Homicide at Sea: Which Vessel is the Pirate in the Italy-India Conflict?

March 12, 2013 — drsubrotoroy

Please see the current issue of the Denver Journal of International Law and Policy

http://djilp.org/3711/homicide-at-sea-which-vessel-is-the-pirate-in-the-italy-india-conflict/

Some two dozen rounds of a powerful automatic gun are suddenly fired from one vessel on the high seas onto another. The latter is an unarmed Indian fishing boat with nets cast. Two fishermen are killed on deck, some eleven are asleep below deck and are injured. The vessel has some 16 bullets on it. The shooter, an Italian oil tanker, departs the scene and apparently does not report to the closest maritime authority that it has fired at presumed pirates. But of course, it *itself* may be the pirate by the Law of the Sea convention because the specific gunmen might just have been, while on their long voyage, bored or drunk when they saw some dark thin figures in the distance in the water and thought they would get some target-practice for fun.  Viz., “Article 101 Piracy consists of …any illegal acts of violence … committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed…  on the high seas, against another ship … or against persons or property on board such ship…”.  These homicides that took place on the high seas may have been accidental (e.g. the gun jammed) or unintentional or deliberate murder, we do not know because the facts have not been allowed to be tried in court proceedings.

The fishing vessel returned weeping to port, the Indian Navy and Coast Guard to their credit engaged in hot pursuit, and managed to arrest the Italian vessel on the high seas, and the Italian vessel to its credit did not make a run for it but came into port.  Then the local provincial police arrested the alleged gunmen and charged them with murder etc under domestic law; and also refused to let the ship free until it had paid a bond etc.

Who has had jurisdiction? Italy or India? From the beginning I, on the basis of my little learning in 1973-74 under the late great Professor DHN Johnson at the London School of Economics, one of the authors of the Law of the Sea Convention being written at the time, said the answer was both — it is a case of *concurrent * jurisdiction, where Italy obviously has jurisdiction as it was an Italian vessel that caused the homicide at sea, while India too has jurisdiction as an Indian vessel was assaulted and India made the ship-arrest on the high seas.   The case needed clinical adherence to law and forensics by both countries in cooperative pursuit of the truth such that that elusive thing *the interests of justice* could prevail.

Italy rightly said the local domestic law of  *the land* did not apply, and the Supreme Court of India agreed with them. But Italy wrongly said India did not have jurisdiction at all, and the Supreme Court of India was clear that India had to create a *Special Court* for the purpose of a trial under international law.  *Had India not made the ship-arrest and prosecuted the case, the possible criminal act that may be involved in this homicide at sea would have disappeared altogether.*

Italy then asked for the two alleged gunmen to go home on parole for Christmas, the Supreme Court was assured by the Italian Government they would return to face trial, the Supreme Court granted them parole to do so, and they did return; some weeks later Italy asked for the two to go on parole again, this time to vote in their elections; again, with the same assurances, the Supreme Court of India allowed them to do so.

Now Italy has breached its undertaking to the Supreme Court and refused to return them, saying India is in breach of international law, and Italy has sent the alleged gunmen back to normal work without even any purported trial of facts in the case under Italian law or Italian military law.

The Italian Ambassador would normally be in clear Contempt of Court — except he has diplomatic immunity and cannot be arrested or prosecuted.  India, it seems to me, has no recourse but to take the drastic measure of declaring the Italian Ambassador and perhaps others of his staff *persona non grata*, and to expect an equivalent retaliatory measure from Italy, and for a chill in trade and business relations and tourism etc to set in for a while before things can get better.  Diplomatic expulsions need to demonstrate swiftness of purpose because they are a metaphor for warfare; waiting until March 22 because it is a court deadline or to give the other side a chance to respond is both tedious and silly. Besides, an expulsion is retaliated with by an expulsion usually; where it is not, it is the diplomatic equivalent of a military surrender.

It is an unfortunate rift in relations between friendly countries due to a random event on the high seas; it required the right application of international law to the facts, which neither Government separately or together managed to do; that was something I have feared and warned against from when it started.  In June, the local Italian Government consul asked to meet me and came to be fully apprised by me of what I thought the legal facts were and what could be done in the interests of justice. But they chose not to accept the advice.

Dr Subroto  Roy blogs at www.independentindian.com

See also
also http://independentindian.com/2013/03/19/solving-the-italy-india-conflict-lawfully-without-mutual-diplomatic-expulsions/

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Posted in Common Law and Equity, Comparative Government, DHN Johnson, Diplomacy, Diplomatic protocols, Enrica Lexie case, Government of India, India in international law, India's Diplomacy, India's Foreign Policy, India's Foreign Service, India's Foreign Trade, India's Judiciary, India's Jurisprudence, India's Supreme Court, International Law, International politics, International trade, Italian marines case in India, Italy, Italy-India conflict on the high seas, Law, Law of the Sea, Piracy, Piracy at sea. 2 Comments »

Is the Obama Doctrine as simple as this?

