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

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In Part I of this post, we discussed how the Arbitral Tribunal, in its recently-released award in the Enrica Lexie case, approached the question of incidental jurisdiction over questions of immunity. While the Tribunal’s jurisdiction, under Article 288 UNCLOS, was limited to ‘dispute[s] concerning the interpretation or application of th[e] [Law of the Sea] Convention’ (which does not explicitly regulate questions of immunity), the Tribunal felt that it had to address the matter: As the real dispute was whether Italy and India could exercise jurisdiction over the Enrica Lexie incident, immunity ‘necessarily arises as an incidental question in the application of the Convention’ (para 809). In Part II of the post, we situate the Tribunal‘s approach and compare it to that of the ICJ, which in two recent cases has had to grapple with very similar issues.

Compare & Contrast: Jurisdiction over Questions of Immunity in Recent ICJ Jurisprudence

The Enrica Lexie Tribunal’s decision concerning its incidental jurisdiction over the immunity issue has not escaped commentators (see notably here and here), who have raised valid concerns: Was the dispute as a whole really within the Tribunal’s jurisdiction (a point also criticized in Judge Robinson’s dissenting opinion)? Can the immunity issue be considered an ‘incidental question’ even if it was determinative – or should incidental jurisdiction always be limited to ‘ancillary’, ‘lesser’ matters? (Probably not, as the example of responsibility suggests — a typical incidental matter that tends to be determinative.) And shouldn’t the Tribunal have elaborated more on the necessary requirements for its jurisdiction to encompass such incidental questions? On these and other aspects, the discussion seems to have begun.

Our contribution to it is in the form of a ‘compare and contrast’ exercise. In the remainder of this post, we outline commonalities and differences between the Tribunal’s approach in Enrica Lexie, and the approach adopted in two recent ICJ judgments in Immunities and Criminal Proceedings and Certain Iranian Assetsboth of them discussed only briefly in the Enrica Lexie award, and not so far addressed by its commentators. We do so because in both cases, the ICJ — like the Tribunal in Enrica Lexie — had to interpret the scope of a compromissory clause. And more importantly, because the ICJ faced a very similar issue: applicants (like Italy in Enrica Lexie) invoked violations of immunity in proceedings based on compromissory clauses, and defendants (like India in Enrica Lexie) argued that they fell outside the Court’s jurisdiction.

In Immunities and Criminal Proceedings (Equatorial Guinea v France), the matter arose under the Palermo Convention, which seeks to facilitate cooperation in the fight against transnational organized crime, notably by criminalization and establishment of jurisdiction over the relevant offences in the domestic legal order of States Parties. According to Equatorial Guinea, French proceedings (inter alia against Equatorial Guineas’s Second Vice-President) violated immunity rules. But were these immunities safeguarded by the Palermo Convention, as Equatorial Guinea argued? In particular, were immunities incorporated in the Convention’s requirement that States Parties ‘carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States’ (Article 4(1))? The ICJ – over the dissent of Judges Xue, Robinson, Sebutinde and Kateka – held they were not: hence, a self-standing claim for violation of immunity was outside the scope of Article 35 of the Palermo Convention (paras 84-102).

In Certain Iranian Assets (Iran v US), Iran challenged US sanctions, which in its view violated the immunities of Iran’s Central Bank (Bank Markazi) and other State entities and thereby breached various provisions of the US-Iran Treaty of Amity. While that Treaty was largely silent on the matter, in Iran’s argument, certain provisions of the Treaty incorporated the rules on immunity under general international law, while others in fact required observance of Iran’s immunity (para 51). The Court was not convinced: looking at each one of the impugned provisions, it did not accept that the Treaty of Amity either incorporated immunities by reference or that any of the provisions invoked required compliance with them. For example, examining Article XI(4) the Court said that for a treaty provision ‘to leave intact’ the immunities under customary international law does not mean that it ‘transform[s] compliance with [them] into a treaty obligation’ (para 65). Or, looking at Article III(2), the ICJ found that to constitute a violation of that provision, the ‘breach of international law on immunities would have to be capable of having some impact on compliance with the rights guaranteed under Article III, paragraph 2’. But according to the Court’s majority this wasn’t the case.

Both decisions have been discussed in some detail elsewhere, including on this blog. Clearly, they did not raise exactly the same issue as the Enrica Lexie case — and, obviously , they resulted in a different outcome, with the ICJ refusing to exercise jurisdiction over the immunity question whereas the Tribunal in Enrica Lexie addressed it. So what are the main takeaways when we  ‘compare and contrast’ the three decisions? For our purposes, three points seem most relevant.

First, the ICJ approached the question of jurisdiction in a direct manner: it asked whether immunity came within the scope ratione materiae of a particular compromissory clause. This may seem straightforward enough — but it does mark a difference to the Tribunal’s approach in Enrica Lexie. Whereas the latter first characterised the dispute as a whole (step 1), and then inquired whether it had jurisdiction over the immunity claim (step 2), the ICJ was content to tackle the question in one step. This may have affected the outcome: the Tribunal used its first step to clarify that, as a whole, the Enrica Lexie dispute was one about competing claims to the exercise of jurisdiction. From the outset, the immunity argument thus formed part of a broader dispute – and as this broader dispute was considered to be ‘caught’ by Article 288 UNCLOS, so was (eventually) the question of immunity, which appeared as an ‘incidental question’. By contrast, the ICJ in Immunities and Criminal Proceedings treated the immunity claim, not as incidental to a broader dispute, but as separate and self-standing and sought to determine whether it could establish its jurisdiction under the compromissory clause (same in Certain Iranian Assets). (It is worth noting that in at least two of the proceedings, the majority‘s approach was criticised. The joint dissent in Immunities and Criminal Proceedings noted that ‘by dividing the dispute into various claims, the Court has not discharged its obligation to objectively determine the dispute by isolating the real issue’. Conversely, Judge Robinson in Enrica Lexie criticised the Tribunal’s majority in Enrica Lexie to have ‘packaged’ the important immunity matter into a broader dispute.)

