Samir responds to the The Hindu “Who governs the high sea?”

by Samir Saran
July 2nd 2012, New Delhi
Please find here the original link to the article.
Please find here the original link to the article, Samir responded to.

At the outset it is misplaced to suggest the original opinion in any way lauded the use of firearms or the actions of the Italian Marines. It expresses apprehension that such incidents are likely to recur as armed response to threats on the high seas is seen as a viable one.

The reference to SUA is entirely misplaced. SUA was enacted pursuant to a U.N. Convention to contain acts of terrorism. The application of SUA requires sanction of the Union government. The Kerala government has for this reason made a statement in the Kerala High Court that it will withdraw the charges of SUA against the Marines.

However, one fact may clear the air further and that is the reality that St. Antony (the vessel from Kerala) is a fishing vessel and Enrica Lexie is a merchant vessel with Military Vessel Protection Detachments deployed to protect against piracy in accordance with U.N. Conventions and other laws.

“Incidents of navigation”, should not be misread as the term is interpreted in accordance with the scheme of UNCLOS, especially Article 94(7) which describes various “incidents of navigation” and includes within its fold instances such as the present one. While Article 97 applies to the High seas, Article 58(2) of UNCLOS pertaining to the EEZ specifically incorporates and extends Article 97 and others to the EEZ.

The flag state jurisdiction under UNCLOS is based on the floating territory principle viz., a ship under the flag of a state is under the protection of that state and is subject to the laws of that state. The Indian Merchant Shipping Act excludes fishing vessels from flying the Indian flag. St. Antony is not registered under the Merchant Shipping Act and was not flying the Indian flag. St. Anthony in fact is registered as a mechanised fishing boat and was authorised to ply only within Indian territorial waters, i.e. within 12 nautical miles. Thus the fact that the incident occurred outside Indian territorial waters is not in dispute. Thus there is absolutely no dispute about the jurisdiction of the flag state.

The reliance on the Lotus case is erroneous. The evolution of international law after the 1927 Lotus case has eluded the authors and UNCLOS, 1982 specifically derogated from the principles laid down in the Lotus case and gives exclusive jurisdiction to the flag state (Italy).

Italy is on thin ground on the high seas

Please find here the original link to the article.

Samir Saran and Samya Chatterjee have argued in their article “Who governs the high seas?” (June 26) that India is wrong in prosecuting the two Italian marines aboard the tanker Enrica Lexie for shooting two Indian fishermen. Italy’s contention — which Saran and Chatterjee have echoed — is that Enrica Lexie was under its flag. Hence, in accordance with the U.N. Convention of Law of Seas (UNCLOS), Italy should try the two marines. India’s position is that St. Anthony, the fishing vessel aboard which the two fishermen were killed, was an Indian vessel; and under Indian law and the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention), India has jurisdiction. India and Italy are signatories to both these conventions. But while Italy needs to show exclusive jurisdiction, India only needs to show that it also has jurisdiction.

Saran and Chatterjee do not discuss a larger question that provides a context to this case. This is the issue of Somali piracy and the danger of putting armed guards on board merchant vessels. In their view, the Italian marines were doing something laudable — controlling Somali piracy. What they overlook is the complaint of Somali fishermen that trigger-happy armed guards have been preventing them from fishing.

The collapse of the Somalian state meant that it was no longer able to protect its waters. To a great extent, the present problem of piracy has its origins in the complete collapse of the fishing industry. This collapse can be clearly linked to illegal fishing in Somali waters by foreign fleets and the dumping of toxic wastes.

For the rest of the world, the collapse gained importance only because the consequence — Somali piracy — threatens the trillion-dollar maritime industry. International piracy caused an estimated loss of about $7 billion in 2011 globally. As against this, the total annual illegal fishing losses worldwide is between $10 billion and $23.5 billion. This is the other “piracy” to which the international community is turning a blind eye.

The trial question

In the Enrica Lexie imbroglio, the controversy is not about the facts of the case, but about the question of who has the right to try the two Italian marines. The Italian side — which Saran and Chatterjee endorse — has invoked UNCLOS to assert its jurisdiction. Article 97 of UNCLOS, which Saran and Chatterjee quote, refers to a “collision or incident arising out of navigation” on the “high seas”. The shooting of Indian fishermen was not a collision; nor was it an incident arising out of navigation. It also did not take place on the high seas. At best it took place in India’s economic zone, which under UNCLOS is not defined as “high seas”. Italy is on thin ground here. Even if UNCLOS were applicable, the question of which is the flag state under UNCLOS remains. This requires a legal examination of where the “incident” occurred — on the Enrica Lexie or on the St. Anthony.

