The Italian Republic v. The Republic of India

At a glance

Parties

The Italian Republic v. the Republic of India (the "Enrica Lexie" Incident)

Case no.

PCA Case No. 2015-28

Forum and rules

Arbitration under Annex VII to UNCLOS; PCA as Registry; Rules of Procedure of 19 January 2016 (as amended)

Treaty

United Nations Convention on the Law of the Sea (UNCLOS)

Tribunal

Judge Vladimir Golitsyn (President), Judge Jin-Hyun Paik, Judge Patrick Robinson, Professor Francesco Francioni, Dr. Pemmaraju Sreenivasa Rao (replaced Judge Patibandla Chandrasekhara Rao, who died on 11 October 2018)

Sector

Law of the sea; anti-piracy protection of merchant shipping

Outcome

Award of 21 May 2020: the Marines enjoy immunity and India must cease to exercise criminal jurisdiction over them (3–2). Italy breached India's freedom of navigation (Articles 87(1)(a) and 90), so India is entitled to compensation. All other claims and counter-claims were dismissed.

Amount

No amount was fixed. India is entitled to compensation for loss of life, physical harm, material damage (including to the "St. Antony") and moral harm. The Parties were to negotiate the amount, and the Tribunal kept jurisdiction for one year. Each Party bears its own costs.

The dispute

On 15 February 2012 two Italian Navy Marines, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, were serving in a Vessel Protection Detachment on the Italian-flagged oil tanker \"Enrica Lexie\". About 20.5 nautical miles off the coast of Kerala, in India's exclusive economic zone, they fired on an approaching craft that they took to be a pirate vessel. India says the craft was the Indian fishing boat \"St. Antony\" and that two fishermen on board, Mr. Jelastine Valentine and Mr. Ajeesh Pinku, were killed. Indian authorities had the tanker go to Kochi, boarded it, detained it until May 2012, and arrested the Marines and prosecuted them for murder. Italy claimed that India had breached UNCLOS: the freedom of navigation, flag-State jurisdiction, Article 97, the duty to cooperate against piracy, and the Marines' immunity as State officials. India objected to jurisdiction over the immunity claim. It also brought counter-claims under Articles 56, 58(3), 87, 88 and 90.

Key holdings

1. The dispute concerns which State is entitled to exercise jurisdiction over the incident, and it concerns the interpretation or application of UNCLOS. The Tribunal has jurisdiction (4–1, Robinson dissenting). India's counter-claims are admissible (unanimous). Award ¶ 1094(A)(1)–(3)
2. Articles 2(3), 56(2) and 58(2) do not apply, because India enforced its jurisdiction over the Marines only in its internal waters and on land. But immunity is an incidental question that necessarily arises in deciding which State may exercise jurisdiction, so the Tribunal has jurisdiction to decide it (3–2). Award ¶¶ 798, 808–811
3. The Marines were Italian State officials acting in an official capacity, and they enjoy immunity ratione materiae under customary international law. Any 'territorial tort' exception would not apply, because the Marines were not on Indian territory when they acted, and a ship is not territory of its flag State. India is precluded from exercising jurisdiction and must take the steps needed to cease its criminal jurisdiction over the Marines. The Tribunal noted Italy's commitment to resume its own criminal investigation (3–2). Award ¶¶ 855, 862, 869–874, 888–889
4. India did not breach Articles 87(1)(a), 92 or 100. Article 97 does not apply. Article 59 does not apply, because the Convention attributes rights and jurisdiction to both States (unanimous). Award ¶¶ 909–910, 1094(B)(1)
5. Italy did not violate India's sovereign rights under Article 56 or the due-regard obligation in Article 58(3) (3–2). It did not infringe Article 88 (unanimous). The Marines acted against a perceived pirate attack in a single, isolated incident; they did not target fishing activity. Award ¶¶ 953–955, 980–981, 1074–1077
6. The "St. Antony" was an Indian vessel even though it was unregistered under the Merchant Shipping Act and flew no flag. By shooting at it, Italy physically interfered with its navigation and breached Articles 87(1)(a) and 90 (unanimous). Award ¶¶ 1025, 1034, 1041–1043
7. The finding of breach is adequate satisfaction for the injury to India's non-material interests. India is also entitled to compensation for loss of life, physical harm, material damage and moral harm suffered by the crew of the "St. Antony". The Parties are to consult on the amount; the Tribunal retains jurisdiction for one year. Each Party bears its own costs. Award ¶¶ 1087–1093

Procedural history

1. 26 June 2015Italy institutes the arbitration by serving its Notification and Statement of Claim on India.
2. 24 August 2015ITLOS prescribes provisional measures: both States are to suspend all court proceedings.
3. 19 January 2016The Tribunal adopts its Rules of Procedure and Procedural Order No. 1 on the timetable for provisional measures.
4. 29 April 2016Order on provisional measures: the Parties are to cooperate to relax Sergeant Girone's bail conditions so that he can return to Italy.
5. 30 July 2018Procedural Order No. 5: the Tribunal calls five persons to testify as its own witnesses.
6. 26 November 2018India appoints Dr. Pemmaraju Sreenivasa Rao after the death of Judge P. Chandrasekhara Rao on 11 October 2018.
7. 8–20 July 2019Hearing on jurisdiction and merits at the Peace Palace, The Hague.
8. 21 May 2020Award, with a joint dissenting opinion of Robinson and Sreenivasa Rao and separate opinions by each of them.
9. 2 July 2020Extracts of the Award published in advance.
10. 12 October 2021Order closing the proceedings (listed; its text is not included).

Tribunal, counsel and experts

Decided by

• Vladimir Golitsyn President — appointed by the appointing authority (appointed by the President of ITLOS)
• Jin-Hyun Paik Co-arbitrator — appointed by the appointing authority (appointed by the President of ITLOS)
• Patrick L. Robinson Co-arbitrator — appointed by the appointing authority (appointed by the President of ITLOS; dissented)
• Francesco Francioni Co-arbitrator — appointed by the claimant
• Patibandla Chandrasekhara Rao Co-arbitrator — appointed by the respondent (died on 11 October 2018)
• Pemmaraju Sreenivasa Rao Co-arbitrator — appointed by the respondent (replaced Judge Chandrasekhara Rao on 26 November 2018; dissented in part)

For the claimant

Ministry of Foreign Affairs and International Cooperation, Italy · Twenty Essex Chambers · Freshfields Bruckhaus Deringer · Ida Caracciolo · Suhail Dutt · Callista Harris · Kevin Lee · Mauro Politi · Attila Tanzi · Diljeet Titus

For the respondent

Ministry of External Affairs, India · Eversheds Harry Elias LLP · Alain Pellet · Benjamin Samson · Ludovic Legrand · Héloise Bajer-Pellet

Experts

Deepak Verma (claimant)

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Keywords

• Enrica Lexie
• St. Antony
• Italian Marines
• UNCLOS Annex VII
• immunity ratione materiae
• State officials
• territorial tort exception
• piracy
• vessel protection detachment
• freedom of navigation
• flag State jurisdiction
• Article 97 incident of navigation
• exclusive economic zone
• due regard
• nationality of ships
• incidental jurisdiction
• satisfaction
• compensation

Summary generated with AI from the published documents — refer to the award for the authoritative text.