The much-awaited Final award of the Enrica Lexie (also known as the Italian Marine case) is out, while the marines remain in Italy. On February 15, 2012, when the fishing boat ‘St. Antony’ set sail from Neendakara harbor in Kollam district in Kerala, little did the fishermen aboard it anticipate the danger which was awaiting them in the seas. They never thought such a tragic incident was awaiting them.
It must have felt like a regular day in their lives with the usual toil in seas for livelihood! The controversy had fomented an intense debate not only in India and Italy but also in the whole International Community. Moreover, it has caused a dangerous diplomatic crescendo between the two involved countries. Thus, the case provides the occasion for important reflections on a major and very debated topic of international law, i.e. the issue of state jurisdiction for crimes committed at sea.
Factual Background
The Enrica Lexie is an Italian privately owned oil tanker. At the time of the incident, it was sailing from Singapore to Djibouti and had on board an Italian Vessel Protection Department (VPD), since the International Maritime Organization (IMO)had declared the waters alongside Kerala a high-risk area for piracy. The case dates back to 15th February, 2012 at a distance of about 20.5 nautical miles from the coastline, a fishing boat ‘St. Antony’ happened to pass “Enrica Lexie”, a tanker flying the Italian Flag. The two marines (Massimilano Latorre and Salvatore Girone) aboard the ship mistook ‘St. Antony’ for a pirate boat and had opened fire at it. After the report of an armed attack and the killing of two fishermen that were on board the Indian fishing boat St. Antony, the Enrica Lexie was intercepted by the Indian Coast Guard at 20.5 nautical miles from the coast of Kerala and compelled to dock at the Kochi Port. There, two members of the VPD, Massimiliano Latorre and Salvatore Girone, were brought into custody and charged with homicide, receiving a First Information Report (F.I.R.) on 19 February 2012.
On 22 February 2012, Italy filed a petition to the High Court of Kerala for the quashing of the F.I.R. and all subsequent acts. At the same time, Italy asserted exclusive jurisdiction over the Enrica Lexie and started a criminal process against Latorre and Girone, who were charged with murder before the Tribunal of Rome. Nevertheless, the Kerala High Court dismissed the Italian petition by stating that Indian Courts were also entitled to exercise jurisdiction over the case, and started proceedings against the two marines for murder, attempt of murder and mischief. Consequently, Italy filed a second written petition, this time addressed to the Supreme Court of India, ‘challenging the jurisdiction of the State of Kerala and the Circle Inspector of Police, Kollam District, Kerala, to register the F.I.R. and to conduct investigation on the basis thereof or to arrest the petitioner [s]’. With this second writ, Italy prayed ‘for quashing of F.I.R.’ since the same was ‘without jurisdiction, contrary to law and null and void.
On 18 January 2013, the Supreme Court of India ruled that the High Court of Kerala was not entitled to prosecute the case, but that ‘it is the Union of India which has jurisdiction to proceed with the investigation and trial of the Petitioner[s]’, and established that India had to ‘set up a Special Court to try this case’s. In April 2013, the Indian National Investigation Agency, the agency empowered to combat terrorism related crimes in India, was entrusted with the prosecution of the case. The agency decided to try the two Italian marines on the basis of the Indian SUA Act, by which India has implemented the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention). By invoking this law, Indian authorities qualified the incident as an act of maritime terrorism. This episode generated new diplomatic tensions since Italy strongly disagreed with equating the Enrica Lexie incident to an act of terrorism perpetrated by the Italian marines. Moreover, by applying this provision, Latorre and Girone could have faced death penalty. Eventually, India’s central government ordered the ad hoc tribunal to downgrade the charge from maritime terrorism under the SUA Act to murder.
On 26 June 2015, after several deferments of the trial by Indian Courts, Italy decided to submit the dispute to the International Tribunal for the Law of the Sea (ITLOS), pursuant to Annex VII of the UNCLOS, and asked the ITLOS to issue provisional measures stating 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 […] throughout the duration of the proceedings before the Annex VII Tribunal’. On 24 August 2015, ITLOS issued its provisional measures and ordered that ‘Italy and India shall both suspend all court proceedings and refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardise or prejudice the carrying out of any decision which the arbitral tribunal may render. The ITLOS later referred the matter to the Permanent Court of Arbitration. From 8 July to 20th July 2019, the hearing was held at the seat of the PCA at the Peace Palace, the Hague, Netherlands.