A case similar to the Enrica Lexie one was previously adjudicated by the Permanent Court of International Justice in 1927. In this case, a French steamer, the Lotus, collided with a Turkish vessel, the Boz-Kourt, on the high seas, killing eight of her crew and passengers. Upon the French vessel’s arrival in Istanbul, the French crew was tried by the Turkish authorities. France adopted arguments similar to those used by Italy in the present matter.

Holding against the French, the court, inter alia, observed that:

“What occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent” (Emphases added).

India has also claimed its jurisdiction under the SUA Convention. Dennis Hollis, who writes a well-known legal blog Opinio Juris, writes that under Article 6 read with 3 of SUA, India can claim jurisdiction — an opinion also endorsed by a number of experts in international maritime law.

What remains of Saran and Chatterjee’s argument is that the Italian marines are in the service of the Italian state and so have “sovereign immunity”. If we accept that Indian courts have jurisdiction over the matter, then we should leave it to the courts to decide on this claim.

Prabir Purkayastha is with the Delhi Science Forum. Rishab Bailey is a lawyer.

Non-Traditional Security, Politics / Globalisation

Samir chaired the ORF event ‘How should India meet the Maoist challenge?’, 2010

May 15, 2010
New Delhi

There is an urgent need to re-examine the current strategies of the government towards the Maoist challenge. This was noted during a roundtable discussion on “Meeting the Maoist Challenge: A Re-look at Current Strategy” on Friday, 14 May, 2010 organized by ORF. Focusing the discussion on how to tackle the Maoist challenge, it was noted that bad governance, misplaced development models, incorrect security measures, and perceptions of justice have all played a significant role in the growth of Maoism in India’s heartland.

Two issues came out prominently during the discussion. First, the current discourse on the Maoist challenge has been dominated by one view – the “paranoid view.” A consequence of this has been the complete absence of alternative views in the current strategies of the government. Second, contrary to the popular understanding and strategies, the discussion noted that the issue was not development but the sense of being denied justice and/or access to justice. Again, in contrast to the popular notion that the Maoist-Naxal problem was a law and order problem, it was noted that the issue is rather a problem of the obliteration of the politico-social structures of the tribal people.

Assessing the current strategies adopted by the Centre and various affected State Governments to counter the spread of the left wing extremist in more than 200 districts of India, a participant pointed out that the Salva Judum strategy of the government has been one of the main causes of the growth of Naxalism. It was pointed out that no rehabilitation and compensation has been made by the government of Chattisgarh to the people who had lost everything.

A participant pointed out that there is a general contempt among people towards the tribals which also was one of the reasons for the current state of affairs in the tribal areas. Another participant noted that there is a difference between cause and phenomenon. Commenting on the role of media, a participant noted that both print and electronic media have become indifferent to the Maoist issue. Further, the media has been fed by only one side – the police view – and reports often lacked balance.

The discussion questioned the “elitist development model” in tribal areas. It was noted that the current development model measured only by GDP growth and encourages corporate interests has destroyed the livelihood of the tribal people as most of their land were taken away for mining and other industrial projects. Both government and corporate had gone and uproot the tribals in their own land without showing any respect for the tribal people, their culture, their traditional knowledge, their civilisational strengths and their land.

The discussion suggested a multi-pronged strategy for the government. An admixture social, judicial, economic, political and security approaches have been suggested. Though the discussion also got trapped in the debate on what come first – security or development, it brought in other elements that go beyond the mere debate on security vs development.

It was noted that there was a need to broaden the medium of discussion on the Maoist challenge. It was felt that to develop a proper approach to tackle the issue, alternative voices need to be included while formulating strategies and policies. It was also noted that IB or police view alone is not enough but also one sided and that there was a need to include rights-based perspectives in government’s policies. It was noted that the issue was not pure economics but one of delivering rights.

