Central university of south Bihar

PUBLIC INTERNATIONAL LAW ASSIGNMENT

THE ENRICA LEXIE CASE (INDIA VS. ITALY)

SUBMITTED TO: SUBMITTED BY:

Dr. Kumari Nitu Aditya Sinha

(Assistant Professor) CUSB2113125012

Department of Law 4th Semester, Section-B

School of law and Governance B.A.LL.B(Hons)

CUSB,Gaya 2021-26

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 ACKNOWLEDGEMENT

I would like to express my special Thanks and gratitude to our faculty Dr.Kumari Nitu
Mam for providing me the chance to work on this particular topic “The Enrica Lexie case
(India vs. Italy)”. I am obliged to thank our faculty of the respective subject to provide me
the necessary support required while making this assignment and for mentoring me
throughout the project. I get to learn so many things from the topic while making this
assignment and the whole journey of completing this project was quite interesting that I was
completely engrossed and dived deeper to seek the information and knowledge related to the
topic. I would not have been able to complete this assignment without the help of my
friends, colleagues.

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 INDEX
SR.NO TITLE PAGE NO

1. Acknowledgement 02

2. Case Details 04

3. Introduction 04

4. Fact of Case 05-07

5. Legal Controversy 07-08

6. The Issue of Jurisdiction in The Enrica 08-11

Lexie Case

7. Holding of The PCA 11-12

8. Conclusion 13

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 Case Details1

Administering Institution: Permanent Court of Arbitration (PCA)

Petitioner name: The Italian Republic(State)

Respondent name: The Republic of India (State)

Case Number: 2015-28

Type of Case: Inter-State Arbitration

Arbitrator(s): H.E. Judge Vladimir Golitsyn (President)

H.E. Judge Jin-Hyun Paik
H.E. Judge Patrick L. Robinson
Professor Francesco Francioni
H.E. Judge P. Chandrasekhara Rao
Dr. Pemmaraju Sreenivasa Rao
Date of Commencement of Proceeding: 26 June 2015

Date of Issue of Final Award: 21 May 2020

Introduction

The Enrica Lexie case is a high-profile incident involving the shooting death of two Indian
fishermen by Italian marines on board the Enrica Lexie, an Italian-flagged commercial oil
tanker. The incident occurred on February 15, 2012, off the coast of Kerala, India.

The Italian marines, Massimiliano Latorre and Salvatore Girone, mistook the fishermen for
pirates and fired several shots at them. The Indian authorities arrested the marines and charged
them with murder.

The incident sparked a diplomatic row between India and Italy, with Italy arguing that the
marines should be tried in Italy, as they were on board an Italian vessel. India, however, insisted
that the incident occurred within its territorial waters and that the marines should be tried in
India.

1
The “enrica lexie” incident (Italy vs. India) available at: https://pca-cpa.org/

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The case went through several twists and turns, including a dispute over the jurisdiction of the
case and the length of time the marines had spent in custody. Finally, in July 2021, the Italian
government agreed to pay compensation to the families of the two fishermen and the marines
were allowed to return to Italy to face trial.

The Enrica Lexie case is considered an important case to establish the legal boundaries of
maritime jurisdiction and to define the rights and responsibilities of states and parties involved
in such incidents.

1. FACT OF CASE:

The Enrica Lexie is an Italian privately owned oil tanker. At the time of the incident, it was
sailing from Singapore to Djibouti and had on board an Italian Vessel Protection Department,
since the International Maritime Organization had declared the waters alongside Kerala a high-
risk area for piracy. The case dates back to 15th February 2012 at a distance of about 20.5
nautical miles from the coastline, a fishing boat ‘St. Antony’ happened to pass “Enrica Lexie”,
a tanker flying the Italian Flag. The two marines (Massimilano Latorre and Salvatore Girone)
aboard the ship mistook ‘St. Antony’ for a pirate boat and had opened fire at it. After the report
of an armed attack and the killing of two fishermen that were onboard the Indian fishing boat
St. Antony, the Enrica Lexie was intercepted by the Indian Coast Guard at 20.5 nautical miles
from the coast of Kerala and compelled to dock at the Kochi Port. There, two members of the
VPD, Massimiliano Latorre and Salvatore Girone were brought into custody and charged with
homicide, receiving a First Information Report on 19 February 2012.

