The post aims to analyse India’s extra-territorial
jurisdiction and immunity in the light of International law and the provisions
under municipal law with reference to the Enrica Lexie case. The first part deals with 'Jurisdiction'.
(Source: Wikipedia)
The
Facts of the Case which has led to a long standing dispute
between Italy and India are as under:
On 15th February 2012 while the Italian flagged
oil tanker MV Enrica Lexie was sailing off the coast of the Southern state of
Kerala close to the contiguous zone (about 20.5 nautical miles) but well within
the Exclusive Economic Zone (EEZ) of India, the vessel reported a pirate
attack. Italy contended that it mistook an Indian fishing vessel MV St. Antony
to be a pirate vessel and as the said vessel drew closer to the Italian tanker,
Chief Master Sergeant Massimiliano Latore and Sergeant Salvatore Girone who
were part of the Vessel Protection Detachment (VPD) assessed that it was on a
collision course with the Italian tanker and which modus operandi was
consistent with a pirate attack used their automatic weapons against the St.
Antony without warnings leading to the killing of two Indian fishermen, Ajesh
Binki and Valentine. The vessel reported
the incident through the ‘Mercury Chat’ linking together several navies all
over the world including the Indian Navy and was also sent to the Maritime
Security Centre Horn of Africa (MSCHOA) located in Northwood, United Kingdom
close to the Operation Headquarters (OHQ) of the European Union Counter Piracy
Mission (EUNAVFOR). After the event the vessel allegedly continued to sail on
its scheduled route to Djibouti and when it had covered almost 38 nautical
miles, the vessel was requested to alter course to the Kochi Port. Italians
have strongly contended that the Enrica Lexia was allegedly lured to enter the
Indian port under the guise of cooperating to identify pirates apprehended by
the Indian Coast Guard.
The Master of the vessel was informed that a First
Information Report (FIR) had been lodged at Neendakara, Kollam under section
302 (murder) read with section 34 (acts done in furtherance of common
intention) of the Indian Penal Code (IPC) 1860 against the marines who had
allegedly fired on the St Antony.
The two marines, Massimiliano Latorre and Salvatore Girone,
were remanded to judicial custody for interrogation on charges of homicide
under Section 302 of the IPC. Based on postmortem carried out on 16 February
2012, Kerala Police charged the two marines with murder.
On 23 February 2012, the Kerala High Court admitted a
petition filed by the Italian Consul General in Mumbai and the two accused
Marines to stay all further proceedings in the case against the two marines.
The petition submitted that the Kerala Police had no authority to conduct
investigation in the case and that courts in India had no jurisdiction as the
incident had occurred beyond Indian territorial waters.
The two issues which have been the bone of contention
between India and Italy have been and continue to be the following:
(i) Whether the Italian Marines on board the vessel who shot
and killed the two Indian fishermen on board M V Antony registered in India, in
the contiguous zone / Exclusive Economic Zone of India are liable to be
prosecuted for murder in accordance with the Indian laws.
(ii) Whether the Italian Marines are entitled to sovereign
immunity against the prosecution in India.
In the petition before the Kerala High Court, the marines
who were the petitioners contended that "There was an attempted piracy
attack on the Vessel following which the Master of the Vessel immediately set
into a motion the Established International Procedures to be undertaken by
Vessels during attempted piracy attacks including setting into motion the alarm,
flash lights and horns. The Master also activated Ship Alert Security System
(SASS) which sent out signals to the Italian Maritime Rescue Coordination
Center (MRCC). The Master also reported the incident on the mercury chart which
links together and transfers information to the community including several
Navies across the world fighting piracy including to the Indian Navy Head
Quarters. The military report was also done. A report was also sent to MSCHOA
at UK." The High Court was not convinced by the
Petitioners’ contention about the attempted piracy attack observing that the
attempted piracy attack was very vague and that no record was produced to show
that the marines, before shooting down the fishermen, had even intimated any
piracy threat to the Captain of the ship or that the Captain had recorded the
same. Further, there was no document in support of the plea that the Master had activated
the Ship Alert Security System or that any signal was sent to the MRCC, Mercury
chart or to any of the Navies across the world. The contentions as to
jurisdiction and immunity raised by the petitioners with reference to both
international law and Indian law were rejected by the Hon’ble High Court and
the petition was dismissed. The marines challenged the order of the High Court
in the Hon’ble Supreme Court of India. The Apex Court while dismissing the
petition filed by the Italian marines ruled that though the State of Kerala did
not have jurisdiction beyond the twelve mile limit, a special federal court was
directed to be constituted to try the marines.
