1976 Maritime Zones Act | The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, of the Republic of India |
1981 Notification | Notification of the Ministry of Home Affairs of the Republic of India, No. S.O. 671(E), dated 27 August 1981 |
ILC Draft Articles Concerning the Law of the Sea | Draft Articles Concerning the Law of the Sea, with Commentaries, adopted by the International Law Commission at its eighth session, in 1956 |
ILC Draft Articles on State Responsibility | Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, adopted by the International Law Commission at its fifty-third session, in 2001 |
BMP4 | Best Management Practices for Protection against Somalia Based Piracy, August 2011, produced and supported by, inter alia, International Chamber of Shipping, International Association of Independent Tanker Owners, the Society of International Gas Tanker and Terminal Operators, Operation Ocean Shield, and the United Kingdom Maritime Trade Operations |
Boarding Party | A boarding party constituted of Commandant [REDACTED] and 36 police officers of the Republic of India, which boarded the "Enrica Lexie" on 16 February 2012 |
Captain Fredy | Mr. Fredy J., on 15 February 2012, captain and owner of the "St. Antony" |
Captain Noviello | Mr. Carlo Noviello, on 15 February 2012, Master Supernumerary of the "Enrica Lexie" |
Captain Vitelli | Mr. Umberto Vitelli, on 15 February 2012, Master of the "Enrica Lexie" |
CET | Central European Time |
CGAE | Coast Guard Air Enclave at Kochi, Republic of India |
CINCNAV | Commander in Chief of the Naval Squadron, Operational Headquarters of the Italian Navy |
COLREGS | Convention on the International Regulations for Preventing Collisions at Sea, done at London on 20 October 1972 |
Commandant [REDACTED] | Commandant [REDACTED], on 15 February 2012, Assistant Commandant and Boarding Officer of the Indian Coast Guard Ship "Lakshmibai" |
Convention or UNCLOS | United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982 |
CSO | Company Security Officer |
DIG | Deputy Inspector General, Republic of India |
DIG [REDACTED] | DIG [REDACTED], on 15 February 2012, Commandant and Staff Observer at Coast Guard Air Enclave at Kochi |
ILC Draft Articles on Immunity of State Officials | Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, provisionally adopted by the International Law Commission at its sixty-sixth session, in 2014, and at its sixty-eighth session, in 2016 |
Hearing | Hearing on Jurisdiction and Merits before the Arbitral Tribunal, held from 8 to 20 July 2019 at the headquarters of the PCA at the Peace Palace in The Hague, the Netherlands |
ICGS | Indian Coast Guard Ship |
ICJ | International Court of Justice |
ILC | International Law Commission |
IMO | International Maritime Organisation |
India | Republic of India |
India's Counter-Memorial | Counter-Memorial, dated 14 April 2017 |
India's Rejoinder | Rejoinder on the Merits – Reply on Jurisdiction – Reply to Italy's Counter on India's Counter-Claims, dated 15 December 2017 |
India's Written Observations on Italy's Request for the Prescription of Provisional Measures | Written Observations of the Republic of India on the Request of the Italian Republic for the Prescription of Provisional Measures under Article 290, paragraph 1, of the United Nations Convention on the Law of the Sea, dated 26 February 2016 |
INS | Indian Naval Ship |
IST | Indian Standard Time |
Italian Law on VPDs | Law Decree No. 107 of 12 July 2011, of the Italian Republic: Extension (of international missions of the Armed Forces and Police available for implementing Resolutions 1970 (2011) and 1973 (2011) adopted by the Security Council of the United Nations and intervention by way of cooperation in the development and support of peace and stabilisation processes). Urgent anti-piracy measures. (11GO148) |
Italy | Italian Republic |
Italy's Memorial | Memorial, dated 30 September 2016 |
Italy's Rejoinder | Rejoinder on Jurisdiction and on India's Counter-Claims, dated 9 March 2018 |
Italy's Reply | Reply on the Merits – Counter-Memorial on Jurisdiction – Counter-Memorial on India's Counter-Claims, dated 11 August 2017 |
Italy's Request for the Prescription of Provisional Measures | Request by Italy to the Arbitral Tribunal for the Prescription of Provisional Measures under Article 290, Paragraph 1, of the United Nations Convention on the Law of the Sea, dated 11 December 2015 |
ITLOS | International Tribunal for the Law of the Sea |
ITLOS Request | Request by Italy to the International Tribunal for the Law of the Sea for the prescription of provisional measures under Article 290, paragraph 5, of the United Nations Convention on the Law of the Sea, dated 21 July 2015 |
