Friday, July 3, 2020

Deciphering the Award of Permanent Court of Arbitration in The Italian Republic V. The Republic of India (Enrica Lexie Incident)

(V.M.Syam Kumar, Advocate, High Court of Kerala)

Let us weigh in the gains and losses for India, as best as they can be discerned from the ‘Extracts for Advance Publication’ which has been released today (02/07/2020). Perhaps that will enable us to decide whether we should celebrate the Award or whether we should seriously ponder over the legal course of action to be taken, so as to secure our fishing folk from similar ignominies in the future.
Let’s begin with the gains.

India’s gains (that matter!):

 1.PCA Award finds that by interfering with the navigation of the “St. Antony” Italy has acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.
(Art. 87 concerns Freedom of the high seas and Para 1 (a) and Art. 90 provides that every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. Thus the award holds that Italy had interfered with the said right of the Indian registered marine boat “St. Antony”).
      2.The Award then reaffirms that Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention but holds that the said finding in the Award constitutes adequate satisfaction for the injury to India’s non-material interest.
(For the material interest lost due to the said breach by Italy, the award later finds that compensation is payable.)
  3.The Awards holds that as a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention, India is entitled to 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”.
(This will entitle India to claim on behalf of the victims compensation in addition to Rs.1 Crore that had already been paid to the heirs of each of the deceased fishermen, by the Republic of Italy.)
    4.Award finds that there is no need to address the question of the compatibility with UNCLOS of India’s 1976 Maritime Zone Act and its 1981 Notification.
(This finding saves the provisions of the India’s 1976 Maritime Zone Act, some of  which contradicts the stipulations of UNCLOS. For eg. Sec. 5  of the Indian Act envisages for India within its contiguous zone 'security' interests.  This runs contrary to Art.33 of the UNCLOS which does not stipulate 'security' as an interest which a coastal state can exercise within its Contiguous zone. India has by its notification extended its Penal laws including I.P.C. and Cr. P.C. over its EEZ which again is ultra vires the powers of under UNCLOS. Italy had alleged that India’s 1976 Maritime Zone Act and its 1981 Notification violates Articles 33(1), 56(1), 56(2), 58(2), 87(1)(a) and/or 89 of UNCLOS. PCA by deciding not to address the question of the compatibility with UNCLOS of India’s 1976 Maritime Zone Act and its 1981 Notification, saves the said Indian legal norms from scrutiny at the touch stone of UNCLOS)

India’s gains (of lesser consequence):
  1.PCA finds that India has not acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 92 of the Convention.

(Italy had, based on the action taken by Indian law enforcement agencies vis a vis ENRICA LEXIE after the incident, alleged that India had violated Italy’s freedom of navigation and thus was in breach of UNCLOS Article 87(1)(a). Further, it was also alleged that Italy’s exclusive jurisdiction over the ENRICA LEXIE secured by Article 92 of UNCLOS, stood breached. This and similar contentions based on actions taken by Indian agencies, have been found to be not violative of Art. 87 (1)(a) and 92.
        2.PCA finds that Article 97, paragraphs 1 and 3, of the Convention are not applicable in the present case.

(Art. 97 of UNCLOS concerns Penal jurisdiction in matters of collision or any other incident of navigation. This is a very crucial article which had altered the dictum in the celebrated S.S. LOTUS Case, which had been adverted to by Italy while the Supreme Court of India examined the legality of Indian action arising out of Enrica Lexie incident. PCA finding that Article 97, paragraphs 1 and 3, of the Convention are not applicable in the present case brings in solace for India as a strict reliance on the wordings of Art. 97 would not have afforded to India the concurrent jurisdiction that benefited Turkey in SS LOTUS Case. The reasoning for this bemusing finding, which may be elaborated in detail in the Award, is eagerly awaited.)  
     3.Finding that that India has not violated Article 100 of the Convention and that therefore Article 300 cannot be invoked in the present case.

(Article 100 of UNCLOS concerns with a state's duty to cooperate in the repression of piracy. Article 300 on the other hand pertains to 'Good faith and abuse of rights' and stipulates that State Parties shall fulfill in good faith the obligations assumed under UNCLOS and shall exercise the rights, jurisdiction and freedoms recognized in UNCLOS in a manner which would not constitute an abuse of right. Italy has alleged that the fishermen were shot and killed as they were mistaken for pirates and that ENRICA LEXIE after the shooting had duly relayed to shore a piratical incident. It is based on the said facts and its Indian response that Italy had pressed in Art. 100 and Art. 300. The said contentions , which by itself had flimsy standing, was correctly rejected by PCA to the relief of India.)    
   4.The PCA Arbitral Tribunal retains jurisdiction, should either Party or both Parties wish to apply for a ruling from the PCA in respect of the quantification of compensation due to India.

