On February 15, 2012, two Indian fishermen were killed off the coast of Kerala. They were aboard the St. Antony. Furthermore, as per India’s allegations, two Italian marines killed the Indian fishermen. The former were aboard the Italian-flagged commercial oil tanker MV Enrica Lexie. Therefore, right after the incident, the India navy seized the MV Enrica Lexie. Furthermore, the two Italian marines were detained without any formal charges. They got to leave temporarily, early in the year 2013.
In January 2015, as per an official resolution by the European Parliament, such a detention was deemed violative of basic human rights. It provoked a lot of diplomatic tensions between India and Italy. There was also a conflict of opinions. Questions raised revolved around the legal jurisdiction and functional immunity between both the governments.
The incident also highlighted the practice of commercial shipping using armed guards. Following the same, Italy and India also suffered commercial consequences.
Initially, the Kerala Government was trying the two Italian accused. But, the Italian government severely opposed. Furthermore, the Italian Consul General in Mumbai filed a petition in the Kerala High Court. But, the submission was that Kerala Police lacked authority to conduct the investigation.Questions raised included India’s jurisdiction to try the case.
Thus, the contention was that the incident had occurred beyond Indian territorial waters. Furthermore, eventually the appointment of an independent United Nations court also took place. Hence, the aim was to resolve the conflict of jurisdiction. However, the dispute was finally referred to International arbitration.
The Permanent Court of Arbitration (PCA)
On June 26, 2015, the arbitral proceedings began under UNCLOS. The United Nations Convention on the Law of Sea. Italy served on India a “Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim and Grounds on which it is based.”. There was constitution of an ad-hoc tribunal to settle the disputes between the nations.
The resultant proceedings were as follows:
11 December, 2015:
Italy filed a “request for the Prescription of Provisional Measures” (Article 290, Paragraph 1 of the UNCLOS).
26 February, 2016:
India submitted “Written Observations of the Republic of India”.
29 April, 2016:
A public hearing was held in the Peace Palace. The Peace Palace is the seat of the Permanent Court of Arbitration. The Arbitral Tribunal adopted an order in respect of Italy’s request.
As per procedure, parties even exchanged written pleadings.
30 September, 2016:
Italy filed its Memorial.
14 April, 2017:
India submitted its Counter-Memorial. India presented counter claims. It raised objections to the Tribunal’s jurisdiction and the admissibility of Italy’s claims.
26 November, 2018:
The Arbitral Tribunal underwent a change.
8 July, 2019- 20 July, 2019:
The Peace Palace held the hearing. It addressed the jurisdiction of the Arbitral Tribunal. Furthermore, the discussion included merits of Italy’s claims and India’s counter-claims.
The Final Arbitral Award
On July 2, 2020, the Hague-based PCA published an extract of the final award. A five-bench Arbitral tribunal decided the case. “Marines are entitled to immunity in relation to the acts that they committed…” Their status as State Officials operated as an exception to the jurisdiction of the Indian Courts. The Tribunal said. It asked India to “take the necessary steps to cease to exercise its criminal jurisdiction over the Marines”. The Tribunal relied on Italy’s commitment to criminally investigate into the events.
The Tribunal had observed that both the nations had concurrent jurisdiction over the incident. But, the Indian Ministry of External Affairs responded to this setback. The tribunal acknowledged that, even so, the conduct of the Indian authorities under the UNCLOS was valid. But, the Tribunal had also observed that both the nations had concurrent jurisdiction over the incident.
Thus, eventually, India was entitled to payment of compensation. Compensation included the loss of life, physical harm, material damage to property and moral harm suffered by the deceased . But, it was the only relief that the Tribunal granted to India.
A majority of 3-2 passed the decision. India’s P.S. Rao and Patrick Robinson of Jamaica cast negative votes .In addition to them, Italy’s professor, Francesco Francioni, South Korea’s Jin-Hyun Paik Korea and Russia’s Vladimir Golitsyn were the members of the Tribunal.
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