Introduction
On June 26, 2015, the Italian Republic (Italy) commenced arbitral proceedings under the United Nations Convention on the Law of the Sea (UNCLOS) by serving on the Republic of India (India) a Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim (Notification and Statement of Claim) in respect of the dispute concerning the Enrica Lexie incident. On July 2, 2020, having issued its Award to Italy and India (the Parties), the Arbitral Tribunal (Tribunal) published the operative part or the “dispositive” of the Award at the Permanent Court of Arbitration, which acts as registry for the proceedings.
Background
The dispute arises from the Enrica Lexie incident, which occurred 20.5 nautical miles off the coast of India and which relates to the February 15, 2012 shooting by two Marines from the Italian Navy, namely Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone (Marines). The Marines were serving as a security force on board the Enrica Lexie to repress maritime piracy. The Enrica Lexie was an Italian-flagged oil tanker owned by an Italian company and operated by an Italian national. The gunfire killed two Indian fishermen. Following the deaths, the Marines re-entered the jurisdiction of India, which detained them and exercised criminal jurisdiction over them. In 2014, the Indian Supreme Court permitted Sergeant Latorre to return to Italy on medical grounds, while Sergeant Girone remained in India until 2016.
Italy made requests for the prescription of provisional measures. On July 21, 2015, pending the constitution of the Tribunal, the International Tribunal for the Law of the Sea prescribed the Parties to suspend all court proceedings that may aggravate or extend the dispute, or jeopardize or prejudice the conclusion of any decision rendered by the Tribunal.Footnote 1 On April 29, 2016, the duly constituted Tribunal ordered the Parties to cooperate, including in the proceedings before the Indian Supreme Court to determine bail conditions of Sergeant Girone, and confirmed Italy's obligation to return Sergeant Girone to India in the event the Tribunal finds India's jurisdiction over him.Footnote 2 The Indian Supreme Court passed an Order on May 26, 2016, permitting Sergeant Girone to return to Italy subject to conditions.Footnote 3
Issues
On the Merits, Italy claimed that the incident occurred when the Enrica Lexie was exercising freedom of navigation when it departed Sri Lanka destined to Egypt. Italy contended that it had exclusive flag State jurisdiction over the Enrica Lexie and the Marines enjoyed immunity for being Italian State Officials, which India had violated by detaining the Enrica Lexie, conducting an investigation on board and instituting criminal proceedings against the Marines.Footnote 4 Fundamentally, Italy asserted that the dispute before the Tribunal revolved around two issues. First, which state is entitled under UNCLOS to exercise jurisdiction over the Enrica Lexie, and second, the legality of India's subsequent exercise of criminal jurisdiction over the Marines under UNCLOS.
India suggested that, while the incident arose from actions on board the Italian ship named the Enrica Lexie, it should more accurately be referred to as the “St. Antony incident” since the subject matter of the case is the killing of two Indian fishermen on board the Indian ship named the St. Antony.Footnote 5 India stated that the fishermen were legitimately exercising their right to fish in India's Exclusive Economic Zone (EEZ) on board the St. Antony and were killed by rifle fire from the Marines stationed on the Enrica Lexie.Footnote 6 Subsequently, the case concerned entitlement of the Marines to immunity from the criminal proceedings of India. Accordingly, India contested the jurisdiction of the Tribunal over the dispute arguing that it did not arise from the interpretation or application of UNCLOS, including the principle of exclusive flag state jurisdiction, but rather from general international law involving the question of the sovereign immunity of the Marines.Footnote 7
The Tribunal examined five issues: (1) the existence of the Tribunal's jurisdiction and admissibility of the claims made; (2) the compatibility with UNCLOS of India's Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 and the 1981 Notification ( Indian Maritime Zones Law); (3) India's alleged breach of Part VII of UNCLOS concerning the High Seas and Piracy; (4) India's alleged violation of the immunity of the Marines and; (5) India's counterclaims alleging Italy's breach of UNCLOS Parts V and VII concerning the EEZ and the High Seas.
Jurisdiction
The Tribunal considered that the Parties disagreed about which state may exercise jurisdiction over the incident in question,Footnote 8 which involved the Parties’ differing interpretation or application of the provisions of UNCLOS, including Articles 56, 58, 59, 87, 92, 97, 100, and 300, and the question of state immunity of the Marines.Footnote 9 Accordingly, the Tribunal held that the dispute related to the interpretation or application of UNCLOS, which it had jurisdiction to adjudicate. In finding that it had jurisdiction, the Tribunal addressed and decided two preliminary issues: the compatibility of the Indian Maritime Zones Law with UNCLOS and the state immunity of the Italian Marines. These two issues are briefly discussed below.
Indian Maritime Zones Law
First, the Tribunal found that India's exercise of criminal jurisdiction was valid and compatible with UNCLOS since it was based on the principles of passive personality and territoriality, rather than the Indian Maritime Zones Law.Footnote 10 Consequently, the Tribunal dispensed with the need to address Italy's claim of incompatibility of the Indian Maritime Zones Law with UNCLOS.Footnote 11
India objected to Italy's claim that the Indian Maritime Zones Law was incompatible with UNCLOS on the ground that such claim did not exist between the Parties at the date of the filing of the Notification and Statement of Claim.Footnote 12 Italy submitted that, prior to the filing of the Notification and Statement of Claim, a dispute existed “on the extension of India's penal jurisdiction beyond the territorial sea” and concerned the incompatibility of the Indian Maritime Zones Law with regard to Articles 33(1), 56(1), 56(2), 58(2), 87(1)(a) and/or 89 of UNCLOS.Footnote 13 Italy further claimed that the interpretation of these instruments adopted by the Indian Supreme Court was inconsistent with UNCLOS.Footnote 14 Finally, Italy argued that even if its claims were new, as India suggested, they would still be admissible.Footnote 15
Immunity
Second, the immunity of the Marines was upheld, which precluded India's exercise of criminal jurisdiction over them.Footnote 16 The Tribunal confirmed concurrent jurisdiction of the Parties over the incident and declared that the Marines were exercising their official functions on board the Enrica Lexie under the apprehension of the threat of piracy.Footnote 17 The Tribunal directed the cessation of jurisdiction by India over the Marines in light of Italy's commitment to resume its criminal investigation with respect to the incident.Footnote 18
Italy had submitted that the immunity enjoyed by the Marines from India's criminal jurisdiction concerned Articles 2(3), 56(2) and 58(2) of UNCLOS, and apply as “immunity by renvoi.”Footnote 19 Italy stated the issue was “sufficiently connected to the real issue in the case to come within the scope of Article 288(1)” of UNCLOS.Footnote 20 Italy also invoked Article 297(1) of UNCLOS to argue in favour of extending the Tribunal's jurisdiction “established in accordance with Part XV of UNCLOS beyond Article 288(1)” to other sources of law.Footnote 21
India argued that the entire dispute was beyond the Tribunal's jurisdiction because settling the core issue of jurisdiction required a decision on the Marines’ immunity, which belonged “to general (customary) international law on immunities of State officials” and did not relate to the application and interpretation of UNCLOS.Footnote 22 Also, India rejected Italy's renvoi argument on the ground that it would “abusively stretch the meaning” of “other rules of international law” in Article 2(3) of UNCLOS; “the rights and duties of other States” in Article 56(2) of UNCLOS; and “other pertinent rules of international law” in Article 58(2) of UNCLOS.Footnote 23
The Tribunal found that the issue of the immunity of the Marines was “an incidental question that necessarily presents itself in the application of [UNCLOS] in respect of the dispute before it.”Footnote 24 Further, the Tribunal upheld India's claim of inapplicability of Articles 2(3), 56(2), 58(2) and 297(1) of UNCLOS to this dispute since India exercised jurisdiction over the Marines only in the Indian internal waters and on land, rather than the Indian territorial sea or EEZ.Footnote 25 Also, the Tribunal negated the applicability of Article 95 (immunity of warships) and Article 96 (immunity of ships used only on government non-commercial service) of UNCLOS, as they do not address the immunity of state officials.Footnote 26
Provisions on the High Seas
Italy also claimed that India's conduct breached: (1) Article 87 of UNCLOS (Freedom of the High Seas), by allegedly perpetrating a “ruse” in order to bring the Enrica Lexie into Indian territorial waters and interfering with Italy's freedom of navigation for purposes of exercising jurisdiction over the ship;Footnote 27 (2) Article 92 of UNCLOS (Status of Ships), by “directing, interdicting, and escorting the ‘Enrica Lexie’ while it was in India's [EEZ]”Footnote 28 and; (3) Article 97 of UNCLOS (Penal Jurisdiction in Matters of Collision or Any Other Incident of Navigation), by instituting criminal proceedings against the Marines, who were “in the service of the ship” during a “collision or any other incident of navigation,” and by ordering the detention of the Enrica Lexie.Footnote 29
India responded that the Enrica Lexie proceeded to the Indian Port of Kochi “voluntarily,”Footnote 30 at which point the exercise of India's jurisdiction over the Enrica Lexie was not in the Indian EEZ or territorial waters. India argued that Article 92 of UNCLOS was not breached by the application of the Indian Penal Code to exercise of jurisdiction over the St. Antony;Footnote 31 Article 97 of UNCLOS was inapplicable because the dispute did not involve an “incident of navigation” and the Marines were not “persons in the service of the ship.”Footnote 32
The Tribunal decided that India did not interfere with Italy's freedom of navigation by perpetrating a ruse, even if the ship was unaware that India had initiated an investigation against them.Footnote 33 Further, since the ship was not boarded or arrested in the Indian EEZ, the Tribunal declined to consider whether India might have used force to compel compliance had this become necessary.Footnote 34 Also, the Tribunal held that India's request for the Enrica Lexie to change course and proceed to Kochi was “‘too remote’ to amount to ‘interference’ with Italy's freedom of navigation,” and therefore, not a breach of Article 87 of UNCLOS.Footnote 35 Further, the Tribunal determined that Article 97 was inapplicable because “no ‘incident of navigation’ … occurred,” since the direct cause of the death of the two Indians was not the movement or manoeuvring of ships.Footnote 36
Piracy, Good Faith and Abuse of Rights
Italy also suggested that India breached Articles 100 and 300 of UNCLOS, concerning the duty to cooperate in good faith to repress piracy, especially by not respecting the immunity of the Marines.Footnote 37 India argued that the duty to cooperate under Article 100 was not “absolute” and did not “extend to upholding the Marines’ immunities in this case.”Footnote 38 Further, India replied that “the Enrica Lexie's attitude violated both Article 100 and 300” and stressed that “[t]he fight against piracy cannot serve as an excuse for criminal acts.”Footnote 39
The Tribunal held that India did not breach Article 100, since India's instruction to the Enrica Lexie “to change course and head towards Kochi … was necessary in order to “‘take stock of events’ … about the suspected pirate attack” and an evidence of “India's willingness to cooperate in the repression of piracy.”Footnote 40 Consequently, the Tribunal found that Article 300 was inapplicable to the present case and ruled the lack of need for remedies in this respect.Footnote 41
India's Counterclaims
India argued that Italy violated its sovereign rights and failed to exercise due regard to these rights in the Indian EEZ, as ensured under Articles 56 and 58 of UNCLOS respectively, by using force against unarmed Indian fishermen.Footnote 42 India also claimed that Italy violated India's freedom of navigation in the EEZ, under Articles 87 and 90, by shooting at the St. Antony and causing it to change course.Footnote 43 Italy contended that the St. Antony was not legitimately fishing in the Indian EEZ since it was not permitted to fish beyond the Indian territorial waters under India's domestic legislation.Footnote 44 Also, Italy argued that India was not vested with the right or the freedom of navigation in the case of the St. Antony, which did not, and was not, entitled to fly the Indian flag.Footnote 45
The Tribunal held that Italy did not violate India's sovereign rights in the EEZ under Articles 56 and 58 of UNCLOS since the act of the Marines was a singular and isolated incident that affected only the “St. Antony.”Footnote 46 The Tribunal did, however, uphold the right of the St. Antony to freedom of navigation under Articles 87 and 90 of UNCLOS, even as a small non-registered vessel, which Italy had breached.Footnote 47 Consequently, India was entitled to compensation for the damage resulting from Italy's breach, with the amount to be determined by mutual agreement. The Parties may seek the Tribunal's ruling for quantifying such compensation within one year of the Award.Footnote 48
Conclusion
On the Merits, the majority of the Tribunal held that Italy retained criminal jurisdiction over the Marines by virtue of flag state jurisdiction. Judge Dr. Sreenivasa Rao Pemmaraju and Judge Patrick Robinson dissented with the Majority on four counts, arguing that: (1) the issue of immunity was not “incidental” since UNCLOS is silent on the issue; (2) the Marines were engaged in a commercial transaction on board the Enrica Lexie and therefore, were not rendering a “government non-commercial service” to qualify for such immunity; (3) by the deadly shooting of the Indian fishermen, Italy violated India's sovereign rights in the Indian EEZ under Article 56 of UNCLOS; and (4) the incident also demonstrated that Italy breached its obligation under Article 58(3) of UNCLOS to have due regard for India's sovereign rights in its EEZ.Footnote 49
The ruling reveals that UNCLOS is subject to broad interpretation and may include other general rules and principles of international law. The case clarifies what constitutes an “incident of navigation” under Article 97 of UNCLOS, while navigating competing visions of flag state and coastal state jurisdiction.
PCA Case No. 2015-28
IN THE MATTER OF AN ARBITRATION
- before –
AN ARBITRAL TRIBUNAL CONSTITUTED UNDER ANNEX VII
TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
THE ITALIAN REPUBLIC
- v. –
THE REPUBLIC OF INDIA
- concerning –
THE “ENRICA LEXIE” INCIDENT
AWARD
21 May 2020
ARBITRAL TRIBUNAL:
H.E. Judge Vladimir Golitsyn (President)
H.E. Judge Jin-Hyun Paik
H.E. Judge Patrick Robinson
Professor Francesco Francioni
Dr. Pemmaraju Sreenivasa Rao
REGISTRY:
Permanent Court of Arbitration
…
II. THE PARTIES’ SUBMISSIONS
…
B. Final Submissions at the Close of the Hearing
1. Submissions of Italy
75. At the close of the Hearing, Italy made the following final submissions:
(1) Italy respectfully requests the Tribunal to dismiss all of India's objections to the jurisdiction of the Tribunal and the admissibility of ltaly's claims.
(2) Italy further requests the Tribunal to adjudge and declare that:
(a) By maintaining certain provisions of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, and by maintaining Ministry of Home Affairs Notification No. S.O. 671(E) dated 27 August 1981, India has acted and is acting in a manner that is incompatible with Articles 33(1), 56(1), 56(2), 58(2), 87(1)(a) and/or 89 of UNCLOS.
(b) By directing and inducing the Enrica Lexie to change course and proceed into India's territorial sea through a ruse, as well as by interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy's freedom of navigation, in breach of UNCLOS Article 87(1)(a), and Italy's exclusive jurisdiction over the Enrica Lexie, in breach of Article 92 of UNCLOS.
(c) By directing and inducing the Enrica Lexie to change course and proceed into India's territorial sea through a ruse, India abused its right to seek Italy's cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS.
(d) By instituting criminal proceedings against the Marines, India violated and continues to violate Italy's exclusive right to institute penal or disciplinary proceedings against the Marines, in breach of Article 97(1) of UNCLOS.
(e) By ordering the detention of the Enrica Lexie between February and May 2012, and investigating those on board, India violated the prohibition against the arrest or detention of a ship by a State other than the flag State in breach of Article 97(3) of UNCLOS.
(f) By asserting and continuing to exercise its criminal jurisdiction over Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, India is in violation of its obligation to respect the immunity of the Marines as Italian State officials exercising official functions, in breach of Articles 2(3), 56(2), 58(2) and 100 of UNCLOS.
(g) By failing to cooperate in the repression of piracy, India violated UNCLOS Article 100.
(h) India's assertion of jurisdiction in the present case was and is contrary to UNCLOS.
(3) In consequence of the preceding, Italy respectfully requests that the Tribunal order, in addition or in the alternative, that:
(a) India must cease all wrongful acts that have caused and continue to cause any of the continuing breaches of UNCLOS. It shall, in particular, cease to apply the provisions of the 1976 Maritime Zones Act and the 1981 Notification insofar as they are incompatible with UNCLOS. It shall also cease to exercise any form of criminal jurisdiction over the Marines, including measures of restraint and legal proceedings in India.
(b) India must make full reparation for the breaches of UNCLOS set out in paragraphs 2 (a) to (h), above, and re-establish the situation that existed before its wrongful acts. India must, in particular, terminate all criminal proceedings (including measures of restraint) in respect of Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident.
(c) India must pay compensation for the non-material damage suffered by Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone as a result of India's unlawful exercise of jurisdiction over them, and the material damage suffered in consequence of the detention of the Enrica Lexie.
(4) In addition, Italy also respectfully requests the Tribunal to dismiss India's counterclaims in their entirety and all requests consequential on them.
2. Submissions of India
76. At the close of the Hearing, India made the final submissions:
For the reasons developed in its Counter-Memorial and in its Rejoinder, and set out by its representatives during the oral proceedings, the Republic of India respectfully requests the Tribunal to:
(1) Adjudge and declare that it has no jurisdiction with respect to the case submitted to it by Italy;
(1.a) In the alternative, adjudge and declare that it has no jurisdiction with respect to Italy's Claims 2(a), 2(f), 2(h), and 3(a) and, in the further alternative, to dismiss and reject those Claims; and
(2) Dismiss and reject all other requests and submissions of ltaly.
As to its counter-claims, the Republic of lndia respectfully requests the Tribunal to adjudge and declare that:
(3) India's counter-claims are admissible; and that,
By firing at the St Antony and killing two Indian fishermen on board, Italy:
(4) Violated India's sovereign rights under Article 56 of UNCLOS;
(5) Breached its obligation to have due regard to India's rights in its EEZ under Article 58(3) of UNCLOS;
(6) Violated India's freedom and right of navigation under Articles 87 and 90 of UNCLOS; and
(7) Infringed India's right to have its EEZ reserved for peaceful purposes under Article 88 of UNCLOS.
Consequently, the Republic of India requests the Tribunal to order that:
(8) Italy make full reparation for its breaches of Article 56, 58(3), 87, 88 and 90 of UNCLOS.
III. FACTUAL BACKGROUND
…
A. The Voyage of the “Enrica Lexie” in February 2012
79. The “Enrica Lexie” was an Italian-flagged oil tanker, owned by Dolphin Tanker SRL, a company incorporated in Milan, Italy, and operated by Fratelli D'Amato SpA of Naples, Italy. The port of registry of the “Enrica Lexie” was Naples.Footnote 26
…
81. On 4 February 2012, the “Enrica Lexie” departed Singapore after stopping there for bunkering.Footnote 32 It had no cargo on board. On 12 February 2012, a six-member Vessel Protection Detachment (hereinafter “VPD”) boarded the “Enrica Lexie” at Galle, Sri Lanka. The six members of the VPD, all Italian nationals, were Chief Master Sergeant Massimiliano Latorre, Sergeant Salvatore Girone, Sergeant Renato Voglino, Corporal Massimo Andronico, Lance Corporal Antonio Fontana, and Lance Corporal Alessandro Conte.Footnote 33 Sergeant Latorre commanded the VPD.
82. The presence of the six members of the Italian Marines on board the “Enrica Lexie” was regulated by Law Decree No. 107 of 12 July 2011, of the Italian RepublicFootnote 34 (hereinafter “Italian Law on VPDs”). Article 5(1) of the Italian Law on VPDs provided that “the Ministry of Defence may enter into framework agreements with private Italian ship-owners […] related to the protection of ships flying the Italian flag in transit in international maritime spaces at risk of piracy”.Footnote 35 Accordingly, the role of the VPDs on board the vessel was to protect the safe navigation of the vessel.Footnote 36 The expenses of the VPDs, according to Article 5(1), were borne by the ship owners. These expenses however “did not constitute the salary of the marines, nor fees to the Ministry of Defence for the services rendered by the marines to shipowners”.Footnote 37
…
B. Chronological Account of the Events That Led to the Incident
1. Events as Seen from the “Enrica Lexie”
87. On 15 February 2012, at 15:45 Ship Mean Time (hereinafter “SMT”) (16:15 Indian Standard Time (hereinafter “IST”)), Footnote 45 the “Enrica Lexie” was approximately 20 nautical miles from Alleppey (Alappuzha), India, navigating at a speed of 12 knots.Footnote 46 At around that time, Captain Vitelli was seated at the computer position on the bridge corresponding with the charterer and shipowner.Footnote 47 Second Officer Sahil Gupta monitored the controls under the supervision of Captain Noviello.Footnote 48
…
89. Towards the end of Mr. Gupta's four-hour watch duty lasting from 12:00 SMT/12:30 IST to 16:00 SMT/16:30 IST, an “unidentified craft” appeared on the radar screen at a distance of approximately 2.8 nautical miles from the “Enrica Lexie”.Footnote 51 The craft was on the starboard side of the ship.Footnote 52 Once the craft was spotted, Second Officer Gupta steered an additional 2 degrees to port.Footnote 53 Captain Noviello further testified that “in the meanwhile the helm had been switched to manual steering to allow for evasive manoeuvers”.Footnote 54
…
94. Sergeant Latorre states that, when the craft was approximately 800 metres from the “Enrica Lexie”, he “implemented various and continued visual signals”, including flashing a search light, “in order to warn the craft”.Footnote 62 He also waved his weapon, in order “to signal the presence of military personnel onboard”.Footnote 63 According to Sergeant Girone, “[t]his caused no alteration in the craft's course, which continued to clearly head toward our vessel, with a 30° approach angle to starboard, relative to our stern”.Footnote 64 Sergeant Girone joined Sergeant Latorre in showing his weapon by holding it above his head, Footnote 65 while Lance Corporal Fontana, “continued to monitor the approaching craft on the navigation radar”.Footnote 66
95. Further, according to Sergeant Latorre, when the craft was at a distance of approximately 500 metres, he and Sergeant Girone each fired four rounds of a mix of tracer and ordinary bullets.Footnote 67
…
98. According to Captain Vitelli, at 16:00 SMT/16:30 IST, while he was “sending routine mid-day messages to the charterer and ship owner […] at the computer on the bridge”,Footnote 74 he heard shouting on the starboard side.Footnote 75 Captain Vitelli stated that he “rushed to the control panel to ensure that the ship is on hand steering”,Footnote 76 and that he “saw a vessel that looked like a fishing boat at 80 to 100 metres, as if it wanted to collide”.Footnote 77 Captain Vitelli also “heard shots and saw a large amount of water rise up”.Footnote 78
…
101. When the craft, which continued to approach the “Enrica Lexie”, was at a distance of approximately 80-100 metres from the “Enrica Lexie”, Sergeant Latorre and Sergeant Girone, each fired four further rounds of a mix of tracer and ordinary bullets.Footnote 85 Following this third burst of shots, the small craft, which was then approximately 30 metres from the “Enrica Lexie”, changed its course away from the “Enrica Lexie”.Footnote 86
102. At 16:23 SMT/16:53 IST, Captain Vitelli sent a Ship Security Alarm System (hereinafter “SSAS”) message, communicating the “nature of distress” as a “piracy/armed attack”.Footnote 87 The “Enrica Lexie” was positioned at 09° 20.54’ N 075° 59.31’ E. Its course was 331°, and its speed was 14 knots.Footnote 88
103. As will be described in more detail in Section C below, Captain Vitelli maintained the “Enrica Lexie” on alert and on manual steering for one hour following the incident, originally staying left of the ship's charted course to avoid a “high-traffic, a high-density area for fishing boats”, before returning to the vessel's original course once the alert ended.Footnote 89
…
2. Events as Seen from the “St. Antony”
105. While the “Enrica Lexie” was navigating off the coast of Alleppey (Alappuzha), India, on 15 February 2012, a fishing boat named the “St. Antony” was also navigating off the coast of India, in more or less the same area.Footnote 91 The “St. Antony”Footnote 92 had an overall length of 13.72 metres, “weighing about 7.5 to 8 tons including its net and other accessories”, and had a 106 horsepower engine.Footnote 93 It was owned by Captain Fredy, an Indian national from the State of Tamil Nadu.Footnote 94 The boat was registered in the State of Tamil Nadu under Registration Number TN/15/MFB/208Footnote 95 but apparently flew no visible Indian flag.Footnote 96
106. In addition to Captain Fredy, ten other persons were on the boat as crew members: Mr. Killary, Mr. Francis, Mr. Johnson, Mr. Kinseriyan, Mr. Clemence, Mr. Muthappan, Mr. Martin, Mr. Michael, Mr. Valentine Jelastine and Mr. Ajeesh Pinku. Footnote 97 On the same day, as will be described below, the Indian Coast Guard would identify the “St. Antony” as the small craft involved in the shooting incident with the “Enrica Lexie”.Footnote 98
107. In a statement given on the day of the incident, Captain Fredy states that, “while we were proceeding on a distance of 40 Nautical miles, the time was 04.30 PM when we reached west of Kayamkulara. All others barring Jelastin and Pinku were asleep at that time. It was Jelastin who took the helm. Pinku was at the bow”.Footnote 99
…
110. Captain Fredy states that “[b]ullets were being shot into the boat” and that the “firing was done from the ship, which passed us by the right side, heading to the north-west”.Footnote 105 In his statement on the day of the incident, Captain Fredy stated that “[n]o alarm sounded or mi[c] announcement made or a warning shot fired, nothing of the sort was done before firing bullets”.Footnote 106 In his affidavit sworn of 27 April 2012, Captain Fredy stated that he “saw/heard continuous firing in air, blowing of horns, siren and flashing of lights”.Footnote 107 In his testimony at the Hearing, Captain Fredy distanced himself from the affidavit of 27 April 2012 and affirmed that no sirens or alarms were sounded or warning shots fired.Footnote 108
111. According to Captain Fredy's testimony, none of the persons on the “St. Antony” was carrying arms.Footnote 109 At the Hearing, when the Arbitral Tribunal asked Captain Fredy: “what kind of visible equipment was the St. Antony carrying on 15th February”,Footnote 110 he replied: “[a] small knife to cut the fish”.Footnote 111
112. According to Captain Fredy, two crew members of the “St. Antony”, Mr. Jelastine and Mr. Pinku, were hit and killed by bullets.Footnote 112 Captain Fredy explains that he “was suddenly aroused from [sleep] to see that Jelastin was bleeding from his nose and ear” and that “[b]ullets were being shot into the boat at that time”.Footnote 113 Captain Fredy states that he then ordered the other crew members aboard the “St. Antony” to “[l]ie down wherever you are, the ship people are shooting at us”.Footnote 114 At the same time, Captain Fredy describes that “Pinku, who was onboard the stern, was heard howling ‘amme’,” and that “[b]lood was oozing out from the right side of his chest”.Footnote 115 He adds that “[t]here was a little inflammation on the right side of the lower limb of Jelastin[e]”, but that he “did not examine how deep Jelastin's wounds were, out of fear and apprehension”.Footnote 116
…
114. Captain Fredy testified that he then took over the steering,Footnote 118 and “abruptly helmed the boat away”.Footnote 119 He steered the “St. Antony” at high speed, and only when he “realized [the bullets] were not hitting the boat” but rather “falling into water” did he slow the boat to “find out what had happened to the two people who were shot”.Footnote 120
115. After slowing down, Captain Fredy explains, he “checked Jelastine first, [and] when [he] held Jelastine[’s] hand and saw, he had died”. Footnote 121 Then, Captain Fredy states that he went to see Mr. Pinku “at the back [and found that] he was still alive, he three times took deep breath, ‘amma’ he told and then he died”.Footnote 122
116. According to Captain Fredy's affidavit, “had [he] not intervened, there was a risk of collision between the said [b]oat and the other vessel”.Footnote 123 In his testimony before the Arbitral Tribunal, however, Captain Fredy stated that the reason he steered away was not because the “St. Antony” and the “Enrica Lexie” would have “moved closer together”, but because “there would have been more casualties”.Footnote 124
…
C. Chronological Account of the Immediate Aftermath of the Incident
…
1. Events Prior to the “Enrica Lexie”’s Change of Course towards Kochi
119. After the craft headed towards the open sea, Captain Noviello called the Company Security Officer (hereinafter “CSO”) of the company that operated the “Enrica Lexie”, Fratelli D'Amato SpA.Footnote 127
…
121. At 16:24 SMT/16:54 IST, the CSO of the operating company of the “Enrica Lexie” reported the incident to the Operations Centre of the Italian Port Captaincy Headquarters and to the Italian Ministry of Foreign Affairs.Footnote 129
122. At 16:28 SMT/16:58 IST, by telephone, Sergeant Latorre “reported the attempted attack by suspect pirates” to the Commander in Chief of the Naval Squadron, Operational Headquarters of the Italian Navy (hereinafter “CINCNAV”).Footnote 130
…
126. At an unspecified time, Captain Fredy called the owner of another boat, also named the “St. Antony”, to inform him of the incident and the deaths of two of his boat's crew members, Mr. Pinku and Mr. Jelastine.Footnote 135 Thereafter, Captain Fredy contacted his brother-in-law by VHF, directing him to alert the police that there had been a fatal shooting upon his boat.Footnote 136 He further described the ship that had fired at the “St. Antony” and gave its general course coordinates, stating that “there is a ship moving towards north, black colour ship, on the back side it is written Napoli” and that “in four hours, the ship will cross Kochi”.Footnote 137 At 17:00 SMT/17:30 IST, the “death of two fishermen following firing from a ship” was reported to the Coastal Police Station, Neendakara, and the Coastal Police Station, Fort Kochi.Footnote 138
127. At 17:10 SMT/17:40 IST, the Coastal Police Station, Neendakara, informed Coast Guard District HQ 4, Kochi, of a “firing by merchant vessel on fishing boat Saint Antony” at “1630” at position “190 Kochi Lt 45 NM (09 deg 16 min N 076 deg 02 min E)”.Footnote 139 Coast Guard District HQ 4 then passed on the information to the Maritime Rescue Coordination Centre (hereinafter “MRCC”) Mumbai.Footnote 140
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129. At 17:40 SMT/18:10 IST, the Coast Guard District HQ 4 informed DIG [redacted] “that a fishing boat was fired by a merchant vessel at sea” and directed him to “conduct search for suspected vessel between Kollam and Kadungalloor”.Footnote 143 The ICGS “Samar” “was diverted to proceed with best speed to areas of incident”.Footnote 144 According to the Boarding Officer's Report, the “ICGS Samar was directed to divert from area patrol and proceed with maxspeed to reach area and render assistance for apprehension of suspect vessel”.Footnote 145
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136. At 19:05 SMT/19:35 IST, from INS “Garuda”, DIG [redacted] and two other crew members took off on the Indian Coast Guard Dornier aircraft CG760 for “sea-air coordinated search”.Footnote 153 At the same time, Commandant [redacted] of ICGS “Lakshmibai” received directions to sail “with dispatch” and “interrogate/identify all the merchant vessels in the area” in search of the vessel involved in the firing.Footnote 154 INS “Kabra” also sailed out.Footnote 155
2. The “Enrica Lexie”’s Change of Course
…
138. At 19:15 SMT/19:45 IST, Captain Vitelli received a VHF call from the CGAE aboard the Dornier aircraft requesting his “route and speed” and confirming whether the “Enrica Lexie” was heading to Kochi.Footnote 157 In DIG [redacted] statements, he asserts that during this phone call, he “directed” the “Enrica Lexie” to amend course further so as to proceed to Kochi.Footnote 158
…
142. At 19:30 SMT/20:00 IST, Sergeant Latorre sent an Action Report to CINCNAV, the Italian Ministry of Defence, and the Office of the Chief of Staff of the Italian Navy, “informing them of the incident with the craft and the measures taken by the VPD in response”.Footnote 168 At the same time, Italy's Interforce Operations High Command issued a Flash Report to “recipients including the Office of the President of the Italian Republic, the Ministry of Foreign Affairs, and several offices of the Ministry of Defence” regarding the shooting incident.Footnote 169
143. At 19:45 SMT/20:15 IST, the “Enrica Lexie” responded to radio calls from the ICGS “Lakshmibai”, repeating the direction given by the CGAE that the “Enrica Lexie” should continue on to Kochi.Footnote 170
144. By approximately 20:00 SMT/20:30 IST, the “Enrica Lexie” arrived at the point across from Kochi (a true course of 79°) and, at that point, proceeded to turn towards the port of Kochi.Footnote 171
145. At around that time, the following message from MRCC Mumbai was received by the “Enrica Lexie”:
Dear Master […] Refer to telecon todate at around 1330 hrs UTC [Coordinated Universal Time] with MCC Mumbai, duty controller, understand there has been a piracy incident/firing incident by your vessel on a suspicious skiffs at around 1600 hrs LT off allepey in position 09 16 N, 076 02 E. You are requested to head for Kochi and establish communication with Indian Coast Guard, VHF 16 and telephone 91 482 2217164 and 2218969 for further deposition/clarification. Request ETA Kochi. Regards, MRCC MumbaiFootnote 172
…
147. Captain Vitelli forwarded the message to MSCHOA and UKMTO, with a copy to Fratelli D'Amato SpA. In the covering e-mail, Captain Vitelli noted: “[p]lease be advised that with reference to the below message from MRCC Mumbai we have altered course and are now proceeding towards Cochin. We will revert when we resume the voyage”.Footnote 173 At 20:40 SMT/21:10 IST, MRCC Rome sent a copy of the report received from Captain Vitelli to the Presidency of the Council of Ministers of Italy, the Ministry of Transport, the Ministry of Foreign Affairs, the Ministry of Interior, and the Office of the Rome Public Prosecutor.Footnote 174
3. Arrival of the “Enrica Lexie” at Kochi Anchorage
148. From the first point of contact with the “Enrica Lexie” until the ship arrived and anchored at Kochi anchorage, the Dornier aircraft remained in communication with and in the vicinity of the “Enrica Lexie”. According to DIG : “We contacted them continuously over VHF. The ship altered the course towards Kochi and we shadowed it to Kochi anchorage till 22.30 hrs”.Footnote 175 At approximately 21:00 SMT/21:30 IST, ICGS “Lakshmibai” arrived at the location of the “Enrica Lexie” and sailed alongside it to the “outer anchorage of Kochi”.Footnote 176
…
151. The Dornier aircraft remained above the “Enrica Lexie” until 22:45 SMT/23:15 IST.Footnote 182 At 23:09 SMT/23:39 IST, Captain Vitelli informed MRCC Mumbai by e-mail that the “Enrica Lexie” had instructions to resume its voyage “not later than 06:00 on 16 February 2012”. In response, MRCC Mumbai requested that the “Enrica Lexie” “be in the anchored position” until the completion of the investigation by Indian authorities of “the firing incident”.Footnote 183
152. At 22:45 SMT/23:15 IST, once the “St. Antony” had reached the shore at Kollam, Captain Fredy informed the Kerala Police (District of Kollam, Coastal Police Station, Neendakara) of the firing “in the vicinity of the [“St. Antony”]” and “the deaths of two fishermen aboard the vessel, Mr. Pink[u] and Mr. Jelastine, at between approximately 31 and 33 nautical miles north-west of Neendakara”.Footnote 184
153. The “Enrica Lexie” was monitored for the rest of the night by Coast Guard patrols. At 12:50 SMT/1:20 IST, the Chairman of the Cochin Port Trust received a fax from the Coast Guard District HQ 4 instructing that the “Enrica Lexie should not be permitted to leave Kochi Anchorage without permission of State Police/Coast Guard”.Footnote 185
154. The next day, on 16 February 2012, Italy and India, respectively, commenced investigations and subsequently initiated proceedings in relation to the “Enrica Lexie” incident. The Indian investigation and proceedings are set out in Section D below, followed by the Italian investigation and proceedings in Section E.
