161
As we have seen, the provisional “arrangement” resulting from the orders
adopted by ITLOS and the Annex VII Arbitral Tribunal in The “Enrica Lexie”
Incident case consists essentially in the obligation of both parties to suspend all
court proceedings and to 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 possible decision of the Arbitral Tribunal and
the obligation of both parties to cooperate, included in proceedings before the
Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant
Girone so as to give effect to the concept of considerations of humanity, so that
Sergeant Girone, while remaining under the authority of the Supreme Court of
India, may return to Italy during the arbitration proceedings; this obligation is
matched with the confirmation made by the Arbitral Tribunal of Italy’s unilaterally
assumed obligation to send Sergeant Girone to India again (literally “to return”)
should the arbitral tribunal find India’s jurisdiction over him in respect of The
“Enrica Lexie” Incident.
Notwithstanding the absence in the Annex VII Arbitral Tribunal Order of any
express statement about the provisional measures previously adopted by the ITLOS
through the confirmation cited in Art. 290(5) last sentence UNCLOS, they are
implicitly confirmed as results, for instance, in para. 107 of the Arbitral Tribunal
Order: “… As a result of the ITLOS Order of 24 August 2015, court proceedings are
suspended, and new proceedings may not be initiated, so that there would appear to
be no legal interest in Sergeant Girone’s physical presence in India.” (italics added).
It must be added that such a solution is found even in the Arctic Sunrise case as
previously cited.
4 The Situation of Marine Latorre
Even if not mentioned in the AT Order 29 April 2016, the situation of marine Latorre
staying in Italy must be considered as ‘frozen’; he is, as a matter of fact, in the same
position as sergeant Girone (i.e. subject to the Indian jurisdiction). Consequently
periodic reports and information on compliance with the provisional measure affirmed and recommendations made by the Tribunal in Order No. 3 of 24 June 2003, pursuant to paragraph 1(d) of
the Dispositif of the Tribunal’s Order No. 4 of 14 November 2003, is suspended until further
notice; b. the obligation on Ireland to submit periodic reports on developments in the proceedings
before the European Court of Justice, pursuant to paragraph 1(e) of the Dispositif of the Tribunal’s
Order No. 4 of 14 November 2003, is suspended until further notice; c. the Tribunal shall remain
seized of the dispute”. PCA, MOX Plant Case (Ireland v. United Kingdom), Order n. 6—
Termination of proceedings, 6 June 2008: “The Arbitral Tribunal … 1. Decides to place on record
the withdrawal by Ireland of the claim made by it against the United Kingdom in the MOX Plant
case; … 4. Decides that these proceedings are terminated”.
The Provisional Measures in The “Enrica Lexie” Incident Case
As we have seen, the provisional “arrangement” resulting from the orders
adopted by ITLOS and the Annex VII Arbitral Tribunal in The “Enrica Lexie”
Incident case consists essentially in the obligation of both parties to suspend all
court proceedings and to 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 possible decision of the Arbitral Tribunal and
the obligation of both parties to cooperate, included in proceedings before the
Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant
Girone so as to give effect to the concept of considerations of humanity, so that
Sergeant Girone, while remaining under the authority of the Supreme Court of
India, may return to Italy during the arbitration proceedings; this obligation is
matched with the confirmation made by the Arbitral Tribunal of Italy’s unilaterally
assumed obligation to send Sergeant Girone to India again (literally “to return”)
should the arbitral tribunal find India’s jurisdiction over him in respect of The
“Enrica Lexie” Incident.
Notwithstanding the absence in the Annex VII Arbitral Tribunal Order of any
express statement about the provisional measures previously adopted by the ITLOS
through the confirmation cited in Art. 290(5) last sentence UNCLOS, they are
implicitly confirmed as results, for instance, in para. 107 of the Arbitral Tribunal
Order: “… As a result of the ITLOS Order of 24 August 2015, court proceedings are
suspended, and new proceedings may not be initiated, so that there would appear to
be no legal interest in Sergeant Girone’s physical presence in India.” (italics added).
It must be added that such a solution is found even in the Arctic Sunrise case as
previously cited.
4 The Situation of Marine Latorre
Even if not mentioned in the AT Order 29 April 2016, the situation of marine Latorre
staying in Italy must be considered as ‘frozen’; he is, as a matter of fact, in the same
position as sergeant Girone (i.e. subject to the Indian jurisdiction). Consequently
periodic reports and information on compliance with the provisional measure affirmed and recommendations made by the Tribunal in Order No. 3 of 24 June 2003, pursuant to paragraph 1(d) of
the Dispositif of the Tribunal’s Order No. 4 of 14 November 2003, is suspended until further
notice; b. the obligation on Ireland to submit periodic reports on developments in the proceedings
before the European Court of Justice, pursuant to paragraph 1(e) of the Dispositif of the Tribunal’s
Order No. 4 of 14 November 2003, is suspended until further notice; c. the Tribunal shall remain
seized of the dispute”. PCA, MOX Plant Case (Ireland v. United Kingdom), Order n. 6—
Termination of proceedings, 6 June 2008: “The Arbitral Tribunal … 1. Decides to place on record
the withdrawal by Ireland of the claim made by it against the United Kingdom in the MOX Plant
case; … 4. Decides that these proceedings are terminated”.
The Provisional Measures in The “Enrica Lexie” Incident Case