Directorate of Distance Education NALSAR University of Law, Hyderabad

Centre for Aerospace & Defence Laws (CADL) Directorate of Distance Education NALSAR University of Law, Hyderabad Course Material P.G. DIPLOMA (ADVANCED MARITIME LAWS) 1.2.6. MARITIME LAWS AND CONTEMPORARY ISSUES Compiled by: Prof. (Dr.) V. Balakista Reddy (For private circulation only) NALSAR University of Law, Hyderabad (Print 2019) (For private circulation only) Page | 2 TABLE OF CONTENTS MODULE I – MARITIME PIRACY (07-47) 1.1. Defining and Understanding Piracy 1.2. Other Problems Faced While Prosecuting Pirates 1.3. Maritime Piracy Incidents in Figures 1.4. Maritime Piracy as an Organized Crime 1.5. International Response to Suppress Piracy 1.6. Emerging Risks Associated With Foreign Naval Intervention in HOA 1.7. IMO Guidance 1.8. India- Africa Maritime Regime And Steps Taken To Suppress Maritime Piracy: 1.9. India’s Bilateral Maritime Partnerships with Select African Countries in WIO 1.10. India’s Maritime Cooperation with African Littorals: Key Challenges 1.11. Incidents of Piracy That Took Place in India MODULE II – MARINE ENVIRONMENTAL LAW (51-113) 2.1 Marine Environment 2.2 Protection of Marine Environment under International Law 2.3 Role of the United Nations in Marine Environment 2.4 Memoranda of Understanding on Port State Control (MoUs) and MoU regimes 2.5 Role of the International Maritime Organization in Protection of Marine Environment MODULE III – MARITIME ACCIDENTS AND DISASTER MANAGEMENT (117-164) 3.1. Introduction to marine safety and emergency response 3.2. Marine Accidents 3.3. Causes for maritime accidents 3.4. Marine disasters 3.5. Need for disaster management 3.6. Theories for analysis of marine accidents, risk assessment and disaster management 3.7. Maritime Disaster management in India 3.8. Regulatory approaches in coastal management 3.9. Disaster Risk Management in Indian Ocean Region (IOR) 3.10. Some marine disasters/accidents Page | 3 MODULE IV – MARINE INSURANCE (167-210) 4.1 Marine Insurance Law and Marine Insurance Standard Form Contracts 4.2 Formation of a Marine Insurance Contract 4.3 Marine Risks 4.4 Excluded Risks 4.5 Marine Claims 4.6 Losses in Marine Insurance Law 4.7 Marine Insurance in India 4.8 Contract of Marine Insurance 4.9 Requirements of taking an Insurance Policy 4.10 Valuation of Insurance 4.11 Duties of the Parties 4.12 Rights of Insurer on Payment 4.13 Types of Marine Insurance & Policies MODULE V- MARITIME BOUNDARY DISPUTES (213-262) 5.1 Introduction 5.2 Maritime Boundary 5.3 Maritime Boundary Disputes 5.4 India’s Maritime Boundary Disputes with its Neighbors 5.5 India’s Position in the Indo-Pacific Ocean 5.6 Maritime Co-operation in the Indian Ocean Region 5.7 Indian Ocean and Maritime Disputes Page | 4 MODULE-I MARITIME PIRACY Page | 5 Page | 6 DEFINING AND UNDERSTANDING PIRACY Until a few decades ago, piracy was considered a matter of the past. The resurgence of piracy is a modern phenomenon. Despite increased public concern and media attention criminological literature on piracy is scarce; literature has been generated mainly from the fields of history, law, international relations, investigative journalism, and freelance writing. More recently with the escalation of piracy in Somalia, literature has emerged from maritime experts looking at piracy from a security perspective, focusing primarily on piracy as organized crime and its relation to terrorism. One of the few sociologists that has tackled the subject, Hua-Lun Huang, affirms that there is a serious lacuna in the formulation of theories or propositions “to assist modern sociologists or criminologists in demonstrating the relationships between, for example, piratical activities and socioeconomic/politico- geographic factors related to the exploration of the maritime environment”. Despite the reappearance of piracy, it is an act that is generally ill defined and little understood. This is despite the fact that piracy has a common global classification as hostis humani generis meaning enemy of all mankind criminals. It is the oldest crime over which there is universal jurisdiction. At the most basic level, piracy is aggravated theft or attempted theft at sea. This is suggested by the old German word for piracy ‘Seeraub’, literally meaning ‘sea robbery’. Historical context: The definition of maritime piracy has changed over time and varies depending on context. The development of the concept mirrors the politics of the day, illustrated by the separation of pirates from buccaneers and privateers in the past. In antiquity, the concept of pirate referred to anyone who attacked another at sea. The Greeks and Roman distinguished between robber pirates and pirate communities. Pirate