India v. Italy: Part Deux

Massimiliano Latorre and Salvatore Girone, the two Italian guards arrested by the Indian authorities (ansa)

Massimiliano Latorre and Salvatore Girone, the two Italian guards arrested by the Indian authorities (ansa)

In an earlier blog post I discussed the developing international controversy between India and Italy regarding Italian military guards on an oil tanker that allegedly shot and killed two Indian fishermen after confusing them for pirates. India and Italy dispute which of the two countries can properly exercise jurisdiction over the incident. Much of this dispute is based on disagreement over the location of the oil tanker and the fishing boat when the incident took place. India claims that the vessels were in her territorial waters at the time of the incident while Italy maintains that the incident occurred on the high seas. In the last post I set out how the merits of the case might be resolved concluding that India can properly exercise jurisdiction over the incident. This post will discuss what international fora are available to the parties to settle their dispute.

Both Italy and India are parties to the United Nations Convention on the Law of the Sea (UNCLOS) that codifies much of modern international law dealing with events on the seas and covers many issues central to the India/Italy dispute. For example, article 111 addresses the conditions under which it is permissible for a State to stop a vessel from another State on the high seas. Directly implicated in this case is article 92 of the convention which reads, “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.”

Alleging the application of article 92 of UNCLOS brings the dispute within the ambit of that treaty triggering its dispute resolution provision. Article 287 provides in pertinent part,

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:

(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;

(b) the International Court of Justice;

(c) an arbitral tribunal constituted in accordance with Annex VII;

(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. […]

5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree. (emphasis added)

Accordingly, absent an agreement or declaration, the dispute over the application and interpretation of article 92 will be subject only to arbitration as set out in Annex VII to UNCLOS. Italy filed such a declaration stating,

In implementation of article 287 of the United Nations Convention on the Law of the Sea, the Government of Italy has the honour to declare that, for the settlement of disputes concerning the application or interpretation of the Convention and of the Agreement adopted on 28 July 1994 relating to the Implementation of Part XI, it chooses the International Tribunal for the Law of the Sea and the International Court of Justice, without specifying that one has precedence over the other.

In making this declaration under article 287 of the Convention on the Law of the Sea, the Government of Italy is reaffirming its confidence in the existing international judicial organs. In accordance with article 287, paragraph 4, Italy considers that it has chosen “the same procedure” as any other State Party that has chosen the International Tribunal for the Law of the Sea or the International Court of Justice.[1]

India has not filed a declaration under article 287. However, she has filed a declaration in accordance with article 36(2) of the Statute of the International Court of Justice (ICJ) accepting compulsory jurisdiction at that institution. All things being equal, this declaration would normally be capable of establishing jurisdiction with the ICJ. This would be accomplished by reading the Italian declaration under UNCLOS with the Indian declaration pursuant to the ICJ statute both of which accept the jurisdiction of the ICJ. This is not the case when it comes to this dispute about the interpretation of UNCLOS. The Indian acceptance of ICJ jurisdiction comes with several exceptions. Some relevant ones are,

(1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement; […]
(5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court; […]
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction; […][2]

India, in its ICJ declaration, explicitly excluded compulsory jurisdiction before the ICJ over cases interpreting multilateral treaties unless all parties to the treaty are involved in the case. UNCLOS is a multilateral treaty and not every party to the treaty would be part of the ICJ case over the dispute between India and Italy. If these conditions hold, and the case is to be based on article 92, UNCLOS will govern the dispute and Annex VII will apply requiring arbitration.

There is also the possibility of obtaining jurisdiction before the ICJ by re-framing the issue as one of general public international law. Article 92 of UNCLOS addresses jurisdiction over a ship on the high seas, it does not address the principles for determining the location of an action for the purposes of establishing criminal jurisdiction. This jurisdictional question relates to principles of general public international law and has been decided by the world court in the past (most famously the Lotus case decided by the PCIJ long before UNCLOS).[3] The Indian acceptance of ICJ jurisdiction should be valid if the legal issue is outlined as going to general competence of States to legislate and enforce the law. India would therefore be subject to ICJ jurisdiction if Italy were to file an application with the Court. This formulation of the legal issue avoids the direct application of UNCLOS and renders Annex VII’s arbitration requirement inapplicable. It is worth pointing out that India does not accept compulsory jurisdiction where another State involved in the case only recently accepted ICJ compulsory jurisdiction. However, Italy need not accept compulsory jurisdiction to file a case with the ICJ.[4]

In short, there are likely two different international fora that can hear a dispute between Italy and India regarding the exercise of jurisdiction over the Italian military guards that allegedly shot and killed two Indian fishermen, a UNCLOS arbitration tribunal and the ICJ.

The option of bringing the dispute before a UNCLOS arbitration tribunal pursuant to article 287 and Annex VII UNCLOS seems to be the most straight forward. Both India and Italy are parties to UNCLOS and the incident involves actions that took place on the seas (something that would appear on its face to fall under the ambit of UNCLOS). Any such decision would be strictly limited to the interpretation of UNCLOS (due to the competency of the dispute resolution mechanism) and whatever jurisdictional principles the treaty purports to create between the States Parties on the seas.

