Enrica Lexie : The Backgrounder on Italian Marine case

On 13th January 2016, the Supreme Court of India has allowed one of the two Italian marines accused in the fisherman killing case off Kerala coast in 2012 to come back to India by April 30. Earlier, the court had asked him to come back by January 15. The court extension grant has come at a time when there are reports that Italy could be planning to not to send him back to India to face the trial in India. The reports also points that Italy would try to get the other marine accused in the incident out of India. Presently, he is living in the Italian Embassy in New Delhi. The court also asked the Indian government to submit the status of proceedings at the International Tribunal for the Law of the Sea (ITLOS) on the matter by April 13.

The Enrica Lexie incident has become a thorn in relations between India and Italy. The incident took place four years back and it seems to be that the case may not come to an end in near future. India needs to consider whether continuing with the case would be worthwhile to India.

What is the Enrica Lexie incident?

On 15 February 2012, two Italian marines on board the MV Enrica Lexie, a private oil tanker, opened fire on a fishing boat off the Kerala coast killing two fishermen. The incident took place just outside Indian territorial waters at a distance of 20.5 nautical miles off Kerala coast. Soon after the incident, India arrested the two marines on murder charges.

According to the international law, up to 12 nautical miles comes under a nation’s territorial waters, where the normal jurisdiction of the country is applicable. A further 12 miles is the contiguous zone. And as per the UN Convention on the Law of The Sea, a total of 200 miles from the territorial waters is the exclusive economic zone (EEZ) of a country.

What is the dispute?

Italy challenged the arrest before Kerala High Court saying that India has no jurisdiction. Italy also argued that the accused were the naval marines and could not be tried in India. Italy has cited Article 97 of the United Nations Convention on the Law of the Sea (UNCLOS): “In the event of a collision or any other incident of navigation concerning a ship on the high seas”, only the flag state of that ship can launch penal proceedings.

The matter was taken up by the Supreme Court. The Supreme Court ruled that as per the Indian government notification issued in pursuant of the Convention on the Law of the Sea, India has jurisdiction over the entire 200 mile Exclusive Economic Zone, and thus the case can be triable in India. The court also held that only Indian government not the Kerala government can exercise the jurisdiction. The court directed the setting up of a special court in Delhi to try the case.The special court was set up, and hearings were to begin on July 31, 2013. However, the Supreme Court has allowed one of the accused to go to Italy for treatment for four months. The court has repeatedly extended his stay in Italy.

How the issue went to international tribunal?

Left with no other option, the Italy government approached the international forum to look into the matter. A case was filed for arbitration by the Italy before the International Tribunal for the Law of the Sea (ITLOS) under Annex VII of UNCLOS. At the tribunal, Italy contended that the India cannot try the Italian marines and they should be allowed to go out of India and let both men to stay in Italy until the end of the Tribunal’s proceedings.India not just opposed the Italy’s contention but also questioned the jurisdiction of the international tribunal to try the case. However, the tribunal had rejected India’s argument.

What was the diplomatic dispute between India and Italy?

In February, 2013, the Supreme Court of India granted permission to the Italy marines to visit Italy to vote in elections. In March, however, Italy decided not to send them back to India. The court, which had given permission to marines to leave India against the guarantee from Italian ambassador, had restrained the Italian ambassador from leaving India. But the Italy claimed diplomatic immunity under the Vienna Convention. The whole issue triggered a crisis situation between India and Italy. Later, Italy agreed to send the marines back to India.

What did ITLOS decide?

In August 2015, ITLOS asked both countries to stop all the current proceedings and not to start any fresh proceedings. The Supreme Court had stayed all proceedings of the case. A 5-member arbitral tribunal was set up for the arbitration between the both countries in November 2015.

Should India reconsider its position?

Four years over, the trial in the case has not started. Even if marines are convicted in the case, they will have at least two opportunities of appeal. In place of fighting at an international forum, the two countries can agree on finding judicial closure in India. It will help in avoiding further deterioration of India-EU relations as well.