D. The Indian Investigation and Proceedings
1. Investigations within the Kochi Anchorage Position
155. On 15 February 2012, through the registration of a First Information Report at the Coastal Police Station in Neendakara, Kollam, the Kerala Police initiated investigation into a complaint by the owner and captain of the “St. Antony” concerning the killing of two Indian fishermen. The First Information Report referred to Section 302 of the Indian Penal Code, which addresses the crime of murder.Footnote 186
…
3. India's Judicial Process in Relation to the Marines
171. On 21 February 2012, “a search warrant was sought” to permit a search of the “Enrica Lexie”, which was conducted on 25 February 2012 in the presence of officials of the Italian Government.Footnote 220
172. On 2 May 2012, the Supreme Court of India ordered that “the Government of Kerala and its authorities shall allow the [“Enrica Lexie”] to commence her voyage”.Footnote 221 The “Enrica Lexie” “[sailed] out of Indian waters” on 5 May 2012.Footnote 222
(a) Conditions of Detention of the Marines
173. On 1 March 2012, the Marines sought to challenge the conditions of their detention with the Chief Judicial Magistrate in Kollam on grounds of safety concerns and their immunity as “military personnel of a Sovereign country performing state functions of protecting the interest of vessels of Italy flying Italian flags as agents and representatives of State”.Footnote 223 On 5 March 2012, following a subsequent application by the Marines, the Chief Judicial Magistrate ordered that the Marines be transferred to “judicial custody” in the Central Prison and separated from other prisoners.Footnote 224
…
(b) Writ Petitions Filed by the Marines
179. On 22 February 2012, Italy and the Marines filed Writ Petition 4542 of 2012 in the High Court of Kerala, contending that “India did not have jurisdiction under its own domestic law; that Italy had exclusive jurisdiction under UNCLOS; and that in any event, under international law, the Marines had immunity from Indian criminal jurisdiction”.Footnote 231 Subsequently, on 19 April 2012, Italy and the Marines filed Writ Petition 135 of 2012 in the Supreme Court of India, contending that the dispute in question was “between two sovereign States” and seeking a declaration that (i) any action by India in relation to the “alleged incident under any Indian law was illegal”; (ii) “the continued detention of the two Marines […] was illegal”; and (iii) India will “take all steps as may be necessary to secure custody of the two Marines and transfer them to the Italian Republic”.Footnote 232
180. On 29 May 2012, the High Court of Kerala dismissed Writ Petition 4542 of 2012, finding that India and the Kerala authorities had jurisdiction on the basis that, even though the incident occurred outside India's territorial waters and within India's contiguous zone, the Notification of the Ministry of Home Affairs of the Republic of India, No. S.O. 671(E), dated 27 August 1981 (hereinafter the “1981 Notification”) made the Indian Penal Code and the Indian Code of Criminal Procedure “applicable to the entirety of India's exclusive economic zone”. It also held that this conclusion was “not incompatible with the provisions of [the Convention]”.Footnote 233 The Court stated:
In this case there was no ‘entry’ by the Italian Marines to the territory of India, but a merciless attack of gunshots at fishermen, while passing through the CZ/EEZ of India, bre[a]ching all established guidelines and norms, and without any cause. It can be treated only as a case of brutal murder and can in no way be masqueraded as a discharge of the sovereign function.Footnote 234
181. On 11 July 2012, Italy and the Marines filed an appeal through a Special Leave Petition 20370 of 2012 to the Supreme Court against the decision of the High Court of Kerala. The appeal was joined with Writ Petition 135 of 2012.Footnote 235
182. On 18 January 2013, the Supreme Court delivered its judgment, in which it, inter alia, found that the Union of India, as opposed to the State of Kerala, “had federal criminal jurisdiction over the Marines”, ordered that a “Special Court” be established to try the Marines, and stated that the question of jurisdiction could be “re-agitated” before the Special Court.Footnote 236 Italy notes that the Supreme Court “left Article 100 of UNCLOS unaddressed, with the possibility that Italy's assertion of flag-state jurisdiction rights may be vindicated through Article 100”.Footnote 237
…
184. On 1 April 2013, the investigation and prosecution of the case against the Marines was entrusted by the Indian Ministry of Home Affairs to the National Investigation Agency of India (hereinafter the “NIA”). Such investigation would, as the NIA indicated, cover offences under the Indian Penal Code as well as offences under Section 3 of the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (hereinafter the “SUA”). On 15 April 2013, the Ministry of Home Affairs identified “the Court of Additional Sessions Judge-01, Patiala House, New Delhi” as the “Special Designated Court” to try the Marines.Footnote 239 In September 2013, the NIA took statements from the crew members of the “Enrica Lexie” regarding the incident.Footnote 240
…
186. On 6 March 2014, the Marines filed a Writ Petition under Article 32 of the Constitution of India before the Supreme Court challenging the jurisdiction of the NIA under Indian law, the legality of the Special Court, and the jurisdiction of India, as well as reasserting their immunity.Footnote 244 Following this, by Order dated 28 March 2014, the Supreme Court placed the Special Court's proceedings in abeyance. The period of adjournment was later extended by subsequent Orders.Footnote 245 The Writ Petition was not finally decided.Footnote 246
(c) Bail Conditions of the Marines
187. On 22 February 2013, the Supreme Court of India allowed both Marines to travel to Italy for a four-week period to enable them to vote in the European Union elections.247
…
189. On 7 September 2016, Sergeant Latorre applied to the Supreme Court of India to remain in Italy on bail. A hearing was scheduled before the Supreme Court on 28 September 2016 to address this application.Footnote 250 Sergeant Latorre was allowed to remain in Italy during the present Arbitration to undergo rehabilitation, treatment, and therapy following a brain stroke and heart surgery.Footnote 251
190. On 9 December 2014, Sergeant Girone made an application to the Supreme Court to be allowed to return to Italy.Footnote 252 He later withdrew the application.Footnote 253
191. Following the issuance by ITLOS of an Order on Provisional Measures (see Part I, Section B), the Supreme Court and Special Court respectively, on 26 and 28 August 2015, ordered that the relevant proceedings be stayed.Footnote 254
…
193. Following the rendering by the Arbitral Tribunal on 29 April 2016 of the Provisional Measures Order,Footnote 256 the Supreme Court ordered on 26 May 2016 that “Sergeant Girone while remaining under the authority of the Supreme Court of India is permitted to return to Italy during the Annex VII arbitration” subject to conditions prescribed by the Supreme Court (see Part I, Section E).Footnote 257 Sergeant Girone returned to Italy on 28 May 2016 and remained in Italy during the present Arbitration.Footnote 258
E. The Italian Investigation and Proceedings
…
2. Criminal Proceedings by the Rome Military Prosecutor and the Rome Public Prosecutor
…
205. On 16 February 2012, Sergeant Latorre sent a criminal offence report under Article 331(1) of the Italian Code of Criminal Procedure to the Rome Public Prosecutor, accompanied by supporting documentation including photographs and statements from both the crew and the VPD marines.Footnote 280 The Rome Public Prosecutor opened criminal proceedings “against persons unknown for the offences of piracy and suspicion of piracy under Article 1135 of the Italian Code of Navigation, and Article 56 of the Italian Penal Code, committed in the Indian Ocean, at around 30 nautical miles off the Indian coast”.Footnote 281
206. On 17 February 2012, the Rome Military Prosecutor also opened a criminal case against unknown military personnel “for the military criminal offences under Articles 120 and 47(2)-(4) of the Italian Peacetime Military Penal Code, and Article 165 of the Italian Wartime Military Penal Code in relation to Article 185 of the same Code”.Footnote 282 The Rome Military Prosecutor requested the Special Operations Group of the Carabinieri to conduct a preliminary investigation concerning the incident.Footnote 283
…
209. On 22 February 2012, the Rome Military Prosecutor ordered that charges be amended, to be “against Sergeant Latorre and Sergeant Girone for the offences of aggravated failure to obey orders, of violence resulting in murder of private individuals during military operations abroad, and of dispersion of military equipment (bullets)” in connection with the “Enrica Lexie” incident.Footnote 288 On the same day, the Rome Public Prosecutor registered the Marines as “suspects for the offence of murder and complicity in murder against unknown persons committed on the high seas in the Indian Ocean”.Footnote 289
3. Consolidation of Italian Criminal Proceedings under the Rome Public Prosecutor
…
211. On 15 March 2012, through “letters rogatory” to the Indian Government, the Rome Public Prosecutor stated that “[it] was investigating the Marines in relation to the death of two Indian fishermen, Mr. Jelastine and Mr. Pink, based on the alleged crime of murder under Article 575 of the Italian Penal Code”. Footnote 291 The letters also asserted that the Rome Public Prosecutor had jurisdiction over the matter,Footnote 292 requested that the Indian authorities provide certain documents and evidence,Footnote 293 and communicated “the need for the Italian authorities to examine Sergeant Latorre and Sergeant Girone, Captain Vitelli, and other persons aboard the Enrica Lexie and the St Antony.”Footnote 294
…
213. On 3 January 2013, the Marines made voluntary declarations regarding the “Enrica Lexie” incident before the Rome Public Prosecutor. They were informed that “they were under investigation for offences under Articles 110 and 575 of the Italian Penal Code for the crimes of murder and complicity in murder”.Footnote 298
…
215. On 13 March 2013 and 19 April 2013, the Rome Public Prosecutor sent further “letters rogatory”, repeating earlier requests for documents and evidence, but did not receive a response.Footnote 300
216. The Italian criminal proceedings are currently stayed in accordance with the ITLOS Order on Provisional Measures.Footnote 301
IV. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW
217. This Arbitral Tribunal was constituted in accordance with Article 287, paragraphs 1, 3, and 5, of the Convention and Annex VII to the Convention. In accordance with Articles 286, 287, paragraph 1, and 288, paragraph 1, of the Convention, the Arbitral Tribunal, so constituted, has jurisdiction over any dispute concerning the interpretation or application of the Convention.
A. Identification of the Dispute for the Purpose of Ascertaining Whether the Arbitral Tribunal has Jurisdiction Over the Dispute
…
1. Existence of a Dispute
220. The concept of a dispute is well-established in international law. In international proceedings, a dispute exists when the parties have “a disagreement on a point of law or fact, a conflict of legal views or of interests”.Footnote 303
…
2. Characterisation of the Dispute
(b) Characterisation of the Dispute by the Arbitral Tribunal
…
236. In its Notification and Statement of Claim instituting the present proceedings, Italy refers to “the dispute concerning the Enrica Lexie Incident”, Footnote 323 and provides the following introductory summary of the dispute:
This Notification and Statement of Claim addresses the dispute between the Italian Republic (“Italy”) and the Republic of India (“India”) over “the Enrica Lexie Incident”. This concerns an incident approximately 20.5 nautical miles off the coast of India involving the MV Enrica Lexie, an oil tanker flying the Italian flag, and India's subsequent exercise of criminal jurisdiction over two Italian Marines from the Italian Navy (“Italian Marines”) in respect of that incident. India's exercise of criminal jurisdiction over the Italian Marines violates the 1982 United Nations Convention on the Law of the Sea (“UNCLOS” or “the Convention”), to which Italy and India are party.Footnote 324
…
238. On the basis of these facts, Italy has consistently maintained in its pleadings that the dispute is one “regarding the legality under UNCLOS of India's exercise of criminal jurisdiction over the Italian Marines”.Footnote 325 To the extent that Italy refers to issues of immunity in defining its dispute in its pleadings, it is with respect to its relevance as an exception to India's exercise of criminal jurisdiction over the Marines, and as one out of several bases on which Italy alleges such exercise to be unlawful.Footnote 326
…
240. For its part, India, in its account of the facts giving rise to the present case, places greater emphasis on the “St. Antony” and its crew, and the events that occurred on board that fishing vessel as a consequence of the conduct of the Marines. […]
241. In a section of the Counter-Memorial entitled “What the Case Is Really About: The Killing of Its Nationals on the St Antony”, Footnote 328 India elaborates further on that characterisation, making no reference to questions of immunity.
…
243. Having analysed and established the nature of the dispute between the Parties in the present proceedings, the Arbitral Tribunal concludes that the Parties’ dispute is appropriately characterised as a disagreement as to which State is entitled to exercise jurisdiction over the incident of 15 February 2012 involving the “Enrica Lexie” and the “St. Antony”, which raises questions under several provisions of the Convention, including Articles 56, 58, 59, 87, 92, 97, 100, and 300, the interpretation or application of which the Parties have different views. The dispute may raise, but is not limited to, the question of immunity of the Marines.
…
3. Conclusion
245. The Arbitral Tribunal concludes that as the dispute between the Parties relates to the interpretation or application of the Convention, it has jurisdiction over the dispute underlying the present Arbitration, subject to its decision on the specific objections to jurisdiction raised by India, including with respect to the question of the immunity of the Marines, which will be addressed by the Arbitral Tribunal in conjunction with the claims of Italy to which they relate.Footnote 330
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V. CLAIMS OF ITALY REGARDING ALLEGED BREACHES BY INDIA OF UNCLOS AND VIOLATIONS OF RIGHTS OF ITALY UNDER UNCLOS
259. Italy's claims in the present proceedings concern (i) the compatibility with the Convention of India's 1976 Maritime Zones Act and 1981 Notification; (ii) alleged breaches by India of provisions of Part VII (High Seas) of the Convention; and (iii) the alleged violation by India of the immunity of the Italian Marines. […]
A. Compatibility with UNCLOS of India's 1976 Maritime Zones Act and 1981 Notification
260. Italy claims that certain sections of India's 1976 Maritime Zones Act and 1981 Notification are incompatible with the Convention.Footnote 343 The 1976 Maritime Zones Act is India's main legislation governing India's jurisdiction over maritime zones. The Parties’ disagreement centres, in particular, on the following sections of these two domestic legal instruments.
261. Section 5 of the 1976 Maritime Zones Act provides, in relevant part:
(1) The contiguous zone of India (hereinafter referred to as the contiguous zone) is an area beyond and adjacent to the territorial waters and the limit of the contiguous zone is the line every point of which is at a distance of twenty-four nautical miles from the nearest point of the baseline referred to in sub-section (2) of section 3.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the contiguous zone.
[…]
(4) The Central Government may exercise such powers and take such measures in or in relation to the contiguous zone as it may consider necessary with respect to,––
(a) the security of India, and
(b) immigration, sanitation, customs and other fiscal matters.Footnote 344
262. Section 7 of the 1976 Maritime Zones Act provides, in relevant part:
(1) The exclusive economic zone of India (hereinafter referred to as the exclusive economic zone) is an area beyond and adjacent to the territorial waters, and the limit of such zone is two hundred nautical miles from the baseline referred to in subsection (2) of section 3.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may, whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the exclusive economic zone. […]
(4) In the exclusive economic zone, the Union has,––
[…]
(e) such other rights as are recognised by International Law.
[…]
(7) The Central Government may, by notification in the official Gazette,––
(a) extend, with such restrictions and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof in the exclusive economic zone or any part thereof; and
(b) make such provisions as it may consider necessary for facilitating the enforcement of such enactment, and any enactment so extended shall have effect as if the exclusive economic zone or the part thereof to which it has been extended is a part of the territory of India.Footnote 345
263. The 1981 Notification, which refers to the 1976 Maritime Zones Act, provides, in relevant part:
In exercise of the powers conferred by sub section (7) of section 7 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (80 of 1976), the Central Government hereby extends to the exclusive economic zone, referred to therein, the Acts specified in the Schedule hereto annexed subject to the modifications (if any) and the provisions for facilitating the enforcement of such Acts specified in the said schedule.Footnote 346
264. Part I of the Schedule to the 1981 Notification, in turn, lists the Indian Penal Code and the Indian Code of Criminal Procedure, as modified to include new Section 188A, which provides:
188A. Offence committed in the exclusive economic Zone:
When an offence is committed by any person in the exclusive economic zone described in sub-section (1) of section 7 of the Territorial Waters, Continential Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (80 of 1976) or as altered by notification, if any, issued under sub-section (2) thereof, such person may be dealt with in respect of such offence as if it had been committed in any place in which he may be found or in such other place as the Central Government may direct under section 13 of the said Act.Footnote 347
1. Jurisdiction and Admissibility
(a) Existence of a Dispute at the Relevant Time in Respect of the 1976 Maritime Zones Act and 1981 Notification
…
i. Position of India
266. India objects to the jurisdiction of the Arbitral Tribunal over Italy's claim that the 1976 Maritime Zones Act and 1981 Notification are incompatible with the Convention on the ground that “[t]here was no dispute between the Parties over the above mentioned Italian claim at the date of the filing of Italy's Notification and Statement of Claim of 26 June 2015”.Footnote 348
…
ii. Position of Italy
275. Italy maintains that India's objection to the Arbitral Tribunal's jurisdiction over its claim regarding the compatibility of the 1976 Maritime Zones Act and 1981 Notification with the Convention fails. Footnote 364 Italy claims that “[t]here is no doubt whatsoever that a dispute existed between Italy and India on the extension of India's penal jurisdiction beyond the territorial sea prior to the filing of Italy's Statement of Claim”.Footnote 365 Accordingly, Italy submits that “there was a dispute between the Parties regarding the compatibility of the 1976 Act and the 1981 Notification with UNCLOS”Footnote 366 prior to 26 June 2015, when the Notification and Statement of Claim was filed.
…
(b) Admissibility of Claim of Italy
…
i. Position of India
284. India argues that, even if there were a pre-existing dispute between the Parties regarding the compatibility of the 1976 Maritime Zones Act and the 1981 Notification, Italy's claim is inadmissible because it was “not raised, directly or indirectly, in the Statement of Claim”.Footnote 383 India argues that Italy's challenge to the compatibility of the 1976 Maritime Zones Act and the 1981 Notification with the Convention constitutes a new, additional claim that “transforms the dispute brought before this Tribunal”.Footnote 384
…
3. Analysis of the Arbitral Tribunal
352. Italy claims that, by enacting the 1976 Maritime Zones Act and issuing the 1981 Notification, India has acted and is acting in a manner that is incompatible with UNCLOS with regard to Article 33, paragraph 1; Article 56, paragraphs 1 and 2; Article 58, paragraph 2; Article 87, paragraph 1, subparagraph (a); and/or Article 89.Footnote 552 Italy further claims that the aforementioned Act and Notification were the basis for the exercise by India of criminal jurisdiction over the MarinesFootnote 553 and requests the Arbitral Tribunal to “order, in addition or in the alternative, that” India shall “cease to apply the provisions of the 1976 Maritime Zones Act and the 1981 Notification insofar as they are incompatible with UNCLOS”.Footnote 554
353. India maintains that the 1976 Maritime Zones Act and the 1981 Notification are compatible with the Convention,Footnote 555 and that India has “never exercised any criminal jurisdiction over the Marines, or any jurisdiction over the Enrica Lexie, in its contiguous zone or EEZ” on the basis of this legislation.Footnote 556
…
355. It is common ground between the Parties that Italy did not raise the alleged incompatibility of the 1976 Maritime Zones Act and 1981 Notification in the abstract, as a separate dispute independent of the events of 15 February 2012. Rather, Italy regards the 1976 Maritime Zones Act and 1981 Notification as relevant because it considers that the measures allegedly undertaken by India in the exclusive economic zone vis-à-vis the “Enrica Lexie” were based on that legislation.
356. The Arbitral Tribunal notes that Indian authorities commenced investigation and asserted their jurisdiction in relation to the incident of 15 February 2012 on 16 February 2012, when the “Enrica Lexie” was anchored in Indian territorial waters, 4.5 miles off the shore of Kochi (see above paragraphs 157 to 158). On that date, the Coast Guard informed those on board the “Enrica Lexie” that they were under investigation “for the murder of the two fishermen” (see above paragraph 158). Thus, it is established that no enforcement actions were taken by the Indian authorities against the “Enrica Lexie” or the Marines in the Indian exclusive economic or contiguous zones.
…
359. In the present Arbitration, in contrast, India has not reiterated the argument that its conduct was based on the 1976 Maritime Zones Act and 1981 Notification. Rather, India relies on the territoriality and passive personality principles under international law, which are addressed in Part V, Section A.2, as well as provisions of its criminal code, as bases for the actions of its Coast Guard.
…
361. In these circumstances, the Arbitral Tribunal does not consider that Italy has established that the conduct of India of which Italy complains in the present Arbitration was in fact based on the 1976 Maritime Zones Act and 1981 Notification. Accordingly, even if questions may arise as to the compatibility of that legislation with the Convention, the Arbitral Tribunal sees no need to address that issue in the context of the present dispute.
362. […] India invokes the “territoriality principle”559 and the “passive personality principle”Footnote 560 as such legal bases.
363. The Arbitral Tribunal considers that, to justify India's exercise of jurisdiction in the present case, it would be sufficient for either of the two bases to be compatible with the Convention.
364. The territoriality principle invoked by India denotes the principle that a State may exercise jurisdiction over any offence committed in its territory. According to India, this principle may be extended to a vessel, so that a State may exercise jurisdiction over any offence committed on board its vessel wherever it may be, as if the offence were committed in its territory.Footnote 561
365. The Arbitral Tribunal notes that such an extended territoriality principle is well established, and the domestic criminal legislation of a large number of States confers jurisdiction over offences committed on board national ships or aircraft.Footnote 562 In this regard, the Arbitral Tribunal does not consider that this principle amounts to assimilating a vessel with national territory “for all purposes” as if “a ship is a floating part of state territory”, as Italy argues.Footnote 563
366. In the view of the Arbitral Tribunal, it is also well established that, where the commission of an offence involves the territories of more than one State (for example, an offence was commenced in the territory of one State and completed in the territory of another State), both the State in whose territory an offence was commenced (subjective territoriality principle) and the State in whose territory it was completed (objective territoriality principle) may exercise jurisdiction over the offence.Footnote 564 Likewise, where an offence was commenced on board one vessel and completed on board another vessel, the flag States of both vessels may have concurrent jurisdiction over the offence.Footnote 565
367. In the present case, the Marines on board the “Enrica Lexie” fired at the “St. Antony”, resulting in the death of two Indian fishermen on board the “St. Antony” and damage to the vessel.Footnote 566 The incident thus involves two vessels: the alleged offence was commenced on board the Italian vessel, “Enrica Lexie”, and completed on board the Indian vessel, “St. Antony”. According to the territoriality principle, both Italy and India are entitled to exercise jurisdiction over the incident. However, this is without prejudice to the question whether India is precluded from exercising jurisdiction over the Marines because of their status as State officials entitled to immunity in relation to acts performed in the exercise of their official functions. […]
368. Furthermore, in the Arbitral Tribunal's view, India's exercise of jurisdiction over the “Enrica Lexie” incident is not only compatible with the Convention, but justified by Article 92, paragraph 1, of the Convention, which provides for the principle of exclusive flag State jurisdiction. Pursuant to this principle, India, as the flag State, has exclusive jurisdiction over the “St. Antony” and may assert its jurisdiction in respect of the offence that was allegedly completed on board its vessel in the exclusive economic zone, in the same way as Italy, as the flag State, has exclusive jurisdiction over the “Enrica Lexie” and may assert its jurisdiction in respect of the offence that was allegedly commenced on board its vessel.
369. Having found that the territoriality principle can provide a valid legal basis for India's exercise of jurisdiction over the “Enrica Lexie” incident, the Arbitral Tribunal does not find it necessary to address the validity of the second base invoked by India, the passive personality principle.
…
B. Alleged Breaches and Violations by India of Provisions of Part VII (High Seas) of UNCLOS
371. Italy claims that India, through its conduct on, and subsequent to, 15 February 2012, has breached several provisions of Part VII of the Convention, namely, Article 87, paragraph 1, subparagraph (a) (freedom of navigation); Article 92 (status of ships); Article 97 (penal jurisdiction in matters of collision or any other incident of navigation); and Article 100 (duty to cooperate in the repression of piracy), read together with Article 300 (good faith and abuse of rights).
372. These provisions are found in Part VII of the Convention and apply to the high seas. Article 58 of the Convention, however, extends the application of these provisions to the exclusive economic zone. Article 58 provides:
Article 58
Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.
…
1. Alleged Breaches by India of Articles 87, paragraph 1, subparagraph (a), and 92 of UNCLOS
377. The Parties disagree over the interpretation of Article 87, paragraph 1, subparagraph (a), and Article 92 of the Convention. These Articles address the freedom of navigation and the status of ships on the high seas which, by virtue of Article 58, also apply to the exclusive economic zone.
378. Article 87, paragraph 1, subparagraph (a), provides:
Article 87
Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
379. Article 92 provides:
Article 92
Status of ships
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
…
(b) Interpretation and Application of Article 87, paragraph 1, subparagraph (a) (Freedom of Navigation)
…
iii. Analysis of the Arbitral Tribunal
463. Italy claims that India, through its conduct, has breached the freedom of navigation stipulated in Article 87, paragraph 1, subparagraph (a), of the Convention, which provides:
Article 87
Freedom of the high seas
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
…
(a) The concept of freedom of navigation
465. The freedom of navigation, as underlined by Italy, imposes an obligation on States other than the flag State not to interfere with its exercise and “involves a positive and a negative aspect: positively, vessels of every State may freely navigate on the high seas”Footnote 795 and “negatively, no State may exercise any authority against any vessel sailing under the flag of another State”.Footnote 796 On that basis, Italy asserts that the legal test for a breach of Italy's freedom of navigation is “simply whether India interfered with the freedom of navigation of the Enrica Lexie”, arguing that “it could do so by exercises of authority falling far short of boarding it or using or threatening to use force against it”.Footnote 797
466. For its part, India believes that there is a higher threshold for a finding of interference, requiring the threat or use of force as a necessary condition.Footnote 798 India asserts that “at no time did India exercise any authority over the Enrica Lexie while it was navigating in India's exclusive economic zone”,Footnote 799 or “board or attempt to board the Enrica Lexie while it was in India's EEZ”.Footnote 800
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468. Turning now to the question of which acts can constitute a breach of freedom of navigation under Article 87, paragraph 1, of the Convention, the Arbitral Tribunal notes that the right to freedom of navigation “provides ships of any States with the right to traverse the high seas with no or minimal interference from any other State”.Footnote 802 […]
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472. Accordingly, in the Arbitral Tribunal's view, a breach of freedom of navigation may result from acts including physical or material interference with navigation of a foreign vessel, the threat or use of force against a foreign vessel, or non-physical forms of interference whose effect is that of instilling fear in, or causing hindrance to, the exercise of the freedom of navigation.
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(b) Examination of India's conduct vis-à-vis the “Enrica Lexie”
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(i) Alleged direction
475. Italy claims that India “directed” the “Enrica Lexie” to alter course and proceed to Kochi, both through a communication from MRCC Mumbai and subsequently through the Dornier aircraft and the ICGS “Lakshmibai”, and that this direction breached Italy's freedom of navigation.Footnote 816
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479. As it became clear during the Hearing, Captain Vitelli was not under any compulsion to head to Kochi, nor does Italy (now) allege that he was. According to Captain Vitelli's testimony, the MRCC is “the highest authority in that sea area”. He adds, “[h]ow could I ignore such a call? I had to consider that, I had to attach the necessary importance to that”.Footnote 827 He, however, did not consider his freedom “to change the course again and resume the original course towards Egypt” to be hindered.Footnote 828 He testified, “[f]rankly, I didn't give this a thought. The plans had already changed. My task was to provide support to the authorities and to resume our journey as soon as possible […] I didn't have the impression that force was being used. I was free to alter the course”.Footnote 829
480. Captain Vitelli testified that “[i]n the end, everybody was in agreement: the best thing to do was to head to Kochi”.Footnote 830 The Arbitral Tribunal has found the testimony of Captain Vitelli in respect of the motivation for the change of course to Kochi credible and has no reason to doubt its veracity.
481. In these circumstances, the MRCC's request for the “Enrica Lexie” to proceed to Kochi cannot be regarded as constituting interference with navigation of the “Enrica Lexie”, which could amount to a breach of Italy's freedom of navigation.
482. The same applies to the communication from the Dornier and the ICGS “Lakshmibai”, which the Arbitral Tribunal notes took place subsequent to the “Enrica Lexie”’s change of course towards to Kochi. Having considered that the communications from the MRCC Mumbai did not amount to a breach of Italy's freedom of navigation, the Arbitral Tribunal likewise finds that the communication from the Dornier and the ICGS “Lakshmibai” did not, any more than the MRCC's telephone and e-mail communications, violate Italy's freedom of navigation.
(ii) Alleged “ruse”
483. In connection with MRCC Mumbai's communications, Italy also alleges that India perpetrated a “ruse”, a “misdirection”, and “trickery” in order to bring the “Enrica Lexie” into India's territorial waters,Footnote 831 and that this constitutes interference with freedom of navigation.Footnote 832 According to Italy, had the ruse not achieved its purpose, the Indian Coast Guard was prepared to compel the “Enrica Lexie” into India's territorial sea as evidenced by the boarding preparations and presence of a police contingent in the ICGS “Lakshmibai”.Footnote 833 India refutes these allegations.Footnote 834
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485. Italy, as “the litigant seeking to establish a fact”,Footnote 840 carries the burden of proof with regard to its allegation that the Indian authorities perpetrated a ruse in order to bring the “Enrica Lexie” into India's territorial waters. The Arbitral Tribunal recalls that there is no transcript of the telephone call. The record of the discussion undertaken during the telephone call in the Log Book indicates that MRCC Mumbai “told us that they had been informed about the suspect pirate attack and, as a result, had seized two crafts”.Footnote 841 Captain Noviello, in his statement before the Deputy Public Prosecutor, stated that “the MRCC of Bombay called and I was first to talk with them. I was told that they had caught two boats suspected to be pirate boats and invited us to return to Cochin to make an identification and provide evidence”. Footnote 842 This is consistent with the statement of Mr. Gupta, who spoke with the MRCC and who reported that the MRCC had advised that “they came to know that our vessel had a suspected pirate attack and in lieu of this they have caught 2 boats with suspected pirates”.Footnote 843 It is thus established, in the view of the Arbitral Tribunal, that reference to the capture of two suspected pirate boats was made during the telephone call. The e-mail message following the telephone call, on the other hand, made no reference to the capture of such boats.
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488. In the view of the Arbitral Tribunal, however, the question of the precise timing of the e-mail can remain open since, even if Italy is right that the e-mail played no role in prompting the change of course, Italy has not established that India perpetrated a ruse. The Arbitral Tribunal recalls that Captain Vitelli and the Italian authorities were aware that a shooting incident had occurred, and that it involved the Marines stationed on the “Enrica Lexie” as VPDs. Captain Vitelli and those on board the “Enrica Lexie”, conscious that they had received only limited information and that the Indian authorities themselves, at the time of the call, only had limited information, chose not to seek or wait for further clarification but proceeded voluntarily to Kochi. Captain Vitelli testified that he felt free to alter course so as to return to his original courseFootnote 847 even after he had received the e-mail, but he “wasn't even considering this”.Footnote 848 There is no evidence in the conduct of Captain Vitelli following the receipt of the telephone call, and no indication in his oral testimony before the Arbitral Tribunal, that he gave specific thought to the form and scope of the investigation that India intended to conduct. Rather, Captain Vitelli appears to have been focused on what he saw as a seaman's duty to cooperate with the Indian authorities.
489. Finally, the Arbitral Tribunal observes that, while it seems likely that MRCC Mumbai received further information regarding the role of the “Enrica Lexie” and the Marines in the incident after the telephone call, it did not pass such information on to the “Enrica Lexie”, by e-mail or otherwise. However, the fact that the “Enrica Lexie” was somewhat left in the dark as to the evolution of the Indian investigations cannot be equated with ruse or trickery. The Arbitral Tribunal, thus, concludes that Italy has not discharged its burden of proof in this respect. Having so concluded, the Arbitral Tribunal finds that India did not interfere with Italy's freedom of navigation by perpetrating a ruse.
iii. Alleged interdiction
490. Italy further alleges that India interdicted the “Enrica Lexie” in its exclusive economic zone and thus violated Italy's freedom of navigation.
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494. No boarding or arrest of the “Enrica Lexie” took place when the vessel was in India's exclusive economic zone. The Arbitral Tribunal is not prepared to speculate as to whether the Indian Coast Guard might have used force to compel the “Enrica Lexie” to head to Kochi, or boarded the vessel, had this become necessary. According to the evidence before the Arbitral Tribunal, no such instructions had been given,Footnote 861 boarding drills were routine on all missions,Footnote 862 and the reason for the presence of police officers in the ICGS “Lakshmibai” was that firing had been reported, thus making the incident a police case.Footnote 863
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iv. Alleged escort
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503. The Arbitral Tribunal observes that the ICGS “Lakshmibai” had a police contingent on board.Footnote 880 Commandant [redacted] testified, however, that “[a]ll the weapons” in the ICGS “Lakshmibai” “were locked in [the] armoury”.Footnote 881 There is also no indication that the crew of the ICGS “Lakshmibai” made any preparations to threaten or use armed force against the “Enrica Lexie”, aside from the boarding drills that were undertaken while setting sail, which, as noted previously, were routine on all missions.Footnote 882 Without sufficient evidence to support Italy's allegation that the purpose of the escort was the apprehension of the “Enrica Lexie”, there is no basis for the Arbitral Tribunal to so conclude. The Arbitral Tribunal thus finds that the escort of the “Enrica Lexie” by the Dornier aircraft and Indian naval vessels did not amount to a breach of Italy's freedom of navigation.
504. Finally, the Arbitral Tribunal notes Italy's argument that the evidence on the record permits the conclusion that, since the “Enrica Lexie” initially had no intention of proceeding to the Indian coast, there was a “causal effect” of India's intervention on the “Enrica Lexie”’s turn for Kochi.Footnote 883 While such a causal effect is undeniable, in the sense that, had the MRCC not requested the “Enrica Lexie” to proceed to Kochi, the “Enrica Lexie” would not have changed course, such effect is too remote to amount to “interference” with Italy's freedom of navigation.
505. For the reasons set out above, the Arbitral Tribunal concludes that India has not interfered with Italy's freedom of navigation, and thus it has not acted in breach of Article 87, paragraph 1, subparagraph (a), of the Convention.
(c) Interpretation and Application of Article 92 (Flag-State Jurisdiction)
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iii. Analysis of the Arbitral Tribunal
521. Italy claims that India breached Article 92, paragraph 1, of the Convention by exercising jurisdiction over the “Enrica Lexie” while it was in India's exclusive economic zone.Footnote 922
522. Article 92, paragraph 1, concerning status of ships reads as follows:
Article 92 Status of ships
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
523. Article 92 applies to the exclusive economic zone by virtue of Article 58, paragraph 2, of the Convention, which extends Articles 88 to 115 to the exclusive economic zone.
(a) The concept of exclusive jurisdiction of the flag State
524. The principle of exclusive flag State jurisdiction has been recognised as an “essential adjunct[] to the principle of the freedom of the seas”Footnote 923 or a “corollary of the open and free status of the high seas”.Footnote 924
525. The concept of “jurisdiction”, derived from the Latin juris dicere (literally: “to speak the law”), while broadly used in international law, remains largely undefined in the case law of international courts and tribunals.
526. One may distinguish between prescriptive jurisdiction, adjucative jurisdiction, and enforcement jurisdiction.Footnote 925 Prescriptive jurisdiction is the authority of a State to make laws in relation to persons, property, or conduct; adjudicative jurisdiction is the authority of a State to apply law to persons or things; and enforcement jurisdiction is the authority of a State to exercise its power to compel compliance with law. Under international law, the exercise of jurisdiction by a State entails an element of prescribing laws, rules, or regulations over conduct, or applying or enforcing such laws, rules, or regulations over persons or property.
