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Briefing Paper: Bihar’s third survey for land consolidation, Model Conclusive Land Titling Act and Aadhaar Number

Written By mediavigil on Saturday, September 14, 2024 | 7:38 AM

Bihar’s third survey for land consolidation, NITI Aayog's Model Conclusive Land Titling Act and biometric authentication through Aadhaar Number for conclusive land title
 
Bihar’s “third survey” for land consolidation which is underway linked to NITI Aayog's Model Conclusive Land Titling Act and biometric authentication through Aadhaar Number for conclusive land title. Significantly, any violation of fundamental rights and constitutional rights in the process of special survey for land consolidation will have no legal remedy in the Courts and Tribunals because the laws under which this exercise is being undertaken are under the Ninth Schedule and Article 31 B of the Constitution of India. It has implications for social policies guided by indiscriminate digital and biometric profiling.
 
The first survey happened during 1898-1920. Cadastral Survey was undertaken under Bengal (Bihar) Kashtkari Adhiniyam, 1885. The word 'cadastral' means a public record of the extent, value and ownership of land for purposes of taxation. This type of survey involves the preparation of village maps showing the boundaries of groups of holdings, large scale plans of survey fields showing the boundaries of each holding,topographical details and all measurements, and land registers giving the number, nature, tenure, area assessment and reputed ownership of each holding. This survey is repeated from time to time when changes occur in occupation and in the boundaries of fields particularly when such changes are too numerous to be dealt with by the ordinary revenue staff. The term 'cadastral' has been derived from the French word 'cadastre' which means public register of ownership of parcel of land. In fiscal terms, it means a register of properties according to their value. 
 
The second survey happened during the 1960s. This revisional survey of land started after the abolition of zamindari in 1950 but 12 districts of Bihar were not covered.“Revisional Survey” means survey operations initiated and conducted on the basis of the blueprint map of the cadastral survey in order to update the land records.
 
The third survey of the land for the consolidation of land is happening Bihar Special Survey and Settlement Act, 2011 and Rules under it and the related provisions of the Bihar Consolidation and Holding and Prevention of Fragmentation Act, 1956. The Bihar Special Survey and Settlement (Amendment) Rules, 2019 defines “Special Survey”. It means the construction of digital maps and construction and maintenance of record of rights to be made on the basis position of the property and ownership relating to the land with the help of modern technology by using aerial Photographs/Satellite Images - taking the latest position of land.” The special survey work has been pending at least since September 2020 after the amendment in the law in 2019.
 
Bihar special survey work for the raiyats/land holders has started in compliance with an Order No. 177 dated January 11, 2024 issued by the Directorate of Land Records and Survey, Government of Bihar and the order of Chief Minister dated July 3, 2024. Letter No.:- 252, dated August 24, 2024. A formal announcement in the format ofForm-1 was made for village-wise land survey and settlement between August 1-7, 2024. A village-wise Gram Sabha is scheduled between September 16-30, 2024. The survey exercise and publication of the final record of rights is required to be completed by August 24, 2025.

A review of the implementation of the special survey law and the related provisions under the Bihar Consolidation and Holding and Prevention of Fragmentation Act shows that the drawn out process of survey and settlement is likely to increase social unrest and increase the burden of civil and criminal cases related to land disputes. The claim that work of special survey and settlement, when completed, would reduce the cases of land disputes is not supported by any study. If over 60 per cent of incidents of crime in the state occur mainly because of land-related disputes, the spate of reported crimes amid the current special survey indicates that these incidents are likely to increase in near future if the exercise is not stopped in supreme public interest. 
 
A careful scrutiny of the provisions of these laws has revealed that there is no provision which is linked to land dispute related crimes. There has been no study undertaken in this regard in the State. It is not surprising that despite the announcement that the special survey work started in September 2020 and was to be completed by December 2023, it made no progress. There was another announcement made September, 2022 that the special survey and settlement of lands will be completed by November 2024. On July 3, 2024, Chief Minister sought completion of the Special Survey by July 2025. The special survey commenced in 45,862 revenue villages to digitize land data with a one-year time frame for completion. He repeated the observations he had made in September 2022 about the exercise being aimed at reduction of crimes related to land disputes. He repeated them again in July 2024. 
 
The framers of the law did not factor in the implications of these laws on non-resident Biharis who constitute over 15-20 million. Between 1951 and 1961, about 4 percent of Bihar’s population migrated. In 1971, 2 percent of its population migrated. In 1981,the total number of migrants more than doubled at around 2.5 million. During the inter-censual period between 2001 and 2011, around 9.3 million Bihari people migrated (Census 2011). Had the Census been conducted on time in 2021, it would have shown how these laws are unjust and insensitive to the just needs of non-resident Biharis and their resident families.
 
After its passage from the Bihar legislature, the Bihar Special Survey and Settlement Act, 2011 was published in the Bihar Gazette on December 22, 2011 subsequent to Governor’s assent on December 20, 2011. Its purpose can be ascertained only by a harmonious construction of relevant provisions of the Bihar Tenancy Act, 1885 (as amended till 2017) and Bihar Consolidation & Holding & Prevention of Fragmentation Act, 1956 (as amended in 1970, 1975 and 1982). The purpose of these laws is to undertake survey of the land and regularize the status of raiyat and create a record of rights.
 
