Jurisdiction and Diplomacy on the High Seas: India vs. Italy

On 15 February 2012, Italian military guards on an oil tanker allegedly shot and killed two Indian fishermen after confusing them for pirates.[1] There are allegations that the Indian fishermen were not killed by the Italians, but by security forces on a different oil tanker.[2] There is also some suggestion that the focus on the Italians (instead of the other ship) is the product of dirty business practices and an attempt to shutout Italian businesses interests from India to benefit certain internal political constituencies.[3] There are also questions as to the exact location of the incident, whether it took place in international waters or in India’s territorial sea. After the incident, Indian authorities stopped the oil tanker and arrested the Italian security guards to investigate the shooting and possibly charge them with murder.

Italy is challenging the exercise of Indian jurisdiction over the shooting claiming that Italy should have exclusive jurisdiction over the events. India, by contrast, claims to be able to exercise jurisdiction based on its internal laws. The location of the incident is key to understanding the nature of the dispute between India and Italy. According the Italian argument, if the oil tanker was in international waters at the time of the incident, then the Indian courts lack jurisdiction under international law. In the end, it will be difficult to deny the exercise of jurisdiction over this incident by the Indian courts.

This legal dispute[4] operates on several different levels: (1) whether the exercise of jurisdiction by India is prevented by the relevant rules of Public International Law; (2) whether the Indian pursuit and arrest on the high seas was permissible and; (3) whether any of this deprives the Indian courts of jurisdiction.

The first issue can be resolved by turning to the standard sources of Public International Law: treaties and custom. Traditionally, customary international law governing the exercise of jurisdiction provided that any State could exercise jurisdiction in any case except where there was a prohibitory rule to the contrary.[5] In fact, the Permanent Court of International Justice (PCIJ), the predecessor court to the International Court of Justice, decided a case similar to this one (in that case the cause of death was a collision) and concluded that the national State of the ship where the deaths occurred could exercise jurisdiction because the crime took place in part on the “territory” of that State.[6] This principle finds its modern expression in the customary norm known as the “objective” territorial principle.[7] However, States are free to limit the exercise of their jurisdiction by, inter alia, signing international agreements to that effect.

Many States came together years after the PCIJ’s decision and signed the United Nations Convention on the Law of the Sea (UNCLOS), which specifically reversed that decision.[8] Both India and Italy have signed and ratified this treaty thereby bound by its terms. Article 97 of the UNCLOS states that,

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 of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.[9]

This article applies only to collisions and navigational incidents on the high seas and not to other types of events. UNCLOS specifically prohibits the exercise of jurisdiction over acts leading to a collision that took place on another State’s ship based on the “objective” territorial principle. The general rule for jurisdiction on the high seas set out in Article 92 states,

Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.[10]

Unfortunately, this rule does not specifically address criminal jurisdiction over acts that originate on one vessel and terminate on another. It only speaks of jurisdiction over the ship. This in large part refers to the authority to stop the vessel on the high seas and conduct judicial and police activities onboard.

Article 92 could be read to exclude the application of the “objective” territorial approach to jurisdiction by referring to “exceptional cases”. The problem with this approach is that according the “objective” theory, the national State of the vessel where the crime was completed is not exercising jurisdiction over the ship where the crime was started. India is exercising its right to criminalize activity that takes place (at least partially) on its territory. The rule of Article 92 is better understood as preventing states from exercising jurisdiction over events that take place entirely onboard a single ship on the high seas that bears the flag of another State. Also, the rule set out in Article 97 regarding collisions would be superfluous if Article 92 were understood as excluding jurisdiction in all cases where the crime is completed onboard another vessel. The drafters of the UNCLOS excluded jurisdiction only in the cases of collisions and navigational incidents supporting the conclusion that jurisdiction in other cases is permissible.[11]

Extending Indian jurisdiction to crimes that are completed on Indian vessels is consistent with modern jurisdictional practice regarding crimes that begin in the territory of one State and are completed or partially take place in the territory of another.[12] The Indian courts should be understood as having jurisdiction over the Italian guards based on the lack of any explicit prohibition in UNCLOS on the exercise of the “objective” territorial principle and the fact that current jurisdictional practice generally supports the existence of jurisdiction in such cases.

