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1ST BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY, 2018

TC

BEFORE THE HON’BLE


SUPREME COURT OF ARYANIA

ORIGINAL WRIT JURISDICTION


SPECIAL LEAVE PETITION

W.P. (CIVIL). NO. ____OF 2017

UNDER ARTICLE 32 AND 136 OF THE CONSTITUTION OF ARYANIA

STATE OF CAESARINA…………………………………...……………….PETITIONER

Vs.

STATE OF ARYANIA……………………………………..……………….RESPONDENT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................................................3

STATEMENT OF JURISDICTION……………………………………………………..…6

STATEMENT OF FACTS ......................................................................................................7

ISSUES RAISED......................................................................................................................8

SUMMARY OF ARGUMENTS .............................................................................................9

PLEADINGS

ISSUE A ..................................................................................................................................11

ISSUE B ..................................................................................................................................12
ISSUE 1………………………………………………………………...………………. 12
ISSUE 2……………………………………………………………………………….... 13

ISSUE C …..………………………………………………………………………..………..16
ISSUE 1.……………………………………………………………………….………...16
ISSUE 2………………………………………………………………………………….17

PRAYER FOR RELIEF........................................................................................................18

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INDEX OF AUTHORITIES

STATUTES

1. Sec 5 of Territorial waters, Continental shelf, Exclusive Economic Zone and other

Maritime Zones Act 1976(India)…………………………………………………….…..12

2. Sec 7(1) of Territorial waters, Continental shelf, Exclusive Economic Zone and other

Maritime Zones Act 1976(India)…………………………………………………………14

3. Sec 1 The Suppression of Unlawful Acts against Safety of Maritime Navigation And

Fixed Platforms On Continental Shelf Act 2002…...……………………………………14

4. Sec 3 of The Suppression of Unlawful Acts against Safety of Maritime Navigation and

Fixed Platforms on Continental Shelf Act, 2002(India)……………….………………………15

5. Sec 302 of Indian Penal Code……………………………..…………………………......15

6. Sec 307 of Indian Penal Code……………………….………………………………..…..15

7. Sec 437 of Indian Penal Code…….…………………………………………………..…..15

8. Sec 183 of Code of Criminal Procedure…………………………………………………

9. Sec 5(4)(a) Territorial waters, Continental shelf, Exclusive Economic Zone and other

Maritime Zones Act, No. 80, Acts of Parliament,1976(India)…………………………...16

10. Sec 3.4 of Best Management Practices for protection against Somalia………...………..17

CASES

1. Liechtenstein v. Guatemala, I.C.J. Reports 1955.……………………………………12


2. Re: The Berubari Union and ... vs Unknown, AIR 1960 SC 845, 1960 3 SCR 250
(India)………………………………………………………………………………...14
3. R v Baxter (1975), 27 CCC (2d) 96 (Ont CA)……………………………………….14
4. Republic of Italy thr. Ambassador and ors. Vs Union of India and ors, (2013) 4 SCC
721……………………………………………..…………………………………….16
5. United States of America v. Kingsley ROBERTS, 1 F. Supp. 2d 601 (E.D. La. 1998)
April 6, 1998…………………………………………………………………………16
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6. Mobarik Ali Ahmad v. State of Bombay, AIR 1957 SC 857………………………..16


TREATIES AND CONVENTION

1. Art. 33(2) of United Nations Convention on Law of Sea…………………………………….11

2. sec. 3.5 and 8.1 of the Paris MOU…………………………………………………….12


3. sec. 3.2.2 and 8.1 of the Asia-Pacific Memorandum of Understanding on Port State
Control in the Asia-Pacific Region, Tokyo…………………………………………...12
4. Art. 33, United Nations Convention on Law of Sea…………….……………………14
5. Art. 57, United Nations Convention on Law of Sea…………………………………..14

ARTICLES

1. Utpal Kumar Raha & K. D. Raju, The Enrica Lexie case at the permanent court of arbitration:
an analysis……………………………………………………………………………...........11
2. Erik Jaap Molenaar, Port State Jurisdiction: Toward Comprehensive, Mandatory and Global
Coverage……………………………………………………………………………………..12

