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MV X-Press Pearl: A Conundrum of Maritime Jurisdiction

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Authors: Harsh Mahaseth and Niharika Goel*

When the MV X-Press Pearl cargo ship owned by a Singapore-based company caught fire near the Colombo harbour of Sri Lanka, it caused the worst catastrophe of the decade. While the coordination amongst the involved countries stood disturbed, it posed a conundrum regarding who shall be held liable for the damages involved.

The Singaporean ship set sail from Malaysia, entering service in February of 2021. However, while returning from its third journey from Qatar to Malaysia, it sunk off the coast of Sri Lanka, near the Colombo harbor, after it caught fire. The crew was attempting to tow the vessel into deeper waters when the mishappening took place. Navy Media spokesman Captain Indika de Silva said

The towing the ship to the deeper seas was abandoned as the stern of the ship sank to the sea bed while it was being towed 500 to 600 m westward.”

This vessel was ablaze at the Sri-Lanka’s shoreline for thirteen days. By late June, only four months after it had first headed out, the desolated transport was sitting 70 feet underneath the Indian Ocean. The spread of pellets and nurdles, surprisingly found in the gills and paunches of dead fishes, is predicted to reach the Indian coastline, Maldives, Madagascar, Thailand and Indonesia owing to the currents caused by the cyclone Yaas. Other controversial elements, including synthetic compounds like nitric corrosive, sodium dioxide, copper, and lead would also not take long to enter the human circulatory systems because of the wide utilization of fish in the concerned area.

Being a vessel registered to the flag of Singapore, manufactured by a company in China, insured by a company in the United Kingdom, enroute via India to Malaysia from Saudi Arabia, creating a catastrophe at Sri Lanka builds a jurisdictional conundrum. The crew was aware of the corrosive, toxic and flammable liquid, nitric acid when it was loaded in Dubai. Adding to the complexity, they were also denied permission by Qatar and India to dock the ship which resulted in a longer than usual route. Despite such lack of cooperation between the concerned nations, along with limited offshore capacities, the vessel progressed into Sri Lankan waters with its controversial cargo onboard.

Under United Nations Convention of the Law of the Sea, the limit of territorial sea of a State extends to 12 nautical miles from the baseline under Article 3, the Contiguous Zone extends to 24 nautical miles from the baseline under Article 33 and the breadth of Exclusive Economic Zone (EEZ) extends to 200 nautical miles from the baseline from which the breadth of the territorial sea is measured under Article 57. Location of the sinking ship or ship wreck has been within the territorial sea lesser than 12 nautical miles from the shore of Sri Lanka. Further, the commonly accepted polluter pays principle states that those who produce the pollution shall bear the cost to reduce, if not eliminate, the environmental damage caused by such catastrophe. The owner of the company and the flagged country is Singapore which thus, will be equally liable.

Article 235 and Article 192 of the United Nations Convention on the Law of the Sea (UNCLOS), 1982 creates general obligations on the state to protect the marine environment, to which Sri Lanka is a signatory. Article 220(6) when read with Article 211(6) of UNCLOS provides states the power to enact laws for damages and institute proceedings, in cases with evidence of a violation by a vessel causing damage or threat of damage to economic zone. While, lacunae present in the legal remedies pertaining to damages caused by hazardous noxious substances is abridged by the Hazardous and Noxious Substance (HNS) Convention and the 2010 protocol by a two-tier compensation regime but the convention is still pending ratification by the required number of states and thus has not come into force yet. To bridge the gap in the provisions regarding matters concerning hazardous substance, the definition of a harmful substance under Section 2(2) of the MARPOL Convention, provides to mean any substance which, if introduced into the sea, is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea, and includes any substance subject to control by the Convention.

Part VIII (Prevention of Pollution – Criminal Liability) and Part IX (Prevention of Pollution  – Civil Liability) of the Sri Lanka’s Marine Pollution Prevention Act, 2008 enumerate civil and criminal liability in the MV X Press Pearl case. Section 26(a) of the Act will impose criminal liability on the owner, master, or agent of the ship charging fine up to Rs. 4 Million (not exceeding Rs. 14 Million) if any oil, harmful substance, or pollutant is discharged into the territorial borders of Sri Lanka, and civil liability under Section 34 provides for unlimited recovery of any damages caused by the pollutant, costs of measures taken for the purpose of reducing/removing such pollutant from the territorial waters of Sri Lanka.

Ship owners register their vessel in a country other than that of the ship owners to avoid stringent taxes under the business practice termed Flag of convenience (FOC). For such flag states, the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) enforces responsibilities ensuring that the vessels comply with the rules and standards of the registered state jurisdiction including periodic inspections of the vessels, and prohibition of vessels from flying their flags in cases of non-compliance. Keeping in consideration the cargo onboard, the Hague Visby Rules obligates a contract of carriage evidenced by the bill of lading which would invariably provide for application of. For an owner to exclude any liability under the Hague Visby Rules, they need to establish and prove that they exercised due diligence in the beginning of the voyage (Article III (1)) and they had taken continuous care of the cargo under their responsibility (Article III (2)).

