(Editor’s Note: This is the second of a two-part series on the significance for international law of the recent arbitral award in the “Enrica Lexie” case. )
Part 1 of this analysis of the arbitral award in the Enrica Lexie case examined the question of jurisdiction and the nature of the shooting incident. It argued that India’s exercise of criminal jurisdiction over the two Italian marines rests on several jurisdictional principles, including the right of exclusive flag-State jurisdiction under Article 92(1) of UNCLOS, and that consequently the question whether India is barred by applicable immunities from taking enforcement measures is one that directly – not merely incidentally – concerns the “interpretation or application” of UNCLOS. It also argued that the use of lethal force by the two Italian marines was a sovereign act, rather than a commercial transaction, as it involved the exercise of sovereign powers. The second part of the analysis now turns to the territorial tort exemption and to the legal position of armed forces present on foreign territory.
The Territorial Tort Exception
In response to Italy’s immunity claim, India invoked the territorial tort exception. As expressed in Article 12 of the United Nations Convention on State Immunity, the exception provides that one State cannot invoke immunity from foreign jurisdiction in proceedings relating to pecuniary compensation for death or injury caused by an act or omission attributable to it, where that act or omission occurred in whole or in part in the territory of the forum State and its author was present in that territory at the time of the act or omission.
According to India, the territorial tort exception applies in the present case because the act was “committed against Indian nationals, on an Indian flagged boat, which is assimilated to India’s territory for the application of criminal law, and the Marines have been found on India’s territory” (para 830). This argument is about a century too late, give or take.
In the past, ships were sometimes described as floating parts of their flag State’s national territory. As Blackburn J remarked in The Queen v. Anderson (1865), “a ship which bears a nation’s flag is to be treated as a part of the territory of that nation. A ship is a kind of floating island”. This idea continued to find favor with some authors and courts. For instance, in The Franconia, Amphlett J labelled the floating-island theory a “convention fiction”.
Others were less kind. In the case of Chung Chi Cheung, a sad incident involving a cabin boy who shot the captain of a Chinese maritime customs cruiser while the vessel was in the territorial waters of Hong Kong, Lord Atkin had no hesitation in rejecting the doctrine as a “quite impracticable” legal fiction which, like all legal fictions, had “a tendency to pass beyond their appointed bounds and to harden into dangerous facts.” Whereas territorial jurisdiction is absolute and exclusive, ships have a habit of wandering into the territorial waters of other States, which makes the notion that they are extraterritorial floating islands difficult to sustain. In the wake of Chung Chi Cheung, a growing number of courts therefore abandoned the theory, switching to the language of jurisdiction and immunities instead. Incidentally, these include the High Court of Kerala, which in 1961 dismissed a claim that foreign ships in the Port of Kochi should be exempt from local sales tax on the ground that they were floating islands of their flag-State by holding that the “concept of a floating island is only a metaphor, and the fallacy lies in mistaking the metaphor for a manifestation”.
India seems to have fallen victim to that fallacy, treating the St Antony as if it were land territory and thus mistaking a legal fiction for hard fact. However, as the Arbitral Tribunal pointed out, the assimilation of ships with national territory is no longer accepted (para 869). Since the shooting did not in fact take place on Indian territory, and the marines were not present in India at the time of the incident, the territorial tort exception is simply inapplicable in the present case (para 872).
Besides, it is open to question whether the territorial tort exception is available in the context of criminal proceedings at all. It is also open to debate whether it applies to foreign armed forces. If the exception is a rule of customary international law, it could only have emerged as a limitation to the once absolute doctrine of State immunity. This means that the burden to prove that the exception exists and that it applies to foreign armed forces rests with those who seek to invoke it. However, in a string of recent cases, several courts have rejected the applicability of the territorial tort exception to foreign forces, including the European Court of Human Rights in McElhinney v. Ireland (para 38), the Italian Supreme Court in Lozano and the International Court of Justice in Jurisdictional Immunities (para 77).
The Immunities of Foreign Armed Forces
This last point leads to a more general observation. As the International Court of Justice pointed out in Jurisdictional Immunities, the task in that case was not to decide general questions of State immunity, but to determine the scope of the immunities enjoyed by foreign armed forces for acts carried out in the context of an armed conflict (para 65). Similarly, in the Enrica Lexie case, the Arbitral Tribunal’s task was not to occupy itself with the functional immunities of State officials in general, but with the immunities enjoyed by members of the armed forces.
This distinction is of some significance. While all State officials enjoy immunity from foreign criminal jurisdiction for acts committed in the exercise of State authority, regardless of their rank and specific function, certain categories of State officials benefit from more extensive jurisdictional privileges and immunities than others. This point is well established in the case of diplomatic personnel and heads of State, for example, but it is often overlooked when it comes to military personnel.
