155
© Springer Nature Switzerland AG 2019
A. Del Vecchio, R. Virzo (eds.), Interpretations of the United Nations
Convention on the Law of the Sea by International Courts and Tribunals,
https://doi.org/10.1007/978-3-030-10773-4_10
The Provisional Measures in The “Enrica
Lexie” Incident Case
Andrea Cannone
Abstract The analysis of the comprehensive situation of the duties of the parties to
the dispute resulting from the two orders on provisional measures adopted by the
International Tribunal for the Law of the Sea (ITLOS) and by the Annex VII arbitral
tribunal (Annex VII AT) discloses also the implicit confirmation by the latter tribunal
of the provisional measures adopted by ITLOS and moreover, as for marine Latorre,
not mentioned in the second order, the identical legal positions of Sergeant Girone.
The Annex VII AT Order discloses in the provisional phase the attitude, typical of
the international mediation, of seeking a solutions acceptable by both parties and the
reference to considerations of humanity as a proper legal criterion, put in evidence
in the operative provisions. As for the application of the international rules on functional immunity invoked by Italy and contested by India in the two provisional proceedings, in the light of the case law of recent arbitral decisions can be reasonably
expected that in its final decision the arbitral tribunal, in applying Art. 293 of the UN
1982 Convention on the Law of the Sea, will take into consideration those rules.
1 The Orders on Provisional Measures in The “Enrica
Lexie” Incident Case
In The “Enrica Lexie” Incident case two orders on provisional measures have been
rendered; the first by the International Tribunal for the Law of the Sea (ITLOS) on
24 August 2015 pending the constitution of the Annex VII Arbitral Tribunal (AT) in
application of Art. 290(5) of the 1982 United Nations Convention on the Law of the
Sea (UNCLOS).
1
In the decision, adopted by 15 votes to 6, ITLOS prescribes,
1 ITLOS, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order, 24 August
2015. Hereinafter, ITLOS Order. For a short comment see Cannone (2015).
A. Cannone (*)
University of Bari Aldo Moro, Department of Law, Bari, Italy
e-mail: andrea.cannone@uniba.it
© Springer Nature Switzerland AG 2019
A. Del Vecchio, R. Virzo (eds.), Interpretations of the United Nations
Convention on the Law of the Sea by International Courts and Tribunals,
https://doi.org/10.1007/978-3-030-10773-4_10
The Provisional Measures in The “Enrica
Lexie” Incident Case
Andrea Cannone
Abstract The analysis of the comprehensive situation of the duties of the parties to
the dispute resulting from the two orders on provisional measures adopted by the
International Tribunal for the Law of the Sea (ITLOS) and by the Annex VII arbitral
tribunal (Annex VII AT) discloses also the implicit confirmation by the latter tribunal
of the provisional measures adopted by ITLOS and moreover, as for marine Latorre,
not mentioned in the second order, the identical legal positions of Sergeant Girone.
The Annex VII AT Order discloses in the provisional phase the attitude, typical of
the international mediation, of seeking a solutions acceptable by both parties and the
reference to considerations of humanity as a proper legal criterion, put in evidence
in the operative provisions. As for the application of the international rules on functional immunity invoked by Italy and contested by India in the two provisional proceedings, in the light of the case law of recent arbitral decisions can be reasonably
expected that in its final decision the arbitral tribunal, in applying Art. 293 of the UN
1982 Convention on the Law of the Sea, will take into consideration those rules.
1 The Orders on Provisional Measures in The “Enrica
Lexie” Incident Case
In The “Enrica Lexie” Incident case two orders on provisional measures have been
rendered; the first by the International Tribunal for the Law of the Sea (ITLOS) on
24 August 2015 pending the constitution of the Annex VII Arbitral Tribunal (AT) in
application of Art. 290(5) of the 1982 United Nations Convention on the Law of the
Sea (UNCLOS).
1
In the decision, adopted by 15 votes to 6, ITLOS prescribes,
1 ITLOS, The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, Order, 24 August
2015. Hereinafter, ITLOS Order. For a short comment see Cannone (2015).
A. Cannone (*)
University of Bari Aldo Moro, Department of Law, Bari, Italy
e-mail: andrea.cannone@uniba.it