This article has been written by Anika Sharma.
Italian Marine Case, since long has been a bone of contention between the two states, Italy and India. The contention was a consequence of an incident that took place on 15th February, 2012 at the Kerala Coast, where two Italian officials onboard MV Enrica Lexie shot two fishermen, assuming them to be pirates. Subsequently, the officials were arrested by the Kerala State Police and produced before the Magistrate of Kollam District. The officials contending the jurisdiction of the state of Kerala filed the petition initially at the Kerala High Court and then in the apex court of India. The case took mileage not only in the national domain but also initiated the discussion at the international stature regarding, which state to try the accused officials when in 2015 the state of Italy filed a suit at the Permanent Court of Arbitration.
Applicability of International Law
With the actuation of the suit Republic of Italy v. Union of India, the deliberation on the issue of implementation of international law in consonance with municipal laws was brought fore with reference to the decision regarding the jurisdiction of state legal authorities in the aforesaid incident. India is a sovereign state following a general principle regarding the implementation of international treaties and conventions i.e., mere signing or ratifying any treaty does not make it applicable in the national realm unless a law in consonance with the same is passed by the legislature.
In the above-mentioned suit, the Indian legislation, Maritime Zones Act, 1976 and the international convention, United Nations Convention on Laws of the Sea were the two legal frameworks contended, compared and analyzed in order to get to a decision with respect to the jurisdiction of Indian Criminal Law in the contiguous zone of the maritime boundaries as the two foreign officials shot the fishermen in the contiguous zone (20.5 nautical miles). The contention raised by Union of India that there exists no law in India in conformity to the UNCLOS and this convention has no binding on the state of India with respect to its compliance. But, this contention, if considered true will bring legal sanctions to the state of India at the international forum as India has ratified the convention and thus is legally bound to comply with it.
Under Sec 2 of the Indian Penal Code, every person should be charged for his violations within the territory of India. The term “ Person” makes it applicable to each and every person irrespective of nationality. So, in this aspect IPC is applicable to the officials despite them being foreigners. But, the contention is regarding interpretation of “Territory of India” with respect to the maritime boundaries. According to the Sec 3 of the Maritime Zones Act, 1976, India enjoys sovereignty in the territorial waters only i.e., upto 12 nautical miles and does not enjoy similar rights and privileges in the contiguous zones as specified under Sec 5 of the Maritime Act. Although, Sec 5(4) 6 provides central government power to take action in certain matters concerning either security of India or Immigration, sanitation, customs and other fiscal matters. The state of affairs that materialized does not constitute any threat to the security of India, thus, these provisions do not pertain to the happenings concerned. Article 59 of the UNCLOS, explicitly specify that no coastal state has right or jurisdiction in the EEZ, if the conflicts arise then a decision should be taken as per the principle of equity and the concerned circumstances.
The notification dated 27th August 1981, under Sec. 7(7) of the Maritime Zones Act, 1976, bring into dispute the municipal and international law, as this notification grant India, the jurisdiction for trial in the present case. In the case of Maganbhai Ishwarbhai Patel v. Union of India and anr., the court held that whenever any discrepancy arises between municipal law and international treaty, then the treaty must prevail. Taking this judgement as precedent, will make the UNCLOS stand over the notification issued thus denying any state rights or jurisdiction in the EEZ (contiguous zone forms part of EEZ).
Following this, India does not enjoy sovereign rights in the contiguous zones, thus extending IPC beyond 12 nautical miles impermissible and similar holding can be observed in the case of Aban Loyd Chilies Offshore Ltd v. Union of India.
Kerala High Court jurisdiction
The primary argument at the Supreme Court of India was with respect to whether the provinces has jurisdiction in the proceedings involving foreign nationals. The issue was discussed at length and reached to the consensus that Kerala being a state does not exercise jurisdiction in the concerned matters. From the view of the international legal framework, the jurisdiction of Kerala in the aforesaid state of affairs will cause violations of the certain principle under the “ Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States in accordance with the Charter of United Nations”. Firstly, the principle of international comity, which asks for recognition by political entities to mutually recognize each others’ legislative, executive and judicial acts.
Herein stated, political entities constitute states, nations and courts of other jurisdiction, but instead of the state recognizing them the similar powers were exercised by the provincial authority.
Secondly, the principle of equal sovereignty under the abovementioned declaration seems to be not in consonance because the elements of equal sovereignty as defined in the declaration are not complied with. One of the elements of the equal sovereignty concern “rights of states inherent in full sovereignty” but the provinces in any state does not enjoy the same. Thus, whenever the question of sovereignty comes fore the state and not the provinces, enjoy the full autonomy and rights within the local territorial limits with respect to the trial of foreign entities.
Moreover, even the principle of international legal responsibility, finds the state responsible for internationally committed wrongs and not the provinces, this can be deduced by the way Austrian Legal scientist A. Ferdross explains the international legal responsibility. According to him“ negation of the principle of state responsibility for internationally wrongful acts would lead to the destruction of international law, as a denial of responsibility for the commission of a wrongful act would disappear as the obligation of States to respect the rules of international law”, thus obligating the states in the aforesaid suit and denying the jurisdiction to the state of Kerala.
Article 59 of UNCLOS proscribe the jurisdiction of Italy, like any other coastal state in the EEZ but the PCA in its decree still confer the rights to try the officials to the state of Italy on account of the sovereign immunity enjoyed by them. Both the officials, while onboard were working under the capacity of the Italian state and not in an individual capacity and are authorised under Art. 100 of UNCLOS, as they assumed the fishermen to be pirates. So even under the principle of restrictive immunity, their act falls under the ambit of the sovereign act.
The decree in the concerned suit as released by Permanent Court of Arbitration prohibits the application of Article 97 of UNCLOS 15 in the case discussed. This article calls for penal or disciplinary proceedings in the event of a collision or any other incident of navigation but homicide that happened in the maritime territory does not constitute itself in the definition of the incident of navigation. Incident of navigation, thus involves acts and activities that are peculiar to the travel by sea or to normal navigation or any accident that is caused to bad handling or actions of the sea or anything which is foreseeable to materialize at the time of voyage in the sea.
The decision of Permanent Court of Arbitration of granting the jurisdiction to state of Italy in the aforesaid case is to some extent in unison with the municipal laws of India because under Sec 188 of CrPC , India enjoys jurisdiction over all the offences committed by its subject even outside the territory of India. Thus, if India contends this decision will question its own domestic laws, instead it should ask for compensation for the negligent death of its fishermen belonging to lower economic and social strata of the society in order to provide help and support to their families and try to reduce their economic sufferings. But, Italy’s claim for compensation will not be bona fide because the officials’ rights were to a large extent revered and taken into notice, whether it concerns their health issues, their right to vote or the right to liberty. They were allowed to travel to Italy in order to exercise their right to vote and even their family members were not restricted from travelling to India. Thus, India made all efforts in order not to infringe their basic and fundamental rights of life and personal liberty. This decree resolved just the issue of the trial of the accused but the contention regarding the personal loss caused to both the parties should also be taken into consideration and resolved by providing certain reparations.
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