The Maritime Safety Committee MSC/85 of December, 2008 of International Maritime Organisation had on its agenda piracy at sea, being the priority item. It was IMO, which drew the attention of U N Security Council by its assembly resolution 2005-A 979 (24). Subsequently UN Security Council passed a resolution 1816(2008), the mandate of which is expiring in December, 2008.
Recently a ministerial conference was held in Nairobi to also address the issue, as piracy is virtually uncontrollable in the Gulf of Aden. Even now passenger vessels are being targeted. With piracy rife off the coast of Gulf of Aden shipowners are turning to security and private military contractors to protect their crews and lower the cost of premium paid to their insurance underwriters.
Due to partial failure of Navy's to protect merchant ships in the Gulf of Aden, many private US based contractors eg Black-water, Harts etc are looking at raising a flotilla of armed anti-piracy vessels for hire and deployment in the troubled waters of Gulf of Aden. Thus, now the role of protecting commercial vessels may be shifted from Navy to private agencies. This is a unique development which may have merits and demerits at large.
It is not only the navies failure but shipping security regulations in force. Since the last 5 years they are white elephant failing the test posed by Somalian piracy. ISPS was enforced mandatory by IMO on all states under solas chapter XI in 2004, July but it has only taxed the ship-owners and brought more fatigue to unarmed ships security officers and it is now being widely contested that being an ISPS compliant ship does not mean that it is secure. With around 120 vessels moving towards Suez or the Indian Ocean daily it is good business for private security contractors. The ship-owners may be too pleased to avail the services of private contractors and under-writers will also be satisfied to shift the cover from Hull policy to war risk policy.
A very serious controversy has been raised in European parliament, as EU Parliament desires that piracy should be defined as criminal act, rather than an act of war. Such a re-definition will enable navies to arrest the pirates and bring them to justice, as believed by the author of new EU resolution.
The resolution passed by the EU parliament Transport Committee, regrets that U N Security Council resolution problematically treated piracy scourge of Somalia as an act of war. The committee urges that piracy be treated as criminal act under International Law. EU feels that if pirates are defined as criminals, it is easier to bring them to justice as piracy being an "Act of War" it is more difficult to go for legal arrangement.
The pirates lawyers, mostly based at London, are arguing the act by Navies was illegal under International Law. Lawyers are seeking protection under Geneva Convention as piracy is defined as an act of war. It is said that London lawyers will negotiate the release of ship and hostages and according to newspapers report the ransom is also paid at London.
While the talks for new UN resolution continue in co-ordination with IMO and it appears that new resolution may establish the right of Navies to arrest pirates and hand them over for prosecution, either in the flag state of the ship ;taking action or a third country in the Gulf of Aden region. It is expected that new UN resolution will explicitly define what Naval authorities can or cannot do.
The maritime lawyers are debating that in terms of insurance, piracy is some time covered as war risk, sometimes as Hull risk. The underwriters are seeking to move cover towards war risk policies, so that geographical restrictions can be imposed, which is more difficult for Hull & Machinery cover under institute Time clauses. Definitions are further complicated by the continuing debate on the right within or outside territorial waters.
According to certain European laws, piracy is defined as armed robbery within territorial waters and different laws apply. There is no agreement yet what constitutes territorial waters, with some in Government and academia argue in favour of broader definition based on exclusive economic zone as per UNCOLAS.
The International Chamber of Shipping is pleading that EU and UN action should help to put down a "firm legal basis" for action against pirates. It is also debated that if pirates have links to terrorists, the ransom payments being made at London will become illegal under UK Law. What a paradox, we are being advised by all to behave whilst London is said to be hub of all negotiations for ransom, and its payment, and London Lawyers are charging hefty sums from shipowners and their underwriters for release of ships and hostages.
We have to keep an eye on new UN resolution, if the new definition covers economic zone, our maritime security agencies will have to keep surveillance upto 200 miles from the coast, ie to cover upto the extent of our 5th province, thus needs for more platforms.
Pak Navy and MSA must gear up themselves to comply with the new expected UN resolution. It is in our interest that UN may enhance jurisdiction upto exclusive economic zone. Indian Navy is active from Gulf of Oman to Gulf of Aden and they are projecting their presence courtesy world media.
(The writer is Governor World Maritime University Malmao (Sweden), Member (IMO Secretary General's Panel of Experts, London), ex-Additional Secretary & Director General Ports & Shipping, ex-Chairman, Gwadar Port)