Legal Articles

Gone With The Wind

The Enrica Lexie Case involved two Italian marines, Salvatore Girone and Massimiliano Latorre. They were accused of shooting two Indian fishermen, Jalastine and AjeeshBinki, on the Kerala coast in 2012. India had detained the marines on the Italian tanker, Enrica Lexie for killing the fishermen on an Indian vessel, St Antony. The arrest and subsequent exercise of jurisdiction by Indian authorities had plagued relations with Italy for years. Italy had alleged that India had violated United Nations Convention on the Law of the Sea (UNCLOS) provisions by ordering the detention of the Italian tanker. This was rejected unanimously by the International Tribunal for the Law of the Sea (ITLOS). During legal proceedings, the foremost legal issue raised was on the question of Indian jurisdiction to conduct criminal trials. India argued that it had jurisdiction over the case since deceased fishermen were Indian. Therefore, the case be tried as per Indian laws.

On the other hand, Italians argued that shooting took place beyond Indian territorial waters, marines on-board were Italian and flying under an Italian flag. Thus, Italy had jurisdiction.

Furthermore, the Italians argued, the marines acted to protect an Italian oil tanker as part of an anti-piracy mission.

ITLOS, a Tribunal created as per the provisions of the UNCLOS, is aimed by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea. Italy approached ITLOS and based on its request, ITLOS referred the Case to the Permanent Court of Arbitration (PCA), which was constituted under UNCLOS in 2015. Recently, in 2020, ITLOS upheld the actions of the Italian marines, but in contrast, held that Italy was in breach of India’s Freedom of Navigation as per UNCLOS. On the question of jurisdiction, ITLOS observed that India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the marines. ITLOS rejected Italy’s claim for compensation for the detention of the marines. Conversely, the Tribunal ruled that the accused enjoy diplomatic immunity that is granted to foreign State officials, which will act as an exception to the jurisdiction of the Indian courts. As a consequence, Indian Courts cannot judge the case owing to diplomatic cover. In view of the Indian stand accepting the ruling of the ITLOS that the two Italian marines cannot be prosecuted in India, the Supreme Court disposed off pending proceedings on July 2 and the National Investigation Agency (NIA) proposes to close the case. The Italian marines allowed conditional bail had returned to Italy in 2016.

The Arbitral Tribunal has agreed on the Italian position that the Marines, being members of the Italian armed forces in the official exercise of their duties, cannot be tried by Indian courts. Acknowledging the breach of freedom of navigation, India was held entitled to payment of compensation, in connection with loss of life, physical harm, material damage to property and moral harm suffered by crew members of the Indian fishing boat St. Anthony. This has a severe snowballing effect to Indian law enforcement agencies, Coast Guard and State marine police, as under Indian law they have ample power to exercise criminal jurisdiction up till 200 nautical miles of Exclusive Economic Zone (EEZ). In Republic of Italy, the Supreme Court, in 2013 had ruled that the incident took place within the Contiguous Zone of India over which India is entitled to exercise rights of sovereignty. Suffice to say that, the PCA award unsettles the judgment of the highest Court of the land.

In a single stroke, PCA nullified all actions taken by the Indian law enforcement agencies against accused and rendered them illegal and unsustainable. This is notwithstanding the judgment of the Supreme Court, which upheld all such actions by central agencies as legal and valid. The singular effect of such a finding will be that, if a similar incident was to happen in the future in Indian coastal waters, the law enforcement agencies will find it difficult, nay impossible, to effectively intervene to protect the interests of the country and its citizens who frequent the EEZ for their living.

Jeopardizing the secured rights of India within its EEZ for foreign flag vessels, this could limit the power of Indian law enforcement agencies to ensure that foreign flag vessels plying through the Indian EEZ honour the rights and duties of other States in the EEZ. The finding now delivered by PCA restricting the scope of power in the EEZ, could prove onerous for India. At a time when high seas piracy and water terror strikes are on the rise, suspected vessels flying fictitious flags can misuse privileges.

In conclusion, the PCA award concludes that Italy has not infringed on India’s rights under the Convention. When read in the context of the facts leading to the case, it could prove costly for India in the future. The same could also undermine the efforts towards reserving high seas for peaceful purposes as enshrined in UNCLOS. At a time when armed naval and private maritime security agencies are proliferating on merchant vessels plying through Indian EEZ, the above finding does not augur well for Indian fisherfolk and also for the Indian law enforcement agencies, who have the unenviable task of securing our vast coastal waters.

Diverse views have expressed shock and indignation against the grave crime to Indian citizens. Exemplary compensation has been demanded. Fostering respect for International treaty obligations to encourage arbitration for settlement of maritime disputes, requires the award to be respected. But, the larger issue of applicability of Domestic Law prevails. Cover of immunity cannot dilute criminal liability for crimes on Indian soil. Settlement of one case, may set a bad precedent. India ought not to have taken a backseat in compromising its sovereignty.

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*Ankit Malhotra, is Law pupil at the Jindal Global Law School at O.P Jindal Global University. ankitmalhotra97@gmail.com

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Ankit Malhotra

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