them to justice.
IV. Assisting ship owners and crew members whose vessels have been attacked or
hijacked.
V. Publishing comprehensive quarterly and annual reports detailing piracy statistics.
VI. Providing updates on pirate activity via the Internet.
1009 Id., at 63. In just five years since its launch, CPP has many impressive
accomplishments to its credit, i.e., four courtrooms constructed; support to six
piracy prosecuting centres; nine prisons constructed, refurbished or underway; 46
hostages helped to return home; 300 Somali pirates prosecuted or awaiting trial
in Kenya, Mauritius and Seychelles; 350 judicial and law enforcement officials
who have participated in UNODC organized learning exchanges; 400 Somali
prison staff members trained; 500 days of interpretation provided; 1400
international standard prison spaces provided; and 600 prisoners provided with
welfare support.
286
important role in ensuring that the rule of law is observed in the

process.1010
6.10.6 North Atlantic Treaty Organization

In 2008, the U.N. Secretary General Ban Ki Moon requested the
support of North Atlantic Treaty Organization (NATO)1011 for counter
piracy operations authorized by UN Security Council Resolutions. The
first standing NATO Maritime Group conducted “Operation Allied
Provider” from October to December 2008, which escorted vessels
carrying cargoes for the World Food Program, and also patrolled the
region of Gulf of Aden.1012 This operation was succeeded by
“Operation Allied Protector”, which was conducted by the first
standing maritime group from March to June 2009 and by the second
NATO maritime group from June to August 2009. This operation is
presently named “Operation Ocean Shield”, which is NATO’s counter
piracy mission in the Gulf of Aden and off the Horn of Africa. NATO’s
role is to provide naval escorts and deterrence, while increasing
cooperation with other counter piracy operations in the area in order to
optimise efforts and tackle the evolving pirate trends and tactics.1013
Since March 2012, NATO has also taken the initiative to erode the
logistics and support base of pirates by disabling pirate vessels or
skiffs, attaching tracking beacons to mother ships and allowing the use
of force to disable or destroy suspected pirate or armed robber
vessels.1014 In June 2014, the North Atlantic Council extended this
1010 Ibid.
1011 The NATO (North Atlantic Treaty Organization) is an international alliance that
consists of 28 member States from North America and Europe. It was established
at the signing of the North Atlantic Treaty on 4th April 1949. Article Five of the
treaty States that if an armed attack occurs against one of the member States, it
should be considered an attack against all members, and other members shall
assist the attacked member, with armed forces if necessary. Of the 28 member
countries, two are located in North America and twenty five are European
countries while Turkey is in Eurasia. The member countries of N.A.T.O. are
United States of America, Canada, Belgium, Denmark, France, Iceland, Italy,
Luxembourg, Norway, Netherlands, Portugal, United Kingdom, Greece, Turkey,
Germany, Spain, Czech Republic, Hungary, Poland, Bulgaria, Estonia, Latvia,
Lithuania, Romania, Slovakia, Slovenia, Albania and Croatia.
1013 Available at: http://www.mc.nato.int/ops/Pages/OOS.aspx (Visited on January
2, 2015).
287
operation until the end of 2016. NATO is conducting counter piracy

activities in full complementarity with the relevant UN Security
Council Resolutions.1015
6.10.7 European Union

Concerned with the rise in piracy off the coast of Somalia, the
European Union created the European Union Naval Force Somalia (EU
NAVFOR) in 2008.1016 Operating under the auspices of the UN Security
Council resolutions, its mission is to deter, prevent and repress
maritime piracy; protect vulnerable vessels off the coast of Somalia,
which specifically include those delivering food aid; and monitor
fishing activities off the coast of Somalia. On 10th November 2008, the
EU Council formally authorized “Operation Atalanta”, a EU military
and naval operation dedicated to the deterrence, prevention and
repression of acts of piracy and armed robbery off the coast of Somalia.
Another EU initiative is the Maritime Security Centre – Horn of Africa
(MSC HOA), which provides constant monitoring of vessels transiting
through the Gulf of Aden and supplies anti piracy guidance to shipping
companies and operators. It utilizes an interactive website to post the
latest guidance and allows vessels to post their movement through the
region.1017
EU NAVFOR also works in cooperation with NATO, Naval Forces
and Merchant Navy personnel from several countries, including Russia,
China, Japan and India. “Operation Atalanta” has a 100 percent
success rate in safely escorting World Food Programme vessels
delivering food and other aid to Somali people. Similarly, the operation
has protected the African Union Mission in Somalia (AMISOM)
shipments and other vulnerable shipping within the Internationally
Recommended Transit Corridor (IRTC).1018 It also protects around
50,000 ships annually undergoing transit through the Gulf of Aden,

1016 The European Union (EU) comprises 28 member States, which are party to
the founding treaties of the Union and thereby subject to the privileges and
obligations of membership. Member countries of the EU are Austria, Belgium,
Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain,
Sweden and United Kingdom.
288
Indian Ocean and the Arabian Sea. It has transferred suspected pirates
to competent authorities with a view to their prosecution and conviction
as a result of its close cooperation with regional governments such as
those of The Republic of Seychelles and Kenya.1019 Moreover, EU
NAVFOR has conducted and supported numerous Safety of Life at Sea
(SOLAS) rescue missions in the area; thereby helping local, regional
and international trading and fishing vessels in distress.1020 Although the
EU NAVFOR mission was scheduled to end this year, it has been
extended till the end of 2016 as an ongoing deterrent to piracy and
armed robbery.1021
6.10.8 The Contact Group on Piracy off The Coast of Somalia

The Contact Group on Piracy off the Coast of Somalia (CGPCS)
was created on 14th January 2009 at New York, USA, pursuant to the
UN Security Council resolution 1851 of 2008 as an international
cooperation mechanism to facilitate capture and prosecution of pirates
in Somalia’s coastal waters and to coordinate information relevant to
piracy and armed robbery at sea off the coast of Somalia. The CGPCS
held its first meeting on 14th January 2009.1022 As of 2015, it has grown
1019 Ibid.
1020 Available at: http://eunavfor.eu/mission/ (Visited on January 3, 2015).
1021 Available at: http://www.thenational.ae/uae/regional-navies-need-to-work-
together- to-tackle-piracy (Visited on January 4, 2015).
1022 Supra note 2, at 100. At its first meeting, the CGPCS established four working
groups, subsequently adding a fifth, which are mentioned hereunder:
I. Working Group 1 on Naval Cooperation, chaired by the United Kingdom. It focuses
on operational naval coordination, information sharing and capacity building. It
also assists in implementing and enforcing regional agreements such as the
Djibouti Code of Conduct.
II. Working Group 2 on Judicial Issues, chaired by Denmark. It addresses legal and
judicial issues and provides guidance to CGPCS States and international
organizations on all legal aspects of counter piracy. It has so far produced two
legal papers for the CGPCS. The first paper listed impediments to the
prosecution of pirates, while the second paper provided a checklist of steps a
State may take to ensure it can prosecute pirates.
III. Working Group 3 on Commercial Industry Coordination, chaired by the United
States of America. It works with the shipping industry and has been instrumental
in developing the Best Management Practices (BMP) measures, which include
providing guidelines to owners, masters and crew of ships to protect themselves
against hijacking. The BMP’s have been submitted to the IMO and widely
distributed within the shipping industry.
289
to include 80 countries and several international organizations,

including the African Union, the Arab League, the European Union, the
International Maritime Organization, the North Atlantic Treaty
Organization, and various departments and agencies of the United
Nations.1023
CGPCS meets in plenary sessions for one day three times every year
at the United Nations, while the working groups meet regularly to
develop and implement counter piracy policies and programmes.1024
CGPCS acts proactively and effectively, notwithstanding its being an
informal and ad hoc forum. It supports governments, international
organizations and the shipping industry in their fight against piracy and
has successfully served as an information sharing and cooperation
mechanism.1025
6.10.9 Combined Task Force 150

The CTF 150 is one of the three task forces operated by the
Combined Maritime Forces (CMF), a thirty nation naval coalition. Its
mission is to promote maritime security in order to counter terrorist acts
and related illegal activities which terrorists use to fund or conceal their
movements.1026 Its area of operation spans over two million square
IV. Working Group 4 on Public Information, chaired by Egypt. It aims at raising

public awareness of the dangers of piracy.
V. Working Group 5 on Pirate Enterprise Ashore, chaired by Italy. It coordinates
international efforts to identify and disrupt the private criminal enterprises
ashore, including the financial network of pirate leaders and their financiers.
1023 Available at: http://www.state.gov/t/pm/ppa/piracy/contactgroup/ (Visited on
January 3, 2015).
1025 Id., at 61.
1026 Available at: http://combinedmaritimeforces.com/ctf-150-maritime-security/
(Visited on January 4, 2015). Combined Maritime Forces (CMF) is
a multinational naval partnership, which exists to promote security, stability and
prosperity across approximately 2.5 million square miles of international waters,
which encompass some of the world’s most important shipping lanes.
CMF’s main focus areas are defeating terrorism, preventing piracy, encouraging
regional cooperation, and promoting a safe maritime environment. Participation
is purely voluntary. No nation is asked to carry out any duty that it is unwilling
to conduct. The contribution from each country varies depending on its ability to
contribute assets and the availability of those assets at any given time. CMF
operates three task forces, i.e., CTF 150 (Maritime Security and Counter
Terrorism), CTF 151 (Counter Piracy), and CTF 152 (Arabian Gulf Security and
290
miles, covering the Red Sea, the Gulf of Aden, the Indian Ocean and
the Gulf of Oman (but not the Arabian Gulf, which is the responsibility
of CTF 152). This area is a vital artery of world trade that includes the
main shipping routes from the far east to Europe and the USA, with
over 23,000 shipping movements per year. Over one third of the
world’s oil passes through the area of operation of CTF 150 each year.
The area of operation contains three narrow waterways, known as
choke points, where vessels are required to pass closely between two
shorelines. This means they have limited manoeuvrability and are more
vulnerable than would otherwise be the case in open waters.1027
The CTF 150 has been engaged in anti piracy operations in Somalia
in parallel to other independent anti piracy operations by other
countries and international organizations. The command of CTF 150 is
rotated between participatory nations on a four to six month basis.1028
The CTF 150 established the Maritime Security Patrol Area on 22nd
August 2008, through a narrow corridor within the Gulf of Aden, aimed
at deterring attack and hijacking of ships seeking safe passage through
the zone.1029 Maritime Security Operations (MSO’s) of CTF 150 help
develop security in the maritime environment, thereby contributing
towards stability and prosperity on both regional and global levels. The
CTF 150 vessels also assist mariners in distress and undertake
humanitarian work as required.1030
Cooperation). It is commanded by a U.S. Navy Vice Admiral, who also serves as

the Commander of the US Navy Central Command and US Navy Fifth Fleet. All
three commands are located at US Naval Support Activity, Bahrain. Thirty
member countries of CMF are Australia, Bahrain, Belgium, Canada, Denmark,
France, Germany, Greece, Italy, Japan, Jordan, Republic of Korea, Kuwait,
Malaysia, the Netherlands, New Zealand, Norway, Pakistan, The Philippines,
Portugal, Saudi Arabia, Seychelles, Singapore, Spain, Thailand, Turkey, UAE,
United Kingdom, United States of America and Yemen.
1027 Ibid.
1028 Ibid. The CTF 150 was a US Navy formation under the control of the US Naval
Forces Central Command (CENTCOM) till September 2001. After the terrorist
attacks of 11th September 2001, it was re established as a multinational coalition
in order to undertake counter terrorism operations at sea as part of “Operation
Enduring Freedom”. The coalition has grown and evolved beyond that
operation’s scope to encompass and address commonly perceived threats to
member States and their values.
1029 Available at: http://en.wikipedia.org/wiki/Combined_Task_Force_150 (Visited
on January 4, 2015).
1030 Supra note 213.
291

Combined Maritime Forces (CMF), a thirty nation naval coalition. Its
area of operation is the entire region patrolled by CMF. The
CMF’s existing task force in the region, CTF 150, was tasked with
maritime security operations, which include counter terrorism.
However, piracy is considered more of a law enforcement mission as
pirates generally have no connection with terrorism. It was decided that
CTF 150 could not conduct counter piracy operations effectively in the
region with its maritime security mandate. Consequently, CTF 151 was
established in January 2009 with a specific counter piracy mission
under the authority of UN Security Council resolutions 1816, 1838,
1846, 1851 and 1897. Its mission is to disrupt piracy and armed robbery
at sea and to engage with regional and other partners to build capacity
and improve relevant capabilities in order to protect global maritime
commerce and secure freedom of navigation. Command of CTF 151 is
rotated between participatory nations on three to six month basis. The
force flow in CTF 151 is constantly changing as ships and aircraft from
a variety of countries assign vessels, aircraft and personnel to the task
force.1031
In conjunction with the North Atlantic Treaty Organisation (NATO)
and the European Union Naval Force Somalia (EU NAVFOR), and
together with independently deployed naval ships, CTF 151 helps to
patrol the Internationally Recommended Transit Corridor (IRTC) in the
Gulf Aden. It also undertakes regional and key leader engagement,
strategic communications, and proactive public affairs, and supports
Best Management Practices (BMP).1032

Combined Maritime Forces (CMF), a thirty nation naval coalition. It
was established in March 2004.1033 It operates in the Arabian Gulf where
1031 Available at: http://combinedmaritimeforces.com/ctf-151-counter-piracy/

(Visited on January 4, 2015).
1032 Ibid.
1033 Available at: http://combinedmaritimeforces.com/ctf-152-gulf-security-
cooperation/ (Visited on January 4, 2015). The Arabian Gulf is a 989 km long
inland sea that separates Iran from the Arabian Peninsula. Countries with a
coastline on the Arabian Gulf, called the Gulf States, are (clockwise, from the
292
it coordinates Theatre Security Cooperation (TSC) activities with

regional partners such as Kuwait, Saudi Arabia, Qatar, Bahrain and the
United Arab Emirates; conducts Maritime Security Operations
(MSO); and remains prepared to respond to any crisis that may
develop. It also ensures freedom of navigation for merchant vessels.
Command of CTF 152 is rotated between participatory nations on a
three to six month basis.1034
6.11 ANTI PIRACY AND MARITIME SECURITY

MEASURES TAKEN BY MAJOR NAVAL POWERS
Many countries have adopted various anti piracy and maritime
security measures to combat the menace of piracy. The efforts of major
naval powers of the world in combating piracy are discussed hereunder:
6.11.1 United States of America

The United States of America continues to play a major role in
international efforts to combat piracy in waters off the coast of
Somalia. It played major roles in the adoption of several unanimous
UN Security Council resolutions addressing this problem. Following
the adoption of Security Council resolution 1851 of 2008, calling for
improved coordination among States and organizations involved in
combating piracy, the United States hosted in New York the first
meeting of the Contact Group on Piracy off the Coast of Somalia on
14th January 2009. The contact group has established working groups on
legal issues, military and operational coordination and information
sharing, shipping best practices, and diplomatic and public information
issues. In the context of the contact group, the United States has
promoted adherence to the “New York Declaration”, a nonbinding
instrument first adopted in May 2009 by the Bahamas, Liberia, the
Marshall Islands, and Panama, four major ship registry states. In
north): Iran, United Arab Emirates, Saudi Arabia, Qatar (on a peninsula off the
Saudi coast), Bahrain (on an island), and Kuwait and Iraq in the northwest.
Today the Gulf is one of the most strategic waterways in the world due to its
importance in world oil transportation. It contains in the region 700 billion
barrels of proven oil reserves, representing over half of the world’s oil reserves,
and over 2,000 trillion cubic feet of natural gas reserves, representing 45% of the
world’s total reserves. Arabian Gulf countries maintain about one third of the
world’s productive oil capacity. Majority of the oil exported from the Arabian
Gulf is transported by sea.
1034 Ibid.
293
September 2009, the United States, along with Cyprus, Japan,

Singapore, and the United Kingdom, also signed the declaration.1035 The
US Department of State describes the declaration as “a non binding
political document committing ship registry States to promulgate
internationally recognized best management practices (BMP) for
protection of their vessels against piracy”. These practices include such
things as increasing lookouts, ensuring that ladders are raised, and
preparing fire pumps to repel boarders.1036 In addition, the New York
Declaration countries have committed to ensure that vessels on their
registry have adopted and documented appropriate self protection
measures in their Ship Security Plans as part of the International Ship
and Port Facility Security (ISPS) Code.1037 The US Navy and US Coast
Guard have contributed ships and aircraft to NATO's counter piracy
operations and towards anti piracy and maritime security operations of
Combined Task Force 150 (CTF 151), Combined Task Force 151 (CTF
151) and Combined Task Force 152 (CTF 152). The United States has
also made efforts for the prosecution of pirates. The United States
believes that the first option for prosecution of a piracy incident should
be by the affected State(s), the flag state or the State of nationality of
the vessel’s owner or crew. If an affected state is unable or reluctant to
prosecute suspected offenders captured by the United States, the United
States has a Memorandum of Understanding (MoU) with Kenya to
1035 John R. Crook, “United States Participation in International Efforts to

Combat Piracy” 103 AJIL 753 (2009).
1036 Ibid.
1037 Available at: http://oceansbeyondpiracy.org/matrix/new-york-declaration
(Visited on January 5, 2015). The International Ship and Port Facility Security
Code (ISPS Code) is a comprehensive set of measures to enhance the security of
ships and port facilities, developed in response to the perceived threats to ships
and port facilities in the wake of the 9/11 attacks in the United States. The ISPS
Code is implemented through chapter XI-2 Special measures to enhance
maritime security in the International Convention for the Safety of Life at Sea
(SOLAS), 1974. The Code has two parts, one mandatory and one
recommendatory. In essence, the Code takes the approach that ensuring the
security of ships and port facilities is a risk management activity and that, to
determine what security measures are appropriate, an assessment of the risks
must be made in each particular case. The purpose of the Code is to provide a
standardised, consistent framework for evaluating risk, enabling Governments to
offset changes in threat with changes in vulnerability for ships and port facilities
through determination of appropriate security levels and corresponding security
measures.
294
facilitate the transfer of the suspected pirates to Kenya for prosecution

in their courts.1038 The United States is exploring similar arrangements
with other states to handle cases when affected states are unable or
reluctant to prosecute pirates.1039 The United States has also prosecuted
pirates in its own Courts in some cases. The present US Policy on
Piracy and Armed Robbery at Sea was signed by President George W.
Bush on 14th June 2007, in response to the rise of piracy off the coast of
Somalia.1040 Subsequently, in December 2008, the US National Security
Council released an action plan, implementing this policy, among
others, which seek to involve all nations, international organizations,
and industries that are interested in taking steps to repress piracy off the
Horn of Africa.1041 The policy adopted by the government of George W.
Bush continues to be followed by the government of President Barack
Obama, who assumed office in 2008.1042
6.11.2 United Kingdom

The United Kingdom is playing a lead role in international
operations aimed at combating piracy and providing humanitarian and
development assistance to Somalia. In order to ensure that pirates and
the proceeds from piracy are stopped and that the shipping and travel
industry can conduct its business as safely as possible, the UK is
supporting several counter piracy missions, namely NATO’s
“Operation Ocean Shield” and the EU NAVFOR’s “Operation
Atalanta”. The UK also supports CTF 151 and the UK Maritime Trade
Operation (run by the Royal Navy and based in the British Embassy in
Dubai) and further provides humanitarian and development assistance
to Somalia to counteract the root causes of piracy. The UK has
agreements in place with the Seychelles, Mauritius and Tanzania for
1038 Supra note 222, at 754.

1039 Supra note 183, at 63. The key sources of the US anti piracy policy are set forth
in four documents that establish the present US maritime policy, strategy,
guidance and action plans to address the problem of piracy off the coast of
Somalia and in the Gulf of Aden. These are: (1) The National Security
Presidential Directive of December 2004; (2) The National Strategy for Maritime
Security of September 2005; (3) The United States Maritime Security (Piracy)
Policy of June 2007; and (4) The National Security Council’s Action Plan on
Countering Piracy off The Horn of Africa of December 2008.
1040 Ibid.
1041 Id., at 64.
295
the prosecution of suspected pirates. The Piracy Ransoms Task Force

was established by David Cameron, Prime Minister of the UK, in
February 2012, for threatened countries to work together to reduce the
threat of piracy and ransom payments.1043 The UK has lead
responsibility in the Contact Group on Piracy off the Coast of Somalia
for Working Group One, whose focus is on regional capacity
development and military engagement.1044 On 2nd January 2015, one of
the Royal Navy's most advanced warships, “HMS Dauntless”
embarked on a five month counter piracy operation. It left Portsmouth
Naval Base on a routine deployment to the Gulf of Aden, where it will
be deterring piracy and keeping the sea lanes open for free and safe
passage of merchant vessels.1045
6.11.3 Russia
Russian warships have successfully escorted hundreds of
commercial vessels from various countries through pirate infested
waters off the Somali coast since 2008, when Russia joined the
international anti piracy mission in the region. Task forces from the
Russian Navy, usually led by Udaloy class destroyers, operate in the
area on a rotating basis. Russia has recently asked France to allow the
deployment of two Ilyushin-38 Naval reconnaissance planes at a French
base in Djibouti to facilitate its anti piracy missions in the Gulf of
Aden. Russia has also called for the creation of a special U.N. juridical
body to try pirates captured during anti piracy operations off the Somali
coast.1046 On 5th September 2014, a Russian Baltic fleet escort ship,
“The Yaroslav Mudryi”, arrived in the Gulf of Aden as part of an
international effort to protect commercial ships from pirates operating
in the region. It has become Russia’s second escort ship after “The
Neustrashymyi” to carry out an anti piracy cruise in the Gulf of
Aden.1047 On 2nd January 2015, Admiral Viktor Chirkov, Commander in
Chief of the Russian Navy stated that warships and support vessels
1043 Available at: https://www.gov.uk/government/policies/preventing-and-reducing-

piracy-off-the-coast-of-somalia (Visited on January 6, 2015).
1044 Ibid.
1045 Available at: http://rt.com/uk/219379-warship-navy-piracy-mission/ (Visited on
January 6, 2015).
1046 Available at: http://en.ria.ru/russia/20121119/177592396.html (Visited on
January 5, 2015).
1047 Available at: http://itar-tass.com/en/russia/748307 (Visited on January 5, 2015).
296
of Russian Navy will continue to perform tasks to prevent pirate attacks

on civilian ships in the Gulf of Aden and the Horn of Africa. He further
mentioned that 4-5 campaigns of Russia's Northern and Pacific fleet
warships will be organized during this year in areas of increased pirate
activity off the African east coast.1048 The scheme of Russian warships’
actions in the Gulf of Aden will remain unchanged and will include the
organization of the escort of civil ships convoys.1049
6.11.4 China
As a leading seaborne trade country, China has a fundamental
interest in the suppression of piracy. Moreover, as a permanent member
of the UN Security Council, China is also obliged to contribute towards
the suppression of piracy for the maintenance of international peace
and security. In the recent years, China has taken numerous measures
for the suppression of piracy.1050 Overseas naval escort operations have
become a prominent way for the international community to combat
piracy. China has also despatched naval escorts to the Gulf of Aden and
waters off the coast of Somalia in response to the calls of the Security
Council. China’s actions have been prompted by the deterioration of
the safety situation and the rise of piratical activities against Chinese
ships and crew members in these two areas.1051
China’s overseas naval escort operations started in 2008. On the
approval of the Central Military Commission of the Communist Party
of China, China’s first naval fleet, comprising of three warships and
around 800 crew members, was despatched from the Hainan Province
to the Gulf of Aden on 26th December 2008. This expedition was seen
as the Chinese Navy’s first expedition on the high seas since the
fifteenth century. Since then, China has despatched ten naval escort
fleets to the Gulf of Aden and waters off the coast of Somalia. China’s
operations are limited to safeguarding maritime security in the Gulf of
Aden and waters off the coast of Somalia. The Chinese Defence
Ministry has further elaborated that “the purpose of Chinese operations
1048 Available at: http://www.strategic-culture.org/news/2015/01/02/russian-navy-

to- continue-anti-piracy-mission-off-coast-of-somalia.html (Visited on January 6,
2015).
1049 Ibid.
1050 Chi Manjiao, “A Note on China’s Legal and Operational Responses to
International Piracy” 44 ODIL 113 (2013).
1051 Id., at 115.
297
is to escort and save the ships that are attacked or released by pirates
and to conduct intelligence communications, mutual visits of
commanders, joint escorts, joint military rehearsals and onboard
inspections”.1052 China’s overseas naval escort operations not only help
protect its own maritime interests, but also contribute to the restoration
and maintenance of peace and security in the two piracy plagued
regions.1053
On 11th December 2014, in a rare bilateral exercise, USA and China
conducted anti piracy training off the pirate prone Gulf of Aden. The
guided missile destroyer “USS Sterett” joined two People’s Liberation
Army Navy ships for the exercises that included visit, board, search,
and seizure (VBSS) exercises, communication exchanges, live fire
drills and various other aspects of naval operations. Approximately 700
naval personnel from the US and China participated in the exercise. It
represented a united front towards counter piracy operations shared by
both nations. In September 2014 China’s anti piracy force has
also conducted similar drills with the Iranian Navy.1054
6.11.5 Japan
Japan remains concerned about the continuing threat posed by piracy
off the coast of Somalia and in the Gulf of Aden. Although a marked
reduction has been seen in the number of attacks and hijackings since
2012, Japan observes that the underlying causes of piracy remain in
place, and the current decline is inherently reversible. Japan has taken a
number of concrete actions to address the issue of piracy off the coast
of Somalia and in the Gulf of Aden in cooperation with international
partners. Japan is committed to continuing with its effort to ensure
maritime security and to work together with international partners in
order to improve stability in Somalia and build law enforcement
capacity in its neighbouring countries.1055 In March 2009, venturing far
from its shores on its first maritime policing action, the Japanese
Maritime Self Defence Force (JMSDF) deployed two vessels in support
of counter piracy operations. Initially, its role was limited to self
1052 Ibid.
1053 Ibid.
1054 Available at: http://news.usni.org/2014/12/12/u-s-china-conduct-anti-piracy-
exercise (Visited on January 5, 2015).
1055 Available at: http://www.mofa.go.jp/policy/piracy/ja_somalia_1210.html
298
defence. However, the JMSDF soon realized that in order to fulfill its
mission, it needed to engage those pirates also who threaten vessels
other than those under the Japanese flag.1056 Therefore, a change in
legislation was sought and implemented, thus departing from the
JMSDF’s sole mission of self defence. In June 2009, Japan expanded its
efforts by deploying maritime patrol aircraft in support of the anti
piracy mission.1057
Japanese vessels have escorted 3481 ships in 572 escort missions till
date, while Japanese aircraft have completed 1230 mission flights till
date. Japanese Navy is also participating in CTF 151 and conducting
zone defence activities since December 2013, while continuing its
escort operations. Japan actively participates in discussions in the
Contact Group on Piracy off the Coast of Somalia and its Working
Groups. Japan is committed to working in cooperation with other
participants in the CGPCS. Japan chaired its fourth meeting in
September 2009. Japan has contributed 14.6 million US Dollars to the
IMO Djibouti Code Trust Fund (a Japan initiated Multi donor trust
fund) for capacity building in Somalia and its neighbouring countries,
and 4.5 million US Dollars to the Trust Fund to support initiative of
States countering pirates off the coast of Somalia for the purpose of
prosecution of suspected pirates. Japan also provides technical
assistance to Djibouti Coast Guard for improvement of its capacities for
maritime security and for conducting training for coast guards of other
countries in its region. In 2009, Japan enacted the Act of Punishment
and Countermeasures against Piracy, which criminalizes acts of piracy
and enables Japan’s naval vessels to protect any ship from pirates
regardless of her flag. The law came into effect on 24 July 2009. In
March 2011, four apprehended Somali pirates were transferred to Japan
for prosecution. In July 2014, the Japanese Cabinet decided to extend
the mandate of the counter piracy operation till 23rd July 2015.1058
6.11.6 India
In order to protect the Indian ships and Indian citizens employed in
seafaring duties, the Indian Navy commenced anti piracy patrols in the
Gulf of Aden from 23rd October 2008 onwards. In addition to escorting
Indian flagged ships, ships of other countries have also been escorted
1056 Supra Note 2, at 105.

1057 Ibid.
1058 Supra note 242.
299
by the Indian Navy.1059 Merchant ships are currently being escorted

along the entire length of the 490 nautical miles long and 20 nautical
miles wide Internationally Recommended Transit Corridor (IRTC) that
has been promulgated for use by all merchant vessels. More than 1200
ships have been escorted by the Indian Naval ships in the Gulf of Aden
since October 2008. During their deployment for anti piracy operations,
the Indian Naval Ships have prevented at least 40 piracy attempts on
merchant vessels. Recently, Somalia had added India to its list of
countries, which includes the USA and France, who are permitted to
enter its territorial waters in an effort to check piracy.1060 In order to
make special provisions for the suppression of piracy and to provide for
punishment for the offence of piracy, The Piracy Bill, 2012, was
introduced in the Lok Sabha (the upper house of Parliament) by the
Minister of External Affairs, S.M. Krishna, on 21st March 2012.
Unfortunately, the Bill lapsed due to the dissolution of the fifteenth Lok
Sabha in May 2014.1061 The definition of piracy under this Bill is the
same as under Article 101 of the United Nations Convention on the
Law of the Sea, 1982. In addition to it, any act which is deemed to be
piratical under customary International Law is also included within the
definition of piracy.1062
1059 Available at: http://indiannavy.nic.in/operations/anti-piracy-operations (Visited

1060 Ibid.
1061 Available at: http://www.prsindia.org/billtrack/the-piracy-bill-2012-2298/
1062 Available at:
http://www.prsindia.org/uploads/media/Piracy/piracy%20bill%20text%20_%202
012. pdf (Visited on January 6, 2015). Section 2(e) of the Piracy Bill, 2012.
300
CHAPTER – VII:
PIRACY AT SEA (LEGAL ISSUES
AND CHALLENGES):
“Our great oceans, rivers, lakes, harbours and ports provide not
only vital resources for us to live, but an entire maritime way of life
for so many people. The least we can do is protect them and the way
of life they provide for so many people”.
Candice S. Miller 1063

Notwithstanding a sharp decline in Somali piracy since 2012,
maritime piracy continues to be an ongoing global threat to
international trade, navigation and maritime and regional security.
Efforts to combat this menace include concerted action by several
international organizations, including the United Nations (UN), North
Atlantic Treaty Organization (NATO), European Union (EU), African
Union (AU), etc. More than forty countries are also involved in
undertaking operations on their own or through various coalitions. In
2009, the Contact Group on Piracy off the Coast of Somalia (CGPCS)
was established to co ordinate several international organizations and
countries engaged in preventing piracy.1064 Many other national,
international and regional initiatives such as the Djibouti Code of
Conduct and the Indian Ocean Commission Anti Piracy Partnership
Program also complement the efforts to combat piracy. The shipping
industry has also taken preventive steps by complying with the Best
Management Practices for Protection Against Somalia Based Piracy
1063 The US Representative for Michigan's tenth Congressional District, serving

since 2003. She is a member of the Republican Party. Available at:
http://www.brainyquote.com/quotes/keywords/maritime.html (Visited on
November 8, 2014).
1064 Ved. P. Nanda and Jonathan Bellish, “Moving From Crisis Management To A
(BMP). The shipping industry is actively engaged in combating piracy

with the help of private maritime security companies (PMSC’s).1065 All
these efforts have resulted in an effective response to fight piracy at
sea. However, the recent report of the World Bank published in 2013
aptly warns that “the long term solution to piracy off the horn of Africa
cannot be dissociated from the construction of a Somali State that is
viable at both central and local levels”.1066 In this chapter, various legal
issues and challenges faced by the international organizations and
various countries while combating piracy have been discussed.
7.2 CRIMINAL JURISDICTION AT SEA

Traditionally, the flag State has exclusive criminal jurisdiction over
individuals aboard its ships. According to eminent International Law
jurist Cornelius Van Bynkershoek, “A ship is considered to be a
floating island of the State whose flag she flies”. The principle of
exclusive flag State jurisdiction is related to the doctrine of Mare
Liberum, more commonly known as the “Freedom of the Seas”. The
doctrine refers to the equal rights of all States to make beneficial use of
the world’s oceans beyond their territorial sea.1067 Under the United
Nations Convention on The Law of the Sea (UNCLOS), 1982, only the
flag State or the national State of the alleged perpetrator may institute
penal or disciplinary proceedings regarding any incident of navigation
on the high seas, and only the flag State may detain a ship for the
purposes of a criminal investigation.1068 Even in the territorial waters of
1065 Id., at 45.

