Massimiliano Latorre and Salvatore Girone, the two Italian guards arrested by the Indian authorities (ansa)
In an earlier blog post I discussed the developing international controversy between India and Italy regarding Italian military guards on an oil tanker that allegedly shot and killed two Indian fishermen after confusing them for pirates. India and Italy dispute which of the two countries can properly exercise jurisdiction over the incident. Much of this dispute is based on disagreement over the location of the oil tanker and the fishing boat when the incident took place. India claims that the vessels were in her territorial waters at the time of the incident while Italy maintains that the incident occurred on the high seas. In the last post I set out how the merits of the case might be resolved concluding that India can properly exercise jurisdiction over the incident. This post will discuss what international fora are available to the parties to settle their dispute.
Both Italy and India are parties to the United Nations Convention on the Law of the Sea (UNCLOS) that codifies much of modern international law dealing with events on the seas and covers many issues central to the India/Italy dispute. For example, article 111 addresses the conditions under which it is permissible for a State to stop a vessel from another State on the high seas. Directly implicated in this case is article 92 of the convention which reads, “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.”
Alleging the application of article 92 of UNCLOS brings the dispute within the ambit of that treaty triggering its dispute resolution provision. Article 287 provides in pertinent part,
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. […]
5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree. (emphasis added)
Accordingly, absent an agreement or declaration, the dispute over the application and interpretation of article 92 will be subject only to arbitration as set out in Annex VII to UNCLOS. Italy filed such a declaration stating,
In implementation of article 287 of the United Nations Convention on the Law of the Sea, the Government of Italy has the honour to declare that, for the settlement of disputes concerning the application or interpretation of the Convention and of the Agreement adopted on 28 July 1994 relating to the Implementation of Part XI, it chooses the International Tribunal for the Law of the Sea and the International Court of Justice, without specifying that one has precedence over the other.
In making this declaration under article 287 of the Convention on the Law of the Sea, the Government of Italy is reaffirming its confidence in the existing international judicial organs. In accordance with article 287, paragraph 4, Italy considers that it has chosen “the same procedure” as any other State Party that has chosen the International Tribunal for the Law of the Sea or the International Court of Justice.
India has not filed a declaration under article 287. However, she has filed a declaration in accordance with article 36(2) of the Statute of the International Court of Justice (ICJ) accepting compulsory jurisdiction at that institution. All things being equal, this declaration would normally be capable of establishing jurisdiction with the ICJ. This would be accomplished by reading the Italian declaration under UNCLOS with the Indian declaration pursuant to the ICJ statute both of which accept the jurisdiction of the ICJ. This is not the case when it comes to this dispute about the interpretation of UNCLOS. The Indian acceptance of ICJ jurisdiction comes with several exceptions. Some relevant ones are,
(1) disputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement; […]
(5) disputes with regard to which any other party to a dispute has accepted the compulsory jurisdiction of the International Court of Justice exclusively for or in relation to the purposes of such dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified less than 12 months prior to the filing of the application bringing the dispute before the Court; […]
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction; […]
India, in its ICJ declaration, explicitly excluded compulsory jurisdiction before the ICJ over cases interpreting multilateral treaties unless all parties to the treaty are involved in the case. UNCLOS is a multilateral treaty and not every party to the treaty would be part of the ICJ case over the dispute between India and Italy. If these conditions hold, and the case is to be based on article 92, UNCLOS will govern the dispute and Annex VII will apply requiring arbitration.
There is also the possibility of obtaining jurisdiction before the ICJ by re-framing the issue as one of general public international law. Article 92 of UNCLOS addresses jurisdiction over a ship on the high seas, it does not address the principles for determining the location of an action for the purposes of establishing criminal jurisdiction. This jurisdictional question relates to principles of general public international law and has been decided by the world court in the past (most famously the Lotus case decided by the PCIJ long before UNCLOS). The Indian acceptance of ICJ jurisdiction should be valid if the legal issue is outlined as going to general competence of States to legislate and enforce the law. India would therefore be subject to ICJ jurisdiction if Italy were to file an application with the Court. This formulation of the legal issue avoids the direct application of UNCLOS and renders Annex VII’s arbitration requirement inapplicable. It is worth pointing out that India does not accept compulsory jurisdiction where another State involved in the case only recently accepted ICJ compulsory jurisdiction. However, Italy need not accept compulsory jurisdiction to file a case with the ICJ.
In short, there are likely two different international fora that can hear a dispute between Italy and India regarding the exercise of jurisdiction over the Italian military guards that allegedly shot and killed two Indian fishermen, a UNCLOS arbitration tribunal and the ICJ.
The option of bringing the dispute before a UNCLOS arbitration tribunal pursuant to article 287 and Annex VII UNCLOS seems to be the most straight forward. Both India and Italy are parties to UNCLOS and the incident involves actions that took place on the seas (something that would appear on its face to fall under the ambit of UNCLOS). Any such decision would be strictly limited to the interpretation of UNCLOS (due to the competency of the dispute resolution mechanism) and whatever jurisdictional principles the treaty purports to create between the States Parties on the seas.
The option of bringing the case to the ICJ is more appealing. Such as case, while speaking specifically to the location of “events” on the seas for the purpose of jurisdiction, could potentially be important for the way we understand the extraterritorial jurisdiction of States generally. The Court would have the opportunity to elaborate on the principles of territorial jurisdiction established in Lotus, a case that dates from 1927 and is quickly approaching its centennial mark. The ICJ as an institution has a greater scope and will likely consider the consequences of its decision on other areas of the law, something a tribunal focused only on the law of the sea will not do. The possibility of a meaningful decision that will progressive advance the law is much more probable at the ICJ.
This post has not discussed other non-judicial forms of dispute resolution that that India and Italy could potentially select to put an end to their disagreement. For example, they could request mediation by the UN Secretary General, or they could submit the issue to a single arbitrator. They could also resolve the issue diplomatically. Given the current discourse on the issue, however, it is unlikely that the dispute will be resolved diplomatically. For similar reasons, selecting a single mediator or arbitrator seems unlikely. I have focused on the UNCLOS provisions and the ICJ as I think they are the most likely to be involved if the issue moves from the realm of intergovernmental wrangling to that of litigation.
 For a more detailed discussion on this point, and the meaning of article 92 UNCLOS, see my earlier post.
 Articles 35-36, ICJ Statute.
 Case of the “S.S. Lotus”, PCIJ, Series A, No. 10, 1927.