{"id":4475,"date":"2020-07-24T00:00:00","date_gmt":"2020-07-24T07:00:04","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/incidental-jurisdiction-in-the-award-in-the-enrica-lexie-incident-italy-v-india-part-ii\/"},"modified":"2020-12-09T12:03:34","modified_gmt":"2020-12-09T11:03:34","slug":"incidental-jurisdiction-in-the-award-in-the-enrica-lexie-incident-italy-v-india-part-ii","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/incidental-jurisdiction-in-the-award-in-the-enrica-lexie-incident-italy-v-india-part-ii\/","title":{"rendered":"Incidental jurisdiction in the award in “The \u2018Enrica Lexie\u2019 Incident (Italy v. India)” – Part II"},"content":{"rendered":"

After having addressed the existence, requirements and limits of incidental jurisdiction of UNCLOS tribunals under Article\u00a0288(1) UNCLOS in the first post<\/a>, this post turns to the approach taken by the arbitral award in Italy v. India<\/em>.<\/p>\n

Facts of the case<\/strong><\/p>\n

To briefly recapitulate, the case concerned an incident that occurred on 15 February 2012 in India\u2019s Exclusive Economic Zone (EEZ). Two armed Italian Navy marines that belonged to a vessel protection detachment on board the privately owned and operated Italian flagged oil tanker Enrica Lexie<\/em> fired shots at the Indian flagged fishing vessel St. Antony<\/em>, killing two Indian fishermen (paras. 79-117). Indian authorities subsequently directed the Enrica Lexie<\/em> to the Indian port of Kochi and, thereafter, exercised criminal jurisdiction over the two Italian marines in relation to the killing of the two Indian fishermen (paras. 118-193), as did Italy in its own investigation and proceedings (paras. 194-216).<\/p>\n

The arbitral tribunal\u2019s characterization of the dispute<\/strong><\/p>\n

The arbitral tribunal characterized the overall dispute in the following terms:<\/p>\n

\u201cHaving analysed and established the nature of the dispute between the Parties in the present proceedings, the Arbitral Tribunal concludes that the Parties\u2019 dispute is appropriately characterised as a disagreement as to which State is entitled to exercise jurisdiction over the incident of 15 February 2012 involving the \u2018Enrica Lexie\u2019 and the \u2018St. Antony\u2019, which raises questions under several provisions of the Convention, including Articles 56, 58, 59, 87, 92, 97, 100, and 300, the interpretation or application of which the Parties have different views. The dispute may raise, but is not limited to, the question of immunity of the Marines<\/em> (para. 243; emphasis added).\u201d<\/p><\/blockquote>\n

However, it may be doubted, as Judge Robinson did in his dissent (paras. 4-24), that the arbitral tribunal properly characterized the dispute. Clearly, the immunity issue formed part of the overall<\/em> dispute of the parties, but it was the tribunal\u2019s task to identify to what extent that overall dispute fell within the scope of Article\u00a0288(1) UNCLOS<\/em>. As Judge Robinson persuasively argued, the \u201cimmunity of the marines is [\u2026] a core element of the dispute; it is the real issue in the dispute between the Parties (para. 29)\u201d. Indeed, based on Italy\u2019s own submissions, the only link between UNCLOS and the immunity issue would have been a potential renvoi<\/em> to the customary international law of immunity of State officials in the UNCLOS provisions invoked by Italy. In this respect, Italy\u2019s final submission was:<\/p>\n

\u201cBy asserting and continuing to exercise its criminal jurisdiction over Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, India is in violation of its obligation to respect the immunity of the Marines as Italian State officials exercising official functions<\/em>, in breach of Articles 2(3), 56(2), 58(2) and 100 of UNCLOS (para. 75; emphasis added).\u201d<\/p>\n

Italy\u2019s unsuccessful reliance on alleged renvoi<\/em>-provisions in UNCLOS<\/strong><\/p>\n