In January 2014, India decided to prosecute the Italian
marines under the provisions of section 3 of the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation and Fixed Platforms on the
Continental Shelf Act, 2002 an enactment which is based on the Convention for
the Suppression of Unlawful Acts Against the Safety of Maritime Navigation
(SUA). The SUA Convention was passed in 1988 with the goal of suppressing
international terrorism. Italy criticised the prosecution pursuant to the SUA
Convention as equating the incident to an act of terrorism. On 7 March 2014,
the India dropped the SUA charges against the marines.
The
Indian Law
Question (i) which relates to jurisdiction can be divided into sub-parts. The jurisdictional aspect involved the scope of the Indian
Penal Code (IPC) sections 2 (punishment of offences committed within India), 3
(punishment of offences committed beyond but which by law may be tried within
India) and 4 (extension of code to extra territorial offences). Before the
Kerala High Court, the State’s Advocate General conceded that section 4 was not
applicable to the facts of the present case. The first question is whether this
occurred within or outside India. The place of occurrence is not in
dispute – the incident occurred at a distance of about 20.5 nautical miles away
which is clearly beyond the territorial waters and in the “contiguous zone”.
Therefore, it is not within India and section 2 would not be ordinarily
applicable. But under the Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zones Act, 1976 (referred to as the Maritime
Zones Act 1976), the Indian state claims full and exclusive
sovereign rights in the “Exclusive Economic Zone (EEZ)”, a region which extends
up to 200 nautical miles and which includes the contiguous zone and has
conferred upon the Union government the authority to extend Indian laws to this
area with such restrictions and modifications as it thinks fit. Under s.7 (7)
of this law, both the IPC and Code of Criminal Procedure (CrPC) have been extended
to this region through a gazette notification with an additional provision
s.188A inserted into the CrPC which allows any person committing an offence in
the region to be “dealt with in respect of such offence as if it had been
committed in any place in which he may be found or in such other place as the
Central Government may direct….”. This legal fiction, it was argued, allows the
marines to be investigated and charged for murder just like any other
individual on the mainland.
What are India’s rights as a coastal state under the
Maritime Zones Act, 1976 in respect of the Territorial Waters, Contiguous Zone
and the Exclusive Economic Zone?
Sub-section
(1) of section 3 of the Act of 1976 stipulates that the
sovereignty of India extends and has always extended to the territorial waters
of India (hereinafter referred to as the territorial waters) and to the seabed
and subsoil underlying, and the air space over, such waters.
Sub-section
(4) of section 5 of the Maritime Zones Act, 1976 stipulates 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)
immigration, sanitation, customs and other fiscal matters.
Under
sub-section (4) of section 7 of the said Act, in the exclusive economic zone,
the Union (India) has,-
(a)
sovereign rights for the purpose of exploration, exploitation, conservation and
management of the natural resources, both living and non-living as well as for
producing energy from tides, winds and currents;
(b)
exclusive rights and jurisdiction for the construction, maintenance or
operation of artificial islands, off-shore terminals, installations and other
structures and devices necessary for the exploration and exploitation of the
resources of the zone or for the convenience of shipping or for any other
purpose.
(c)
Exclusive jurisdiction to authorize, regulate and control scientific research;
(d)
Exclusive jurisdiction to preserve and protect the marine environment and to
prevent and control marine pollution; and
(e)
Such other rights as are recognized by International Law.
While Section 3 declares that “the sovereignty of India extends,
and has always extended, to the territorial waters”, no such declaration is to
be found in the context of contiguous zone, its powers being restricted to
security of the state, immigration, sanitation, customs and other fiscal
matters. On the other hand, with reference to continental shelf, it is declared
under Section 6(2) that “India has, and always had, full and exclusive sovereign rights in
respect of its continental shelf”. With reference to exclusive economic zone,
Section 7(4)(a) declares that “in the exclusive economic zone, the Union has sovereign rights for the
purpose of exploration, exploitation, conservation and management of the
natural resources, both living and non-living as well as for producing energy from
tides, winds and currents and construction and maintenance of artificial
islands and installations.”
