The Enrica Lexie Incident and International Law: Some Preliminary Thoughts

I am sure all are aware of the recent turn of events involving the Italian ship M/V Enrica Lexie off the Indian coast of Kerala. In this post, I will try to present a reductionist perspective of the problem and comment upon the relative strengths of India and Italy’s arguments, the eventual goal being to parse through the technical details that have been sporadically filtering through the media and elucidate the the basic legal framework which can then be applied to the facts as and when they become clearer.

Already, the incident has created great interest amongst the Indian and Italian press and media. Other’s who have chipped in with their opinions include Meghnad Desai (comparing the Enrica Lexie incident to the one involving Indian children being taken into care by Norway, he asks: “[b]ut the two disputes do pose a paradox in justice. If we apply domestic law, the Italian naval personnel are to be tried in a Kerala court. But then are the children of the Bhattacharyas legitimately held by the Norwegian welfare agencies?”) and K. R. A. Narasiah (arguing “that Italy is wrong on sea law”).

MV Enrica Lexie off Kochi Source: Aijaz Rahi/Associated Press

Conflicting Factual Narratives

Although the exact factual circumstances still remain clouded, a broad overview of the conflicting narratives by India and Italy is perhaps still in order. India claims that the fishing boat, St. Antony, carrying 11 unarmed crew reported being fired upon at  2150 hrs, 2 or 3 nautical miles off the coast of Kollam in Kerala. Of the 11 fishermen, 9 were sleeping and the two awake were shot. In total, India claims that 20 shots were fired by the two Italian marines. Moreover, India claims that no warning shots were fired by the marines, who took the fishing boat to be a pirate vessel. Italy, on the other hand, claims that at 1600 hrs, while navigating 33 nautical miles off the Indian coast, a twelve meters boat with six armed men was spotted approaching the Italian tanker. It kept nearing even after the soldiers showed their guns at which point they opened fire in the air and in the water and the  boat turned away without any one being hit. Enrica Lexie immediately reported the incident to authorities in Rome. In addition, Italy also claims that the ship was tricked into coming to Cochin Port by a message from the Indian Coast Guard by reporting that they were holding a boat with arms on board, prospecting it could have been the one involved in the incident of the afternoon and inviting the Italian crew and marines to give their statements (see here, for example). For our purposes, I would only like to emphasize the different accounts of the position of the ship during the incident: Italy says that satellite data confirms that the ship was 33 nautical miles of the Indian coast, whereas India says it was 2-3 nautical miles off the Indian coast.

Current Situation

The situation, at the time of writing, is that the marines have been taken into custody by the local Indian police and have been sent to a 14 day judicial remand. A first information report has been filed against the Italian crew, and the Indian police have been on board the ship to gather evidence. The two marines have been charged with murder under the Indian Penal Code (IPC). Currently, the ship is docked in Kochi (apparently, parking space there seems quite expensive by even the most expensive car-park standards ~ 4 mil. INR). The Italians have reportedly also filed a habeas corpus petition before the Kerala High Court. Italian diplomats have been arriving in India on the clock, and have met the arrested marines. A senior Italian minister is expected to arrive in Delhi this week. Meanwhile, back in Italy, the authorities have started their own national investigations into the incident. Thus, the judicial processes have been set into motion in both countries, with India having a tangible advantage because of its custody of the marines.

Legal Disagreement

Getting into the legal issues, the disagreement between the two state seems to be centered around two issues: jurisdiction; and, diplomatic immunity. In this post, I hope to address the issue of jurisdiction, since the disagreement there concerns whether the Indian courts even have the power to try this case. This, therefore, is a preliminary issue that requires to be addressed first.

