The Enrica Lexie Award – Some Thoughts on “Incidental” Jurisdiction (Part I)

[Deepak Raju is a senior associate at Sidley Austin LLP, Geneva. The views expressed in this article are exclusively those of the author and do not necessarily reflect those of Sidley Austin LLP and its partners.]

An arbitral tribunal established under Annex VII to the United Nations Convention on the Law of the Sea (“UNCLOS”), in the Enrica Lexie dispute between India and Italy, has rendered its award.  While the full text of the award is yet to be published by the Permanent Court of Arbitration, which administered the arbitration, the Government of India has filed the award before the Supreme Court of India, making it publicly available.

To recall, the dispute relates to an incident at sea, involving Enrica Lexie, an Italian flagged oil tanker, and St. Antony, an Indian fishing vessel.  On 15 February 2012, when the vessels came in close proximity of each other, Italian marines of a Vessel Protection Detachment serving on Enrica Lexie shot at St. Antony, killing two of its crew (Award, paras. 87-117).  The incident occurred 20 nautical miles off the coast of Kerala, India (Award, para. 87). Subsequently, following requests from Indian authorities, Enrica Lexie changed course to enter Indian territorial waters (Award, paras. 137-149).  Indian authorities commenced criminal proceedings against the two Italian marines, attracting protestations of lack of jurisdiction from Italy.

After a series of legal proceedings in India – and criminal investigation in Italy – Italy submitted the dispute to an Annex VII Tribunal, which has now issued its award holding that India must cease proceedings against the marines on account of their immunity (Award, para. 888).  The Tribunal also found Italy to have violated Articles 87(1)(a) and 90 concerning the freedom of navigation on the high seas (Award, para. 1043) and ordered Italy to compensate India for the losses resulting from that breach (Award, paras. 1085-1090).

The Tribunal’s award raises interesting questions about the “incidental” jurisdiction of international courts and tribunals. 

1. Findings on incidental jurisdiction

Among the claims submitted to the Tribunal by Italy was that the Italian marines, being officials of the Italian armed forces engaged in their official duty, were entitled to immunity from Indian criminal jurisdiction.  Italy’s claim of immunity for the marines was based ultimately, not on any provision of the UNCLOS, but on alleged customary international law.  I say “ultimately” because Italy did refer to UNCLOS Articles 2(3), 56(2), 58(2), 95, 96 and 297(1), in support of immunity, but those arguments were summarily rejected by the Tribunal, leaving the question of immunity to be decided with reference to international law outside UNCLOS (Award, paras. 797-802).

This claim was the focus of two different jurisdictional objections by India.

Under Article 288(1) of the UNCLOS, the Tribunal had “jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with [Part XV of the UNCLOS]”.

India argued that the dispute brought before the Tribunal by Italy was not one “concerning the interpretation or application” of the UNCLOS, on the basis that “‘the core issue, the real subject matter of the dispute’ is the question whether the Marines are entitled to immunity from criminal proceedings arising out of the ‘Enrica Lexie’ incident” (Award, para. 226). 

Quoting the International Court of Justice (“ICJ”) in Nuclear Tests, the Tribunal held that it had to “isolate the real issue in the case and […] identify the object of the claim” (Award, para. 231).  Having examined the submissions of the parties throughout the proceedings, the Tribunal found that “[t]o the extent that Italy refers to issues of immunity in defining its dispute in its pleadings, it is with respect to its relevance as an exception to India’s exercise of criminal jurisdiction over the Marines, and as one out of several bases on which Italy alleges such exercise to be unlawful” (Award, para. 238).  The Tribunal also found that “[o]n Italy’s case, it was conceivable that the dispute between the Parties would be decided without a determination on the question of immunity (such as by a finding by the Arbitral Tribunal that Italy has exclusive jurisdiction over the incident under Articles 87 or 97 of the Convention)” (Award, para. 239).  On this basis, the Tribunal found that “there is a dispute between the Parties concerning the interpretation or application of the Convention in the present case” (Award, para. 244).

While the reasoning above was the basis of the Tribunal’s finding that the “dispute” as a whole was within its jurisdiction, that did not answer the question whether the claim of immunity itself was properly within the jurisdiction of the Tribunal.

On that question, the Tribunal found that “[w]hether [immunity] applies in the present case is a question that forms an integral part of the Arbitral Tribunal’s task to determine which Party may exercise jurisdiction over the Marines” (Award, para. 808), and that “[t]he Arbitral Tribunal could not provide a complete answer to the question as to which Party may exercise jurisdiction without incidentally examining whether the Marines enjoy immunity” (Award, para. 808). Quoting the Permanent Court of International Justice (“PCIJ”) in the Case Concerning Certain German Interests, the Tribunal characterized the question of immunity asfalling within “questions preliminary or incidental to the application” (Award, para. 808).