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ENRICA LEXIE – PCA’S MISS IN DEFINING 'IMMUNITY OF GOVERNMENT PERSONNEL ON COMMERCIAL VESSELS'

- Mohit Khubchandani


Keywords – maritime arbitration, functional immunity, state- state arbitration, PCA


Introduction:


Whilst the Permanent Court of Arbitration (“PCA”), established in 1899 happens to be one of the oldest international legal forums, in these 120 years it has only adjudicated 14 cases within the realm of power vested upon it relating to Annexure-VII (Arbitration) read with Article 287 (Choice of Procedure), once the United Nations Convention on the Law of Sea, 1982 ("UNCLOS - III") came into force. Therefore, the jurisprudence building process of the UNCLOS by way of such decisions (though not binding on other disputes) is at a nascent stage.


With this backdrop, the PCA recently decided the Enrica Lexie case in which it to the dismay of many has rendered a decision that offers a piecemeal victory for both the parties in the Enrica Lexie incident of 2012 between Italy v. India. It concerned two Italian marines, who killed two Indian fishermen (on a boat named St. Antony) on Indian waters, suspecting them of being pirates.


As someone who was acquainted with the preparatory stages of this case, instead of giving my partisan critique of the merits of the award, I would like to shed light on a longstanding issue, which could have, or rather should have been decided by the tribunal as well. Further, it would have contributed to the evolution of maritime arbitration and the UNCLOS – i.e. ‘the issue of functional immunity onboard private commercial vessels’. This endeavour of course, comes with the caveat that the full-award has yet not been released on PCA’s website, and I would sincerely seek for forbearance from the readers for any resultant inconsistencies that might appear in this piece if and when the full award is published.


The Award: Leaving us guessing whose liability it really was..


This dispute had a chequered history at the municipal courts in India before finally the International Tribunal for the Law of Sea (“ITLOS”) in 2015 passed a provisional order and directed the parties to maintain status quo and suspend all such proceedings until such time that the PCA decided the fate of this dispute. The provisional orders of the PCA maintained the same direction until its recent decision on 2nd July, 2020.


In its award, while on one hand, the PCA narrowly declared (3:2 majority) that the marines enjoy immunity from prosecution in India, it albeit in juxtaposition also held that:

“As a result of the breach by Italy of Article 87, para 1, sub-para (a), and Article 90 of the Convention, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property (including to the “St. Antony”) and moral harm suffered by the captain and other crew members of the “St. Antony”, which by its nature cannot be made good through restitution.”


In addition, the PCA has dismissed Italy’s plea that India’s claim in its Exclusive Economic zone under Article 56 of UNCLOS (EEZ – which is 24 nautical miles to 200 n.m.) does not sustain. The tribunal has also rejected Italy’s submission that India forced Enrica Lexie to change its navigational course towards India’s territorial waters; which in fact is an admission that the incident indeed occurred at 20.5 nautical miles from India’s coast.


Since it is undisputed that the incident occurred within India’s territorial waters (whether intentionally or not), it was only functional immunity that could save the marines from prosecution and the PCA did decide that in the favour of the marines. While I feel that it is not my place to comment on ‘why’ the Court arrived at this finding, I can, in the foregoing section, suggest ‘how’ the Court could have lucidly defined functional immunity in this context.


Functional immunity of personnel aboard private vessels: The missed bone of contention


Since the incident occurred in India’s territorial waters, the determination of functional immunity of the marines aboard Enrica Lexie – “a private vessel” was the most contentious issue. The pleadings of the parties and the various orders passed by the PCA and even the ITLOS preceding this decision are a testament to this.

  • The ITLOS in the Order of 24th August 2015 stated that “the question of the status of the two Marines relates to the issue of jurisdiction and cannot be decided by the Tribunal at the stage of provisional measures” (113).

  • The same conclusion on the ‘related question’ is adopted in the Annex VII Arbitral Tribunal’s Order of 24th September 2016, where it was stated that “the decision as to which of the States may exercise jurisdiction, and the related question of Sergeant Girone’s entitlement to immunity, remain to be decided when the Arbitral Tribunal considers the merits of the case” (103).

It was explicit from the conduct and pleadings of the parties that they wished for the tribunal to lay down a rule regarding functional immunity of the marines, especially in the circumstances where private vessels were concerned. Yet, it is incomprehensible as to why the tribunal did not engage in this subject while only simply declaring that the marines had functional immunity.


Status of immunity as argued by the parties: UNCLOS v. Customary International Law


The views of the parties about functional immunity are evident from their contrasting attitudes on the applicability of rules of customary international law during the proceedings. During the proceedings before the ITLOS, India adduced an argument, that Articles 95 and 96 of the UNCLOS refer to immunity of warships and government ships operating for non-commercial purposes and since the Italian marines were on board a merchant vessel, “the Government of India was not obliged to recognize their claim of immunity under the Convention or any other principle of international law.


During the oral proceedings as well, India’s Agent Mr. G. Balasubramaniam also posed a question to the tribunal: Is there any provision granting Italy exclusive jurisdiction in circumstances where two human beings located on an Indian boat were killed as a result of actions coming from individuals on board a commercial vessel?


On the other hand, Italy was of the view that the status of immunity of the marines could have been decided by invoking rules of Customary International Law, which is permissible under Article 293 of the UNCLOS.

