Can India Adjudicate the Enrica Lexie incident? An analysis of jurisdictional issues
The deaths of two Indian fisherman, purportedly caused by marines stationed on board the Italian merchant ship the Enrica Lexie has created a furore in Kerala.
As things stand, the Italian ship, and the two accused marines have been arrested, with the marines under investigation for murder. The families of the fishermen have filed petitions before the court in Kerala seeking compensation from the ships operator. Italy meanwhile has filed petitions seeking quashing of the cases registered against the marines inter alia as it questions the jurisdiction of India to adjudicate the matter (both on grounds of territorial jurisdiction as well as in view of the sovereign immunity extended to naval personnel).
In parallel to the judicial and investigative proceedings, the governments of the two countries have launched a somewhat misguided and muddled attempt at finding a diplomatic solution to the problem.
Of particular interest in the many divergences between the two country’s views on the matter are the arguments posed regarding jurisdiction and sovereign immunity. This article attempts to shed light on the former of the two issues. In this regard, it must be kept in mind that it is possible for more than one country or court to have jurisdiction over a matter. Italy will need to demonstrate before the Indian courts either that there is a rule of International Law that forbids Indian courts from adjudicating the matter or that Indian domestic legislation (under which the marines will be tried) contravenes International law.
Italy, it appears, is seeking to rely on Article 92 of United Nations Convention on the Laws of the Sea, 1982, (UNCLOS) which states that ships can sail under the flag of only one state and that except for exceptional circumstances, expressly provided for in international treaties or in the Convention, a ship shall be subject to exclusive jurisdiction on the high seas. Based on this principle, it appears that India will have to discharge the burden of showing a positive norm of international law that allows it to claim exceptional circumstances and therefore divergence from Article 92 UNCLOS.
As far as the facts of the incident are concerned, it is sufficient for the present purposes to state that the act of shooting occurred from an Italian ship, while the fishermen who were shot were, in addition to being Indian citizens, on an Indian vessel. There has been divergence as to the location of the shooting itself, India claims the incident occurred within its territorial waters while Italy claims it occurred in the high seas.
UNCLOS in Articles 2 and 3, states that a coastal state enjoys sovereignty over its territorial sea, which may extend to a distance of 12 nautical miles from the relevant base point. UNCLOS also recognizes the rights of a coastal state over three other areas: (a) the Exclusive Economic zone[1], (b) the Contiguous zone [2], and (c) the Continental Shelfiii.
Indian law (as contained in the Territorial Waters, Continental Shelf [3], Exclusive Economic Zone and Other Maritime Zones Act, 1976) recognizes the aforesaid principles and accordingly, Section 3 of the Act states that the sovereignty of India extends and has always extended to the territorial waters of India (which extend to a distance of 12 nautical miles) and to the seabed and subsoil underlying, and the air space over, such waters. India has also declared a contiguous zone [4] of 24 nautical miles and an EEZ [5] and continental shelf of 200 nautical miles.
A large proportion of reports have stressed that the crucial point in deciding the question of jurisdiction is to determine where the incident occurred. While undoubtedly, it is important to establish the exact location of the event, merely showing that the shooting occurred outside Indian territorial waters is insufficient to deny India jurisdiction. Territory is merely one method whereby jurisdiction can be conferred on a court and there is no principle of International law that mandates the use of only this principle to establish jurisdiction.
Section 1 of the Indian Penal Code [6], 1860, provides that the Code extends to the whole of India except the State of Jammu and Kashmir. Per Section 18, “India” is defined as the territory of India, except Jammu and Kashmir. The Code is therefore normally applicable to the extent of India’s territorial waters but not to India’s EEZ or contiguous zones.[7]
However, Section 4 states that the provisions of this Code also apply to offences committed by any Indian in any place outside India and to any offences committed by any person on any ship or aircraft registered in India, wherever it may be. Further, under Section 188 of the Code of Criminal Procedure, 1973, when an offence has been committed outside India: (a) by a citizen of India or (b) by a person, not being a citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. [8]
Thus, under domestic legislation, a foreign citizen can be prosecuted in India for the commission of an offence on board an Indian ship or airplane, even if the ship or airplane is outside Indian territory at the time of commission of the offence. The principle as enunciated by Indian Courts is that a foreign subject resident in a foreign territory instigating the commission of an offence which in consequence is committed in India territory is not amenable to the jurisdiction of Indian courts if the instigation had not taken place in India.[9]However, if a foreigner initiates an offence which is completed within Indian territory, he is, if found within Indian territory, liable to be tried by the Indian Court within whose jurisdiction the offence was completed.[10]
This provision of domestic law is very much in line with the principles enunciated in Article 91 of UNCLOS, which recognizes that ships have the nationality of the country whose flag they fly, and further that it is the responsibility of each state to exercise jurisdiction and control over ships flying its flag.
