On the 2 July 2020 the Arbitral Tribunal (UNCLOS, Annex VII) in respect of the ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, issued its Award. In accordance with the Rules of Procedure (art. 23(5)), as amended by Procedural Order No. 7, the full (redacted) Award will be published following the Parties’ confidentiality review. An Award – Extracts for Advance Publication is available, containing the operative part of the Award (para. 1094). As an edited summary:
A. In relation to jurisdiction and admissibility
1. Finds (4-1 votes) there is a dispute concerning the interpretation or application of UNCLOS;
2. Finds (4-1 votes) the Arbitral Tribunal has jurisdiction over the dispute, subject to its decision on India’s Submission (1.a);
3. Finds (unanimously) India’s counter-claims are admissible;
4. Finds (3-2 votes) in respect of Italy’s Submission (2)(f), that UNCLOS arts. 2(3), 56(2) and 58(2) are not applicable;
5. Finds (3-2 votes) it has jurisdiction concerning the Marines’ immunity;
6. Finds (unanimously), concerning India’s submission (1.a), it’s unnecessary to determine the compatibility of India’s 1976 Maritime Zone Act and its 1981 Notification with UNCLOS.
B. In relation to the merits of the dispute between the Parties
1. Finds (unanimously), concerning Italy’s Submission (2)(b)-(e) and (g):a. India did not breach UNCLOS art. 87(1)(a);
b. India did not violate UNCLOS art. 92(1);
c. UNCLOS arts. 97(1) and 97(3) are not applicable;
d. India did not violated UNCLOS art. 100 and art. 300 cannot be invoked;2. Decides (3-2 votes), concerning Italy’s Submission (2)(f), the Marines are entitled to immunity and India is precluded from exercising jurisdiction thereof;
3. Decides (3-2 votes) concerning Italy’s Submission (3)(a) and (c), India must cease exercising criminal jurisdiction over the Marines and no other remedies are required;
4. Finds, concerning India’s Submissions (4), (5), and (7):a. (3-2 votes) Italy did not violate UNCLOS art. 56;
b. (3-2 votes) Italy did not violated UNCLOS art. 58(3);
c. (unanimously) Italy did not infringed UNCLOS art. 88;5. Finds (unanimously) concerning India’s Submission (6), Italy’s interference with the navigation of the “St. Antony” breached UNCLOS arts. 87(1)(a) and 90;
6. Decides (unanimously) concerning India’s Submission (8):a. A finding that Italy breached UNCLOS arts. 87(1)(a) and 90 constitutes adequate satisfaction for India’s non-material interests;
b. India is entitled to compensation in connection with the loss of life, physical harm, material damage to property and moral harm suffered, which cannot be made good through restitution;
c. Parties are invited to consult on the quantification of compensation;
d. The Arbitral Tribunal retains jurisdiction should either Party or both Parties wish to apply for a ruling on the quantification of compensation, subject to the closure of proceedings should no application be received within one year.
C. In relation to the costs of these proceedings
Decides each Party shall bear its own costs.
For further information see the full unedited Award – Extracts for Advance Publication and previous reports.
Update (03/07/2020): For further information see India’s MEA Press Release and Italy’s MFAIC Press Release.
De Maribus 