Vienna Convention of Diplomatic Relations (VCDR), 1961
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About the Convention
Introduction
- VCDR of 1961 is an international treaty that defines the framework for diplomatic relations between independent countries. It specified the privileges of a diplomatic mission that enable diplomats to perform their functions without fear of coercion or harassment by the host country.
- It forms the legal basis of diplomatic immunity. Its articles are considered cornerstone of modern international relations.
History
- The first attempt to codify diplomatic immunity into diplomatic law occurred in Congress of Vienna in 1815.
- The present treaty on the treatment of diplomats was the outcome of a draft by International Law Commission. The treaty was adopted on 18 April 1961, by the United Nations Conference on Diplomatic Intercourse and Immunities held in Vienna, Austria and first implemented in April
1964.- The same conference also adopted the Optional protocol concerning the acquisition of Nationality, the Optional Protocol Concerning the Compulsory settlement of Disputes, the Final Act and four resolutions annexed to the act.
Key Provisions of VCDR
- Persona Non Grata: 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 9)
- Inviolable Premise: The premises of a diplomatic mission, such as an embassy, are inviolable 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 22)
- Article 30 extends this provision to the private residence of the diplomats.
- Archives and document inviolable: Article 24 establishes that the archives and documents of a diplomatic mission are inviolable. The receiving country shall not seize or open such documents.
- Free Communication: 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 27. )
- Diplomatic Immunities: 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.(Article 29)
- Under Article 34, they are exempt from most taxes, and under Article 36 they are exempt from most customs duties.
- Actions not covered by diplomatic immunity: Actions not covered by diplomatic immunity: professional activity outside diplomat’s official functions. (Article 31.1c)
- Extension of protection to family members: The family members of diplomats that are living in the host country enjoy most of the same protections as the diplomats themselves. (Article 37)
Optional Protocols
- In the same year that the protocol was adopted, two amendment protocols were added. Countries may ratify the treaty without necessarily ratifying the optional protocol.
1. Concerning Acquisition of Nationality : The head of the mission, the staff of the mission, and their families, shall not acquire the nationality of the receiving country.
2. Concerning compulsory settlement of dispute : Dispute arising from the interpretation of this treaty may be bought before the ICJ.
Membership
- As of Nov, 2023, it has been ratified by 193 countries
India-Canada Rift on Diplomatic Row
India Sought Parity in number of diplomats:
- India asked Canada to downsize its diplomatic staff in India. India has 20 diplomats in Canada and sought a similar number of Canadian diplomat in India.
- India’s move followed the Canadian PM Justin Trudeau’s remarks in Canadian Parliament in Sep 2023 who claimed a potential Indian link to the Killing of pro-Khalistan separatist leader Hardeep Singh Nijjar in Canada earlier this year. India has rejected this claim and have called it “absurd” and “motivated”.
In Oct 2023, Canada announced recalling of 41 diplomats and their families. It was done as the diplomats were in danger getting their immunity stripped on an arbitrary date.
- Canadian foreign minister has said that the “unilateral revocation of the diplomatic privilege and immunity is contrary to international law” and is violation of the Vienna Convention on Diplomatic Relations.
- US and UK backed Canada, stating that Diplomats are required to be on the ground to resolve differences. Notably, the two countries are also part of the Five Eyes Intelligence-sharing alliance with Canada, which also include Australia and New Zealand.
What did India say?
- Official statement of MEA has clarified that India hasn’t violated any international legal principle. It has adhered to Article 11.1 of the VCDR based on two-pronged reasons.
i. Firstly, Canada has massive number of Diplomatic staff in India as compared to its counterpart
ii. Secondly, Canadian personnel have been continuously interfering in India’s internal affairs. - Article 11 says that 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
Has this demand for parity occurred in the past?
- Around 2017, Russia and USA also asked for each other’s diplomats to be recalled over the principle of parity and reduced the presence of their missions.
Conclusion:
- It is thus clear that the recall of Canadian diplomats is in now way violation of the international law. Even in the scenario where recall seems to be unreasonable, it could still be justified as a valid countermeasure by India in response to security interference by Canadian diplomats and safety issues of Indian diplomats.