• PAGE ONE
• INDEX
• HOME

Criminal jurisdiction -- Flagging the guilty on high seas

T. N. Pandey

TO EVERY coastal state, international law attaches, besides a territorial sea, a contiguous zone, an exclusive economic zone and a continental shelf (Articles 2, 33, 55 and 76 of the United National Convention). These maritime areas are treated as compul sory appurtenances of the adjacent land territory. And international law confers upon a coastal state either exclusive, limited or concurrent jurisdiction, as the case may be, in or over the areas by virtue of its sovereignty over the land.

Rights over these maritime areas are legally both an emanation from and an automatic adjunct of the territorial sovereignty of the coastal state. In short, in the field of maritime law, the land dominates the sea. A ship or aircraft, wherever it may be, registered in a state is assimilated to that state's territory. This principle stands recognised in Indian law in Section 4 of the Indian Penal Code 1860 and Section 188 of the Code of Criminal Procedure, 1973.

Under India's Constitution, only Parliament has the exclusive competence to deal with certain subjects inter alia in regard to piracies and crimes committed on the high seas or in the air.

A distinction is sometimes drawn between civil or criminal jurisdiction, but there is, in principle, no essential difference between the problems created by assertion of civil and criminal jurisdiction over aliens. While exercising civil jurisdiction, st ates are required to apply principles of private international law in the adjudication of disputes involving a foreign element and to effectuate judgments of foreign courts in certain matters or as a result of international conventions.

A foreign judgment is not conclusive in certain circumstances in India. In this context, Section 13 of the Code of Civil Procedure is relevant and reads: ``A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except --

a) where it has not been pronounced by a court of competent jurisdiction

b) where it has not been given on the merits of the case;

c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

d) where the proceedings in which the judgment was obtained are opposed to natural justice;

e) where it has been obtained by fraud; and

f) where it sustains a claim founded on a breach of any law in force in India.

This Section does not apply to a foreign award. The rules of private international law are different from country to country. As the Supreme Court observed: ``Every case which comes before an Indian court must be decided in accordance with Indian law. It is another matter that the Indian conflict of laws may require that the law of a foreign country ought to be applied in a given situation for deciding a case which contains a foreign element. Such a recognition is accorded not as an act of courtesy, but on considerations of justice. It is implicit in that process that a foreign law must not offend our public policy.'' (Satya v. Teja Singh AIR 1975 SC 105-108).

In another decision in Surinder Kaur v. Harbax Singh (AIR 1984 SC 1224-1226), the Supreme Court observed: ``The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the state which has the most intimate contact with the issues arising in the case. Ordinarily jurisdiction must follow upon functional lines.''

The traditional doctrine of criminal jurisdiction followed in Anglo-American law is based on the fundamental principle that ``All crime is local''. The jurisdiction over the crime belongs to the country where the crime is committed. While this may be so even today as a general principle, the requirements of modern life in a shrunken world have made it necessary for states to exercise jurisdiction on the basis of criteria other than that of territorial location. States claim extra territorial jurisdictio n in cases where their legitimate interests are affected by objective territorial, nationality, passive personality, security, universality claims and so on.

On the basis of the so-called objective territorial principle, a state may assume jurisdiction in respect of an offence commenced in another state ``if one of the constituent elements of the offence, and more especially its effects'', has taken place wit hin its territory. This principle was applied by the Permanent Court of International Justice in the well-known Lotus case with regard to a collision between the French steamer Lotus and the Turkish steamer Boz-Kourt. The Turkish streamer sank and eight Turkish sailors and passengers on board drowned. This occurred on the high seas, an area which is not subject to the territorial sovereignty of any state.

When the French steamer docked at Constantinople, Turkey instituted criminal proceedings for involuntary manslaughter in pursuance of its law against the officer of the watch on board the Lotus at the time of the collision between the two vessels on the ground that the collision had produced effects on the Turkish vessel.

A corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the state of the flag of which it flies, and that consequently, what occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the state whose flag it flies.

Moreover, it says that a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principle must be applied as if the territories of two different states were concerned. The Permanent Co urt held: ``(T)here 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, t he delinquent.''

While, generally speaking, the principles laid in the Lotus case are still valid, the ration of that case no longer applies in regard to penal jurisdiction in matters of collision on the high seas, since conventional law now provides otherwise. (Article 97 of the U.N.Convention on the Law of the Sea, 1982).

The objective territorial principle is nothing but an elaboration of the territorial principle. For once an offence is treated, albeit by way of a fiction, as committed within a state, that state exercises not extra-territorial but territorial jurisdicti on. Another elaboration of the territorial principle is the so-called subjective territorial principle which confers jurisdiction on the state in the converse case, where the crime is commenced within its territory but is completed or consummated abroad. It is claimed that this principle is deduced from attachment of the criminal act to the will of the criminal actor and that the crime should be located where the criminals act or omission takes place, wherever it may have its effect.

It is well established that a state has jurisdiction in relation to any offence committed by any person on any ship or aircraft belonging to it, wherever it may be. On the basis of what is widely known as the ``protective'' or the ``security'' principle, most states claim jurisdiction principally over crimes committed by aliens upon foreign territory against its security, credit, territorial integrity or political independence of that state, and this claim is founded on the nature of the interest injure d, rather than the place of the act or the nationality of the offender.

This principle is invoked in respect of other crimes also. The need for this claim has arisen because states do not always have provisions in their national laws providing punishment for offences committed within their territory against the security and territorial integrity of foreign states.

states may not remain silent when their fundamental interests are affected. This does not, however, detract from the principle of international law that every state is under an obligation, in the words of the World Court, ``not to allow knowingly its ter ritory to be used for acts contrary to the rights of other states''.

There is, then, the universality principle founded on the concept that the suppression of certain offences is an interest common to all states, for example the offences of piracy and war crimes. By virtue of this principle, jurisdiction is assumed by a s tate over certain offences committed by aliens abroad on the basis of the presence of the alien within its territory.

Of late, in the context of the fight against international terrorism, a number of international conventions oblige each contracting state to make an offence described therein a criminal offence in the municipal law and require that state to take such mea sures as may be necessary to establish its jurisdiction over the offence in question when the only connection with that state is that the alleged offender is present in its territory. These conventions, if adhered to by an overwhelming number of states, may create universal jurisdiction over offences covered therein.

(The author is former Chairman of the CBDT.)