The Permanent Court of Arbitration on Thursday, 2 July, delivered its award in the Enrica Lexie case. The tribunal unanimously held that India is entitled to claim compensation from Italy in relation to the incident when Italian marines shot at an Indian ship, the St. Antony, off the coast of Kerala in 2012, killing two Indian fishermen.
The countries are to consult with each other to try and agree on the amount of compensation to be paid by Italy for:
"“loss of life, physical harm, material damage to property (including to the “St. Antony”) and moral harm suffered by the captain and other crew members of the “St. Antony””."
However, the international tribunal has also held (by a 3:2) majority, that the two Italian marines who fired on the Indian fishing boat, had immunity from criminal prosecution in India. As a result, India will need to drop the criminal case for murder currently in the hands of the National Investigation Agency.
The PCA tribunal also held that India had not violated any of its international obligations in its conduct over the incident and its aftermath.
DETAILS OF THE CASE
The ‘Italian Marines’ case, as it has come to be known, arose out of an incident on 15 February 2012, approximately 20.5 nautical miles off the coast of Kerala. Two Italian marines – Massimiliano Latorre and Salvatore Girone – on board the Italian-flagged oil tanker MV Enrica Lexie, opened fire on the Indian fishing boat, St. Antony.
The incident took place within India’s Exclusive Economic Zone (EEZ), even though it was beyond our territorial waters (which extend 12 nautical miles from the coast).
The marines claimed that they thought the St. Antony was on a collision course with the Enrica Lexie, and that it appeared to be a pirate attack, which was why they opened fire. India contested this claim, and argued that regardless of the piracy contention, the Italians violated several key provisions of the UN Convention on the Law of the Sea (UNCLOS), including India’s sovereignty over its EEZ, reservation of the high seas for peaceful purposes, and India’s freedom of navigation.
India directed the Enrica Lexie to dock in Kochi after the incident, searched the ship, and arrested the two marines. Italy has long contested these actions, saying India violated international law in doing so. Italy took the matter up in the Indian Supreme Court first, challenging the criminal proceedings against them in Kerala.
The Supreme Court rejected the Italian argument that the incident took place on the high seas and so India did not have jurisdiction over the matter. However, the case was transferred to the NIA as the Centre, not the state governments, has jurisdiction over cases in the EEZ.
The most controversial aspect of the case came about after the Supreme Court allowed the marines to return to Italy to take part in the elections there in February 2013. Italy initially did not return them, but eventually they were sent back to India. The matter continued to be agitated by Italy, and by 2016, both marines were allowed to return to their homes, till such time as an international tribunal could decide if they should be prosecuted in India or not.
This was because in July 2015, Italy had taken the case to the International Tribunal for the Law of the Sea, which hears disputes relating the UNCLOS. It referred the matter to the PCA, which conducted hearings in the Hague, the Netherlands from 8-20 July 2019.
THE PCA AWARD OF 2 JULY
The detailed reasoning of the PCA for its decisions is not yet available, as only the advance award has been announced at this time. The key findings are as follows:
- The tribunal unanimously rejected all of Italy’s claims that India violated the UNCLOS in detaining the Enrica Lexie, and that they hadn’t cooperated in dealing with piracy, in a big win for India.
- The tribunal held by a 3:2 majority that the marines were entitled to immunity when it came to criminal proceedings in India, because of their status as military officers. However, while this is a disappointment for the Indian case, the PCA also took note of Italy’s commitment, expressed during the proceedings, to resume its own criminal investigation into the incident, which means that India has some leverage to ensure justice is served in the Italian court system, if not ours.
- While the tribunal held that Italy had not violated India’s rights to sovereignty in respect of the incident, they held the attack on St. Antony was a violation of India’s rights to freedom of navigation under Articles 87 and 90 of the UNCLOS. It is for this reason that India is entitled to compensation – the nature of the harm caused means it cannot be addressed by mere restitution.
- If India and Italy are unable to agree on the compensation to be paid, then the quantification of the compensation amount can be taken up by the PCA.
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