By Snehil Sharma
There have been various instances where the maritime rules & regulations of any specific country have been violated by the vessel of foreign country. One similar incident took place within the territorial waters of India. This incident was of great importance as it involved the applicability of numerous national codes such as IPC, CRPC and International treaties such as UNCLOS etc.
Incident of the Case
Italian ship named “Enrica Lexie” was travelling from Singapore to Egypt & Indian vessel “St. Antony” was on its way back to destination after fishing expedition.
On 15th Feb, 2012 two Italian marines in the Italian ship fired upon the Indian vessel “St. Antony” near Kerala coast mistaking it to be pirates and killed two Indian fishermen as a consequence of such firing.
The incident took place 20.5 Nautical Miles from the Indian coast which was a part of Exclusive Economic Zone of India.
The Indian Coast Guards reacted to the incident and got hold of Italian ship and compelled Enrica Lexie to proceed towards Kochi.
Both the Italian marines i.e. Salvatore Girone & Massimiliano Latorre were arrested by the Indian authorities and criminal charges of Murder & Mischief under S. 300 & 425 were lodged against the two mariners of Italy[1].
Adjudication of Case in India
After the arrest of its two marines, Italy stepped into the matter for protecting them and challenged the arrest made by the Indian authorities before the High court of Kerala. Italy opposed the arrest claiming that the incident took place in International waters rather than territorial waters of India and that India did not hold jurisdiction to try this matter in the Indian court.
Italy stated that as per Art. 97 of UTCLOS (United Nations Convention on the Law of the Sea), only the flag state of the ship has the authority to initiate penal proceedings if any incident of navigation takes place by the ship on high seas. As per Article 217, the flag state of Enrica Lexie was the state on which it was registered i.e. Italy.
However, India claimed its jurisdiction upon the matter as per its domestic legislation in which the courts are entitled to try any individual (foreigner) if any crime has been committed on board with any registered Indian vessel. The same has been provided under Sec. 3 & 4 of IPC coupled with Section 188 of CRPC[2].
Italy denied such claims of India regarding jurisdiction and stated that every registered vessel is subjected to exclusive jurisdiction of the state in which it is registered as per Art. 92 if such vessel is in high seas. Italy was opposing any penal or disciplinary proceeding against its marines which was being initiated before Indian administrative and judicial authorities[3].
Arguments from both the sides seemed equally strong due to their own clarifications regarding their claims in the jurisdiction of the case. If we take the general principal regarding criminal procedure into consideration, the trial is supposed to happen in the place where offence has taken place which eventually favors India.
Additionally, if the trial is conducted in any foreign country, it will prevent the victims of such offence from exercising their right to participate which is considered as a crucial part of a fair trial. If the convenience of investigating the matter was concerned, it was more convenient in India.
The Supreme Court of India held in this case that, 200 miles of the Exclusive Economic Zone is India’s jurisdiction as per notification issued by Indian Govt.
Which was issued as per the Convention on the Law of the Sea, and the case was held to be triable within India. The SC also added that the jurisdiction shall be exercised by Indian government rather than Govt. of Kerala[4].
Hon’ble SC also ordered the establishment of a Specially designed court for determining the applicability of Indian jurisdiction. The NIA (National Investigation Agency) of India lodged the charges of attempt to murder, murder, common intent & mischief against the two Italian marines.
Adjudication of Case by International Tribunal
When Italy observed that nothing was going as per their contention, it took the matter to the International forum seeking favorable decision. The ITLOS (International Tribunal for the Law of Sea) was approached by Italy in August 2015 with the same contention that India doesn’t have any jurisdiction regarding this matter[5].
However, India rejected such contention and opposed the involvement of International Tribunal for hearing any case between two individual nations. India’s objection concerning its power to hear the case was out rightly rejected by the ITLOS.
ITLOS passed a judgment in 2015 directing both the countries to suspend all sort of domestic prosecution concerning the Enrica Lexie Case. Both the countries were ordered not to take any sort of step which might end up jeopardizing the decision provided by the arbitral tribunal.
This matter was having a serious consequence as it resulted in long freeze in the bilateral relation between Italy & India[6].
The International judgment was a step to create a balance between the contention of the countries which could be under stood as follows:
- Indian Context
The tribunal considered the fact that India’s freedom of navigation provided under Article 87(1)(a) and 90 of the UNCLOS was breached by Italian marine officers.
The tribunal also prescribed appropriate compensation for physical harm, material damage of property, loss of life and moral harm which was caused due to two Italian officers to the Indian vessel.
- Italian Context
India raised its objection against PCA (Permanent Court of Arbitration) UNCLOS tribunal regarding its jurisdiction for adjudicating the case which was provided to it by Italy.
Although, such objection was rejected by the bench of five members (4-1) and jurisdiction was considered valid. Italy’s contention regarding the officials that they were a part of armed force of Italy on duty and cannot be tried in India was considered valid and both the officials were granted immunity.
The matter was finally heard by the PCA (Permanent Court of Arbitration), which is an intergovernmental organization established to aid the international community concerning dispute resolution such as arbitration and other sort of dispute resolution between the nations in year 2019.
Judgement of Permanent Court of Arbitration
The Permanent Court of Arbitration while deciding the matter between India and Italy provided the decision on 2nd July 2020. The highlights of the same are as follows:
- It held that the freedom of navigation ensured under Article 87(1)(a) and 90 was breached by Italian marines and added that both India & Italy had a “concurrent jurisdiction regarding the matter which took place.
- It validated the diplomatic immunity provided to the Italian state officials as per the UNCLOS and rejected their trial in India with the ruling of 3-2.
- The PCA took note and considered Italy’s commitment which was expressed for resuming the criminal investigation against the officials and held that India should cease its jurisdiction into the matter which was being exercised.
- It entitled India for appropriate compensation and directed Italy to consult with India regarding the same for completing the payment of compensation which was due.
- The claim by Italy seeking compensation for the Italian officials was rejected.
The Italian government agreed to carry out the directions provided by the decision in a spirit of cooperation with Indian government and will be conducting appropriate criminal investigation into this matter[7].
Conclusion
The award passed by Permanent Court of Arbitration (PCA) is final and India has accepted the award. This is a grave setback for the Indian expectation regarding the trial of the two marines within India.
The decision which has been passed is indeed a lesson for India in legal as well as diplomatic domain. If the relevant entities and regulatory framework are designed accordingly, it will eventually help India in tackling such challenges in future.
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Anubhav Pandey, 2020. Enrica Lexie Case – Italy V. India – Marine Issue Judgement Summary. [online] iPleaders. Available at: <https://blog.ipleaders.in/enrica-lexie/>. ↑
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Id. ↑
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Drishti IAS. 2020. Italian Marines Case. [online] Available at: <https://www.drishtiias.com/daily-updates/daily-news-analysis/italian-marines-case>. ↑
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Supra Note 1 ↑
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Suhasini Haider, 2020. Italian Marines Case | India Loses Jurisdiction. [online] The Hindu. Available at: <https://www.thehindu.com/news/national/italian-marines-case-india-loses-jurisdiction/article31973247.ece>. ↑
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Supra Note 1. ↑
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Pca-cpa.org. 2020. The ‘Enrica Lexie’ Incident (Italy V. India). [online] Available at: <https://pca-cpa.org/en/cases/117/#:~:text=According%20to%20Italy%2C%20the%20Parties,incident%20and%20over%20two%20Italian>. ↑