Like Santa Claus, our PM is ready to give away an astonishing Rs 56,000 crore worth of taxpayers’ money to bail out Athens, Barcelona and Rome. But his government isn’t even on speaking terms with Italy, the principal likely beneficiary! Is Singh’s pledge a delusion, because legal briefs dug out here are available with the entire diplomatic community? Their import: the real Santa can’t get get two marines off his back.

Surely, there’s no one in charge of our purse strings. Why else would the prime minister and his mandarins go to town over a lush $10 billion bailout for the Greeks, the Spaniards and, most important of the three ailing candidates, the Italians?

It isn’t my case at all that Manmohan Singh sits on the international high table and excuses himself to the wash just when it is time to split the bill.
My exasperation is with his left and right arms not knowing what the other one is doing. Which forces a detailed politico-legal argument below that the resultant diplomatic capital of pledging Rs 56,000 crore is terrible waste!

Before proceeding, let me take on board that China on Monday offered four times of what we did: $43 billion to the IMF's crisis-fighting reserves, rounding off a global push to nearly double the Fund's war chest to $456 billion to help protect countries from fallout from the euro zone debt crisis.

Also, as IMF managing director Christine Lagarde pointed out, “They (dollars from the taxes you and I paid) will be drawn only if they are needed as a second line of defense,” when other IMF loans have been depleted.

Granted also that Singh couldn’t have sat on the global high table and ignored what other BRICS nations – Brazil, Russia, and South Africa – were doing. Brazil and Russia each pledged $10 billion, while South Africa offered $2 billion. Even G20 host Mexico contributed $10 billion.
But while China has described money loaned to the IMF as an investment and “a useful foreign reserve management tool in terms of safety, liquidity and yield”, remember, we have a depleting reserve.

Why Rome is livid over law

For Eurozone dummies, there is near consensus that it is the Italian bailout that will break the back of the IMF’s ability to fund the adventure.
For its size and problems, on the day of reckoning, Italy will be the most important likely beneficiary of our Monday largesse!

But then Italy is also the country with whom Singh is engaged in a diplomatic war. So, what the PM has done is to pledge your money and mine for a country which is barely at speaking terms with his government.

In fact, Italy is so pissed off that it hardly needs provocation to expose the meek underbelly of the Indian state!

Rome’s Eurozone listeners, including of course, those in Athens and Barcelona, are hearing these specifics:

* On February 15 the two Italian marines admittedly shot dead two Indian fishermen 20.5 nautical miles off the Kerala coast. International law neither supports Kerala’s assertion of jurisdiction nor New Delhi’s preference to stand by as a helpless referee. So far, the Italians have committed a battery of diplomatic and military leaders to protect its soldiers. While the state judiciary playing ball with local political sentiment, the supreme court has had to enter into a domain that should have been in the national executive’s domain.
 
* Two questions have been asked. First, did the Italian marines in question the act with authority, if so, whose? Second, even if they did, in whose territory does the enforcement of the allegation that they used excessive force lie: Is it the Indian Penal Code (IPC), whose writ extends to the entire territory of India, or is it an international regime that India ratified and accepts even while criticising others for their lack of respect for adherence to international laws of the seas?
 
* The Italian position on authority emanates from an Act of parliament of Italy, Law Decree no. 107 dated 12.7.007 converted into Law No. 130 on 2.8.2011. This was enacted pursuant to the commitment of Italy to fight the menace of piracy under United Nations Convention on the Law of the Sea (UNCLOS), flowing from commitments established by the UN Security Council in several resolutions starting from Resolution 1816. Thus, under the Italian Act of parliament, the presence of a military navy detachment even on private vessels flying the Italian Flag. These weren’t trigger-happy ex-servicemen, but active marines on military duty as law enforcement officers for floating territory of the Republic of Italy.
 
* The second issue is whether Kerala police and courts are right in asserting the jurisdiction of the Union of India (UOI) and hauling serving defence personnel of a foreign military through a civilian process to a local jail. Settled principles of public international law, and a reading of the agreement between India and Italy, operational since 3.2.2003, shows that both have commitment to the UN Charter; and they have desired to enhance co-operation between their ministries of defence; [were] convinced that bilateral defence co-operation will contribute to better understanding of security concerns and [will] consolidate respective defence capabilities.
 
* In Article 8 of the bilateral pact, the ‘Sending Country’ alone has jurisdiction over the alleged violations which, supposedly, resulted from the acts, even if these were committed intentionally or out of negligence in the performance of their service as defence personnel. The terms and the spirit of the agreement between India (the host country) and Italy (the sending country) leave the state of Kerala, seeking to rewrite commitments between two sovereign nations.
 
* Just so that this is rubbed in, Rome’s documents in the courts point that the Indo-Italian has been ratified by the Italian parliament (Law n. 15) and notified on 29.02.2008. India too has notified its ratification on 16.04.2009 and the agreement has entered into force on 26.05.2009. .

* On Kerala’s assertion of territory, in the FIR and remand report filed by the circle inspector of police and the report of the Coast Guard, it has been recorded, that the incident took place outside the territory of India. After various iterations, the Coast Guard confirmed that the incident took place at 20.5 nautical miles away from the Indian coast. Our territorial jurisdiction extends to the extent of 12 nautical miles from the nearest point of the baseline; beyond territorial waters is the Contiguous Zone extending up to 24 nautical miles; and beyond that up to 200 nautical miles is the Exclusive Economic Zone of India.

* Additional solicitor-general Harin Raval confirmed in the open court that Kerala, as well as New Delhi, indeed, do not have jurisdiction. When Kerala protested, Raval was removed from the case next day!
 
* Jurisdiction of criminal courts in India is governed by the provisions of the Criminal Procedure Code as well as the IPC, which defines the territory of India. Even assuming that the territory of India extends to the Territorial Waters under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, such Territorial Waters extend only up to a distance of 12 nautical miles from our baseline. This position is also reflected to in the UNCLOS – to which both India and Italy are signatories. Article 3 provides:

“Breadth of the territorial sea - Each State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.” 

* The IPC has to be read with our international obligations in UNCLOS. Article 97 read with Article 58 (2) confirms that courts in Italy have the sole and exclusive jurisdiction in the matter:

“Penal jurisdiction in matters of collision or any other incident of Navigation (1) In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. (2) In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or license shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. (3) No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.”

Doddering parent?

While they listen to Singh’s $10-billion pledge, leaders doing business with him are aware that irrespective of what he wants, a state in his country is all set to try in a civilian court two serving military men for actions they took in defence of their territories (floating).
 
Helpless Indian diplomats told me that the shoe could be on the other foot, once Indian forces accompany our ships, in say, the South China Sea! They shudder at the prospect of a serving soldier being tried in an Indian court (the bilateral pact gives an Italian soldier similar status to an Indian one), ignoring Section 104 of our Army Act which enshrines that such an accused must be given over to military custody and can’t be subjected to the jurisdiction of civil courts.
 
Diplomatic respect flows from your barrel of dollars. But before behaving like a clone of the Chinese Santa Claus, Singh must show control over a blood-thirsty mob. Or he should tell Rome to go to hell.

Failure would mean losing our hard-earned money over guys who are seething with anger. Ruptured control, made into a habit, isn’t the recipe for respect at the IMF either.