International Controversy That Exists between India and Italy - Research Paper Example

Law of the Sea applied to the "Marò case” This case exposes the international controversy that exists between India and Italy. The case revolves around a situation where allegedly the Italian military guards shot and killed two Indian men supposing that they posed them a threat as pirates. Country between India and Italy should offer jurisdiction over the case and hence provide justice to the parties involved over the dispute (Anand p.g. 238). The first dispute is concerning the geographical position of the tanker and the fishing boat at the time the incident occurred. While India presents and argument that the vessels were in their territorial waters when the incident occurred, Italy on the other hand argues the vessels were in the high seas. There is therefore a deadlock on how international law should be applied in this case. It is worth noting the fact that the two countries are parties to the United Nations Convention to the Law of the Sea (UNCLOS). This law is found to codify much on modern international law that is presumed to cover most of the aspects that create a dispute between the two countries. This convention is therefore of use when determining the aspects like that of which country should have jurisdiction over this case. For example, article 111 of the convention gives a mention of all the conditions under which it is prudent for a given country to stop a vessel from another country while on the high seas (Chaturvedi). According to this jurisdiction, India may be found to possess jurisdiction over the case but the argument is that the two marines enjoy what is called functional immunity. There is therefore a likelihood of a conflict between Marò Case and the convention. The facts Of the case are that on the specified date the ship carrying the Italians and was on its way to Djibouti from Singapore was approached by a vessel off the coast of Kerala India. This ship was flying an Italian flag and had in it six Italian marines and according to the Italian government, these men wearing the Italian uniform are mandated with the task of protecting vessels with the Italian flag from any form of Pirate attacks while at sea. With this spirit, it is noted that the Italian vessels demanded for identification of the vessels, which was approaching them (Anand p.g. 250). In addition, they demanded that it leaves its path. The Italians further argument is that they fired at the approaching vessels as an intimidation tactic and they claim to have made the shots in water. This means that the shots were not directed to anyone specific and that no one was hit after which the Italian ship proceeded with its journey. It is later unearthed that the approaching ship was not a pirate ship but that of innocent fishermen (Forest). It also emerges that as opposed to the claim that no one was shot, the two fishermen onboard the fishing boat were found mysteriously dead. The Italian ship is later contacted to change its route and dock at port Kochi, they are tricked to come and identify some pirates who were claimed to have been arrested. it is a clear fact that no pirates had been arrested that night and this happens to be simply some smart move by the Indians to deceive the Italians with the aim of diverting their vessels. This move is against the Italian Law no. 130/2011 which states that as long as an Italian vessel is under attack by pirates, the uniformed officers on board are only allowed to take orders from a military personnel and the Italian ministry of defense. But it is strange that in this occasion, the ministry of defense was contacted but they did not raise any objections. Under the same law the military personnel on an exercise with a ship for commercial purposes is covered under the military criminal code of peace. The Italian ship is ordered to stay in port and not to leave by the Indian Authority and after two days it is reported that a number of armed Indian men boarded the Italian ship and gets hold of two Italian marines. These are the men presumed to have shot the two Indian men; together with the men, are guns and the Indian forces (Forest) take public property away. This raid is conducted in the presence of the Italian consul in Mumbai as well as the Italian military. The Indian forces argue that this is necessary for the sake of identification and confirmation that the shots were actually from the military guns. This raid is not however conducted according to the required and common procedures to assist get unbiased reports and findings. In an effort to release its military personnel and ship, the Italian government pursues this using both the courts and diplomacy with the Indian government taking into consideration the international laws. The diplomatic approach brings on board both the bilateral and diplomatic approach all in an effort to win over its allies and the international community that strives to fight piracy on this matter. Pending criminal proceedings, the two arrested Italians are with murder accusation charges against them (Galdorisi p.g. 402). The Italian government again goes ahead to argue that the Indian jurisdiction does not have the capacity to handle this case and they request that their military personnel be released on parole. The request is granted and the alleged criminals are released on bail. They are though ordered not to move far away from Kochi and this is enforced by ensuring the Indian authorities held their passports (Larson p.g. 75). The release of the two Italians is hinged on the argument that they are under the protection of functional immunity and irrespective of them pleading