The special survey is aimed at conducting surveys in the whole of the state using modern technology, aerial survey technique with ground verification by means of Digital Global Positioning System (DGPS), and Electronic Total Station (ETS). It is also aimed at preparation and maintenance of to-date record of rights for revenue and land resource management, computerisation of land records in uniform way to address gap between computer data and to-date ground realities, conclusive ascertainment of current title, possession and classification of lands - for agricultural credit, subsidy, relief and insurance related activities. It provides for identification & demarcation of public lands, Government lands, lands treated as common property resource and the like-to record it in the Record of Rights. It provides for Publication of record of rights and consolidation operations after special survey and settlement under the Bihar Consolidation & Holding & Prevention of fragmentation Act (as amended in 1975).
 
The Bihar Consolidation & Holding & Prevention of Fragmentation Act deals with the closure of the consolidation operations. As soon as possible, after fresh maps and records have been prepared and certificates of transfer have been issued to the raiyats under the scheme, the State Government shall issue notification in the Official Gazette stating that the consolidation operations have been closed in the unit. It prohibits transfer of lands. Section 37 deals with "Bar of jurisdiction of Civil Courts. It states: "No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act. " Section 37A states: "Authorities under the Act to be deemed courts of competent jurisdiction." Section 37 B states that "Authorities under this Act have powers and privileges as are vested in a Civil Court in certain matters". 
 
Section 14 of the Bihar Special Survey and Settlement Act provides for maintenance of records in digital form. Section 20 Act overrides all other laws. Section 21 makes State a party in “certain cases" but does not define “certain cases”. These laws put a bar on the jurisdiction of civil Courts which indicates the trend of executivisation of judicial functions. The provisions incorporated in the law during internal emergency (1975-1977) in this regard need to be subjected to a test of constitutionality. In order to restore peace in rural and urban areas of the State disturbed due to the special survey, there is a compelling need to stop the exercise and revise the law and rules in consultation with all the land rights holders and farmer organisations to make it more pragmatic. It must take people into confidence regarding the relationship between the special survey and the consolidation of land under the Bihar Consolidation & Holding & Prevention of Fragmentation Act, 1956. 
 
Notably, in November 2019, NITI Aayog's Model Conclusive Land Titling Act was framed. Its Section 56 states: Compulsory use of biometric identification-The Authority may, by notification from time to time in this regard, appoint a date from which it shall provide compulsory use of one or more than one particular personal identification system such as biometric authentication, Iris diagram or finger-print,or any other such method for establishing the identity of any person, for the purpose of any transaction or transfer of any Immovable Property recorded in the Register of Titles. Its Section 65 (2) (m) provides power of the State Government to make Rules states: "use of biometric authentication including AADHAR or other identification." NITI Aayog shared this Model Act and the Maharashtra Land Titling Act to the States for adoption.
 
A Bihar Gazette Notification dated May 9, 2023 stated that Aadhaar Number is voluntary but news reports in Bihar say, it is mandatory! The fifth sentence in the last paragraph of the Bihar Gazette notification dated May 9, 2023 clearly says, "Aadhaar authentication" is "on voluntary basis" for the registration of land. It has to be voluntary because of Sections 7 of the Aadhaar Act 2016. The second para of Sections 7 of the Aadhaar Act 2016 implies that Aadhaar is not mandatory for anything. It shows that due to some communication gap or ignorance of relevant legal provisions, there is misreporting of facts regarding Aadhaar being mandatory. But contrary to this notification Aadhaar Number is being demanded during the registration of land. Coincidentally, the Union Budget by the Union Finance Minister unveiled plans for 'Bhu-Aadhaar' unique IDs for rural land parcels and digitization of urban land records by 2027.
 
Bhu-Aadhar refers to Unique Land Parcel Identification Number (ULPIN). ULPIN is part of the Digital India Land Records Modernization Programme (DILRMP). It is a 14-digit identification number accorded to a land parcel based on the longitude and latitude coordinates of the land parcel and depends on detailed surveys and geo-referenced cadastral maps. ULPIN is a Single, Authoritative Source of Truth for information on any parcel of land or property to provide Integrated Land Services to the citizens as well as all stakeholders. The ULPIN system is based on an international standard which complies with Electronic Commerce Code Management Association (ECCMA) standard and Open Geospatial Consortium (OGC) standard. There is a formula to generate and assign ECCMA (Electronic Commerce Code Management Association) Standard prescribed 14 digit Unique ID “Property Natural Identifier Unit” (PNIU) using the parcel Geo Referenced coordinate of vertices. This computationally generated Unique ID would be organically dependent on Parcel vertices expressed in Lat/Long coordinates “Property Natural Identifier Lot” (PNIL) and Unique ID (PNIU) would spatially be pointing to the surface of the parcel. 
 
The exercise of special survey for consolidation of land and biometric authentication through Aadhaar Number as proof of conclusive land title is happening unmindful of the fact that the Aadhaar case is pending before a 7-judge Constitution Bench of the Supreme Court. It is apparent that it is related to the the Asset Monetization programme and the National Monetisation Pipeline (NMP), Government of India's initiative to establish a roadmap for "monetisation ready" assets. Pursuant to the announcement made in the Union Budget 2021-22, the NMP is listing potential core assets of Union Government Ministries/PSUs for monetization during the period 2021-22 to 2024-25. For instance, there are 258,000 acres of land with port trusts and railways has 113,000 acres. The State government too has surplus land. The special survey and settlement exercise aims to ascertain surplus land in the state for possible announcement of distribution ahead of the upcoming assembly elections. The plan was prepared by NITI Aayog in collaboration with the concerned Infrastructure Ministries in pursuance of the recommendations of the Finance Ministry’s Vijay Kelkar Committee made in 2012. This very Aayog has sent a Model conclusive land titling law to the States. It paves the way for social policies guided by digital-biometric determinism and discredited Eugenic thinking. 
 