1066 Ibid.
1067 Id., at 74.
1068 Available at:
(Visited on August 4, 2015). Article 97(1) of the UNCLOS, 1982, provides that in
the event of a collision or any other incident of navigation concerning a ship on
the high seas, involving the penal or disciplinary responsibility of the master or
of any other person in the service of the ship, no penal or disciplinary
proceedings may be instituted against such person except before the judicial or
administrative authorities either of the flag State or of the State of which such
person is a national. Article 97(2) provides that in disciplinary matters, the State
which has issued a master's certificate or a certificate of competence or licence
shall alone be competent, after due legal process, to pronounce the withdrawal of
such certificates, even if the holder is not a national of the State which issued
them. Article 97(3) provides that no arrest or detention of the ship, even as a
302
another State, the flag State’s criminal jurisdiction can only be

undermined by the coastal State if the effects of the crime extend to the
coastal State, the crime disturbs the peace of the coastal State or its
territorial sea, the flag State requests the assistance of the coastal State,
or the coastal State suspects drug trafficking.1069 However, despite the
primacy afforded to criminal jurisdiction on the high seas based on the
flag State and the nationality of the perpetrator, States have
successfully asserted criminal jurisdiction on the high seas through
other jurisdictional theories. For example, in United States vs. Neil,1070
the United States Court of Appeal for the Ninth Circuit held that the
United States had jurisdiction under the passive personality principle 1071
for a sexual assault committed by a citizen of Saint Vincent and the
Grenadines against a 12 years old American national girl aboard a
Panamanian flagged ship.1072 In R vs. Anderson,1073 the Court of
Criminal Appeal in the United Kingdom held that an American national
who had committed manslaughter on board a British vessel in French
internal waters was subject to the jurisdiction of the British Courts,
even though he was also within the sovereignty of French justice by
reason of territorial jurisdiction and American justice by reason of his
measure of investigation, shall be ordered by any authorities other than those of

the flag State.
1069 Ibid. Article 27(1) of the UNCLOS, 1982, provides that the criminal jurisdiction
of the coastal State should not be exercised on board a foreign ship passing
through the territorial sea to arrest any person or to conduct any investigation in
connection with any crime committed on board the ship during its passage, save
only in the following cases: (a) if the consequences of the crime extend to the
coastal State; (b) if the crime is of a kind to disturb the peace of the country or
the good order of the territorial sea; (c) if the assistance of the local authorities
has been requested by the master of the ship or by a diplomatic agent or consular
officer of the flag State; or (d) if such measures are necessary for the suppression
of illicit traffic in narcotic drugs or psychotropic substances.
1070 312 F.3d 419, 423 (9th Cir. 2002).
1071 The passive personality principle allows states, in limited cases, to claim
jurisdiction to try a foreign national for offences committed abroad that affect its
own citizens. Available at:
http://www.britannica.com/EBchecked/topic/930694/passive- personality-
principle (Visited on November 19, 2014).
1073 1 Cox’s Criminal Cases 198 (1868).
303
nationality. Therefore, it was held that he could be correctly convicted

under English criminal law.1074
Thus, State practice suggests that States can successfully assert
jurisdiction over violent crimes committed on the high seas through the
application of the territorial principle (applying the law of the flag
State), the nationality principle and the passive personality principle.
These options provide States broad latitude to pursue acts of violence
committed at sea.1075
7.3 UNIVERSAL JURISDICTION OVER PIRATES

Some crimes are considered so heinous in nature that they are
regarded as crimes against the whole mankind. Every State has
legitimate interest in the repression of such crimes. This is the
traditional explanation of universal jurisdiction.1076 Universal
jurisdiction is an extraordinary and distinctive principle of international
law. It allows nations to punish the perpetrators of the most heinous
international crimes. The doctrine of universal jurisdiction holds that a
nation can prosecute offences to which it may have no connection at
all. The jurisdiction is based solely on the extraordinary heinousness of
the alleged conduct. It is the ability of the municipal courts of a country
to try offenders for international crimes committed outside the State’s
regular jurisdiction, to convict defendants who may have had no
connection with the prosecuting State prior to trial, and to bring
accountability and justice to the remote corners of the world where they
are sorely lacking.1077
Universal jurisdiction allows States or international organizations to
claim criminal jurisdiction over an accused person regardless of where
the alleged crime was committed and regardless of the accused’s
nationality, country of residence, or any other relation with the
prosecuting entity. Crimes prosecuted under universal jurisdiction are
1074 Malcolm Nathan Shaw, International Law 557 (Cambridge University Press,
New Delhi, 2008).
Jurisdiction of States” in Bimal N. Patel and Hitesh Thakkar (eds.), Maritime
Security and Piracy (Global Issues, Challenges and Solutions) 103 (2012).
1077 Prajwala Lagali and Smriti Verma, “Maritime Piracy as a Subject of Universal
Jurisdiction: A Boon or a Bane?” in Bimal N. Patel and Hitesh Thakkar (eds.)
Maritime Security and Piracy (Global Issues, Challenges and Solutions) 147
(2012).
304
considered crimes against all countries, too serious to

tolerate jurisdictional arbitrage.1078 The concept of universal jurisdiction
is therefore closely linked to the idea that some international norms
are erga omnes, or owed to the entire world community, as well as the
concept of jus cogens, that certain international law obligations are
binding on all States.1079
7.3.1 Universal Jurisdiction Under Customary International Law

Piracy is among the most ancient of crimes, and the first crime to
have been subject to universal jurisdiction. Typically, piracy involves
acts of robbery and violence committed at sea, and pirates have been
traditionally considered as hostis humani generis (the enemy of whole
mankind) and subject to universal jurisdiction since the seventeenth
century. However, there is widespread agreement that the term hostis
humani generis was used by the Roman philosopher and jurist, Marcus
Tullius Cicero to describe pirates as the Roman Empire knew them.
Throughout history, every State has had jurisdiction over criminal acts
committed on the high seas by pirates, regardless of whether the pirates
or their victims were nationals of the prosecuting State or whether the
offence had a connection to the prosecuting State. Therefore, piracy has
historically been subject to universal jurisdiction as a matter of
customary international law.1080 The legal response of various countries
over the past three centuries to the challenge of piracy is exemplified in
Sir Charles Hedges’ charge to the grand jury of the Admiralty High
Court in the case of Rex vs. Joseph Dawson,1081 wherein he opined that:
1078 Available at: http://en.wikipedia.org/wiki/Universal_jurisdiction (Visited on

December 13, 2014).
1079 Ibid.
1081 (1696) 13 How. St. Tr. 451, 455. In this case, the prisoners were indicted for
feloniously and piratically taking and carrying away from persons unknown a
certain ship called The Gunsway, upon the high seas, ten leagues from the Cape
St. Johns near Surat in the East Indies. The Court was comprised of Sir Charles
Hedges, then judge in the High Court of Admiralty, Lord Chief Justice Holt,
Lord Chief Justice Treby, Lord Chief Baron Ward and a number of other judges.
Sir Charles Hedges gave the charge to the grand jury. Joseph Dawson’s trial took
place in the year 1696, but the historical record shows that the developing theory
of undoubted jurisdiction and power, in concurrency with other princes and
States, to punish Piracy wherever it occurred (and not only in British waters) was
well underway.
305
“The King of England hath not only an empire and sovereignty over
the British seas, but also an undoubted jurisdiction and power, in
concurrency with other princes and States, for the punishment of all
piracies and robberies at sea, in the most remote parts of the world; so
that if any person whatsoever, native or foreigner, Christian or Infidel,
Turk or Pagan, with whose country we have no war, with whom we
hold trade and correspondence, and are in amity, shall be robbed or
spoiled in the Narrow Seas, the Mediterranean, Atlantic, Southern, or
any other seas, or the branches thereof, either on this or the other side
of the line, it is piracy within the limits of your enquiry, and the
cognizance of this court”.1082
For many years, piracy was viewed as the only crime having
universal jurisdiction. Similar assertions concerning slave trading,
genocide, war crimes and crimes against humanity came much later.
Judge Moore of the Permanent Court of International Justice, in the SS
Lotus Case (France vs. Turkey),1083 observed that:
“Piracy by law of nations, in its jurisdictional aspects, is sui generis
(unique in its characteristics). Though statutes may provide for its
punishment, it is an offence against the law of nations; and as the scene
of the pirate’s operations is the high seas, which it is not the right or
duty of any nation to police, he is denied the protection of the flag
which he may carry, and is treated as an outlaw, as the enemy of all
mankind, hostis humani generis, whom any nation may in the interest of

Addressing This Enduring Problem” 36 TMLJ 73 (2011).
1083 1927 PCIJ (Ser. A) No. 20. Decided on 7th September 1927.
The Lotus Case concerns a criminal trial which was the result of the 2nd August
1926 collision between the SS Lotus, a French steamship (or steamer), and the
SS Boz- Kourt, a Turkish steamer, in a region just north of Mytilene (Greece). As
a result of the accident, eight Turkish nationals aboard the Boz-Kourt drowned
when the vessel was torn apart by the Lotus. On 7th September 1927, the case
was presented before the Permanent Court of International Justice, the judicial
branch of the League of Nations, the predecessor of the United Nations. The
issue at stake was Turkey's jurisdiction to try Monsieur Demons, the French
officer on watch duty at the time of the collision. Since the collision occurred on
the high seas, France claimed that the state whose flag the vessel flew had
exclusive jurisdiction over the matter. France proffered case law, through which
it attempted to show state practice in support of its position. However, those
cases involved ships that flew the flag of the flag state and were thus easily
distinguishable. The Court, therefore, rejected France's position stating that there
was no rule to that effect in international law.
306
all capture and punish. Nations have shown the strongest repugnance
to extending the scope of this offence, because it carried with it not only
the principle of universal jurisdiction but also the right of visit and
search on the high seas in time of peace”.1084
Judge Moore based his opinion on the long standing practice of
States. The root source of the universality principle does indeed appear
to be the customary international law with respect to piracy.1085
7.3.2 Universal Jurisdiction Under Modern International Law

Under Modern International Law, Universal Jurisdiction over the
crime of piracy is firmly established by the Geneva Convention on the
High Seas, 1958, and the United Nations Convention on the Law of the
Sea, 1982. Both these conventions contain identical expressions of
universal jurisdiction over piracy.1086 To the degree these conventions
refer to all States worldwide and not simply to States that are parties to
them, the language effectively recognizes the existence of universal
jurisdiction over piracy.1087 Further, the right to prosecute the
perpetrators of piracy is available to all States under the international
law concept of jus cogens.1088
Universal jurisdiction over piracy developed based primarily upon
two rationales, i.e. the widespread effect of piratical attacks on every

1085 Ibid.
1086 Available at:
(Visited on August 4, 2015). Article 107 of the United Nations Convention on
Law of the Sea, 1982, provides that on the high seas, or in any other place
outside the jurisdiction of any State, every State may seize a pirate ship or
aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and
arrest the persons and seize the property on board. The courts of the State which
carried out the seizure may decide upon the penalties to be imposed, and may
also determine the action to be taken with regard to the ships, aircraft or
property, subject to the rights of third parties acting in good faith. Article 19 of
the Geneva Convention on the High Seas, 1958, also makes an identical
provision. Article 107 provides that a seizure on account of piracy may be carried
out only by warships or military aircraft, or other ships or aircraft clearly marked
and identifiable as being on government service authorized to that effect. Article
21 of the Geneva Convention on the High Seas, 1958, also makes a similar
provision.
307
nation; and the grave nature of the crime. The nature of pirates as
highly mobile criminals who are able to operate across borders and
strategically attack vessels navigating through particularly vulnerable
areas further intensifies piracy’s widespread impact. Piracy not only
poses a grave risk to the safety and security of the crews and the vessels
involved, but also to the stability of international commerce in the high
traffic areas that pirates strategically target. It follows that all States
have an inherent interest in eliminating piracy even if the pirates have
not attacked their own vessels, either because they may be a direct
victim in the future or they may suffer the economic consequences of
such attacks. Based on this foundation of international impact, it was
reasoned that all States could exercise universal jurisdiction as a means
to defeat piracy. Another justification for exercising universal
jurisdiction over piracy is based on the serious and heinous nature of
the crime. Under this rationale, States act against piracy because of the
universal need to hold those persons accountable who engage in such
heinous acts. Thus, States exercise universal jurisdiction over pirates in
the interests of the international community as a whole.1089
7.3.3 Problems in Exercising Universal Jurisdiction

The power to apprehend and prosecute pirates, which has been
granted to all States by international law is in the form of a
responsibility which can be fulfilled upon the exercise of this power by
a State. However, despite the codification of the doctrine of universal
jurisdiction as applied to piracy, not many States are taking up the
responsibility of exercising universal jurisdiction to prosecute
pirates.1090 There are many reasons for the reluctance of States to
exercise universal jurisdiction to prosecute pirates, which are
I. As recognized by the United Nations Charter, all States enjoy
sovereign equality, i.e., all States are equal members of the
international community of States and are to be treated accordingly.1091
Universal jurisdiction can have dangerous consequences in the absence
1089 Kenneth C. Randall, “Universal Jurisdiction Under International Law” 66 TLR

791 (1988).
1091 Available at: http://www.un.org/en/documents/charter/chapter1.shtml (Visited
on August 4, 2015). Article 2(1) of the UN Charter provides that “the
organization is based on the principle of the sovereign equality of its members”.
308
of generally accepted limitations on its scope. Unlike all other forms of

international jurisdiction, the universal kind is not premised on notions
of sovereignty or State consent. Rather it is intended to override them.
An assertion of universal jurisdiction, the scope of which is not defined,
can create conflict and possible hostilities among countries because it
can be construed as an encroachment on the sovereign authority of the
country that has traditional jurisdiction over the offence.1092
II. Most of the western countries are reluctant to prosecute captured
pirates in their own courts because of apprehensions about costs,
logistics, asylum claims and related human rights and due process
issues.1093
III. Another reason propounded towards explaining the inaction of
States in exercising universal jurisdiction over pirates proposes that
judging the citizens of another State may significantly impede a State’s
involvement in international peace initiatives with that State.1094
IV. Another major concern surrounding the doctrine of universal
jurisdiction is the political consequences of prosecution under this
doctrine. States fear that the justice dispensed by the powerful will
mean injustice to the weak and that prosecutions will be improperly
motivated. This doctrine allows States to take unilateral action against
the citizens of other States. Without a counter balance of diverse
political views, criminal prosecution by a single State can easily be or
perceived to be a pretext. Such a possibility undermines the entire
political justice system and destroys the possibility of international
cooperation in the protection of human rights values. Even if the State
that is asserting universal jurisdiction is motivated by the most altruistic
reasons, the simple assertion of this doctrine opens up a Pandora’s Box
of international uncertainty and provides a precedent for less
scrupulous States to reply upon in trying to achieve their own political
goals.1095
1092 Nicolaos Strapatsas, “Universal Jurisdiction and the International Criminal

Court” 29 MLJ 5 (2002).
1093 Beck Pemberton, “Pirate Jurisdiction: Fact, Fiction and Fragmentation in
International Law” One Earth Future Foundation Working Paper 1 (2011).
1095 Michael P. Scharf and Thomas C. Fischer, “Universal Jurisdiction: Myths,
Realities and Prospects” 35 NELR 227 (2001).
309
7.4 PROSECUTION OF PIRATES

The international community has launched several measures to
suppress piracy. Prosecuting those suspected for being involved in
piratical activities is one of the measures to combat piracy. There exists
sufficient authority under international law for nations to exercise
criminal jurisdiction over pirates captured on the high seas or any other
place which is outside the jurisdiction of any State (terra nullius).
However, many countries do not wish to exercise such criminal
jurisdiction. In fact, many national courts have been reluctant to take
piracy cases from the high seas or outside of their territorial waters.1096
There are some important issues involved in prosecuting pirates, which
include the following:
I. Law applicable and the practical appreciation of the exercise of
universal jurisdiction;
II. The nature of evidence (its collection, preservation and analysis);
III. Global politics and the wider impact of globalization;
IV. The doctrine of precedent and the impact on sentencing; and
V. Human rights, due process and Constitutional issues.1097
Apart from possible anomalies between the laws of several nations
which may be involved in the capture, detention and trial of suspected
pirates, factors that may in a particular case make a successful
prosecution less likely relate to the taking of evidence, the handling of
exhibits, holding suspects in appropriate conditions until they can be
handed over for prosecution, avoiding situations that will allow
suspects to allege a breach of their human rights, and securing the
attendance of witnesses at possibly more than one hearing. Given these
potential difficulties and the fear of many countries whose warships
have foiled pirate attacks, that suspects brought before their own courts
may acquire the right to asylum if the prosecution loses its case, or
even if they are convicted but claim statelessness, it may be difficult to
return them back home after they have served their sentences, it is
perhaps not surprising that many suspects are released after being
captured by the Navy or Coast Guards.1098 The practice of dumping
pirates on African countries for prosecution reflects the wealthier

1097 Duncan Gaswaga, “Prosecution of Pirates: A Judge’s Perspective” in Bimal N.
Patel and Hitesh Thakkar (eds.) Maritime Security and Piracy (Global Issues,
Challenges and Solutions) 9 (2012).
1098 Id., at 10.
310
countries’ extreme reluctance to try pirates in their own Courts.1099

Nevertheless, some countries have taken commendable steps to ensure
the prosecution of pirates, which is evident from the following
examples:
7.4.1 The Seychelles

In 2009, there was an exchange of letters between the European
Union and the Republic of Seychelles concerning the transfer of
suspected pirates for prosecution. A memorandum of understanding
(MoU) was entered between the European Union and the Republic of
Seychelles under which Seychelles may authorize the EU NAVFOR
(European Union Naval Force) to transfer suspected pirates and armed
robbers captured in the course of its operations in the exclusive
economic zone, territorial sea, archipelagic waters and internal waters
of the Republic of Seychelles. Under some circumstances, this
authorization extends to the high seas at the discretion of the Republic
of Seychelles and automatically extends outside the aforementioned
territorial limits to protect Seychelles flagged vessels and citizens of
Seychelles on non Seychelles flagged vessels.1100 The MoU further
provides that once the Republic of Seychelles authorizes the transfer of
suspected pirates, the European Union agrees to provide full financial,
material, logistical, infrastructural and human resource assistance for
the detention, incarceration, maintenance, investigation, prosecution,
trial and repatriation of the convicted or suspected pirates or armed
robbers. The MoU also guarantees certain procedural rights for the
accused. However, the use of death penalty is not banned. In support of
this MoU, the United Nations, through the United Nations Office on
Drugs and Crime (UNODC), has created regional courts in Seychelles
to try suspected pirates.1101 It has assisted Seychelles in prosecuting
pirates by improving court facilities as well as by providing
interpreters, defence services, prosecutorial support, legal services,
1099 Ibid.
1100 Supra note 20, at 110. Also available at:
http://www.consilium.europa.eu/policies/agreements/search-the-agreements
database?command=details&lang=en&aid=2009039&doclang=en (Visited on
December 16, 2014).
1101 Id., at 111.
311
technical equipment and assistance in implementing a basic legal

framework for piracy and police support.1102
Section 65 of the Seychelles Penal Code, 1955, has incorporated
some provisions of international law instruments and principles to the
extent of allowing assumption of jurisdiction by the Seychelles Courts
without necessarily limiting it to the arresting State, irrespective of
whether the offence of piracy is committed within or outside the
territory of Seychelles.1103 Some piracy cases decided by the Seychelles
Courts are mentioned hereunder:
1102 Ibid.
1103 Supra note 35 at 11. Section 65 of the Seychelles Penal Code, 1955, reads as
follows:
(١) Any person who commits any act of piracy within Seychelles or elsewhere is
guilty of an offence and liable to imprisonment for 30 years and a fine of one
million Rupees.
(٢) Notwithstanding the provisions of Section 6 and any other written law, the
Courts of Seychelles shall have jurisdiction to try an offence of piracy whether
the offence is committed within the territory of Seychelles or outside the territory
of Seychelles.
(٣) Any person who attempts or conspires to commit, or incites, aids, abets, counsels
or procures the commission of an offence contrary to Section 65(1), commits an
offence and shall be liable to imprisonment for 30 years and a fine of one million
Rupees.
(٤) For the purposes of this Section, piracy includes:
(a) Any illegal act of violence or detention, or any act of depredation, committed for
private ends by the crew or passengers of a private ship or a private aircraft and
directed: (i) on the high seas, against another ship or aircraft, or against persons
or property on board such a ship or aircraft; (ii) against a ship, an aircraft, a
person or property in a place outside the jurisdiction of any State; or
(b) Any act of voluntary participation in the operation of a ship or an aircraft with
knowledge of facts making it a pirate ship or a pirate aircraft; or
(c) Any act described in paragraph (a) or (b) which, except for the fact that it was
committed within a maritime zone of Seychelles, would have been an act of
piracy under either of those paragraphs.
(٥) A ship or aircraft shall be considered a pirate ship or a pirate aircraft if:
(a) It has been used to commit any of the acts referred to in sub section (4) and
remains under the control of persons who committed those acts; or
(b) It is intended by the person in dominant control of it to be used for the purpose of
committing any of the acts referred to in sub section (4).
(٦) A ship or aircraft may retain its nationality although it has become a pirate ship
or a pirate aircraft. The retention or loss of nationality shall be determined by the
law of the State from which such nationality was derived.
312
In The Republic of Seychelles vs. Mohamed Ahmed Dahir and Ten

Others,1104 eleven Somali nationals were charged with seven different
offences including piracy. Five of them related to terrorism under the
Prevention of Terrorism Act, 2004, which could not be proved.
However, the accused were convicted on the other two charges
stemming from piracy, i.e., committing piracy and aiding and abetting
piracy contrary to Sections 65 and 231105 of the Seychelles Penal Code.
On the issue of jurisdiction, Justice Duncan Gaswaga held that “other
than as regards resources, exclusive economic zones are counted as
high seas, which translates into the extension of the court’s jurisdiction
accordingly”. The EEZ has been treated as a part of the high seas for
the purpose of combating the crime of piracy.1106 Each one of the
convicts was sentenced to 10 years of imprisonment by the Supreme
Court of Seychelles. The prison authorities were directed to make
necessary arrangements to detain in the right place each one of the
(٧) Members of the Police and Defence Forces of Seychelles shall on the high seas,
or may in any other place outside the jurisdiction of any State, seize a pirate ship
or a pirate aircraft, or a ship or an aircraft taken by piracy and in the control of
pirates, and arrest the persons and seize the property on board. The Seychelles
Court shall hear and determine the case against such persons and order the action
to be taken as regards the ships, aircraft or property seized, accordingly to the
law.
1104 Criminal Side No. 51 of 2009 (Supreme Court of Seychelles). Having been
detected and video recorded on 5th December 2009 by a surveillance aircraft at
the high seas, the accused had on 6th December 2009, proceeded to attack and
fire at a Coast Guard patrol vessel named “The Topaz”, which they mistook for a
passenger or cargo ship, within the exclusive economic zone of Seychelles.
Attorney General Mr. R. Govinden, appearing for the Republic of Seychelles,
argued that by their act, the accused intended to compel the Government of the
Republic of Seychelles to limit or stop patrolling, surveilling and monitoring its
exclusive economic zone. All the accused denied the charges and the prosecution
led the evidence of sixteen witnesses to prove the case beyond reasonable doubt.
1105 Section 23 of the Penal Code of Seychelles provides that “when two or more
persons form a common intention to prosecute an unlawful purpose in
conjunction with one another, and in the prosecution of such purpose an offence
is committed of such nature that its commission was a probable consequence of
the prosecution of such purpose, each of them is deemed to have committed the
offence”.
http://www.unicri.it/topics/piracy/database/Seychelles_2010_Crim_No_51_(2009
)_J udgement.pdf (Visited on December 17, 2014).
313
convicts according to their ages as guided by the Constitution of

Seychelles.1107
In The Republic of Seychelles vs. Abdi Ali and Ten Others,1108 eleven
Somali nationals were charged for committing piracy contrary to
Sections 65 and 377,1109 read with Section 23 of the Penal Code. All the
accused chose to exercise their right to remain silent.1110 After analysing
the versions of prosecution and defence, Justice M. Burhan convicted
all of them on a single count of attempting to commit piracy contrary to
Sections 65 and 377, read with Section 23 of the Penal Code.1111 Each
one of them was sentenced to 6 years in prison by the Supreme Court of
Seychelles.1112
In The Republic of Seychelles vs. Mohamed Aweys Sayid and Eight
Others,1113 nine Somali nationals were charged on three counts of
1107 Available at:

)_ Sentence.pdf (Visited on December 17, 2014).
1108 Criminal Side No. 14 of 2010 (Supreme Court of Seychelles). On 5th March
2010, “Intertuna II”, a Spanish fishing vessel registered in the Seychelles was
fishing in the high seas with two of its smaller boats deployed at sea. Riding on
two skiffs, which were backed by a mother ship, the accused attempted to seize
the vessel. The security team onboard the vessel repulsed them twice by firing at
their skiff. Meanwhile, Josu Arrueispizua, the Captain of the vessel called for
help on the radio. As a result, smoke bombs were dropped from an aircraft onto
the two skiffs and the mother ship. Helicopters also arrived and encircled the
three pirate vessels, took photographs of the accused before disarming and
arresting them.
1109 Section 377 of the Penal Code of Seychelles defines the term “attempt”.
1110 Article 19(2)(h) of the Constitution of Seychelles provides that a person charged
with an offence shall not have any adverse inference drawn from the exercise of
the right to silence either during the course of the investigation or at the trial.
1112 Available at:
1113 Criminal Side No. 19 of 2010 (Supreme Court of Seychelles). The particulars of
the first count were that the accused on 27th March 2010, acting with common
intention on the high seas, committed an act of piracy by committing an illegal
act of violence or detention or an act of depredation for private ends against
persons on board another ship by unlawfully taking control of the ship while
armed with firearms. The particulars of the second count were that the accused
314
committing acts of piracy on the high seas contrary to Sections 65 and

23 of the Seychelles Penal Code. After analysing the versions of
prosecution and defence, Justice C.G. Dodin convicted all of them on
all the three counts.1114 All of them were sentenced to 11 years of
imprisonment on the first count and the second count (total of 22
years), with an order that both these terms of imprisonment shall run
consecutively. However, the sentence of 10 years imposed on the third
count was to run concurrently with the sentence of 22 years imposed for
the first and the second counts.1115
In The Republic of Seychelles vs. Nur Mohamed Aden and Nine
Others,1116 ten Somali nationals were charged on two counts of
on 26th March 2010, acting with common intention in the Exclusive Economic
Zone of Seychelles, committed an act of piracy by committing an illegal act of
violence or detention or an act of depredation for private ends against persons on
board another ship named “The Galate”, by unlawfully taking control of the ship
while armed with firearms. The particulars of the third count were that the
accused on 29th March 2010, acting with common intention on the high seas,
committed an act of piracy by committing an illegal act of violence or detention
or an act of depredation for private ends against persons on board another ship
named “The Topaz”, by unlawfully discharging firearms directed at that ship.
All the accused denied the charges and the prosecution led the evidence of
twelve witnesses to prove the case beyond reasonable doubt.
1115 Available at:
the first count were that between 15th November 2010 and 20th November 2010,
the accused, acting with common intention on the high seas, committed an act of
piracy by committing an illegal act of violence or detention or an act of
depredation for private ends against persons on board another ship named “The
Faith”, operated by seven fishermen from Seychelles, by unlawfully taking
control of the ship while armed with firearms. The particulars of the second
count were that between 15th November 2010 and 20th November 2010, the
accused, acting with common intention on the high seas, committed an act of
Faith” by unlawfully discharging a firearm while on board that ship. All the
accused denied the charges and the prosecution led the evidence of nineteen
witnesses to prove the case beyond reasonable doubt.
315
23 of the Seychelles Penal Code. After analysing the versions of

prosecution and defence, Justice Duncan Gaswaga convicted all of
them on both counts.1117 All of them were sentenced to 20 years of
imprisonment on the first count and 10 years of imprisonment on the
second count by the Supreme Court of Seychelles, with an order that
both these sentences shall run concurrently.1118
In The Republic of Seychelles vs. Mohamed Ahmed Ise and Four
Others,1119 five Somali nationals were charged on three counts of
committing acts of piracy on the high seas contrary to Sections 65,
65(4)(b) and 23 of the Seychelles Penal Code. After analysing the
versions of prosecution and defence, Justice Duncan Gaswaga
convicted all of them on all the three counts.1120 All of them were
sentenced to 18 years of imprisonment each for the first and the second

1118 Available at:
http://www.unicri.it/topics/piracy/database/Seychelles_2011_Case_No_75_(2010
the first count were that on 17th November 2010, the accused, together with
others unknown, acting with common intention on the high seas, committed an
act of piracy by committing an illegal act of violence or detention or an act of
Cap Ste Marie”, by unlawfully firing weapons aimed at it. The particulars of the
second count were that on 17th November 2010, the accused, together with
others unknown, acting with common intention on the high seas, committed an
act of piracy by committing an illegal act of violence or detention or an act of
Talenduic”, by unlawfully firing weapons aimed at it. Both these vessels were
incapable of manoeuvring due to a mechanical problem. The security guards on
board the vessels repulsed the attacks on both occasions. Upon receiving a report
of these attacks, a warship named Andromache was dispatched to neutralize and
arrest pirates. Five of them were arrested while some others managed to escape.
The particulars of the third count were that on 18th November 2010, the accused,
together with others unknown, acting with common intention on the high seas,
committed an act of piracy by voluntary participation in the operation of a ship
with knowledge of facts making it a pirate ship. All the accused denied the
charges and the prosecution led the evidence of twelve witnesses to prove the
case beyond reasonable doubt.
316
counts and 10 years of imprisonment for the third count by the Supreme
Court of Seychelles, with an order that both these sentences shall run
concurrently.1121
In The Republic of Seychelles vs. Liban Mohamed Dahir and Twelve
Others,1122 thirteen Somali nationals were charged on two counts of
committing acts of piracy on the high seas contrary to Sections
65(4)(a), 65(4)(b) and 23 of the Seychelles Penal Code. Before the
conclusion of trial, Accused No. 14, Absiye Adan Abisiye pleaded
guilty and was sentenced to 10 years of imprisonment.1123 After
analysing the versions of prosecution and defence, Justice Duncan
Gaswaga convicted 11 of the remaining 12 accused persons on the
second count, i.e., voluntarily participating in the operation of a pirate
ship on the high seas. Six adult convicts were sentenced to 12 years of
imprisonment each by the Supreme Court of Seychelles. Four minor
convicts above the age of 14 years but below the age of 18 years were
sentenced to two and a half years of imprisonment. It was directed that
they should be kept in a separate place, away from the adult offenders,
during their incarceration. One convict named Abdi Khadur Mohamed
(Accused No. 11, aged 12 years) could not be sentenced to prison as he
was below 14 years of age on the date of conviction. Therefore, he was
conditionally released in order to be deported back to Somalia. The
conditions of his release were that he should be deported to Somalia
and should not return to Seychelles ever again. As he was convicted, he
was remanded in custody till arrangements were made for his
1121 Available at:

the first count were that on 12th January 2012, the accused, while in a private
vessel on the high seas, acting with common intention, committed an act of
Happy Bird”, by unlawfully discharging firearms directed at it. The particulars
of the second count were that on 13th January 2012, the accused, on the high
seas, with common intention, committed a voluntary act of participation in the
operation of a ship with knowledge of facts making it a pirate ship. All the
accused denied the charges and the prosecution led the evidence of sixteen
witnesses to prove the case beyond reasonable doubt.
1123 Available at:
http://www.unicri.it/topics/piracy/database/Seychelles_2012_Crim_No_7_(2012)
_J udgement.pdf (Visited on December 18, 2014).
317
deportation. It was directed that he should be kept in a separate place,

away from the adult offenders till his deportation. One accused named
Burhan Yasin Ahmed (Accused No. 9), who was below 12 years of age,
was acquitted. It was directed that he should be returned to his
homeland and family as soon as possible.1124
In The Republic of Seychelles vs. Farad Ahmed Jama and Fourteen
Others,1125 fifteen Somali nationals were charged on three counts of
23 of the Seychelles Penal Code. All the accused chose to exercise their
Constitutional right to remain silent.1126 After analysing the versions of
prosecution and defence, Justice M. Burhan convicted all the accused
on all three counts.1127 Thirteen adult convicts were sentenced to 12
years of imprisonment each for the first count, 18 years of
imprisonment for the second count and 18 years of imprisonment for
the third count by the Supreme Court of Seychelles, with an order that
all these sentences shall run concurrently. Two minor convicts aged 15
years each were sentenced to 3 years of imprisonment for the first
count, 4 years of imprisonment for the second count and 4 years of
imprisonment for the third count, with an order that all these sentences
1124 Available at:

http://www.unicri.it/topics/piracy/database/Seychelles_2012_Crim_No_7_(2012)
_S entence.pdf (Visited on December 18, 2014).
the first count were that on 5th January 2012, the accused, on the high seas, with
common intention, committed an act of piracy with violence or detention
committed for private ends against persons on board another vessel named “The
MV Sunshine”, by unlawfully attacking it while armed with weapons. The
particulars of the second count were that on or about 1st January 2012, the
accused, on the high seas, with common intention, committed an act of piracy
with violence or detention committed for private ends against persons on board
another vessel named “The Al Molai”, by unlawfully taking control of it while
armed with firearms. The particulars of the third count were that on 5th January
2012, the accused, on the high seas, with common intention, committed an act of
piracy, namely voluntary participation in the operation of a ship named “The Al
Molai”, with knowledge of facts making it a pirate ship.
1126 Article 19(2)(h) of the Constitution of Seychelles provides that a person charged
with an offence shall not have any adverse inference drawn from the exercise of
the right to silence either during the course of the investigation or at the trial.
1127 Available at:
)_ Judgement.pdf (Visited on December 19, 2014).
318
shall run concurrently. It was directed that they should be kept in a

separate place, away from the adult offenders, while serving their term
of imprisonment.1128
7.4.2 Kenya: In a Memorandum of Understanding signed on 16th
January 2009, between Kenya and the United States of America, Kenya
agreed to prosecute captured pirates in its courts. This was not the first
time Kenya had agreed to such an arrangement. In a Memorandum of
Understanding signed on 11th December 2008, Kenya agreed to receive
and prosecute suspected pirates captured on the high seas by the United
Kingdom. United Kingdom regarded Kenya as an alternative to trying
suspects in Somalia, which the British argued had “no effective central
government or legal system”. Further, in March and August 2009,
Kenya signed similar agreements with the European Union and
Denmark respectively.1129
Under the MoU with USA, Kenya agreed to accept upon reasonable
request by USA, custody of any person interdicted by the security
forces under suspicion for committing or attempting to commit an act
of piracy or armed robbery against ships.1130 Further, upon taking
custody of suspected pirates, Kenya agreed to do the following:
I. Detain persons, evidence and properties, and submit them to its
competent authorities for investigation in a manner consistent with its
domestic law and the Code of Practice;1131
II. Submit cases to Kenyan authorities for the purpose of prosecution
or take appropriate action to extradite or repatriate suspected pirates;1132
III. Notify the USA of its intention to initiate criminal trial
proceedings and the timetable for the provision of evidence and the
hearing of evidence;1133 and
1128 Available at:

1129 James Thuo Gathii, “Jurisdiction to Prosecute Non-National Pirates Captured by
Third States under Kenyan and International Law” 31 LLAICLR 363 (2009).
1130 Supra note 20, at 108. Memorandum of Understanding Concerning the
Conditions of Transfer of Suspected Pirates and Armed Robbers and Seized
Property in the Western Indian Ocean, the Gulf of Aden and the Red Sea.
1131 Ibid.
1132 Ibid.
1133 Ibid.
319
IV. Provide and facilitate reasonable access in the Republic of

