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India claimed compensation from Italy, in the Enrica Lexie case in which two Italian marines were accused of killing two unarmed fishermen off the coast of Kerala on 15th February 2012. The Italian marines held that they fired at the fishermen because they mistook them for pirates in the international waters.
It’s an ongoing international controversy that has sparked a conflict of opinions over legal jurisdiction and functional immunity between the governments of India and Italy and had continued to case diplomatic confusion ever since.

An independent United Nations court is involved in resolving the conflict of jurisdiction and held that detention of the ‘Italian Marines’ by India without charge is a serious breach of their human rights.The complaint was filed by the owner of the fishing boat against the two marines. The two unarmed fishermen from Kerala were killed in the same fishing boat, St Anthony when the marines opened fire at them.

The Indian court held that the two marines (Salvatore Girone and Massimiliano Latorre), had violated international law which resulted in Italy breaching India’s freedom of navigation, under the United Nations Convention on the Law of the Sea. The tribunal noted that compensation must be provided to India for the loss of life, physical and moral damage suffered by the members of the crew in the Indian shipping vessel on which the two Italian marines fired.

The Permanent Court of Arbitration, which was constituted under the UN Convention on the Law of the sea, acknowledged that the two Italian marines were in a mission on behalf of the Italian Government and thus they should be brought back to Italy and the process should be continued there. But the court also, on May 21st, this year criticized the action on the part of the Italian marines and validated the conduct of the Indian Authorities. The Arbitral tribunal, later, by the ratio of 3:2 majority said that the marines are entitled to immunity and India should no longer exercise any jurisdiction over them.

The Permanent Court of Arbitration at Hague in the Netherlands held that the two countries, India and Italy should come to compensation that Rome would pay to New Delhi. The center in the petition filed in the top court said that India is bound to abide by the decisions made by the Tribunal and that it is also a part of the UN Convention on the Law of the Sea.

The Court held that the Arbitral Tribunal would hold on to the jurisdiction if either of the two countries (India and Italy), or both, approach the Court to determine the amount of the compensation. While the tribunal has held in Italy’s favor the main submission, of jurisdiction, it has found merit in India’s counter-claim that the marines on board “Enrica Lexie” had violated the freedom of navigation rights under the United Nations Convention on the Law of the Sea (UNCLOS) by shooting at the fishing boat “St. Anthony” and should pay compensation not only to the victim’s families but also to the boat owner and crew members.

The spokesperson of the Ministry of External Affairs, Anurag Srivastava said that the Tribunal had observed both India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the marines. However, it has been found that immunities enjoyed by the marines as State officials operate as an exception to the jurisdiction of the courts of India and, hence, prelude them to judge the marines. India has considered the matter of the award and will be in touch with relevant entities for the same. Italy, in its case, had criticized the Indian government for detaining the marines without charging them and causing their health to deteriorate during the period of delay. The matter between India and Italy led to a long freeze in diplomatic relations between them which were reset only in 2016 when the External Affairs Minister Sushma Swaraj visited Rome for the canonization ceremony of Mother Teresa and met with her Italian counterpart.

  • Two Fishermen killed
  • Two Italian Marines detained
  • Jurisdiction

BY : Prina Sharma

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