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On 14 February 2012 Italian Marines aboard oil tanker "Erice Lexie" fire upon Indian fishing boat off the coast of Kerala, killing two fishermen. It is imperative to recognize legal complexity of this matter, on the other hand, respect the rule of law to secure national interest. The two Marines- Massimiliano Laterre and Salvatore Girone arrested and produced at the local court at Kerala on 19 February and charged with murder. Invariably, Italy is India's fourth-largest trading partner in the EU. Since 1991, trade between two nations has grown 12-fold, from 708 million Euros to 8.5 billion Euros. Some 400 Italian companies have a presence in India.
It is thus imperative that India has enjoyed diplomatic convention with Italy is made applicable by Section 2 of the Diplomatic Relations (Vienna Convention) Act 1972. It gives certain provisions on Diplomatic Relations including diplomatic immunity, domestic application, and non-obstante clause. Hence, Article 253 introduces a legislation give effect to an international agreement. So, Parliament enacted the Diplomatic Relations (Vienna Convention) Act, 1972 to give effect to India's obligation under the Vienna Convention.
The key issue has been aired in Media is that which state (India or Italy) is centre of original controversy? To answer this need determination of three further questions: The interpretation of the applicable jurisdictional provisions of United Nations Convention on the Law of the Sea (UNCLOS) while, on the other, both are its partners; the extension of domestic criminal law to the Contiguous Zone; the sovereign immunity of the marines.
Italy's decision has raised complex issue that may destroy its imagination across the world. There are three justifiable questions; how they died? Whether they were killed? And who killed them? Which can only answered at a trial. However, on 22 February Supreme Court allows marines to go to Italy to cast votes for elections after pledge by Italian Ambassador that they will return after four weeks. But, unfortunately, Italian Foreign Minister declares that the Marines won't revisit India for trial. South Block summons envoy, a protest lodged all over the nation. However, if Marines do not return at March 22 by Supreme Court would be breaching a sworn affidavit.
It is argued by Italian government that the shooting was meant as an anti-piracy action and not a deliberate act of killing innocent people and the incident has taken place outside Indian territorial waters, therefore, India has no jurisdiction. I believe that the firing took place in Indian waters, 20.5 nautical miles from the coast of Kerala. A nautical mile of 24, in fact, has given to the territorial waters by UNCLOS. Moreover, the fishing boat was registered in India; the victims are too Indians, therefore, India has complete jurisdiction to put the Marines on trial. It was actually a criminal act, not a random incident.
The Kerala High Court allowance to travel home for Christmas and Supreme Court to return to Italy to cast votes in national elections was to examine their return back the nation. It is vital for India to justice the legal complexity among this both countries. If India yearns to restore its diplomatic relationship, it needs better legal jurisdiction. The path the accused to justice in India are: setting up a special court; investing it with the staff; necessary resources for fair trial; summoning the accused; appointing legal aid lawyers to defend them.
In fact, two questions arise in current context; was there sufficient legal basis for the Supreme Court's order restraining the Italian Ambassador from leaving the country? Can contempt instituted against the Italian Ambassador in the affidavit submitted to the Supreme Court? Hence, what Supreme Court issued order to summoned Italian Ambassador, Daniele Mancini and do not leave the country till Marines come back is welcome. But, it is imperative that Article 29 of the Vienna Convention states that a diplomatic agent shall not be arrest or detention.
- QAISAR ALI