527. It follows from the above analysis that the principle of exclusive flag State jurisdiction under the Convention is violated when a State other than the flag State seeks to prescribe laws, rules, or regulations over a ship of the flag State, or applies or enforces such laws, rules, or regulations in respect of such a ship. The Arbitral Tribunal also recalls in this respect the observation of ITLOS in M/V “Norstar” that the principle of exclusive flag State jurisdiction “prohibits not only the exercise of enforcement jurisdiction on the high seas by States other than the flag State but also the extension of their prescriptive jurisdiction to lawful activities conducted by foreign ships on the high seas”.Footnote 926
(b) Examination of India's conduct vis-à-vis the “Enrica Lexie”
528. The Arbitral Tribunal now turns to Italy's claim that “[b]y directing the Enrica Lexie to proceed to Kochi while it was navigating beyond India's territorial sea, by interdicting it, and by escorting it to Kochi, India […] breached Italy's right to exclusive jurisdiction over the Enrica Lexie under Article 92(1) of UNCLOS”.Footnote 927
529. The Arbitral Tribunal recalls its factual findings made in the context of its analysis of Article 87, paragraph 1, subparagraph (a). In particular, the Arbitral Tribunal recalls that at 18:30 SMT/19:00 IST, MRCC Mumbai requested the “Enrica Lexie” to proceed to Kochi “to take stock of events and bear witness”.Footnote 928 According to Mr. Gupta, the “Enrica Lexie” was requested to “approach to Cochin Port as they wanted the Master to give his statement and witness”.Footnote 929 This request was followed by a written message stating: “You are requested to head for Kochi and establish communication with Indian Coast Guard […] for further deposition/clarification”.Footnote 930 In the view of the Arbitral Tribunal, it is possible to interpret the communications from MRCC Mumbai, as their wording indeed suggests, as mere requests.
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531. In the view of the Arbitral Tribunal, Italy has not discharged its burden of proving that the requests from the MRCC were in fact directions or orders, having an element of enforcement jurisdiction.
532. Additionally, while the Indian Coast Guard deployed an aircraft and naval vessels to “conduct search for suspected vessel between Kollam and Kadungalloor”,Footnote 935 to “render assistance for apprehension of suspect vessel”,Footnote 936 and to “interrogate/identify all the merchant vessels in the area” in search of the vessel involved in the firing,Footnote 937 the aircraft and vessels did not, in fact, carry out any enforcement measures, such as boarding or detention, while the “Enrica Lexie” was in India's exclusive economic zone. Rather, at 19:20 SMT/19:50 IST, the Dornier aircraft located and arrived above the “Enrica Lexie” and “directed them to amend the course and proceed to Kochi harbour”.Footnote 938 Subsequently, at 19:45 SMT/20:15 IST, the “Enrica Lexie” responded to the ICGS “Lakshmibai”’s VHF call and the ICGS “Lakshmibai” “also directed the vessel to proceed towards Kochi”.Footnote 939
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534. The Arbitral Tribunal finally recalls that it cannot answer conclusively, on the evidentiary record before it, whether the Indian Coast Guard might have had recourse to force or the threat of force to compel the “Enrica Lexie” to head to Kochi, had it not pursued that course voluntarily.
535. In the view of the Arbitral Tribunal, Italy has not discharged its burden of proving that the Indian Coast Guard, by “interdicting” and “escorting” the “Enrica Lexie”, exercised enforcement jurisdiction.
536. In conclusion, the conduct of the Indian authorities while the “Enrica Lexie” was in India's exclusive economic zone did not amount to an exercise of jurisdiction. The Arbitral Tribunal accordingly finds that India did not violate Article 92, paragraph 1, of the Convention.
2. Alleged Breaches by India of Article 97 of UNCLOS
537. The Parties also differ over the interpretation and application of Article 97 of the Convention, which, by virtue of Article 58, applies in the exclusive economic zone. Article 97 provides:
Article 97
Penal jurisdiction in matters of collision or any other incident of navigation
1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.
538. In particular, the Parties disagree as to whether Article 97, paragraphs 1 and 3, applies to the facts of this dispute, and further whether India has breached these provisions by exercising jurisdiction over the Marines and the “Enrica Lexie”.
539. Instead of Article 97 of the Convention, India contends that the residual clause in Article 59 of the Convention applies. Italy disputes this claim. Article 59 of the Convention provides:
Article 59
Basis for the resolution of conflicts regarding the attribution of rights and jurisdiction in the exclusive economic zone
In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.
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(d) Analysis of the Arbitral Tribunal
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636. Italy submits that Article 97 applies to the incident of 15 February 2012 because the Marines were persons “in the service of the ship” during a “collision or any other incident of navigation”,Footnote 1179 and Italy is the flag State of the “Enrica Lexie”. Italy contends that only it had the authority to institute penal or disciplinary proceedings against the Marines and detain the “Enrica Lexie”, as either the flag State of the ship or the Marines’ State of nationality.Footnote 1180 In Italy's view, India breached Article 97, paragraphs 1 and 3, of the Convention by violating Italy's exclusive jurisdiction to prosecute the Marines and by detaining the “Enrica Lexie”.Footnote 1181
637. India denies that it breached any provision in Article 97 of the Convention and instead maintains that the Article does not apply to this dispute because it did not involve an “incident of navigation”, and the Marines were not persons “in the service of the ship”.Footnote 1182
i. The Definition of “Incident of Navigation” under Article 97 of the Convention
638. The phrase “incident of navigation” is not defined in the Convention. In accordance with Article 31, paragraph 1, of the VCLT, therefore, it must be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.Footnote 1183
639. The dictionary meaning of the term “incident” is a “distinct occurrence or event, esp[ecially] one that attracts general attention or is noteworthy in some way”.Footnote 1184 The term “navigation” refers to the “action or practice of travelling on water; sailing”; the “art or science of directing a ship, boat”,Footnote 1185 and the verb “to navigate” means to “sail, direct, manage, a ship”.Footnote 1186 Thus, based on the ordinary meaning of the phrase, an “incident of navigation” should involve, at least, a distinct or noteworthy event that occurs in relation to the movement and directing or manoeuvring of a ship.
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644. The object and purpose of Article 97 of the Convention sheds further light on the meaning of “incident of navigation”. In its commentary to Article 35 of the ILC Draft Articles Concerning the Law of the Sea, the precursor to Article 97 of the Convention, the ILC explained that the provision was intended to reverse the judgment rendered by the PCIJ in the S.S. “Lotus” case.Footnote 1187 That case turned on the question whether Turkey could exercise penal jurisdiction over the French officer-in-charge for the purposes of holding him to account for a high seas collision between his ship (the “Lotus”) and a Turkish ship (the “Boz-Kourt”) that resulted in the loss of eight lives aboard, and severe damage to, the latter, “which was cut in two [and] sank”.Footnote 1188
645. The PCIJ's judgment, which decided that both France and Turkey were entitled to exercise penal jurisdiction over the French officer, was reversed with “the object of protecting ships and their crews from the risk of penal proceedings before foreign courts in the event of collision on the high seas, since such proceedings may constitute an intolerable interference with international navigation”.Footnote 1189 Article 35 of the ILC Draft Articles Concerning the Law of the Sea accordingly reserved exclusive penal jurisdiction to either the flag State of the ship on which the accused person serves, or the State of which the accused person is a national, with the latter addition made “in order to enable States to take penal or disciplinary measures against their nationals serving on board foreign vessels who are accused of causing collisions”.Footnote 1190
646. It is thus apparent that an exception to the otherwise prevailing rules on allocating jurisdiction was created specifically for a situation where the master or any other person in the service of a ship are at risk of facing penal proceedings before foreign courts in respect of navigational conduct on the high seas; such risk would typically arise only where some form of damage or harm has occurred as a result of navigation.
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648. In this regard, the travaux préparatoires of Article 97 of the Convention similarly support the view that “incident of navigation” refers to an event that occurs in relation to the movement and manoeuvring of the ship and which is alleged to have caused some form of serious damage or harm to the ships involved, their cargo, or the individuals on board.
649. During the discussion in the ILC of Article 35 of the ILC Draft Articles Concerning the Law of the Sea, all examples of “incidents of navigation” that were raised concerned the manoeuvring of the ship and damage caused by the operation of the vessel.Footnote 1192 In its commentary to Article 35 of the ILC Draft Articles Concerning the Law of the Sea, the ILC also described “incident of navigation” as including “damage to a submarine telegraph, telephone or high-voltage power cable or to a pipeline”.Footnote 1193 It is on this basis that a scholarly commentary to the Convention, to which the Parties referred during the Hearing,Footnote 1194 considered that “other incidents of navigation” were “incidents caused either by the execution or non-execution of a manoeuvre or by the non- observance of regulations, even if no collision has taken place”.Footnote 1195
650. On the basis of the above analysis, in the view of the Arbitral Tribunal, the phrase “incident of navigation” within the meaning of Article 97, paragraph 1, of the Convention, refers to an event that (i) occurs in relation to the movement and manoeuvring of a ship; and (ii) which allegedly causes some form of serious damage or harm, including to the ships involved, their cargo, or the individuals on board.
ii. Application of Article 97, paragraph 1, of the Convention to the Incident of 15 February 2012
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652. The Arbitral Tribunal observes that it is undisputed between the Parties that no collision occurred between the “Enrica Lexie” and the “St. Antony” on 15 February 2012. In the view of the Arbitral Tribunal, there was a risk of collision. However, no damage resulted from the manoeuvring or movement of a ship. While the “St. Antony” was indeed damaged and two Indian fishermen on board lost their lives during the incident, this damage and mortal harm were not caused by the movement or manoeuvring of either ship.
653. The Arbitral Tribunal is unconvinced by the argument that the damage to the “St. Antony” and the death of the Indian fishermen related to navigation because the origin of the entire incident was the course steered by each of the two approaching vessels, that then led the Marines to apprehend a threat of piracy and fire a series of warning shots in the direction of the approaching fishing vessel, thereby causing damage to the “St. Antony” and harm to its crew. The link between any navigational aspect of the incident, on the one hand, and the damage and harm caused, on the other hand, is too tenuous to sustain the claim that the firing of shots by the Marines related to navigation.
654. Unlike the S.S. “Lotus” case, where the death of the eight Turkish nationals on board the “Boz- Kourt” was directly caused by the collision of the two vessels, thus raising questions of criminal responsibility of the lieutenant on watch duty with responsibility for the navigation of the “Lotus”,Footnote 1196 the direct cause of the death of the two Indian fishermen on board the “St. Antony” would have been the firing of shots by the Marines, who themselves were not involved with the navigation of the “Enrica Lexie”. This is consistent with the division of responsibilities set out in Article 4.2 of the Template Agreement and the VPD Manual, both of which make clear that “[d]ecisions regarding navigation and manoeuvring the Vessel shall be included within the competence of the Ship master” and not the VPD.Footnote 1197
655. While the acts for which the Marines are being prosecuted, and the harm caused by those acts, took place while two ships were sailing in the exclusive economic zone of India, they are not caused by the movement or manoeuvring of those ships and cannot be said to have been part of an “incident of navigation”.
656. For the foregoing reasons, no “incident of navigation” has occurred that would trigger the application of Article 97, paragraph 1, of the Convention. While there also is some doubt as to whether the Marines qualify as “other person[s] in service of the ship”, given that they are not involved with its navigation or manoeuvring, there is no need for the Arbitral Tribunal to further address this question, since it has already established that Article 97 does not apply in this dispute.
657. Accordingly, Italy's claim that India has violated Article 97, paragraph 1, of the Convention is rejected.
iii. Application of Article 97, paragraph 3, of the Convention to the Incident of 15 February 2012
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659. The Arbitral Tribunal observes that it follows from the title of Article 97 that it governs the exercise of penal jurisdiction only in matters of collision or any other incident of navigation. As has been determined by the Arbitral Tribunal in the preceding analysis on a possible applicability of paragraph 1 of Article 97, in the case of the incident that took place on 15 February 2012, there was no collision or any other incident of navigation during that incident. Consequently, Article 97, paragraph 3, is not applicable in the present case as well.
3. Alleged Violations by India of Articles 100 and 300 of UNCLOS
660. The Parties differ over their interpretation and application of Articles 100 and 300 of the Convention, which address, respectively, the duty to cooperate in the repression of piracy, and good faith and abuse of rights. Article 100 provides:
Article 100
Duty to cooperate in the repression of piracy
All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.
661. Article 300 of the Convention provides:
Article 300
Good faith and abuse of rights
States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.
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(c) Analysis of the Arbitral Tribunal
719. Italy submits that if the Arbitral Tribunal were to find that India was not in breach of Articles 87, 92, and 97 of the Convention, then India would nonetheless have breached Article 100 read with Article 300 of UNCLOS.Footnote 1311 Italy, in its final submission (quoted in paragraph 75 above), states that “India abused its right to seek Italy's cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS”.
720. Italy claims that India violated Article 100 of UNCLOS because the real motive of India in directing the “Enrica Lexie” to proceed to port was not to seek assistance with an investigation of piracy but to obtain custody of those who allegedly fired shots at the “St. Antony”.Footnote 1312 Italy further claims that India violated Article 100 in bad faith, thus violating Article 300 of UNCLOS as well.Footnote 1313
721. India denies these allegations by pointing out that the available information proves that, by directing the “Enrica Lexie” to proceed to Kochi, the competent Indian authorities “wanted to ascertain the facts, without prejudging them”.Footnote 1314 India stresses that “[t]he fight against piracy cannot serve as an excuse for criminal acts or to legitimize unfounded claims”.Footnote 1315
722. The Arbitral Tribunal notes that Article 100 does not stipulate the forms or modalities of cooperation States shall undertake in order fulfil their duty to cooperate in the repression of piracy. In its commentary to Article 38 of the ILC Draft Articles Concerning the Law of the Sea, the forerunner of Article 100 of the Convention, the ILC made the following observation:
Any state having an opportunity of taking measures against piracy, and neglecting to do so, would be failing in a duty laid upon it by international law. Obviously, the State must be allowed a certain latitude as to the measures it should take to this end in any individual case.Footnote 1316
723. The duty to cooperate under Article 100 of the Convention “does not necessarily imply a duty to capture and prosecute pirates”. Footnote 1317 Rather, States’ obligations under Article 100 can be implemented, for example, by including “in their national legislation provisions on mutual assistance in criminal matters, extradition and transfer of suspected, detained and convicted pirates” or conclusion of “bilateral and multilateral agreements or arrangements in order to facilitate such cooperation”.Footnote 1318 This is consistent with other provisions of the Convention prescribing a duty to cooperate as “a duty of a continuing nature – an obligation of conduct rather than a one-time commitment or result”.Footnote 1319
724. In this regard, the Arbitral Tribunal notes that India has provided sufficient information confirming that it has taken and is taking active steps to prevent piracy attempts at sea and plays an active role in this regard within the framework of the ReCAAP, launched in November 2006.Footnote 1320
725. Moreover, the Arbitral Tribunal notes that when MRCC Mumbai first contacted the “Enrica Lexie” by telephone and instructed it to change course and head towards Kochi, the MRCC explained that this was necessary in order to “take stock of events” in connection with the information it had received about the suspected pirate attack,Footnote 1321 which is evidence of India's willingness to cooperate in the repression of piracy. Therefore, given that “the State must be allowed a certain latitude as to the measures it should take”,Footnote 1322 the Arbitral Tribunal does not find that India breached its obligation to cooperate in the repression of piracy, even from the viewpoint that “States may not lightly decline to intervene against acts of piracy”.Footnote 1323
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727. Further, the Arbitral Tribunal observes that as reflected in the ILC's commentary cited above, the threshold for accusing a State of violating Article 100 of UNCLOS is relatively high, and Italy has not provided sufficient evidence to discharge its burden of proof in this regard.
728. Accordingly, the Arbitral Tribunal concludes that India has not violated its duty to cooperate in the repression of piracy under Article 100 of the Convention.
729. With reference to Italy's allegation of the violation by India of Article 300 of the Convention, the Arbitral Tribunal notes that in the M/V “Norstar” case, ITLOS stated:
article 300 of the Convention cannot be invoked on its own. Therefore, a State Party claiming a breach of article 300 must first identify “the obligations assumed under this Convention” that are not fulfilled in good faith or “the rights, jurisdiction and freedoms recognized in this Convention” that are exercised in an abusive manner. The State Party then has to establish a link between its claim under article 300 and “the obligations assumed under this Convention” or “the rights, jurisdiction and freedoms recognized in this Convention”.Footnote 1324
730. Consequently, the Arbitral Tribunal finds that, in light of its conclusion that India has not violated Article 100 of the Convention, Article 300 cannot be invoked in the present case.
4. Remedies
731. […] considering that the Arbitral Tribunal has concluded that India has not violated Articles 87, 92, 97, or 100 in conjunction with 300, there is no need for the Arbitral Tribunal to consider the question of remedies in this respect.
C. Alleged Violation by India of the Immunity of the Marines
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1. Jurisdiction
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(a) Jurisdiction pursuant to Article 288, paragraph 1, in Conjunction with Article 2, paragraph 3, Article 56, paragraph 2, and Article 58, paragraph 2, of UNCLOS
734. Italy submits that the question whether the Marines enjoy immunity from Indian criminal jurisdiction concerns the interpretation and application of the Convention in view of Article 2, paragraph 3; Article 56, paragraph 2; and Article 58, paragraph 2, of UNCLOS, which “import immunity by renvoi”.Footnote 1325
735. Article 288, paragraph 1, of the Convention provides:
Article 288 Jurisdiction
1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.
736. Article 2, paragraph 3, of the Convention provides:
Article 2
Legal status of the territorial sea, of the air space over the territorial sea and of its bed and subsoil
3. The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.
737. Article 56, paragraph 2, of the Convention provides:
Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.
738. Article 58, paragraph 2, of the Convention provides:
Article 58
Rights and duties of other States in the exclusive economic zone
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
739. India denies that Italy's claim concerns the interpretation and application of any provision of the Convention.1326
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(b) Jurisdiction pursuant to Article 297, paragraph 1, of UNCLOS
779. As a “subsidiary argument”, Italy asserts that the Arbitral Tribunal may also rely on Article 297, paragraph 1, of the Convention which, according to Italy, “extends the jurisdiction of a court or tribunal established in accordance with Part XV of UNCLOS beyond Article 288(1)” and effects a renvoi to other sources of law.Footnote 1425
780. Article 297, paragraph 1, of the Convention provides, in relevant part:
Article 297
Limitations on applicability of section 2
1. Disputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction provided for in this Convention shall be subject to the procedures provided for in section 2 in the following cases:
(a) when it is alleged that a coastal State has acted in contravention of the provisions of this Convention in regard to the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in article 58;
(b) when it is alleged that a State in exercising the aforementioned freedoms, rights or uses has acted in contravention of this Convention or of laws or regulations adopted by the coastal State in conformity with this Convention and other rules of international law not incompatible with this Convention;
781. India disagrees with Italy's interpretation of Article 297, paragraph 1, of the Convention, and maintains that it does not provide a ground for the Arbitral Tribunal to have jurisdiction over Italy's claim regarding the alleged violation of the Marines’ immunities.
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(c) Analysis of the Arbitral Tribunal
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798. However, in the view of the Arbitral Tribunal, these Articles are not pertinent and applicable in the present case. Article 2, paragraph 3; Article 56, paragraph 2; and Article 58, paragraph 2, of the Convention apply to the exercise of rights and duties in the territorial sea and the exclusive economic zone by coastal States, while the evidence in the present case demonstrates that India enforced its jurisdiction over the Marines only in its internal waters and on land, when the Marines were arrested and detained.Footnote 1447 Although the Indian authorities boarded the “Enrica Lexie” and conducted preliminary investigations when it was anchored in India's territorial sea, it was only when the “Enrica Lexie” was docked at Kochi harbour that the Indian authorities disembarked the Marines for questioning and arrested them.Footnote 1448
799. Articles 95 and 96, also invoked by Italy, do not address the immunity of persons, namely individuals who may be described as State officials. They address, first in Article 95, the immunity of warships, and second in Article 96, the immunity of ships “owned or operated by a State and used only on government non-commercial service”. The word “only” in Article 96 is of specific significance, and indicates that even if the vessel is not a warship, it must still be owned or operated by a State and exclusively dedicated to government non-commercial service. The Arbitral Tribunal is therefore of the view that these two articles are not applicable to Italy's claim.
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801. The Arbitral Tribunal observes that in the Chagos Marine Protected Area Arbitration, the arbitral tribunal found that Article 297, paragraph 1, subparagraph (a), “includes a renvoi to sources of law beyond the Convention itself”. The arbitral tribunal made this finding in the context of considering “other internationally lawful uses of the sea specified in article 58”.Footnote 1450 However, Article 58 does not apply to the present dispute, nor does Article 297, paragraph 1, subparagraph (a).
802. As to Article 297, paragraph 1, subparagraph (b), of the Convention, the Arbitral Tribunal notes that the subject matter of the Parties’ dispute does not pertain to the exercise of freedoms, rights and uses of the sea “in contravention of … the laws and regulations adopted by the coastal State in conformity with this Convention and other rules of international law not incompatible with this Convention”.Footnote 1451 Consequently, the Arbitral Tribunal is of the view that Article 297, paragraph 1, subparagraph (b), is not relevant to the present case.
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806. The issue of entitlement to exercise jurisdiction encompasses, but is not conclusively answered by, the question as to whether the Marines enjoy immunity from jurisdiction in respect of acts that they undertook during the incident. In fact, both Italy and India have presented various other arguments, unrelated to the question of immunity, as to why each of them should or should not be entitled to exercise jurisdiction under different provisions of the Convention. Thus the question of the immunity of the Marines is one aspect out of several, albeit an important one, that requires examination in resolving the Parties’ dispute.
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808. Immunity from jurisdiction, by definition, operates as an exception to an otherwise-existing right to exercise jurisdiction. Whether that exception applies in the present case is a question that forms an integral part of the Arbitral Tribunal's task to determine which Party may exercise jurisdiction over the Marines. The Arbitral Tribunal could not provide a complete answer to the question as to which Party may exercise jurisdiction without incidentally examining whether the Marines enjoy immunity. The issue of immunity of the Marines, in the words of the PCIJ in the Case Concerning Certain German Interests belongs to those “questions preliminary or incidental to the application”Footnote 1454 of the Convention.
809. The Arbitral Tribunal considers that, while the Convention may not provide a basis for entertaining an independent immunity claim under general international law, the Arbitral Tribunal's competence extends to the determination of the issue of immunity of the Marines that necessarily arises as an incidental question in the application of the Convention.
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811. The Arbitral Tribunal finds that examining the issue of the immunity of the Marines is an incidental question that necessarily presents itself in the application of the Convention in respect of the dispute before it, namely which Party is entitled to exercise jurisdiction over the incident of 15 February 2012 involving the “Enrica Lexie” and the “St. Antony”. The Arbitral Tribunal accordingly concludes that it has jurisdiction to deal with the question of immunity of the Marines in the present dispute.
2. Immunity Ratione Materiae of the Italian Marines as Applicable in the Context of UNCLOS
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(c) Analysis of the Arbitral Tribunal
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839. Pursuant to Article 58, paragraph 2, and Article 92, each Party has exclusive jurisdiction over their respective ship involved in the incident, namely, Italy over the “Enrica Lexie” and India over the “St. Antony”. The Parties therefore have concurrent jurisdiction over the incident.
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841. A question therefore arises whether India, as the flag State of the “St. Antony”, on which the effects of the Marines’ alleged offences – the death of Mr. Ajeesh Pinku and Mr. Jelastine Valentine – occurred, has in principle the right to exercise jurisdiction over the Marines or whether such exercise of jurisdiction is precluded because the Marines enjoy immunity under international law.
842. To answer this question the Arbitral Tribunal must consider whether the Marines are entitled to immunity ratione materiae for the acts that they committed in relation to the incident of 15 February 2012. Since there is no provision in the Convention that expressly addresses the immunity ratione materiae of State officials, the Arbitral Tribunal will examine how this matter is governed by customary international law.
i. Immunity Ratione Materiae under Customary International Law
843. Under customary international law, immunity ratione materiae from foreign criminal jurisdiction is accorded to State officials in respect of their “official acts” or “acts performed in an official capacity”.
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ii. Immunity Ratione Materiae of the Marines as Applicable in the Context of the Present Case
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(a) Qualification of the Marines as State officials
848. Immunity ratione materiae is enjoyed by State officials in general, irrespective of their position in the hierarchy of the State,Footnote 1531 and includes members of a State's armed forces on official duties.Footnote 1532
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853. In their role as members of the Italian Navy, the Marines were subject to a military chain of command,Footnote 1539 and in their role as officers and agents of the judicial police, the Marines were under the direct control of the judiciary.Footnote 1540
854. Although shipowners contributed to the expense of stationing a VPD on board their ship, such contribution was, as described in the Template Agreement, for the purposes of “repay[ing] [to the Italian Ministry of Defence] costs incurred for the employment of the VPD, including ancillary costs for personnel, operation and in-area logistic support”.Footnote 1541 This reimbursement to the Italian government, as opposed to a direct payment of salaries by the shipowners, is a standard and common practice designed to simply compensate the Ministry of Defence for the costs incurred by the VPD when stationed on board a vessel. As such, it does not detract from the extensive evidence demonstrating that, as part of a VPD, established “[i]n the context of the international activities aimed at combating piracy for the purposes of ensuring freedom of navigation of national merchant vessels”,Footnote 1542 the Marines were members of the Italian Navy, and officers and agents of the judicial police.
855. The Marines are therefore “State officials of the Italian Republic” for the purpose of determining their entitlement to immunity ratione materiae because they were and remain members of the Italian Navy and officers and agents of the judicial police entrusted with guaranteeing the maritime defence of the State.
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(b) Exercise by the Marines of official functions
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859. […] The fact that the Marines were stationed on a merchant vessel, and not a warship, in the view of the Arbitral Tribunal, does not alter their status and the character of their mission as part of the VPD, undertaking acts in an official capacity attributable to the Italian State.Footnote 1550
860. Similarly, even if the Marines’ acts might be found to be ultra vires or contrary to their instructions or orders (a question that this Arbitral Tribunal does not prejudge in the present proceedings), this would not preclude them from enjoying immunity ratione materiae as long as they continued to act in the name of the State and in their “official capacity”. Footnote 1551 This is corroborated by Article 7 of the ILC Draft Articles on State Responsibility, which provides that conduct by a State organ acting in its official capacity shall be attributable to the State “even if it exceeds its authority or contravenes instructions”.Footnote 1552
861. During the incident, Sergeant Latorre engaged his chain of command by activating radio communication with other members of the VPD, donned his personal protection equipment, and positioned himself on the starboard wing of the bridge.Footnote 1553 As the craft approached the “Enrica Lexie”, the Marines appeared to have followed the applicable rules of engagement by implementing visual signals to alert the presence of military personnel on board,Footnote 1554 monitoring the approaching craft, and firing warning shots in the proximity of a suspected pirate vessel or craft to force them to implement specific kinematic manoeuvers.Footnote 1555
862. Thus, regardless of whether the Marines’ acts were ultra vires or unlawful, in the view of the Arbitral Tribunal, the evidence demonstrates that during the incident the Marines were under an apprehension of a piracy threat and engaged in conduct that was in the exercise of their official functions as members of the Italian Navy and of a VPD.
(c) Applicability of the territorial tort exception
863. Having found that the Marines were State officials acting in their official capacity during the incident of 15 February 2012, the Arbitral Tribunal must finally consider whether they might still be precluded from enjoying immunity ratione materiae as a result of the application of the “territorial tort” exception.
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865. The Arbitral Tribunal observes that the concept of a “territorial tort” exception was incorporated in Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Property.Footnote 1558 This convention was concluded for the purpose of enhancing the rule of law and legal certainty, particularly in the dealings of States with natural or juridical persons, and of contributing to the codification and development of international law and the harmonisation of practice. This convention has not yet entered into force. It has been signed but not ratified by India, and was acceded to by Italy on 6 May 2013.
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867. Article 12 of the aforementioned convention establishes two criteria that must be met to apply a concept of the “territorial tort” exception. This Article states the following:
Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.
868. Thus, in any case, regardless of whether the “territorial tort” exception is recognised under customary international law, the Arbitral Tribunal observes that, to the extent the rule is thought to exist, there is a general understanding that it would only apply in cases where (i) the acts at issue were committed in the territory of the forum State; (ii) by a foreign official who had been present in the territory of that State at the time of the acts at issue without the State's express consent for the discharge of his or her official functions.Footnote 1559
869. With regard to the first criterion established by Article 12, the Arbitral Tribunal would note that, especially prior to the nineteenth century, in reference to the jurisdictional relationship between a ship and its flag State, the ship was occasionally viewed as an “ambulatory province” or “floating island” of the State under whose flag it sailed.Footnote 1560 However, the legal fiction that ships may be assimilated for jurisdictional purposes with land territory of the flag State has since been universally rejected.Footnote 1561
870. There is no support for the proposition that the second condition – the presence of a foreign official in the territory of the forum State without the State's consent – is dispensable. To the contrary, commentary on this subject underscores the importance of the presence of the foreign official in the territory of that State at the time of the acts at issue, and whether such presence was with or without the State's express consent for the discharge of his or her official functions, for the exception to apply.Footnote 1562
871. In the present case, it is undisputed that the Marines were on board the “Enrica Lexie”, and not on Indian territory, when they committed the acts at issue.Footnote 1563 As such, there was no situation in which the Indian government's consent for the discharge of the Marine's official functions could have been required or sought, and no intentional breach of India's sovereignty can be imputed to the Marines or the Italian State.
872. The Arbitral Tribunal is of the view that for the reasons referred to above, even if a “territorial tort” exception were recognised under customary international law, the exception would not apply in this case.
(d) Conclusion
873. In light of the foregoing, the Arbitral Tribunal concludes that the Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012 because (i) immunity of State officials is a well established rule of customary international law; (ii) the Marines are State officials who were acting in their official capacity during the incident; and (iii) to the extent that the “territorial tort” exception is a customary rule of international law, it would in any event not apply in this case because the Marines were not on Indian territory when they committed the acts at issue.
874. The Arbitral Tribunal accordingly finds that the Marines enjoy immunity in relation to the acts that occurred during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines.
3. Remedies
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(c) Analysis of the Arbitral Tribunal
888. The Arbitral Tribunal notes that, in accordance with Article 30, paragraph (a), of the ILC Draft Articles on State Responsibility, the State responsible for an internationally wrongful act is under an obligation “to cease that act, if it is continuing”.Footnote 1585 Accordingly, the Arbitral Tribunal decides that India must take the necessary steps in order to cease to exercise its criminal jurisdiction over the Marines.
889. In reaching this decision, the Arbitral Tribunal has taken note of the commitment expressed by Italy on several occasions during these proceedings, and in particular at the Hearing, that Italy, following the issuance of this Award, will resume its criminal investigation into the events of 15 February 2012 and that both Parties will cooperate with each other in pursuit of that investigation that would follow the evidence wherever it may lead.Footnote 1586 The Arbitral Tribunal considers that no other remedies are required at this stage.
D. Applicability of Article 59 of UNCLOS
890. The Arbitral Tribunal will finally address the applicability of Article 59 of the Convention, to which both Parties referred on a subsidiary basis, for the resolution of the present dispute.
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3. Analysis of the Arbitral Tribunal
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905. Article 59 conditions its application in a twofold manner. First, there must be a situation where the Convention does not attribute rights and jurisdiction to either the coastal State or other States within the exclusive economic zone. Second, a conflict must arise between the interests of the coastal State and any other State or States.
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908. In considering the claims presented by Italy and counter-claims presented by India, the Arbitral Tribunal has considered several provisions of the Convention attributing rights or jurisdiction within the exclusive economic zone, which are relevant to the dispute between the Parties. In particular, pursuant to Article 87, paragraph 1, subparagraph (a), read together with Article 58, paragraph 2, Italy is entitled to freedom of navigation in India's exclusive economic zone; pursuant to Article 92, Italy is entitled to exercise exclusive jurisdiction over the “Enrica Lexie”, and India is entitled to exercise exclusive jurisdiction over the “St. Antony”; Article 56 attributes to India rights and jurisdiction in the exclusive economic zone; and pursuant to Article 87, paragraph 1, subparagraph (a), and Article 90, read together with Article 58, paragraphs 1 and 2, India is entitled to enjoy the right and freedom of navigation in the exclusive economic zone.
909. The Arbitral Tribunal thus finds that the present dispute is not a case in which the Convention does not attribute rights and jurisdiction to Italy or India within the exclusive economic zone. In the Arbitral Tribunal's view, therefore, the first condition for the applicability of Article 59 is not met. Given this, there is no need for the Arbitral Tribunal to consider whether the second condition is met.
910. The Arbitral Tribunal concludes that Article 59 of the Convention is not applicable to this dispute.
VI. COUNTER-CLAIMS OF INDIA REGARDING ALLEGED BREACHES BY ITALY OF UNCLOS AND VIOLATIONS OF RIGHTS OF INDIA UNDER UNCLOS
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A. Alleged Breaches by Italy of Provisions of Parts V (Exclusive Economic Zone) and VII (High Seas) of UNCLOS
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1. Alleged Violation by Italy of India's Rights under Article 56 (Rights, Jurisdiction and Duties of the Coastal State in the Exclusive Economic Zone) of UNCLOS
916. The Parties disagree as to whether Italy violated India's sovereign rights in the exclusive economic zone under Article 56 of the Convention.
917. Article 56 provides, in relevant part:
Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
(1.) In the exclusive economic zone, the coastal State has:
(a.) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;
(a) Position of India
918. India submits that, on its account of the “Enrica Lexie” incident, Italy violated India's sovereign rights in the exclusive economic zone provided in Article 56 of the Convention.
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923. According to India, the “St. Antony” was a fishing boat registered in India, with a fishing licence issued by the Indian authorities, and carrying eleven Indian fishermen who were legitimately engaged in fishing activities in India's exclusive economic zone on the day of the incident.1625 By 15 February 2012, the day of the incident, India contends that the “St. Antony” had been engaged for eight days in fishing activities in India's exclusive economic zone,Footnote 1626 “[w]hen the Marines shot at the St Antony with the resulting death of the two crew members, [and] had to cease its fishing activities and […] return to shore”.Footnote 1627
924. Regardless of whether the crew members of the “St. Antony” were fishing at the time of the incident, India maintains that they were engaged in an extended fishing expedition, which was due to continue when the Marines’ actions caused them to cease those activities.Footnote 1628 Therefore, India submits, the Marines’ actions “fundamentally violated India's sovereign rights over fishing in its EEZ, which necessarily includes the right to have its nationals and registered boats operate in the EEZ without being impeded, let alone being fired upon with lethal force”.Footnote 1629
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(b) Position of Italy
934. Italy denies that it ever interfered with India's rights to explore, exploit, conserve, or manage the natural resources in its exclusive economic zone, in breach of Article 56, paragraph 1, subparagraph (a), of the Convention.
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940. Similarly, Italy argues that, even if India's sovereign rights under Article 56 extend to the protection of fishermen, “Article 56(1)(a) does not confer a right on Indian fishermen to fish outside the maritime zone in which they are entitled to operate”.Footnote 1665 In this regard, Italy rejects India's claim that the fishermen on the “St. Antony” were legitimately engaged in fishing activities in India's exclusive economic zone on the day of the incident. According to Italy, the Tamil Nadu Marine Fishing Regulation Act, 1983, under which the “St. Antony” was registered, requires registered fishing vessels to apply “to the authorised officer for the grant of a licence for using such fishing vessel for fishing”.Footnote 1666 It is not clear to Italy whether the “St. Antony” had such a licence, but even if it did, Italy contends that it was not permitted to fish beyond Indian territorial waters.Footnote 1667
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(c) Analysis of Arbitral Tribunal
947. As noted above, Article 56 relates to rights, jurisdiction and duties of the coastal State in the exclusive economic zone. It states in paragraph 1, subparagraph (a), that the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, in the exclusive economic zone. Article 56, paragraph 2, further states that in exercising its rights and performing its duties under the Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of the Convention.
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952. It follows from the available factual information that under the circumstances the Marines and the “Enrica Lexie” crew believed that the vessel was under a pirate attack and took actions, the appropriateness of which will be determined by a competent criminal court, to protect the “Enrica Lexie” against a perceived pirate attack.
