It is not everyday that a seemingly procedural legal question of jurisdiction turns into an inflammatory international incident. When the incident involves two nations that have never shied away from the dramatic, there is always the risk that the ensuing hyperbole will distract attention from the viability of options that each nation has. It is thus imperative for the Government of India to both recognise the legal complexity of the matter involving the killing of two Indian fishermen by two Italian marines 20.5 nautical miles off the coast of Kerala, as well as to respect the rule of law while acting firmly to secure its national interest. Looked at closely, though there is much in the law that has been seemingly intractable so far, there is much else that affords scope for decisive diplomatic action.
The key issue
The key legal issue at the centre of the original controversy is which State, India or Italy, may legitimately exercise jurisdiction over the dispute. To answer this involves a determination of three further questions: The interpretation of the applicable jurisdictional provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to which both India and Italy are parties; the extension of domestic criminal law to the Contiguous Zone, an area adjacent to the territorial waters extending up to 24 nautical miles from the coast, and the issue of sovereign immunity of the Marines, which has traditionally been regarded as an exception to the exercise of territorial criminal jurisdiction. The Supreme Court, despite its order on January 18, 2013, has not ruled conclusively on these matters and it is open to the petitioners to challenge India’s jurisdiction at trial.
In addition, the order of the Supreme Court on February 22, 2013 allowing the Marines to return to Italy must be recognised as an unprecedented order dealing with an unprecedented situation. Unlike the Kerala High Court decision, which allowed the Marines to travel home for Christmas by way of relaxing their bail conditions, the Supreme Court order was passed in a legal vacuum. Given that the Court found that the Kerala courts had no jurisdiction and the Centre had not yet set up a special court, the order to allow the Marines to return for four weeks was an equitable relief, based on good faith and the solemn assurances of the Italian Ambassador to India.
The legal correctness of both orders of the Supreme Court and the wisdom of actions of the government till date are a subject of intense legal debate. At this time however, as the Government of India mulls next steps, it is imperative that unlike in these two instances, it henceforth uses the extant legal complexity and the unprecedented nature of the situation to its advantage. Doing so will allow it to secure two key interests: Justice for the fishermen and restoring the bruised dignity of the Supreme Court of India.
A question of justice
At the heart of this complex diplomatic and legal row lies a human tragedy. Fishermen Valentine and Ajesh died while plying their trade off the coast of Kerala. How they died, whether they were killed and who killed them are questions which can only be conclusively answered at a trial. The path to bringing the accused to justice in India consequently recommends itself to the Central government: proceed with the trial of the marines as per the order of the Supreme Court, as if they were present.
This involves expeditiously setting up a Special Court, investing it with the staff and resources necessary for a fair trial, summoning the accused, and appointing competent legal aid lawyers to defend them if they are unwilling to appear and co-operate with the court. Such a step will be crucial for three reasons. First, it will reiterate the Government of India’s stated position in both the Kerala High Court and the Supreme Court that India is jurisdictionally competent to conduct the trial in this case. This is diplomatically vital for India to demonstrate a consistent position, asserting its own jurisdiction over the dispute. Second, it is essential to ensure that the Supreme Court judgment of January 18, 2013, authoritatively stating that it is the Union of India that is competent to try this matter, is respected. Allowing a judicial order of such importance to become a dead letter would be a serious breach of the rule of law. Third, beginning such a trial would provide a clear legal basis to declare the accused a ‘proclaimed offender’ under Section 82 of the Code of Criminal Procedure. This would set the legal foundation for an international arrest warrant against the accused, restricting their right to travel outside Italy, presumably a key facet of their work as naval officers. Justice to the fishermen and their families in the current circumstances would remain illusory without a trial court making at least these preliminary determinations, thereby setting the stage for a final determination of guilt.
Prosecuting for contempt of court
Getting the accused back to face trial in India must be sought through alternative, legally tenable means. A key avenue is to sue the Italian Ambassador to India, Daniele Mancini, for contempt of court. If the Marines do not return by March 22, when the four weeks granted by the Supreme Court expires, the Ambassador would be breaching his obligation, to ensure their return to India, in a sworn affidavit in his official capacity before the Supreme Court, thereby committing an egregious act of contempt.
It is thus imperative that the Government of India files a contempt petition before the Supreme Court at the appropriate time. It has been widely suggested that filing such a petition may be meaningless because the Ambassador enjoys diplomatic immunity. While superficially the objection seems weighty, a deeper legal analysis suggests otherwise. First, the power to punish for contempt itself is a constitutional power vested in the Supreme Court by virtue of Article 129. On the contrary, the principle of diplomatic immunity, well-recognised internationally in numerous conventions, is made applicable in India by Section 2 of the Diplomatic Relations (Vienna Convention) Act, 1972 (hereinafter “Act”). This Section, which gives certain provisions of the Vienna Convention on Diplomatic Relations, 1961, (hereinafter “Vienna Convention”) including the principle of diplomatic immunity, domestic application, starts with a non-obstante clause that implies that it overrides other laws. However it is a fundamental legal fallacy to contend that such a statutory law can override a constitutional power. It is an equal fallacy to contend that it overrides the Constitution on the basis of being customary international law, applicable to all nation states. India’s constitutional scheme is, in principle, unambiguously dualist, i.e. for international law to be binding, it requires domestic incorporation. This is especially so when the international law in question ‘modifies the laws of the state’ [ Maganbhai Ishwarbhai Patel v. Union of India, (Supreme Court, 1969)].
Second, the Republic of Italy, by approaching the Supreme Court of India through a writ petition itself, has arguably waived its claims to any sovereign immunity in respect of this matter. According to Section 5 of the Act read with Article 32 of the Vienna Convention, sovereign immunity can be waived in respect of counter-claims in matters where proceedings are initiated in a domestic court by a diplomatic agent. In Indian National Steamship Company v. Maux Faulbaum, the Calcutta High Court held that the Government of Indonesia in approaching the Calcutta High Court for relief had waived its sovereign immunity. Consistent state practice in other jurisdictions supports this view that when a state itself institutes proceedings before a foreign national court, it relinquishes its immunity. Italy, and by necessary implication its Ambassador, cannot, in law, be allowed to have its cake and eat it too.
Finally, Section 4 of the Act can be used by India to withdraw certain privileges and immunities, if it appears that Italy is in breach of its obligations under the Vienna Convention. Under Article 41 of the Vienna Convention, it is a duty on those enjoying privileges and immunities to respect the laws and regulations of the receiving (host) state. There is little doubt that by falsely swearing on affidavit before the Supreme Court of India, and brazenly disrespecting its order, the Italian Ambassador has shown wanton disregard for the laws and regulations of India. Moreover, such disregard has fundamentally tarnished the dignity of the Supreme Court of India. In these circumstances, it would be entirely permissible to withdraw Italy’s, and by consequence, its Ambassador’s immunity from jurisdiction of Indian courts in this matter.
Each of these, and other legal options that exist at this time, must be analysed carefully by the Government of India, in terms of its strategic value, political viability and international repercussions. The law governing the substantive dispute and possible next steps is undeniably complex. The Government of India must view this complexity as an opportunity and act decisively to uphold India’s national interest.
(Arghya Sengupta is a Stipendiary Lecturer in Law at Pembroke College, University of Oxford and Founder, Vidhi Centre for Legal Policy, New Delhi
Neha Jain, Associate Professor, University of Minnesota School of Law, provided inputs on questions of international law)