“Enrica Lexie” Incident (Italy v. India), Provisional Measures

Abstract

The Order by the International Tribunal for the Law of the Sea (ITLOS or Tribunal) in the Enrica Lexie case has provided the first opportunity for judicial scrutiny of the dispute that has involved India and Italy over the past four years. The order was rendered following a request for the prescription of provisional measures by Italy, by Article 290(5) United Nations Convention on the Law of the Sea (UNCLOS) pending the constitution of an arbitral tribunal. In its Order, the ITLOS ordered both Italy and India to suspend all court proceedings and refrain from initiating new ones pending the decision of the arbitral tribunal.

Keywords- Law of the sea, extraterritorial criminal jurisdiction, security guards, suspected pirates, the killing of Indian fishermen.

Introduction

According to Italy, the Parties’ dispute arises from an incident that occurred on 15 February 2012 approximately 20.5 nautical miles off the coast of India involving the “Enrica Lexie”, an oil tanker flying the Italian flag, and India’s subsequent exercise of criminal jurisdiction over the incident and two Italian marines from the Italian Navy. According to India, the incident in question concerns the killing of two Indian fishermen onboard an Indian vessel named the “St. Antony”, and India’s subsequent exercise of jurisdiction. It is alleged that the two Italian marines aboard the “Enrica Lexie” killed the fishermen. On 11 December 2015, Italy filed a “Request for the Prescription of Provisional Measures under Article 290, paragraph 1 of the United Nations Convention on the Law of the Sea”.  

On 2 July 2020, having issued its Award to the Parties, the Arbitral Tribunal published the operative part of the Award on the PCA Case Repository. Following the Rules of Procedure, as amended by Procedural Order No. 7, the Parties were provided with the opportunity to consider whether any parts of the Award should be designated as containing “confidential information”. On 10 August 2020, the Award, with certain redactions made at the request of the Parties, was published on the PCA Case Repository.[i]

Background of the case:

In the Arabian Sea on 15 February 2012, two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots allegedly fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code. The jurisdiction over the event is contested by Italy and India with Italy seeking provisional orders from the International Tribunal for the Law of the Sea compelling India to cease prosecutions and release the Italian marines held in custody until the UNCLOS Arbitral Tribunal can determine which nation can exercise jurisdiction.[ii]

Facts :

By written notification dated 26 June 2015 comprising a statement of the claim and the grounds on which it is based the Italian Republic, instituted proceedings against the Republic of India, before an arbitral tribunal to be constituted under Annex VII of the United Nations Convention on the Law of the Sea. The dispute an incident that occurred approximately 20.5 nautical miles off the coast of India involving the MV Enrica Lexie, an oil tanker flying the Italian flag, and India’s subsequent exercise of jurisdiction over the incident, and over two Italian Marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre, and Sergeant Salvatore Girone, who were on official duty on board the Enrica Lexie at the time of the incident (the “Enrica Lexie Incident”). 

Italy requested that India adopt and implement provisional measures within two weeks. More than two weeks have elapsed since this request was made and the provisional measures have not been implemented by India. On the contrary, at a hearing before the Indian Supreme Court on 13 July 2015, the Indian Government refused to support the implementation of provisional measures sought by Italy.

In light of these developments, under Article 290(5) of the Convention, Italy requests the International Tribunal for the Law of the Sea. On the ground that Italy will suffer serious and irreversible prejudice to its rights under UNCLOS if, notwithstanding the submission of the dispute to arbitration under Annex VII of UNCLOS, India is allowed to continue exercising its jurisdiction over the Enrica Lexie Incident and the Italian Marines, all the while subjecting the Italian Marines to restrictions on their liberty, security, and movement.

