The Case of Enrica Lexie: Lotus Redux?

by Duncan Hollis

The Lotus Case is a pillar of international legal education.  Generations of international law students have studied the PCIJ’s opinion that Turkey had not acted in conflict with principles of international law in prosecuting a French national — Lieutenant Demons — for his role in the collision of a French steamer — the S.S. Lotus — with a Turkish vessel — the Boz Kourt — resulting in the death of 8 Turkish sailors and passengers.  The case is notable on no less than three fronts:

1) It encapsulated a strict positivist vision of international law. Rather than envisioning international law as preceding the existence of States, the Court posited that “The rules of law binding upon States … emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.  Restrictions upon the independence of States cannot therefore be presumed.

2) The PCIJ endorsed the “Effects Doctrine” as a basis for prescriptive jurisdiction, allowing State jurisdiction for acts committed outside State territory “if one of the constituent elements of the offence, and more especially its effects, have taken place” in that State.  By equating the Boz Kourt to Turkish territory, the Court found that the effects of the Lotus captain’s actions were felt within Turkey and thus Turkey could prosecute Lieutenant Demons.

3) France’s international lawyers might have lost the case on sloppy drafting of the compromis. The case might have reached a very different result if French lawyers had insisted on limiting the Court’s attention to the passive personality statute on which Turkey was actually prosecuting Lieutenant Demons instead of the compromis‘ broader formulation as to whether any international law basis existed for Turkey’s prosecution.  The Court was able to invoke its version of the Effects Doctrine in response to the latter question, without having to accept the much more controversial proposition that States could exercise jurisdiction over injuries to their nationals abroad as the Turkish statute itself envisioned.

The staying power of the Lotus decision is all the more remarkable in that its specific holding has long since been superseded.  The Court’s view that a ship is part of a State’s territory no longer holds.  The 1952 Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in matters of Collision limited jurisdiction over collisions on the high seas to the flag state or the state of nationality of the crew, a position reiterated in Article 11 of the 1958 Geneva Convention on the High Seas and now Article 97 of the 1982 UN Conventions on the Law of the Sea (“In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary 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 before the judicial or administrative authorities either of the flag State or of the State of which such person is a national“).

Now comes the case of the Enrica Lexie, which seems destined to test the lessons of Lotus and the international maritime law it engendered (the case even has its own Wikipedia entry).  The Enrica Lexie is an Italian-flagged tanker, which in addition to a crew, had a detachment of six Italian marines on board to deter pirate attacks.  On February 15, 2012, two of those marines shot and killed two Indian fisherman on board a fishing boat, the Saint Antony. The facts surrounding the incident are still contested.  The location of the shooting remains disputed, with claims that it occurred at 14 or 22 nautical miles off of India’s coast.  Moreover, the events leading up to the shooting are equally murky. The marines and crew of the Enrica Lexie insist they only fired warning shots against what they believed was a pirate craft, which may or may not have been the Saint Antony or some as yet-unidentified third vessel.  They also insist they had first tried to use other signals to deter the craft’s approach.  In contrast, the fishing crew suggests they were waiting for the tanker to pass when they were fired on without provocation.

When the Enrica Lexie ended up in an Indian port a few days later (whether it did so voluntarily or under the direction of the Indian Coast Guard is disputed), the two marines were detained and eventually charged with murder under the Indian Penal Code. The two were subsequently released on bail on May 30. The next court hearing on the case is scheduled for tomorrow, June 18.

Although I’ve yet to review the Indian law directly, India appears to base its prosecution on domestic laws allowing jurisdiction where a crime is committed against Indian citizens on an Indian ship. Furthermore, India has relied on the SUA Convention as a basis for granting it jurisdiction.  That treaty — to which both India and Italy are parties, seeks to ensure appropriate legal action against certain offenses, including, under Article 3(1)(a) and (g), acts of violence against persons on board a ship likely to endanger its safe navigation that results in death or injury.  Article 6 further requires a State to “take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 3 when the offence is committed: (a) against or on board a ship flying the flag of the State at the time the offence is committed . . .”

