Tag: maritime law

When Italy behaved like a rogue state

Turning a legal issue into a geopolitical one has raised the stakes and hurt bilateral relations.

The Italian government reneged on its commitment to the Indian Supreme Court and unilaterally refused to return two of its marines, under trial in India for murdering two fishermen in India’s waters, after they were allowed to visit home first for Christmas (Christmas!) and second, to vote (vote!). (See an earlier post on the legal issues relating to this case)

The Supreme Court order, issued by a bench headed by the Chief Justice Altamas Kabir, allowed the accused’s petition on the basis of an affidavit filed by the Italian ambassador and based on the surety of his (and thereby the Italian government’s sovereign-) guarantee. Unlike the earlier instance when the Kerala High Court permitted them to visit Italy for Christmas, the Supreme Court did not ask for any bond to be posted. The Court can perhaps not be faulted for presuming that the written promise made by a member-state of the European Union can be trusted, but left itself exposed to a risk of default. Because the Italian ambassador enjoys diplomatic immunity, he cannot be charged in a criminal or civil suit—a norm which the Italian government abused in this case. The Court has limited options now.

The action has shifted to the geopolitical domain. As of this writing, reports indicated that New Delhi has decided to expel Ambassador Daniele Mancini. [See these storified tweets on the subject.]

Samanth Subramanian and Suryatapa Bhattacharya report this matter in The National where they quote me. My detailed responses were:

What sort of diplomatic fall out can we expect, if any?

The UPA government will be under pressure to react to what is clearly a breach of law, faith and norms of engagement between civilised states by the Italian government. The Indian Supreme Court went to the remarkable extent of letting the undertrial marines off for Christmas and voting based on the presumption of good faith. So New Delhi will have to act — although at this point it’s not clear to what extent the UPA government will go.

Do you think expelling the Italian diplomatic mission and recalling the Indian mission from Rome will send across the point that India’s judiciary and government is serious about prosecuting the two Italian marines accused of killing the fishermen?

It’s highly unlikely that the two marines will be sent back to India for trial. So what actions New Delhi takes — including expelling the ambassador and the military attache and downgrading bilateral relations — will essentially have signaling, punitive and deterrent value. New Delhi will have to signal that it will not let illegal actions by foreign governments go unpunished. It will then decide on how much it can and it should punish the Italian government. Finally, to the extent that setting an example dissuades others from treating the Indian judicial system with contempt, New Delhi’s response can act as a deterrent.

Mostly though, New Delhi’s actions will have a signaling value, with some degree of punitiveness.

Who should be held accountable for this breach of trust?

This is hard to answer. Clearly the Italian government is responsible for acting like a rogue state, not a civilised member of the international community. That said, it was unwise for the Indian government and Supreme Court to accept Rome’s bona fides because its leaders and officials have consistently demonstrated their contempt for the Indian judicial system right from the start. The Supreme Court allowed the marines to leave based on the word of the Italian ambassador, but surely the Union government’s counsel could have argued its case more strongly.

On NDTV’s The Social Network show last evening, I argued that this issue will affect bilateral ties and potentially even India-EU relations.

Not Italian tonight

In the case of the killing of Kerala fishermen, Italy would do well to defend its nationals in Indian courts

There are two aspects to the case of the killing of Indian fishermen allegedly by persons on the Enrica Lexie, an Italian merchant ship: the legal and the geopolitical. They are interconnected but looking at the two strands separately is useful.

The most important legal issue at this time is of jurisdiction. According to the UN Convention of the Law of the Sea (UNCLOS) of which both India and Italy are signatories, the coastal state (India) has jurisdiction in its territorial waters (12 nautical miles from the shoreline) for ships engaged in innocent passage. Because it’s hard to draw boundary lines in the water, UNCLOS recognises a contiguous zone that extends a further 12 nautical miles beyond the territorial waters where the coastal state can visit, board and arrest ships suspected of criminal activity in its territorial waters.

What if the crime has been committed in international waters? In general, UNCLOS treats the ship as sovereign territory of the country whose flag it flies and therefore under its jurisdiction. For warships, this is explicit and unambiguous. Even so, there are grounds for another state to claim jurisdiction, invoking its domestic laws or broader principles of international law. [See this explainer at Straight Dope] In effect, this really depends on the relative power of the states concerned—the United States may be able to assert a principle that say, the Republic of Nauru cannot.

Once jurisdiction is established, the respective legal processes take over: evidence must be produced, culpability established, guilt proven, verdicts given and appeals heard before civil damages are paid or criminal punishments meted out. So until the courts pronounce the verdict, the Italian marines are suspects and must be presumed innocent until proven guilty.

On the jurisdictional matter, what it means is that if it is established that the crime occurred short of 12 nautical miles from the Kerala coast, India has exclusive jurisdiction. If it occurred in international waters, beyond 200 nautical miles from Kerala, Italy does.

But between the two areas lies the exclusive economic zone (EEZ) where there is a balance between the rights of the coastal state and everyone else. This is perhaps the international lawyers get to make their money. Because UNCLOS says that the coastal state may initiate judicial proceedings on a foreign vessel in “the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone.” Those who disagree with how a coastal state interprets this can, well, go to the Hague.

This case involves an additional factor: not only were there armed military personnel on board the merchant ship, they were reportedly not under the command of the Enrica Lexie‘s captain. While the ship is ostensibly an oil-tanker this arrangement calls into question whether”innocent passage” and “peaceful purpose” holds. Furthermore, under international law, military personnel are considered state actors. This means the actions of the Italian marines on board the Enrica Lexie, whether or not authorised by the government, are construed to be that of the Italian Republic.

From media reports, the Italian marines might have opened fire too readily even considering the risk of piracy. Their failure to report the incident before being quizzed by the Indian Coast Guard adds to the dubiousness of their conduct.

So far the Indian authorities have acted in consistence with international law. The Coast Guard and police were within their rights to board and arrest suspects on the Enrica Lexie and subject them to the due process under Indian law. If not already, they will almost certainly be allowed consular access and legal defence. The defendants and the Italian government can challenge the court’s jurisdiction by providing evidence of their claim that the incident occurred in the high seas.

It is untenable to claim, as the Italians are doing, that the legal proceedings must take place in Italy on the basis of their claim that the incident took place in international waters. So let the law take its course.

In international relations, legal processes operate to the extent the states involved agree to abide by them. This is a fit case: there was a reason to deploy armed marines on the merchant ship and it is quite unlikely that the Italians were attempting an invasion or infiltration of Kerala. In the absence of hostile or mala fide intents (politically speaking), it is best to agree to pursue the matter soberly in courts of law. Fattening lawyers is far more conducive to international peace than agitating politicians.

Geopolitical questions are decided on the basis of interests and power, with legal principles and processes employed as mere instruments in their pursuit. There is no reason for India to wish for raising tensions with Italy at this time. Italy’s behaviour in the coming weeks will determine whether this feeling is mutual.

Update 1: Some reports suggest that the Italian delegation claimed that the marines have diplomatic immunity because they are naval officers. That’s ridiculous.

Update 2: Italy could claim that because the marines are elements of the state, they enjoy absolute sovereign immunity. The assertion of such a legal principle—which does not today enjoy the acceptance it did a century ago—will serve to bring the matter into the domain of geopolitics. If India were to refuse to accept this principle, then there’s not much Italy could do about it.