ITLS Case No.

-2021-03

IN THE MATTER OF AN ARBITRATION

Before

AN ARBITRAL TRIBUNAL CONSTITUTED UNDER ANNEX VII

TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

THE GERMAN REPUBLIC

Versus

THE REPUBLIC OF INDIA

-concerning-

THE “WEIMER” INCIDENT

MEMORANDUM ON BEHALF OF RESPONDENT

 TABLE OF CONTENTS

LIST OF ABBREVIATION------------------------------------------------------------------------02
INDEX OF AUTHORITIES------------------------------------------------------------------------03
STATEMENT OF JURISDICTION---------------------------------------------------------------04
STATEMENT OF FACTS-----------------------------------------------------------------------05-06
STATEMENT OF ISSUES--------------------------------------------------------------------------07
SUMMARY OF ARGUMENTS--------------------------------------------------------------------08
ARGUMENTS ADVANCED-------------------------------------------------------------------09-15
PRAYER---------------------------------------------------------------------------------------------- 16

MEMORANDUM ON BEHALF OF RESPONDENT

 LIST OF ABBREVIATION

SL. NO. ABBREVIATION FULL FORM

1 & And
2 Art. Article
3 Const. Constitution
4 FIR First Information Report
5 HC High Court
6 Hon’ble Honorable
7 No. Number
8 Props. Proposition
9 SC Supreme Court
10 SCC Supreme Court Cases
11 Supl. Supplement
12 v. Versus

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 INDEX OF AUTHORITIES

CASES
SL. NO. CASE NAME

1 Enrica Incident (Italy v.India)

2 Jurrisdictonal Immunites of the State (Germany v. Italy)

BOOKS AND COMMENTARIES

CONSTITUTIONAL LAW BY M P JAIN
THE INDIAN PENAL CODE BY RATAN LAL AND DHIRAJ LAL

CONVENTION
UN CHARTER
UNCLOS

LEGAL WEBSITES
ruwanthikagunaratne.wordpress.com
https://blog.ipleaders.in/

MEMORANDUM ON BEHALF OF RESPONDENT Pg.3

 STATEMENT OF JURISDICTION

The German Republic, the Petitioners have submitted the Petition before the Arbitral Tribunal

Constituted Under Annex Vii To The 1982 United Nations Convention On The Law Of The Sea

in the matter of The Weimar Incident in pursuance of United Nations Convention On The Law

Of The Sea(UNCLOS) provisions . The Respondent (The Republic of India) humbly submits to

this jurisdiction which has been invoked by the Petitioners. However, the Respondent reserves

the rights to respectfully challenge the same.

The present Memorial sets forth the facts, contentions and arguments and prayer on behalf of

respondent.

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 STATEMENT OF FACTS

For the sake of brevity, the material facts are placed herewith-

Background of fact

1. On 10TH July 2021 an Indian fishing vessel called ‘The X’ carrying 11 men, was

engaged in fishing, which was within the Exclusive Economic Zone of India, 20.5

nautical miles from Maharatra’s coastline to be precise.

2. There were two German men on board an German oil tanker ship called the Weimer.

These two men were part of their tanker that was travelling from Mumbai to Iran. It

contained a Vessel Protection Detachment (hereinafter referred to as VPD) which was

a German contingent to protect the ship from pirates in the sea, as piracy was

prevalent in that area.

Event in chronological order

3. As the VPD saw this fishing ship, confusing them to be pirates, used their warning

alarm implying that they must turn around. This was followed by the VPD opening

fire on the ship which they claim were warning fires. The firing led to the death of

two fishermen, Vignesh Rao and Ajeet Raut. Both of them died on the spot. The open

fire also endangered the lives of the other nine fishermen and caused some damage to

their fishing ship as well.

4. This was informed to the Local Guard and thereby the Indian Coast Guard and the

Indian Navy looked into the matter and they found the Weimer ship. Upon

questioning, they confirmed that it was the ship that was involved in the firing and

hence they were asked by the Indian Coast Guard to return to the Indian Coast for

investigation of the killing as is necessary by the standard procedure. The captain of

the ship agreed to the investigation and took the ship to the Mumbai Port.

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5. It was also stated by Germany that the Indian troops indulged in trickery and coercion

by use of aerial and Coast Guard units to restrict the movement of the Weimer and

bring her to the coast. Although India has denied any such act on their part and states

that this was solely part of their duty to maintain the maritime security of the country,

this remains to be a question of merit that is not yet decided.

6. Upon reaching the coast, there was a thorough investigation of the incident and

recording of evidence done by the interrogation of the crew. The Mumbai Police

established that the head of the VPD, Sergeant Karl Himmer and another member of

the VPD, Sergeant Joseph Bernard were involved in the firing and so were asked to

leave the ship. They were both members of the German armed forces and were

performing official duties as marines.

7. Both of them were charged under various offences under the Indian Penal Code,

1860 that included Murder, Attempt to murder and were arrested. There was also the

risk of death penalty for both the marines.

