The Enrica Lexie Incident: Jurisdiction in the Contiguous Zone?

On 15 February 2012, two Italian marines on board an Italian-flagged vessel, the MV Enrica Lexie allegedly shot and killed two persons on board a fishing vessel, the St Antony. They had mistaken them for pirates. The two marines were subsequently arrested. The question before the Supreme Court of India was, primarily, whether the Union of India possessed sufficient jurisdiction to try them.

A number of jurisdictional questions arising from the facts of the Enrica Lexie incident have been extensively treated elsewhere. But there has been little engagement with the actual decision of the Supreme Court of India and issues of international law raised by that decision. In particular, the question I would like to address is whether the application of the Indian Penal Code to the contiguous zone in the manner envisaged is lawful under international law. This aspect has taken on more importance given that the prosecution will no longer proceed on the basis of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, but the ordinary criminal law.

The crucial factual assumption made by the Court was that the incident occurred approximately 20.5 nautical miles (‘nm’) from India. That is, it occurred within India’s Exclusive Economic Zone (‘EEZ’) and contiguous zone, as defined in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976 (‘Maritime Zones Act 1976’).

The crux of the decision on this point of jurisdiction was set out by Kabir CJ as the application of section 2 of the Indian Penal Code, dealing with offences committed in the territory, to the continuous zone, by way of Notification SO 671(E) of 27 August 1981. Recognising that under international law a State did not have sovereignty in the EEZ, Kabir CJ concluded that,

‘India is entitled both under its domestic law and the public international law to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of the territorial waters is measured […]. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the contiguous zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country’ (Republic of Italy v Union of India (2013) 4 SCC 721 [‘Italy v India’] [110]).

Thus, the Union of India had jurisdiction over the marines, and the Supreme Court directed that a Special Court be established to try the case according to the ‘Maritime Zones Act, 1976, the Indian Penal Code, the Code of Criminal Procedure and most importantly, the provisions of UNCLOS, 1982, where there is no conflict between the domestic law and UNCLOS, 1982’ (ibid [111]).

Chelameswar J delivered a concurring judgment. The application of the Penal Code was reasoned on the basis of what Chelameswar J explicitly termed a ‘legal fiction’ under the Maritime Zones Act 1976; the Penal Code would operate as if the contiguous zone and EEZ were part of India’s territory (ibid [127]).

The contiguous zone is defined in article 33 of the 1982 UN Convention on the Law of the Sea, but is still a doctrine whose scope and detail are difficult to ascertain. The extent of the coastal State’s powers in the zone, its relationship with other zones and the limitations on the matters for which the zone can be claimed continue to throw up difficulties. It suffers from the unfortunate combination of an unclear pre-codification status, a messy negotiation history, complex drafting and inconsistent State practice (see S Oda, ‘The Concept of the Contiguous Zone’ (1962) 11 ICLQ 131 and AV Lowe, ‘The Development of the Concept of the Contiguous Zone’ (1981) 52 BYIL 109). The question of whether, and if so, to what extent, a coastal State has prescriptive jurisdiction in the contiguous zone is an open one.

Kabir CJ concluded that under international law, India was entitled ‘to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of the territorial waters is measured’. What are these ‘rights of sovereignty’? They are referred to in distinction to ‘sovereign rights […] for certain purposes’. Those ‘sovereign rights’ are referred to as stopping short of sovereignty (Italy v India [106]). Rights of sovereignty, ‘of which the exercise of penal jurisdiction under the criminal law is an important part’ (ibid) are therefore, according to the internal vocabulary of the judgment, more extensive than ‘sovereign rights’. This reasoning points to a belief that a coastal State may subject the contiguous zone to its sovereignty, at least in respect to criminal jurisdiction.

