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Law of the Sea and Maritime

Disputes in the Indo-Pacific


V.M. Syam Kumar, Advocate, Kochi
Law of the Sea
What constitutes law of the sea?

Normative evolution in Law of the Sea

Law of the Sea is not just the UNCLOS Convention of 1982.

Law of the Sea is part of International Law: So Vanishing point of

Jurisprudence?

Enforceability of International law: Will of the Hegemon?

Rule of law to be respected- Do States practice what they preach?


Disputes in the Indo-pacific
Threats to Coastal Security.
Freedom of Navigation
Traditional Fishing rights
Piracy
Maritime Terrorism.
Conservation of Living Resources
Exploitation of non living resources
Marine Pollution.
Maritime delimitation
Threats to Coastal Security.
Two recent incidents that happened along the
Indian coast involving the vessels Enrica Lexie and
Seaman Guard Ohio have renewed questions
concerning coastal security.
Freedom of navigation is the first in the bouquet
of freedoms that together constitute the
freedoms of the sea.
UNCLOS III has effectively tried to reconcile the
conflicting interests of the coastal states security
concerns in its adjacent waters and the concept
of freedom of navigation, by evolving the concept
of innocent passage.
The fact that UNCLOS does not specifically talk
about terrorism or about non-state actors
threatening coastal state security may not
hinder the coastal state from evolving norms
by drawing force from its provisions.
A conjoint reading of UNCLOS III and the Indian
statutes in force reveal that though there is no
specific mention of the terms terrorists or
non-state actors in their provisions, the
statutes are wide enough and do empower the
coastal state to enact laws to ensure the
security of its shores.
The Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zones Act, 1976 is
the Indian legislation governing maritime zones.
Though enacted prior to UNCLOS III, it reflects the
principal norms laid down in UNCLOS III.
A notable variation of much relevance to coastal state
security is that Sec 5 (4) provides that the central
government may exercise such powers and take such
measures in or in relation to the contiguous zone as it
may consider necessary with respect to (a) security of
India and (b) immigration, sanitation, customs and
other fiscal matters. The inclusion of security is in
addition to the powers available within the contiguous
zone under UNCLOS III.
The Enrica Lexie and legal issues
Does the arm of the Indian law stop short at
12 nautical miles from the Indian coast or is it
capable of being stretched to further extents
of its maritime zones to deal with perpetrators
of crime within those zones?
This is one of many pivotal questions thrown
up by the recent incident involving the Italian
vessel Enrica Lexie.
The Italian marines are undoubtedly entitled
to a fair trial and hearing and should never be
condemned unheard. Their legal and factual
contentions must be considered on merit and
they should be presumed innocent until
found otherwise by a competent court. If they
argue that they are not governed by Indian
law, that contention deserves to be
considered and if it is found that Indian law is
not applicable they ought to be handed over
to be tried under Italian law.
The question whether the Indian courts have
jurisdiction to try the two Italian marines
involved in the shooting was specifically
addressed before the court by the relatives of
the dead fishermen. They pointed to Sec.3 of
the Indian Penal Code and to two specific
statutes in force in India: the Admiralty
Offences (Colonial) Act, 1849 and the
Suppression of Unlawful Acts against Safety of
Maritime Navigation and Fixed Platforms on
Continental Shelf Act, 2002 (the SUA Act,
2002).
The Admiralty Offences (Colonial) Act, 1849 is
a statute which envisages extra-territorial
operation and specifically deals with and
empowers authorities to take legal action with
respect to admiralty offences or offences
committed upon the sea i.e., beyond the
territorial waters of India. The said Act is
protected vide Art. 372 of the Constitution of
India and continues to have extra-territorial
effect pursuant to Explanation II to Art. 372.
Alondra Rainbow
In February 2003, fifteen Indonesian pirates who
had boarded a Japanese ship named Alondra
Rainbow were successfully prosecuted and
convicted in Mumbai, India invoking inter alia the
provisions of the Admiralty Offences (Colonial)
Act, 1849. All pirates were sentenced to seven
years of rigorous imprisonment with a fine of
Rs.3000 for each crew member, in default of
payment of fine, to suffer further rigorous
imprisonment for two months.
The Captain of the Enrica Lexie and the two Italian
marines could also be liable to be prosecuted under the
Suppression of Unlawful Acts against Safety of Maritime
Navigation and Fixed Platforms on Continental Shelf
Act, 2002 (the SUA Act, 2002).
This Act, vide S.1(2) extends to the Territorial Waters,
the Continental Shelf, the Exclusive Economic Zone and
any other Maritime Zone of India within the meaning of
the Maritime Zones Act, 1976.
Thus the jurisdiction of the Indian authorities stand
extended beyond the territorial waters of India up to
the edge of the exclusive economic zone which is 200
nautical miles from the baseline. Offences within the
said zone are thereby punishable under the SUA Act.
The SUA Act defines the term Ship in S.2(h)
as to include any floating craft. Thus both
Enrica Lexie and the fishing boat St.Antony are
ships/floating crafts and are thereby
amenable to the SUA Act. Chapter II of the
SUA Act lists the various offences under it. It
lays down the punishment for such offences
as well. Thereby it can be seen that it is a
complete code in itself. Section 3 (1) (a), (b),
(c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3
(7) and (8) (c) of Chapter II of the SUA Act,
2002 are specifically relevant.
Somali Piracy, the PMSC boom & the
Seaman Guard Ohio
The threat of piracy from the Somali coast has
led to the creation of private maritime security
companies (PMSCs) They provide security to
the merchant marines in pirate-infested
waters. The recent detention by the Indian
Coast Guard of an American Vessel Seaman
Guard Ohio has brought to fore a number of
issues concerning the status and legitimacy of
private maritime security companies (PMSCs).
Seaman Guard Ohio
The vessel, registered in Sierra Leone and owned
by a US PMSC was detained in the Indian Port of
Tuticorin.
According to the Indian Coast Guard, the said
vessel was found within Indian maritime zones
with a cache of arms and ammunition which she
could not properly account for. The Master,
officers and crew of the vessel (including Indians)
were arrested and lodged in an Indian prison in
the state of Tamil Nadu. They have been charged
with violating various Indian statutes including
the Arms Act.
The incidents involving the Enrica Lexie and
the Seaman Guard Ohio reveal that all is not
well with the Indian coastal security scenario
despite the steps taken in the aftermath of the
Bombay attacks. Both incidents reveal that
pending issues cannot be solved by enacting
norms in India alone, as they have
international ramifications and need to be
tackled at a macro level.
India, which is hoping to play a larger role in
the Indian Ocean region, ought to evolve steps
to control floating armouries such as the
Seaman Guard Ohio which violate coastal
state laws with impunity. Strict
implementation of PMSC norms ought to be
undertaken to avoid incidents such as the
Enrica Lexie.
The SUA Act, 2002 and other enactments of
the Indian Parliament cannot be left
redundant and must be invoked against those
found liable under its provisions.
Traditional Fishing rights

