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Simply put: Setback at The Hague, but a few positives too

Indian Express explains what the order of the Arbitral Tribunal on the Italian marines case means for each of the two countries, and what lies ahead.

Written by Sagnik Chowdhury |
May 5, 2016 1:25:56 am
italian marines, italy marines case, UN court italian marine, italian marines case, marines fishermen case, india news, italy india marines, italian marines news, latest news Girone (right) is living at the Italian Embassy in Delhi; Latorre is back in Italy. (Express Photo)

What is the legal dispute in the Italian Marines case before the Arbitral Tribunal at The Hague?

The Arbitral Tribunal constituted at the Permanent Court of Arbitration at The Hague is adjudicating on who among India and Italy has the right to exercise criminal jurisdiction to try the two Italian marines — Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone — who were arrested in India for the killing of two Indian fishermen off the Kerala coast on February 15, 2012.

On December 11, 2015, Italy approached the tribunal asking it to prescribe interim or ‘provisional measures’ pending its final decision on criminal jurisdiction over the marines. Italy asked the tribunal to prescribe that “India shall take such measures as are necessary to relax the bail conditions on Sergeant Girone in order to enable him to return to Italy under the responsibility of the Italian authorities, pending the final determination of the Tribunal”.

Girone, who is out on bail on the orders of the Supreme Court, has been living in the Italian Embassy in New Delhi. Latorre was allowed to travel to Italy last year after being diagnosed with a medical condition.

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So, what has the Arbitral Tribunal ruled?

After hearing arguments from both countries in March on the prescription of provisional measures, the Arbitral Tribunal on April 29 ruled that Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of Girone’s bail conditions “to give effect to the concept of considerations of humanity”, so that Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the ongoing arbitration.

Is the order then in Italy’s favour?

While the Tribunal’s order has positives for both Italy and India, the prescription of provisional measures is a setback for India, which had opposed it altogether.

India had argued that Italy’s plea for provisional measures was a mere restatement of its request that had already been rejected by the International Tribunal for the Law of the Sea (ITLOS) at Hamburg. India had contended that there have been no new facts or changes since the ITLOS order that would warrant provisional measures from the Arbitral Tribunal. India argued that Italy’s request before the Arbitral Tribunal has the same objective as the ITLOS request as far as Girone is concerned, and the substance of the request “has been fully argued between the Parties and rejected by the ITLOS in its Order of 24 August 2015”.

Italy, however, argued that unlike the ITLOS request, the present request sought the “relaxation of bail conditions”, rather than the “immediate lifting of all restrictions”.

The Arbitral Tribunal has observed that the request submitted to it is a new request for the prescription of provisional measures, and it does not constitute an attempt to modify or revise any provisional measures previously prescribed by ITLOS. “Moreover, the Arbitral Tribunal notes that, as a matter of fact, the requests that Italy has submitted to ITLOS and the present Arbitral Tribunal are different in significant respects,” its order states.

Are there any positives for India?

The order neither releases nor frees Girone. It only recommends further relaxation of his bail conditions, to be considered and decided by the Supreme Court. It has also held that the Supreme Court will continue to exercise jurisdiction over Girone, even if he returns to Italy, till the Tribunal gives its final order on the matter of jurisdiction.

The Tribunal has said that while deciding on how to preserve Italy’s rights, it “is mindful of the fact that in the current situation Sergeant Girone is under India’s authority alone, although 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”.

It has also said that “to preserve India’s rights, the Arbitral Tribunal considers that any provisional measures that may be prescribed… should not alter the situation where the Supreme Court of India exercises jurisdiction over Sergeant Girone. Such jurisdiction would continue if the Supreme Court, in light of the order of the Arbitral Tribunal, authorises Sergeant Girone to spend time in Italy as part of his bail until the Arbitral Tribunal delivers a decision on the merits of the case.”

The Tribunal also confirmed Italy’s obligation to return Girone in case it was found that India had jurisdiction over him in respect of the incident. It placed on record undertakings given by Italy in regard to Girone’s return to India. It noted that these undertakings constituted an obligation binding upon Italy under international law.

What happens next in the case?

The Supreme Court will decide on the relaxation of Girone’s bail conditions. The Arbitral Tribunal has left it to the court to fix the precise conditions of bail. It has, however, suggested that it would be appropriate if equivalent arrangements to the conditions, guarantees and procedures in case of Latorre’s bail are applied to Girone.

Such arrangements may include the following conditions and guarantees: Italy shall ensure that Girone reports to an authority in Italy designated by the Supreme Court of India at intervals to be determined by the court; he shall be required by Italy to surrender his passport to the Italian authorities and shall be prohibited from leaving Italy unless the Supreme Court of India grants leave to travel; Italy shall on its own motion apprise the Supreme Court of India about Girone’s situation every three months.

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