Authored by Vedant N. Wadshingkar, III Year Student at Government Law College, Mumbai
Introduction
It is a sad state of affairs that almost every region of the world is affected by conflict, either latent or proactive. In such a precarious situation, to the surprise of many, the India-Canada diplomatic row is back on the anvil again with higher gusto. Though the likelihood of diplomatic severance is low, bars exchanged from both sides cannot be dismissed as mere bilateral low, considering the democratic credentials of both states. As the imputations hurled inadvertently involve the key notions of diplomatic law, this blog endeavours to assess the efficacy of these tenets vis-a-vis India-Canada Diplomatic Row.
Factual Underpinnings
The ruckus surrounding the India-Canada diplomatic row is not entirely new in international geopolitics. The present altercation merely represents a continuum of the events that transpired in the year 2023 when Canada publicly arraigned India for the murder of Hardeep Singh Nijjar. Surprisingly, the Indian government’s response was scathing at best & belligerent at worst. Fortunately, time did the wonders & altercations slowly dissolved into thin air. Interestingly, after a year-long thaw in the relations, controversy resurfaced again when Canada expelled 6 Indian diplomats for being accomplices in the sinister plot of Nijjar’s murder. The Indian government was agile enough to register its protest in stern language. Not only did India deny the allegations, but it also expelled 6 diplomats of Canada.
Foreign Interference Commission & RCMP
The alarming rate at which democratic regimes worldwide have been shoved to the precipice has awakened them from their complacency to draw a fine line between foreign influence and foreign interference. This awakening resulted in the constitution of the Foreign Interference Commission in Canada, whose report triggered a ripple effect phenomenon.
The initial report of this Commission, which was made public in May 2024, speaks volumes about how Canada sees Indian actions in relation to its largest South Asian community. Not only did this report accentuate India’s bellicosity towards legitimate and illegitimate pro-Khalistani political advocacy, but it also alluded to the involvement of Indian officials and their reliance on proxy agents.
Thus, it isn’t surprising that the recent RCMP statement more or less mimics the tone of the Interference Commission. While the language of the report indirectly takes a dig at Indian officials, the RCMP statement is explicit enough to indict Indian diplomats and consular officials. While the veracity of these accusations is indeed a grey spot, reference to diplomatic and consular officials, drags the doctrine of personal inviolability into the fray, which warrants closer inspection.
Personal Inviolability
This construct of personal inviolability is undoubtedly one of the oldest tenets in diplomatic jurisprudence. Satow defined this tenet as an elevated level of immunity accorded to a diplomat due to his function & also posited that the receiving Government has to take all necessary precautions to safeguard the inviolability of accredited diplomats.[1]
From Article 14 of the 1928 Havana Convention of Diplomatic Offices to Article 29 to the 1961 Vienna Convention on Diplomatic Relations (“VCDR”) almost every other celebrated document in the annals of diplomatic jurisprudence has embodied the principle of personal inviolability. The rationale for the inculcation of this cardinal principle within the ambit of these documents was to provide an impetus to the functionalist view of diplomatic immunity. However, states today are grappling with the enigma of how to deal with this inviolable aspect of diplomatic immunity when its misuse crosses all the thresholds of reasonability. On one hand, ICJ reports on the US diplomatic & consular staff in Tehran accentuate the relevance of personal inviolability, wherein this principle was violated by militant students who intruded American embassy and held diplomats hostage. On the other hand, the ordeal of Jane Doe epitomizes how accused like Manuel Ayre can evade the due process of law, even after the commission of heinous sexual offences solely because of the personal inviolability bestowed upon the diplomatic agent & his family.[2] From Ahmed v. Hoque[3] to Tabion v. Mufti, there is no paucity of cases wherein this tenet impeded justice, by letting the accused go scot-free. This equivocality that engulfed personal inviolability boils down to the one question: is the doctrine of inviolability so absolute that limitations can’t be imposed, even after the blatant abuse?
Self Defence: An Exception To Absoluteness?
Irrespective of the tacit acknowledgement of the absolute nature of personal inviolability, dissenting voices from some quarters can’t be suppressed. Section of academia has long rejected this absoluteness of doctrine by duly acknowledging the right of self-defence, either in the form of arrest or judicial proceedings if there exists an immediate threat from the diplomats.[4] Interestingly, ILC commentaries on diplomatic privileges also did not rule out the scope of self-defence or any exceptional circumstances where this inviolability can be stripped to deter diplomats from wrongdoings. However, ILC’s consideration in this regard is heavily tilted in favour of self-defence as a measure of immediate reaction & not as a basis for trial & punishment. Though the theoretical application of this doctrine to the India-Canada row effectively translates into the plausible invocation of this doctrine by Canada, its practical application is fraught with challenges, which will be difficult to surmount. Because of the inchoateness of doctrine in international jurisprudence, states have seldom used this theory as a justification for confining the abuse of inviolability. As the historical trajectory of this doctrine follows nonlinear curvature, even in the Paris incident of 1978, the French government did not mention the doctrine of self-defence in its justification.[5] Principles of proportionality, necessity, and immediacy engendered from the Caroline Doctrine also limit the free run that this principle might enjoy.[6] Thus, these guardrails by & large exist in theory only as the practical aspect is limited by not only its inherent limitations but also by another tenet of diplomatic jurisprudence- Reciprocity.
