The Enrica Lexie Incident

The Enrica Lexie Incident (Italy v. India) PCA Case No. 2015-28
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Type of case:
Inter-State
Date of introduction:
26 June 2015
Status of the case:
Concluded (non-ISDS case)
States Parties:
Italy
,
India
Institution:
PCA (Permanent Court of Arbitration)
Applicable Treaties:
UNCLOS

Documents of the case

Pemmaraju Sreenivasa Rao Appointed by the respondent
Patrick L. Robinson Appointed by the Appointing Authority
Jin-Hyun Paik Appointed by the Appointing Authority
Francesco Francioni Appointed by the claimant
Vladimir Vladimirovich Golitsyn President

Lawyers, other representatives, expert(s), tribunal’s secretary

Award

GLOSSARY OF DEFINED TERMS / LIST OF ABBREVIATIONS

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

 

I. HISTORY OF THE PROCEEDINGS

A. INSTITUTION OF THE PROCEEDINGS

1.
The present Arbitration was instituted on 26 June 2015 when the Italian Republic (hereinafter "Italy") served on the Republic of India (hereinafter "India") a "Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim and Grounds on Which it is Based" (hereinafter the "Notification and Statement of Claim") in respect of "the dispute concerning the Enrica Lexie Incident".
2.
Italy and India (hereinafter the "Parties") are States Parties to the United Nations Convention on the Law of the Sea (hereinafter the "Convention" or "UNCLOS").1 While, subsequent to its ratification of the Convention, on 26 February 1997, Italy made a declaration pursuant to Article 287 of the Convention accepting the jurisdiction of the International Tribunal for the Law of the Sea (hereinafter "ITLOS") and the International Court of Justice (hereinafter the "ICJ"), India has not made any such declaration. Therefore, as Italy and India have not accepted the same procedure for the settlement of disputes concerning the interpretation or application of the Convention, pursuant to Article 287, paragraphs 3 and 5, of the Convention, any dispute that may arise between the Parties in this regard may be submitted only to arbitration instituted in accordance with Annex VII to the Convention, unless the Parties agree otherwise. The Parties have not agreed on any other procedure.
3.
According to Italy, the Parties' dispute concerns an incident that occurred on 15 February 2012 approximately 20.5 nautical miles off the coast of India involving the MV "Enrica Lexie", an oil tanker flying the Italian flag, and India's subsequent exercise of jurisdiction over the incident, and over two Italian Marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, who were on official duty on board the "Enrica Lexie" at the time of the incident (hereinafter the "Marines").
4.
According to India, the "incident" in question concerns the killing of two Indian fishermen on board an Indian vessel named the "St. Antony", allegedly by rifle fire from the two aforementioned Marines stationed on the "Enrica Lexie". India contends in this regard that, while the present case has been labelled the "'Enrica Lexie' Incident", it should more accurately be referred to as the "'St. Antony' Incident".
5.
As the case, when it was instituted by Italy, was registered by the Registry of the Permanent Court of Arbitration (hereinafter the "PCA" or the "Registry") as the arbitration concerning "the 'Enrica Lexie' Incident" in the absence of any objections from the Parties at the first procedural meeting, and given that during the proceedings and in the Arbitral Tribunal's Order on Provisional Measures the case was continuously referred to as the arbitration concerning the "Enrica Lexie" Incident, the Arbitral Tribunal, without prejudice to the nature of the incident, will do likewise in the present Award.
6.
In its Notification and Statement of Claim, Italy requested the Arbitral Tribunal, once constituted, to adjudge and declare that:

(a) India has acted and is acting in breach of international law by asserting and exercising jurisdiction over the Enrica Lexie and the Italian Marines in connection with the Enrica Lexie incident.

(b) The assertion and exercise of criminal jurisdiction by India is in violation of India's obligation to respect the immunity of the Italian Marines as State officials exercising official functions.

(c) It is Italy that has exclusive jurisdiction over the Enrica Lexie and over the Italian Marines in connection with the Enrica Lexie incident.

(d) India must cease to exercise any form of jurisdiction over the Enrica Lexie Incident and the Italian Marines, including any measure of restraint with respect to Sergeant Latorre and Sergeant Girone.

(e) India has violated its obligation under the Convention to cooperate in the repression of piracy.2

B. PROCEEDINGS AT ITLOS ON PROVISIONAL MEASURES

7.
On 21 July 2015, pending the constitution of this Arbitral Tribunal, Italy filed with ITLOS a "Request of the Italian Republic for the Prescription of Provisional Measures under Article 290, paragraph 5, of the United Nations Convention on the Law of the Sea" (hereinafter "ITLOS Request").
8.
In its final submissions before ITLOS, Italy requested that ITLOS prescribe the following provisional measures:

(a) India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident; and

(b) India shall take all 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

9.
On 6 August 2015, India filed "Written Observations of the Republic of India" with ITLOS. In its final submission before ITLOS, India requested ITLOS to "reject the submissions made by the Republic of Italy in its Request for the prescription of provisional measures and [to] refuse prescription of any provisional measure[s] in the present case".4
10.
On 10 and 11 August 2015, a hearing on provisional measures was held at the headquarters of ITLOS in Hamburg, Germany.
11.
On 24 August 2015, ITLOS rendered an Order in which it prescribed the following provisional measure:

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

12.
In addition, ITLOS decided:

Italy and India shall each submit to the Tribunal initial report referred to in paragraph 138 not later than 24 September 2015, and authorizes the President, after that date, to request such information from the Parties as he may consider appropriate.6

13.
Both Parties submitted their reports within the time limit stipulated by ITLOS. Italy informed ITLOS that the Italian Public Prosecutor had decided to stay the investigation into the "Enrica Lexie" incident and refrain from commencing any other connected investigation during the pendency of the Annex VII Arbitral Proceedings.7 India informed ITLOS that the Supreme Court of India (hereinafter the "Supreme Court") had ordered that proceedings with regard to the incident that were pending in Indian courts be "stayed/deferred […] till further orders".8

C. CONSTITUTION OF THE ARBITRAL TRIBUNAL AND NOTIFICATION OF AGENTS AND COUNSEL

14.
In its Notification and Statement of Claim, Italy appointed Professor Francesco Francioni as arbitrator pursuant to Annex VII, Article 3, subparagraph (b), to the Convention.9
15.
By note verbale dated 24 July 2015, India appointed H.E. Judge Patibandla Chandrasekhara Rao as arbitrator pursuant to Annex VII, Article 3, subparagraph (c), to the Convention.
16.
Pursuant to Italy's request dated 8 September 2015, having consulted the Parties on 30 September 2015 during a meeting in Hamburg, the President of ITLOS appointed H.E. Judge Jin-Hyun Paik and H.E. Judge Patrick Robinson as arbitrators, and H.E. Judge Vladmir Golitsyn as arbitrator and President of the Arbitral Tribunal pursuant to Annex VII, Article 3, subparagraphs (d) and (e), to the Convention.
17.
By letter dated 9 October 2015, the President of the Arbitral Tribunal informed the Secretary-General of the PCA that the Parties had agreed that the PCA should act as Registry in the present Arbitration. By letter of 12 October 2015, the Secretary-General of the PCA confirmed that the PCA was prepared to act in this capacity.
18.
Italy appointed the following Agent and nominated the following counsel to receive communications for the present proceedings:

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

19.
India appointed the following Agent and nominated the following counsel to receive communications for the present proceedings:

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

20.
On 7 August 2017, India informed the Arbitral Tribunal of the following appointments in place of Dr. Chadha, Mr. Mukul, and Dr. Sharma as Agent, Co-Agent, and Deputy Agent, respectively:

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

21.
By letter dated 12 October 2018, the Arbitral Tribunal informed the Parties that H.E. Judge Patibandla Chandrasekhara Rao had passed away on 11 October 2018. The Arbitral Tribunal invited India to appoint a substitute arbitrator pursuant to Article 6 of the Rules of Procedure for the Arbitration adopted by the Arbitral Tribunal, dated 19 January 2016 (as amended) (hereinafter the "Rules of Procedure").
22.
By letter dated 26 November 2018, India conveyed to the Arbitral Tribunal, Italy, and the Registry the appointment of Dr. Pemmaraju Sreenivasa Rao as arbitrator pursuant to Annex VII, Article 3, subparagraph (f), to the Convention, and Article 6 of the Rules of Procedure.
23.
By letter dated 7 June 2019, India informed the Arbitral Tribunal that it appointed Mr. G. Balasubramanian, Joint Secretary (Europe West), Ministry of External Affairs, as Agent in place of Dr. Vishnu Dutt Sharma.
24.
By letter dated 23 April 2020, India informed the Arbitral Tribunal that it appointed Mr. Sandeep Arya, Joint Secretary (Europe West), Ministry of External Affairs, as Agent in place of Mr. G. Balasubramanian.

