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Updated: July 2, 2012 00:52 IST

Who governs the high seas?

    Samir Saran
    Samya Chatterjee
Comment (12)   ·   print   ·   T  T  
The Hindu

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

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

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

Larger issue

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

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

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

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

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

Question of territory

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

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

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

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

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

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Their claim of piracy attack is a very flimsy one. Unarmed fishermen, fast asleep on a boat are pirates? I'm sure they'd have had atleast a good telescope to see the 'pirates' closely and verify if they were pirates or not. Instead, the very next moment, the trigger happy marines fire and simply shoot their lives down. This is simply unpardonable and cannot be treated with any leniency. Regarding the question of jurisdiction, if they are allowed to get away with the act on the ground that it was on the high seas, does the law mean anything to any of us? If India cant extend its sovereignty to protect the lives of her citizens or prosecute people who murder her citizens, what meaning does such soverignty have? This is neither a collison, nor an incident of navigation and is totally outside the purview of UNCLOS. India is fully within her rights to have exercised judicial power over them.

from:  Gayathri
Posted on: Jun 27, 2012 at 21:19 IST

Piracy, International waters, jurisdiction, all these are terms that cannot substitute and supplement the agony and the sad plight of the two shot fishermen'family.My question here is that what provoked the Italina marines to shoot at them.There were no warning given to the poor fishermen who were fishing.Morevoer, if the Italian marines were in mala fede to mistake the fishermen for pirates, it is there I would question the intention of the Italians.No law guarantees them at all.They should have known in which international waters they were sailing.We know for sure that Indian sea waters are not as dangerous as African waters.Therefore by prima facie eveidence, the act of the Italian marines are a violation of human rights.Moreover, there was no provocation from the disarmed fishermen who were actually sleeping as recounted by those who were survived.So according to me the technical point that you raise here visa-vis International marines trying at the civilian court is a lacunae here

from:  William
Posted on: Jun 27, 2012 at 01:19 IST

Imagine trying a serving Indian soldier in an Indian civil court for an incident resulting from discharge of duty in naxal-infested areas, the northeast or Kashmir which is not deliberately criminal in construct says the authors. But that is not a right analogy as that is in India's territory and not Italy's. Even then those incidents are taken seriously and the act that grants them protection is about to be repealed. So the soldiers will be tried in civil courts if the killings are without reason after they are court martialled. If Indian marines kill 2 Italians off the coast of Italy do you think Italy will leave them to stand trial in India. That is the right question to ask here. In fact letting these marines off easily will make India loose reputation and set a bad precedent that anyone can get away with the murder of Indian nationals in Indian waters. Giving them strong punishment in India will send the right message.

from:  raju.ram
Posted on: Jun 26, 2012 at 10:24 IST

The article seems to be biased in nature blaming the Indian authorities for the fiasco.

from:  Jose
Posted on: Jun 26, 2012 at 10:02 IST

Why was this much delay in taking up this matter by Hindu? Until the mariners were awarded bail, Hindu remained almost silent. It was really unfortunate.

from:  Aswin
Posted on: Jun 26, 2012 at 09:47 IST

Ultimately what the govt,. has done is effective. There is little point in debating on the nicer points of the law of the seas when captains indulge in such wanton killing.

from:  s subramanyan
Posted on: Jun 26, 2012 at 09:45 IST

Well imagine what would have happened if the roles would have been reversed. Imagine that it was Indian officers who shot two Italian fishermen. What would have been response of Italy then. We should protect our sovereignty at all costs. India is no longer a dominion of European powers. The men who were murdered were Indian citizens and the murders took place near Indian coast. It's our duty to try them under Indian law. Do you want us to end up like Pakistan where CIA agents can kill people under broad daylight and then safely get away?

from:  arpan
Posted on: Jun 26, 2012 at 09:15 IST

Manufacturing thoughts? :)

from:  alisa
Posted on: Jun 26, 2012 at 08:27 IST

This article is a clear case of 'Manufacturing Opinion' as described in another article by M. Ali in the same news paper. I simply ask the author what would have happened if this incident had happened close to Italy and few Italian fisherman were killed by Indian marines? "in what was clearly a case of response based on bad judgment against a perceived act of piracy"--According to initial reports indian fisherman had no arms and they did no show any aggressive behavior with their slow moving boats....Dear Author, whose interest are you trying to protect here? Please have some mercy, few people were murdered and their killer needed to be punished...

from:  suneel singh
Posted on: Jun 26, 2012 at 05:43 IST

A fine but inherently flawed argument. How does UNCLOS deal with one civilian vessel (Italian Flagged) violently and fatally attacking another civilian vessel (Indian Flagged) in International waters? Which Flag state has jurisdiction? I believe UNCLOS does not clarify hence India is within its right as the coastal state to take action. Italian military personnel have no legal right to kill Indian civilians anywhere in the world (even inadvertently). Civilian law will apply in that case. Indian military personnel are not deployed in naxal affected areas. In the areas that they are deployed, they work under the AFSPA, so they are legally covered. Police and all other authorities will be treated in civilian courts for unprovoked and/or disproportional use of force.

from:  Ranjit Nambiar
Posted on: Jun 26, 2012 at 04:05 IST

The contents of the article seem a great burlesque for, two Indian fisherman caused the sense of piracy in the mind of Italian marines. Two man were there to loot the big ship and when they were shot,marines got succour is quite satirized. Example of 'naxal-infested area....' is shoddy too. Army act is applied here for, it is the internal matter of India and, Indian agencies are supposed to see into the matters. Here the victims are Indian civilians, so it is not justified that the same foreign authority will look into the matter,the culprits belong to. The matter is more concerned with innocent fishermen rather than Italian marines. Thus writers approach here to see the matter from exterior is swirling around. Decision of Kerala police is 100% right as any agency must do in order to safe its citizens. Trial by the local court and appraisal of apex court later, are firmly correct. This case is rarest of the rare case and cannot be discerned by the international point of view.

from:  Sujeet Kumar
Posted on: Jun 26, 2012 at 03:45 IST

Oh Great! Can the Hindu ever miss an opportunity of mentioning the army and its operations in the North East, Naxal areas and kashmir??

from:  Sid
Posted on: Jun 26, 2012 at 03:04 IST
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