November 26, 2018 will mark the 10thanniversary of the Mumbai attack when ten terrorists from Pakistan landed on the shores of Mumbai and carried out a coordinated attack killing 166 persons and injuring scores. The attack had not only made India aware of the enormity of threats from the sea but also propelled the Government to undertake a series of measures to overhaul the coastal security of the country. While implementation of these security measures over the years has improved the security of the country’s coasts, but possibility of an attack from the sea continues to remain a clear and present danger. Presently, India’s coasts face threats that are primarily sub-conventional in nature. Terrorist attacks causing extensive damage to life and property is one of the most potent of these threats. These terror attacks can take place in various forms. For example, like in Mumbai terrorists can sneak into the Indian waters in the guise of fishermen and carry out attacks on coastal cities and also on strategic installations located along the coast.
The episode of failed hijacking of the Pakistani naval ships by terrorists indicates that radicalised elements of the state forces can be commandeered by terrorist groups to launch attacks on ports and ships.1 On September 6, 2014 the operatives of the al-Qaeda in the Subcontinent (AQIS), an outfit of the al-Qaeda tried to capture two Pakistani naval ships, PNS Zulfiqar and PNS Aslat, from the naval dockyard with an intention to attack the US oil tanker, USS Supply, as well as the frigates which were guarding it. In a communiqué, the group claimed that the attack was carried out by Pakistani serving naval officers and not by intruders as projected by the Pakistani authorities.2 Other scenarios could involve terrorists ramming an explosive laden boat against an oil tanker or a port thereby causing extensive oil spills and blocking navigational channels as it happened with an oil tanker, M V Limburg, off the Yemeni coast in 2002.3 Terrorists can also target vital installation using rockets and missiles from sea based platforms. Any such attack would not only cause enormous loss of men and material but can also potentially cripple the country’s economy.
While the world since long has been witnessing various forms of maritime terrorism perpetrated by various rebel and terrorist groups such as the Palestinian, Sri Lankan Tamil, Filipino and Irish insurgents as well as al-Qaeda and Lashkar-e-Toiba (LeT), the RAND terrorism database reveal that sea borne attacks have constituted only two per cent of all international terrorist related incidents over the last 30 years.4 Experts believe that terrorist groups have not been able to fully exploit the maritime domain primarily because – a) operating at sea requires specialised training, skills and assets, b) the high cost and unpredictable nature of the domain constrain cash strapped terrorist groups from undertaking maritime operations, and c) the mobile and relatively ‘out of sight’ nature of the maritime targets, which fail to elicit the kind of publicity usually desired by terrorist groups.5
Despite these considerations, concerns about sea borne terrorist attacks have heightened the world over in the past two decades, given a modest yet evident increase in high-profile terrorist attacks and plots at sea. These incidents have galvanised fears that terrorists, especially militants connected with the international jihadist network, are moving to decisively extend operational mandates beyond purely territorially bounded theatres.6
Reasons behind choosing sea route for terror attacks:A combination of factors have contributed to the decision of the terrorist groups and networks to shift to the sea. Some of them are detailed below:
Secure land borders: Unlike the sea, every inch of the land is under the jurisdiction of a sovereign state. Also in recent years, particularly after the September 11, 2001 terror attacks, many governments have invested heavily in the land based homeland security systems. The Indian government has also implemented widespread security measures, including maintaining strict vigil along the borders, erecting border fences and floodlighting them, installing detection and scanning devices at the various land customs stations and immigration check points, and thoroughly checking goods and people at the entry and exit points along the borders.7 These kinds of elaborate security arrangements serve as a major deterrence for criminals and terrorist groups alike to travel and operate over land. For example, if one has to send a consignment from Pakistan to Thailand over land, the consignment has to pass through several well-guarded international borders. On the other hand, if the consignment is sent through the sea route then it will be subjected to checks only at two places – port of exit and port of entry. But if the consignment is a contraband, then it can be put on a craft, launched clandestinely, sail and land at a suitable landing point in Thailand without being interdicted throughout.
Ungoverned seas: The maritime domain, most of which takes the form of high seas, lie beyond the jurisdiction of any one state. Consequently, policing is lax and difficult in the sea. The Freedom of Navigation8 codified in the United Nations Convention on Laws of Seas (UNCLOS) provides that every sovereign state, whether coastal or landlocked, has the right to sail ships carrying its flag in the high seas and shall not suffer interference from other states. No ship can be intercepted, boarded or searched unless and until it is firmly grounded on the suspicion that it is involved in piracy or transferring slaves or engaging in unauthorised broadcasting and the consent of the flag state is acquired. If seizure of a ship is carried out without adequate grounds, then the State which has seized the vessel has to pay heavy compensation to the state whose flag the seized ship was flying. Thus, international conventions put constraints on policing the high seas.
