Thursday, March 21, 2013

Diplomatic Immunity of the Italian Ambassador

Shreya Rastogi (V Year, NLU Delhi) and I co-authored an article titled 'Diplomatic immunity in peril' that appeared as the lead op-ed in The Hindu yesterday (20th March). We argue that the Supreme Court's order restraining the Italian Ambassador and the 'waiver of immunity' argument in the contempt proceedings being considered are without basis in law. The outrage at Italy's actions are undoubtedly justified but the response to it cannot be to sacrifice the commitments we have made to protect the personal safety of diplomatic agents.

Shifting the focus to the legal proceedings against the Italian Ambassador can also be seen as a convenient way out for the Government. Rather than putting pressure on the Government to take the difficult political and diplomatic decisions to address the marines issue, the focus has been successfully shifted to what the Supreme Court would do. Of course, what cannot be ignored in this entire situation is the controversy surrounding the Government of India's $750 million deal to buy helicopters from the subsidiary of Finmeccanica, Italy's largest industrial group as far as high technology is concerned.

For an opposite view on the immunity of the Italian Ambassador, please read Arghya Sengupta's article 'Lawful responses to unlawful actions' that appeared in The Hindu on 16th March.

5 comments:

Shamnad Basheer said...
This comment has been removed by the author.
Shamnad Basheer said...

Excellent piece Anup! Also here are links to other pieces on this theme. Deepak Raju wrote in the Hindu.

http://www.thehindu.com/opinion/op-ed/lawful-responses-to-the-italians-which-law-are-we-talking-about/article4526545.ece

And Satvik Verma wrote on his blog here.
http://satvikvarma.wordpress.com/2013/03/16/honour-above-diplomacy/

windwheel said...

The Indian Govt. appears to have waived diplomatic immunity from Contempt of Court proceedings for all its agents abroad. Anti-Indian groups will not be slow to take advantage. Any small time District Court can now summon an Indian diplomat and order his incarceration for failure to appear. This is because diplomatic immunity is reciprocal. Even if the State Dept. of that Country issues a notice saying the Indians have diplomatic immunity, the Judge can ignore the notice citing the Indian Supreme Court's actions in this regard.
India has scored a spectacular own-goal. Perhaps there is some hidden agenda- e.g. more lenient terms for the FTA with the E.U- or perhaps the Indian Govt. wants to show the world that its Judiciary, though using a legal language which appears conventional, has its own unique interpretation of that language.
American diplomats used to say 'the problem with the Indians is not that you can't get them to agree to something but that they can never agree as to what it is that they have agreed to'.

Guptan Veemboor said...

In connection with this topic of Italian marines there is an exhaustive article in The Hindu on the issue of jurisdiction of this case between India and Italy (http://www.thehindu.com/opinion/lead/its-our-boat-our-courts/article4538854.ece) Author has argued that as per the Constitution of India, India has power to extend its laws to contiguous zone also. As far as I could make out the constitution says that it should not contradict any international laws already existing. As per UNCLOS of 1982 to which India is also signatory the criminal jurisdiction of coastal states extend only up to 12 nautical miles of the territorial waters. In the contiguous zone it has authority on a)Security b) immigration, customs and pollution. Then how we can have authority on criminal activity also? The author has rightly argued that in the present times EEZ goes to 200 nautical miles has too many activities by the coastal states and so criminal jurisdiction also should be vested with coastal state. It is quite true but can it be done by a country alone or by an international law? Can the right to protect fixed installations be extended to all floating units as well. In this case it is an Indian boat was involved. If it was between two entities of two different nations other than India, will India act like the local police man?

Unknown said...

I have few doubts on some of the views expressed by you which I am describing in some detail below:

1. Under the sub-heading "Participation in proceedings", you have mentioned in last few lines and I quote: "However, under Article 32(3) of the Vienna Convention, immunity cannot be claimed when a counter-claim is filed in a proceeding initiated by the diplomatic agent. To make that exception to diplomatic immunity applicable in this case, any potential contempt of court proceeding against the
Italian Ambassador will have to be viewed as a counter-claim in the
writ petition filed on behalf of the marines. However, the law on
contempt of court in India does not permit such a reading. According
to the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, the contempt of court proceedings are separate and independent of the parent matter."

You have tried to interpret the term "counter-claim directly connected with the principal claim" as it appears in Article 32(3) of VCDR (an international treaty) and determine whether a contempt of court proceeding would fall within it. The terms of the text of the treaty have to be interpreted according to well-known principles of treaty interpretation codified in Articles 31 and 32 of Vienna Convention on Law of Treaties. The meaning given to the term would therefore be independent of the way in which internal law of any signatory party treaty treats a particular kind of proceeding (as a counterclaim or independent action). The meaning of "counter-claim directly connected
with the principal claim" cannot be determined in light of whether
Indian law treats a contempt proceeding as separate and independent or as counter-claim. This matter has to be determined through principles of treaty interpretation. Could you please clarify this issue?

2. Secondly, under the sub-heading "Constitutional Claims", the
article mentions and I quote: "In a case where the domestic help of a
diplomat from Bangladesh sought to enforce his right against servitude
under the Thirteenth Amendment, the United States District Court
(Southern District of New York) in Ashik Ahmed v AHM Sadiqul Hoque
(2002) followed precedent established by the U.S. Supreme Court to
hold that constitutional claims would not trump diplomatic immunity."
To my mind, this case does not seem to have any direct bearing on the
question whether Article 129 of the Constitution applies in this case
to override claims of diplomatic immunity under VCDR as implemented
through a Central law. The case talks about enforcement of a
'constitutional right' by an individual and not about 'exercise of a
constitutional power vested in a constitutional authority'. Given the
manner in which Supreme Court had traditionally interpreted its powers
under Article 129 etc. (irrespective of the correctness of that
approach), it seems to me that the only thing that may restrict
Supreme Court's power is another constitutional provision. In any
case, the decision of US court is of entirely different nature in a
different context and application seems too far-fetched. That is just
my humble opinion in view of my inability to see the analogy and I do
not intend to offend you in any manner or question your hard work in
digging out the decision.

Raghav Sharma