Italy v India

• Jurisdiction: Derecho Internacional
• Judge: Akl,Heidar,Kulyk,Paik,Wolfrum,Pawlak,Gao,Cot,Chandrasekhara Rao,Gómez-Robledo,Yanai,Kateka,Bouguetaia,Golitsyn,Jesus,Francioni,Ndiaye,Kelly,Attard,Hoffmann,Lucky
• Court: International Tribunal for the Law of the Sea
• Date: 24 August 2015

International Tribunal for the Law of the Sea.

(Golitsyn, President; Bouguetaia, Vice-President; Chandrasekhara Rao, Akl, Wolfrum, Ndiaye, Jesus, Cot, Lucky, Pawlak, Yanai, Kateka, Hoffmann, Gao, Paik, Kelly, Attard, Kulyk, Gómez-Robledo and Heidar, Judges; Francioni, Judge ad hoc)

The Enrica Lexie Incident1

(Request for Provisional Measures)

Italy

and

India

International tribunals — International Tribunal for the Law of the Sea (“ITLOS”) — Provisional measures — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”), Article 290(5) — Prima facie jurisdiction of Annex VII arbitration tribunal — Urgency — Plausibility — Preservation of the respective rights of both Parties — UNCLOS Article 283 — Obligation to exchange views — UNCLOS Article 294 — Whether abuse of legal process when proceedings had been instituted in domestic courts — UNCLOS Article 295 — Exhaustion of local remedies — ITLOS Rules, Article 89(5) — Power of ITLOS to award measures other than those requested in the initial application

Sea — United Nations Convention on the Law of the Sea, 1982 — Crimes committed at sea — Jurisdiction — Flag State — State of nationality of persons killed — Exclusive economic zone (“EEZ”) — Indian sailors killed by fire from marines on board Italian-flagged vessel in the Indian EEZ

State immunity — Officials — Service personnel — Italian marines stationed on Italian merchant ship firing on suspected pirates — Whether immune from the jurisdiction of non-Italian courts

Summary:3The facts:—On 26 June 2015, Italy instituted arbitral proceedings under Annex VII of the United Nations Convention on the Law of the Sea, 1982 (“the Convention” or “UNCLOS”) against India in respect

of an incident involving MV Enrica Lexie and India's subsequent exercise of jurisdiction over the incident. Pending the constitution of the Annex VII arbitration tribunal, on 21 July 2015, Italy submitted a request for provisional measures under UNCLOS Article 290(5)4 to the International Tribunal for the Law of the Sea (“ITLOS”).

The Enrica Lexie, an oil tanker flying the Italian flag, carried on board six marines from the Italian Navy, including Chief Master Sergeant Latorre and Sergeant Girone. According to Italy, on 15 February 2012, when the Enrica Lexie was transiting approximately 20.5 nautical miles off the coast of India, the marines detected an unidentified craft on radar, which was observed to be heading rapidly towards the vessel and on a collision course with the Enrica Lexie. Having assessed that this was the modus operandi consistent with a pirate attack, the Enrica Lexie issued visual and auditory warnings to the craft, and fired shots into the water.

After the incident, when it was en route to Djibouti, Indian authorities requested the Enrica Lexie to change its course to Kochi Anchorage. On 16 February 2012, whilst still at Kochi Anchorage, Indian personnel boarded the Enrica Lexie, carried out investigations, interrogated everyone on board, and obtained some of the vessel's documents. Late on 16 February 2012, pursuant to the orders of the Indian authorities, the Enrica Lexie left Kochi Anchorage and proceeded to the oil terminal of Kochi Port, where she docked. On the same day, the Italian authorities sent a note verbale to India stating that Italy had asserted jurisdiction over the Enrica Lexie, the incident and those on board the Enrica Lexie.

On 19 February 2012, Sergeants Latorre and Girone, who had allegedly fired the shots, were arrested by the Kerala police. The two marines were initially detained in custody and then placed under bail constraints requiring them to remain in Delhi. Sergeant Latorre's bail conditions were relaxed by the Indian Supreme Court in September 2014 to allow him to return to Italy to aid his recovery from a stroke. When the request was initiated, Sergeant Latorre remained in Italy undergoing treatment. Sergeant Girone remained in India; his petition seeking a relaxation of bail conditions in December 2014 to allow him to travel to Italy was later withdrawn.

