Maritime Boundaries And Jurisdiction

The Italian Republic V. The Republic Of India, The "Enrica Lexie" Incident:

Permanent Court of Arbitration, 21 May 2020

Ratio Of The Case
India and Italy share concurrent jurisdiction over the incident and India had a sufficient legal ground to initiate criminal proceedings against the Italian marines.

Background
The Kerala High Court accepted the suit filed by the Italian Consul General in Mumbai on February 23, 2012. The matter was then brought before the Supreme Court of India, which determined that the State of Kerala lacked jurisdiction beyond the 12-nautical-mile boundary and ordered the establishment of a special federal court to try the marines. After that, Italy presented the disagreement to ITLOS, but it did not render a verdict. The case was ultimately resolved by the Permanent Court of Arbitration (PCA).

Relevant Facts
On 15 February 2012, while approximately 20.5 nautical miles from the Indian shore, the Indian fishing vessel St Antony came under fire from two Italian marines aboard the oil tanker "Enrica Lexie," which was approximately 100 metres away from the fishing vessel. The event resulted in the deaths of two Indian fishermen aboard the fishing vessel. The 2 Italian marines were then arrested and the case was brought before a court in Kerala, India.

Relevant Law
The Arbitral Tribunal observed that the Relevant Law applicable in the present case is Article 293 of United Nations Convention on the Law of the Sea (UNCLOS).

Issues In The Case

1. Should the Italian Marines be tried for Murder of the two fishermen under the jurisdiction of the Indian courts according to IPC?
2. Should the Italian marines be entitled to sovereign immunity?

There are 2 main Issues in this case and as Issue no. 1 is an Issue related to the jurisdiction. Hence, it has been dealt further.

Judgment
According to Articles 33 and 57 of the United Nations Convention on the Law of the Sea (UNCLOS) concerning the Contiguous Zone and Exclusive Economic Zone, Italy maintained that this incident falls outside the authority of India. In addition, as this event occurred outside of Indian territorial waters and the vessel was flying an Italian flag, the Italian court has the authority to prosecute the suspects under Exclusive Flag State Jurisdiction.

India's position against Italy was based on Section 7.7(a) of the Maritimes Zones Act, which provides that the central government can extend its restriction or modification as it sees fits for the time being in India or EEZ but must publish in the official gazette. Also, the offence was directed at India which breaches the passive personality principle and has compromised the national security. The death of the fisherman did not occur aboard Enrica Lexie ship but rather on the Indian fisherman boat.

When the case reached the ITLOS, it prescribed a different provisional measure requiring both Italy and India to suspend all court proceedings and refrain from initiating new ones that could aggravate or extend the dispute submitted to the Annex VII Tribunal or that could jeopardise or impede the implementation of any decision rendered by the Arbitral Tribunal.

Finally, the Permanent Court of Arbitration announced its final verdict on July 2, 2020, with a 3:2 majority in this case, it stated that India had not beached any of the grounds mentioned under Articles 87,92,97 and 100 as the opposition had claimed. "India is precluded from exercising its jurisdiction over the Marines" and must cease doing so as a form of sufficient remedy.

It further stated that the Italian republic has violated Articles 87 and 90 of the UNCLOS. The tribunal ruled that India had the right to sue for damages for the captain's and crew's physical, emotional, and moral anguish. As a result, the Italian republic compensated the victim's family with 1 crore rupees.

Analysis
Analyzing and interpreting the Relevant Law pertaining to Enrica Lexie case reveals that there are still unresolved Issues in the case, which suggests that there is a significant conflict of jurisdiction with this Issue in international law. The jurisdictional demarcation or delineation must be more exact and accurate.

When it comes to the law of the sea, it is not limited to a single legislation or law, but is also interconnected with other legal instruments and criminal statutes but the prima facie case focuses primarily on the UNCLOS. The application of criminal jurisdiction cannot be extended beyond the territorial boundary of the sea, nor can it be applied to a foreign vessel, unless there is justification for doing so. There have been numerous flaws in this law, the most notable of which is that the EEZ zone jurisdiction has yet to be clarified.

Territorial And Maritime Dispute

(Nicaragua V. Colombia)

Icj Gl No 124, Icgj 436 (Icj 2012)
Ratio Of The Case
Nicaragua's petition for delimitation of its continental shelf boundary with Colombia, citing a lack of proof specifying the continental shelf's outer limits.