The flag state, Singapore also stands liable under Article 3 of the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunker Convention), 2001 which provides for strict liability of the owner under three heads of pollution damage. Damage caused in Singapore by the contamination, entire costs and expenses incurred in establishing reasonable measures to reduce the damage, and any additional damages caused to Singapore due to any such measures will also be recovered. In conclusion, the owner of the ship will not only be liable to pay for the damages caused but also for costs incurred in the restoration of such damages. As Article 3 provides for strict liability of the owner, there are limited defences available for the owner namely act of war or inevitable phenonmenon, a third party not an employee or agent of the owner, negligent act of government in exercising functions of navigations aids were the cause of discharge by the vessel. However, a strict liability arises imposed on the vessel owner and their insurers for the costs of any preventive or recovery measures. While the Convention for Limitation of Liability for Maritime Claims (LLMC), 1976 administers compensation amount to be paid by ship owners in such cases, the subsequently amended LLMC agreed in 1996 (the 1996 Protocol) subsequently increases the cap for compensation in direct proportion to the gross tonnage of the vessel with no prescribed defences available. The matter can also be subjected to an ad hoc arbitration agreement after due consent of the parties involved, which is preferable in claims of contracts of carriage for a more flexible and confidential settlement of the dispute.

The Centre for Environmental Justice has filed charges against the Sri Lankan Government, as well as the shipping company involved with the situation alleged that the ship-owners already knew about the concerned acid leak, and asked for both civil and criminal action with the crew being taken into custody. The vessel’s operator, X-Press Feeders paid an initial payment of $3.6 million against the $300 million USD sought to the Sri Lankan Government.

*Niharika Goel is a final-year law student who is also working as a research assistant to Assistant Professor Harsh Mahaseth.

Harsh Mahaseth is an Assistant Professor and Assistant Dean (Academic Affairs) at Jindal Global Law School, and a Senior Research Analyst at the Nehginpao Kipgen Center for Southeast Asian Studies, O.P. Jindal Global University, Sonipat, India.

South Asia

The Taliban and the current Afghanistan

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Photo Credit: Wikimedia Commons

After the Taliban seized power in Afghanistan, the Afghan state and the public rapidly declined. The country’s territories have become the source of international terrorism and many global problems.

August 15 is the first anniversary since the power in Afghanistan was seized by the Kabul Taliban, and the ex-president of the Afghan state, Ashraf Ghani fled. After a year of the Taliban’s power, their power has not yet been recognized by any state in the world.

According to the UN International Labor Organization, the Taliban’s ascension to power in Afghanistan has led to rapid growth in the unemployment rate among the population. Based on the data of the UN, such a situation in the Afghan labor market was caused by the economic crisis and the prohibition on work for the female population. Over five hundred thousand people in Afghanistan lost their jobs during the first month of the Taliban rule. “The crisis has affected women the most. Thus, their employment level, already extremely low by world standards, decreased by 16% in the third quarter of last year. By mid—2022, it is projected to fall to 28%,” the UN investigation states.

In addition to the economic decline, there has been a rise in drug production in Afghanistan. Drugs are one of the Taliban’s main income zones, and their power has re-activated the production and export of opium and heroin. However, the drug business was also active under the former Afghan authorities. According to the UN, in 2021, Afghanistan’s income from drug exports amounted from 1.8 billion to 2.7 billion US dollars. This profit is from 6 to 11% of the GDP of the Afghan state. As before, the main drug export channels pass through Pakistan. The leader of the Taliban, Haibatullah Akhundzada, issued a fatwa in 2022 to ban the production and distribution of opium and other drug substances in Afghanistan. However, there have been no significant changes in this situation. Nevertheless, the Taliban repeatedly make statements about the cessation of drug production, but they also confirm that the prohibition on opium production will lead to the loss of the only way of earning for peasants, leading to an uprising.

Pakistan acts as the main partner country for Afghanistan. Bypassing sanctions, weapons are coming from Pakistan to Afghanistan. And the majority of Afghan drugs are exported through Pakistan’s western provinces – the southern route. The main patron and sponsor of the Taliban is also the Pakistani military leadership. With the help of Pakistani support, the radicals seized power in Afghanistan and persecuted other alternatives to power.

