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Wednesday, December 01, 2021

When the seas part

India needs to build legal expertise to press its case in international maritime disputes

Written by Muthupandi Ganesan , Manuraj Shunmugasundaram |
Updated: August 12, 2016 4:40:09 am
Indian Navy, Coast Guard, merchant vessel Infinity I, MV Infinity I, goa, navy ship goa, coast guard goa, india news India participated in both proceedings and complied with the awards of the PCA, in contradistinction to China, which has refused to recognise the competence of the PCA to resolve the “nine-dash-line” dispute. (Source: ANI photo)

The recent decision of the Permanent Court of Arbitration (PCA) based in The Hague, Netherlands on South China Sea has brought into focus the utility of the international tribunals in resolving long-pending maritime disputes. The PCA verdict offers important lessons for India in securing its historic rights in its seas and protecting its maritime resources.

In recent years, India has participated in proceedings before the PCA on two instances. First, a dispute raised by Bangladesh regarding delimitation of the maritime boundary, and second, the Enrica Lexie dispute raised by Italy involving the prosecution of Italian marines for the killing of two Indian fishermen in February 2012. India participated in both proceedings and complied with the awards of the PCA, in contradistinction to China, which has refused to recognise the competence of the PCA to resolve the “nine-dash-line” dispute. China has repeatedly indicated that the PCA has no jurisdiction over disputes concerning territorial sovereignty and maritime delimitation between two states though the PCA decision recognises that it does not seek to rule on sovereignty, but only the applicability of the United Nations Convention on the Law of Seas (UNCLOS).

The Hague Convention of 1899 established the PCA with the specific object of ensuring to all peoples the benefits of a real and lasting peace by resolving international disputes through arbitral proceedings. China’s refusal to recognise the award is not the first such instance, as the US had refused to recognise the jurisdiction of the International Court of Justice in its dispute with Nicaragua in the 1970s.

So, has India adopted the correct strategy in recognising the jurisdiction of PCA in interfering in the Enrica Lexie case when the Indian court is in the midst of considering the legality of the acts of the two Italian marines accused of unlawfully killing two Indian nationals? Did India surrender its criminal jurisdiction to an international tribunal by engaging with Italy’s application to the PCA? These are fundamental issues with serious impact on the constitutional validity of court proceedings in India. In essence, the bail decisions of the Supreme Court has effectively been overridden by the “provisional measures” of the PCA in declaring that India should allow Sergeant Salvatore Girone to return to Italy pending the decision of the PCA on the question of India’s maritime jurisdiction to try the Italian marines.

Another case in the spotlight is MV Seaman Guard Ohio, where six British, 14 Estonian and three Ukrainian nationals were convicted by a trial court in Tuticorin in January 2016 of illegal possession of firearms in the Indian waters contrary to Indian Arms Act, 1959 and sentenced to five years rigorous imprisonment. The case raises a central and significant issue as to whether in fact the vessel was in the Indian waters, thus attracting the criminal jurisdiction of the Indian courts. In this case, the jurisdiction was upheld by the trial court but not the international doctrine of “innocent passage” as provided by Article 18 and 19 of the UNCLOS, whereby vessels in distress may enter territorial waters of a country, so as long as it is not “prejudicial to the peace, good order and security of the coastal state”. So, the jurisdiction of India to try the foreigners along with the application of UNCLOS may well be challenged based on the admissibility decision of the Enrica Lexie by the PCA. This calls for different high courts in India’s coastal states to be prepared to grapple with the complicated issues of international maritime laws and the applicability of determinations by international tribunals.

The strategy adopted by India at the PCA has not been above criticism. Jurists and diplomats have pointed out that India has failed to develop and nurture sufficient legal expertise in the field of international maritime law. Within the ministry of external affairs, there is no dedicated legal team which could be entrusted with conceiving and strengthening the government’s stand across fora.

The PCA comes into the picture in the context of the tensions in India-Sri Lanka waters, especially around Katchatheevu. Though the island was “ceded” to Sri Lanka by an exchange of letters in June 1976, a dispute has been brewing over its status following a spurt in the number of Indian fishermen being detained by the Sri Lankan navy for transgressing into that nation’s waters. Diplomatic efforts have not made any breakthrough and talks between fishermen have not yielded any result. India could settle this dispute by moving the International Tribunal for the Law of the Seas and the PCA. Settling India’s claim over Katchatheevu island and the traditional and customary fishing rights of Indian fishermen in the waters surrounding it will help both countries to move forward.

In the post-Enrica Lexie era, India must consider and clarify the role, remit and applicability of the PCA decisions, especially in cases where Indian courts have already been seized of the matter. Hopefully, the ministries of law and external affairs, in the aftermath of the Enrica Lexie case, will develop legal expertise to ensure that the decisions of the Indian judiciary are not nullified by orders of international tribunals.

Shunmugasundaram is a lawyer at Madras High Court and Ganesan is a barrister

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