Republic of Italy v. Union of India (2013)

This is the Indian case on the maritime zones, and the clearest judicial working-out anywhere of the difference between sovereign rights and rights of sovereignty. It also decides the reach of Article 97 of the Convention on the Law of the Sea, and it is the leading modern Indian authority on extra-territorial legislative competence under Article 245(2).

Against the sharp increase in piracy off the coast of Somalia and in the vicinity of the Minicoy islands of the Lakshadweep archipelago, Italy enacted Government Decree 107 of 2011, converted into Law No. 130 of 2 August 2011, allowing deployment of Italian Military Navy contingents on Italian-flagged vessels. Under a Protocol of Agreement of 11 October 2011 between the Ministry of Defence and the Italian Shipowners' Confederation, a military protection detachment was placed on board the M.V. Enrica Lexie.

On 15 February 2012, heading for Djibouti, the vessel encountered an Indian fishing vessel, the St Antony, which it allegedly mistook for a pirate vessel, at a distance of about 20.5 nautical miles from the Indian coast off Kerala. Firing from the Italian vessel killed two Indian fishermen. The vessel continued its course, and about 38 nautical miles out received a message from the Maritime Rescue Co-ordination Centre, Mumbai, asking it to return to Cochin to assist the enquiry. It did. A first information report had been lodged at Neendakara, Kollam, under sections 302 and 34 of the Penal Code, and on 19 February two marines were arrested.

Proceedings were begun in the Kerala High Court and then under Article 32 in the Supreme Court, asserting that the State of Kerala had no jurisdiction and invoking sovereign and functional immunity. A charge sheet was filed under the Penal Code and the 2002 Act.

1. Does Indian sovereignty extend to the place of the incident, and may Parliament legislate for it?
2. Does Article 97 of the Convention, which reserves penal proceedings in incidents of navigation on the high seas to the flag State or the State of nationality, apply?
3. Which authority in India, if any, may investigate and try?

1. India could exercise rights of sovereignty up to 24 nautical miles, that is through the territorial sea and the contiguous zone; beyond that, in the exclusive economic zone, it has only sovereign rights for specified purposes. The incident having occurred within the contiguous zone, India is entitled to prosecute.
2. Article 97 has no application to the exclusive economic zone, of which the contiguous zone is a part.
3. The State of Kerala has no jurisdiction to investigate. Until it is shown that Article 100 applies, it is the Union of India which has jurisdiction, and the Union was directed, in consultation with the Chief Justice of India, to set up a Special Court.

The constitutional base. Article 1 deals only with geographical territory; Article 297 deals with maritime territory, vesting in the Union all lands, minerals and other things of value underlying the ocean within the territorial waters, continental shelf and exclusive economic zone, and all other resources of the exclusive economic zone, and authorising Parliament to specify the limits of the maritime zones from time to time. India therefore asserts authority not only over the land mass but over the areas specified in Article 297, though the nature of that authority is not the same for each zone.

Sovereignty over territorial waters. Section 3(1) of the 1976 Act declares that "The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over, such waters." Section 3(2) fixes the limit at twelve nautical miles from the nearest point of the appropriate baseline, and section 3(3) allows the Central Government to alter that limit by notification approved by both Houses, having regard to international law and State practice. The Court traced the Indian limit from three nautical miles, to six by proclamation of 22 March 1952, to twelve by proclamation of 30 September 1967, and then statutorily to twelve by Act 80 of 1976.

Sovereign rights against rights of sovereignty. This is the passage that carries the case. In an area where a State exercises sovereignty, its laws prevail over other laws in case of conflict. But a State may have sovereign rights over an area "which stops short of complete sovereignty". In the exclusive economic zone, section 7(4) of the 1976 Act gives the Union sovereign rights limited to exploration, exploitation, conservation and management of natural resources and production of energy from tides, winds and currents, together with ancillary rights; and that "cannot be equated with rights of sovereignty over the said areas, in the Exclusive Economic Zone." The Union is clothed "with sovereign rights and not rights of sovereignty in the Exclusive Economic Zone."

