The Marshall Islands’ Case against India’s Nuclear Weapons Program at the ICJ

[Cross-posted from the EJIL: Talk! blog]

Earlier this year, on 24 April, the Republic of the Marshall Islands filed an application against India and eight other States at the International Court of Justice (ICJ), claiming that these States, known or presumed to possess nuclear weapons, have failed to fulfil their obligations under international law with respect to nuclear disarmament and the cessation of the nuclear arms race at an early date. In its application against India, the Marshall Islands accused it of not engaging in negotiations to cease the nuclear arms race, highlighting that India, instead, continues to expand and improve its nuclear arsenal. By an Order dated 16 June 2014 the Court noted India’s objection to its jurisdiction, as well as its refusal to participate in procedural meetings, and decided that the jurisdictional questions must be separately determined before proceeding to the merits. This post explores the basis of the Court’s jurisdiction over the Marshall Islands’ application against India. One reservation to India’s optional clause declaration excluding disputes concerning actions taken in “self-defence” suggests that the Court lacks jurisdiction over the case.

The Marshall Islands relies on different grounds to establish the Court’s jurisdiction in its nine applications. In its applications against India, the United Kingdom, and Pakistan, it invokes these States’ declarations accepting the Court’s compulsory jurisdiction. In its applications against the United States, China, France, Russia, Israel and North Korea – none of whom have made declarations accepting the Court’s compulsory jurisdiction – it calls upon these States to accept the Court’s jurisdiction under the doctrine of forum prorogatum. The application against India is unique because, while India has accepted the Court’s compulsory jurisdiction, unlike the UK and Pakistan, India made a reservation to its Declaration that may exclude the Court’s jurisdiction over the Marshall Islands’ Application.

The Limits of India’s Recognition of ICJ Jurisdiction

On 18 September 1974, Swaran Singh, the then Indian Minister of External Affairs, made adeclaration, on India’s behalf, which recognizes “as compulsory ipso facto and without special agreement … the jurisdiction of the [ICJ] over all disputes”. This blanket acceptance is qualified by a long list of reservations that excludes several categories of disputes from the scope of India’s consent. One broad class of disputes that is excluded are “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, … and other similar or related acts, measures or situations in which India is, has been or may in future be involved”.

At its heart, the Marshall Islands’ case against India concerns “the quantitative buildup and qualitative improvement of [India’s] nuclear forces” (Application, p.25). The question therefore is whether this subject matter is excluded by India’s reservation described above. The mere development of a nuclear weapons program and the maintenance of a nuclear arsenal would most likely not qualify as a “situation of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression”. However, the above reservation is worded rather broadly, and India’s nuclear weapons program may be seen as being “relate[d] to” or “connected with” such situations or “other similar or related acts, measures or situations”.

The Marshall Islands’ Application appears to acknowledge this point, yet fails to address the hurdle posed by the reservation, noting only that India’s Declaration is “without pertinent reservation” (Application, p. 24). For example, the Application quotes India’s statement at the 2009 plenary of the Conference on Disarmament, wherein India stated that “[n]uclear weapons are an integral part of our national security and will remain so, pending the global elimination of all nuclear weapons on a universal, non-discriminatory basis” (Application, p. 11). The Application also refers to India’s no-first-use-policy and quotes the Indian government’s stance that “nuclear weapons will only be used in retaliation against a nuclear attack on Indian territory or Indian forces anywhere” (Application, p. 11). These statements and India’s official no-first-use-policy suggest that India’s nuclear weapons program is designed and implemented primarily to safeguard national security and to defend the country in situations of hostilities and armed conflicts. Any dispute relating to India’s nuclear weapons program and arsenal would, therefore, appear to be excluded from the Court’s jurisdiction by virtue of the broadly worded reservation found in India’s 1974 Declaration.

Interpretation of National Defence Reservations

While some States and scholars argue that disputes relating to national defence and security are non-justiciable by their very nature, reservations similar to the broadly worded “self-defense” reservation included in India’s Declaration are not very common. A quick survey of the 70 declarations available on the Court’s website as of 19 June 2014 reveals that 7 contain some variation of a “self-defense” reservation.

