India's Maritime Jurisdiction

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The Supreme Court of India's ruling in the case of the two Italian marines who shot two Indian fishermen to death, underscores the objective territorial principle of jurisdiction. It is also a measure of both acquiescence in the protective and passive personality principles of jurisdiction and a recognition of the restrictions on jurisdiction under international law.

In a case filed by Italy against India, the Supreme Court (SC) of India held that India has, subject to the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) and its directions, jurisdiction to prosecute the two Italian marines responsible for the shooting which killed two Indian fishermen at a distance of about 20.5 nautical miles off the Indian coast of the state of Kerala.¹
While on its way to the Republic of Djibouti on 15 February 2012, the Italian ship, Enrica Lexie came across the Indian fishing vessel St Antony and allegedly mistook it for a pirate vessel. Due to the shooting that came from the Italian ship two persons on the Indian fishing vessel were killed. On 19 February 2012, the two Italian marines (petitioners 2 and 3 in the writ petition) responsible for the shooting were arrested and remanded to judicial custody.² They filed a writ petition (4542 of 2012) before the Kerala High Court (HC), challenging the jurisdiction of the state of Kerala to register the first information report (FIR 2/2012) and to conduct investigation.
During the pendency of the writ petition, criminal proceedings had been initiated against the marines in Italy. Since the decision of the HC was not forthcoming, the petitioners filed a writ petition before the SC on 19 April 2012.³ The HC by its decision of 29 May 2012 dismissed the writ petition upon holding that Kerala has jurisdiction up to 200 nautical miles from the Indian coast. The marines filed a special leave petition⁴ before the SC against this decision of the HC.⁵ The Italian government asserted its exclusive jurisdiction over the marines and invoked state immunity. India, however, claimed that it has territorial jurisdiction and that the marines are not entitled to state immunity. After hearing the parties, the SC reserved its judgment on 4 September 2012.
Issues before the SC
The SC set for itself two issues: jurisdiction of the Kerala police to investigate the shooting of the two Indians and jurisdiction of Indian or Italian courts to try the marines.
It noted that the shooting occurred in the contiguous zone where Kerala had no jurisdiction and in which the governments of two countries were involved.⁶ According to the SC, extension in 1981 of the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) to the exclusive economic zone by Section 7(7) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (Maritime Zones Act),⁷ had entitled the Union of India⁸ to take cognisance of, investigate and prosecute persons who committed any violation of the domestic laws in the contiguous zone. It further noted that Article 245(2) of the Indian Constitution expressly declared that no law made by Parliament shall be deemed to be invalid on the ground that it will have extraterritorial operation.⁹ The first submission of the petitioners therefore fell through.¹⁰
The apex court also found the area of difference between the UNCLOS and the Maritime Zones Act in Article 97.¹¹ According to the SC, this case does not involve a collision between the Italian ship and the Indian fishing vessel.¹² Further, an incident of navigation cannot involve a criminal act.¹³ The Court noted that the Article has no application to the exclusive economic zone of which the contiguous zone is a part and the area of the shooting. The Court therefore found that India is entitled to prosecute the two marines subject to Article 100 of the UNCLOS,¹⁴ and “directed” the Indian government to set up a special court¹⁵ for trial of the marines who “may re-agitate the question of jurisdiction before the Trial Court which will be at liberty to reconsider the matter in the light of the evidence…and in accordance with law”¹⁶ and clarified that if it is found that “both” India and Italy “have concurrent jurisdiction”, then “these directions will continue to hold good”.¹⁷ “Where more than one state has jurisdiction on a basis permitted by international law, it seems that each state is free to exercise prescriptive jurisdiction when it wishes and that priority to exercise enforcement jurisdiction depends solely upon custody.”¹⁸ The second submission of the petitioners was therefore found to be unsustainable.¹⁹
Prescriptive Jurisdiction
Jurisdiction of states is the legislative, judicial and administrative competence of states,²⁰ corresponding to their authority to prescribe, adjudicate and enforce. A state does not have jurisdiction to enforce unless it has jurisdiction to prescribe.²¹ International law recognises five general principles whereby a sovereign may exercise this prescriptive jurisdiction:²² (1) Territorial, wherein jurisdiction is based on the place where the offence is committed;²³ (2) national, wherein jurisdiction is based on the nationality or the national character of the offender; (3) protective, wherein jurisdiction is based on whether the national interest is injured;²⁴ (4) universal, which amounts to physical custody of the offender; and (5) passive personality, wherein jurisdiction is based on the nationality or national character of the victim.²⁵
While Italy claimed and India contested state immunity, the SC expressly confined itself to the issues of jurisdiction.²⁶ The HC held that the extent of immunity depends upon the circumstances in which the forces are admitted by the territorial state and upon any agreement between India and Italy on the terms and conditions governing the entry of forces in the coastal territory. “[T]here might be exceptions to the rule on immunity ratione materiae, where an international agreement constituted a lex specialis for certain crimes or in respect of criminal proceedings for acts committed on the territory of the forum State”.²⁷ India has signed but not ratified the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004.²⁸ India and Italy do not have any Status of Forces agreement that would allow the marines to claim absolute or qualified immunity from the Indian criminal justice system. There was, as found by the HC, no “entry” by the Italian marines to the territory of India. The HC therefore characterised the merciless attack of gunshots at the fishermen as neither an action in defence of Italy nor one in defence of the ship, but a private, illegal and criminal act which may not be held to be an act in the exercise of sovereign functions.
