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| Edited By: |Source: DNA |Updated: May 04, 2016, 08:20 AM IST
The 2012 killing of two Indian fishermen by two Italian marines aboard in what is being described in the Permanent Court of Arbitration as the “Enrica Lexie incident”, which refers to the Italian oil tanker, has taken a new turn. The Arbitral Tribunal has allowed one of the marines, Salvatore Girone, who has been held prisoner at the Italian embassy in New Delhi as prisoner, to go home, while conceding that the Supreme Court of India’s jurisdiction over his bail conditions is not in any way compromised. It can be argued that this is as fair and as neutral a decision that the international court has been able to deliver. It has to be remembered however that the present decision is pending the consideration of the main case.
The case has been taken up under the United Nations Convention of the Law of the Sea (UNCLOS). Italy has taken the case to The Hague in June 2015 saying that the diplomatic attempts to resolve the issue have failed. In August 2015, the International Tribunal of the Sea (ITLOS) has directed the two countries not to persist with any judicial measures with regard to the dispute. As a consequence, the Supreme Court of India has “stayed” the proceedings of the case. Now the Arbitral Tribunal has said that there was a prima facie dispute between Italy and India. That is, it has agreed that the case is admissible.
It is in this background that Italy has pressed that the marine remaining in India, Girone, should be allowed to return home. The other marine, Massimiliano Latorre, had already gone back as he had suffered a stroke. The argument made by Italy pleading for Girone’s return is that in case the tribunal were to decide that the Indian courts have no jurisdiction over the marines, then Girone would have suffered from “irreparable prejudice”. But it has agreed that “he can be sent back to India if this is required by the final decision of the Tribunal.” Hence, the Supreme Court’s jurisdiction over Girone’s bail conditions remain. India’s claim that its position remains unaltered is indeed the fact.
The Tribunal as a matter of fact strengthens India’s position by noting: “With appropriate guarantees of return, no material changes would result for India from an alleviation of Sergeant Girone’s bail conditions. Appropriate guarantees should include, as stated by Italy in its Request, a binding undertaking by Italy to guarantee the return of Sergeant Girone should this Arbitral Tribunal find in India’s favour on the merits.”
It would be necessary for many in India, the government as well as the people, to recognise that it will be necessary to be part of the international legal systems because in a globalised world, this will indeed be the norm. This does not, as it may appear, in any way compromise or dilute Indian sovereignty. The sphere of sovereignty will now function in a wider institutional arc, which includes the World Trade Organization (WTO) dispute resolution mechanism. The question now is whether criminal cases can be tried through the international system. If this were to happen, then things might become a little more complicated than they are now. The Italian contention is that it is bound to defend the marines because they are considered officials, with diplomatic immunity, and they can only be tried in Italian courts. It is now for the tribunal to say whether it is a legally sustainable position.
