Enrica Lexie Incident (Italy V. India)

Case Name: Enrica Lexie Incident (Italy V. India)

Court: Permanent Court Of Arbitration

Citation: Case No. 2015-28, Award (May 21, 2020)

Introduction:

The Enrica Lexie encounter, which took place in February 2012 off the coast of Kerala, India,  triggered a protracted and multifaceted legal and diplomatic confrontation between the Italian  Republic and the Republic of India. Substantively, the case involved the contentious issue of the  jurisdictional power to try two Italian Navy marines, Salvatore Girone and Massimiliano Latorre,  who were on board an Italian-flagged oil tanker MV Enrica Lexie and were accused of causing the  death of two Indian fishermen through shooting them. The core conflict was the geographical locus  of the occurrence and, consequently, which nation had the rightful jurisdiction to conduct legal  proceedings against the accused marines.

Parties Involved:

The primary parties involved in this international legal dispute were the Republic of India and the  Italian Republic. The two Italian Navy marines, Salvatore Girone and Massimiliano Latorre, were  the central accused individuals. Tragically, the two Indian fishermen who lost their lives were  Valentine (also known as Gelastine) and Ajeesh Binki. Their families were represented in the legal  proceedings in India by various lawyers and legal representatives, advocating for justice and  compensation for their loss. The United Nations, particularly through the Permanent Court of  Arbitration (PCA) at The Hague, played a crucial role in facilitating the eventual resolution of the  dispute between the two nations.

Dispute and Procedural History:

The dispute broke out immediately after the February 2012 shootout in which the two Italian  marines, who were aboard the MV Enrica Lexie on anti-piracy patrol, allegedly killed two Indian  fishermen. India asserted jurisdiction over the incident since it occurred within its contiguous zone,  approximately 20.5 nautical miles from its coast. The two marines were arrested by Indian  officials, who initiated legal proceedings in India. Italy had a vehement objection to India’s  jurisdiction, insisting that the incident had occurred in international waters beyond India’s territorial jurisdiction. Italy invoked the principle of flag state jurisdiction, arguing that because  the ship was an Italian-flagged ship and the marines were in the line of duty, Italy initially had the  right to prosecute them. This fundamental controversy over jurisdictional authority led to a  protracted judicial standoff, with Indian courts questioning the legality of the MOU, diplomatic  negotiations, and ultimately the institution of international arbitration proceedings by Italy under  the United Nations Convention on the Law of the Sea (UNCLOS) in 2015.

Facts:

On a fateful February day in 2012, off the coast of Kerala, India, two Indian fishermen perished  after being shot at by the Italian-flagged oil tanker MV Enrica Lexie. Two Italian Navy marines,  Massimiliano Latorre and Salvatore Girone, were on board the vessel during the incident as part  of an anti-piracy security team. India maintained that the incident occurred within its contiguous  zone, approximately 20.5 nautical miles from the shore. Italy maintained that the incident was  occurring in international waters. The authorities then detained the two marines, and a diplomatic  and legal crisis ensued between the two nations. The subsequent years have witnessed a series of  legal disputes within Indian courts, diplomatic negotiations to break the jurisdictional stalemate,  and ultimately, the initiation of international arbitration proceedings by Italy under UNCLOS.

Legal Issue:

The primary legal issue before the Permanent Court of Arbitration (PCA) was to finally decide  which state, India or Italy, had the rightful jurisdiction to prosecute the Italian marines. This  entailed a careful reading and understanding of relevant principles of international law, particularly  those in the United Nations Convention on the Law of the Sea (UNCLOS). The court was required  to consider India’s case based on the location of the incident in its contiguous zone and Italy’s  responsive arguments founded on flag state jurisdiction and state immunity principle for acts  committed by state officials in their duty.

Arguments by the plantiff (India):

India’s case was based on the contention that the Indian fishermen had been shot in its contiguous  zone, a sea area within which lies outside of its territorial sea but over which it has certain  sovereign rights, including those relating to security. India relied on its internal law, namely the  Indian Penal Code (IPC), which, due to Article 245 of the Indian Constitution, extends the operation of its provisions to crimes within Indian territorial waters and adjacent zone, as an  exercise of legislative authority over its territory of the Parliament. India asserted that the murder  of unarmed fishermen was a serious criminal offence that unambiguously came within its  jurisdictional competence in view of where the incident had taken place. Further, India appended  that it had the right and obligation to ensure the safety and security of its own nationals within its  maritime areas.

Arguments of the Defendant (Italy):

The case for Italy was premised on flag state jurisdiction and official acts of state immunity. Italy  argued that as MV Enrica Lexie was an Italian-registered vessel, it had inherent jurisdiction over  all events that occurred onboard, particularly where its military officers were in the course of their  official duties. This argument drew on customary international law and the substance of Article 97  of UNCLOS, that addresses penal jurisdiction in the case of collisions or other navigational  incidents on the high seas, although Italy extended the same principle to the situation of the  contiguous zone. Second, Italy invoked the doctrine of state immunity, arguing that the marines  were members of the Italian Navy, engaged on an officially recognized anti-piracy mission, and  their actions should be regarded as acts of the Italian state, which shields them from foreign  tribunals. Italy’s argument was also supported by Article 10 of the Italian Constitution, which states  that the” Italian legal system shall be consistent with rules of international law generally  recognized”. These include such rules as the flag state jurisdiction and the state immunity  principles.

