“CASE COMMENTARY OF ENRICA LEXIE CASE”
Author: Manu Sharma
Symbiosis Law School, Pune
The Enrica Lexie incident shook both the countries. Mortified by the shooting of two fishermen by Italian Marines on board the oil tanker off its coast, where the citizens of India who concerned for their safety while at sea. Italy, on the other hand, was trying to protect its Naval officers with sovereign immunity as they claimed the incident to be an accident where the fishermen were mistaken for pirates. There was an overwhelmingly nationalistic response from the populace of both countries.
The legal dimensions of the case included the jurisdiction of India and the human rights of the marines. The presence of armed personnel on a commercial oil tanker, although a controversial issue, was not abnormal considering the grave threat and increasing incidents of piracy in the Arabian Sea. In this respect, Italian national laws also mandated that any such armed personnel should be officers of the Italian Navy. The repercussions of the incident were, however, beyond legal. As the legal proceedings continued in India, the diplomatic relations between the two countries were affected and Italy eventually proceeded to the Permanent Court of Arbitration under UNCLOS.
This paper is focused on some of the legal aspects of this case that were not discussed elaborately by either the Indian courts or the Arbitration tribunal such as the human rights perspective or the question of sovereign immunity. The researchers, in the end, do discover some international principles that if followed, would have altered the legal course of this case.
It was around four-thirty in the evening of 15th February 2012 when the two fishermen aboard the fishing boat St. Antony were shot dead 20.5 nautical miles off the coast of India. Several other fishermen had a narrow escape as they were sleeping on board. Of the 4 vessels that were found to be in the area at the particular time, The Indian Coast Guard and the Marine Rescue Coordination Centre, Mumbai narrowed down on an oil tanker. The shots were found to be fired by two Italian naval officers from the Italian oil tanker M.V Enrica Lexie. The tanker was traveling from Singapore to Egypt and had just left the Kochi port a day prior to the incident. Subsequent to the identification, the vessel was contacted and the Coast Guard requested the return of the vessel to join investigation relating to the incident. The captain of the vessel brought returned to Kochi Anchorage later that night. The two marines, identified as were arrested in the same day in lieu of the FIR filed against them at the Coastal Police Station, Neendakara, Kollam district in the State of Kerala.
Although killing of fishermen mistaken to be pirates has been on the rise in the past couple of years, the Enrica Lexie case, popularly referred to as the Italian Marines case, attracted unusual public and judicial scrutiny. Under domestic pressure of appearing strong, there was a severe derangement in the diplomatic relations between both the countries. Protests were held in both the countries; with people from Kerala demanding justice for the victims and the Italians demanding justice for their servicemen. A similar incident happened later that year in July where the US Navy’s Rappahannock took aim at a trawler killing one Indian fisherman. The main reason for such incidents has been the fact that a majority of merchant ships passing the Arabian Sea hug the western coast of India in order to avoid encounters with Somalian pirates. This trend has not only increased the cost of goods coming to India due to insurance expenses, it also disrupts the business activities of the fishermen community with the big ships coming close to the coastline.
The issue of jurisdiction was of utmost controversy as the incident did not take place in the territorial waters of India that extends up to 12 Nautical miles as per UNCLOS. Criminal proceedings were initiated in the state of Kerala against the Marines which were eventually stalled due to the writ petitions and appeals filed by Italy in the High Court of Kerala and the Supreme Court of India. Although the Special Court set up in Delhi pursuant to the Supreme Court judgment that established India’s Jurisdiction in the case completed their investigation in the incident, the trial never started due to the stay order obtained by Italy and the provisional measures prescribed by the ITLOS. Various points of International law and Indian municipal law were discussed in order to establish India’s jurisdiction.
This research paper does not concern itself with the widely discussed issue of jurisdiction in the incident. Instead, the focus is on a few other aspects that neither the Supreme Court nor the ITLOS bench concerned itself with in detail.
III. Critical Analysis
The following discussion highlights certain important developments in the legal arena, both domestic as well as international, in the context of criminal jurisdiction on high seas and immunities of state officials. Additionally, certain possible outcomes are suggested which might have been occurred if below- mentioned points were considered in the course of this case.