D. ADOPTION OF THE RULES OF PROCEDURE

25.
On 18 January 2016, a first procedural meeting with the Parties was held at the headquarters of the PCA at the Peace Palace in The Hague, the Netherlands. At that meeting, the procedure to be followed in the Arbitration, including the procedural timetable, were considered.
26.
On 19 January 2016, taking account of the discussion at the first procedural meeting, the Arbitral Tribunal, pursuant to Annex VII, Article 5, to the Convention, adopted its Rules of Procedure.10 On the same date, the Arbitral Tribunal adopted Procedural Order No. 1 concerning the procedural timetable for provisional measures.11

E. PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL ON PROVISIONAL MEASURES

27.
On 11 December 2015, Italy submitted to the Arbitral Tribunal a "Request for the Prescription of Provisional Measures under Article 290, Paragraph 1, of the United Nations Convention on the Law of the Sea" (hereinafter "Italy's Request for the Prescription of Provisional Measures").
28.
On 26 February 2016, India filed the "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" (hereinafter "India's Written Observations on Italy's Request for the Prescription of Provisional Measures").
29.
On 30 and 31 March 2016, a hearing on provisional measures was held at the headquarters of the PCA at the Peace Palace in The Hague, the Netherlands.
30.
On 29 April 2016, the Arbitral Tribunal, having considered the Parties' oral and written pleadings and the Parties' responses to questions posed by the Arbitral Tribunal during the hearing, delivered its Order on the Request for the Prescription of Provisional Measures (hereinafter the "Provisional Measures Order"), unanimously prescribing the following provisional measures:

(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

31.
On 26 May 2016, on the application of Italy pursuant to the Provisional Measures Order, the Supreme Court of India ordered 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.13
32.
On 27 July 2016, Italy filed the "Report of the Government of the Italian Republic on Compliance with the Provisional Measures Order of 29 April 2016", indicating:

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

33.
On the same date, India filed the "Report of the Republic of India on Compliance with the Provisional Measures Order of the Arbitral Tribunal dated 29 April 2016 concerning the 'Enrica Lexie' Incident (The Italian Republic v. Republic of India – PCA Case No. 2015-28)", indicating that, "[p]ursuant to the Order of the Supreme Court, Sergeant Girone after fulfilling the necessary formalities left India on 27th May 2016 and reached Italy on 28th May 2016".15

F. PROCEEDINGS BEFORE THE ARBITRAL TRIBUNAL ON JURISDICTION AND MERITS

1. Revision of the Rules of Procedure

34.
On 7 September 2016, Italy requested an extension of the time limit for the submission of Italy's Memorial as originally set out in Article 9 of the Rules of Procedure, from 16 September to 30 September 2016. On 8 September 2016, India confirmed that it had no objection to Italy's request. On 9 September 2016, the Arbitral Tribunal adopted Procedural Order No. 2, granting Italy's request and extending the subsequent time limits accordingly.16
35.
By letter dated 19 May 2017, Italy submitted to the Arbitral Tribunal a proposal as to the procedural calendar for further written pleadings in respect of India's counter-claims. By letter dated 23 May 2017, India confirmed its agreement with Italy's proposal. On 1 June 2017, the Arbitral Tribunal adopted Procedural Order No. 3, ordering that the calendar for the submission of written pleadings set out in Article 9 of the Rules of Procedure, as amended by Procedural Order No. 2, be maintained with further amendments to account for India's counter-claims.17
36.
By letter dated 6 February 2018, Italy requested the Arbitral Tribunal to extend the time limit for the filing of its Rejoinder on Jurisdiction and India's Counter-Claim from 16 February 2018 to 9 March 2018 due to the disclosure by India on 5 February 2018 "of 66 witness statements and 133 additional documents that were the subject of a disclosure request by Italy". By letter dated 8 February 2018, India confirmed that it had no objection to Italy's request. On 12 February 2018, the Arbitral Tribunal adopted Procedural Order No. 4, granting the extension requested by Italy.18
37.
By letter dated 30 April 2019, Italy proposed a modification of Article 23, paragraphs 2 and 3, of the Rules of Procedure on the basis of discussions between the Parties. On the same date, India confirmed its concurrence with Italy's proposed modification. On 16 May 2019, the Tribunal issued Procedural Order No. 7, amending the Rules of Procedure in accordance with the modification proposed by the Parties.

2. Written Pleadings

38.
On 30 September 2016, Italy submitted its Memorial (hereinafter "Italy's Memorial"), with an expert report prepared by Justice Deepak Verma on Indian law annexed to the Memorial.
39.
On 14 April 2017, India submitted its Counter-Memorial (hereinafter "India's Counter-Memorial"). In its Counter-Memorial, in addition to responding to Italy's Memorial, India also presented counter-claims.
40.
On 11 August 2017, Italy submitted its "Reply on the Merits – Counter-Memorial on Jurisdiction – Counter-Memorial on India's Counter-Claims" (hereinafter "Italy's Reply"), with a second expert report prepared by Justice Deepak Verma on Indian law annexed to the Reply.
41.
On 15 December 2017, India submitted its "Rejoinder on the Merits – Reply on Jurisdiction – Reply to Italy's Counter on India's Counter-Claims" (hereinafter "India's Rejoinder").
42.
On 9 March 2018, Italy submitted its "Rejoinder on Jurisdiction and on India's Counter-Claims" (hereinafter "Italy's Rejoinder").

3. Preparation of Hearing on Jurisdiction and Merits

43.
By letter dated 1 December 2018, the Arbitral Tribunal requested the Parties to consult with each other and to submit a joint proposal regarding the dates of the hearing. On 4 January 2018, the Parties were invited to submit a joint proposal by 19 January 2018.
44.
By letter dated 19 January 2018, Italy submitted to the Arbitral Tribunal a proposal in respect of dates and a schedule for the hearing, which India on the same date confirmed as representing the Parties' "joint proposal".
45.
By letter of 1 February 2018, the Arbitral Tribunal confirmed the hearing dates and schedule set out in Italy's letter dated 19 January 2018.
46.
By letter of 8 June 2018, the Arbitral Tribunal informed the Parties of the names of persons whose testimony the Arbitral Tribunal "presently regards as particularly significant", and invited the Parties to inform it by 22 June 2018 "whether they intend to request leave from the Tribunal to present or call these persons as witnesses at the hearing pursuant to Article 13, paragraphs 3 and 4, of the Rules of Procedure".
47.
By letter of 22 June 2018, Italy submitted its comments, concluding that "it could not properly seek leave from the Tribunal to procure the oral testimony of some or all of those whose Statements have been exhibited as part of the written record". Italy indicated that this was because first, the statements were provided "for a materially different purpose, in materially different circumstances, with the Statements in question being subject to and governed by principles of domestic criminal law"; second, adducing such oral testimony would present considerable practical challenges, as "[n]either Party has presented any of the putative 'witnesses', in the sense of taking responsibility for them and for their evidence"; and, third, there was "an insurmountable obstacle" to the calling as witnesses in the present proceedings of persons whose statements were produced for purposes of criminal investigation in Italy or India, which would raise significant issues going to the due process rights of the defence of the Marines.
48.
By letter of the same date, India submitted its comments, stating that it intended to request "the Tribunal's leave for presenting witnesses", and requesting that "the witnesses identified in the Letter from the Italian side be called and made available for testimony/examination, with further request of allowing, if the need be, to call additional witnesses from the Italian side".
49.
By letter dated 6 July 2018, India submitted additional comments in response to Italy's comments of 22 June 2018, stating that it did "not consider that any of [Italy's] concerns are well-founded". India argued that "the Arbitral Tribunal is fully entitled to request the oral testimony of the individuals who have been identified in the Secretariat's letter of 8 June", and disagreed with Italy's proposal that "the Arbitral Tribunal identify the precise issues on which it would like oral testimony and request the Parties to produce new, sworn and supported witness statements". India also took the view that there was no risk that the calling of witnesses would taint criminal proceedings against the Marines.
50.
By letter dated 18 July 2018, Italy responded to India's comments of 6 July 2018, arguing, first, that "[s]tatements taken by or made to the Indian Police and other Indian criminal investigation authorities as part of a criminal investigation have a special status under Indian criminal law", which testimony in the present arbitration would not enjoy, and, second, that "the Indian provenance of these Statements holds the remarkable prospect, if witness testimony is adduced, of India endeavouring, through cross-examination, to impeach the evidence of witnesses whose Statements India has itself recorded as part of its own criminal investigation processes".
51.
By letter dated 26 July 2018, India reacted to Italy's comments of 18 July 2018, pointing out that "under Article 12 of the Rules of Procedure, each Party has the burden of proving the facts it relies on, and that the Tribunal is empowered to determine the admissibility, relevance, materiality and weight of the evidence adduced". It also asserted that "[t]his obviously extends to assessing the probative value of the witness statements that each Party has submitted, an exercise that would undoubtedly benefit by hearing the testimony of certain of these individuals at the hearing". It added that "[m]oreover, Article 23(2) of the Rules of Procedure enables the Tribunal, after consultation with the Parties, to make such arrangements as may be necessary for the protection of information and the maintenance of confidentiality for parts of the oral hearings".
52.
On 30 July 2018, the Arbitral Tribunal, taking into account the Parties' views, and having regard to Annex VII, Article 6, to UNCLOS, adopted Procedural Order No. 5. The Tribunal observed that it was empowered to call witnesses and hear their evidence at the hearing, should it deem so appropriate, and noted that the Parties had "acknowledged the Arbitral Tribunal's authority to that effect". The Arbitral Tribunal stated that, on the basis of statements adduced by the Parties with their written pleadings, it had determined that the following persons would be called as witnesses of the Arbitral Tribunal (hereinafter "Tribunal Witnesses") to give evidence at the hearing: (i) Mr. Umberto Vitelli, on 15 February 2012, Master of the "Enrica Lexie" (hereinafter "Captain Vitelli"); (ii) Mr. Carlo Noviello, on 15 February 2012, Master Supernumerary of the "Enrica Lexie" (hereinafter "Captain Noviello"); (iii) Mr. Fredy J., on 15 February 2012, captain and owner of the "St. Antony" (hereinafter "Captain Fredy"); (iv) Deputy Inspector General (hereinafter "DIG") [REDACTED], on 15 February 2012, Commandant and Staff Observer at Coast Guard Air Enclave at Kochi (hereinafter "DIG [REDACTED]"); and (v) Commandant [REDACTED], on 15 February 2012, Assistant Commandant and Boarding Officer of the Indian Coast Guard Ship (hereinafter "ICGS") "Lakshmibai" (hereinafter "Commandant [REDACTED]"). In the Arbitral Tribunal's view, the oral testimony of these persons could "assist it in further clarifying the events that have given rise to the present arbitration conducted pursuant to Annex VII to UNCLOS".
53.
The Arbitral Tribunal clarified that its decision to call Tribunal Witnesses was "without prejudice to the Parties' rights pursuant to Article 13, paragraphs 3 and 4, of the Rules of Procedure to call witnesses of their own". In addition, noting Italy's concern that the statements in question "were not 'provided' specifically to the Arbitral Tribunal", it concluded that this did not exclude that they might "form the basis of the examination of witnesses called by the Arbitral Tribunal". The Tribunal stated that it would welcome receiving from the Tribunal Witnesses, "a short supplemental statement setting out their recollection of the events of 15 February 2012 for purposes of the present proceedings".
54.
In the Order, the Arbitral Tribunal also gave directions as to the examination of Tribunal Witnesses at the hearing, and amended the hearing schedule to accommodate the examination of Tribunal Witnesses. Finally, the Arbitral Tribunal invited the Parties to consult with each other in respect of the implementation of the Procedural Order, in particular, in respect of contacting and transmitting the Tribunal Witnesses; examination of the Tribunal Witnesses; and the confidentiality arrangements that may be necessary at the hearing in respect of witness testimony.
55.
By letter dated 31 August 2018, the Parties reported to the Tribunal on the results of their consultations pursuant to Procedural Order No. 5 in respect of the implementation of the Order. In the letter, the Parties presented their joint views as to the detailed procedure for calling and examining Tribunal Witnesses at the hearing. The Parties also informed the Tribunal that they disagreed as to whether witness testimony should take place in confidential session, and whether the Parties should be precluded from using the witness testimony for any purpose in connection with post-Award criminal proceedings.
56.
On 14 September 2018, the Arbitral Tribunal, taking into account the Parties' views, adopted Procedural Order No. 6 addressing the modalities of making contact with Tribunal Witnesses before the hearing, examination of the Witnesses at the hearing, and the confidentiality arrangements to be adopted. The Arbitral Tribunal confirmed that, in accordance with the Parties' agreement, Italy would make initial contact with Captain Vitelli and Captain Noviello, and India would make initial contact with DIG [REDACTED], Commandant [REDACTED], and Captain Fredy, "to transmit to these individuals the Tribunal's request to testify at the hearing as Tribunal witnesses". The Arbitral Tribunal directed the Parties that, following that initial correspondence, any contact with the Tribunal Witnesses in respect of their attendance of the hearing should occur through the Registry. The Arbitral Tribunal also directed that the Parties should not discuss with the Tribunal Witnesses the positions espoused by Italy or India in the present arbitration in respect of questions of fact or law. The Arbitral Tribunal finally determined the sequence of examination of the Tribunal Witnesses.
57.
With respect to confidentiality arrangements, the Arbitral Tribunal directed that "the portion of the hearing during which witnesses are examined shall not be open to the public". Regarding the confidentiality of the transcripts of portions of the hearing dedicated to witness examination, the Arbitral Tribunal resolved to make a determination in this regard following the completion of the hearing.
58.
By letter dated 27 September 2018, the Arbitral Tribunal informed the Parties that the hearing, which was scheduled to take place in autumn 2018, had been postponed. By letter dated 26 October 2018, the Arbitral Tribunal requested the Parties to keep in reserve the period from 8 July 2019 to 20 July 2019 as tentative dates for the hearing. On 30 November 2018, the Arbitral Tribunal confirmed these dates.
59.
As noted in paragraph 37 above, in light of subsequent communications from the Parties, the Arbitral Tribunal, by Procedural Order No. 7 dated 16 May 2019, amended Article 23, paragraphs 2 and 3, of the Rules of Procedural concerning the transparency regime for the hearing. On the same date, the Tribunal issued Procedural Order No. 8, confirming that the hearing would take place from 8 July 2019 to 20 July 2019.

