Monthly Archives: September 2015

When the Enrica Lexie conundrum sets its sail overseas: Some thoughts on the UNCLOS dispute between Italy and India

Harisankar K S*

More than two years ago, I had an opportunity to reflect on the two significant legal issues of coastal state jurisdiction and sovereign functional immunity surrounding the Enrica Lexie incident, somewhere else. As India insisted on the prosecution of Italian marines for an offense committed in its contiguous zone and/or Exclusive Economic Zone, under the domestic law, Italy continued to protest India’s criminal jurisdiction on the basis of international law as the incident occurred in international waters and wanted the marines to be tried under Italian law. After almost three and half years of legal battle, Italy has decided to take India to an international forum. In this post, I intend to look at some of the major developments that followed the judicial process in India, which remained unsettled and had,therefore,lead to an international arbitration. A recap of the important milestones of this ocean conflict is inevitable before starting a discussion on the ongoing UNCLOS dispute settlement process.

The story thus far

The incident happened approximately 20.5 nautical miles off the coast of Kerala (an Indian state) on 15 February 2012 when two marines deployed on an anti-piracy mission onboard an Italian-flagged oil tanker MV Enrica Lexie allegedly shot dead two fishermen onboard an Indian fishing vessel St. Antony. The marines were arrested by the Kerala police and charged with murder under the Indian criminal law. The High Court of Kerala, while dismissing a writ petition filed by the Republic of Italy along with its marines, asserted that India has exclusive jurisdiction over the matter and rejected the plea of sovereign immunity. On appeal, the Supreme Court affirmed the jurisdiction of India, however, held that courts in Kerala are not empowered to exercise this jurisdiction, and directed the government to set up a special court in Delhi. Later, the case was handed over afresh to the National Investigation Agency (NIA). International organizations including the UN and EU voiced their concern over the dubious legal proceedings and demanded a speedy settlement of dispute in international level. In the meanwhile, NIA, despite the non-corporation of Italy and its Marines, has completed the investigation and submitted its report to the government of India. However, acceding to repeat applications made by the Italian side, the Supreme Court precluded the filing of a formal charge-sheet by NIA, resulting in the abeyance of any prosecution by the special court. At present, Sergeant Lattore is in Italy for a medical treatment and Sergeant Girone lives in the Italian embassy in New Delhi.

Beginning of the international legal process

Both India and Italy, being contracting parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), are bound by the dispute settlement procedure stipulated in the convention. The Convention offers a range of mandatory dispute resolution procedures including adjudication and arbitration, from within and outside convention’s framework. Yet it requires the States to settle their disputes through peaceful means before resorting to any of the compulsory procedures entailing binding decisions. Exchange of views (Negotiation) and Conciliation under Annex V are regarded as part of the “General Obligations” of the State parties involved in a dispute concerning the interpretation or application of the Convention. The exchange of views through political and diplomatic channels between the governments of Italy and India are sufficient to indicate that the general obligation have been satisfied in this case.

Italy, by a notification dated 26 June 2015, instituted arbitration under Annex VII of the UNCLOS. In its statement of claim, Italy contends that, among other things, India’s exercise of criminal jurisdiction violates the Convention. There are couple of questions that might strike at the first instance. First, why did Italy choose for Annex VII arbitration, when their UNCLOS declaration provides something else? It is a matter of choice for the States to select a suitable forum from an array of dispute resolution models, at the time of signing, ratifying or acceding to the Convention, or anytime thereafter. State parties are provided with a choice between two courts, namely, the International Court of Justice (ICJ) and the International Tribunal for Law of the Sea (ITLOS). Additionally, Arbitration (under Annex VII) and Special Arbitration (under Annex VIII) are available as an alternative to international adjudication. Italy at the time of ratification selected ITLOS and ICJ, without specifying that one have precedence over the other. Whereas, India reserved its right to make at the appropriate time the declarations concerning the settlement of disputes. In such a situation, Annex VII arbitration operates as a default method. Means, disputant states would have to resort to arbitration when a State has not specifically opted for a procedure, and/or, states in dispute have accepted different procedures for settlement. So, Italy had no other option but to initiate Annex VII arbitration in the present case. However, a more baffling question is why did Italy wait for nearly three and half years since the incident occurred? It is an undeniable fact that, while contesting the jurisdiction of Indian courts, Italy ‘played the game’ rigorously until a point when the chances of getting the ball to their court became extremely difficult. At the end of the day, a lawyer must ensure that ‘the most convenient forum’ hears his/her client’s case. The exercise of forum shopping is not a matter of law. May be of ethics?