However, the arbitral tribunal found all provisions invoked by Italy to be inapplicable. It considered that Articles\u00a02(3), 56(2) and 58(2) of UNCLOS, which concern the EEZ or territorial sea, were not applicable because India\u2019s enforcement measures were taken in India\u2019s internal waters and territory (para. 798). It did not take a position on whether (1) the provisions invoked by Italy do indeed contain a renvoi<\/em> and\/or (2) whether they constitute obligations to comply with (or to have due regard to) external rules falling within the scope of the alleged renvoi<\/em> (cf. the expansive jurisprudence in Mauritius v. United Kingdom<\/em> (para. 503), rejected by Judge Robinson in an obiter dictum<\/em> in his dissenting opinion (para. 31)).<\/p>\n

Italy had also invoked Articles 297(1), 95, 96, and 100 UNCLOS, but these provisions were equally found by the arbitral tribunal to be inapplicable (paras. 799-802). Thus deprived of applicable provisions in UNCLOS that could (allegedly) provide a sufficiently strong jurisdictional link under Article\u00a0288(1), the arbitral tribunal acknowledged that UNCLOS \u201cmay not provide a basis for entertaining an independent immunity claim<\/em> under general international law (para. 809; emphasis added)\u201d. From this moment, the immunity issue did no longer form part of the UNCLOS dispute as the arbitral tribunal itself severed the only potential link between the two. This was not, however, acknowledged by the arbitral tribunal.<\/p>\n

The arbitral tribunal\u2019s acceptance of incidental jurisdiction over the immunity issue<\/strong><\/p>\n

Next, the arbitral tribunal turned to the question of incidental jurisdiction. Curiously, however, as noted by Judge Robinson in his dissent (paras. 42-49), the tribunal did not state what it considered the requirements of incidental jurisdiction to be. Despite the fact that two of the three arbitrators of the majority, Judges Golitsyn and Paik, are simultaneously arbitrator and president of the tribunal (in reverse order) in Ukraine v. Russia<\/em>, the award contains no reference to the findings of that tribunal (which essentially followed the methodology adopted in Mauritius v. United Kingdom<\/em>) or the tribunal in Mauritius v. United Kingdom<\/em> on questions of incidental jurisdiction.<\/p>\n

Instead, the arbitral tribunal simply stated that the dispute \u201ccould [not] be satisfactorily answered without addressing the question of the immunity of the Marines (para. 805).\u201d In its view, the arbitral tribunal \u201ccould not provide a complete answer to the question as to which Party may exercise jurisdiction without incidentally examining whether the Marines enjoy immunity (para. 808)\u201d. This was because \u201c[i]mmunity from jurisdiction, by definition, operates as an exception to an otherwise-existing right to exercise jurisdiction\u201d and because the question \u201c[w]hether that exception applies in the present case is a question that forms an integral part of the Arbitral Tribunal\u2019s task to determine which Party may exercise jurisdiction over the Marines (para. 808)\u201d. On this basis, the arbitral tribunal concluded that its \u201ccompetence extends to the determination of the issue of immunity of the Marines that necessarily arises as an incidental question in the application of [UNCLOS]<\/em> (para. 809; emphasis added)\u201d.<\/p>\n

Was the immunity issue \u201cincidental\u201d to the UNCLOS dispute?<\/strong><\/p>\n

Applying the \u201cnecessity\u201d requirement as introduced in the first post<\/a>, it is quite evident that the immunity issue was not<\/em>a preliminary question in the interpretation or application of any of Italy\u2019s claims based on UNCLOS. As mentioned, after the arbitral tribunal had rejected Italy\u2019s claims based on (alleged) renvoi<\/em> provisions in UNCLOS, none of the remaining provisions invoked required a prior determination of the immunity issue. Therefore, the immunity issue no longer formed part of the UNCLOS dispute<\/em>.<\/p>\n

