nal 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 would 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 exce