Jurisdiction to prescribe conduct is of course a separate issue from whether or not pursuing the Italian tanker in international waters was permissible under UNCLOS. This second issue regards the authority of one State to detain a vessel from another State on the high seas. Article 111 of UNCLOS states,

The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.[13]

Clearly, the issue here is a factual one. First, the exact location of the Italian vessel at the time pursuit began and (if outside the territorial waters) if the law prohibiting murder can be considered to violate the rights of the zone where the ship was located at the time.

It is impossible to definitively resolve these factual issues in this blog post due to the developing nature of the situation. Regardless, a few things can be said with certainty. The Indian authorities lacked the right of hot pursuit if the alleged murders took place outside their territorial waters. Conversely, the Indian authorities would have had the authority to stop the Italian vessel if it was in Indian territorial waters. Also, the Indian government will owe the Italian ship compensation for any loss if it was improperly stopped.[14] This, however, does not address the issue of Indian jurisdiction over the Italian security guards presently in their custody.

The last issue is whether the Indian courts are permitted to prosecute the security guards for murder even assuming that India violated international law by stopping the Italian tanker. The answer appears to be yes as a matter of law. While it is not uncontested, prosecution of an individual will generally be permitted even where that person came into the custody of the court through illegal means. This is known by the legal maxim of male captus bene dententus.[15] The Extraordinary Chambers in the Courts of Cambodia explicitly recognized the doctrine[16] and the International Criminal Tribunal for Rwanda has discussed it.[17] Common law jurisdictions have a long history of applying this rule going back at least as far as the 1800’s.[18] There are exceptions, normally dealing with gross violations of human rights in the manner of detention or capture, but they do not appear to apply in this case. No one is allegeding that the Italians have been tortured or mistreated. Accordingly, there does not appear to be an international law bar to exercising jurisdiction because of allegedly illegal arrest in this case.

The recent incident on the high seas between an Italian oil tanker and Indian fisherman reads like the basis for an international thriller: Piracy on the high seas, innocent victims, multimillion dollar business ventures, allegedly false evidence, mistaken identities and high diplomacy. At its base though, the dispute between India and Italy is a legal one dealing with the right to criminalize behavior, the authority to seize a vessel on the high seas and the jurisdiction to try those accused of murder. Both India and Italy are likely to raise valid points as they try to settle this dispute. However, absent a diplomatic solution (or exonerating evidence), the Italians are likely to validly stand trial in India.

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[1] India, L’Italia riocore all’Alta Corte New Delhi: avanti con le nostre leggi, Il Messaggero, 22 February 2012.

[2] Ibid.; India, nessun risvolto politico Icc conferma attacco a nave greca, La Repubblica, 21 February 2012.

[3] India, L’Italia ricorre all’Alta Corte New Delhi: avanti con le nostre leggi, Il Messaggero, 22 February 2012; I marò furono i soli a sparare vicino agli italiani attaccata nave greca, La Repubblica, 21 February 2012.

[4] There are also factual allegations, regarding if the Italians really were the shooters that will not be directly addressed here.

[5] Case of the “S.S. Lotus”, PCIJ, Series A, No. 10, 1927.

[6] Ibid. As a way of shorthand, vessels flying the flag of a nation are assimilated to the idea of the national territory.

[7] The other modern territorial principles are the “subjective” territorial principle, the active nationality principle, the passive personality principle, the principle of universality, the protective principle and, possibly, the effects doctrine.

[8] Worth noting is that there is a treaty from the 1950’s that did the same thing. Since UNCLOS is current law, it will be addressed here.

[9] UNCLOS, Article 97. Worth noting, Article 11 of the 1958 convention was similarly limited to collisions or navigational incidents.

[10] UNCLOS, Article 92.

[11] The Latin phrase for this is expressio unius est exclusio alterius.

[12] See for example, Chua Han Man v. US, 730 F.2d 1308, 1312 (9th Cir 1984); in re Wood Pulp Cartel, Joined, 96 ILR 148.

[13] UNCLOS, Article 111(1).

[14] UNCLOS, Article 111(8).

[15] The most famous example is Attorney-General v. Eichmann, 36 I.L.R. 5 (1961). A recent American example is United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[16] Case File No. 002/14-08-2006, Order of Provisional Detention, 31 July 2007.

[17] See, Prosecutor v. Rwamakuba, ICTR 98-44-T, Decision on the Defence Motion Concerning the Illegal Arrest and Illegal Detention of the Accused, Case, 12 December 2000, ¶ 30.

[18] See, Ker v. Illinois, 119 U.S. 436 (1886).