Updated: August 25, 2015 9:38:21 am
The International Tribunal for the Law of the Sea (ITLOS) in Hamburg, hearing the case of two Italian marines accused of killing two Indian fishermen off the Kerala coast in February 2012, on Monday directed, as part of provisional measures, that both Italy and India “shall suspend all court proceedings” relating to the matter.
While a final decision on which country can exercise jurisdiction over the marines is yet to be taken by an Annex VII Arbitral Tribunal under the United Nations Convention on Law of the Sea (UNCLOS), the ITLOS was, meanwhile, deciding on Italy’s request for “provisional measures’’ in the case and India’s arguments against it.
The ITLOS directed the countries to refrain from initiating new court proceedings “which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardise or prejudice the carrying out of any decision which the arbitral tribunal may render.”
The tribunal also decided that both countries would submit an initial compliance report by September 24, and authorised its president to request such information from the two parties as he may consider appropriate. In effect, with status quo prevailing in the matter, India will not have to give in to Italy’s demand for lifting restrictions on Italian Sergeant Salvatore Girone to allow him to travel to Italy and remain there throughout the proceedings before the Annex VII Tribunal.
The 21-member ITLOS issued the order with 15 in favour and six against. Among those who dissented were the tribunal’s vice-president Boualem Bouguetaia and member P Chandrasekhara Rao. Rao, who served as the tribunal’s president from 1999 to 2002, dissented against any sort of provisional measures being passed.
“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,” Rao 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 opined.
As provisional measures, Italy had asked ITLOS to precribe that India refrain from taking or enforcing any judicial or administrative measures against Sergeants Massimiliano Latorre and Girone in connection with the firing, and from exercising any other form of jurisdiction.
It also wanted the tribunal to direct that “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 and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings…”
Countering these demands, India had asked ITLOS “to reject the submissions made by the Republic of Italy for the prescription of provisional measures and refuse prescription of any provisional measures in the case.”
The ITLOS order states that “since it will be for the Annex VII Tribunal to adjudicate the merits of the case, the tribunal does not consider it appropriate to prescribe provisional measures…because that touches upon issues related to the merits of the case.”
Placing the arguments from both countries, the ITLOS order stated: “Considering that the first and second submissions by Italy, if accepted, will not equally preserve the respective rights of both parties until the constitution of the Annex VII arbitral tribunal… the tribunal does not consider the two submissions by Italy to be appropriate”.
Will abide by order: MEA
Stating that India would abide by the tribunal’s order, Ministry of External Affairs spokesperson Vikas Swarup said: “…Italy had approached the tribunal for two provisional measures: that India should refrain from taking or enforcing any judicial or administrative measures against the two Italian marines and from exercising any form of jurisdiction over the incident; and for the return of Sgt Girone to Italy and continued stay of Sgt Latorre in Italy…”
“…It is clear that the tribunal did not consider the two provisional measures sought by Italy to be appropriate as that would have pre-judged the merits of the case and would not have equally preserved the rights of both parties…”
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