SUBJECT CODE: BL 1007 B.A.LL.B. (Hons.

ABUSE OF DIPLOMATIC IMMUNITY : ITALIAN AMBASSADOR CASE

Submitted By Submitted To
Aryaveer Hooda Dr. Sanjay Kumar

R.No. 1901022 Associate Prof. of Law

Section A DBRANLU

Submitted on 3rd May, 2024.

SUBJECT CODE: BL 1007 B.A.LL.B. (Hons.)

ACKNOWLEDGEMENT

I would like to express my gratitude towards my P.I.L. professor, Dr. Sanjay Kumar for allowing
me to research on the chosen topic. While working on this project, I not only enhanced my
knowledge but also got a different perspective on the Italian Marines case and the territorial
sovereignty in the High Seas.

I am also grateful to my parents and Hon’ble Vice-Chancellor of this institution for providing me
with adequate means to complete the project.

Sincerely,

Aryaveer Hooda
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TABLE OF CONTENTS

INTRODUCTION- DIPLOMATIC IMMUNITY .......................................................................... 1

Maritime Zones of a Country .......................................................................................................... 1

i. Territorial Sea....................................................................................................................... 2

ii. Contiguous Zone .................................................................................................................. 2

iii. Exclusive Economic Zone ................................................................................................ 2

iv. High Seas.......................................................................................................................... 2

Abuse of Diplomatic Immunity ...................................................................................................... 2

Facts ................................................................................................................................................ 3

Issues Involved................................................................................................................................ 5

Arguments of Petitioner .................................................................................................................. 5

Arguments of Respondent............................................................................................................... 6

Judgement ....................................................................................................................................... 7

Ratio Decidendi .............................................................................................................................. 8

Obiter Dicta ................................................................................................................................... 10

Conclusion .....................................................................................................................................11
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INTRODUCTION- DIPLOMATIC IMMUNITY

Diplomatic immunity is one of the principles of international law which limits the degree to
which the officials and employees of foreign governments would be subject to the other
country’s authority of police officers and judges.1

The Vienna Convention on Diplomatic Relations, adopted in 1961, is an international treaty that
governs diplomatic relations between sovereign states. One of the key provisions of the Vienna
Convention is the principle of diplomatic immunity, which grants certain privileges and
immunities to diplomats and diplomatic missions to ensure the effective functioning of
diplomatic relations.2

Under the Vienna Convention, diplomats are granted immunity3 from the jurisdiction of the
receiving state’s courts for both official and private acts, except in certain limited circumstances.
This immunity extends to the diplomat’s person, residence, and property, as well as to their
official communications and documents.4 Diplomatic bags are also granted inviolability,
meaning they cannot be opened or detained by the authorities of the receiving state.

However, diplomatic immunity is not absolute. Diplomats can still be subject to the jurisdiction
of their home state’s courts and may be waived or lifted by the sending state in certain
circumstances, such as in cases of serious crimes or when the diplomat's conduct is incompatible
with their diplomatic status.

MARITIME ZONES OF A COUNTRY

All these zones are measured from the baseline of a country which is the coastline or +low-water
line recognized by the respective coastal state. These are defined under the Territorial waters,
Continental shelf, Exclusive economic zone and other Maritime zones Act, 1976.

1
Frey, L.S. and Frey, M.L. (2020) ‘Diplomatic immunity: An admittedly short survey’, Diplomatic Immunity, pp. 1–
13. doi:10.1007/978-981-15-1094-6_1.
2
Ibid.
3
Vienna Convention on Diplomatic Relations (1961), art.29.
4
Vienna Convention on Diplomatic Relations (1961), art.31.

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i. Territorial Sea
The territorial sea is a zone that measures 12 nautical miles from the baseline of a country, and
the coastal state has jurisdiction over the entire territory, including the resources found in the sea
or sea-bed. A foreign ship is allowed to travel here without committing trespass.

ii. Contiguous Zone

The contiguous zone of a country extends to 24 nautical miles from the baseline of the country.
So, it includes the 12 nautical miles of territorial sea but has an extra coverage of 12 nautical
miles after the territorial sea, before the high seas. The coastal state has the jurisdiction over the
contiguous zones regarding any laws that it has set for foreign ships in the area.

iii. Exclusive Economic Zone

This is an area of 200 nautical miles measured from the baseline, and as the name suggests, the
coastal state has exclusive rights to use and exploit all living and non-living resources present in
the sea.

