Law of the Sea II: High Seas, Piracy and Enrica Lexie

Beyond the zones of national jurisdiction lie the high seas, open to all states and subject to no state's sovereignty. Order there depends on the jurisdiction of the flag state over its own ships, with limited exceptions, of which piracy is the oldest. This note covers the freedoms of the high seas, nationality of ships, hot pursuit and the right of visit, piracy and India's 2022 Act, and the Enrica Lexie dispute.

1. The High Seas

• Definition, Article 86. All parts of the sea not included in the EEZ, territorial sea, internal waters or archipelagic waters of a state.
• No sovereignty, Article 89. No state may validly claim to subject any part of the high seas to its sovereignty; the high seas are reserved for peaceful purposes (Article 88)
• Freedoms, Article 87. Exercised by all states with due regard for the interests of other states.

Figure 1: Freedoms of the high seas

2. Nationality of Ships and Flag State Jurisdiction

• Nationality, Article 91. Ships have the nationality of the state whose flag they are entitled to fly, and there must be a genuine link between the state and the ship.
• M/V Saiga (No. 2) (Saint Vincent and the Grenadines v Guinea), ITLOS, 1999. The genuine link requirement aims to secure effective implementation of the flag state's duties; it does not entitle other states to refuse to recognise the flag.
• Exclusive jurisdiction, Article 92. On the high seas, ships are subject to the exclusive jurisdiction of the flag state; a ship sailing under two flags may be treated as without nationality.
• Flag state duties, Article 94. Effective jurisdiction and control in administrative, technical and social matters, including safety and labour conditions; flags of convenience weaken this.

3. Exceptions: Visit, Hot Pursuit and Others

Figure 2: Limits on exclusive flag state jurisdiction

• Hot pursuit, Article 111. Pursuit of a foreign ship that has violated the coastal state's laws may begin while it is in the coastal state's internal waters, territorial sea or contiguous zone, or, for relevant laws, its EEZ or continental shelf; it must follow a visual or auditory signal to stop, be continuous and uninterrupted, be conducted by warships, military aircraft or authorised government ships, and end when the pursued ship enters the territorial sea of its own or a third state.
• I'm Alone (Canada v USA), 1935. The deliberate sinking of a Canadian liquor smuggling vessel by a US coastguard ship was unlawful as excessive force, whatever the rights of pursuit.
• Saiga (No. 2), 1999. Guinea's pursuit was unlawful because it was interrupted, no proper signal was given, and excessive force was used.
• Collisions, Article 97. Penal proceedings arising from a collision may be brought only before the authorities of the flag state or of the state of which the accused is a national, departing from Lotus (1927)

4. Piracy

Figure 3: Elements of piracy under Article 101

• Article 101. Piracy consists of illegal acts of violence or detention, or acts of depredation, committed for private ends by the crew or passengers of a private ship or aircraft and directed on the high seas against another ship or aircraft or persons or property on board, or against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; it includes voluntary participation in a pirate ship and inciting or facilitating such acts.
• Universal jurisdiction, Article 105. Every state may seize a pirate ship or aircraft on the high seas, arrest the persons and seize the property on board, and its courts may decide the penalties.
• Seizure only by warships, Article 107. Or by military aircraft or authorised government ships and aircraft.
• Duty to cooperate, Article 100. All states must cooperate to the fullest possible extent in repressing piracy.
• Armed robbery at sea. Similar acts within a state's territorial sea are not piracy under international law and fall under the coastal state's law.
• SUA Convention, 1988. After the hijacking of the Achille Lauro (1985), the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation covered attacks regardless of motive and without the two ship requirement.
• Somalia. From resolution 1816 (2008), the Security Council authorised states cooperating with Somalia to enter its territorial waters to repress piracy; the Indian Navy has conducted anti-piracy operations in the Gulf of Aden since 2008.

5. India's Maritime Anti-Piracy Act, 2022

• Purpose. Gives effect to UNCLOS on piracy; earlier, India relied on the Penal Code and admiralty jurisdiction, which did not cover acts by foreigners on the high seas.
• Scope. Applies to all parts of the sea adjacent to and beyond the limits of India's EEZ.
• Offence. Piracy is defined on the lines of Article 101 and is punishable with imprisonment for life, or with death where the act causes death; attempts, abetment and participation are punishable with up to fourteen years.
• Designated courts. Sessions Courts notified by the Central Government after consulting the Chief Justice of the High Court; offences are extraditable.

6. The Enrica Lexie Case

Figure 4: Course of the dispute

• Facts. On 15 February 2012, Italian marines guarding the Italian oil tanker Enrica Lexie fired on the Indian fishing boat St Antony about 20.5 nautical miles off the Kerala coast, killing two fishermen.
• Republic of Italy v Union of India (2013). The Supreme Court held that the incident lay beyond Kerala's territorial waters, so the State had no jurisdiction, but the Union could try the marines, and directed a special court.
• Enrica Lexie Incident (Italy v India), Annex VII award, 21 May 2020. India had concurrent jurisdiction over the incident, but the marines were entitled to functional immunity as Italian state officials, so India could not prosecute them; Italy had breached India's freedom of navigation by firing on the St Antony, and India was entitled to compensation for loss of life, physical harm, damage to the boat and moral harm.
• Closure, June 2021. After Italy deposited compensation agreed for the families and the boat owner, the Supreme Court closed the proceedings in India, leaving any prosecution to Italy.

7. Frequently Asked Questions

Is hijacking by passengers of their own ship piracy?

No. Piracy under Article 101 requires an act by one ship or aircraft against another. A seizure from within the same ship, as with the Achille Lauro, falls instead under the SUA Convention, 1988.

Why could India not prosecute the Enrica Lexie marines?

Because the Annex VII tribunal held in 2020 that, as members of the Italian Navy acting in an official capacity, they enjoyed functional immunity from India's jurisdiction, although India was entitled to compensation.

8. Related Topics

• Topic 27: Law of the Sea I. Maritime zones.
• Topic 33: State Jurisdiction. Lotus and universal jurisdiction.
• Topic 35: State Immunity. Functional immunity of officials.