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International Maritime Disputes Of India

In spite of clearly defined boundaries, maritime disputes are common where countries compete over inhabited and uninhabited islands.

Sea as the most widely used means of trade and transport has played a pivotal role in the growth of the Maritime Industry which lead to the economic growth of a nation. Maritime security has always been a major concern for the nations with coastal boundaries. The adoption of United Nation Convention on the Laws of Sea, 1982 (UNCLOS) recognized international crimes on high seas such as piracy.

The recent rise in the number of incidents of piracy and other international crimes near the Indian Ocean has exposed India to maritime warfare and at the same time raising question on India's position in dealing with crimes over international waters especially with reference to the issue of piracy. However, in spite of India being a signatory to UNCLOS, scant laws are available which specifically deals with crimes and offences that happen at the high seas. There is a need for a concrete law to deal with the international crimes at sea such as anti-piracy laws. In spite of clearly defined boundaries, maritime disputes are common where countries compete over inhabited and uninhabited islands.

When looking at the earth from space, one fact is obvious: Water is the dominant feature. In fact, about 70 percent of the planet is covered by water and a significant portion of the earth is covered by frozen water in the Arctic and Antarctica.

Historically, great powers have been those with access to the sea, such as the United States, Britain, France, Germany, Holland, Spain, Portugal, and Japan. Countries forecast to be great powers in the 21st century also include budding seafaring nations like China, India, and Brazil. International law is critical to navigating challenges that occur on the world's oceans.
“Whoever controls the Indian Ocean will dominate Asia.

This ocean is the key to seven seas. In the 21st century , the destiny of the world would be decided on its waters.” These lines were said by captain ‘Alfred Thayar Mahan' and this is what is happening in the present times and international waters are the most disputed these days. Maritime security has always been a major concern for the nations with coastal boundaries. The adoption of United Nation Convention on the Laws of Sea, 1982 (UNCLOS) recognized international crimes on high seas such as piracy.

The recent rise in the number of incidents of piracy and other international crimes near the Indian Ocean has exposed India to maritime warfare and at the same time raising question on India's position in dealing with crimes over international waters especially with reference to the issue of piracy. Being a growing maritime power and with the coastline of around 7500 km, maritime security has always been a major concern for India.

In spite of UNCLOS assuming the force of customary law under International Law, there is a need for a concrete law to deal with the international crimes at sea. Although the Indian legal framework provides various enactments and rules regulating the maritime activities such as demarcation of maritime territories, merchant shipping, carriage of goods by sea etc., the Parliament of India has not been able to codify the law dealing with anti-piracy.

Dispute Between Bangladesh and India

Bangladesh went in for arbitration over the delimitation of maritime boundary under the United Nations convention on law of sea (UNCLOS) on October 8 2009.the court concluded its hearings on December 18, 2013 in the Hague. the argument focussed on issues including the location of the land boundary terminus, delimitation of the territorial sea, exclusive economic zone, and the continental shelf within and beyond 200 nautical miles.

The verdict was delivered with united nations awarding Bangladesh 19,467 sq. kms. of the 25,602 sq. kms. of the area of Bay of Bengal. In a landmark judgment, the Hague-based Permanent Court of Attribution (PCA) has awarded Bangladesh an area of 19,467 sq km, four-fifth of the total area of 25,602 sq km disputed maritime boundary in the Bay of Bengal with India on July 7. The UN Tribunal's award has clearly delineated the course of maritime boundary line between India and Bangladesh in the territorial sea, Exclusive Economic Zone (EEZ) and continental shelf within and beyond 200 nautical miles (nm).

Now, Bangladesh's maritime boundary has been extended by 118,813 sq comprising 12 nm of territorial sea and an EEZ extending up to 200 nm into the high seas. In addition, the ruling acknowledged Bangladesh's sovereign rights of undersea resources in the continental shelf extending as far as 345 nm in the high seas, taking Chittagong coast as the base line.

The verdict has been broadly accepted by both the countries as a positive development for further consolidation of friendly relations especially given the geo-strategic/political significance of greater Indian Ocean region and South Asian sub-region. Moreover, the award has wide security and economic implications not only for India and Bangladesh but also for the entire Bay of Bengal region. Some are of the opinion that the ruling could provide impetus for the new Indian government to ratify the Land Boundary Agreement and reach an understanding on sharing the waters of the Teesta river with Bangladesh.

