Enrica Lexie Case

Introduction:

This is a case on the incident that took place on 15^th February 2012, off the coast of Kerala. First, the Courts in Kerala took cognizance of the matter, then the Supreme Court of India took over, then the International Court of Justice (ICJ) passed the matter on to the Permanent Arbitral Tribunal under the United Nations Convention on the Law of the Sea (UNCLOS)[1]. Representatives of over 160 nations got together in this conference to propose the laws for territorial rights and other matters related to the oceans connecting the world. The UNCLOS treaty took 9 years to frame via the consensus method, taking into consideration the smallest issues of each country and finally presenting the laws of the sea that over 160 countries have ratified.[2]

It took 8 years to come to a settlement, and the final award was very recently declared to the parties on 2^nd July 2020. Its operative parts were made available to the public later on 10^th August 2020[3]. The incident in the subject was that two marines on board an oil tanker hailing the flag of Italy mistook a fishing boat for a pirate ship and opened fire. They ended up taking the lives of two native fishermen from Kerala and damaging the fishing boat called ‘St. Anthony’. The oil tanker in question ‘Enrica Lexie’ (hence the name of the case) was ordered to dock ship in India so that the culprits could be questioned. Massimilano Latorre and Salvatore Girone were detained further for prosecution under the Indian laws.

This caused many disputes between the governments and ambassadors of India, Italy and even the European Union. There were different claims as per the jurisdiction over the matter. Even though the incident occurred just 20.5 nautical miles off the coast of Kerala, making it part of the Indian Contiguous Zone as well as EEZ, the law of the sea claims that India does not have criminal jurisdiction over that spot. Even though India has ratified the treaty, the claim remained that UNCLOS does not have jurisdiction over said matter either, because of preexisting customary international laws, according to which it is in the Indian jurisdiction due to the damage done to the property of an Indian national, and lives lost of Indian citizens.

Chronology of Events

On 15^th of February 2012, ‘St. Anthony’ an Indian fishing vessel carrying Indian nationals was returning home to Kerala from a fishing expedition in India’s EEZ, it crossed paths with the Italian oil tanker named ‘M V Enrica Lexie’. The ship carrying a crew of 34 people including 6 Italian marines was travelling from Singapore to Egypt. Captain of St. Anthony, Freddy Louis claims that they faced continuous firing from the Italian ship for approximately 2 minutes, without any provocation. Two innocent fishermen on board the St. Louis, Ajesh Binki and Gelastine took bullets and were killed in this random attack, as proved by a post mortem conducted on 16^th February 2012 which declared the cause of death as murder.

Apparently, the Enrica Lexie did not report this incident as required by the Maritime Rescue Coordination Centre (MRCC), and continued to travel another 70km towards Egypt.[4] They only declared the shooting when contacted by the coast guard 2.5 hours later. Post this interception at Lakshadweep, they were directed to the Kochi port for further investigation. The Italian foreign minister of the time claimed that the local police had tricked the shipmaster to get the ship into Indian waters. This claim was later rejected by the Indian foreign minister.

The two Italian marines believed to have fired the shots were arrested and booked for homicide under section 302 of the Indian Penal Code[5] by the Kerala Police. On 23rd February 2012, the Kerala High Court admitted a petition by the Italian Consul General in Mumbai claiming that neither the Kerala police nor any other court in India had any authority to conduct any investigations since the ship sailed under the Italian flag. They prayed for a stay in all further proceedings. The High Court granted one week to the Kerala government and the central government of India to file a response. During this week, the High court advised the Italian government and the marines to cooperate with the ongoing investigations as the Kollam Sessions Court had extended the police custody of the marines for a week.[6]

On the 4^th of September in 2012, Italy filed a petition in the Supreme Court of India with the aim to squash proceedings in Kerala, claiming that the soldiers are entitled to functional immunity. The Apex Court rejected this claim and dismissed Italy’s petition on 18^th January 2013, citing a lack of treaty on the said matter. In the said case, Justice Chelameshwaran was of the opinion that “sovereignty is not ‘given’ but it is only asserted. No doubt, under the Maritime Zones Act, Parliament expressly asserted sovereignty of this country over the territorial waters but simultaneously, asserted its authority to determine/alter the limit of the territorial waters”.[7] It was held that India chooses to rely on customary international laws instead of the limits set by UNCLOS, and would consider the contiguous zone as its territorial sea too. The Supreme Court also found that Kerala did not have jurisdiction over the waters beyond 12 nautical miles and hence called for the establishment of a special federal court to discuss this matter further. [8]

The marines were allowed to visit Italy in early 2013 and the government of Italy refused to send them back unless the death penalty would be taken off the table of options for punishment. The Italian ambassador was summoned to Delhi and after tense negotiations, the marines were returned to India without any promises about the result of the proceedings. This caused the resignation of the Italian foreign affairs minister of the time.