Reciprocity: Limiting Factor
The construct of Reciprocal action is one of the reasons why states extend diplomatic immunity to the diplomats of another state. This construct rules out the possible standoff that may arise in diplomatic relations due to the unruly behaviour of any state. As every state plays 2 pronged roles – one that of sending one & another that of receiving, the principle of reciprocity coupled with common interest thus guarantees that states acquiesce to the ethos of diplomatic law.
Any kind of interference in the domain of personal violation carries repercussions, irrespective of whether such intrusion was justified or not. Any unilateral action not only disrupts the status quo between the parties but may also drastically alter its stance on critical issues as is evident in this case wherein the Indian government has signalled that it may put the military deal on the back burner. As there exists a legal relationbetween sending & receiving states, we cannot rule out the possibility of vindictive quid pro quo tactics by the states. Thus, the doctrine of reciprocity inadvertently ensures the absoluteness of personal inviolability by effectively limiting the scope of self-defence.
Foray of Diplomatic Immunity
The October 14th press release by the Canadian Ministry of External Affairs which reignited the dispute again is uniqueon multiple accounts. Though, the press release largely hinged upon the RCMP’s statement, fleeting mention of diplomatic immunity & its nexus with sovereignty shouldn’t be ignored.
Diplomatic Immunity: Necessary Evil?
Diplomatic immunity simply means the protection enjoyed by the diplomats in a receiving state while representing the sending state.[7] Wilson identified this immunity which shields diplomatic missions from legal process. This shield-centred definition to a larger extent moulded from rudimentary constructs of diplomatic jurisprudence. However, the bifurcation of immunity into functional immunity (immunity rationale materie) & personal immunity (immunity rationale personae)on structural planes accentuates that diplomatic immunity,[8] though an extension of basic tenets is not a replica of personal inviolability. While personal inviolability denotes the physical aspect, diplomatic immunity is a unique blend of legal framework.[9]
Theory Of Functional Necessity
The odyssey of diplomatic immunity from the draft convention of 1932 by Harward Research in International Law to the VCDR marks a significant shift towards certain minimum diplomatic immunity, which is one of the hallmarks of the functionalist perspective. This departure from the construct of personal representation as well as extraterritoriality,[10] however, doesn’t turn them entirely irrelevant. Even though the preamble of VCDR scintillates the functionalist perspective, Moutuzouris contends that such solitary expression of immunity is incomplete without due recourse to other constructs. This implies that express espousal of any construct with clear-cut demarcation doesn’t adequately represent diplomatic immunity.
However, the application of these constructs to the present scenario hardly alters the diplomatic landscape. As the theory of personal representation considers the diplomat the alter ego of the ruler/ state, even if it is applied in a diluted manner, nonetheless retains some degree of absoluteness, which results in exonerating the diplomat for grave offences.[11] Interestingly, even the application of functionalist doctrine as enshrined under the preamble of VDCR isn’t amply reflected through the provisions. Hence, in the present case, the application of any of the constructs doesn’t fructify into any laxity in absolute diplomatic immunity, which would enable the prosecution of erred diplomats.
Limits On Diplomatic Immunity
Diplomatic waiver, the principle of persona non grata & jurisdiction of the sending state are some of the avenues, which states can explore to curb the abuse of diplomatic immunity. Accordingly, Article 32 of VDCR provides a glimmer of hope, as it enlists provisions pertaining to the waiver of diplomatic immunity. However, the said provision is directory in nature & not mandatory. Not only does the article give discretion to the sending state in such matters but also makes sure that such waiver is express. As the waiver from the civil or administrative jurisdiction doesn’t translate into waiver from the execution of judgment, the underlying spirit of Article 32 is largely limited by the literal text. Thus, in the present case, the Indian government’s refusal to waive immunity can render this mechanism inoperable.
The rich historical tapestry surrounding the principle of persona non grata, however, is not entirely unequivocal. 2 historical events in the 16th century epitomize the intrinsic ambiguity in this matter. In the year 1584, Spanish ambassador Mendoza was expelled due to the suspicion of conspiracy. In contrast, the request for the recall of Ambassador Aubespine in the year 1587 did not receive the nod of French authorities and he continued to serve as an ambassador to Queen Elizabeth. Nonetheless, this ambiguity is reduced by margins with the advent of VCDR, as the receiving state can seek recourse of Article 9, by which any diplomatic person can be declared as persona non grata. Once declared, the receiving state must recall such an individual.[12] This aspect also drags the jurisdiction of the sending state into the fray as the diplomatic immunity doesn’t in any way shield the diplomat from the jurisdiction of the sending state.[13] Though relatively more effective than Article 32, there is hardly any assurance such a person will be subjected to the rule of law. As evident in this case, the Indian government has refused all the averments, not a single mechanism is effective to contain the unruly diplomatic behaviour.