The Indian Supreme Court in its judgment dated 18th January 2013 passed in Writ Petition (Civil) No 135 of 2012 observed:
Whatever
may be the implications flowing from the language of the Maritime Zones Act and
the meaning of the expression “sovereign rights” employed in Sections 6(2),
6(3)(a)6 and 7(4)(a), (Whether or not the sovereignty of India extends beyond
its territorial waters and to the contiguous zone or not)7, in view of the
scheme of the Act, as apparent from Section 5(5)(a)8 and Section 7(7)(a)9, the
application of “any enactment for the time being in force in India” (like the
Indian Penal Code and the Code of Criminal Procedure), is not automatic either
to the contiguous zone or exclusive economic zone. It requires a notification
in the official gazette of India to extend the application of such enactments
to such maritime zone. The Maritime Zones Act further declares that once such a
notification is issued, the enactment whose application is so extended “shall
have effect as if” the contiguous zone or exclusive economic zone, as the case
may be, “is part of the territory of India”. Creation of such a legal fiction
is certainly within the authority of the Sovereign Legislative Body.
14. In
exercise of the power conferred by Section 7(7) of the Maritime Zones Act, the
Government of India extended the application of both the Indian Penal Code and
the Code of Criminal Procedure to the exclusive economic zone by a notification
dated 27-08-1981. By the said notification, the Code of Criminal Procedure also
stood modified. A new provision – Section 188A - came to be inserted in the
Code of Criminal Procedure, which reads as follows:
“188A.
Offence committed in exclusive economic zone : When an offence is committed by any
person in the exclusive economic zone described in sub-section(1) of Section 7
of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other
Maritime Zones Act, 1976 (80 of 1976) or as altered by notification, if any,
issued under sub-section (2) thereof, such person may be dealt with in respect
of such offence as if it had been committed in any place in which he may be
found or in such other place as the Central Government may direct under Section
13 of the said Act.”
This provision has
not been notified under the Code of Criminal Procedure and a new provision
cannot be introduced through a gazette notification under the Maritime Zones Act,
1976 but must be incorporated only through an amendment enacted by parliament –
in simple words, this is an expansion of the scope of a criminal law which
cannot be accomplished in this manner.
International
Law
According to Rebecca Wallace[1]
the bases on which jurisdiction may be exercised are:
Territorial Principle
Nationality Principle
Protective (or Security) Principle
Universality Principle
Passive Principle
Territorial Principle
Events occurring within a state’s territorial boundaries and
persons within that territory, albeit their presence is transitorily, are as a
rule subject to the application of local law. A crime may be commenced from a
state and consummated in another. In this case if the ship is considered to be subject
to the jurisdiction of the state whose flag she flies and if the shots have been
fired from that vessel and thereby has fatally injured persons on board a ship registered
in India, the question is which state would have jurisdiction? The answer is
both. The territory or the ship from where the shots were fired has
jurisdiction under the subjective territorial principle and the territory where
the injury was sustained, on the basis of objective territorial principle has
jurisdiction. It needs to be emphasized that
there is no rule of international law which gives a state where a crime is
consummated, exclusive jurisdiction.
Nationality Principle
Jurisdiction exercised on this principle relates to the nationality
of the offender. A state may exercise jurisdiction over any of its nationals wherever
they may be and in respect of offences committed abroad. This is referred to as
the active nationality principle. A state may prescribe law for situations
where its nationals are victims of the conduct being regulated. This is known
as the passive nationality principle or the passive personality principle. The Kerala
High Court relied on the ‘objective territorial principle’ and ‘passive personality
principle’ for trying the two marines in India.
On behalf of the Union of India it was submitted that the
decision in the Lotus case[2]
continued to be good law in cases such as the present one. It was urged that under
the Passive Personality principle referred to above, States may claim
jurisdiction to try an individual where actions might have affected nationals
of the State.
