Enrica Lexie; Italy Vs India at ITLOS -2 : Day-2

International Tribunal for the Law of the Sea witnessed second round of oral arguments by Italy and India in Enrica Lexie case yesterday. Live Law had covered the first round of arguments which may be read here.  Italian Ambassador reportedly  said  yesterday” :"Italy has been accused by India of being a country that doesn't keep its word,this accusation is totally unacceptable”. He further added that "The commitments made in India in this case have always been honoured” and that "Italy is saddened by the loss of the lives of (the two fishers) and has expressed this on many occasions”. "Any attempt against the rights, health and well being of the marines is a direct threat to the rights of Italy," he reportedly told the court.

Meanwhile the Indian delegation said that "the Italian marines fired their automatic weapons in an irresponsible way, killing two unarmed Indian fishermen on board an Indian vessel, in Indian waters". India said it is “surprised at Italy's arguments in describing the marines as victims, when the real victims are the two killed fishermen and their families.” The 21-judge ITLOS is expected to decide this case by August 24. Following is the report about the written submissions made by India in response to the notification and Italian request for provisional measures which was reported by Live Law yesterday. 

Indian perspective of Enrica Lexie Incident

India terms Italian version of events “a misleading story”. Italian story, according to India, omits several crucial aspects and their silence on those aspects seriously distorts reality. India highlights the fact that the killed fishermen were shot in the head and other was fatally shot in the stomach. India says that the investigation by NIA has collected evidence to the effect that the marines fired twenty rounds at the unarmed fishermen. Contrary to the claim by Italy, India has evidence that the boat was not far from the ship for the marines to assume that those in fishing boat are pirates and the fishing boat did not even closely resemble any pirate skiff. According to India, there was no "incident of navigation" nor any collision between the two ships. India claims to have conducted an in depth investigation and is prepared to exercise its criminal jurisdiction over the marines. India asserts that the case in hand is not covered by Article 97 of the UNCLOS, but rather is about a double murder at sea.

India objects to the description of Sergeant Girone as a "Hostage" and calls it highly inappropriate and offensive, in view of the fact that both marines were twice allowed to travel to Italy at the same time. India holds Italy responsible for the delay in prosecution and said that a party to the dispute cannot first use all possible means to delay the process and then plead victimization of delay. India, in its written submissions, details how Italy was instrumental in delaying the process by filing multiple mutually inconsistent applications before Supreme Court of India.

Objections against grant of Provisional measures

As regards  the application by Italy before the tribunal, to prescribe provisional measures against India, the law on this point is discussed in the written submissions made by India. India asserts that before prescribing provisional measures, Tribunal must satisfy itself that prima facie the Tribunal would have jurisdiction. India has serious doubts whether it has, since the subject matter does not fall within the ambit of convention.  Urgency, which is basic condition for the tribunal to decide provisional measure, according to India, totally lacking in this case. It asserts that Provisional measures are not pure routine, but are and must remain exceptional. Italy has based its request, on a selective, self-serving and patently inaccurate account by suppressing the fact that Italy has filed many abusive and mutually inconsistent applications before Indian Courts.

India holdsItalyresponsible for the delay which it itself complains and says that the marines were treated entirely fairly by Supreme Court, whereas they reneged on undertaking it had made. Italy waited for over three years to bring Arbitration and to introduce Request for provisional measures itself is a proof that there is total absence of urgency. According to India, the request of provisional measures by Italy supposes that the actual situation of marines is so dramatic that the tribunal should prescribe total liberty, security and movement for both of them. India points out that one of the accused, is presently living in Italy, and other lives in comfort of the residence of Italian Ambassador in New Delhi and enjoys quite a comfortable life.

India requests the Tribunal not to grant provisional measures prayed for by the Italy. It says that Italy has betrayed solemn promises made to India and considering Italy's malafide behaviour in the past, grant of provisional measures is highly risky.India examines Italy's record of compliance with international judicial decisions and finds it 'seriously tainted'. India further submits that, the grant of provisional measures, would irremediably jeopardise Indian rights. Saying that such grant would only aggravate the sorrow and distress of the victim, India concludes its written submissions in following words “Suspension of proceedings against marines would constitute injustice to the memory of the victims and to the feelings, rights and interests of the families which have been devastated by the murders, not to speak of the owner of St. Antony which remains stuck in a police port, where it is being held as evidence.”