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Opinion Lead

Published: March 20, 2013 00:09 IST | Updated: March 20, 2013 00:10 IST

Diplomatic immunity in peril

Anup SurendranathShreya Rastogi

Italian Ambassador Daniele Mancini. File photo.

The privilege Daniele Mancini enjoys under the Vienna Convention, personally and as an Ambassador, is absolute. Themarines issue should be resolved politically

The Supreme Courts order restraining the Italian Ambassador from leaving India and the possibility of contempt

proceedings against him are without any basis in law. Undoubtedly the Republic of Italy did file a writ petition throughthe Ambassador and he did submit an affidavit stating that the marines would return to India. However, those factsalong with ItalysNote Verbalethat the marines will not be returning do not provide sufficient legal grounds for actionagainst the Italian Ambassador. The order restraining the Ambassador and the potential contempt of court proceedingsare a serious breach of Indias obligations to provide diplomatic immunity under the Vienna Convention on DiplomaticRelations, 1961.

Personal inviolability

Article 253 of the Indian Constitution requires Parliament to introduce a legislation to give effect to an internationalagreement. In light of this provision, Parliament enacted The Diplomatic Relations (Vienna Convention) Act, 1972 togive effect to Indias obligations under the Vienna Convention. Within this legal framework, two questions arise in thecurrent context: (i) Was there sufficient legal basis for the Supreme Courts order restraining the Italian Ambassadorfrom leaving the country?; (ii) Can contempt proceedings be instituted against the Italian Ambassador personally fornot adhering to the commitments made in the affidavit submitted to the Supreme Court?

The Supreme Courts order restraining the Ambassador goes against the guarantee of personal inviolability ofdiplomatic agents. Article 29 of the Vienna Convention states that a diplomatic agent shall not be liable to any form ofarrest or detention and the receiving state shall take all appropriate steps to prevent any attack on his person, freedomor dignity. While it is clear that in this case, Daniele Mancini did act in his official capacity while submitting theaffidavit, Article 29 would protect him from any form of arrest and detention even if his actions were of a personalnature. It is precisely to avoid holding a diplomatic agent responsible for the acts of the sending state that Article 29provides protection from any form of arrest or detention.

On the question whether the order restraining the Italian Ambassador from leaving India amounts to detention underArticle 29, the judgment of the International Court of Justice in Congo v. Belgium(2002) is instructive. The ICJ notedthat measures that raise the fear of arrest even if they do not in fact interfere with the actual fulfilment of diplomatic

activities would go against the guarantee of personal inviolability under Article 29. The order of the Supreme Courtrestraining the Italian Ambassador from leaving India and the subsequent alert issued to all airports by the Ministry ofHome Affairs goes against this fundamental protection granted to diplomatic agents.

Immunity and waiver

Governing the framework of diplomatic immunity is a fundamental commitment to the principle that diplomats in

omatic immunity in peril - The Hindu http://www.thehindu.com/opinion/lead/diplomatic-immunity-in-per...

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foreign countries cannot be held personally responsible for acts of the government they represent. Article 31 of theVienna Convention provides that a diplomat shall enjoy immunity from the exercise of criminal and civil jurisdiction.The criminal immunity that Daniele Mancini enjoys, both personally and as an Ambassador, is absolute. There are acouple of exceptions to his civil immunity but those have no application in this case. In essence, diplomatic agents canliterally get away with murder unless there is a waiver of diplomatic immunity.

The Supreme Court in the hearing on March 18 clearly does not dispute the position that in normal circumstancesDaniele Mancini would have diplomatic immunity. However, the Court seems to be seriously considering the argumentthat the Italian Ambassador has waived this immunity. Those advocating the position that the Italian Ambassador haswaived his diplomatic immunity rely on two acts of the Ambassador. They first cite the fact that the writ petition filedon behalf of the two marines was filed through the Ambassador and secondly, highlight the affidavit filed by theAmbassador assuring the Supreme Court that the marines would return. However, neither of these two acts issufficient to establish a waiver of immunity. The Vienna Convention does recognise the possibility of a waiver ofimmunity under Article 32. However, under this provision, immunity has to be expressly waived by the sending stateand there is no possibility of inferring a waiver of immunity from the acts of its diplomatic agents. It is evident that theItalian government has not sent any such express waiver.

