The by now infamous story of the two navy riflemen prisoners in India can be very stimulating to address some issues of international law for the application of national laws. Before even examining the concept of territoriality of the waters, a key element of the story as well, it is necessary to investigate what the ius gentium means by the term ship.
In order to be able to define the legal status of a ship in international law, it is necessary to depart from what would otherwise be the case for the internal legal system. In Italian private law, the vessel is a registered movable asset, an object of real rights whose use opens to mandatory relationships, but in the public it is necessary to take into account the organizational factor that moves around the vessel. For domestic law, we can therefore generally define the ship as a complex case, the elements of which - material and organizational - contribute in the case of the vessel as an instrument suitable and admitted to navigation.
In international law the meaning is not univocal; in the treatises we can fundamentally rediscover three meanings of ship: the good as such, the whole of the interests towards this good, or as a synonym of State in observance of the rules attributed to the ship going referring to the State to which the vessel is connected through the flag. In general, however, the term ship in international law is a concise expression that represents the complex of rights and duties of the state to which the vehicle is flying the flag and allows States to be able to exercise a power of control and jurisdiction over its activities.
About the notion of ship in international public law have advanced numerous theories over time. The most dating1 - appearing in Vattel when he talks about the ship as a "portion de territoire" and in Bentham which compares it to a traveling province - he associates it with a portion of the territory of the State of the beaten flag, entrusting the related rights and duties that could be conditioned and limited from the territorial sovereignty of another State played in the territorial sea or in inland waters, a fiction therefore. This theory is reflected in the well-known English sentence Lloyd vs Guibert of 1865 in which the ship was considered as afioat-ing island, a sailing island, on which the flag State exercises its sovereignty absolutely as well as in its own land. Another widespread theory saw the ship as a good subject to a real right. Ubertazzi2 it starts from the assumption that there are real international relationships having as their object different things from the territory such as ships - both private and state - and affirms how the thought of Giuliani and of Quadri3 they are not sufficient to define the nature of state law on their ships by taking into consideration only the crew and its organization and not the good itself. It is necessary to take into consideration the relationship between the State of the flag and the ship as res, representing a real relationship both in the sense of the right of the State of the flag and in the duty of abstention of the other States.
A further theory regarding the juridical regime of ships, of Anglo-Saxon origin, sees in the potestas of protection offered by international law to the exercise of the proper rights of the flag State, the giving to that State of the possibility of protecting its own citizens and their interests being its members the shipowner or owner of the ship. This thesis is based on the assumption - still supported by many maritime states - that the nationality of the vessel is represented by the extension of that of its owner, but this thesis, based on a doctrine if not ancient, at least dating back (XVI- XVII century), does not address the problem that nationality and property are two distinct concepts and that diplomatic protection activities will be carried out by the State directly on its citizens and their interests true regardless of the ownership of the ship.
The aforementioned Giuliano emphasizes the organizational factor of the ship defining it not as res but as an organized human collectivity at the top of which is the commander by means of which the State acts towards the community inhabiting the vessel. But if the commander assumes this role of "arm of the state", the exclusion of the activity of third states towards the ship is nothing other than the application of the principle of non-interference in the internal organization of a state by third bodies . The well-known position of Quadri differs greatly from this4 according to which the ship would be that itinerant community whose relationship with the flag State is a relationship of subjection that derives on that community a power of government. The ship in the material sense is subjected to the extensive protection of the flag State in consideration of its position as an instrument in relation to the community.
This protection by the flag State can only occur in international waters being reasonably limited in the territorial waters of the third State. The ship can therefore be defined as a complex system of international rights and duties based on the competition of public and private rights that the flag State offers to its citizens who form the crew, with its commander, and the material means.
By reason of these elements it is quite clear that in the present case the two navy riflemen should be tried by an Italian court.