Facts
Nicaragua began legal proceedings against Colombia in 2001, requesting that the International Court of Justice (hereinafter 'ICJ') determine the sovereignty over the islands of Providencia, San Andrés, and Santa Catalina, as well as all appurtenant islands and keys, and the Roncador, Serrana, Serranilla, and Quitasueo keys, based on the Bogota Pact. It also asked the Court to define the path of a single maritime boundary dividing Colombia's exclusive economic zones from Nicaragua's continental shelf.

Procedural History
The Court confirmed its jurisdiction to resolve the dispute in a ruling dated December 13, 2007. Costa Rica and Honduras applied to the International Court of Justice for permission to intervene in 2010 but were denied in a judgment Issued on May 4, 2011. Shortly after, public hearings were Held, and the claims brought in 2001 were finally adjudicated in a judgment dated November 19, 2012 (hence 'Nicaragua/Colombia'). It unanimously recognized Colombia's sovereignty over all seven islands, drew a single maritime boundary in Nicaragua's favor, and rejected Nicaragua's claim to the wide continental shelf.

Issue:

1. Whether Nicaragua can claim to the delimitation of its extended continental shelf ?

Legal Background:

1. The change in Nicaragua's claim and the principle of single continental shelf
   The International Court of Justice (ICJ) has decided that Nicaragua's new claim fit within the scope of the dispute in question. The decision is compatible with the enlarged continental shelf doctrine, although it is devoid of reasons. It is disappointing that the Court failed to emphasize such a crucial principle.
    
2. The tension between sovereign rights and the definition/delineation of the extended continental shelf
   The International Tribunal for the Law of the Sea (ITLOS) heard the case of Nicaragua v Honduras at the United Nations Court of Justice (ICJ) in The Hague. Judge ad hoc Mensah rightly criticised the ICJ's brief interpretation of Article 76 of UNCLOS.

Relevant Law
In their written proceedings, Colombia and Nicaragua both said that "Article 76 respects "well-established norms of customary international law." Colombia stated in its first brief response that the application of Article 76, paragraphs 4 to 9, is carried out only in accordance with treaty commitments. As a result, Colombia incorporated the delineation criteria and procedure (coastal states and CLCS) into the treaty commitments.

Nicaragua invoked the notion of "automatic appurtenance of the continental shelf" derived from the famous North Sea Continental Shelf cases to show that Article 76, paragraphs 4 to 7, have the standing of customary international law. As a result, it used the demarcation of the continental shelf's spatial extent to tie this concept to the continental shelf's delineation rather than the rights of coastal nations. This approach appears to conflate the historical and legal significance of Articles 76 and 77.

Argument
Nicaragua then advanced an intriguing argument, arguing that treaties that are nearly unanimously recognized could, in fact, set the groundwork for the development of customary international law.

The International Court of Justice (ICJ) has already acknowledged that representative participation, including states with special interests, may be sufficient to establish customary international law.

The UNCLOS's near-universal acceptance could be a sign of the emergence of customary international law. Nonetheless, in the event of a conflict between a party and a non-party state, Nicaragua should have thoroughly investigated non-party state practice and opposed them with state party practice in order to provide for the creation of customary law.

Furthermore, given the technicality of Article 76, paragraphs 4-6, and the large disparity between CLCS and state implementation and interpretation of these paragraphs, such research should go beyond the simple assertion of UNCLOS transposition into state domestic legislation and focus on state implementation practice.

Judgment
The ICJ dismissed Nicaragua's petition for delimitation of its continental shelf boundary with Colombia, citing a lack of proof specifying the continental shelf's outer limits. In view of the ongoing Issue before the ICJ concerning the delimitation of the extended continental shelf between the same two parties.

1. Principles of interaction
   According to a core principle of Article 76, the actions of the CLCS shall not prejudice matters relating to the delimitation of boundaries between states with opposite or adjacent coasts. When a land or maritime dispute exists, the prior consent of 'all states that are parties to such dispute' is required in order to proceed with the delineation exercise. This broad wording allows non-party states to participate in the delineation procedure. It, therefore, renders a variety of dispute scenarios possible: between state parties to UNCLOS, and between state parties and non-party states to UNCLOS.
   
