Indian Journal of International Law (2016) 56(2):221–238

DOI 10.1007/s40901-017-0043-x

NOTE

The Enrica Lexie case at the permanent court

of arbitration: an analysis

Utpal Kumar Raha . K. D. Raju

Published online: 1 February 2017

 The Indian Society of International Law 2017

Abstract This note examines the recent orders for provisional measures delivered by,
both, the ITLOS and the PCA Arbitral Tribunal under Article 290 of the UNCLOS in
the Enrica Lexie case (Italy v India). Our study reveals that the notion of Article 290—
that the interests of both parties must be assured—has been complied with by the
innovative order of the PCA tribunal. Further, the analysis of the legal regime and
practices dealing with criminal jurisdiction under the UNCLOS supports the argument
that India might find it difficult to sustain its jurisdictional claim over the case. On the
issue of jurisdiction of persons in the UNCLOS vis-à-vis domestic legislations, the note
argues that clarifications and contributions are needed.

Keywords Interim order
Jurisdiction
Law of the Sea
The UNCLOS
Enrica Lexie

1 Background

International boundaries in land, sea, and/or space continue to be

controversial. No doubt, boundaries are needed to, inter alia, justify
state sovereignty, protect territorial borders and ensure smooth
passages. Recognising this, the nations of the world deliberated upon
the law relating to the seas. The deliberations from 1973 to 1982
resulted in the United Nations Convention on the Law of the Sea (the

Utpal Kumar Raha

Research Fellow, Indian Institute of Technology Kharagpur, Kharagpur, India
e-mail: utpalraha@gmail.com

K. D. Raju (&)
Associate Professor of International Law, Rajiv Gandhi School of Intellectual Property Law, Indian
Institute of Technology Kharagpur, Kharagpur, India
e-mail: rajukd@gmail.com

123
222 Utpal Kumar Raha, K. D. Raju

UNCLOS).1 The three UNCLOS conventions formulated substantive

laws with regard to territorial jurisdiction of states to the water in and
around their land, created mechanisms for the protection of these
waters, as also to give freedom to countries to access these waters so as
to aid trade, commerce, communication and passage. Nevertheless,
disputes with respect to international waters, sovereignty and jurisdic-
tion continue to arise despite demarcations. The Enrica Lexie dispute
between Italy and India is one such case.2 Alternatively known as the
Indian Fishermen’s case, the dispute drew a great deal of media attention
in 2012 given the blatant nature of the incident.3

1.1 Facts and issues

This note examines the recent orders for provisional measures delivered
by both the International Tribunal for the Law of the Sea (the ITLOS)
and the Arbitral Tribunal of the Permanent Court of Arbitration (the
PCA) following Annex VII and Article 290 of the UNCLOS in the Enrica
Lexie case.4 Further, an analysis of the legal regime and practices dealing
with criminal jurisdiction under the UNCLOS supports the argument
that India might not be able to sustain its jurisdictional claims.
On 15 February 2012, two fishermen were engaged in fishing
activities on an Indian fishing boat called St. Anthony at a distance of
about 20.5 nautical miles in the Arabian Sea, off the Indian coast at
Kollam, Kerala, on the southwest coast of India. At about 4.30 P.M.
(Indian Standard time) shots fired from the Italian vessel fatally injured
two fishermen which also damaged the boat. At that point, the fishing
boat was at a distance of about 200 m from the Italian vessel. While
Valentine Jelastine was shot on his head, Ajeesh Pink sustained gunshots
on his chest leading to the instant death of both the fishermen. With the
1
For one of the earliest accounts written while the UNCLOS negotiations were undwerway, see, P.S.
Rao, The Public Order of Ocean Resources: A Critique of Contemporary Approaches (MIT Press, Cambridge, 1975).
2
The dispute relating to the Enrica Lexie is also known as Indian Fishermen Case. See also The Republic of
the Philippines v. The People’s Republic of China, PCA Case No 2013-19, The South China Sea Arbitration Award
(12 July 2016).
3
See, VS Mani, It’s our boat, our court, The Hindu (New Delhi) 23 March 2013.
4
The ITLOS is a dispute settlement body established under the UNCLOS, 833 UNTS (1982) 396, for the
purpose of the settlement of the dispute which may be raised between the parties to the Law of the Sea
Convention in relation to the application and interpretation of the provisions of the UNCLOS. Article 287 of
the UNCLOS provides that the parties to the Convention are required to make a declaration about their
choice from among the dispute resolution bodies mentioned by the UNCLOS for the purpose of the
resolution of dispute. Though Italy had selected the ITLOS and the ICJ, India did not make any such
selection. In such a situation, Article 287 (5) prescribes in Annex VII for the constitution of the arbitration
panel for the resolution of the dispute. See also The Italian Republic v The Republic of India, PCA Case No.
2015-28, Award (3 May 2016) [132].