At this point what is appropriate for a correct analysis is to investigate what are the territorial waters, the international ones and the contiguous belt. The term territorial water is considered the portion of sea adjacent to the coast of the State on which it exercises its territorial sovereignty in the same way that it exercises on land. The discipline, first based on mere international habits for which the portion of the territorial sea was established in 3 nautical miles from the coast (measurement determined in this way as corresponding to the average range of cannons), was then subject to regulation by some conventions such as Geneva on the territorial sea and the contiguous zone of 1958 and that of Montego Bay of 1982, now in force. Today every State is free to determine the extent of its territorial waters up to a maximum of 12 marine miles measured from the baseline5 ie from the low tide line along the coast as indicated by the large-scale nautical charts officially recognized by the coastal state6, in the event that the coast is jagged or there are islands in the immediate vicinity, the Convention carries out, in art. 7, specific criteria for plotting the baseline. In this area of territorial sea the State exercises its sovereignty except for the existence of two limits: the inoffensive passage of merchant ships or foreign war can not be prevented7 provided that this passage does not prejudice peace, good order and the security of the coastal State8. The second limitation is the non potestas about the use of one's own penal legislation in relation to facts committed on board of foreign ships except for some hypotheses9 that is, if the consequences of the crime extend to the coastal State, or if the crime is of a nature such as to be detrimental to the peace of the coastal State or to the good order of the territorial sea, or if the intervention of local authorities is requested by the commander of the ship or by a diplomatic authority of the flag State, or even if the intervention is deemed necessary in order to suppress illicit drug trafficking.
The figure immediately following that of the territorial sea is represented by the contiguous zone. This is a maritime space that extends for 12 nautical miles beyond the boundary of territorial waters, thus up to 24 miles from the coast line. Thus called by the art. 33 of the Montego Bay Convention, in this band the coastal State does not have the exercise of absolute sovereignty except for a power of control over the ships in transit for the prevention of the violation of national laws related to the customs, fiscal, health and 'immigration.
This area is optional and must be declared to exist by the coastal State in case you want to exercise the power of control. In the Mediterranean Sea have only neighboring areas established in France, Egypt, Morocco and Malta.
Also to be defined is the so-called exclusive economic zone - also known by the acronym of EEZ - for which we can attribute the meaning of a portion of the sea adjacent to the territorial waters where the coastal State has sovereign rights in mere matter of natural resources, affirming a jurisdiction concerning the installation and use of infrastructures related to scientific research as well as for the protection and conservation of the marine habitat. According to UNCLOS - United Nations Convention on the Law of the Sea - the EEZ can extend up to 200 miles from the baseline from which the extent of territorial waters is measured. If the area of territorial waters is 12 miles the EEZ can have a maximum extension of 188 miles. Also for the economic zone, in order to assert its effectiveness, it must be formally declared. This has a mere functional value by assigning to the State a simple right to exploit the hydro-geological resource.
Last but not least is the concept of international waters, also known as the high seas, a limit beyond the 200 sea miles from the coast and an area not subject to the sovereignty of any state. The discipline of this area is also contained within the Montego Bay Convention of 1982 according to which international waters constitute a res communis omnium that is a good belonging to the community, to the entire international community even if it were a state that in none of its extreme boundaries with the sea, giving the same broad power to do, in those waters, provided it respects the rules of general international law. Each State exercises exclusive jurisdiction over its ships, however, being able to extend its jurisdiction over ships of other States in three mandatory cases: boarding foreign ships to ascertain their nationality or to verify that they are not actors in pirate, slave trade or other acts unlawful acts enshrined in art. 110 of the Montego Bay Convention10; capturing ships, merchant or war, engaged in acts of piracy or slavery by exercising its own criminal jurisdiction over the crew; and finally to pursue and capture ships suspected of having violated their laws in its internal waters, in its territorial sea or in its contiguous zone as established by art. 111 of the Montego Bay Convention. In all these cases - and in any case only in these cases - the use of force, although always reasonable and measured, can be applied but must be a residual hypothesis of last resort.
