The Enrica Lexie Incident: Law of the Sea and Immunity of State Officials Issues

2013 ◽  
Vol 22 (1) ◽  
pp. 1-22 ◽  
Author(s):  
Natalino Ronzitti
Keyword(s):  
Military Personnel ◽  
Law Of The Sea ◽  
Indian Coast ◽  
Fishing Vessel ◽  
Criminal Jurisdiction ◽  
Functional Immunity ◽  
High Seas

This article examines the case of the Enrica Lexie, a commercial ship having on board military personnel engaging in anti-piracy duties who was involved in an incident with persons on a fishing vessel off the Indian coast. It takes into consideration India’s claim to exercise its criminal jurisdiction over the Italian marines indicted of having killed two Indian fishermen, the judgments passed by India’s courts and the multiple aspects of the ensuing controversy between India and Italy. It is argued that the two marines enjoy functional immunity, even if it is admitted that India has jurisdiction over the case. The article concludes that new conventional law is needed for incidents like that of the Enrica Lexie paralleling Article 97 UNCLOS on collisions on the high seas.

Functional Immunity of the Marines on the Enrica Lexie: A Reply To Raffaella Nigro

2021 ◽  
Vol 30 (1) ◽  
pp. 227-236
Author(s):  
Natalino Ronzitti
Keyword(s):  
International Law ◽  
Military Personnel ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
Functional Immunity ◽  
Short Reply

This article is a short reply to Raffaella Nigro’s assessment of the Arbitral Tribunal award in the Enrica Lexie case. Professor Nigro analyzes the rule of functional immunity of State officials from foreign criminal jurisdiction and argues that it cannot be applied to the two marines, even supposing that military personnel are covered by such a rule. Professor Nigro bases this conclusion on the facts that the marines were stationed on a commercial vessel and were servicing the interests of the private shipowner. In reply, this author reaffirms the existence of a rule of customary international law on functional immunity and argues that military personnel assigned to commercial vessels are carrying out these duties in order to protect Italian interests and contribute to the defeat of piracy. Therefore, the marines on board the Enrica Lexie were (and still remain) under the protection of the rule on immunity from foreign criminal jurisdiction.

The Turbot War of 1995: Lessons for the Law of the Sea

1996 ◽  
Vol 11 (4) ◽  
pp. 425-458 ◽  
Author(s):  
Alejandro Alvarez von Gustedt ◽  
Christopher C. Joyner
Keyword(s):  
European Community ◽  
Regulatory Framework ◽  
Law Of The Sea ◽  
Fishing Vessel ◽  
Northwest Atlantic ◽  
Fish Stocks ◽  
The Law ◽  
Conservation And Management ◽  
Fishing Regulations ◽  
High Seas

AbstractCanada's seizure of the Spanish fishing vessel Estai in March 1995 touched off severe political tensions between Canada and the European Community. Known as the "Turbot War", the dispute arose over quota levels agreed to by the Northwest Atlantic Fisheries Organization for turbot stocks in fishing grounds straddling the high seas beyond Canada's proclaimed 200-mile national fishery zone. While underscoring tensions between coastal states and foreign fishing nations, this dispute became a diplomatic catalyst for the promulgation in August 1995 of a special UN Convention on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Stocks. The "Turbot War" thus highlighted the utility of regional fishery organizations in monitoring and enforcing international fishing regulations and strengthened the international regulatory framework for managing straddling stocks under the 1982 LOS Convention.

scholarly journals Immunity of State Owned Non-Commercial Ships and Vessel Protection Detachments in the Foreign Criminal Jurisdiction

2020 ◽  
Vol 6 (3) ◽  
pp. 184
Author(s):  
Nikhilesh N
Keyword(s):  
The Other ◽  
Law Of The Sea ◽  
Sovereign Immunity ◽  
Criminal Jurisdiction ◽  
The Status ◽  
Functional Immunity ◽  
The Law ◽  
The Government

