Compulsory Jurisdiction At Itlos

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International Tribunal has no procedure to deal with Taiwan, a province of China which is independent of China with US support

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Compulsory Jurisdiction At Itlos

  1. 1. COMPULSORY JURISDICTION AT ITLOS & CONNECTED MATTERS CONTENTS I. COMPULSORY JURISDICTION AT ITLOS 2 II. APPLICATION OF SECTION 301 OF UNCLOS 1982, Article 2 UNCH & Other Conventions TO TAIWAN 3 III. THE CASE FOR INTERNATIONAL LEGAL PERSONALITY (ILP) OF TAIWAN AS A STATE PARTY 4 IV. HAS THE TIME COME FOR INTERNATIONAL TRIBUNALS TO EXERCISE INHERENT POWER TO DO JUSTICE? THE PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION 7 V. GLOBAL MARITIME COMMUNITY CONTINUES TO RECOGNIZE TAIWAN AS A FLAG STATE - M.T. TOSA CASE 9 VI. SUGGESTED COMPOSITION OF CHAMBER OF SUMMARY PROCEDURE - CASE OF M.T. TOSA 10 VII. What the Indian diplomats have asked for is to “expedite a fair trial.” !!! 12 VIII. NAVIGATION RELATED TECHNICAL INVESTIGATION FLAWS IN INDICTMENT File No.: 2009-chen-tzu-ti-1873 DATED 16 JULY 2009 13 IX. SERIOUS DISCREPANCIES BETWEEN REPORTED NEWS STATEMENTS OF OFFICIALS AND INDICTMENT BY PROSECUTOR 16 X. NYKSM IN VIOLATION OF IMO Resolution LEG.3(91) adopted on 27 April 2006 Guideline VI 12.1 20 XI. TOSA CASE OF 17 APRIL 2009 CONSIDERED UNDER VARIOUS LAWS OF REPUBLIC OF CHINA AND IMPACT OF INTERNATIONAL LAW 31 XII. Taiwan Representation in India 45 XIII. EIGHT REASONS WHY CAPT GLEN AROZA OF INDIA CAN NEVER GET JUSTICE IN TAIWAN 46 1
  2. 2. I. COMPULSORY JURISDICTION AT ITLOS The President of the International Tribunal for the Law of the Sea clarified at Page 13 of The Gilberto Amado Memorial Lecture held during the 61st Session of the International Law Commission at Geneva, on 15 July 2009, "..... the prompt release procedure ..... when based on compulsory jurisdiction, may only be instituted ..... for alleged violation of fisheries legislation of the detaining State and for marine pollution or environmental damage. The prompt release procedure (when based on compulsory jurisdiction) cannot be used in cases of detention or arrest of vessels and crew for other reasons." 2
  3. 3. II. APPLICATION OF SECTION 301 OF UNCLOS 1982, Article 2 UNCH & Other Conventions TO TAIWAN 1. In response to reservations of Peoples Republic of China and two others, the Representative of the Republic of China to the United Nations stated that the Republic of China, a sovereign State and Member of the United Nations, had attended the United Nations Conference on the Law of Treaties in 1968 and 1969, contributed to the formulation of the Convention concerned and signed it on 27 April 1970, and that "any statements or reservations to the said Convention that are incompatible with or derogatory to the legitimate position of the Government of the Republic of China shall in no way affect the rights and obligations of the Republic of China as a signatory of the said Convention". In this view of the matter it can be interpreted that R.O.C. Taiwan has unconditionally accepted all "rights and obligations" under the Law of Treaties 1969. 2. Article 4 of the Law of Treaties 1969 which came into force on 27 January 1980 provides that this Convention applies only to treaties which are concluded by States, after the entry into force of the present Convention. 3. UNCLOS 1982 was not ratified by Taiwan, hence it does not, in general, apply to Taiwan. However the Law of Treaties 1969 clearly applies to Taiwan (acceptance dated 27 April 1970 and entry into force 27 January 1980). In view of Articles 30 (4) (b), 38, 63, 73 and 74 of the Law of Treaties 1969, Article 301 of UNCLOS 1982 applies to Taiwan and Taiwan is bound by its unconditional acceptance of "rights and obligations" under the Law of Treaties 1969, regardless of the status of its diplomatic relations with any State Party and regardless of any succession of States. 4. This is in view of "Article 38 Rules in a treaty becoming binding on third States through international custom." which article has been accepted by Taiwan on 27 April 1970. 5. On similar logic Taiwan has all the obligations under its treaties as executed before 25 October 1971 and existing on 1 January 1979 as elucidated in Section 3303 of Taiwan Relations Act 1979. 6. Taiwan is also bound by all its treaty obligations existing on 25 October 1971 including but not restricted to: (a) Paragraph 6 of Article 2 of the Charter of the United Nations relating to non member States. (b) Articles 1, 2 & 3 of the INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO PENAL JURISDICTION IN MATTERS OF COLLISION OR OTHER INCIDENTS OF NAVIGATION BRUSSELS, 10.5.1952 adopted by United Nations with ratification by Republic of China (Taiwan). (c) Article 11 of the International Convention on the High Seas, Geneva 29 April 1958 adopted by United Nations with ratification by Republic of China (Taiwan), reinforcing the legal framework for freedom of navigation on the high seas. 3
  4. 4. III. THE CASE FOR INTERNATIONAL LEGAL PERSONALITY (ILP) OF TAIWAN AS A STATE PARTY Introduction: It is well known that Taiwan fulfils the four elements to claim statehood as required under Article 1 of the ‘Montevideo Convention on Right and Duty of States 1933’. However, since 1946,there has been a shift from the earlier test of statehood from effectiveness/capacity to legitimacy/capacity with the Charter of the United Nations laying down that membership of States is to be approved by the UN General Assembly only after approval of the Security Council. In effect a minimum of 9 members of the 15 member Security Council including always the five permanent members — China, France, Russian Federation, the United Kingdom and the United States hold the key to admission of a non member State intending to apply for membership. As the entire territory of China (population 1.3 billion) including Taiwan (population 23 million) is currently claimed by China and also by Taiwan, it is no surprise that China as a permanent member of the Security Council would never permit Taiwan to pass the test of statehood from the current viewpoint of legitimacy/capacity under the Charter of the United Nations. As regards the earlier test of statehood from the viewpoint of effectiveness/ capacity as required under Article 1 of the ‘Montevideo Convention on Right and Duty of States 1933’, two permanent members of the Security Council, China and the United States have been maintaining informal relations with Taiwan, while abstaining from formal diplomatic relations. United States and Taiwan: In all its three Joint US-China communiqués the US acknowledged the Chinese position that Taiwan is part of China. Even so, the US House Subcommittee on Asia and the Pacific chairman Eni Faleomavaega was reported in a Taipei Times, Taiwan article dated 21 March 2009, "US resolution on TRA weakened" as stating that the future of Taiwan was “for people on both sides of the Strait to resolve.... it is the policy of the US to provide Taiwan with arms of a defensive character to maintain the capacity to resist any resort to force or other forms of coercion.....(Taiwan Relations Act 1979 is) vital to relations between the US and Taiwan.” (http://www.taipeitimes.com/News/front/archives/2009/03/21/2003439002 ) China and Taiwan: Taiwan's Cabinet-level Mainland Affairs Council chairwoman, Lai Shin-yuan, was quoted by Taiwan's Central News Agency as saying on 7 August 2009, "Lai reiterated that the two sides should respect the fact that they co-exist in international society and therefore should pursue international cooperation by treating each other with equality and dignity." (http://www.etaiwannews.com/etn/news_content.php?id=1025384&lang=eng_news ) 4
  5. 5. In an article dated 14 March 2005 "Four-point guideline on cross-Straits relations set forth by President Hu Jintao" on the official website of the Embassy of the People's Republic of China in the Kingdom of Denmark, reporting that Chinese President Hu Jintao set forth a four-point guideline on cross-Straits relations under the new circumstances, while attending a joint panel discussion of China's top advisory body members representing the Taiwan region, it was stated, "Peaceful reunification does not mean that one side "swallows" the other, but that the two sides confer on reunification through consultation on an equal footing." (http://www.fmprc.gov.cn/ce/cedk/eng/zt/AcrossTaiwanStraits/t187246.htm ) "Equality" in Cross Straits Relations: The two reports above indicate that the two sides, China and Taiwan, have been engaging each other in dialogue on cross-Straits relations on an "equal footing" or with "equality and dignity" over the last four years. The Case for Taiwan's ILP as a State Party: A State to be a member State of the UN requires to pass the test of legitimacy/ capacity. However, China, as a permanent member of the Security Council, would never permit Taiwan to pass the test of statehood from the current viewpoint of legitimacy/capacity. That Taiwan has its own set of laws, its own defence forces to guard its borders, and engages in international trade and relations independently of China is no secret. It even has non formal (read non diplomatic) relations with two permanent members of the Security Council, China and the United States. It also has trade relations with China through various private trade bodies. Taiwan briefly exhibited both effectiveness and capacity required of a State from 23 May 1895 to 21 October 1895 when it resisted the Japanese occupation after China gave up its claim to the island in favour of Japan. After the Japanese surrender, from 25 October 1945 till the massacre of 28 February 1947, it was an island province loosely governed by the KMT. After the KMT was defeated on the mainland by the Communists it moved into Taiwan in December 1949 with 600000 troops. The KMT continued to claim to represent the entire territory of China at the United Nations, whereas its writ was limited only to the island of Taiwan, till it was finally expelled from the United Nations on 25 October 1971. Not only was Taiwan stripped of its status as a member State of the United Nations (and member of the Security Council), the UN General Assembly also declared that Taiwan was a province of China (PRC). The status of Taiwan on 25 October 1971 as a State party had no doubt suffered extremely severe, almost fatal, damage, but it still had sizable armed forces fully capable of defending its maritime borders, a constitutional government in full control of the stable and permanent population of the erstwhile island of Formosa, and continuing trade, economic and diplomatic relations with some nations, a few of whom continued as member States of the United Nations. Under the Taiwan Relations Act 1979 the United States provided a shield against any forced re-unification of Taiwan by big brother China. Hence it is apparent that Taiwan has an ILP that has most of the traditionally accepted criteria of a State Party. 5