8. As soon as the German Government came to know of these incidents, it took actions

to investigate the events. While there was a criminal investigation that was initiated in

Berlin, an admiral of the German Navy was sent to India to deal with the incident and

to complete their investigation as well.

9. The jurisdiction over the event is contested by Germany and India with Germany

seeking provisional orders from the International Tribunal for the Law of the Sea

compelling India to cease prosecutions and release the Germans held in custody until

such time as the United Nations Convention on the Law of the Sea (UNCLOS)

Tribunal can determine which nation can exercise jurisdiction.

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 ISSUES RAISED

1. WHETHER THIS PETITION IS MAINTAINABLE BEFORE THIS ARBITRAL

TRIBUNAL.

2. WHETHER THE GERMAN MARINES BE TRIED FOR MURDER OF THE TWO

FISHERMEN UNDER THE JURISDICTION OF THE INDIAN COURTS?

3. WHETHER THE GERMAN MARINES BE ENTITLED TO SOVEREIGN

IMMUNITY?

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 SUMMARY OF ARGUMENTS

1. NO THIS PETITION ISN’T MAINTAINABLE BEFORE THIS ARBITRAL

TRIBUNAL.

It is humbly submitted to this Tribunal that the present case is not maintainable. The

tribunal has no jurisdiction over the present case or any of the claims made by

Germany..

2. YES THE GERMAN MARINES CAN BE TRIED FOR MURDER OF THE

TWO FISHERMEN UNDER THE JURISDICTION OF THE INDIAN

COURTS.

It is humbly submitted to this Tribunal that the German marines can be tried for

murder of the two fishermen under the jurisdiction of the Indian courts

3. NO THE GERMAN MARINES AREN’T ENTITLED TO SOVEREIGN

IMMUNITY.

It is humbly submitted to this Tribunal that the German marines aren’t entitled to

sovereign immunity.

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 ARGUMENTS ADVANCED

1. NO THIS PETITION ISN’T MAINTAINABLE BEFORE THIS ARBITRAL

TRIBUNAL.

It is humbly submitted to this Tribunal that the present case is not maintainable. The tribunal

has no jurisdiction over the present case or any of the claims made by Germany. To support

the argument the counsel places some provision to counter it.

Firstly, as per Article 56 -India’s sovereign rights were violated by German actions in the

seas exceeding its rights by firing.

Secondly, as per Article 58- Disregarded India’s rights as the coastal state in the Exclusive

Economic Zone.

Thirdly, as per Article 87, 88 and 90-Violation of India’s freedom of navigation and right to

use its Exclusive Economic Zone.

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 2. YES THE GERMAN MARINES CAN BE TRIED FOR MURDER OF THE

TWO FISHERMEN UNDER THE JURISDICTION OF THE INDIAN

COURTS.

It is submitted that the Indian Courts do have the jurisdiction to try the case of German

Marines booked under offence of Murder of two fisherman.The Respondent submits that the

Union Government had extended India's sovereignty up to the Exclusive Economic Zone

(EEZ) and therefore India had jurisdiction under its laws to try the marines. It also found that

Article 97 of UNCLOS was inapplicable to the facts of the case as the incident of firing by

the marines could not be deemed to be an ‘incident of navigation’ or ‘collision’ as defined in

the Act. The Court noted that the terms used in Article 97 could not include a criminal act

and that while Article 100 of UNCLOS (which inter alia deals with issues of cooperation

amongst member states in matters of piracy) could apply to the incident, the same would have

to be considered only after evidence had been presented in the course of the trial.

The Respondent also want to state that the Union government and not the State of Kerala had

jurisdiction to adjudicate the dispute.

A large proportion of reports have stressed that the crucial point in deciding the question of

jurisdiction is to determine where the incident occurred. Territory is merely one method

whereby jurisdiction can be conferred on a court and there is no principle of International law

that mandates the use of only this principle to establish jurisdiction.

Section 1 of the Indian Penal Code, 1860, provides that the Code extends to the whole of

India except the State of Jammu and Kashmir. Per Section 18, “India” is defined as the

territory of India, except Jammu and Kashmir. The Code is therefore normally applicable to

the extent of India’s territorial waters but not to India’s EEZ or contiguous zones.

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However, Section 4 states that the provisions of this Code also apply to offences committed

by any Indian in any place outside India and to any offences committed by any person on any

ship or aircraft registered in India, wherever it may be. Further, under Section 188 of the

Code of Criminal Procedure, 1973, when an offence has been committed outside India: (a)by

a citizen of India or (b) by a person, not being a citizen, on any ship or aircraft registered in

India, he may be dealt with in respect of such offence as if it had been committed at any place

within India at which he may be found.

Thus, under domestic legislation, a foreign citizen can be prosecuted in India for the

commission of an offence on board an Indian ship or airplane, even if the ship or airplane is

outside Indian Territory at the time of commission of the offence. However, if a foreigner

initiates an offence which is completed within Indian territory, he is, if found within Indian

territory, liable to be tried by the Indian Court within whose jurisdiction the offence was

completed.