Log Book | Log Book maintained by Captain Vitelli |
Marines | Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone |
MRCC | Maritime Rescue Coordination Centre |
MSCHOA | Maritime Security Centre – Horn of Africa |
NIA | National Investigation Agency of the Republic of India |
NIA Report | Investigation Report of the National Investigation Agency in RC No 04/2013/NIA/DLI, dated 4 April 2013 |
Notification and Statement of Claim | Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim and Grounds on Which it is Based, dated 26 June 2015 |
Parties | Italy and India |
PCA or Registry | Permanent Court of Arbitration |
PCIJ | Permanent Court of International Justice |
Piroli Report | Summary Investigation Report by Division Admiral Alessandro Piroli entitled "Attempted Pirate Attack against Merchant Vessel Enrica Lexie – 15 February 2012. Death of Indian Citizens", dated 11 May 2012 |
Provisional Measures Order | Order of the Arbitral Tribunal on the Request for the Prescription of Provisional Measures, dated 29 April 2016 |
ReCAAP | Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia |
Resolution 2077 | United Nations Security Council Resolution 2077 (2012), adopted by the Security Council at its 6867th meeting, on 21 November 2012, UN Doc. S/RES/2077 |
Rules of Procedure | Rules of Procedure for the Arbitration adopted by the Arbitral Tribunal, dated 19 January 2016 (as amended) |
SMT | Ship Mean Time |
Special Operations Group of the Carabinieri | Special Operations Group, Anti-Crime Unit, of the Carabinieri of Rome |
SSAS | Ship Security Alarm System |
SUA | Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002, of the Republic of India |
Supreme Court | Supreme Court of India |
Template Agreement | Template Agreement between the Ministry of Defence of Italy and the Ship Owner |
Tribunal Witnesses | Persons called to give evidence at the Hearing as witnesses of the Arbitral Tribunal |
UKMTO | United Kingdom Marine Trade Operations |
UTC | Coordinated Universal Time |
VCLT | Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969 |
VDR | Voyage Data Recorder |
VPD | Vessel Protection Detachment |
VPD Manual | Manual for Vessel Protection Detachments on Board Italian Merchant Vessels, 2011 |
(a) India has acted and is acting in breach of international law by asserting and exercising jurisdiction over the Enrica Lexie and the Italian Marines in connection with the Enrica Lexie incident.
(b) The assertion and exercise of criminal jurisdiction by India is in violation of India's obligation to respect the immunity of the Italian Marines as State officials exercising official functions.
(c) It is Italy that has exclusive jurisdiction over the Enrica Lexie and over the Italian Marines in connection with the Enrica Lexie incident.
(d) India must cease to exercise any form of jurisdiction over the Enrica Lexie Incident and the Italian Marines, including any measure of restraint with respect to Sergeant Latorre and Sergeant Girone.
(e) India has violated its obligation under the Convention to cooperate in the repression of piracy.2
(a) India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident; and
(b) India shall take all necessary measures to ensure that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.3
Italy and India shall both suspend all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render.5
Agent
H.E. Minister Plenipotentiary Francesco Azzarello
Ministry of Foreign Affairs and International Cooperation, Italy
Counsel
Sir Daniel Bethlehem KCMG QC, Member of the Bar of England and Wales; 20 Essex Street Chambers
Dr. Ben Juratowitch QC, Solicitor Advocate, England and Wales; Solicitor of the Supreme Court of Queensland; Partner, Freshfields Bruckhaus Deringer
Agent
Dr. Neeru Chadha
Former Additional Secretary and Legal Adviser
Ministry of External Affairs, India
Co-Agent
H.E. Mr. J.S. Mukul
Ambassador of India to the Netherlands
Deputy Agent
Dr. Vishnu Dutt Sharma
Director and Head (Legal and Treaties)
Ministry of External Affairs, India
Counsel
Professor Alain Pellet, Emeritus Professor, University Paris Nanterre; Former Chairman of International Law Commission; Member of the Institut de Droit International
Mr. Rodman Bundy, Member of the New York Bar; former avocat à la Cour d'appel de Paris; Partner, Eversheds Harry Elias LLP, Singapore
Agent
Dr. Vishnu Dutt Sharma
Additional Secretary (Legal and Treaties) (as of 19 December 2018)
Joint Secretary (Legal and Treaties) (until 18 December 2018)
Ministry of External Affairs, India
Co-Agent
H.E. Mr. Venu Rajamony
Ambassador of India to the Netherlands
Deputy Agent
Dr. Luther M. Rangreji
Director (Legal and Treaties)
Ministry of External Affairs, India
(a) Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.