Dr. Gopal Krishna*
 
* The author is a lawyer and a bilingual philosophy and public policy researcher. He has given expert testimony before the Indian, European and German Parliamentary Committees in the matter of national and international legislations on the land acquisition, national identification, hazardous waste trade, corporate code of conduct, civil liability for nuclear damage, consumer protection and biological diversity. E-mail:forcompletejustice@gmail.com

Adopt river basin and watershed based approach beyond parochial anthropocentric nation-state framework

Written By mediavigil on Tuesday, September 03, 2024 | 9:56 PM

In the backdrop of environmental and human disasters in Hiroshima, Nagasaki and Fukushima, there is a compulsion to think about the water footprint of 14, 500 nuclear weapons, 2, 000 nuclear tests and 495 nuclear reactors. Within India, the water footprint of 23 nuclear reactors in eight nuclear plants is yet to be factored in. The nuclear plant in Narora, Bulandsahar, Uttar Pradesh and the upcoming nuclear plant in Rooppur, Pabna, Bangladesh poses a threat to the residents of Ganga river basin.


Land and water co-exist. The colonial narrative separated land and water because it was concerned primarily with revenue from the land. Food is virtual water. It is water embedded in the food and in the food production process. Water exists in river basins, watersheds, atmosphere, ocean and under ground. Land erosion is linked to water flow and deforestation. The shrinking of agricultural land due to erosion, indiscriminate industrialisation and urbanisation poses a threat to food security.

UNDP’s report of 1994 introduced a new concept of human security, which equates security with people rather than territories, with development rather than arms. It recognised that water faces biggest environmental threat. It regards water scarcity as a factor in ethnic strife and political tension. It referred to the silent emergencies caused by polluted water and degraded land which puts lives and livelihoods at risk.

UNDP’s special report of 2022 on human security underlined that natural systems provide food and water provide besides ecosystem services such as watershed protection, and climate control. But in 123 countries an increase in wealth between 1990 and 2014 has been accompanied by a decline in natural capital. It recognises that cyberwarfare can disrupt electricity grids and water system.

The simile of water flow for data flow for creating data grid and water grid is remniscent of Marx’s observation regarding capitalism’s tendency towards centralisation, which ultimately overpowers the centrefugal forces of competition. Digitalisation and centralisation of data seems to entail colonisation of the ecological space and human space.  

UN Convention on Law of the Non-Navigational Uses of International Watercourses came into force in August 2014 after the ratification by 36 countries. None of the countries in the Himalayan watershed have ratified it because of Article 7 of the Convention which requires that States “take all appropriate measures to prevent the causing of significant harm” to other States sharing an international watercourse in the upstream and downstream. The interests of upstream and downstream States do no seem to converge as far as exploitation of the water is concerned. The definition of the watercourse in the Convention is quite parochial.      

The idea of water grid by linking rivers was rejected by Prof. S. R. Hashim headed National Commission on Integrated Water Resources Development Plan in 1999. But it too re-birth because of Supreme Court’s orders in 2003 and 2012. The proposal of diversion of some 39 rivers for Interlinking of Rivers (ILR) project, the world’s biggest project is likely to give birth to water security issues because “international watercourses” like Ganga, Kosi, Mechi and Brahmaputra are involved. It can adversely impact relations with Nepal, Bangladesh and China. Under Indo-Bangladesh treaty on sharing of Ganga waters, Ganga is deemed a deficit river but as part of the ILR project it is presented as a surplus river by National Water Development Agency (NWDA), an agency whose only mandate is to link major Himalayan rivers and Peninsular rivers at any environmental and human cost. The economic rationality of ILR like projects is contrary to water cycle and biological cycle because NWDA holds that there are “surplus” rivers, “deficit” rivers and water which goes o the sea is wasted. This assumption is unscientific and contrary to folk wisdom. It treats rivers as pipelines which can be twisted, mutilated and diverted for the ILR project. The project entails re-writing the geography of South Asia. It is caught in a time warp. The data on which the project is based from the 1970s. It ignores the fact that Himalayan rivers are unpredictable. This pre-climate crisis era project does not factor in green house gas emissions due to colossal land use change. The project is unfolding despite opposition from several states. It gives birth to myriad gnawing human security concerns.     

Disregarding the approach of the UNDP, UNFCCC and the G-77 group of countries, which focuses on human security, some members of the UN Security Council (UNSC) has been unsuccessfully attempting to establish a natural security narrative for climate crisis. UNSC failed to do in 2007, 2011 and 2020 and 2021 because of opposition from Russia, China, India and G-77 countries. The natural security narrative emerged out of a report entitled “National Security and the Threat of Climate Change”, from a US government-funded national security think tank, the Center for Naval Analyses. The Military Advisory Board and the study team that authored the report received briefings from the U.S. and U.K. intelligence community, climate scientists, and business and state leaders. The US military report recommended, "Military planning should view climate change as a threat to the balance of energy access, water supplies, and a healthy environment, and it should require a response." There are attempts underway to pursue this narrative despite failure at the UNSC. In February 2023, World Economic Forum Annual Meeting took the position that "Water security is a national security issue." NATO’s Parliamentary Assembly has published a draft report entitled “Turning The Tide: Addressing the Impact of Water Insecurity on Allied Security” in May 2024.    

