ToxicsWatch, Journal of Earth, Science, Economy and Justice

In the backdrop of environmental and human disasters in Hiroshima, Nagasaki and Fukushima, there is a compulsion to think about the water footprint of 14, 500 nuclear weapons, 2, 000 nuclear tests and 495 nuclear reactors. Within India, the water footprint of 23 nuclear reactors in eight nuclear plants is yet to be factored in. The nuclear plant in Narora, Bulandsahar, Uttar Pradesh and the upcoming nuclear plant in Rooppur, Pabna, Bangladesh poses a threat to the residents of Ganga river basin.

UNDP’s report of 1994 introduced a new concept of human security, which equates security with people rather than territories, with development rather than arms. It recognised that water faces biggest environmental threat. It regards water scarcity as a factor in ethnic strife and political tension. It referred to the silent emergencies caused by polluted water and degraded land which puts lives and livelihoods at risk.

UNDP’s special report of 2022 on human security underlined that natural systems provide food and water provide besides ecosystem services such as watershed protection, and climate control. But in 123 countries an increase in wealth between 1990 and 2014 has been accompanied by a decline in natural capital. It recognises that cyberwarfare can disrupt electricity grids and water system.

The simile of water flow for data flow for creating data grid and water grid is remniscent of Marx’s observation regarding capitalism’s tendency towards centralisation, which ultimately overpowers the centrefugal forces of competition. Digitalisation and centralisation of data seems to entail colonisation of the ecological space and human space.  

UN Convention on Law of the Non-Navigational Uses of International Watercourses came into force in August 2014 after the ratification by 36 countries. None of the countries in the Himalayan watershed have ratified it because of Article 7 of the Convention which requires that States “take all appropriate measures to prevent the causing of significant harm” to other States sharing an international watercourse in the upstream and downstream. The interests of upstream and downstream States do no seem to converge as far as exploitation of the water is concerned. The definition of the watercourse in the Convention is quite parochial.      

The idea of water grid by linking rivers was rejected by Prof. S. R. Hashim headed National Commission on Integrated Water Resources Development Plan in 1999. But it too re-birth because of Supreme Court’s orders in 2003 and 2012. The proposal of diversion of some 39 rivers for Interlinking of Rivers (ILR) project, the world’s biggest project is likely to give birth to water security issues because “international watercourses” like Ganga, Kosi, Mechi and Brahmaputra are involved. It can adversely impact relations with Nepal, Bangladesh and China. Under Indo-Bangladesh treaty on sharing of Ganga waters, Ganga is deemed a deficit river but as part of the ILR project it is presented as a surplus river by National Water Development Agency (NWDA), an agency whose only mandate is to link major Himalayan rivers and Peninsular rivers at any environmental and human cost. The economic rationality of ILR like projects is contrary to water cycle and biological cycle because NWDA holds that there are “surplus” rivers, “deficit” rivers and water which goes o the sea is wasted. This assumption is unscientific and contrary to folk wisdom. It treats rivers as pipelines which can be twisted, mutilated and diverted for the ILR project. The project entails re-writing the geography of South Asia. It is caught in a time warp. The data on which the project is based from the 1970s. It ignores the fact that Himalayan rivers are unpredictable. This pre-climate crisis era project does not factor in green house gas emissions due to colossal land use change. The project is unfolding despite opposition from several states. It gives birth to myriad gnawing human security concerns.     

Disregarding the approach of the UNDP, UNFCCC and the G-77 group of countries, which focuses on human security, some members of the UN Security Council (UNSC) has been unsuccessfully attempting to establish a natural security narrative for climate crisis. UNSC failed to do in 2007, 2011 and 2020 and 2021 because of opposition from Russia, China, India and G-77 countries. The natural security narrative emerged out of a report entitled “National Security and the Threat of Climate Change”, from a US government-funded national security think tank, the Center for Naval Analyses. The Military Advisory Board and the study team that authored the report received briefings from the U.S. and U.K. intelligence community, climate scientists, and business and state leaders. The US military report recommended, "Military planning should view climate change as a threat to the balance of energy access, water supplies, and a healthy environment, and it should require a response." There are attempts underway to pursue this narrative despite failure at the UNSC. In February 2023, World Economic Forum Annual Meeting took the position that "Water security is a national security issue." NATO’s Parliamentary Assembly has published a draft report entitled “Turning The Tide: Addressing the Impact of Water Insecurity on Allied Security” in May 2024.    