November 17, 2009 — drsubrotoroy

From Facebook:

I wonder if the Obama Doctrine for US Foreign Policy is going to be as simple as this:

the United States has no permanent intrinsic (ideological) enemies or competitors — not in the Muslim world, not Communist Party China, not Russia, not in Latin America;

the United States has no specific best buddies among the nations of the world — not Britain, not Israel (well, Canada, yes, the exception to the rule);

the United States will be a cooperative partner in peace and progress with any country that seeks this;

the United States will define enemies by their adversarial behaviour, so, e.g. Somali pirates risk getting shot, and violent jihadists like Hasan, KSM get what’s due.

Postscript: I am not saying this is something I would have or have not approved if I had been an American voter, merely that this appears to be the doctrine that seems to be revealed from President Obama’s actions thus far.

Posted in America's military-industrial complex, American democracy, Barack Obama, Diplomacy, International diplomacy, International economics, International immigration, International Law, International politics, International trade, Obama Doctrine, US China policy, US Foreign Policy, Diplomacy, Espionage, US Pakistan policy, US-Iran relations, USA Rule of Law, USA, United States, War. Leave a Comment »

On gold and central banks

November 3, 2009 — drsubrotoroy

From Facebook:

Subroto Roy thinks the simplest argument against gold (or any precious metal) as a unique monetary standard has been that there is not enough of it to suffice for the vast volume of world trade and payments…. (and that has been the case for at least a half century)….

Subroto Roy: Someone says in response to my suggestion there has not been enough gold, “just put the price of gold high enough”.  My response: “Who will? Central Banks as per the old gold exchange standard? There are well-known problems with all fixed exchange rate systems.”

Subroto Roy: The working of the gold, or at least the gold exchange, standard does not depend on actual holdings of course but one reason given for its abandonment had been that the vast expansion of the volume of trade and payments gave gold-producing countries a windfall bonanza and a potentially destabilising/disruptive advantage. Use of a fiduciary standard in world trade was as expected a development as its use in domestic trade and for the same kind of reasons. Of course gold retained some kind of “anchoring” role before Aug 15 1971 during the Bretton Woods era.

Subroto Roy: Yes, I agree “The development of new payment instruments that economized on gold kept pace with increased trade” — there is an economics of institutional change to be written there. Re., the “windfall bonanza” argument, I think it is merely that gold-producing countries have a kind of seignorage advantage under a pure gold standard — as the US may have had under Bretton Woods.

Subroto Roy is reminded of his brief time on Wall Street in the 1990s when he learnt it is not actually gold producers who earn the seignorage advantage but a cartel of a half dozen or so central banks (led by the Fed & Bank of England) who work together and between them possess vast inventories that can effectively control the supply-side completely.

Posted in Central Banks, Economics of exchange controls, Economics of Exchange Rates, Gold market, Gold stocks, International monetary economics, International trade, US Federal Reserve System, US in World Trade, US Monetary and Fiscal Policy, Wall Street, World Trade and Payments. Leave a Comment »

Is this a reason China has far outpaced India in exports?

August 12, 2009 — drsubrotoroy

From Facebook:

Subroto Roy  suggests one reason China has far outpaced India in exports is because it was willing to focus on manufacturing common man mass consumption items  like toys, umbrellas, winter clothing etc for a start, where India’s conceited nomenclatura businessmen/ bureaucrats either maintained traditional imperial exports like textiles, raw materials & tea or chose a high-end middle-class item like software….

Posted in China's exports, China's Economy, India's Big Business, India's Government economists, India's Economic History, India's Exports, India's Foreign Trade, India's nomenclatura, India's political lobbyists, India's pork-barrel politics, International trade, World economy, World Trade and Payments. Leave a Comment »

Waffle not institutional reform is what (I predict) the “G-20 summit” will produce

April 1, 2009 — drsubrotoroy

“Summits”  of global political leaders require competent “sherpas”  to do the preparations.  From what I gather about the London “G-20 summit” this has not happened adequately enough, so I expect only a lot of waffle to emerge.  (If they suddenly start talking about Global Warming or AIDS in Africa or whatever, we will know the actual talks have failed badly.)

Reforming the IMF?   Hmmm, let’s see, what happened to all that talk four years ago about reforming the Big Daddy of them all, the UN?   Oh yes,  I forget, India is now a permanent veto-wielding Security Council Member, NOT!

It has been said that academic syllabus reform at a university is like ‘”moving a graveyard”.  Reforming the world monetary system and its major institutions would be like moving thousands of graveyards.   And there is no one with the brains of a White or a Keynes to help things along.  But we should not be surprised if there were pronouncements  of this or that high-powered commission of pompous worthies  who will make recommendations for reform some time in the future.    In general, little more than waffle will emerge now — I cannot even see the UK Government following informal British  advice to stand down from its founding role at the IMF.

There is no clear path to solving the great (alleged) economic and financial crisis because no one wants to admit its roots were the overvaluation (over decades) of American real-estate, and hence American assets in general.

India’s PM shall be seen at least up and about after several months out of action, indeed he will be up and about for the  first time in months doing what he (like India’s nomenclatura in general) likes doing best, which is to travel outside India.

