FORUM FOR INTEGRATED NATIONAL SECURITY Initiate Interact Influence
STRATEGIC INITIATION OF THIRD LINE OF DEFENCE & HIGH RISK AREA DELIMITATION, RESTORE 65 EAST LONGITUDE
THINKERS’ MEET REPORT
July 11, 2015
www.�insindia.org
2015 FINS Thinkers’ Meet
Forum for Integrated National Security finsindia.org 7/11/2015
President’s Message
In the 21st century, anybody who rules the sea and space will rule the world. Fortunately, we have sea lanes too vital to be ignored. Indian Ocean is the only ocean in the world which has been named after a country. We don’t claim it as ours only. But we cannot ignore this geographical fact as well. Therefore, when we say maritime security and/or ocean security, our stakes are bound to be higher and it is going to increase day by day. When we take the philosophy of world governance in the 21st century, sea will hold the key and you cannot say only the coast guard, navy or maritime police will do the job. It will be the combined responsibility of all stakeholders. There is a convergence of security, commerce, influence and national interests. Hence, developments in maritime scenario are concern for all of us. But concern must transform into dominance and dominance needs power. You cannot dominate an area unless you are powerful.
Our area of immediate concern may be up to Karachi. It may be up to the Straits of Malacca. But our area of influence will go right up to the Suez Canal in the west and stretch on the east. It will go into Pacific. Then comes area of interests, which can go up to South China Sea and up to Mediterranean. As the nation progresses further, as we excel ourselves in the world our area of interests keep on increasing. In maritime perspective, there are seven check points in the world and five are in India’s vicinity. Geography has been very kind to us. It is geography which is important to us. It will give us in time to come the desire to build capacity. Capacity building takes time. Once your capacities are built up, your ability goes up and due to increase in capacity, you become more powerful and the world starts looking at you with respect.
Lt Gen (Dr) D B Shekatkar (Retd) President, Forum for Integrated National Security
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About FINS
There is a misleading assumption that national security is a domain strictly for the Governments, Police and Military. In a democratic setup like ours, national security should be concern of each and every citizen. In this framework, we can’t and should not have at least one liberty - to say that government will take care of everything. Vibrant and consciously thinking society acting in unison for betterment of the nation is the criteria for a strong and secure democratic nation. We may have our differences in political thinking. But when it comes to national security and national interests, all our differences must fade away. We have collective responsibility towards challenges that nation faces. In this sense, a secure nationhood can be achieved only if our every citizen is safe and well informed on matters of national interests.
Yes, Government has a decisive role to secure the nation, but we can help in making that security setup more robust and effective. And when we look at the future challenges presented by Information Age, role of every citizen becomes extremely significant & citizen’s participation is a must! We should no longer say that our Raksha Mantri and our armed forces will take care of everything. We must contribute in their efforts. We can support them in their decisions, taken in national interests.
Thinkers’ Meet is one such example of how people from all walks of national life can come together to discuss our national concerns, ideas and solutions. FINS shall make all possible efforts, so that such ideas and concerns reach desired authorities.
Adv. Bal Desai Secretary – General Forum for Integrated National Security
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About Third Line of Defence & PMSC
It does not look like, navies world over would have the required wherewithal or if I may say the other way round, why should Navy get into something which can be outsourced. In fact, there has to be a proper mechanism in place. Only if we have the ability and only if we have the control mechanism, then only this is advisable, otherwise it will be a serious challenge and as someone mentioned when we are so vulnerable to all kind of basic security – we have the coast guard, we have the marine police and still some people are able to reach our shores being unnoticed. Then if we do not have proper framework to monitor these floating armouries or PMSC probably they could be even bigger risk to us. If we have all that only then the PMSC are good to look at. Our first task will be to develop effective regulatory framework for easy, efficient and economical operability. Not only in India but we will have to make sure that we lobby with the international watchdogs and the agencies like IMO and United Nations for proper international regulations for this. Not just because it is in our territorial waters or shores and we are facing the heat. It should be international regulation, which governs all these PMSC.
So I think that is also essential if we are to really push this and look at the options. As far as SOP, standard operating procedures will have to be revisited. I am sure that it is an ongoing process and people keep doing that. There is always new incident and new learning and the operating procedures are revisited on those lines. The relatives cost to trade at this point of time may be something very small, may not be significant but I think we have to agree to the fact that human life is even more precious – probably it cannot be quantified and it is priceless. So the loss of trade and loss of economy may be insignificant but the loss of life and the trauma that people undergo with these kinds of incidents is too difficult to be ignored.
Shri Atul Kulkarni Convenor, Maritime Security Study Group Forum for Integrated National Security
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About FINS Maritime Study Group
Historically, for last two hundred years, no nation held power without strong maritime capabilities. For long duration, national power was equalled to maritime power. In fact, empires were built upon blue water.
1014 CE – 1045 CE Hindu King Rajendra Chola with his fleet of ships invaded and ruled Indonesia, Thailand, Malaysia and SE Asia. Realisation of Navy power thereafter saw a decline resulting in biggest ever strategic mistake where Bharat buckled under constant wave of attacks. Maritime Security in fact means the strength of our existence now.
In time, world has seen sea change in power game. But one constant remains – Indian Ocean. In this entire power game, Indian Ocean has been the game changer. No power was in position to ignore this fact. Unfortunately, we ignored it for long. Correction of course needs to be affected without delay.
In this context, maritime security study is critical to FINS. We look at this subject with three dimensional approaches - Strategic Security Interests, Geopolitical Interests and National Economic interests. As we see that in coming time, our strength and capability at sea will be definitive factor in our growth and strategic dealing. Beyond all this, India has a leading role in maintaining good governance at sea as a signatory to various IMO conventions.
Capt Sanjay Prashar Co-Convenor, Maritime Study Group Forum for Integrated National Security
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INDEX
Background…………………………………………………………………………………… 7
Floating Armouries - India’s 3rd Line Of Defence…………………………….. 8
Recommendation…………………………………………………………………………… 10
High Risk Area (HRA) Delimitation, Restore East Longitude………. 12
Conclusion……………………………………………………………………………………..65˚ 13
Experts View
Floating Armouries - India’s 3rd Line Of Defence
Shri Atul Kulkarni………………………………………………………………………….. 15
Dr. Bimal Patel……………………………………………………………………………….. 18
Capt Alok Kumar……………………………………………………………………………. 29
Vice Admiral S N Wadgaokar (Retd)……………………………………………….. 33
High Risk Area (HRA) Delimitation, Restore 65˚ East Longitude
Comdt NV Ramarao………………………………………………………………………... 36
Shri Subba Rao………………………………………………………………………………. 41
Capt Harish Khatri ………………………………………………………………………… 43
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BACKGROUND
On July 11 2015, Forum for Integrated National Security (FINS) Thinkers Meet on Indian’s Third Line of Defense – a maritime subject with commercial implication for the nation. The objective of the Thinkers’ Meet was to bring together stalwarts from industry, various stake holders and experts to deliberate on the ‘Strategic Initiation of the 3rd Line of Defence for India - Floating Armories’ and ‘Restoration of HRA from East back to East’. 78˚ 65˚By bridging the formidable legal voids exhibited in the concept of Floating Armories and accommodating this new regime of developing international law, the Thinkers meet was converged towards deliberating an appropriate domestic legal precedence, which can empower and launch the Floating Armories as the first of a kind “India’s 3rd Line of Defence.
The strategic issues deliberated before suggesting recommendations were as following:
1. Strategic Initiation of the 3rd Line of Defence for India - Floating Armories. 2. Security preparedness for the assets at Sea. 3. Security support for commercial vessels. 4. Neutralizing Revenue Losses. 5. Governance directives by GOI. 6. Creation of regulatory and policy framework for PMSC. 7. Immediate continued job opportunity for ex-servicemen 8. Views of the Enforcers, Industry and Administrators on the designated East HRA 78˚ 9. Financial and commercial impact of present designated East HRA
10. Security impact of the present designated East HRA 78˚ 78˚ The Thinkers meet was well attended by various Ministries, Defense Personals stakeholders from the shipping industry, think tanks, research scholars, Marine Police, Indian Coast Guard, lawyers and retired defense personnel.
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FLOATING ARMOURIES - INDIA’S 3RD LINE OF DEFENCE
Considering the above issues, various flag administrations left it to ship-owners to assess their risks and take steps for deployment of armed security guards from private agencies. Eventually IMO issued interim guidance on deployment of armed security guards through MSC.1/Circ. 1405 and 1406 both dated 23/5/2011.