International financial institutions (IFIs) like World Bank Group has been promoting contradictory and inconsistent projects wherein they consider river water quality improvement projects to be different from water quantity projects like dams. These institutions do not recognise that when the flow of water in the river is depleted, water quality deteriorates. Such projects are a threat to water security in particular and the river basins in general.

The disasters in the Himalayas and Western Ghats remind that water has memory. It never forgets itS course. The military people, economists and technocrats remain deaf to the message from the rivers. The solution lies in adopting genuine river basin and watershed based approach beyond parochial anthropocentric nation-state framework, which normalises and naturalises financialization and monetisation of natural wealth.          

Dr. Gopal Krishna's lecture at a webinar on "Security at Crossroads: Land, Food, Water" organised by the Calcutta Research Group (CRG) on 13th August 2024.  The other speakers were: Dr. Rajendran Narayanan, a Data Scientist who teaches at Azim Premji University and Dr. Meenakshi Nair Ambujam, a post-doctoral fellow affiliated with the Department of International Development at the University of Oxford. The webinar was chaired and moderated by Prof. Sabyasachi Basu Ray Chaudhury Professor, Department of Political Science, Rabindra Bharati University, Kolkata.

The event details to the first webinar of the series "Security at Crossroads" is at http://www.mcrg.ac.in/Security_Studies/Security_Studies_Webinars.asp and the video link is available at https://www.youtube.com/watch?v=aO91sIHSYH4

Environmental health researchers, lawyers and activists are at their wits' end because an ideology of “development at any cost” is creating an impression that environmental regulations are a hurdle in the process of financial growth and development.

The threat to the integrity of the natural systems is a threat to human health, and such threats have become routine because of myopic industrial agriculture, blind urban development, regressive transport systems and criminal neglect of non-human species. While legislative safeguards for environmental protection do seem to exist on paper, homicidal ecological lawlessness has led to rampant industrial pollution, soil erosion, agricultural pollution, and genetic erosion of plant resources. This trend must be arrested in right earnest. 

It is evident that the Cabinet Committee on Economic Affairs (CCEA), which gives mandate to your ministry, is not alive to the collapsing ecosystem which has enveloped the country in the unprecedented heat wave. The stark question is whether the CCEA will let anyone make the structural changes required in terms of reversing the current policies which have resulted in manifest adverse impact on environmental health or whether poisoning of our blood streams and amputation of river basin systems would continue to be deemed collateral damage.

Be it blood contamination, congenital disorders, preventable but incurable cancer or extinction of known and unknown living species on our planet, it creates a compelling logic to re-examine the premises of Industrial Revolution and design a new one. In the developed world the model of development is under interrogation because of environmental problems.

Between 1975 and 1995 the Indian economy grew 2.5 times, industrial pollution went up four-fold, and vehicular pollution went up eight-fold. This analysis seems factually correct but it has ended up internalising the pollution and externalising the human cost of pollution. In such a context, health indicators of the deteriorating environment is witnessed in terms of a double burden of disease but the political class seems to have been rendered spineless by the corporate empires.

Environmental health crisis merits more than rhetoric or cosmetic solutions. If one were to identify some key areas which deserve immediate and urgent remedial attention of the new government, it would be:

1. Publish a database of environmental criminals and fugitives with their photographs and profiles with the name of the companies which fall under the 64 heavily polluting industries under the Red category (highly polluting industries), 34 moderately polluting industries ('Orange' category) and 54 'marginally' polluting units ('Green' category). Also publish a list of India's Most Wanted Environmental Criminals with wanted posters.

2. The environment ministry must get enhanced budgetary allocation for rejuvenating the decaying institutional infrastructure including the Central Pollution Control Board. One parliamentary report too calls for saving the CPCB, the nodal body for regulating environmental norms. Currently, environment clearance, compliance and monitoring are in a very sorry state. It should be strengthened.

The Parliamentary Standing Committee on Science and Technology, Environment and Forests said the CPCB is being 'reduced to a near-defunct body'. The 141-page report of the steering committee on the environment and forests sector for the eleventh five year plan prepared by Planning Commission deals with environment and development. It refers to 'the regulatory challenge' and states: 'In the past some years, intensive economic growth, which has increased economic wealth, has led to massive pollution and degradation of the natural environment. One of the main reasons for this is that the regulatory and institutional framework to control pollution and degradation of natural resources is unable to keep pace with the rapidly changing economic, social and environmental situation in the country.'