9Unpatrolled coastal waters:While the high seas remain unregulated, the territorial sea and the contiguous zone are subjected to the sovereignty of the coastal states and therefore are governed by their laws, rules and regulations. However, here also international conventions and practices restrict the authority of the coastal state. The right of innocent passage10 to foreign ships through territorial waters obliges the states to allow ships to sail too close to the shores as well as prohibits them from boarding and searching ships without prior permission. In addition, the trend to employ large numbers of Privately Contracted Armed Security Personnel (PCASP) by shipping companies and their functioning has resulted in insecurity and threats because most often than not the PCASP do not adhere to specified guidelines.11 Absence of well-defined international regulations regarding the employment and operation of PCASP jeopardises security in the coastal waters. The MV EnricaLexie incident of February 2012 where two fishermen from Kerala were killed by Italian marines off the coast of Kerala is a case in point.12
Most coastal countries, including India are also struggling to secure their coastal waters because of technological constraints, shortage of manpower and resource crunch. In recent years, there has been an increase in the maritime activities as a result of which the coastal waters are dotted with numerous big and small vessels. Boarding and searching each and every vessel for suspected persons or contraband is next to impossible. To address this problem, the Government of India has made it mandatory for every vessel which is more than 20 meters in length to be fitted with Automatic Identification System (AIS). It is also made mandatory for the ships entering Indian territorial waters to furnish pre-arrival notice (PAN) to concerned authorities. But the authorities are finding it hard to monitor them as ships fitted with AIS manipulate data. In recent years, there has been 30 per cent increase in ships reporting false identities world over.13 There is also a growing tendency among merchant ships to shut down AIS, and ‘go dark’ and spoofing i.e. generate false transmissions. These practices seriously undermine the capabilities of the authorities to track and monitor potentially dangerous vessels. This problem is further compounded by the fact that small boats, do not have any identification and tracking devices making it impossible for the authorities to monitor them.14 This constraint allows criminals and terrorists to hide their crafts and blend effortlessly among the fishermen.
Furthermore, all organisations involved in coastal security are coping with the problem of manpower and assets shortages, but it is more acute in the case of marine police which is at the cutting edge. The Coastal Security Scheme (CSS), which resulted in the establishment of Marine Police Force, mandates that the coastal states and union territories should sanction adequate executive and technical manpower to man the coastal police stations and carry out coastal patrolling. Unfortunately, many states do not sanction the stipulated numbers of posts for the coastal police stations. In places where posts are announced, the state administrations find it difficult to recruit personnel as there are either few takers for the job owing to high risk involved or persons with required qualifications are not found. Consequently, these posts remain vacant. The issue is more severe in the case of technical posts as it is difficult to find people with the technical expertise to operate and maintain boats. Although fishermen proficient in handling boats are preferred, but because of lack of awareness and required educational qualifications they do not get selected. In order to address this problem, a scheme to recruit retired navy and coast guard personnel in the technical posts was launched, but it has not proved to be a complete success. While recruitment of coast guard and navy personnel has taken place in all coastal states, in most cases the state governments have not been able to retain them. Absence of suitable rank and remuneration given to the retired personnel is one of the main reasons for large scale attrition in the technical work force.15
Besides manpower shortage, lack of infrastructure such as patrolling boats also hampers patrolling of the coastal waters. Under the CSS, fast interceptor boats along jeeps and motorcycles have been sanctioned to the Marine Police. In reality, many coastal police stations are yet to receive them. In places, where boats have been delivered, absence of technical manpower to operate and maintain the boats have made them ineffective. Most boats also do not operate because of lack of fuel. The amount sanctioned by the Union government is not adequate to operate the boats on a daily basis and the state governments are either unable or unwilling to provide additional fuel citing financial crunch. Improper repair and maintenance of the boats in case of severe wear and tear is also an issue. Faulty repair of engines and other functional parts by the agency has rendered a number of boats unusable.16 As a result coastal waters of the country remain unpatrolled. In fact, CAG reports have highlighted that there is 85 to 95 per cent shortfall in daily patrolling of coastal waters by the marine police in the coastal states. 17