The Court also declined to read Article 59 of the Convention as permitting a State to assert rights or jurisdiction beyond those specifically provided in the Convention.

Why Article 97 does not reach the incident. The reasoning is textual and clean. Article 97 sits in Part VII, on the high seas. Article 86 confines Part VII to those parts of the sea not included in the exclusive economic zone, the territorial sea, internal waters, or archipelagic waters. Article 55 defines the exclusive economic zone as an area beyond and adjacent to the territorial sea with its own specific legal regime, and Article 57 fixes it at not beyond 200 nautical miles. Combining them, the authority of each coastal State to prescribe the limits of its exclusive economic zone within 200 nautical miles is internationally recognised, and the declaration under section 7(1) of the 1976 Act is in tune with the Convention. It follows, irrespective of what incident of navigation means, that Article 97 has no application to the exclusive economic zone, of which the contiguous zone forms part.

Lotus, watered down. The Court observed that the principles enunciated in the Lotus case have to some extent been watered down by Article 97 of the Convention, and noted that territorial criminal jurisdiction rests on the convenience of crimes being dealt with by the State whose social order is most closely affected, subject to the immunity that public ships and armed forces of foreign States may enjoy.

The duties of the flag State are not displaced. India being a signatory, it is obligated to respect the Convention and to apply it where there is no conflict with domestic law. Both States may have to submit to Article 94, and in particular Article 94(7), under which each State shall cause an inquiry to be held into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State, the flag State and the other State cooperating in any such inquiry.

Extra-territorial legislative competence. Chelameswar J supplemented the judgment on this. Reviewing English and United States practice, including the Omnibus Diplomatic Security and Anti-Terrorism Act adopted after the Achille Lauro incident, he concluded that Parliament "undoubtedly, has the power to make and apply the law to persons, who are not citizens of India, committing acts, which constitute offences prescribed by the law of this country, irrespective of the fact whether such acts are committed within the territory of India or irrespective of the fact that the offender is corporeally present or not within the Indian territory at the time of the commission of the offence." And a municipal court may not decline to apply the law on the ground of extra-territorial operation "when the language of the enactment clearly extends the application of the law."

He also corrected an earlier formulation. Of the observation in Aban Loyd Chiles Offshore Ltd that India has been given only certain limited sovereign rights, he said that sovereignty is not given but only asserted. Parliament had expressly asserted sovereignty over the territorial waters while simultaneously asserting authority to alter their limit.

Why Kerala was excluded. Matters arising under the Declaration on Principles of International Law concerning friendly relations and cooperation between States in accordance with the Charter must be conducted at the level of the Central Government and cannot be the subject of a proceeding initiated by a State Government. The pending proceedings before the Chief Judicial Magistrate, Kollam, were transferred to the Special Court, which was to dispose of the matter in accordance with the 1976 Act, the Penal Code, the Code of Criminal Procedure and, most importantly, the Convention where there is no conflict with domestic law. The petitioners were left free to re-agitate jurisdiction on evidence, including under Article 100.

• The zones answer in one line: sovereignty in the territorial sea to 12 nautical miles; control for customs, fiscal, immigration and sanitary purposes in the contiguous zone to 24; sovereign rights over resources in the exclusive economic zone to 200; freedom, and no sovereignty at all, on the high seas.
• The phrase to reproduce exactly is sovereign rights and not rights of sovereignty. It is the difference between owning the place and having limited powers over specified activities in it.
• On Article 97, show the chain: Article 97 is in Part VII, Part VII is limited by Article 86, and Article 86 excludes the exclusive economic zone. That is the whole argument.
• Note the domestic-law point for a monism and dualism answer: the Court applied the Convention because India is a signatory and there was no conflict with domestic law, and directed the Special Court to apply it on the same footing.