Enrica Lexie: The Undisputed Contention
The article has been re-assessed, rationalised and rewritten in order to try and deal with the increasing plethora of new resources on international law. Every state has created for itself policies, rules, regulations and principles within which they develop as a state and to launch those ideologies as to what should be done and what should not be done and International law is that law which binds these communities in their relations with each other. United Nations Conventions on the Law of the Sea, (UNCLOS) 1982, gives the privilege to navigate in International waters and is verily part of the several other liberties secured by the UNCLOS. Laws on the seas are compound which is why it becomes problematic when it comes to unlawful acts on International waters or Territorial waters that includes foreign nationals or individuals and also leads to deadlocks and difficulties when such laws conflict with the municipal law i.e., law of the land of that particular country. Therefore, if a country is in a disagreement or a dispute arises between countries it is easy to have an alternative or a remedy provided under the guidelines of international law as there will at least be a common platform where these issues will be discussed and heard but that does not constitute that every multifaceted problem will be resolved since there is no drafted version of international law and has not yet been fully developed there is neither a precise definition to establish International law as a law and is also in the process of substantial changes that have taken place under the purview of international law but part from all these aspects, positive features of international law should also not be ignored.
Years have passed by since the Enrica Lexie incident took place, in the territorial waters of India and the problem regarding this case is far from being handled the way the international maritime and legal bodies had relatively anticipated. This Article will focus on analysis of Enrica Lexie case through application and comparison of various International laws and determination of the legality through precedents.
M.V. Enrica Lexie, an Italian Merchant Ship while on its voyage to Djibouti came across an Indian Fishing Vessel, ‘St. Antony’, which it mistook to be a pirate vessel, at about 20.5 Nautical miles from the Indian Sea Coast of the State of Kerala. The Italian Mariners opened fire resulting in the death of two person in the Indian Fishing Vessel. The crime was registered at the Coastal Police Station, Neendakara, Kollam, and Kerala for the offence under Section 302 read with Section 34 of the Indian Penal Code (IPC). The two Italian Marines, who had opened fire, were arrested and were produced before the Chief Judicial Magistrate, Kollam, and under Judicial custody.
Writ Petition was filed by the two Italian Mariners challenging the jurisdiction of the State of Kerala and stated that alleged offense had been committed outside the Territorial Waters off the Kerala Coast. The Writ Petitioners therefore prayed for quashing the F.I.R. and for a declaration that their arrest and detention and all proceedings taken against them were without jurisdiction, contrary to law and hence void. The matter was heard at length and judgment reserved by the High Court of Kerala. As the pronouncement of the Judgment was getting delayed the Petitioners and the Government of Italy approached the Honourable Supreme Court by filing a Writ Petition under Article 32 of the Indian Constitution.
Meanwhile, the High Court of Kerala dismissed the Writ Petition for lack of jurisdiction. Aggrieved by this judgment, the Petitioners filed special leave petition (SLP) and also contended that criminal proceedings were already initiated against the Petitioners under Italian’s Penal Code. The Honourable Supreme Court heard the Writ Petition filed under Article 32 and the SLP together. The Honourable Supreme Court, after a comprehensive inspection of various legal contentions raised by both the parties, disposed the Writ Petition stating that the Kerala police did not have jurisdiction and asserted that it is the Indian Government who has the jurisdiction as it involved international citizens.
Whether Indian Courts have jurisdiction to try Italian nationals under the provisions of the Indian Penal Code, 1860?
· As per, Article 97(1) of UNCLOS, asserts that in occurrence of collision or any other occurrences of navigation relating to ships on the High seas, concerning the penal or punitive authority of the owner or of any other person in the assistance of such ship, no penal or disciplinary proceedings should be put in motion against such person aside from the judicial or supervisory officials either of the flag State or the state of which such person is a national.
· However, Enrica Lexie case is not a case of navigation error but a case of accidental homicide.
If so, whether the Italian mariners are entitled to assert sovereignty, as they are part of Italian Royal navy?
