Italy’s Initiatives in the Enrica Lexie Case Following the Order of ITLOS to Suspend National Court Proceedings Pending Arbitration

In the course of 2016, the controversy of Italy with India, widely known as the Enrica Lexie case, was an important subject of discussion and debate in the Parliament. The events triggering the dispute date back to 15 February 2012, when two Indian fishermen were killed off the western coast of India, after a shooting incident involving Italian marines on-board the Italian-flagged oil tanker Enrica Lexie.

The subsequent arrest by Indian authorities of two Italian marines, Massimiliano Latorre and Salvatore Girone, sparked a controversy between the two countries; after unsuccessful attempts to settle the case through diplomatic means, on 26 June 2015 Italy decided to submit the dispute to international arbitration pursuant to Annex VII of the United Nations Convention on the Law of the Sea. Additionally, Italy sought provisional measures before the International Tribunal for the Law of the Sea, which ordered the suspension of all court proceedings against the two Italian marines, Massimiliano Latorre and Salvatore Girone, pending a decision on the issue of jurisdiction by the Arbitral Tribunal (The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, ITLOS, Order of 24 August 2015). On 13 January 2016, the Indian Supreme Court was convened to discuss the situation of one of the two marines, Massimiliano Latorre, who had been allowed to repatriate to Italy for medical reasons.

The initiatives adopted by Italy in the case, including the position expressed before the Indian Supreme Court, were illustrated by members of the Government in particular in the two occasions detailed below:

CHAMBER OF DEPUTIES, XVII LEGISLATURE, 547th MEETING, 14 JANUARY 2016

On 14 January 2016, during a question time taking place at the Chamber of Deputies, the Minister of Defence, Ms Roberta Pinotti, responded to a parliamentary question concerning the initiatives adopted by Italy with regard to the Enrica Lexie case. 

In answering the question, Minister Pinotti explained before the Chamber of Deputies the views expressed by Italy at the above-mentioned Supreme Court hearing. She stated:

Italy has informed the Supreme Court of India of the consequences of the 24 August 2015 decision of the International Tribunal for the Law of the Sea of Hamburg for the position of rifleman Latorre, which [decision] ordered the suspension of all internal court proceedings in Italy and India and the prohibition of aggravation of the dispute. Italy has therefore reiterated that it believes that, on the basis of said decision of the Hamburg Tribunal, the Supreme Court is prevented from taking any decision concerning rifleman Latorre and, therefore, he can remain in Italy. The Indian Government asked the Supreme Court to be granted a period of time in order to be able to express its position on the matter. Therefore, the jurisdiction of India has not been accepted. Absolutely not. The Court itself, by granting the requested period of time, adjourned the hearing to April on the basis of the request by the Indian Government to further examine the Italian position.

The Minister then concluded her statement by saying:

Finally, I confirm that, as already made clear on previous occasions, every future initiative will find its natural setting within the instruments contemplated by international law.

The full Italian version of this statement can be found here.

CHAMBER OF DEPUTIES, XVII LEGISLATURE, 4th PERMANENT COMMISSION, 3 FEBRUARY 2016

The Enrica Lexie case came to the surface again in parliamentary debates on 3 February 2016, when the Undersecretary of State for Defence, Mr Gioacchino Alfano, intervened before the 4th Permanent Commission – Defence of the Chamber of Deputies to answer a similar parliamentary question concerning the initiatives taken by the Italian Government to resolve the issue of the two Italian marines involved in the incident. Recalling the order of the International Tribunal for the Law of the Sea to suspend all court proceedings against the two Italian marines, Mr Alfano stated that Italy immediately complied with the decision, suspending all pending proceedings concerning the incident. He then went on to illustrate the views expressed by the Italian government before the Indian Supreme Court:

On 13 January 2016, Italy has informed the Supreme Court of India of the developments in the context of the international arbitration and brought to the attention of the Supreme Court [Italy’s] position on the consequences of the decision of the Hamburg Tribunal with regard to the situation of rifleman Latorre. Italy argued that the suspension of all court proceedings in India and in Italy and the prohibition of aggravation of the dispute ordered by the Hamburg judges constitute the legal basis for the stay of Massimiliano Latorre in Italy until the end of the arbitration proceedings, which shall decide the question of the allocation of jurisdiction between the two countries.

Mr Alfano also addressed the issue of the second Italian marine charged in the death of the two Indian fishermen, Salvatore Girone. He explained:

On 11 December, Italy submitted a request for provisional measures to the Arbitral Tribunal of the Hague, asking for the repatriation of rifleman Girone pending the arbitration proceedings. With this application, Italy asked the Arbitral Tribunal to authorise rifleman Girone to stay in Italy until the end of the arbitration proceedings, also in view of the foreseeable duration of the proceedings themselves.

He then concluded:

The Government pursues the path of international justice with determination in order to obtain the protection of the rights of Italy and of marine riflemen Latorre and Girone, including the rights to exercise exclusive jurisdiction on the Enrica Lexie and the functional immunity recognised under international law to the soldiers engaged in official missions on behalf of the State.

The full Italian version of the statement of Undersecretary Alfano can be found here.

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