IDF Report and Its All About JURISDICTION —It is clear now !
ITLOS ( International Tribunal of the Laws of Sea), handles UN Convention on Laws of the Seas disputes (UNCLOS 1982 and India is signatory). “Interim directions” by President President Judge Vladimir Golitsyn, arrived last week.
Interestingly, Asst Attorney General Harish Rawal in Supreme Court in 2013 admitted that India did not have jurisdiction but he was removed. Italy even requested the NDA Government to resolve the issue diplomatically. Italy went to ITLOS in 2015
PM Modi seems amiable and keen to settle and may have mentioned it to young PM RenzI of Italy in passing in DC as both PMs have not contradicted Christen Michel but MEA spokesman did say there was no official meeting. NDA is keen so that the invisible hand in AW-101 who collected the big loot, is traced by RM Pannikar as promised. Fingers crossed and better luck than Bofors, HDW, War Room leak Abhimanyu Verma case , Lt Cdr Shakaran, Lalit Modi and Mallya all evading return and on the run in UK ??
NDA Government has India’s clout to back it today and will be hailed as India’s savior ! India is rich, very rich and in olden days Mohamed Ghazni stole our wealth now our own Ghaznis ! Find them please, IDF pleads for our grandchildren. PM Modi has the will and time to do so.
Last week India’s Supreme court ruled Salvatore Girone was free to go home at least until Italy’s dispute with India over jurisdiction in the Italian Marine case was ruled by ITLOS. Defence Minister Roberta Pinotti embraced the uniformed Girone when he arrived at Rome’s Ciampino airport. He was also greeted by the Foreign Minister, the Navy’s Chief and relatives. (See Photo)
RECALLING THE DEATH OF TWO INDIAN FISHERMEN OFF QUILON ON www.indiadefenceforum.com posted two years ago.
On 15th Feb, 2012 (over four years ago) around 4 pm, Italian Armed Marine Guards, Latorre Massimiliano and Girone were on Italian Parliament approved Governmental and IMO permitted anti piracy duty on board Italian flagged tanker MV Enrica Lexie 21 miles off Quilon (by GPS), on an innocent Northerly passage to the Middle East in International waters (when intercepted after the killing of two Malyali fishermen Valentine Jalastine and Ajesh Binki whose families have been compensated with Blood Money and have dropped charges). News reached Quilon Police.
As per UNCLOS regulations, all seas beyond the territorial waters of 12 nautical miles (1 nm is 2000 yards equal to 1 degree and 360 degrees cover the world ) are “high seas”, under the jurisdiction of the Flag State of the ship applies in this case. Hence Enrica was in International waters, and Enrica was subject to the jurisdiction of Italy, but the Marines were edgy about Piracy, unaware ships keep clear of fishing boats in Indian waters as a custom, as they feel it is their right, as on our roads too.
Firearms were not allowed in merchantmen, but the rise of piracy off Malacca Straits, off Somalia and Yemen and West Coast of Africa and near India, UN’s shipping arm the International Maritime Organisation (IMO) approved privately contracted security personnel to embark ships in specified High Risk Piracy areas to combat piracy vide the circular No MSC.1/Circ.1405/1406. India never passed any rules.
The explanation in UNCLOS 1982 Art 97, states the seas beyond territorial for jurisdiction over the navigational and collision incidents lies with the ‘Flag State’(in this case Italy) and reads “causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment articles, 94(7), 97 and 58 of UNCLOS. The case to IDF mind ultimately hinges on Jurisdiction –India’s which is secondary or Italian which is primary for trial. If Italy loses the case in India with heavy punishment on the two marines, then it could go to the ICJ , and Lawyer Salve in arguments for Italy warned in Supreme Court before Justice Kabir, argued that India would lose in ICJ. (IS IT LOSING IN ITLOS ?)
The Coast Guard with its updated alert Coastal security system of radars and cameras at Cochin was alerted from Quilon Police of death of two Indian fishermen killed by a ship and intercepted Enrica and ordered her to Cochin as she was heading North. Enrica anchored off Cochin, was arrested brought in and the ITALIAN MARINE DRAMA by people who do not know UNCLOS 1982 but only CrPc slapped murder charges and RM Antony saw elections coming up and it became an MOD issue to please Kerala and Antony.
