This article is written by Ritu Raj, a BA LLB student from Dr. D.Y. Patil Law College, Pune and Tejashree Dhasade.
With the turn of the century, the crime of piracy has substantially grabbed the attention of the international community. Its historic and continuing presence has led to the formulation of various treaties and conventions. These agreements empower as well obligate the states to implement the counter piracy measures in order to facilitate trade and commerce across seas. There have been ongoing developments in the counter piracy measures to meet the growing problems of piracy. Various methods such as universal jurisdiction and seizure protocols have been consistently adopted to equip the naval vessels to act against piracy or suspicion of piracy.
The case of Enrica Lexie presented a new dilemma globally. A brief account of facts is necessary to establish the subsequent discussion in context. On 15th February, 2012, Enrica Lexie, an Italian flagged commercial ship onboard with six armed personnel heading towards Djibouti, came across an Indian fishing boat ‘St. Anthony’. Mistaking (allegedly) the fishing boat for a pirate vessel, the armed guards opened fire and killed two innocent fishermen. The beginning of the case can be traced back to the First Information Report (“FIR”) describing the attack and the subsequent death of two Indian fishermen, filed by the owner of the fishing boat with the Circle Inspector of Police, Neendakara. Consequent to this, a criminal case was registered as Crime No. 2 of 2012 against the Italian marines. The concerned marines were arrested, detained and later released on bail but the marines as well as the Consul General of Italy requested the High Court of Kerala to issue appropriate writ or direction to quash the FIR and thereby declare the arrest of the two Italian marines, namely Massimalona Latorre and Salvatore Girone and all further proceedings as null as void. However, the High Court dismissed this petition and so the Italian Ambassador filed a Special Leave Petition before the Supreme Court of India which was disposed off by Chief Justice Altamas Kabir Justice Jasti Chelmaeswar. However, the case later went on to be decided by the International Arbitral Tribunal.
Interface of international law and national law: Judgements of the Indian courts
The High Court of Kerala
The Italian marines and the Consul General (Italian side) raised the argument before the High Court majorly on two ground- firstly, the crime was perpetrated in international waters and thus fell under Article 97 r/w Article 58(2) of United Nations Convention on Law of the Sea, 1982 (“UNCLOS”), according to which the jurisdictions to try the offence lies solely with the flag state.
Secondly, the incident took place in the Contiguous Zone/ EEZ, beyond the territorial waters of India and taking into account 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 nm from the nearest point of the base line. Hence, the Indian courts have no jurisdiction over the event. It was also contended that the Supreme Court of India, through various judgements concerning the applicability of Section 4 of Indian Penal Code (“IPC”) has made it amply clear that jurisdiction of Indian courts, in case of criminal offences is restricted to the territory of India (i.e. not beyond the territorial waters) and it is only the Indian citizens that are to be subjected to extra-territorial jurisdiction under Section 4 (not to the Italian marines who are Italian citizens). Therefore, all the proceedings ensuing the FIR were without jurisdiction and thus need to declared null and void.
Further, the Italian side contended that the marines were posted by the Italian Defence Ministry with the aim to protect the vessel from piracy and thus were acting in their official capacity under the standards of International Law. Hence, only the flag state has the jurisdiction. It was argued that they enjoyed functional immunity, thereby entitling them not to be prosecuted anywhere else but by the courts and military tribunals of Italy.
In reply to the contentions of the Italian side, the Respondents i.e. Union of India and others (“Indian side”) argued that the Indian courts had complete jurisdiction to try the offence as two Indian fishermen killed were onboard a boat registered in India and therefore should be viewed as Indian territory. Further, a Central Government notification dated 27 August, 1981 was produced; according to which IPC and Code of Criminal Procedure, 1973 (“CrPC”) extended to EEZ.
It was also asserted that Standard Operating Procedures (“SOP”) and Best Management Practices (“BMPs”) that are available to deter supposed pirates weren’t undertaken by the Italian side before resorting to aimless firing, which should have been the last alternative (availed only in extreme circumstances of self-defence)
Considering all the issues put forth along with the Suppression of Unlawful Acts against Safety of maritime Navigation and Fixed Platform of Continental Shelf Act, 2002 (“SUA”) that was not included in the pleadings by either side, the Kerala High court found that, despite the minor discrepancy relating to the place where the incident took place, according to both UNCLOS and Maritime Zones Act, 1976, the event occurred, although not in territorial waters of India but in Contiguous Zone/EEZ.
