The media was full of the news of MV Faraha, a ship under
Jordanian flag, loaded with 14,000 tons of rice from Kakinada
for export to Sri Lanka, which was forcibly boarded, and ransacked
by LTTE's Sea Tigers, off Sri Lanka's northern coast. The crew were
captured and sent to
Colombo.
This incident occurred last week and deserves comment and debate as
it is a serious issue involving Laws of the Seas (International
Law), of piracy and unlawful activity on the seas. In such cases
every nation is obliged to act to ensure that International Law is
not transgressed. This blatantly unlawful activity took place right
under the nose of India, which has cargo interests –– a shipping
term. If the cargo was insured by an Indian insurance company it is
all the more critical for India's vital interests. The insurance
company will have to pay like GIC paid the Jain Vanaspati owner who
deliberately sank a ship with a few crore rupees worth of cloves
(which were never loaded In Singapore) off the East Coast of Sri
Lanka in 1980, in collusion with the crew, who disembarked with all
their belongings. In that case also because of poor investigation
and follow up by CBI, which disregarded Navy advice on laws of the
seas, the Insurance Company paid crores. In India there are very few
experts on Maritime Law, as most shippers are content to fix ships
with arbitration clauses in
London
in a majority of charters.
This time too there was a slight chance that the crew was in
collusion with the LTTE but knowing the Sea Tiger tactics and their
desire to show sovereignty over the waters they control, may be only
a remote possibility. This amounts to
Elam.
Admittedly the incident legally warranted immediate action by
the Government of Sri Lanka under the Laws of the Seas, as it
amounted to hijacking and piracy in their territorial waters and the
ship possibly drifted into the territorial waters of Sri Lanka and
anchored as its engines gave up. However the naval fraternity world
over knows that the Sri Lankan navy does not have the capability to
take on the Sea Tigers, which have a ferocious hitting capability
with unorthodox tactics and SLN has suffered many losses of ships
and lives. If the ship was in the territorial waters of Sri Lanka,
the Indian Navy could only intervene if requested to, but if the
ship was being taken over by pirates as seems to be the case, then
universal jurisdiction for piracy applies and the Indian Navy and
Indian Coast Guard were obligated to inform Sri Lanka and take
action –– unless Sri Lanka said it was lawful activity in their
territorial waters and India could then file objections, by
consulting the owners and Jordan whose Flag it probably flew.
Most governments lean on navies for advice in such cases. The
Navy in a Western Country would have advised the Government
accordingly and the Chief would have asked the Government to state
that it was not to do its legal duty. In fact in the 1965 War this
is what happened. The Navy Chief was told by a joint secretary not
to sail IN ships above the latitude of Porbunder. The Chief asked
the order to be given in writing and the Joint Secretary gave it in
writing and when the Navy Chief Admiral B S Soman asked to see the
Defence Minsiter the Defence Minister merely initialed the file. IDC
has the letter written by Admiral Soman on this. He then asked to
see the Prime Minister and President but did not get the
opportunity.
Hence in this case a Catch 22 situation has probably arisen
for Indian Navy. The Indian Government should have offered
assistance and taken action but
India's
Tamil Nadu politics and MDMK antics of its leader Vaiko invariably
seem to dictate India's Sri Lanka policies. So we ask the Question,
‘Is India a nuclear power with the most powerful Navy in the
region impotent and are our Leaders ineffective?’ Strong language
perhaps to convey the point! Is the Government afraid of taming the
Sea Tigers under International law at sea as we have the authority?
During OP Pawan not one Indian Navy ship or sailor, in the
ports of Trincomallee or KKS was touched and that is another story
in the Navy's cap of feathers. We have to ask, ‘Do we have the
makings of a regional power or will
India
even succumb to bend International law for local politics?’ This
needs debate in professional naval circles and we are sure the Naval
and Coast Guard experts who may have the best Laws of the Seas
specialists who attend UNCLOS meetings will have debated the issue,
and must correct us if our analysis is wrong. Even if India takes no
action for national interests as Lord Palmestrom said, the Armed
Forces need to learn lessons for the future.
We are aware that Sri Lankan leaders including their Navy
Chief have requested the Indian Government and Navy for joint
patrols to deal with the Sea Tigers, who have arbitrarily claimed
sovereignty over waters contiguous to the shores that the LTTE
controls. This is a legitimate request from a friendly neighboring
country and Indian Navy can be directed to intercede. No renegade
Navy can be allowed to operate in this fashion, and that too
within 25 nautical miles of the powerful Indian Navy and Coast
Guard's universal jurisdiction. If action is not taken, it amounts
to tacit acceptance of sovereignty of the LTTE and their claims of
Elam. India
as a regional power, for its own vital interests and rule of
International law has to act in concert with Sri Lanka. In the past
the Indian Navy and Coast Guard captured the pirates that had taken
over the Allondra Rainbow in International waters in November 1999,
and earned kudos. Also when in 1987 the Tamils were being oppressed
Indian Air Force and Indian Coast Guard transgressed
Sri Lanka
air space and waters to provide relief but that was action of a
powerful nation. Today India is more powerful and respected as a
follower of International Law and we are advisors to Iran in its
case as a signatory to NPT.
It may be mentioned that the Indian Navy actually escorted US
flagged merchant ships in the territorial waters of
Singapore and
Malaysia in the Malacca Straits in 2001 under OP Sagittarius, after
9/11 and earned the respect and regard of the US Navy and Pentagon.
It is such cooperative steps that have finally contributed to the
Indo-US nuclear deal and so we do not see why India does not act in
such cases involving international law.