This provision of domestic law is very much in line with the principles enunciated in Article

91 of UNCLOS.

A case similar to the Weimer one was previously adjudicated by the Permanent Court of

International Justice in 1927. In this case, a French steamer, the Lotus, collided with a

Turkish vessel, the Boz-Kourt, on the high seas, killing eight of her crew and passengers.

Upon the French vessel’s arrival in Istanbul, the French crew was tried by the Turkish

authorities. France adopted arguments similar to those used by Italy in the present matter.

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Holding against the French, the court, inter alia, observed that:“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 the ship flies. If, therefore, 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 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”

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 3. NO THE GERMAN MARINES AREN’T ENTITLED TO SOVEREIGN

IMMUNITY.

Before we enter into the submissions raised in this petition, it is useful to recapitulate the

scope and grounds of sovereign immunity.

Firstly, the customary nature of State immunity.

The State immunity derives from the principle of sovereign equality found in Article 2(1) of

the UN Charter. It is “one of the fundamental pillars of the international legal order.” As

between India and Germany this right is derived from customary international law, in the

absence of a treaty to that effect. Based on its analysis of State practice and opinio juris, “…

practice shows that, whether in claiming immunity for themselves or according it to others,

States generally proceed on the basis that there is a right to immunity under international

law, together with a corresponding obligation on the part of other States to respect and give

effect to that immunity.”

Secondly, the relationship between jurisdictional immunity and the territorial

sovereignty of the forum State.

“This principle [of State immunity] has to be viewed together with the principle that each

State possesses sovereignty over its own territory and that there flows from that sovereignty

the jurisdiction of the State over events and persons within that territory. Exceptions to the

immunity of the State represent a departure from the principle of sovereign equality.

Immunity may [also] represent a departure from the principle of territorial sovereignty and

the jurisdiction which flows from it”.

Thirdly,the classification of acts as falling under jus imperii or jus gestionis.

The jus imperii (law governing the exercise of sovereign power) and jus gestionis (law

relating to non-sovereign activities of a State, especially private and commercial activities).

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A domestic court has to assert the nature of the act (whether imperii or gestionis) before it

hears the case; because, this will determine if the State is entitled to immunity before the

domestic court.

Therefore the counsel submits that the “The acts of the German armed forces which is the

subject of the proceedings in the Italian courts clearly constituted acta jure imperii…

notwithstanding that they were unlawful…. To the extent that this distinction (between jus

imperii and jus gestionis) is significant for determining whether or not a State is entitled to

immunity from the jurisdiction of another State’s courts in respect of a particular act, it has to

be applied before that jurisdiction can be exercised, whereas the legality or illegality of the

act is something which can be determined only in the exercise of that jurisdiction…” .

Due to this German can’t enjoy sovereign immunity before foreign courts for acts committed

by its armed forces.

The counsel further argues that that Germany is not entitled to immunity because of the: (1)

“territorial tort principle” (see below) and (2) fact that the rules that were violated were of

jus cogens nature and, if Germany was to succeed in its claim of immunity, no alternative

means of redress is available.

Territorial Tort Principle

India argues that under customary international law Germany was not entitled to immunity

for acts causing death, personal injury or damage to property in the territory of the forum

State (in this case India) – even if the acts in question falls within jus imperii.

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The Jus Cogens Nature of the Crime

India further argues that Germany is not entitled to immunity because: (1) crimes against

humanity – i.e. serious violations of IHL; (2) these rules of international law were peremptory

norms (jus cogens); and, therefore, the exercise of jurisdiction by India court is necessary ;

and it is also argued that India courts could deny Germany immunity because of the

combined effect of all three arguments.

Denial of immunity on the basis that Acts amount to war crimes and crimes against

humanity

India argues that international law does not give immunity to a State, or at least restricts its

right to immunity, when that State has committed serious violations of IHL.

Denial of Immunity on Basis that Indian Courts were the Last Resort

India argues that in giving reparations to Indian victims entitled the Indian courts deprives

German armed man of sovereign immunity.

In addition national courts have to determine questions of immunity at the outset of the

proceedings, before consideration of the merits. Immunity cannot, therefore, be made

dependent upon the outcome of a balancing exercise of the specific circumstances of each

case to be conducted by the national court before which immunity is claimed. The third and

final strand of the Italian argument is that the Italian courts were justified in denying

Germany the immunity to which it would otherwise have been entitled, because all other

attempts to secure compensation for the various groups of victims involved in the Italian

proceedings had failed.

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, this

Arbitral Tribunal may graciously be pleased to adjudge and declare that:

1.The petition is not maintainable in this Tribunal.

2. The Indian court have power to try the case.

3.The German VPA aren’t entitled to sovereign immunity.

AND / OR

Any other just and equitable order as it deems fit in the interest of equity, justice and
good conscience.

All of which is most humbly and respectfully submitted.

PLACE – S/d_____________________________
DATE-
COUNSEL FOR THE PETITIONER

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