On the political front, it was suggested that there was a need to re-look at the current governmental structures at the district and block levels. A participant suggested that the first priority of the government has to be to restore civil administration in the affected states and districts. A participant noted that change in government structures at the block level could be an effective way to ensure better representation of local people who are better placed to understand local issues and problems. Also, such as gesture could also give a sense of justice to the people. It was also suggested some autonomous areas could be created for the tribal people through that a sense of local control over its own people and resources could be ensured.

It was noted that there an urgent need for the government agencies to address the basic needs of the people. Education has been stressed in the tribal areas. It was suggested that the “elitist development model” in tribal areas need to be re-assessed. This mode of development has not created wealth but transferred wealth an there was a need for an alternative model of development where the local benefit.

The discussion has urged the government to deliver rights to the people. A participant has suggested that a judicial commission needs to be set up to address the issue of injustice that has been meted out on the people.

A participant noted that there was a need to re-look at the Salva Judum policy. Another participant pointed out that the traditional police force cannot deal with the Maoist challenge and there was a need for special training. A participant felt that there was a need for appropriate security force to deal with the Maoist problem to minimize collateral damage. Most of the participants felt the army should not be used also against the Maoists.

The discussion, presided by former Special Secretary Ministry of Home Affairs Mahendra Kumawat, ended with the note that development and security approaches need to include right-based approach in dealing with the Maoist challenge.

Participants included Mr. D.M. Mitra, Mr. Mohan Guruswamy, Dr. Nandini Sundar, Mr. Dilip Kumar, Mr. Arvind Kaul, Mr. Ashol Rastogi, Mr. K Subramaniam, Mr. Rajiv Sharma, Mr Saibal Dutta, Dr. Satish Misra, Mr. Samir Saran, Dr. Niranjan Sahoo and others.

In the News, Water / Climate

Human Security Report Project features ORF report on ‘Water Security in South Asia’

May 20, 2011

Linkto original websiteThis brief is largely based on several discussions organised at Observer Research Foundation over a period of time. These discussions were enriched by the presence of some of the well-known experts on water issues in the country, like former Union Minister for Water Resources, Dr. Suresh Prabhu, current High Commissioner of Bangladesh, Tariq Ahmad Karim, Mr. Sunjoy Joshi, Director, Observer Research Foundation, Ms. Clare Shakya, Senior Regional Climate Change and Water Adviser, DFID*, India, Mr. Samir Saran, Vice President, ORF and Dr. Dinesh Kumar, Executive Director, Institute for Resource Analysis and Policy, Hyderabad.

It is estimated that by 2030, only 60 per cent of the world’s population will have access to fresh water 1 supplies . This would mean that about 40 per cent of the world population or about 3 billion-people would be without a reliable source of water and most of them would live in impoverished, conflictprone and water-stressed areas like South Asia.

Water is already an extremely contentious, and volatile, issue in South Asia. There are more people in the region than ever before and their dependence on water for various needs continues to multiply by leaps and bounds. The quantum of water available, for the present as well as future, has reduced dramatically, particularly in the last half-acentury. This is due to water-fertiliser intensive farming, overexploitation of groundwater for drinking, industrial and agricultural purposes, large scale contamination of water sources, total inertia in controlling and channelising waste water, indifferent approach to water conservation programmes and populist policies on water consumption. SOURCE: Observer Research Foundation

Visit the Human Security Gateway to access the full text.

In the News, Water / Climate

Energy News Monitor: Climate Change and Human Security: Building a Framework for Action

by Samir Saran
April 2011

’Climate and security’ is a narrative with multiple layers and irresolvable complexities. At the very core, it continues to remain a western narrative on a looming and enduring eastern reality. This very comprehension of climate and security lends to discussions an externality that both hemispheres find hard to reconcile. But before we discuss this inherent paradox within ’climate security’-a term used to broadly describe situations, discussions, and elements that constitute security within and resulting from climate discourse and global climate action (modest at best), it may be useful to shape the boundaries of what be the core tendencies, trends, and impulses that define it.

