Analyzing the International Maritime Laws and Their Implication on the Indian Navy

ABSTRACT

Maritime Law, also referred to as Admiralty Law, consists of treaties, conventions as well as acts and case laws which govern the disputes rising amongst private marines as well as other nautical issues. Each Country has certain legislations which govern the procedural as well as substantive laws in relation to marines. India follows various acts for the same including the Merchant Shipping Act 1958 as well as the carriage of Goods by Sea Act 1925. Whereas Maritime laws deal with private marine personnel as well as vessels, naval laws, created by the governments of countries manage the naval forces providing privileges and imposing sanctions upon them. In India, the Navy Act 1957 governs its forces. However the issue arises upon the disputes between private marines and naval officers. Section 141 of the Navy Act 1957 provides the commanding officer while conducting a court martial to exercise the powers of Criminal Procedural Code 1973 in cases of persons involved who are not subjected to naval laws. But very little information is available in relation to implications of any maritime laws upon the Indian Navy with respect to disputes, jurisdictions and applicability procedures. Therefore the prime focus of this paper would be to analyze the above mentioned issues. The paper will firstly talk about the history of Admiralty Law in India, as well as the development of the naval laws. Then it will analyze in depth the United Nations Conventions on the Law of the Sea, after which it shall be observed with respect to the Navy Act 1957 (India). In the end, it will answer the research questions posed in the beginning of the paper. At the end, the paper will pose certain problems that were faced upon analyzing the acts, as well as possible solutions so as to conclude.

Keywords: Applicability, Jurisdiction, Maritime Law, Navy Act

Introduction and Historical Background

Ever since the time of the Indus Valley Civilization, sea and river routes have been used as methods of transportation, for the purpose of trade. The first dock ever created was situated in Lothal, which was created with great precision to avoid deposition of silt. Ever since then, there have been numerous archaeological evidences to support the presence of docks and shipping throughout the world, under various kingdoms, for the purposes of trade. However, the Arthashastra holds the earliest example of codified laws present for the regulation of the sailors. In its chapter on naval forces, the Arthashastra describes in detail the administrative machinery of the department as well as the duties and responsibilities of the Neoadhyaksha, i.e. the Superintendent of Ships, who was also responsible for maintaining public peace, by enforcing the regulations, and booking all violators. During the 16th century rule of the Mughal Empire, from the times of Akbar to Aurangzeb, the navy was governed by the Mughal Admiralty laws. These have been described in detail in Ain-i-Akbari, the well-known treatise on the life and work of Akbar. According to the records left by Abul Fazl, elaborate regulations had been framed for the organization of the Naval Department, which were quite similar to those framed in the Arthashastra 2 millennia ago. 

However, the greatest impact on the laws of the sea was that of the British regulations created in India for the management of merchants as well as the Navy. Both of these branches are extremely distinguished in the current scenario, but origin back to the same developments. As is common knowledge, the British East India Company came to India for the sole purpose of trading spices, and during the process the need for discipline and laws was felt. Therefore, came the royal commissions, after which between the years 1686-1726 occurred the establishment of the Admiralty Courts, which involved 3 individuals out of which at least one had to be well versed in civil law.

In 1830 the ships of the British East India Company were designated as the Indian navy. However, in 1863, it was disbanded when Britain's Royal Navy took control of the Indian Ocean. About thirty years later, the few small Indian naval units were called the Royal Indian Marine (RIM). In the wake of World War I, Britain, exhausted in manpower and resources, opted for expansion of the RIM. Consequently, on 2nd October 1934, the RIM was reincarnated as the Royal Indian Navy (RIN). The shipbuilders at the Bombay Dockyard built ships like HMS Hindostan and HMS Ceylon, inducted into the Royal Navy. The historical ships made by Indian shipbuilders included the HMS Asia, the HMS Cornwallis, and the HMS Minden.In 1947, the Republic of India’s navy consisted of 33 ships, and 538 officers to secure a coastline of more than 4,660 miles (7,500 km) and 1,280 islands. The Indian navy conducted annual Joint Exercises with other Commonwealth navies throughout the 1950s. In the private sector, The Merchant Shipping Act, 1958 was enacted for certain regulations as well as development in this field. Apart from this Act, we had various laws implemented by the British Government such as the Inland Steam Vessels Act, 1917, the Coasting Vessels Act, 1838 as well as various other laws and statutes. Today, the naval forces are governed by The Navy Act, 1957 whereas a number of legislations are in place for governance of marines.

Although both branches are extremely different from one another, their major purpose is the same: governance of and protection of the rights of the sailors. Therefore, it becomes imperative for researchers in this field to analyze the relationship between the two, and understand the complexities which arise upon the commission of a crime at the sea. Keeping that in mind, this paper poses the following questions:

1. What is the effect of International Maritime Treaties upon the Indian Navy?

2. What is the major ratification process of the International Maritime Treaties into India and to what extent are these applicable to the Naval Forces of India?

