Category Archives: Law of the Sea

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:

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Negotiation and Signature of the Caen Agreement on the Delimitation of Territorial Waters and Maritime Jurisdiction between Italy and France

On 13 January 2016 the French authorities arrested the Italian fishing vessel Mina with the accusation of violating French territorial waters. The Mina was arrested during fishery of the red shrimp off the Ligurian coast, between Ventimiglia and the Mentone bay, before the Balzi Rossi reef, and was released upon payment of an 8300-euro deposit. Subsequently, the French authorities expressed regret for the arrest, conceding that it ensued from a wrongful determination of the boundary and jurisdiction over the area. The case spotlighted the on-going discussion between Italy and France over the determination of their maritime boundaries and corresponding fishing rights in an area off Liguria and North of Sardinia, pending the ratification of the so-called Caen Agreement.[1] To date, Italy’s and France’s jurisdiction and fishing rights in the respective areas have been regulated de facto by the 1986 Bocche di Bonifacio Agreement[2] and the 1892 Convention on the fishing zone in the Mentone Bay.[3] More specifically, the 1892 Mentone Bay Convention has never entered into force and was negotiated as a modus vivendi providing for a cooperative ground between the countries, whilst leaving their positions legally unprejudiced. As to the Bocche di Bonifacio Agreement, it only determines French and Italian territorial waters in the Strait of Bonifacio. Though regulating the fisheries traditions and practices of French and Italian fishing vessels in a common zone West of the Strait, the Agreement fails to comprehensively establish the Parties’ maritime boundaries and fishing rights. The Caen Agreement, when in force, would thus constitute the first bilateral instrument to effectively determine the maritime boundaries between the two countries and serve as a basis to settle possible disputes.

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The Deputy Minister of Foreign Affairs, Mr Lapo Pistelli, on the third-party effects of a bilateral treaty establishing an Exclusive Economic Zone

SENATE OF THE REPUBLIC, 3rd PERMANENT COMMISSION (FOREIGN AFFAIRS – EMIGRATION), XVII LEGISLATURE, 67th MEETING, 17 FEBRUARY 2015.

On 18 January 2015, two Italian trawlers (the Jonathan of Siracusa and the Albachiara of Cagliari) were arrested by the Egyptian coast guard about 36 nautical miles far from the coast of Egypt. The timely intervention of the Italian Government brought to the release of both the two vessels and their crews (except the catch) before a full day had passed since the incident. One month later, Mr Lapo Pistelli, Deputy Minister of Foreign Affairs and International Cooperation, intervened in the Senate and, commenting upon these facts, made a statement that might be read as implicitly accepting the third-party effects of a bilateral treaty aimed at delimiting two Exclusive Economic Zones in a highly contested area. In the words of the Deputy Minister:

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A Statement by the Minister of Foreign Affairs, Emma Bonino, on the application of anti-piracy laws by India in the Enrica Lexie case

SENATE OF THE REPUBLIC, XVII LEGISLATURE, 191st MEETING, 13 February 2014

On 13 February 2014, the Minister of Foreign Affairs, Emma Bonino, intervened before the Senate on the Enrica Lexie case. She expressed Italy’s serious concerns on the application of Indian anti-piracy and anti-terrorism legislation, which would run against the international efforts in fighting piracy. Moreover, the Minister criticised the stance taken by the UN Secretary-General, according to whom the dispute should be settled on a bilateral basis. The Minister eventually stressed that both NATO and the EU shared Italy’s concerns and supported the internationalisation of the dispute. She stated:

As for NATO, the Secretary-General just confirmed yesterday his sharing of our concerns and warnings in relation to the impact that the case of our marines might have on the entire framework of anti-piracy operations.

Thus, the reply given last Monday to a journalist by the Secretary-General of the United Nations, according to whom a negotiation on a bilateral basis of the marines case would be preferable to the involvement of the UN, despite not being new in its content, raised serious concerns and our greatest regret. The Secretary-General’s response is undoubtedly consistent with the traditional UN approach to judicial disputes between two Member States – a response, perhaps, where a misinterpreted consideration of impartiality toward two important members of the United Nations outbalances the attention that is due to the legal questions and matters of principle raised by Italy.

The point is, however, that the SUA Act, or its use as a ground for the indictment, had a substantial effect on the dispute. I dare to say – with all the respect that Italy has toward the United Nations system, which, moreover, I have always personally and frankly supported – that affirming at this point that such a case is a dispute between States is an irrelevant truism. And I believe that the reason is clear: the ongoing anti-piracy operations, in which we are taking part as our marines did, are grounded on several conventions on terrorism signed under the auspices of the United Nations, as well as on resolutions of the Security Council. These resolutions and these conventions are not only based on the common necessity to fight effectively piracy and terrorism, but also on the no less important necessity to prevent abuses and divergent interpretations of the definition of “terrorism” and “terrorist”. These notions are often used extensively, if not in an outright abusive way; it would thus be appropriate to establish a multilateral monitoring on the way national legislations in this field are interpreted and enforced.

What is more, we are no more the only ones to raise such concerns. Following the meeting of the Foreign Affairs Council that was held last Monday, the European Union took the field to support Italy against the threat of an abuse of a legal framework which risks to jeopardise the entire anti-piracy international action. In this respect, too, I think that the response of the Secretary-General leaves something to be desired, as on this specific point we are not dealing any longer with a divergence or a dispute between Members of the United Nations, but with a critical mass of States, including four Members of the Security Council (two of which permanent Members), which raises a fundamental matter of principle.