Although unlike the other zones discussed above, the coastal country has no right to stop or
restrict the movement of foreign ships.5

iv. High Seas

The area beyond the EEZ (“Exclusive Economic Zone”) is referred to as the high seas. This is an
area where any country would have the right only to explore or make scientific discoveries. This
area is not under the jurisdiction of any state, and international bodies would take over, in case of
any dispute.6

ABUSE OF DIPLOMATIC IMMUNITY

Being a diplomat of Italy and head of the Italian Mission to India, Ambassador Mancini had
absolute personal immunity both for his official and personal acts while in post7 and the SC’s
order clearly violates this rule of International Law. The court in this case justified this order by
stating that the ambassador had appeared in the court as a petitioner which brings him under the
ambit of Article 32(3) of the VCDR which states that initiation of proceedings by a diplomatic

5
Crawford, J. (2019) ‘The territorial sea and other maritime zones’, Brownlie’s Principles of Public International
Law, pp. 241–266. doi:10.1093/he/9780198737445.003.0011.
6
Ibid.
7
Supra note 4.

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agent shall preclude him from immunity. The court based its reasoning on the affidavit given by
the ambassador, which, according to the court, stated that the Ambassador was ensuring the
return of the marines to India.

A deeper look into the affidavit makes it clear that the Ambassador did not undertake to return
the marines to India but simply stated that the ‘contents of the application [of the marines] were
true to the best of his knowledge.8 Further, the court relies on the ambassador filing the affidavit
in his personal capacity, which implies that he waived his immunity and submitted himself to the
jurisdiction of the court. Contrary to this, the affidavit was clearly filed in his “capacity [as the]
ambassador of Italy in India”, which was further supplemented by the stamp of the Italian
Embassy in New Delhi, India.9 The chief Justice of the SC, during oral proceedings phase told
the legal counsel of the ambassador that “…A person who has come to the court as a petitioner, I
don’t think, has any immunity.”10

It can be agreed that if a person willingly submits himself/herself to the jurisdiction of the court,
then they should not be able to claim immunity. Indeed, the ambassador did appear before the
court through legal counsel and by being present in the court, it might suggest that he was
willingly submitting to the court’s jurisdiction. In general, those entitled to diplomatic immunity
are better advised to enter an appearance under protest and to take steps to ensure that the court
or tribunal in question are aware of their diplomatic status.11 Ambassador Mancini entered into
appearance under protest and his counsel was sure to inform the court of his immunity when the
court asked the counsel if the two marines would return to India and he answered that “the
ambassador has no further instructions than the one[s] given by his government. There is
complete immunity under the Vienna Convention [on diplomatic Relations] and we can place on
record all documents.”12

FACTS
In an endeavor to combat piracy and safeguard the freedom of navigation for merchant vessels,
particularly those flying the Italian flag in international waters, the Republic of Italy promulgated

8
J. Salmon in Max Planck Encyclopaedia of Public International Law, vol. VII (Oxford University Press, Oxford,
2012), pp. 75-87 at pp. 81-82.
9
Ibid.
10
The Tribune, 18 March 2013.
11
E. Denza, 2016 at p. 278.
12
Government of India, Ministry of External Affairs, Media Briefings, March 18, 2013.

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Law of Parliament of Italy No. 130 of 2nd August, 2011. This legislation, articulated under
Article 5, mandates the deployment of Italian Military Navy Contingents Abroad Italian-flagged
vessels to mitigate the escalating threat of piracy on the high seas.

Subsequent to the enactment of said law, an Italian vessel, accompanied by a Military Protection
Detachment, was en route to Djibouti on 15th February, 2012, when it encountered an Indian
fishing vessel named St. Antony. Regrettably, the Italian vessel, under the presumption of
encountering a pirate vessel, engaged in firing approximately 20.5 nautical miles off the Indian
sea coast, resulting in the tragic demise of two individuals aboard the Indian fishing vessel.

