Regional Cooperation in the Bay of Bengal: Non-Conventional Threats-Maritime Dimension

Prof. K.R. Singh, JNU

 

Abstract

By the turn of the century new types of threats, posed mostly by non-state actors, are raising their head. Many of them are specific to the sea. These maritime crimes of international nature range from illegal fishing, pollution, acts of terrorism to maritime insurgency operations. Since the law of the sea is still inadequate to deal with them, regional cooperation is the obvious answer to this new challenge. The Bay of Bengal and its adjacent waters form an ideal maritime zone to evolve such cooperative mechanisms.

Howsoever repugnant use of force might seem in a civil society, one cannot wish it away in the context of maintenance of peace and security. Threats are perceived, sometimes even invented, and their counter-measures are evolved. By the turn of the century while the end of the Cold War has brought about a basic restructuring of threats at the global level, especially in the context of employment of nuclear weapons, new types of threats, posed mostly by non-state actors, are raising their head. Simultaneously, under the terms of UNCLOS-III (1982), maritime states, even small ones, have acquired large adjoining maritime areas as zones of their exclusive jurisdiction and use. Consequently, these areas have also become zones of their responsibility; a factor often ignored by them. In that context, maritime security in the 21st century has acquired an unique status and needs a more in-depth analysis.

Non-Conventional Threats: Maritime Dimension

Increasingly important, especially in the context of the developing countries of the South, are the non-conventional threats of various types. These threats refer to various types of low-intensity conflicts related to the sea. Good order at sea encourages the free flow of sea-borne traffic. It ensures that nations can pursue their maritime interests and develop their maritime resources in an ecologically sustainable and peaceful manner in accordance with international law and practice. Third World states individually are not always capable of ensuring that environment. Hence, some mutually acceptable framework of regional maritime cooperation would greatly facilitate the attainment of that objective.

For want of a better term, these threats of low-intensity conflict can be termed as maritime crimes of international nature. They form a wide spectrum ranging from common theft, illegal fishing, intentional pollution, armed robbery on sea amounting to piracy, illegal traffic in arms, drugs and humans, hijacking, sabotage, terrorism, mercenary activities and maritime insurgency operations. Very often, these criminal offences, though connected to the sea or the ship (or fixed structure on the sea-bed), have links with the shore. Thus, besides cooperation, interaction between enforcement agencies on sea as well as on land becomes essential to curb these crimes.

Maritime low intensity conflicts can be divided into four broad categories. The first is the exploitation of national resources by unauthorised persons. Illegal fishery is the most common illustration. The second is the attempt to intentionally pollute the sea thereby leading to ecological damage. Ecological disaster due to accident, though causing damage, is not intentional and needs to be dealt with separately. While disaster management needs to be strengthened, accidents or natural calamities cannot be treated as 'threat to security'. The third category is the threat to life and property on board ship (or platform or structure in the continental shelf or near the shore). This category has a wide spectrum ranging from ordinary theft to armed robbery. All of them are now sought to be equated with piracy.

The fourth category is threat to national peace and security. This would include illegal traffic in arms, prohibited drugs as well as human beings. Sometimes hijacking and hostage taking are also included in this category. This category is often linked to terrorism or even insurgency. India, the Maldives, Myanmar and Sri Lanka are special targets in the Bay of Bengal region. Increasingly some states of Southeast Asia are also experiencing this threat. In this context, it needs to be underlined that attempts are often made to give these acts, which are essentially criminal in nature, a political cover to provide them some legitimacy. Despite the attempt to cloak these acts in political legitimacy, they remain, under existing law, criminal acts.

Under UNCLOS-III, coastal states have been given ample legal power not only to exploit living and non-living resources in their respective Exclusive Economic Zone (EEZ) and the continental-shelf but these states have also been empowered to protect these resources with use of force if necessary. Maritime forces of such states, like the fishery protection agencies, coast guard and even navy are entrusted with this task. The coastal states have also the duty under UNCLOS-III to take steps against those who pollute the seas. Despite these provisions, as well as reasonably adequate maritime forces, states find it very difficult to implement these provisions because of certain legal handicaps, especially in defining terms like piracy as also in the case of hot pursuit, as will be discussed in subsequent pages. A framework of regional cooperation will enhance their total capability in that respect.

While life and property of ordinary citizens is not directly threatened by acts specified earlier, they become the primary targets in cases related to the third category which includes crimes ranging from theft on board the ship to armed robbery and even piracy. This threat has increased substantially since the eighties. According to one expert, the number of such reported events has increased from 107 in 1991 to 285 in 1999. Of these, in 1999, 173 events were reported from Southeast Asia and 43 from South Asia.1 Hence 210 events out of a total of 285 originated in and around the area under study. While most of these acts were minor in nature there were some major acts that need to be mentioned like the incidents of m.v. Alondra Rainbow (October-November 1999) and m.v. Zude Star (June 2000) in India and m.v. Cordiality (September 1997) m.v. Princess Kash (August 1998) and m.v. Yu Via (1999) in Sri Lanka.