Kenya by the representatives of the USA to any suspected pirates.1134
The USA agreed to support Kenya in conducting investigations and
prosecutions by assisting with evidence collection and ensuring the
presence of necessary witnesses at Kenyan judicial proceedings. In
May 2009, the United Nations Office on Drugs and Crime (UNODC)
granted US $ 2.3 million to Kenya for the first eighteen months of
prosecution to assist in this effort. Kenya has complied with this MoU
in letter and spirit. However, these piracy prosecutions have placed a
significant strain on the Kenyan Courts.1135
Under the MoU with the United Kingdom, Kenya agreed to accept
upon the request of the United Kingdom, the transfer of persons
detained by the British forces in connection with piracy and armed
robbery and the transfer of associated seized property in the possession
of the British forces. Kenya shall then submit such persons and
property to its competent authorities for the purpose of investigation
and prosecution. The MoU prohibits bringing charges carrying the
death penalty against any transferred person. It also guarantees certain
procedural rights to the transferred person in the matters of prosecution
and trial. However, the qualifying nature of reasonable request which
exists under the MoU with USA, does not exist under the MoU with the
United Kingdom. Further, unlike the US MoU, there is no requirement
under the UK MoU for the United Kingdom to assist in the
investigation and prosecution of suspected pirates.1136
Section 69 of The Penal Code of Kenya, 1930, criminalized piracy in
both Kenya’s territorial waters and on the high seas.1137 Till 2009,
1134 Ibid.
1135 Ibid.
1136 Supra note 20, at 109. Memorandum of Understanding on the Conditions of
Transfer of Suspected Pirates and Armed Robbers and Seized Property to the
Republic of Kenya.
1137 Before it was repealed, Section 69 of The Penal Code of Kenya, 1930, read as
follows:
1. Any person who in territorial waters or upon the high seas, commits any act of
piracy jure gentium is guilty of the offence of Piracy.
2. Any person who being the master, an officer or a member of the crew of any ship
and who:
(a) Unlawfully runs away with the ship; or
(b) Unlawfully yields it voluntarily to any other person; or
320
suspected pirates were charged under this Section. This Section was
repealed in 2009.1138 Thereafter, the Government of Kenya enacted the
Merchant Shipping Act, 2009, which came into force on 1st September
2009.1139 It defines the offence of piracy more comprehensively than
Section 69 of the Penal Code. Apart from piracy, this Act also defines
many related terms like armed robbery against ships, pirate ship or
aircraft, and private ship and private aircraft.1140 The definition of piracy
(c) Hinders the master, an officer or any member of the crew in defending the ship
or its passengers or cargo; or
(d) Incites a mutiny or disobedience with a view to depriving the master of his
command over the ship;
commits the offence of piracy.
3. Any person who is guilty of the offence of piracy is liable to imprisonment for life.
1138 Available at: http://piracy-law.com/2011/01/27/kenya-no-jurisdiction-to-try-
piracy/ (Visited on December 19, 2014).
1139 Available at: http://faolex.fao.org/docs/pdf/ken94222.pdf (Visited on December
19, 2014).
1140 Ibid. Section 369(1) of the Merchant Shipping Act, 2009, defines these terms as
follows:
1. Armed robbery against ships means any unlawful act of violence or detention or
any act of depredation, or threat thereof, other than an act of piracy, directed
against persons or property on board such a ship, within territorial waters or
waters under Kenya’s jurisdiction.
2. Piracy means:
(a) any act of violence or detention, or any act of depredation, committed for private
ends by the crew or the passengers of a private ship or a private aircraft, and
directed:
(i) against another ship or aircraft, or against persons or property on board such ship
or aircraft; or
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of
any State;
(b) any voluntary act of participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft; or
(c) any act of inciting or of intentionally facilitating an act described in paragraph (a)
or (b).
3. Pirate ship or aircraft means a ship or aircraft under the dominant control of persons
who:
(a) intend to use such ship or aircraft for piracy; or
(b) have used such ship or aircraft for piracy, so long as it remains under the control
of those persons.
321
and pirate ship or aircraft is identical to the definition of the same terms
mentioned in the United Nations Convention on the Law of the Sea,
1982. Under this Act, piracy and armed robbery against ships are
crimes punishable with imprisonment for life.1141 Some piracy cases
decided by the Kenyan Courts are mentioned hereunder:
In The Republic of Kenya vs. Hassan Muhamud Ahmed and Nine
Others,1142 ten Somali nationals captured approximately 200 miles off
the coast of Somalia by the US Navy were charged under Section 69 of
the Penal Code of Kenya before the court of a Senior Principal
Magistrate in Mombasa for hijacking the Indian vessel named “MV
Safina Al Bisaraat” on the high seas on 16th January 2006, for
threatening the lives of its crew and for demanding a ransom of US $
50,000 for its release. All the accused denied the charges.1143 However,
after considering the versions of prosecution and defence, all of them
were convicted on the said charges and were sentenced to 7 years of
imprisonment each. The Court found no evidence that they were merely
fishermen, or that any of them were minors, as had been alleged in their
defence. Following this sentence, an appeal arguing that the Kenyan
courts lacked jurisdiction over crimes committed by non-nationals on
the high seas (which are outside the jurisdiction of Kenyan Courts) was
filed in the High Court of Kenya. But the appeal was regarded as
absolutely without merit and dismissed by the High Court.1144 Justice F
Azangalala, quoting International Law jurist Martin Dixon held that “it
seems clear that piracy, war crimes and crimes against humanity (for
eg. genocide) are crimes susceptible to universal jurisdiction under
customary international law. The universal principle of jurisdiction
4. Private ship and Private aircraft mean a ship or aircraft that is not owned by the
Government or held by a person on behalf of or for the benefit of the
Government.
Section 369(2) provides that piracy committed by a warship, government ship or
government aircraft whose crew has mutinied and taken control of the ship or
aircraft is assimilated to piracy committed by a private ship or aircraft.
1141 Ibid. Section 371 of the Merchant Shipping Act, 2009, provides that any person
who commits any act of piracy, or in territorial waters commits any act of armed
robbery against ships, shall be liable, upon conviction, to imprisonment for life.
1142 Criminal Case No. 434 of 2006. This was the first piracy trial in Kenya.
1144 Id., at 366.
322
rests on the nature of the crime committed rather than the identity of
the perpetrator or the place of commission”.1145
In The Republic of Kenya vs. Aid Mohamed Ahmed and Seven
Others,1146 eight Somali nationals were charged before the Chief
Magistrate’s Court at Mombasa for piracy under Section 69 of the
Penal Code of Kenya for attacking a vessel named “MV Powerful” on
the high seas. After considering the versions of prosecution and
defence, all of them were convicted for piracy and were sentenced to 20
years of imprisonment each. The Court observed that piracy in this
region (High Seas in the Indian Ocean) has become a menace and
therefore, acts of piracy deserve a deterrent sentence.1147
In The Republic of Kenya vs. Jama Abdikadir Farah and Six
Others,1148 seven Somali nationals were charged before the Chief
Penal Code of Kenya for attacking a vessel named “Nepheli” on the
high seas. After considering the versions of prosecution and defence,
all of them were convicted for piracy and were sentenced to four and a
half years of imprisonment each. While awarding lesser punishment,
the Court took into account some mitigating factors i.e., the young age
of the accused, the fact that they come from a lawless country where
1145 Available at:

http://www.unicri.it/topics/piracy/database/Kenya_2009_Crim_No_198-
207_(2008)_Criminal%20appeal.pdf (Visited on December 21, 2014).
1146 Criminal Case No. 3486 of 2008. The particulars of the offence were that on 11th
November 2008, the accused, jointly with others not before the court, attacked a
motor vessel named “MV Powerful” on the high seas of the Indian Ocean and
attempted to hijack it, being armed with offensive weapons, i.e., AK 47 Rifles
and RPG Launchers, thereby putting in fear the lives of the crew of the said ship.
They were arrested on the high seas near the Somali coast by the British forces.
All the accused denied the charges and the prosecution called 11 witnesses to
prove the case beyond any reasonable doubt.
1147 Available at:
http://www.unicri.it/topics/piracy/database/Kenya_2010_Crim_No_3486%20(200
8 )%20Judgment.pdf (Visited on December 23, 2014).
1148 Criminal Case No. 1695 of 2009. The particulars of the offence charged were
that on 6th May 2009, the accused attacked a motor vessel named “Nepheli” on
the high seas of the Indian Ocean, being armed with offensive weapons like guns
and knives, and at the time of such act, put in fear the lives of the crew men of
the said vessel. They were arrested by the Spanish Navy. All the accused denied
the charges and the prosecution called 10 witnesses to prove the case beyond any
reasonable doubt.
323
there is no proper Government, the fact that they have been in custody
for almost one and a half years and that they have been tried far away
from home.1149
In The Republic of Kenya vs. Mohamud Mohamed Hashi and Eight
Others,1150 nine Somali nationals were charged before the Chief
Penal Code of Kenya for attacking a vessel named “MV Courier” on
the high seas.1151 After hearing the prosecution case and evaluating the
evidence, the Magistrate placed all the accused persons on their
defences. It is at this stage that the accused applied for leave to institute
judicial review proceedings before the High Court of Kenya. They
sought an order of prohibition, prohibiting the Chief Magistrate,
Mombasa or any other Magistrate, from hearing, proceeding with,
dealing with, entertaining or otherwise allowing the prosecution of this
criminal case.1152 They sought this relief on the ground that under
Section 5 of the Penal Code of Kenya, the Kenyan courts do not have
the jurisdiction to try the applicants.1153 On 9th November 2010, after
hearing the arguments of both sides, Justice MK Ibrahim held that the
courts in Kenya do not have the jurisdiction to try the charges against
1149 Available at:

http://www.unicri.it/topics/piracy/database/Kenya_2010_Crim_No_1695%20(200
9 )%20Judgment.pdf (Visited on December 23, 2014).
1150 Criminal Case No. 840 of 2009. The particulars of the offence charged were that
on 3rd March 2009, the accused attacked a machine sailing vessel named “M.V.
Courier” on the high seas of the Indian Ocean, being armed with offensive
weapons, i.e., AK 47 Rifles, Carbine Rifles, RPG Launchers, SAR 80 Rifles and
Tokalev Pistols, and at the time of such act, put in fear the lives of the crew men
of the said vessel. They were arrested by the US Navy. All the accused denied
the charges and the prosecution called 15 witnesses to prove the case beyond any
reasonable doubt.
1151 During the pendency of this case, Section 69 of the Penal Code of Kenya was
repealed and piracy was made a criminal offence under Section 371 of the newly
enacted Merchant Shipping Act, 2009. However, the accused were being tried
under Section 69 as the charges were framed under this Section before its repeal.
1152 Available at:
http://www.unicri.it/topics/piracy/database/Kenya_2010_Crim_No_434_(2009)_J
u dgment%20in%20case%20434.2009%20(k5).pdf (Visited on December 21,
2014).
1153 Section 5 of the Penal Code of Kenya, 1930, provides that the jurisdiction of the
courts of Kenya for the purpose of this Code extends to every place within
Kenya, including territorial waters.
324
the applicants. The court ordered the Kenyan Government to procure

their safe return and passage to their country of origin.1154 Thus, the
judgement delivered by the High Court in The Republic of Kenya vs.
Hassan Muhamud Ahmed and Nine Others1155 was overruled by this
decision.
The judgement of the High Court of Kenya was challenged before
the Kenyan Court of Appeal (the highest Court of Kenya) at Nairobi.
On 18th October 2012, the Court of Appeal overruled the judgement of
the High Court and held that Kenyan courts have the jurisdiction to try
piracy suspects whose alleged acts occurred beyond the country’s
territorial waters. Justice David Maraga stated that the High Court erred
by subordinating Section 69 of the Penal Code to Section 5;
misinterpreting Sections 369 and 371 of the Merchant Shipping Act of
2009; and failing to appreciate the applicability of the doctrine of
universal jurisdiction.1156 He held that one of the established principles
of statutory interpretation is that in the event of statutory inconsistency,
the Statute or Section later in time prevails. Thus, it is Section 69
(enacted in 1967) which should supersede and prevail over Section 5
(enacted in 1930). But there is no warrant for that, as there is no conflict
between the two Sections. This is because Section 5 is a part of Chapter
3 of the Penal Code titled, “Territorial Application of the Code”, while
Section 69 is a part of Chapter 8 titled “Offences Affecting Relations
With Foreign States and External Tranquility”. In short, Section 5
concerns itself with the territorial jurisdiction of Kenyan Courts while
Section 69 deals with extraterritorial offences.1157 Ultimately, Justice
Maraga concluded that:
“The offence of piracy on the coast of Somalia, which we are
dealing with in this appeal, is of great concern to the international
community as it has affected the economic activities and thus the
economic well being of several countries including Kenya. All States,
not necessarily those affected by it, have therefore the right to exercise
universal jurisdiction to punish this offence”.1158
1154 Available at: http://piracylaw.files.wordpress.com/2011/01/in-re-mohamud-

mohamed-hashi-et-al1.pdf (Visited on December 21, 2014).
1155 Criminal Case No. 434 of 2006.
1156 Available at: http://www.ejiltalk.org/after-a-brief-hiatus-kenya-once-again-has-
universal-jurisdiction-over-pirates/ (Visited on December 21, 2014).
1157 Ibid.
1158 Ibid.
325
7.4.3 The United States of America

The Constitution of the United States of America gives Congress the
power to define and punish the crime of piracy and other felonies
committed on the high seas.1159 The US Congress first exercised this
power by enacting the Federal Crimes Act, 1790. The offence of piracy
created by this Act was very wide and free ranging as it blended
together the acts of a mutineer and a pirate.1160 In United States vs.
Pirates,1161 Justice William Johnson of the Supreme Court of USA
observed that “it is obvious that the penman who drafted Section 8 of
the Federal Crimes Act, 1790, acted from an indistinct view of the
divisions of his subject. He has blended all crimes punishable under the
admiralty jurisdiction in the general term of piracy”.1162
This Act was succeeded by The Act to Protect the Commerce of the
United States and Punish the Crime of Piracy, 1819. Section 5 of this
Act provided that “if any person or persons whatsoever, shall, on the
high seas, commit the crime of piracy as defined by the law of nations,
and such offender or offenders shall afterwards be brought into or
found in the United States, every such offender or offenders shall, upon
conviction be punished with death”.1163 Although by this Act, Congress
specifically outlawed piracy under the law of nations, it still did not
provide a definition of piracy, despite the Constitution’s explicit text
1159 Available at: http://constitutionus.com/ (Visited on December 23, 2014). Article

I, Section 8, Clause 10 of the Constitution of USA provides that the Congress
shall have the power to define and punish Piracies and Felonies committed on
the high seas, and offences against the Law of Nations.
1160 Available at: https://en.wikipedia.org/wiki/Crimes_Act_of_1790 (Visited on
August 5, 2015). Section 8 of this Act provided that if any person or persons shall
commit, upon the high seas, or in any river, haven, basin, or bay, out of the
jurisdiction of any particular State, murder or robbery, or any other offence,
which, if committed within the body of a county, would, by laws of the United
States, be punishable with death; or, if any captain or mariner of any ship or
other vessel, shall piratically and feloniously run away with such ship or vessel,
or any goods or merchandize, to the value of fifty dollars, or yield up such ship
or vessel voluntarily to any pirate; or if any seaman shall lay violent hands upon
his commander, thereby to hinder and prevent his fighting in defence of his ship,
or goods committed to his trust, or shall make a revolt in the ship; every such
offender shall be deemed, taken, and adjudged to be, a pirate and felon, and
being thereof convicted, shall suffer death.
1161 18 US (5 Wheat.) 196 (1820).
1163 Id., at 77.
326
granting Congress the power to define and punish piracy. Section 5 of

the Act of 1819, originally limited to one year, was extended
indefinitely on 15th May 1820, and is still in force today, slightly
modified in the form of Section 1651 of Title 18 of the United States
Code.1164
Although both Kenya and the Seychelles are available venues for
prosecution, the USA, through its Department of Justice, has
demonstrated a willingness to prosecute pirates, particularly when
American interests are at stake.1165 This is evident from the following
cases:
In United States vs. Shi,1166 a Chinese national named Lei Shi was
indicted under Section 2280(a)(1)(A) and (B) of Title 18 of the United
States Code1167 for seizing control by force of a Taiwanese vessel
registered in Seychelles and for performing an act of violence likely to
1164 Id., at 78. Section 1651 provides that whoever, on the high seas, commits the
crime of piracy as defined by the law of nations, and is afterwards brought into
or found in the United States, shall be imprisoned for life.
1166 525 F.3d 709, 721, 2008 AMC 1077 (9th Cir. 2008). The facts of the case were
that on 14th March 2002, a Taiwan owned fishing vessel registered in the
Republic of Seychelles was sailing in international waters off the coast of Hawaii
(USA). During the voyage, Lei Shi, a Chinese national, assaulted and killed the
Taiwanese Captain and the Chinese first mate. No American citizen, vessel or
property was harmed or involved in the crime. Lei Shi ordered the second mate
to drive the ship and retained control over it for two days. On 16th March 2002,
the crew overpowered Shi and imprisoned him in a storage compartment on the
ship. The crew then set course for Hawaii, though they never contacted the ship's
parent company, apparently because none of them knew how to operate the
radio. On 19th March 2002, a US Coast Guard vessel intercepted the ship
approximately 60 miles from Hilo, Hawaii. After the Republic of the Seychelles
waived jurisdiction, the ship's acting master permitted the US Coast Guard
personnel to board. Lei Shi was taken into US custody, transported to Honolulu
and indicted for seizing control of a vessel by force.
1167 Section 2280 of Title 18 of the United States Code deals with violence against
maritime navigation. Section 2280(a)(1)(A) and (B) provide that a person who
unlawfully and intentionally seizes or exercises control over a ship by force or
threat thereof or any other form of intimidation; or performs an act of violence
against a person on board a ship if that act is likely to endanger the safe
navigation of that ship, shall be fined under this title, or imprisoned for not more
than 20 years, or both; and if the death of any person results from conduct
prohibited by this paragraph, shall be punished by death or imprisoned for any
term of years or for life.
327
endanger the safety of the ship. After considering the versions of

prosecution and defence, the Jury convicted him on both counts and the
District Court sentenced him to 36 years of imprisonment. He
challenged the verdict and the jurisdiction of the District Court before
the United States Court of Appeal for the Ninth Circuit. The Ninth
Circuit Court upheld his conviction and held that the acts with which
Shi was charged constitute acts of piracy, which is a crime subject to
universal jurisdiction.1168 The court observed that “Section 2280 of Title
18 of the US Code codifies the United States’ obligations under the
Maritime Navigation, 1988 (SUA Convention).1169 As the offences
mentioned in Section 2280 involve interference with property on the
open sea through the use of force, they are within Congress’s power to
define and punish as crimes of piracy. The Convention of 1988, which
was designed to counter international terrorism, can also be applied to
ordinary crimes”.1170
Thus, the USA can be said to have two main statutory avenues for
prosecuting high seas piracy, i.e., Sections 1651 and 2280 of Title 18 of
the United States Code. This remarkable case is the first prosecution
brought under the statute codifying US obligations under the SUA
Convention, 1988. This is the first time in nearly 200 years that a US
court has invoked the doctrine of universal jurisdiction over piracy, and
it is a rare assertion by US courts of universal jurisdiction over any
international crime.1171
1168 Available at: http://caselaw.findlaw.com/us-9th-circuit/1311002.html (Visited on

December 25, 2014).
1170 Id., at 81.
1171 Available at: https://litigation-
essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doc
type
=cite&docid=103+A.J.I.L.+734&srctype=smi&srcid=3B15&key=edbbf19f3fbdc
e95 85fc7815bd888663 (Visited on December 25, 2014).
328
In United States vs. Muse,1172 a Somali national named Abdulwali

Abdulkhadir Muse was indicted for piracy for hijacking the US
Container Ship “Maersk Alabama” in the Indian Ocean, and the
subsequent taking of Captain Richard Phillips as hostage. He pleaded
guilty before the US Federal Court in New York for his role in seizing
a ship by force, hostage taking, kidnapping, and conspiracy to commit
each of these offences. However, he avoided the most noteworthy
charge he had faced, i.e., piracy under the law of nations under Section
1651 of Title 18 of the United States Code (may be because it carried a
mandatory life sentence). During the trial, the charges of piracy and
possession of a machine gun were dropped in exchange for his guilty
plea. On 16th February 2011, Muse was sentenced to 33 years and 9
months of imprisonment in federal prison.1173
1172 United States District Court for the Southern District of New York (2011). The
facts of the case were that the US flagged Container Ship “Maersk Alabama”
with a crew of 23, loaded with 17,000 metric tons of cargo, was bound for
Mombasa, Kenya, after a stop at Djibouti City (Capital of the Republic of
Djibouti). On 8th April 2009, four Somali nationals attacked with firearms and
illegally boarded the vessel on the high seas off the coast of Somalia. The pirates
captured Captain Richard Phillips and several other crew members minutes after
boarding, but soon found that they could not control the ship. The crew took
back control of the ship after a fight and captured the pirate leader Abdulwali
Abdulkhadir Muse. Later, after suffering in the overheated secure room for
hours, the crew attempted to exchange the pirate they had captured for the
Captain, but the exchange went awry and after the crew released their captive,
the pirates refused to honour the agreement. Captain Phillips escorted the pirates
to a lifeboat to show them how to operate it, but then the pirates fled in the
lifeboat with Phillips as a hostage. On 8th April 2009, the US Navy guided
missile destroyer “USS Bainbridge” and the guided missile frigate “USS
Halyburton” were despatched to tackle the hostage situation. The hostage
standoff between the pirates and the US Navy ended on 12th April 2009, when
Navy SEAL Snipers simultaneously shot dead three pirates, captured their leader
Abdulwali Abdulkhadir Muse and safely rescued Captain Richard Phillips. On
20th April 2009, Muse was transferred from the custody of the US Navy to the
Federal Bureau of Investigation for being transported to the Southern District of
New York.
1173 Available at: http://en.wikipedia.org/wiki/Abduwali_Muse (Visited on
December 25, 2014).
329
In United States vs. Hasan,1174 five Somali nationals were indicted

for piracy under Section 1651 of Title 18 of the United States Code for
attacking the US Navy warship “USS Nicholas” on the high seas, while
armed with offensive weapons, i.e., AK 47 assault rifles and RPG’s.
After considering the versions of prosecution and defence, District
Judge Mark Davis, presiding over the District Court for the Eastern
District of Virginia, convicted all of them for piracy and sentenced
them to imprisonment for life. He applied the modern definition of
piracy mentioned in Article 101 of the UN Convention on the Law of
the Sea, 1982. His rationale underlying the preference for the
international definition was that the definition of piracy in the United
States Code could only be determined by referring to the modern law of
nations.1175
7.5 EXTRADITION OF PIRATES VIS A VIS ASYLUM CLAIMS

Extradition may be briefly described as the surrender of an alleged
or convicted criminal by one State to another. More precisely,
extradition may be defined as the process by which one State upon the
request of another, surrenders to the latter a person found within its
jurisdiction for trial and punishment or, if he has been already
convicted, only for punishment, on account of a crime punishable by
the laws of the requesting State and committed outside the territory of
1174 747 F. Supp. 2d 599, 640-41 (ED Va. 2010). The facts of the case were that on 1st
April 2010, somewhere on the high seas between Somalia and the Seychelles, the
defendants sighted what they believed to be a merchant ship. Three defendants
named Hasan, Ali, and Dire thereafter boarded one of the two small assault boats
moored to the seagoing vessel and set out to attack the perceived merchant ship.
To facilitate their attack, Hasan carried a rocket propelled grenade and Ali and
Dire each carried an AK 47 assault rifle. The other two defendants named
Gurewardher and Umar meanwhile remained on board the seagoing vessel. As
the crew of the assault boat approached their target, Ali and Dire raised their
assault rifles and opened fire on the vessel. To the surprise of Hasan, Dire, and
Ali, what they had until then believed to be a merchant vessel quickly revealed
itself to be the “USS Nicholas”, a United States Navy frigate. After the “USS
Nicholas” returned fire, Hasan, Dire, and Ali fled the scene in their assault boat.
The “USS Nicholas” gave chase, eventually capturing the assault boat, Hasan,
Ali, and Dire. The “USS Nicholas” thereafter searched for, found, and captured
the seagoing vessel, along with Gurewardher and Umar.
1175 Available at:
http://www.unicri.it/topics/piracy/database/USA_2010_District_Court_Crim_No
_2 _10cr56%20Order.pdf (Visited on December 26, 2014).
330
the requested State.1176 The most common legal sources for extradition
are found in treaties and international conventions. Treaties include
both bilateral and multilateral treaties that are individually executed
between States. Beyond these formal agreements, informal extradition
arrangements are not uncommon, especially in the specific context of
piracy around the Horn of Africa. Although the UN Convention on
Law of the Sea, 1982, does not make any provision for the extradition
of pirates, they can be extradited by invoking the provisions of bilateral
or multilateral treaties or other International Conventions dealing with
maritime law and international terrorism, i.e., Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime
Navigation (SUA Convention), 1988, International Convention Against
the Taking of Hostages, 1979, and the United Nations Convention
Against Transnational Organized Crime, 2000.1177
On 22nd February 2012, the London Conference on Somalia took
place. The Conference aimed directly at the problems in Somalia and
how to solve them. While the focus of the Conference was on a wider
scope than simply piracy, there were important developments
specifically focused on piracy. These developments directly lead to an
environment that is amenable to establishing binding extradition
agreements. The Conference was attended by leaders from around the
world including representatives from the United States of America,
United Nations, African Union, European Union, United Kingdom, and
Somalia, among others. The representatives agreed to “crack down on
piracy by expanding on agreements to bring suspects to trial in
countries away from Somalia.” The Conference further affirmed the
commitment to both prosecute pirates in the Seychelles and to
ultimately imprison the convicted pirates in Somalia. Moreover,
Somaliland signed an agreement with Seychelles to transfer convicted
pirates from prisons in Seychelles to prisons in Somaliland.1178 This
agreement paves the way for further prosecutions in Seychelles as it
1176 Available at: http://cbi.nic.in/interpol/extradition.php (Visited on December 26,

2014).
1177 Available at:
http://law.case.edu/Academics/AcademicCenters/Cox/WarCrimesResearchPortal
/m emoranda/PILPG_Issue_30_Seychelles_Piracy_Extradition_Analysis.pdf
(Visited on December 26, 2014). For the detailed provisions of these
Conventions, see Chapter VI.
1178 Ibid.
331
decreases the stress on the prison system because Seychelles no longer

will have to imprison every convicted pirate itself. At the same time,
Puntland made clear its commitment to the transfer of convicted pirates
from prisons in the region to prisons in Puntland. If states follow
through on their pledges, there will soon be a “seamless cycle of justice
where pirates are caught at sea, prosecuted in regional states and
imprisoned in Somalia.” The cooperation amongst States at the
Conference in this respect represents a significant step towards and an
opportunity for reaching formal agreements regarding extradition in the
region where those agreements are lacking.1179
The term asylum has no agreed upon definition in international law.
However, it generally refers to the protection of an individual by a State
other than the individual’s State of origin or habitual residence, from
human rights violations or other similar proscribed harms.1180 Asylum
can also be defined as protection and immunity from extradition
granted by a government to a political refugee from another country.1181
Only a small portion of those criminals committing piracy are
actually captured and brought to trial, as opposed to captured and
released. For example, in September 2008, a Danish warship captured
ten Somali pirates, but then later released them on a Somali beach, even
though the pirates were found with assault weapons. Britain’s Royal
Navy and the Canadian Navy have been accused of releasing suspected
pirates.1182 Furthermore, when pirates are tried, they are often tried by
Kenya or other African nations, rather than by the capturing western
nations.1183 One reason often given to explain the reluctance of western
nations to try pirates on their own soil is the threat of asylum claims by
convicted pirates.1184 In fact, in April 2008, the British Foreign Office
warned the Royal Navy that detaining pirates at sea could be a violation
1179 Ibid.
1180 Available at:
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2277&context=ilj
1181 Available at: http://www.thefreedictionary.com/asylum (Visited on December
26, 2014).
Reason To Allow Pirates To Escape Justice?” 34 FILJ 237 (2011).
1183 Id., at 238.
1184 Id., at 240.
332
of their human rights and could also lead to asylum claims by pirates
seeking to relocate to Europe.1185
Nevertheless, although the threat of asylum claims is frequently
offered to explain western nations’ reluctance to prosecute pirates in
their own courts, what is not addressed is whether this fear has any
actual basis in law. In any event, even if the fear of asylum claims is
well founded, is this a reason to allow western nations to avoid their
duty to prosecute crimes that violate international law? Although some
pirates are being prosecuted, why should others get away solely
because western nations fear asylum claims?1186 Under international
law, States are under no obligation to grant asylum to those seeking it.
However, where basic human rights would be threatened by returning
an individual to his country of origin, a need for international
protection may arise. Thus, the right to deny admission to asylum
seekers is limited by the “Principle of Non Refoulement”, a principle
that finds expression primarily in refugee law, but also in international
human rights law. Under that principle, states have a responsibility to
protect individuals from being removed, returned, or transferred to a
country where they are at risk of being persecuted or tortured.1187 The
non refoulement provisions of particular relevance to the problem of
prosecuting pirates are contained in the following international
documents:
I. Geneva Convention Relating to the Status of Refugees, 1951.1188
II. Protocol Relating to the Status of Refugees, 1967.1189
III. Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment, 1984.1190
IV. International Covenant on Civil and Political Rights, 1966.1191
V. European Convention for the Protection of Human Rights and
Fundamental Freedoms, 1950.1192
7.5.1 Geneva Convention Relating to The Status of Refugees, 1951
and The Protocol of 1967: The principle against refoulement was
1185 Ibid.
1186 Id., at 241.
1187 Id., at 254.
1188 Ibid.
1189 Id., at 255.
1190 Ibid.
1191 Ibid.
1192 Ibid.
333
developed in relation to the protection of refugees and is specifically

addressed in the Refugee Convention of 1951 and the 1967 Protocol.
The purpose of the convention is the international protection of
fundamental human rights of individuals who are not protected by their
own country.1193 It provides that “no contracting State shall expel or
return a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or
political opinion”.1194 The protections against refoulement and the other
benefits associated with the Refugee Convention apply only to one who
satisfies the definition of “refugee” contained in the Convention of
1951. In this Convention, refugee is defined as “a person who owing to
a well founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable, or owing
to such fear, is unwilling to avail himself of the protection of that
country”.1195 The Convention of 1951 forbids states from granting
refugee status to any person with respect to whom there are serious
reasons for considering that:
1. He has committed a crime against peace, a war crime, or a crime
against humanity, as defined in the international instruments drawn up
to make provision in respect of such crimes;1196 or
2. He has committed a serious non political crime outside the
country of refuge prior to his admission to that country as a refugee;1197
or
3. He has been guilty of acts contrary to the purposes and principles
of the United Nations.1198
Those who are accorded the status of refugee may also be refused
the convention’s protection against refoulement if they pose a
1193 Id., at 256.

1194 Available at: http://www.unhcr.org/3b66c2aa10.html (Visited on August 6,
2015). Article 33 of The Geneva Convention Relating to the Status of Refugees,
1951.
1195 Ibid. Article 1(A)(2) of The Geneva Convention Relating to the Status of
Refugees, 1951.
1196 Ibid. Article 1(F) of The Geneva Convention Relating to the Status of Refugees,
1951.
1197 Ibid.
1198 Ibid.
334
fundamental threat to the country in which they are seeking refuge.1199

Determination of refugee status under the Refugee Convention of 1951
and the 1967 Protocol is left to the discretion of the State in whose
territory the individual applies for refugee status. Accordingly, States
may vary somewhat in the criteria they apply in determining whether
an individual is entitled to refugee status and asylum (and the benefits,
such as residency that are associated with that status) or protection from
refoulement.1200
7.5.2 Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment, 1984: Those not granted refugee
status nor protected against refoulement under international refugee law
may still benefit from the principle under the complementary protection
granted by States under international human rights law. The treaties
prohibiting refoulement most relevant to the potential asylum claims
that could be brought by pirates convicted in western nations are the
Convention Against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment (CAT), the European Convention for the
Protection of Human Rights and Fundamental Freedoms (ECHR), and
the International Covenant on Civil and Political Rights (ICCPR). Each
prohibits or has been interpreted to prohibit returning persons to
countries where they would face torture, or in some cases, where they
would face cruel, inhuman, or degrading treatment or punishment.1201
Under The Convention against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment, for a potential act to
constitute torture, which creates a non refoulement obligation, it must
be inflicted by or with the acquiescence of a public official or other
person acting in an official capacity. Persons in danger of being
subjected to torture by private individuals are not protected from
refoulement under this Convention unless a government official
consented or acquiesced to the abuse. Furthermore, the individual must
satisfy the initial burden of showing there are substantial grounds for
believing that he would be in danger of being subjected to torture in the
1199 Supra note 120, at 257. Article 33(2) of the Convention provides that the benefit
of the non refoulement provision may not be claimed by a refugee whom there
are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that country.
1200 Id., at 258.
1201 Id., at 259.
335
future if refouled. The Committee against Torture, whose role it is to

supervise compliance with this Convention, offers the view that
“substantial grounds for believing” suggests a risk of future torture
“beyond mere theory or suspicion,” but not at the level of “being highly
probable”. However, while the Committee’s views and interpretations
do provide some guidance to States, its views, and even its decisions in
individual cases are not binding upon States.1202
7.5.3 International Covenant on Civil and Political Rights, 1966

The International Covenant on Civil and Political Rights (ICCPR)
was adopted in 1966 and entered into force in 1976. Together with the
International Covenant on Economic, Social and Cultural Rights
(ICESCR), and the Universal Declaration of Human Rights, it forms
the International Bill of Human Rights.1203 While the ICCPR legally
binds States to protect a variety of human rights, it does not specifically
contain a non refoulement provision. Rather, the duty of States to
refrain from returning individuals to States where they would be
subjected to torture has been implied by the United Nations Human
Rights Committee, the committee responsible for implementation of the
ICCPR. That Committee has held that parties to the ICCPR shall not
remove a person to another country where there are substantial grounds
for believing that there is a real risk of irreparable harm, such as that
contemplated by Articles 6 and 7 of the treaty.1204 According to the
1202 Id., at 262.

