(Case Study towards the fulfilment of the Continuous Assessment-II for the subject

International Maritime Law)

CASE STUDY: ENRICA LEXIE, REPUBLIC OF ITALY V. UNION OF

INDIA

SUBMITTED TO: SUBMITTED BY:

Ms. Kritika Singh Raghav Goyal (1927) &
Faculty of Law Rishabh Chopra (1934)
National Law University, Jodhpur Semester: VII
B.A., LL.B. (Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY–NOVEMBER 2023)

INTRODUCTION
The assignment addresses the case of Enrica Lexie, Republic of Italy v. Union of India 1
which is a landmark case concerning the implications on the Law of the seas with connection
the law of the nation, this is a very debatable case that concerned with the killing of two
Kerala fishermen by two Italian marines on board in Enrica Lexie on February fifteen, 2012,
nearly eight years ago. This incident has taken place about 20.5 nautical miles from the coast
of the Indian territorial boundary, where Enrica Lexie was an oil tanker vessel flying the
Italian flag had committed the crime in the sea. Following this event, the two mariners were
booked under various charges as stated in the Indian Penal Code and also application of
criminal jurisdiction over it. It was said by the Republic of Italy that India had no jurisdiction
over this matter and also, they are violating the United Nation Convention of The Law of Sea,
which both the country had ratified, which makes them a part of the convention. The
contention has instigated a heavy discussion in the Italian Republic and the Republic of India
moreover as in the entire International Community.

Consequently, the case provides the event to critical reflections on a debated subject of law of
nations, the dilemma of state jurisdiction for crimes committed at sea conjointly,
encompasses led to a perilous dispute between the countries which lead to a diplomatic crisis
among the two-nations. The accompanying paper would discuss the legal implications of this
dispute, and also the contradicting positions persisted between both nations and also some of
the problematic disputes which arose regarding the rule laid in the interpretation of United
Nations Convention on the Law of the Sea (UNCLOS), also commonly called as the Law of
the Sea Convention and other domestic law related to this.

MATERIAL FACTS

 On 15th February 2012 an Indian fishing vessel called ‘The St. Antony’ (or boat)
carrying 11 men, was engaged in fishing, which was within the Exclusive Economic
Zone of India, 20.5 nautical miles from Kerala’s coastline to be precise.2
 There were two Italian men on board an Italian oil tanker ship called the Enrica Lexie.
3
These two men were part of their tanker that was travelling from Sri Lanka to Egypt.
It contained a Vessel Protection Detachment (hereinafter referred to as VPD) which
was an Italian contingent to protect the ship from pirates in the sea, as piracy was
prevalent in that area.
1
(2013) 4 SCC 721
2
Eboli, Valeria & Pierini, Jean Paul. (2012). The “Enrica Lexie case” and the limits of the extraterritorial
jurisdiction of India.
3
Maritime MMSI No.247232700 and IMO No.9489297
  In a tragic incident, a fishing vessel is mistaken for pirates by the VPD, resulting in
shots fired that kill two fishermen, Valentine Jelastine and Ajesh Binki, and endanger
others on the ship. The Enrica Lexie ship is identified as responsible, leading to Indian
Coast Guard and Navy involvement. India requests the ship's return for investigation,
alleging no coercion, while Italy claims Indian forces manipulated movement.
 Upon the ship's return, thorough investigation and crew questioning reveal the
involvement of VPD members, Sergeant Massimiliano Latorre and Sergeant Salvatore
Girone, who were performing official duties as marines. They are charged with
offenses under the Indian Penal Code, including murder, and arrested, potentially
facing the death penalty.
 The Italian government launches investigations and dispatches an admiral to India for
further inquiry. This initiates a series of legal cases across different platforms,
predominantly addressing jurisdiction and authority issues arising from the incident.
The incident underscores the complexities of international incidents involving
maritime security, legal boundaries, and diplomatic relations.

