The Enrica Lexie Incident and International Law: Some Preliminary Thoughts

Posted on February 27, 2012

I am sure all are aware of the recent turn of events involving the Italian shipM/V Enrica Lexie off the Indian coast of Kerala. In this post, I will try to present a reductionist perspective of the problem and comment upon the relative strengths of India and Italys arguments, the eventual goal being to parse through the technical details that have been sporadically filtering through the media and elucidate the the basic legal framework which can then be applied to the facts as and when they become clearer. Already, the incident has created great interest amongst the Indian and Italian press and media. Others who have chipped in with their opinions include Meghnad Desai (comparing the Enrica Lexie incident to the one involving Indian children being taken into care by Norway, he asks: [b]ut the two disputes do pose a paradox in justice. If we apply domestic law, the Italian naval personnel are to be tried in a Kerala court. But then are the children of the Bhattacharyas legitimately held by the Norwegian welfare agencies?) and K. R. A. Narasiah (arguing that Italy is wrong on sea law).

MV Enrica Lexie off Kochi Source: Aijaz Rahi/Associated Press

Conflicting Factual Narratives Although the exact factual circumstances still remain clouded, a broad overview of the conflicting narratives by India and Italy is perhaps still in order. India claims that the fishing boat, St. Antony, carrying 11 unarmed crew reported being fired upon at 2150 hrs, 2 or 3 nautical miles off the coast of Kollam in Kerala. Of the 11 fishermen, 9 were sleeping and the two awake were shot. In total, India claims that 20 shots were fired by the two Italian marines. Moreover, India claims that no warning shots were fired by the marines, who took the fishing boat to be a pirate vessel. Italy, on the other hand, claims that at 1600 hrs, while navigating 33 nautical miles off the Indian coast, a twelve meters boat with six armed men was spotted approaching the Italian tanker. It kept nearing even after the soldiers showed their guns at which point they opened fire in the air and in the water and the boat turned away without any one being hit. Enrica Lexie immediately reported the incident to authorities in Rome. In addition, Italy also claims that the ship was tricked into coming to Cochin Port by a message from the Indian Coast Guard by reporting that they were holding a boat with arms on board,

prospecting it could have been the one involved in the incident of the afternoon and inviting the Italian crew and marines to give their statements (see here, for example). For our purposes, I would only like to emphasize the different accounts of the position of the ship during the incident: Italy says that satellite data confirms that the ship was 33 nautical miles of the Indian coast, whereas India says it was 2-3 nautical miles off the Indian coast. Current Situation The situation, at the time of writing, is that the marines have been taken into custody by the local Indian police and have been sent to a 14 day judicial remand. A first information report has been filed against the Italian crew, and the Indian police have been on board the ship to gather evidence. The two marines have been charged with murder under the Indian Penal Code (IPC). Currently, the ship is docked in Kochi (apparently, parking space there seems quite expensive by even the most expensive car-park standards ~ 4 mil. INR). The Italians have reportedly also filed a habeas corpus petition before the Kerala High Court. Italian diplomats have been arriving in India on the clock, and have met the arrested marines. A senior Italian minister is expected to arrive in Delhi this week. Meanwhile, back in Italy, the authorities have started their own national investigations into the incident. Thus, the judicial processes have been set into motion in both countries, with India having a tangible advantage because of its custody of the marines. Legal Disagreement

Getting into the legal issues, the disagreement between the two state seems to be centered around two issues: jurisdiction; and, diplomatic immunity. In this post, I hope to address the issue of jurisdiction, since the disagreement there concerns whether the Indian courts even have the power to try this case. This, therefore, is a preliminary issue that requires to be addressed first. Jurisdiction under International Law On the role and importance of jurisdiction (or the authority to decide on an issue) under international law of the seas, Natale Klien provides a concise explanation: Law enforcement powers are essential to enable states to respond to maritime security threats. Although this point is simple enough in itself, the laws according states jurisdiction are complex because of the different rights and obligations recognized in the various maritime zones. The regulation of activities at sea is dependent on what authority states have in any given maritime area or over any particular vessel or installation or structure located at sea. The ability of a state to undertake law enforcement not only varies because of the different rights and duties existing in the different maritime zones, but also according to what particular threat to maritime security is being addressed. While there is a general interest in upholding order at sea, the accepted responses to achieve order have been countered by other interests, especially the importance of territorial integrity and the

