International Journal of Law and Policy Review (IJLPR)
COMMENT
JURISDICTION AND IMMUNITY ISSUE IN THE ENRICA LEXIE INCIDENT (REPUBLIC OF ITALY VS. UNION OF INDIA)1 Vaibhav Ravi Malimath2 M.V. Enrica Lexie, An Italian Merchant Ship allegedly mistook an Indian Fishing Vessel to be a pirate Vessel, and fired at it resulting in the death of two Indian Citizens in February 2012. The event took place about 20.5 Nautical Miles from the Indian Sea Coast (Kerala). The Italian marines, who shot the Indians were arrested, and have contested the right of Indian Laws to have Jurisdiction in the issue and their immunity under International laws. The Supreme Court of India held that the Central Government has jurisdiction as the incident was in the contiguous zone although outside the Terrestrial Waters. The Indian Penal Codes extend to the Exclusive Economic Zone, of which the Contiguous zone is part of. 3 The first issue in this incident is whether Kerala Government or the Central Government had the jurisdiction to try the case. The incident took place at a distance of 20.5 Nautical Miles from the coast of Kerala. Thus the incident did not occur within the Territorial waters of Kerala State. However it was in the Contiguous Zone. Contiguous zone is an area beyond and adjacent to the territorial waters and the limit of the contiguous zone is the line every point of which is at a distance of twenty-four nautical miles from the nearest point of the baseline. 4 Therefore the incident occurred in the Contiguous Zone, over which the Central Government has jurisdiction over, as per UNCLOS, 1982 also5. The Union of India of India had extended the application of the Indian Penal Code and the Code of Criminal Procedure to the Contiguous Zone, this 1
Republic of Italy vs. Union of India (2013) 4 SCC 721 Second year law student, Jindal Global Law School, Sonipat, India. Email:
[email protected] 3 Id. 4 Section 5(1) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 5 Supra note 1 2
518
Vol. 4 No.2 July 2015
ISSN (O): 2278-3156
Malimath / Jurisdiction and Immunity Issue in the Enrica Lexie Incident (Republic of Italy vs. Union of India)
entitled the Union of India to take cognizance, investigate and prosecute the accused, who has committed any violation of Indian laws in the Contiguous Zone. The important issue was the applicability of section 2 of the Indian Penal Code, which deals with the offences committed in the territory, to the contiguous zone, by way of Notification SO 671(E) of 27th August 1981. The court concluded that under domestic laws and public international law, India is entitled to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of the territorial waters is measured. Further held that the firing on the Indian shipping vessel has occurred within the contiguous zone, thus the Union of India is entitled to prosecute the two Italian marines under the Indian criminal justice system. The next issue is whether India has the jurisdiction to punish the Marines? Section 6 and 7 of the Maritime Zones Act, 1976, provides that India is entitled under Domestic Law and International law to exercise its rights of sovereignty up to 24 Nautical Miles from the coast line, but can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes. Therefore India is entitled to prosecute the Marines. 6 However, there was no application of the India’s contiguous zone claimed under section 5(4) of the Act. It gives power to the Central Government to exercise such powers and take measures with respect to the security of India, and immigrations sanitation, customs and other fiscal matters. 7 This empowers the applicability of the Indian Penal Code on this case. But that has not been discussed in the judgement. The above section 6, is however subject to Article 100 of UNCLOS, 1987.8 Article 100 provides that all states shall cooperate to the fullest extent possible in the repression of piracy on the high seas or any other place outside the jurisdiction of any State. Moreover, Enrica Lexie was on an antipiracy mission. Since the above was not proved, the court did not take the section into consideration.9 It is also important to note the extent of the Exclusive Economic Zone, the Territorial Waters, and Contiguous Zones to entitle India the jurisdiction. The Maritime Zones, 1976 10 The Exclusive Economic Zones is the area extending up to 200 Nautical Miles from the coast. Thus the Contiguous Zones is within the Economic Zone. Hence the law governing the 6
Supra note 1 The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 8 United Nations Conventions on the Laws of the Sea, 1982 9 Supra note 1 10 Supra Note 1 7
ISSN (O): 2278-3156
Vol. 4 No. 2 July 2015
519
International Journal of Law and Policy Review (IJLPR)
Contiguous Zone will be in similar to that of the Economic Zones, as defined under Section 5 of the same act. Moreover the UNCLOS provision is similar to that of the Maritime Zone Act. Contiguous Zones extend up to 25 Nautical miles from the territorial zone. The Maritime Zone Act and the UNCLOS is similar in this aspect. Moreover, Article 56 and 57 of the UNCLOS describe the rights, jurisdiction and duties of the coastal State in the Economic Zones extending up to 20 Nautical miles from the territorial zone. This is also in similar to the Maritime Zone Act.11 Another question is whether the laws of India or Italy will prevail. In the realm of Public International Law, in an area in which a country exercises sovereignty, its laws will prevail over other laws in case of a conflict between the two. In addition to that, a state will have full sovereign rights over an area, which stops short of complete sovereignty. No country can exercise their sovereignty in the Economic Zone. Since India is a signatory to the provisions on the UNCLOS, both countries will be subject to Article of the UNCLOS, where in the case of every marine casualty or incident of navigation on the high seas, which has involved the loss of life or serious injury, both states should co-operate in the conduct of the inquiry held by that state which has faced the loss of life.12 Apart from the above conventions, the Constitution of India, under Article 297(3) has specified that the Exclusive Economic Zone shall lie within the control of the Union of India. This means that the sovereignty of the Union extends to the limit specified above, which is an established principal of both constitutional theory and International Law. Moreover, with the increasing commission of crimes beyond the residential borders of the offenders, States claim jurisdiction over, the offenders who are not physically present within, and the offences committed beyond the territory of the state whose legitimate interest are affected. This is done by various international law principles, such as the objective territorial claim, the nationality claim, the passive personality claim, the security claim, the universality claim and the like. Indian Laws apply to the Italian Marines. The courts have the authority to apply and enforce the laws of the country against the persons and things beyond its territory when legitimate interests are affected.13 Similarly, any act committed, irrespective of the nationality of the offender, committing
