ption 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.