In 2012, the International Law Commission (ILC) Special Rapporteur suggested that,

if the question whether an allegedly criminal conduct could be attributed to the State of the official as a matter of State responsibility could plausibly be answered in the negative, it necessarily followed that such conduct by an official could not be an ‘official act’ for which a claim of immunity ratione materiae could be sustained.²⁹

Earlier, the Special Rapporteur noted that “grave criminal acts cannot be official acts”.³⁰ Comment 8 on Article 7 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries distinguishes “between unauthorised but still ‘official’ conduct, on the one hand, and ‘private’ conduct on the other”, and indicates that “isolated instances of outrageous conduct on the part of persons who are officials” should be treated as private conduct not attributable to the state. Immunity ratione materiae extends only to “acts within the scope of [officials’] duties as organs of State”.³¹
The SC made it clear that the marines will not be tried by Kerala and apparent that they may not be tried only in Italy unless it is found that they may not be tried also in India.³² The judgment thus underscored the objective territorial principle of jurisdiction and a measure of both acquiescence in the protective³³ and passive personality³⁴ principles of jurisdiction and recognition of the restrictions on jurisdiction under international law.
Postscript
After the SC had thus found the jurisdiction of India, Italy in its note verbale of 11 March 2013 communicated to India that the two marines will not return to India. On an undertaking given to the Court by the Italian ambassador, it had allowed them to visit Italy to cast their vote in the elections held on 24 and 25 February 2013. The note verbale earlier stated that “the Supreme Court decision of January 18, 2013, in which it was denied that the Indian jurisdiction on the incident occurred in international water”, that “there is an existing controversy with India concerning the provisions of UNCLOS and the general principles of international law applicable to this incident” and for reaching “an amicable solution to this controversy through an arbitration”.³⁵ However, on 22 March 2013, the marines returned to India after the SC restrained the Italian ambassador from leaving India and after India assured Italy that the marines would not be arrested on their return to India and would not be given the death penalty if found guilty.³⁶
Notes
1 The writ and special leave petitions were heard together as the subject matter and the reliefs prayed for in the writ petition before the Kerala High Court and the special leave petition before the Supreme Court were the same as those sought in the writ petition before the Supreme Court.
2 The marines were released on bail on 2 June 2012 on stringent conditions to stand trial from 7 June 2012.
3 Writ Petition (Civil) No 135 of 2012: Republic of Italy and Ors vs Republic of India and Ors.
4 Special Leave Petition (Civil) No 20370 of 2012: Massimilano Latorre and Ors vs Union of India and Ors.
5 Massimilano Latorre and Ors vs Union of India and Ors. (2012) 252 KLR 794.
6 Para 86 of the judgment.
7 Enacted under the authority of Article 297 of the Indian Constitution, which states in the relevant part: “(3) The limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime zones, of India shall be such as may be specified, from time to time, by or under any law made by Parliament”. Section 7(7) of the Maritime Zones Act states: “The Central Government may by notification in the official Gazette (a) extend, with such restrictions and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof to the exclusive economic zone or any part thereof; and (b) make such provisions as it may consider necessary for facilitation the enforcement of such enactment, and any enactment so extended shall have effect as if the exclusive economic zone or the part thereof to which it has been extended is a part of the territory of India.”
8 Para 84 of the judgment. The 1981 Notification provided that after Section 188 of the Code of Criminal Procedure, 1973, the following section shall be inserted: “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 anyplace in which he may be found or in such other place as the Central Government may direct under Section 13 of the Said Act.” Thus, it makes no difference that the offenders are foreign nationals. See Holmes vs Bangladesh Binani Corporation [1989] 1 AC at 1137. For a background note, see Peter D Clark, “Criminal Jurisdiction Over Merchant Vessels Engaged in International Trade”, 11 Journal of Maritime Law and Commerce (1980), 219, P C Rao, The New Law of Maritime Zones with Special Reference to India’s Maritime Zones (New Delhi: Milind, 1983), Harry Gibbs, “Criminal Law on the High Seas”, 6 MLAANZ Journal (1989), p 3.