123
The Enrica Lexie case at the permanent court 223

combined efforts of the provincial coastal police, the Indian Coast

Guard, and the Maritime Rescue Coordination Centre (MRCC), the
captain of the Italian vessel was persuaded to bring the ship to the Kochi
Port.5 The damaged boat carrying the surviving fishermen was also
brought to the coastal police station. A police complaint was lodged and
the Kerala police commenced the investigation.
Thereafter, the Enrica Lexie case came up before a provincial local
court.6 The local magistrate took immediate cognisance of the matter
and criminal proceedings against the accused Italian marines thus
began. Later, before the Supreme Court of India, the parties to the
dispute, however, did not contradict two important facts. First, that the
incident took place at 20.5 nm from the baseline in an area which falls
within the Exclusive Economic Zone of India and second, that the
accused were employed with the Italian Navy.
Two questions of primary importance emerge: first, who has the
jurisdiction over the accused and second, whether the accused, as
members of the Italian Navy, are entitled to sovereign immunity under
international law. The Indian Supreme Court ultimately concluded that
a special court should decide the dispute.7 The special court, the Indian
Supreme Court said, should be constituted exclusively for this purpose
alone while keeping the issue of jurisdiction open for the consideration
of the special court. The special court was constituted in 2014 at Delhi.8
This court never commenced proceedings for unknown reasons.

1.2 India’s historical approach

Historically speaking, India has used a mix of negotiations and judicial

resolution of international disputes. As Hegde points out, in the early
days of its independence India tended to resolve issues relating to land
boundary and river water sharing among its neighbours through

5
See, Italian Vessel Erred in Judgment, The Hindu (Kochi), 18 February 2012.
\http://www.thehindu.com/news/national/italian-vessel-erred-in-judgment/article2904586.ece[ (last
updated 15 Nov 2016).
6
Republic of Italy thr. Ambassador and Ors. v Union of India & Ors. Writ Petition (Civil) No. 135 of 2012
(Republic of Italy v. Union of India).
7
The Special Courts Act, 1979 of India provides for the constitution of the Special Court to consider the
disputes involving people of high political or public office. The court should be constituted with the sitting
judge of the High Court under whose jurisdiction the Special Court has been constituted. The said judge
should be appointed with the consultation of the Chief Justice of the concerned High Court in consultation
with the Chief Justice of the Supreme Court of India.
8
Govt. of India, Ministry of Home Affairs, vide Notification No. 17011/27/2012-IS-IV.

123
224 Utpal Kumar Raha, K. D. Raju

bilateral negotiations.9 The Right of Passage case allowed India to

participate in the ICJ proceedings.10 Singh argues that the experiences of
India during the Right of Passage case led to the coupling of the political
and judicial sovereignty in India.11 Indeed, international adjudication
has had a bearing on state policies in Asia and elsewhere. Though India
had to contest in three other cases against Pakistan before the ICJ, later,
those cases got resolved through negotiations.12 That said, in the last
couple of years, by virtue of the Indus Treaty, 1960, India has agreed to
a third party dispute resolution with Pakistan even as India bilaterally
resolved its maritime boundary with Sri Lanka.13 On the basis of the
survey of Indian literature on international adjudication, Hegde notes
that scholars have used, both, ‘‘approach’’ and ‘‘attitude’’ to define the
position of India in relation to substantive and procedural international
law.14

2 Provisional measures under the UNCLOS

Italy claimed that the mariners were part of the Italian Navy and as
agents and officials of Italy, and as per international law, the rights of
the Italian Republic were involved in this incident. Accordingly, Italy
questioned India’s jurisdiction over its marines since the beginning of
the proceedings. Later, on 26 June 2015, Italy submitted the dispute to
the International Tribunal of the Law of the Sea (the ITLOS).15 Before
the ITLOS, Italy requested for the constitution of an arbitral tribunal for
the resolution of the dispute following Annex VII of the UNCLOS along
with a request for provisional measures pending the constitution of the

9
V.G. Hegde, India and international settlement of disputes, 56 Indian J Intl L (2016) 1–40.
10
Case Concerning Right of Passage over Indian Territory (Portugal v. India) Merits[1960] ICJ Rep 6.
11
See, Prabhakar Singh, India before and after the Right of Passage case, 5 Asian J Intl L (2015) 176.
12
Hegde, supra note 9, 26–33.
13
Hedge compares RP Anand, Compulsory Jurisdiction of the International Court of Justice (Vikas Publishing
House, New Delhi, 1961) 253 and Prabhakar Singh, Sino-Indian Attitudes to International Law: of Nations,
States and Colonial Hangovers, 3 Chinese J Comp L (2015) 348–374, to conclude that ‘The word ‘‘attitude’’ is a
broader term and does not entail or refer to any binding policy of a State. ‘‘Approach’’, on the other hand, is a
more formal term and seems to denote existence of a formal policy that exists within a State.’ Hegde, ibid, 3.
14
Hegde, supra note 9, 10.
15
See The Italian Republic v. The Republic of India, Notification under Article 287 and Annex VII, Article 1
of UNCLOS and Statement of Claim and Grounds on which it is based (Italy). \https://www.itlos.org/
fileadmin/itlos/documents/cases/case_no.24_prov_meas/Request/Notification_of_the_Italian_Republic_
r.pdf[ (last updated Nov. 15, 2016).