On 4^th of April 2013, the National Investigations Authority (NIA) of India took cognizance of the matter and filed an FIR charging the marines with murder, attempted murder, mischief and conspiracy.

The Government of Kerala, as well as the Government of Tamil Nadu, had each granted Rupees 5,00,000/- as Solatium to the family members of the deceased fishermen. Subsequently, the family members along with Freddy J. (the owner of St. Anthony) filed for civil claims against the owner of Enrica Lexie. Around the same time, the Italian government also offered to pay the relatives of the victims a sum of Rupees 1,00,00,000/- as a form of outside court settlement. The Apex Court heavily criticised this move and did not allow this transaction under Article 142 of the Constitution of India[9].[10]

In January of 2014, India decided to prosecute the marines under the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention)[11]. Italy heavily criticized this move of the Indian government trying to frame the marines under terrorism. Following the heavy backlash, India decided not to go down that road.[12] Consequently, on 7^th February 2014, the charges on the marines were reduced from murder to violence.[13]

Through the entire process, Italy maintained that India lacked the jurisdiction to try the Italian marines onboard a ship hailing the Italian flag, sailing in International waters in charge of the security of the ship.

Indian authorities, on the other hand, kept delaying the formalization of the accuses, which led Italy to seek help from the European Union (EU). The European Parliament in January 2015 showed its support for Italy by issuing an official resolution claiming that the human rights of the two Italian marines were being violated by India.[14] 

Fed up of the Indian procedural lags, Italy filed for Arbitration under Annex VII of the UNCLOS on 26 June 2015. On 21 July 2015, The Italian government also approached the ITLOS seeking status quo by asking that  “India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident and that India shall take all measures necessary to ensure that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.”[15]

India very strongly opposed every claim made by Italy, and no state got exactly what they wanted from the ITLOS. On 24^th August 2015, by majority opinion [15:6], the tribunal ordered both parties to stop all ongoing proceedings in the matter and to not start any new proceedings in the matter due to the risk of jeopardizing the due procedure to be carried out under the arbitral tribunal to be formed via Annex VII. They also ordered both India and Italy to submit respectively their initial reports on the merit of the case by 24^th September 2015. But the tribunal refused to order India to release the accused marines because it touched upon the issues related to the merit of the case.[16]

The arbitration procedure began on 11^th December 2015 as Italy filed its first request for the prescription of provisional measures. After India submitted their written observations to this request, on 26th February 2016 and a subsequent hearing on 29th April 2016, the tribunal gave an order in favour of Italy. As per procedure, Italy filed its first memorial on 30 September 2016. India submitted their counter-memorial on 14 April 2017, in which they not only responded to Italy’s claims but also questioned the admissibility of Italy’s claims, the jurisdiction of the Tribunal over this matter and also filed counterclaims. Subsequent replies and rejoinders were submitters by each party to be added to their respective memorials till 9th March 2018. The arbitration was to take place in autumn of 2018, but due to the illness and sad demise of an arbitrator on the arbitral tribunal bench, the dates of hearing were set from 8th to 20th July 2019. The arbitration took place at the Permanent Court of Arbitration (PCA) at Peace Palace, The Hague in the Netherlands. The award was issued to the parties on 2nd July 2020 and made public by publication on the PCA Case Repository on 10^th August 2020 after confidential information was redacted at the request of the parties.[17]

Issues

Since no party disputed the act, the only major issues in this matter was that of jurisdiction and whether the marines enjoyed immunity. Both India and Italy agreed that the shooting had occurred and that lives were lost.

A scope for conspiracy arose on 6^th April 2013 when the Italian military report of the examination of the fishing boat St. Anthony (Dated: 11 May 2012) was leaked alleging that the bullets used in the incident were actually fired from the weapons of two other marines. Sparking the possibility that the leading officers chose to take responsibility for the actions of someone else on their team.[18] Nothing came of it.

