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The Enrica Lexie case involving the fatal shooting of two Indian fishermen by two Italian marines appears to have come to a close. This incident not only raised tough questions for maritime law, but also resulted in political and diplomatic confrontation between India and Italy. Upon Romes request in 2015, the dispute was brought before an international tribunal constituted under the 1982 UN Convention for the Law of the Sea (UNCLOS), which released its final award (or decision) on 2 July 2020.

The tribunal said that though both countries have concurrent jurisdiction over the case, India must immediately cease the exercise of its criminal jurisdiction since the marines are entitled to immunity. The award also holds that Italy interfered with Indias freedom of navigation and must pay compensation for physical harm, material damage to property and moral harm caused to the captain and crew members of the fishing vessel. New Delhi, in a recent statement, has said that it will abide by the award.

The dispute is a complex one, and raises legal questions that have seldom been raised before. The incident took place on 15 February 2012, 20.5 nautical miles (nm) off the coast of Kerala. Two marines Sergeant Latorre and Sergeant Girone aboard a commercial Italian oil tanker, MV Enrica Lexie, shot and killed two Indian nationals, Valentine Jelastine and Ajeesh Pink, on an Indian fishing vessel (St. Antony). The Italian side argues that the marines sensed that St. Antony constituted a pirate attack, thus compelling them to respond with firearms. The Indian side refutes this and says that the crew aboard St. Antony was simply exercising its sovereign fishing rights in the Arabian Sea (extending up to 200 nm from the shore). Criminal proceedings against the marines first began in India in 2012, until the international arbitral tribunal was seized of the matter in 2015.

Two contentious legal questions were raised in this case: the first is whether the marines were entitled to immunity for their acts, and the second, whether India could exercise its criminal jurisdiction, when the incident took place beyond its territorial waters.

International law confers immunity to state officials for acts performed in official capacity (known as functional immunity). Italy argued that the marines were entitled to functional immunity; they were members of the Italian navy and part of a Vessel Protection Detachment (VPD) deployed according to government directives (Law No. 130/2011) and international commitments to protect the vessel from piracy. The mechanism for VPDs was operationalised through a memorandum of understanding (MoU) between the Italian Ministry of Defence and the Italian ship-owners association. The MoU specifically defines VPD as a military unit composed of military personnel, preferentially from the Navy, embarked on trading vessels. The military personnel on VPD duty must comply with rules of engagement and guidelines issued by the Italian Ministry of Defence.

International Law Commission reports (here and here) on functional immunity identifies criteria for who are officials: that the official should have connection with the state (constitutional, statutory or contractual); the official acts internationally as a representative of the State; and that the official exercises elements of governmental authority, acting on behalf of the State. At this stage, the connection of VPD to the Italian state is fairly straightforward: they are members of the Italian Navy, were deployed according to government laws, and functioned under a framework of rules established by the Italian Ministry of Defence.

Elsewhere, it has been argued (here and here) that UNCLOS has its own provisions for sovereign immunity, which only extends it to warships, naval auxiliary and other vessels owned and operated by the state. Since there is no provision for immunity for state officials here, the same cannot and should not be given to the marines. However, nothing in the convention suggests the exclusion of customary rules of international law such as sovereign immunity for officials in matters of law of the sea. What this does indicate is that there is a need for greater clarity on the application of multiple legal frameworks to complex cases.

Another counter-argument is that Italian ship owners who placed VPDs on their vessels had to cover costs for such an attachment. This creates a clear financial link between the VPDs and ship owners, raising questions if they indeed performed government functions or commercial ones. However, it is unclear if this is sufficient to erase the sovereign nature of their duties and sever their ties from the state. Further, Italys laws also draw a distinction between VPDs and private armed security guards, where the latter who are not military personnel and operate entirely on private payroll would not be entitled to immunity.

A more difficult contention is the grant of immunity when the Indian position believes that the use of firearms against St. Antony a mere fishing vessel was disproportionate and excessive. Scholars acknowledge that actions that are careless, reckless, involved excessive force, or was contrary to instructions, do not negate the application of sovereign immunity. As a result, the tribunal award has decided that the marines are entitled to immunity. However, by acknowledging that Italy violated Indias freedom of navigation and by directing payment of compensation to New Delhi, it ascribed responsibility to Rome for the marines actions.