During these various deliberations, it came to light that along with the requirement for deploying Private Maritime Security Companies (PMSC) on board the vessels, the need to replenish ammunition stock and logistical support to Presently about 700 the PMSCs gave rise to the concept of ‘Floating Armories’. PMSCs provide services, out of which 9 are Indian In India, this complex subject has been discussed and Companies and 14 negotiated at length in the Ministry of Shipping. It was Pakistani, whereas, 70% decided that the Indian ship owners be granted of the business is with permissions to deploy armed security guards, subject to UK, Europe and US based their risk assessment particularly for ships which bear firms. The 9 Indian slow speed and have low freeboard and in pursuance Companies do only HR relevant applicable laws. job by employing about 3000 Indians who are Statistics reveal that in year 2008, $60,000 was charged on ex- Indian Navy, Army merchant ships, per voyage through Gulf of Aden and and Para-military presently these Floating Armories all put together have personnel. about 80,000 arms deployed in the region. PMSC employ Ex-Indian Navy, Army personnel, Para-military personnel who work as Security Guards at a Salary of $800 ~ $2000 per month.
Though the growth of PMSCs and ‘Floating Armories’ have recede piracy but, the concept of floating armories remains under heavy global scanners.
Some countries like Sri Lanka, Djibouti, Mongolia, St Kitts and Nevis have given their flag ships approvals to be used as floating armories; the UK Government has approved 32 floating armories for use by UK PMSCs, whereas, the ‘Floating Armories’ remains an unregulated and threatening global concern. Presently about 700 PMSCs (none registered in India) provide such services, out of which 9 are Indian Companies and 14 Pakistani, whereas, 70% of the business is with UK, Europe and US based firms. The 9 Indian Companies do only HR job by employing about 3000 Indians who are ex- Indian Navy, Army and Para-military personnel. It is estimated that the International Shipping Industry has spent nearly $1 Billion on armed Guards / equipment’s in Indian Ocean in 2013.
India has geographical advantage of being in close proximity of an important international trade route. We have a vast coast line and Exclusive Economic Zone to secure. PMSC’s give preference to retired service men; India releases nearly 50,000 well-trained retired service personnel every year, most of whom are fit and willing to
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take on continued post retirement services. India has a location, skilled and trained personnel, commercial and strategic advantage to launch its 3rd line of defence, in public Private participation. The up-gradation for 3rd Line of defence will have a constant requirement of additional trained personnel and ‘Floating Armories’.
The PMSCs in active conjunction with ‘Floating Armories’, being the first of a kind of an international nature, will provide opportunity for recruitment of retired defence personnel, ensure control of arms floating around in the region and new service offering in the maritime domain with a global outreach.
The reference to the recent initiatives like "Blue Economy" and acquisition of offshore assets and the need arising out of this is missing.
This Thinkers meet was perceived to bring together stalwarts from the industry and other subject matter experts, to consider ways to bridge the formidable legal voids to accommodate this new regime of developing international law and to create appropriate international and domestic legal precedence to globally launch the first of a kind- India’s 3rd Line of Defence.
Thinkers’ Meet was instrumental in developing set of recommendations on Third Line of Defence.
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RECOMMENDATIONS
LEGAL
1. India may promulgate on-board regulations: Regulations on the use of boats including carriage of weapons and PMSC could be promulgated, preferably under IMO framework
2. Weapons carried on board - number and calibre of weapons to be restricted; shoulder launched missiles, rockets and similar weapons to be excluded;
3. No of private security guards onboard is currently 6, but no upper limit is defined. 4. Although immediate reporting of weapons use is in force, better enforcement through regulations are required so that any vessel carrying out firing, against confirmed or suspected pirates or armed robbery, should report immediately to Indian Search and Rescue Region.
5. Mandatory notification on Automatic Identification System: any vessel carrying weapons shall display the details on Automatic Identification System (ADS).
6. It is important to have oversight responsibility regulation: flag states or states of chartered ships shall provide regulations and mechanism which enable the coastal state to know the oversight mechanism.
7. Per Arrival Notification of Security (PANS) review: PANS in its current form requires that carriage of weapons in the entire Indian EEZ and ISRR be reported. In the absence of resources and unless vessel is boarded or prior intelligence available, Indian Coast Guard or Navy can do little. The issue becomes critical when vessels are transiting. India might consider using navy for providing security as this could solve jurisdictional issue, but does our navy have sufficient small ships to aid big commercial ships?
COMMERCIAL
1. Government of India approval process for Floating Armories in India is needed.
2. Rules of usage of Floating Armories in India need to be established for PMSC to operate from India.
3. Jurisdiction policies & Operating Guidelines for Floating Armories in India are needed.
4. On priority and Swift embarkation and disembarkation of Guards and Weapons at Indian ports. 10 Forum For Integrated National Security | finsindia.org
5. In advance approvals and provisions with authorities for port clearances alterations.
6. Army and Para Military forces to be issued Indian CDC Continuous Discharge Certificate.
7. Easy approvals for arms license for Maritime Security use. Digital information system can be created for arms control and regulation.
8. Availability of semi-automatic non-warfare weapons along with easy replenishment of ammunitions should be available for industry.
9. Availability of educational courses on Anti-Piracy and Weapon handling. 10. PMSCs should be given access to approved Firing Ranges for practice in India. 11. India can bring Floating Armories cartelization in check by keeping charges reasonable.
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HIGH RISK AREA (HRA) DELIMITATION, RESTORE 65˚ EAST LONGITUDE
Since the piracy remained persistent in the Gulf of Aden, the issue of armed security guards was taken up by the International Maritime Organization (IMO) and other Contact Group on Piracy off the Coast of Somalia (CGPCS) on priority. The Best Management Practices (BMP) were derived at including increased naval presence in this region.
As a result of the prescribed BMP, around 35% of the total number of ships transiting these infested waters of Gulf of Aden and Arabian Sea deployed armed security guards onboard their vessels.
Where security guards were deployed, there have been no reports of hijacking on ships. The marine insurance companies/clubs conveniently factored their premium rates with the level of implementation of BMP, relating to anti-piracy measures on board ships. This has increased the shipping cost multifold and at the end of the spectrum, it is the common man who continues to bear the brunt and pays a steep price.
Whereas, simultaneously, under the specter of piracy, the limits of the High Risk Area (HRA) which was located at East was shifted to and India continues to rue this altered limits. 65˚ 78˚East As a result of shifting of the HRA practically hugging the Indian coastline, India is faced with unfathomable disadvantages starting with security threats and breaches, dumping and marine pollution, damage and loss to Indian fisheries, danger to marine flora and fauna and also endangering of lives of fishermen as seen in the MT Enrica Lexie case.
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Indian Government, on various occasions, for the last two years has been pressing at various International levels to restore this limit back to its original. Relentless efforts are still in progress to move the HRA away from the Indian belly. Incidents like MT Enrica Lexie and MV Seamen Guard Ohio within Indian EEZ is the direct repercussion of the shifting of HRA to East back from East.
The issue of restoration of the HRA out of the78˚ Indian EEZ was discussed65˚ from the point of view of the (a) Enforcers- Coast Guard and Indian Navy (b) Commercial and financial impact on the Industry/Stakeholders (c) Regulator’s constraint in regulating laws pertaining the armed guards and ammunitions (Ministry of Defence & Ministry of Shipping).
In the 95th session of Maritime Safety Committee of IMO, concluded on 9th June this issue was raised. Egypt raised this issue through a paper and India also intervened. IMO said that though we are not the authors of the BPM but since the BMP has been endorsed by IMO through various circulars therefore IMO would advise the authors of the BMP to consider this aspect. Aspect is that the area where piracy attacks have not taken place but where preventive measures are still required. Such area cannot be termed as HRA.
CONCLUSION
India being a victim of the relocated HRA, has very sound reason to give a legal base to the Floating Armories and legislate accordingly. India having ratified UNCLOS, has a powerful guiding template to uplink a domestic legislation on Floating Armories, given that this is a new international subject and more of a challenge in its present stage. If India is in a position to bring its domestic laws on this issue before the international forum converts it into a Convention, on this subject, India will have a much better negotiating power. There are various interests in international bodies which are playing larger role in governance and regulations. It takes sufficient lobbying to achieve any decisive outcome in India’s favour. India must make concentrated lobbying efforts with international community to achieve desired goals. We need to pursue lobbying strategy, not just in maritime domain but in all issue of national interests where there are multiple international stakeholders.
Major Recommendation for the consideration by GOI are: 1. India must lobby hard with respective maritime nations for say in any decision pertaining to HRA limits affecting its commercial interests. 2. Process/guidelines can be laid down by IMO for any review of HRA. 3. In view of growing maritime activity in the country and in the region around, Govt. of India should seriously consider appointment of Maritime Expert in its High Commission at London for active participation in IMO.
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Floating Armouries
India’s 3rd Line of Defence
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Strategic Initiation of 3rd Line of Defense for India – Opening Remark
Shri Atul Kulkarni
Shri Atul Kulkarni is National Convenor for Maritime Security Study Group of Forum for Integrated National Security (FINS). He is an Advisor (International Projects) at Indian Ports Association with Special focus on opportunities for India to participate in development, operations and maintenance of maritime infrastructure in other geographies.
He is independent Management and Strategy Consultant in Infrastructure domain with special focus on Maritime Industry.
Shri Atul Kulkarni is serving as an Advisor to Ministry of Shipping and Ministry of Petroleum & Natural Gas GOI for developing the strategies and policies for development and improvement of ports and shipping infrastructure in India.
