Enrica Lexie - A Legal Perspective - 2

This post examines the question whether the two Italian marines are entitled to immunity from prosecution.

The principle of state immunity probably arises as a consequence of equality of states according to the rule “par in parem non habet imperium” – no state can claim jurisdiction over another. The jurisdictional immunity of foreign states has often also been variously – and often simultaneously – deduced not only from the principles of equality but also from the principles of independence and of dignity of states.[1]

The principles of international law regarding jurisdictional immunities of states have derived mainly from the judicial practice of individual nation. This first articulation of the principle of state immunity was recognized by the United States Supreme Court in its famous 1812 judgment of The Schooner Exchange v. McFaddon[2]. Chief Justice Marshall clearly enunciated the principle: “[The] full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him”. 

A theory that long prevailed, particularly in the UK that a foreign state could not be impleaded (i.e. sued) before a municipal tribunal under any circumstances. The doctrine of sovereign immunity was originally devised to uphold mutual respect between monarchs by according immunity to the exercise of their state functions within foreign jurisdictions. However, the 20th century saw the rise of industrial enterprises funded and controlled by the state: to accord immunity to such enterprises gave them an unfair commercial advantage and the absolute view of state immunity was gradually abandoned by the international community. 

A number of states started adopting the restrictive approach to immunity, allowing the exercise of jurisdiction over a state’s non-sovereign acts. The Austrian Supreme Court in 1950 concluded that in the light of increased activity of states in the commercial field the classic doctrine of absolute immunity had lost its meaning and was no longer a rule of international law. A significant change in American policy regarding state immunity occurred in 1952, when the then acting legal adviser to the U.S. State Department, Jack B Tate wrote a letter to the acting Attorney General of the US wherein he indicated acceptance of the restrictive theory of immunity by the US government. He pointed out that the adoption of the restrictive theory by more and more countries justified the restrictions involved. He noted that henceforth from the view of the Department of State, “private activities of foreign sovereigns” should be denied immunity in American courts. In Victory Transport Inc v Comisaria General de Abastecimientos y Transportes (1964)[3] the State Department refused to issue a certificate of immunity because the government of Francisco Franco of Spain was the appellant/defendant. Lacking a determination from the State Department of sovereign immunity, the court developed a set of operational tests by which acta jure imperii might be determined:

“Since the State Department’s failure or refusal to suggest immunity is significant, we are disposed to deny a claim of sovereign immunity that has not been “recognized and allowed” by the State Department unless it is plain that the activity in question falls within one of the categories of strictly political or public acts about which sovereigns have traditionally been quite sensitive. Such acts are generally limited to the following categories:

1.       Internal administrative acts such as expulsion of an alien

2.      Legislative acts, such as nationalization

3.      Acts concerning the armed forces

4.      Acts concerning diplomatic activity

5.      Public loans”.

The ‘acts concerning armed forces’ is relevant in the context of the case involving Italian marines.

An alternative approach treats functional immunity as a distinct principle which is concerned with attribution of acts undertaken on behalf of a State. As the International Criminal Tribunal for the former Yugoslavia explained in the Blaškić case,

State officials acting in their official capacity ... are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called ‘functional immunity’.  [Prosecutor v. Tihomir Blaskić (Judgment on the Request of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997), (1997) 110 ILR 607 (ICTY Appeals Chamber), at para. 38 (emphasis added)].

The norms of customary international law concerning the functional (or ratione materiae)  immunity of State officials from foreign (criminal, civil and administrative) jurisdiction remain controversial and contemporary international law scholars still disagree about their scope of application and content.[4]

The United Nations’ International Law Commission (ILC) undertook a study on a key aspect of this topic, namely the functional (as well as personal) immunity of State officials from foreign criminal jurisdiction.[5] However, according to Mazzeschi, these works did not clarify the most controversial legal issues and further have not yet produced convincing results. In fact, both the ILC Special Rapporteurs have dogmatically accepted, without any form of critical review, the old ‘Kelsenian theory’, according to which all State officials have the right, in principle, to functional immunity from foreign jurisdiction regarding their ‘official’ acts, i.e., when acting in their official capacity.