International financial institutions (IFIs) like World Bank Group has been promoting contradictory and inconsistent projects wherein they consider river water quality improvement projects to be different from water quantity projects like dams. These institutions do not recognise that when the flow of water in the river is depleted, water quality deteriorates. Such projects are a threat to water security in particular and the river basins in general.

The disasters in the Himalayas and Western Ghats remind that water has memory. It never forgets itS course. The military people, economists and technocrats remain deaf to the message from the rivers. The solution lies in adopting genuine river basin and watershed based approach beyond parochial anthropocentric nation-state framework, which normalises and naturalises financialization and monetisation of natural wealth.          

Dr. Gopal Krishna's lecture at a webinar on "Security at Crossroads: Land, Food, Water" organised by the Calcutta Research Group (CRG) on 13th August 2024.  The other speakers were: Dr. Rajendran Narayanan, a Data Scientist who teaches at Azim Premji University and Dr. Meenakshi Nair Ambujam, a post-doctoral fellow affiliated with the Department of International Development at the University of Oxford. The webinar was chaired and moderated by Prof. Sabyasachi Basu Ray Chaudhury Professor, Department of Political Science, Rabindra Bharati University, Kolkata.


Suggestions to the new government for environmental protection

Written By mediavigil on Wednesday, June 05, 2024 | 4:11 AM

Environmental health researchers, lawyers and activists are at their wits' end because an ideology of “development at any cost” is creating an impression that environmental regulations are a hurdle in the process of financial growth and development.

India Meteorological Department forecast coming true

Written By mediavigil on Monday, May 27, 2024 | 6:44 AM

A heatwave means temperatures exceeding 40°C in low-lying terrains, or 30°C in the mountains. India's Meteorological Department has launched a Heat Index. It takes into account humidity factor as well. The Meteorological Department had forecast an unusually high number of heatwave days from April to June. There is no common global index on what constitutes a heat wave.  The heat index is derived using the heat index equation similar to what is used by National Weather Service, National Oceanic and Atmospheric Administration (NOAA), USA. The heat index provides information about the impact of humidity on the high temperatures.

The colour codes used for Experimental Heat Index are as follows:

Green: - Experimental heat Index less than 35 deg C

Yellow: - Experimental heat Index in the range 36-45 deg C

Orange: - Experimental heat Index in the range 46-55 deg C

Red: - Experimental heat Index greater than 55 deg C

The Heat Index is implemented on experimental basis only across the entire country including the State of Andhra Pradesh. The Heat index for Bhubaneshwar and Ahmedabad under Heat Action Plan is being done under project mode by National Disaster Management Authority (NDMA) in collaboration with local agencies like Indian Institute of Public Health (IIPH).

St. Antony Incident/Enrica Lexie Incident before Permanent Court of Arbitration

Written By mediavigil on Wednesday, May 22, 2024 | 3:29 AM

The Arbitral Tribunal delivered the award on May 21, 2020. On 8 October 2021, India indicated that, in view of assuranes received from Italy with respect to the prosecution of the Marines in Italy, it concurred in Italy’s proposal to close the arbitral proceedings. The arbitral proceedings was closed by Judge Vladimir Golitsyn, President, Permanent Court of Arbitration on October 12, 2021. In the matter of arbitration before the Arbitral Tribunal was constituted under Annex VII of the 1982 UN Convention on the Law of the Sea (The Italian Republuc v. the  Republic of India) concerning 'Enrica Lexie' Incident'. The Tribunal comprised of Judge Golitsyn, Judge Jin-Hyun Paik, Judge Patrick Robinson, Professor Francesco Francioni andDr. Pemmaraju Sreenivasa Rao. Award - Extracts for Advance Publication (July 02, 2020). 

Professor Alain Pellet and Rodman Bundy were the counsels of India. Pellet was emeritus Professor, University Paris Nanterre, ex-ormer Chairman of the International Law Commission and Member of the Institut de Droit International. Bundy was a Member of the New York Bar; former avocat à la Cour d’appel de Paris; Partner, Eversheds Harry Elias LLP, Singapore. Sir Daniel Bethlehem and Dr. Ben Juratowitch were counsels of Italy. Bethlehem was a Member of the Bar of England and Wales; 20 Essex Street Chambers. Juratowitch was a Solicitor Advocate, England and Wales; Solicitor of the Supreme Court of Queensland; Partner, Freshfields Bruckhaus Deringer.

The case was regarding an incident of firing that occurred on February 15, 2012 between 4-4.30 IST in the maritime area off the coast of India (Kerala state) at a distance of 20.5 nautical miles. The firing was done by two marines of the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, positioned on the “Enrica Lexie”, an oil tanker flying the Italian flag, to protect the vessel from what they believed to be an impending piracy or armed robbery attack from a small Indian boat, the “St. Antony”, which they perceived to be on a steady collision course. At the time, the “Enrica Lexie” was transiting through a maritime area that was within the range of a “High Risk Area” for piracy designated by the International Maritime Organization (IMO). On the particular day of the incident, the seas were calm, and a lot of fishing activity was undertaken, with no reports or warnings about any piracy/armed attacks.

The Arbitration was instituted on 26 June 2015 when the Italian Republic served on the Republic of India  a “Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim and Grounds on Which it is Based” (hereinafter the “Notification and Statement of Claim”) in respect of “the dispute concerning the Enrica Lexie Incident”.

