India and Italy Fight Over Jurisdiction in International-Waters Shooting

Representatives for India and Italy offer opening statements in the Permanent Court of Arbitration in The Hague, Netherlands. (Photo courtesy of the PCA)

THE HAGUE, The Netherlands (CN) – India and Italy wrapped up hearings Saturday over jurisdiction in the 2012 killing of two Indian fishermen by Italian sailors in international waters.

The so-called Enrica Lexie incident took place in 2012, when the Italian oil tanker, the Enrica Lexie, traveling off the coast of India was approached by an Indian fishing vessel. Two Italian marines onboard fired what Italy contends were warning shots at the ship. India says the vessel was fired at without notice.

Two fishermen, Ajesh Binki and Valentine, were killed.

In an ornate meeting room in the Peace Palace in The Hague, Italy and India offered their opening statements on July 8, 2019, before the Permanent Court of Arbitration.

Arbitration began in 2015, when Italy filed a complaint with India under United Nations Convention on the Law of the Sea. Under the treaty, parties can choose which venue where they would like to resolve their dispute: the International Court of Justice, the International Tribunal for the Law of the Sea, an arbitral tribunal or a special arbitral tribunal.

But India and Italy were unable to agree on a venue, so the dispute was heard by the arbitration court over the last two weeks.

The PCA is one of the oldest venues for international dispute resolutions, established in 1899 by the Hague Convention. Unlike other international courts, parties who bring the disputes nominate the arbiters and set other conditions, such as the language.

The Italian ambassador to the Netherlands, Francesco Azzarello, gave the opening statement on behalf of Italy last Monday. He described the fishing boat as “on a collision course” with the Enrica Lexie and said the sailors gave repeated warnings before firing. He also stressed that the boat was in international waters at the time and that Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone were acting as agents of the Italian government.

Under the U.N. convention, ships operating as agents of a government are granted sovereign immunity.

The presiding judge, Vladimir Golitsyn, repeatedly mispronounced the name of New Delhi’s agent, G. Balasubramanian, as he was introduced. Balasubramanian apologised for having a difficult name before addressing the matter before the PCA. He argued the India Supreme Court should be allowed to hear the case.

The case sparked an international uproar, including a European Parliament resolution condemning India’s actions.

Both of the sailors have returned to Italy. Latorre suffered a stroke while in Indian custody and was allowed to return on medical grounds. Girone returned in 2016, following a decision by the PCA on provision measures. Italy had requested that he be released while the arbitration procedures were ongoing.

Cases before the Permanent Court of Arbitration are generally confidential, but the parties can agree to make the opening statements public, which they did in this case.

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