The option of bringing the case to the ICJ is more appealing. Such as case, while speaking specifically to the location of “events” on the seas for the purpose of jurisdiction, could potentially be important for the way we understand the extraterritorial jurisdiction of States generally. The Court would have the opportunity to elaborate on the principles of territorial jurisdiction established in Lotus, a case that dates from 1927 and is quickly approaching its centennial mark.[5] The ICJ as an institution has a greater scope and will likely consider the consequences of its decision on other areas of the law, something a tribunal focused only on the law of the sea will not do. The possibility of a meaningful decision that will progressive advance the law is much more probable at the ICJ.

This post has not discussed other non-judicial forms of dispute resolution that that India and Italy could potentially select to put an end to their disagreement. For example, they could request mediation by the UN Secretary General, or they could submit the issue to a single arbitrator. They could also resolve the issue diplomatically. Given the current discourse on the issue, however, it is unlikely that the dispute will be resolved diplomatically. For similar reasons, selecting a single mediator or arbitrator seems unlikely. I have focused on the UNCLOS provisions and the ICJ as I think they are the most likely to be involved if the issue moves from the realm of intergovernmental wrangling to that of litigation.


[3] For a more detailed discussion on this point, and the meaning of article 92 UNCLOS, see my earlier post.

[4] Articles 35-36, ICJ Statute.

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

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12 Comments

Filed under News and Events, Public International Law

12 responses to “India v. Italy: Part Deux

  1. Pingback: Il contrasto alla pirateria marittima: le sfide attuali – A Lecture on Piracy by Prof. Ronzitti | The {New} International Law

  2. Sir,
    I have been following this case from the news papers and other sources. Only today I got this forum.
    Suppose an Indian citizen shoots from the Indian side of India/Pakistan border and kills a Pakistani citizen on the Pakistani side which country can try the case. The shooting was done from India and its effect was on the side of Pakistan. In this Enrica Lexie case the shooting was done from an Italian flagged ship across the sea over which all nations have equal rights and the shots reached the Indian flagged boat and killed two persons. If Inida has the right to try the Italian Marines because the death occurred on Indian boat, by the same principle will not Pakistani court have right to try the Indian who shot from Indian side and killed a Pakistani citizen.
    In the case of Lotus, Turkey tried the French captain. But in a similar case of the Queen v.Keyen it was not so. The German vessel collided with the British vessel in the 3 miles limit of territorial waters of England, it capsized and one British citizen was drowned. Though lower court’s verdict was for trying the German captain the higher court consisting of some eminent jurists gave the verdict that it was for Germany to try the case. So the Lotus need not be the sole precedence for this. As you suggest this case should go International Court of Justice and have a ruling which will be the proper precedence for all future incidence like this.
    Is it the place where the crime is initiated or the place where the effect was felt is more important.
    I have been reading some of the topics on this type of crimes. In one case a person sent poisoned candies from California to some person in some other state (the name of which I forgot ) and the person died. The case was tried in California where the crime was initiated.
    Hope you will see this. This is some two months old blog.
    With regards,
    V.K.Guptan

    • Mr. Guptan,

      Thank you for your comment. I think you properly identified the issue, as one of ascertaining where the crime took place. I would caution, however, against an over reliance on cases that take place entirely within one State (such as you American example form California) or collision cases (such as your British example). Neither, strictly speaking, is on the same point as your Indian/Pakistani hypothetical. The collision issue was directly address in UNCLOS and provides specifically for exclusive jurisdiction of the flag State. Any case dealing with internal delegation of jurisdiction (such as poisoned candy sent from California to another US state) will not require the application of international rules of jurisdiction.

      More interesting to me is your apparent assumption that either the State where the crime was begun or the State where the crime was completed must in some way take precedence over the other. There are those that have suggested that there is a hierarchy of jurisdictional basis, but I do not think that this is (for the most part) correct. One might be able to say that the territorial principle of jurisdiction takes pride of place and can always (or should always) be awarded special characteristics.

      In this case both States would claim jurisdiction based on the crime which took place on its territory. Seeing as though both States have a jurisdictional basis, they both have jurisdiction. Any issue as to which State “should” exercise that jurisdiction leaves the realm of law and enters into public policy, which of course both States have different interests and different policies. There is also the issue of what factors should be taken into consideration (fair trial, chances of victim satisfaction etc.) none of which have been established as a matter of international law. The better answer is that both States have jurisdiction and any subsequent trial will be governed by the principles of ne bis in idem and other preclusive doctrines.

      Thank you for reading. I hope you enjoyed the blog.

