Our laws, their laws

My guess was that Italy being a European country, the memories of colonialism came into play with any such violent incident where Indian lives had been lost. It had nothing to do, I assured her, with Sonia Gandhi's Italian background as this issue had not come up in India at all. In this matter, it would help immensely if the Catholic Church kept completely out of this dispute which is not about religion. The fact that the Vatican is in Italy is irrelevant.

As far as India is concerned, the issue is straightforward. Two Kerala fishermen have been killed by Italian naval personnel—Massimiliano Latorre and Salvatore Girone—who were guarding Enrica Lexie. The fact that the fishermen could have been mistaken for pirates, adds insult to the injury. It may be that the location was technically outside the limits as defined by UN Convention of the Law of the Sea but it was close enough. What is more, it was an Indian ship, and, by Indian law, that is Indian territory.

Italians are relying on international law and arguing that as the incident was at high seas, the Italian law should apply since international law says so. They want their soldiers to be tried in Italian court.

Whose law should prevail? Ours, theirs or the international law?

Few Indians doubt what their answer would be. The case would have been even stronger had the incident taken place within the limits as defined by UNCLOS (United Nations Convention on the Law of the Sea).

But then there is the case of the children of Sagarika and Anurup Bhattacharya who have been taken into care in Norway and their law dictates that the children be kept there until they are adults. Indians are outraged, of course, and feel that the Norwegians are being stupid, ignorant of our culture and insensitive. Yet it is Norway's territory and its law which is being applied.

The background here is that across Scandinavia, there has been a strong welfare state which takes a very active role in family relations. This has been developing for the last seventy years or so. Gunnar Myrdal, the well known economist and his wife Alva Myrdal, would be familiar names to Indians of a certain vintage. They were leading thinkers of the welfare state philosophy which said that you have to apply the most recent research in psychology and child health to make sure that families bring up children properly. If they fail to do so, the State must take over. There is no choice for Norwegian families in this matter. The State knows best.

It is not a doctrine which has much support in Anglo-Saxon welfare states nor in the rest of Europe but that is very much the Scandinavian way. It is difficult from a distance to know what evidence the authorities had to conclude that the children were alienated or neglected. It is unlikely to have been arbitrary. There is now some familiarity with other cultures in Scandinavian countries though not as much as in UK, France or Germany.

The UN Rights of the Child is not clear on this issue. It urges countries both to respect the rights of the child against abuse (most often from within the family) as well as respect for cultural differences and identity. As in the Italian case, so in this one, domestic law and international law conflict. My experience as a non-lawyer is that international law is most often hopelessly vague and difficult if you want an unambiguous conclusion. I found this when we were discussing the Iraq War in 2003.

But the two disputes do pose a paradox in justice. If we apply domestic law, the Italian naval personnel are to be tried in a Kerala court. But then are the children of the Bhattacharyas legitimately held by the Norwegian welfare agencies?

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