Context: Recently, the Permanent Court of Arbitration (PCA) has published an extract of the final award of the ad-hoc tribunal constituted to settle disputes related to the United Nations Convention for the Law of the Sea (UNCLOS) regarding Italian marine Case between India and Italy.
Background

• The decision pertains to an incident of the year 2012 when two Italian marines fired shots while on-board an Italian vessel, Enrica Lexie killing two Indian fishermen aboard an Indian vessel, St. Anthony.
• The two marines were released from India and sent to Italy through orders passed by the Supreme Court.
• The dispute between the two countries as regards which country will try the two marines was before the PCA.

Key Points

• The PCA has ruled that Italy would have jurisdiction to decide on the question of immunity for the marines. Thus, India is precluded from exercising its jurisdiction.
• The PCA also ruled that while India’s conduct has not been in breach of the United Nations Convention on the Law of the Sea (UNCLOS), Italy breached provisions of the Convention by intercepting the navigation of India’s vessel.
• Italy is, as a result, liable to pay compensation to India. And both the nations are required to hold consultations in order to arrive at the amount of compensation to be paid to India.

Judgements in Favour of India

• The tribunal held that the actions of the Italian military officers breached India’s freedom of navigation under UNCLOS Article 87(1)(a) and 90.
• The tribunal also held that India is entitled for payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by captain and crew of ‘St Antony’, the Indian vessel.

Judgements in Favour of Italy

• India had called on the Permanent Court of Arbitration (PCA) UNCLOS tribunal to adjudge and declare that PCA has no jurisdiction with respect to the case submitted to it by Italy. However, a majority of the court's five- member bench ruled 4-1 that it had jurisdiction in the matter.
• Italian position that the marines, being members of the Italian armed forces in the official exercise cannot be tried by Indian courts, was held and immunity was granted to Italian marine officials.

Basis of the Judgement

• The tribunal observed that India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the marines.
• However, it also observed that the immunities enjoyed by the marines as State officials operate as an exception to the jurisdiction of the Indian courts and, hence, preclude them to judge the marines.

About International Tribunal for the Law of the Sea (ITLOS)

• International Tribunal for the Law of the Sea (ITLOS) is an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention.
• The Tribunal is composed of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.
• The Tribunal has jurisdiction over any dispute concerning the interpretation or application of the Convention, and over all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.

About United Nations Convention on the Law of the Sea (UNCLOS)

• It is the international agreement defining the rights and responsibilities of nations with respect to their use of the world’s oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources.
• UNCLOS replaces the older ‘freedom of the seas’ concept, dating from the 17th century: national rights were limited to a specified belt of water extending from a nation’s coastlines according to the ‘cannon shot’ rule.
• All waters beyond national boundaries were considered international waters: free to all nations, but belonging to none of them.

About Permanent Court of Arbitration

• The Permanent Court of Arbitration (PCA) was established in 1899 and headquartered at the Hague in Netherlands.
• It is an intergovernmental organization dedicated to serve the international community in the field of dispute resolution and to facilitate arbitration and other forms of dispute resolution between States.
• It has a Financial Assistance Fund which aims at helping developing countries meet part of the costs involved in international arbitration or other means of dispute settlement offered by the PCA.