Enrica Lexie
On 15 February 2012, the Enrica Lexie, an Ital- ian commercial vessel, encountered the Indian fishing vessel St. Anthony at a distance of ap- proximately 20.5 nautical miles from the coast of Kerala, India. Because of the high risk of piracy in the Arabian Sea, the Italian vessel carried armed military personnel on board – a fact which Indian authorities had previously been apprised.
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When the Enrica Lexie encountered the St. An- thony, the Enrica Lexie personnel on board appar- ently mistook the St. Anthony for a pirate vessel and, as a result of gunshots fired from the Enrica Lexie, two Indian nationals on board the St. An- thony lost their lives. After the incident, the Ital- ian vessel continued on its way toward Djibouti. At the request of Indian authorities, however, the Enrica Lexie subsequently returned to Kerala, where it docked in the Port of Cochin on 16 Feb- ruary 2012 to assist with the investigation. Within days, two Italian nationals were arrested by In- dian authorities in connection with the shootings. The criminal prosecution in India of the two Ital- ian nationals is still ongoing.
In response to the arrests, Italy made essentially the same arguments advanced by France in the Lotus case, i.e., that India had no jurisdiction to try the Italian nationals allegedly involved in the shooting, and that such jurisdiction belonged ex- clusively to Italy, as the flag state of the Enrica Lexie. (The fact that the accused were also active members of the Italian military raises a separate but equally important issue regarding sovereign immunity, which will not be discussed here.) In the 85 years since the Lotus case was decided, however, the law of the sea has evolved consid- erably.
First, the area where the incident occurred (i.e., some 20.5 nautical miles off the coast of Kerala, India) is no longer technically part of the high seas. Rather, it forms part of India’s contiguous zone, which extends up to 24 nautical miles from the baselines from which the breadth of the ter-
ritorial sea is measured. The area also forms part of India’s exclusive economic zone (EEZ), which extends up to 200 nautical miles from the same baselines. Under the 1982 United Nations Con- vention on the Law of the Sea (UNCLOS), India, as the coastal state, possesses certain limited sovereign rights and exclusive jurisdictions within its EEZ, but it cannot treat the EEZ as if it were part of its own territory.
Second, UNCLOS now contains specific provi- sions regarding the exercise of criminal jurisdic- tion within the contiguous zone and within the EEZ. Article 33 paragraph 1 of UNCLOS provides, with respect to the contiguous zone, that the coastal state “may exercise the control neces- sary to … prevent infringement of its customs, fiscal, immigration or sanitary laws and regula- tions within its territory or territorial sea [and] punish infringement of the above laws and regu- lations committed within its territory or territorial sea.” Most notably, Article 97 paragraph 1 of UN- CLOS provides:
In the event of a collision or any other inci- dent of navigation concerning a ship on the high seas, involving the penal or disciplin- ary 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 be- fore the judicial or administrative authori- ties either of the flag state or of the state of which such person is a national.
Although Article 97 is contained within Part VII of UNCLOS (which deals with the high seas), it also applies to the EEZ by virtue of Article 58 para- graph 2 of UNCLOS, but only insofar as it is not incompatible with the provisions of Part V of UN- CLOS (which deals with the EEZ).
Whereas the Lotus court, in 1927, was essen- tially writing on a clean slate, a court today must take into account the individual and cumulative effects of the new conventional rules contained
ILSA Quarterly » volume 22 » issue 2 » December 2013
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