Case Comment: The Italian Marines Case
By: Ritwik Tyagi
Tags: Italy, Analysis, India, Case Comments, Marine

Introduction and Facts

The case of Republic of Italy v. Union of India[1] was one that managed to grab eyeballs of the legal fraternity not just in the two nations embroiled in the controversy, but across the entire world. The questions of jurisdiction thrown up by this case dazzled international law scholars and sparked a diplomatic fall-out between India and Italy. Also known as the Enrica Lexie case, this dispute involved several legal issues such as that of the law of the seas, territorial jurisdiction, sovereign immunity and also of human rights. The most probable reason for the case being so important is that it touched upon a very wide range of laws, right from domestic criminal laws to international treaties, and then proceeded to put a question over the applicability of those very laws. Let us first consider the facts of this case in brief.

Taking cognisance of the fact that incidents of piracy on the High Seas had seen a drastic increase, the Republic of Italy enacted a law that aimed to protect Italian ships from piracy and allow freedom of navigation to its merchant ships. By this enactment, contingents of the Italian Navy could be deployed on vessels carrying the Italian flag. In pursuance of this provision, Massimiliano Latorre, Salvatore Girone and four others, were stationed aboard MV Enrica Lexie to protect it in its journey. Heading for Djibouti, the vessel came across an Indian fishing boat, St. Antony, about twenty nautical miles from the Indian Coast off the State of Kerala. A confrontation ensued after the Italians mistook St. Antony for a pirate vessel and two Indian fishermen were killed by firing from Enrica Lexie. The Italian vessel returned to the Cochin port upon receiving a message to assist in the enquiry into the incident from the Maritime Rescue Coordination Centre, Mumbai.

The two Italian marines were arrested on 19th February, 2012. A writ petition, under Article 226, was filed in the Kerala High Court by the marines wherein they challenged the authority of the State of Kerala and the police to register a FIR and apprehend them. They prayed for the quashing of the FIR and also sought a declaration from the Court that their arrests were void in the eyes of law as there was no valid jurisdiction for detaining and instituting proceedings against them. The Republic of Italy, claiming sovereign and functional immunity for the marines, asserted that the actions had been carried out in an official capacity and that Italy reserved exclusive jurisdiction to try the offences.

While the judgement from the Kerala High Court was still pending, the marines decided to approach the Supreme Court of India under Article 32 of the Constitution. They prayed for the following reliefs in their petition before the Court:

A declaration that any action against the marines under any Indian law, “would be illegal and ultra vires and violative of Articles 14 and 21 of the Constitution of India;”

A declaration that the continued detention of Massimiliano Latorre and Salvatore Girone by the State of Kerala was “illegal and ultra vires being violative of the principles of sovereign immunity and also violative of Article 14 and 21 of the Constitution of India;”

A writ of mandamus directing the Union of India to secure the custody of the two marines and hand them over to the Republic of Italy.

Subsequently, the Kerala Police filed a chargesheet against the marines under Section(s) 302, 307 and 427, read with Section 34, of the Indian Penal Code and Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 [SUA Act]. The High Court dismissed the petition of the marines on the following two grounds: first, that the IPC had been extended to the Exclusive Economic Zone and the territorial jurisdiction of the State of Kerala was not limited to 12 nautical miles only; second, that under the provisions of the SUA Act, the State of Kerala had jurisdiction up to 200 nautical miles from the Indian coast, falling within the Exclusive Economic Zone of India.

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Contentions and Arguments Advanced

The Scheme of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, (or the Maritime Zones Act, 1976) provides for the extent of jurisdiction of the Central Government over the respective Maritime Zones — the “Territorial Waters”, the “Contiguous Zones” and the “Exclusive Economic Zones”, which is in consonance with the United Nations Convention on the Law of the Sea (UNCLOS). Territorial Waters extend to such a line on which every point is at an equal distance of twelve nautical miles from the nearest point of the baseline[2]. Similarly, Contiguous Zones extend up to a distance of twenty-four nautical miles from the nearest point of the baseline[3]. According to Section 7, the Exclusive Economic Zones extend to a distance of two-hundred nautical miles from the nearest point of the baseline[4].