Second, in both ICJ judgments, the focus was firmly on individual treaty clauses whose violation was alleged. The ICJ’s concern was whether these provisions — Article 4 of the Palermo Convention; various clauses of the US-Iran Treaty of Amity — implicated questions of immunity, by renvoi or as a necessary element of a judicial finding. Compared to this ‘granular’ engagement, the Tribunal’s approach in Enrica Lexie is rather global. Individual provisions (which might have implicated immunity) were not getting Italy very far, as they did not apply in the case at hand. Instead, the issue of immunity was introduced by the Tribunal itself as an important coda, prompted by the most open of questions (whether ‘there is any other justification for it to exercise jurisdiction over the issue of the immunity of the Marines’, para 803) and addressed as part of an extremely broad holding (‘the Arbitral Tribunal’s competence extends to the determination of [an] issue … that necessarily arises as an incidental question in the application of the Convention’, para 809). In neither of its judgments, did the ICJ put forward such a broad, general test, let alone as a coda: claims had to be assessed on the basis of particular treaty provisions.

Third, and relatedly, the Tribunal’s approach in Enrica Lexie not only approached immunity as part of a broader dispute, but it framed this dispute in a particular manner. Whereas immunity had a clear bearing on the conventions under consideration in all three cases, only in Enrica Lexie did the Tribunal approach it after having first made a finding on the parties’ jurisdiction. More specifically, as the Tribunal had affirmed India’s right to exercise concurrent jurisdiction over the incident, the question of immunity gained particular significance: had the Tribunal bypassed the question of immunity, India would have walked away with a binding award affirming its jurisdiction. This may have been a factor explaining the Tribunal‘s approach — but at the same time, it shows the power of framing disputes. India’s ‘victory’ in establishing concurrent jurisdiction made it easier for Italy’s immunity claim to be accepted as an incidental question. This was different in the ICJ cases were the Court had to plainly rule directly on immunity.

All this shows that what is captured by a compromissory clause and what is considered an incidental question falling within its jurisdiction may turn on how a court or tribunal characterises the dispute submitted to it. On the point of principle agreement seems to exist: an issue not covered in a compromissory clause cannot be litigated as an independent claim; but it can be addressed if it appears to be a necessary step in the resolution of a broader dispute. It is the application of that principle to a particular case that causes problems, and the brief review of the Enrica Lexie, Iranian Assets and Immunities and Criminal Proceedings illustrates the breadth of possibilities and the significance of judicial framing in that respect.

Concluding Thoughts

8 1/2 years ago, two shots were fired off Kerala, causing the loss of two lives. Reactions so far suggest that, while Italy seems rather more pleased with the outcome of the proceedings than India, neither State has shown any inclination to ignore the award. Based on available information, as a dispute resolution exercise, the arbitral process seems to have succeeded.

The award marking the final stage of the process is rich in detail and will keep case-obsessed international lawyers — whether Law of the Sea specialists or of a more generalist persuasion — busy for a while. In our view, the Tribunal’s findings on incidental jurisdiction, while technical and complex, are among the most significant of the award — significant not only because they mark the third decision, in the course of a few years, that turned on jurisdiction over immunity matters, but also because the Tribunal seemed to leave significant room for jurisdiction over incidental matters.

The Tribunal’s approach was likely motivated by a desire to offer a meaningful response to an important question argued by the parties. Perhaps the Tribunal was concerned that by bypassing immunity, it would have rendered a truncated judgment that would not give a ‘satisfactory answer’ (cf para 805). This approach led it to ‘open the gates’ (as per Papadaki) of Article 288 UNCLOS at least a bit, so that immunity — clothed as an exception precluding the exercise of jurisdiction — could sneak in. 

Our concern here was to evaluate whether in opening the gates to immunity , the Tribunal in Enrica Lexie overstretched the parties’ consent to jurisdiction under Article 288 UNCLOS. Rather, our discussion shows that it approached the gatekeeping role of the compromissory clause rather differently than the ICJ in the recent Iranian Assets and Immunities and Criminal Proceedings cases — and that it did so by framing the dispute submitted to it in a particular way, which made it more likely for Italy to obtain where Iran and Equatorial Guinea did not.

That the three cases led to different outcomes need not necessarily be viewed as cause for concern: perhaps they simply illustrate the basic truth that, in international litigation, much depends on how parties, courts, and tribunals frame a dispute, especially one that straddles the dividing line of a compromissory clause. However, we would hope that, in approaching  treaty-based jurisdiction (whether under Article 288 UNCLOS, Article 35 of the Palermo Convention, Article XXI of the Treaty of Amity, or any other of the hundreds of compromissory clauses), courts and tribunals would move in broadly similar ways. The contrast between the Enrica Lexie Tribunal on the one hand, and the ICJ on the other, suggests that more discussion is needed to narrow down the scope of plausible approaches. To that end, rigorous academic analysis can make an important contribution.

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