Open Access Research Article
ENRICA LEXIE – JUSTICE DELIVERED OR NOT?
Published Paper
Article Details
ENRICA LEXIE – JUSTICE
DELIVERED OR NOT?
AUTHORED BY
- B. APARNA SUNDAR,
Advocate,
Madras High Court
Abstract
The Permanent Court of Arbitration on 2 July, 2020 pronounced
its verdict on the Enrica Lexie – St.Antony incident which
took place on the fateful day of 15 October, 2012 which saw the death of two
innocent fishermen apparently in guise of pirates in the eyes of the Italian
marines. Much to the dissatisfaction of the entire country, the Court ordered immunity to the marines and stated
Italy would investigate into the criminal charges and India would be entitled
to compensation only. Whether or not justice has been served or not at every
count is discussed in the paper. The legal
reasoning behind the substantive and procedural issues and the arbitrators
dissenting this issues is also dealt with.
And the question of defeat or disappointment is not the focus of this
paper but a consequential debate on fairness, equity and justice. After 8 years
of long wait, justice must not only be done but manifestly should have seem to
be done. Was it really done?
Keywords: Enrica Lexie, Italian
Marines, fisherman, Justice, Permanent Court of Arbitration.
Genesis of the Issue
The Italian marines ‘mistakenly’ as
chosen to understand, shot two India fishermen aboard the St.Antony boat in the
Indian Contiguous zone thinking them to be pirates.
The month old award of the Permanent
Court of Arbitration providing for the lack of jurisdiction for India and the
presence of immunity of the marines held that the case must be tried in Italy
instead. Not getting the facts juxtaposed, this reminds us of a gross Indemnity
Act passed after the Jalian Wala Bagh massacre as a white washing bill in 1919.
The Permanent Court of Arbitration
(PCA) published the extract of the final award of the ad-hoc tribunal
constituted to settle disputes related to the United Nations Convention for the
Law of the Sea (UNCLOS) regarding Italian marines.
There are several contentions raised
by both parties and some have been unanimously or differentially decided acceding
or rejecting certain claims. The Tribunal responded to the claims of both
parties, on ten counts, six of which are procedural and four are substantive.
This paper analyses these ten counts
in detail, referring to the pertinent clauses of domestic and international
legislations as well as the findings of the Tribunal unanimously or partially
as the case maybe.
Chronology of events
On February 15, 2012, St.Antony a
boat from Kerala had set forth in the Arabian sea. Two of the Indian fishermen
aboard the boat were killed off the Indian coast. Subsequently India detained
two marines from the Italian commercial oil tanker MV Enrica Lexie. The stand
taken by the Indians is that the marines killed the fishermen in Indian
territorial sea. The Italian marines on the other hand claimed that they
understood the fishermen to be pirates. There has been recurrent imbroglios
between India and Italy with respect to jurisdiction, immunity, diplomatic
relations and applicable laws.
On account of criminal charges the
marines were detained in India, one till 2014 and the other till 2016. An
independent Court of the United Nations followed through the charges to resolve
the conflicts. Beyond the perspective of murder charges, human rights questions
on detention and on boundaries, a tangent also broke into commercial
relationships and trade by sea and the consequent impact on the blue economy of
both nations.
ITLOS Order[1]
The International Tribunal on the Law
of the Sea passed an interim measure on August, 24 2015 ordering both Italy and
India to suspend all court proceedings and to refrain from initiating new ones
until the Permanent Court of Arbitration decides on the same.
The arbitration before the PCA was instituted on June
26, 2015 when Italy served on India a Notification and Statement of Claim under
Annex VII to UNCLOS in respect of “the dispute concerning the “Enrica Lexie’
Incident”.
Proceedings before the PCA[2]
From 8 to 20 July 2019, the Arbitral
Tribunal held a hearing concerning its jurisdiction as well as the merits of
Italy’s claims and India’s counter-claims at the headquarters of the PCA at the
Peace Palace in The Hague, the Netherlands.
The nub of the issues raised by both
parties are:
|
ITALY’S STANDPOINT
|
INDIA’S STANDPOINT
|
|
(ii)
India has violated Article 87, 92, 97 and 100 under Part VII &
Article 300 under Part XVI of the UNCLOS and
(iii)
India is in violation of the sovereign immunity of the Marines.
|
(i)
Dispute is with Immunity and not with UNCLOS
(ii)
Question of Convention not involved, therefore Tribunal lacks
jurisdiction over the claim concerning the immu,
(iii)
India’s legislation not under radar as the same not raised by Italy on
the date of filing
(iv)
claim concerning Indian law is inadmissible as it constitutes new claim
not falling under this Dispute or this Tribunal.
|
The arbitral tribunal can most certainly be said as a diverse set of members
representing both the party states and other neutral states. The Tribunal consisted of
1. Judge Golitsyn, the
President of this Tribunal from the Russian Association of Maritime Law and
Professor at Moscow State University and Moscow State Institute of
International Relations
2. Patrick Lipton
Robinson, belonging to Jamaica and a member of the International Court of
Justice for the term commencing from February 2015.