The High Court established its jurisdiction by conjoint reading of Section 3 of IPC and Section 3 of SUA Act as well as the notification issued by the Central Government dated 27 August, 1981. It is pertinent to note that the Court went through certain concepts of International Law like objective territoriality principle and passive nationality principle that envisage lay allows the state to assume criminal jurisdiction and try offenses committed outside its territory.
On the application of Article 97 of UNLCOS, the Kerala High Court distinguished the present case for not being an incidence of navigation as the firing on unarmed fishermen, in no imagination can be put under the umbrella of incidence of navigation. Furthermore, the Court found that firing by marines without any imminent threat or provocation was a clear violation of Privately Contracted Armed Security Personnel guidelines. Hence, it was concluded by the court that “the firing is nothing but a brutal killing of two defenceless fishermen on board the boat”.
With respect to the petitioner’s claim to functional immunity, the Court opined that the “the extent of immunity depends upon the circumstances in which forces are admitted by the territorial state, and in particular upon the absence or the presence of any express agreement between the host and sending state regulating the terms and conditions governing the entry of forces in the host territory”.
The court remarked that, despite the fact that Italian marines did not enter the territory of India, they had committed criminal offence, while indulging in non-military functions and thus, the aggrieves state was entitled to claim jurisdiction. According to the Court, in no possible situation, the act of the Italian marines can be covered under sovereign function. As a result, the court refused to acknowledge that the concerned marines were entitled to sovereign immunity.
The Supreme Court of India
While the decision of the Kerala High Court on the writ petition was pending, the Italian side presented another writ petition before the Supreme Court under Article 32 of the Constitution of India. Natheless, during the pendency of writ petition before the apex court, the Kerala High Court dismissed the writ petition filed before it. Aggrieved by the High Court’s decision, the Italian side went on to file a Special Leave Petition (“SPL”), in order to challenge the dismissal of their writ petition by the Kerala High Court. Since, the substance of the relief of the petition already pending before the Supreme Court and the SPL were same, the apex court decided to hear them together.
The Supreme Court, in dealing with the petitions, seems to have exercised due caution while extending the Indian law to EEZ. The main contention that the petitioners presented was that the incident didn’t take place within the jurisdiction of any of the federal units of the Union of India and accordingly, the incident happened in a place in which the Central Government could exercise sovereign right not amounting to sovereignty under UNLCOS and Maritime Zones Act, 1976. It was further stated that the act nowhere empowered the coastal unit forming part of Maritime Zone adjoining the coast, to avail jurisdiction, thereby implying that the arrest and detention of Italian marines by the police officials of state of Kerala was unlawful and should be quashed.
Furthermore, regarding the issue of jurisdiction of flag state, it was argued by the petitioners that UNCLOS as well as the Maritime Zones Act, 1976 gives primacy to flag state jurisdiction and therefore there exists a pre-emptive right in favour of the Republic of Italy (petitioner no. 1) to try and prosecute the Italian marines (petitioner no. 1 and 2) under the local law. It is the duty if the flag state to carry out penal and disciplinary proceedings in the case of any collision or other incident of navigation. Attention was also called upon the fact that notification of 1981 wasn’t in consonance with the provisions of Part V of UNCLOS, thereby raising the question of primacy in case of divergence in UNCLOS and Maritime Zones Act, 1976. It was urged that there should be harmonious construction between the two Acts. The Geneva Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision 1952 was also referred which ruled against the approach of concurrent jurisdiction in case of marine collisions. On the subject of sovereign immunity, it was plead that the Italian marines were part of Military Protection Squads and therefore their conduct was in fulfilment of their official duties as per UNCLOS and other relevant UN Security Council Resolutions on Piracy off the Horn of Africa. In event of piracy attacks, the master of the vessel would not have any control over the concerned squads deployed by the Italian government and therefore sovereign immunity needed to be conferred upon the marines.
