I marò and International Arbitration

29/07/15

After more than two years of silence and political and diplomatic initiatives characterized by a constant respect for an inattentive and arrogant India in dealing with the affair of the two marines, suddenly we return to the past with the start of the procedure of international arbitration ready as of 11 March 2013, as announced on the 18th of the same month by a press release from the Government.

A fundamental act to unravel the intricate skein, prepared through a careful diplomatic action of the then Minister Terzi, to which, however, was not given course by decision of the President of the Council of the moment.

Now we are returning to the past but with a considerable delay and after having granted India ample room for maneuver on the legal level. First of all, the compensation to the families of the two poor Indian fishermen granted with wide media coverage by the then Minister of Defense Di Paola followed by the almost constant presence of the representative of the Italian government dr. De Mistura and Ambassador Mancini in the Indian Courts on the occasion of numerous hearings. Messages certainly interpreted by the Indian counterpart as admissions of Italian responsibility and recognition of the Delhi legal action. Formal acts also followed by important objective initiatives that have dragged on over the months without any result, such as Boninian's ?? secret diplomacy ?? which has remained such and, in recent months, intelligence activities have not been better clarified, which have also failed miserably .

Time has passed inexorably for India's benefit by offering Delhi the opportunity to reclaim nonexistent rights. Last but not least, the recent statement by the Indian Attorney General PS Narshima who anticipated that in the next hearing on 10 August before the Court of Hamburg (Itlos) ?? we will challenge the Court of 'Itlos its own jurisdiction (ownership to decide, ed) because only India has the jurisdiction to prosecute crimes in the country? and ?? India will also accuse Italy of not having completed all the legal procedures provided for by Indian law before invoking the jurisdiction of ?? Itlos ??.

Certainly spurious statements and part of a legal strategy, but also induced by the Italian hesitation in taking firm positions, not least the one that after more than 10 days from the formalization of the request for pre-trial detention it does not appear, as far as is known, that the Italian Government has still appointed its own judge who will be part of the judging Court.

The Italian press, on the other hand, after a torpor that lasted more than six months, devoted ample space to the decision to activate arbitration, highlighting the effectiveness of the legal act as the only possible initiative to solve the problem. Agencies report institutional declarations which are accompanied by interventions by opinion leaders and academics experts in international law who express the most varied positions in favor of arbitration, which until now has been proposed by few as an essential act. To name a few, Amb. Terzi the Professor del Vecchio professor at Luiss and expert in the law of the sea and, very modestly, the writer.

The opinions are many and even taken for granted. Someone expresses the fear that Italy will not be recognized the requisites for the release of precautionary measures in the absence of ?? imminent risk of irreparable damage ??, forgetting that the ?? irreparable damage ?? C ?? has already been with the disease that struck Latorre perhaps because of the delay in resorting to arbitration and that could be repeated involving Girone, now certainly stressed by the distance from the family.

Opinionists who, through the pages of the major Italian newspapers, debate on the different and possible options that the Court of Hamburg could use, even discussing details that it is not risky to define as ?? certain ?? One of all, the possibility that Itlos accepts the Italian precautionary request by opting to transfer Girone and Latorre to a third country, rather than to Italy. Decision not possible but consistent with the provisions of the specific legal legislation that tells us how pre-trial detention is entrusted to a third state of the UN. In this case certainly neither Italy nor India are ?? third parties in the affair ??. To this are added other clarifications that are not entirely acceptable when we read? Arbitration has long been talked about in the past. If it has only started now, is it perhaps because it is now that circumstances can occur for a process, which must be legal and political at the same time, to bear fruit?

Opinions of all respect but clearly oriented to justify the accumulated delays as if they were unavoidable to create a legal and political framework favorable to Italy which, however, would not seem such considering the Indian declarations. On the other hand, we forget to clarify that if we had resorted to the Arbitration prepared on 11 March 2013 by the then Minister Terzi, India could have had more modest ?? opposite reasons ?? .

A careful rereading of the Government's communiqué dated March 18, 2013 published on the Farnesina website, could help to understand why that was the most favorable moment to activate international justice. Rereading the text, in fact, our request to the Indian authorities to start consultations pursuant to art. 100 and art. 283 of the Convention on the Law of the Sea (UNCLOS) has not yet received feedback. This path was indicated by the same sentence of the Indian Supreme Court of 18 January ... Indian denial we have also registered ... at the further our proposal for consultations between legal experts. This position by India has ... changed the scenario and the assumptions on the basis of which the affidavit was issued (the commitment that the two marines would return to India, ed). In the changed conditions, the return of the Fusiliers to India would have been in contrast with our constitutional rules ????. For these reasons, the Italian government has come to the determination, ... to formalize the opening of an international dispute on 11 March ??.

However, we look forward to the future with the hope that the strategy put in place by the English baronet entrusted with the fate of our two military shows that Italy is well defended.

Fernando Termentini