He has served as Chief Executive Officer of a Greenfield Cargo Terminal and Ship Repair Facility on the west coast of India.
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he requirement of the Third Line of Defence is a topic for discussion in the maritime sector more specific from the commercial shipping industry which is T now hiring the Private Maritime Security Companies (PMSC). Piracy is not new to commercial shipping. Probably piracy started ever since the commercial shipping and the human being has taken to the sea. People say that the very formation of the US marines was a result of US fight against the pirates from Libiya. So it is not something that is new.
But of course what has happened in the last decade is the reason that we have seen the subject being discussed globally. Acts and incidents that happened in the Gulf of Aden or the Horn of Africa somewhere in 2008. We had like 180 odd incidents over a period made the news globally and everybody started talking about this issue. If one has to go by some calculations, they say that Somali piracy has had a negative impact of costing globally to almost 18 billion dollars annually. Of course, as we see now piracy has shifted in Strait of Malacca and in Gulf of Guinea.
When Somalis started demanding ransom in lieu of the crew and the cargo, the whole world was shaken and then we had various deliberations at the IMO and at world forums leading to inclusion of article of 100 to 107 about this. This was adopted somewhere in April 2010. The flip side of this Article that we have adopted at IMO only refers to the platform operated by the government or by the military but it does not address the formation and operation by the Private Maritime Security Companies.
So PMSCs today are actually not governed by any international law or regulation. The regulation of the coastal state of each individual country as you enter their coastal waters governs the PMSC. So there is no global monitoring mechanism that controls the PMSC. This is the biggest challenge on our hand.
Of course, these companies came together and decided that there has to be some kind of standard practice that they must follow and thereafter they formed a forum called the International Code of Conduct for PMSC and they met regularly to discuss standard operating procedures. But the fact is - they are subject to different regulations when they approach a specific port.
We have seen incidents like Nigerian Navy capturing Russian ship which had almost 100 arms on board. Then we have a risk that these PMSC at times dump the weapons they carry on high seas just before entering the territorial waters. You may have some non state actors following these people who can pick up these arms that are thrown. It is a risk and concern to India because of proximity of the region where these companies are operating. The geographies in which we see the piracy and the threat of piracy, most of them were British colonies in the past. These armed guards come on board in Oman or somewhere in Sri Lanka or somewhere in African coast, we must see these things in perspective. Almost 80% of the PMSC of the world have UK background, 10% US background. Some companies are owned by Indians but since we do not have regulations in place, they are not registered here and are operating from offshore locations. So at one hand we have no regulation in place and on the other hand we have 2 incidents that happened along our coast.
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In 2012 we had seen MT Enrica Lexie and 2013 we have seen the incident of MV Seaman Guard Ohio and we have to legitimately debated this issue – do we need a regulation and if so what is the way forward because what is happening is if in 2008-09 and 2010 we had series of incidents, the private guards were paid probably $1000 a day and they used to be on board for 6 to 10 days depending upon the voyage. But nowadays we hear that people are paid a paltry $100 a day. Now if you are paying $100 per day what kind of professional – what kind of security person you will have on board. We have a risk of the trigger friendly guys coming on board and the incidents like MT Enrica Lexie are likely to get repeated.
I am not saying that every time this will be the case. But if this is the situation and happenings, should we not be worried about it? Should Government of India not come out with guidelines, policy and monitoring mechanism? Who is going on board? Who is keeping account of them? What is happening to these people when they are onboard and off hire? Where are the arms/weapons kept? Who is keeping custody of them? So this we thought needs to be discussed. Obviously, there is also an angle that we thought important – we want to engage in blue economy and want to become a dominant force in a good sense. Then we would also require this kind of security personnel with background from Navy or from uniform services because we are now looking at acquiring maritime assets globally whether it is energy or mining for resources, minerals or be it the recent agreement that the Hon’ble Prime Minister signed with Seychelles and other small nations for tourism purposes and for that matter the interest we have in participating in the development and operations of commercial ports globally. If we need a force or security group which can provide security to these maritime assets globally, this can be the opportunity for the people who are retiring with short commission from Army or the Navy to look at a career and may be government can look at this as deployment of these highly profession security experts.
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Evolving International and National Legal Regime and Governance for Private Maritime Security Companies
Dr Bimal Patel Director GNLU
Dr. Bimal N. Patel is a scholar and academician of international law and diplomacy. Dr Patel brings to the Gujarat National Law University a fifteen years combined experience of progressively academic leadership and scholarly research experience in international law, international relations, international organizations and academic/professional institutions. He has published 4 books and 17 research papers/articles/surveys in leading international law journals. He has taught, supervised research activities and projects in various universities in Asia, Pacific and Europe. He has provided leadership in strategic planning of policy-oriented pioneering academic research projects. He has prepared administrative, procedural and substantive jurisprudence of the International Court of Justice (ICJ) and the International Criminal Tribunal for former Yugoslavia (ICTY) and International Labour Organisation Administrative Tribunal (Geneva).
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rivate Marine Security Companies (PMSC) model has become a necessity in view of emergence of piracy and armed robbery at sea. What otherwise navies and P police do in their respective geographical domain is performed by the PMSC, namely, deterrence and ward off attacks, providing risk assessment, advise on improvement of security of vessels practical advice, providing anti-piracy training for crew members and provision of armed or unarmed guards to protect / escort vessel. What also they can do is more interesting? Transportation of arms and ammunition unknown to everyone, some may provide services for the entire voyage and some for certain passage, some embark in territorial sea and continuous zone and disembark in the same manner, there is a possibility and I am sure investigations may reveal possibility of inappropriate disposal of weapons by contractors just before entering territorial sea and continuous zone. An operational danger on the security of coastal states, namely floating detachments is also an issue, these floating armouries are exploited for various aims, the example of Nigerian navy intercepting Russian security vessel with hundreds of rifles on board comes to mind.
Let us look at the home front. The famous Enrica Lexie incident which occurred on 5 February 2012, 20.5 nautical mile from the Indian baseline. We all know that the Enrica Lexie did not report firing incident apparently due to non-mandatory regulation. In this regard, it is important to note that the Ministry of Shipping Guidelines SR- 13020/6/2009-MG dated 29 Aug 2011 make it mandatory for all Indian and foreign commercial merchant vessels with armed guards and military weapons to obtain a pre- arrival notification for security (PANS) clearance prior to entrance and transit through the Indian Exclusive Economic Zone and Indian Search and Rescue Region (ISRR). This was an obvious example of lack of compliance with the coastal state regulations. The second case pertains to MV Seamen Guard Ohio, the Sierra Leone Flagged vessel, US private firm owned, private security patrol vessel which was detained on 12 Oct 2013 off Tuticorin within the Indian contiguous zone, carrying 35 automatic weapons and 5,700 rounds of ammunition. The Vessel in addition to PANS violation, did not have any authorisation from the flag state to carry out duties of armed escort. Furthermore, crew were without documentation and without the log of duties performed. As you may know, after 9 months Madras High Court set free the crew declaring it as unintentional and accidental act and not a criminal conspiracy.
These two isolated but I am sure there are dozens more serious than these two incidents show how vessels could easily violate coastal state regulations and how without inadequate documentation carry a large number of weapons with little or perhaps no oversight at all.
2008 attacks forced shipping companies and ship-owners to find ways to reduce risk, rapidly increase “exception’ insurance premium for routes in the Gulf of Aden and the Indian Ocean. PMSC was born and apparently no successful hijacking in 2013 and 2014 but I am sure all intelligence people can agree that ships and security companies through word of mouth spread that due to PMSC there have been no hijacking. The truth remains to be investigated.
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PMSC has indeed emerged as an organised industry. The most important reasons are, due to no ship with PMSC ever hijacked and the accrual of financial savings from hiring PMSC. Is PMSC the only solution? Navy too can perform the task as vessel protection detachments (VPDs) and as we know Italy and Japan provide military personnel on merchant ships, under government regulations. Let’s look at some facts and figures to put the legal and regulatory framework in a proper context. After all, we international lawyers do economic analysis of international law.
Estimates and reports suggest that Somali piracy used to cost 18 billion USD annually. In, 2008, 47 vessels were hijacked and 84 were reported incidents which decreased to 7 vessels and 32 incidents in 2012 respectively. 42,000 vessels transit through the Gulf of Aden, with a quarter with PMSC and cost per PMSC team is 50,000 US$ per transit. The market is booming. As per Stratfor, the cost for a typical four-man team on a normal 40- day rotation would be $56,000-64,000 plus whatever the security company needs to make a profit from the trip. Bypassing the Gulf of Aden, adding three thousand miles and from two to three weeks to voyages, incurring additional fuel costs of $3.5 million per year for tankers and $74.4 million per year for the liner trades. The nexus suggests that you can pay exorbitant insurance premiums which used to be 500 US$ in 2007 has sky rocketed to US$ 20,000 per ship/voyage, excluding injury, liability, and ransom coverage. But the industry is booming for businesses of UK and the Northern Europe – 630 companies taking almost the entire business. PMSC in these countries were earning more than pirate themselves perhaps. According to one estimate PMSC earn approximately 52 million US$ from 1500 escorted journeys per month.