While these acts covered under piracy are primarily aimed at the life and property of the common man acts under the under the fourth category primarily target the state system per se. Of these, illegal traffic in arms, ammunition, explosives and prohibited drugs deserve special notice since these directly or indirectly promote terrorism and insurgency. While these items are also transported overland or by aircraft, transfer by sea-route has its advantages. These can be sent in bulk, transferred from the mother ship to smaller boats and landed at "safe" places anywhere along the coast. The danger of such transfers via sea became apparent in India after the series of bomb explosions in Bombay in 1993. Tons of RDX were reportedly landed on the Konkan coast, south of Bombay. The same route was also used for the traffic in illegal drugs. After the Coast Guard and the Navy intensified their surveillance in the Arabian Sea region, the traffic in illegal drugs, and arms etc. reportedly shifted south and the Tamil Nadu coast became the major drug route.2

Connected with this threat of maritime low intensity conflict is the use of mercenaries to destabilise a regime. This is especially true of small island states like Maldives when in November 1988 not only were a band of mercenaries transported by ship to Male, but these mercenaries on the failure of their coup attempt, hijacked cargo ship m.v. Progress Light in their bid to escape from Male, the capital of Maldives. They also took important Maldivians as hostages.

As noted before, some of these acts, which are essentially criminal in nature, are sought to be legitimised as politically motivated acts. It has led to a never-ending controversy whether such acts are criminal or are politically motivated and hence not criminal. Despite political support in certain quarters, these acts have been condemned and several international conventions have declared such acts as unlawful. For example, UN Hostage Convention of 1979 prohibits seizure or detention of hostages or threat to kill, injure or to continue to detain them in order to compel a third party 'to behave in a certain way'. It also urged states to enact laws to implement that convention. Even today an acceptable method has not been evolved to balance the requirement of armed action by politically motivated groups and the need for freedom and security of an average citizen. "Certainly, personal security of life and property far outweigh the need for radical groups to prey upon the innocent."3

There are two main reasons why developing states are unable to take adequate steps against various types of maritime crimes. The first is the inherent inadequacies in the provisions of international law (UNCLOS-III) dealing with such crimes; especially provisions relating to 'piracy' and 'hot pursuit'. The second is financial and technological constraint in trying to manage huge maritime zones that several of these states have inherited under the provisions of UNCLOS-III. Obviously, cooperation at bi-lateral, sub-regional, regional and global level, besides working towards evolving a more viable system of international law and domestic or state law and practice would provide the way out. Though some half-hearted steps are being taken in that direction, much remains to be accomplished before a viable security system against non-conventional maritime threats can be established.

International Law and Non-Conventional Threats

It seems that while the scope of littoral state's jurisdiction over adjoining waters has expanded greatly, international law dealing with maritime security has been almost static since 1958 if not earlier. Even UNCLOS-III has failed to provide an appropriate framework. Rather, it has created several 'grey areas' that add to the confusion. It can be best illustrated by analysing two interrelated issues; piracy and right of hot pursuit.

Confusion over legal terminology is evident from the indiscriminate way in which journalists and even experts use words that have different legal implications. Jayant Abhyankar, Deputy Director, ICC's International Maritime Bureau, UK., while discussing the case of Alondra Rainbow said, "Gang of pirates hijacked it".4 Either it was an act of piracy or of hijacking. Both are treated differently under international law and practice. Similarly, The Hindu reported on June 11, 2000 that an Italian cargo vessel Medstar, which was to drop anchor at the Kandla port on June 10, had been "hijacked by armed pirates off the Kutch coast of Gujrat". Subsequently, it was reported by The Hindu on June 15, 2000 that the Indian Coast Guard found no arms or bombs and that those who had been reported as pirates who had illegally hijacked the ship were only 'innocent' stowaways (10 Iranians and 4 Iraqis).

The Coast Guard quickly washed its hands off the matter by saying, "Once we know for sure that the ship has no arms or ammunition and that it was not hijacked as reported by its master and owners, our role is over."5 After the Coast Guard, which had responded to the call of the owners of the ship and the master, had disclaimed any further responsibility even of the stowaways who were illegal immigrants under law, it was upto the Italians and Protection and Indemnity Club (P&I Club) to deal with the stowaways and their demand for asylum in a European country. Probably, owners of the ship preferred to deal with the stowaways-cum-hijackers on their own rather than deal with them through the Indian legal system.

Unwillingness to use the term 'pirate' and 'piracy' is because it poses various constraints under existing international law. Piracy had almost died down by the end of the nineteenth century. Hence no one seemed interested in updating laws dealing with it. An attempt was made during the inter-War period when the Harvard Research on International Law Group produced a Draft Convention in 1932 on piracy. While it was not a binding codification it added notions like 'private end' motivation. Piracy remained confined to 'high seas' i.e. beyond the 3 n. mile territorial sea limit.6 A serious scholar of international law, like I.L. Oppenheim, also offered his own definition: "Piracy must be defined as every unauthorised act of violence against persons or goods committed on the 'open sea' either by a private vessel against another vessel or by a mutinous crew or passengers against their own vessels.7 He avoided the term 'high sea' and used a neutral term 'open sea'. After the formation of the UN, International Law Commission, in its report to the General Assembly in 1955, offered its own suggestion. That report, which had incorporated many points of the Harvard Group's definition, became the basis of the provisions of the Geneva Convention of 1958 on the High Seas. Article 15 defined piracy. It is important to note that the 1958 Convention did not mention "terrorism" or "hijacking" of vessels within the purview of piracy. It also made a distinction between mutiny and piracy. Most of the provisions of the Geneva Convention were incorporated in Article 100-107 of the UNCLOS-III that deal with piracy.

