Immunity Ratione Materiae of the Marines as Vessel Protection Detachments: A Case Note on the M/V Enrica Lexie Case

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.

State sovereignty and equality under customary international law underpin the principle of immunity ratione materiae. Yet, the definition of the official acts, the exceptions, and the legal basis for this rule is unsettled. State practice is far from consistent.¹ The International Law Commission (ILC) has worked on the study of the Immunity of State Officials from Foreign Criminal Jurisdiction since 2007, only to agree on a limited number of provisions.²

Meanwhile, as piracy and armed robbery at sea sharply increased at the end of the 2000s, several states started to place their personnel on commercial vessels as vessel protection detachments (VPDs).³ VPDs are most commonly uniformed military personnel protecting vessels from their own country. Alternatively, they could be procured and regulated through a Memorandum of Understanding or Status of Forces Agreement (SOFA) between the state VPDs and the vessel's flag state.

Do such VPDs enjoy immunity ratione materiae? The Award of the United Nations Convention on Law of the Sea (UNCLOS) Annex VII Tribunal on the M/V Enrica Lexie case, disputed between Italy and India, affirmed this question.⁴ This was a case where, on 15 February 2012, two Italian marines aboard a commercial vessel, the M/V Enrica Lexie, opened fire and killed two Indian fishermen on an Indian boat, the St. Anthony.⁵ Both ships lay outside India's territorial sea at the time of the incident. India detained the M/V Enrica Lexie at its port in Kochi in Kerala and arrested the marines.⁶ The Italian government sought their release through India's judicial procedure, but this was unsuccessful: the Supreme Court of India rejected Italy's claim on 18 January 2013.⁷ It held that the Indian Union, instead of the Tribunal of Kollam in Kerala, should set up a special court to try this case without specifically deciding on the issue of immunity.⁸ Italy requested the provisional measures be heard before the International Tribunal for the Law of the Sea (ITLOS).⁹ It then brought the case before the Annex VII Tribunal. The Tribunal issued a provisional measures order before ruling on the merits.¹⁰

The Enrica Lexie case provides an occasion to revisit fundamental questions regarding the immunity ratione materiae in the maritime law enforcement context. To elaborate on these points, this article will analyse the judgment to clarify its implications and potential repercussions for developing the principle of functional immunity. It will first briefly review the ruling in its pertinent part. It will not look into issues other than the present one. It will then examine the nature of an official act and the territorial tort exception. Finally, it will discuss this award's potential implications on state officials' law enforcement operations at sea.

I. A Brief Overview of The Judgment

The Tribunal reviewed (1) whether India had the jurisdiction to prosecute the marines and (2) whether those marines enjoyed immunity from India's jurisdiction. On the first point, Italy argued that India lacked the legal basis to try the marines under the law of the sea because they were subject to the exclusive jurisdiction of Italy under UNCLOS Article 92(1).¹¹ In response, India invoked the territoriality and passive personality principles to support its prescriptive jurisdiction.¹² The Tribunal stated that “where an offence was commenced on board one vessel and completed on board another vessel, the flag States of both vessels may have concurrent jurisdiction over the offence”,¹³ by analogy with a case where an offence was commenced in the territory of one state and completed in the territory of another state. Accordingly, it upheld that India was entitled to exercise jurisdiction over the incident according to the territoriality principle.¹⁴ The Tribunal did not address the passive personality principle, stating that it was unnecessary.¹⁵

The Tribunal then decided that its competence extended to the determination of immunity because it was an “incidental question” that necessarily presented itself in the UNCLOS application.¹⁶ Regarding the applicable law, Italy claimed that India's assertion and continued exercise of criminal jurisdiction violated India's obligation to respect the immunity of the marines under UNCLOS Articles 2(3), 56(2), 58(2), and 100, because they were Italian state officials exercising official functions.¹⁷ The Tribunal stated that these provisions were not pertinent to the present issues.¹⁸ It also held that Article 297(1), which Italy invoked as a “subsidiary argument”, was irrelevant.¹⁹ Because there was no provision in the Convention that expressly addressed the immunity ratione materiae of state officials, the Tribunal decided to examine how this matter was governed by customary international law.²⁰

