In this blogpost, Rounak Biswas, Student of Symbiosis Law School, Pune and the Diploma in Entrepreneurship Administration and Business Laws by NUJS, writes about, S.S.Lotus case – Facts and Judgment, post lotus scenario, Enrica Lexie – India’s Contention, ITLOS and the road beyond and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988

Introduction

Freedom of seas, rather High Seas from the time immemorial has been the bone of contention of all seafaring nations. From the time immemorial, the Vikings, the Portuguese, the Spanish, the British has taken the sea route to discover new lands. Consequently, the independence of the sea also came up. Earlier, the cardinal rule was that the control of the sea will be with the country which is militarily more advanced from the other. The same can be attributed to the fact of Spanish Armada or by the Battle of Jutland where one country tried to establish itself as a naval power replacing the other country. Thus, it’s quite easy to conclude that there was no freedom of high seas as such, and one or the other country has always tried to control freedom of navigation in the seas. The sea in the early fifteenth century was considered to be one of the means for expanding trade and country like Spain considered sea as mere clause and thereby refuses to allow non-Spanish ships to enter the areas administered by Spanish fleets[1].

The question of jurisdictional limit of the seas is a very important one and the same has been debated by jurists and countries alike. The difference in the opinion of jurisdictional limits of the seas has proved time and again that the problem is not easy to resolve and needs a uniform convention to resolve the issue. The Dutch jurist, Hugo Grotius was an advocate of open sea[2] and considered that the freedom of navigation should not be hindered by any state. However, the same appeared to be a far cry. Thus many countries adopted the three-mile limit. The three-mile limit is the area (three miles) covered by a canon shot when fired from the coast aiming towards the sea. However, the same failed to address the problem in the case of collision of two foreign ships or in the case of any conflict between two foreign ships.

S.S.Lotus case – Facts, Judgment & Hereafter

The case of S.S. Lotus (1927) can be considered to be the first case where the question of jurisdiction was raised for the first time. In S.S. Lotus case, a Turkish ship Boz Court collided with a French ship S.S.Lotus in the high seas on 2^nd August 1926[3]. As a result of the collision, the Turkish ship capsized along with the loss of lives of eight Turkish sailors and passengers. When the French ship Lotus reached Turkey, the authorities of Turkey ordered the officer of the watch on board Lotus (who was playing the same role during collision), Monsieur Demons to submit evidence to the Turkish authorities. While doing so, he was arrested by Turkish authorities and along with the Captain of the capsized Turkish ship was tried on the count of manslaughter. He was charged guilty and therefore was punished. The French authorities got concerned by the act of the Turkish authorities and lodged protest with the Turkish authorities. When M. Demons was ordered to be imprisoned for eight days and a fine was imposed the French authorities moved to the Permanent Court of Justice calling the Turkish trial and punishment illegal. The question, therefore, arose in the court whether the Turkish authorities have committed a crime by trying a foreign national in their court for a crime committed outside Turkey and the legality of the pecuniary compensation. The court held that the Turkish authorities have not committed any wrong by trying M. Demons, the French national in their court. The court enunciated two principles, namely – outside its territory and within its territory, collectively known as Lotus principles. The first principle says that a country cannot act beyond its jurisdiction unless the same is being allowed by a convention, custom or a treaty. The second principle says that a state may exercise jurisdiction within its territory even though there is no specific international law or treaty allowing to do so.

However, there is no international treaty or convention that prohibits a state to exercise its jurisdiction in case the act/incident is committed in a foreign country. A wide discretionary power lies in the hand of the country, in that case, which has to decide when to invoke jurisdiction and when not. In that pursuit, the country should keep in mind that they do not overstep the limitation laid down by the international law. In the case, the court held that there lies a concurrent jurisdiction i.e. both the Turkish and French authority has the right to try the offender and not just the flag state i.e. the French authorities. In this case, the court considered both the Turkish and French vessel as a territorial extension of their respective countries and thus came into the decision. The court further held that the Turkish authorities by initiating the criminal proceeding against M. Demons did not violate article 15 of the Lausanne Convention 1923 respecting conditions of residence and business and jurisdiction.

Post-Lotus Scenario

The Lotus decision, however, has been reversed post the 1958 Geneva Convention on the High Seas, reemphasized in UN Convention on the Law of the Sea (UNCLOS) 1982.

Article 11 of the 1958 Geneva Convention on the High Seas and Article 97 of UN Convention on the Law of the Sea (UNCLOS) 1982

 Penal jurisdiction in matters of collision or any other incident of navigation

1. 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.