Jurisdiction under International Law

On the role and importance of jurisdiction (or the authority to decide on an issue) under international law of the seas, Natale Klien provides a concise explanation:

Law enforcement powers are essential to enable states to respond to maritime security threats. Although this point is simple enough in itself, the laws according states jurisdiction are complex because of the different rights and obligations recognized in the various maritime zones. The regulation of activities at sea is dependent on what authority states have in any given maritime area or over any particular vessel or installation or structure located at sea. The ability of a state to undertake law enforcement not only varies because of the different rights and duties existing in the different maritime zones, but also according to what particular threat to maritime security is being addressed. While there is a general interest in upholding order at sea, the accepted responses to achieve order have been countered by other interests, especially the importance of territorial integrity and the corollary of maintaining exclusive rights over vessels that are flagged to the state. This balancing act is constantly at stake in seeking to prevent and respond to maritime security threats. (Natalie Klein, Maritime Security and the Law of the Sea (OUP, 2011), p. 62)

She goes on to explain the nuanced picture of jurisdiction painted by International law: prescriptive jurisdiction refers to refers to the power to adopt legislation and other rules; and, enforcement jurisdiction refers to the power to give effect to those rules through police and/or judicial action. Moreover:

States are entitled to exercise jurisdiction on the basis of different connections that a particular activity might have with them. The bases of criminal jurisdiction most commonly recognized are territorial; nationality; passive personality; universal; and protective. Territorial jurisdiction entitles a state to regulate persons and activities within its territory. Nationality jurisdiction allows states to regulate the activities of persons who have the nationality of that state. On the basis of passive personality, a state may exercise criminal jurisdiction over a person who has committed offences that are harmful to nationals of that state. Universal jurisdiction refers to jurisdiction over particular activities that are considered so heinous (notably, piracy and war crimes) that all states may exercise jurisdiction over the perpetrators of those crimes irrespective of any other link a state may or (p. 63 ) may not have with the acts in question. Protective jurisdiction entitles states to exercise jurisdiction over activities considered prejudicial to the security of the state. As may be readily perceived, each of these bases of jurisdiction may be brought to bear in addressing maritime security threats, especially territorial, universal, and protective jurisdiction.

A state must lawfully exercise prescriptive jurisdiction in order for the possible exercise of enforcement jurisdiction to arise.

(FN omitted, emphasis supplied).

Can Indian Courts Try the Accused Italian Marines?

With this brief excursion into the concept of jurisdiction under international law, let us now turn back to whether international law provides Indian courts the jurisdiction to try the Italian marines for their alleged shooting of Indian fishermen. For our purposes, the relevant treaty is the UN Convention on the Law of the Seas 1982 (UNCLOS), to which India and Italy are parties, and the relevant Indian legislation isThe Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976.

The UNCLOS and the 1976 Act establish the following regime for the coastal state’s (here, India’s) jurisdiction:

Territorial Sea: breadth of of up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the UNCLOS. (Art. 3 UNCLOS) The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. (Art. 2 UNCLOS). For our purposes, the 1976 Indian Act in Section 3 provides that “[t]he sovereignty of India extends and has always extended to the territorial waters of India and to the seabed and subsoil underlying, and  the air space over such waters.” Thus, the Indian Penal Code, under which the marines are charged, is an exercise of prescriptive territorial jurisdiction. In other words, India can exercise both prescriptive and enforcement jurisdiction in the territorial sea on the issue of security (taking the killing of fishermen to be this issue).

Beyond the territorial sea lies the contiguous zone, extending not beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. (Art 33, UNCLOS) The 1976 Indian Act also defines the contiguous zone as such. This is an interesting region because it marks a divergence in the prescriptive jurisdiction under the UNCLOS and the 1976 Indian Act. Art. 33 of the UNCLOS provides in part that a coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; and, (b) punish infringement of the above laws and regulations committed within its territory or territorial sea. The 1976 Indian Act adds one more item to the list of areas coastal states can exercise their prescriptive jurisdiction in by legislating rules: the security of India (Art. 5(4) 1976 Act). This is not a conflict, for the UNCLOS only states that a coastal State “may” legislate to regulate the two areas, and the Indian Legislation goes beyond and adds one to the list. Moreover, there is considerable state practice in support of states exercise prescriptive jurisdiction for security matters in the contiguous zone (see table on p.14 here, and Alan Vaughan Lowe and R. R. Churchill On the Law of the Sea, pp.116-118 here).

