The ad hoc Arbitration Tribunal constituted by Permanent Court of Arbitration (PCA) in Enrica Lexi or Italian Marines case released its Arbitral Award on 2nd July 2020. The award even though declared that both nations, i.e. India and Italy have concurrent jurisdiction on this matter, but ordered the Indian government to withdraw all criminal proceedings against the two marines and extradite them so that the further trial may continue in their home country. This judgement arises from an 8-year-old incident where two Italian Marine officers aboard Enrica Lexi [an Italian commercial oil tanker] shot dead two Indian fishermen onboard St Anthony [fishing vessel registered in India] mistaking them as pirates, 20.5 nm(nautical miles) off the coast of Kerala. The Indian coast guard seized the Italian ship and criminal proceedings were initiated against the two in Kochi.
In 2015, Italy approached the International Tribunal for the Law of the Sea (ITLOS), set up under the United Nations Convention for the Law of the Seas (UNCLOS), [of which both India and Italy are signatories] to resolve this dispute claiming its jurisdiction on the two marines. However, the Arbitral award by ITLOS failed to resolve the stalemate and Italy moved to PCA requesting it to constitute an ad hoc Arbitral Tribunal as per Annex VII of UNCLOS to adjudge this matter.
This article attempts to analyse the applicability of International Law i.e. UNCLOS provisions in this case along with the validity of India’s assertions of Jurisdiction.
UNCLOS AND ITS APPLICABILITY
The fact that the incident took place at 20.5 nm off the Indian coast, a distance at which India can exercise its ‘sovereign rights’ but not ‘sovereignty’ is the major point of this dispute.
Generally, Territorial Waters reflect international law principle of ‘la terre domine la mere’ which means land dominates the sea and renders complete sovereignty to Coastal state thus extending the penal jurisdiction of the state up to 12 nm into the sea. Nonetheless, Part V [contains provisions regarding the Exclusive Economic Zone(EEZ) that extends seawards up to 200nm from the baseline of a coastal state] of UNCLOS does not mention territorial ‘sovereignty’ but ‘sovereign rights’ that only includes rights of exploitation of natural resources and related uses and thus is sans penal jurisdiction [penal jurisdiction being a facet of sovereignty]. Article 33 of UNCLOS, related to powers of the state in Contiguous Zone [extends up to 24 nm], avers that state may exercise its control in Contiguous Zone only to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea thus rendering ambiguity regarding rights of the coastal state in case of a crime committed within this zone that is outside Territorial Waters.
Article 97 of UNCLOS provides that in the event of a collision or any other incident of navigation concerning the ship on the high seas, attracting 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; if applied in present case India cannot exercise its jurisdiction since this article vests the jurisdiction in Italy. The tribunal though rejected this argument put forward by Italy as the present incident did not occur in the High Sea.
In fact Article 97 would find itself in contrast with principles of international law. For instance, the Passive Nationality principle is a known principle in customary international law where a State has prescriptive jurisdiction over anyone, anywhere who injures its nationals i.e. jurisdiction is based on the nationality of the victim.
SS Lotus case (1927) was still a good precedent in this regard, until Enrica Lexi Award, as it addressed the question related to the extent of the criminal jurisdiction of a State. In a collision that took place in High seas between French (SS Lotus) and Turkish steamship (Boz- Kourt), the latter sank killing 8 Turkish men onboard. Following this collision when SS Lotus arrived at present day Istanbul, the Turkish government initiated criminal proceedings and imprisoned both, the Turkish ship Captain and the French Officer on watch of SS Lotus. This was objected by the French government asserting that Turkish government did not have jurisdiction to try a foreign national on a foreign vessel for an accident that occurred in High seas[ this principle later got codified as Article 97 in UNCLOS in 1982]. This case was referred to the Permanent Court of International Justice, (PCIJ) where it decided in favour of Turkey stating that Turkey had not acted in a manner contrary to the international law since the act committed on board the SS Lotus had affected the Boz-Kourt(Passive Nationality Principle). In another case, R. v. Baxter 1972 it was held that the presence of the accused within the jurisdiction was not an essential element of offences committed in England.
All these principles of International law justify India’s actions however Enrica Lexi case has perpetuated a new set of reasoning setting a deviating precedent in International Law. This prompts us to take a glance at the extent of jurisdiction of Indian Laws to further brace India’s jurisdictional claims.
Extraterritorial jurisdiction in India is derived from Sections 3,4 of IPC, 1860 and Section 188 of CrPC, 1973, where any offence committed by any person on a ship or aircraft registered in India can be taken into cognizance as if it has been committed on Indian territory. Since the two marines committed the offence of killing Indian fishermen onboard a ship [St Anthony] registered in India, they are amenable to the penal proceedings by India.
The Maritimes Zones Act, 1976 was enacted by India to determine the extent of Territorial waters, contiguous zone, Exclusive Economic Zone and other maritime zones of India and though India became a signatory of UNCLOS in 1995, this Act was already in complete consonance with the UNCLOS.
Exercising the power conferred by Section 7(7) of the Maritime Zones Act, the Government of India had extended the application of both the IPC 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, 1973.
Section 188A of CrPC adds that “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, such person may be dealt with in respect of such offence as if it had been committed in a 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 section uses the word ‘person’ expanding its applicability to foreigners as well. As the Enrica Lexi incident took place in Contiguous Zone which comes within the EEZ, it attracted section 188-A of CrPC and thus the proceedings undertaken by India were within limits of its jurisdiction.
Prevalence of Municipal/Domestic Law
The landmark case on the issue whether or not domestic law would prevail over the international law is Gramophone Co. of India Ltd. v. Birendra Bahadur it was held that ‘…..municipal law must prevail in case of such conflict. National Courts being organs of the National State and not organs of International law must perforce apply national law if international law conflicts with it. But the courts are under an obligation within legitimate limits, to so interpret the municipal statute as to avoid confrontation with the comity of nations or the well-established principles of international law. But if the conflict is inevitable, the latter must yield.’
Though the Arbitral Tribunal’s decision of attributing concurrent jurisdiction to both countries and directing Italy to compensate India for violating its Freedom of high seas(Article 87) and Right of navigation(Article 90) apparently appears to be in favour of India; nevertheless, its decision of attributing Functional immunity to Italian marines precluded India from exercising its jurisdiction. Furthermore, this decision of conferring Functional Immunity was opposed by two of the five judges stating that only the heads of governments and Foreign Minister and Diplomats enjoy immunity as per Vienna Convention on Diplomatic Relations of 1961.
Ultimately this decision by Arbitral Tribunal appears dicey for future course of Indian jurisdictional rights in respect of future international disputes. Further, it appears that the PCA’s Tribunal did not get into complications of jurisdiction and rather based its decision on a single aspect i.e. Functional Immunity.
Namrata Pal is a third year law student at Dr. Ram Manohar Lohia National Law University, Lucknow.