  6. 6. Effect of Denial of ILP as a State Party to Taiwan: It is true that “if international law withholds legal status from effective ... entities, the result is a legal vacuum undesirable both in practice and principle”.[Crawford, ‘The Criteria for Statehood in International Law’, 48 BYIL (1976/77) 93, at 145; Crawford, supra note 16, at 79.]. The International Courts have not dealt with a single case wherein Taiwan has been named as a State Party to the proceedings ever since its expulsion from the United Nations in 1971. That this has created an undesirable legal vacuum is apparent from the fact that no actions were brought against Taiwan for wanton acts against stowaways in 1996 (Maersk Dubai Case) and against seafarers in 1996 (Kasuga I Case) and 2009 (Tosa Case). Recommendation: The Island of Taiwan should be deemed to be a State Party amenable to the jurisdiction of International Courts for violations of human rights and also for threat to use force or actual use of force which is prima facie found to be in violation of international law. 6
  7. 7. IV. HAS THE TIME COME FOR INTERNATIONAL TRIBUNALS TO EXERCISE INHERENT POWER TO DO JUSTICE? THE PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION 1. Historically, it has been the foremost duty of the National Federal / Supreme Courts in all Nation States to uphold the Constitution of that Nation State, thereby ensuring the rule of law, which usually includes respect for international law and obligations. 2. The "principle of inherent right and duty of the Court knowing no limitations" [cf. Electricity Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, pp. 102-103, dissenting opinion of Judge Urrutia] is "indispensably necessary to the discharge of any (judicial) duties." [United States Commissioner Gore in the Betsey case (1797)]. Inherent power of the Court to do justice, therefore, may not, in a suitable case, be bound by precedent caselaw, procedure, rule or regulation. 3. The similar principle finds approval by many authors on EC Law, [National remedies before the European Court of Justice : issues of harmonisation and differentiation, Oxford 2004, Michael Dougan ] and the time has come, in the interest of upholding the principle of effective judicial protection, to extend this logic to the inherent powers of the emerging international tribunals, in a manner that has not been envisaged by any author upto now. The Federal / Supreme Courts in U.S.A., Australia, India and elsewhere have, in a few cases, not hesitated, in a fit case, to take cognizance of acts amounting to serious violation of constitutional provisions, and have shown the courage to register the case against such violation without any application made by the state/ non State parties involved, through the device of "Court on its Own Motion versus Respondent" 4. In the case of threat to use force by Taiwan Coastguard against M.T. Tosa on 17 April 2009 on the high seas, which has been highlighted in the international media over the last about one week, there has been a denial by the Taiwan Head of Mission in India that Capt Aroza was not jailed (media had only stated that he was detained) but no denial was made by the Taiwan Head of Mission in India of the media reports of the M.T. Tosa being taken under threat of use of force (ships and aircraft) from the high seas to Hualien Port in Taiwan. That no Flag State investigation under international safeguards has been instituted is also not denied. That a criminal trial may only follow the conclusion of Flag State investigation is also not a fact that is open to any kind of dispute. The criminal trial has been set for 20 August 2009 without the provision of a copy of the Flag State investigation being provided to the crew, in total negation of well settled principles of natural justice. The Report of the Master "Tosa - Events of 17.4.09" states "Between 17th /1300 and 18th / 1200: Vessel maintained position, informed CG that Tosa was awaiting instructions from Managers. Also passed on Managers contact details to the CG. During this time CG also threatened the vessel that if Tosa did not follow their orders, the CG vessels and aircrafts would use force for Tosa to proceed to Port. They were insisting that Tosa proceed to Hua Lien immediately." 5. These facts provide the prima facie ground enabling an international tribunal to excercise its inherent power of judicial presumption if it so desire. Is the presumed 7
  8. 8. ground serious enough to warrant such interference? 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]. Let us see what would be the effect if Panama is unable to proceed with the case before an international tribunal prior to 20 August 2009, for any reason whatsoever. The crew, some of whom have already spent upto 3 months in solitary confinement, would be almost certainly convicted in absence of impartial investigation and put in jail for 5 to 10 years or more, thus "such proceedings may constitute an intolerable interference with international navigation," IN FACT, THE 3 MONTHS OF SOLITARY CONFINEMENT OF THE SECOND OFFICER HAS ALREADY CREATED INTOLERABLE INTERFERENCE WITH INTERNATIONAL NAVIGATION. 6. It is for the international tribunal concerned with the law of the sea to decide whether or not, in its opinion such proceedings at Taiwan constitute an intolerable interference with international navigation. If, as is more than likely, the decision is in line with the 1956 position of the International Law Commission, then it may, in its wisdom, in the eventuality of no action or excessive delay by Panama, consider the matter for issuing notice on its own motion to Panama and Taiwan, sui generis (one of a kind or unique issue). 8
  9. 9. V. GLOBAL MARITIME COMMUNITY CONTINUES TO RECOGNIZE TAIWAN AS A FLAG STATE - M.T. TOSA CASE ROC (Taiwan) was a founding member of the United Nations. In 1972, when ROC (Taiwan) was divested of UN membership it also lost its IMO member status. However the global maritime community continues to recognize ROC (Taiwan) as a Flag State even as IMO only lists PRC (China) in its so called "White List." Today ROC (Taiwan) continues to regularly operate its ships to every maritime nation in the World including PRC (China). IACS is the only non-governmental organisation with a Permanent Representative at the IMO since 1969. IACS is the only non-governmental organisation enabled by IMO to develop and apply rules for classification societies. "IACS MONTHLY REPORT FOR JUNE 2007 OF THE VESSELS THE CLASS OF WHICH HAS BEEN/WAS SUSPENDED FOR MORE THAN 7 DAYS" reveals inspection of eight vessels "Flag (State) - TWN" with "Owner - R.O.C. Taiwan Coast Guard." In fact therefore, and in the eyes of law, R.O.C. Taiwan is indeed a Flag State and it continues to regularly operate its ships to every maritime nation in the World including PRC (China) on the basis that it is a Flag State. 9
  10. 10. VI. SUGGESTED COMPOSITION OF CHAMBER OF SUMMARY PROCEDURE - CASE OF M.T. TOSA 1. There has been no case before ITLOS involving a non member State, while there has been one case involving use of force by a member State (M.T. Saiga). 2. As regards cases involving threat to use of force are concerned, the matter of jurisdiction is well settled in international law, in accord with Paragraph 6 of Article 2 of the Charter of the United Nations read with Article 301 UNCLOS 1982 both of which refer to "State Parties" and not , as elsewhere in these conventions, to "member States." 3. However two issues are not well settled in regard to cases involving non member States: (a) Representation by a member of the nationality of the parties in the tribunal involving non member States. (b) Enforcability of a decision of ITLOS upon default by a non member State or non State party. 4. The problem of enforcing a decision of ITLOS upon default by a non member State or non State party was discussed in an article by learned members of ITLOS: "It is open to the injured State to secure compliance by its own means permitted by international law in this regard as also by recourse to more general diplomatic steps. Third States could also validly act in support of the court decision." The Charter of the United Nations entrusts the enforcement role of decisions of the ICJ to the Security Council. UN General Assembly Resolution 55/2 of 8 September 2000 calls upon "Members of the United Nations to 'ensure compliance' with the decisions of the ICJ,........Though not explicitly stated, this applies with equal force to decisions of all international courts and tribunals, whether within the framework of the United Nations system or outside." [The International Tribunal for the Law of the Sea : law and practice, 2001, Rahmatullah Khan; P Chandrasekhara Rao] 5. Representation by a member of the nationality of the parties in the tribunal involving non member States does not seem to have been discussed anywhere. However Paragraph 3 of Article 17 of the Statute of ITLOS, " If the Tribunal, when hearing a dispute, does not include upon the bench a member of the nationality of the parties, each of those parties may choose a person to participate as a member of the Tribunal." shows one workable solution. (a) In the inerests of doing justice by ROC Taiwan, no member of the 5 member Chamber of Summary Procedure should be of any of the nationalities who are in any manner involved in Case M.T. Tosa and hence should NOT be from: 10
  11. 11. (i) PRC (which claims Taiwan is a province of PRC) (ii) Panama (iii) India (iv) Bangladesh (v) Philipines (vi) Japan (vii) Singapore (viii) Any other nation as ITLOS may decide (b) One member each may be nominated from amongst the 21 members of ITLOS [excluding the nations listed in sub paragraph (a) above] in accord with Paragraphs 3, 4 & 5 of Article 17 by: (i) ROC Taiwan (non member State / non State party - exact status to be decided later on separately) (ii) Panama jointly with India, Bangladesh, Philipines, Japan & Singapore in accord with Paragraph 5 of Article 17. It would be advisable that Panama leave the selection to the better judgment of ITLOS (iii) Remaining 3 (or 4 if Panama and others so decide) members so as to be in accord with Rules of ITLOS. 11
