The Dispute Concerning the Enrica Lexie Incident and the Role Of

The Dispute Concerning the Enrica Lexie Incident and the Role of International Tribunals in Provisional Measure Proceedings Instituted Pursuant to the United Nations Convention on the Law of the Sea

Roberto Virzo

1 Introduction

This article deals with the ‘Enrica Lexie’ Incident (Italy v India) by taking as its starting point the two orders on provisional measures issued in the case, respectively, on 24 August 2015 and 29 April 2016. The first order was rendered by the International Tribunal for the Law of the Sea (ITLOS) pending the constitution of the Arbitral Tribunal under Annex VII to the United Nations Convention on the Law of the Sea (LOSC),1 to which the dispute has been sub- mitted; the second, by the Annex VII Arbitral Tribunal.2 The aforesaid orders raise a variety of issues, only some of which will be dis- cussed here. More specifically, two main issues will be addressed: (i) the func- tion of provisional measures according to two different paragraphs of Article 290 LOSC (§ 3); and (ii) the tendency to interpret LOSC provisions in coor- dination with other norms of international law, particularly those that con- cern human rights (§ 4). In examining these issues, an attempt will be made to shed light on the role of international tribunals in facilitating the resolution of international disputes for which provisional measure proceedings have been initiated, especially when said tribunals issue orders that impose obligations of cooperation on the parties involved—a topic we will return to in the short concluding remarks.

1 See 1833 UNTS 3. The Convention was signed at Montego Bay on 10 December 1982 and en- tered into force internationally on 16 November 1994; it was ratified by Italy on 12 February 1995 and by India on 29 June 1995. 2 See The ‘Enrica Lexie’ Incident (Italy v India), ITLOS Case No 24, Order of 24 August 2015, available at www.itlos.org; The ‘Enrica Lexie’ Incident (Italy v India), PCA Case No 2015–28, Order of 29 April 2016, available at https://pcacases.com/web/sendAttach/1707, accessed on 3 August 2016.

2 The Enrica Lexie Incident

Before going any further, it seems worthwhile to recall briefly the facts and subject-matter of the dispute between Italy and India concerning the Enrica Lexie incident.3 Over the last twenty years, many States and some organs of international organizations, including the United Nations Security Council, have adopted measures, of varying forms, to counter maritime piracy.4 One of these measures is Italian Law No. 130 of 2 August 2011,5 which, among other things, provides for ‘the deployment of Vessel Protection Detachments (‘VPDS’) from the Italian Navy on board vessels flying the Italian flag to ensure the security of such vessels travelling in international waters that are at high risk of piracy’.6 Now, while the costs of the presence of Italian military units on board an Italian-flagged merchant vessel are to be borne by the shipowner,7 the rules of

3 In the literature, see V. Eboli & J. P. Pierini, ‘Coastal State Jurisdiction Over Vessel Protection Detachments and Immunity Issues: The Enrica Lexie Case’, 51 Revue de droit militaire et de droit de la guerre, 2012, pp. 117–148; I. Caracciolo & F. Graziani, Il caso dell’Enrica Lexie alla luce del diritto internazionale, Editoriale Scientifica, 2013; N. Ronzitti, ‘The Enrica Lexie Incident: Law of the Sea and Immunity of States Officials Issues’, 22 The Italian Yearbook of International Law, 2012, pp. 3–22; M. Gandhy, ‘The Enrica Lexie Incident: Seeing Beyond the Grey Areas of International Law’, 53 Indian Journal of International Law, 2013, pp. 1–26; N. Ronzitti, ‘La difesa contro i pirati e l’imbarco di personale armato sui mercantili: il caso della Enrica Lexie e la controversia Italia-India’, 96 Rivista di diritto internazionale, 2013, pp. 1073–115; B. Conforti, ‘In tema di giurisdizione penale per fatti commessi in acque inter- nazionali’, in Scritti in onore di Giuseppe Tesauro, Editoriale Scientifica, 2014, pp. 2619–2629; A. Del Vecchio, ‘Il ricorso all’arbitrato obbligatorio UNCLOS nella vicenda dell’Enrica Lexie’, 50 Rivista di diritto internazionale privato e processuale, 2014, pp. 259–284; T. Russo, ‘Maritime Police and Functional Immunity in the Recent Italian-Indian Case’, in J. M. Sobrino Heredia (ed), La contribution de la Convention des Nations Unies sur le droit de la mer à la bonne gou- vernance des mers et des océans, Editoriale Scientifica, 2014, pp. 629–642; A. Del Vecchio, ‘The Fight Against Piracy and the Enrica Lexie Incident’, in L. del Castillo (ed), Law of the Sea, from Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos, Brill/Nijhoff, 2015, pp. 397–422. 4 On this subject see, among many others, D. Momtaz, ‘La piraterie’, in H. Ascensio, E. Decaux & A. Pellet (eds), Droit international pénal, Pedone, 2012, pp. 365–370. 5 Originally published in Italian in 152 Gazzetta Ufficiale della Repubblica Italiana, 2011, as Decree-Law No. 107 of 12 July 2011, 23–31. The English version used here is that contained in Annex 2 to Italy’s Notification of dispute to India of 26 June 2015, available at https:// pcacases.com/web/view/117, accessed on 3 August 2016. 6 See PCA, supra, note 2, Italy’s Notification of Dispute to India of 16 June 2015, para. 4. 7 Article 5(3) of Italian Law No. 130/2011 provides that: ‘Shipowners who benefit from the protection referred to in paragraph 1 shall repay the costs thereof, including the expenses for the personnel referred to in paragraph 2 and operating expenses’ to the Ministry of Defence.