|The LTTE ship and maritime law
W. D. Soysa,
Some queries for Thamilchelvan:
What was the flag the vessel was flying?
What was the cargo? Apples?
At which port was the cargo loaded?
What was the destination and the
Who were the agents of the vessel at
Who are the shippers and the consignees?
S. P. Thamilchelvan head of LTTEs political wing, has put more than his two feet in his mouth, by claiming that the vessel destroyed by the Sri Lankan Navy is a merchant vessel, manned by eleven LTTE cadres (experienced officers of the Sea Tigers according to Balansingham) and owned by the LTTE. Besides threatening that the incident would have far reaching consequences for the peace process, SPT has also accused the Navy of violating international law by destroying the vessel "which was not involved in any illegal action".
Fine SPT. However, since the credibility of the LTTE is zero, it is in the interest of the peace process and the LTTE for SPT to provide answers to the following, through the media:
a) What was the name of the vessel?
b) When and in which country was the vessel registered?
c) What was the flag, the vessel was flying?
d) What is the name of the P & I Club with which the vessel was insured against 3rd party claims?
e) Was the vessel manned by qualified crew possessing certificates recognised by the international community including Sri Lanka and as required by the applicable international conventions? (STCW Convention)
f) What was the cargo (apples?) the vessel was carrying?
g) At which port/ports was the cargo loaded?
h) What was the destination of the vessel and the route taken?
i) Who are the agents of the vessel at the destination?
j) Who are the shippers and who are the consignees?
k) What is the name of the company owned by the LTTE in whose name the vessel would have been registered?
l) Could SPT also oblige by giving the names of the other cargo ships owned by the LTTE and their nationalities?
For the information of SPT all ocean going vessels including naval vessels must have a clearly visible name or number and fly the flag of its nationality. In terms of the United Nations Convention on the Law of the Sea (UNCLOS) and IMO conventions such as Safety of Life At Sea (SOLAS), the vessel must also be manned by qualified and competent crew possessing internationally recognised certificates. The vessel must also carry certificates of its registry as well as other certificates required by other applicable international conventions. If the Sea Tigers and the vessel had such certificates, which authority issued them?
Failure by SPT to provide the answers for the sake of the peace process and the LTTEs credibility, has to be interpreted as proof that the LTTE vessel was in fact a rogue ship, engaged in illegal activity in violation of international law.
SPT appears to be suffering from the grievance that the vessels right to innocent passage has been violated. Hence for his information I quote Article 19 of UNCLOS, on the meaning of innocent passage:
1) Passage is innocent as long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
2) Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State, if in the territorial sea it engages in any of the following activities:
a) Any threat or use of force against the sovereignty, territoril integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of United Nations.
b) Any excercise or practice with weapons of any kind.
c) Any act aimed at collecting information to the prejudice of the defence or security of the coastal State.
d) The launching, landing or taking on board of any military device.
In terms of article 91 of UNCLOS "ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship".
Article 95 provides immunity to warships on the high seas as follows:
"War ships on the high seas have complete immunity from the jurisdiction of any state other than the flag State."
If in fact the LTTE vessel was registered in some country (such as Honduras, Belize or Cambodia) it is the duty of the flag state to immediately cause an inquiry by a qualified person in to any marine casualty or incident of navigation on the high seas involving ships flying its flag and causing loss of life or injury to nationals of another State (Article 94). Hence could SPT explain why no flag state has taken any action so far, if in fact the vessel was operating in compliance with international law. Was it registered in Eelam?
For the information of both SPT and the SLMM head, Article 110 provides the right to our Navy to challenge on the high seas any foreign ship other than a war ship, if our Navy has reasonable ground for suspecting that the ship it encounters on the high sea is without nationality even though flying a foreign flag.
Both SPT and the SLMM head are well advised to study Article 111 of UNCLOS which gives our Navy the right of "Hot Pursuit". This article states: "The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reasons to believe that the ship has violated the laws and regulations of that State..." The right to hot pursuit shall apply mutatis mutandis to violations in the exclusive economic zone including safety zones, etc. The convention also states in paragraph 5 of Article 111 that the right of hot pursuit may be exercised only by war ships or military air craft.
Several other conventions including Sri Lankas shipping laws and regulations could be quoted to prove beyond all reasonable doubt, that the LTTE vessel was in gross violation of every applicable international law. Hence, the Sri Lankan Navy had not only the right but the duty to challenge the LTTE vessel and to destroy it when the LTTE vessel fired at the Naval vessel and attempted to escape. SPT and the Norwegians (whose principal industry is shipping) should be aware of several conventions, particularly the Umbrella Convention UNCLOS which stipulates the rules to be observed by all ocean going vessels, whether commercial or military for the safety of navigation of ships using the sea lanes. It is for these reasons that several Naval fleets of USA, UK, France, Russia, etc. patrol international sea lanes to protect peace and the genuine merchant vessels from the gun carrying rogue ships and pirates.
May I remind SPT and his Norwegian friends that the US Navy recently forcibly stopped a vessel in international waters, upon suspicion that it was carrying military cargo to Iraq from North Korea.
Over to you SPT, if you still maintain that the LTTE vessel was an innocent merchant vessel.
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