By Paramjit S. Sahai,  former Indian Ambassador and Principal Adviser, CRRID (India) and Faculty Member, Diplo Foundation. The issue of diplomatic immunity to the Italian Ambassador in India, arising out of the case of trial of two Italian Marines in 2013, acquires importance, as it is impregnated with far greater international implications, going beyond the legal issue of immunity of a diplomatic agent. It becomes a test case in determining the domain of national sovereignty, when it criss-crosses with international commitments.  Diverse views have been expressed, depending upon the understanding of the issues involved and the interpretation of relevant rules, including international conventions. Prima facie, the order of the Supreme Court in March 2013 raised a fundamental legal question over the diplomatic immunity enjoyed by a diplomatic agent (Ambassador).  Was this immunity absolute or there were limitations to the enjoyment of the same. It was not only those legal issues that had to be addressed by the parties involved, the governments of India and Italy, but also their ramifications beyond legal frontier.  How would it affect the bilateral relations between the two countries?  Would it affect the whole framework of the 1961 Vienna Convention on Diplomatic Relations (VCDR)? Diplomatic immunity is one of the pillars of the VCDR, which respects the principle of inviolability of the person of the Ambassador. A critical situation had arisen, as the Italian Government refused to honour the undertaking given by its Ambassador to India, Daniele Mancini, in a sworn affidavit before the Indian Supreme Court, ensuring the return of the two marines – Massimiliano Latorre, and Salvatore Girone.  These marines were undergoing trial for the killing of two Indian fishermen and were allowed in good faith to leave India for four weeks to Italy, to cast their vote in the national elections.  Peeved at Ambassador Mancini, failing to honour the undertaking for the return of the two marines to India, the Supreme Court had given an order, barring him to leave India till April 4, which was the next date for the hearing of the case.  The last minute decision by the Italian government to ensure the return of the two Marines on March 22, 2013, resulted in this becoming a dead issue. The issue of diplomatic immunity had come into sharp focus, with the Supreme Court categorically stating that Ambassador Mancini had subjected himself to its jurisdiction, having sought its refuge. He was thus fully answerable to any counterclaims, as he was now clearly under breach of his undertaking, given to the Supreme Court. He had thus ‘lost trust’ and non-fulfillment of his undertaking before the Court had resulted in his having “no immunity”. The Supreme Court felt that it was competent and within its sovereign right to inflict punishment to the Ambassador, who was barred to leave India.  The case had acquired larger political overtones engulfing bilateral relationship between India and Italy.  At the Indian end, Prime Minister was forced to make the statement that the Italian behaviour was “unacceptable” and warned Italy to be prepared to face “the consequences”. At the Italian end, it became a domestic issue among different interests, resulting in the resignation of its Foreign Minister. Finally, the Italian Prime Minister took the call to ensure the return of the two marines as he reportedly felt that Italy was likely to be isolated internationally. Let us, first look at the legal issue of immunity as gleaned through various articles of VCDR.  Article 29 categorically states that ‘the person of a diplomatic agent shall be inviolable’.  It further adds that ‘he shall not be liable to any form of arrest or detention’. Article 32, however, provides for waiver of this immunity, while further stating that such ‘waiver must always be express’.  Apart from this, it recognises that a diplomatic agent could be deemed to have deprived himself of immunity for ‘initiating proceedings’ and he could not ‘invoke immunity’ for any ‘counterclaim, directly connected with the principal claim’. Seen in the above context, Ambassador Mancini had voluntarily subjected himself to the jurisdiction of the Supreme Court and had thus tacitly accepted the waiver of his immunity and therefore, had to be prepared to face the consequences, arising thereof. The Supreme Court, therefore, was in full right to pronounce its judgement, as deemed necessary by it. Could there be any limitations on the nature of judgement?  Article 29 states that ‘he shall not be liable to any form of arrest or detention’. Would the Supreme Court order barring Ambassador Mancini would fall under this category?  Would restraining him from leaving India would impact on his right of freedom of movement, which is also provided for under the same article? A far weightier question also arises, as this was not the case of only passing judgment, but also its execution.  Here, the VCDR provides a two stage mechanism. Firstly, relating to the waiving of diplomatic immunity, prior to trial. Secondly, the need for a ‘separate waiver’ and that too ‘express waiver’ before its execution under Article 32 (4). It would be here that the acumen of the legal community would have been tested, if the Italian government had not ensured the return of the two marines to India. Would it have stayed the test of international jurisprudence as India has ratified VCDR and has thus fully accepted the obligations thereunder? It was not only the legal issue that needed to be resolved, but also its political dimension had to be kept in view. How would it affect India’s bilateral relations with Italy and other EU members?  Prima facie, it was going to hurt, with India already having decided to downgrade the level of diplomatic relations by deciding not to send the new Ambassador to Italy.  It would have also resulted in the downsizing of bilateral economic, commercial and defence links. It would also have its toll on Indian diaspora, which has a sizeable presence in Italy; a large number of whom find themselves in detention centres as undocumented persons. Any talk of diplomatic immunity has to keep in view the spirit of the preamble to the VCDR, that it is to ‘ensure the efficient performance’ of the diplomatic missions and not to be used in a dishonest manner that misleads the highest court in a respected democratic country. The Italians had lit the fire and they extinguished the same before this fire could engulf India-Italian relations further into a deeper inferno.  For the diplomatic community, this case should make an interesting study, how core legal conflict points needed to be addressed.  Should an Ambassador mislead the highest court in making a false commitment?  If so, could he still take recourse to diplomatic immunity? Further, how could the highest court ensure compliance of its judgment against an Ambassador, who enjoys personal inviolability? There is a need to look afresh at the issue of diplomatic immunity from criminal jurisdiction under Article 31, read with Article 41 that relates to the obligations to respect the laws and regulations of the receiving state (Art 41).