Subroto Roy, Kolkata

Posted in America's housing market, America's mortgage crisis, American financial crises, Barack Obama, Britain, British foreign policy, China's Economy, Common markets, Economics of Exchange Rates, Economics of housing markets, Economics of real estate valuation, Financial markets, Great Tremor of 2008, India's nomenclatura, International diplomacy, International economics, International monetary economics, International politics, International trade, Trade-liberalization, Trade-protection, UN/League of Nations, US economy, US in World Trade, US Monetary and Fiscal Policy, Wall Street financial crises, World economy, World Trade and Payments, Zombie companies. 1 Comment »

Risk-aversion explains resistance to freer trade (and explains protectionism during a recession)

March 19, 2009 — drsubrotoroy

Risk-aversion explains resistance to freer trade (and explains  protectionism during a recession)
by
Subroto Roy
Drafted March 1989, published March 2009

Author’s Note March 19 2009:  This  small note has remained unpublished in my files for more than 20 years.  Some stylistic improvements have been made to the original.

Textbook economics suggests world trade improves material welfare: consumers are better off when imports may compete freely in the home-market.  Yet from Adam Smith’s critique of mercantilism to modern theories of rent-seeking, domestic producers in import-competing industries have been described as trying to restrict international trade by tariffs or other means.  How is it producers so often succeed in persuading governments of the social costs of imports?  Why are there not (or not as many, or not as powerful) consumer lobbies?  Certainly there are high costs of organizing consumer lobbies relative to producer lobbies, but leaving that aside, is it possible  consumers are ignorant and irrational?  J. Michael Finger (1982, 1983/84) argued that in this respect consumers are in fact ignorant of their own best interests.

Roy (1983/84) suggested that a simple Keynesian observation offers a different explanation.  A domestic household may be definitely better off by trade-liberalization on the expenditure side of its budget but the increased competitiveness of the economy accompanying liberalization may so decrease the expected value of its income that a risk-averse household would prefer the trade-protected status quo and have no incentive to lobby for trade-liberalization.  Conversely, in a recession when the expected value of a household’s income declines, households have an incentive to lobby for trade-protection despite this worsening the expenditure side of their budgets.

The simplest of examples suffices to show all this.    Let x1 be a non-traded domestic good, and x2 an imported good, and let a domestic household have preferences

U (x1, x2) = x1α . x2β

α + β < 1; 0 < α, β < 1     (1)

Let x1 be numeraire, p’ and p be the world and domestic prices of x2 respectively, and t be the tariff-rate on x2 such that p = (1 + t). p’.  Let the household’s expected income be ya in the trade-protected state and yb in the trade-liberalized state, so its budget constraint is either

ya = x1 + (1 + t).p’. x2 in the trade-protected stated  (2a)

or

yb = x1 + p’. x2 in the trade-liberalized state      (2b).

Maximizing (1) subject to (2a) gives a “final utility” in the trade-protected state, Ua*.  Maximizing (1) subject to (2b) gives a “final utility” in the trade-liberalized state, Ub*.

Hence   Ua* >     Ub* as

[ya/yb]  (α + β)/β >     1 + t         where  (α + β)/β  > 1.

If income is certain in the trade-protected state but uncertain in the trade-liberalized state, a household’s risk-aversion will require loss in the expected utility of income in the trade-liberalized state to be offset by a gain in final utility that it receives as a consumer due to tariff-reduction.

E.g.,  let α = β = ½ and let the household have a certain income in the trade-protected state of $20,000; let it place a subjective probability of 1/4 on being unemployed with zero income in the trade-liberal­ized state, and 3/4 on maintaining the same income of $20,000.   Then Ua* > Ub* as [4/3]2 > 1 + t.

I.e., for any tariff-rate less than about 78% with these  particular data, the household may rationally think itself better off in the trade-protected state than in the trade-liberalized state, and hence have no incen­tive to lobby for the latter.

Cooper (1987) remarked: “There should of course be a strong appeal to consumers of imported goods for removing restrictions.  For a variety of reasons, political mobilization of consumers has been difficult in most countries.  Many of these consumers also are employed in producing tradable goods, and they worry more about their jobs than about the purchasing power of a given wage. But most goods that move in international trade are not consumer goods.  They are capital goods and intermediate products, and it should be easier to appeal to buyers of these intermediate products for import liberalization, because such buyers would enjoy a reduction in their costs.”  The sentence italicized above may be consonant with the simple point made here.

References
Richard N. Cooper “Why liberalization meets resistance” in J. Michael Finger (ed.), The Uruguay Round, A Handbook on the Multilateral Trade Negotiations, World Bank, November 1987.
J. Michael Finger, “Incorporating the gains from trade into policy”, The World Economy, 5, December 1982, 367-78.
“The political economy of trade policy”, Cato Journal, 3, Winter 1983/84.
Subroto Roy, “The political economy of trade policy: comment”, Cato Journal, 3, Winter 1983/84.

Posted in Economics of Unemployment, Great Depression, Great Tremor of 2008, International economics, International trade, John Maynard Keynes, Keynesian economics, Political cynicism, Political Economy, Risk aversion, Tariffs, Trade-liberalization, Trade-protection, US in World Trade, Welfare Economics, World economy, World Trade and Payments. Leave a Comment »
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