There was little scope for the growth of public international law in ancient and medieval times, but Hugo Grotius’ De jure belli ac pacis has fastened the evolution of this subject of law. The realization of the exhaustible resources and state equity lead the international community to the classic principle of mare liberium or freedom of the seas. The United Nations Conference on the Law of the Sea (UNCLOS) came to be developed in the backdrop of continued struggle between coastal states wishing to expand their mighty power over marine areas adjacent to their coastlines. UNCLOS is eclectic when it comes to matters pertaining to marine environment, biodiversity, pollution, marine scientific research, navigation and jurisdiction, and for the matters not entirely included in it such as sovereign immunity is embraced by treaties, international customary law and landmark judicial precedents. The 2012 forlorn incident of MV Enrica Lexie reaps significance in 2020 as the Permanent Court of Arbitration (PCA) per its award dated 21 May 2020 has ordered the Republic of Italy to Compensate the Republic of India. The same win of India is just a façade as India has been precluded from exercising its criminal jurisdiction against the Italian marines. History is teemed with instances where political diplomacies run over real issues. Enrica Lexie is one such case mixed with pride and principles.
- It is a peaceful accord that came into power in 1982. It is otherwise called the Law of the Sea Convention or the Law of the Sea Treaty.
- It partitions marine regions into five fundamental zones in particular, Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas.
- It gives a system to state ward in oceanic spaces. It gives an alternate lawful status to various oceanic zones.
SCRUTINIZING THE AWARD
- Background of the dispute
In May 2020, a long legal battle which existed primarily because of the issue of piracy ended between Italy and India. Six Italian Marines on board of an Italian commercial oil tanker named MV Enrica Lexie were tasked to be part of a Vessel Protection Detachment (‘VDP’) in accordance with the government directives (Law No. 130/2011). On the fateful day of 15 February 2012, at around 4:30 p.m. (‘IST’), two Indian fishermen on board the Indian fishing vessel named the St. Antony, were positioned at about 20.5 nautical miles from the Indian sea coast off Kollam, Kerala, when two of the six Italian marines namely Sergeant Girone and Sergeant Latorre fired through their Italian Automatic Weapons on St. Antony mistaking the Indian fishermen to be pirates further destroying St. Antony and endangering the lives of nine other Indian fishermen on board. In 2012, the two Italian marines were detained for prosecution under India’s domestic law. Prior to the Supreme Court, the Kerala High Court had already found that the two Marines were not immune. Although the criminal proceedings were initiated per the Indian territorial jurisdiction, the case was stayed by the International Court of Arbitration on grounds of functional immunity to the Italian marines and incidental jurisdiction.
Permanent Court of Arbitration with a 3:2 majority awarded compensation to India but barred the state to exercise its criminal jurisdiction over the Italian marines by stating that they had state immunity making it unfair for the Indian victims. The Court has achieved this conclusion by banking upon unfound interpretations of UNCLOS, international customary law and judicial precedents.
The five-judge bench was on the fence over distinct issues. The first one being whether Italy has exclusive jurisdiction over the dispute to which the Court affirmed in negative. There are arguments that article 92 coupled with the nationality principle favours the issue of jurisdiction towards Italy. However Article 92 cannot be read in isolation and needs to be read harmoniously with the Lotus case (France v Turkey)  PCIJ Rep Series A No 10, which establishes concurrent jurisdiction between Italy and India.
- Sovereign Functional Immunity
The second issue was regarding sovereign ‘functional’ immunity awarded to the two Italian marines. Such immunity accorded to the two Italian fishermen by the Court is not only wrong, but is also based on untenable grounds because firstly, PCA had no authority to deliberate and decide on this matter as UNCLOS does not cover the issue of functional immunity therefore heavy reliance on UNCLOS does not help Italy’s case. Secondly, even after having no such power, PCA ruled the question of immunity in favour of Italy citing the reason of “incidental matter”. The unnecessary precedence given to the unauthorized jurisdiction over the unfortunate incident is uncanny. PCA held that it is important to delve into this issue in order to ensure that the disposal of the dispute is conclusive and satisfactory. Per the majority, the issue of immunity was incidental to the instant dispute however the same is also based on reasons which cannot be accepted. Supported by the dissenting opinion, the applicable test in such a case as laid down in many cases, would be the isolation of the real issue of the case and the bases of the claim on ground of an unprejudiced examination of the application, and the arguments placed before it. The cases in which the test is laid down are Bolivia v. Chile  ICJ Rep 507, Georgia v. Russian Federation  (I) ICJ Rep 85, Nicaragua v. Honduras  ICJ Rep 91, United States of America v. Iran  ICJ Rep 19 and Spain v. Canada  ICJ Rep 432.