 

 

 

 

 

 

 

 

 

 

 

 

 

By Roy Lie A Tjam

Towering high above the lush green woods of Scheveningen (Schevningsebosjes), in an impressive edifice, is the Embassy of the People’s Republic of China.

Within the chancellery I met with H.E. Ambassador Chen Xu, one of the last group of diplomats to present credentials to H.M. Queen Beatrix. Chen describes the ceremony as a “once in a lifetime” experience.

In addition to being a family oriented man, with a wife and a teenage son, Ambassador Chen has worked in various multilateral posts, notably twice at the Security Council. Although he only recently took up the post of Ambassador to the Netherlands, Chen believes that bilateral representation is more focused than multilateral representation and that The Hague, with its various international institutions, is as much bilateral as multilateral.

The Ambassador envisages benefiting fully from the international institutions located in The Hague, there are already Chinese judges at the ICJ and the ICTY, and China is a member of the OPCW.

Chen believes that global questions require joint efforts which makes friendships and cooperation essential since they help create a peaceful atmosphere within which consensus on matters of mutual concern can be reached. One example cited by the Ambassador of reaching a consensus was the agreement reached by China and the EU on the solar panel question where ultimately both parties were satisfied with the end result. Win-win is one aphorism that Chen frequently uses.

Foreign relationship

China enjoys economic growth, but what role will the country play in global affairs, what foreign policy will it follow in the future and what impact will this have on the world?

As Ambassador Chen elaborated, despite great changes to the international landscape, independence and peace have been the two defining features of China’s diplomacy and the cornerstones of its foreign policy for more than sixty years. China is willing to become more involved in global affairs through collaborating with others in order to make an always more useful contribution.

In this context the recent successful visits by H.E. President Xi Jinping to various parts of the world including Russia, the African continent, to Trinidad and Tobago and Costa Rica were, according to Chen, of great importance. A new positive chapter in the bilateral relationship between China and the United States was agreed upon including certain core elements such as mutual respect and win-win cooperation.

Sino – Dutch relationship     

After 41 years of diplomatic ties, China is reinforcing its relationship with the Netherlands, its second largest trading partner within the EU with a turnover of 68 billion USD. There are other key connections between the two countries such as in education, where over 8000 Chinese students study at Dutch universities, as well as the Netherlands expertise in water resource management, where the substantial Chinese agricultural sector could benefit from Dutch experience.

