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The International Tribunal for the Law of the Sea today directed India and Italy to suspend court proceedings, pending the decision of an arbitral tribunal. The Tribunal also directed both countries to submit a report as to how they have complied with the Tribunal’s directions by September 24.
The Enrica Lexie incident dates back to February 2012, when two Italian marines allegedly shot two Indian fisherman dead off the coast of India. Sergeants Massimiliano Latorre and Salvatore Girone were later captured by Indian authorities. Subsequently, they had filed petitions in the Supreme Court challenging India’s jurisdiction.
While India claims to have jurisdiction to try the marines since the crime occurred in Indian waters, Italy has contended that only they have the power to initiate court proceedings, as per Article 97 (1) of the United Nations Convention on the Law of the Sea.
The provision states,
“…in the event of an incident of navigation which gives rise to the penal responsibility of any person in the service of the ship, no penal proceedings may be instituted against such a person ‘except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national…”
However, during the course of the submissions at the Tribunal, India contended that the aforementioned Article would not apply. It submitted,
“this case is not covered by Article 97 of the Convention…there was in reality no ‘incident of navigation’, nor any collision between the two ships and that [t]hey had no physical contact and Article 97 of the UNCLOS … is irrelevant by any means…”
In lieu of the fact that both countries could not come to a consensus on the procedure for the settlement of the dispute, the matter will have to be decided by arbitration.
On July 21, Italy had made a request to the ITLOS to prevent India from taking judicial action against the marines and prohibiting their movement pending the Annex VII tribunal’s award. Today, the Tribunal has voted 15-6 in favour of accepting Italy’s request.
Among those who dissented was Indian judge P Chandrasekhara Rao. During the course of the proceedings, India was represented by Additional Solicitor General P Narasimha; French advocate Alain Pallet; and Rodman Bundy, Director of the Dispute Resolution practice at Eversheds LLP.