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  • Nalinaksha Singh and Ridhima Bharadwaj

Diving Into The Enrica Lexie Case (Italy V. India): A Critical Analysis Of The Recent Award

This article has been authored by Nalinaksha Singh and Ridhima Bharadwaj, third-year students atRajiv Gandhi National University of Law, Punjab pursuing the B.A., LL.B. (Hons.) course.


Introduction:


India and Italy have enjoyed cordial relations for decades. However, the Enrica Lexie case[i] put a heavy strain on the relationship between the two countries. The dispute began in 2012 and has recently been put to rest with a landmark judgement by the Permanent Court of Arbitration (hereinafter PCA) through an Arbitral Award. The PCA established the Tribunal for the purpose of inter-state arbitration proceedings between the two nations, therefore, the Arbitral Award is enforceable, final and binding.


This article will analyse in detail the brief facts of the event that occurred on 15th February 2012, the legal arguments from both States regarding the immunity of the marines and jurisdiction for the case, as well as the ruling provided by the PCA.


Facts of the Case:


On 15 February 2012, around 20.5 nautical miles off the Indian coast and within the Indian Exclusive Economic Zone (hereinafter EEZ), an oil tanker with the Italian flag named “Enrica Lexie” was present. The issue at hand concerns two Italian Navy officials, aboard the Enrica Lexie on official duty, who fired and killed two Indian fishermen aboard an Indian fishing vessel named the “St. Antony”, seemingly mistaking them for pirates functioning close to the Kerala Coast. After reaching the Kochi port (3 hours later), the Italian marines namely, Massimiliano Latorre and Salvatore Girone were arrested and charged with murder under Section 302[ii] of the Indian Penal Code, 1860 (hereinafter IPC).[iii] The marines were detained in India (without formal charges) for four and two years respectively.


Legal History:


To proceed with the prosecution of the marines, India had already established a specifically designated court, as per the orders of the Supreme Court, to decide upon the matter of application of jurisdiction. India’s National Investigation Agency (NIA), had already charged the two Italian marines with murder, attempt to murder, mischief and common intent under the IPC.


Taking reference from Annex VII (process for ad-hoc arbitration) of the United Nations Convention on the Law of the Sea,[iv] 1982 (hereinafter UNCLOS), Italy took India to the International Tribunal for the Law of the Sea (hereinafter ITLOS) in 2015 to appeal for the two marines to return to their own country as the trial procedure continues.


In its decision on 24 August 2015, the ITLOS ordered suspension of all domestic suits and trials in both the countries associated with the Enrica Lexie matter and directed them against taking any action that “might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render”.[v] Consequently, a specifically assigned Arbitral Tribunal was established with five members on 6 November 2015.[vi]


Core Legal Considerations:


The case at hand discusses the very vital issue of jurisdiction over vessels on the high seas. The dispute between the parties arose as a result of Italy’s claims of exclusive jurisdiction as flag State and demand of functional immunity for its naval officials since they had acted to preserve Italian interests when the incident occurred. India, on the other hand, maintained that the issue is concerned with the killing of the two innocent fishermen and demanded jurisdiction of the case as the flag State of the St Antony.


Jurisdiction:


In the principal issue of the dispute, India argued for jurisdiction over the case on the basis of its domestic legislations that grant its courts the power to initiate penal prosecution against a person (including a foreigner) for a crime committed on any ship registered in India, wherever it may be (Sections 3[vii]and 4[viii]of IPC and Section 188[ix]of the Code of Criminal Procedure, 1908).


In contrast, the government of Italy argued with reference to the UNCLOS. For instance, Article 97[x] of UNCLOS which gives sole jurisdiction over penal/ disciplinary proceedings to the flag State. Further, Italy claimed that India had breached numerous key provisions, particularly Article 97(1)[xi] by initiating criminal prosecution against the Italian marines and Article 97(3)[xii] by intercepting the Italian oil tanker between February and May 2012, and probing those aboard. Additionally, Italy made a plea under Article 92[xiii] which grants exclusive jurisdiction to flag States over their ships while on the high seas.


Killing of the Fishermen and Immunity of the Marines:


Throughout the bilateral discussions between the party countries, the major concerns that arose were regarding immunity for the Italian marines from Indian criminal prosecution. As Italy tried to establish the immunity of the two marines, India was staunch on the two being prosecuted under its domestic criminal laws.