(b) The Arbitral Tribunal confirms Italy's obligation to return Sergeant Girone to India in case the Arbitral Tribunal finds that India has jurisdiction over him in respect of the "Enrica Lexie" incident.
(c) The Arbitral Tribunal decides that Italy and India each shall report to the Arbitral Tribunal on compliance with these provisional measures, and authorizes the President to seek information from the Parties if no such report is submitted within three months from the date of this Order and thereafter as he may consider appropriate.12
Following completion of the necessary requirements and formalities as prescribed by the Supreme Court's Order, Sergeant Girone departed India on 27 May 2016, surrendering his passport on doing so, arriving in Italy on 28 May 2016. In compliance with the prescribed bail conditions, Sergeant Girone reported to the Comando Provinciale Carabinieri in Bari on Wednesday, 1 June 2016.14
Arbitral Tribunal
H.E. Judge Vladimir Golitsyn (President)
H.E. Judge Jin-Hyun Paik
H.E. Judge Patrick L. Robinson
Professor Francesco Francioni
Dr. Pemmaraju Sreenivasa Rao
Italy
H.E. Minister Plenipotentiary Francesco Azzarello
Director, National Authority for Armament Licensing and Controls-UAMA
Ministry of Foreign Affairs and International Cooperation
as Agent ;
Lieutenant Commander Alessandro Crocetta
Ministry of Defence of the Italian Republic
as Advisor ;
Sir Daniel Bethlehem KCMG QC
Member of the Bar of England and Wales; Twenty Essex Chambers
Dr. Paolo Busco
Member of the Rome Bar and Registered EU Lawyer with the Bar of England and Wales; Twenty Essex Chambers
Dr. Ida Caracciolo
Professor of International Law, University of Campania "Luigi Vanvitelli"; Member of the Rome Bar
Dr. Ben Juratowitch QC
Solicitor Advocate, England and Wales; Solicitor of the Supreme Court of Queensland; Partner, Freshfields Bruckhaus Deringer, Paris
Mr. Sudhansu Swaroop QC
Member of the Bar of England and Wales; Twenty Essex Chambers
Professor Guglielmo Verdirame QC
Professor of International Law, King's College, London; Member of the Bar of England and Wales; Twenty Essex Chambers
Dr. Philippa Webb
Reader in Public International Law, King's College, London; Member of the New York Bar and Member of the Bar of England and Wales; Twenty Essex Chambers
Sir Michael Wood KCMG
Member of the International Law Commission; Member of the Bar of England and Wales; Twenty Essex Chambers
as Counsel and Advocates ;
Mr. Suhail Dutt
Senior Advocate, Member of the Delhi Bar
Ms. Callista Harris
Solicitor admitted in New South Wales, Australia
Mr. Kevin Lee
Advocate of the Supreme Court of Singapore; Member of the Bar of England and Wales
Dr. Daniel Müller
Member of the Paris Bar; Associate, Freshfields Bruckhaus Deringer, Paris
Dr. Mauro Politi
Professor of International Law, University of Trento; former Member of the United Nations Human Rights Committee
Dr. Attila Tanzi
Professor of International Law, University of Bologna; Associate Member, 3VB Chambers, London
Mr. Diljeet Titus
Advocate, Titus & Co Advocates; Member of the Delhi Bar, India
a s Counsel ;
Ms. Francesca Lionetti
Freshfields Bruckhaus Deringer, Paris
as Legal Assistant.