On 22 February 2012, Italy filed a petition to the High Court of Kerala for the quashing of the
F.I.R. and all subsequent acts. At the same time, Italy asserted exclusive jurisdiction over the
Enrica Lexie and started a criminal process against Latorre and Girone, who were charged with
murder before the Tribunal of Rome. Nevertheless, the Kerala High Court dismissed the Italian
petition by stating that Indian Courts were also entitled to exercise jurisdiction over the case,
and started proceedings against the two marines for murder, the attempt of murder and
mischief. Consequently, Italy filed a second written petition, this time addressed to the
Supreme Court of India, ‘challenging the jurisdiction of the State of Kerala and the Circle
Inspector of Police, Kollam District, Kerala, to register the F.I.R. and to conduct an
investigation on the basis thereof or to arrest the petitioners’. With this second writ, Italy
prayed ‘for quashing of F.I.R.’ since the same was ‘without jurisdiction, contrary to law and
null and void.

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On 18 January 2013, the Supreme Court of India ruled that the High Court of Kerala was not
entitled to prosecute the case, but that ‘it is the Union of India which has jurisdiction to proceed
with the investigation and trial of the Petitioners’, and established that India had to ‘set up a
Special Court to try this case. In April 2013, the Indian National Investigation Agency, the
agency empowered to combat terrorism-related crimes in India, was entrusted with the
prosecution of the case. The agency decided to try the two Italian marines on the basis of the
Indian SUA Act, by which India has implemented the Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention). By invoking
this law, Indian authorities qualified the incident as an act of maritime terrorism. This episode
generated new diplomatic tensions since Italy strongly disagreed with equating the Enrica
Lexie incident to an act of terrorism perpetrated by the Italian marines. Moreover, by applying
this provision, Latorre and Girone could have faced the death penalty. Eventually, India’s
central government ordered the ad hoc tribunal to downgrade the charge from maritime
terrorism under the SUA Act to murder.

On 26 June 2015, after several deferments of the trial by Indian Courts, Italy decided to submit
the dispute to the International Tribunal for the Law of the Sea, pursuant to Annex VII of the
UNCLOS, and asked the ITLOS to issue provisional measures stating that ‘India shall refrain
from making or enforcing any judicial or administrative measures against Sergeant
Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie
Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident […]
throughout the duration of the proceedings before the Annex VII Tribunal’. On 24 August
2015, ITLOS issued its provisional measures and ordered that ‘Italy and India shall both
suspend all court proceedings and refrain from initiating new ones which might aggravate or
extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardise or prejudice
the carrying out of any decision which the arbitral tribunal may render. The ITLOS later
referred the matter to the Permanent Court of Arbitration. From 8th July to 20th July 2019, the
hearing was held at the seat of the PCA at the Peace Palace, the Hague, Netherlands.

Italian Marines claimed sovereign functional immunity. They contended that as they are the
naval guards on an Italian ship, they were functioning under the instructions of Italy. This
argument was rejected by the Supreme Court in the absence of any forced agreement between
India and Italy. Further each country is to decide the bounds of such immunity for itself.
Counsel for Italy relied on Article 97 of UNCLOS which provides for “Penal Jurisdiction in
matters of collision or any other incident of navigation”. Since India is a signatory of the

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UNCLOS, it is bound by its provisions and both UNCLOS and Maritimes Zones Act, 1976 to
recognise the primacy of Flag State Jurisdiction.

