ENRICA LEXIE CASE

FACTS-
Two Indian fishermen were killed by two Italian marines, on board Enrica Lexie, an Italian
Commercial vessel in the contiguous zone of India near the coast of Kerala. The owner of the
Indian boat on which these two fishermen were killed filed a FIR. A criminal case was
registered against the two Italian marines who were then arrested and detained by the state
police authorities of Kerala.
However, the two marines and the Consul general of Italy filed a writ in the HC of Kerala
against the arrest and detention of the two marines. The Kerala HC after which the Italian
Ambassador approached the Supreme Court of India on a special leave petition challenging
the validity of the arrest and the jurisdiction of Indian courts to try this case quashed this writ.

ISSUE AND HOLDING OF THE KERALA HC

A) The offence was committed on international waters and therefore it falls under article
97 of the UNCLOS and accordingly only the flag state has the jurisdiction to try the
case.
ARTICLE 97 of UNCLOS-
Penal jurisdiction in matters of collision or any other incident of Navigation
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 of 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.
In disciplinary matters, the State which has issued a master's certificate or a certificate of
competence or licence shall alone be competent, after due legal process, to pronounce the
withdrawal of such certificates, even if the holder is not a national of the State which issued
them.
Any authorities other than those of the flag State shall order no arrest or detention of the ship,
even as a measure of investigation
The incident occurred beyond the territorial water of India in the Contiguous zone and
according to the definition of territorial waters, Continental shelf, Exclusive economic zone
and other maritime zones act, 1976, the sovereignty of India extends only upto 12 nautical
miles from the baseline and therefore, the courts in India have no jurisdiction to try the case.
The marines were booked under the IPC, it was argued by the Italian consul that the
jurisdiction of the Indian Courts in relation to criminal offences is limited to the territory of
India (and cannot be extended beyond territorial waters) and any penal provision is only
applicable to an Indian citizen and not to an Italian Marine. Hence, their arrest and detention
is unlawful.
The marines were acting in their official capacity under the principles of International Law;
they were therefore subject to the jurisdiction of the flag state. It was contended that they
were entitled to functional immunity.
FUNCTIONAL IMMUNITY- Functional immunity arises from customary international
law and treaty law and confers immunities on those performing acts of state (usually a foreign
official). Any person who in performing an act of state commits a criminal offence is immune
from prosecution. This is so even after the person ceases to perform acts of state. Thus it is a
type of immunity limited in the acts to which it attaches (acts of state) but will only end if the
state itself ceases to exist. This type of immunity is based on respect for sovereign equality
and state dignity.
HOLDING-The HC was certain that the incident took place not in the territorial waters but in
the contiguous zone as per both UNCLOS and Maritime Zones Act, 1976. The court based its
decision on a Central Government notification of 1981 which was cited by the Union of India,
according to which the IPC and Cr.Pc have been extended to contiguous zone.
Secondly, the court interpreted article 97 of the UNCLOS. Now, article 97 states that the
incidence, which led to the trial, should be incidence of navigation or should have a
bearing on navigation which basically means in this case trouble should have been caused
to the Italian vessel while it was navigating. The court distinguished the present case for not
being incidence of navigation as the Italian marines opened fire at a boat which was 200
meters away containing unarmed fishermen. This is clearly a case of Homicide.
With regard to immunity, the court observed that the extent of immunity depends on the
circumstances in which the forces are admitted by the territorial state and whether there is an
agreement between the two states in question governing the entry of armed forces in the
Indian Territory. In the present case the two marines did not make an official entry(they were
basically not registered with the Indian authorities nor had any prior permission to enter) into
the territory and committed wrongful acts. Hence, they cannot be given immunity.
ISSUES BEFORE THE SUPREME COURT AND ITS HOLDING-
The SC dealt with the issue of extension of Indian law to Continental shelf.
The petitioners (Italy) contested that the incident did not occur within the jurisdiction of the
state of Kerala but in the zone where the central government has jurisdiction under the
maritime zones act, 1976 and UNCLOS. Also, that the arrest and detention by the Kerala
police authorities should be quashed.
ISSUE OF FLAGSHIP JURISDICTION-
Italy argued that the Maritime Zone Act and UNCLOS recognize flagship jurisdiction. Thus,
the two Italian marines should be tried under the local law. It further raised a question that if
there is a conflict between Maritime zones act and UNCLOS, which should prevail.
Issue of sovereign immunity was again raised
HOLDING-
If there is a conflict between domestic law and international law, in cases like the present
case, domestic law will prevail over international law. Special emphasis was made on articles
56(1) (a) and article 73 0f UNCLOS.
Article 56(1) (a) of UNCLOS- In the exclusive economic zone, the coastal State has:
(a) Sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its subsoil, and with regard to other
activities for the economic exploitation and exploration of the zone, such as the
production of energy from the water, currents and winds.
Article 73 of UNCLOS-
Enforcement of laws and regulations of the coastal State
1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve
and manage the living resources in the exclusive economic zone, take such measures,
including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure
compliance with the laws and regulations adopted by it in conformity with this Convention.
2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable
bond or other security.
3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive
economic zone may not include imprisonment, in the absence of agreements to the contrary
by the States concerned, or and other form of corporal punishment.
4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the
