01/12/2021, 22:19 Analysis of Enrica Lexie Case & its implications on future Arbitration

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Analysis of Enrica Lexie Case & its implications on

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July 8, 2021 0 Comment

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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

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
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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.

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 privatePrivacy
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tanker and thereby can only be considered as a “Private security team” not
availing any immunity from India’s legal system.

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
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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. Privacy - Terms

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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
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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
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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.

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
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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.”

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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.

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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.

1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
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