The 2012 Enrica Lexie controversy, which led to a brief diplomatic stand-off between Italy and India, resurfaced after the conclusion of the dispute before the International Tribunal for the Law of the Sea (ITLOS). The legal battle was instigated by the death of two Indian fishermen on board a fishing vessel, MV St. Antony. The deceased were shot at by two Italian marines who claimed to be protecting the Italian commercial ship, MV Enrica Lexie, against what they believed to be an attack by pirates. Following this, discourse on the impact of the incident on international relations and international law surged. As India pursued charges against the marines in its domestic courts, Italy approached the ITLOS, thereafter halting any domestic prosecution of the Italian nationals. While a few Indian commentators have celebrated the judgment for its acknowledgement of Italy’s violation of India’s rights, the relief granted to India is entirely superficial. Moreover, the decision sets a questionable and dangerous precedent for expansionism and provocation, which can consequently prove to be severely detrimental to the sovereign rights of several countries.
In essence, the tribunal recognised that the actions of the Italian marines amounted to a violation of India’s rights of navigation and economic exploration in its Exclusive Economic Zone (EEZ). Consequently, India was awarded monetary compensation by the tribunal, which is to be quantified following diplomatic negotiations between India and Italy. Further, most of Italy’s claims against India, alleging violations of the United Nations Convention on the Law of the Sea (UNCLOS), were rejected by the tribunal. Yet, there is little reason for India to celebrate the award.
The ITLOS essentially negated all the reliefs granted to India by denying it jurisdiction to try the marines. To justify this, the tribunal held that the marines enjoyed “functional immunity”—the immunity afforded to state representatives acting in their official capacities. Consequently, India had to abandon all the pending criminal cases against the marines in its domestic courts, as the verdict of the ITLOS is considered to be final and unappealable. The judgement has been criticised by Indian experts for denying jurisdiction to India to impose criminal and civil liabilities on the Italian marines. However, the concerns with the verdict run deeper than just that. The ITLOS award not only sets a bad precedent by modifying the understanding of immunity and allowing considerable room for misuse, but it is also in stark violation of the existing international legal framework on the issue.
Primarily, by providing the marines with blanket immunity for their unprovoked actions, the ITLOS has opened up a can of worms by prospectively validating such incursions by other members of the military or paramilitary in the future. This protection, which was granted to the accused in the case, has not been previously established by any convention in international law. Further, the ITLOS held that in light of the immunity enjoyed by the Italian marines, India’s claims that their actions were excessive and unnecessary were rendered irrelevant. Consequently, this allows countries to use this ruling as a precedent, and lead to two dangerous outcomes.
Firstly, domestic governments can now enact laws establishing the unhindered immunity of their marines and other members of their military or paramilitary, who are deployed on commercial vessels, like the Enrica Lexie. This, therefore, modifies the existing understanding of immunity that explicitly excludes acts of state officials done in pursuance of commercial activities. Secondly, such marines can now justify their aggressive responses in other country’s EEZs in the name of piracy, and avoid being tried by foreign courts. This can potentially endanger the sovereign rights of countries within their own EEZs, such as the right of navigation and economic exploration and exploitation of resources within their region, which the UNCLOS itself guarantees.
Moreover, the ITLOS did not have the jurisdiction to adjudicate on the issue of the immunity of the marines, to begin with. The UNCLOS, which is the parent document that establishes and determines the scope of powers of the ITLOS, only refers to the immunity enjoyed by “warships” and “ships used only on non-commercial service” at “high seas.” The incident, which occurred 20.5 nautical miles from the Indian coastline, did not transpire at high seas but at India’s EEZ, which extends to 200 nautical miles. Since the UNCLOS does not establish any such immunity enjoyed by marines on commercial vessels, the issue is beyond the scope of the ITLOS. Hence, specific bilateral or multilateral treaties should determine the protection of such marines instead. However, Italy deployed its marines to the Enrica Lexie vessel without any treaty with India. As there was no such agreement in place between India and Italy to determine the method of settlement, the only international body that has jurisdiction over the matter in the International Court of Justice (ICJ), and not the ITLOS.
The tribunal’s decision of granting Italy “concurrent jurisdiction” over the issue, in a hypothetical situation where the marines did not enjoy the granted immunity, also contravened existing international law on the subject. While the UNCLOS clearly established that India enjoys sovereign rights for “economic exploration” in its EEZ, it does not address the issue of the applicability of criminal law in the region. In fact, this matter is already hotly debated in international circles. In such a situation, domestic laws must guide the decision of the courts. A 1981 notification by the Ministry of Home Affairs, read with the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, extends India’s criminal jurisdiction to its EEZs, too. In fact, the ITLOS itself dismissed Italy’s claim that the two laws were in contravention of the UNCLOS, hence indirectly upholding the validity of the legislation. Therefore, considering the inapplicability of immunity that was eventually conferred upon the Italian marines, it is clear that Indian rules apply. Consequently, while the ICJ has the jurisdiction over the issue of the immunity of the marines, in the absence of such immunity, Indian courts have the sole jurisdiction over the issue.
The impact of the judgement may not be as detrimental to India’s interests as it appears. Italy has assured India that it will continue to pursue criminal charges against the marines that were onboard the Enrica Lexie, and will do so “in a spirit of cooperation with India”. In fact, India is insisting on mandating the presence of a representative throughout the legal battle. However, as the decision of the ITLOS sets a precedent for other disputes and customary law, its impact cannot be looked at in isolation. It is essential to acknowledge the fact that other countries may not be as cooperative in pursuing charges against members of its military and paramilitary. While the tribunal’s decision may not cause a rift between Italy and India, both of whom are keen on deterring a diplomatic stand-off, the same may not be as easy to achieve in other disputes. With China’s growing aggression in the East China Sea and the South China Sea and the increasing naval coordination between members of the “quad”, this judgement could have dangerous ramifications, as marines now enjoy immunity even on commercial vessels pursuing commercial activities. Hence, the decision of the tribunal could lead to greater international unrest in already choppy waters.
Image Source: RT News
India is Not the Sole Loser in the Enrica Lexie Case. Here’s Why.
The case pertains to the death of two Indian fishermen at the hands of Italian marines.
July 21, 2020