· Although, the International law has been unambiguous on the principles of sovereign immunity, the foremost question to consider in this case is whether sovereign immunity applies to cases of illegal killing and if so, to what extent? In the case of, Lord Denning M.R. in Trendtex Trading Corporation v. Bank of Nigeria , wherein it was observed that:
· “The doctrine of sovereign immunity is based on international law. It is one of the rules of international law that a sovereign state should not be impleaded in the courts of another sovereign state against its will. Like all rules of international law, this rule is said to arise out of the consensus of the civilized nations of the world. All nations agree upon it. So, it is part of the law of nations.
· Lord Denning, however, went on to observe that notion of a consensus was merely fictional and there was no agreed doctrine of sovereign immunity. However, this did not mean that there was no rule of International law on the subject. It only meant that there is difference of opinion as to what that rule is. Each country delimits for itself the bounds of sovereign immunity. Each creates for itself the exceptions from it.”
· In such cases where foreign nationals are involved and there exists a conflict of law and interest it is best to go through other various interpretation of laws that exist and be used as an example.
· Under Section 3 of Anti-Hijacking Act 1982, where an aircraft may be hijacked, the Act does not take into consideration the nationality of the hijacker but explicitly identifies the probability of the commission of the act of hijacking outside India and provides under Section 6 that the person committing such offence may be dealt with in respect thereof as if such offence had been committed in any place within India at which he may be found. In the “Lotus case it was stated that, the territoriality of criminal law is not an absolute principle of international law and by no means coincides with territorial sovereignty.”
· Similarly, Section 3 of the Geneva Conventions Act, 1960, states that “any person commits or attempts to commit or abets or procures the commission by any other person of a grave breach of any of the Conventions”, either “within or without India”, ought to be punished.
As per the United Nations Conventions on the Law of the Sea, (UNCLOS) 1982, International waters are defined as those water bodies that are outside the country’s territorial waters. Territorial waters are those waters which extends 12 nautical miles off coast and within such territorial water countries have full sovereignty both above and below the surface. A contiguous zone means a waterbody that extends up to 24 nautical miles that is further away by 12 nautical miles from the territorial waters. There also exists an exclusive economic zone (EEZ), that extends 200 nautical miles from shore. This gives the freedom to navigate in international waters and is in fact part of a several freedoms guaranteed by the United Nations Convention on the Laws of the Sea (UNCLOS), example: a) freedom to conduct marine scientific research under Article 56 of UNCLOS, b) freedom of coastal state to exercise exclusive jurisdiction over artificial islands, installations and structures in exclusive economic zone (EEZ) under Article 60 of UNCLOS.
The Enrica Lexie incident took place at 20.5 nautical miles i.e., which clearly states that India had the jurisdiction to try the Mariners and had the right to exercise sovereignty as well. However, criminal proceedings against the Italian mariners had already been initiated in the Republic of Italy under Section 575 of Italian Penal Code which is imprisonment for 21 years. Instead of the parties disputing the case of their own jurisdiction, it is better for them to opt for admiralty law. “Every country engaged in maritime commerce has, in its national legal system, a special branch of law called maritime law, and the courts which administer this special branch of law exercises a special kind of jurisdiction known in English law as admiralty jurisdiction and though maritime law, including admiralty law, and admiralty courts are parts of the national legal system, and pertain to municipal laws of the countries concerned, they have an international aspect because maritime commerce is, by very nature, international.”
Furthermore, one has to also consider the adjunct of Public International Law, i.e., “Public International Law is the body of legal rules which applies between sovereign States and such other entities as have been granted international personality. It is aggregate of rules to which nations have agreed to conform in their conduct towards one another” . It was observed in the case of Macleod v. Attorney General of New South Wales & Huntington v. Attrill , that: “all crime is local. The jurisdiction over the crime belongs to the country where the crime is committed”. Since, both Italy and India are granted international personality and are part of the International Convention, and have to conform their conduct towards each other, it would have been justifiable according to public international law that India prosecutes the criminals in their own country, where the crime was committed.
Therefore, where the law on the seas are complex and becomes much complicated when it comes to criminal acts on international waters or territorial waters that includes foreign nationals, should be such cases taken by the higher authority like the international tribunals to execute the punishment in just manner.
Author Details: Syeda Fauzia is a student at Reva University, Bangalore.