(a) India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie Incident, and from exercising another form of jurisdiction over the Enrica Lexie Incident; and
(b) India shall take all necessary measures to ensure that restrictions on the liberty, security and movement of the Marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.2
Italy and India shall both suspend all court proceedings and shall refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render.4
In addition, ITLOS decided:
Italy and India shall each submit to the Tribunal the initial report referred to in paragraph 138 not later than 24 September 2015, and authorizes the President, after that date, to request such information from the Parties as he may consider appropriate.5
1. India shall submit a response to Italy’s Request no later than 26 February 2016.
2. A hearing on provisional measures shall be held on 30 and 31 March 2016 at the Peace Palace in The Hague.10
H.E. Ambassador Francesco Azzarello Ambassador of the Italian Republic to the Kingdom of the Netherlands
Sir Daniel Bethlehem KCMG QC Member of the Bar of England and Wales
Mr. Suhail Dutt Senior Advocate; Member of the Delhi Bar
Dr. Mauro Politi Professor of International Law, University of Trento; Member of the Human Rights Committee
Mr. Sudhanshu Swaroop QC Member of the Bar of England and Wales
Mr. Guglielmo Verdirame Professor of International Law, King’s College, London; Member of the Bar of England and Wales
Sir Michael Wood KCMG Member of the International Law Commission; Member of the Bar of England and Wales
as Counsel and Advocates;
Mr. Paolo Busco Member of the Rome Bar
Dr. Ida Caracciolo Professor of International Law, University of Naples 2; Member of the Rome Bar
Dr. Ben Juratowitch Solicitor Advocate, England and Wales; Solicitor of the Supreme Court of Queensland; Partner, Freshfields Bruckhaus Deringer, Paris
Mr. Kevin Lee Advocate of the Supreme Court of Singapore, Singapore
Ms. Natasha McNamara Lawyer of the Supreme Court of Victoria; Associate, Freshfields Bruckhaus Deringer, Paris
Dr. Daniel Müller Associate, Freshfields Bruckhaus Deringer, Paris
Mr. Mario Antonio Scino Advocate, State Attorney, Office of the Attorney General, Rome
Dr. Attila Tanzi Professor of International Law, University of Bologna
Mr. Diljeet Titus Advocate, Titus & Co Advocates; Member of the Delhi Bar
Dr. Philippa Webb Reader in Public International Law, King’s College, London; Member of the New York Bar
Ms. Francesca Lionetti Freshfields Bruckhaus Deringer, Paris
as Legal Assistant.
Dr. Neeru Chadha Former Additional Secretary and Legal Adviser, Ministry of External Affairs
H.E. Ambassador J.S. Mukul Ambassador of the Republic of India to the Kingdom of the Netherlands
Dr. Vishnu Dutt Sharma Joint Secretary and Legal Adviser, Ministry of External Affairs
as Deputy Agent;
Dr. Alain Pellet Emeritus Professor, University of Paris Ouest, Nanterre-La Défense; Former Member & Chairman of the International Law Commission; Member of the Institut de droit international
Mr. Rodman R. Bundy Eversheds LLP Singapore; Member of the New York Bar and former Member of the Paris Bar
Mr. Benjamin Samson Ph.D. Candidate, Centre de droit international de Nanterre (CEDIN), University of Paris Ouest, Nanterre-La Défense
Ms. Laura Yvonne Zielinski Eversheds Paris LLP; Member of the New York Bar
as Junior Counsel;
Mr. Anurag Tankha Inspector-General, National Investigation Agency
Mr. S.K. Chhikara Deputy Secretary (Internal Security-I), Ministry of Home Affairs
Dr. Kajal Bhat First Secretary Legal, Embassy of India, The Hague
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.11
to reject the submission made by the Italian Republic in its Request for the prescription of provisional measures and to refuse to prescribe any new provisional measures in the present case.12
In the presentation of Mr. Bundy (Hearing Transcript, Day 1, 168:2-3), mention is made of "intense diplomatic efforts" that were required to ensure that the Marines would return to India. What were those diplomatic efforts that took place?