UNCLOS-III, while fairly explicit when defining the rights and obligations of the coastal state, is unclear on many points on the question of enforcement. It had led to several 'grey areas' that need to be identified and the deficiencies met so as to strengthen maritime security. The first major grey area is on the definition of delimited areas of exclusive state sovereignty, state jurisdiction and areas of universal concern. UNCLOS-III is very clear about exclusive state sovereignty over the waters and airspace till the limit of the territorial sea. Beyond that upto the limit of the EEZ (200 n. miles from the low water mark on the shore) is the grey area of littoral state's jurisdiction.

In the case of contiguous zone, i.e. an area extending 12 n. miles beyond the limit of the territorial sea, the littoral state has the right to prevent infringement of its customs, fiscal, immigration and sanitary laws under UNCLOS-III, (Art. 33(1)a. It also has the right to punish those who infringe these laws, though even that aspect is imperfectly spelled out. UNCLOS-III also recognises littoral state's right for exclusive exploitation of its living resources and conversely the right to enforce its right.

Article 86 of the UNCLOS-III defines the high seas as "the maritime zone not included in the EEZ..." While this might satisfy the littoral state's right to protect its natural resources, this definition of the high seas poses problems when we deal with the question of piracy or of hot pursuit. Rear-Admiral OP Sharma, former Judge Advocate General of Indian Navy, argued, "As the legal status of the EEZ is arguably sui generis since it is not clearly stated to be either part of the high seas or the territorial waters, it is the responsibility of the coastal state to protect navigation from piratical attacks."8

The question of "enforcement" is closely related to the right of visit (Art. 110) and of hot pursuit (Art.111) of UNCLOS-III which prescribe that these rights have to be exercised only on the high seas. The right of visit enables any state to "visit" i.e. check and if need be take necessary action against any ship suspected of indulging in piracy, slave trade etc. on the high seas. It reaffirms the principle of universality. On the other hand, right of hot pursuit enables a littoral state to continue to pursue a ship, suspected of having indulged in criminal activity, from within its territorial sea or zone of enforcement, even on the high seas. The right of hot pursuit ends when the vessel being pursued enters the territorial sea of its own state or of a third state. This prevents the ship indulging in hot pursuit from infringing the sovereignty of another state. Thus, right of hot pursuit implicitly does not apply principle of universality. Under such legal constraints of UNCLOS-III only bilateral or regional mechanisms can offer a solution so as to book the criminal.

Attempts have been made to bypass some of these constraints rather than to amend UNCLOS-III itself. While the issue of maritime terrorism led to the Rome Convention of 1988, the issue of piracy prompted the International Maritime Organisation (IMO) to take steps designed to curb that threat to maritime security.

Issues relating to acts of 'terrorism' had led to a series of conventions on hijacking of aircraft and hostage taking etc. It was the hijacking of Achille Lauro on October 7, 1985 that focused international attention on the question of maritime terrorism. Consequent to the Achille Lauro incident, the IMO established an Ad Hoc Preparatory Committee to consider a Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. The draft was presented by Austria, Egypt and Italy. The draft was agreed upon at a meeting in Rome in 1987.9 It was approved by a conference on March 11, 1988. The Rome Convention, commonly termed as SUA Convention, formally came into operation after ratification in 1992. Till December 31, 1999 only 43 out of 192 member governments of IMO were signatories.

As noted, containing 'terrorism' per se rather than piracy was the primary focus of the SUA Convention of 1988. Since, terrorism, hijacking etc. were politically sensitive terms their use was avoided. Instead, "unlawful acts against safety of navigation" included neutral phrases such as "seizure of ships by force (instead of hijacking), acts of violence against persons on board ship or placing of devices on board the ship which were likely to destroy or damage it (acts of terrorism) etc. A protocol subsequently extended the provisions of the convention to fixed platforms on the continental-shelf.10

The question of 'piracy' in its broader context became the focus of attention only by the beginning of the 1990s. Sweden drew attention of the Maritime Safety Committee (MSC) of IMO about the alarming rise in attacks on ships at anchor or near the coast in West Africa. The MSC prepared a draft which was adopted as Resolution A 545 (13) by the IMO Assembly in 1991. The IMO resolution by-passed the legal constraints on the use of the term piracy by clubbing it with armed robbery. It urged member states to take all steps to "prevent and suppress acts of piracy and armed robbery from the ships in or adjacent to their waters. Thus, constraint of 'high seas' was also removed. It also urged governments to report all incidents of 'piracy' (which now includes armed robbery in adjacent waters) and make all efforts to support anti-piracy operations in their waters.

