The provisional measures in the “Enrica Lexie Incident” case

The analysis of the comprehensive situation of the duties of the parties to the dispute resulting from the two orders on provisional measures adopted by the International Tribunal for the Law of the Sea (ITLOS) and by the Annex VII arbitral tribunal (Annex VII AT) discloses also the implicit confirmation by the latter tribunal of the provisional measures adopted by ITLOS and moreover, as for marine Latorre, not mentioned in the second order, the identical legal positions of Sergeant Girone. The Annex VII AT Order discloses in the provisional phase the attitude, typical of the international mediation, of seeking a solutions acceptable by both parties and the reference to considerations of humanity as a proper legal criterion, put in evidence in the operative provisions. As for the application of the international rules on functional immunity invoked by Italy and contested by India in the two provisional proceedings, in the light of the case law of recent arbitral decisions can be reasonably expected that in its final decision the arbitral tribunal, in applying Art. 293 of the UN 1982 Convention on the Law of the Sea, will take into consideration those rules.