Tag Archives: India

Issues of Immunity: India v. USA

On 12 December 2013, Federal authorities in New York City arrested Mrs. Devuani Khobragade – an Indian consular official – on charges of visa fraud and making false statements. The charges arise out of allegations that Mrs. Khobragade paid her house keeper less than minimum wage after pledging to do so in the housekeeper’s visa application. Such declarations are required to obtain visas for domestic workers to enter the United States.

Immediately after the arrest, Mrs. Khobragade claimed she was not subject to trial because, as a diplomat, she should benefit from personal immunity. Then, following these statements, she was transferred from the Indian consular mission in New York City to the United Nations diplomatic mission. The United States claims any such transfer will not effect the criminal trial. This post will analyze both of these claims: (1) if Mrs. Khobragade is entitled to immunity as a consular official and (2) if her transfer to the United Nations mission would prevent her trial.

Consular Immunity

Article 43 of the Vienna Convention on Consular Relations of 1963 provides that,

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

This provision provides for “functional immunity,” or, in other words, immunity from suit based on official acts. Visa applications and the employment of a domestic are not and should not e considered “official” acts. Their only connection to the work of the mission is that they allow the consular agent more time to work, as they will not need to tend to housework. However, if this were to an official at, all acts by the consular agent could be “official” in that they allow the agent to go about their day. Such total immunity from jurisdiction for the individual agent is better conceived of as “personal immunity” and is not established anywhere in the Vienna Convention on Consular Relations. In fact, it is implicitly excluded.

Article 41(3) of the convention reads in pertinent part,

If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.

The convention clearly allows the institution and prosecution of criminal cases against consular officials. While agents may not be arrested based on minor charges (as set out in article 41(1)), they are liable to imprisonment upon conviction (this is article 41(2)). These provisions clearly set out the consular officials do not benefit from personal immunity and may therefore be prosecuted.

Considering that the charges against Mrs. Khobragade do not involve “official” acts and her post did not carry personal immunity, the United States may properly prosecute her based on allegations of Visa fraud and making false statements.

Diplomatic Immunity

The Indian solution to the problem of Mrs. Khobragade’s forthcoming trial has been to transfer to the diplomatic mission to the United Nations. A post, it is believed, will prevent her trial. This part of the post will evaluate this proposition.

Article 31(1) of the Vienna Convention on Diplomatic Relations of 1961 states that,

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

This rule is not subject to conditions. It is true that article 41(1) sets out that diplomatic agents must respect the law of the receiving State. However, this has nothing to do with immunity or ability to arrest or being subject to trial. Article 39(1) of the convention establishes when immunity begins, and when it ends. It reads,

Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry of Foreign Affairs or such other ministry as may be agreed.

The immunity continues until the diplomat has had a reasonable amount of time to leave the country as set out in article 39(2).

The terms of the convention clearly subtract diplomats from the jurisdiction of the host State, no exceptions (except waiver by the sending State). This personal immunity ceases upon departure of the diplomat, at which point prosecutions for criminal may be begun, or presumably, resumed. Even if this were not the case, and a prosecution could legitimately continued, the diplomatic agent would not be required to appear in court and could not be taken into custody on conviction. Any enforcement would have to wait until the person lost their diplomatic status, at which point they would already be out of the country and outside the reach of the domestic justice system (extradition could be requested, but it is very unlikely any such request would be granted).

In the present case, should Mrs. Khobragade take up a diplomatic post at the Indian mission to the United Nations, she will likely be out of reach of the American justice system.

There are still some details of this matter than cannot be addressed in a blog post such as this, not all the facts are in. Questions remain as to whether the charges against Mrs. Khobragade are well founded. Information is also lacking regarding the exact procedural mechanisms that are necessary for her to officially transfer to the Indian diplomatic mission to the United Nations. Whatever the specifics, however, it would seem to be counter intuitive if she were allowed to escape justice (and remain in New York) due solely to the clever shuffling of paper resulting in her job moving from one Indian office to another. Unfortunately, from the outside it is not possible to gain access to all the necessary documents to fully analyze the situation and determine what should happen in this specific case.


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India v. Italy: The Indian Supreme Court Decides

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

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]

The Enrica LexieAttorneys 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.

International Maritime OrganizationThis 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.

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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.

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India v. Italy Part Five: The Saga Continues

The Enrica Lexie incident has been widely discussed on this blog and in the international media. So far the case has been heard by courts in the Indian state of Kerala and has been argued before the Supreme Court of India. This last court has had the matter under consdieration since September of this year after a full court argument and briefing. On 21 November 2012 the Supreme Court issued a Suo Motu Petition requesting additional briefing regarding a “Recent Firing Incident, Widely Reported in the Press, Resulting in the Death of Two Persons, Allegedly on Account of Use of Firearms by Some Private Security Personnel”. Nothing in the petition and order issued by the court directly identifies it with the Enria Lexie incident, and in fact, the order was issued in relation to another shooting incident in downtown new Delhi, but its content and reference could address issues raised by the Enrica Lexie case.