1203 Id., at 263.
1204 Id., at 264. Article 6 of the ICCPR reads as follows:
(1) Every human being has the inherent right to life. This right shall be protected by
law. No one shall be arbitrarily deprived of his life.
(2) In countries which have not abolished the death penalty, sentence of death may be
imposed only for the most serious crimes in accordance with the law in force at
the time of the commission of the crime and not contrary to the provisions of the
present Covenant and to the Convention on the Prevention and Punishment of
the Crime of Genocide. This penalty can only be carried out pursuant to a final
judgement rendered by a competent court.
(3) When deprivation of life constitutes the crime of genocide, it is understood that
nothing in this article shall authorize any State Party to the present Covenant to
derogate in any way from any obligation assumed under the provisions of the
Convention on the Prevention and Punishment of the Crime of Genocide.
(4) Anyone sentenced to death shall have the right to seek pardon or commutation of
the sentence. Amnesty, pardon or commutation of the sentence of death may be
granted in all cases.
336
Committee, States must not expose individuals to any of the dangers

listed in these Articles by virtue of their extradition, expulsion, or
refoulement.1205
By its general comments, the Committee has stated that Article 7
protects against acts committed by persons acting in their private
capacity as well as persons acting in an official capacity. According to
the Human Rights Committee, to avoid refoulement under the ICCPR,
the individual must meet the initial burden of showing “substantial
grounds for believing that there is a real risk of being subjected to
torture, or other cruel, inhuman or degrading treatment or punishment”.
The State must then assess the claim and submit substantive grounds
for its position regarding refoulement. Again, it is the State that has
primary responsibility for determining whether individual applicants
are entitled to protection against refoulement under the ICCPR.1206
Individuals may only bring claims before the Human Rights Committee
if the State in which they seek to remain is a party to the Optional
Protocol to the ICCPR and if they have exhausted all domestic avenues
for relief.1207 Even in those cases where the Committee determines that
the individual is protected against refoulement under the ICCPR, those
determinations are not binding on State parties. The committee can
only request a State to accept its views.1208
7.5.4 European Convention for the Protection of Human Rights

and Fundamental Freedoms, 1950
The European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR) was adopted in 1950 and entered into
force in 1953. Although it contains no specific non refoulement
provision, one has been implied. The European Court of Human Rights
(5) Sentence of death shall not be imposed for crimes committed by persons below
eighteen years of age and shall not be carried out on pregnant women.
(6) Nothing in this article shall be invoked to delay or to prevent the abolition of
capital punishment by any State Party to the present Covenant.
Article 7 of the ICCPR provides that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. In particular, no one shall be
subjected without his free consent to medical or scientific experimentation.
1205 Ibid.
1206 Id., at 265.
1207 Id., at 266.
1208 Ibid.
337
is empowered to interpret the Convention. In Soering v. United

Kingdom,1209 it held that Article 3 of the ECHR prohibits refoulement to
countries where there are “substantial grounds to believe that the
individual would face a real risk of torture or to be subjected to
inhuman or degrading treatment or punishment”.1210 The protections of
Article 3 cannot be derogated even in time of war or other public
emergency. Nor can even the highest interests of the public, such as to
fight terrorism or to protect national security justify State actions that
would breach Article 3. Furthermore, the protections of Article 3 of the
ECHR are available to everyone, regardless of their character or their
past criminal conduct.1211 Moreover, claims that the applicant will be ill
treated by private, as well as public actors, may give rise to a non
refoulement obligation under Article 3 if the evidence shows that the
State would be unable to protect the applicant from the private actors
concerned.1212 To obtain protection against refoulement under Article 3,
the individual must present a credible claim containing sufficient facts
and circumstances to show that he will be subjected to a real risk of
torture or ill treatment in the country of return. The initial burden of
presenting evidence of a real risk is on the applicant, after which the
State has the burden of assessing the claim and gathering any additional
relevant information regarding it. The necessary risk level is a real,
personal, foreseeable or likely risk which goes beyond a mere
possibility.1213
1209 161 Eur. Ct. H.R. (ser. A) at 35. In this case, the applicant named Jens Soering,
a West German national, alleged that the decision by the Secretary of State for
the Home Department of the United Kingdom to extradite him to the United
States of America to face trial in Virginia on a charge of capital murder would,
if implemented, give rise to a breach by the United Kingdom of Article 3 of the
ECHR. If he was sentenced to death, he would be exposed to the so called “death
row phenomenon”. He also complained of a breach of Article 13 of the ECHR, in
that he had no effective remedy in the United Kingdom in respect of his
complaint under Article 3 and of Article 6. The Commission found a breach of
Article 13 but no breach of either Article 3 or Article 6. The case was referred to
the Court by the Commission and the Governments of the United Kingdom
and of the Federal Republic of Germany.
1210 Available at: http://www.eji.org/files/Soering%20v.%20United%20Kingdom.pdf
(Visited on August 6, 2015). Article 3 of the ECHR provides that no one shall be
subjected to torture or to inhuman or degrading treatment or punishment.
1211 Supra note 120, at 267.
1212 Id., at 268.
1213 Ibid.
338
As is the case with the other treaties, the State parties have primary
responsibility for ensuring that the rights and guarantees of the ECHR
are provided to persons within their jurisdiction. Claims alleging
breaches of the convention’s terms must first be brought before
national courts. However, of the treaties discussed, the ECHR provides
for significantly more binding oversight of State practices as regards
treaty interpretation and enforcement. All State parties to the ECHR are
automatically subject to the jurisdiction of the European Court of
Human Rights. In addition, both States and individuals are entitled to
bring claims alleging breaches of the convention’s terms. The European
Court of Human Rights in Strasbourg has jurisdiction over all such
claims as long as all domestic remedies have been exhausted.1214
Unlike the decisions of the bodies responsible for overseeing the
other treaties discussed above, the decisions of the European Court of
Human Rights are binding on the parties to the claim. State compliance
with the court’s judgments is monitored by the Committee of Ministers
of the Council of Europe. However, even if the court determines that
refoulement is prohibited by Article 3 of the Convention, it will not
specify what legal status the State should accord to the applicant. 1215
After discussing the relevant provisions of various international
conventions, it can be concluded that the right to claim asylum is not
absolute. To a great extent, it depends upon the discretion of the State
in which asylum is sought. The language of the relevant international
conventions, interpretations of that language, and State practice, all
generally indicate that pirates who are convicted of violent crimes
should not be eligible for asylum or complementary forms of protection
against refoulement.1216 Nevertheless, the risk of asylum claims and the
difficulties associated with adjudicating them are burdens that
developed nations face in any event.1217 However, captured pirates
should not be able to escape justice simply because developed nations
do not wish to deal with a relatively few additional asylum claims.
Prosecuting pirates who have committed violent acts that disrupt
1214 Id., at 269. Article 35(1) of the ECHR provides that the Court may deal with the
matter after all domestic remedies have been exhausted, according to the
generally recognised rules of international law, and within a period of six months
from the date on which the final decision was taken.
1215 Id., at 270.
1216 Id., at 292.
1217 Id., at 294.
339
international transport and harm innocent seafarers is necessary to

actually deter pirates from continuing to commit those violent crimes.
Western nations generally have the expertise, institutions and funds
required to prosecute pirates, and they should not be permitted to assert
the fear of asylum claims as a reason for refusing to prosecute captured
pirates in their own courts. Even if there is some risk of asylum claims,
that risk is outweighed by the duty to ensure that violent criminals are
brought to justice and that future violent acts are deterred. Furthermore,
that risk is one that must be assumed if States are to live up to their
obligations under international law.1218
1218 Id., at 295.
340
CHAPTER – VIII:
PIRACY AT SEA:
INDIAN SCENARIO
“To be secure on land, we must be supreme at Sea”.
Jawaharlal Nehru 1219

India is primarily a maritime nation. Nearly 90% of our international
trade by volume and 77% by value is seaborne. Therefore, the
importance of maritime security, from global as well as national
perspective, cannot be understated. There are diverse threats to global
as well as national maritime security. Of these, maritime piracy and
terrorism are the most significant. Busy shipping lanes of the Indian
Ocean which pass through several choke points, as well as weak
governance and limitations in terms of maritime capability in some
coastal States, provide a conducive environment for maritime piracy
and terrorism to strive.1220 India has a 7517 km long coastline that runs
through nine States1221 and four Union Territories.1222 The Exclusive
Economic Zone of India is spread over an area of 23,05,143 sq km of
water. Thus, we are particularly open to attack from the maritime
domain. India’s coasts have always been vulnerable to anti national
elements. Numerous cases of smuggling of goods, gold, narcotics,
explosives, arms and ammunition through these coasts have been
reported over the years. The susceptibility of the coasts is primarily
because of the topography of the coastline, which is further
1219 The First Prime Minister of independent India. Available at: http://nausena-
bharti.nic.in/why_do_we_need_a_navy.php (Visited on January 16, 2015).
1220 Admiral Nirmal Verma (The 20th Chief of the Naval Staff), Foreword to Bimal
Challenges and Solutions) (Eastern Book Company, Lucknow, 2012).
1221 These States are Andhra Pradesh, Goa, Gujarat, Karnataka, Kerala, Maharashtra,
Orissa, Tamil Nadu and West Bengal.
1222 These Union Territories are Andaman and Nicobar Islands, Daman and Diu,
Lakshadweep and Puducherry.
compounded by the existence of vital strategic installations like oil rigs

and nuclear stations along these coasts.1223
8.2 ANTI PIRACY LAWS IN INDIA

In India, there exist no statutes specifically dealing with anti piracy
or maritime security measures,1224 except the colonial legislations on
admiralty jurisdiction passed by the British Parliament over 160 years
ago and which continue to be in force by virtue of Article 372 of the
Constitution of India.1225
8.2.1 The Colonial Indian Laws

Three colonial legislations which were enacted by the British in
order to criminalize piracy and punish pirates in India are the Admiralty
Offences (Colonial) Act, 1849, the Admiralty Jurisdiction (India) Act,
1860 and the Colonial Courts of Admiralty Act, 1890.1226
8.2.2 The Constitution of India, 1950

Interestingly, piracy finds a specific enumeration in the Seventh
Schedule to the Constitution of India, as piracies and crimes committed
on the high seas or in the air; offences against the law of nations
committed on land or the high seas or in the air.1227 This entails that the
power to legislate on these matters has been expressly vested in the
Union Parliament, though no law has been enacted by the Parliament so
far.1228
1223 V. Srilatha, “India’s Coastal Security” 30 IOD 81 (2012).

1224 Except that under the Navy Act, 1957, the term enemy also includes pirates.
Similarly, the Merchant Shipping Act, 1958, also makes some provisions for
security from piracy.
1225 Available at: http://india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
(Visited on August 16, 2015). Article 372(1) of the Constitution of India provides
that, “notwithstanding the repeal by this Constitution of the enactments referred
to in Article 395, but subject to the other provisions of this Constitution, all the
laws in force in the territory of India immediately before the commencement of
this Constitution shall continue in force therein until altered or repealed or
amended by a competent legislature or other competent authority”.
1226 For details see Chapter V, “Law of Sea: Indian Scenario”.
1227 Supra note 7. Entry 21 of List I of the Constitution of India, 1950.
1228 Ibid. The Admiralty Bill, 2005, was introduced in the Lok Sabha on 11th May
2005, to consolidate and amend the existing laws relating to admiralty
jurisdiction (i.e. jurisdiction of laws relating to shipping), to vest civil
jurisdiction with the High Courts, and to lay down the scope of admiralty
342
8.2.3 The Navy Act, 1957

Under the Navy Act, 1957, enemy includes all armed rebels, armed
mutineers, armed rioters and pirates and any person in arms against
whom it is the duty of any person subject to naval law to act.1229 If the
Commanding Officer of a naval vessel fails to pursue the enemy, whom
it is his duty to pursue, then the punishment prescribed for him may
range from imprisonment extending up to seven years; or if such act is
committed to assist the enemy, he may even be punished with death.1230
The regulations for the Navy, dated 1st May 1991, derived from the
Navy Act, 1957 clearly state that if any armed vessel, not having
commission as a warship from a recognized government, whether de
facto or de jure, should commit piratical acts and outrages against the
vessels or goods of India’s citizens or of the subjects of any other
foreign power in amity with India, and if credible information should
be received thereof, such armed vessel shall be seized and detained by
any of the Indian naval ships falling in with her, and sent to the nearest
Indian port where there is a court of competent jurisdiction for the trial
of offences committed on the high seas, together with the necessary
jurisdiction. It proposed to repeal the Admiralty Offences (Colonial) Act, 1849,

the Admiralty Jurisdiction (India) Act, 1860, the Admiralty Courts Act, 1861, the
Colonial Courts of Admiralty Act, 1890, the Colonial Courts of Admiralty
(India) Act, 1891, and the provisions of the Letters Patent, 1865 applicable to the
admiralty jurisdiction of the Bombay, Calcutta and Madras High Courts. It
proposed that admiralty jurisdiction will rest with the concerned High Court. The
High Court may, after consulting with the Chief Justice of India, confer
jurisdiction to the principal civil courts of the state if there are too many cases
filed. The Supreme Court may transfer proceedings from one High Court to
another. However, this Bill could not be passed with requisite majority in Lok
Sabha and thus, lapsed. Similarly, the Piracy Bill, 2012, was introduced in the
Lok Sabha on 24th April 2012, with the object of making piracy a substantive
criminal offence under Indian law. It provided for empowering the government
to set up designated courts for speedy trial of piracy offences and authorize the
courts to prosecute the accused regardless of his/her nationality. However, with
the dissolution of Lok Sabha in May 2013, this Bill also lapsed and could not see
the light of the day. For details of these Bills, see Chapter V, “Law of Sea: Indian
Scenario”.
1229 Available at: https://www.icrc.org/applic/ihl/ihl-
nat.nsf/0/bd55b66a3b09ca08c12576b9002cbfe4/$FILE/NAVY%20ACT%201957.
pd f (Visited on August 16, 2015). Section 3(7) of the Navy Act, 1957.
1230 Ibid. Section 34 of the Navy Act, 1957.
343
witnesses, to prove the act or acts and with her master and crew in safe
custody, in order that they may be dealt with according to law.1231
8.2.4 The Merchant Shipping Act, 1958

The Merchant Shipping (Amendment) Act, 2007, has inserted into
the Merchant Shipping Act, 1958, certain provisions that are relevant as
far as anti piracy measures are concerned.1232 It provides that “security
means maritime security and includes any measure to protect ports or
ships or any person or thing relating directly or indirectly to maritime
navigation-
I. against terrorism, sabotage, stowaways, illegal migrants, asylum
seekers, piracy, armed robbery, seizure or pilferage; and
II. against any other hostile act or influence which threatens the
security in the maritime transport sector;
employed by the owners or operators or persons in charge of the
vessels or management of port facilities, offshore installations and
other marine organisations or establishments.1233
The amendment of 2007 also inserted Part IX – B titled “Security of
Ships and Port Facilities” which contains Sections 344-J to 344-T,
dealing with security provisions which are aimed at reducing and
preventing the risk of pirate attacks on Indian ships.1234
Jurisdiction of States” in Bimal N. Patel and Hitesh Thakkar (eds.), Maritime
Security and Piracy (Global Issues, Challenges and Solutions) 113 (Eastern
Book Company, Lucknow, 2012).
1232 Ibid.
1233 Ibid. Section 3(44-A) of the Merchant Shipping Act, 1958.
1234 Ibid. Section 344-J(1) of the Merchant Shipping Act, 1958, provides that subject
to sub-section (2), this Part shall apply to - (a) the following types of ships
engaged on international voyages, namely: (i) passenger ships including high
speed passenger craft; (ii) cargo ships including high speed craft of five hundred
gross tonnage and above; (iii) mobile offshore drilling units: Provided that the
Central Government may extend the application of this Part to those ships which
are exclusively engaged on coastal voyages; (b) the port facilities serving ships
referred to in clause (a). Provided that the Central Government may, after taking
decision, on the basis of port facility security assessment having carried out
under this Part, extend the application of this Part to those port facilities which,
although used primarily by ships not engaged on international voyages, are
occasionally required, to serve ships arriving or departing on international
voyages. Section 344J-(2) provides that this Part shall not apply to war ships,
naval auxiliaries, or other ships owned or operated by the Central Government
and used only for non- commercial service by that Government.
344
8.2.5 The Indian Penal Code, 1860

Even in the absence of specific offences under the Indian Penal
Code dealing with piracy, the Indian courts are empowered to try
piratical offences in accordance with the provisions of the IPC. There
are a number of offences that a pirate could be tried for, including
murder (if committed),1235 rape (if committed),1236 hurt (if caused),1237
Section 344-L(1) provides that the Central Government or the designated authority,
as the case may be, shall provide every Indian ship of one hundred gross tonnage
and above and every Indian cargo ship of three hundred gross tonnage and
above, a ship identification number, which conforms to the relevant scheme
formulated by the International Maritime Organisation. Section 344L-(2)
provides that all the certificates issued under this Act and all certified copies
thereof shall bear the ship identification number.
Section 344-M(1) provides that the Central Government or the designated authority,
as the case may be, shall set security levels taking into consideration human
element such as shore leave and provide information thereof to all the Indian
ships, as may be prescribed. Section 344-M(2) provides that the Central
Government or the designated authority, as the case may be, shall set security
levels and provide information thereof to port facilities within India and to every
ship prior to entering an Indian port or while in a port within India, as may be
prescribed: Provided that the Central Government may authorise any recognised
security organisation to carry out any of the security measures under this section,
on behalf of it, with such conditions as may be prescribed.
Section 344-N provides that the Central Government shall carry out port facility
assessment in the manner as may be prescribed.
Section 344-O provides that every company, ship or port facility shall comply with
the relevant requirements under the Safety Convention and the International
Code for the Security of Ships and Port Facility.
Section 344-P provides that every port facility in India shall comply with the
requirements of this Part or the rules made there under.
Section 344-Q provides that the Central Government or the designated authority or
the authorised person, as the case may be, shall issue every Indian ship to which
this Part applies, an International Ship Security Certificate or an Interim
International Ship Security Certificate, as the case may be, in the form and
manner as may be prescribed.
Section 344-R provides that every Indian ship shall be provided with such Ship
Security Alert System, as may be prescribed.
Section 344-S provides that every ship to which this Part applies shall be subject to
such control measures as may be prescribed.
Section 344-T(1) provides that the Central Government may, having regard to the
provisions of the Safety Convention, make rules to carry out the purposes of this
Part.
1235 Section 302 of the IPC.
345
grievous hurt (if caused),1238 robbery,1239 dacoity,1240 abduction for

ransom,1241 assault,1242 extortion,1243 trespass,1244 wrongful restraint,1245
wrongful confinement1246 and so on.1247
8.3 ANTI PIRACY AND MARITIME SECURITY MEASURES

Rear Admiral Alfred Thayer Mahan of the United States Navy had
aptly quoted that “Whoever controls the Indian Ocean, dominates Asia.
Whoever attains maritime supremacy in the Indian Ocean would be a
prominent player on the international scene. This ocean is the key to
the seven seas. In the twenty first century, the destiny of the world will
be decided on its waters”.1248
The Indian Ocean is the birthplace of maritime civilizations and is
considered to be one of the most prominent international maritime
zones. The Indian Ocean region expands over an area of 68 million
square kilometres and encompasses within its ambit 20% of the Earth’s
water, three continents (Asia, Africa and Australia), 30 coastal States,
11 landlocked States, 1284 islands and strategic reserves of oil. Being
located at the centre of the Indian Ocean region, India plays a vital role
in the security of the Indian Ocean region. Indian security concerns
encompass very wide spectrum, i.e., from global to regional to local
level. Due to the complex nature and immense size of India’s maritime
domain, it is particularly susceptible to exploitation and disruption by

1241 Section 364-A of the IPC.
1242 Section 352 and 357 of the IPC.
1247 Supra note 13.
1248 Available at: http://ciesjsia.blogspot.in/2014/11/indian-ocean-21st-century-
security.html (Visited on May 2, 2015).
346
pirates.1249 Therefore, India has adopted several anti piracy and

maritime security measures which are discussed hereunder:
8.3.1 India’s Bilateral Agreements to Combat Piracy

India has entered into bilateral agreements with many countries in
order to combat the menace of piracy. Addressing the first ever
ASEAN (Association of South East Asian Nations) plus Eight Defence
Ministers meeting in the Vietnam Capital Hanoi on 12th October 2010,
the then Defence Minister of India, Mr. A.K. Antony called for the
adoption of cooperative approaches for ensuring the security of sea
lanes in the Asia Pacific region.1250 During his visit to Ethiopia in 2010,
the then Prime Minister of India, Dr. Manmohan Singh remarked that
India is ready as a littoral State of the Indian Ocean to work with
Ethiopia and other African countries to deal with the menace of piracy
and restore stability in Somalia.1251 Some notable bilateral agreements
entered into by India with foreign countries in order to combat piracy
are mentioned hereunder:
I. An agreement to enhance cooperation between India and
Seychelles in the fight against piracy was the result of the two day visit
to Seychelles by the then Defence Minister of India, Mr. AK Antony in
2010. India and Seychelles also agreed to enhance cooperation in
maritime security. Apart from deploying a Dornier Maritime Patrol
Aircraft at Seychelles’ Capital Victoria, India has also provided
Seychelles with two Chetak maritime helicopters for its anti piracy
patrol tasks in the Indian Ocean region and for guarding its exclusive
economic zone.1252 India has worked to enhance Maritime Domain
Awareness (MDA) and Search and Rescue capacity building in
Seychelles. India has traditionally been the main defence provider for
Seychelles, providing armaments and training to the Seychelles’
People’s Defence Forces. In 2014, India gifted a naval ship INS Tarasa
1249 Ramanand Garge, “Maritime Security of India in The 21st Century” in Bimal N.
Patel and Hitesh Thakkar (eds.), Maritime Security and Piracy (Global Issues,
1250 Bimal N. Patel, Aruna Kumar Malik, et.al., “Integrated Maritime Defence Policy
And Strategy of India: Some Critical Ideas For Preparing The Blue Print For
India” in Bimal N. Patel and Hitesh Thakkar (eds.), Maritime Security and
Lucknow, 2012).
1251 Ibid.
1252 Id., at 296.
347
to Seychelles to augment surveillance and patrolling capacity of

Seychelles’ waters that covers an EEZ of over 1.3 square kilometres.
The ship was rechristened PS Constant upon induction into the fleet of
the Seychelles Coast Guard. It is the second Indian naval ship to be
gifted to Seychelles after PS Topaz in 2006. Seychelles’ President
James Michael during his visit to India in 2010 acknowledged India's
help to his country. He remarked that “India was the first country which
came to Seychelles' assistance in the fight against piracy. We greatly
appreciate the continued support of the government and people of
India. India is our ideal partner. We need to build bridges to connect
our countries and bring our people together”.1253
II. At the third Sino-Indian Annual Defence Dialogue in Beijing in
2010, India and China decided to carry on high level exchanges and
send officers for courses in each other’s military training institutes for
information sharing in conducting anti piracy measures in the Gulf of
Aden. In April 2009, four Indian warships visited Quindago Naval Base
in China for the Chinese International Fleet Review and the Chinese
warship Schenzan visited Kochi Naval Base in India for an anti piracy
drill.1254 In 2012, India, China and Japan entered into a mutual
agreement to share their naval assets in the Gulf of Aden for anti piracy
operations.1255
III. From 20th October to 7th November 2014, South Africa hosted
the India, Brazil and South Africa Maritime (IBSAMAR) Exercise. The
exercise started with the arrival of the Indian Navy Frigate INS Teg and
Brazilian Navy Ship BNS Barrosso. This was the fourth exercise in a
series started in 2008. It includes anti piracy drills, search and seizure
operations and anti aircraft and anti submarine exercises. IBSAMAR
has the overall concept to conduct an advanced maritime exercise over
a significant period at sea, in order to enhance the levels of
interoperability in a tactical environment between the participating
1253 Available at: https://in.news.yahoo.com/battling-piracy-india-seychelles-

025446038.html (Visited on May 5, 2015).
1255 Available at: http://thediplomat.com/2012/03/india-china-and-the-pirates/
(Visited on May 5, 2015). Under this agreement, India, China and Japan decided
to share information about their warship movements and escort schedules in the
Gulf of Aden. By putting in place this co operative mechanism, the three Asian
giants are hoping to optimize the use of their naval forces to safely escort
merchant ships in the piracy infested corridor.
348
maritime forces.1256 During the IBSA summit in Brazil in April 2010, all
three countries decided to establish a trilateral satellite programme for
general observation, including anti piracy operations such as
monitoring sensitive shipping lanes and land borders, in order to
prevent coastal and land frontier incursions by profiteers like illicit
arms traffickers, drug smugglers and pirates.1257
IV. At a seminar organized in New Delhi in 2011 for talks between
the Danish Ship Owners Association and the Indian National Ship
Owners Association, the issues of tackling piracy jointly and enhancing
the supply of Indian seafarers for the ship owners figured prominently.
Earlier in 2010, a discussion on maritime training and education took
place at the India-Denmark Joint Commission for Co operation in New
Delhi. The Joint Working Group on Shipping formed under this
Commission decided to explore the possibilities of co operation in
areas such as best practices in ship design and maritime training and
education. Mr. Brian Mikkelsen, the Danish spokesperson, opined that
piracy is a real threat to the maritime world and the maritime industries.
Therefore, it is essential to combine bilateral efforts to fight piracy. He
also emphasized on the need of education and training for seafarers.1258
V. Mr. Mwai Kibaki, the then President of Kenya, speaking at the
Second India-Africa Forum Summit, 2011 in Addis Ababa, identified
piracy, toxic waste dumping and illegal fishing as among the many
challenges facing the Horn of Africa. He acknowledged that India is
likely to help Kenya to prosecute pirates and contribute more towards
the safety of sea lanes between the east coast of Africa and the west
coast of India. Instead of arresting more and more pirates and bringing
them to the Indian mainland for trial, the Indian Navy was suggested at
this summit to deploy a strategy to “hold, disarm and leave pirates”, by
taking away the piracy triggering items such as rope, ladder, arms and
ammunition.1259
VI. On 14th September 2011, India pledged 8 million US Dollars to
Somalia, Kenya and Djibouti as a relief from the ravaging famine
affecting these areas. The External Affairs Ministry also stated that
1256 Available at: http://navaltoday.com/2014/10/28/south-africa-leads-ibsamar-ex-

2014/ (Visited on May 5, 2015).
1258 Id., at 298.
1259 Ibid.
349
India would provide assistance to Somalia for developing a counter

piracy strategy.1260
VII. In 2011, talks between Admiral Vladimir Sergeevich Vysotskiy,
the then Commander in Chief of the Russian Navy and Admiral Nirmal
Verma, the then Chief of the Indian Navy explored the possibilities for
the two Navies to co operate in fighting piracy. The possibility of
regularising the Navy to Navy interaction with staff talks and the
feasibility of enhancing the scope of joint Naval exercises between the
two countries was also taken up.1261
8.3.2 India and The United Nations

India plays a great role in co operating with various international
organizations, particularly the United Nations, to combat piracy. On
26th January 2011, India’s Permanent Representative to the United
Nations proposed the following five point plan to the UN Security
Council to tackle the problem of piracy off the coast of Somalia:
I. Reinforcement of tracking the trail of ransom money to different
parts of the world, as entrusted to the Interpol.1262
II. Prosecution of the beneficiaries of ransom money for abetting
piracy.1263
III. Consideration of the conduct of multinational naval operations
under the United Nations as a preferred option.1264
IV. Sanitization of the Somali coastline through identified corridors
and buffer zones and tracking the fishing vessels around the Somali
coast.1265
V. Enactment of national laws on priority to criminalize piracy as
defined in the United Nations Convention on Law of the Sea, 1982, and
the prosecution of suspected and imprisonment of convicted pirates
apprehended off the coast of Somalia as required under the UN
Security Council Resolution 1918 of 2010.1266
1260 Id., at 299.

1261 Ibid.
1262 Ibid.
1263 Ibid.
1264 Ibid.
1265 Id., at 300.
1266 Ibid.
350
8.3.3 India and Regional Organizations

India is also working with ASEAN (Association of South East Asian
Nations) and other regional organizations to ensure security of sea
lanes against threats posed by piracy and other transnational crimes and
also for capacity building in the field of maritime security.1267 The
Regional Co Operative Agreement Against Piracy and Armed Robbery
in Asia (ReCAAP), 2004, holds great significance for Asia as it was the
first government to government agreement to co operate in efforts as a
region against piracy and armed robbery at sea. This agreement was
finalised on 11th November 2004 by the ASEAN States. India is a
founding member of the ReCAAP.1268 It came into force on 4th
September 2006, after ratification by ten States. As of 2015, twenty
States have become contracting parties to this agreement. The ReCAAP
Information Sharing Centre (ReCAAP ISC) was established under the
Agreement, and was officially launched in Singapore on 29 November
2006. It was formally recognised as an international organisation on 30
January 2007.1269 The roles of the ReCAAP ISC are mentioned
hereunder:
I. To serve as a platform for information exchange with the
ReCAAP focal points via the Information Network System; facilitate
communications and information exchange among participating
governments to improve incident response by member countries;
analyse and prove accurate statistics of piracy and armed robbery
incidents to foster better understanding of the situation in Asia.1270
II. To facilitate capacity building efforts that help improve the
capability of member countries in combating piracy and armed robbery
in the region.1271
1267 Id., at 302.

1268 Rajashree Rajan, “Regional Efforts Against Piracy in South East Asia and The
Indian Subcontinent” ITLOS 12 (2011). Available at:
https://www.academia.edu/1287852/Regional_Efforts_Against_Piracy_in_South
east _Asia_and_the_Indian_Subcontinent (Visited on May 7, 2015).
1269 Ibid.
1270 Available at: http://www.recaap.org/AboutReCAAPISC.aspx (Visited on May 7,
2015). The twenty Contracting Parties to ReCAAP are Australia, Bangladesh,
Brunei, Cambodia, China, Denmark, India, Japan, Korea, Laos, Myanmar,
Netherlands, Norway, Philippines, Singapore, Sri Lanka, Thailand, United
Kingdom, United States of America and Vietnam.
1271 Ibid.
351
III. To co operate with various organizations and like minded parties

on joint exercises, information sharing, capacity building programmes
and other forms of co operation as deemed appropriate and agreed upon
by the contracting parties.1272
The ReCAAP ISC facilitates exchange of information among the
ReCAAP Focal Points through a secure web based Information
Network System. Through this network, the ReCAAP Focal Points are
linked to each other as well as the ReCAAP ISC on a 24/7 basis, and
are able to facilitate appropriate responses to incidents of piracy.1273 The
agency receiving the incident report will manage the incident in
accordance to its national policies and response procedures and provide
assistance to the victim ship if possible. The agency will in turn, inform
their ReCAAP Focal Point, which will submit an incident report to the
ReCAAP ISC and its neighbouring Focal Points.1274
8.3.4 Indian Ocean Naval Symposium

The Indian Ocean Naval Symposium (IONS) was established in
2008 as a consequence of the meeting of the Chiefs of Navy of the 35
coastal States of the Indian Ocean region in New Delhi. The IONS is a
voluntary initiative that seeks to increase maritime co operation among
navies of the littoral states of the Indian Ocean Region by providing an
open and inclusive forum for discussion of regionally relevant maritime
issues. In the process, it endeavours to generate a flow of information
between naval professionals that would lead to common understanding
and possibly co operative solutions on the way ahead.1275
The Charter of Business of the IONS is to provide a framework to
promote shared understanding of maritime issues facing the coastal
States of the Indian Ocean region, enhance regional maritime security
and stability, establish and promote variety of co operative mechanisms
and develop inter operability in terms of doctrines, procedures, etc.1276
1272 Ibid.
1273 Ibid.
1274 Ibid.
1275 Available at: http://ions.gov.in/about_ions (Visited on May 7, 2015). Member
countries of the IONS are Australia, Bahrain, Bangladesh, Comoros, Djibouti,
Egypt, Eritrea, France, India, Indonesia, Iran, Iraq, Kenya, Kuwait, Madagascar,
Malaysia, Maldives, Mauritius, Mozambique, Myanmar, Oman, Pakistan, Qatar,
Saudi Arabia, Seychelles, Singapore, Somalia, South Africa, Sri Lanka, Sudan,
Tanzania, Thailand, Timor Leste, United Arab Emirates and Yemen.
352
The IONS, an inclusive and consultative regional forum, thus provides

a platform for all Indian Ocean region littoral navies to periodically and
regularly discus issues that bear upon regional maritime security.1277
The symposium is held after every two years. The fourth IONS was
held at Perth, Australia, on 26th March 2014, and was chaired by Vice
Admiral Ray Griggs, Chief of the Australian Navy.1278
8.3.5 India’s Maritime and Coastal Security Plan

India’s coasts have always been vulnerable to anti national activities.
Numerous cases of the smuggling of goods, gold, narcotics, explosives,
arms and ammunition as well as the infiltration of terrorists into the
country through these coasts have been reported over the years. The
Government had been aware of the activities that are carried out
through the country’s coasts and had been implementing corrective
measures from time to time. There is a multi tier arrangement for
protection and maritime security of the country involving the Indian
Navy, Coast Guard and Marine Police of the coastal States and Union
Territories. The surveillance on the high seas is carried out along the
limits of the exclusive economic zone (EEZ) by the Indian Navy and
the Coast Guard. In the territorial waters, the Coast Guards protect the
Indian interests with vessels and through aerial surveillance. Coastal
patrolling close to shallow waters is done by State Marine Police.1279
Keeping in view the vulnerability of the coasts to the activities of
criminals and anti national elements, a Coastal Security Scheme Phase I
was formulated in 2005. The Scheme was approved in January 2005 for
implementation for 5 years. The Scheme was extended for one year till
March 2011. During the implementation of Coastal Security Scheme
Phase I, various Coastal Security measures including supply of
interceptor boats were undertaken.1280
1277 Id., at 301.