ISSUES UNDER CONSIDERATION:

 Whether the Italian Marines be tried for Murder of the two fishermen under the
jurisdiction of the Indian courts according to IPC?
 Whether the Italian marines be entitled to sovereign immunity?

ARGUMENTS SUPPLEMENTED:

Arguments from the side of Petitioner-

 The Petitioners argued that they were not involved in the act of murder or attempt to
murder as opposed to the allegations against them. They were part of the security
forces and they saw the fishing vessel as an attempted piracy attack. They sounded
alarms, horns, and flashlights as a warning to the people in the vessel. The master also
sent out a security signal which would intimate the navies of many including India.
Despite that, they did not make a change of direction.

 They also argued that the incident took place in the contiguous zone/ Exclusive
Economic Zone, which was far beyond the territorial water of India.
They stated that according to Section 4 of IPC, India had the jurisdiction for only those
criminal matters that were in the territory of India and its jurisdiction outside the territory was
limited to Indian citizens. Since the two marines were foreign citizens, their offences should
ideally not be tried by Indian courts.

 The petitioners also argued that as a nation they had the freedom of navigation
according to Article 87 1(a) of UNCLOS 1982 4, which would give them the freedom
to travel the seas without the interference of any other sovereign body.

 Additionally, Article 975 and Article 586 of the UNCLOS, also made the jurisdiction
of India invalid as it clearly stated that for any matter concerning a foreign ship or it’s
master, the coastal state (here India), would not have the right to impose any penal
proceedings on the ship. Also, since there was an investigation started in Italy as well
there must not be the need of proceedings in India.

 Lastly, it was pleaded by them that since both the marines were on official duty of the
State, they must be given functional immunity from the offences according to the
provisions of UNCLOS.

 They prayed the court to issue a petition that would render the charges to be declared
null and void.

Arguments from the side of Defendants-

 It was argued by the Respondent that the master of the ship had not cared to inform
the Coast Guard regarding the incident until the Enrica Lexie was directed by the
Indian Coast Guard to proceed to the port. This implies that they had travelled for 3
hours, covering 39 nautical miles after the incident occurred without informing any
authority about the incident. Additionally, they also failed to report the incident to the
International Maritime Bureau, which is a breach of mandatory procedure.

 Secondly, it was argued that the act of flashing a searchlight as a warning was not
useful as in broad daylight it would not have been visible at all.

 It was also argued that the firing by the VPD was unnecessary and usually should be
resorted to as the last option for self-defence. They should have taken other action to

4
United Nations Convention on the Law of the Sea (UNCLOS). United Nations, 10 Dec. 1982, Article 87(1)(a).
5
United Nations Convention on the Law of the Sea (UNCLOS). United Nations, 10 Dec. 1982, Article 97.
6
United Nations Convention on the Law of the Sea (UNCLOS). United Nations, 10 Dec. 1982, Article 58.
 ward off any dangers, as there was a reasonable distance of 100m between the oil
tanker and the fishing vessel. Also, there was no attempt made by the people in the
fishing vessel to enter the tanker, which could lead to any imminent danger.

Ideally, they should have a response plan to deal with piracy and gradually increase the use of
force, which was absent in this case. The failure to follow such a standard procedure resulted
in a breach of anti-piracy measures.

 It was also stated that the Kerala coast was free from piracy and fishing vessels were
frequent in that area which implies that the fishermen were killed mercilessly.

 The respondents contended that Article 32 and Article 56 7of UNCLOS was
applicable as these laws provide for the maintenance of law and order by the coastal
state (India) in the EEZ and would thereby give India the jurisdiction to try the
accused Italian marines.

 It was further argued that the position of the tanker was 20.5 nautical miles from the
baseline of India which means that the incident occurred in the territorial water and
not in the high seas. Therefore, as contended by the Petitioner, Article 97 8 of
UNCLOS would not apply in this given case.