BOOKS

1. International Law, Malcom N. Shaw


2. The International Law of Sea, O.P. Sharma
3. Cases and Materials on International Law, David Harris
4. The International Law of Seas, Donald R Rothwell, Tim Stephens
5. The American Journal of International Law, Stanley D. Metzger

NOTIFICATIONS

1. Central Government notification dated 27-08-1981

WEB JOURNALS

1. https://www.marineinsight.com/marine-piracy-marine
2. http://www.manupatrafast.in/pers/Personalized.aspx
3. https://silpnujs.wordpress.com/2013/02/18/jurisdictional-issues
4. https://www.jstor.org/stable/

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5. https://ilcurry.wordpress.com/2013/04/06/indian-jurisdiction-over-the-italian-marines/
LIST OF ABBREAVIATION

Para. Paragraph

UNCLOS United Nations Conventions on Law of Sea

NM Nautical Miles

EEZ Exclusive Economic Zone

Ors. Others

ICJ International Court of Justice

BMP Best Management Practices

No. Number

Art. Article

Hon'ble. Honourable

SOP Standard Operating Procedure

edn. Edition

pg. Page Number

Vol. Volume

Dec December

Govt. Government

Doc. Documents

Res. Resolution

HC High Court

SC Supreme Court

Sec. Section

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Aryania has the jurisdiction in this matter under

Article 32 of the Constitution of Tausiland which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever ma y be appropriate, for the enforcement of any of the rights conferred by this
Part.”

Article 136 of the Constitution of Aryania which reads as follows:

“136. Special Leave to appeal by the Supreme Court-

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgement, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.

(2) nothing in clause (1) shall apply to any judgement, determination, sentence or order
passed or made by any Court or Tribunal constituted by or under any law relating to Armed
Forces.”

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STATEMENT OF FACTS

Aryania is an independent sovereign state, having a democratic, parliamentary form of


government with a written constitution. Caesarina is an independent sovereign, country with a
democratic form of government having a written constitution. Both the states of Aryania and
Caesarina have signed and ratified The Charter of World Organization, 1945 and The World
Treaty on Law of Sea, 1982.
On 15 October 2017 two marines of Caesarina on board S.S Gattaca due to unreasonable
presumptions open fired on Trident (Aryanian vessel) resulting in death of two fisherman Elias
Rodriguez and Derek Michael over the Contiguous Zone. FIR was filed against Rocco Palazzi
and Garibaldi Mazzini (Italian marines) and arrest followed.
The Ceasarian marines and Consul General contended that the offence was committed in
International Waters and therefore fell under World Treaty on Law of Sea, 1982 and only flag
state had jurisdiction. They also contended that according to Sec 4, Aryanian Penal Code is
applicable only to Aryanian citizens and hence the Italian Marines will not fall within the ambit
of Aryanian jurisdiction. On the other hand, Aryania stated that courts in Aryania have absolute
jurisdiction over the offence because the victims’ were citizens of Aryania and the boats were
registered in the same.
Casesarina filed a writ petition under Article 32 before the Hon’ble Supreme Court of Aryania.
Therein High Court of Tausiland, filed a Special Leave Petition challenging the order of the
High Court stating that the High Court Doesn’t have the required jurisdiction to adjudicate this
particular issue.

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ISSUES RAISED

ISSUE A: WHETHER THE INCIDENT OCCURRED BETWEEN THE NATION


STATES, SO THE FEDERAL UNIT OF TAUSILAND HAS ANY JURISDICTION?

ISSUE B: WHETHER THE INCIDENT OCCURRED IN A PLACE WHERE


ARYANIA HAS SOVEREIGN RIGHTS, NOT SOVEREIGNTY, AND THEREFORE,
ANY ASSERTION OF JURISDICTION BY ARYANIA WAS CONTRARY TO
WORLD TREATY ON LAW OF SEA, 1982 AND GENERAL PRINCIPLES OF
INTERNATIONAL LAW?

