International Tribunal for the Law of the Sea
Date of Order: 24 August 2015
Italy instituted arbitral proceedings with the International Tribunal for the Law of the Sea under Annex VII to the United Nations Convention on the Law of the Sea against India in respect of the dispute concerning the ‘Enrica Lexie’ incident. According to the statement of claim of Italy, on 15 February 2012 when the MV Enrica Lexie was transiting approximately 20.5 nautical miles off the coast of Kerala, India en route from Sri Lanka to Djibouti an unidentified craft was detected on radar approximately 2.8 nautical miles away and was observed heading rapidly towards the MV Enrica Lexie. As the craft drew closer, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone assessed that it was on collision course with the Enrica Lexie and that this modus operandi was consistent with a pirate attack. The craft continued to head towards the Enrica Lexie despite sustained visual and auditory warnings from the Enrica Lexie and the firing of warning shots into the water. Eventually, after apparent attempts to approach the Enrica Lexie, the craft turned away and headed towards the open sea.
Italy filed a request for the prescription of provisional measures under article 290, paragraph 5, of the Convention. Italy requested the arbitral tribunal to be constituted to adjudge and declare that:
(a) India has acted and is 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.
(b) The assertion and exercise of criminal jurisdiction by India is in violation of India’s obligation to respect the immunity of the Italian Marines as State officials exercising official functions.
(c) It is Italy that has exclusive jurisdiction over the Enrica Lexie and over the Italian Marines in connection with the Enrica Lexie Incident.
(d) India must cease to exercise any form of jurisdiction over the Enrica Lexie Incident and the Italian Marines, including any measure of restraint with respect to Sergeant Latorre and Sergeant Girone.
(e) India has violated its obligation under the Convention to cooperate in the repression of piracy.
Italy submitted that the dispute concerned an incident that occurred on 15 February 2012 approximately 20.5 nautical miles off the coast of India involving the MV Enrica Lexie, an oil tanker flying the Italian flag, and India had no jurisdiction over the incident, and over two Italian Marines from the Italian Navy, Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, who were on official duty on board the Enrica Lexie at the time of the incident. Italy argued that the law and the facts of the present case manifestly show that the Annex VII tribunal under constitution will have more than simply prima facie jurisdiction over the merits of this dispute.
Italy requested that the Tribunal prescribe the following provisional measures:
(a) India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident; and
(b) India shall 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 proceedings before the Tribunal.
Italy sought the prescription of provisional measures on the following two principal grounds:
(a) the serious and irreversible prejudice that will be caused to its rights under UNCLOS if Indian jurisdiction continues to be exercised over the Enrica Lexie Incident; and
(b) the serious and irreversible prejudice to Italy’s rights if its Marines continue to be subjected to Indian jurisdiction, in particular, to measures restricting their liberty and movement, notwithstanding the commencement of international arbitration and the irreparable consequences for personal health and well-being that such restrictions will or are likely to cause;
The Republic of India requested the International Tribunal for the Law of the Sea to reject the submissions made by the Republic of Italy and to refuse prescription of any provisional measures.
Article 290, paragraph 5, of the Convention provide that, pending the constitution of an arbitral tribunal, the Tribunal may prescribe, modify or revoke provisional measures in accordance with that article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Before prescribing provisional measures, the Tribunal has to be of the view that a dispute appeared to exist between the Parties concerning the interpretation or application of the Convention and hence the tribunal would prima facie have jurisdiction over the dispute. Both Parties agreed that an extensive exchange of views had taken place and that this did not lead to an agreement between the Parties regarding the settlement of the dispute by negotiation or other peaceful means. Hence the Tribunal was of the view that the requirements of article 283, paragraph 1, of the Convention were satisfied.
The Tribunal held that article 290 of the Convention applied independently of any other procedures that may have been instituted at the domestic level and Italy was therefore entitled to have recourse to the procedures established in that article and, if proceedings were instituted at the domestic level, this did not deprive a State of recourse to international proceedings. Under article 290, paragraph 1, of the Convention, the Tribunal might prescribe any provisional measures which it considered appropriate under the circumstances to preserve the respective rights of the parties to the dispute. It was not to settle the claims of the Parties in respect of the rights and obligations in dispute and to establish definitively the existence of the rights which they each sought to protect. Before prescribing provisional measures, the Tribunal need not concern itself with the competing claims of the Parties, and that it needed only to satisfy itself that the rights which the parties claimed and sought to protect were at least plausible. The Tribunal found that both Parties had sufficiently demonstrated that the rights they sought to protect regarding the Enrica Lexie incident were plausible.
Italy also argued that the two Marines were part of its armed forces and therefore as State officials exercising official functions on board the Enrica Lexie pursuant to lawful authority, they were immune from proceedings in India. But the tribunal observed that the question of the status of the two Marines related to the issue of jurisdiction and hence could not be decided by the Tribunal at the stage of provisional measures.
The Tribunal took into consideration various factors. It observed that its order must protect the rights of both Parties and must not prejudice any decision of the arbitral tribunal. The Parties disagreed on which State has jurisdiction to decide on the Enrica Lexie incident. It was argued by India that the Supreme Court had actually stayed its proceedings and that until the tribunal is constituted and hears the matter, there was no compelling assumption that the matter will be taken up and that there will be an adverse decision against Sergeant Latorre and Sergeant Girone. The Tribunal observed that considerations of humanity must apply in the law of the sea as they do in other areas of international law (M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment, ITLOS Reports 1999, p. 10). The Tribunal was aware of the grief and suffering of the families of the two Indian fishermen who were killed and also the consequences that the lengthy restrictions on liberty entail for the two Marines and their families. The Tribunal observed that the order in no way prejudged the question of the jurisdiction of the arbitral tribunal to deal with the merits of the case or relating to the merits themselves, and leave unaffected the rights of Italy and India, respectively, to submit arguments in respect of the questions.
Thus the Tribunal, by 15 votes to 6, ordered, pending a decision by the arbitral tribunal, Italy and India to suspend all court proceedings and to refrain from initiating new ones which might aggravate or extend the dispute submitted to the arbitral tribunal or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render