On 2 July 2020, an Arbitral Tribunal under Annex VII of the United Nations Convention on the Law of Seas (UNCLOS) published a redacted dispositf in “The Enrica Lexie Incident” between India and Italy. Since then the final Award of 21 May 2020 has become publicly available.The dispute pertained to the killing of two Indian fishermen on board an Indian vessel named the “St. Antony” by two Italian marines aboard an oil tanker flying the Italian flag called the “Enrica Lexie” (Award, paras 77-117). The incident led to India exercising criminal jurisdiction over the Italian marines, which was disputed by Italy inter alia on the grounds that India acted inconsistently with the UNCLOS as the marines had immunity by virtue of being “Italian State officials exercising official functions” (Award, para 732).
The Tribunal determined that Italy was liable to pay compensation to India for infringing its freedom navigation and for physical interference by shooting at the “St. Antony” (Award, paras 1085-1088). However, importantly for the purpose of this blog post, the Tribunal also determined that India was precluded from exercising jurisdiction over the Italian marines as they were entitled to immunity under customary international law (Award, para 873). Accordingly, this post will argue that the Tribunal was incorrect to hold that it was entitled to exercise jurisdiction over the question as to whether the marines enjoy immunity from jurisdiction in the first instance.
- UNCLOS Disallows the Expansion of Jurisdiction Beyond the Treaty
An Arbitral Tribunal is bound to determine the “principal norms” applicable to the dispute it adjudicates. The application of incorrect norms implies that a tribunal is acting in excess of its jurisdiction, which remains a ground for setting aside the award.
According to Bartels, “principal norms” are those which are used by tribunals to make determinations it is authorised to by virtue of its relevant jurisdictional instrument. On the contrary, “incidental norms” are used to make additional determinations which are only relevant for the purpose of the tribunal being able to make principal determinations. The identification of whether a norm is “principal” or “incidental” depends objectively on the precise question being asked to the tribunal (p. 117).
In this context, as Bartels notes, if a jurisdiction clause of a treaty sets out the “principal norms” applicable to a certain case these norms would exclude the application of any norm, which does not form part of the clause (p. 124). Such exclusion is justified on the basis that the jurisdiction clause acts as lex specialis to other clauses such as those concerning applicable law by specifically setting out the “principal norms” to be applied by the tribunal.
The jurisdiction clause of the UNCLOS i.e. Article 288(1), sets out that the tribunal shall have jurisdiction over disputes concerning “the interpretation or application of [the UNCLOS]”. Thus, an Annex VII tribunal is barred from adjudicating claims that do not involve the interpretation or application of the UNCLOS, as the jurisdiction clause specifically notes the treaty as the “principal” norm.
This interpretation is buttressed by the determination made by the tribunal in MOX Plant. In the context of the relationship between Article 288(1) and Article 293(1), concerning “applicable law”, which states that a tribunal “shall apply [the UNCLOS] and other rules of international law”. Despite the wording of Article 293(1), the Tribunal held that there exists a “cardinal distinction” between the two provisions, ultimately holding that any claim that arises under legal instruments other than the UNCLOS is inadmissible (MOX Plant, para 19). Bartels concludes that even though the tribunal in MOX Plant was unable to explain why the jurisdiction clause must be prioritised, such prioritisation is justified by operation of the principle of lex specialis as the jurisdiction clause “specifically instructs a tribunal on principal norms to be applied” (p. 126).
A similar conclusion can be drawn by reference to the findings of the Chagos Marine Protected Area Arbitration. The tribunal explicitly noted that where the “real issue” and “object of the claim” are unrelated to the interpretation or application of the UNCLOS, an incidental connection between the issues would be insufficient to bring the dispute within the jurisdiction of the tribunal (para 220). Admittedly, the tribunal in the Chagos Marine Protected Area Arbitration also determined that Article 297(1) of the UNCLOS expands the jurisdiction of tribunals “beyond that which would flow from Article 288(1) alone” (para 316). However, the tribunal clarified that “other pertinent rules of international law” are only relevant with regard to Article 297(1)(a) as the provision refers to Article 58 (para 316a). In cases where Article 58 is inapplicable, the UNCLOS remains the “principal” norm and excludes the application of other principles of international law.
