MV Enrica Lexie: Italy and India in international arbitration proceedings four years after incident.
By Giuseppe Lorenzo Rosa, Esq.
As a ViceChair of the Admiralty Maritime Law Committee, TIPS, American Bar Association I
covered this topic in two previous articles published in Newsletters circulated in 2013 and 2014.
The matter is now, finally, at a stage which, in my opinion, facts, legal issues, human suffering, well
deserve an updated focus.
Considering that Italy and India are now confronting each other in court, namely ad hoc
arbitration tribunal sitting in The Hague, The Netherlands, and that an Order was issued recently
by The International Tribunal for the Law of the Sea sitting in Hamburg, Germany, I will attempt
to approach the matter taking into account aspects which sometimes are not attracting much
attention by commentators.
The goal is to allow our readers an opportunity for reflection upon what modern times mean to
professional or leisure beneficiaries of our World seas.
I will contribute further coverage of this case, since petition for interim measures is being drafted
by Italy's counsels for the arbitration tribunal to consider very soon, pending review and award in
the merits, as explained under § 4 herein.
°°°°°°°°°°°°°°
1. The February 15, 2012 incident.
Enrica Lexie , IMO 9489297, Callsign ICKC, MMSI 247232700 is an Italian Aframax oil-tanker,
owned by Naples-based Dolphin Tankers, whose parent company is Fratelli d'Amato.
In 2014 the Enrica Lexie was renamed as Olympic Sky, re-flagged under Greek flag, and vessel
management was transferred to Olympic Shipping & Management S.A.
The Olympic Sky obtained new merchant tanker identification: MMSI 241346000, CallSign
SVCB5 and IMO 9489297. AIS plots show the tanker operating in the Indian Ocean region.
In 2015, the tanker was re-flagged yet again in Marshall Islands and received a new identity: MMSI
538006517, CallSign V7NZ2, IMO 9489297.
Like any other oil-tanker , this vessel may have reasonably never had any particular story had she
not been the very subject matter of an incident occurred at around 7.15 P.M on February 15, 2012
off the coast of Kerala State in southern India.
Two Indian fishermen on board St Anthony, an Indian fishing boat, Mr.Valentine aka Gelastine and
Mr.Ajiesh Binki, died that night, hit by shots fired allegedly by two Italian Navy Marines, Chief
Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, who were members of a
Vessel Protection Detachment (VPD) on board MV Enrica Lexie, as part of security measures to
protect commercial vessels in an area which is widely known for piracy threaths.
2.Report issued by the Italian Navy.
A report by Italian Navy Admiral Alessandro Piroli focused upon mistakes made by the Master of
MV Enrica Lexie, while expressing deep respect and consideration for the measures taken by the
VPD unit.
According to the Report, the vessel's Master failed to implement the procedures which are
ordinarily commanded in the event of a piracy attack, namely ... " the Captain of MV Enrica Lexie
took only part of the countermeasures which are prescribed in circumstances like those at stake,
ordering increase of the vessel's speed by one knot only, without ordering maneuvers aimed to
modifying the collision course, and waiting too long before issuing warnings by way of syrenes and
whistles , and without taking the iniative for high pressure water cannons to be targeted to
challenge St Anthony's steady approach towards the oil-tanker. No radio contact was either
attempted through Channel 16 of the VHF with the St Anthony...”.
The Italian Navy Admiral's report focuses also upon conduct by St. Anthony's Master, as follows:
“ The boat was proceeding from the right of MV Enrica Lexie, therefore MV Enrica Lexie had to
give way to St Anthony. Yet it is quite astonishing under maritime practice and rules that a small
boat, with great maneuverability like the St. Anthony, kept on a collision course with an oil-tanker
up to a distance less than 100 mt.”
Considering Admiral Alessandro Piroli's report, it is not unreasonable to think that St Anthony may
have been used as a fishing boat as well as for piracy action.
Kerala's Police own report to Indian authorities and the Indian Courts speaks about a curious piece
of circumstantial evidence, which might to absolve the Indian fishing boat from the accusation of
being also a pirats boat: 1,300 kgs of fish catch were allowed to be unloaded and sold from St
Anthony prior to seizure at Kochi port.
