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Permanent Court of Arbitration: Italy plea on marine ‘abuse of process’, says India

India presented its case as part of the hearings of the legal tussle between the two countries on exercising criminal jurisdiction over Italian marines Girone and Sergeant Massimiliano Latorre.

Written by Sagnik Chowdhury | The Hague |
April 2, 2016 3:24:24 am
Italian marines, Italian marines case, Massimiliano Latorre, Salvatore Girone, Italian marines case lawyers, kerala fishermen, Enrica Lexie, Alain Pellet, R Bundy, International Tribunal on Law of the Sea, ITLOS, UN International Law Commission, Indian fishermen, india news, indian express news Italian marines Massimiliano Latorre and Salvatore Girone charged in India with the killing two fishermen while off Kerala coast in 2012. (PTI)

India Thursday opposed Italy’s plea for provisional measures from the Arbitral Tribunal under the Permanent Court of Arbitration (PCA) at The Hague to allow Italian marine Sergeant Salvatore Girone to travel to and remain in Italy till arbitration between the two countries is completed.

India presented its case as part of the hearings of the legal tussle between the two countries on exercising criminal jurisdiction over Italian marines Girone and Sergeant Massimiliano Latorre. The two are accused by India of shooting dead two Indian fishermen off the Kerala coast in February 2012.

In its written submissions before the Tribunal, India has argued that Italy’s plea is a “mere restatement of the request” that has already been rejected by the International Tribunal for the Law of the Sea (ITLOS) at Hamburg. It contends that there have been no new facts or changes since the ITLOS order that would warrant provisional measures from the PCA.

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“Italy’s present request is tendentious. It constitutes an abuse of process,” India has claimed. “Italy’s submission is an unreasonable extension of the right to request provisional measures, and Italy is delaying the proceedings on the merits of the case by presenting the same request again. These new proceedings add to the burden of this matter,” India has contended.

According to a joint statement issued by India and the European Union on Thursday during the 13th India-EU summit in Brussels attended by Prime Minister Narendra Modi, “The EU and India expressed confidence in the arbitration procedure on the Italian Marines case currently underway in the framework of the UN Convention on the Law of the Sea (UNCLOS), to which India and Italy are strongly committed. Both sides will contribute to settling the case on this basis, enabling the cause of justice to be served for all those affected.”

India contends that Italy cannot overlook the clear conditions set out in Article 290 of UNCLOS for modification of provisional measures. It has said that that there must be a new fact creating “a real and imminent risk that irreparable prejudice may be caused to rights at issue before the final decision is delivered.”

Girone has been living in the Italian Embassy in New Delhi, while Latorre was allowed to travel to Italy last year after being diagnosed with a medical condition.

In its submissions, Italy has requested the Arbitral Tribunal to prescribe the following provisional measure: “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 Annex VII Tribunal.”

According to India, Italy has cast its submission as a request to prescribe what it terms an “additional provisional measure” under Article 290, paragraph 1, of UNCLOS.

While ITLOS did not accept Italy’s request, ruling that it did not consider the request to be appropriate, India has said that Italy is now requesting the tribunal at The Hague to modify the ITLOS Order of August 24, 2015 with respect to Girone. “Italy’s Request for provisional measures in the present proceedings was lodged less than four months after ITLOS issued its Order. Nothing has changed during that period that in any way changes the situation with respect to Sergeant Girone except that the duration of the Annex VII proceedings is now known after the adoption of the Rules of Procedure on 18 January 2016,” India has argued.

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