3. What are the jurisdictional issues that arise upon the analysis of the above questions?

International Maritime Laws

Throughout the course of history, a number of treaties have been created; resolutions have been passed for the governance of ships over the oceans. The IMO or International Maritime Organization is the global standard-setting authority for the safety, security and environmental performance of international shipping. Its main role is to create a regulatory framework for the shipping industry that is fair and effective, universally adopted and universally implemented. It has created various conventions to implement its framework. The most important treaty that has been implemented however remains that created by the UN, the United Nations Convention on the Laws of the Sea (UNCLOS). It can be called the “Constitution of the Oceans”, and rightly so, as it is built on the concept of ‘freedom of the seas’, and is therefore, a legal document.When it was initially convened in 1956, four treaties were signed:

1. Convention on the Territorial Sea and Contiguous Zone. This came into force in 1964.

2. Convention on the Continental Shelf. This came into force in 1964

3. Convention on the High Seas. This came into force in 1962

4. Convention on Fishing and Conservation of Living Resources of the High Seas. This came into force in 1966

Discussions on the 3rd Convention began by 1973, and came into force by 1994. It caters for the following:

• Limits of maritime zones.

• Rights of passage and navigation.

• Peace and security on the seas.

• Conservation of marine and living resources.

• Protection and preservation of the marine environment.

• Marine scientific work.

• Dispute settlement procedure.

The third as well as the last agendas are the most relevant to this paper, and hence it shall be discussed in detail.

Part 2,Section 3, Subsection B of the UNCLOS talks about the rules which are applicable to Merchant ships and government transportation ships, which includes Articles 27-28, describing the criminal and civil jurisdictions in relation to foreign ships respectively. Herein the concept of internal waters, territorial waters as well as the coastal State is raised. However these articles only talk about the passage of the ship through territorial waters.

Part-2, Section 3, Subsection C talks about warships, specified further by Articles 30-32 which require the warships to comply with the laws of the coastal state, which if not abided by and result in damages, would result in the requirement of it leaving the coastal state immediately, as well as protecting a warship’s immunity. However, in none of these provisions is it clear as to what would happen in case of a conflict between the foreign ship as well as a coastal State’s ship. Furthermore, Part-7 Section 1 Article 87 of this convention explicitly mentions the Freedom of High Seas. Clause 2 vaguely talks about these freedoms which must be exercised with “due regard for the interests of other States” and also with “due regard for the rights under this Convention with respect to activities in the Area”, not clearly defining what duties arise between the ships. Article 95 talks about “immunity of warships from all states except the flag state”. Right below which, Article 97 talks about the Penal jurisdiction in matters of collision or any other incident of navigation, stating that “no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national”. This can be interpreted as the flag state of either party. Article 287 paves the way for a choice of procedure that can be followed in case of a conflict. However, the question arises when a warship is involved. India ratified this treaty in 1995. Therefore, it agreed to follow all the provisions of the UNCLOS. Hence the paper can take a look at its implications in the Indian Naval Forces.

The Navy Act 1957

Section 78 sub-clause 2 clearly states,” A person subject to naval law who commits an offence of murder against a person not subject to army, naval or air force law or an offence of culpable homicide not amounting to murder against such person or an offence of rape in relation to such person shall not be tried and punished under this Act unless he commits any of the said offences—

(a) while on active service;

(b) at any place outside India;

(c) at any place specified by the Central Government by notification in this behalf.”

Section 97 provides the constitution of Court Martial, and Clause 7 of this article specifically states that only an officer over the rank of Lieutenant after attaining the age of 21 is permissible to form a member of the court martial.

Section 141 provides the commanding officer of a court martial to exercise the powers of Criminal Procedure Code 1973 in cases of persons involved who are not subjected to naval laws.

Throughout the act however, there is no mention of conflicts between naval officers and international marines, as well as no jurisdictional issues have been raised.

Analysis

The questions asked in the paper were simple, yet one could not find relevant answers to it. Warships have immunity in the high seas, meaning they are answerable only to the flag state, their own nation. However, as mentioned quite a few times in the paper, there seems no relevant section or article which talks about the wartime ships and what consequences they face upon a conflict with a private ship. Even though there is an explicit provision for court martial and a section in the Navy Act which provides for exercise of the provisions of CrPC in case of non naval personnel involvement, the jurisdiction is still not understood completely. In spite of Article 287 of the UNCLOS, some lacuna remains regarding its implications upon the Indian Navy.

Conclusion

Today, there are two separate laws which are followed by both the Indian Navy and marines of the sea, whether they be domestic or international. The major issue is that of nations who have not ratified the treaty. If and when conflict does take place, it would be extremely difficult to accommodate these nations. And for the Indian Navy, this would be a major drawback. Therefore, in one’s opinion, naval laws for this nation must include at least a few provisions relating to International Maritime laws and the regulations given by IMO, their applicability and their jurisdictions. Along with this, a Convention must be created on a worldwide level, so as to ensure that ambiguity does not arise. A binding legal document which is applicable to all nations with no exceptions must also be created, for a clearer view on the issue. Only through such a manner, will maritime laws be connected to the naval laws, which is a requirement in this Century.

Bibliography

1. Furtado, Rebecca; Maritime Laws in India: Interpretation and Analysis; July 24, 2016

2. International Maritime Organization; http://www.imo.org/en/About/Pages/Default.aspx

3. A Constitution for the Oceans,” remarks by Tommy T B Koh Singapore, President of the Third United Nations Conference on the Law of the Sea, http://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf;July 23, 2015

4. THE NAVY ACT 1957

5. UNITED NATIONS CONVENTION FOR LAWS OF SEA 1982