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Immunity Ratione Materiae of the Marines as Vessel Protection Detachments: A Case Note on the M/V Enrica Lexie Case
Published online by Cambridge University Press: 24 June 2022
Abstract
This case note critically analyses the logic of M/V Enrica Lexie of 2020 with a particular focus on the issue of the immunity ratione materiae. This judgment is important in terms of the development of the principle of sovereign immunity. It first reviews the background of the case and the judgment. It then examines (1) the basis of the principle of sovereign immunity and (2) the territorial exception and its relevance to the law of the sea. It criticizes the logic of the judgment, particularly on its reference to the United Nations Convention on Jurisdictional Immunities of States and Their Property, regardless of the fact that the instrument only applies to civil proceedings. Finally, it comments on the Award's implication for anti-piracy international cooperation.
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- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the Asian Society of International Law
References
1 SARI, Aurel, “The Status of Armed Forces in Public International Law: Jurisdiction and Immunity” in ORAKHELASHVILI, Alexander, ed., Research Handbook on Jurisdiction and Immunities in International Law (Cheltenham, UK: Edward Elgar Publishing, 2015), 319 at 356Google Scholar; ALEBEEK, Rosanne VAN, The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law (Oxford: Oxford University Press, 2008) at 103CrossRefGoogle Scholar; ALEBEEK, Rosanne VAN, “Functional Immunity of State Officials from the Criminal Jurisdiction of Foreign National Courts” in RUYS, Tom, ANGELET, Nicolas, and FERRO, Luca, eds., The Cambridge Handbook of Immunities and International Law (Cambridge: Cambridge University Press, 2019), 496Google Scholar; FOX, Hazel and WEBB, Philippa, The Law of State Immunity, 3rd ed. (Oxford: Oxford University Press, 2013) at 91Google Scholar; SHAW, Malcolm N., International Law (Cambridge: Cambridge University Press, 2017) at 523CrossRefGoogle Scholar.
2 The ILC has provisionally adopted seven draft articles and its commentaries. See Report on the Work of the 69th Session, International Law Commission (ILC), UN Doc. A/72/10 (2017) [ILC Report of the 69th Session] at 175.
3 See FARNELLI, Gian Maria, “Vessel Protection Detachments and Maritime Security: An Evaluation of Four Years of Italian Practice” (2015) 1 Maritime Safety and Security Law Journal 16Google Scholar; EBOLI, Valeria and PIERINI, Jean Paul, “Coastal State Jurisdiction over Vessel Protection Detachments and Immunity Issues: The Enrica Lexie Case” (2012) 51(1) The Military Law and the Law of War Review 117Google Scholar.
4 The “Enrica Lexie” Incident (Italy v. India), Award of 21 May 2020, [2020] PCA Case No. 2015-28 [Enrica Lexie].
5 The boat was not registered under the Indian Merchant Shipping Act, which would have provided the nationality. Yet, the boat was registered under the fisheries law of the State of Kerala, and the issue of the nationality was not questioned in the Award.
6 For the facts of the case, see Enrica Lexie, supra note 4 at paras. 79–170. See also RONZITTI, Natalino, “The Enrica Lexie Incident: Law of the Sea and Immunity of State Officials Issues” (2013) 22 The Italian Yearbook of International Law 3Google Scholar; GANDHI, Manimuthu, “The Enrica Lexie Incident: Seeing Beyond the Grey Areas of International Law” (2013) 53 Indian Journal of International Law 1Google Scholar.
7 Republic of Italy & Ors v. Union of India & Ors, Judgment of 4 September 2012, [2012] Supreme Court of India Writ Petition (Civil) No. 135 of 2012 with Special Leave Petition (Civil) No. 20370 of 2012.
8 Ibid., at para. 101.
9 The “Enrica Lexie” Incident (Italy v. India), Order of 24 August 2015, Provisional Measures, [2015] ITLOS Case No. 24.
10 The “Enrica Lexie” Incident (Italy v. India), Order of 29 April 2016, Request for the Prescription of Provisional Measures, [2016] PCA Case No. 2015-28.
11 Enrica Lexie, supra note 4 at para. 300.
12 Ibid., at paras. 331–40.
13 Ibid., at para. 366.
14 Ibid., at para. 367.
15 Ibid., at para. 368.
16 Ibid., at para. 811. This part is also important for the development of the judicial dispute settlement under UNCLOS regime. This article will not get into this issue for the space limit.