In addition to the Court’s approach towards the interpretation of optional clause declarations in general, two disputes that may shed light on the issue are the Nuclear Tests Cases brought byAustralia and New Zealand against France in 1973 concerning the legality of atmospheric nuclear tests conducted by France in the South Pacific region. In those cases, Australia and New Zealand sought to base the Court’s jurisdiction on, inter alia, France’s 1966 declaration recognizing compulsory jurisdiction. The 1966 French Declaration in effect at that time, however, contained a reservation similar to the one found in India’s 1974 Declaration that excluded “…disputes concerning activities connected with national defence”. In the end, the Court was not called upon to address this issue as it found that the case had lost its object in light of the public assurances given by high-ranking French officials that France would cease atmospheric nuclear tests in the South Pacific. Nevertheless, several judges of the Court addressed the issue in their individual opinions. Judge de Castro was of the view that the French “reservation certainly seems to apply to the nuclear tests”. Judge Forster went further and spoke of the “absolute sovereignty which France, like any other State, possesses in the domain of its national defence”. Citing the example of the UK, Judge Gros noted that Australia’s and New Zealand’s claims “to impose a certain national defence policy on another State is an intervention in that State’s internal affairs in a domain where such intervention is particularly inadmissible”.

Commenting on these cases, Professor Oscar Schachter, in his 1982 general course at the Hague Academy, noted that “a term such as ‘national defence’ allows a very wide margin of appreciation and a court should be exceedingly cautious to avoid imposing its own interpretation on whether a particular act is in the national defence of the State concerned”. While the exact language of the French and Indian reservations may be different, in general, the Court has recognized that, given thesui generis nature of optional clause declarations, the “régime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties” (Fisheries Jurisdiction (Spain v. Canada), Judgment of 4 December 1998, para. 46). In particular, the Court has explained that whatever the basis of consent to its jurisdiction, “the attitude of the respondent State ‘must be capable of being regarded as an ‘unequivocal indication’ of the desire of that State to accept the Court’s jurisdiction in a ‘voluntary and indisputable’ manner” (Questions of Mutual Assistance (Djibouti v. France), Judgment of 4 June 2008, para. 62). Such a subjective interpretative approach, as reflected in the “unequivocal indication” standard, appears to favour a reading of India’s Declaration that excludes disputes relating to India’s nuclear weapons program from the scope of India’s consent to the Court’s compulsory jurisdiction.

Further Options for India

Having formally objected to the Court’s jurisdiction, India now has two options. It can choose to participate in the ICJ proceedings in order to formally lodge its legal objections to the Court’s jurisdiction. Or, as envisaged in Article 53 of the Court’s Statute, it can choose to not appear before the Court at all, as France did in the Nuclear Tests Cases. Interestingly, the Court’s Order of 16 June fixing the time limits for pleadings on jurisdictional questions notes that India refused to participate in a meeting called by the President of the Court to discuss preliminary procedural issues. India, therefore, may be leaning towards non-appearance.If India refuses to appear, Article 53(2) of the ICJ Statute requires that the Court must satisfy itself that it has jurisdiction and that the claim is well founded in fact and law.

While not participating in the proceedings appears to provide an easy way out, India’s reasoned engagement in the proceedings by objecting to the Court’s jurisdiction would show its commitment to the international rule of law, as encouraged by Article 51 of the Indian Constitution, which calls upon the State to “foster respect for international law” and to “encourage settlement of international disputes by arbitration”.  The last time India was involved in a dispute before the ICJ was in 1999 when Pakistan accused India of shooting down a naval aircraft in Pakistan’s airspace. In that case, too, India objected to the Court’s jurisdiction on the basis of the so-called “commonwealth reservation” to its optional clause declaration. However, it fully participated in the written and oral proceedings on the issue of jurisdiction, and the Court eventually agreed with India and found that it lacked jurisdiction (Judgment, para. 46).  (Incidentally, unlike 1999, this time, the Court also includes a permanent judge of Indian nationality, Judge Dalveer Bhandari having been elected to that position in 2013.)

Finally, it is important to remember that the argument that the Court does not have jurisdiction to hear the Marshall Islands’ case against India has nothing to do with the undoubted desirability of living in a world free of nuclear weapons, which are known to cause unbearable suffering and vast destruction. Instead, the Court’s lack of jurisdiction is only a sobering reminder that public international law generally and the jurisdiction of the Court, in particular are founded on the voluntary consent of States. To quote Judge Ignacio Pinto from the Nuclear Tests Cases, the Court “has no right to hand down a decision against a State which by a formal declaration excludes its jurisdiction over disputes concerning activities connected with national defence”.

BREAKING: Final Award Issued in the Kishenganga Arbitration

The Court of Arbitration (CoA) constituted under the Indus Waters Treaty delivered its Final Award in the Kishenganga Arbitration between Pakistan and India on 20 December 2013. As reported previously, the CoA issued a Partial Award in the matter on 18 February 2013. The Partial Award allowed India to proceed with the construction of its Kishenganga Hydroelectric Power Project (KHEP), subject to ensuring a minimum downstream flow of water to be determined in the Final Award. It also prohibited India from using drawdown flushing for sediment control at the KHEP and any future run-of-river plant on the Western Rivers. (For more information on the Partial Award and the background to the dispute, please see my ASIL Insight on the Partial Award available here and here.)

