Hamburg | A UN tribunal today asked both India and Italy to suspend all court proceedings involving two Italian marines charged with killing of two Indian fishermen in 2012 and also refrain from initiating new ones that might aggravate or extend the dispute.
Hearing Italy’s appeal in the case, the President of the International Tribunal on Law of the Sea (ITLOS), Vladimir Golitsyn asked the two countries to submit the initial report in the entire incident by September 24. The judge said pending a decision by the arbitral tribunal, Italy and India shall both suspend all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the… arbitral tribunal or might jeopardise or prejudice the carrying out of any decision which the arbitral tribunal may render.
He further said, Italy and India shall each submit to the Tribunal the initial report…not later than 24 September 2015, and authorises the President, after that date, to request such information from the Parties as he may consider appropriate. The 21-member UN-mandated court located in this German city issued the order with 15 in favour and six against. Unhappy over India’s handling of the marine’s issue, Italy took the matter to the ITLOS challenging Indian jurisdiction in the case.
It has pleaded that India must cease to exercise any form of jurisdiction over the Enrica Lexie Incident and the Italian Marines, including any measure of restraint with respect to Sergeant Latorre and Sergeant Girone. The two marines, who were on board ship ‘Enrica Lexie’, are accused of killing two Indian fishermen on February 15, 2012 off the Kerala coast. ITLOS is an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention.
Italy had requested the tribunal to make India refrain from taking or enforcing any judicial or administrative measures against the two marines in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the case.
It had also asked 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.
Italy maintained before the tribunal that it was only in late May of this year that it became clear beyond doubt that a negotiated settlement with India would not be possible. India on its part contended that nothing happened in May to change what had been the status quo over the previous 14 months and recognised that in the spring of 2014, it was apparent that a diplomatic impasse had been reached.
The tribunal said that both parties agree that an extensive exchange of views has taken place and that this did not lead to an agreement between them regarding the settlement of the dispute by negotiation or other peaceful means. The tribunal said that India argued that although Italy pretends to act in order to protect its own alleged rights, Italy in reality behaves as if it were espousing its nationals rights while clearly the conditions for exercising its diplomatic protection are not fulfilled.
India maintained that Italy should have exhausted the local remedies available before the Indian courts’ and that ‘an Annex VII tribunal can only exercise its jurisdiction and rule on the claims of Italy once all remedies available to the two accused have been exhausted, it said. In the view of the Tribunal, since the very nature of the dispute concerns the exercise of jurisdiction over the Enrica Lexie incident, the issue of exhaustion of local remedies should not be addressed in the provisional measures phase.
It said India stated that under articles 95 and 96 of the Convention, immunity from the jurisdiction of any State other than the flag State is available only to warships and Government ships operated for non-commercial purposes. Admittedly, the Italian marines were on board a merchant vessel, therefore, the Government of India was not obliged to recognise their claim of immunity under the Convention or any other principle of international law, the tribunal said.
The question of the status of the two Marines relates to the issue of jurisdiction and cannot be decided by the Tribunal at the stage of provisional measures, it said. The tribunal said it was aware of the grief and suffering of the families of the two Indian fishermen who were killed and the consequences that the lengthy restrictions on liberty entail for the two marines and their families.
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