Opinion In the diplomatic row with Canada, India has done nothing wrong

It is well within its rights to ask Canada to scale down the size of its mission operating on Indian soil

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The real question is whether India has the right to ask Canada, or any country, to cut down the size of its mission operating on Indian soil. (Express File Photo)

Prabhash Ranjan

October 25, 2023 09:44 AM IST First published on: Oct 24, 2023 at 07:00 AM IST

The bilateral relations between India and Canada, already reeling from allegations about the former’s involvement in the killing of a Khalistani extremist Hardeep Singh Nijjar on Canadian soil, have nosedived further. Canada’s latest accusation is that India has unilaterally revoked the diplomatic immunity of Canadian diplomats based in India, thus violating international law. Canada calls this a violation of the Vienna Convention on Diplomatic Relations (VCDR) — an international treaty that provides the framework for the conduct of diplomatic relations between independent countries. VCDR strives to balance the interests and imperatives of receiving states (the host country where a diplomatic mission is based) and sending states (the country that sends the diplomatic mission to another country).

Canada’s charge is very serious, but not borne out by the facts. India did not revoke the immunity of Canadian diplomats. It asked Canada to cut down the size of its mission by taking back several diplomats based on the principle of parity. India’s demand was communicated to Canada through regular diplomatic channels, and Ottawa was given adequate time to perform this task. At the most, it can be argued that had these diplomats continued to stay in India, they would have lost their diplomatic immunities. But this would be a logical outcome of the sending state (Canada) not taking back these diplomats despite the receiving state’s (India) demand. This is different from Canada’s charge that India has revoked diplomatic immunities. India didn’t declare any of these diplomats persona non grata (unacceptable person). However, as the receiving state, India has the right to do so under Article 9 of VCDR without explaining its decision to the sending state (Canada).

The real question is whether India has the right to ask Canada, or any country, to cut down the size of its mission operating on Indian soil. The answer is an unequivocal yes. As the Ministry of External Affairs in its press release has said, India’s action is in accordance with Article 11(1) of the VCDR. This provision regulates the issue of the size of a mission and provides “in the absence of specific agreement as to the size of the mission, the receiving state may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission”.

Thus, this provision gives the receiving state (India) the right to ask the sending state (Canada) to keep the size of its mission within limits that the receiving state considers to be “reasonable and normal”. It is critical to note that the test laid down in Article 11(1) is a subjective, not an objective one. It gives the receiving state the right to unilaterally determine what is “reasonable and normal” considering the domestic circumstances. The negotiating history of the VCDR corroborates this point.

During the negotiations, it was proposed that a receiving state shall have the power to limit the size of the mission “within the bounds of what is reasonable and customary” (an objective test). But countries rejected this and replaced it with the subjective test of what a receiving state “considers reasonable and normal”. As the MEA press release states, India believes that the “much higher number of Canadian diplomats in India, and their continued interference in (India’s) internal affairs” necessitates a parity in the mutual diplomatic presence in both countries. International law gives India the right to make this determination unilaterally and come to the conclusion that it has reached. As Gerald Fitzmaurice, a judge at the International Court of Justice, believed, since the basic principle is that a receiving state must give its consent for any mission to exist on its soil, the logical corollary is that it can also control the size of the mission.

Internationally, there is sufficient state practice to support what India has done. As Eileen Denza, a former legal councillor to the Foreign and Commonwealth Office, UK, wrote in her commentary on VCDR in 1971, the United Kingdom imposed a ceiling on the Soviet Union mission in the UK when it found several Russian diplomats engaged in “inadmissible activities”. The UK cited Article 11 of the VCDR to back its decision. In 1979, the United States used its power to limit the number of Iranian diplomats based in Washington. Earlier this year, Moldova and Estonia asked Russia to downsize its mission based on the principle of parity. Both Moldova and Estonia relied on Article 11 of the VCDR to justify their actions. Moldova alleged the involvement of Russian diplomats in destabilising the internal situation in Moldova. Likewise, Estonia contended that Russian diplomats were actively undermining Estonia’s security.

Apart from Article 11(1), India has other legal options too. Under Article 41(1) of the VCDR, persons enjoying diplomatic privileges and immunities are obliged not to interfere in the internal affairs of the receiving state. Thus, if these Canadian diplomats, as the MEA press release asserts, were interfering in India’s internal affairs, it is a breach of the VCDR by Canada. This can also be grounds to restrict or withdraw diplomatic immunities. In this context, it is also worthwhile to look at the Diplomatic Relations Act of 1972 that India enacted to give effect to the VCDR. Section 4 of this Act empowers the central government to restrict diplomatic privileges and immunities to a country that fails to comply with its obligations under the VCDR.

Given this, India’s actions are consistent with its international law obligations. But the larger picture is a lack of trust between Ottawa and New Delhi today. Both sides need to work towards adopting confidence-building measures. Allegations of breaching international law will only add insult to injury.

The writer teaches at the Faculty of Legal Studies, South Asian University. Views are personal