Published on: August 20, 2026
Authored By: Devesh Kumar
Amity Law School, Amity Univeristy
I. Introduction
The law of the sea has long balanced two competing instincts: the flag state’s claim to exclusive control over its vessels, and the coastal state’s interest in policing waters where its own nationals live, work, and occasionally die. Nowhere has this tension surfaced more starkly in Indian jurisprudence than in the Enrica Lexie incident, in which two Italian marines serving aboard an Italian-flagged oil tanker shot and killed two Indian fishermen in what both sides ultimately agreed was a tragic case of mistaken identity.[1] The eight-year arbitration that followed produced, in May 2020, an award from a tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) that many in India read as a diplomatic setback and many in Italy read as vindication.[2]
This article argues that both readings miss the more important point. The Enrica Lexie award is less a story about who “won” than about a structural gap that the tribunal exposed but declined to close: India’s Maritime Zones Act, 1976, and the executive notification built upon it, were never designed to answer whether India can exercise plenary jurisdiction over an armed foreign naval detachment embedded on a private merchant vessel transiting its exclusive economic zone. The tribunal sidestepped this question entirely, leaving Parliament with an unaddressed drafting problem years after the award and over a decade after the shooting itself. This article traces the tribunal’s reasoning on jurisdiction and immunity, situates it within the broader and unsettled scholarly debate over the scope of Article 92(1) of UNCLOS, and argues that India’s continued reliance on a decades-old statutory architecture for maritime criminal enforcement leaves it structurally unprepared for the next Enrica Lexie.
II. The Incident and the Long Road to The Hague
On 15 February 2012, the Enrica Lexie, an Italian-flagged oil tanker carrying a six-member Vessel Protection Detachment of Italian Navy marines, was transiting India’s contiguous zone roughly 20.5 nautical miles off the coast of Kerala.[3] Believing the approaching fishing vessel St. Antony to be a pirate skiff, the marines fired warning shots; the boat’s captain and crew, exhausted after a night of fishing, had not registered the Enrica Lexie‘s earlier signals.[4] Two of the fishermen died. The Indian Coast Guard intercepted the tanker roughly 59 nautical miles further on and directed it to Kochi, where the marines were arrested and charged with murder under Section 302 of the Indian Penal Code.[5]
What followed was less a criminal trial than a slow-moving jurisdictional standoff. Italy invoked UNCLOS’s compulsory dispute settlement machinery in 2015, and the International Tribunal for the Law of the Sea ordered both states to suspend domestic proceedings pending arbitration.[6] A second provisional order in 2016 required India to release Sergeant Girone, the more seriously ill of the two marines, though jurisdiction over him remained contested.[7] The Annex VII tribunal did not deliver its award until 21 May 2020, and even then the operative findings were published in stages, with the full redacted award appearing only that August.[8]
The delay was not incidental. The case required the tribunal to work through, more or less from scratch, questions that international law had left conspicuously undertheorized: what happens when a private commercial vessel carries an embedded military detachment, and a shooting by that detachment implicates the coastal state’s own nationals within its exclusive economic zone rather than on the high seas proper?
III. The UNCLOS Architecture of Jurisdiction at Sea
Three distinct kinds of state power are conventionally distinguished in international law: prescriptive jurisdiction, the power to legislate; adjudicative jurisdiction, the power to try; and enforcement jurisdiction, the power to physically compel compliance.[9] UNCLOS overlays this trichotomy onto a set of maritime zones, each carrying a different default allocation of authority between the coastal state and the flag state.
Article 92(1) establishes that a ship is subject to the exclusive jurisdiction of its flag state on the high seas, subject to exceptions provided elsewhere in the Convention or in other treaties.[10] Article 58(2) extends most of the high seas regime, including Article 92, to the exclusive economic zone, which is where the Enrica Lexie incident occurred once the contiguous zone is properly characterised for these purposes.[11] Article 97(1), meanwhile, carves out a specific rule for a collision or any other incident of navigation, reserving penal jurisdiction over a ship’s officers exclusively to the flag state or the state of the accused’s nationality — a rule enacted precisely to overturn the holding of the Permanent Court of International Justice in the S.S. Lotus case, where a French officer was held triable in Turkey following a high seas collision.[12]
The difficulty, as decades of scholarship have shown, is that Article 92(1) does not itself specify which of the three species of jurisdiction it excludes.[13] The dominant commentary reads the provision as barring only enforcement jurisdiction by non-flag states, leaving prescriptive and adjudicative jurisdiction potentially concurrent. A more expansive reading — one that the ITLOS adopted in the M/V “Norstar” case and that the Enrica Lexie tribunal itself later endorsed — treats Article 92(1) as excluding all three categories, such that a non-flag state may not even legislate over conduct occurring aboard a foreign vessel on the high seas.[14] This disagreement is not academic hair-splitting. It determines whether India’s own Maritime Zones Act, insofar as it purports to extend Indian penal law into the exclusive economic zone, is even a lawful exercise of prescriptive jurisdiction in the first place.