What remained was a dispute as to whether Italy or India (or both) had jurisdiction under UNCLOS over the incident, requiring an interpretation and application of, inter alia<\/em>, Articles\u00a092 and 97 UNCLOS. However, prior to turning to the immunity issue, the arbitral tribunal found that Italy and India had concurrent jurisdiction under Article\u00a092(1) UNCLOS over the incident (paras. 363-370). This finding evidently did not require, as a preliminary question, a determination that the Italian marines did not enjoy immunity from criminal jurisdiction. Indeed, as the International Court of Justice (ICJ) stated in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)<\/em><\/a>, there is an important distinction between jurisdiction and immunity from jurisdiction: \u201cjurisdiction does not imply absence of immunity, while absence of immunity does not imply jurisdiction (para. 59)\u201d. How, then, could a determination of the immunity issue have been \u201cnecessary\u201d for the determination of the question of jurisdiction under UNCLOS<\/em>?<\/p>\n

Applying the \u201cancillarity\u201d requirement, the weight of the immunity dispute within the overall dispute was \u2013 as already stated in the context of the characterization of the dispute \u2013 arguably such that it would probably not have been \u201cminor\u201d to the UNCLOS dispute, but itself constituted a separate \u201creal issue\u201d falling outside the scope of incidental jurisdiction under Article 288(1).<\/p>\n

Concluding remarks<\/strong><\/p>\n

Regrettably, the award does not address the requirements for incidental jurisdiction of international courts and tribunals operating under a compromissory clause generally, nor does it place these general requirements in the specific context of Part\u00a0XV of UNCLOS and previous jurisprudence.\u00a0It seems more convincing to consider that the immunity issue was not incidental (neither \u201cnecessary\u201d nor \u201cancillary\u201d) to the UNCLOS dispute.<\/p>\n

It is true that the ICJ very recently considered in the ICAO Council Cases (here<\/a> and here<\/a>) that incidental jurisdiction of dispute settlement bodies with limited subject-matter jurisdiction may extend to defences based on countermeasures <\/a>where such a determination is indispensable to a decision of a claim for which it has jurisdiction. However, the ICJ\u2019s approach, if one considers it persuasive, is still more restrictive than that of the arbitral tribunal in India v. Italy<\/em>. Lawful countermeasures may preclude State responsibility under rules of the treaty over which jurisdiction exists (in the present case UNCLOS), whereas the question of immunity at issue in India v. Italy<\/em> was not indispensable to the merits of Italy\u2019s claims concerning violations of provisions of UNCLOS (notably Articles\u00a092, 97 and 100). It was an entirely separate issue that concerned the violation of the customary international law of immunity of state officials as primary<\/em> obligations.<\/p>\n

In conclusion, the approach taken by the majority reflects a very broad understanding of the extent of incidental jurisdiction of UNCLOS tribunals that is arguably at odds with the extent of consent to jurisdiction granted under Article\u00a0288(1). If it were to form the starting point of a new line of jurisprudence, it should be hoped that it is restricted to defenses such as immunity that are at least closely related to the UNCLOS provisions at issue.<\/p>\n

 <\/p>\n

Valentin J. Schatz<\/a> is a research associate and Ph.D. candidate at the Chair of International Law of the Sea and International Environmental Law, Public International Law and Public Law at the University of Hamburg and a member of the Institute for the Law of the Sea and for Maritime Law.<\/em><\/p>\n

 <\/p>\n

Cite as: Valentin J. Schatz, “Incidental jurisdiction in the award in The \u2018Enrica Lexie\u2019 Incident (Italy v. India)<\/em>: Part II”, 24 July 2020, doi: 10.17176\/20200724-115515-0<\/a>.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

After having addressed the existence, requirements and limits of incidental jurisdiction of UNCLOS tribunals under Article\u00a0288(1) UNCLOS in the first post, this post turns to the approach taken by the arbitral award in Italy v. India. Facts of the case To briefly recapitulate, the case concerned an incident that occurred on 15 February 2012 in […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[4597],"article-categories":[6000],"doi":[],"class_list":["post-4475","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-valentin-j-schatz","article-categories-article"],"acf":{"subline":""},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4475","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=4475"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4475\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=4475"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=4475"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=4475"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=4475"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=4475"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=4475"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}