The Enrica Lexie incident that occurred in February last year, brought to light various law points which left the international jurists pondering. Here’s a simple explanation of the case as it stands now.
On February 15, 2012, two Italian marines on board oil tanker Enrica Lexie flying the Italian flag shot dead two fishermen on board a fishing boat with no arms; the incident occurred off the shores of Kerala.
According to the Indian Coast Guard, Indian government sources and the crew of the fishing boat Saint Antony, the incident occurred within the Indian Contiguous Zone around 20.5 nautical miles off the coast of Kerala.
Among various issues, two primary questions that were raised were of:
- Sovereign Immunity
UNCLOS and Jurisdiction
International law practice varied significantly from case to case, and from State to State as regards jurisdictional issues arising from incidents occurring in the sea, until the UNCLOS (United Nations Convention on the Law of the Sea) came into force in 1994. Both, India and Italy are signatories to the Convention.
Among several provisions, the Convention set the limit of various areas in the sea, measured from a carefully defined baseline, which is something like the initial boundary from which sea starts.
- Territorial Seas: This extends to 12 nautical miles from the baseline. Up to these 12 miles, the coastal State can set laws, regulate and use any resource. Foreign vessels have right to innocent passage through this area.
- Contiguous Zone: This extends from the above mentioned 12 nautical miles to further 12 nautical miles (it extends up to 24 nautical miles from the base line) and within this area, a State can exert limited control for the purpose of preventing or punishing infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.
- Exclusive Economic Zone: This covers 200 nautical miles from the baseline to the sea excluding the territorial sea and including contiguous zone. Within this area, the coastal State has control of all economic resources including any pollution of these resources. But it cannot prevent passage that is in compliance with laws of the coastal State and in accordance with the UNCLOS.
Question of Jurisdiction:
The first question is whether this incident is covered within or outside jurisdiction of Indian court.
Italian Argument: Italy has the right to try the two marines as the incident occurred outside India’s territorial waters. It further argued that under the terms of UNCLOS (Article 97), Italy being the flag State has exclusive jurisdiction.
Indian Argument: India has jurisdiction over the case because the victims were Indian and on board an Indian fishing boat at the time of the incident. Under the Maritime Act, 1976, the Indian State claims full and exclusive sovereign rights in the “Exclusive Economic Zone (EEZ)” and has conferred upon the Union Government the authority to extend Indian laws to this area with such restrictions and modifications as it thinks fit. Under Section 7(7) of this law, both the IPC and CrPC have been extended to this region through a gazette notification with an additional provision- Section 188A inserted into the CrPC, which allows any person committing an offence in the region to be “dealt with in respect of such offence as if it had been committed in any place in which he may be found or in such other place as the Central Government may direct….”. This implies that the marines could be investigated and charged for murder just like any other individual on the mainland.
Outcome (Key Points)
- The Supreme Court in its verdict of January 18, 2013, upheld India’s contention that as the Union Government had extended India’s sovereignty up to the EEZ, India had jurisdiction under its laws to try the marines.
- Article 97 of UNCLOS is applicable only in case of ‘incident of navigation’ or ‘collision’ and the incident of firing by the marines could not be deemed to be either as defined under the Convention and the flag State Italy, therefore cannot claim jurisdiction. The Court noted that the terms used in Article 97 could not include a criminal act and that while Article 100 of UNCLOS (which inter alia deals with issues of cooperation amongst member states in matters of piracy) could apply to the incident, the same would have to be considered only after evidence had been presented in the course of the trial.
- The Union Government and not the State of Kerala had jurisdiction to adjudicate the dispute.
- The Chief Justice quoted the SS Lotus case (France v. Turkey): He observed that States only have limited jurisdiction outside of the territorial sea that are limited by UNCLOS. Unfortunately, this limit is not described and he asserted Indian jurisdiction over the incident based on this limited grant without further deliberation.
- The Chief Justice also held that since some sovereign rights could legitimately be exercised by a country in the EEZ and Contiguous Zone (under UNCLOS), India could exercise jurisdiction over the incident.
Question of Sovereign Immunity:
The Second question was whether the marines were military personnel entitled to immunity as agents of the Italian State performing a sovereign function.
Italian Argument: The State of Italy claimed sovereign immunity and that they were really “guests” of the Government of India.
Indian Argument: Indian Government argued that existing immunity laws and conventions apply only to diplomats and no provision of law exists under which they can claim protection.
Outcome: The Supreme Court did not respond to this, saying it is for the Special Court to rule on this.