At first, the dispute did not impact the ties between the two countries too much, but with all the media attention this case was getting, the citizens were at unrest. The point at which everything went south was in 2013 when the Italian government refused to honour their promise of returning the marines to Indian custody after they were allowed to go back to Italy to vote in the election. The Supreme Court of India retaliated by barring the Italian Ambassador of the time from leaving India. The UN Secretary-General had to step in to convince Italy to de-escalate the matter and send back the marines.

But that didn’t stop the countries from going into a cycle of retaliation. High-level contacts were frozen, meetings of the Joint Commission and defence officials were cancelled, the Indian ambassador to Italy was instructed to stay back in India. A live bullet was found along with lots of hate mail at the Indian Embassy in Rome.[19] Italy even blocked India from the Missile Technology Control Regime (MTCR) in 2015. Due to high tensions, the EU parliament was involved who decided to take Italy’s side and criticized India’s stance. This led to the 13^th India-EU summit to be held in 2015 to be indefinitely postponed. The ambassadors didn’t face many issues on a personal level since both countries understood their importance as a medium of communication.

It took a personal visit to Rome by External Affairs Minister Sushma Swaraj in 2016 to smoothen the relations. After which, India gained admission into the MTCR and the India EU summit too was finally held in 2016. Other than the said actions, the business between the countries continued unharmed and trade between the nations actually increased by a billion Euros between 2014-2015 even as the dispute continued. Italy regards India among its top five partners for international trade and India has always chosen Italy as a partner when in need of securing international support. India has been a welcoming host to the Italian Prime Ministers since 2017.

Holding & Rationale

Extract of the Arbitral Award as declared on 21 May 2020.[20]

In relation to Jurisdiction:

1. The dispute concerns the interpretation of the Convention;
2. The PCA has jurisdiction to try this matter;
3. India’s counterclaims are admissible;
4. Articles 2(3), 56(2), 58(2) and 100 of UNCLOS are not pertinent and applicable to this case;[21]
5. The PCA has jurisdiction to deal with the question of immunity of the marines;
6. There is no need to address the compatibility of UNCLOS with India’s 1976 Maritime Zone Act and its 1981 Notification.

In relation to the actual matter in dispute:

1. India has not violated Articles 87(1)(a), 92(1) of the UNCLOS; and Articles 97(1), 97(3), 100, 300 of the UNCLOS are not applicable in the said case.[22]
2. The marines are entitled to immunity in relation to the act committed on 15 February 2012, and India has no right to exercise jurisdiction over the marines.
3. Italy must resume their criminal proceedings into this event and India must cease to exercise its criminal jurisdiction over the marines.
4. Italy has not violated Article 58(3), nor violated India’s sovereign Rights Under Article 56, nor infringed India’s rights under article 88 of the convention.[23]
5. Italy has acted in breach of Article 87(1)(a) and Article 90 of the convention by interfering with the navigation of “St. Anthony”.[24]
6. As a result of the breach by Italy, India is entitled to compensation in connection with loss of life, physical harm, material damage to property (including to the “St. Antony”) and moral harm suffered by the captain and other crew members of the “St. Antony”. The parties are free to discuss the amount of compensation to be paid.
7. The tribunal shall retain jurisdiction for another year in case either or both parties decide to apply for a ruling in respect of quantification of compensation.

The cost of the proceedings to be bourn by each party themselves.[25]

Concluding Comments

The award seems fair, but saw many dissenting opinions in the panel, mostly by Arbitrators Robinson[26] and Rao[27].[28] These dissents were mostly in relation to whether articles of the UNCLOS had been violated by either country, which goes to show that maybe the language used in the convention agreement is not clear and relatively open to interpretation. They each disagreed with the majority of the bench on multiple occasions providing well rounded, valid reasoning. [29]

The most evident issue as pointed out by many jurists and people following the case since the incident is that the Award issued by the Arbitral bench constituted under UNCLOS gave the award based on customary international law. Each state did cite articles from the UNCLOS as an attempt to prove their side, but the bench rejected all such claims. The only reason for the marines to get immunity was because they were armed forces engaged in official duty, which is not a clause in the convention agreement. Thus, making India’s claim that said the matter was outside of the jurisdiction of the tribunal valid. But the tribunal responded to this by saying that the dispute in matter ‘which party may exercise jurisdiction over the marines’ could not be answered without answering the question of immunity. They also claimed that ‘dispute’ as a whole comes under their jurisdiction, increasing the ambiguity of the convention agreement.[30]  