Forging ahead

China’s leadership has rallied the Chinese people for the realisation of the two centenary goals and the Chinese dream of national renewal. Ambitious plans are being outlined for 2020 and 2050, by which date China hopes to achieve a state of wellbeing for all citizens.

The road to attaining this goal has already been set out. It may be more of a bumpy road than a smooth ride, but China has embarked on the right path of socialism with Chinese characteristics. Ambassador Chen believes that with strong leadership and hardworking citizens, China will continue to move forward.

Meanwhile, China promises to be more active in international cooperation, addressing topics such as anti-terrorism, climate change, food security, etc. China will actively seek joint efforts with other countries, working towards establishing a harmonious world of lasting peace and common prosperity.

Ambassador Chen wishes the people of the Netherlands happiness.

Remember: the Embassy is at your disposal.

 

  By Willem Post. The Peace Palace centenary spurs to the establishment of ‘The Hague Approach “.The Hague’s  ‘ Temple of Peace ‘is exactly 100 years old, America expert WillemPost stresses its relevance.Is the Peace Palace a mirage on the horizon? A naive figment of nineteenth centurypeace activists as Bertha von Suttner and Andrew Carnegie who financed it?n 1914 at the commencement of the First World War, the journalists of the news paper New York Time flocked  Andrew Carnegie’s mansion in Manhattan N.Y.eagerly awaiting his comments on the fate of the new permanent Court of Arbitrationin The Hague, should be now deemed a failure? Failure, on the contrary, retorted. Carnegie.  He noted in an interview with the New YorkTime: ” The ‘ horror.’ of this world proves even more that men who have the capacity to reason, should rather focus on conflict prevention.Carnegie pointed to millions of years of primitive struggle and found that gradually people should agree to settle. their disputes through the courts The more people develop themselves, the urge to reason will prevail, and this will bring about a culture of ‘rule of law’ between nation states. Carnegie stressed the importance of good education and therefore sponsored 3000libraries.The courts located in the Peace Palace, including the International Court of Justice,which is the highest judicial body of the United Nations, were able to avert hundreds of conflicts and wars over the past decades. The Oslo Peace Research Institute has calculated that the number of wars between nation states for decades now show a decrease. Yet there are heart breaking wars, as the images of chemical attacks in Syria recently attested. The relevance of the Peace Palace for the years ahead lies in a holistic approachto participation in war. Prevention. One can not deny the fact that there are already hopeful omens… The courts in the Peace Palace are successfully progressing in conflict prevention..f withstanding the successful progress for some reason war breaks out, the international community in exceptional cases, even without support from the Security Council, could intervene in the case of genocide. For the first time in history, more than 160 perpetrators have been convicted for warcrimes by the Tribunal for former Yugoslavia. Impunity is no longer condoned. . The ICC operates worldwide, even though the focus for obvious reasons is not exclusively but especially in Africa.There appears to be a missing link in the chain of peace keeping operations.The reconstruction in conflict torn areas is still too fragmented, there is a need for close cooperation. Action is urgently required and is attainable.Mayor Josiah van Aartsen has presented H.M. King Willem- Alexander and H.E. the Secretary – General of the United Nations Ban Ki Moon, with the results of a scientific study that focuses on the practice of reconstruction. The study was done by the ‘The Hague Institute for Global Justice in collaboration with the University of Leiden andother renowned universities and local actors in countries like Libya. What matters is an implementation of a holistic approach by “a coalition of motivatedentities”. Not an ‘ ambitious ‘ international community but primarily local actors such as representatives of civil society on the spot. In developing a ‘ rule of law ‘ mentality all segments of society should be involved, the business community should not certainly be excluded There is no substitute for realism marred with optimism. The Peace Palace will in the next 100 years certainly be even more necessary as instrumental in preventing wars In the spirit of what Andrew Carnegie words; “Come it slow, come it fast, but it is law which comes at last.”