The Supreme Court on April 9 directed the Centre to deposit in its account the compensation given by Italy for the kin of two Indian fishermen killed by Italian marines off the Kerala coast in February 2012.

A bench of Chief Justice S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian said the top court will disburse the compensation to the fishermen’s kin.

It said that one week after the compensation is deposited in its account, the top court will hear the Centre’s plea for closure of the case against Italian Marines.

Enrica Lexie case

• 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 Kerala fishermen who were on a fishing vessel in India’s Exclusive Economic Zone (EEZ).

• The complaint against the marines was lodged by Freddy, the owner of fishing boat ‘St Antony’ in which two Kerala fishermen were killed on February 15, 2012 when marines opened fire on them allegedly under the misconception that they were pirates.

• Latorre, who had suffered a brain stroke on August 31, 2014, was granted bail and allowed by the apex court on September 12, 2014 to go to Italy for four months and after that, extensions for his stay have been granted to him. In Italy, Latorre underwent a heart surgery after which the top court granted him extension of his stay in his native country. On September 28, 2016, the apex court had allowed Latorre to remain in his country till the international arbitral tribunal decided the jurisdictional issue.

• Girone was also granted bail on May 26, 2016 with certain conditions and allowed by the top court to go to his country till the jurisdictional issue was decided.

• In June 2015, the Arbitral Tribunal was constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) on the request of Italy.

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 2019.

• On July 2, 2020, the Arbitral Tribunal issued its award.

• On July 3, 2020, the Centre moved the Supreme Court seeking closure of judicial proceedings against two Italian marines saying that it has accepted the ruling of the Permanent Court of Arbitration (PCA) at the Hague which held that India was entitled to get compensation in the case but can’t prosecute the marines due to official immunity enjoyed by them.

• 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. 

• On August 7, 2020, the Supreme Court made it clear to the Centre that it would not pass any order on the plea seeking closure of cases against the Italian marines without hearing the victims’ families, who should be given adequate compensation.

• The Centre told the top court that Italy has assured the Indian government that it would prosecute the marines there as per law and that maximum compensation will be ensured to the victims’ family members.

The United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty, is an international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982.

The convention introduced a number of provisions. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes.

The convention set the limit of various areas, measured from a carefully defined baseline. Normally, a sea baseline follows the low-water line, but when the coastline is deeply indented, has fringing islands or is highly unstable, straight baselines may be used.

The areas are as follows:

Internal waters

• Covers all water and waterways on the landward side of the baseline. The coastal state is free to set laws, regulate use, and use any resource. 

• Foreign vessels have no right of passage within internal waters. A vessel in the high seas assumes jurisdiction under the internal laws of its flag State.

Territorial waters

• Out to 12 nautical miles (22 kilometres) from the baseline, the coastal state is free to set laws, regulate use, and use any resource. 

• Vessels were given the right of innocent passage through any territorial waters, with strategic straits allowing the passage of military craft as transit passage, in that naval vessels are allowed to maintain postures that would be illegal in territorial waters. 

• “Innocent passage” is defined by the convention as passing through waters in an expeditious and continuous manner, which is not “prejudicial to the peace, good order or the security” of the coastal state. 

• Fishing, polluting, weapons practice, and spying are not “innocent”, and submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if doing so is essential for the protection of their security.

Archipelagic waters

• The convention set the definition of “Archipelagic States” in Part IV, which also defines how the state can draw its territorial borders. 

• A baseline is drawn between the outermost points of the outermost islands, subject to these points being sufficiently close to one another. All waters inside this baseline are designated “archipelagic waters”. The state has sovereignty over these waters (like internal waters), but is subject to existing rights including traditional fishing rights of immediately adjacent states. 

• Foreign vessels have the right of innocent passage through archipelagic waters (like territorial waters).

Contiguous zone

• Beyond the 12-nautical-mile (22 km) limit, there is a further 12 nautical miles (22 km) from the territorial sea baseline limit, the contiguous zone. 

• Here, a state can continue to enforce laws in four specific areas (customs, taxation, immigration, and pollution) if the infringement started or is about to occur within the state’s territory or territorial waters. 

Exclusive economic zones (EEZs)

• These extend 200 nautical miles (370 km) from the baseline. Within this area, the coastal nation has sole exploitation rights over all natural resources. In casual use, the term may include the territorial sea and even the continental shelf. 

• The EEZs were introduced to halt the increasingly heated clashes over fishing rights, although oil was also becoming important. 

Continental shelf

• The continental shelf is defined as the natural prolongation of the land territory to the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state's baseline, whichever is greater. 

• A state’s continental shelf may exceed 200 nautical miles (370 km) until the natural prolongation ends. However, it may never exceed 350 nautical miles (650 km) from the baseline; nor may it exceed 100 nautical miles (190 km) beyond the 2,500 metres isobath. Coastal states have the right to harvest mineral and non-living material in the subsoil of its continental shelf, to the exclusion of others. 

• Coastal states also have exclusive control over living resources “attached” to the continental shelf, but not to creatures living in the water column beyond the exclusive economic zone.

• The area outside of these areas is referred to as the “high seas” or simply “the Area”.

• Aside from its provisions defining ocean boundaries, the convention establishes general obligations for safeguarding the marine environment and protecting freedom of scientific research on the high seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep seabed areas beyond national jurisdiction, through an International Seabed Authority and the common heritage of mankind principle.

• Landlocked states are given a right of access to and from the sea, without taxation of traffic through transit states.

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