Existing Legal and Regulatory Framework PMSC is largely and if not entirely unregulated industry. Neither UNCLOS provisions 100 to 107, nor the UN Security Council Resolution 1918 of 27 April 2010, nor the Guidelines of the International Maritime Organisation cover most critical aspects of regulation of this industry. As we know, UNCLOS and UN Resolutions provisions are mainly applicable for government and military and not for the PMSC.
In addition to above, there is a regional instrument for private security companies, the Montreaux document which provides a framework for PMSC, however, it has an important limitation – applicable only in case of recognised armed conflicts or internationally recognised war zones. Thus, for PMSC, it is inapplicable.
In the absence of hard-law, a framework of soft-law has emerged, mainly in form of PMSC industry-led regulations, codes of conduct and certification schemes, oversight and accountability to this industry. PMSC industry would certainly like and I fully agree with them that it is better to create controls by the industry itself instead of new government regulations to prevent the industry from bringing to a halt. Why I advocate because self-made regulations are less costly, more efficient meetings to discuss the issues, few procedures and almost no bureaucracy. This is an excellent way to provide guidelines, develop interests and build momentum to evaluate program effectiveness before rolling out a hard-law package. However, the disadvantage of soft law is that it
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does not require compliance by states or parties who do not want to change, which ironically are often the targets of the instrument.
As far as IMO is concerned, IMO MISC/Circ. 1130 dated 14 Dec 2004 provides for Guidance to masters, companies and duly authorised officers on the requirements relating to the submission of security related information prior to the entry of a ship into port, supplementing ISPS code, no mention of carrying weapons on board.
International Let us go into international law details: First, states have more extensive powers and obligations to prevent and repress piracy than PMSC do. Second, under customary international law and UNCLOS (treaty law), states have rights such as to interdict suspected pirate vessel, arrest and detain suspected pirates, confiscate weapons, ships and assets. UNCLOS provides for regulation of the activity on the high seas generally, rather than the carriage of weapons in particular. Instead, Article 94(1) of UNCLOS stipulates that each State must exercise jurisdiction and control over vessels flying its flag. Accordingly, it is up to each individual State to legislate on this matter. So the regulations governing the carriage of weapons are those laid down by the flag state, but a vessel must also comply with the law within the waters of each coastal state it enters. A state may therefore prohibit the carriage of any weapons into its territory, even though there is no contravention of the law of the ship’s flag state.
In this regard, the practice of some states is worth noting. As of February 2012, France, Spain (where a licence is also required), Saudi Arabia, Kenya and Brazil required prior notice that a ship was carrying weapons. Australia required registration with a number of government agencies. In South Africa all firearms must be registered, which in practice means that foreign vessels cannot bring guns into the country. It is important to note that two masters were arrested and charged under the South African Firearm Control Act in 2011. Although national requirements change, and this is far from being a comprehensive list, it does highlight the fact that the carriage of weapons on board merchant ships is not straight-forward. In fact, PMSC may hide weapons on board a ship which may create a potential legal problem for the Master and the ship’s owners.
Although increasingly flag-state allow PMSC on their vessels, not all. If it is prohibited, like in India, it is the duty of flag state to police and enforce the prohibition.
An important issue is the use of force which I will deal later but at this stage it is important to note that under the US law, warning shots can be fired, but not under the UK law. While referring to firing of the shots, a judgment by the International Tribunal for the Law of the Sea (Hamburg, Germany) in the Saiga case is very important. The Tribunal adjudicated that ‘a warning shot does not constitute a use of force’. ITLOS went on to pronounce that ‘the normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a
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last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered’.
While discussing international law provisions, the internal law of the IMO provides important directions. IMO in May 2011 approved interim guidance to ship-owners, ship operators and shipmasters on the use of private armed security personnel on ships. This guidance was revised and issued by the IMO as MS.1/Circ. 1405 on the 25 May 2012. Other guidance documents were also issued to flag states. The IMO did not endorse the use of armed guards. However, it observed that the absence of applicable regulation and industry self-regulation coupled with complex legal requirements governing the legitimate transport, carriage and use of firearms gives cause for concern. This situation is further complicated by the rapid growth in the number of private maritime security companies (PMSC) and doubts about the capabilities and maturity of some of these companies. The IMO added that, ‘the use of Privately Contracted Armed Security Personnel (PCASP) should not be considered as an alternative to Best Management Practices (BMP) and other protective measures. Placing armed guards on board as a means to secure and protect the ship and its crew should only be considered after a risk assessment has been carried out. It is also important to involve the Master in the decision making process. IMO guidelines stress the importance of undertaking a risk assessment and, if it is decided to use armed guards, to undertake a full evaluation before selected a supplier. IMO affirms that, ‘as the quality of the service delivery depends to a very great extent on the quality and experience of the individuals that make up the on-board PCASP team, the quality of the selection and vetting of that team is essential. PMSC should demonstrate that they have verifiable, written internal policies and procedures for determining suitability of their employees.’ The guidelines also deal with insurance issues, the licensing and control of firearms, the composition of the armed team, command and control issues, training, record-keeping and rules for the use of force. These guidelines represent a logical and sensible approach to the deployment of armed guards, although it will be a long time before all ship-owners follow them.
This interim guidance is not legally binding and is not in itself a set of certifiable standards. It does, however, provide minimum recommendations on the competencies and abilities a professional PMSC is expected to have.
One further needs to note that although IMO cannot issue binding regulations (a subject whether an IO except the Security Council can bind member states with obligations is a whole different issue), it has issued regulations guiding and advising flag states (IMO / MSC.1 / Circ. 1406), port and coastal states (IMO / MSC.1 / Circ.1408), ship-owners, shipmasters, and ship operators (MSC.1 / Circ.1405), and private maritime security companies (IMO / MSC.1 / Circ.1443) on best practices and reaffirming their oversight responsibilities in international law. IMO through these guidelines has urged port and coastal states to clarify their laws regarding embarkation, disembarkation and carriage of PCASP, their weapons, ammunition and other security-related equipment along with flag states to decide whether or not they will allow PCASP aboard their vessels, and if so under what conditions. India is yet to do. It shall do at the earliest.
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National Legal Regime Now let’s look at national law and practice. First of all during an important hearing in 2012, the UK House of Commons Foreign Affairs Committee noted that PMSC do not always meet professional standards as companies have varying standard of service and operation. As per UK laws, it is lawful to use force in self-defence or in the prevention of crime so long as the force used was necessary in the circumstances as individual believed them to be. Furthermore, use of lethal force to protect property is unlikely to be found to be reasonable to be jury. Following the piracy emergence, the UK issued Guidelines in 2011 for PMSC operating on UK-flagged ships: Lethal force can generally be used in the context of self-defences or defence of others. The decision to use lethal force must lie with the person using force where they believe there to be a risk to human life. Neither the master nor the security team leader can command a member of the security team against that person’s own judgment to use lethal force or not to use the lethal force. PMSC personnel must use the minimum force necessary to prevent the illegal boarding and protect lives of those on board; procedure should be graduated response each stage of which is considered to be reasonable and proportionate to the force used by the attackers. The Guidelines warn, though, that adherence to these rules would not in itself serve as a defence if criminal charges were brought, and that the applicable laws on self-defence ‘will depend on the court where charges are brought, which may depend on where the offence took place and/or where the victim (or possibly the alleged perpetrator) is from.
If we look at the US law, we can refer Resistance of pirates by merchant vessels, 33 US Code 383, which codifies the right to use of force to deter unlawful attacks on the US- owned vessel, vessels. The master or crew (which would include PMSC personnel) ‘of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof’ is authorized to ‘oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such a vessel’.
Furthermore, the US Coast Guard and Homeland Security Port Security jointly issued a Port Security Advisory in 2009 entitled Guidance on Self-defence and Defence of Others by U.S. Flagged Commercial Vessels Operating in High Risk Waters. The Guidance, which is provided for all personnel on board US-flagged vessels, including contracted security personnel, sets out the current United States rules for defence against piracy. Use of lethal force is permitted in self-defence or defence of others where there is reason to believe that there is an imminent danger of death or great bodily harm. Non-deadly use of force is permitted in self-defence or defence of others as well as in defence of the vessel and its cargo from theft or damage. In the latter regard, force used in defence of the vessel and its cargo can only be used on the authorization of the vessel’s master.
Although we deal with hard-core issues of PMSC and piracy, it is important to observe that the US Jones Act US Code 688 (2002) provides employees (read PMSC personnel) right to safe place to work. We need to be aware of this as this Act provides for relationship between employer and crew member on us-flag vessel, higher liability on employer which would be applicable for PMSC too.
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Issues
Legal Having analysed the existing international, inter-organisational and national framework, let me analyse few important legal issues which shall guide drafting of any guidelines and regulations and international and national cases.
First of all, the issue of enforcement and jurisdiction. Jurisdiction in cases where private navies use force incorrectly against pirates is another challenge. Many different nations are often involved in operating and protecting merchant ships, making it unclear which laws should be applied and respected by the parties involved. Second, we also know that there is no command structure over them, deter threats and operate in defensive capacity for the PMSC.
Apart from enforcement and jurisdictional issue, the human rights and humanitarian laws are having significant impact on the way the PMSC function and can be held liable. Fundamental HR laws are directly binding on PMSC. For example, what happens to human rights of suspected pirates, if their skiff drowns or they give up arms and surrender – not only human rights but also provisions of the Torture Convention too apply. Furthermore, As Douglas Guilfoyle notes, ‘there is nothing magical about the maritime environment’. If an individual injures or kills another with a licensed weapon, it does not generally invoke the responsibility of the state. This equally applies to the action of a licensed PMSC. With regard to PMSCs operating on vessels flagged by states parties to the 1950 European Convention on Human Rights, and in situations where lethal force has been used by PMSC personnel, the European Court of Human Rights has said that the deprivation of life must be subjected to the most careful scrutiny, taking into consideration not only the acts in question but also all of the surrounding circumstances. According to the European Court of Human Rights, the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State’s responsibility under the Convention. Any different conclusion would be at variance with the obligation contained in Article 1 of the Convention.
Use of Force is another most important legal issue. Regulation of and accountability for the PMSC forceful action is must. We all know that hostile and volatile environment against PMSC leading to use of excessive force, however, their accountability is not absolved at least in the existing legal framework, although one may have sympathy in such cases. While talking of sympathy, we must not lose a sight that case like Almezaan, March 2010 in which exchange of fire by the PMSC led to one suspected pirates wounded, fatal and the surviving suspected were captured by the EUNAVFOR but no investigation took place into the lethal force used by the PMSC. In another case, Avocet. Marshal-Islands flag state, in 2011, again PMSC using force for a skiff. The Trident Group PMSC amended that only team leaders can fire warning shots, International Maritime Bureau described as armed security team aboard fires warning shots…no investigations took place here as well.
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Let us look at the lawful use of force in self-defense that can be resorted by the PMSC. PMSC personnel are governed by national law (unless explicitly operate on state behalf) applicable laws would be flag-state vessel law, law of nationality and law of territorial state (if in territorial waters) involving the question of claim of multiple national jurisdiction. If PMSC use force beyond deemed lawful, they are liable to criminal prosecution.
Insurance Issues Although I am not really willing to discuss insurance aspect, it is important to observe few remarks. There a number of insurance issues which ship-owners need to concern themselves with. The first relates to insurance against damage, death or injury, caused by the armed guards and the second relates to compliance with the provisions of the insurance contracts which cover the vessel and its cargo. For example, Section 41 of the UK Marine Insurance Act 1906 implies into every contract of insurance a warranty that the voyage is lawful and that, so far as the assured can control the matter, the voyage will be carried out in a lawful manner. If the assured decides to undertake self-defence involving lethal weapons, this could amount to carrying out the voyage in an unlawful manner. For public policy reasons, a breach of the implied warranty of legality cannot be waived by underwriters. If the ship-owner’s self-defence measures are not lawful, then underwriters will be automatically discharged from liability under the policy from the breach onwards. As a further point, many contracts will contain provisions which will oblige owners to waive their right of recourse against the security company, should they have caused damage or loss to the vessel. In view of this, hull and war risks underwriters need to review and approve the ship’s insurance contract when armed guards are carried.
Challenges What are the challenges? First, government ability to prevent and repress risks at sea is becoming less and governments are coming up with such solutions, which also may mean they are unable to uniformly adhere to international law governing maritime laws. Second, PMSC is a self-regulated industry with no reporting accountability, choice of self defense methods in high seas, management setting its own standards and competitive forces outsmarting each other to rise to the top. Third, there are a range of questions, especially for coastal states that are weak and their seafarers go for fishing in deep waters. Can shots be fired across the bow of a suspected pirate vessel in warning? Can PMSC personnel even lawfully fire warning shots? Can they seek to immobilise the suspected pirate ship by firing into the engine block? If so, in what situation and at what point can such actions be taken? In the absence of clear regulations and case-law (only emerging in view of Ohio and Enrica Lexie), the situation may remain volatile. Can private armed guard on board an Indian flagged vessel sees an armed skiff approaching at high speed, can the guard open fire – government must provide clear direction on what is permissible, guidance to use lethal force cannot be left to PMSC.
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It is very important that the PMSC be protected by a clause that nothing in IPC requires a victim of pirate attack to await an aggressor’s first blow before acting in self-defence. Fourth, the extent to which national legislation allows weapons to be carried into the respective national territory (especially ports) or through territorial waters also differs. India does not allow private citizens to carry weapons, so this could be an important question. Fifth, UNCLOS allows a right of ‘innocent passage’ through territorial waters (Article 17), but the extent to which the carriage of weapons to be used in self-defence violates the constraints upon that right (as set out in Articles 19 and 21) is not clear. Sixth, different national jurisdictions require that either the weapons or the personnel carrying them, or both, be licensed under the law of the transiting state. There may also be import or export restrictions relating to the disembarkation of weapons in port.
Seventh, in March 2012, for instance, it was reported that PMSCs were storing their guns aboard floating armouries in international waters so ships that want armed guards for East Africa’s ‘pirate-infested waters’ could cut costs and circumvent national laws limiting the import and export of weapons. India does not allow such practice, and it is possible that some PMSC may not inform even the governments of the flag their ship is flying. Eighth, institutional legitimacy is also an issue. Availability of PMSC and violence and use of force used by them can enable states to engage in behaviours that is not supported by their citizens. The use of PMSC by corporations and few big corporations of the world – institutions which are lacking legitimacy, not backed by people nor democratically controlled – may only enable operations not supported by citizens to a great degree. PMSC would like to participate in rule-making process without attendant responsibility. Any regulation from an institutional and moral legitimacy point of view shall have accountability, transparency, professionalism and dignity included for PMSC. Ninth, PMSC may also engage in violence against each other under the absence of a clear authorisation by states. Last but not the least, PMSC like PSCs in Afghanistan, Iraq and other places will have to answer the question about their legal status and applicability of civil and military law or civilian vs military law, once the clarification is there, they can do enforcement activities.
While the PMSC is a welcome phenomenon for states, maritime trade among others, the PMSC themselves pose some threats to the effective maritime governance by existing international law. Some of these are, Illegal arms transhipment under the pretext of anti-piracy patrol; Disregard for proportionality law while dealing with suspected pirates leading to avoidable deaths. States with weak self-policing capabilities could find it difficult to prevent PMSC from using their waters illegally. Floating armouries to become gun for hire without submitting any explanation. Boats from vessels could be launched for nefarious activities too citing anti-piracy or training operations. Since no limitations on type of arms, even weapons from small arms and to shoulder launched missiles can be carried, thus could become a big illegal shipment business. PMSC will demand proper recognition in keeping ship, crew and cargo safe. On the whole, the security industry is populated by military, police and trained professionals who must meet the stringent concerns of shipping companies. But the potential for missteps, such as the murder of fishermen, is high and the ability to adjudicate or gather evidence in
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the event of a violent event gone wrong, is lower than land-based operations. This is a real concern.
Recommendations Where does the above discussion lead? First of all, states should have legislative and admin framework to regular PMSC activities and ensure accountability (questions may be whether personnel may be armed, under what circumstances, with which weapons, when and how those weapons may be lawfully used).
Second, India can use ISO Guidelines which are helpful.
ISO PAS 28007: Part 1 - Guidelines for Private Maritime security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships (and pro forma contract).
Part 2 - Guidelines for Private Maritime security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships- International Model Set of Maritime Rules for the Use of Force (RUF)- AKA- ‘The 100 Series Rules’. Third, India can take lead for the IMO Directives: to make more binding, difficult. Fourth, the existing ISPS code may be suitably modified for ships entering or leaving harbour with weapons / PMSC or having disembarked weapons / PMSC or who intend to embark weapons / PMSC should notify the port authorities prior to arrival / departure. Fifth, although India has guidelines on PN the Port notification data availability mainly ships data to be made online available and on port websites, accessibility of such data could be restricted to other ports and law enforcement agencies.
India may promulgate on-board regulations: regulations on the use of boats including carriage of weapons and PMSC could be promulgated, preferably under IMO framework; Weapons carried on board: no and calibre of weapons to be restricted; shoulder launched missiles and similar weapons to be excluded; No of private security guards: normally 6, but no upper limit, cap required.
Floating detachment regulations need strengthening to include regulations on floating detachments that carry a large cache of arms and / large no of security personnel on- board may be promulgated including kind of authorisations from the flag state and log documentation. Although immediate reporting of weapons use is in force, better enforcement through regulations are required so that any vessel carrying firing, against confirmed or suspected pirates or armed robbery, report immediately to Indian Search and Rescue Region.