1. ARYANIAS ASCERTAIN OF JURISDICTION IS VALID AS IT CAN


EXERCISE SOVERIGN RIGHTS.
2. ARYANIA’S EXERCISE OF JURISDICTION IS NOT CONTRARY TO
WORLD TREATY ON LAW OF SEA, 1982.

ISSUE C: WHETHER THE MARINES WERE CARRYING OUT OFFICIAL


FUNCTIONS AND, AND THEREFORE, CAESARINA HAD EXCLUSIVE
JURISDICTION?

1. CAESARINAIAN MARINES WERE NOT CARRYING OUT THEIR


OFFICIAL DUTY.
2. THE ACT OF THE MARINES ARE NOT COVERED UNDER FUNCTIONAL
IMMUNITY AND THUS ARYANIA HAVE EXCLUSIVE JURISDICTION.

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SUMMARY OF ARGUMENTS

ISSUE A: WHETHER THE INCIDENT OCCURRED BETWEEN THE NATION


STATES, SO THE FEDERAL UNIT OF TAUSILAND HAS ANY JURISDICTION?

The incident occurred between Caesarian marines and Aryanian fisherman in the contiguous
one and it’s a settled law that generally states exercise sovereignty over territorial waters only
and not exercises specific rights of sovereignty over the Exclusive Economic Zone and
Contiguous Zone, but here in this case, by virtue of extra territorial application of Code of
Criminal Procedure as well as Suppression of Unlawful Acts, 2002, it is evident that Tausiland,
a federal unit of Aryania will have the jurisdiction to try this case wherein two Aryanian
Fisherman were killed at a distance of 20.5 nautical miles from the coast of Aryania.

ISSUE B: WHETHER THE INCIDENT OCCURRED IN A PLACE WHERE


ARYANIA HAS SOVEREIGN RIGHTS, NOT SOVEREIGNTY, AND THEREFORE,
ANY ASSERTION OF JURISDICTION BY ARYANIA WAS CONTRARY TO
WORLD TREATY ON LAW OF SEA, 1982 AND GENERAL PRINCIPLES OF
INTERNATIONAL LAW?

The alleged incident took place at a distance of 20.5 nautical miles off the coast of Aryania,
which falls under the ambit of Contiguous Zone, as per various International treaties and
Conventions as well as per the Municipal law of Aryania. There’s a fine line of difference
between sovereignty and rights of sovereignty, the first is exercised by the state in its territorial
waters whereas the latter is exercised by the state in Contiguous zones as well as Exclusive
Economic Zones. But municipal law of Aryania empowers the state to exercise sovereign rights
over the contiguous zones as well as over the exclusive economic zones, thereby the ascertion
of jurisdiction by Aryania is not contrary to International Law. Moreover there’s no
contradiction between International Law and Municipal Law, thus there’s complete validity of
municipal law over the issue.

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ISSUE C: WHETHER THE MARINES WERE CARRYING OUT OFFICIAL


FUNCTIONS, AND THEREFORE, CAESARINA HAD EXCLUSIVE
JURISDICTION?

The Marines were deputed on the Caesarian vessel to protect the vessel from pirate attacks and
in order to engage any pirate ship, some standard procesdures are to be followed, which the
Casearian marines did not follow and opened fire on unarmed Aryanian vessel Trident thereby
resulting in the death if two fisherman in the contiguous zone, that is at a distance of about 20.5
nautical miles, thus they were acting contrary to their official duty and thus functional
immunity will not be applicable on them as they deviated from the standard protocols of their
official duty. Therefore in light of these events, it can be concluded that Aryania has exclusive
jurisdiction to try and prosecute the two alleged caesarean marines accused of killing two
Aryanian fisherman.

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PLEADINGS

ISSUE A: WHETHER THE INCIDENT OCCURRED BETWEEN THE NATION


STATES, SO THE FEDERAL UNIT OF TAUSILAND HAS ANY JURISDICTION?