123
The Enrica Lexie case at the permanent court 225

arbitral panel.16 Italy again requested for provisional measures before

the PCA Panel constituted under Annex VII of the UNCLOS.
At the ITLOS, the first issue before the tribunal was whether the
parties to the dispute should refrain from taking or enforcing any
judicial or administrative measure relating to the dispute. And the
second issue was whether India should take all measures necessary to
lift the bail conditions for the accused.17 The grant of provisional
measures18 by the international courts and tribunals are not novel or
uncommon.19
Nevertheless, international courts have to exercise caution in the use
of its own powers.20 Article 41 of the Statute of the International Court
of Justice (the ICJ) provides for the initiation of provisional measures.
The ICJ Statute Article 41(1) says, ‘The Court shall have the power to
indicate, if it considers that circumstances so require, any provisional
measures which ought to be taken to preserve the respective rights of
either party.’21 As we can see, the power of the ICJ to decide on
provisional measures is discretionary. In the Northern Cameroon case the
ICJ said that to protect its ‘‘judicial integrity’’ it might not exercise its
jurisdiction in every case even if it found that it had jurisdiction.22 Later
on, a number of specialized international dispute settlement bodies
were created to facilitate peaceful settlement of international disputes.23
A leading scholar on international adjudication, Professor Anand has
noted that ‘the ITLOS can deal with the important classes of disputes
that probably could not go before the ICJ. Those important classes of

16
See, The Italian Republic v. The Republic of India, Request of the Italian Republic for the Prescription of
Provisional Measures under theUNCLOS, supra note 4, Article 290 [5]. \https://www.itlos.org/fileadmin/
itlos/documents/cases/case_no.24_prov_meas/Request/Request_of_the_Italian_Republic_r.pdf[ (last
updated 16 Nov 2016).
17
At this level of the dispute both the accused were granted bail and one of them was staying in Italy on
medical ground and another was staying in Delhi.
18
Provisional measures constitute an exceptional form of relief in the sense that they are not to be
ordered as a matter of course but only in those cases where such special measures are considered necessary
and appropriate.
19
Rudiger Wolfrum, Provisional Measures of the International Tribunal for the Law of the Sea, 37 Indian
J Intl L (1997) 422.
20
See, Malcolm Shaw, International Law, 5th edn (CUP, NY, 2005) 987–990. For an exhaustive historical
account of various international courts and tribunal, see, Prabhakar Singh, The Rough and Tumble of
International Courts and Tribunals, 55 Indian J Intl L (2015) 344–45.
21
Statute of the ICJ \http://www.icj-cij.org/documents/?p1=4&p2=2[.
22
Northern Cameroons (Cameroon v United Kingdom) Preliminary Objections [1963] ICJ Rep 15, 29,
discussed in Singh, supra note 20, 345.
23
RP Anand, Enhancing the Acceptability of Compulsory Procedures of International Dispute
Settlement, 5 Max Planck Yrbk UN L (2001) 2, 3.

123
226 Utpal Kumar Raha, K. D. Raju

disputes include the matter of provisional measures under Art 290(5) of

the UNCLOS.’24
The provisional measures regime under Art 290 of the UNCLOS
along with the Statute of the ITLOS and its Rules provide a more
comprehensive and clearer mandate than any other provisional
measures regime.25 Unlike other regimes, the UNCLOS provisional
measures regime prescribes binding measures for the preservation of
the respective rights of the parties to the dispute and to the overall
marine environment as well.26 According to Mensah, the court or the
tribunal under the law of the sea might exercise discretion to prescribe
appropriate measures for the preservation of the rights of the parties to
the dispute.27
The law of the sea provides for two types of provisional measures
under Art 290 of the UNCLOS.28 First, under Art 290(1), the court or
tribunal to which the dispute has been submitted may prescribe the
measures. Second, under Art 290(5), the ITLOS may prescribe for
measures to a dispute which would be decided by another body
constituted later. Under Art 290, the court or tribunal can grant
provisional measures for, both, the preservation of the rights of the
24
Ibid, 3.
25
Article 25 of the Statute of the ITLOS and Article 89 of the Rules of the ITLOS). See, Wolfrum, supra
note 19, 422–23.
26
Article 290 of the UNCLOS, supra note 4, provides that:
1. If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has
jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional
measures which it considers appropriate under the circumstances to preserve the respective rights of the
parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.
2. Provisional measures may be modified or revoked as soon as the circumstances justifying them have
changed or ceased to exist.
3. Provisional measures may be prescribed, modified or revoked under this article only at the request
of a party to the dispute and after the parties have been given an opportunity to be heard.
4. The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other
States Parties as it considers appropriate, of the prescription, modification or revocation of provisional
measures.
5. Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this
section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from
the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with
respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional
measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted
would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to
which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in
conformity with paragraphs 1 to 4.
6. The parties to the dispute shall comply promptly with any provisional measures prescribed under
this article.
27
Thomas A. Mensah, Provisional Measures in the International Tribunal for the Law of the Sea (ITLOS)
\https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_prov_meas/Volume_IV/
Annex_LA-11.pdf[ (last updated 19 Nov 2016).
28
Yoshifumi Tanaka, The International Law of the Sea (CUP, NY, 2012) 411–414.

