SUBJECT:-PUBLIC INTERNATIONAL LAW

NAME:-PRAMITA
PRN:-21010122005
INTERNAL1-RESEARCH PAPER

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ANALYSIS OF ENRICA LEXIE IN THE LIGHT OF SS
LOTUS

Abstract:-
It is widely acknowledged that unlike in nation states , there is no "higher authority" in the
international fora imposing binding rules upon the states.In this sese International law is
horizontal, there exists no legal pyramid creating hierarchy. Sovereign will of the states is the
basis of international law It is pertinent to ponder upon the question on what happens when a
state wants to do something but there exists no specific international norm prohibiting it, are
states free to act absent existence of a specific rule prohibiting it? How does one navigate this
question vis a vis notion of soveregnity? This question was answered by PCIJ in 1927 in
what's called the "SS Lotus" case. A strict positivist notion emereged from the said case
wherein the court mentioned that we can not presume the restrictions upon independence of
the sates. It left wide descrition upon the states to decide what principles to adopt unless there
exists some prohibitive rule. With the passage of time , more treaties have come into place, It
seems like nature of international law is less "permissive" in nature. Even though the Lotus
principle is considered to have become obsolete Republic of India relied on the same in a
case widely called as "Enrica Lexi" case.In this paper, we aim to proceed with a background
of the law applicable to the case to set the discussion. Highlight the jurisdiction
conundrum ,briefely analyse the stance of the Indian Supreme Court and the final award of
PCA. Whilst critically analysing the whole issue we discuss what legal implication it ensues
on international community with special emphasis on Piracy.

The S S Lotus case:-

In this case a collision happened between French vessel "Lotus" and Turkish steamer "Boz-
court" on the high seas. The Boz court sank. It also led to the death of 8 Turkish
citizens.Turkish authorities started proceedings against the first officer of Lotus along with
the captain of Boz court.Found guilty,they were sentenced to 80 days of imprisonment and
fine.

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France claimed a lack of jurisdiction for prosecuting a foreigner for the acts committed
outside the territory of Turkey. When the matter reached the permanent court of international
justice(PCIJ), the question before the law was, Can Turkish authorities exercise their
jurisdiction under international law, over french citizens?
The prosecution of the French captain by Turkey was legitimate since the collision impacted
Turkey, and Turkey had the legal authority to prosecute the captain. According to PCIJ, both
France and Turkey had jurisdiction in that matter1.
Interestingly, the court based its ruling on the "Permissive nature of international law," which
means behavior is considered lawful unless there exists some rule to prohibit the same.
The court explained that the jurisdiction is essentially territorial, a state can not exercise it
except when a convention or custom provides the same. However, it does not mean that
international law prohibits nation-states from exercising the jurisdiction in its own territory
for the acts taken abroad , where no permissive rule exists. The reasoning provided was that
since the notion of sovereignty requires that rules can only be made with the states' consent,
unless specifically prohibited behavior of a state would be considered lawful. PCIJ also
propounded the “Effects Doctrine” for claiming prescriptive jurisdiction, allowing State
jurisdiction for acts committed outside State territory The Court determined that the effect of
the Lotus captain's conduct were felt within Turkish territory by equating the Boz Kourt to
Turkish territory, and so Turkey may prosecute Lieutenant Demons2.

The aftermath of lotus and UNCLOS:-

This judgment is widely chastised amongst international law scholars. Moreover, since 1927
international law has developed immensely. As more rules have come into existence, the
notion of the "permissive nature" of international law has declined. While these theories may
be the subject of doctrinal debate, The Lotus decision is overturned by the Geneva
Convention on High Seas, and UNCLOS Article 973. The Lotus decision was overturned with
the goal of "protecting ships and their crews against the risk of being prosecuted by foreign
tribunals in the case of an accident on the high seas, because such proceedings may
constitute an unbearable impediment to international navigation." This must be understood
in conjunction with  1952 Convention for the Unification of Certain Rules Relating to Penal

1
France v Turkey ,Judgment [1927] PCIJ (ser A) No 10.
2
Ronzitti, N., 2013. The Enrica Lexie incident: law of the sea and immunity of state officials issues. The Italian
Yearbook of International Law Online, 22(1), pp.1-22.
3
 “Articles Concerning the Law of the Sea with Commentaries” in vol 2 Yearbook of the International Law
Commission, 1956, p 265, at p 281.

