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Is it the End of the Road for India in the Enrica Lexie Incident?

Although the legal phase of the matter is over, the Indian government should continue to exercise diplomatic pressure on Italy.

The award of the ad-hoc arbitral tribunal constituted under Annex VII of the United Nations Convention on the Law of Sea (UNCLOS), only the operative portions of which were publicly released last week, appears to have brought to an end, an eight year long tussle between New Delhi and Rome on the exercise of criminal jurisdiction over two Italian marines accused of manslaughter.

As many would remember, on February 15, 2012, two Italian marines Sgt. Massimiliano Latorre and Sgt. Salvatore Girone, deployed on board an oil tanker MV Enrica Lexie flying the Italian flag en route from Sri Lanka to Egypt, at roughly 20.5 nautical miles off the Indian coast, opened fire, killing two Indian fisherman on board an Indian vessel St. Antony after claiming to have mistaken them for pirates.

Soon after the incident, the Indian Coast Guard intercepted the Italian ship and directed it to shore.

The marines were then arrested and charged with murder by the Indian authorities. The Italian government, which claimed to have started its own criminal investigations, strongly contested India’s exercise of criminal jurisdiction over the marines and in any case argued that the marines, having been officially deployed with an anti-piracy mandate, enjoyed sovereign immunity.

Also read: Enrica Lexie: Did India Lose Case Against Italy Because of Lapses By its Own Supreme Court?

The incident and the detention of the marines greatly soured the relationship between Italy and India, with the former deciding to initiate arbitration proceedings under Annex VII of the UNCLOS.

Lotus 2.0?

The incident itself bore strong resemblance with another infamous high seas incident decades earlier that was the subject of a decision rendered by the permanent court of international justice (PCIJ). In the SS Lotus case, following a collision between a French steamer and a Turkish vessel on high seas, resulting in the death of eight Turkish nationals, France objected to Turkey’s attempt to criminally prosecute the captain of the French steamer for his role in the collision.

The SS Lotus. Photo: www.alchetron.com

The PCIJ, equating the Turkish vessel to Turkish territory, held that under customary international law Turkey was entitled to assert jurisdiction over the persons responsible for the collisions since its effects have taken place on Turkish territory. 

The decision thus laid down the foundation for the principle of objective territoriality. Many saw the decision as relevant to the Enrica Lexie incident, with Italy taking the place of France and India that of Turkey. However, there were some notable differences.

First, the Enrica Lexie incident did not take place on the high seas; rather it took place in an area beyond India’s territorial sea called the contiguous zone, where India exercises limited sovereign rights.

Second, the basis of the decision in SS Lotus was overruled through treaty law, specifically Article 97 of the UNCLOS which provided that in the ‘event of a collision or any other incident of navigation’ on the high seas, involving penal responsibility of any person in the service of the ship, only the flag state or state of which the person is a national would be entitled to assert penal jurisdiction.

Third, the captain of the French vessel SS Lotus was not an agent of the French state. In contrast, the two marines were members of the Italian armed forces specifically deployed as per Italian law framed pursuant to anti-piracy resolutions passed by the United Nations Security Council.

Each of these differences appears to have ultimately proved critical to the outcome of the case. The Tribunal dismissed the reliance placed by Italy on Article 97 of the UNCLOS to argue that only Italy as the flag state was entitled to assert jurisdiction over the marines, presumably since the incident did not take place on the high seas and/or did not involve collision or other incident of navigation but rather shooting across vessels.

The Tribunal also found that by firing upon St. Antony, Italy effectively, interfered with an Indian vessel’s freedom of navigation under Articles 87 and 90 of the UNCLOS, and was entitled to pay compensation to India in connection with the loss of life, physical harm and material damage to the Indian vessel St. Antony and its crew.

Also read: Enrica Lexie: In Setback for India, Tribunal Says Country’s Courts Can’t Try Italian Marines

Finally, although under the tribunal’s award India could exercise concurrent jurisdiction over the marines, as per the tribunal it was precluded from doing so on account of the immunity enjoyed by the marines as sovereign’s state officials exercising sovereign functions, presumably under the rules of customary international law.

On immunity

It is this last part of the award finding that the marines are entitled to sovereign immunity that has proved particularly controversial. Under customary international law, as also reflected in the commentary to the Draft Articles on Jurisdictional Immunities of State’s and Their property, states (including its organs) and its property, subject to limited exceptions, enjoy immunity from the jurisdiction of the courts of another state.

One significant exception recognised in international law to such jurisdictional immunity, is with regard to the commercial activities of the state and over their commercial assets  It is equally well accepted that the armed forces of a state, as an organ of the state, enjoy such jurisdictional immunity, for acts committed in their official functions. This underlying idea of sovereign immunity is also reflected in Articles 95 and 96 of the UNCLOS, which provide that “warships”and “ships owned or operated by the state on governmental non-commercial service,” enjoy complete immunity from the jurisdiction of any state other then the flag state.

Also read: India, Italy Spar Over Marines Issue Again as Ad-hoc Tribunal Reviews Enrica Lexie Case

However in the Enrica Lexie incident although the marines were indisputably members of Italian armed forces, they had been deputed on board a private Italian oil tanker, with an anti-piracy mandate. Thus according to India, Italy by deploying its armed forces on a private charter was acting in its commercial capacity, and the positions of the marines were equivalent to that of private armed security on board a vessel. However it is important to remember that, and as stressed by the Italians, the marines had been deployed under an Italian law framed pursuant to certain UN Security Council resolutions and had to adhere to rules of command, engagement, etc. 

The majority of the tribunal appears to have found favour with the Italian position, whereas the dissenting members appear to have accepted that the Italian state (or its organs) was carrying on commercial activity.

Accordingly the majority of the tribunal, after taking note of the commitment made by Italy during the arbitral proceedings to resume criminal investigation against the marines for the incident, directed India to take steps to cease its exercise of criminal jurisdiction over the marines.

The road ahead

Naturally, as a result of losing jurisdiction over the marines, the award has not been met with much enthusiasm in India, especially in the state of Kerala where the deceased fishermen hailed from.

Enrica Lexie. Photo: Wikipedia/CC BY 3.0

However contrary to the expectations expressed in some quarters, the award of the tribunal at Hague is final and not subject to appeal in terms of Article 11 of Annexure VII to the UNCLOS read with the agreed rules of procedure. As an international law abiding nation, the Indian government has correctly decided to abide by the ruling of the tribunal and its application to the Supreme Court should be viewed in this context.

Having said that, the Indian government’s role in this matter is far from over. Although the legal phase of the matter is over, the Indian government should continue to exercise diplomatic pressure on Italy, to ensure that the marines are subjected to a fair trial in Italy for their roles in the incident.

The government must also ensure that the compensation to be agreed with Italy, in terms of the directions of the tribunal, accurately reflects the material and moral loss caused to St. Antony and its crew. In the event no agreement on compensation is reached diplomatically between New Delhi and Rome, expect another round before the arbitral tribunal.

Jay Manoj Sanklecha is a lawyer specialising in international law. Views are personal.