A. The Shooting Incident
Prior to discussing the jurisdiction of India over the two Italian marines for shooting the two fishermen, there is a preliminary question which did not come into picture in this case i.e. as to whether India violated the provisions of International Law by engaging in ‘Hot Pursuit’ of the Italian ship? As per Article 111 of the United Nations Convention on the Law of Sea (UNCLOS), the hot pursuit of a foreign ship can be undertaken by the competent authorities of the coastal state if they have a good reason to believe that the ship has violated the laws and regulations of that particular state. Moreover, it also states that if any foreign ship is within the zone which is contiguous, the pursuit can only be undertaken if there has been a violation of the rights for the protection of which the zone was established. In the present case, it is not a disputed fact that the Italian ship was in contiguous zone when they shot the two fishermen dead. However considering the fact the principle of hot pursuit in the contiguous zone can only be done under exceptional circumstances like to prevent the infringement of ‘customs, fiscal, immigration or sanitary law, the legitimacy of the actions of the Indian Coast Guards in pursuing the ship in this context is questionable.
B. The Claim for Jurisdiction
The foundational question on which the whole case is centered around is the prescriptive jurisdictional claim of both India as well as Italy. It is an undisputed fact that in the present case the cause of action was beyond the territorial jurisdiction of India and hence in the international waters. However, India still based it jurisdictional claims on domestic legislation which confers the power to the Courts in India to try a person (including foreigners) in respect of an offence committed on board a ship that is registered in India. When it comes to the International law, the legality of the India’s exercise of extra- territorial jurisdiction could have been justified by different international recognized principles of jurisdiction such as [a] the objective territoriality principle, [b] protective principle, [c] nationality principle, [d] passive personality and [e] universality principle, which are explained below:
- The Objective territoriality principle: Under this principle, a Sovereign state is recognized as to having the power to adopt a criminal law provisions that applied to crime that take place within its territory even if the perpetrator performs the act outside the borders of that country.
- The Protective Principle: It is a principle of International law that permits a Sovereign state to assert jurisdiction over a person whose conduct threatens the security of a state or obstructs the operation of its government functions outside its territorial borders.
- The Nationality Principle: This principle recognizes the power of a sovereign state to adopt a criminal system which governs the conduct of the sovereign’s nationals while outside of its borders. This principle is further categorized into three principles which are jus soli (right by birth on the soil), jus sanguinis (right of the blood) and jus matriomii (right of the marriage).
- The Principle of Universality: Refers to the idea that a national court may prosecute individuals for serious crime against International Law. This jurisdiction is solely based on the nature of the crime, without any regard to where the crime has actually been committed, the nationality of the alleged or convicted perpetrator, victim, or any other connection to state exercising such jurisdiction.
- The Passive Personality Principle: Under this principle or as it is called victim theory, a sovereign state is empowered in limited cases, to claim jurisdiction to try a foreign national for offenses committed abroad that affect its own citizens meaning criminal jurisdiction based solely on the nationality of the victim.
From reading the above- mentioned principle it can be seen that the common element underlying all these theories is the valid/ just state interest which is based on a ‘sufficient connection’ to the persons, property or acts concerned. The India could have claimed jurisdiction under these principles which were also enunciated by the International Court of Justice in the famous S.S. Lotus Case wherein the question was pertaining to the Turkey exercising jurisdiction over a crime committed by a French national outside turkey in the high seas. The case involves a collision between a French vessel named Lotus and a Turkish vessel named Boz- Kourt on the high seas resulting into the death of 8 Turkish marines. When the remaining survivors were brought to Turkey in French vessel, they were charged with the offence of manslaughter in Turkey. To this the French government protested, claiming that either the release of the Demons (officer guard of the Lotus) or the transfer of this case to the French Courts. When both parties agreed to submit it to ICJ, the court held that a ship in the high seas is assimilated to the territory of the flag state. This state is fully authorize to exercise its jurisdiction in the same manner it exercise its jurisdiction over its land, to the exclusion of any other state. The Court in this case, equated the Turkish vessel to Turkish territory and held that since the offence produced its effect on the Turkey vessel, the application of the Turkish criminal law cannot be challenged, even in context to the offences committed there by for foreigners. On the same line the shooting by the two Italian marines produced direct effect on the Indian vessel St. Anthony, killing two Indian fishermen and hence the precedence set in Lotus Case could have been pleaded.
From the other side, Italy relied on Article 92 of the UNCLOS that provides for the exclusive jurisdiction of the flag state on the high seas and in addition, the principle of Nationality strengthens the jurisdictional claims of Italy. Now, of course, both nations have their own legitimate national interest. But considering the dimensions of criminal jurisprudence, firstly, a trial conducted in India and punishment meted in accordance with Indian law would have served better victim satisfaction. Secondly, it is the general principle of criminal procedure that a trial should be conducted ordinarily at the place where the offence has been actually committee and thirdly, a trial conducted in a foreign land would violate the right of fair trial of the victim as they would be deprived of their right to participate. All these points justify the position of India in claiming the jurisdiction, in case, the contentions based on Lotus cases are not accepted.
