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!

Sovereign Immunity Not Absolute: Supreme Court of India

Just a short post to note a judgment issued by the Supreme Court of India (reported in today’s Hindu here) on the issue of sovereign immunity in India.

The facts:

In the instant case, Ethiopian Airlines was aggrieved by a National Consumer Disputes Redressal Commission order holding that a dispute against it was maintainable and asking the Maharashtra State Commission to decide the issue afresh on its merits.

Complainant Ganesh Narain Saboo, who had booked a consignment with the airline, moved the State Commission, contending that gross delay in delivery at Dar es Salaam, Tanzania, led to deterioration of the goods.

The judgment:

Writing the judgment, Justice Bhandari rejected the contention that a foreign state or its instrumentality could not be proceeded against under the Consumer Protection Act for deficiency in service without obtaining prior permission from the Central government.

The Bench also did not accept the plea that a foreign state or its instrumentality could legitimately claim sovereign immunity from being proceeded against under the Act in a civil claim.

and

Countries which participate in trade, commerce and business with different countries ought to be subjected to normal rules of the market. If state-owned entities operate with impunity, “the rule of law would be degraded and international trade, commerce and business will come to a grinding halt,” said a Bench of Justices Dalveer Bhandari, Mukundakam Sharma and Anil R. Dave.

On international law:

“That Ethiopian Airlines was not entitled to sovereign immunity with respect to a commercial transaction is also consonant with the holdings of other countries’ courts and with the growing international law principle of restrictive immunity,” the Bench said.

“On a careful analysis of the American, English and Indian cases, it is abundantly clear that Ethiopian Airlines must be held accountable for the contractual and commercial activities and obligations that it undertakes in India”, the Bench said…

Readers may be interested in a related recent development in Hong Kong, where the Court of Final Appeal (CFA), in Democratic Republic of the Congo v FG Hemisphere Associates LLC, ruled that foreign states enjoy absolute immunity from jurisdiction of Hong Kong courts, and there is no exception even in cases the activity and assets are of a commercial nature. (A Fulbright and Jaworski publication on the case here.)

[Apologies for not providing a direct link to the judgment, I am currently traveling with minimal access to the Internet and hope to return to this once I get back to base.]