flag State, through appropriate channels, of the action taken and of any penalties subsequently
imposed
On the issue of immunity the court held that it would have been granted had it been a case of
collision during navigation as stated in article 97 of UNCLOS. But here it is a case of
homicide. Also, the Indian government does not allow armed vessel and force personnel to
accompany merchant vessel in the contiguous zone and for the same they need diplomatic
clearance which is absent in this case and hence, sovereign immunity cannot be claimed.
Finally, the court held that the incident occurred in contiguous zone so the state authority of
Kerala will not have jurisdiction but the central government has the power to try this case.
Also, the provision of UNCLOS is not in conflict with the Maritime zones act. And India can
exercise jurisdiction right over 24 nautical miles.
IMPORTANT PRINCIPLE- Enrica Lexie Case
The court dealt with the issue of extraterritorial jurisdiction. Although there is not much
clarity on this. In this case the court applied the effective doctrine according to which it is
justified for states to have an extra territorial jurisdiction when the effect of crime is felt in
nation. This was the principle of SS. Lotus.
To sum up UNCLOS, permit the coastal state to extend its penal jurisdiction when criminal
acts occur on a foreign ship in the territorial sea and when the consequence of the crime
extends to the coastal state. General international law permits the extension of penal law
wherever crime is committed.
CONCLUSION-
1. There is no conflict between the provision of UNCLOS and Maritime zones act, 1976.
2. India is entitled both under the domestic law and PIL to exercise right of sovereignty up to
24 nautical miles from the baseline of the coast.
3Article 97 of UNCLOS applies only in case of collision of ships and not where a criminal
act has been committed on an Indian national from on board a foreign commercial vessel in
sea beyond a states national jurisdiction.
Corfu Channel Case
The explosion of mines in the Albanian waters resulted in the death of a British naval
personnel. It was on this basis that the United Kingdom claimed that Albania was
internationally responsible for damages. In this case, the International Court of Justice ruled
that during peacetime the warships of the other states may pass through the territorial waters
of a State. In this case, the court ruled that Albania was guilty of causing loss to the British
ships by firing at them or otherwise by laying mines in that part of the sea and it was therefore
a clear violation of international law and the court gave its verdict that Albania should pay
appropriate compensation to Britain for this violation. Thus it is a well-recognized principle
of customary international law that foreign merchant vessels have a right of innocent passage
through the territorial waters.
Gabcikovo-Nagymaros Case
FACTS: Hungary (D) and Slovakia (P) had agreed in 1977 to build and operate a system of
locks along the Danube River comprising a dam, reservoir, hydroelectric power plant, and
flood control improvements. This project was never completed and both countries underwent
changes in their political and economic systems beginning in 1989. Hungary (D) first
suspended and then abandoned its part of the works and later gave notice of termination of the
treaty. In 1992, Hungary (D) and Slovakia (P) asked the l.C.J. to decide on the basis of
international law whether Hungary (D) was entitled to suspend, and subsequently abandon, its
part of the works, on the basis of the doctrine of impossibility of performance.
ISSUE: Must a fundamental change of circumstances have been unforeseen and must the
existence of the circumstances at the time of the treatys conclusion have constituted an
essential basis of the consent of the parties to be bound?
HOLDING AND DECISION: [Judge not stated in casebook excerpt.] Yes. A fundamental
change of circumstances must have been unforeseen and the existence of the circumstances at
the time of the treatys conclusion must have constituted an essential basis of the consent of
the parties to be bound. Where the prevalent political and economic conditions were not so
closely linked to the object and purpose of the treaty as to constitute an essential basis of the
consent of the parties, there was no fundamental change of circumstances. The plea of
fundamental change of circumstances may only be applied in exceptional cases.
Rule:a fundamental change of circumstances must have been unforeseen and the existence of
the circumstances at the time of the treatys conclusion must have constituted an essential
basis of the consent of the parties to be bound.
Analysis: The Court relied on the Vienna Convention. The Vienna Convention may be seen
as a codification of existing customary law on the subject of termination of a treaty on the
basis of change in circumstances. New developments in environmental law were not
completely unforeseen.
 SS lotus case
The issue at hand concerned a collision on the high seas (where international law applies)
between the Lotus, a French ship, and the Boz-Kourt, a Turkish ship. Several people aboard
the latter ship were drowned and Turkey alleged negligence by the French officer of the
watch. When the Lotus reached Istanbul, the French officer was arrested on a charge of
manslaughter and the case turned on whether Turkey had jurisdiction to try him. Among the
various arguments adduced, the French maintained that there existed a rule of customary law
to the effect that the flag state of the accused (France) had exclusive jurisdiction in such cases
and that accordingly the national state of the victim (Turkey) was barred from trying him. To
justify this, France referred to the absence of previous criminal prosecutions by such states in
similar situations and from this deduced tacit consent in the practice which therefore became
a legal custom. The Court rejected this and declared that even if such a practice of abstention
from instituting criminal proceedings could be proved in fact, it would not amount to a
custom. It held that only if such abstention were based on their [the states] being conscious
of a duty to abstain would it be possible to speak of an international custom.51 Thus the
essential ingredient of obligation was lacking and the practice remained a practice, nothing
more. The Lotus principle or Lotus approach, usually considered a foundation of international
law, says that sovereign states may act in any way they wish so long as they do not
contravene an explicit prohibition.

