Analysis of Enrica Lexie Case & its implications on future Arbitration
The Supreme Court of India on Tuesday, 15 June 2021 passed an order under Article 142 of the Indian Constitution directing the immediate quashing of all criminal cases and open FIR’s (FIR 2/2012) with respect to the Italian Mariners shooting case known as the “Enrica Lexie case” (Massimiliano Latorre & Ors. v. Union of India)[1]. The dispute traces… Read More »
The Supreme Court of India on Tuesday, 15 June 2021 passed an order under Article 142 of the Indian Constitution directing the immediate quashing of all criminal cases and open FIR’s (FIR 2/2012) with respect to the Italian Mariners shooting case known as the “Enrica Lexie case” (Massimiliano Latorre & Ors. v. Union of India)[1].
The dispute traces its origin back to 2012 when the said incident of shooting had occurred and has since become a bone of international and diplomatic contention and dispute between the Republic of Italy and the Union of India. The latest Supreme Court order came after the application filed by the Central Government to quash the criminal proceeding pending before the Apex Court stating its intention to accept the conditions of the award given by the Permanent Court of Arbitration back in July 2020.
A Brief of the Facts
Enrica Lexie MV (Registered in Italy)[2] was an Italian oil tanker that was on its way from Singapore to Egypt. On the 15 February 2012, as MV Enrica Lexie was making its way through the Laccadive Sea some 20.5 nautical miles of the Indian coast when they were approached by an Indian fishing boat “St. Antony”. The marines on board sounded the alarm as a warning to move away, but as it was met with no reaction, the marines opened fire on the boat believing the vessel to be a Somali pirate ship.
Two Indians, Jelestein & Ajesh Binki were injured from the firing and succumbed to their injuries soon. MV Enrica Lexie was made to return to the coast of Kochi. The two marines, Massimiliano Latorre & Salvatore Girone were taken to judicial custody for interrogation and charged under 302 of the Indian Penal code on Murder.
The Legal Provisions at Play Before Various Indian Courts
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Contentions of counsel representing Italian Marines
The Police took the 2 marines into custody and charged them under sections 302, 307 and various other sections of the Indian Penal Code. The earliest contention raised by the counsel of Italian marines, Mr. Harish N. Salve and Mr. Sohail Dutta was on the question of jurisdiction, as per the arguments of the Italian counsel the said shooting took place in the Contiguous Zone/Exclusive Economic Zone of India and not in the territorial waters of India.
As per section 4 of the IPC, jurisdiction of the Indian courts does not extend beyond the territorial waters of India (12 nautical miles) and as such, the police station had no jurisdiction to file a FIR. For matters that extend beyond the territorial waters of India (CZ & EEZ), the courts can prosecute only Indian nationals and not foreigners.
The legal counsel also contended that, India being a signatory of the UNCLOS cannot initiate criminal proceedings as the incident occurred on high seas and as such, an Italian court had already opened the case back in Rome.
As per section 87 1(a) of the UNCLOS, every country had the freedom of navigation without interference of sovereign bodies. The Counsel also held that the marines were on official employment of their home state trying to provide protection and security to their country’s interests especially in a very volatile and troubled part of the sea (Piracy activities) & as such and as per the conventions of international laws, are eligible to immunity.
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Contentions of Counsel representing Indian Fishermen
The Indian counsel held that the said incident occurred 20.5 Nautical miles of the baseline of the Indian coast. Article 27 of the UNCLOS gives criminal jurisdiction to a coastal state on a foreign ship if a crime has been committed on the ship and its consequences extend to the coastal state. As such, there is no question of India’s jurisdiction in the said matter.
It was also held that the Indian fisher boat (St. Antony) was a good 100 metres away from the Ship and posed no threat to the Oil tanker. The respondents contended that Article 32 and Article 56 of UNCLOS was applicable as these laws provide for the maintenance of law and order by the coastal state (India) in the EEZ and would thereby give India the jurisdiction to try the accused Italian marines. In the instant case, the marines were security on-board a private oil tanker and thereby can only be considered as a “Private security team” not availing any immunity from India’s legal system.