Italy requested the arbitral tribunal to adjudge that India was in breach of its duty to respect the functional immunity of the marines as Italian State officers performing official functions by proclaiming and continuing prosecution under domestic criminal laws. This action would constitute a violation of the UNCLOS under Articles 2(3)[xiv], 56(2)[xv], 58(2)[xvi] and 100.[xvii]


​In response to the submissions made by Italy, India in turn pointed out the violations of the former by shooting at the St Antony and killing two Indian fishermen. India’s argument was based on the reasoning that even if the immunity of the marines were to be accepted, the immunity exception of “territorial tort” would fit on this matter since the alleged crime was “committed against Indian nationals, on an Indian flagged boat, which is assimilated to India’s territory for the application of criminal law, and the marines have been found on India’s territory”.[xviii] India further went on to claim that Italy had infringed it’s sovereign rights under Article 56[xix], and violated its duty to have due regard for India’s rights (as the coastal State) over its EEZ as per Article 58(3)[xx] of the UNCLOS.


Navigation:


The next key contention revolved around the issue of navigation. Italy argued that by guiding the Italian oil tanker to move into India’s territorial waters, India had infringed Italy’s freedom of navigation guaranteed Article 87(1) (a)[xxi] of the convention and its duty to seek Italy’s cooperation in the repression of piracy, violating Article 300[xxii] read with Article 100[xxiii]. Further, India had infringed Italy’s right to exclusive jurisdiction over its ship, protected by Article 92.[xxiv]


In response, India claimed that Italy had breached India’s freedom and right to navigation guaranteed Articles 87[xxv] and 90[xxvi]. Further, Italy had also breached India’s right to reserve its high seas for peaceful purposes under Article 88[xxvii] of the UNCLOS.

The Judgement


The highly awaited Arbitral Award came on 2 July 2020 and dealt with the various issues raised before the five-bench Arbitral Tribunal (hereinafter AT) by both parties.


Firstly, on the matter of jurisdiction, the bench decided that the AT possesses jurisdiction over the dispute. This was in response to the detailed objections by India to its jurisdiction on the case. It was also decided that the AT holds jurisdiction to deliberate upon the matter of the immunity of the Marines. Thus, none of the pleas India levied against Italy regarding jurisdiction and rights of a coastal State over its EEZ were accepted by the AT.


Secondly, with respect to the immunity of the Italian marines, the AT decided by three votes in favour that, “Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines”.[xxviii] Moreover, it declared that India is required to cease its criminal prosecution against the marines.


Thirdly, for the issue of navigation, the AT unanimously decided that the conduct of the Italian marines and, thus, Italy had infringed India’s freedom of navigation as per Articles 87(1) (a)[xxix]and 90[xxx]of the UNCLOS. Further, it was stated that India did not commit any act which could violate any provisions of the convention with regards to freedom of navigation on the high seas, status of ships, penal jurisdiction in matters of dispute, and cooperation for repression of piracy.[xxxi]


Lastly, the AT held that India’s case qualifies for compensation regarding loss of life, physical harm, material damage to property involving the St. Antony as well as any moral injury to which the captain and other crew members of the vessel were subjected to, which cannot be compensated through restitution.[xxxii] The amount of this compensation would be mutually decided by both parties.


Critical Analysis:


The core issues of the Enrica Lexie case, i.e. the question of jurisdiction over the case and immunity of the Italian officials from Indian criminal jurisdiction, are intertwined with one another. While deciding on the issues at hand, the tribunal took into consideration a number of principles of international law.


The immunity of the two marines was based on the basic principle of customary international law that grants ratione materiae i.e. functional immunity of State officials (regardless of the position they hold in the power hierarchy of the State, and also incorporates armed forces’ members on official duty) from foreign criminal jurisdiction pertaining to the acts they perform in an official capacity. The basis for this decision was that, according to the AT, “the marines are State officials who were acting in their official capacity during the incident”.


Therefore, the tribunal determined that irrespective of the fact that the acts of the marines were illegal, the evidence demonstrated that when the episode occurred, the officials were subjected to a fear of a piracy risk and thus, exercised their official functions as members of the Italian Navy and of a VPD (Vessel Protection Detachment), and were not on Indian territory when they committed the acts at issue.[xxxiii]


These conclusions made by the tribunal are inconsistent because they fail to clearly distinguish the alternative possibility that the marines were capable of committing an act, even if they were aboard the Enrica Lexie, outcomes of which could be experienced in Indian territory without its consent. Simultaneously, if the AT is so certain of the fact that ships cannot be integrated with the national territory of the flag State, then the Enrica Lexie cannot be integrated with Italian territory, thus, nullifying the marines’ immunity. Furthermore, even if the marines are considered State officials, they were deployed in a commercial vessel and therefore, cannot be accorded with State immunity from local penal jurisdiction.