Secondly, could India turn down the arbitration notification, legitimately?  The answer would be in the negative. All states that are involved in a dispute do not need to consent to the reference of the dispute to the court or tribunal. In other words, a unilateral action is sufficient to vest the court or tribunal with jurisdiction, and that court or tribunal may render a decision whether or not the other State participates in the process. Therefore, technically, India had no option than to accept the offer of arbitration. However, on the other hand, by deciding to take part in an international arbitration, India went against its earlier stance on the issue. At all levels of the judicial process, India maintained that it has exclusive jurisdiction under Indian law and UNCLOS is not applicable to the matter. In so doing, the court(s) rejected Italy’s main contention based on Article 97 of the Convention, which states that, “in the event of a collision or any other incident of navigation concerning a ship on the high seas only the flag state of that ship has the jurisdiction to launch penal proceedings.The judicial opinion in India asserted that a ‘shoot and kill’ incident could not be treated as any other incident of navigation. Before the ITLOS, while blaming Italy for their delaying tactics, India emphasized on the humane and flexible behavior of Indian courts towards Italian marines. The written observations submitted by India says, “on various occasions, the High Court and the Supreme Court acted in a highly sympathetic manner and responded favorably to the requests of the marines with regard to the relaxation of their bail conditions”. The relevant question here is, does India’s criminal justice system permit such an attitude from the courts? Or in other words, will the Indian court(s) afford the same manner of treatment to a national who is charged with murder?

ITLOS Provisional Measures

Following the arbitration notification addressed to India, on 21 July 2015 Italy requested the ITLOS to prescribe two provisional measures pending the constitution of an Annex VII tribunal. They wanted the court to lay down the following measures:

(a) India shall refrain from taking or enforcing any judicial or administrative measures against the marines in connection with the Enrica Lexie Incident, and from exercising any other form of jurisdiction over the Enrica Lexie Incident; and,

(b) India shall take all measures necessary to ensure that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.

This action of Italy is evidently justified under the Convention. According to Article 290 (5):

         Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires.

The Tribunal on 24 August 2015, by a majority of 15:6 ordered that, “Italy and India shall both suspend all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render”. However, on the question of the release of the marines from the official custody of India, the tribunal concluded “the question of their status relates to the issue of jurisdiction and cannot therefore be decided by the Tribunal at the stage of provisional measures” [Para. 113]. Interestingly, the tribunal considered that the two provisional measures requested by Italy, “if accepted, will not equally preserve the respective rights of both Parties until the constitution of the Annex VII arbitral tribunal”[Para. 126]. They justified this action by Article 89 (5) of the ITLOS Rules, which says, “the tribunal may prescribe measures different in whole or in part from those requested.”

Turning to the requirements under Article 290 (5); first, the threshold of finding a prima facie jurisdiction is a low one. In the ICJ case of Interhandel (Switzerland v. United States) Judge Lauterpacht opined that the requirement is to assure that the jurisdiction of the tribunal to be constituted is not obviously excluded from deciding the merits. Similarly, while ordering the provisional measures in the case of MOX Plant (Ireland v. United Kingdom), ITLOS held that the prescription of provisional measures is usually allowed if the absence of jurisdiction is not manifest. It is possible that the finding of ITLOS on prima facie jurisdiction may prove wrong; for instance, when the arbitral tribunal later constituted under Annex VII in the case of South Bluefin Tuna concluded that it did not have jurisdiction to adjudicate on the merits of the case. The second criterion of ‘urgency of the situation’ is often linked to the gravity of the harm sought to be avoided by the request of provisional measures. In a situation where ITLOS is not seized of the merits, and there exists an uncertainty as to when an Annex VII tribunal would be in a position to adjudicate the case, the tribunal may, as a matter of urgency, prescribe provisional measures. Here, the main argument of India against the prescription of provisional measures revolved around the total absence of urgency, which the tribunal did not accept.Further, the language of the Convention indicates that the provisional measures ordered in UNCLOS disputes are binding as a matter of law [Article 290(6)]. Accordingly, Indian Supreme Court suspended all the pending judicial proceedings and set January 13, 2016 as the date for the next hearing.