123
The Enrica Lexie case at the permanent court 227

parties to the dispute and to protect the marine environment given the
court or tribunal satisfies three conditions. First, the tribunal should
have prima facie jurisdiction to decide the matter.29
However, as the Interhandel case states, Art 41 of the Statute of the
ICJ does not require prima facie jurisdiction for the grant of provisional
measures.30 Second, the prescription for provisional measures may be
made only if the parties to the dispute have made a request for such
measures. According to Art 41, the court may indicate measures proprio
motu. Lastly, there should be a clear and urgent basis to take measures
for the preservation of the rights of the parties.31 Indeed, the basis of the
provisional measures is to prevent irreparable loss and urgency, which is
implicit in all provisional measure regimes.32
As mentioned above, before the ITLOS, Italy invoked these
provisional measures under Art 290(5) of the UNCLOS. Under this
provision, on receiving such a request, the tribunal if satisfied that there
is a prima facie dispute, could assume jurisdiction to adjudicate the
dispute. If there is imminent risk to the rights of either party and
immediate measures are required to be taken to prevent harm, the
tribunal may prescribe for provisional measures.
In the submissions before the ITLOS, Italy argued that the incident
was an ‘incident of navigation’ and thus it attracted Art 97, UNCLOS.33
India, however, argued that the UNCLOS was silent about incidents
such as this.34 Nevertheless, the tribunal found that a dispute did exist
between the parties concerning the interpretation or application of the
provisions of the Convention.35 From the order of the tribunal, it
appears to have emphasised the fact that the continuous exercise of
India’s jurisdiction is against the rights of the accused and that the
situation demands immediate measures to prevent such harm.36 The
tribunal rightfully sought to prevent the infringement of the respective
rights of the parties. In view of its limitation in going into the merits of
29
In the case of provisional measures, under Art 290(5) the relevant prima facie jurisdiction is the
jurisdiction of the tribunal to be constituted later on.
30
ICJ, Interhandel Case (Preliminary Objections)\http://www.icj-cij.org/docket/files/34/2299.pdf[(last
updated 24 Nov 2016).
31
In case of Art 290(5) urgency is linked with the irreparable damage which may occur before the
constitution of the arbitral tribunal. Ibid.
32
Ibid.
33
Article 97 of the UNCLOS provides for exclusive criminal jurisdiction with the flag State for collision or
incident of navigation at High Sea. Article 97 is also applicable to the EEZ.
34
The ‘‘Enrica Lexie’’ Incident (No. 24), (Italy v. India) [24 August 2015] ITLOS Rep [41, 47 and 48].
35
As per Annex VII of UNCLOS. Ibid. [54].
36
Ibid, [98 & 99].

123
228 Utpal Kumar Raha, K. D. Raju

the dispute, at the said stage, the tribunal observed that the concern of
the respective rights of the parties must be duly preserved and as a
result, prohibited both parties from taking or enforcing any judicial or
administrative measure relating to the dispute.37
Meanwhile in India, the families of the victims were awaiting justice
even as the accused had been granted bail. Although the tribunal did
reaffirm that the upholding of human rights was of utmost importance
and was applicable to the law of the sea as well,38 it did not consider
prescribing provisional measures appropriate to the situation of the
accused as that would result in touching upon the merits of the
dispute.39
The ITLOS in Ireland v. United Kingdom, Provisional Measures had
observed that the tribunal’s determination of the provisional measures
required a summary assessment of the situation and the interests of
both the parties concerned.40 Besides, in Costa Rica v. Nicaragua,
Provisional Measures case, the ICJ had held that an urgent situation
causing potentially real and instant threat to the parties demanding
immediate restriction to avert such danger could merit a provisional
measure.41 Therefore, the tribunal was right in holding that the removal
of bail conditions of the accused would fail to preserve the rights of
either party to the dispute. Thereby, the suspension of court
proceedings before the Special Court in India (mentioned above)
undoubtedly upholds Art 290(5) of the UNCLOS.42

3 Arbitration tribunal award

On 6 November 2015, on Italy’s request, an arbitral tribunal under the

PCA was constituted under Annex VII of the UNCLOS.43 Italy again
moved the PCA with a request for provisional measures in accordance

37
Ibid, [114 & 141].
38
See also The M/V ‘‘Saiga’’ (No. 2) Case, (Saint Vincent and the Grenadines v Guinea) [1 July 1999]
ITLOS Rep. [33].
39
The ‘‘Enrica Lexie’’ Incident (No. 24), (Italy v. India) [24 August 2015] ITLOS Rep [132].
40
The Ireland v. United Kingdom, Provisional Measures, [3 December 2001] ITLOS Rep [64].
41
See, Request presented by Costa Rica for the Indication of new Provisional Measures, in, Certain
Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) \http://www.icj-cij.org/
docket/files/150/17772.pdf[.
42
The UNCLOS, supra note 4 [141].
43
See Arbitral Tribunal Constituted in Arbitration Convening the ‘‘Enrica Lexie’’ Incident, PCA Press Release (6
November 2015) \http://www.pcacases.com/web/sendAttach/1515[ (last updated 15 Nov 2016).

