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[Enrica Lexie] Permanent Court of Arbitration Publishes Award & Dissenting Opinions

13 Aug 2020 9:31 AM GMT
[Enrica Lexie] Permanent Court of Arbitration Publishes Award & Dissenting Opinions
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The Permanent Court of Arbitration has published its Award and concurring/dissenting opinions in the case between India and Italy on 'Enrica Lexie' Incident.

Earlier the Court had published only an extracts from the Award since the Rules of Procedure provides that the full (redacted) Award can be published only after the Parties' confidentiality review.

Now, a 326 paged Award has been uploaded in the PCA web portal. The dissenting opinions of Judges Patrick Robinson Dr. Sreenivasa Rao Pemmaraju have also been uploaded. Judges Vladimir Golitsyn (President), Jin-Hyun Paik and Professor Francesco Francioni comprised the majority.

On July 2, the Permanent Court of Arbitration rendered its judgement, unanimously holding that India is entitled to claim compensation from Italy. It also held by a 3:2 majority that the Marines are entitled to immunity in relation to the acts that they committed during the incident and that India is precluded from exercising its jurisdiction over the Marines.

It had also that Italy has acted in breach of the Article 87, paragraph 1, subparagraph (a), and Article 90 of the United Nations Convention for the Law of the Sea and that 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.

Dissenting Opinions 

In his dissenting opinion, Judge Patrick Robinson said that the Tribunal has no jurisdiction over the issue of the immunity of the marines because it does not concern the interpretation or application of the Convention. Since that issue is a core element of the dispute, the Arbitral Tribunal should have declined jurisdiction over the dispute. The issue of the immunity of the marines is not an incidental question; rather it is a core element of the dispute; it is the real issue in the dispute between the Parties.", he said. He added that even if it is assumed that the Arbitral Tribunal had jurisdiction over the issue of the immunity of the marines, the marines do not enjoy immunity. According to him, the marines do not enjoy immunity either because: (a) the State of Italy engaged in an essentially commercial transaction in order to emplace the marines onboard the "Enrica Lexie" to protect the vessel from pirates; that act, jure gestionis, does not attract immunity for the State of Italy under customary international law; therefore the State of Italy had no immunity from which the marines could benefit in their act of firing shots from the "Enrica Lexie" that resulted in the death of two Indian fishermen aboard the "St. PCA 313309 40 Antony"; or (b) the marines can be assimilated to the status of visiting forces which do not enjoy immunity under customary international law for acts carried out in the receiving State. Since there was no agreement between Italy and India to grant immunity to the marines, the act of the marines that was completed onboard the "St. Antony", over which India had jurisdiction as the flag State or on the basis of the principle of objective territoriality, does not attract immunity.

Judge Robinson was joined by Dr. Dr. Sreenivasa Rao Pemmaraju in his dissent against the Majority finding that Italy had not violated India's sovereign rights under Article 56 of the Convention. They also opined that hat Italy acted in breach of its obligation of due regard under Article 58, paragraph 3, of the Convention.

"Italy and India have done their best to cooperate with each other in good faith to settle matters arising from the "Enrica Lexie" incident. It is even more important that they work together now to settle expeditiously all the pending humanitarian issues on both sides, including issues of compensation." Dr. Rao said in his separate opinion.

Enrica Lexie Incident

On February 15, 2012, at about 4.30 PM, at a distance of about 20.5 nautical miles from the coastline, a fishing boat 'St Antony' happened to pass "Erica Lexie", a tanker flying the Italian Flag. Two marines aboard the ship - Massimilano Latorre and Salvatore Girone - mistook 'St Antony' for a pirate boat, and opened fire at it. This resulted in the death of two fishermen - Valentine Jalastine and Ajesh Binki.

Also Read:Remembering Enrica Lexie - Italian Marines Case On 8th Year Of Sea Firing

Developments In India After July 2

Soon after, the award extract was published, the Centre had filed an application seeking disposal of the matters pending in the Supreme Court regarding the criminal proceedings against Italian marines in respect of the incident. It stated that it has "decided to accept and abide" by the order passed by the Tribunal. But the Supreme Court refused to close the pending cases against two Italian Marines, without hearing the families of the victims.

Also Read:Italian Marines-Enrica Lexie Case : Deciphering PCA Award In 'The Italian Republic v The Republic Of India'

Also Read:14 Year Old Boy Was Onboard The Fishing Boat When Enrica Lexie Incident Happened: His Family Claims 100 Crores As Compensation From Italy

Click here to Read/Download Award

Click here to Read/Download Dissenting Opinion by Judge Patrick Robinson

Click here to Read/Download Concurring and Dissenting Opinion of Dr Sreenivasa Rao Pemmaraju

Click here to Read/Download Joint Dissenting Opinion of Dr Sreenivasa Rao Pemmaraju and Judge Patrick Robinson

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