It is humbly submitted before the Hon’ble Supreme Court that Federal unit of Tausiland will
have jurisdiction:

The alleged incident according to the statement of facts had taken place at 20.5 nautical miles
from the baseline which falls within the contiguous zone which may not extend beyond 24
nautical miles from the baselines from which the breadth of the territorial sea is measured.1
The contiguous zone of India is an area beyond and adjacent to the territorial waters and the
limit of the contiguous zone is the line every point of which is at a distance of twenty-four
nautical miles from the nearest point of the baseline.2 It is also similarly defined under certain
other acts. 3

Firstly, in practice, the coastal state asserts its jurisdiction over the crime committed on board
only when it affects the peace and good order of the coastal state (such as dumping of sewage
or serious crimes like murder).4 Herein two marines of Caesarina (Rocco Palazzi and Garibaldi
Mazzini) had presumed pirate attack and open fired, resulting in the death of two fishermen
(Elias Rodriguez and Derek Michael). Such crime committed would fall under ‘serious
crimes’5 hence jurisdiction would be asserted to the coastal state.

Secondly, according to Article 27 (1) (a)6, in exceptional cases, where the coastal state is getting
affected due to the incident occurring in high seas, the coastal state would exercise jurisdiction
over it. Herein Tausiland being the coastal state nearest to the incident and the death of two
innocent citizens belonging to the same would undoubtedly affect the peace of the state.

Thirdly, the coastal state (Tausiland) can take predominantly corrective enforcement action
(i.e., detention for the purpose rectification) regarding visiting foreign vessels as abiding by the

1
United Nations Convention on Law of Sea, art. 33(2), Dec 17, 1970.
2
Territorial waters, Continental shelf, Exclusive Economic Zone and other Maritime Zones Act, No. 80, Acts of
Parliament,1976, §5.
3
Id.
4
Utpal Kumar Raha & K. D. Raju, The Enrica Lexie case at the permanent court of arbitration: an analysis,
I.J.I.L10.1007.
5
Ibid.
6
United Nations Convention of the Law of Seas, Dec 17, 1970.

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principle of Port State Jurisdiction (PSC)7. These regional PSC agreements, even though non-
legally binding, contain savings clauses8. Thus, a port state is not restrained from prescribing
more stringent standards than those internationally agreed or to take more onerous enforcement
measures.9

The coastal state may also challenge the jurisdiction of the flag states on the basis of well-
known international law principles of jurisdiction. First, that it is common practice that the
master of the ship is required to report about the crime to the next port which may claim that
the effect of the crime may be dealt with by it, a principle that is known as the principle of
objective territorial jurisdiction or port state jurisdiction. In the Nottebohm case10, it was held
that the genuine link between the citizen and the state confers the best possible jurisdiction to
the latter. Second, is the passive personality principle that says that the state, against whose
citizen the crime has been committed, may assert jurisdiction.11 Section 183 empowers the local
courts or the High Court of Tausiland to enquire and adjudicate any matter with respect to any
offence committed in the course of performing a journey or voyage.12

Therefore by virtue of this section the Tausiland High Court has full jurisdiction over the
matter.

We herein conclude that the federal unit of Tausiland situated in Aryania will have a
jurisdictional right over the contiguous zone and also the merchant vessel, SS Gattaca
belonging to Caesaria.

ISSUE B: WHETHER THE INCIDENT OCCURRED IN A PLACE WHERE


ARYANIA HAS SOVEREIGN RIGHTS, NOT SOVEREIGNTY, AND THEREFORE,
ANY ASSERTION OF JURISDICTION BY ARYANIA WAS CONTRARY TO
WORLD TREATY ON LAW OF SEA, 1982 AND GENERAL PRINCIPLES OF
INTERNATIONAL LAW?

7
Erik Jaap Molenaar, Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage,
31.01.2007.
8
Eg: sec. 3.5 and 8.1 of the Paris MOU, sec. 3.2.2 and 8.1 of the Asia-Pacific Memorandum of Understanding on
Port State Control in the Asia-Pacific Region, Tokyo.
9
Supra 4.
10
Liechtenstein v. Guatemala, [1953] ICJ Rep 111 1955.
11
Supra 4.
12
Code of criminal procedure, 1974

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It is humbly submitted before the Hon’ble court that the Municipal Laws of Aryania will be
applicable as Aryania has the rightful jurisdiction to try and prosecute this case.

