What a long drawn out drama the Enrica Lexie Italian Marines case (2012-16) became, now forgotten as Sine Die like all sea blindness matters in India and this time led by Ministry of External Affairs (MEA), it is evident. To save face ? or lacked courage to take a legal decision IDF debates !
(Definition of sine die. without any future date being designated as for resumption: indefinitely—- अनिश्चित काल के लिए-anishchit kaal ke lie) .
And how expensive and damaging it was to India’s reputation as a budding Maritime Power as it concerned UNCLOS 1982 that India is a signatory to, which upholds International Law unlike China which shows teeth.
After much ado, political and legal, it looks India has given in to into UNCLOS International Waters Jurisdiction where the two Malyali fishermen were shot dead by trigger happy Italian Marines Latorre Massimiliano and Salvatore Girone off Quilon in high seas—And no further legal action is contemplated ? Has legal common sense prevailed ?
Another case of KACHITIVU International border VERDICT in High and Supreme Courts between India and SrI Lanka are doing rounds like ‘Shuttle Cocks’ for years as politics of Tamil Nadu played a role in dispensation of fair maritime Law, or let it go to International Court of Justice, which Bangla Desh with China’s help did and gained sea space over India, as India did not agree to mutual agreement allowed under UNCLOS. This is best left to current Leadership, as it frays Sri Lanka relations and Navy and Coast Guard are told to act with kid gloves by Tamil Nadu.
The other Sir Creek boundary issue is settled in files and meetings and President Gen Musharraf stated it could be settled in minutes as both Chief Hydrographers have agreed to Legal Median Lines and Outer Sea boundary rules of the UNCLOS 1982 but Kashmir and terror issues and, “ No Talks with Pakistan rule it out”, so Indian fishermen suffer ! And will continue.
Pakistan has settled for the award of a large Extended EEZ by UNCLOS as India’s award is pending but this is with Ministries of Ocean Sciences and MEA Legal mandarins, and must be doing their bit. Yet Indus water talks are scheduled with Pakistan.
This then, is an IDF analysis and commentary of the deficient and insecure state of dispensation of Maritime Law in MEA (Legal and Treaties Division), the Ministry of Earth Sciences which is in Charge the Oceans, and the Judiciary which was unable to decide the ‘jurisdiction’, the crux, in the Italian Marine case of killing two Indian Fishermen 21.2 nm from India’s coast. It was finally stalled at Supreme Court’s Chief Justice Kapadia’s level, who ordered a Special court. The case would have finally again landed up in the Supreme Court !!! Few realise that gives the final verdict.
On 19th Feb 2012 ( 4 pm) Italian MV Enrica Alexie off Quilon headed to the North to avoid pirates, had Italy’s Parliament approved Armed Italian Marines as guards on board. Arms by guards was legally allowed by IMO on merchantmen.
Enrica Lexie saw Kerala fishing boat St Anthony, approaching. The boat netting, did not heed warning shots. Trigger happy Marines apprehended it was a pirate attack and felled two Malayali fisher men at around 21 Nautical miles away in high seas agreed by GPS records. Indian fishermen look to big ships altering course.
India’s land ‘jurisdiction’ laws CRPC in Kerala took on the high seas as Territorial Waters, disregarding Maritime Zones Act, 1976 (Maritime Zones Act), read in consonance with the 1982 UNCLOS, as it extends only up to 12 miles from the coast and the waters beyond are International waters. That is what Enrica Lexie was.
The politics in Kerala with elections nearing saw Defence Minister AK Antony enter the fray and insist it was India’s legal right to try the marines so charges under Section 302(murder), 307(attempt to murder), 427(mischief causing damage), 34(common intention) of IPC and Article 3 of SUA Act were framed by Police backed it with by bullet evidence.
India’s Ministry of External Affairs (MEA) looked to UPA political directions, and offered no legalities to the Attorney General. The SG in the case was asked to resign as he stated Italy had the Jurisdiction. Name of an AP in Sonia Gandhi’s office did the rounds.
Italy fought back to say the two Marines could not be tried under Indian CrPc criminal laws, as sentence to death was aired in the media. At last stage Chief Justice Kapadia ordered a Special Maritime Court of experts to adjudicate the case. This suited the MEA bureaucracy’s file work and no such court was ever formed and no one agreed who should it consist of.
NIA nominated could file the Charges as no law seemed right for it, and MEA drafted a retrospective Piracy Law which Parliament refused to pass.
Italy objected to every action India took in courts and waited four years for a final verdict. Only then could Italy go as an aggrieved party to one of the three International Court of Justice’s including ITLOS, which is the International Tribunal of the Law of the Seas, who gave interim orders allowing parole to the Marines on medical grounds. It’s all but over now as India is not filing any more protests and both Marines are safely in Italy.
In 2012 in the Supreme Court Barrister Salve argued Enrica Lexie was in International waters for Italy to try the Marines and India could represent its case there. He threatened India would lose in International Tribunal if it passed a verdict.
In 2014 IDF posted the same arguments favouring Italy after attending Supreme Court hearings and spoke at Italian Naval College at Turin and Dubai and at an international Maritime Law conference in Mumbai and explained Indian courts were unable to decide whose “Jurisdiction” . it was.
This case led to vast expenses and energies in Indian and Foreign legal fees, and there were changes of Indian government’s arguments and stances in court. Strangely no one realised that if the aggrieved party was not happy (ITALY) with the verdict the case would have gone back for final decision to the Supreme Court, as Italy took it as its core interest.
This to IDF’s mind this happened because the Navy with its legal JA and Chief Hydro division and Coast Guard with foreign trained legal experts who are hands on Maritime Law, and unpolitical have been sidelined, to proffer advice and MEA even suggested a new LAW ! A table of infirmities IDF presented are tabled. SHAN NO VARUNA
Event Effect and precedent
Seaman Guard Ohio crew held off TUTICORIN 2013 as they had arms on board legally but records were not proper. Crew
was tortured and jailed for years and trawler was ransacked Armories on board affected, Are they legal? Indian Firearms Act needs change. Poor Ex Army Jawans and Navy Sailors were mercenaries doing crew duty and by mistake MV SEAMAN GUARD entered Indian waters where BASE LINES had changed to take fuel as Sri Lanka had banned the ship as their PM had opened its own company. At Galle conference they told CNS Adm Nirmal Verma and NSA that SEAMAN GUARD OHIO was gun running !
Coast Guard tracked and arrested Ohio and deserves credit and washed hands off as intelligence agencies took over.
Financial of the small company badly affected. Sri Lanka rejoiced.
Comprtition Armoury is owned by ex-President relations media reported
Crew status uncertain saw few years in jails in South
Cost of crew has gone up on Guard ships but piracy reduced credi Navy but no laws.
Was that Privateering- banned 100 years back? India’s ancient belief.
Proves India’s conventional security with Navy and COAST GUARD is good but legal apparatus is not adequate
Gap still not filled by pvt security firms in India.
Rules yet to evolve
Is there a Gap in law here?
Enrica Lexie Were Armed guard responsible to be sentenced to death ?
Irrational behaviour can be questioned but were on Duty ! APSA
India Italy relations affected
Clever move by CG to bring in ship to harbor but back fired for India
Was guards response proportional?
Was it as per best stated practises?
Was piracy High Risk Area created with good rationale by Insurance companies
Was it beneficial to all to create larger HRA?
There a gap of law here and ENRICA LEXIE case showed it.