Thursday, March 21, 2013

Travel restrictions on Italian diplomat to India and Vienna convention

According to reports, on 15th February 2012, two marines from Italian Navy Vessel Protection Detachment(VPD) travelling on board of oil tanker 'MV Enrica Lexie' shot and killed two unarmed Indian fishermen off the coast of Kerala, in India's contiguous zone (but not in Territorial waters). After close to one year, for exercising their right to vote in Italian elections, Supreme Court of India (SCI) allowed the two accused marines to go to Italy for a period of four weeks based on the guarantee of Italian Ambassador to India, Daniele Mancini.

However, after the marines reached Italian shores, Italian foreign minister Giulio Terzi announced that, marines will not come to India any more to stand on trial. Technically speaking Italians didn't breach the guarantee till now, as 22nd March is the last date for them to return. However, after the message from Italy, SCI asked the ambassador not to leave the country. Please note that, he is neither arrested, detained nor under any travel restrictions within Indian Territory.

The problem here is, if Italy refused to send marines back to India on that particular date. This will be considered as the breach of word given by Ambassador to SCI. Will SCI/GOI arrest him? In other words can SCI/GOI order his arrest? In order to answer this question, we have to look in to an old treaty called 'Vienna Convention on Diplomatic Relations - 1961', signed and ratified by both Italy and India.

According to Article 27 of Vienna convention, 

"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

Article 32 further states that, "1.The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. 2. Waiver must always be express."

Please note that Ambassador gave that undertaking on behalf of Rome and the decision not to send marines back was also taken by Rome. Moreover, Vienna convention explicitly prohibits the detention or arrest of diplomat unless the impunity is waived by sending state. In this case sending state is Rome and they didn’t waive the immunity. In such a situation arresting or detaining Daniele Mancini will amount to breach of International conventions, signed and ratified by India.

And please, don’t bring national honour in to these issues. This is a legal dispute between two nations, where Italy breached their word given to Indian SC through the ambassador. Opposition parties should not unnecessarily get excited and pressurize government to become rigid to the extent of arresting him. At the same time, we can't simply ignore such a breach of trust from Italy's side.

As far Ambassador’s issue is concerned, government need to handle it professionally without succumbing in to unnecessary pressure from opposition, politicians from Kerala and media. In the mean time, I can only hope that Daniele Mancini won’t try to make the matters worse by going to any Indian airport.


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