9 See generally, United States vs Bowman, 260 US 94 (1922), Shalom Kassan, “Extraterritorial Jurisdiction in the Ancient World”, 29 American Journal of International Law (1935), p 237, in Ex parte Minervini [1959] 1 QB 155, Madson vs Kinsellsa, 343 US 341 (1951), R v Treacy [1971] AC 537, Pianka vs The Queen [1979] AC 107, United States vs Felix-Gutierrez, 940 F2d 1200 (9th Cir 1991), M Sornarajah, “Extraterritorial Criminal Jurisdiction: British, American and Commonwealth Perspectives”, 2 Singapore Journal of International & Comparative Law” (1998), 1, CSL Pacific Shipping Inc [2003] 214 CLR 397, 416, Robert D Peltz and Lawrence, W Kaye “The Long Reach of US Law over Crimes Occurring on the High Seas”, 20 University of San Francisco Maritime Law Journal (2007–2008), 199, and Danielle Ireland-Piper “Extra-territorial Criminal Jurisdiction: does the long arm of the law undermine the rule of law?”, 13 Melbourne Journal of International Law (2012), 1.
10 Para 16 of the separate but concurring judgment of Justice Chelameswar. At para 21, he relied also on Sections 1 and 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, which state respectively: “It extends to the whole of India including the limit of the territorial waters, the continental shelf, the exclusive economic zone or any other maritime zone of India within the meaning of Section 2 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976)”, and “(1) Whoever unlawfully and intentionally (a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten year and shall also be liable to fine.”
11 Para 92 of the judgment. 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.” See generally, O P Sharma, The International Law of the Sea: India and the UN Convention of 1982 (New Delhi: OUP), 2009.
12 Para 93 of the judgment.
13 Id, para 94. The International Tribunal for the Law of the Sea has competence to give an advisory opinion on the provisions of UNCLOS. Proceedings and Cases – Competence, http://www.itlos.org/procedings/competence/decisions_start_en.shtml
14 Para 100 of the judgment. Article 100 of UNCLOS states: “Duty to co-operate in the repression of piracy. All States shall co-operate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” See generally, Michael Bahar, “Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations”, 40 Vanderbilt Journal of Transnational Law (2007), p 1, Tullio Treves, “Piracy, Law of the Sea, and Use of Force: Developments Off the Coast of Somalia”, 20 European Journal of International Law (2009), p 399.
15 Para 101 of the judgment. Cf para 29 of the separate but concurring judgment of Justice Chelameswar, which states: “At any rate, it is not open for any Municipal Court including this Court to decline to apply the law on the ground that the law is extra-territorial in operation when the language of the enactment clearly extends the application of the law” and V S Mani, “It’s Our Boat, Our Courts”, The Hindu (New Delhi), 23 March 2013, p 10.
16 Para 102 of the judgment.
17 Para 101 of the judgment.
18 D J Harris, Cases and Materials on International Law (London: Sweet and Maxwell), 2004, p 266. Further, see Mali vs Keeper of Common Jail, 120 US 1 (1887), United States vs Flores, 289 US 137 (1933), Charles C Hyde, “The Supreme Court of the United States as an Expositor of International Law”, 18 British Yearbook of International Law (1937), p 1.
19 Para 36 of the separate but concurring judgment of justice Chelameswar.
20 See generally, F A Mann, “The Doctrine of Jurisdiction in International Law”, 111 Hague Recueil des Cours (1964), p 9, and id, “The Doctrine of Jurisdiction Re-visited after Twenty Years”, 186 Hague Recueil des Cours (1984), p 11.
21 US vs Smith (1982) 680 F 2d. 255 (1st Circuit).
22 These five bases of jurisdiction are based on the Harvard Research in International Law, Edwin D Dickinson, “Jurisdiction with Respect to Crime”, 29 American Journal of International Law, Special Supplement (1935), p 435 at p 445.
23 The Permanent Court of International Justice had this to say in the famous Lotus case (which has been referred to by the Court at paras 95 and 98 of the judgment): “There is no rule of international law prohibiting the state to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent.”, France vs Turkey, PCIJ Publication, Series A, No 10 (1927), at p 25. “It is an essential attribute of the sovereignty of this realm, as of all sovereign independent States, that it should possess jurisdiction over all persons and things within its territorial limits and in all causes civil and criminal arising within these limits.”, Compania Naviera Vascongado vs Cristina SS [1938] AC at 496-97. Further, see United States vs Wright-Barker, 784 F2d 161 (3d Cir 1986), M V Elisabeth and Ors vs Harwan Investment and Trading Pvt Ltd, 1993 AIR 1014, United States vs Nippon Paper Indus Co, 109 F3d 1 (1st Cir 1997), M V A L Quamar vs Tsavliris Salvage (International) Ltd & Ors, AIR 2000 SC 2826, Article 6 of the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, Ian Brownlie, Principles of Public International Law (London: Oxford, 2008), p 301, Michael Hirst, Jurisdiction and the Ambit of the Criminal Law (Oxford: OUP), 2003, Separate Opinion of Judge Guillaume in Congo vs Belgium, ICJ Reports (2002), para 4, Glen Plant, “The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation”, 39 International and Comparative Law Quarterly (1990), p 27.
