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Italian Marines Case and International Law

Italian Marines Case & International Law

Context

The permanent court of arbitration at Hague in ‘Enrica Lexie case’ has given a judgment which is accepted by the Indian govt. The judgment mentioned it will be Italy who will try the Italian marines involved and India can seek the compensation for two fishermen killed off the coast of Kerala.

Background

  • Two Italian marines had opened fire on an Indian fishing boat in 2012 killing two crew members.
  • The case had become a major bone of contention between the two countries with India insisting that it could try them as the incident occurred in its territorial waters.
  • Italy contested this on the ground that the ship flew an Italian flag and hence the crew would be tried under the Italian law.

Summary of the Debate

Key legal aspects of the case

  • Undisputed facts: In 2012 two Indian fishermen on an Indian fishing vessel was shot dead by two Italian marines on an Italian oil tanker.
    • The incident occurred around 20 nautical miles off the coast of Kerala.
  • Italian Narrative: Italy claimed that their oil tanker was prone to pirate attacks and the Italian marines were suspicious of the Indian fishing vessel being pirates. They were asked by marines to change their course but they didn’t listen and therefore they had no option.
    • The Italian ship was arrested illegally and they were not supposed to be brought back forcefully to Indian land and arrested.
    • Since the ship flew an Italian flag hence the crew would be tried under their law. Italy claimed immunity for the marines over this.
  • Indian Narrative: Indian fishermen were fully within their rights to be fishing in the Zone of its Indian water territorial.
    • There was no threat of piracy in the area. It was the recklessness of Italian marines to shot dead Indian fishermen.
    • The ship involved was private ship having private marine guard so diplomatic immunity clause shouldn't be raised by them.

Three legal Principles that this case was being fought over

  • Freedom of navigation on the seas: There is a freedom of navigation on the seas.
  • The territorial jurisdiction of the seas: Deals with ‘Which part of the seas belongs to which nation’s territorial jurisdiction and what rights that particular nation has on that. Which country has the rights of arrest and investigating the particular issues.’
  • Diplomatic Immunity: To develop a smooth international relation between states there is a concept of diplomatic immunity. Under this, foreign officials are immune from being tried by the domestic law of the country that they are in.

Court’s verdict

  • In Indian favors, the court has unanimously held that there were innocent killings of life and the shooting was absolutely unwarranted.
  • India is entitled to compensation and its right of freedom of navigation has been violated by Italy.

Italy got the right to try its Marines

  • Diplomatic immunity was accorded to these Italian marines because they were in official duty protecting the vessel under the Italian flag.
  • And because they have immunity to be tried under Italian law, therefore, Italy gets jurisdiction to try marines.

Impact on Indian-Italian Bilateral Relations

  • There was a big diplomatic tussle between both the two nations when India demanded that the Indian court can try the marines because it comes under Indian jurisdiction and Italy claimed immunity.
  • The issue got trapped in nationalism prestige on both sides. The issue was politicized for political mileage in Italy more than India.
  • In Italy, the Indian ambassador was treated as somebody was not to be met. He was ignored there in many occasions.
  • The case damaged ties at bilateral as well as at the multilateral level. Federica Mogherini (Italian), who served as High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the European Commission tried to influence the ties between India and the European Union.

Impact on India-European Union Relations

  • EU is an important multilateral platform for India and Italy is an important part of the European Union (EU).
  • In the beginning of the incident, India mismanaged the case. In India, the case was given to the National Investigation Agency (NIA) which gave the death penalty to marines. The EU which has done away with capital punishment swung into action and get sympathy towards the Italian marines.
  • Federica Mogherini plays an active role in mobilizing the member state of the EU against India.

Current Status of ties between India and Italy

  • Italy is among India's top 5 trading partners in the EU and the 12th largest investor in India. The volume of trade between India and Italy is hovering around 8.95 billion Euros per year.
  • Principal items of Indian exports to Italy are ready-made garments, leather, iron ore, motor vehicles, textiles, chemicals, gems & jewelry.
  • The main items of import from Italy are general and special-purpose machinery, machine tools, metallurgical products, and engineering items.
  • The Indian community in Italy is the second-largest community of Indians in Europe after the UK. As per the latest Italian official estimates, more than 1, 60,000 Indian nationals are resident in Italy.

Way Forward

  • We must ensure that proper compensation is being given to the victims because the life of two fishermen is no less than the life of two marines there.
  • The normal ties must go ahead and more efforts should be done to increase the economic ties between the two nations.

Maritime Zones set by UNCLOS

Internal Waters: It include littoral areas such as ports, rivers, inlets and other marine spaces landward of the baseline (low-water line) where the port state has jurisdiction to enforce domestic regulations.

Territorial Sea: Here, a coastal state has unlimited jurisdiction over all (including foreign) activities unless restrictions are imposed by law. All coastal states have the right to a territorial sea extending 12 nautical miles from the baseline.

Contiguous Zone: It is an intermediary zone between the territorial sea and the high seas extending enforcement jurisdiction of the coastal state to a maximum of 24 nautical miles from baselines for the purposes of preventing or punishing violations of customs, fiscal, immigration or sanitary (and thus residual national security) legislation.

Exclusive Economic Zone (EEZ): It is another intermediary zone, lying between the territorial sea (12 nautical miles) and the high seas to the maximum extent of 200 nautical miles. In this zone the coastal state retains exclusive sovereignty over exploring, exploiting, and conserving all-natural resources.

High Seas: This lie beyond 200 nautical miles from shore. These are to be open and freely available to everyone, governed by the principle of equal rights for all.

 

Main points made by Guests

1. Jitendra Nath Misra, Former Ambassador

  • There was a big diplomatic tussle between both the two nations.
  • In Italy, the Indian ambassador was treated as somebody was not to be met.
  • The normal ties must go-ahead

2. Sheetal Sharma, Assistant Professor, Centre for European Studies, JNU 

  • The volume of trade between India and Italy is hovering around 8.95 billion Euros per year.
  • We must ensure that proper compensation is being given to the victims.

3. Abishek Jabaraj, Supreme Court Advocate & International Law Expert     

  • Three legal Principles that this case was being fought over: Freedom of navigation on the seas, Territorial jurisdiction of the seas, Diplomatic Immunity.
  • Key legal issues of the case including Italian narrative and Indian perspective.

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