March 24, 2019
Introduction
This analytical note investigates the recent orders in the Enrica Lexie case (The Republic of Italy v. The Republic of India) for provisional measures delivered by, both, the International Tribunal for the Law of Seas (ITLOS) and subsequently the Permanent Court of Arbitration (PCA Tribunal) – constituted under Article 290 of the United Nations Convention on the Law of the Seas (hereinafter referred to as “UNCLOS”).[1]
In pursuance of convenience and brevity, the note has been demarcated into five segments. The first segment shall continue with introduction of ‘the incident’ and significance of the case. It shall also elucidate the main issues of the case. The second part is devoted towards an explanation of the facts of the case, hand-in-hand with the geographical context of the incident and the relevance of certain UNCLOS provisions which are crucial to the case. The third section shall be dealing with the jurisdictional and territorial conflicts raised in both high court and supreme court of India and the fourth section will deal with marines’ plea seeking prosecution immunity which used by the Italians as their defence. The final segment shall conclude the case.
The Enrica Lexie case pertains to an incident twenty-point-five nautical miles (hereinafter “NM”) west of the coast of Kerala, India where two Indian fishermen were shot dead by Italian Marines aboard the M/V Enrica Lexie – a privately owned Italian oil tanker. Albeit the pendency of the final orders and judgements, the case has made its’ mark in the International Legal community – with many comparisons being drawn to the landmark ‘SS Lotus Case’[2] in terms of its’ significance with respect to issues pertaining to ‘territorial jurisdiction at sea’ and ‘immunity’ – also subsequently shedding light on the legislation, or rather lack of it, on the aforementioned issues.
Moreover, in light of the highly political undertones to the case, the dispute has had overwhelming diplomatic ramifications between the two States – India and Italy. This was evidenced by the growing concern among international actors including the European Parliament[3] and the United Nations Secretary-General[4] for the dispute to be resolved on a time-sensitive basis.
Issues
Subsequent to the provisional measures of the ITLOS[5], the onus of coming to a decision as amicable as possible lies upon the ad hoc tribunal constituted at the Permanent Court of Arbitration (PCA) who have identified the following as the central contentious points in this case:
- Whether an International Tribunal had jurisdiction to decide this case in lieu of the extenuating circumstances.
- Whether the Italian Republic’s request for emergency interim relief in the form of provisional measures was legally maintainable and permissible.
- Who had the jurisdiction to try, if at all, the Italian Marines aboard the Enrica Lexie?
- Whether there are any merits in the marines’ plea seeking immunity from prosecution, especially in Indian jurisdictions.
Facts
A. The Incident
On 15th February 2012, at approximately 16:30 hrs, Indian fishing vessel the St. Antony encountered Italian oil tanker – M/V Enrica Lexie about 20.5 NM from the coast of Kerala, India. The latter at the time of the incident had on board a Vessel Protection Department[6] in lieu an International Maritime Organisation (IMO) declaration citing the said waters to be a high-risk area for piracy.[7] Having spotted the St. Antony from a distance of around 3 NM and “assessed that it was on collision course with the Enrica Lexie and that this modus operandi was consistent with a pirate attack”, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone fired twenty shots at the St. Antony, damaging the boat and killing two of the four allegedly asleep fishermen. The Marine Coast Guard and Maritime Rescue Coordination Centre of Mumbai (MRCC) were alerted shortly and upon identifying the Enrica Lexie as a ‘vessel of interest’, instructed it to make its’ way towards the Kochi port. On 19th February, when the autopsies confirmed that the fishermen had succumbed to their deaths due to the bullets fired by the marines, the Kerala Police arrested them under sections 302, 307, 427 read with 34 of the Indian Penal Code[8] coupled with section 3 of the Suppression of Unlawful Activities Act.[9]
B. The Geographical Context of the Incident and the Relevance of the UNCLOS
The incident occurred 20.5 NM from the coast of Kerala, India which according to the Kerala Police’s FIR is within the definition of “contiguous zone”[10] since India additionally extends its’ territorial waters by 12 NM (although not recognised by the UNCLOS), citing ‘national security’ for the same. Moreover, the incident took place within the 200 NM Indian Exclusive Economic Zone (EEZ) as stipulated.[11]
Article 97 of the UNCLOS pertaining to the ‘penal jurisdiction in matters of collision or any other incident of navigation’ was invoked by Italy with regards to the stripping of Indian jurisdiction over the marines since the provisions explicitly state that:
“1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master’s certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.” [12]
In their written submission at the ITLOS, India however, was quick to point out that there was in fact “no collision” or “incident of navigation” between the two vessels – and even if a case would be made on these grounds, it would be that concerning the St. Antony and its’ crew and not vice-versa. Moreover, whilst ratifying the UNCLOS on 29 June 1995, India made an interpretive declaration that the provisions in the convention didn’t authorise other States to carry out military exercises, especially those involving the use of weapons or explosives in the ‘exclusive economic zone’ or the ‘continental shelf’ without their permission.[13]
Jurisdictional and Territorial Conflicts
Based on the Kerala police department’s investigatory reports, the Kerala High Court was moved initially. After failing in a primary suit challenging the jurisdiction of the Kerala High Court, the Italian contingent approached the Indian Supreme Court by virtue of a writ petition. Whilst the case was pending in the Supreme Court, the Italian contingent filed their pleadings before the United Nation ITLOS. Failing an amicable solution between the States, who at this point were referring to highly partisan factual submissions. Subsequent provisional measure decreed by the ITLOS culminated in the formation of a separate arbitration Tribunal at the Permanent Court of Arbitration, (PCA) under Annex VII of the UNCLOS.