While IMO is an international organisation under the UN, other bodies which do not enjoy that status are also intruding in this field. The IIC's International Maritime Bureau (IMB) has defined piracy as follows: "Piracy is an act of boarding of any vessel with the intent to commit theft or any other crime and with the intent or capability to use force in the furtherance of that act." Thus, a totally new definition is being given to the term piracy. In fact, this definition has no status in international law since it goes contrary to several provisions of UNCLOS-III. But as Jayant Abhyankar, Deputy Director of ICC, IMB says, "Whilst this may be legally correct, such a distinction is irrelevant in the eyes of the victim."11

The rising graph of these criminal acts led to the IMD resolution of 1991 in which all governments were urged to report all incidents of piracy and make all efforts to support anti-piracy efforts in their waters. The Maritime Security Committee of IMO began to compile reports on acts of such crimes under 'piracy'. In our enthusiasm to suppress 'piracy' we are in fact allowing such bodies to undermine state sovereignty because a state is not under any obligation to report thefts and armed robbery within its territorial waters, which constitutes the bulk of the figure of so-called 'piracy', to any international body. Neither is a state bound to report on action taken in that regard. This does not mean that littoral states should not check such crimes and if necessary seek the help of neighbouring states on a reciprocal basis. Hence, a negotiated mechanism at a sub-regional level, rather than an international supervision imposed from above, is the best method of achieving the desired result while simultaneously safeguarding national sovereignty.

Bay of Bengal: Zones of Maritime Cooperation

While enough attention has been given to the question of evolving regional security mechanisms arising from land-based low intensity conflict (LIC) hardly any attention has been given to the question of evolving a regional maritime mechanism in that context. It is time that one recognises the relevance of evolving suitable regional maritime cooperation to meet such threats. In that context, Bay of Bengal provides an excellent test case.

As a maritime region it enjoys several geopolitical advantages. It is a compact water body enclosed from three sides. Major sea lanes traverse through it either via Malacca Strait to Southeast Asia and the Far East or to Australia. It is closely connected via the Andaman Sea to the strategically important Malacca Strait. There are no major issues of intra-regional conflict except a few unresolved problems of demarcation of maritime boundary of Bangladesh with India and Myanmar. But that need not come in the way of forging regional cooperation for strengthening maritime security by concerned regional powers.

Bay of Bengal and its adjoining maritime environment is too large a region for evolving a comprehensive framework for regional cooperation at this stage because the issues confronting the littoral states are different. hence it will be more practical to proceed with evolving instruments of maritime cooperation within its sub-regional units and to seek to evolve a common denominator for the entire region when conditions are more appropriate and after instruments of cooperation between these sub-systems are fully operational. These sub-regional zones are: the Malacca Strait, the Andaman Sea, Bay of Bengal per se and North-Central Indian Ocean. These four sub-regions form a connecting chain and hence are capable of being integrated in a larger body in the years to come.

These four sub-regions are not only complete in themselves but some of their members also spill over into the adjoining sub-regions. The sub-region of the Malacca Strait, comprising Singapore, Malacca, Thailand and Indonesia, though geostrategically linked to the Bay of Bengal via the Andaman Sea, is also an intrinsic part of Southeast Asia. Hence, it links the Bay of Bengal with Southeast Asia and the Pacific. Simultaneously at least two of its constituent units; Indonesia and Thailand are part of the adjoining Andaman Sea Zone.

The Andaman Sea is the connecting link between the Malacca Strait and the Bay of Bengal proper. Approximately 200 ships pass through this strategic choke point. The marshalling point for the mercantile traffic entering or leaving the strait lies in the Andaman Sea.12 The Andaman Sea influences the maritime zones not only of Thailand and Indonesia but also of Myanmar and Bangladesh besides India. Thailand has recognised its importance and has established its Third Naval Area Command in the Andaman Sea. In this context, it is important to underline the fact that the entire area of the Malacca Strait and the Andaman Sea comprises the territorial sea and EEZ/continental-shelf of the littoral states. That should act as an incentive for promoting regional maritime cooperation.

Adjoining the Andaman Sea is the Bay of Bengal which washes the shores of Indonesia, Myanmar, Bangladesh, India and Sri Lanka. Most of the Bay of Bengal is also covered by the area which is under maritime sovereignty or/and jurisdiction of various littoral states. Only a small area in the middle remains as the high seas as defined under Article 86 of the UNCLOS-III. This should also facilitate maritime cooperation in this sub-region.

Adjoining it is the North-Central Indian Ocean. It is not linked with the Bay of Bengal but is also strategically very important for the security of the Bay of Bengal as well as sea-routes to Australia and Southeast via the various straits in the chain of the islands of Indonesia. Events in Sri Lanka, Maldives and India in this sub-region have a direct bearing on the Bay of Bengal and even Southeast Asia.

While these four sub-systems are capable of evolving mechanisms of maritime cooperation suitable to their specific needs, yet they form a part of a chain of inter-connected sub-systems of the Bay of Bengal maritime regime. There is an in-built interdependence in their coordinated action if the full potential of regional maritime cooperation has to be exploited. It has one more advantage. While no single state can really dominate, all can benefit from regional cooperation. Also, the presence of several states in the overlapping zones not only will ensure greater confidence, but also pave the way for smooth inter-zonal cooperation. Such an environment of maritime cooperation will also help to promote parallel moves for cooperation in civilian-developmental spheres like fishing, regional trade, disaster management etc.

Mechanism for Maritime Cooperation

Cooperation to enhance maritime security in the context of non-conventional threats will need to focus on the following:

1) Information exchange and coordination at sub-regional and regional levels.

2) Common access to monitoring and surveillance systems in the region.

3) Mutually agreed (maritime) border management mechanisms which would include commonly accepted measures for curbing criminal activities across the border.

4) Reciprocal enforcement of each others' laws. It is facilitated if there is a commonly agreed view on the subject.