She continued by saying that:

Italy has always coherently held the view that the case of the marines trespasses the ambit of bilateral relations, since it concerns the compliance with international law, including the principles of freedom of navigation, exclusive jurisdiction of the flag State, immunity of State agents acting in their official capacity, and the efforts of the international community in the fight against piracy. In fact, I reassert that our marines were taking part in an anti-piracy mission in accordance with international law, the relevant UN Security Council resolutions and the Italian legislation enacting international anti-piracy norms, as the Government has affirmed in international fora. Therefore, we have constantly rejected the legitimacy of the jurisdiction of Indian judges and we have reiterated on several occasions that this jurisdiction is being exercised in contravention of the United Nations conventions on the law of the sea and of customary rules on functional immunity of State officials.

It is on the basis of these very considerations that, following the request of application of the SUA Act, we have further increased our pressures on the UN and, while since January we had decided to raise human rights concerns by means of an action before the High Commissioner, Ms Pillay, whom I am in touch with and will soon meet again in Geneva, as soon as the application of the SUA Act started being considered, we reacted strongly, as we are sure that this element goes far beyond the bilateral sphere.

Finally, she declared:

It is no more, it cannot be anymore a mere bilateral dispute, since what is at stake are the basic principles of the rule of law, and the application of anti-terrorism conventions and two Security Council resolutions authorising both the Atalanta operation (run by the EU) and the one named Ocean Shield .

The original Italian version of this speech can be downloaded here or found at www.senato.it/service/PDF/PDFServer/BGT/00747740.pdf.

A Statement by the Minister of Foreign Affairs, Emma Bonino, on the application of anti-piracy laws to the Italian marines and on possible human rights violations by India in the Enrica Lexie case

CHAMBER OF DEPUTIES AND SENATE OF THE REPUBLIC, 3rd AND 4th JOINT COMMISSIONS, XVII LEGISLATURE, 11 February 2014

On 11 February 2014, the Italian Minister of Foreign Affairs, Emma Bonino, presented before the III and IV Commissions of the Chamber of Deputies and the 3rd and 4th Commissions of the Senate of the Republic the most recent updates in the Enrica Lexie case. The Minister opened her speech by mentioning the request by the Indian prosecutor to apply Indian anti-piracy and anti-terrorism legislation against the two Italian marines. She then presented the Italian defence and highlighted both the possible violation of human rights on the part of India and the commitment of the EU member states in the affair. She said:

You also know that our lawyers’ reaction has been very strong and, I think, very precise, radically contesting the possibility of using anti-terrorism legislation, as the Indian government had declared in the previous days. It is absolutely evident, in fact, that our marines are not terrorists nor pirates and on that ship, in that zone, on that day, they were acting in their official and institutional capacity in the name of the Italian government.

And she added:

In relation to the violation of human rights due to the lack of an indictment after two years, together with a restriction of their freedom, so that the two aspects are bound, we have also entered into contact with the United Nations High Commissioner for Human Rights, who reserved the right to assess the situation.

I must acknowledge that all the twenty-eight member states [of the European Union] have had rather positive reactions. This affair is endangering the participation to the entire counter-piracy effort undertaken on the basis of the decisions of the United Nations and of European and national legislation. The High Representative [of the Union for Foreign Affairs and Security Policy] has spoken of enormous consequences precisely because an entire policy concretely started in the last years is being put into question.

She then concluded:

I recall that until recently, in other times, the same steps were met by declarations according to which this was essentially a bilateral issue between Italy and India. I just want to highlight that the fact that the European Union as such, and not only, came to take on responsibility for this represents a solid position that must be used. I also highlight this as a new element.

The Italian version of the statement can be downloaded here.

A Statement by the Undersecretary of State for Defence on the Application of the Hamburg Convention on Maritime Search And Rescue (SAR)

CHAMBER OF DEPUTIES, XVII LEGISLATURE, 149th MEETING, 10 JANUARY 2014.

On 10 January 2014, the Undersecretary of State for Defence, Mr. Gioacchino Alfano, reported before the Chamber of Deputies on the sinking of a fishing vessel that took place on 11 October 2013, 113 km away from Lampedusa and 218 from Malta. The sinking caused the death of hundreds of Syrian refugees, including many children. A member of the Parliament called into question the proper management of the rescue operations, namely as to the lack of coordination between the Italian and Maltese authorities, that resulted in a late intervention. He also contested the effectiveness of the rules provided for by the Hamburg Convention on Maritime Search and Rescue (SAR) in so far as they allow a SAR area to be put under the jurisdiction of an authority which is not necessarily the best placed to intervene, as in the case at issue, where the competent authority was the Maltese one. In response to the parliamentary question, Mr. Alfano said:

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The President of the Council of the Ministers on Functional Immunity of State Officials from Foreign Criminal Jurisdiction (Enrica Lexie Case)

CHAMBER OF DEPUTIES, XVII LEGISLATURE, 50th MEETING, 10 JULY 2013.

On 10 July 2013, the President of the Council of the Ministers, Mr Enrico Letta, reported before the Chamber of Deputies on recent developments concerning the trial taking place before Indian authorities against sergeant major Latorre and sergeant Girone, two Italian marines part of a Vessel Protection Detachment (VPD) on board of the Italian oil-tanker Enrica Lexie accused of murdering two Indian fishermen while carrying out anti-piracy activities. Mr Letta referred to the testimony given by Latorre and Girone to the Indian judicial authorities on that same date and stated:

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