A. Issues of Jurisdiction Before the High Court of Kerala
Throughout the case, Italy has raised the argument that Indian courts lack jurisdiction try the Italian marines as the offence was committed in international waters, and thus will fall under Article 97(1) of the UNCLOS[14] which stated that the flag state exclusively has the jurisdiction to try the case. Another argument which Italy relied on was the fact that the offence had taken place in Exclusive Economic Zone which was beyond the territorial waters of India and as per the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, the sovereignty of the Indian state is till 12 nautical miles from baseline.
Even the applicability of the Indian Penal Code was discussed with respect to section 4 of the Act that deals with extraterritorial offences. Italy contended that section 4 is restricted till the territory of India and not beyond that and any extraterritorial act of crime applies only to Indian citizens and thus does not include the abovementioned Italian marines and thus submitted that all the proceedings against the marines was void ab intio for the want of jurisdiction.
The court dealt with following contention by relying on “objective territoriality principle” according to which since the effect of the crime was on an Indian vessel and thus should be regarded as Indian territory. A central government notification was also submitted which extended the application of Indian criminal law to Exclusive Economic Zone. India also argued that they had absolute jurisdiction over the crime committed by the marines and pleaded that Article 97 of UNCLOS will not be applicable as it was a case of homicide and not an incident related to navigation. They relied on Article 27(1)(a) of UNCLOS which allows coastal states to exercise criminal jurisdiction when the “ consequences of the crime extend to the coastal state.”[15]
The High Court of Kerala based its decision on Sections 3 and 4 of the IPC and the notification of the central government extending India’s jurisdiction. They also relied on international law principles like “objective territoriality” and “passive nationality” to find its jurisdiction.
B. Ruling of The Supreme Court Regarding Jurisdictional Issue
The arguments submitted before the supreme court regarding jurisdiction were almost similar to the submissions in High Court of Kerala for both sides.
The Supreme Court decision concentrated on:
- Whether the Kerala Police had the jurisdiction to investigate the said incident,
- The compatibility of UNCLOS with the Maritime Zones Act of 1976, and
- The relevance of Article 97 of UNCLOS to the said incident
The Apex Court observed that the incident had taken place outside the territorial waters of the coast line of Kerala but it was in the Contiguous Zone. The Kerala Police in normal usually has no jurisdiction over offences committed in Contiguous Zone and this case was held to be of no difference. The court ruled that:
“The State of Kerala had no jurisdiction over the contiguous zone and even if the provisions of the Indian Penal Code and the Code of Criminal Procedure Code were extended to the contiguous zone, it did not vest the state of Kerala with the powers to investigate, and thereafter to try the offence. What, in effect, is the result of such extension is that the Union of India extended the application of the Indian Penal Code and the Code of Criminal procedure to the Contiguous Zone, which entitled the Union of India to take cognizance of, investigate and prosecute persons who commit any infraction of the domestic laws within the Contiguous zone. However, such power is not vested with the State of Kerala.”[16]
With regard to the second issue the court held that the provisions of UNCLOS and the Act of 1976 are in harmony with each other and that India has every right under domestic and international law to exercise right of sovereignty till 24 NM and since the incident occurred in EEZ, Union of India has the right to prosecute the marines in the criminal justice system of India. The court also interpreted article 97 of the UNCLOS to not include and criminal act. In the judgment, the Supreme Court has made it very clear that the decision taken relates only to the question of jurisdiction.
C. Italy’s Claim for Exclusive Jurisdiction
Italy, being the flag state, at the ITLOS has tried to claim exclusive jurisdiction of the matter under Article 97. However, Article 97 includes crimes committed in the high seas only. High seas by definition means, international waters which are not the part of country’s water and everything after the EEZ. Here as established before the incident happened in the EEZ and thus not in high seas and therefore Italy cannot have the exclusive jurisdiction of the matter but as mentioned above, the coastal state has no right to prosecute an incident happened in the contiguous zone.
Defence of Immunity
While the ongoing dispute between Italy and India with respect to whether India can try the two Italian Marines or not, Italy claimed two types of immunities for Chief Master Sergeant Latorre and Sergeant Girone. These were Personal and Functional Immunities.
