Respect for international law must hold sway

Bharat H Desai

Jawaharlal Nehru Chair & Professor of International Law, JNU

On July 2, the curtains were finally brought down by the Arbitration Tribunal on the Italian marines’ case that put India and Italy at loggerheads and went on for eight long years. The Hague-based Permanent Court of Arbitration (PCA) facilitated the working of the five-member Arbitration Tribunal that was triggered by Italy invoking Annex VII of the 1982 UN Convention on the Law of the Sea (UNCLOS).

The dispute arose between the parties as to which state is entitled to exercise jurisdiction over the incident of February 15, 2012, involving the Enrica Lexie, an oil tanker flying the Italian flag, and the killing of two Indian fishermen on board an Indian vessel named St Antony. India promptly moved to exercise criminal jurisdiction over the incident and over the two marines (Massimiliano Latorre and Salvatore Girone) from the Italian Navy. Italy contested this by invoking the interpretation or application of the UNCLOS as the incident took place about 20.5 nautical miles off the coast of India.

In a split verdict, the tribunal ruled that it has jurisdiction in the case. Hence, it proceeded to hold that “it has jurisdiction to deal with the question of the immunity of the marines”. As a corollary, the tribunal regarded the marines as agents of Italy. So, it upheld the Italian contention that “the marines are entitled to immunity in relation to the acts that they committed during the incident of February 15, 2012, and that India is precluded from exercising its jurisdiction over the marines.”

The tribunal rejected the Indian contention and held that “Italy has not violated India’s sovereign rights under Article 56 (Exclusive Economic Zone or EEZ) of the Convention.” It pertains to the right of the coastal state to exercise sovereign rights for exploring and exploiting natural resources such as the fisheries. As a consolation, the tribunal has conceded India’s counter-claim on the breach of ‘right to navigation’ in the high seas that entailed “injury to India’s non-material interests.” However, it refrained from fixing the quantum and left it to the parties “to consult with each other with a view to reaching agreement on the amount of compensation due to India.”

The Italian marines’ case has taken many twists and turns. It created a diplomatic row. While in Indian custody during the pendency of a criminal trial, the marines were allowed on two occasions to return to Italy: the first on Christmas Eve and the second when they wanted to cast vote in person. It was in the wake of the second visit that there was controversy over Italy’s bizarre note verbale to the Indian government that in view of the formal international dispute between the two states concerning the exercise of criminal jurisdiction in India’s ‘contiguous zone’, the marines will not return to India at the end of the judicial permission granted to them.

The primary issue that raised eyebrows and put in jeopardy bilateral relations was the blatant breach of faith as regards the solemn undertaking given to the Supreme Court of India by Italy, through its Ambassador Daniele Mancini that the duo would return and face trial in India. Still, the Italian government formally refused to send them back for murder trial. Such an ill-advised move on the part of the Italians stirred a hornets’ nest, causing a ruckus over the sanctity of an undertaking given to the Supreme Court, abuse of diplomatic immunity and the usual refusal of a country to allow trial of her citizens in another jurisdiction. The Supreme Court, in its order, did assert that the diplomat by virtue of being a petitioner in the case willingly and expressly surrendered his immunity.

The award given by the Arbitration Tribunal on July 2 is final and without appeal. The Italian strategy of taking the matter to international arbitration (Annex VII of UNCLOS) on June 26, 2015, seems to have worked as it placed the matter on the backburner for five years. The tribunal had five judges — Vladimir Golitsyn (president), Jin-Hyun Paik, Patrick L Robinson, Francesco Francioni and PS Rao (upon demise of PC Rao on October 11, 2018).

In a way, the award is a setback for India that consistently invoked domestic criminal trial for murder charges against the two Italian marines. Since the marines were considered as agents of Italy, now the tribunal has taken at face value the “commitment expressed by Italy during the proceedings to resume its criminal investigation into the events of February 15, 2012” and ruled that “India must take the necessary steps to cease to exercise its criminal jurisdiction over the marines, and that no other remedies are required.”

The only saving grace from the tribunal’s award is the unanimous finding that India’s counter-claims are admissible. This pertains to “interfering with the navigation of the St Antony” and, hence, Italy has been held responsible for a breach of the obligation for freedom of the high seas (Article 87.1) and the right of navigation (Article 90) of the UNCLOS. However, this breach has been termed as an “injury to India’s non-material interests.” As a corollary, the tribunal only proceeded to allow India “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 marines’ incident has brought to the fore the activities of armed ships of other countries entering India’s EEZ and causing trouble, including violation of sovereignty. India’s key argument has been turned down by the tribunal by stating that “Italy has not violated India’s sovereign rights under Article 56 of the Convention.”

It raises questions regarding the effective presentation of the Indian case before the Arbitration Tribunal. It is pertinent to ponder over the simmering question: how far do we take international law issues seriously in India?

It is high time we address this squarely as time and again we confront issues such as extradition of fugitives (several sitting in London), getting Indian nationals released from conviction on concocted charges in other countries (such as Kulbhushan Jadhav), making a legal basis for surgical strikes to counter cross-border terror ‘pin-pricks’, two arbitrations on the Kishenganga (Pakistan) and the Bay of Bengal (Bangladesh) and preserving the sanctity of the colonial-era boundary treaties (such as Treaty of Calcutta 1890, Treaty of Sugauli 1816 and Simla Convention of 1914 prescribing the McMahon Line).

As India aspires to sit at the global high table, a robust architecture and respect for international law must pervade all levels of decision-making. During a meeting with Prime Minister Modi, I urged him to speak the language of international law in his confabulations with heads of government and on other global forums. It is vital for the government machinery as well the university system to take international law seriously as India readies itself to occupy a place at the horse-shoe table of the UN Security Council in January 2021. 

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