After an eight-year-long legally and politically controversial voyage in the Enrica Lexie incident (The Italian Republic v. The Republic Of India), the Permanent Court of Arbitration finally settled the dispute on 21st May 2020. The case was concerned with an incident that occurred on 15th February 2012 in the contiguous zone where two Indian fishermen aboard the “St. Antony” (Indian vessel) were shot dead by Italian marines aboard the “Enrica Lexie” (Italian flagged vessel) and the subsequent criminal prosecution of the Marines before Indian courts. Objecting to India’s jurisdiction over the incident, Italy finally instituted proceedings before the Permanent Court of Arbitration (the Tribunal) on 26th June 2015 under Annex VII of the United Nations Convention on the Law of the Sea (the Convention). The Tribunal held that Italy violated India’s freedom of navigation and caused the loss of life, physical harm, material damage to property (including to the “St. Antony”), and moral harm to the captain and other crew members. Therefore, India was held to be entitled to payment of compensation for the same. However, it was decided that India could not exercise criminal jurisdiction over the Italian marines as they were entitled to functional immunity for the acts they committed on 15th February 2012. Although many of the issues were decided in favour of India, the granting of functional immunity to the marines came as a major setback because it effectively precluded Indian criminal jurisdiction to prosecute the accused marines before the Indian courts and to provide justice for the victims. Although the Tribunal admitted its jurisdictional incapacity to entertain the claim of the marines’ immunity as a principal issue under Article 288 (1) of the Convention (para. 809), it nevertheless extended its jurisdiction by considering the issue of the marines’ immunity as an “incidental issue” that was necessary to determine which Party was entitled to exercise jurisdiction in the case. However, this opened the door to academic discussion on whether the Tribunal failed to justify its jurisdictional capacity to adjudicate the issue of Marines’ immunity in the Arbitration Award.
The present article analyses the relevant provisions of the Convention backed by practice regarding its application and scholarly writings to verify the jurisdictional capacity of the Tribunal to entertain the issue of the marines’ functional immunity in the Enrica Lexie case. It will first establish that the issue of the marines’ immunity was not an “incidental issue” but rather a “principal issue”. Secondly, even if the Tribunal considered the issue of the marines’ immunity as an incidental issue, it was barred by Article 288 (1) of the Convention from adjudicating the incidental issue.
The Marines’ Immunity Was Not an Incidental Issue
The Tribunal in the South China Sea Arbitration case held that there must be an objective approach to “isolate the real issue” and “identify the object of the claim”. In the present matter, a precise question was asked before the Tribunal, namely whether the marines had functional immunity from Indian criminal jurisdiction. Accordingly, this question should be characterised as a “real or principal issue” and not an incidental one, as also confirmed by Judge Patrick Robinson in his dissenting opinion. Even though there is a link between the issue of jurisdiction and immunity in the Enrica Lexie case, that in itself does not make the latter an incidental issue to the former. Reliance can again be placed on the South China Sea Arbitration case where the Tribunal held that linked issues do not imply that both will ultimately fall under the Tribunal’s jurisdiction (para. 152). Valentin J. Schatz argues that in order to respect the principle of consent, the Tribunal is required to verify the “necessity” of the determination of an external issue to resolve a dispute falling under Article 288 (1) of the Convention. Thus, he submits that the Tribunal in the Enrica Lexie case failed to justify how the determination of the issue of the marines’ immunity was necessary to determine the principal claims falling under the scope of the Convention, with such a failure eventually unreasonably overstretching India’s consent to the Tribunal jurisdiction over the dispute.
Further, Judge Robinson and Judge Dr P.S. Rao also dissented to the majority view regarding jurisdiction over the issue of functional immunity of the marines. Judge Robinson argues that if the question of the marines’ immunity does not concern the interpretation or application of the Convention, any pronouncement on that question would be a breach of India’s consent to the jurisdiction of the Tribunal. Moreover, it is pertinent to note that the presence of Articles 95 and 96 indicates the intention of the drafters of the Convention to restrict the application of immunity only in cases satisfying these provisions and not otherwise. Therefore, since the inapplicability of Article 95 and Article 96 was not disputed among the arbitrators, Italy’s claim of functional immunity of the marines deserved to be rejected in totality.
