Italy, Enrica Lexie and Running Away from Law

With the Supreme Court Judgement on the Enrica Lexie declaring that India had concurrent jurisdiction and could try the two Italian marines, we thought we had come to an end of the jurisdictional saga.

By Italy now refusing to honour the commitment made by it in the Supreme Court – that the two marines would return to India after casting their vote in the Italian elections -- Italy is trying to re-start the jurisdictional case by altering the facts on the ground: namely the custody of the Italian marines.

It must be said that this is an almost unheard of case in which a sovereign state reneges on its legal commitments made in a court of law of another country. Whether this will lead to a rupture of relations between India and Italy and what recourse India has are questions that need to be worked out carefully. But it does raise the question of how legal disputes between countries are to be handled.

On the jurisdiction issue. To recapitulate, the Italian side had argued that only Italy has the right to try the two marines as the incident occurred outside India's territorial waters; under the terms of UNCLOS to which both India and Italy are signatories, it argued that Italy had sole jurisdiction being the flag state. They had further argued that the Italian naval commandos were acting under authority of the Italian state and could therefore avail of sovereign immunity.

The Supreme Court in its verdict of January 18, 2013, upheld India's contention that as the Union Government had extended India's sovereignty up to the Exclusive Economic Zone (EEZ) and therefore India had jurisdiction under its laws to try the marines. It also found that Article 97 of UNCLOS was inapplicable to the facts of the case as the incident of firing by the marines could not be deemed to be an ‘incident of navigation’ or ‘collision’ as defined in the Act. The Court noted that the terms used in Article 97 could not include a criminal act and that while Article 100 of UNCLOS (which inter alia deals with issues of cooperation amongst member states in matters of piracy) could apply to the incident, the same would have to be considered only after evidence had been presented in the course of the trial.

The Supreme Court however also held that the the Union government and not the State of Kerala had jurisdiction to adjudicate the dispute.

The decision of the Supreme Court was pronounced in the form of two concurring but slightly different judgements by the Chief Justice of India, Altamas Kabir and Justice Chelameshwar.

The Chief Justice quoted the Lotus case with approval agreeing with the basic law laid down therein that in the absence of a specific provision restricting jurisdiction of one the countries in a situation where multiple countries can legitimately claim jurisdiction, concurrent jurisdiction could apply.

The Chief Justice went on to hold that since some sovereign rights could legitimately be exercised by a country in the EEZ and Contiguous Zone (under UNCLOS), India could exercise jurisdiction over the incident.

Justice Chelameshwar’s judgement was based largely upon notions of sovereignty and the fact that a sovereign state ought to have the authority to apply and enforce its laws against persons and things beyond its territory whenever its legitimate interests were affected. The judge relies on numerous domestic enactments (notably Sections 2 and 4 of the IPC and various Sections of the Maritime Zones Act, the Anti-Hijacking Act, 1986, Suppression of Unlawful Acts Against Safety of Maritime Navigation Act Fixed Platforms and Continental Shelf Act, 2002 etc.) to buttress his argument that the Indian state has previously recognized the principle of extra-territorial jurisdiction and that the Indian states ability to adjudicate a dispute was not limited by the nationality of the people involved but could be based wholly on the effects of the incident on India.

Both judges paid no heed to the issue of sovereign immunity possibly leaving the same to be adjudicated in the course of trial. The judgement therefore had left room for the Italian marines to still be let off on the grounds in the trial court that they were (or reasonably believed they were) fighting piracy and therefore covered under Article 100 of UNCLOS. If it should be found that they were acting outside the limits of their authority or if it were found that their claims regarding piracy are not reasonable, they will be unable to claim immunity under this Article.

The Italian government had the option of fighting the case of the marines in the Indian judicial system or even in an International Court of Justice if they really believed they had a strong legal case. Obviously, the Italian authorities are no longer willing to let the law take its course in the Indian or international courts. By reneging on their undertaking given in front of the Supreme Court, they have only compounded the initial offence of the Italian marines.

Obviously, Italy has escalated this issue well beyond the legal framework. It is no longer an issue of law but how sovereign nations should behave with each other. Whether India can accept such a breach of law and international norms without it impacting the relations between India and Italy remains to be seen.

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