It was also highlighted that Maritimes Zones Act, 1976 provides use of territorial waters by
foreign ships (other than warships including submarines and other underwater vehicles). They
have a right to innocent passage2. The incident occurred at a place which was 20.5 nautical
miles from the coast of India which was outside territorial waters and therefore, the incident
did not occur within the jurisdiction of one of the federal units of the Union of India.

2. LEGAL CONTROVERSY

According to Italy, the incident was characterised by a series of violations of international law
by the Indian authorities. Namely, Italy contended that i) Indian authorities ‘acting by ruse and
by coercion’ intercepted the Enrica Lexie in international waters and caused it to change its
course and put into port in Kochi; ii) Indian armed personnel ‘boarded the vessel, undertook a
coerced investigation of the ship and interrogations of its crew’, and iii) sergeants Latorre and
Girone were arrested and have been subject to the custody of the Indian courts ever since.
Moreover, Italy claims that the only courts empowered with the right of prosecuting Latorre
and Girone are Italian courts, by invoking the exclusive flag state jurisdiction. Italy, thus,
maintains that Indian authorities lack both enforcement and prescriptive jurisdiction over the
matter. On the other hand, India claimed that the case falls within its prescriptive and
enforcement jurisdiction, and argues that ‘as the victims were Indian nationals and they were
killed on board an Indian fishing vessel early assertion of jurisdiction by Italy does not
preclude India from exercising jurisdiction over the killing of its nationals who were fishing in
India’s exclusive economic zone’. The case is relevant and has received widespread media
coverage and doctrinal attention since it illustrates ‘the complexity that arises in managing
jurisdictional conflicts and deciphering the relationship between international and domestic
law’. Using the Enrica Lexie incident as a case study, the purpose of this article is precisely to
underline how, despite the ratification of UNCLOS, the provisions of international law
concerning state jurisdiction over the seas are not easy to interpret and apply, and can thus give
rise to complex legal controversies between States.

2
Section 4(1), Maritimes zone Act, 1976

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So, in short, The Italian republic had delineated the incident by stating that the republic of India
had violated a series of norms according to the International Law, there were various
allegations by the Italian republic against India:

i. Indian administrative authority had acted by machination by asking the Enrica

Lexie to change their course and return to the port of Kochi.
ii. The Indian troops had taken a thorough examination and investigation of the Enrica
Lexie ship and also had interrogated the crew member of the ship.
iii. The two naval officer who had committed the crime were apprehended and taken
into custody by authorized authority, Italy argued that India had no jurisdiction in
this matter and India countered it by saying that the victims were of Indian origin
and war hence need to be given legal remedy to it, this case got a wide media
coverage which made this an important matter the main question was raised that is
India has the jurisdiction to punish them or not this matter was then sent to the
tribunal.
3. THE ISSUE OF JURISDICTION IN THE ENRICA LEXIE CASE

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. India had countered this argument by interpreting the passive personality principle
this part of the paper will deal with the relevant provision of international law and its
application in this case.

3.1.Exclusive Jurisdiction Application in The Contiguous Zone and EEZ

The application of contiguous zone and EEZ was brought into the picture as we have already
discussed the above terms and their importance, it has much more importance here as in this
case both the country had many dispute and argument about the facts and the case but agreed
to one point which was that the incident had taken place 20.5 nautical miles from the Indian
sea coast of Kerala by this it could be said that it falls within the contiguous zone and also the
EEZ but outside the Indian territorial water which is up 12 nautical miles from the coast as we
have discussed earlier in this paper.3

