The Permanent Court of Arbitration (PCA) in the Hague has upheld the conduct of the Indian authorities in the Enrica Lexie case in which two Italian marines were accused of killing two Indian fishermen in 2012, and said New Delhi is entitled to get compensation in the case but can’t prosecute the marines due to official immunity enjoyed by them. 

The international tribunal also held that the two marines violated the international law, and as a result Italy breached India’s freedom of navigation under the United Nations Convention on the Law of the Sea (UNCLOS), ministry of external affairs spokesperson Anurag Srivastava said.

What is the case about?

In February 2012, India accused two Italian marines, Salvatore Girone and Massimiliano Latorre, on board the MV Enrica Lexie — an Italian flagged oil tanker — of killing two Indian fishermen who were on a fishing vessel off Kerala coast.

The boat was returning from a fishing expedition while the Italian tanker was on its way to Egypt from South Asia.

The complaint against them was lodged by the owner of fishing boat ‘St. Antony’ in which the two Kerala fishermen were killed when the marines opened fire on them allegedly under the misconception that they were pirates.

Both marines were initially held in India, but Latorre was allowed to return to Italy in 2014 after suffering a stroke. On May 26, 2016, Girone was also granted bail and allowed by the Supreme Court to go to his country. 

How the case reached the international tribunal?

The incident led to diplomatic tension between the two countries. 

The issue of jurisdiction over the case became a big argument between the two countries. While India maintained that the incident happened in Indian waters and also the fishermen killed were Indian, and hence the case must be tried as per its laws, Italy claimed that the shooting took place outside Indian territorial waters and its marines were on-board the ship with the Italian flag. 

Italy initiated international proceedings in 2015, referring the row to the Netherlands-based tribunal and asking it to rule on where the men should be tried.

The Permanent Court of Arbitration in The Hague began hearing in the case in July last year. 

The Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) was the first permanent inter-governmental organisation to provide a forum for the resolution of international disputes through arbitration and other peaceful means.

The PCA was established by the Convention for the Pacific Settlement of International Disputes, concluded at The Hague in 1899 during the first Hague Peace Conference.

What is PCA’s purpose?

Although the PCA’s initial activity concerned principally the arbitration and other forms of dispute resolution, including fact-finding, conciliation, and mediation of interstate disputes, the Hague Conventions established a flexible institution. Over time, the PCA’s Contracting Parties have, in keeping with the changing dispute-resolution needs at the international level, interpreted the institution’s mandate to include disputes involving various combinations of States, State entities, international organisations, and private parties.

The organisational structure of PCA

The PCA has a three-part organisational structure.

The PCA Administrative Council is composed of the diplomatic representatives of the contracting powers accredited to The Hague, and of the minister of foreign affairs of The Netherlands, who act as president. The council oversees PCA’s policies and budgets. 

Members of the Court are potential arbitrators appointed by Contracting Parties. Each Contracting Party state is entitled to nominate up to four persons as members of the Court.

The International Bureau — PCA’s Secretariat — is headed by the Secretary-General. The primary function of the International Bureau is to provide administrative assistance in respect to arbitration, conciliation, mediation, fact-finding, expert determination, and other dispute resolution proceedings, such as mass claims tribunals.

Dispute resolution services of PCA

Arbitration: The PCA provides administrative support in international arbitrations involving various combinations of States, State entities, international organizations and private parties.

Mediation/conciliation: The PCA’s functions also include providing support in other forms of peaceful resolution of international disputes, including mediation, conciliation, and other forms of alternative dispute resolution (ADR). 

Fact-finding / Commissions of Inquiry: The PCA is available to provide administrative support in fact-finding / commissions of inquiry involving various combinations of states, state entities, international organizations and private parties.

What are the main highlights of the verdict?

The MEA said the tribunal decided that India is entitled to payment of compensation in connection with “loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of St. Antony”.  

“The tribunal upheld the conduct of the Indian authorities with respect to the incident under the provisions of the UNCLOS. It held that the actions of the Italian military officers and, consequently, Italy breached India’s freedom of navigation under UNCLOS Article 87(1)(a) and 90,” he said.

The MEA spokesperson also said the tribunal observed that India and Italy had “concurrent jurisdiction” over the incident and a valid legal basis to institute criminal proceedings against the marines. 

Srivastava said the tribunal rejected Italy’s claim to compensation for the detention of the marines. “However, it found that the immunities enjoyed by the marines as state officials operate as an exception to the jurisdiction of the Indian courts and, hence, preclude them to judge the marines,” he added.

United Nations Convention on the Law of the Sea

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which came into force on November 16, 1994, is an international treaty that provides a regulatory framework for the use of the world’s seas and oceans, to ensure the conservation and equitable usage of resources and the marine environment and to ensure the protection and preservation of the living resources of the sea. 

UNCLOS also addresses such other matters as sovereignty, rights of usage in maritime zones, and navigational rights. As many as 166 States are parties to UNCLOS.

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