11
Supra note 1 Supra note 1 13 Supra note 1 12
520
Vol. 4 No.2 July 2015
ISSN (O): 2278-3156
Malimath / Jurisdiction and Immunity Issue in the Enrica Lexie Incident (Republic of Italy vs. Union of India)
acts, within the territory of India, will be tried under Indian Jurisdiction; as such offences are against the legitimate interests of the country.14 The Italians claimed that the state cannot start legal proceedings as they were protected under sovereign functional immunity, as they are part of the Italian navy and following instructions of the Italy. The matter did not matter as there was no agreement in force between India and Italy on these types of incidents, moreover, there it is not yet settled whether military personnel are protected under sovereign immunity. Sovereign immunity is the rule of International law that a sovereign state should not be impeded in the courts of another sovereign state against its will. 15 Article 31 of the Vienna Convention on Diplomatic Relations, 1961, states that a diplomatic agent shall enjoy immunity from the criminal jurisprudence of the receiving state. But the central government held that Italy could have invoked this principle, but since it has filed a writ in the Supreme Court, it was considered as a waiver, though it was never expressed. 16 Functional Immunity protects a State’s agents for any official acts, for the acts done in other states. The practice of affording immunity appears to have decreased after World War 2. 17 It does not exist anymore. Moreover such a practice was absent between India and Italy. The Indian Domestic laws have to recognize that foreign states cannot be sued and enjoy immunity. The act of shooting should not be called as public service, as they were acting on behalf of the owner of the ship, and on board a commercial ship, not a warship. The marines therefore could not enjoy immunity. The Status of Forces Agreement is an agreement granting immunity from jurisdiction to foreign military soldiers. 18 The Government claimed that there was no such agreement. The only reason for applying this agreement cannot be that the marines acted for the Italian navy. The acts of the marines are also not covered by the principles on which immunity could be granted by States. Immunity Ratione Resonae (Personal Immunity) is granted to official acts by a State official. But we should consider whether the marines on board the ship were State officials. State officials are determined by the laws of the 14
Harishankar K.S Jurisdictional and Immunity Issues in the Story of Enrica Lexie: A case of Shoot and Scoot turns Around, 18th May 2015,http://www.ejiltalk.org/jurisdictional-andimmunity-issues-in-the-story-of-enrica-lexie-a-case-of-shoot-scoot-turns-around/, 18th May 2015 15 Supra 16 Supra note 11 17 Joseph William Davids, India vs. Italy: The Indian Supreme Court Decides The New international law, 5th May 2015https://thenewinternationallaw.wordpress.com/tag/enricalexie/ 5th May 2015 18 Supra
ISSN (O): 2278-3156
Vol. 4 No. 2 July 2015
521
International Journal of Law and Policy Review (IJLPR)
foreign country and not by any international law. The marines did qualify as law enforcement officers by the Italian law. 19 They were performing a public task, i.e. the protection of the trade on the sea against pirate activities, which is protected by Article 300 of the UNCLOS, which puts a duty on States to co-operate to the fullest extent possible in the repression of piracy on the high seas. 20 They are contributing for the protection of the International community as a whole, not just one particular country. But the present matter has not been addressed by the International community in a detailed manner; a convention is required to declare what acts are protected by immunity. The Indian State thus tried the marines as they were legitimately infringing upon the rights of its citizens. India had acceded to ‘The Convention of The Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002’. It is a multilateral treaty by which states prohibit and punish the behaviour of the offender for any offence committed in the territorial waters. Under the Convention, a person will be punished with death, if he causes death to any person abroad a ship, fixed platform, cargo of a ship, etc21. However, India did not invoke the Convention, and decided to conduct the trial under normal criminal laws. The Italian Marines performed the act within the Contiguous Zone, i.e. 20.5 Nautical Miles. The Indian Court could claim jurisdiction over the matter because the Domestic Laws extend to the Contiguous zone. Moreover the state which has faced a loss of life has the jurisdiction over the case. The Italian marines claimed immunity for their acts. But they were not granted such immunity as the issue was not addressed in a detailed manner by the international community. This meant that the Italians were claiming an immunity not recognized, as only immunity to high rank officials is recognized. The Indian state also never recognized the marines as state officials, as they were on-board a commercial vessel and performed tasks which were not state acts. Moreover the main reason is that their acts infringed upon the legitimate rights of the Indian Citizens. Thus the Marines never enjoyed immunity, and were tried by Indian laws.
19
Natalino Ronzitti , The Enrica Lexie Incident: Law of the Sea and Immunity of State Officials Issues, 18th May 2015, http://www.sidi-isil.org/wp-content/ uploads /2012 /05 /01 _Ronzitti.pdf, 5th May2015 20 Supra 21 The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 http://www.nia.gov.in/acts/The_Suppression_ of_ Unlawful_Acts_Against_Safety_of_Maritime_Navigation_Act_2002.pdf 2nd April 2014
522
Vol. 4 No.2 July 2015
ISSN (O): 2278-3156