953. In the view of the Arbitral Tribunal, it is established that the actions by the Marines were not directed at undermining or interfering with India's sovereign rights under Article 56 of the Convention. The Arbitral Tribunal notes, in particular, that the conduct of the Marines in the present case occurred in the context of a singular and isolated incident, which had a merely incidental effect on the ability of a fishing vessel, the “St. Antony”, to continue pursuing its fishing activities. Such circumstances do not rise to the level of interference with “sovereign rights for the purposes of exploring and exploiting, conserving and managing the natural resources” of the exclusive economic zone.
954. In any case, the sovereign rights enjoyed by India in its exclusive economic zone are not unlimited but must be balanced against the rights and duties of other States. This is confirmed by the obligation on the coastal State in Article 56, paragraph 2, of the Convention to have due regard to the rights and duties of other States and the applicability of Article 110 of the Convention.
955. With respect to the obligation to have due regard to the rights of other States, the Arbitral Tribunal observes that piracy at sea constitutes an international crime. All States have the rightFootnote 1692 and dutyFootnote 1693 to protect their vessels against piracy at sea including in the exclusive economic zone of a coastal State.Footnote 1694 In the present case, the Marines did not target the “St. Antony” as a fishing vessel, but on the suspicion that it was a pirate vessel intending to board the “Enrica Lexie”. The Arbitral Tribunal consequently concludes that the actions taken by the Marines, as Italian State officials, for the discrete purpose of protecting the “Enrica Lexie” against a perceived pirate attack, the domestic law aspects of which will be subject to determination by a competent criminal court, did not result in a violation by Italy of Article 56 of the Convention.
2. Alleged Breach by Italy of its Obligations under Article 58 (Rights and Duties of Other States in the Exclusive Economic Zone) of UNCLOS
956. The Parties further disagree as to whether Italy breached its obligation of due regard under Article 58, paragraph 3, of the Convention.
957. Article 58 of the Convention sets out the rights and duties of other States in an exclusive economic zone. Article 58, paragraph 3, provides:
Article 58
Rights and duties of other States in the exclusive economic zone
3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.
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(c) Analysis of the Arbitral Tribunal
971. India argues that the term “due regard” in Article 58, paragraph 3, of the Convention implies that “if another State's activity clashes with the coastal State's competence in respect of economic utilization of the zone, the determination must be in favour of the coastal State”. Footnote 1723 India therefore concludes that by not giving “due regard” to India's sovereign rights in the exclusive economic zone, as provided for in Article 56, paragraph 1, subparagraph (a), Italy violated its obligation under Article 58, paragraph 3, of the Convention.
972. Italy rejects these arguments and points out that the content of the “due regard” obligation depends on the extent of the regard “called for by the circumstances and by nature of those rights”.Footnote 1724 Italy submits in this regard that the “contemporaneous evidence […] indicates that those on board the Enrica Lexie apprehended a risk of collision and pirate attack and, therefore, a threat to the Enrica Lexie's safe navigation”.Footnote 1725 Consequently, the “apprehension of that risk and the Marines’ reaction to it was unrelated to India's rights under Article 56(1)(a), and the Marines’ conduct did not constitute a breach by Italy of its obligation to have due regard to India's right under that provision”.Footnote 1726
973. The notion of “due regard” is not defined by UNCLOS. The ordinary meaning of the phrase “with due regard to” is “with the proper care or concern for”.Footnote 1727 The term “regard” also signifies “[a]ttention, care, or consideration given to a thing or person; concern for, heed of”, or “[a] thing or circumstance taken into account in determining action; a consideration, a motive”.Footnote 1728 As a general rule, the ordinary meaning of “due regard” does not contemplate priority for one activity over another.
974. This absence of hierarchy is reflected in the complementarity of Article 56, paragraph 2, and Article 58, paragraph 3, of the Convention. As discussed in the Virginia Commentary, “[t]here is a mutuality in the relationship of the coastal State and other States, and articles 56 and 58 taken together constitute the essence of the regime of the exclusive economic zone”.Footnote 1729
975. The sovereign rights of the coastal State over the natural resources in the exclusive economic zone coexist with the high seas freedoms enjoyed by other States in that zone. In accordance with Article 56, paragraph 2, the coastal State is required to have “due regard” to the rights and duties of other States in the exclusive economic zone, and correspondingly, under Article 58, paragraph 3, of the Convention, other States shall have “due regard” to the rights and duties of the coastal State in its exclusive economic zone. Thus, the object and purpose of the obligation of “due regard” is to ensure balance between concurrent rights belonging to coastal and other States.
976. In Chagos Marine Protected Area Arbitration, the arbitral tribunal defined the notion of “due regard”, in the context of Article 56, paragraph 2, of the Convention, as follows:
In the Tribunal's view, the ordinary meaning of “due regard” calls for the United Kingdom to have such regard for the rights of Mauritius as is called for by the circumstances and by the nature of those rights. The Tribunal declines to find in this formulation any universal rule of conduct. The Convention does not impose a uniform obligation to avoid any impairment of Mauritius’ rights; nor does it uniformly permit the United Kingdom to proceed as it wishes, merely noting such rights. Rather, the extent of the regard required by the Convention will depend upon the nature of the rights held by Mauritius, their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the United Kingdom, and the availability of alternative approaches.Footnote 1730
977. In the view of the Arbitral Tribunal, the above notion of “due regard” as defined by the arbitral tribunal also applies in the context of Article 58, paragraph 3.
978. It follows from the Chagos Marine Protected Area Arbitration award that the extent of the “regard” required by the Convention depends, among others, upon the nature of the rights enjoyed by a State.Footnote 1731 In other words, Article 56, paragraph 2, and Article 58, paragraph 3, are structured so as to guarantee observance of the concurrent respective rights and duties of coastal and other States. The Virginia Commentary to Article 58, paragraph 3, of the Convention indicates that the Article's significance is “that it balances the rights, jurisdiction and duties of the coastal State with the rights and duties of other States in the exclusive economic zone”.Footnote 1732 Some commentators share this understanding. For instance, it has been observed that “[the] reciprocal ‘due regard’ rule does not grant priority to the rights of the coastal State or to the freedoms of other States. It is an obligation for both States to exercise their rights respecting those of the other States and to endeavour in good faith to find accommodations permitting the exercise of the rights of both”.Footnote 1733 The obligation requires, as has been noted by another commentator, that other States “refrain from activities that unreasonably interfere with the exercise of the rights of the coastal State”.Footnote 1734
979. The Arbitral Tribunal observes that Article 58, paragraph 2, of the Convention provides that Articles 88 to 115 “apply to the exclusive economic zone”. That reference extends specific rights and duties of States as regards the repression of piracy to the exclusive economic zone. The repression of piracy by States in the exclusive economic zone is thus not only sanctioned by the Convention but also, pursuant to Article 100 of the Convention as incorporated into Article 58, paragraph 2, a duty incumbent on all States.
980. It follows that, if protection from and repression of piracy comprise a right and a duty of India and Italy alike, including within India's exclusive economic zone, the conduct of the Marines on board the “Enrica Lexie” in responding to a perceived piracy threat cannot have “unreasonably interfere[d]” with, and thus have failed to show “due regard” to, India's rights as the coastal State. The domestic law aspects of the Marines’ response to the putative piracy threat will be subject to determination by a competent criminal court, and it is not for the Arbitral Tribunal to decide on this matter in the present context.
981. In light of the foregoing, the Arbitral Tribunal determines that the actions taken by the Marines, as Italian State officials, to protect the “Enrica Lexie” against an alleged pirate attack did not result in a breach of Italy's obligation of “due regard” for the sovereign rights of India over natural resources in its exclusive economic zone. Consequently, the Arbitral Tribunal concludes that Italy has not violated Article 58, paragraph 3, of the Convention.
3. Alleged Violation by Italy of India's Right and Freedom under Article 87 (Freedom of the High Seas) and Article 90 (Right of Navigation) under UNCLOS
982. The Parties also disagree as to whether Italy violated India's right and freedom of navigation in the exclusive economic zone under Articles 87 and 90 of the Convention.
983. Articles 87 and 90 of the Convention relate to the right and freedom of navigation on the high seas. Both apply equally to the exclusive economic zone by virtue of Article 58, paragraph 2, of the Convention.
984. Article 87, paragraph 1, subparagraph (a), provides:
Article 87 Freedom of the high seas
(1.) The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;
985. Article 90 provides:
Article 90 Right of navigation
Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.
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(a) Position of India
987. India submits that, on its version of the “Enrica Lexie” incident, Italy violated India's freedom and right of navigation in India's exclusive economic zone under Articles 87 and 90 of the Convention when the Marines fired shots at the “St. Antony” and caused it to change course and veer away in order to avoid further gunfire.Footnote 1735 Contrary to Italy's assertion that, “[b]oth before and after the incident, the St Antony navigated within India's exclusive economic zone without any constraint being applied by the Marines”,Footnote 1736 India submits that the Marines’ alleged shooting was a “blatant constraint” on a vessel's freedom of navigation, and that the “St. Antony” was further “constrained to proceed immediately to port” Footnote 1737 because of the “resulting deaths on board”.Footnote 1738
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(b) Position of Italy
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1002. First, Italy submits that “India did not and does not enjoy the right or the freedom of navigation in respect of the St Antony because the vessel did not and was not entitled to fly its flag”.Footnote 1776
1003. Italy submits that the counter-claim must fail because both Articles 87 and 90 depend on the “St Antony having been an Indian-flagged vessel, which it was not”. Footnote 1777 Italy contends that because “the freedom and right of navigation belongs to the State, rather than the vessel, it is through the flying of the flag of a State, and the entitlement to do so under the law of that State, that the freedoms and rights of the flag State are exercised by a private vessel”.Footnote 1778 According to Italy, “the St Antony was neither entitled to fly the Indian flag nor actually flying the Indian flag”.Footnote 1779
1003. Italy submits that the counter-claim must fail because both Articles 87 and 90 depend on the “St Antony having been an Indian-flagged vessel, which it was not”. Footnote 1777 Italy contends that because “the freedom and right of navigation belongs to the State, rather than the vessel, it is through the flying of the flag of a State, and the entitlement to do so under the law of that State, that the freedoms and rights of the flag State are exercised by a private vessel”.Footnote 1778 According to Italy, “the St Antony was neither entitled to fly the Indian flag nor actually flying the Indian flag”.Footnote 1779
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1005. In Italy's view, “[t]here is an important difference between a vessel having the nationality of a State, and a vessel being entitled to fly the flag of a State”.Footnote 1782 Italy submits that Article 91 of the ConventionFootnote 1783 clearly “distinguishes between the conditions for the grant of nationality to a vessel, for the registration of a ship, and for the right to fly its flag”. In Italy's view, “[f]or the purposes of Article 87(1)(a) and Article 90 of UNCLOS, only the entitlement to and the display of the flag are relevant”.Footnote 1784
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(c) Analysis of the Arbitral Tribunal
1017. India claims that Italy, through its conduct, has breached India's freedom and right of navigation in the exclusive economic zone, pursuant to Article 87, paragraph 1, subparagraph (a) and Article 90, of the Convention, respectively. India argues that this breach occurred when the Marines fired shots at the “St. Antony” and caused it to change course and veer away in order to avoid further gunfire.Footnote 1816 Italy submits that it has not breached India's freedom and right of navigation “either generally or with respect to the St. Antony” as the incident in no way involved any attempt by Italy to interfere with India's freedom of navigation or to prevent India from sailing any ship flying the Indian flag.Footnote 1817
1018. According to Italy, “India did not and does not enjoy the right or the freedom of navigation in respect of the St Antony because the vessel did not and was not entitled to fly its flag”.Footnote 1818 Italy argues that Articles 87 and 90 “confer[] rights on States which are ‘enjoyed through them by ships to which the right to fly their flag has been accorded’.”Footnote 1819 On the contrary, according to India,
there was no obligation for a small-size fishing craft to fly the Indian flag. It was still an Indian vessel. When the St Antony was fired at, it had to veer away sharply to avoid further gunfire, and then return to port because of the resulting deaths on board. In those circumstances, it is evident that India's right of navigation under Article 90 was both engaged and violated.Footnote 1820
1019. Italy also argues that, while India has not substantiated its claim that the “St. Antony” was an Indian-flagged vessel, in any case, India has not fulfilled its obligations as a flag State under Article 94, paragraph 1; paragraph 3, subparagraphs (b) and (c); and paragraph 4, subparagraph (b), of the Convention. According to Italy, freedom of navigation does not include freedom to navigate in breach of these standards.Footnote 1821 India argues that there is no evidence that India violated Article 94 and that even if it did, this would not entitle Italy to interfere with India's freedom of navigation.Footnote 1822
…
i. The Status of the “St. Antony”
…
1024. In the present case, India has submitted to the Arbitral Tribunal its national law containing the relevant conditions for grant of its nationality to ships.Footnote 1830 According to India, this law supports its assertion that the “St. Antony” was an Indian vessel. Specifically, India points to Section 2, paragraph (e), of the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981, and asserts that according to this provision, the “St. Antony” was at all material times an Indian vessel.Footnote 1831 According to Section 2, paragraph (e):
In this Act, unless the context otherwise requires,
[…]
(e) “Indian vessel” means:-
[…]
(II) a vessel:-
(i) which is owned wholly by persons to each of whom any of the following descriptions applies:
(1) a citizen of India;
[…]; and
(ii) which is registered under the Merchant Shipping Act, 1958, or under any other Central Act or any Provincial or State Act.Footnote 1832
1025. The “St. Antony” was a fishing vessel owned by an Indian nationalFootnote 1833 and registered under the Tamil Nadu Marine Fishing Regulation Act, 1983,Footnote 1834 and the Marine Products Export Development Authority Act, 1972.Footnote 1835 In view of this, the Arbitral Tribunal is satisfied that the “St. Antony” was an Indian vessel.
ii. Consequences of Exemption from Registration under the Indian Merchant Shipping Merchant Act, 1958
1026. India submits that the “St. Antony”, as a small fishing vessel, was exempt from registration under the Indian Merchant Shipping Act, 1958,Footnote 1836 and that pursuant to Article 94, paragraph 2, subparagraph (a), of the Convention, “it was not […] obligatory for the St Antony to be registered given its small size”.Footnote 1837
1027. Article 94, paragraph 2, subparagraph (a), of the Convention provides as follows:
Article 94
Duties of the flag State
2. In particular every State shall:
(a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size;
…
1029. In the view of the Arbitral Tribunal, the test under the Convention for establishing a jurisdictional link between a vessel and a State is whether a vessel possesses the nationality of that State, as opposed to whether or not it is found in a public register or flies a flag. A flag may thus be regarded as “visual evidence” or “a symbol” of nationality, but is not determinative for that vessel's nationality.Footnote 1840
iii. Exercise of Freedom of the High Seas by Small Vessels not Registered under the Indian Merchant Shipping Act, 1958
…1032. Article 94, paragraph 2, of the Convention requires States, in principle, to “maintain a register of ships containing the names and particulars of ships flying its flag”. That requirement in turn is conditioned by the phrase “except those which are excluded from generally accepted international regulations on account of their small size”. Article 94, paragraph 2, thus implies that vessels that “are excluded from generally accepted international regulations on account of their small size” by a State may nonetheless qualify as “ships flying its flag”.
1033. It cannot be inferred from the exemption in Article 94, paragraph 2, of small vessels from the generally-prevailing registration requirement that the State of nationality would, in relation to such small vessels, be deprived of the fundamental rights to freedom of navigation set out in Article 87. Rather, the entitlement to enjoy freedom of navigation is “intimately linked to the question of the granting of nationality to ships”, not to the act of registration.Footnote 1843 As already noted above, “[t]he Convention, simply, does not require all ocean-going vessels to be registered […] (even where such vessels may be capable of voyages beyond coastal waters)”.Footnote 1844
1034. Accordingly, it follows that States may, exceptionally, exercise their freedoms under Article 87 of the Convention also through small non-registered vessels, although the Convention tends to discourage non-registration. India, as the flag State of the “St. Antony”, was entitled to the freedoms and rights attendant to this status under the Convention.
1035. With regard to Italy's allegation that India has failed in its flag State duties under Article 94,Footnote 1845 the Arbitral Tribunal considers that an alleged failure by India to fulfil its duties under Article 94 would not negate India's right and freedom of navigation under Articles 87 and 90. The Arbitral Tribunal thus need not consider Italy's allegation any further.
iv. Examination of Italy's Conduct vis-à-vis the “St. Antony”
…
1039. When the “St. Antony” was at a distance of approximately 500 metres from the “Enrica Lexie”, Sergeant Latorre and Sergeant Girone each fired four rounds of a mix of tracer and ordinary bullets.Footnote 1847 According to the testimony of Sergeant Latorre, the purpose of these shots was to “deter the craft from continuing to keep its course heading toward the Enrica LEXIE”.Footnote 1848 Sergeant Latorre noted in his Action Report that this “first burst of warning shots” did not succeed in “persuading the craft to drift away”.Footnote 1849 When the “St. Antony” was at a distance of 300 metres from the “Enrica Lexie”, Sergeant Latorre fired four rounds of a mix of tracer and ordinary bullets.Footnote 1850 Sergeant Latorre noted further in his testimony that “the second burst of warning shots did not achieve the desired effect, the craft ignored the warning shots and kept its course, heading toward the MV at constant speed”.Footnote 1851 When it was at a distance of approximately 80-100 metres from the “Enrica Lexie”, Sergeant Latorre and Sergeant Girone, each fired four further rounds of a mix of tracer and ordinary bullets.Footnote 1852 Following this third burst of shots, the “St. Antony”, after being approximately 30 metres away from the “Enrica Lexie”, changed its course away from the “Enrica Lexie”.Footnote 1853
1040. Captain Fredy testified that he took over the steering,Footnote 1854 and “abruptly helmed the boat away”.Footnote 1855 He steered the “St. Antony” at high speed, and only when he “realized [the bullets] were not hitting the boat” but rather “falling into water” did he slow the boat to “find out what had happened to the two people who were shot”.Footnote 1856 After the incident, the “St. Antony” headed “towards the seashore”.Footnote 1857
1041. In the Arbitral Tribunal's view, the evidence on the record is clear that it was the act of shooting at the “St. Antony” by the Marines stationed on the “Enrica Lexie” that caused the “St. Antony” to change direction and ultimately head back to shore. The “St. Antony” was, both during and after the incident, prevented from navigating its intended course.
1042. The shooting at the “St. Antony” amounted to physical interference with the navigation of the “St. Antony”. As observed by ITLOS in M/V “Norstar”, “[i]t goes without saying that physical or material interference with navigation of foreign ships on the high seas violates the freedom of navigation”.Footnote 1858
1043. Accordingly, the Arbitral Tribunal concludes that by interfering with the navigation of the “St. Antony”, Italy acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.
4. Alleged Infringement by Italy of India's Rights under Article 88 (Reservation of the High Seas for Peaceful Purposes) of UNCLOS
1044. Finally, the Parties disagree as to whether Italy breached Article 88 of the Convention, which applies to India's exclusive economic zone by virtue of Article 58, paragraph 2.
1045. Article 88 of the Convention reads as follows:
Article 88
Reservation of the high seas for peaceful purposes
The high seas shall be reserved for peaceful purposes.
…
(c) Analysis of the Arbitral Tribunal
1065. India asserts that Italy infringed its rights under Article 88 because “the use of force by another State is inconsistent with India's right” under that Article “to have its EEZ reserved for peaceful purposes”.Footnote 1915 India argues that Article 88 should be read together with Article 301 of the Convention, which prohibits the threat or use of force or any other action inconsistent with the Charter of the United Nations.Footnote 1916
1066. India submits that the Marines were not under a reasonable apprehension of a security threat, possible collision, or hostile pirate boardingFootnote 1917 and therefore the use of force by the Marines “was unwarranted and excessive”,Footnote 1918 “caus[ing] the deaths of two Indian fishermen, endanger[ing] the safe navigation of the fishing boat, and compromis[ing] the lives of the other persons on board the St Antony”.Footnote 1919
1067. Italy argues that Article 88 of the Convention is not engaged in this case “because Italy did not have any purpose that was not peaceful in India's exclusive economic zone”.Footnote 1920 Italy contends that the Convention “does not prohibit the use of force in certain circumstances within the limits prescribed by international law”.Footnote 1921
1068. According to Italy, deployment of VPDs on Italian merchant vessels, including the “Enrica Lexie”, was not inconsistent with the prohibition on the use of force in Article 2, paragraph 4, of the Charter of the United Nations. Italy makes reference in this regard to Resolution 2077 in which the United Nations Security Council “[c]ommend[ed] the efforts by flag States for taking appropriate measures to permit vessels under their flag transiting the High Risk Area to embark vessel protection detachment and privately contracted armed security personnel”.Footnote 1922
1069. The Arbitral Tribunal observes that, as pointed out in the Virginia Commentary, Article 88 sets out the general principle that the high seas are to be reserved for peaceful purposes and that this principle is also confirmed in Article 301 concerning peaceful uses of the seas.Footnote 1923 The latter calls on all States to:
refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.
1070. It is further noted in the Virginia Commentary that there is nothing on the record to connect Article 301 with Article 88. At the same time, Article 301 can be used as an interpretive guide to Article 88.Footnote 1924
1071. The Arbitral Tribunal observes that Article 301 of the Convention, which is drawn from Article 2, paragraph 4, of the Charter of the United Nations, is applicable to all activities dealt with by the Convention and would not seem to add anything to the obligations of States that existed prior to the conclusion of the Convention.
1072. Article 2, paragraph 4, of the Charter of the United Nations provides:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
1073. Thus, under the Charter of the United Nations, the use of force is not completely prohibited if it is consistent with the Charter and with other rules of international law. This means that pursuant to Article 301 of the Convention, the use of force is not completely excluded on the high seas.
1074. It clearly follows from the articles of the Convention related to the fight against piracy that all States can take the necessary measures, including enforcement measures consistent with the Convention and the Charter of the United Nations, to protect their vessels against pirate attacks. Such measures cannot be viewed as a violation of Article 88 of the Convention or as an infringement on the rights of the coastal State in its exclusive economic zone. This is confirmed by Resolution 2077, which is cited by both Parties.
1075. By that Resolution, the Security Council of the United Nations reaffirmed that international law, as reflected in UNCLOS, sets out the legal framework applicable to combating piracy and armed robbery at sea as well as other ocean activities, and:
commend[ed] the efforts of flag States for taking appropriate measures to permit vessels sailing under their flag transiting the High Risk Area to embark vessel protection detachments and privately contracted armed security personnel and encouraging States to regulate such activities in accordance with applicable international law and permit charters to favour arrangements that make use of such measures.Footnote 1925
1076. It is an established fact that the Italian Marines were on board the “Enrica Lexie” to protect it against potential pirate attacks. As has also been noted in the present Award, the Arbitral Tribunal is of the view, on the basis of information available, that during the incident of 15 February 2012, the Marines acted under the apprehension that the “Enrica Lexie” was under a pirate attack and therefore took actions, the domestic law aspects of which are to be determined by a competent criminal court, to protect the “Enrica Lexie” against a perceived pirate attack.
1077. In light of the foregoing analysis, the Arbitral Tribunal concludes that Italy did not breach Article 88 of the Convention.
B. Remedies
…
3. Analysis of the Arbitral Tribunal
1081. Having found that, by interfering with the navigation of the “St. Antony”, Italy acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90, of the Convention, the Arbitral Tribunal will examine which consequences arise from Italy's unlawful conduct.
1082. The Arbitral Tribunal recalls that, under customary international law as codified in the ILC Draft Articles on State Responsibility, “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act”, which may include “any damage, whether material or moral, caused by the internationally wrongful act”.Footnote 1929 Specifically, full reparation shall take the form of restitution, compensation and satisfaction, either singly or in combination.Footnote 1930
…
1085. The injury suffered by India as a result of Italy's breach, through the conduct of the Marines, of India's freedom of navigation under the Convention is twofold.
1086. First, India was subject to an infringement of its freedom of navigation. Such injury is a consequence of the breach of the Convention by Italy. While no specific material damage is associated with that injury, the Arbitral Tribunal recalls the principle expressed in the award of the arbitral tribunal in the “Rainbow Warrior” Affair that “[u]nlawful action against non-material interests, such as acts affecting the honor, dignity or prestige of a State, entitle the victim State to receive adequate reparation, even if those acts have not resulted in a pecuniary or material loss for the claimant State”.Footnote 1933
1087. The injury in question being of such a nature that it cannot be made good by restitution or compensation, reparation can only take the form of satisfaction. The Arbitral Tribunal considers that a finding in the present Award that Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention constitutes adequate satisfaction for India.Footnote 1934 The Arbitral Tribunal recalls in this regard that, in the Corfu Channel case, the ICJ regarded a declaration by the Court “that the action of the British Navy constituted a violation of Albanian sovereignty” to be “in itself appropriate satisfaction”.Footnote 1935
1088. Second, as noted in paragraph 1042 of the Award, the shooting at the “St. Antony” amounted to physical interference with the freedom of navigation of the “St. Antony” and constituted a breach of Article 87, paragraph 1, subparagraph (a), and Article 90. Based on the limited evidence available to the Arbitral Tribunal, as a consequence of such breach, crew members of the “St. Antony” suffered loss of life, physical harm, material damage to their property (including to the “St. Antony” itself), and moral harm. India is accordingly entitled to payment of compensation in respect of such damage, which by its nature cannot be made good through restitution.Footnote 1936
1089. Consistent with the Parties’ positions, the Parties are invited to consult with each other with a view to reaching agreement on the amount of compensation due to India.
1090. The Arbitral Tribunal shall retain jurisdiction, should either Party or both Parties wish to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India, in which event the Arbitral Tribunal would fix a timetable for further proceedings. Should no such application be received within one year after the date of the present Award, the proceedings shall be closed.
…
VIII. DISPOSITIF
1094. For the reasons set out in this Award, the Arbitral Tribunal
A. In relation to jurisdiction and admissibility
1. FINDS, by four votes to one, in respect of Italy's Submission (1) and India's Submission (1), that in the present Arbitration there is a dispute between the Parties as to which State is entitled to exercise jurisdiction over the incident of 15 February 2012 involving the “Enrica Lexie” and the “St. Antony”, and that the dispute concerns the interpretation or application of the Convention;
IN FAVOUR: President Golitsyn; Arbitrators Paik, Francioni, Pemmaraju Sreenivasa Rao
AGAINST: Arbitrator Robinson
2. FINDS, by four votes to one, that the Arbitral Tribunal has jurisdiction over the dispute, subject to its decision on the specific objections to its jurisdiction raised by India in its Submission (1.a);
IN FAVOUR: President Golitsyn; Arbitrators Paik, Francioni, Pemmaraju Sreenivasa Rao
AGAINST: Arbitrator Robinson
3. FINDS, unanimously, that India's counter-claims are admissible;
4. FINDS, by three votes to two, in respect of Italy's Submission (2)(f), that Article 2, paragraph 3, Article 56, paragraph 2, and Article 58, paragraph 2, of the Convention are not pertinent and applicable in the present case;
IN FAVOUR: President Golitsyn; Arbitrators Paik, Francioni
AGAINST: Arbitrators Robinson, Pemmaraju Sreenivasa Rao
5. FINDS, by three votes to two, in respect of Italy's Submission (2)(f) and India's Submission (1.a), that it has jurisdiction to deal with the question of the immunity of the Marines;
IN FAVOUR: President Golitsyn; Arbitrators Paik, Francioni
AGAINST: Arbitrators Robinson, Pemmaraju Sreenivasa Rao
6. FINDS, unanimously, in respect of India's submission (1.a), that there is no need to address the question of the compatibility with UNCLOS of India's 1976 Maritime Zone Act and its 1981 Notification;
B. In relation to the merits of the dispute between the Parties
1. FINDS, unanimously, in respect of Italy's Submission (2)(b)-(e) and (g),
a. that India has not acted in breach of Article 87, paragraph 1, subparagraph (a), of the Convention;
b. that India has not violated Article 92, paragraph 1, of the Convention;
c. that Article 97, paragraphs 1 and 3, of the Convention are not applicable in the present case;
d. that India has not violated Article 100 of the Convention and that therefore Article 300 cannot be invoked in the present case;
2. DECIDES, by three votes to two, in respect of Italy's Submission (2)(f), that the Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines;
IN FAVOUR: President Golitsyn; Arbitrators Paik, Francioni
AGAINST: Arbitrators Robinson, Pemmaraju Sreenivasa Rao
3. DECIDES, by three votes to two, in respect of Italy's Submission (3)(a) and (c), taking note of the commitment expressed by Italy during the proceedings to resume its criminal investigation into the events of 15 February 2012, that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required;
IN FAVOUR: President Golitsyn; Arbitrators Paik, Francioni
AGAINST: Arbitrators Robinson, Pemmaraju Sreenivasa Rao
4. FINDS, in respect of India's Submissions (4), (5), and (7),
a. a. by three votes to two, that Italy has not violated India's sovereign rights under Article 56 of the Convention;
IN FAVOUR: President Golitsyn; Arbitrators Paik, Francioni AGAINST: Arbitrators Robinson, Pemmaraju Sreenivasa Rao
b. by three votes to two, that Italy has not violated Article 58, paragraph 3, of the Convention;
IN FAVOUR: President Golitsyn; Arbitrators Paik, Francioni AGAINST: Arbitrators Robinson, Pemmaraju Sreenivasa Rao
c. unanimously, that Italy has not infringed on India's rights under Article 88 of the Convention;
5. FINDS, unanimously, in respect of India's Submission (6), that by interfering with the navigation of the “St. Antony” Italy has acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention;
6. DECIDES, unanimously, in respect of India's Submission (8),
a. a. that a finding in the present Award that Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention constitutes adequate satisfaction for the injury to India's non-material interests;
b. b. that as a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention, 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 cannot be made good through restitution;
c. c. that the Parties are invited to consult with each other with a view to reaching agreement on the amount of compensation due to India referred to in paragraph 6(b) above;
d. d. that the Arbitral Tribunal shall retain jurisdiction should either Party or both Parties wish to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India, in which event 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;
C. In relation to the costs of these proceedings, DECIDES that each Party shall bear its own costs.
* * *
Done at The Hague, the Netherlands, this twenty-first day of May, two thousand and twenty:
For the Arbitral Tribunal:
Arbitrators Robinson and Pemmaraju Sreenivasa Rao append a joint dissenting opinion to the Award. Arbitrator Robinson appends a dissenting opinion to the Award. Arbitrator Pemmaraju Sreenivasa Rao appends a concurring and dissenting opinion to the Award.
The present copy of the Award contains corrections to page xi, paragraph 18, paragraph 256, paragraph 591, and paragraph 719 made by the Arbitral Tribunal pursuant to Article 19 of the Rules of Procedure.
Dr. Sreenivasa Rao Pemmaraju (Dr. P.S. Rao)
1. As the Dispositif indicates, I am in substantial agreement with nearly all aspects of the Award of the Arbitral Tribunal, with the notable exception of its findings concerning the immunity of the Marines, on which I must respectfully dissent. I shall elaborate on my reasons for dissent below. In order to put my views into perspective, I will briefly identify the salient facts of the case and recall in brief the principal arguments presented by the Parties before the Indian courts and the present Arbitral Tribunal.
I. FACTUAL BACKGROUND TO THE PROSECUTION OF THE ITALIAN MARINES IN INDIA
2. The present case concerns an incident of firing that occurred on 15 February 2012 between 16:00-16:30 IST in the maritime area off the coast of India (Kerala state) at a distance of 20.5 nautical miles. It is admitted that the firing was done by two marines of the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, positioned on the “Enrica Lexie”, an oil tanker flying the Italian flag, to protect the vessel from what they believed to be an impending piracy or armed robbery attack from a small Indian boat, the “St. Antony”, which they perceived to be on a steady collision course. At the time, the “Enrica Lexie” was transiting through a maritime area that was within the range of a “High Risk Area” for piracy designated by the International Maritime Organization. On the particular day of the incident, the seas were calm, and a lot of fishing activity was undertaken, with no reports or warnings about any piracy/armed attacks.
3. Witness statements were recorded in India, Italy, and at the hearing held by the Arbitral Tribunal in July 2019. According to the statements made by Captain Vitelli, who recorded the events in the log book of the “Enrica Lexie”, Captain Noviello, whose role was essentially to assist Captain Vitelli and Sergeant Girone, one of the Marines involved in the firing incident, first observed a small boat at a distance of 2.8 nautical miles coming towards the “Enrica Lexie”. The “St. Antony” did not change its course, despite physical warnings given to it when it was at distance of 800 metres. This resulted in the firing of “warnings shots”, first at a distance of 500 metres, later at 300 metres, and finally at 100 metres to avert collision and/or a pirate attack. The Indian boat, in the event, managed to move away after coming as close as 80 to 100 metres without incident, allowing the “Enrica Lexie” to resume its normal course.
4. While all necessary precautions were taken on board the “Enrica Lexie” as required in such cases, the button on the VDR was not pressed,Footnote 1 and, in the event, no data was preserved, even though it was a “reportable” incident.Footnote 2 The statements on the record do not provide a clear account of the number of persons whom those on board the “Enrica Lexie” saw on the “St. Antony”; whether they were armed; and whether the boat was engaged in manoeuvres typical of a pirate attack and had any equipment or implements commonly used in such an attack. It was also noted that the vessel could not communicate with the boat as the latter was not responding to attempts to engage in radio communication. Under the circumstances, the statements made by various members of the crew and the Captain of the “Enrica Lexie” concerning the perceived threat of piracy and action taken in response, including warnings given and their target, as well as the claim that the small fishing boat was on a collision course remain unverified and unverifiable, leaving much to conjecture and circumstantial evidence on this score.
5. On India's case, the “St. Antony” was a small fishing boat with eleven men on board, which was passing by, after a night-long fishing session, from one area to another fishing area as part of an eight-day fishing expedition. According to Captain Fredy,Footnote 3 the man in charge of the fishing boat, all those on board the “St. Antony” were asleep in the afternoon at the time of the incident, when he was suddenly awoken by the sound of firing of shots, only to see that Jelastine, who was at the helm of the boat, was bleeding and motionless. Soon thereafter he saw Pinku, at the bow, also succumbing to death due to a bullet wound. Captain Fredy said that he took control of the boat and managed to move it away when it was at a distance of 100 to 200 metres from the “Enrica Lexie” to avoid any further damage to his men and the boat. He also stated that bullets fell “like torrential rain” for nearly “two minutes”, without any “provocation”, sounding “no alarm”, making “no mike announcement” or “a warning shot fired”. He reported the death of two of his men as a result of the incident, which was promptly conveyed to the local police authorities at Neendakara. According to Captain Fredy, the incident occurred at about 31 nautical miles north-west from Neendakara. He reached Neendakara at about 11 p.m. with the remaining men on the boat, including the two dead.
6. The Indian MRCC Mumbai, and two Indian Coast Guard vessels, the “Lakshmibai” and “Samar”, were duly alerted and swung into action to trace the vessel involved in the incident. Once they identified the “Enrica Lexie” as the vessel involved in the incident, they requested it change its course and directed it to enter Indian territorial waters. The Captain of the “Enrica Lexie” confirmed that he asked for written instructions to change the course of the vessel and received such instructions by e-mail from the MRCC Mumbai. India and Italy disagree as to whether the written message was received before or after the “Enrica Lexie” had already decided to change its course. Once it was in Indian territorial waters, investigations were conducted by the police authorities of Kerala. Following the same, the relevant authorities decided to arrest the two Marines, detain the “Enrica Lexie”, and proceed to take necessary action in accordance with Indian law against the two Marines.
II. ITALIAN OBJECTIONS TO PROSECUTION OF THE MARINES IN INDIA
7. Italy opposed India's exercise of jurisdiction, first by filing a writ petition before the High Court of Kerala and later before the Supreme Court of India.
8. Italy opposed the exercise of jurisdiction by India before the Kerala High Court and the Supreme Court of India on several grounds. In brief they could be summarised as follows:
(i) The incident was the result of warning shots fired by the Marines at an approaching boat to prevent or avert an attempted pirate attack on the “Enrica Lexie”.