The decision made by the AT is vulnerable and stands on shaky grounds. This is highlighted by the dissent offered by two justices on the tribunal. Dr P.S. Rao, a member of the bench, stated in his dissent: “I entirely disagree with its (AT’s) finding that the marines are entitled to immunity from Indian jurisdiction, even when they were on a commercial (cargo) vessel, under private ownership, whereas immunity under general international law is reserved in respect of a ship used only on government non-commercial service”.[xxxiv] Similarly, Judge Robinson also clarified in his opposition that,[xxxv] for the marines to be granted immunity, Italy must establish that while serving on the ship, they persisted as employees of the government and not of the ship-owners. Further, he states that since there is no specific agreement for granting immunity to officials of a foreign State between the two parties, the marines are not entitled to State immunity.


The immunity granted to the marines and their subsequent protection from criminal prosecution in India for the killing of two innocent fishermen, is contentious to say the least.[xxxvi]


Conclusion: The Way Forward


As good international citizens, both nations must comply with the tribunal’s award and work in full co-operation on the matter from now on. From Italy’s perspective, the award is a win. All through the dispute, it wanted to ensure its marines were tried for their offence in Italy, and not India- this has been achieved. Italy will now continue its domestic proceedings against the two marines, although actual conviction of the officials by any Italian court is a rare possibility. For India, the judgement is a disappointing loss and marks an end for all hopes of justice for the two fishermen. The only satisfaction for New Delhi is the compensation Rome must pay for violating two provisions of the UNCLOS. Now, India must make certain that Italy pays fully for the loss of life and suffering in this matter. Further, India must ensure Italy makes good on its promise of trying the two marines in a fair manner under its domestic laws and the Indian government must show no laxity in securing justice for its fallen citizens- even in a foreign court. Any consideration regarding trade or relations with the European Union (which has stood beside Italy through the entire trial), must be put aside.[xxxvii]


Resolving the sour relations between Italy and India is a long road but it begins with both nations honouring their ends of the recent judgement.



Endnotes:


[i] Enrica Lexie (Italy v. India), PCA Case Repository, 2015-28 (Hereinafter PCA).


[ii] Indian Penal Code, No. 45 of 1860, § 302, Pen. Code (2020) (Hereinafter IPC).


[iii] PCA, supra note 1.


[iv] United Nations Convention on the Law of the Sea, annex. VII, Dec. 10, 1982, 1833 U.N.T.S. 397 (Hereinafter UNCLOS).



[vi] Devirupa Mitra, Enrica Lexie: In Setback for India, Tribunal Says Country's Courts Can't Try Italian Marines, The Wire (July 3, 2020), https://thewire.in/external-affairs/enrica-lexie-arbitral-tribunal-italian-marines (Hereinafter Mitra).


[vii] IPC, supra note 2, § 3.


[viii] IPC, supra note 2, § 4.


[ix] Code of Criminal Procedure, No. 2 of 1974, § 188, Code Crim. Proc. (2020).


[x] UNCLOS, supra note 4, art. 97.


[xi] UNCLOS, supra note 4, art. 97(1).


[xii] UNCLOS, supra note 4, art. 97(3).


[xiii] UNCLOS, supra note 4, art. 92.


[xiv] UNCLOS, supra note 4, art. 2(3).


[xv] UNCLOS, supra note 4, art. 56(2).


[xvi] UNCLOS, supra note 4, art. 58(2).


[xvii] UNCLOS, supra note 4, art. 100.


[xviii] V. Venkatesan, Enrica Lexie: Did India Lose Case Against Italy Because of Lapses By its Own Supreme Court?, The Wire (July 5, 2020), https://thewire.in/law/enrica-lexie-india-case-arbitral-tribunal-dissents-supreme-court (Hereinafter Venkatesan).


[xix] UNCLOS, supra note 4, art. 56.


[xx] UNCLOS, supra note 4, art. 58(3).


[xxi] UNCLOS, supra note 4, art. 87(1)(a).


[xxii] UNCLOS, supra note 4, art. 300.


[xxiii] UNCLOS, supra note 4, art. 100.


[xxiv] UNCLOS, supra note 4, art. 92.


[xxv] UNCLOS, supra note 4, art. 87.


[xxvi] UNCLOS, supra note 4, art. 90.


[xxvii] UNCLOS, supra note 4, art. 88.


[xxviii] PCA, supra note 1.


[xxix] UNCLOS, supra note 4, art. 87(1)(a).


[xxx] UNCLOS, supra note 4, art. 90.


[xxxi] Mitra, supra note 6.


[xxxii] PCA, supra note 1.


[xxxiii] Venkatesan, supra note 18.


[xxxiv] Venkatesan, supra note 18.


[xxxv] Venkatesan, supra note 18.


[xxxvi]Vivek Katju, India must not cast anchor in ‘Enrica Lexie’, The Hindu (July 6, 2020), https://www.thehindu.com/opinion/lead/india-must-not-cast-anchor-in-enrica-lexie/article31996616.ece.


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