After 8 long years, The Permanent Court of Arbitration (“PCA”), by three to two majority has pronounced its ruling in the much controversial Enrica Lexie incident between India and Italy. While on one hand, the PCA has held Italy liable to pay compensation to India; on the other, it has stopped India from prosecuting the two Italian marines within its jurisdiction citing the reason of official immunity enjoyed by the marines. The scope of the analysis the author engages with concerns: first, highlighting the jurisdiction conundrum pertaining to the matter; second, presenting a brief analysis of the decision taken by the PCA; and third, analysing the stance of the Indian Supreme Court.
The incident dates back to 2012 when an Italian flagged ship by the name of Enrica Lexie was traveling back from Singapore to Egypt. During the journey the Italian Ship came across an Indian fishing vessel named St. Anthony. The two Italian Marines who were in command of the ship mistook the Indian shipping vessel to be a pirate vessel and killed two Indian fishermen. It is pertinent to note that the shooting occurred approximately 20.5 nautical miles away from the coast of Kerala, in India’s exclusive economic zone. Consequently, the Italian Ship was asked to report to the Kochi port after which the two Italian Marines were tried for the offence of Murder under Section 302 of the Indian Penal Code, 1860 (“IPC“).
The Jurisdiction Conundrum
The crux of the case centers around one question: who has the jurisdiction to try the case? It is absolutely clear that the shooting incident occurred in the international waters thereby falling outside the territory of India. Therefore, India relied on Section 3 and 4 of the IPC, which authorizes the Indian Courts to try any person in respect of an offence committed by him on any ship or aircraft registered in India.
Italy cited Article 97 of the United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”), addressing ‘penal jurisdiction in matters of a collision or any other incident of navigation’. Italy argued that if India wants to institute any kind of penal or disciplinary proceedings, then the same can be done only before the administrative or judicial authorities of the State of which the ship carries the flag or the State of which such person(s) is a national. This, read with Article 92 of UNCLOS, providing for the exclusive jurisdiction of the flag state, strengthened Italy’s claim of jurisdiction. In addition to the UNCLOS, Italy highlighted the Maritime Zones Act, 1976 (“MZA”) providing for innocent passage of the foreign ships in the territorial waters.
Supreme Court’s Dictum and the Resultant Diplomatic Standoff
The Apex Court in Chief Master Sargeant Massimiliano Latorre v. UOI, took the help of the judgment pronounced by the Permanent Court of International Justice in the SS Lotus Case and observed that India has the exclusive jurisdiction to try the case. The Supreme Court pointed out that since the shooting occurred within the contiguous zone, India shall exercise sovereignty over the case. Furthermore, the Court designated a Special Court to decide the dispute in consonance with the provisions of MZA, UNCLOS, and Indian criminal laws, provided that there is sufficient harmony between UNCLOS and India’s domestic laws. Meaning thereby, India being a signatory to the UNCLOS is bound to adhere to the provisions of the same if there is no conflict with its domestic laws. The consequence of it was the lack of hearing of Italy’s defence before it.
The decision of the Supreme Court has escalated tensions between the two nations and grossly affected their diplomatic ties. Italy expressed disappointment over India’s decision to try the two Italian Marines under the provisions of the Convention for the Suppression of Unlawful Acts. India’s ambassador to Italy was summoned by the Italian Foreign Ministry to highlight concerns relating to the Supreme Court’s judgment. India gave leeway to the two Marines and permitted them to leave and vote for the national elections in Italy for the time being. However, after the elections, Italy refused to send the marines back to India thereby triggering diplomatic fallout between the two nations.
Analysis of the PCA’s Ruling: Justice Served or a Matter Disposed Off?
The five-member ad-hoc Tribunal held that India does not have the right to prosecute the marines and any arrest and investigation against them can only be conducted in Italy. Further the Tribunal ruled that India’s sovereignty has not been impinged upon by Italy. Even though the PCA admitted that both India and Italy had concurrent jurisdiction to try the matter, it still concluded that because of the immunity enjoyed by the marines in their capacity as agents of the Italian state, India’s authority to try them under its criminal law was precluded. However, notwithstanding this, the Tribunal held that the marines violated India’s Freedom of Navigation under the UNCLOS (under Article 87(1)(a) and Article 90).
PCA’s ruling to stop India from exercising criminal jurisdiction over the Italian Marines comes as a major setback for India, as well as the international legal system, on several grounds.
• First, it blatantly violates the territorial principle which states that the criminal shall be tried at the place where the offence has been committed.
• Second, the conduct of the trial in Italy is bound to deprive the victims of their right to participate in the criminal proceedings which goes against the principles of natural justice, i.e., fair trial.
• Third, the argument that the two Italian marines are protected by sovereign immunity as they are meeting the orders of the Republic of Italy appears without any substantial standing. This is primarily given the fact there exists no agreement pertaining to functional sovereign immunity between India and Italy.
• Fourth, the contempt proceedings initiated by the Supreme Court of India against the Italian ambassador for not sending back the marines to India after the national elections are justified. The ambassador cannot claim diplomatic protection under the Vienna Convention. As per the Diplomatic Relations Act, 1972, invocation of writ jurisdiction under Article 32 of the Constitution of India by Italy implies a waiver of diplomatic protection.
On this basis, while the PCA concluded that the conduct of the Italian military officers violates India’s freedom of navigation, and has ordered Italy to pay compensation, the fact remains that India has been asked to cease its exercise of criminal jurisdiction over the marines. The eight years long quest for justice for the two fishermen has ended in disappointment. The deprivation of authority to try the case has led to several critics pointing out the lessons to be learned for Indian diplomacy to handle such challenges concerning international law significantly better.
Amol Verma is a fourth year law student in the B.B.A., LL.B. (Hons.) program at Chanakya National Law University (CNLU), Patna.
Image: Aijaz Rahi/Associated Press