It was just a good common-sense decision, which any Police or Coast Guard authority, in India or
elsewhere, would have taken: St.Anthony, as substantial evidence in a maritime incident where two
casualties had occurred, needed to be seized, not its fish catch ( had the latter been kept on-board a
seized boat, more issues would have arisen, inevitably to the detriment of the owner of St. Anthony
and the local community's relationship with Kerala and India authorities ).
From the point of view of the Italian marines being part of the VPD, the collision course made by
the St. Anthony, matched with the actual situation of real, pressing emergency caused possibly also
by MV Enrica Lexie's Master conduct, and the overall scenario on that late evening of February 15,
2012, had unfortunately only one possible outcome: immediate decision to be taken.
Four years after the incident occurred, according to wide press coverage, review by peers,
presentations made by the Italian Government ( three cabinets, being the expression of multipartisan
political parties, have been in office in the interim ) before the Italian Parliament and international
bodies ( among which EU Commission, EU Parliament, UN ), I have yet not read about conclusive
and final evidence that Messrs. Valentine aka Gelastine and Ajiesh Binki were hit by bullets shot at
them by the weapons of the two Italian marines later detained by Kerala Police.
Considering that the on the night of February 14, 2012 another vessel had been challenged by
pirates not far from the area where MV Enrica Lexie was when the incident occurred, the reason for
the VPD being on-board the Italian merchant vessel – protection by Italian State Armed Forces ( not
private security professionals ), the maneuver of a fishing boat steadily approaching and almost
already about to contact the oil-tanker, I am of the opinion that the Italian marines would have
entirely missed and failed their duties, had they determined not to shoot.
3.Considerations by legal commentators published in Indian law reviews.
In my legal practice, either in litigation-arbitration, or in non-contentious matters, particularly
where interests and views of parties belonging to and doing business in different countries were at
stake, I have always applied a fundamental rule: assess facts as if you were the Judge / Arbitration
Court, without indulging in sharing views of a Client unless reasonably and effectively proven.
I think it necessary – in order to provide our readers the best possible opportunity for knowledge
about the case – to take into peculiar account comments published in India.
Mr. Jayan P.A, Assistant Professor, School of Maritime Management, Indian Maritime University,
Chennai, in an article titled “ Jurisdictional Waters Delimitation: India's Exclusive Economic Zone
(EEZ) in the MV Enrica Lexie case “ ( 104 ff. NALSAR Law Review Vol.7 no.1, 2013 ),
contributes in a truly unbiased and scientific approach towards the difficult task of assessing one of
the crucial issues which, in my opinion, inevitably led to the February 15, 2012 incident.
As Mr. Jayan P.A correctly writes, “... since the 17th century, the two basic principles of the law of
the sea have been that a narrow strip of coastal waters should be under the exclusive sovereignity
of the coastal state, and that the high seas beyond should be freely accessible to all. These
principles were originally intended to satisfy and reconcile the requirements of national security
with freedom of trade and navigation. But they were applied to all activities in both areas and ipso
facto defined the legal framework within which fishing activities were carried on. At the Conference
on the Law of the Sea there was only limited support for maintaining the status quo”.
As we well know, the concept of the EEZ is one of the most important pillars of the 1982
UNCLOS, whereby trade-offs, large and small, became necessary in order to accomodate diverse
issues and interests globally.
Therefore a 12 nautical mile territorial sea, and an EEZ of up to 200 nautical miles, in which coastal
states have preeminent economic rights and which spares the need for a territorial sea of 200
nautical miles ( as claimed by some states ) became the new fundamental concepts, around which
other pillars were established.
As a consequence of UNCLOS 1982, each coastal state may claim a territorial sea that extends
seaward up to 12 nautical miles from its baselines, with esnuing sovereignity over waters, airspace,
seabed and subsoil beneath it.
Foreign flag ships enjoy the right of innocent passage while transiting the territorial sea waters,
subject to laws and regulations which a coastal state will introduce and implement in full
compliance with UNCLOS and other rules of international law relating to such passage.
