Schatz, Valentin J.

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Incidental jurisdiction in the award in“The ‘Enrica Lexie’ Incident (Italy v.India)” – Part IValentin J. Schatz 2020-07-23T13:00:53On 21 May 2020 the arbitral tribunal constituted under Annex VII of the UnitedNations Convention on the Law of the Sea (UNCLOS) in the The ‘Enrica Lexie’Incident (Italy v. India) rendered its award. While both parties succeeded with someof their (counter-)claims, the Indian Ministry of External Affairs merely took note ofthe award, whereas the Italian Ministry of Foreign Affairs was “pleased”. Pendingreview by the parties with respect to confidential information, on 2 July 2020, thePermanent Court of Arbitration (PCA) published the operative part (dispositif) of theaward. This post is based on the final award as submitted to the Indian SupremeCourt. Out of respect for the confidentiality review of parties and the rules ofprocedure this post will not include a link to the award until such time it is publishedby the PCA.The award is rich in interesting legal issues – substantive and procedural – and itmay be expected that it will attract considerable scholarly attention. However, thepurpose of this post is not to discuss the issues raised in the award in their entirety.Rather, it specifically focuses on the arbitral tribunal’s decision to accept incidentaljurisdiction over Italy’s immunity claim under customary international law. This partof the award was strongly criticized in the dissenting opinion of Judge Patrick L.Robinson (paras. 4-54) and the dissenting and concurring opinion of Dr. PemmarajuSreenivasa Rao (paras. 24-59). It has also already come under scholarly attackelsewhere (here and here).In this context, the award raises at least three important questions: Do UNCLOStribunals have incidental jurisdiction over external issues under Article 288(1)? Ifso, what are the requirements of such incidental jurisdiction? Finally, were theserequirements fulfilled in the case at hand? My analysis is split into two posts, thefirst of which addresses the existence and requirements of incidental jurisdiction ofUNCLOS tribunals based on Article 288(1) UNCLOS and existing jurisprudence. Thesecond post analyzes the approach of the arbitral tribunal Italy v. India to incidentaljurisdiction over the immunity issue against the background of the general doctrine ofincidental jurisdiction presented in the first post.Incidental jurisdiction of UNCLOS tribunals under Article 288(1)As stated by Articles 286 and 288(1) UNCLOS, jurisdiction ratione materiae ofUNCLOS tribunals operating under the compulsory dispute settlement mechanismis limited to disputes concerning the interpretation or application of UNCLOS.Accordingly, the jurisdiction of UNCLOS tribunals is limited to submissions based on- 1 -provisions of UNCLOS and, therefore, excludes claims based on rules external toUNCLOS (e.g., customary international law).However, it is widely accepted that international courts and tribunals can have a(limited) extent of incidental jurisdiction depending on the instrument that grantsthem jurisdiction. In its judgment in the Case Concerning Certain German Interestsin Polish Upper Silesia (Germany v. Poland) (Preliminary Objections), the PermanentCourt of International Justice (PCIJ) famously accepted jurisdiction over theinterpretation of Article 256 of the Treaty of Versailles, which was outside its primaryjurisdiction under the Geneva Convention, but which was a question “preliminary orincidental” to the application of the Geneva Convention (p. 18).The extent of incidental jurisdiction specifically of UNCLOS tribunals underArticle 288(1) UNCLOS remains an intricate issue and few attempts have beenmade to systematically analysze its requirements and limits. A notable exceptionis that of implicated sovereignty issues, which are equally matters of incidentaljurisdiction (addressed below). The arbitral tribunal in Mauritius v. United Kingdomwas the first UNCLOS tribunal to explicitly accept the possibility of incidentaljurisdiction over external issues (para. 220), and its analysis was later accepted bythe arbitral tribunal in Ukraine v. Russia in its award on preliminary objections (paras.193-194).Requirements of incidental jurisdictionThe arbitral tribunal in Mauritius v. United Kingdom defined the requirements forincidental jurisdiction as follows:[W]here a dispute concerns the interpretation or application of [UNCLOS],the jurisdiction of a court or tribunal pursuant to Article 288(1) extendsto making such findings of fact or ancillary determinations of law as arenecessary to resolve the dispute presented to it (para. 220, emphasisadded).Arguably, two main requirements of incidental jurisdiction may be deduced fromthe existing jurisprudence as well as a systematic and teleological interpretation ofArticle 288(1) UNCLOS.The “necessity” requirementFirst, the determination of an external issue must be “necessary” to resolve anUNCLOS dispute that itself falls within the scope of Article 288(1). In order torespect the principle of consent, an exercise of incidental jurisdiction is arguablyonly ever “necessary” where an UNCLOS dispute under Article 288(1) cannot bedecided without a prior determination of a non-UNCLOS issue, rendering the lattera preliminary question (and equally an ‘indispensable issue’). In other words, onlywhere a claim based on a provision of UNCLOS cannot be decided without first, as apreliminary question, making a determination of an external issue, that determinationis “necessary”.