This again is not my effort. But as you see the author has signed at the bottom. I have posted this here only so that if someone loses his way and ends up in my blog, then he should read this.
QUOTE
To,
The President of India, 3rd July 2009
INTRODUCTION
The case of Capt Glen Aroza of Mangalore, India, detained since 17 April 2009 taken at gunpoint from the high seas, to HuaLien, Republic of China(Taiwan), was referred to DG Shipping and Ministries of Shipping and External Affairs but there has been no cogent response at all from any of these authorities so far, and they have not informed Mrs Preetha Aroza about factual information obtained from ROC Taiwan, if any collected. A 2nd Officer (Bangladesh) is held in jail while AB Edwardo (Phillipines) is detained. Even earlier DG Shipping did nothing when Capt Raj Goel of India (Panama Flag, Japanese owner) was kept in Keelung, Taiwan Jail/ detention from 7 February 1996 to 22 June 1999, in gross violation of well settled international law and human rights principles. Mrs Preetha Aroza has requested me to take up this matter on her behalf.
INTERNATIONAL LAW
The law creating processes are:
1. International law in unorganised international societies(international customary law).
2. General principles of law recognised by civilized nations.
3. Treaties.
One of the 7 fundamental principles of international customary law is:
"Freedom of the High Seas" which has been formalised in Article 11 etc of UNCLOS 1958 / Articles 86, 87, 97 etc of UNCLOS 1982, derived from Articles 1, 2 & 3 of the 1952 Convention [ Brussels, 10 May 1952, 439 UNTS 233; UKTS No. 47 (1960). Cmd. 1128]
Another of the 7 fundamental principles of international customary law is:
"International Responsibility" which has two major propositions:
1. Breach constitutes an international tort.
2. Commission of an international tort involves the duty to make reparation.
Interaction of the rules governing the fundamental principles of international customary law:
1. Protection of nationals abroad; this rule has behind it the authority of the PCIJ, Permanent Court of International Justice & a host of international tribunals.
2. Freedom of Commerce & Navigation. In 1956, the International Law Commission, in its draft article 35, followed the approach of the 1952 Convention, stating that its position had the object of protecting ships and their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas, since such proceedings may constitute an intolerable interference with international navigation.[Report of the International Law Commission covering the work of its eighth session (A/3159), article 35 Commentary, para. (1), II YB ILC 1956, at 253, 281]
INCONSISTENCY OF TAIWANESE INTERPRETATION OF JURISDICTION ON HIGH SEAS WHEN FOREIGN NATIONALS ALLEGED TO BE INVOLVED IN COLLISION
"Maersk Dubai" 1996 - alleged butchering of 3 innocent boys on 2 separate dates at sea - "A Taiwanese diplomat in Ottawa, Leonard Chao of the Taipei Economic and Cultural Office, was quoted as follows “even if an investigation concludes that these allegations are true and the officers are shown to have contravened out country’s criminal code, the case will be dealt with accordingly by our law enforcement authorities. Other than the fact that the ship was Taiwanese, the accused officers (Captain-Shiou Cheng, Chief Officer-Chung-Chih Wu, Second Officer, First Mate, Chief Cook, Carpenter, and Chief Engineer) should be tried in their home state, not the state the crime was committed against. Thus, it is clear that the Republic of China has a right to demand the return of the Taiwanese sailors for the purpose of prosecution for the alleged offenses." Taiwan threatened to recall its representative from Canada as per media reports.
Nova Scotia Supreme Court in case of 7 Taiwanese officers who were arraigned before it noted as follows, "The Court noted that but for the lack of jurisdiction it would have committed all of the officers." [Romania v Cheng, (March 6, 1997) No. 128423 (N.S.S.C.) ]
But in the 10 June 2009 case of the "Koshiki" - "Lienhe" incident of alleged entry into Japanese waters / sinking of "Lienhe", Taiwan insisted that Japan release the Taiwanese master who was briefly held for questioning after hot pursuit /sinking of "Lienhe", as it was allegedly not in High Seas at commencement of "hot pursuit". Taiwan threatened to recall its representative from Japan as per media reports.