IV. What the Tribunal Actually Decided
The Enrica Lexie tribunal’s dispositif is best read as three separate rulings bundled into one document.
1. Concurrent jurisdiction over the incident. On jurisdiction over the incident itself, the tribunal held that India and Italy possessed concurrent adjudicative jurisdiction — India as flag state of the St. Antony, exercising jurisdiction over an offence completed aboard its own vessel, and Italy as flag state of the Enrica Lexie, exercising jurisdiction over an offence commenced aboard its own vessel. This was, in substance, a modern restatement of the Lotus principle of concurrent territorial jurisdiction based on where an offence’s constituent elements occur, and the tribunal expressly invoked Lotus in reaching it. The tribunal further found that Article 97(1)’s carve-out for incidents of navigation did not apply, since the shooting was not itself a collision or a navigational mishap, so India’s ordinary criminal jurisdiction over the incident survived scrutiny.[15]
2. India’s counterclaim. On India’s counterclaim, the tribunal found that Italy had breached UNCLOS by interfering, through the marines’ gunfire, with the St. Antony‘s freedom of navigation — a rare instance of a coastal state successfully turning the freedom-of-navigation doctrine against a flag state rather than the reverse.[16]
3. Functional immunity. Third, and decisively, the tribunal found that the two marines were entitled to functional immunity as state officials acting in an official capacity, and that India was obliged to cease exercising criminal jurisdiction over them, with no further remedy owed to India beyond the compensation already ordered.[17] It was this third finding, not the jurisdictional analysis, that actually closed the case in Italy’s favour. India had, in a strict doctrinal sense, jurisdiction all along; what it lacked was the ability to exercise that jurisdiction against officials cloaked in sovereign immunity.
This sequencing matters for the argument this article makes. Commentary on the award has overwhelmingly focused on the immunity ruling, since that is what determined the outcome.[18] But the jurisdictional reasoning that preceded it — precisely because it did not determine the result — is where the tribunal took its most doctrinally adventurous and least examined positions, and it is here that the tribunal’s silence on India’s own legislation becomes most consequential.
V. The Trouble With Article 92: An Obiter That Will Not Die
Italy’s opening claim in the arbitration was that India’s Maritime Zones Act, 1976, and an accompanying 1981 notification extending Indian criminal law into the exclusive economic zone, themselves violated UNCLOS by purporting to exercise prescriptive jurisdiction over the high seas regime in a manner inconsistent with Article 92(1). The tribunal’s response was strikingly abrupt: it found no need to rule on the compatibility of India’s 1976 Act and 1981 notification with the Convention at all.[19]
Having sidestepped that question, the tribunal nonetheless went on, in a separate part of the award addressing India’s enforcement conduct in interdicting and escorting the Enrica Lexie to Kochi, to adopt the ITLOS’s broader reading of Article 92(1) from the “Norstar” case — the reading under which the provision bars not merely enforcement but also prescriptive jurisdiction by non-flag states.[20] As one detailed comparative study of both awards has observed, this holding was not necessary to any of the tribunal’s actual findings and is properly characterised as obiter dictum: India’s conduct in escorting the tanker was analysed, and excused, as an exercise of enforcement jurisdiction, so the tribunal never needed to reach the broader question of whether non-flag states may legislate at all over high seas or EEZ conduct.[21]
The result is an award that speaks with two voices on the central legal question a case like this should settle. In one part of the award, the tribunal implies that a statute like India’s Maritime Zones Act might be incompatible with Article 92(1) if ever properly tested, since Article 92(1) on this reading bars non-flag-state legislation outright. In another, the tribunal finds that India’s own exercise of adjudicative jurisdiction over the incident was fully compatible with, and indeed justified by, Article 92(1) read as a matter of concurrent flag-state jurisdiction.[22] Both propositions cannot comfortably coexist unless one treats the Lotus-based concurrent jurisdiction principle as an unstated carve-out from the broader Article 92(1) prohibition — a reconciliation the tribunal never spelled out.[23]
For India, the practical consequence is that no arbitral body has ever actually tested whether the Maritime Zones Act’s extension of penal jurisdiction into the exclusive economic zone survives UNCLOS scrutiny. The Enrica Lexie award, celebrated in the Indian press as a partial victory,[24] in fact leaves India’s core statutory basis for policing its own exclusive economic zone in exactly the same untested condition it occupied before the marines ever opened fire.