Conduits for smuggling arms and terrorists: The quest for an accessible and flexible maritime trade has discouraged enactment of stringent maritime security regime, thereby providing terrorists with a viable conduit for covert movement of weapons and personnel. This is quite apparent in the practice of flag of convenience or open registry. Presently, more than half of the world’s merchant ships operate under flag of convenience, in which a merchant ship is registered in a country other than the ship owner’s. The purpose for this practice is to reduce overhead charges or to evade regulations of the owner’s country. Panama, Liberia, and Marshall Islands offer open registry and their flags account for almost 40% of the entire world fleet.18 Flag of convenience is considered detrimental for security and is criticised on the ground that a) most of the states offering open registry are not signatories to important international maritime conventions and have low levels of maritime regulations and, b) most of them do not have the ability or the inclination to enforce rules and regulations, c) open registry makes it difficult to establish genuine links between the real ship owner and the flag of the ship.19 These gaps allows ship owners to be legally anonymous and evade prosecution in civil and criminal actions. Taking advantage of these loopholes, some ships with flags of convenience have been found engaging in crime such as arms smuggling, trafficking of narcotics and people, and other illegal activities. The most recent case being the one in which the Indian coast guard intercepted a Ship MV Prince II or MV Hennry which was flying the flag of Panama and was found to be trafficking about 1500 kg of narcotics.20
The innovation of the container shipping has added to the speed and efficiency of the maritime trade.21 However, only a fraction of the containers entering any port is subject to checks. Added to this problem is the fact that many littoral states including India have poor port security systems. India has 207 non-major ports. Of these 64 ports handle EXIM cargo, but only 55 of them are International Ship and Port Security (ISPS) code compliant.22 The security of rest of the non-major ports is a major cause of concern because it is observed that in most of the non-major ports, physical protection arrangements such as deployment of security personnel, fencing of the perimeter, monitoring the access points, installation of screening and detecting machines, etc. do not exist. These ports also fail to routinely vet dock workers, do not insist that “truck drivers present valid identification before entering an offloading facility, and frequently over-look the need to ensure that all cargo is accompanied by an accurate manifest”23. The absence of uniform and concerted dockside safeguards works to the direct advantage of the terrorists, because it is virtually impossible to inspect containers once they are on the high seas and secondly only a tiny fraction of boxed freight is actually checked on arrival at its destination.
High value maritime targets: The age-old hunt for publicity remains the primary objective of any terrorist group to attack. Sea based terrorism provides the terrorists an additional means to inflict coercive punishment with maximum publicity. While huge tankers and ships in high seas away from population centres and news cameras are not preferred targets, cruise ships and passenger ferries plying in coastal waters are relevant because they cater to large numbers of people who are confined in a single physical space and are inherently vulnerable. Targeting these high prestige iconic targets not only cause massive loss of life but elicit considerable media attention as desired by the terrorist groups. The bombing of the SuperFerry 14 in the Philippines graphically underscores how easily mass casualties could result from a concerted attack against passenger shipping.24 Similarly, there are many cities, industrial and commercial centres as well as strategic installations such as naval bases, atomic power plants and rocket launching centres along the coast, which are potential high value targets for terrorists.
Economic disruptions: Terrorist groups like al- Qaeda recognise the economic impact of an attack which would shut down a port or choke important sea lanes of communication. Such an attack would disrupt the “just in time” mechanics of global maritime trade complex and could cause massive economic slump. The attack on MV Limburg in 2002 off the coast of Yemen is a case in point. The image of the burning oil tanker not only provided spectacular visuals but also directly contributed to a short-term collapse of international shipping business in the Gulf. The Yemeni economy lost an estimated $3.8 million a month in port revenues as war risks premiums levied on ships calling in Aden was tripled.25
In sum, the international laws advocating freedom of navigation and right to innocent passage in territorial sea have inadvertently facilitated the abuse of the maritime domain by terrorist groups to move their operatives and dangerous weaponry with ease, while at the same time putting constraints on coastal states in vigorously pursuing security measures. To further aggravate the precarious situation, inability of the coastal states to maintain law and order and security in their territorial waters because of inadequate resource and manpower as well as technological limitations have added to their vulnerability to terrorist strikes.