1278 Available at: http://ions.gov.in/?q=content/indian-ocean-naval-symposium-2014
(Visited on May 7, 2015).
1279 Available at: http://164.100.47.134/intranet/Coastal_Security.pdf (Visited on
May 8, 2015).
1280 Ibid. The scheme had an outlay of 646 crore rupees for 6 years. Coastal
States/Union Territories were provided with 73 Coastal Police Stations, 97
Checkposts, 58 Outposts and 30 Barracks, equipped with 204 boats, 153 Four
Wheelers, 312 Motorcycles and 10 Rubber Inflatable Boats. It envisaged state of
the art police stations in all coastal States and Union Territories at an estimated
expenditure of 18 to 21 lakh each. Construction work of coastal police stations,
353
Subsequent to the terrorist attacks on Mumbai in November 2008,

the coastal security arrangements have been thoroughly reviewed by
the Government of India.1281 The Standing Committee on Defence,
while assessing these terrorist attacks, rapped the Indian Government
for the lack of co ordination between the Indian Navy and the Coast
Guard that led to a national catastrophe. A maritime security plan was
initiated that stressed on optimum funding and allocation of clear
responsibilities for coastal security to plug gaps within a definite
timeframe by speedy implementation. It was proposed to set up a
Maritime Security Advisory Board (MSAB) and a Coastal Command
(CC) to establish effective functional linkages and mechanisms across
the entire maritime domain. The MSAB would have a maritime
security advisor as its chief while the CC would be headed by the Coast
Guard Director General. The MSAB was to act as a single window
apex federal agency to handle all maritime security issues, including
cohesive policy making and coordination among different agencies and
report to the national security advisor. The CC was to act like a
coordinating body with a strengthened Coast Guard at its epicentre.1282
barracks, check posts, outposts and procurement of vehicles was required to be

done by Coastal States/Union Territories. Further, a lump sum assistance of 10
lakh per Coastal Police Station was also given for computers and equipments etc.
1281 Ibid. In November 2008, 10 Pakistani terrorists of Lashkar-e-Taiba, an Islamic
militant organization, carried out a series of twelve coordinated shooting and
bombing attacks lasting four days across Mumbai. Ajmal Kasab, the only
attacker who was captured alive, later confessed upon interrogation that the
attacks were conducted with the support of Pakistan Government's intelligence
agency Inter Services Intelligence (ISI). The attacks, which drew widespread
global condemnation, began on 26th November and lasted until 29th November
2008, killing 166 people and wounding at least 308. Eight of the attacks occurred
in South Mumbai: at Chhatrapati Shivaji Terminus, the Oberoi Trident, the Taj
Mahal Palace & Tower, Leopold Cafe, Cama Hospital, the Nariman
House Jewish community centre, the Metro Cinema and in a lane behind
the Times of India building and St. Xavier's College. There was also an
explosion at Mazagaon, in Mumbai's port area, and in a taxi at Vile Parle. By the
early morning of 28th November, all sites except for the Taj hotel had been
secured by Mumbai Police and security forces. On 29th November,
India's National Security Guards (NSG) conducted “Operation Black Tornado”
to flush out the remaining attackers. It resulted in the deaths of the last remaining
attackers at the Taj hotel and ending all fighting in the attacks.
354
However, no progress has been made till date regarding the MSAB and
CC.1283
Nevertheless, the Cabinet Committee for Security (CCS) vested the
Indian Navy with the overall responsibility for maritime security and to
play the primary role in all maritime matters. The Navy was given the
responsibility of maritime security beyond 200 nautical miles. The
Coast Guard was made responsible for security from 12 nautical miles
to 200 nautical miles. The new coastal police stations or the Marine
Police were made responsible for security up to 12 nautical miles from
the coast, as well as on the shore. All coastal States and Union
Territories were also suggested to have their own maritime security
bodies.1284
Phase II of the Coastal Security Scheme commenced in April 2011.
It is being implemented over a period of five years (2011-2016) with a
total financial outlay of 1579.91 crore rupees (1154.91 crore for non
recurring expenditure and 425 crore for recurring expenditure) through
nine coastal States and Union Territories. Other salient features of this
scheme include the setting up of another 131 coastal police stations
across all coastal States and Union Territories, equipped with 180 boats,
60 jetties, 35 rigid inflatable boats, 131 four wheelers and 242
motorcycles. A lump sum assistance of 15 lakh rupees per coastal
police station is also provided for surveillance equipment, computer
systems and furniture. Physical policing of the coastline and territorial
sea by the Navy, Coast Guard and Marine Police is just one dimension
of the coastal security scheme. There are many difficulties in
implementing this scheme as it involves the monitoring of 3331
designated coastal villages, thousands of fishing boats, and securing
dozens of major and non major ports and harbours.1285 Therefore, the
following additional efforts have been made to ensure coastal security:
1283 Id., at 85. The proposal to have a Maritime Security Advisory Board headed by a
Maritime Security Advisor on the line of the National Security Advisory Board
has been scuttled by the powerful lobby of IAS officers who do not want the
Armed Forces to get such an important post. According to a senior defence
ministry official the problem arose over the issue of precedence and seniority. A
Joint Secretary rank IAS officer is the Director General Shipping and at present
he can order around senior officials of the armed forces. He cannot see himself at
a subordinate level to a three star Admiral of the Indian Navy.
1284 Ibid.
1285 Id., at 89.
355
I. The Government of India has decided to set up two Marine Police

Training Institutes (MPTI), one each on the East Coast and the West
Coast in order to impart training to Marine Police Personnel.1286
II. Monitoring and assessment of the coastal security system is an
ongoing process. National Committee on Strengthening Maritime and
Coastal Security (NCSMCS), under the Chairmanship of Cabinet
Secretary monitors the progress in respect of coastal security initiatives.
In addition, coastal security exercises are followed by conduct of
debriefing and sharing of lessons learnt between all the stakeholders
along with interactions with fishermen and State agencies through
coastal security awareness programs. The coastal security exercises and
review are ongoing processes which ensure inter operation and
seamless coastal security.1287
III. Ministry of Shipping has been mandated to streamline the
process of compulsory registration and identification of all types of
vessels. Boats larger than 20 feet require an Auto Identification System,
without which they would be treated as potentially unfriendly vessels.
During a security drill before American President Barack Obama’s visit
to India, the Mumbai Police found that hundreds of small unregistered
boats were lying scattered around 56 different landing points in
Mumbai alone, which presented a huge security risk. Hence the
Ministry of Shipping is streamlining the process of compulsory
registration even for boats below 20 feet.1288
IV. Department of Animal Husbandry and Fisheries has been
mandated to issue biometric identity cards to all fishermen. The lists of
coastal villages are finalized in consultation with the respective
States/Union Territories. Identity cards are to be issued to all the usual
residents of these villages who are 18 years of age and above.1289
V. The Coast Guard has been mandated to create a chain of radar
sensors along the Indian coastline.1290
VI. The Indian Navy has set up 4 joint operation centres at Mumbai,
Viskhapatanam, Kochi and Portblair under the charge of existing naval
Commander in Chief as the Commander in Chief Coastal Defence.1291
1286 Supra note 61.

1287 Ibid.
1289 Ibid.
1290 Supra note 61.
1291 Ibid.
356
VII. A Sagar Prahari Bal with a special force comprising of 1000

specialized personnel and 80 Fast Interceptor Crafts for force security
protecting of naval bases has been raised.1292
8.3.6 Role of Indian Navy in Combating Piracy

Though maritime power is not singularly about the Navy, there is no
doubt that it plays the pivotal role. It must be appreciated that maritime
strategy has a peacetime dimension also. All over the world, Navies
have been noted for their versatility and in particular, their utility in
situations short of conflict. This versatility comes from the
characteristics of reach and endurance, the ability to threaten and apply
force in a finely graduated way, and the fact that warships are
considered diplomatic instruments, unlike any other kind of armed
vehicles like fighter jets and tanks. Great maritime powers have always
understood and fully exploited these unique characteristics of the Navy
to achieve their political and strategic objectives. The traditional roles
of the Navy could be classified into four broad categories, i.e., policing,
diplomatic, crisis and military. These roles are naturally weighted by
various countries to meet their prevailing maritime interests. In the
present environment, it can easily be said that the policing and
diplomatic roles are more predominant.1293
The Indian Navy is the maritime branch of the armed forces of India.
It is the world’s fourth largest Navy, having 181 commissioned vessels,
including two Aircraft Carriers, 212 operational fighter aircraft and
58,350 active personnel. Though the primary objective of the Navy is to
secure the country’s maritime borders, India also uses its Navy to
enhance its international relations through joint exercises, port visits
and humanitarian missions, including disaster relief. In recent years, the
Indian Navy has undergone extensive modernisation and expansion as
part of its aim of transition to a “Blue Water Navy”.1294 By the year
1292 Ibid.
1293 P.J. Jacob, “India and Regional Maritime Cooperation” in National Maritime
Foundation, Securing the Oceans: An Indian Ocean Perspective 39 (2005).
1294 Available at: http://en.wikipedia.org/wiki/Indian_Navy (Visited on May 10,
2015). A blue water navy is a maritime force capable of operating across the
deep waters of open oceans. A blue water navy allows a country to project
power far from the home country and usually includes one or more aircraft
carriers. Smaller blue water navies are able to dispatch fewer vessels abroad for
shorter periods of time. While traditionally a distinction was made between the
coastal brown water navy (operating in the littoral zone of 200 nautical
357
2020, India will have three aircraft carriers, i.e., INS Viraat, INS
Vikramaditya and another Vikrant class carrier which is due to be
commissioned in 2018. India has also improved its maritime aviation
capability with the induction of advanced aircraft like MIG 29K and
KA 31 airborne early warning helicopters to support fleet operations.
The launch of indigenously designed and built nuclear submarine INS
Arihant has also sent a very strong signal of India’s desire to acquire
military technology and capabilities despite several challenges.1295
There is no doubt that excluding the extra regional powers, India has
the most formidable Navy in the Indian Ocean region. Ambitious plans
have been drawn up to make the Navy capable of fulfilling India’s
aspiration of exerting greater influence in the Indian Ocean region.
India wants to play a major role and contribute towards peace and
stability in the region. In view of the prevailing environment, the
coastal States have no alternative but to pledge their efforts and assets
to start the process of co operation. The aim of such an arrangement
would be to create an atmosphere conducive not only for the peaceful
resolution of all disputes, but also for the safe passage of maritime trade
and a common approach to peacetime issues.1296
The Indian Navy in co operation with the Indian Coast Guard, aims
to project influence in India’s maritime area of interest; to further the
country’s political, economic and security objectives; to ensure good
order and stability in India’s maritime zones of responsibility; and also
to provide maritime assistance, including disaster relief in India’s
maritime neighbourhood.1297 In order to protect the Indian ships and
Indian citizens employed in seafaring duties, the Indian Navy
commenced anti piracy patrols in the Gulf of Aden from 23rd October
2008 onwards. In addition to escorting Indian flagged ships, ships of
miles/370 kilometres) and a seagoing blue-water navy, the new term green water
navy has been created by the U.S. Navy. Green water navy appears to be
equivalent to a brown water navy in older sources. The term brown water
navy appears to have been altered in U.S. Navy parlance to a riverine force.
1296 Supra note 76.
1297 Parkram Roy and Rishi Chib, “Integration of Maritime, Coastal And Defence
Agencies” in Bimal N. Patel and Hitesh Thakkar (eds.), Maritime Security and
Lucknow, 2012).
358
other countries have also been escorted by the Indian Navy.1298

Merchant ships are currently being escorted along the entire length of
the 490 nautical miles long and 20 nautical miles wide Internationally
Recommended Transit Corridor (IRTC) that has been promulgated for
use by all merchant vessels. More than 1200 ships have been escorted
by the Indian Naval ships in the Gulf of Aden since October 2008.
During their deployment for anti piracy operations, the Indian Naval
Ships have prevented at least 40 piracy attempts on merchant vessels.
Recently, Somalia had added India to its list of countries, which
includes the USA and France, who are permitted to enter its territorial
waters in an effort to check piracy.1299
With the increased presence of naval forces off the coast of Somalia
and in the Gulf of Aden, pirates have started moving to other areas in
search of prey. An increased pirate activity has been witnessed in the
Indian Ocean area outside the Internationally Recommended Transit
Corridor (IRTC), close to the west coast of India. As the piracy prone
area has expanded eastwards, the Indian Navy has made additional
deployments off the eastern and north eastern Arabian Sea. India has
set up a 24 X 7 Communication Centre with the Indian Maritime
Administration (IMA) for co ordination and facilitation in case of pirate
attacks. An active Indian Naval presence is welcomed in waters near
and far from its shores.1300
Indian Navy regularly conducts joint exercises with the navies of
other countries. For example, Exercise Malabar is a bilateral naval
exercise involving the United States of America and India. The annual
Malabar series began in 1992, and includes diverse activities, ranging
from fighter combat operations from aircraft carriers, to maritime
interdiction operations exercises. Exercise Malabar 2014 commenced
on 24th July 2014 at Sasebo Naval Base, Japan. This edition was a
trilateral one involving the navies of India, Japan and the United States
of America.1301 The exercise involved carrier strike
group operations, maritime patrol, security and
reconnaissance operations, anti piracy operations and visit, board,
1298 Available at: http://indiannavy.nic.in/operations/anti-piracy-operations (Visited

1299 Ibid.
1301 Available at: http://en.wikipedia.org/wiki/Exercise_Malabar (Visited on May 10,
2015).
359
search and seizure operations, search and rescue exercises, helicopter

cross deck landings, underway replenishment, anti submarine
warfare exercises, and liaison officer exchange and embarkation. On 26
January 2015, the US President and the Indian Prime Minister agreed,
in a joint statement, to upgrade exercise Malabar.1302
8.3.7 Role of Indian Coast Guard in Combating Piracy

The Indian Coast Guard was established on 18th August 1978 by the
Coast Guard Act, 1978. It operates under the Union Ministry of
Defence and has been given various powers under the Maritime Zones
of India Act, 1976. The duty of the Coast Guard is to protect the
maritime and other national interests of India in the maritime zones of
India. It is commanded by a Vice Admiral of the Indian Navy and
comprises of 134 vessels, 60 aircraft and 10,440 personnel.1303 The Coast
Guard works in close co operation with the Indian Navy, the
Department of Fisheries, the Department of Revenue (Customs), and
the Central and State Police forces. The major tasks of the Coast Guard
include fisheries protection, anti poaching, anti smuggling, pollution
control, protection of off shore assets, and search and rescue
operations.1304
1302 Ibid.
1303 Available at: http://en.wikipedia.org/wiki/Indian_Coast_Guard (Visited on May
10, 2015).
1304 Supra note 79. Section 14(1) of the Coast Guard Act, 1978, provides that it shall
be the duty of the Coast Guard to protect by such measures, as it thinks fit, the
maritime and other national interests of India in the maritime zones of India.
Section 14(2) of this Act provides that without prejudice to the generality of the
provisions of sub section (1), the measures referred to therein may provide for:
(a) Ensuring the safety and protection of artificial islands, offshore terminals,
installations, and other structures and devices in any maritime zone;
(b) Providing protection to fishermen, including assistance to them at sea while in
distress;
(c) Taking such measures as are necessary to preserve and protect the maritime
environment and to prevent and control marine pollution;
(d) Assisting the customs and other authorities in anti smuggling operations;
(e) Enforcing the provisions of such enactments as are for the time being in force in
the maritime zones; and
(f) Such other matters, including measures for the safety of life and property at sea
and collection of scientific data, as may be prescribed.
Section 14(3) provides that the Coast Guard shall perform its functions under this
Section in accordance with and subject to such rules as may be prescribed, and
360
Together with the Indian Navy, the Indian Coast Guard has been
proactively working to combat piracy in the Indian Ocean region.
Increased piracy attempts close to the Lakshadweep and Minicoy
islands have resulted in round the clock surveillance of this area by the
Coast Guard vessels and aircraft to create deterrence as well as build
confidence in the minds of merchant men. Accordingly, specific
exercises inducing anti piracy measures as well as coastal security
exercises have been undertaken by the Coast Guard. In addition, based
on report on piracy attempts, anti piracy operations have also been
undertaken. The Indian Coast Guard has been closely working with the
Indian Navy on all issues concerning piracy at sea and recommends
joint operations.1305
Indian Coast Guard and Indian Navy jointly started anti piracy
mission named “Operation Island Watch” on 13th December 2010 due
to sudden increase in piratical activities close to Lakshadweep and
Minicoy Islands. The presence of Indian Maritime Forces acted as a
deterrent which resulted in the shift of piracy activity west and
northwards, closer to the Gulf of Oman. Encouraged by the initial
results of “Operation Island Watch”, it was decided to extend this
operation till the onset of monsoon. This extension resulted in the
thwarting of two piracy attacks off Lakshadweep and Minicoy Islands
and apprehension of 121 pirates along with one pirate vessel. The
rescue of 71 hostages from Thailand, Myanmar and Iran also ended
their ordeal under the captivity of the pirates. Given India’s strategic
location, it is imperative that India plays a lead role in maritime safety
and security in the Indian Ocean Region. The Indian Coast Guard has
been playing a vital role in ensuring “Safety of Life at Sea”, not only in
the Indian Search and Rescue Region (ISRR) but also in adjoining
Search and Rescue Regions, whenever requested by the concerned
countries. Close co operation with our littoral neighbours is essential
for efficient coordination of Maritime Search and Rescue (SAR).1306
such rules may, in particular, make provisions for ensuring that the Coast Guard
functions in close liaison with Union agencies, institutions and authorities, so as
to avoid duplication of efforts.
1305 Available at:
http://www.indiancoastguard.nic.in/indiancoastguard/sar/sar_news_letter/4.%20S
afe%20Water%20-%20Apr%2011.pdf (Visited on May 10, 2015).
1306 Ibid.
361
8.4 CHALLENGES IN COASTAL SECURITY

Some of the main challenges to the coastal security of India are
8.4.1 Difference in Governmental Priorities

The first challenge in the path of achieving a robust coastal security
system lies in the difference of priorities as perceived by the Central
and State Governments. While the coastal security scheme introduced
by the Union Government in two phases in 2005 and 2011 is quite
comprehensive and is regarded as high in priority by the Union
Government, its implementation at the State level is not satisfactory.1307
This is highlighted by the following reasons:
I. Various State Governments have highlighted the shortage of
technical manpower and have emphasized upon the need to establish a
Marine Police Academy for training manpower.1308
II. Some State Governments are of the view that the Coastal Security
Scheme suffers from an “excessive top down approach”. They suggest
that there must be a provision for prior consultation with end users for
continuous feedback and evaluation.1309
III. Out of the 131 four wheelers sanctioned by the second phase of
the coastal security scheme, only 57 have been purchased by the coastal
States and Union Territories. The release of funds for procurement of
vehicles in respect of Maharashtra, Goa, Kerala, Odisha, West Bengal
and the Union Territory of Daman and Diu could not be made because
of the Finance Ministry’s restriction on the purchase of new
vehicles.1310
IV. Several coastal States and Union Territories have complained
regarding the maintenance of boats. They have complained that the
maintenance agencies in Goa and Kolkata are woefully inadequate. In
case of a major problem, the technician has to be summoned from
outside the State or Union Territory. Some spare parts are not easily

1308 Available at:
http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on
%2 0Home%20Affairs/177.pdf (Visited on May 12, 2015).
1309 Ibid.
1310 Ibid.
362
available in the local market, which delays repairs. As a result of all

these factors, some vessels remain non operational.1311
8.4.2 Poor Policing

The Governments of most coastal States and Union Territories have
remained unenthusiastic towards the coastal security scheme. While
some States and Union Territories cited financial constraints, others
wanted that the Union Government should shoulder the entire
responsibility for coastal security. The Police forces of some States
have taken the stand that they are essentially land based and should not
be burdened with coastal security issues. As policing is a subject under
the purview of the State, the objections of the Police forces have
dampened the coastal security initiative considerably. As a result,
infrastructure creation and acquisition of manpower for the scheme has
remained minimal, both on land as well as at sea.1312
8.4.3 Lack of Resources

The sheer enormity of the coastline, the large population of people
living along the coast, the number of small and large boats operating
along the coastline and the area to be continuously patrolled often tends
to overwhelm the capacity and efficiency of the law enforcement
agencies. For example, on 12th June 2011, a cargo ship named “MV
Wisdom”, which was headed towards Alang in Gujarat, drifted towards
the coast of Mumbai after breaking its tug and eventually got stranded
at Juhu beach.1313 This incident was followed by another similar
incident involving a Panama flagged ship named “MV Pavit”, which
ran aground near Juhu beach on 30th July 2011 after having been
abandoned by its crew a month earlier near Oman. The most worrisome
part in this episode was the fact that this ship drifted in the Indian
territorial waters for nearly 100 hours and the Indian Navy, Indian
Coast Guard and the Indian Marine Police failed to detect it. A few
days later, on 4th August 2011, another Panama flagged vessel named
“MV Rak”, with 60,000 metric tonnes of coal and 340 tonnes of fuel oil
on board, sank off the coast of Mumbai.1314 As it sank, it discharged
more than 25 tonnes of oil, resulting in a major oil spill and thereby
1311 Ibid.
1313 Ibid.
1314 Id., at 237.
363
causing considerable harm to the marine life in this area. These

incidents have highlighted the fact that due to lack of information
sharing and problem of identification of responsibilities, the security of
our coastline still remains vulnerable.1315
8.4.4 Lack of Integration Among Security Agencies

Another major problem plaguing coastal security in India is the lack
of integration, co ordination and exchange of information between the
various security agencies involved. There are over 15 agencies that
have something to do with maritime security besides the Indian Navy,
Indian Coast Guard and the Marine Police. These agencies include
Ports Trust, Maritime Boards, Fisheries Boards, Ministry of
Agriculture, Ministry of Shipping, Ministry of Science and
Technology, Directorate General of Shipping, Customs Department,
Marine Wing of the Border Security Force and the Directorate of
Revenue Intelligence, who need to co ordinate their actions and
intelligence gathering.1316
8.4.5 Lack of Identification and Tracking System on Fishing Boats

There is a device named “Automatic Identification System (AIS)”,
which the International Maritime Organization (IMO) requires to be
compulsorily fitted on vessels of a size of 300 gross tonnes or more and
on all passenger ships. This transponder is fitted on these vessels and
provides data on identification and location of a vessel up to a distance
of 30 nautical miles. For long range tracking, the “Long Range
Identification and Tracking System (LRIT)” is used for ships operating
outside the range of the coastal AIS. This system uses satellite
communications for reporting positions. In India, the problem of
coastal security is aggravated by the fact that there are more than three
lakh fishing boats operating across various coasts of India. Many of
them regularly move outside the territorial sea of India in search of fish
and come back only when their nets are full. Sometimes, they venture
into the exclusive economic zone of Pakistan, Bangladesh and Sri
Lanka, where they are arrested by the coastal security agencies of those
countries. These fishing boats fall under the tonnage threshold of 300
gross tonnes and do not have any of these identification systems on
1315 Ibid.
1316 Ibid.
364
them.1317 These identification and tracking systems are very expensive.

As a result, no consensus has been achieved on the installation of these
systems on small fishing vessels.1318
8.5 CRIMINAL JURISDICTION AT SEA

In the previous Chapter, various principles of International Law
dealing with criminal jurisdiction at sea have been discussed. These
principles include territorial principle, nationality principle and passive
personality principle.1319 In India, Section 188 of the Code of Criminal
Procedure, 1973, gives effect to the nationality principle and the
territorial principle. It provides that if an offence is committed outside
India by an Indian citizen, whether on the high seas or elsewhere; or by
a non citizen on any ship or aircraft registered in India, he may be tried
for such offence at any place in India where he may be found, as if the
offence had been committed at such place. However, before inquiring
into or trying any such offence, previous sanction of the Central
Government must be obtained.1320
1317 Id., at 238.

1318 Ibid.
1319 See Infra, Chapter VII for detailed analysis of these principles.
1320 Amar S. Mulla, Commentary on The Code of Criminal Procedure, 1973 1073
(Delhi Law House, New Delhi, 2015). Section 188 of the Code of Criminal
Procedure, 1973, lays down that when an offence is committed outside India-
(a) by a citizen of India, whether on the high seas or elsewhere; or
(b) by a person, not being such citizen, on any ship or aircraft registered in India,
he may be dealt with in respect of such offence as if it had been committed at any
place within India at which he may be found.
Provided that notwithstanding anything in any of the preceding sections of this
Chapter, no such offence shall be inquired into or tried in India except with the
previous sanction of the Central Government.
Section 189 provides that when any offence alleged to have been committed in a
territory outside India is being inquired into or tried under the provisions of
Section 188, the Central Government may, if it thinks fit, direct that copies of
depositions made or exhibits produced before a judicial officer in or for that
territory or before a diplomatic or consular representative of India in or for that
territory shall be received as evidence by the Court holding such inquiry or trial
in any case in which such Court might issue a commission for taking evidence as
to the matters to which such depositions or exhibits relate.
365
8.6 PROSECUTION OF PIRATES

As discussed in the previous Chapter, universal jurisdiction applies
over the crime of piracy. Any country may seize a pirate ship, arrest the
pirates and try them in its Courts.1321 However, due to the inadequate
and ineffective legal mechanisms to prosecute arrested pirates in many
countries, it is estimated that 9 out of 10 apprehended pirates benefit
from the “catch, disarm and release” policy followed by many Navies
the world over.1322 There has been only one case where pirates have
been tried and punished by an Indian Court, while the trial is pending in
another case. In yet another case pending adjudication, two Italian
marines fired at and killed two Indian fishermen, suspecting them to be
pirates. The legal issues and challenges involved in these cases are
discussed hereunder:
8.6.1 The MV Alondra Rainbow Case

The MV Alondra Rainbow Case is the only case till date, where
pirates have been tried and punished by an Indian Court. In this case, 15
Indonesian nationals were charged under the Admiralty Offences
(Colonial) Act, 1849 and the Admiralty Jurisdiction (India) Act, 1860,
for committing piracy. They were also charged with various offences
under the Indian Penal Code like attempt to murder, dacoity and
waging war against the country. They were further charged for various
offences under the Foreigners Act, 1946, and the Passports Act,
1967.1323 However, only 14 of them were prosecuted and sentenced as
one of them died during trial. The case was assigned to the Sessions
Court of Mumbai and the Court was presided over by Mr. RR Vachcha,
Additional Sessions Judge at Mumbai. During trial, 143 articles and 138
exhibits were produced and 24 witnesses were examined by the
prosecution.1324 During the pre trial stage, the Indonesian Government
1321 See Infra, Chapter VII for detailed analysis of the concept of universal
jurisdiction over the crime of piracy.
1323 Anindita Pattanayak and Kartikeya Dar, “Addressing Piracy Through The Indian
Legal Framework” 8 NALSAR SLR 2 (2013). Also available at:
http://www.commonlii.org/in/journals/NALSARStuLawRw/2013/3.pdf (Visited
on May 17, 2015).
1324 Ranjeet V. Sangle, “A Prosecution Story – Re: Alondra Rainbow” in Bimal N.
Patel and Hitesh Thakkar (eds.), Maritime Security and Piracy (Global Issues,
366
provided legal assistance to the accused through its Consulate at

Mumbai. However, legal support was withdrawn after the
The M.V. Alondra Rainbow was a cargo ship owned by Imura Kisen Company of
Japan, built and registered in 1998. It was registered in Panama and was flying
the Panamanian flag. A Japanese natioal named Mr. Ko Ikeno joined as the
Captain of the vessel in December 1998. The vessel called at the port of Kuala
Tanjung in Indonesia on 18th October 1999, loaded 7000 mt of aluminium ingots
and set sail for Milke, Japan on 22nd October 1999. After two hours of its
departure from the Indonesian port, while the vessel was at sea, the Captain
heard some strange sounds indicating commotion on the deck. He came out of
his cabin to inquire and found that there were around 10 pirates on the deck with
facemasks and armed with knives and pistols. They scared the Captain by firing
shots in the air. Then they incapacitated the Captain and the persons on watch at
the bridge by tying their hands at the back. Thereafter, they searched the whole
vessel, brought out the entire 17 crew members (2 Japanese and 15 Filipinos),
tied their hands at the back and forcefully took control over the ship. Then they
looted all the valuables from the cabins, including the crew’s passports, ship’s
documents and cash (2500 US Dollars and 11,80,000 Japanese Yen). The
incapacitated crew members were kept in the mess room. After two hours, a
small pirate vessel came and the pirates transferred all the crew members on to
that vessel. After six days, on 28th October 1999, the crew members were forced
to board the life raft of M.V. Alondra Rainbow and then the raft was set adrift to
the mercy of the sea. On the afternoon of 8th November 1999, after drifting in the
sea for about 10 days, they were rescued by a Thai fishing trawler and taken to
the city of Phuket in Thailand. On receipt of a request message from the Piracy
Reporting Centre of the International Maritime Bureau, situated at Kuala
Lumpur, Malaysia, an Indian Coast Guard vessel named C.G.V. Tarabai, set sail
from Cochin towards M.V. Alondra Rainbow on 14th November 1999, which was
reported to be around the Lakshadweep islands. The Coast Guard vessel sighted
the suspect vessel about 40 nautical miles from the Indian shore. The suspect
vessel did not acknowledge when asked for identification by the C.G.V. Tarabai.
When the Coast Guard vessel fired in the air, the suspect vessel changed its
direction and increased speed. Tarabai asked for support vessels from the Indian
Navy and the Coast Guard. On 15th November 1999, when confronted by an
aircraft of the Coast Guard, the suspect vessel identified itself as Mega Rama and
stated that its last port of call was Manila and the next port of call was Fujairah.
The vessel refused to stop for investigation and when it was confronted by
Tarabai, it fired upon it. C.G.V. Tarabai returned fire along with C.G.V. Veera,
C.G.V. Annie Besant and I.N.S. Prahar, which had arrived at the scene by then,
and the persons on board the suspect vessel surrendered on 16th November 1999.
Fifteen Indonesian nationals were found in the vessel, all of whom were arrested
by the Coast Guard. M.V. Alondra Rainbow was towed to Mumbai and the crew
and the vessel were handed over to the Mumbai Police. An FIR was filed on 21st
November 1999. The Police arrested the accused, took charge of the ship along
with all the articles and documents, and brought all the accused for trial under
various provisions of Indian laws.
367
commencement of trial and the State of Maharashtra had to arrange

lawyers for the accused from the Legal Aid Cell. Though the
Indonesian Government withdrew legal support after the
commencement of trial, Ms. Irzani Ratni, the then Vice Consul of
Indonesia, attended the trial as an observer and at times also acted as an
interpreter to the accused.1325 The following legal issues arose during
the course of trial:
I. Whether M.V. Alondra Rainbow was subjected to piracy and
whether it was taken over by pirates by the use of force from the
Captain and the crew appointed by the legal owners ?1326
II. Whether the vessel seized by the Coast Guard, which bore the
name Mega Rama was indeed M.V. Alondra Rainbow ?1327
III. What was the role of the accused in regard to the piracy of M.V.
Alondra Rainbow ?1328
IV. Whether the persons accused were guilty of the offences with
which they were charged ?1329
V. Whether the Sessions Court at Mumbai had the jurisdiction to try
the accused for the offences with which they were charged ?1330
The crux of the evidence which led to the establishment of guilt of
the accused was the testimony of the Captain of M.V. Alondra Rainbow
and the testimony of the officers of the Indian Coast Guard and the
Indian Navy who arrested the ship and brought it to Mumbai.1331 From
their testimony, the following facts were incontrovertibly established:
I. The vessel M.V. Alondra Rainbow, with its cargo of 7000 tonnes
of aluminium ingots was forcibly seized by the accused on 22nd October
1999 from the control of the Captain and 16 other crew members.1332
II. On 28th October 1999, all crew members were transferred to a life
raft, without any navigational and communication equipment. The raft
was then set adrift, exposing crew members to the perils of the sea.
1325 Id., at 48.

1326 Ibid.
1327 Ibid.
1328 Ibid.
1329 Ibid.
1330 Ibid.
1331 Ibid.
1332 Id., at 52.
368
This was done evidently with an intention to kill them. They survived
only by providence.1333
III. A cargo vessel pretending to be Mega Rama was intercepted by
the C.G.V. Tarabai 40 nautical miles from the coast of Kerala on 16th
November 1999 and 15 Indonesian nationals were arrested. They did
not offer any tangible explanation for their presence on board the said
ship. They did not have any documents of the ship, cargo papers, travel
papers, passports or continuous discharge certificates. No basis could
exist for the argument that they were innocent crew employed without
knowledge of piracy.1334
IV. The accused had changed the name of M.V. Alondra Rainbow to
Mega Rama by painting the fictitious name over the real name. In fact,
paint was found on board the vessel.1335
V. The documents of M.V. Alondra Rainbow were burnt by the
accused and they made an effort to sink the ship and its cargo by
flooding the engine room.1336
On the issue of jurisdiction of Court to try the accused, it was
submitted that as India is a signatory to the United Nations Convention
on Law of the Sea, 1982, even though piracy was committed in
international waters, once the accused are brought to India and charged
under various laws, they can be prosecuted, tried and convicted in
accordance with the Indian legal provisions. This argument was
accepted by the Court.1337
After a long trial which lasted for more than three years, the
Sessions Court of Mumbai delivered its judgement on 25th February
2003. All the 14 accused were found guilty of various offences under
the Indian Penal Code like attempt to murder, conspiracy to commit
murder, common intention, etc, and were sentenced to rigorous
imprisonment for a period of seven years.1338 A fine of Rs. 3000 was
also imposed on each one of them. As the colonial laws dealing with
piracy did not provide for any punishment for piracy, the accused could
not be sentenced for committing piracy. The Court held that the
1333 Id., at 53.

