Piracy committed on the High Sea (UNCLOS).
In the Arabian Sea on 15 February, 2012, two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots allegedly fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident. The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code. The jurisdiction over the event is contested by Italy and India with Italy seeking provisional orders from the International Tribunal for the Law of the Sea compelling India to cease prosecutions and release the Italian marines held in custody until such time as the UNCLOS Arbitral Tribunal can determine which nation can exercise jurisdiction.
International Tribunal for the Law of the Sea.
Italy brought a request for provisional measures against India in this situation, compelling India to cease criminal prosecutions against the marines (which ITLOS noted the India Supreme Court had already done until the question of jurisdiction was resolved) and compelling the release of the marines until the Annex VII Arbitral Tribunal could resolve the issues of which state could claim jurisdiction over the incident, and whether the marines in acting as security against piracy for an Italian flagged vessel possessed functional Sovereign immunity for their actions. ITLOS held that to allow India to continue criminal proceedings before the Arbitral Tribunal had determined jurisdiction would unduly impinge upon Italy’s rights and thus ordered provisional measures compelling India to halt proceedings. ITLOS also held that to order India to release the marines while the issue of jurisdiction was being resolved would unduly impinge upon India’s rights as the state who had had its citizens killed in the incident and thus they rejected this request by Italy.
Provisional orders for India to cease prosecution were made and requests for provisional orders compelling India to release the marines were rejected.
International Tribunal for the Law of the Sea
This case goes to the core of issues of jurisdiction over vessels on the high seas. Italy claims exclusive jurisdiction as flag state and claims functional immunity for its marines as they were acting to protect Italian interests. India is claiming jurisdiction as the flag state of the St Antony and the victim state in the incident. ITLOS has attempted to balance the competing rights of both states until the UNCLOS Annex VII Arbitral Tribunal can determine who has jurisdiction over the incident.