This arbitration was instituted on 26 June 2015 when the Italian Republic served on the Republic of India a notification under art 287 and Annex VII, art 1 of UNCLOS in respect of 'the dispute concerning the Enrica Lexie Incident'. Italy and India are States Parties to UNCLOS.

According to Italy, the parties' dispute concerns an incident that occurred on 15 February 2012 approximately 20.5 nautical miles off the coast of India involving the MV Enrica Lexie, an oil tanker flying the Italian flag, and India's subsequent exercise of jurisdiction over the incident, and over two Italian Marines from the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, who were on official duty on board the Enrica Lexie at the time of the incident. According to India, the 'incident' in question concerns the killing of two Indian fishermen on board an Indian vessel named the St Antony, allegedly by rifle fire from the two Marines stationed on the Enrica Lexie. India contends in this regard that, while the present case has been labelled the Enrica Lexie incident, it should more accurately be referred to as the St Antony incident.

Held:

In relation to jurisdiction and admissibility:

1 (by 4 votes to 1) that in the present arbitration there is a dispute between the parties as to which State is entitled to exercise jurisdiction over the incident, and that the dispute concerns the interpretation or application of the Convention;

2 (by 4 votes to 1), that the Arbitral Tribunal has jurisdiction over the dispute, subject to its decision on the specific objections to its jurisdiction raised by India;

3 (unanimously), that India’s counter-claims are admissible;

4 (by 3 votes to 2), in respect of Italy’s submission, that art 2.3, art 56.2, and art 58.2 of the Convention are not pertinent and applicable in the present case;

5 (by 3 votes to 2), that it has jurisdiction to deal with the question of the immunity of the Marines;

6 (unanimously), that there is no need to address the question of the compatibility with UNCLOS of India’s 1976 Maritime Zone Act and its 1981 Notification;

In relation to the merits of the dispute between the parties:

1 (unanimously), that India has not acted in breach of art 87.1.a of the Convention; that India has not violated art 92.1 of the Convention; that arts 97.1 and 97.3 of the Convention are not applicable in the present case; that India has not violated art 100 of the Convention and that therefore art 300 cannot be invoked in the present case;

2 (by 3 votes to 2), that the Marines are entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines;

3 (by 3 votes to 2), taking note of the commitment expressed by Italy during the proceedings to resume its criminal investigation into the events of 15 February 2012, that India must take the necessary steps to cease to exercise its criminal jurisdiction over the Marines, and that no other remedies are required;

4 (by 3 votes to 2), that Italy has not violated India’s sovereign rights under art 56 of the Convention; (by 3 votes to 2) that Italy has not violated art 58.3 of the Convention; (unanimously), that Italy has not infringed on India’s rights under art 88 of the Convention;

5 (unanimously), that by interfering with the navigation of the St Antony Italy has acted in breach of arts 87.1.a, and 90 of the Convention;

6 (unanimously), that a finding in the present award that Italy has breached arts 87.1.a and 90 of the Convention constitutes adequate satisfaction for the injury to India’s non-material interests; that as a result of the breach by Italy of arts 87.1.a and 90 of the Convention, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the St Antony) and moral harm suffered by the captain and other crew members of the St Antony, which by its nature cannot be made good through restitution; that the parties are invited to consult with each other with a view to reaching agreement on the amount of compensation due to India; that the Arbitral Tribunal shall retain jurisdiction should either or both parties wish to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India, in which event the Arbitral Tribunal would fix a timetable for further proceedings, and that, should no such application be received within one year after the date of the present award, the proceedings shall be closed;

In relation to the costs of these proceedings, each party shall bear its own costs.

Articles 87 and 90 of the Convention provide for the freedom and right of navigation on the high seas, respectively. Both articles apply equally to the Exclusive Economic Zone by virtue of art 58.2 of the Convention. The evidence on the record is clear that it was the act of shooting at the St Antony by the Marines stationed on the Enrica Lexie that caused the St Antony to change direction and ultimately head back to shore. The St Antony was, both during and after the incident, prevented from navigating its intended course. The shooting at the St Antony amounted to physical interference with the navigation of the St Antony. As observed by ITLOS in M/V 'Norstar', '[i]t goes without saying that physical or material interference with navigation of foreign ships on the high seas violates the freedom of navigation': (CMI457) Accordingly, the Arbitral Tribunal concludes that by interfering with the navigation of the St Antony, Italy acted in breach of arts 87.1.a and 90 of the Convention.

Having found that, by interfering with the navigation of the St Antony, Italy acted in breach of arts 87.1.a and 90 of the Convention, the Arbitral Tribunal will examine which consequences arise from Italy’s unlawful conduct. The Arbitral Tribunal recalls that, under customary international law as codified in the ILC Draft Articles on State Responsibility, '[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act', which may include 'any damage, whether material or moral, caused by the internationally wrongful act'. The injury suffered by India as a result of Italy’s breach, through the conduct of the Marines, of India’s freedom of navigation under the Convention is twofold. First, India was subject to an infringement of its freedom of navigation. Such injury is a consequence of the breach of the Convention by Italy. While no specific material damage is associated with that injury, the Arbitral Tribunal recalls the principle expressed in the award of the Arbitral Tribunal in the 'Rainbow Warrior' Affair that '[u]nlawful action against non-material interests, such as acts affecting the honor, dignity or prestige of a State, entitle the victim State to receive adequate reparation, even if those acts have not resulted in a pecuniary or material loss for the claimant State'. The injury in question being of such a nature that it cannot be made good by restitution or compensation, reparation can only take the form of satisfaction. The Arbitral Tribunal considers that a finding in the present Award that Italy has breached arts 87.1.a and 90 of the Convention constitutes adequate satisfaction for India. The Arbitral Tribunal recalls in this regard that, in the Corfu Channel case, the ICJ regarded a declaration by the Court 'that the action of the British Navy constituted a violation of Albanian sovereignty' to be 'in itself appropriate satisfaction'. Second, the shooting at the St Antony amounted to physical interference with the freedom of navigation of the St Antony and constituted a breach of arts 87.1.a and 90. Based on the limited evidence available to the Arbitral Tribunal, as a consequence of such breach, crew members of the St Antony suffered loss of life, physical harm, material damage to their property (including to the St Antony itself), and moral harm. India is accordingly entitled to payment of compensation in respect of such damage, which by its nature cannot be made good through restitution.