17 Ibid., at para. 812.
18 Ibid., at para. 798.
19 Ibid., at para. 803.
20 Ibid., at para. 842. In other words, the present issue is no longer a dispute over the application and interpretation of UNCLOS (see UNCLOS art. 297(1)). The Tribunal affirmed its jurisdiction to decide on the issue of the immunity because it is “an incidental question” to the issue whether India has a jurisdiction: Ibid., at para. 811.
21 Ibid., at para. 844. The Tribunal cited the ILC's report of Roman Anatolevich Kolodkin, the ILC project's first special rapporteur, and the ILC's draft articles.
22 Ibid., at para. 846.
23 Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 (Prosecutor v. Blaškić), Judgment of 29 October 1997, [1997] ICTY Case No. IT-95-14-AR 108 bis [Blaškić] at para. 38.
24 Certain Question of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, [2008] I.C.J. Rep. 177 [Djibouti] at 243, para. 191.
25 Enrica Lexie, supra note 4 at para. 844.
26 Ibid., at paras. 848–55.
27 Ibid., at paras. 859–62.
28 Ibid., at para. 857.
29 Ibid., at para. 858.
30 Ibid.
31 Ibid., at para. 860.
32 Ibid., at para. 872. The “territorial tort” exception is a rule that the court must deny the immunity when the defendant State's tortious conduct in the territory of the forum State resulted in harm or loss to the claimant.
33 Ibid., at para. 830.
34 Convention on Jurisdictional Immunities of States and Their Property, 2 December 2004, GA Res. 59/38, UN Doc. A/59/508 (not yet entered in force).
35 Enrica Lexie, supra note 4 at para. 868.
36 Ibid.
37 Ibid., at para. 869.
38 Ibid., at para. 888.
39 Ibid., at para. 889.
40 Immunity of State Officials from Foreign Criminal Jurisdiction, Fourth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, by Concepción Escobar HERNÁNDEZ, UN Doc. A/CN.4/686 (2015) [Fourth Special Report] at 7. For an attempt to categorize divergent theories, see Riccardo Pisillo MAZZESCHI, “The Functional Immunity of State Officials from Foreign Jurisdiction: A Critique of the Traditional Theories” (2015) 17 Questions of International Law 3.
41 Mazzeschi, Ibid., at 7.
42 ILC Report of the 69th Session, supra note 2 at 235.
43 Mazzeschi, supra note 40 at 8.
44 Ibid.
45 PEDRETTI, Ramona, Immunity of Heads of State and State Officials for International Crimes (Leiden, Boston: Brill Nijhoff, 2014) at 101Google Scholar.
46 Enrica Lexie, Dissenting Opinion of Judge Patrick Robinson, supra note 4 at para. 63. Judge Robinson emphasized “a very peculiar, direct and specific contractual relationship between the Italian Government and the shipowners of the Enrica Lexie”.
47 Enrica Lexie, Dissenting Opinion of Judge Sreenivasa Rao Pemmaraju, supra note 4 at paras. 75–8. Judge Rao stated that “the terms and conditions of the placement of the Marines … are decisive to determine the eligibility of the Marines for immunity under international law”. The VPDs’ protection of the commercial vessels, based on the contract between the government and the shipowners, was not for the “government non-commercial purpose”. It is noted, however, there was hardly any commercial element in marine's opening of the fire against Indian fishermen. For the critique, see the comments at Aurel SARI, “Part 1 – Tanker, Jailer, Soldier, Sailor: Functional Immunity and the Enrica Lexie Award” Just Security (4 September 2020), online: Just Security <https://www.justsecurity.org/72284/part-1-tanker-jailer-soldier-sailor-functional-immunity-and-the-enrica-lexie-award>.
48 See for instance, Van Alebeek, The Immunity of States and Their Officials, supra note 1 at 106; ALEBEEK, Rosanne VAN, “National Courts, International Crimes and the Functional Immunity of State Officials” (2012) 59 Netherlands International Law Review 5Google Scholar; Van Alebeek, “Functional Immunity of State Officials”, supra note 1 at 498; CASSESE, Antonio and GAETA, Paola, Cassese's International Criminal Law, 3rd ed. (Oxford: Oxford University Press, 2013) at 240CrossRefGoogle Scholar.
49 Fourth Special Report, supra note 40 at 42.
50 Ibid., at 49.
51 Enrica Lexie, supra note 4 at paras. 856–862.
52 Immunity of State Officials from Foreign Criminal Jurisdiction, Second Report on Immunity of State Officials from Foreign Criminal Jurisdiction, by Roman A. KOLODKIN, UN Doc. A/CN.4/631 (2010) [Second Report by Roman Anatolevich Kolodkin] at 404, para. 25, citing DENZA, Eileen, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 3rd ed. (Oxford: Oxford University Press, 2008) at 363CrossRefGoogle Scholar.
