Lack of clarity on asylum laws helps India, despite French ex-spy’s explosive claims

Notwithstanding Herve Jaubert’s damning statements, India’s Exclusive Economic Zone extending to 200 nautical miles beyond the coastline and it not being a signatory of the Refugee Convention of 1951, save it from an international diplomatic nightmare, for now. 

In a striking development, further to our earlier story on the attack on the US based vessel Nostromo, carrying the UAE royalty Princess Sheikh Latifa, the daughter of Prime Minister of UAE Sheikh Mohammed Bin Rashid Saeed Al Maktoum, Tiina Johanna Jauhiainen from Finland, and Oliver Hervé Jaubert – a former officer with the General Directorate for External Security (France) – who “went missing” off the coast of Goa in Indian waters, there seems to be an alleged discrepancy in the exact location of Nostromo when it was accosted by members of the Indian Coast Guard.

Earlier piece in the Invisible Lawyer titled “India’s Moral Standing Diminished After Helping UAE Seize Princess Latifa” 

The Invisible Lawyer has received communication from the ex French intelligence officer Oliver Herve Jaubert, who was captaining the vessel, claiming that the “vessel was not in Indian Territorial Waters but more than 12 nautical miles from the Indian coast”. This would put the boat in international waters when it was turned back. It must be noted here that despite requesting for the original GPS data, the Invisible lawyer was not supplied with it.

However, Mr. Jaubert did provide this website with coordinates that are not independently verified and supplied us with a copy of the complaint he made to the US Federal Bureau of Investigation (FBI). At his request we cannot provide a copy of that complaint.

Mr. Jaubert reiterated this story during a video phone call with the Invisible Lawyer (see screen shot below). We asked Mr. Jaubert if he had contacted the US Department of State, the agency responsible for handling the US’s international affairs. We did not hear anything conclusive on that request either.

Ajay Kumar/Oliver Herve Jaubert Video Call screenshot

Part of the facts Mr. Jaubert shared with us was also parallely presented to Indian news channel NDTV 24×7 in an interview on April 12 2018. Once more we wish to clarify that we have no independent information if the boat was in international waters at all. All we have is the statement of Mr. Jaubert given to us and to the news channel in question.


Screenshot of Whatsapp exchange with Oliver Herve Jaubert

Further, there is no confirmed information as to how far the boat was from the Indian coast line. It remains a matter of doubt if the boat was in India’s Exclusive Economic Zone at the time the alleged incident occurred.

Territorial Waters versus International Waters

If Mr. Jaubert is telling the truth, the legal consequences are grave.

Under customary international law and the UN Convention on the Law of the Sea, International Waters are free for all ships to use. Further ships and vessels in International Waters are subject to flag state jurisdiction; that is  an attack on a ship that was registered in the United States without the approval of the US government, would constitute an armed attack on the United States.

Mr. Jaubert’s allegations seem to imply that the Indian Coast Guard, a part of India’s Armed Forces, attacked a US based vessel. The allegation Mr. Jaubert makes is a serious and grave one. It alleges that India effectively declared war on the United States when it attacked the vessel, something that seems unlikely and in fact improbable. If India did attack a US flag ship, then most likely it would have done so with the consent of the United States government. But the fact that Mr. Jaubert’s story doesn’t talk about the US government responding to it, and no information has come out to that effect yet, it seems improbable to entirely believe his version of the story at this time.

While in our earlier piece we discussed in detail the legal consequences of India’s actions in its Territorial Waters, an analysis which remains unchanged, in this article we will examine the issue based on the additional information that has been supplied to us, which we nevertheless cannot independently verify. It needs to be reiterated at this point that the Invisible Lawyer is limiting itself to analysing the law based on the information that has been supplied to it, and is in no way making any unsubstantiated allegations against anyone in particular. All we are attempting to do here is a comprehensive analysis of all the possible factual scenarios, which is subject to further development of the story in any direction. We will continue to explore all the other possible scenarios as and when they present themselves.

Question of a valid visa, entry into India

In the statement given to NDTV, Mr. Jaubert mentioned that he and Princess Latifia had valid visas for India. This would imply that they were heading to Indian shores to seek and claim asylumfrom the UAE. An Indian visa does not guarantee entry into India, the final decision remains with the immigration officer at the concerned port of entry. A visa under the Passport (Entry into India) Act, 1920 only grants a person permission to enter the country and not a right. The permission can be revoked if the immigration officer is not satisfied about the purpose for which the person is entering India at the concerned port of entry.