Italy and India, the signatories to the UN Convention on the Law of the Sea (UNCLOS). Subsequent to its ratification of the Convention, on February 26, 1997, Italy made a declaration pursuant to Article 287 of the Convention accepting the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ). India has not made any such declaration. Therefore, as Italy and India have not accepted the same procedure for the settlement of disputes concerning the interpretation or application of the Convention, pursuant to Article 287, paragraphs 3 and 5, of the Convention, any dispute that may arise between the Parties in this regard may be submitted only to arbitration instituted in accordance with Annex VII to the Convention, unless the Parties agree otherwise. The Parties have not agreed on any other procedure. 

According to Italy, the Parties’ dispute concerns an incident that occurred on February 15, 2012 approximately 20.5 nautical miles off the coast of India involving the MV “Enrica Lexie”, an oil tanker flying the Italian flag, and India’s subsequent exercise of jurisdiction over the incident, and over two Italian Marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, who were on official duty on board the “Enrica Lexie” at the time of the incident.

According to India, the “incident” in question concerns the killing of two Indian fishermen on board an Indian vessel named the “St. Antony”, allegedly by rifle fire from the two aforementioned Marines stationed on the “Enrica Lexie”. India contends in this regard that, while the present case has been labelled the “‘Enrica Lexie’ Incident”, it should more accurately be referred to as the “‘St. Antony’ Incident”. Italy ratified the Convention on 13 January 1995. India ratified the Convention on 29 June 1995.

The “St. Antony” was a fishing vessel owned by an Indian national1833 and registered under the Tamil Nadu Marine Fishing Regulation Act, 1983, 1834 and the Marine Products Export Development Authority Act, 1972. St. Antony”, as a small fishing vessel, was exempt from registration under the Indian Merchant Shipping Act, 1958, and that pursuant to Article 94, paragraph 2, subparagraph (a), of the UNCLOS , “it was not […] obligatory for the St Antony to be registered given its small size”.

The test under the UNCLOS for establishing a jurisdictional link between a vessel and a State is whether a vessel possesses the nationality of that State, as opposed to whether or not it is found in a public register or flies a flag. A flag may thus be regarded as “visual evidence” or “a symbol” of nationality, but is not determinative for that vessel’s nationality.

As the case, when it was instituted by Italy, was registered by the Registry of the Permanent Court of Arbitration (PCA) as the arbitration concerning “the ‘Enrica Lexie’ Incident” in the absence of any objections from the Parties at the first procedural meeting, and given that during the proceedings and in the Arbitral Tribunal’s Order on Provisional Measures the case was continuously referred to as the arbitration concerning the “Enrica Lexie” Incident, the Arbitral Tribunal, without prejudice to the nature of the incident, decided to  do likewise in the Award.

In its Notification and Statement of Claim, Italy requested the Arbitral Tribunal, once constituted, to adjudge and declare that:
(a) India has acted and is acting in breach of international law by asserting and exercising jurisdiction over the Enrica Lexie and the Italian Marines in connection with the Enrica Lexie incident.
(b) The assertion and exercise of criminal jurisdiction by India is in violation of India’s obligation to respect the immunity of the Italian Marines as State officials exercising official functions.
(c) It is Italy that has exclusive jurisdiction over the Enrica Lexie and over the Italian Marines in connection with the Enrica Lexie incident.
(d) India must cease to exercise any form of jurisdiction over the Enrica Lexie Incident and the Italian Marines, including any measure of restraint with respect to Sergeant Latorre and Sergeant Girone.
(e) India has violated its obligation under the Convention to cooperate in the repression of piracy. 

The Arbitral Tribunal recorded: "When the 'St. Antony' was at a distance of approximately 500 metres from the 'Enrica Lexie', Sergeant Latorre and Sergeant Girone each fired four rounds of a mix of tracer and ordinary bullets.1847 According to the testimony of Sergeant Latorre, the purpose of these shots was to 'deter the craft from continuing to keep its course heading toward the Enrica LEXIE'. Sergeant Latorre noted in his Action Report that this 'first burst of warning shots' did not succeed in 'persuading the craft to drift away'. When the “St. Antony” was at a distance of 300 metres from the 'Enrica Lexie', Sergeant Latorre fired four rounds of a mix of tracer and ordinary bullets.1850 Sergeant Latorre noted further in his testimony that 'the second burst of warning shots did not achieve the desired effect, the craft ignored the warning shots and kept its course, heading toward the MV at constant speed'. When it was at a distance of approximately 80-100 metres from the 'Enrica Lexie', Sergeant Latorre and Sergeant Girone, each fired four further rounds of a mix of tracer and ordinary bullets. Following this third burst of shots, the 'St. Antony', after being approximately 30 metres away from the 'Enrica Lexie', changed its course away from the 'Enrica Lexie'.' It further noted that "Captain Fredy testified that he took over the steering,1854 and “abruptly helmed the boat away”. He steered the “St. Antony” at high speed, and only when he “realized [the bullets] were not hitting the boat” but rather “falling into water” did he slow the boat to “find out what had happened to the two people who were shot”.1856 After the incident, the “St. Antony” headed “towards the seashore”.

In the Arbitral Tribunal’s view, the evidence on the record is clear that it was the act of shooting at the “St. Antony” by the Marines stationed on the “Enrica Lexie” that caused the “St. Antony” to change direction and ultimately head back to shore. The “St. Antony” was, both during and after the incident, prevented from navigating its intended course. The shooting at the “St. Antony” amounted to physical interference with the navigation of the “St. Antony”. As observed by ITLOS in M/V “Norstar, “[i]t goes without saying that physical or material interference with navigation of foreign ships on the high seas violates the freedom of navigation”.  It referred to the Judgment dated 10 April 2019 in M/V “Norstar” case (Panama v. Italy).

