India v. Italy: The Indian Supreme Court Decides

Massimiliano Latorre e Salvatore Girone, i due marò arrestati dalle autorità indiane

On January 18, 2013 the Supreme Court of the Union of India entered the fray of the Enrica Lexie incident by issuing a decision on the fate of the Italian military guards, Massimiliano Latorre and Slavatore Girone, who are accused of killing two Indian fishermen. This incident has been discussed at length on this blog. An overview of the facts and prior developements can be found by following the links here. The court, in clear terms, reaffirmed India’s jurisdiction over the alleged crimes based both on international and national laws. The court also made certain pronouncements regarding internal divisions of jurisdiction within India. My comments here will be limited to the international legal aspects of the decisions.

Italy challenged the jurisdiction of the Indian court on several grounds. The main thrust was that the guards could not be tried before the Indian courts because their actions were taken as part of their official military duties and therefore covered by sovereign immunity.[1] Italy also made arguments based on the United Nations Convention on the Law of the Sea (hereinafter UNCLOS), principally that the flag State has exclusive jurisdiction over the events that take place aboard a vessel on the high seas.[2] Part of this second argument was an assertion that the Indian fishing boat was not “Indian” within the meaning of the convention and that article 97 gave exclusive jurisdiction to Italy.[3]

Attorneys for India responded by making arguments primarily based on national provisions extending the penal code to the areas adjacent to the territorial sea such as the international water where the incident took place.[4] The Union’s international law arguments included a detailed analysis of UNCLOS. India argued that article 97 UNCLOS was limited to collision type events and had no bearing on jurisdiction in the Enrica Lexie case.[5] This fact, along with the assimilation of ships to national territory and the objective territoriality principle, were sufficient to ground Indian jurisdiction.[6] India also argued that the passive personality principle would grant jurisdiction in this case.[7] On the issue of immunity, the Union pointed out that the State has a policy of not entering Status of Forces Agreements excluding national jurisdiction and that there was no basis for a sovereign immunity claim in a criminal case.[8]

The actual decision of the court was issued in a two-page order. The motivation or reasoning of the decision came in two opinions, one by the Chief Justice. These two opinions are not completely consonant even though they agree in the result. We will turn first to the Chief Justice’s views before analyzing those expressed in his fellow judge’s concurrence.

The Chief Justice identified two issues that needed to be resolved in the case: one national and one international. The international problem was that of Indian jurisdiction based on applicable law, including UNCLOS, which India was bound to follow.[9] The Chief Justice started by refuting the Italian argument based on article 97 of UNCLOS. After observing that there was no collision in this case the justice reasoned

The next question which arises is whether the incident of firing could be said to be an incident of navigation.  The context in which the expression has been used in Article 97 of the Convention seems to indicate that the same refers to an accident occurring in the course of navigation, of which collision between two vessels is the principal incident.  An incident of navigation as intended in the aforesaid Article, cannot, in my view, involve a criminal act in whatever circumstances. In what circumstances the incident occurred may be set up as a defence in a criminal action that may be taken, which legal position is accepted by both the countries which have initiated criminal proceedings against the two marines. Even the provisions of Article 100 of UNCLOS may be used for the same purpose. Whether the accused acted on the misunderstanding that the Indian fishing vessel was a pirate vessel which caused the accused to fire, is a matter of evidence which can only be established during a trial.  If the defence advanced on behalf of the Petitioner Nos. 2 and 3 is accepted, then only will the provisions of Article 100 of the Convention become applicable to the facts of the case.[10]

Following the Lotus case, therefore, jurisdiction would be proper.[11] Next, the justice observed that States only have limited jurisdiction outside of the territorial sea that are limited by UNCLOS.[12] Unfortunately, this limit is not described and the Chief Justice asserts Indian jurisdiction over the incident based on this limited grant without further deliberation.[13]

Judge Chelameswar issued an opinion agreeing with the judgment but on different grounds. His views were almost entirely based on internal law. The important international component was his assertion that jurisdiction itself is based on “the legitimate interests” of the State asserting its authority.[14] He then used the passive personality and the objective territorial principles as evidence of this existing jurisdiction.[15] Either of which would therefore be sufficient to ground jurisdiction in this case.

I would like to begin my analysis by looking to the contentions surrounding article 97 UNCLOS. This provision reads in pertinent part,

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.

