This case arose out of an incident that occurred on 15 February 2012. This was approximately 20.5 nautical miles off the coast of India in the Indian exclusive economic zone (EEZ). It involved the MV Enrica Lexie. It was an oil tanker that flew the flag of Italy. Two Italian Marines from the Italian Navy were on official duty on board the Enrica Lexie at the time of the incident. They fired upon and killed two Indian fishers on board an Indian fishing vessel, St Antony. The MV Enrica Lexie and the Italian Marines arrested and held by India.
Issue of Jurisdiction
Italy challenged the detention before the High Court in Kerala in an attempt to protect the rights of its citizens. It argued that India had no jurisdiction to prosecute the case. This was because it occurred not in Indian Territorial Waters, but in International Waters. Italy quoted Article 97 of the UN Convention on the Laws of the Sea (UNCLOS) as follows: “In the event of a collision or any other incident of navigation concerning a ship on the high seas, only the flag state of that ship can launch penal proceedings.”
The state in which a ship is registered is known as a flag state. Flag states have exclusive jurisdiction over ocean-going vessels in the high seas (Article 217 UNCLOS).
But, India based its jurisdictional claims on the national laws. These laws confer jurisdiction to the Indian courts to try a person (including a foreigner) in respect of an offence committed on board a ship registered in India. This is mentioned in Sections 3 and 4 of the Indian Penal Code, 1860 and 188 of the Criminal Code). The claims by the Italian government were based on the provisions of UNCLOS. For example, Article 97 of UNCLOS “focuses on Penal jurisdiction in matters of collision or any other incident of navigation.”
According to this Article: “No penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag state or of the State of which such person is a national.”
A writ petition was filed by the Republic of Italy in the Supreme Court under Article 32 of the Constitution. It challenged the criminal proceedings against the two Italian marines in Kerala. The Court held that Article 97 of the UNCLOS cannot be extended to a criminal conduct of killing the two Indian Fishermen. Moreover, it said that Article 97 applies to high seas which are not a part of Exclusive Economic Zone or territorial waters.
The Court further held that the state of Kerala had no jurisdiction to investigate the matter. It reasoned that only the union government has jurisdiction over Contiguous zone. Thus, the investigation of the case handed over to the National Investigation Agency.
In July 2015, the case was taken by Italy to the International tribunal for the law of the sea (ITLOS). ITLOS is an independent judicial body under the UNCLOS. Finally, the case was referred by ITLOS to the Permanent Court of Arbitration (PCA). The PCA is an intergovernmental organization based in The Hague, Netherlands. A hearing was then given at PCA and an award was rendered.
Findings of Permanent Court of Arbitration
Recently, the Permanent Court of Arbitration held that India is entitled to receive compensation from Italy. It held by a 3:2 majority that the two Italian marines are immune to the criminal acts committed by them. It reasoned that the immunity of public officials is a well-established customary international law. India claimed that, even though the marines’ immunity is conceded, the ‘territorial tort’ exception from immunity is applicable in the present case because the suspected crime is ‘committed against Indian citizens on the Indian flagged boat. Thus, it attracts criminal laws of India.
On legal exception
The tribunal agreed with the stance of India on the prospect of a legal exception from “territorial tort“. But it disagreed that when the acts were committed, the marines had been on Indian territory. It also held that Indian has no jurisdiction over the Italian marines and was ordered to stop criminal jurisdiction over them.
Liability of Italy
The Court held Italy liable for breach of Article 87 and 90 of UNCLOS. It held that India is entitled to receive compensation. The compensation is in connection with “loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of the St. Antony.”
No Liability of India
Further the tribunal held that India is not liable for breach of Article 87 of the UNCLOS asking Enrica Lexie to change its course and detaining it at Kochi port after the incident.
The Court has given an invitation to both the countries to consult each other with a view to reaching an agreement on the amount of compensation payable to India. It also clarified that the tribunal must keep jurisdiction should either or both parties want to apply for a ruling from the Arbitral Tribunal in respect of quantification of compensation payable to India.
Lapse of the Supreme Court of India
The Indian Supreme Court did not have the opportunity to consider Italy’s defence of immunity. It requested the special court created by it to resolve this matter. That may have been a lapse on the part of Supreme Court. If the Supreme Court had taken it into account in its ruling on 18 January 2013 by a two-judge bench, it could have a persuasive effect on the tribunal’s award. Due to circumstances beyond its control, the special court formed by the Supreme Court has died a natural death without having to start the proceedings.
Besides, the Kerala Court had addressed the issue, stating that it was a private, unlawful, and criminal activity to shoot at fishermen, neither in defence of the State nor in defense of the vessel. Thus, the single judge bench held that there was no immunity for the two marines. The Supreme Court has unfortunately set aside the judgment of the High Court in Kerala on the issue of jurisdiction, which helped Italy to claim before the tribunal.
The conclusion arrived at by the tribunal is problematic as it refuses to understand that even though while on board the Enrica, marines may commit an act whose effects could be felt in India’s territory and that too without its permission.
Furthermore, if the argument of the tribunal –that ships cannot be assimilated with national territory of the flag state – is right, Enrica Lexie cannot be assimilated with the Italian territory as well to grant immunity to the marines. The Supreme Court thereby refused to draw a firm judgment on the rights of Marines, prompting the tribunal to find it a grey field.
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