123
The Enrica Lexie case at the permanent court 229

with Art 290(1) of the UNCLOS.44 The request was concerning the
relaxation of the bail conditions of the accused who were staying in
Delhi. Italy requested that the accused be allowed to stay in Italy until
the final decision of the dispute. The PCA tribunal considered these
requests in its award of 29 April 2016 and prescribed the measures.45
Article 290(1) of the UNCLOS has been discussed earlier. This part of
the note deals with the issues before the tribunal, the legality of the
request and the analysis of the award and its implications on the
provisional measure regime. The issue before the tribunal was whether
India should relax the bail conditions of the accused persons in Delhi to
enable them to leave for and stay in Italy during the period of the
arbitral proceedings. The tribunal found that there was a dispute
between the parties concerning the interpretation and application of the
UNCLOS Convention. Hence, the PCA had prima facie jurisdiction over
the requests.46 In response, India claimed that the present claim was a
modification of the ITLOS Order. However, the tribunal observed that
the request presented was a new request. The jurisdiction of the ITLOS
under Art 290(5) was stated to be special and temporal, which could be
appreciated from the first sentence of Art 290(5).47
Accordingly, the PCA was not barred from exercising its jurisdiction
under Art 290(1) to adjudicate upon the request.48 Again, the tribunal
referred to the MOX Plant case, where it found that the request under
Art 290(1) of the UNCLOS was an independent claim.49 After
considering the indications made by the ICJ in Costa Rica v. Nicaragua
case,50 the PCA Tribunal affirmed that though Art 290(1) did not
contain the term ‘urgency’, ‘it is in some form inherent in the provisional
measures proceedings’.51 Satisfying itself with the legality of the request,
the tribunal considered two probable conclusions of the dispute and its
implications.
44
See, The Italian Republic v. The Republic of India, PCA Case No. 2015-28, Request for the Provisional
Measures under the UNCLOS, supra note 4, Article 290[1].
\http://www.pcacases.com/pcadocs/Request/Italys%20Request%20for%20Provisional%20Measures.
pdf[ (last updated 15 Nov 2016).
45
See, The Italian Republic v. The Republic of India, PCA Case No. 2015-28, Award\http://www.pcacases.
com/web/sendAttach/1707[ (last updated 15 Nov 2016).
46
The Italian Republic v. The Republic of India, PCA Case No. 2015-28, Award (3 May 2016) [55].
47
See, Wolfrum, supra note 19.
48
The Italian Republic v. The Republic of India, PCA Case No. 2015-28, Award (3 May 2016) [72 & 75].
49
The MOX Plant Case (Ireland v United Kingdom), [3 December 2001] ITLOS Rep [39].
50
Certain activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua), Provisional
Measures, (Order of 8 March 2011) ICJ Rep 6 [63 & 64].
51
The Italian Republic v The Republic of India, PCA Case No. 2015-28, Award (3 May 2016) [89].

123
230 Utpal Kumar Raha, K. D. Raju

At the end of the final proceedings, the tribunal would have to make
a clear decision as to whether jurisdiction rested with India or Italy. If
the PCA were to hold the view that India had no jurisdiction in this
dispute then the prolonged restriction on the liberty of the accused
living miles away from his home and members of his family would be
rendered irrational. Considering that the Indian courts are barred from
exercising criminal jurisdiction on the accused until a clear decision
from the tribunal, the accused would then be allowed to leave for Italy
and India’s right may necessarily have to be protected by securing the
presence of the accused.

4 The decision

In the final scheme of things, the tribunal held that ‘until the tribunal
concludes on the arbitration process, the accused marine in India would
leave for Italy and stay there on the conditions set by the Supreme
Court of India.’ In the operative part of the order of 29 April 2016, the
tribunal concluded that:

1. Both Italy’s and India’s utmost cooperation were required to decide

the case.
2. The accused would remain under bail with the authority of the
Supreme Court of India.
3. The accused would stay in Italy under the conditions determined by
the Supreme Court of India.
4. Italy would be bound to ensure the presence of the accused before
the Supreme Court of India, if the tribunal found that India did have
jurisdiction over him.
5. Like in other fields of international law, the protection of human rights
was a fundamental premise of the law of the sea also.
6. The tribunal also asked the parties to report to the tribunal regarding
compliance with the provisional measures.52

The tribunal pointed out that the fixation of the conditions of bail
was bestowed upon the wisdom of the Supreme Court. The tribunal
further suggested: ‘Such arrangements may, inter alia, include the
following conditions and guarantees: Italy shall ensure that Sergeant
Girone (who is staying in Delhi) reports to an authority in Italy

52
Ibid [132].

123
The Enrica Lexie case at the permanent court 231

designated by the Supreme Court of India in intervals to be determined

by the Supreme Court of India; Sergeant Girone shall be required by
Italy to surrender his passport to the Italian authorities and shall be
prohibited from leaving Italy unless the Supreme Court of India grants
leave to travel; Italy shall on its own motion apprise the Supreme Court
of India of the situation of Sergeant Girone every three months.’53
Two important aspects of this Award may be noted. Firstly that it is a
win-win situation for both parties. Not only are the human rights of the
accused and the rights of the Republic of Italy respected, but also the
authority of the Supreme Court of India over the accused is secured.
However, both India and Italy have looked at the order through
different lenses. India claimed that the decision had upheld its argument
even as the official spokesperson of the Ministry of External Affairs
stated India’s stand in the following words: ‘India’s arguments in this
case have been ‘‘recognised’’.’… ‘The authority of the Supreme Court
has been upheld. We remain confident that the issue of jurisdiction will
be determined in our favour’. However, the Italian officials read the
order as a vindication of their position that India, clearly, had no
jurisdiction.54
Secondly, the Award underscores the power of the court or tribunal
to prescribe appropriate measures. Article 75(2) and Rules of the ICJ
provide that the Court may indicate provisional measures different from
those requested. The tribunal or court under the law of the sea is also
empowered with such power by virtue of Article 290(1) and the Rules.55
The PCA tribunal also follows the agreed procedure, which may
empower the tribunal for the prescription of awards different from
those requested (as it happens to the current Award).56 Consequently,
the court or tribunal under the UNCLOS may prescribe provisional
measures which have not been directly or expressly requested. Judge
Wolfrum has underscored the scope and variety of the provisional
measures and the power of the bodies. He noted that provisional

53
Ibid.
54
India should send marine to Italy, U.N. arbitration court rules, The Hindu, 3 May 2016 \http://www.
thehindu.com/news/international/india-should-release-italian-marine-un-arbitration-court-rules/article8547
444.ece[ (last updated 15 Nov 2016).
55
Article 89(5) of the Rules of the ITLOS provides that when a request for provisional measures has been
made, the Tribunal may prescribe measures different in whole or in part from those requested and indicate
the parties which are to take or to comply with each measure.
56
Article 11 of the PCA Case No. 2015-28 Rules of Procedure \https://pcacases.com/web/sendAttach/
1558[ (last updated Nov. 11, 2016).

