“Enrica Lexie Incident: A Battle of Jurisdiction”

One of the most significant aspects of the field of International Law is that it lays down the grounds which are crucial in determining the permissible limits of the jurisdiction of the States. When we take into consideration the aspect of Criminal Jurisdiction, it is vested in a given State only where there is the existence of an authentic link between the State and either the offence at hand or the alleged offender and in the absence of this link, the State is not entitled to assert criminal jurisdiction in the eyes of International Law. The issue of jurisdiction was of utmost significance in the Enrica-Lexie incident. On the night of 15th February 2012, two Indian fishermen who were onboard ‘St Anthony’ were killed by the shots fired by two Italian marines on board the Enrica Lexie which were an oil tanker which belonged to an Italian corporation.The St Anthony was approximately 20.5 nautical miles off the coast of Kerala, India when this incident occurred.Latorre and Giron, who were part of the contingent hired by Erica Lexie to protect the ship from pirates, killed those fishermen believing them to be pirates when there was no response from St Anthony when the team flashed signals asking for its identification and for it to divert from its route. The Indian coastguard contacted the Enrica Lexie asking the crew to divert from its route and head to the Kochi port under the pretext of identification of some pirates who were caught on the night of this incident. They were informed that an FIR had been lodged with the Kerala Police, under Section 302 (murder) of the Indian Penal Code (IPC). In the arguments before the Supreme Court of India by Italy, their argument was founded on three main grounds. The first one being the fact that since this incident occurred between two nation States and hence should be governed by the principles of international law. They argued that since there was no legitimate legal relationship between Italy and Kerala it was not possible for the delegation of India’s sovereign right in a relationship with Italy to the State of Kerala. From their point of view, since the incident took place outside the territorial waters of India, Italy as the flag state of Enrica Lexie should have exclusive jurisdiction over the marines. This claim found its basis in the fact that Article 97 of the UN Law of the Sea Convention states that in the event of a collision or any other incident of navigation concerning a ship on the high seas only the flag state of the ship has the jurisdiction to launch penal proceedings. Even though it is understood that the right of navigation can be exercised by the foreign ships in the waters of the contiguous zone, these deaths cannot be written off as an incident of navigation. One of the main contentions which were put forward by the Indian government was that the IPC can be applicable to the contiguous zone and had relied on the S.S Lotus Case of 1927 defending its right to try the Italian marines. The French ship, Lotus, had collided with a Turkish ship in international waters resulting in the death of several sailors and France went to The Permanent Court of International Justice (P.C.I.J) and argued that Turkey did not have jurisdiction because they were on a French boat in international waters at the time of the incident. The P.C.I.J ruled that Turkey could exercise jurisdiction over the incident even though it had occurred on the high seas. From August 26th, 2015, the court proceedings of this case have been stalled as a result of an interim order of the ITLOS which asked India to maintain “status quo” in the case. The stay of both the marines was extended by the Supreme Court till April 30th on Jan 13th, 2016 and the government were asked to update it to the status of the international arbitration proceedings which will be undertaken in accordance with the directions of the International Tribunal for the Law of the Sea and as of now the hearing has been fixed on the 30th and 31st of March 2016.

Written By: Vaishnavi Menon, a student of NLU Kochi as part of the Internship Program.

Published By: NESFIL

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