“Both Italy and India [should] suspend all court proceedings and refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal,” The International Tribunal for the Law of the Sea (ITLOS) directed yesterday.
Italy had initiated arbitral proceedings under Annex VII to the United Nations Convention of the Law of the Sea against India seeking the extradition of Sgt Massimiliano Latorre and Sgt Salvatore Girone, who are accused of shooting dead two Indian fishermen off the coast of Kerala in southern India on 15 February 2012.
Reportedly mistaking the fishermen for pirates, the marines, who were posted as guards on the tanker Enrica Lexie, shot the pair dead onboard their fishing vessel St Antony, which was en route to Egypt from Singapore.
Although now out on bail, Sgt Girone has not been allowed to leave India, while Sgt Latorre has since been allowed to return home to Italy on medical grounds.
Italy has claimed that the St Antony was in international waters at the time of the incident and therefore the marines should be tried in Italy. India, however, insists that the shooting took place in Indian waters.
The tribunal has rejected Italy’s request to allow Sgt Girone to return to Italy, observing that it does not consider the plea to be appropriate.
Both countries have been asked to submit initial reports by no later than 24 September.
“Much would depend on where exactly the incident took place; whether in territorial waters or high seas,” K Murali Pany, managing partner of Singapore-based law firm Joseph Tan Jude Benny, told IHS Maritime.
A coastal state may exercise criminal jurisdiction onboard a foreign ship passing through territorial waters if the consequences of the crime extends to the coastal state. However, the phrase “consequences of crime” is quite broad, Pany observed.
“Since Indian citizens were killed, this may provide India with a basis for asserting jurisdiction,” Pany said.