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What do this order and the imminent international arbitration mean to India? In the domestic political circle, it is perceived as a setback to the Indian legal system. Although before the ITLOS India accused Italy, rightly or wrongly, for their delaying tactics and judicial strategy,the order exposes the inordinate delays and inconsistencies of the Indian courts once again. Nevertheless, the decision to participate in Annex VII arbitration and the subsequent appearance before the ITLOS tribunal would be hailed internationally. Perhaps, the Indian Supreme Court is wary of the situation because of an earlier experience when the country was held liable for its judicial delays in the form of an international arbitration award. However, I believe that, India should have agreed to submit the subject matter to the ITLOS or ICJ, at the ‘appropriate’ time and in accordance with declaration made by Italy, instead of agreeing for an international arbitral process. By doing so, the government would have saved the time, energy and a tremendous amount of expenditure that is otherwise required in establishing an arbitral tribunal and subsequent running of the process. The significance of such an action could be proved shortly, as it is less likely that the matter will come back to an Indian court.

* Doctoral Candidate, Faculty of Law, National University of Singapore.

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Indian athlete’s persistence culminates into a landmark Court of Arbitration for Sport interim award

 

Aakanksha Kumar* & Kartikey Mahajan*

Recently, an Indian female sprinter has been at the forefront in limiting the role played by the allegedly “performance enhancing androgen” – testosterone hormone levels as a relevant factor in distinguishing male and female athletes. The female sprinter is Dutee Chand, who holds the National under-18 record in the girls’ 100m category. She was barred from competing due to naturally high levels of testosterone in her body, which were in excess of the IAAF Hyperandrogenism Regulations. This post tries to throw light on some of the issues concerning the CAS interim award that she obtained, which suspends these regulations.

The IAAF Guidelines

The International Association of Athletics Federation (“IAAF”) is the governing body of track and field sport, as recognized by the International Olympic Committee (“IOC”). Gender has always been an issue of controversy in track and field sports. Readers may recall the case of Caster Semenya (a South African runner), which gathered a lot of publicity.[1] In order to resolve issues relating to gender, the IAAF in 2011 established guidelines requiring female athletes to have testosterone levels below 10 nanomoles per liter, the lower end of the male range.[2] These guidelines are known as The IAAF Regulations Governing Eligibility of Females with Hyperandrogenism to Compete in Women’s Competitions (“IAAF Hyperandrogenism Regulations”), which were later adopted by the IOC. This was, and has continued to be the relevant criteria for distinguishing male and female athletes in track and field sports. The women who exceeded the criteria in these regulations were left with two options: either to undergo treatment to normalize their androgen levels, or cease competing.

Brief Factual Background of the Case

The Sports Authority of India (“SAI”) is the primordial body dealing with sports in India under the aegis of Ministry of Youth Affairs and Sports. SAI is not affiliated to IAAF and is not subject to IAAF’s regulatory jurisdiction. The Athletics Federation of India (“AFI”), on the other hand, is the apex body for running and managing athletics in India and affiliated to the IAAF, Asian Athletics Association and Indian Olympic Association.

On July 16, 2014, SAI released a statement confirming that Indian athlete Dutee, would be “not eligible to compete in the female category”, following a test that was conducted to check the level of androgen in her body. This was admittedly done pursuant to a letter from the AFI, seeking investigation into Dutee’s suspected high male hormone levels. Following representations and exchanges between Dutee’s medical representatives, SAI and AFI, the AFI issued its “Decision Letter” on August 31, 2014 notifying Dutee of her provisional suspension from any athletics competitions thereafter. Dutee wrote back to AFI on September 28, 2014 seeking a reconsideration of the aforesaid decision, while SAI maintained that in case AFI chose to not revoke its decision, SAI would continue to support Dutee’s plea to the CAS for reinstatement, as well as against the IAAF Hyperandrogenism Regulations.The IAAF initially ruled that Dutee could return to competitions, but only if she had significantly lowered her testosterone levels through certain drugs or surgery that limit the production of testosterone.[3] Dutee, in the meantime had already filed her appeal with the CAS court on September 26, 2014, challenging the IAAF Hyperandrogenism Regulations inter-alia on the basis that they discriminate unlawfully against female athletes and are based on flawed factual assumptions about the relationship between testosterone levels and athletic performance.

Jurisdiction of the CAS over the issue and power to grant provisional relief

The AFI is a member of the IAAF under Article 4 of the IAAF Constitution, and thus, as mentioned, is affiliated to and governed by the IAAF Regulations. Under Art. XXIV(1) of the AFI Constitution, the AFI committee has the power to suspend any athlete from National and International Competitions. This, read with Art. XXX(C) and (D) recognises that the AFI takes into account the IAAF Anti-Doping and other Technical Rules for ensuring compliance and as well as while taking decisions related to suspension. Articles 14.1(f) read with 14.7(f) of the IAAF Constitution further enable the IAAF Congress and the IAAF Council, respectively, “to exclude a Member’s athletes from any one or more of the types of International Meeting defined in the Rules.” Such a decision, “of the Council whether to suspend a Member under Article 14.7(a) or to issue any other sanction under Article 14.7 shall be subject to an appeal before the Court of Arbitration for Sport (CAS).[4]