Furthermore, mandatory notification on automatic identification system: any vessel carrying weapons shall display the details on Automatic Identification System. It is important to have oversight responsibility regulation: flag states or states of chartered ships shall provide regulations and mechanism which enable the coastal state to know the oversight mechanism.
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PANS review: PANS in its current form requires that carriage of weapons in the entire Indian EEZ and ISRR be reported. In the absence of resources and unless vessel is boarded or prior intelligence available, Indian Coast Guard or Navy can do little. The issue becomes critical when vessels are transiting. India might consider using navy for security as this could solve jurisdictional issue, but does our navy have enough ships small enough to aid big commercial ships.
IMO Secretary-General Sekimizu said on 16 May 2012 that the carriage of firearms on board merchant ships is a complex legal issue with Member States taking diverse positions. The Committee has determined that the carriage of armed personnel is a matter for flag States to authorize, however it has also accepted that their carriage has legal implications for coastal and port States, particularly with respect to the carriage, embarkation and disembarkation of firearms and security equipment in areas under the jurisdiction of such port or coastal states. Universal and uniform is the IMO spirit of regulation because vessels travel through all maritime zones under the jurisdiction of multiple countries, have crew from various countries, and therefore need to be held to relatively uniform standards. This is not a goal possible in current community of states regime.
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Industry Viewpoint
Capt Alok Kumar
Capt. Alok Kumar is founder and chairman of Alphard Maritime Group of companies with its head office in Mumbai and presence across India, London, Singapore, China, Dubai, Nigeria, Philippines and Sri Lanka.
Capt. Alok had set up Group’s UTG services division in 2009 and since then his company has serviced over 2000 vessels across the globe, extended to Hull Management, NDT, Dry Docking and Offshore among other agency services.
In 2012, when the world witnessed piracy attacks, Capt. Alok started PMSC services providing armed guards for protecting and maintaining peace on vessels in sea, the business today is engaged by ship management companies and charters worldwide for its world class service quality, compliance standards, approvals and classifications from all major bodies globally.
Mr. Roy Paul of MHPRP awarded Capt. Alok as ‘Seafarer Entrepreneur of the Year’ at 14th Sailor Today awards. This award was to recognize contribution of Capt. Alok and Alphard Maritime in making sea safer for all.
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eing a PMS company owner, we are in a position to give you a insight of this business, how PMSC operates, what is happening now and in which area, what is Bthe difficulty a PMSC faces because of different regulations and what can be done to safeguard national security in conservation with PMSC operations.
I will start with floating armory. It is normally an offshore vessel or smaller vessels where PMSC store their weapons, ammunitions, body armor, satellite phone and many other accessories. They also provide temporary accommodation to security guards who disembark from a ship and then re-embark on another ship. Nowadays each vessel has about 3 - 6 weapons depending upon owner’s requirement. For each weapon normally they carry about 120 - 250 ammunition, so if you have a team of 6, the vessels carries about 1500 ammunition. They also carry body armor, helmets etc which is not a threat.
Statistics of the floating armory
Figure 1 Floating Armouries (by Locations) Figure 2 Floating Armouries (by Compliance) How they are registered, where they are registered and how legal it is? Now you see that Djibouti government has given licenses to some floating armories, some floating armories have Sri Lanka flag, Panama flag, UAE, Mongolia and other flag of convenience. Out of these the Djibouti ones have some control on their floating armories and the floating armories of Sri Lanka also have some government control. As regards other floating armories, no inspection, nobody controls it and it is operated by private companies. Those companies are also offshore companies. They could not use their code of service for their platform so they use it here.
Conditions of most of these floating armories are not very good. Most of them are under flag of convenience. Floating armory operations in Sri Lanka grown from 200 in 2012 to 800 in 2014.
If we look at from PMSC’s perspective, the Indian Government has neither created any infrastructure nor made any arrangement for the weapons to be embarked, disembarked or even temporarily stored in any of the ports. So if a vessel is coming from East China going to Kandla, she does not know what cargo she is carrying next. For a ship owner if he comes to Kandla and his next voyage is to HRA then he will have to sail all the way to Sri Lanka and pick up the weapons or he goes to Fujairah, picks up the weapons there and crosses HRA. So for safety reasons what he will do is pick up the guards from Sri Lanka and goes back to Kandla. Although he does not need guards along the Indian coast but he has already given $25,000 to $30,000 to somebody
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because he cannot afford to sail from Kandla back to Sri Lanka just to pick up guards. So right now we will see about 10% of the vessels coming to this side just waste this money because shipping business is not certain, all the voyages after reaching India are not fixed and after discharging cargo, the commercial department is fixing cargo. Sometimes what happens is they pick up guard in Sri Lanka come to India, they can pick up one guard with weapons come to Indian west coast and if they get a voyage to HRA then they want to collect the other team in India. Now certain companies accept Indian guards and Indian guards can join in India. But if it is a foreign guard, the foreigner must come to India with X1 visa which is in the name of that vessel. Suppose vessel MDX is in Kandla and she is going to finish cargo in 2 days and she is going to Suez, how a PMSC can obtain visa in 2 days in the name of that vessel? It is not possible. So what the owner will do? Certain owners like Indian or Sri Lankan guards so they will pick up 4 guards in Sri Lanka come to India at the port and if the vessel does not go to East, they will drop them. But this costs 30,000 or so which is a waste for them. Luckily, if the vessel goes to HRA at least 50% of the cost is saved. Suppose if Indian Government had allowed temporary storage of weapons in at least 2-3 places something in North Gujarat and Tutikorin, any vessel which is coming from West can drop its weapons. Now normally all the ports are under the government so there is no private security company if they can temporarily store the weapons until the vessel sails, the next vessel which is here can pick up the weapons from here and go. That is an advantage to shipping in India.
We have no information on who is picking up guards, how many weapons are picked up. In case of weapons picked up in Sri Lanka, they have the entire data base. If we can create facility it is good for the intelligence agency in our country to know how many weapons are moving in this area, what is the nationality of a person handling these weapons? By making arrangement of having coast guard and navy on board, all the data of weapons available near the Indian coast will be available.
When market was good, 50,000 was being paid but today the price is 12000. Any vessel can tell you that it is not possible to give you quality service, but from the business point of view if others are doing it at $12000, we do it at $12000, otherwise we might have to close our business. You can do anything to remain in the market. You have a security guard society and when you can pay 6000 or 50000 for a guard, for 6000 you cannot expect a commando. You are paying peanuts, you will get monkeys. But who is affected? A vessel coming to the Indian cost with 6 weapons and 6 guards from any nationality from the neighboring country may be they are becoming cheaper than Indians. Indians are cheaper then the British. So guards are available from neighboring countries at 50% cost than the Indians. You have no data about who is sent to our ports, where he is trained. Their training will be zero. They are sending third grade guards in our ports with weapons. There is only a bonded sticker. The guy whenever he wants can pick up the weapon and fire. While tanker is being discharged they can fire. This is the threat we have today. As a PMSC I would suggest that Government of India must create infrastructure so that there is better control on movement of weapons on the Indian coast and EEZ. How this can be done, you can track the vessel weapons and personnel if you have the necessary. You can issue CDC with limitation to serve as PMSC guards only. If you issue CDC to army people, at least they will get some job. Only
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DG Shipping Master’s Office issues CDCs. Again they say we need national CDC which we cannot obtain. So loss of opportunity for Indian people. If we design a procedure by which floating armories can be operated or if we make a regulation that 2 guys from defense will be on board, the commercial operator can pay for the same. Policies for the floating armory, operating regulations for the floating armory, how you want to operate, what restrictions you want to put. The visa procedures for foreigners be reviewed if he is joining as seaman or guard. If somebody gets order on Friday and vessel is sailing on Sunday, nothing can be done. The port clearance procedures need revision. The arms license procedures can be modified suitably to suit working. I cannot get license for my Benelli in India or for Browning Bar Match on the ship. Persons having their own weapons are allowed to go on ships. We can train Indian personnel going on ships in the use of different weapons and practices. So if we have 10000 people with good weapons, they can also be used in emergency for national security. There are people who are trained free of cost and who are kept fit free of cost. The use of defense and navy people and they being kept ready at all times. This is third line of defense. If you are operating PMSC, you can authorize to bring certain arms and ammunition which can be kept under government control. Personnel from defense on the ships can control that. Courses of anti piracy and weapon handling can be conducted. Here we cannot use any other bore of guns than .22. You are training a guy on .22 and then giving him a Benelli, Browning and others to use. We pay $650 per day to hire a guard in Sri Lanka. Many guards are being trained in Sri Lanka every day. We also have so many firing ranges in India, which can be used for PMSC as well!
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Strategic Importance of 3rd Line of Defence
Rear Admiral S.M. Vadgaokar (Retd)
He specialized as an ASW pilot and flew extensively from small decks of ships. He is a qualified flying instructor with almost 4000 flying hours and over 500 deck landings by day and night. He commanded INAS 333, an ASW Kamov helicopter squadron based in Goa and the Naval Air Station in Mumbai. He Commanded an Offshore Patrol Vessel INS Saryu and two front line Missile Destroyers, Ranjit and Mumbai.
