Maritime Mess

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With the Permanent Court of Arbitration asking India to cease criminal jurisdiction over two Italian marines who killed two Indians in 2012, a blow has been dealt to future jurisdiction over maritime zones.

By Shaheen Parween

IN a major comedown for India, the government on July 4 approached the Supreme Court seeking disposal of pending proceedings in Chief Master Sergeant Massimiliano Latorre and Others v Union of India and others. It also submitted that it would accept the award rendered by the Permanent Court of Arbitration (PCA).

On July 2, the PCA released the Arb­i­tral Tribunal’s Award in the Enrica Lexie case where two Italian marines, Massimiliano Latorre and Salvatore Girone, were accused of killing two Indian fishermen on board a fishing vessel off the coast of Kerala on February 15, 2012.

India had been asking for compensation from Italy for this crime. But the Tribunal’s decision requiring India to cease exercise of criminal jurisdiction over the two Italians is a blow to the country’s jurisdiction over maritime zones.

The award has positive aspects as well as negative. The positives are that the Tribunal by a 3:2 majority held that Italy has acted in breach of Article 87, Paragraph 1(a) and Article 90 of the United Nations Convention on the Law of the Sea (UNCLOS). Article 87 is about freedom of the high seas and Para 1 (a) and Article 90 provides that every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. Hence, the Tribunal acknowledged that Italy had breached the right of the Indian ship, St. Anthony, to freely navigate on the high seas.

Secondly, the Tribunal held that “as a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the ‘St. Anthony’) and moral harm suffered by the captain and other crew members of the ‘St. Anthony’, which by its nature cannot be made good through restitution”.

Thirdly, the Tribunal held that India has not breached Articles 87 and 92 of the UNCLOS by directing Italian tanker Enrica Lexie to change course and proceed into India’s territorial waters through a ruse and intercepting it and escorting her to Kochi after the incident. The Tribunal further held that India had not violated Article 100 of the Convention and therefore, Article 300 cannot be invoked in the present case. Article 100 provides: “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” Article 300 provides that “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognised in this Convention in a manner which would not constitute an abuse of right”.

Italy had alleged that by directing and inducing the Enrica Lexie to change course and proceed into India’s territorial waters  through a ruse, it had abused its right to seek Italy’s cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS. The contention was, however, rejected by the PCA.

Coming to the unfavourable aspects of the award for India, the PCA ruled that India has ceased to exercise criminal jurisdiction over the two Italian marines. The award has set aside the verdict of the apex court which had ruled that as the incident took place within the contiguous zone, India was entitled to exercise jurisdiction.

The Tribunal further held that the marines were entitled to immunity in relation to the acts they committed during the incident. This means that in future, if a similar incident takes place, Indian courts will find it difficult to protect the interests of its citizens in the high seas.

The Tribunal held that Italy had not violated India’s sovereign rights under Article 56 of the Convention. Article 56 provides rights, jurisdiction and duties of the coastal State in the exclusive economic zone. India had alleged that by firing at the St. Anthony and killing two Indian fishermen on board, Italy had violated its sovereign rights under Article 56 of the UNCLOS. This finding of the PCA again may have serious consequences for fishermen in future.

After the shooting by the marines, an FIR was lodged by the local police against them under Section 302 read with Section 34 of the Indian Penal Code. Following this, Italy filed a writ petition before the Supreme Court of India challenging the criminal proceedings against their marines. Though the Court held that India had jurisdiction over contiguous zones under the Maritime Zones Act, the investigation was transferred from the Kerala Police to the National Investigation Agency.

Three years later, Italy approached the International Tribunal for the Law of the Sea (ITLOS) seeking to keep back the two marines in their country during the trial process and a stay on criminal prosecution initiated by India. On August 23, 2015, ITLOS directed Italy and India to suspend prosecutions initiated in their respective countries and prevent taking steps that might jeopardise or prejudice the decision to be rendered by the Tribunal.

Thereafter, on November 6, 2015, a specially designated five-member tribunal was constituted as per the provisions of UNCLOS. On April 29, 2016, the Tribunal decided that Girone could be returned to Italy till the period of arbitration, while Latorre was already in Italy. ITLOS later referred the matter to PCA.

Hence, the Supreme Court, by handing over the case to the National Invest­igation Agency, lost the opportunity to deal with the issue of Italy’s defence of immunity. This could have had an impact on the PCA Award.

Moreover, the Court set aside the Kerala High Court’s judgment which held that the act of shooting of the two fishermen by the Italian marines was a private and criminal act and not in defence of the vessel.

This case will have an impact on future cases related to the high seas.

Lead Picture: Malayalam Wikipedia

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