Having ascertained that the facts took place about 20,5 miles from the Indian coast, therefore beyond the limits that define the waters of the territorial sea, there is sufficient reason to justify why the exercise of Indian criminal jurisdiction is to be upheld. in those waters of a contiguous zone, but in which India has no absolute sovereignty, but rather a residual power of control and only targeted possible violations of national laws concerning customs, taxation, health and immigration. Not being in any of these cases, our species implies that the waters of a contiguous band are, in this case, easily assimilated to the international ones who give, as a granitic practice, the power to the criminal judge of the flag state of the ship.
With regard to crimes committed in international waters, three cases - always cited by the doctrine - which support, even if not recent and partially overcome by the UNCLOS Convention of 1982, support their probative functionality supporting our thesis. The first of these is the case of The Queen vs Keyn11 from 1876. The Franconia was a steamship that had collided with the Strathclyde, an English ship, three miles from the coast. The crash resulted in the death of some passengers of the British vehicle. The process immediately began with a question of territorial jurisdiction, the fact having developed at an adequate distance from the ground of the Crown. The point was therefore to understand whether the German accused could or could not be subjected to the territorial sovereignty of Great Britain. At the time, there was still no rule concerning the distinction between territorial waters or not, but the Court followed this second path by arguing that the fact had occurred in the open sea. This decision paved the way for copious protests within the United Kingdom which subsided only with the enactment, in 1878, of the Territorial Waters Jurisdiction Act which introduced the legal figure of the territorial sea, equating it to the mainland. Two minority judges - lord Lindlay and lord Grove - argued that, despite being open waters, the fact would have occurred on the Strathclyde, a vessel similar to British territory, so that English criminal jurisdiction could have been exercised. Lord Cockburn, in charge of the majority of the House, defined instead how the question was not whether the death of the subjects had occurred on board a British ship - a fact not disputed - but whether the German boat had been or not, at the time of the impact, within British soil, and then taking into account how the captain - the defendant - was on board the German ship, the English Court could not have territorial jurisdiction. The second case I want to refer to is Britain vs Netherlands12, dispute decided by referee Fedor Fedorovic de Martens appointed by Tsar Nicholas II at the request of the parties. In January 1888 the Australian whaling Costa Rica Packet, crossed the 15 and 20 miles from the coast, an abandoned Indo-Dutch pirogue. The Australian commander, once he had the ship inspected, ordered to bring on board the rich load of spirits that the boat was carrying and in the evening, under the effects of a profuse drunkenness, they let the pirogue drift. Once on land, they reported everything to the Indian port authorities and a month later they left again. After more than two years, having once again arrived in a port in the Dutch Indies, the Costa Rican captain Packet was arrested as an accused of theft. After an unnecessary reconciliation negotiation, the United Kingdom and the Netherlands, parties to this dispute, opted for the devolution to the Czar of the Russians of the choice of an arbitrator to settle the de quo. De Martens was thus charged with highlighting two key elements of this case: the first is that even merchant ships, on the high seas, are comparable to a portion of the territory of the flag State, which can therefore only be judged by the respective national authorities, the second that the the appropriation of the cargo by the whaling commander, having occurred in extraterritorial waters, can only be judged by the English judge and not by the Dutch judge. On this level, however, the famous jurist-arbitrator does not seem to have noticed that he used a non-univocal criterion in defining the two questions: if it is true that the Costa Rica Packet is to be assimilated to a "detached section" of the territory of His British Majesty - as flying the flag of a colony - this principle should be equivalent to the pirogue, flying the Dutch flag and therefore the locus commissi delicti concerning the theft would have been precisely the Indian-Dutch territory being therefore to be entrusted to the judges of the latter colony the competence of the question.