      Best,

      -Joseph

      • Sir,
        After reading your reply to which I sent an acknowledgement, I was still thinking of the issue. I have come to some ideas and here are they. Hope I am not boring you.
        With Best Regards,
        V.K.Guptan vkguptan@yahoo.com

        Crime and Punishment

        When we were all barbarians our criminal justice was done more on the basis of vendetta. An eye for an eye or an ear for an ear. Probably when returned it could have been with some interest also added to the principal. With advance from the barbarian state to modern civilized state did not our criminal justice also advanced? Do we punish someone who has perpetrated a crime as a vendetta? Is not the modern cultured society dispense its justice system as a deterrent so that perpetrator will not repeat it again? A crime done against an individual is as much a crime to the society as well. Is it not why all the criminal cases are between the government and the perpetrator. The victim or the heirs of the victims do not have much voice in the case. They can only implead im the civil aspect of the case and not in the criminal aspect.
        Why the society takes up the case? Because if the perpetrator may again do it against the society. He should be restricted from repeating it. So he has to be punished so that he understand that he has done a crime against the society and should not repeat it. It is not vendetta by the victim. It is to reform the criminal so that he is no danger to the society.
        Which society should do this act of reforming the person who has done the criminal act? It is the society of which the individual who has done the crime is a part. It is not the victims side with whom he had only a casual contact. As long as a vendetta is an acknowledged system of criminal justice, the victim nor the society of which the victim is a part has no right to deal with the criminal aspect. Only the civil aspect where the victim or the victim’s legal heirs can approach for appropriate compensation. So the society representing the victims cannot deal with the criminal case.
        In the case of Enrica Lexie, when the two Italian Marines shot the two Indian fishermen, it is the Italian citizens who have committed the crime. Their sojourn in Indian territory is transitional. It is for very short while and in the normal case it cannot be expected that they will be repeating the same shooting again. India need not have any concern on that count.
        On the other hand for Itally it is not so. These are two Marines who could be armed quite often. If they are trigger happy to shoot at anyone at the slightest provocation of suspicion they are dangerous to the Italian society. So it is Italy which should take precautionary steps that such things do not repeat.
        And so I think it is Italy who should try the marines and not India.

  3. Thank you sir. I am much indebted to you for giving an insight into this affair.
    With best regards,
    V.K.Guptan vkguptan@yahoo.com

    • Thank you for your thoughts as well. Please permit me to respond by way of a question: why is it in your view that an individual surrenders up his right to vengeance to society?

      I ask this question because I think the constellations of why we punish behavior is more complicated than one might at first think. For instance, the idea of vengeance and justice can be very closely related. Justice is vengeance exacted in accordance with the law. For example, when victims call for the perpetrators of crime to be punished the call for “justice”. But what is this but a call for vengeance from their perspective? The giving of the right to punish to society is a way of making sure that only the guilty are punished, as an enraged victim may mistakenly exact vengeance on an innocent party. A disinterested tribunal is less likely to do so. At the same time this then explains why we punish those who will not be “reformed”, we do it to satisfy the desire for vengeance and possibly to deter others from committing similar crimes. If both these factors hold true, there is no reason to limit punishment to the society of nationality, as vengeance will be satisfied if the perpetrators are punished and deterrence will exist as well.

      Best regards,

      -Joseph

      • Hai Joseph, It is an interesting response. When you put it like that I cannot but agree with you. What I write below is not refuting your view but just loud thinking on what you wrote.
        Why an individual surrenders his or her right to the society to punish or take vengeance? I think if it is left to individuals to settle issues there will be mayhem. The whole society will be a bunch quarreling elements with no one to control. So to keep order in society it should be the society who should settle matters between individuals.
        Also if individuals have to settle scores then it will be a question of ‘might is right’. Those who are weak will not be able to get justice. So society has to step in.
        I fully agree that vengeance and justice are closely related. Only justice should not be ruled over by vengeance. In fact nations itself do vengeance in the garb of justice. Trial of war criminals or despotic dictators. Those who are 90 years and like that , question of reforming does not arise.
        As you say when a court of justice punish a person who has done a crime it is deterrent to that individual as well as a warning to others that they should not do like that.
        Incidentally, you wrote that the victim always call for justice. I will not put much weightage to that. From the view point of the victim whatever may be the facts he or she will assert that he or she has been wronged. It is human psychology.
        Best Regards’
        V.K.Guptan

  4. Pingback: India v. Italy Part Four: Functional Immunity | The {New} International Law

  5. Arty

    Hi,
    Please note that India DID make 2 reservations (declarations) when it ratified UNCLOS :
    India ratified United Nations Convention on the Law of the Sea (UNCLOS) on 29 June 1995 with certain reservations to the Convention [12]:

    UNCLOS article 287: “India reserves the right to make at the appropriate time the declarations provided for in articles 287 and 298, concerning the settlement of disputes”
    UNCLOS article 298: “India understands that the provisions of the Convention do not authorize other States to carry out in the Exclusive Economic Zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal State”

    SOURCE: UNCLOS treaty

    • Thank you for your observations. I do not think these reservations do not effect the substance of the post or the over all situation. I would be happy to hear why you might disagree.

  6. yguo@law.jmls.edu

    Has there been a case where the parties chose to settle their disputes concerning maritime boundary delimitation pursuant to Article 287 of the UNCLOS before the ICJ? Thank you very much.

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