VI. Immunity, Not Jurisdiction: The Vessel Protection Detachment Problem
A second, related gap concerns the status of embedded military personnel aboard commercial vessels. The Enrica Lexie‘s marines were not private security contractors but a state-organised Vessel Protection Detachment, deployed by the Italian Navy specifically to counter Somali piracy along a well-known high-risk corridor.[25] This distinction turned out to be dispositive, since it was precisely their character as state officials, rather than employees of a private maritime security firm, that grounded their claim to functional immunity before the tribunal.[26]
India’s domestic statute most obviously suited to prosecuting attacks aboard vessels, the Suppression of Unlawful Acts against Safety of Maritime Navigation Act, 2002, itself borrows from a treaty that expressly excludes ships operated by a state when being used as a naval auxiliary from its scope.[27] Commentators noted early in the dispute that this exclusion, ordinarily aimed at genuine warships, threatened to sweep in merchant vessels merely because they carried an embarked naval detachment, turning what looks, to any observer, like an ordinary oil tanker into something closer to a quasi-state vessel for jurisdictional purposes.[28] Neither the SUA Act nor the Maritime Zones Act was drafted with this scenario in mind, because the practice of embedding naval personnel on commercial shipping to deter piracy is a relatively recent innovation, dating largely to the surge in Somali piracy after 2008.
The consequence is a doctrinal blind spot rather than a settled rule: India currently has no clear domestic legal mechanism for distinguishing, at the point of an incident, between a private armed guard, whose presence would not obviously trigger sovereign immunity, and a Vessel Protection Detachment, which, per the Enrica Lexie award, plainly does. Every future incident involving a foreign VPD in Indian waters will have to litigate this question again, at the same cost in time and diplomatic capital that the Enrica Lexie dispute exacted over eight years.
VII. India’s Enforcement Gap: The Maritime Zones Act and the Missing Follow-Through
The deeper problem is legislative inertia. The Maritime Zones Act, 1976, was drafted to assert India’s claims to the territorial sea, contiguous zone, exclusive economic zone, and continental shelf in the immediate aftermath of UNCLOS’s Third Conference, at a time when the principal concerns were fisheries and continental shelf resources rather than criminal jurisdiction over foreign-flagged shipping.[29] Section 7 of the Act extends Indian law into the exclusive economic zone only by executive notification, and the 1981 notification relevant to Enrica Lexie was drafted decades before anyone anticipated an armed VPD incident of this kind.[30]
Despite the extensive international attention the case generated, and despite the tribunal’s pointed refusal to test the 1976 Act’s compatibility with UNCLOS, Parliament has not amended the Maritime Zones Act to clarify the scope of India’s penal jurisdiction over incidents involving foreign state officials embedded on commercial vessels within the exclusive economic zone. Nor has India entered into the kind of bilateral status-of-forces arrangements with major flag states — Italy, Panama, Liberia, the Marshall Islands, and other significant registries — that might pre-allocate jurisdiction over VPD incidents before they occur, in the way status-of-forces agreements do for land-based military deployments. The result is that the next VPD-related shooting in Indian waters would very likely proceed exactly as Enrica Lexie did — through years of parallel domestic prosecution, provisional measures, and eventual arbitration — rather than through a settled domestic or bilateral framework capable of resolving the matter within months.
VIII. Recommendations
Three concrete steps would close the gap this article has identified.
1. Amend the Maritime Zones Act. Parliament should amend the Maritime Zones Act, 1976, to state explicitly the basis on which India exercises prescriptive and adjudicative jurisdiction over incidents in the exclusive economic zone involving foreign vessels, rather than relying on decades-old executive notifications whose UNCLOS-compatibility remains untested.[31]
2. Negotiate bilateral or multilateral agreements. India should pursue bilateral or multilateral agreements with major flag states and naval powers operating anti-piracy patrols in the Indian Ocean, expressly allocating jurisdiction over VPD-related incidents in advance.