4. Hearing on Jurisdiction and Merits

60.
The Hearing on Jurisdiction and Merits took place from 8 to 20 July 2019 (hereinafter the "Hearing") at the headquarters of the PCA at the Peace Palace in The Hague, the Netherlands. In accordance with Procedural Order No. 7, the Hearing was not generally open to the public. The opening statements presented by the agents for the Parties, however, were webcast live on the Internet and published on the PCA case repository after the Hearing.
61.
The following were present at the Hearing:

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

62.
On 8 July 2019, the agents for both Parties delivered brief opening statements. The opening statements were followed by the first round of oral argument of Italy from 8 through 10 July 2019.
63.
India presented its first round of oral argument from 11 through 13 July 2019.
64.
On 15 July 2019, the Tribunal heard the witness testimonies of Captain Vitelli, Captain Noviello, and Captain Fredy. Captain Vitelli and Captain Noviello gave their witness testimonies in Italian, while Captain Fredy gave his testimony in Tamil. The testimonies were simultaneously interpreted into English.
65.
On 16 July 2019, the Tribunal heard the witness testimonies of DIG [REDACTED] and Commandant [REDACTED]. The witnesses gave their testimonies in English.
66.
The witness testimonies were followed by a second round of oral argument and closing statements of the Parties, which were delivered on 18 and 20 July 2019, respectively.

II. THE PARTIES' SUBMISSIONS

67.
The Parties, in their written and oral pleadings, have made the following submissions to the Arbitral Tribunal.

A. SUBMISSIONS IN THE PARTIES' WRITTEN PLEADINGS

1. Submissions of Italy

68.
In its Memorial, Italy requests the Arbitral Tribunal to adjudge and declare that:

(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

69.
Italy also requests the Arbitral Tribunal to 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 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

70.
In its Reply and Rejoinder, Italy also requests the Arbitral Tribunal:

(1) To dismiss India's objections to the jurisdiction of the Tribunal with respect to Italy's Claims 1(a), 1(f), and 1(h); and

(2) To dismiss India's counter-claims in their entirety and all requests consequential on them.21

2. Submissions of India

71.
In its Counter-Memorial, with the caveat that it reserves the right to amend or supplement its Submissions, India requests the Arbitral Tribunal to:

(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

72.
Regarding its counter-claims, India requests the Arbitral Tribunal to adjudge and declare that:

(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

73.
In its Rejoinder, with the caveat that it reserves the right to amend or supplement its submissions, India requests the Arbitral Tribunal to:

(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

74.
Regarding its counter-claims, India also requests the Arbitral 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.25

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 following 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

77.
The Arbitral Tribunal will now summarise the factual background of the case to provide context to the subsequent discussion. Many of the facts giving rise to the present Arbitration are undisputed between the Parties, as is evident from concurrent factual statements made by the Parties in their pleadings or statements made by one Party that are not contested by the other Party.
78.
In outlining the factual background, the Arbitral Tribunal also restates selected documentary evidence and excerpts of testimony given before the Arbitral Tribunal at the Hearing. The Arbitral Tribunal will summarise the Parties' positions in respect of disputed facts in Parts V and VI.

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.26
80.
The "Enrica Lexie" had an overall length of 243.8 metres, a moulded breadth of 42 metres,27 a draught28 of 14,822 metres and a keel-to-mast height of 49 metres.29 Its height from sea level to the bridge when unloaded was 26 metres.30 Its maximum speed was 14 knots.31
81.
On 4 February 2012, the "Enrica Lexie" departed Singapore after stopping there for bunkering.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.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 Republic34 (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".35 Accordingly, the role of the VPDs on board the vessel was to protect the safe navigation of the vessel.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".37
83.
Article 5(6bis) of the Italian Law on VPDs amended the Italian Military Code to include amongst the competences of the Italian Navy "safeguarding and protection of national interests and maritime sea-lines beyond the outer limit of the territorial sea, including as regards the fight against piracy".38 Flowing from this, under Article 5(2), VPDs were serving members of the Italian Navy or other Italian Armed Forces who operated in conformity with the directives and the rules of engagement issued by the Italian Ministry of Defence.39
84.
In June 2015, Italy repealed the provisions that allowed Italian ship owners to request protection from VPDs, following the decline in the number of piracy attacks.40
85.
The Master of the "Enrica Lexie" was Captain Umberto Vitelli, joined by Master Supernumerary Captain Carlo Noviello. Captain Noviello had more than 30 years of experience as a mariner.41 Captain Noviello had been asked to join the "Enrica Lexie" so that the command of the vessel would meet the requirements of oil companies for experience.42 Other relevant crew aboard were "Second Officer Sahil Gupta, Chief Mate and Ship Security Officer James Mandley Samson Victor, and Able Seamen Ayyaz Yusuf Kumandan and Narendrakumar Fulbaria".43
86.
On 14 February 2012, the "Enrica Lexie" left Galle and was destined for Port Said, Egypt.44