  12. 12. VII. What the Indian diplomats have asked for is to “expedite a fair trial.” !!! Times News Network reporting on 4 August 2009 in "Indian govt was indifferent to our plight", quoted Capt Raj Goel "On July 19, 1996, the district court, Keelung, sentenced Goel and Dodla to four years imprisonment. Both appealed against the verdict. After many legal wrangles, they were finally set free by the high court on June 22, 1999." (It was only when the matter was raised in Parliament in 1999 that our Government acted - 3 years late.) Wenchyi Ong, Representative (equivalent to Ambassador) of Taiwanese Mission in India told the Deccan Herald a couple of hours ago that what the Indian diplomats have asked for is to “expedite a fair trial.” (SHADES OF 1996) If this is true then the worst nightmare of the Maritime fraternity could well unfold on the 20 August 2009 at Hualien, Taiwan, as a fair trial is impossible without first having an impartial and fair investigation under STCW 1978 and COLREGS 1972 / UNCLOS 1982 and providing one copy to each of the accused crew members. See also attached files detailing this impending grave miscarriage of justice. For "expedite a fair trial" read "expedite a rigged jury trial." While it is the JS(EA) who is dealing with the case, the action has shifted to Panama which does not fall under his jurisdiction. Possibly an important meeting is to take place in next 24 hours at Panama where NYK lawyers in Panama ( De Castro & Robles ?) will meet with Panama Foreign Ministry officials and Panama Attorney General to decide whether or not a case could be filed before ITLOS. As pointed out earlier Transcript of the oral communication between the Tosa and the CG119 - April 17th, 2009 to April 18th, 2009 was stated to be given only "to Taiwanese authorities and to experts appointed by our underwriters" by NYKSM. It has been refused to the defence lawyer for Capt Aroza. IT HAS NOT BEEN CONFIRMED BY NYK EVEN AFTER ASKING THEM WHETHER THIS VITAL TRANSCRIPT HAS BEEN GIVEN TO NYK LAWYERS IN PANAMA. Page 11 of INDICTMENT [File No.: 2009-chen-tzu-ti-1873]- Item 8 of checklist of exhibits and facts to be proved "Testimonies given by witnesses Hsu Kuo-Ching and Chu Cheng-Kuo during prosecutor’s interrogation" to prove "The fact that, on April 16, 2009, Defendant AROZA who was aboard TOSA put down a wrong instruction/order in the night order book" are yet to be provided to Capt Glen Aroza in English translation so that he may know what exactly is the case against him. There is insufficient pressure of the DG Shipping on NYKSM, Mumbai to produce all relevant documents even at this late stage. 12
  13. 13. VIII. NAVIGATION RELATED TECHNICAL INVESTIGATION FLAWS IN INDICTMENT File No.: 2009-chen-tzu-ti-1873 DATED 16 JULY 2009 BY Prosecutors Hsueh Chih-Yu AND Lin Shih-Chun of Hualien District Court of Taiwan Ser Indictment Technical Flaws 1 Page 8: The repeated forcible attempts to hoist the capsized Shin "Afterward, three Tomg Chyuan No. 86 to stand upright with a bulldozer hoists and a bulldozer damaged the hull. Later the correct method of pumping were brought in to help air into the now damaged but still unbroken hull with with the evidence proper use of two heavy-duty hoists made the ship float. collection operation The denial of joint inspection by both sides makes the and eventually proved charges at Page 12 “hull of the fishing boat Shin Tomg useless to enable the Chyuan No. 86 was damaged” unreliable and capsized Shin Tomg unacceptable as evidence in any civilized system of Chyuan No. 86 to stand jurisprudence. upright." Page 9: "It was not until 15:44, May 1 were two heavy- duty hoists deployed to hoist the hull and was air pumped into the hull so that the capsized Shin Tomg Chyuan No. 86 stood upright successfully and emerged from water to be afloat." Page 12: "11 A report made by the Criminal Investigation Bureau, Ministry of interior on evidence collected from the wreckage of the fishing boat Shin Tomg Chyuan No. 86 The fact that the hull of the fishing boat Shin Tomg Chyuan No. 86 was damaged." 13
  14. 14. 2 Pages 14-15: The International Convention on Standards of Training, "According to Certification and Watchkeeping for Seafarers 1978, as testimonies given by amended in 1995 (STCW-95) was adopted by the witnesses Hsu Kuo- International Maritime Organisation (IMO) in 1978 and Ching and Chu Cheng- came into force in 1984. During the late 1980s, it was Kuo who are officials clear that STCW-78 was not achieving its aim of raising of Keelung Harbor professional standards world-wide, and so IMO Bureau, Ministry of members decided to amend it. This was done in the early Transportation and 1990S, and the amended Convention is now referred to Communications, as STCW-95. Whereas the STCW-78 Convention during prosecutor focused almost entirely on knowledge, the emphasis of interrogation, STCW-95 has been shifted to practical skills and international maritime competence underpinned by theoretical knowledge. The customary practice: in standards set by the Convention applies to seafarers of addition to operating all ranks serving on sea-going merchant ships registered the helm, a sailor shall under the flag of a country Party to the Convention. The serve as a lookout Convention has already been accepted by 133 countries, man; if an officer is on including all major labour suppliers and shipping duty in the steering registries but R.O.C. Taiwan does not find a mention room/bridge and has here. Between 7 February 2007 and 11 May 2007 eight switched to manual vessels of R.O.C. Taiwan Coast Guard were got steering, the sailor at inspected for classification by an IASC member, DNV helm shall be in charge on specific request of owner. This resulted in a of operating the helm withdrawal of classification of all eight vessels. only; a senior sailor shall follow an order This may point to serious deficiencies in the way subserviently rather STCW 78 / STCW 95 is being implemented in R.O.C. than take charge of Taiwan. CCRS, R.O.C. Taiwan is currently amongst determining the course non-IACS Classification Societies. "Notice published of navigation. Even if a pursuant to Article 27(4) of Council Regulation (EC) No senior sailor finds that 1/2003 in Case 39.416 — Ship classification" on 10 a command given by an June 2009 has opened the way for non IACS members officer on duty is such as Taiwan's CCRS to consult technical data on wrong, the senior IACS database by 2011. As a direct result of this sailor shall not be decision IACS Quality System Certification Scheme is entitled to contesting also being modified so that requirements therein (the the wrong command Quality Management System Requirements and IACS given by the officer on Unified Requirements, Common Structural Rules, duty. In other words, a Unified Interpretations and Procedural Requirements) senior sailor only has can be applied equally by IACS Members and non-IACS to follow a superior Classification Societies (including non-Applicants for officer’s orders and IACS Membership). execute the orders. The International It is only in 2011 that any R.O.C. Taiwan entity or Convention on investigator would be able to meet the quality standards Standards of Training, requisite for navigation investigations of member Flag 14
  15. 15. Certification and State vessels on the high seas. Hence the so called Watchkeeping for investigation by witnesses Hsu Kuo-Ching and Chu Seafarers, 1978, or Cheng-Kuo who are officials of Keelung Harbor Bureau, 1978 STCW for short, Ministry of Transportation and Communications, R.O.C. provides: a competent Taiwan do not meet the quality standards for fair and seafarer, a helmsman, impartial investigation for the Panama Flag State vessel or a sailor shall M.T. Tosa. operate the helm or look out for danger in A proper investigation is sine qua non for proceeding the course of with any criminal action. No proper investigation having navigation of the been seen to be done makes the criminal trial at Hualien, vessel, or shall stand illegal, arbitrary and against the principles of natural guard at the end of a justice, which are recognized by all civilized nations. staircase of the vessel while the vessel was It shall therefore be incumbent upon Flag State, Panama moored to a harbor, to file for prompt release of crew as well as a separate and shall follow the application for provisional measures. orders given by the Chief Officer, a navigation sailor on duty, or the chief seafarer, clean/maintain the inside and outside of the hull, machines installed on the deck, and the living cabin, and prepare for the goods to be loaded or unloaded." 15
  16. 16. IX. SERIOUS DISCREPANCIES BETWEEN REPORTED NEWS STATEMENTS OF OFFICIALS AND INDICTMENT BY PROSECUTOR IN TOSA CASE Ser. Reported News Indictment Remarks 1 MOFA Pages 10 to 11: 1. “Mayday” was sent out at about confirms “The fact that Captain 2351 hours 16 April 2009 - how is it sinking of Ho Hsi-Chuan of the possible that the Coast Guard’s Taiwanese fishing boat Shin Tomg Maritime Patrol Directorate General fishing vessel Chyuan No. 86 sent out a received it only at 0038 hours or 0047 Mayday by way of http://www.taip hours on 17 April 2009? What was wireless radio at the eitimes.com/Ne happening from 2351 hours 16 April moment when the ws/front/archive accident happened” 2009 to 0047 hours 17 April 2009? s/2009/04/18/20 Was Fishery Communications Radio 03441397 Page 13: Station of the Su-Ao District unable Jenny W. Hsu “Important reporting to contact Coastguard? and Jimmy records of Fishing Boats, Chuang kept by the Fishery 2. Prosecutor has said the time of first STAFF Communications Radio distress call was 0000 hours on 17 REPORTERS, Station of the Su-Ao April, by Fishery Communications Taipei Times District Fishermen Radio Station, not even a hint to the Saturday, Apr Association, at 00:00 on English media in Taiwan after filing 18, 2009, Page April 17, 2009. The fact of the Indictment? that the fishing boat Shin 1: Tomg Chyuan No. 86 was 3. Assume for a moment that the hit and overturned by Hansen Hsu, TOSA at the aforesaid vessel capsized at 0000 hours near to spokesman for time and place.” incident location 25° 46.232'N 123° the Coast 05.186'E. Location of recovery of Guard’s Page 6: vessel is 25 50’N 123 08’E, a good Maritime Patrol “At 00:47, April 17, the 4.54 nautical miles away (at its 6 Directorate Coastal Patrol knots full speed) a full 40 minutes General, said Directorate General away. This may point to capsize of "Coast Guard (under the Coast Guard fishing vessel only around 0030 received news Administration of the hours. Possible scenario: since Shin of the incident Executive Yuan) received Tomg Chyuan No. 86 was closely at 12:38am the accident report, set followed at all times by Shin Tomg up an emergency yesterday" Chyuan No. 82 the 11 crew members response center, and were immediately rescued after promptly dispatched patrol cruiser Lien- capsize around 0030 hours 17 April Chiang of the Northern 2009. Thereafter (at 0038 hours) the Sector Flotilla, cruiser first distress call was sent out by Shin RB02 of the Keelung Tomg Chyuan No. 82 and received by Flotilla, and cruisers Coastguard (as finds a mention in The 6001 and 10023 of the China Post 18 April 2009) by 0038 Su-Ao Flotilla to the hours (as finds a mention in Taipei scene of the accident” Times 18 April 2009). 16