3
Supreme Court of India, Writ Petition No. 135 of 2012, Republic of Italy & others v. Union of India & others.

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Italy said that India had no jurisdiction over the case, it was a part of the UNCLOS and had no
sovereign right over it as interpreted in article 33 and also in 56 of UNCLOS.4 The opinion of
Italy was as India did not have any sovereignty in respect to the territorial jurisdiction in the
contiguous zone and even considering the EEZ they have the only jurisdiction up to natural
resources nothing else there is no territorial jurisdiction on both cases so it has no right to
impose penal law regarding any criminal act so beyond the contiguous zone it is basically the
high seas which is open to all as it is the freedom of navigation. So, it can be said that Italy
considers that contiguous zone and the EEZ are areas outside the territory of Indian, it has only
a partial jurisdiction in it as per the UNCLOS this were some of the main arguments of Italy
against India to summarise the above it can be pointed out that;

i. This incident falls outside the scope of jurisdiction of India as per articles 33 and
57 of the UNCLOS in regard to the Contiguous Zone and EEZ;
ii. This incident had taken place outside the territorial water of India and even the
vessel was flying an Italian flag and so will get protection under EFSJ which gives
the right to the Italian court to prosecute them;

The India’s argument against Italy whereas follows;

i. India had sought protection under sec 7.7(a) of the Maritimes Zones Act which
stated that the central government can extend its restriction or modification as it
thinks fits for the time being in India or EEZ but need to publish in the official
gazette;
ii. The offence was directed toward India which violates the passive personality
principle;
iii. Tas affected the security of the country;
iv. The death of the fisherman did not happen in the board of Erica Lexie but on the
Indian fisherman boat this the application of the effect’s doctrine;

Indian argument is based on the principle laid down in the lotus case so 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

4
Supreme Court of India, Writ Petition No. 135 of 2012, para. 20.

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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 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.5

3.2.The Application of Article 97 in The Enrica Lexie Case

The 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 take 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. 6
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.

3.3.The Outcome of This Enrica Lexie Case

The Italian republic was blindsided and they had no other way to escape from this mater so
they took it to the international tribunal for the law of the sea. Even here they contended that
India had no jurisdiction in the case. This issue leads to a political crisis between the country
and a diplomatic dispute between them.

Finally, on July 2, 2020, the Permanent Court of Arbitration gave its final verdict, in this case,
it stated that India had not violated any ground in articles 87,92,97 and 100 as the opposition

5
Supreme Court of India, Writ Petition No. 135 of 2012, para. 32.
6
Kerala High Court, WP(C)No. 4542 of 2012, para. 27.

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had contended to do so. “India is precluded from exercising its jurisdiction over the Marines
“and must cease doing so as a form of sufficient remedy. It also said that the Italian republic
had breach articles 87 and 90 of UNCLOS. The tribunal said India is entitled to claim damages
for physical harm, mental harm, and also moral harm suffered by the captain and crew member
after this the Italian republic gave monetary compensation to the victim family of 1 crore
rupees.

4. HOLDING OF THE PERMANENT COURT OF ARBITRATION

After a much long-awaited international controversy, on 2nd July 2020, the Permanent Court
of Arbitration unanimously held that India is entitled to claim compensation from Italy. It also
held (by a 3:2 majority) that the Marines are entitled to immunity in relation to the acts that
they committed during the incident of 15 February 2012, and that India is precluded from
exercising its jurisdiction over the Marines.

Further, it was held that Italy has acted in breach of Article 87, paragraph 1, subparagraph (a),
and Article 90 of the United Nations Convention for the Law of the Sea and that India is entitled
to payment of compensation in connection with “loss of life, physical harm, material damage
to property (including to the ‘St. Antony’) and moral harm suffered by the captain and other
crew members of the ‘St. Antony’”, which by its nature cannot be made good through
restitution.

4.1.INDIA’S STAND

An application has been filed on behalf of the Union of India, seeking disposal of the matters
pending in the Supreme Court regarding the criminal proceedings against Italian marines in
respect of the incident of the firing of a fishing boat near Kerala shores on February 15, 2012.
The Union has stated that it has “decided to accept and abide” by the order passed by the
Tribunal which held that India is entitled to claim compensation from Italy and that India is
precluded from exercising its jurisdiction over the marines.

Decisions

There were many points which were decided in favour and against India.