Italy argued that the shooting was an “incident of navigation” and so wholly within her jurisdiction.[16] Both opinions corrected concluded that article 97 was implemented with the limited scope of overturning the ruling in the Lotus case when it came to collisions and similar events on the high seas. It was not designed to undo the general principles of State jurisdiction. The problem with the justices’ analysis lies rather with the application of the passive personality principle.

Article 92 of UNCLOS provides,

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. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

This is enough to preclude the application of the passive personality principle. If the nationality of the victim were enough, India would have had jurisdiction over the events if they had occurred entirely on board the Lexie. Such a result would render article 92’s provisions on exclusive jurisdiction without meaning. Such a reading should therefore be avoided. However, given the existence of other bases of jurisdiction, the justices’ overstatement of the application of the passive personality principle is not fatal to the international validity of the judgment.

The most unfortunate part of the Supreme Court’s judgment was its declining to fully address the issue of sovereign immunity for the Italian guards. The court rejected the argument but did so without an analysis of applicable international law. The court instead punted on the issue leaving it to be re-litigated based on the evidence in light of article 100 of UNCLOS. This last provision is nothing more than an obligation for the States party to co-operate in the fight against piracy. Presumably, this means that if the Italian guards were actually fighting piracy, article 100 UNCLOS would protect them from trial. This, however, would be a strange and unfortunate interpretation of a treaty provision that mentions neither jurisdiction nor immunity.

Most of the UNCLOS aspects of the Enrica Lexie incident appear to have been resolved by the Supreme Court of India. What remains now is a determination on the immunity of the guards and the facts of the case. It seems to me, that if the guards are determined to have been “fighting piracy” they will in fact be innocent of the crimes with which they are accused. At the same time, under the court’s probable reading of UNCLOS, this fact will grant them immunity. If they are instead found to have been acting outside of their mandate (for whatever reason) they will in fact be guilty of the crimes with which they are charged and not benefit from immunity. The Supreme Court would have done better to settle this issue once and for all and leave the trial to address the accusations alone.

---

[1] Decision of the Supreme Court at ¶¶ 7, 13, 29, 42, 45.

[2] ¶ 26.

[3] ¶¶ 26, 29, 31, 38.

[4] ¶¶ 51-52, 55.

[5] ¶ 64.

[6] ¶¶ 60, 65.

[7] ¶ 63.

[8] ¶¶ 69-70.

[9] ¶ 97.

[10] ¶ 94.

[11] ¶ 95.

[12] ¶ 99.

[13] ¶ 100.

[14] ¶ 25 of the concurring opinion.

[15] ¶¶ 27-28.

[16] Decision of the Supreme Court at ¶¶ 26, 29.

Review of International Tribunal Decisions for the Beginning of 2013

After the start of the New Year we are back with a review of decisions from the different international tribunals. This week has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR).

International Criminal Law

ICTY

Prosecutor v. Popović et. al.[1]

Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero

Background

The accused Milan Gvero was convicted at trial of international crimes and sentenced to five years in prison, he was granted early release in 2010, after which he suffered a stroke.[2] Counsel filed a motion to discontinue the appellate proceedings arguing that because of his medical condition, Mr. Gvero could no longer meaningfully participate in the proceedings.[3] Medical reports were filed and examinations ordered and conducted.[4] The Appeals Chamber denied the motion.

Reasoning

The Chamber noted that an accused’s ability to participate on appeal was based on his “mental capacity to understand [the essential of the proceeding], and the mental and/or physical capacity to communicate, and thus consult, with his counsel.”[5] The Chamber weighed conflicting medical reports, but concluded that Mr. Gvero “has sufficiently recovered from his stroke to enable him to participate” and so the proceedings could proceed.[6]

ICC

Prosecutor v. Muthaura & Kenyatta[7]

Order Requesting Observations in Relation to the “Defence Application for Change of Place Where the Court Shall Sit for Trial”

The two defense teams filed applications requesting the Trial Chamber to conduct the trial either in the Republic of Kenya or in the Republic of Tanzania at the site of the ICTR.[8] These requests were rejected on procedural grounds that under Rule 100, the application needs to be sent to the Presidency.[9] The defense resubmitted its application to the Presidency, which in turn issued a decision requiring the Chamber to “establish” the views of the parties before making a recommendation on moving the trial.[10] In accordance with this order, and following Article 3 and Rule 100, the Chamber requested the Prosecutor, the defense and the legal representatives of the victims to make their views known on moving the trial to Kenya or Tanzania.[11]

Prosecutor v. Katanga

Decision on the Request for Suspensive Effect of the Appeal Against Trial Chamber II’s Decision on the Implementation of Regulation 55 of the Regulations of the Court

Background

The trial against Mr. Katanga was severed from that against Mr. Chui and also informed the parties that it would consider alternate forms of liability for the accused.[12] In December 2012, Mr. Katanga was granted leave to appeal the decision and rejected a request to extend the time limit to file his views on the consequences of the impugned decision until after judgment by the Appeals Chamber.[13] He renewed this request before the Appeals Chamber as part of the interlocutory appeal.[14] The Prosecution did not oppose the motion.[15] The Appeals Chamber ordered the stay.

