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ABSTRACT Although the dispute between India and Italy seems to have been abated for now, it has

once again raised the contention of applicability of the doctrine of sovereign immunity. The whole hysteria started when the government of Italy refused to return back the two Italian marines, Massimiliano Latorre and Salvatore Girone, for facing the criminal trial in Kerala. In response the Hon‟ble Supreme Court of India temporarily barred the Italian ambassador, Daniele Mancini, from leaving the Indian Territory. Further, the court also refused to take the argument of diplomatic immunity claimed by the Italian ambassador, who said he had given the undertaking on behalf of the Italy government. However, his decision of the court has triggered a legal debate over a diplomat's legal rights and privileges under the Vienna convention, and Italy accusing India of violating the norms of Vienna convention, which governs global diplomatic ties. This paper seeks to examine the whole Italian Marine‟s issue and elucidate the issue o f diplomacy involved in the same.

it leaves a huge ambiguity over the application of the rules of International Law. Feb 20. The incident is reported to have taken place in international waters. The petition argues that under the principles of international law and conventions. 2012: External Affairs Minister S. Italy says the Marines have immunity from the Indian law as the tanker was flying an Italian flag in international waters. including the United Nations Convention on the Law of the Sea (which India has ratified) Indian courts have no jurisdiction to register a crime in connection with the incident. gunning down two Indian fishermen. India has taken the unusual step of barring its ambassador to Delhi from leaving. Italy wants the three to be permitted to leave in return for a joint investigation into the incident. . The ship from which the fishermen were fired upon was identified as the Enrica Lexie. for flouting the laid-down counter-piracy measures. India wants the captain of Enrica Lexia and the two marksmen who shot the fishermen to surrender to Kerala Police. sailing from Singapore to Egypt. Italian Consul General in India. As the Italian Marine‟s story unfolds. Feb 17. 2012: Italy moves the Kerala High Court. 2012: Two fishermen. taking diplomatic rules into uncharted waters and possibly even risking Indian relations with the Italy and rest of the European Union. Captain of the tanker Umberto Vitelli is also questioned. especially that of diplomatic immunity. 2012: Latorre Massimiliano and Salvatore Girone are remanded in judicial custody for 14 days (till March 5. which resulted in the ship's armed guards. after Rome changed its mind on returning two Italian marines charged with murdering two fishermen off the Indian coast last year. 2012: The Indian Navy lashes out at the Italian oil tanker. 2012). The Lexie claims it thought the fishermen were pirates. when the shooting occurred. Feb 19. 2012: Rome decides to send junior Foreign Minister Staffan De Mistura to India. Talks fail. M. Feb 21. Jelestine and Ajeesh Pinku. seeking to quash the first information report (FIR) registered against two of its naval personnel. meets the Coast Guard and Kerala police. Feb 18. Chronological Sequence of the Dispute Feb 15. who had left for fishing in a mechanised boat from the Neendakara Fishing Harbour were shot dead in the seas off Ambalapuzha. Accusing Italy of "unacceptable" behaviour. 2012: Italian oil tanker Enrica Lexie is brought to Kochi and police and Coast Guard personnel question the crew. Enrica Lexie. Feb 16. 2012: Kerala police arrest the two Marines (Latorre Massimiliano and Salvatore Girone) suspected to have fired the shots. GiamPaolo Cutillo reaches Kochi. Krishna has a telephonic conversation with and his Italian counterpart Giulio Terzi di Sant‟ Agata. who are Italian military personnel. Feb 22.INTRODUCTION A spiralling row has broken out between Delhi and Rome.