5) Joint enforcement and sharing of or delegating responsibilities, for example, in the context of hot pursuit, through the creation of joint institutions specified for the purpose.

6) Common training programme etc.

Experience has shown that despite best efforts regional cooperation is no substitute for the efforts by the individual states concerned. As some of these illustrations reveal, a judicious mix of self-reliance and bilateral or regional cooperation becomes the basis of viable security policy. In that context it will be useful to discuss in brief four cases; the question of piracy in the Malacca Strait and its spillover effects in the Indian Ocean, aspects of maritime terrorism in India, maritime dimension of insurgency in Sri Lanka, and the threats to security of a mini-island state like the Maldives.

Since the nineties, maritime criminal activities, now broadly termed as acts of piracy, have greatly increased in Southeast Asia, even in the Malacca Strait. The IIC's IMB has established a Piracy Reporting Centre at Kuala Lumpur in 1991. It sends a daily satellite broadcast to mariners at sea on the reported piracy attacks. The International Chamber of Commerce (ICC) also has a website which gives details of location and nature of attacks. While these provide useful information and possible warning, there is as yet no effective enforcement agency to curb these activities. An anti-piracy centre is proposed to be established in Batam Island (Indonesia) opposite Singapore. It will track all shipping in the Malacca Strait and adjacent waters. This will be based upon the reporting by merchant vessels only. It is also envisaged to have a computerised monitoring system and a reaction fleet of fast patrol vessels or aircraft for taking effective counter-measures. These are likely to be based at the Tanjung Piang naval base on the adjacent Bintan Island.13

Failure on the part of regional powers to ensure safety of navigation in an international strait has provoked some major users to suggest an international mechanism for ensuring security of sea lanes against low-intensity threats. Naoyashi Ishikawa, a former shipping-line official of Japan, floated such an idea in October 1999. It envisaged the establishment of a United Nations Coast Guard to battle Asian piracy. Japan's Navy (Self Defence Force) is prohibited under the constitution to operate beyond Japan's immediate waters. But, it was suggested that Japan could contribute, along with other concerned states, towards the UN-led effort to provide security to the sea lanes in that area. How regional powers as well as the regional great power like China will look at this proposal remains unclear. If the regional powers fail, the issue is likely to be internationalised. This will most likely intensify tension in the region besides eroding national sovereignty.

Regional action is hampered because of an outmoded frame of international law, especially relating to hot pursuit. Pirates move swiftly with exceptional nautical skill and avoid sticking to a single nation's territorial waters in order to avoid hot pursuit. This prevents navies and coast guards from approaching them as it would involve transgressing into another state's waters, thereby creating a jurisdictional problem. According to Vijay Sakhuja, "The problem is that most states lack bilateral or multilateral arrangements to permit other navies/coastguards to indulge in hot pursuit of pirates into each others waters. This absence of an institutionalised understanding among countries has largely been responsible for perpetuating piracy".14 Effective regional cooperation is the only answer.

While India also suffers from petty theft and attempts at armed robbery on board ships at anchor near busy ports, the main threat arises out of the maritime dimension of terrorism, especially landing of terrorists as well as of arms and explosives. These are also linked with drug trafficking. The shallow waters and creeks of the Gujrat coast, especially of the Kutch region, now under immediate surveillance of the maritime wing of the Border Security Force (BSF), as well as the seacoasts of Maharashtra and Tamil Nadu are the sensitive areas and under constant surveillance of the Navy and the Coast Guard. These seacoasts are too open and vast for any effective regional cooperation especially if the threat is from next door. Hence India has to rely upon its own resources. While the Tamil Nadu coast had become militarily sensitive after 1983, if not earlier, the Gujrat and Maharashtra coasts drew special attention after 1993 when Operation Swan was launched by the Coast Guard in cooperation with the Navy to patrol sensitive areas off the west coast.15

Sri Lanka is faced with two distinct but interrelated problems. These are acts of piracy against foreign merchant vessels and the question of maritime insurgency as represented by the activities of the Sea Tigers; the naval wing of the LTTE. The two are interrelated since acts of piracy are also linked to the overall insurgency activities. As noted earlier, several large foreign merchant vessels have come under attack. Some of them deserve attention since these attacks have intensified after 1997. In July 1997 m.v. Morangbong was attacked. In September 1997, the Cosco-owned 35,110 dwt m.v. Cordiality was captured near Trincomalee. Five of the Chinese crew were reportedly killed. The Sri Lankan Navy, in its offensive, allegedly killed 25 'rebels' in small craft. According to The Hindu of September 28, 1999, the cargo ship was also lost. The next major attack was on m.v. Princess Kash. It was a Belize-flagged vessel and had an Indian crew. It was also hijacked and was being taken towards the LTTE stronghold in Mullaitivu. The ship was bombed on the way by the Sri Lankan Air Force to prevent its cargo from falling in the hands of the LTTE. The status of 22 crew members is not known. Yet another ship, m.v. Yu Via, from China, was intercepted by the LTTE while it was enroute from Sri Lanka to Chennai. It was also reportedly engaged by LTTE boats near Mullaitivu. The Sri Lankan Navy intervened. The vessel was towed to Trincomalee since its steering gear was damaged in the fighting. The crew were reportedly safe.16

Sri Lanka's operations against the LTTE, especially its maritime dimension, deserves a separate in-depth study. Suffice it to say that even prior to the growth of Tamil armed insurgency, Sri Lanka's Navy, in its wisdom, had deliberately reduced its off-shore naval capability by discarding heavier surface combatants like frigates and escort-minesweepers in favour of small fast patrol boats suitable for preventing smuggling across the narrow Palk Strait. Thus, the Navy was reduced to the status of the customs department. Over the years, the Navy lost whatever expertise it had in operating larger warships on the high seas. The naval-air wing was also totally neglected.

