The ‘Enrica Lexie’ Incident Award and Exclusive Flag State Jurisdiction by Arron N Honniball

10/08/2020 with [2840 views] no comments

The ‘Enrica Lexie’ Incident Award and
Exclusive Flag State Jurisdiction by Arron N Honniball

Sugeesh at Malayalam Wikipedia / CC BY,


On 21 May 2020 the Arbitral Tribunal (UNCLOS, Annex VII) in respect of the ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, furnished its Award. Once Italy and India agree on the quantification of compensation due to India (Award, para. 1094(B)(6)(b)), the curtain shall fall on a long running dispute, dating back to a fatal incident in 2012. Encouragingly, both Italy and India have responded positively to the Award, and on 3 July 2020 the Indian Government initiated (2) the steps necessary to cease exercising its criminal jurisdiction over the Italian Marines and thus implement the Award (para. 1094(B)(2)). This follows the previous precedents of both states promptly complying with the Provisional Measures Order of 24 August 2015, issued by ITLOS, and the Provisional Measures Order of 29 April 2016, issued by the Arbitral Tribunal (Award, paras. 13; 31-33).

The 307-page Award (followed by a joint dissenting opinion, a dissenting opinion and a concurring and dissenting opinion) is rich in topics. The question of the Tribunal’s incidental jurisdiction over the immunity issue under Article 288(1) of UNCLOS has garnered the greatest attention to-date (Schatz 2020, Raju 2020). For one, Schatz 2020 was critical of the Tribunal’s characterisation of the dispute, rejecting immunity as neither preliminary nor incidental to the UNCLOS dispute and thus questioning whether the Tribunal had jurisdiction to decide that the Marines are entitled to immunity and that India is precluded from exercising jurisdiction (Award, para. 1094(B)(2)-(3)). This post takes a different focus, namely the Tribunal’s treatment of Article 92(1) of UNCLOS and the scope of ‘exclusive flag state jurisdiction’. Article 92(1) of UNCLOS provides:

“Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.”

As seen below, the necessity for the Tribunal to carefully interpret and analyse Article 92(1) of UNCLOS is explicit and implicit within numerous claims and counterclaims submitted by the parties. One would therefore expect a sound and reasoned analysis of Article 92(1). This is particularly so given the Award follows last year’s highly controversial precedent of M/V Norstar Judgment of 10 April 2019 (para. 225) by suggesting that exclusive flag state jurisdiction encapsulates both enforcement jurisdiction and prescriptive jurisdiction (Collins 2019; Honniball 2019; Pineda 2019; Ringbom 2021, ‘Ships in ABNJ’ (draft on file with author)). Unfortunately, the Tribunal, like the ITLOS in its M/V Norstar Judgment, advanced its interpretation of Article 92 of UNCLOS without reasoning. What is more, its general interpretation of Article 92 is inconsistent with its own reasoning within other sections of the Award.

This post is based on the Award as submitted to the Indian Supreme Court. Out of respect for the confidentiality review of the parties and Article 23(5) of the Arbitral Tribunal’s Rules of Procedure, this post will not include a link to the Award until such time as it is published here.

Furthermore, as this post is concerned with the doctrinal contributions of the Award, this post does not delve into the facts in any great detail (Award, paras. 77-216). Nonetheless, in short, two Italian navy marines, serving as a vessel protection detachment aboard the Italian flagged ‘Enrica Lexie’ vessel, fired upon the India registered ‘St. Antony’ vessel within India’s Exclusive Economic Zone (EEZ), killing two fishermen (the fishermen’s kin were previously compensated). Both India and Italy claimed prescriptive jurisdiction over the incident. India exercised enforcement jurisdiction over the Enrica Lexie vessel and the Italian marines when they were within India’s territorial sea (Award, para. 356). Italy requested exclusive enforcement jurisdiction and expressed a commitment to resume its criminal investigation into the incident (Submission 3(c); Award, para. 889). The dispute upon Article 92(1) of UNCLOS essentially revolved around whether India’s acts in connection with the Enrica Lexie vessel when it was within India’s EEZ (prior to entering India’s territorial sea) amounted to an act of unauthorised enforcement jurisdiction.