The CAS derives its jurisdiction from Art.15 of the IAAF Constitution which provides that :

“ARTICLE 15

Disputes

  1. All disputes arising under this Constitution shall, in accordance with its provisions, be subject to an appeal to the Court of Arbitration for Sport in Lausanne (CAS).
  2. The CAS appeal shall be in accordance with the rules of CAS currently in force, provided always that the CAS Panel shall be bound to apply the Articles of this Constitution and the appellant shall file its statement of appeal within sixty days of the date of communication in writing of the decision that is to be appealed.

The CAS Appeal process is governed by the Statutes of the Bodies Working for the Settlement of Sports-Related Disputes, (“CAS Code”). Part C(3), Rule S20(b) provides for the creation of the “Appeals Arbitration Division, (that) constitutes Panels, whose responsibility is to resolve disputes concerning the decisions of federations, associations or other sports-related bodies insofar as the statutes or regulations of the said sports-related bodies or a specific agreement so provide….”.

The Procedural Rules begin at Recital R27, and these “apply whenever the parties have agreed to refer a sports-related dispute to CAS. Such reference may arise out of an arbitration clause contained in a contract or regulations or by reason of a later arbitration agreement (ordinary arbitration proceedings) or may involve an appeal against a decision rendered by a federation, association or sports-related body where the statutes or regulations of such bodies, or a specific agreement provide for an appeal to CAS(appeal arbitration proceedings)…Such disputes may involve matters of principle relating to sport or matters of pecuniary or other interests relating to the practice or the development of sport and may include, more generally, any activity or matter related or connected to sport.” Rules R47- R59 detail the Special Rules applicable to the Appellate Arbitration Process. Hence, it is the CAS that had jurisdiction over the claim in this matter, as it involved a challenge to an IAAF – AFI decision, along with a challenge to the rules themselves under which the decision was taken

It is interesting to note here that the appeal claimed that it ‘raises important issues of public interest and general application” and thus the arbitration proceedings, except her medical records, need not be kept confidential. However, since IAAF and AFI didn’t agree to a public hearing, a request for the same was denied by the CAS under R44.2 read with R57 of the CAS Code.

On November 25, 2014, provisional measures were sought on Dutee’s behalf, seeking permission for her to participate in athletics events during pendency of the arbitration proceedings, claiming that in light of her suspension, she was “under significant pressue from her major sponsor to undergo medical intervention”, and that continued absence from the tracks was increasing the pressure on her to seriously consider treatment. Thus, non-grant of interim remedies would lead to “irreparable harm”[5]. These measures were granted in two phases – First, a response from IAAF regarding Dutee’s plea for provisional measures was received on December 3, 2014, wherein the IAAF did not object to Dutee continuing to compete at national events. CAS thus confirmed on the same day that Dutee shall be allowed to compete at all national events, pending the pronoucement of a Final Award in the proceedings; Second, on March 26, 2015 the CAS Arbitral Panel directed that Dutee was also permitted to compete at the Asian Athletics Championsips that were to be held from June 3-7, 2015.

Decision

As stated above, the IAAF regulations in essence were aimed at determining how much testosterone can a female body possess which can lead to competitive advantage over other females? On July 24, 2015, the CAS handed down an interim arbitral award in Dutee Chand v AFI & IAAF. The CAS has effectively said that the existing evidence is insufficient to determine an exact level of testosterone, which can serve as a distinguishing criteria between males and females. The award suspends the IAAF Hyperandrogenism Regulations, “for a maximum period of two years in order to give the IAAF the opportunity to provide the CAS with scientific evidence about the quantitative relationship between enhanced testosterone levels and improved athletic performance in hyperandrogenic athletes.”

The CAS Interim Award is such, so that the IAAF is enabled to, in the two years at its disposal, submit further written evidence concerning the Hyperandrogenism Regulations that stand suspended, “in particular, the actual degree of athlectic performance advantage sustained by hyperandrogenic female athlestes compared to non hyperandrogenic female athletes, by reason of their high levels of testosterone”. The award also mandates that “…in the event no evidence is filed…or in the event that the IAAF confirms in writing to the CAS Court Office that it does not intend to file any such evidence, the Hyperandrogenism regulations shall be declared void.”