Art.55 of UNCLOS creates the legal regime and distinguishes EEZ from the territorial sea, namely:
“ The EEZ is an area beyond and adjacent to the territorial sea, subject to the specific legal regime
established in this Part, under which the rights and jurisdiction of the coastal state and the rights
and freedoms of other states are governed by the relevant provisions of this Convention”.
According to Dr. Jayan, P.A.'s article “... India has obtained a wide exclusive economic zone (EEZ)
of about 2.172-milion km in all along the 7500 km long coastline3 around it. By volume, ninety per
cent of India‘s global trade is carried out through sea-borne. Over 65% of the world‘s known oil
reserves are located in the Indian Ocean Region (IOR), and 40% of the world‘s offshore oil
production comes from the countries bordering the Indian Ocean4. Seventy per cent of the
petroleum products of the world are transported across the Indian Ocean.
The living and nonliving resources in this zone, which measures about two-third of the landmass of
the country, are exclusive to India, so also the trading and transport facilities navigated through
this area. Moreover, several million people living along the coastline are directly influenced by
oceanography of the EEZ, various environmental hazards and related social issues. Indian EEZ
sustains one of the last healthy Tuna populations in the world. The Greenpeace, in its report
‗Licensed to Loot‘ released on March 13, the non-profit, claims that several vessels of foreign
origin are misusing the Letter of Permit (LoP) scheme of the Indian government to exploit lucrative
Indian fish resources “.
So far, so good, following the very sequence of reasoning applied by an Indian scholar in an article
published in a leading Indian law report.
Yet, the legal scenario becomes quite intrigued when we come to apply the concept of EEZ, under
UNCLOS and Indian laws and regulations, to the February 15, 2012 incident, as the Indian legal
author clearly comments as follows:
“The Supreme Court of India, ruling in 2013 in the MV Enrica Lexie matter, pointed out that India
is a signatory to the United Nations Convention on the Law of the Sea and is bound to adhere to it.
Article 97 of UNCLOS says that in case of a navigation incident such as collision in the high seas,
India cannot detain a vessel registered in another country or initiate proceedings against the crew
if they are not Indian nationals.
The Court said Article 97 will not apply in the case of MV Enrica Lexie as the shooting was a
criminal action, not a navigation incident. Court asserts that India‘s Exclusive Economic Zone, a
distance of 200 nautical miles from the shore, high seas where Unclos 97 could apply for
collisions.”
Facts of the case show that India has insisted on the prosecution of the two Italian marines for an
offense – homicide – committed in its contiguous zone/EEZ, under Indian domestic laws, whereas
Italy has consistently continued to protest India's criminal jurisdiction on the basis of international
law, since, in Italy's opinion, the incident occurred in international waters, the flag of the ship was
Italian, the VPD was constituted of military personnel of the Italian Armed Forces, and demanded
that the two Italian marines be tried in Italy under Italian laws.
It occurs to me that one noticeable issue in the whole matter impacts upon duties imposed under
UNCLOS upon States signatory thereto, namely, Art.100, which reads as follows:
“...Duty to cooperate in the repression of piracy. All States shall cooperate to the fullest possible
extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of
any State”.
It looks like that India, ever since that night of February 15, 2012, took quite a unilateral
interpretation of piracy and the fight against it under UNCLOS, since it preferred to consider the
VPD Italian Navy marines akin ordinary criminals, the effect of such views being total, automatic
departure from UNCLOS, international laws, anything.
Several other Indian law reviews and scholars have dedicated time and care about the MV Enrica
Lexie case, particularly in connection with, and in the aftermath of, the Orders issued on August
24, 2015 by the International Tribunal for the Law of the Sea ( ITLOS ) ( see following § 4 of this
article ).
It is noteworthy to report here that thematter has been closely followed by Indian and foreign
researchers based at the Centre for Public Policy Research Anitha, which is located in Kochi, Kerala
State, India, that is exactly where the MV Enrica Lexie, the St. Anthony fishing boat and the two
Italian Navy marines became all connected to , as a direct consequence of the 2012 incident.
4.ITLOS's Order and current status of the case.