In Favour:

1. The PCA tribunal Award holds that as a result of the breach by Italy of Article 87, paragraph
1, subparagraph (a), and Article 90 of the Convention, India is entitled to payment of

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compensation in connection with loss of life, physical harm, material damage to property
(including to the “St. Antony”) and moral harm suffered by the captain and other crew members
of the “St. Antony”.

2. The Award finds that by interfering with the navigation of the “St. Antony”, Italy has acted
in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.

3. The award reaffirms that Italy has breached Article 87, paragraph 1, subparagraph (a), and
Article 90 of the Convention and holds that the said finding in the award constitutes adequate
satisfaction for the injury to India’s non material interest

. 4. That there is no need to address the question of the compatibility with UNCLOS of India’s
1976 Maritime Zone Act and its 1981 notification.

5. The PCA retains jurisdiction, should either party or both parties wish to apply for a ruling
from the PCA in respect of the qualification of compensation due to India.

6. That India has not acted in breach of Article 87, paragraph 1, subparagraph (a), and Article
92 of the Convention.

7. That Article 97, paragraphs 1 and 3, of the convention, are not applicable in the present case.

8. That India has not violated Article 100 of the Convention and that therefore Article 300
cannot be invoked in the present case.

Against:

1. The award concludes that the Italian marines are entitled to immunity in relation to the acts
they committed on the disputed incident of 15th February 2012 and that India is precluded from
exercising its jurisdiction over the Marines.

2. That India must take the necessary steps to cease to exercise its criminal jurisdiction over
the Marines, and that no other remedies are required.

3. That Italy has not infringed on India’s rights under Article 88 of UNCLOS.

4. That Italy has not violated India’s sovereign rights under Article 56 and further has not
violated 58, paragraph 3 of the Convention.

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CONCLUSION

The ruling of the Arbitral Tribunal shouldn’t be considered a win or loss for either of the
nations. However, the cardinal question on which the whole Enrica Lexie case was centred was
related to the prescriptive and enforcement jurisdiction of both India and Italy over the two
marines. Finally, a decision has emerged given that the subject matter of the dispute involved
certain grey areas of international law.

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 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 I 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.

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 CENTRAL UNIVERSITY OF SOUTH BIHAR
SCHOOL OF LAW AND GOVERNANCE

PROJECT SUBMISSION ON:

THE ENRICA LEXIE CASE (INDIA VS. ITALY)

Submitted by: PRATEEK TIWARI Submitted to: DR. KUMARI NITU

CUSB2213125063 ASSISTANT PROFESSOR
Semester 4 School of law and governance,
Sec: A C.U.S.B
B.A.LL. B(H)
 BIBLIOGRAPHY

> International Law Studies, vol. 96. "The Enrica Lexie Incident: Italy v. India."
U.S. Naval War College, 2020, pp. 319-356.

> Marboe, Irmgard. "State Responsibility for Transboundary Air Pollution in

International Law." Oxford University Press, 2019.

> Meron, Theodor. "The Enrica Lexie Incident: A Fishing Vessel's Right to Self-
Defense in International Waters." American Journal of International Law, vol. 114,
no. 2, 2020, pp. 321-345.

> International Court of Justice. "Judgment in the Enrica Lexie Incident (Italy v.
India)." 2019.

> Nirmala, R.S., and Shweta Rana. "Enrica Lexie Incident: A Study of
International Jurisdictional Issues." Journal of Indian Law and Society, vol. 11, no.
2, 2021, pp. 143-160.

> https://www.icj-cij.org/en/case/168

> https://www.un.org/en/sections/issues-depth/oceans-and-law-sea/

> https://mea.gov.in/legal/

> https://www.esteri.it/mae/en/

> American Journal of International Law: https://www.cambridge.org/core/journals/american-

journal-of-international-law

> International Law Studies (U.S. Naval War College): https://digital-commons.usnwc.edu/ils/