The third case, well known, is that of the Lotus13, a steamboat flying the French flag that collided with a similar Turkish one, the Boz-Turk, sinking it and causing the death of eight individuals. After landing at the port of Istanbul, the French maneuvering officer was arrested and convicted by the Criminal Court for manslaughter. Soon a dispute arose about the potestas judicandi that Turkey had in exercising criminal jurisdiction over the facts committed by another citizen in the open sea, the point was to define whether Turkey had acted in violation of the principles of international law to which she was subjected to the 1923 Lausanne Convention. The Permanent Court of International Justice was invested with this doubt, which, in accordance with a dualistic view14, he concluded by stating that, by adopting any kind of monist and dualist model, the result did not change: Turkey could exercise in the circumstances of the case a power of criminal jurisdiction vis-à-vis the French officer. Here the Court does not proceed from the general assumption that no State can exercise its punitive power in the territory of another State - which in the Court's opinion does not run in utility - but defines as the non-existence of any obligation arising from international law in due to the non-exercise of its jurisdiction it would already be in the fact that the crime took place aboard the Boz-Turk. A thesis in line with those minority positions of the aforementioned Franconia case.
The French complaints were such that today, in art. UNCLOS 97, as in the case of collisions or any other incident involving a ship and occurring on the high seas, there is a criminal and disciplinary responsibility of the master of the ship or any other person on board that caused the event, and no proceeding may be initiated before the administrative or jurisdictional authorities of the flag State or the State of which the person is a national have expressed themselves. This rule derives from a proposal made by France, in fact, in the 1956 to the Commission de Droit International and implemented earlier in the Geneva Convention (1958) and then in the cited article of the United Nations Convention on the Law of the Sea15. This rule, however, can only refer to navigation accidents: in other cases the rule remains that the ship is subject to the exclusive potestas of the flag State which is expressed only by the impossibility for the other States to perform acts of government on board of that ship.
At this point it is necessary to report a concise examination of what the Italian criminal law provides in the event that the "foreign" factor significantly affects a crime. The art. 8 of the Code of Criminal Procedure opens the third section dedicated to jurisdiction by territory. It is determined, in general, by the place where the crime is committed, with the exception of the case in which the death of a subject results. In this case the jurisdiction would be of the judge of the place where the action or omission takes place. In this case, two soldiers of the Italian Navy, at the moment of the fact in service and in the act of fulfilling their duties regarding an operation to protect against known pirate activities in the Indian seas, intervened by opening the warning fire against a suspicious vessel. Not dwelling here on the merits of the question but only wanting to affirm an ab initio defect of admissibility, it is necessary to face the various interpretative possibilities that arise from the case in question:
if we consider the crime committed in international waters, the two Marò are Italian citizens who were on board an Italian ship and therefore subject to the law of the Italian state. In this case, art. 6 of the Criminal Code considering the crime committed in the territory of the State - and since the ship, as mentioned above, is part of the State - since the action that constitutes it took place in Italian territory. As such, the admissibility is to be referred to the Italian Judge pursuant to art. 9 cpp subject to prosecution by the Italian military court. if we consider the crime committed in Indian national waters, the substantive rule to which we must refer is art. 7 of the Criminal Code where the Italian public official citizen in the service of the State who commits a crime by abusing his powers or violating the duties inherent in his functions must be punished according to Italian law pursuant to art. 10 of the Code of Criminal Procedure assigning jurisdiction - according to the criteria of residence, abode, domicile, arrest or surrender - to the Italian Judge (unless the Italian Military Court can be prosecuted again).
According to Italian law, therefore, the two navy riflemen should be brought back to Italy to be judged by the judge of their country. The obstructive position of the Indian government is understandable as they have to find a scapegoat for the double homicide caused - in forms completely unknown and not proven beyond a reasonable doubt - on board the St. Antony fishing boat. The point here is that - given the evidence that the event occurred in international waters - the Indian Court has no jurisdiction, in the light of the aforementioned Italian laws, to judge the matter on the merits. Today, however, the point is to coordinate our claim at the international level with the more or less justified interests of India. Perhaps the ideal solution could be to set up a Single Court for International Waters, designating you the competence for the events that occurred on the high seas and offering you a public international legislation shared by the major associates but today it appears not very profitable in our case as it is only conceivable that a sole arbiter who would perhaps conclude - at least for the international community - the matter.