The Tribunal upheld Italy's claim and concluded that the marines enjoyed immunity from India's criminal jurisdiction. While the Tribunal noted that the various aspects of the discussion on this issue were still in flux, the acts “were indeed acts within the scope of their duties as State organs”.²¹ It further stated that the parties did not dispute the existence of the norm.²² It cursorily referred to the International Criminal Tribunal for the Former Yugoslavia's (ICTY's) Blaškić case²³ and the International Court of Justice's (ICJ's) Djibouti case²⁴ which affirmed this rule of customary international law.²⁵

The reasons why the marines were immune from India's criminal jurisdiction were as follows. First, the marines in the present case qualified as state officials according to the Italian domestic statutes. They were subject to a military chain of command. They also had the status as agents of the judicial police, which authorized them to arrest pirates and maintain them under their custody and conduct investigations into crimes of piracy in support of the public prosecutor.²⁶

Second, the marine's acts fulfilled a state function.²⁷ Italy deployed them according to a mandate from the Italian State. In this context, the Tribunal relied on Kolodkin, the ILC's first rapporteur's explanation that the immunity ratione materiae was linked with the attribution to the state.²⁸ It looked into the ILC Articles on Responsibility of States, which provided that the “conduct of any State organ shall be considered an act of that State”.²⁹ It stated that “there is a presumption under international law that a state is right about characterizing its official's conduct as being official in nature”.³⁰ The marines were acting as officers of the Italian Navy and as officers and agents of the judicial police. Even if the marines' acts were found to be ultra vires or contrary to their instructions or orders, upon which the Tribunal did not decide, it would not preclude them from enjoying immunity as long as they acted in the name of the state and their official capacity.³¹

Finally, the Tribunal stated that the “territorial tort” exception did not preclude them from enjoying such an immunity.³² India argued that the alleged crime was committed against Indian nationals on an Indian flagged boat assimilated into India's territory for the application of criminal law, and the marines had been found on India's territory.³³ Recognizing that there was disagreement on whether the exception was established under customary international law, the Tribunal observed that it was incorporated in Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Property (UNCSI).³⁴ Then, “to the extent the rule is thought to exist”,³⁵ it held that the exception would only apply in cases where (1) the acts at issue were committed in the territory of the forum state and (2) by a foreign official who had been present in the territory of that state at the time of the acts.³⁶ The Tribunal did not find that the present case met the first condition because “the legal fiction that ships may be assimilated for jurisdictional purposes with the flag state's land territory has since been universally rejected”.³⁷ Furthermore, the Tribunal stated that there was no support to the argument that the second condition was dispensable. Because the marines were on board the Enrica Lexie and not on Indian Territory, the Tribunal concluded that the exception would not apply in this case.

Accordingly, the Tribunal decided that India must “take the necessary steps to cease to exercise its criminal jurisdiction over the Marines”.³⁸ In reaching this decision, it took note of Italy's commitment to resume its criminal investigation over the incident and that both parties would cooperate in pursuing that investigation.³⁹

II. The Basis for The Immunity Ratione Materiae

A. The Tribunal's Approach

Jurisprudence and authorities confirm that functional immunity applies “with respect to acts performed in an official capacity”, which are acts performed by a state official in the exercise of state authority. Beyond this point, there seems to be no unitary understanding of the functional immunity rule.⁴⁰

On the one hand, an approach holds that the legal regime of functional immunity has a general scope of application.⁴¹ In other words, the immunity applies to all state officials and all acts performed to exercise their duties. The ILC supports this position and leaves the form of the link between the state officials and the state to domestic laws.⁴²

On the other hand, there is the view that the legal regime is “not governed by a single and sole customary norm, as international practice demonstrates that such a regime is both fragmented and complex”.⁴³ It claims a range of norms that change according to various officials, acts, or the exercise of criminal or civil jurisdiction. It supports a context-dependent approach. In this second approach, one maintains that different norms concerning foreign officials' functional immunity apply depending on their activities. In other words, it looks into “whether they are ‘official’ acts prohibited by international law, acts only lawful in international law, or acts specifically protected by international law”.⁴⁴ One of the grounds for such an argument is that the approach to immunity of state officials in the context of crimes diverges significantly.⁴⁵

The Tribunal endorsed the former view, looking at the marines' status and functions. The majority seems to have excluded the context-based approach expressed in the dissenting opinions of Judges Patrick Robinson⁴⁶ and Sreenivasa Rao Pemmaraju.⁴⁷ It also did not distinguish between civil and criminal jurisdictions when relying on the territorial tort exception (see infra). However, there remain a few shortcomings in the Award's reasonings.

