Column in The Hindu: “Who governs the high seas?”

by Samir Saran and Samya Chatterjee
New Delhi, 26th of June 2012
Please find here the link to the original article.
Please find here the same article published in The Gulf Today.

The civilian trial of the Italian marines is affecting India’s reputation as an upholder of international law.

The International Maritime Bureau (IMB) — the anti-maritime crimes arm of the International Chambers of Commerce in its 2011 piracy report documented that there were 439 reported incidents of piracy worldwide, slightly better than 2010 during which 445 such incidents were reported. The number of such incidents is an indicator of the seriousness of this issue. Nations are responding collectively and individually. While there are macro discussions on collective action, armed escorts, insurance surcharge, armed private security personnel are already deployed by the shipping sector.

India’s growing energy and commodity needs depend on transport through sea routes with high levels of piracy, especially in the Horn of Africa. India will need to devise its own response to this challenge. Are government security personnel, say from the CISF, on board commercial vessels the answer? Or will private security deployment find greater resonance?

Larger issue

Keeping the above in mind, the recent incident of Italian marines shooting two Indian fishermen on February 15 — in what was clearly a case of response based on bad judgment against a perceived act of piracy — ought not to be viewed in an isolated manner. It should instead provoke a more considered discussion on the larger issue of increasing piracy threats, the response by states and shipping sector to piracy and other concomitant legal issues including freedom of navigation. This is important as such incidents are only likely to increase in frequency as armed response to piracy by state and private actors becomes more universal.

At the very outset two questions are important if one is to have any view on this incident. First, did the Italian marines in question act with authority, if so, whose? Second, even if they did, in whose territory does the enforcement of the allegation that they used excessive force lie: Is it the Indian Penal Code (IPC), or is it an international regime that India ratified and accepts?

The position on authority and status of the individuals, i.e. the two Italian marines, flows from an Act of Parliament of Italy, Law Decree no.107 dated July 12, 2007 converted into Law No.130 on August 2, 2011. This was enacted pursuant to the commitment of Italy to fight piracy under the United Nations Convention on the Law of the Sea (“UNCLOS”), pursuant to the U.N. Security Council Resolution 1816. Under this Act, there is the sanctioned presence of military navy detachment on board commercial vessels flying the Italian Flag. The accused were therefore not ex-servicemen, or hired guns, but serving marines deployed on the Italian ship MT Enrica Lexie.

The second critical issue is whether the Kerala police and courts are right in asserting the jurisdiction of the Union of India and hauling serving defence personnel of a foreign military through a civilian process to a local jail. Before we get into settled and accepted principles of international law, another side note must be discussed. There exists a defence cooperation agreement between India and Italy, operational since February 3, 2003. Both the nations have entered into this agreement with a desire to enhance cooperation as they were convinced that such engagement will contribute to better understanding of each other’s security concerns and consolidate their respective defence capabilities. Considering this stated intention to understand, appreciate and cooperate with each other, should the Italian marines not be recognised as military officers at the very least and thereafter given equal treatment to what would have been expected to be served to their Indian counterparts in a similar situation?

Kerala is trying in a civilian court two serving military men for actions they took in defence of their territories (floating), howsoever disproportionate the act appears post facto. Imagine trying a serving Indian soldier in an Indian civil court for an incident resulting from discharge of duty in naxal-infested areas, the northeast or Kashmir which is not deliberately criminal in construct. Section 104 of our Army Act enshrines that any such person accused of an offence must be given over to military custody.

Question of territory

Finally, what of Kerala’s assertion of territory? In the FIR and Remand Report filed by the circle inspector of police, including the report of the Coast Guard, it has been recorded that the incident took place outside the territory of India. After various iterations the Coast Guard finally confirmed that the alleged incident took place at 20.5 nautical miles from the coast line, a location outside the territory of India. The territorial jurisdiction extends to territorial water up to 12 nautical miles from the nearest point of the baseline; beyond territorial waters is the Contiguous Zone extending up to 24 nautical miles; and beyond that up to 200 nautical miles is the Exclusive Economic Zone of India. This is attested to by a reading of Article 3 of UNCLOS to which both India and Italy are signatories as well as the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (“Territorial Waters Act”).

