Enrica Lexie - Italian Marines Case

Key Takeaways

• The Italian marines had fired on a fishing vessel of India leading to the death of two fishermen.
• The PCA had ruled in favour of India granting it compensation of 10 lakhs.
• The disputes relating to the South China Sea and other cases related to the freedom of navigation have been discussed.
• The UNCLOS establishment and other conventions for maintaining the peace with respect to oceans and sea have been dealt with in brief.

Introduction

India is a country that is filled with people close to nature and also with occupations that keep them rooted to their lands. A majority of the people earn their livelihood from farming, fishing, etc. But the risks that are faced by these people are also high. Any kind of calamities are likely to affect their earnings but at the same time for the fishermen, their lives are at stake even when they stay in their country’s territory.

On 15 February 2012, a fishing boat named ‘St Antony’ came across an Italian tanker ‘Enrica Lexie’ at around 20.5 nautical miles from the Kerala Coastline. Two marine officers on the tanker mistook the waters to be international waters and the shipping vessel to be a pirate boat and opened fire. Two fishermen on the boat got hit and died. This led to the conflict between India and Italy that was brought before the Permanent Court of Arbitration.

Permanent Court of Arbitration

After hearing the parties, the Permanent Court of Arbitration at The Hague ruled that Italy has to compensate India due to the action of the marines. India’s freedom of navigation under the United Nations Convention on the Law of the Sea has been violated when the marines fired at the boat. Italy has to compensate India for the “loss of life, material and moral harm done to the captain and the crew of the Indian shipping vessel”.

The PCA also stated that the marines were protected under the sovereign immunity and India does not have any jurisdiction on them. Italy promised trial of both the marines in its Courts and thus India was to end the proceedings initiated against the marines in India.

The Solicitor General requested the Supreme Court to quash the proceedings against the two marines as ruled by the international Court, to which, the Apex Court replied that the proceedings will only be quashed after the compensation of 10 Crores is paid by the European country.

The Kerala government had compensated the families of both the fishermen with $ Crores each and 2 Crores to the owner of the boat. Italy had also given 2.17 Crores to the families of the deceased as compensation.

International Law of the Sea

In the first ever UN conference on law related to sea, four multilateral conventions were adopted.
a. Convention on the Territorial Sea and Contiguous Zone
b. Convention on High Seas
c. Convention on Fishing and Conservation of Living Resources
d. Convention on the Continental Shelf

These conventions were superseded by the UNCLOS but they continue to exist covering various aspects of the law since UNCLOS has a very general application.

The United Nations Convention for the Law of the Sea is a treaty that lays down the rules and guidelines for using the world’s seas and oceans. The main aim is to protect the sea creatures and conserving the marine resources from being exploited by the countries. It prescribes for no boundary for marine business on the international waters. It grants territorial waters to a country that gives rights over the land and air space above the waters.

The International Tribunal for the Law of the Sea came into force in 1994 but was established in 1996 under the mandate of the Third UNCLOS. It consists of members from good reputation of fairness and integrity and having recognized competence in the field of law of sea.

There are seven maritime areas under which the States have the right to exercise their jurisdiction, i.e., base line, inland waters, territorial seas, contiguous zone, exclusive economic zone, high seas and continental shelf.

The dispute between India and Italy is not the only case that has arisen. There have been numerous cases that deal with conflicts between countries with respect to the territorial waters.

South China Sea Dispute

Similar has been the case of South China Sea dispute which relates to the Paracel and Spratly islands which has been claimed by almost six countries as their territory. This led to disturbances between the countries and by 2016 the island had been subjected to military actions with mid-ocean airfields. The Hague rejected part of China’s claims but China did not accept the decision. The evidence provided by China is disputable and Japan claims sovereignty on the basis of it being occupied by them during the Second World War. The dispute is not yet settled and the intervention by numerous countries claiming sovereignty on the islands is adding to the issue for solution.

United Kingdom of Great Britain and Northern Ireland v. Albania

The Corfu Channel had been cleared of mines and the in 1946 the British Warships while passing through the channel suffered damage. The UK accused Albania of laying the mines again or allowing some third party to lay the mines. This dispute was solved by three judgements. The first dealt with the question of jurisdiction and held that the Government had voluntarily accepted the jurisdiction of the Court. The Second judgement dealt with the merits of the dispute between the countries and held that Albania would be responsible for the explosions causing damage to the warships which had taken place in the Albanian waters. The Court was of the opinion that the mines even if not laid down by the government could not have been done without its permission. The Court did not accept the contention of Albania that the warships violated the sovereignty of the country and held that the right to innocent passage was used by the UK but the act of mine sweeping done by UK after the explosion is a violation of the sovereignty of the Country. The third judgement dealt with the compensation to be given to the UK taking into consideration all the facts and circumstances of the case and granted 844,000 Euros as compensation.

Juno Trader Case

The Juno trader is also one case which deals with dispute between two countries. The case is a dispute between the Saint Vincent and the Grenadines v. Guinea-Bissau where the Juno Trader cargo carrying fish for delivery to the Ghana coast crossed the EEZ of Guinea-Bissau which had not been informed of the cargo. The navy vessel arrested the cargo. The cargo and the master of the Master were fined for the violation of the provisions of fishing. An application was filed before the UNCLOS requesting declaration of jurisdiction to hear the application and violation of the provision of the UNCLOS and release of the cargo and the members. The Tribunal found that the Guinea-Bissau had violated the provisions under UNCLOS by not releasing the cargo upon being provided with reasonable bonds and security and ordered the release of the cargo and the vessel without any conditions.

Conclusion

The world is under constant battle over land, air and water. The countries have been competing for decades if not centuries to claim supremacy over each other. The United Nations is an organization working for the maintenance of peace in the world but the constant disputes and the non-binding nature of decisions of the Tribunals and Courts is making it very difficult.

The case between India and Italy has been under dispute for years now and yet the compensation has not been provided to India. This is leading to delayed procedures and excessive disputes between countries. The power to stop these issues lies with the countries and not with the UNO.