Another possibility - certainly more risky - is that the Public Prosecutor of Rome, who opened a dossier on the matter, brings the matter to the judgment of the Italian judge who, expressing himself with a sentence ready to become enforceable, allows the maturing of a possible bis in idem. The prohibition of double judgment in India is in fact a constitutional right and, although not recognized as an international ne bis in idem, it can be considered correct that the operation of this prohibition goes beyond the single national order, especially for orders that make this rule a pillar of their legal system. The disregard for India in the present case of the efficacy of the Italian judged and therefore the encore in idem, would be like saying that India does not recognize, to the Italian judge, a practical ability in resolving disputes, a sort of judgment of non-ability of the Italian Courts that on the other hand would destroy the main task of the Judge to render justice, a task that belongs to all the judges of any State they are.
As of today, the proceedings brought against the two Maròs are legitimate for Indian law. The point is whether or not the Italian state should recognize Indian law in this regard since India does not recognize the Italian law and the ability of Italian judges to judge with reference to the question of riflemen, a sort of application of the principle of reciprocity.
The legal solution does not appear to be viable today, therefore, if the diplomatic one is resoundingly bankrupt by placing Italy to be assimilated to a Don Abbondio even more loathsome than the Manzonian, the only detachable way would seem political, where it is to be considered a collaboration to international level aimed at a massive embargo on India. In fact, interrupting a developing economy is tantamount to sinking it and one has reason to believe, given the absolute rigidity of the Indian government, that this is the only viable hypothesis. Of course it remains that in order to do this it is necessary not a mere Italian act but a broader European provision and, in the event that Europe is not ready to support this request, I think we should all think about the reasons that push Italy to stay further. in a community that is not able to protect its members.
Nicolò Giordana
The author: Graduated in Law with honors and honors, is an expert in Military Criminal Law, Intelligence and Terrorism. Assistant professor of criminal procedure at the Faculty of Law of the University of Turin, is a contributor to various magazines of law and, by passion, deals with military history. Author of the book "De bello Napoleonico" he is a member of the Italian Society of Military History.
1 Today this theory is outdated, but traces of it can still be found in the works of some authors who still adhere to it, among these Giuliano does not deem it improper to define the ship as an extension of the territory of the State whose flag it flies, albeit limiting this to the activities carried out on it . See Giuliano-Scovazzi-Treves, international law, XI, Milan, 1983, pp. 290 ff.
2 See Ubertazzi, Studies on real rights in the international legal system, Milan, 1949.
3 See Quadri, international public law, Naples, 1968, pp. 739 ff.
4 See Quadri, Private ships in international law, Milan, 1939.
5 Art. 3 Conv. Montego Bay.
6 Art. 5 Conv. Montego Bay.
7 In this case the submarines must sail emerged and with the flag hoisted.
8 Art. 19 Conv. Montego Bay. To this end, the passage must be considered offensive in the event that the foreign ship threatens or uses the use of force, commits acts of espionage, violates customs, fiscal, health or immigration rules or seriously pollutes the waters and intentional.
9 Art. 27 Conv. Montego Bay.
10 In the event that the suspect is found to be unfounded, the flag State of the boarding ship must compensate for any damage or loss that may be caused.
11 So-called Franconia case decided by the House of Lords.
12 Case CD Costa Rica Packet.
13 Decided by the Permanent Court of International Justice in the 1927.
14 With the works of Hans Kelsen two types of relationship between international and domestic law were defined: a monistic and a dualistic one where the first, to which France adhered, argued that the existence of a title of competence attributed by law should be demonstrated international. The second version, followed by Turkey, saw the State free to exercise its power unless international law imposed constraints on it.
15See MH Nordquist, United Nations Convention on the Law of the Sea 1982: A Commentary, III, Dordrecht, 1995, p. 167.