The jurisdiction of criminal courts in India is governed by the provisions of the Criminal Procedure Code as well as the IPC which, inter alia, define the territory of India. The IPC has to be read with the international obligations of India in UNCLOS. Article 97 read with Article 58 (2) states that the courts in Italy have the sole and exclusive jurisdiction in the matter. Article 97 of the UNCLOS clearly states that penal jurisdiction in matters of collision or any other incident of navigation involving penal or disciplinary responsibility lies either with the flag state or the state of which such person is a national. Furthermore, the Act specifically states that no arrest or detention of the ship even in the course of an investigation can be ordered by any authority other than that of the flag state. The Republic of Italy will have jurisdiction under both the above-mentioned provisions.

However, in this instance, it needs to be mentioned that there is a case being built that the Italian marines failed to observe certain standard procedures laid out for countering attempted piracy attacks. The procedure includes promptly informing the IMB reporting centre about the incident, undertaking the best management practices to dissuade suspected pirates and adhering to the principle of “graduated use of force” instead of indiscriminate firing. The lack of adherence to such processes has muddled the waters in a manner of speaking. Nevertheless, this incident, even when seen as a misplaced case of piracy, will certainly be construed as a case of navigation incident leading to an offence unless other mala fide is demonstrated or alleged.

The Supreme Court of India, now apprised of this case, needs to clarify whether civilian courts in India have jurisdiction in such cases. There is an urgent need for a reasoned decision in this case based on international and other precedents keeping in mind India’s maritime interests in the South China Sea and the Horn of Africa. Additional Solicitor-General Harin Raval confirmed in open court that Kerala as well as the Union of India, indeed, did not have jurisdiction. Not surprisingly, ASG Raval was promptly removed from the case as provincial impulse took over. Most coastal states are ruled by a political dispensation different to the one at the Centre and hence domestic politics would plague such incidents in the future as well. An unambiguous interpretation from the Supreme Court is paramount, else India’s reputation as an upholder of international law will be undermined.

Samir Saran is Vice-President and Samya Chatterjee is Research Assistant at the Observer Research Foundation. Views are personal.

Books / Papers, Water / Climate

Identity and Energy Access in India – Setting contexts for Rio+20

by Samir Saran and Vivan Sharan

Please find here the original article as pdf file (starting from page 14): TERI Energy Security Insights.

In the two decades following the Rio Earth Summit of 1992, India has changed dramatically. It has transformed from a closed economy with empty coffers to one that is now far more integrated with the world and is widely viewed as one of the most important ’emerging economies’ that are shaping the 21st century. This year in June, stakeholders from across the globe will convene in Rio once again to discuss what is destined to be amongst the most important contemporary theme-sustainable development. The Rio+20 Summit, otherwise known as the United Nations Conference on Sustainable Development (UNCSD), will serve as an introspective pause, a chance to review development trajectories, and to realign priorities with reality and ambitions. India will find itself in the uncomfortable position of demanding greater development space and equity as a nation from the developed world, while having to reconcile stark domestic inequities amongst different social groups and income classes.
India’s views on the priorities outlined by the UNCSD were communicated in an official submission sent to the UNCSD Secretariat on 28th October, 2011. According to the document, India views universal access to modern energy¹ as “essential for improving the quality of life of the poor”. Yet the nation’s achievements in building capacities to generate or distribute energy in its various forms have been far from remarkable, and indeed far from what is needed to ensure universal access.

India produced around 811 billion units of electricity in 2010-2011,² with about 300 million people with no access to electricity³ and many more with only notional access. The per capita energy consumption in the country remained around 500 kilograms of oil equivalent, compared with a global average of 1800 (MoEF 2007).