In its Final Award, the CoA determined the minimum downstream flow of water to be ensured by India. The Parties’ submissions for the second phase of the proceedings included data on the water flow in the Kishenganga river, effect of the minimum flow of water on power generation, agriculture uses in the Neelum valley, and the environmental impact of the KHEP. The CoA described its task in the second phase of the proceedings as follows:

Taken as a whole, the task facing the Court — now having the benefit of significantly more information and analysis from the Parties — is to determine a minimum flow that will mitigate adverse effects to Pakistan’s agricultural and hydro-electric uses throughout the operation of the KHEP, while preserving India’s right to operate the KHEP and maintaining the priority it acquired from having crystallized prior to the NJHEP. At the same time, in fixing this minimum flow, the Court must give due regard, in keeping with Paragraph 29 of Annexure G, to the customary international law requirements of avoiding or mitigating trans-boundary harm and of reconciling economic development with the protection of the environment.

(Final Award, para. 87)

Having considered the Parties’ submissions, the CoA decided that “India shall release a minimum flow of 9 cumecs into the Kishenganga/Neelum River below the KHEP at all times at which the daily average flow in the Kishenganga/Neelum River immediately upstream of the KHEP meets or exceeds 9 cumecs.”

However, it also held that “[a]t any time at which the daily average flow in the Kishenganga/Neelum River immediately upstream of the KHEP is less than 9 cumecs, India shall release 100 percent of the daily average flow immediately upstream of the KHEP into the Kishenganga/Neelum River below the KHEP.” (Final Award, p. 43)

The CoA allowed the Parties to seek a reassessment of the minimum flow through the mechanisms in the Indus Water Treaty 7 years after the diversion of water from the Kishenganga river for power generation at the KHEP. Finally, the CoA noted that the “Final Award imposes no further restrictions on the operation of the KHEP” (Final Award, p. 43)

With respect to India’s request for a clarification, as to whether the CoA’s prohibition on the use of drawdown flushing contained in the Partial Award applied only to the KHEP or to all/any future hydroelectric projects on the “Western Rivers” under the Indus Waters Treaty, the Court issued a separate Decision on 20 December 2013, finding that the prohibition on drawdown flushing is of a “general application”, and is not limited to the KHEP alone.

An Indian company goes treaty shopping…

Amidst reports of yet another investment treaty arbitration against India over the cancellation of 2G licenses by the Indian supreme court (ToIIE), the ICSID has registered an arbitration that may well represent the first time an Indian TNC has gone treaty shopping.

According to its website, on 27 September 2013, the ICSID registered an arbitration proceeding initiated by Spentex Netherlands, B.V., against the Republic of Uzbekistan (ICSID Case No. ARB/13/26). A quick Google search reveals that the Claimant in this case, Spentex Netherlands, B.V., is actually a subsidiary of Spentex Industries Ltd., a textile company registered and incorporated in New Delhi and managed by Indian nationals. The 2012-13 Annual Report of Spentex Industries Ltd. provides some insight on the relationship between the Indian parent and the Dutch and Uzbek subsidiaries. Note 42 of the Financial Statement states that:

The Company [Spentex Industries Ltd.] has an investment of Rs. 56,10,11,339 [approx. USD 89,83,362] and Rs. 93,23,779 [USD 1,49,301] in its subsidiary Spentex Netherlands B. V. (SNBV) and its step down subsidiary Spentex Tashkent Toytepa LLC (STTL) respectively. Further it has Rs. 7,00,12,404 as export receivable from STTL and advances of Rs. 9,50,70,902 in SNBV as on March 31, 2013.

The ICSID website does not yet give any further details about the arbitration, except that its subject matter relates to the “Textile Industry.” Spentex India’s statements provide some insight on the details of the dispute. Spentex India describes its version of the developments in Uzbekistan in a press release (apparently) dated 31 May 2012:

An Indian investor SIl (Spentex) through its project company STTL invested and commenced its business in Uzbekistan in right earnest and made investment vide Investment Agreement dated 26th September 2006 entered between the Government of Uzbekistan and Spentex (investor). However, in the midst of term of the Investment Agreement certain changes in legal provisions, economic and business conditions and policies were adversely changed by the authorities in Uzbekistan. These changes being contrary to the provisions of Investment Agreement jeopardized the legal stability of its project company and its business became completely unviable. Spentex made many representations to Uzbek authorities and its financers for rectifying the situation but the same went unheard and ultimately project company was forced to shut down all its factories in Uzbekistan and bankruptcy was thrust upon it. Harassment by tax authorities and prosecutors was another reason which never allowed STTL to function normally as arbitrary penalties were imposed and pressure from the prosecutor was a common feature

The arbitration proceeding also finds a mention in Spentex India’s 2012-13 Annual Report:

During the period of investment Government of Uzbekistan changed certain laws and policies by breaching the investment agreement and rendered operation of STTL unviable. Since treaties entered between the Governments of India and Uzbekistan and the Investment agreement entered between Govt. of Uzbekistan and STTL were breached, company has issued notice claiming in excess of USD 100 Mn. towards protection of investment and payment of dues & compensation for the losses suffered by the company.