The verdict would contribute towards establishing strategic partnerships among the nations sharing borders in the Bay.

Bangladesh foreign minister Mahmud Ali said: “this is a victory of friendship between Bangladesh and India. The maritime dispute between the two countries has come to an end following the verdict.” the verdict would take the relationship between the two countries “one step forward,” he added. The verdict is also good news for millions of fishermen in both the countries. The amicable settlement has opened up vast sea areas which were not available to them in the last four decades.

India – Sri-Lanka Maritime Disputes

Maritime Cooperation

The dynamics of the Indian Ocean have great economic and political implication-particularly of South Asia. It has always been an arena of power struggle. Given the strategic location in the Indian Ocean, any disruption to the stability of Indian Ocean would be detrimental to India's security.[1]

The boundaries of India and Sri Lanka are the separated by a sea waters. Despite the existence if two maritime agreements of 1974 and 1976 with Sri Lanka, maritime issues stills persists.
The foremost maritime issue with Sri Lanka is that of status of Kachchativu, a small barren island in the Palk Bay area. Though, India agreed on Sri Lankan sovereignty over the area but certain reservations for the Indian fishermen were agreed by both nations who were permitted to have restricted access to Kachchativu island for the purposes of fishing.

However, recently, due to high level of monitoring by the Sri Lankan authorities, there was a rise in the incidents of arrest and shooting of Indian fishermen. After a great deal of negotiations the detainees were released on the condition to drop the appeal against the Sri Lankan authorities. This issue persists due to the livelihood dependency of the Indian fishermen who have limited access to the sea waters. he 1974 and 1976 agreements have not put an explicit embargo on fishing by Indian fishermen beyond the Indian maritime zone, though the sovereign rights of Sri Lanka in its part of the zone related to fishing rights are unquestionable.[2] This has turned into a sensitive issue as it involves the question of livelihood of large number of fishermen.

The second maritime issue which acts as an impediment is the delay in the execution of Sethusamudram Ship Channel Project which, envisages creation of a ship navigation channel to suit different draughts through dredging/excavation in Adam's Bridge, parts of Palk Bay and Palk Strait. The navigation route will originate from the Tuticorin new harbour in the Gulf of Mannar (GOM) using available navigation depths up to south east of Pamban Island, pass through a channel created in Adams Bridge within the International boundary and proceed parallel to the International Medial Line for fishing rights as the Bengal Channel.

This project was initiated by the Government of India in 2004 which has been revived in 2014. The project is to be executed by the Tuticorin Port Trust with the help of Dredging Corporation of India (DCI). India does not enjoy a continuous navigable sea route in its territorial waters, Indian vessels must circumnavigate Sri Lanka to travel from India's western to its eastern coast.[3]This project was necessary to reduce the turning time taken by the vessel to reach the port. Due to the presence of some reefs in the route, the efficiency and productivity of the port was lowered. The project establishes a Sethusamudram Corporation Limited go carry out the operations of the project. Though the project has been revitalized, its execution remains a debatable question.

Addressing the issue of maritime security among the South Asian region is of recent origin. In 2010, issues relating to maritime security and piracy were proposed to be included in the negotiations of SAARC. For both India and Sri Lanka, the surrounding maritime environment continues to contribute to national interest.[4] Given the slow progress of maritime cooperation among the SAARC, the maritime issues between India and Sri Lanka must be resolved by the nations on a bilateral basis. Both countries must come up with the mechanism for resolving such issues focusing on areas of maritime security, piracy, naval cooperation.

Dispute Between India and China Over South China Sea

Territorial disputes in the South China Sea involve both island and maritime claims among several sovereign states within the region, namely Brunei, the People's Republic of China, the Republic of China (Taiwan), Malaysia, the Philippines, and Vietnam. There are disputes concerning both the Spratly and the Paracel islands, as well as maritime boundaries in the Gulf of Tonkin and elsewhere. There is a further dispute in the waters near the Indonesian Natuna Islands.[1]

The interests of different nations include acquiring fishing areas around the twoarchipelagos; the potential exploitation of suspected crude oil and natural gas under the waters of various parts of the South China Sea; and the strategic control of important shipping lanes.Shangri-La Dialogue serves as the "Track One" exchange forum on the security issues surrounding Asia-Pacific region including Territorial disputes in the South China Sea. Council for Security Cooperation in the Asia Pacific is the "Track Two" dialogue on security issues of Asia-Pacific.

