UNCLOS Annex VII Tribunal Enrica Lexie Orders Cooperation

On 29 April 2016, the Arbitral Tribunal in the arbitration concerning the "Enrica Lexie" incident (Italy v India) issued its Order on the request by Italy for the prescription of provisional measures pursuant to Article 290(1) of the United Nations Convention on the Law of the Sea (UNCLOS). The UNCLOS Annex VII Tribunal Order unanimously prescribes, as a provisional measure, an obligation to cooperate for a relaxation of the bail conditions for Sergeant Girone.

The operative part of the Order (para. 132) provides that:

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

The arbitral proceedings were instituted on 26 June 2015 by Italy against India under UNCLOS Article 287 and Article 1 of Annex VII. The dispute concerns a shooting incident off the coast of India in which two Italian marines, stationed on the Italian flagged oil tanker Enrica Lexie, fatally shot two Indian fishermen on the fishing vessel St Antony in what appears to have been a mistaken counter-piracy action.

Following the developments that led to the docking of the Enrica Lexie at the oil terminal of Kochi port (the circumstances of which are contested by the Parties), on 19 February 2012 the Indian authorities arrested the two marines - Sergeant Latorre and Sergeant Girone - and took them into custody. India's jurisdiction in this regard has been challenged by Italy. Both marines are currently on bail, subject to conditions established by the Supreme Court of India. On 12 September 2014, the Supreme Court of India allowed Sergeant Latorre to travel to Italy (where he remains) for medical reasons. However, Sergeant Girone remains in India under the bail conditions set by the Supreme Court, which also ordered that the proceedings pending in the Indian courts remain 'stayed/deferred till further orders'. (Order, paras. 11, 28-31. The stay of proceedings gives effect to the ITLOS Provisional Measures Order of 24 August 2015, para. 141.) 

It is against this background that on 11 December 2015, Italy requested the Arbitral Tribunal to prescribe the following additional provisional measure:

India shall take such measures as are necessary to relax the bail conditions on Sergeant Girone in order to enable him to return to Italy, under the responsibility of the Italian authorities, pending the final determination of the Annex VII Tribunal. (Request, para. 6.)

In its Written Observations of 26 February 2016 on the Italian Request, India held that the Request is 'difficult to accept' (para. 4.2) and requested the Arbitral Tribunal

to reject the [Italian] Request for the prescription of provisional measures and to refuse to prescribe any new provisional measure in the present case. (Observations p. 49.) 

The Tribunal, in setting out its considerations that led it to prescribe an obligation to cooperate, first held that

102. In the present case, the Arbitral Tribunal must consider whether there is a risk of irreparable prejudice to Italy's rights if Sergeant Girone remains in India during the arbitral proceedings (assuming that Italy ultimately prevails on the merits), and whether India's rights are unduly affected if Sergeant Girone returns to Italy during the pendency of these arbitral proceedings (assuming that India ultimately prevails on the merits). The Arbitral Tribunal must ensure that the respective rights of the Parties are preserved in this respect in the most appropriate manner if the Arbitral Tribunal decides to prescribe provisional measures.

As to this aim to ensure the rights in 'the most appropriate manner', the Tribunal took note of the hardship inflicted on Sergeant Girone as well as his family and based on these factors held that '[c]onsiderations of humanity therefore make it appropriate for the Arbitral Tribunal to address Sergeant Girone's current conditions' (para. 104). Accordingly, it went on to state:

106. The Arbitral Tribunal holds the view that its decision should seek to give effect to the concept of considerations of humanity, while preserving the respective rights of the Parties.
107. The Arbitral Tribunal considers that the rights of both Parties could be appropriately preserved by alleviating Sergeant Girone's bail conditions so as to allow him to spend the time of his bail in Italy pending a final decision in this case. Such a measure would significantly lessen the hardship for Sergeant Girone resulting from India's exercise of jurisdiction, without affecting India's legal position in relation to Sergeant Girone. [...]
108. With appropriate guarantees of return, no material change would result for India from an alleviation of Sergeant Girone's bail conditions. Appropriate guarantees should include, as stated by Italy in its Request, a binding undertaking by Italy to guarantee the return of Sergeant Girone, should this Arbitral Tribunal find in India's favour on the merits.

In the light of these considerations, and taking into account India's need to be ensured that the presence of Sergeant Girone would be ensured if the Tribunal finds that India has jurisdiction, 

124. [...] the Arbitral Tribunal considers it appropriate that Italy and India 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 may return to Italy during the present Annex VII arbitration. [...]

While the Tribunal acknowledged that 'it remains for the Supreme Court of India to fix the precise conditions of Sergeant Girone's bail', it suggested that the arrangements 'may, inter alia, include the following conditions and guarantees' (para. 125):

Italy shall ensure that Sergeant Girone reports to an authority in Italy designated by the Supreme Court of India in intervals to be determined by the Supreme Court of India; Sergeant Girone shall be required by Italy to surrender his passport to the Italian authorities and shall be prohibited from leaving Italy unless the Supreme Court of India grants leave to travel; Italy shall on its own motion apprise the Supreme Court of India of the situation of Sergeant Girone every three months.

This decision is not the first instance of an international tribunal ordering cooperation as a provisional measure in a dispute settlement procedure under UNCLOS (cf. this previous post). Nevertheless, the approach taken by the Tribunal is innovative as the first case in which such an obligation is significantly based on applicable 'considerations of humanity'. As such, the decision is of particular importance to the development of the law and practice on obligations to cooperate as provisional measures in the law of the sea, and possibly beyond. As the Arbitral Tribunal reiterated, '[c]onsiderations of humanity must apply in the law of the sea, as they do in other areas of international law' (Order, para 104; citing M/V "Saiga" (Case No. 2) (Saint Vincent and the Grenadines v Guinea) Judgment 1999 ITLOS Rep 62 para. 155).     

Moreover, it should also be noted that the case on the merits raises other questions of obligations to cooperate. In particular, Italy claims that

India's conduct is also in breach of India's duty to cooperate with Italy in the repression of piracy and with other rules and obligations of international law intimately connected with the issues in dispute and not otherwise incompatible with the Convention. (Notification of Claim, para. 24. See also paras. 25, 29(f), and 33(e).)

This question is an important one, as it appears to be the first instance in which a State has claimed a breach of the obligation to cooperate on piracy before an international tribunal. The matter will be discussed on Cooperate or Else in a future post, following the Tribunal's final decision.