The use of the terms ’climate’ and ’security’ in popular literature conjures up images of apocalyptic storms, landslides, extreme weather conditions, deluge, rising sea levels, melting glaciers, droughts, floods, cyclones, and similar weather phenomena that will ravage countrysides, inflict loss of life and property on an unimaginable scale, and result in mass exodus of populations. Be it the Hadley Centre Report that feeds this imagery through a more scientific and nuanced approach (Department of Energy and Climate Change) or the Stern Review that deploys this description to urge action by the developed and developing worlds (Stern 2007), the correlation between climate and such threats is unmistakable. This continues to be the defining imagination of security within the climate debate-hotly contested in terms of scale, size, and timelines. Images of death and destruction remain the central argument in the arsenal of a section of the political class, both in the West and East, who are vociferously urging action, incentives, and commitments around green technology, carbon trade, and innovation.

The success of the approach of linking climate action to impending apocalypse is debatable. Also at doubt is its ability to elicit appropriate response from policymakers and institutions. Deploying images of death and destruction within the climate debate, some argue, is ’climate pornography.’ It is forcefully stating the obvious, and as some would argue, also the inevitable (Ereaut, Gill, and Segnit 2006).The semantics of this argument are clearly built on the ’fear for life’ and ’fear of the future’, and seek to compel political action on this basis by gaining support in the larger public sphere.

This approach seemed to have helped create a surge in the constituency of those seeking climate action, particularly in the Western countries. This has also resonated among a specific constituency in the emerging nations, prior to the Conference of Parties at Copenhagen last year. However, it has been unable to stem the disenchantment of the larger public from matters of climate, and ’climate fatigue’ is setting in. As per a 26-country survey conducted by GlobeScan, concern for climate change is dwindling both in Europe and North America (GlobeScan 2010).

According to the survey, support to climate efforts in the UK fell from 59% to 43%, and in Germany from 61% to 47%. This narrative was also unsuccessful in appealing to large constituencies in emerging countries and the developing world. This was a result of poor communication, hypocrisy, and inherent dichotomy in the construction of the debate. This predominantly western narrative on climate security describes the outcomes (floods, cyclones, and so on) through a matrix of predictive dates and probabilistic scenarios. This was an instance of science attempting to steer policy that, as some argue, failed. Science is comfortable with probability and percentages, but people are not.

Communications on the matter often sounded weak and convoluted and the messages lacked clarity. They also lacked a central appeal, but more importantly, they failed to offer a response to the challenge. This was perhaps the biggest failure in the communication of the imminent dangers of global inaction. The articulation lacked considered and feasible global responses without which communications were read as scare mongering or where there were indications of certain action (read technology as the saviour) it was read as lobbying by vested interests. Global inattentiveness to ’climate and security’, in some sense, is as much about a failure to communicate, as it is about political differences and high economic stakes.

However, the hypocrisy within the narrative surfaces when this debate seeks placing the occurrence of extreme climate events and disasters into the future and when action is urged for the benefit of future generations (such as the US President Barack Obama’s exhortation to act on climate change or risk ’… consigning future generations to an irreversible catastrophe’).1 If, as climate science suggests, man-made emissions are able to subvert some of earth’s natural systems, then why are the current extreme events also not a result of the last two centuries of industrialization and rampant mercantile capitalist production? To many, the answer is simple yet hypocritical. The rich would have to foot the bill today for having squatted and ravaged the limited carbon space available as a common resource for global citizenry.

The impact and solemnity of the climate and security argument would have far greater weight if developed nations were obligated to make good the costs of life and property that are lost in the poorer regions today due to floods, cyclones, hurricanes. Yet while we hear a call for action on pricing carbon (which allows the rich to usurp more carbon space), incentives for technology and securing intellectual property rights, a determined and unequivocal call for damages of past action is missing. Ensuring that the countries with the means to respond to the suffering caused by such climate-related disruptions in poor and emerging countries, are allowed to absolve themselves of any responsibilityy, adds to skepticism, and weakens the most important argument-that of security-for global action.

Calls for global action sound hollow for another reason-the quantum of commitment made by the affluent nations. While the rhetoric of preserving the planet and human life is pitched high, what we see in terms of response is tokenism. To save the planet, the mightiest nations in the world got together at Copenhagen last year and then at Cancun recently, and committed to a paltry $100 billion each year by the year 2020.2 Let us now place this pledged amount against another recent response by the world community.