corollary of maintaining exclusive rights over vessels that are flagged to the state. This balancing act is constantly at stake in seeking to prevent and respond to maritime security threats. (Natalie Klein, Maritime Security and the Law of the Sea (OUP, 2011), p. 62) She goes on to explain the nuanced picture of jurisdiction painted by International law: prescriptive jurisdiction refers to refers to the power to adopt legislation and other rules; and, enforcement jurisdiction refers to the power to give effect to those rules through police and/or judicial action. Moreover: States are entitled to exercise jurisdiction on the basis of different connections that a particular activity might have with them. The bases of criminal jurisdiction most commonly recognized are territorial; nationality; passive personality; universal; and protective. Territorial jurisdiction entitles a state to regulate persons and activities within its territory. Nationality jurisdiction allows states to regulate the activities of persons who have the nationality of that state. On the basis of passive personality, a state may exercise criminal jurisdiction over a person who has committed offences that are harmful to nationals of that state. Universal jurisdiction refers to jurisdiction over particular activities that are considered so heinous (notably, piracy and war crimes) that all states may exercise jurisdiction over the perpetrators of those crimes irrespective of any other link a state may or (p. 63 ) may not have with the acts in question. Protective jurisdiction entitles states to exercise jurisdiction over activities considered prejudicial to the security of the state. As may be readily perceived, each of these bases of

jurisdiction may be brought to bear in addressing maritime security threats, especially territorial, universal, and protective jurisdiction. A state must lawfully exercise prescriptive jurisdiction in order for the possible exercise of enforcement jurisdiction to arise. (FN omitted, emphasis supplied). Can Indian Courts Try the Accused Italian Marines? With this brief excursion into the concept of jurisdiction under international law, let us now turn back to whether international law provides Indian courts the jurisdiction to try the Italian marines for their alleged shooting of Indian fishermen. For our purposes, the relevant treaty is the UN Convention on the Law of the Seas 1982 (UNCLOS), to which India and Italy are parties, and the relevant Indian legislation isThe Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976. The UNCLOS and the 1976 Act establish the following regime for the coastal states (here, Indias) jurisdiction: Territorial Sea: breadth of of up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the UNCLOS. (Art. 3 UNCLOS) The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. (Art. 2 UNCLOS). For our purposes, the 1976 Indian Act in Section 3 provides that [t]he sovereignty of India

extends and has always extended to the territorial waters of India and to the seabed and subsoil underlying, and the air space over such waters. Thus, the Indian Penal Code, under which the marines are charged, is an exercise of prescriptive territorial jurisdiction. In other words, India can exercise both prescriptive and enforcement jurisdiction in the territorial sea on the issue of security (taking the killing of fishermen to be this issue). Beyond the territorial sea lies the contiguous zone, extending not beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. (Art 33, UNCLOS) The 1976 Indian Act also defines the contiguous zone as such. This is an interesting region because it marks a divergence in the prescriptive jurisdiction under the UNCLOS and the 1976 Indian Act. Art. 33 of the UNCLOS provides in part that a coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; and, (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. The 1976 Indian Act adds one more item to the list of areas coastal states can exercise their prescriptive jurisdiction in by legislating rules: the security of India (Art. 5(4) 1976 Act). This is not a conflict, for the UNCLOS only states that a coastal State may legislate to regulate the two areas, and the Indian Legislation goes beyond and adds one to the list. Moreover, there is considerable state practice in support of states exercise prescriptive jurisdiction for security matters in the contiguous zone (see table on p.14 here, and Alan