Following this incident, the Italian vessel received communication from the Maritime Rescue
Co-ordination Centre, Mumbai, urging its return to Cochin Port to facilitate an inquiry into the
aforementioned occurrence. Upon docking in Cochin, the Master of the vessel was apprised of
the lodging of a First Information Report (F.I.R.) at Kollam, Kerala, under Sections 302 and 34
of the Indian Penal Code, pertaining to the firing incident resulting in the fatalities of the two
Indian fishermen. Consequently, the two Italian marines were apprehended on 19th February,
2012.13

In response to their detention, the marines initiated a Writ petition before the Kerala High Court,
invoking Article 226 of the Constitution, contesting the jurisdiction of the State of Kerala and the
Kollam District Police to register the F.I.R., conduct investigations, or effectuate arrests. The
Kerala High Court, after due consideration, determined that the entirety of the Indian Penal Code
had been extended to the Exclusive Economic Zone by virtue of Notification No. SO 67/E dated
27th August, 1981. Furthermore, it was held that under the provisions of the SUA Act, the State
of Kerala possessed jurisdiction extending up to 200 nautical miles from the Indian coast,
encompassing the Exclusive Economic Zone of India.

13
K.S., H. (2013) ‘Jurisdictional and immunity issues in the story of Enrica Lexie: A case of shoot & scoot turns
around!’, SSRN Electronic Journal [Preprint]. doi:10.2139/ssrn.2240738.

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Displeased by the ruling of the Kerala High Court, the petitioners subsequently lodged a Special
Leave Petition before the Supreme Court of India, seeking redress.14

ISSUES INVOLVED

1. Whether Indian Courts have territorial jurisdiction to try Petitioner Nos.2 and 3 under the
provisions of the Indian Penal Code, 1860?
2. If so, whether the Writ Petitioners are entitled to claim sovereign immunity?15

ARGUMENTS OF PETITIONER

The petitioners contended that they were not culpable for the alleged acts of murder or attempted
murder ascribed to them, asserting their status as members of the security forces who perceived
the fishing vessel as a potential piracy threat. They maintained that appropriate precautionary
measures, including sounding alarms, horns, and flashlights, were undertaken to signal the
vessel, and a security signal was dispatched to notify relevant naval authorities, including those
of India. Despite these actions, no alteration of course was made.16

Moreover, the petitioners argued that the incident occurred within the contiguous zone/Exclusive
Economic Zone, extending beyond the territorial waters of India. They relied on Section 4 of the
Indian Penal Code (IPC) to contend that India’s jurisdiction is confined to criminal matters
within its territorial boundaries and extends only to Indian citizens for offences committed
outside its territory. Consequently, as foreign citizens, they contended that their alleged offences
should not fall under the purview of Indian courts.

14
Republic Of Italy Through Ambassador And Ors V Union Of India (UOI) And Ors, Writ Petition (Civil) No. 135
Of 2012, MANU/SC/0059/2013, Decided On: 18.01.2013.
15
Ibid.
16
Republic of Italy v Union of India: CML cmi database (no date) Republic of Italy v Union of India | CML CMI
Database. Available at: https://cmlcmidatabase.org/republic-italy-v-union-india, (Accessed: 03 May 2024).

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Furthermore, invoking Article 87(1)(a) of the United Nations Convention on the Law of the Sea
(UNCLOS) 198217, the petitioners asserted the freedom of navigation, positing that it entitles
them to traverse the seas unhindered by sovereign interference. Additionally, they cited Article
97 and Article 58 of UNCLOS18 to challenge India's jurisdiction, emphasizing provisions that
preclude coastal states from instituting penal proceedings against foreign ships or their masters.
They also pointed to ongoing investigations in Italy as grounds for precluding proceedings in
India.

Lastly, the petitioners pleaded for functional immunity from the alleged offences by virtue of
their official duty on behalf of the State, invoking provisions of UNCLOS. They sought relief
from the court in the form of annulling the charges brought against them.

ARGUMENTS OF RESPONDENT

It was argued by the Respondent that the master of the ship had not cared to inform the Coast
Guard regarding the incident until the Enrica Lexie was directed by the Indian Coast Guard to
proceed to the port. This implies that they had travelled for 3 hours, covering 39 nautical miles
after the incident occurred without informing any authority about the incident. Additionally, they
also failed to report the incident to the International Maritime Bureau, which is a breach of
mandatory procedure.

Secondly, it was argued that the act of flashing a searchlight as a warning was not useful as in
broad daylight it would not have been visible at all.

It was also argued that the firing by the VPD was unnecessary and usually should be resorted to
as the last option for self-defense. They should have taken other action to ward off any dangers,
as there was a reasonable distance of 100m between the oil tanker and the fishing vessel. Also,
there was no attempt made by the people in the fishing vessel to enter the tanker, which could
lead to any imminent danger.

