The shooting of Indian fishermen by Italian marines aboard the Enrica Lexie brings to the fore the need to understand the Law of the Sea as understood by seafaring nations in general and India in particular. It is true that Article 97 of the United Nations Conference on the Law of the Sea (UNCLOS), as quoted by the Italian authorities, states that “No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag state”. In this case the flag state is Italy. But the Article quoted is out of context, as it deals with ‘Penal Jurisdiction in Matters of Collision or any other incident of Navigation'. Here neither collision nor navigational aspect is indicated.
On the contrary, in Annexure III of UNCLOS, under the heading of Convention of High Seas, 1958, Article 2 stipulates certain freedoms that are recognised by the general principles of international law, wherein freedom of fishing is a part.
To combat piracy, a modern threat to shipping, the International Maritime Organization (IMO) adopted a resolution in 1986 on the Suppression of Unlawful Acts against the Safety of Maritime Navigation, then known as the Rome Convention. This was the immediate outcome of the Achille Lauro case, in which a passenger ship with Italian crew was hijacked by Palestinians in October 1985. The U.N. then requested the IMO to address the problem. The action required to be taken was against persons committing unlawful acts against ships.
In the instant case, even this does not apply as there was no unlawful act committed against the ship by the fishermen. The action by the ship's crew was on suspicion that the fishermen could be pirates.
Therefore, this case definitely does not come under any of the provisions of UNCLOS or any other convention connected with international piracy. Killing someone is a crime; the accused has to face charges. But how and where must be decided by the authorities keeping in view diplomatic conditions.
(K.R.A. Narasiah worked as a chief mechanical engineer in the port sector and is a former consultant with the World Bank on marine issues.)
Keywords: United Nations Conference on the Law of the Sea, Convention of High Seas, International Maritime Organization, Italian Marines
See Article 92 of the UNCLOS. It confers on the flag state exclusive jurisdiction on a vessel on the high seas. Hence, the most important piece of information to be determined here is the exact location of the vessel at the time of the shooting.
Cane Cipro, Above the author states he is also a
"consultant with the World Bank on marine issues". Please respect the
laws where ever the crime has occured .. Italian Marine's life is no
greater than of a poor Indian fisherman. Stop presuming that Italians
will never make mistakes .. if Italy has evidence to prove that this
incident occurred in international water it should present a case to
Indian court and should guarantee that these marines are
brought to justice in Italy.
a "chief mechanical engineer in the port sector" giving condescending
lessons in maritime law. Seriously, you guys must be kidding!
A crisp and lucid analysis. The last sentence is, however, disturbing in the sense that diplomatic conditions are, under ideal conditions, subordinate to the Rule of Law.
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