1334 Ibid.
1335 Ibid.
1336 Ibid.
1337 Id., at 54.
1338 Id., at 55.
369
accused were entitled to set off under Section 428 of the Criminal
Procedure Code, 1973, for the period during which they were in
custody.1339 The accused filed an appeal before the Bombay High Court
against the sentence passed by the Sessions Court. The High Court
partly allowed the appeal by an order dated 7th March 2005. The
sentence of imprisonment imposed on the accused was reduced to the
period already undergone by them, which was over five years. The
Court ordered that the accused should be deported to their home
country within four weeks. They were deported to Indonesia on 28th
March 2005.1340
8.6.2 Trial of 120 Somali Pirates

In March 2011, the Indian Navy and Coast Guard arrested 120
Somali pirates in several raids conducted in the Indian Ocean region,
and rescued 70 hostages belonging to various countries like India,
Thailand, Philippines, Bangladesh, Iran, Turkey, Myanmar and
Pakistan. Highly sophisticated weapons such as AK-47 assault rifles
and rocket launchers were recovered from them. The pirates have been
charged with various offences under the Unlawful Activities
(Prevention) Act, 1967. In addition to it, they have also been charged
with attempt to murder, unlawful assembly, criminal intimidation,
criminal conspiracy and waging war against the country under the
Indian Penal Code. They have also been booked under various sections
of the Arms Act, 1959.1341
India faced some difficulties in prosecuting the pirates because the
witnesses of arrest belong to various countries including Iran, Pakistan,
Myanmar, Thailand, Mozambique and Bangladesh. However, the trial
against the 120 Somali pirates is likely to resume in 2015 as India has
1339 Ibid. Section 428 of the Criminal Procedure Code, 1973, provides that where an
accused person has, on conviction, been sentenced to imprisonment for a term ,
not being imprisonment in default of payment of fine, the period of detention, if
any, undergone by him during the investigation, inquiry or trial of the same case
and before the date of such conviction shall be set off against the term of
imprisonment imposed on him on such conviction, and the liability of such
person to undergo imprisonment on such conviction shall be restricted to the
remainder, if any, of the term of imprisonment imposed on him.
1340 Id., at 56.
1341 Available at: http://www.mumbaimirror.com/mumbai/others/Pirates-trial-
Foreign- witnesses-to-depose-via-video-conferencing/articleshow/46361495.cms
370
agreed to provide Rs 31 lakh to arrange the deposition of 18 foreign

witnesses via video conferencing. The trial was at its fag end after 81
witnesses were examined. However, the remaining 18 witnesses from 6
different countries could not be examined. They will now be able to
depose from the Capital of their respective countries via video
conferencing.1342 The prosecution told the Court on 24th February 2015
that in a meeting held with the Chief Minister Devendra Fadnavis, an
assurance for the sanction has been given by the Government. Special
Public Prosecutor Ranjeet Sangle while speaking to Mumbai Mirror
said that, “this money, as soon as it is sanctioned, will help the Indian
Missions abroad for making arrangements with the respective countries
for the travel of witnesses to the Capital and video conferencing
facilities”. Since the accused in the present case are Somalis and do not
understand any language other than their own, the deposition of all the
witnesses shall be translated by five students from Pune.1343
8.7 THE ENRICA LEXIE CASE

The shoot out from Enrica Lexie, an Italian flagged commercial
vessel on 15th February 2012, by two Italian marines that resulted in the
death of two innocent Indian fishermen on board St. Antony, an Indian
fishing boat off the coast of Kerala, has attracted unprecedented media
attention in India and Italy.1344 On the basis of information given by the
1342 Ibid.
1343 Ibid.
1344 Manimuthu Gandhi, “The Enrica Lexie Incident: Seeing Beyond The Grey
Areas of International Law” 53 IJIL 1 (2013). The incident occurred around 16.30
hours IST on 15th February 2012, when Italian Navy marines, on board a
privately owned Italian flagged Aframax oil tanker MT Enrica Lexie, opened fire
in the direction of an approaching boat. The Italian Marines were members
of Nuclei military di protezione (Military protection teams, or NMP), engaged in
anti piracy mission under the Resolutions 1970 (2011) and 1973 (2011) adopted
by the United Nations Security Council. Indian coastal police were alerted that
two crew members of St. Antony, an Indian fishing trawler, had been killed by
gunfire from an oil tanker. At the time of firing, the Indian boat was
approximately 20.5 nautical miles off the Indian coast. Indian Coast Guard
contacted the Enrica Lexie, asking its captain for his collaboration in identifying
some suspect pirates. The Italian oil tanker, which was already far away from the
Indian coast, reversed course and moored in the port of Kochi. On 19th February
2012, Kerala police members went onboard the Enrica Lexie, and two of the 6
members of the NPM, Chief Master Sergeant Massimiliano Latorre and Sergeant
Salvatore Girone, belonging to the San Marco Regiment of the Italian Navy,
371
owner of St. Antony to the Circle Inspector of Police, Neendakara, a

FIR was registered by the Kerala Police. After being arrested, the
Italian marines were later released on bail.1345 However, the marines
and the Consul General of Italy approached the Kerala High Court for
the issuance of an appropriate writ or direction for quashing the FIR
and for declaring the arrest and detention of Italian marines and all
further proceedings in pursuance of the FIR as null and void. After the
dismissal of this petition by the Kerala High Court on 29th May 2012,
the Italian Ambassador filed a Special Leave Petition in the Supreme
Court of India, seeking the same relief, which was disposed of by the
Supreme Court on 18th February 2013.1346 Various legal issues raised
before the Kerala High Court and the Supreme Court of India in this
case are briefly discussed hereunder:
8.7.1 Legal Issues Raised Before the Kerala High Court

The following legal issues were raised before the Kerala High Court
by the Petitioners (Italian side) through their arguments in the writ
petition titled Massimiliano Latorre vs. Union of India:1347
I. The offence was committed in international waters and therefore,
it falls under Article 97 of the United Nations Convention on Law of
the Sea, 1982. Accordingly, only the flag State has the jurisdiction to
try this offence.1348
were arrested and charged with the murder of two crew members of St. Antony,
named Ajesh Binki and Valentine.
1345 Id., at 2.
1346 Ibid.
1347 (2012) 252 KLR 794.
1348 Supra note 126, at 2. Article 97 deals with penal jurisdiction in matters of
collision or any other incident of navigation. Article 97(1) provides that in the
event of a collision or any other incident of navigation concerning a ship on the
high seas, involving the penal or disciplinary responsibility of the master or of
any other person in the service of the ship, no penal or disciplinary proceedings
may be instituted against such person except before the judicial or administrative
authorities either of the flag State or of the State of which such person is a
national. Article 97(2) provides that in disciplinary matters, the State which has
issued a master's certificate or a certificate of competence or licence shall alone
be competent, after due legal process, to pronounce the withdrawal of such
certificates, even if the holder is not a national of the State which issued them.
Article 97(3) provides that no arrest or detention of the ship, even as a measure
of investigation, shall be ordered by any authorities other than those of the flag
State.
372
II. The shooting incident occurred in the Contiguous Zone/Exclusive

Economic Zone of India, i.e., beyond the territorial waters of India. In
the light of the Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zones Act (Maritime Zones Act),
1976, the sovereignty of India extends only up to 12 nautical miles from
the nearest point of the baseline. Therefore, the courts in India have no
jurisdiction over the incident.1349
III. The Supreme Court of India in various decisions on the
application of Section 4 of the Indian Penal Code has held that the
jurisdiction of Indian Courts in relation to criminal offences is limited
to the territory of India. Any extra territorial jurisdiction under Section
4 is limited only to Indian citizens and is not applicable to the Italian
marines who are Italian citizens. Therefore, the Kerala Police has no
authority to arrest them or to register a case against them.1350
IV. The Italian marines were deployed by the Italian Defence
Ministry for the purpose of protecting the vessel from piracy. They
were acting in their official capacity under the resolutions of UN
Security Council and the principles of international law. Therefore,
they were subject only to the jurisdiction of the flag State or their own
State. It was also brought to the notice of the Court that a case has
already been registered against them in Italy and an investigation has
been launched.1351
The Respondents (Union of India and Others) raised the following
legal issues before the Kerala High Court through their arguments:
I. The Courts in India have absolute jurisdiction over the offence
because the two Indian citizens killed by the Italian marines were on
board a boat registered in India, which should be treated as Indian
territory. Article 97 of the UNCLOS, 1982, did not apply to this
offence. Article 27 of the UNCLOS, 1982, lays down that coastal States
can exercise criminal jurisdiction over a foreign ship when the
1349 Ibid. Section 3(1) of the Maritime Zones Act, 1976, provides that the sovereignty
of India extends and has always extended to the territorial waters of India
(hereinafter referred to as the territorial waters) and to the seabed and subsoil
underlying, and the air space over, such waters. Section 3(2) provides that the
limit of the territorial waters is the line every point of which is at a distance of
twelve nautical miles from the nearest point of the appropriate baseline.
1350 Ibid. Section 4 of the Indian Penal Code provides that the provisions of this
Code applies also to any citizen of India without and beyond India; and any
person on any ship or aircraft registered in India wherever it may be.
1351 Id., at 3.
373
consequences of a crime perpetrated from the ship extend to the coastal

State.1352
II. By a Central Government notification dated 27th August 1981, the
Indian Penal Code and the Criminal Procedure Code have been
extended to the Exclusive Economic Zone of India.1353
III. The Italian marines did not undertake any Standard Operating
Procedures (SOP’s) and Best Management Practices (BMP’s) to
dissuade the suspected pirates before resorting to indiscriminate firing.
Firing should have been the last option to be exercised only in extreme
situations of self defence. It was unjustified to open fire on an unarmed
fishing boat.1354
8.7.2 Judgement of the Kerala High Court

The Kerala High Court considered all issues raised by the petitioners
and the respondents, including the issue of applicability of the
Suppression of Unlawful Acts Against The Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf (SUA) Act, 2002,
which was not included in the pleadings. The Kerala High Court found
its jurisdiction on the basis of joint reading of Section 3 of the IPC,
Section 3 of the SUA Act and the Central Government notification
dated 27th August 1981.1355 The Court also delved into certain principles
1352 Ibid. Article 27 deals with criminal jurisdiction on board a foreign ship. Article
27(1) provides that the criminal jurisdiction of the coastal State should not be
exercised on board a foreign ship passing through the territorial sea to arrest any
person or to conduct any investigation in connection with any crime committed
on board the ship during its passage, save only in the following cases: (a) if the
consequences of the crime extend to the coastal State; (b) if the crime is of a kind
to disturb the peace of the country or the good order of the territorial sea; (c) if
the assistance of the local authorities has been requested by the master of the
ship or by a diplomatic agent or consular officer of the flag State; or (d) if such
measures are necessary for the suppression of illicit traffic in narcotic drugs or
psychotropic substances.
1353 Ibid.
1354 Ibid.
1355 Id., at 4. Para 24 of the judgement. Section 3 of the IPC deals with punishment
of offences committed beyond, but which by law may be tried within India. It
provides that any person liable, by any Indian law to be tried for an offence
committed beyond India shall be dealt with according to the provisions of this
Code for any act committed beyond India in the same manner as if such act had
been committed within India. Section 3 of the SUA Act, 2002 deals with offences
against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.
374
of international law, such as the “passive personality principle” and the

“objective territoriality principle”, which provide criminal jurisdiction
to States in respect of offences committed outside their territory. The
Court thus applied Section 179 of the Criminal Procedure Code, 1973,
which effectively codifies the “objective territorial and effective
principle”.1356 The Court interpreted the phrase “incidence of
navigation” as mentioned in Article 97 of the UNCLOS, 1982, as “an
event or happening, especially one causing trouble, which generally
occurs unexpected or unanticipated and which has a bearing on
navigation”. The Court observed that “by no stretch of imagination it
can be said that opening fire unilaterally at a fishing boat 200 metres
away from the ship, carrying unarmed fishermen, most of whom are
sound asleep, constitutes an incidence of navigation. This is a case of
firing against fishermen. The firing is nothing but a brutal killing of two
defenceless fishermen on board the boat”.1357
The Court also considered whether the marines had followed the
revised interim guidance to ship owners and ship operators on the use
of Privately Contracted Armed Security Personnel (PCASP) on board
ships in the high risk area issued by the International Maritime
Organization (IMO). The Court held that despite the rule according to
which Private Military Contractors (PMC’s) must not use firearms
except in self defence or defence of others against imminent threat of
death or serious injury, or to prevent the preparation of a serious crime
involving grave threat to life, the Italian marines fired on the fishing
boat without any provocation and this amounted to a patent violation of
the revised interim guidance.1358
8.7.3 Legal Issues Raised Before the Supreme Court of India

Pending the decision on the writ petition filed before the Kerala
High Court, the Italian side filed another writ petition before the
Supreme Court of India. While the petitioners’ writ petition was
pending before the Supreme Court, the Kerala High Court dismissed
their petition filed before it. Aggrieved by the judgement of the Kerala
1356 Ibid. Para 38 of the judgement. Section 179 of the CrPC, 1973, provides that
when an act is an offence by reason of anything which has been done and of a
consequence which has ensued, the offence may be inquired into or tried by a
Court within whose local jurisdiction such thing has been done or such
consequence has ensued.
375
High Court, the petitioners filed a special leave petition before the
Supreme Court, challenging the dismissal of their writ petition. The
Supreme Court heard the writ petition and the special leave petition
together, since the subject matter and the relief claimed in both
petitions was the same.1359 The following legal issues were raised before
the Supreme Court by the Petitioners (Italian side) through their
arguments in the writ petition titled Republic of Italy and Others vs.
Union of India and Others:1360
I. The incident had not occurred within the jurisdiction of the federal
units of the Union of India. It occurred in a zone in which the Central
Government was entitled under the Maritime Zones Act, 1976 and the
UNCLOS, 1982, to exercise sovereign rights (for certain purposes) not
amounting to sovereignty. Accordingly, the arrest and detention of the
Italian marines by the Kerala Police is unlawful and liable to be
quashed.1361
II. The provisions of the UNCLOS, 1982, and the Maritime Zones
Act, 1976, recognize the primacy of flag State jurisdiction. Thus, the
Republic of Italy has the primary right to try the Italian marines under
its municipal law.1362
III. The Central Government notification dated 27th August 1981,
departed from the provisions of the UNCLOS, 1982. The petitioners
urged for harmonious construction between the UNCLOS, 1982, and
the Maritime Zones Act, 1976. They pleaded that a joint reading of
Articles 91, 92, 94 and 97 of the UNCLOS, 1982, clearly establishes
that any principle of concurrent jurisdiction that may have been
recognized as a principle of Public International Law, stands displaced
by the express provisions of the UNCLOS, 1982.1363
IV. The Italian marines were part of a military protection squad
deployed on board Enrica Lexie. Their conduct was in fulfillment of
their official duties in accordance with national regulations, directives,
rules of piracy contained in the UNCLOS, 1982, and the relevant UN
Security Council resolutions on piracy. In case of pirate attacks, the
master of the ship has no control over the actions of the military
1359 Ibid.
1360 (2013) 4 SCC 721.
1362 Ibid.
1363 Ibid.
376
protection squad provided by the Italian Government. Therefore,

sovereign immunity must be extended to them.1364
The Respondents (Union of India and Others) raised the following
legal issues before the Supreme Court through their arguments:
I. There is no conflict between Indian law and International law.
Even if there is such conflict, Indian law dictates that domestic law
would prevail over International law. Once the IPC has been extended
to the exclusive economic zone, which includes the contiguous zone,
the Indian Courts have territorial jurisdiction to try all offences
committed within these zones.1365
II. While the petitioners emphasized on Article 56(1)(b) of the
UNCLOS, 1982, to prove their point, the respondents emphasized on
Article 56(1)(a) and Article 73 of the UNCLOS, 1982, to justify the
action taken against the accused. Even if it could be assumed that the
rights asserted by India were beyond those indicated in Article 56 of the
UNCLOS, 1982, such conflict would have to be resolved on the basis of
equity and in the light of all the prevalent circumstances. Accordingly,
even if both India and Italy have the power to prosecute the accused, it
would be much more convenient and appropriate for the trial to be
conducted in India, having regard to the location of the incident, nature
of the evidence and witnesses to be used against the accused.1366
1364 Ibid.
1365 Id., at 7.
1366 Ibid. Article 56 deals with the rights, jurisdiction and duties of the coastal State
in the exclusive economic zone. Article 56(1) provides that in the exclusive
economic zone, the coastal State has: (a) sovereign rights for the purpose of
exploring and exploiting, conserving and managing the natural resources,
whether living or non-living, of the waters superjacent to the seabed and of the
seabed and its subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the production of energy from
the water, currents and winds; (b) jurisdiction as provided for in the relevant
provisions of this Convention with regard to: (i) the establishment and use of
artificial islands, installations and structures; (ii) marine scientific research; (iii)
the protection and preservation of the marine environment; (c) other rights and
duties provided for in this Convention. Article 73 deals with the enforcement of
laws and regulations of the coastal State. Article 73(1) provides that the coastal
State may, in the exercise of its sovereign rights to explore, exploit, conserve and
manage the living resources in the exclusive economic zone, take such measures,
including boarding, inspection, arrest and judicial proceedings, as may be
necessary to ensure compliance with the laws and regulations adopted by it in
conformity with this Convention. Article 73(2) provides that arrested vessels and
their crews shall be promptly released upon the posting of reasonable bond or
377
III. The expression “incident of navigation” used in Article 97 of the

UNCLOS, 1982, did not contemplate a situation where a homicide
takes place. Accordingly, Article 97 would not have any application to
the facts of the present case.1367
IV. The action of Italian marines was not acta jure imperii (public
acts of the Government of a State) but acta jure gestionis (commercial
activities of a State). Hence, the scope of various Italian laws would
have to be established by way of evidence.1368
V. As per the policy of the Government of India, no foreign arms,
foreign private armed guards or foreign armed forces personnel
accompanying merchant vessels were allowed diplomatic clearance.
Nor is it the policy of the Government of India to enter into any Status
of Forces Agreement (SOFA) by which foreign armed forces are given
immunity from criminal prosecution. Therefore, the marines’ claim of
functional immunity from criminal jurisdiction is not maintainable.1369
VI. The Indian fishing boat St. Antony was berthed at Neendakara,
Kerala, commenced its voyage from within the jurisdiction of
Neendakara Police Station and had come back and berthed at the same
place after the firing incident of 15th February 2012. These facts bring
the entire matter within the jurisdiction of Neendakara Police Station,
and in consequence, the Kerala State Police.1370
8.7.4 Judgement of the Supreme Court of India

The Division Bench of the Supreme Court, comprising of Justice
Altamas Kabir (Chief Justice of India) and Justice Jasti Chelameswar
considered all issues raised by the petitioners and the respondents. The
Apex Court decision focused mainly on three issues, i.e., the
jurisdiction of the Kerala High Court to investigate and try this case,
the compatibility of the UNCLOS, 1982, with the Maritime Zones Act,
other security. Article 73(3) provides that coastal State penalties for violations of
fisheries laws and regulations in the exclusive economic zone may not include
imprisonment, in the absence of agreements to the contrary by the States
concerned, or any other form of corporal punishment. Article 73(4) provides that
in cases of arrest or detention of foreign vessels the coastal State shall promptly
notify the flag State, through appropriate channels, of the action taken and of any
penalties subsequently imposed.
1367 Ibid.
1368 Ibid.
1369 Id., at 8.
1370 Ibid.
378
1976, and the applicability of Article 97 of the UNCLOS, 1982.1371 On

18th February 2013, the Supreme Court held that:
I. The firing incident occurred within the contiguous zone and not
within the territorial waters of the coastline of the State of Kerala. The
State of Kerala has no jurisdiction over the contiguous zone. Even if the
provisions of the Indian Penal Code and the Criminal Procedure Code
have been extended to the contiguous zone, it did not vest the State of
Kerala with powers to investigate and try the offences committed
within this zone. Only the Union of India can take cognizance of,
investigate and prosecute persons who commit any infraction of the
municipal laws within the contiguous zone.1372
II. The provisions of the UNCLOS, 1982, are in harmony and not in
conflict with the provisions of the Maritime Zones Act, 1976. India is
entitled both under Public International Law and its municipal law to
exercise rights of sovereignty up to 24 nautical miles from the baseline.
The firing incident having been occurred within the contiguous zone of
India, the Union of India is entitled to prosecute the Italian marines
under the criminal justice system prevalent in India.1373
III. The area of difference between the provisions of the UNCLOS,
1982, and the Maritime Zones Act, 1976, occurs in Article 97 of the
UNCLOS. But this difference appears to have no bearing on this case
because the term “incidence of navigation” referred to in Article 97
cannot involve a criminal act in any circumstances.1374
The Apex Court directed the Union of India to set up a Special Court
in consultation with the Chief Justice of India, to try and dispose of this
case in accordance with the provisions of the Maritime Zones Act,
1976, the Indian Penal Code, the Criminal Procedure Code, and the
UNCLOS, 1982 (where there is no conflict between the Indian law and
the UNCLOS, 1982).1375 The Apex Court made it clear that that the
views taken in the judgement relate only to the question of jurisdiction.
After the recording of evidence by the trial court, it would be open for
the petitioners to re agitate the question of jurisdiction before the trial
court. The Apex Court further held that in the Special Court, the
1371 Ibid.
1375 Id., Para 101 of the judgement.
379
petitioners would not be prevented from invoking the provisions of

Article 100 of the UNCLOS, 1982.1376 The Italian marines were directed
by the Court to report to the Station House Officer of the Chanakyapuri
Police Station, New Delhi, once in a week.1377
8.7.5 Post Judgement Developments

In compliance with the Supreme Court order, both Italian marines
came to New Delhi and reported once a week to the Station House
Officer of the Chanakyapuri Police Station with the same terms and
conditions of bail imposed by the Kerala High Court. On 23rd February
2013, on an affidavit filed by the Italian Ambassador before the Apex
Court, the Supreme Court allowed the Italian marines to return to Italy
for two weeks in order to exercise their voting right in the Italian
elections scheduled for 24th and 25th February 2013. However, on 11th
March 2013, the Italian Foreign Ministry announced that the marines
would not return to face trial in India because India’s decision to try
them would violate their rights under International law and would also
violate the principle of immunity for foreign State actors. The
Government of Italy opined that it was open to get the case assessed by
an international arbitrator.1378 In response to this, the Indian Ministry of
External Affairs summoned the Italian Ambassador and stated firmly
that the Government of India does not agree with the position conveyed
by the Italian Government. During a discussion in the Lok Sabha
(Lower House of Parliament), Dr. Manmohan Singh, the then Prime
Minister of India, warned Italy of consequences if the marines were not
returned.1379
On 14th March 2013, Mr. G.E. Vahanvati, the then Attorney General
of India filed an affidavit before the Supreme Court conveying these
developments. On 18th March 2013, the Supreme Court once again
affirmed that India had the jurisdiction to try this case and asked the
petitioners to raise the issue of jurisdiction by adducing evidence before
the Special Court to be set up for the trial of this case. The Supreme
1376 Id., Para 102 of the judgement. Article 100 of the UNCLOS, 1982, deals with the
duty to cooperate in the repression of piracy. It provides that all States shall
cooperate to the fullest possible extent in the repression of piracy on the high
seas or in any other place outside the jurisdiction of any State.
1377 Id., at 10.
1378 Ibid.
1379 Id., at 11.
380
Court also restrained the Italian Ambassador from leaving India until
the date of the next hearing, i.e., 2nd April 2013.1380 Italy sought
clarification from India regarding the conditions applicable to the
marines on their return and whether they could be subjected to death
penalty under Indian law. India informed Italy that the marines will not
be liable for arrest if they return to India within the time frame laid
down by the Supreme Court, and that according to Indian
jurisprudence, this case would not fall in the category of rarest of rare
cases which attract the death penalty. After these assurances were given
by India to Italy, the Italian marines reported in New Delhi on 22nd
March 2013. On 2nd April 2013, the Supreme Court vacated its order
restricting the travel of the Italian Ambassador outside India.1381
On 1st April 2013, as per the directions given by the Supreme Court,
the Ministry of Home Affairs ordered the National Investigating
Agency (NIA) to investigate this case. The NIA filed a FIR on 4th April
2013, replicating the original FIR filed by the Kerala Police, which
booked the marines for murder (under Section 302, IPC), attempt to
murder (under Section 307, IPC), mischief causing damage to the
amount of fifty rupees or upwards (under Section 427, IPC), read with
Section 34 of the IPC (common intention). The NIA also invoked
Section 3 of the SUA Act, 2002, which deals with offences against ship,
fixed platform, cargo of a ship, maritime navigational facilities, etc.1382
In February 2014, the North Atlantic Treaty Organization (NATO)
warned India that using anti terrorism and maritime security legislation
to try the Italian marines would undermine international efforts to
combat piracy. NATO Chief Anders Fogh Rasmussen opined that this
could have possible negative implications for the international fight
against piracy.1383 On 6th February 2014, in order to ease diplomatic
tension between India and Italy, the Government of India decided that
the Italian marines will not be tried under the SUA Act, 2002. However,
even after more than two years of being charged with the investigation
of this case, the NIA has not filed the charge sheet.1384 On 13th January
1380 Ibid.
1381 Id., at 12.
1382 Ibid.
1383 Available at: http://www.reuters.com/article/2014/02/12/us-italy-india-marines-
nato- idUSBREA1B1DU20140212 (Visited on May 23, 2015).
1384 Available at: http://www.ndtv.com/india-news/fishermen-deaths-india-drops-
death- penalty- clause-for-italian-marines-550072 (Visited on May 23, 2015).
381
2015, the Supreme Court allowed ailing Italian marine Massimiliano

Latorre to stay in Italy for three more months on medical grounds. On
8th April 2015, the Supreme Court allowed him to stay in Italy till 15th
January 2016 on health grounds. Earlier, Latorre was allowed by the
Apex court to go to Italy on 12th September 2014 for four months for
medical treatment after he suffered a stroke on 31st August 2014. The
Court expressed concern over the delay in holding trial against the
marines and said that the trial should be completed as soon as possible.
The trial against the marines is expected to commence only after the
return of Massimiliano Latorre.1385 It is a matter of shame for the
country’s judicial system that the marines are awaiting trial even after
three and a half years of the shootout incident.
On 15th January 2015, the European Parliament adopted a resolution
asking India to allow the return of the two Italian marines to Italy. India
replied that the matter was sub judice and was being discussed between
the Governments of India and Italy. Syed Akbaruddin, spokesperson of
the Ministry of External Affairs, said that under these circumstances the
European Parliament would have been well advised not to adopt the
Resolution.1386
8.7.6: Order of the ITLOS

On 26th June 2015, by a written notification, the Republic of Italy
instituted proceedings against the Republic of India before an Arbitral
Tribunal to be constituted under Annex VII of the UNCLOS, 1982.
Through this notification Italy requested that India should adopt and
implement certain provisional measures within two weeks from the
date of the notification. However, on 13th July 2015, at a hearing before
the Supreme Court of India, the Indian Government refused to support
the implementation of provisional measures sought by Italy. As a result
of this, on 21st July 2015, Italy requested the International Tribunal for
1385 Available at: http://timesofindia.indiatimes.com/india/SC-allows-Italian-Marine-

Massimiliano-Latorre-to-stay-in-Italy-till-July-15/articleshow/46863448.cms
1386 Available at: http://indianexpress.com/article/india/india-others/fishermen-
killing- case-european-parliament-adopts-resolution-asks-india-to-allow-return-
of-italian- marines/ (Visited on May 23, 2015).
382
the Law of the Sea (ITLOS) to prescribe the following provisional

measures:1387
I. India shall refrain from taking or enforcing any judicial or
administrative measures against the two Italian Marines arrested in
connection with the Enrica Lexie incident, and from exercising any
other form of jurisdiction over that incident;1388 and
II. India shall take all measures necessary to ensure that restrictions
on the liberty, security and movement of the Marines be immediately
lifted to enable Sergeant Salvatore Girone to travel to and remain in
Italy and Sergeant Massimiliano Latorre to remain in Italy throughout
the duration of the proceedings before the Annex VII Tribunal.1389
On 24th August 2015, in The Enrica Lexie Incident (Italy vs. India),
the International Tribunal for the Law of the Sea comprising of 21
Judges, by a majority of 15:6, ordered both India and Italy to suspend
all Court proceedings and to refrain from initiating fresh ones which
might aggravate or extend the dispute submitted to the Annex VII
Arbitral Tribunal or might jeopardize or prejudice the carrying out of
any decision which the Arbitral Tribunal may render. The Tribunal
further ordered both countries to submit compliance reports by 24th
September 2015 and held that the Arbitral Tribunal would decide as to
which State has the jurisdiction to hear the case.1390 As of December
2015, the matter is still pending for adjudication before the Arbitral
Tribunal.
1387 Available at:

https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.24_prov_meas/Re
que st/Request_of_the_Italian_Republic_r.pdf (Visited on August 26, 2015).
1388 Ibid.
1389 Ibid.
1390 Ibid.
383
CHAPTER - IX:
CONCLUSION AND
SUGGESTIONS
“They that go down to the sea in ships and occupy their business
in great waters; these men see the works of the Lord and his wonders
in the deep”.
The Holy Bible (Psalm 107) 1391
9.1 CONCLUSION
Law of sea is a dynamic concept. It has a long history spanning over
the past 3000 years. Between 1000 BC and 600 BC, the people of
Rhodes (an independent seafaring and trading island south of modern
Greece) developed some rules of law to deal with shipping disputes.
They also enacted a code of maritime law, i.e., “Lex Rhodia”, whose
various versions were collected in the seventh century. It was the
world’s first code dealing with maritime law. Rhodian maritime law
was later adopted by the Roman Empire. Subsequently, many other
Codes of maritime law were adopted in the fourteenth and fifteenth
centuries in different parts of Europe.1392 On the basis of military and
commercial power, various claims to sovereignty over various parts of
the open sea were made during the fifteenth and sixteenth centuries.
However, due to the efforts of Hugo Grotius, who criticized and
opposed the extensive claims of maritime sovereignty in his treatise
titled “Mare Liberum”, published in the year 1609, the principle of
maritime sovereignty ultimately gave way to the principle of freedom
of the high seas by the first quarter of the nineteenth century.
1391 Susan Ratcliffe, Oxford Dictionary of Quotations and Proverbs 245 (Oxford
University Press, New Delhi, 2006).
1392 Gerhard Von Glahn, Law Among Nations: An Introduction to Public
International Law 322 (Mac Millan Publishing Co., New York, USA, 1976). The
Codes of maritime law enacted during this era in Europe were “Consolato Del
Mare” (Barcelona), “Rolles De Oleron” (England and France), “Black Book of
the Admiralty” (England), “Sea Code of Wisby” (Northern Europe) and
“Ordinancie” (Amsterdam).
Throughout this period, customary international law was the principle

source of the international law of the sea.1393
In the modern era, codification of the international law of the sea
took place for the first time at the First United Nations Conference on
Law of the Sea, held at Geneva from 24th February to 24th April 1958.
The Conference adopted four conventions, i.e., The Convention on the
Territorial Sea and the Contiguous Zone, The Convention on the
Continental Shelf, The Convention on the High Seas, and The
Convention on Fishing and Conservation of the Living Resources of
the High Seas.1394 However, this Conference and the Second United
Nations Conference on Law of the Sea, held at Geneva from 16th March
to 26th April 1960, left many important issues unsettled. Therefore, it
was felt imperative by the United Nations to convene another
Conference.1395
The catalyst for the creation of the modern law of the sea was the
decision taken by the UN General Assembly in 1970 to convene a
conference in order to negotiate a new international legal framework on
this subject. Although the outcome of the Third United Nations
Conference on the Law of the Sea (UNCLOS III) was a treaty, it is
generally accepted that the United Nations Convention on the Law of
the Sea (UNCLOS), 1982, largely crystallizes customary international
law. Apart from the question of deep sea bed mining, this Convention
is widely acknowledged as creating a universal legal order for the
Oceans. Many lessons can be learnt from UNCLOS III about the
creation of universal law. In particular, the consensus decision making
techniques and universal participation at the conference can be
highlighted as significant factors in the impact of the UN Convention
on the Law of the Sea (UNCLOS), 1982, on customary international
law. A major feature of legal development in this field is the
intertwining of treaty and custom in the law making process.1396
Volume I (Peace) 721 (Pearson Education Ltd., New Delhi, 2005).
1395 Id., at 228.
1396 James Harrison, Evolution of the Law of the Sea: Developments in Law Making
in the Wake of the 1982 Law of the Sea Convention (2007) (Unpublished Ph.D.
Thesis, University of Edinburgh). Available at:
https://www.era.lib.ed.ac.uk/bitstream/handle/1842/3230/J;jsessionid=336CEEF
C8 FF80276E5B694CD264B1078?sequence=1 (Visited on July 26, 2015).
386
The year 2015 marks the thirty third anniversary of the UN

Convention on Law of the Sea (UNCLOS), which was adopted by the
Third United Nations Conference on Law of the Sea, and opened for
signature at Montego Bay, Jamaica, on 10th December 1982. The
UNCLOS, 1982, is considered to be “a Constitution for the Oceans”.
This Convention, designed to regulate the use and utilization of 71% of
the Earth’s surface, has been praised as the most comprehensive
political and legislative work ever undertaken by the United Nations.
Numerous new concepts related to the use of the oceans were
developed by this Convention, such as transit passage, archipelagic
waters, exclusive economic zone and the international seabed authority.
The UNCLOS, 1982, entered into force on 16th November 1994, and as
of December 2015, 166 countries and the European Union are parties to
it. It is stated in the beginning of the Convention that the codification
and progressive development of the law of the sea will contribute to the
strengthening of peace, security, cooperation and friendly relations
among all nations in conformity with the principles of justice and equal
rights.1397
The UNCLOS, 1982, is hailed as a great milestone in the
international legal order. It has been aptly described as a shining
example of international cooperation, diplomacy and the role of
international law in the regulation of international affairs. It is
considered to be one of the most complex and ultimately successful
international diplomatic negotiations that took place in the twentieth
century. The impact of this Convention on customary international law,
on whose crystallization and development it exercises a powerful
influence, makes the Convention as well as the main substantive
questions it addresses, a matter of interest for all States even beyond the
circle of State parties. While this Convention has had huge success in
stabilising State claims to jurisdiction over the Oceans, it is also true
that the law needs to be flexible and able to change in order to reflect
new circumstances like increased national sovereignty, greater
environmental protection, or enhanced global security. Through the
negotiation of this Convention, various States attempted to settle in a
spirit of mutual understanding and cooperation, all issues relating to the
law of the sea. However, the adoption of this Convention cannot be
1397 Yann Huei Song and Stein Tonnesson, “The Impact of The Law of The Sea
Convention on Conflict and Conflict Management in The South China Sea” 44
ODIL 235 (2013).
387
termed as the end of the law making process.1398 Like other laws, this
Convention is not exempt from the imperious necessity of the process
of change. The law of the sea, like all other branches of international
law, must be able to balance the need for stability with the desire for
change. Therefore, if this Convention is to provide an enduring legal
framework, it must be able to evolve in the light of the shifting legal,
political and technological environment.1399
This large and complex Convention provides the basis for the
jurisdiction that a country may exercise at sea in its various roles as a
coastal, port, or flag State. It sets out the rights and duties of a State
with regard to the various uses of the oceans and prescribes the regime
of maritime zones that establishes the nature of State sovereignty and
sovereign rights over ocean space and resources. It also provides the
principles and norms for navigational rights and freedoms, flag State
responsibility, combating piracy, right of visit, hot pursuit and regional
cooperation, all of which are relevant to the maintenance of security
and good order at sea. However, this large and complex convention
suffers from some limitations. There are many examples of apparent
non compliance with its norms and principles. The chief causes of these
problems lie in basic conflicts of interest between various countries on
various maritime issues, the built in ambiguities of the UNCLOS, 1982,
in several of its key regimes, and the geographical complexity of East
Asia.1400 The various limitations of the UNCLOS, 1982, are discussed
below:
I. It is a major limitation of UNCLOS, 1982, as a foundation for a
maritime security regime that the USA has still not ratified it. The USA
was among the nations which participated in the third United
Nations Conference on the Law of the Sea, which resulted in the
international treaty known as the United Nations Convention on the
Law of the Sea (UNCLOS), 1982.1401 The USA also participated in the
1398 Supra note 6.

