The Centre for Public Policy Research (CPPR) organised a webinar on the topic ‘Enrica Lexie Award: The Takeaways for India’ on July 16, 2020. The distinguished speakers were VM Syam Kumar, Advocate at the High Court of Kerala, Kochi and Deepak Raju, Senior Associate at Sidley Austin LLP, Geneva. The webinar was moderated by Nithin Ramakrishnan, Research Scholar at CPPR & Assistant Professor, Chinmaya Vishwavidyapeeth (CVV). Introductory Remarks were given by Dr Harisankar K Sathyapalan, Research Fellow at CPPR & Assistant Professor, CUSAT, while the concluding remarks were given by Dr Shannu Narayan, Assistant Professor at IIM Calicut.
Dr Sathyapalan put forth the opening remarks on the on-going anticipation revolving around the arbitral award, rendered by the Hague-based Permanent Court of Arbitration, and how it can be a huge victory for India despite the criticisms of the same in debate. He presented the facts revolving around the case from 8 years ago where 2 marines onboard the Italian-flagged commercial oil tanker MV Enrica Lexie, shot and killed 2 Indian fishermen (on board a vessel called St Antony) in the Arabian Sea, 20.5 nautical miles from the coast of Kerala. Speaking on the case, he argued that the jurisdiction was exercised by the Indian authorities under the Extra Territorial Jurisdiction as the incident took place outside of the Indian Territory. The proceedings commenced at the Kerala High Court, and subsequently at the Supreme Court of India which specified that India had jurisdiction over the matter and thus instituted a special court for criminal proceedings against the marines. Italian authorities moved to the international forum under UNCLOS (United Nations Convention on the Law of the Sea), i.e. ITLOS, seeking provisional measures to the effect of suspending all the criminal legal proceedings pending before Indian Courts. He also raised the concern of how a precedent was set that even armed marines/soldiers on board ships are allowed immunity and that not even the Captain of the ship has any authority over such actions by the State officials.
Taking forward the discussion, Adv Shyam Kumar brought up the questions of the existing laws, how those would apply to the facts on the ground and to what extent would the award meet the necessities of the times. He highlighted some aspects of the Law of the Sea as it is a common perception, or perhaps a misconception, that the Law of Sea is solely represented by UNCLOS. While UNCLOS continues to be widely accepted and is deemed relevant, he clarified that UNCLOS was not the final source of norms in the Law of the Sea and it cannot be the sole repository of all the existing maritime laws. He extended the argument to UNCLOS not having been witness to any substantial norm-formulation in the 21st Century and the need for it to be updated.
Addressing the Indian law for the case-in-point, he noted how the 1976 Maritime Zones Act varies from the UN clause in terms of the ambit of jurisdictions. The Indian law provides for an additional interest of ‘security’. The biggest takeaway from the arbitral award, according to Adv Shyam Kumar, is how despite being challenged by Italy—with the digging up of the contradictions against the Indian law and pleas for the same to be declared illegal against International law—there has been no international action in this regard and that Indian statutory norms do not stand invalid.
Turning to the criticisms, he concluded by strongly arguing against the provisions of sovereign immunity, especially in the context of Enrica Lexie, as there is clear categorisation of vessels under UNCLOS.
Mr Deepak Raju extended the deliberation by defining the basal term of jurisdiction and under what circumstances it becomes a bone of contention and conflict. He also touched upon the meaning and significance of a flag-bearing boat: that every vessel has to have one nationality, and that is expressed through a flag. He stressed upon the fact that jurisdiction shrinks as one moves away from the well-defined territorial zones. Countering the Italian allegation of the Indian boat not presenting a flag to prove its nationality, Mr Raju argued in favour of the Saint Antony, clarifying that a flag alone does not always stand as proof and that the boat was registered in the Indian State of Tamil Nadu.
He further explained how the question of immunity was of the customary international laws’ concern, and could not be interpreted citing the UNCLOS. The turning point in the Tribunal’s stance however, can be owed to the question of immunity. He explained how India raised objection to this by taking example of territorial tort or the Rainbow Warrior case.
Mr Raju suggested that India should keep an eye on incidental jurisdiction as India is a frequent litigator in some of the systems of international dispute settlements. He concluded his take on the issue by underlining the lessons for India—the need for India to explore ways of achieving consistency between the 1976 Maritime law and that of UNCLOS, as the former has a broader scope of asserting powers. Also, that India needs to be clear and sensitive to such matters of jurisdiction that might crop up in the future. The speaker also hoped for training programmes for Indian fishermen and their safety, for example, with respect to the proximity of vessels.
The webinar was concluded by Dr Shannu Narayan, who put forth extending arguments of jurisdiction, immunity and international laws.
The report is prepared by Ashwati and Jessica, Research Interns with CPPR-Centre for Strategic Studies.