This obscure reasoning is further complicated by the particular mechanism by which the Indian Penal Code was deemed applicable to the contiguous zone. The relevant instrument, Notification SO 671(E) of 27 August 1981, was in fact promulgated under the powers in respect to the EEZ, that is, s 7(7) of the Maritime Zones Act 1976. Section 2 of the Indian Penal Code, dealing with offences in India’s territory, was applicable because it was found that Notification intended to apply such laws to the contiguous zone and the EEZ, (Massimilano Latorre v Union of India (2012) 252 Kerala LR 794 (High Court of Kerala) [21]). Thus, the contiguous zone was to be treated as part of the territory of India. The concern here is the Court’s approval of such a mechanism as compliant with international law. One gets little reasoning from the Court on this point.

There seems to be little warrant for stating that in international law, a coastal State is empowered under article 33 of UNCLOS to exercise ‘rights of sovereignty’ in the contiguous zone in the manner envisaged. The treaty provision merely provides that ‘the coastal State may exercise the control necessary‘ (emphasis added) to prevent or punish infringements of customs, fiscals, immigration or sanitary laws and regulations in the territorial sea or territory. While there is scope for debate on what constitutes such ‘control’, the basis for concluding that the State enjoys rights of sovereignty is difficult to uncover. This was confirmed by Judge Laing in his Separate Opinion in MV Saiga (No. 2) before the International Tribunal for the Law of the Sea, stating, ‘[c]ontrol evidently is not coincident with generalized and plenary sovereign activity’.

It is also curious that there was no reference to the purposes for which jurisdiction could be exercised in the contiguous zone. The debate with respect to the contiguous zone is framed on the basis of the assumption that there would be limits on those purposes. The judgment of the Supreme Court has bypassed this debate entirely. The only recognition of a limitation on the basis of purpose is in relation to the EEZ. But such limitations are equally relevant for the contiguous zone. Such a limitation on purposes is even recognised by the domestic legislation.

Furthermore, no reference was made to perhaps the most controversial aspect of India’s contiguous zone claimed under the 1976 Act, that is, the reference under s 5(4)(a) to the ‘security of India’. This is surprising, given that it is on this basis that the application of the Indian Penal Code is most justifiable. It is unfortunate that the decision in Italy v India has effectively bypassed the relevant debates, instead relying on assertions of sovereignty that have little basis in international law. To the extent that this was because of an implicit assumption that such matters would fall under ‘security’, the fears that the inclusion of ‘security’ as a relevant matter for the contiguous zone would lead to unprincipled and extensive jurisdictional claims have been vindicated (see [1956] II Yb of ILC 295 para (4)).

What this does reveal is the problematic relationship between the contiguous zone and the EEZ. In geographical terms, the extension of coastal State competence to a zone up to 200 nm from the baseline clearly overshadows the 24 nm contiguous zone. In the present case, this fact had particular legal significance given the application of the Notification for the EEZ to the contiguous zone. In jurisdictional terms, the more restricted nature of the EEZ gives rise to the possibility of over-simplifying the specific character of the contiguous zone. Given the geographical fact already referred to, it is easy to simply wonder, why should there be functional limits on jurisdiction in the contiguous zone? After all, it is closer to the State’s territory. In structural terms, the application of high seas norms (freedom of navigation especially) in the contiguous zone is mediated through the EEZ. Thus, in the EEZ, article 58(2) of UNCLOS provides for articles 88 to 115 to apply ‘in so far as they are not incompatible with this Part’ on the EEZ. But pursuant to article 55, the EEZ begins immediately after the territorial sea. This is recognised in the Court as the basis for applying laws, but the limits of these provisions are not recognised. Thus, the statement that ‘the exclusive economic zone continues to be part of the high seas over which sovereignty cannot be exercised by any nation’ is correct, but the Court does not go far enough to recognise that this also applies to the contiguous zone.

In the grand scheme of the human drama that has unfolded, it is understandable that a technical aspect of the law of the sea has been overlooked. But such a view underestimates the importance of maintaining a clear understanding of the foundations of the legal regime of the seas. Indeed, the decision in Italy v India is just one recent example of the continuing tension (and confusion) between the claims of a coastal State and the norms of the high seas beyond the territorial sea, which will continue to guide the development of the law in the decades to come.