Italy, meanwhile, has vociferously insisted that it has jurisdiction over the incident.  In April, Italy paid 10 million rupees to the families of each of the two victims to settle any civil claims.  But it continues to contest any Indian prosecution, saying that (i) the marines are elements of the Italian State and are entitled to sovereign immunity and (ii) that any prosecution should occur under Italian law given that they were on an Italian flagged vessel in international waters. An Italian prosecutor has opened her own investigation into the shooting.

In short, this case looks a lot like Lotus with Italy playing the role of France and India taking on the Turkish assignment.  There are significant differences, of course, in the facts of the two cases, and those differences may in the end lead to a different outcome.  That said, I do think both cases raise similar basic questions about the nature of the international legal order, which explains why we still study the Lotus 85 years on and why attention to the Enrica Lexie should not be limited to the populations of Italy and India.

For starters, I don’t think much of the dispute over where the incident occurred (somewhere between 14-22 nautical miles off India’s coast); the entire disputed range falls outside India’s territorial sea, but within its contiguous zone. Unlike the territorial sea where a State has general prescriptive jurisdiction (subject to some exceptions discussed below), a State only has jurisdiction over “infringement of its customs, fiscal, immigration or sanitary laws and regulations” within its contiguous zone.  And I’m not sure how one could construe the Italian marines’ shooting to fall within any of these four categories, suggesting the territorial location will not support Indian claims.  On the other hand, I also don’t see much utility in Italy trying to invoke the treaties that purported to overturn the Lotus holding by investing prescriptive jurisdiction in the flag-state or that of the nationality of the accused crew.  UNCLOS Article 97 establishes that rule for incidents on the high seas (which this doesn’t seem to be) and even then only for cases of a collision or any other incident of navigation.”  But, this was a shooting not a collision, and I don’t see the navigational incident argument either.  Thus, I don’t think Article 97 limits prescriptive jurisdiction to the flag state — Italy — or that of the accused (also Italy).  Nor do I think the SUA Convention resolves the issue; at best, it signals that both India and Italy could claim jurisdiction over the incident, but does little to resolve which State should have priority.

What I think does set the case apart from the Lotus fact pattern is that the two marines were members of Italy’s military, specifically assigned to this commercial vessel in accordance with Italian law (which apparently was itself consistent with UNSC anti-piracy resolutions).  As much as law professors like to talk about Lieutenant Demons in the Lotus case, it’s worth recalling he was a Lieutenant in France’s merchant marines. France’s objections to his prosecution rested on the fact of his French citizenship, not his position as some sort of agent for the French state.  Not so here; Italian State sovereignty is much more directly at issue in the prosecution of Italian marines who were performing state-mandated functions.  In most incidents involving military interactions with civilian foreign nationals, there’s a status of forces agreement where the sending and receiving States have determined in advance the scope of their respective jurisdictions, but that’s obviously not an available option in this case.  Instead, the issue is more likely to turn on the current state of the international law of sovereign immunity — a key exception to the general rule of territorial prescriptive jurisdiction.  In other words, is India legally obligated not to prosecute agents of the Italian state engaged in official governmental actions, acta jure imperii, regardless of whether those acts occurred.  Or, can India argue that by putting the marines on a private tanker instead of a naval vessel, they should be equated to private security guards instead of agents of the State?

In the end, I think the closest parallel between the Enrica Lexie and the Lotus cases lies in the overarching question about how international law regulates India’s prosecution of the two marines.  Namely, to the extent international law does not specifically proscribe or prohibit India’s prosecution, does that mean it must permit it?  Or, can we say that international law presumptively regulates all State activity, in which case any Indian prosecution must rest on an identifiable rule of international law?  How, we answer this question has systemic implications that go well beyond international maritime law in much the same way as the Lotus case outlasted its specific jurisdictional question to the PCIJ.  Of course, the Enrica Lexie case may still settle, thereby ducking such fundamental inquiries.  Otherwise, I think it bears close watching.  Or, am I missing something?

http://opiniojuris.org/2012/06/17/the-case-of-enrica-lexie-lotus-redux/

6 Responses

  1. 1. Could the SUA be understood as a waiver of sovereign immunity?

    2. There is some tension (OK, a huge contradiction) between Italy’s position before the ICJ in the Immunities case, and the position you outline here. This is criminal, that was civil, and the distinction may be meaningful, but I don’t recall anyone in the Immunities litigation focusing on the point. 

