The return to India of two Italian marines charged with
the shooting death of two Indian fishermen off the Kerala coast has taken the
hard edge off the legal-diplomatic war which broke out between Rome and New
Delhi in the aftermath of the February 15, 2012 incident. But the questions thrown up by the
case will continue to be furiously debated.
The marines were part of
an Italian
Navy Vessel Protection Detachment on board the oil tanker
Enrica
Lexie and
the shooting occurred within India’s Contiguous Zone — which extends 24 nautical
miles (NM) into the sea from the coastline. Italy, which contested
India’s right to put the men on trial, decided earlier this month to violate
the assurance its ambassador provided the Indian Supreme Court by declaring
that the marines who had been allowed to return home temporarily to vote would
not be sent back to India. On Thursday, however, the Italian government wisely
reversed itself.
The case has visited the
Supreme Court at least four times since May 2012, and has had both criminal and
civil dimensions before the Kerala High Court. The criminal proceedings have revolved
around the jurisdiction of the Indian courts to try the case and I will examine
this issue primarily from the vantage point of the Indian law against the
background of international law.
Contiguous Zone Jurisdiction
India’s legal claim to
jurisdiction over its maritime zones flows from Article
297 of the Constitution of India. It is amazing to note
that Article 297 does not (and did never in the past, whether in 1950 or after
the amendment of 1963) specifically refer to the “Contiguous Zone” of India,
but to “other maritime zones.” This provision, as it stands today, was
substituted by the 40th Amendment Act, 1976, in order to take advantage of the
third U.N. Conference on the Law of the Sea,
and was immediately followed by the adoption by Parliament of the Territorial Waters,
Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976
(the Maritime Zones Act,
for short). This was probably encouraged by the development of new concepts
like the EEZ and overwhelming state practice in favour of a 12 nautical mile
(NM) territorial sea. Needless to say, the 1982 Convention on the Law of the
Sea stands out for its functionalist approach to law of the sea issues,
particularly to issues of state jurisdiction in diverse maritime zones.
Section 5 of the
Maritime Zones Act establishes a 24 NM Contiguous Zone of India and empowers
the Central Government to “exercise such powers and
take such 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.”
It also empowers the government to extend to the Contiguous Zone any law in
respect of (a) and (b). There is evidently no reference to extension of coastal
criminal jurisdiction to the Contiguous Zone.
However, quite
interestingly, Section 7 of the Act establishes the Exclusive Economic Zone of
India as “an area beyond and adjacent to the territorial waters,” and the limit
of such zone is 200 nautical miles, in other words encompassing the Contiguous
Zone. In the result, the Section further provides that “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 of 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.” This omnibus clause obviously
empowers the government to extend criminal jurisdiction to EEZ, at least for
the reason that with increasing economic and mining activities in EEZ, there is
bound to be scope for criminal jurisdiction. However, application of various
laws into the coastal zones (other than the Territorial Waters) is still found
wanting as highlighted by the case of Larson and Toubro v. Commissioner Commercial
Taxes (in
which the Gujarat High Court found in 2011 that the Central Sales Tax Act had
not been extended to the Continental Shelf and that therefore Larson and Toubro
were not liable to pay tax on goods dispatched to the Bombay High. This
certainly resulted in a heavy revenue loss to the Central Government).
Would such an extension
of criminal jurisdiction to EEZ be contrary to the U.N. Law of the Sea
Convention, 1982? I would submit that it would not be, for two reasons. One,
Article 97 (1) of the Convention provides:
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.
This provision was
enacted for the first time in Article 11(1) of 1958 Convention on the High Seas
in order to overrule a decision of the Permanent Court of International Justice
in the S S Lotus case(1927) which involved a
collision of a French vessel with a Turkish one on the high seas resulting in
the sinking of the latter, and in which Turkey exercised penal jurisdiction on
both the French and Turkish officers on watch over their respective vessels.