- 2 -This is also how the PCIJ appears to have approached the subject in CertainGerman Interests, equating the term “incidental” with “preliminary” (p. 18).Interestingly, while this use of the term “incidental” may seem awkward in the Englishlanguage, coincidentally, the German term “inzident” means “preliminary” (it could bespeculated whether this might have to do with the native language of the president ofthe PCIJ at the time or the fact that Germany was a party in the case).The “ancillarity” requirementSecond, the external issue must arguably be what the arbitral tribunal in Mauritiusv. United Kingdom referred to as “ancillary” to the UNCLOS dispute. Although theterm “ancillary” has a similar meaning as the term “incidental” in English (implyingthat the issue is “minor”), for the reasons stated above, the term “ancillary” ispreferable in order to avoid further terminological confusion. The exact contours ofthis concept have not been clarified so far, but its purpose is to weed out “necessary”determinations of external issues that are not “minor” to the UNCLOS dispute, butin fact “major”. In this respect, the approach in Mauritius v. United Kingdom wasfocused on the characterization of the dispute by establishing the “real issue” in thecase. According to the arbitral tribunal, this required an assessment of “where therelative weight of the dispute lies” (paras. 211 and 229).As the arbitral tribunal in Ukraine v. Russia noted, this test “essentially touches uponthat of how the dispute before it should be characterised (para. 194)”. Indeed, the“ancillarity” requirement is so closely related to the characterization of the disputethat it might be predominantly an additional incentive to make sure the dispute wasindeed properly characterized. For example, the arbitral tribunal in Ukraine v. Russia,when faced with the undoubtedly preliminary (and thus “necessary”) question ofterritorial sovereignty over Crimea in the context of Ukraine’s UNCLOS claims, “theParties’ dispute regarding sovereignty over Crimea is not a minor issue ancillary tothe dispute concerning the interpretation or application of [UNCLOS] (para. 195)”.Preliminary conclusionIncidental jurisdiction in the context of compromissory clauses in subject-specifictreaties is still a fairly opaque concept in international dispute settlement and itis rarely explicitly invoked. While the exact requirements and limits of incidentaljurisdiction must be separately identified for each compromissory clause, thepreconditions developed in the past jurisprudence of arbitral tribunals establishedunder Annex VII of UNCLOS – the way I understand them – could potentiallybe generalized to some extent. The strict “necessity” test proposed here, whichrequires the external determination to constitute a preliminary issue, links thedoctrine of incidental jurisdiction back to the States Parties’ consent granted in thecompromissory clause. The “ancillarity” test provides an additional safeguard torespect the limits of such implicit consent to jurisdiction. Valentin J. Schatz is a research associate and Ph.D. candidate at the Chairof International Law of the Sea and International Environmental Law, Public- 3 -International Law and Public Law at the University of Hamburg and a member of theInstitute for the Law of the Sea and for Maritime Law. Cite as: Valentin J. Schatz, “Incidental jurisdiction in the award in The‘Enrica Lexie’ Incident (Italy v. India): Part I”, Völkerrechtsblog, 23 July2020.- 4 -

Incidental jurisdiction in the award in “The ‘Enrica Lexie’ Incident (Italy v. India)”: Part I

Incidental jurisdiction in the award in“The ‘Enrica Lexie’ Incident (Italy v.India)” – Part IIValentin J. Schatz 2020-07-24T09:00:04After having addressed the existence, requirements and limits of incidentaljurisdiction of UNCLOS tribunals under Article 288(1) UNCLOS in the first post, thispost turns to the approach taken by the arbitral award in Italy v. India.Facts of the caseTo briefly recapitulate, the case concerned an incident that occurred on 15 February2012 in India’s Exclusive Economic Zone (EEZ). Two armed Italian Navy marinesthat belonged to a vessel protection detachment on board the privately owned andoperated Italian flagged oil tanker Enrica Lexie fired shots at the Indian flaggedfishing vessel St. Antony, killing two Indian fishermen (paras. 