Interestingly, under the 1976 Indian Act, unlike for territorial waters, India does not have complete sovereignty over contiguous zones. Instead, under Section 5(4), the Central Government may exercise such powers and take 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. For example, one exercise of prescriptive jurisdiction in the contiguous zone is Section 2(28) of the Indian Customs Act, which defines “Indian customs waters” as the contiguous zone, within which Indian customs authorities have the power to arrest people (104), stop and inspect any ship (106), and open fire if a ship fails to stop (115(1)(c). Contrary to this, to my knowledge, the Parliament has not legislated on the subject of security in the contiguous zone. In this regard, the Indian Penal Code does not say anything about its extension over contiguous zone, whereas the Central Government has the explicit authority to extend its application over this region (Section 5(4)(b) 1976 Act). Thus, for the purposes of Indian courts criminal jurisdiction, this would mean the exercise of extraterritorial jurisdiction.

Exclusive Economic Zone: The EEZ concept is an innovation of the UNCLOS at the international level. It is reflected in the 1976 Indian Act, as well, and extends to 200 nautical miles from the appropriate baseline. Within the EEZ, states have the prescriptive jurisdiction to regulate exploitation of economic resources, scientific research, marine environment and artificial structures. This too, then would imply the exercise of extraterritorial jurisdiction by Indian courts.

This then establishes the importance of the exact location of the incident. For if the shooting took place 2-3 nautical miles from the coast, as India claims, it would be within the territorial waters, and therefore Indian courts could exercise their territorial jurisdiction under the IPC and Code of Criminal Procedure (Cr. PC). If, however, the incident occurred beyond 12 nautical miles from the baseline, take the 33 nautical miles which Italy claims for example, Indian courts would be exercising their extraterritorial jurisdiction under the IPC and the Cr. PC.

As noted in the quote from Klein above, extraterritorial jurisdiction may be exercised on several basis. Indian law, that is, the IPC and the Cr.PC, allows the exercise of extraterritorial jurisdiction on the basis of nationality. Thus, Section 4 of the IPC provides, in part:

Extension of Code to extra-territorial offences.–The provisions of this Code apply also to any offence committed by– (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be.

If the incident occurred beyond 12 nautical miles Indian courts can only have jurisdiction over offenses committed by a citizen of India, or a ship registered in India. Since, in the present case, the accused are marines of Italian nationality and the ship is also registered in Italy (contrary to what Meghnad Desai seems to think, see this), Indian courts do not have the extraterritorial jurisdiction to try the marines. This could be a basis for the Italian writ petition in the Kerala High Court. In fact, in a prior case (Raymund Gencianeo v.State of Kerala, 2004 Cri. LJ 2296), the Kerala High Court has held that:

Since the case of the prosecution is that the occurrence took place when the ship was 850 miles away from seashore, even if that 850 miles is taken as nautical miles or land miles, it is clear that the offence is alleged to have been committed by a foreign national in foreign vessel outside the territory of India. The Indian Courts have no jurisdiction to try an offence which is alleged to have been committed by a foreign national in a foreign vessel outside the territory of India and hence the proceedings in the case are liable to be quashed. (para. 6)

The facts in that particular case involved a Philippine national, who was a crewmember of a Japanese vessel, being prosecuted for the offence punishable under Section 307 of the IPC, alleging that he attempted to commit murder of the Captain and Chief Officer of the ship while he was on board the ship, 850 miles away from the Kochi coast. The accused was arrested on 29.11.2002 and placed in judicial custody. While the case against him was pending before the First Additional Assistant Sessions Judge, Ernakulam, he sought to quash the proceedings by contending that the courts in India have no jurisdiction to try the case since the allegation is that a foreign national committed the offence in a foreign vessel while the vessel was outside the territory of India.

Returning to the present, nobody is claiming that the ship was 850 miles off the coast of India. Nevertheless, this judgment does seem to suggest that Indian courts can only exercise criminal jurisdiction over foreign nationals on foreign ships if they are within the territorial waters of India (12 nautical miles).

In sum, the location of the shooting incident is of utmost importance. If it is not within 12 nautical miles, going by the above account, the trial court in Cochin may not have jurisdiction over the alleged offense. Of course, this is qualified by the presence of any government regulation extending the IPC over the EEZ — something which to my knowledge doesn’t exist.