3. Review the SUA framework. India’s domestic implementation of the SUA Convention framework should be reviewed specifically to clarify how the naval auxiliary exclusion applies to embedded VPDs rather than genuine warships, closing the interpretive gap that the Enrica Lexie marines were able to exploit.[32]
None of these steps requires India to concede anything about its underlying sovereignty claims in the exclusive economic zone. They require only that India stop litigating the same jurisdictional uncertainty from scratch every time an incident occurs.
IX. Conclusion
The Enrica Lexie award is frequently discussed as a case about immunity, and rightly so, since immunity is what ultimately decided it. But the award’s more lasting significance lies in what it left unresolved: an unsettled reading of Article 92(1) that the tribunal adopted in one breath and complicated in the next,[33] and an Indian statutory framework whose compatibility with UNCLOS has now survived a decade of litigation without ever being tested on the merits.[34] Over fourteen years after two fishermen died off the coast of Kerala, India’s maritime enforcement architecture remains built for a world of fisheries disputes and continental shelf claims, not one in which armed foreign naval personnel routinely patrol merchant vessels through its exclusive economic zone. Until Parliament addresses that gap directly, the next Enrica Lexie will be litigated exactly as slowly, and exactly as expensively, as the last one.
References
[1] The ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, Award (May 21, 2020).
[2] [Citation to be supplied.]
[3] The ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, Award ¶¶ 1-15 (May 21, 2020).
[6] United Nations Convention on the Law of the Sea art. 292, Dec. 10, 1982, 1833 U.N.T.S. 397.
[7] The ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, Order on Provisional Measures (Apr. 29, 2016).
[8] The ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, Award ¶ 1094 (May 21, 2020).
[9] Restatement (Third) of Foreign Relations Law of the United States §§ 401-403 (Am. L. Inst. 1987).
[10] United Nations Convention on the Law of the Sea art. 92, cl. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.
[11] United Nations Convention on the Law of the Sea art. 58, cl. 2, Dec. 10, 1982, 1833 U.N.T.S. 397.
[12] S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7); United Nations Convention on the Law of the Sea art. 97, cl. 1, Dec. 10, 1982, 1833 U.N.T.S. 397.
[13] Máté Csernus, Might Contain Traces of Lotus: The Limits of Exclusive Flag State Jurisdiction in the Norstar and the Enrica Lexie Cases, 36 Leiden J. Int’l L. 947, 953-56 (2023).
[14] M/V “Norstar” (Pan. v. It.), Judgment, ITLOS Case No. 25 (Apr. 10, 2019); Csernus, supra note 13, at 960-63.
[15] The ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, Award (May 21, 2020) (finding concurrent adjudicative jurisdiction and rejecting Italy’s reliance on UNCLOS art. 97(1)).
[16] The ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, Award (May 21, 2020) (finding Italy in breach of UNCLOS art. 87, ¶ 1(a) and art. 90 for interference with the navigation of the St. Antony).
[17] The ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, Award, Dispositif § B (May 21, 2020).
[18] Editorial, Italian Marines-Enrica Lexie Case: Deciphering PCA Award in ‘The Italian Republic v. The Republic of India,’ LiveLaw (July 2, 2020, 8:00 PM), https://www.livelaw.in/columns/italian-marines-enrica-lexie-case-deciphering-pca-award-in-the-italian-republic-v-the-republic-of-india-159397.
[19] The ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28, Award (May 21, 2020) (declining to address the compatibility of India’s 1976 Maritime Zones Act and 1981 Notification with the Convention); The Maritime Zones Act, 1976, § 7 (India).
[21] Csernus, supra note 13, at 966-69.
[25] Harisankar K.S., Jurisdictional and Immunity Issues in the Story of Enrica Lexie: A Case of Shoot & Scoot Turns Around!, EJIL: Talk! (Mar. 25, 2013), https://www.ejiltalk.org/jurisdictional-and-immunity-issues-in-the-story-of-enrica-lexie-a-case-of-shoot-scoot-turns-around/.
[27] Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation art. 2, Mar. 10, 1988, 1678 U.N.T.S. 221.
[29] The Maritime Zones Act, 1976 (India).