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Decision of various courts of appeal
In “Massimiliano Latorre & Ors. v. Union of India[3]” the High Court of Kerala found the petitioner (The Marines) guilty and upheld the Indian courts’ territorial and criminal jurisdiction to try the case.
The petitioners’ appeal to the Supreme Court of India resulted in the Kerala HC’s decision being overturned on the grounds that while the IPC and CrPC give the Republic of India the authority to try the case, Kerala cannot, and the Union of India must, and thus the Supreme Court established a special court to look into the matter.
As a result of the appeal, the case is now known as The Republic of Italy. Union of India vs. Ambassador.[4]
International Arbitration & its Applicability
On June 26, 2015, the Republic of Italy filed a Dispute under Annexe VII of the United Nations Convention on the Law of the Sea (UNCLOS) with the Permanent Court of Arbitration in The Hague, and on July 21, 2015, the Italian Government sought provisional measures before the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany.
According to the ITLOS, India and Italy should stop all judicial proceedings in the case and, in conformity with the UNCLOS, refer the dispute to the Permanent Court of Arbitration. As a result, the case was brought before the PCA, and a tribunal was constituted to investigate the situation.
The proceedings began before the Tribunal at the PCA, the case being – The Italian Republic v. The Republic of India[5]. Both the countries argued of gross violation of various provisions UNCLOS.
Applicability
The incident is claimed to have occurred at a distance of roughly 20.5 nautical miles from the Indian coast, within India’s CZ and EZZ but outside its territorial waters. Any offence occurring in international waters can be prosecuted by the flag state that has jurisdiction, according to UNCLOS article 97 read with UNCLOS Article 58(2).
According to the Territorial Waters, Continental Shelf, Exclusive Economic Zone, and Other Maritime Zones Act, 1976 (“Maritime Zones Act 1976”), India’s sovereignty extends up to 12 nautical miles from the nearest point of the baseline, making these international waters where India can try crimes committed by Indian citizens rather than foreigners.
Section 4 of the Indian Penal Code states that an Indian court’s jurisdiction is limited to the “Territory of India,” which includes the country’s territorial waters. As a result, India’s criminal and judicial proceedings are completely illegal and void. The Indian authorities’ actions also breached UNCLOS articles 87 1(a), 89, 92, and 100.
In its final ruling, the Permanent Court of Arbitration maintained international law’s well-established objective territoriality premise. It was determined that the marines were employed by the Italian navy at the time of the incident, regardless of whether the tanker was a privately owned vessel. The marines were performing their duties as a “Vessel Protection Detachment” (VPD), and as such, as state employees, only their employer/home state has the authority to prosecute them, regardless of India’s claim.
The PCA, in the form of a final award, requested that the Italian Republic pay compensation to the victims in the amount of Rs. 10 crore, and that India cease all judicial and criminal actions because the marines had sovereign immunity and all legal proceedings would be handled by Italy.
Conclusion
This Precedent can be a matter of debate. One argument can be, questioning the validity of the precedent as a bad law. The other side of the argument can be, upholding the validity of the precedent as good law.
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Has a dangerous & worrying Precedent been set?
The Central government made its position plain after the Permanent Court of Arbitration issued its verdict, informing the Supreme Court of its resolve to abide by the Permanent Court of Arbitration’s award and put the dispute to bed. In light of this, the Supreme Court issued an order, the closure of all ongoing and open criminal charges and FIRs connected to the situation. According to the Supreme Court, “the award given is fair and adequate.” While the situation has almost definitely been resolved, has it established a bad precedent?
From the start, it was evident that this was a case of random and unprovoked firing at poor fishermen who were fatigued after days of work and attempting to get home. The little fishing boat posed no threat to an oil tanker, and it never got close enough to the vessel to be dangerous. The Laccadive Sea was one of the safer locations within the broader Indian Ocean, with no reports of pirate activity. There was always a strong presence and patrol by Indian Naval authority in the area, keeping the zone very safe.