April 23. April 3. on its agent furnishing a bond for Rs. 2012: Additional Solicitor-General Harin Raval informs the Supreme Court that Enrica Lexie. March 1. Krishna and his Italian counterpart Giulio Terzi di Sant‟ Agata in New Delhi discuss the on-going investigations in the case but continue to have differences over jurisdiction and legal aspects of the incident. April 27. 2012: The legal heirs of two fishermen file a petition in the Kerala High Court seeking to withdraw the affidavits and submissions made by them against Italy's plea for quashing the First Information Report registered against the marines. 2012: Court allows Italian vessel to sail out. and an undertaking that the vessel. Deputy Conservator. Judge directs the police to permit the ship to sail. Feb 25. March 29. 2012: Kollam Chief Judicial Magistrate extends the judicial custody of Marines by another 14 days. Feb 28.meets the Marines who are held at a CISF guest house.17 lakh.Feb 23. with riders. 2012: Italian Prime Minister Mario Monti calls up Prime Minister Manmohan Singh. . April 20.M. 2012: Italian Deputy Foreign Minister Staffan de Mistura visits Kochi. 3 crore before the Deputy Conservator. Apr 20. Police and Kollam diocese separately refuse to arrange the meeting. 2012: The Kerala High Court gives its seal of approval to the award passed by the Lok Adalat under the High Court Legal Service Committee. 1 crore to each bereaved family has been reached between the Italian government representatives and them.expresses "regret" for the incident. 2012: Kerala High Court sets aside Kollam Magistrate court's order. 2012: A Special Investigation Team of the Kerala police searches and seizes weapons on board Enrica Lexie in the presence of the Italian technical team. April 24. was not in Indian waters when the shooting incident occurred. endorsing the settlement on compensation reached between the legal heirs of the two fishermen and Italian government. 2012: Italian Deputy Foreign Minister Staffan De Mistura's bid to meet the kin of the deceased Jelastine alias Valentine fails. till April 2. and Mercantile Marine Department (MMD). Freddy. March 3. and the crew would be produced as and when required by the Centre. citing security issues. Italy launches a parallel investigation of the incident by its agencies back home. March 7. master. 2012: The legal heirs of the two deceased fishermen tell the Kerala High Court that a settlement for paying a compensation of Rs. owner of the mechanised boat which was fired upon by two marines The boat owner accepts the out-of-court-settlement of Rs. 2012: The Kerala High Court approves the out-of-court settlement reached between Italy and J. 2012: Italy informs India that it has initiated criminal proceedings against the marines under its law that could lead to a prison term of not less than 21 years. 2012: External Affairs Minister S. Cochin Port Trust. March 19.

May 18. May 30. 1 crore each with two Indian solvent sureties for a like amount.Apr 30. 2013: The Supreme Court permits Marines Massimilano Latorre and Salvatore Girone to visit their country to vote in the February 24 and 25 elections. subject to the decision of the union government. 2012: The passports of marines are released after Kerala High Court grants conditional permission for the marines to go to Italy for Christmas. the two Italian marines. along with the crew and the remaining marines. and 11 a. Dec 22. 2013: Italy refuses to return two of its marines. 2013: Marines return to Kerala from Italy post-Christmas. . May 20. 2012: The marines fly back home for Christmas in a chartered flight. 2012: Kerala High Court grants bail to both the marines on various conditions. It also orders them to stay within a 10 km radius of the Kochi Police Commissioner's office and appear before the Commissioner on all days between 10 a. March 12. June 2. are released on bail. India tries to hold Italian Ambassador Daniele Mancini as the Supreme Court that allowed the two marines to leave for their country upon the envoy's undertaking. and as and when required. 2012: Supreme Court allows the vessel. Jan 18. Dec 21. arrested for allegedly gunning down two Indian fishermen off Kerala. 2012: The 196-page charge-sheet is filed by Neendakara Coastal Police showing Lattore as the first accused and Girone as the second accused. May 5. 2012: Italian PM Mario Monti speaks to Manmohan Singh. Jan 4. 2013: The Supreme Court holds that the State of Kerala had no jurisdiction to investigate into the `Italian marines shooting incident‟ and says only the Union of India had jurisdiction to proceed with the investigation and trial of the two marines. including a bond of Rs. to leave India.m. March 11. 2012: The Italian ship leaves Indian waters after furnishing a bond of Rs.m. 2012: Describing Italy's compromise with the kin of the two Indian fishermen as “illegal” and “astonishing. 3 crore. May 2.” the Supreme Court says that they were “playing” with the Indian process of law. 2013: Prime Minister Manmohan Singh assures protesting Kerala MPs that India will do everything possible to bring the two Marines back from Italy to stand trial. Enrica Lexie. The judicial remand of the two marines of Italian ship Enrica Lexie is extended by 11 days. Italy also recalls its Ambassador to India Giacomo Sanfelice to express its unhappiness over the charge sheet being filed against the marines. Feb 22. 2012: After 105 days in custody.