The Taliban’s first financial income was provided by transportation fees that the militants took from truck drivers on the border of Afghanistan and the state’s territory. The Taliban’s seizure of power in Afghanistan concentrated its forces on extracting natural resources. In February 2022, the Afghan media reported on the negotiations of the new Afghan government with China on the development of copper and lithium by Chinese companies. But even though China, along with Pakistan, is a vital partner of the Taliban regime, mineral development has not yet begun. Without the support and diplomatic assistance of China and Pakistan, the Taliban would not have been able to establish their authority over Afghanistan. However, Beijing still has not officially recognized their power.

Also, summing up the results of the year of Taliban rule in Afghanistan, we can definitely say that the new regime fails to solve the economic and social problems of the state. According to UN research, Afghanistan is on the verge of famine and humanitarian collapse. It is worth noting that during the presence of the United States and NATO in the country, there was no such catastrophic situation. Also, during the period of the Taliban regime in Afghanistan, the position of terrorist organizations such as al Qaeda and the Islamic State has strengthened. The Taliban does not intend to start the fight with the presence of these organizations.

Also, in June 2022, an earthquake with colossal consequences occurred on the border of Afghanistan and Pakistan. The death toll during the disaster was more than 1.5 people, and more than two thousand were injured. The UN has recorded that Afghanistan’s government cannot cope with the threats that the Afghan society is forced to cope with alone.

UNICEF and the World Food Program note the catastrophic situation of Afghan children, and organizations make statements about the high level of undernutrition and that over 3.5 million children urgently need treatment. The UN website says, “Hospital wards are full of malnourished children: many one-year-olds weigh as much as a six-month-old baby would weigh in a developed country, and some are so weak that they cannot move.”

The new government of Afghanistan carries out mass executions, severe human rights violations, and forced disappearances of citizens and previous security forces employees. This is recorded by the United Nations Assistance Organization in Afghanistan. To a large extent, the repression is carried out by two Talib departments – the Ministry of Propaganda of Virtue and Prevention of Vice and the General Directorate of Intelligence. Both organizations are under the auspices of Pakistani security agencies.

UNAMA experts report “arbitrary arrests and detentions of journalists, human rights defenders and protesters.” There were 160 extrajudicial executions, 178 unjustified arrests and 56 cases of torture of former Afghan military and Government employees. In addition, 2106 victims were registered among ethnic and religious minorities (700 killed, 1406 wounded).

After a year, the Taliban authorities, according to international organizations, destroyed the essential state structures in Afghanistan responsible for solving social issues such as jobs and the state’s humanitarian condition. The Afghan Independent Human Rights Commission premises were also seized, and the Ministry of Women’s Affairs was closed. Afghan women are deprived of the right to work. Except for some professions, they are not allowed to travel more than 72 km unaccompanied by men and cannot appear on the street with an open face. Responsibility for all violations of the rules of a woman is borne by her father or another close male relative. The punishment is dismissal from work or imprisonment.

Freedom of speech was also seriously impaired. The international human rights organization Reporters Without Borders (RSF) reports that there are half as many media in Afghanistan as a result of the year-long run of the Taliban. During the year, 219 organizations out of 547 media were closed. Before the Taliban came to power, there were 11,857 journalists in the country. Today only 4,759 of them remain. Female journalists took the first impact. Almost all of them were left without their job.

The Taliban sees the UN’s message about human rights in Afghanistan as propaganda. On July 21, Taliban official Zabiullah Mujahid posted on social media: “There are no arbitrary killings or arrests in the country. If someone kills or arbitrarily arrests, that person is considered a criminal and will be brought before Sharia law.”

In sum, a few conclusions about the power of the Taliban must be noted. The Taliban is characterized by a lack of qualification in the country’s rule, and the leadership cannot organize public service. Also, the Taliban does not fulfil its duties to combat terrorist organizations, which has ensured the strengthening of the position of existing banned groups. The female population of Afghanistan and various social minorities suffered. The Taliban are building strong relationships with authoritarian countries such as Pakistan, China and Russia. Islamabad carries out the actual control of the Taliban and also uses the Taliban in the South Asian region for its geopolitical purposes.

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South Asia

Khalistan Referendum

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Every charter of Human Rights provides a framework for the basic individual rights. Under these civil liberties, all humans are entitled to revel in those privileges. Sikh community residing around the globe is facing heinous behavior from the India’s Modi regime as it is a home for many Sikhs. The episode of unlawful arrest of the UK-based Sikh activist named Jagtar Singh Johal in 2017 with the help of UK government ignited a huge number of protests across the world. According to his lawyers from Scotland, he has been tortured and falsely accused to whom British PM Boris John acknowledged while showing his concern. Most recently, the murder of Sidhu Moosewala who was an active supporter of Sikh rights is an example of India’s unjust activities. Provision of security was denied by BJP government before his murder. In support of Sidhu and separate homeland for Sikhs, more than 17,000 Sikhs voted for Khalistan Referendum in Rome, Italy. Similarly, UK having one of the highest ratio of Sikh diaspora, organized a campaign under the active advocates of Sikh rights “Sikhs for Justice (SFJ)” in which 30,000 British Sikhs voted for referendum on 31st October 2021. Series of Sikh referendums are lined up and SFJ declared that after completing this voting series, it will be a decision of 120,000 Sikhs showing the desire for separate land under the rule and law provided them by International Justice System.  A huge referendum is planned for the Sikhs of Punjab on 26th January 2023.

