A Satisfactory Answer? The Enrica Lexie Award and the Jurisdiction over Incidental Questions

This article situates the Enrica Lexie award’s stance on the Tribunal’s jurisdiction over the marines’ immunity within the broader debate on the scope of the jurisdiction of international courts and tribunals over incidental questions. After illustrating the Tribunal’s approach to the question at hand, the paper appraises those instances where an international tribunal with limited jurisdiction can decide issues and apply rules that are “external” to its principal jurisdiction. It then focuses on the question of the jurisdiction over incidental issues, which is the most debated avenue for an international tribunal to engage with substantive matters falling outside the scope of the tribunal’s ratione materiae jurisdiction. Finally, the Tribunal’s approach in the Enrica Lexie award is critically assessed against the above debate. It is submitted that, although the award arguably put an end to the longstanding dispute between India and Italy, the Tribunal’s reasoning does not seem to be in line with the conditions for the exercise of jurisdiction over incidental questions as roughly sketched in relevant case law.