24 See Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (The Hague: Martinus Nijhoff), 2008, United States vs Yousef, 327 F3d 56, 110 (2d Cir 2003), United States vs Archer, 51 F Supp 708 (SD Cal 1943).
25 See Geoffrey R Watson, “The Passive Personality Principle”, 28 Texas International Law Journal (1993), p 1, Eric Cafritz & Omer Tene, “Article 113-7 of the French Penal Code: The Passive Personality Principle”, 41 Columbia Journal of Transnational Law (2003), p 585, Mani, n 13, above.
26 See para 82 of the judgment. But this is not without what followed at para 97: … “some public ships and armed forces of foreign States may enjoy a degree of immunity from the territorial jurisdiction of a nation.” See, for instance, the US Supreme Court in Mohamed Ali Samantar vs Bashe Abdi Yousuf et al, 130 S. Ct. 2278 (2010), and Ingrid Wuerth, “Foreign Official Immunity Determinations in US Courts: The Case against the State Department”, 51 Virginia Journal of International Law (2011), 1 Further, see generally, Eyal Benvenisti, “Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts”, 102 American Journal of International Law (2008), p 241.
27 Topical summary of the discussion held in the Sixth Committee of the General Assembly during its sixty-seventh session, prepared by the Secretariat, UN Doc A/CN.4/657, 18 January 2013, para 35.
28 http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-13&ch... 3&lang=en. See Kuwait Airways Corporation vs Iraqi Airways Co. [1995] 103 ILR 340, Iº Congreso del Partido [1983] AC 244. See also Valeria Eboli and Jean Paul Pierini, “The ‘Enrica Lexie Case’ and the Limits of the Extraterritorial Jurisdiction of India”, 1 quaderni europie, n 39, Marzo 2012, and Douglas Guilfoyle <www.ejiltalk.org/author/dguilfoyle/>. See generally, Elizabeth H. Franey, Immunity, Individuals and International Law: Which Individuals are Immune from the Jurisdiction of National Courts under International Law (London: Lambert), 2011, Hazel Fox, The Law of State Immunity (London: Oxford), 2008, Stacy Humes-Schulz, “Limiting Sovereign Immunity in the Age of Human Rights”, 21 Harvard Human Rights Journal (2008), p 105, M Tomonori, “The Individual as Beneficiary of State Immunity: Problems of the Attribution of Ultra Vires Conduct’, 29 Denver Journal of International Law and Policy (2001), p 261, C A Whomersley, “Some Reflections on the Immunity of Individuals for Official Acts”, 41 International and Comparative law Quarterly (1992), p 848, S Sucharitkul, State Immunities and Trading Activities in International Law (Leiden: Martinus Nijhoff), 1959.
29 Report of the International Law Commission, Sixty-fourth Session (7 May-1 June and 2 July-3 August 2012, UN Doc A/67/10, paras 113 and 125.
30 Report of the International Law Commission, Sixty-third Session (26 April-3 June and 4 July-12 August 2011, UN Doc A/66/10, para 113.
31 Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti vs France) (Merits), ICJ Reports (2008), para 191.
32 This however is without prejudice to the 2012 prisoner exchange treaty between India and Italy under which the marines may serve their sentence in Italy as the case does not involve death penalty, The Hindu (New Delhi), 23 March 2013, at p 1.
33 The separate but concurring judgment of Justice Chelameswar states at para 19: “…this country ought to have the authority to apply and enforce the laws of this country against the persons and things beyond its territory when its legitimate interests are affected.”
34 See the arguments by the Union of India at para 65 of the judgment.
35 Press Statement on the Italian Marines Issue, Ministry of External Affairs, Government of India, 12 March 2013, http://www.mea.gov.in/press-releases.htm?dtl/21341/Press+statement+on+th..., and The Hindu (New Delhi), March 15, 2013, p 12.
36 See Orders of the Court, dated 14 and 18 March 2013, interview of the Italian Foreign Minister to la Repubblica, dated 22 March 2013, http://www.esteri.it/MAE/EN/Sala_Stampa/ArchivioNotizie/Interviste/2013/03/ 20130322_Intervista_Terzi_autore_Fabio_Bogo.htm?LANG=EN, and The Hindu (New Delhi), 23 March 2013, pp 1 and 10.

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