Talmon: The (Not So) 'Sacred' Word of an Italian Ambassador and Diplomatic Immunity for Contempt of Court

Stefan A.G. Talmon (Univ. of Bonn - Law) has posted The (Not So) 'Sacred' Word of an Italian Ambassador and Diplomatic Immunity for Contempt of Court (Indian Journal of International Law, forthcoming). Here's the abstract:

The Enrica Lexie case, concerning the death of two Indian fishermen off the southern Indian coast of Kerala after they were shot by two Italian marines in an alleged anti-piracy action to protect the Italian oil tanker "M.V. Enrica Lexie", has given rise to an interesting question of international diplomatic law: are proceedings for contempt of court permissible against diplomatic agents?

In February 2013, the Italian Ambassador to India submitted an affidavit to the Indian Supreme Court in the proceedings against the marines. A difficult situation arose when a few weeks later the Italian Government expressly announced that it would be acting contrary to the ambassador’s affidavit. The Indian Supreme Court, in response, adopted an order restraining the ambassador from leaving India. Only a last minute decision of the Italian Government to act in line with the ambassador’s sworn statement defused the situation.

The Indian Supreme Court treated the announcement of the Italian Government that it would not act in accordance with the affidavit as a breach of an undertaking given to the Court by the Italian Ambassador giving rise to sanctions for contempt of court.

The paper sets out the facts of the incident by way of a detailed diplomatic case study and examines whether the submission of an affidavit by diplomatic agents precludes them from invoking immunity from jurisdiction in respect of contempt proceedings connected with the affidavit and whether submission of an affidavit amounts to a valid waiver of diplomatic immunity. It shows that diplomatic immunity constitutes an absolute shield against contempt proceedings.

The paper also probes the legality of the Indian Supreme Court’s restraining order and concludes that, while the action of the Italian Government showed wanton disregard for the authority of India’s highest court, this did not give the Indian Supreme Court or the Indian Government any right to prohibit the Italian Ambassador from leaving the country. The only remedy available in case of contempt of court is for the Indian Government to declare the diplomatic agent persona non grata.