Ladies and Gentlemen,
With deep pleasure and immense respect for your institution, I have come to meet you today in your headquarters of Southern Naval Command at Kochin. I consider this occasion has a long sought for opportunity given to me to pay respect and admiration to the valiant men of our country. My in-depth gratitude to Vice Admiral A.R Karve, Flag Officer Commanding-in-chief for having invited me to address valor persons who vowed to keep always the interest of the nation dearer than the interest of oneself. At the outset, I address an affectionate greeting to each one of you.
Every day, when we, the common people experience a virtuous and protected quality of life, we remember the sacrifice and devotion of each of you that goes behind providing such quality of life to each citizen. We may not be paying respect to you all in a ceremonial way on a daily basis but certainly behind each heartbeat of ours their lay thousands of thanks and salutes to personalities like you who constitute our country’s proud defense force.
In a short stint of conservation I had with the Flag Officer Commanding-in-chief I could grasp the common sentiments, which dwells in each one of you for the progression of the Indian Navy Force and the country as a whole. Indian Navy Force is one of prominent navy forces among the community of nations and with the latest accomplishments by launching the Indian Navy's seventh landing craft utility, the largest of its kind we are certainly marching faster than ever before towards the top position. Attaining this position comes with a massive responsibility on each of your shoulders. You, the Indian Navy Force are the ‘net security provider’ in the maritime neighbourhood, including deployments for anti-piracy, maritime security, NEO (Non-combatant Evacuation Operations) and HADR (Humanitarian Assistance and Disaster Relief) operations.
I have been asked to address your esteemed selves on relevance of International Maritime Law and legal issues of the maritime domain. Although, I am no expertise on International Maritime law, since this genera of cases was not within my portfolio of disposal of cases during my judgeship; nevertheless I can use this platform to elucidate on contemporary related topics, which I consider it to be pertinent.
India has suffered for the past nearly two decades from terrorism. Countless innocent lives have been lost to the terrorist's bombs and guns. India has sought to emphasize at international forum that terrorism is a global menace to which democracies are particularly vulnerable. India has called for concerted global action to counter terrorism and to ensure the enactment of measures such as sanctions against states responsible for sponsoring terrorist acts across international borders.
The string of maritime attacks perpetrated in recent years demonstrates that terror has indeed gone to sea.Besides, the number of pirate attacks worldwide has tripled in the past decade, and new evidence suggests that piracy is becoming a key tactic of terrorist groups. Terrorist groups have long sought to develop a maritime capability. Intelligence agencies of few developed countries estimate that terrorist groups now own dozens of phantom ships-hijacked vessels that have been repainted and renamed and operate under false documentation, manned by crews with fake passports and forged competency certificates. Further, Security experts have long warned that terrorists might try to ram a ship loaded with explosive cargo, perhaps even a weapon of mass destruction, into a major port or terminal. Such an attack could bring international trade to a halt, inflicting multi-billion-dollar damage on the world economy.
The wise strategy to tackle international terrorism at sea should be a multi-layered one that addresses all kinds of grievances.India being a maritime nation, the role of coast guards is very vital for shielding the coast from external attacks. The coastal belt is surveyed by three teams of officers: Firstly, the Indian Navy who is responsible for overall seaward security of long coastline. Secondly, the coast guards who guard the Exclusive Economic Zone (EEZ) in order to prevent poaching, smuggling and other illegal activities in the EEZ. Lastly, the customs officials, who scrutinise and monitor every commodity which enters the Indian boundaries. This triple-layered security system is created primarily to guard the Indian Coastline from maritime terrorism, piracy and to keep out foreign intruders. Hence, it is the paramount duty of all you officials to be vigilant, heedful and attentive to each activity which occurs in the sea and on the shore.
It is owing to deficient performance of the officals in this triple-layered security system that allowed the occurrence of Bombay Bomb Blasts on 12th March 1993, one of the devasting incident in the history of Indian democracy. The occurrence of Bombay Bomb Blast brings us to the reality that such incidents takes place in the Indian coastline irrespective of the numerous laws and safeguards provided, which goes to validate that such incidents occur mostly due to lack of moral ethics and misconduct on part of the officals. Corruption among public servants indicates the failure of our system where pursuit of personal gratification subdues public interest.