India
Mr. G. Balasubramanian
Joint Secretary (Europe West), Ministry of External Affairs, Government of India
as Agent ;
H.E. Mr. Venu Rajamony
Ambassador of India in The Hague, the Netherlands
as Co-Agent ;
Mrs. Uma Sekhar
Joint Secretary, Legal and Treaties Division, Ministry of External Affairs, Government of India
as Co-Agent ;
Dr. Luther M. Rangreji
Counsellor (Legal), Embassy of India, The Hague
as Deputy Agent ;
Mr. Donny Michael
Deputy Inspector General, Indian Coast Guard, Government of India
Dr. Sanjay Kumar
Under Secretary, Europe West Division, Ministry of External Affairs, Government of India
Mr. S. Senthil
Legal Officer, Legal and Treaties Division, Ministry of External Affairs, Government of India
Mr. P. Vikraman
Deputy Superintendent of Police, National Investigation Agency, Government of India
as Advisors ;
Professor Alain Pellet
Emeritus Professor, University Paris Nanterre; Former Chairman of International Law Commission; Member of the Institut de Droit International
Mr. Rodman R. Bundy
Member of the New York Bar; former avocat à la Cour d'appel de Paris; Partner, Eversheds Harry Elias LLP, Singapore
Dr. Vishnu Dutt Sharma
Senior Counsel & Additional Secretary (Retd), Ministry of External Affairs, Government of India
Mr. Benjamin Samson
Centre de droit international de Nanterre (CEDIN), University Paris Nanterre
Mr. Alvin Yap
Advocate and Solicitor of the Supreme Court of Singapore; Eversheds Harry Elias LLP, Singapore
as Counsel and Advocates ;
Mr. Ludovic Legrand
Centre de droit international de Nanterre (CEDIN), University Paris Nanterre; Advisor in International Law
Ms. Héloïse Bajer-Pellet
Member of the Paris Bar
Ms. Joyce Ng
Advocate and Solicitor of the Supreme Court of Singapore; Eversheds Harry Elias LLP, Singapore
as Counsel.
Tribunal Witnesses
Captain Umberto Vitelli
(Formerly) Master of the "Enrica Lexie"
Captain Carlo Noviello
(Formerly) Master Supernumerary of the "Enrica Lexie"
Captain Fredy John Bosco
(Formerly) Captain and Owner of the "St. Antony"
DIG [REDACTED]
(Formerly) Commandant and Staff Observer at Coast Guard Air Enclave Kochi
Commandant [REDACTED]
(Formerly) Assistant Commandant and Boarding Officer of the ICGS "Lakshmibai"
Permanent Court of Arbitration
Dr. Dirk Pulkowski
Registrar
Ms. Christel Y. Tham
Legal Counsel
Ms. Susan Kimani
Legal Counsel
Ms. Willemijn van Banning
Case Manager
Court Reporter
Mr. Trevor McGowan
Interpreters
Ms. Daniela Ascoli
Ms. Marzia Sebasiani
English - Italian
Ms. Rohini Thevananth
Mr. Navaratnam Thevananth
English - Tamil
(a) By the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, and 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 UNCLOS with regard to Articles 33(1), 56(1), 56(2), 58(2), 87(1)(a) and/or 89.
(b) By directing the Enrica Lexie to change course and proceed into India's territorial sea, India violated Italy's freedom of navigation, in breach of UNCLOS Article 87(1)(a).
(c) By interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy's exclusive jurisdiction over the Enrica Lexie, in breach of UNCLOS Article 92.
(d) India violated, and continues to violate, Italy's exclusive right to institute penal or disciplinary proceedings against the Marines, in breach of UNCLOS Article 97(1).
(e) By ordering the detention of the Enrica Lexie between February and May 2012, and investigating those on board, India violated the prohibition contained in UNCLOS Article 97(3).
(f) The assertion and continued exercise of criminal jurisdiction by India over Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone is in violation of India's obligation to respect the immunity of the Marines under UNCLOS Articles 2(3), 56(2), 58(2) and 100 as Italian State officials exercising official functions.
(g) By failing to cooperate in the repression of piracy, India violated UNCLOS Article 100, read with UNCLOS Article 300.
(h) India's assertion of jurisdiction in the present case was and is contrary to UNCLOS.19
(a) India must cease all wrongful acts that have caused and continue to cause any of the continuing breaches of UNCLOS in paragraphs 1(a), (d), (f), (g) and (h), above. 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 1(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.20
(1) adjudge and declare that it has no jurisdiction with respect to Italy's Claims 1(a), 1(f) and 1(h), and/ or to dismiss and reject those Claims; and
(2) dismiss and reject all other requests and submissions of Italy.22
(3) India's counter-claims are admissible; and
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, India reserves the right to request that the Tribunal order that:
(8) Italy make full reparation for its breaches of Article 56, 58(3), 87, 88 and 90 of UNCLOS.23
(1) adjudge and declare that it has no jurisdiction with respect to Italy's Claims 1(a), 1(f) and 1(h), and to dismiss and reject those Claims; and
(2) dismiss and reject all other requests and submissions of Italy.24
(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.25
(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.
