Italy India Shooting Issue

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  • Topic: Territorial waters, United Nations Convention on the Law of the Sea, Jurisdiction
  • Pages : 18 (6303 words )
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  • Published : May 1, 2013
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ISSUE 1) ICJ jurisdiction-
The marine shooting incident which occurred on 15th February, 2012, was an incident between two nation States and any dispute arising there from would be governed by the principles of International Legal Responsibility under which the rights and obligations of the parties will be those existing between the Republic of India and the Republic of Italy.

NO PROVISION OF MARITIME ZONE ACT APPLIES ALONE, MUST BE IN CONSONANCE WTH UNCLOS:

The Scheme of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, hereinafter referred to as "the Maritime Zones Act, 1976", contemplates limited jurisdiction of the Central Government over each of the Maritime Zones divided into the "Territorial Waters", the "Contiguous Zones" and the "Exclusive Economic Zones". Sections 3, 5, 7 and 15 of the Act contemplate the existence of such division of zones as a direct consequence of rights guaranteed under Public International Law, including the United Nations Convention on the Law of the Sea, hereinafter referred to as, "the UNCLOS".

The extent of jurisdiction of a State beyond its coastline is provided in Section 3 of the Maritime Zones Act, 1976. Sub-section (2) of Section 3 indicates that the limit of the Territorial Waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline. Section 5 of the aforesaid Act provides that the Contiguous Zone of India is an area beyond and adjacent to the Territorial Waters and the limit of the Contiguous Zone is the line every point of which is at a distance of twenty-four nautical miles from the nearest point of the baseline referred to in Sub-section (2) of Section 3. Section 7 of the Act defines Exclusive Economic Zone as an area beyond and adjacent to the Territorial Waters, and the limit of such zone is two hundred nautical miles from the baseline referred to in sub-section (2) of Section 3. In respect of each of the three above-mentioned zones, the Central Government has been empowered whenever it considers necessary so to do, having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the said zones.

The publication of a Notification by the Ministry of Home Affairs on 27th August, 1981, under Sub-section (7) of Section 7 of the Maritime Zones Act, 1976, extending the application of Section 188 of the Code of Criminal Procedure, 1973, to the Exclusive Economic Zone, created various difficulties, since the said Notification was a departure from the provisions of Part V of UNCLOS which provides that a coastal State enjoys only sovereign rights and not sovereignty over the Exclusive Economic Zone.

Referring to Part V of the Convention, which deals with Exclusive Economic Zones, it must be pointed out that Article 56 under the said Part indicates the rights, jurisdiction and duties of the coastal State in the Exclusive Economic Zone so as to include the State's sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds. The said Article also indicates that the State has jurisdiction in regard to:

(i) The establishment and use of artificial islands, installations and structures; (ii) Marine scientific research;
(iii) The protection and preservation of the marine environment; and other rights and duties provided for in the Convention. In regard to artificial islands,

It is submitted that it was necessary to construe the provisions of the Maritime Zones Act, 1976, in the light of the UNCLOS, which gives rise to the question as to which of the provisions would have primacy in case...
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