Republic of Italy v. Union of India

In one line

Two Italian marines aboard an Italian tanker shot two Indian fishermen twenty miles off Kerala, and the case is about which State could try them.

In the wording a student can write in an exam: the Enrica Lexie incident raised the question whether India or Italy was entitled to exercise criminal jurisdiction over an act committed on board an Italian-flagged vessel in India's exclusive economic zone, resulting in the deaths of Indian nationals on an Indian-flagged vessel. The Supreme Court of India held on 18 January 2013 that the Union of India rather than the State of Kerala had jurisdiction and ordered a Special Court. An arbitral tribunal under Annex VII to the Convention held on 21 May 2020 that India had not breached the Convention's provisions on freedom of navigation or flag State jurisdiction, that Italy had breached them by interfering with the Indian vessel, and that the marines were entitled to immunity, so that India was precluded from exercising jurisdiction over them.

The facts

On 15 February 2012, about 20.5 nautical miles off the coast of India, two Italian marines serving as a military security detachment aboard the Enrica Lexie, an oil tanker flying the Italian flag, fired on an Indian fishing vessel, the St. Antony. Two Indian fishermen were killed. Italy said the marines took the fishing vessel for a pirate attack; India said its fishermen were killed without cause.

Where the shooting happened decides the whole case. Twenty and a half miles is beyond India's twelve-mile territorial sea and beyond its twenty-four-mile contiguous zone, and inside its two-hundred-mile exclusive economic zone. So the ordinary rules of the territorial sea, including article 27 on criminal jurisdiction on board a foreign ship in innocent passage, did not apply, and the question fell to be answered under the exclusive economic zone regime in [The Exclusive Economic Zone] and the flag State rules in [The High Seas].

The Indian proceedings

Kerala. Kerala's police investigated and charged the marines. The High Court of Kerala, on 29 May 2012, held that India and the Kerala authorities had jurisdiction. Its reasoning was that although the incident occurred outside India's territorial waters and within its contiguous zone, the Ministry of Home Affairs Notification S.O. 671(E) of 27 August 1981 made the Indian Penal Code and the Code of Criminal Procedure applicable to the entirety of India's exclusive economic zone, and that this conclusion was not incompatible with the Convention. The Court said the case could be treated only as one of brutal murder and could in no way be masqueraded as a discharge of a sovereign function.

That Notification is section 7 of the Maritime Zones Act 1976 in action: the Act allows the Central Government to extend enactments to the zone, and the 1981 Notification did so for the criminal law.