MARITIME LAWS IN INDIA
For years India’s territorial waters and continental shelf were governed by proclamations issued by the President of India. In 1976, consequent upon the 3rd United Nations Convention on the Law of the Sea (“UNCLOS”), held at Geneva, the Territorial Waters, Continental Shelf, Exclusive Economic Zones and Maritime Zones Act, 1976 was enacted in India. The Act regulated land, minerals, and other resources, underlying the ocean, within the territorial waters, the continental shelf or the Exclusive Economic Zone(“EEZ”) vested with the Union of India. The Act categorically prescribes the limits ofthe territorial waters, continental shelf, EEZ and other maritime zones of India. It also provides the legal framework specifying the nature, scope and extent of India’s rights, jurisdiction and control of various maritime zones; the maritime boundaries between India and its neighboring countries; and the exploitation, exploration, conservation and management of natural resources within the maritime zones. Further, the Act proposed to undertake separate legislation in future, as and when required, to deal with the regulations for exploration and exploitation of particular resources in which India has jurisdiction. Thus, the Act by its very nature is umbrella legislation on maritime issues.
Subsequent to the enactment of the Act, the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 (MZI Act) was enacted to curb poaching activities by foreign fishing vessels in the Indian EEZ. Under the MZI Act, the EEZ was protected from exploitation of living resources by Indians and/or foreign nationals aboard a foreign vessel, which did not hold a valid license/permit issued under the MZI Act. Thus, in many ways the MZI Act complements the Act.
INTERNATIONAL MARITIME LAWS
Notable in the development of the law of the sea are a number of international conventions signed in the latter half of the 20th century. The United Nations (UN) held its first Conference on the Law of the Sea (UNCLOS I) in 1956, which resulted in a 1958 Convention. The final conference, held in Montego Bay, Jamaica, in 1982, resulted in the 1982 United Nation Law of the Sea Convention (UNLOSC). The UNLOSC came into force in 1994 upon receiving the necessary number of UN signatories. However, UNCLOS 1982 has been ratified by India only on 29th June 1995.
“Admiralty and Maritime law” covers a broad range of subjects. This field of law has its own rules relatingto jurisdiction and procedure. Classically, maritime law was a speciesof commercial law, and in many countries it is still treated assuch. Thus, this monograph includes topics such as charter parties,carriage of goods, and marine insurance. There are also areas of maritimelaw that are peculiar to the subject matter.
It is in this light, framers of Constitution incorporated Articles like 51, 53, and 253 in the Constitution. Article 51 in the Constitution directs the Executive to promote international peace as India’s objective in the international sphere and provides the basis for the domestic implemention of international treaty obligations. Thus the Government of India is competent to give effect to international treaty obligationsthroughthe exercise of executive power by the President of India directly or indirectly in terms of under Article 53 without invoking power of the Legislature under Article 253 in order to fulfil the mandate of Article 51. At present, this is the principle on which state practice is founded in respect to international obligations arising out of the UNCLOS, 1982 ratified by India.
RELATION BETWEEN DOMESTIC MARITIME LAWS AND INTERNATIONAL MARITIME LAW
The relation between domestic maritime laws and international maritime law is obvious yet intricate. The domestic rule of law has profound implications for the well being of the Citizens of that State, whereas international rule of law emanates from foreign policy with an abiding belief in the need for a rules based international system which is flexible enough to find the balance between respect for sovereignty and the reinforcement of human rights, democracy and freedom. As a result the flexibility, which is significant for international maritime law, does not denote it as less of a law. We must remind every time we encounter with international maritime law that the international maritime law itself thrives on the degree of civilization sustained among the sovereign States, hence more civilized we are, the greater will be the effectiveness of the international law in any sphere including international maritime law.
