India has jurisdiction to try Italian marines, says SC
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However, the court also made it clear that its judgment was confined to the limited aspects and that the marines as well as the Italy government will be at liberty to invoke pertinent provisions of the United Nations Convention on the Law of the Sea (UNCLOS) during the trial.
Article 100 of the Convention obligates all countries to co-operate in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state. Article 97 of the Convention says no penal or disciplinary proceeding can be instituted against the Master or any other person in service of the ship, except before the judicial or administrative authorities, either of the Flag State or of the State of which such person is a national.
"I am also of the view that till such time as it is proved that the provisions of Article 100 of the UNCLOS apply to the facts of this case, it is the Union of India which has jurisdiction to proceed with the investigation and trial of the petitioners. It is also made clear that nothing in this judgment should come in the way of such reconsideration, if such an application is made," noted the court.
Significantly, the Supreme Court order leaves the marines and the Italy government with yet another opportunity to re-agitate the issues relating to the lack of jurisdiction by the Indian courts, now before the special court, which will adjudicate it on the basis of the evidence and other records.
However, while authoring a concurrent but separate judgment, Justice Chelameswar held that "Article 97 of UNCLOS has no application to the Exclusive Economic Zone, of which the Contiguous Zone is a part, and that is the area relevant, in the context of the incident in question."
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