The Tribunal’s Jurisdiction to Adjudicate Only Issues of Principal Norms
Even if the Tribunal viewed the immunity of the marines as an incidental issue, it would have been barred by Article 288 (1) of the Convention from exercising jurisdiction over any question that was not inseverable from the principal issue. Article 288 (1) of the Convention provides jurisdiction to the Tribunal over any dispute concerning the interpretation or application of the Convention. It expressly restricts the jurisdiction of the Tribunal to only those cases where the interpretation or application of any provision of the Convention is involved. It is noted that the Convention nowhere mentions anything about “sovereign or functional immunity” as claimed by Italy in a precise format and that consequently, the Tribunal should have refrained from exercising jurisdiction over the issue of functional immunity of the marines.
The Tribunal rightly rejected Italy’s claim of immunity of the marines under Articles 95 and 96 of the Convention—the former deals with the immunity of warships and later with the immunity of ships owned or operated by a State and exclusively dedicated to the government “non-commercial service”—on the grounds that none of them were applicable in the case. The Tribunal rightly admitted its incapacity as per “principal norms” provided in Article 288 (1) of the Convention to determine the issue of the marines’ immunity. Nevertheless, it extended its jurisdiction by considering the issue of immunity as an incidental issue. This raises the question of whether the issue of marines’ immunity was inseverable from other principal issues involved in the dispute.
Lorand Bartels has written that “principal norms” are applied by the tribunals to determine their authority under the relevant jurisdictional instrument. On the contrary, “incidental norms” are used to make additional determinations that are relevant only to determine the principal issues. The identification of whether a norm is “principal” or “incidental” depends objectively on the precise question that has arisen before the Tribunal. He further submits that Article 288 (1) of the Convention, which is a jurisdiction clause, sets out only “principal norms” which act as lex specialis and eventually preclude the application of any other norm that is not a part of the said clause for purposes of making a principal determination (p. 126-129). In the context of Enrica Lexie case, the Tribunal had to determine its jurisdiction under Article 288 (1) of the Convention; therefore, it was allowed to adjudicate only “principal norms”. Any deviation from the same is considered as the violation of the principle of lex specialis.
Moreover, by extending jurisdiction over the issue of immunity, the Tribunal went against its own ruling in the Chagos Marine Protected Area Arbitration case where it explicitly held that where the “real issue” and “object of the claim” are not concerned with the interpretation or application of the Convention, merely an incidental connection with the principal issue would be insufficient to invoke the jurisdiction clause of the Tribunal under Article 288 (1) of the Convention. Although the Tribunal held that Article 297 (1) of the Convention expanded its jurisdiction beyond what flows from Article 288 (1) alone, such expansion was restricted to cases where Article 58 was applicable. In the present case, the Tribunal itself rejected the application of Article 58 and Article 297 (1) of the Convention. Therefore, there remained no cogent reason for the Tribunal to extend its jurisdiction over the issue of the marines’ immunity.
Although the Award is likely to improve the diplomatic relations between India and Italy that were jeopardised due to the Enrica Lexie incident for around eight years, losing criminal jurisdiction to prosecute the marines before the Indian courts came as a major legal defeat for India, the victims, and their families. The present article has explained that the Tribunal did not have the jurisdictional capacity to entertain the issue of the marines’ immunity in the Enrica Lexie case. It is unfortunate to see that the decision of the Tribunal, which itself arguably lacked jurisdiction, effectively undermined India’s own criminal jurisdiction. The incident of 15th February 2012 caused grave injury to the victims and their families, yet they remained removed from adequate justice. India may negotiate a reasonable compensation for the victims and their families; however, it is a well-settled principle under Indian law that a mere award of compensation is not complete or adequate justice in a criminal case unless the guilty are punished by the state. Further, this Award also sets a dangerous precedent that may undermine accountability for the harm caused against fishermen who frequently visit the contiguous zone or Exclusive Economic Zone to earn their livelihood.