India’s National Electricity Policy, which was notified in 2005, outlined the objective of ensuring “power for all” by 2012, an ambition which still remains far from fulfilled. The fact that only about half of the planned 78,577 megawatts of capacity additions took place over the course of the 11th Five Year Plan,⁴ exemplified an abject failure in implementation of transformational energy sector projects.

Such failures in implementing capacity-addition programmes, alongside attracting sufficient domestic and foreign private sector investments in the energy sector, are indicative of a larger political failure. The policy deadlocks that result in the lack of progressive reforms on land use and acquisition, foreign capital flows, and environmental norms have created an uncertainty that adversely affects investment decisions. This uncertainty, coupled with bureaucratic hurdles and the threat of disruptive regulatory and tariff policies, has managed to keep both local and international investors away from large scale, capitalintensive energy projects. This economic environment is also keeping away investments into smaller, off-grid solutions, which already suffer from an inherent lack of scalability and from the weak absorptive capacities within local communities.

This capability gap (in execution), due to a variety of reasons, is also why India is unable to commit to timelines and sought development space (read ‘time’) at the most recent international forum. The virtual deadlock at the Durban Climate Change Conference⁵ is, in part, a result of the inability of India to commit (or even envision) timelines to peak energy emissions, even for achieving global energy poverty thresholds.⁶ This is the real and hidden story of ‘Emerging India’. Perhaps it is time that this is placed on the table at Rio+20 and beyond, and that Indian positions on mitigation and capping of emissions are understood in this light.

The emphasis on universal access to ‘modern energy’ is an important aspect of the Rio+20 agenda, and it may be useful to understand the Indian landscape. According to 2009-10 Indian National Sample Survey (NSS) data from households, 75 per cent of rural India still relies on traditional energy, such as firewood, for cooking fuel; while over 33 per cent in the same category rely on kerosene for lighting (as a substitute for electricity).⁷

Over the period 2004-05 to 2009-10, as a result of focused rural electrification programmes such as the Rajiv Gandhi Vidyutikaran Yojna, access to electricity in rural areas did increase by over 10 per cent; and over the same period, access to LPG (for cooking) in urban areas has also shown significant improvement.⁸
While such numbers indicate that efforts to transform the energy demography have not completely stalled, the dependence on traditional and inefficient forms of fuels has not shown substantial decline. A case in point is the minimal 1.85 per cent decrease in dependence on firewood for cooking across India over the five-year period as shown in Table 1.

Yet these numbers only convey a macro position on energy access. Even cursory examinations of some of the surveys and reports suggest that there are deep and complex socio-economic issues at play that must be addressed and resolved by the policymaking apparatus in order to achieve real progress.

Identity and Access

India is a diverse country, with multiple identities gleaned through the prisms of religion, social groups, regions, language, ethnicity, economic capability, and many more. For the purpose of this paper, it is our intention to examine the state of energy access across social groups and economic classes: the two most prominent identities of modern India.

Even as India aspires to work within a more balanced and stable multilateral framework, and seeks the enhancement of local institutional capacities and capabilities, these alone are unlikely to address the fundamental causes of lack of energy access, and will require substantial levels of organic social transformation through local and national programs. These would need to focus on means of delinking energy access from income class so as to offer a modest quantum of modern energy as a universal right alongside food and education. This may allow certain transformations in the causal relationship that exists today between social groups and income classes (Table 2) and could potentially assist in bridging the socio-economic wedge between marginalized groups and the rest.

On studying the patterns of energy access in Table 3, it is quite apparent that Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Ba ckward Classes (OBCs)¹⁰ in rural areas are more reliant on firewood-a traditional cooking fuel, than ‘other’ social groups who increasingly use modern fuels such as LPG. Firewood has low cooking efficiency, and its use has detrimental effects on health (due to the proximate smoke that is generated) and environment (owing to deforestation and greenhouse gas emissions). The average dependency on firewood is between 76 and 88 per cent across the aforementioned disadvantaged groups, compared to close to 66 per cent for all ‘other’ groups¹¹ in rural areas. The data shows (Table 3) that the dependency on firewood has only increased over time¹² (between 2004-05 and 2009-10) in rural areas amongst the disadvantaged groups, while it has simultaneously shown a marginal decrease for ‘other’ groups.