In the Lotus case, the question relating to the extent of
the criminal jurisdiction of a State was brought to the Permanent Court of International
Justice in 1927. The said case related to a collision between the French
Steamship ‘Lotus’ and the Turkish Steamship ‘Boz-Kourt’, which resulted in the
sinking of the latter ship and the death of eight Turkish subjects. Once the Lotus
arrived at Constantinople, the Turkish Government commenced criminal proceedings
both against the Captain of the Turkish vessel and the French Officer of the
Watch on board the Lotus. On both being sentenced to imprisonment, the French Government
questioned the judgment on the ground that Turkey had no jurisdiction over an
act committed on the open seas by a foreigner on board a foreign vessel, whose
flag gave it exclusive jurisdiction in the matter. On being referred to the
Permanent Court of International Justice, it was decided that Turkey had not
acted in a manner which was contrary to International Law since the act
committed on board the Lotus had effect on the Boz-Kourt flying the Turkish
flag. In the ninth edition of Oppenheim’s International Law, which has been
referred to in the judgment under consideration, the nationality of ships in
the high seas has been referred to in paragraph 287, wherein it has been
observed by the learned author that the legal order on the high seas is based
primarily on the rule of International Law which requires every vessel sailing
the high seas to possess the nationality of, and to fly the flag of, one State,
whereby a vessel and persons on board the vessel are subjected to the law of
the State of the flag and in general subject to its exclusive jurisdiction. In
paragraph 291 of the aforesaid discourse, the learned author has defined the
scope of flag jurisdiction to mean that jurisdiction in the high seas is
dependent upon the Maritime Flag under which vessels sail, because, no State
can extend its territorial jurisdiction to the high seas.
UNCLOS
The United Nations Convention on the Law of the Sea (UNCLOS),
also called the Law of the Sea Convention or the Law of the Sea treaty,
is the international agreement that resulted from the third United Nations
Conference on the Law of the Sea (UNCLOS III), which took place between 1973
and 1982. The Law of the Sea Convention defines the rights and responsibilities
of nations with respect to their use of the world's oceans, establishing
guidelines for businesses, the environment, and the management of marine
natural resources.
Italy relied heavily on the scope and interpretation of
Article 97 of the UNCLOS which is reproduced hereunder:
Article 97: Penal
jurisdiction in matters of collision or any other incident of navigation
1. In
the event of a collision or any other incident of navigation concerning a ship
on the high seas, involving the penal or disciplinary responsibility of the
master or of any other person in the service of the ship, no penal or
disciplinary proceedings may be instituted against such person except before
the judicial or administrative authorities either of the flag State or of the
State of which such person is a national.
2. In
disciplinary matters, the State which has issued a master's certificate or a
certificate of competence or licence shall alone be competent, after due legal
process, to pronounce the withdrawal of such certificates, even if the holder
is not a national of the State which issued them.
3. No
arrest or detention of the ship, even as a measure of investigation, shall be
ordered by any authorities other than those of the flag State.
The said provision applies to collisions and to any other
incident of navigation. Italy’s contention has been that any other incident of
navigation has to be read in conjunction with Article 94[3].
The Indian courts do not seem to have been convinced about
the applicability of articles 97 and 94 to the facts of the present case. The
Indian Supreme Court observed that the
expression “incident of navigation” occurring under Article 97 of the UNCLOS is
not a defined expression. Therefore, necessarily the meaning of the expression
must be ascertained from the context and scheme of the relevant provisions of
the UNCLOS. According to an Indian expert Prof. V S Mani the
International Law Commission’s Commentary to the Draft 1958 Convention which
shed light on what the phrase “incident of navigation” meant: “Damage to a
submarine telegraph, telephone or high-voltage power cable or to a pipeline …
may be regarded as an ‘incident of navigation’….” Thus the act of firing could not
be construed to be an incident of navigation. It is important to note that Article
94 though exhaustive does not explicitly provide for a duty in respect of commission
of a crime by members of the crew. It provides for jurisdiction and control in
administrative, technical and social matters over ships flying its flag.
The Indian Supreme Court rightly relied upon Article 86 of the 1982 Convention which
falls under Part VII dealing with High Seas - The provisions of this Part apply to all parts of the sea that are not
included in the exclusive economic zone, in the territorial sea or in the
internal waters of a State, or in the archipelagic waters of an archipelagic
State. This article does not entail any abridgement of the freedoms enjoyed by
all States in the exclusive economic zone in accordance with article 58.