North Sea Continental Shelf Case

Facts-In this case two special agreements with regard to delimitation of continental shelf in
the north sea were entered into between-
1. The kingdom of Denmark and the Federal Republic of Germany.
2. Federal Republic of Germany and the Kingdom of Netherlands.
The parties approached the International Court of Justice with regard to the disputes/
differences pertaining to the delimitation of continental shelf.
The waters of the North Sea are shallow and the seabed consisting of continental shelf is less
than 200 meters. But the belt was 200-650 meters deep. It was contended on the part of
Denmark and Netherlands that the delimitation of continental shelf shall be made according
to the principle of Equi-distance special circumstances rule. An equidistance line is a line
every point of which is the same distance away from whether point is nearest to it on the coast
of the countries concerned. While Germany contended that the delimitation should be made
according to the principle of just and equitable share of the available continental shelf.
Article 38(1) of the statute of the ICJ lays down that the court shall follow the international
customs, etc. However, Article 38(2) provides for an exception to it. It is the principle of ex
aequo et bono which means the court may travel beyond the principles laid down in Article
38(1) and may travel beyond the law if the parties agree to it.
Judgement- The international court of Justice following the principle of equidistance special
circumstances held in favour of the kingdoms of Denmark and Netherlands.
 Nicaragua vs USA