Coast Guard washed it hands after MOD took over and RM AK Antony with elections in Kerala appeased public pressure to punish the Marines under CrPc/IPC. The ruling by Supreme Court over ruled and is appended.
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(s). 135 OF 2012
REPUBLIC OF ITALY THR. AMBASSADOR & ORS. Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
WITH
SLP(C) NO. 20370 of 2012
Date: 18/01/2013 These Petitions were called on for JUDGMENT today.
For Petitioner(s) Mr. Harish N.Salve, Sr. Adv.
Mr. Sohail Dutt, Sr. Adv.
Mr. Diljit Titus, Adv.
Mr. Jagjit Singh Chhabra, AOR
Mr. Jayesh Gaurav, Adv.
Mr. Vibhav Sharma, Adv.
For Respondent(s) Ms. Indira Jai Sing, ASG.
Mr. D.S. Mahra, AOR
Mr. B. Krishna Prasad, AOR
Mr. V.Giri, Sr. Adv.
Mr. Ramesh Babu M.R., AOR
Hon’ble the Chief Justice and Hon’ble Mr. Justice J.
Chelameswar pronounced their separate but concurring judgments
of the Bench comprised of Their Lordships.
Pursuant to the decision rendered by us in Writ
Petition(C)No.135 of 2012 and SLP(C) NO. 20370 of 2012, certain
consequential directions are required to be made, since the
petitioner Nos.2 and 3 had been granted bail by the Kerala High
Court.
Since we have held that the State of Kerala as a Unit of the
Federal Union does not have jurisdiction to try the matter, we
are of the view that till such time as the Special Court is
constituted in terms of our judgments, the said petitioners
should be removed to Delhi and be kept on the same terms and
conditions of bail, as was granted by the High Court, except for
the following changes:-
1. The orders passed by the Kerala High Court
restricting the movement of the said petitioners is
lifted, but the same conditions will stand
reinstated, as and when the said petitioners come
to Delhi and they shall not leave the precints of
Delhi without the leave of the Court.
2. Instead of reporting to the Police Station
at City Commissioner at Kochi, they will now report
to the Station House Officer of the Chanakaya Puri
Police Station, New Delhi, once a week, subject to
further relaxation, as may be granted.
3. Once the said petitioners have moved to
Delhi, they shall upon the request of Italian
Embassy in Delhi, remain under their control. The
Italian Embassy, in Delhi, also agrees to be
responsible for the movements of the petitioners
and to ensure that they report to the trial court,
as and when called upon to do so.
4. Since their passports had been surrendered
to the trial court in Kollam, the same is to be
transferred by the said court to the Home Ministry,
immediately upon receipt of a copy of this
judgment”.
CONCLUSION
Since 10TH August, 2015 India and Italy completed submissions in ITLOS in the Italian Marines killing case which has dragged on for four unforgiveable years in India’s dilatory Judiciary and by India’s investigative Intelligence agency NIA, set up for terrorism. NIA was tasked to frame charges, never done nor a Special Court made. French lawyer Alain Pellet, R Bundy, Additional Solicitor General P L Narasimha, and MEA/Home Ministry and a team represented India at great cost. Ministry of Earth Sciences now handles UNCLOS issues. MEA Legal and Treaties Wing Crafted a retrospective law like for Vodapone Tax now challenged in arbitration, to punish the Marines but Parliament never passed it. Was Navy or Coast Guard Involved ? Please comment.
THE CASE NOW WILL GET FINAL RULING AND INDIA MAY LOSE JURISDICTION—IDF PREDICTED AND WILL APOLOGISE IF WRONG.
THE LESSON IS BRING NAVY OR COAST GUARD INTO UNLOS NEGOTIATIONS LIKE RADM OP SHARMA DID FOR YEARS…MEA MIN OF EARTH SCIENCES DO NOT GO TO SEA …….THEY ARE POLITICAL. SET UP THE MARITIME ADMINISTARTION AUTHORITY GIVEN IN NDA MANIFESTO WITH A COMPETENT FORMER NAVY AS HEAD OR DEPUTY LIKE INDIA HAS A DEPUTY NSA. MILITARY AND CIVIL AUTHORITY MUST WORK HAND IN HAND. AMBASSADOR TP SREENIVASAN FROM KERALA THINK TANK RECOMMENDED IN TOI SOME IAS AND IFS MUST SPECIALISE IN MARITIME AFFAIRS. IT’S THE ERA OF MARITIMIZATION.