• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

ENRICA LEXIE CASE AND INDIAN JURISDICTION




“The security of which we speak is to be attained by the development of International Law through an International Organization based on the principles of Law and Justice”

- Ludwig Quidde


On the afternoon of 15th February 2012, two fishermen were killed while on their daily fishing spree while aboard the St. Antony off the coast of Kerala. These killings were done by two Italian marines aboard the Italian commercial oil tanker called MV Enrica Lexie. What followed has been a long ordeal and a legal tussle between the two countries who took their case to the UN.

Because this incident took place within the “Contiguous Zone” at a distance of 20.5 Nautical Miles from the coast of Kerala, India immediately arrested the two marines for trial. This case had and still has garnered a lot of attention internationally since it has been a point of discussion over and over due to the recurring trials and negotiations between India and Italy. Since 2012 the international relations between India and Italy have been tumultuous owing to this very reason.

The arrest of the two marines was challenged by Italy by virtue of Article 97 of UNCLOS or the United Nations Convention on Law Of Seas stating that India held no jurisdiction and authority to arrest the Italian Marines.


Ruling of the Supreme Court of India

The Hon’ble Supreme Court of India held that India did in fact hold jurisdiction over the matter since the incident took place in the Contiguous Zone which lies within the Exclusive Economic Zone of the Indian waters which stretches to 200 NM from the coast. But it was also upheld that only the Indian Government held the right of trying the case and not the Kerala State Government.

However the case took a turn when Italy approached the International Tribunal for the Law of Sea1working under the ICJ which directed both the countries to drop all the prosecutions of the case.

1. Under Annex VII of UNCLOS

By 2016 the two marines were returned to their country on the grounds of health conditions following which the case was taken up by the Permanent Court of Arbitration. This was exactly what Italy had been wanting all along and had wanted the trial to be conducted in Italy itself without giving any right of trial to India. But through all the diplomatic negotiations and approaches resorted to by Italy to save its marines it sure is no surprise if they are not convicted through the trial in Italy.


Analysis of the Award Passed and Indian Jurisdiction

But the question as to Whether India losing its jurisdiction through the recent order passed by the tribunal is valid is shrouded under a canopy of issues that could be raised for contentions.

Ø According to the established law, which of the countries holds the rightful jurisdiction over the matter at hand?

The answer to this question is part of the award that the tribunal put forth while stating that both India and Italy had concurrent jurisdiction over the incident and also had a valid legal basis to initiate as well as carry out criminal proceedings against the two marines.

Then the question arises as to why the trial is ordered to be held in Italy when it could have very well been continued in India. The victims of the incident as well the incident that took place were Indians and within the Indian Territory respectively. Even the commercial tanker Enrica Lexie entered the Indian Territorial Waters on its own accord and was not forcefully made to do so.

But because the marines were state officials, they could be granted immunity from being tried for criminal offences by a foreign jurisdiction2. India's stand that UNCLOS isn't worried about issues identifying with the immunity was solid. Invulnerability of state authorities must be administered by explicit multilateral or reciprocal arrangements or understandings. It ought not to be extraneously acquired to settle issues of jurisdiction.

.Also, regardless of whether Italian marines are considered as state authorities, they were sent on an Italian vessel which was clearly commercial. Italy did so singularly without the front of any multilateral or two-sided plan. There is no show that such people as the marines in such cases are immune from the local criminal purview.

2. Under Article 31 of Vienna Convention On Diplomatic Relations

Only the heads of states, heads of governments and foreign ministers generally appreciate invulnerability abroad separated from licensed negotiators who are secured by the Vienna Convention.

Effect of the Precedent Set

The decision as passed by the Tribunal on the marines' extent of immunity sets a risky point of reference. Nations may now be enticed to sanction explicit laws to offer insusceptibility to their military and Para-military work force and others by proclaiming them state authorities and from there on place them on various types of business specialty and use them for devious purposes. This can prompt an expansion in strains for the most part and particularly between enemy states, and all the more so if there are issues identifying with coastal workers between adjoining states.

That the Tribunal found that the firing on the St. Antony, makes Italy liable of "abusing India's Freedom and Right of Navigation" can be considered to be a satisfactory finding. Therefore, the tribunal also held that "India is qualified for all monetary compensations regarding death toll, physical mischief, material harm to property and good damage" executed by Italy. Presently it is occupant on the administration to guarantee that Italy is made to pay completely for the death toll and all the inconvenience it has caused in this issue. Any slip by on this check will be unforgivable. Contemplations of good relations with Italy or with the European Union (EU) which had remained in favour of Italy all through this issue ought not to be permitted to impact these particular arrangements.

What Should Be India’s Next Step?

The Indian legislature ought to guarantee that it intently screens the case procedures in the Italian court against Lattore and Girone, the two marines. This is in any case, as referenced prior, that Italy would just try to make a half-hearted effort of a reasonable preliminary. The Indian Government must ask the Embassy in Rome that a negotiator ought to consistently be available during court procedures. It also must not acknowledge Italy's requests stating that it would not be conceivable when classified data is being introduced under the watchful eye of the court. On the off chance that the Italians had gone to the extraordinary in supporting the marines, India must not show any laxity in making sure about equity for the two fishermen even in an Italian court.


Conclusion

This is additionally a period for the official and legal parts of the Indian state to introspect on how they took care of the entire undertaking strategically, carefully and lawfully. Various inquiries emerge. Some of them can be brought up as - Was it judicious to choose the National Investigation Agency to deal with the case after the Supreme Court had requested for the trial of the marines by a special court? Should the psychological oppression charges have been levelled against the marines just to be dropped later? Should the Supreme Court not have chosen to exercise jurisdiction and insusceptibility ab initio as opposed to leaving them open?

This is particularly significant, for it utilized these deferrals to fabricate compassion toward the marines in the EU. As has been always practiced by India on its part and by virtue of being a decent international state, India has acknowledged the Tribunal’sdecision and is persistently adhering to it. But what also is important presently is that it must guarantee that Italy too completely adheres to it and delivers a trial which is justly and fairly executed.


Author of the piece is ANGEL NAIR, 5TH YEAR B.S.L.L.L.B student of D.E.S. SHRI. NAVALMAL FIRODIA LAW COLLEGE, PUNE

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