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")),45 the "Enrica Lexie" was approximately 20 nautical miles from Alleppey (Alappuzha), India, navigating at a speed of 12 knots.46 At around that time, Captain Vitelli was seated at the computer position on the bridge corresponding with the charterer and shipowner.47 Second Officer Sahil Gupta monitored the controls under the supervision of Captain Noviello.48
88.
Captain Noviello testified that the "Enrica Lexie" had veered off course by 8 degrees to starboard.49 Second Officer Gupta therefore steered the "Enrica Lexie" 8 degrees to port to return to the original course.50
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".51 The craft was on the starboard side of the ship.52 Once the craft was spotted, Second Officer Gupta steered an additional 2 degrees to port.53 Captain Noviello further testified that "in the meanwhile the helm had been switched to manual steering to allow for evasive manoeuvers".54
90.
Captain Noviello informed Sergeant Girone, the VPD member on duty on the bridge at the time, of the craft on the radar. Captain Noviello and Sergeant Girone, together with Sergeant Latorre, Mr. Gupta, and Mr. Fulbaria monitored the craft through binoculars.55
91.
The entry made in the Log Book maintained by Captain Vitelli (hereinafter the "Log Book") reads that the craft "seemed to be a fishing boat".56 In a declaration made four days after the incident by Captain Noviello, he stated that the craft "appeared to be a fishing boat about 12 meters in length".57 In addition, Sergeant Latorre stated in the context of a naval investigation in India a few days after the incident that the craft:

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

92.
According to Captain Noviello, when the small craft was between 1 and 1.5 nautical miles away, the "Enrica Lexie" attempted to establish contact by way of a call on channel 16 of the VHF communication system, to no avail.59
93.
According to Sergeant Latorre's written statements, at approximately 16:00 SMT/16:30 IST, he donned his personal protection equipment, activated radio communication with other members of the VPD, and positioned himself on the starboard wing of the bridge.60 Sergeant Girone and Lance Corporal Fontana (the VPD member who was about to replace Sergeant Girone on the command bridge) also wore their protection equipment.61
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".62 He also waved his weapon, in order "to signal the presence of military personnel onboard".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".64 Sergeant Girone joined Sergeant Latorre in showing his weapon by holding it above his head,65 while Lance Corporal Fontana, "continued to monitor the approaching craft on the navigation radar".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.67
96.
The small craft maintained its course and speed, approaching the "Enrica Lexie".68 Sergeant Girone claims that, when it was at a distance of 300 metres, he saw through his binoculars that "at least two members of the crew were equipped with long-barrel rifles slung over their shoulders, with a posture clearly aimed at boarding [the "Enrica Lexie"]".69 Captain Noviello also testified that he saw two men aboard the small vessel with "a black belt across their shoulders […] like the ones that hunters use to go hunting".70 In his statement before the Deputy Public Prosecutor of Rome in 2012, Captain Noviello stated that "the boat had a dozen fenders on the outside" which made him wonder "how come they have the fenders on when sailing so far out".71 He further notes that "since I could not see any fishing net or fish containers, I didn't understand why such a small boat was 20 miles from the coast".72
97.
When the craft was at a distance of 300 metres from the "Enrica Lexie", Sergeant Latorre fired four rounds of a mix of tracer and ordinary bullets.73
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",74 he heard shouting on the starboard side.75 Captain Vitelli stated that he "rushed to the control panel to ensure that the ship is on hand steering",76 and that he "saw a vessel that looked like a fishing boat at 80 to 100 metres, as if it wanted to collide".77 Captain Vitelli also "heard shots and saw a large amount of water rise up".78
99.
Captain Vitelli "sounded the general emergency alarm by bell, by foghorn and announced" three times on the public address system: "We are under pirate attack. This is not a drill".79 He sent the "Enrica Lexie" crew into the engine room, known as the citadel, for shelter,80 and warned the crew on the bridge "not to go near the glass windows".81 The "Enrica Lexie" crew withdrew into the citadel, and only the VPD marines, Captain Vitelli, Captain Noviello, Mr. Victor (SSO), and Mr. Kumandan (Sailor Helmsman) remained on the bridge.82
100.
Captain Vitelli increased the speed of the "Enrica Lexie" from 12 to 14 knots, the maximum speed of the vessel.83 More precisely, Captain Vitelli states in this regard:

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

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.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".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".87 The "Enrica Lexie" was positioned at 09º 20.54' N 075º 59.31' E. Its course was 331º, and its speed was 14 knots.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.89
104.
At 16:30 SMT/17:00 IST, Captain Vitelli considered the situation as "under control". Later, at 17:00 SMT/17:30 IST, Captain Vitelli ended the alert, and Sergeant Latorre "declared the incident closed". The "Enrica Lexie" crew left the citadel.90

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.91 The "St. Antony"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.93 It was owned by Captain Fredy, an Indian national from the State of Tamil Nadu.94 The boat was registered in the State of Tamil Nadu under Registration Number TN/15/MFB/20895 but apparently flew no visible Indian flag.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.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".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".99
108.
In an affidavit sworn on 27 April 2012, Captain Fredy states:

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

109.
According to Captain Fredy's testimony at the Hearing, he had been steering until 16:00 SMT/16:30 IST, at which point, "Jelastine replace[d] [him] from the steering and ask[ed] [him] to sleep".101 Mr. Jelastine did not have a licence to drive the boat.102 Captain Fredy adds that "it was 4.10 when [he] lay down".103 Captain Fredy further states:

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

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".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".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".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.108
111.
According to Captain Fredy's testimony, none of the persons on the "St. Antony" was carrying arms.109 At the Hearing, when the Arbitral Tribunal asked Captain Fredy: "what kind of visible equipment was the St. Antony carrying on 15th February",110 he replied: "[a] small knife to cut the fish".111
112.
According to Captain Fredy, two crew members of the "St. Antony", Mr. Jelastine and Mr. Pinku, were hit and killed by bullets.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".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".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".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".116
113.
Captain Fredy adds that "[t]he firing had continued approximately for two minutes", when the ship was approximately 200 meters away from the "St. Antony", and that "[o]n firing, gas leaked out from the cylinders, which were kept atop the boat and in the wheel house, as the firing broke the hose of the same".117
114.
Captain Fredy testified that he then took over the steering,118 and "abruptly helmed the boat away".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".120
115.
After slowing down, Captain Fredy explains, he "checked Jelastine first, [and] when [he] held Jelastine['s] hand and saw, he had died".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".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".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".124
117.
After slowing down, Captain Fredy informed other boats through VHF that "[t]here was firing on our boat".125 He also informed other persons, including his brother-in-law, and asked them to report the matter to the police.126

C. CHRONOLOGICAL ACCOUNT OF THE IMMEDIATE AFTERMATH OF THE INCIDENT

118.
The Arbitral Tribunal will now set out the chronology of events occurring in the aftermath of the shooting incident. Some of these events, and in particular the circumstances causing the "Enrica Lexie" to change course to head to Kochi, are disputed between the Parties. The Parties' positions in this regard are summarised in detail in Part V, Section V.B.1(a) below.

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.127
120.
At 16:23 SMT/16:53 IST, Captain Vitelli sent an SSAS message, communicating the "nature of distress" as a "piracy/armed attack".128
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.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").130
123.
At 16:30 SMT/17:00 IST, Captain Vitelli considered the situation to be "under control".
124.
Subsequently, at 16:43 SMT/17:13 IST, CINCNAV informed the United Kingdom Marine Trade Operations (hereinafter "UKMTO") by e-mail that "Italian merchant vessel Enrica LEXIE in PSN 09°20N – 075°59E has been approached by a boat with 5 armed suspect pirates".131
125.
At 17:00 SMT/17:30 IST, Captain Vitelli ended the alert, and Sergeant Latorre "declared the incident closed". The "Enrica Lexie" crew left the citadel.132 At this point, "once the alarm time was over", the "Enrica Lexie" resumed its intended journey.133 At the same time, CINCNAV reported the incident involving the "Enrica Lexie" to various officials "including the Office of the Chief of Staff of the Italian Navy (MARISTAT)".134
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.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.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".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.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)".139 Coast Guard District HQ 4 then passed on the information to the Maritime Rescue Coordination Centre (hereinafter "MRCC") Mumbai.140
128.
At 17:20 SMT/17:50 IST, Coast Guard District HQ 4 informed DIG [REDACTED] of the Coast Guard Air Enclave at Kochi (hereinafter "CGAE"), who flew the Dornier aircraft stationed at Indian Naval Ship (hereinafter "INS") "Garuda", to "stand by ready for a launch".141 The Coast Guard District HQ 4 also informed Commandant [REDACTED] aboard ICGS "Lakshmibai", and the ICGS "Samar", which was already at sea, of the incident and instructed them to "stand by".142
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".143 The ICGS "Samar" "was diverted to proceed with best speed to areas of incident".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".145
130.
At 17:47 SMT/18:17 IST, by e-mail, Captain Vitelli reported the incident to Fratelli D'Amato SpA, to the nearest Italian naval vessel in the area (the "Grecale"), to UKMTO, and to the Maritime Security Centre – Horn of Africa (hereinafter "MSCHOA").146
131.
At approximately 18:30 SMT/19:00 IST, MRCC Mumbai communicated with the "Enrica Lexie" by telephone and spoke to Captain Noviello and Mr. Gupta. The Log Book records in this regard:

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

132.
At 18:30 SMT/19:00 IST, the copy of the SSAS message issued by the "Enrica Lexie" as well as the vessel's technical description were communicated by MRCC Rome 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. As noted above, the message indicated the "nature of distress" as "[p]iracy/armed attack".148
133.
By 18:40 SMT/19:10 IST, MRCC Mumbai, using the "AIS [Automatic Identification System] and LRIT [long-range identification and tracking]", had indicated that the "Enrica Lexie" was the "suspected vessel" and found that the "Enrica Lexie" was at position "243 Kochi Lt 37 [nautical] miles, about 34 [nautical] miles" from the position of the incident.149
134.
At 18:50 SMT/19:20 IST, the CGAE received "the name and type of vessel involved in the firing" from Coast Guard District HQ 4.150
135.
At 19:00 SMT/19:30 IST, Sergeant Latorre called CINCNAV regarding the "request for collaboration" that MRCC Mumbai had submitted via telephone to the Master of the "Enrica Lexie".151 At 19:05 SMT/19:35 IST, Captain Vitelli also communicated by telephone with CINCNAV.152
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".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.154 INS "Kabra" also sailed out.155