B. The Official Acts and the Relevance of the Law of State Responsibility

A twist is how the Tribunal relied on the link between the offensive act and its attribution to the state under the law of state responsibility. It supported the view that functional immunity covers foreign officials when they cannot be held personally responsible for their acts because they were conducted under their state's authority.⁴⁸ The difficulty is that its doctrinal basis is not uniform.

The second special rapporteur, Concepción Escobar Hernández, addressed the criteria for identifying an “act performed in an official capacity” in detail. She described that the characteristics of an act performed in an official capacity are (1) the criminal nature of the act, (2) the attribution of the act to a state, and (3) the governmental authority of the act.⁴⁹

She pointed out that the ILC defined the attribution criteria in the context of international responsibility, with a clear purpose of preventing a state from using private entities as a cover-up. She then analyzed the suitability of the state responsibility criteria for the purposes of immunity.⁵⁰ However, the Tribunal did not pay attention to this analysis.⁵¹

In fact, the first Special Rapporteur, Roman Anatolevich Kolodkin, explicitly supported this connection. Yet, he based his argument on Eileen Denza's comment on the 1961 Vienna Convention on Diplomatic Relations that “the correct test to be applied … is one of imputability. If the conduct question is imputable or attributable to the sending state … then continuing immunity ratione materiae should apply.”⁵² However, it is questionable whether this statement is persuasive in the context of jurisdictional immunity.

It is because “[i]ndividual criminal responsibility and State responsibility often coincide, but they are based nevertheless on different concepts”.⁵³ Immunity concerns exemption from jurisdiction, of which historical development and legal structure do not correspond to that of the state's responsibility.⁵⁴ The elements required for the functional immunity and the attribution criteria under the ILC Draft Articles on the State Responsibility for the Internationally Wrongful Acts⁵⁵ (ILC Articles on State Responsibility) are different.

In addition, the Tribunal held obiter dictum that the ultra vires acts constituted an official act, which was “corroborated by Article 7 of the [ILC Articles on State Responsibility]”.⁵⁶ State practice is not unanimous on whether the individual enjoys functional immunity, notwithstanding the consensus that the act is attributable to the state, even if the individual acts to exercise governmental authority elements. Several domestic courts have refused to recognize immunity ratione materiae regarding illegal ultra vires conduct.⁵⁷ This decision did not give rise to any material consequence, since the Tribunal did not prejudge the question.⁵⁸

III. The Territorial Exception

The decision regarding territorial exception seems to be more problematic. First, the Tribunal's observation that Article 12 of the UNCSI incorporated this exception was incorrect. It is clear from the Convention's texts that the clause is inapplicable to criminal proceedings.⁵⁹ Instead, the Tribunal should have looked into the state practice and opinio juris.⁶⁰ The Tribunal did not – presumably because the ILC decided not to include the exception regarding the commission of the crimes within the forum state's territory in the Draft Article 7, which provided the exception to the immunity ratione materiae in its members’ disagreements.⁶¹ The following assessment is based on the territorial exception, which does not include the “tort” concept under customary international law.⁶²

The doctrinal basis of the territorial exception is in dispute.⁶³ There is no dispute that the negligent offence in the present case does not constitute an international crime to which immunity principle shall not apply.⁶⁴

When it comes to an offence that does not constitute a crime under international law, one way to explain the territorial exception is based on the consent regime. The official is in the territory where they commit the crime because the territorial state agrees on such a presence.⁶⁵ Kolodkin relied on this reasoning in his Second Report to the ILC. He stated that “there are sufficient grounds to talk of an absence of immunity” when the territorial state has not given its consent to the performance of the activity.⁶⁶ A case before the English High Court supported this standpoint.⁶⁷

On the other hand, there is another explanation; functional immunity cannot be enjoyed to the commission of a crime within the forum state's territory. The ILC took this approach when it stated:⁶⁸

that certain crimes, such as murder, espionage, sabotage or kidnapping, committed in the territory of a State in the aforementioned circumstances are subject to the principle of territorial sovereignty and do not give rise to immunity from jurisdiction ratione materiae, and therefore there is no need to include them in the list of crimes for which this type of immunity does not apply.

