cpc

India entitled to compensation in the Enrica Lexie Case: Permanent court of arbitration


Court :

Brief :
On 2nd July, the tribunal held that Italy has acted in breach of the Article87(1)(a), and Article 90 of the United Nations Convention for the Law of the Sea and that India is entitled to payment of compensation.

Citation :

What do you need to know?

  • On February 15, 2012, at a distance of about 20.5 nautical miles from the coastline, a fishing boat 'St Antony' happened to pass "Erica Lexie", a tanker flying the Italian Flag. Two marines aboard the ship mistook 'St Antony' for a pirate boat, and opened fire at it. This resulted in the death of two fishermen.
  • First Information Report (FIR) was lodged by the local police against the marines under Section 302 read with Section 34 of the Indian Penal Code (IPC),1864 in respect of the firing incident leading to the death of the two Indian fishermen.
  • Following this, the Republic of Italy filed a writ petition in the Supreme Court under Article 32 of the Constitution, challenging the criminal proceedings against marines in Kerala.
  • Supreme Court held that India has jurisdiction over contagious zones under Maritime Zones Act. Justice Kabir said in the judgment that "The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country".
  • In July 2015, Italy took the case to the International Tribunal for the Law of the Sea, an independent judicial body under the UNCLOS. The ITLOS later referred the matter to the Permanent Court of Arbitration. Hearings at PCA addressed the jurisdiction of the Arbitral Tribunal as well as the merits of Italy's claims and India's counter-claims.

Important legal provisions involved in the case:

  • Article 87(1)(a), UNCLOS: The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation;
  • Article 90, UNCLOS: Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.
  • Article 56, UNCLOS: Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
  • Article 58(3), UNCLOS: Rights and duties of other States in the exclusive economic zone
  • Article 88, UNCLOS: The high seas shall be reserved for peaceful purposes.
  • Article 92, UNCLOS: status of ship
  • Article 100, UNCLOS: All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.
  • Article 300, UNCLOS: States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.

What is the recent development in the case?

  • On 2nd July, the tribunal held that Italy has acted in breach of the Article87(1)(a), and Article 90 of the United Nations Convention for the Law of the Sea and that India is entitled to payment of compensation.
  • The Tribunal also unanimously held that India has not breached Article 87 of the UNCLOS by asking Enrica Lexie to change its course and by detaining it at Kochi port after the incident of firing on Feb 15, 2012.
  • The Tribunal found that Italy has not violated India's sovereign rights under Article 56  58(3), or under Article 88 of the Convention.
  • It also found that India has not acted in breach of Article 87(1)(a), Article 92, Article 100 of the Convention and that therefore Article 300 cannot be invoked in the present case

What are your views regarding the judgement passed by the PCA?

Let us know in the comments below

 

Shalini Kashyap
on 04 July 2020
Published in Others
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