New Delhi: After Italy took the case of its two Italian Marines, facing criminal prosecution in India for the murder of two fishermen of Kerala off the coast of Kerala in February 2012, to the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, the Supreme Court suspended hearings in the case until January, paving the way for the setting up of a five-member Annex VII Arbitral Tribunal that will give a final ruling in the dispute, negotiations for which will begin between the two countries shortly.
The Annex VII Arbitral Tribunal — under the United Nations Convention on the Law of the Sea (UNCLOS) — will give a final decision, binding on Italy and India, about which of the two countries can exercise criminal jurisdiction over the marines.
Sources indicated that India had nominated ITLOS judge P Chandrasekhara Rao as its nominee for the Annex VII tribunal. Italy will nominate one member and the remaining three will be decided by negotiations. In case of no finality between the two countries in regard to the remaining three, the president of ITLOS will decide who the other three members will be. The entire process could take around a month.
The ITLOS decisions pronounced on August 24 were taken by 15 votes against 6, its order stated. Rao was a dissenting member of the ITLOS. He has been a member of ITLOS since October 1996, and had also served as the tribunal’s president from 1999 to 2002.
“The record in this case shows that there is absolutely no ‘real and imminent risk’ that irreparable prejudice will be caused to Italy’s rights before the Annex VII Arbitral Tribunal would be able to deal with the case. In view of the above, there is no urgency such as that required to justify the exercise of the power to prescribe provisional measures,” he wrote in his dissenting opinion. Though it appears that the measure prescribed by the Tribunal is addressed to both parties, it is actually addressed only to India. The measure prescribed by the Tribunal in this case is entirely one-sided and is not well-founded in law”, Rao said in his dissent note.