According to the traditional long held view, functional immunity is based on the conceptual premise that acts performed by an agent in his/her official capacity and in the exercise of his/her duties cannot be attributed to the individual agent, but only and always to the State for which the official is acting. Therefore, functional immunity should not be procedural in nature, but rather should represent a substantive exemption from the law. This would mean that functional immunity is due to all foreign State officials and, at least in principle, would cover all their ‘official’ acts.

An early instance of a claim of functional immunity came in the case of a criminal charge against one MacLeod in 1841. Mr. MacLeod, a member of the British armed forces, allegedly attacked a ship moored in New York State while under orders from his government to do so. Much later, he was arrested while visiting the United States on unrelated business and put on trial in New York for a murder resulting from the destruction of the ship. The British government objected claiming that the attack was an official act and therefore any responsibility born by Mr. MacLeod should be transferred to the United Kingdom resulting in his release from custody and trial. The British and American governments essentially agreed,

[t]hat an individual, forming part of a public force, and acting under the authority of his government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute.

Nevertheless, Mr. MacLeod was tried in New York State on the allegations of murder.[6] While the executive branch of the United States Federal Government seems to have conceded that MacLeod should have benefited from functional immunity, this was not a universal sentiment in the federal government at the time.

It is in the light of the above discourse one needs to assess whether the Italian marines were entitled to immunity from prosecution. 

In the Indian Supreme Court, reliance was placed on behalf of the Union of India on the United Nations Privileges and Immunities Act, 1947, and the Diplomatic Relations (Vienna Convention) Act, 1972, which gave certain diplomats, missions and their members diplomatic immunity even from criminal jurisdiction. The author is of the opinion that reference to immunity of diplomats and foreign missions has no relevance to the facts of the present case. It needs to be pointed out that the vessel was not headed towards India or Indian territorial waters but was en route to Djibouti. So also the marines were not accredited to any mission in India.

The question for consideration is whether the Italian marines were members of the armed forces of the Republic of Italy? The answer to this is in the affirmative. Secondly, were they on aboard the Italian flagged tanker in their private capacity or pursuant to an order of the Republic of Italy? Though they were assigned to a commercial vessel by the Italian government, they were discharging their functions as members of the armed forces. They were not discharging the functions as private security guards hired by the owner of the vessel to protect the ship and its personnel and cargo against pirates. The argument that merely the presence of armed forces’ personnel on a private vessel does not make it a public ship or warship, again is of no relevance since the question is not inviolability of the ship but inviolability of the military personnel aboard the ship. Prof. Natalino Ronzitti emphasized that the Italian guards were members of the Italian military (he noted also that the legislative framework for private Italian guards had not yet been put in place). In particular, he pointed out that both national Italian law and the United Nations resolutions supported the use of armed guards to repel pirates. He argued that the actions of the Italian marines should be attributed to Italy and not the marines individually. This would exclude their criminal trial in India. Thus, the marines appear to have a strong case for raising the plea of immunity. Interestingly the Indian Supreme Court did not adjudicate on the question of immunity while dealing with the Special Leave Petition. At para 98 of the judgment, the Court observed:

"The principles enunciated in the Lotus case (supra) have, to some extent, been watered down by Article 97 of UNCLOS 1982. Moreover, as observed in Starke’s International Law, referred to by Mr. Salve, the territorial criminal jurisdiction is founded on various principles which provide that, as a matter of convenience, crimes should be dealt with by the States whose social order is most closely affected. However, it has also been observed that some public ships and armed forces of foreign States may enjoy a degree of immunity from the territorial jurisdiction of a nation." 