'The number of polluting activities -- and the quantum of pollution generated -- has increased in the last several years. Furthermore, newer and newer environmental challenges are thrown up -- from solid waste disposal, to disposal and recycling of hazardous waste, to toxins like mercury, dioxins and activities like ship-breaking to management of vehicular pollution.'

It is high time environmental regulation keeps pace with environmental crimes. Even Interpol has a Pollution & Environment Crime Working group; India too needs one.

3. Stopping transboundary movement of polluting technologies, hazardous wastes, creating an inventory of hazardous chemicals and wastes besides conducting an environmental health audit along with the ministry of health to ascertain the body burden through investigation of industrial chemicals, pollutants and pesticides in umbilical cord blood. In one such study in the US, of the 287 chemicals detected in umbilical cord blood, 180 were known to cause cancer in humans or animals, 217 are toxic to the brain and nervous system, and 208 cause birth defects or abnormal development in animal tests. Absence of such studies in India does not mean that a similar situation does not exist in India. Until and unless we diagnose the current unacknowledged crisis, how will he regulatory bodies predict, prevent and provide remedy.

Currently, India is a victim of the unfolding Lawrence Summers Principle. Lawrence Summers, director of the White House's National Economic Council for US President Barack Obama as a World Bank chief economist, sent a memo to one of his subordinates justifying transfer of harmful chemicals from developed countries to developing countries. Indian position on the Basel Convention, Rotterdam Convention and the recently adopted IMO Convention reveals the same. 

Indian stance seeks to turn country into a 'landfill' for foreign hazardous waste. 

 

Revealed Maersk’s Murky Deals Promote Waste Imperialism And Lobbying For Proposed Regressive Hong Kong Convention

 

Our ecological space is a living entity but it is faced with the cannibalistic propensities of illegitimately totalitarian scientism which is married with political consensus. Its linear, piecemeal and closed technological thinking fails to acknowledge that no unlimited development is possible in the nature of things. 

4. Adopt mandatory emission cuts as a national, domestic and enforceable objective even as we affirm the validity of the 'principle of historical responsibility' which is indisputable and incontrovertible. The current stance which states, 'subjecting national aspirational efforts to an international compliance regime may result in lower ambitions' is fine but our ability to reach a certain emission reduction target under a national plan as a national legal obligation would enhance India's negotiating position. In fact the National Action Plan for Climate Change should be revisited to ensure visible and truly 'credible actions' within our own framework.

It is inconsequential for citizens whether some post-dated international humanitarian law is being followed in letter or not, what is of consequence is whether or not its governmental actions factor in the spirit behind a law that will have ramifications not only for the present generation but also for the future generations. Disassociation with carbon trade is also a must because benefits from it are suspect.

5. Get the National Water Policy, National Environment Policy and the industrial policy rewritten for adoption of a river basin approach to undo the unhealthy legacy of bulldozing rivers, flood plains, forests, biodiversity, natural drainage etc in manner as if citizens and natural processes are irrelevant. 

The National Council for Applied Economic Research has also made recommendations for the setting up the National Commission for Basin Management. This is required also as a response to the UN's Intergovernmental Panel on Climate Change's assessment report that states, 'Glaciers in the Himalayas are receding faster than in any other part of the world and, if the present rate continues, the likelihood of them disappearing by the year 2035 and perhaps sooner is very high if the Earth keeps warming at the current rate'.

The River Basin Authority must be fashioned in manner that it does not remain a rubber stamp or a paper tiger because if all industrial projects are cleared by Cabinet Committee on Economic Affairs, what role can an effete body of the environment ministry do to undo the wrongs committed by the CCEA? In fact, if one undertakes an investigation of institutional accountability for Bhopal gas leak disaster, it is quite likely that the buck would stop at the CCEA. The environment ministry must be empowered enough to save itself from its regressive influence.

6. Get a District wise state of environmental health report prepared in order to assess the current state of the local ecosystems.

7. Restore Environment Impact Assessment (EIA) Notification of 2006, make it stringent by ensuring preparation of EIA reports by independent institutions and abandon the proposed Environment Supplement Plan (ESP).  

8. Initiate process of setting up of functional environmental courts in each district by introducing a Bill in the Parliament on the lines of Human Rights Courts provided for in the Protection of Human Rights Act.

9. Undo the amendment done in the Biological Diversity Act in the supreme interest of present and future generations and top safeguard our biodiversity which faces grave threats from vested interests.

