Analysis of International Maritime Disputes of India: Law and Role of Courts

 Analysis of International Maritime Disputes of India: Law and Role of Courts

Despite of clearly defined boundaries, maritime disputes are common where countries contend for inhabited and uninhabited islands. Sea as a popular means of trade and transport has played a crucial role in the growth of the maritime industry which led to the economic growth of a nation. Maritime security has always been a vital concern for the nations with coastal boundaries. The adoption of United Nation Convention on the Laws of Sea, 1982 (UNCLOS) acknowledged international crimes on high seas such as piracy.

Being a growing maritime power and with the coastline of around 7500 km, maritime security measures were essential for India. The recent soar in the number of piracy affairs and other international crimes near the Indian Ocean has revealed India to maritime warfare. However, in spite of India being a signatory to UNCLOS, minimal laws are available which explicitly deals with crimes and offences that happen at the high seas. Although the Indian legal framework provides various enactments and laws regulating the maritime activities such as division of maritime territories, ship arrests, merchant shipping, carriage of goods by sea etc., the Parliament of India has not been able to codify the law dealing with anti-piracy.

HISTORY

Although there was no codified law as the one that exists today, the rules and regulations concerning sea and maritime activities have been exiting since the 3rd millennium BCE. Before independence, the law relating to maritime laws in India were controlled by the British Government. The Coasting Vessels Act, 1838, Inland Stream Vessels Act, 1917, Admiralty Offences (Colonial) Act, 1849, Indian Registration of Ships Act, 1841, Indian Ports Act, 1908, Control of Shipping Act, 1947, are some of the regulations that dealt with maritime affairs in India.

Before India gained Independence, under The Colonial Court of Admiralty Act, 1890, the High Court of Bombay, Madras and Calcutta were the only judicial authorities competent to manage incidents related to Admiralty. The other courts of justice were prohibited from dealing with issues concerning the Admiralty. Under the Admiralty Courts Act, 1861, the three presidency courts were conferred the same powers as that of the High Court of England. The law affiliated to Admiralty jurisdiction is relevant even today under Article 372 of the Constitution of India. Now, the law associated to Maritime claim is provided under Section 4 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. Section 4 says that the High Court may exercise jurisdiction to hear and determine any question on a maritime claim, against any vessel, arising out of any dispute, mortgage, loss of life, loss or damage of goods, etc. The law relating to the arrest of a vessel in rem is provided under Section 5 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

What is Maritime law?

Maritime law can be defined as the body of law governing marine commerce and navigation, ship arrests, the carriage at of persons and property, and marine affairs in general; the rules governing contract, tort and workers' compensation claims or regarding commerce on or over water.

INDIA AND MARITIME LAWS

The triple-layered security system is created mainly to guard the Indian Coastline from maritime terrorism, piracy and to keep out foreign intruders. Firstly, the Indian Navy who is authorised for overall seaward security of long coastline. Secondly, the coast guards who protect the Exclusive Economic Zone (EEZ) 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.

For years India’s territorial waters and continental share were regulated by proclamations issued by the President of India. In 1976, after the 3rd United Nations Convention on the Law of the Sea (“UNCLOS”), was 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”) endowed to the Union of India. The Act categorically specifies the limits of the territorial waters, continental shelf, EEZ and other maritime zones of India. It also issues the legal framework prescribing the nature, scope and extent of India’s rights, jurisdiction and control of various maritime zones; the maritime boundaries between India and its neighbouring countries; and the exploitation, exploration, conservation and management of natural resources within the maritime zones. Further, the Act offered to undertake separate legislation in future, as and when required, to manage the regulations for exploration and exploitation of particular resources under Indian jurisdiction.

Consequent to the adoption of the Act, the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 (MZI Act) was enacted to halt poaching activities by foreign fishing vessels in the Indian EEZ. Under the MZI Act, the EEZ was safeguarded 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 adds to the Act.