This article is written by Abhishek Kurian from National Law University, Odisha. This article deals with the Enrica Lexie Case while entailing the critical issues.
If you have been following the news lately regarding India’s diplomatic relations, there is a good chance that you would have come across the Enrica Lexie case. It was a very important case that even led to a strained relationship between India and Italy for quite long. The events of the incident took place in 2012, but the complicated procedure and the fact that it involved two international bodies delayed the process and the jurisdiction of the final decision has now been transferred to Italy which is still awaited. Let us understand all the necessary facts and legal concepts that would help us in understanding the entire case and its events so far.
Maritime Zones of a country
Before we move onto the facts and events of the case, a concept that is essential to understand the dispute, in this case, is the different maritime zones of a country. All these zones are measured from the baseline of a country which is the coastline or low-water line recognized by the respective coastal state. These are defined under the Territorial waters, Continental shelf, Exclusive economic zone and other Maritime zones Act, 1976 (See here).
The territorial sea is a zone that measures 12 nautical miles from the baseline of a country, and the coastal state has jurisdiction over the entire territory, including the resources found in the sea or sea-bed. A foreign ship is allowed to travel here without committing trespass.
The contiguous zone of a country extends to 24 nautical miles from the baseline of the country. So, it includes the 12 nautical miles of territorial sea but has an extra coverage of 12 nautical miles after the territorial sea, before the high seas. The coastal state has the jurisdiction over the contiguous zones regarding any laws that it has set for foreign ships in the area.
Exclusive Economic Zone
This is an area of 200 nautical miles measured from the baseline, and as the name suggests, the coastal state has exclusive rights to use and exploit all living and non-living resources present in the sea.
Although unlike the other zones discussed above, the coastal country has no right to stop or restrict the movement of foreign ships.
The area beyond the EEZ is referred to as the high seas. This is an area where any country would have the right only to explore or make scientific discoveries. This area is not under the jurisdiction of any state, and international bodies would take over, in case of any dispute.
Background of St. Antony
On 15th February 2012 an Indian fishing vessel called ‘The St. Antony’ (or boat) carrying 11 men, was engaged in fishing, which was within the Exclusive Economic Zone of India, 20.5 nautical miles from Kerala’s coastline to be precise.
Background of Enrica Lexie
There were two Italian men on board an Italian oil tanker ship called the Enrica Lexie. These two men were part of their tanker that was travelling from Sri Lanka to Egypt. It contained a Vessel Protection Detachment (hereinafter referred to as VPD) which was an Italian contingent to protect the ship from pirates in the sea, as piracy was prevalent in that area.
Events in Chronological order
As the VPD saw this fishing ship, confusing them to be pirates, used their warning alarm implying that they must turn around. This was followed by the VPD opening fire on the ship which they claim were warning fires. The firing led to the death of two fishermen, Valentine Jelastine and Ajeesh Pink. Both of them died on the spot. The open fire also endangered the lives of the other nine fishermen and caused some damage to their fishing ship as well.
This was informed to the Local Guard and thereby the Indian Coast Guard and the Indian Navy looked into the matter and they found the Enrica Lexie ship. Upon questioning, they confirmed that it was the ship that was involved in the firing and hence they were asked by the Indian Coast Guard to return to the Indian Coast for investigation of the killing as is necessary by the standard procedure. The captain of the ship agreed to the investigation and took the ship to the Kochi Port.
It was also stated by Italy that the Indian troops indulged in trickery and coercion by use of aerial and Coast Guard units to restrict the movement of the Enrica Lexie and bring her to the coast. Although India has denied any such act on their part and states that this was solely part of their duty to maintain the maritime security of the country, this remains to be a question of merit that is not yet decided.
Upon reaching the coast, there was a thorough investigation of the incident and recording of evidence done by the interrogation of the crew. The Kerala Police established that the head of the VPD, Sergeant Massimiliano Latorre and another member of the VPD, Sergeant Salvatore Girone were involved in the firing and so were asked to leave the ship. They were both members of the Italian armed forces and were performing official duties as marines.
On 19th February, both of them were charged under various offences under the Indian Penal Code, 1860 that included Murder, Attempt to murder and were arrested. There was also the risk of death penalty for both the marines.
As soon as the Italian government came to know of these incidents, it took actions to investigate the events. While there was a criminal investigation that was initiated in Rome, an admiral of the Italian Navy was sent to India to deal with the incident and to complete their investigation as well.
