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

[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.]

The “non-incidental” consequence of “incidental” jurisdiction: Where the tail wags the dog

On the merits of the dispute, the parties disagreed on whether India had violated provisions of the UNCLOS by applying criminal jurisdiction to the marines.

The Tribunal first found that the territoriality principle entitled both States to exercise jurisdiction because “the alleged offence was commenced on board the Italian vessel, ‘Enrica Lexie’, and completed on board the Indian vessel, ‘St. Antony’” (Award, para. 367).  The Tribunal went further to find that “India’s exercise of jurisdiction over the ‘Enrica Lexie’ incident is not only compatible with the Convention, but justified by Article 92, paragraph 1, of the Convention” (Award, para. 368).

The Tribunal then rejected Italy’s claim that India violated Articles 87(1) and 92(1) of UNCLOS by exercising its jurisdiction while Enrica Lexie was outside Indian territorial waters (Award, paras. 505, 536).  The basis for this was the Tribunal’s finding, founded on the captain’s testimony, that Enrica Lexie changed course and entered Indian territorial waters without any compulsion (Award, para. 479).  It was only after Enrica Lexie entered Indian territorial waters that India commenced the exercise of its jurisdiction.

The Tribunal also rejected Italy’s claim under Article 97 of UNCLOS, which confers on the flag State exclusive penal jurisdiction relating to “incident[s] of navigation” (Award, para. 652).  The Tribunal found that the “damage [to St. Antony] and mortal harm [to its crew] were not caused by the movement or manoeuvring of either ship”, meaning that the event was not an “incident of navigation” (Award, para. 652).

The tribunal further rejected Italy’s claim under Article 100 of the UNCLOS concerning the obligation to cooperate in matters of piracy, and the derivative claim under Article 300 of the UNCLOS concerning the obligation to exercise rights in good faith (Award, paras. 728, 730).

At this point, all of Italy’s arguments against India’s exercise of jurisdiction, based on provisions of the UNCLOS, had been examined and rejected.  Within the four corners of the UNCLOS, the inevitable conclusion was that India had not violated any provision of the Convention, and was within its right, in its exercise of jurisdiction over the marines.

The Tribunal then turned to the question of immunity, over which it had assumed “incidental” jurisdiction.  The tribunal found that the marines were “State officials of the Italian Republic”, and were thus entitled to immunity, under customary international law (Award, para. 873).  Although India argued for a “territorial tort” exception to immunity, again under customary international law, the Tribunal rejected that argument on the facts (Award, para. 873).  The Tribunal’s finding on immunity immediately led it to rule that “India must take the necessary steps in order to cease to exercise its criminal jurisdiction over the Marines” (Award, para. 888).

To recall, the Tribunal had decided the dispute to be one falling within its jurisdiction under Article 288(1) of UNCLOS, on the basis that “it was conceivable that the dispute between the Parties would be decided without a determination on the question of immunity” (Award, para. 239).  Yet, deciding the dispute without a determination on the question of immunity would have led the Tribunal to the exact opposite of the conclusion at which it arrived (i.e., that India was free of any prohibition under the applicable rules against exercising its jurisdiction).  The question which the Tribunal characterized as “preliminary or incidental to the application” became the sole reason why conclusions flowing from the UNCLOS had to be set aside entirely.

Incidental jurisdiction – What next?

The Tribunal’s assumption of “incidental” jurisdiction was the subject of spirited dissent from two of the arbitrators, Dr. Pemmaraju Sreenivasa Rao and Judge Patrick Robinson.  Judge Robinson argued that the Tribunal should have declined jurisdiction over the entire dispute on the basis that the dispute did not concern interpretation or application of the UNCLOS, since “immunity of the marines is not an incidental question; rather it is a core element of the dispute; it is the real issue in the dispute between the Parties” (Judge Robinson’s Dissent, para. 81(ii)).  Dr. Rao argued that there were “two distinct and separate disputes”, and that “the claim concerning immunity is not and cannot be treated as an incidental issue to the other dispute over which the Arbitral Tribunal found jurisdiction” (Dr. Rao’s Dissent, paras. VII(i)-(ii)).

The Enrica Lexie award is a remarkable instance where a tribunal established under a treaty, to resolve disputes relating to “interpretation or application” of that treaty, assumed “incidental” jurisdiction over a claim founded on rules outside the treaty, and then used that claim to completely negate the conclusion flowing from the application of the treaty.

To do this, the Tribunal relied on the PCIJ judgment in Case Concerning Certain German Interests, for the proposition that an adjudicator’s jurisdiction extends to “questions preliminary or incidental to” matters properly falling within its jurisdiction (Award, para. 808).

In the Case Concerning Certain German Interests, Germany challenged Poland’s conduct with respect to certain property allegedly belonging to German nationals, as a violation of the Geneva Convention concerning Upper Silesia.  Poland argued that the property in question did not belong to German nationals, but to the Polish State, as the legal successor of the German Reich under Article 256 of the Treaty of Versailles (Certain German Interests, para. 47).  The Court found that “the application of the Geneva Convention is hardly possible without giving an interpretation of Article 256 of the Treaty of Versailles and the other international stipulations cited by Poland” (Id.).  It was these considerations, relating to ownership of the property at issue, which the Court treated as “questions preliminary or incidental to” the dispute under the Geneva Convention properly falling within its jurisdiction (Id.).

It is unsurprising that the ownership of property is a “question[] preliminary or incidental to” the application of treaty provisions concerning deprivation of property.  The “preliminary or incidental” question here was nothing but an exercise in determining whether the treaty under which the dispute had been brought actually applied to the prevailing fact situation.  Nothing in the Case Concerning Certain German Interests stands for the proposition that an adjudicator tasked with resolving disputes concerning the interpretation or application of a treaty may come to a resolution within the four corners of that treaty, and then discard that resolution on the basis of international law extraneous to the treaty, for the sake of “provid[ing] a complete answer”.

Dr. Rao’s dissent recalls the ICJ’s observation, in the Obligation to Negotiate Access to the Pacific Ocean case, that “in the past, applications that are submitted to the Court often present a particular dispute that arises in the context of a broader disagreement between parties”.  Among other authorities for this proposition, he cites the ICJ’s judgment in United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Dr. Rao’s Dissent, para. 30).  Had Iran, in that case, formulated its assertions about the United States’ past conduct over the decades in the proper structure of a countermeasures argument, would it have been permissible for the Court to resolve all the disagreements that existed between the United States and Iran regarding each other’s conduct over the decades, and then explore whether its conclusions on the case actually falling within its jurisdiction could be negated by legal consequences flowing from those “ancillary” questions? If a WTO panel is told that a WTO-inconsistent measure is a countermeasure responding to a prior violation of UNCLOS, would it be permissible for the WTO panel to appropriate to itself the authority to resolve the UNCLOS dispute in the interest of providing a “complete answer”?

While affirmative responses to the above questions may contribute to solving the “fragmentation” problem in international law, it would strike a blow to the foundational principle that the authority of international adjudicators flow from the consent of States.