The roots of these referendum are enrooted into the event of Operation Blue Star happened in 1984. Under this operation, Indian army attached on the holiest place of Sikhs, “Golden Temple” to capture Sikhs whom Indian Army declared as terrorists and claimed that they are hiding weapons inside the temple as well. Many innocent Sikhs lost their lives. The level of brutality not only stopped at killing innocents but also disrespected the sentiments of the followers of this particular religion. A homeland that ought to be safe place for its residents became a threatening region. That’s why a huge number of Indian Sikhs migrated to other states like UK, Canada, Italy and US to seek a safe residence. The fight for the cause of Sikh’s rights is still going on, as there is a referendum on 18th September 2022, Toronto, Canada, in which high ratio of Sikh voters are expected to participate.

Massive genocide and extra-Judicial killings are the major tools of Modi regime against the Sikh community. To deal with all these unlawful activities, Sikh diaspora has organized itself into groups like “Sikhs for Justice (SFJ)” who are arranging referendum, holding protests and advocating Sikhs right at all possible platforms. Specifically for the Khalistan Referendum, Punjab Referendum Commission (PRC) has been designed to have free and fair voting for the basic demand. Through such representation, Sikhs are asking for a legal demand from India’s Modi regime. These organizational setup shows that Sikh community is well aware of its rights, and using the peaceful means to convey their message to the world. 

If India is real democracy and wants to be seen as democratic country, it should accept Sikh referendum results.  The result of referendum can always be leveraged in “Law fare domain” to ask India to hold an official referendum for the purpose.  Democracies are torch holder of freedom, human rights and their liberties. This behavior of India is not acceptable to be an example for the rest of aspiring democratic states where the Modi Regime is having genocidal designs against the specific communities. Khalistan Movement with the aspirations of a separate homeland is the legitimate demand of Sikh community. By overturning these movements and referendums, India is suppressing its minorities and violating their right to self-determination through peaceful means.

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South Asia

Why Pakistan is Swamped with Floods

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Starting mid-June 2022, flooding and landslides caused by heavy monsoon rainfall have brought widespread destruction across Pakistan. © WFP/Saiyna Bashir

Aside from the monsoon coming in waves leaving hapless Pakistan looking like an inland sea, Pakistan also has the mighty Indus serving as a spine and its huge tributaries fanning out through its most productive province of Punjab — the name itself meaning five waters.

The monsoon season is short so the fertile soil is irrigated by means of a network of canals feeding the province. The water is vital and thus the prospect of India building a dam at the head of any of these rivers without an equitable solution for sharing could lead to war.  As it is, the river Ravi runs almost dry as it reaches Lahore close to the Indian border. 

To return to the floods this year caused by an unusual phenomenon:  The normal course of the monsoon takes the moisture laden winds north from the Bay of Bengal, then unable to traverse the high Himalayas, they are pushed west along the foothills, shedding water as they rise all the way across India into Pakistan.  By the time they reach the latter, they have lost most of their moisture leaving Pakistan a very short rainy season … over the latter parts of August and early September.

Global warming has changed things.  This year the moisture laden air from the Bay of Bengal was hot enough to prevent precipitation, jamming it up against the Himalayas.  As more monsoon winds collected in the rear, these were forced on to an alternative route directly westwards, racing across the middle of India without impediment until the Hindu Kush mountains in Pakistan.  So it was that all the collected moisture got dumped on to Pakistan.  If this is a harbinger of the future under global warming, the rich croplands of Uttar Pradesh are in danger.  Do they also have irrigation canals in their future like the Punjab? 

Pakistan’s other source of moisture is the Arabian Sea, and this year a depression i.e. an intense low-pressure system settled in it bringing heavy rain to coastal provinces as early as June; all of which was exacerbated by extreme heat.  Temperatures in May soared as high as 51C in Jacobabad as an example.  Hotter air carries more moisture and this heatwave continued through April and May.  Moreover swollen rivers from greater glacial melt up high in the Himalayas have not helped. 

Pakistan thus must plan for the future.  Flood control measures are not unknown in the country, and perhaps an appropriately irrigated Balochistan could become another granary for the country — if only the politicians can stop quarreling long enough to listen to the cries of the flood victims.

Nettlesome politicians on both sides of the border, and the subcontinent sheds its tears in floods.  A tragedy if ever there was one.

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