123
232 Utpal Kumar Raha, K. D. Raju

measures were only an accessory element of the main procedure. These

measures should be related to the application made and should not
constitute an interim judgment or contain an element anticipating the
decision of the merits.57
Furthermore, Orrego Vicuña offers examples of the prescription of
provisional measures which were not requested by the parties in the
Southern Bluefin Tuna, MOX Plant cases, the Strait of Johar case (in
relation to the appointment of an expert). He seems to have rightly
identified the recent trends in provisional measures and has gone on to
note that the tribunal appears to be increasingly interested in the
possibility of expanding the requested provisional measures.58 Orrego
Vicuña warns against such practices of the prescription of measures,
which may increasingly lead to a temptation to touch upon the merits
of the dispute.
In the present case also the tribunal had granted provisional
measures, which had not been requested.59 Yet it cannot be said that
the prescription was not related to the application made. The Award
shows that the discretionary power of the tribunal to prescribe
appropriate measures can be applied in a prudent manner so that the
pronouncement of an interim judgment could be avoided at this stage.
The innovation in this prescription is going to be considered as a
positive development in the provisional measures regime. Such an
impartial order will definitely enhance the confidence of states in
international dispute settlement procedures.60

5 Jurisdictional issues

From the above discussion it is clear that the question of jurisdiction

over the dispute was a point of contention and a determination of the
same was bound to have an effect on the decision. The issue of
jurisdiction is thus very important and needs to be analysed carefully.

57
Wolfrum, supra note 19, 431.
58
F.O. Vicuña, The International Tribunal for the Law of the Sea and Provisional Measures: Settled
Issues and Pending Problems, 22 Int’l J Maritime & Coastal L (2007), 457.
59
‘India shall take such measures as are necessary to relax the bail conditions on Sergeant Girone in order
to enable him to return to Italy under the responsibility of the Italian authorities, pending the final
termination of the Annex VII Tribunal’. The Italian Republic v The Republic of India, PCA Case No. 2015-28,
Award (3 May 2016) [25].
60
See, Anand, supra note 23.

123
The Enrica Lexie case at the permanent court 233

5.1 Jurisdiction of the coastal state

A sovereign state is entitled to claim jurisdiction over a crime

committed within its territory. Domestic laws of various nations also
provide extraterritorial jurisdiction over a crime committed beyond its
territory. However, the assertion of extraterritorial jurisdiction is always
controversial to the extent that such law is against the rights of other
states. The issue of assertion of extraterritorial jurisdiction over a crime
becomes more critical with respect to crimes committed on board ships
beyond the territorial waters of the coastal states. The flag states’
jurisdiction is accepted under the UNCLOS.61 However, the coastal
state’s laws are applicable when the ship is within their territorial
waters.62
If the crime is committed on board a foreign ship, in the internal
waters or the territorial waters after departing the port, such crime
under the UNCLOS is subject to the domestic law of the coastal state.63
However, 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).64 In the Mali v Keeper of the Common Jail case, the US
Supreme Court held that the murder on board a flag ship at the US dock
had disturbed the peace of the US and such crime was therefore
subjected to US jurisdiction.65 Again, if a serious crime is committed on
board the ship which is only travelling through the coastal states’
territorial waters, such crime is to be subject to the domestic law of the
coastal state if its implications are ramified or cause disturbance to the
peace or good order of the coastal state.66 International customs and
state practices also show that the penal jurisdiction of the coastal state
over a crime on board a ship is limited to the territorial waters only. In
the R v Teddy case, the crime was committed on board a ship flying
New Zealand flag beyond its territorial waters.67 The accused was

61
Eric Cafritz & Omer Tene, Article 113-7 of the French Penal Code: The Passive Personality Principle,
41 Colum J Transnat’l L (2003), 594.
62
The UNCLOS, supra note 4, Article 2.
63
Ibid., 511.
64
Kate Lewins, The Cruise Ship Industry—Liabilities to Passengers for Breach of s52 and s74 Trade
Practices Act 1974 (Cth), 18 MLAANZ J (2004) 30.
65
Mali v Keeper of the Common Jail 120 US 1 (1887). See, Gerhard Von Glahn & James Larry Taulbee, Law
Among Nations: An Introduction to Public International Law, 10th edn (Pearson, NY, 2016).
66
the UNCLOS, supra note 4, Article 27.
67
R v Teddy, SC 101/2014 [2015] NZSC 6.