79-117). Indianauthorities subsequently directed the Enrica Lexie to the Indian port of Kochi and,thereafter, exercised criminal jurisdiction over the two Italian marines in relationto the killing of the two Indian fishermen (paras. 118-193), as did Italy in its owninvestigation and proceedings (paras. 194-216).The arbitral tribunal’s characterization of the disputeThe arbitral tribunal characterized the overall dispute in the following terms:“Having analysed and established the nature of the dispute between theParties in the present proceedings, the Arbitral Tribunal concludes thatthe Parties’ dispute is appropriately characterised as a disagreement asto which State is entitled to exercise jurisdiction over the incident of 15February 2012 involving the ‘Enrica Lexie’ and the ‘St. Antony’, which raisesquestions under several provisions of the Convention, including Articles 56,58, 59, 87, 92, 97, 100, and 300, the interpretation or application of whichthe Parties have different views. The dispute may raise, but is not limited to,the question of immunity of the Marines (para. 243; emphasis added).”However, it may be doubted, as Judge Robinson did in his dissent (paras. 4-24),that the arbitral tribunal properly characterized the dispute. Clearly, the immunityissue formed part of the overall dispute of the parties, but it was the tribunal’s taskto identify to what extent that overall dispute fell within the scope of Article 288(1)UNCLOS. As Judge Robinson persuasively argued, the “immunity of the marinesis […] a core element of the dispute; it is the real issue in the dispute betweenthe Parties (para. 29)”. Indeed, based on Italy’s own submissions, the only linkbetween UNCLOS and the immunity issue would have been a potential renvoi to the- 1 -customary international law of immunity of State officials in the UNCLOS provisionsinvoked by Italy. In this respect, Italy’s final submission was:“By asserting and continuing to exercise its criminal jurisdiction over Chief MasterSergeant Massimiliano Latorre and Sergeant Salvatore Girone, India is in violationof its obligation to respect the immunity of the Marines as Italian State officialsexercising official functions, in breach of Articles 2(3), 56(2), 58(2) and 100 ofUNCLOS (para. 75; emphasis added).”Italy’s unsuccessful reliance on alleged renvoi-provisions in UNCLOSHowever, the arbitral tribunal found all provisions invoked by Italy to be inapplicable.It considered that Articles 2(3), 56(2) and 58(2) of UNCLOS, which concern the EEZor territorial sea, were not applicable because India’s enforcement measures weretaken in India’s internal waters and territory (para. 798). It did not take a positionon whether (1) the provisions invoked by Italy do indeed contain a renvoi and/or (2)whether they constitute obligations to comply with (or to have due regard to) externalrules falling within the scope of the alleged renvoi (cf. the expansive jurisprudencein Mauritius v. United Kingdom (para. 503), rejected by Judge Robinson in an obiterdictum in his dissenting opinion (para. 31)).Italy had also invoked Articles 297(1), 95, 96, and 100 UNCLOS, but theseprovisions were equally found by the arbitral tribunal to be inapplicable (paras.799-802). Thus deprived of applicable provisions in UNCLOS that could (allegedly)provide a sufficiently strong jurisdictional link under Article 288(1), the arbitraltribunal acknowledged that UNCLOS “may not provide a basis for entertaining anindependent immunity claim under general international law (para. 809; emphasisadded)”. From this moment, the immunity issue did no longer form part of theUNCLOS dispute as the arbitral tribunal itself severed the only potential link betweenthe two. This was not, however, acknowledged by the arbitral tribunal.The arbitral tribunal’s acceptance of incidental jurisdiction over the immunityissueNext, the arbitral tribunal turned to the question of incidental jurisdiction. Curiously,however, as noted by Judge Robinson in his dissent (paras. 42-49), the tribunal didnot state what it considered the requirements of incidental jurisdiction to be. Despitethe fact that two of the three arbitrators of the majority, Judges Golitsyn and Paik, aresimultaneously arbitrator and president of the tribunal (in reverse order) in Ukrainev. Russia, the award contains no reference to the findings of that tribunal (whichessentially followed the methodology adopted in Mauritius v. United Kingdom) or thetribunal in Mauritius v. United Kingdom on questions of incidental jurisdiction.Instead, the arbitral tribunal simply stated that the dispute “could [not] besatisfactorily answered without addressing the question of the immunity of theMarines (para. 805).” In its view, the arbitral tribunal “could not provide a completeanswer to the question as to which Party may exercise jurisdiction withoutincidentally examining whether the Marines enjoy immunity (para. 808)”. This wasbecause “[i]mmunity from jurisdiction, by definition, operates as an exception to an- 2 -otherwise-existing right to exercise jurisdiction” and because the