Reasoning

The Appeals Chamber held, “that, in this appeal, which is directed against a decision that was rendered at the final stage of the trial proceedings, the need to preserve the integrity of the proceedings overrides any other consideration. In this regard, if the trial proceedings continued based on the Impugned Decision, and that decision were eventually reversed on appeal, any adverse effects on the overall faimess of the proceedings and the rights ofthe accused might be difficult to correct. Similarly, even if the Appeals Chamber were to confirm the Impugned Decision, the Appeals Chamber’s judgment may have a significant impact on the further conduct of the trial proceedings. Therefore, the Appeals Chamber finds that the Trial Chamber should not proceed with the trial on the basis of the Impugned Decision and decides that the appeal shall have suspensive effect.”[16]

Prosecutor v. Gaddafi & Al-Senussi[17]

Decision on the Defence for Abdullah Al-Senussi’s “Urgent Application pursuant to Regulation 35”

The Pre-Trial Chamber ordered Libya to file its observations on the Accused Al-Senussi’s request that they transfer him to the ICC on an expedited basis based on the defense indication that Libya intended to try him before a military court before the end of January 2013.[18]

International Human Rights Law

ECtHR

Agnelet v. France & Legillon v. France[19]

Chamber Judgment

Background

In both cases the applicants complained of a lack of reasoning in the assize court judgments by which they were convicted and sentenced to imprisonment.

Reasoning

The Court reiterated the conclusions it reached in the Taxquet v. Belgium case3, and in particular the fact that the absence of a reasoned verdict by a lay jury does not in itself constitute a breach of the accused’s right to a fair trial. Having examined both the bill of indictment and the questions put to the jury in each case, it found that Mr Legillon had had sufficient guarantees to enable him to understand the verdict by which he was convicted, but that Mr Agnelet had not.

Eweida and Others v. the United Kingdom[20]

Chamber Judgment

All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.

The Court did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.

In Ms Eweida’s case, the Court held that on one side of the scales was Ms Eweida’s desire to manifest her religious belief. On the other side of the scales was the employer’s wish to project a certain corporate image. While this aim was undoubtedly legitimate, the domestic courts accorded it too much weight.

As regards Ms Chaplin, the importance for her to be allowed to bear witness to her Christian faith by wearing her cross visibly at work weighed heavily in the balance. However, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently more important than that which applied in respect of Ms Eweida and the hospital managers were well placed to make decisions about clinical safety.

In the cases of Ms Ladele and Mr McFarlane, it could not be said that national courts had failed to strike a fair balance when they upheld the employers’ decisions to bring disciplinary proceedings. In each case the employer was pursuing a policy of non- discrimination against service-users, and the right not to be discriminated against on grounds of sexual orientation was also protected under the Convention.

Sükran Aydin and Others v. Turkey[21]

Chamber Judgment

The case concerned the applicants’ complaint about a law, amended in 2010, which prohibited the use of any language other than Turkish during election campaigns. The Court held in particular that, while States had discretion to determine their linguistic policies and were entitled to regulate the use of languages during election campaigns, a blanket ban on the use of unofficial languages coupled with criminal sanctions were not compatible with freedom of expression.

---

[1] IT-05-88-A, 16 January 2013.

[2] Ibid. at ¶¶ 2-3.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶¶ 5-7.

[5] Ibid. at ¶ 21.

[6] Ibid. at ¶ 29.

[7] ICC-01/09-02/11, 17 January 2013.

[8] Ibid. at ¶ 2.

[9] Ibid. at ¶ 3.

[10] Ibid. at ¶¶ 4-5.

[11] Ibid. at ¶ 6.

[12] Ibid. at ¶ 1.

[13] Ibid. at ¶ 2.

[14] Ibid. at ¶ 3.

[15] Ibid. at ¶ 4.

[16] Ibid. at ¶ 9.

[17] ICC-01/11-01/11, 23 January 2013.