Nature of Interim Award by CAS

By virtue of R28 of the CAS Code, “The seat of CAS and of each Arbitration Panel (Panel) is Lausanne, Switzerland.” The concept that an arbitration is governed by the law of the place in which it is held, which is the ‘seat’ (or ‘forum’ or ‘locus arbitri’) of the arbitration, is well established in both the theory and practice of international arbitration.[6] The Swiss Federal Statute on Private International Law at Chapter 12 deals with international arbitration. Art. 176 provides that “The provisions of this chapter shall apply to all arbitrations if the seat of the arbitral tribunal is in Switzerland and if, at the time of the conclusion of the arbitration agreement, at least one of the parties had its domicile nor its habitual residence in Switzerland.”

It is understood that the power of an arbitral tribunal to issue partial or interim awards may derive from the arbitration agreement or from the applicable law.[7] Art. 188 of the Swiss Statute provides that “Unless the parties otherwise agree, the arbitral tribunal may render partial awards.”

The CAS Award of July 24, 2015 is an interim award that is to remain in force for a period of two years. While upon issuance of a final award an arbitral tribunal becomes functus officio, however, with respect to the interim award, the tribunal is functus officio only to the extent of the finality of the determination made in the interim award.[8] An interim award is nonetheless final in that it is open to challenge under Art. 190 of the Swiss Statute.

Concluding remarks

The IAAF has responded to the CAS Award via press release on July 27, 2015, mentioning that while it is happy that the CAS Panel acknowledged that “the IAAF and its experts have ‘acted with conspicuous diligence and good faith’, seeking ‘to create a system of rules that are fair, objective and founded on the best available science’, and that those rules ‘have been administered in confidence and with care and compassion’”, it intends to utilise the time given, recognising “that more evidence is required as to the precise degree of performance advantage that hyperandrogenic female athletes enjoy over athletes with normal testosterone levels, and its directive that the Regulations should be suspended for two years while that evidence is gathered….The IAAF will now meet as soon as possible with its experts and with the IOC and its experts to discuss how best to address this interim ruling by the CAS.”

Amongst other things, one specific question which the award leaves open is – if not testosterone levels, then what exactly aids in distinguishing male athletes from female athletes? The IAAF will either have to provide the relevant evidence in the two year span which the award permits or it would have to devise a new mechanism of identifying the dividing line between male and female athletes. The basis chosen for differentiating has to ultimately be reasonable and proportionate to the objective sought to be achieved.

* Aakanksha Kumar is an Assistant Professor at NLU Jodhpur and heads the Centre for Advanced Research and Training in Arbitration Law (CARTAL).

* Advocate, Supreme Court of India; LLM, Harvard Law School.

[1]For details on Caster Semenya and the IAAF Proceedings see Athlete Caster Semenya free to compete, BBC News, July 6, 2010, available at http://news.bbc.co.uk/sport2/hi/athletics/8793668.stm. (last visited August 31, 2015) See also John Branch, Dutee Chand, Female Sprinter With High Testosterone Level, Wins Right to Compete, NY Times, JULY 27, 2015 available at http://www.nytimes.com/2015/07/28/sports/international/dutee-chand-female-sprinter-with-high-male-hormone-level-wins-right-to-compete.html  (last visited August 31, 2015).

[2] IAAF Hyperandrogenism Regulations, Regulation 6.5 available at http://www.iaaf.org/download/download?filename=58438613-aaa7-4bcd-b730-70296abab70c.pdf&urlslug=IAAF%20Regulations%20Governing%20Eligibility%20of%20Females%20with%20Hyperandrogenism%20to%20Compete%20in%20Women%E2%80%99s%20Competition%20-%20In%20force%20as%25 (last visited August 20, 2015).

[3]IAAF Hyperandrogenism Regulations Explanatory Note, May 2011 available at http://www.iaaf.org/download/download?filename=fd073e9a-e217-431f-b06b-73e5349bd874.pdf&urlslug=IAAF%20Hyperandrogenism%20Regulations%20-%20Explanatory%20Notes%20-%20In%20force%20as%20from%201st%20May%202011 (last visited August 31, 2015).

[4] Art. 14.11, IAAF Constitution.

[5] R37, CAS Code, “…When deciding whether to award preliminary relief, the President of the Division or the Panel, as the case may be, shall consider whether the relief is necessary to protect the applicant from irreparable harm, the likelihood of success on the merits of the claim, and whether the interests of the Applicant outweigh those of the Respondent(s)….”

[6] Nigel Blackaby , Constantine Partasides , et al., Redfern and Hunter on International Arbitration, 179 (5th Ed., Oxford University Press, 2009).

[7]Id at p.519.

[8] See further Kempinski Hotels SA v PT Prima International Development, [2011] SGHC 171 at ¶¶30-32.

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