Under the pretence of piracy, a group of trigger-happy individuals took advantage of a chance to shoot at defenceless men. India surrendered our right to prosecute these men before a panel of foreign judges in a foreign court that has always espoused a European centric view despite the fact that they were shot and died within India’s jurisdiction of law and sovereignty. India’s sovereign rights have once again been eroded by international conventions and foreign treaties.
And this isn’t the first time that something like this has happened to Indian fishermen. According to a report given by the Tamil Nadu government to the Madurai bench of the Madras High Court, the Sri Lankan Navy killed 85 fishermen and injured 180 others in Indian waters between 1991 and 2011. Five trawlers carrying 30 Indian fishermen were seized by the Pakistan Maritime Security Agency (PMSA), and this is not a unique incidence. Pakistani police have detained 54 Indians on the basis that they have trespassed into Pakistani waters.
Such incidents of Indians being attacked even within our own territory have become all too regular in recent years. In these circumstances, India’s recognition of a foreign tribunal’s ruling creates a negative precedent. India’s willingness to compromise on its own sovereign rights & sovereignty to adhere to foreign conventions and tribunals is once again detrimental to India’s aspirations and may set a bad precedent in this regard.
The International Court of Justice defined sovereignty as a set of rights and attributes possessed by a state in its territory excluding any other state, as well as in its relations with other states, in the first-ever case of international dispute, the Corfu Channel case[6] between the United Kingdom and Albania. Sovereignty was defined as “the right to perform his functions within the state, excluding any other State” in reference to a particular area of the globe.[7]
The international agreements and rules that were followed while making the decision in the “Enrica Lexie case” also had the authority to ensure that a country’s sovereign rights and sovereignty were not violated. The most prominent example of this is the famous international dispute, “Nicaragua v. United States of America[8]” which was settled by the International Court of Justice in 1986.
In the instant case, the United States of America engaged in military violence against the Republic of Nicaragua under the guise of “collective self-defense,” believing that the Republic of Nicaragua was actively supporting rebel groups and causing instability in the region, and that as a result, the United States had the obligation to engage in military attacks within Nicaragua’s territory under the guise of “collective self-defense.”
The International Court of Justice ruled that the United States’ actions were a clear infringement of the Republic of Nicaragua’s sovereignty and sovereign rights, as well as a clear violation of fundamental principles of international law and conventions, as well as the provisions of the United Nations Charter. Furthermore, the ICJ held that the US was
“in breach of its legal obligations under customary international law not to use force against another state”, “not to intervene in its affairs”, “not to violate its sovereignty”, “not to interrupt peaceful maritime commerce”, and “in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956.”
While the details of this case differ from those of the Enrica Lexie, they both defend the same underlying idea: any form of violence by a foreign nation against another and its people within its territorial and jurisdictional bounds is illegal under international law.
The same international laws and treaties that were used to deliver this verdict, which appears to have infringed on India’s sovereignty, also had legal options to avoid that. All they had to do was look a little more closely.
The victims of the Enrica Lexie case may have won, as they are set to receive a sum of 4 crore rupees each, an amount that is so much higher than what the victim would have ever earned in their lifetimes, but is it worth it? It will never compensate the life that was lost in a senseless act of violence. India may have adhered to the foreign conventions, tribunals & International laws, but at the cost of its own Sovereign rights & Sovereignty. Is it worth it? These questions remain unanswered.
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Is the precedent upholding International law & customs?
International law has always been doubted as a true law or not. Many jurists, such as Austin and Hobbes, argue that International law is law, only after excluding domestic law from the preview. They state that domestic law, always supersede international law. However, in the new evolving era, where countries are complexly interdependent with each other and when the concept of sovereign has not remained unfettered and absolute, the importance of International law cannot be questioned.
International law has provided a pestle to the countries to come together and resolve their disputes, without resort to armed forces and power. In the 21st century, respecting and abiding to International law and its rules is a matter of crucial importance to world harmony and peace. Rather than fighting individual battles, International law provides for peaceful settlement of disputes.