Assessing Indian Reactions

While researching on the facts for this post I came across an interesting Indian reaction on the jurisdiction issue in The Hindu:

But India points to Section 4 of the Indian Penal Code, which says any crime committed against an Indian or on an Indian vessel, “wherever it may be,” can be tried in India.

“So there is extra-territorial application of both Indian and Italian laws. We understand that but as representatives of India, we will go by the legal process here. There are differences with Italy on the facts, procedure and processes, but we are willing to engage with them. If they so desire, we will provide consular access to the two marines detained by the Kerala police,” official sources said.

Officials also admitted that both countries were facing an issue of this kind for the first time. “We are trying to come to grips with, and see how to go about, it.”

They felt that whether or not the ship was in India’s exclusive economic zone (EEZ) shouldn’t be made an issue. “Italy and India have the same clauses pertaining to extra-territorial jurisdiction. The ship was over 5,000 km away from the Italian coast. Don’t make an issue out of the EEZ aspect.”

However, as we have seen above Section 4 of the IPC does not say that “any crime committed against an Indian or on an Indian vessel, “wherever it may be,” can be tried in India.” Instead, it says that crimes committed by Indian nationals, or by foreign nationals on vessels registered in India can be tried in India. Moreover, the last part of the above quote makes little sense. The fact that the incident occurred in the EEZ is of prime importance. Just because the ship was closer to India than Italy does not give India the jurisdiction to try the marines. Indeed, if the incident did occur in the EEZ, Indian courts may well not have the power to try the case.

What next?

Considering the worst case scenario for India, that the incident did occur beyond 12 nautical miles and outside India’s territorial waters. If India sticks to its stand to prosecute the marines under Indian law and in Indian courts (the Indian Defense Minister recently suggested this), Italy could possibly take up the matter on the International level, by submitting a dispute to the International Tribunal for the Law of the Sea, or some other international court or tribunal by consent.

If the matter does go to an international court, it may be useful to recall what the ITLOS has said on a similar issue in the past in the M/V ‘Saiga’ (No. 2) case:

 The ITLOS decision in M/V ‘Saiga’ (No 2) provides some indication that states may not seek to enforce laws that are not specifically related to coastal state rights in the EEZ. In that case, the M/V ‘Saiga’, an oil tanker sailing under the flag of Saint Vincent and the Grenadines, entered the EEZ of Guinea to supply fuel to three fishing vessels. Guinean customs patrol boats arrested the vessel outside of Guinea’s EEZ and subsequently detained the vessel and crew members. Guinea asserted that the arrest of the M/V ‘Saiga’ had been executed following a hot pursuit motivated by a violation of its customs laws in the contiguous zone and ‘customs radius’ of Guinea. Under Guinea’s Customs Code, the ‘customs radius’ extended 250 kilometres from its coast. Saint Vincent and the Grenadines maintained that Guinea was not entitled to extend its customs laws to the EEZ and that the Guinean action had interfered with the right to exercise the freedom of navigation as the supply of fuel oil fell within ‘other internationally lawful uses of the sea related to’ the freedom of navigation. The Tribunal determined that the application of customs laws to parts of the EEZ was contrary to UNCLOS. From this case, it seems that coastal states’ enforcement powers in the EEZ are therefore not likely to be recognized as lawful beyond those relating to the activities over which coastal states are specifically attributed jurisdiction or sovereign rights. (Klein, p. 89; FN omitted)

After all this legal analysis, if there’s any certainty, it is on the importance of the exact location where the Italian marines on board MV Enrica Lexie allegedly shot the Indian fishermen. Once that is ascertained, however, a definitive legal answer on whether Indian courts have the jurisdiction over the alleged crime can be given. All this, of course, if I am not overlooking an Indian legislation that extends the criminal jurisdiction of Indian courts beyond the 12 nautical miles — feel free to weigh in.