(ii) As this incident took place in a maritime area beyond the 12 nautical mile territorial waters of India (and not being an incident attracting the provisions and the authority of India with respect to the contiguous zone, which extends up to 24 nautical miles), Italy contended that it is, at best, an incident of navigation in terms of Article 97, paragraph 1, of the Convention. As such, Italy argued that (a) it has exclusive jurisdiction to institute penal or disciplinary proceedings against the master or any other person in the service of the ship before its judicial or administrative authorities; and (b) in pursuance of Article 97, paragraph 3, of the Convention, no State other than Italy could order arrest or detention of the Italian vessel “even as measure of investigation”.
(iii) Accordingly, Italy submitted that any exercise of jurisdiction by India over the incident, on the basis of the 1976 Indian Maritime Zones Act (and the Gazette Notification of 27 August 1981 issued thereunder) and/or other domestic Indian laws (the 1860 Indian Penal Code, the 1973 Criminal Procedure Code and the SUA) is contrary to India's obligations as a State party to the Convention.
(iv) The “Enrica Lexie” was called to Indian territorial waters under a false premise and the arrest of the Marines amounted to abduction.
(v) Italy also submitted, “alternatively” and “without prejudice” to the submissions already made, that India cannot exercise its jurisdiction to prosecute the Marines as they are Italian officials, being part of the Naval judicial police, and were engaged in the discharge of their official functions at the time of the incident. Thus, Italy asserted that the Marines were entitled to immunity under general international law.Footnote 4
9. Before the present Arbitral Tribunal, Italy elaborated on certain of the grounds, noted above, as follows:
(i) Italy also contended that by “directing and inducing the Enrica Lexie to change course and proceed into India's territorial sea through a ruse, as well as by interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy's freedom of navigation, in breach of UNCLOS Article 87(1) (a), and Italy's exclusive jurisdiction over the Enrica Lexie, in breach of Article 92 of UNCLOS”.Footnote 5
(ii) In addition, by “directing and inducing the Enrica Lexie to change course and proceed into India's territorial sea through a ruse, India abused its right to seek Italy's cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS”.Footnote 6
III. LACK OF CONCLUSIVE EVIDENCE CONCERNING THE CASE OF PIRACY
10. The investigations conducted by IndiaFootnote 7 and ItalyFootnote 8 separately did not reveal any conclusive evidence concerning the circumstances under which firing by the Marines was called for. Having regard to the statements of those on board the “Enrica Lexie”, Italy was unable to produce credible evidence to substantiate its case that the Marines were responding to a possible threat of piracy/armed robbery.
11. On the other hand, statements made by Captain Fredy were neither consistent nor helpful in establishing facts of the incident from his side. As most of these facts, allegations, or claims made by the Parties deal with the cause of death of the two Indian fishermen, which is of concern only to the national court of proper jurisdiction, subject to applicable rules of evidence, it is not necessary for this Opinion to dwell upon them.Footnote 9
12. Insofar as the reasons for the “Enrica Lexie”’s change of course, following the request from the MRCC, Mumbai, are concerned, however, the oral testimony given by the Tribunal Witnesses at the Hearing provided considerable clarification, as is set out in detail in Part III, Section C of the Award.
IV. LEGAL PROCEEDINGS BEFORE THE KERALA HIGH COURT AND THE INDIAN SUPREME COURT
13. It may be recalled that the Kerala Police filed a charge sheet on 18 May 2012 under Sections 302, 307, and 427, read with Section 34 of the Indian Penal Code and Section 3 of the SUA.Footnote 10 While the Kerala High Court upheld India's jurisdiction over the Marines and rejected the Italian plea of immunity, the Supreme Court in its order of 18 January 2013 did not deal with the matter of immunity, instead, it upheld India's jurisdiction and directed the Union of India to establish a Special Court to dispose of the case as expeditiously as possible. It also directed the prospective Special Court to examine Italy's objections to its jurisdiction, paying special attention to the provisions of the Convention concerning piracy. Immediately after this judgment, India took steps to establish the Special Court, which was constituted on 15 April 2013. The NIA was put in charge of conducting the necessary investigations. However, upon a petition filed by the Marines before the Supreme Court in January 2014, the NIA was blocked from filing charges before the Special Court. Italy also requested India to amend the charge sheet against the Marines by dropping any reference to the SUA, which India agreed to do.Footnote 11
14. Italy questioned the validity of the Gazette Notification of 1981 issued under the 1976 Indian Maritime Zones Act, which extended Indian laws, in particular its criminal laws, to the exclusive economic zone.Footnote 12 India, on the other hand, defended its right to issue the notification given its sovereign rights and exclusive jurisdiction over the living and non-living resources and the need to protect the oil platforms in its continental shelf, asserting that in enforcing Indian laws, due account would be taken of the facts of each case.Footnote 13 The Supreme Court was in the event not persuaded to order the termination of the criminal proceedings against the Marines. Ultimately, India asserted its jurisdiction over the incident and the Marines on the basis of passive personality or objective territoriality principles of international law.Footnote 14 Italy, on the other hand, opposed Indian jurisdiction on this score, claiming that it amounted to an exercise of extra-territorial jurisdiction in contravention of Indian law.Footnote 15
V. THE PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL
15. Given the priority it attached to the immunity of the Marines from the jurisdiction of India, and after failing to obtain relief on this score from the Indian judicial process with which it was engaged for over three years, Italy decided in June 2015 to submit the dispute to arbitration under Annex VII of the Convention, invoking Article 286; Article 287, paragraphs 1 and 5; and Article 288, paragraph 1. According to Italy, the Arbitral Tribunal so constituted has jurisdiction, among other matters, to adjudge and declare (i) that “India violated and continues to violate Italy's exclusive right to institute penal and disciplinary proceedings against the Marines, in breach of Article 97(1) of UNCLOS”;Footnote 16 (ii) by “ordering the detention of the Enrica Lexie between February and May 2012, and investigating those on board, India violated the prohibition against the arrest or detention of a ship by a State other than the flag State in breach of Article 97(3) of UNCLOS”;Footnote 17 and (iii) by “asserting and continuing to exercise its criminal jurisdiction” over the Marines, “India is in violation of its obligation to respect the immunity of the Marines as Italian State officials exercising official functions in breach of Articles 2(3), 56(2), 58(2) and 100 of UNCLOS”.Footnote 18
16. India, on the other hand, requested the Arbitral Tribunal, in its final submissions, among others, “to adjudge and declare that it has no jurisdiction with respect to the case submitted to it by Italy”. It is India's argument that it is exercising its jurisdiction in respect of the death of two of its fishermen who were “legitimately exercising their right to fish in India's exclusive economic zone”.Footnote 19 India also takes the view that the prosecution of the Italian Marines is based on the passive personality and objective territoriality principles, well recognized in State practice, rather than on any provisions of the Convention, and that it had started exercising such jurisdiction against the Marines only after they were found in the territory of India.
A. Existence of a Dispute Within the Meaning of Article 288, Paragraph 1, of Unclos Concerning Italy's Claim of Exclusive Jurisdiction
17. The Award deals extensively with the arguments of the Parties on the basis of evidence placed on the record as well as gathered at the time of oral hearings in July 2019.Footnote 20 The Parties disagreed as to the relevance and interpretation or application of a number of Articles of the Convention. It has been the consistent view of India that the dispute between the Parties is one that is related to the exercise of jurisdiction by India based on its law and the same does not fall within the scope of the Convention. It is important to note, however, that India, in its Counter-Memorial, not only defended its authority to prosecute the Italian Marines under Indian law but also justified its actions in directing the “Enrica Lexie” to move towards the port of Kochi, noting that in so doing, it acted in conformity with the Convention and did not violate Articles 87.Footnote 21 India went further and made counter-claims alleging that Italy breached its obligations and violated India's rights under the Convention.Footnote 22
18. On the existence of dispute within the meaning of Article 288, paragraph 1, of the Convention, the Arbitral Tribunal held that there is a dispute “which is appropriately characterized as a disagreement as to which State is entitled to exercise its jurisdiction over the incident of 15 February 2012 involving the ‘Enrica Lexie’ and the ‘St. Antony’ which raises questions under several provisions of the Convention, including Articles 56, 58, 59, 87, 92, 97, 100 and 300 on the interpretation or application of which the Parties have different views”.Footnote 23 However, with respect to the claim of Italy on the immunity of the Marines, the Arbitral Tribunal noted that “the dispute may raise, but is not limited to, the question of immunity of the Marines”.Footnote 24
19. The Arbitral Tribunal, after an extensive examination of the relevant articles of the Convention, decided that both India and Italy, in their capacity as flag States, and in accordance with Article 92 of the Convention, are entitled to exercise jurisdiction concurrently over the incident. It based this conclusion on the fact that the Marines on board the “Enrica Lexie” fired shots that killed two fishermen on the Indian boat “St. Antony”. In the process, it rejected the Italian argument that India used “ruse and force” to direct the “Enrica Lexie” to change its onward course to enter its territorial sea, and that India is entitled to investigate the death of two of its fishermen and seek cooperation in that respect from the Italian captain and others on the “Enrica Lexie”. The Arbitral Tribunal held that such actions do not amount to interference with Italy's right to exercise its freedom of navigation under Article 87, paragraph 1. The Arbitral Tribunal also rejected the Italian claim that it enjoyed exclusive jurisdiction over the firing incident under Article 97, paragraphs 1 and 3, as, on the facts of the case, it did not involve collision, and the incident could not be properly treated as an incident of navigation.
20. I agree with these findings of the Arbitral Tribunal.
21. With respect to Italy's claim that the 1976 Maritime Zones Act and the 1981 Notification issued thereunder are not compatible with the provisions of the Convention, the Arbitral Tribunal foundFootnote 25 that: (1) it is established that no enforcement action was taken by the Indian authorities against the “Enrica Lexie” or the Marines in the Indian exclusive economic or contiguous zones; (2) India has not reiterated the argument before the Arbitral Tribunal that its conduct was based on the 1976 Maritime Zones Act and 1981 Notification, even if the pleadings of the Union of India before the Indian courts during the initial course of the internal proceedings relied on them to justify its conduct; and (3) India instead relied on the territoriality and passive personality principles under international law as justification for its conduct. For its claim that the Indian legislation is incompatible, Italy referred, from among the Articles of the Convention, to only Article 87, paragraph 1, subparagraph (a), concerning freedom of navigation on the high seas in support of its submission that India is thereby in breach of the Convention.
22. In addition, the Arbitral Tribunal noted that in its examination of the submission of Italy that India breached its right to freedom of navigation, in Part V, Section B.1(b), of the Award, it found that it is not based on the alleged extension of the Indian legislation to the exclusive economic zone. Accordingly, the Arbitral Tribunal concludes that, even if questions may arise as to the compatibility of that legislation with the Convention, it sees no need to address that issue in the context of the present dispute.Footnote 26
23. I voted in favour of the operative paragraph A.6 of the Dispositif, not only for the reasons thus noted by the Award, concluding that there is no need to deal with the issue in the present context of the dispute as defined under paragraph A.1 of the Dispositif, but also because the Arbitral Tribunal is not competent, in my opinion, to deal with the matter in the first instance. It is well-established that India did not invoke the same as a justification for its conduct in the exclusive economic or contiguous zones or for framing the charges under its national criminal law for the purpose of prosecution before its courts. It is thus not only a matter which is moot, but also one that does not arise under any of the provisions considered by the Arbitral Tribunal in deciding on the dispute, as material for its jurisdiction, that is, which State has jurisdiction over the incident in accordance with the provisions of the Convention.
B. Jurisdiction with Respect to Immunity of the Italian Marines
24. Turning then to the other issue, the immunity of the Marines, more important from the perspective of Italy, the Arbitral Tribunal examined the question whether the matter of immunity of State officials could be treated as a dispute within the meaning of Article 288, paragraph 1, of the Convention. On the basis of its examination of all the articles relied upon by Italy to argue that the Arbitral Tribunal has such jurisdiction, the Arbitral Tribunal came to the conclusion that the “Convention may not provide a basis for entertaining an independent immunity claim under general international law”.Footnote 27 This is a significant finding that should have put an end to the case before the Arbitral Tribunal, leaving the dispute on the issue of immunity of the Marines to the Special Court of India.
25. The Arbitral Tribunal, however, rejecting the objections of India by a majority vote, found that
(i) it “is one aspect out of several, albeit an important one, that requires examination in resolving the Parties’ dispute”;Footnote 28 and (ii) to resolve the dispute “satisfactorily” and “conclusively”, it is incumbent upon it to examine the “issue of immunity of the Marines” which “is an incidental question that necessarily presents itself in the application of the Convention in respect of the dispute before it”.Footnote 29 The Arbitral Tribunal thus founded its jurisdiction over Italy's claim on the immunity of the Marines on the ground that it is an issue that is incidental to the more general dispute over which it has jurisdiction, that is, which State is entitled to exercise its jurisdiction over the incident.
26. On the merits of the Italian claim concerning the immunity of the Marines, the Arbitral Tribunal, by a majority vote, decided that “the Marines were, as members of Italy's armed forces, fulfilling a State function”Footnote 30 when they were deployed on “Enrica Lexie” as part of a VPD pursuant to a mandate from the Italian State, as provided in the Italian law on VPDs to ensure “the protection of the ships flying the Italian flag in transit in international maritime spaces at risk of piracy”.Footnote 31 In this connection, it took the view that the fact that “the Marines were stationed on a merchant vessel, and not a warship” did “not alter […] the character of their mission as part of the VPD, undertaking acts in an official capacity attributable to the Italian State”.Footnote 32
27. I respectfully disagree with these conclusions of the Arbitral Tribunal both on the issue of jurisdiction over, and on the merits of, the Italian claim concerning the immunity of the Marines. I am of the view that the Arbitral Tribunal erred in treating the issue of immunity as an incidental matter to the dispute between Italy and India concerning the “jurisdiction over the incident”. I am also of the view that its conclusion that the Italian Marines are entitled to immunity from Indian jurisdiction does not have a basis in general (customary) international law. I entirely disagree with its finding that the Marines are entitled to immunity from Indian jurisdiction, even when they were on a commercial (cargo) vessel, under private ownership, whereas immunity under general international law is reserved in respect of a ship “used only on government non-commercial service”.Footnote 33
28. I will first deal with my point that the issue/dispute concerning the immunity of the Marines is not and cannot be treated as an issue incidental to the dispute between Italy and India concerning the jurisdiction over the incident.
1. Lack of Jurisdiction of the Arbitral Tribunal over the Immunity of the Marines: A Dispute Not Within the Scope of Article 288, paragraph 1, of the Convention.
29. India submitted that the subject of immunity of State officials from foreign criminal jurisdiction is not a subject covered by any of the provisions of the Convention and hence not within the competence of the Arbitral Tribunal to deal with under Article 288, paragraph 1. Italy, on the other hand, submitted that Article 2, paragraph 3; Article 56, paragraph 2; Article 58, paragraph 2; Article 95; Article 96; and, as a subsidiary argument, Article 297, paragraph 1, subparagraphs (a) and (b), provide a basis for the Arbitral Tribunal to assume jurisdiction over the issue of immunity. The Arbitral Tribunal held in this regard that it could exercise its jurisdiction over the issue of immunity, not as an issue covered by the Convention, but as an incidental issue necessary to discharge its mandate fully and completely. In so deciding, for reasons noted below, I consider that the Arbitral Tribunal erred and exceeded its competence.
30. The Arbitral Tribunal's decision to assume jurisdiction over the issue of immunity, although it found that it is not as an issue covered by the Convention, but on the ground that it is an issue incidental to the dispute and necessary to discharge its mandate fully and completely is fundamentally wrong and based on untenable propositions. It is not unusual for a tribunal to face more than “one aspect out of several, albeit an important one, that requires examination in resolving the Parties’ dispute”.Footnote 34 As was observed by the ICJ in the case between Bolivia and Chile, “in the past, applications that are submitted to the Court often present a particular dispute that arises in the context of a broader disagreement between parties”.Footnote 35 In that connection, the Court observed that “while it may be assumed that sovereign access to the Pacific Ocean is, in the end, Bolivia's goal, a distinction must be drawn between that goal and the related but distinct dispute presented by the Application, namely, whether Chile has an obligation to negotiate Bolivia's sovereign access to the sea and, if such an obligation exists, whether Chile has breached it”.Footnote 36 In any case, the problem whether it constituted as an incidental issue did not arise in that case because “[t]he Application”, as the Court noted, “does not ask the Court to adjudge and declare that Bolivia has a right to sovereign access”.Footnote 37
31. Courts or tribunals faced with such a situation have undertaken first to isolate the real issue of the case and the object of the claim on the basis of an objective examination of the application or notification, the memorials and counter-memorials, and the arguments placed before it. The Arbitral Tribunal, following this well-established practice,Footnote 38 noted that the real issue of the case and the object of claim is a dispute between the Parties concerning the interpretation or application of the Convention and that it is about which State is entitled to exercise jurisdiction over the incident of 15 February 2012 involving the “Enrica Lexie” and the “St. Antony”. The Arbitral Tribunal, despite its finding that none of the articles relied upon by Italy to claim that India is in violation of its obligation to respect the immunity of the Marines are “pertinent and applicable in the present case”, found fit to exercise jurisdiction over the dispute concerning immunity of the Marines on the ground that it is an important matter arising out of several issues raised by the dispute, deserving a full and complete answer as “an incidental question that necessarily presents itself in the application of the Convention in respect of the dispute before it”.Footnote 39
32. In the process, the Arbitral Tribunal relied upon the oft-cited dictum from the Certain German Interests in Upper Silesia case to conclude that it is entitled to assume jurisdiction over the dispute between the Parties concerning the immunity of the Marines. In so doing, the Arbitral Tribunal failed to see that the facts and issues involved in that case were different and not comparable to the facts and claims of the present case to offer necessary guidance and justification to treat the issue of immunity of the Marines as an ‘incidental issue’ to the dispute concerning the jurisdiction over the incident.
33. It may be observed that, in the case concerning Certain German Interests, the Permanent Court of International Justice made a distinction between rights held by Germany in its own right as a sovereign as opposed to its interests as a holder of private property. Germany sought the jurisdiction of the Permanent Court in respect of a dispute with Poland, in accordance with Article 23 of the 1922 Geneva Convention concluded between Germany and Poland for the protection of private property interests over large industrial estates of German Upper Silesia. The issues involved in the case were related to differences of opinion between the German and Polish Governments respecting the construction and application of the provisions of Articles 6 to 22.
34. We may recall in this connection that, following the First World War, Poland acquired sovereignty over Upper Silesia as a successor to Germany. Poland opposed the jurisdiction of the Permanent Court on the ground that, under Article 256 of the Treaty of Versailles, as a State succeeding Germany, it was entitled to enact a measure of “liquidation” concerning property, rights, and interests which Germany had enjoyed prior to the creation of Poland. Poland claimed that any dispute between the two parties in this regard was subject to settlement by recourse to the German-Polish Mixed Arbitration Tribunal constituted in pursuance of the Treaty of Versailles.
35. The Permanent Court rejected Poland's objection to its jurisdiction on the ground that there was a dispute between the two States concerning “the sphere of application of Articles 6 to 22” of the Geneva Convention;Footnote 40 and that the “jurisdiction possessed by the Court under Article 23 in regard to differences of opinion between the German and Polish Governments with respect to the construction and application of the provisions of Articles 6 to 22 concerning the rights, property and interests of German nationals is not affected by the fact that the validity of these rights is disputed on the basis of texts other than the Geneva Convention”.Footnote 41 The Permanent Court noted that it may be indispensable to interpret the Treaty of Versailles in respect of the rights claimed by Poland under Article 256 of the same as part of its examination of the merits of the case but determined that such matters would “constitute merely questions preliminary or incidental to the application of the Geneva Convention”.Footnote 42 In this connection, the Permanent Court asserted that “the interpretation of other international agreements is indisputably within the competence of the Court if such interpretation must be regarded as incidental to a decision on a point in regard to which it has jurisdiction”.Footnote 43
36. It is clear from the above that in the case of Certain German Interests, it was necessary for the Permanent Court to deal with the rights of Poland under Article 256 of the Treaty of Versailles in order to come to a conclusion on its obligations under the Geneva Convention. Under the circumstances, issues arising under Article 256 of the Treaty of Versailles were treated as “incidental” to the Permanent Court's jurisdiction under Article 23 of the Geneva Convention. There exists no such inseparable or integral link between the issue of immunity and the issue of exclusive jurisdiction claimed by Italy in the present case.
37. Further, while the immunity of the Marines is submitted as one issue out of several, as the Arbitral Tribunal rightly noted, that does not necessarily make it an incidental issue, as immunity of State officials is not linked to any of the subject matters dealt with by the Convention. In fact, it is specifically excluded from the Convention by virtue of the strictly limited context in which “complete immunity” is recognized. It is notable that whereas Article 95 provides for the right of warships on the high seas “to have complete immunity from the jurisdiction of any State other than the flag State”, Article 96 qualifies the same, limiting it only in respect of “ships owned or operated by a State or used only on government non-commercial service” (emphasis added). An equally significant conclusion that emerges from Article 27 on the definition of warship, is that the immunity warships enjoy under the Convention comprises immunity only in respect of the officer in command, “duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent and manned by a crew which is under regular armed forces discipline”.
38. Moreover, the issue of immunity of State officials, even if it is an important aspect of the Italian case is a subject that lies outside the scope of the Convention, like issues of “sovereignty or other rights over the continental or insular land territory”.Footnote 44 Inasmuch as issues of sovereignty are excluded from the scope of the Convention under Section 3 of Part V, immunity of State officials, as an attribute of the principle of sovereignty of States under international law, should, likewise, be deemed to have been excluded.
39. An examination on an “objective basis”Footnote 45 of the various submissions made by Italy before the Arbitral Tribunal makes it quite clear that the issue of immunity of the Marines is submitted to the Arbitral Tribunal, not as an incidental issue, but as a core issue deserving of treatment as an independent dispute. It is clear that the “object of [Italy's] claim”Footnote 46 is to preclude India from exercising its jurisdiction over the Marines, and for this purpose, from the very outset of the dispute, Italy advanced the claim of immunity independently of its other claim that Italy, as the flag State, enjoyed exclusive jurisdiction over the incident.Footnote 47 In effect, it is evident that Italy brought before the Arbitral Tribunal two different disputes: one, as the Arbitral Tribunal noted, as to “which State may exercise jurisdiction over the incident [of 15 February 2012]”Footnote 48 and the other concerning the issue of immunity of the Marines, opposable only to the jurisdiction being exercised by India.
40. The fact that the issue of immunity is an independent dispute is also further supported by the fact that the Arbitral Tribunal's determination that both India and Italy enjoyed concurrent jurisdiction over the incident is based on Article 92 dealing with the exclusive jurisdiction of the flag State. In arriving at this conclusion it did not have to interpret or apply any of the articles cited by Italy in defence of its claim that India violated its obligations under the Convention by not respecting the immunity of its Marines. It is self-evident that the issue of immunity would not even have arisen if there was a collision between the “Enrica Lexie” and the “St. Antony” and the Tribunal concluded that Italy alone had exclusive jurisdiction over the incident under paragraphs (1) and (3) of Article 97.
41. The Arbitral Tribunal, on the other hand, to reach the conclusion it did on the dispute concerning immunity, as will be shown below, had to examine the matter under general international law and did not find any of the articles of the Convention, on which Italy relied for this purpose, as applicable.
2. Identification of an “Incidental Matter” to a Dispute within the Scope of Article 288, paragraph 1, of UNCLOS
42. It is generally agreed that the Convention does provide a basis for treating some issues as incidental to a dispute under Article 288, paragraph 1. But what can be treated as an incidental issue or not is strictly governed by two important features of the Convention. First, the Convention is framed as a constitution of the oceans; and in that sense it is not a comprehensive and “self-contained regime”.Footnote 49 Second, the Convention, as an outcome of the negotiations held from 1974 to 1982, not counting the discussions held in the United Nations Seabed Committee during 1968 to 1974 and later during 1990-1994 leading to the conclusion of the 1994 supplementary Agreement by way of implementation of Part XI of the Convention, is treated as a package deal. The provisions of Part XV on settlement of disputes are part of that package deal. After all, as observed by a commentator, with the exception of the ICJ, nearly all of the tribunals in the international arena, including ITLOS and arbitral tribunals envisaged under Annex VII of the Convention, are “treaty bodies” or “specialized bodies”, and, as such, it is a well-established principle in international law that, in order to ascertain their jurisdiction, international courts and tribunals are required to determine whether or not the subject-matter of the dispute falls within the provisions of the treaty under which they are established. This requirement must be assessed as an element of jurisdiction ratione materiae under the heading of what is usually called today the “platform test”.Footnote 50
43. The Convention, regarded as the “Constitution for the Oceans”,Footnote 51 does allow for the interpretation and application of its provisions considering principles of international law that govern the subject matters covered by those provisions. Matters concerning the conservation of fisheries, marine environment and bio-diversity, pollution due to oil spills, efficient management of resources in the exclusive economic zone, marine scientific research, and the balancing of the freedom of navigation and security interests of coastal States, on the one hand, and those of the major maritime powers including those in respect of military uses of the oceans and suppression of piracy, on the other, are examples of subjects in respect of which the international law of the sea is constantly evolving. Principles of international law, adopted by States by way of codification and progressive development, relating to the lawful use and optimum management of the sea where otherwise not incompatible with the provisions of the Convention, as noted in Article 293, are admissible as applicable law in deciding a dispute concerning the interpretation or application of the Convention. In that sense, “the UNCLOS is not a self-contained treaty”.Footnote 52
44. Nevertheless, there are clear limits on the exercise of jurisdiction by the courts or tribunals, including those constituted under Annex VII of the Convention, elected by States under Article 287, to settle disputes involving the interpretation or application of Convention. These limits are inherent in the scheme of the settlement of disputes under Part XV, which is a part and parcel of the package deal that characterises the nature of the Convention.
3. The Scheme of the Settlement of Disputes under Part XV of the Convention
45. The scheme for the settlement of disputes embodied in Part XV of the Convention is complex and carefully crafted. It is limited in scope to the interpretation or application of the Convention. It is essential for tribunals constituted in accordance with Part XV of the Convention to exercise judicial caution to avoid abuse to which it is open, and to limit their jurisdiction strictly in respect of disputes on subject matters relevant only to the exercise of their mandate, which is the “interpretation or application of the Convention”.Footnote 53 There are two good reasons for this. For one, compulsory jurisdiction in international law is an exception to the basic principle that the consent of States parties to a dispute is the basis of the jurisdiction of international courts and tribunals. Secondly, it is well-accepted that UNCLOS is the result of a “package deal”Footnote 54 and adopted by States parties to it, by consensus, providing for multiple uses in a given maritime area. In the process, the package deal succeeded in designing a Convention that accommodates interests arising from the exercise of sovereign rights and exclusive jurisdiction by coastal States over the exclusive economic zone, without undermining or subordinating the rights of other States in respect of the freedoms of the high seas guaranteed by the Convention beyond the 12-mile limit of the territorial sea.Footnote 55 By way of balancing the competing and sometimes conflicting interests, the Convention makes reference to “external rules” in about 100 of its provisions, which, as noted by a commentator, concern, depending upon the provisions, “other rules of international law”, “generally accepted international regulations” or “standards”, “generally recommended international minimum standards, whether subregional, regional or global”, other treaties, agreements or “applicable international instruments” and “resolutions and recommendations of other international organizations”.Footnote 56
46. Similarly, Article 300 also requires States parties to the Convention to “fulfil in good faith the obligations assumed under this Convention and [to] exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right”. In spite of the references noted thus to “external rules” including the reference to “other rules of international law” in Article 293, it is understood that these references cannot in and of themselves provide a basis for enlarging the jurisdiction ratione materiae of the tribunals constituted under Annex VII or of ITLOS to cover disputes under general international law unless the law in question has a bearing on the utilization or management of the oceans.
47. The integrated structure of the “package deal” highlights the fact, as the third paragraph of the Preamble of the Convention stated, that “the problems of ocean space are closely interrelated and need to be considered as a whole”. There is good reason therefore to operate the scheme of compulsory settlement of disputes with every possible judicial caution, keeping in view the “need for uniform interpretation and application of the Convention” to prevent “the disintegration of the delicate compromises so carefully negotiated to offer balanced protection to competing rights and interests”.Footnote 57
48. In a pertinent comment, the arbitral tribunal in the Chagos Marine Protected Area Arbitration noted thus:
The negotiation of the Convention involved extensive debate regarding the extent to which disputes concerning its provisions would be subject to compulsory settlement. The distrust with which some participants at the Conference viewed compulsory settlement is evidenced by the inclusion in the final texts of substantial carve outs, in Article 297, for disputes relating to the exercise of sovereign rights and jurisdiction in the exclusive economic zone. It is also apparent in the option, in Article 298(a)(i), for States to exclude the delimitation of maritime boundaries from dispute settlement, subject only to the requirement of compulsory conciliation. Given the inherent sensitivity of States to questions of territorial sovereignty, the question must be asked: if the drafters of the Convention were sufficiently concerned with the sensitivities involved in delimiting maritime boundaries that they included the option to exclude such disputes from compulsory settlement, is it reasonable to expect that the same States accepted that more fundamental issues of territorial sovereignty could be raised as separate claims under Article 288(1)?Footnote 58
49. Answering the question, the arbitral tribunal noted that “had the drafters intended that such claims could be presented as disputes ‘concerning the interpretation or application of the Convention’, the Convention would have included an opt-out facility for States not wishing their sovereignty claims to be adjudicated, just as one sees in Article 298(1)(a)(i) in relation to maritime delimitation disputes”.Footnote 59
50. In the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait between Ukraine and the Russian Federation, the arbitral tribunal endorsed this view even more directly when it concluded that the fact that “a sovereignty dispute is not included either in the limitations on, or in the optional exceptions to, the applicability of compulsory dispute settlement procedures supports the view that the drafters of the Convention did not consider such a dispute to be ‘a dispute concerning the interpretation or application of the Convention’.”Footnote 60
51. Accordingly, where more than one issue is involved in a dispute strictly regulated by the Convention, it is, as pointed out by Mathias Forteau, “crucial for the purpose of assessing jurisdiction ratione materiae under Part XV of the UNCLOS” to determine whether the issues involved are related to each other as subject matters covered by the Convention “or to the contrary must be considered as an obstacle to jurisdiction”.Footnote 61 For example, in the Chagos Marine Protected Area Arbitration, the arbitral tribunal held that “[w]here the ‘real issue in the case’ and the ‘object of the claim’ do not relate to the interpretation or application of the Convention […] an incidental connection […] is insufficient to bring the dispute, as a whole, within the ambit of Article 288(1)”.Footnote 62 In the South China Sea Arbitration between the Philippines and China, the arbitral tribunal noted that only when a dispute can “fairly be said to concern the interpretation or application of the Convention”, it is deemed to come within the scope of Article 288(1).Footnote 63
52. In the Dispute Concerning Coastal State Rights, the arbitral tribunal first identified the real issue involved, which it determined to be whether there existed “a sovereignty dispute over Crimea, and if so, whether such dispute is ancillary to the determination of the maritime dispute brought before the Arbitral Tribunal by Ukraine”.Footnote 64 On this score, the arbitral tribunal came to the conclusion that the Parties’ dispute over Crimea is not a minor issue ancillary to the dispute concerning the interpretation or application of the Convention. On the contrary, the question of sovereignty is a prerequisite to the Arbitral Tribunal's decision on a number of claims submitted by Ukraine under this Convention. Those claims simply cannot be addressed without deciding which State is sovereign over Crimea and thus the “coastal State” within the meaning of provisions of the Convention invoked by Ukraine.Footnote 65
53. Accordingly, it concluded that it cannot deal with that issue even if, as Ukraine argued, “the relative weight of the dispute lies with the interpretation or application of the Convention”.Footnote 66
54. Thus, a dispute concerning an “external rule”, like the one related to the immunity of State officials from foreign jurisdiction, cannot be treated as a dispute “concerning the interpretation or application” of the Convention. It is further clear, as the Arbitral Tribunal itself noted, that the question of immunity from jurisdiction, by definition, operates as “an exception to an otherwise-existing right to exercise jurisdiction” over the merits of the case.Footnote 67
55. In other words, the issue of immunity is fundamentally a procedural objection to be pleaded as an exception to jurisdiction which is otherwise found to exist in spite of it. Judges Higgins, Kooijmans, and Buergenthal, in their Separate Opinion in the Arrest Warrant case put it thus: “Immunity is the common shorthand phrase for immunity from jurisdiction”.Footnote 68 Accordingly, the distinguished judges stressed: “If there is no jurisdiction en principe, then the question of an immunity from a jurisdiction which would otherwise exist simply does not arise”.Footnote 69 Moreover, as the ICJ emphasized in the case, “the rules governing the jurisdiction of national courts must be carefully distinguished from those governing jurisdictional immunities: jurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction”.Footnote 70
56. On the basis of the above analysis, the question concerning immunities of State officials, by any reckoning, cannot and, in fact, did not have any bearing on the interpretation or application of any of the provisions of the Convention; hence, is not an incidental issue.
4. Essential Distinction between Competence to Deal with a Dispute and ‘Applicable Law’ to Settle the Dispute on Merits
57. At this stage, it may be opportune to deal with the submission of Italy to which the Arbitral Tribunal refers in support of assuming jurisdiction over the issue of immunity. Italy argued that “[t]here is nothing unusual in an international court or tribunal with jurisdiction over a dispute concerning the interpretation or application of a treaty deciding questions of international law that necessarily arise in the resolution of the dispute”.Footnote 71 In the interest of balance, the Arbitral Tribunal also recalled the point made by India when it noted that “ITLOS, as well as Annex VII tribunals, are called to apply, besides the UNCLOS itself ‘other rules of international law not incompatible with [the] Convention’.”Footnote 72 While it is undeniable, as noted above, that the Convention is not a self-contained treaty and is open to constant evolution, subject to the needs of the international community and in light of the developments in the field of science and technology, it can only rely upon such principles of international law that are “not incompatible with the Convention”. The important point to note in this regard is that the Arbitral Tribunal clearly confuses issues of “applicable law” under Article 293, which governs the merits of a matter that otherwise fall under its competence, with issues relating to its competence under Article 288, paragraph 1, which is a preliminary matter.Footnote 73
58. Equally irrelevant is Italy's claim that the Arbitral Tribunal is competent to decide the issue of immunity because “it would make no sense whatsoever for the Tribunal to determine that a state has jurisdiction under the Convention without, at the same time, deciding whether the exercise of such jurisdiction would be lawful under international law”.Footnote 74 After all, if the Arbitral Tribunal found that India has a valid but concurrent jurisdiction over the incident under Article 92 of the Convention, it goes without saying that any such exercise would be ipso facto lawful and no separate determination would appear to be necessary.
59. For the reasons noted above, the Italian submission on immunity of its marines is a separate dispute and not a matter incidental to the dispute over which the Arbitral Tribunal could exercise its jurisdiction.
C. Immunity Ratione Materiae Under International Law: Immunity of the Marines, in Particular
60. In light of the above conclusion that the Arbitral Tribunal lacks competence to deal with the issue of immunity of the Marines, it would not be strictly necessary for me to deal with issues of immunity ratione materiae under international law in general and the eligibility of the Marines to claim immunity from the jurisdiction of India. However, as the Arbitral Tribunal considered itself competent to deal with the matter on its merits, I consider that it is necessary for me to indicate my views in this regard.
