Title: Criminal jurisdiction in high sea: whether India had jurisdiction under international law to try Italian marines
Authors: Ameyavikrama Thanvi
Addresses: National Law University, NH-65, Nagaur Road, Mandore, Jodhpur – 342304, Rajasthan, India
Abstract: Exercise of jurisdiction in the high seas has always been a point of contention in the international laws. When Italian marines shot at Indian fishermen in the Indian Ocean, the debate sparked again as both the countries asserted jurisdiction over the marines. The customary international law under its various principles provides for the affected state to exercise jurisdiction. The Italian authorities cited provisions of the UNCLOS to establish their exclusive jurisdiction. However, the international covenant does not in any way prohibit India from exercising her jurisdiction. Another question that arises as a hindrance in exercising such jurisdiction is that the marines were under the direct orders of the Italian Government and being a part of the defence forces of the state enjoyed state immunity. It was thus, contested that India could not exercise her jurisdiction over them. However, protection of state immunity can be availed of only for so long as the state agency or instrumentality is performing its sovereign function as ordered by the government. Since Italian marines killed civilians rather than pirates they could not avail such protection. Thus, India had the jurisdiction to try the marines under her municipal laws.
Keywords: criminal jurisdiction; UNCLOS; high seas; state immunity; Italian marines; India; Italy; international law; municipal laws.
International Journal of Public Law and Policy, 2013 Vol.3 No.4, pp.409 - 415
Received: 08 May 2021
Accepted: 12 May 2021
Published online: 21 Aug 2013 *