The dispute between Italy and India on the Enrica Lexie incident has been finally decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian Marines involved in the case at hand, the majority judgement (by three votes to five) has affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on state practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all state officials, and regardless of the type of functions they perform
The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law
R. Nigro
2020-01-01
Abstract
The dispute between Italy and India on the Enrica Lexie incident has been finally decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian Marines involved in the case at hand, the majority judgement (by three votes to five) has affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on state practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all state officials, and regardless of the type of functions they performI documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