The Arbitral Tribunal concluded that by interfering with the navigation of the “St. Antony”, Italy acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.

India asserted that Italy infringed India’s right to have its exclusive economic zone reserved for peaceful purposes under Article 88.

India submit\ted that “the use of force by another State is inconsistent with India’s right to have its EEZ reserved for peaceful purposes”. India argued that Article 88 should be read together with Article 301 of the Convention, which prohibits the threat or use of force or any other action inconsistent with the Charter of the United Nations. 1861 According to India, the travaux préparatoires of Article 301 show that it was originally part of Article 88 and hence was intended to clarify “peaceful purposes”.1862 Moreover, India submits that “[c]ommentators generally agree that the peaceful purposes or uses clauses (Articles 88 and 301) should be interpreted as prohibiting activities which are inconsistent with the UN Charter”.1863 India notes that Italy does not seem to dispute this interpretation.

India submitted that Italy breached Article 88 by recklessly “caus[ing] the deaths of two Indian fishermen, endanger[ing] the safe navigation of the fishing boat, and compromis[ing] the lives of the other persons on board the St Antony”.1865 India argues that the “St. Antony” was a small fishing boat travelling at low speed no more than 10 knots, facing a large oil tanker riding high in the sea, “protected by barbed wire along its high-raised decks, and heavily guarded by six well-armed Marines”and having a top speed of 14 knots. 

India submitted that the “Enrica Lexie” “could easily (and it had ample time to) [have] alter[ed] course and out-run the St Antony”, and that it “could have taken further initiatives to warn the St Antony”.1049. India concludes that “the Italian Marines’ use of force was unwarranted and excessive, and their actions not only endangered human life, they took two lives”.

India submitted that there was no reasonable apprehension of any threat to justify the Marines’ acts. According to India, “[e]xcept for one of the accused Marines, who stated that he saw two armed men on the craft, none of the crew of the Enrica Lexie reported that they had seen any armed persons on the small boat, no shots were fired from the craft, no attempt was made by individuals on the boat to board the Enrica Lexie, and the shape and makeup of the St Antony was far from a typical pirate skiff which usually carries ladders and hooks”.

India cited the M/V “SAIGA” (No. 2) case as an example, where, according to India, Guinea had allegedly used excessive and unreasonable force in stopping and arresting the vessel in question. According to India, ITLOS found that “the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances”.

In particular, India submitted that ITLOS referred to the normal practice used to stop a ship at sea, and highlighted that it was only after appropriate actions failed that force could be used “as a last resort”, and even then, “appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered”. While Italy, according to India, seeks to distinguish the present case from the M/V “SAIGA” (No. 2) case on the ground that it involved no risk of collision or hostile boarding, India argues that the Marines “were not under a reasonable apprehension of a security threat and possible collision and hostile pirate boarding”. 

India submits that the present case shares several similarities to the M/V “SAIGA” (No. 2) case: on India’s account, the Marines used “live ammunition”, no evidence shows use or threat of force by the crew of the “St. Antony”, and the Marines “attached little or no importance to the safety of the ship and the persons on board”.

India also relied on the Guyana v. Suriname arbitration (13 July 2019) where, according to India, the Annex VII arbitral tribunal found that “even a threat to a drilling vessel to leave the area or ‘the consequences will be yours’” amounted to “a breach of general international law and the 1982 Convention”.

In India’s view, the Marines’ actions were not only incompatible with the VPD Manual but also
“much more egregious than what happened in the Guyana-Suriname case”, and therefore must
constitute a violation of the Italy’s obligations under the Convention. 1052. India further claims that Italy is “miss[ing] the point” when it argues that the embarking and deployment of the VPDs was not inconsistent with the Charter of the United Nations because it was a measure implemented by the Italian government to protect its vessels from piracy at sea.

According to India, the issue is not the legality of the deployment of the VPDs, but their unjustified use of armed force, and the consequences for the “St. Antony”’s navigation. 


India disagreed with Italy’s claim that it did not breach Article 88 because the Marines’ actions were consistent with the Charter of the UN in the light of the UN Security Council Resolution 2077 (2012), adopted by the Security Council at its 6867th meeting, on November 21, 2012. To the contrary, India maintains that the Marines’ actions were not consistent with either Articles 88 and 301 of the Convention or Article 2, paragraph 4, of the Charter of the United Nations. India submitted that Resolution 2077 was adopted after the present incident and did not authorise the use of force in India’s exclusive economic zone. India argued that a “Security Council resolution must be explicit and sufficiently clear in its mandate in order to constitute an authorization to use force”. Further, Resolution 2077 does not include the phrases “all necessary means” or “all necessary measures”, which the Security Council uses where it authorises the use of force. India asserted that the Marines’ use of force was unnecessary as, in India’s view, the “Enrica Lexie” was under no reasonable apprehension of a security threat or piracy attack. India contended that Resolution 2077 applies only to “the situation in Somalia and shall not affect the rights or obligations or responsibilities of Member States under international law, including […] the Convention”.

Concerning Italy’s allegation that the actions of Marines should be adjudged by the State which has jurisdiction, India submitted that it is “not asking this Tribunal to decide on whether the Marines are guilty under domestic criminal law of either State”. Instead, India submitted that it “is  claiming that Italy bears international responsibility for its violation of UNCLOS under international law”. India dismissed Italy’s complaint that India had failed to adduce any evidence that Italy intended to pursue a breach of the peace as required to show a breach of Article 88 of the Convention.1887 In India’s view, under international law, a showing of purpose or intent is not necessary for establishing an internationally wrongful act as long as the act has occurred.