  17. 17. 2 MOFA Page 6: 1. The sailors were rescued by Shin confirms “At 00:30 next Tomg Chyuan No. 82 at 0030 hours sinking of morning, the 11 according to Prosecutor but the boat Taiwanese sailors, namely Chen sank at 0043 hours according to fishing vessel Chi-Ming, Sun Shih- Association for East Asian Relations Jenny W. Hsu Chou, Trisukasih, Secretary-General Peter Tsai, 5 and Jimmy Magadia Arvin minutes after receipt of information Chuang Andaya, Tasiwan, of its “collision” at 0038 hours by the Taipei Times Magadia Fernando Coastguard as per reported statement Apr 18, 2009, Jrandaya, Rasiwan, of Hansen Hsu, spokesman for the Page 1: Asroni, Muktarudin, Coast Guard’s Maritime Patrol Adikin, and Directorate General. Did the fishing Association for Taufikurrohman were vessel take 13 minutes to sink after East Asian rescued by Shin Tomg the fishermen jumped off around Relations Chyuan No. 82 fishing 0030 hours or did it take 53 minutes Secretary- vessel in the vicinity of to sink after “collision” with the General Peter the scene of the Tosa? Tsai, "fishing accident” boat .... sank at 2. Shin Tomg Chyuan No. 78 fishing about 12:43am vessel and Shin Tomg Chyuan No. yesterday 82 fishing vessel were in the vicinity morning." of Shin Tomg Chyuan No. 86 fishing vessel, all 3 owned by Chen Wen-Li from 2350 hours 16 April 2009 till 0043 hours 17 April 2009. The Coastguard confirms no distress call was made by any of these three boats till 0038 hours 17 April 2009. 3. Coast guards Page 3: These facts make it almost certain searching for “two other vessels, that the first distress call was sent by crewmen from namely Taiwan Shin Tomg Chyuan No. 82 at 0038 capsized boat registered fishing boats hours on 17 April 2009 and was not The China Post, Shin Tomg Chyuan No. only picked up by Taiwan Coastguard April 18, 2009 82 (Target 1 for short) but also Japan NAVTEX and Japan “The accident, and Shin Tomg Chyuan Coastguard. It is practically which took No. 86 (Target 2 for incontrovertible proof that accident place ..shortly short), had been took place around 0038 hours 17 after midnight .. manually locked as April 2009 only and not at 2350 hours the result of a targets.” on 16 April 2009. Japan Coastguard collision reached the site 25 50’N 123 08’E at between … 0215 hours 17 April 2009 while Hsin Tung Taiwan Coastguard reached the site Chuan No. 82, 25 50’N 123 08’E at 0247 hours. The and a cargo prosecutor has alleged “collision” vessel, the took place at site 25° 46.232'N 123° 17
  18. 18. officials said.” 05.186'E. 4 Three Page 4: 1. The 2nd Officer has reported that Panamanian “Shin Tomg Chyuan after taking evasive action at 2350 sailors indicted No. 86 was sucked by hours he observed the lights of the Jimmy Chuang the current created by fishing vessel (Shin Tomg Chyuan Taipei Times the trail left behind by No. 86) for upto 30 minutes after Jul 18, 2009, TOSA and then hit by 2350 hours 16 April 2009 and that it Page 2: the billows generated proceeded steadily away having Hsueh Chih-yu, by TOSA” passed Tosa at a distance of about 3 the prosecutor cables. in charge of the Page 13: investigation “The fact that the 2. This time difference also ties in said, “He did fishing boat Shin Tomg with the 4.54 nautical miles between not send any Chyuan No. 86 was hit alleged “collision” spot (25° SOS message and overturned by 46.232'N 123° 05.186'E) and the and did not stop TOSA at the aforesaid capsize spot. (25 50’N 123 08’E) [the vessel] to time and place (25° rescue the 46.232'N 123° 3. The timings of distress calls also Taiwanese 05.186'E)” ties in with the premise that a second fishermen incident occurred 40 minutes later whose boat was that caused capsize 30 minutes later hit and sunk by and sinking within about 13 minutes the Tosa." by 0043 hours 17 April 2009. 5 Three Page 14: Prosecution has shifted its stand on Panamanian “The Criminal Code, jurisdiction from territorial waters to sailors indicted Article 4 expressly Criminal Code Article 4.Decisions Jimmy Chuang provides: If the act or the regarding jurisdiction are to be taken outcome of a crime strictly in consonance with Criminal Taipei Times committed occurs within Procedure Code, Chapter II Jul 18, 2009, the territory of the JURISDICTION OF COURTS, Articles "Hualien .. 4 to 16 and not the Criminal Code Article Republic of China, the Chief place in which the crime 4. Taiwan Criminal Procedure Code Prosecutor is committed shall be Article 5, “If an offense is committed on Huang Yi-chun deemed the territory of a vessel or an aircraft of the Republic of said the three the Republic of China. China outside the territory of the Panamanian Victim Hsu Tsung-Wen Republic of China, the court of the place sailors would was killed inside a where the vessel is registered or from be punished Taiwanese vessel which the aircraft departed or landed according to because of a criminal act after the commission of the offense shall committed by these three also have jurisdiction.” This applies Taiwan’s defendants, and thus the onboard a vessel flying the flag of Criminal Code criminal act should be Taiwan and could not be extended to any because the vessel flying the flag of Panama upon the regarded as committed incident within the territory of the high seas. Surrounding circumstances of occurred in Republic of China illegal detention on high seas do not Taiwan’s pursuant to the Criminal inspire confidence that fair and proper territorial Code, Article 3, second decision on jurisdiction would be given waters." half.” under said Article 5 (in consonance with 18
  19. 19. international law in the facts and circumstances of this case.) 6 Three Page 13: A number of well directed internet Panamanian “chief engineer Hsu searches failed to turn up even one news sailors indicted Tsung-Wen of the item on recovery of body of Chief Jimmy Chuang fishing boat Shin Tomg Engineer Hsu Tsung-Wen. In an article datelined 19 April 2009 "Investigation Taipei Times Chyuan No. 86 fell into turns up dirt on foreign-owned freight Jul 18, 2009: water and drowned ship" Taipei Times, Taiwan reported, when the said accident "Officials from the Maritime Patrol “Hsin Tung- happened. ” Directorate General under the Coast chuan 86 Guard Administration said a Japanese captain Ho Hsi- Page 16: diver combed the interior of the sunken chuan (何西川) “chief engineer Hsu ship on Friday evening but did not find and chief Tsung-Wen who was the missing men." After the Japanese engineer Hsu confined to the cabin diver who searched the vessel reported and drowned” that there were no bodies inside it the Chung-wen (許 vessel was finally recovered and brought 聰文) went Page 9: to port on 1 May 2009. In an article missing after datelined 6 May 2009 "CGA confirms “a task force of the the boat sank Panama vessel hit fishing boat" The Coast Guard China Post, Taiwan also did not report approximately Administration found 41km off the recovery of any body including that of the corpse of Hsu Chief Engineer Hsu Tsung-Wen from the Diaoyutai Tsung-Wen in the recovered vessel. In an article datelined islands and engine room 18 July 2009 "Three Panamanian sailors have been entrance.” indicted" Taipei Times, Taiwan reported presumed “Hsin Tung-chuan 86 ..chief engineer dead.” Hsu Chung-wen went missing after the boat sank .. presumed dead.” Out of the hat of the prosecutor now comes the report of the prosecutor that: (1) chief engineer .. fell into water and drowned when the said accident happened (Page 13) (2) chief engineer .. was confined to the cabin and drowned (Page 16) (3) a task force of the Coast Guard Administration found the corpse of Hsu Tsung-Wen in the engine room entrance!!! (Page 9) 19
  20. 20. X. NYKSM IN VIOLATION OF IMO Resolution LEG.3(91) adopted on 27 April 2006 Guideline VI 12.1 WITHHOLDING CRUCIAL EVIDENCE FROM DEFENCE & GIVING IT TO PROSECUTOR NYKSM DENIES DEFENSE REQUEST OF TRANSCRIPT OF COMMUNICATIONS OF TOSA, CG 119 & NYKSM BUT GIVES IT TO TAIWAN - TRIAL 3.45 PM 20 AUG 2009 1. There is now a very strong suspicion of NYK Lines, Japan and NYK Ship Management, Singapore (NYKSM) (with unofficial insider confirmation received from more than one insider) having colluded with the Taiwanese local authority in order to obtain prompt release of their captive vessel. (See also Email of NYKSM below). The Indian Master and other crew have been ordered to be in Taiwan criminal court for the trial on 20 August 2009 in what is one big resounding slap on the face of the UNITED NATIONS and a snide message to India that it is "A Nation of one billion weak kneed pushovers", who pretend not to recognise Taiwan, yet allow it to maintain four economic/ trade and even one foreign relations office on Indian soil, the same Nation that did not give a damn when its own Capt Raj Goel was detained in Taiwan from 1996 to 1999; Capt Glen Patrick Aroza [DOB 17 Mar 1972 Indian Passport No Z1730530] is now detained and being tried on questionable jurisdiction without proper rules of evidence in a serious insult to Indian Honour, if any is left, as well as an insult to the international community spearheaded by the UNITED NATIONS. As the Panama Ambassador said, while promising to obtain information from his Foreign Ministry, at a meeting on 22 July 2009, this issue can lead to any kind of a grave international situation. The Taiwan Ambassador conveyed that the situation is very sensitive hence he would not meet us, but his deputies would meet us - on 22 July 2009 his deputy promised nothing except to forward our letter to their Foreign ministry. 2. There is no way that the 2nd Officer Mohammad Rezaul Karim [DOB 15 Apr 1981 Bangladesh Passport No. V0149777],could have been put in solitary confinement for 3 months unless (so as to enable Tosa to be quickly released by 1 May 2009) there was some sort of collusion between the Taiwan prosecutor, NYKSM and the Panama investigators (who have yet to make their investigation of 24 April 2009 public) to gloss over the evidence. As the attached papers on Taiwan Justice System show there is in Taiwan "An Adversarial System that Lacks Adversaries." The defence lawyers can not defend; system is so harsh that local defence lawyers dare not defend, and defence lawyers are in awe of the prosecutor who enjoys powers as draconian as the judge. Strong lawyers from outside Taiwan are not allowed to appear even for non nationals being tried in violation of international law. If this is not FORCE what else is? See extracts from War aggression and self defence by Yoram Dinstein, attached. 3. This is a clear and prescient signal to EVERY Master NEVER AGAIN to keep quiet for months under threat/persuasion of ship's managers/ insurers, and on orders of the ship's managers, to let the agents and lawyers take charge and get papers blindly signed on the dotted line. Masters LEARN YOUR RIGHTS & DUTIES (TO CREW) KNOW YOUR MARINE LAW. 20
