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In the face of the obliteration of UNCLOS principles in the waters to the east of India by a certain Communist regime, this award is surely a reinforcement of the rule of law even between two proud sovereign nations.
The Permanent Court of Arbitration at The Hague (PCA) published its ‘Extracts of the Award for Advance Publication’ on July 2, in the matter of The Italian Republic versus The Republic of India.
In effect this is the second pronouncement on the aspect of India’s jurisdiction to conduct a criminal trial of the Italian marines, the first being the Supreme Court’s contrarian ruling in Republic of Italy v. Union of India. Insofar as it appears from the award, the PCA has categorically rejected India’s contention and submission that it has the authority to exercise criminal jurisdiction over the Italian marines, i.e. sovereignty of India has been limited thereof. As a corollary, the PCA has further upheld Italy’s averment as to sovereign immunity of the said marines.
Though only the operative part of the award has been published, in my humble opinion, it was a foregone conclusion that the Supreme Court’s ruling as above cited would not hold forth, for it is patently devoid of an appreciation for India’s obligations under the UN Convention on the Law of the Sea (the UNCLOS) and the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (the Maritime Zones Act).
Towards gaining an understanding of the divergences between the findings of the PCA vis-à-vis the Supreme Court, it is imperative that a distinction be drawn between ‘sovereignty of India’ and ‘sovereign rights’ of India under UNCLOS as also the Maritime Zones Act.
Briefly stated, as per the UNCLOS, the seas of the world are divided into Territorial Waters, Contiguous Zone, Exclusive Economic Zones and the High Seas. Further, within each zone is attached a certain cross-section of rights and obligations concerning the coastal state and vessels bearing its flag vis-à-vis other states and other states’ vessels.
As per UNCLOS, roughly stated, the extent of the Contiguous Zone is earmarked at 24 nautical miles from the coastal ‘baselines’, of which the initial 12 nautical miles forms part of the Territorial Sea of a coastal state. Thus, for any such coastal state, its ‘criminal jurisdiction on board a foreign ship’ extends to only the Territorial Sea and not the extended Contiguous Zone (Article 27 UNCLOS). In fact, concerning the Contiguous Zone, the UNCLOS explicitly lays down (Article 33 UNCLOS) that a coastal state may only exercise necessary control and punish infringement of its customs, fiscal, immigration or sanitary laws and regulations as may have occurred within its territory or within the above-outlined Territorial Sea; making it manifest that India only exercises ‘sovereign rights’ over zones beyond the Territorial Sea and that ‘sovereignty of India’ only extends till its territorial waters.
However, this is precisely wherein the Apex Court, erroneously and artificially attempted to enlarge the ‘sovereignty of India’ in scant regard for the separate regime concerning Contiguous Zones and the Exclusive Economic Zone under the UNCLOS.
Chronologically speaking, India enacted the Maritime Zones Act in 1976 and it was only thereafter that UNCLOS was signed in 1982 and further ratified in 1995. However, since the Act of 1976 was based on the prevailing draft UNCLOS, the two were in harmony, as was also readily accepted by the Supreme Court. Furthermore, as a pure question of fact, the Apex Court wholly accepted the fact that the concerned incident occurred at a distance of about 20.5 nautical miles from the Indian coast and was thus in India’s Contiguous Zone.
However, though the Apex Court rightly observed that it is solely India’s ‘sovereign rights’ that extend beyond the Territorial Sea, it erroneously contradicted itself in concluding that "the incident took place within the contiguous zone over which, both under the provisions of the Maritime Zones Act, 1976 and UNCLOS, 1982, India is entitled to exercise rights of sovereignty" and that "India is entitled both under its domestic law and the public international law to exercise rights of sovereignty up to 24 nautical miles".
It is only now with the PCA’s Award dated July 2 that the Supreme Court’s folly has been debunked. The Extracts for Advance Publication make it amply clear that the PCA has decided in favour of the Italian Republic’s authority to conduct criminal investigation unto the marines vis-à-vis the incident in the following terms:
“DECIDES, by three votes to two, in respect of Italy’s Submission (3)(a) and (c), taking note of the commitment expressed by Italy during the proceedings to resume its criminal investigation into the events of 15 February 2012, that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required.”
Therefore, though the complete award is awaited and one must not speculate as to the reasoning adopted thereto, it can be safely assumed that the same rests upon the edifice of Article 2(3) of the UNCLOS that subjects a coastal state’s sovereignty over its territorial sea to "this Convention and to other rules of international law".
Another aspect of concern that the Supreme Court failed to take into account pertains to the functional immunity rationae materiae of the Italian marines emanating from, insofar as their actions were concerned, customary international law. Functional immunity claimed on basis of rationae materiae pertains to solely official acts of the State carried out by the authorised ‘agents of the state’. Concerning the present matter, this goes only insofar as ‘shielding’ the said marines from criminal jurisdiction of India. They would still be liable to be prosecuted vide Republic of Italy’s criminal laws.
Though the Supreme Court chose not to discuss the same, the final adjudication in effect rejected the said averment of granting functional immunity to the Italian marines. Nevertheless, the PCA has gone ahead and accepted the self-same arguments put forth by the Italian Republic with the operative part concluding that,
"DECIDES, by three votes to two, in respect of Italy’s Submission (2)(f), that the Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines.”
In conclusion it must be put forth that although the PCA’s Award precludes Indian courts from exercising criminal jurisdiction over the Italian marines, it does grant partial relief in the form of compensation for violation of India’s ‘freedom of the high seas’ as well as ‘right of navigation’.
Yet, the said award must not be seen in the binary of a win or a loss. Rather, in the tumultuous background of the obliteration of UNCLOS principles in the waters to the east of India by a certain communist regime, this award is surely a reinvigoration and a reinforcement of the rule of law even between two proud sovereign nations.
The author is a practising advocate at the Supreme Court of India.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.