In the leading case of Paquete Habana (1900)[9], Justice Grey remarked,
“International law is a part of our law and must be ascertained and administered by the courts of justice of appropriated jurisdiction as often as questions of rights depending upon it are duly presented for their determination.”
The case of Enrica Lexie, has set an example along with other such landmark judgments, which upheld the rules Of International law, over encroached domestic jurisdiction. In this case, the major point of the question was not in relation to, whether the actions of Italian marines wrong or not? The major question was, which country’s court has the jurisdiction to decide whether their actions were wrong or not?
One such case, which upheld the validity of International rules is the case of Portugal v. India, 1954[10], in a petition by Portugal that it has the right of passage in the two enclaves of India, in accordance to a treaty sign by the two countries. India contested this right of Portugal, for the protection of its domestic territory. International Court of Justice held that India cannot act in breach of the international treaty between the two countries, and it has to provide a right of innocent passage to Portugal. However, the court also held that Portugal did not have the right to use this passage for its military purposes.
The Permanent Court of Arbitration’s decision was based on a UNCLOS clause to which both India and Italy are signatories, as well as Indian domestic law, which expressly prohibits domestic jurisdiction beyond Indian territory. As a result, UNCLOS’ application cannot be denied or contested. As the International Court of Justice (ICJ) concluded in the North Sea Continental Shelf cases (1969)[11], “a treaty is based on the assent of the parties to it, is enforceable, and must be executed in good faith.”
The customary international law, provides, “immunity ratione materiae from foreign criminal jurisdiction is accorded to State officials in respect of their “official acts” or “acts performed in an official capacity”. In the Enrica Lexie case, according to Articles 110 and 111, paragraph 1, subparagraph (a), of the Italian Military Code, the The “Navy is the operational component of the Military entrusted with the State’s maritime defence” and has unique competencies in “safeguarding and protecting national interests outside the territorial sea’s outer border, especially in the fight against piracy.”
The two Marines were on board the “Enrica Lexie” as part of a “Vessel Protection Detachment” VPD, and the Italian Law on VPDs is the precise legislation on which they were operating. The “Navy is the operational component of the Military entrusted with the State’s maritime defence” and has unique competences in “safeguarding and protecting national interests outside the territorial sea’s outer border, especially in the fight against piracy.”
The two Marines were on board the “Enrica Lexie” as part of a “Vessel Protection Detachment” VPD, and the Italian Law on VPDs is the precise legislation on which they were operating. Only on an emotional and sentimental premised of death of the two Indian fishermen, the law cannot and should not be overlooked. The wrong committed needs to be punished but through the appropriate procedure, as established by law. It is only right and legal, that the two Italian marines are prosecuted according to the Italian courts and their law.
The International Court of Justice ruled in Alabama claims case between the United States and the United Kingdom[12] during the American Civil War that “no local rule may be relied upon as a basis for violating international law.” This case established international law’s independence and an obligation to obey it.
As a result, the precedent set by the Enrica Lexie case is not a poor precedent; rather, it is a landmark decision confirming the validity and importance of international law principles and treaties.
Written By:
1. Divyanshi Maheshwari, University of Petroleum and Energy Studies
2. Nikhil Sebastian, St. Joseph’s College of Law
[1] WP(C).No. 4542 of 2012 (P)
[2] Maritime MMSI No.247232700 and IMO No.9489297
[3] WP(C).No. 4542 of 2012 (P)
[4] WP (CIVIL)NO.135 OF 2012
[5] PCA Case No. 2015-28
[6] 15 XII 49 – ICJ Reports 1949, P. 244; General list No. 1
[7]K. Gevorgyan, Concept of State Sovereignty: Modern Attitudes (YSU Press, Yerevan,2014)
[8] ICJ Reports 1986, P. 14; General list No. 70; 27 June 1986
[9] (1900) 175 UC 677
[10] I.C.J Rep. (1960), p.6.
[11] (1969), I.C.J Rep. 3; 63 A.J.I.L 591
[12] International Tribunal, 1944, p.5.