1399 Ibid.
1400 Sam Bateman, “UNCLOS and its Limitations as the Foundation for a Regional
Maritime Security Regime” 19 KJDA 28 (2007). Also available at:
http://www.researchgate.net/publication/233290964_UNCLOS_and_Its_Limitati
ons _as_the_Foundation_for_a_Regional_Maritime_Security_Regime (Visited
on July 29, 2015).
1401 Available at: https://en.wikipedia.org/wiki/United_States_non-
ratification_of_the_UNCLOS (Visited on July 29, 2015).
388
subsequent negotiations regarding modifications to the treaty from 1990

to 1994.1402 Although the USA now recognizes the UNCLOS, 1982
(except Part XI), as the codification of customary international law, it
has not yet ratified it. The main problem which the USA initially had
with the ratification of the UNCLOS, 1982, was the objection of its
powerful mining lobby to Part XI of the Convention dealing with deep
sea bed mining. It was argued that Part XI was unfavourable to
American economic and security interests. It was further argued that
the provisions of the Convention were not free market friendly and
were designed to favour the economic systems of the Communist
States. However, more recently, the concern of the USA has shifted to
the security environment with perceptions that ratification of the
UNCLOS, 1982, could inhibit maritime operations by the American
forces.1403
II. Under the provisions of the UNCLOS, 1982, there is scope for
countries to declare excessive territorial sea baselines that have the
effect of extending their claimed maritime jurisdiction. Territorial sea
baselines are the starting points from which all maritime zones are
measured. Excessive claims have the effect of ostensibly moving any
line of equidistance further away from the coast and can serve as an
opening position in maritime boundary negotiations between two or
more States. They can also result in maritime boundary disputes
between neighbouring countries. Territorial sea baselines may be either
normal or straight.1404 Coastal States have a powerful incentive to make
maximum use of straight baselines as it enables them to maximize the
extent of their maritime jurisdiction. Almost all East Asian countries
have used a straight baseline system.1405 In most cases, the use of
straight baselines has been subject to controversy and regarded as
excessive by other countries, particularly the USA. The concept of
straight baselines has been distorted beyond recognition by increasingly
1402 Ibid.
1403 Supra note 10.
1404 Id., at 33.
1405 Id., at 35. The East Asian countries which have used the straight baseline system
are Cambodia, China, Japan, North Korea, South Korea, Malaysia, Myanmar,
Philippines, Thailand and Vietnam
389
liberal interpretations of the key criteria mentioned in Article 7 of the

UNCLOS, 1982.1406
III. Many countries regard the obligation to allow foreign ships the
right of innocent passage through their territorial sea as a significant
limitation on their sovereignty and a potential threat to their national
security. The major problem with the innocent passage regime is the
requirement of some coastal and archipelagic States for prior
notification and authorization of the innocent passage of warships. The
arguments against prior authorization or notification gain strength from
the failure during the UNCLOS III to have the requirement included in
the Convention despite the efforts by many countries to have it
included. Another difficult issue with innocent passage lies in the
determination of the question whether or not the passage of a particular
vessel is non innocent.1407 The burden of proving non innocent passage
appears to rest with the coastal State as the enforcement authority.
However, it is difficult to prove whether a vessel is engaging in one of
the activities mentioned under Article 19(2) of the UNCLOS, 1982, that
are deemed to be prejudicial to the peace, good order or security of the
coastal State.1408
1406 Ibid. Normal baselines are not controversial under international law. Article 5 of
the UNCLOS, 1982, defines normal baseline as “the low water line directly
corresponding to the coastline marked on large scale charts officially recognized
by the coastal State”. They close off the internal waters of the coastal State
concerned and provide the inner limit of the offshore maritime zones (i.e.
territorial sea, contiguous zone, exclusive economic zone and continental shelf).
They are also instrumental in establishing the outer limits of these zones. If
States can shift baselines further out to the sea, the area of the offshore zones
will be automatically extended without altering the maximum width of these
zones as allowed by the UNCLOS, 1982. Article 7 of the UNCLOS, 1982,
establishes three criteria for drawing straight baselines, i.e., “they should only be
used in localities where the coastline is deeply indented, or if there is a fringe of
islands along the coast in its immediate vicinity; the drawing of straight baselines
must not depart to any appreciable extent from the general direction of the coast,
and the sea areas lying within the lines must be sufficiently linked to the land
domain to be subject to the regime of internal waters; account must be taken, in
determining particular baselines, of economic interests peculiar to the region
concerned, the reality and importance of which are clearly evidenced by long
usage”. These seemingly strict criteria are interpreted very loosely or even
ignored in the general practice of States.
1407 Id., at 37.
1408 Id., at 38. For details on the regime of innocent passage see Chapter IV.
390
IV. The regime of straits’ transit passage provided by the UNCLOS,

1982, gives all ships and aircraft the right to travel through straits used
for international navigation in their normal operational mode, on, under
or over water.1409 Coastal States adjoining a strait used for international
navigation have considerable service responsibilities towards the
vessels passing through their shores (for example navigational aids and
information, search and rescue operations and marine pollution
contingency arrangements). But unfortunately, the UNCLOS, 1982,
makes no provisions regarding any form of cost recovery for the
services rendered. Compulsory pilotage schemes have been considered
from time to time as a means of enhancing navigational safety and cost
recovery, but they have not been introduced because refusing entry of a
vessel to a strait on the ground that it would not accept a pilot would
amount to hampering transit passage and thus run contrary to Article 44
of the UNCLOS, 1982.1410 The application of Article 43 (the burden
sharing Article) of the UNCLOS, 1982, providing for cooperation
between the user States and the States bordering a strait on the
provision of navigational and safety aids and the prevention of marine
pollution, is particularly problematic. Many user States have been
reluctant to contribute to the costs.1411
V. Under the provisions of Part IV of the UNCLOS, 1982, the
archipelagic States exercise full sovereignty over archipelagic waters. It
is qualified only by the regime of archipelagic sea lanes passage, which
allows ships and aircraft of all nations the right of continuous,
1409 Ibid. Article 38(2) of the UNCLOS, 1982, defines transit passage as the exercise
of the freedom of navigation and over flight solely for the purpose of continuous
and expeditious transit of the strait between one part of the high seas or an
exclusive economic zone and another part of the high seas or an exclusive
economic zone. However, the requirement of continuous and expeditious transit
does not preclude passage through the strait for the purpose of entering, leaving
or returning from a State bordering the strait, subject to the conditions of entry to
that State.
1410 Id., at 39. Article 44 of the UNCLOS, 1982, provides that States bordering straits
shall not hamper transit passage and shall give appropriate publicity of any
danger to navigation or over flight within or over the strait of which they have
knowledge. There shall be no suspension of transit passage.
1411 Id., at 40. Article 43 of the UNCLOS, 1982, provides that user States and States
bordering a strait should by agreement cooperate: (a) in the establishment and
maintenance in a strait of necessary navigational and safety aids or other
improvements in aid of international navigation; and (b) for the prevention,
reduction and control of pollution from ships.
391
expeditious and unobstructed transit through archipelagic waters along

and over sea lanes which may be designated by the archipelagic
State.1412 If sea lanes are not designated, then the right of archipelagic
sea lanes passage may be exercised through the routes normally used
for international navigation.1413 Outside these sea lanes, ships of all
nations have the right of innocent passage only. The vast difference in
operational terms between the liberal nature of the archipelagic sea
lanes passage regime and the restrictions with innocent passage has
made the identification of archipelagic sea lanes a difficult issue. Every
archipelagic State seeks to minimise the number of sea lanes whereas
the user States wish to maximize the number of sea lanes. Interpreting
the rules for drawing archipelagic sea lanes, as set out in the UNCLOS,
1982, is also proving to be more complicated than what was
anticipated.1414
VI. Differences of opinion have also emerged among some States
over the rights and duties of coastal States in their exclusive economic
zone (EEZ) vis a vis those of other States. This is particularly an issue
with regard to the rights of other States to conduct certain activities
such as military operations, military surveillance, intelligence
collection and hydrographical surveying in the EEZ of a coastal State
without its permission. Some coastal States opine that their consent
must be obtained before conducting such activities while other States,
particularly the USA, strongly argue that such activities are part of the
freedoms of navigation and over flight. Negotiation of the EEZ regime
at the UNCLOS III was difficult and complex as there were widely
divergent viewpoints about the status of the new zone. One major
group (the territorialist States) chiefly comprising of the developing
countries saw the EEZ as an extension of national jurisdiction in which
the coastal States would enjoy sovereignty subject to certain
1412 Id., at 42. Article 53(1) of the UNCLOS, 1982, provides that an archipelagic
State may designate sea lanes and air routes thereabove, suitable for the
continuous and expeditious passage of foreign ships and aircraft through or over
its archipelagic waters and the adjacent territorial sea.
1413 Ibid. Article 53(12) of the UNCLOS, 1982, provides that if an archipelagic State
does not designate sea lanes or air routes, the right of archipelagic sea lanes
passage may be exercised through the routes normally used for international
navigation.
1414 Ibid. Article 52(1) of the UNCLOS, 1982, provides that subject to Article 53 and
without prejudice to Article 50, ships of all States enjoy the right of innocent
passage through archipelagic waters, in accordance with Part II, section 3.
392
limitations. However, this position was sharply disputed by the great

maritime powers led by the USA and the USSR, who saw the EEZ as a
part of the high seas where the coastal States only enjoyed some rights
over offshore resources.1415 The compromise which broke the deadlock
was that the EEZ should be regarded as a separate zone in its own right
(sui generis), which was neither included in the high seas nor in the
territorial sea of a coastal State. Thirty three years later, this political
tug of war over the status of the EEZ still persists and it remains a zone
of tension in the relations of many States. The USA has steadfastly
maintained a liberal interpretation of the rights and freedoms enjoyed
by other States in the EEZ of a coastal State.1416 It has coined the
expression “international waters” to collectively describe the high seas,
the EEZ and the contiguous zone. On the other hand, some coastal
States have sought to strengthen the extent of their jurisdiction over
their EEZ by claiming that other States should conduct military
activities and hydrographical surveys in that zone only with their prior
consent.1417
VII. The UNCLOS, 1982, requires that every State shall fix
conditions for the right to fly its flag on ships. It further requires that
there must be a genuine link between the flag State and the ship.1418
However, ships flying a “flag of convenience”1419 rarely have such a
link with the flag State and the relevant ship registry may not even be
in the country concerned. For example: Cambodia and Myanmar have
been declared “flag of convenience” countries by the International
1415 Id., at 47.

1416 Ibid.
1417 Id., at 48.
1418 Id., at 49. Article 91(1) of the UNCLOS, 1982, provides that every State shall fix
the conditions for the grant of its nationality to ships, for the registration of ships
in its territory, and for the right to fly its flag. Ships have the nationality of the
State whose flag they are entitled to fly. There must exist a genuine link between
the State and the ship. Article 91(2) provides that every State shall issue to ships
to which it has granted the right to fly its flag, documents to that effect.
1419 Flag of convenience is the business practice of registering a merchant ship in a
sovereign State different from that of the ship’s owners, and flying that State’s
civil ensign on the ship. Ships are registered under flags of convenience to
reduce operating costs and to avoid the regulations of the owner’s country. The
term flag of convenience has been in use since the 1950’s. A ship operates under
the laws of its flag State and these laws are invoked if the ship is involved in a
case under admiralty law.
393
Transport Workers Federation. Article 94 of the UNCLOS, 1982,

requires that flag States should effectively exercise their jurisdiction
and control in administrative, technical and social matters over ships
flying their flag.1420 But unfortunately, much of the breakdown in law
and order at sea can be traced to the fact that some flag States are not
discharging their responsibilities in accordance with this Article when
ships flying their flag commit offences at sea. This is true for virtually
all categories of maritime crime, but particularly illegal fishing, drug
and arms trafficking, environmental pollution and human trafficking.1421
VIII. Under Articles 100 to 107, the UNCLOS, 1982, includes a
specific regime for countering piracy on the high seas. By the
application of Article 58(2), these provisions also extend to the EEZ’s
of coastal States.1422 However, this regime does not apply if the piratical
act occurs within the territorial sea, archipelagic waters or internal
waters of a coastal State, or if the piratical act is committed by persons
who are already on board the ship as passengers, crew members or
stowaways. In the former situation, the act is within the sole
jurisdiction of the relevant coastal State, while in the latter case, the act
is within the jurisdiction of the flag State of the vessel affected. The
Maritime Navigation (SUA Convention), 1988, was enacted to close the
gap created by the limited definition of piracy mentioned in the
UNCLOS, 1982. This Convention deals with all kinds of criminal
violence at sea. However, this Convention has not altered the definition
of piracy as mentioned in the UNCLOS, 1982, and the offenders cannot
be charged with piracy under its provisions.1423
IX. Under the provisions of the UNCLOS, 1982, hot pursuit of a
foreign ship may be undertaken when the competent authorities of the
coastal State have good reason to believe that the ship has violated the
laws and regulations of that State. Such pursuit must be commenced
while the foreign ship or one of its boats is within the internal waters,
archipelagic waters, territorial sea or the contiguous zone of the
pursuing State, and may only be continued if the pursuit has not been
1420 Supra note 10, at 49. For details on Article 94, see Chapter IV.
1421 Ibid.
1422 Ibid. Article 58(2) of the UNCLOS, 1982, provides that Articles 88 to 115 and
other pertinent rules of international law apply to the exclusive economic zone in
so far as they are not incompatible with Part V of this Convention.
1423 Id., at 50.
394
interrupted.1424 The right of hot pursuit ceases as soon as the ship

pursued enters the territorial sea of its own State or of a third State. It is
a major limitation of the UNCLOS, 1982, that a State cannot pursue a
vessel into the territorial waters of another State.1425
X. International and regional cooperation are common themes in the
UNCLOS, 1982, as well as in other Conventions dealing with maritime
safety and security.1426 However, while the UNCLOS, 1982, exhorts
regional countries to cooperate, there is also a paradox. The Convention
also permits the extension of maritime space under some form of
national jurisdiction, particularly through the introduction of the EEZ.
Thus it supports and actually encourages nationalistic approaches
towards managing the maritime domain. Such approaches inhibit the
development of cooperation among various countries and the
establishment of effective international regimes. This paradox is very
apparent in the seas of Southeast Asia where countries are generally
determined to obtain maximum benefit from their rights under the
UNCLOS, 1982. These nationalistic approaches quite fundamentally
limit the prospects for maritime cooperation and regime building in the
region.1427
XI. It may reasonably be objected that the UNCLOS, 1982, does not
bestow upon land locked States any definite rights of transit. They have
very limited access to the sea as their access to the sea depends to a
1424 Id., at 51. Article 111(1) of the UNCLOS, 1982 provides that the hot pursuit of a
foreign ship may be undertaken when the competent authorities of the coastal
State have good reason to believe that the ship has violated the laws and
regulations of that State. Such pursuit must be commenced when the foreign ship
or one of its boats is within the internal waters, the archipelagic waters, the
territorial sea or the contiguous zone of the pursuing State, and may only be
continued outside the territorial sea or the contiguous zone if the pursuit has not
been interrupted. It is not necessary that, at the time when the foreign ship within
the territorial sea or the contiguous zone receives the order to stop, the ship
giving the order should likewise be within the territorial sea or the contiguous
zone. If the foreign ship is within a contiguous zone, as defined in article 33, the
pursuit may only be undertaken if there has been a violation of the rights for the
protection of which the zone was established.
1425 Ibid. Article 111(3) of the UNCLOS, 1982, provides that the right of hot pursuit
ceases as soon as the ship pursued enters the territorial sea of its own State or of
a third State.
1426 Ibid.
1427 Id., at 52.
395
great extent upon the transit States acting in good faith in the
implementation of Part X (Articles 124 to 132) of the Convention.1428
The modern Indian maritime law has developed over the past 175
years. However, most of the statutes dealing with admiralty law were
enacted by the British Parliament over 160 years ago. They have
become obsolete in the modern era and deserve to be repealed and re
enacted. After independence, the Parliament of India has enacted some
statutes dealing with various aspects of maritime law. These statutes are
quite comprehensive on the matters dealt with therein. They have been
enacted on the lines of international conventions dealing with various
aspects of maritime law.1429 India is also a party to several international
conventions dealing with various aspects of maritime law. The
Supreme Court of India, various High Courts and the Law Commission
of India have played a commendable role in the development and
interpretation of maritime law over the past 65 years.1430
Despite several rounds of talks and negotiations, India has not been
able to solve the long standing Sir Creek Maritime Boundary Dispute
with Pakistan. However, it has solved similar maritime boundary
disputes with Bangladesh, Myanmar and Sri Lanka. India has also
entered into maritime boundary agreements with its maritime
neighbours, i.e., Indonesia, Maldives, Myanmar, Sri Lanka and
Thailand.1431
Piracy has been with us since men first went to the sea in ships. At
its greatest moments, piracy becomes a major part of history itself.
Piracy originated and flourished in the Mediterranean Sea in the ancient
era around 3300 years ago because of certain geographic and economic
factors like rocky shoreline, barren land, low fishing yield, etc. The
fishermen raiders were the first pirates, who not only attacked ships but
1428 Supra Note 4, at 253. For details on the regime of Land Locked States, see
Chapter IV.
1429 The statutes enacted by the Parliament of India dealing with maritime law are
The Merchant Shipping Act, 1958, The Major Port Trusts Act, 1963, The Marine
Insurance Act, 1963, The Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zones Act, 1976, The Maritime Zones of
India (Regulation of Fishing by Foreign Vessels) Act, 1981, The Multimodal
Transportation of Goods Act, 1993, and The Suppression of Unlawful Acts
Against the Safety of Maritime Navigation and Fixed Platforms on Continental
Shelf Act, 2002.
1430 For details, see Chapter V.
1431 Ibid.
396
also coastal towns.1432 In an organized form, they were known by

various names such as Sea Peoples, Nine Bows, Tjeker People, Lukka,
Sherden, etc. Romans declared pirates as “communes hostes gentium”
or enemies of whole mankind. They took military action against pirates
on a massive scale, which resulted in the elimination of 10,000 pirates
and the transformation of 20,000 of them into agriculturists.1433
Piracy was at its zenith during the sixteenth and seventeenth
centuries and flourished mainly in the Caribbean Sea and the
Mediterranean Sea. Several notorious pirates of this era like Henry
Morgan, William Kidd, Bartholomew Roberts and Edward Teach
(Blackbeard) are romanticised in popular culture to this day. The period
between 1650 AD and 1730 AD is considered to be the “Golden Age of
Piracy”.1434 All pirate crews were governed by the Ship’s Articles (a
rough Constitution) and the pirate judicial system. Piracy began to
decline in the latter half of the eighteenth century. As a result of the
crackdown on pirates by the Royal Navy, piracy died out by the 1840’s.
The pirate rebellion against those in authority came as a blessing in
disguise for the Royal Navy. It helped the Royal Navy to transform
itself into the most professional as well as the largest naval force in the
world in the nineteenth century. As a result, it ultimately sowed the
seeds of British imperialism and the British Empire.1435
In the first decade of the twenty first century (2000-2010), Somalia
proved to be a safe haven for pirates. Somali pirates kept the world
navies on tenterhooks and proved to be a nightmare for merchant
vessels passing near the horn of Africa. However, the crisis phase of
Somalia based piracy appears to be coming to an end. Somalia based
piracy has declined due to combined efforts of the shipping industry,
world navies, international organizations and private maritime security
companies, apart from the establishment of the Federal Government of
1432 Henry A. Ormerod, Piracy in the Ancient World 13-14 (The John Hopkins
University Press, London, 1997).
1433 Available at: http://en.wikipedia.org/wiki/AncientMediterraneanPiracy (Visited
on February 8, 2014).
1434 Available at: http://en.wikipedia.org/wiki/GoldenAgeofPiracy (Visited on
February 12, 2014).
1435 Frank Sherry, Raiders and Rebels: A History of the Golden Age of Piracy 122
(Harper Collins Publishers, New York, 2007).
397
Somalia in August 2012.1436 Although many of the stakeholders engaged

in combating Somali pirates have got their mandates extended through
2016, uncertainty prevails. If those mandates are not further extended, it
is feared that the incidents of piracy in and around Somali waters may
increase again and the progress made in combating Somali pirates may
be reversed. Without the active participation of the broader
international community, the responsibility of combating piracy will
fall on the regional countries. Unless the regional countries effectively
counter piracy, the problem will not go away.1437 During the previous
two years, the rise of piracy in and around the waters of Bangladesh
and Indonesia show that global piracy will continue to be a menace.1438
Apart from the UNCLOS, 1982, dealing with piracy, there are many
other international legal instruments which deal with various kinds of
criminal violence at sea. For example, the SUA Convention, 1988,
Protocol to the SUA Convention for the Suppression of Unlawful Acts
Against the Safety of Fixed Platforms Located on the Continental
Shelf, 1988, Djibouti Code of Conduct, 2009, IMO Code of Practice for
the Investigation of Crimes of Piracy and Armed Robbery Against
Ships, 2009, etc.1439 However, it is ironical that more pirates are released
by the warships that capture them than are passed on for prosecution.
Many navies follow the “capture, disarm and release” policy for
dealing with pirates. The explanations proffered for this policy are that
many States do not have national laws criminalizing piracy and that
evidence is usually insufficient to prosecute suspects. They also fear
asylum claims by pirates.1440 Very few States have taken the initiative
of enacting piracy specific legislation. Belgium, Japan, Seychelles,
Mauritius and the USA are amongst the few to have done so.1441 The
inevitable consequence of non enactment of piracy specific legislation
1437 Ibid.
1438 Id., at 88.
1439 For the detailed analysis of these instruments, see Chapter VI.
198 (2012).
1441 Sulakshna Beekarry, “Assessing Current Trends and Efforts to Combat Piracy”
46 CWRJIL 174 (2013).
398
is that many countries still have considerable lacunae in their domestic

law regarding the crime of piracy.1442 This is one area where efforts
ought to continue, together with international assistance in supporting
regional prosecutions, while also monitoring the situation in Somalia so
that it may ultimately allow for its prosecutions in the future.1443
It is apparent from the study of the present situation that there is no
shortage of analysis, instruments or agreements on the ways and
methods to fight piracy. United Nations (UN) and other international
organizations like International Maritime Organization (IMO),
International Maritime Bureau (IMB), United Nations Office on Drugs
and Crime (UNODC), etc, have taken various initiatives to combat
piracy. Major naval powers like the USA, UK, China, India and Japan
have also deployed their forces in various piracy prone areas and made
contributions towards making the oceans a safer place for navigation. It
is also very clear that there is a sufficient difference in the way piracy
has evolved around the world to preclude any single strategy or any
single legal mechanism, from providing a uniform and sustainable
solution. Apart from enacting piracy specific laws, increasing the
effective use of previously established mechanisms is also important. In
addition to more effectively using the tools and resources available to
combat piracy, the fight against piracy requires better coordination and
information sharing among the parties involved. This would include
better cooperation between different agencies, both nationally as well
as internationally, and an integration of enforcement efforts. Various
countries and international bodies with responsibility for specific areas
and issues must cooperate in the efforts to share information,
responsibility and the work involved.1444
Maritime piracy is a business, and it will persist as long as there is
money to be made. Identifying and exploiting potential vulnerabilities
in the business model can reduce the profitability of piracy and help
restrict it to an opportunistic activity.1445 Once established on an
organized basis, it becomes increasingly difficult to prevent attacks on
ships and the associated social disruptions on land. The early
1442 Id., at 175.

1443 Ibid.
1444 Hugh R. Williamson, “New Thinking in the Fight Against Marine Piracy:
Financing and Plunder Pre-Empting Piracy Before Prevention Becomes
Necessary” 46 CWRJIL 352 (2013).
1445 Id., at 354.
399
identification of potential piracy outbreaks can allow for the

implementation of a pre-emption strategy to deal with emerging
incidents and precursor events, and also to prevent the development of
full scale organized piracy. The huge costs associated with piracy in
Somalia may well have been avoided had there been earlier
interventions. This is not just to protect shipping in the region, but more
importantly, to deal with precursor events such as the exploitation of
the vulnerable coastal regions of weak or failing States by foreign
fishing vessels and other interests. This is a situation where an ounce of
prevention could have avoided many millions of Pounds, Euros and
Dollars of cure.1446
Pirates have been regarded as “hostis humani generis” or the
enemies of whole mankind since the days of the Roman Empire. As a
result, piracy has historically been subject to universal jurisdiction as a
matter of customary international law. Under modern international law,
universal jurisdiction is firmly established by the Geneva Convention
on the High Seas, 1958, and the United Nations Convention on Law of
the Sea, 1982.1447 Piracy poses serious dangers to international peace
and security. Effective suppression requires a combination of
combating piratical activities and the prosecution of pirates, which in
turn requires efforts at both national as well as international levels, and
the mobilization of both public and private stakeholders. Due to the
absence of an international anti piracy court and the shortcomings of
the existing national and international anti piracy law, a coherent and
coordinated international anti piracy regime has not yet been
established. Consequently, although piracy is an international
phenomenon, its suppression is largely dependent upon individual
States.1448 Many western countries are reluctant to try pirates in their
own courts. Some of them have entered into a Memorandum of
Understanding with African countries (Kenya and Seychelles) for the
trial of pirates captured by them.1449 Western countries are apprehensive
of asylum claims by pirates upon their release from prison. However,
1446 Ibid.
1447 Available at:
1448 Chi Manjiao, “A Note on China’s Legal and Operational Responses to
International Piracy” 44 ODIL 118 (2013).
1449 For details, see Chapter VII.
400
after a careful perusal of the relevant provisions of various international

covenants and conventions dealing with asylum claims, it can be aptly
concluded that the right to claim asylum is not absolute. It depends to a
great extent upon the discretion of the country in which asylum is
sought.1450
India is a great maritime power having the world’s fourth largest
Navy. Ninety percent of India’s international trade by volume and
seventy seven percent by value is seaborne. Among the various threats
to global as well as national maritime security, piracy and terrorism are
the most significant.1451 However, India does not have any law which
comprehensively deals with anti piracy and maritime security
measures, except the colonial legislations on admiralty jurisdiction
passed by the British Parliament over 160 years ago.1452 The Admiralty
Bill, 2005, and the Piracy Bill, 2012, were introduced in the Parliament
of India with the objective of comprehensively redrafting admiralty law
and anti piracy law. But both these Bills lapsed and could not culminate
into law as the Parliament was busy with other Bills that were
considered more important.1453 In India, criminal violence at sea can be
tackled by invoking the provisions of the Indian Penal Code, 1860, the
Navy Act, 1957, the Merchant Shipping Act, 1958, and the Suppression
of Unlawful Acts Against the Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002. However, these statutes are
not comprehensive enough to combat the menace of piracy.1454
India has entered into bilateral agreements with many countries like
Brazil, China, Kenya, Russia, Seychelles, South Africa, etc, to combat
piracy. India also cooperates with the United Nations and other
international and regional organizations to promote anti piracy and
maritime security measures. Indian Navy regularly conducts maritime
Reason To Allow Pirates To Escape Justice?” 34 FILJ 292 (2011).
1451 Admiral Nirmal Verma (The 20th Chief of the Naval Staff), Foreword to Bimal
Challenges and Solutions) (Eastern Book Company, Lucknow, 2012).
1452 For a detailed analysis of these laws, see Chapter V.
1453 For a detailed analysis of these Bills, see Chapter V.
1454 Ranjeet Sangle and V. Subramanian, “Shipping/Maritime Laws in India” 15,
available at:
http://www.inforise.org/docs/Research/shippinglawinindiaarticle.pdf (Visited on
September 5, 2014).
401
exercises with other Navies, focusing on anti piracy and maritime

security tactics. The Indian Naval ships have thwarted many piracy
attempts on merchant vessels during their deployment in anti piracy
operations in various piracy prone regions of the world. The Indian
Coast Guard and the Indian Marine Police also play a commendable
role to safeguard and protect the country’s territorial waters. The Indian
Coast Guard has also been proactively working with the Indian Navy to
combat piracy in the Indian Ocean.1455 However, India is facing several
challenges in coastal security like difference in governmental priorities,
poor policing, lack of resources, lack of integration among security
agencies, lack of identification and tracking system on fishing boats,
etc.1456
9.2 SUGGESTIONS
The author wishes to make the following suggestions to make the
UNCLOS, 1982, and the laws and policies dealing with maritime piracy
more effective:
I. A common regional understanding of various aspects of the law of
the sea where uncertainty exists, including coastal State rights in the
EEZ, right of land locked States to have access to the sea without
undue restrictions, and aspects of the navigational regimes established
by the UNCLOS, 1982, would constitute an important maritime
confidence and security building measure. While differences on
navigational issues do not usually cause problems, they can become
dangerous when tensions exist, and any measure that would have the
effect of limiting the scope for disputation would be advantageous.1457
II. The challenge in building an effective regional maritime security
regime is to recognize the limitations of the UNCLOS, 1982, and to
negotiate a regional consensus on those aspects of the Convention that
are not very clear or where differences of view exist.1458
III. All the States bordering the South China Sea should bring their
maritime claims in conformity with the provisions of the UNCLOS,
1982. That would clarify the areas of overlapping maritime claims and
1455 For details, see Chapter VIII.

1456 Available at:
http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on
%2 0Home%20Affairs/177.pdf (Visited on May 12, 2015).
1458 Ibid.
402
that would in turn set the stage for negotiations between the concerned
claimant States to reach provisional agreements for joint development
agreements and other cooperative agreements in the areas of
overlapping maritime claims. This approach seems to be the best for
dealing with the underlying sovereignty and maritime disputes in the
South China Sea. However, China asserts that the UNCLOS, 1982, does
not restrain or deny a country’s right which is formed in history and
abidingly upheld, and this position threatens the entire legal regime
established under the UNCLOS, 1982. It engages the fundamental
interests in the law of the sea not only of the States bordering the South
China Sea but of all States with an interest in the law of the sea and in
the continuing vitality of the UNCLOS, 1982. Therefore, unless China
brings its maritime claims into conformity with the UNCLOS, 1982, the
dispute would be very difficult to resolve. As an alternative, as the
ASEAN neighbours of China cannot match its political, economic and
military strength, they can invoke the dispute settlement system of the
UNCLOS, 1982, to challenge the legality of China’s maritime
claims.1459
IV. The UN, international organizations, regional organizations and
member States of the UNCLOS, 1982, should persuade the USA to
ratify this Convention. Ratification by the USA (a superpower, as well
as a great maritime power, having the world’s largest Navy) would give
a fresh impetus to this Convention and reaffirm the faith of all countries
in its provisions. The provisions related to deep sea bed mining, to
which the USA is opposed, can be diluted to some extent by annexing a
Protocol to the Convention, thereby allowing the technologically
advanced countries 50 percent share out of the total quantity of
minerals extracted by them from the deep sea bed. The rest 50 percent
share should be surrendered to the UN as the common heritage of
mankind as a whole.1460
V. In the international law arena, the fight against maritime piracy
would be well served by the international community focusing future
efforts on clarifying the law and addressing the loopholes prevalent in
them. While the UNCLOS, 1982, addresses piracy in its broadest terms
and the SUA Convention, 1988, addresses threats to ships more
minutely, they both substantively address similar crimes. Therefore, a
1459 Robert Beckman, “The UN Convention on the Law of the Sea and the Maritime
Disputes in the South China Sea” 107 AJIL 163 (2013).
1460 Author’s own thought.
403
new treaty does not appear necessary. However, interested States which
are parties to these Conventions should come together and develop
consensus on issues like whether these Conventions contain a preferred
definition of the substantive crime of piracy, the definition of the term
private ends, and whether those acting for private ends include
insurgent groups or other State and non State actors. Thus, the
provisions of these Conventions can be interpreted to ensure broader
applicability.1461
VI. The issue of addressing piracy within territorial waters and on
land is more complicated. During the first decade of the twenty first
century (2000-2010), Somalia’s status as a failed State encouraged
pirates to seek safe haven within its territorial waters and on land,
which are outside the reach of the UNCLOS, 1982, as well as the SUA
Convention, 1988. Other States with weak law enforcement agencies
and inadequate laws also face this risk. The best way to close this gap
would be through the development of customary international law that
extends these high seas provisions to the territorial waters in certain
circumstances, including failed States and States unwilling or unable to
take action themselves against piracy.1462
VII. Although significant progress was made a few years ago in
establishing MoU’s among the USA, UK, Kenya, Seychelles and the
European Union on the extradition and prosecution of pirates, the fact
that very few other countries have taken up piracy cases is a cause of
alarming concern. For further progress in this regard, more countries
must take action to follow their respective obligations under the
UNCLOS, 1982, the SUA Convention, 1988, and the relevant UN
Security Council Resolutions.1463 Diplomatic efforts to remind various
countries that piracy is not just a threat to the regions in which the
pirates operate, but to all countries with commercial and government
shipping interests are also essential for creating awareness. For the
economically weak countries, the development of a standing fund
through the UN or the IMO to support global piracy investigations and
prosecutions (similar to the UNODC fund used for Kenya and
Seychelles) would encourage them to prosecute pirates in their own
courts. In addition to it, legal provisions that limit the possibility of

Addressing This Enduring Problem” 36 TMLJ 119 (2011).
1462 Ibid.
1463 Id., at 120.
404
asylum following an acquittal, might entice more countries to prosecute

pirates in their own courts.1464
VIII. Modern pirates make money by selling hijacked vessels back
to their flag State, owners, or even to third parties. To address this
problem, diplomatic efforts by the UN and interested States to
discourage the payment of ransoms to pirates should be accelerated.
Furthermore, States should work together to ensure that they have
effective laws in place that authorize the freezing of money and assets
earned through piracy. If piracy is to be deterred, it will need to be done
both by increasing accountability and decreasing profitability.1465
IX. A better and more uniform method for trying pirates is to create
a venue within the International Criminal Court (ICC), by enlarging the
jurisdiction of the Court. If all State parties to the UNCLOS, 1982,
agree to prosecute pirates at this venue, then it would not matter
whether or not they are State parties to the Rome Statute of the ICC.
They can simply turn over the alleged pirates to the Court, along with
the accompanying evidence, which might set up a special bench in East
Africa or somewhere in the Indian Ocean region to try piracy cases.1466
X. An important aspect of the transition from crisis management at
sea to a sustainable solution on shore is to continue cost effective
suppression at sea while capacity is built within the affected States.1467
Piracy for ransom business model favoured by pirates requires
merchant ships to be anchored within a few miles from the coast for
many months, while pirates negotiate a ransom payment. Accordingly,
using law enforcement agencies to create a more secure environment
where pirates are unable to operate undisturbed so close to the shore for
long periods of time would do a great deal to dismantle the pirate
business model. Another important aspect of a sustainable solution to
piracy is the development of credible alternative means of livelihood
for the pirates so that they are not forced into a life of crime by the
necessity to earn their bread and butter.1468
XI. The Admiralty Bill, 2005, and the Piracy Bill, 2012, should be
reintroduced in the Parliament and passed at the earliest so as to enable
1464 Ibid.
1465 Id., at 121.
1466 Michael J. Kelly, “The Pre History of Piracy as a Crime and its Definitional
Odyssey” 46 CWRJIL 42 (2013).
1468 Ibid.
405
the Courts to effectively try and prosecute pirates in India. The existing
laws to prosecute pirates, i.e., the Admiralty Offences (Colonial) Act,
1849, the Admiralty Jurisdiction (India) Act, 1860 and the Courts
(Colonial) Jurisdiction Act, 1874, are outdated and even derogatory to
the sovereign status of India. The Piracy Bill, 2012, suffered from some
shortcomings.1469 Following suggestions are proffered towards
addressing the enforcement lacunae in the Bill:
(i) Amend Section 14 so as to provide the Indian Navy and the
Indian Coast Guard the necessary legislative support by way of
authorization to stop, board, search and seize vessels and bring them
before a competent court for detention and prosecution of offenders.1470
(ii) Extend these powers to the coastal police force for enforcing the
Act to have effective coastal surveillance in the near shore waters.1471
(iii) Provide more clarity and understanding of the types of offences
that affect the security of India, especially with respect to the use of
territorial waters by foreign ships and the EEZ.1472
Carrying out these and further changes shall lead to effective
implementation of maritime security in India. Points (i) and (ii) will
also help curb maritime terrorism in the country as the Indian Navy and
the Indian Coast Guard, along with the coastal police force will then
have the power to search and seize vessels, without prior approval of
the Government. The Mumbai terror attacks of 26th November 2008,
wherein the terrorists made their way to Mumbai from Karachi
(Pakistan) by transiting through the coastal route are an indicator of the
enormity of threats that need to be dealt with in the maritime
domain.1473
XII. India and Italy should try to arrive at a mutually agreeable
solution to the Enrica Lexie case involving two Italian Marines through
diplomatic means.1474 In spite of the fact that guidelines have been
formulated and notified by the IMO that restrict the use of force in anti
piracy operations, we do not have credible statistics to appreciate how

1470 Available at:
http://armedmaritimesecurity.com/index/article.php?aid=313&pageId=41
1471 Ibid.
1472 Ibid.
1473 Ibid.
406
strictly these guidelines have been followed by commercial vessels.