The second question raised in this dispute was whether India could exercise its criminal jurisdiction, given that the incident took place beyond its territorial waters (which extends to 12 nm from the shore). Exercise of criminal jurisdiction in territorial waters is mentioned explicitly in the UNCLOS (Article 27). The place where the incident took place at 20.5 nm is what the convention terms as the contiguous zone.Here, a state can only exercise necessary control for violation of customs, fiscal, immigration and sanitary laws. The convention is silent if criminal laws can be extended to the contiguous zone. For India, the 1976 Maritime Zones Act and a 1981 Home Ministry notification extends Indias criminal jurisdiction all the way up to 200 nm. When the matter was raised before the tribunal, Italy argued that Indias laws were contrary to the provisions of the UNCLOS.

Because of the ambiguity of the UNCLOS on criminal jurisdiction, a reading of the Lotus case, a seminal judgment of the Permanent Court of International Justice (the precursor to the International Court of Justice) becomes essential. Its findings can be described as follows: an offence commenced 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 gives both India and Italy concurrent jurisdiction. The UNCLOS did carve an exception to such exercise of dual jurisdiction for matters of collision or any other incident of navigation; in these specific circumstances, only the flag state (Italy, in this case) could exercise jurisdiction. Rome relied on this very provision to assert that because of this, the matter should be handed over to its courts. Analysts refuted that a fatal shooting could simply be considered as any other incident of navigation. It appears that the tribunal must have adopted this reasoning as well, and thereby relied on the Lotus case to find that both Italy and India had concurrent jurisdiction over the matter. However, given that the marines were entitled to immunity, India was directed to cease its criminal jurisdiction over the matter.

This development was deemed as a loss for India and has enraged fishermen. However, there is one positive aspect to the award. The tribunal did not adjudge the legitimacy of Indias extension of its criminal laws up to 200 nm (the exclusive economic zone), and has not disturbed our legal framework in this regard. It has in a way acknowledged the concurrent jurisdiction of both India and Italy, which indicates that if the shooting had been carried out by private personnel, India may have retained jurisdiction. Currently, only excerpts of the award have been released for advance publication and the full award is not available yet. A reading of the entire decision can perhaps support a more nuanced analysis of the legal and political questions at hand.

In practice, exercise of foreign criminal jurisdiction over state officials as India attempted to do so is successful in very few cases, and depends on the consent of the other state for it to proceed. Without such consent, attempts to exercise jurisdiction can worsen relations between states. The extensive media reporting of the case and its high profile nature resulted in posturing of both the Indian and the Italian government.

In India, Keralas political leadership and the fishing community closely followed the case, while Kerala MPs protested when the marines were allowed to return to vote in Italys general elections. At the national level, efforts to engage in diplomacy did not yield positive results. Both the Manmohan Singh government and the Modi government continued to have differences with their Italian counterparts. On two occasions Italy recalled its envoy to India, while in 2013 India restrained Italys then Ambassador Daniele Mancini from leaving the country. A 2016 visit to Rome by then External Affairs Minister Sushma Swaraj provided some course correction and reset ties between the two countries.

These developments not only affected diplomatic relations with Italy, but with the European Union as well. Indias decision to invoke a 2002 Act for this case which contained a death penalty provision was explicitly condemned by the EU. Later in 2015, the India-EU summit was called off, while Italy also blocked Indias entry to the Missile Technology Control Regime.

The fallout of this dispute has shown that apart from sound diplomatic strategy, multilateral efforts also need to be taken to interpret and clarify contentious provisions in international legal instruments. This is particularly important for largely unregulated areas, such as the placement of state officials on commercial shipping vessels. As an aftermath of this incident, in March 2015, Italy announced that it would end the employment of VPDs aboard Italian merchant vessels. For now, New Delhi must negotiate an appropriate compensation package from Italy, closely follow developments in Italian courts and ensure that justice is secured for the death of its two nationals.

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Choppy waters: On the Italian marines decision - Observer Research Foundation