   Colombia reacted separately by making an unequivocal reservation to Nicaragua's "entire text" and emphasizing that any action or inactivity by the CLCS would not affect Colombia's sovereign rights on its continental shelf. As a result, the demarcation procedure is currently stalled, and the CLCS is unlikely to evaluate Nicaragua's application in such a difficult situation.
    
2. The delineation procedure and the public order of oceans
   The International Court of Justice (ICJ) has ruled that Nicaragua should comply with the CLCS delineation method because Colombia is a non-party state. The Court's conclusion that "the fact that Colombia is not a party" does not relieve Nicaragua of its duties under Article 76 of UNCLOS.

Analysis
By analyzing and interpreting the Relevant Law related to the case of Nicaragua vs Colombia case It seems that the decision of the court is relevant as per the need.

Guyana Vs Suriname

Icgj 370 (Pca 2007) Case Of Permanent Court Of Arbitration

Ratio Of The Case
That both the Parties were deemed to be in violation of UNCLOS Articles 74(3) and 83(3)

Facts
This case dealt with the delimitation of Guyana's maritime border with Suriname, as well as Suriname's alleged violations of international law in contested marine territory. The disagreement began over the operations of holders of Guyana-Issued oil concessions in the marine area claimed by both countries. In June 2000, the Surinamese navy ordered an oil rig and drill ship to leave the area and escorted them out, and a similar event occurred in September 2000.

Relevant Law
Guyana began arbitral proceedings on February 24, 2004, in accordance with Articles 286 and 287 of the United Nations Convention on the Law of the Sea ("UNCLOS"), as well as Annex VII.

Issues:
The three Issues in dispute were:

1. The delimitation of the Parties' maritime boundary;
2. Guyana's claim for damages resulting from Suriname's activities with respect to oil concession holders in the disputed area; and
3. Either Party's alleged breach of its obligations under UNCLOS Articles 74(3) and 83(3) to make every effort "to enter into provisional arrangements of a practical nature" pending delimitation and "not to jeopardy

Held
The Tribunal used the approach given by UNCLOS Article 15 in determining the maritime boundary in the territorial sea, which gives priority to the median line as the delimitation line between neighbouring states' territorial seas, subject to "exceptional circumstances." The Tribunal determined that unusual navigational circumstances permitted deviating from the median line.

It was discovered that the Parties' colonial forefathers had agreed on a N10°E line in the territorial sea, beginning at the mouth of the Corentyne River, to provide the Netherlands with adequate navigational access, the Corentyne River being on the Surinamese side of the land border. The Parties had each increased their territorial sea from 3nm to 12nm after attaining independence, without addressing the territorial sea boundary in the newly created limits. Another unusual circumstance that warranted departure from the median line, according to the Tribunal, was the requirement to prevent Guyana's territorial sea from cutting across the access to the Corentyne River at 3nm.

The Tribunal found clear guidance in the jurisprudence of the International Court of Justice ("ICJ") and arbitral tribunals that this process should begin by positing a provisional equidistance line, which can be adjusted in light of relevant circumstances in order to achieve an equitable solution. The Tribunal found no relevant circumstances justifying revision to the provisional equidistant line, contrary to both Parties' representations.

Analysis
By analyzing it can be stated that the decision of the tribunal that is the Surinamese naval operations constituted a threat of use of force in violation of international law in the disputed territory, but refused Guyana's request for monetary compensation is much satisfactory.

Both Parties were deemed to be in violation of UNCLOS Articles 74(3) and 83(3), which require them to make practicable temporary arrangements until delimitation.

Maritime Delimitation And Territorial Questions

(Qatar V. Bahrain) 8 July 1991

Ratio Of The Case
Qatar filed a petition in the International Court of Justice against Bahrain to resolve a dispute regarding sovereignty over specific islands, sovereign rights over certain shoals, and the delimitation of a maritime boundary. Bahrain, on the other hand, contested the Court's jurisdiction.
Relevant Law

The signatories to meeting minutes and letters exchanged might form an international agreement that creates rights and obligations.

Facts
For the past 20 years, Qatar and Bahrain have been trying to resolve a dispute over sovereignty over specific islands and shoals, as well as the delimitation of a maritime boundary. During this time, both parties' heads of state exchanged letters, which were acknowledged. Representatives from Qatar, Bahrain, and Saudi Arabia organised a Tripartite Committee "with the purpose of approaching the International Court of Justice..."