2. In disciplinary matters, the State, which has issued a master’s certificate or a certificate of competence or licence, shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.

3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State[4].

But these penal provisions does not have any mention of shooting incidents which clearly does not come under the purview of other incidents of navigation. Now the question lies what will be the course of action in that case as it has been raised in the Enrica Lexie Case.

Enrica Lexie – India’s Contention, ITLOS and the road beyond

Enrica Lexie incident happened in February 2012. Two Italian marines from Vessel Protection Detachment (VPD) mistook an Indian trawler St. Antony as a pirate boat and indiscriminately fired upon it. Consequently two fishermen aboard St. Antony died. The whole incident happened in the contiguous zone at 20.5 nautical miles, well beyond the territorial limit but within the Exclusive Economic Zone (EEZ). The ship was intercepted by Indian Coast Guard and was forced to anchor in Indian port of Kochi. Consequently, the two marines aboard Enrica Lexie were arrested on charges of manslaughter. When the Italy questioned the jurisdiction of India in the case, the Kerala High Court and Supreme Court both ordered the Italian Government and the marines to co-operate with Indian authorities. In response to this unfortunate incident, India claimed an exception to Article 97 of UN Convention on the Law of the Sea 1982 by invoking Article 1(a) and 1(g) and Article 6 of The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (hereinafter referred as SUA) 1988.

The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988

Article 1. Any person commits an offence if that person unlawfully and intentionally:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or

(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or

(e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or

(f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f)[5].

Article 6(1): Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences set forth in Article 3 when the offence is committed:

(a) Against or on board a ship flying the flag of the State at the time the offence is committed; or

(b) In the territory of that State, including its territorial sea: or

(c) By a national of that State.

Thus, India claimed jurisdiction in this matter as the Italian Marines Act is in violation of Article 1(a) and (g) and Article 6 (1)(a) of SUA Act 1988. All the more the immunity of SUA Act cannot be claimed by Italy since the vessel does not qualify as a warship or a naval auxiliary force or customs unit. Here the ship Enrica Lexie was registered as an oil tanker.

Following a diplomatic fallout between India and Italy, Italy moved to International Tribunal on The Law of Seas (ITLOS) claiming India did not have any jurisdiction over the case and asked to order India to refrain from any kind of administrative and judicial action against the marines. Italy also submitted before ITLOS to allow the two marines to remain in Italy until the completion of arbitration proceedings[6]. India refuted the submission made by Italy and requested the ITLOS to reject Italy’s submissions[7]. The tribunal, ITLOS ordered both the sides to suspend all the court proceedings of both India and Italy and requested them not to start any case or proceeding that may affect the judgment given by ITLOS in the course of time[8]. Accordingly India suspended all the court proceedings. As of now the case is under the purview of Permanent Court of Arbitration and the arbitration proceedings have started following the submission from the Italian and Indian side[9][10].

Conclusion

We have covered a long distance from Lotus to Lexie. However in my personal opinion, we still need to cover a long way as we see the law is incapable of explaining itself in many areas. The Enrica Lexie case pointed out the loophole of UNCLOS 1982, and thus, it is of utmost necessity to reformulate the Article 97 of UNCLOS 1982 providing what should be the correct step in case incident unrelated to collision happens. Instead of ‘any other incident of navigation’, proper conditions should be laid down to avoid standoffs as it happened in Enrica Lexie Case. Furthermore before firing upon some vessel, there should be an established mechanism of warning beforehand so as to warn the intruder of the possible preemptive strike. Otherwise often now and then people will be killed unnecessarily, and countries will get involved in legal entangles.

[1] http://www.jstor.org/stable/pdf/2506024.pdf?acceptTC=true

[2] The Law of the Sea, Robin Rolf Churchill, Alan Vaughan Lowe, Pg- 59 – 60

[3] http://www.icj-cij.org/pcij/serie_A/A_10/30_Lotus_Arret.pdf

[4] Part VII, UNCLOS 1982 can be accessed at: http://www.un.org/Depts/los/convention_agreements/texts/unclos/part7.htm

[5] SUA Act 1988, can be accessed at http://www.un.org/en/sc/ctc/docs/conventions/Conv8.pdf

[6] https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.24_prov_meas/Final_submissions_Italy_orig_Eng.pdf

[7] https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.24_prov_meas/Final_submissions_India_orig_Eng.pdf

[8] https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.24_prov_meas/C24_Order_24.08.2015_orig_Eng.pdf, pg 25 – 26

[9] http://www.pcacases.com/web/sendAttach/1673

[10] http://www.pcacases.com/web/sendAttach/1674