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.
was of a faded blue colour, small dimensions (less than 10 meters), with a small superstructure (wheel-house) set to the fore, white. The wheel-house had openings fitted with glass/plexiglass… [V]arious tires had been placed along the skiff as makeshift bumpers. An awning propped on two struts joined the wheel-house to the aft.58
I increased the speed to maximum power. I increased the speed before pressing SSAS. Boat was very near to midship. If I turned the ship to starboard side it will be very near to boat or collide. If I moved the ship to the portside definitely collide. Therefore I increased the speed at straight line. Before the incident the speed was 12 knots (Nautical mile per hour) and I increased it to 14 knots.84
My boat was in the waters for 8 days and I and my workers were fishing in Indian waters. I and my workers after a long night of fishing were in deep sleep, except for two people, who were supposed to be awake. On 15.2.2012 at about 4.30 pm, I got up from deep sleep after hearing noise of firing.100
It was exactly in five minutes. I was not yet in deep sleep, I had just then lay down. I had told [Jelastine] before lying down, "If anything happens, please call me". The VHF sound also I put in high volume and then only lay down. When I got up and saw – I heard the noise and then only I got up. When I got up and saw, Jelastine was bleeding from ears and eyes.104
After the event, at approximately 1830 hrs, we were contacted by phone by Bombay MRCC Command and, through 2nd Officer Sahil GUPTA, told us that they had been informed about the suspect pirate attack and, as a result, had seized two crafts. Having enquired about our course and speed, they asked me to change course and head toward Cochin (India) to take stock of events and bear witness. I asked for, and received, a written message. At 1915 hrs we changed course, heading toward Cochin.147
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 Mumbai172
Please be informed that on board of this Vessel there is a duly appointed Protection Detachment acting as Law Enforcement Detachment. The Detachment belongs to Italian Navy and is exclusively answerable to Italian Judicial Authorities.
Under International Law, the detachment is afforded with judicial immunities as internationally recognized in respect of military forces in transit. The presence of the detachment under Indian Jurisdiction is solely due to the diversion of the vessel.
The events occurred which the Indian Authorities are investigating are currently investigated by Italian authorities which are the sole competent judicial authorities under article 97 of the United Nations Convention on the High Seas.
The weapons and the witnesses material to the investigations are under exclusive Italian judicial authority.
I'm not authorized to provide any information on ongoing investigations nor to hand over any evidence nor surrender any component of the detachment without authorization of the Italian Authorities.197
(1) Ship Particulars of M.T. ENRICA LEXIE (IMO No: 9489297) – 2 sheets; (2) Crew List (24 Persons) – 1 sheet; (3) Crew List of Security Persons) [6 persons] – 1 sheet; (4) Drawn-to-scale of midship section – 1 sheet; (5) Notice for Crew in Connection with Company Security officer – 1 sheet; and (6) Notice for crew in connection with Designated Person ashore – 1 sheet.209
(1) port clearance certificate; (2) certain pages of the Enrica Lexie log book; (3) pages from the bell book; (4) oil loading and unloading details; (5) email dated 15 February 2012; (6) English version of "Protocol of Agreement between Ministry of Defence, Naval Staff and Italian Shipowner's Confederation"; and (7) pages from the passage planning of the Enrica Lexie.214
Upon request of W.O. Class 1 Massimiliano Latorre the following statement, issued before the Kerala State Police authorities tasked with forcibly taking him ashore, is put on record: "I am a member of the Italian Armed Forces, subject exclusively to National jurisdiction in compliance with the principle of Immunity of Military Forces in Transit. I consider this coercive attempt at excluding Italian jurisdiction illegal".217
(1) surrender their passports; (2) remain within "the territorial limits of the City Police Commissioner, Kochi", except to attend Court in Kollam; (3) "stay in a building within a distance of 10 kms from the office of the City Police Commissioner, Kochi"; and (4) appear before the "City Police Commissioner, Kochi" every day between 10:00 and 11:00.229
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.234
It is therefore evident that events can be clarified only when further evidence will be made available by Indian authorities and when judicial proceedings will be finalized. Assessments made in this document are based on information acquired from vessel documentation, statements by involved personnel and investigations conducted in loco. That is why said assessments must be considered as guidelines to develop assumptions and conjectures, waiting for further details regarding the other party to be provided […]. Only then we will be able to give a precise assessment of statements made by the other party, since such statements are crucial to decide, on the one hand, whether the respondents are innocent (lack of correspondence between bullet calibres) or, on the other hand, whether they were actually involved in in the event (correlation between bullet calibres, involved weapons), considering the discriminating factor linked to the fishing boat having been used only for fishing or also for armed robbery purposes.270