The Permanent Court of Arbitration (PCA) conducted a thorough review of the arguments  advanced by India and Italy in the context of the United Nations Convention on the Law of the  Sea (UNCLOS) and established principles of international law. The court accepted India’s  jurisdictional right under Article 33 of UNCLOS in its contiguous zone to address matters related  to its security interests. The PCA also recognized that the incident had indeed occurred within this  zone, thus laying a basis for India’s case. The tribunal however gave substantial weight to Italy’s  argument regarding the immunity of the officials of a state. It concluded that the Italian marines  were acting within the course of official activities as part of a state sanctioned anti-piracy mission.  Therefore, the PCA found that the marines were entitled to immunity from Indian jurisdiction  under the rules of international law, by virtue of being state agents on mission. In a bid to harmonize such otherwise conflicting principles of law, the PCA had argued that although India  had a basis of jurisdiction due to the location of the incident, the principle of state immunity, as  recognized under international law, prevailed over India’s right to prosecute in the case at hand.

Decision of the Court:

In delivering its decision in May 2020, the Permanent Court of Arbitration (PCA) five-judge panel  delivered a judiciously balanced judgment that tried to harmonize the competing claims of Italy  and India. The tribunal held that even if the incident occurred in India’s contiguous zone, and  thereby India acquired competence to exercise jurisdiction, the Italian marines would still be  entitled to immunity from prosecution in India because they were acting in their official capacity  on a state mission to combat piracy. The PCA thus held that India was not permitted to exercise its  jurisdiction to prosecute the marines. But the tribunal also ruled that Italy had breached its duty  under Article 2 of UNCLOS, wherein states are obligated to exercise their sovereignty in  accordance with international law, by failing to hold its marines responsible for the casualties. In  light of this, the PCA directed Italy to undertake to try the marines in its own criminal courts. Apart from this, the tribunal also ruled that India was due compensation for loss of lives and injury to  the fishermen and their families and that it was for India to pursue this with Italy. There was no  dissenting note on record.

Significance:

The Enrica Lexie case has profound implications on the interpretation and application of  international maritime law, and particularly on how coastal state jurisdiction of the contiguous  zone interacts with the principle of state immunity. The PCA ruling brought out the fact that  although coastal states are granted some sovereign rights in the contiguous zone, these are not  absolute and are to be balanced against other principles of international law, such as immunity of  state officials acting in an official capacity. The case also puts the complexity of adjudication of  incidents with military personnel on missions accepted by internationally recognized bodies into  perspective.

Ratio Decidendi:

The ratio decidendi of the Enrica Lexie case can be stated as follows: although a coastal state has  jurisdictional competence over events within its contiguous zone, the jurisdiction is ousted by the principle of state immunity where the individuals concerned are state officials working in the  public interest on a state mission, if the flag state undertakes to exercise its own jurisdiction so that  there is accountability.

Obiter Dicta:

Although collateral to the decision-making, the PCA’s observations on Italy’s duty under Article 2  of UNCLOS to be held liable for actions of its state agents even where immunity from the foreign  jurisdiction is granted can be construed as obiter dicta. Similarly, the tribunal’s direction to Italy to  retry the marines within its own jurisdiction and to negotiate with India on compensation were  consequential aspects of the judgment but not the key legal foundation for the determination of  jurisdiction.

After Effects of this Case India agreed to the judgment Following the PCA’s ruling and the  Supreme Court of India closed the criminal case against the Italian marines in India. This allowed  Italy to initiate its own proceedings against the two marines. The families of the slain fishermens  received compensation from the Italy government after the PCA’s ruling. The Enrica Lexie case  also stirred controversies and analyses by legal and diplomatic circles on the scope and reach of  state immunity in maritime incidents cases as well as the effectiveness of international dispute  settlement mechanisms to deal with complex jurisdictional disputes.

Conclusion:

Therefore, the Enrica Lexie case is a case of clear indication of the very complex legal and  diplomatic nuances involving maritime incidents on the high seas and solving them. The case  tested the limits of coastal state jurisdiction and its overviewing laws, the doctrine of flag state  jurisdiction, and the state immunity principle. The resolution through the Permanent Court of  Arbitration, striking a balance between India’s invocation of jurisdiction and respect for state  immunity and responsibility in the guise of Italy’s undertaking to prosecute, demonstrates the  applicability of international law and institutions to settle vexatious disputes among sovereign  states. The protracted character of the case also serves as a reminder of the challenge of reconciling  conflicting national traditions about law and the necessity of following imposed standards of  international law in seeking justice.

Reference(S):

Cases

• Enrica Lexie Incident (Italy v. India), Permanent Court of Arbitration, Case No. 2015-28, Award (May 21, 2020).

National Legislation

• Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
• Constitution of India, art. 245.
• Constitution of the Italian Republic, art. 10.

Books

• Robin R. Churchill & A. Vaughan Lowe, The Law of the Sea (3^rd ed., Manchester Univ. Press 1999).

Journal Articles

• Tullio Scovazzi, The Enrica Lexie Incident: Law of the Sea and Immunity of State Officials Issues, 19 Chinese J. Int’l L. 427 (2020).

News Reports

• Suhasini Haidar, India Accepts PCA Ruling in Enrica Lexie Case, The Hindu (June 27, 2020), https://www.thehindu.com.