Nicaragua alleged that the United States was responsible under international law for certain
military operations in Nicaraguan territory.
It claimed that the United States had
1. Used direct armed force against it by laying mines in Nicaraguan waters, and attacking and
damaging Nicaraguan ports and oil installations, and
2. Given assistance (by means of training, arming, financing, and supporting) to the contras,
Nicaraguan guerrillas fighting to overthrow the Nicaraguan Government. Nicaragua case
The US argued that it activities against Nicaragua was justified because it was acted in the
exercise of collective self-defense in response to Nicaraguas support of arms to rebels in El
Salvador, a friendly country.
As regards the issue of multilateral treaty reservation contained in the US declaration
accepting compulsory jurisdiction, while admitting that it could not apply Art. 2(4) of the
Charter against the US, the Court held that it could apply rules of customary international law
on the non-use of force and non-intervention.
Nicaragua case is quite significant because in this case the World Court thoroughly
examined and ruled on three important principles of international law, namely:
Principle of non-use of force; Principle of non-intervention;
Collective self-defense.
(On use of force)
According to the facts of Nicaragua case, while the arming and training of the contras can
certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily
so in respect of all the assistance given by the US Government.
The Court considers that the mere supply of funds to the contras, while undoubtedly an act
of intervention in the internal affairs of Nicaragua, does not in itself amount to a use of force
(On intervention)
The principle of non-intervention is part and parcel of customary international law.
The principle forbids all States or group of States to intervene directly or indirectly in
internal or external affairs of other States.
By virtue of the doctrine of sovereignty, a State is free to choose any political, economic,
social and cultural system, or to formulate whatever foreign policy, it likes.
Intervention is wrongful when it uses methods of coercion in regard to such choices, which
must remain free ones.
The element of coercion is particularly obvious in the case of an intervention which uses
force, either in the direct form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State.
(On Collective self-defense)
The rule prohibiting force allows for certain exceptions, the right of self-defense being one
among them.
Whether it is an individual or collective self-defense, three essential criteria must be
satisfied:
1. An armed attack by another State (the State concerned, having been the victim of an armed
attack);
2. Necessity of self-defense;
3. Proportionality.
The Court finds that in customary international law, there is no rule permitting the exercise
of collective self-defense in the absence of a request by the State which regards itself as the
victim of an armed attack.
Therefore, in the case of a collective self-defense, the request by the victim of armed
attack to come to its assistance is an extra requirement.
(Judgment of the Court)
The world Court announced its judgment in favor of Nicaragua.
Held that the United States was under an obligation to make reparation to Nicaragua for all
injury caused to Nicaragua by the breaches of obligations under international law.
 Nottebohm Case, 1955 ICJ

Facts: Nottebohm born in Germany. Lived in Guatemala since 1903 and conducted business
there but never became a citizen. In 1939, became a citizen of Liechtenstein (application
approved even though the requirement was of residence for at least 3 years). Tried to re-enter
in Guatemala in 1943 but refused. Liechtenstein offered him protection against the govt of
Guatemala in the ICJ. However, the govt of Guatemala argued that he did not gain
Liechtenstein citizenship for the purpose of IL.
Issue: Whether the conferment of the Liechtenstein citizenship is not contrary to IL and if
Liechtensteins claim on behalf of Nottebohm is admissible in court.
Holding: The court agreed with Guatemala and held that claims by Lichtenstein were
inadmissible.
Reasoning: The Court upheld the principle of effective nationality (national must prove a
meaningful connection to the state in question). The invocation is on the basis of the
admissibility of the application by Liechtenstein.
Real and effective nationality nationality shall be accorded with the facts that based on
strong factual ties between the person and the state. Different factors are taken into
consideration, and their importance will vary from one case to the next: the habitual residence
of the individual concerned is an important factor, but there are other factors such as the
centre of his interests, his family ties, his participation in public life, attachment shown by
him for a given country and inculcated in his children, etc.

Asylum Case( Columbia vs Peru)

In this case, the International court of Justice laid down that, A custom must be uniform, if it
is to be adopted as an international law. It should be in accordance with a constant and
uniform usage practised by the states in question, and that this usage is the expression of a
right appertaining to the state in question, and that this usage is the expression of a right
appertaining to the State granting asylum and a duty incumbent on the territorial state. This
follows from Article 38 of the statute of the court which refers to international custom as
evidence of a general practice accepted as law.
Facts- A rebellion took place in Peru in 1948. Haya dela Torre was a Peruvian subject and a
political leader. He was charged with rebellion on January 3 1949. Colunbia granted him
asylum in her embassy in Peru and requested the Peruvian government to provide facility to
take him outside Peru from Columbia. This request was made by Columbia on the basis of
Bolivian agreement, 1911 and Pan American Havana convention on asylum, 1928. Columbia
justified its act contending that it was a political crime. Peru refused to let him from the
country and arranged army around the embassy of Columbia to prevent him from escaping.
This matter was reffered to the international court of Justice.
Judgement- The court held that Columbia is not competent to decide the crime as political or
ordinary. Peru failed to prove it as ordinary crime. The court held that the asylum granted in
this case as irregular on the ground that 3 months elapsed after the suspension of the military
rebellion(which was condition precedent under the convention). Therefore, the court held that
Columbia was not bound to surrender Haya de la Torre though the asylum granted was
irregular since he was a political offender/refugee.