Marines case: Some judges feel order is one-sided

Six of the 21 judges in the International Tribunal for the Law of the Sea (ITLOS) hearing the Italian marines case on Monday dissented with the majority order.

One of the judges, P Chandrasekhara Rao, said the measure prescribed in the order is “entirely one-sided and not well-founded in law”.

Rao’s views were supported by another dissenting judge Anthony Amos Lucky, who said he also “read the draft dissent note” of Rao and “agrees with the views expressed therein.”

Disagreeing with the ITLOS decision, mainly on the question of the need in this case for prescription of provisional measures, Rao said in his dissent note: “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.”

However, Home Ministry officials have described the order as a setback for Italy as it did not allow an accused Italian marine go home from despite a strong plea.

Rao did not find any merit in Italy taking the case to ITLOS. He said this case has been pending in Indian courts for nearly three-and-a-half years and Italy and marines have filed a number of petitions to slow down the legal process and thereby delay the criminal trial.

On their petition, he noted, that the Supreme Court stayed the trial proceedings before the special court, which was constituted to try the case expeditiously.

“There was thus no prospect of imminent criminal proceedings against the two marines,” he said as he questioned a marine withdrawing his complaint in December 2014. “How can Italy argue that there is a situation of urgency regarding Sergeant (Salvatore) Girone as of July 21, 2015, when he had unilaterally withdrawn a petition in the Supreme Court for the relaxation of his bail in December 2014?” he asked.

Judge Lucky stated in his dissent note: “it would be going too far to say that until the arbitral tribunal is constituted and hears the matter, there is no compelling assumption that the matter will be taken up and that there will be an adverse decision against them.”