Interestingly, although the above quote from the Annual Report refers to the the bilateral investment treaty (BIT) between India and Uzbekistan being breached, the claimant in the arbitration proceeding is the Dutch subsidiary of Spentex India, suggesting that the claimant has sought protection under the Netherlands-Uzbekistan BIT. This is not unusual, as transnational corporations investing in foreign countries often structure their investments through a subsidiary in The Netherlands in order to avail the benefits of the vast network of Dutch BITs. The IISD, in a critical piece, notes that Dutch BITs “invite[] ‘treaty shopping,’ – i.e. routing investments through third countries to acquire the protection of investment treaties that investors would not, otherwise, have in their home state jurisdiction.” Even though the merits of the practice continue to be debated, there is no general international legal rule prohibiting investors from structuring their investments in a manner that allows them to avail of the greater protection available under certain treaties.

This development is interesting because it, once again, shows the blurring of the traditional capital-importing/capital-exporting dichotomy in discussions on investment treaties and investment arbitration. While investment treaties and investment arbitration may initially have emerged in a world where capital exporting countries primarily sought to protect their investors operating in capital importing countries, the scenario today does not allow for such a clear distinction to be easily drawn as traditional capital exporting countries gradually find themselves fending off claims by foreign investors. This, for example, is reflected in the evolution of the United States BIT program, which was focused mainly at investment protection abroad in its early days. In recent times, however, as the flow of investments into the United States has increased, its BITs have evolved to take into account not just the need for protecting investments abroad, but also the impact of such treaties and claims by foreign investors on the domestic regulatory space available to the government.

Faced with several claims by foreign investors under different BITs, there has been widespread criticism of the Indian BIT program as being too “pro-investor.” The Indian government has gone back to the drawing board and is currently reviewing its BITs. Cornered by the many treaty claims it faces, the government may well see BITs and investment arbitration as liabilities that expose it to unnecessary international litigation. However, as the Spentex case well illustrates, Indian investors are also increasingly investing abroad. Given the reciprocal basis of BITs generally, if India dilutes the standards of substantive and procedural protection in its BITs in immediate response to the claims filed against it, this would also weaken the protection available to Indian investors abroad. Therefore, as India undertakes to review and rationalize its BIT program, it must strike a careful balance between its domestic regulatory interests, on the one hand, and the interests of the Indian investor abroad, on the other. In its attempt to shield itself from claims by foreign investors, India should not deprive its own investors the benefits and protection promised by BITs.

Hat-tip to Aditya Singh for the alert about the Spentex arbitration.

R.P. Anand Scholarship 2014: Application Open

Just a plug: the R. P. Anand Memorial Committee invites applications for its 2014 annual scholarship for post-graduate students of international law from all parts of the world. The deadline for applications is 30 November, 2013. More details about the scholarship can be found here.

Prof. Anand was one of the greatest international lawyers from India, contributing most notably to the development of the modern law of the sea, as well as shedding new light on the history of international law and the role of Asian and African States in its development. The Scholarship is a wonderful way of celebrating his life and work. Readers may also be interested in the electronic collection of Prof. Anand’s works available on the website of the R.P. Anand Virtual Centre of International Law.

An Update on Investment Treaty Arbitrations Against India

Over the past year or so India has been involved in a number of disputes with foreign investors which are at various stages of settlement. Discussions to reach a settlement are apparently underway in the dispute initiated by Vodafone against the retrospective capital gains tax sought to be imposed by the government, although the FT notes that a settlement is “highly unlikely until after India’s forthcoming national election in 2014, if at all.”

Negotiations have failed to yield result in at least two other disputes, leading to the initiation of arbitration under some investment treaties. An arbitral tribunal has been set up in a dispute initiated by “Devas Multimedia and its U.S. associates (who invested in the deal through foreign direct investment routed via Mauritius) against the Government of India following the cancellation of the deal for the launch of two satellites and the allocation of S-band spectrum to Devas.” The arbitration has been commenced under the India-Mauritius BIT and will be held under the UNCITRAL Rules with the Permanent Court of Arbitration in The Hague acting as the registry. The tribunal comprises of Canadian lawyer and politician Marc Lalonde QC (presiding arbitrator), Chilean lawyer and currently a Judge ad hoc at the ICJ Francisco Orrego Vicuña, and the former Chief Justice of Rajasthan High Court Justice Anil Dev Singh. The investor-claimants are being represented by lawyers from Skadden, Arps, Slate, Meagher and Flom, LLP. India is instructing lawyers from the Indian law firm Khaitan & Co. and Curtis, Mallet-Prevost, Colt and Mosle, LL.P.