On the other hand, the Indian side asserted that there was no friction between the domestic and international law and even if there was some conflict, the Indian law prescribed the prevailing of domestic law over international law. It was further argued that interpretation of Section 7(7) along with the notification would recommend that if IPC is applied to the EEZ that includes Contiguous Zone, the Indian courts would have territorial jurisdiction to try the crimes occurring within the Contiguous Zone. The Indian side emphasized that Article 56 (1) (a) be read with Article 73 of UNCLOS to justify the actions taken against the accused party. It is asserted that even if it is presumed that the rights claimed by India were past those mentioned in Article 56, such divergence needs to be resolved in the light of all the facts and on the basis of equity. Also, even if both the nations are empowered to try the accused, it is more feasible and appropriate for the prosecution to take place in India with regards to the place of incident as well as the nature of evidence and witnesses. It was further asserted that since, Article 97 of UNCLOS did not take into account the place where homicide occurs, accordingly, the clauses of Article 97 shouldn’t come into play.
With regards to the sovereign immunity, the counsel representing Union if India advanced that the activities of the Italian marines fell under acta jure gestionis (commercial acts of state) and not under acta jure imperii (public acts of the government of state) and thus the extent of Italian laws would have to be confirmed through evidence. Further it was argued that it is not policy of Indian government to enter into a Status of Forces Agreement (“SOFA”) through which foreign armed personnel be granted immunity from criminal proceedings and therefore the claim for functional immunity wouldn’t be maintainable.
The Counsel for State of Kerala contended that the said facts brought the entire case within the jurisdiction of the Kerala police. It was also argued that, although the two acts- UNCLOS and Maritime Zones Act 1976 appeared similar, there was a conflict between them; accordingly, in case of conflict between the national law and international law, the former should override the latter. Moreover, the notification extended the application of IPC and Cr.P.C. to EEZ and thus, State of Kerala has the jurisdiction to try the case.
After considering all the contentions, the Supreme Court majorly focused on whether Kerala police had the jurisdiction to try the case and the compatibility of UNCLOS with that of Maritime Zones Act 1976. The court didn’t discuss the plea on sovereign immunity raised by the Italian side in much details.
The court held that the alleged crime took place in the Contiguous Zone rather than the territorial waters of the coast line of Kerala and therefore the state police had no jurisdiction. It was observed that even if the provisions of IPC and Cr.P.C. were enlarged to the contiguous zone; it did not endow the Kerala state with the powers of investigation and trying of offence. Furthermore, the Union of India was directed to constitute a special court with the consultation of the Chief Justice of India to try the case and dispose off the case by harmoniously construction the provisions of IPC, Cr.P.C, Maritime Zones Act 1976 and UNCLOS to resolve the conflict between the national and international law. The court made it ample clear that the petitioners would be allowed the invoke the provisions of Article 100 of UNLCOS, thereby questioning the jurisdiction of Union of India.
The Ball in International Tribunal
The Majority Decision
Italy moved International Tribunal for the Law of the Sea (“ITLOS”) to let the two Italian marines stay in their own nation during the trial and also direct India from moving ahead with its criminal proceedings. At that point of time, on the order of the Supreme Court, India had formed a special court to ascertain the applicability of jurisdiction. Moreover, the National Investigation Agency (“NIA”) of India had charged the two Italians for murder, attempt to murder and common intent under IPC. On 24th August, 2015, ITLOS called upon both Italy and India to put on hold all the domestic proceedings relating to the Enrica Lexie case and not to initiate any process that may prove to be prejudicial to the decision of the arbitral tribunal.
As per UNCLOS, there are for ways to resolve any dispute and one of which is ad-hoc arbitration envisaged in Annex VII of the Convention. In accordance with the convention, a special tribunal was established consisting of five members 6th November, 2015.