Law and compliance are conceptually interlinked because law unambiguously aims to achieve compliance with its rules, which set the standard by which the effectiveness of law is judged. In our multifaceted world, problems emerge that exceed the scope and capability of individual States over the sea front like terrorism. For those problems, international maritime law is the only promising way out. Obligations and commitments are perpetual aspects of international affairs. Disagreement over the efficacy of international commitments and their compliance is equally persistent.
In fact, the issue of compliance has pervaded the structure of international maritime law and influenced it in its entirety by systematically connecting it to its ability to display effects. Nevertheless, the aspiration of international maritime law to impose itself as a legal system and the emergence of universal values erga omnes in nature, have inevitably entailed increasing limitations on effectiveness. It is widely perceived that if international maritime law aligns with state interests, compliance is both expected and achieved. But, when international maritime law is hostile to state’s self-interest, nothing deters the state from simply violating the international maritime law.
A growing consensus on the foundations of the binding force of international law, the broadening of international responsibility for the maintenance of international peace and security and the international protection of human rights and the environment, indicate the renewed faith in the ability of international law to set up a global order.
STRIKING ILLUSTRATION: ENRICA LEXIE CASE
Recent developments in Kerala owing to killing of Indian fishermen by armed marines boarded on Italian Vessel Enrica Lexie, has left open multiple legal questions. Indian Court is trying two Italian marines in the deaths of two Indian fishermen 20.5 nautical miles out to sea, which is within India’s contiguous zone and the EEZ. The primary question was whether the marines accused of murder, be tried in Indian Courts as per Indian law, or whether Italian law be applicable being the law of flag state?
Article 33 of the UNCLOS is quite clear — the coastal state can act against and punish “infringement of its customs, fiscal, immigration or sanitary laws and regulations” in the contiguous zone. But whether the accidental shooting of two fishermen by the Italians comes under this is not clear. However, our Court’s view is that Section 188A of the Code of Criminal Procedure and section 7(7) of the Maritime Zones Act of 1976 provides that India can proceed against any person who commits a crime in its EEZ, which means 200nm out to sea. These notifications were made before India ratified UNCLOS in 1982 and so India firmly believes that its laws are not inconsistent with UNCLOS. Nevertheless, even if domestic laws are inconsistent with UNCLOS, Indian domestic law shall prevail is our present stand in both national and international forums of law.
UNCLOS 1982 has been ratified by India on 29th June 1995 and it should be noted that there has been no reservations or declarations made by India at the time of ratification pertaining to extension of criminal jurisdiction beyond territorial waters. On one hand, it may be argued that by ratifying UNCLOS India ought to restrict the exercise of criminal jurisdiction especially when no reservation or declarations pertaining to the same has not been made; thereby, signifying the intention to be bound by the principles of UNCLOS. But it is also true that as Article 309 of UNCLOS reservations and other exceptions are not allowed and by virtue of Article 310 declarations and statements should be in such a way that it do not purport to exclude or modify the effects of this convention in the particular state and these may be the reasons why India restricted itself from making appropriate reservations or declarations. Notwithstanding this fact, it is very well settled that in case of conflict between international law and municipal law, municipal law shall prevail and thus section 188A can still be applied in the instant case contrary to the provisions of UNCLOS.
India’s legal claim to jurisdiction over its maritime zones flows from Article 297 of the Constitution of India. It is amazing to note that Article 297 does not specifically refer to the “Contiguous Zone” of India, but to “other maritime zones.” This provision, as it stands today, was substituted by the 40th Amendment Act, 1976, in order to take advantage of the third U.N. Conference on the Law of the Sea, and was immediately followed by the adoption by Parliament of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976. This was probably encouraged by the development of new concepts like the EEZ and overwhelming state practice in favour of a 12 nautical mile (NM) territorial sea. Needless to say, the 1982 Convention on the Law of the Sea stands out for its functionalist approach to law of the sea issues, particularly to issues of state jurisdiction in diverse maritime zones.