61. It may be recalled, as a preface to the consideration of the matter of immunity ratione materiae on its merits, that the Arbitral Tribunal framed the question before it thus: “whether India, as the flag State of the ‘St. Antony’, on which the effects of the Marines’ alleged offences – the death of Mr. Ajeesh Pinku and Mr. Jelastine Valentine – occurred, has in principle the right to exercise jurisdiction over the Marines or whether such exercise of jurisdiction is precluded because the Marines enjoy immunity under international law”.Footnote 75
62. To answer this question, the Arbitral Tribunal felt obliged to examine immunity ratione materiae under customary international law, in the absence of any provision dealing with that issue in the Convention. Based on the decisions of the ICJ, the International Criminal Tribunal for the Former Yugoslavia, the work of the ILC concerning the immunity of State officials from foreign criminal jurisdiction, and Articles 5 and 6, paragraph 1, of the ILC Draft Articles on Immunity of State Officials, the Arbitral Tribunal came to the conclusion that State officials acting as such enjoy immunity ratione materiae. Footnote 76
63. On the applicability of that general proposition on immunity ratione materiae to the specific case of the Marines in the present case, the Arbitral Tribunal again fell back on the work of the ICJ in Certain Questions of Mutual Assistance in Criminal Matters and the guidance provided by the work of the Special Rapporteur Kolodkin to come to the conclusion endorsed by the work of the ILC on State responsibility, that officials, irrespective of their rank in the hierarchy of their government, enjoy immunity if the acts performed are attributable to the State they serve.Footnote 77
64. Finally, the Arbitral Tribunal, accepting all the submissions of Italy, concluded that in the present case, “the Marines were, as members of Italy's armed forces, fulfilling a State function” when they were deployed on the “Enrica Lexie” as part of a VPD pursuant to the mandate of the Italian State, as provided in the Italian Law on VPDs, to ensure “protection of ships flying the Italian flag in transit in international maritime spaces at risk of piracy”.Footnote 78 Referring to the fact that “the Marines were stationed on a merchant vessel, and not a warship”, the Arbitral Tribunal noted that in its view, this “does not alter their status and the character of their mission as part of the VPD, undertaking acts in an official capacity attributable to the Italian State”.Footnote 79
65. Having concluded that the Marines enjoy immunity under customary international law, the Arbitral Tribunal examined whether the Marines could still be prosecuted by India “as a result of the application of the ‘territorial tort’ exception”.Footnote 80 It may be recalled that this principle was incorporated in Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Property.Footnote 81 According to this principle, unless otherwise agreed between the States concerned,
a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.Footnote 82
66. In this regard, the fact that the Marines were on board the “Enrica Lexie”, and not on Indian territory, when they committed the acts at issue, proved decisive for the Arbitral Tribunal to come to the conclusion that neither Article 12 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, nor the “territorial tort” exception, even if it “were recognised under customary international law”, are applicable in the circumstances of the present case.Footnote 83
67. On the basis of the above analysis, the Arbitral Tribunal concluded that “the Marines enjoy immunity in relation to the acts that occurred during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines”.Footnote 84
68. Regretfully, I disagree with all the reasons enumerated by the Arbitral Tribunal for its findings, which in the final analysis led it to conclude that India is precluded from exercising its jurisdiction on the ground that the Marines were entitled to immunity. The finding of the Arbitral Tribunal on the immunity ratione materiae of State officials, under customary international law, as a general proposition, is not in issue, but its application in a specific case is a matter of substantial debate, particularly in the absence of a uniform State practice.
1. International Law Governing Immunity of Officials from Foreign State Criminal Jurisdiction
69. International law governing immunity of officials from foreign State criminal jurisdiction is constantly evolving.Footnote 85 The work of the ILC on immunity of State officials from foreign criminal jurisdiction is a work in progress.Footnote 86 It is well accepted that while immunity ratione personae is accepted only in the case of a limited and select category of high functionaries of State,Footnote 87 the matter of functional immunity, that is, immunity ratione materiae, is limited by the nature and scope of the official function involvedFootnote 88 and strictly governed by specific multilateral agreements.Footnote 89 In the case of placement of armed forces of one country within the territory of another country, immunity ratione materiae is governed by special agreements, frequently referred to as ‘status of forces agreements’.Footnote 90 Even in the case of the Marines, subject of the present Arbitration, Article 2.1 of the Template Agreement, which governs their deployment on Italian vessels, provides that, “[e]mbarkation and disembarkation of Vessel Protection Detachments takes place, based on existing agreements with coastal States in the High Risk Area, in ports listed in the Addendum”.Footnote 91
70. Under the circumstances, while as a general proposition it may be possible to assert that under international law, government officials performing government functions enjoy immunity from foreign State jurisdiction, it is equally clear its application to specific cases involving commercial and non-government service is highly contested, with an ever growing number of countries favouring and adopting a restrictive theory of immunity.Footnote 92
71. Notable in this connection is the view taken by the ILC in the early stages of its consideration of the topic of ‘Jurisdictional immunities of States and their property’ (which it took up for codification and progressive development in 1978). As part of his initial or preliminary proposal, the then-ILC Special Rapporteur, Mr. Sompong Sucharitkul, provisionally identified certain categories of property which were exempt from attachment for the purpose of execution of a court decree. He referred to “State property used in connections with its sovereign functions, such as diplomatic or consular or governmental representation”, and noted that such property “remains immune from attachment and execution”.Footnote 93 The ILC, after considering the proposal, observed that “the question of the extent of, or limitations on, the application of the rules of State immunity required an extremely careful and balanced approach”.Footnote 94 Accordingly, the ILC felt that “the exceptions identified in the preliminary report” should be considered as merely “possible limitations, without any assessment or evaluation of their significance in State practice”.Footnote 95
72. It was also agreed that the question of immunity from execution of judgment should be left for later consideration, that is, towards the end of the finalization of the draft articles, as it required the “greatest care”, given “the widening functions of the State, which had enhanced the complexities of the problem of State immunities”.Footnote 96 The ILC took the view that as the State began to engage in activities such as trade and finance – areas which were formerly undertaken only by individuals or entities – controversies had existed in the past concerning the divisibility of the functions of the State, resulting in “[no] generally accepted criterion for identifying the circumstances or areas in which State immunity could be invoked or accorded”.Footnote 97
73. Accordingly, Italian national law, ipso facto, without more by way of applicable principles of international law, or an agreement between India and Italy could not be cited as an obstacle for India to exercise its jurisdiction over the Marines. In this context, it is notable that “Italy sought but failed to obtain an agreement with India on the status of VPDs”.Footnote 98
74. The crux of the matter in the present Arbitration is whether the Marines are entitled to immunity given the terms and conditions of their deployment on a cargo vessel. The findings of the Arbitral Tribunal on that matter are devoid of any basis in customary international law.
2. Employment of the Marines by a Cargo Vessel: Not a “Government Non-commercial Service”
75. It is clear that the Marines were members of VPD of the Italian naval judicial police. The Italian law cited for establishing this point is not in question. Equally clear is the fact that they fired shots (leaving aside for the moment questions of evidence) in pursuance of the function assigned to them, that is, to protect the merchant vessel from what they apprehended to be a possible piracy attack or armed robbery. However, it is equally clear that in the context of the present case, the terms and conditions of the placement of the Marines on the “Enrica Lexie”, as specified in the Memorandum of Understanding between the Ministry of Defence of Italy and the Italian Ship Owners’ Association,Footnote 99 are decisive to determine the eligibility of the Marines for immunity under international law.
76. An examination of the terms and conditions of that Memorandum and its annexes reveals that the deployment is:
(i) based on a contract of services offered by the Government of Italy to the Italian merchant/cargo vessels, subject to payment of a specified daily allowance as consideration; and
(ii) open to ship owners to accept at their free will, subject only to the condition that they should first seek such service from the Italian authority in charge of the VPDs before seeking the same from private sources.
77. In other words, the deployment of marines is a form of “supply of services” to the owner of the merchant vessel who “intends” to use themFootnote 100 upon payment of EUR 467 per day, covering “costs linked to the employment of VPDs, including ancillary costs for personnel, operation and in-area logistic support”.Footnote 101 The deployment of marines is viewed as an “institutional contribution based on the principle of burden-sharing with individual signatory Ship owners”.Footnote 102 It is also clear that the deployment of Italian marines on Italian merchant/cargo vessels is only intended to “complement”, but not as part and parcel of, “actions conducted at sea by military ships”.Footnote 103 In that sense, it is clear that the VPDs, despite their status as officials of the Italian naval police, are not authorized “to patrol the seas, board, inspect or arrest suspect pirate ships”.Footnote 104
78. In as much as the Marines were deployed on a commercial cargo vessel as part of an offer of services to the private Italian ship owners on payment of a fee, it is a quintessentially commercial contract or transaction between the Government of Italy and the Italian ship owners. A commercial transaction, according to Article 2, paragraph 1, subparagraph (c)(i), of the United Nations Convention on Jurisdictional Immunities of States and Their Property means “any contract or transaction for the sale of goods or supply of services”.Footnote 105 Further, Article 2, paragraph 2, of the same Convention provides that the “nature” of the contract or transaction “primarily” determines its commercial character. However, if the parties to a contract or transaction so agree or if, in the practice of the State of the forum, it is relevant, the “purpose” of the contract or transaction could also be taken into account.Footnote 106
79. In addition, it is undisputed that the Marines were operating on a merchant/cargo vessel and not on a ship which is exclusively operated for a “government non-commercial purpose”, an essential criterion to distinguish services offered as part of commercial services from services rendered as part of State's sovereign functions. It is well accepted in international law that only “government non-commercial service” would qualify for immunity from foreign State jurisdiction. An example of this is warships, as noted above.Footnote 107
80. In view of the above, the conclusion reached by the majority of the Arbitral Tribunal, that the Marines are entitled to immunity from the jurisdiction of India, is not supported by State practice, let alone one that is uniform and consistent. Thus, it is without foundation either in treaty or customary international law. Accordingly, the conclusion reached by the Arbitral Tribunal on the merits of the Italian claim concerning the immunity of the Marines does not fit well, like a square peg in a round hole, with the well-established principle under international law that government officials enjoy immunity from foreign jurisdiction for official acts performed. This is because the service rendered by the Marines was part of an agreement amounting to a commercial contract.
VI. HUMANITARIAN CONSIDERATIONS
81. With the decision of the Arbitral Tribunal, this Arbitration comes to a close, more than eight years after the incident. The case management, whether at the national level in India or later at the international level (before ITLOS and the present Annex VII Arbitral Tribunal), for much of the time, was concerned with writ petitions and provisional orders addressing serious health and humanitarian side effects of the case on the Marines. Ironically, the long delay and the extended legal battle only further aggravated the side effects on all those concerned, including the Marines, giving rise to grave humanitarian concerns. The result is that the families of the two dead Indian fishermen and Captain Fredy, as well as other fishermen, are given no relief from their loss or suffering in the absence of proper reparation.
82. It is a matter of some satisfaction that despite the legal complications, which are beyond diplomatic means, India and Italy kept their diplomatic channels open and engaged at all times. They even concluded an agreement, which India ratified soon after the shooting incident, regarding the transfer of sentenced persons. According to this pact, the execution of the sentence shall be governed by the administering State, which will be free, under its laws, to provide alternative measures. The agreement is inspired by the Convention on the Transfer of Sentenced Persons, done at Strasbourg on 21 March 1983.Footnote 108
83. As a result of the Arbitral Tribunal's decision, the Marines, who are now in Italy pending a final decision on this Arbitration, do not have to return to India to face its judicial process, subject only to such legal process as Italian authorities may consider necessary under their law. This answers one side of the humanitarian crisis that plagued this case. In addition, the Arbitral Tribunal addressed some urgent humanitarian considerations on the Indian side also. It ordered Italy to pay the necessary compensation to India for the damage suffered by India, Captain Fredy, and the Indian fishermen, on account of the physical harm and material damage to their property (including to the “St. Antony”) and mortal harm suffered by the crew members of the “St. Antony”, attributing responsibility to Italy for the death of the two Indian fishermen. I welcome these conclusions, despite my reservations on the subject of immunity of the Marines.
84. In this regard, the Arbitral Tribunal invited the Parties “to consult with each other with a view to reaching agreement on the amount of compensation due to India”.Footnote 109 The Arbitral Tribunal noted that it “shall retain jurisdiction, should either Party or both Parties wish to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India”, if such an application is submitted within one year from the date of the Award.Footnote 110
VII. CONCLUSIONS
(i) The Arbitral Tribunal can only have jurisdiction over a dispute concerning the interpretation or application of the Convention. A dispute may involve more than one aspect or issue, but it is for the Arbitral Tribunal to isolate the ‘real issue of the case’.
(ii) An objective examination of the ‘real issue of the case’ and the ‘object of the claim’ revealed two distinct and separate disputes: one, which of the two countries, India or Italy, is entitled to exercise its jurisdiction over the incident of 15 February 2012; the other, concerning the immunity of Marines from foreign criminal jurisdiction, to wit, the Indian jurisdiction.
(iii) Accordingly, the claim concerning immunity is not and cannot be treated as an incidental issue to the other dispute over which the Arbitral Tribunal found jurisdiction.
(iv) To the extent that the issue of immunity of State officials is not covered by any of the provisions of the Convention, the Arbitral Tribunal is not empowered to exercise its jurisdiction to determine its validity in accordance with Article 288, paragraph 1, of the Convention. In addition, the claim of immunity operates as an exception to an otherwise existing jurisdiction.
(v) It may be recalled that the Marines were employed by the owner of an oil tanker for rendering a service in return for a payment of a daily allowance and other incidental costs for such employment. Service rendered under those conditions is anything but a “government non-commercial service”. Under the circumstances, it fails to meet the essential condition under international law to qualify for immunity from foreign jurisdiction. In the case of military personnel of one country stationed or visiting another country, a claim of immunity is admissible only if there is an agreement between the sending and receiving State. Italy did not have such an agreement with India to cover the Marines in the present case.Footnote 111
(vi) The Convention does not deal with issues of general international law or other treaty regimes not related to subject matters that fall within its scope. The Convention is admittedly not a self-contained treaty and has several provisions which, by their very nature, are open to further evolution in related fields of international law. Provisions of the Convention that deal with the sovereign rights and duties of coastal States over the exclusive economic zone and the continental shelf, conservation of fisheries, marine pollution, bio-diversity and the environment, and security interests or military uses, may be noted as prime examples of such related fields.
(vii) However, as the Convention is the outcome of a ‘package deal’, “external rules” bearing upon the subject matters specified in the Convention could be raised as incidental issues, subject to such exceptions and limitations noted under Section 3, Part XV, and in particular, Articles 297 and 298, of the Convention.Footnote 112
(viii) The regime of compulsory settlement of disputes under Part XV of the Convention is a regime that operates as an exception to the general principle of international law according to which the jurisdiction of an international court or tribunal is based on consent of State parties to the dispute. As an exception to the rule, what is not specified in the Convention's scheme of compulsory settlement of disputes is deemed to have been excluded from it. Accordingly, the claim of immunity cannot be considered by the Arbitral Tribunal without express consent from India.
(ix) Italy and India have done their best to cooperate with each other in good faith to settle matters arising from the “Enrica Lexie” incident. It is even more important that they work together now to settle expeditiously all the pending humanitarian issues on both sides, including issues of compensation.
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I. INTRODUCTION
1. I disagree with the findings in paragraph 1094(A)(1), A(2), A(4), A(5), B(2), B(3), B(4)(a) and B(4)(b) of the Award. I am in agreement with the other findings in that paragraph. In this Opinion, I explain my disagreement with the first six findings.
2. The Opinion has the following parts: Part I: The identification and characterization of the dispute; Part II: The Arbitral Tribunal does not have jurisdiction over the issue of the immunity of the marines; Part III: Assuming that the Arbitral Tribunal has jurisdiction over the issue of the immunity of the marines from the exercise of Indian criminal jurisdiction, the marines do not enjoy immunity ratione materiae; Part IV: Whether the marines are entitled to immunity from the criminal jurisdiction of India in the absence of an agreement between Italy and India: the assimilation of the marines to the status of visiting forces; Part V: General Conclusions.
3. It is argued that the Majority wrongly characterized the dispute as the question of which State has jurisdiction over the incident; that, properly characterized, the dispute concerns the question of the exercise by India of its criminal jurisdiction over the marines in the face of their claim to immunity from that jurisdiction; that the issue of the immunity of the marines does not concern the interpretation or application of the Convention, and that consequently, since that issue is a core element of the dispute, and not an incidental question, the Arbitral Tribunal was obliged to decline jurisdiction over the dispute; and that in any event, the marines do not enjoy immunity from the criminal jurisdiction of India.
II. IDENTIFICATION AND CHARACTERIZATION OF THE DISPUTE
4. In accordance with Article 288, paragraph 1, of the Convention, the Arbitral Tribunal has “jurisdiction over any dispute concerning the interpretation or application of the Convention”. Therefore, in order for the Arbitral Tribunal to be vested with jurisdiction, there must be a dispute and that dispute must concern the interpretation or application of the Convention. Case law on how the task of identifying and characterizing a dispute is to be carried out is well-established. It is therefore regrettable that the Majority has failed to carry out this function in accordance with established jurisprudence.
5. It is settled that a dispute is a disagreement on “a point of law or fact, a conflict of legal views or of interests between two persons”.Footnote 1
6. Case law of the ICJ establishes three features in the process of identifying and characterizing a dispute. First, a court or tribunal examines how the parties themselves have identified and characterized the dispute, but in doing so it has particular regard to the applicant's formulation of the dispute.Footnote 2 However, and second, it is ultimately the responsibility of the court or tribunal to determine on an objective basis the dispute between the parties.Footnote 3 Third, it does that by “isolate[ing] the real issue in the case and … identify[ing] the object of the claim”.Footnote 4 The logic of the case law is that it is the parties who are involved in the dispute that has been brought to the court or tribunal, and it is therefore entirely appropriate for the court or tribunal to examine how they, in particular the applicant, have described the dispute. Nonetheless, the court or tribunal is not bound to accept the description of the dispute by the parties. It has an obligation to determine the nature of the dispute on an objective basis and it carries out this task by examining all the pertinent evidence at hand, including diplomatic communications between the parties and their written and oral submissions. Thus, a party's characterization of the dispute is only a starting point, and a dispute, properly characterized, may have more than one element, and indeed, a case may have more than one dispute.
7. From the very inception of this case, Italy has, both expressly and indirectly, referred to the Indian exercise of criminal jurisdiction over the marines and their claim to immunity therefrom as the core elements of the dispute. In characterizing the dispute in this case as the question of which State has jurisdiction over the Incident,Footnote 5 the Majority has failed to acknowledge the centrality of the issue of the immunity of the marines in the disagreement between the Parties. In terms of the substance of the dispute, the issues of the exercise of Indian criminal jurisdiction and the marines’ claim to immunity therefrom are inseparable and core elements of the dispute.
8. In seeking to support its position that the immunity of the marines is not a part of the dispute, the Majority points to the absence of any statement in the pleadings of either Party “characteri[zing] the dispute between them as one primarily relating to immunity”.Footnote 6 The precise meaning of that statement is not clear. However, what is beyond dispute is that Italy consistently claimed immunity from the exercise by India of its criminal jurisdiction over the marines and India consistently rejected that claim. An objective determination of the dispute shows that it concerns both the exercise by India of its criminal jurisdiction over the marines and their claim to immunity therefrom. In those circumstances, the question whether the dispute relates primarily to immunity does not arise.
9. The Majority maintains that when Italy refers to issues of immunity in defining the dispute, “it is with respect to its relevance as an exception to India's exercise of criminal jurisdiction over the Marines and as one of several bases on which Italy alleges such exercise to be unlawful”.Footnote 7 That statement warrants comment for three reasons. First, in paragraph 1.14 of its Memorial, Italy states that, “reduced to its core the dispute between the Parties is a dispute about jurisdiction and immunity from jurisdiction”. There is absolutely nothing in that statement to suggest that Italy refers to immunity as an exception to India's exercise of criminal jurisdiction over the marines. Second, even if Italy relied on the issue of immunity “as an exception to India's exercise of criminal jurisdiction over the Marines”, that issue could nonetheless constitute a central element of the dispute between the Parties. For an objective determination of the real issue dividing the Parties and the object of Italy's claim could show that the exceptional feature of immunity is a core element of the dispute. Third, even if Italy relied on immunity “as one out of several bases on which Italy alleges such exercise to be unlawful”, such reliance would only have significance if one of those bases itself was a core element of the dispute. No submission to that effect has been made. For example, no one has suggested that an alleged breach of Article 97 of the Convention by India constitutes the dispute between the Parties. What generates the dispute between the Parties is the Italian claim to immunity from the exercise of Indian criminal jurisdiction over the marines.
10. The Opinion now proceeds to an examination of the evidence, which shows that the exercise by India of its criminal jurisdiction over the marines and their claim to immunity therefrom are the core elements of the dispute. Four areas will be examined. First, diplomatic communications between the Parties prior to Italy's filing of its Notification and Statement of Claim. Second, the Notification and Statement of Claim. Third, the written and oral submissions of the Parties and fourth, the drawing of inferences of a Party's opposing views to a dispute from the conduct of the Parties.
A. Examination of the Diplomatic Communications Between the Parties Prior to the Notification and Statement of Claim
11. Although there were several diplomatic communications between the Parties prior to the filing by Italy of its Notification and Statement of Claim on 26 June 2015 which point to the treatment by them of the exercise by India of its criminal jurisdiction over the marines and their claim to immunity therefrom as the core elements of the dispute, the Majority has not cited any of these communications in its identification and characterization of the dispute. Diplomatic communications are a fertile ground for evidence of a dispute. The ICJ frequently examines such communications in its identification and characterization of a dispute; for example, in Belgium v. Senegal, the Court was only able to conclude that there was no dispute in respect of certain claims on the basis of its examination of diplomatic exchanges between the Parties prior to the filing of the application.Footnote 8 The notes verbales that will be examined below were written and communicated in the period not long after the incident on 15 February 2012. They provide material relevant to the characterization of the dispute that is as valuable as the written and oral submissions of the Parties; in fact, it is arguable that, by reason of their closeness in time to the incident, they are more valuable than the written and oral submissions of the Parties. Although in these notes Italy is not expressly setting out to define the dispute as it does in its written pleadings, they provide evidence of Italy's perception of the dispute.
(i) On 16 February 2012, the day after the incident, the Indian Coast Guard boarded the “Enrica Lexie” and informed the marines that the incident fell under the jurisdiction of India's territorial waters. The marines responded that they were only answerable to the Italian authorities, who had already commenced an investigation. They gave the Coast Guard a written document stating that they were entitled to immunities as military forces in transit. The Coast Guard nonetheless carried out its investigation. On the same day, Italy sent a note verbale to India stating that the Italian marines were, “exclusively answerable to the Italian judicial Authorities, under Article 97”.Footnote 9 On the following day (17 February 2012), Italy sent a note verbale to India indicating that “based on international law, the Italian judicial Authorities are the sole competent judicial Authorities for the case in question”.Footnote 10 These communications constitute the first twinning by Italy of the Indian exercise of criminal jurisdiction over the marines and their claim to immunity therefrom as the core elements of the dispute. The subsequent notes examined also illustrate this twinning.
(ii) In the second paragraph of the note verbale of 29 February 2012 from Italy to India, fourteen days after the incident, Italy states, “State organs enjoy jurisdictional immunity for acts committed in the exercise of their official functions. The Italian Navy Military Detachment that operated in international waters on board the ship Enrica Lexie must be considered as an organ of the Italian State”.Footnote 11 The note verbale in its fifth paragraph reasserts Italian exclusive jurisdiction in respect of the said military personnel, and in its penultimate paragraph it states that the marines were carrying out official functions and that their conduct “should not be open to judgement scrutiny in front of any court other than the Italian ones”. In the same note verbale, Italy also stated that “State organs enjoy jurisdictional immunity for acts committed in the exercise of their official functions”. Italy also asserted that it had exclusive jurisdiction in respect of the marines.
(iii) In the first paragraph of another note verbale dated 11 March 2013, less than a month after the incident, from Italy to India, Italy refers to the “Supreme Court decision of 18 January 2013, in which it was denied the Italian jurisdiction on the incident”.Footnote 12 In the second paragraph, Italy stated that India was in “violation of International Law obligations including the principle of immunity of jurisdiction for agents of a Foreign State and the provisions of the [UNCLOS]”. This note verbale, just like the others, provides the basis for an objective determination that both the exercise by India of its criminal jurisdiction over the marines and their claim to immunity therefrom are the core elements of the dispute. In the third paragraph of this note verbale, Italy states that “in the light of said decision of the Indian Supreme Court and of the lack of answer to the Note Verbale dated 6 of march … there is an existing controversy with India concerning the provisions of said Convention and the general principles of International Law applicable to this incident”. This statement reveals that Italy did not accept the “said decision of the Indian Supreme Court” which rejected its claims of immunity for the marines and that it had jurisdiction over the “Enrica Lexie” and the marines; this statement also reveals that Italy did not accept the Indian Court's exercise of jurisdiction over the marines. It is beyond doubt that in this note verbale, Italy twins the elements of the Indian exercise of criminal jurisdiction over the marines and the Italian claim to immunity therefrom as the core elements of what that country describes as “the existing controversy [dispute] with India”.
(iv) In the note verbale of 7 February 2014Footnote 13 Italy stated that “the two Italian Marines enjoy immunity from jurisdiction of Indian courts under international customary law, and that Italy has jurisdiction over the matter”.
(v) A note verbale of 15 February 2014 in similar terms to the one of 7 February 2014.Footnote 14
(vi) In the note verbale of 10 March 2014,Footnote 15 Italy stated that it expected the Indian authorities to dispose of the case in conformity with international law and “with special regard to the international rules on immunity of State officials on duty and on the exclusive jurisdiction of the flag State on the high seas”.
12. On the whole, these diplomatic communications show that, although Italy at times referred to its jurisdiction over the marines on the basis of Articles 92 and 97 of the Convention, the real issue separating the Parties and the object of Italy's claim was the termination of the exercise by India of its criminal jurisdiction over the marines and their claim to immunity therefrom. In these notes, when Italy asserts that it has jurisdiction over the “Enrica Lexie” and the marines, it is in fact saying that India has no jurisdiction because the marines are entitled to immunity; therefore, that assertion also relates to the issue of the immunity of the marines. Italy's main focus was to employ immunity as the most effective means to secure the release of the marines from Indian criminal jurisdiction. No doubt Italy had this concern because at that time the marines had been arrested and detained by the Indian authorities. The marines were granted bail subject to very severe conditions: they were required to surrender their passports; remain within “the territorial limits of the City Police Commissioner, Kochi”, except to attend Court in Kollam; “stay in a building within a distance of 10 kilometres from the office of the City Police Commissioner, Kochi”; and appear before the “City Police Commissioner, Kochi” every day between 10:00 and 11:00.
B. The Notification and Statement of Claim
13. In characterizing the dispute, the tribunal is required tro isolate the real issue dividing the parties and to determine the object of the claim. In seeking to identify the object of Italy's claim, although all relevant material must be examined, one would be forgiven for paying particular attention to Italy's Statement of Claim.
14. Italy's twinning of the exercise by India of criminal jurisdiction over the marines and the claim to immunity therefrom is very evident in the relief sought in Section VI of its Notification and Statement of Claim. It is noteworthy that immediately after requesting in paragraph 33(a) a declaration that India “is acting in breach of international law by asserting and exercising jurisdiction over the Enrica Lexie and the Italian Marines …”, Italy requests in the very next paragraph, 33(b), a declaration that “[t]he assertion and exercise of criminal jurisdiction by India is in violation of India's obligation to respect the immunity of the marines as State officials exercising official functions”. Therefore, paragraph 33(b) should be read as follows: that assertion of jurisdiction, meaning the assertion and exercise of jurisdiction referred to in paragraph 33(a), violates India's obligation to respect the immunity of the marines. By this juxtaposition of the exercise of Indian criminal jurisdiction in paragraph 33(a) and the claim in paragraph 33(b) that that exercise of criminal jurisdiction violates the immunity of the marines, Italy has specifically targeted immunity as the most effective means of terminating India's exercise of criminal jurisdiction over the marines. Significantly, Italy does not seek a specific declaration that India's exercise of its criminal jurisdiction over the marines violates its rights under Articles 92 and 97 of the Convention as the flag State of the “Enrica Lexie” or, indeed, under any other Article. Rather, in paragraphs 33(a) and 33(b) of its Notification and Statement of Claim, Italy centres its attention on the claim to the immunity of the marines as the most effective means of securing their release from Indian criminal jurisdiction. For that reason, it is inconsequential that, as argued by the Majority, immunity is “but one of several bases” on which Italy argues that India's exercise of its criminal jurisdiction over the marines breaches the Convention.Footnote 16 What is decisive is that of the “several bases”, it is immunity that Italy has selected in paragraphs 33(a) and 33(b) as the best means of securing the release of the marines from Indian criminal jurisdiction. It is the very specific relationship between the exercise of jurisdiction in paragraph 33(a) and the claim to immunity in paragraph 33(b) that is determinative in isolating the real issue dividing the Parties and determining the object of Italy's claim. That very specific relationship is therefore critically important in the characterization of the dispute.
15. Of course, one must not overlook Italy's request in paragraph 33(c) of its Notification and Statement of Claim for a declaration that it “has exclusive jurisdiction over the … Italian Marines in connection with the Enrica Lexie Incident”. But when that request is set against the background of the very specific request in paragraph 33(b) for a declaration that India's exercise of its criminal jurisdiction over the marines breaches their entitlement to immunity, it takes on the character of a claim that is incidental, reflecting Italy's confidence in its immunity claim.
16. It is entirely reasonable to seek an explanation for Italy's concentration on the entitlement of the marines to immunity in its Statement of Claim. As noted before, the explanation is that the stark reality facing Italy at the time of the filing of its Statement of Claim was that the marines had been arrested, detained, and granted bail subject to the very severe conditions set out in paragraph 12 of this Opinion. The object of Italy's claim was to use the marines’ claim to immunity as the most effective tool to terminate Indian criminal jurisdiction over them. Immunity is therefore a core element of the dispute dividing the Parties.
17. Not to be ignored is Italy's request in paragraph 33(d) for a declaration that “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”. Here, Italy has in mind the threshold link for a claim to immunity, which is achieved by the exercise of “any measure of restraint” by the forum State against officials of the foreign State. In other words, in seeking this declaration, Italy's real purpose is to argue that by virtue of the entitlement of the marines to immunity, India must not exercise “any form of jurisdiction”, “including any measure of restraint” against them. It is also telling that in paragraph 34 Italy “request[ed] the Tribunal to order India not to prosecute the criminal case against the Italian Marines and to terminate all legal proceedings connected to the Enrica Lexie Incident before the Indian Courts”. The rationale for this request is that since, on Italy's case, the marines are entitled to immunity from India's criminal jurisdiction, India is obliged to terminate the criminal case it has brought against them. Here again, Italy is emphasizing its argument that on the basis of the marines’ claim to immunity, India has no right to initiate or continue criminal proceedings against them and accordingly India is obliged to terminate those proceedings.
18. Notably, Italy's Statement of Claim is virtually wholly devoted to the use of the claim to immunity as the measure that would be most effective in extricating the marines from Indian criminal jurisdiction.
C. The Written and Oral Submissions of the Parties
19. A curious feature of this case is that the Majority citesFootnote 17 a passage from Italy's Memorial, which illustrates that the dispute is about the exercise by India of its criminal jurisdiction over the marines and their claim to immunity therefrom. As noted before, in paragraph 1.14 of its Memorial, Italy states that “reduced to its core, the dispute between the Parties is a dispute about jurisdiction and immunity from jurisdiction”. Nothing could be plainer: in Italy's view, the dispute has two core elements viz, first, the exercise by India of its criminal jurisdiction over the marines and, second, their claim to immunity therefrom; in this statement, Italy twins questions of jurisdiction and immunity as central and inseparable elements of the dispute.
20. The Majority relies on passages from Italy's Notification and Statement of Claim as well as its Memorial in which Italy only refers to the question of which party is entitled to exercise jurisdiction over the marines as constituting the dispute between the Parties. For example, the Majority cites the statement in paragraph 1.1 of Italy's Memorial that the dispute was about which State had jurisdiction over the M/V “Enrica Lexie” and the Italian marines. The Majority also citesFootnote 18 five other passages from Italy's pleadings to the same effect. For its own part, India did not describe the dispute in express terms in its Counter-Memorial. But in the oral proceedings, India submitted that “the core issue the real subject matter of the dispute is the question whether the marines are entitled to immunity from criminal proceedings arising out of the Enrica Lexie incident”.Footnote 19 The Arbitral Tribunal is therefore faced with a statement from Italy and one from India indicating their view that the dispute is about the exercise by India of its criminal jurisdiction over the marines and the marines’ claim to immunity therefrom, as well as statements from Italy that the dispute only concerns which State has jurisdiction over the marines and the Incident. Italy's position is therefore not consistent, as is argued by the Majority.Footnote 20 However, the Arbitral Tribunal is bound to look beyond the subjective description of the dispute by the Parties and apply the law relating to the identification and characterization of a dispute. The most important requirement in that exercise is the duty to determine on an objective basis the dispute between the parties by “isolate[ing] the real issue [dividing the parties] and identify[ing] the object of [Italy's] claim”.Footnote 21 The Arbitral Tribunal must therefore examine all the pertinent material at hand if it is to correctly isolate the real issue that is in dispute. In this case, there is, regrettably, a basis for concluding that rather than making an objective determination as to what constitutes the dispute, the Majority has attached too much weight to the subjective characterization of the dispute by Italy and too little to India's characterization of the dispute. For example, in the Section of the Award headed “Characterisation of the Dispute by the Arbitral Tribunal”, the Majority makes no mention of India's submission that “the core issue the real subject matter of the dispute is the question whether the marines are entitled to immunity from criminal proceedings arising out of the Enrica Lexie Incident”.Footnote 22
D. Inferences Drawn from the Conduct of a Party of Its Opposing View in a Dispute
21. The lament of the Majority that neither Party has characterized the dispute “as one primarily relating to immunity” is certainly puzzling; it overlooks many important aspects of the law relating to the identification of disputes; more specifically, it misses the point, well developed in case law, that the position of the parties may be inferred from their conduct.
22. In Land and Maritime Boundary between Cameroon and Nigeria, Footnote 23 it was argued by Cameroon that Nigeria had not made any explicit challenge to the whole of the boundary. However, the Court held that the position of the parties does not have to be stated “expressis verbis” and that a party's opposing view in a dispute could be inferred from conduct, “whatever the professed view of that party may be”.Footnote 24 In the case between Switzerland and NigeriaFootnote 25 before the ITLOS, it was argued by Switzerland that Nigeria did not respond to its position relating to the interception, arrest and detention of the vessel, “San Padre Pio”. However, ITLOS, holding that Nigeria's views could be inferred from conduct, stated that, “[t]he fact that the Nigerian authorities intercepted, arrested and detained the M/T “San Padre Pio” and commenced criminal proceedings against it and its crew members indicates that Nigeria holds a different position from Switzerland on the question whether the events that occurred on 22-23 January 2018 gave rise to the alleged breach of Nigeria's obligations under the Convention”.Footnote 26
23. In the instant case, not only have the Parties addressed the question of the immunity of the marines in their pleadings and the oral hearing as a core issue in the dispute, but their conduct also provides evidence as to the existence of a dispute, of which the question of immunity is a core element. The marines consistently claimed that they were immune from Indian criminal jurisdiction and India consistently rejected that claim by exercising jurisdiction over them both through their law enforcement personnel and their Judiciary. This refrain of claim and rejection provides testimony as to the centrality of the question of the immunity of the marines in the dispute between the Parties.
