Immunities and Compromissory Clauses: Making Sense of Enrica Lexie (Part I)

Small(ish) disputes can make for significant holdings. From Nottebohm to Lotus to AAPL v Sri Lanka, the list of relatively limited incidents prompting far-reaching judicial and arbitral pronouncements is long. We may now have to add Enrica Lexie to it. The PCA’s award of 21 May 2020, released in full earlier this month, originated in a stand-off, on 15 February 2012, between an Italian oil tanker and an Indian fishing vessel — one that had dramatic, indeed, fatal consequences for two Indian fishermen, but that, relatively speaking, was brief and discrete. And yet it resulted in proceedings spanning five years, with claims, counter-claims, and procedural objections, which have now culminated in a massive award of no less 309 pages (not even counting the individual opinions).

Introduction

Unlike Nottebohm or Lotus, Enrica Lexie cannot be reduced to that one, timeless pronouncement that will enter the legal canon. Rather, it stands out for the breadth and diversity of matters on which the Tribunal pronounced: how to find the true nature of a dispute? what does it mean for flag states to have ‘exclusive  jurisdiction’ over their ships? what is the status of marines deployed on merchant ships, and do they benefit from immunity? what is considered a maritime incident at sea? what is the content of due regard obligations, etc.? These are just some of the questions addressed by the Tribunal, and from the mere listing, it is clear that the award speaks to special aspects of the law of the sea as well as cross-cutting issues of general international law. 

Our discussion in the following focuses on one of these cross-cutting issues. We look at one aspect of the Tribunal’s handling of the immunity issue — could Indian courts exercise criminal jurisdiction over the two Italian marines that had fired the shots? More specifically, we focus on the jurisdictional side of this question: Could the Tribunal, established under UNCLOS Annex VII, entertain the question of immunity — a matter that UNCLOS does not explicitly regulate? The Tribunal felt it could; but this outcome, which was reached over the dissents of Judge Robinson and Dr Rao, was not an obvious one.

Both the outcome and the reasoning towards it are significant. They reflect the Tribunal’s understanding of its own jurisdiction under UNCLOS, and of the proper construction of jurisdictional clauses. This is a cross-cutting issue, which arises regularly when proceedings are brought on the basis of a compromissory clause. As Enzo Cannizzaro and Beatrice Bonafé noted fifteen years ago (in an EJIL article that bears (re-)reading ), ‘compromissory clauses in a treaty have a compartmentalizing effect. They tend to draw a dividing line between the category of disputes which fall within their scope … from those which fall outside their scope’. And they do so for a reason: Compromissory clauses are ‘gatekeepers’, after all (in Matina Papadaki’s helpful phrase) setting out what disputes States want to take to international courts or tribunals, and the law that the latter may use in deciding them. But ‘gatekeeping’ is easier said than done, as many disputes ‘straddle the dividing line’ (Canizzaro and Bonafé). Responsibility is an obvious example: It has long been accepted that disputes about responsibility come within a court or tribunal’s jurisdiction, whether or not the compromissory clause mentions responsibility expressly: ‘reparation [as the PCIJ noted in Chorzow Factory] is the indispensable complement of a failure to apply a convention, and there is no necessity for this to be stated in the convention itself’. In the recent ICAO Council cases, the International Court of Justice (ICJ or Court) also seemed to accept that, in assessing violations of Air Services agreements, the ICAO Council was entitled to look at other issues arising in the context of general defences (counter-measures) invoked by the parties.  

Does the same logic apply to immunities — or do States have to ‘state it in the convention itself’ that they may be judicially or arbitrally determined? This was one of the most significant questions addressed in Enrica Lexie. In this blogpost, we discuss the Tribunal’s approach, and we compare it to the approach of another court, the ICJ, which, coincidentally, has addressed very similar questions in two recent proceedings, in Certain Iranian Assets and Immunity and Criminal Proceedings. Our post will not solve the riddle of compromissory clauses and incidental questions. But by comparing these three important decisions, we hope to highlight the significance of the issue, which unlike many other questions of dispute settlement is in need of fuller analysis.

