india-loses-jurisdiction-over-italian-marines-case

Context: As a good international citizen, the country has accepted the tribunal’s award and now it must ensure that Italy fully honours it.

Background:

  • An international arbitration court has ruled that the Italian Marines accused of killing two fishermen off the coast of Kerala in 2012 enjoy immunity and are outside the jurisdiction of Indian courts as they were acting on behalf of a state. 
  • The marines were part of a security contingent on the Enrica Lexie, an Italian commercial oil tanker while Pink and Valentine were on the Indian fishing boat, St. Antony. 
  • In 2012, Indian police had detained two Italian marines posted on oil tanker Enrica Lexie who had shot at two Indian fishermen on an Indian vessel, apparently mistaking them for pirates operating near the Kerala Coast.
  • The fishing vessel was within the country’s Contiguous Zone (12NM -24NM) and it was quite clear that the offence warranted arrest and prosecution under domestic law.
  • The tribunal’s ruling that the Marines have immunity comes seven years after the Supreme Court ordered the Centre to “proceed with the investigation and trial of the Marines” in a decision in 2013. 
  • The apex court had ordered the Centre to set up a Special Court to try the case. Prior to the Supreme Court verdict, the Kerala High Court too had found that the Marines enjoyed no immunity.
  • In 2014, the Marines had successfully gained a stay order on the investigation by the National Investigation Agency.
  • A year later, the Supreme Court froze its own proceedings when the case reached the International Tribunal on Law of Seas. 

Key takeaways of the judgement

  • The Permanent Court of Arbitration (PCA) in The Hague admitted that both India and Italy had concurrent jurisdiction in the matter but concluded that the marines immunity precluded India’s jurisdiction. 
    • Diplomatic immunity under Vienna Convention on Diplomatic Relations: It specifies the privileges of a diplomatic mission that enable the diplomats to perform their diplomatic functions without the fear of any legal trouble or harassment from the host country. 
  • In India’s favour, the PCA found that the Italian vessel had violated the right and freedom of navigation of the Indian fishing vessel under UNCLOS, and that the action, which caused loss of lives, property and harm, merited compensation. 
    • It asked the parties to consult each other on the compensation due to India as a result. 
    • More significantly, the PCA rejected a key argument by Italy that India, by leading the Italian vessel into its territory and arresting the marines, violated its obligation to cooperate with measures to suppress piracy under Article 100 of UNCLOS. 
      • This may mean that the arbitration court did not view the incident as one related to piracy at all. 
    • However, the tribunal endorsing that the Italian ship had violated national and international maritime laws will serve as a warning to foreign freight and passenger ships.
  • India had opposed Italy’s request for an arbitral tribunal but ITLOS ruled in Italy’s favour.

India’s response:

  • The Centre informed the Supreme Court that it has decided to “accept and abide” by an international tribunal’s ruling. India is bound by the award of the arbitral tribunal formed under the United Nations Convention on the Law of the Sea (UNCLOS).
    • The award is “final and without appeal,” as India is a party to the U.N. Convention.
  • In tune with Article 51(c) and (d) of the Constitution: “The state needs to foster respect for international law and treaty obligations and encourage settlement of international disputes by arbitration. 
  • The Ministry of External Affairs statement on the award notes that the Tribunal observed that India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the marines.” 
  • Prima facie then the tribunal should have allowed the case to continue in India for the victims were Indians and the Enrica Lexie came voluntarily to India and after investigations a case was lodged against Lattore and Girone. 

Concerns: The PCA’s award, which is final and has been accepted by India, is a huge setback for the expectation that the two marines would face a criminal trial in India. 

  • Legal and diplomatic delays: The Union government should have taken over the prosecution and ensured a quick trial. Due to legal tangles and the diplomatic fallout, the marines managed to obtain orders to leave the country. 
    • Legal jurisdiction issue: The Supreme Court ruled that only the Centre, and not Kerala, can prosecute the marines after parallel legal action by center and state governments.
    • Diplomatic hurdle: The National Investigation Agency invoked the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002. This caused a diplomatic furore as it provides for the death penalty. 
    • The EU threatened to impose trade sanctions. Ultimately, it took time for these charges to be dropped. 

