Republic of Italy v. Union of India

The Supreme Court. Italy and the marines filed Writ Petition 135 of 2012 in the Supreme Court on 19 April 2012, and appealed the Kerala judgment by Special Leave Petition 20370 of 2012 on 11 July 2012. The two were heard together.

On 18 January 2013 the Supreme Court, in the judgment of Kabir CJ, found among other things that the Union of India, as opposed to the State of Kerala, had federal criminal jurisdiction over the marines, ordered that a Special Court be established to try them, and stated that the question of jurisdiction could be re-agitated before that Special Court. The marines, who had been on bail in Kerala, moved to Delhi. That judgment is the one MU cites as (2013) 4 SCC 721.

What the Supreme Court therefore did and did not decide. It resolved a question of Indian federal law, which of the Union and the State could prosecute. It did not finally resolve the international law question, since it expressly left jurisdiction open to be re-agitated, and Italy maintained throughout that the flag State had exclusive jurisdiction and that the marines were in any event immune.

The arbitration

Italy instituted proceedings under Annex VII to the Convention on 26 June 2015, and the Permanent Court of Arbitration acted as registry.

Facts. The 'Enrica Lexie' Incident (Italy v. India), PCA Case No. 2015-28, award of 21 May 2020, notified to the parties on 9 June 2020. The tribunal was presided over by Judge Vladimir Golitsyn, with Judge Jin-Hyun Paik, Judge Patrick L. Robinson, Professor Francesco Francioni and Dr Pemmaraju Sreenivasa Rao.

Held on jurisdiction. By four votes to one, there was a dispute between the parties as to which State was entitled to exercise jurisdiction over the incident, and that dispute concerned the interpretation or application of the Convention, so the tribunal had jurisdiction over it. India's counter-claims were admissible unanimously. By three votes to two the tribunal held that it had jurisdiction to deal with the question of the immunity of the marines. Unanimously, there was no need to address the compatibility with the Convention of India's Maritime Zones Act 1976 and the 1981 Notification.

Held on the merits, against Italy. Unanimously, India had not acted in breach of article 87(1)(a), the freedom of navigation; had not violated article 92(1), exclusive flag State jurisdiction; article 97(1) and (3), the collision provision, were not applicable; and India had not violated article 100, so article 300 could not be invoked.

Held on the merits, against India. Unanimously, by interfering with the navigation of the St. Antony Italy acted in breach of article 87(1)(a) and article 90. By three votes to two, Italy had not violated India's sovereign rights under article 56 or the due regard obligation in article 58(3), and unanimously it had not infringed article 88.

Held on immunity. By three votes to two, the marines were entitled to immunity in relation to the acts they committed during the incident, and India is precluded from exercising its jurisdiction over them.

Held on remedies. Unanimously, the finding that Italy had breached articles 87(1)(a) and 90 constituted adequate satisfaction for the injury to India's non-material interests; and India was entitled to compensation in connection with loss of life, physical harm, material damage to property including the St. Antony, and moral harm suffered by the captain and crew, which by its nature could not be made good through restitution. The parties were invited to agree the amount, and the tribunal retained jurisdiction to quantify it if they could not.

Why it matters. Four things, and each is a separate examination point.

Concurrent jurisdiction is normal. The tribunal did not hold that India had no jurisdiction. It held that India had not breached the Convention's navigation and flag State provisions, which is a different thing. Both States had a claim to jurisdiction on the ordinary principles in [State Jurisdiction]: Italy by the flag and by nationality, India by objective territoriality, since the effects were felt on an Indian vessel and on Indian nationals.

Article 97 does not apply. That provision confines penal proceedings after a collision or other incident of navigation to the flag State or the State of the accused's nationality. A shooting is not an incident of navigation, so the Lotus-reversing rule did not save Italy.

What decided the case was immunity, not the law of the sea. The marines were State officials acting in the exercise of official functions, and immunity, dealt with in [Immunity from Jurisdiction], is what removed the case from Indian courts.

Italy lost too. By interfering with the navigation of the St. Antony it breached the freedom of navigation and the right of navigation, and India was awarded compensation for the deaths, the damage and the moral harm.

A worked example

A warship of State QQ has a military detachment aboard a merchant ship flying State QQ's flag. Thirty miles off State RR's coast the detachment fires on a State RR fishing boat, killing a fisherman. State RR arrests the ship when it enters port and charges the soldiers with murder.

Which zone? Thirty miles is in State RR's exclusive economic zone. So there is no sovereignty, but there are the sovereign rights and jurisdiction in article 56, and the freedoms of navigation preserved by article 58.

Does State RR have jurisdiction? On the ordinary bases, yes: the effects of the act were felt on its vessel and against its national, which is objective territoriality, and the victim's nationality supports passive personality. Nothing in the Convention removes that, and the Enrica Lexie tribunal held that India had not breached articles 87(1)(a) or 92(1) by exercising jurisdiction.

Does State QQ have jurisdiction? Yes, by the flag under article 92(1) and by the nationality of the soldiers.

Does article 97 give State QQ exclusivity? No. Article 97 applies to a collision or any other incident of navigation, and a shooting is not one. The tribunal held it inapplicable.

Can State RR try the soldiers? Only if they are not immune. On the Enrica Lexie reasoning they may be entitled to immunity in relation to acts committed in the exercise of their official functions, in which case State RR is precluded from exercising jurisdiction over them however good its jurisdictional title.

