ercial 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 Functional Immunity
The second issue was regarding sovereign ‘functional’ immunity awarded to the two Italian marines. Such immunity accorded to the two Italian fishermen by the Court is not only wrong, but is also based on untenable grounds because firstly, PCA had no authority to deliberate and decide on this matter as UNCLOS does not cover the issue of functional immunity therefore heavy reliance on UNCLOS does not help Italy’s case. Secondly, even after having no such power, PCA ruled the question of immunity in favour of Italy citing the reason of “incidental matter”. The unnecessary precedence given to the unauthorized jurisdiction over the unfortunate incident is uncanny. PCA held that it is important to delve into this issue in order to ensure that the disposal of the dispute is conclusive and satisfactory. Per the majority, the issue of immunity was incidental to the instant dispute however the same is also based on reasons which cannot be accepted. Supported by the dissenting opinion, the applicable test in such a case as laid down in many cases, would be the isolation of the real issue of the case and the bases of the claim on ground of an unprejudiced examination of the application, and the arguments placed before it. The cases in which the test is laid down are Bolivia v. Chile  ICJ Rep 507, Georgia v. Russian Federation  (I) ICJ Rep 85, Nicaragua v. Honduras  ICJ Rep 91, United States of America v. Iran  ICJ Rep 19 and Spain v. Canada  ICJ Rep 432.
In the present case, the real issue was as to which state has the jurisdiction to try the Italian marines. In order to establish its interference, Court relied on the case concerning Certain German Interests (Germany v Poland)  PCIJ Rep Series A No 6, however in that case, it was necessary for the Court to deliberate upon the rights of Poland in order to interpret its obligations under the Geneva Convention. Court did not acknowledge the huge difference of facts between the instant case and the case concerning Certain German Interests. The issue of immunity woul