As per Article 97 of the United Nations Convention on the Law of the Sea (“Convention“): “In the event of a collision or any other incident of navigation concerning a ship on the high seas”, only the flag state of that ship can launch penal proceedings.
The Enrica Lexie Incident is not an incident of navigation, let alone a collision, in the high seas, but a murder committed by two Italian Nationals of two Indian Nationals in a maritime area under the jurisdiction of India.
The International Tribunal for the Law of the Sea (“ITLOS“) is composed of 21 judges who are recognized experts in the field of the law of the sea. The judges are elected by the States Parties to the Convention for a term of nine years and may be re-elected. Requests for the prescription of provisional measures pending the constitution of an arbitral tribunal may be instituted by unilateral application from any State Party to the Convention (See, Article 290, Paragraph 5). Italy filed one such request on July 21, 2015.
Considerations of humanity must apply in the law of the sea, as they do in other areas of international law. On August 24, 2015 the ITLOS, by 15 votes to 6, prescribed: “Italy and India shall both suspend all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute”. Suspending court proceedings was defeat. In defeat, amidst supposedly suspended court proceedings, the Hon’ble Supreme Court of India (“SC“) ordered that four proceedings that were pending in the Indian Courts be “stayed/deferred till further orders”. The Pledge.
On December 11, 2015, Italy submitted to the Arbitral Tribunal a Fresh Request for the prescription of provisional measures under Article 290, Paragraph 1 of the Convention. Italy wanted India to relax the bail conditions on Sergeant Girone, and to enable him to return to Italy, pending the final determination of the Tribunal. India argued that the Arbitral Tribunal was not vested with jurisdiction to review the ITLOS order in the absence of any change in circumstances.
To modify a previous order indicating interim measures, the judicial or arbitral body must first ascertain whether, in light of the facts brought before it by the requesting State, there has been a change in the situation which called for the indication of the initial provisional measures and whether such change justifies the modification or revocation of the measures previously indicated. All the circumstances put forward by Italy to justify a reversal of the ITLOS Order were known to ITLOS in August, 2015.
Italy stated that, first, ITLOS was called upon to determine what would be appropriate “in a relatively short period” pending the constitution of the Arbitral Tribunal rather than “what was needed pending the final award on the merits”. Second, it was now clear, as it was not when ITLOS heard the argument, that it will be years before charges are laid against Sergeant Girone and in fact, both parties had taken steps, following the ITLOS Order, to suspend all criminal proceedings.
The object and purpose of Article 290, Paragraph 1 is to enable a tribunal to prescribe any provisional measures that it considers appropriate to preserve the respective rights of the parties to a dispute pending the final decision, without being limited by a prior decision of ITLOS pursuant to Article 290, Paragraph 5 of the Convention.
The Arbitral Tribunal noted that the requests that Italy had submitted to ITLOS and the the Tribunal are different in significant respects. Before ITLOS, Italy had made the far-reaching request “that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy”. The effect of that request, if granted, would have been to remove Sergeant Girone entirely from the reach of India’s legal system. Italy’s position at ITLOS amounted to a denial that India might have any legitimate interest in retaining authority over the Marine. By contrast, before the Tribunal, Italy requested that India “take such measures as are necessary to relax the bail conditions on Sergeant Girone in order to enable him to return to Italy”. It was evident that Italy was prepared to accept that, should Sergeant Girone be allowed to return to Italy, he will remain under the jurisdiction of the Courts of India. On that ground, the Arbitral Tribunal considered Italy’s Fresh Request admissible.
On April 29, 2016
After Considering, 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);
After Considering, that Sergeant Girone’s children suffer considerably under the current situation, involving the separation from their father during years of their lives;
After Considering, that any provisional measures that may be prescribed by the Arbitral Tribunal should not alter the situation where the SC exercises jurisdiction over Sergeant Girone;
After Considering, that as a result of the ITLOS Order of 24 August 2015, court proceedings are suspended, and new proceedings may not be initiated, such that there would appear to be no legal interest in Sergeant Girone’s physical presence in India;
After Considering, that the Arbitral Tribunal is not bound by the Parties’ requests. Instead, it is free to adopt measures that are different in whole or in part from those requested;
The Arbitral Tribunal prescribed: “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 Arbitration.” The Arbitral Tribunal further confirmed “Italy’s obligation to return Sergeant Girone to India in case the Arbitral Tribunal found that India has jurisdiction over him in respect of the Enrica Lexie Incident.”
While it remained for the SC to fix the precise conditions of Sergeant Girone’s bail, the Arbitral Tribunal suggested the following conditions and guarantees: Italy shall ensure that Sergeant Girone reports to an authority in Italy designated by the SC in intervals to be determined by the SC; Sergeant Girone shall be required by Italy to surrender his passport to the Italian authorities and shall be prohibited from leaving Italy unless the SC; Italy shall on its own motion apprise the SC of the situation of Sergeant Girone every three months. The Turn.
On May 26, 2016 the SC (Pant and Chandrachud JJ) permitted Sergeant Girone to return to Italy subject to the following conditions:
(a) Sergeant Girone shall prior to his departure provide and file an undertaking on affidavit in these proceedings, duly affirmed and deposed by him, accepting and recognizing that he remains and shall even upon his departure from India continue to remain under the authority of the SC;
(b) Sergeant Girone shall surrender his passport to the Italian authorities on his departure from India. Sergeant Girone shall be prohibited from leaving Italy unless this Court grants him leave to do so, following a petition duly submitted to this Court to that effect;
(c) Sergeant Girone shall report to an identified Police Station in Italy on the first Wednesday of every month. The identity and details of the Police Station shall be notified to the Head of Chancery in the Embassy of India in Rome within one week. The said identified Police Station shall inform the Head of Chancery in the Embassy of India in Rome, in writing, after each such reporting;
(d) Italy shall submit, via a Note Verbale from the Embassy of Italy to the Ministry of External Affairs, Government of India every three months, on the first business day of the month in question starting on 1 September 2016, a report on the situation of Sergeant Girone for purposes of apprising this Court. The Union of India will take such steps as are necessary and appropriate to submit this report to this Court;
(e) Sergeant Girone shall not directly or indirectly contact, influence or tutor any witnesses in the case, including those based in Italy, nor would he attempt to destruct or destroy the evidence in any manner;
(f) In the event of breach of any of the conditions either cumulatively or independently, the bail granted shall stand cancelled; and
(g) Ambassador of Italy shall file an undertaking on affidavit in these proceedings prior to the departure of Sergeant Girone stating that Sergeant Girone shall be made to return to India within a period of one month of the decision or direction of the Arbitral Tribunal requiring him to do so or as directed by the orders of this Court.