The Justices requested additional briefing from Ministry of Home Affairs for the Union of India on four issues: (1) what legal rules exist to govern the use of private security agencies; (2) what rules exist for the issuance of firearms to such companies’ personnel; (3) what rules govern the use of such firearms by said personnel and; (4) “what are the rights and duties of private security agencies under the law, particularly, vis-a-vis the criminal law of the land”.

From the point of view of International Law, the Enrica Lexie incident raised two major questions the jurisdiction of India over the events and the immunity of the Italian soldiers from said jurisdiction. If the responses to this order can be applied to the Lexie case, it would appear that the Court has found a basis to affirm India’s jurisdiction and is in a possition to look and see which national laws would govern the substantive case.

I will report more on the case as it develops.


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India v. Italy Part Four: Functional Immunity

The Enrica Lexie

Over the past few months I have written several blogs discussing the Enrica Lexie controversy between India and Italy relating to the shooting of two Indian fishermen by two Italian military guards. The first post discussed the principles of jurisdiction and whether or not it would be proper for India to prosecute the Italian marines for murder. The second post discussed the possible international fora where the dispute between India and Italy could be decided. The third post raised the issue of possible functional immunity for the Italian marines from Indian jurisdiction. This post will further discuss the notion of functional immunity in the absence of a Status of Forces of similar agreement.[1]

The idea of functional immunity is that it protects State agents from the jurisdiction of other States “for official acts done while in office.”[2] Functional immunity for members of the military has roots in the diplomatic discourse of the nineteenth century. An early documented instance of a claim of functional immunity came in the case of a criminal charge against one MacLeod in 1841.[3] Mr. MacLeod, a member of the British armed forces, allegedly attacked a ship moored in New York State while under orders from his government to do so. Much later, he was arrested while visiting the United States on unrelated business and put on trial in New York for a murder resulting from the destruction of the ship. The British government objected claiming that the attack was an official act and therefore any responsibility born by Mr. MacLeod should be transferred to the United Kingdom resulting in his release from custody and trial. The British and American governments essentially agreed,

[t]hat an individual, forming part of a public force, and acting under the authority of his government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute.[4]

Nevertheless, Mr. MacLeod was tried in New York State on the allegations of murder.[5] While the executive branch of the United States Federal Government seems to have conceded that MacLeod should have benefited from functional immunity, this was not a universal sentiment in the federal government at the time. In response to this controversy US Senator Calhoun stated on the Senate floor,

[n]ow, there can be no doubt that the analogous rule, when applied to individuals, is, (that both principal and agents, or, if you will, instruments, are responsible in criminal cases; directly the reverse of the rule on which the demand for the release of McLeod is made.   […] Suppose, then, that the British, or any other government, in contemplation of war, should send out emissaries to blow up the fortifications erected, at such vast expense, for the defense of our great commercial marts,  […] would the production of the most authentic papers, signed by all the authorities of the British Government, make it a public transaction, and exempt the villains from all responsibility to our laws and tribunals? Or would that Government dare make a demand for their immediate release? Or, if made, would ours dare yield to it, and release them?[6]

Senator Jonhn C. Calhoun

This statement by Senator Calhoun should make it clear that, in conjunction with the actual trial of Mr. MacLeod, the principle of functional immunity for military orders was not so firmly established in 1841. However, it is true that statements of the federal executive, as responsible for foreign relations, bear more weight on the issue than those of one senator and the authorities of New York State. Even if this case were not somewhat equivocal about functional immunity for official acts by members of the military, subsequent practice seems to indicate such immunity no longer exists.

A more recent controversy involving the assertion of functional immunity for State agents was the Rainbow Warrior Affair in the 1980’s. This incident involved French agents who were sent to New Zealand to destroy a Greenpeace vessel, the Rainbow Warrior, being used to protest French undersea nuclear tests. After destroying the ship, the agents were arrested and charged with the murder of a journalist who died on board. The dispute over the incident between France and New Zealand was submitted to the UN Secretary-General for arbitration. One of the issues that arose in the case dealt with France’s claim that her agents should be released from custody as they benefited from functional immunity.[7] New Zealand objected to this and argued,

military personnel acting under official orders are [not] exempt from personal responsibility for criminal acts. “Superior orders” is not a defence (sic) in New Zealand law, nor is it a defence (sic) in the legal systems of most countries. It is certainly not a defence (sic) in international law, as was clearly established in the judgements (sic) of the Nuremberg Tribunal and the post-Nuremberg war crimes trials.[8]

Unfortunately, the issue of functional immunity was not settled or directly addressed by the arbitration decision. The important point here is that the existence of the immunity, theoretically recognized (if not ignored) in MacLeod, was denied by one of the parties to the dispute in categorical terms. The past “usages of all civilized nations” to afford immunity to official acts of this type appears to have eroded in the intervening 140 years. Not the least of all due to developments after World War II.