3. Paik Jin-hyun of South
Korean origin and the current President of the International Tribunal for the
Law of the Sea,
4. Sreenivasa Rao Pemmaraju, the only member of the Tribunal belonging to
Indian origin. Interesting he was also the member of Bay of Bengal
Maritime Boundary Arbitration tribunal (Bangladesh/India)
5. Francionior Francesco of Italian
origin, from the, European University Institute, Florence, Italy.
Order of the Tribunal
Firstly,
On the procedural contention raised by India regarding
the jurisdiction or lack thereof of the Tribunal excepting Arbitrator Robinson,
the remaining four members of the Tribunal has acceded to the finding that
there is a dispute between the Parties involving the interpretation and
application of the UNCLOS.
The most pre-emptory question before
any adjudicating authority is the constitution or the authority of it in deciding
the issue raised by it. India lost it in this count and therefore the subsequent
decisions taken by this tribunal in this issue is binding on both parties.
Secondly,
By rejecting yet another stance of the Indian
submission, the Tribunal leaving out Arbitrator Robinson has declared that it
has jurisdiction over the dispute, subject to its decision on the specific
objections to its jurisdiction raised by India.
Thirdly,
All the arbitrators have concluded that Indian’s
claims are admissible and rejected the stand of Italy in the third procedural
issue.
Fourthly,
Italy had invoked Article 2 Para 3, Article 56 Para 2
and Article 58 Para 2, first belonging to law of territorial sea and last two pertaining
to the applicability of this Convention and the regard to law of other states
when it comes to exercise of authority in the exclusive economic zone. However, the Tribunal on a vote of 3:2 struck
down this argument as the incident did not take place in the territorial sea or
the exclusive economic zone but in the contiguous zone.
Fifthly,
The members Golitsyn, Paik and Francioni Tribunal in furtherance
of the question of jurisdiction holds that it has necessary jurisdiction on the
immunity of the marines Sergeant Massimiliano Latorre and Sergeant Salvatore
Girone.
Sixthly,
The Tribunal uniformly decided that
there was no necessity to go into the compatibility of Indian’ Maritime Zone
Act, 1981, the Notification passed thereunder and the UNCLOS. At this point it
is pertinent to note that the Maritime Zones Act was passed in 1976 and the
UNCLOS was subsequently passed in 1982. There is no incompatability between the
two as held by Supreme Court in Republic
of Italy v Union of India.[5]
Seventhly,
The argument of Italy that India has violated the
freedom of navigation guaranteed under Article 87 Paragraph 1 (a) was not entertained
by the Tribunal. In the substantive issues relating to the merits of the case,
the tribunal has unanimously held that India has not violated Italy’s freedom
of navigation and also that India has not violated Article 92, paragraph 1, of
the Convention, pertaining to its jurisdiction in high seas.
As a matter of fact the Tribunal has went on to hold
that in the issue of penal or disciplinary responsibility, Article 97 which
provides for the applicability of flag state or the state of person’s
nationality is not applicable in this case. Jurisdiction, that Article 97,
paragraphs 1 and 3, of the Convention are not applicable in the present case;
It is dubious as to the invocation of Article 100 by
the Italy as there was no element or nexus of any pirate or threat of pirate
within the contiguous zone of India. Without any relevance the state of Italy
has scathingly stated that India has not cooperated for the repression of
privacy. However, the tribunal has uniformly agreed that India has not violated
Article 100. Invocation of Article 300, the ubberimae fiddie clause in the
UNCLOS cannot be done by Italy.
Eighthly,
Arbitrators Golitsyn, Paik and Francioni have decided
that the Italian marines are infact eligible for immunity for the acts
committed by them in connection with Enrica Lexie. And thus, has absolutely
excluded India exercsising its criminal law over the marine. This particular
obiter dicta is quite disturbing for India as the state opines that India has
lost in getting justice for its dead fishermen.
However, it is pertinent to note that 2 of the
panellists were against the said finding. And it could be stated that merely by
one vote, India is unduly disappointed.
Ninthly,
More as a consolation prize given to justice, the
Tribunal decided that Italy should proceed on with the investigation of the
occurrence in Indian contiguous zone and that India must cease the exercise of
its criminal jurisdiction over the marines, much the chagrin of India. However,
even in this ground two of the Tribunal members, Robinson and Sreenivasa Rao
are against the finding.
