Bay of Bengal: Fighting against trans-national maritime crimes

Maritime security in the 21st century poses new challenges and needs more strategic mechanism to face these. Much importance has been given to internal and regional security by combating land-based trans-national crimes and terrorist activities. But maritime security remains less secure in spite of having national maritime security agencies (Coast Guard or Navy) due either to financial or technological constraints or legal limitations to combat trans-national maritime crimes.
Bangladesh has gained huge but unexplored maritime boundary, not protected enough to ensure maritime security. Trans-national maritime crimes pose great threats for common interests and regional security of the littoral states of the Bay of Bengal (BoB). The United Nations Convention on the Law of the Sea, (UNCLOS) 1982 has urged signatory states to cooperate in battling some trans-national maritime crimes referred to as Piracy (maritime robbery), transport of slaves, and illicit traffic in narcotic drugs or psychotropic substances. Besides these, maritime crimes of trans-national nature that take place in the Bay include illegal fishing by intrusion, human trafficking, hijacking, terrorism and arms trafficking.
Not much time has passed since the BBC online reported the heart-rending story of 171 Bangladeshi men in Thai jungle camps. These Bangladeshis are victims of organised slave trade. In the name of giving them jobs, they were trafficked to be sold later as slaves. Bangladeshi workers seeking work in the South-East Asian countries like Malaysia, Thailand and Singapore fell victim to slave trade and human trafficking. The Bay of Bengal and other adjacent rivers are the common routes of such crimes.
According to Suritec Piracy Report, August 2014, three hot spots related to incidents of piracy and robbery of ships, were emerging. These are the South China Sea, Gulf of Guinea and the Bay of Bengal.  A timeline analysis revealed that number of piracy incidents and armed robbery of vessels that took place in the Bay of Bengal is 23, in Straits of Malacca/Singapore 10 and Malaysia 14.  
ReCAAP reported that a total of 73 incidents of piracy and armed robbery against ships were reported in Asia during January-June period, 2014. Of these incidents, 18 were piracy incidents and 55 were armed robberies on ships. Of the 18 piracy incidents reported during January-June period, 15 occurred in the South China Sea (SCS), two in the Bay and one abortive incident in the Indian Ocean.
According to the Cox's Bazar District Fishing Trawler Owners Association (DFTOA), during the last five years, pirates killed at least 411 fishermen and wounded at least 1,000 more. Every month, millions of Yaba tablets, a sex stimulant, are seized in Bangladesh. The United Nations Office on Drugs and Crimes (UNDOC) reported that Burma (Myanmar) and Afghanistan are the two major sites of illicit drug production. The smugglers are using the Bay and its adjacent rivers as a route for transporting Yaba and other narcotic drugs from Myanmar to Bangladesh.
There are threats to life and property on board the ships, human health, national peace and security and for sea-borne trade. It is important to note that Chittagong port is the most important maritime hub of Bangladesh and handles nearly 90 per cent of its trade. Marine fisheries contribute 5.0 per cent of our GDP (gross domestic product) . One of the most important preconditions of blue economy and blue growth is ensuring maritime security. Trans-national maritime crimes are to be battled in line with China's Maritime Silk Road (MSR) plan. Developing countries are unable to take adequate steps against various trans-national maritime crimes mainly for inadequacies in the provisions of international law (UNCLOS; 1982) and financial and technological constraints in trying to manage huge maritime zones that countries inherited under the provisions of UNCLOS, 1982.
Though UNCLOS 1982 is unambiguous regarding the rights and obligations of the littoral states, it has some grey areas on the question of enforcement. According to article 33 of UNCLOS, the littoral states may exercise control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea and award punishment for their infringement. Article 73 of this convention says, the coastal states may, in exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with laws and regulations adopted by it in conformity with this Convention.
Articles 87 and 88 of UNCLOS have ensured freedom of high seas and reservation of the high seas for peaceful purposes for all countries, littoral or land-locked. Article 86 defines the high seas as 'the maritime zone not included in the EEZ'. Article 86 bars the application of provisions of high seas to exclusive economic zones in the territorial sea or in the internal waters of states. This provision confers littoral states' exclusive rights on territorial sea, exclusive economic zone and continental shelf, but it poses problems when we deal with the question of trans-national maritime crimes, particularly piracy, armed robbery, slave trade, illicit traffic in narcotic drugs or psychotropic substances.
Two main legal enforcement mechanisms under UNCLOS for combating such trans-national maritime crimes are the right to visit (article 110) and of hot pursuit (article 111). The right to visit under article 110 enables any state to visit i.e. check and if needed take necessary action against any ship suspected of engaging in piracy, slave trade and unauthorised broadcasting. On the other hand, the right of hot pursuit allows a warship or a military aircraft of a state to pursue a foreign ship which has violated that country's laws within its internal waters or territorial sea and to arrest it on the high seas. Pursuit must be hot and continuous: and the right of hot pursuit ends when the ships being pursued enter the territorial sea of its own or a third state. Because, continuing it therein would amount to violation of the sovereignty of the other state.
This legal constraint doesn't permit other Navies or Coast Guards to indulge in hot pursuit of pirates into each other's water in booking the criminals. Thus, the right of hot pursuit implicitly does not apply universally. To get rid of such baffling legal constraints of UNCLOS, 1982, the first solution is to have bilateral or regional mechanisms.
Convention for suppression of unlawful acts against the safety of marine navigation, was adopted in 1988 to develop international co-operation among states in devising and adopting effective and practical measures for prevention of all unlawful acts against safety of maritime navigation and prosecution and punishment of their perpetrators. None of the countries, such as Bangladesh, India, and Myanmar has signed this convention. As a result, these countries have failed to ensure regional cooperation in matters of preventing unlawful acts against safety of maritime navigation in pursuant of UNCLOS, 1982.
The Security Council has called upon 'all states to criminalise piracy under domestic law'. But the littoral states of the Bay of Bengal have failed to do so.  Updating national legislations of the littoral states of the BoB is important to facilitate successful prosecution, provide basis for international cooperation and meet international obligations for fighting trans-national maritime crimes. Regional co-operation requires information sharing, mutual legal assistance, extradition, co-operation in enforcement and ad-hoc cooperation arrangement.
The third US-Bangladesh security dialogue was held at the Bangladesh Institute of International and Strategic Studies (BIISS) in April last. In this dialogue, the US expressed its willingness to cooperate with Bangladesh in ensuring maritime security in the Bay of Bengal. This cooperation can enhance technological capabilities of the Bangladesh Navy or Coast Guard. Trans-national maritime crimes are spread over the whole of Asia, that is, South Asia to South East Asia. Regional cooperation for combating these crimes should be built up among the littoral states of these regions. In this regard, a wider Bay of Bengal Community should be formed by inviting Malaysia, Singapore, Indonesia and China to join with all littoral states of the BoB region. This will enhance cooperation to develop and enforce mechanisms more effectively to fight against transnational maritime crimes, particularly slave trade, human trafficking, piracy and illicit drug trafficking.

Dr Kamal Uddin Bhuiyan is Professor and Head, and Md. Jahangir Alam, Lecturer at the Department of Law, World University of Bangladesh.
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