Author: Hamda Akhtarul Arfeen
The discourse of this case is focalized on two Italian Marine officers, who at the time of the incident were not aboard on an Italian government ship but were sailing on a private Italian ship named Enrica Lexie as security officers. Enrica Lexie was an oil tanker en route from Singapore to Egypt in February 2012. During this course of journey when they reached near the Indian coastline close to Kochi, they were encountered by a ship named St. Anthony. This global controversy befell on 15th February 2012 while Indian nationals Ajesh Binki and Valentine who were local fishers aboard the St. Antony had been killed allegedly through gunshot wounds after a face-off by Enrica Lexie on international waters.
This incident occurred 20.5 nautical miles off the coast of Kerala, which is the 'Contiguous Zone' of India according to the United National Laws of the Sea, 1982. After the unfortunate incident, the Indian Navy obstructed the Italian Vessel at Lakswadeep archipelago and were impelled to proceed towards Kochi port. The two Italian Marine Officers that were captured were Massimiliano Latorre & Salvatore Girone. They were deboarded and detained however, no charges were framed against them. The Marine officers claimed that they mistook the fishers to be pirates as the Somalia zone was considered to be High-Risk Zone and assumed themselves to be International waters. After they were detained the tussle between the two countries began and resulted in a long-drawn battle for 8 years affecting the diplomatic relations between the two countries.
The issue began to ignite further when the Italian Government refused to send the two marine officers back to India after they went to take part in the elections of Italy. The Italian government said that they do not prescribe Death Penalty as a valid form of punishment, therefore the Indians have to withdraw the charges of Section302 IPC, only then they would send them back. After a lot of hues and cry the Italian government sent the marine officers to India but the Indian government kept them in Indian Embassy rather than jail.
The prier most question that was raised was of Article 111 of the United Nations Convention on the Law of the Sea (UNCLOS). This Article provides that hot pursuit is when a foreign ship in the contiguous zone violates law and regulations set up by the State. However, the hot pursuit principle in the contiguous zone is restricted to the prevention of violation of 'customs, fiscal, immigration or sanitary laws', the credibility of the act of Indian government was questionable.
The major issue, in this case, was of jurisdiction. As the incident occurred in international waters, India based its claim on their domestic law which is Section 3 and 4 of IPC and Section 188 CrPc. On the other side, Italy relied on provisions of the UNCLOS, 1982. First, under Article 97, which provides for the 'Penal jurisdiction in matters of the collision or any other incident of navigation' no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag state or of the State of which such person is a national. Nevertheless, it's a matter of common sense that, this case is no way related to collision or 'incidents of navigation'. Secondly, according to Article 92, ships shall be subject to the exclusive jurisdiction of the flag state while on the high seas. Besides, the well established 'Nationality Principle' of International law allows the state to exercise the jurisdiction concerning the activities of its nationals abroad, including natural persons as well as ships, which are considered to be floating territories of the state. Hence, Article 92 read with the Nationality principle strengthens the Jurisdictional claim of Italy.
On 23rd February 2012, the High Court of Kerala admitted the petition filed by the Italian Consul General, and the two accused Marines to put a stay on all further proceedings in the case against the two marines. The petition claimed that the Kerala Police had no authority to conduct an investigation and that the Indian courts lacked jurisdiction as the incident had occurred beyond Indian territorial waters. In response, the court granted one week to Kerala state and Central government in Delhi to file counter-affidavits.
On 4 September 2012, the Indian Supreme Court heard a petition filed by Italy seeking to quash court proceedings in Kerala on the basis that the two soldiers were entitled to functional immunity. In response, India denies any such immunity citing the lack of any international treaty regarding immunity from prosecution for Vessel Protection Detachments (VPD) on board privately owned merchant vessels. Further, Italy argued that as the incident occurred within India's Contiguous Zone India lacked jurisdiction over the vessel. Despite the limits as set out in UNCLOS, India relied on customary international law to assert jurisdiction. In 2013, the Supreme Court held that the Kerala state courts did not have the adjudication in this case and ordered that a special federal court be set up to try the marines.
The European Union passed an Official Resolution that the Human Rights of the marines have been violated as they were not officially charged for 2/3 years. Italy then went to International Tribunal for Law of the Seas(ITLOS) for redressal but ITLOS did not divulge in the matter satisfactorily.
THE FINAL DECISION
UNCLOS,1982, under Annexure-VII, provides for dispute redressal through Permanent Court for Arbitration (PCA) which presides in Hague. In Italy v India, the PCA gave a final verdict on 21st May 2020.
PCA chaired 5 member tribunals belonging to Russia, Jamaica, South Korea, Italy, and India. The tribunal passed its verdict in a 4:1 ratio. The ruling held that:
India does not have jurisdiction to try the Italian marines.
It recognized the Functional immunity of the marines emphasizing that they were on a mission for the Italian government and the case against them be processed in Italy.
Itlay will resume its criminal investigation and India is required to cease its jurisdiction in this case.
The actions of the Italian officers breached India's Freedom of Navigation under UNCLOS Article 87(1)(a) and Article 90.
India is entitled to compensation in connection with loss of life, physical harm, material and moral harm suffered.
The government of India has filed a special leave petition before the Supreme Court on July 3 seeking disposal of all criminal proceedings against the two Italian marines. The case was heard by a three-judge bench of Hon'ble Supreme Court by Chief Justice S. A. Bobde, Justice A. S. Boppanna and Justice V. Ramasubramanium.
The government said that it had "decided to accept and abide" by the order passed by the Arbitral Tribunal. Therefore based on this, the centre represented by Solicitor General Tushar Mehta pleaded in the apex court that this case should be now withdrawn as the Permanent Court of Arbitration has now held the Italian Marines liable and also upon Italy's assurance of criminally prosecuting the marines.