The Supreme Court’s judgment on Enrica Lexie last week was unambiguous in declaring that the Italian marines must stand trial in India for now. But the Court’s reasoning may have far reaching consequences for the case as well as for how India can interpret its jurisdiction in waters beyond the 12-nautical mile line from the coast that marks the formal extent of its territory.
The Court has pointed out that India is a signatory to the United Nations Convention on the Law of the Sea (Unclos) and is bound to adhere to it. Article 97 of Unclos says that in case of a navigation incident such as collision in the high seas India cannot detain a vessel registered in another country or initiate proceedings against the crew if they are not Indian nationals. The Court said Article 97 will not apply in the case of Enrica Lexie as the shooting was a criminal action, not a navigation incident.
But the Court calls India’s Exclusive Economic Zone, a distance of 200 nautical miles from the shore, high seas where Unclos 97 could apply for collisions. The judgment likely has direct relevance in the recent case of m.v. Izumo that rammed into a fishing dinghy and sank it some 18 nautical miles off Kerala. The Chinese navigating officer was arrested by the Kerala police after registering cases.
Izumo’s 18 nautical miles falls under the contiguous zone — the region between 12 and 24 nautical miles from the coast. EEZ is further to the contiguous zone. The SC ruling denies any jurisdiction to Kerala to detain vessels or take action against the crew outside of territorial waters.
Trying the marines in Italy
The recent Supreme Court judgment in the Enrica Lexie case set up a Special Court to try the Italian marines. The judgment declares the EEZ of India — the region between the contiguous zone and 200 nautical miles into the sea — as the high seas. Ironically enough, the United Nations Convention on the Law of the Sea (Unclos) defines high seas as the area beyond the EEZ, contiguous zone and territorial waters. But the Court has brought the high seas much closer to India’s coast and no nation can claim sovereignty over the high seas. This may prevent India from taking unilateral action in case of collisions happening just outside of the contiguous zone.
Meanwhile, Article 100 of Unclos says that nations must cooperate to curb piracy. If the Special Court finds that the shooting is an anti-piracy action gone awry then Unclos could bring Italy into the trial process. The Special Court can then be asked to decide if Italy also has jurisdiction over the case.
A case has been filed in Italy against the marines with a maximum punishment of 21 years. As per the judgment, trying the marines in Italy could well become an option.