Alongside the divergences amongst social groups, the difference in energy access across income groups also becomes instructive. The lowest income class is as reliant on firewood in urban areas as it is in rural areas. The startling fact is that the inequity in the urban areas has become more pronounced over the five-year period for the lowest income group shown in Table 4, with reliance on firewood increasing from around 69 per cent to around 76 per cent, and access to LPG decreasing from 5.8 to 1.83 per cent. Although absolute numbers in the lowest income groups have decreased significantly,¹³ affordability is still a key challenge.

Asymmetric patterns of access to electricity are also prevalent in the country. The percentage of households still using kerosene for lighting in rural areas averages between 30 to 40 per cent for disadvantaged groups-a striking figure considering that typical kerosene lamps deliver between 1 and 6 lumens per square meter (lux) of useful light, as opposed to typical western standards of 300 lux for basic tasks such as reading (Mills 2003).

A pronounced inequity of access among social groups is also observable across rural-urban areas in Table

5. While approximately 60 per cent of STs have access to electricity in rural areas (lower than the rural average as given in Table 1), around 87 per cent within the same social group have access to electricity in urban areas. The electricity access divide between the SCs, which are a significant social group in terms of urban population (Table 2), and the ‘others’ is around 9 per cent.

It is interesting to note that the level of access to electricity for SCs in urban areas is roughly equivalent to level of access for urban citizens in the MPCE bracket of INR 675 – INR 790 per month (Table 6), which is representative of a level much below even the conservative World Bank extreme poverty threshold (defined at US$ 1.25 a day).

In terms of energy access, the statistics suggest that SCs are pegged at a level of access for income classes below the average income of this social group. The share of kerosene for lighting has reduced significantly amongst the lowest income classes in rural areas over 2004-05 to 2009-10 (Table 6).

Meanwhile this trend is not witnessed in urban areas, where the inequity is starker over the same period with an increase in dependency on this fuel by 16.32 percentage points. Access to electricity for the lowest income class in urban areas has decreased from 62.1 to 44.56 per cent. This mirrors the trends in cooking fuels and is indicative of inherent inequities in the provision of access to modern energy in urban areas, alongside the implications of price rise and inflation.

While rural areas tend to suffer from an overall lack of access to modern energy, poor inhabitants in urban areas experience discriminatory barriers usually based on economic capacity. Such trends would challenge policies in the context of a sustainable development agenda, as India is likely to witness sustained and rapid urbanization in this current decade and beyond.

According to the provisional numbers released by the Census of India last year, 90,986,070 people were added to the urban population of the country,¹⁴ more than the number added to the rural population. The pace of movement to cities in India is unprecedented, and is on a scale that, outside of China, is unparalleled; with over 30 per cent of the total population already living in urban agglomerations. Our estimates suggest that around 44.5 per cent of the total decadal increase in urban population was a result of migration.¹⁵

Urban centres in India are veritable microcosms of the entire country-with a diverse mix of communities, cultures, and income classes ranging from the marginalized, disadvantaged classes to the expanding middle class-which is the primary driver of consumption and economic growth. Table 7 suggests that the share of OBCs in the overall urban population mix has increased substantially over the previous decade, while the proportions of the rest of the disadvantaged groups has almost remained the same, and ‘others’ have shown a marked decrease.¹⁶ The way that the various sections of society interact with each other, and perceive each other’s spaces and priorities would be an essential ingredient in India’s growth story going forward.