There is at least one important distinction between the MacLeod case and the Rainbow Warrior Affair: the accused in MacLeod was a uniformed military officer at the time his alleged crime was committed while the French agents were covert operatives. One could argue that openly carrying out military orders is different in type than covert action. While this is an interesting point, modern practice does not seem to support such a distinction. One current example is the up coming criminal case against Israeli military officers in Turkey.

The MV Mavi Marmara

The case relates to the Mavi Marmara Incident which occurred in 2010 when a flotilla of ships departed from Turkey en route to the Gaza Strip in an attempt to break the ongoing Israeli blockade. The flotilla was intercepted by Israeli military forces. When the flotilla refused to turn around, Israeli forces boarded some of the ships, in particular the Mavi Marmara, leading to the deaths of nine activists. The use of force during that interception was later found to be “excessive and unreasonable” by a UN panel of experts.[9] Turkey recently brought charges against four senior Israeli military commanders for their parts in the killing of the activists. These commanders were implementing official military orders in carrying out the raid on the Gaza bound flotilla. Turkey obviously does not feel that these commanders are entitled to MacLeod style functional immunity for their alleged crimes.[10] This case is just beginning and to my knowledge no judicial decisions have yet been issued. The very fact that Turkey is willing to bring the charges is indicative of the status of functional immunity for uniformed military personnel who commit crimes in the course of carrying out their duties.

These cases from the last 180 years demonstrate that the basis for asserting a general rule of international law establishing functional immunity for uniformed military personnel is shaky at best. One of the earliest cases, while asserting the rule, did not provide an example of its implementation. By the 1980’s, and after the developments of the Second World War, it could be openly asserted that functional immunity for official acts that amount to crimes did not exist. Current practice, right up to last month, appears to be following the course laid out by modern practice and not the anachronistic rule agreed to by the British and American governments in the 1840’s.

Modern rejection of a general norm providing functional immunity for military personnel carrying out their official duties will have serious consequences in the dispute between India and Italy. It essentially means that Italy’s claim to exclusive jurisdiction over the marine guards is incorrect. India has jurisdiction to try the guards because the committed crimes within India’s jurisdiction as understood by international law.[11]This is a desirable rule. As noted long ago by Senator Calhoun, to do otherwise would produce absurd results.

[1] Status of forces agreements or SOFA’s generally provide that the armed forces of one country, while finding themselves within the jurisdiction of another, will only be subject to the jurisdiction of their home State. There is of course no requirement that SOFA’s provide for exclusive jurisdiction.

[2] Malcolm N. Shaw, International Law (6th ed) p. 738 (2008).

[3] Moore, A digest of international law as embodied in diplomatic discussions, treaties and other international agreements, vol. 2, at § 217 (1906).

[4] Ibid. Statement of US Secretary of State Webster.

[5] He was acquitted for want of evidence.

[6] Sen. Calhoun in response to the MacLeod case, US Senate 1841 documented in Moore.

[7] Memorandum of the Government of the French Republic to the Secretary-General of the United Nations regarding the Rainbow Warrior Affair (1986).

[8] Memorandum of the Government of New Zealand to the Secretary-General of the United Nations regarding the Rainbow Warrior Affair (1986).

[9] Turkey charges senior Israeli commanders in Mavi Marmara case, PanARMENIAN.Net (29 May 2012)

[10] It is worth noting that there may be other arguments to void Turkish jurisdiction in this case such as the location of the raid. This is something that might be worth exploring at a later date.

[11] This was the subject of my first post on the Enrica Lexie incident.


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Il contrasto alla pirateria marittima: le sfide attuali – A Lecture on Piracy by Prof. Ronzitti

On Monday, 16 April 2012, I had the pleasure of attending a lecture by Professor Natalino Ronzitti at the Libera Università Internazionale degli Studi Sociali Guido Carli in Rome where he discussed the arrest, prosecution and punishment of pirates. Prof. Ronzitti has taught at universities around the world from Italy, the United Kingdom, the United States and Egypt. He has also served as and advisor to government ministries and published on the issues of piracy, national sovereignty, armed conflict and international law generally. The lecture hit a high point of interest when Prof. Ronzitti discussed the events on the Enrica Lexie, something that has been discussed often on this blog. He argued that Italy should have exclusive jurisdiction over the Italian guards accused of killing the Indian fishermen.