There has been a tremendous increase in the


number of collision incidents along Indias
West and Southern Coast involving Merchant
vessels and fishing boats.
This has lead to considerable loss and issues
for fishing population along the coast.
States as a Federal unit finds itself
handicapped in these issues.
Maritime delimitation

Disputes in East China Sea & South China Sea


Maritime boundary dispute between
Bangladesh and India
Maritime boundary dispute between
Bangladesh and Myanmar
1. A delimitation of maritime boundary has to be
fair and equitable.
2. It should also be durable and should take note of
the special circumstances of the relevant area
were delimitation is attempted to be effected.
3. UNCLOS 1982 only states the goal to achieve
maritime delimitation. It does not elaborate on
the principles and methods for the achievement
of equitable result. Art. 15, 74, 83 while speaking
of delimitation stresses on agreement between
states.
Principles and Methods influencing
Delimitation of maritime boundaries.
1. Equidistance Method

2. Equity and equitable principle method

3. Proportionality

4. Single Maritime Boundary

5. Relevant circumstances

6. Other methods
Relevance circumstances in
delimitation of maritime boundaries
1. Geographical circumstances
a. Configuration of coasts
b. Presence of Islands
2. Non Geographical circumstances
a. Geology and geo morphology
b. Socio economic circumstances
c. Conduct of States
d. Interests of third states and security and political
considerations
e. Historic title
North Sea Continental Shelf cases
maritime boundary dispute between
Bangladesh and India
Dispute in the South China Sea

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