1. ARYANIAS ASCERTAIN OF JURISDICTION IS VALID AS IT CAN


EXERCISE SOVERIGN RIGHTS.
‘Sovereignty’ refers to the supreme right of the state to exercise their full and effective control
over their internal waters as well as their territorial waters. 13 That means the law of land will
be followed in the internal as well as in the territorial waters without any hindrance.
Whereas Sovereign Rights refers to the exercise of sovereign power by the state outside the
territorial waters with respect to certain grounds and certain limitations.
In Sovereign Rights, exclusive authority of state no longer concerns all of its activities, but
only some of them.14
In light of the facts of the present case, it is evident that the alleged crime took place at a
distance of 20.5 nautical miles from the coast of Tausiland which is a federal unit of Aryania,
that is the alleged incident took place in the Contiguous zone as per UNCLOS15 and Marine
Zones Act16 which extends the Contiguous Zone up to 24 nautical mile from the Territorial
waters. Thus the Contiguous Zone is a part of the Exclusive Economic Zone which cannot be
extended beyond 200 nautical miles from the baseline of the Coastal state17.
Hence section 7 of the municipal law18 gives sovereign rights to the state of Aryania over its
Contiguous Zone as stated under Clause 4(a)19. As laid down in the mentioned section, that the
state can exercise its power and jurisdiction to take any measure in cases where the “Security
of India” is concerned.

2. ARYANIA’S EXERCISE OF JURISDICTION IS NOT CONTRARY TO


WORLD TREATY ON LAW OF SEA, 1982.
In light of the facts and circumstances of the present case, it is hereby submitted that Aryania’s
Constitution imparts power to the government to exercise its jurisdiction over its maritime
borders.

13
https://www.iucn.org/content/sovereignty-and-sovereign-rights (Accessed on 18th December, 2017).
14
Id.
15
United Nations Convention on Law of Sea, art. 33, Dec 17, 1970.
16
Supra 2
17
Territorial waters, Continental shelf, Exclusive Economic Zone and other Maritime Zones Act,No. 80, Acts of
Parliament,1976(India), §7(1); United Nations Convention on Law of Sea, art. 57, Dec 17, 1970.
18
Id.
19
Supra 17.

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The alleged incident of attacking and killing two innocent fishermen (Elias Rodriguez and
Derek Michael) of Aryania is crime which attracts penal provisions20 present in the Municipal
Law. The municipal Law of Aryania is quite vocal about the jurisdictional issues 21 related to
Maritime Borders and as the alleged killing took place at a distance of about 20.5 nautical miles
off the coast of Aryania, the location of the crime falls under the ambit of Contiguous Zone22
and Exclusive Economic Zone23, thus the state of Aryania can exercise its jurisdiction with
respect to this matter. The Municipal law clearly states that:
“(2) It extends to the whole of India including the limit of the territorial
waters, the continental shelf, the exclusive economic zone or any other maritime zone of India
within the meaning of section 2 of the Territorial Waters, Continental Shelf, Exclusive
Economic Zone and other Maritime Zones Act, 1976 (80 of 1976)24”
Therefore the alleged attack on the two Aryanian fisherman by the two Caesarinaian Marines
resulted in death of the former, thus the act falls under the ambit of Section 3 of S.U.A, 200225
and other26 Municipal Laws.
Therefore the Aryanian government has the complete authority to try and prosecute the two
marines as Aryanian Government has complete jurisdiction because not only the act was
unlawful27 but also the place of commission of crime falls under the ambit28 of Municipal Law
of Aryania.
In addition to that the Government of Aryania has been imparted jurisdictional power under
Marine Zones Act29 to effectively exercise its power wherever there’s a threat to “Security of
India30” and also with respect to “Fiscal Matter31”.