Despite meeting multiple times, the group was unable to reach an agreement on the particular terms for submitting the Issue to the Court. The discussions eventually resulted in "Minutes," which reaffirmed the process and stated that the parties "may" bring the disagreement to the International Court of Justice after giving the Saudi King six months to resolve it. When Qatar filed a claim before the International Court of Justice, Bahrain contested the Court's jurisdiction.

Issue:
The signatories to meeting minutes and letters exchanged might form an international agreement that creates rights and obligations. Though Bahrain contended that the Minutes were merely a record of negotiations and could not be used to establish the I.C.J.'s jurisdiction, both parties agreed that the letters constituted a binding international agreement. Under the Vienna Convention on the Law of Treaties, international agreements do not assume a particular form, and the Court has already enforced this rule.

In this case, the Minutes not only contain the record of the parties' meetings, but also the reaffirmation of previously agreed-to obligations, as well as an agreement to allow the King of Saudi Arabia to try to resolve the dispute over a six-month period, with the possibility of the I.C.J. getting involved. The Minutes set forth agreements to which both parties agreed, establishing international rights and obligations. As a result, the existence of international agreements is based on this.

The argument that no agreement exists because Bahrain's Foreign Minister never meant to enter one fails on the grounds that he signed documents creating rights and duties for his country. Furthermore, the fact that Qatar (P) took so long to apply to the UN Secretariat does not mean that Qatar (P) never believed the Minutes to be an international agreement, as Bahrain (D) claimed. However, the validity of the agreement is unaffected by registration or non-registration with the Secretariat.

Held
Yes. The signatories to meeting minutes and letters exchanged might form an international agreement that creates rights and obligations. Though Bahrain (D) contended that the Minutes were merely a record of negotiations and could not be used to establish the I.C.J.'s jurisdiction, both parties agreed that the letters constituted a binding international agreement.

Analysis
There is no doubt that language plays a significant role in influencing a court's decision on whether or not an agreement has been reached, and in this case, the language was the main focus of the I.C.J., which was persuaded by the contents of the Minutes to reject the Bahrain foreign minister's claim that he did not intend to enter into an agreement. When compared to normal U.S. contract law, a claim by one of the parties that no contract existed because there was no meeting of the minds might be the basis on which a U.S. court would analyse whether a contract did exist with greater care and thought than the I.C.J. did with the foreign minister of Bahrain's claim.

Piracy And Armed Activities

The Case Of The S.S. Lotus: France V/S Turkey

Pcij Series No. 10
Year Of Decision: 1927

Ratio Of The Case
State would have territorial jurisdiction, even if the crime was committed outside its territory. This is called as subjective territorial jurisdiction.

Relevant Facts
On the high seas, a collision happened between the French yacht Lotus and the Turkish vessel Boz-Kourt. The Turkish vessel Boz-Kourt sank, killing eight Turkish people on board. On board the Lotus, the Boz-ten Kourt's survivors (including its captain) were transported to Turkey. The captain of the Turkish ship and the officer on duty of the Lotus (Demons) were both charged with manslaughter in Turkey.

Demons, a French national, received an 80-day prison sentence and a fine. The French government complained, requesting that Demons be released or that his case be transferred to French courts. The Permanent Court of International Justice will hear this argument about jurisdiction between Turkey and France (PCIJ).

Issue Raised
When Turkish courts exerted jurisdiction over a crime committed by a French national outside Turkey, did Turkey breach international law? Should Turkey compensate France if this is the case?

Court Findings
Establishing Jurisdiction:
Does Turkey need to back up its assertion of jurisdiction with a norm of international law, or is the absence of a restriction sufficient to prevent the exercise of jurisdiction?

The Lotus Case's fundamental principle is that a state cannot exercise its jurisdiction outside its borders unless it is permitted by an international treaty or customary law. This is what we named the Lotus Case's first principle. According to the Court:

"A State may not exercise its power in any form in the territory of another State, except by virtue of a permissive rule derived from international custom or from a convention". "In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory." (para 45)

The Lotus Case's second principle is that a State may exercise its jurisdiction in any case within its territory, even if no specific norm of international law permits it to do so. States have broad discretion in certain situations, which is only restricted by international law's prohibitive norms. According to the Court:

International law does not prohibit a State from exercising jurisdiction in its own territory in respect of acts which have taken place abroad. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and jurisdiction to persons, property and acts outside their territory. But this is not the case under international law as it stands at present.

