Republic of Italy v Union of India
Citation: (2013) 9 SC 89
Bench: Altamas Kabir CJI, Anil R Dave, Vikramajit Sen JJ
FACTS OF THE CASE
The incident took place on 15th February 2012, when MV Enrica Lexie, an Italian flagged shipping vessel was on its way to Djibouti. It came across St. Antony, an Indian fishing vessel. Enrica Lexie was sailing with an Italian Military Protection Department on board. His duty was to protect the vessel from piracy attacks. The ship was sailing close to the Indian border in the Indian Contagious Zone, when it reported a piracy attack through the Mercury Chat. The marines mistook St. Antony to be a pirate vessel. And killed two Indian fishermen at a distance of about 20.5 nautical miles from the sea coast.
The Italian vessel had proceeded about 38 nautical miles on the high sea towards Djibouti, when it was contacted by the Maritime Rescue Co-ordination Centre, Mumbai. Mumbai asked it to return to Kochi port, to assist with the enquiry into the incident. Responding to the message, Enrica Lexie changed its course and returned to Kochi port, on 16th Feb, 2012. Upon docking in Cochin, the Master of the vessel was informed about the First Information Report being filed with respect to the firing incident leading to the death of two Indian Fishermen. On 19th February, the two marines, Massimiliano Latorre and Salvatore Girone, were arrested and charged for murder under the Indian Penal Code.
ISUUES BEFORE THE COURT?
Whether the arrested fishermen were correctly charged for murder under the Indian Penal Code?
The Italian Marines claimed sovereign functional immunity. They contended before the court that since they were the naval guards on an Italian ship, they were functioning under the instructions of their country, Italy. But this argument was rejected by the Supreme Court in the absence of any forced agreement between India and Italy.
Counsel for Italy then relied on Article 97 of UNCLOS which provides for Penal Jurisdiction in matters of collision or any other incident of navigation. Since India was a signatory of the UNCLOS, it was bound by its provisions and both UNCLOS and Maritimes Zones Act, 1976 to recognise the primacy of Flag State Jurisdiction. It was also highlighted that Maritimes Zones Act, 1976 provided use of territorial waters by foreign ships.
They had a right to innocent passage. The incident occurred at a place which was 20.5 nautical miles from the coast of India. It was clearly outside territorial waters and therefore, the incident did not occur within the jurisdiction of one of the federal units of the Union of India.
The Court relied heavily over the principle laid down in the case of S.S. Lotus (France v. Turkey)7 and ruled that India had jurisdiction.
In the said case, the question relating to the extent of the criminal jurisdiction of a State was brought to the Permanent Court of International Justice in 1927. The said case related to a collision between the French Steamship Lotus and the Turkish Steamship Boz-Kourt, which resulted in the sinking of the latter and the death of eight Turkish subjects.
Once the Lotus arrived at Constantinople, the Turkish Government commenced criminal proceedings against the Captain of the Turkish vessel and the French Officer of the Watch on board the Lotus. The French Government questioned the judgment on the ground that Turkey had no jurisdiction over an act committed in the open seas by a foreigner, on board a foreign vessel, whose flag gave it exclusive jurisdiction in the matter. On being referred to the Permanent Court of International Justice, it was decided that Turkey had not acted in a manner which was contrary to International Law. Since the act committed on board the Lotus had effect on the Boz-Kourt flying the Turkish flag.
The Supreme Court also ruled that since the incident took place within the Contiguous Zone, over which, under the provisions of the Maritime Zones Act, 1976, and UNCLOS 1982, India was entitled to exercise rights of sovereignty. The Court admitted that State of Kerala had no jurisdiction to try this case,
But Union of India could try this case but only through a special court. A special court was set up to try this case in accordance with Maritimes Zones Act, 1976, Code of Criminal Procedure, 1973, Indian Penal Code, 1860 and UNCLOS, 1982. It was to be tried unless there was no conflict between the provisions of domestic law and UNCLOS. It also concluded that the shooting incident was neither a matter of collision nor any other incident of navigation as mentioned under article 97 of the UNCLOS.
PRINCIPLE OF LAW INVOLVED
As per the UNCLOS, the seas of the world are divided into Territorial Waters, Contiguous Zone, Exclusive Economic Zones and the High Seas. Further, within each zone is attached a certain cross-section of rights and obligations concerning the coastal state and vessels bearing its flag vis-à-vis other states and other states’ vessels.
As per UNCLOS, roughly stated, the extent of the Contiguous Zone is earmarked at 24 nautical miles from the coastal ‘baselines’, of which the initial 12 nautical miles forms part of the Territorial Sea of a coastal state. Thus, for any such coastal state, its ‘criminal jurisdiction on board a foreign ship’ extends to only the Territorial Sea and not the extended Contiguous Zone (Article 27 UNCLOS).
In fact, concerning the Contiguous Zone, the UNCLOS explicitly lays down (Article 33 UNCLOS) that a coastal state may only exercise necessary control and punish infringement of its customs, fiscal, immigration or sanitary laws and regulations as may have occurred within its territory or within the above-outlined Territorial Sea; making it manifest that India only exercises ‘sovereign rights’ over zones beyond the Territorial Sea and that ‘sovereignty of India’ only extends till its territorial waters.
Maritime Zones of a country
All these zones are measured from the baseline of a country which is the coastline or low water line recognized by the respective coastal state. These are defined under the Territorial waters, Continental shelf, Exclusive economic zone and other Maritime zones Act, 1976.
The territorial sea is a zone that measures 12 nautical miles from the baseline of a country. And the coastal state has jurisdiction over the entire territory, including the resources found in the sea or sea-bed. A foreign ship is allowed to travel here without committing trespass.
The contiguous zone of a country extends to 24 nautical miles from the baseline of the country. So, it includes the 12 nautical miles of territorial sea but has an extra coverage of 12 nautical miles after the territorial sea, before the high seas. The coastal state has the jurisdiction over the contiguous zones regarding any laws that it has set for foreign ships in the area.
Exclusive Economic Zone
This is an area of 200 nautical miles measured from the baseline, and as the name suggests, the coastal state has exclusive rights to use and exploit all living and non-living resources present in the sea.
Although unlike the other zones discussed above, the coastal country has no right to stop or restrict the movement of foreign ships.
The area beyond the EEZ is referred to as the high seas. This is an area where any country would have the right only to explore or make scientific discoveries. This area is not under the jurisdiction of any state, and international bodies would take over, in case of any dispute.