Chinese objection to Indian naval presence and oil exploration:

On 22 July 2011, the INS Airavat, an Indian amphibious assault vessel on a friendly visit to Vietnam, was reportedly contacted 45 nautical miles from the Vietnamese coast in the disputed South China Sea by a party identifying itself as the Chinese Navy and stating that the ship was entering Chinese waters. A spokesperson for the Indian Navy explained that as no ship or aircraft was visible, the INS Airavat proceeded on her onward journey as scheduled.

The Indian Navy further clarified that "[t]here was no confrontation involving the INS Airavat. India supports freedom of navigation in international waters, including in the South China Sea, and the right of passage in accordance with accepted principles of international law. These principles should be respected by all."

In September 2011, shortly after China and Vietnam signed an agreement seeking to contain a dispute over the South China Sea, India's state-run explorer, Oil and Natural Gas Corporation (ONGC) said that its overseas investment arm, ONGC Videsh Limited, had signed a three-year agreement with PetroVietnam for developing long-term co-operation in the oil sector, and that it had accepted Vietnam's offer of exploration in certain specified blocks in the South China Sea[22]

In response, Chinese Foreign Ministry spokesperson Jiang Yu, without referring to India by name, stated as follows:

"China enjoys indisputable sovereignty over the South China Sea and the island. China's stand is based on historical facts and international law. China's sovereign rights and positions are formed in the course of history and this position has been held by Chinese Government for long. On the basis of this China is ready to engage in peaceful negotiations and friendly consultations to peacefully solve the disputes over territorial sovereignty and maritime rights so as to positively contribute to peace and tranquillity in the South China Sea area.

We hope that the relevant countries respect China's position and refrain from taking unilateral action to complicate and expand the issue. We hope they will respect and support countries in the region to solve the bilateral disputes through bilateral channels. As for oil and gas exploration activities, our consistent position is that we are opposed to any country engaging in oil and gas exploration and development activities in waters under China's jurisdiction. We hope the foreign countries do not get involved in South China Sea dispute."

International law can be an effective way to peacefully resolve maritime disputes, but only when the parties have military capabilities to make war too costly. The Indian Maritime Law has witnessed considerable evolution in the past few decades on law relating to the maritime jurisdiction demarcating the territorial boundaries.

Sea as the most widely used means of trade and transport has played a pivotal role in the growth of the Maritime Industry which lead to the economic growth of a nation. However, in India scant laws are available which specifically deals with crimes and offences that happen at the high seas. Crimes like piracy have a historical root but the present times this crime has witnessed great technological advancements and with this more incidence of piracy are reported in the Indian ocean.

India has been a signatory to the UNCLOS which has now assumed the character of an international customary law. Yet very limited efforts have been put on developing the domestic maritime law. Laws dealing with crimes of the high seas are very limited and India still applies IPC laws in such cases. Introduction of the piracy bill is one of the major step towards that India has taken towards this end.

Following are the provisions of the bill:
In 2012, the government of India introduced for the first time an exclusive law dealing the offence of piracy and providing punishment for the same. Despite being a member of the UNCLOS, India did not have a separate legislation dealing with piracy.

The International Maritime Bureau (IMB) has identified Indian Ocean as a ‘piracy prone area'[5] In order to combat the problem of piracy a bill on Piracy Bill, 2012 has been introduced which has not yet come into the force. Following are main features of the bill:
  1. the bill defines the offence of piracy[6] as:
    • any illegal act of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
      1. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
      2. against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
         
    • any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts, making it a pirate ship or aircraft;
    • any act of inciting or of intentionally facilitating an act described in above clauses;
    • any act which is deemed piratical under the customary international law
       
  2. Under the bill, the maximum punishment provided for committing the offence of piracy is death penalty in case of any death caused due to commission or attempting of the offence of piracy. For committing an act of piracy, the maximum punishment prescribed under the bill is imprisonment for life.[7]
     