The Republic of Italy

Italy made the case that the settlement of international disputes must be between two sovereign governments and the sub-units of a federal structure, i.e., State Governments, cannot be allowed to participate in any proceedings involving sovereign acts of one nation against another. It was submitted therefore, that the detention of the marines by the State of Kerala was unlawful. Italy contended that since the Union of India had acquiesced to the State of Kerala’s unlawful action of arresting and detaining the marines, it had violated principles of customary international law. According to these principles, it is the sole prerogative of the Central Government to initiate proceedings against another sovereign power, and not of the State Governments.

Next, the counsel for Italy came to the issue of the extent of jurisdiction. It was submitted that the Territorial Waters can be used by foreign ships and that all foreign ships (other than warships) are entitled to a right of innocent passage, so long as such passage was innocent and not prejudicial to the peace, good order or security of India[5]. Further, it was put forth that provisions of the UNCLOS are similar in nature to those of the Maritime Zones Act, 1976, with respect to the extent of territorial waters and the right of innocent passage. According to Article 17, ships of all States enjoy the right of innocent passage through the territorial sea. Innocent passage[6] has been defined as “navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility.”

As the incident occurred at a distance of 20.5 nautical miles from the coast, Italy contended that it lay within the Contiguous Zone and the Exclusive Economic Zone and therefore, it cannot be claimed that the incident occurred within the jurisdiction of the State of Kerala. It was urged that the incident took place in a zone where only the Central Government is entitled to exercise sovereign rights. Therefore, the arrest and detention of the marines by the State of Kerala was unlawful. Also, since the provisions of the Maritime Zones Act as well as the UNCLOS recognise the primacy of flag state jurisdiction, the Republic of Italy has the pre-emptive right to try the marines under the Italian law.

Republic of Italy further argued that Article 94 of UNCLOS casts certain duties on the flag State, one of which provides that each State shall cause an inquiry to be held into every incident of navigation on the High Seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State[7]. This is also reflected in Article 97 which mandates that in the event of an incident of navigation, involving the penal or disciplinary responsibility of the any 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[8].

The Union of India

India argued on two contentious issues, first, whether the Indian courts had jurisdiction to try the marines and second, whether the marines could claim sovereign immunity for their actions. It was submitted that the Contiguous Zone was also a part of the territory of India, in light of the Notification issued on 27th August, 1981, under Section 7(7) of the Maritime Zones Act,1976, by which the applicability of the Indian Penal Code and the Code of Criminal Procedure had been extended to the Contiguous Zone/Exclusive Economic Zone. According to the Union of India, the domestic law was not inconsistent with the International Law and even in international law, the Indian Courts had jurisdiction to try the marines.

Arguing on the question whether the State of Kerala had jurisdiction to try the marines, it was contended that since the incident had taken place in the Contiguous Zone off the coast of Kerala, the jurisdiction was derived from Section 183 of the Code of Criminal Procedure, which had been extended to the Exclusive Economic Zone by the 1981 Notification and relates to offences committed on voyages. When such an offence is committed, it could be inquired into or tried by a court through or into whose local jurisdiction the person or thing passed in the course of that voyage. It was put forth that the voyage contemplated under this provision is not the voyage of the Enrica Lexie, rather the voyage of St. Antony.

Union of India urged the Court that the issue at hand did not concern the right of passage through territorial waters. Rather, it was stressed, Article 56 of the UNCLOS provided exhaustive rights to the coastal state and if read along with Article 73 of the same Convention, the actions of arresting and detaining the marines would be justified as it is in the interest of protecting the fishermen of the country. The counsel argued that the conflict must be resolved on the basis of equity and therefore, it would be more convenient and appropriate to conduct the trials in India due to the location of the incident and the nature of evidence to be produced. Further, in response to the invocation of Article 97 of the UNCLOS, it was submitted that this provision dealt with the collision of shipping vessels and was unconnected with any crime involving homicide.

Decision of the Court

The Supreme Court determined two issues for consideration: (1) the jurisdiction of the Kerala State Police to investigate the incident of shooting of the two Indian fishermen on board their fishing vessel; (2) the question as to whether the Courts of the Republic of Italy or the Indian Courts have jurisdiction to try the accused.

At the outset, the Court discarded the contention of the State of Kerala and Union of India that the jurisdiction of the Kerala police extended over the Contiguous Zone as well. It was held that even if the provisions of the Indian Penal Code and the Code of Criminal Procedure Code were extended to the Contiguous Zone, it did not vest the State of Kerala with the powers to investigate and, thereafter, to try the offence. The extension entitled the Union of India to take cognisance of, investigate and prosecute persons who commit any infraction of the domestic laws within the Contiguous Zone. However, such a power is not vested with the State of Kerala.

