Dangerous spiral

Dangerous spiral

Context

New Delhi and Islamabad must address the tit-for-tat harassment of each other’s envoys

Trigger

The trigger for this round of ‘tit-for-tat’ actions appears to be an incident in February, when alleged ISI agents roughed up Pakistani construction workers headed for the Indian mission’s new building site in Islamabad

• Pakistan’s response: While Pakistan’s foreign office claimed they did not have security clearance to enter the diplomatic zone
• Indian stand:India saw it as an attempt to stop the work, adding that power and water connections were tampered with

Now, tit for tat activities go on with harassment of envoys in both the countries

Author’s contention

Author holds the view that such actions are just a front to give intelligence agencies a freehand to do whatever they want against each other

Violations of international treaties

Allegations of harassment constitute technical violations of the Vienna Convention on Diplomatic Relations (1961) and the subsequent Vienna Convention on Consular Relations (1963), which clearly state that a diplomatic agent’s person, premises and property are inviolable and must be respected and protected by the “receiving state”

Vienna Convention on Diplomatic relations 1961

• The Vienna Convention provides a complete framework for the establishment, maintenance and termination of diplomatic relations on a basis of consent between independent sovereign States. It specifies the functions of diplomatic missions, the formal rules regulating appointments of a diplomat. It sets out the special rules – privileges and immunities – which enable diplomatic missions to act without fear of coercion or harassment through enforcement of local laws and to communicate securely with their sending Governments.

The salient features of the convention are:

• Article 9: The host nation at any time and for any reason can declare a particular member of the diplomatic staff to be “persona non grata”. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their diplomatic immunity
• Article 22: The premises of a diplomatic mission, such as an embassy, are inviolate and must not be entered by the host country except by permission of the head of the mission. Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property. Article 30 extends this provision to the private residence of the diplomats
• Article 27: The host country must permit and protect free communication between the diplomats of the mission and their home country. A diplomatic bag must never be opened even on suspicion of abuse. A diplomatic courier must never be arrested or detained
• Article 29: Diplomats must not be liable to any form of arrest or detention. They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32: Under Article 34, they are exempt from most taxes, and under Article 36 they are exempt from most customs duties
• Article 31 1c: Actions not covered by diplomatic immunity: professional activity outside diplomat’s official functions
• Article 37: The family members of a diplomat that are living in the host country enjoy most of the same protections as the diplomats themselves
• Article 38 bars from all privileges and immunities, except for immunity for their official acts, nationals and permanent residents of the receiving State

Vienna Convention on Consular Relations (1963)

The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a framework for consular relations between independent countries. The Vienna Convention consists of 79 articles, most of which provide for the operation of consulates; outline the functions of consular agents; and address the privileges and immunities granted to consular officials when posted to a foreign country. A few other articles specify consular officials’ duties when citizens of their country face difficulties in a foreign nation

Some of the salient features are,

• Article 5: Thirteen functions of a consul are listed, including protecting in the receiving state the interests of the sending state and its nationals, as well as developing the commercial, economic, cultural, and scientific relations between the two countries.
• Article 23: The host nation may at any time and for any reason declare a particular member of the consular staff to be “persona non grata”. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their consular immunity
• Article 26 says that the receiving state must ensure to all members of the mission freedom of movement and travel in its territory
• Article 27.4 says that the diplomatic bags may contain only diplomatic documents or articles intended for official use. But diplomatic bags cannot be controlled because they cannot be opened. Also personal bags of diplomatic agent are exempt from inspection unless there are serious grounds for presuming that it contains goods that are forbidden in the host country
• Article 28: The fees and charges levied by the mission in the course of its official duties shall be exempt from all dues and taxes
• Article 31: The host nation may not enter the consular premises, and must protect the premises from intrusion or damage.
• Article 35: Freedom of communication between the consul and their home country must be preserved. A consular bag must never be opened. A consular courier must never be detained.
• Article 36: Foreign nationals who are arrested or detained be given notice “without delay” of their right to have their embassy or consulate notified of that arrest. If the detained foreign national so requests, the police must fax that notice to the embassy or consulate, which can then check up on the person. The notice to the consulate can be as simple as a fax, giving the person’s name, the place of arrest, and, if possible, something about the reason for the arrest or detention

Retaliatory measures

The fear is that India and Pakistan may even take stronger measures, including sending back diplomats or scaling down their missions

• India had declared Islamabad a non-family post in the wake of the terror attack on an army school in Peshawar; Pakistan may now follow suit by withdrawing its families from Delhi

Conclusion

Author concludes by stating that at a time when bilateral dialogue has been stalled for years, and ceasefire violations are becoming the norm on the Line of Control, any escalation will impact the few lines of communication that remain. A wise sense of judgment must prevail