Gradually, after 1983, these small, fast and lightly armed patrol boats were upgraded in speed and armament. Sri Lanka's Navy, however, remained an inshore navy. It had three major roles; to try and seal the Palk Strait in the north, to out-fight the fast armed boats of the Sea Tigers, and to protect the coastal sea lanes, especially from its major naval base at Trincomalee to the northern part of Sri Lanka in the Jaffna Peninsula.

Sri Lanka tried to fulfil that objective by taking several steps. Since the Palk Strait was considered as one of the major sources of supply of the LTTE, Sri Lanka tried to sanitise it and it deny its use to the LTTE. In 1986, a notification declared northern territorial waters upto five miles into the sea as a prohibited zone. The stretch also included the sea from Mullaitivu to Trincomalee. In 1993, after the Sea Tiger attack in August in the Jaffna lagoon, Sri Lanka through a notification of September 3, banned all vessels except those of its Navy from operating in the northern territorial waters extending from the north of Manar in the west to Trincomalee in the east. Since the territory south of the Jaffna Peninsula was under LTTE's effective control, the sea route via these northern waters was the most viable supply route for Sri Lankan forces stationed in the north.

While these were essentially tactical moves, they were given the role of naval strategy. The result was that these steps tied down Sri Lanka's Navy to its inshore waters only. In that process the distant coastal waters and the high seas beyond were left largely unattended. LTTE thus continued to receive the bulk of its supplies via the high seas. If Sri Lanka's Navy had also acquired medium-size combat vessels like 600 to 800-ton corvettes armed with heavier 3 inch (76 mm) guns and had developed a modest air-based maritime patrol capability it could have succeeded in denying that advantage to the LTTE. At the moment, there seems no prospect of Sri Lanka's Navy acquiring that strategic advantage over the LTTE. Consequently, the ding-dong skirmishes will continue with both the parties enjoying almost equal tactical advantages.

Insurgency in Sri Lanka had its spillover in India as well. India-Sri Lanka cooperation to combat it was codified in the much debated Indo-Sri Lanka Accord of July 29, 1987. It needs to be underlined that it is still a valid document since neither India nor Sri Lanka has formally repudiated it. Articles 2.16(a) and (b) are of particular significance. Article 2.16 (a) says, "India will take all necessary steps to ensure that Indian territory (which also includes territorial waters) is not used for activities prejudicial to the unity, integrity and security of Sri Lanka". Article 2.16 (b) is still more specific. "The Indian Navy/Coast Guard will cooperate with the Sri Lankan Navy in preventing Tamil militant activities from affecting Sri Lanka." It is also interesting to note that both these articles impose a unilateral obligation on the part of India without any reciprocal obligation on the part of Sri Lanka. Article 12.1(c) makes it even more specific. "In the event that Government of Sri Lanka requests the Government of India to afford military assistance to implement these proposals the Government of India will cooperate by giving to the Government of Sri Lanka such military assistance as and when required". One wonders if there was even a protocol to regulate that one-sided commitment on the part of India though some element of reciprocity was contained not in the main text on the accord but in the exchange of letters dated July 29, 1987 between Rajiv Gandhi and J.R. Jayawardene. In that letter, both states reaffirmed the decision not to allow their respective territories to be used for activities prejudicial to each other's unity, territorial integrity and security.

Indian forces were employed in support of the policies of Sri Lanka. Indian Navy and Coast Guard were also employed as a part of the IPKF operations in Sri Lanka. Even after formal withdrawal of the IPKF, India continued to provide help. The most vivid example was the interception of m.v. Ahat, a small 400-ton ship registered in San Lorenzo. Reportedly, Indian Coast Guard vessel Vivek noticed it in Indian EEZ on January 15, 1993. The Indian Navy dispatched INS Kirpan, a frigate, as reinforcement. On January 16, m.v. Ahat reportedly entered Indian "waters". Since it was suspected of carrying men and material for the LTTE, it was intercepted. The members on board the ship were offered the choice of surrender. Some crew members did jump into the sea but many died when the ship was set on fire. Reportedly, Kittu, an important LTTE leader, was also on board the ship. The episode raised several issues of international law as well as of domestic law.

The episode gave a spurt to some diplomatic activity. Drafts of agreements coordinating naval patrols in the Palk Strait were prepared to try to contain the problem of fishing in the troubled waters of the Palk Strait where the lure of fishing and fear of Sea Tigers has led to trigger happiness among the nervous members of the Sri Lankan Navy. Some attempt was made towards that. Rajesh Pilot, the then Minister of State for Internal Security, while on a visit to Madras (Chennai) said on February 1, 1994 that bilateral cooperation was going on between the two countries on questions related to information sharing and coordinated action.17 But, as events have proved, mutual suspicion and distrust prevailed over the need for mutual cooperation.

