Republic of Italy through The Ambassador and ors. V. Union of India, 2013 [SC 721]

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law of sea

This case is also famously referred to as The Enrica Lexie Case owing to the name of the Italian flagged vessel (MV Enrica Lexie) where the incident actually happened on 15th February 2012. On this day 2 marines named Salvatore Girone and Massimiliano Latorre on this vessel allegedly shot and killed two persons on a fishing vessel named St. Anthony. According to the marines, they had mistaken the fishermen for pirates. The primary question in front of Supreme Court was whether Union Of India possessed sufficient jurisdiction to try the two Italian marines. To find the answer to this question, The Supreme Court of India made an assumption that the incident took place approximately 20.5 Nautical Miles from India and hence occurred within India’s Exclusive Economic Zone and Contiguous Zone as defined in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976 (‘Maritime Zones Act 1976’).

A writ petition along with a special leave petition was made to the Supreme Court, the petitioners were Republic of Italy and others and the Respondents were The Union of India and the Bench consisted of Mr Altamas Kabir, Honorable Chief Justice of India at the time and Chelameshwar J. The Judgement was made on 18 January, 2013 by Altamas Kabir, CJI in 103 different points and agreed by Chelameshwar J. who supplemented 35 additional points. The various legislations involved and addressed within the judgement were-

Criminal Procedure Code, 1973 – Sections 154, 179, 183 and 188-A – Contiguous zone of India.

Sections 188-A, 154, 179 and 183 –  These deal with extension of CrPC and IPC to exclusive economic zone of India.

Sections 188-A, 154, 179 and 183 – Contiguous zone of India and exclusive economic zone of India.

Indian Penal Code, 1860 – Sections 2 and 4 – Offences committed beyond Indian territorial waters by persons not being Indian citizens.

International Law – UNCLOS,1982 – Articles 27, 33, 87(1)(a), 90.

Maritime Zones Act, 1976

Constitutional Law – Sovereignty trichotomy of 

1-complete sovereignty exercised over territorial waters. 

2- rights of sovereignty exercised over contiguous zone of India. 

3- sovereign rights exercised over exclusive economic zone of India.

According to the Indian Judgement, The Italian Marines were subject to jurisdiction of India owing to the fact that the crime was committed on Indian Territory, however, The Republic of Italy wanted to try the marines due to the fact that they both were Italian and also that they were servicemen. There seems to be little warrant for stating that in international law, a coastal State is empowered under article 33 of Nations Convention On the Law Of the Sea (UNCLOS) to exercise the rights of sovereignty in the contiguous zone in the manner envisaged. The treaty provision provides that, ‘the coastal state may exercise the control necessary to prevent or punish infringements of customs, fiscals, immigration or sanitary laws and regulations in the territorial sea or territory’. There is a definite scope for debate on what constitutes such ‘control’ but the basis for concluding that the State enjoys rights of sovereignty is quite difficult to uncover. In this case, where the Supreme Court was trying the Italian marines, Italy wanted the jurisdiction to try their men and wanted India to return them back and end the criminal proceedings against them, however India did not do that immediately, Latorre was released from the custody of Indian authorities in 2014 and Girone was released in 2016.

This issue became a huge deal and media started to refer to this as Italy vs. India and hence, before things escalated for the worse, this issue had to be resolved and to resolve such an issue between two countries Permanent Court of Arbitration at Hague, Netherlands came into play. The Permanent Court of Arbitration was constituded under United Nations Convention On the Law Of the Sea (UNCLOS) and at the time, the Tribunal said that India and Italy must reach an agreement. India and Italy went to The Permanent Court of Arbitration in 2015. 

The Permanent Court of Arbitration passed the judgment on 2nd July 2020 and said that the two marines Salvatore Girone and Massimiliano Latorre had violated International Law and as a result, Italy had breached India’s freedom of navigation under UNCLOS. The court stated that compensation must be paid to India for loss of life, material and moral harm suffered by the Captain and the Crew of the Indian Shipping vessel. This compensation was to be paid by Rome to New Delhi. However, the tribunal also declared that the marines were entitled to immunity and India was not allowed to exercise it’s jurisdiction over them. The court also held that Italy could not claim damages from India on account of retention of the two marines and that India had to end the criminal proceedings against the marines since Italy had promised to try them.

This case brought about a problematic relationship between contiguous zones and EEZ’s and the application of International Law (UNCLOS). In structural terms, the application of high seas norms, including freedom of navigation in the contiguous zone is mediated through the EEZ. Thus, in the EEZ, Article 58(2) of the UNCLOS provides for the articles 88 to 115 to apply in so far as they are not incompatible with this part on the EEZ. However, pursuant to article 55, the EEZ begins immediately after the territorial sea. This is recognized in the Court as the basis for applying laws, but the limits of these provisions are not recognized. Thus, the statement that the exclusive economic zone continues to be part of the high seas over which sovereignty cannot be exercised by any nation is correct, but the Court does not go far enough to recognize that this also applies to the contiguous zone. This case was an example of tension and a huge confusion between the claims of a Coastal state and norms of the high seas beyond the territorial sea.

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