Harisankar K S*
More than two years ago, I had an opportunity to reflect on the two significant legal issues of coastal state jurisdiction and sovereign functional immunity surrounding the Enrica Lexie incident, somewhere else. As India insisted on the prosecution of Italian marines for an offense committed in its contiguous zone and/or Exclusive Economic Zone, under the domestic law, Italy continued to protest India’s criminal jurisdiction on the basis of international law as the incident occurred in international waters and wanted the marines to be tried under Italian law. After almost three and half years of legal battle, Italy has decided to take India to an international forum. In this post, I intend to look at some of the major developments that followed the judicial process in India, which remained unsettled and had,therefore,lead to an international arbitration. A recap of the important milestones of this ocean conflict is inevitable before starting a discussion on the ongoing UNCLOS dispute settlement process.
The story thus far
The incident happened approximately 20.5 nautical miles off the coast of Kerala (an Indian state) on 15 February 2012 when two marines deployed on an anti-piracy mission onboard an Italian-flagged oil tanker MV Enrica Lexie allegedly shot dead two fishermen onboard an Indian fishing vessel St. Antony. The marines were arrested by the Kerala police and charged with murder under the Indian criminal law. The High Court of Kerala, while dismissing a writ petition filed by the Republic of Italy along with its marines, asserted that India has exclusive jurisdiction over the matter and rejected the plea of sovereign immunity. On appeal, the Supreme Court affirmed the jurisdiction of India, however, held that courts in Kerala are not empowered to exercise this jurisdiction, and directed the government to set up a special court in Delhi. Later, the case was handed over afresh to the National Investigation Agency (NIA). International organizations including the UN and EU voiced their concern over the dubious legal proceedings and demanded a speedy settlement of dispute in international level. In the meanwhile, NIA, despite the non-corporation of Italy and its Marines, has completed the investigation and submitted its report to the government of India. However, acceding to repeat applications made by the Italian side, the Supreme Court precluded the filing of a formal charge-sheet by NIA, resulting in the abeyance of any prosecution by the special court. At present, Sergeant Lattore is in Italy for a medical treatment and Sergeant Girone lives in the Italian embassy in New Delhi.
Beginning of the international legal process
Both India and Italy, being contracting parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), are bound by the dispute settlement procedure stipulated in the convention. The Convention offers a range of mandatory dispute resolution procedures including adjudication and arbitration, from within and outside convention’s framework. Yet it requires the States to settle their disputes through peaceful means before resorting to any of the compulsory procedures entailing binding decisions. Exchange of views (Negotiation) and Conciliation under Annex V are regarded as part of the “General Obligations” of the State parties involved in a dispute concerning the interpretation or application of the Convention. The exchange of views through political and diplomatic channels between the governments of Italy and India are sufficient to indicate that the general obligation have been satisfied in this case.
Italy, by a notification dated 26 June 2015, instituted arbitration under Annex VII of the UNCLOS. In its statement of claim, Italy contends that, among other things, India’s exercise of criminal jurisdiction violates the Convention. There are couple of questions that might strike at the first instance. First, why did Italy choose for Annex VII arbitration, when their UNCLOS declaration provides something else? It is a matter of choice for the States to select a suitable forum from an array of dispute resolution models, at the time of signing, ratifying or acceding to the Convention, or anytime thereafter. State parties are provided with a choice between two courts, namely, the International Court of Justice (ICJ) and the International Tribunal for Law of the Sea (ITLOS). Additionally, Arbitration (under Annex VII) and Special Arbitration (under Annex VIII) are available as an alternative to international adjudication. Italy at the time of ratification selected ITLOS and ICJ, without specifying that one have precedence over the other. Whereas, India reserved its right to make at the appropriate time the declarations concerning the settlement of disputes. In such a situation, Annex VII arbitration operates as a default method. Means, disputant states would have to resort to arbitration when a State has not specifically opted for a procedure, and/or, states in dispute have accepted different procedures for settlement. So, Italy had no other option but to initiate Annex VII arbitration in the present case. However, a more baffling question is why did Italy wait for nearly three and half years since the incident occurred? It is an undeniable fact that, while contesting the jurisdiction of Indian courts, Italy ‘played the game’ rigorously until a point when the chances of getting the ball to their court became extremely difficult. At the end of the day, a lawyer must ensure that ‘the most convenient forum’ hears his/her client’s case. The exercise of forum shopping is not a matter of law. May be of ethics?
