By: Ujeer & Aviral Chandraa* |
The Law of Sea considers piracy as an ‘enemy of all mankind’ i.e., hosti humani generis. When there was no law for piracy, pirates were prosecuted by any country on the principles of Universal Jurisdiction.
The United Nations Conventions on the Law of the Sea (UNCLOS) imposed various territorial limits of a state. It stated that territorial sea limit is 12 nautical mile from the end coast of the state[i], 24 nautical miles is for ‘the Contagious Zone’[ii] and 200 nautical miles is for ‘the Exclusive Economic Zone’ (EEZ)[iii].
Circa 2012, pirate attacks were frequent in the Arabian Sea area due to which the area was designated as a ‘High-risk Area’ and the Kerela coast was a part of that area. Importantly, the use of arms became requisite to defend oneself from such pirate attacks and mostly the use of arms leads to a legal battle between many countries under International Law.
Background of the Case
On 12th February 2012, Indian fishermen named Ajeesh Pink and Valentine Jelastine, both were shot on the coast of Kerela, India, by two Italian mariners namely Salvatore Girone and Massimiliano Latorre. It happened when ‘M.V. Enrica Lexie’, a shipping vessel aboard by the Italian Mariners was sailing in the Indian Contagious Zone came across a shipping vessel ‘St. Anthony’ aboard by the Indian fisherman. It was 20.5 nautical miles off the Indian Coast inside the Contagious Zone of India. The Italian Mariners misidentified St. Antony to be a Pirate boat and started shooting on them, which resulted in the death of Ajeesh Pink and Valentine Jelastine.
Further, the M.V. Enrica Lexie had sailed about 38 nautical miles on the high sea area (beyond India Territory) near the Lakshadweep Island and there they got captured by the Indian Coast Guard, forced them to proceed to Kochi Port. When they arrived at the Cochin, on 19th February, the FIR was already filed and they were charged for Murder (Section 302 of IPC) and Mischief (Section 425 of IPC).
Italy challenged the detention of their Mariners and further contended that there was no jurisdiction of the Indian Courts to entertain the cases as the incident took place in international waters, not in the territorial waters of India. Further, Italian Government cited the various provisions of the UNCLOS such as Article 97 which states that “In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or any other person in the service of the ship, 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” and Article 92 which states that “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or this Convention, shall be subject to its exclusive jurisdiction on the high seas.”
On the other hand, India claimed that Section 3 and 4 of IPC and Section 188 of the Criminal Procedure Code of India clearly states that any person committed any offence within the territory of India would be punished according to Indian laws.
The Supreme Court of India ruled that according to the UNCLOS, the states’ jurisdiction is confined to 200 miles i.e., Exclusive Economic Zone, hence the case can be entertained by the Indian Courts. Further, the Supreme Court also ruled that Kerela Government had no jurisdiction to entertain the case, although the Central Government could entertain the matter by setting up a special court.
The International Tribunal Ruling
In June 2015, the Italian Government approached The International Tribunal of the Law of Sea (ITLOS) (formed under UNCLOS) against India. Italy contended that the incident happened in the international waters and they acted to protect the Italian oil tanker as per the instruction given by the Italian government. Further, they request ITLOS to adjure India not to proceed with any step against the marines, and until the Tribunal proceedings’ end, and allow Girone to leave and stay in Italy.
India dismissed the contention of Italy and claimed that ITLOS had no power to entertain the case between the two nations. However, this claim was rejected by the ITLOS.
The ITLOS upheld that under UNCLOS Article 87(1) (a) and Article 90, India’s freedom of navigation was breached by Italy. However, the ITLOS said, “Italy and India shall both suspend all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII Arbitration Tribunal or might jeopardize or prejudice the carrying out of any decision which the Arbitration Tribunal may render”[iv].
Further talking about the issue of Jurisdiction, the Permanent Court of Arbitration (PCA) considered that India and Italy both had “concurrent jurisdiction”. The PCA also ruled that marines would not be liable for murder as they enjoy immunity of being state officials and regarded such acts as an exception to the jurisdiction to India. The PCA awarded compensation for “loss of life, material damages, and moral harm suffered by the captain and other crew members of St. Antony”.
Critical Comments
Importance of Dissenting Opinion:
Dr P.S. Rao, one of the AT’s members, said in his dissent: “I entirely disagree with its (AT’s) finding that the marines are entitled to immunity from Indian jurisdiction, even when they were on a commercial (cargo) vessel, under private ownership, whereas immunity under general international law is reserved in respect of a ship used only on government non-commercial service”. Another member of the Arbitration Tribunal, Judge Patrick Robinson, in his dissent, believed that state immunity and the immunity of a state official are different from each other. If the state does not have immunity how can the official enjoy immunity? He stated that the state cannot have the immunity for a commercial profit and therefore the state officials in this case also cannot.