The Arbitral Tribunal observed that, as pointed out in the Virginia Commentary, Article 88 sets out the general principle that the high seas are to be reserved for peaceful purposes and that this principle is also confirmed in Article 301 concerning peaceful uses of the seas.1923 The latter calls on all States to:

refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations. It is noted that in the Virginia Commentary that there is nothing on the record to connect Article 301 with Article 88. At the same time, Article 301 can be used as an interpretive guide to Article 88. The Arbitral Tribunal observed that Article 301 of the Convention, which is drawn from Article 2, paragraph 4, of the Charter of the United Nations, is applicable to all activities dealt with by the Convention and would not seem to add anything to the obligations of States that existed prior to the conclusion of the Convention.

Article 2, paragraph 4, of the Charter of the UN provides: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Thus, under the Charter of the United Nations, the use of force is not completely prohibited if it is consistent with the Charter and with other rules of international law. This means that pursuant to Article 301 of the Convention, the use of force is not completely excluded on the high seas. It clearly follows from the articles of the Convention related to the fight against piracy that all States can take the necessary measures, including enforcement measures consistent with the Convention and the Charter of the United Nations, to protect their vessels against pirate attacks. Such measures cannot be viewed as a violation of Article 88 of the Convention or as an infringement on the rights of the coastal State in its exclusive economic zone. This is confirmed by Resolution 2077, which is cited by both Parties.

By that Resolution, the Security Council of the United Nations reaffirmed that international law, as reflected in UNCLOS, sets out the legal framework applicable to combating piracy and armed robbery at sea as well as other ocean activities, and: commend[ed] the efforts of flag States for taking appropriate measures to permit vessels sailing under their flag transiting the High Risk Area to embark vessel protection detachments and privately contracted armed security personnel and encouraging States to regulate such activities in accordance with applicable international law and permit charters to favour arrangements that make use of such measures.

It is an established fact that the Italian Marines were on board the “Enrica Lexie” to protect it against potential pirate attacks. As has also been noted in the present Award, the Arbitral Tribunal is of the view, on the basis of information available, that during the incident of 15 February 2012, the Marines acted under the apprehension that the “Enrica Lexie” was under a pirate attack and therefore took actions, the domestic law aspects of which are to be determined by a competent criminal court, to protect the “Enrica Lexie” against a perceived pirate attack.

The Arbitral Tribunal concludes that Italy did not breach Article 88 of the Convention.

India requested the Arbitral Tribunal to adjudge and declare that its counter-claims are admissible and that, “[b]y firing at the St Antony and killing two Indian fishermen on board, Italy”:
(4) violated India’s sovereign rights under Article 56 of UNCLOS;
(5) breached its obligation to have due regard to India’s rights in its EEZ under Article 58(3) of UNCLOS;
(6) violated India’s freedom and right of navigation under Articles 87 and 90 of UNCLOS; and
(7) infringed India’s right to have its EEZ reserved for peaceful purposes under Article 88 of UNCLOS.

India requested that the Arbitral Tribunal order Italy to “make full reparation for its breaches of Article 56, 58(3), 87, 88 and 90 of UNCLOS”.

Having found that, by interfering with the navigation of the “St. Antony”, Italy acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90, of the Convention, the Arbitral Tribunal examined which consequences arise from Italy’s unlawful conduct. The Arbitral Tribunal recalls that, under customary international law as codified in the ILC Draft Articles on State Responsibility, “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act”, which may include “any damage, whether material or moral, caused by the internationally wrongful act”. Specifically, full reparation shall take the form of restitution, compensation and satisfaction, either singly or in combination. 

The Parties, at the present stage, did not present detailed submissions to the Arbitral Tribunal as to the injury suffered by India. While India has requested the Arbitral Tribunal to order Italy to make full reparation, the Parties concur that the contents of any obligation on either Party to make reparation should be determined, if necessary, in a subsequent phase of these proceedings. Specifically, Italy has expressed the view that “all matters of quantum of compensation should be held over to be addressed in a subsequent phase”. India, on its part, has indicated that, if “the Tribunal were of the opinion that compensation [to Italy] is justified, it should in any case be held over in order to be addressed in a subsequent phase. India takes the same position with regard to its own counterclaims”.

Although the Arbitral Tribunal notes that the Parties have agreed that the question of reparations may be dealt with in a subsequent phase of the proceedings, the Arbitral Tribunal considers it appropriate to make the following observations. The injury suffered by India as a result of Italy’s breach, through the conduct of the Marines, of India’s freedom of navigation under the Convention is twofold.

First, India was subject to an infringement of its freedom of navigation. Such injury is a consequence of the breach of the Convention by Italy. While no specific material damage is associated with that injury, the Arbitral Tribunal recalls the principle expressed in the award of the arbitral tribunal in the “Rainbow Warrior” Affair that “[u]nlawful action against non-material interests, such as acts affecting the honor, dignity or prestige of a State, entitle the victim State to receive adequate reparation, even if those acts have not resulted in a pecuniary or material loss for the claimant State”.

The injury in question being of such a nature that it cannot be made good by restitution or compensation, reparation can only take the form of satisfaction. The Arbitral Tribunal considers that a finding in the present Award that Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention constitutes adequate satisfaction for India.1934 The Arbitral Tribunal recalls in this regard that, in the Corfu Channel case, the ICJ regarded a declaration by the Court “that the action of the British Navy constituted a violation of Albanian sovereignty” to be “in itself appropriate satisfaction”.

