Insights into Editorial: No longer at sea

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Insights into Editorial: No longer at sea

06 May 2016

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Summary:

With the United Nations Arbitration Tribunal’s latest verdict, the stage is all set for both India and Italy to jointly move ahead and find a solution in the marine case which involved killing of two Indian fishermen off Kochi in February 2012. The incident had also resulted in a long festering bilateral dispute that had soured relations between India and Italy since 2012.

How Italy defends its marines?

The Italian position is that the two marines positioned on board a merchant tanker had opened fire to thwart what they perceived as a pirate attack 20.5 nautical miles off Kochi.

  • It is further argued that the death of the two Indian fishermen occurred in the course of the discharge of their operational duties, and hence functional immunity could be invoked as related to the military personnel of any nation.
  • And that even if charges of death by accident were to be prosecuted against the marines, this would have to be done within the ambit of Italian law and jurisdiction as harmonised with the UN Law of the Sea [UN Convention on the Law of the Sea (UNCLOS)].

India’s position:

India has steadfastly rejected this formulation and has invoked its sovereign right to prosecute the accused under the provisions of Indian law, thereby resulting in an impasse. India had also ‘asserted’ its sovereignty and sought to claim its sole jurisdiction in prosecuting the marines in a special court.

United Nations Arbitration Tribunal’s latest verdict:

With the International Tribunal for the Law of the Sea (ITLOS) rejecting its plea, Italy had approached the UN tribunal to “take such measures as are necessary to relax the bail conditions on Italian marine in order to enable him to return to Italy, under the responsibility of the Italian authorities, pending the final determination of the Annex VII Tribunal.”

The tribunal has accepted the Italian plea and allowed the marine in India to return, but the wording is significant. It notes: “Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.”

Differing interpretations:

India’s view: The Indian government has interpreted this decision as affirming the authority of the Supreme Court of India in the matter.

Italy’s view: Italy sees the tribunal’s order as a vindication of Italy’s position. It argues that the order had paved the way for Italian Marine to return home until the arbitration process is over.

Way ahead:

However, the provisional order only addresses what has been termed by Rome as the “humanitarian” dimension of an intractable bilateral dispute between the two countries – and in many ways the bitterly contested legal haul has just begun.

Going ahead, both parties should approach the Indian Supreme Court for a relaxation of the bail for Sergeant Girone. Hence, Rome’s unambiguous acceptance of the conditions attached, including the fact that even while being in Italy the accused would be “under the authority of the Supreme Court of India” will be critical.

Conclusion:

Given that the Tribunal is only deciding on jurisdiction rather than criminality, it does not appear that the case is about to end anytime soon. Stripped of its legal accoutrements, this case is about two innocent Indian fishermen who lost their lives and two Italian naval officers who, justifiably or unjustifiably, killed them. The endless complexities of the law have meant that justice has proved hard to come by both for the families of the victims and the accused. Hence, the courts, the governments and the law should not continue to muddle along as they have done this far. Both countries should jointly try and find a solution as soon as possible.