The Enrica Lexie case is unprecedented and its resolution according to
law entails an arduous journey through the grey areas of international
law. To find a satisfactory solution, we have to see beyond the grey
areas of international law. Where the limits of law are exhausted, it is
for the diplomacy to mend friendly relations so that desired results may
be achieved.1475
XIII. It is imperative that India creates conducive environment for
maritime and coastal security which aims at promoting the civilian-
military aspects of cooperation, information sharing and maritime
surveillance, and to coordinate the participation and actions of all
organizations and individuals of coastal States of India. Although
maritime security falls under the purview of the Union Government,
each State must be required to prepare a maritime security plan taking
into consideration their individual circumstances in a time bound
manner.1476
The law of the sea is a dynamic phenomenon. While the words in
the UNCLOS, 1982, may remain static, their interpretation will change
over time. In some areas, there is lack of guidance in the provisions of
the UNCLOS, 1982, regarding how to do certain things. For example:
Articles 74 to 83 talk about achieving an equitable solution regarding
the delimitation of maritime boundaries, but give no guidance on what
is equitable solution. The UNCLOS, 1982, frequently anticipates where
bilateral treaties or arrangements might be necessary between
neighbouring countries to implement its provisions, but gives very little
or no guidance as to what should be the substantive content of such
bilateral treaties or arrangements. A key area of possible further
research is the analysis of State practice with respect to the law of the
sea. There are many examples where State practice appears to be
divergent from the conventional and traditional law of the sea. For
example: the use of straight baselines by a coastal State to deny rights
of navigation and over flight beyond the limits of the territorial sea to
1475 Manimuthu Gandhi, “The Enrica Lexie Incident: Seeing Beyond the Grey Areas
of International Law” 53 IJIL 26 (2013).
1476 Bimal N. Patel, Aruna Kumar Malik, et.al., “Integrated Maritime Defence
Policy and Strategy of India: Some Critical Ideas for Preparing the Blue-Print for
India” in Bimal N. Patel and Hitesh Thakkar (eds.), Maritime Security and
Piracy (Global Issues, Challenges and Solutions) 316(Eastern Book Company,
Lucknow, 2012).
407
other States. We are yet to see whether this State practice will
subsequently gain legitimacy and acceptance as customary law.1477
In the modern era, maritime piracy has become a serious issue for
the shipping industry, the insurance industry, banks, seafarers and
maritime security forces. It damages the national economies of the
countries whose ships become the victims of piracy because the
damage caused by pirates to ships, cargoes and seafarers would
eventually push up the shipping, insurance and import and export costs.
Therefore, it is a common objective of various international
organizations, regional organizations, national governments and private
maritime security companies to develop an effective system of
combating and controlling piracy. The freedom of navigation can be
restored and maintained only when there is stringent application of
international and national laws dealing with piracy and maritime
security. As is evident from the above discussion, international as well
as national maritime and coastal security agencies have taken the fight
against piracy very seriously.1478 Their keenness to successfully
overcome this problem has led them to formulate some important plans
and policies which are instrumental for shielding shipping enterprises
against the threat of maritime piracy.1479
The author, who began this thesis on a philosophical note by quoting
John Fitzgerald Kennedy, would like to bring it to an end in the same
manner by striking a philosophical chord once again.
“Limitless and immortal, the oceans are the beginning and end of
all things on Earth” (Heinrich Zimmer).1480 “The sea, once it casts its
spell, holds one in its net of wonder forever” (Jacques Yves
Cousteau).1481

1479 Ibid.
1480 Available at: http://thoughtcatalog.com/catie-prendergast/2014/02/41-quotes-
about- the-ocean-that-will-make-you-want-to-live-on-the-beach-forever/ (Visited
on August 10, 2015).
1481 Ibid.
408
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15. Gandhi Manimuthu, “The Enrica Lexie Incident: Seeing Beyond
The Grey Areas of International Law” 53 Indian Journal of
International Law (2013).
16. Gathii James Thuo, “Jurisdiction to Prosecute Non-National
Pirates Captured by Third States under Kenyan and International Law”
31 Loyola of Los Angeles International and Comparative Law Review
(2009).
17. Hallwood Paul and Miceli Thomas J., “The Economics of
International Cooperation in the Apprehension and Prosecution of
Maritime Pirates” 43 Ocean Development and International Law (2012).
18. Huggins Jon and Hartnett Liza Kane, “New Thinking in the Fight
Against Marine Piracy: Financing and Plunder Pre Empting Piracy
Before Prevention Becomes Necessary” 46 Case Western Reserve
Journal of International Law (2013).
19. Jesus Jose Luis, “Protection of Foreign Ships Against Piracy and
Terrorism at Sea: Legal Aspects” 18 International Journal of Marine
and Coastal Law (2003).
20. Kao Shih Ming, Pearre Nathaniel Sifford and Firestone Jeremy,
“Regional Cooperation in the South China Sea: Analysis of Existing
Practices and Prospects” 43 Ocean Development and International Law
(2012).
21. Kelly Michael J., “The Pre History of Piracy as a Crime and Its
Definitional Odyssey” 46 Case Western Reserve Journal of
413
22. Kim Suk Kyoon, “China and Japan Maritime Disputes in the
East China Sea: A Note on Recent Developments” 43 Ocean
Development and International Law (2012).
23. Kraska James, “Indian Ocean Security and the Law of the Sea”
43 Georgetown Journal of International Law (2012).
24. Lobsinger Eric J., “Post 9/11 Security in a Post WWII World:
The Question of Compatibility of Maritime Security Efforts with Trade
Rules and International Law” 32 Tulane Maritime Law Journal (2007).
25. Magnusson Bjarni Mar, “Outer Continental Shelf Boundary
Agreements” 62 International and Comparative Law Quarterly (2013).
Manjiao Chi, “A Note on China’s Legal and Operational Responses
to International Piracy” 44 Ocean Development and International Law
(2013).
27. Misra Ashutosh, “The Sir Creek Boundary Dispute: A Victim of
India Pakistan Linkage Politics” International Boundaries Research
Unit Boundary and Security Bulletin (2000).
28. Nanda Ved P. and Bellish Jonathan, “Moving From Crisis
Management To A Sustainable Solution For Somali Piracy: Selected
Initiatives And The Role Of International Law” 46 Case Western
Reserve Journal of International Law (2013).
29. Paige Tamsin, “Piracy and Universal Jurisdiction” 12 Macquarie
Law Journal (2013).
30. Pattanayak Anindita and Dar Kartikeya, “Addressing Piracy
Through the Indian Legal Framework” 8 NALSAR Student Law
Review (2013).
31. Petrig Anna, “The Use of Force and Firearms by Private
Maritime Security Companies Against Suspected Pirates” 62
International and Comparative Law Quarterly (2013).
32. Pemberton Beck, “Pirate Jurisdiction: Fact, Fiction and
Fragmentation in International Law” One Earth Future Foundation
Working Paper (2011).
33. Rajan Rajashree, “Regional Efforts Against Piracy in South East
Asia and the Indian Subcontinent” International Tribunal For The Law
of The Sea (2011).
34. Randall Kenneth C., “Universal Jurisdiction Under International
Law” 66 Texas Law Review (1988).
35. Roach J. Ashley, “Global Conventions on Maritime Crimes
Involving Piratical Acts” 46 Case Western Reserve Journal of
414
36. Roach J. Ashley, “Maritime Boundary Delimitation: United

States Practice” 44 Ocean Development and International Law (2013).
37. Sandra L. Hodgkinson, Gregory P. Noone, Fleming Christian P.,
Shapiro Jonathan, Kelly Kevin M., McTighe Kathleen P., Fluhr Philip
N., Kotval Raghav, Van Horn Thomas H., Arcati Michael, Han John S.
and Divins Byron, “Piracy: New Efforts in Addressing This Enduring
Problem” 36 Tulane Maritime Law Journal (2011).
38. Scharf Michael P. and Fischer Thomas C., “Universal
Jurisdiction: Myths, Realities and Prospects” 35 New England Law
Review (2001).
39. Schneider Patricia and Winkler Matthias, “The Robin Hood
Narrative: A Discussion of Empirical and Ethical Legitimizations of
Somali Pirates” 44 Ocean Development and International Law (2013).
40. Singh Teshu, “China and Japan: Tensions in East China Sea” 198
Institute of Peace and Conflict Studies Issue Brief (2012).
41. Srilatha V., “India’s Coastal Security” 30 Indian Ocean Digest
(2012).
42. Strapatsas Nicolaos, “Universal Jurisdiction and the International
Criminal Court” 29 Manitoba Law Journal (2002).
43. Williamson Hugh R., “New Thinking in the Fight Against
Marine Piracy: Financing and Plunder Pre Empting Piracy Before
Prevention Becomes Necessary” 46 Case Western Reserve Journal of
44. Woodruff James J., “Merchants, Traders and Pirates: The Birth
of the Admiralty Clause” 26 Tulane Maritime Law Journal (2001).
CONVENTIONS AND COVENANTS

1. European Convention for the Protection of Human Rights and
Fundamental Freedoms, 1950.
2. Geneva Convention Relating to the Status of Refugees, 1951.
3. Geneva Convention on the Territorial Sea and Contiguous Zone,
1958.
4. Geneva Convention on the High Seas, 1958.
5. Geneva Convention on Fishing and Conservation of Living
Resources, 1958.
6. Geneva Convention on the Continental Shelf, 1958.
7. Convention on the Transit Trade of Land Locked States, 1965.
415
8. Convention on Facilitation of International Maritime Traffic,

1965.
9. International Covenant on Civil and Political Rights, 1966.
10. International Covenant on Economic, Social and Cultural Rights,
1966.
11. Protocol Relating to the Status of Refugees, 1967.
12. Convention relating to Intervention on the High Seas in cases of
Oil Pollution Casualties, 1969.
13. Convention on Civil Liability for Oil Pollution Damage, 1969.
14. Convention for the Establishment of a Fund for Compensation
15. Convention relating to Civil Liability in the Field of Maritime
Carriage of Nuclear Material, 1971.
16. Convention on the International Regulations for Preventing
Collisions at Sea, 1972.
17. Convention relating to the Carriage of Passengers and their
Luggage by Sea, 1974.
18. Convention for the Safety of Life at Sea, 1974.
19. Convention for the Safety of Fishing Vessels, 1977.
20. Convention on Standards of Training, Certification and Watch
Keeping for Seafarers, 1978.
21. Convention on Maritime Search and Rescue, 1979.
22. Convention Against the Taking of Hostages, 1979.
23. UN Convention on the Law of the Sea, 1982.
24. Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment, 1984.
25. Convention on Conditions for Registration of Ships, 1986.
26. Convention on the Suppression of Unlawful Acts against the
Safety of Maritime Navigation, 1988.
27. Protocol for the Suppression of Unlawful Acts Against the
Safety of Fixed Platforms Located on the Continental Shelf, 1988.
28. Convention on the Arrest of Ships, 1999.
29.UN Convention Against Transnational Organized Crime, 2000.
30. Convention for the Control of Harmful Anti Fouling Systems on
Ships, 2001.
31. Protocol to the SUA Convention, 2005.
32. Maritime Labour Convention, 2006.
416
DICTIONARIES
1. Black’s Law Dictionary (2009).
2. P. Ramanatha Aiyar’s Law Lexicon (2008).
3. Wharton’s Law Lexicon (2011).
JOURNALS AND MAGAZINES

1. All India Reporter.
2. American Journal of International Law.
3. Arizona Journal of International and Comparative Law.
4. Australian International Law Journal.
5. Berkeley Journal of International Law.
6. Boston University International Law Journal.
7. Brooklyn Journal of International Law.
8. California International Law Journal.
9. California Law Review.
10. Cambridge Law Journal.
11. Case Western Reserve Journal of International Law.
12. Chicago Journal of International Law.
13. Chinese Journal of International Law.
14. Connecticut Journal of International Law.
15. Cornell International Law Journal.
16. Denver Journal of International Law and Policy.
17. Duke Journal of Comparative and International Law.
18. Edinburgh Law Review.
19. European Journal of International Law.
20. Florida Journal of International Law.
21. Fordham International Law Journal.
22. Frontline.
23. George Washington International Law Review.
24. Georgetown Journal of International Law.
25. Harvard International Law Journal.
26. Indian Journal of International Law.
27. Indian Ocean Digest.
28. International and Comparative Law Quarterly.
29. International Journal of Marine and Coastal Law.
30. Journal of International Law and International Relations.
31. Korean Journal of Defense Analysis.
32. Kyiv Student Journal of International Law.
417
33. Loyola of Los Angeles International and Comparative Law

Review.
34. Macquarie Law Journal.
35. Manitoba Law Journal.
36. Melbourne Journal of International Law.
37. Minnesota Journal of International Law.
38. NALSAR Student Law Review.
39. National Academy of Legal Studies and Research Student Law
Review.
40. New England Law Review.
41. New York University Journal of International Law and Politics.
42. North Carolina Journal of International Law and Commercial
Regulation.
43. Ocean Development and International Law.
44. Oxford University Commonwealth Law Journal.
45. Panjab University Law Review.
46. Shree Ram’s The Law: A Monthly Magazine cum Journal on
Law and Judiciary.
47. Stanford Journal of International Law.
48. Stanford Law Review.
49. Suffolk Transnational Law Review.
50. Supreme Court Cases.
51. Texas International Law Journal.
52. Texas Law Review.
53. Tulane Journal of International and Comparative Law.
54. Tulane Law Review.
55. Tulane Maritime Law Journal.
56. Utrecht Journal of International and European Law.
57. Vanderbilt Journal of Transnational Law.
58. Virginia Journal of International Law.
59. Washington International Law Journal.
60. Yale Journal of International Law.
NEWSPAPERS
1. The Daily Mirror
2. The Hindu.
3. The Hindustan Times.
4. The Independent.
418
5. The Indian Express.

6. The Mumbai Mirror
7. The Telegraph.
8. The Times of India.
9. The Tribune.
REPORTS
1. Law Commission of India, 151st Report on Admiralty Jurisdiction
(August 1994).
2. Law Commission of India, 248th (Interim) Report on Obsolete
Laws Warranting Immediate Repeal (September 2014).
3. ICC International Maritime Bureau, Piracy and Armed Robbery
Against Ships: Report for the Period of 1st January 2014 to 31st
December 2014 (March 2015).
BILLS AND STATUTES

1. Act to Protect the Commerce of the United States and Punish the
Crime of Piracy, 1819.
2. Admiralty Bill, 2005.
3. Admiralty Courts Act, 1861.
4. Admiralty Jurisdiction (India) Act, 1860.
5. Admiralty Offences (Colonial) Act, 1849.
6. Carriage of Goods by Sea Act, 1925.
7. Colonial Courts of Admiralty (India) Act, 1891.
8. Constitution of India, 1950.
9. Criminal Procedure Code, 1973.
10. Federal Crimes Act (USA), 1790.
11. Indian Penal Code, 1860.
12. Kenya Merchant Shipping Act, 2009.
13. Kenya Penal Code, 1930.
14. Major Port Trusts Act, 1963.
15. Maritime Zones of India Act, 1981.
16. Merchant Shipping Act, 1958.
17. Multimodal Transportation of Goods Act, 1993.
18. Navy Act, 1957.
19. Piracy Bill, 2012.
20. Seychelles Penal Code, 1955.
419
21. Suppression of Unlawful Acts Against Safety of Maritime

Navigation and Fixed Platforms on Continental Shelf Act, 2002.
22. Territorial Waters, Continental Shelf, Exclusive Economic Zone
and Other Maritime Zones Act, 1976.
23. United States Code.
24. United States Constitution, 1787.
WEBLIOGRAPHY
1. www.academia.edu
2. www.admiraltylawguide.com
3. www.admiraltypractice.com
4. www.armedmaritimesecurity.com
5. www.articles.economictimes.indiatimes.com
6. www.assembly.nl.ca
7. www.asil.org
8. www.brainyquote.com
9. www.britannica.com
10. www.bruschambers.com
11. www.caaa.in
12. www.casebriefs.com
13. www.caselaw.findlaw.com
14. www.cbi.nic.in
15. www.ciesjsia.blogspot.in
16. www.cluster-maritime.fr
17. www.cns.miis.edu
18. www.cochinport.com
19. www.combinedmaritimeforces.com
20. www.commonlii.org
21. www.consilium.europa.eu
22. www.constitutionus.com
23. www.daccess-dds-ny.un.org
24. www.dahd.nic.in
25. www.dgshipping.gov.in
26. www.dur.ac.uk
27. www.edition.cnn.com
28. www.eia.gov
29. www.eji.org
30. www.ejiltalk.org
420
31. www.eldis.org
32. www.en.ria.ru
33. www.english.islammessage.com
34. www.eoearth.org
35. www.era.lib.ed.ac.uk
36. www.eunavfor.eu
37. www.faolex.fao.org
38. www.forbes.com
39. www.gcnoaa.gov
40. www.gfptt.org
41. www.gktoday.in
42. www.goodreads.com
43. www.gov.uk
44. www.greenpeace.org
45. www.ibtimes.co.uk
46. www.icc-ccs.org
47. www.icj-cij.org
48. www.icrc.org
49. www.imli.org
50. www.imo.org
51. www.in.news.yahoo.com
52. www.independent.co.uk
53. www.india.gov.in
54. www.indiancoastguard.nic.in
55. www.indianexpress.com
56. www.indiankanoon.com
57. www.indiannavy.nic.in
58. www.inforise.org
59. www.ions.gov.in
60. www.ipcs.org
61. www.ir.lawnet.fordham.edu
62. www.itar-tass.com
63. www.itlos.org
64. www.law.case.edu
65. www.law.justia.com
66. www.lawcommissionofindia.nic.in
67. www.lawzonline.com
68. www.legalservicesindia.com
421
69. www.legal.un.org
70. www.lettereold.humnet.unipi.it
71. www.litigation-essentials.lexisnexis.com
72. www.mc.nato.int
73. www.mirror.co.uk
74. www.mofa.go.jp
75. www.mumbaimirror.com
76. www.nausena-bharti.nic.in
77. www.navaltoday.com
78. www.ndtv.com
79. www.news.usni.org
80. www.nia.gov.in
81. www.nsc.anu.edu.au
82. www.oceanlaw.org
83. www.oceansbeyondpiracy.com
84. www.ozcase.library.qut.edu.au
85. www.philstar.com
86. www.piracy-law.com
87. www.piracylaw.files.wordpress.com
88. www.prsindia.org
89. www.psalegal.com
90. www.pustakahpi.kemlu.go.id
91. www.realpolitik.in
92. www.recaap.org
93. www.researchgate.net
94. www.reuters.com
95. www.rt.com
96. www.rudraksha-ratna.com
97. www.safety4sea.com
98. www.seasky.org
99. www.sedac.ciesin.columbia.edu
100. www.southchinasea.org
101. www.state.gov
102. www.strategic-culture.org
103. www.supremecourtofindia.nic.in
104. www.supreme.justia.com
105. www.telegraph.co.uk
106. www.thecolorsofindia.com
422
107. www.thediplomat.com
108. www.thefreedictionary.com
109. www.national.ae
110. www.thoughtcatalog.com
111. www.timesofindia.indiatimes.com
112. www.un.org
113. www.unhcr.org
114. www.unicri.it
115. www.uniset.ca
116. www.vakilno1.com
117. www.vliz.be
118. www.wikipedia.org
119. www.wipo.int
120. www.worldlii.org
121. www.wrmin.nic.in
122. www.youtube.com
YEARBOOKS
1. African Yearbook of International Law.
2. Australian yearbook of International Law.
3. Baltic Yearbook of International Law.
4. British Yearbook of International Law.
5. Canadian Yearbook of International Law.
6. Chinese (Taiwan) Yearbook of International Law and Affairs.
7. German Yearbook of International Law.
8. Hague Yearbook of International Law.
9. Indian Yearbook of International Law and Policy.
10. Irish Yearbook of International Law.
11. Italian Yearbook of International Law.
12. Japanese Yearbook of International Law.
13. Manorama Yearbook.
14. Netherlands Yearbook of International Law.
15. Palestine Yearbook of International Law.
16. South African Yearbook of International Law.
423
ABBREVIATIONS
AD Anno Domini
AIR All India Reporter
AIS Automatic Identification System
AJIL American Journal of International Law
AK Avtomat Kalashnikova
AMISOM African Union Mission in Somalia
ASEAN Association of South East Asian Nations
AU African Union
BC Before Christ
BMP Best Management Practices
BNS Brazilian Naval Ship
CAT Convention Against Torture and Other Cruel, Inhuman
and Degrading Treatment or Punishment
CC Coastal Command
CCS Cabinet Committee for Security
CGPCS Contact Group on Piracy off the Coast of Somalia
CGV Coast Guard Vessel
CMF Combined Maritime Forces
CPP Counter Piracy Programme
CPPS Permanent Commission for the South Pacific
CrPC Code of Criminal Procedure
CTF Combined Task Force
CWRJIL Case Western Reserve Journal of International Law
DC District of Columbia
DC Cir District of Columbia Circuit
DG Director General
DGS Director General of Shipping
DSBMR Deep Sea Bed Mining Regime
ECCAS Economic Community of Central African States
ECHR European Convention for the Protection of Human
Rights and Fundamental Freedoms
ECOWAS Economic Community of West African States
EEZ Exclusive Economic Zone
EIA Energy Information Administration
EU European Union
EU NAVFOR European Union Naval Force
FILJ Fordham International Law Journal
FIR First Information Report

GDP Gross Domestic Product
GGC Gulf of Guinea Commission
GJIL Georgetown Journal of International Law
IBSAMAR India, Brazil and South Africa Maritime Exercise
ICC International Chamber of Commerce
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and
Cultural Rights
ICJ International Court of Justice
ICRC International Committee of the Red Cross
IJIL Indian Journal of International Law
ILO International Labour Organization
IMA Indian Maritime Administration
IMB International Maritime Bureau
IMO International Maritime Organization
INS Indian Naval Ship
INTERPOL International Criminal Police Organization
IOD Indian Ocean Digest
IONS Indian Ocean Naval Symposium
IOZP Indian Ocean as a Zone of Peace
IPC Indian Penal Code
IRTC Internationally Recommended Transit Corridor
ISI Inter Services Intelligence
ITLOS International Tribunal for Law of the Sea
KJDA Korean Journal of Defense Analysis
LLAICLR Loyola of Los Angeles International and Comparative
Law Review
LLDC Landlocked Developing Countries
LRIT Long Range Identification and Tracking System
MAF Million Acre Feet
MAS Malaysia Airlines
MDA Maritime Domain Awareness
MLJ Manitoba Law Journal
MoU Memorandum of Understanding
MPTI Marine Police Training Institute
MS Motor Ship
MSAB Maritime Security Advisory Board
MSO Maritime Security Operations
MT Motor Tanker
MV Motor Vessel
NALSAR SLR National Academy of Legal Studies and Research
Student Law Review
426
NATO North Atlantic Treaty Organization

NCSMCS National Committee on Strengthening Maritime and
Coastal Security
NELR New England Law Review
NGO Non Governmental Organization
NIA National Investigating Agency
NSG National Security Guards
ODIL Ocean Development and International Law
OECD Organization for Economic Cooperation and
Development
PC Privy Council
PCASP Privately Contracted Armed Security Personnel
PCIJ Permanent Court of International Justice
PIC Permanent Indus Commission
PLF Palestine Liberation Front
PLO Palestine Liberation Organization
PMC Private Military Contractors
PMPF Puntland Maritime Police Force
PMSC Private Maritime Security Company
PRC Piracy Reporting Centre
QB Queen’s Bench
RADAR Radio Detection and Ranging
RAW Research and Analysis Wing
ReCAAP Regional Co operative Agreement Against Piracy and
Armed Robbery in Asia
RPG Rocket Propelled Grenade
SAR Singapore Assault Rifle
SC Supreme Court
SCC Supreme Court Cases
SCS South China Sea
SEZ Special Economic Zone
SOFA Status of Forces Agreement
SOLAS Safety of Life at Sea
SONAR Sound Navigation and Ranging
SOP Standard Operating Procedures
STCW Standards of Training, Certification and Watch Keeping
SUA Suppression of Unlawful Activities
TFG Transitional Federal Government
TLR Texas Law Review
TMLJ Tulane Maritime Law Journal
UK United Kingdom
UKMTO United Kingdom Maritime Trade Operations
UN United Nations
UNCLOS United Nations Convention on Law of the Sea
427
UNDP United Nations Development Programme

UNITAF Unified Task Force
UNODC United Nations Office on Drugs and Crime
UNOSOM United Nations Operation in Somalia
UNPOS United Nations Political Office for Somalia
UNSC United Nations Security Council
US United States
USA United States of America
USC United States Code
USS United States Ship
USSR United Soviet Socialist Republic
WFP World Food Programme
428
TABLE OF CASES
1. The Arctic Sunrise Case (Kingdom of the Netherlands vs.

Russian Federation) (ITLOS, 2013) 153, 230, 231
2. Camouco Case (Panama vs. France) (ITLOS, 2000) 153
3. The Caribbean Case (Nicaragua vs. Honduras) (ICJ
Reports, 2007) 110, 111
4. Case Concerning the Continental Shelf of Libyan
Arab Jamhuriya/Malta (ICJ Reports, 1985) 56, 57, 121, 127
5. Case Concerning Land Reclamation by Singapore in and
around the Straits of Johor (Malaysia vs. Singapore) 153 (ITLOS,
2003)
6. Cetacean Research vs. Sea Shepherd (708 F.3d
1099, 1102) (9th Cir. 2013) 228
7. The Corfu Channel Case (United Kingdom of Great
Britain and Northern Ireland vs. People’s 106 Republic of
Albania) (ICJ Reports, 1949)
8. Currie vs. M’Knight (1896) 4 SLT 161 45, 46
9. Dispute Concerning the Delimitation of the Boundary
between Bangladesh and Myanmar in the 153 Bay of Bengal
(Bangladesh vs. Myanmar) (ITLOS, 2002)
10. The Enrica Lexie Incident (Italy vs. India) (ITLOS, 2015) 368
11. Equilease Corporation vs. MV Sampson (793 F.2d 598) 195, 196
12. Ex Parte Michael [(1881) 7 QB 658] 189
13. Grand Prince Case (Belize vs. France) (ITLOS, 2001) 153
14. Islamic Republic of Iran vs. MV Mehrab
and Others (AIR 2002 Bombay 517)
195
15. Jayaswal Shipping Company vs. SS Leelavati (AIR
1954 Calcutta 415) 188, 189
16. Juno Trader Case (Saint Vincent and the Grenadines vs.
Guinea Bissau) (ITLOS, 2004) 153
17. Kamalakar Mahadev Bhagat vs. Scindia Steam
Co. Navigation Ltd. (AIR 1961 Bombay 186) 189, 190
18. Kashi Bai vs. SS Navigation (AIR 1961
Bombay 200) 190
19. Liverpool and London Steamship Protection and Indemnity
Association Ltd. vs. MV Sea Success 195, 196 (AIR 2003
SC 218)
20. Maritime Delimitation and Territorial Questions between
Qatar and Bahrain (Qatar vs. Bahrain) 110 (ICJ Reports,
2001)
21. Massimilano Latorre vs. Union of India

[(2012) 252 KLR 794] 356
22. Monte Confurco Case (Seychelles vs. France) (ITLOS, 2000) 153
23. The MV Alondra Rainbow Case
(AIR 2005 Bombay)
350
24. MV Elizabeth vs. Harwan Investment and Trading Co.
Pvt. Ltd. (AIR 1993 SC 1014) 191, 198, 200, 202
25. The MV Saiga Case (Saint Vincent and
the Grenadines vs. Guinea) (ITLOS, 1997) 153,
154
26. National Co. Ltd. vs. Asia Mariner [(1968) 72
CWN 635] 189
27. North Sea Continental Shelf Case (Germany vs.
Denmark and the Netherlands) (ICJ Reports, 1969) 107, 118
28. The Paquete Habana Case
[(1899) 175 US Reports 677]
46, 47
29. R vs. Anderson [1 Cox’s Criminal Cases 198 (1868)] 286
30. Rangta Sons Pvt. Ltd. and Another vs. SS Edison Mariner and
Another (1961) 66 CWN 1083 190
31. Re Piracy Jure Gentium
(1934) AC 586 12, 220
32. Reena Padhi vs. Jagdhir
(AIR 1982 Orissa 57)
190
33. Republic of Italy and Others vs. Union
of India and Others (2013) 4 SCC 721 360
34. The Republic of Kenya vs. Aid Mohamed Ahmed and
Seven Others (Criminal Case No. 3468 of 2008) 305, 306
35. The Republic of Kenya vs. Hassan Muhamud Ahmed and
Nine Others (Criminal Case No. 434 of 2006) 304, 305
36. The Republic of Kenya vs. Jama Abdikadir Farah and
Six Others (Criminal Case No. 1695 of 2009) 306
37. The Republic of Kenya vs. Mohamud Mohamed Hashi and
Eight Others (Criminal Case No. 840 of 2009) 306, 307
38. The Republic of Seychelles vs. Abdi Ali and
Ten Others (Supreme Court of Seychelles, 2010) 297
39. The Republic of Seychelles vs. Farad Ahmed Jama and
Fourteen Others (Supreme Court of Seychelles, 2012) 300, 301
40. The Republic of Seychelles vs. Liban Mohamed Dahir and
Twelve Others (Supreme Court of Seychelles, 2012) 299, 300
41. The Republic of Seychelles vs. Mohamed Ahmed Dahir
and Ten Others (Supreme Court of Seychelles, 2009) 296
42. The Republic of Seychelles vs. Mohamed Ahmed Ise and
Four Others (Supreme Court of Seychelles, 2010) 299
430
43. The Republic of Seychelles vs. Mohamed Aweys Sayid and

Eight Others (Supreme Court of Seychelles, 2010) 297, 298
44. The Republic of Seychelles vs. Nur Mohamed Aden and
Nine Others (Supreme Court of Seychelles, 2010) 298
45. Rex vs. Joseph Dawson
[(1696) 13 How. St. Tr. 451, 455] 288, 289
46. Sahida Ismail vs. Pekto R. Salvej Kor and Others (AIR 1973
Bombay 18) 190
47. The Schooner Exchange vs. M’Faddon and Others [USSC
Reports (1812) 7 Cranch 114] 193
48. The Scotia Case [(1871) 81 US Reports 170] 48
49. Soering vs. United Kingdom [161 Eur.
Ct. H.R. (Ser. A) at 35] 320
50. Southern Bluefin Tuna Cases (New Zealand vs.
Japan and Australia vs. Japan) (ITLOS, 1999) 153
51. The SS Lotus Case (France vs. Turkey)
[1927 PCIJ (Ser. A) No. 10] 47, 48, 289,
290
52. Tunisia vs. Malta (ICJ Reports, 1985) 126
53. United States vs. Ali
[718 F.3d 929, 938, 940 (DC Cir. 2013)] 229
54. United States vs. The Ambrose Light [25
Fed. Rep. 408 (1885)] 225, 226
55. United States vs. Dire
[680 F. 3d. 446, 447, 469 (4th Cir. 2012)] 228
56. United States vs. Hasan
[747 F. Supp. 2d. 599, 640, 641 (ED Va. 2010] 226, 227, 312
57. United States vs. Muse
[US DC for Southern District of New York (2011)]
311
58. United States vs. Neil
[312 F. 3d. 419, 423 (9th Cir. 2002)] 286
59. United States vs. Pirates
[18 US (5 Wheat) 196 (1820)] 308, 309
60. United States vs. Said
[757 F. Supp. 2d. 554, 556 (ED Va. 2010)] 226
61. United States vs. Smith [18 US 153 (1820)] 225, 226
62. United States vs. Shi
[2008 AMC 1077 (9th Cir. 2008)] 309, 310
63. Videsh Sanchar Nigam Ltd. vs. MV Kapitan Kud and
Others (AIR 1996 SC 516) 194
64. World Tanker Carrier Corporation vs. SNP Shipping Services
Pvt. Ltd. and Others (AIR 1998 SC 2230) 194, 195
431

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LAW OF SEA AND PIRACY:

‫ﻧﺎﺷﺮ‪ :‬ﭘﮋوﻫﻨﺪﮔﺎن راه داﻧﺶ‬

‫ﺣﻖ ﭼﺎپ و ﻧﺸﺮ ﻣﺤﻔﻮظ اﺳﺖ‪.‬‬

I dedicate this research work to my parents,

“If you’re lucky enough to still have

“No matter how far we come, our parents are

“A teacher effects eternity. You can never tell

CHAPTER – I: INTRODUCTION ...........................................................19

CHAPTER - II: LAW OF SEA: HISTORICAL PERSPECTIVE.......... 49

CHAPTER - III: PIRACY AT SEA: HISTORICAL PERSPECTIVE... 75

CHAPTER – IV: LAW OF SEA: INTERNATIONAL SCENARIO ..... 119

CHAPTER  V: LAW OF SEA: INDIAN SCENARIO ......................... 177

CHAPTER – VI: PIRACY AT SEA (ANTI PIRACY LAW AND

CHAPTER – VII: PIRACY AT SEA (LEGAL ISSUES AND

CHAPTER – VIII: PIRACY AT SEA: INDIAN SCENARIO ............... 341

CHAPTER - IX: CONCLUSION AND SUGGESTIONS ..............385

firmly stood by me in good as well as bad times. Their friendship is one

(Assistant Registrar) Mrs. Nidhi Malhotra (Computer Lab Attendant),

1.1 THE ORIGIN OF CONTINENTS AND OCEANS

Similarly, Panthalassa was a gigantic Ocean which contained all of our

species. However, much of the oceans’ depths remain unexplored till

1.2 RELIGIOUS SIGNIFICANCE OF THE SEA

I. Lakshmi, the Goddess of Fortune and Wealth, who accepted Lord

1.3 SEA AS A RESERVOIR OF MINERALS

shaped mineral rich Manganese nodules.16 These nodules contain the

1.4 SEA AS A FACILITATOR OF TRADE AND TOURISM

mode of transportation, taking into consideration per ton of goods

25 Available at: http://www.cluster-maritime.fr/article.php?lang=uk&id=2 (Visited on

goods and services generate a lot of income to the host economy.

1.5 PIRACY AT SEA

31 Available at: http://wikipedia.org/PiracyintheModernAge (Visited on December

II. Any act of voluntary participation in the operation of a ship or of an

1.6 RESEARCH HYPOTHESES

1.7 RESEARCH METHODOLOGY

35 Article 101 of the UNCLOS, 1982. Ibid.

1.8 RESEARCH OBJECTIVES

1.9 REVIEW OF LITERATURE

provisions of international law which deal with this problem. He also

aspects of law of the sea. He begins with an introduction of the four

Convention pertaining to the rights of land locked States, international

authors have addressed the key cornerstones of the international legal

51 Sandra L. Hodgkinson, Gregory P. Noone, et.al., “Piracy: New Efforts in

maritime law is distinct and requires a specific solution, which has to

56 V. Subramanian Kumar and Ranjeet Sangle, “Shipping/Maritime Law in India”.

V. Srilatha, in her article titled India’s Coastal Security, highlights

59 V. Srilatha, “India’s Coastal Security” 30 IOD (2012).

they advocate extension of the SUA Convention, 1988, to maritime

61 Paul Hallwood and Thomas J. Miceli, “The Economics of International

complement each other in the context of piracy and armed robbery at

67 J. Ashley Roach, “Global Conventions on Maritime Crimes Involving Piratical

stage so as to allow for the implementation of a pre emptive strategy

70 Hugh R. Williamson, “New Thinking in the Fight Against Marine Piracy:

All the four Geneva Conventions of 1958 dealing with various

74 Available at: http://www.gc.noaa.gov/documents/8_1_1958_high_seas.pdf (Visited

engaged in the exploration of offshore oil and gas.81 The Protocol of

1.10 PLAN OF STUDY

81 Available at: http://www.un.org/en/sc/ctc/docs/conventions/Conv8.pdf (Visited on

Indian Judiciary in interpreting various maritime laws. Important

chapter further proceeds to make a detailed analysis of India’s maritime

2.1 GENERAL INTRODUCTION

83 Available at: http://www.seasky.org/quotes/sea-quotes-oceans.html (Visited on

According to Ulpian, “the sea was open to everybody by nature”.86

2.2 EARLY HISTORY