There was little scope for the growth of public international law in ancient and medieval times, but Hugo Grotius’ De jure belli ac pacis has fastened the evolution of this subject of law. The realization of the exhaustible resources and state equity lead the international community to the classic principle of mare liberium or freedom of the seas. The United Nations Conference on the Law of the Sea (UNCLOS) came to be developed in the backdrop of continued struggle between coastal states wishing to expand their mighty power over marine areas adjacent to their coastlines. UNCLOS is eclectic when it comes to matters pertaining to marine environment, biodiversity, pollution, marine scientific research, navigation and jurisdiction, and for the matters not entirely included in it such as sovereign immunity is embraced by treaties, international customary law and landmark judicial precedents. The 2012 forlorn incident of MV Enrica Lexie reaps significance in 2020 as the Permanent Court of Arbitration (PCA) per its award dated 21 May 2020 has ordered the Republic of Italy to Compensate the Republic of India. The same win of India is just a façade as India has been precluded from exercising its criminal jurisdiction against the Italian marines. History is teemed with instances where political diplomacies run over real issues. Enrica Lexie is one such case mixed with pride and principles.
- It is a peaceful accord that came into power in 1982. It is otherwise called the Law of the Sea Convention or the Law of the Sea Treaty.
- It partitions marine regions into five fundamental zones in particular, Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas.
- It gives a system to state ward in oceanic spaces. It gives an alternate lawful status to various oceanic zones.
SCRUTINIZING THE AWARD
- Background of the dispute
In May 2020, a long legal battle which existed primarily because of the issue of piracy ended between Italy and India. Six Italian Marines on board of an Italian commercial oil tanker named MV Enrica Lexie were tasked to be part of a Vessel Protection Detachment (‘VDP’) in accordance with the government directives (Law No. 130/2011). On the fateful day of 15 February 2012, at around 4:30 p.m. (‘IST’), two Indian fishermen on board the Indian fishing vessel named the St. Antony, were positioned at about 20.5 nautical miles from the Indian sea coast off Kollam, Kerala, when two of the six Italian marines namely Sergeant Girone and Sergeant Latorre fired through their Italian Automatic Weapons on St. Antony mistaking the Indian fishermen to be pirates further destroying St. Antony and endangering the lives of nine other Indian fishermen on board. In 2012, the two Italian marines were detained for prosecution under India’s domestic law. Prior to the Supreme Court, the Kerala High Court had already found that the two Marines were not immune. Although the criminal proceedings were initiated per the Indian territorial jurisdiction, the case was stayed by the International Court of Arbitration on grounds of functional immunity to the Italian marines and incidental jurisdiction.
Permanent Court of Arbitration with a 3:2 majority awarded compensation to India but barred the state to exercise its criminal jurisdiction over the Italian marines by stating that they had state immunity making it unfair for the Indian victims. The Court has achieved this conclusion by banking upon unfound interpretations of UNCLOS, international customary law and judicial precedents.
The five-judge bench was on the fence over distinct issues. The first one being whether Italy has exclusive jurisdiction over the dispute to which the Court affirmed in negative. There are arguments that article 92 coupled with the nationality principle favours the issue of jurisdiction towards Italy. However Article 92 cannot be read in isolation and needs to be read harmoniously with the Lotus case (France v Turkey)  PCIJ Rep Series A No 10, which establishes concurrent jurisdiction between Italy and India.
- Sovereign Functio