24. On 15 February 2012, the very day of the incident, the Kerala Police started investigating the complaint about the killing of the two Indian fishermen – this was an investigation into the crime of murder. On 16 February 2012, an Indian party of thirty-six police officers boarded the “Enrica Lexie”. The Coast Guard told the marines that the Incident came “under the jurisdiction of their territorial waters”.Footnote 27 Following a discussion between the Indian officials and the marines, Sergeant Latorre maintained that the VPD is “exclusively answerable to Italian Judicial Authorities” and that Italian authorities were investigating the incident.Footnote 28 Sergeant Latorre then gave the boarding party a written document which included the statement that “[u]nder International Law the detachment is afforded with judicial immunities as internationally recognised in respect of military forces in transit”. Nonetheless the Indian boarding party “‘formally detained’ the ‘Enrica Lexie’”Footnote 29 and continued to put “pressure … on the crew and master to furnish details of the weapons and surrender them”.Footnote 30 The Indian Ministry of External Affairs instructed Commandant [redacted] “to bar the ‘Enrica Lexie’ from leaving the Kochi anchorage and to bring the ship into port”.Footnote 31
25. This claim of immunity by the marines and its rejection by the Indian exercise of jurisdiction over them unmistakably shows that from the day after the incident, the question of immunity from India's criminal jurisdiction had become engaged as a central issue in the dispute between the Parties. From that time, properly analysed, every exercise of jurisdiction over the marines, whether by India's law enforcement personnel or its Judiciary, proceeds on the basis that the claim of immunity was rejected by India; and, in light of the formal nature of the claim of immunity by the marines on 16 February 2012, evidenced by its presentation in a written form, this conclusion applies even if the exercise of jurisdiction was not preceded by an explicit claim for immunity. This is a classic illustration of a dispute inferred from the conduct of Parties in the form of a claim by one Party and the demonstration by the other Party of its opposition through its conduct.
26. Set out below are illustrations of this phenomenon of India's exercise of criminal jurisdiction over the marines in the face of their claim to immunity from that jurisdiction, showing that the legal requirement of positive disagreement for the existence of a dispute has been met.
(i) On 16 February 2012, the Indian officials required the “Enrica Lexie” to enter the port of Kochi.Footnote 32
(ii) On 19 February 2012, the Indian police “disembarked Captain Vitelli for questioning” and the Indian mercantile marine department boarded the vessel to commence investigations.Footnote 33
(iii) On the same day, “the Kerala police escorted the Marines from the ‘Enrica Lexie’ and arrested them … ‘on an allegation of murder’.”Footnote 34
(iv) On 20 February 2012, the “Enrica Lexie”, obviously on the instruction of the Indian Coast Guard, moved from Kochi oil terminal to another position in Indian internal waters, with fifteen Indian policemen remaining on board.Footnote 35
(v) On 1 March 2012, the marines challenged their detention before the “Chief Judicial Magistrate in Kollam on grounds of safety concerns and their immunity …” and on 5 March 2012 “the Chief Judicial Magistrate ordered that the marines be transferred to ‘judicial custody’ in the central prison …”.Footnote 36
(vi) On 2 May 2012, the Supreme Court ordered that the Government of Kerala and its authorities shall allow the “Enrica Lexie” to commence her voyage.Footnote 37
(vii) On 9 May 2012, the Supreme Court gave leave for the marines to apply for bail and the bail application was rejected by the Chief Judicial Magistrate in Kollam on 11 May 2012.Footnote 38
(viii) On 18 May 2012, the Kerala Police concluded their investigation and filed a “Final Report” (or “Charge Sheet”) against the marines, referring to the crime of murder.Footnote 39
(ix) On 19 May 2012, the Court of the Sessions Judge, Kollam, rejected another bail application by the marines.Footnote 40
(x) The marines were detained in custody until 30 May 2012, when they were granted bail by the High Court of Kerala subject to certain conditions.Footnote 41
(xi) On 18 January 2013, the Supreme Court found that the Union of India had jurisdiction over the marines.Footnote 42
(xii) On 22 February 2012, Italy and the marines filed Petition 4242 in the High Court of Kerala. They contended that India did not have jurisdiction, Italy had exclusive jurisdiction “and that in any event, under international law, the marines had immunity from Indian criminal jurisdiction”.Footnote 43 On 29 May 2012, the High Court of Kerala dismissed the Writ Petition, finding that India and the Kerala authorities had jurisdiction, and in what can only be described as a blunt rejection of immunity, the Court stated that the Incident “can be treated only as a case of brutal murder and can in no way be masqueraded as a discharge of the sovereign function”.Footnote 44
27. There are many other examples of the centrality of the issue of immunity from the exercise by India of its criminal jurisdiction in the disagreement between the Parties that is reflected in the rejection by India's law enforcement authorities and Judiciary of the claim to immunity from that jurisdiction. It is difficult to understand how in light of that overwhelming evidence the Majority can maintain that the dispute between the Parties did not encompass the question of the marines’ claim to immunity from Indian jurisdiction. The Indian rejection of the claim of immunity through the exercise by its law enforcement personnel and Judiciary of criminal jurisdiction over the marines is a concrete and graphic reflection of the core elements of the dispute between the Parties.
28. It is also difficult to understand why the Majority makes so much of the lack of a reference to the question of immunity in the section of India's Counter-Memorial entitled, “What the Case is really about: The Killing of Its Nationals on the St. Antony”. Here, India as the aggrieved Party, whose nationals have been killed, understandably focuses on that horrific incident. There was no need for India to include in that section of its Counter-Memorial any reference to questions of immunity, because its conduct, as discussed in this Section of the Opinion, unambiguously showed that by its exercise of jurisdiction over the marines, it rejected their claims of immunity. Here again, the Arbitral Tribunal should be seeking to isolate on an objective basis the real issue dividing the Parties and to identify the object of Italy's claim. In that regard, it is of no consequence that India did not refer to the question of immunity in the section of its Counter-Memorial cited above. The Majority's reasoning is scarcely persuasive.
E. Conclusion
29. In light of the inconsistency in Italy's position on the identification of the dispute and the opposing views of India on that subject, there is a heightened obligation on the Arbitral Tribunal to examine all the pertinent evidence so as to isolate on an objective basis the real issue and identify the object of Italy's claim. An examination of this evidence shows that the issue of the immunity of the marines is a core element of the dispute, which is characterized as the question of the exercise by India of its criminal jurisdiction over the marines in the face of their claim to immunity therefrom.
III. THE ARBITRAL TRIBUNAL DOES NOT HAVE JURISDICTION OVER THE ISSUE OF THE IMMUNITY OF THE MARINES
30. The significance of a jurisdictional clause such as Article 288, paragraph 1, of the Convention is that it demarcates the boundaries of a court's or tribunal's jurisdiction over a dispute. By conferring on a court or a tribunal jurisdiction over a dispute concerning the interpretation or application of a treaty, a jurisdictional clause reflects the limits of a State's consent to a court or tribunal's jurisdiction over that dispute. Consequently, if the question of the immunity of the marines does not concern the interpretation or application of the Convention, it would be a breach of India's consent to the jurisdiction of the Arbitral Tribunal for it to pronounce on that question. In other words, the Arbitral Tribunal would have no jurisdiction to determine that question.
31. The Majority devoted five paragraphsFootnote 45 to consider whether it had jurisdiction over the issue of the immunity of the marines. Although there is no provision in the Convention that expressly refers to the kind of immunity claimed by the marines, Italy argued that the references to “other rules of international law” in Article 2, paragraph 3, of the Convention, “the rights and duties of other States” in Article 56, paragraph 2, of the Convention, and “other pertinent rules of international law” in Article 58, paragraph 2, of the Convention, “import immunity by renvoi”;Footnote 46 therefore, Italy maintains that the issue of the immunity of the marines concerns the interpretation and application of the Convention. The Majority concluded that these Articles were “not pertinent and applicable in the present case”Footnote 47 because, while they apply to the territorial sea and the exclusive economic zone, India only enforced its jurisdiction in its internal waters and on land. Italy also argued that the reference in Article 297, paragraph 1, subparagraph (a), of the Convention to “other rules of international law not incompatible with this Convention” was a renvoi to general international law. The Arbitral Tribunal found that this Article “does not pertain to the exercise of freedoms, rights and uses of the sea ‘in contravention of … the laws and regulations adopted by the coastal State in conformity with this Convention and other rules of international law not incompatible with this Convention’.”Footnote 48 Thus, the Majority did not conduct any enquiry, and therefore did not make any finding, as to whether customary international law was imported into the Convention on the basis of the Articles relied on by Italy. As a matter of law, those Articles do not constitute a renvoi to customary international law. The ICJ's decision in Immunities and Criminal Proceedings, discussed in paragraph 36 of this Opinion, supports that conclusion. Moreover, India was right in its submission that while the Articles may be relied on for the purpose of interpreting the relevant provisions of the Convention, they cannot be used as a basis for ascertaining whether the Arbitral Tribunal has jurisdiction over the issue of the immunity of the marines.Footnote 49 In other words, the Articles are relevant as part of the applicable law, but they have no relevance for jurisdictional purposes.
32. The Arbitral Tribunal correctly decided that Articles 95 and 96 of the Convention devoted to warships and ships used for government non-commercial service were “not applicable to Italy's claim”.Footnote 50
33. Not having examined and determined whether the Convention “provide[s] a basis for entertaining an independent immunity claim under general international law”, the Majority is not in a position to conclude that “the Convention may not provide [such] a basis”. The failure of the Majority to carry out such an examination and arrive at a conclusion based on it explains the hesitancy and uncertainty in its finding that “while the Convention may not provide a basis for entertaining an independent immunity claim under general international law, the Arbitral Tribunal's competence extends to the determination of the issue of the immunity of the Marines that necessarily arises as an incidental question in the application of the Convention”.Footnote 51 The speculation that is all too evident in that conclusion provides the basis for the Majority's sortie into the murky waters of the law on incidental questions.
34. There is another troubling aspect of the Majority's finding.Footnote 52 The Majority speaks of “an independent immunity claim under general international law”. But independent of what? Not of jurisdiction, since immunity, as we are reminded in the Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal in the Arrest Warrant case, is but a “common short-hand phrase for immunity from jurisdiction”.Footnote 53 A claim to immunity is therefore, definitionally incapable of being independent. It will always relate to jurisdiction (and in some cases to enforcement). In this case, the immunity claimed is immunity from the exercise by India of its criminal jurisdiction over the marines.
35. It is important for the position taken in this Opinion to establish that the Arbitral Tribunal has no jurisdiction to address the issue of the immunity of the marines, because that issue does not concern the interpretation or application of the Convention. The uncertain and hesitant manner in which this matter has been addressed by the Majority is wholly inappropriate.
36. The ICJ's recent decision on immunity in Immunities and Criminal Proceedings Footnote 54 is instructive. The Arbitral Tribunal is, of course, not bound by that decision, but the approach taken by the Court is persuasive. Essentially, the Court had to determine whether the issue of immunity arose under the United Nations Convention against Transnational Organized Crime. The Court found that, even though Article 4 of that Convention obliged States Parties to discharge their obligations under that Convention in a manner consistent with the principle of sovereign equality, the reference to that principle was not a renvoi to immunity under general international law. It made that finding even though it is generally accepted that the principle of sovereign equality of States provides the jurisprudential foundation for the law of State immunity. Indeed the Court itself recalled that “… the rules of State immunity derive from the principle of sovereign equality of States”.Footnote 55 In Al-Adsani the European Court of Human Rights held that “sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State shall not be subject to the jurisdiction of another State”.Footnote 56 The ILC's Special Rapporteur on Immunity of State Officials from Foreign Criminal Jurisdiction also emphasized that the basis for the immunity of States, reflected in the Latin tag, par in parem non habet imperium, is the principle of sovereign equality of States. Despite this well-established connection between the law of immunity and the principle of the sovereign equality of States, the Court nonetheless held that Article 4 “[did] not refer to the customary international law rules, [on] State immunity that derive from the principle of the sovereign equality [of States]”.Footnote 57 Similarly, in this case the Articles relied on by Italy do not refer to the customary international law rules of immunity of State officials.
37. This approach to determining the Court's jurisdiction is deferential to, and protective of, the limits of a State party's consent to jurisdiction in a compromissory clause conferring on the Court jurisdiction over a dispute concerning the interpretation or application of a treaty. In this case, the Majority has not been deferential to and protective of the limits of India's consent to the Arbitral Tribunal's jurisdiction over the dispute.
38. Although the Majority correctly concludes that Articles 95 and 96 of the Convention “are not applicable to Italy's claim”, these two articles have another significance that the Majority has failed to emphasize. There is a strong a contrario inference to be drawn from the fact that the only provisions in the Convention on immunity do not relate to the kind of immunity claimed by the marines: the inference is that the drafters of the Convention did not intend that the Convention should apply to types of immunity other than the complete immunity in respect of warships and ships used only on government non-commercial service. Those other types of immunity would include immunities for State officials like the marines. The inference is particularly strong because the provisions of Articles 95 and 96 of the Convention were included verbatim in Articles 8 and 9 of the 1958 Convention on the High Seas. The drafters of UNCLOS III therefore had ample time in the Convention's negotiating history of eight years to modify those provisions, if they so wished, to include the immunities of State officials. The failure to do so strengthens the inference that the clear intention of the drafters was to exclude those qualified and functional immunities from coverage by the Convention. Therefore, it is not merely that, as stated by the Majority “these two Articles are not applicable to Italy's claim”;Footnote 58 rather, it is that the provisions of Articles 95 and 96 of the Convention give rise to an irresistible a contrario inference that the Convention does not cover the kind of immunities claimed by the marines.
39. As has been shown in Part I, the issue of immunity of the marines is a core element of the dispute dividing the Parties. A core element of a dispute cannot at the same time be an incidental question in relation to that dispute.
40. The Majority's reasoning appears to be that the issue of the immunity of the marines is incidental because “the Arbitral Tribunal could not provide a complete answer to the question as to which Party may exercise jurisdiction without incidentally examining whether the Marines enjoy immunity”.Footnote 59 Although this appears to be the reasoning, it is noticeable that nowhere in the Award does the Majority attempt to identify the characteristics of an incidental question. Incidentally, it is not the examination of the issue of the immunity of the marines that is claimed to be incidental; rather, it is that issue itself that is claimed to be incidental.
41. There is no main issue in this case; there is no incidental issue in this case. Rather, there is one issue: the question of the Indian exercise of criminal jurisdiction over the marines in the face of their claim to immunity therefrom. Immunity is central, and not incidental, to the dispute between the Parties. If the Majority is right that the dispute, as characterized by it, cannot be resolved without examining the issue of the immunity of the marines, then that would suggest that that issue is anything but an incidental question;Footnote 60 it would also flatly contradict the Majority's theory in paragraph 235 of the Award that on Italy's claim, the dispute could be resolved without determining the issue of the immunity of the marines.
A. The Law Relating To Incidental Questions
42. Even if the immunity of the marines from the exercise of Indian jurisdiction is an incidental question, quod non, the Majority has misdirected itself as to the applicable law.
43. Generally, the four cases that will be examined below demonstrate that a determination as to whether a question is incidental calls for a proper characterization of the dispute dividing the Parties and a careful separation of a question that is incidental from the real issue in the dispute. A subset of the analysis of the law on incidental questions in the cases relating to the Convention is that the need to ensure that the question is indeed incidental becomes more urgent because the Convention is the result of a package deal, and conferring jurisdiction on a court or tribunal over a question that does not fall within the provisions of the Convention may disturb the balance in the compromise solutions that were reached in the negotiations that led to its adoption. This is particularly the case in relation to the exceptional regime for the compulsory settlement of disputes under Part XV of the Convention.
44. The first case is the Case Concerning Certain German Interests.Footnote 61 The Majority relies on this case. In that case, Germany brought a claim against Poland under Article 23 of the Geneva Convention, which conferred jurisdiction on the PCIJ over differences of opinion respecting the construction and application of Articles 6 to 23 of that Convention. Article 6 prohibited Poland from expropriating property of German nationals in Polish Upper Silesia. Germany argued that Poland had contravened Article 6 by expropriating the factory of a German national. Poland responded that the national did not own the nitrate factory because it had been transferred to him in violation of Article 256 of the Treaty of Versailles, which provided that: “Powers to which German territory is ceded shall acquire all property … situated therein belonging to the German Empire …”. The PCIJ had to determine whether it had the competence to interpret Article 256 of the Treaty of Versailles, over which it had no jurisdiction. The Court held that:
It is true that the application of the Geneva Convention is hardly possible without giving an interpretation of Article 256 of the Treaty of Versailles and the other international stipulations cited by Poland. But these matters then constitute merely questions preliminary or incidental to the application of the Geneva Convention. Now the interpretation of other international agreements is indisputably within the competence of the Court if such interpretation must be regarded as incidental to a decision on a point in regard to which it has jurisdiction.
45. Three comments are in order. First, although this case has been cited by the Majority as setting out the law on incidental questions, it is noteworthy that the PCIJ confined its findings to the interpretation of Article 256 of the Treaty of Versailles, and even when the Court spoke more generally, it also confined its analysis to the interpretation of other treaties when “such interpretation must be regarded as incidental to a decision on a point in regard to which it had jurisdiction”.Footnote 62 The PCIJ appeared to have focused more on the interpretation rather than the application of the Treaty of Versailles. It is not uncommon for courts and tribunals to interpret treaties other than the one over which they have jurisdiction in discharging their judicial function. Second, the analysis in the case suggests that an incidental question is one over which a court or tribunal does not have jurisdiction, but the determination of which is necessary for the resolution of the dispute concerning the interpretation or application of the Convention. The Court held that the application of the Geneva Convention was “hardly possible” without interpreting Article 256 of the Treaty of Versailles. Thus, the word “incidental” does not bear its ordinary dictionary meaning of a minor accompaniment – an accompaniment, yes, but certainly not a minor one. Although in the first part of the quotation the Court speaks of “preliminary or incidental” questions, in its conclusion in the last sentence it only refers to an interpretation that is incidental. An incidental question is not necessarily a preliminary question nor is a preliminary question necessarily an incidental question. However, the PCIJ appears to have used the terms interchangeably, although settling on incidental in its conclusion. In terms of the facts of the case, the question raised by Article 256 of the Versailles Convention would seem to be better described as preliminary or ancillary. Third, there is noticeably absent from the PCIJ's decision in this case any significant examination of the relationship between the incidental question over which the Court had no jurisdiction and the dispute over which it had jurisdiction; in particular, there is no discussion as to whether the incidental question was the real issue dividing the Parties; if it warranted that description, the Court would have had no jurisdiction over it since it did not relate to the interpretation or application of the Geneva Convention. The later cases show that since a court or tribunal would normally not have jurisdiction over the incidental question, it is of the greatest importance to ensure that the question is properly characterized as incidental.
46. The second case is Chagos Marine Protected Area Arbitration.Footnote 63 It has not been cited by the Majority in its characterization of the dispute. In that case, Mauritius submitted, inter alia, that the United Kingdom was not entitled to declare a marine protected area around the Chagos Archipelago because it was not the coastal State within the meaning of Articles 2, 55, 56, and 76 of the Convention. The tribunal made three important pronouncements. In the first, it held that “as a general matter, the Tribunal concludes that, where a dispute concerns the interpretation or application of the Convention, the jurisdiction of a Court or Tribunal pursuant to Article 288(1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the dispute presented to it”.Footnote 64 That finding is consistent with the reasoning in the PCIJ case of Case Concerning Certain German Interests. In the second pronouncement, it held that “[w]here the ‘real issue in the case’ and the ‘object of the claim’ … do not relate to the interpretation or application of the Convention, however, an incidental connection between the dispute and some matter regulated by the Convention is insufficient to bring the dispute, as a whole, within the ambit of Article 288(1)”.Footnote 65 In the third, it held that “[t]he Tribunal does not categorically exclude that in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention”.Footnote 66 Although these pronouncements provide a valuable insight into the characteristics of an incidental question, they are arguably obiter dicta, since the ratio of the case was that the real issue dividing the parties was a question of land sovereignty which did not fall within the provisions of the Convention, and over which therefore, the tribunal had no jurisdiction. Thus, the land sovereignty issue, far from being an incidental question, was the real issue dividing the parties. The tribunal declined jurisdiction for that reason. It also stressed the importance of the proper characterization of an issue as an incidental question. In relation to Mauritius’ argument that Article 298, paragraph 1, subparagraph (a) (i), of the Convention could be read a contrario, the tribunal concluded that “… [a]t most, an a contrario reading of the provision supports the proposition that an issue of land sovereignty might be within the jurisdiction of a Part XV Court or Tribunal if it were genuinely ancillary to a dispute over a maritime boundary or a claim of historic title”.Footnote 67 Here, the tribunal was emphasizing the importance of not confusing an incidental question with the real issue dividing the parties.
47. The Chagos tribunal made another finding that is pertinent to the instant case. It held that reading Article 298, paragraph 1, subparagraph (a)(i), of the Convention as conferring jurisdiction over issues of land sovereignty “would do violence to the intent of the drafters of the Convention to craft a balanced text and to respect the manifest sensitivity of States to compulsory settlement of disputes relating to sovereign rights and maritime territory”.Footnote 68 In Chagos Marine Protected Area Arbitration, the Annex VII tribunal exhibited appropriate sensitivity to the negotiation of the Convention as a package deal on the basis of which a balanced text was achieved. It declined jurisdiction because territorial sovereignty did not fall within the provisions of the Convention. The Majority should have exhibited the same sensitivity to the question of the immunity of the marines which, like matters of land sovereignty, is the real issue in dispute and does not fall within the provisions of the Convention.
48. The third case, the South China Sea Arbitration, is cited by the Majority. In this case, which involved issues of maritime entitlements and activities in the South China sea, one of the questions was whether the dispute concerned sovereignty over certain maritime features and was therefore not a matter concerning the interpretation or application of UNCLOS. The arbitral tribunal had to determine whether deciding the Philippines’ claim would have required it first to give a decision explicitly or implicitly on the issue of sovereignty and whether the true objective of the claim by the Philippines was to advance its position in the dispute between the parties on sovereignty.Footnote 69 The arbitral tribunal determined both issues in the negative because it was of the view that the Philippines’ claim did not expressly or impliedly require it to rule on issues of land sovereignty.Footnote 70 In another issue, the tribunal, considering a submission of the Philippines, held that it had jurisdiction, but made it clear that, had the tribunal found that a certain maritime feature claimed by China within 200 nautical miles of the relevant areas was an island and therefore able to generate an entitlement to an exclusive economic zone and continental shelf, the tribunal would have had to decline jurisdiction over the dispute.Footnote 71
49. The fourth decision on incidental questions is the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. The Russian Federation) (hereinafter “Ukraine v. Russia”).Footnote 72 This case was not cited by the Majority. Ukraine made certain claims against Russia, which argued that the tribunal had no jurisdiction over the claims because the dispute between the parties related to Ukraine's claim to sovereignty over Crimea and that such a dispute did not concern the interpretation or application of the Convention. In upholding the Russian submission, the tribunal reasoned that there was a dispute concerning territorial sovereignty over Crimea, which was not, as argued by Ukraine, ancillary to the dispute concerning the interpretation or application of the Convention. In particular, the tribunal held that the dispute concerning sovereignty over Crimea was not a minor issue ancillary to the dispute concerning the interpretation or application of the Convention; rather, it was a prerequisite to the decision on a number of claims made by Ukraine. The tribunal therefore ruled that the question of land sovereignty over Crimea was the real issue in dispute and that it had no jurisdiction because that issue did not concern the interpretation or application of the Convention.Footnote 73
B. Conclusion
50. The Majority's baseless conclusion – “while the Convention may not provide a basis for entertaining an independent immunity claim under general international law, the Arbitral Tribunal's competence extends to the determination of the issue of immunity of the marines that necessarily arises as an incidental question in the application of the Convention” – is an error of law that invalidates the subsequent decisions that are founded on it. These decisions are the conclusion that the Arbitral Tribunal has jurisdiction over the issue of the immunity of the marines as an incidental question, the examination of the immunity ratione materiae of the marines under customary international law, and the conclusion that the marines are entitled to immunity in relation to the acts they committed during the incident of 15 February 2012. Had the Majority enquired and determined whether any Article in the Convention imported the customary rules on immunity by way of renvoi, it would have found that there was no renvoi to customary international law; consequently, the issue of the immunity of the marines did not concern the interpretation or application of the Convention. Since that issue is a core element of the dispute, the Arbitral Tribunal was obliged to decline jurisdiction over the dispute, in which event the examination of the issue of the immunity of the marines as an incidental question would not have arisen.
51. In any event, the Majority misdirected itself as to the law on incidental questions: the issue of the immunity of the marines is not an incidental question.
52. There is a major difference between the Case Concerning Certain German Interests of 1925 and the three later cases, which all dealt with the issue of sovereignty as an incidental question under the Convention. In the 1925 case, the PCIJ decided that its competence extended to the issue raised in Article 256 of the Treaty of Versailles, over which it had no jurisdiction, on the ground that the determination of that issue was necessary for the resolution of the dispute under the Geneva Convention, over which it had jurisdiction. However, in the three later cases, all under Part XV of UNCLOS, the Annex VII tribunals went beyond the approach adopted by the PCIJ, for whom the only criterion for competence over an incidental question was that that question was necessary for the resolution of the dispute. The Annex VII tribunals did not simply decide that sovereignty was an incidental question, the determination of which was necessary for a resolution of the various disputes, and then conclude that their jurisdiction extended to that question. Rather, the approach adopted by the tribunals was to objectively isolate the real issue dividing the parties, ascertain the relationship of the incidental question to that issue and exhibit appropriate sensitivity to the balance reflected in the compulsory dispute settlement regime in Part XV. Today, a tribunal deciding the 1925 Case Concerning Certain German Interests would at least have considered whether the issue raised by Article 256 of the Treaty of Versailles was the real issue dividing the parties; an affirmative answer to that question would oblige the tribunal – as it did the Annex VII tribunals in the Chagos case and the case between Ukraine and Russia – to decline jurisdiction over the case on the ground that the dispute, of which the issue in Article 256 of the Treaty of Versailles was a core element, did not relate to the interpretation or application of the Geneva Convention. The 1925 Case Concerning Certain German Interests therefore offers little help in determining whether this Arbitral Tribunal has jurisdiction over the issue of the immunity of the marines as an incidental question under the Convention. It can only offer guidance if it is read subject to the three later cases. The premise on which the doctrine of the incidental question, as reflected in the 1925 case operates, is not applicable to the instant case: the parties impliedly consent to the tribunal extending its jurisdiction over the incidental question (over which it has no jurisdiction) because it is necessary for the determination of the dispute (over which it has jurisdiction); the premise does not apply because in the instant case, the Parties cannot be said to have impliedly consented to the extension of the Arbitral Tribunal's jurisdiction over the so-called incidental question, because it is in fact the real issue in dispute and therefore the Arbitral Tribunal has no jurisdiction since that issue, which is outside the Convention, does not concern its interpretation or application.
53. The various Annex VII tribunals’ treatment of the issue of sovereignty as an incidental question shows that it is vital to have a proper characterization of the dispute in order to determine whether a so-called “incidental question” is genuinely ancillary to the dispute over which the tribunal has jurisdiction. In this case, there is a dispute about the issue of the immunity of the marines. That dispute is not ancillary to the dispute between the Parties concerning the exercise by India of criminal jurisdiction over the marines. It is, to use the language in Chagos Marine Protected Area Arbitration, “the real issue” dividing the parties, or to use the language in Ukraine v. Russia, at the “heart of …” Footnote 74 or, at the “front and centre”Footnote 75 of that dispute.
54. The issue of the immunity of the marines does not fall within the provisions of the Convention, as such, it does not concern the interpretation or application of the Convention; therefore, the Arbitral Tribunal has no jurisdiction over that issue which, so far from being an incidental question, is a core element of the dispute between the Parties. Consequently, the Arbitral Tribunal was obliged to decline jurisdiction over the dispute.
IV. ASSUMING THAT THE ARBITRAL TRIBUNAL HAS JURISDICTION OVER THE ISSUE OF IMMUNITY OF THE MARINES FROM THE EXERCISE OF INDIAN CRIMINAL JURISDICTION, DO THE MARINES ENJOY IMMUNITY RATIONE MATERIAE?
55. The Opinion now proceeds to consider the immunity ratione materiae of the marines, but in light of the Opinion's conclusions in Parts I and II, it does so only in the interest of completeness.
A. The State of the Law on Immunity
56. While some aspects of the law on immunity, whether of States and their property or of State officials, are fairly well established as reflecting customary international law, there remain areas that do not have that status. In 2004, the United Nations adopted the United Nations Convention on Jurisdictional Immunities of States and their Property. Sixteen years afterwards, that Convention has only received twenty two of the thirty ratifications required for entry into force, although it must be acknowledged that some of its provisions, and, indeed, the Convention itself, are seen as reflecting customary international law.Footnote 76 While Italy has ratified the Convention, India has signed but not ratified it.
57. The ILC has been working for thirteen years on draft Articles on the Immunity of State officials from foreign criminal jurisdiction. The law on this topic is not as clear-cut as the Majority makes out in its reference to the Commission's “uncontroversial premise” that “the acts of State officials performed in an official capacity are subject to immunity”.Footnote 77 Indeed, one State, Poland,Footnote 78 in commenting on the Report of the International Law Commission at its Sixty Seventh Session (2015), concluded that the question of the immunity of State officials was not regulated by general international law and that the entire matter was “… not so much the subject of codification, [but was one of] … ‘the progressive development of international law’.”Footnote 79
58. The aspect of the law on immunities that has the greatest level of certainty as a customary rule is that the troika – the Head of State, Head of Government, and Minister of Foreign Affairs – enjoys full personal immunity; for all else, there is either a lower degree of certainty or no certainty.
59. The approach that the Majority has taken in its analysis is traditional: the marines are State officials and therefore enjoy immunity under customary international law because they acted in an official capacity. In that regard, the Majority relies on the draft articles of the International Law Commission on Immunity of State Officials from Foreign Criminal Jurisdiction. However, the novel context in which the claim to immunity arises in this case calls for a different approach.
60. This is far from being the usual case where the acts of an official and a determination as to whether they were carried out in an official capacity are the only considerations. Rather, this is a case in which the acts of the State also influence the determination whether the marines enjoy immunity ratione materiae. The immunity of a State official is in large measure a reflection of the immunity of the State, and “the functional immunity of (former) foreign State official is often approached as a corollary of the rule of State immunity”.Footnote 80 There are many dicta to that effect. Thus in Certain Questions of Mutual Assistance in Criminal Matters, the ICJ, referring to a reformulated claim of Djibouti in respect of the Procureur of the Republic and Head of National Security, held that “such a claim is in essence a claim of immunity for the Djiboutian State, from which the Procureur de la République … would be said to benefit”.Footnote 81 In Propend Finance Limited v. Sing, the United Kingdom Court of Appeal held that “the protection afforded by the [State Immunity Act] to States would be undermined if employees, officers or … ‘functionaries’ could be sued as individuals for matters of State conduct in respect of which the State they were serving had immunity. [The relevant provision of the SIA] must be read as affording individual employees or officials of a foreign State protection under the same cloak as protects the State itself”.Footnote 82 The ‘cloak’ imagery is very apt. The foreign State official wears the same cloak of immunity as the cloak of immunity worn by his State; the foreign State official ‘benefits’ from the protection offered by the cloak of immunity of his State. Therefore, if for some reason the State has no immunity, then it has no cloak of immunity to provide protection to its official.
61. The underlined dicta of the ICJ and the United Kingdom Court of Appeal in the previous paragraph reflect the correspondence between the immunity of a State official and the immunity of the State itself for an act carried out by its official. Thus, the immunity of a State official in general proceeds on the basis that the State itself enjoys immunity in respect of the acts of its officials. If the State does not enjoy immunity in respect of that conduct, it is difficult to see how the official could, since the State is the fountainhead of the immunity of its official.
62. The law on State immunity changed about one hundred years ago from the doctrine of absolute immunity for all acts, enunciated by Marshall CJ in Schooner Exchange v. McFadden,Footnote 83 to a doctrine of restrictive or qualified immunity in respect of sovereign acts. There is no longer immunity for State acts of a commercial character. The majority of States follow the restrictive approach, which can be said to reflect customary international law.Footnote 84 The law calls for a determination as to whether an act is jure imperii or jure gestionis; the former act, being sovereign, attracts immunity while the latter, being commercial, does not. In distinguishing between the two acts, the law, as is evident from the practice of the majority of States, calls for an identification of the nature of the act or transaction, and not its purpose. The preponderance of authorities supports the use of the criterion of the nature of the act rather than its purpose or motive to distinguish between an act jure imperii and an act jure gestionis. Article 2, paragraph 2, of United Nations Convention on Jurisdictional Immunities of States and their Property provides that the nature of the contract or transaction primarily determines whether it has a commercial character. However, it provides that the purpose of the contract or transaction may be taken into account if the parties so agree or if in the practice of the State of the forum it is relevant. In 2001, Italy informed the ILC that “Italy considers the ‘nature test’ to be in principle the sole criterion for determining the commercial character of a contract or transaction”;Footnote 85 in its Counter-Memorial in the Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Italy stated that in Belgium and Italy, “the distinction between private and public acts has since the beginning been established on the basis of the nature of the act and not its purpose”.Footnote 86 The nature test is, therefore, opposable to Italy. The relevant law of the United States provides “[t]the commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose”.Footnote 87 In a case cited by Italy and the Majority, Airport llc v. United States, Footnote 88 the Supreme Court of Austria held that “international practice no longer refers to the object or purpose of a State's act (functional approach) but to the nature of the act itself (irrespective of the object or purpose)” (paragraph 3). The reason for the use of the criterion of the nature of the activity and not its motive or purpose is fairly obvious: the criterion of purpose serves to render almost pointless the distinction between commercial and sovereign acts, since once the government of a State is involved in a transaction, it is almost inevitable that one will be able to detect some kind of sovereign, governmental purpose in that transaction. Therefore, in determining whether the transaction carried out by the Government of Italy with the shipowners was commercial or sovereign, the fact that its purpose was the protection of Italian vessels on the High Seas is not decisive. What is decisive is the nature of the transaction, not its purpose.
63. The following factors demonstrate the essentially commercial nature of the transaction that led to the marines being placed on the vessel to provide their services; they show that the public purpose of the transaction was completely engulfed by its essentially commercial nature:
(i) To begin with, it is to be noted that Article 5 of the Law Decree of 12 July 2011 enables the Ministry of Defence of Italy to enter into framework agreements with shipowners for the protection of ships flying the Italian flag. It is also significant that in order for a shipowner to benefit from the protection of its vessel through the emplacement of marines on the vessel, the shipowner was obliged to make a specific application for the services of the marines. Those services were only provided to the shipowners who applied and were prepared to accept the onerous obligations imposed by Italy for its provision of the services of the marines. There was therefore, a very peculiar, direct and specific contractual relationship between the Italian Government and the shipowners of the “Enrica Lexie”.
(ii) On 11 October 2011, the Ministry of Defence of Italy and the shipowners concluded a Memorandum of Understanding. Its preambular paragraph indicates that the purpose of its adoption was the supply of services to shipowners. On the same day, 11 October 2011, there was also concluded an Agreement between the Ministry of Defence of Italy and the shipowners intending to avail themselves of the services of the marines. Article 2.1 provides that there is available to applicant shipowners the services of the marines for protection of vessels from piracy and armed robbery. The Article also refers to “service supply” in the form of VPDs “made up of armed military personnel equipped with individual and team weapons”. It is therefore clear that the transaction between the Government of Italy through its Ministry of Defence and the shipowners was carried out on the basis of what in many jurisdictions would be an ordinary contract for services. This is a commercial transaction, that is, an act jure gestionis, not attracting immunity. The fact that the contract between the Government of Italy and the shipowners had an ostensibly public purpose of providing protection for vessels from piracy is irrelevant in determining whether it had the character of a commercial or sovereign transaction. What is decisive is the essentially commercial nature of the Agreement between the Government of Italy and the shipowners. For that reason, a contract between a government and a private entity to purchase equipment for its armed forces is a transaction jure gestionis that would not attract immunity.