What is State RR's remedy? A claim against State QQ, not a prosecution of its soldiers. If State QQ's ship interfered with the navigation of the fishing boat it breached article 87(1)(a) and article 90, and State RR is entitled to compensation for the death, the damage to the vessel and the moral harm to the crew.

Distinctions table

What it does NOT mean

The case is not about delimitation, though MU lists it under 2.4.2.

It does not decide that India lacked jurisdiction. The tribunal held India had not breached the Convention, and immunity is what precluded the exercise.

It does not make the exclusive economic zone a zone of flag State exclusivity. Article 58 preserves the freedoms of navigation and overflight; it does not confer immunity from a coastal State's criminal jurisdiction over effects felt on its own nationals.

Article 97 is not a general rule that the flag State alone may prosecute. It applies to collisions and other incidents of navigation.

Limits and criticism

The immunity holding was by three votes to two, and two arbitrators, including the Indian arbitrator, dissented on both the jurisdiction to decide immunity and the immunity itself. A candidate should note the division rather than present the point as settled.

The result satisfied nobody entirely. India lost the ability to try the marines and won a declaration and compensation; Italy kept its marines and was held to have breached the freedom of navigation. That is a characteristic outcome of a dispute in which both States had genuine legal claims.

The 1981 Notification was left unexamined. The tribunal found it unnecessary to address the compatibility with the Convention of the Maritime Zones Act 1976 and the 1981 Notification, so the question whether India may extend its criminal law to the whole exclusive economic zone remains formally open.

Quick revision

15 February 2012, about 20.5 nautical miles off India, inside the exclusive economic zone: two Italian marines aboard the Italian-flagged Enrica Lexie fired on the Indian fishing vessel St. Antony, killing two Indian fishermen.

Kerala High Court, 29 May 2012: India and Kerala had jurisdiction, the 1981 Notification S.O. 671(E) having extended the Indian Penal Code and the Code of Criminal Procedure to the whole exclusive economic zone.

Supreme Court of India, 18 January 2013, Kabir CJ, cited by MU as (2013) 4 SCC 721: the Union of India, not the State of Kerala, had federal criminal jurisdiction; a Special Court was to be established; jurisdiction could be re-agitated there.

Annex VII tribunal, PCA Case No. 2015-28, award of 21 May 2020: India did not breach article 87(1)(a) or 92(1); article 97 was not applicable, a shooting not being an incident of navigation; India did not violate article 100 so article 300 could not be invoked; Italy did breach article 87(1)(a) and article 90 by interfering with the navigation of the St. Antony; the marines were entitled to immunity and India was precluded from exercising jurisdiction over them, by three votes to two; the finding of breach was adequate satisfaction for non-material injury and India was entitled to compensation for the deaths, the damage and the moral harm.

Test yourself

1. Where did the incident occur and why does that matter?

About 20.5 nautical miles off the Indian coast, which is beyond India's twelve-mile territorial sea and beyond its twenty-four-mile contiguous zone, and within its two-hundred-mile exclusive economic zone. It matters because the territorial sea rules, in particular article 27 on criminal jurisdiction aboard a foreign ship, did not apply, and the question fell to be decided under the exclusive economic zone regime in article 56 and article 58 and the flag State rules in articles 92 and 97.

2. What did the Supreme Court of India decide on 18 January 2013?

Among other things, that the Union of India rather than the State of Kerala had federal criminal jurisdiction over the marines; that a Special Court should be established to try them; and that the question of jurisdiction could be re-agitated before that Special Court. It therefore decided a question of Indian federal competence and expressly left the jurisdictional question open, which is why the dispute continued to an Annex VII tribunal.

3. Why did article 97 not help Italy?

Because article 97 applies only in the event of a collision or any other incident of navigation concerning a ship on the high seas involving the penal or disciplinary responsibility of the master or another person in the service of the ship. The Enrica Lexie tribunal held unanimously that article 97(1) and (3) were not applicable in the case. A shooting from the deck of a tanker at a fishing boat is not an incident of navigation, so the provision that reverses the Lotus result for collisions had nothing to operate on.

4. What did the arbitral tribunal decide against India, and what against Italy?

Against India, nothing on the merits: unanimously India had not breached article 87(1)(a) or article 92(1), article 97 was inapplicable and article 100 had not been violated. India nevertheless lost on immunity: by three votes to two the tribunal held the marines entitled to immunity in relation to the acts committed during the incident, so India is precluded from exercising jurisdiction over them. Against Italy: unanimously, by interfering with the navigation of the St. Antony Italy breached article 87(1)(a) and article 90; the finding itself was adequate satisfaction for India's non-material injury; and India was entitled to compensation for loss of life, physical harm, material damage to property including the St. Antony, and moral harm to the captain and crew.

5. Did both States have jurisdiction over the incident?

On the ordinary principles, yes, and that is the point of the case. Italy had jurisdiction by the flag under article 92(1) and by the nationality of the marines. India had jurisdiction on the objective territorial principle, the effects of the act being felt on an Indian vessel and on Indian nationals, and on the passive personality principle. International law contains no general rule of priority between concurrent jurisdictions, and the tribunal did not hold that India lacked jurisdiction; it held that India had not breached the Convention, and that immunity precluded the exercise.

6. Why is it wrong to describe this as a delimitation case?

Because nothing in it concerns the drawing of a boundary between the maritime zones of two States, which is what articles 15, 74 and 83 and the cases in [Delimitation of Maritime Boundaries] are about. It concerns which State may exercise criminal jurisdiction over an act committed in a zone whose limits nobody disputed. MU lists it at 2.4.2 under delimitation, and a candidate should know it is there and know what it actually decides.