10. Stop giving environmental clearances to asbestos based factories and projects in keeping with the 19 page long Vision Statement on Environment and Human Health of your ministry which states “4.3.1 Environmental epidemiological studies are required to be carried out near to industrial estates and hazardous waste disposal sites to estimate the extent of health risks including from asbestos. Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out.” As a first step get a Register of asbestos laden buildings prepared so that a road map can be prepared for their decontamination. The state ought to prepare a Register of those workers who handle asbestos and the victims of primary and secondary exposure from asbestos fibers.    

The Concept Paper dated September 2011 of Union Ministry of Labour, Government of India presented at the EU-India Seminar that reveals that the Central Government is planning to eliminate asbestos from the country due to health reasons.  

Supreme Court's order dated January 27, 1995 and World Health Organisation (WHO)'s outline for the Development of National Programmes for elimination of asbestos related diseases' make a case for stopping all asbestos based products to prevent the imminent public health crisis as a consequence of which more than 55 countries have banned all forms of asbestos.   

It will be great if the new government can pursue remedial measures for present and future generations before children get engulfed in the epidemic of incurable but preventable asbestos related diseases. This is of seminal importance to prevent preventable diseases and deaths.

11. Make sure that each union ministry has an environment department which submits a report on the ecological footprint of their actions and decisions.

12. Undo the amendment to the Forest Conservation Act, 1980, which has changed the definition of forests, amednment to the rules under the Environment Protection Act and the voluntary Green Credit Programme. Some amendments delegated environmental regulation to state level institutions who do not have the technical competence and laboratories to undertake regulation. India has lost 2.33 million hectares of tree cover since 2000, according to the latest data from the Global Forest Watch monitoring project, which is equivalent to a six percent reduction in tree cover during this period. The data revealed that 95 percent of the loss has occurred within natural forests between 2023-2023. According to research published in The Lancet last year, the country saw a 55% increase in heat-related deaths between 2000-04 and 2017-21. Fatal Indian incidents reveal eroded regulations. A Committee should be set up to examine the dilutions of the norms, delegations and programmes.      

13. Stop biomass burning and waste incineration based energy projects to combat air pollution 

14. Stop dumping of hazardous wastes/end-of-lfe ships in Indian waters. Between 2014-2023 some 1200 toxic end-of-lfe ships have been transferred to Alang beach, Bhavnagar, Gujarat by foreign shipping companies/countries to escape decontamination cost in their own country. Workers and local communities are routinely exposed to carcinogens including radioactive materials, polychlorinated biphenyls (PCBs), polyvinyl chloride, polyaromatic hydrocarbons (PAHs), tributyltin compounds, mercury, lead, isocyanates and sulfuric acid besides asbestos. 

15. Bring out a White Paper on status of radioactive waste management and enviro-occupational diseases of workers in atomic power plants and laboratories. Pay heed to the recommendations of the paper entitled Radioactive waste management in India: present status and future perspectives

16. Stop world's biggest and most ecologically disastrous project diverting rivers for interlinking them rivers and desist from pursuing the Ganga waterway project. Interlinking of Rivers (ILR) project can lead to Ara Sea kind of disaster.

The terms of reference of the constituted ‘Task Force’ on Interlinking of Rivers’ chaired by B.N. Navalawala has revealed that Supreme Court’s order dated February 27, 2012 in petitioner-less Writ Petition (Civil) No. 512 of 2002 is based on a flawed assumption that there is consensus and unanimity among the states in the matter of Interlinking of Rivers concept/project. The release of the Union Ministry of Water Resources, River Development & Ganga Rejuvenation issued by Press Information Bureau stated that the Task Force “would also device suitable mechanisms for bringing about speedy consensus amongst the states and also propose suitable organizational structure for implementing the Interlinking of Rivers. The Task Force would also try to forge a consensus amongst the states in order to take forward the speedy implementation of the Interlinking of Rivers Program.”

It is noteworthy that the terms of reference of the earlier Task Force on Inter-Linking of Rivers under the Chairmanship of Suresh P. Prabhu that was constituted on December 13, 2002 was also tasked to “Devise suitable mechanism for bringing about speedy consensus amongst the States” revealing absence of unanimity on the implementation of ILR project. 

The judgment in the petitioner-less “Networking of Rivers” case inconsistently admitted absence of consensus and unanimity among the states in the matter of Interlinking of Rivers concept/project and still erroneously went on to conclude that there is unanimity and consensus.

The judgment dated February 27, 2012 in the “Networking of Rivers” case was authored by Justice Swatanter Kumar on merits rigorous scrutiny because it seems to establish a disturbing precedent by assuming “consensus” and “unanimity” although 18 States chose not respond to the notice of Supreme Court of India “despite the grant of repeated opportunities to do so.”

