India has no ‘jurisdiction’ to try Italian marines in fishermen killing case, says Hague-PAC

The two Italian marines accused of killing two unarmed Indian fisherman off the coast of Kerala “are entitled to immunity” on the acts they committed during the incident of February 15, 2012 and that India is “precluded from exercising its jurisdiction over the marines”, judges at the Hague-based Permanent Court of Arbitration (PCA) has ruled by three votes to two.

The PAC, however, unanimously, decided that “India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the Indian vessel named St Antony) and moral harm suffered by the captain and other crew members of the St. Antony”.

The PAC also decided by three votes to two that “India must take the necessary steps to cease to exercise its criminal jurisdiction over the marines”.

The Arbitral Tribunal shall retain jurisdiction should either party or both parties wish to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India, in which event the Arbitral Tribunal would fix a timetable for further proceedings, and that, should no such application be received within one year after the date of the present Award, the proceedings shall be closed.

The five-member Arbitral Tribunal was chaired by Judge Vladimir Golitsyn. The other members are Judge Jin-Hyun Paik (Republic of Korea), Judge Patrick L. Robinson (Jamaica), Professor Francesco Francioni (Italy), and Dr Pemmaraju Sreenivasa Rao (India). Professor Francioni was appointed by Italy while Dr Pemmaraju Sreenivasa Rao was appointed by India.

The PCA gave its ruling on May 21 but published the decisions only on Thursday.

The Permanent Court of Arbitration is an intergovernmental organisation established by the 1899 Hague Convention on the Pacific Settlement of International Disputes.

New Delhi-Rome relations soured

The case has soured relations between New Delhi and Rome.

The dispute concerns an incident that occurred on February 15, 2012, approximately 20.5 nautical miles off the coast of India involving the MV Enrica Lexie, an oil tanker flying the Italian flag, and India’s subsequent exercise of jurisdiction over the incident, and over two Italian Marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, who were on official duty on board the Enrica Lexie at the time of the incident.

According to India, the incident concerns the killing of two Indian fishermen on board an Indian vessel named the St. Antony, allegedly by rifle fire from the two marines stationed on the Enrica Lexie.

India argued that Italy violated India’s rights under Article 56 (Rights, Jurisdiction and Duties of the Coastal State in the Exclusive Economic Zone) of the United Nations Convention on the Law of the Sea (UNCLOS), breached its obligation under Article 58 (Rights and Duties of Other States in the Exclusive Economic Zone) of UNCLOS, violated India’s right and freedom under Article 87 (Freedom of the High Seas) and Article 90 (Right of Navigation) of UNCLOS, and infringed upon India’s rights under Article 88 (Reservation of the High Seas for Peaceful Purposes) of UNCLOS.