Upon request filed by Italy – not India, by the way – ITLOS timely and efficiently took care of the
case at a stage where interim measures were sought , which, if granted, would have allowed Italy to
substantially improve a status of things which, in my opinion, well deserved to be remedied,
particularly considering the protracted delays of the Indian judicial system as regrettably shown
over four years, which inevitably implied unnecessary pressure upon two members of the Italian
Armed Forces.
To allow our readers to understand the extent of the opposite positions taken by the two sides in the
ITLOS proceedings, I think it advisable to copy below excerpts of the Order whereby submissions
by Italy and India were set forth:
“...Whereas, in paragraph 33 of the Statement of Claim, Italy requests the arbitral tribunal to be
constituted under Annex VII to the Convention (hereinafter “the Annex VII arbitral tribunal”) to
adjudge and declare that:
(a) India has acted and is acting in breach of international law by asserting and exercising
jurisdiction over the Enrica Lexie and the Italian Marines in connection with the Enrica Lexie
Incident.
(b) The assertion and exercise of criminal jurisdiction by India is in violation of India’s obligation
to respect the immunity of the Italian Marines as State officials exercising official functions.
(c) It is Italy that has exclusive jurisdiction over the Enrica Lexie and over the Italian Marines in
connection with the Enrica Lexie Incident.
(d) India must cease to exercise any form of jurisdiction over the Enrica Lexie Incident and the
Italian Marines, including any measure of restraint with respect to Sergeant Latorre and Sergeant
Girone.
(e) India has violated its obligation under the Convention to cooperate in the repression of piracy;
Whereas, at the public sitting held on 11 August 2015, the Agent of Italy made the following final
submissions, which reiterate the submissions contained in paragraph 57 of the Request:
… Italy requests that the Tribunal prescribe the following provisional measures:
(a) India shall refrain from taking 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; and
(b) India shall take all measures necessary to ensure that restrictions on the liberty, security and
movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in
Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the
Annex VII Tribunal;
Whereas, at the public sitting held on 11 August 2015, the Agent of India made the following final
submissions, which reiterate the submissions contained in paragraph 3.89 of the Written
Observations:
[T]he Republic of India requests the International Tribunal for the Law of the Sea to reject the
submissions made by the Republic of Italy in its Request for the prescription of provisional
measures and [to] refuse prescription of any provisional measure[s] in the present case ...“
ITLOS ultimately issued the following decision:
“... THE TRIBUNAL,
(By 15 votes to 6,
Prescribes, pending a decision by the Annex VII arbitral tribunal, the following provisional
measure under article 290, paragraph 5, of the Convention: Italy and India shall both suspend
all court proceedings and shall refrain from initiating new ones which might aggravate or
extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardize or prejudice
the carrying out of any decision which the arbitral tribunal may render...”.
I think that ITLOS was correct in the review, assessment and findings in this case, specifically from
the point of view of procedural issues. In fact, the Hamburg Court determined that periculum in
mora and fumus boni iuris ( i.e adequacy of provisional measures to preserve the respective rights
of the parties to the dispute, on one hand, and sufficient demonstration that the rights both parties
seek to protect in the case are plausible ) were met and that provisional measures were to be issued
albeit not in line with the demands by Italy or India, for that matter.
I also think that India was substantially the losing party based upon a careful reading of the ITLOS
decision.
In failing to consider timing as of the essence in such a geo-politically sensitive case, India made
gross mistakes over four years, up to the proceedings before ITLOS itself, with the obvious result
that Indian courts will no longer preserve any reputation of reliable and timely seat of jurisdiction.
On November 6th, 2015, following Italy' s June 26th, 2015 Notification served upon India
instituting arbitral proceedings under Annex VII to UNCLOS , the Arbitration Tribunal was finally
set up by the Hague Permanent Court of Arbitration's Secretariat.
Presiding Arbitrator will be Vladimir Golitsyn (ITLOS President), and the other four Arbitrators
will be Mr.Francesco Francioni, Mr. P. Chandrasekhara Rao ( respectively appointed by Italy and
India) , Mr.Jin-Hyun Paik ( Korea ), and Mr. Patrick Robinson ( Jamaica ).
The panel of arbitrators will soon have to rule upon Italy's application for provisional measures
aimed to allowing the two Italian Navy marines to return to Italy for good, pending the award in the
merits.
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