The Supreme Court had come to the rescue of a river in the Kamalnath motel case where a hotel company which had stakes of Kamalnath, the then Union Environment Minister who had unilaterally taken a number of measures to divert the course of Beas River near Kulu-Manali in Himachal Pradesh (for instance, earthmovers and bulldozers were used to create a new channel) when floods threatened land in its possession. The court used the Public Trust Doctrine to define the state as a trustee of natural resources.

Government’s National Environmental Policy refers to Public Trust Doctrine saying, “The State is not an absolute owner, but merely a trustee of all natural resources, which are by nature meant for public use and enjoyment, subject to reasonable conditions, necessary to protect the legitimate interest of a large number of people, or for matters of strategic national interest.”

The NEP says, “The broad direct causes of rivers degradation are, in turn, linked to several policies and regulatory regimes. The result is excessive cultivation of water intensive crops near the headwork’s, which is otherwise inefficient, waterlogging, and alkali-salinization of soil.” It also refers to factors causing reduced flows in the rivers and seeks to ensure maintenance of adequate flows. As an action plan for river systems, the NEP expresses its intent to…“mitigate the impacts on river flora and fauna, and the resulting change in the resource base for livelihoods, of multipurpose river valley projects, power plants, and industries.”

The success of a democracy, especially one based on a federal system, depends largely on an impartial and independent judiciary endowed with sufficient powers to administer justice. Judges can import their personal views in interpreting a statute but they must not assume the role of guardians of public policy and should not play god. A distinction must be drawn between personal idiosyncrasy and incorporation of new economic and social policies in the interpretation of law.

The proposal of networking peninsular and Himalayan rivers emerges from a lack of rigorous evaluation of the ecological impacts which would prove disastrous not only to the fishery, but also to the biodiversity and biotic processes that have evolved over the past hundred of millions of years. One cannot expect the judges and legislators to understand but venturing into an area of their ignorance is against all canons of wisdom.

 

In the case in question the judges went on to advise the government that in case consent was not forthcoming from the states, the government should consider passing a legislation to obviate consent of the states for this project. Since criticizing the judges is a criminal offense, the advocates of resistance who are not shackled by their funding sources from among the citizenry and civil society need to keep a watch on the impeachable antecedents and future activities of the judges and legislators because it is quite possible that legislation for ILR or nationalization of rivers may get introduced in the Parliament under the influence of corporate donations to ruling parties. The rampant violation of the statutory principles and natural justice requires a vigilant citizens’ network as opposed to funding agency driven initiatives to investigate as to why the judges and legislators appear to have sold themselves to the ideology of the free market undermining ecosystem beyond repair and democratic rights of its citizens to bring the truth about it public domain.

The networking rivers does not mean drawing some mega litres from one river and pouring it into another like one does with static containers, or even with canals. The ramifications are much wider because a river is not only the water that flows or the channel, which holds the flow rather its much more. The river is the dynamic face of the landscape. “In the drama of history, the ecosystem is not the stage setting; it is the cast”.

In the past the court has rightly and consistently held that large infrastructure projects invariably raise technical and policy issues which the courts are not equipped to handle. In view of the reasons cited above and especially an evolving international law on transboundary rivers there is a clear case for the apex court to review its order on “networking rivers”.

As per National Water Policy, “Water resources development and management will have to be planned for a hydrological unit such as drainage basin as a whole or for a sub-basin, multi-sectorally, taking into account surface and ground water for sustainable use incorporating quantity and quality aspects as well as environmental considerations.” Outlining India’s National Water Policy, the then Prime Minister said that the policy should be people-centered and those communities ought to be recognized as the “rightful custodians of water.”This clearly shows that networking of river is contrary to the Government’s stated policy which means vested interests are so powerful that they can subvert both executive’s and judiciary’s role.

Given such a background the judgment in the Writ Petition (Civil) No. 512/2002 is very crucial. In the days, months and years ahead it is likely to reveal Indian Government’s exact policy vis-à-vis networking of rivers and court’s considered response while dealing with contempt applications in the face of sub continental protest. This case is likely to give birth to a new international legal order to safeguard the legitimate regime of river basins from the obsolete notions of ‘conquest over nature’, ‘surplus’ rivers and taming rivers. If the environmental movement in the Indian sub-continent fails to stop this mega project, it would mean nothing short of a premature death of the movement itself and acceptance of the proposed rewriting of sub-continent’s geography with painful consequences as fait accompli.