Legal Controversy
According to Italy, the incident was characterised by a series of violations of international law by the Indian authorities. Namely, Italy contended that i) Indian authorities ‘acting by ruse and by coercion’ intercepted the Enrica Lexie in international waters and caused it to change its course and put into port in Kochi; ii) Indian armed personnel ‘boarded the vessel, undertook a coerced investigation of the ship and interrogations of its crew’, and iii) sergeants Latorre and Girone were arrested and have been subject to the custody of the Indian courts ever since. Moreover, Italy claims that the only courts empowered with the right of prosecuting Latorre and Girone are Italian courts, by invoking the exclusive flag state jurisdiction. Italy, thus, maintains that Indian authorities lack both enforcement and prescriptive jurisdiction over the matter. On the other hand, India claimed that the case falls within its prescriptive and enforcement jurisdiction, and argues that ‘as the victims were Indian nationals and they were killed on board an Indian fishing vessel […] early assertion of jurisdiction byItaly does not preclude India from exercising jurisdiction over the killing of its nationals who were fishing in India’s exclusive economic zone’. The case is relevant and has received a widespread media coverage and doctrinal attention, since it illustrates ‘the complexity that arise in managing jurisdictional conflicts and deciphering the relationship between international and domestic law’. Using the Enrica Lexie incident as a case-study, the purpose of this article is precisely to underline how, despite the ratification of UNCLOS, the provisions of international law concerning state jurisdiction over the seas are not easy to interpret and apply, and can thus give rise to complex legal controversies between States.
Holding of the Permanent Court of Arbitration
After a much long-awaited International controversy, on 2nd July 2020 the Permanent Court of Arbitration has unanimously held that India is entitled to claim compensation from Italy. It also held (by 3:2 majority) that the Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines. Further it was held that Italy has acted in breach of the Article 87, paragraph 1, subparagraph (a), and Article 90 of the United Nations Convention for the Law of the Sea and that India is entitled to payment of 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’”, which by its nature cannot be made good through restitution.
India’s stand
An application has been filed on behalf of Union of India, seeking disposal of the matters pending in the Supreme Court regarding the criminal proceedings against Italian marines in respect of the incident of firing of fishing boat near Kerala shores on February 15, 2012. The Union has stated that it has “decided to accept and abide” by the order passed by the Tribunal which held that India is entitled to claim compensation from Italy and that India is precluded from exercising its jurisdiction over the marines.
TAKEAWAYS FROM THE DECISION
There were many points which were decided in favour and against for India.
In favour
1. The PCA tribunal Award holds that as a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention, India is entitled to payment of 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”.
2. The Award finds that by interfering with the navigation of the “St. Antony”, Italy has acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.
3. The award reaffirms that Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention and holds that the said finding in the award constitutes adequate satisfaction for the injury to India’s nonmaterial interest.
4. That there is no need to address the question of the compatibility with UNCLOS of India’s 1976 Maritime Zone Act and its 1981 notification.
5. The PCA retains jurisdiction, should either party or both parties wish to apply for a ruling from the PCA in respect of the qualification of compensation due to India.
6. That India has not acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 92 of the Convention.
7. That Article 97, paragraphs 1 and 3, of the convention are not applicable in the present case.
8. That India has not violated Article 100 of the Convention and that therefore Article 300 cannot be invoked in the present case.
Against
1. The award concludes that the Italian marines are entitled to immunity in relation to the acts they committed on the disputed incident of 15th February 2012, and that India is precluded from exercising its jurisdiction over the Marines.
2. That India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required.
3. That Italy has not infringed on India’s rights under Article 88 of UNCLOS.
4. That Italy has not violated India’s sovereign rights under Article 56 and further has not violated 58, paragraph 3 of the Convention.
Concluding remarks
The ruling of the Arbitral Tribunal shouldn’t be considered a win or loss for either of the nations. However, the cardinal question on which the whole Enrica Lexie case was centred related to the prescriptive and enforcement jurisdiction of both India and Italy over the two marines. Finally, a decision has emerged given that the subject matter of the dispute involved certain grey areas of international law.