Either way, the award has been accepted by both countries due to the excessive passage of time, and that they are both signatories to the applicable ‘Law of the Sea’ treaty. The Italian government has already begun prosecution of the marines under their own laws and has assured India that the families of the victims will be well compensated. The Supreme Court of India has refused to drop the pending cases in the matter until the relatives of the victims receive the cheques of compensation and have had a chance to be heard in court.[31]

Both sides appear relieved because the surge in nationalism did neither country any good, they each lost in terms of strategies and foreign policies, for what could have reached an amicable solution via a political resolution long ago. There is no provision for an appeal, making the given award binding.[32]

---

References:

• Chandan, Vidhit. Law of the Sea. 2020 Sept 20. <https://bnwjournal.com/2020/09/20/law-of-the-sea/>.
• Dikshit, Sandeep. India drops death penalty clause as Europe bats for Italian marines. 08 January 2020. <https://www.thehindu.com/news/national/india-drops-death-penalty-clause-as-europe-bats-for-italian-marines/article10946456.ece>.
• GIROLAMO, Federico DE. MEPs call for Italian marò accused of killing Indian fishermen to be repatriated. 15 Jan 2015. <https://www.europarl.europa.eu/news/en/press-room/20150109IPR06318/meps-call-for-italian-maro-accused-of-killing-indian-fishermen-to-be-repatriated>.
• India consults Italy over live bullet, hate mail received by embassy. 21 Feb 2014. <https://www.straitstimes.com/asia/india-consults-italy-over-live-bullet-hate-mail-received-by-embassy>.
• Indian Penal Code, 1860. n.d. 19 Sept 2020. <https://www.indiacode.nic.in/handle/123456789/2263?locale=en>.
• Italian vessel erred in judgment. 18 Feb 2012. <https://www.thehindu.com/todays-paper/tp-national/italian-vessel-erred-in-judgment/article2905439.ece>.
• M.T. Enrica Lexie & Anr vs Doramma & Ors. No. CIVIL APPEAL NO. 4167 OF 2012. Supreme Court of India. 2 May 2012. <https://main.sci.gov.in/jonew/judis/39291.pdf>.
• Massimilano Latorre & ors vs Union Of India & ors. No. WP(C).No. 4542 of 2012 (P). High Court of Kerala. 20 02 2012. <https://services.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=LfKgAEL6K8Sqqfv6TysK%2BPhIMDPCstCUc3DinpNLE3FwUeGxp%2FpxWcR2i8njTLrZ&caseno=WP(C)/4542/2012&cCode=1&appFlag=>.
• MHA withdraws sanction to NIA to prosecute marines under SUA. 07 March 2014. <https://www.business-standard.com/article/pti-stories/mha-withdraws-sanction-to-nia-to-prosecute-marines-under-sua-114030701089_1.html>.
• Misra, Jitendra Nath. Enrica Lexie Case: A Diplomatic Wrangle Nears Resolution. 20 July 2020. 20 Sept 2020. <https://thewire.in/diplomacy/enrica-lexie-case-a-diplomatic-wrangle-nears-resolution>.
• Nigro, Maura Gualco & Vincenzo. The yellow: the guns were those of other soldiers. 06 April 2013. <https://www.repubblica.it/esteri/2013/04/06/news/mar_la_verit_degli_italiani_su_quei_33_minuti_il_giallo_i_fucili_erano_quelli_di_altri_soldati-56043636/>.
• Pemmaraju, Dr. Sreenivasa Rao. Concurring & Dissenting Opinion. n.d. 20 Sept 2020. <https://pcacases.com/web/sendAttach/16773>.
• Press Release 232. 22 July 2015. <https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_232_EN.pdf>.
• Raju, Deepak. The Enrica Lexie Award – Some Thoughts on “Incidental” Jurisdiction. 22 July 2020. 20 Sept 2020. <http://opiniojuris.org/2020/07/22/the-enrica-lexie-award-some-thoughts-on-incidental-jurisdiction-part-i/>.
• Republic of Italy & Ors. vs. Union of India & Ors. No. WRIT PETITION (CIVIL)NO.135 OF 2012. Supreme Court of India. 04 Sept 2012. <https://main.sci.gov.in/jonew/judis/39941.pdf>.
• Robinson, Judge Patrick and Dr. Pemmaraju Sreenivasa Rao. Joint Dissenting Opinion. n.d. 20 Sept 2020. <https://pcacases.com/web/sendAttach/16775>.
• Robinson, Judge Patrick. Dissenting Opinion . n.d. 20 Sept 2020. <https://pcacases.com/web/sendAttach/16774>.
• Sharma, Abhimanyu. SC on Enrica Lexie case: Won’t close case against Italian Marines till victims’ families get compensated. 07 Aug 2020. 20 Sept 2020. <https://www.timesnownews.com/india/article/sc-on-enrica-lexie-case-wont-close-case-against-italian-marines-till-victims-families-get-compensated/633471>.
• Sovereignty is Not Given But Asserted: SC. 18 Jan 2013. <https://web.archive.org/web/20140202134808/http://news.outlookindia.com/items.aspx?artid=787367>.
• “SUA Convention and 2005 Protocol text.” n.d. SUA CONVENTION AND 2005 PROTOCOL TEXT. 19 Sept 2020. <http://oceansbeyondpiracy.org/sites/default/files/SUA_Convention_and_Protocol.pdf>.
• The Constitution of India. n.d. 19 Sept 2020. <https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf>.
• The Enrica Lexie Incident. 24 Aug 2015. <https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.24_prov_meas/C24_Order_24.08.2015_orig_Eng.pdf>.
• The ‘Enrica Lexie’ Incident (Italy v. India). n.d. 19 Sept 2020. <https://pca-cpa.org/en/cases/117/>.
• The Italian Republic v. The Republic of India (The Enrica Lexie Incident). No. PCA Case No. 2015-28. An Arbitral Tribunal constituted under annex VII to the 1982 UNCLOS. 21 May 2020. <https://pcacases.com/web/sendAttach/16500>.
• The Italian Republic v. The Republic of India concerinig The “Enrica Lexie” Incident. No. PCA Case No. 2015-28. An Arbitral Tribunal Constituted under annex VII to the UNCLOS, 1982. 02 July 2020. 19 Sept 2020. <https://pcacases.com/web/sendAttach/13647>.
• United Nations Convention on the Law of the Sea. n.d. 19 Sept 2020. <https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf>.
• United Nations Convention on the Law of the Sea. n.d. 20 Sept 2020. <https://pca-cpa.org/en/services/arbitration-services/unclos/>.
• Venkatesan, V. Enrica Lexie: Did India Lose Case Against Italy Because of Lapses By its Own Supreme Court? 05 July 2020. 20 Sept 2020. <https://thewire.in/law/enrica-lexie-india-case-arbitral-tribunal-dissents-supreme-court>.