Vaughan Lowe and R. R. Churchill On the Law of the Sea, pp.116118 here). Interestingly, under the 1976 Indian Act, unlike for territorial waters, India does not have complete sovereignty over contiguous zones. Instead, under Section 5(4), the Central Government may exercise such powers and take measures in or in relation to the contiguous zone as it may consider necessary with respect to: (a) the security of India; and (b) immigration, sanitation, customs and other fiscal matters. For example, one exercise of prescriptive jurisdiction in the contiguous zone is Section 2(28) of the Indian Customs Act, which defines Indian customs waters as the contiguous zone, within which Indian customs authorities have the power to arrest people (104), stop and inspect any ship (106), and open fire if a ship fails to stop (115(1)(c). Contrary to this, to my knowledge, the Parliament has not legislated on the subject of security in the contiguous zone. In this regard, the Indian Penal Code does not say anything about its extension over contiguous zone, whereas the Central Government has the explicit authority to extend its application over this region (Section 5(4)(b) 1976 Act). Thus, for the purposes of Indian courts criminal jurisdiction, this would mean the exercise of extraterritorial jurisdiction. Exclusive Economic Zone: The EEZ concept is an innovation of the UNCLOS at the international level. It is reflected in the 1976 Indian Act, as well, and extends to 200 nautical miles from the appropriate baseline. Within the EEZ, states have the prescriptive jurisdiction to regulate

exploitation of economic resources, scientific research, marine environment and artificial structures. This too, then would imply the exercise of extraterritorial jurisdiction by Indian courts. This then establishes the importance of the exact location of the incident. For if the shooting took place 2-3 nautical miles from the coast, as India claims, it would be within the territorial waters, and therefore Indian courts could exercise their territorial jurisdiction under the IPC and Code of Criminal Procedure (Cr. PC). If, however, the incident occurred beyond 12 nautical miles from the baseline, take the 33 nautical miles which Italy claims for example, Indian courts would be exercising their extraterritorial jurisdiction under the IPC and the Cr. PC. As noted in the quote from Klein above, extraterritorial jurisdiction may be exercised on several basis. Indian law, that is, the IPC and the Cr.PC, allows the exercise of extraterritorial jurisdiction on the basis of nationality. Thus, Section 4 of the IPC provides, in part: Extension of Code to extra-territorial offences.The provisions of this Code apply also to any offence committed by (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be. If the incident occurred beyond 12 nautical miles Indian courts can only have jurisdiction over offenses committed by a citizen of India, or a ship registered in India. Since, in the present case, the accused are marines of

Italian nationality and the ship is also registered in Italy (contrary to what Meghnad Desai seems to think, see this), Indian courts do not have the extraterritorial jurisdiction to try the marines. This could be a basis for the Italian writ petition in the Kerala High Court. In fact, in a prior case (Raymund Gencianeo v.State of Kerala, 2004 Cri. LJ 2296), the Kerala High Court has held that: Since the case of the prosecution is that the occurrence took place when the ship was 850 miles away from seashore, even if that 850 miles is taken as nautical miles or land miles, it is clear that the offence is alleged to have been committed by a foreign national in foreign vessel outside the territory of India. The Indian Courts have no jurisdiction to try an offence which is alleged to have been committed by a foreign national in a foreign vessel outside the territory of India and hence the proceedings in the case are liable to be quashed. (para. 6) The facts in that particular case involved a Philippine national, who was a crewmember of a Japanese vessel, being prosecuted for the offence punishable under Section 307 of the IPC, alleging that he attempted to commit murder of the Captain and Chief Officer of the ship while he was on board the ship, 850 miles away from the Kochi coast. The accused was arrested on 29.11.2002 and placed in judicial custody. While the case against him was pending before the First Additional Assistant Sessions Judge, Ernakulam, he sought to quash the proceedings by contending that the courts in India have no jurisdiction to try the case since the allegation is that a foreign national committed the