 Lastly, the petitioners would not be entitled to any immunity as they were under the
duty for the commercial activities of a private company, and the defence of sovereign
immunity applies only to those executing official duty for their country.

 It was prayed that their Indian jurisdiction must apply and the writ petition must be
dismissed.

JUDGEMENT

The Court decided that regarding the first issue the Italian marines are liable to be subjected
to the jurisdiction of the Indian Courts and can be prosecuted under the penal code of India.

The reason given was that the incident happened in the EEZ of India which is the coastal
region, in this case, as under the law of the sea it has the right to maintain law and order of
7
Ibid
8
United Nations Convention on the Law of the Sea (UNCLOS)." United Nations, 10 Dec. 1982, Article 97.
the coastal region. If any person of their nationality is affected, it has the right to interfere in
its legal matters. They opposed the petitioner’s arguments by saying that the freedom of
navigation is not absolute and since the fishermen were shot dead by the Italian marines, they
have interfered in the rights of others. The freedom should not, in any case, imply that India
must look at the entire incident as a mute spectator.

For the second issue, it was decided by the court that the Italian marines would not be entitled
to sovereign immunity. The following reasons were given by the court.

Firstly, the Italian marines were not discharging any official duty of their country as they
were employed for the protection of the vessel which belonged to a private person. This
vessel was engaged in commercial activities and was not related to any duty given by the
Republic of Italy.

Secondly, despite the fact that Sovereign Immunity is recognised by the Indian law, the
circumstances for such immunity to apply are not present here. This was a case of brutal
murder as they did not follow any guidelines or norms that would apply in the case of threat
of piracy and it cannot be let off as an act of sovereign function.

The Supreme Court of India, set aside the Kerala High Court judgement saying that it did not
have any jurisdiction to deal with the issues of the Italian marines even regarding the
investigation of the incident.

On June 26, 2015, the Republic of Italy filed a Dispute under Annexe VII of the United
Nations Convention on the Law of the Sea (UNCLOS) with the Permanent Court of
Arbitration in The Hague, and on July 21, 2015, the Italian Government sought provisional
measures before the International Tribunal for the Law of the Sea (ITLOS) in Hamburg,
Germany.

India had called on the Permanent Court of Arbitration (PCA) UNCLOS tribunal to adjudge
and declare that PCA has no jurisdiction with respect to the case submitted to it by Italy.
However, a majority of the court's five- member bench ruled 4-1 that it had jurisdiction in the
matter. Italian position that the marines, being members of the Italian armed forces in the
official exercise cannot be tried by Indian courts, was held and immunity was granted to
Italian marine officials.

Award by Permanent Court of Arbitration, Hague, Netherlands.

  The tribunal said that it had the jurisdiction of this matter considering that both India
and Italy were signatories of the UNCLOS 1982.
 The tribunal found that Italy had acted in breach of the provision of UNCLOS by
infringing India’s right to freedom of navigation in the seas by firing and restricting
the movement of St. Antony.
 Italy was liable to pay compensation for the loss of life of the two fishermen, for
endangering the fishermen on the boat and also for damaging the fishing vessel.
 India was not in violation of Article 87, Article 92 or Article 100 of the UNCLOS
1982.
 India had not abused its powers given by the UNCLOS.
 The tribunal also declared that India must cease all its proceedings and does not have
the jurisdiction over the matters of this case.
 The Italian marines must be given immunity for the acts that they have committed.
 The tribunal found that Italy was not in violation of Article 56, Article 58 and Article
88.
 The PCA, in the form of a final award, requested that the Italian Republic pay
compensation to the victims in the amount of Rs. 10 crore, and that India cease all
judicial and criminal actions because the marines had sovereign immunity and all
legal proceedings would be handled by Italy.

