It’s our boat, our courts

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 SS 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.

(The author is a former Professor, International Legal Studies, Jawaharlal Nehru University, New Delhi)

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Printable version | May 11, 2021 12:48:01 AM | https://www.thehindu.com/opinion/lead/its-our-boat-our-courts/article4538854.ece

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