This case arose out of an incident that occurred on 15 February 2012 approximately 20.5 nautical miles off the coast of India in the Indian exclusive economic zone (EEZ) involving the MV Enrica Lexie, an oil tanker flying the Italian flag. Two Italian Marines from the Italian Navy, who were on official duty on board the Enrica Lexie at the time of the incident, fired upon and killed two Indian fishers on board an Indian fishing vessel, the St Antony. India subsequently arrested and detained the MV Enrica Lexie and the Italian Marines.

Italy requested an arbitral tribunal to be constituted under Annex VII to the United Nations Convention on the Law of the Sea 1982 (UNCLOS) to adjudge and declare that:

(a) India has acted and is acting in breach of international law by asserting and exercising jurisdiction over the Enrica Lexie and the Italian Marines in connection with the incident;
(b) The assertion and exercise of criminal jurisdiction by India is in violation of India’s obligation to respect the immunity of the Italian Marines as State officials exercising official functions;
(c) Italy, as the flag State and State of nationality, has exclusive jurisdiction over the Enrica Lexie and over the Italian Marines in connection with the incident;
(d) India must cease to exercise any form of jurisdiction over the Enrica Lexie incident and the Italian Marines, including any measure of restraint with respect to Sergeant Latorre and Sergeant Girone;
(e) India has violated its obligation under the Convention to co-operate in the repression of piracy.

Italy maintained that the dispute with India concerned the interpretation and application of UNCLOS, including, in particular, arts 2.3, 27, 33, 56, 58, 87, 89, 92, 94, 97, 100 and 300.

India argued that the incident and its subsequent assertion of jurisdiction over the vessel and the Marines was not covered by the provisions of UNCLOS.

Held: The Tribunal (1) by 15 votes to 6, prescribed, pending a decision by the Annex VII arbitral tribunal, the following provisional measure under art 290.5 of UNCLOS: 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 jeopardise or prejudice the carrying out of any decision which the arbitral tribunal may render;
(2) By 15 votes to 6, decided that Italy and India shall each submit to the Tribunal an initial report not later than 24 September 2015, and authorised the President, after that date, to request such information from the parties as he may consider appropriate.

The Tribunal found that a dispute existed between the parties concerning the interpretation or application of UNCLOS and that the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute. The Tribunal also found that an extensive exchange of views had taken place and that the requirements of art 283.1 of UNCLOS were therefore satisfied. Although India argued that Italy should first exhaust its remedies in the local Indian courts, the Tribunal held that, since the very nature of the dispute between the parties concerned the exercise of jurisdiction over the Enrica Lexie incident, the issue of exhaustion of local remedies should not be addressed in the provisional measures phase. The Tribunal was of the view that art 290 of UNCLOS applies independently of any other procedures that may have been instituted at the domestic level and Italy was therefore entitled to have recourse to the procedures established in that article. If proceedings are instituted at the domestic level, this does not deprive a State of recourse to international proceedings.