DIPLOMATIC CONUNDRUM

The tragic saga of the shooting of two Indian fishermen by Italian marines, on board a merchant vessel to deter Somali pirates, lurching through blunders by both India and Italy has culminated in a stand-off. The Congress led union government erred in not controlling its state unit in Kerala from inflaming public opinion. Once the local narrative had fed into the national electronic media the issue jumped from being a local tragedy to jingoism and national honour.

A question of international maritime law was overtaken by popular approval for national vigilante action. With each successive legal step that New Delhi then took the ability of diplomacy to handle a complicated issue, with claimed overlapping jurisdictions by India and Italy, receded ominously. Interestingly, in July 2012, the shooting dead of two Indian fishermen, off the UAE coast near Jebel Ali, by a US naval vessel, did not resonate in India.

Why were the lives of those poor Tamilian souls less worthy of protest and action against the erring US sailors? Perhaps because the incident was on a boat of and near the coast of UAE, which worked to bury the matter. On the other hand, the Italian ambassador has been summoned on Monday by the Indian Supreme Court over his affidavit, based on which the court allowed the two marines to proceed to Italy for voting. It is now clear that the incident occurred not in the Indian territorial waters, which extend 12 nautical miles from the coast, but in the contiguous zone extending a similar distance beyond it, leading finally to the high seas. As per the UN Convention on the Laws of the Seas (UNCLOS), to which both countries are signatories, while in the territorial waters Indian jurisdiction is total, in the contiguous zone it extends to four subjects i.e. Financial, Immigration, Sanitation and Customs. Thus Italy claimed that the shooting having been from their vessel they have the right to investigate and if necessary prosecute. India argued that as the victims were on an Indian boat the passive jurisdiction passed to India.

An additional Italian plea was that the perpetrators being Italian marines, albeit on a merchant vessel, and on counter piracy duty as agents of the state they had functional immunity from prosecution. Also as per Article 97 of UNCLOS, “In the event of a collision or any other incident of navigation...”the flag state has jurisdiction to take penal or disciplinary action.

The Supreme Court's interpretation is that “other incident” must be akin to a collision and not a shooting from the ship. The Italians naturally challenge this.

The two nations also differed on facts. The Italians claimed that, like the US vessel in the Gulf, the Indian boat ignoring warnings veered too close to their ship compelling their marines to fire in self-defence. It is true that pirates using smaller motorboats have mounted ships in this manner. However no attack had occurred so near the Indian coast. The surviving Indian fishermen plead that the attack was unprovoked and disproportionate to the threat if any. Whether the paranoia of the Italians overcame their good sense and they abandoned standard operating practices or the Indian fishermen, oblivious of the fears lurking in Italian marines' minds, misread any warning signals only an independent and dispassionate enquiry could determine. By the time the guilty marines were apprehended the public opinion in Kerala had vitiated the atmosphere making any fair enquiry difficult.

If at that stage the Union government had pro-actively intervened to calm the tempers and first sort out the jurisdiction issue, by either accepting reference to the International Tribunal on Laws of the Seas (ITLOS) or mutually acceptable arbitration that UNCLOS provides for the matters would now be on different course. It chose instead to bend before public ire and unilaterally insist that Indian jurisdiction was beyond challenge.

The Italian mistake was to first accept Indian jurisdiction, seeking Christmas parole from the Kerala High Court. They continued to use the Indian legal system by then appealing to the Supreme Court. On January 18, the higher court decided that the case be tried by a special tribunal and not in Kerala, recognising that international law and treaty obligations of India were coming into conflict with a straight forward extraterritorial appli- cation of Indian criminal law. The Italians seem to have panicked over the Supreme Court not accepting their plea that India had no jurisdiction. They then undertook the subterfuge that has led to the current impasse, with the marines exiting India to exercise franchise and refusing to return as Italy seeks international arbitration under the UNCLOS to settle the matter. It is not clear whether they were misled by their optimistic legal team or some assurance was given by the Union government which they could not fulfil. The unbelievable conspiracy theory surmises that this is an engineered spat to derail the Augusta helicopter scam enquiry.

The diplomatic ramifications of the Supreme Court restricting the Italian ambassador's travel abroad and the hearing on Monday are unclear. One view is that the ambassador's diplomatic immunity stands surrendered on his joining the case. However as per Article 32 of the Vienna Convention on Diplomatic relations only the sending state can waive the immunity of a diplomat and such "Waiver must always be express."

The Italian a mbassador's affidavit was not in his personal capacity but only under his government's instructions. At worst the envoy can be declared persona non grata and expelled, but to over-rule his immunity from criminal or contempt proceedings would be treading dangerous ground. The two nations need to step back and re-assess less confrontational options.

Perhaps the best compromise can be that India accepts an international ruling on the question of jurisdiction but subject to Italy returning the marines to Indian custody pending such determination. The lines from Shakespeare’s Hamlet capture the dilemma: “Rightly to be great/Is not to stir without great argument/but to greatly find quarrel in a straw/ when honour is at stake.” But this must happen over the weekend as on Monday the Supreme Court, in restoring its dignity, may take it out of diplomatic hands. Can the two nations Stop quarrelling over “straw”, is the question that the world will ask. ( The writer is a former secretary in

the ministry of external affairs)