  3. Any attempt to commit piracy is also punishable under the bill for imprisonment for a term which may extend to fourteen years and shall also be liable to fine.[8]The bill also prescribes punishment for any accomplice to an act of piracy to imprisonment for a term which may extend to fourteen years and shall also be liable to fine.[9]
     
  4. The Bill also contains a provision relating to inclusion of extraditable offences.
     
  5. The Bill also empowers the state to arrest the persons responsible for the commission of offence of piracy and seize the pirate shipment or aircraft or ship or aircraft under the control of pirates.[10]


Although, the bill marks a significant step towards strengthening the maritime security in India, it however, suffers from the following shortcomings:

  1. The bill is silent about the powers and procedures for navy and coast guard officers in tackling the offence of piracy with regard to power to arrest and seize the shipment despite empowering the state for arrest and seizure relating to the offence of piracy.
     
  2. The bill is silent on the problem of presence of Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (‘SUA Act') being a domestic legislation of India is an overlapping legislation. The SUA Act, also makes the act of piracy a punishable offence. This Act provides for a more comprehensive and broad definition of maritime offences which also covers the act of piracy.[11] Harmonious construction of the two acts is required and in order to facilitate the same, offences under SUA Act must only be utilized solely to prosecute crimes of terrorism on sea even though it can include acts of piracy within its ambit.[12]
     
  3. The definition of ‘piracy' under the bills includes within itself any act which is deemed piratical under the customary international law[13]. First, piratical acts of a less serious nature, such as clandestine thefts, should be incorporated into the definition. In order to facilitate this, a wider set of penalties should be assigned so that less grave crimes of piracy can also be prosecuted under the Bill.[14]

With the analysis of the case laws and the bill it can asserted that the maritime laws in India is at a very nascent stage which needs much deliberation and focus. One of the most important needs of the time is to introduce the piracy laws into the domestic laws of India. Until piracy is recognized and dealt with as a crime by the legislatures India's maritime law will be considered incomplete and ineffective

Bibliography
  1. http://www.atlanticcouncil.org/blogs/new-atlanticist/maritime-disputes-and-international-law
  2. http://www.indexmundi.com/india/disputes_international.html
  3. http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/mom_0506_cambodia.pdf
  4. http://www.thehindu.com/news/national/bangladesh-wins-maritime-dispute-with-india/article6191797.ece
  5. http://timesofindia.indiatimes.com/topic/South-China-Sea-dispute
  6. http://indianexpress.com/tag/south-china-sea-dispute/
  7. http://www.idsa.in/idsacomments/DelimitationofIndo-Bangladesh_rbhattacharjee_190814
End-Notes:
  1. Kush Kumar Gayasen, “India's Maritime Strategy and the Sino-India Interface N Sathiya Moorthy, “Contextualizing India-Sri Lanka Relations: Present and the Future”, Journal of Indian Ocean Studies, vol 2, (2014): 201.
  2. Smruti S. Pattanaik, “India –Sri Lanka Fishermen Problem”, IDSA, www.idsa.in/idsacomments/IndiaSriLankaFishermenProblem_gsen_180614.html.
  3. V. Srilatha, “India-Sri Lanka Maritime Cooperation in Indian Ocean-Prospects”, in India-Sri Lanka Relations: Strengthening SAARC, ed. R. Sidda Gous and Manisha Mookherjee (Hyderabad, Osmania University, 2013), 107.
  4. Id, 108
  5. ICC Commercial Services Crime, Piracy and Armed Robbery Prone Areas and Warnings (July 28, 2015) https://www.icc-ccs.org/piracy-reporting-centre/prone-areas-and-warnings.
  6. Section 2(e), Piracy Bill, 2012.
  7. Section 3, Piracy Bill, 2012.
  8. Section 4, Piracy Bill, 2012.
  9. Section 5, Piracy Bill, 2012.
  10. Section 13, Piracy Bill, 2012.
  11. § 3, Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002
  12. Anindita Pattanayak & Kartikeya Dar, Addressing Piracy Through the Indian Legal Framework, NALSAR Student Law Review 24.
  13. Section 2(e)(iv), Piracy Bill, 2012.
  14. Ibid.

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