Wednesday, August 19, 2015

Enrica Lexie - A Legal Perspective - 1




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.


3 comments:

Peter Coates said...

Hi Kumar

Looks like a very complex case.

Difficult to decide which country (India or Italy) is in the right.

Regards

Pete

Kumar said...

Dear Pete

Article 86 of the UNCLOS does give India the jurisdiction. Question is of immunity from prosecution, considering the marines are members of Italy's Armed Forces and not private security guards. I will deal with immunity in Part 2.

Thanks for the comment.

Regards
Kumar

Peter Coates said...

Yes the legal status of fully armed private security guards and also private Western "armies" in warzones is certainly complicating Laws of War issues.

Regards

Pete