State practice on the jurisdictional privileges and immunities of foreign armed forces is vast. Initially, much of the modern practice has taken the form of domestic court proceedings. However, beginning with the First World War, States have started to regulate the legal position of foreign troops mostly through tailor-made instruments, known as status of forces agreements. With the proliferation of such agreements, cases addressing the immunities of foreign forces under customary international law have become less frequent.
There can be little doubt, however, that customary rules do exist in this field, which are applicable in the absence of status of forces agreements. This is so because State practice, despite some variations, has given rise to and repeatedly affirmed certain basic principles. These include, first, the principle that members of visiting forces are exempt, as a minimum, from local jurisdiction in civil and criminal matters for acts performed in the exercise of their official duties, and, second, the principle that operational considerations warrant more extensive jurisdictional immunities in circumstances where visiting forces are deployed in more challenging conditions (for more detail, see Sari and Sari). These specialized immunities supersede the general rules of functional immunity of State officials, as recognized by the International Law Commission. Accordingly, even if the general rules of functional immunity were to distinguish between sovereign acts and commercial transactions, no such distinction is drawn by the rules applicable to foreign armed forces. The question therefore arises: in the absence of a status of forces agreement between Italy and India, did the two marines benefit from the specialized immunities due to foreign military personnel under customary international law?
As the Arbitral Tribunal found, the Enrica Lexie made its way to Kochi harbor at the request of the Indian authorities (paras 474–505). Accordingly, the presence of Italian military personnel within the territorial waters of India, and subsequently its land territory, was at the invitation and express consent of the Indian authorities. There is some debate as to whether the customary immunities of military personnel are applicable only if their presence abroad is consensual or whether they are also entitled to immunity when present without consent. What is beyond doubt, however, is that those immunities do apply when forces are present at the invitation of the territorial sovereign. This point was established by the United States Supreme Court in The Schooner Exchange, one of the earliest cases on visiting forces, and affirmed repeatedly since. According to Chief Justice Marshall,
A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is where he allows the troops of a foreign prince to pass through his dominions.
In such case, without any express declaration waiving jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith.
In the present case, India cannot invite members of the Italian armed forces on deployment into its territory and decline to respect their customary immunities without violating its faith, to use Chief Justice Marshall’s words.
The fact that the two marines were on board a commercial vessel makes no difference in this respect. A long line of cases affirms that the crew and military personnel on board a warship benefit from immunity on dry land, at least while carrying out their duties. Of course, the Enrica Lexie is a commercial vessel and not a warship. However, these cases also confirm that sailors and soldiers are to be treated alike for the purposes of immunity (Tsoukharis, Annual Digest, 1943–45, 150). It makes no difference how foreign military personnel enter the territorial State, whether by air, land, or sea: under custom, all enjoy immunity from local criminal jurisdiction for acts carried out on duty. While there is some disagreement as to whether this immunity is limited to acts undertaken in the performance of official duty, or applies more broadly to all acts undertaken whilst a person was on official duty, this controversy is of no consequence in the present case. Given that the two marines opened fire in the performance of their official duties, they are exempt from Indian criminal process under customary international law.
The award in the Enrica Lexie case deserves careful study, both for what it says and for what it omits. The case illustrates the complexities that arise when two or more State are entitled to exercise their criminal jurisdiction concurrently in relation to State officials acting outside their national territory. The award itself provides a detailed restatement of the legal principles that govern the exercise of jurisdiction in such circumstances. Specifically, it affirms the principle that State officials enjoy functional immunity from local criminal jurisdiction for their official acts. In doing so, the Arbitral Tribunal went some way to correct the High Court of Kerala, which in its 2013 decision rejecting the immunity of the two marines declared that “[w]here the members of military forces of a country commit wrongful acts, while engaging in non-military functions, it is quite appropriate for the aggrieved state to claim jurisdiction and subject them to the local law” (para 48). This statement does not reflect international law. As the Arbitral Tribunal confirmed, members of military forces enjoy immunity from foreign criminal jurisdiction for acts performed in their official capacity, whether their duties involve military or non-military functions.
The Arbitral Tribunal’s award also serves as authority for the proposition that State officials benefit from functional immunity regardless of whether they engage in acts of a sovereign or commercial character. Italy made precisely this point when it argued that the distinction between sovereign acts and commercial transactions was irrelevant in the present case (para 820): what matters is that the marines acted in the performance of their official duties. While the Arbitral Tribunal did not address this submission in express terms, its analysis is firmly focused on determining whether or not the marines acted in the exercise of State functions, and not whether those functions were sovereign or commercial in nature. But it is here that the Arbitral Tribunal’s analysis may be found wanting. Military personnel are not ordinary State officials, but agents of a particular kind who benefit from specialized immunities. Unfortunately, the award remains silent on this dimension of the applicable law.
Unlike other naval cases such as The Caroline and The S.S. Lotus, the Enrica Lexie has not lent its name to any famous formula or doctrine, but this should not blind us to the fact that it makes a significant, even if incomplete, contribution to the law of functional immunity.