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14 thoughts on “The Enrica Lexie Incident and International Law: Some Preliminary Thoughts

  1. Good evening – some questions here, and how they may impact matters, please?

    # The actual beneficiary ownership of the ENRICA LEXIE, if from San Marino and/or the US, how does that impact UNCLOS.
    # The watch-keeping officer onboard at time of incident, along with 18 other Indians onboard, are Indians – and working on the ship under Indian Government Articles of Agreement.
    # The scene of the crime – the fv St. Antony, flies the Indian flag and is Indian territory.
    # The commercial management of the ENRICA LEXIE is from Mumbai – as is the agency responsible for implementation of ISM onboard.

    Thank you, and humbly submitted, but the veil of secrecy behind the ownership may also be taken into account, please – along with one more factor – there are no available records of the ENRICA LEXIE making a formal report on the event to the local MROCC and SAR as required.

  2. THIS INCIDENT WAS PURELY A MURDER IN THE SEA. KILLING UNARMED FISHERMEN WITHOUT ANY PROCEDURES. THE KILLING HAPPENED DUE TO RACISM WELL ARMED WHITE AGAINST UNARMED BROWN. THIS IS A STRAIGHT FOREWARD CASE WHICH WOULD GIVE LIFE IN PRISON FOR THE MURDERERS AND JUSTICE TO THE FAMILIES IN THE FORM OF 100 MILLION DOLLARS. THERE IS NO WAY TO ESCAPE FROM THIS SITUATION. ALL MURDERS SHOULD BE TREATED AS MURDERS WHERE NO ONE IS BOUNDLESS TO LAW AND JUSTICE.

    • the satellite will show the truth and the 100 million dollars will be paid by Indian authorities to the non-guilty soldiers, with a lot of excuses ;-)
      Just wait a few days, I am confident Kerala police was not so effective in hiding the truth, fabricating evidence with the weapons and desperately trying to find a scapegoat. They cannot climb up and modify recorded satellite data.

  3. Firstly the Italians have managed this whole issue in the worst possible way. The Italians should had worked behind the scenes and negotiated with family members of the victims and Indian govt and shouldn’t have made adverse remarks in the press.

    Secondly I have no doubt that two innocent fishermen have died. They were not Pirates. Given the stand taken by the Italian marines I am not sure if the familes of the dead fishermen will get a fair trail in Italian courts. Most of the western European countries can claim to have very honest and transperent judiciary and political system, however we all know that Italy is slightly different when it comes to Political system and judiciary from rest of the western europe.

    Still lot of facts are to be uncovered but the possible scenario I foresee is that the marines are sentenced by Indian courts and then serve their imprisonment in Italy.

    • Absolutely not.
      If the white man is trigger happy, he will pay the price.
      No higher or lesser than the price that would have been asked for if two Italians had been killed in a similar situation by two Indians.

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  5. A very interesting post about jurisditional question.

    Kerala court acted differently.
    Italy could have sought to apply its jurisdiction if the fishermen were killed in the Italian ship.
    But if you shoot “from Italy” and kill Indians on Indian territory, India has full right to prosecute them.

    This does not mean that the two Italian Marines, Massimiliano e Salvatore are guilty.
    No evidence that the St.Antony has been attacked by Enrica Lexie.
    Different times, different places, abnormal trajectories of shooting, and more…

    Priority should be given to establish,first of all, the truth, and, as a consequence, decision on how to treat this issue could be delegated to international codes and agreements.

    In any case, an other principle in use in all civilized countries should apply: nobody can be judged as guilty until the final sentence is written.
    ——————————————————-
    Ciao (from Rome)

  6. Pingback: Enrica Lexie Incident: Firing by Italian Marines a Terrorist Act? Italy Accepts Indian Courts’ Jurisdiction? | International Law Curry