Thus, for the most part, both Articles 288(1) and 297(1) as jurisdiction clauses determine the UNCLOS to serve as the “principal” norm. Accordingly, an Annex VII tribunal cannot expand its jurisdiction to determine questions which are unrelated to the application or interpretation of the treaty. Beyond such determinations, a tribunal may only exercise very limited “incidental” jurisdiction, which the tribunal in Chagos Marine Protected Area Arbitration described as “ancillary determinations of law” that are “necessary to resolve the dispute presented to it” (para 220, emphasis supplied).
2. The Question Concerning Immunities was Beyond the Jurisdiction of the Tribunal
In the Enrica Lexie case, Italy argued that the Tribunal had jurisdiction over the question of whether their marines enjoyed immunities as the same involved the interpretation and application of the UNCLOS. It specifically relied on Articles 2(3), 56(2), 58(2), 95, 96 and 297(1) (Award, paras 797, 799-800). The Tribunal expressly found that the question of immunities did not involve the interpretation or application of any of the provisions relied upon by Italy (Award, paras 798-799, 801-802). Nevertheless, the Tribunal held that it could exercise jurisdiction over the question of immunity since the issue was “an incidental question that necessarily presents itself in the application of the Convention in respect of the dispute before it, namely which Party is entitled to exercise jurisdiction” over the incident (Award, para 811).
The Tribunal exercising jurisdiction by characterising the question concerning immunities as “incidental” is incorrect for two reasons: first, as noted, the characterisation is dependent upon the question presented to the tribunal. Thus, the Jurisdiction Award in the South China Sea Arbitration determined that the tribunal must adopt an “objective approach” to “isolate the real issue” and “identify the object of the claim”. For this purpose, the tribunal is “bound to” interpret the submissions of the parties on an “objective basis” (emphasis supplied, para 150). In the Enrica Lexie case, the precise question presented to the Tribunal was “whether the Marines enjoy immunity from Indian criminal jurisdiction” (Award, para 734). Thus, the question of the existence of immunities, as presented, was not incidental in character. This reading is confirmed by Judge Robinson’s dissent, which takes notes of Italy’s submissions and concludes that “the issue of the immunity of marines is a core element of the dispute” (emphasis supplied, para 29).
Second, it is incorrect to suggest that merely because a link exists between the exercise of jurisdiction and immunity makes the latter incidental to determine the principal question. Indeed, as held in the aforementioned South China Sea Arbitration, linked questions do not imply that both fall under the jurisdiction of the tribunal (para 152). The Tribunal determined that the issue of immunities must “necessarily” be decided to ascertain the entitlement of jurisdiction. However, Schatz correctly points out that the Tribunal failed to apply the requirement of “necessity” as the question of immunities was not preliminary in nature. Further, It is also apparent from the Tribunal’s own reasoning that it is possible to adjudicate the question of India’s exercise of jurisdiction without determining the issue of immunities. For instance, the Tribunal notes that “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, emphasis supplied, para 239). Thus, following the Tribunal’s reasoning, the issues remain separable. Accordingly, in both instances it is apparent that since the question of immunities does not concern the interpretation and application of the UNCLOS, the Tribunal cannot exercise jurisdiction as it is limited by the “principal norms” in its jurisdictional clause.
As the Tribunal notes, that the UNCLOS does not “provide a basis for entertaining an independent claim under general international law” (Award, para 809). However, by characterising the question concerning immunities as “incidental”, the Tribunal is attempting to do indirectly, what it cannot do directly. Upon making a determination that the question does not attract any provision of the UNCLOS and yet proceeding to determine the issue substantively, the Tribunal acted in manifest excess of jurisdiction.
In light of the Award being rendered, the Government of India has moved the Supreme Court to dispose all pending proceedings related to the Enrica Lexie incident. This renders the discussion with respect to this case largely academic. Nevertheless, as evidenced from the decision in Tadić (para 14) “incidental” jurisdiction has been exercised by international tribunals to make controversial determinations in excess of their jurisdictional clauses. Thus, the Tribunal’s determination of the issue of immunities de hors the application of “principal norms” present in the jurisdictional clause is sure to create interesting discussions on the interpretation of such clauses in the future.
Pranay Lekhi is an incoming Legal Advisor (not admitted in the UK) at Allen & Overy London. He completed his LL.M. from the University of Cambridge with first-class honours, specialising in international law. The views expressed in the article are solely those of the author.