The Tribunal on Exclusive Flag State Jurisdiction

The application of Article 92 and the concept of exclusive flag state jurisdiction is first raised by the Tribunal in respect of Italy’s Submission 1(a), but only in so far as establishing that both Italy’s and India’s flag state jurisdiction would extend to the incident (discussed below). Little of note is added on defining ‘exclusivity’ or ‘jurisdiction’ within Article 92 of UNCLOS. The Tribunal’s main analysis of Article 92 is found in response to Italy’s Submission 1(c) that “[b]y interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy’s exclusive jurisdiction over the Enrica Lexie, in breach of UNCLOS Article 92” (Award, paras. 68, 521).

It is worth noting that Italy’s submission on Article 92(1) of UNCLOS adopted the prevailing restrictive interpretation and application of ‘exclusive flag state jurisdiction’ which predated the M/V Norstar Judgment, i.e. referring to exclusive at-sea enforcement jurisdiction (Owners, Officers and Men of the Wanderer (Great Britain) v. United States, Award, pp. 71-75; The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits, paras. 233-333, 401(C)). Italy argued “India breached Article 92 of the Convention by directing, interdicting, and escorting the ‘Enrica Lexie’ while it was in India’s exclusive economic zone” (Award, para. 510). These are all at-sea enforcement measures (see Award, paras. 896 and 907 for Italy’s acceptance of cases of ex-post adjudicative jurisdiction which do not affect its exclusive flag state jurisdiction “while navigating” in the EEZ). Likewise, India responded that it did not take any enforcement measures until the Enrica Lexie was boarded in its territorial sea (Award, paras. 514-517).

Nonetheless, in response, the Tribunal’s analysis did not limit Article 92(1) of UNCOS to exclusive enforcement jurisdiction. Instead the Tribunal adopted an expansive interpretation of exclusive flag state jurisdiction so as to also include exclusive prescriptive jurisdiction:

“(a) The concept of exclusive jurisdiction of the flag State

    1. The principle of exclusive flag State jurisdiction has been recognised as an ‘essential adjunct[] to the principle of the freedom of the seas’ or a ‘corollary of the open and free status of the high seas’.
    2. The concept of ‘jurisdiction’, derived from the Latin juris dicere (literally: ‘to speak the law’), while broadly used in international law, remains largely undefined in the case law of international courts and tribunals.
    3. One may distinguish between prescriptive jurisdiction, adjucative jurisdiction, and enforcement jurisdiction. Prescriptive jurisdiction is the authority of a State to make laws in relation to persons, property, or conduct; adjudicative jurisdiction is the authority of a State to apply law to persons or things; and enforcement jurisdiction is the authority of a State to exercise its power to compel compliance with law. Under international law, the exercise of jurisdiction by a State entails an element of prescribing laws, rules, or regulations over conduct, or applying or enforcing such laws, rules, or regulations over persons or property.
    4. It follows from the above analysis that the principle of exclusive flag State jurisdiction under the Convention is violated when a State other than the flag State seeks to prescribe laws, rules, or regulations over a ship of the flag State, or applies or enforces such laws, rules, or regulations in respect of such a ship. The Arbitral Tribunal also recalls in this respect the observation of ITLOS in M/V ‘Norstar’ that the principle of exclusive flag State jurisdiction ‘prohibits not only the exercise of enforcement jurisdiction on the high seas by States other than the flag State but also the extension of their prescriptive jurisdiction to lawful activities conducted by foreign ships on the high seas’”.

The Tribunal therefore provides little, if any, clarification or reasoning on its interpretation of Article 92(1) of UNCLOS. This is rather surprising given one might have wished to respond to the numerous dissenting opinions in the previous ITLOS Provisional Measures Order of 24 August 2015, which suggested UNCLOS (including Article 92) is silent on such extraterritorial prescriptive jurisdiction at-sea (Judge Lucky, paras. 36, 60; Judge Bouguetaia para. 15 and Judge Ndiaye, para. 23). Such reasoning would also be expected because the Tribunal has purposively sought, through obiter dictum, to contribute to a broadening interpretation of Article 92(1) of UNCLOS. This is because any question of exclusive flag state prescriptive jurisdiction was not vital to resolving the parties’ dispute on Article 92. As per Italy’s submission, on the facts the Tribunal’s analysis of Submission 1(c) only assessed whether any of the alleged conduct of India included an element of enforcement jurisdiction which could therefore violate Article 92(1) (Award, paras. 528-536). The Tribunal’s application of Article 92 was thus much more restricted than its doctrinal restatement of Article 92.