Recalling the pearls of wisdom from Mahabharata that describes the Divine Being saying, “The mountains are his bones. The earth is his fat and flesh. The oceans are his blood. Space is his stomach. The Wind is his breath. Fire is his energy. The rivers are his arteries and veins. Agni and Soma, otherwise called the Sun and the Moon, are called his eyes. The firmament above is his head. The earth is his two feet. The cardinal and subsidiary points of the horizon are his arms,” the new government should reject the idea of “inter-linking of rivers based on feasibility”. This is narrated by Bhishma in conversation with Yudhishthira while referring to the reply of sage Bhrigu to sage Bharadwaja. This verse occurs in the Shanti Parva of Mahabharata.

Interlinking of rivers entails mutilation of the veins and arteries of the divine nature. Rivers shape the terrain and lives of people by its waters which are always in a dynamic state. Breaking this dynamic would unleash forces of uncontrolled change and invite the ‘law of unintended consequences’. Let us remember the terrible Aral Sea disaster caused by the mistakes of Soviet Union in which two Siberian rivers were diverted.  If water scarcity is the perennial question, there better answers like the groundwater recharge master plan available with the government. Water can be made to “Reach to All Homes, Farms and Factories” by adopting this plan as well at a minimal cost. 

Whenever there is conflict between financial gains and rivers, the latter must get priority over monetary benefits because by any yard stick economic value of a free flowing river is bigger than dammed and mutilated rivers.  The capitalist, communist and colonial legacy of treating rivers as material flow that flow through pipelines must be abandoned and rivers must be treated as living beings that nourished our civilization for centuries and can nourish all the coming generations if cannibalistic tendency of diverting waters in bottles, dams and banks is stopped.

With regard to pollution in rivers, if the new government can demonstrate the political will to stop all the effluents and sewage from entering into river streams through a single executive decision, he would have done an exemplary act of arresting ecological collapse and for safeguarding the quality of blood flowing in veins and arteries of the present and future generations. Notably, one of the aims of the ILR project was dilution of pollution, disregarding its implications for the clean rivers. National Water Development Agency (NWDA) is under structural compulsion to push these ecologically destructive projects envisaged in 1970s to justify their continued existence. NCAER, NWDA and their promoters remain trapped in pre-climate crisis era wherein “taming of rivers”, dams were temples and not outcome of disease of gigantism and conquest over nature was considered part of scientific temper with which rivers could be murdered with impunity. The ToRs of the Task Force of 2002 and 2015 and court orders of 2002 and 2012 reveal that proponents of ILR project are frozen in a time warp. 

 

The implementation of the Ken-Betwa river linking project in Madhya Pradesh and Uttar Pradesh because it is likely to submerge over 9,000 hectares of land, including the tiger and vulture habitat of Panna Tiger Reserve.

In view of the collective wisdom of the past and the present and responsibility towards coming generations besides concerns for non-human species there is a compelling reason to abandon ILR project for the sake of sanity and humanity.  

While a beginning can be made with these steps, it must be realised that the economic ideology that has led to the global financial crisis is the same ideology that is accountable for the ongoing ecological disorder of the lunatic ilk.

Therefore, nothing short of the death of the old industrial policies of the pre-climate crisis era and the rebirth of an enlightened policy-making that takes into account inter-generational equity with regard to natural resources would be sufficient. New government must undo the regressive legacy of past years.

Dr. Gopal Krishna

A heatwave means temperatures exceeding 40°C in low-lying terrains, or 30°C in the mountains. India's Meteorological Department has launched a Heat Index. It takes into account humidity factor as well. The Meteorological Department had forecast an unusually high number of heatwave days from April to June. There is no common global index on what constitutes a heat wave.  The heat index is derived using the heat index equation similar to what is used by National Weather Service, National Oceanic and Atmospheric Administration (NOAA), USA. The heat index provides information about the impact of humidity on the high temperatures.

The colour codes used for Experimental Heat Index are as follows:

Green: - Experimental heat Index less than 35 deg C

Yellow: - Experimental heat Index in the range 36-45 deg C

Orange: - Experimental heat Index in the range 46-55 deg C

Red: - Experimental heat Index greater than 55 deg C

The Heat Index is implemented on experimental basis only across the entire country including the State of Andhra Pradesh. The Heat index for Bhubaneshwar and Ahmedabad under Heat Action Plan is being done under project mode by National Disaster Management Authority (NDMA) in collaboration with local agencies like Indian Institute of Public Health (IIPH).

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