[This guest post is authored by Sahibnoor Singh Sidhu. He is currently pursuing the B. A. LL.B. (Hons.) course [Batch of 2021] at the Jindal Global Law School, Sonepat]

The Permanent Court of Arbitration Delivers its Award on the “Enrica Lexie Incident” between India and Italy

On 2 July 2020, the arbitral tribunal of the Permanent Court of Arbitration at Hague delivered its final award on jurisdiction and merits regarding the dispute over the “Enrica Lexie” incident between Italy and India.

The governments of both the nations have interpreted this to be a victory. However, it is important to understand the actual, legal basis of the award and to understand it in holistic manner, instead of choosing parts where the tribunal agreed with either of the parties.

The PCA has only released an excerpt from the award and the reasoning of the tribunal in reaching these decisions can only be analysed once the entire award is released for the public at large. Accordingly, in this post, I have provided some preliminary observations based on the excerpt available.

Background

The dispute arose on 15 February 2012 when two Italian marines Massimiliano Latorre and Salvatore Girone on board an oil tanker flying the Italian flag- “Enrica Lexie” allegedly killed two Indian fishermen on board an Indian vessel- ‘St. Antony’ about 20.5 nautical miles off the coast of India. India had initially arrested the Italian vessels and marines on board; and initiated criminal proceedings against them for the murder of the two Indian fishermen.

The arbitral proceedings were initiated under Annex VII, Article 1 of the United Nations Convention on the Law of the Sea (“UNCLOS”) when Italy sent a notice to India on 26 June 2015. Pending the constitution of an arbitral tribunal, the International Tribunal on the Law of the Sea (“ITLOS”) had passed via an order on 24 August 2015 the provisional measure,, on Italy’s request, to suspend all court proceedings in both the countries that might aggravate the dispute. India and Italy were also directed to submit a compliance report to the President of the Tribunal by 24 September 2015.

A five-member arbitral tribunal was subsequently set up at the Permanent Court of Arbitration (“PCA”). By an order dated 29 April 2016, the PCA Tribunal also directed both nations to cooperate to achieve relaxation for the bail of Sergeant Girone and an obligation on Italy to return him back to India if the tribunal finds that India has jurisdiction over him in respect of the “Enrica Lexie” case.

Under its order dated 2 July 2020, the arbitral tribunal delivered its final award on jurisdiction and merits, except for the quantum of compensation on.

Award on Jurisdiction

Italy maintained that the arbitral tribunal had jurisdiction as the matter at hand required the interpretation of various articles of the UNCLOS while India argued that it didn’t. The tribunal found that it indeed does have jurisdiction over the dispute regarding the incident that happened between “Enrica Lexie” and “St. Antony”. It also found that it has jurisdiction  on the question of whether the two Marines, who had been arrested by India and later returned to Italy after the order of the tribunal on 29 April 2016, had immunity against criminal proceedings in India.

Award on Merits

Having established its jurisdiction over the issues in dispute, the tribunal made an award on the merits of the case.

It was found that India had not violated Italy’s freedom of navigation in the high seas or change the state flag of the oil tanker and, as such, had not violated Articles 87(1)(a) and 92(1) of the UNCLOS.

Italy had claimed that under Articles 97(1) and 97(3) India could not have arrested the ship or initiated penal proceedings against the marines. The tribunal held these to not be applicable since there was no accident or any form of interference with the navigation of the vessel in issue, a pre-requisite for Article 97. The five-member tribunal also found that India had not violated its duty under Article 100 of the UNCLOS to cooperate with Italy to counter piracy on the high seas.

In respect of the two Italian Marines the tribunal held in favour of Italy’s position that the Marines enjoyed immunity for their actions as state officials exercising official functions. The tribunal also observed that Italy had not violated its duties to use high seas for peaceful purposes (Article 100, UNCLOS) or the sovereignty of India in the exclusive economic zone as per Article 56 or Article 58 of the UNCLOS. The tribunal did find, however, that Italy had acted in breach of Article 87(1)(a) and Article 90 of the UNCLOS by interfering with the freedom and right of navigation of the Indian vessel “St. Antony.”

As a result of the above violations, the tribunal noted that Italy was liable to compensate India in “connection with the loss of life, physical harm, material damage to property (including to the “St. Antony”) and moral harm suffered by the captain and other crew members of the “St. Antony.” However, it did not decide the quantum of compensation but rather invited both parties to consult on the same and if they are not able to a come to a consensus, then they can apply to the tribunal for the quantification of the compensation.

Comments

The UNCLOS is a relatively recent convention and ITLOS has only had a limited opportunity to contribute to the jurisprudence of the Law of the Sea in the twenty-nine cases that have been referred to it by various parties. Hence, almost every award made by tribunals under the UNCLOS has a tendency to set a precedent, which is why I believe this is a relatively dangerous one.

Firstly, the fishermen posed no threat to the vessel “Enrica Lexie.” Hence, to allow the officers-in-charge of the vessel to have immunity against any criminal proceedings in India is a dangerous precedent. Especially since the act in question was committed within the exclusive economic zone of India and against Indian citizens on board an Indian vessel. This may encourage military vessels to act without impunity in the way they deal with civilian vessels on the high seas.

Secondly, while there is no obligation on the tribunal, in the interest of justice and to prevent further delay, the tribunal should have by itself quantified the compensation that Italy owed to India for the various breaches and damages. The efficiency of the UNCLOS to resolve such disputes is based on multiple factors; including how long it takes to resolve a dispute. Hence, by giving an additional year to the parties to decide the quantum of compensation, delays the ‘effective’ time taken by the tribunal to dispose the matter.

The tribunal has acted a bit zealously in assuming jurisdiction over the dispute. The tribunal rejected that India violated any of the articles of the UNCLOS. However, the tribunal seems to have gone beyond its mandate within the UNCLOS to make the observation that the Marines still enjoyed immunity. Furthermore, the tribunal also decided which country will have the right to proceed with criminal investigation, although no article of the UNCLOS provides for such relief. This also goes against Article 27(1)(a) [1]of the UNCLOS which gives the coastal state the power to investigate and make arrests when the consequences of the crimes committed on board the foreign ship extend to the coastal state, as in this incident where the actions on board “Enrica Lexie” led to the death of two Indian citizens.

There are subtle hints to indicate that the PCA has overstepped its jurisdiction. Indeed, this raises further questions on the efficacy of arbitration before the PCA as a mode of dispute resolution under the UNCLOS and the whether other nations in dispute would want to choose the same. It must be kept in mind that arbitration is based on party autonomy and if the tribunal assumes jurisdiction too energetically, it might discourage parties from submitting disputes to the PCA.

Concluding remarks

As per the rules of procedure for the arbitration in question, as amended by provisional Order No. 7 (dated 16 May 2019), both parties have been given the opportunity to consider whether they want certain parts of the award to stay confidential. I have my fingers crossed that the parties do not refuse to make the award public. This award has a high potential to set a long lasting precedent for the limits of immunity of officers on-board foreign ships and their interactions with citizens of another coastal state.

[1] UNCLOS, Article 27(1): The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:

(a) if the consequences of the crime extend to the coastal State;