Italy’s decision that the marines accused of killing Indian fishermen will not return to stand trial in India is in breach of assurances given to the Supreme Court of India and may justify the prevailing sense of outrage in India. However, the Indian response needs to be guided by legal and strategic considerations rather than collective anger. In this context, Mr. Arghya Sengupta’s piece in The Hindu (“Lawful responses to unlawful actions”) is a timely intervention. However, his suggestion that contempt of court proceedings may be initiated against the Italian Ambassador raises concerns in international law which require further examination.

Two Legal Systems:

‘Lawfulness’ of an action can be determined only with reference to the norms of a specific legal system. What may be ‘lawful’ in one legal system may not be so in another.

As a State, India is a subject of international law governed by the rules of that legal system. The acts of all organs of the Indian State, including the judiciary are treated as acts of India in international law. Where any organ of the State conducts itself in breach of international law, India incurs responsibility for an ‘internationally wrongful act’. It is also well established in international law that a country may not use its own domestic law provisions as a defence to an allegation of breach of international law. On the other hand, Indian courts are required to apply domestic law, not international law, in deciding disputes. Therefore, Indian courts may, at times, face situations where they are at liberty to, or even required to, take ‘lawful’ actions in Indian law, which may not be ‘lawful’ in international law and may result in international legal responsibility for India. Hence, while discussing ‘lawfulness’ of a proposed action by an Indian court (or any other organ of the Indian State), it is important to make separate determinations of ‘lawfulness’ under two distinct legal systems – Indian law and international law. The result under the two legal systems may not be the same.

‘Lawfulness’ of contempt proceedings against the Ambassador

Ambassadors of foreign States in India enjoy diplomatic immunity. This immunity has foundations both in Indian law and international law. Mr. Sengupta deals with the immunity of the Ambassador and the ‘lawfulness’ of the proposed contempt proceedings with reference to Indian law. I largely agree with his analysis here. However, his treatment of the ‘lawfulness’ of the said measure under international law is minimal and may be summarized in his own words as: “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.”

It is pertinent to draw a distinction between ‘sovereign immunity’ of Italy and the ‘diplomatic immunity’ of its Ambassador here. The principle of ‘sovereign equality’ of States underlies the concept of ‘sovereign immunity’ which prevents courts in one State from exercising jurisdiction over another State. The norms relating to ‘sovereign immunity’ arise largely from customary international law and some of them have been codified in the UN Convention on Jurisdictional Immunities of States and Their Property. A State cannot claim sovereign immunity in a proceeding which has been initiated by that State. Thus, Italy, having initiated the proceedings before the Supreme Court, is precluded from claiming ‘sovereign immunity’.

The law on ‘diplomatic immunity’, which diplomatic agents are entitled to, is laid down in the Vienna Convention on Diplomatic Relations, 1961. Article 31 of the Vienna Convention vests a diplomatic agent with immunity from criminal, civil and administrative jurisdiction of the receiving State. Article 29 states that a diplomatic agent “shall not be liable to any form of arrest or detention”. Diplomatic immunity is aimed at protecting a diplomatic agent from personal civil and criminal liabilities unlike sovereign immunity which protects the State itself.

Having clarified the concepts of sovereign immunity and diplomatic immunity and the distinction between the two, I will now examine the proposition that Italy’s initiation of proceedings before the Supreme Court amounts to a waiver of diplomatic immunity. Article 32 of the Vienna Convention states that the diplomatic immunity may be waived. As Mr. Sengupta rightly points out, Article 32(3) states: “The initiation of proceedings by a diplomatic agent … shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.” For three different reasons, I believe that Italy’s initiation of proceedings does not amount to a waiver of diplomatic immunity under this provision.

First, an allegation of contempt, while it may be incidental to the original proceedings before the court, is not in a nature of a counter-claim. Unlike a counter-claim where the respondent in a case raises a claim against the original claimant seeking to enforce its own rights, contempt proceedings seek to remedy certain kinds of behaviour directed at the courts.

Second, the expressions ‘claim’ and ‘counter-claim’ used in Article 32 of the Vienna Convention suggest that the waiver of immunity under that provision applies only to civil proceedings. Contempt of court, given its penal consequences, is ‘quasi-criminal’ in nature [Bijay Kumar Mahanty vs Jadu Ram Chandra Sahoo, (2003) 1 SCC 644].

Third, since the diplomatic immunity guards against the personal liability of the diplomatic agent (and not the liability of the State), the participation of Italy as a State in the proceedings before the Supreme Court and the consequent waiver of Italy’s sovereign immunity in the matter does not amount to a waiver of the Ambassador’s personal immunity. Even assuming that Italy’s participation in the proceedings implies a waiver of the personal immunity of its diplomats, through whom it acted, that does not suffice in light of Article 32(2) of the Vienna Convention which requires that a waiver be express.

In light of the above, there has been no waiver of diplomatic immunity which can grant ‘lawfulness’ to the proposed contempt proceedings in international law.

The next step:

Does the illegality, in international law, of initiation of contempt proceedings against the Ambassador mean that India should not take this course of action? This is a political decision to be made after carefully weighing the strategic advantages and disadvantages of initiating such proceedings and considering whether the advantages of initiating such proceedings outweigh the consequences of breach of international law. In this analysis India should also bear in mind the crucial interest of States, including India, in ensuring the inviolability of diplomatic personnel and premises.

India can opt to be tough on the Ambassador and yet be in compliance with international law by declaring him ‘persona non grata’ (unacceptable person) under the Vienna Convention. In such a case, Italy will have to withdraw him immediately. If the Ambassador is not withdrawn following such a declaration, his diplomatic immunity will cease to operate. While such a declaration will not carry harsh consequences for the Ambassador as Italy will almost certainly withdraw him, it will send out a strong diplomatic signal.

If India chooses to abide by international law and not initiate contempt proceedings, will the marines walk out as free men? Not necessarily. The saying ‘possession is nine tenth of the law’ applies to the present situation too. As long as the marines were in Indian custody, India could proceed with the trial and it would be for Italy to identify a suitable international forum to raise a complaint (not an easy task since all international adjudication requires the consent of both the States involved) and obtain a favourable order. But since the ball (and the marines) has left our court, the task of pushing for international adjudication now falls on India. While this may be an uphill task, it is not impossible. Such adjudication could decide the question of jurisdiction, and if India prevails, order the return of the marines.

Deepak Raju is a student of International Law at the University of Cambridge.

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