Problems of mini-island states like the Maldives are rather unique. It is too small in population and resources and too widely dispersed to evolve a viable security framework. Its weakness was revealed when a handful of ill-trained and ill-led mercenaries attacked its capital Male in November 1988. Reportedly, some expatriate Maldivians, which included Abdullah Luthufi, who had settled in Sri Lanka, and Sagar Ahmad Nasser, contacted the Sri Lankan Tamil militant group PLOTE (People's Liberation Organisation of Tamil Eelam), then led by Uma Maheshwaran, for help in return for the use of one of the several islands of the Maldives, as well as a promise of payment of $2.5 mn.18

Approximately 200 mercenaries managed to sail from Sri Lanka in fishing boats and to reach Male undetected in the early hours of November 3, 1988. Their focus of attack was the National Security Service base as well as the capture of President Gayoom. The plan fizzled out largely due to the ineptitude of the mercenaries and partly due to the timely response by India, under Operation Cactus, at the request of the President of the Maldives. Paratroops were landed near Male who soon overpowered the mercenaries. Some of them managed to escape, along with several hostages, in cargo ship m.v. Progress Light which was at anchor at Male. The vessel was subsequently intercepted by I.N.S. Godavari of the Indian Navy. After the show of strength, commandos on board the Godavari boarded the Progress Light in the morning of November 6 about 100 km off the Sri Lankan coast. About 20 hostages were rescued and 46 mercenaries captured. Because of the damage suffered, Progress Light capsized while it was being towed to Male. The entire episode presented several tricky questions of international law involving issues like piracy, hijacking, hostage taking, insurgency etc. But they were submerged under the deluge of political rhetoric.

Presumably, Maldives has strengthened its security since then. According to a Japanese scholar, "Each state has some obligation to fulfil by virtue of being a sovereign state. One of these obligations is to protect its nationals from the destructive terrorist activities of mercenaries. If a country is unable to rise against threats and ensure security to its citizens, it will have failed to perform its most important duty as a state."19

Undoubtedly Maldives faces a difficult task. It cannot afford a credible national military capability sufficient to ensure its security even against threats posed by foreign mercenaries, internal instability or a combination of both. The only regional power that has the necessary rapid reaction capability is India. Moreover, India has a stake in peace and stability not only in the Maldives but also in Sri Lanka for sound geostrategic reasons. These island republics dominate the sea-routes of the North-Central Indian Ocean. While these routes are important for international shipping they are also the only sea route at present linking the Indian littoral in the Bay of Bengal with that of the Arabian Sea. India would not like this route to be dominated by a power hostile to its national interest. No wonder, India had to establish a Southern Naval Command at Cochin.

Though India possesses the capability to intervene, it would not like to flourish it any more. Its well-intentioned responses to the crises in Sri Lanka and the Maldives, though in response to the call by the legitimate governments of those states, were projected as a part of its hegemonic designs. Even the well-intentioned Gujral Doctrine came under attack on that count.20 That was also one major reason why India remained most reluctant in its overt responses vis-à-vis the Sri Lankan crisis in May-June 2000.

India and Regional Cooperation in the Bay of Bengal Region

India has a vital stake in the preservation of peace and security in its eastern neighbourhood which, in a way, constitutes a part of its strategic frontier. Hence, it is in India's long-term interest to see a strong and stable neighbourhood. Maritime cooperation will play a crucial role in promoting that. India, by its geopolitical location, is advantageously placed. It is not only the connecting link between the Malacca Strait and North-Central Indian Ocean, but the chain of Andaman and Nicobar Islands helps it to monitor the traffic between the Andaman Sea and the Bay of Bengal. India also enjoys the political advantage in that it does not have any adversarial relationship with any of its neighbours in this region. Whatever differences are there do not constitute an insurmountable obstacle towards regional maritime cooperation.

India has developed, over the past two decades if not more, an adequate capability to monitor maritime zones around it even during peace time. Its Navy too has developed sufficiently to render valuable support if and when necessary. Other regional powers too have developed such capabilities. But the task of monitoring vast maritime zones of each state is too big for individual states to perform effectively. Their individual resources, which at the moment are spread too thin, can be better utilised if the neighbouring states initiate a framework of regional or sub-regional cooperation.

A word of caution needs to be injected at this juncture. While India does possess an adequate "enforcement" capability in the shape of the Navy and the Coast Guard, its capability at the level of 'states' leaves much to be desired even in highly sensitive areas like the states of Gujrat, Maharashtra, Tamil Nadu and even in the Andaman-Nicobar Islands. There are legal and practical reasons for creating and/or enhancing the role of maritime security force at the level of the coastal states of India. At the moment, it is sadly neglected. Simultaneously, one needs to amend the definition of terms like 'piracy' in the context of domestic law. Under the Constitution of India, piracy comes under the Union List (21). Also, as per the Constitution, "Piracy and crimes committed on the high seas or in the air", come under the control of the Central government. Does it mean that 'piracy', as a crime under its new definition, does not come under the jurisdiction of the state? Under the Navy Act of 1957 passed by the Parliament, as also under the Regulations of the Navy (REGS, IN) Part I, Navy has the duty to take action. Coast Guard, a central body, is also so authorised. But what about the state police?