20
The Suppression of Unlawful Acts against Safety of Maritime Navigation And Fixed Platforms On Continental
Shelf Act, No. 69 of 2002(India), §1.
21
Id.
22
Supra 2; United Nations Convention on Law of Sea, art. 33, Dec 17, 1970.
23
Territorial waters, Continental shelf, Exclusive Economic Zone and other Maritime Zones Act, No. 80, Acts of
Parliament,1976(India), §7; United Nations Convention on Law of Sea, art. 57, Dec 17, 1970.
24
Supra 20.
25
The Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental
Shelf Act, No. 69 of 2002(India), §3.
26
Indian Penal Code, 1860, Act No. 45, §302, §307, §437
27
The Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental
Shelf Act, No. 69 of 2002(India), §3(g) (i).
28
Supra 20.
29
Territorial waters, Continental shelf, Exclusive Economic Zone and other Maritime Zones Act, No. 80, Acts of
Parliament,1976(India), §5(4)(a).
30
Id.
31
Supra 29.

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Moreover whenever there is a conflict between municipal law and International Law, municipal
Law will prevail over the International Law32. Moreover precedents prove that the presence of
accused within the jurisdiction of the country is not an essential element to try that particular
person under that municipal law33.
Moreover in the case of Italy vs India34 where there are similar facts court applied the passive
nationality principle and held that India has necessary jurisdiction to try that particular
offender.
“35The increased complexity of modern life emanating from the advanced
technology and travel facilities and the large cross border commerce made it possible to
commit crimes whose effects are felt in territories beyond the residential borders of the
offenders. Therefore, States claim jurisdiction over; (1) offenders who are not physically
present within; and (2) offences committed beyond-the-territory of the State whose "legitimate
interests" are affected. This is done on the basis of various principles known to international
law, such as, "the objective territorial claim, the nationality claim, the passive personality
claim, the security claim, the universality claim and the like”
In another case court held that the state who citizen is the victim has the jurisdiction to try that
case as per “effect doctrine36”.
Even the Protective Principle mentions that “states may exercise jurisdiction over aliens who
have committed an act abroad which is deemed prejudicial to the security of the particular state
concerned”37.
In a Supreme Court case38, the hon’ble Supreme Court held that the exercise of criminal
jurisdiction depends on the location of the offence, and not on the nationality of the alleged
offender or his corporeal presence in India.
Lastly Section 188A39 of Code of Criminal Procedure, which was brought by a notification of
central government dated 27-08-1981, Central government in pursuant to section 7(7)40
increased the territorial limit of IPC as well as CrPc. Thus by virtue of this section municipal
laws such as I.P.C and CrPC have complete jurisdiction over contiguous zone as well as over

32
In Re: The Berubari Union and ... vs Unknown, AIR 1960 SC 845, 1960 3 SCR 250 (India).
33
R v Baxter (1975), 27 CCC (2d) 96 (Ont CA).
34
Republic of Italy thr. Ambassador and ors. Vs Union of India and ors, (2013) 4 SCC 721.
35
Id.
36
United States of America v. Kingsley ROBERTS, 1 F. Supp. 2d 601 (E.D. La. 1998) April 6, 1998.
37
Malcom N. Shaw, International Law, Cambridge University Press, 6 th Edition, Page 666.
38
Mobarik Ali Ahmad v. State of Bombay, AIR 1957 SC 857
39
Central Government notification dated 27-08-1981
40
Territorial waters, Continental shelf, Exclusive Economic Zone and other Maritime Zones Act, No. 80, Acts of
Parliament,1976(India), §7(7).

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Exclusive Economic Zone, therefore the two caesarean marines can be tried under the
municipal law of Aryania for killing two fisherman.
Therefore it can be concluded that Aryanis exercise of jurisdiction over the two marines is not
contrary to International documents.

ISSUE C: WHETHER THE MARINES WERE CARRYING OUT OFFICIAL


FUNCTIONS AND, AND THEREFORE, CAESARINA HAD EXCLUSIVE
JURISDICTION?

It is humbly submitted before the Hon’ble Supreme Court that the two marines who were
Caesarinaian Marines were not performing their official duty and thus can be tried by the state
of Aryania as they had exclusive jurisdiction.
1. CAESARINAIAN MARINES WERE NOT CARRYING OUT THEIR
OFFICIAL DUTY.

