Pathfinder Foundation considers proposals for maintenance of security in Indian Ocean

The inaugural task of the Centre for the Law of the Sea of the Pathfinder Foundation (PF), established January 2018, was to unveil a draft of a ‘Code of Conduct’ (CoC) to be observed in the Indian Ocean. The CoC was limited in scope to the extent it was intended to address issues relating to non-state actors.  While some observers welcomed the maiden attempt of the Centre, it also caused some disquiet in certain quarters. 

As half a year has gone by since the draft was made public and comments were invited, this may be a good time to take stock of the situation. It is no secret that recent developments in the Indian Ocean region have taken some countries within and outside the Indian Ocean region by surprise. 

Those who were of the view that in the 21st century, the Indian Ocean requires more attention than before, saw merits in the effort made by a Sri Lankan think-tank commendable. Some commentators expressed the view that the strategic location of the island, the good relations maintained by the country with others big and small, and the role Colombo played in shaping the UN Convention on the Law of the Sea nearly four decades ago, were good enough reasons for Sri Lanka to take an initiative on this new venture. 

While some observers asked for the rationale behind the terminology i.e. ‘Code of Conduct’, others wondered why a think-tank in Sri Lanka, took it upon itself to come up with a draft of a CoC? Meanwhile, some others seem to conclude that the draft was submitted at the behest of the administration in Colombo. In fact, all these comments are justifiable. 

Regarding the rationale behind the name, it may be pointed out that there are two Codes of Conduct to which countries in East and West Africa had become parties, and those instruments were signed under the aegis of the International Maritime Organization (IMO), an affiliated organisation to the United Nations. In fact, what is more important than the name is the substance and purpose behind proposal. However, to surmise that the draft was an effort to back the administration in Colombo is an attempt to stretch the truth. 

In reply to these responses, PF has made it known that the purpose of the draft was to provoke a discussion, taking in to consideration recently expressed interest on the Indian Ocean. Further, PF has clarified that the terminology used i.e. ‘Code of Conduct’ has been employed by  the IMO in respect of two regions, one covering the Western Indian Ocean and the Gulf of Aden (2009 Djibouti Code of Conduct and the Jeddah Amendment of 2017) signed by 21 States, and the other, covering Central and West Africa (Yaoundé Code of Conduct) signed by 22 States, aimed at preventing piracy, armed robbery against ships and illicit maritime activity, while of course observing that no discernible progress has been observed in the case of the proposed CoC covering the volatile South China Sea. 

Another important factor is, the PF draft was intended to cover limited ground, targeting not states, but non-state actors. The Jeddah amendment to the Djibouti CoC is important, as it broadened the scope of the original agreement signed in 2009 to cover other illicit maritime activities, including human trafficking and illegal, unreported and unregulated (IUU) fishing.

Sri Lanka’s interest

It is not at all difficult to explain Sri Lanka’s interest in the subject matter. In the first instance, Sri Lanka is an island state surrounded by sea, thereby making the ocean the lifeline of the country. 

Sri Lanka’s interest in the Indian Ocean is not new. Its strategic location straddling the Indian Ocean and proximity to the vital sea lanes of communication, require no elaboration. Almost half a century ago, when the cold war was at its peak, Colombo took deep interest in making the Indian Ocean free of Great Power rivalry.

 

That exercise was supported by India and the non-aligned countries, many of whom had suffered under colonial yoke for centuries. True, that exercise failed to bear desired results. Yet, the resolution adopted by the UN General Assembly in 1971 helped bring dangers of the Great Power rivalry to the fore.

It is a fact that threats to freedom of navigation around the Horn of Africa have considerably subsided.  Yet, there is no guarantee that today’s situation would remain unchanged around the Horn of Africa or elsewhere in the Indian Ocean. 

On the other hand, although threat from piracy, drug smuggling and people trafficking in the Indian Ocean may appear to have receded,  the ever present prospect of their re-emergence in a world of continuing inequality and resentments, as well as the persistent scourge of illegal and unregulated fishing, make it desirable to ensure that international co-operation in the region as well as national and legal frameworks and procedures for dealing with multiple legal enforcement problems involved, are in place and in readiness to be deployed. 

True, President Sirisena when addressing the 2017 summit conference of the Indian Ocean Rim Association (IORA) called on Member States to “work out a stable legal framework to deal with drug smuggling by sea” and similar criminal activity, while maintaining principles of freedom of navigation. 

Likewise, Prime Minister Wickremesinghe, in a speech at Deakin University in Australia in February 2017, alluded to possible geopolitical rivalries and suggested the need for a ‘Code of Conduct’ to ensure freedom of navigation in the Indian Ocean, adding that any such code should also deal with the possible escalation in human trafficking and drug smuggling, as well as what he referred to as the “relatively new phenomenon of maritime terrorism”. He echoed his views yet again at the Second Indian Ocean Conference held in Colombo in September 2017. 

Meanwhile, Indian External Affairs Minister Swaraj speaking at the Colombo conference said: “The Indian Ocean is prone to non-traditional security threats like piracy, smuggling, maritime terrorism, illegal fishing, and trafficking of humans and narcotics” and referred to the role played by non-state actors in these activities. To combat such activities, she emphasised the need to “develop a security architecture that strengthens the culture of cooperation and collective action”. 

Speaking on terrorism, it is a widely-known fact that Sri Lanka bore the brunt of terrorism inflicted by non-state actors for several decades. That threat was directed by ‘Sea Tigers’ of the Liberation Tigers of the Tamil Eelam (LTTE), who engaged in weapon smuggling, hijacking and sinking of merchant ships that were carrying relief supplies to the beleaguered civilians trapped in the north of the country, and generally threatening unimpeded movement of vessels. And from where did the LTTE vessels that performed the function of floating armouries and constantly replenished the organisation with arms, ammunition, explosives and even aircraft in knocked-down condition, but from the deep recesses in the Indian Ocean? 

The draft ‘Code of Conduct’ 

The draft ‘Code of Conduct’ by PF was an attempt to “work out a stable legal framework” to deal with the kind of criminal activity referred to by President Sirisena, Prime Minister Wickremesinghe and Indian External Affairs Minister Swaraj, following collaborative constructions and terminology that had been adopted elsewhere in designing the kind of ‘stable legal framework’ for combatting criminal activity. 

There was no clear precedent to be followed to ensure the peaceful character of merchant and naval vessels traversing the Indian Ocean, in contrast to existing models for dealing with criminal activity by non-state entities and vessels subject to flag State control.

The other option would have been to engage in a study of obligations under the UN Convention on the Law of the Sea, intergovernmental agreements on safety at sea negotiated under the auspices of the IMO, regional and bilateral treaties dealing with inter-state activities and judgements of courts and tribunals accepted by States in the region as binding upon them. 

Taking into consideration complexity of such a task, which was beyond the capability of the nascent Center for Law of the Sea of PF, it was decided, to first study views expressed on the subject and offer a checklist of a state’s preventive and enforcement measures, for the control of non-state entities, and thus its readiness to meet future challenges in dealing with the criminal activity of non-state actors in the Indian Ocean.

Pathfinder Foundation is a non-profit and non-partisan organisation. It constantly seeks to   identify issues that are worthy of study and deliberation in the interest of public. Indian Ocean security is a subject that should receive due consideration of the coastal states and maritime users of the Indian Ocean. It is they who should decide on the nature of security arrangement they wish to adopt, decide on the extent of the arrangement and take steps to implement it through appropriate international organisations.