  2. Response…
    Duncan: far from abandoning the notion that a vessel is the equivalent of the territory of the falg or registry, the treaties you mention confirm flag jurisdiction with respect to matters on board.   Further, treaty law does not per se change customary international law with respect to jurisdiction to prescribe.
    In any event, this is a fairly easy case for India to claim objective territorial jurisdiction.  There was an intent to produce effects on the Indian vessel (shots were fired towards the Indian vessel) and there was also a subs.for intent (foreseeability) plus there were effects on board the Indian vessel and, therefore, the equivalent of Indian territory.  That is all that is needed for objective territorial jurisdiciton (2 out of three elements). Yet, additionally, there are Italian acts on board the Indian vessel, by well recognized fiction, because of the continuing act rationale— bullets were placed in motion to have their injurious effects on board the Indian vessel.  Trail Smelter is another relevant case. Note that the SS Lotus crashed into the Turkish vesseland was, in part, French territory inside the territory of Turkey.  Moreover, there was a substitute for intent (foreseeability connected with negligence) and effects (2 out of three elements) plus the continuing act principle — the French vessel was placed in motion and foreseeably had its injurious effects on board the Turkish vessel.  Letter bombs sent through the mail to have their injurious effects in a foreign state also meet all three elements: intent, act by fiction, and effects.
    There are actually cases involving shots fired from one ship to another and shots firecd acress borders.  See, e.g., Paust, Internatonal Law as Law of the United States 417-19 [and notes] (2 ed. 2003); Paust, Van Dyke, Malone, International Law as Law of the United States 597-600 (3 ed. 2009) (West, American Casebook Series).  Moreover, there was a very recent decision of the Eur. Ct. H.R. on the point that flag vessels are the equivalent of the flag’s territory.

  3. Paul — I don’t know whether SUA constitutes an implicit waiver of immunity; I’d be interested in what others think (and I agree that there’s some tension here with Italy’s position in the Immunities case)

    Jordan — We may not agree on the state of the law here at least in so far as what UNCLOS Article 97 means; I read it and the earlier treaties to invest exclusive jurisdiction in the flag state of the vessel causing the collision or the nationality of the accused crew.  Thus, without disputing your characterization of how objective territoriality normally works (bullets across the border and all), I’ve always understood that these treaties wanted to remove that theory from applying to collisions on the high seas.  For example, I know Cyprus (the flag state) and Russia (the state of the crew) objected vociferously to US attempts to extradite several crew members implicated in the collision that killed three US fishermen in the Starbound-Virgo incident ten years ago on the grounds that the US had no jurisdiction even where the victims were US nationals on a US boat (and the US charges were eventually dropped.  Of course, that was a collision clearly covered by Article 97 and the customary international law it codifies, which is harder to apply to the India-Italy situation.  In any case, I’d welcome the views of other readers on the state of the law here.  

  4. Response…
    Duncan: it is possible to read UNCLOS Article 97 to relate merely to enforcement jurisdiction as opposed to prescriptive jurisdiction.  Additionally, it begs the question at stake to think that the only relevant “flag” is that of Italy.  Given Lotus and customary international law allowing objective territorial jurisdiction for India, it is possible to read Article 97 as allowing Indian proceedings to occur in India, “the flag state,” since India cleary is “the flag state,” which, on her flag vessel, the injurious effects occurred. Italian conduct also occurred on the Indian flag by well-known fiction (the continuing act fiction), and there was an intent to produce effects on board that flag vessel. So if enforcement jurisdiction is limited either to “the flag state” or the state of nationality of the accused, India is a flag state.

  5. Sir. In the case of Lotus, Turkish court tried the case. But much earlier in the case of Queen v. Keyn where a German vessel collided with a British vessel and sank it in which an English subject was drowned and died, it was decided that British courts has no jurisdiction to try the case but it was for German court to try.(http://www.uniset.ca/other/cs5/2ExD63.html )
    In this Enrica Lexie case India toyed with the idea of taking up SUA Act but finally dropped it. Now it is as per Indian Penal Code I believe. 

  6. the truth is that india has understood to have done a big mistake  and now they dont know how to exit…….

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.