Incidental Jurisdiction over Questions of Immunity in Enrica Lexie

So how did the issue arise in the Enrica Lexie case? In the relatively standard manner that immunities are often invoked. Following the incident of 15 February 2012, when two Italian marines fired shots at the fishing vessel, St. Antony, India arrested the two marines and charged them before Indian courts. As Italy argued before the Tribunal, this not only violated the principle of exclusive flag State jurisdiction, but also the functional immunity that the marines, as state officials, enjoyed. India – again, not uncommonly, for disputes of this kind – contested the claim to immunity. But, crucially, it argued first that the questions of immunity were at the heart of the case, and that they were outside the Tribunal’s jurisdiction, which depended on the construction of Article 288 UNCLOS. According to Article 288, UNCLOS dispute settlement bodies have ‘jurisdiction over any dispute concerning the interpretation or application of this Convention’. Proceeding from Article 288, the Tribunal broached the immunity issue in two steps:

First, it had to satisfy itself that the dispute as a whole was one concerning the interpretation and application of the UNCLOS (and not one primarily about immunity, as India had suggested in its pleadings). It dealt with that first aspect relatively (and perhaps too) quickly, by identifying ‘the real issue[s] in the case and […] identify[ing] the object of the claim’ (para 231). In its view, the two States disputed which one of them could exercise jurisdiction over the Enrica Lexie/St. Anthony incident, raising ‘the alleged violations of various provisions of the Convention’ (para 235). The marines’ immunity was only ‘one out of several bases on which Italy’ alleged India’s exercise of jurisdiction to be unlawful (para 238). In the words of the Tribunal, the dispute ‘may raise, but is not limited to, the question of immunity’ (para 243). So, this was not a situation where one of the parties was masquerading a different ‘real cause’ into a dispute about UNCLOS – and, according to the Tribunal, this was sufficient for the purposes of Article 288. It is relevant in this respect, that the Tribunal (correctly; see Methymaki/Tzanakopoulos) viewed Italy’s immunity claim as a potentially relevant ‘exception’ to India’s exercise of criminal jurisdiction: as argued by Italy, it was possible that the dispute could be dealt with without any discussion of the immunity issue (paras 238-239).

But such an easy way out was not available. The Tribunal found that under the territoriality principle and as provided in Article 92 UNCLOS Italy and India had concurrent jurisdiction over the incident (para 367) — so the question of immunity did matter. But could the Tribunal pronounce upon it? This, in view of the Tribunal, required a fuller analysis than the one offered in step 1 – not one looking at the character of the dispute as a whole, but at Italy’s express claim that India had violated the marines’ immunity. Could this claim and the application of the law on immunities be said to form part of the Tribunal’s exercise of jurisdiction over ‘[a] dispute concerning the interpretation or application of this Convention’ in the sense of Article 288 UNCLOS? According to India it could not, as immunity rules were ‘in general a different body of law’ from the Convention (para 789), viz. general international law.

Italy relied on a trusted strategy to bring the immunity issue within the realm of UNCLOS (and the Tribunal’s jurisdiction): it claimed that various UNCLOS provisions, referring to the exercise of rights in accordance with ‘other rules of international law’ (or similar) in effect incorporated immunity by renvoi. This strategy failed as the Tribunal found the provisions invoked by Italy inapplicable. The Tribunal was equally unconvinced that Article 297 mattered – which in Italy’s stretched construction was said to ‘exten[d] the jurisdiction of a court or tribunal … beyond Article 288(1)’ (para 779).

Nonetheless the Tribunal found its own way towards pronouncing on the immunity question: it came up with a ‘necessity argument’, partly borrowed from Italy’s first strategy. In its view, the marines’ potential claim to immunity was impossible to ignore; quite apart from any textual references to ‘other rules of international law’, immunity ‘necessarily arises as an incidental question in the application of the Convention’ (para 809). More specifically, the Tribunal asked whether ‘the issue of the entitlement to exercise jurisdiction over the incident’, which divided Italy and India, could ‘be satisfactorily answered without addressing the question of the immunity of the Marines’ (para 805)? Thus put, the question had to be answered in the negative. As an exception to otherwise established jurisdiction, immunity (if available) would bar India’s exercise of jurisdiction. Whether the exception applied in this case, held the Tribunal, formed ‘an integral part of the Arbitral Tribunal’s task to determine which Party may exercise jurisdiction over the Marines’ (para 808). To provide ‘a complete answer’ to the question the parties brought before it then, the Tribunal had to consider incidentally whether the Marines enjoyed immunity (ibid).

Immunity, while mentioned in neither Article 288 nor in the text of UNCLOS, had crept within the scope of the Tribunal’s jurisdiction as a necessary incidental question. And so the Tribunal could proceed and hold that India had actually violated the immunity of the marines; a topic for another blogpost.