2. The "Enrica Lexie"'s Change of Course

137.
The Log Book records that, "at 1915 hrs we changed course, heading toward Cochin".156
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.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.158
139.
DIG [REDACTED] reports that the "Enrica Lexie'"s charted course was "supposed to be 345" but at this point, the vessel was instead "doing a east-northeasterly course… [at] about 040".159 Captain Vitelli states, "at the moment [that the CGAE called] I was changing route".160 However, Captain Vitelli avers that while, indeed, the "Enrica Lexie" was turning, it was not yet navigating directly for Kochi; rather, the ship directed course toward a point "across from Kochi; that is to say, when the course with respect to the port of Kochi was on the side of the ship".161
140.
At 19:20 SMT/19:50 IST, the Indian Coast Guard Dornier aircraft located and arrived above the "Enrica Lexie" at 09° 51.6' N 075° 37.5' E, "beyond India's territorial sea".162 The Dornier aircraft "encircled" and "contacted" the "Enrica Lexie" over VHF in channels 16 and 10.163
141.
At 19:20 SMT/19:50 IST, four Indian policemen "reported [to] DHQ-4 for embarking onboard" the ICGS "Lakshmibai" in advance of setting sail.164 According to the testimony of Commandant [REDACTED], prior to setting sail, the ICGS "Lakshmibai" was "not aware of the name of the ship" and had no orders to intercept any specific vessel.165 Rather, the ICGS "Lakshmibai" was under general orders to interrogate vessels at sea. According to Commandant [REDACTED], police officers were brought on board because there had been a "firing incident", which made it a "police matter, not a Coast Guard matter".166 At 19:30 SMT/20:00 IST, the ICGS "Lakshmibai" set sail out of Kochi, and approximately fifteen minutes thereafter, conducted mock "boarding drills" which lasted around two to three minutes.167
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".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.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.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.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 Mumbai172

146.
As set out in Part V, Section B.1 below, Italy and India disagree as to whether the message from MRCC Mumbai was received before or after the "Enrica Lexie" had changed course.
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".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.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 [REDACTED]: "We contacted them continuously over VHF. The ship altered the course towards Kochi and we shadowed it to Kochi anchorage till 22.30 hrs".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".176
149.
The "Enrica Lexie" arrived at Kochi anchorage at 21:18 SMT/21:48 IST and began to drop anchor at that time, at position 09º 56.0' N 076º 04.1' E, "within India's territorial sea".177 The "Enrica Lexie" finished anchoring at 22:05 SMT/22:35 IST, 4.5 nautical miles off the shore of Kochi, at position 09º 56.19' N 076º 07.06' E.178 ICGS "Samar" also reached the area that night.179
150.
Captain Noviello testified that the Indian Coast Guard assured the "Enrica Lexie" through VHF immediately prior to mooring that they would not "waste more than six hours' time".180 According to him, however, the Coast Guard failed to board the "Enrica Lexie" that night, stating that the sea was too rough.181
151.
The Dornier aircraft remained above the "Enrica Lexie" until 22:45 SMT/23:15 IST.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".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".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".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.186
156.
On 16 February 2012, at 9:30 IST, the ICGS "Lakshmibai" was instructed to board the "Enrica Lexie" with a "boarding party" constituted of Commandant [REDACTED], 36 police officers, including the assistant commissioner of police, and three commandos (hereinafter the "Boarding Party").187
157.
Between 10:30 and 11:30 IST,188 the Boarding Party boarded the "Enrica Lexie" and commenced their investigation. According to the testimony of Commandant [REDACTED], the Boarding Party boarded the "Enrica Lexie" unarmed, except for a gunnery sailor.189 He also testifies that at approximately one hour later, another police officer boarded the "Enrica Lexie" armed with a pistol.190
158.
According to the Log Book, the Coast Guard asserted that the incident came "under the jurisdiction of their territorial waters".191 Further, the Coast Guard "informed [those on the "Enrica Lexie"] that they were under investigation for the murder of the two fishermen".192 Captain Vitelli and Sergeant Latorre declined to provide details of the incident "until the Italian Consul General arrived from Mumbai".193
159.
According to the testimony of Commandant [REDACTED], he engaged in a ten to fifteen minute discussion with the Marines attempting to convince them to come inside the harbour for investigation.194 Sergeant Latorre indicated that the VPD is "exclusively answerable to Italian Judicial Authorities" and that the Italian authorities were investigating the incident.195 Sergeant Latorre submitted to the Boarding Party a written statement that the Marines aboard the ship were answerable solely to Italian judicial authorities.196 The document contains the following language:

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

160.
However, upon further "interrogation" by the Boarding Party, Captain Vitelli submitted the crew list, the Last Port clearance, Seamen books of the crew, and the identification cards of the Italian marines.198 An accounting of the weapons aboard the ship was also taken by the Boarding Party, and, according to the Boarding Officer's Report, "[c]ontinuous pressure was maintained on the crew and master to furnish details of the weapons and surrender them".199
161.
According to Captain Vitelli, the Kerala Police seized and copied the Voyage Data Recorder ("VDR") hard disk.200
162.
According to the inspection/detention memorandum completed by Commandant [REDACTED], by 11:30 IST, Commandant [REDACTED] had "formally detained" the "Enrica Lexie".201 At 17:32 IST, the Indian Ministry of External Affairs sent a facsimile message to Commandant [REDACTED] with instructions to bar the "Enrica Lexie" from leaving the Kochi anchorage and to bring the ship into port.202
163.
Soon thereafter, at 18:18 IST, Consul of Italy Giampaolo Cutillo arrived at the "Enrica Lexie", and negotiations between the Boarding Party and the crew and Marines began. During these negotiations, the Indian authorities invited the "Enrica Lexie" to come into port. Following the meeting, Captain Vitelli indicated that the "Enrica Lexie" intended to stay moored where it was. However, the Log Book indicates that it was "made clear that the invitation" to enter Kochi port "is actually an order".203 The Italian authorities advised the Master, crew, and VPD of the "Enrica Lexie" to cooperate with the Indian agencies in the investigation.204 It is Italy's position that the VPD Marines, therefore, "could not 'freely accept or decline' to enter into India's territorial sea or to be brought into its internal waters and land territory".205

2. Investigations within Kochi Port and Indian Land Territory

164.
After declining several times the Indian authorities' request that it enter the port of Kochi, the "Enrica Lexie" eventually entered the port, "weighed anchor" at 22:35 IST, and subsequently, with the help of an Indian pilot, navigated to Kochi Oil Terminal.206 At approximately 1:40 IST on 17 February 2012, the "Enrica Lexie" "came alongside" Kochi Oil Terminal.207 Subsequently, at 3:30 IST, the Indian Coast Guard and the Boarding Party, after waiting for the arrival of a vehicle from the base, disembarked from the "Enrica Lexie".208
165.
The Indian authorities took the following documents from the "Enrica Lexie":

(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

166.
On 18 February 2012, Captain Vitelli and Sergeant Latorre each signed on board the "Enrica Lexie" a statement that they did "not recognize the photo published by the media of the vessel 'M/P St. Antony' as the boat with which [they] had dealings on 15 Feb 2012".210 Similarly, in his testimony, Captain Noviello questioned whether the "St. Antony" was the craft encountered by the "Enrica Lexie".211
167.
On the morning of 19 February 2012, the Indian police disembarked Captain Vitelli for questioning, which did not result in any details of the incident of 15 February 2012 being provided by the Captain.212 At 10:15 IST, the Indian Mercantile Marine Department,213 boarded the "Enrica Lexie" to commence its investigations. R. Jayaraj, of the Coastal Police Station in Neendakara, Kollam, prepared an inventory listing documents produced by Captain Vitelli and seized by Indian police, namely:

(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

168.
At 16:00 IST on the same day, the Kerala Police escorted the Marines from the "Enrica Lexie" and arrested them at Wellington Island, Kochi Oil Terminal Berth, "on an allegation of murder".215 India contends that it was only at the point of their arrest, and not before, that the Marines claimed for the first time that their "asserted immunities were violated".216 In the Log Book, Captain Vitelli recorded the following regarding the arrest:

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

169.
Several Indian policemen remained aboard the "Enrica Lexie", undertaking their investigation, including investigations by a "ballistic expert" and the preparation of a "seizure memo".218
170.
On 20 February 2012, the "Enrica Lexie" moved from Kochi Oil Terminal to a mooring position in Indian internal waters, approximately 6.2 nautical miles from Kochi, with approximately fifteen Indian policemen remaining on board.219

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.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".221 The "Enrica Lexie" "[sailed] out of Indian waters" on 5 May 2012.222

(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".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.224
174.
On 9 May 2012, the Supreme Court of India gave leave for the Marines to apply for bail. The bail application was rejected by the Chief Judicial Magistrate in Kollam on 11 May 2012.225
175.
On 18 May 2012, the Kerala Police concluded their investigation and "filed in court a 'Final Report' (or 'Charge Sheet') against the Marines", including the crime of murder under Indian law.226
176.
On 19 May 2012, the Court of the Sessions Judge, Kollam, rejected another bail application by the Marines stating that, as the investigation by the Kerala Police had been completed and the Charge Sheet filed, the "proper remedy" was to expedite the trial.227
177.
The Marines were detained in custody until 30 May 2012, when they were granted bail by the High Court of Kerala which contained the conditions that the Marines:228

(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

178.
The Marines remained in Kerala, save for a two-week period in December 2012 and January 2013 when they returned to Italy. Following the Supreme Court Judgment of 18 January 2013, which found that the Union of India, rather than the State of Kerala, had jurisdiction over the Marines, they moved to Delhi.230