Ensuring Coastal Security
Given that India has been a victim of sea borne terrorism which resulted in massive loss of life and property and given that terrorist attacks from the sea remain a potential threat, the country has to remain ever vigilant against threats from the sea. As mentioned above, following the Mumbai attack of 2008, the Government of India has implemented a slew of measures to reduce, counter and eliminate threats of attack from sea. Some of these measures include strengthening the system of multi-layer patrolling and surveillance involving the navy, the coast guard, the marine police, the customs and an informal layer of fishermen; ensuring gapless electronic surveillance of the shores and coastal waters by establishing the Coastal Surveillance Network (CSN) and National Automatic Identification System (NAIS); installing ISPS code and vessel traffic management system in various ports and shipping channels for regulating maritime traffic and preventing potentially dangerous cargoes from entering the ports; installing navigation and communication devices on vessels more than 20 meters, their online registration, and issuance of biometric cards to fishermen and coastal villagers for the safety and security of the fishing vessels and their crew; and establishing the Information Management and Analysis Centre (IMAC) for enhancing maritime domain awareness.
Furthermore, the Government, in recent years, has reviewed and revised the Indian maritime laws to provide enabling legal framework for mercantile trade and maritime practices for maritime and coastal security. To begin, in April 2012, the Regulation of Entry Ships into (Ports, Anchorages and Offshore facilities) Rules, 201226 was notified to check and prevent entry of ships without valid documents into Indian ports and territorial waters. In 2015, the Merchant Shipping (Amendment) Act, 2014 was passed to revise Maritime Labour Standards along with various other sections of Marchant Shipping Act of 1958. In July 2017, the Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill was passed which “provides for prioritisation of maritime claims and maritime liens while providing protection to owners, charterers, operators, crew members and seafarers at the same time”.27 The Act replaced five obsolete British statutes on admiralty jurisdiction in civil matters28 and conferred admiralty jurisdiction on all High Courts of the coastal states of the country.
All these measures have been, to a large extent, effective in making various stakeholders aware of the threats coming from the sea as well as their respective mandates during coastal security operations thereby strengthening coastal security of the country. However, a number of shortcomings have prevented the coastal security mechanism to function optimally. Top down approach and application of some of these measures without proper understanding of the ground realities have created a number of hindrances such as shortage of manpower and resources, inadequate coordination among concerned agencies, lack of proper training, technological constraints, lackadaisical attitude of state governments, etc. The next step for the Government, therefore, is to urgently address these ground situations so that the country’s coast and coastal waters are secured.
1 Syed Raza Hassan and Katharine Houreld, “In attack by al Qaeda, lines blur between Pakistan’s military, militants”, Reuters, October 1, 2014, at https://www.reuters.com/article/us-pakistan-militants-attacks-insight/in-attack-by-al-qaeda-lines-blur-between-pakistans-military-militants-idUSKCN0HP2MM20141001 (Accessed on May 18, 2018)
2 “AQIS claims plot to strike US warships was executed by Pakistani Navy officers”, The Long War Journal, September 18, 2014, at https://csc.asu.edu/2014/09/18/aqis-claims-plot-to-strike-us-warships-was-executed-by-pakistani-navy-officers/ (Accessed on May 18, 2018)
3 “Guantanamo prisoner al-Darbi admits MV Limburg attack”, BBC News, February 20, 2014, at http://www.bbc.com/news/world-us-canada-26277556 (Accessed on May 18, 2018)
4 Michael D. Greenberg, et al., “Maritime Terrorism: Risk and Liability”, RAND Corporation, Santa Monica, 2006, p. 9, at http://www.rand.org/content/dam/rand/pubs/ monographs/2006/RAND_MG520.pdf. (Accessed on May 18, 2018).
5 ibid, p. 10-11.
6 Peter Chalk, “The Maritime Dimension of International Security, Terrorism, Piracy, and Challenges
for the United States”, RAND Project Airforce, Santa Monica, 2008, p. xiii,
at https://www.rand.org/content/dam/rand/pubs/monographs/2008/RAND_MG697.pdf (Accessed on May 18, 2018)
7 “Infiltration along borders”, Unstarred Question No. 2667, LokSabha, August 1, 2017, at http://220.127.116.11/loksabhaquestions/annex/12/AU2667.pdf (Accessed on May 18, 2018).
8 “Article 87- Freedom of the high seas”, Part VII- HIGH SEAS, Section 1-GENERAL PROVISIONS, United Nations Convention on the Law of the Sea, p. 57. At http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (Accessed on May 18, 2018)
10 “Article 17- Right to Innocent Passage”, Section 3- INNOCENT PASSAGE IN THE TERRITORIAL SEA, SUBSECTION A. RULES APPLICABLE TO ALL SHIPS, United Nations Convention on the Law of the
Sea, p. 57, at http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf (Accessed on
May 18, 2018)
11 “Chapter 2- Maritime Security Imperatives and Influences”, Ensuring Secure Seas: Indian Maritime Security Strategy, (New Delhi; Naval strategic Publication, 2015), p. 41.