Issues

This case goes to the core of issues of jurisdiction over vessels on the high seas. Italy claims exclusive jurisdiction as a flag state and claims functional immunity for its marines as they were acting to protect Italian interests. India is claiming jurisdiction as the flag state of St Antony and the victim state in the incident. ITLOS has attempted to balance the competing rights of both states until the UNCLOS Annex VII Arbitral Tribunal can determine who has jurisdiction over the incident.[iii]

Related Provisions

Notification under Article 287 and Annex VII, Article 1 of UNCLO

Related Cases

1. Republic of Italy & Ors v. Union of India & Ors, Supreme Court of India Judgment of 18 January 2013
2. Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, at p. 298, para. 90(1)(b).
3. “Arctic Sunrise” (Kingdom of the Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, p. 230, p. 251, para. 98.
4. M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Provisional Measures, Order of 11 March 1998, ITLOS Reports 1998, p. 24, at p. 38, para. 41
5. Corfu Channel (the United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 4, at p. 22.
6. Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003, p.10, at p. 22, paras. 67-68.

Judgment

The Tribunal (1) by 15 votes to 6, prescribed, pending a decision by the Annex VII arbitral tribunal, the following provisional measure under art 290.5 of UNCLOS: Italy and India shall both suspend all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render; By 15 votes to 6, decided that Italy and India shall each submit to the Tribunal an initial report not later than 24 September 2015, and authorized the President, after that date, to request such information from the parties as he may consider appropriate.

The Tribunal found that a dispute existed between the parties concerning the interpretation or application of UNCLOS and that the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute.

The Tribunal also found that an extensive exchange of views had taken place and that the requirements of art 283.1 of UNCLOS were therefore satisfied. Although India argued that Italy should first exhaust its remedies in the local Indian courts, the Tribunal held that, since the very nature of the dispute between the parties concerned the exercise of jurisdiction over the Enrica Lexie incident, the issue of exhaustion of local remedies should not be addressed in the provisional measures phase.

 The Tribunal was of the view that art 290 of UNCLOS applies independently of any other procedures that may have been instituted at the domestic level and Italy was therefore entitled to have recourse to the procedures established in that article. If proceedings are instituted at the domestic level, this does not deprive a State of recourse to international proceedings.[iv]

Concepts Highlighted

Enrica Lexie’s case mainly focused on the issue protection of the merchant’s vessels from the interference of the coastal states in the matters related to jurisdiction while sailing in the maritime zones of the said state. United Nations Convention on the Law of the Sea (UNCLOS) is clear in respect to exclusive jurisdiction by the flag state but the convention is still unclear about the extension of sovereign rights granted to States within the contiguous zone and the Exclusive Economic Zone (EEZ).

Also, there is no clarity in regards to which state will exercise the prescriptive and enforcement jurisdiction over the different zones of the sea. India in the present was not able to establish its jurisdiction based on the relevant domestic law. But the same could have been justified by using the recognized principles of jurisdiction such as the objective territoriality principle, the protective principle, the nationality principle, principle of universality, and the passive personality principle.

The same was used in the Lotus case, which is considered as good law and that under the passive personality principle, under which nations may claim jurisdiction to try an individual where actions might have affected nationals of that country. This case also highlighted the gross human rights violation from both sides, first concerning a fair trial and second in regards to families of fishermen who were killed. The need of the hour is to strengthen the Indian legal principles relating to extraterritorial jurisdiction.

The case has discussed the legal and diplomatic problems faced when resolving the claims to jurisdiction. Although prima facie reading of the provisions of UNCLOS may appear to hold that a coastal State’s criminal jurisdiction cannot be exercised beyond the territorial sea or onto a foreign vessel, a jurisdiction might be justified in some cases since, by better analyzing the issue, ‘UNCLOS does not seem to have provided an ultimate frame of reference for every legal question’.[v]

[i] https://pca-cpa.org/en/cases/117/#:~:text=The%20’Enrica%20Lexie’%20Incident%20(,India)&text=It%20is%20alleged%20that%20the,the%20Law%20of%20the%20Sea%E2%80%9D.

[ii] https://sherloc.unodc.org/cld/case-law-doc/piracycrimetype/2015/the_enrica_lexie_incident_italy_v_india.html

[iii] https://sherloc.unodc.org/cld/case-law doc/piracycrimetype/2015/the_enrica_lexie_incident_italy_v_india.html

[iv] https://law.nus.edu.sg/cmlcmidatabase/enrica-lexie-incident-italy-v-india

[v] https://ilsijlm.indianlegalsolution.com/case-commentary-of-enrica-lexie-case-manu-sharma/