(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".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".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]".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.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 2012.235
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.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".237
183.
Subsequent to its judgment, the Supreme Court ordered that the Marines be moved to Delhi subject to similar bail conditions as those required by the High Court of Kerala.238
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.239 In September 2013, the NIA took statements from the crew members of the "Enrica Lexie" regarding the incident.240
185.
On 13 January 2014, the Marines filed an application in the Supreme Court contesting "India's attempt to invoke the provisions of SUA".241 On 24 February 2014, N.S. Bisht, Under Secretary in the Ministry of Home Affairs, provided the opinion of the Law Ministry that "the provisions of the SUA Act are not attracted to this case" and stated that "appropriate steps will be taken to ensure that the charge sheet reflects this opinion",242 which was recorded in an Order of the same date by the Supreme Court.243
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.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.245 The Writ Petition was not finally decided.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
188.
On 5 September 2014, Sergeant Latorre applied for permission to travel to Italy for medical reasons. On 12 September 2014, the Supreme Court granted him permission to return for a three-month period. On 9 December 2014, he applied for an extension, which the Supreme Court granted at a hearing on 14 January 2015, and then at further hearings on 9 April 2015, 13 July 2015, 13 January 2016, and 26 April 2016.248 After the hearing on 26 April 2016, the Supreme Court extended Sergeant Latorre's time in Italy to 30 September 2016.249
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.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.251
190.
On 9 December 2014, Sergeant Girone made an application to the Supreme Court to be allowed to return to Italy.252 He later withdrew the application.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.254
192.
On 7 December 2015, Ambassador Enzo Angeloni, Ambassador of Italy in India, submitted an affidavit to the Supreme Court of India on behalf of Italy, concerning the developments in this Arbitration.255
193.
Following the rendering by the Arbitral Tribunal on 29 April 2016 of the Provisional Measures Order,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).257 Sergeant Girone returned to Italy on 28 May 2016 and remained in Italy during the present Arbitration.258

E. THE ITALIAN INVESTIGATION AND PROCEEDINGS

194.
Italy contends that following receipt by CINCNAV of the initial reports259 from Sergeant Latorre, CINCNAV issued two "flash reports"260 to the Interforce High Command, and Italy began exercising its jurisdiction over the "Enrica Lexie" and the Marines with respect to the "Enrica Lexie" incident.261 "[W]ithin hours"262 thereafter, pursuant to Decree no. 90/2010 of the President of the Italian Republic, a "summary investigation" was initiated by the Italian Navy for the purpose of collecting relevant information and evidence.263 The administrative aspect of the investigations was undertaken by the Italian Ministry of Defence, while the Rome Public Prosecutor and the Rome Military Prosecutor executed investigations at the judicial level.264

1. The Piroli Report

195.
On 17 February 2012, Division Admiral Alessandro Piroli, Chief III Division GP (General Planning) – Navy Staff, was appointed as Investigating Officer. His investigation took place both in Kochi, between 18 February and 8 March 2012, and in Italy, in the subsequent two months.265 It is Italy's position that Admiral Piroli's investigation "was not constrained or shaped" by the reports to CINCNAV, which described the incident with reference to a pirate attack.266 The objectives of his investigation were to collect information relating to the incident and its causes; to review existing documents and statements made by those involved in the incident; to verify the technical and operational reference framework as well as the juridical one (Italian law and international law); to inspect the vessels and other evidence relating to the incident, including the weapons and ammunition assigned to the VPD team on board the Enrica Lexie, along with the ship logs; and to acquire statements from those involved and relevant photographic and other evidence.267
196.
Subsequently, he produced the results of his investigation in a Summary Investigation Report entitled "Attempted Pirate Attack against Merchant Vessel Enrica Lexie – 15 February 2012. Death of Indian Citizens", dated 11 May 2012 (hereinafter the "Piroli Report"), and submitted it to the Italian Government.268
197.
In issuing the Piroli Report, Admiral Piroli was instructed to therein "highlight considerations concerning objective and subjective causes that originated the incident; also to assess whether technical and organisational corrective measures may possibly be adopted in order to prevent similar circumstances from occurring again; and to 'contribute, where possible, to clarify the responsibilities, if any, of VPD personnel concerning the incident'."269 The findings of the Piroli Report were expressed in the form of "preliminary conclusions", which were based on the limited evidence available at the time. Before setting out the conclusions, as a matter of general considerations, the Report observes:

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

198.
With these caveats in mind, the Piroli Report presents inter alia the following preliminary conclusions.
199.
The deployment of VPD Latorre on the "Enrica Lexie" was in accordance with Italian national legislation to counter piracy attacks.271 The incident "took place in the high seas, well outside Indian territorial waters […] within the high piracy risk area".272
200.
While the VPD were informed of an approaching suspicious craft, which was "sailing on a near-collision course" with the "Enrica Lexie", the latter

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

201.
The "approaching manoeuver" of the craft, and its failure to change speed or course despite the visual and sound warnings and warning shots from the VPD "had been perceived as a threat against the ship and its crew".275
202.
Taking into account the statements of the VPDs, their "tactical decisions" were "quick, effective and appropriate in connection with the incident and the assigned mission".276
203.
Finally, according to the Piroli Report, the way in which the "Enrica Lexie" was diverted subsequent to the incident

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

2. Criminal Proceedings by the Rome Military Prosecutor and the Rome Public Prosecutor

204.
On 15 February 2012, pursuant to Article 347(1) of the Italian Code of Criminal Procedure, the Special Operations Group, Anti-Crime Unit, of the Carabinieri of Rome (hereinafter the "Special Operations Group of the Carabinieri")278 reported the incident as "a piracy attack against an Italian-flagged merchant vessel" to the Rome Public Prosecutor. The Rome Public Prosecutor was thereby informed of the presence of a VPD, comprising members of the Italian Navy, on board the vessel.279
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.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".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".282 The Rome Military Prosecutor requested the Special Operations Group of the Carabinieri to conduct a preliminary investigation concerning the incident.283
207.
On 19 February 2012, in accordance with orders from the Rome Military Prosecutor, Captain Vitelli seized VPD marine Lance Corporal Conte's camera, with which he had taken photographs of the incident.284 On 20 February 2012, the Rome Military Prosecutor ordered the seizure of two assault rifles AR SC 70/90, serial numbers respectively 07386 and 45479H, together with the loader and leftover ammunition for each rifle.285 The next day, the Rome Military Prosecutor suspended the seizure until such a point as the "Enrica Lexie" would be released from the custody of the Indian authorities, and appointed Captain Vitelli as guardian of the evidence.286
208.
On 20 February 2012, the Special Operations Group of the Carabinieri sent an assessment of the incident to the Rome Military Prosecutor, based on the report of Sergeant Latorre, and communicated the fact that the Rome Public Prosecutor had instituted criminal proceedings.287
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.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".289

3. Consolidation of Italian Criminal Proceedings under the Rome Public Prosecutor

210.
On 23 February 2012, the Rome Military Prosecutor relinquished jurisdiction over the incident in favour of the Rome Public Prosecutor, who thereafter continued the preliminary investigation.290
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".291 The letters also asserted that the Rome Public Prosecutor had jurisdiction over the matter,292 requested that the Indian authorities provide certain documents and evidence,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."294
212.
On 9 May 2012, the Rome Public Prosecutor examined four members of the VPD who, on the same day, had returned to Italy: Sergeant Voglino, Corporal Andronico, Lance Corporal Fontana, and Lance Corporal Conte.295 During the examination, the Special Operations Group of the Carabinieri seized Corporal Andronico's laptop.296 Subsequently, Captain Vitelli, Captain Noviello, and Pio Schiano Lomoriello, managing director of Fratelli D'Amato SpA, appeared for examination.297
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".298
214.
On 17 September 2012 and 11 January 2013, the Indian Ministry of External Affairs sent notes verbales referring to "the possibility of allowing Italian representatives to participate in the interrogation by India of the two accused and during the deposition of the Ship's master and maritime personnel" and requesting the names of these representatives.299
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.300
216.
The Italian criminal proceedings are currently stayed in accordance with the ITLOS Order on Provisional Measures.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

218.
In its Provisional Measures Order, the Arbitral Tribunal concluded that prima facie it had jurisdiction over the dispute.302 The Arbitral Tribunal considered that, as Italy had alleged the violation by India of various rights conferred upon Italy under the provisions of the Convention, and India had contested such violations, the dispute between them concerned the interpretation or application of the Convention.
219.
At this stage the Arbitral Tribunal must, therefore, first ascertain whether there is a dispute between the Parties, and second, determine whether such dispute concerns the interpretation or application of the Convention.

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".303
221.
Italy claims, as stated in its submissions, that India has acted in a manner inconsistent with several provisions of the Convention and violated Italy's rights under the Convention (see Part II, Sections A.1 and B.1). India rejects all of Italy's claims on the merits. India, on its part, counter-claims, as stated in its submissions, that Italy has violated India's rights under the Convention and breached its obligation to have due regard to India's rights under the Convention (see Part II, Sections A.2 and B.2). Italy rejects all of India's counter-claims on the merits (see Part II, Sections A.1 and B.1).
222.
It is thus evident that there is a dispute between the Parties which has given rise to the present proceedings. The Parties differ, however, in their characterisation of that dispute.