Second, the shooting at the “St. Antony” amounted to physical interference with the freedom of navigation of the “St. Antony” and constituted a breach of Article 87, paragraph 1, subparagraph (a), and Article 90. Based on the limited evidence available to the Arbitral Tribunal, as a consequence of such breach, crew members of the “St. Antony” suffered loss of life, physical harm, material damage to their property (including to the “St. Antony” itself), and moral harm. India is accordingly entitled to payment of compensation in respect of such damage, which by its nature cannot be made good through restitution.

Consistent with the Parties’ positions, the Parties are invited to consult with each other with a view to reaching agreement on the amount of compensation due to India. 

The Arbitral Tribunal shall retain jurisdiction, should either Party or both Parties wish to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India, in which event the Arbitral Tribunal would fix a timetable for further proceedings. Should no such application be received within one year after the date of the present Award, the proceedings shall be closed.

Based on Article 21 of the Rules of Procedure, Italy submitted that it is appropriate for the Arbitral Tribunal to “make an award of costs to Italy that reflects India’s breaches of UNCLOS and other relevant rules of international law as pleaded in this Memorial”. India contended that Italy’s costs claim, “which is not based on any justification or reproduced in Italy’s submissions, is not serious in the circumstances of the case and does not deserve any rebuttal”.

Annex VII, Article 7, to the Convention provides that, “[u]nless the arbitral tribunal decides otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares”. Article 21 of the Rules of Procedure applicable in this Arbitration states that “[u]nless decided otherwise by the Arbitral Tribunal, each Party shall bear its own costs”. In the view of the Arbitral Tribunal, there are no “particular circumstances” that would lead the Arbitral Tribunal to any other allocation of costs. Accordingly, no particular cost order from the Arbitral Tribunal is called for in this case.

The Arbitral Tribunal n relation to jurisdiction and admissibility found, by four votes to one, in respect of Italy’s Submission (1) and India’s Submission (1), that in the present Arbitration there is a dispute between the Parties as to which State is entitled to exercise jurisdiction over the incident of 15 February 2012 involving the “Enrica Lexie” and the “St. Antony”, and that the dispute concerns the interpretation or application of the Convention.

It found, by four votes to one, that the Arbitral Tribunal has jurisdiction over the dispute, subject to its decision on the specific objections to its jurisdiction raised by India in its Submission (1.a).

It found, unanimously, that India’s counter-claims are admissible. 

It found, by three votes to two, in respect of Italy’s Submission (2)(f), that Article 2, paragraph 3, Article 56, paragraph 2, and Article 58, paragraph 2, of the Convention are not pertinent and applicable in the present case.

It found, by three votes to two, in respect of Italy’s Submission (2)(f) and India’s Submission (1.a), that it has jurisdiction to deal with the question of the immunity of the Marines.

It found, unanimously, in respect of India’s submission (1.a), that there is no need to address the question of the compatibility with UNCLOS of India’s 1976 Maritime Zone Act and its 1981 Notification.

In relation to the merits of the dispute between the Parties, the Arbitral Tribunal found, unanimously, in respect of Italy’s Submission (2)(b)-(e) and (g), a. that India has not acted in breach of Article 87, paragraph 1, subparagraph (a), of the Convention; b. that India has not violated Article 92, paragraph 1, of the Convention; c. that Article 97, paragraphs 1 and 3, of the Convention are not applicable in the present case; d. that India has not violated Article 100 of the Convention and that therefore Article 300 cannot be invoked in the present case.

It decided, by three votes to two, in respect of Italy’s Submission (2)(f), that the Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines. 

It decided, by three votes to two, in respect of Italy’s Submission (3)(a) and (c), taking note of the commitment expressed by Italy during the proceedings to resume its criminal investigation into the events of 15 February 2012, that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required.

It found, in respect of India’s Submissions (4), (5), and (7), a. by three votes to two, that Italy has not violated India’s sovereign rights under Article 56 of the Convention; b. by three votes to two, that Italy has not violated Article 58, paragraph 3, of the Convention; c. unanimously, that Italy has not infringed on India’s rights under Article 88 of the Convention.

It found, unanimously, in respect of India’s Submission (6), that by interfering with the navigation of the “St. Antony” Italy has acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.

It decided, unanimously, in respect of India’s Submission (8), a. that a finding in the present Award that Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention constitutes adequate satisfaction for the injury to India’s non-material interests; b. that as a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the “St. Antony”) and moral harm suffered by the captain and other crew members of the “St. Antony”, which by its nature cannot be made good through restitution; c. that the Parties are invited to consult with each other with a view to reaching agreement on the amount of compensation due to India referred to in paragraph 6(b) above; d. that the Arbitral Tribunal shall retain jurisdiction should either Party or both Parties wish to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India, in which event the Arbitral Tribunal would fix a timetable for further proceedings, and that, should no such application be received within one year after the date of the present Award, the proceedings shall be closed. 

In relation to the costs of these proceedings, it decided that each Party shall bear its own costs.  

Joint Dissenting Opinion of Dr. Sreenivasa Rao Pemmaraju (Dr. P.S. Rao) and Judge Patrick Robinson

Concurring and Dissenting Opinion of Dr. Sreenivasa Rao Pemmaraju (Dr. P.S. Rao) 

Dissenting Opinion of Judge Patrick Robinson 

 
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