This article studying the issue of sovereign immunity of ships and vessel protection detachments from criminal jurisdiction of foreign courts. The issue immunity of ships from foreign criminal jurisdiction can be understand from Schooner Exchange case onwards. In the initial stages the courts were given absolute immunity of the government ships in the foreign jurisdiction. Later on the courts, jurists and states classified the immunity in two heads such as personal immunity and functional immunity. Immunity not only given to the troika but also to the other officials engaged in the sovereign functions for their respective states with the exception of universal crimes. The status of the warships, government non commercial ships under the law of the sea convention is analysing.  At the end the Article considering whether functional immunity applicable to the vessel protection detachments appointed by the states to protect their ship from piracy in accordance with the IMO guidelines.

Global Governance of Deep-Sea Fisheries

2004 ◽  
Vol 19 (3) ◽  
pp. 289-298 ◽  
Author(s):  
Moritaka Hayashi
Keyword(s):  
Global Governance ◽  
Deep Sea ◽  
Law Of The Sea ◽  
Governance System ◽  
Legal Regime ◽  
Short Term ◽  
Fish Stocks ◽  
The Law ◽  
Global Agreement ◽  
High Seas

AbstractThis article considers the gaps in the existing legal regime on deep-sea fisheries and explores a more effective global governance system. It is proposed that a new global agreement, modeled on the 1995 UN Fish Stocks Agreement, be negotiated covering deep-sea stocks as well as other high seas resources, so that all fisheries on the high seas may be covered. The proposed agreement would complete the gaps in high seas fisheries regime and serve as an effective link between the UN Convention on the Law of the Sea and regional fisheries bodies. As a short-term measure, FAO should prepare a set of guidelines covering all types of deep-sea fisheries, including shared and transboundary stocks as well as discrete high seas stocks. In addition, FAO's Committee on Fisheries should be strengthened in its global governance role, including co-ordination of all regional fisheries bodies

Flag Verification on the High Seas: Understanding Requirements for Masters and Commanders

2015 ◽  
Vol 30 (2) ◽  
pp. 335-360 ◽  
Author(s):  
Angeline Lewis
Keyword(s):  
Law Enforcement ◽  
Reasonable Doubt ◽  
Law Of The Sea ◽  
Evidence Based ◽  
Objective Evidence ◽  
United Nations Convention ◽  
Enforcement Authority ◽  
The Right ◽  
Proper Balance ◽  
High Seas

Operational reporting from the Middle East indicates that the exercise by warships of a right of visit on the high seas, in order to verify the flag of the boarded vessel, is an important part of contemporary maritime enforcement operations. However, this reliance on ‘flag verification boardings,’ pursuant to Article 110 of the United Nations Convention on the Law of the Sea 1982, challenges the proper balance of law enforcement authority against the traditional freedom of navigation. It is therefore necessary to establish clearly for both civilian masters and warship commanders where the evidentiary threshold for reasonable doubt as to the nationality of vessels lies, so as to justify non-consensual visit and search by a foreign warship. This article makes an objective, evidence-based assessment of the threshold, concluding with a caution against over-stretching the right of visit to accommodate law enforcement purposes not envisaged in the drafting of Article 110.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

2021 ◽  
Vol 30 (1) ◽  
pp. 209-225
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Current Practice ◽  
The State ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
Majority Judgment ◽  
Functional Immunity ◽  
The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

8. The law of the sea

2021 ◽  
pp. 104-116
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
The Other ◽  
Exclusive Economic Zone ◽  
Law Of The Sea ◽  
Economic Zone ◽  
The Law ◽  
The One ◽  
High Seas

The law of the sea governs the relations of States in respect of the uses of the seas. It allocates competences between, on the one hand, coastal States wishing to extend their jurisdictional reach as far as possible and the flag States, on the other, wishing to have the seas open for vessels to navigate and for other uses. The chapter discusses the laws applicable to each maritime zone; namely, internal waters, the territorial sea, the contiguous zone, the exclusive economic zone, the high seas, and the seabed. It also sets out the rules of maritime delimitation between States with opposite or adjacent coastlines.

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