It is estimated that over $3 trillion was committed by the US, China, EU, and other countries to help the world economy or as some suggest, to ’save a few banks and large corporations’ (Barbier 2010). Three trillion to save the financial system and a 100 billion to save the planet-a fact that will undermine any security discourse within the climate narrative.

The other extremity of the climate-security narrative is less popular, but fast shaping as a significant line of thought. It focuses on elements of human security outside of the ’life and property’ paradigm. This debate places the human right to develop, grow, and aspire for a better life as a primary objective of climate action (Saran 2010). Here, too, the western narrative seeks to focus the discourse on poverty reduction within the objectives of climate action, thereby reducing the aspirations of billions in the emerging world to that of survival and poverty-line existence.

The fact that the industrial economies of the OECD and their high income populations were assisted and subsidized by carbon-intensive fossil fuels is cast aside as an act of ignorance, and the importance of the use of coal and gas in determining the pace at which India and other emerging countries develop is undermined by real but superficial arguments on ethics and shared responsibility. Poverty and growing aspirations are the two imperatives for any political system in emerging economies, and there would be political unrest if the leadership in these nations were to compromise on these.

However, the climate narrative is beginning to exert itself in the development processes of poor countries. Last year, we saw the US EXIM Bank deny a loan to a coal project in South Africa, and dither on a similar proposal for India citing potential emissions as the reason.

If climate positions were to become barriers to trade and finance flows, we could perhaps be discussing the most significant and impending security paradigm for the emerging world. The impact of climate negotiations, and green capitalism that is rearing its head, are some elements that will define climate and security for India and other developing countries.

Let me conclude by posing some queries that policymakers in India and other developing countries will need to respond to. Can we ignore the real threat to life and property from extreme climate events? Can the actions of India reduce this threat? How can we compel the West to vacate carbon space, and cap and reduce lifestyle emissions? How will we be able to allow billions in India and the developing world to aspire and, seek homes, cars, holidays and infrastructure? Should we? Why should the first-time users of electricity in India (nearly 500 million) have to make do with token solar lamps that work for only a few hours? Why should the poorer 80% of the world’s population be made to bear responsibility for expensive climate action going forward? How do we ensure continued access to critical finance and technology required to develop infrastructure, and afford prosperity to millions? How do we carve out a global regime that removes carbon squatters and makes them pay for their historical retention of carbon space? Why should the emerging world support or incubate new technologies, when all major economies seek to place green technologies at the centre of their plans of re-industrialization and manufacturing competitiveness?

Lastly, can we ignore the ’green economy,’ and does it really provide India an opportunity to take a position of leadership in this new world?

These are some of the competing dynamics of the ’climate security’ narrative that we will need to navigate if we are to develop a robust framework that realizes the gravity of the climate and security narrative, and articulates the differentiated needs of the diversely developed regions of the world.

References:
Barbier E B. 2010. A Global Green New Deal: Rethinking the Economic Recovery. Cambridge University Press. 171 pp.
Ereaut, Gill, and Segnit. 2006. Warm Words: How are we telling the climate story and can we tell it better? London: Institute for Public Policy Research.
Department of Energy and Climate. Avoiding Dangerous Climate Change. Met Office, Hadley Centre. Available at http://www.metoffice.gov.uk/publications/brochures/cop14.pdf
GlobeScan. 2010. ’Climate Concerns Decline since Copenhagen Summit: Global Summit.’ [Press Release 2 December 2010]. Available at: http://www.globescan.com/news_archives/cancun_radar/Cancun_climate_release.pdf.
Saran S. 2010. The Globalisation and Climate Change Paradox: Implications for South Asian Security. In South and Southeast Asia: Responding to Changing Geo-Political and Security Challenges, edited by K V Kesavan and D Singh. New Delhi: ORF-Knowledge World. 141-161 pp.
Stern N. 2007. The Economics of Climate Change: The Stern Review. Cambridge, UK: Cambridge University Press.

Notes:
1Barack Obama’s Speech at the United Nations. 22 September 2009. The Sunday Times. Available at http://www.timesonline.co.uk/to1/news/environment/article6844525.ece
2See report on Outcome of the work of the ad hoc working group on further commitments for Annex I parties under the Kyoto Protocol at its fiftieth session. Available at http://unfccc.int/files/meetings/cop_16/application/pdf/cop16_lca.pdf

Original link to Observer Research Foundation website.