After the decision, Former Chairman and Member of the United Nations International Law Commission, Mr. Narinder Singh, who also held several positions at the Ministry of External Affairs in India was also quoted saying: the key issue during the bilateral discussions between Italy and India had been about immunity from prosecution for the Italian marines. UNCLOS speaks of immunity in case of warships and government-controlled vessels, but it had remained silent on the issue of government personnel stations aboard private commercial vessels for anti-piracy operations.


The two dissents by Judge Rao and Robinson: Immunity in a commercial transaction?


In paragraph 80 of his dissent, Judge Rao said: “The conclusion reached by the tribunal on the merits of the Italian claim concerning the immunity of the marines does not fit well, like a square peg in a round hole, with the well-established principle under international law that government officials enjoy immunity from foreign jurisdiction for official acts performed. This is because the service rendered by the marines was part of an agreement amounting to a commercial contract


Judge Patrick Robinson also categorically held in his dissent that “The presence of the marines on the vessel is so intertwined with the essentially commercial transaction between the Italian government and the shipowners that it is not possible to separate the one from the other. When they fired the shots, they did so against the background and on the basis of a commercial transaction in which the government of Italy received from the shipowners the sum of 467 euros per person per day, amounting to 14,010 euros for 30 days of service and the shipowners were obliged to accept onerous obligations in order to protect the government of Italy from claims arising from the conduct of the marines. The shooting that led to the death of the two Indian fishermen was by its nature a commercial act carried out in defence of the interests of the shipowners. The services provided by the marines to the shipowners cannot attract immunity in the circumstances of this case.”


Whether or not I agree with the above observations in the two dissents is neither within the purview nor the aim of this piece. The endeavour is to highlight that the PCA had an opportunity to more lucidly decide this debate.


The scant legal regime governing the status of private vessels vis-à-vis governmental function


There is scant literature on this subject, for which reason the tribunal could have settled the debate. Article 29 of the UNCLOS defines a warship as a ship belonging to the armed forces of a state. Under this definition, a ship doesn’t need to be armed to be considered a warship. However, Article 32 reaffirms the immunities of warships and other government ships operating for ‘non-commercial purposes’.

For whatever its worth, scant state practice by the U.S. is worthy of a mention here and is consistent with the understanding of Article 32. The Military Sealift Command (“MSC”) is the provider of ocean transportation for the U.S. Navy and the Department of Defense (“DoD”). It is a critical element of U.S. maritime security and supports many naval operations. MSC vessels include privately-owned vessels under time charter to MSC with the Afloat Prepositioned Force (“APF”).


Even other conventions, such as the International Convention on Salvage, 1989, entered into force just seven years after UNCLOS – III is consistent with it and states as under:

Article 4 - State-owned vessels of International Convention on Salvage, 1989

1. Without prejudice to article 5, this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognized principles of international law unless that State decides otherwise.” (Emphasis Supplied)

These positions get even more convoluted when government officials are stationed on them.


Conclusion


The preceding discussion at the very least makes it abundantly clear that the PCA had the perfect reason, need and demand from not one, but both the parties to determine the said question of functional immunity in the specific context being discussed. It should have at the very least justified ‘why’ or ‘why not’ customary international law is ‘applicable or inapplicable’; ‘consistent or inconsistent’; ‘existent or non-existent’ in relation to UNCLOS in the present case. It could have, at the very least directed for further studies on this notion by the International Law Commission or by the law of the Sea Working Group.


In conclusion, I take a cue from Judge Robinson’s dissent and the U.S. practice. I feel that it was incumbent upon the tribunal to clarify the commercial or non-commercial nature of the relationship between the two marines aboard Enrica Lexie and the vessel. Such a relationship could have been appended in the form of an exception, explanation or another article in UNCLOS - III. This could have led to an evolution of the UNCLOS regime and by and large international commercial maritime arbitrations.


This decision has left both the parties in partial dissatisfaction. Public International Law scholars are second-guessing notions of maritime sovereignty and immunity. Tremors might have also been felt by private shipping companies and maritime arbitrators who might have become circumspect about the safety of private vessels and their relationship with government security personnel on board. In the words of Judge Rao, it does feel like a square peg in a round hole.



Mr. Mohit Khubchandani is an International Disputes Resolution Attorney, and holds an LLM from the prestigious Stanford Law School. He is an incoming Judicial Fellow at the International Court of Justice. He currently works as a Research Assistant at the United Nations International Law Commission. He was acquainted with the preparatory stages of the Enrica Lexie dispute while working as an Associate at the Office of the Attorney General for the Republic of India from 2015 - 2017.


Preferred Method of Citation – Mohit Khubchandani, ‘PCA’s Enrica Lexie Award - A missed opportunity to define ‘functional immunity of government personnel on private commercial vessels’ (ICAR, 25 July 2020) < insert link of the accessed article here>.



The views expressed in this article are strictly personal and must not be construed as those of the individuals and organisations the author works with or has worked with in the past.


The views are also based on the author’s sole understanding derived from the ‘Publication of the Operative Part (Dispositif) of the Arbitral Tribunal’s Awarddated 2nd July, 2020 by the Permanent Court of Arbitration’s website. The full award is yet not available in the public domain, therefore, he requests for forbearance from inconsistencies, if any that might appear if and when the full award is released for public.

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