Reports also suggest that an arbitral tribunal has been constituted in a dispute initiated by ByCell, a telecommunications firm incorporated in Switzerland and owned by a Cypriot company and Russian nationals, under India’s BITs with Cyprus and Russia. The Lex Arbitri blog offers some information on the events leading to the dispute. According to the Economic Times, India has appointed Professor Brigitte Stern as its party appointed arbitrator. Details about the other arbitrators are not yet public. Curtis will also represent India in this proceeding.

On the appointment of Prof. Stern, the Indian government is apparently of the view that “[a] strong arbitrator will ensure that government’s case is represented effectively”. While this view stresses the importance of party appointed arbitrators, I think the Economic Times goes a bit far in claiming that India has “rope[d]” in “Brigitte Stern to take on Swiss telco ByCell”.  The institution of party appointed arbitrators is a common feature of international adjudication. Parties regularly choose their arbitrators in international proceedings and even the ICJ allows States to appoint ad hoc Judges for disputes in which a State party does not have a Judge of its nationality on the Court. In a diverse international legal order, party appointment can serve a useful purpose as it allows the parties to choose a person who, in their opinion, can best understand their concerns, position and culture, and can effectively explain these to his or her fellow adjudicators. India’s reason to appoint Prof. Stern appears to be reasonable in so far as it is based on India’s belief that Prof. Stern is best placed to understand the concerns of developing host-States as respondents in investment arbitration. But, now that Prof. Stern has been appointed, she also has certain obligations of independence and impartiality as a judicial member of the tribunal. To say that she has been appointed by India to “take on” ByCell presents an inaccurate picture of the role and function of an arbitrator in a proceeding of this nature. India’s lawyers will be “taking on” ByCell, not the arbitrator appointed by India.

On a related note, the issue of India’s BITs recently came up for discussion in the Indian parliament. A Member of Parliament inquired how many BITs India had concluded. In response, the Minister of State for Commerce stated that India has concluded BITs with 82 States, of which 72 BITs have come into force. He also stated that India has paid Aus $ 98,12,077 to White Industries following the award against India. Interestingly, the Minister noted that, in light of its loss in the White Industries arbitration, India is now reviewing the text of its model BIT.

Hat tip to Aditya Singh for sharing the Economic Times article on the ByCell arbitration.

India seeks clarification in Kishenganga

According to this report, India has sought a “clarification or interpretation”of the Partial Award of February 18 in the Indus Waters Kishenganga Arbitration (Pakistan v. India). India reportedly has sought clarification over the prospective, binding nature of the Court of Arbitration’s ruling in the “Second Dispute” relating to the use of a technique of sediment management called “drawdown flushing”. To recall, in the Partial Award, the Court of Arbitration had held that India was prohibited from using drawdown flushing at the Kishenganga project or any future run-of-river plant on the Western Rivers, which are allocated to Pakistan under the Indus Waters Treaty. India presumably wants a clarification of the second part of the ruling, i.e., whether India is prohibited from using drawdown flushing at any future run-of-river plant on the Western Rivers. This raises very interesting issues relating to the tribunal’s jurisdiction and judicial remedies under international law generally. I hope to discuss some of these issues in future posts, but for now if you’re interested in learning more about the Partial Award, you can read my recently published ASIL Insight on the topic.

India Wins the 2013 Jessup World Championship!

This is news just coming in…. India, represented by the National Law School of India University, Bangalore, has won the world championship round of the 2013 Philip C. Jessup International Law Moot Court Competition. In the final round held today in Washington, D.C., NLS argued against Singapore Management University before a bench of distinguished judges from the International Court of Justice. This is only the second time India has won the Jessup Moot. NLS had earlier won the Moot in 1999, as well.

Members of this year’s championship winning team are: Mr. Raag Yadava, Ms. Geetha Hariharan, Ms. Shreya Jain and Ms. Akshaya Ramadurai. Congratulations to them! Congratulations are also in order for Raag for winning the Best Speaker award in the final round!

Having served as the team adviser, I have witnessed their hard-work and zeal over the past seven months and can only confirm that the victory is very well deserved and is a fitting reward for all their dedication and commitment. Congratulations, Raag, Geetha, Shreya and Akshaya! Hopefully, your personal achievement will also serve as a fillip for the professional project of international law in Indian law schools. For now, celebrate (and sleep) well!

