112
(b) 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 to and
remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.
25
Even though ITLOS, in its Order of 2015, declined to prescribe provisional measures with regard to the situation of two marines, the Tribunal prescribed its own
provisional measures as follows:
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.
26
Yet, ITLOS offered scant explanation about the existence of the urgency of the
situation.
27
Several members of the Tribunal addressed the existence of the urgency of the
situation in the “Enrica Lexie” Incident case. Some advocated the existence of the
urgency of the situation in this case. For instance, by referring to the M/V “Saiga”
(No.2), the M/V “Louisa”, and the “Arctic Sunrise” cases, Judge ad hoc Francioni
stated that the Tribunal had always considered situations of deprivation of personal
liberty as matters of urgency.
28
Thus Judge ad hoc Francioni concluded that: “[T]he
urgency of the situation is manifest”.
29
This view was supported by Judge Jesus. Notably Judge Jesus linked the requirement of urgency to the considerations of humanity.
30
The learned judge thus took the
view that:
[I]n the present case the urgency requirement was satisfied and this would have justified the
imposition of provisional measures by the Tribunal, releasing the two marines from the
detention or restrictions on movement that have been imposed on them by the Indian
courts.
31
In contrast, some members of ITLOS denied the existence of the urgency of the
situation in the “Enrica Lexie” Incident case. For instance, Judge Lucky indicated
25 The “Enrica Lexie” Incident, Order, para. 29. The two Italian marines were authorised to travel
to Italy temporality during Christmas vacation in 2012 and in the Italian elections in February
2013. Written Observations of India, Vol. 1, 6 August 2015, p. 5, para. 1.14. Sergeant Latorre was
granted a relaxation of the conditions of bail by the Supreme Court in September 2014 to return to
Italy for an initial period of 4 months, which has been subsequently extended: In the Dispute
Concerning the Enrica Lexie Incident, Italy v. India, Notification under Article 287 and Annex VII,
Article 1 of UNCLOS and Statement of Claim and Grounds on Which It Is Based, 26th June 2015,
p. 7, para. 21.
26 The “Enrica Lexie” Incident, Order, paras 127 and 141(1).
27 Ibidem, Declaration of Judge Kateka, paras 4–5.
28 Ibidem, Declaration of Judge ad hoc Francioni, para. 23.
29 Ibidem, para. 22.
30 Ibidem, Separate Opinion of Judge Jesus, para. 11. The inter-linkage between the requirement of
urgency and the concept of consideration of humanity will be discussed in Sect. 3.3 of this
article.
31 Ibidem, para. 12.
Y. Tanaka
(b) 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 to and
remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.
25
Even though ITLOS, in its Order of 2015, declined to prescribe provisional measures with regard to the situation of two marines, the Tribunal prescribed its own
provisional measures as follows:
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.
26
Yet, ITLOS offered scant explanation about the existence of the urgency of the
situation.
27
Several members of the Tribunal addressed the existence of the urgency of the
situation in the “Enrica Lexie” Incident case. Some advocated the existence of the
urgency of the situation in this case. For instance, by referring to the M/V “Saiga”
(No.2), the M/V “Louisa”, and the “Arctic Sunrise” cases, Judge ad hoc Francioni
stated that the Tribunal had always considered situations of deprivation of personal
liberty as matters of urgency.
28
Thus Judge ad hoc Francioni concluded that: “[T]he
urgency of the situation is manifest”.
29
This view was supported by Judge Jesus. Notably Judge Jesus linked the requirement of urgency to the considerations of humanity.
30
The learned judge thus took the
view that:
[I]n the present case the urgency requirement was satisfied and this would have justified the
imposition of provisional measures by the Tribunal, releasing the two marines from the
detention or restrictions on movement that have been imposed on them by the Indian
courts.
31
In contrast, some members of ITLOS denied the existence of the urgency of the
situation in the “Enrica Lexie” Incident case. For instance, Judge Lucky indicated
25 The “Enrica Lexie” Incident, Order, para. 29. The two Italian marines were authorised to travel
to Italy temporality during Christmas vacation in 2012 and in the Italian elections in February
2013. Written Observations of India, Vol. 1, 6 August 2015, p. 5, para. 1.14. Sergeant Latorre was
granted a relaxation of the conditions of bail by the Supreme Court in September 2014 to return to
Italy for an initial period of 4 months, which has been subsequently extended: In the Dispute
Concerning the Enrica Lexie Incident, Italy v. India, Notification under Article 287 and Annex VII,
Article 1 of UNCLOS and Statement of Claim and Grounds on Which It Is Based, 26th June 2015,
p. 7, para. 21.
26 The “Enrica Lexie” Incident, Order, paras 127 and 141(1).
27 Ibidem, Declaration of Judge Kateka, paras 4–5.
28 Ibidem, Declaration of Judge ad hoc Francioni, para. 23.
29 Ibidem, para. 22.
30 Ibidem, Separate Opinion of Judge Jesus, para. 11. The inter-linkage between the requirement of
urgency and the concept of consideration of humanity will be discussed in Sect. 3.3 of this
article.
31 Ibidem, para. 12.
Y. Tanaka