Many in India including the political leadership have criticised the Italian government’s defiance of India’s Supreme Court, but Italy has cited the same court’s January 18 ruling in the case as the basis for asking for a “bilateral dialogue” to achieve a “diplomatic solution.” Rome has said that it is not returning the marines as India has failed to respond to those requests.

The Supreme Court had upheld the validity of the United Nations Convention on the Law of the Sea (Unclos) in its ruling. Unclos defines the rights and responsibilities of nations in their use of the world’s oceans. The court said that if evidence was produced to prove that the case of the Italian marines shooting down two Indian fishermen was a mistaken application of anti-piracy action then Article 100 of Unclos would apply. The court ruled that the Union of India would be considered to have jurisdiction to try the marines until evidence shows that Article 100 of Unclos would apply.

Article 100 of Unclos asks nations to cooperate in curbing piracy. For the Supreme Court, Article 100 would take the case to a whole new level — one involving two national governments.

Italy has said that immediately following the January ruling, it asked for a bilateral dialogue, as the court “itself had recommended when it cited counter-piracy cooperation between states in pursuance of Unclos provisions.” That, however, may well be an interpretation of the ruling. The court did not recommend bilateral dialogue or diplomatic solution. It only said that the Special Court to be appointed by the Centre could be asked to decide on the jurisdiction — of India, Italy, or the two nations jointly — based on Unclos 100.

The Supreme Court ruling also says that if Article 100 of Unclos were to apply, then the flag Enrica Lexie and fishing boat were flying would matter while deciding jurisdiction. In the “high seas” — outside the territorial waters of 12 nautical miles from the coast — no nation can claim sovereignty except over its installations and ships carrying its flag. The court observed that Enrica Lexie was flying the Italian flag, which means that the Italian government has jurisdiction over what happens in the ship, whereas St. Antony, the fishing vessel, was not flying an Indian flag when the incident took place.

Immunity from prosecution

The ruling also observed that Starke’s International Law holds that some public ships and armed forces of foreign states may enjoy a “degree of immunity from the territorial jurisdiction of a nation.” In its press release on March 11, Italy claimed immunity for the marines based on “customary international laws and treaties.”

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