Tenthly,
Article 56 of the UNCLOS
provides for the Rights, jurisdiction and duties of the coastal State in the
exclusive economic zone, that is,
the sovereign right of a state. The Tribunal holding that India’s rights
has not been violated is erroneous in law as the incident in February, 15 2012
has occurred admittedly at 20.5 nautical miles, which is within the contiguous
zone and very much within the exclusive economic zone yet again with the assent
of only Golistyn, Paik and Francioni. The same has been the stance taken even
with respect to Article 58 which deals with the Rights and duties of other
states in the exclusive economic zone.
Furthermore, the Tribunal unanimously held that Italy
has not violated Article 88, which is the use of high seas only for peaceful
purposes. The marines have crossed the exclusive zones of their flag country,
ventured into high seas, entered into India’s exclusive zone and even treaded
upon India’s contiguous zone and most certainly not reserved for any sort of
peaceful means. That is probably an irony on the part of the Tribunal.
Eleventhly, Unanimously
The Tribunal further held that as far as the marines’
act has been concerned, Article 87 paragraph 1, (a) and Article 90, that is,
the right to sail ships has been violated, which is the freedom of high seas
and right of navigation. Clearly two innocent poor fishermen were murdered in
the contiguous zone of India, and the Right of Navigation is most certainly
affected maybe not in the high seas as stated in Article 90.
India is a peninsular state with three of its sides
covered in water. The fact that Indian sailors and fishermen are at a threat of
their lives for conducting their regular business in the territorial zone and
contiguous zone is in fact alarming. The sustainability of India’s blue economy
is has also come to a threat of vulnerability to life and property.
Lastly, on the twelfth count,
The PCA has unanimously held that on ground of Italy’s
violation of Article 87, paragraph 1 (a) and Article 90 of UNCLOS, there has
been an injury upon India’s interest for which India is entitled to payment of
compensation in connection with loss of life, physical harm, material damage to
property and moral harm suffered by the captain and other crew members of the
“St. Antony”. However, the Tribunal also held that the amount of compensation
so discussed would be subject to an agreement of both the parties and kept a
period within one year to arrive at a specific compensative quantity.
Conclusion
This judgment evidently cannot be seen in a win or
lose angle. There are some points as to the violation of India’s rights which
has been acknowledged by the Tribunal. The most disappointing fact is that
justice was expected with respect to the murder of fishermen in India. And
India lost its jurisdiction to try the criminal case. The National Fishworkers’
Forum (NFF) and the Kerala Swatantra Matsyathozhilali Federation[6]
have expressed their dissent and dissatisfaction over not allowing India the
authority to try the case of the death of their own people.
On a multilateral perspective this incident
is a furthermore greater eye opener with respect to the problem of deploying
armed men on commercial vessels when their protocols are not found to be in any
way responsible or accountable while firing their weapons. There needs to be an
apparent threat and only after warning can extreme action be taken by marines
in general. It has been reported that globally, approximately 30,000 armed men
are employed in vessels and ships.[7]
Another lacuna in law is the hierarchical
military officials who are allowed to navigate and attack, if situation calls
for instead of non-officials or private guards calling command. Moreover, where
and who is the master of this ship and should not there be an accountable
structure through which orders flow. Therefore this judgment does in no way
give a solution to the future probability of death or hurt to seafarers and
fishermen and likely loss of property or even the movement of foreign vessel in
the EEZ, Contiguous zone and territorial waters of the coastal states.
Eventually, there did come an end to an open
Pandora box after an eight year long wait.
[1] The ‘Enrica Lexie’ Incident (Italy v. India), Provisional
Measures, https://www.itlos.org/en/main/cases/list-of-cases/case-no-24/ (last visited October 16, 2022).
[2] The ‘Enrica Lexie’ Incident (Italy v. India), https://pca-cpa.org/en/cases/117/ (last visited October 15,
2022).
[3] The Territorial Waters,
Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976
(India)
[4] The Notification of the Ministry
of Home Affairs of the Republic of India, No. S.O. 671(E), dated 27 August 1981
(India)
[5] Republic of Italy v Union of
India (2013) 4 SCC 721
[6] Enrica Lexie verdict leaves fishers enraged, https://www.thehindu.com/news/national/kerala/enrica-lexie-verdict-leaves-fishers-enraged/article31984474.ece
(last visited October 10, 2022, 11:34 PM).
[7] R. Krishnakumar, Enrica Lexie case: Justice denied, Frontline,
(November 24, 2022, 12:32
PM), https://frontline.thehindu.com/the-nation/article31987157.ece
Article Information
ENRICA LEXIE – JUSTICE DELIVERED OR NOT?
Authors: B. APARNA SUNDAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/20
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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