After the International Tribunal for the Law of the Sea (ITLOS) in Hamburg announced “provisional measures” in the case of two Italian marines accused of killing two Indian fishermen off the Kerala coast in February 2012, India and Italy are now set to take part in intense negotiations on the composition of a five-member Annex VII Arbitral Tribunal that will give a final ruling in the dispute.
The Annex VII Arbitral Tribunal — under the United Nations Convention on the Law of the Sea (UNCLOS) — will give a final decision, binding on Italy and India, about which of the two countries can exercise criminal jurisdiction over the marines.
Sources said India had nominated ITLOS judge P Chandrasekhara Rao as its nominee for the Annex VII tribunal.
“India and Italy will each nominate one member for the the Annex VII Arbitral Tribunal that is yet to be constituted. The remaining three members will be decided through negotiations between the two countries. India’s choice is P Chandrasekhara Rao,” said a government source.
“In case an agreement on the other three members for the tribunal is not reached during negotiations, the president of ITLOS will then decide who the other three members will be. The entire process could take around a month,” the source added.
The ITLOS decisions pronounced on August 24 were taken by 15 votes against 6, its order stated.
Rao was one of those who dissented against any sort of provisional measures being passed by ITLOS. He has been a member of ITLOS since October 1996, and had also served as the tribunal’s president from 1999 to 2002.
“The record in this case shows that there is absolutely no ‘real and imminent risk’ that irreparable prejudice will be caused to Italy’s rights before the Annex VII Arbitral Tribunal would be able to deal with the case. In view of the above, there is no urgency such as that required to justify the exercise of the power to prescribe provisional measures,” he wrote in his dissenting opinion.
“Though it appears that the measure prescribed by the Tribunal is addressed to both parties, it is actually addressed only to India. The measure prescribed by the Tribunal in this case is entirely one-sided and is not well-founded in law,” Rao argued.