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Jurisdiction in matters of Collision which limits the jurisdiction over collisions on the high
seas to the flag state or nationality of a state. This stance is reiterated in Article 11 of the 1958
Geneva Convention as well.In Enrica Lexi case, however,SC deviated from applying Article
97 of UNCLOS and choose to apply the lotus principle and remarked that it continued to
remain a "good law".

Republic of Italy v. Union of India

The incident happened on February 15, 2012, an Italian flagged shipping vessel MV Enrica
Lexie was on its way to Djibouti soon it came across "St. Antony" which was an Indian
fishing vessel. Enrica Lexie was sailing with an Italian Military Protection Department on
board, whose job was to keep the ship safe from pirates. The ship was cruising near the
Indian border in the Indian Contagious Zone when the "Mercury Chat" reported a piracy
attack. This zone was known as a hot zone for pirates.St. Antony was mistaken for a pirate
ship by the marines, who killed two Indian fishermen at around 20.5 nautical miles from the
coast. The Maritime Rescue Coordination Centre, Mumbai contacted Enrica Lexi requiring it
to return the Kochi port and help with the enquiry of the incident. Enrica Lexie changed its
course to return to Kochi port, on February 16 2012. When the vessel arrived at Cochin, the
Master was notified that a FIR had been filed in connection with the firing incident that
resulted in the deaths of two Indian fishermen. Massimiliano Latorre and Salvatore Girone,
two marines, were detained and charged with murder under the Indian Penal Code on
February 19.
Issues raised:-
 Did India have the jurisdiction to try the case?
 Were Italian marines entitled to sovereign functional immunity as they were navy
guards on an Italian ship acting under Italian orders?
Contentions on behalf of Italy:-
Italy contended that India being a signatory to UNCLOS respect its provisions.UNCLOS
Article 97, states that "Penal Jurisdiction in Matters of Collision or Any Other Incident of
Navigation" is available to flag state. So,the supremacy of Flag State Jurisdiction.must be
recognized.Further, The Maritime Zones Act of 1976 allows foreign ships to use territorial
waters (other than warships including submarines and other underwater vehicles)The event
occurred 20.5 nautical miles off the coast of India, outside of territorial seas, and thus did not

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fall under the jurisdiction of one of the Union of India's federal entities. Enrica Lexi was thus
entitled to right to innocent passage.
India:-
SC in its verdict of January 18, 2013, upheld India's claim of having the jurisdiction to try the
marines. 
Jurisdiction:-
On the question of jurisdiction, India was clear that sec4 of the IPC which deals with penal
jurisdiction extends to "every person". Where an offense is committed outside India by an
Indian citizen, whether on the high seas or elsewhere, or by a person who is not an Indian
citizen, on any ship or aircraft registered in India, he may be prosecuted as if the offense had
been committed anywhere in India.
But the problem was that incident happened in a contiguous zone (20.5 N miles) and not
territorial jurisdiction.However, State's competence to extend enactments to preserveor for
exploration, exploitation, conservation, and management of natural resources, including
fishing rights, would be included in Section 7(4) of the Maritime Act. As a result, extending
the provisions of the IPC and the CrPC throughout the Exclusive Economic Zone was
justified to preserve fishing rights under Section 7(4)(a), This would imply extending
legislation for the protection and security of Indian fishermen. Therefore,the Italian nationals
made themselves liable to be tried by Indian courts under domestic laws by opening fire on
an Indian fishing vessel and murdering two of the fishermen onboard within the Contiguous
Zone4.
The court here used the lotus principle.Since the act done onboard the Lotus had an effect on
the Boz-Kourt flying the Turkish flag, it was found that Turkey had not behaved in a manner
that was contrary to nternational law.India might exert jurisdiction over the occurrence since
a country could legitimately exercise some sovereign rights in the EEZ and Contiguous
Zone .
When it comes to the question of whether there is a positive or permissive rule of
international law that allows India to prosecute its marines, all one has to do is look at the
provisions of the 1988 Convention for the Suppression of Unlawful Acts of Violence against
the Safety of Maritime Navigation (SUA). Articles 3 and 6 of this Convention, to which both
Italy and India have signed, reinforce the stance that jurisdiction can be conferred by the
effect of an illegal conduct5.
4
Republic of Italy v. Union of India (2013) 4 SCC 721.
5
Patel Bimal N., India and International Law (Edited), MartinusNijhoff Publishers, (2005).