Under the Constitution a coastal state has jurisdiction only over the question of fishery within the territorial sea limits. It should also have jurisdiction over all the crimes committed in that zone. Also, it needs to be fully equipped to deal with it. It is time that the state police be enlarged so as to have an effective maritime wing equipped to monitor the inshore waters at least up to 24 n. miles from the coast. Such a force will become a very useful link between the Navy and the Coast Guard. These can best operate in off-shore waters and on the high seas while the state maritime police (operating nearer the shore) will act as links with these central maritime enforcement agencies as well as those on the land.

India also needs to pass necessary legislation so as to incorporate the provisions of the UNCLOS-III of 1982 and the Rome Convention of 1988. These deficiencies were revealed in the case of m.v. Alondra Rainbow, a 7,000-ton Panama registered vessel belonging to a Japanese firm. After it was hijacked from Southeast Asia it moved into the Arabian Sea and was sighted by a merchant vessel m.v. al-Shuhadaa. It brought quick response from the Indian Coast Guard and the Navy. The vessel was traced, intercepted and brought to the Indian port with the hijackers on board. Indian enforcement agencies, Piracy Reporting Centre at Kuala Lumpur as well as other vessels in the region had done their best to quickly identify and rescue the ship. But, will the legal procedure be so smooth? According to Jayant Abhkyankar, although India is a signatory to the UNCLOS-III, its provisions have not been incorporated in the national legislation (at least till the end of 1999). According to him, the Indian Penal Code does not address the offence of piracy or hijacking of ships. Further, according to him, though India became a signatory to the (Rome) SUA Convention in October 15, 1999, the accession of that convention came into effect only on January 15, 2000, while the alleged offenders of m.v. Alondra Rainbow were arrested on November 21, 1999.21

Conclusion

Till recently, India had neglected its eastern maritime frontier. Perception of India as a 'hegemonic' power in Southeast Asia as well as the Cold War environment and the Indian stand on the Kampuchean crisis could have been responsible for it. But, the post-Cold War environment has brought about a welcome change and Indian presence is being accepted as friendly by several states of Southeast Asia. India's newly developed ties with the ASEAN reflects this trend. India has even initiated certain steps unilaterally. In the meeting of the ASEAN's Regional Forum (ARF) held at Bangkok in May 2000, India circulated a concept paper on anti-piracy issues and offered to host a conference on the issue in Mumbai in October. India is endeavouring to generate and strengthen an environment of peace and security in its neighbourhood. Viable and functional maritime cooperation will contribute greatly towards it.

 

NOTES

1. Abhyankar Jayant, "Piracy Today-An Overview", Journal of Indian Ocean Studies vol. 7, no. 2-3, (New Delhi; March 2000), pp. 145-47.

2. Subrahmanian, Nirupama, "Tamil Nadu, On the Drug Route", India Today, September 30, 1994, p. 125.

3. McCredie, Jeffrey Allan "Contemporary Use of Force Against Terrorism", Georgia Journal of International Law," vol.16, no. 3, Fall 1986, p. 449.

4. Abhyankar, Jayant, Journal of Indian Ocean Studies, March 2000, p. 151.

5. The Hindu, June 15, 2000.

6. Joyner, Christ C., "Off-shore Maritime Terrorism", Naval War College Review, vol. 36, no. 4, July-August 1983, reproduced in Strategic Digest vol. 14, no.3, March 1984, p. 213.

7. Oppenheim, I.L., International Law, (Lauterpacht) 8th edition, pp. 608-609.

8. Sharma, O.P., "Piracy at Sea: Legal Aspects", Journal of Indian Ocean Studies, vol. 7, no. 2-3, March 2000, p. 157.

9. Halberstam, Malvina, "Terrorism On the High Seas: The Achille Laura, Piracy and the IMO Convention on Maritime Safety", American Journal of International Law, vol. 82, no. 2, April 1988, pp. 292-93.

10. Sharma, O.P. Journal of Indian Ocean Studies, March 2000, p. 160.

11. Abhyankar, Jayant, Journal of Indian Ocean Studies, March 2000, p. 141.

12. Sakhuja, Vijay, "Maritime Order and Piracy", Strategic Analysis, vol. 24, no. 5, August 2000, p. 933.

13. Strategic Digest, vol. 30, no. 7, July 2000, p. 1068.

14. Sakhuja Vijay, Strategic Analysis, August 2000, p. 929.

15. Government of India, Ministry of Defence, Annual Report, 1997-98, p. 38.

16. The Hindu, September 28, 1999. Also see Krishna Dev. Journal of Indian Ocean Studies, March 2000, p. 131 and Sakhuja Vijay, Strategic Analysis, August 2000, pp. 925-26.

17. The Hindustan Times, February 2, 1994.

18. Abraham, Thomas, "The Sri Lanka Link", Frontline, November 26-December 9, 1988, p. 32.

19. Takanashi, Hideyuki, "Maldivian National Security and the Threat of Mercenaries", The Round Table (London), no. 351, 1999, pp. 441-42.

20. Cherian, John, "Clear and Coherent, India's Foreign Policy Under I.K. Gujral", Frontline, vol. 14, no. 6, 1997, pp. 4-21 (for details)

21. Abhyankar , Jayant, Journal of Indian Ocean Studies, March 2000, p. 152.