NEW DELHI: The International Tribunal for Law of the Sea on Monday has refused to give instructions to India to let the two Italian marines accused of killing two Indian fishermen to stay in Italy, even as it asked both the countries to suspend all court proceedings.
New Delhi is rather pleased by the verdict of the Hamburg-based ITLOS, while Rome is disappointed that its primary aim of requesting for provisional measures, which is to get the marines back, has been thwarted.
“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 Annex VII arbitral tribunal or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render,” the tribunal said in its 27-page order, read out by ITLOS president Vladimir Golitsyn from Russia. The court also instructs both Italy and India to submit their initial report by September 24.
The tribunal gave its order by a majority of 15 to 6, with dissenting opinions of five judges appended to the judgment.
On February 15, 2012, two Indian fishermen were allegedly killed by Italian marines Massimilano Latorre and Salvatore Girone, off the Kerala coast. The latter, who were posted on the merchant ship, Enrica Lexie, had claimed that they mistook the fishing boat, St Anthony’s, for an approaching pirate skiff.
After several legal and diplomatic twists and turns, NIA slapped slapped charges under sections 302 (Murder), 307 (Attempt to murder), 427 (mischief) along with section 34 (Common intent) of IPC.
However, the trial by a special court has yet to begin with Supreme Court at its last hearing last month staying proceedings till February after Italy approached the international tribunal.
Latorre’s medical leave has been extended till January, while Girone is still in India, relatively free but under bail conditions.
The high-flying international legal team of Italy had made two requests to the tribunal for provisional measures. These were to direct India from judicial or administration measures against the two Marines and from exercising any jurisdiction over Enrica Lexie incident, as well as, to ensure that the two marines remain in Italy during the proceedings of the Annex VII tribunal.
The international court made it clear that it did not consider acceptable the two submissions made by Italy, as it would “not equally preserve the respective rights” of both parties.
Since it did not consider Italy’s plea “appropriate”, the tribunal then prescribed its own measures, which were not exactly what the Italians sought.
The court felt that that it could not prescribe provisional measure on the “situation” of the marines “because that touches upon issues related to the merits of the case”, which will have to be adjudicated by the Annex VII arbitral tribunal.
As per the United Nations Convention for Law of the Sea (UNCLOS), one of the four methods to settle disputes is for ad-hoc arbitration as laid out in Annex VII of the multilateral pact
Both Italy and India have accepted that actual dispute would be settled under such a arbitral tribunal, which has more flexibility in devising its procedures.
Italy has put on a brave face, but there is disappointment that their main aim to get the two marines back home will not happen any time soon. “Italy hoped (it would go) differently, we had asked for other things, the sentence doesn't go in the direction we had requested," said Italian transport minister Graziano Delrio. The Italian marine Girone’s father told media that he “felt a bit angry” with the court verdict.
Meanwhile, Italian foreign minister Paolo Gentiloni said that Rome “remained committed to the goal of guaranteeing the freedom of the two marines”. Some media reports had said that Italy may approach ICJ, but it is not clear if this will be a violation of the tribunal’s order which asks both sides to not initiate any new proceedings.
There is also a suggestion that Italy could again approach Annex VII tribunal for provisional measures, before it decides on the main body of the dispute.
The timeline for proceedings in ITLOS arbitral tribunal are lengthy. The maritime boundary dispute by India and Bangladesh was adjudicated by an Annex VII tribunal in over two years.
The Italian foreign minister added that the verdict was “useful”, as it “will be international arbitration, as Italy had requested, that will handle this case”.
He was, perhaps, referring to the court’s view that rejected Indian position that claimed ITLOS Annex VII tribunal had no jurisdiction in the matter, as it was a criminal issue with no provisions under UNCLOS.
This was not accepted by the court. The order said that “a dispute appears to exist between the Parties concerning the interpretation or application of the Convention, and it finds that the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute”.
In its response, the ministry of external affairs spokesperson Vikas Swarup said it was “it is clear that the Tribunal did not consider the two provisional measures sought by Italy to be appropriate”.
“As a State Party to UNCLOS and as a responsible member of the international community that has consistently stood by its international obligations, India will continue to abide by the Tribunal’s decisions, including the present one on Provisional Measures,” said Swarup.
By not ruling on the location of the marines, a member of India’s delegation to the tribunal told Express that court seemed to accept India’s argument that sending back the marines would not be helpful, as “the Italians are not reliable on this front”.
On the issue of jurisdiction, he said that while the court on Monday said that there was a ‘prima facie case’ for ITLOS to adjudicate, this was not the end of the road. “This is India’s basic position. We will again raise this when the main fight takes place before the Annex VII tribunal,” he said.
The official added that on the suspension of court proceedings, the language was a big vague as the court did not give a timeline on how long the restriction was applicable.