[18] Ibid. at ¶¶ 10-12

[19] Application numbers 61198/08 & 53406/10, 10 January 2013. All text is taken from the press release.

[20] Application numbers 48420/10, 59842/10, 51671/10 and 36516/10, 15 January 2013. All text is taken from the press release.

[21] Application no. 49197/06, 22 January 2013. All text is taken from the press release.

The Republic of Catalunya

Since the end of last year there have been a series of street protests^[1] and digital petitions^[2] circulating online calling for the creation of an independent Catalan State to be carved out of the Kingdom of Spain. The new State would be comprised at a minimum of the current Spanish region of Cataluña centered around Barcelona. There are political, social and historical arguments both for and against such independence. There are also serious questions about the scope or scale of any such independence (territorially speaking), how such a decision would be made, who would be nationals of the new State and about whether such a new State should be allowed into the European Union. This first post on the question of Catalan independence will address the preliminary issue of whether there is a right for Cataluña to secede from Spain and form an independent State. The analysis here will be in the context of secession and not “self-determination” as this second term has found its greatest application in the colonial context, which this s not.

An Brief Overview of the History of Cataluña

International law on secession requires a look to the historical situation of a territory and its people. For this reason, it will be useful to provide a basic overview of Catalan history before delving into the details of the legal regulation of secession.

Cataluña has always had an identity distinct from that of the central Spanish authorities in Madrid. Spain has always been blessed (and cursed) with a great linguistic and cultural diversity. Two northern regions have local populations that speak indigenous Iberian languages other than Spanish (Castilian), which is the local language of the regions around Madrid. The area around Bilbao in the north forms part of the Basque country^[3] where the local language is one of the most unique in the world with no apparent relationship to any known language.^[4] Likewise, the language spoken n the northeastern region of Cataluña is distinct from Spanish. Unlike Basque, however, both Catalan and Spanish are Romance languages independently descended from Latin. After the fall of the western empire the regions around Madrid and Barcelona formed part of different kingdoms and followed their own distinct historical paths. Cataluña only became part of what would eventually be known as Spain, the Kingdom of Castile and Leon, in 1469 when the crowns of Castile and Aragon were united with the marriage of Isabella and Ferdinand, the Catholic Monarchs. Spain itself would not be “united” until 1492 with the conclusion of the “Reconquista” and the defeat of the last Moorish kingdom of Grenada.

The relationship between the central authorities in Madrid and the people of Cataluña has not always been smooth, but for much of ther history together, the two regions mostly tended to their own affairs. The relationship between Cataluña and Castile began to erode as early as the 1700’s (if not before) due to increased tension provoked by Madrid’s attempts to centralize authority and the intervention of other European powers. Several wars were fought as part of larger European conflicts and tensions remained through the Spanish Civil War. The situation remained strained during the regime of Francisco Franco. Franco’s nationalist regime included campaigns to “spanish-ize” the region and reduce the influence and use of the Catalan language.

Legal Framework

Secession in cases where the “mother” country does not consent to the territory’s separation, outside of the colonial context, is not a common occurrence. As a result there are very few international decisions on the subject and even fewer that likely carry substantial legal weight. There are two judicial decisions, one international and one national, that are generally referenced when analyzing the issue of non-colonial secession and independence. These are the Aaland Islands Case and the Quebec Case.

The Aaland Islands Case is notable for its context in that the territory in question wanted to secede from a newly formed State that had just itself seceded from another State, namely Finland from the Russian Empire. The question of Aaland separation from Finland was referred to a panel of experts by the League of Nations, the UN-type body formed after the end of the First World War. The Aaland islanders, a predominately Swedish speaking people, wanted to leave Finland and join the Kingdom of Sweden. The islands had been part of the Russian Empire and administratively part of its Finnish provinces. The argument went that if Finland could secede from Russia, why could they not secede from Finland?

The expert panel responded by saying that secession would be possible but only if two conditions are cumulatively satisfied. These conditions were, in broad strokes, that the territory in question was well defined and that its people were the victims of systematized discrimination. While the panel felt that the Finns had a defined territory and were subject to discrimination by the Russian authorities, there was no evidence of such treatment of the Aaland Islanders by the Finnish authorities. Furthermore, the islanders were permitted to use their own language and were given administrative autonomy. Under those circumstances the panel felt that secession would not be appropriate.