Conclusion

The trends highlighted in this paper demonstrate that existing inequities in access to modern energy amongst the lowest income classes and the disadvantaged groups tend to reinforce each other. The causal relationship between income classes and social groups acts as a self-fulfilling spiral, breeding inter-generational infirmities. Our analysis suggests that this is particularly true in urban areas. Given the fact that India will add over 200 million urban citizens over the next twenty years,¹⁷ increased policy emphasis must be given to urban areas by creating new ways to allow access to energy, especially for those who cannot afford it. The Rio Earth Summit of 1992 coincided with the beginning of India’s increased engagements with the international community. This current decade is likely to determine whether or not the country will succeed in narrowing income gaps, overcoming socio-economic inequities, and reducing poverty through decisive domestic actions. An economy and country which uses a majority of its scarce resources and limited infrastructure to serve only a minority of its people will find it increasingly hard to deflect arguments which suggest that its elite hide behind its poverty. India’s macro position on equity at international fora such as Rio +20 must be reflected in its domestic resolve to offer energy equitably to its diverse population. The imperatives of creating a ‘green economy’ must only follow and complement such efforts.

References

MoEF (2007) India: addressing energy security and climate change. Available at
http://www.moef.nic.in/divisions/ccd/

Addressing_CC_09-10-07.pdf.

IEA (2010) World Energy Outlook, Paris: International Energy Agency. Mills E (2003) Technical and Economic Performance Analysis of Kerosene Lamps and Alternative Approaches to Illumination in Developing Countries, California: Lawrence Berkley National Laboratory.

(Samir Saran is a Vice President and Vivan Sharan an Associate Fellow at Observer Research Foundation)

Courtesy: Energy Security Insights, TERI (January-March 2012)

¹ The International Energy Agency describes modern energy access as “a household having reliable and affordable access to clean cooking facilities, a first connection to electricity and then an increasing level of electricity consumption over time to reach the regional average”. The initial threshold level of electricity for rural households is assumed to be 250 kWh, while urban households are assumed to use 500 kWh per year on average. For more information, see
http://www.iea.org/papers/2011/weo2011_energy_for_all.pdf

² According to the Central Electricity Authority:
http://www.cea.nic.in/reports/yearly/energy_generation_10_11.pdf

³ The latest figure for the number of people without access to electricity is 272 million. This is calculated from the 66th round of the National Sample Survey.

⁴ 34,462 megawatts were added by the end of FY 2011.

⁵ The 17th Conference of Parties held in November, 2011, in Durban, South Africa.

⁶ The 2010 edition of the “World Energy Outlook” published by the International Energy Agency assesses two primary indicators of energy poverty at the household level-the lack of access to electricity and the reliance on the traditional use of biomass for cooking. As is highlighted in this report, India fares badly across both the indicators.

⁷ Data obtained from ‘India Data Labs’ at the Observer Research Foundation.

⁸ Throughout the paper we make the assumption that electrification is the closest available proxy for access to electricity and we acknowledge that access to the grid may not necessarily imply access to energy. In this context, we make conservative estimates of the overall lack of access to electricity.

⁹ The Government of India uses MPCE as proxy for income for households to identify the poor (who tend to have minimal savings).The proxy works well given that expenditure= income – savings. Similarly, we use MPCE throughout this paper to define income classes.

¹⁰ To be referred to as “disadvantaged groups” henceforth.

¹¹ 2010 Data obtained from ‘India Data Labs’ at the Observer Research Foundation

¹² Given that LPG use has increased in rural and urban areas, the simultaneous increase in the use of firewood can also be attributed to the substitution of other low efficiency cooking fuels such as dung cake. It is instructive to note that according to NSS data, the use of dung cake for cooking (all India) has decreased significantly over the discussed five year period amongst SCs and OBCs showing a 3.1 per cent and 5.51 per cent decline in each of the respective social groups.

¹³ According to NSS data

¹⁴ Provisional Population Tools, Census of India
http://censusindia.gov.in/2011census/censusinfodashboard/index.html

¹⁵ According to Census 2011, total decadal growth rate of population is 17.64 per cent. Using this conservative benchmark (urban decadal growth rate is 31.8 per cent); the total population increase in urban areas should have equalled 50,471,513, whereas the figure stands at 90,986,071.

¹⁶ It is important to note the caveat that the NSS relies on self-reporting of people about their Other Backward Classes (OBC).

¹⁷ According to the United Nation’s World Urbanization Prospects, 2009.