An IDC Analysis


New Delhi, 31 December 2006  


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 末 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 末 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, 選s 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, 船o 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.

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