  21. 21. 4. The threat to use force by the Taiwan Coast Guard is public knowledge. It is no secret as clarified below, however the IMO must IMMEDIATELY order a high level investigation, obtain all the records from NYKSM, and enforce its Resolution A.987(24) adopted on 1 December 2005 and Resolution LEG.3(91) adopted on 27 April 2006 for FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT. "ENOUGH IS ENOUGH" The Taipei Times, Taiwan, Saturday, Apr 18, 2009, Page 1 reported "The Tosa however, was stopped by Coast Guard ships about 74km from Hualien at 11:30am yesterday." The China Post, Taiwan, Wednesday, May 6, 2009 reported "The Tosa at first refused to cooperate with the probe and wanted to continue on its voyage to Singapore, the officials said." This lends an extremely certain degree of credence to the Report of the Master, "During this time CG also threatened the vessel that if Tosa did not follow their orders, the CG vessels and aircrafts would use force for Tosa to proceed to Port. They were insisting that Tosa proceed to Hua Lien immediately. Fearing threat to Vessel and crew, Master maintained position and awaited further instructions from Managers, assuring the CG119 of Tosa’s full cooperation at all times." 5. NYKSM has stated that it has handed over the information sought by Preetha Aroza (wife of Capt Glen Aroza) only to Taiwanese authorities and the underwriters and has refused to hand it over to anyone else including Preetha Aroza. NYKSM needs to answer the following questions: (a) Was this data handed over ONLY to the Taiwanese authorities and the underwriters and to nobody else? (b) Why was it not handed over to Panama as Flag State which is mandated to investigate under IMO Resolutions and UNCLOS 1982? Does Japan not recognise UNCLOS 1982? (c) Why was it not handed over to DG Shipping India in terms of reporting regulations accepted by NYKSM in terms of License No 120, as an Indian crew member is involved in the incident? (d) There is a critical requirement of international law to hand over this data to the Flag State so as to prove beyond any doubt the threat to use force made by Taiwan. Why has this not been done? 6. As per IMO Resolutions of 1 Dec 2005 and 27 Apr 2006, "shipowners have an overriding duty to protect the rights of the seafarers employed or engaged," also they must "use all reasonable means to preserve evidence" and they must also "ensure that no discriminatory or retaliatory measures are taken against seafarers." Any action of NYKSM to deny this transcript is patently discriminatory in so far as Prosecutor has been given this transcript but seafarer has been denied the same. 21
  22. 22. 7. The handing over to the Prosecution "Taiwan State" of transcript and denying the same to the Defence "Capt Glen Aroza" is a clear violation of all the three above mandates of IMO. This robs him of an opportunity for a fair trial and is unacceptable from any viewpoint, individual, national or international. A State that has been seen to have used threat to use force to abrogate international law can never be expected to provide even a semblance of a fair trial. This denial of transcript also interferes with the capacity of Panama to establish jurisdiction in terms of Article 301 of UNCLOS 1982 before ITLOS (alongwith Article 2(6) of the Charter of the United Nations.) 8. ITLOS. The Rules of the Tribunal provide that it is to give priority to applications for the prompt release of vessels or crews over all other proceedings before the Tribunal. The hearings of the application (normally limited to 2 days) are required by the Rules to commence within 15 days from the first working day after the application is received. The judgment of the Tribunal is then required to be given within 14 days of the closure of the hearing. Of all proceedings before international courts and tribunals, this mechanism is thus exceptionally fast.Only the flag State is entitled to bring prompt release proceedings. {Prompt release cases before the International Tribunal for the Law of the Sea, Christopher Staker (Barrister, 39 Essex Street.) [Sans Frontières, The bi-annual newsletter of SJ Berwin’s International Arbitration Group, Issue 1 2004/2005]} 9. As per IMO Resolution LEG.3(91) adopted on 27 April 2006 and Resolution A.987(24) adopted on 1 December 2005, FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT, "shipowners have an overriding duty to protect the rights of the seafarers employed or engaged," also they must "use all reasonable means to preserve evidence to minimize the continuing need for the physical presence of any seafarer; " and they must also "ensure that no discriminatory or retaliatory measures are taken against seafarers." 10. The handing over to the Prosecution "Taiwan State" of transcript of communications and denying the same to the Defence "Capt Glen Aroza" is a clear violation of all the three above mandates of IMO. INCIDENT INVESTIGATION & INDICTMENT - TRIAL COMMENCEMENT DATE 20 AUGUST 2009 AT 3.45 pm 11. The Taipei Times, Taiwan, Saturday, Jul 18, 2009, Page 2 reported "Hualien District Prosecutors’ Office Chief Prosecutor Huang Yi-chun said the three Panamanian sailors would be punished according to Taiwan’s Criminal Code because the incident occurred in Taiwan’s territorial waters." 12. But in the Indictment (TRANSLATION) received today, Prosecutor claims jurisdiction is because of "criminal act onboard a Taiwanese vessel" on the high seas and that the TOSA was detained pursuant to Article 16 of the Law on the Exclusive 22
  23. 23. Economic Zone and the Continental Shelf of the Republic of China. These are misconceived claims and have no basis whatsoever in national or international law. The prosecutor forgets that onboard the Taiwanese vessel on the high seas the Taiwan law applies but onboard the Panama flagged vessel on the high seas Panama law shall apply. 13. Surprisingly the entire blame is thrust upon the crew of TOSA by quoting (incorrectly and with poor knowledge of COLREGS and STCW Conventions) the very Conventions of LOS that Taiwan claims it is not subject to, as regards jurisdiction clause of UNCLOS 1982. 14. When it suited Taiwan in May 1996 they quoted UNCLOS 1982 chapter and verse to release their crew (3 stowaways died after being thrown overboard on 2 separate occasions on the high seas, by Taiwanese nationals, one whose body was sucked into the propellor leaving a trail of blood, in the infamous case of MAERSK DUBAI, a vessel partly owned by the Taiwan Government) from Canada and prevent their repatriation to Romania. 15. The technical correctness of the actions of the 2nd Officer, is apparent to any impartial observer. A last minute navigation error of the Captain of the 'ZHUYUYU 4195' (starboard of 'ZHUYUYU 4195' was to port of TOSA) forced 300,000 ton TOSA to take evasive action, whereby it passed TOSA at about 3 cables as per 2nd Officer (ARPA errors are well known so the 1.8 cables in the indictment is only an ARPA figure which has often been found to be unreliable, eg on 6 September 1996 collision with the fishing vessel Galaxy, on 26 November 1996 collision with the fishing vessel NIMBUS, on 21 June 2000 collision with the fishing vessel Sue M, on 3 August 2000 ATSB issued a formal alert on ARPA limitations for fishing vessels at "http://www.atsb.gov.au/media/ 36762/masters_bridge_watch.pdf" , on 29 May 2003 collision with the fishing vessel Sassenach, on 21 August 2003 collision with the fishing vessel Jenabar, in December 2004 in Safety Bulletin 05, ATSB formal alert on ARPA limitations for fishing vessels ) ; the 2nd Officer rightly followed up the port manouevre with a starboard manouevre so as to avoid the stern of the TOSA from hitting the 99.81 ton 'Shin Tomg Chyuan No. 86' (Target 2) one of four fishing vessels in the vicinity. It is well established by now that separation of 2 to 5 cables is routine in passing through high concentration of fishing vessels; if at the last minute one of the fishing vessels breaches COLREGS a collision is inevitable; in this case an inevitable collision was avoided with the 'Shin Tomg Chyuan No. 86' on account of the quick thinking of the 2nd Officer. The 2nd Officer is of the firm opinion that the separation was about 3 cables (not withstanding the (unreliable?) ARPA reading of about 1 cable). He observed the 'Shin Tomg Chyuan No. 86' for about half an hour after 2350 hours, and seeing/receiving no distress signals/ transmission proceeded on the voyage, convinced that there was no cause to alert the Captain. This was confirmed in his order to AB Mallorca Caballero Eduardo Jr, [DOB 17 Mar 1972] at about 2354 hours, an order mistakenly alleged by prosecutor to be a proof of guilt. In his handing over report to Chief Officer at 0300 hours (0400 hours ships time) he mentioned the incident in the normal routine. 23