Secondly, could India turn down the arbitration notification, legitimately? The answer would be in the negative. All states that are involved in a dispute do not need to consent to the reference of the dispute to the court or tribunal. In other words, a unilateral action is sufficient to vest the court or tribunal with jurisdiction, and that court or tribunal may render a decision whether or not the other State participates in the process. Therefore, technically, India had no option than to accept the offer of arbitration. However, on the other hand, by deciding to take part in an international arbitration, India went against its earlier stance on the issue. At all levels of the judicial process, India maintained that it has exclusive jurisdiction under Indian law and UNCLOS is not applicable to the matter. In so doing, the court(s) rejected Italy’s main contention based on Article 97 of the Convention, which states that, “in the event of a collision or any other incident of navigation concerning a ship on the high seas only the flag state of that ship has the jurisdiction to launch penal proceedings.The judicial opinion in India asserted that a ‘shoot and kill’ incident could not be treated as any other incident of navigation. Before the ITLOS, while blaming Italy for their delaying tactics, India emphasized on the humane and flexible behavior of Indian courts towards Italian marines. The written observations submitted by India says, “on various occasions, the High Court and the Supreme Court acted in a highly sympathetic manner and responded favorably to the requests of the marines with regard to the relaxation of their bail conditions”. The relevant question here is, does India’s criminal justice system permit such an attitude from the courts? Or in other words, will the Indian court(s) afford the same manner of treatment to a national who is charged with murder?
ITLOS Provisional Measures
Following the arbitration notification addressed to India, on 21 July 2015 Italy requested the ITLOS to prescribe two provisional measures pending the constitution of an Annex VII tribunal. They wanted the court to lay down the following measures:
(a) India shall refrain from taking or enforcing any judicial or administrative measures against the marines in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident; and,
(b) India shall take all measures necessary to ensure that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.
This action of Italy is evidently justified under the Convention. According to Article 290 (5):
Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires.
The Tribunal on 24 August 2015, by a majority of 15:6 ordered that, “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”. However, on the question of the release of the marines from the official custody of India, the tribunal concluded “the question of their status relates to the issue of jurisdiction and cannot therefore be decided by the Tribunal at the stage of provisional measures” [Para. 113]. Interestingly, the tribunal considered that the two provisional measures requested by Italy, “if accepted, will not equally preserve the respective rights of both Parties until the constitution of the Annex VII arbitral tribunal”[Para. 126]. They justified this action by Article 89 (5) of the ITLOS Rules, which says, “the tribunal may prescribe measures different in whole or in part from those requested.”
Turning to the requirements under Article 290 (5); first, the threshold of finding a prima facie jurisdiction is a low one. In the ICJ case of Interhandel (Switzerland v. United States) Judge Lauterpacht opined that the requirement is to assure that the jurisdiction of the tribunal to be constituted is not obviously excluded from deciding the merits. Similarly, while ordering the provisional measures in the case of MOX Plant (Ireland v. United Kingdom), ITLOS held that the prescription of provisional measures is usually allowed if the absence of jurisdiction is not manifest. It is possible that the finding of ITLOS on prima facie jurisdiction may prove wrong; for instance, when the arbitral tribunal later constituted under Annex VII in the case of South Bluefin Tuna concluded that it did not have jurisdiction to adjudicate on the merits of the case. The second criterion of ‘urgency of the situation’ is often linked to the gravity of the harm sought to be avoided by the request of provisional measures. In a situation where ITLOS is not seized of the merits, and there exists an uncertainty as to when an Annex VII tribunal would be in a position to adjudicate the case, the tribunal may, as a matter of urgency, prescribe provisional measures. Here, the main argument of India against the prescription of provisional measures revolved around the total absence of urgency, which the tribunal did not accept.Further, the language of the Convention indicates that the provisional measures ordered in UNCLOS disputes are binding as a matter of law [Article 290(6)]. Accordingly, Indian Supreme Court suspended all the pending judicial proceedings and set January 13, 2016 as the date for the next hearing.
What do this order and the imminent international arbitration mean to India? In the domestic political circle, it is perceived as a setback to the Indian legal system. Although before the ITLOS India accused Italy, rightly or wrongly, for their delaying tactics and judicial strategy,the order exposes the inordinate delays and inconsistencies of the Indian courts once again. Nevertheless, the decision to participate in Annex VII arbitration and the subsequent appearance before the ITLOS tribunal would be hailed internationally. Perhaps, the Indian Supreme Court is wary of the situation because of an earlier experience when the country was held liable for its judicial delays in the form of an international arbitration award. However, I believe that, India should have agreed to submit the subject matter to the ITLOS or ICJ, at the ‘appropriate’ time and in accordance with declaration made by Italy, instead of agreeing for an international arbitral process. By doing so, the government would have saved the time, energy and a tremendous amount of expenditure that is otherwise required in establishing an arbitral tribunal and subsequent running of the process. The significance of such an action could be proved shortly, as it is less likely that the matter will come back to an Indian court.
* Doctoral Candidate, Faculty of Law, National University of Singapore.