India claimed that on 15 February 2012 at about 4.30 pm (Indian Standard Time), an Indian fishing boat, the St Antony, was engaged in fishing activity in India's exclusive economic zone (“EEZ”) at a distance of about 20.5

nautical miles off the Indian coast. The St Antony was fired upon by sophisticated automatic firearms by two uniformed persons on board the Enrica Lexie, which was about 200 metres from the boat operating in clear weather. Two fishermen on the St Antony were killed by the bullets fired from the Enrica Lexie. India argued that it was justified in exercising jurisdiction to inquire, investigate and try the accused, given that two of its nationals were killed by fire from the Enrica Lexie while the St Antony had been fishing in the Indian EEZ.

In its Statement of Claim, Italy requested the Annex VII arbitration tribunal to adjudge and declare that India had acted, and was acting, in breach of international law by asserting and exercising jurisdiction over the Enrica Lexie and the Italian marines in connection with the Enrica Lexie incident. Italy alleged that this assertion and exercise of criminal jurisdiction by India was in violation of India's obligation to respect the immunity of the Italian marines as State officials exercising official functions. Italy further contended that it was Italy that had exclusive jurisdiction over the Enrica Lexie and over the Italian marines in connection with this incident. Italy asserted that India should cease to exercise any form of jurisdiction over the Enrica Lexie incident and the Italian marines, including any measure of restraint with respect to Sergeants Latorre and Girone. Finally, it argued that India had violated its obligation under the Convention to cooperate in the repression of piracy.

In the provisional measures proceedings, Italy requested ITLOS to order India, pending the constitution of the Annex VII arbitration tribunal, to refrain from taking or enforcing any judicial or administrative measures against Sergeants Latorre and Girone in connection with the Enrica Lexie incident, and from exercising any other form of jurisdiction over that incident. It also asked ITLOS to order India to take all measures necessary to ensure that restrictions on the liberty, security and movement of the marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy, and Sergeant Latorre to remain in Italy, throughout the duration of the Annex VII proceedings. Italy maintained that the dispute with India concerned the interpretation and application of UNCLOS Articles 2(3), 27, 33, 56, 58, 87, 89, 92, 94, 97, 100 and 300.

India requested ITLOS to reject Italy's submission and refuse to prescribe any provisional measure in the case. India argued that the subject matter of the dispute did not fall within the ambit of the Convention.

Held (by fifteen votes to six, Vice-President Bouguetaia and Judges Chandrasekhara Rao, Ndiaye, Cot, Lucky and Heidar dissenting):—(1) Italy and India must both suspend all court proceedings and refrain from initiating any new proceedings which might aggravate or extend the dispute submitted to the Annex VII arbitration tribunal or which might jeopardize or prejudice the implementation of any decision rendered by the arbitration tribunal.

(a) Under UNCLOS Article 290(5), an Annex VII arbitration tribunal would prima facie have jurisdiction over the dispute. A dispute appeared to exist between the Parties concerning the interpretation or application of the Convention (paras. 35–54).

(b) The requirements of UNCLOS Article 283(1)5 were satisfied. Both Parties agreed that an extensive exchange of views had taken place and that this had not led to an agreement between the Parties regarding the settlement of the dispute by negotiation or other peaceful means (paras. 55–60).

(c) The requirement under UNCLOS Article 295 regarding the exhaustion of local remedies was not to be addressed in the provisional measures phase since the very nature of the dispute concerned the exercise of jurisdiction over the Enrica Lexie (paras. 61–7).

(d) Italy's initiation of a case at the international level did not constitute an abuse of legal process under UNCLOS Article 294. UNCLOS Article 290 applied independently of any other procedures instituted at the domestic level. Even if proceedings had been instituted at the domestic level, this did not deprive a State of recourse to international proceedings. Italy was therefore entitled to have recourse to the procedures established under Article 290 (paras. 68–73).

(e) In accordance with Article 290(5) read in conjunction with Article 290(1), provisional measures should be appropriate under the circumstances to preserve the respective rights of both Parties. The existence of the respective rights of the Parties to the dispute in the provisional measures proceedings did not have to be established definitively. Both Parties had sufficiently demonstrated that the rights they sought to protect regarding the Enrica Lexie incident were plausible (paras. 74–85).

(f) Pursuant to Article 290(5), provisional measures could be prescribed only if the urgency of the situation so required. The continuation of existing court proceedings or initiation of new court proceedings by either Party would prejudice rights of the other Party. Italy's submissions, if accepted, would not equally preserve the respective rights of both Parties until the constitution of the Annex VII arbitration tribunal. The provisional measures in respect of the situation of the two marines would also prejudice the decision of the arbitration tribunal to be constituted under Annex VII because they touched upon issues related to the merits of the case (paras. 86–126).

(g) In accordance with Article 89(5) of its Rules, ITLOS could prescribe measures different in whole or in part from those requested (paras. 127–37).

(2) Pursuant to Article 95(1) of the...