question “[w]hetherthat exception applies in the present case is a question that forms an integral partof the Arbitral Tribunal’s task to determine which Party may exercise jurisdictionover the Marines (para. 808)”. On this basis, the arbitral tribunal concluded that its“competence extends to the determination of the issue of immunity of the Marinesthat necessarily arises as an incidental question in the application of [UNCLOS](para. 809; emphasis added)”.Was the immunity issue “incidental” to the UNCLOS dispute?Applying the “necessity” requirement as introduced in the first post, it is quiteevident that the immunity issue was nota preliminary question in the interpretationor application of any of Italy’s claims based on UNCLOS. As mentioned, after thearbitral tribunal had rejected Italy’s claims based on (alleged) renvoi provisions inUNCLOS, none of the remaining provisions invoked required a prior determinationof the immunity issue. Therefore, the immunity issue no longer formed part of theUNCLOS dispute.What remained was a dispute as to whether Italy or India (or both) had jurisdictionunder UNCLOS over the incident, requiring an interpretation and application of,inter alia, Articles 92 and 97 UNCLOS. However, prior to turning to the immunityissue, the arbitral tribunal found that Italy and India had concurrent jurisdiction underArticle 92(1) UNCLOS over the incident (paras. 363-370). This finding evidently didnot require, as a preliminary question, a determination that the Italian marines did notenjoy immunity from criminal jurisdiction. Indeed, as the International Court of Justice(ICJ) stated in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congov. Belgium), there is an important distinction between jurisdiction and immunityfrom jurisdiction: “jurisdiction does not imply absence of immunity, while absence ofimmunity does not imply jurisdiction (para. 59)”. How, then, could a determination ofthe immunity issue have been “necessary” for the determination of the question ofjurisdiction under UNCLOS?Applying the “ancillarity” requirement, the weight of the immunity dispute within theoverall dispute was – as already stated in the context of the characterization of thedispute – arguably such that it would probably not have been “minor” to the UNCLOSdispute, but itself constituted a separate “real issue” falling outside the scope ofincidental jurisdiction under Article 288(1).Concluding remarksRegrettably, the award does not address the requirements for incidental jurisdictionof international courts and tribunals operating under a compromissory clausegenerally, nor does it place these general requirements in the specific contextof Part XV of UNCLOS and previous jurisprudence. It seems more convincingto consider that the immunity issue was not incidental (neither “necessary” nor“ancillary”) to the UNCLOS dispute.It is true that the ICJ very recently considered in the ICAO Council Cases (here andhere) that incidental jurisdiction of dispute settlement bodies with limited subject-- 3 -matter jurisdiction may extend to defences based on countermeasures where sucha determination is indispensable to a decision of a claim for which it has jurisdiction.However, the ICJ’s approach, if one considers it persuasive, is still more restrictivethan that of the arbitral tribunal in India v. Italy. Lawful countermeasures maypreclude State responsibility under rules of the treaty over which jurisdiction exists(in the present case UNCLOS), whereas the question of immunity at issue in Indiav. Italy was not indispensable to the merits of Italy’s claims concerning violations ofprovisions of UNCLOS (notably Articles 92, 97 and 100). It was an entirely separateissue that concerned the violation of the customary international law of immunity ofstate officials as primary obligations.In conclusion, the approach taken by the majority reflects a very broadunderstanding of the extent of incidental jurisdiction of UNCLOS tribunals thatis arguably at odds with the extent of consent to jurisdiction granted underArticle 288(1). If it were to form the starting point of a new line of jurisprudence, itshould be hoped that it is restricted to defenses such as immunity that are at leastclosely related to the UNCLOS provisions at issue. Valentin J. Schatz is a research associate and Ph.D. candidate at the Chairof International Law of the Sea and International Environmental Law, PublicInternational Law and Public Law at the University of Hamburg and a member of theInstitute for the Law of the Sea and for Maritime Law. Cite as: Valentin J. Schatz, “Incidental jurisdiction in the award in The‘Enrica Lexie’ Incident (Italy v. India): Part II”, 24 July 2020.- 4 -

Incidental jurisdiction in the award in “The ‘Enrica Lexie’ Incident (Italy v. India)”: Part II

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Incidental jurisdiction in the award in “The ‘Enrica Lexie’ Incident (Italy v. India)”: Part II

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