17
U.N.C.L.O.S., art.87(1)(a).
18
U.N.C.L.O.S., art. 97.; U.N.C.L.O.S., art.58.

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Ideally, they should have a response plan to deal with piracy and gradually increase the use of
force, which was absent in this case. The failure to follow such a standard procedure resulted in a
breach of anti-piracy measures.

It was also stated that the Kerala coast was free from piracy and fishing vessels were frequent in
that area which implies that the fishermen were killed mercilessly.

The respondents contended that Article 3219 and Article 56 of UNCLOS20 was applicable as
these laws provide for the maintenance of law and order by the coastal state (India) in the EEZ
and would thereby give India the jurisdiction to try the accused Italian marines.

It was further argued that the position of the tanker was 20.5 nautical miles from the baseline of
India which means that the incident occurred in the territorial water and not in the high seas.
Therefore, as contended by the Petitioner, Article 97 of UNCLOS21 would not apply in this given
case.

Lastly, it was argued that the petitioners would not be entitled to any immunity as they were
under the duty for the commercial activities of a private company, and the defense of sovereign
immunity applies only to those executing official duty for their country. It was prayed that their
Indian jurisdiction must apply and the writ petition must be dismissed.

JUDGEMENT

A. KERELA HIGH COURT

The Court adjudged that the Italian marines are subject to the jurisdiction of Indian
Courts and can be prosecuted under the Indian Penal Code (IPC) due to the incident
occurring within the Exclusive Economic Zone (EEZ) of India, thereby falling within
India’s purview to maintain law and order in coastal regions. Despite arguments posited
by the petitioners emphasizing freedom of navigation, the Court emphasized that such
freedom is not absolute and does not exempt individuals from accountability for

19
U.N.C.L.O.S., art.32.
20
U.N.C.L.O.S., art.56.
21
Supra note 8.

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infringements upon the rights of others, particularly in instances of fatal actions such as
the shooting of fishermen by the Italian marines. The Court affirmed India's right to
intervene in legal matters involving its nationals and inhabitants within its jurisdictional
boundaries, rejecting any notion of passive observation in the face of such
transgressions.22

Regarding the second issue, the Court ruled that the Italian marines are not entitled to
sovereign immunity. It reasoned that the marines were not engaged in official duties of
their nation, as their task was the protection of a privately-owned vessel engaged in
commercial activities, unrelated to duties assigned by the Republic of Italy. Furthermore,
the Court elucidated that the circumstances did not warrant the application of sovereign
immunity, particularly considering the gravity of the offense committed, characterized as
a brutal act of murder rather than a lawful exercise of sovereign functions in response to a
piracy threat.23

Additionally, the petitioners were directed by the Court to remit a sum of Rs 1,00,000 to
each of the respondents as a deposit.
B. SUPREME COURT OF INDIA
The Supreme Court of India firstly, set aside the Kerala High Court judgement saying
that it did not have any jurisdiction to deal with the issues of the Italian marines even
regarding the investigation of the incident. The court further directed for a special court to
be formed to conduct the proceedings of this case.

RATIO DECIDENDI
The reasons given were as follows:

• It was established by the arguments in the proceedings that the incident occurred 20.5
nautical miles from the baseline of India which is not part of the territorial waters of the

22
Thanvi, A. (2013) ‘Criminal jurisdiction in high sea: Whether India had jurisdiction under International Law to try
Italian marines’, International Journal of Public Law and Policy, 3(4), p. 409. doi:10.1504/ijplap.2013.056799.
23
Ibid.