Indeed, the “analysis” (Award, paras. 524-526) does not examine Article 92(1) of UNCLOS at all. It is difficult to conclude how “it follows” (Award, para. 527) from a general introduction to the concept of ‘jurisdiction’ in international law that ‘jurisdiction’ in Article 92(1) of UNCLOS must refer to prescriptive and enforcement jurisdiction. If anything, this reasoning demonstrates that an appropriate analysis should have been undertaken. Jurisdiction is often not explicitly defined and, depending on the circumstances and context of each use, can refer to prescription jurisdiction, enforcement jurisdiction, or both. Tellingly, one of the general authorities on jurisdiction cited by the Award, Ryngaert 2015, was also cited in a 7-strong M/V Norstar Judgment, Joint Dissenting Opinion, which reached an opposing, more restrictive, interpretation of Article 92(1) of UNCLOS as referring solely to enforcement jurisdiction.

In support of its interpretation of Article 92(1) of UNCLOS, the Tribunal only refers to the M/V Norstar Judgment. However, as argued previously, in that Judgment “the majority provided no reasoning to reinforce this expansive interpretation of Article 92 of UNCLOS which has no support in the jurisprudence, state practice, or subsequent treaty law” (Honniball 2019). At least one of the authorities cited by the Award to support its interpretation of Article 92(1) has referred to the M/V Norstar Judgment as appearing “contrary to actual state practice” (Ryngaert 2020, p. 152). Also, neither of the Commentaries to UNCLOS adopt such an expansive interpretation of Article 92(1) of UNCLOS and instead treat exclusive jurisdiction as one of enforcement (Guilfoyle in Proelss Commentary, paras. 1, 6-11; Virginia Commentary, paras. 92(b)-92(c) (predominantly discussing enforcement exceptions, albeit with some uncertainty by raising UNCLOS, art. 218)). One is therefore left to conclude that either the Tribunal’s interpretation of Article 92 is now being advanced as self-evident, for which significant debates on interpreting Article 92 through the VCLT (arts. 31-33) rules have been mistaken (authorities in fns. 94-98; Petrig 2016, pp. 5-7; Dobson and Ryngaert 2017 p. 314 and Vezzani 2020, pp. 153-157), or that these paragraphs of the Award were poorly drafted. Other elements of the Award appear to point to the latter.

Furthermore, while the Tribunal refers to the M/V Norstar Judgment for its interpretation of Article 92(1) of UNCLOS, tellingly the parties, at least according to the summary of their arguments represented in the Award, did not. Italy’s objection to India’s exercise of extraterritorial prescriptive jurisdiction (Award, para. 68, Italy’s Submission 1.a) only refers to the M/V Norstar Judgment to support its submission that, in lacking a recognised legal basis, India’s legislation would violate Article 87 of UNCLOS (Award, paras. 309-310). Article 92(1) was not envisaged as relevant to this part of the dispute.

India highlighted the highly controversial nature of the M/V Norstar Judgment (Award, para. 336), followed by a series of questionable attempts to distinguish the M/V Norstar case on the basis (a) regulating the activities of a vessel and regulating the activity of a person aboard are fundamentally different and (b) regulated acts can be, by definition, unlawful or not unlawful per se (Award, paras. 336-337, 518-519; Italian response, paras. 311-312). More generally, India advanced numerous customary law bases of prescriptive jurisdiction that are not found in UNCLOS, nor any other applicable treaty, such as passive personality-based jurisdiction. India also argued that “while a coastal State does not have sovereignty over its exclusive economic zone, ‘this does not mean that it has no rights beyond the sovereign rights and the jurisdiction expressly recognized in the Convention’” (Award, para. 332). Both references would seemingly be in direct contrast to the Tribunals’ interpretations of Article 92(1) in the M/V Norstar Judgment and Enrica Lexie Award as including exclusive flag state prescriptive jurisdiction.

The Tribunal on Prescriptive Jurisdiction

In response to Italy’s submission that India’s 1976 Maritime Zones Act and 1981 Notification were incompatible with UNCLOS, India argued that its jurisdiction over the incident was not based on this legislation, but rather the territoriality principle or passive personality principle (Award, paras. 352-359). The Tribunal accepts that a state may exercise prescriptive jurisdiction over its flagged vessels as if offences aboard were committed in its territory (“extended territoriality principle”, Award, paras. 364-365). The Tribunal also accepts that the objective and subjective territoriality principles apply to vessels so that a flag state’s prescriptive jurisdiction may extend beyond the vessel to related acts initiated or concluded extraterritorially. “[W]here 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” (Award, paras. 366 and 840). Such customary law prescriptive jurisdiction is not what Article 92(1) of UNCLOS envisages as “exceptional cases expressly provided for in international treaties or in [UNCLOS]”.