The Flag Officer has held important appointments both ashore and afloat. He was deputed to the Embassy of India in Tokyo as the Defence Attaché from 1997-2000 with concurrent accreditation to South Korea.
On attaining the Flag Rank in Jan 2006 he was appointed as the Flag Officer Goa Area and Flag Officer Naval Aviation (FONA). As the FONA, he was the class authority for Naval Aviation and exercised charge of aircraft ops, maintenance, flight safety, aircrew training and proficiency, Air Traffic Controls of the IN, as well as Naval Aviation projects and trials. He held the appointment of Assistant Chief of Naval Staff (Air) wherein he was responsible for the policies, procurement, operational capabilities, material management, training of Aviation personnel and their appointments, Air Traffic Control and all other matters pertaining to the entire Naval Aviation.
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iracy was there in the Year of the Lord. But the only difference was that when a pirate was caught he was hanged. There were no rules, no human right at that Ptime. The Piracy affected areas are shown in the picture and the threat to commercial vessels from maritime piracy has been well documented. Current areas are Port of Guinea and the Malacca Straits. As of Dec 2014, 231 instances of piracy and armed robbery have been reported to the IMB Piracy reporting Centre.
Due to limited naval security offered to Commercial vessels, PMSCs have stepped in to offer armed protection to individual ships or small convoys This Figure 3 Piracy : Current Status drop in military naval deployment, combined with spikes in attacks against commercial vessels over the last decade, caused shipping companies and other maritime industry stakeholders to seek alternative responses for securing global sea lines of communication and ensuring uninterrupted maritime supply chain resilience. The industry has turned to the services of Private Maritime Security Companies (PMSCs) to augment their security posture and protect assets in high risk areas. Privatization of security is a phenomenon of increasing importance in international security affairs, especially in the maritime sector. This is distinguished from the use of security contractors by the United States, Britain, and other nations in support of wars in Iraq and Afghanistan where private security companies were hired by sovereign governments and their operations took place within countries’ physical borders. Private Maritime Security Companies (PMSCs), in contrast, are being solicited by other private companies, namely shipping companies, to protect their assets in high-risk maritime zones, including and especially in Areas beyond National Jurisdiction (ABNJ.) Piracy has had a huge impact on Insurance as a single demand for a policy is not possible due to diversity as Loss of Hire, Kidnap and Ransom, Cargo, War Risk, Hull etc. In monetary terms losses for countries range from $1 Million to $230 Million per year and Indian Ocean incur losses of plus $1 Billion per annum. Annually 12% of World Trade passes through the Suez and is affected. Countries in IOR are affected to the tune of 60%. Private MSC guards attached to ships rending support close to Indian coasts present a unique apprehension to Coastal security. Incidents of MT Enrica Lexie and MV Seaman Guard Ohio are 2 bitter experiences. Increased activity of China is also susceptible and unwelcome in the IOR.
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High Risk Area Delimitation Restoration of HRA From 78° East back to 65° East
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Strategic Need for Restoration of HRA from 78° East back to 65° East
Commandant N.V. Ramarao Made MRCC Mumbai as the nodal MRCC for COSPAS SARSAT distress alerts in the INMCC (Indian Mission Control Centre).
Focal point of India on matters relating to real-time anti-piracy ops in collaboration with ReCAAP, IMB-KL, MSCHOA, UKMTO, EUNAVFOR.
Coordinated Rescue of over 1108 lives in 385 missions in four years in ISRR West (spanning an area of 2.6 million km2) and adjoining waters. Analysed and identified the fleeing merchant vessel, MT Enrica Lexie.
Instrumental in setting up a Maritime Domain Awareness (MDA) at MRCC Mumbai by harmonising AIS feeds from US Government Department of Transportation’s Maritime Safety and Security Information System (MSSIS), local AIS terminal and the Satellite based AIS feed from ISSDC, ISRO. Represented India at INDO-US Cooperation "Safeguarding Prosperity in the Indian Ocean" organised by Asia-Pacific Centre for Security Studies, Observer Research Foundation at Mumbai, India. Conducted Indo-Sri Lankan-Maldives Trilateral SAR training under the aegis of Ministry of External Affairs at Mumbai.
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his is a global distribution of the Maritime Rescue Coordination Centre. Most of the masters and ex masters are aware that there is no sea area in the world that T is not coordinated by MRCC in the world. Some MRCC or other is coordinating search and rescue across the globe.
The Search and Rescue Regions are promulgated by IMO. The delineation’s follow as far as practical the Flight Information Regions (FIR) and the ability of a nation to coordinate SAR in that region based on the resources available to it.
We have about 1 Lack merchant ships and about 160,000 fishing Figure 4 GLOBAL DISTRIBUTION – MRCC boats with 250,000 fishermen put to sea every day. We have search and rescue region of about 6 Million Km2.
The Indian SRR admeasures an area of about 6.1 million Km2. As seen on the screen, it extends right from longitude 60°E in the Arabian Sea to longitude 97°E in the Bay of Bengal down to latitude 6°S in the Indian Ocean.
In certain region we do not have any law but we are signatory to a SAR 79 convention where we have ratified that convention and the Ministry of Shipping has notified the coast guard and accordingly 3 MRCC have been set up at Mumbai, Chennai and Port Blair to receive various distress calls on the Global Maritime Distress and Safety System (GMDS) and we have the chain of maritime sub centers to co-ordinate in our rescue region.
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Search & Rescue Infrastructure We have radio sub system to receive the maritime distress frequencies. In the old days it was 500 KHz and it is not anymore and with the advent of the GMDSS we have various frequencies in each band, which are monitored, and how is that connected with piracy? The merchant master at sea uses the same distress method to send the piracy call to land based authority, i.e., MRCC.
Then thereafter the Governments have come out with The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP). The Indian Coast Guard is the focal point, i.e., MRCC Chennai is the focal point to implement measures in the ReCAAP.
There were incidents in 2010 when attempts have taken place close to our waters. These are not in our waters but close to our waters. This is beyond our EEZ. Thereafter joint war council was held and HRA was shifted from 54° to 78° in 2010. Now after that they implemented BMP4. In 2011 there were some incidents which took place in our waters and again in 2011 there were incidents off the Somali coast. This was the last incident which took place in the Indo Maldivian waters and MV Eglantine was the last vessel and during this time there was a talk amongst the western countries that we will shift the HRA. There was a talk of shifting the HRA because by this time India had taken across various forums for the shifting of HRA. Things went on and the MV Eglantine was hijacked from the Indo-Maldivian waters and taken towards Somalia. Iranian Navy came all the way from Iran and intercepted this vessel before it was hijacked fully. The entire west coast of India is a very good fishing ground so you have about 75000 fishing vessels operating. These are the various difficulties. The master is entering the area and you are telling him there are various nets put up by the fishermen like trawling etc and when they see a ship they try to safeguard the vessel and because of HRA coast to coast.
There are some incidents including in infamous MT Enrica Lexie incident. Incident report as per the IMO circular 133 and 134, Master has to inform by the fastest means of communication to the coastal state that is RCC or MRCC. In the MT Enrica Lexie case, he never informed. He informed to UKMTU. It is on record then thereafter we got report when the fishermen started coming in the mobile range and from the Police Station. Because of good frame work and coastal security in India post 2011, within 5 to 10
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minutes information came to our MRSC, Cochin. In another 10 minutes it came to MRCC and that is the time we saw the closest ship and the first ship we contacted was MT Enrica Lexie and we asked the master ‘did you fire on any pirates?’ He said he fired. We told him he should have sent instant report. He said he sent the instant report. I said please forward it and he forwarded it. I said please come to Cochin, we want to investigate further and he came and he never went back. There are some incidents of mistaken identify which have taken place post MT Enrica Lexie. What happens in piracy is robbery and petty is reported as piracy. Most of the time the masters fail to communicate in real time to the centers on the coast due to fear of being detained, commercial reasons etc. Because as per our laws unless the master registers a complaint with the local police station, the incident cannot be investigated further.
The victim ship has to report to the coastal authorities which never happens. The ship leaves and then the incident is reported to the CSO and thereafter the CSO makes instant report to IMBKL and IMBKL by the time they go to investigate, the ship has already out in most of the cases. In most of the cases, the victim ship never reports the case. The coastal states have to make a report to IMO. Unless we get the reports in time, the maritime administrator cannot write to IMO about the brief facts. If the incidents are reported in real time, we can investigate. We have about 2-3 patrolling boats with the coast guard at any given time. There are 3-4 ships out at sea. If the master reports to us in real time, we can divert at-sea ship to that place. As per BMP4, master should take photographs and send it to us. We can correlate the photographs and advise the master that these are fishing boats or these are not fishing boats. One master reported he found AK 47. I asked the master what binocular he is using to identify the weapon from 2 n.miles as the distance is about 4 kms and nobody can see with the naked eye. There was one suspicious incident investigated in the Indo-Maldivian waters – Sea Pioneer. He said it is a mother craft of pirates. Coast guard was launched for investigation. On investigation, we found that it was a Maldives fishing craft. Thereafter we photographed and informed that it is Sea Pioneer and this is what you have seen.
