This Short write – up is written by Ms. Nashita Nazneen. A from B. S. Abdur Rahman Crescent Institute of Science and Technology.
Case Title – Italian Republic vs. Republic of India, PCA Case No. 2015-28
Claimant: Italian Republic
Respondent: Republic of India
On 15 Feb 2012, two Italian marines namely Salvatore Girone and Massimiliano Latore were traveling in an Italy oil tanker “Enrica Lexie”. In the off-coast region of Kerala, two fishermen in the Indian vessel “St.Antony” were shot dead. India alleges that the two marines in the oil tanker killed two innocent men. Indian Navy intercepted the tanker and detained the marines. This sparked diplomatic tension on conflict of interest over legal jurisdiction and functional immunity between two governments. They were detained in India for 2-4 years with no formal charges. In the year 2014, National Investigation Agency (NIA) charged marines under IPC section for murder, attempt to murder, mischief, and common intent.
India set up a specially assigned court as ordered by SC to determine the pertinence of jurisdiction. In January 2015, the European Parliament stated that; “they were detained with no charge by the Indian authorities, which is a violation of human rights”. In 2015, Italy moved the International Tribunal for Law of Sea (ITLOS) seeking mariners to stay in their own country during the trial process, the tribunal stopped Italy and India from initiating criminal proceedings.
- Italy and India must suspend all domestic prosecution.
- It also ordered that no action shall be initiated; it may lead to jeopardy, prejudice of system, and procedure.
With no relief in the favor of Italy, they moved the Permanent Court of Arbitration (PCA). Marines claimed that they thought the fishermen were pirates coming for attack and the action was merely defensive.
- Whether PCA Tribunal has jurisdiction to entertain this matter?
- Whether the claimant is covered under functional immunity?
- Whether the respondent can undertake criminal proceedings?
Favour of Italy:
- Respondent pleaded that PCA has no jurisdiction to adjudicate this matter. However, a five-member bench ruled 4-1; held that it has jurisdiction under Annex VII of the United Nations Convention of the Law of Sea (UNCLOS).
- Claimants were granted functional immunity as officials of the State on concurrent jurisdiction; armed force members in official exercise in 20.5 nautical miles (contiguous zone under international water).
- Respondent is precluded from exercising its criminal jurisdiction.
Favour of India:
- Tribunal held that the actions of claimants breached the respondent’s freedom of navigation under Article 87 and 90 of UNCLOS.
- Entitled to compensation for death, physical harm, material damage to property, and moral harm suffered by crew of “St. Anthony” vessel.
- Even if the respondent has no jurisdiction to prosecute claimants; they will be tired under Italian Law, with the burden of proof.
This judgment was two-way, was respondents and claimants suffered both gain and loss. On one side were respondents failed jurisdiction to prosecute, they are also entitled to compensation. Claimants received functional immunity; however, they will still be tired under Italian Law. Arbitral Tribunal decided this matter on 21 May 2020 but released on 2 July 2020 when the Indian Government approached the Court to dispose of the pending proceeding in Massimiliano Latore vs. UOI [2016 SCC OnLine SC 598] as they agreed to follow the order of PCA.