C. The Conundrum of Immunity
The contentions of the Italian side for the immunity from any legal proceedings in India are two-fold: Firstly, the Sovereign functional immunity should be provided to the Italian marines because they were the naval guards and therefore functioning under the instruction of the Republic of Italy. This contention was rejected by the Indian Supreme Court in the absence of a status of force agreement between the Republic of Italy and India. But the same immunity will be available to the military personnel involves in a criminal proceeding in a foreign land still remains an unsettled question.
Secondly, considering a scenario where the Indian Supreme Court did not order to send back the marines and decided to go ahead with the contempt proceedings against the Italian ambassador, whether he could claim diplomatic protection under the Vienna Convention? India has incorporated the provisions of the said Convention into municipal law via enacting The Diplomatic Relations (Vienna Convention) Act, 1972. The opinion doing the rounds in Indian legal circles is that, since Italy has already invoked the jurisdiction of the Supreme Court under Article 32 of Indian Constitution, it may be considered as a waiver of the diplomatic protection which then won’t be granted to the Italian ambassador, though not express. Moreover, keeping in perspective Article 129 of the Indian Constitution which empowers the Supreme Court to punish for its own contempt, the Court seems to have had the legal weapon in its armor which it failed to recognize.
D. Human Rights Perspective
In analyzing how the ‘considerations of humanity’ are used in this case before ITLOS, it seems useful to recall that this case see Republics of Italy and India opposed with respect to the killing of two Indian fishermen and detention of two Italian marines. It is evident from the facts of this case that the ‘considerations of humanity’ could be invoked with respect to both procedural as well as substantial issues. Italy invoked these considerations to justify the necessity of the provisional measures it asked for, particularly the second one wherein they asked for the lifting of any restrictive measures on the personal freedom of the two marines. Their contentions particularly put weight on the risk of severe prejudices to the right of liberty and movement of the marines. Italy, in fact evoked the Saiga no.2 judgment and Arctic Sunrise Order to link them with the situations of the marines in the present case as firstly, the duration and circumstances of the custody and the conditions of bail imposed amounts to a breach of their fundamental rights guaranteed under the International Covenant on Civil and Political Rights to which both the countries are parties. Secondly, the marines have not been informed of the charges against them even after three and a half years since their first arrest which is clearly in violation of the principle of a fair trial. On the other hand, India not only objected to the invocation of considerations of humanity by Italy contending that their marines were treated humanely, but also raised the human rights issue of the families of fishermen who were killed in this incident.
Going by the considerations of humanity invoked by both the parties, it can be said that these are not just procedural arguments concerning only with the provisional measures, but it goes to the heart of the dispute involving a critical evaluation of the substantial standards that should be applied in such cases. This double invocation shows that considerations of humanity, which have played a significant role in adapting the law of the sea to the values attached to human rights, cannot by themselves provide solutions to all cases involving conflicting interests of the individuals. This is what makes this case different from those concerning the prompt release of vessels and ships and provisional measures. As it has been observed by Judge Paik “the most critical difference in is a difference in terms of the gravity of the offences allegedly committed by the accused”
The case also points out the limitations of ‘considerations of humanity’ in addressing the disputes related to the law of the sea. This might work well in cases involving a situation where the rights of only one party is to be considered. However, when the rights of two opposing sides, each of which claims these considerations, it becomes a difficult task to strike a balance between considering and balancing such considerations of humanity. In fact, it does not by itself allow the judge to operate a balance between different human being and their interest involved in the case.
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 Nation 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 with respect to 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 a pima 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, 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. Suggestions & Recommendations
- There is a need for establishing strict rules that govern the use of weapons on pirates so that incidents like these can be prevented where local fishermen are mistaken for pirates.
- The root of the problem, the one that the international community did not pay heeds to, is the Somalian piracy. There is a need for international organizations to take stringent measures to control the threat of piracy in this rather dangerous region. This may require the international community to take steps towards the illegal fishing and toxic waste dumping activities since they are thought to be the root cause for the spread of piracy in the Somalian coast.
- Strict international rules should be framed regarding the employment of armed guards on commercial vessels. Some experts even suggest that the problem with the armed guards is the lack of control the master of the ship has on the guards. In such cases, the captain or master should be given more power to control the use of armed weapons.
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