Kochi fishermen killings: Italy in troubled waters

The recent incident where armed Italian naval personnel on board an Italian merchant ship, Enrica Lexie, attacked an Indian fishing vessel and killed two fishermen off the Kochi coast has resulted in a violation of international law.

The concept of state responsibility under International Law holds the Italian government responsible for these killings. As the act was committed within Indian territorial waters, India as a sovereign ‘coastal state’ can exercise its criminal jurisdiction and apply its criminal law.

The UN Convention on Law of Sea, to which both India and Italy are parties, provides that coastal states have complete authority over territorial waters up to 12 nautical miles (Article 2). India’s contiguous zone can extend up to 24 nautical miles from the base line and exclusive economic zone to 200 nm under the convention.

The rights and obligations of a coastal state and foreign vessels in territorial waters and contiguous zone vary slightly. However, a coastal state has the authority to visit and detain a foreign ship for violation of coastal state laws in both the zones.

In a zone contiguous to its territorial waters, the coastal state may exercise the necessary control to: a. prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial waters; b. punish infringement of the above laws and regulations committed within its territory or territorial waters (Article 33).

The Italian ship has right to innocent passage under Article 19. Further, coastal states have the obligation to allow origin ships by way of ‘innocent passage’ in their territorial waters. The passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. Such passage shall take place in conformity with UNCLOS provisions and with other rules of international law.

The passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal state if in the territorial sea it engages in any of the following activities: a. any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal state, or in any other manner in violation of the principles of international law embodied in the UN charter; b. any exercise or practice with weapons of any kind; c. any act aimed at collection of information to the prejudice of the defence or security of the coastal state; d. any act of propaganda aimed at affecting the defence or security of the coastal state; e. the launching, landing or taking on board of any aircraft; f. the launching, landing or taking on board of any military device; g. the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; h. any act of wilful and serious pollution to this Convention; i. any fishing activities; j. the carrying out of research or survey activities; k. any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal state; l. any other activity not having a direct bearing on passage.

Therefore, the Italian merchant ship’s claim that an Indian fishing vessel was involved in piracy fails under international law. Piracy has been defined to include any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship (Article 101). The mistaken claim that the Indian fishing vessel is a pirated one imposes state responsibility on Italy under international Law. To impose state responsibility there must be an international wrongful act, which can be attributed to the sovereign state. The nationality of a ship is determined by the flag it flies at the time of commission of an act. From the facts of the case it is clear that defences like force majeure, distress, necessity or self-defence are not in favour of Italy.

The criminal jurisdiction of a coastal state can be extended to acts of foreign ships in territorial waters if the crime committed has consequences for the coastal state and would disturb the peace of the country or good order of the territorial waters (Article 27). Clearly Indian courts, therefore, have the jurisdiction to try the offenders and the provisions of the Indian Penal Code are applicable.

The writer is head of the department, School of Law, Christ University, Bangalore