From UPSC perspective, the following things are important :
Prelims level : Vienna convention
Mains level : Paper 3- Italian marines case
The tribunal’s judgement in the Italian marines case was in Italy’s favour. But the basis used in the judgement could set a wrong precedent. India also ensures a fair trial against the marines in Italy. So, what would be the wrong precedent and why would be trial against marines will continue in Italy? Read to know…
- On February 15, 2012 two Italian marines were held for killing two Indian fishermen
- Fishermen were in India’s Contiguous Zone, 20.5 nautical miles off the Kerala coast.
- And the marines were part of a security contingent on the Enrica Lexie, an Italian commercial oil tanker.
What is said in the judgement
- The tribunal was established by the International Tribunal for the Law of the Sea (ITLOS).
- ITLOS was under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).
- Only the operative portion of the tribunal’s award is available till now.
- It held that the marines were entitled to immunity in relation to the acts that they committed.
- The tribunal also said that India is precluded from exercising its jurisdiction over the Marines.
- However, the tribunal found that by firing on the fishermen Italy was guilty of “violating India’s freedom and right of navigation”.
- The tribunal majority agreed with the Italian plea that the marines had immunity for they were state officials.
The judgement could set the wrong precedent
- India’s stand was that UNCLOS is not concerned with issues relating to immunity.
- Immunity of state officials has to be governed by specific multilateral or bilateral treaties or agreements.
- It should not be invoked to settle issues of jurisdiction.
- Even if Italian marines are considered as state officials, they were serving on a commercial vessel.
- Italy did so unilaterally without the cover of any multilateral or bilateral arrangement.
- There is no convention that such persons as the marines in such cases are immune from local criminal jurisdiction.
- Only heads of states, heads of governments and foreign ministers customarily enjoy immunity abroad apart from accredited diplomats who are covered by the
- Countries may now enact specific laws to give immunity to their military and para-military personnel and others by declaring them state official.
- This can lead to an increase in tensions generally and especially between inimical states.
What should be the next course of action for India
- Indian government should ensure that Italy is made to pay fully for the loss of life and the suffering it has caused in this matter.
- The government should also ensure that it closely monitors the case proceedings in the Italian court against two marines.
- This is also a time for the executive and judicial branches of the Indian state to introspect on how they handled the whole affair politically, diplomatically and legally.
Consider the question “The judgement of the International Tribunal for the Law of the Sea in Italian marines case was based on the immunity of state officials. What could be the implication of invoking immunity of state official in this judgement? What should be the next course of action for India?”
As a good international citizen, India has accepted the tribunal’s award. Now it must ensure that Italy fully honours it. The matter remains open.
- Italian Senate declared that the marine who went back home in 2014 because of ill-health will not return India.
- He has to face the judicial process for the 2012 murder of two fishermen off the Kerala coast.
- The permission for Mr. Latorre to stay away from India will expire on January 15, after which he was expected to return.
- Italy is working on possibility of return of another marine to Italy.
- The International Tribunal for the Law of the Sea has put a “status quo” in the Italian marines case.
- The tribunal has asked both countries to “suspend” all court proceedings and refrain from initiating new ones that might “aggravate or extend” the dispute.
- Both countries will submit the initial report on the entire incident by September 24.
- Govt. official claim it was a partial victory for India as the court did not allow one of the accused marines to go home from Indian custody despite Italy’s plea.
- India has rejected Italy’s offer to secure protection from any legal action against the two Italian marines.
- India said it would help expedite the trial at a Special Court within 4 months.
- There is no bilateral agreement between India and Italy for granting diplomatic immunity to armed forces personnel of Italy.
- India also rebutted Italy’s claim before the tribunal that New Delhi has shut the door for a diplomatic solution.
- India’s delayed progress in consideration of stringent measures had led to Italy moving ITLOS.
- Italy has questioned the jurisdiction of NIA to prosecute their marines.
- Italy has moved to international forum citing excessive delay from Indian side, to restrict India taking any judicial or administrative action.
- Italy appears to have returned to its original position of questioning India’s jurisdiction altogether.
- India had contended that incident took place 20.5 nautical miles off Indian territory, in the Contiguous Zone.
- An Indian team will challenge the Italy’s contentions in the Italian Marines case before the International Tribunal for the Law of the Sea (ITLOS).
- The Indian government will challenge Italy’s decision to take the issue to the international tribunal. How?
- Italy has not exhausted all remedies, which is a requirement before invoking the jurisdiction of ITLOS.
- ITLOS is one of the four forums available for such International disputes.
- Through this forum, Italy wants India to refrain from taking any judicial or administrative measures against the Italian marines.
- India will be represented by the Additional Solicitor General P.S. Nariman at the tribunal and will be contending that India alone has the jurisdiction in this case since it happened within India’s territorial limits.
- India will also contend that Italy did not exhaust all available remedies, which is a requirement before approaching ITLOS.
In Feb 2012, two Italian Marines on board an oil tanker had opened fire on a fishing boat and killed two fishermen. The issue has since then been a tussle between the two Government.