PUBLIC INTERNATIONAL LAW

3rd CONTINOUS EVALUATION

SUBMITTED TO: SUBMITTED BY:

DR. NIKHIL ROTE ATITHI GUPTA
ASST. PROFESSOR URN: 2019-B-17081999
BALLB, SEM-7th , DIV.-B
IRAC ANALYSIS
 The Enrica Lexie case (Italy v. India)

FACTS

India and Italy have a long history of friendship. But because of the Enrica Lexie case,
relations between the two countries have become quite tight. An Arbitral Award issued by the
Permanent Court of Arbitration (hereafter PCA), which acted as a landmark decision,
recently concluded the dispute, which first arose in 2012. Due to the PCA's establishment of
the Tribunal for proceedings involving interstate arbitration between the two nations, the
Arbitral Award is enforceable, final, and binding.

This IRAC will carefully review the PCA's ruling as well as the states' respective legal
defences of the marines' immunity and the case's jurisdiction. The incident that occurred on
February 15, 2012, and the legal justifications put out by both States will also be looked at in
brief.

On February 15, 2012, the oil tanker "Enrica Lexie," flying the Italian flag, was visible in the
Indian Exclusive Economic Zone, 20.5 nautical miles off the coast of India (hereafter EEZ).
The present dispute involves two Italian Navy officers who, while on duty onboard the
fishing vessel Enrica Lexie, fatally shot two Indian fishermen aboard the "St. Antony" after
mistaking them for pirates lurking off the Kerala Coast. After reaching the Kochi harbour
three hours later, Massimiliano Latorre and Salvatore Girone, two Italian marines, were
detained and charged with murder in line with Section 302 of the Indian Penal Code, 1860.
(hereinafter IPC). The marines were detained in India for a total of four and two years,
respectively, without being formally prosecuted.

ISSUES

The Legal Conflict

1. Will Indian courts have jurisdiction against the two Italian seamen for the murder of
Indian fisherman in accordance with the Indian Penal Code?
2. Do the Italian Mariners qualify for sovereign immunity?
3. Is India likely in violation of international agreements, and if so, does India qualify
for restitution?
RULE

Position of Italy and India on Article 97(1) of UNCLOS

Following the incident, Italy claimed in a Note Verbale dated February 16, 2012 that only its
marines were permitted to reply to Italian legal authorities under Article 97 of the UNCLOS.
Italy asserts that India violated UNCLOS Articles 56(2), 92, and 97 by holding and
prosecuting the Italian Marines. Furthermore, in its request for the temporary measure, Italy
claimed that "Sergeant Girone's continuing deprivation of liberty, which is in violation of the
minimum standards of due process under international law, causes irreversible prejudice to
Italy's rights of jurisdiction over and immunity for its officials." Due to the fact that the
officer in question was acting in accordance with his "official function" when the incident
occurred, he is also entitled to protection from Indian criminal jurisdiction.

Italia's Law No. 130 of 2 August 2011—Article 5—allows for the potential deployment of
security personnel on commercial ships to deal with pirate attacks—was the foundation Italy
used to show that the act was, in fact, a legal act. Also mentioned by Italy was the ILC
Special Report on the Immunity of State Officials from Foreign Criminal Jurisdiction. And
noted that the immunity issue is to be resolved in limine litis of the proceeding, which the
Indian court failed to acknowledge, further that failing to resolve the immunity in limine litis
resulted in an irreparable loss, but this is no justification for inflicting more of it in the
ensuing years while these proceedings are ongoing. India agreed that the Enrica Lexie lacked
immunity because it was a commercial oil tanker not owned by Italy and not engaged in
official government business and considered that the question of immunity should be
addressed on its own merits. Furthermore, there is no mention of rights for marines stationed
on such a ship in UNCLOS.

CRITICAL ANALYSIS

The two primary issues in the Enrica Lexie case are intertwined and relate to the question of
the court's ability to hear the case and the immunity of the Italian government officials from
Indian criminal prosecution. The panel made its conclusions after taking into account a
number of international legal principles.
The immunity of the two marines was based on a fundamental principle of customary
international law, which grants Ratione Materiae, or functional immunity, to State officials
from foreign criminal jurisdiction with regard to the acts they commit in their official
capacity (regardless of their position in the State's power hierarchy, and also includes
members of the armed forces). According to the AT, which formed the basis for this decision,
the Marines were State employees who were acting in their official capacity throughout the
incident.

In light of this, the tribunal determined that even though the marines' actions were illegal, the
evidence demonstrated that the officials were carrying out their official duties as members of
the Italian Navy and a VPD (Vessel Protection Detachment) at the time the incident occurred
and were not on Indian soil.

As a result of failing to distinguish between the alternative possibility that the marines were
capable of carrying out an act, even while aboard the Enrica Lexie, the results of which may
be felt in Indian territory without its consent, the tribunal's conclusions are inconsistent. If the
AT is so explicit that ships cannot be merged with the national territory of the flag State, the
Enrica Lexie cannot be integrated with Italian soil, invalidating the immunity of the marines.
Even though the marines were listed as state employees, they were not qualified for state
immunity from local criminal jurisdiction because they were serving aboard a commercial
vessel.

The AT's judgement is flawed and depends on shaky ground. Two of the justices of the panel
dissented, which emphasises this. In his dissent, Dr. P.S. Rao, a member of the bench, stated
that immunity under general international law is reserved for ships used only for government
non-commercial service. "I entirely disagree with its (AT's) finding that the marines are
entitled to immunity from Indian jurisdiction, even when they were on a commercial (cargo)
vessel under private ownership," he added. Similar to what Judge Robinson stated in his
opposition, if Italy wants to grant the marines immunity, they must show that they continued
to work on the ship as government employees and not shipowners. He continues by saying
that as there is no clear agreement between the two parties granting immunity to officials of a
foreign State, the marines are not entitled to State immunity.

The marines' immunity and subsequent protection from legal punishment in India for the
killing of two innocent fishermen are at best questionable.

CONCLUSION
The Way Forward

Both nations must uphold the tribunal's decision and work together completely moving
forward on this matter as responsible global citizens. Italy benefits from the recognition.
Throughout the conflict, it has been successful in achieving its goal of having its marines
tried for their crimes in Italy rather than India. Even though it is improbable that any Italian
court will actually find the two marines guilty, they will now face additional domestic legal
action from Italy. The decision is a severe loss for India and ends any hope that the two
fishermen would receive justice.

The only thing that will satisfy Delhi is Rome's obligation to make up for the two UNCLOS
violations. India must now make sure Italy fully pays it for the suffering and lives lost in this
case. Additionally, India must ensure that Italy honours its promise to try the two marines
properly under domestic law, and the Indian government must not waver in its pursuit of
justice for its victims—even in a foreign court. Any ideas concerning trade or relations with
the European Union, which has backed Italy during the entire trial, must be ignored.

The troubled relations between Italy and India will need time to heal, but they will begin
when each nation complies with the latest judgment's requirements.