  24. 24. 16. The prosecutors report mentions course of TOSA as 200 degrees before 2338 hours (all timings Taiwan Time), there is a mention of 20 degrees helm to port around 2341 hours to skirt Target B, followed by hard port soon after to avoid Target 1 and Target 2 around 2350 hours; at 2351 hours from a course of 52.7 degrees with speed 7.5 knots, 2nd Officer ordered hard starboard and sometime thereafter TOSA was on course 220 degrees with speed 12 knots as per report of prosecutor. 17. The indictment of hit and run is misplaced since every action on a modern ship is recorded, there were 4 fishing vessels in close vicinity observing everything, none of them sent out any distress signal or blamed TOSA around 2350 hours (time of incident). The white marker on the attached map shows the incident spot [25 46.232'N 123 5.186'E], Point 1 [25 48.32'N 123 5.311'E] and Point 2 [25 47.587'N 123 5.134'E] show location of TOSA at 2338 and 2341 hours; the Japan Navtex reported capsize location at Point 'S' [25 50N 123 08E] about 4.54 nautical miles from Point of incident. At 6 knots (nearly its full speed) the 'Shin Tomg Chyuan No. 86' would take 45 minutes to cover the distance from incident spot to Point 'S', that is by about 0035 hours the 'Shin Tomg Chyuan No. 86' would have been at Point 'S'. 18. No one radioed the TOSA till 0820 hours, although it was known that it was nearby and there was never any distress call or any other call received onboard TOSA as per record onboard TOSA (SVDR). 19. At 0820 hours CG 119, Taiwan intercepted TOSA and as per report of Master "CG asked for Tosa’s [0100] hrs position, last port and next port." 20. The inquiry about 0100 hours position of TOSA also points to capsize around 0043 hours or so and not at 2350 hours. Master's Report, "At about 1000 hrs: Tosa received a navtex from Japan radio which stated sunken fishing boat in said position and said time. Tosa was approximately 1 hour away from this position, at the alleged time of capsizing of the fishing trawler." The said position (navtex from Japan radio) was later confirmed as 25 50'N 123 08'E by the Master. 21. The prosecutor has also stated in the indictment that, "At 00:30 next morning, the 11 sailors, namely Chen Chi-Ming, Sun Shih-Chou, Trisukasih, Magadia Arvin Andaya, Tasiwan, Magadia Fernando Jrandaya, Rasiwan, Asroni, Muktarudin, Adikin, and Taufikurrohman were rescued by Shin Tomg Chyuan No. 82 fishing vessel in the vicinity of the scene of the accident" [One Taiwanese fisherman, two Chinese, six Indonesians and two Filipinos.] 22. Even though there were 4 fishing vessels close together, the first reports,are known to have come in only by about 0043 hours. The Taipei Times, Taiwan, Saturday, Apr 18, 2009, Page 1 reported "Tsai said there were no confirmed details about the accident except that it was suspected that a Panamanian-registered cargo ship had hit the fishing boat before it sank at about 12:43am yesterday morning......Tsai said the Japanese search and rescue boats arrived on the scene at about 2:15am, while Taiwanese rescue boats 24
  25. 25. arrived at 2:47am." Force 5 clear weather would not hamper/delay rescue or capsize a 99 ton vessel. Chart: Tosa Course from 2338 to 2350 on 16 April 2009 As Per Prosecutor and comparison point of capsize 23. The Prosecutor is claiming there was some superficial damage to the vessel but this could well be accounted for by the process of retrieving the vessel from the ocean floor. The Master was not permitted to inspect the vessel after recovery by the Prosecutor. The press reports state that the Chief Engineers body was found in the engine room but the prosecutors report states that he was "confined to his cabin." Was he locked up inside or was he sleeping is not clear. Post mortem reveals he drowned to death. Is it possible that, on being abused by Captain Ho Hsi-chuan for not doing proper lookout duty at 2350 25
  26. 26. hours, the crew locked up the Chief Engineer Hsu Chung-wen, killed the Captain, threw him overboard and around 0030 hours at full speed turned hard to port or starboard to capsize the boat, so as to cover their tracks? This would account for the lack of any distress transmission or flares from the 'Shin Tomg Chyuan No. 86' from 2350 hours to 0043 hours, the time of its sinking to the bottom of the sea. The many cases of fishermen being thrown overboard on Taiwanese fishing vessels and captains being killed open such a possibility here as well. 24. It is crystal clear that this boat sank at Point 'S' [25 50N 123 08E] after a gap of more than 45 minutes after safely crossing the TOSA whence it proceeded at a good speed of 5 to 6 knots, to Point 'S', a good 4.54 nautical miles from the alleged incident spot [25 46.232'N 123 5.186'E]. The real causes of its capsize and sinking have not been established and may never be established. The reasons are perhaps poor co-ordination and poor learning from accidents due to communication gaps between various agencies and the lack of an overarching National Transportation Safety Board (adopted by many countries on the advice of the ICAO and IMO) and recommended by Taiwanese scholars who have also advised the setting up of such a body in many published articles. Poor human resource management practices in the fishing industry, 30000 odd fishing vessels, many of old vintage, jostling for space and for trained crew compound the problem. Vessels of PRC and Japan make for a disaster zone with over 600 accidents to Taiwanese fishing vessels annually, many of them not even being reported. Regards. Sarvadaman Oberoi ---------- Forwarded message ---------- From: Hemant Pathania <hs.pathania@nyksm.com.sg> Date: 2009/7/29 Subject: Re: Transcript of the oral communication between the Tosa and the CG119 - April 17th, 2009 to April 18th, 2009 To: preetha aroza <preetha.aroza@gmail.com> Cc: glen aroza <glen.aroza@gmail.com>, "michael.demenezes" <michael.demenezes@nyksm.com> Dear Mrs Aroza, With reference to your message below, please be advised as follows: The SVDR recording has been submitted to the Taiwanese authorities and to experts appointed by our underwriters to analyze the same. We are not in a position to ask them to distribute it to others for the following reasons: (a) The data is now a part of the legal proceedings currently in progress - both civil and criminal. (b) The recording contains confidential data that concerns various members of the vessel's staff and also contains information sensitive to the civil case. We request your kind understanding of the above. 26
  27. 27. Best regards Hemant Pathania -------------------------------------------------------------------------------------------------------- preetha aroza <preetha.aroza@gmail.com> 28/07/2009 08:11 PM To Hemant Pathania <hs.pathania@nyksm.com.sg> cc Capt A K Bansal <cmd@iwl.in>, vinoddar <Vinoddar@gmail.com>, menezesjp@yahoo.com, "capmnaik@vsnl.com" <raghuramrao2001@yahoo.co.in>, alvakp@satyam.net.in, glen aroza <glen.aroza@gmail.com>, joslin aroza <joslinaroza@yahoo.com>, Sarvadaman Oberoi <manioberoi@gmail.com>, "michael.demenezes" <michael.demenezes@nyksm.com> Subject Transcript of the oral communication between the Tosa and the CG119 - April 17th, 2009 to April 18th, 2009 Dear Mr. Pathania, As we know that m.t.Tosa was taken under threat by the Coast Guards, Taiwan on 18th April. I am given to understand that all oral and electronic communications are required to be recorded by ship's managers for 24 to 48 hours. In case of an incident, these records are required to be permanently secured. Hence all records of oral and electronic communications from/with Tosa (including with CG119) are on the record. I request you to kindly make available one copy to me of the record including a certified transcript of the oral communications from/ with Tosa/ship's managers/ CG 119. Thanks and regards, Preetha Aroza +919663332290 ------28/07/2009 email to Preetha Aroza from Sarvadaman Oberoi------- This case is not a straightforward case for international tribunal, else Panama may have done the needful by now. I have tried to explain the sticking points and how they may be resolved in earlier communications. The matter was explained to Ambassador of Panama in a meeting on 22 July 2009 - a copy of letter handed to him is also enclosed. The basis of the special jurisdiction under Article 2(6) of Charter of the UN and Article 301 UNCLOS 1982 is explained in extracts from Yoram Dinstein's book attached. Capt. V.K. Gupta, Master of CMMI has brought out the facts of the case in an article of 13 July 2009 attached. 27
  28. 28. The big mystery is the delay of Panama in stating its action or opinion. Will they wait it out till trial commences on 20 August 2009? The proof of threat to use force would lie in the recording of the radio communications between Tosa, CG 119 and NYKSM, Singapore. And in one Taiwan news report - copy enclosed --------------------------END OF EMAIL--------------------------------- ---------- Forwarded message ---------- From: Sarvadaman Oberoi <manioberoi@gmail.com> Date: Mon, Jul 20, 2009 at 5:37 AM Subject: IMMEDIATE TRANSFER OF JURISDICTION FROM TAIWAN TO PANAMA - CAPT. GLEN AROZA & 2 OTHERS M.T. TOSA, NYK To: Rosalie Balkin <RBALKIN@imo.org> Dear Dr Balkin, I have just seen this news item: IMO to sanction Nigeria over littered waters "Thursday, July 16, 2009, 10:32:00 AM | info Coordination marée noire International Maritime Organisation may sanction Nigeria over waste dumping by ships in the country's territorial waters. It was learnt that the ship owners have continue to dump residue unchecked by the regulatory agency, Nigeria Maritime Administration and Safety Agency (NIMASA)." The true nature of the TOSA case has not registered with the IMO as full facts are only now emerging. This is a case of flagrant dereliction of duty by a Flag State not filing timely proceedings for provisional measures under Paragraph 1 of Article 290 UNCLOS 1982 on receipt of a report from NYK Ship Management, Singapore on 20 April 2009, that ROC, Taiwan CG 119 threatened to use force and forced its vessel to abandon voyage on the high seas and proceed under escort to Hualien Port on 17/18 April 2009. (Also Article 292 proceedings for prompt release of crews.) As you well know the threat to use force attracts the provisions of Article 301 UNCLOS and when read with Article 2(6) of the Charter of the United Nations, immediately invokes the jurisdiction of the United Nations against the offending State including a non Member State such as ROC (Taiwan). 28
  29. 29. At the time of the alleged navigation incident the TOSA was one hour away from the location of alleged navigation incident. (NOTE below discusses details of time & place & actions etc) The ship's managers every attempt to transfer jurisdiction under UNCLOS 1982 to Flag State has been thwarted by the Flag State itself, so much so that all documentary proofs and affidavits were also filed by the ship's managers through their lawyers with the Flag State on 26 June 2009 without receiving any response AT ALL till 18 July 2009 from Flag State, in this day and age of instant emails. The IMO Regime cannot play second fiddle to the National Laws of ROC (Taiwan) which have brazenly usurped the IMO guarantee of freedom of navigation of the high seas in such a brutish manner as to threaten to use force to direct an innocent vessel to abandon voyage in protected high seas and proceed to detention at its port. The ROC Taiwan laws protect their own seafarers from criminal action in cases of injury or death resulting from collision / navigation incidents through an exclusionary/ saving Article in their Seafarer Law 1999 (copy attached). (as you will read in the detailed Note below.) It is shameful that Article 80 of Seafarer Law provides the penalties for death or injury from navigation errors and Article 1 excludes cases like navigation errors for which penalty is provided in the Act, yet the 2nd Officer is being charged with "Fleeing after Traffic Accident - Hit and Run" under the Criminal Code. Some documents are also attached for ready reference as all of them are not easy to find. As the ITLOS Judgement of 1 July 2009 in Saiga amply clarifies it is for the Flag State alone to approach the Tribunal because States of citizenship of the crew do not have locus to approach it. Hence it is all the more reprehensible that the Flag State has been derelict in protecting the crew serving under its Flag. If innocent seamen are arrested for months and harassed in this manner and finally left to their own devices by the Flag State, the IMO needs must sanction such shameful abdication of responsibility by the concerned Flag States. In the Taiwanese criminal system the judge has the discretion to completely discard the evidence of expert witness and further has the discretion to accept or reject the case of the prosecutor - a case which by law must be prepared secretly "Article 245 - Investigation not to be public" This will be a bigger disaster for the IMO than the Hebei Spirit, unless prompt action is taken even now - better late than never. I shall not embarass you or the IMO by making this missive public in true Taiwanese spirit. I assure you that no one else has access to this email. Kindly take action as deemed fit and proper in the facts and circumstances of this case. Regards. Sarvadaman Oberoi 29
