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

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

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

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

The trial question

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

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

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

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

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

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

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

Samir Saran responds

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