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IntroductionThis case is related to the death of two Indian fishermen onboard their fishing vessel “St. Antony”. They were allegedly shot by Italian Marines onboard the oil tanker Enrica Lexie, flying under the Italian flag, in the year 2012 when they were returning from a fishing expedition. At the time of the shooting their ship was in the contiguous zone of the Exclusive Economic zone of India. The Indian Coast Guard thus tracked Enrica Lexie and compelled them to return to Kochi with them and on their arrival two Italian Marine Officers Massimilano Latorre and Salvatore Girone, who had fired the shots were arrested. Indian authorities thus, exercised criminal jurisdiction over this case and charged two Italian Marines aboard the tanker with murder under Section 300 of the IPC and also, mischief under Section 425 of the Indian Penal Code (hereinafter referred to as “IPC”). India also claimed that Italy had violated their right to navigation under Articles 87(1)(a) and 90 of the United Nations Convention on the Law of the Sea (hereinafter referred to as “UNCLOS”). Questions arose about whether or not India had the right to exercise jurisdiction in this case and if the case should actually be heard by the International Tribunal for the Law of the Sea. In this article, I will thus, analyse the events that followed while focusing on the issue of jurisdiction in the contiguous zone.
Italy had taken India to the International Tribunal for the Law of the Sea in the year 2015 post which the case was referred to the Arbitral Tribunal as per Annex VII of UNCLOS. The five member Tribunal decided that India did not have jurisdiction to try the Italian marines. They were of the view that the Marines enjoyed immunity with respect to the acts committed. They thus, ordered India to cease any and all criminal prosecutions against them. This was also in light of the commitment displayed by Italy to try the accused as per Italian law in their own courts.
AnalysisIndia claimed the violation of its freedom of navigation because a ship flying under Italian colours had shot men onboard an Indian vessel in Indian territorial waters. The reports said that the ships were in the contiguous zone of India’s exclusive economic zone. This was the assumption made by India, that the ships were approximately 20.5 nautical miles from the coast which as per the Maritime Zones Act falls within in EEZ.[i] In the case of Italy v. Union of India, Kabir CJ said that as per Section 2 of the IPC India has jurisdiction over any offences committed within its territory including the EEZ. This power to exercise jurisdiction was also laid down under Notification 671E of 1981. He claims that India has the right to exercise sovereignty up to 24 nautical miles from its coast. These rights to exercise sovereignty are different from sovereign rights. The former has greater scope than the latter as it includes the right to exercise jurisdiction and initiate criminal proceedings against those who violate our laws.[ii] The primary issue here is that whether India can exercise these rights of sovereignty in the contiguous zone. There is a lack of information and law on what exact rights a country can apply in this zone which is why the confusion arose.
Contiguous zone is defined under Article 33 of UNCLOS. The definition is unclear and faces multiple issues like limitations that are present in the zone, pre-codifications status of the same and a complex negotiation history to name a few. In addition to that, there is also a lack of consistent State practise with respect to the rights exercised by countries in the specified zone. This led India to believe that they can exert criminal jurisdiction with respect to crimes committed in that area. The High Court of Kerala also, in the case of Massimilano Latorre v. Union of India, using Notification 671E and Section 2 of the IPC, held that contiguous zone was a part of the territory of India and hence, the IPC would apply to it. The problem with this holding was its conflict with international law because the fact that jurisdiction can be exercised in the contiguous zone is not stated anywhere in it. UNCLOS only provides that a coastal state can exercise necessary control to punish any infringement on customs, immigration, sanitary laws in the territorial sea.[iii] While there is scope to decide what constitutes ‘control’ on a case to case basis, it is clear that such control does not extend to exercising rights of sovereignty.[iv]
Furthermore, the decision by the Supreme Court of India in deciding the jurisdiction for the case did not include any debate on the purposes for which jurisdiction can be granted and the limitations on the same. I believe that this should have been a necessary argument while deciding the case, as it would be relevant to the contiguous zone as well, by virtue of it being applicable in the EEZ as well. These limitations are also recognised by domestic laws. In addition to the above, the Court also failed to discuss the issue with respect to the ‘security of India’. It is entailed under Section 5(4)(a) of the Maritime Act and in my opinion, would be the most persuasive argument for allowing India to exercise jurisdiction in this case. By shooting two Indian nationals, India could have argued that they put the security of the country at risk and hence, India has the right to prosecute them under its own laws.
The Tribunal relied on Italy’s argument that Article 97 and 217 of UNCLOS hold that when a ship is in high seas only the State under whose colours the ship is sailing can initiate penal proceedings. On the basis of the above India was kept from continuing the proceedings against the Marines as the Tribunal also used the argument to decide that India’s freedom to navigate under the UNCLOS had not been breached. Keeping that in mind, the Tribunal did recognise that India had faced loss of life of its citizens and directed Italy to pay compensation to the families of the victims of the shooting. Also, they rejected Italy’s claim for compensation for the detention of the Marines. While the decision to make Italy pay compensation was a notable one the Tribunal ignored the precedent set by the Lotus case. In that particular case a French ship had struck a Turkish ship and drowned several sailors in high seas. The Permanent Court of Justice had thus ruled that since the incident affected the ship flying under Turkish colours they had the right to prosecute the sailors involved in the incident. The case set forth the principle of ‘objective territoriality’ on the basis of which India should have been allowed to try the case as the victims of the shooting were onboard an Indian vessel.
ConclusionThe case has, primarily, highlighted the lack of clarity on the rights and limitations of a State’s power with respect to the contiguous zone even though the contiguous zone extends up to 24 nautical miles while the EEZ extends up to 200 nautical miles. The State has certain rights with respect to the EEZ but no such rights have been laid down for the contiguous zone and there lies the problem. One would assume that since the latter is closer to the territory of the State, they should be able to exercise jurisdiction in the area but that does not apply. The application of rights in the contiguous zone is derived and facilitated through the EEZ, and as per Article 58(2) of the UNCLOS the rights applicable in the EEZ have to conform to the limitations set on it. On the basis of the above statement we can conclude that the State does not jurisdiction in the contiguous zone because it lacks jurisdiction in the EEZ. The Courts have failed to make a clarification for the same and the case of Italy v. India is just another victim of this confusion that is yet to be clarified.
Apart from the legal issue, the case also brought to light the dangers of the sea. The Marines had mistaken the Indian vessel for a pirate ship and shot the men. UNCLOS has provisions for immunity of government controlled vessels and warships on the high seas but remains silent on the issue of armed personnel onboard private commercial vessels for safeguarding against piracy.[v] Former MEA legal advisor, Narinder Singh, remarked that granting immunity to the marines for this case would be a win for the commercial private sector, involved in the shipping industry, as the issue of Marines onboard their vessels to counteract piracy has been in a legal grey area for a while.[vi] By granting immunity to the Marines it would set a precedent for all future cases which can result in further loss of life and even endanger the security of sovereign States. Thus, the Tribunal had to proceed with caution while dealing with this case. They could not grant jurisdiction to India because it did not have the right to exercise the same despite their claims that they did because the crime had been committed onboard an Indian vessel. By allowing the Italian court to prosecute and try the Marines it upheld the jurisdictional decision to ensure punishment of the accused persons and ensured that no wrong precedent with respect to immunity of similar personnel was set.
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