The government officials enjoy immunity for government acts or duty performed in a foreign territory. The fact that the Government officials acted in official activity is immaterial because the acts of the Italian state based on which the marines performed their function amount to a commercial transaction, leaving Italy bereft of immunity for that conduct and therefore the marines chose themselves to rid off the immunity by involving in a commercial activity.
The overall failure of judicial functioning of India:
In the Enrica Lexie incident, the High Court of Kerala repelled the theory of functional immunity. However, the Supreme Court of India in its judgment of 18 January 2013 overruled the Kerala judgment maintaining at the same time the Indian jurisdiction and repelling to accept the Italian claim of functional immunity for the two marines. The functional immunity signifies the immunity in the performance of their official duty, which state officials enjoy from the jurisdiction of foreign courts[v]. However, the Court left the door open stating that the principle of functional immunity could be raised before the Special Court instituted for dealing with the case.
The Supreme Court lightly dealt with the issue by non-considering its seriousness. It asked a special court to start the proceedings in the case, which failed to even start the proceedings and this gave a major setback to India’s position because it helped Italy to claim before the AT that Indian authorities and judicial bodies have failed to decide the functional immunity in the case. If the honourable Supreme Court would have continued the case, then the Court might have ruled on the criminal allegation on the Italian mariners till now. This would have made a potent impact on the decision of the PCA because it would have made the PCA to consider the decision of the apex court.
Therefore the lack of speedy trials in the Indian court in the matter of Enrica Lexie, made India accept the bitter ruling of the Tribunal to be final.
India’s Sovereignty got diminished:
In the Republic of Italy Vs. Union of India, Supreme Court of India had inter-alia ruled that the incident took place in the territory of India ( in the contagious zone) and therefore it has the jurisdiction of the Indian Courts to decide the matter. It stated that "India is entitled both under its domestic law and the public international law to exercise rights of sovereignty up to 24 nautical miles". However, the Arbitration Tribunal over-ruled the judgment of the highest court of India by stating that India does not have jurisdiction over the issue. This had gifted a major blow to the sovereignty of the country by undermining its highest court’s decision.
Also, the Arbitration Tribunal has decided that India cannot begin new or continue older criminal proceedings against the mariners. This decision in a single stroke struck down all the legal and valid proceedings of the India Courts to be null and void. The effect of such decision will be that if a sea incident would occur in the Indian coastal waters in future, the Indian civil rights in EEZ (Exclusive Economic Zone) will now be engulfed with danger as the AT has found that Italy has not violated India’s sovereignty under Article 56 and 58 of the UNCLOS.
The Lesson Learnt
After the decision of the Permanent Court of International Justice (PCIJ) in the case of S.S. Lotus, the ships are now considered to be as floating territories. The Honorable Supreme Court decision on jurisdiction was based on this case law but it has already lost its value because it has been diluted by Article 97 of UNCLOS. Article 97(1) of UNCLOS provides that in any matter related to navigation or matters of the collision, no penal or disciplinary proceedings may be instituted against the person except by the flag state or the nation to which the offender is a citizen. Also, Article 97(3) of UNCLOS bars the arrest or detention of offender except by the flag state. The Enrica Lexie case has successfully pointed out the loopholes in Article 97 of UNCLOS, which talks about only the collision of ships. The firing on the other ships is not dealt with clearly.
Under International law, the members of the armed forces during the discharge of their official duties are entitled to ‘functional immunity’. However, in the present case, the Italian mariners were on a commercial duty but immune due to the discharge of their duty as officials on government duty. Also, there is no convention on the matters related to functional immunity of mariners that they can enjoy in such cases except the heads of the state and diplomats. So, there is an urgent need for such a convention.
The Enrica Lexie case has set a bad precedent for fisherman as their lives are now at risk. The firing took place in the boundaries of territorial waters of India, where fishing is done by Indian fisherman. If incidents like ‘Enrica Lexie case’ would happen in the future, then criminal trials will not take place in the native country, which is a danger to justice all over the world for the right to navigate freely in territorial waters. Therefore, India should monitor the criminal proceedings very closely that will take place in Italy so that the justice is served to the India fishermen and that it could set a precedent in the strict sense.
It can be said that Arbitration Tribunal’s decision has undermined the Sovereignty of Indian Courts to decide on the case of ‘Enrica Lexie’ incident. Its decision bars the Indian Courts to begin or continue any criminal case against the Italian mariners. However, the judgement grants partial relief for violation of ‘the right to navigation’ as a form of compensation. India has taken note of the Award and will be following with relevant entities on the matter and regulatory framework established by Government. Further, Indian executive bodies and judicial bodies should try to learn from this incident and treat it as a lesson on how to handle future challenges better.
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* The authors are the student at Dr. Ram Manohar Lohiya National Law University, Lucknow.
[i] Article 3, section 2, Part II, UNCLOS [ii] Article 3, section 2, Part II, UNCLOS [iii] Article 57, Part V, UNCLOS [iv] Vijaita Singh, ‘UN court grants status quo’ The Hindu (24th August 2015) [v] The Democratic Republic of the Congo v Belgium, [2002] ICJ Rep 3