The ruling in the Italian marines case by the Permanent Court of Arbitration (tribunal) at Hague will not affect India’s rights in the exclusive economic zone (EEZ) for fishing, exploration of gas etc, former additional solicitor general (ASG) PS Narasimha, who headed India’s legal team during the initial stages of the case before the International Tribunal for the Law of the Sea, told HT.

The EEZ is a sea zone prescribed under the United Nations Convention on Law of Seas (UNCLOS) and extends up to 200 nautical miles (370 kilometers) from the coastline of the country. The UNCLOS is an international agreement that defines the rights and responsibilities of nations with regard to their conduct and use of world seas and oceans and management of marine natural resources. As per Article 56 of UNCLOS, every country has sovereign rights within the EEZ including the right to exploit natural resources, living or non-living.

The incident of shooting at Indian fishermen in 2012 happened within the EEZ. Despite that, the arbitral tribunal came to the conclusion that Italy has not violated India’s sovereign rights.

The tribunal’s observations should be seen in the context of the specific incident of Enrica Lexie wherein it held that a vessel can take action to protect itself from what it assumed was an attack by pirates, Narasimha said.

“The Tribunal’s ruling does not impact India’s rights in the EEZ for fishing, exploration of gas, fishing in any manner whatsoever. The tribunals’ observations (on Italy not having violated India’s sovereign rights) are limited to the extent of stating that a vessel has a right to protect itself from potential piracy attacks including in the EEZ of another state. These observations are only a reflection of the rights vested in a country’s vessel to protect itself in certain circumstances and not in derogation of the coastal state’s rights in the EEZ”, he said.

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Narasimha made it clear that the finding of the tribunal need not be categorized as Italy not having violated India’s sovereign rights at all. The Tribunal, he said, recorded in clear terms that India has the freedom of navigation in the high seas and that Italy has acted in breach of India’s freedom of navigation.

“The tribunal has only held that in the specific incident of the Italian vessel, which was otherwise traversing peacefully through the EEZ, the action taken by Enrica Lexie due to its supposedly bonafide assumption of a potential piracy event, may not have been in violation of India’s sovereign rights in the EEZ. The tribunals’ ruling only proceeds to examine whether a vessel is entitled to take defensive in the event of an attack in the EEZ of another country. To this particular question, it has answered in the affirmative”, he said.

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Narasimha also pointed out that the tribunal rejected Italy’s claim that India is expected to make reparations for its actions of arrest and investigation of the Marines.

“On India’s counter- claim of violation of Article 56 by Italy, the Tribunal has held that no foreign-flagged vessel can proceed to act against Indian sovereign interests and rights in the EEZ in any manner”, he added.

While the tribunal held that Italy interfered with India’s right to navigation when Enrica Lexie fired at the Indian fishing boat St. Antony, it also held that India should stop exercising criminal jurisdiction over the marines, since they enjoyed state immunity while acting in their official capacity.

Narasimha said that while there might be problems with regard to tribunal’s finding on marines enjoying state immunity, the same is not contradictory to the finding on violation of India’s right to navigation.

“Though the issue of territoriality has been held in India’s favour, the issue of immunity is not contradictory but a different issue entirely,” he said.

The tribunal, he said, correctly observed that the act of shooting by the marines, which caused St. Antony to change direction and head back to shore, was in violation of India’s freedom of navigation.

But despite specifically holding that India has jurisdiction over the incident, the tribunal also observed that whether or not India can subsequently try the marines would also depend on the outcome of the question of immunity. The question of immunity was then answered in the favour of Italian marines, based on which, India was asked to stop the criminal proceedings against the marines.

“The Tribunal’s finding that immunity was applicable to the marines in these facts and that they were ‘State officials of the Italian Republic’ and were ‘acting in their official capacity as officers of the Italian Navy is questionable. This approach is rather dangerous for the serious implications they entail in how countries are expected to act in similar situations in the future,” Narasimha added.

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