Firstly, according to the statement of facts41, it is clearly stated that objective of deployment of
two marines on board S.S Gattaca (Caesarian merchant vessel) was to ensure protection of the
vessel from Pirate Attacks, but as per the statement of facts, there was no attempt of attack
from the Trident (Aryanian fishing boat). 11 fishermen were on board the Aryanian vessel,
amongst which only two were awake, one was fishing, another one was driving and the rest
were asleep.42 Thus no question of attack with respect to the act of the fishermen would be
valid in any circumstance. Hence the open fire by the marines allegedly killing the two
fishermen (Elias Rodriguez and Derek Michael)43 inside the contiguous zone was a clear
departure from their official duty.

Secondly, the marines did not abide by the standard procedures that are to be taken into
consideration and common practices during a Pirate Attack which is to outrun the attackers by
speeding up and/or make it difficult to board for the pirates.44

Thirdly, these merchant vessels often take other measures including water guns, high frequency
sound weapon which all are non-lethal in nature45 , thus instead of using these, the marines

41
¶9, Moot Proposition
42
¶10, Moot Proposition
43
¶4, Moot Proposition
44
Section 3.4 of Best Management Practices for protection against Somalia based piracy- Version 4/ August
2011 (Suggested Planning and Operational Practices for ship Operators and masters of Ship Transiting the High
Risk Area.
45
https://www.marineinsight.com/marine-piracy-marine/18-anti-piracy-weapons-for-ships-to-fight-pirates/
(Accessed on 22nd December)

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used automatic lethal weapons inside the contiguous zone without even informing or alerting
the coastal state which is a mandatory step before any action is taken.46 Thus it can be easily
deduced that the two marines acted contrary to their official duty.

2. THE ACT OF THE MARINES ARE NOT COVERED UNDER


FUNCTIONAL IMMUNITY AND THUS ARYANIA HAVE EXCLUSIVE
JURISDICTION
Functional Immunity refers to the immunity from the jurisdiction of other states in relation to
acts performed in their official capacity (‘functional immunity’ or ‘immunity ratione
materiae’). As this type of immunity attaches to the official act rather than the status of the
office, it may be relied on by all who have acted on behalf of the state with respect to their
official acts47.
The two marines acted in such a way which is contrary to their official duty, therefore the
Doctrine of Functional Immunity cannot be attributed to the acts of the two marines.
Firstly, International Law states that in order to take a military action in the contiguous zone
and the Exclusive Economic Zone, the flag state has to take permission from coastal state. No
country herein is authorised to carry out any military exercises or manoeuvres, in particular
those involving the use of weapons or explosives without the consent of the coastal State48.
Secondly, in light of the statement of facts, the flag state did not take any necessary consent
from the coastal state yet made the use of weapons and has allegedly killed two fisherman of
the coastal state thus hampering the peace, safety and security49 of the residents of the coastal
state. In the Pinochet case50, it was held that a state or state official cannot take a plea of
immunity against a criminal act.
Thus it can be concluded that the acts of the two marines were contrary to their official duty
and by virtue of that, the defence of functional Immunity cannot be awarded to them and
therefore Aryania has exclusive Jurisdiction on the two marines for the same.

46
Id.
47
Dapo Akande & Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic
Courts, EJIL, Pages 815–852.
48
http://www.un.org/depts/los/convention_agreements/convention_declarations.htm (Accessed on 18th Dec,
2017).
49
Supra 2.
50
R v Bow street Metropolitan Stipendiary Magistrate, exparte Pinochet Ugarte 3 WLR 1, 456(H.L. 1998).

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MEMORIAL FOR THE RESPONDENT
1ST BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY, 2018

PRAYER FOR RELIEF

In light of the issues raised, arguments advanced and cases cited it is most humbly prayed
before this Hon’ble Court—
1. That the adjudication of the present matter by the Hon’ble High Court of Tausiland
is valid.

2. That Aryania has sovereignty over the contiguous zone, therefore Aryania’s
assertion of jurisdiction is valid.

3. That the Marines were not carrying out official function thereby Aryania has
exclusive jurisdiction.

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MEMORIAL FOR THE RESPONDENT