guilty, they will not be convicted as Italy will be presumed to be responsible for such crime. This is due to the observation that they were acting with the aim of protecting Italians against piracy and Italy is therefore responsible for the death of the two Indians in case the case wins. The marine who had the status of police officers were in the business of carrying out a public action. The Italian jurisprudence as well presents the argument that the incident happened in the high seas and according to international laws, UNCLOS article 97; such occurrences are normally handled by the country whose flag was involved in the incident (Lavalle p.g. 308). India on its argument rebuts all these claims by Italy; in their submission they argue that the ship which was aboard was neither a war ship nor a government ship. They argue the ship was a merchant ship which was being operated for business purposes and are therefore against the supposed enjoyment of immunity of whatever form. The function as conducted by the marines as well cannot be categorized as a public function by the Indian courts as the marines were only acting on behalf of the ship owners. This they argue is proved from the fact that’s the owner paid for the services of the marine (Lawrence p.g. 234). The marines must therefore face the full force of the law through arrest after which they face penal jurisdiction for murder given they killed two innocent Indians. They as well refute the Italian claims that the incident happened in the high seas since in as much as the incidents happened outside the Indian territorial waters, they argue that it was still within their contiguous zones. This is because the distance was within 12 miles beyond the outer waters of the territorial boundaries. Furthermore, the scene of the incident is claimed to be falling within the EEZ that is under the sub-judicator of the Indian authorities. According to the records, we find that Italy compensated the families of the victims before the case is concluded and this is concerning the practice as stipulated by the customs of the Italians. In as much as this practice by the Italians is viewed to remove the victims from the proceedings the Indian jurist view this as an act to silence the victims (Lavalle p.g. 311). The judgment of the case is delayed by the court in Kerala after which the Italian government introduced a claim before the Indian court to uphold their stand. This case even becomes complex as it is not clear before which courts would the determinations be made. The most viable option is that of bringing the dispute before the UNCLOS arbitration tribunal due to the fact that it seems to be the most straight forward approach. This is because both India and Italy are parties to UNCLOS and generally the incident took place in the sea which appears to be falling under the jurisdiction of the UNCLOS.In case the case is brought before the ICJ the issue of the exact location at the sea would surface as the one of contention (Marston p.g. 168). In its current form the case is subject to a lot of delays as the ship is still held captive together with the four marines not arrested and the master on board. The ship owner had as well presented a claim for his ship to be released a claim which was held and later rejected by the High court in Kerala. The ruling by the Kerala court is also nullified when the case is appealed in the appellate court. The release of the ship is by an order of the Supreme Court. However, though presented under very strict conditions that; the four marines still not arrested should appear before any Indian court on request and that Italy has the obligation of ensuring this (Oxman p.g. 360). The master of the ship is as well instructed to ensure the six appear before any summoning authorities within a deadline of six weeks and not more. The shipping company is also required to guarantee with a sum of 30 million rupees. The clear way of settling such a dispute is complex as the issue involves both the issue of law and the sea. In addition, the issue of the general international law also surface and this is outlined in the Italian note verbale. In the event the case is presented before the ICJ the extent to which the court will be able to execute its mandate will be dependent on the extent to which the two countries involved are willing to make compromises (Oxman p.g. 212). The Italian government has not submitted its commitment towards these in as much as India has with a lot of hardstands. The Italian government preferred the UNCLOS and its part XV section 2 to help provide a solution to this standoff. According to the international laws perspective, the issues two major issues that are subject to discussion and clarification are those of jurisdiction and functional immunity. The jurisdiction in the high seas in most instances is regulated by the UNCLOS. The applications of these conventions are therefore applicable in the domestic courts of all the countries that are signatories of such a form of status (Sharma p.g. 405). The challenge with this approach creates a situation where both countries would want to claim jurisdiction of the case. Italy base their argument of the claim on the fact that the ship was flying Italian flag and onboard were Italian citizens at the time the incident took place. Under Article 92(1) UNCLOS, the condition is that the country whose flag was flying at the time of the incident will take exclusive jurisdiction except in exceptional cases where international treaties are likely to take jurisdiction. Such exceptions will include piracy, slave trade, ships, which do not have a nationality and those, which exhibit false flags. Functional