d have been incidental to this case if it was linked to the subject matters of the Convention but that link doesn’t exist.
Thirdly, although UNCLOS allows room for application and interpretation on certain issues such as marine environment on a case by case basis, the Constitution for the Oceans (UNCLOS) runs out of room for any distinct interpretation on the exercise of jurisdiction by the courts or tribunals and such provisions are strict and limited in nature.
Fourthly, a conscious effort needs to be made in order to demarcate between the two concepts of applicable law and matters which otherwise plummet under its due competence.
Contrary to the above stated reasons, there are works which argue otherwise. Firstly, it is sometimes very conveniently assumed by many that an attempt/possibility of piracy existed and the act done by Italian marines for suppressing piracy was proportionate. However, the investigations of both state parties are crystal clear in affirming the fact that there is no conclusive evidence to suggest that there was any threat of piracy. Italy could not prove that there was a considerable or even a possible threat of piracy/armed robbery. Secondly, many negate the jurisdiction of Indian Courts by reason of the event happening outside the territorial waters which again seems to be ill-founded. The UNCLOS is apt to cite for cases falling under territorial waters, but is silent for cases falling under contiguous zone the reason for which reference needs to be made to the Lotus case. According to that case, “if an offence has been committed on a vessel of flag State A which has fatal consequences aboard the vessel of flag State B can be subject to the criminal law of both A and B.” This opens the gates of both India and Italy having the criminal jurisdiction. The UNCLOS as per Article 97(1) did fashion an exception to such type of dual jurisdiction that in the cases of “collision or any other incident of navigation”, the jurisdiction would fall under the flag state. Reliance of Italy on the exception 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 