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Article 97 of UNCLOS:-
Article 97 of the UNCLOS states that in the event of a collision or other incident of
navigation involving the master or any other person in the ship's service and involving the
master's or any other person in the ship's service's penal or disciplinary responsibility, no
penal or disciplinary proceedings may be brought against such person except before the
judicial or administrative authorities of the flag State or the national of such state. Any
authority other than the flag State's authorities may not order the ship's arrest or detention,
even if it is for investigation.Further, the flag state is given exclusive jurisdiction in the
matter. 
On reading article 97 of UNCLOS, India contended that it seems it relates to a navigational
accident in which a collision between two vessels is the primary occurrence "an incident of
navigation", as defined in the aforementioned Article, cannot include a criminal act under any
circumstances.Similarly,  On Article 11 of the Geneva Convention on the Law of the Seas,
1958, it was argued that homicide of an Indian on board an Indian can not be concluded as
"incident of navigation", as implied in the aforementioned Article .It deals with the collision
on the high seas. 
Sovereign immunity:-
 SC remained skeptical about the claim of sovereign immunity and adopted a narrow view of
sovereign immunity .For SC such a claim was depended on the diplomatic status, it excluded
armed forces personnel6. It referred to what Lord Denning said in M.R. in Trendtex Trading
Corporation vs. Bank of Nigeria "The doctrine of sovereign immunity is based of on
international law. It is one of the rules of international law that a sovereign state should not be
implemented in the courts of another sovereign state against its will.It has become the "law of
civilized nations"; however the concept of customary international law arose from the basic
idea of norms to which all states agreed 7. As a result, each country defines the boundaries of
sovereign immunity for itself. Each creates its exceptions to it. Indian court did not hesitate
from adopting a narrow view of immunity.

Decision of ITLOS :-
As per Article 288 of UNCLOS,The Tribunal's jurisdiction was confined to disputes relating
to interpretation or application of that treaty (para. 217). While for  Italy, issue remained 

6
Valeria Eboli & Jean-Paul Pierini, Coastal State Jurisdiction over Vessel Protection Detachments and
Immunity Issues: The Enrica Lexie Case, 51 MIL. L. & L. WAR REV. 117, 122 (2012).
7
M.R. in Trendtex Trading Corporation vs. Bank of Nigeria [(1997) 1 Q.B. 529.
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which state had jurisdiction over the incident under UNCLOS (paras. 223–25). India, on the
other hand, contended that issue was  whether the Marines were entitled to immunity from
criminal proceedings, which UNCLOS did not specifically mentioned(para. 226).ITLOS
stated that India and Italy had "Concurrent jurisdiction" over the incident. It is surprising that
even ITLOS somewhere cited the Lotus principle. It stated that A State can exercise
jurisdiction "if one of the constituent elements of the offense, and more especially its effects,
have taken place in its territory". The killing of fishers indeed brought effect on St.Antony.
However, ITLOS stated that India was wrong in exercising penal jurisdiction8.
Italian marines are entitled to immunity under customary international law, even though
UNCLOS was silent on this issue.When officials exercise their official activities, they are
precluded from foreign criminal jurisdiction.Despite this, the Tribunal ruled that the marines
infringed India's right to freedom of navigation under the UN Convention on the Law of the
Sea (under Articles 87(1)(a) and 90).Another interesting observation that Tribunal made was
concerning the piracy, even though Piracy is an international crime And article 100 of
UNCLOS talks about repression of piracy, it does not "does not stipulate the forms or
modalities of cooperation"9.Final award allowed Italy to begin criminal investigations into the
incident that had been halted following ITLOS's provisional measures order in 2015. Tribunal
also ordered Italy to compensate for "loss of life, physical harm, material damage to property
(including the 'St. Antony,' and moral hurt sustained by the captain and other crew members
of the 'St. Antony10.”

