162
any modification of his situation by India must be considered in breach to the ITLOS
Order 24 August 2015.
14
The above ‘freezing’ should include, in our opinion, even the undertaking
assumed by Italy in respect of the two marines—an undertaking to be considered
untouched and in force—“to return … to India following the final determination of
rights by the Annex VII tribunal, if this is required by the award of the tribunal”
(para. 118 ITLOS Order 24 August 2015), undertaking “placed on the record” by
ITLOS (par. 130 ITLOS Order 24 August 2015) and renewed in Italy’s Request
before the Annex VII Arbitral Tribunal as a “solemn undertaking to the effect that it
will comply with an award of the Annex VII Tribunal requiring the return of the
Marines to India” (para. 127) placed on the records also by the Arbitral Tribunal and
coupled with the affirmation that “these undertakings constitute an obligation binding upon Italy under international law” (para. 129) and that “there is no doubt as to
Italy’s good faith in complying with its undertaking” (para. 130).
15
5 Evaluation on the Question 5 Put at the End
of the Hearings
At the end of the hearings before the Annex VII Arbitral Tribunal five questions
were put to the parties. Two of them were intended to obtain clarification about
some affirmations made during the hearings (questions 1 and 4) and one was about
14 In the same terms see the Affidavit submitted to the Supreme Court of India on 7 December 2013:
“As such, any new proceedings before this Hon’ble Court in respect of Sergeant Latorre, including
any application to extend the time for Sergeant Latorre to remain in Italy, would be in breach of the
said Provisional Measures Order. The preclusion of any new proceedings by the ITLOS Provisional
Measures Order, however, cannot be understood to require that Sergeant Latorre be returned to
India notwithstanding his continuing health situation, the stay/deferment of the Indian proceedings, and the likely two to four year period of the pendency of the Annex VII arbitral proceedings.
This follows as a matter of good sense and a plain reading of the operative part of the Provisional
Measures Order”: Italy’s Request for the Prescription of Provisional Measures under article 290(1)
UNCLOS. See also in legal doctrine, for prospecting the problem Virzo (2015) and for the solution
prospected above in the text, although only as possible, Castellaneta (2015).
15 On this point see also, under the heading “Appropriate guarantees of return to India” in the AT
Order the following text: “In its Request, Italy made the following undertaking: Italy has offered,
and hereby renews, solemn undertakings to the effect that it will comply with an award of the
Annex VII Tribunal requiring the return of the Marines to India. At the hearing, the Agent for Italy
reaffirmed this undertaking before the Arbitral Tribunal by stating: Italy has given, and I now reaffirm before this Tribunal in the most solemn terms an undertaking that it will abide by any order
of this Tribunal and that it will return Sergeant Girone to India if so required by an order of this
Tribunal. The Arbitral Tribunal places on record the undertakings given by Italy and affirms that
these undertakings constitute an obligation binding upon Italy under international law. The Arbitral
Tribunal notes in this regard that, as the ICJ has held, once a State has made an undertaking as to
its conduct, ‘its good faith in complying’ with such an undertaking ‘is to be presumed’. In the present case, in the Arbitral Tribunal’s view, there is no doubt as to Italy’s good faith in complying with
its undertaking” (paras. 127–130).
A. Cannone
any modification of his situation by India must be considered in breach to the ITLOS
Order 24 August 2015.
14
The above ‘freezing’ should include, in our opinion, even the undertaking
assumed by Italy in respect of the two marines—an undertaking to be considered
untouched and in force—“to return … to India following the final determination of
rights by the Annex VII tribunal, if this is required by the award of the tribunal”
(para. 118 ITLOS Order 24 August 2015), undertaking “placed on the record” by
ITLOS (par. 130 ITLOS Order 24 August 2015) and renewed in Italy’s Request
before the Annex VII Arbitral Tribunal as a “solemn undertaking to the effect that it
will comply with an award of the Annex VII Tribunal requiring the return of the
Marines to India” (para. 127) placed on the records also by the Arbitral Tribunal and
coupled with the affirmation that “these undertakings constitute an obligation binding upon Italy under international law” (para. 129) and that “there is no doubt as to
Italy’s good faith in complying with its undertaking” (para. 130).
15
5 Evaluation on the Question 5 Put at the End
of the Hearings
At the end of the hearings before the Annex VII Arbitral Tribunal five questions
were put to the parties. Two of them were intended to obtain clarification about
some affirmations made during the hearings (questions 1 and 4) and one was about
14 In the same terms see the Affidavit submitted to the Supreme Court of India on 7 December 2013:
“As such, any new proceedings before this Hon’ble Court in respect of Sergeant Latorre, including
any application to extend the time for Sergeant Latorre to remain in Italy, would be in breach of the
said Provisional Measures Order. The preclusion of any new proceedings by the ITLOS Provisional
Measures Order, however, cannot be understood to require that Sergeant Latorre be returned to
India notwithstanding his continuing health situation, the stay/deferment of the Indian proceedings, and the likely two to four year period of the pendency of the Annex VII arbitral proceedings.
This follows as a matter of good sense and a plain reading of the operative part of the Provisional
Measures Order”: Italy’s Request for the Prescription of Provisional Measures under article 290(1)
UNCLOS. See also in legal doctrine, for prospecting the problem Virzo (2015) and for the solution
prospected above in the text, although only as possible, Castellaneta (2015).
15 On this point see also, under the heading “Appropriate guarantees of return to India” in the AT
Order the following text: “In its Request, Italy made the following undertaking: Italy has offered,
and hereby renews, solemn undertakings to the effect that it will comply with an award of the
Annex VII Tribunal requiring the return of the Marines to India. At the hearing, the Agent for Italy
reaffirmed this undertaking before the Arbitral Tribunal by stating: Italy has given, and I now reaffirm before this Tribunal in the most solemn terms an undertaking that it will abide by any order
of this Tribunal and that it will return Sergeant Girone to India if so required by an order of this
Tribunal. The Arbitral Tribunal places on record the undertakings given by Italy and affirms that
these undertakings constitute an obligation binding upon Italy under international law. The Arbitral
Tribunal notes in this regard that, as the ICJ has held, once a State has made an undertaking as to
its conduct, ‘its good faith in complying’ with such an undertaking ‘is to be presumed’. In the present case, in the Arbitral Tribunal’s view, there is no doubt as to Italy’s good faith in complying with
its undertaking” (paras. 127–130).
A. Cannone