UN court rejects Italy’s appeal, halts Indian trial
Depending on how you spin it, the UN-mandated international court's order in the 2012 Italian Marines’ case can be viewed as a ‘victory' for both India and Italy, when in fact, it is a balanced response that takes a cautious middle line on the issue. Italy had approached the tribunal in July, requesting two provisional measures: First, refrain India from exercising jurisdiction or taking any legal or administrative measure in the case, and second, order India to lift restrictions on the movements of the two Marines (one of whom is in India and the other in Italy) so that both men can be in their home country for the duration of the trial.
The tribunal found both to be inappropriate, as they are directly linked to the merits of the case, which will be heard by a different judicial body. However, the tribunal also decided that continued judicial proceedings could prejudice the legal outcome of the case, as and when it comes up for hearing before the main arbitral court. This court will be constituted on the basis of Annex VII to the United Nations Convention on the law of the Sea — the provision under which Italy initiated proceedings against India in June. However, till such time as the final court is constituted, the disputing parties can seek (as Italy did) provisional measures or relief, under Article 290, Paragraph 5 of the UNClOS, in urgent situations where there is a “real and imminent risk that irreparable prejudice” may be caused.
This is where the International Tribunal for the law of the Sea, which issued Monday's order, comes into action. Based in Hamburg, Germany, the ITlOS is an independent judicial body, with 21 judges from different countries, hearing disputes arising out of the UNClOS. Notably, six of these judges, including India's Chandrasekhara Rao, issued a dissenting opinion on Monday, arguing that there was no pressing need for the ITlOS to take any provisional measure and also that the decision to halt all domestic proceedings was indirectly targeted against India, since there are no legal proceedings underway in Italy.
The situation, as it stands now, is this: India has suspended all domestic proceedings while the Marines will remain where they are — Sergeant Salvatore Girone at the Italian Ambassador's residence in New Delhi and Sergeant Massimiliano latorre in Italy, where he is undergoing medical treatment. The next step will be before the Arbitral Tribunal, which may or may not allow for the resumption of domestic proceedings, depending on how it decides on the issue of Indian jurisdiction. Italy took the case to the international authorities earlier this year after being disappointed by the inordinate amount of time the case was taking to be resolved within the Indian system. While there is no doubt that there was much dilly-dallying on the Indian side, Italy also used every trick in the book to delay the judicial process, even as the Marines enjoyed highly favourable treatment, rarely made available to others accused of murder.