Engagement with objective and subjective territoriality is a welcome addition. One critique of the M/V Norstar Judgment was its failure to do so despite the Italian submissions in that case (M/V Norstar Judgment, Joint Dissenting Opinion (paras. 22-32). However, this welcome addition is then immediately followed in the Award by another inconsistent statement on Article 92(1) of UNCLOS:

“368. Furthermore, in the Arbitral Tribunal’s view, India’s exercise of jurisdiction over the ‘Enrica Lexie’ incident is not only compatible with the Convention, but justified by Article 92, paragraph 1, of the Convention, which provides for the principle of exclusive flag State jurisdiction. Pursuant to this principle, India, as the flag State, has exclusive jurisdiction over the ‘St. Antony’ and may assert its jurisdiction in respect of the offence that was allegedly completed on board its vessel in the exclusive economic zone, in the same way as Italy, as the flag State, has exclusive jurisdiction over the ‘Enrica Lexie’ and may assert its jurisdiction in respect of the offence that was allegedly commenced on board its vessel.”

Had the Tribunal limited the concept of exclusive flag state jurisdiction to enforcement jurisdiction at-sea, this statement would make more sense. As there is no express exception to exclusive flag state jurisdiction for the crime of murder, neither state could take non-consensual enforcement measures in the EEZ or high seas against any foreign vessels involved. Both states could however exercise prescriptive jurisdiction over the offence and await the foreign vessel’s entry into its territorial enforcement jurisdiction, such as entering port. Enforcement could then occur. Instead, the Tribunal reasons that exclusive flag state jurisdiction is both prescriptive and enforcement, resulting in a series of paragraphs that suggest prescriptive jurisdiction over a vessel can be simultaneously ‘concurrent’ and ‘exclusive’.

The Tribunal felt it was unnecessary to address the validity of the passive personality principle because territoriality was already established (Award, para. 369). Given today’s heightened awareness of gross human rights abuses at-sea, including modern day slavery and the murder of fishers or observers, it is unfortunate that the Tribunal did not positively reaffirm that this customary law basis of jurisdiction continues to apply at-sea, regardless of which maritime zone the offence occurs. India apparently raised significant state practice (Award, para. 345). In many cases state practice will likely be found in the general criminal code, which will not include any explicit exception for offences committed on foreign flagged vessels in the high seas or EEZ (e.g., South Korea, Lee and Park 2012, p. 634).

The Tribunal on Articles 87 and 90

The Award reaffirms the intimate link between exclusive flag state jurisdiction and the freedoms of the high seas. It also reaffirms that extraterritorial prescriptive jurisdiction over foreign flagged vessels, without a valid legal basis, would violate Article 87 of UNCLOS (Award, paras. 468-473) and related provisions like Article 90 of UNCLOS (Award, paras. 1037-1038).

In doing so, the Award (para. 467) reiterates that Article 92(1) of UNCLOS codifies the longstanding customary principle:

“[A]part from certain special cases which are defined by international law – vessels on the high seas are subject to no authority except that of the State whose flag they fly. In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them” (S.S. Lotus Judgment, p. 25).

However, the Tribunal once again did not highlight that the S.S. Lotus Judgment was likely discussing at-sea enforcement jurisdiction. On ex-post adjudicative jurisdiction, which presupposes valid extraterritorial prescriptive jurisdiction, the PCIJ stated that “it by no means follows that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas” (S.S. Lotus Judgment, p. 25). For readers of the M/V Norstar Judgment, this oversight is a moment of déjà vu (Honniball 2019; M/V Norstar Judgment, Joint Dissenting Opinion paras. 19, 36).