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coast of Kerala. This implies that the Police force of Kerala and the Courts of Kerala
should not have any jurisdiction over the case.
• While the Respondents argued that since the incident occurred within the contiguous
zone of India, there could be an extension of the jurisdiction of Kerala Police and courts
by Section 188A of IPC and Code of Criminal Procedure, 1973 till the EEZ and CZ.
• This was countered by stating that the provisions in the IPC and CrPC would not give
Kerala the jurisdiction to try the offence but would give this jurisdiction to the Union of
India. 24
• Likewise, the State of Kerala did not have the right to investigation either as the same
right would be given to the Union of India itself.
• It was also stated that the two people who were accused were marines, part of the Royal
Italian Navy and hence a dispute regarding their activities is a concern for the Republic of
Italy. As it was recorded, Italy had started investigations and proceedings as well
regarding their act which could have given them a punishment of 21 years of life
imprisonment. This means that the issue is between two Nations and in such a situation,
Kerala just happens to be a unit of India and hence does not have any rightful
jurisdiction.
• It was further argued by the Respondents that Section 2 of the IPC provided that the IPC
would apply all offenders within the State of India. This would imply that since the
offence took place within the territory of India, the provisions of India would apply
instead of the provisions of UNCLOS.
• This was countered by the petitioners stating that the Indian Penal Code was enacted in
1860, which was much before the establishment of the UNCLOS Act. India had also
become a signatory of UNCLOS and so must adhere to its provisions, and all of its
actions regarding the laws of the seas must be compatible with the UNCLOS.
• It was added that before the establishment of the UNCLOS Convention, the laws for the
seas were governed by different Acts that included the Maritime Zones Act, 1976. The
laws in these Acts are also in harmony with the provision of UNCLOS.

24
Tanaka, Y. (2018) ‘Dual provisional measures prescribed by itlos and annex VII arbitral tribunal: Reflections on
the “enrica lexie” incident case’, Oxford Scholarship Online [Preprint]. doi:10.1093/oso/9780190923846.003.0012.

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• It was finally argued that by the reading of Article 97 and Article 100 of UNCLOS it
could be established that the State of Kerala did not have the jurisdiction because the
above provision of UNCLOS provided that there should be no interference by the Coastal
state in an incident which involved foreign navigation incidents such as these, even with
regard to the investigation. Only the flag country (the country whose flag was displayed
on the ship) had the right to investigate and conduct proceedings.
• Article 100 also provides for cooperation between the signatories to tackle piracy in the
area. This article would apply to the given facts and Union of India could proceed with
the investigation of the case.
• Hence, the Union of India was directed to establish a Special Court to try the case and
conduct the proceedings in accordance with the Indian provision but more importantly
the UNCLOS 1982.
• Post this judgement, India also filed charges under the Suppression of Unlawful Charges
(SUA) against the Italian marines in January 2014. Sergeant Latorre was also sent back to
Italy because of certain health reasons. The Supreme Court then asked both the parties to
sort out this issue of the SUA charges. There were deliberations regarding the same for a
long period of time and Italy was also strongly protesting against the same as this would
imply that there was an act of terrorism by Italy whereas their intention was only to
protect their ship from pirates. The Ministry of External Affairs along with the Ministry
of Law and Justice in India also stated that the SUA charges would not be applicable and
hence these charges were dropped by India against the Marines.25

OBITER DICTA

One notable obiter dictum in this case was the court’s observation regarding the importance of
diplomatic relations between India and Italy. The court remarked on the need for both countries

25
Ibid.

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to maintain strong diplomatic ties and to resolve the dispute in a manner that respects
international law while also considering the broader implications for bilateral relations.26

While this commentary did not directly impact the legal reasoning or outcome of the case, it
underscored the court's recognition of the diplomatic complexities involved and its
encouragement for diplomatic efforts to resolve the dispute outside of the legal proceedings.

CONCLUSION
In conclusion, the Enrica Lexie case exemplifies the intricate legal complexities arising from
maritime incidents involving multiple jurisdictions and international law considerations. The
Supreme Court of India's judgment underscored India's sovereignty over its territorial waters and
exclusive economic zone (EEZ), affirming its jurisdiction to prosecute the accused Italian
marines under the Indian Penal Code (IPC). This decision highlighted the significance of
adhering to international conventions such as the United Nations Convention on the Law of the
Sea (UNCLOS) while balancing national interests and diplomatic relations.

The case also brought to light the delicate balance between maritime security, freedom of
navigation, and the protection of individual rights. While the accused marines asserted their
actions as part of security measures against perceived piracy threats, the Court emphasized
accountability for transgressions resulting in loss of life, even within the context of maritime
operations.

26
Thanvi, A. (2013) ‘Criminal jurisdiction in high sea: Whether India had jurisdiction under International Law to try
Italian marines’, International Journal of Public Law and Policy, 3(4), p. 409. doi:10.1504/ijplap.2013.056799.

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BIBLIOGRAPHY

BOOKS

V.K. Ahuja, Public International Law, 2nd Ed. Lexis Nexis.

WEBSITES

www.scconline.com

thewire.in

JOURNALS

Oxford Academic Journal

Springer

JSTOR

Manupatra