If one takes this approach, it is possible to argue that the same applies regarding the crimes committed in a vessel registered to a state. While the theory which assimilates the vessel with a floating territory is no longer supported, the exclusivity and the superiority of the flag state's authority remain in the present context.

Notwithstanding the divergence of these views, the Tribunal stuck with the former approach. It stated that ILC's commentary on this subject underscores the importance of the presence of the foreign official in the territory of that state at the time of the acts at issue, and whether such presence was with or without the state's express consent for the discharge of his or her official functions for the exception to apply.⁶⁹ While it did not affect the final outcome of the case, it presents another logical leap of the Tribunal's analysis.

IV. The Award's Implications on Anti-Piracy International Cooperation

Beyond the Award's scope, the following implication of the Award on anti-piracy international cooperation deserves comments. First, this decision will be favourable to the VPDs operating under anti-piracy efforts. While the Tribunal was silent on the normative relationship between functional immunity and maritime law enforcement, VPDs will be immune from foreign criminal proceedings as long as they qualify as an official and their conduct falls within their domestic law mandate.⁷⁰ This decision may put fishermen and other innocent users in a vulnerable position because they may have to seek criminal redress from the VPDs state's courts.

On the other hand, because the flag state of the perpetrator's vessel has criminal jurisdiction over an individual who discharged weapons, whether VPDs or private maritime security contractors, the flag state will have to administer the operations on their registered vessels appropriately.⁷¹ It will include the obligation of due regard, including giving prior warnings, avoiding the fatal use of arms, and the obligation to respect the principles of proportionality and humanity.

The second is its impact on shiprider programmes on territorial seas. Shiprider agreements are concluded between a state with maritime law enforcement capabilities and a state that does not have such law enforcement assets.⁷² The host state allows the assisting state to come into their territorial water to suppress unlawful activities. It is usually the case that the coastal state's law enforcement officers are aboard the vessel. However, in an emergency, the coastal state may agree that the assisting state's officer chases and arrests the suspects without such the officer of the coastal state. It is possible to envision a scenario where the assisting state's personnel accidentally shoot an innocent individual within the host state territory. According to the logic of the Tribunal, the territorial exception may apply, and the officer may be prosecuted before the coastal state's national court. It is more so because the Tribunal made no distinction based on the vessel's status – whether it was a merchant vessel or a coast guard vessel – that VPDs are aboard.

Unlike SOFA, which typically provides the waiver of the host state's jurisdiction, shiprider agreements often do not offer such a clause. Usually, such an arrangement provides that if any loss, injury, or death is suffered as a result of any action taken by the law enforcement agency of one party, in contravention of the agreement or as a result of any improper or unreasonable action taken by that party, the parties shall consult to resolve the matter and decide any questions relating to compensation.⁷³ In the case of shooting innocent civilians, even by mistake, there may be a dispute about whether the operation falls within the agreement's scope and whether the law enforcement officer of the assisting state would enjoy jurisdictional immunity from criminal proceedings in the host state. Therefore, shiprider agreements should include the waiver of jurisdiction clauses to avoid such conflicts.

V. Conclusion

The present Award has brought more confusion than clarity to the immunity ratione materiae from foreign criminal jurisdiction. The Tribunal should have based its argument on the flag state's jurisdiction rather than territorial jurisdiction and the territorial exception without referring to the territorial “tort” jurisdiction under Article 12 of the UNCSI. Nevertheless, it shed light on the rules concerning jurisdictional allocation in anti-piracy operations. Considering the fact that the number of piracy and armed robbery cases continues to rise, the Award is still a welcome development for law enforcing states. Whether this judgment will be supported by state practice is yet to be seen.