113
that three and a half years had passed since the Italian marines were arrested.
Nonetheless, an application for provisional measures was not filed by the Italian
Government during this period. Furthermore, an application was not made to India
to extradite the marines to face trial in Italy.
32
Judge Lucky thus considered that the
matter is not urgent.
33
Judge Lucky’s view seems to be shared by Judge Chandrasekhara Rao.
34
As
Judge Rao observed, the “Enrica Lexie” Incident case has been pending in Indian
courts for nearly three-and-a-half years.
35
“If the case was being litigated in the
Indian courts for nearly three-and-a half years and Italy had not deemed there to be
any ‘urgency’ in terms of article 290, paragraph 5, of the Convention”, the learned
judge asked, “what happened suddenly to justify its request on grounds of
‘urgency’?”
36
Judge Rao also indicated that Sergeant Girone already withdrew his
application in the Supreme Court seeking to relax bail conditions thereby enabling
him to travel to Italy in December 2014.
37
Judge Rao thus took the view that there
was no urgency such as that required to justify the exercise of the power to prescribe
provisional measures.
38
Likewise Judge Bouguetaia, Vice-President of ITLOS,
39
Judge Kateka,
40
and Judge Ndiaye also denied the existence of urgency in the
“Enrica Lexie” Incident case.
41
Judge Heider discussed the requirement of urgency in some detail. In this regard,
Judge Heider specified two dimensions of the requirement of urgency: qualitative
dimension and temporal dimension. First, concerning the qualitative dimension,
Judge Heider linked the requirement of urgency to the existence of a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in
dispute. Second, with regard to the temporal dimension, Judge Heider highlighted
the difference between paragraph 1 and paragraph 5 of Art. 290. In the case of provisional measures under Art. 290(1), these measures are to apply pending the final
decision. This means that the relevant time period is typically more than 1 year.
Under Art. 290(5), however, any provisional measures shall apply only pending the
constitution of an arbitral tribunal to which a dispute is being submitted. It is suggested that the relevant time period is a few months from the adoption of the order.
It follows that the temporal dimension of the requirement of urgency is much more
stringent under paragraph 5 of Art. 290 than under paragraph 1 thereof. By combining the qualitative and temporal dimensions, Judge Heider considered that the
Tribunal’s task is to determine whether there is a real risk that irreparable prejudice
32 Ibidem, Dissenting Opinion of Judge Lucky, para. 56.
33 Ibidem, paras 58 and 61.
34 Ibidem, Dissenting Opinion of Judge Chandrasekhara Rao, paras 6 and 12–13.
35 Ibidem, para. 9.
36 Ibidem, para. 13.
37 Ibidem, para. 22.
38 Ibidem, para. 25.
39 Ibidem, Dissenting Opinion of Judge Bouguetaia, para. 19.
40 Ibidem, Declaration of Judge Kateka, paras 4–6.
41 Ibidem, Dissenting Opinion of Judge Ndiaye, para. 35.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…
that three and a half years had passed since the Italian marines were arrested.
Nonetheless, an application for provisional measures was not filed by the Italian
Government during this period. Furthermore, an application was not made to India
to extradite the marines to face trial in Italy.
32
Judge Lucky thus considered that the
matter is not urgent.
33
Judge Lucky’s view seems to be shared by Judge Chandrasekhara Rao.
34
As
Judge Rao observed, the “Enrica Lexie” Incident case has been pending in Indian
courts for nearly three-and-a-half years.
35
“If the case was being litigated in the
Indian courts for nearly three-and-a half years and Italy had not deemed there to be
any ‘urgency’ in terms of article 290, paragraph 5, of the Convention”, the learned
judge asked, “what happened suddenly to justify its request on grounds of
‘urgency’?”
36
Judge Rao also indicated that Sergeant Girone already withdrew his
application in the Supreme Court seeking to relax bail conditions thereby enabling
him to travel to Italy in December 2014.
37
Judge Rao thus took the view that there
was no urgency such as that required to justify the exercise of the power to prescribe
provisional measures.
38
Likewise Judge Bouguetaia, Vice-President of ITLOS,
39
Judge Kateka,
40
and Judge Ndiaye also denied the existence of urgency in the
“Enrica Lexie” Incident case.
41
Judge Heider discussed the requirement of urgency in some detail. In this regard,
Judge Heider specified two dimensions of the requirement of urgency: qualitative
dimension and temporal dimension. First, concerning the qualitative dimension,
Judge Heider linked the requirement of urgency to the existence of a real and imminent risk that irreparable prejudice may be caused to the rights of the parties in
dispute. Second, with regard to the temporal dimension, Judge Heider highlighted
the difference between paragraph 1 and paragraph 5 of Art. 290. In the case of provisional measures under Art. 290(1), these measures are to apply pending the final
decision. This means that the relevant time period is typically more than 1 year.
Under Art. 290(5), however, any provisional measures shall apply only pending the
constitution of an arbitral tribunal to which a dispute is being submitted. It is suggested that the relevant time period is a few months from the adoption of the order.
It follows that the temporal dimension of the requirement of urgency is much more
stringent under paragraph 5 of Art. 290 than under paragraph 1 thereof. By combining the qualitative and temporal dimensions, Judge Heider considered that the
Tribunal’s task is to determine whether there is a real risk that irreparable prejudice
32 Ibidem, Dissenting Opinion of Judge Lucky, para. 56.
33 Ibidem, paras 58 and 61.
34 Ibidem, Dissenting Opinion of Judge Chandrasekhara Rao, paras 6 and 12–13.
35 Ibidem, para. 9.
36 Ibidem, para. 13.
37 Ibidem, para. 22.
38 Ibidem, para. 25.
39 Ibidem, Dissenting Opinion of Judge Bouguetaia, para. 19.
40 Ibidem, Declaration of Judge Kateka, paras 4–6.
41 Ibidem, Dissenting Opinion of Judge Ndiaye, para. 35.
The Requirement of Urgency in the Jurisprudence of ITLOS Concerning Provisional…