New Issue: Trade, Law and Development

The latest issue of Trade, Law and Development, a journal published by the students of National Law University, Jodhpur (India), has just been published. Contents include:

Articles

Human Rights and International Economic Law ABSTRACT PDF
- Ernst-Ulrich Petersmann 283-314
Investment Treaty Breach as Internationally Proscribed Conduct: Shifting Scope, Evolving Objectives, Recalibrated Remedies? ABSTRACT PDF
- Mavluda Sattorova 315-352
Doha Round Negotiations: Problems, Potential Outcomes and Possible Implications ABSTRACT PDF
- Surendra Bhandari 353-384
Notes and Comments
Challenges in Intellectual Property Governance: Providing the Right Incentives in the Quest for Global Innovation ABSTRACT PDF
- Daniel Gervais 385-399
A Note on the Appellate Body Report in the Chinese Minerals Export Restrictions Case ABSTRACT PDF
- Mitsuo Matsushita 400-420
A Balancing Act: Using WTO Dispute Settlement to Resolve Regional Trade Agreement Disputes ABSTRACT PDF
- Felicity Hammond 421-450
Book Review
A Review of Sonia E. Rolland, Development at the World Trade Organization (Oxford Univ. Press 2012) PDF
- Nicolas Lamp 451-471

As a consulting editor for TL&D, I would like to congratulate the Editors for putting together another wonderful Issue!

Indian Supreme Court on Jurisdiction over the Italian Marines

Although the dispute between India and Italy seems to have been abated for now, a closer look at the Supreme Court’s judgment of 18 January 2013 finding that India had jurisdiction to prosecute the marines is important. Chief Justice Kabir and Justice Chelameswar delivered separate but concurring opinions.  In its judgment, the Court found that India had jurisdiction over the Italian marines. Specifically, the Court – reasoning through a curious blend of international and domestic law – quashed the proceedings before the Kerala High Court, directing the federal Government to set up a special court to try the marines. Interestingly, however, the Court refused to answer whether the marines enjoyed  immunity by virtue of their status as members of the Italian armed forces (presumably leaving it for the trial court to decide the issue).

Readers would remember that the Kerala High Court had earlier dismissed Italy’s arguments on the extra-territorial application of the Indian Penal Code (IPC) and the Suppression of Unlawful Activities Act, and sovereign immunity of the two marines before Indian courts. The same contentions were raised before the Supreme Court (Italy’s arguments are summarized from paragraphs 13-46; India’s from 47-71; and, the state of Kerala’s from 72-81).

The questions before the Court were simple enough: did India lack jurisdiction to try the marines? If not, could this case be tried by the State of Kerala or the Indian Union? In formulating the issues, the Chief Justice (paragraph 82) and Justice Chelameswar (paragraph 2) oddly excluded the issue of sovereign immunity, despite arguments raised by Italy (paragraph 42) and India (paragraph 66) specifically on that point.

Addressing the question of territorial jurisdiction and that alone, the Chief Justice’s primary opinion proceeded along two lines of argument (given the finding that the incident occurred 20.5 nautical miles off the Indian coast, in the Indian contiguous zone): first, whether Kerala – as a federal unit within the Indian Union – had the jurisdiction to try the marines; and second, whether the Indian Union (India itself) possessed that competence.

(As a preliminary note, given that a negative conclusion on the second question would have precluded any discussion on the first, the judgment should perhaps have addressed the questions in the reverse order. In fact, in addressing the first question, the Court reached the conclusion that “the Union of India (is entitled to) to take cognizance of, investigate and prosecute persons who commit any infraction of the domestic laws within the Contiguous Zone.” (para 84) Having said this, the Court has already assumed a positive answer to the second question, which it then subsequently ‘considered’ for the remainder of the judgment.)

That apart, the first issue before the Court revolved around the effect of Notification No. SO 67/E (1981) under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (“TW Act”), which extended the application of the IPC to the Exclusive Economic Zone (“EEZ”). The Chief Justice concluded that though the Maritime Zone Act extended the application of the IPC to the EEZ (and thus the Contiguous Zone), the incident lay beyond the territorial jurisdiction of Kerala, which coincided with its territorial waters. The effect of the Notification then was to extend the powers of the Indian Union, and not of a federal unit within it. (A) Similarly, the Court held that the inclusion of Section 188A to the Code of Criminal Procedure (which extends Indian criminal jurisdiction to the EEZ) does not expand Kerala’s local jurisdiction and fails to justify the prosecution in the courts of Kerala. Equally, the Court considered this conclusion proper as a dispute between two nations took the matter “to a different level”, making a federal unit’s involvement incorrect as a matter of law. (B)