It was argued by the Indian side that even if immunity of marines is taken into account, the exception of territorial tort comes into play as the alleged offence was “committed against Indian nationals, on an Indian flagged boat, which is assimilated to India’s territory for the application of criminal law, and the Marines have been found on India’s territory” Further, India contended that the legal fiction of integrating ship and territory for the particular scheme of criminal law is quite logical and well accepted, especially because the criminal jurisdiction is exercised either on the following two basis- territorial or personal and thus for offences committed on ship, only territorial jurisdiction is possible. Although the Italian marines were not onboard the fishing boat when they committed the alleged offence, Indian maintained the fact that general practice reveals that due consideration needs to be given to whether the effect of injury was felt on the territory of forum state.
On the subject of immunity, it was held by the arbitral tribunal that the two Italian marines involved in the shooting of two Indian fishermen on the high seas in 2012 were entitled to immunity as it is the most ubiquitous rule of customary international law that state officials have immunity. The court ruled out the territorial tort exception as it would not apply in the present case due to the fact that the marines were not on territory of India when they committed the concerned crime.
While analysing the contentions on jurisdiction, the Arbitral Tribunal referred the well-established objective territoriality principle of international law; according to which the state may claim its jurisdiction with respect to crimes perpetrated beyond its territory but consummated within its territory as stated by the Permanent International Court of Justice in 1926. It was concluded it doesn’t matter whether the acts of the marines were unlawful or not, the evidence indicates that at the time of the incident, the marines were under an apprehension of piracy attack thus engaged in fulfilling the official duties as members of Italian Navy as well as that of a Vessel Protection Detachment (VPD).
With regard to the legal fiction of jurisdictional relationship between the vessel and its flag state, it was ruled that assimilation of ships with land territory of the flag state has been universally rejected. The tribunal went on to say that it was undisputed that the marines were onboard the Enrica Lexie and not on India’s territory when the offence was committed. There was no intentional breach of India’s sovereignty per se. Therefore it was asserted that the exception, although recognized under customary international law would not apply to the present case.
According to Judge Rao, the order of the tribunal isn’t in consonance with the well-founded principle of international law that government officials are entitled to immunity from foreign jurisdiction for performing official acts. This is because the assistance provided by the marines was part of an agreement that constituted a commercial contract. The judge said “it was like a square peg in a round hole”
Judge Patrick Robinson, another member of the tribunal, remarked that the tribunal failed to distinguish between the immunity of state official from immunity of the state itself for the acts of its officials. Generally, the immunity of a state official moves on the basis the immunity is enjoyed by the state itself in respect of the acts of its officials; but if the state itself doesn’t enjoy immunity for some conduct, how can the official be entitled to such immunity.
He further stated that it is the nature of the act that deserves attention rather than the purpose. The authorities support the use of standard of nature rather than its motive or purpose to differentiate between an act jure imperii and an act jure gestionis the former being a sovereign act enjoys immunity whereas the latter being a commercial act, does not attract any immunity. The state officials do not manoeuvre their own immunity and the source of their immunity is the state. If the state lacks immunity (like Italy does in the present situation), so will its officials. According to him, Italy has the burden to establish that service rendered by the marines was in the course of their employment of Italian government and not of the shipowners. In the absence of an agreement between the two nations for their immunities, as officials of a foreign state, the marines weren’t entitled to any immunity from the criminal jurisdiction of India.
India-Italy Relationship and Post-Judgement Development
In both the nations, media extensively drove into the Indian-Italian crisis and with Italy’s foreign minister’s resignation, diplomacy was put on hold by the passionate nationalism. Although the countries have no common boundary or conflict of interests, there was series of intimidating remarks as to retaliation on both sides.
There was a major setback in 2013 when Italy refused to keep its word on the return of marines after voting in an election. The then Prime Minister of India, Mr. Manmohan Singh called the whole situation unacceptable and warned the Italian of serious consequences. Moreover, the Supreme Court of India forbid the Italian ambassador, Danielle Mancini from scooting India. The crisis led to the stepping in of UN Secretary General Ban Ki Moon who called upon a peaceful resolution of the dispute. In order to de-escalate the whole situation, Italy sent the marines back.
