Republic of Italy has approached the International Tribunal for the Law of Sea (ITLOS) against India for the adjudication of the dispute over the Enrica Lexie incident, also known as the Italian marines case. Italy has invoked ITLOS’s jurisdiction under the United Nations Convention on the Law of the Sea (“UNCLOS”).
Earlier, on 26 June 2015, by a notification addressed to the Government of India, the Government of Italy submitted the dispute to the arbitral procedure provided for in Annex VII of the Convention.
Under the Article 290, paragraph 5, of UNCLOS, Italy has also sought provisional measures, pending the constitution of an arbitral tribunal:
a. India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident; and
b.India shall take all measures necessary to ensure that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.”
India has however challenged Italy’s decision to take the matter to the international tribunal and maintains that as the crime had taken place in Indian waters, the international tribunal has no role to play in it. [PTI]
On 15 February 2012, Italian oil tanker MV Enrica Lexie was transiting approximately 20.5 nautical miles off the coast of Kerala, India en route from Sri Lanka to Djibouti. Two Indian nationals – Ajesh Binki and Valentine aboard the St Antony were killed as a result of gunshot wounds from Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone (“Marines”) of the MV Enrica Lexie following its confrontation with St Antony. Italy claims that the Marines were deployed on board to protect the vessel against piracy during its voyage and that St Antony was on collision course with the Enrica Lexie and that this modus operandi was consistent with a pirate attack and that it continued to head towards the Enrica Lexie despite sustained visual and auditory warnings.
After the incident, the Enrica Lexie was intercepted in the Lakshadweep archipelago and compelled to proceed to Kochi port by the Indian Coast Guard. The petitions filed by the Marines challenging the jurisdiction of Indian courts is pending before the Supreme Court of India. The investigation of this case in being conducted by the National Investigation Agency (NIA). NIA has registered a case under sections 302, 307, 427 of Indian Penal Code read with 34 of IPC and section 3 of safety of Maritime, Navigation and Fixed Platforms on continental Shelf Act 2002.
On 21 July 2015, Italy sent a request to the ITLOS and consequently the present proceedings have initiated.
The Tribunal consists of 21 members and all the members sit during the proceedings. P. Chandrasekhara Rao, a member of the ITLOS is an Indian National. Since Italy is involved in the case, as per article 17(2) of UNCLOS, it has chosen Francesco Francioni as an ad hoc judge. Francioni swore in so on 8 August, 2015.
The legal team of Italy is led by David Bethlehem, a lawyer practicing in London and a former legal adviser to the Italy Foreign Office. Bethlehem has represented States and others in political fora and before domestic and international courts and tribunals including ICJ and ITLOS.
Additional Solicitor General P L Narasimha, who is leading the case in the Supreme Court of India is presumed to head the Indian team. International law experts Alain Pellet and R Bundy will represent India’s case.
Pellet is a French expert in international law and former president of the UN International Law Commission while Bundy has 30 years of experience as counsel and advocate in many public international law litigations. Pellet has appeared in 25 cases before the International Court of Justice.
India will appear before ITLOS, which will only be considering provisional measures pending disposal of the issue of jurisdiction before the arbitration Tribunal under Annexe 7 of the convention
8 August 2015
The Tribunal held a short public sitting at 10 a.m. during which, Francesco Francioni, Judge ad hoc chosen by Italy made the solemn declaration required under article 9 of the Rules of the Tribunal.
10 August 2015
The public hearing on the Request for provisional measures in the “Enrica Lexie” Incident (Italy v. India) will open on Monday, 10 August 2015 at 9.30 a.m. Judge Golitsyn, President of the Tribunal, will preside.
The schedule for the hearings is as follows:
First round of oral argument – Monday, 10 August 2015
9:30 a.m. – 1 p.m. : Italy
3 p.m. – 6:30 p.m. : India
Second round of oral argument – Tuesday, 11 August 2015:
10 a.m. – 11:30 a.m. Italy
4:30 p.m. – 6 p.m. India
Pleadings, arguments and other documents can be read here: