The Arbitral Tribunal delivered the award on May 21, 2020. On 8 October 2021, India indicated that, in view of assuranes received from Italy with respect to the prosecution of the Marines in Italy, it concurred in Italy’s proposal to close the arbitral proceedings. The arbitral proceedings was closed by Judge Vladimir Golitsyn, President, Permanent Court of Arbitration on October 12, 2021. In the matter of arbitration before the Arbitral Tribunal was constituted under Annex VII of the 1982 UN Convention on the Law of the Sea (The Italian Republuc v. the  Republic of India) concerning 'Enrica Lexie' Incident'. The Tribunal comprised of Judge Golitsyn, Judge Jin-Hyun Paik, Judge Patrick Robinson, Professor Francesco Francioni andDr. Pemmaraju Sreenivasa Rao. Award - Extracts for Advance Publication (July 02, 2020). 

Professor Alain Pellet and Rodman Bundy were the counsels of India. Pellet was emeritus Professor, University Paris Nanterre, ex-ormer Chairman of the International Law Commission and Member of the Institut de Droit International. Bundy was a Member of the New York Bar; former avocat à la Cour d’appel de Paris; Partner, Eversheds Harry Elias LLP, Singapore. Sir Daniel Bethlehem and Dr. Ben Juratowitch were counsels of Italy. Bethlehem was a Member of the Bar of England and Wales; 20 Essex Street Chambers. Juratowitch was a Solicitor Advocate, England and Wales; Solicitor of the Supreme Court of Queensland; Partner, Freshfields Bruckhaus Deringer.

The case was regarding an incident of firing that occurred on February 15, 2012 between 4-4.30 IST in the maritime area off the coast of India (Kerala state) at a distance of 20.5 nautical miles. The firing was done by two marines of the Italian Navy, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, positioned on the “Enrica Lexie”, an oil tanker flying the Italian flag, to protect the vessel from what they believed to be an impending piracy or armed robbery attack from a small Indian boat, the “St. Antony”, which they perceived to be on a steady collision course. At the time, the “Enrica Lexie” was transiting through a maritime area that was within the range of a “High Risk Area” for piracy designated by the International Maritime Organization (IMO). On the particular day of the incident, the seas were calm, and a lot of fishing activity was undertaken, with no reports or warnings about any piracy/armed attacks.

The Arbitration was instituted on 26 June 2015 when the Italian Republic served on the Republic of India  a “Notification under Article 287 and Annex VII, Article 1 of UNCLOS and Statement of Claim and Grounds on Which it is Based” (hereinafter the “Notification and Statement of Claim”) in respect of “the dispute concerning the Enrica Lexie Incident”.

Italy and India, the signatories to the UN Convention on the Law of the Sea (UNCLOS). Subsequent to its ratification of the Convention, on February 26, 1997, Italy made a declaration pursuant to Article 287 of the Convention accepting the jurisdiction of the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ). India has not made any such declaration. Therefore, as Italy and India have not accepted the same procedure for the settlement of disputes concerning the interpretation or application of the Convention, pursuant to Article 287, paragraphs 3 and 5, of the Convention, any dispute that may arise between the Parties in this regard may be submitted only to arbitration instituted in accordance with Annex VII to the Convention, unless the Parties agree otherwise. The Parties have not agreed on any other procedure. 

According to Italy, the Parties’ dispute concerns an incident that occurred on February 15, 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 aforementioned 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”. Italy ratified the Convention on 13 January 1995. India ratified the Convention on 29 June 1995.

The “St. Antony” was a fishing vessel owned by an Indian national1833 and registered under the Tamil Nadu Marine Fishing Regulation Act, 1983, 1834 and the Marine Products Export Development Authority Act, 1972. St. Antony”, as a small fishing vessel, was exempt from registration under the Indian Merchant Shipping Act, 1958, and that pursuant to Article 94, paragraph 2, subparagraph (a), of the UNCLOS , “it was not […] obligatory for the St Antony to be registered given its small size”.

The test under the UNCLOS for establishing a jurisdictional link between a vessel and a State is whether a vessel possesses the nationality of that State, as opposed to whether or not it is found in a public register or flies a flag. A flag may thus be regarded as “visual evidence” or “a symbol” of nationality, but is not determinative for that vessel’s nationality.

As the case, when it was instituted by Italy, was registered by the Registry of the Permanent Court of Arbitration (PCA) as the arbitration concerning “the ‘Enrica Lexie’ Incident” in the absence of any objections from the Parties at the first procedural meeting, and given that during the proceedings and in the Arbitral Tribunal’s Order on Provisional Measures the case was continuously referred to as the arbitration concerning the “Enrica Lexie” Incident, the Arbitral Tribunal, without prejudice to the nature of the incident, decided to  do likewise in the Award.

In its Notification and Statement of Claim, Italy requested the Arbitral Tribunal, once constituted, 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 Enrica Lexie 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) It is Italy that has exclusive jurisdiction over the Enrica Lexie and over the Italian Marines in connection with the Enrica Lexie 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 cooperate in the repression of piracy. 

The Arbitral Tribunal recorded: "When the 'St. Antony' was at a distance of approximately 500 metres from the 'Enrica Lexie', Sergeant Latorre and Sergeant Girone each fired four rounds of a mix of tracer and ordinary bullets.1847 According to the testimony of Sergeant Latorre, the purpose of these shots was to 'deter the craft from continuing to keep its course heading toward the Enrica LEXIE'. Sergeant Latorre noted in his Action Report that this 'first burst of warning shots' did not succeed in 'persuading the craft to drift away'. When the “St. Antony” was at a distance of 300 metres from the 'Enrica Lexie', Sergeant Latorre fired four rounds of a mix of tracer and ordinary bullets.1850 Sergeant Latorre noted further in his testimony that 'the second burst of warning shots did not achieve the desired effect, the craft ignored the warning shots and kept its course, heading toward the MV at constant speed'. When it was at a distance of approximately 80-100 metres from the 'Enrica Lexie', Sergeant Latorre and Sergeant Girone, each fired four further rounds of a mix of tracer and ordinary bullets. Following this third burst of shots, the 'St. Antony', after being approximately 30 metres away from the 'Enrica Lexie', changed its course away from the 'Enrica Lexie'.' It further noted that "Captain Fredy testified that he took over the steering,1854 and “abruptly helmed the boat away”. He steered the “St. Antony” at high speed, and only when he “realized [the bullets] were not hitting the boat” but rather “falling into water” did he slow the boat to “find out what had happened to the two people who were shot”.1856 After the incident, the “St. Antony” headed “towards the seashore”.

In the Arbitral Tribunal’s view, 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”.  It referred to the Judgment dated 10 April 2019 in M/V “Norstar” case (Panama v. Italy).

The Arbitral Tribunal concluded that by interfering with the navigation of the “St. Antony”, Italy acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.

India asserted that Italy infringed India’s right to have its exclusive economic zone reserved for peaceful purposes under Article 88.

India submit\ted that “the use of force by another State is inconsistent with India’s right to have its EEZ reserved for peaceful purposes”. India argued that Article 88 should be read together with Article 301 of the Convention, which prohibits the threat or use of force or any other action inconsistent with the Charter of the United Nations. 1861 According to India, the travaux préparatoires of Article 301 show that it was originally part of Article 88 and hence was intended to clarify “peaceful purposes”.1862 Moreover, India submits that “[c]ommentators generally agree that the peaceful purposes or uses clauses (Articles 88 and 301) should be interpreted as prohibiting activities which are inconsistent with the UN Charter”.1863 India notes that Italy does not seem to dispute this interpretation.

India submitted that Italy breached Article 88 by recklessly “caus[ing] the deaths of two Indian fishermen, endanger[ing] the safe navigation of the fishing boat, and compromis[ing] the lives of the other persons on board the St Antony”.1865 India argues that the “St. Antony” was a small fishing boat travelling at low speed no more than 10 knots, facing a large oil tanker riding high in the sea, “protected by barbed wire along its high-raised decks, and heavily guarded by six well-armed Marines”and having a top speed of 14 knots. 

India submitted that the “Enrica Lexie” “could easily (and it had ample time to) [have] alter[ed] course and out-run the St Antony”, and that it “could have taken further initiatives to warn the St Antony”.1049. India concludes that “the Italian Marines’ use of force was unwarranted and excessive, and their actions not only endangered human life, they took two lives”.

India submitted that there was no reasonable apprehension of any threat to justify the Marines’ acts. According to India, “[e]xcept for one of the accused Marines, who stated that he saw two armed men on the craft, none of the crew of the Enrica Lexie reported that they had seen any armed persons on the small boat, no shots were fired from the craft, no attempt was made by individuals on the boat to board the Enrica Lexie, and the shape and makeup of the St Antony was far from a typical pirate skiff which usually carries ladders and hooks”.

India cited the M/V “SAIGA” (No. 2) case as an example, where, according to India, Guinea had allegedly used excessive and unreasonable force in stopping and arresting the vessel in question. According to India, ITLOS found that “the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances”.

In particular, India submitted that ITLOS referred to the normal practice used to stop a ship at sea, and highlighted that it was only after appropriate actions failed that force could be used “as a last resort”, and even then, “appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered”. While Italy, according to India, seeks to distinguish the present case from the M/V “SAIGA” (No. 2) case on the ground that it involved no risk of collision or hostile boarding, India argues that the Marines “were not under a reasonable apprehension of a security threat and possible collision and hostile pirate boarding”. 

India submits that the present case shares several similarities to the M/V “SAIGA” (No. 2) case: on India’s account, the Marines used “live ammunition”, no evidence shows use or threat of force by the crew of the “St. Antony”, and the Marines “attached little or no importance to the safety of the ship and the persons on board”.

India also relied on the Guyana v. Suriname arbitration (13 July 2019) where, according to India, the Annex VII arbitral tribunal found that “even a threat to a drilling vessel to leave the area or ‘the consequences will be yours’” amounted to “a breach of general international law and the 1982 Convention”.

In India’s view, the Marines’ actions were not only incompatible with the VPD Manual but also
“much more egregious than what happened in the Guyana-Suriname case”, and therefore must
constitute a violation of the Italy’s obligations under the Convention. 1052. India further claims that Italy is “miss[ing] the point” when it argues that the embarking and deployment of the VPDs was not inconsistent with the Charter of the United Nations because it was a measure implemented by the Italian government to protect its vessels from piracy at sea.

According to India, the issue is not the legality of the deployment of the VPDs, but their unjustified use of armed force, and the consequences for the “St. Antony”’s navigation. 

India disagreed with Italy’s claim that it did not breach Article 88 because the Marines’ actions were consistent with the Charter of the UN in the light of the UN Security Council Resolution 2077 (2012), adopted by the Security Council at its 6867th meeting, on November 21, 2012. To the contrary, India maintains that the Marines’ actions were not consistent with either Articles 88 and 301 of the Convention or Article 2, paragraph 4, of the Charter of the United Nations. India submitted that Resolution 2077 was adopted after the present incident and did not authorise the use of force in India’s exclusive economic zone. India argued that a “Security Council resolution must be explicit and sufficiently clear in its mandate in order to constitute an authorization to use force”. Further, Resolution 2077 does not include the phrases “all necessary means” or “all necessary measures”, which the Security Council uses where it authorises the use of force. India asserted that the Marines’ use of force was unnecessary as, in India’s view, the “Enrica Lexie” was under no reasonable apprehension of a security threat or piracy attack. India contended that Resolution 2077 applies only to “the situation in Somalia and shall not affect the rights or obligations or responsibilities of Member States under international law, including […] the Convention”.

Concerning Italy’s allegation that the actions of Marines should be adjudged by the State which has jurisdiction, India submitted that it is “not asking this Tribunal to decide on whether the Marines are guilty under domestic criminal law of either State”. Instead, India submitted that it “is  claiming that Italy bears international responsibility for its violation of UNCLOS under international law”. India dismissed Italy’s complaint that India had failed to adduce any evidence that Italy intended to pursue a breach of the peace as required to show a breach of Article 88 of the Convention.1887 In India’s view, under international law, a showing of purpose or intent is not necessary for establishing an internationally wrongful act as long as the act has occurred.

The Arbitral Tribunal observed that, as pointed out in the Virginia Commentary, Article 88 sets out the general principle that the high seas are to be reserved for peaceful purposes and that this principle is also confirmed in Article 301 concerning peaceful uses of the seas.1923 The latter calls on all States to:

refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations. It is noted that in the Virginia Commentary that there is nothing on the record to connect Article 301 with Article 88. At the same time, Article 301 can be used as an interpretive guide to Article 88. The Arbitral Tribunal observed that Article 301 of the Convention, which is drawn from Article 2, paragraph 4, of the Charter of the United Nations, is applicable to all activities dealt with by the Convention and would not seem to add anything to the obligations of States that existed prior to the conclusion of the Convention.

Article 2, paragraph 4, of the Charter of the UN provides: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Thus, under the Charter of the United Nations, the use of force is not completely prohibited if it is consistent with the Charter and with other rules of international law. This means that pursuant to Article 301 of the Convention, the use of force is not completely excluded on the high seas. It clearly follows from the articles of the Convention related to the fight against piracy that all States can take the necessary measures, including enforcement measures consistent with the Convention and the Charter of the United Nations, to protect their vessels against pirate attacks. Such measures cannot be viewed as a violation of Article 88 of the Convention or as an infringement on the rights of the coastal State in its exclusive economic zone. This is confirmed by Resolution 2077, which is cited by both Parties.

By that Resolution, the Security Council of the United Nations reaffirmed that international law, as reflected in UNCLOS, sets out the legal framework applicable to combating piracy and armed robbery at sea as well as other ocean activities, and: commend[ed] the efforts of flag States for taking appropriate measures to permit vessels sailing under their flag transiting the High Risk Area to embark vessel protection detachments and privately contracted armed security personnel and encouraging States to regulate such activities in accordance with applicable international law and permit charters to favour arrangements that make use of such measures.

It is an established fact that the Italian Marines were on board the “Enrica Lexie” to protect it against potential pirate attacks. As has also been noted in the present Award, the Arbitral Tribunal is of the view, on the basis of information available, that during the incident of 15 February 2012, the Marines acted under the apprehension that the “Enrica Lexie” was under a pirate attack and therefore took actions, the domestic law aspects of which are to be determined by a competent criminal court, to protect the “Enrica Lexie” against a perceived pirate attack.

The Arbitral Tribunal concludes that Italy did not breach Article 88 of the Convention.

India requested the Arbitral Tribunal to adjudge and declare that its counter-claims are admissible and that, “[b]y firing at the St Antony and killing two Indian fishermen on board, Italy”:
(4) violated India’s sovereign rights under Article 56 of UNCLOS;
(5) breached its obligation to have due regard to India’s rights in its EEZ under Article 58(3) of UNCLOS;
(6) violated India’s freedom and right of navigation under Articles 87 and 90 of UNCLOS; and
(7) infringed India’s right to have its EEZ reserved for peaceful purposes under Article 88 of UNCLOS.

India requested that the Arbitral Tribunal order Italy to “make full reparation for its breaches of Article 56, 58(3), 87, 88 and 90 of UNCLOS”.

Having found that, by interfering with the navigation of the “St. Antony”, Italy acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90, of the Convention, the Arbitral Tribunal examined 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”. Specifically, full reparation shall take the form of restitution, compensation and satisfaction, either singly or in combination. 

The Parties, at the present stage, did not present detailed submissions to the Arbitral Tribunal as to the injury suffered by India. While India has requested the Arbitral Tribunal to order Italy to make full reparation, the Parties concur that the contents of any obligation on either Party to make reparation should be determined, if necessary, in a subsequent phase of these proceedings. Specifically, Italy has expressed the view that “all matters of quantum of compensation should be held over to be addressed in a subsequent phase”. India, on its part, has indicated that, if “the Tribunal were of the opinion that compensation [to Italy] is justified, it should in any case be held over in order to be addressed in a subsequent phase. India takes the same position with regard to its own counterclaims”.

Although the Arbitral Tribunal notes that the Parties have agreed that the question of reparations may be dealt with in a subsequent phase of the proceedings, the Arbitral Tribunal considers it appropriate to make the following observations. 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 Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention constitutes adequate satisfaction for India.1934 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 Article 87, paragraph 1, subparagraph (a), and Article 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.

Consistent with the Parties’ positions, the Parties are invited to consult with each other with a view to reaching agreement on the amount of compensation due to India. 

The Arbitral Tribunal shall retain jurisdiction, should either Party 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. Should no such application be received within one year after the date of the present Award, the proceedings shall be closed.

Based on Article 21 of the Rules of Procedure, Italy submitted that it is appropriate for the Arbitral Tribunal to “make an award of costs to Italy that reflects India’s breaches of UNCLOS and other relevant rules of international law as pleaded in this Memorial”. India contended that Italy’s costs claim, “which is not based on any justification or reproduced in Italy’s submissions, is not serious in the circumstances of the case and does not deserve any rebuttal”.

Annex VII, Article 7, to the Convention provides that, “[u]nless the arbitral tribunal decides otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares”. Article 21 of the Rules of Procedure applicable in this Arbitration states that “[u]nless decided otherwise by the Arbitral Tribunal, each Party shall bear its own costs”. In the view of the Arbitral Tribunal, there are no “particular circumstances” that would lead the Arbitral Tribunal to any other allocation of costs. Accordingly, no particular cost order from the Arbitral Tribunal is called for in this case.

The Arbitral Tribunal n relation to jurisdiction and admissibility found, by four votes to one, in respect of Italy’s Submission (1) and India’s Submission (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 of 15 February 2012 involving the “Enrica Lexie” and the “St. Antony”, and that the dispute concerns the interpretation or application of the Convention.

It found, by four votes to one, that the Arbitral Tribunal has jurisdiction over the dispute, subject to its decision on the specific objections to its jurisdiction raised by India in its Submission (1.a).

It found, unanimously, that India’s counter-claims are admissible. 

It found, by three votes to two, in respect of Italy’s Submission (2)(f), that Article 2, paragraph 3, Article 56, paragraph 2, and Article 58, paragraph 2, of the Convention are not pertinent and applicable in the present case.

It found, by three votes to two, in respect of Italy’s Submission (2)(f) and India’s Submission (1.a), that it has jurisdiction to deal with the question of the immunity of the Marines.

It found, unanimously, in respect of India’s submission (1.a), 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, the Arbitral Tribunal found, unanimously, in respect of Italy’s Submission (2)(b)-(e) and (g), a. that India has not acted in breach of Article 87, paragraph 1, subparagraph (a), of the Convention; b. that India has not violated Article 92, paragraph 1, of the Convention; c. that Article 97, paragraphs 1 and 3, of the Convention are not applicable in the present case; d. that India has not violated Article 100 of the Convention and that therefore Article 300 cannot be invoked in the present case.

It decided, by three votes to two, in respect of Italy’s Submission (2)(f), 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. 

It decided, by three votes to two, in respect of Italy’s Submission (3)(a) and (c), 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.

It found, in respect of India’s Submissions (4), (5), and (7), a. by three votes to two, that Italy has not violated India’s sovereign rights under Article 56 of the Convention; b. by three votes to two, that Italy has not violated Article 58, paragraph 3, of the Convention; c. unanimously, that Italy has not infringed on India’s rights under Article 88 of the Convention.

It found, unanimously, in respect of India’s Submission (6), that by interfering with the navigation of the “St. Antony” Italy has acted in breach of Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention.

It decided, unanimously, in respect of India’s Submission (8), a. that a finding in the present Award that Italy has breached Article 87, paragraph 1, subparagraph (a), and Article 90 of the Convention constitutes adequate satisfaction for the injury to India’s non-material interests; b. that as a result of the breach by Italy of Article 87, paragraph 1, subparagraph (a), and Article 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; c. that the Parties are invited to consult with each other with a view to reaching agreement on the amount of compensation due to India referred to in paragraph 6(b) above; d. that the Arbitral Tribunal shall retain jurisdiction should either Party 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, it decided that each Party shall bear its own costs.  

Joint Dissenting Opinion of Dr. Sreenivasa Rao Pemmaraju (Dr. P.S. Rao) and Judge Patrick Robinson

Concurring and Dissenting Opinion of Dr. Sreenivasa Rao Pemmaraju (Dr. P.S. Rao) 

Dissenting Opinion of Judge Patrick Robinson 

Indian manufacturers of asbestos based products are also guilty of manslaughter

Responding to a letter addressed to the Cabinet Committee on Economic Affairs on the subject of "Why India must support inclusion of Chrysotile asbestos in the UN’s list of Rotterdam Convention", Hazardous Substances Division, Ministry of Environment Forests & Climate Change has informed on 26 June, 2023 that “the decision to include chrysotile asbestos in the UN list was deferred at the eleventh meeting of the Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent Procedure (PIC) for Certain Hazardous Chemicals and Pesticides in International Trade (RC COP-11) in Geneva during 1-12 May 2023.”

MoEFCC has concluded that “the agenda items related to Chrysotile Asbestos, was deferred as consensus was not reached on its listing in Annex III” of the UN’s Rotterdam Convention. Prior to this meeting of COP-6, COP-7, COP-8, and COP-9 decided to defer further consideration of the chemical to their corresponding subsequent meeting. At COP-10,the Russian Federation, Kazakhstan, Zimbabwe, India and Pakistan, and the International Alliance of Trade Union Organizations “Chrysotile” opposed its listing amidst vociferous demand for its listing by environmental, occupational and human rights groups.

It may be recalled that Chrysotile asbestos is a candidate chemical in the category of industrial chemicals that has been recommended by the Chemicals Review Committee for listing in Annex III to the Rotterdam Convention but for which the Conference of the Parties (COP) has not yet been able to reach consensus. The COP, at its 3rd meeting in 2006, adopted a decision on chrysotile asbestos, which, among others, encourages Parties to make use of all available information to make informed decisions regarding its import and management, and to inform other Parties of those decisions, using the information exchange provisions laid down in Article 14 of the Rotterdam Convention. COP-3 also decided that the agenda for its next ordinary meeting shall include further consideration of a draft decision to amend Annex III to the Rotterdam Convention to include chrysotile asbestos.

At COP-4 a decision was adopted on chrysotile asbestos wherein it was decided that the agenda for its next ordinary meeting shall include further consideration of a draft decision to amend Annex III to the Rotterdam Convention to include chrysotile asbestos. COP-5 was also not able to reach consensus and agreed to annex a draft decision to its report, which is set out in annex IV to the COP-5 report.

MoEFCC’s reply states that it“is the nodal Ministry for coordinating the implementation of the Rotterdam Convention. The convention's objective is to promote shared responsibility and cooperative efforts among parties in the international trade of these chemicals so as to protect human health and the environment, and contribute to the environmentally sound use of chemicals.”It reveals that “inputs on the agenda items were finalized based on the consultation held with stakeholders including Central Government/Ministries/Agencies.” But it does not disclose the names of the non-governmental stakeholders who were consulted. For a long time India’s position on chrysotile has remained hostage to the tremendous clout of the Russian asbestos industry and some 18 major manufacturers of asbestos based products in India. Government is yet reveal the names of environmental and occupational health which it consulted in this regard.       

In its reply to MoEFCC’s communication ToxicsWatch wrote, “instead of waiting for COP-12 of Rotterdam Convention to decide it's inclusion in the UN list, our government should immediately inform the Secretariat of the Rotterdam Convention that it supports  inclusion of Chrysotile asbestos in the UN list of hazardous chemicals. In the aftermath of the reply of our minister of health and chemicals in the Parliament on April 5, 2022 it is evident that out of 2603 workers, 10 cases were found to be suspected cases of asbestos related disorders. This reply echoes the recommendations of the UN’s  Chemical Review Committee of the Rotterdam Convention.This is required pursuant to our Occupational Safety Health and Working Conditions Code, 2020 that recognises hazardous nature of all kinds of asbestos including the chrysotile asbestos and the diseases caused by it.” 

It has drawn the attention of the MoEFCC towards the conviction of Stephan Schmidheiny, a Swiss asbestos billionaire for manslaughter. He has been found guilty of causing death of 392 people due to carcinogenic asbestos.He has been sentenced to 12 years in jail on aggravated manslaughter charges connected to the deaths of hundreds of people due to asbestos exposure by an Italian court on 7 June, 2023 has lessons for India. Similar fate awaits the manufacturers of asbestos based products in India who are endangering the lives of all present and future generations of Indians. The verdict is relevant for India because Eternit company with which he was associated had plants in India as well. There is no public or private building in India which is asbestos free including the new parliament building. It is quite sad that MoFCCC continues to grant environmental clearance to asbestos based factories. 

 Notably, Chief Minister of Bihar has given an assurance in the state legislature that he would not allow asbestos based plants in the state. The construction and operation of five such plants have been stopped. But MoEFCC's EAC has given environmental clearance to a unit of Chennai based Ramco Industries Ltd in Bihiya, Bhojpur, Bihar. This company is operating two units using clearance for one unit. It is the same company which gave a compensation of Rs 5, 000 on the death of its worker. Bihar State Pollution Control Board had cancelled it NOC but it managed to get relief from Patna High Court on procedural grounds. This company has created a public health crisis in Bihiya, Bhojpur. It is relevant to recollect that Calcutta High Court and Kerala State Human Rights Commission has recommended ban on use of asbestos based products. All the places where asbestos based factories or products are located must be made asbestos free. 

There is a compelling logic for government authorities to take cognisance of India’s asbestos legacies, and the implications of the ongoing import, manufacture, procure and use of white chrysotile asbestos mineral fiber despite having banned its mining because it cannot be made safe for human health throughout the life cycle.India uses only imported chrysotile asbestos. Notably, 85 % of the imported asbestos is from Russia.

In the backdrop of the Italian court’s verdict, the Government of India and State Governments must ensure compliance with the six specific directions given by Indian Supreme Court on 27 January, 1995 in Consumer Education Resource Centre vs. Union of India case. Both Union and State Governments must issue an order seeking a database of victims of asbestos related diseases, asbestos laden buildings, an inventory of asbestos based products, a database of hospitals which can diagnose the disease and a database of agencies which are competent to decontaminate asbestos from existing buildings.

It is high time the MoEFCC and other ministries of Government of India and concerned departments of State Governments took steps to make the manufacturers of asbestos based products liable for knowingly exposing the present and future generation of Indians to killer fibers. There is a compelling logic for charging these manufacturers with the offense of manslaughter.

When a chemical is listed in Annex III to the Rotterdam Convention, it does not lead to ban of the hazardous chemical. It does not mean the chemical cannot be exported. The listing paves the way for an information-sharing process. It requires the PIC of importing countries to share information about the adverse impact of the chemicals in question. It creates awareness about the harmful effect of the hazardous chemicals.   

India’s support for listing of chrysotile asbestos in the UN’s PIC list (Annex III) of hazardous chemicals will be consistent with its domestic laws and Supreme Court’s verdict. It will demonstrate that India’s position with regard to public health is not dependent on the dictates coming from the Russian Federation, Kazakhstan, Zimbabwe and Pakistan, and the International Alliance of Trade Union Organizations “Chrysotile”.