In the present case, the real issue was as to which state has the jurisdiction to try the Italian marines. In order to establish its interference, Court relied on the case concerning Certain German Interests (Germany v Poland)  PCIJ Rep Series A No 6, however in that case, it was necessary for the Court to deliberate upon the rights of Poland in order to interpret its obligations under the Geneva Convention. Court did not acknowledge the huge difference of facts between the instant case and the case concerning Certain German Interests. The issue of immunity would have been incidental to this case if it was linked to the subject matters of the Convention but that link doesn’t exist.
Thirdly, although UNCLOS allows room for application and interpretation on certain issues such as marine environment on a case by case basis, the Constitution for the Oceans (UNCLOS) runs out of room for any distinct interpretation on the exercise of jurisdiction by the courts or tribunals and such provisions are strict and limited in nature.
Fourthly, a conscious effort needs to be made in order to demarcate between the two concepts of applicable law and matters which otherwise plummet under its due competence.
Contrary to the above stated reasons, there are works which argue otherwise. Firstly, it is sometimes very conveniently assumed by many that an attempt/possibility of piracy existed and the act done by Italian marines for suppressing piracy was proportionate. However, the investigations of both state parties are crystal clear in affirming the fact that there is no conclusive evidence to suggest that there was any threat of piracy. Italy could not prove that there was a considerable or even a possible threat of piracy/armed robbery. Secondly, many negate the jurisdiction of Indian Courts by reason of the event happening outside the territorial waters which again seems to be ill-founded. The UNCLOS is apt to cite for cases falling under territorial waters, but is silent for cases falling under contiguous zone the reason for which reference needs to be made to the Lotus case. According to that case, “if an offence has been committed on a vessel of flag State A which has fatal consequences aboard the vessel of flag State B can be subject to the criminal law of both A and B.” This opens the gates of both India and Italy having the criminal jurisdiction. The UNCLOS as per Article 97(1) did fashion an exception to such type of dual jurisdiction that in the cases of “collision or any other incident of navigation”, the jurisdiction would fall under the flag state. Reliance of Italy on the exception by equating a fatal unjustified shooting to “any other incident of navigation” to eliminate India’s power of jurisdiction should have been out rightly rejected. And because Italian marines were not the rightful receivers of functional immunity, the case should have fallen directly under the purview of Indian criminal jurisdiction and the issue of such immunity should have been left to the Special Court of India.
- Stature of Italian Marines
Such type of functional immunity is enjoyed only by the state officials governed by particular multilateral or bilateral treaties or agreements. It cannot crop up tangentially just to settle the vendetta of establishing jurisdiction. Therefore, not only did PCA exceed in its jurisdiction, but also couldn’t justify the incidence of the question of immunity with the case concerned.
- Commercial Status of MV Enrica Lexie
It can be said without any doubt that immunity ratione personae is accepted in limited cases and is available to selected functionaries of the state only; however, functional immunity is ratione materiae which means that it shall be limited to the type and scope of the official involved and has to be governed by some specific multilateral agreements. These special agreements are known as ‘status of forces agreements’ which are detailed enough to deploy armed forces of one country within the territory of another country. It is to be noted that there was no such agreement between Indian and Italy. Template Agreement regulates the deployment of government officials on Italian vessels providing that such embarkation and disembarkation shall be in accordance with the existing agreements between the coastal states.
Arguendo, even if Italian marines are to be considered as government officials, they were still deployed on an Italian commercial vessel and are not immune, as for the purposes of immunity, the vessel should have been a trading vessel which wasn’t the case. Those in favour of the reasons leading to this Award argue that the Italian marines were merely discharging their official duties. This reasoning falls flat as the present transaction between the Italian marines and the Italian government is a quintessential example of a commercial contract between the two parties. Therefore, the Marines were on a commercial vessel and not on a “government non-commercial purpose” ship, a perquisite to discern between commercial services from that of state’s sovereign functions.
The panacea that could have been adopted in such a dispute was to let India try the matter as per its criminal jurisdiction, considering that the event did happen in its contiguous zone and the victims were in fact Indian fishermen. The Award perorates to be a bad precedent as it unduly inclines towards Italy when clearly there is no rationale which stands in its favour. The Award invades the rights of the fishermen and their families. It is clear from the above that PCA has exceeded in its jurisdiction by referring the issue of immunity as ‘incidental’ to the case. Then again, MV Enrica Lexie was that of commercial nature which specifies that the Italian marines were certainly not on any sovereign state duty to be eligible for functional immunity. This Award will act as an excuse for states to come up with their own specific laws intentionally making the military or paramilitary officials on a commercial vessel, functionally immune and further using them for state’s adventurous purposes. Albeit Italy is bound to pay compensation to India, the pillars on which the Award stands are tenuous which makes it perverse in law.