While the crisis going on in full volume, European Union (“EU”) decided to soften the ties. The newly appointed EU High Representative for Foreign Affairs, Federica Mogherini became the activist. As per the EY Parliament, India was incorrect in arresting and detaining the marines without charges as it was clear violation of their human rights. According the India’s then ambassador to Italy, Basant Gupta, all high-level contacts was suspended and no meetings of joint commission as well as the defence authorities were held. He himself was not allowed to leave for Rome. Furthermore, in 2015, India’s admission into the Missile Technology Control Regime (“MTCR”) was blocked by Italy.
Pulling Back from Hard-line
Although the dispute had picked up the high-gear, it was asserted that business continued without any hinderance. Italy stands as the tenth largest market of India and between 2000-2018, Italy had invested around $3 billion in India. In terms of international business, Italy considers India among its top 5 partners.
Moreover, Italy’s position relating to India’s foreign policy is significant and it is a great choice of partner in securing international support for nation’s development. Also, to smoothen the friction created by blockage of India into MTCR, Sushma Swaraj went to Rome in 2016. Also, the 13th India-EU summit that was postponed in 2015, was held in 2016. To further mend ties, India hosted Prime ministers Paolo Gentiloni and Giuseppe Conte in 2017 and 2018 respectively. Successive visits by head of state is an unusual phenomenon but so was the condition.
Post International Arbitral Tribunal decision
According to Narinder Singh, Arbitral Tribunal’s judgement that allowed Italy’s plea of immunity to marines, has great significance on the shipping industries. The private shipping will be really elated with this decision as the deployment of state officials for curbing anti-piracy activities onboard private vessel had a grey area legally speaking.
From India’s point of view, the only positive thing in the order is that Italy has to compensate for breaching the UN Convention. In addition to this, the court called upon both the countries to consult each other and reach an agreement on the amount of compensation to be paid to India.
In order to facilitate the decision of the International Tribunal, on July 3, the Government of India has filed a SPL before the Supreme Court to dispose of all the criminal proceeding against the Italian marines. The Union of India said that it had “decided to accept and abide” by the decision of the Tribunal. However, the Supreme Court of India has refused to accept the request until the families of the victim are heard.
Conclusion: Relevant Takeaways from the Enrica Lexie Incident
The Enrica Lexie case has received worldwide attention and doctrinal importance and this makes it relevant for the whole of international community. It exemplifies the convolution that arises in settling jurisdictional squabble and interpreting the relationship between national and international law. The law has its own limitations in resolving disputes and adversarial circumstances. This is a unique case as the incident had been brought under judicial scrutiny. The unprecedented nature of this incident
From India’s point of view, the tribunal’s order is a big blow to the domestic law and in future if a similar incident occurs on the Indian coastal waters, the law enforcement agencies may find their hands tied in protecting the interests of their countrymen who frequently use the EEZ for livelihood. Also, India’s sovereign rights within its EEZ have taken a backseat, thereby undermining the rights of innocent fishermen. The reading of the order doesn’t bring about compatibility of the international and domestic laws. Also, with Supreme Court’s refusal to dispose off the ongoing criminal proceedings against the Italian marines may prove lethal to the diplomatic relations of India and Italy.
Further, reading the dissents, it is clear that the tribunal’s conclusions are vulnerable. For an arbitral tribunal to decide a matter, it must decide the principal norms applicable to the case (and not the incidental norms), otherwise it acts in excess od its jurisdiction. According to Article 288 (1) of UNCLOS, a tribunal shall have jurisdiction over disputes regarding the interpretation of UNCLOS and therefore, a tribunal under Annex VII would be barred from determining claims where interpretation of UNCLOS is not involved.
In exercising jurisdiction, the tribunal is incorrect in terming the question regarding immunities ad incidental; firstly, because the tribunal must determine and adopt an objective approach to identify the real issue and object of the claim but in the Enrica Lexie case, the exact question was ‘whether the Marines enjoy immunity from Indian criminal jurisdiction’, making it not a incidental issue. Secondly, even if there is some connection between the exercise of jurisdiction and immunity, it shouldn’t mean that the linked questions come within the jurisdiction of the tribunal.
Thus, the tribunal’s order hasn’t brought much clarity as the clauses of the various acts are still open to interpretation and thus, the decision may be set aside later on.
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