Note4Students

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…

Background

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?”