The Enrica Lexie Incident (Italy v. India)

Case Name and citation: The Enrica Lexie Incident (Italy v. India) Permanent Court of Arbitration (PCA), Case No. 2015-28, Award dated 21 May 2020.

Facts:

• On 15 February 2012, the Indian fishing vessel “St. Antony” was engaged in fishing approximately 20.5 nautical miles off the coast of Kerala, India, within the Indian Contiguous Zone and Exclusive Economic Zone (EEZ).

• At the same time, the Italian-flagged oil tanker “Enrica Lexie” was passing through the area en route from Singapore to Djibouti.

• The “Enrica Lexie” had on board an Italian Vessel Protection Detachment (VPD), consisting of two Italian marines, Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, tasked with anti-piracy security amidst heightened maritime piracy risks in the region.

• The marines on the Enrica Lexie perceived the fishing vessel St. Antony as a potential pirate threat because the fishing boat was approaching or on a collision course with the tanker.

• Despite warning alarms issued by the marines for the fishing vessel to alter course, the St. Antony did not comply, leading the marines to open fire, reportedly as warning shots.

• The gunfire tragically resulted in the deaths of two Indian fishermen on board the St. Antony, Valentine Jelastine and Ajeesh Pink and caused damage to the fishing vessel, putting other fishermen’s lives at risk.

• The Enrica Lexie continued to sail approximately 38 nautical miles away before communicating with the Maritime Rescue Coordination Centre (MRCC) and was subsequently intercepted by the Indian Coast Guard.

• The Italian marines were detained and charged with murder under Indian law (Indian Penal Code, Sections 300 and 425) by the Kerala Police, and legal proceedings began in India.

• Italy contested the jurisdiction of India over the marines, claiming immunity on the basis that the marines were Italian state officials performing official duties on an Italian-flagged vessel on the high seas.

• This jurisdictional dispute led Italy to initiate arbitration proceedings under the United Nations Convention on the Law of the Sea (UNCLOS) at the Permanent Court of Arbitration (PCA) in 2015.

• The arbitration focused on issues of jurisdiction, applicable law, and immunity of the Italian marines, resulting in a landmark ruling in 2020.

Issues:

1. Does the Tribunal have jurisdiction over the dispute, including over the immunity of the Italian Marines and India’s counter-claims?
2. Are the Italian Marines entitled to immunity from Indian jurisdiction for their acts during the incident?
3. Did India violate UNCLOS provisions (e.g., Articles 87, 92, 97, 100, 300) by exercising jurisdiction over the “Enrica Lexie” and the Marines?
4. Did Italy violate India’s rights under UNCLOS (e.g., Articles 56, 58, 87, 88, 90) through the actions of the Marines and the interference with the “St. Antony”?
5. What remedies, including compensation, are appropriate for any breaches found?

Rules and Reference(S):

• The United Nations Convention on the Law of the Sea (UNCLOS), adopted in 1982, provides the legal framework governing maritime zones and jurisdiction over activities at sea.

• Article 2(3) establishes that coastal states have sovereignty over their territorial sea, generally up to 12 nautical miles from the baseline, meaning they have full control and laws apply there.

• Article 56 grants coastal states sovereign rights and jurisdiction for the purpose of exploration and exploitation of natural resources in their Exclusive Economic Zone (EEZ), which extends up to 200 nautical miles from the coast, but these rights do not include full sovereignty like in territorial seas.

• Article 58 clarifies that other states retain freedoms such as navigation and overflight in the EEZ, so ships of all states have rights as long as they respect coastal state regulations.

• Article 87 places importance on the freedom of the high seas, allowing all states to navigate and operate freely beyond national jurisdiction.

• Article 88 states that the high seas must be used for peaceful purposes, forbidding aggressive or hostile acts.

• Article 90 confirms that ships on the high seas enjoy the right of navigation, moving freely under their flag state’s jurisdiction.

• Article 92 establishes that a ship on the high seas is subject exclusively to the jurisdiction of its flag state, meaning the state whose flag the ship flies has authority over the ship and its personnel.

• Article 97 provides specific rules about penal jurisdiction over incidents occurring on board ships that affect navigation or safety on the high seas.

• Article 100 imposes a duty on states to cooperate in the repression of piracy, which was relevant to the Italian marines’ deployment on the tanker as anti-piracy security personnel.

• Article 300 requires all parties to act in good faith and avoid abusing rights or acting in a way to cause harm to other states through their exercise of jurisdiction.

• India’s Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, along with a 1981 notification, extends Indian penal jurisdiction to offenses occurring in the EEZ, though the Tribunal in the case refrained from assessing the compatibility of this extension with UNCLOS norms.

• Customary international law also governs immunity for state officials and military personnel, recognizing their protection from foreign criminal jurisdiction when acting in official capacities, a principle Italy invoked for the immunity of its marines.

• Annex VII to UNCLOS sets out arbitration procedures for resolving disputes between states, which provided the legal basis for this arbitration at the Permanent Court of Arbitration (PCA).