The Tribunal on Article 97

It was previously argued that the necessity for, and existence of, Article 97 of UNCLOS was testament to the fact that exclusive flag state jurisdiction under Article 92 of UNCLOS concerns enforcement and not prescriptive jurisdiction (Conforti 2012; Honniball 2016, pp. 525-526; discussing the Enrica Lexie incident, Guilfoyle 2012; Hollis 2012). The Award’s reasoning on Article 97 of UNCLOS would support this proposition, notwithstanding the Award’s opposite conceptualisation of exclusive flag state jurisdiction:

“645. The PCIJ’s [S.S. Lotus] judgment, which decided that both France and Turkey were entitled to exercise penal jurisdiction over the French officer, was reversed with ‘the object of protecting ships and their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas, since such proceedings may constitute an intolerable interference with international navigation’. Article 35 of the ILC Draft Articles Concerning the Law of the Sea accordingly reserved exclusive penal jurisdiction to either the flag State of the ship on which the accused person serves, or the State of which the accused person is a national, with the latter addition made ‘in order to enable States to take penal or disciplinary measures against their nationals serving on board foreign vessels who are accused of causing collisions’.

    1. It is thus apparent that an exception to the otherwise prevailing rules on allocating jurisdiction was created specifically for a situation where the master or any other person in the service of a ship are at risk of facing penal proceedings before foreign courts in respect of navigational conduct on the high seas; such risk would typically arise only where some form of damage or harm has occurred as a result of navigation.”

The Tribunal did not address the relationship between its conclusions on Article 97 and Article 92, but it is argued here that its reasoning on the former would not support its reasoning on the latter. Paragraph 646 of the Award interprets Article 97 in the context of the general international law on allocating prescriptive jurisdiction and not exclusive flag state prescriptive jurisdiction. This is an implicit application of the restrictive interpretation of Article 92, despite the Tribunal’s previous explicit statement supporting an expansive interpretation. As argued by India (Award, para. 633), Article 97 of UNCLOS leaves intact the position of the S.S. Lotus Judgment in respect of criminal prescriptive jurisdiction at-sea beyond those cases of collisions or other incidents of navigation.

The Tribunal on Exceptions to Immunity

When addressing Italy’s submission on the immunity of the marines this confusing position on both concurrent and exclusive flag state jurisdiction is repeated:

“839. Pursuant to Article 58, paragraph 2, and Article 92, each Party has exclusive jurisdiction over their respective ship involved in the incident, namely, Italy over the ‘Enrica Lexie’ and India over the ‘St. Antony’. The Parties therefore have concurrent jurisdiction over the incident.”

What is more, the Tribunal’s discussion of immunity would put to rest any suggestion that by exercising objective or subjective territorial jurisdiction there is no extraterritorial effect or scope of laws applicable to a foreign flagged vessel. India had argued that a territorial tort exception to immunity would preclude the Italian marines from enjoying immunity ratione materiae. However, in rejecting its application to the incident the Tribunal recognises that, in this case, the Indian Penal Code is prescribing standards of conduct concerning foreign nationals aboard foreign vessels in the EEZ:

“In the present case, it is undisputed that the Marines were on board the ‘Enrica Lexie’, and not on Indian territory, when they committed the acts at issue […] to the extent that the “territorial tort” exception is a customary rule of international law, it would in any event not apply in this case because the Marines were not on Indian territory when they committed the acts at issue” (Award, paras. 871-873).

Achieving Internal Consistency: Rounding Square Pegs?

But for the Tribunal’s conceptualisation of exclusive flag state jurisdiction (Award, paras. 524-527) the various issues in the Award discussed above could relatively easily confirm an interpretation of Article 92(1) of UNCLOS as referring to exclusive flag state enforcement jurisdiction. Is there then a manner in which the Tribunal’s expansive interpretation of exclusive flag state jurisdiction can be made consistent with its general position on concurrent jurisdiction over foreign vessels?

One avenue this author envisages is that the Tribunal might be using a differing definition of ‘exclusive’. Essentially, exclusive jurisdiction would be reduced to meaning a flag state has exclusive prescriptive jurisdiction unless another state has jurisdiction – be that prescriptive jurisdiction established in treaty law or customary international law. However, as Article 92(1) of UNCLOS is limited in application to extraterritorial maritime zones (high seas and EEZs (Article 58(2)), states already require a recognised jurisdictional nexus in general international law to prescribe laws concerning foreign flagged vessels, or persons aboard. This would mean, on the point of exclusive flag state jurisdiction, Article 92(1) of UNCLOS simply repeats general international law without any unique contribution beyond enabling compulsory dispute settlement via Part XV of UNCLOS.