Citizens of the UAE are entitled to a visa on arrival in India, but only through designated ports of entry, and if they made their application in advance. India issues an “electronic travel authorisation” for nationals from the UAE which can be converted into a visa-on-arrival. It is known as the e-visa programme and was set up to promote tourism. If Mr. Jaubert was a French national, he too would have been eligible for this e-visa, but if he was only a US citizen, he would not. It is unclear if both had e-visas or other forms of Indian visa when they entered/were approaching India. Mr. Jaubert did not mention the exact nature of the “valid visas for India”, as he claimed in the conversations with the Invisible Lawyer. Therefore, we cannot comment on the veracity of this claim.

Lack of clarity on issues of asylum

However, in the event they did have visas, it can be concluded that the claim that they were seeking asylum was a valid one. Therefore, the consequence of this claim can be inferred to mean that India allegedly turned back asylum seekers. Here, we must mention that there is no information as to why the UAE royalty in question, Princess Latifa, would wish to head by sea to India to seek asylum, given India is not a party to the Refugee Convention of 1951.

While the International Law is clear that a refugee may not be returned to their country of origin once they reach another state, it is not clear about the legality of sending boats with refugees back when they are on the high seas. For example, since 2013, the Australian government has turned back boats with refugees as they entered its territorial waters. This has been subject to intense criticism both within and outside Australia. But the policy continues to remain in effect, despite Australia being a party to the Refugee Convention of 1951.

Under Article 33 of the UN Convention on the Law of the Sea, a state has rights in its contiguous zone. This zone is 24 nautical miles from the baseline. Article 33 of the Convention provides that a state may exercise control in order to prevent infringement of its immigration laws. In the event the Government of India had information that the people on the boat were about to breach the conditions of their visa and seek asylum instead, it may have had rights to board the boat within the 24 nautical mile limit.

Section 5(4) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 provides that:

“The Central Government may exercise such powers and take such measures in or in relation to the contiguous zone as it may consider necessary with respect to, –

(a) the security of India, and

(b) immigrations sanitation, customs and other fiscal matters.”

Therefore, domestic legislation empowers India to enforce immigration control in the contiguous zone. This is apart form it exercising powers in relation to security. But this would necessitate a factual determination on the status of the vessel at the time it was entering Indian maritime waters (that is, Territorial Waters and the Contiguous Zone).

Article 57 of the UN Convention on the Law of the Sea declares that the Exclusive Economic Zone of a state extends to 200 nautical miles beyond the coastline. The Convention doesn’t speak of law enforcement powers in this zone. If the incident happened in this zone, then International Law is murky on this aspect. Unless the boat was engaged in an act of piracy, then the law is clear: any country would have the right to board and detain the vessel. However, this would mean that the people on the boat would have had to be brought to trial before Admiralty Courts in India. Something that hasn’t happened as of yet.

Our analysis still stands

We wish to clarify that our legal analysis in the preceding piece was based on facts available at that time and the analysis still stands to that extent. However, even the change in the facts would not affect or alter the analysis sharply. In case the fresh set of alleged facts is true – whether India was responsible for the incident in its Territorial Waters, Contiguous Zone, or the Exclusive Economic Zone – India’s actions, absent the necessary factual determinations beyond a shred of doubt, would have been in breach of International Law.

Given the new information that has been supplied to us along with our inability to independently verify this new information, we wish to offer no comment at this point except a clarification to our earlier article.

We cannot at this time independently verify if the boat was in Indian Territorial Waters or the high seas. What we can verify is that Princess Latifa had escaped and her whereabouts are currently unknown. There is no domestic law at present that the Indian courts can use to secure her presence and there is no domestic legislation that can be used to independently verify that India had used armed force to attack the ship.

Section 4 of the Coast Guard Act of 1978 gives the coast guard jurisdiction in India’s Maritime Zones, including India’s Exclusive Economic Zone. If the ship was within 200 miles of India’s coast line, the Indian Coast Guard would be able to engage with the vessel. But because Mr. Jaubert’s claim differs from what the Indian Coast Guard maintain, saying it was not an operation that was conducted by them.

If India had not conducted the operation, there needs to be a clarification from India’s Ministry of External Affairs. If India had, then perhaps it is in her national interest to not admit to it, given such an operation would technically be an armed attack on the United States.

In the event we receive more information, we will update this story.

Ajay Kumar is an Advocate practising at the Bombay High Court. He is currently retained by MZM Legal and may be reached at [email protected].