(This ensures that both sides can approach the PCA in case if they are not able to agree among themselves regarding the amount of compensation due to India.)  

India’s Losses:

    1.PCA found that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required.

(This finding is a severe blow to India and to the Indian law enforcement agencies like the Coast guard and state marine police as under Indian law they have ample power to exercise criminal jurisdiction up till 200 nautical miles EEZ. In Republic of Italy v. Union of India (2013) 4 SCC 721., the Supreme Court of India had inter alia ruled that the incident took place within the Contiguous Zone of India over which, “under the provisions of the Maritime Zones Act, 1976, and UNCLOS 1982, India is entitled to exercise rights of sovereignty. Suffice to say that, the PCA award unsettles the said judgment of the highest court of the land.)

    2.PCA Award concludes that the Italian marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines.

(This finding in a single stroke, not only nullified all actions taken by the Indian law enforcement agencies vis a vis the accused and rendered them illegal and unsustainable. This is so notwithstanding the judgment of the Indian Supreme Court which upheld all such actions by central agencies (barring that of registering case by the police of the state of Kerala) as legal and valid. The singular effect of such a finding will be that, if a similar incident was to happen in the future upon Indian coastal waters, the law enforcement agencies will find it difficult nay impossible to effectively intervene to protect the interests of the country and its citizens who frequent the EEZ for their living. How this finding is reconciled with the earlier finding based on Article 87, paragraph 1, subparagraph (a), and Article 92 of the Convention is to be seen from the Award.)    

     3.The Award finds that Italy has not violated India’s sovereign rights under Article 56 of the Convention.

(This finding fails to recognize India’s sovereign rights within its EEZ and undermines the rights of Indian fisher folk to peacefully engage in fishing within their patrimonial sea. Article 56 of UNCLOS mentioned in the Award, stipulates the Rights, jurisdiction and duties of the coastal State in the exclusive economic zone. The incident involving Enrica Lexie happened admittedly within the EEZ of India. In view of Art. 56 India has the sovereign right to exploit the living resources within its EEZ. The fishermen on board fishing boat ‘St. Antony’ registered in the Indian State of Tamil Nadu, while being shot dead, were peaceably exercising their right to fish within the waters of India which had been reserved for them by their sovereign. This finding of PCA, in the facts of circumstances of the case whittles down the ambit of Art 56 and could have future repercussions for the fishing folk.)

    4.PCA finds that Italy has not violated Article 58, paragraph 3, of the Convention.

(This finding in the award of the PCA jeopardizes the secured rights of India within its EEZ vis a vis the foreign flag vessels and could limit the power of Indian law enforcement agencies to ensure foreign flag vessels plying through the Indian EEZ honour the mandates of Article 58 of UNCLOS. That article stipulates the Rights and duties of other States in the EEZ. Paragraph 3 of Art. 58 stipulate that in exercising their rights and performing their duties under UNCLOS in the EEZ, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of UNCLOS and other rules of international law in so far as they are not incompatible with Part V of UNCLOSIndia ought to have argued that there exists a customary international practice of extending coastal penal jurisdiction up till EEZ and thus as stipulated in Paragraph 3 of Art. 58, compliance of its laws were mandatory. The finding now delivered by PCA restricting the scope of Art. 58, could prove onerous for India.

       5.PCA award concludes that Italy has not infringed on India’s rights under Article 88 of the Convention.

(This is yet another finding of the PCA in the award which when read in the context of the facts leading to the case, could prove costly for India in the future. The same could also undermine the efforts towards reserving high seas for peaceful purposes as enshrined in Art. 88 of UNCLOS. At a time when armed naval and private maritime security agencies are proliferating the merchant vessels plying through Indian EEZ, the above finding does not augur well for Indian fisher folk and also for the Indian law enforcement agencies who have the unenviable task of securing our vast coastal waters) 

India’s Gains and Losses  
Indian Media has started celebrating the Award as a stupendous success. The compensation part of the Award may be alluring to some. But what lies beneath can be overlooked only at the nation’s peril. To get a full picture of the reasons that lead the learned arbitrators to some of the interesting findings arrived, we may have wait till the Award is published. 
The ‘Extracts for Advance Publication’ published today reveal consistent dissent from Learned Arbitrator Robinson against the majority. Perhaps, the most pithy and valid reasons could be found in that dissent.