Analysis:

The Tribunal’s legal reasoning centered on interpreting UNCLOS in light of the incident occurring within India’s Exclusive Economic Zone (EEZ), where it balanced the rights of the coastal state with the principle that the flag state holds exclusive jurisdiction over its vessels on the high seas. The Tribunal decided by a 4-1 majority that it had jurisdiction to determine which state could exercise penal jurisdiction over the killings. Regarding immunity, the majority (3-2) ruled that the Italian marines, acting as state officials on official duty aboard their flag vessel, were entitled to immunity under customary international law, which UNCLOS implicitly incorporates. This immunity barred India from exercising jurisdiction over the marines despite the location of the incident within India’s EEZ, as the marines were acting in their official capacity to counter what they perceived as piracy. The Tribunal rejected India’s contention that immunity did not apply to state officials on non-commercial vessels or within the EEZ, underscoring that UNCLOS Articles 95 and 96 extend immunity to military personnel aboard merchant ships. This reasoning clarified the interaction between coastal state jurisdiction, flag state jurisdiction, and immunity in maritime law.

Regarding alleged violations, the Tribunal unanimously found Article 97 inapplicable, as the incident was not a “collision or any other incident of navigation” but an intentional shooting. It held that India did not breach Articles 87(1)(a), 92(1), or 100 by exercising jurisdiction, nor abuse rights under Article 300. However, the majority (3-2) found Italy did not violate India’s sovereign rights under Articles 56 or 58(3), as the actions were not an exercise of freedom of navigation infringing on EEZ resources. Unanimously, Italy breached Articles 87(1)(a) and 90 by interfering with the “St. Antony’s” freedom of navigation through the shooting. The Tribunal noted no breach of Article 88, as the use of force was limited and not warlike.

Ratio decidendi of the Enrica Lexie case is that military personnel such as Italian marines, when performing their official duties aboard a merchant vessel as part of an anti-piracy mission, are entitled to functional immunity from foreign criminal jurisdiction even if the incident occurs within another state’s Exclusive Economic Zone (EEZ). This immunity is grounded in customary international law, which UNCLOS implicitly integrates. However, this does not absolve the flag state from responsibility, the flag state remains accountable for any violations of high seas freedoms caused by such acts. Thus, the Tribunal established a crucial legal balance between protecting officials immunity and ensuring state accountability for breaches of international maritime law.

Dissenting judgments, Judges Patrick L. Robinson and Dr. Pemmaraju Sreenivasa Rao issued a joint dissenting opinion arguing the Tribunal lacked jurisdiction over immunity because immunity is a matter of general international law, not covered by UNCLOS, and therefore outside the Tribunal’s authority. They asserted that the Italian marines’ actions exceeded lawful self defense and violated India’s sovereign rights within its Exclusive Economic Zone (EEZ) under Articles 56 and 58(3) of UNCLOS by unlawfully using force.

Judge Robinson, in his separate dissent, emphasized that UNCLOS does not incorporate immunity for such incidents, and that the shooting represented excessive force which infringed upon peaceful uses of the sea. Dr. Rao, while concurring with some of the Tribunal’s findings on concurrent jurisdiction, dissented on jurisdiction over immunity and on merits, maintaining that coastal state rights in the EEZ prevail over flag state immunity claims, and that Italy’s acts amounted to an unlawful use of force in India’s EEZ.

These dissenting views stress the primacy of coastal state jurisdiction and challenge the extension of immunity for military officials whose conduct allegedly violates another state’s rights in its maritime zones, highlighting ongoing debates about jurisdiction and immunity under international maritime law.

Conclusion:

The Tribunal ruled that India must stop exercising criminal jurisdiction over the Italian marines, who are entitled to immunity from prosecution in this case, with the decision passed by a narrow 3-2 majority. It also directed that Italy must continue its own criminal investigation into the incident. At the same time, the Tribunal found unanimously that Italy violated Articles 87(1)(a) and 90 of UNCLOS by interfering with the freedom of navigation of the Indian fishing vessel, St. Antony. As a result, India is entitled to compensation for the loss of life, physical harm, property damage, and moral suffering experienced by the crew of the St. Antony. The Tribunal encouraged both countries to negotiate and agree on the compensation amount, while reserving jurisdiction for one year to assist if needed. Most other claims made by both parties were dismissed, and no additional remedies were ordered.

Bibliography:

1.  The ‘Enrica Lexie’ Incident (Italy v India), Award, PCA Case No 2015-28 (21 May 2020) https://pca-cpa.org/en/cases/117/> accessed 25 September 2025.
2. The ‘Enrica Lexie’ Incident (Italy v India), Concurring and Dissenting Opinion of Dr Pemmaraju Sreenivasa Rao, PCA Case No 2015-28 (21 May 2020) https://pca-cpa.org/en/cases/117/> accessed 28 September 2025.
3. The ‘Enrica Lexie’ Incident (Italy v India), Dissenting Opinion of Judge Patrick Robinson, PCA Case No 2015-28 (21 May 2020) https://pca-cpa.org/en/cases/117/> accessed 28 September 2025.
4. The ‘Enrica Lexie’ Incident (Italy v India), Joint Dissenting Opinion of Dr Pemmaraju Sreenivasa Rao and Judge Patrick Robinson, PCA Case No 2015-28 (21 May 2020).
5. The ‘Enrica Lexie’ Incident (Italy v India), Order on Request for the Prescription of Provisional Measures, PCA Case No 2015-28 (29 April 2016). 
6. India, The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 
7. United Nations Convention on the Law of the Sea (opened for signature 10 December 1982) 1833 UNTS 397 (entered into force 16 November 1994)