The NYK Japan Shipping "Tosa" (Panama Flag) case is no longer one that the Government of India can afford to overlook as it concerns Panama (Flag State), Phillipines, Bangladesh & India (Protection of nationals abroad), Taiwan(International tort) and Japan(owner), all of whom have independently signed/ratified the high seas convention on jurisdiction of flag state/crew nationality. This incident is a (second) slap (first being in 1996-1999) on the face of every Citizen of India as it has permitted the human rights of an Indian Citizen to be violated, once again, in breach of well settled international law (international tort requiring reparation) arising from Article 11 of the International Convention on the High Seas signed on 29 April 1958 by, among others, Republic of China (Taiwan), Bangladesh (through Pakistan), and Panama which came into force on September 30, 1962; its successor Article 97 of UNCLOS 1982 signed on 10 December 1982 has been ratified by Phillipines (1984), India (1995), Panama(1996), Japan (1996), Bangladesh(2001). Article 11 of 1958 and Article 97 of 1982. This is on the lines of Articles 1, 2 & 3 of the 1952 Convention [ Brussels, 10 May 1952, 439 UNTS 233; UKTS No. 47 (1960). Cmd. 1128]
TAIWAN ADHERENCE TO UNCLOS AND INTERNATIONAL JUSTICE SYSTEM
That Republic of China (Taiwan) demonstrates adherence to international law notably, Article 97 of UNCLOS 1982, and had been actively participating in PCIJ and ICJ (International Court of Justice) as is apparent from the the record below:
1. The jurisdiction of Hague Convention of 18 October 1907, in matters concerning US- China relations was ratified by Republic of China (established 1912) on 15 September 1914. [ Article II of Treaty of Arbitration between United States of America & Republic of China, 15 September 1914; American Journal of International law, supplement, Vol. X, p. 268]
2. Republic of China was a founding member of the League of Nations on 10 January 1920(ratified 16 July 1920), along with India & Bangladesh (through GB), Japan (withdrew 27 March 1933) and Panama. League of Nations was dissolved 18 April 1946.
3. Statute of the Court of PCIJ was signed by Republic of China on 28 January 1921 and ratified on 13 May 1922.
4. Articles 1 and 2 of Kellogg-Briand Pact, 27 August 1928, "the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means." Ratified by Republic of China (now at Taiwan), India &, Bangladesh, (through GB), Panama, Phillipines (through USA) and Japan.
5. One case was submitted by Republic of China to jurisdiction of PCIJ, Permanent Court of International Justice. ["Denunciation of the Treaty of 2 November 1865 between China and Belgium", PCIJ Order dated 25 May 1929, PCIJ, 1929 Series A, No 18]
6. From Republic of China - Chun Hui Wang was Deputy Judge of PCIJ from 30 January 1920- 6 December 1930 and Judge of PCIJ from 15 January 1931- 15 January 1936; Tien Hsi Cheng was a Judge of PCIJ from 8 October 1936- October 1945.
7. Republic of China was a founding member of the United Nations on 24 October 1945, along with India & Bangladesh (through GB), Phillipines (through USA) and Panama, till passing of Resolution 2758(XXVI) of 25 October 1971, when its place was taken by PRC. Japan had joined the United Nations on 18 December 1956.
8. Upon dissolution of PCIJ on 31 January 1946, Hsu Mo of Republic of China served as a Judge of ICJ from 1946 to 1956. Wellington Koo of Republic of China served as a Judge of ICJ from 1957 to 1964 and as its Vice President from 1964 to 1967.
9. Republic of China (Taiwan) was a member of the Inter-Governmental Maritime Consultative Organisation, ICMO (IMO since 22 May 1982) on its coming into force on 17 March 1958. Taiwan lost its place in the UN bodies to PRC on 25 Octopber 1971, since it claims to represent entire undivided China as it existed in 1949. Nevertheless Taiwan follows the UNCLOS and engages in co-operation with US, Japan and other countries on the high seas.
TAIWAN STAND ON ARTICLE 97 OF UNCLOS 1982 IN CANADA 1996
On 24 May 1996, when Canadian Police arrested seven Taiwanese (Republic of China) officers after some initial resistance, from the Taiwanese registered Maersk Dubai in a sorrowful saga involving the US, Canada, Romania, Phillipines and Republic of China. On the insistence of a Taiwanese diplomat, Leonard Chao, in Canada the flag state / crew nationality principle of the law of the sea was upheld as contained in Articles 1, 2 & 3 of the 1952 Convention, Article 11 of the International Convention on the High Seas 1958 and Articles 86, 87, 97 of UNCLOS 1982.(All Annexed below) (Detailed reports on the incidents of the "Maersk Dubai" and "Kasuga I" are also annexed.
CONCLUSION
1. It is crystal clear that Taiwan Courts have neither locus nor jurisdiction to commit the foreign crew of "Tosa".
2. The detention of the crew without jurisdiction is severe breach constituting intolerable international tort of vast magnitude, having hurt the psyche of each and everyone of the one billion common citizens of the Sovereign Democratic Republic of India.
3. Threats to severe relations by Taiwan, as reported by media in Canada and Japan to influence the course of justice must be stoutly resisted by the Government of India.
4. Money can not recompense the lost honour and the shame that the alleged sloth of the DG Shipping has brought upon us common citizens but nevertheless this citizen calls upon his Government if there be one to take forthwith action to obtain release of our honour and our citizen. Parliament needs must be seized of this grave matter.
5. Reparation must follow tort as night follows day and a sum of one billion dollars in reparation will hopefully dissuade such distasteful show of aggression by a nation that has adopted double standards in international law for far too long, and no civilization may permit of such continuing inconsistent approach to international judicature.
Regards.
Sarvadaman Oberoi
Colonel (Retd) Indian Army
Tower 1 Flat 1102, The Uniworld Garden,
Sohna Road, Gurgaon 122018 Haryana INDIA
Mobile: +919818768349 Tele: +911244227522
Website: http://www.freewebs.com/homeopathy249/
email: manioberoi@gmail.com
UNQUOTE
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