THE “ENRICA LEXIE” INCIDENT—The Italian Republic v. The Republic of India—Is the Award Based on Sound Legal Footing?

Permanent Court of Arbitration located in The Hague, Netherlands while ruling on the Enrica Lexie incident last week found that India has no jurisdiction over the Italian marines Salvatore Girone and Massimiliano Latorre who had shot two fishermen aboard St. Antony off the coast of India in 2012. However, the court ruled Italy should compensate India for damages incurred by the shooting. 

An Overview of the Award: 

The Arbitral Tribunal comprising of five judges: H.E. Judge Vladimir Golitsyn (President), H.E. Judge Jin-Hyun Paik, H.E. Judge Patrick Robinson, Professor Francesco Francioni, and Dr. Pemmaraju Sreenivasa Rao decided on various facets of the case as follows: 

1. In Relation to Jurisdiction and Admissibility 

The Tribunal found by four votes to one that there was a dispute between the Parties as to which State is entitled to exercise jurisdiction over the incident of February 15, 2012, involving the “Enrica Lexie” and the “St. Antony”, and that the dispute concerned the interpretation or application of the United Nations Convention on the Law of the Sea (Convention). 

The Tribunal found by four votes to one that the Arbitral Tribunal had jurisdiction over the dispute. 

2. In Relation to the Merits of the Dispute Between the Parties 

The Tribunal decided, by three votes to two that the Marines were entitled to immunity in relation to the acts they had committed during the incident of February 15, 2012, and that India is precluded from exercising its jurisdiction over the Marines. 

The Tribunal further decided, by three votes to two, taking note of the commitment expressed by Italy during the proceedings to resume its criminal investigation into the events of February 15, 2012, that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies were required. The Tribunal further decided by three votes to two, that Italy has not violated India’s sovereign rights under Article 56 of the Convention that deals with Rights, jurisdiction and duties of the coastal State in the exclusive economic zone; by three votes to two, that Italy has not violated Article 58, paragraph 3, of the Convention that deals with Rights and duties of other States in the exclusive economic zone; and unanimously, that Italy has not infringed on India’s rights under Article 88 of the Convention dealing with Reservation of the high seas for peaceful purposes. 

The Tribunal, however, unanimously decided that by interfering with the navigation of the “St. Antony” Italy has acted in breach of Article 87, paragraph 1, subparagraph (a) that deals with Freedom of navigation in the high seas, and Article 90 of the Convention concerning Right of navigation. 

Furthermore, the Tribunal unanimously decided since Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention it constituted adequate satisfaction for the injury to India’s non-material interests. As a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention, it was held India is entitled to payment of compensation in connection with 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”, which by its nature could not be made good through restitution.  

The Parties were also invited to consult with each other with a view to reaching an agreement on the amount of compensation due to India. The Arbitral Tribunal clarified that it shall retain jurisdiction in the event either Party or both Parties wished to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India. It was further clarified that the Arbitral Tribunal would fix a timetable for further proceedings, and that, should no such application be received within one year after the date of the present Award, the proceedings shall be closed. 

Source: Award Extracts for Advance Publication 2 July 2020 

Views of the Indian Legal Fraternity: 

The judgment by the international court claiming Italian marines enjoyed immunity since they were serving their country could set a dangerous precedent, said senior jurist PS Narasimha in his interview to Hindustan Times. 

In his opinion carried by the national daily newspaper, the Tribunal was correct insofar as it observed that the act of shooting by the marines, which caused St. Antony to change direction and head back to shore, was in violation of India’s freedom of navigation. However, he feels, the Tribunal’s finding that immunity was applicable to the marines in these facts and that they were ‘State officials of the Italian Republic’ and were acting in their official capacity as officers of the Italian Navy is questionable. Narasimha, further adds, “this approach is rather dangerous for the serious implications they entail in how countries are expected to act in similar situations in the future.” 

While speaking to BW Legalworld Sameer Jain the managing partner of PSL Advocates & Solicitors said, “[t]he decision of the Permanent Court of Arbitration in PCA Case No: 2015-28 – The Italian Republic v. The Republic of India delivered on 2 July 2020, is, in my view, based on sound legal reasoning. It is most interesting to note that in a case filed by the Italian Republic, the PCA has held that it is the Republic of India which is entitled to compensation. The reason of not allowing India to proceed with the criminal case against the marines, based on ‘Immunity’ as per Articles 2(3), 56(2), 58(2) and 100 of United Nations Convention on the Law of Seas (‘UNCLOS’), is also correct. What remains to be seen is the amount of compensation which would be agreed by both the ‘Republics’ else, the same would be referred again to the PCA – as the proceedings are still not closed. Hopefully, we will have a closure soon.” 

Given the opinions shared by the distinguished members of the legal fraternity, it looks like the Enrica Lexie incident has inadvertently opened a can of worms warranting an in-depth legal discourse on Penal jurisdiction in matters of collision or any other incident of navigation as envisaged in Article 97 of UNCLOS 1982.