  7. Last post on this topic was on March 11 and don’t know anyone will see this and clear my doubt. It is not exactly connected with jurisdiction but the incident as such and the present state of affairs.
    The ship is berthed in Kochi and the captain , crew and ship are not allowed to leave. The two accused marines are in jail on remand which was being extended every 14 days.
    What is the logic behind keeping the ship and others except the marines, not being to leave? For the last fifty days or so the ship was under the police and they have searched and taken some guns and send them for forensic tests. Even after more than one and half months the forensic tests are not completed. Why? Let us hope that the captain and crew must have been questioned regarding the happenings leading to the alleged shooting of the fishermen. Then why they should be detained indefinitely? Once the ship has been searched and hope that necessary photographs of relevant areas in the ship must have been taken, why it should be detained? Why the ship is required at the time of trial? If a murder takes place in a building does the court shuttle between the court building and the building where the murder has taken place? Are not the photographs sufficient. The crew and captain can be summoned during the trial if necessary. If they are not in a position is not their statements sufficient for the presiding judge for carrying on with the trial?
    To me the case is being dragged unnecessarily or rather the government of Kerala has no case as such and investigating agencies are groping in dark hoping to get some clue by the help of providence.
    Who will answer for the loss incurred by the owners of the ship for keeping it idle and berth charges? If the guilt of the marines could not be established will not the Kerala government have to pay compensation for the marines for unwanted confinement and the ships owners for their loss.
    If a state police personnel shoots from a railway compartment at some suspected thief on the platform will the train and the passengers detained like this?

    Mr.Shashank Kumar or anyone else can please tell me. V.K.Guptan vkguptan@yahoo.com

  8. THE GAME PLAN IN ENRICA LEXIE.

    The question whether the Indian Courts have jurisdiction to try the two Italian Marines involved in the shooting of the fishermen were answered by the relatives of the dead fishermen in Court basing on Sec.3 of the Indian Penal Code and two specific statutes that are in force in India.
    The statutes are the Admiralty Offences (Colonial) Act, 1849 and the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (the SUA Act, 2002).
    A conjoint reading of Sec.3 and the said two statutes clearly reveal that the Indian Courts are well within their powers to try the Italian Marines.
    Lets examine the provisions closely.
    Sec. 3 of the Indian Penal Code reads as follows:
    Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied)

    Section 3 of the Penal Code reproduced above has the following attributes:
    (a) It applies to all persons including foreigners and is not confined to citizens of India.
    (b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.
    (c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.
    (d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.
    Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.
    The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.
    Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:
    Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,- Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea. (emphasis supplied)

    The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. It specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.
    In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.
    The Captain of the Vessel Enrica Lexie and the two Italian Marines are also liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.
    The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.
    Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:
    Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-
    (1) Whoever unlawfully and intentionally-
    (a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;
    (b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;
    (c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life; (emphasis supplied)
    Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:
    (g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-
    (i) causes death to any person shall be punished with death;
    (ii) ……;
    (iii) ……;
    (iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and
    (v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.
    (emphasis supplied)
    Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:
    Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.
    Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-
    (a) …;
    (b) …; or
    (c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India. (emphasis supplied)

    In the light of the above said Legal norms which are presently in force in India, the two Italian Marines and the Captain of the vessel are liable to be proceeded in India under Indian law. If they are so proceeded and earnestly prosecuted there is a reasonably high chance that they will be convicted.
    However as on date the Government of India under pressure from powers that be within and outside India has refused to invoke SUA Act, 2002 in the ENRICA LEXIE matter. Similarly unlike the Maharashtra Police who effectively invoked the provision under Admiralty Offences (Colonial) Act, 1849 the Kerala Police is refusing to invoke the same against the Italain accused so that the Courts in India will after a point be compelled to acquit the Italians.

    So far the modus operandi planned to save the Italians and executed by the Government of India and the Government of Kerala are going ahead well. In few dasy time the highest courts in India, notwithstanding the above said clear legal provisions, will be compelled to acquit the two Italian marines as well as permit the vessel ENRICA LEXIE to sail out of India.
    Republic of Italy should thank the Government of India and the Government of Kerala State for foresaking its own citizens and making a scarecrow of its own judicial system.
    (Author is the Lecturer for Law of the Sea and Maritime Law, National University for Advanced Legal Studies, Kochi.)

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  10. The government of India, by notification 396 dated 27 Aug 1981, SO 671(E) has extended the provisions of IPC over the entire Indian EEZ. request ur views in light of this information pl.
    ani

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