International arbitration—a solution to diplomatic disputes?

International arbitration—a solution to diplomatic disputes?

Sun setting at the sea with sailing cargo ship, scenic viewCan inter-state arbitration be an effective political tool? Sophie Lamb, partner, and Ciara Murphy, associate at Debevoise & Plimpton LLP, look at why the case of Enrica Lexie has generated such political interest and controversy.

What is the background to this dispute? How did this come before an international arbitral tribunal?

On 15 February 2012, two Italian marines travelling on an Italian commercial oil tanker, the MV Enrica Lexie, as part of an anti-piracy naval detachment opened fire on an approaching boat, killing two Indian fishermen. The incident occurred 20 nautical miles from the Indian coast. The Enrica Lexie was summoned by the Indian authorities to port in Kochi, India where the two marines were arrested and charged with murder. One marine, Sergeant Girone remains in India on bail and the other, Sergeant Latorre was granted compassionate leave to return to Italy in September 2014.

At the heart of this dispute is whether the incident, involving Italian marines on an Italian-flagged vessel beyond India’s territorial waters but within its Exclusive Economic Zone (EEZ), is subject to the criminal jurisdiction of Italy or India.

In June 2015, Italy initiated an arbitration under the United Nations Convention on the Law of the Sea (UNCLOS) seeking, among other things, a declaration that it had exclusive jurisdiction over the incident and that India, by attempting to bring criminal proceedings against the marines, engaged in multiple breaches of its international obligations. Italy then proceeded to make two separate requests for an order that Sergeant Girone be released and allowed to return to Italy pending decision of the arbitral tribunal. A hearing of the second request for provisional measures took place in The Hague on 30/31 March 2016.

Under what circumstances can a state bring arbitral proceedings against another state under UNCLOS?

UNCLOS, of which both Italy and India are parties, has a compulsory dispute resolution mechanism. UNCLOS, art 283 requires that the states first attempt to settle their dispute amicably. If negotiations are unsuccessful, UNCLOS, art 287 provides that the dispute may be referred to one of four possible adjudicative bodies, namely:

  • the International Tribunal for the Law of the Sea (ITLOS) based in Hamburg
  • the International Court of Justice (ICJ) in The Hague
  • an ad hoc arbitral tribunal constituted in accordance with Annex VII UNCLOS (Annex VII Tribunal), or
  • a special ad hoc tribunal under Annex VIII of the UNCLOS Convention (for disputes relating to fisheries and protection of the marine environment)

While Italy had made a prior declaration submitting to the jurisdiction of both ITLOS and the ICJ, India had not. The dispute was therefore referred, by default, to a five-member Annex VII Tribunal and will be administered by the Permanent Court of Arbitration in The Hague.

What form is the arbitration taking in this case?

While the arbitral tribunal is being administered by the Permanent Court of Arbitration which is based in The Hague, it is an ad hoc arbitral tribunal (in contrast to a standing judicial body sitting in the Hague). Moreover, the arbitration is not in respect of repatriation, per se—rather it is about which state has jurisdiction to prosecute the two marines—but Italy has asked that the tribunal order that one of the marines be allowed to return to Italy pending determination of the case.

Can inter-state arbitration be an effective political tool?

International adjudication and arbitration play a critical role in the peaceful settlement of international disputes. Arbitration not only promotes peaceful resolution of disputes through binding determination by independent third parties, it also serves to depoliticise those disputes, allowing states to maintain normal diplomatic, economic and political relations in the meantime. This is well illustrated in the present case, which has generated huge political interest and controversy in both states.

In 2013, prior to the commencement of the arbitration, the Italian ambassador to India was threatened with contempt of court and ordered not to leave the territory after the marines, who had been granted leave to travel to Italy for a short period, did not return in time, raising questions of diplomatic immunity. By referring the dispute to international arbitration, the scope for such bilateral diplomatic incidents was removed.

Does this case raise any interesting issues in terms of the use of arbitration to settle state-state disputes?

A notable aspect of this case has been Italy’s attempt to secure the immediate release of Sergeant Girone through two separate requests for provisional measures pending final determination of the claim. The first request was rejected by ITLOS on 24 August 2015 (ITLOS is empowered under UNCLOS, art 290(5) to grant provisional measures prior to the constitution of the Annex VII Tribunal). ITLOS did, however, order both states ‘to suspend all court proceedings’ until final resolution of the dispute. Both states complied with the order. Italy then made a second request, arguing that since India could not bring any proceedings or press charges because of the stay, Sergeant Girone was effectively detained in India without charge in violation of due process and his human rights. A decision on this request remains pending.

More generally, this case has given rise to fascinating questions of public international law, including:

  • whether officers operating on a merchant vessel enjoy sovereign immunity, and
  • the extent of a state’s powers to assert jurisdiction over its EEZ and maritime contiguous zone

 

Interviewed by Stephanie Boyer.  The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

 

 

 

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