157
Girone because, given the ITLOS Order of 24 August 2015, “court proceedings are
suspended, and new proceedings may not be initiated, there would appear to be no
legal interest in Sergeant Girone’s physical presence in India” (again para. 107) and
because the said alleviating of bail conditions assorted “[w]ith appropriate guarantees of return” (like, the binding undertaking repeatedly assumed by Italy to that
effect) “should this Arbitral Tribunal find in India’s favour on the merits” does not
imply any “material change” for India (para. 108).
Regarding the argument also prospected by Italy on the request for Sergeant
Girone’s bail conditions on breaches of due process in the Indian investigations and
subsequent criminal proceedings against the two marines (Articles 9(2) and 14(3)
International Covenant on Civil and Political Rights) (ICCPR) the Arbitral Tribunal,
having noted that in the phase of provisional measures where it exercises prima
facie jurisdiction “it should avoid engaging with questions of wrongfulness of past
conduct unless this is absolutely necessary” and having decided that Sergeant
Girone’s bail condition must be relaxed permitting his return to Italy during the
arbitral procedure, concluded that “is not necessary to consider questions relating to
the lawfulness of his detention” specifying that the situation under examination “is
characterized by the prospect of prolonged social isolation of the Sergeant” pending
the arbitral proceedings and “there should be no undue restraint on individuals as a
result of extended arbitration proceedings between States” (paras. 118–119).
2 The prima facie Jurisdiction and the Jurisdiction
of the Arbitral Tribunal
In the provisional measures proceedings before the Annex VII Arbitral Tribunal,
about the prima facie jurisdiction, both in the written and the oral phases India has
decided not to repeat the objection presented before the ITLOS; in particular in the
oral phase it has declared that it “does not intend to second, guess or seek to modify
the Law of the Sea Tribunal’s conclusions” on this point (para. 51). Consequently
the Arbitral Tribunal plainly concluded that “prima facie it has jurisdiction over the
dispute” (para. 55).
Nevertheless, under the Rules of Procedure adopted by the Annex VII Arbitral
Tribunal, India may object to the jurisdiction or the admissibility of any claim (a) if
as addressed as a preliminary matter (as soon as possible but not later than 3 months
after the submission of the Memorial to be presented by Italy before 16 September
2016), (b) in all other circumstances, not later than the date of the submission of the
Counter-Memorial by India (i.e. not later than 31 march 2017), or (c) with the leave
of the Arbitral Tribunal, in circumstances in which Italy proposes to raise an objection to a claim made in the Rejoinder to be made by India (Art. 10(2) Rules of
Procedure).
The Provisional Measures in The “Enrica Lexie” Incident Case
Girone because, given the ITLOS Order of 24 August 2015, “court proceedings are
suspended, and new proceedings may not be initiated, there would appear to be no
legal interest in Sergeant Girone’s physical presence in India” (again para. 107) and
because the said alleviating of bail conditions assorted “[w]ith appropriate guarantees of return” (like, the binding undertaking repeatedly assumed by Italy to that
effect) “should this Arbitral Tribunal find in India’s favour on the merits” does not
imply any “material change” for India (para. 108).
Regarding the argument also prospected by Italy on the request for Sergeant
Girone’s bail conditions on breaches of due process in the Indian investigations and
subsequent criminal proceedings against the two marines (Articles 9(2) and 14(3)
International Covenant on Civil and Political Rights) (ICCPR) the Arbitral Tribunal,
having noted that in the phase of provisional measures where it exercises prima
facie jurisdiction “it should avoid engaging with questions of wrongfulness of past
conduct unless this is absolutely necessary” and having decided that Sergeant
Girone’s bail condition must be relaxed permitting his return to Italy during the
arbitral procedure, concluded that “is not necessary to consider questions relating to
the lawfulness of his detention” specifying that the situation under examination “is
characterized by the prospect of prolonged social isolation of the Sergeant” pending
the arbitral proceedings and “there should be no undue restraint on individuals as a
result of extended arbitration proceedings between States” (paras. 118–119).
2 The prima facie Jurisdiction and the Jurisdiction
of the Arbitral Tribunal
In the provisional measures proceedings before the Annex VII Arbitral Tribunal,
about the prima facie jurisdiction, both in the written and the oral phases India has
decided not to repeat the objection presented before the ITLOS; in particular in the
oral phase it has declared that it “does not intend to second, guess or seek to modify
the Law of the Sea Tribunal’s conclusions” on this point (para. 51). Consequently
the Arbitral Tribunal plainly concluded that “prima facie it has jurisdiction over the
dispute” (para. 55).
Nevertheless, under the Rules of Procedure adopted by the Annex VII Arbitral
Tribunal, India may object to the jurisdiction or the admissibility of any claim (a) if
as addressed as a preliminary matter (as soon as possible but not later than 3 months
after the submission of the Memorial to be presented by Italy before 16 September
2016), (b) in all other circumstances, not later than the date of the submission of the
Counter-Memorial by India (i.e. not later than 31 march 2017), or (c) with the leave
of the Arbitral Tribunal, in circumstances in which Italy proposes to raise an objection to a claim made in the Rejoinder to be made by India (Art. 10(2) Rules of
Procedure).
The Provisional Measures in The “Enrica Lexie” Incident Case