123
234 Utpal Kumar Raha, K. D. Raju

charged under domestic law of New Zealand. The High Court found
jurisdiction over the crime, even though there was doubt on the
extraterritorial application of the concerned legislation. The court held
that the legislation by implication confers exterritorial jurisdiction with
the flag states in conformity with Art 92 and Art 97 of the UNCLOS.
The 12 nautical miles adjacent and beyond the territorial waters are
recognized as being contiguous zone. In this area the application of
coastal states’ law is confined to fiscal, sanitary, custom and immigra-
tion issues (Art 33).68 The provision clearly provides that the coastal
state may take preventive measures in case of breach of these four legal
issues within this zone. Article 33 is silent about the remedy to the
coastal state in case any violation of such law is committed within its
contiguous zone.69
Article 27 provides some clues as to the remedies in case a crime is
committed within the Exclusive Economic Zone (the EEZ) and the
erring vessel is in the territorial waters of the coastal State.70 Part V of
the UNCLOS provides that coastal states are entitled to certain limited
rights in this zone.71 The sovereign right of coastal states regarding the
exploitation of living resources,which includes fishing in the area
remains uncontested.72 However, from the provisions of this part of the
UNCLOS it is not clear whether the coastal state (in this case, India) has
jurisdiction in case its fishermen are killed in its EEZ by the foreign ship
(in this case, Italy). It is therefore unclear as to whether the current
incident attracts Article 27(5).
However, the coastal state may challenge the jurisdiction of the flag
states on the basis of three 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
68
Article 33 of the UNCLOS stipulates: ‘The coastal state is entitled to exercise jurisdiction if the violation
of its custom, fiscal, sanitary and immigration laws is committed within its territory or territorial waters. In
case, if such laws are violated in the Contiguous Zone, the coastal sate may take preventive measures only’.
The UNCLOS, supra note 4.
69
See, Ian Brownlie, Principles of Public International Law, 7th edn (OUP, NY, 2008) 196.
70
The UNCLOS, supra note 4, Article 27 (5) provides: ‘Except as provided in Part XII or with respect to
violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any
steps 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 before the ship entered the territorial sea, if the ship,
proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.’
71
Part XII deals with the environmental issues and the Part V deals with the rights and duties of the
parties to the Convention within the EEZ. And Article 56 (1) of the UNCLOS, supra note 4, says that in the
exclusive economic zone, the coastal State has sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living or non-living.
72
I. A. Shearer, Starke’s International Law, 11th edn (OUP, New Delhi, 2007) 241.

123
The Enrica Lexie case at the permanent court 235

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. Second, under the UNCLOS, the state has the power to
prosecute its citizens who commit an offence irrespective of the place of
its occurrence also known as the active personality principle of
jurisdiction.73 In the Nottebohm case it was held that the genuine link
between the citizen and the state confers the best possible jurisdiction to
the latter. 74 Third is the passive personality principle that states that the
state, against whose citizen the crime has been committed, may assert
jurisdiction.75 Indeed, the US claims special maritime and territorial
jurisdiction over the crime committed against its citizen on the High
Seas on the basis of the ‘effect’ principle.76 In US v Roberts the court
noted that the victim is its citizen and it has jurisdiction on the basis of
the ‘effect’ doctrine.77
However, in serious international crimes like terrorism, the question
regarding victim’s state jurisdiction is also controversial. Prof. Kate
Lewins has compared state legislations that deal with the issue of
extraterritorial jurisdiction on the High Seas. Literature on the subject
maintains that only the US legislation confers passive personality
jurisdiction while the three other legislations of other countries do not
rely on the passive personality principle.78
With regard to the case in point of Enrica Lexie, India claimed
jurisdiction over the issue by the extended jurisdiction conferred on it
by the Indian Penal Code (IPC). India claimed that the notification of
India’s Ministry of Home Affairs dated 27 August 1981 empowers the
application of the IPC for up to 200 nm and that as such India has
jurisdiction over the mariners in the dispute. The UNCLOS has clearly
negated any exclusive exercise of jurisdiction by the coastal state on
areas beyond its territorial waters except on a few occasions and the
present case does come under such exception. Yet Italy argued that,

73
The UNCLOS, supra note 4, 660.
74
Nottebohm Case (second phase), Judgment of 12 April 1955 (1955) ICJ Rep 4.
75
G.R. Watson, The Passive Personality Principle, 28 Tex Int’l L J (1993), 2. R. Pratap, India’s Maritime
Jurisdiction, 48 EPW (2013) 27-30, 28.
76
18 US Code § 7. See Byrobert D. Peltz and Lawrence W. Kayethe, Long Reach of U.S. Law Over
Crimes Occurring on the High Seas, 20 USF Maritime L J (2007-2008) 205.
77
See, United States of America v Kingsley Roberts, \http://law.justia.com/cases/federal/district-courts/
FSupp2/1/601/2569842/[ (last updated 23 Nov 2016).
78
See, Lewins, supra note 64, 30 (like US-Section 7 of the 18 US Code § 7, Australia-Section 6 of the
Crimes At Sea Act 2000, UK-The Merchant Shipping Act 1995 and New Zealand-Section 8 of the Crimes Act
1961).

123
236 Utpal Kumar Raha, K. D. Raju

pursuant to Article 58(2) of the UNCLOS, ‘no part of the High Seas is
subjected to the sovereignty of India.’
However, the declaration made by India at the moment of
ratification of the UNCLOS is of prime importance in this respect and
cannot be overlooked. On 29 June 1995 India clearly stated that ‘[t]he
provisions of the Convention do not authorize other States to carry out
in the exclusive economic zone and on the continental shelf military
exercises or manoeuvres, in particular those involving the use of
weapons or explosives without the consent of the coastal State.’79 It is a
well-accepted fact that the use of automatic weapons and firing in
India’s EEZ was without the consent and even knowledge of India.
Hence, clearly Italy is liable under the UNCLOS.

