Source: The Hindu 

Introduction 

In a sudden escalation of diplomatic tensions, India and Canada have taken dramatic steps against each other's diplomatic missions. India has withdrawn its top diplomat from Canada and expelled six Canadian diplomats, while Canada has reportedly expelled Indian diplomats as well. This comes after Canada accused Indian agents of involvement in the killing of a Sikh separatist leader on Canadian soil last year - allegations India firmly denies. 

What are the Implications of the Recent Diplomatic Tensions Between Canada and India? 

• Canada's allegations:  
  • The Canadian government has accused "agents of the Indian government" of being involved in the June 2023 killing of a pro-Khalistan figure, in British Columbia.  
  • Canada has declared six Indian officials as "persons of interest" in this investigation. 
• India's rejection:  
  • India strongly rejects these accusations, calling them "preposterous imputations" and attributing them to domestic political motivations of the Trudeau government. 
• Diplomatic expulsions:  
  • Both countries have taken severe diplomatic actions, with India withdrawing its High Commissioner and expelling six Canadian diplomats, while Canada has reportedly expelled Indian diplomats as well. 
• Safety concerns:  
  • India claims that the actions of the Canadian government have "endangered" the safety of Indian diplomats in Canada. 
• Accusations of harboring extremists: 
  • India accuses Canada of providing space to "violent extremists and terrorists" who have allegedly harassed Indian diplomats and community leaders in Canada. 
• Extradition issues:  
  • India alleges that Canada has disregarded India's extradition requests for individuals India considers to be terrorists residing in Canada. 

What is Embassy? 

• Embassies operate under the Vienna Convention on Diplomatic Relations of 1961, which codifies international law on diplomatic relations. 
• Diplomatic agents enjoy immunity from arrest, detention, and civil and criminal jurisdiction of the host country. This is a fundamental principle of international law. 
• The premises of diplomatic missions are inviolable.  
  • Host country authorities may not enter them without permission from the head of the mission. 
• Diplomatic agents are exempt from all dues and taxes, personal or real, national, regional, or municipal in the host country. 
• Embassies have the right to communicate freely for official purposes, including the use of diplomatic couriers and diplomatic bags. 
•  The host country has a special duty to protect diplomatic missions against intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 
• Embassies have the legal right to perform consular functions, including issuing visas and passports, as outlined in the Vienna Convention on Consular Relations of 1963. 
• Embassies have the legal authority to represent their sending state before the host state, including in legal proceedings. 
• Diplomatic agents have a legal obligation not to interfere in the internal affairs of the host state. 

Vienna Convention on Diplomatic Relations of 1961 

• About: 
  • The Vienna Convention on Diplomatic Relations was adopted on 18th April, 1961, in Vienna, Austria, and entered into force on 24th April, 1964. 
  • The Convention codifies and clarifies the rules and customs of diplomatic law, providing a comprehensive framework for diplomatic relations between states. 
• Scope of Application:  
  • The Convention applies to diplomatic missions, including embassies and legations, as well as diplomatic agents such as ambassadors, chargés d'affaires, and other accredited representatives of a sending state in a receiving state. 
• Inviolability of Diplomatic Premises:  
  • Article 22 states that the premises of diplomatic missions are inviolable. Agents of the receiving state may not enter them without the consent of the head of mission. 
• Diplomatic Immunity:  
  • Articles 29 and 31 provide that diplomatic agents enjoy personal inviolability and immunity from the criminal jurisdiction of the receiving state. They also have immunity from civil and administrative jurisdiction, with certain exceptions. 
• Freedom of Communication: 
  • Article 27 ensures that diplomatic missions have the right to communicate freely for all official purposes. 
• Tax Exemptions:  
  • Article 34 exempts diplomatic agents from all dues and taxes, personal or real, national, regional, or municipal, with certain specified exceptions. 
• Duty of Diplomats:  
  • Article 41 states that diplomatic agents have a duty to respect the laws and regulations of the receiving state and not to interfere in its internal affairs. 
• Termination of Functions:  
  • Articles 43 and 45 provides the circumstances under which the functions of a diplomatic agent come to an end, including recall, declaration as persona non grata, and severance of diplomatic relations. 

Who are Diplomatic Agents? 

• Diplomatic agents are defined in Article 1(e) of the Vienna Convention on Diplomatic Relations of 1961. 
• The term "diplomatic agent" refers to the head of the mission or a member of the diplomatic staff of the mission. 
• Article 4  
• This includes:  
  • Ambassadors 
  • Envoys 
  • Ministers 
  • Chargés d'affaires 
  • Other diplomatic staff with diplomatic rank 
• Not all embassy or mission staff are considered diplomatic agents.  
• The head of the mission is typically the ambassador or other person accredited by the sending State to act in that capacity. 
• Members of the diplomatic staff are those members of the staff of the mission who have diplomatic rank. 

How diplomatic Agents are Appointed as Per Convention? 

• Article 4(1): The sending State must ensure that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State. 
• Article 4(2): The receiving State is not obliged to give reasons to the sending State for a refusal of agrément. 
• Article 7: The sending State may freely appoint the members of the staff of the mission, subject to Articles 5, 8, 9, and 11. 
• Article 8(1): Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State. 
• Article 8(2): Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time. 

What are the Function and Immunity of Diplomatic Agents ? 

• Functions of Diplomatic Agents 
  • Article 3(1): The functions of a diplomatic mission consist, inter alia, in:  
    • Representing the sending State in the receiving State;  
    • Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;  
    • Negotiating with the Government of the receiving State;  
    • Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;  
    • Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. 
  • Article 3(2): Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission. 
  • Article 41(1): Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. 
  • Article 41(2): All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. 
• Immunity of Diplomatic Agents 
  • Article 29: 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 31(1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:  
    • A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;  
    • An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;  
    • An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 
  • Article 31(2): A diplomatic agent is not obliged to give evidence as a witness. 
  • Article 31(3): No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. 
  • Article 32(1): The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. 
  • Article 32(2): Waiver must always be express. 
  • Article 39(1): Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. 
  • Article 39(2): When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. 

What Happened When Diplomatic Relations Are Broken Off or a Mission is Recalled? 

• Article 45 applies when diplomatic relations are broken off or a mission is permanently or temporarily recalled. 
• The receiving State has an obligation to respect and protect the mission premises, property, and archives, even in case of armed conflict. 
• The sending State has two main options:  
  • Entrust the custody of the mission premises, property, and archives to a third State.  
  • Entrust the protection of its interests and those of its nationals to a third State. 
• Any third State chosen by the sending State must be acceptable to the receiving State. 
• The protection of mission premises, property, and archives continues for as long as the situation persists. 
• The protection covers all mission property and specifically mentions archives, highlighting their importance. 
• The third State entrusted with custody or protection is expected to act as a neutral party. 
• Article 43 states the function of a diplomatic agent comes to an end, inter alia :  
  • on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end; 

Conclusion 

These developments mark a severe deterioration in India-Canada relations, with both sides taking unprecedented action against diplomatic staff. The dispute centers around Canada's allegations of Indian involvement in the murder of a Khalistani activist, which India rejects as "preposterous." With visa services suspended and dozens of diplomats expelled, ties between the two countries have reached a new low. The situation remains tense, with potential for further escalation if a diplomatic resolution is not reached soon.