The argument has also been raised that this position on waiver has been altered by the legislation Parliamentintroduced to enforce the Vienna Convention. That claim is true to the extent that the 1972 Act recognises that, alongwith the sending state, the Head of the Mission can also waive immunity. However, what the 1972 Act does not alter isthe requirement that there must be an express waiver of immunity. There has been no express waiver of immunity inthe current case either by the Republic of Italy or its Ambassador to India.

Participation in proceedingsThe filing of a writ petition through the Ambassador on behalf of the marines cannot be considered a waiver ofimmunity. In all proceedings so far, it has been Italys position that India lacks territorial jurisdiction to try the marinesalong with the claim that the marines are protected by sovereign immunity. It would lead to absurd consequences if theargument that participation in proceedings to question jurisdiction is construed as waiver of diplomatic immunity.Similarly, reneging on the assurance given to the Supreme Court in his affidavit cannot be the basis for institutingcontempt proceedings against the Italian Ambassador. Providing such an affidavit does not meet the requirement of anexpress waiver under Article 32(2) of the Vienna Convention. Courts in other parts of the world, like the England &Wales Court of Appeal inPropend Finance Pty Ltd & Ors v Sing & Anr(1997), have held that an undertaking given by adiplomatic agent in a court proceeding would not amount to an express waiver of immunity in contempt proceedingsthat may be initiated. However, under Article 32(3) of the Vienna Convention, immunity cannot be claimed when acounter-claim is filed in a proceeding initiated by the diplomatic agent. To make that exception to diplomatic immunityapplicable in this case, any potential contempt of court proceeding against the Italian Ambassador will have to beviewed as a counter-claim in the writ petition filed on behalf of the marines. However, the law on contempt of court inIndia does not permit such a reading. According to the Rules to Regulate Proceedings for Contempt of the SupremeCourt, 1975, the contempt of court proceedings are separate and independent of the parent matter.

Constitutional claims

Article 129 of the Constitution empowers the Supreme Court to punish for its contempt. It has been argued that thisconstitutional provision must prevail over diplomatic immunity as Section 2 of the Diplomatic Relations Act mentionsthe overriding effect of the Vienna Convention over any other law which would exclude the Constitution. While theIndian Supreme Court is yet to clarify this issue, the position in the United States is well settled. In a case where thedomestic help of a diplomat from Bangladesh sought to enforce his right against servitude under the ThirteenthAmendment, the United States District Court (Southern District of New York) inAshik 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. The Court held it was a doctrine created not solely by a congressional enactment but frominternational treaty obligations, entered into by the executive branch with the consent of the Congress. TheGovernment of India is a signatory to the Vienna Convention by virtue to powers vested by the Constitution, which hasthen been made a part of our domestic legal system as per the procedure provided in the Constitution.

Of course, the actions of the Italian government demonstrate wanton disregard for the authority of the Supreme Courtand are a breach of faith and diplomatic protocol. However, none of that gives either the Government of India or theSupreme Court any legitimate legal recourse against the Italian Ambassador. This issue must be resolved squarely inthe political realm. By restraining the Italian Ambassador and contemplating contempt proceedings, the SupremeCourt and the Government of India are seeking legal solutions where none is available.

(Anup Surendranath is an Assistant Professor of Law and Shreya Rastogi is a final year law student at National LawUniversity, Delhi)

Keywords: Indian fishermen killing, Italy marines issue, India-Italy diplomatic row

Printable version | Mar 20, 2013 9:49:41 AM | http://www.thehindu.com/opinion/lead/diplomatic-immunity-in-peril/article4526523.ece

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