The border dispute between Italy and India, involving the death of two Indian fishermen that took place in international waters on February 15, 2012, off the coast of Kerala (South India), remains unresolved.
There are two conflicting versions of this story. According to Italian officials, throughout a training drill to combat piracy, some members of the core military protection (NMP) of the Italian Navy, on board of the Aframax tanker ‘Enrica Lexie’, and part of the marines, were forced to use measures of gradual deterrence against a fishing boat carrying five armed people who showed clear intentions of attacking.
According to the Indian version, the incident would have caused the death of Ajesh Pink and Valentine, otherwise known as Gelastine, natives of Tamil Nadu and Kerala on board of a vessel that was used in normal fishing operations.
The Italian government has reported to the UN about the human rights violations in the story involving the two Italian marines, Massimiliano Latorre and Salvatore Girone, who were detained in India. It remains unclear whether the event happened in international or territorial waters. The Italian foreign minister, Emma Bonino, has said that she has had “initiated a contact” with the High Commissioner of the United Nations, given that, two years later the situation remains unsolved.
Emma Bonino also expressed Italy’s worry for the application of the anti-terrorism law by Indian judges in the case.
The charge related to the Indian anti-terrorism law against the two Italian marines “means that Italy would be seen as a terrorist country and this is unacceptable” said Catherine Ashton, the High Commissioner for Foreign Affairs of the EU.
The story of the two marines, in addition to arousing great interest among the public opinion in both India and Italy, has provided an opportunity to examine some aspects of international maritime law that have emerged in recent years. It also resulted in the adoption of new measures to fight maritime piracy, such as the law that limits the presence of armed personnel on board of the ships.
The agreement of the IMO (International Maritime Organization) for the use of armed guards on ships engaged in the fight against piracy, provided an opportunity for the states that did not have a similar law yet, to assess the possibility on introducing a special rule designed to regulate its presence. An example is given by the Italian law n. 130 of 2 August 2011.
Thanks to this law, it was possible for the riflemen of the Italian navy to embark on board of the Enrica Lexie, as they would enjoy of the “functional immunity” according to which the jurisdiction belongs to the State of one who has committed the offense (Italy) and not the State in which it took place (India). In the case of the marines, even if the offense had occurred in Indian territorial waters, jurisdiction would belong to Italy and not to India.
The case of Enrica Lexie has revealed some critical points in the rules of international law of the sea. The two marines are two agents of the Italian State, who acted in the exercise of their functions. Consequently, their actions, according to a principle of international law, cannot be imputed to them personally, but rather to the Italian State as a whole. Otherwise, any soldier who killed someone in battle could be accused of murder, even if they acted under orders of the State.
The Montego Bay Convention, the first major effort to give unity to the international maritime law, provides for the establishment of an arbitral tribunal to resolve disputes that arise on the interpretation of the Treaty ratified by Italy and India. This is the solution advocated, even by the UN, which would be the guarantor of the protection of national sovereignty. Respect for international law for should be the royal road to the solution of the current crisis between the two countries. India and Italy did sign and ratify the international treaty in the field of maritime law in Montego Bay on December 10, 1982 and as the Latin proverb goes, pacta sunt servanda.