Critical Analysis:-
India has been criticized for it’s over reliance on the SS lotus case, the SS lotus case differs
from “Enrica lexie incident”.While Lotus case was that of “collision”the latter involved
“shooting”.The PCIJ held that there were no particular restrictions applicable in the event of a
collision in comparison to any other offense; however, with the passage of UNCLOS, the
situation has changed. The flag state has exclusive jurisdiction over an incident involving a
crew member of a ship in a "collision or any other nautical incident on the high seas,"
according to UNCLOS Article 97.. As a result, those ships are subject to the laws of the flag
State. In the instance of the Enrica Lexie, it is obvious that the incident was a shooting rather

8
Tanzi, A.M., 2021. Adjudication at the Service of Diplomacy: The Enrica Lexie Case.
9
The “Enrica Lexie” (Italy v. India), Provisional Measures, Order of 24 August 2015, ITLOS Reports, 182.
10
Enrica Lexie” Incident Award, supra note 1, para. 1094

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than a collision or other navigational incident, excluding the incident beyond the ambit of
Article 97 of the Convention on the laws of sea11.
Piracy has emerged as a unique problem, times have evolved since Lotus and so have new
challenges. In this case,the use of force by VPDs(vessel protection department)must be
restricted to self-defense exclusively. Being a member of the country's armed forces does not
grant the right to use lethal force except in self-defense. However, the lack of anti-piracy
measures makes it difficult. and It becomes vital for governments to utilize force as Piracy is
an international crime. The lack of an international tribunal to punish the crime made it
necessary for individual nations to do so, but they found it difficult to do so. In 1999 Alondra
Rainbow ship was captured and pirates were apprehended off the coast of Indonesia by the
Indian Navy. This was Despite the fact that India had no interest in the ship. The UN sec gen
in 2010 itself recommended the international community to establish a regional or
international tribunal. The international community should join hands in order to deal with
problems like these which involve questions of jurisdiction and mutual cooperation12.

Conclusion:-
“Enrica Lexi” case seems a lot like Lotus case where India seems to take Turkish assignment.
However,there are certain differences, both with regards to the facts and outcome.  That
being said, both cases raise certain basic issues about the nature of the international legal
order. It is precisely why we still study the Lotus after 85+ years.It also explains why Enrica
Lexie  should not be limited to Italy and India. The difference is while Lieutenant Demons in
the Lotus case, was a Lieutenant of France’s marines. France’s objections relied on his
citizenship. Here, Italy State sovereignty as the Italian marines who were performing state-
mandated functions and entitled to sovereign functional immunity. One lesson learnt from
this case is that globalized world entails globalized problems.. If we can’t shut our eyes to
problems of different regions, as they will come back and bite us where we sit. The loopholes
regarding the UNCLOS provisions with regard to piracy and immunities is something worth
working upon.Enrica Lexi case thus remains pertinent for the whole world and not merely the
two states involved.

 
11
Kurlekar, A. and Pai, M., 2013. The Divergence between International Law and Indian Law Applicable in
Counter Piracy Measures: Analysed through the Decision of the Republic of Italy v. Union of India. NUJS L.
Rev., 6, p.527.
12
Black, N., 2013. Criminal jurisdiction over maritime security in the Indian Ocean. Cornell Int Law J Online,
1, p.77.

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