(i) The incident was the result of warning shots fired by the Marines at an approaching boat to prevent or avert an attempted pirate attack on the "Enrica Lexie".
(ii) As this incident took place in a maritime area beyond the 12 nautical mile territorial waters of India (and not being an incident attracting the provisions and the authority of India with respect to the contiguous zone, which extends up to 24 nautical miles), Italy contended that it is, at best, an incident of navigation in terms of Article 97, paragraph 1, of the Convention. As such, Italy argued that (a) it has exclusive jurisdiction to institute penal or disciplinary proceedings against the master or any other person in the service of the ship before its judicial or administrative authorities; and (b) in pursuance of Article 97, paragraph 3, of the Convention, no State other than Italy could order arrest or detention of the Italian vessel "even as measure of investigation".
(iii) Accordingly, Italy submitted that any exercise of jurisdiction by India over the incident, on the basis of the 1976 Indian Maritime Zones Act (and the Gazette Notification of 27 August 1981 issued thereunder) and/or other domestic Indian laws (the 1860 Indian Penal Code, the 1973 Criminal Procedure Code and the SUA) is contrary to India's obligations as a State party to the Convention.
(v) The "Enrica Lexie" was called to Indian territorial waters under a false premise and the arrest of the Marines amounted to abduction.
(vi) Italy also submitted, "alternatively" and "without prejudice" to the submissions already made, that India cannot exercise its jurisdiction to prosecute the Marines as they are Italian officials, being part of the Naval judicial police, and were engaged in the discharge of their official functions at the time of the incident. Thus, Italy asserted that the Marines were entitled to immunity under general international law.4
(i) Italy also contended that by "directing and inducing the Enrica Lexie to change course and proceed into India's territorial sea through a ruse, as well as by interdicting the Enrica Lexie and escorting her to Kochi, India violated Italy's freedom of navigation, in breach of UNCLOS Article 87(1) (a), and Italy's exclusive jurisdiction over the Enrica Lexie, in breach of Article 92 of UNCLOS".5
(ii) In addition, by "directing and inducing the Enrica Lexie to change course and proceed into India's territorial sea through a ruse, India abused its right to seek Italy's cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS".6
The negotiation of the Convention involved extensive debate regarding the extent to which disputes concerning its provisions would be subject to compulsory settlement. The distrust with which some participants at the Conference viewed compulsory settlement is evidenced by the inclusion in the final texts of substantial carve outs, in Article 297, for disputes relating to the exercise of sovereign rights and jurisdiction in the exclusive economic zone. It is also apparent in the option, in Article 298(a)(i), for States to exclude the delimitation of maritime boundaries from dispute settlement, subject only to the requirement of compulsory conciliation. Given the inherent sensitivity of States to questions of territorial sovereignty, the question must be asked: if the drafters of the Convention were sufficiently concerned with the sensitivities involved in delimiting maritime boundaries that they included the option to exclude such disputes from compulsory settlement, is it reasonable to expect that the same States accepted that more fundamental issues of territorial sovereignty could be raised as separate claims under Article 288(1)?58
(i) based on a contract of services offered by the Government of Italy to the Italian merchant/cargo vessels, subject to payment of a specified daily allowance as consideration; and
(ii) open to ship owners to accept at their free will, subject only to the condition that they should first seek such service from the Italian authority in charge of the VPDs before seeking the same from private sources.
ii) An objective examination of the 'real issue of the case' and the 'object of the claim' revealed two distinct and separate disputes: one, which of the two countries, India or Italy, is entitled to exercise its jurisdiction over the incident of 15 February 2012; the other, concerning the immunity of Marines from foreign criminal jurisdiction, to wit, the Indian jurisdiction.
iii) Accordingly, the claim concerning immunity is not and cannot be treated as an incidental issue to the other dispute over which the Arbitral Tribunal found jurisdiction.
iv) To the extent that the issue of immunity of State officials is not covered by any of the provisions of the Convention, the Arbitral Tribunal is not empowered to exercise its jurisdiction to determine its validity in accordance with Article 288, paragraph 1, of the Convention. In addition, the claim of immunity operates as an exception to an otherwise existing jurisdiction.
v) It may be recalled that the Marines were employed by the owner of an oil tanker for rendering a service in return for a payment of a daily allowance and other incidental costs for such employment. Service rendered under those conditions is anything but a "government non-commercial service". Under the circumstances, it fails to meet the essential condition under international law to qualify for immunity from foreign jurisdiction. In the case of military personnel of one country stationed or visiting another country, a claim of immunity is admissible only if there is an agreement between the sending and receiving State. Italy did not have such an agreement with India to cover the Marines in the present case.111
vi) The Convention does not deal with issues of general international law or other treaty regimes not related to subject matters that fall within its scope. The Convention is admittedly not a self-contained treaty and has several provisions which, by their very nature, are open to further evolution in related fields of international law. Provisions of the Convention that deal with the sovereign rights and duties of coastal States over the exclusive economic zone and the continental shelf, conservation of fisheries, marine pollution, bio-diversity and the environment, and security interests or military uses, may be noted as prime examples of such related fields.
vii) However, as the Convention is the outcome of a 'package deal', "external rules" bearing upon the subject matters specified in the Convention could be raised as incidental issues, subject to such exceptions and limitations noted under Section 3, Part XV, and in particular, Articles 297 and 298, of the Convention.112
viii) The regime of compulsory settlement of disputes under Part XV of the Convention is a regime that operates as an exception to the general principle of international law according to which the jurisdiction of an international court or tribunal is based on consent of State parties to the dispute. As an exception to the rule, what is not specified in the Convention's scheme of compulsory settlement of disputes is deemed to have been excluded from it. Accordingly, the claim of immunity cannot be considered by the Arbitral Tribunal without express consent from India.
ix) Italy and India have done their best to cooperate with each other in good faith to settle matters arising from the "Enrica Lexie" incident. It is even more important that they work together now to settle expeditiously all the pending humanitarian issues on both sides, including issues of compensation.