Prof. Ronzitti started by setting out what is meant by “piracy” in international law. By definition, piracy is a crime that is committed on the high seas, meaning not within the territorial sea of any State. That is to say that “piracy” for the purpose of this discussion is the crime iure gentium (international crime), as opposed to any set of acts called “piracy” by the laws of a particular State. Within this context, Prof. Ronzitti set out two necessary criteria for an act to be considered “piracy”: (1) that the events involve at least two ships and; (2) that the would-be piratical acts were committed for private ends. This last criterion, for example, excludes acts that are committed for political ends.

Next the professor turned to the methods available to prosecute and punish piracy. The primary method he identified was the arrest and trial of the alleged pirates by national authorities (a solution acknowledged to be often inconsistent due to varying national laws and practices). He emphasized that only national military ships (and those other clearly identified ships dedicated to the purpose by national authorities) are authorized to stop pirates. Private individuals or vessels are not permitted to go pirate hunting. The right to seize pirates on the high seas includes the limited right to stop vessels that fly under the flag of a State different form the one of the military vessel conducting the stop. In the case of pirates off the Somali coast, the United Nations Security Council has authorized States to conduct piracy suppression actions in Somali national waters and under certain circumstances to pursue the pirates aground in Somalia.[1]

This brought the discussion to the legal methods available to private ships to protect themselves from pirates. Prof. Ronzitti referred to the work of the International Maritime Organization (their website can be found here). In particular he referenced the fact that it is permissible to have armed security on commercial ships to repel pirate attacks. However, these armed personnel are limited to a defensive role and are not permitted to pursue the pirates. He pointed out that France uses its own military to provide security, while Spain employs private guards and Italy (at least legislatively) permits both.

At this point the lecture turned to address the growing dispute between India and Italy over the Enrica Lexie. This is the incident involving the Italian guards on the oil tanker that allegedly fired on, and killed, Indian fishermen whom they mistook for pirates. These two Italian guards are currently in Indian custody awaiting trial. The controversy centers on whether or not India can rightly assert jurisdiction over the case under governing principles of Public International Law. (A more detailed description of the events and the controversy can be found here.)

Prof. Ronzitti started by noting that the events took place on the high seas (admittedly within India’s exclusive economic zone, however, that is still the high seas) and that the facts of the incident are in dispute. However, he wished to point out that the current incident would have been avoided had the Italian vessel not diverted to Kochi. The reason stated for the Lexie going to Kochi was to identify the pirates who had attacked the ship earlier in the day. This of course was a pretext that permitted the Indian authorities to seize the vessel and arrest the two Italian military guards. Had the vessel not diverted to Kochi, there would have been no arrest.

On the issue of jurisdiction over events on the high seas, Prof. Ronzitti discussed three articles of the United Nations Convention on the Law of the Sea (UNCLOS). He first mentioned Article 97 as a cited basis for denying Indian jurisdiction over the events in question. This article provides,

1. 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. […] 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.

Prof. Ronzitti quickly pointed out that while the provisions of this article refer to “any other incident of navigation”, the real meaning of this phrase is to encompass other collisions that may not be between two ships (such as a vessel colliding with an offshore oil rig). Another article referred to was Article 94, however it too is of little assistance to the Italian case.[2] Prof. Ronzitti then turned to Article 92 which reads in pertinent part,

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.

The professor argued that this article would be a better basis to assert exclusive Italian jurisdiction over the events on the Enrica Lexie. However, he also admitted that it could be argued that the shooting events took place both on the Italian vessel and on the Indian ship thereby establishing jurisdiction under Article 92 for both States. A more complete description of the applicatoin of this “objective” teritorial principle to this case can be found here.

Prof. Ronzitti’s strongest argument for exclusive Italian jurisdiction over the guards accused of killing the Indian fishermen was based on the idea of functional immunity. He emphasized that the Italian guards are members of the Italian military  (he noted also that the legislative framework for private Italian guards has not yet been workably put in place). In particular, he pointed out that both national Italian law and United Nations resolutions support the use of armed guards to repel pirates. As agents of national and international policy, he argued, the actions of the Italian military guards should be attributed to Italy, not the guards individually. This would exclude their criminal trial in India. Prof. Ronzitti noted that this kind of function immunity has a basis in customary international law going back to the early 1800’s.[3]

The lecture was graciously organized by Professor Marina Mancini of the Dipartimento di Giurisprudenza at LUISS.

[1] Prof. Ronzitti made reference to UN Security Council Resolution 1851 of 2008.

[2] It reads in pertinent part “7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons 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 or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.”

[3] He specifically referred to the McLeod Case which can be found in, Moore: A digest of international law as embodied in diplomatic discussions, treaties and other international agreements, vol. 2, Washington, Government printing office, 1906 at § 217.


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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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