immunity on the other hand is subjective since this cannot be invoked in a case where a state organ commits an international crime (Shaw p.g. 367). This is as restated by the IDI resolution and this principle is therefore used to protect any state organ. Therefore, based on how the Italian lawyers articulate their argument concerning this approach they are likely to have their way or be refuted by the courts. According to “Status of the United Nations Convention on the Law of the Sea." Ocean Yearbook Online 5.1 (2005); some practices such as those where armed personnel board commercial ships in a bid to fight piracy have been useful ingredients in efforts to fight piracy. The effectiveness of this formation though depends on the policy framework of each state concerning allowing their military officers to embark on such exercises. Most country’s policies only allow the navy to act on pirates when on board such ships with the rest only allowed to use arms for self-defense. This is because the actions or activities of armed personnel on commercial ships si not closely guarded by the international law. It is worth noting that international action for such cases would be the best despite the rigidities experienced due to the inconsistencies of varied regulations by different countries. Based on the case in hand and the international law, the following issues are subjects of clarification. One is the question of jurisdiction in the high seas together with the description of what the high sea is. In the event that an incident is caused by a military personnel on grounds considered to be high seas, a controversy arises on a consideration of who the competent jurisdiction is given either country would claim the power of their flags. The UNCLOS is not clear about this and hence adjustments have to be made to accommodate these concerns for the sake of clarity. The International Court of Justice, 3rd ed. (1996); mentions that functional immunity on the other hand is at stake in such instances. This is because in most of the instances countries have tended to misuse this in the process of trying to defend their citizen. It is as well a fact that no new conventional law is required to support his law as in its description it is so clear. Such cases can be handled conclusively only when the commitment of the countries involved is assured. In such cases such countries or states are required to hold inquiries through suitably qualified parties into the marine casualty or on the whole incident on navigation in the high seas. Things like the exact locations of the incident must be addressed critically. The extents of the damage caused in terms of property and human collateral cases must be established without bias. The Law of the sea: multilateral treaties: (1996) further mentions that states ought to be open based on their approach to ensure that the supremacy of each states as guided by their respective constitutions are upheld. After all the basic fundamentals are clarified like the state with its flag high at the time, then both the states can proceed to consult the international conventions on their approaches in the event of such occurrences. Works Cited Anand, R.P. "The International Court of Justice and the Development of International Law." International Studies 7.2 (2005): 228-261. Print. Chaturvedi, Saurabh. "India Won’t Use Antipiracy Law Against Italian Marines." INDIAREALTIME 1.1 (2014): 1-1. Print. Forest, James J. F. Countering terrorism and insurgency in the 21st century international perspectives. Westport, Conn.: Praeger Security International, 2007. Print. Galdorisi, George. "The United States freedom of navigation program: A bridge for international compliance with the 1982 United Nations convention on the law of the sea?." Ocean Development & International Law 27.4 (2006): 399-408. Print. Larson, David L. "Conventional, customary, and consensual law in the United Nations convention on the law of the sea." Ocean Development & International Law 25.1 (2004): 75-85. Print. Lavalle, Robert. "An interesting discrepancy between the authentic texts of a multilateral treaty: Article 7 (3) of the United Nations Convention on the Law of the Sea." The International Journal of Marine and Coastal Law 20.2 (2005): 307-312. Print. Lawrence, T. J. The principles of international law. 4th ed. London: Macmillan, 2003. Print. Marston, Geoffrey. "The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index. [London and Canberra: Croom Helm; New York: St. Martins Press. Published in co-operation with the United Nations. 2003. Xxxvii, 192 and (Inde." The Cambridge Law Journal 44.01 (1985): 168. Print. Oxman, B. H. "The Rule of Law and the United Nations Convention on the Law of the Sea." European Journal of International Law 7.3 (2006): 353-371. Print. Oxman, Bernard H. "Observations on Vessel Release under the United Nations Convention on the Law of the Sea." The International Journal of Marine and Coastal Law 11.2 (2006): 201-215. Print. Sharma, O. P. "India and the United Nations convention on the law of the sea." Ocean Development & International Law 26.4 (1995): 391-412. Print. Shaw, Malcolm N. International law. 5th ed. Cambridge, U.K.: Cambridge University Press, 2003. Print. "Status of the United Nations Convention on the Law of the Sea." Ocean Yearbook Online 5.1 (2005): 462-466. Print. The International Court of Justice. 3rd ed. The Hague: ICJ, 1996. Print. The Law of the sea: multilateral treaties: a reference guide to multilateral treaties and other international instruments related to the United Nations Convention on the Law of the Sea. Rev. and updated as of 31 Dec. 1996. ed. New York: United Nations, 1997. Print. Read More