Opinion: India-Canada Ties - Vienna Convention And Diplomatic Obfuscation

The friction in India-Canada ties continues over the allegations by Prime Minister Justin Trudeau that "agents of the Indian government" were involved in the killing of Khalistan terrorist Hardeep Singh Nijjar in Surrey, British Columbia. The row resurfaced last week with US Secretary of State Antony Blinken saying he raised the issue with his Indian counterpart S Jaishankar in New Delhi while traveling for the 2+2 meeting. Soon, Justin Trudeau not only brought up the matter of investigations into the killing while addressing the press but also the "violation of the Vienna Convention" of Diplomatic Relations.

In the backdrop of the Nijjar case the treatment of diplomats and the modalities of how countries maintain diplomatic ties through their representatives has also come into sharp focus. While it may appear that both sides are addressing the same issue, in fact, New Delhi and Ottawa seem to be raising different points under the same convention.

While India has used the term "parity" in diplomatic presence as the keyword to argue its point, Canada has raised concerns over the "revoking of diplomatic immunity" of its personnel.

First, let us elaborate on India's "retaliation", which Trudeau called the "kicking out" of a "whole bunch of Canadian diplomats". A statement by the Ministry of External Affairs said there was a "much higher number of Canadian diplomats in India", and stressing it warranted "parity in mutual diplomatic presence in New Delhi and Ottawa," New Delhi asked Ottawa to withdraw 41 diplomats from India.

India quoted Article 11.1 of the Vienna Convention on Diplomatic Relations to respond to Canada. It says, "1. 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. 2. The receiving State may equally, within similar bounds and on a non-discriminatory basis, refuse to accept officials of a particular category."

With this, the Ministry of External Affairs concluded that it rejected "any attempt to portray the implementation of parity as a violation of international norms".

However, Canada hasn't really raised the issue of parity of diplomatic presence in its official statements. Rather, it has raised the issue of "revoking of diplomatic immunity" as a violation under Vienna Convention. The number of personnel was cited by some media outlets in Canada off the record but not brought up in official government statements.

Here is what Justin Trudeau said in his statement on November 12 - "India's response is to kick out a whole bunch of Canadian diplomats by violating their rights under the Vienna convention. That is of concern to countries around the world because if a given country just decides that the diplomats of another country are no longer protected that makes international relations more dangerous." He reiterated what Foreign Ministry Melanie Joly said while revealing on October 19 that 41 diplomats had been called back to Canada from India after their diplomatic immunity was revoked. "Diplomatic immunity keeps diplomats safe no matter where they are from and where they are sent to. Immunity allows diplomats to do their work without reprisal in the country they are in. They are the fundamental principles and only work if every country abides by the rules," she had said.

Articles 29-39 broadly deal with the issue of immunity of diplomats to carry out their duties and the associated privilege extended to their families. Article 29 says: "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity." Article 37 adds, "Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties".

Canada had expelled one Indian diplomat after the allegations by PM Trudeau on September 18 and India retaliated by expelling one Canadian diplomat immediately.

Article 9 of the Vienna Convention deals with this situation when it says, "The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State. 2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a member of the mission."

External Affairs Minister S Jaishankar, however, explained that apart from "parity", there were other concerns that spurred the decision to revoke immunity. "In our case, we invoked parity because we had concerns about continuous interference in our affairs by Canadian personnel. We haven't made much of that public. My sense is over a period of time more stuff will come out and people will understand why we had the kind of discomfort with many of them which we did," he said.

While the Trudeau government so far hasn't revealed what evidence it has on the alleged involvement of "Indian government agents" in Nijjar's killing, India too has not made public what it has on the "interference" by "Canadian personnel".

Responses to expulsion are often reciprocal and in equal measure. Expulsions or the recall of diplomats is often a result of a fallout between two nations. The issue can be escalated to the top level of diplomats too, as seen in the case of India and Pakistan. The two countries recalled their high commissioners in 2019 as ties plummeted after the Pulwama terror attack.

It was a case of diplomatic immunity that had pushed India to react sharply to the US in the case of Indian officer Devyani Khobragade in 2013. The arrest of the then Deputy Consul General in New York and her harassment in custody was deplored by India as a clear violation of her diplomatic immunity.

Even as major differences persist between India and Canada over the Khalistan issue, the fact remains that while the two use diplomatic means to convey displeasure, it could lead to further complications and fallouts on both sides. The most significant being on visa-related issues; Canada in its statement on October 19 said, "Unfortunately, this mass expulsion will impact our operations, and client service will be affected. We will now be forced to pause temporarily all in-person services at Consulates, until further notice".

It said India's decision would impact the levels of services to citizens of both countries. "Immigration, Refugees and Citizenship Canada (IRCC) will continue to accept and process applications from India. However, certain application requirements will need to be completed locally or on-site in a secure environment. As a result, the reduction in the size of the IRCC team will affect service standards for residents of India," the statement said.

There is a sizeable population of India-origin people in Canada, with 2,30,000 Indian students in the country.

In the aftermath of Trudeau's allegations, India had also suspended visa services, which were later resumed after approximately a month on October 26. The visa service was resumed for four categories - Entry visa, Business Visa, Medical Visa and Conference Visa.

In a highly interconnected world, diplomatic friction between countries immediately leads to consequences for the people, so a greater understanding of concerns by countries on sensitive issues and the ability of both sides to quietly resolve matters without them becoming political fodder on either side reflects diplomatic maturity.

(Maha Siddiqui is a journalist who has extensively reported on public policy and global affairs.)

Disclaimer: These are the personal opinions of the author.