for international law to be binding.potentially creating a dangerous precedent for its own envoys. it looks that India is on the erroneous side but if we go in to the intricacies it comes otherwise. armed personnel are not given any protection for their criminal action.March 13. The Supreme Court takes a serious view of Italy‟s breach of undertaking and restrains Ambassador Daniele Mancini from leaving the country without its permission. 1972. ISSUE OF DIPLOMACY: The issue of diplomacy involved in the Italian Marines Case is twofold. when the Hon‟ble Supreme Court of India temporarily barred the Italian ambassador. domestic application. applicable to all nation states. However it is a fundamental legal fallacy to contend that such a statutory law can override a constitutional power. 1961. starts with a non-obstante clause that implies that it overrides other laws. the principle of diplomatic immunity. March 18. March 14. The certain legal points which India can put are:  The power of the Supreme Court to punish for contempt is a constitutional power. March 21. 2013: Feeling “insulted and shocked” by Italy‟s stand. It is an equal fallacy to contend that it overrides the Constitution on the basis of being customary international law. However the Indian government stands concrete in its decision. This Section. some saying that India's action leaves it open to the charge of breaching the Vienna convention which governs global diplomatic ties . We want to protect our citizens on our ships. so they should be given the benefit of the same. On the first instance.” The second and the major instance occurred. in India. Italy says it is on solid legal ground in seeking international arbitration in the case. Daniele Mancini. 2013: The Italian government says it will return to India two marines facing murder charges in the shooting deaths of two fishermen off the Kerala coast. which gives certain provisions of the Vienna Convention on Diplomatic Relations. from leaving the Indian Territory. citing various legal provisions in its favour. i. Further. And on other hand. who said he had given the undertaking on behalf of the Italy government. (hereinafter “Vienna Convention”) including the principle of diplomatic immunity. This decision of the Hon‟ble Supreme Court created a furore.e. 2013: Amidst a diplomatic row with India. As a matter of fact of law. Though on the face of it. India‟s constitutional scheme is. 2013: Italian Ambassador Daniele Mancini claims complete immunity under the Vienna Convention. unambiguously dualist. However the Hon‟ble Supreme Court of India did not accepted there plea and dictated that “You (marines) have killed an Indian citizen on an Indian ship. the Two Italian Marines pleaded that there action was covered under diplomatic immunity. it requires domestic . Supreme Court makes it clear to the envoy that a person who came to the court as a petitioner cannot claim any immunity. takes effect from Section 2 of the Diplomatic Relations (Vienna Convention) Act. senior advocate Harish Salve pulls out from representing that country in court. in principle. the court also refused to take the argument of diplomatic immunity claimed by the Italian ambassador.

has arguably waived its claims to any sovereign immunity in respect of this matter. In Indian National Steamship Company v. CONCLUSION . The Republic of Italy. This is especially so when the international law in question „modifies the laws of the state‟ [ Maganbhai Ishwarbhai Patel v. Under Article 41 of the Vienna Convention. sovereign immunity can be waived in respect of counter-claims in matters where proceedings are initiated in a domestic court by a diplomatic agent. cannot. it relinquishes its immunity. if it appears that Italy is in breach of its obligations under the Vienna Convention. Maux Faulbaum . Section 4 of the Act can be used by India to withdraw certain privileges and immunities. in law. and by consequence. such disregard has fundamentally tarnished the dignity of the Supreme Court of India. Consistent state practice in other jurisdictions supports this view that when a state itself institutes proceedings before a foreign national court. Italy. Union of India . by approaching the Supreme Court of India through a writ petition itself. it would be entirely permissible to withdraw Italy‟s.  incorporation. and by necessary implication its Ambassador. the Italian Ambassador has shown wanton disregard for the laws and regulations of India. be allowed to have its cake and eat it too. and brazenly disrespecting its order. In these circumstances. it is a duty on those enjoying privileges and immunities to respect the laws and regulations of the receiving (host) state. (Supreme Court. 1969)]. Moreover. According to Section 5 of the Act read with Article 32 of the Vienna Convention. There is little doubt that by falsely swearing on affidavit before the Supreme Court of India. Finally. the Calcutta High Court held that the Government of Indonesia in approaching the Calcutta High Court for relief had waived its sovereign immunity. its Ambassador‟s immunity from jurisdiction of Indian courts in this matter.