On the second question, the Court correctly identified the issue as whether India can exercise penal jurisdiction in its contiguous zone outside the limited rights granted under Article 33 of the UNCLOS. The Chief Justice’s judgment seems to rely primarily on the decision in Lotus (discussed previously here) which permits the exercise of jurisdiction on the passive personality principle. In doing so, the Court considered whether the subsequent addition of Article 97 of UNCLOS (and Article 11 of the Geneva Convention) to the legal regime had rendered the decision in Lotus inapplicable. Thus, in deciding that this case did not involve an ‘incident of navigation’ under Article 97 (for example, a collision), the Chief Justice followed Lotus. Justice Chelameshwar, in his concurring opinion, discarded Article 97 on alternate grounds, i.e. Part VII of the UNCLOS (in which Article 97 figures) applies only to the high seas and not to the EEZ (a conclusion that can be, and has been, disputed).

Importantly, and perhaps this is a fact that escaped media interest, the Court did not decide the question of jurisdiction conclusively. Rather, it noted that this judgment “will not prevent the Petitioners herein in the two matters from invoking the provisions of Article 100 of UNCLOS 1982, upon question of jurisdiction of the Union of India to investigate into the incident and for the Courts in India to try the accused may be reconsidered.(C)

Given the breadth of the judgment, I will offer only a few preliminary thoughts here. On point A, the Court’s holding that neither Section 188A nor the Notification under the TW Act extended Kerala’s jurisdiction fails to enter several crucial debates, I have three comments. First, Section 188A – an amendment to the CrPC – was introduced by a Government Notification under Section 7 of the TW Act. In recognizing that such additions can be made only by Parliament, the Kerala High Court had disregarded Section 188A per se, but accepted the extension of Indian penal jurisdiction to the EEZ (based solely on the intention of the notification). However, while Section 7(7) permits the extension of any enactment to the EEZ, this is limited by Section 7(4) which recognizes the powers of the Union in the EEZ (along the lines of Article 56, UNCLOS). Crucially, the power to legislate for criminal conduct does not find a mention here (and this is so by design (Vol. III, pg. 61) and supported by subsequent state practice and judicial opinion). Second, as a matter of form, Section 7(7) permits the extension of the territorial scope of an enactment, rather than an amendment to the CrPC itself – the amendment of which should be dictated by Parliament alone. This is also important because of a distinction that the Court fails to recognize between Section 4, IPC/Section 188 CrPC and the facts of this case/Notification 671. The former permit prosecution of Indian citizens (on the active personality principle), while the latter dilute the principle to instances of passive personality jurisdiction (Indian national is the victim). The question then is not only of extending the scope of Indian penal jurisdiction territorially, but substantively, through executive action. Third, assuming the Indian union does have jurisdiction, the Court’s view that this does not extend Kerala’s jurisdiction does not appear appealing (though perhaps pragmatic from a diplomatic standpoint). This is because Notification 671 (on which the judgment relies) creates a deeming fiction which permits prosecution “as if it had been committed in any place in which he may be found”. Similar wording is found in Section 188 of the CrPC, and has been consistently held to allow the State in which the accused is found to continue prosecution (for example, Clara v. Tamil Nadu).

On point B, the Court considered the exclusion of Kerala’s jurisdiction proper as a matter of public international law. With respect, however, neither does public international law address the manner in which states structure their internal criminal processes, nor would any such rule apply since the Court (presumably) rejected the sovereign immunity defence, thus making the Italian marines liable as individuals and not representative organs of the Italian state.

On point C, the holding that international law permits the exercise of jurisdiction in this case, following Lotus, the Court’s conclusion is uncertain given the its remarks that Lotus has been watered down (paragraph 98; also see a previous post on this issue here, and the joint Separate Opinion issued by Judge Higgins, Koojimans and Burgenthal in Arrest Warrant here). In doing so, the Court failed to state whether international law permits such action (and if so, where may one find such a rule in the UNCLOS or under custom) or whether the absence of a prohibition suffices. In fact, the Court’s insistence on identifying the sovereign rights a state may exercise in the continuous zone was perhaps the incorrect question to begin with. This case does not involve the exercise of sovereignty (or more appropriately, jurisdiction) over an identifiable maritime space, but over the accused marines. This distinction is not one without reason: the exercise in this case is to identify whether public international law permits exercise of jurisdiction on the passive personality principle, which addresses the identity of the victims, and not the territorial space where the crime occurred.

Second, the Court’s handling of Article 100, UNCLOS is unclear. Not only does the text of Article 100 omit any reference to a redistribution of jurisdiction between states, but more fundamentally, omits any substantive obligation through the most generous of readings (the drafting history makes this conclusion clear, pg. 183). It seems then that the Court’s judgment relies too heavily on Article 100 for something that it does not address.