Evidently, Article 97(1) of the 1982 convention cannot apply to any situation
of crime other than those related to “collision or any other incident of
navigation.” Firing at and killing of two Indian fishermen can by no stretch of
imagination be relatable to “collision or any other incident of navigation.” In
other words, Article 97(1) of the Law of the Sea Convention, 1982 has no
application to the case of Enrica Lexie, given its legislative history.
Two, since the evolution
of the 1958 Flag State rule, many changes have taken place in respect of
application of coastal state laws to the adjacent maritime zones. Flags of
convenience have made it difficult for the so-called flag state to exercise
jurisdiction over the foreign owned ships in its registry. There has been a
sudden spurt of leisure cruise liners, some vessels carrying even 2,500 to
3,000 people of different nationalities, usually sailing on routes not far away
from the coasts. Further, mining and other economic activities, including
erection of offshore platforms, have also increased by leaps and bounds. All
this points to the legitimate interest of the coastal state in crime prevention
and maintenance of law and order in the waters nearby, taking into account the
intense human activity in the area. There is an increasing number of countries
which have begun exercising criminal jurisdiction in extended coastal waters
under the protective principle (protection of the legal and economic systems of
the coastal state) or under the principle of passive personality (protection of
nationals or property of the coastal state being victims/target of crime from a
foreign vessel passing by). The Australian Criminal Code Act 1995 (after the
2002 amendment) applies passive personality principle quite bluntly in favour
of Australian victims of crime, regardless of the place of commission of the
crime outside Australia. This reflected the Australian response to the Bali
bombing in which several Australians were victims. The U.S. Code and the French
Law have analogous provisions.
Article 245 (2) of the
Constitution of India permits extraterritorial application of laws, if a
reasonable nexus is established between the subject matter of the law and the
Indian coast. Thus for instance Article 6(2) of the Convention for the
Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988,
permits a state to claim jurisdiction if its national is a victim, or the state
itself is a target of an unlawful act under the convention. Incorporating the
convention into national law, the Indian Parliament enacted the Suppression of
Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on
Continental Shelf Act, 2002 conferring on the Designated Court jurisdiction if
the target of the crime is an Indian vessel or a platform on the Indian
Continental Shelf. Similarly, the Weapons of Mass Destruction and Their
Delivery Systems (Prohibition of Unlawful Acts) Act, 2005 has application to
the whole of India, including its EEZ.
It may be noted that
under Section 14 of the Coast Guards Act, 1978 the Coast Guard has jurisdiction
over all maritime zones of India. Additionally, Section 4 of the Indian Penal
Code, 1860 provides for extra-territorial application of the code to “any
Indian citizen in any place without and beyond India” and to “any person on any
ship or aircraft registered in India wherever it may be.” However, this
reflects the nationality principle of exercise of State jurisdiction under
international law, rather than passive personality or protective principle.
No
need for special court
In the Italian marines’
case, the Supreme Court suggested creation of a special court. I submit that
this is not necessary. Acting under the Maritime Zones Act, the Government of
India should extend the criminal law of the land to the entire EEZ to all cases
in which:
(1) the victim is an
Indian national,
(2) the consequences of
the crime extend to the coastal State;
(3) the crime is of a
kind to disturb the peace of the country or the good order of the maritime
zones of India;
(4) the assistance of
the local authorities has been requested by the master of the ship or by a
diplomatic agent or consular officer of the flag State; or
(5) such measures are
necessary for the enforcement of other laws of India such as those relating to
suppression of illicit traffic in narcotic drugs or psychotropic substances,
organised crimes, and WMD Act.
Nos (2) to (5) are
analogous to the provisions of Article 27 of the U.N. Law of the Sea Convention
1982 relating to the Territorial Sea. The notification should also embody a
provision enabling designation of Sessions Courts to take cognisance of
offences. Perhaps, the High Courts may be enabled to designate appropriate
lower courts for the purpose. Since the Supreme Court ruling in the M.V.
Elizabeth case(1992), it is now well settled that all High Courts have
legitimate Admiralty Jurisdiction under the Constitution of India.
(
V.
S. MANI : The author is a former Professor,
International Legal Studies, Jawaharlal Nehru University, New Delhi)
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