The question therefore becomes one of where the crime itself was committed – was it on board the Italian or Indian ship. The position in law on the matter is fairly clear – no doubt due to the fact that for offences such as murder, manslaughter etc – the effect is of utmost importance in constituting the offence.[11] As noted in the Chottalal Babur case, “…It is like the case of the firing of a shot, or the throwing of a spear. If a shot is fired, or a spear thrown, from a place outside the boundary of a county into another county with intent to injure a person in that county, the offence is committed in the county within which the blow is given...”. India it appears would have a good case as the argument that the effect of the shooting was on Indian nationals, on Indian territory and therefore the crime was committed in India seems a fairly strong one.
To be noted that Article 27 of UNCLOS while recognizing that criminal jurisdiction should not normally be exercised by a coastal State over a foreign ship passing through the territorial sea in connection with any crime committed on board the ship during its passage, creates an exception for instances where the consequence of the crime extends to the coastal state.
As far as the question of whether a positive or permissive rule of International Law exists that permits India to prosecute the marines is concerned, one only needs to look at the provisions of the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation Convention, 1988 (SUA). This Convention, to which both Italy and India are signatories, in Articles 3 and 6 thereof reaffirms the position that jurisdiction may be conferred by the effect of an illegal act.
Per Article 3 of SUA, any person commits an offence inter alia if that person unlawfully and intentionally:
(a) commits, attempts to commit, threatens to commit, or abets the seizure or exercise of control over a ship by force or threat of force or any form of intimidation;
(b) or commits any of the following acts if it endangers or is likely to endanger the safe navigation of that ship:
(i) an act of violence against a person on board; destroying a ship or damaging a ship or its cargo;
(ii) placing or causing to be placed on a ship a device or substance likely to destroy the ship or cause damage to the ship or its cargo;
(i) destroying or seriously damaging maritime navigational facilities or seriously interfering with their operation;
(ii) communicating information known to be false.
It is also an offense to injure or kill any person in connection with the commission or attempted commission of any of the previous offenses.
Under Article 6 of SUA, a state can take measures to establish its jurisdiction over the aforementioned offences when the offence is committed:
(a) against or on board a ship flying the flag of the State at the time the offence is committed;
or
(b) in the territory of that State, including its territorial sea; or
(c) by a national of that State.
A State Party may also establish its jurisdiction over any such offence when:
(a) it is committed by a stateless person whose habitual residence is in that State;
(b) during its commission a national of that State is seized, threatened, injured or killed;
(c) it is committed in an attempt to compel that State to do or abstain from doing any act.
Thus, under SUA, India can claim a positive principle of International law permitting the exercise of jurisdiction by Indian courts.
An interesting and exceedingly similar case to that of the Enrica Lexie has previously been adjudicated by the Permanent Court of International Justice in the case of the SS Lotus, France v. Turkey.i In this case, a French Steamer, the Lotus, collided with a Turkish steamer, the Boz-Kourt in the high seas. As a result of the collision, the Turkish vessel was lost along with 8 of her crew and passengers. Upon arrival of the French vessel in Constantinople (Istanbul), the French crew was arrested and criminal proceedings initiated by Turkish authorities. France adopted, by and large similar arguments to that taken by Italy in the present matter. Holding against the French vessel, the Court inter alia observed that:
(a) While jurisdiction cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention, it does not follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law.
(b) That the contention that a State could not punish offences committed abroad by a foreigner only by virtue of the nationality of the victim was baseless.
(c) That the courts of many countries, interpret criminal law in the sense that offences, committed from foreign territory, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially its effects, have taken place there.
(d) What occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its, effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that 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.
Note that the case of the SS Lotus can be differentiated from the Enrica Lexie incident in so far as the offence in the case of the Lotus was a collision and not murder / manslaughter. While the PCIJ did hold that there were no specific rules applicable in the case of a collision vis-à-vis any other offence, the position has been changed, only in this limited regard with the adoption of UNCLOS. In Article 97, UNCLOS provides that a flag state will have exclusive jurisdiction over an incident where a crew member of a ship is involved in a “collision or any other navigational incident on the high seas”. The SS Lotus case is however good law in so far as the general principles it lays down (only not with regard to collisions). In the case of the Enrica Lexie, it is clear the incident was not a collision or other navigational incident, but a shooting – thereby removing the incident from the purview of Article 97 of UNCLOS.
To conclude, in the case of the Enrica Lexie, as the incident could be said to have taken place in India, for the purposes of the IPC in as much as the effect of the shooting was felt on Indian territory and further as the SUA permits India to exercise jurisdiction, I believe that both India and Italy can exercise jurisdiction over the matter. As the marines are now in Indian custody, it is well within the rights of the Indian courts to adjudicate the dispute.
6.The Italian marines are being tried inter alia under Sections 300 r/w Section 302 of the IPC.
8. The Section also mandates Central Government sanction in such cases.
1010.Chhotalal Babur v. Emperor, (1912) 14 Bom LR 147
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