An UNCLOS Annex VII Tribunal Upheld The Immunity Of The Italian Marines But Found Italy Itself Liable For The Unlawful Killing Of Two Indian Fishermen

• Published date: 03 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Arbitration & Dispute Resolution, Crime
• Law Firm: Volterra Fietta
• Author: Mr Robert G. Volterra and Gunjan Sharma

On 2 July 2020, a Permanent Court of Arbitration ("PCA") tribunal constituted under Article VII of the United Nations Convention on the Law of the Sea ("UNCLOS"), published extracts of its final award in the case concerning the Enrica Lexie incident (between Italy and India). The tribunal held that Indian courts could not exercise criminal jurisdiction over two Italian marines who allegedly shot at an Indian fishing boat eight years ago and killed the Indian nationals Ajesh Binki and Valentine. However, the tribunal found that Italy bore international responsibility for the incident.

Background to the dispute

On 15 February 2012, the M.V. Enrica Lexie, a commercial oil tanker flying the Italian flag, was transiting in international waters approximately 20.5 nautical miles off the coast of India. Six Italian Navy marines were deployed on board the Enrica Lexie to protect the vessel against piracy. Two Italian marines, Sergeants Latorre and Girone, allegedly shot and killed two Indian fishermen on board the fishing vessel St Antony. Shortly after the incident, the Indian Coast Guard asked the Enrica Lexie to navigate to the nearby Kochi port. After an investigation, Indian authorities arrested the two Italian marines and took them into custody. Eventually, the Italian marines were charged with murder and violence and remained in detention for around two years.

On 26 June 2015, Italy brought a claim against India to the PCA tribunal under Article 287 and Annex VII, Article 1 of UNCLOS. Italy argued that, in ordering the Enrica Lexie to port, India violated Italy's freedom of navigation under Article 87(1)(a) of UNCLOS and Italy's exclusive jurisdiction over the Enrica Lexie under Article 92 of UNCLOS. Italy also argued that exercising criminal jurisdiction over the Italian marines violated India's obligation to respect their functional immunity as Italian State officials exercising official functions under Articles 2(3), 56(2), 58(2) and 100 of UNCLOS. Italy also argued that, by failing to cooperate in the repression of piracy, India violated Article 100 of UNCLOS.

India objected to Italy's claims and brought counter-claims. India argued that, by firing at the St Antony, Italy had violated India's freedom and right of navigation under Articles 87 and 90 of UNCLOS, among others.

Italy's request for provisional measures

On 21 July 2015, pending the constitution of an arbitral tribunal, Italy filed a request for the prescription of provisional measures with...