The Divergence Between International Law and Indian Law Applicable in Counter Piracy Measures: Analysed Through the Decision of the Republic of Italy v. Union of India
Arthad Kurlekar & Maithili Pai
Volume 6 Issue 3 (2013)
The case of Republic of Italy v. Union of India, where two Italian marines were being tried for allegedly shooting two Indian fishermen, came up be- fore the Supreme Court of India in 2013. The case sparked a diplomatic row between the two countries, primarily due to a strong difference of opinion with regard to the question of which of the two countries have the legal jurisdiction to try the case. While the Supreme Court has held that India has the jurisdiction to try the case, it did not explore the nuances of the relationship between domestic and international law and did not take the opportunity to bring some clarity to the extremely ambiguous question of the permissibility of use of force in international law. Against the backdrop of relevant domestic and international law applicable to the case, and in light of international trends, the paper proceeds to argue that the use of force is applicable, subject to restrictions recognised under international law in counter piracy operations. Further, with regard to the jurisdictional issue, the paper also demonstrates that the Indian courts did not possess the jurisdiction to try the case, and it is Italy which is competent to try the case due the claim of functional immunity which shields the Italian marines.