did not facilitate the implementation of further coordination actions with the VPD and did not seek to implement all possible passive measures of protection against pirate attacks. In particular, the ship did not change her course and speed to give way to the craft that had the right of way, or to move away and be in a safe position (given her higher speed) from a piracy/armed robbery threat.273
Accordingly, Captain Vitelli and the VPD "did not do their best to enhance closer cooperation opportunities between the parties involved in the action".274
indicate[s] lack of good faith by the Indian authorities, who knew the content of their communications to the ship were untrue, and that they hadn't tried to contact Italian governmental authorities in order to request flag state consent for the diversion to an Indian port of an Italian- flagged vessel transiting in the high seas.277
The dispute between the Italian Republic ("Italy") and the Republic of India ("India") concerning the "Enrica Lexie" is a dispute about who has jurisdiction over the M/V Enrica Lexie, an Italian-flagged oil tanker, and over the two Italian Marines stationed on the board the Enrica Lexie, in respect of an incident that occurred on 15 February 2012 about 20.5 nautical miles off the Indian coast of Kerala. The incident occurred when the Enrica Lexie was exercising the freedom of navigation en route from Galle in Sri Lanka to Port Said, Egypt.305
The central questions before you [the Arbitral Tribunal] in these proceedings are whether India was entitled to circumvent and oust Italy's flag state jurisdiction; and whether India was entitled to ignore the immunity of Italian state officials and, by doing so, to exercise its own jurisdiction over the marines. […] Italy has sought from the very outset to exercise its jurisdiction, as prescribed by international law.
[…]
Italy roots its claims to jurisdiction squarely in UNCLOS, both in the system of flag-state jurisdiction established by UNCLOS and in its specific provisions.306
Since the ITLOS and this Tribunal had not accepted our view prima facie during the written phase of the proceedings, we have only stressed the lack of jurisdiction of the Tribunal concerning, more precisely, the issue of the claimed immunities of the marines and the Italian request that the Tribunal order India to "cease to apply the provisions of the 1976 Maritime Zones Act and the 1981 Notification".… [U]pon reflection, India has decided to maintain its initial view concerning the more general lack of jurisdiction of the Tribunal in this case.310
[…]
[S]upposing yet that you [the Arbitral Tribunal] do not decline to globally exercise your jurisdiction on Italy's claims, as we think you should, it remains that India of course maintains, in the alternative, its objection to the jurisdiction of the Tribunal concerning : (1) the cessation of the application of India's Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976 and Ministry of Home Affairs notification dated 27th August 1981; and (2) the objection to jurisdiction concerning the immunities of the marines.311
While the case has been labeled the "Enrica Lexie Incident", it should more accurately be referred to as the "St Antony Incident". The consequences of the incident all related to the St Antony. The shots fired by the Marines killed two Indian nationals. […] The centre of gravity of the incident thus rests with India, and India's courts thereafter exercised jurisdiction over the Marines after they had entered Indian territory.312
Where a dispute exists between parties to the proceedings, it is further necessary that it be identified and characterized. The nature of the dispute may have significant jurisdictional implications, including whether the dispute can fairly be said to concern the interpretation or application of the Convention or whether subject-matter based exclusions from jurisdiction are applicable. Here again, an objective approach is called for, and the Tribunal is required to "isolate the real issue in the case and to identify the object of the claim".317
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.324
When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means.
Article 293
Applicable law
1. A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.
2. Paragraph l does not prejudice the power of the court or tribunal having jurisdiction under this section to decide a case ex aequo et bono, if the parties so agree.
(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.344
(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.345
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.346
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.347
By extending the application of its domestic criminal laws and, consequently, providing for the apparent jurisdiction of the Indian investigating and prosecuting authorities, and the Indian courts, over incidents occurring in international waters in excess of the limits prescribed in UNCLOS regarding the jurisdiction of coastal States in the contiguous zone and the exclusive economic zone, India has acted and continues to act in a manner incompatible inter alia with Article 56(2) and Article 89 of UNCLOS.395