I cannot speak for Mr Bundy on the question of what he had in mind when he spoke about "intense diplomatic efforts". What we can say is that there were at that point, as there have been on other occasions, diplomatic exchanges between the two States in an attempt to resolve the impasse of this dispute. There were certainly diplomatic exchanges at that time, and the Marines were returned to India within the deadline that was required by Italy’s undertaking.15
He further added:
for the three and a half years of this dispute, from 15th February 2012, the point of the incident, to the Notification instituting these proceedings on 21st July 2015, there were diplomatic exchanges between the two States in an attempt to resolve the dispute.
Those exchanges, however, as it turned out, were akin to broken telephone conversations between intermediaries representing what they thought were the views of those for whom they spoke. The Parties have misunderstood one another on this issue more than they have understood one another.
Italy has on occasion brought applications before the Indian courts because they thought they understood from their Indian interlocutors that this was the way to resolve the dispute, whereas in reality either Italy misunderstood what India was saying, or those speaking for India did not sufficiently understand the complexity of the issues about which they were talking.
[...] the point is simply that the Parties failed, in their diplomatic dialogue, both to sufficiently understand one another, and to find a way through the issues that divide them.16
The Tribunal will recall that Italy sent a Note Verbale on 11th March 2013 to India saying that the Marines would not return upon the expiry of the leave they had been granted by India’s Supreme Court in February.
Italy’s Note also indicated that Italy considered that a controversy between the two parties, Italy and India, had been established by that time, the controversy had been established by that time, and this was the reason for the Marines’ non return.
[…] Italy’s view that a controversy had been established by March 2013 was more than two years before Italy filed its Annex VII Notification stating that there was a dispute between the Parties and indicating that Italy would seek provisional measures. I mentioned yesterday that time lag is not conducive to an argument based on urgency.
Italy’s Note was contrary to the personal undertaking that the Italian Ambassador had given in support of the Marines’ application for permission to return to Italy for four weeks to vote in the Italian elections.
India immediately responded on 12th March 2013 by means of a diplomatic Note to Italy. India’s Ministry of External Affairs informed Italy that the latter’s position was not acceptable to the Government of India, and that the failure of the Marines to return within the stipulated time limit would be a breach of the sovereign undertakings given by the Republic of Italy to the Supreme Court of India.
The Secretary of the Ministry of External Affairs responsible for Western Europe then met the Ambassador of the European Union on 14th March 2013. In that meeting, the Secretary conveyed the position that Italy’s decision not to send the Marines back at the expiration of the permission granted to them was a breach of Italy’s undertakings. The EU Ambassador was also informed that the breach of an express undertaking by one of the EU Member States ran counter to the EU’s support for the propagation of the principle of the Rule of Law and an independent judiciary, values that the EU holds in the highest regard. He added that India did not desire an intervention by the EU on what was essentially a bilateral issue.
In the event, the Marines did return within the stipulated time, but this was as a result of what I have said were intense diplomatic efforts.17
As a preliminary matter, I note that this goes to the merits and is therefore an issue that we will address more fully by reference to the evidence in due course. I confine myself for the moment, therefore, to addressing this issue by reference to the documentation that is already in the record.
The answer to the question comes in three parts. The first part is the issue of what India communicated to the "Enrica Lexie" at the time. The "Enrica Lexie" was requested by India to proceed to Kochi to assist in the investigation of an incident that the Indian authorities, in their communication to the vessel, characterised as involving a firing on skiffs suspected of piracy. What the vessel subsequently learnt was that the Indian authorities were not in fact treating the incident as a suspected pirate attack, but were simply saying as such to the "Enrica Lexie". The communication gave no indication that the vessel or anyone on board the vessel was suspected of any wrongdoing.
Second, the true reason for that request, which was not communicated to the "Enrica Lexie" while it was outside India’s territorial sea, was to arrest the ship and the individuals on board suspected of killing the two Indian fishermen.
Third, regardless of the reason given in the communication, the "Enrica Lexie" had no choice but to comply with India’s direction and to enter India’s territorial sea and proceed to anchor at Kochi. The vessel was interdicted in international waters. It was encircled. It was directed to alter course, and it was continuously contacted and shadowed until it arrived in Kochi.18
Kochi is the nearest port to the place of the incident. The local police received information about the incident through a call from the sea. The Coast Guard and Indian Marine Rescue Co-ordination Centre in Mumbai were alerted, and a preliminary analysis of the situation from plotting showed that there were six vessels, including the "Enrica Lexie", in the area where the firing took place. Phone contacts were obtained for each vessel, and the "Enrica Lexie" was the first vessel to be contacted over the phone by the Marine Rescue Coordination Centre.