This applied to civil and criminal cases, as well as to disputes between States and local authorities (para 48).

The Court Held that international law does not restrict the independence of independent States and their ability to set their own rules of law. This was a controversial decision, with some arguing that the Court placed too much emphasis on the sovereignty and consent of States (i.e. took a strong positivist view) rather than emphasising the individual sovereignty of States.

Territorial jurisdiction
The Court Held that France, as flag State of a vessel, did not enjoy exclusive territorial jurisdiction in respect of a collision with a vessel carrying the flag of another State (paras 71 - 84). France alleged that the flag State has exclusive jurisdiction over offences committed on board the ship in high seas. The Court ruled that there was concurrent jurisdiction for both Turkey and France in this case.

The Court Held that a ship in the high seas is assimilated to the territory of the flag State. This State may exercise its jurisdiction over the ship, in the same way as it exercises jurisdiction over its land, to the exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish territory and concluded that Turkey had jurisdiction over this case.

"There is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent." "If a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no exception to international law".

In the Lotus Case, the Court said that a State would have territorial jurisdiction, even if the crime was committed outside its territory, so long as there was a constitutive element of the crime. Today, we call this subjective territorial jurisdiction. In order for it to be established, one must prove that the element of crime and the actual crime are entirely inseparable.

The offence for which Lieutenant Demons appears to have been prosecuted was an act - of negligence or imprudence - having its origin on board the Lotus, whilst its effects made themselves felt on the Boz-Kourt. These two elements are, legally, entirely inseparable, so that their separation renders the offence non-existent. It is therefore a case of concurrent jurisdiction.

France claimed that jurisdictional Issues in crash cases are rarely addressed in criminal cases because states often prosecute solely before the flag state. The Court disagreed, holding that this: -would just demonstrate that states frequently abstained from initiating criminal procedures in practise, rather than that they saw themselves as obligated to do so.

Analysis
To put it another way, opio juris is represented not only in state acts (the Nicaragua case), but also in state omissions when those omissions are motivated by a perception that the state is bound by law to refrain from acting in a certain way.

Ocean Governance
The North Atlantic Coast Fisheries Case
(Great Britain / United States Of America)
Case Of Permanent Court Of Arbitration
Case No. 1909-01

Name Of The Arbitrators:
Mr. H. Lammasch
Mr. A.F. de Savornin Lohman
Mr. G. Gray
Mr. Louis M. Drago
Mr. Charles Fitzpatrick

Ratio Of The Case
The Tribunal dismissed the claim that baselines longer than ten miles were not allowed.

Relevant Facts
Great Britain and the United States of America agreed on October 20, 1818, that U.S. citizens would have the same rights as British nationals to engage in all sorts of fishing on a defined area of the British coastline of Newfoundland and Labrador for the rest of their lives. Residents of the United States were always allowed to dry and cure fish in any bays, harbours, and creeks along the same coastline.

In exchange, the United States of America gave up all other fishing rights Held by residents within three nautical miles of the coasts of the British dominions in America, except for the right to enter bays and harbours for the sole purpose of shelter, repairs, wood purchases, and obtaining provisions.

Issue
The right to employ non-US residents in fishing crews, the imposition of customs and other duties, the definition of the term 'bay,' and the method by which the three-mile limit of the territorial sea was to be measured from the relevant coastline were among the Issues that the two governments disagreed on.

Relevant Law
1907 Convention for the Pacific Settlement of International Disputes

Bilateral treaty, Special Agreement between the United States of America and Great Britain signed at Washington on the 27th of January 27, 1909

Held
The Tribunal addressed when a coastal indentation is to be deemed a bay, as well as the criteria under which bays may be closed off with straight baselines for the purpose of measuring the territorial sea, in its ruling. The Tribunal dismissed the claim that baselines longer than ten miles were not allowed.

For these reasons this Tribunal is of opinion that the inhabitants of the United States are so entitled in so far as concerns this Treaty, there being nothing in its provisions to disentitle them provided the Treaty liberty of fishing and the commercial privileges are not exercised concurrently and it is so decided and awarded.

Analysis
Special Agreement for the submission of questions relating to fisheries on the North Atlantic Coast under the general treaty of arbitration concluded between the United States and Great Britain on the 4th day of April, 1908 is satisfactory decision.