  30. 30. ---------- Forwarded message ---------- From: Kaljit Gill <KGILL@imo.org> Date: Wed, Jul 15, 2009 at 5:35 PM Subject: CAPT. GLEN PATRICK AROZA (EX-MASTER, M.T. TOSA, NYK SHIP MANAGEMENT PVT. LTD) To: preetha.aroza@gmail.com Cc: Agustin Blanco-Bazan <ABLANCOB@imo.org>, Dany Broderick-Bunn <DBRODERI@imo.org>, Rosalie Balkin <RBALKIN@imo.org> Dear Mrs. Aroza, Please see below response from Dr. R.P. Balkin, Director, Legal Affairs and External Relations Division of IMO, to your e-mail of 2 July 2009 to the Secretary-General on the above-mentioned subject. 15 July 2009 Dear Mrs. Aroza, I write on behalf of the Secretary-General in connection with your email letter to him of 2nd July 2009. I very much sympathize with your present situation and that of your husband and the other members of the crew who have been detained for this lengthy period of time. Unfortunately, however, IMO has no mandate and is, accordingly, not able to intervene in an individual case like this one, where a criminal investigation is in progress in accordance with the domestic law. In this particular situation, there is an additional complexity, caused by the fact that the detaining authorities are from a territory where, due to strict rules applicable within the UN system, of which IMO is an integral part, IMO is prevented from having any direct contact with these authorities. Accordingly, I would suggest that the best way for you to proceed would be to contact the authorities of the flag State and request them to periodically assess the situation and to make representations, as appropriate, to the port authorities in order to ensure that the detention of your husband and other crew members does not last longer than strictly required for the progress of the investigation of the incident. I note that you have also sent this email to the authorities of the Government of India as well as to the General Secretary of the International Transport Workers’ Federation (ITF), who may be better placed than us to assist in this regard. I wish you success in your further endeavours. Yours sincerely, 30
  31. 31. Dr. R.P. Balkin Director, Legal Affairs and External Relations Division IMO XI. TOSA CASE OF 17 APRIL 2009 CONSIDERED UNDER VARIOUS LAWS OF REPUBLIC OF CHINA AND IMPACT OF INTERNATIONAL LAW 1. Request dt 26 June 2009 by Ship’s Managers to Flag State, Panama, for Transfer of Jurisdiction of TOSA Case from Hualien, ROC to Panama A. ROC National Laws and International Law of the Sea and IMO Conventions (a) Although not a member state of IMO, ROC (Taiwan) has willingly committed to comply with IMO resolutions. [Page 208 of Journal of Marine Science and Technology, Vol. 16, No. 3, pp. 207-213 (2008), THE IMPLEMENTATION OF PORT STATE CONTROL IN TAIWAN, Rong-Her Chiu, Department of Shipping and Transportation Management, National Taiwan Ocean University, Taiwan, Chien-Chung Yuan, Department of Shipping Administration, Taichung Harbor Bureau, No 2 Chung-chi Rd., Sec. 3, Wu-chi, Taichung County, Taiwan and Kee-Kuo Chen, Department of Shipping and Transportation Management, National Taiwan Ocean University, Taiwan.] (b) CHINA CORPORATION REGISTER OF SHIPPING, the approved Register of MOTC, Taiwan (R.O.C.) has notified every single IMO document for compliance by ships under its register. This includes ISM Code 1999 notified in Technical Circular No. 09 dt 10 May 2003 and COLREGS 2002 A.910(22) notified in Technical Circular No 10 dt 10 July 2003. (c) Article 64 of SHIPPING LAW 1981, ROC provides "In case provisions involving international matters are not provided in the present Law, MOTC may, by reference, undertake to adopt, promulgate and enact the relevant international conventions or agreements and the regulations, directives, standards, recommendations or programs prescribed in the annexes thereto as the provisions." 31
  32. 32. (d) (i) Article 70 of THE SEAFARER LAW 1999 issued under authority of MOTC provides "The seafarer, who is watchkeeping, shall observe the rules of the collision regulation, and signal siren or hang up signals as provided.” (ii) Further Article 70-1 provides "To ensure the safety of ship and navigation, the employer shall man the ship with sufficient, qualified seafarers in accordance with relevant provisions, before and at the beginning of the voyage." (iii) Now the penalties - Article 80 provides as follows "A seafarer committing one of the following things shall be subject to degrading, withdrawal or cancellation of seafarer service book: 1. Violation of Seafarer Service Rules or Article 70, thus causing severe loss or damage to the ship or the employer, casualties to the ship, injuries or deaths to personnel, or affecting navigation safety." (iv) Article 1 of THE SEAFARER LAW 1999 issued under authority of MOTC provides "This Law is enacted for purposes of protecting rights and interests, maintaining physical and mental health, reinforce cultivation and training of seafarers, harmonizing the relations of employers and employees, and enhancing development of the shipping industry. The provisions of other laws are applicable in the absence of the provisions in this Law." (v)Further Article 3 provides "This Law shall not apply to seafarers on the following ships except for those involving navigation safety and dealing of marine casualties: 1. Small ships provided by the Ship Law. 2. Military vessels and boats. 3. Fishing ships." (vi) Interestingly Article 5 provides "All seafarers shall be not less than 16 years of age. All masters shall be the nationals of the Republic of China (the ROC)." [COMMENT: Hence only Master of TOSA, an Indian National, and all of the crew of the fishing vessel are denied the protection provided by this law, however in accord with well settled international law, those other laws become applicable only to the crew of the fishing vessel, and most certainly not to the Master of TOSA. All other crew including watchkeepers on TOSA are protected under Seafarer Law 1999 issued under the authority of MOTC Republic of China, as also under well settled 32
  33. 33. international law and may not be tried under any other law, such as Criminal Code, Republic of China .] (e) Article 12 of Regulations on the Management of the Crew of Fishing Vessels, made pursuant to Article 12 of the Fisheries Act, ROC, provides "The crew officers of the navigation unit on a fishing vessel, of which length overall is 12 meters or above but not exceeding 24 meters, and which has been applied to navigate to and operate in an unlimited water, shall hold a Fishing Vessel Officer Certificate for either the first grade captain or the first grade first mate. Any crew officer other than the first grade captain or the first grade first mate, who wants to serve those positions mentioned in the preceding paragraph in the navigation unit on a fishing vessel, shall participate in relevant training on expertise and be qualified for this end." [COMMENT: Syllabus of Taiwan Fishing Vessel Officer Certificate includes training on all relevant IMO regulations including ISM 1999 and COLREGS 2002.] B. In relation to collision claims, Republic of China Courts claim jurisdiction when, (a) the parties agree or have agreed to Republic of China jurisdiction. If there is no agreement and a defendant fails to object to the Court’s jurisdiction but directly proceeds with arguments about the claim’s merits, then they are regarded as having accepted the Court’s jurisdiction and forfeit their right to dispute it. [COMMENT: Panama Maritime Authority wrote officially to the Hua Lien Coast Guard on the 20 April 2009 stating that they have the responsibility for investigation. A Panama inspector was sent from Panama to Hua Lien on the 22 April 2009 to conduct an investigation, and as per information available from the ship's managers he would shortly send his report to the IMO. A petition was filed by lawyers appointed by the ship's managers before the Panamanian Ministry of Foreign Affairs on 26 June 2009 for transfer of jurisdiction to Flag State in accord with International Law. There has been no response till 18 July 2009. In view of application expected to be made by Flag State, Panama as per formal request of the ship’s managers dated 26 June 2009, to MOFA, ROC to transfer the entire case to Panama (Flag 33
