Italian gunmen: UNCLOS misread
by S Faizi on 16 Mar 2013 6 Comments

As a citizen who has worked on multilateral treaties in which India was a party, the writer is of the view that the Italian Government’s decision not to fulfill the commitment made through its ambassador to the Supreme Court of India represents a grave infraction of the rule of international laws and time-tested multilaterally accepted traditions.


Rome is also misreading the UN Convention on the Law of Sea (UNCLOS). One can only hope that the Italian Government has not returned to the creed of fascismo and that the pervasive Italian mafia has not taken over the business of national governance.


The ambassador claimed that the crime committed by the gunmen (shooting two unarmed Indian fishermen on the pretext of mistaking them for pirates) could be addressed as per Article 100 of the UNCLOS. A serious reading of the Treaty makes this untenable.


Article 100 commits States to cooperate in the repression of piracy on the high seas and in areas beyond national jurisdiction, Article 101 defines piracy:


Article 101: Definition of piracy

Piracy consists of any of the following acts:

(a) Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;


(b) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;


(c) Any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)’.


Hence, if the envoy made the proposal after reading Article 101, it amounts of accusing the innocent victims who were fishing in India’s Territorial Waters as being pirates, and that is a crime in itself.


The whole series of arguments made by the Italian Government have been perverted and entirely misleading about the well-meaning international laws. If the ship was not in the Territorial Waters as argued, then it was certainly in the Contiguous Zone. Under UNCLOS, a foreign vessel has only a right of ‘innocent passage’ through the Territorial Waters and the Contiguous Zone.


And as per Article 19 explaining the meaning of innocent passage, the treaty stipulates that ‘any exercise or practice with weapons of any kind’ by a foreign ship shall be considered to be ‘prejudicial to the peace, good order or security of the coastal State’ and hence shall not constitute innocent passage.


Article 27.1.a categorically states that the criminal jurisdiction of the coastal State prevails ‘if the consequences of the crime extend to the coastal State’. The simple and glaringly obvious fact that the coastal State jurisdiction does not apply to a crime happening entirely on board the ship, without affecting anyone outside, has been deliberately misread by Rome to argue that Indian jurisdiction does not apply in this case. That is laughable if not ridiculous.


In the impossible event of this argument being validated, any country can send soldiers or terrorists to the coastal waters of Italy and shoot from the ship at all possible targets and Italy will have to nod to the jurisdiction of the flag State addressing this. Fortunately, international treaties are not framed to endanger national sovereignty in such manner, but indeed to protect it, and that is what UNCLOS does too.


It was interesting that Rome raised the claim of protection of the gunmen under the Geneva Convention as PoWs, which actually means that their crime was an act of war. The Indian Government should actually have proceeded along those lines.


Even as Italy goes to unfortunate lengths to protect the criminal Marines, innocent Italians in India who have been visited by misfortune have been ignored by the same Government. When Italian citizens Bosusco Paola and Claudio Colangelo were abducted in Orissa in March 2012, Italy did virtually nothing to seek their release, in comparison to the huge risks now being taken on behalf of the two gunmen. 


An elderly Italian Sebastiano Roserio Contiguglia had to die in Cuttack city two months ago as he could not afford adequate medical care. And it was our National Human Rights Commission and the Odisha High Court that sought reports on the death of this Italian; the same judicial system that the Italian Government now seeks to dishonour. Yet it was nowhere when this hapless Italian needed help. Why the double standards?


The accused gunmen should not have been allowed to leave India. Some of us believed that the Italian government could not be trusted and we were proved right. The act of refusal to return the accused to India is an act of subversion of international laws and multilateral norms upon which the community of civilized nations conducts business. This behavior is not characteristic of a legitimately constituted government, and it would be in the fitness of things to reverse this erroneous decision and demonstrate Italian civility to the world.

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