On enquiry, the captain and another officer on board the "Enrica Lexie" confirmed that there was a firing incident from the ship. The captain also informed that they had sent a notice about the incident to the United Kingdom Marine Trade Operations.
On request from the Marine Rescue Co-ordination Centre, the captain e-mailed a copy of the same to the Centre the same day.
I would now like to read out from the e mail sent to the captain of the "Enrica Lexie" by the Centre in Mumbai on the evening of the incident:
"Understand there has been piracy/firing incident by your vessel on a suspicious skiff at 1600 hours LT [local time] off Allepey.
"You are requested to head to Kochi and establish communication with Indian Coast Guard for further deposition/clarification. Request ETA Kochi".
That communication, Mr President, by its plain terms, indicates that there was no preconceived mindset of the Indian authorities to arrest the ship or anyone on board. While this is obviously clearly a merits issue, the e-mail refers to two possibilities confronted by the Indian authorities, piracy and a firing incident. Therefore, in order to clarify what happened, the vessel was requested -- those are the words -- to head to Kochi, and there are no grounds whatsoever for Sir Daniel’s assertion this morning that the purpose of the request was to arrest the ship and the individuals on board suspected of killing the two Indian fishermen.19
ITLOS stressed, in paragraphs 134 and 135 of its Order of 24 August 2015, the need to take into account the "grief and suffering of the families of the two Indian fishermen who were killed" as well as "the consequences that the lengthy restrictions on liberty entail for the two Marines and their families". Could the Parties comment on any implications that they believe these two paragraphs might have for the current proceedings?
The Tribunal evidently wanted to indicate that it did not regard the human dimension of this inter-state dispute as an abstraction.
It would not be correct, however, to read, as Mr Bundy seemed to suggest yesterday, these two paragraphs as defining the "balance to be struck" in this case. This was clearly not the point of these paragraphs. ITLOS was not trying to "split the suffering". That could never be the way in which justice, including international justice, can serve the interests of victims. Those interests are served principally by ensuring that a proper process of law and an appropriate and fair trial takes place, and that the truth of what happened is established, and that anyone found guilty of an offence at the end of a domestic criminal process serve a punishment commensurate with the offence.
So far as concerns the families of the fishermen, their interest is in seeing that justice be done. But for reasons we have explained, that does not require that Sergeant Girone, who is to be presumed innocent, stay in India for a lengthy period during which no trial can take place. So the families will not suffer prejudice from the measure sought by Italy.
On the other hand, the consequences that "the lengthy restrictions on liberty" entail for Sergeant Girone and his family must certainly weigh in favour of the provisional measure requested by Italy.20
India maintains that if one has to place the decision of the ITLOS in its correct perspective, the fundamental premise of the Order dated 24th August 2015, and paragraphs 134 and 135, points to the need for balanced provisional measures, capable of equally protecting the interests and rights of both the parties. This consideration, in India’s view, remains relevant in the context of the question put by the Tribunal.21
Ambassador Mukul stated (Hearing Transcript, Day 1, 132:16-22) that, "in none of the hearings mentioned, the Union of India objected to the relaxation of bail conditions. In all these hearings, the Union of India and the Supreme Court have acceded to every request of Sergeant Latorre and Sergeant Girone, whether they are medical needs or the exercise of their right to vote". On the other hand, Italy stated (Request, para. 51) that, "[o]n 16 December 2014, at a hearing before the Supreme Court of India […] the Government of India, through its Additional Solicitor General, opposed the petition of Sergeant Girone. During the hearing, the Court made it clear that the petition would be rejected. For that reason, the petition was withdrawn". How do the Parties explain this apparent discrepancy?
It is accurate to say that Sergeant Girone’s petition was withdrawn. It is inaccurate to a quite startling degree to say that the Government of India did not oppose that petition.