This led to a series of cases filed in different forums, which mainly dealt with questions of jurisdiction and authority. They are as follows:
Kerala High Court- Massimiliano Latorre and Ors. vs.Union of India
As discussed, there were charges initiated on both the Marines and thereby they petitioned in the Kerala High Court to quash the charges for the offences against them. This is an important case in the entire ‘Enrica Lexie’ incident as it discussed the substantial and procedural merits of the case in great detail. Many provisions of the United Nations Convention on the Law of the Sea (UNCLOS Act) were also used in the proceedings.
Note for the readers- All the sections of the UNCLOS Act that have been mentioned in the Article have been defined, but for the readers may refer to the Section here.
The case (See here) was in the form of a writ petition which involved three petitioners-
- Chief Master Sergeant Massimiliano Latorre,
- Sergeant Salvatore Girone, and
- The Republic of Italy, represented by Consul General Giampaolo Cutillio, an official representative of the highest-ranking.
The major Respondents included:
- Government of India
- State of Kerala
Issues to be answered
- Should the Italian Marines be tried for Murder of the two fishermen under the jurisdiction of the Indian courts according to IPC?
- Should the Italian marines be entitled to sovereign immunity?
Arguments of the Petitioners
- The Petitioners argued that they were not involved in the act of murder or attempt to murder as opposed to the allegations against them. They were part of the security forces and they saw the fishing vessel as an attempted piracy attack. They sounded alarms, horns, and flashlights as a warning to the people in the vessel. The master also sent out a security signal which would intimate the navies of many including India. Despite that, they did not make a change of direction.
- They also argued that the incident took place in the contiguous zone/ Exclusive Economic Zone, which was far beyond the territorial water of India.
They stated that according to Section 4 of IPC, India had the jurisdiction for only those criminal matters that were in the territory of India and its jurisdiction outside the territory was limited to Indian citizens. Since the two marines were foreign citizens, their offences should ideally not be tried by Indian courts.
- The petitioners also argued that as a nation they had the freedom of navigation according to Article 87 1(a) of UNCLOS 1982, which would give them the freedom to travel the seas without the interference of any other sovereign body.
- Additionally, Article 97 and Article 58 of the UNCLOS, also made the jurisdiction of India invalid as it clearly stated that for any matter concerning a foreign ship or it’s master, the coastal state (here India), would not have the right to impose any penal proceedings on the ship. Also, since there was an investigation started in Italy as well there must not be the need of proceedings in India.
- Lastly, it was pleaded by them that since both the marines were on official duty of the State, they must be given functional immunity from the offences according to the provisions of UNCLOS.
- They prayed the court to issue a petition that would render the charges to be declared null and void.
Arguments of the Respondents
- It was argued by the Respondent that the master of the ship had not cared to inform the Coast Guard regarding the incident until the Enrica Lexie was directed by the Indian Coast Guard to proceed to the port. This implies that they had travelled for 3 hours, covering 39 nautical miles after the incident occurred without informing any authority about the incident. Additionally, they also failed to report the incident to the International Maritime Bureau, which is a breach of mandatory procedure.
- Secondly, it was argued that the act of flashing a searchlight as a warning was not useful as in broad daylight it would not have been visible at all.
- It was also argued that the firing by the VPD was unnecessary and usually should be resorted to as the last option for self-defence. They should have taken other action to ward off any dangers, as there was a reasonable distance of 100m between the oil tanker and the fishing vessel. Also, there was no attempt made by the people in the fishing vessel to enter the tanker, which could lead to any imminent danger.
Ideally, they should have a response plan to deal with piracy and gradually increase the use of force, which was absent in this case. The failure to follow such a standard procedure resulted in a breach of anti-piracy measures.
- It was also stated that the Kerala coast was free from piracy and fishing vessels were frequent in that area which implies that the fishermen were killed mercilessly.
- 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.
- It was further argued that the position of the tanker was 20.5 nautical miles from the baseline of India which means that the incident occurred in the territorial water and not in the high seas. Therefore, as contended by the Petitioner, Article 97 of UNCLOS would not apply in this given case.
- Lastly, the petitioners would not be entitled to any immunity as they were under the duty for the commercial activities of a private company, and the defence of sovereign immunity applies only to those executing official duty for their country.
- It was prayed that their Indian jurisdiction must apply and the writ petition must be dismissed.
Judgement of the Court
The Court decided that regarding the first issue the Italian marines are liable to be subjected to the jurisdiction of the Indian Courts and can be prosecuted under the penal code of India.
The reason given was that the incident happened in the EEZ of India which is the coastal region, in this case, as under the law of the sea it has the right to maintain law and order of the coastal region. If any person of their nationality is affected, it has the right to interfere in its legal matters. They opposed the petitioner’s arguments by saying that the freedom of navigation is not absolute and since the fishermen were shot dead by the Italian marines, they have interfered in the rights of others. The freedom should not, in any case, imply that India must look at the entire incident as a mute spectator.
