At the outset it is misplaced to suggest the original opinion in any way lauded the use of firearms or the actions of the Italian Marines. It expresses apprehension that such incidents are likely to recur as armed response to threats on the high seas is seen as a viable one.
The reference to SUA is entirely misplaced. SUA was enacted pursuant to a U.N. Convention to contain acts of terrorism. The application of SUA requires sanction of the Union government. The Kerala government has for this reason made a statement in the Kerala High Court that it will withdraw the charges of SUA against the Marines.
However, one fact may clear the air further and that is the reality that St. Antony (the vessel from Kerala) is a fishing vessel and Enrica Lexie is a merchant vessel with Military Vessel Protection Detachments deployed to protect against piracy in accordance with U.N. Conventions and other laws.
“Incidents of navigation”, should not be misread as the term is interpreted in accordance with the scheme of UNCLOS, especially Article 94(7) which describes various “incidents of navigation” and includes within its fold instances such as the present one. While Article 97 applies to the High seas, Article 58(2) of UNCLOS pertaining to the EEZ specifically incorporates and extends Article 97 and others to the EEZ.
The flag state jurisdiction under UNCLOS is based on the floating territory principle viz., a ship under the flag of a state is under the protection of that state and is subject to the laws of that state. The Indian Merchant Shipping Act excludes fishing vessels from flying the Indian flag. St. Antony is not registered under the Merchant Shipping Act and was not flying the Indian flag. St. Anthony in fact is registered as a mechanised fishing boat and was authorised to ply only within Indian territorial waters, i.e. within 12 nautical miles. Thus the fact that the incident occurred outside Indian territorial waters is not in dispute. Thus there is absolutely no dispute about the jurisdiction of the flag state.
The reliance on the Lotus case is erroneous. The evolution of international law after the 1927 Lotus case has eluded the authors and UNCLOS, 1982 specifically derogated from the principles laid down in the Lotus case and gives exclusive jurisdiction to the flag state (Italy).