168
issue of jurisdiction and cannot be decided by the Tribunal at the stage of provisional measures” (para. 113) thus excluding the decision but admitting that “the
question of the status of the two Marines relates to the issue of jurisdiction” (italics
added). The same conclusion on the ‘related question’ is adopted in the Annex VII
Arbitral Tribunal Order 24 September 2016 where it is stated that “the decision as
to which of the States may exercise jurisdiction, and the related question of Sergeant
Girone’s entitlement to immunity, remain to be decided when the Arbitral Tribunal
considers the merits of the case” (para. 103).
32
The admitted existence of a ‘related question’ in the quoted decisions that have
made references to the ‘relevant context’ or to the possible ‘interaction of the
Convention with another instrument or body of law’ may reasonably lead, in our
opinion, to the conclusion that the Annex VII Arbitral Tribunal, in deciding the present dispute between Italy and India concerning the interpretation and application of
the Convention, can apply also the set of rules on functional immunity as Art. 293
UNCLOS allows.
33
8 Concluding Remarks
We may consider as principal conclusions drawn in this Chapter the following
points.
The comprehensive situation of the duties of the parties to the dispute deriving
from ITLOS and AT Orders on provisional measures consists (a) in the obligation
of both parties to suspend all court proceedings and to refrain from initiating new
ones and (b) in the obligation of both parties to cooperate in achieving, for considerations of humanity, a relaxation of the bail conditions of Sergeant Girone allowing
his return to Italy during the arbitration proceedings remaining under the authority
of the Supreme Court of India; this obligation is coupled with the confirmation
made by the Arbitral Tribunal of Italy’s unilaterally assumed obligation to send
Sergeant Girone to India again should the Arbitral Tribunal find India’s jurisdiction
32 This is the complete text of para. 103: “In deciding how to preserve Italy’s rights, the Arbitral
Tribunal is mindful of the fact that in the current situation Sergeant Girone is under India’s authority alone, although the decision as to which of the States may exercise jurisdiction, and the related
question of Sergeant Girone’s entitlement to immunity, remain to be decided when the Arbitral
Tribunal considers the merits of the case”.
33 For a more restrictive approach to the applicable law in the settlement of disputes concerning the
interpretation or application of UNCLOS see Boyle (2014) pp. 201ff; Palmisano (2014), though
expressing doubts for applying Art. 97 UNCLOS in the dispute between Italy and India, he does
not exclude that via Art. 293 UNCLOS the Annex VII arbitral tribunal may consider the topic of
the violation of the functional immunity of the organs of foreign States. On the opposite is asserted
that: “the criminal incident in the waters of the EEZ does attract the applicability of the international law regime. The international law under the UNCLOS, the international customary law
applicable and the state practice provide for the flag states’ jurisdiction in case of such an incident.
Therefore, India’s claim of jurisdiction over the Italian marines is unlikely to be upheld”: Kumar
Raha and Raju (2016), p. 238.
A. Cannone
issue of jurisdiction and cannot be decided by the Tribunal at the stage of provisional measures” (para. 113) thus excluding the decision but admitting that “the
question of the status of the two Marines relates to the issue of jurisdiction” (italics
added). The same conclusion on the ‘related question’ is adopted in the Annex VII
Arbitral Tribunal Order 24 September 2016 where it is stated that “the decision as
to which of the States may exercise jurisdiction, and the related question of Sergeant
Girone’s entitlement to immunity, remain to be decided when the Arbitral Tribunal
considers the merits of the case” (para. 103).
32
The admitted existence of a ‘related question’ in the quoted decisions that have
made references to the ‘relevant context’ or to the possible ‘interaction of the
Convention with another instrument or body of law’ may reasonably lead, in our
opinion, to the conclusion that the Annex VII Arbitral Tribunal, in deciding the present dispute between Italy and India concerning the interpretation and application of
the Convention, can apply also the set of rules on functional immunity as Art. 293
UNCLOS allows.
33
8 Concluding Remarks
We may consider as principal conclusions drawn in this Chapter the following
points.
The comprehensive situation of the duties of the parties to the dispute deriving
from ITLOS and AT Orders on provisional measures consists (a) in the obligation
of both parties to suspend all court proceedings and to refrain from initiating new
ones and (b) in the obligation of both parties to cooperate in achieving, for considerations of humanity, a relaxation of the bail conditions of Sergeant Girone allowing
his return to Italy during the arbitration proceedings remaining under the authority
of the Supreme Court of India; this obligation is coupled with the confirmation
made by the Arbitral Tribunal of Italy’s unilaterally assumed obligation to send
Sergeant Girone to India again should the Arbitral Tribunal find India’s jurisdiction
32 This is the complete text of para. 103: “In deciding how to preserve Italy’s rights, the Arbitral
Tribunal is mindful of the fact that in the current situation Sergeant Girone is under India’s authority alone, although the decision as to which of the States may exercise jurisdiction, and the related
question of Sergeant Girone’s entitlement to immunity, remain to be decided when the Arbitral
Tribunal considers the merits of the case”.
33 For a more restrictive approach to the applicable law in the settlement of disputes concerning the
interpretation or application of UNCLOS see Boyle (2014) pp. 201ff; Palmisano (2014), though
expressing doubts for applying Art. 97 UNCLOS in the dispute between Italy and India, he does
not exclude that via Art. 293 UNCLOS the Annex VII arbitral tribunal may consider the topic of
the violation of the functional immunity of the organs of foreign States. On the opposite is asserted
that: “the criminal incident in the waters of the EEZ does attract the applicability of the international law regime. The international law under the UNCLOS, the international customary law
applicable and the state practice provide for the flag states’ jurisdiction in case of such an incident.
Therefore, India’s claim of jurisdiction over the Italian marines is unlikely to be upheld”: Kumar
Raha and Raju (2016), p. 238.
A. Cannone