2. Characterisation of the Dispute

(a) Positions of the Parties

223.
Italy submits that the "real issue in the case" and "object of the claim" is the determination of which State is entitled, under the Convention, to exercise jurisdiction over the incident of 15 February 2012 and "over the two marines in relation to the incident".304
224.
In its Memorial, Italy claims that as a result, and in the course, of this incident, India has acted in a manner that is incompatible with certain provisions of the Convention, and that breached or violated other provisions of the Convention. Italy states in the introductory part of the Memorial:

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

225.
During the Hearing, counsel for Italy, Sir Daniel Bethlehem KCMG QC, in setting out Italy's case, stated the following:

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

226.
India, on the other hand, submits 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.307 This, in India's view, means that the dispute is not one concerning the interpretation or application of the Convention,308 and is therefore outside the jurisdiction of the Arbitral Tribunal, because it "is essentially based on a set of rules extraneous to UNCLOS, belonging to general (customary) international law on immunities of States officials".309
227.
During the Hearing, counsel for India, Professor Alain Pellet, provided the following explanation regarding the position of India in the dispute between the Parties:

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

228.
In its Counter-Memorial, India stressed:

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

229.
Italy objects to the late stage at which India raised this general objection to the Arbitral Tribunal's jurisdiction, particularly after India had accepted said jurisdiction subsequent to the provisional measures phase.313 In any event, Italy maintains that the Arbitral Tribunal does have general jurisdiction over this dispute because the "real claim" concerns the interpretation and application of provisions of the Convention.314
230.
In its Counter-Memorial, India also introduced counter-claims alleging that, when the Marines shot at the "St. Antony" and killed the two fishermen on board, who were legitimately exercising their right to fish in India's exclusive economic zone, Italy violated India's rights and breached Italy's obligations under a number of provisions of the Convention.

(b) Characterisation of the Dispute by the Arbitral Tribunal

231.
In order to determine the nature of the dispute submitted to it by the Parties, the Arbitral Tribunal is required, on an objective basis,315 to "isolate the real issue in the case and […] identify the object of the claim".316
232.
In The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China) (hereinafter "South China Sea Arbitration"), the arbitral tribunal observed:

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

233.
A dispute may be characterised in many ways. However, in identifying the real issue in dispute, the applicant's notification and statement of claim instituting the proceedings have particular significance. In Fisheries Jurisdiction (Spain v. Canada), the ICJ observed that, in order to identify its task in any proceedings, the court "must begin by examining the Application"318 and "look at the Application as a whole".319 At the same time, the ICJ observed that, "while giving particular attention to the formulation of the dispute chosen by the Applicant", "it is for the Court itself, to determine on an objective basis the dispute dividing the parties, by examining the position of both parties".320 The ICJ further pointed out in that judgment that, where "uncertainties or disagreement arise with regard to the real subject of the dispute […] or the exact nature of the claims submitted to it", a tribunal "cannot be restricted to a consideration of the terms of the Application alone".321
234.
Thus, while giving particular attention to the formulation of the dispute chosen by the applicant, the position of both parties and their pleadings must be considered. In doing so, a distinction must be made "between the dispute itself and arguments used by the parties to sustain their respective submissions on the dispute".322
235.
The Arbitral Tribunal observes that, notwithstanding their differences in characterising the dispute, the Parties' disagreements on points of law or fact and conflicts of legal views or interests, as they are expressed in the submissions, are related to which State may exercise jurisdiction over the incident involving the "Enrica Lexie" and the "St. Antony" which led, as claimed by the Parties, to the alleged violations of various provisions of the Convention referred to in their respective final submissions.
236.
In its Notification and Statement of Claim instituting the present proceedings, Italy refers to "the dispute concerning the Enrica Lexie Incident",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.324

237.
The Arbitral Tribunal also recalls Italy's description of the dispute contained in Italy's Memorial, quoted in full in paragraph 224 above.
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".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.326
239.
Turning to Italy's submissions as presented in the Notification and Statement of Claim, the Arbitral Tribunal notes that Italy sought specific declaratory relief in respect of the question of immunity.327 That request, however, was but one of several bases upon which Italy substantiated its more general request for a finding that, "by asserting and exercising jurisdiction over the Enrica Lexie and the Italian Marines", India violated the Convention. Indeed, the asserted immunity of the Marines was not the only basis upon which Italy alleges India's exercise of jurisdiction to be contrary to the Convention. On Italy's case, it was conceivable that the dispute between the Parties would be decided without a determination on the question of immunity (such as by a finding by the Arbitral Tribunal that Italy has exclusive jurisdiction over the incident under Articles 87 or 97 of the Convention).
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. The Arbitral Tribunal recalls India's response to Italy's characterisation of the dispute in its Counter-Memorial, quoted in full in in paragraph 228.
241.
In a section of the Counter-Memorial entitled "What the Case Is Really About: The Killing of Its Nationals on the St Antony",328 India elaborates further on that characterisation, making no reference to questions of immunity.
242.
The Arbitral Tribunal observes, in light of the foregoing, that at no point in their written pleadings in this Arbitration does either Party characterise the dispute between them as one primarily relating to 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.
244.
The Arbitral Tribunal thus finds, as it had already concluded on a prima facie basis in the proceedings on provisional measures,329 that there is a dispute between the Parties concerning the interpretation or application of the Convention in the present case.

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.330

B. OBLIGATION TO EXCHANGE VIEWS

246.
Article 283, paragraph 1, of the Convention provides:

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.

247.
The Arbitral Tribunal notes that, when the dispute arose between the Parties, they expeditiously proceeded to an exchange of views at various diplomatic331 and political332 levels, aimed at settling the dispute by negotiations or other peaceful means. The Arbitral Tribunal further notes that both Parties agree that these efforts did not lead to an agreement regarding the settlement of the dispute. The Arbitral Tribunal is consequently of the view that the requirements of Article 283, paragraph 1, of the Convention are satisfied.

C. ADMISSIBILITY OF ADDITIONAL CLAIM OF ITALY

248.
As India contests the timeliness, and therefore admissibility, of the submission of Italy's claim concerning the alleged incompatibility of The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (hereinafter the "1976 Maritime Zones Act") and the 1981 Notification, under the Convention, the Arbitral Tribunal must examine whether this particular claim of Italy forms part of the dispute in respect of which the Parties have proceeded to an exchange of views, in terms of Article 283, paragraph 1, of the Convention. The Arbitral Tribunal shall consider this question in the context of the discussion of this claim (see Part V, Section A.1).

D. ADMISSIBILITY OF COUNTER-CLAIMS OF INDIA

249.
In its Counter-Memorial, India raised several counter-claims, to which Italy responded in subsequent written and oral pleadings. Before addressing the merits of these counter-claims, the Arbitral Tribunal must satisfy itself that such counter-claims fall within its jurisdiction, and that they are admissible in the present proceedings.
250.
India submits in this regard that its counter-claims are admissible.333 India argues that, while the Rules of Procedure do not specifically address counter-claims, they do set out the principle that the Parties enjoy equal treatment and have a full opportunity to present their case.334 India submits that this principle extends to its right to present counter-claims, as it argues is reflected in the practice of the ICJ and ITLOS.335 India refers to Article 98 of the ITLOS Rules, which states that a "party may present a counter-claim provided that it is directly connected with the subject-matter of the claim of the other party and that it comes within the jurisdiction of the Tribunal".336
251.
According to India, its "counter-claims arise out of the same factual matrix as Italy's claims". India states that its counter-claims "concern the same events that occurred on 15 February 2012 that are the subject-matter of the claims [...] although they focus on what happened with respect to the St Antony, which is really at the heart of the case, not the Enrica Lexie".337
252.
India clarifies that it submits its counter-claims without prejudice to its arguments regarding the lack of jurisdiction over Italy's claims, both generally and individually.338
253.
Italy, in its written and oral pleadings, has not raised objections to the Arbitral Tribunal's jurisdiction over, or the admissibility of, India's counter-claims.339
254.
While the Rules of Procedure adopted by the Arbitral Tribunal in consultation with the Parties at the beginning of the proceedings do not expressly provide for, and regulate, the right to present counter-claims, the Arbitral Tribunal has no doubt that arbitral tribunals established pursuant to Annex VII to the Convention have the inherent power to hear counter-claims. This is consistent with the view previously taken by arbitral tribunals in the Annex VII arbitrations of Barbados v. The Republic of Trinidad and Tobago340 and Guyana v. Suriname.341
255.
The Arbitral Tribunal recalls in this regard that Annex VII, Article 5, to the Convention empowers an arbitral tribunal to "determine its own procedure, assuring each party a full opportunity to be heard". The Arbitral Tribunal further observes that the rules of procedure in both alternative fora for the compulsory settlement of disputes under the Convention, the ICJ and ITLOS, make express provision for the filing of counter-claims by respondent States, and there is no reason why respondent States should be in any different position in Annex VII arbitrations. Finally, the Arbitral Tribunal notes that all major arbitral rules of procedure, including the PCA Arbitration Rules 2012 and the PCA Optional Rules for Arbitrating Disputes between Two States, envisage the submission of counter-claims.
256.
It is a general principle of procedural law, consistently applied by international courts and tribunals, that a counter-claim may be admitted only if it comes within the jurisdiction of the court or tribunal concerned and is directly connected with the subject-matter of the claim of the other party. The Arbitral Tribunal finds that these conditions are met in the present case. India's counter-claims raise questions in respect of several provisions of the Convention – notably Articles 56, 58, 87, 90, and 88 – and therefore concern the interpretation or application of the Convention pursuant to Article 288, paragraph 1, of the Convention. Moreover, the counter-claims arise directly from the incident of 15 February 2012 involving the "Enrica Lexie" and the "St. Antony", which forms the basis of Italy's claims. India's counter-claims are accordingly admissible.

E. APPLICABLE LAW

257.
The Arbitral Tribunal observes that Article 293 of the Convention defines the law applicable in the present case. This Article states:

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.