5.2 Jurisdiction of the flag state80

From the provisions of the Convention it is clear that in certain cases,

the flag state has exclusive jurisdiction in the EEZ. In case of any
casualty in the Contiguous Zone and the rest of the EEZ, the flag state
is required to enquire regarding the same (Art 94).81 Regarding the
jurisdiction, Art 97 confers exclusive penal jurisdiction with the flag
state in case of collision or any other incident of navigation.82 Though
both Articles 94 and 97 deal with the High Seas, these provisions are
applicable to the EEZ and the Contiguous Zone (Art 58).83
The current incident has nothing to do with collision at sea. The
fundamental question was whether the incident is an incident of
navigation. In the present disputes, the fishermen were unarmed and
had engaged in peaceful fishing within the EEZ of India, and that is 200
metres away from the erring vessel Enrica Lexie. It is somewhat difficult
to assume that such an act of killing was an incident of navigation.
Though Italy claims that the legal regime of the zones is clearly
established under the UNCLOS and that the combined effect of the
79
See, UN Oceans & Law of the Sea, Division for Ocean Affairs and the Law of the Sea \http://www.
un.org/depts/los/convention_agreements/convention_declarations.htm[ (last updated 22 Nov 2016).
80
The flag state of a commercial vessel is the state under whose laws the vessel is registered or licensed.
81
Article 94 (7) of the UNCLOS, supra note 4, 584.
82
Article 97 (1) of the UNCLOS says that 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. Ibid.
83
Article 58(2) provides that Articles 88 to 115 and other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible with this Part.

123
The Enrica Lexie case at the permanent court 237

provisions of Articles 94, 97(1) and 58(2) of the UNCLOS along with the
Rules 89(2) of the ITLOS, is that the flag state has exclusive jurisdiction
over the crime, even then the jurisdiction of Italy to this case is
questionable. Article 59 of the UNCLOS emerges as a lighthouse in this
dispute and the solution to the issue may be found on the basis of
equity.84
If any incident happens in the EEZ, the coastal state may remove the
erring vessel from its water or it can use ‘hot pursuit’ which is a
permissible measure under the UNCLOS. In the M/V ‘Saiga’ (No. 2,
1999) case also, the ITLOS tribunal had noted that the Convention
empowers the coastal state to apply the specific laws to the specified
areas of its EEZ. Therefore, the coastal state is empowered to apply its
custom laws in its Contiguous Zone and is not permitted to apply such
law to any other part of the EEZ.85 In other words, the Convention
restricts the coastal state from applying its laws in the EEZ except as
specifically mentioned in the provisions of the Convention.86
Though, in the Lotus case, the Permanent Court of International
Justice consented to the exercise of penal jurisdiction by the victim’s
state which was not the flag state. The UNCLOS clearly established the
flag state’s jurisdiction as applicable for any collision or any incident of
navigation that may occur in any area beyond the territorial limit.87
Reiterating this, through the International Convention for the Unification of
Certain Rules Relating to the Arrest of Sea-going Ships adopted in Brussels
on 10 May 1952, the Geneva Convention on the High Seas 1958, and
ultimately the UNCLOS (Article 97), the international community has
accepted the flag states’ jurisdiction over crimes in the EEZ.
Again among the domestic legislations, the Suppression of Unlawful
Acts (SUA) against the Safety of Maritime Navigation and Fixed Platforms on
Continental Shelf Act, 2002 (the SUA Act, 2002) has clear jurisdiction up
to 200 nm. However, the Government of India has clearly mentioned
that the said Act is not an appropriate law applicable to the Enrica Lexie

84
In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other
States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and
any other State or States, the conflict should be resolved on the basis of equity and in the light of all the
relevant circumstances, taking into account the respective importance of the interests involved to the parties
as well as to the international community as a whole.
85
The UNCLOS, supra note 4 [127].
86
Ibid.
87
S.S. Lotus Case (France v Turkey) PCIJ (ser. A) No. 10 [32]. The Permanent Court of International
Justice, often called the World Court, existed from 1922 to 1946, as part of the League of Nations.

123
238 Utpal Kumar Raha, K. D. Raju

case. Hence, it can be concluded that the accused marines could not be
subjected to Indian laws.

6 Concluding remarks

The order of the provisional measures of the arbitral tribunal is no

doubt a step in peaceful settlement of disputes between parties.
Moreover, it constitutes a step towards protecting the interests of both
the parties under the UNCLOS. The PCA Award establishes that the
request for provisional measures under Article 290(1) is not limited by
Art 290(5). In fact regarding the grounds for provisional measures, the
tribunal gave utmost importance to the criteria of human rights,
urgency, and the preservation of rights of the respective parties. This
Award may be regarded as an example where the discretionary power
lying in the UNCLOS provisional measure regime has been applied with
prudence. Further, on the issue relating to jurisdiction which is yet to be
determined by the tribunal, it is to be noted that the criminal incident in
the waters of the EEZ does attract the applicability of the international
law regime. The international law under the UNCLOS, the interna-
tional customary law applicable and the state practices provide for the
flag states’ jurisdiction in case of such an incident. Therefore, India’s
claim of jurisdiction over the Italian marines is unlikely to be upheld.
Nevertheless, the incident shows the necessity to bring further clarity in
the UNCLOS regime particularly when dealing with criminal activities
in the EEZ. Similarly, clarity is needed about the domestic legislation of
India, here, Maritime Zones Act, 1976.
It is hoped that the final decision would constitute a step in the right
direction, providing justice to both parties, as well as bringing greater
clarity in international law with respect to the law of the sea by setting a
right precedent.

123