12 “Italian Marines case: Two killings at sea, an international legal battle”, The Indian Express, January 20, 2016, at http://indianexpress.com/article/explained/simply-put-2-killings-at-sea-an-international-legal-battle/ (Accessed May 20, 2018)
13 Vijay Sakhuja, “India Reinforces Maritime Domain Awareness”, The Maritime Executive, December 2, 2014, at https://www.maritime-executive.com/article/India-Reinforces-Maritime-Domain-Awareness-2014-12-02#gs.3CGgD1k (Accessed on May 20, 2018)
14 Annual Report 2017-18, Ministry of Home Affairs, New Delhi, 2018, p. 41.
15 Pushpita Das, “Coastal Security: The Indian Experience”, IDSA Monograph Series No. 22, September 2013, pp. 72-73.
17 “Odisha achieves 3 per cent patrolling target in 11 years of coastal security scheme: CAG”, The Indian Express, Bhubaneswar, September 26, 2016, at http://indianexpress.com/article/india/india-news-india/odisha-achieves-3-per-cent-patrolling-target-in-11-years-of-coastal-security-scheme-cag-3051552/ (Accessed on May 20, 2018); “CAG: Coastal security plan running behind schedule”, The Times of India, New Delhi, April 9, 2018, at https://timesofindia.indiatimes.com/india/cag-coastal-security-plan-running-behind-schedule/articleshow/63673501.cms (Accessed in May 20, 2018); “CAG report exposes holes in coastal security”, DNA, Mumbai, April 11, 2015, at http://www.dnaindia.com/mumbai/report-cag-report-exposes-holes-in-coastal-security-2076479 (Accessed on May 2018).
18 “Flags of Convenience – Advantages, Disadvantages & Impact on Seafarers”, Sea News, October 27, 2017, at http://seanews.co.uk/flags-of-convenience-advantages-disadvantages-impact-on-seafarers/ (Accessed on May 28, 2018).
19 Michael A. Becker, “The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea”, Harvard International Law Journal, Volume 46, Number 1, Winter, 2005, pp. 141-142.
20 “Coast guard catches Panamanian ship with 1500 kg heroin worth Rs 3,500 crore off Gujarat coast”, The Indian Express, Mumbai, July 30, 2017, at http://www.newindianexpress.com/nation/2017/jul/30/coast-guard-catches-panamanian-ship-with-1500-kg-heroin-worth-rs-3500-crore-off-gujarat-coast-1635759—1.html (Accessed on May 28, 2018).
21 Michael A. Becker, “The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea”, n. 18, pp. 141.
22 Annual Report 2016-17, Ministry of Home Affairs, New Delhi, 2018, p. 52.
23 Rupert Herbert-Burns, Sam Bateman and Peter Lehr, (eds.), Lloyd’s MIU Handbook of Maritime Security, (Boca Raton; CRC Press, 2009), P. 119.
24 “Bomb caused Philippine ferry fire” BBC NEWS, October 11, 2004, at http://news.bbc.co.uk/2/hi/asia-pacific/3732356.stm (Accessed on May 28, 2018).
25 Michael D. Greenberg, et. Al., Maritime Terrorism: Risk and Liability, n. 4, p. 16.
26 Merchant Shipping (Regulation of Entry of Ships into Ports, Anchorages and Offshore facilities) Rules, 2012, at http://www.chennaiport.gov.in/downloads/mer.pdf (Accessed on May 28, 2018).
27 “The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill, 2017 Passed Unanimously by RajyaSabha”, Press Information of India, July 24, 2017, at http://pib.nic.in/newsite/PrintRelease.aspx?relid=168943 (Accessed on May 28, 2018).
28 Abhay Kumar Singh, “The Admiralty (Jurisdiction and Settlement of Maritime Claims) Bill 2016 – The Long Journey of an Important Maritime Legislation”, IDSA Comment, October 3, 2016, https://idsa.in/idsacomments/admiralty-maritime-claims-bill-2016_aksingh_031016 (Accessed on May 28, 2018).
(Dr.Pushpita Das is a Research Fellow at Institute for Defence Studies and Anlyses (IDSA), New Delhi.)
(This article is carried in the print edition of July-August 2018 issue of India Foundation Journal.)