258.
The Arbitral Tribunal notes that the Parties have a disagreement as to the application of Article 293 to the question of the immunity of the Marines, and as to whether such question falls within the jurisdiction of the present Arbitral Tribunal pursuant to Article 288, paragraph 1, of the Convention.342 This matter will be addressed in Part V, Section C.1 below.

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. The Arbitral Tribunal shall address Italy's claims in this order.

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.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.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.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.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.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

265.
The Arbitral Tribunal shall first consider whether it has jurisdiction over Italy's claim regarding the compatibility with UNCLOS 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".348
267.
Consistent with ICJ jurisprudence, India submits that the dispute invoked must have existed, and be crystallised, on the date of the application.349 The existence of a dispute, in turn, "must be assessed on the basis of diplomatic exchanges between the Parties previous to its submission to the Court or tribunal", and "the evidence must show that the Parties 'hold clearly opposite views' with respect to the claimed issue".350
268.
Similarly, India argues, while the conduct of the Parties subsequent to the Notification and Statement of Claim, such as statements made during judicial proceedings, may be relevant, they can only serve to confirm the existence of a dispute, clarify its subject matter, or determine whether the dispute has disappeared as of the time when the Arbitral Tribunal is to make its decision.351 Subsequent conduct alone, India claims, is not sufficient for establishing the existence of the dispute, and cannot crystallise the dispute when, as in this case, it had not crystallised before the Notification and Statement of Claim.352
269.
Applying the law to the facts of this case, India asserts that, not unlike Belgium in "the Hissene Habré case" before the ICJ, Italy "fails to establish that a clear opposition of views between the Parties exists in the present case", and "seeks to manufacture such an opposition of views where there is none".353 In particular, India asserts, Italy "neither in its notification of claims nor at any time before, during its diplomatic exchanges which led to this notification, drew India's attention to the fact that it considered the 1976 act and the 1981 notification unlawful or contrary to the UNCLOS and was requesting the cessation of their application".354
270.
Even though India "by no means denies that both Italy's Statement of Claim and Memorial take another position and now question the compatibility of the 1976 Act and the 1981 Notification with UNCLOS", it asserts that "this is precisely what [Italy] was not entitled to do failing a conflict of views on this matter before the Statement of Claim was made".355 India submits that it was only in its Memorial that Italy "clearly articulated the more far-reaching position that the 1976 Act and the 1981 Notification are in themselves in breach of UNCLOS and that they must be repealed".356
271.
Moreover, India claims, the evidence proffered by Italy to establish the existence of the dispute "shows that both Parties agree that the 1976 Maritime Zones Act and the 1981 Notification are to be, and can be, read in harmony with UNCLOS", and consequently, that "neither the Act nor the Notification can constitute a claim of sovereignty over the EEZ".357
272.
In any event, India maintains, while the Marines and Italy challenged the interpretation of the two domestic laws before Indian courts, "at no time […] were there any questions of annulling the act or notification now in dispute, or terminating or ceasing their application".358 In India's view, there "could indeed be a difference of opinion concerning the interpretation of these instruments; but interpretation on the one hand and contestation of the validity of certain texts on the other hand cannot be equated".359 In this respect, India also considers questions of domestic law to be irrelevant in this matter because "unless expressly referred to, […] international arbitrators[] are not called upon to apply the rules of domestic law any more than [they] have the power to annul or amend them".360 It is for this reason that India considers Justice Verma's expert reports to be irrelevant, and did not deem it necessary to either produce an expert report in response or to cross-examine Justice Verma.361
273.
India concludes that it is also irrelevant whether Italy's claim "arises 'directly out of the question which is the subject-matter' of" its Notification and Statement of Claim, because there was no genuine dispute between Italy and India concerning the legality of the 1976 Maritime Zones Act and the 1981 Notification at the time Italy filed its Notification and Statement of Claim.362
274.
Accordingly, India submits, the Arbitral Tribunal lacks jurisdiction over this claim because the Parties did not hold "clearly opposite views" regarding the compatibility of the 1976 Maritime Zones Act and the 1981 Notification at the time of the Statement of Claim.363

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.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".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"366 prior to 26 June 2015, when the Notification and Statement of Claim was filed.
276.
As an initial matter, Italy does not disagree that in order for there to be a legal dispute, the Parties must hold clearly opposite views with respect to the issue brought before the relevant court or tribunal pursuant to Part XV of the Convention, and that the date for determining the existence of such a dispute is the date on which the application is submitted.367 Italy also submits that, as confirmed by ITLOS and ICJ jurisprudence, "the existence of such a disagreement can be inferred from conduct"368 and "'any statement or documents exchanged between the parties', paying special attention to 'the author of the statement or document, their intended or actual addressee, and their content'."369
277.
Applying the above to this case, and contrary to India's claim, Italy contends that this requirement has been met because the Parties "have held 'clearly opposite views' on the consistency of the Maritime Zones Act 1976 and the 1981 Notification with UNCLOS since 2012".370 In particular, Italy asserts that "the conformity with UNCLOS of the Maritime Zones Act 1976 and the 1981 Notification was raised by Italy at every stage of those proceedings", and that the "juxtaposition of views and interpretations between [the Parties] on this issue emerged early on and remained prominent throughout the domestic proceedings".371
278.
In this regard, Italy points to various oral and written submissions made by Italy and India in the relevant domestic court proceedings, in which, Italy alleges, India and Italy (on behalf of the Marines) take opposing views with respect to the question whether, if the correct Indian law interpretation of the 1976 Maritime Zones Act and the 1981 Notification was that they effected a wholesale extension of the Indian Penal Code beyond India's territorial sea, the 1976 Maritime Zones Act and the 1981 Notification would be incompatible with the Convention.372 In these domestic proceedings in which each State was involved at the highest levels,373 Italy argues, the Parties also took opposing views with respect to the question whether Indian law would prevail in the event that the 1976 Maritime Zones Act and the 1981 Notification were found to be incompatible with the Convention.374
279.
Moreover, while it is true that Italy, in the domestic proceedings, "tried to argue for a read-down of those instruments precisely to avoid a breach of India's obligations under UNCLOS", Italy points out that these "arguments were strongly resisted by the Indian government in the proceedings before its courts" and ultimately rejected by the Supreme Court of India.375 Indeed, according to Italy, in a finding which constitutes binding law in India, the Supreme Court of India rejected the interpretation of the 1976 Maritime Zones Act and the 1981 Notification that would allow them to be read harmoniously with the Convention, and instead adopted an interpretation inconsistent with the Convention.376
280.
On the basis of the above, Italy alleges that there is "evidence [which is] copious and explicit, [and which] flatly contradicts India's contention that 'it cannot be said that India was aware, or could not have been unaware, that Italy was making … an allegation that India was in breach of its obligations' under UNCLOS by effect of the Maritime Zones Act 1976 and the 1981 Notification".377 To the contrary, Italy claims, India was fully aware of Italy's position and "resisted it expressly by pushing for an interpretation of its laws that India knew Italy regarded as inconsistent with UNCLOS".378
281.
Italy further asserts that this evidence shows that the legal dispute had crystallised well before Italy's submission of the dispute to this Arbitral Tribunal, and was and remains a central element in the legal dispute between the Parties.379 This demonstrates, contrary to India's claim, that Italy has maintained a "consistent position […] that, if the correct Indian law interpretation of the 1976 Act and the 1981 Notification is that they effected a wholesale extension of Indian criminal law beyond India's territorial sea, those two instruments would be incompatible with UNCLOS".380
282.
In response to India's claim that Italy quoted selectively from the Parties' submissions in the domestic court proceedings, specifically omitting passages from the Aban Loyd Chiles Offshore Ltd. v. Union of India case, Italy argues that those passages are not relevant to this Arbitration.381 This is because both the High Court of Kerala and the Supreme Court of India have, since 2008, held that the 1976 Maritime Zones Act and the 1981 Notification do effect a wholesale extension of Indian penal law beyond India's territorial sea, and that therefore the interpretation of the two legal instruments as a matter of Indian law, is incompatible with the Convention.382

(b) Admissibility of Claim of Italy

283.
The Arbitral Tribunal must examine, furthermore, whether this particular claim of Italy constitutes a new, additional claim and is admissible.

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".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".384
285.
India argues that, in line with the jurisprudence constante of international courts and tribunals, the Notification and Statement of Claim must set out the subject of the dispute.385 Thus, while the claims made in the Notification and Statement of Claim can be clarified or specified later in the proceedings, any "additional claim must have been implicit [therein], or must arise directly out of the question which is the subject matter of that application".386 This requirement, India alleges, "is all the more compelling in the present case" given that Italy is asking the Arbitral Tribunal "no less than to nullify de facto an Act of Parliament", and is "all the more extraordinary [since] prior to the filing of its Memorial, Italy had never protested against the 1976 Act notwithstanding the fact that the Act was duly published by the Division of the Law of the Sea".387
286.
In this respect, India emphasises that it is necessary to "distinguish between the dispute itself and arguments used by the Parties to sustain their respective submissions to the dispute".388 In India's view, while Italy "might have in principle the right to argue that the act and the [notification] cannot justify India's case […] it cannot indeed make it the subject matter of a claim, of a submission before the Tribunal".389
287.
In addition, while Italy reserved its right to supplement and/or amend its claim and the relief sought as necessary, India maintains that such "reservation is of no effect at all" because it "cannot circumvent the well-established rule that any posterior request or submission must remain within the framework of the initial application or notification".390
288.
In this case, India argues, Italy "indisputably introduces a new dispute of a nature different from the one it initially brought before this Tribunal" bec