The Military Protection Detachment is the structured military force of the Republic of Italy and has been tasked with the duty of protecting its National Merchant vessels by providing trained military personnel under military discipline, command and control. This protection is sought against the threat posed by piracy and armed robberies in high seas. The United Nations Security Council has recognized this as a threat to international peace and security and it is now a known fact that many countries alongside Italy use Military Protection Detachments for protection from such threats.
A. Personal Immunity
On the International front, there are certain state officials who by nature of their duties are conferred upon with certain immunities. ‘Personal immunity’ or ‘Immunity Ratione Personae’ is described as the immunity provided to persons who occupy a specific official position and remains conferred upon them only till they continue to hold the office. International law recognizes Heads of States, Diplomats appointed by a foreign state, other government officials by way of treaties and conventions as possessing such immunity.[17] Thus, an implication would be that these marines should possess this immunity as they are the members of the military of Italy and were discharging their official functions. This was Italy’s claim to help its marines escape prosecution in India as they repeatedly described them as ‘state officials’ multiple times during the proceedings. However, it is important to note that according to the United Nations Convention on the Law of the Sea (UNCLOS), immunity from jurisdiction of any state other than the flag state is given to warships and government ships exercising public functions.[18]
The Enrica Lexie can neither be considered as a warship nor as a state-owned ship as it is owned by a private company “Fratelli D’Amato SpA.” It is exercising a commercial function as it is an oil tanker and the UNCLOS precludes it from being classified as a warship or government ship exercising official functions and disqualifies it from obtaining immunity.[19] Additionally, India has not set forth any Status of Forces Agreement (SOFA) with Italy or the European Union which would under normal circumstances grant immunity to foreign military officials.
B. Functional Immunity
Functional immunity is better known as conduct-based immunity as it attaches itself to the official act and not the status of the individual occupying an official post. Therefore, state officials would be immune from the jurisdiction of other states with respect to the actions performed by them in their official capacity.[20]
The International Court of Justice has also clarified that the personal conduct of an individual has to be differentiated from the official conduct and that functional immunity cannot be related to personal conduct.
The immunity of the marines would thus be dependent on their conduct as state officials and would have qualified for this immunity if they would have served in a counter-piracy mission in a high-risk area. However, it can be seen that the conduct of the marines does not allow them to seek cover under this immunity as they violated the International Maritime Organization’s Best Management Practices with respect to their response to the incident and their usage of force. They opened fire directly at the fishing boat killing two fishermen and sent distress signals of a piracy attack which was clearly not the case as piracy is exclusively referred to as a crime on high seas.
The only valid assumption would be to consider the Military Protection Detachment as legal equivalents to privately contracted personnel if they were not acting under a UN Mandate or not actively engaged in an anti-piracy mission and operating on a private vessel with clear commercial purposes.
Conclusion
Since the dispute is still going on, the issues regarding jurisdiction and immunity still remain wide open to many potentials. The tribunal will decide on which country will have the jurisdiction to try the marines. Whatever be the outcome of the case, this decision in all its probability would turn out to be a landmark decision for the scope of extraterritorial jurisdiction and the future of international law.
[1] Article 290 of the United Nations Convention on the International Law of the Seas.
[2] France v. Turkey (SS Lotus Case) 1927 PCIJ, Ser. A, No. 10.
[3] European Parliament Resolution of 15 January 2015 in two Italian ‘Maró’ [2015/2512 (RSP].
[4] The New Indian Express (2015), ‘UN Wants no role in Italian Marines’ published 6 January 2015.
[5] The ‘Enrica Lexie’ Incident (Italy v. India), Provisional Measures ITLOS Case No. 24, Order of 24 August 2015 at para 132.
[6] Vessel Protection Detachment are privately hired military forces employed to protect non-military ships against possible piracy attacks. In Italy, they were authorized under art. 5 of Decreto Legge 12 Luglio 2011, n. 11.
[7] International Maritime Organization, ‘Reports on Acts of Piracy and Armed Robbery Against Ships’, January 2012.
[8] Sections 302, 307, 427 of the Indian Penal Code of 1860.
[9] Section 3 of the Suppression of Unlawful Activities Act of 2002.
[10] Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act of 1976.
[11] Valeria Eboli, Jean Paul Pierini, ‘The “Enrica Lexie case” and the limits of the extraterritorial jurisdiction of India’, Centro di documentazione europea – Università di Catania 2012/n. 39 Marzo 2012.
[12] Article 97 of the United Nations Convention on the Law of the Seas.
[13]The UNCLOS Declarations <https://www.un.org/depts/los/convention_agreements/convention_declara tions.htm>
[14] Article 97-Penal jurisdiction in matters of collision or any other incident of navigation
(1). In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship,
no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
[15] Article 27-Criminal jurisdiction on board a foreign ship
(1)The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:
(a) if the consequences of the crime extend to the coastal State;
[16] 2013 (4) SCC 721, Para 84.
[17] https://academic.oup.com/ejil/article/21/4/815/418198
[18] Article 95 and 96, UNCLOS
[19] Article 95
Bhrigu A. Pamidighantam 
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