In 2010-2011, Piracy got shifted from Somalia to West Coast of Africa and Strait of Malacca. There are no pirates in our waters. No incidents of piracy in Lakshadeep in 2012. Only a few cases of mistaken identity are reported.
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Due to the complex maritime scenario post HRA the entire traffic shifted coast to coast. The normal routes are of Hormuz and the Suez routes.
Now the ships have started moving directly. Why has this happened because they are more confident! Probably, because they are taking in guards. Last 2 years we have seen a trend of them going directly. Post MT Enrica Lexie, we brought MS Notice 7 with the DG Shipping. We brought in our special ReCAAP report for fishing activities at sea near our area. Then we put a web page about fishing in the Indian waters on NATO website. You have to build awareness to the merchant ships. We have been putting all our real time data through our administrators to the people who go out to challenge India for delimitation.
Figure 5 AIS-SB DATA PLOT – 10 JUL 15
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HRA - Commercial Aspect
Shri Subba Rao
Subba Rao graduated from Marine Engineering College, Kolkata, and spent ten years at sea, rising to the position of Chief Engineer on merchant ships. He completed his MBA from The Open University Business School, Milton Keynes, UK in 2000, and is an alumnus of IIM Ahmedabad Senior Leaders program.
He is currently placed with the Chennai based multinational conglomerate, “The Sanmar Group” and heads its Shipping Business as its Deputy Managing Director.
He is a Fellow of The Institute of Marine Engineers (India) and its incumbent President. He is also a Director on the Board of INSA (Indian National Shipowners' Association), and is on the CII National Committee for Shipping. He is also on the Advisory Committee of IRS, on the Technical Committees of Lloyd's Register & RINA, and a Managing Committee Member of Madras Management Association.
His maiden venture, a small work, titled "Spring Forest" was published recently by Sampark Publications, Kolkata and was inaugurated at the Kolkata and New Delhi World Book Fairs in February 2014.
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he issue now is 78° to 65° east. There is additional premium for ships which are not Indian flag. Indian flag ships do not pay additional premium. The entire T gamut of discussion has come about regarding pirates, security guards, NATO related goods transit and the various goods convoys. Now, kidnapping and ransom insurance which was at $25000 to $30000 per transit has come down to $3500. Also the armed guards cost has subsequently came down. Because threat perception has dropped. But I would say that if a ship was to cross the Suez Canal it would not make a difference whether 78° to 65°.
There is a discussion all around on for the benefit of the stake holders. In India we need to see the big picture. On one hand we have the crew who needs protection and on the other we have to cut costs. The cost would have been lower if it was area 65° east. If I am to offer a solution today what the ships do, you leave Arabian Gulf and come little up hit the Indian coast and go down up-to Colombo and sail out. You do not need to pay premium for 12 miles of Indian coast. You do not need any guards as it is comparative safe in the Indian coast. The practical difficulty which the masters face are if at night you were to ask a master to fix targets, many small, small ships are there, some ships do not have any lights as well. It is very difficult to navigate in these conditions. It is very difficult for Master to hug the Indian coast and keep going; because the fishermen are upto 50 miles in the sea. Now it is at this time there should be some security because especially if it is a foreign ship, the master would think what kind of boat is ahead. It is very difficult for him to assess whether it is a small fishing vessel or a pirate boat coming in. Once the pirates board the ship, situation becomes difficult; you can pick pirates off before he boards the ship. So perhaps, we must look into the cost of the security and may be shift the line adequately enough to provide property guidance to the master so that they can take proper route and when they are in the local seas they are safe. It is difficult so we can look at that as a conceptual thing and propose to shift line from 78° to 65° forthright.
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Regulator View & Current Scenario
Captain Harish Khatri
Capt. Harish Khatri joined the merchant navy as cadet in 1975 and sailed for over 22 years, of which he has been in command for 8 years on varied type of ships, including LPG tankers, oil tankers, container ships and multi-purpose ships. He has the distinction of being the first Master of India's first LPG tanker. Capt. Khatri holds Extra master Certificate of Competency and PG Diploma in HRD.
Capt. Khatri joined the Directorate General of Shipping in 1997 as Nautical Surveyor and continues to be in service of the DGS till date. During his service, he has represented India in several national and international forum such as IMO, ILO, CGPCS (under the aegis of UN) etc. He also has the distinction of setting up the new MMD office at Noida.
At present, Capt Khatri holds the charge of being the nodal person for all maritime security matters including piracy and is also in-charge of shipping casualties section.
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GPCS (Contact Group on Piracy of the Coast of Somalia) meeting has concluded just two days back in New York. We have been talking about this issue of HRA Cever since 2011 and as Commandant N.V. Ramarao (Indian Coast Guard) very correctly said that in 2012 when the last vessel MV Eglantine, which was almost 450 miles from Somalia and almost equally from the Indian coast. That happened when we were at the plenary session of the CGPCS in NY. We were making a very forceful intervention that this is not correct and there is even no piracy attack. The chair at the CGPCS on the sideline showed us the message that such thing had happened. There was positive intervention from the Iranians and the vessel was though hijacked could not be taken to Somalia. Since then we have had many meetings, we forced the authors of the BMP to several meetings. Most recent one was held in Brussels in February and that meeting was called in Brussels because the CGPCS chair is EU. That meeting was called at India’s intervention, a very forceful intervention by the Ministry of External Affairs. In that we also had a very important contribution from Egypt because it is not only India that is saying redraw the HRA from 78° to 65° but there are also other countries affected. Egypt had questioned the logic of including red sea in the HRA. We also had Oman saying that Oman Sea cannot be HRA. So there were many issues and in the Brussels meeting. 20 countries supported India’s view including Pakistan. But EU chair asked CGPCS in New York to take the decision. The last CGPCS (in Brussels Meeting) was asked to do threat assessment of piracy risk in that area and that assessment was to be taken as a key to take a decision whether to redraw or not to redraw. We questioned that when you actually expanded the HRA, what threat assessment did you do that time? There were no answers coming. It was more of political decision, not based definitely not on realities on the ground. There are definitely vested interests; there were people who wanted to keep this area as volatile and risky. So it took us long time, lots of efforts were made by Ministry of Shipping, Ministry of Defense, DG Shipping, lots of efforts, lots of lobbying with countries finally which has resulted into this process being renewed. In the 95th session of Maritime Safety Committee of IMO, concluded on 9th June, 2015 this issue was raised. Egypt raised this issue through a paper and India also intervened. IMO said though we are not the authors of the BPM but since the BMP has been endorsed by IMO through various circulars therefore IMO would advise the authors of the BMP to consider this aspect. So that was reflected in the 95th Maritime Safety Committee reports, in June 2015. India took it up very forcefully in the IMO Council Meeting where the Indian delegation was led by Additional Secretary Dr. Alok Srivastava. He made extremely forceful intervention. As result there is a paragraph included in IMO report highlighting the concerns of India; clearly stating that within three months time HRA has to be redrawn taking into consideration the IMO narrative that ‘area where the piracy attacks are not taken place but where the preventive measures are required and also the concerns of India, Egypt and Oman have to be taken into account. Within three months BMP had been directed by the CGPCS plenary to redefine HRA.
So this has been achieved due to the combined efforts of the Government of India including the industry. Industry has been giving us lot of information and in particular some information on the insurance part and 20000 ships that call Indian ports every year and there has been a very significant contribution of the industry in this entire fight. The additional war risk paid for these ships stood at $540 million per annum in
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2010, which actually reduced in 2013 to $239 million. JWC, a committee which decides on the insurance issue also is saying that piracy has abated. This issue has been highlighted in various meetings and about 20 countries us in the recent meeting.
There are some other issues which were mentioned in the last session. One suggestion was that CDC should be given to army people. CDC is an identity document and it is not more than that and it is basically given to seafarers. Would giving CDC solve all problems? Everybody who wears olive green uniform be given CDC from the master’s office that is another one? Then the second part was regulating floating armories. I remember that under the aegis of our nautical officer we wrote a paper to IMO for regulation of floating armories especially when the case of MV Seaman Guard Ohio happened and this paper was very widely discussed in IMO in the 93rd session. But it did not find favor with the floor, not many people supported; everybody said it is a good idea. But question remained – how and why it has to be done? But my personal view if that in this last session in June Marshal Island proposed exactly the same cut and paste paper and that paper found support. It is evident that there are sufficient lobbies to have anything moving in the highly bureaucratic system and vested interest systems like UN bodies, you need lot of concerted lobbying and forceful continuity, which we lack. But now the though regarding floating armories is clear and it is now work in progress of the IMO itself.
I think India can only do effort in this subject through international participation that is participation in BMPs, participating in IMO sessions, CGPCS where these issues are discussed.
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