ANALYSIS OF THE CASE AND CONCLUSION

The case Enrica Lexie Case is related to a cardinal question that is based on the exclusive
jurisdiction which is both prescriptive and enforcement jurisdiction in India as well in the
case of Italy. In this following case, the Italian republic had to claim exclusive jurisdiction
regarding the EFSJ. Indian argument is based on the principle laid down in the Lotus Case9,
according to this, the state can extend its jurisdiction through local law as far as no specific
rule mentioned in international law by backed by article 59 of the UNCLOS where it says
that if there is no jurisdiction mention by the convention to the coastal state or state within the
EEZ if there is a conflict then it must be resolved through equity and in light to all relevant
circumstances. India argued that it had jurisdiction according to article 56 which laid down
that the coastal state can make law related to the EEZ. Keeping this in mind it would also
include the safety and security of the fishermen. According to Italy view, it has been laid
9
The Lotus Case (Turkey v. France), Judgment, 1927, Series A. – No. 10.
down in the following articles 91,92,94,97 of the UNCLOS, which have been established
under public international law and to which India is a part of UNCLOS, is obliged to
recognize the primacy of the flag state jurisdiction unless it is explicitly entitled to exercise
sovereign rights.10

he application of this provision is in favour of the Italian republic as it states in this article
that no other than the flag state can detain the ship and also in respect of arrest and
investigation to taken place in the high seas. Italy states that it is an incident of incidental
navigation taken place in high seas. It also argues that the EEZ and the contiguous zone
should be considered as high seas for the application of article 97, it further stated that
applying of article 97 and also the lotus doctrine prevents India from exercising criminal
jurisdiction. India however responded to this by that article 97 won’t be applicable here as
this is a case of a murder which cannot be brought in to the definition of incidental navigation
as incidental navigation is to be interpreted says that the event must be an unexpected and
unanticipated one but firing on unarmed fisherman boat who were about 200 mitres is not a
justification to this.11 The second point raised by the Republic of India was the article 97 only
applies to the high seas not to the EEZ and Contiguous Zone as stated in the definition of the
high sea in article 86 of UNCLOS, after all, arguments Supreme Court ruled that India has
the jurisdiction over this as 200 mile EEZ belongs to them but stated that it can be triable in
India and also that only the Indian government can exercise this jurisdiction not the Kerala
government in this case.

Analysing and interpreting the relevant law related to the case of Enrica Lexie, the case has
still some open strings in it, it gives us an idea that there is a big conflict of jurisdiction
involved here regarding this in international law. The demarcation or the distinction of
jurisdiction, it has to be more precise and accurate. When it comes to the law of the sea, it
does not deal with a single law or single statute but it is also has a connection to other legal
instrument and criminal jurisdictional law but the prima face case mostly deals with the
UNCLOS the application of criminal jurisdiction cannot exceed the territorial boundary of
the sea or it can also not be applied on a foreign vessel but it can in some cases where there is
justification to this there have been lots of flaws related to this law most particularly the EEZ
zone jurisdiction has not yet been cleared out. And also, regarding the lotus doctrine, is it still
a valid doctrine as it was removed by the UNCLOS when it came into power as in this case it

10
Supreme Court of India, Writ Petition No. 135 of 2012, para. 32.
11
Kerala High Court, WP(C)No. 4542 of 2012, para. 27.
was brought into the picture by the Indian republic this mater can only be sorted out by the
international tribunal.

Did India get justice or it was a lose? Most may agree that India got justice but we don’t
agree with this as this was a case of cold-blooded murder and since this incident had taken
place in the EEZ zone of India, they could have placed criminal jurisdiction over it but the
PCA award did not allow as India was asked to preclude its jurisdiction over this matter as
the PCA did not charge Italy with the article 56 of UNCLOS which is regarding the
jurisdiction and duties of the coastal State in the EEZ which was denied, it was violating
India’s sovereign right. The settlement given by the Italian republic is no way giving justice
to the family of the fisherman died that day justice was denied and paying off can never give
justice.