Diplomatic Lessons for India

 Syllabus: General studies paper 2 ( international relations)

Context:

Nine years after two italian marines shot dead two fishermen off kerala under the belief that they were pirates; the criminal proceedings against them are set to be formally closed.

Background:

• In 2012, indian police had detained two italian marines posted on oil tanker enrica lexie who had shot at two indian fishermen on an indian vessel, apparently mistaking them for pirates operating near the kerala coast.
• The fishing vessel was within the country’s contiguous zone and it was quite clear that the offence warranted arrest and prosecution under domestic law.
• The supreme court had ordered the centre to set up a special court to try the case. Prior to the supreme court verdict, the kerala high court too had found that the marines enjoyed no immunity.
• In 2014, the marines had successfully gained a stay order on the investigation by the national investigation agency.
• According to unclos, disputes can be resolved through four process, one of which was for ad-hoc arbitrationas outlined in annex vii of the convention.
• Accordingly, a specially-designated tribunal was constituted with five members on november 6, 2015.
• A year later, the supreme court froze its own proceedings when italy approached the permanent court of arbitration (pca) in the hague.
• Itruled that the italian marines accused of killing two fishermen off the coast of kerala on february 15, 2012 enjoy immunity.
• They are outside the jurisdiction of indian courts as they were acting on behalf of a state.

Important takeaways from judgement:

• The permanent court of arbitration (pca) in the hague stated that both india and italy had concurrent jurisdiction in the matter but concluded that the marines’ immunity precluded india’s jurisdiction.
  • The pca is an intergovernmental organizationestablished by a treaty at the first hague peace conference, netherland in 1899.
  • All its decisions – called “awards” are binding on all the parties in the dispute and have to be carried out without delay.
  • Diplomatic immunity under vienna convention on diplomatic relations: it specifies the privileges of a diplomatic mission that enable the diplomats to perform their diplomatic functions without the fear of any legal trouble or harassment from the host country.
• In india’s favour,the pca found that the italian vessel violated the right and freedom of navigation of the indian fishing vessel under unclos. The loss of lives, property and harm, merited compensation.
  • No case for piracy: the pca rejected a key argument by italy that india, by arresting the marines, violated its obligation to cooperate with measures to suppress piracy under article 100 of unclos.
  • However, the tribunal endorsed that the italian ship had violated national and international maritime laws. It will serve as a warning to foreign freight and passenger ships.

Indian reaction:

• The centre informed the supreme court that it has decided to “accept and abide” by an international tribunal’s ruling india is bound by the award of the arbitral tribunal formed under the united nations convention on the law of the sea (unclos).
• The award is “final and without appeal,” as india is a party to the u.n. convention.
• It is in tune with article 51(c) and (d) of the constitution: “the state needs to foster respect for international law and treaty obligations and encourage settlement of international disputes by arbitration.

Concerns:

The pca’s award, which is final and has been accepted by india, is a huge setback for the expectation that the two marines would face a criminal trial in india.

• Legal and diplomatic delays: the union government should have taken over the prosecution and ensured a quick trial. Due to legal tangles and the diplomatic fallout, the marines managed to obtain orders to leave the country.

• Diplomatic hurdle: the national investigation agency invoked the suppression of unlawful acts against safety of maritime navigation and fixed platforms on continental shelf act, 2002. This caused a diplomatic furore as it provides for the death penalty.
  • The eu threatened to impose trade sanctions. Ultimately, it took time for these charges to be dropped.
• Legal jurisdiction issue:the supreme court ruled that only the centre, and not kerala, can prosecute the marines after parallel legal action by center and state governments.

• Bad precedence: calling the verdict an invasion into the rights and dignity of fishers, fishermen associations say this will set a bad precedent since the shooting happened on the fringes of the territorial waters.

A lesson is that such incidents should be dealt with a combination of legally sustainable steps and diplomatic efforts to find early resolution. A possible way out was to have agreed to italy’s offer of compensation and a trial in its own jurisdiction — the very thing that came out of the un tribunal’s ruling.

https://www.thehindu.com/opinion/editorial/closure-compensation-the-hindu-editorial-on-the-closure-of-the-italian-marines-case/article34834554.ece

Question: