Two sides keen to ensure incident does not affect ties

The New Delhi-Rome standoff over the killing of two Indian fishermen off the Kerala coast is not over yet with the detention of two marksmen, although the two sides are trying to isolate the incident from their “multi-faceted'' bilateral ties.

Besides engaging diplomatically, Italy is working the Catholic channels via the Vatican to allow the two marines to leave for Rome after paying some compensation to the families of the killed fishermen. “But India is firm. Their case will be investigated here. And then, unless the courts decide otherwise, they should be tried here,” said highly placed sources, while disputing all the three legal approaches Italy is taking to secure the release of its two citizens.

The Italian Deputy Foreign Affairs Minister will meet his counterpart Perneet Kaur on Wednesday and the Foreign Minister arrives next week on a prescheduled visit to convince New Delhi that any of their nationals involved in criminal activity anywhere are subject to Italian law.

“This is their main approach,” said the sources while pointing out that Section 4 of the Indian Penal Code says that any crime committed against an Indian or on an Indian vessel “wherever it may be'' can be tried in India.

“So there is extra-territorial application of both Indian and Italian laws. As representatives of India, we will go by the legal process here. There are differences with Italy on facts, procedure and processes but we are willing to engage with them. If they so desire, we will provide consular access to the two detained by the Kerala Police,'' said official sources.

The second approach Italy is taking is to argue that the UN Convention on the Law of the Sea (UNCLOS) permits prosecution only by the state whose flag the ship is flying or the state of which the citizen is a national (in both cases Italy). The third is that their ships have the right to take on pirates.

“We think Italy is overdoing this. According to us, Article 97 of UNCLOS to which they are referring deals only with collision of vessels and other such incidents. Italy also feels it has the right to take action against pirates. In this too they are in the wrong. This right is given only to naval vessels and not merchant ships,'' said highly placed sources, basing their explanation on the advice given by the MEA's legal cell.

Officials here also confessed that both sides are facing an issue like this for the first time.

Asked if there were precedents of this nature, official sources pointed out that an Indian fishing vessel was attacked by nationals of another country in 2008 and “we know what happened after that in Mumbai.''

They also felt whether the ship was in India's exclusive economic zone (EEZ) or not shouldn't be an issue. “Italy and India have the same clauses pertaining to extra-territorial jurisdiction. The ship was over 5,000 km away from the Italian coast. Don't make an issue of the EEZ aspect.''

“Our goal is to isolate this incident. That's why we explained the legal framework on Sunday to the Italian delegation. Besides law and order is a state subject,” added the sources.