  34. 34. State), there would have to be a proper consideration of jurisdiction under Code of Criminal Procedure of Republic of China. See extracts below] (b) a collision occurs within Republic of China territorial sea [COMMENT: UNCLOS 1982 Article 3, stipulates 12 nautical miles as width of territorial sea, whereas alleged collision occurred about 75 nautical miles East of Coast of Republic of China {approximately 25 50 N 123 08 E}. The extended jurisdiction claims of ROC vide Article 13(1) of Law on the Territorial Sea and the Contiguous Zone of the Republic of China 1998 and Article 16 of Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China 1998 have been analyzed in sub paragraph C below. ] or (c) the offending vessel is arrested in Republic of China [COMMENT: TOSA was detained at a location about 40 nautical miles East of Coast of Republic of China, {approximately 24 09 N 122 26 E}, on 17 April 2009, by ROC Coast Guard, a few hours after the alleged incident in an area, 21 nautical miles West of a Japanese occupied island, {approximately 25 50 N 123 08 E}, both locations being areas specified to be on high seas route in accord with Articles 34 to 36, Article 53(5), Article 58 and Articles 86 to 98 of UNCLOS 1982. In any case there was no collision and the only fishing vessel that had crossed the TOSA at close quarters did so between about 2330 and 0001 hours (GMT+8) 17 April 2009, and was observed passing safely for about 30 minutes, whereas the alleged collision (now said to be a capsize) was reported around 0038 hours 17 April 2009 (GMT+8) in location approximately 25 50 N 123 08 E. At the relevant time the TOSA was about one hour away from this location.] (d) the vessel comes to a Republic of China port of its own volition [COMMENT: TOSA, alleged to have been involved in an incident, was detained on high seas on 17 April 2009 by ROC Coast Guard, and in his Report the Master has alleged that he was induced to sail into a ROC port under the threat that Coast Guard ships and aircraft would use force if Master does not proceed to Hualien Port. This is allegedly a clear breach of Article 301 of UNCLOS 1982 read with Article 2(6) of the Charter of the United Nations, it invites the jurisdiction of ITLOS on two 34
  35. 35. separate counts, one, prompt release of crews under Article 292, two, provisional measures under Article 290(1) in re threat to use force on the high seas. [Reference: Roger KC Wang of Sotonors Attorneys-at-law, Taipei, "New Civil Procedural Law for Maritime Claims in Taiwan", 12 January 2004] C. Separate Opinion of Judge Laing dt 1.7.1999, The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Provisional Measures, ITLOS: "provisional measures under UNCLOS are prescribed, not indicated, and therefore are binding, arguably unlike measures under article 41 of the I.C.J. Statute. { Art. 290, para. 1, provides for the prescription, not indication, of provisional measures. To some, it may be encouraging to perceive that sovereigns would so agree that they could be bound by a judicial order. Nevertheless, the potential addressees of this provision and of provisional measures also include non-State parties to disputes (commercial entities and certain intergovernmental agencies). The addition of this range of addressees underscores the point in the text.} Any party to a dispute before the Tribunal can readily invoke article 290 and set in train expedited proceedings seeking provisional measures which temporarily shunt aside the proceedings on the merits and associated incidental proceedings, including preliminary objections. The apparently far-reaching nature of the power is counterbalanced by the temporary ambit of its exercise and the gravity which imbues global judicial institutions, preoccupied with their weighty functions.”]. D. Article 13 of Law on the Territorial Sea and the Contiguous Zone of the Republic of China 1998 and Article 16 of Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China 1998 (a) Paragraph 1 of Article 13 of Law on the Territorial Sea and the Contiguous Zone of the Republic of China 1998 provides, "In the part of the Taiwan Straits not part of the territorial sea of the Republic of China used for international navigation, the Government of the Republic of China may enact laws and regulations relating to transit passage of foreign vessels and aircraft, in respect of …..1. The maintenance of navigation safety and the regulation of maritime traffic;" 35
  36. 36. (b) Article 16 of Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China 1998 provides "Where the authorities of .... Republic of China consider that a person or an object, ... is engaged in any activity violating laws and regulations of the Republic of China", “in its exclusive economic zone or on its continental shelf", "such authorities may engage in hot pursuit, boarding, and inspection" and "arrest the suspected person, or detain the vessels, aircraft, equipment, or other articles belonging to the suspected person, and institute legal proceedings." (c) Article 36 UNCLOS 1982 provides that Part III of the Convention on transit passage, “does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigation and hydrographical characteristics; in such routes, the other relevant Parts of this Convention, including the provisions regarding the freedoms of navigation and overflight, apply.” The Taiwan Straits as also the route through the exclusive economic zone East of the Taiwan Coast and West of the (disputed) Japanese islands lying at the tips of the Okinawa Trough meet this definition. (d) Hence Paragraph 1 of Article 13 of Law on the Territorial Sea and the Contiguous Zone of the Republic of China 1998 and Article 16 of Law on the Exclusive Economic Zone and the Continental Shelf of the Republic of China 1998 may amount to undue interference with freedom of navigation on the high seas and may fall to a certain extent within the scope and precedent of the ITLOS, Judgment dt 1.7.1999, The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Merits. E. Extracts ITLOS, Judgment dt 1.7.1999, the M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Merits. “92. Saint Vincent and the Grenadines further contends that the rule that local remedies must be exhausted applies only where there is a jurisdictional connection between the State against which a claim is brought and the person in respect of whom the claim is advanced. It argues that this connection was absent in the present case because the arrest of the ship took place outside the 36
  37. 37. territorial jurisdiction of Guinea and the ship was brought within the jurisdiction of Guinea by force. 97. The Tribunal considers that in this case the rights which Saint Vincent and the Grenadines claims have been violated by Guinea are all rights that belong to Saint Vincent and the Grenadines under the Convention (articles 33, 56, 58, 111 and 292) or under international law. The rights claimed by Saint Vincent and the Grenadines are listed in its submissions and may be enumerated as follows: (a) the right of freedom of navigation and other internationally lawful uses of the seas; …… 120. In the view of the Tribunal, there is nothing to prevent it from considering the question whether or not, in applying its laws to the Saiga in the present case, Guinea was acting in conformity with its obligations towards Saint Vincent and the Grenadines under the Convention and general international law. 121. A denial of the competence of the Tribunal to examine the applicability and scope of national law is even less acceptable in the framework of certain provisions of the Convention. One such provision, which is also relied upon by Guinea, is article 58, paragraph 3, which reads as follows: In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part. Under this provision, the rights and obligations of coastal and other States under the Convention arise not just from the provisions of the Convention but also from national laws and regulations “adopted by the coastal State in accordance with the provisions of this Convention”. Thus, the Tribunal is competent to determine the compatibility of such laws and regulations with the Convention. [COMMENT: In the Saiga No 2 Case, both parties were members of the UN. 37
  38. 38. However Article 301 UNCLOS 1982 read with Article 2(6) of the Charter of the United Nations clothes ITLOS with jurisdiction even over cases involving non member States, in cases where a non member State uses or threatens to use force.] 132. It remains for the Tribunal to consider whether the otherwise wrongful application by Guinea of its customs laws to the exclusive economic zone can be justified under general international law by Guinea’s appeal to “state of necessity”……………. 136. The Tribunal, therefore, finds that, by applying its customs laws to a customs radius which includes parts of the exclusive economic zone, Guinea acted in a manner contrary to the Convention. Accordingly, the arrest and detention of the Saiga, the prosecution and conviction of its Master, the confiscation of the cargo and the seizure of the ship were contrary to the Convention.” [COMMENT: The Judgment resulted in financial reparations of over 2 million USD by the State of Guinea to the owners and crew members of the M/V Saiga.] 2. Extracts from The Civil Code, Republic of China Article 184 “A person who, intentionally or negligently, has wrongfully damaged the rights of another is bound to compensate him for any injury arising therefrom” 3. Extracts from the Criminal Code, Republic of China [Criminal Code, Republic of China is not available in English Language, especially Articles 185-4, 293 & 294.] Article 12 “punishment shall not be imposed to acts that are not intentional or unpremeditated” Article 14 “negligence is considered as although those who commit an unpremeditated crime are not intentional, they should be able to avoid it if caution was taken depending on the actual circumstances; the outcome is foreseeable but it is believed not existed”. Criminal Code, Article 185-4 (Crime of a driver who causes an accident and flees) 38
  39. 39. A person who causes injury or death to another person in an accident while driving a motor- driven vehicle and flees the scene of the accident shall be sentenced to an imprisonment term between 6 months and 5 years. Article 276 Paragraph 1 “those who commit murders due to professional negligence shall be imposed fixed-term imprisonment for up to five years” Article 276, Paragraph 2 (Crime of Negligent manslaughter) A working person who commits the aforesaid crime while working shall be punishable by a maximum imprisonment term of 5 years, detention, or a maximum fine of three thousand dollars added thereto. Article 294, Paragraphs 1 and 2 (Crime of desertion for being default of obligation) A person who deserts or declines to give assistance, support, or protection required for the living of another person incapable of self-rescue or shall be assisted, supported, or protected under the law or under a contract shall be sentenced to an imprisonment term between 6 months and 5 years. A person who commits the offence of desertion and cause a person’s death shall be sentenced to a minimum imprisonment term of 7 years or a life imprisonment term. A person who causes aggravated injury to a person by committing the crime of desertion to the person shall be sentenced to an imprisonment term of between 3 and 10 years. [Master of TOSA has been charged with involuntary manslaughter under Article 276 of Criminal Code on 17 July 2009. 2nd Officer has been charged under Articles 276, 293, 294 & 185-4. AB Caballero Mallorca Eduardo Jr has been charged under Article 185-4, Hit and Run, Fleeing after traffic accident. Articles 293 & 294, Offence of Abandonment/Desertion.] 39

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