Conclusion
It isn’t astounding at all to see the sparse amount of attention diplomatic jurisprudence has garnered out of all the controversies that the India-Canada diplomatic row raked up. Whether it is the theory of personal inviolability or the doctrine of diplomatic immunity, it is the absoluteness that is problematic & not the construct itself. Sweeping generalisations about the inefficacy of the resolution mechanism cannot be drawn as what’s sauce for the goose isn’t sauce for the gander.
Thus, if the sole objective in this case, is to punish the erring diplomats and to further the ends of justice, then undoubtedly, absoluteness might turn out to be the Canada’s biggest arch-rival. However, this absoluteness bestowed on these constructs is somehow essential, as this ‘necessary evil’ maintains the equilibrium of global diplomatic dynamics. The moment we get rid of the inherent absoluteness of these constructs, the floodgates of vexatious actions will be wide open, thereby affecting global diplomatic equilibrium.
The available dispute-resolution mechanisms are grossly inadequate in the present case for a plethora of reasons. Primarily, the exercise of waiver of diplomatic immunity has been more of an exception than the rule primarily because of the unpredictable nature of power dynamics. The waiver of diplomatic immunity in the case of Gueorgui Makharadze by the Georgian Authorities presents a sobering reality of how power dynamics can influence the outcome either affirmatively or negatively. In the captioned case, waiver of diplomatic immunity occurred more under the compulsion of power dynamics and less because of moral gesture. The possibility of such a moral gesture in the present case is bleak primarily because of 2 reasons, first the power dynamics, in the present case are more or less balanced, & second, the allegations are not substantiated.
No doubt the influx of new ideas ranging from international diplomatic courts to the amendments in conventions and from compensation funds to mandatory insurance, holds promise for the future, however, their feasibility remains untested.[14] As these measures will take time to materialise, they require the sheer collective will of the international community, which is conspicuously absent in today’s era. Therefore, these solutions, though promising, lack merit in the current dispute, at least in the short term.
If the doctrine of functional necessity is all that we aspire for, then it is essential to carry it to its logical end as is evident in the 1946 Convention on the Privileges & Immunities of the UN. Section 18(a) of this convention only grants immunity for the actions performed in the official capacity.
The India-Canada dispute will eventually dissipate into oblivion, only to be superseded by a new controversy. However, only time will tell whether the international community, taking a cue from this incident, will uphold the spirit of the Vienna Convention on Diplomatic Relations in letter and spirit, or whether the abuse of diplomatic immunity will continue with impunity.
[1] Satow E., Satow’s Guide to Diplomatic Practice 13 (Lord Gore-Booth ed., Longman 5th ed. 1979).
[2] Ashman C. & Trescott P., Diplomatic Crime: Drugs, Killings, Theft, Rapes & other Outrageous Crimes! 22 (Acropolis Books Ltd. 1987).
[3] Ahmed v. Hoque, No: 01 CIV. 7224 (DLC) (S.D.N.Y. Aug. 23, 2002).
[4] C.J. Lewis, State & Diplomatic Immunity 135 (3rd ed. Lloyds of London 1990).
[5]. C. Rousseau, Droit International Public Vol. IV 202 (Paris-Sirey 1980).
[6] D.J. Harris, Cases & Materials on International Law 894-896 (6th ed. Sweet & Maxwell 1998).
[7] Grant V. Mcclanahan, Diplomatic Immunity: Principles, Practices, Problems 1 (C Hurst & Co. 1989).
[8] R. Cryer, An Introduction to International Criminal Law & Procedure 422 (Cambridge Univ. Press 2007).
[9] I. Brownlie, Principles of Public International Law 358 (5th ed. Oxford Univ. Press 1998).
[10] C. Wilson, Diplomatic Privileges & Immunities 3-4 (Arizona Univ.Press 1967).
[11] G. Schwarzenberger & E. Brown, A Manual of International Law 79 (6th ed. Professional Books 1976).
[12] Amer Fakhoury, ‘Persona Non Grata: The Obligation of Diplomat to respect the Laws & Regulations of the Host State’ 57 Journal of Law, Policy & Globalisation (2017).
[13] F. L. Shirin, ‘Insuring against Abuse of Diplomatic Immunity’ 38(6) Stanford Law Review 1517–47 (1986).
[14] J.D. Groff, ‘A proposal for Diplomatic Accountability using the Jurisdiction of the International Criminal Court: The Decline of an Absolute Sovereign Right’ 14 Temple Int’l & Comparative Law Journal (2000).
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