From the language of Article 86 it is very clear that
Part-VII applies only to that part of the sea which is not included in the
exclusive economic zone, territorial waters, etc. Exclusive Economic Zone is
defined under Article 55 as follows:
“Article 55:
Specific legal regime of the exclusive economic zone: The
exclusive economic zone is an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, under which the
rights and jurisdiction of the coastal State and the rights and freedoms of
other States are governed by the relevant provisions of this Convention.”
The Apex Court negated Italy’s contention and held that Article
97 was not applicable to the Exclusive Economic Zone irrespective of the
meaning of the expression “incident of navigation”.
On 26th
June 2015, Italy notified a Statement of Claim instituting proceedings against
India before an arbitral tribunal to be constituted under Annex VII to the
United Nations Convention on the Law of the Sea (UNCLOS). In its Statement of
Claim, Italy alleged existence of a dispute between the two states concerning
an incident of navigation in India’s Exclusive Economic Zone (EEZ).
Italy requested the
International Tribunal for the Law of the Sea (ITLOS) to prescribe the
following provisional measures:
(a) India shall refrain from taking or enforcing any
judicial or administrative measures against Sergeant Massimiliano Latorre and
Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and
from exercising any other form of jurisdiction over that Incident; and
(b) India shall take all measures necessary to ensure that
restrictions on the liberty, security and movement of the Marines be
immediately lifted to enable Sergeant Girone to travel to and remain in Italy
and Sergeant Latorre to remain in Italy throughout the duration of the
proceedings before the Annex VII Tribunal.
At the time of writing, this case is pending before the ITLOS for hearing and orders on provisional measures.
Part 2 of the post will focus on the law relating to Immunity.
[1]
Rebecca M. M. Wallace International Law Third Edn. pp112-114
[2] S.S. Lotus (France v Turkey [(1927) PCIJ ser
A, No. 9]
[3] Duties of the flag State
1. Every State shall effectively exercise its jurisdiction and
control in administrative, technical and social matters over ships flying its
flag.
2. In particular every State shall:
(a) maintain a register of ships containing the names and
particulars of ships flying its flag, except those which are excluded from
generally accepted international regulations on account of their small size;
and
(b) assume jurisdiction under its internal law over each ship
flying its flag and its master, officers and crew in respect of administrative,
technical and social matters concerning the ship.
3. Every State shall take such measures for ships flying its flag
as are necessary to ensure safety at sea with regard, inter alia, to:
(a) the construction, equipment and seaworthiness of ships;
(b) the manning of ships, labour conditions and the training of
crews, taking into account the applicable international instruments;
(c) the use of signals, the maintenance of communications and the
prevention of collisions.
4. Such measures shall include those necessary to ensure:
(a) that each ship, before registration and thereafter at
appropriate intervals, is surveyed by a qualified surveyor of ships, and has on
board such charts, nautical publications and navigational equipment and
instruments as are appropriate for the safe navigation of the ship;
(b) that each ship is in the charge of a master and officers who
possess appropriate qualifications, in particular in seamanship, navigation,
communications and marine engineering, and that the crew is appropriate in
qualification and numbers for the type, size, machinery and equipment of the
ship;
(c) that the master, officers and, to the extent appropriate, the
crew are fully conversant with and required to observe the applicable
international regulations concerning the safety of life at sea, the prevention
of collisions, the prevention, reduction and control of marine pollution, and
the maintenance of communications by radio.
5. In taking the measures called for in paragraphs 3
and 4 each State is required to conform to generally accepted
international regulations, procedures and practices and to take any steps which
may be necessary to secure their observance.
6. A State which has clear grounds to believe that proper
jurisdiction and control with respect to a ship have not been exercised may
report the facts to the flag State. Upon receiving such a report, the flag
State shall investigate the matter and, if appropriate, take any action
necessary to remedy the situation.
7. Each State shall cause an inquiry to be held by or before a
suitably qualified person or persons into every marine casualty or incident of
navigation on the high seas involving a ship flying its flag and causing loss
of life or serious injury to nationals of another State or serious damage to
ships or installations of another State or to the marine environment. The flag
State and the other State shall cooperate in the conduct of any inquiry held by
that other State into any such marine casualty or incident of navigation.
