India cannot exercise jurisdiction to try Italian marines, entitled to compensation from Italy: Permanent Court of Arbitration

Massimiliano Latorre and Salvatore Girone

In a setback to India, the Permanent Court of Arbitration (PCA) at The Hague has decided that in a dispute between India and Italy, the former is precluded from exercising its jurisdiction to try two Italian marines.

The decision pertains to an incident of February 2012 when two Italian marines Massimiliano Latorre and Salvatore Girone fired shots while on-board an Italian vessel, Enrica Lexie. These shots killed two Indian fishermen who were on board an Indian vessel, St. Anthony.

The two marines were released from India and sent to Italy through orders passed by the Supreme Court. In the meantime, the dispute between the two countries as regards which country will try the two marines was before the PCA.

Upholding its jurisdiction to hear and decide the dispute between the countries, the PCA went on to rule that Italy would have jurisdiction to decide on the question of immunity for the marines.

Thus, the tribunal held that India is precluded from exercising its jurisdiction.“DECIDES, by three votes to two, in respect of Italy’s Submission (2)(f), that the Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines.”Permanent Court of Arbitration

Taking note of Italy’s commitment to resume its criminal investigation into the events of 15 February 2012, it was also held by three votes to two that India must take necessary steps to cease to exercise its criminal jurisdiction over the marines.

The PCA also ruled that while India’s conduct has not been in breach of the United Nations Convention on the Law of the Sea (UNCLOS), Italy breached provisions of the Convention by intercepting the navigation of India’s vessel “St. Anthony”, on which two Indian fishermen were shot dead by the accused marines.

Italy is, as a result, liable to pay compensation to India, the PCA ruled. It held:

“…that as a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the “St. Antony”) and moral harm suffered by the captain and other crew members of the “St. Antony”, which by its nature cannot be made good through restitution…”

The two nations are required to hold consultations in order to arrive at the amount of compensation to be paid to India.

The five-member tribunal consisted of President, Judge Vladimir Golitsyn, Judges Jin-Hyun Paik and Patrick Robinson, Professor Francesco Francioni, andDr. Pemmaraju Sreenivasa Rao.

Read Extracts of the Award:

Published by Sneha Vishwakarma

Advocate, Bombay High court.

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