[1] (United Nations Convention on the Law of the Sea)

[2] (Chandan)

[3] (The ‘Enrica Lexie’ Incident (Italy v. India))

[4] (Italian vessel erred in judgment)

[5] (Indian Penal Code, 1860)

[6] (Massimilano Latorre & ors vs Union Of India & ors)

[7] (Republic of Italy & Ors. vs. Union of India & Ors.)

[8] (Sovereignty is Not Given But Asserted: SC)

[9] (The Constitution of India)

[10] (M.T. Enrica Lexie & Anr vs Doramma & Ors)

[11] (SUA Convention and 2005 Protocol text)

[12] (MHA withdraws sanction to NIA to prosecute marines under SUA)

[13] (Dikshit)

[14] (GIROLAMO)

[15] (Press Release 232)

[16] (The Enrica Lexie Incident)

[17] (The ‘Enrica Lexie’ Incident (Italy v. India))

[18] (Nigro)

[19] (India consults Italy over live bullet, hate mail received by embassy)

[20] (The Italian Republic v. The Republic of India (The Enrica Lexie Incident))

[21] (United Nations Convention on the Law of the Sea)

[22] (United Nations Convention on the Law of the Sea)

[23] (United Nations Convention on the Law of the Sea)

[24] (United Nations Convention on the Law of the Sea)

[25] (The Italian Republic v. The Republic of India concerinig The “Enrica Lexie” Incident)

[26] (Robinson, Dissenting Opinion )

[27] (Pemmaraju)

[28] (Robinson and Rao, Joint Dissenting Opinion)

[29] (Venkatesan)

[30] (Raju)

[31] (Sharma)

[32] (Misra)