Bad precedence

  • Calling the verdict an invasion into the rights and dignity of fishers, Fishermen associations say this will set a bad precedent since the shooting happened on the fringes of the territorial waters.
  • India’s stand that UNCLOS is not concerned with issues relating to immunity was strong. 
  • Immunity of state officials has to be governed by specific multilateral or bilateral treaties or agreements. It should not be tangentially brought in to settle issues of jurisdiction. 
  • Deployment on commercial vessel
    • Besides, even if Italian marines are considered as state officials, they were deployed on an Italian commercial vessel. 
  • Unilateral action by Italy:
    • Italy did so unilaterally without the cover of any multilateral or bilateral arrangement. 
  • No immunity:
    • There is no convention that such persons as the marines in such cases are immune from local criminal jurisdiction; only heads of states, heads of governments and foreign ministers customarily enjoy immunity abroad.
  • Countries may now be tempted to enact specific laws to give immunity to their military and paramilitary personnel and others by declaring them state officials and thereafter place them on different kinds of commercial craft and use them for adventurous purposes. 

Way ahead

  • The government should ensure that it closely monitors the case proceedings in the Italian court against Lattore and Girone. 
  • This is also a time for the executive and judicial branches of the Indian state to introspect on how they handled the whole affair politically, diplomatically and legally. 

The takeaway for India should be the lessons, in the legal and diplomatic domains, that can be drawn from the experience.

PCA, ITLOS and UNCLOS

The Permanent Court of Arbitration (PCA ) is established pursuant to the Hague Peace Convention of 1899. 

  • It is based in The Hague, Netherlands. 
  • PCA provides a wide range of dispute resolution services to the international community. 
  • It is distinct from ITLOS, however, in that its scope is far broader than the Law of the Sea.
  • There is a close working relationship between ITLOS and the PCA in resolving maritime disputes.

The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization created by the mandate of the Third United Nations Conference on the Law of the Sea. 

  • It was established by the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on December 10, 1982. 
  • The Convention entered into force on November 16, 1994, and established an international framework for law over "all ocean space, its uses and resources". 
  • The ITLOS is one of four dispute resolution mechanisms listed at Article 287 of the UNCLOS.
  • The Convention also established the International Seabed Authority, with responsibility for the regulation of seabed mining beyond the limits of national jurisdiction, that is beyond the limits of the territorial sea, the contiguous zone and the continental shelf.

Principles of UNCLOS

  • Freedom of high seas,
  • Peaceful uses of world oceans,
  • National sovereignty over territorial waters,
  • Freedom of innocent passage of the ships through territorial waters and archipelagic zones,
  • Freedom of transit through international straits,
  • Marine environment protection,
  • Peaceful settlement of a dispute.

Salient features of UNCLOS:

  • Every state shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
  • Piracy as per UNCLOS: Any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft comes under it.
  • Freedom of high seas: High seas represent that sea area which is not a part of any sovereign state. The high seas are open to all states, whether coastal or landlocked.
  • Right of innocent passage: Passage means navigation through the territorial sea for the purpose of traversing the sea without entering internal waters or calling a port facility outside internal waters.
  • Seizure of pirate ship: On high seas, or in any other place outside the jurisdiction of any state, every state may seize a pirate ship, or a ship taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.
  • Right of hot pursuit: The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal state have a good reason to believe that the ship has violated the laws and regulations of that state.

 

Vienna Convention on Diplomatic Relations: The Vienna Convention on Diplomatic Relations of 1961 is an international treaty, accepted by 189 states till date, that defines a guideline for diplomatic relations between numerous independent countries.It is the basis for modern international relations.

Salient features:

  • It defines who is a diplomat and thus entitled to special privileges and immunities.
  • Diplomatic immunity: It specifies the privileges of a diplomatic mission that enable the diplomats to perform their diplomatic functions without the fear of any legal trouble or harassment from the host country. 
    • Diplomatic immunity is granted to only certain individuals depending on their rank and the amount of immunity they require to carry out their official duties without legal harassment from the host nation.


Source: https://www.thehindu.com/opinion/lead/india-must-not-cast-anchor-in-enrica-lexie/article31996616.ece#:~:text=India must not cast anchor in ‘Enrica Lexie’,it must ensure that Italy fully honours it

Image Source: https://sailorinsight.com/unclos/amp/