The Quebec Case, heard by the Supreme Court of Canada, dealt with the right of Quebec to secede from Canada. Quebec is of course the primarily French-speaking region of an otherwise Anglophone country. The region has a different linguistic and cultural history from the rest of Canada and from time to time there is a flair up in nationalistic sentiment and talk of secession to form an independent State. The Supreme Court in hearing the case adopted the criteria of the Aaland Islands Case that in order to secede a group must have a defined territorial unit and that they people must suffer from persecution by the central authorities from which they would like to separate.

However, the court added another consideration that was not present in the Aaland Islands Case, that of democracy. The Supreme Court considered that participatory democracy and the full inclusion of a people and the territory would act as a cure legally removing the right to secede. Essentially, by having full participatory rights, if the people of a territory did not like the way they were being governed they could remedy the problem by modifying government policy with their votes. To have a right to secession in a democracy it would have to be shown that for whatever reason the ballot box is an inadequate remedy.

There are more recent occurrences of territories seceding or at least attempting to secede from an already existing State. Most followed wars and involved political interests of the surrounding States who afforded the new entity recognition. Examples include Bangladesh and South Sudan. The extent and type of the violence involved in these cases make them very different from that of the Aaland islanders or the Québécois. As such, these situations are also very different from the case of Cataluña. One might also be tempted to refer to the case of Kosovo and the recent decision by the International Court of Justice on the legality of the Kosovar declaration of independence. However, the situation in the ex-Yugoslavia at the time was very different from the present situation in Spain. Furthermore, the decision did not reach the issue of Kosovar independence but only addressed the legality of a declaration of independence under international law.

Under current law, in order to have a legal right to secession, Cataluña would have to demonstrate that its people are subject to discrimination by the central authorities, that they posses a defined territory and that any of their problems cannot be addressed by the curative effects of democracy.

Independence?

It is not my goal here to enter into a debate about the nature of the historical relationship between Cataluña and the rest of Spain, nor to debate whether there has been discrimination against the Catalan by the central authorities in Madrid. More importantly, I do not mean to pronounce on whether any historical discrimination has continued into the 21^st century. I will assume for the sake of argument that such discrimination has taken place in sufficient amount to satisfy the standard set out by international law for this discussion, as I do not believe that the lack or presence of such discrimination is important.

The above discussion should make it clear, without too much discussion here, that Cataluña does not at present have a right to secede from Spain as far as international law is concerned. The territory is an administrative unit and it has a history of being separate within Spain. There is also the allegation that the central authorities have historically and continue to discriminate against the Catalan people. Whatever the truth to these statements, there is no one who argues that Spain is undemocratic to the extent of imposing the will of the central authorities on Cataluña without their input or ability to participate in the national political/policy decisions.

My question though is why does the existence of a democratic State mean that there is no right to secede? It is true that allowing territories to leave already established States on the will of a vote would lead to significant amounts of instability in the international community. But in a modern Europe that is ever more integrated across national frontiers, why not let them go their separate way and join the Union? In effect the changes would be more administrative than substantive. If the people of a territory with a distinct history and language wish to peacefully form their own State, the only reason not to let them quietly leave is adherence to an outdated view of State power. A compelling reason for disallowing such a separation is necessary where the State is at the service of the people and not the other way around.

We may in fact have such a situation here where other interests outweigh the right of a people to leave a State and form their own. Even though Europe is continuously moving toward a greater degree of integration, the system is not yet mature enough to cope with such a fundamental shift in its internal political boundaries and possibly continual shifts in national boundaries. The precedent would run the risk of setting off a cascade of secessions creating political and social instability accross the continent, the very thing the Union was designed to prevent. The international system, and the European one at that, are not stable enough to allow as a general rule anything but amicable separations. However, future events may change the situation.

---

^[1] http://edition.cnn.com/2012/09/11/world/europe/spain-catalonia-protests/index.html

^[2] e.g., http://epetitions.direct.gov.uk/petitions/32321; http://elpais.com/elpais/2013/01/10/inenglish/1357847642_514841.html.

^[3] The Basque country also includes part of southwestern France.

^[4] http://www.britannica.com/EBchecked/topic/55366/Basque-language.

India v. Italy – A Decision by the Indian Supreme Court

The Indian Supreme Court today issued a decision confirming Indian jurisdiction over the two Italian guards caught up in the Enrica Lexie incident, something that has been talked about at length on this blog. The Court while reaffirming Indian jurisdiction, declared that the case should not be heard in the State of Kerala, the closest Indian state to the incident.

The exact motivation of the decision and an analysis of its content will come at a later date.