For the second issue, it was decided by the court that the Italian marines would not be entitled to sovereign immunity. The following reasons were given by the court.
Firstly, the Italian marines were not discharging any official duty of their country as they were employed for the protection of the vessel which belonged to a private person. This vessel was engaged in commercial activities and was not related to any duty given by the Republic of Italy.
Secondly, despite the fact that Sovereign Immunity is recognised by the Indian law, the circumstances for such immunity to apply are not present here. This was a case of brutal murder as they did not follow any guidelines or norms that would apply in the case of threat of piracy and it cannot be let off as an act of sovereign function.
The petitioners were asked to deposit a sum of Rs 1,00,000 to both the respondents.
Supreme Court’s Judgement
The Supreme Court of India firstly, set aside the Kerala High Court judgement saying that it did not have any jurisdiction to deal with the issues of the Italian marines even regarding the investigation of the incident. The court further directed for a special court to be formed to conduct the proceedings of this case. (see here)
Main Reasons for the judgement
The reasons given were as follows:
- It was established by the arguments in the proceedings that the incident occurred 20.5 nautical miles from the baseline of India which is not part of the territorial waters of the coast of Kerala. This implies that the Police force of Kerala and the Courts of Kerala should not have any jurisdiction over the case.
While the Respondents argued that since the incident occurred within the contiguous zone of India, there could be an extension of the jurisdiction of Kerala Police and courts by Section 188A of IPC and Code of Criminal Procedure, 1973 till the EEZ and CZ.
This was countered by stating that the provisions in the IPC and CrPC would not give Kerala the jurisdiction to try the offence but would give this jurisdiction to the Union of India.
Likewise, the State of Kerala did not have the right to investigation either as the same right would be given to the Union of India itself.
It was also stated that the two people who were accused were marines, part of the Royal Italian Navy and hence a dispute regarding their activities is a concern for the Republic of Italy. As it was recorded, Italy had started investigations and proceedings as well regarding their act which could have given them a punishment of 21 years of life imprisonment. This means that the issue is between two Nations and in such a situation, Kerala just happens to be a unit of India and hence does not have any rightful jurisdiction.
- It was further argued by the Respondents that Section 2 of the IPC provided that the IPC would apply all offenders within the State of India. This would imply that since the offence took place within the territory of India, the provisions of India would apply instead of the provisions of UNCLOS.
This was countered by the petitioners stating that the Indian Penal Code was enacted in 1860, which was much before the establishment of the UNCLOS Act. India had also become a signatory of UNCLOS and so must adhere to its provisions, and all of its actions regarding the laws of the seas must be compatible with the UNCLOS.
It was added that before the establishment of the UNCLOS Convention, the laws for the seas were governed by different Acts that included the Maritime Zones Act, 1976. The laws in these Acts are also in harmony with the provision of UNCLOS.
- It was finally argued that by the reading of Article 97 and Article 100 of UNCLOS it could be established that the State of Kerala did not have the jurisdiction because the above provision of UNCLOS provided that there should be no interference by the Coastal state in an incident which involved foreign navigation incidents such as these, even with regard to the investigation. Only the flag country (the country whose flag was displayed on the ship) had the right to investigate and conduct proceedings.
Article 100 also provides for cooperation between the signatories to tackle piracy in the area. This article would apply to the given facts and Union of India could proceed with the investigation of the case.
Hence, the Union of India was directed to establish a Special Court to try the case and conduct the proceedings in accordance with the Indian provision but more importantly the UNCLOS 1982.
Post this judgement, India also filed charges under the Suppression of Unlawful Charges (SUA) against the Italian marines in January 2014. Sergeant Latorre was also sent back to Italy because of certain health reasons. The Supreme Court then asked both the parties to sort out this issue of the SUA charges. There were deliberations regarding the same for a long period of time and Italy was also strongly protesting against the same as this would imply that there was an act of terrorism by Italy whereas their intention was only to protect their ship from pirates. The Ministry of External Affairs along with the Ministry of Law and Justice in India also stated that the SUA charges would not be applicable and hence these charges were dropped by India against the Marines.
Italy, unhappy with the Indian proceedings and with an attempt to cease the Indian jurisdiction, moved to the International Tribunal for the Law of the Sea (ITLOS). They prayed to the tribunal to direct that (See here):
- India should cease their jurisdiction over the Enrica Lexie incident and must refrain from taking any action against the two marines involved in the incident.