This would be a dangerous proposition for the law of the sea. It is universally recognised that Article 92(1) of UNCLOS does at least protect vessels from foreign enforcement jurisdiction on the high seas or in the EEZ unless “exceptional cases expressly provided for” apply. The Tribunal reasons that, because Article 92(1) does not define which ‘jurisdiction’ it is referring to, it must include both exclusive prescriptive and enforcement jurisdiction. But the logical end of that reasoning is that the same expansive interpretation applies to the scope of exceptions to exclusive ‘jurisdiction’. Thus, the Tribunal accepts India’s objective territoriality as a case where prescriptive jurisdiction can be exercised over acts committed aboard an Italian vessel in the EEZ. There is an exception to Italy’s exclusivity. But, following the Tribunal’s expansive interpretation of Article 92, on what basis would this exception not also provide an exception for India to exercise extraterritorial enforcement jurisdiction? There is nothing in the wording of Article 92(1) of UNCLOS for which a differing test could be established for questions of exclusive prescriptive jurisdiction and questions of exclusive enforcement jurisdiction. If Article 92(1) of UNCLOS is not reserved to only refer to exclusive enforcement jurisdiction, the ability to distinguish cases of permissible prescription but impermissible enforcement disappears. Many states would balk at such a dilution of their rights of exclusive enforcement jurisdiction.


To conclude, the Tribunal’s statement on conceptualising exclusive flag state jurisdiction takes the broadest possible interpretation of Article 92(1) to include exclusive flag state prescriptive and enforcement jurisdiction, with little reasoning or support. And yet, when applying Article 92(1) to Italy’s submission, or when Article 92(1) is indirectly raised, the Tribunal’s reasoning limits exclusive flag state jurisdiction to enforcement jurisdiction, as per the restrictive approach. The latter may be a saving grace for the findings of the Enrica Lexie Award, but to repeat the same mistakes of the M/V Norstar Judgment in its doctrinal restatement of Article 92(1) of UNCLOS is an untenable trend in current jurisprudence. Certainly, the trend within other international fora is not to suggest exclusive flag state prescriptive jurisdiction on the high seas but rather promote the exercise of all available jurisdiction (IPOA-IUU, para. 9.3).

Neither the facts nor the position of the parties required the Tribunal to, without reasoning, go out on a limb and support the M/V Norstar Judgment’s interpretation of Article 92(1). Given the Tribunal’s contradictory support of concurrent prescriptive jurisdiction in other sections of the Award, either paragraphs 524-527 should have been deleted, or they should have been significantly expanded to include reasoning, state practice, and application of the rules of treaty interpretation to justify its conclusion. That opportunity was lost. Equally, when discussing flag state jurisidiction it would be best to refrain from simultaneously referring to concurrent and exclusive jurisdiction. The Concurring and Dissenting Opinion of Judge Rao (para. 19) provides a good example, simply referring to concurrent flag state jurisdiction under Article 92 of UNCLOS.

For now, the ball is back in the court of ITLOS where the Tribunal, or a member of the Tribunal, could seriously consider drafting a detailed interpretation and application of Article 92(1) in the forthcoming M/T “San Padre Pio” (No. 2) Case (a plausible claim, Provisional Measures Order of 6 July 2019, para. 108; transfer of case to ITLOS, Special Agreement). That case, in this author’s opinion, rightly focuses on non-flag state enforcement acts and whether these violated the principle of exclusive flag state jurisdiction (Switzerland’s Statement of Claim, paras. 13, 28(a)(ii); Nigeria’s Response, paras. 3.9, 3.21-3.22; PM’s Order, Dissenting Opinion of Judge Gao, paras. 27-35).

Finally, the lack of reasoning and internal inconsistencies in recent jurisprudence on Article 92(1) more than support ITLOS undertaking a detour in its M/T “San Padre Pio” (No. 2) Judgment to resolve these legal uncertainties. Legal uncertainties are detrimental to state parties and efforts to protect the maritime community and marine environment. Urbina’s damning expose in The Outlaw Oceans highlights the often-exacerbating lack of political will for international cooperation and enforcement concerning crimes committed far from shore. Likewise, in addressing entities involved in emerging maritime security threats, such as the use of fraudulent or false flags (Trainer and Izewicz 2020), state responses should not be unnecessarily complicated by expansive interpretations of Article 92. If the M/V Norstar Judgment and Enrica Lexie Award begin to have a chilling effect on the extension of perfectly valid customary law prescriptive jurisdiction to activities involving foreign flagged vessels, then we might need to write a follow-up volume entitled The Deregulated Oceans.