offence in a foreign vessel while the vessel was outside the territory of India. Returning to the present, nobody is claiming that the ship was 850 miles off the coast of India. Nevertheless, this judgment does seem to suggest that Indian courts can only exercise criminal jurisdiction over foreign nationals on foreign ships if they are within the territorial waters of India (12 nautical miles). In sum, the location of the shooting incident is of utmost importance. If it is not within 12 nautical miles, going by the above account, the trial court in Cochin may not have jurisdiction over the alleged offense. Of course, this is qualified by the presence of any government regulation extending the IPC over the EEZ something which to my knowledge doesnt exist. Assessing Indian Reactions While researching on the facts for this post I came across an interesting Indian reaction on the jurisdiction issue in The Hindu: But India points to Section 4 of the Indian Penal Code, which says any crime committed against an Indian or on an Indian vessel, wherever it may be, can be tried in India. So there is extra-territorial application of both Indian and Italian laws. We understand that but as representatives of India, we will go by the legal process here. There are differences with Italy on the facts,

procedure and processes, but we are willing to engage with them. If they so desire, we will provide consular access to the two marines detained by the Kerala police, official sources said. Officials also admitted that both countries were facing an issue of this kind for the first time. We are trying to come to grips with, and see how to go about, it. They felt that whether or not the ship was in Indias exclusive economic zone (EEZ) shouldnt be made an issue. Italy and India have the same clauses pertaining to extra-territorial jurisdiction. The ship was over 5,000 km away from the Italian coast. Dont make an issue out of the EEZ aspect. However, as we have seen above Section 4 of the IPC does not say that any crime committed against an Indian or on an Indian vessel, wherever it may be, can be tried in India. Instead, it says that crimes committed by Indian nationals, or by foreign nationals on vessels registered in India can be tried in India. Moreover, the last part of the above quote makes little sense. The fact that the incident occurred in the EEZ is of prime importance. Just because the ship was closer to India than Italy does not give India the jurisdiction to try the marines. Indeed, if the incident did occur in the EEZ, Indian courts may well not have the power to try the case.

What next? Considering the worst case scenario for India, that the incident did occur beyond 12 nautical miles and outside Indias territorial waters. If India sticks to its stand to prosecute the marines under Indian law and in Indian courts (the Indian Defense Minister recently suggested this), Italy could possibly take up the matter on the International level, by submitting a dispute to the International Tribunal for the Law of the Sea, or some other international court or tribunal by consent. If the matter does go to an international court, it may be useful to recall what the ITLOS has said on a similar issue in the past in the M/V Saiga (No. 2) case: The ITLOS decision in M/V Saiga (No 2) provides some indication that states may not seek to enforce laws that are not specifically related to coastal state rights in the EEZ. In that case, the M/V Saiga, an oil tanker sailing under the flag of Saint Vincent and the Grenadines, entered the EEZ of Guinea to supply fuel to three fishing vessels. Guinean customs patrol boats arrested the vessel outside of Guineas EEZ and subsequently detained the vessel and crew members. Guinea asserted that the arrest of the M/V Saiga had been executed following a hot pursuit motivated by a violation of its customs laws in the contiguous zone and customs radius of Guinea. Under Guineas Customs Code, the customs radius extended 250 kilometres from its coast. Saint Vincent and the Grenadines maintained that Guinea was not entitled to extend its customs laws to the EEZ and that the Guinean action had interfered with the right to exercise the freedom of navigation

as the supply of fuel oil fell within other internationally lawful uses of the sea related to the freedom of navigation. The Tribunal determined that the application of customs laws to parts of the EEZ was contrary to UNCLOS. From this case, it seems that coastal states enforcement powers in the EEZ are therefore not likely to be recognized as lawful beyond those relating to the activities over which coastal states are specifically attributed jurisdiction or sovereign rights. (Klein, p. 89; FN omitted) After all this legal analysis, if theres any certainty, it is on the importance of the exact location where the Italian marines on board MV Enrica Lexie allegedly shot the Indian fishermen. Once that is ascertained, however, a definitive legal answer on whether Indian courts have the jurisdiction over the alleged crime can be given. All this, of course, if I am not overlooking an Indian legislation that extends the criminal jurisdiction of Indian courts beyond the 12 nautical miles feel free to weigh in.