- India must not make any restrictions toward the freedom and movement of the marines and must allow Sergeant Girone to go back to Italy and let Sergeant Latorre to stay in India during the time of the proceedings.
India pleaded the tribunal to reject the requests as well but the final decision of the ITLOS was as follows-
Both Italy and India must suspend all their existing proceedings and must avoid starting any new ones as well, which would affect any decision that the arbitral tribunal may provide.
Both the States must also give an Initial Report of the events.
Permanent Court of Arbitration, Hague, Netherlands
This matter was finally heard in the PCA, Hague, Netherlands. The proceedings were as follows (see here):
- Italy pleaded that the tribunal must establish its jurisdiction over this case completely and must dismiss India’s claims that objected to such jurisdiction.
- It further argued that while conducting its proceedings the use of Act that governed the laws of the sea like Territorial waters Act, EEZ, other Maritime Zone Acts is invalid and is in violation of the following articles of UNCLOS-
Article 33- Exceeded its right over the Contiguous zone as the Coastal State by imposing penalties and detention of the Italian marines.
Article 56- India disregarded the rights of Italy concerning the Exclusive Economic Zone and exceeded its jurisdiction to the area beyond that by conducting the proceedings for the Italian marines.
Article 58- All states have the right to international lawful use of the Exclusive Economic Zone concerning shipping and such a right has been infringed by the actions of India.
Article 87- All states must be allowed the free movement of their ships in the high seas and the provisions of the UNCLOS conventions must be followed with respect to such movement.
Article 89- India as by its proceedings and investigation invoked its sovereignty and that is a breach of the UNCLOS provisions.
- Article 92 of UNCLOS was violated as the right to jurisdiction of any events related to the Enrica Lexie should lie with Italy, being the flag state.
- India did not cooperate with the Italian marine’s action to tackle piracy and also abused its rights and jurisdiction by asking the Enrica Lexie to change its path, thereby violating Article 100 of UNCLOS.
- There has also been a violation of Article 97 by conducting proceedings regarding the offences of the Italian marines by investigating the events and also by the detention of the ship.
- Lastly, by arresting and detaining both the Sergeants, India has committed a breach of the provisions of UNCLOS by extending its sovereignty over another country.
- It was also requested by the Republic of Italy that the tribunal must declare that :
- India must stop all of its proceedings and any other legal actions that tend to violate the provisions of the UNCLOS.
- India must make changes to bring back the situation normal with respect to the two Sergeants.
- India must pay compensation to both the sergeants for the suffering that was caused to them by way of arrest, detention and court proceedings.
India requested the tribunal to declare that :
- The tribunal has no jurisdiction over the present case or any of the claims made by Italy.
- Dismiss all the submissions made by Italy.
- And that India’s counter-arguments are valid.
- Further, it was requested by India to judge and declare that by firing the fishermen Italy had violated the following provision of UNCLOS:
Article 56- India’s sovereign rights were violated by Italy’s actions in the seas exceedings its rights by firing.
Article 58- Disregarded India’s rights as the coastal state in the Exclusive Economic Zone.
Article 87, 88 and 90-Violation of India’s freedom of navigation and right to use its Exclusive Economic Zone.
- Lastly, India requested the tribunal to order Italy to compensate for all the violations of the provisions in the UNCLOS.
Award by the PCA
- The tribunal said that it had the jurisdiction of this matter considering that both India and Italy were signatories of the UNCLOS 1982.
- The tribunal found that Italy had acted in breach of the provision of UNCLOS by infringing India’s right to freedom of navigation in the seas by firing and restricting the movement of St. Antony.
- Italy was liable to pay compensation for the loss of life of the two fishermen, for endangering the fishermen on the boat and also for damaging the fishing vessel.
- India was not in violation of Article 87, Article 92 or Article 100 of the UNCLOS 1982.
- India had not abused its powers given by the UNCLOS.
- The tribunal also declared that India must cease all its proceedings and does not have the jurisdiction over the matters of this case.
- The Italian marines must be given immunity for the acts that they have committed.
- The tribunal found that Italy was not in violation of Article 56, Article 58 and Article 88(Refer above).
Application to Supreme Court
India moved to the Supreme Court to file for an application to end all proceedings that were initiated regarding the Enrica Lexie case, with compliance to the decision of the Permanent Court of Arbitration
All matters regarding the merits of the case and punishment of the marines would now be handled by the Italian Courts.
We see how India has finally lost its jurisdiction of this 8-year old case but has not completely lost on the merits of the case as Italy is still liable to pay compensation to India for the damage caused by the firing of the two fishermen. Although the decision regarding the compensation is final, there is still a judgement left regarding the penalty for the Italian marines by their local jurisdiction.
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