The Court found that the provisions of the Maritime Zones Act, 1976 and the UNCLOS were in harmony and not in conflict with each other. The difference between the provisions of the two occurs in Article 97 of the Convention which relates to the jurisdiction in matters of collision or any other incident of navigation. The Court had to consider whether the incident of homicide could be regarded within the ambit of “incident of navigation” under Article 97. It was opined that the context in which the phrase has been used seems to indicate towards an accident occurring in the course of navigation, of which collision between two vessels is the principal incident. An incident of navigation as intended in the aforesaid Article cannot involve a criminal act. Therefore, the provisions of Article 97 could not be attracted in this case.

Relying upon the jurisprudence evolved in the S.S. Lotus case [France v. Turkey], the Court arrived at the conclusion that “the incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country.” However, the Court also noted that the State of Kerala had no jurisdiction to conduct an investigation into the incident and hence, directed the Union of India (in consultation with the CJI) to facilitate the setting-up of a special court to try the case in accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Code of Criminal Procedure and UNCLOS, 1982.

In a separate, but concurring, judgement, Justice Chelameshwar deliberated on the question as to what is the territory of India. He also opined that “the Parliament, undoubtedly, has the power to make and apply the law to persons, who are not citizens of India, committing acts, which constitute offences prescribed by the law of this country, irrespective of the fact whether such acts are committed within the territory of India or irrespective of the fact that the offender is corporeally present or not within the Indian territory at the time of the commission of the offence.[9]”

Conclusion

In 2015, Italy had instituted arbitration proceedings in the matter before the Permanent Court of Arbitration, seated at The Hague. Pending the arbitration, Italy also sought prescriptive measures from the International Tribunal for Law of the Sea (ITLOS), that India be directed to refrain from taking any judicial or administrative action against the two marines and also ensure that restrictions on their liberty, security and movement are lifted. The ITLOS granted the following relief: “Italy and India shall both suspend all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render.[10]” However, Italy’s request for the release of the marines was rejected as the matter was being adjudicated.

The dispute between India and Italy is very far from being over. The decision of the Supreme Court led to an immediate fall-out in the diplomatic relations between the two nations, even as the matter still remains inconclusive. After the two marines were allowed to go back to Italy on leave, the Italian authorities refused to return the marines until they were ensured that they would not face the death penalty[11]. After diplomatic negotiations, the Italians relented and the marines were returned without any acceptance of their demands, which led to the resignation of Italy’s Foreign Minister. The two marines were finally released after four years of being detained without any formal charges, which had caused several international organisations to protest India’s actions as violative of natural human rights.

UPDATE [02nd July, 2020]: The Permanent Court of Arbitration, holding that Italy was in breach of Article(s) 87 and 90 of the Convention, decided that India is entitled to claim compensation from Italy for the loss of life and material damage to property, in addition to the moral harm, suffered by the crew of St. Antony. Also, the Court held that the Marines are entitled to immunity for their acts and that India is precluded from exercising jurisdiction over them.

Footnotes

[1] (2013) 4 SCC 721.

[2] Section 3(2), Maritimes Zones Act, 1976.

[3] Section 5, Maritimes Zones Act, 1976.

[4] Section 7, Maritimes Zones Act, 1976.

[5] Section 4, Maritime Zones Act, 1976.

[6] Article 18, United Nations Convention on the Law of the Sea, 1982.

[7] Article 94(7), United Nations Convention on the Law of the Sea, 1982.

[8] Article 97, United Nations Convention on the Law of the Sea, 1982.

[9] (2013) 4 SCC 721.

[10] The Enrica Lexie Incident (Italy v. India), ITLOS, Provisional Measures, Order of 24 August 2015, para. 29.

[11] Murder charge Italian marines on way to New Delhi: India, (https://www.straitstimes.com/asia/murder-charge-italian-marines-on-way-to-new-delhi-india) last visited 05–06–20, 23:19.

Disclaimer: This article was originally published on the ProcejureLaw portal on June 12, 2020 (https://procejurelaw.co.in/2020/06/12/case-comment-the-italian-marines-case/).