communities were ones which indiscriminately seized persons or goods without a formal declaration of war. In Medieval times, the definition of pirates focused on theft at sea. To avoid situations of war, thieving between realms was protected under ‘letters of marque and reprisal’ by private entities where the purpose was retribution. By the seventeenth century, the idea of labeling a society as piratical was no longer acceptable. Instead pirates were seen as individuals who formed groups and were united in wrongdoing, these groups were not representative of a state. In 1934, piracy was recognized as more than theft, the British jurist C. S. Kenny described it as “any armed violence at sea which is not a lawful act of war” (1934). However Kenny’s definition is not the legal definition, perhaps because it is too broad. Page | 7 Definition of Piracy: The first international codification of piracy occurred in the 1958 Geneva Convention on the High Seas (Article 15) and the later in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (Article 101). According to these piracy consists of: a) Any illegal acts of violence, 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: i. On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft ; ii. Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; b) 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; c) Any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b) of this article. Unlike Kenny’s definition, the convention limits acts of piracy to those for private ends, to incidents that occur outside the jurisdiction of any single State and sets a requirement for a ship-to-ship (or aircraft) conflict. According to Joseph Bingham, who prepared the Comment to the Harvard Draft Convention on Piracy, the public ends element of the definition excludes “all cases of wrongful attacks on persons or property for political ends, whether they are made on behalf of states or of recognized belligerent organizations, or of unorganized revolutionary bands”. This limitation effectively excludes from international jurisdiction (under this convention) any acts of piracy that are condoned or organized by nation states as well as acts of terrorism that are directed at the source state. Although UNCLOS focuses on the motivation of the perpetrators it does not provide any guidance as to what constitutes a private motivation or how to classify an event where private and public motivations are comingled. UNCLOS limits the act of piracy to transgressions committed on the high seas. The high sea is the area of the ocean that is outside of the territorial jurisdiction of a nation state, also known as international waters. It is important to note that the focus of UNCLOS was not piracy; primarily it was concerned with redistribution of resources to the new nations that were created with the end of colonialization, whilst simultaneously ensuring freedom of navigation for the more established fleets of former colonial powers (Anderson, 1995). Of the 327 articles in UNCLOS, only seven deal with piracy. Largely this is because at the time of drafting piracy was regarded as a problem of the past. The drafters of UNCLOS were concerned with issues Page | 8 of sovereignty not piracy which may explain why they failed to set any requirements for nations to legislate comparable domestic legislation on piracy and neglected to require any form of cooperation between nations when dealing with maritime predation. UNCLOS provides that all States have an obligation to cooperate to the fullest possible extent in the repression of piracy (art. 100) and have universal jurisdiction on the high seas to seize pirate ships and aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board (art. 105). Article 110, inter alia, also allows States to exercise a right of visit vis-à-vis ships suspected of being engaged in piracy. These provisions should be read together with article 58(2) of UNCLOS, which makes it clear that the above-mentioned articles and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with the provision of UNCLOS relating to the exclusive economic zone. It is also important to distinguish the crime of piracy from armed robbery against ships, which can occur within the internal waters and territorial sea of a coastal State. In accordance with Part II of UNCLOS, in cases of armed robbery against ships, primary responsibility for enforcement normally falls on the coastal State. Armed robbery against ships also constitutes an offence under the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention) and, in some cases, the 2000 United Nations Convention against Transnational Organized Crime.

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