53 Pedretti, supra note 45 at 332. Note, Pedretti assumes that crimes pursuant to international law are often committed by state officials in their official capacity on behalf of the state.
54 In the present case, too, Italy granted substantial payment to the victims’ families, not as a legal due but as ex gratia. See Ronzitti, supra note 6 at 6.
55 Responsibility of States for Internationally Wrongful Acts, GA Res. 56/83, UN Doc. A/56/49(Vol. I)/Corr.4 (2001).
56 Enrica Lexie, supra note 4, at para. 860. The Tribunal made it clear that it would not prejudge whether the conducts were ultra vires or contrary to the instructions or orders.
57 Pedretti, supra note 45 at 325.
58 Enrica Lexie, supra note 4 at para. 860.
59 The clause only covers “torts” and provides the pecuniary compensation. Roger O'Keefe explains that the Convention is inapplicable to criminal proceedings. O'KEEFE, Roger, “The ‘General Understandings’” in O'KEEFE, Roger, TAMS, Christian J., and TZANAKOPOULOS, Antonios, eds., The United Nations Convention on Jurisdictional Immunities of State and Their Property: A Commentary (Oxford: Oxford University Press, 2013), 19Google Scholar at 21.
60 FRANEY, Elizabeth Helen, “Immunity from The Criminal Jurisdiction of National Courts” in ORAKHELASHVILI, Alexander, ed., Research Handbook on Jurisdiction and Immunities in International Law (Cheltenham, UK: Edward Elgar Publishing, 2015), 205Google Scholar at 227.
61 ILC Report of the 69th Session, supra note 2 at 183, para. 11.
62 Commentators are not unanimous on this point. For instance, Joanne Foakes and Roger O'Keefe stated in the Commentary of UNCSI that it remains to be seen whether such an exception is established under customary international law: FOAKES, Joanne and O'KEEFE, Roger, “Article 12” in O'KEEFE, Roger, TAMS, Christian J., and TZANAKOPOULOS, Antonios, eds., The United Nations Convention on Jurisdictional Immunities of State and Their Property: A Commentary (Oxford: Oxford University Press, 2013), 209 at 224Google Scholar.
63 ILC Report of the 69th Session, supra note 2 at 172, para. 126.
64 Ibid., at 176, Article 7.
65 Franey, supra note 60 at 227.
66 Second Report by Roman Anatolevich Kolodkin, supra note 52 at 426, para. 94(p).
67 Khurts Bat v. Investigating Judge of the German Federal Court, [2011] EWHC 2029, 147 ILR 633, at paras. 96–9. See SANGER, Andrew, “Immunity of State Officials from the Criminal Jurisdiction of A Foreign State” (2013) 62 International and Comparative Law Quarterly 193CrossRefGoogle Scholar.
68 ILC Report of the 69th Session, supra note 2 at 188, para. 24.
69 Enrica Lexie, supra note 4 at para. 870.
70 The function and the mandate differ from a State to another. For the assessment of the legal nature of the VPDs, see NERI, Kiara, “The Use of Force by Military Vessel Protection Detachments” (2012) 51 Military Law and The Law of War Review 73CrossRefGoogle Scholar.
71 IMO has adopted guidelines for private contractors’ use of arms: Revised Interim Recommendations for Flag States regarding the use of Privately Contracted Armed Security Personnel on board ships in the High Risk Area, International Maritime Organization (IMO), IMO Doc. MSC.1/Circ.1406/Rev.3 (2015). There are efforts to promote the human rights law at sea. See Human rights at Sea, “Geneva Declaration on Human Rights at Sea” (January 2022), online: Human rights at Sea at <https://www.humanrightsatsea.org/GDHRAS>. For a comprehensive study on the human rights protection at anti-piracy operations, see Anna PETRIG, Human Rights and Law Enforcement at Sea: Arrest, Detention and Transfer of Piracy Suspects (the Hague: Martinus Nijhoff, 2014).
72 See in general, GUILFOYLE, Douglas, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009) at 79CrossRefGoogle Scholar.
73 For instance, see the U.S.-Vanuatu Agreement Concerning Counter Illicit Transnational Maritime Activity Operations, 31 October 2016 (entered into force 31 October 2016), online: U.S. Department of State at <https://www.state.gov/wp-content/uploads/2019/05/39-Signed-Shiprider-Agreement-with-Vanuatu-.pdf> at Article XIX.