Section 5 of the Maritime Zones Act establishes a 24 NM Contiguous Zone of India and empowers the Central Government to “exercise such powers and take such measures in or in relation to the contiguous zone as it may consider necessary with respect to,- (a) the security of India, and (b) immigration, sanitation, customs and other fiscal matters.” It also empowers the government to extend to the Contiguous Zone any law in respect of (a) and (b). There is evidently no reference to extension of coastal criminal jurisdiction to the Contiguous Zone.However, quite interestingly, Section 7 of the Act establishes the Exclusive Economic Zone of India as “an area beyond and adjacent to the territorial waters,” and the limit of such zone is 200 nautical miles, in other words encompassing the Contiguous Zone. In the result, the Section further provides that “the Central Government may, by notification in the official Gazette,- (a) extend, with such restrictions and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof to the exclusive economic zone or any part thereof; and (b) make such provisions as it may consider necessary for facilitation of the enforcement of such enactment, and any enactment so extended shall have effect as if the exclusive economic zone or the part thereof to which it has been extended is a part of the territory of India.” This omnibus clause obviously empowers the government to extend criminal jurisdiction to EEZ, at least for the reason that with increasing economic and mining activities in EEZ, there is bound to be scope for criminal jurisdiction.
OBSERVATION OF THE SUPREME COURT IN ITALIAN MARINES CASE
Although the dispute between India and Italy seems to have been abated for now, a closer look at the Supreme Court’s judgment of 18 January 2013 finding that India had jurisdiction to prosecute the marines is important. In its judgment, the Court found that India had jurisdiction over the Italian marines. Specifically, the Court – reasoning through a curious blend of international and domestic law – quashed the proceedings before the Kerala High Court, directing the federal Government to set up a special court to try the marines.
The issue before the Court revolved around the effect of Notification No. SO 67/E (1981) under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976(“TW Act”), which extended the application of the IPC to the Exclusive Economic Zone (“EEZ”). It has to be noted that the Notification is a law according to Article 13(3) (a) of the Constitution of India. The Court concluded that though the Maritime Zone Act extended the application of the IPC to the EEZ (and thus the Contiguous Zone), the incident lay beyond the territorial jurisdiction of Kerala, which coincided with its territorial waters. The effect of the Notification then was to extend the powers of the Indian Union, and not of a federal unit within it. Similarly, the Court held that the inclusion of Section 188A to the Code of Criminal Procedure (which extends Indian criminal jurisdiction to the EEZ) does not expand Kerala’s local jurisdiction and fails to justify the prosecution in the courts of Kerala. Equally, the Court considered this conclusion proper as a dispute between two nations took the matter “to a different level”, making a federal unit’s involvement incorrect as a matter of law.
Importantly, the Court did not decide the question of jurisdiction conclusively. Rather, it noted that this judgment “will not prevent the Petitioners herein in the two matters from invoking the provisions of Article 100 of UNCLOS 1982, upon question of jurisdiction of the Union of India to investigate into the incident and for the Courts in India to try the accused may be reconsidered.”
CONCLUSION:
Transnational threats, including sea piracy, immigration control and assistance during natural disasters, have dramatically increased the maritime security challenges in India. Countering these threats and challenges requires consistent cooperation between the states affected and the associated maritime agencies.
It takes men and women of outstanding character and drive to become candidates of Indian Navy Force. The duty to save the country and its countrymen without fear, or favour is delicately cast upon the shoulders of the Indian Navy Force officers. While excising such onerous duty, you are required not only to comprehend the situation, but essentially how to use the responsibility of decoding the situation in the right way. Your incredible judgment and advice at the right time plays a dynamic role in the functioning of Indian Navy. Thus your advice must be pragmatic, well balanced, legally sound and with the twin aim of delivering justice and maintaining peace.
With these sentiments, I renew to you my most cordial good wishes. Before concluding, I appreciate the efforts of Captain Vivek Dahiya, Officer in Charge, Navigation and Direction, School of Indian Navy for organizing this function in a befitting manner.
Thank You
Jai Hind
Vice Admiral AR Karve, Flag Officer Commanding in Chief, Southern Naval Command
All Flag Officers present,
Other Officers