More generally, the Supreme Court’s judgment remains imprecise on the relationship between international law and (domestic) Indian law in such disputes. Ordinarily, it would be necessary to first identify a basis for exercising jurisdiction in Indian law (point A), and then proceed to test the validity of that determination against international law (point C), or use international law to colour the reading of domestic law. In addressing both questions together, the judgment perhaps sacrifices much needed clarity.

It’s official: Italian Marines won’t return; Italy initiates international dispute against India

According to a press-release issued by the Italian Ministry of Foreign Affairs today, the Italian marines facing trial in India for the shooting and killing of Indian fishermen off the coast of Kerala will not be returning to India. “Returning?”, you might rightly wonder, considering that the marines are under trial in India and have spent the past year or so imprisoned there. Turns out that the marines were allowed to go to Italy by the Indian Supreme Court to vote in the Italian parliamentary elections. (Now we know what happened in Italy!) Apparently, according to an Indian lawyer representing the marines, “[t]he judges were sympathetic to the marines’ request to exercise their democratic right of casting their votes”.

As a preliminary matter, and correct me if I am missing something here, I have many dear Italian friends residing outside Italy, and all of them voted in the national elections by postal ballot. I wonder what made the Indian Supreme Court think that the marines needed to be physically present in Italy to exercise their franchise, when even the Italian government’s own website details the procedure of voting by post for Italians resident overseas. And, if the Court didn’t notice, why didn’t the counsels for the Indian government not point this out? Seems to me the curious case of a gun and a foot.

I should also note that this is not the first time the marines were given home leave to visit Italy. Last December, the High Court of Kerala had allowed the marines to go home to celebrate Christmas and the New Year with their families in Italy. Then, as well as now it seems, the Italian government, through its embassy in Delhi, submitted an undertaking in the Court guaranteeing that they would return to India and face trial. At the end of the first visit, the Italian government lived by its promise, and return they did in January. This time, however, things aren’t looking so nice. To refer to the Italian Ministry of Foreign Affairs press-release: “Italy informed the Indian government that, given the formal establishment of an international dispute between the two States, the riflemen Massimiliano Latorre and Salvatore Gironel will not return to India at the end of the permission granted to them” (Google translation).

Formal dispute? Yes. We know that following the arrest of the Indian marines in the Indian port of Kochi, Italy has persistently maintained that India lacks jurisdiction to try the marines. Even if the  Indian courts had jurisdiction, Italy argues that the marines would be protected by immunity by virtue of their position in the armed force. In India, these issues were thought to have been settled by a judgment of the Supreme Court, holding that India has jurisdiction to try the marines under its domestic criminal laws, and that any plea relating to immunity could only be raised and addressed during the actual trial process, and not a supreme court proceeding. Italy obviously disagrees with the Supreme Court’s ruling, and believes that it is contrary to India’s obligations under international law. Referring to the press-release again:

Italy has always held that the conduct of the Government of India violated the international law obligations imposed on India by virtue of customary law and treaty law, in particular the principle of immunity from the jurisdiction of the foreign state bodies and the rules of the Convention United Nations Convention on Law of the Sea (UNCLOS) of 1982.

In the aftermath of the judgment of 18 January 2013 of the Supreme Court of India, Italy has formally proposed to the Government of New Delhi, the start of a bilateral dialogue in the search for a diplomatic solution to the case, as suggested by the Court, where drew the hypothesis of cooperation between States in the fight against piracy, as envisaged by the above UNCLOS.
In light of the lack of response of India to the Italian request to enable such cooperation, the Italian Government considers that there is a dispute with India concerning the rules as contained in the Convention and general principles of international law applicable to the case.

Against this backdrop, the Italian ambassador in Delhi delivered today a note verbale to the Indian government notifying it of a formal dispute and expressing Italy’s

willingness to reach an agreement on a resolution of the dispute through international arbitration or judicial settlement, asking India to activate the consultations provided for in UNCLOS.

So why is it that the marines returned after their Christmas holiday in January, but will not be coming back this time? The answer seems to be in the Supreme Court of India’s judgment delivered on 18 January, after their return. The Court upheld India’s jurisdiction to try the marines. Up until then, Italy was obviously hopeful that the Supreme Court would side with its position. But with this judgment, it became clear that the prosecution in India would go ahead. And so, when the time came for the marines to board their return flight, following the great satisfaction that accompanies any voting exercise, they simply declined!

With this background, I hope to return soon with my thoughts on what lies ahead. For now, I hope that the Indian Supreme Court and the Government are happy with the results of the Italian elections (quite similar to what happens in India after every election), and the role they played in it!