It is equally inaccurate to suggest that Sergeant Girone simply withdrew his petition. His petition was withdrawn, and a decision made not to resubmit it, in the face both of Indian Government opposition to the petition, and a categorical statement by the Chief Justice of India in the court that he would reject the petition.22
India stands by what it said: the petition was not opposed by India and the court took note of the Marines’ withdrawal of their petition and ruled accordingly, without soliciting the views of India or relying on them.
Italy itself has asserted that the petition was withdrawn because the Supreme Court, not India, had made it clear that the petition would be rejected. The support for that statement by Italy is a news account filed by it, which is in annex IT-42.
That account indicates that the Government of India did not oppose Sergeant Latorre’s application because he made an application at the same time, and it does not indicate that India took any different position with respect to Sergeant Girone. Not a word about Indian opposition to the petition is mentioned in the press report.
As to how the Supreme Court would have ruled, it’s impossible to speculate, since the application was withdrawn before a ruling could be made. But what we do know from the record that is in this case is that the subsequent applications of Sergeant Latorre which were on health grounds were not opposed by India, and were granted by the Supreme Court. But as I pointed out yesterday, when it comes to Sergeant Girone, he made no further application that the Supreme Court was called upon to rule on after February 2013, that was the application that led to the incident I just discussed a few moments ago, in response to the Tribunal’s first question.23
India does not seek anything more onerous than the benchmark set by the Supreme Court of India, and some of these conditions were indicated by Italy’s counsel yesterday.
India needs to be assured that in case the Tribunal finds that India has jurisdiction, the presence of Sergeant Girone would be ensured. Towards that end, India would deem it necessary that the Tribunal itself fix these guarantees.24
India does not intend to respond to [Italy's] arguments about whether the Tribunal prima facie has jurisdiction in order to prescribe provisional measures, or the link between the measures and the rights Italy seeks to protect. In its Order of 24th August 2015, ITLOS dealt with both of these points, and [...] India does not intend to second guess or seek to modify the Law of the Sea Tribunal’s conclusions on these matters.28
If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.
Considering that, since it will be for the Annex VII Arbitral Tribunal to adjudicate the merits of the case, the Tribunal does not consider it appropriate to prescribe provisional measures in respect of the situation of the two Marines because that touches upon issues related to the merits of the case.58
41. Considering that the Special Chamber may not prescribe provisional measures unless it finds that there is "a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in dispute" [...];
42. Considering, in this regard, that urgency is required in order to exercise the power to prescribe provisional measures, that is to say the need to avert a real and imminent risk that irreparable prejudice may be caused to rights at issue before the final decision is delivered […];
43. Considering that the decision whether there exists imminent risk of irreparable prejudice can only be taken on a case by case basis in light of all relevant factors;86
63. Whereas the Court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of the judicial proceedings […];
64. Whereas the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice may be caused to the rights in dispute before the Court has given its final decision […]; and whereas the Court must therefore consider whether such a risk exists in these proceedings.87
Italy has offered, and hereby renews, solemn undertakings to the effect that it will comply with an award of the Annex VII Tribunal requiring the return of the Marines to India.121
I must emphasise that in none of the hearings mentioned, the Union of India objected to the relaxation of bail conditions. In all these hearings, the Union of India and the Supreme Court have acceded to every request of Sergeant Latorre and Sergeant Girone, whether they are medical needs or the exercise of their right to vote.141
India reaffirmed its statement later at the hearing.142
Mr President, India does not seek anything more onerous than the benchmark set by the Supreme Court of India, and some of these conditions were indicated by Italy’s counsel yesterday.
India needs to be assured that in case the Tribunal finds that India has jurisdiction, the presence of Sergeant Girone would be ensured. Towards that end, India would deem it necessary that the Tribunal itself fix these guarantees.143
Italy has given, and I now re-affirm before this Tribunal in the most solemn terms an undertaking that it will abide by any order of this Tribunal and that it will return Sergeant Girone to India if so required by an order of this Tribunal.145
a) Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.
b) The Arbitral Tribunal confirms Italy’s obligation to return Sergeant Girone to India in case the Arbitral Tribunal finds that India has jurisdiction over him in respect of the "Enrica Lexie" incident.
c) The Arbitral Tribunal decides that Italy and India each shall report to the Arbitral Tribunal on compliance with these provisional measures, and authorizes the President to seek information from the Parties if no such report is submitted within three months from the date of this Order and thereafter as he may consider appropriate.
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