Strangely it was also argued that as per the Policy of the Government of India, no foreign arms or foreign private armed guards or foreign armed forces personnel, accompanying merchant vessels, were allowed diplomatic clearance. Nor is it the policy of the Government of India to enter into any Status of Forces Agreement (SOFA) by which foreign armed forces are given immunity from criminal prosecution. Firstly, the Italian vessel was transiting through the Indian Contiguous Zone/EEZ. It was either ‘intercepted’ or informed by the Indian Coast Guard to enter India’s territorial waters and proceed to the port of Kochi. Secondly, SOFA applies to foreign troops posted in the territory of another state pursuant to an agreement. In fact, India could not have even argued about India not having a Visiting Forces Agreement (VFA) which is similar to SOFA and which covers forces visiting the host state temporarily for the Italian vessel’s intended destination was not India but Djibouti. Thirdly, the vessel was sailing in an area which was prone to piracy and had witnessed attacks by pirates in the past. [Between 2011 and 2012, four Italian ships were attacked and boarded by pirates: the oil tanker "Savina Caylyn", with 22 crew members, boarded on February 8 by Somali pirates off the coasts of Yemen and released on December 21, 2011; the cargo ship "Rosalia D'Amato", with 22 crew members, boarded April 20 in full Arabian Sea and released November 25, 2011; the oil tanker "Enrico Ievoli", with 18 crew members, boarded in the waters off the Somali coast Dec. 27 and released April 23, 2012 following an operation conducted by the Navy and the tug platform "Asso 21" picked up in the night between 23 and 24 December 2012 off the coast of Nigeria]. 

Conclusion 

While India’s jurisdiction to try the two Italian marines may be well founded, especially in the light of the provisions of Article 86 of the UNCLOS, the marines may well be entitled to immunity from prosecution in the Indian courts.  

On 24^th August 2015, by a majority opinion of 15:6, the International Tribunal for the Law of Sea (ITLOS) asked both India and Italy to suspend all court proceedings and refrain from initiating new ones which might aggravate or extend the dispute submitted to the ITLOS for arbitration by Italy or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render.

ITLOS has further asked Italy and India to submit to it, the initial report on compliance of aforesaid measures not later than 24 September 2015.

Pursuant to the order passed by the ITLOS, the Supreme Court of India stayed all the proceedings against the Italian marines in relation to the Enrica Lexie incident.

The lawyer representing the Union of India told the Court that the Government of India was bound by the order passed by ITLOS and court ought also to honour the same. He further informed the court that a five-member tribunal (ITLOS Annex VII arbitral tribunal) would be set up to decide the issue of jurisdiction. The lawyer representing the marines requested the Court that the matter be “adjourned sine die” till another tribunal decides jurisdictional issue and the same be revived by either of the parties. However the bench did not agree with the suggestion and fixed the matter for further hearing in the third week of January, 2016.

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[1] Oppenheim’s International Law 9^th Edn pp 341-342

[2] [(1812) 7 Cranch 116]

[3] US Court of Appeals 2d Cir., 1964, 336 

[4] Ricardo Pisillo Mazzeschi – The functional immunity of State officials from foreign jurisdiction: A critique of the traditional theories http://www.qil-qdi.org/the-functional-immunity-of-state-officials-from-foreign-jurisdiction-a-critique-of-the-traditional-theories/#_ftn1

[5] Reports of the Special Rapporteurs: RA Kolodkin, ‘Preliminary report on immunity of State officials from foreign criminal jurisdiction’ (29 May 2008) UN Doc A/CN.4/601; RA Kolodkin, ‘Second report on immunity of State officials from foreign criminal jurisdiction’ (10 June 2010) UN Doc A/CN.4/631; RA Kolodkin, ‘Third report on immunity of State officials from foreign criminal jurisdiction’ (24 May 2011) UN Doc A/CN.4/646; C Escobar Hernández, ‘Preliminary report on the immunity of State officials from foreign criminal jurisdiction’ (31 May 2012) UN Doc A/CN.4/654; C Escobar Hernández, ‘Second report on the immunity of State officials from foreign criminal jurisdiction’ (4 April 2013) UN Doc A/CN.4/661; C Escobar Hernández, ‘Third report on the immunity of State officials from foreign criminal jurisdiction’ (2 June 2014) UN Doc A/CN.4/673.

[6] Macleod was acquitted for want of evidence.

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 15^th 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 26^th 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.

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[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.