(iii) The essence of a commercial transaction is the exchange of goods and services between persons or entities. That element of exchange is very strong in the Agreement between the Ministry of Defence and the shipowners. Essentially, under the Agreement, the Ministry of Defence undertakes to supply the services of the VPDs in exchange for commitments on the part of the shipowner set out in Article 2.2. This subparagraph identifies seven commitments on the part of the shipowners. Any one would suffice to illustrate the commercial character of the transaction between the Ministry of Defence and the shipowners. All of them are characteristic of the give and take or quid pro quo that are at the heart of a commercial transaction. But two provisions are particularly striking in that they indicate the extent to which the Government of Italy went to protect itself. First, subparagraph (c) of Article 2.2 obliges the shipowner to maintain suitable insurance contracts for third party liability, more specifically in relation to damage incurred by the VPDs for fault-based liability of the shipowner or his subordinates. It would not have been unreasonable to expect the Government of Italy to take out insurance contracts for the marines who, after all, are on the vessels in the service of their country. Nonetheless, the Italian Government was able to secure an Agreement in which the shipowner bears the burden of entering into insurance contracts for third party liability in respect of damage from acts carried out by the VPDs. This is by no means an inconsequential commitment. The shipowner would incur the expense for insurance in respect of a VPD which consists of at least six persons. Second, subparagraph (d) of Article 2.2 obliges the shipowner to waive compensation claims for contractual liabilities incurred by the shipowner due to a deviation from the trade course to allow the embarkation and disembarkation of VPDs, as well as detention and disembarkation requirements as regards individuals possibly arrested or subject to provisional arrest. Both subparagraphs (c) and (d) are the kind of provisions one finds in a commercial transaction between two private persons, one of whom is bent on protecting himself/herself, and who has the negotiating strength to do so. The risk of damage resulting from acts of the VPDs has been placed on the shipowners in a manner that almost suggests that the VPDs have become employees of the shipowner. In any event, the entire set of commitments in Article 2.2, in particular subparagraphs (c) and (d), highlight the extent to which the Government of Italy went to ensure that, if something went amiss in the performance by the VPDs of their functions, it would be protected. The shipowners undoubtedly paid a significant price for the services of the VPDs provided by the Government of Italy. There is, of course, nothing wrong with that, but it needs to be acknowledged that the transaction that led to the marines being placed on the “Enrica Lexie” was an essentially commercial one.
(iv) However, the most striking feature of the transaction illustrating the element of the exchange of goods and services that characterizes a commercial transaction is Article 6 of the Agreement. Under that Article, the shipowner is obliged to “repay costs incurred for the employment of the VPD”. These costs are set out in Article 2 of the Addendum to the Agreement, which shows that for a total amount for daily service onboard, the shipowner must pay the sum of 467 euros to repay the costs linked to the employment of the VPDs. Three comments may be made. First, the sum of 467 euros per person per day amounts to 14,010 euros for 30 days of service, 170,455 euros for 365 days of service, a sum that appears to be much higher than the average salary of a member of a VPD. Regardless of whether the sum is considered high or low, it does illustrate the commercial character of the transaction. In assessing the commercial character of the transaction, it is irrelevant that the repayment is for costs incurred by the Italian Government in providing the services, because, given that the criterion is the nature and not the purpose of the transaction, it is immaterial whether the Italian Government was prompted by a profit motive. Second, the Majority states that “this reimbursement to the Italian Government, as opposed to a direct payment of salary by the shipowners is a standard and common practice designed to simply compensate the Ministry of Defence for the costs incurred by the VPDs when stationed onboard a vessel”.Footnote 89 It matters not whether the practice is standard or not; what is decisive is that, at any rate, in the case of Italy, it is a practice that is part of what is an essentially commercial transaction. Third, there is another problem in Article 6, which speaks of “repay[ing] costs linked to the employment of VPDs”. The word “employment” in English (the official language of the Arbitration) strongly suggests that the VPDs were in the employment of the shipowners. It would be entirely reasonable to read the phrase this way: “repay costs linked to the employment of VPDs by the shipowner”. It warrants comment that no explanation has been offered for the use of this word, which, if given its ordinary meaning in English, would mean that the VPDs as employees of the shipowners would certainly not be entitled to immunity for their acts.
(v) A question that deserves consideration is whether the act of the marines firing the shots that killed the two Indian fishermen can be isolated and severed from the commercial transaction that led to their emplacement on the “Enrica Lexie”. In other words, can the shooting be isolated and severed as a sovereign, governmental act attracting immunity? Can it stand on its own? Those questions must be answered in the negative. The presence of the marines on the vessel is so intertwined with the essentially commercial transaction between the Italian Government and the shipowners that it is not possible to separate the one from the other. After all, absent that transaction, they would not have been on the vessel. Even though it is argued that the marines acted in accordance with the Ministry of Defence's terms of engagement, it is not possible to separate their conduct from the context in which they were placed onboard the “Enrica Lexie”. When they fired the shots, they did so against the background and on the basis of a commercial transaction in which (a) the Government of Italy received from the shipowners the sum of 467 euros per person per day, amounting to 14,010 euros for 30 days of service and (b) the shipowners were obliged to accept onerous obligations in order to protect the Government of Italy from claims arising from the conduct of the marines. Although in accordance with the Agreement the sum paid by the shipowners was to “repay the costs incurred for the employment of the VPDs”, it is not unreasonable to see that sum as being in effect a payment by the shipowners for the services of the marines. While the provision of security by a government for its citizens is usually seen as a sovereign, governmental act, it need not necessarily have that character. In some countries today, the provision of security has a commercial component. In this case, the commercial component is such that it completely nullifies the public purpose that is usually associated with the provision of security by a government. The shooting that led to the death of the two Indian fishermen was by its nature a commercial act carried out in defence of the interests of the shipowners. It is as though the Agreement between the Italian Government and the shipowners was in effect a contract for the employment of the marines by the shipowners. The services provided by the marines to the shipowners cannot attract immunity in the circumstances of this case.
B. Distinguishing the Peculiar Circumstances of This Case From Other Situations in Which the Issue of the Immunity of State Officials Arises
64. The peculiar circumstances of this case are that the marines as State officials carrying out their duties under the Agreement, shot and killed two Indian fishermen; in respect of that act, as has been discussed earlier, the State has no immunity under customary international law by reason of the commercial character of the transaction authorizing it. This case therefore concerns both the immunity of a State official and the immunity of a State itself.
65. The circumstances described above (see paragraph 64) are different from the usual situation in which the issue of immunity of a State official arises in relation to the acts of officials carried out in an official capacity. It is different because in those situations, the official acts are usually performed against the background of the immunity of the State for the very same acts, whereas in the instant case, the State has no immunity in respect of those acts. In the usual situation the immunity of a State official will, more often than not, be coterminous with the immunity of the State for the same act. Thus, as noted before, the ICJ held in Certain Questions of Mutual Assistance in Criminal Matters: “such a claim is in essence a claim of immunity for the Djibouti State, from which the Procurer de la Republique would be said to benefit”. Here, the ICJ sees an organic relationship between the immunity of a State official for an act and the immunity of the State itself for the very same act, a relationship in which the immunity of the State for that act flows to the State official. Thus, the immunity of the State official is contingent on the immunity of the State for the same act. Absent the immunity of the State in respect of the acts of its official, there is no immunity from which the marines can benefit, that is, there is no immunity of the State to flow to its official.
66. The circumstances described above (paragraph 64 above) are different from the situation in which the issue of the immunity of a State official arises for acts that are ultra vires his mandate from the sending State.Footnote 90 Here, it is agreed that the official enjoys immunity. But here again, the immunity of the State official proceeds on the basis that the State will usually enjoy immunity in respect of the same act, whereas in the instant case the State does not have immunity in respect of the acts carried out by its officials. The immunity of a State official for acts that are ultra vires is merely an illustration of the truism that a State official's immunity is for the most part a reflection of the immunity of the State. For the immunity of a State under customary international law cannot and does not depend on whether its acts are intra or ultra vires its laws or anything else. Its immunity simply depends on its sovereignty and so long as what is in issue is a sovereign and not a commercial act it will have immunity.
67. What must now be considered is whether the circumstances described above (paragraph 64) are different from those in which the issue of the immunity of a State official arises in respect of his acts that are jure gestionis.
68. To begin with, both the ILC CommentaryFootnote 91 and the Memorandum by the SecretariatFootnote 92 (hereinafter the “Secretariat Paper”) make clear that there is a doctrinal controversy concerning the immunity of the State official in respect of acts jure gestionis – so much for the Majority's reference to the ILC's “uncontroversial premise that the acts of State officials performed in an official capacity are subject to immunity”.Footnote 93 The Secretariat Paper states that “the distinction between acts jure imperii and acts jure gestionis, which appears to be relevant in the context of State immunity, also applies in the context of immunity ratione materiae of State officials”.Footnote 94 The Paper concludes that “there would seem to be reasonable grounds for considering that a State organ performing an act jure gestionis which is attributable to the State is indeed acting in his or her official capacity and would therefore enjoy immunity in respect of that act”.Footnote 95 The ILC appears to follow this tentative conclusion of the Secretariat Paper but provides no authority for it. The idea that a State official will always enjoy immunity once he acts in an official capacity has at least one undesirable implication in that it contributes to the position adopted by some that a State official enjoys immunity even for acts constituting crimes that breach a peremptory norm of jus cogens, provided the State official was acting in an official capacity. Doctrine and practice should combine to prevent such an outcome.
69. In any event, the situation covered by that conclusion is wholly distinct from the circumstances of this case: in that situation the immunity of the official is principally driven by his own conduct, while in the circumstances of this case, the immunity of the official is principally driven by the conduct of the State. Thus, the statement in the ILC Commentary – that “it is irrelevant … that the conduct of a State organ may be classified as commercial …”Footnote 96 – is itself irrelevant to the instant case in which immunity is principally driven not by the conduct of a State organ, the marines, but rather by the conduct of the State. As has been shown, the acts of the Italian State on the basis of which the marines performed their function amounted to a commercial transaction, leaving Italy bereft of immunity for that conduct; therefore the marines chosen by that country to implement the commercial transaction cannot be protected by an immunity that the Italian State itself does not have. The fact that the marines acted in an official capacity is immaterial. Acting in an official capacity cannot by itself endow a State official with immunity if its State is not entitled to immunity in respect of his actions. State officials do not generate their own immunity by their acts; the source of their immunity is the State itself; if the State lacks immunity, as Italy does in this case, then it has no immunity to transmit to its officials or, in the language of the ICJ, it has no immunity from which the officials would benefit. Therefore the circumstances of the instant case (in paragraph 64) are wholly different from the situation dealt with in the cases set out by the Majority to illustrate the argument of Italy that “even if the interests at issue were commercial”, the distinction between acts jure imperii and acts jure gestionis is irrelevant to the immunity of State officials from foreign criminal jurisdiction “as long as the acts at issue were performed in an official capacity”.Footnote 97 These cases are again cited by the Majority.Footnote 98 However, none of them addresses the peculiar circumstances of this case: a situation in which Italy has no State immunity from which the marines as State officials could benefit because it carried out a commercial transaction in order to emplace the marines onboard the “Enrica Lexie”. The instant case concerns both the immunity of a State official and the immunity of the State. None of the cases cited addresses the issue of the immunity of a State official. They are confined to the issue of State immunity.
70. Both the Secretariat Paper and the 2010 Report on Immunity of State Officials proceed on the assumption that once an official acts in an official capacity he or she has immunity in respect of those acts. The Majority followed this approach.Footnote 99 This is a questionable premise. Just as questionable is the link that is made between the law of immunity and the law of State responsibility, whereby immunity necessarily follows from the attribution of an act of a State official to his State.Footnote 100 The facile manner in which the link is made leaves unanswered many questions concerning the relationship between the two regimes. The ILC Commentary on its 2010 Report on the Immunity of State Officials cites with approvalFootnote 101 the Commission's statementFootnote 102 that, “it is irrelevant for the purposes of attribution that the conduct of a State organ may be classified as ‘commercial’ or as acts jure gestionis”. While the ILC stressed that its draft Articles on State Responsibility only served the purpose of determining the responsibility of a State and said nothing about the “legality or otherwise of that conduct”,Footnote 103 one commentator observed that “the law of state immunity is concerned with the exercise of public powers in mediating the interest of the forum and foreign state”.Footnote 104 There is a danger in eliding the law of the immunity of State officials with the principle of attribution in the law of State responsibility. It should not be taken for granted that once an act of an official is attributable to a State, that official will always enjoy immunity in respect of that act.
C. Conclusion
71. If the Arbitral Tribunal has jurisdiction over the question of the immunity of the marines from the exercise of Indian criminal jurisdiction, quod non, the marines do not enjoy immunity from that jurisdiction for the following reasons:
(i) Italy bears the burden of establishing to the satisfaction of the Arbitral Tribunal that the marines are entitled to immunity from the exercise by India of its criminal jurisdiction over them.
(ii) The act of Italy that resulted in the emplacement of the marines on the “Enrica Lexie” was by its nature commercial and not sovereign; therefore, notwithstanding that the emplacement of the marines on the vessel served the public purpose of protecting the ship from piratical attacks, Italy does not enjoy immunity under customary international law; the shooting by the marines is not severable from the commercial transaction that led to the embarkation of the marines on the “Enrica Lexie”; it was by nature a commercial, and not a sovereign, act.
(iii) Since the immunity of the marines is for the most part a reflection of the immunity of the State of Italy, the absence of Italian immunity for the acts leading to the shooting of the two Indian fishermen means that there is no immunity from which the marines can benefit as State officials; the marines cannot generate their own immunity and it is not decisive that they were acting in an official capacity.
(iv) In order for the marines to enjoy immunity, Italy has the burden of establishing that in their service on the ship they remained in the employment of the Italian Government and did not become employees of the shipowners. The following factors raise serious questions as to whether the marines were not in the employment of the shipowners. First, the sum paid by the shipowners for “repay[ing] costs linked to the employment of VPDs” is of such an amount that it is not unreasonable to see it as a payment by the shipowners for the services of the VPDs. Second, the language in Article 6 – “repay[ing] costs linked to the employment of VPDs” suggests that the marines were in the employment of the shipowners; in English, it would be reasonable to read the sentence as meaning, “repaying costs linked to the employment of VPDs by shipowners”; if the marines were so employed their actions would not attract immunity because the possibility of immunity only arises if they were performing sovereign functions on behalf of the Italian Government. Third, the nature of the very onerous obligations imposed by the Agreement on the shipowners also raises doubt as to whether as a result of the Agreement the marines did not become employees of the shipowners.
(v) In light of the foregoing, Italy has failed to discharge its burden of establishing that the marines are entitled to immunity ratione materiae.
V. WHETHER THE MARINES ARE ENTITLED TO IMMUNITY FROM THE CRIMINAL JURISDICTION OF INDIA IN THE ABSENCE OF AN AGREEMENT BETWEEN ITALY AND INDIA: THE ASSIMILATION OF THE MARINES TO THE STATUS OF VISITING FORCES
72. This Part offers an alternative foundation for the conclusion in the last Part that the marines are not entitled to immunity ratione materiae. It argues that the marines can be assimilated to the status of visiting forces, which generally, do not enjoy immunity under customary international law for their acts. The immunity of visiting forces usually depends on agreements concluded between the sending and receiving States.
73. The Agreement between the Ministry of Defence and the shipowners envisaged the embarkation and disembarkation of VPDs at ports in various countries. Thus, Article 2.1 provides that “embarkation and disembarkation of vessel protection detachments takes place based on existing agreements with coastal States in the High-Risk Area, in ports listed in the Addendum”. That document identifies Djibouti as the main port for embarkation and disembarkation of VPDs. It also identities nine ports in other countries for that purpose. Moreover, Article 2.1 provides that vessel protection will be available “even in cases where for the technical and operational reasons, VPDs may embark and disembark in traffic areas laying outside the areas identified by the Ministry of Defence by means of a specific decree”.
74. Thus, according to the Agreement, VPDs could embark, disembark, and enter ten States for the purposes of their services. In the instant case, the “Enrica Lexie” was sailing from Galle, Sri Lanka to Port Said, Egypt. The question arises whether VPDs are immune from the jurisdiction of those receiving States in respect of acts that fall under their jurisdiction.
75. When the two marines were arrested by the Indian Coast Guard, one of them, Sergeant Latorre, gave the Coast Guard a written Statement that included an assertion that they were entitled under international law to the immunity of “forces in transit”. Although VPDs are obviously on the move, embarking and disembarking at ports in various countries, it is not entirely clear what is meant by the immunity of “forces in transit”. To the extent that the phrase refers to the principle of the “law of the flag”, this harkens back to the doctrine of absolute immunity, derived from the decision in Schooner Exchange v. McFadden.Footnote 105 The law of the flag, which provided the basis for absolute immunity of visiting forces, is as outmoded as the doctrine of absolute immunity, which was replaced some one hundred year ago by the doctrine of restrictive immunity. In this Part, it is argued that when VPDs disembark and commit a crime in a receiving State or when they commit a crime that takes effect on a vessel that falls within the jurisdiction of the receiving State they are assimilated to the status of visiting forces under customary international law. The Arbitral Tribunal found that India had jurisdiction in respect of the crimes committed on the “St. Antony” on two bases: first, as the flag State, over the offence that commenced on the “Enrica Lexie” and was completed on its vessel, the “St. Antony”; second, on the basis of the principle of objective territoriality.Footnote 106 It found that India had the right to assert its jurisdiction over the offence that was allegedly completed onboard its vessel.Footnote 107
76. It is generally accepted that notwithstanding the number of Status of Forces Agreements (hereinafter “SOFA”) granting visiting forces certain immunities in a receiving State, there is no rule of customary international law that visiting forces enjoy immunities in a receiving State. Their immunities depend on agreement between the State of the visiting forces and the receiving State. These immunities are usually found in SOFAs. One commentator expressed the view that:
Even though NATO has generated substantial relevant practice and the NATO SOFA is often used as a precedent, there is no consensus about the existence of a corresponding rule of customary international law. Indeed the contents of modern SOFA tend to vary by the circumstances.Footnote 108
77. Regrettably, the agreements concluded by Italy (described as existing agreements) with the ten States identified in the Addendum to the Agreement were not available for examination. Nonetheless, it is safe to assume that they include provisions, similar to those in SOFAs, granting immunity to the VPDs in circumstances when the receiving State is entitled to exercise jurisdiction over them under international law. Interestingly, the material before the Arbitral Tribunal shows that on 6 February 2012, Italy requested India to grant diplomatic clearance of a cargo vessel which had six VPDs onboard. India declined the request for an agreement on VPDs.Footnote 109
78. The existence of these agreements in no way detracts from the generally accepted proposition that, despite the existence of SOFAs there is no rule of customary international law that visiting forces enjoy immunities from the jurisdiction of receiving States. In fact, agreements such as SOFAs and the existing agreements between Italy and the ten States mentioned in the Addendum to the Agreement are concluded because States are not confident that there exists a customary rule granting immunities to visiting forces.
79. When the two Indian fishermen were shot and killed, they were aboard the “St. Antony”, a vessel over which, as has been stated, the Arbitral Tribunal has found that India has jurisdiction as the flag State and on the basis of the principle of objective territoriality. The assimilation of the marines to the status of visiting forces means that, absent an agreement between Italy and India for their immunities as officials of a foreign State, they do not enjoy immunity from Indian criminal jurisdiction in respect of the shooting from the “Enrica Lexie” that resulted in the death of the fishermen.
VI. GENERAL CONCLUSIONS
80. The original error in the Award is the Majority's mischaracterization of the dispute; the cascade of errors thereafter is traceable to that original error.
81. The case brought by Italy against India should be dismissed because:
(i) The dispute, properly characterized, concerns the question of the exercise by India of its criminal jurisdiction over the marines in the face of their claim to immunity therefrom; the Arbitral Tribunal has no jurisdiction over the issue of the immunity of the marines because it does not concern the interpretation or application of the Convention; since that issue is a core element of the dispute, the Arbitral Tribunal should have declined jurisdiction over the dispute.
(ii) The issue of the immunity of the marines is not an incidental question; rather it is a core element of the dispute; it is the real issue in the dispute between the Parties.
(iii) The Arbitral Tribunal derives no help from the doctrine of the incidental question in determining whether it has jurisdiction over the issue of the immunity of the marines. The case relied on by the Majority, Case Concerning Certain German Interests, is not pertinent to the facts of the instant case. It is the UNCLOS Annex VII cases of Chagos Marine Protected Area Arbitration, South China Sea Arbitration, and Ukraine v. Russia that are pertinent. Those cases stress the need to separate a so-called incidental question from the real issue that is in dispute. In this case, the issue of the immunity of the marines is the real issue separating the Parties; since it does not concern the interpretation or application of the Convention, the Arbitral Tribunal would, in any event, be obliged to decline jurisdiction over the dispute.
(iv) Even if the Arbitral Tribunal had jurisdiction over the issue of the immunity of the marines, the marines do not enjoy immunity either because: (a) the State of Italy engaged in an essentially commercial transaction in order to emplace the marines onboard the “Enrica Lexie” to protect the vessel from pirates; that act, jure gestionis, does not attract immunity for the State of Italy under customary international law; therefore the State of Italy had no immunity from which the marines could benefit in their act of firing shots from the “Enrica Lexie” that resulted in the death of two Indian fishermen aboard the “St. Antony”; or (b) the marines can be assimilated to the status of visiting forces which do not enjoy immunity under customary international law for acts carried out in the receiving State. Since there was no agreement between Italy and India to grant immunity to the marines, the act of the marines that was completed onboard the “St. Antony”, over which India had jurisdiction as the flag State or on the basis of the principle of objective territoriality, does not attract immunity.
82. In sum, in light of the foregoing, the immunity claim fails, and the Courts of India are competent to continue to exercise criminal jurisdiction over the marines.
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Dr. Sreenivasa Rao Pemmaraju (Dr. P.S. Rao) and Judge Patrick Robinson
1. The present joint dissenting opinion addresses the findings in paragraph 1094(B)(4)(a) and (b) of the Award that Italy has not violated Articles 56 and 58, paragraph 3, of the Convention.
I. DISSENT TO THE FINDING IN PARAGRAPH 1094(B)(4)(A) OF THE AWARD THAT ITALY HAS NOT VIOLATED INDIA'S SOVEREIGN RIGHTS UNDER ARTICLE 56 OF THE CONVENTION
2. In paragraph 1094(B)(5) of the Award, the Majority finds that “by interfering with the navigation of the “St. Antony” Italy has acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention”. An examination of why that finding is correct illustrates why the finding in paragraph 1094(B)(4)(a) is wrong. The finding in paragraph 1094(B)(5) is correct inasmuch as it is based on the firing by the Marines of shots that interfered, both during the course of and after the incident, with the right of Indian fishermen to engage in fishing within the Indian exclusive economic zone over which India enjoys sovereign rights under Article 56, paragraph 1, of the Convention. The intention of the Marines, insofar as it is claimed and admitted that they acted under an apprehension of a perceived threat of piracy, is immaterial for treating the conduct of the Marines as an internationally wrongful act attributable to Italy as the State of which they are officials. Given that the factual matrix is the same in respect of all three provisions, that is, Article 56, paragraph 1, Article 87, paragraph 1, and Article 90 of the Convention, it is odd that the Arbitral Tribunal failed in paragraph 1094(B)(4)(a) to draw the same conclusions with respect to Article 56, paragraph 1, and Article 58, paragraph 3, as it did in the case of Article 87, paragraph 1, and Article 90 of the Convention.
3. In relation to its claim that Italy breached Article 87, paragraph 1, subparagraph (a), of the Convention, India submitted that its freedom and right of navigation in its exclusive economic zone was violated by Italy “when the Marines fired shots at the ‘St. Antony’ and caused it to change course and veer away to avoid further gunfire”.Footnote 1 Italy submitted that the measures, adopted by the Marines to avoid a collision or perceived risk of hostile boarding, did not constitute an interference with the freedom of navigation of the “St. Antony”Footnote 2 and in no way involved any attempt by Italy to interfere with India's freedom of navigation.Footnote 3 In effect, Italy argued that the Marines had no intention to interfere with India's freedom of navigation, and that the measures they adopted were a response to what they perceived as a potential collision and an attack by pirates.
4. The Arbitral Tribunal was not persuaded by Italy's submission. It simply identified the possible breaches of the right to freedom of navigation, including “physical or material interference with navigation of a foreign vessel”,Footnote 4 determined that the shooting by the Marines “caused the ‘St. Antony’ to change direction and ultimately head back to shore”,Footnote 5 and concluded that this was an interference with the navigation of the “St. Antony”, in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention. Notably, in identifying the breaches of the primary obligation to respect India's right to freedom of navigation, the Arbitral Tribunal did not include “an intention to harm” as an element of the breach.
5. The Arbitral Tribunal was entirely correct to disregard Italy's submission that the Marines did not intend to interfere with the “St. Antony”’s navigation, because a State's international responsibility for wrongful conduct is engaged independently of whether it intended to cause harm. This is how the ILC addresses the question in paragraph 10 of the Commentary on Article 3 of its Draft Articles on State Responsibility:
A related question is whether fault constitutes a necessary element of the internationally wrongful act of a State. This is certainly not the case if by “fault” one understands the existence, for example, of an intention to harm. In the absence of any specific requirement of a mental element in terms of the primary obligation, it is only the act of a State that matters, independently of any intention.Footnote 6
6. It is surprising that, in considering India's submission that Italy violated its sovereign rights under Article 56 of the Convention, the Majority did not follow the same impeccable reasoning that led to its finding that Italy had violated India's right to freedom of navigation under Article 87, paragraph 1, subparagraph (a), of the Convention. The factual matrix is the same in respect of India's claim of Italy's breach of Article 87, paragraph 1, subparagraph (a), and its claim of a breach of Article 56 of the Convention: the firing of shots by the Marines from the “Enrica Lexie” to the “St. Antony” and the death of the two Indian fishermen.
7. Moreover, Italy's submissions are also the same, namely, that Italy acted on the basis of an apprehension that the “Enrica Lexie” was facing the threat to a safety of its navigation, in the form of a risk of collision and pirate boarding; Italy argues that it did not act to impede India's right to explore and exploit its natural resources in its exclusive economic zone. The Arbitral Tribunal found that “the Marines and the ‘Enrica Lexie’ crew believed that the vessel was under a pirate attack and took actions…to protect the ‘Enrica Lexie’ against a perceived pirate attack”.Footnote 7 However, Italy's international responsibility is engaged for the acts of the Marines that clearly infringed India's sovereign rights by firing at the “St. Antony” and the killing of two Indian fishermen. Its responsibility is engaged, as the ILC stated, “independently of any intention”, that is, independently of whether the Marines had “an intention to harm” India's sovereign rights to exploit its living resources in the exclusive economic zone. There is nothing in the formulation in Article 56 of the coastal State's sovereign rights to exploit its living resources in its exclusive economic zone to absolve Italy of its responsibility in this regard. Hence, the Majority's reasoning that “the Marines did not target the ‘St. Antony’ as a fishing vessel, but on the suspicion that it was a pirate vessel intending to board the ‘Enrica Lexie’”Footnote 8 cannot serve as basis, under the law of State responsibility, to conclude that Italy did not violate India's sovereign rights under Article 56 of the Convention. What is relevant is that, whether the “St. Antony” was targeted or not, the Marines fired shots that resulted in the death of the two Indian fishermen, consequently contravening the enjoyment by India of its sovereign rights in the exclusive economic zone.
8. While the mental state (an intention to harm) of the Marines may be a factor affecting the quantum of damages for the breach, it does not affect the fundamental question of Italy's responsibility for its breach of Article 56 of the Convention.
9. Paragraph 10 of the ILC Commentary, cited above, does not state anything that is new in the law of State responsibility. In the case of the Jessie,Footnote 9 the tribunal held that although the United States naval authorities acted bona fide, they made an error of judgment and that the United States Government, like any other government, was responsible for the errors in judgment of its officials. Similarly, in this case, Italy bears responsibility for acts of the Marines that led to the shooting at the “St. Antony” and the killing of the two fishermen, thereby interfering with India's enjoyment of its sovereign rights in respect of the living resources in its exclusive economic zone. Clearly, the position of the Majority in concluding that there was no breach of Article 56 because the Marines’ conduct had “the discrete purpose of protecting the ‘Enrica Lexie’ against a perceived pirate attack”Footnote 10 is at variance with this well-established principle governing State responsibility, and the reason for the same is not obvious
10. It may be that the conduct of the Marines, directed at what the Majority describes as “a perceived pirate attack”, would not be in breach of Article 100 that imposes a duty on all States to “cooperate to the fullest possible extent in the repression of piracy”. But conduct that does not breach Article 100 may yet breach Article 56, because the Articles impose different requirements on State Parties. Compliance with Article 100 may not necessarily constitute compliance with Article 56 of the Convention.
11. By way of further justification, the Majority found that the Marines’ conduct was a “singular and isolated incident, which had a merely incidental effect on the ability of a fishing vessel, the ‘St. Antony’, to continue pursuing its fishing activities”.Footnote 11 This is a very questionable finding. In the first place, in its reference to “a fishing vessel”, it would appear to be embracing the elitist view that Article 56 is more concerned with fisheries than fishermen.Footnote 12 Secondly, the effect of the conduct of the Marines on the ability of the “St. Antony” to carry out its fishing activities is anything but “incidental”; it is a very direct effect. Third, for the purposes of the engagement of the international responsibility of Italy, it is irrelevant that the Marines’ conduct was what the Majority describes as “a singular and isolated incident”. Neither the right under Article 56, nor its corresponding obligation has a numerical threshold. What is relevant is that that conduct interfered with India's enjoyment through the fishermen of its sovereign rights in extracting the living resources in its exclusive economic zone. Moreover, it appears that the Majority concluded that the shooting by the Marines at the “St. Antony” and the killing of the two Indian fishermen plying their trade in India's exclusive economic zone does not rise to the level of interference with “sovereign rights for the purposes of exploring and exploiting, conserving and managing” the natural resources of the exclusive economic zone. Yet, it is hard to envisage any act that could constitute a greater interference with a coastal State's enjoyment of its sovereign rights in the exclusive economic zone than the killing of two of that State's fishermen while they were pursuing their livelihood of fishing in that coastal State's exclusive economic zone.
12. The Majority, in an attempt to justify its finding, invokes India's duty under Article 56, paragraph 2, to have “due regard to the rights and duties of other States and the applicability of Article 110 of the Convention”.Footnote 13 Article 110 is irrelevant. That Article addresses the circumstances in which a warship may exercise the right of visit in relation to a foreign ship on the High Seas. One of the circumstances identified is when the foreign ship is engaged in piracy. However, the Article is inapplicable because the “Enrica Lexie” is neither a warship nor a “duly authorized ship” within the meaning of Article 110, paragraph 5, of the Convention.
13. Second, the Majority did not cite Article 56, paragraph 2, of the Convention in full. The duty to have due regard does not exist in a vacuum. It arises when the coastal State is “exercising its rights and performing its duties under the Convention in the exclusive economic zone”. The obligation of India to have due regard to the rights of Italy does not arise because India was not exercising any right or performing any obligation in respect of the incident that took place in its exclusive economic zone. By the time the Indian authorities came on the scene, the Marines had already fired the shots from the “Enrica Lexie” that resulted in the killing of the two Indian fishermen on the “St. Antony”. Therefore, the due regard obligation is inapplicable to India. Moreover, the Arbitral Tribunal unanimously determined that India did not breach the obligation under Article 100 of the Convention to “cooperate to the fullest possible extent in the repression of piracy on the High Seas”.
14. Therefore, we regret our inability to share the conclusion of the Majority, finding that Italy had not violated India's sovereign rights under Article 56 of the Convention, which is wrong.
II. DISSENT TO THE FINDING IN PARAGRAPH 1094(B)(4)(B) OF THE AWARD THAT ITALY HAS NOT VIOLATED ARTICLE 58, PARAGRAPH 3, OF THE CONVENTION
15. India argues that Italy has breached the due regard obligation in Article 58, paragraph 3, of the Convention. Italy's response is quite straightforward. It argues that the action taken by the Marines was in response to a perceived threat of a collision and pirate attack and hence a threat to the “Enrica Lexie”’s safe navigation. The Majority found that the duty under Article 100 of the Convention to repress piracy is a duty incumbent on all States. It also found that “if protection from and repression of piracy comprise a right and a duty of India and Italy alike, including within India's [EEZ], the conduct of the Marines on board the ‘Enrica Lexie’ in responding to a perceived piracy threat cannot have ‘unreasonably interfere[d] with’, and thus have failed to show ‘due regard’ to, India's rights as the coastal State”.Footnote 14
16. The best definition of the due regard obligation is the one that is found in the award in the Chagos Marine Protected Area Arbitration, which is cited in paragraph 976 of the Award. That tribunal found that the due regard obligation requires “such regard for the right of Mauritius as is called for by the circumstances and by the nature of those rights”. The tribunal then went on to find that “the extent of the regard required by the Convention will depend upon the nature of the rights held by Mauritius, their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the United Kingdom, and the availability of alternative approaches”.Footnote 15
17. In the instant case, the right for which Italy must have due regard is India's sovereign rights to exploit the living resources (fisheries) in its exclusive economic zone. Italy has a corresponding obligation to respect that right. The conduct of the Marines in firing shots at the “St. Antony”, resulting in the death of the two Indian fishermen was a breach of that obligation. This obligation exists notwithstanding that the Marines did not intend to harm India's enjoyment of its right to exploit the living resources in its exclusive economic zone. That is so because a State's international responsibility for wrongful conduct, as noted above in paragraph 5, above, is engaged independently of whether it intended to cause harm.
18. Dicta from the Chagos Marine Protected Area Arbitration award indicate that the regard that is required is that which is called for by the circumstances and by the nature of the right. The nature of India's right is such that Italy is not relieved of its obligation to respect and have due regard for that right on the ground that the Marines perceived that there was a threat of a collision and pirate attack. In this case therefore, Italy's breach of its obligation to respect India's rights under Article 56, paragraph 1, subparagraph (a), of the Convention is also a breach of its duty under Article 58, paragraph 3, of the Convention to have due regard for that right.
19. One of the factors identified in the Chagos Marine Protected Area Arbitration award for determining the extent of the regard required by the Convention is the “availability of alternative approaches”. It was certainly open to the Marines to take some action other than firing at a miniscule vessel, leading to the death of the two Indian fishermen. For example, the difference in the size and maximum speed of the “Enrica Lexie” (243.8 metres and 14 knots) and the “St. Antony” (13.7 metres and 10 knots) was such that the “Enrica Lexie” could easily have changed course and outrun the very small Indian fishing boat, thereby avoiding any risk of collision or pirate attack. This provides another basis for concluding that the obligation to have due regard to India's rights was breached by Italy.
20. It remains now to address the observation of the Majority that Article 100 imposes a duty on all States to repress piracy in their exclusive economic zone. The Majority's finding in paragraph 980 of the Award has already been cited in paragraph 1 of this Joint Dissent. It is a finding that is based on reasoning that is wholly tortuous and wrong. If the phrase, “India and Italy alike” is intended to signify an equivalence in the position of the two countries in relation to the suppression of piracy, it is misleading. In the first place, India did not fail by any act or any omission in its duty to repress piracy in its exclusive economic zone. The Arbitral Tribunal unanimously found in paragraph 1094(B)(1)(d) of the Award that India did not violate its duty to repress piracy under Article 100. Second, the Majority's finding that the Marines’ response was prompted by their perception of the risk of collision and a pirate attack is misplaced. As noted before, the obligation imposed by the right under Article 56, paragraph 1, subparagraph (a), of the Convention applies independently of any intention. Whether the Marines acted reasonably or not in the circumstances is irrelevant to the engagement of Italy's international responsibility on the basis of their conduct.
21. For all the reasons noted above, we disagree with the Majority and hold that Italy is in breach of its obligation of due regard under Article 58, paragraph 3, of the Convention. The bona fide conduct of the Italian officials may be taken into consideration, as a factor, to determine the quantum of damages for the breach, but it does not relieve Italy of its international responsibility for its failure to pay due regard under Article 58, paragraph 3.
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