To what extent does a country have the right to exercise territorial jurisdiction in international water? A Special Court of Mumbai on February 15, 2021 rejected the deportation plea of eight Pakistani nationals who were caught by the Indian Coast Guard off the Gujarat coast in 2015 in a drug case. The accused have filed an application for deportation to Pakistan on the grounds that India does not have the territorial jurisdiction to try the case in its courts.

Facts of the Case

In 2015, the Indian Coast Guard caught a boat carrying an estimated 232 kg of heroin 157 nautical miles off of the the coast of Gujarat. The eight individuals arrested were identified as Pakistani citizens who were accused of allegedly smuggling drugs into India. Accordingly, the case was registered in a Special Court of Mumbai to try the individuals.

The Defense Counsel claimed that India did not have the jurisdiction to hear the case. It was argued that that since the point of interception of the boat was beyond the territorial limits of India’s jurisdiction, no court of India had the right to try the individuals. Instead, it was suggested that the accused should be sent back to Pakistan where they can stand trial of their own country’s court and laws.

However, the Special Public Prosecutor claimed that the boat and the individuals were arrested within the Exclusive Economic Zone of India which as per the Maritime Act, 1976 falls under the territorial waters of India. He further relied on UN Resolution on the prohibition of illicit traffic in narcotic drugs and psychotropic substances to point out that a country can act against offenders even if the alleged offence is committed beyond its territory, if that affects the country concerned. Therefore, the Court has the right to undertake the trial and proceed for a decision in accordance with the law.

Subsequently, the Court concluded that while the Court did lack territorial jurisdiction as the accused were arrested beyond the 12 nautical miles limit of the territorial waters, the seriousness of the alleged offence is vital to the national security of the state of India. Therefore, the prosecution was awarded the opportunity to prove the jurisdiction of the Court to hear the case.

What is Territorial Jurisdiction?

Jurisdiction is the ability of a State to make and enforce its law. The concept of jurisdiction is related to the sovereignty of the State. Jurisdiction can be held to exist in a variety of contexts i.e. nationality of the actors, surrounding circumstances of the act, or the location of the act. Jurisdiction of a state is generally linked to the territory of the state.

Territorial Jurisdiction or the territoriality principle under international law refers to the exclusive authority of the State to deal with criminal issues arising within their territories. This means that the state has the right to prescribe, enforce and adjudicates its rule of law with over a person, property or event within its territory. The territorial jurisdiction of a state generally extends to land, national airspace, internal water bodies, territorial sea; and national aircraft or vessel.

Territorial Jurisdiction under International Maritime Law

The primary source of laws governing the seas is the United Nations Convention on the Law of Sea (UCLOS), 1982. The same has been signed and ratified by both India and Pakistan. Both states are bound to ensure compliance to the rules contained therein. Accordingly, as per Article 3 of the United Nations Convention on the Law of Sea the limit of a state’s territorial water is defined as up to 12 nautical miles measured from the baseline. This means that a State can extend its jurisdiction up to 12 nautical miles from the coast.

A state may have the power to exercise control over the zone contiguous to its territorial sea in order to “prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; or punish infringement of the above laws and regulations committed within its territory or territorial sea,” the contiguous zone cannot be extended beyond 24 nautical miles from the baseline, as per Article 33 of UNCLOS. Therefore, a state cannot extend its jurisdiction beyond the specified 24 nautical miles, and even then, it can only do so in the circumstances mentioned hereinabove.

Furthermore, an Exclusive Economic Zone, according to Article 55 and 57 of UNCLOS, is an “area beyond and adjacent to the territorial sea” and does not extend further than 200 nautical miles from the base line. However, as per Article 56, a state’s jurisdiction in this zone is only limited to the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment.

The International Court of Justice in Anglo Norwegian Fisheries Case held that:

The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.

In light of the international law, it is clear that India does not have the jurisdiction to try the accused as the same were caught beyond the 12 and 24 nautical mile radius. The boat was apprehended in the exclusive economic zone wherein the State of India’s jurisdiction over criminal issues does not extend.

National Security an exception to Territorial Jurisdiction

Under international law, the principle of extraterritorial jurisdiction allows states to exercise jurisdiction, or legal power, outside of its territorial borders that endangers the national security threats of that State such as acts of treason, or acts against state officials.

There are a number of concerns that arise in light of the aforementioned principle with respect to the case at hand, however, the most relevant with respect to the case at hand is whether narcotic trade constitute as a national security issue.

While drug trafficking may have an adverse effect on the health of the citizen of the State where it is being smuggled into, its effect is however not the same as terrorism or treason which results in immediate threat to the security of the country. If the principle of extraterritoriality is applied to cases involving smuggling of drugs, then it could be applied to almost any circumstances. It is imperative that extraterritorial jurisdiction should be limited to avoid international confrontations.  If India wants to prove its jurisdiction over the distribution of controlled substances by an alien on foreign vessel in international waters, India has to show an actual or potential adverse effect within its territory. However, it is important to note that the adverse effect cannot be demonstrated where there is an absence of intent to import the substance into India, or knowledge that it will be imported.

Can Pakistan claim Jurisdiction?

As discussed before, jurisdiction includes the principle of nationality. It is an inherent power of a sovereign state to regulate the acts of its citizens. Therefore, it stands to reason that a State has the jurisdiction over the acts of its citizens irrespective of their location. A State cannot enforce its criminal law within the territory of another, but it may compel observance of its law by extraditing the person who has broken the law outside the State’s territory, and holding him accountable under its own Courts.

In this case, the accused were identified as Pakistani citizens. Hence, Pakistan does have the right to exercise its jurisdiction over the apprehended. However, jurisdiction on grounds of nationality is not the only form of jurisdiction available to Pakistan. Pakistan may claim that it has territorial jurisdiction over the case. The definition of territory includes national vessel. In this case, the boat, Al-Yasir, captured by the Indian Coast Guard was registered in Pakistan. Accordingly, it may be safe to presume that it is a national vessel and therefore is part of Pakistan’s territory.

Moreover, the boat and the individuals were apprehended in international waters where India does not have the right to exercise its territorial jurisdiction. India is trying to extend the principle of extraterritoriality to the act. However, it is unclear whether the accused intended to illicitly smuggle drugs into India thereby endangering its national security.

Conclusion

Drug trafficking while it does affect the health security of a State, it is debatable whether it falls under the ambit of national security. Extending jurisdiction over such a case opens up a host of issues in international law. It disregards the principle of sovereignty and territorial integrity of a State if countries start exercising their jurisdiction over distribution of controlled substances by foreign individuals on foreign vessels in international waters. In this case, it is clearly established that India will be acting beyond its authority if it extends its jurisdiction over the accused. Moreover, it is clear that Pakistan has a greater jurisdiction to try the accused. In such a case, Pakistan may request the Government of India to deport the eight individuals back to Pakistan where they may be tried in accordance with the rule of law.