Unilateral changes by the West are increasingly affecting diplomats from the developing world

The Italian Ambassador’s matter before the Supreme Court is over but problems with the Vienna Convention will not go away. This is because the past three decades have witnessed an increasing effort on the part of western countries to unilaterally introduce changes in the application of the Vienna Convention of Diplomatic Relations to the detriment of diplomats of developing countries. They say that this aggressive approach is in keeping with new standards of humanitarian and labour laws. However, its selective, self-serving and at times unscrupulous application belies these tall claims. These countries are also taking care to ensure that the functioning or personal situations of diplomats working in their embassies are not impaired while considerable difficulties are experienced by those of developing countries.

Some years ago the domestic help who had accompanied a senior Indian diplomat to his post in a Western country sued him for maltreatment in a local court. Along with the diplomat, the Indian government was also sued. The country concerned took the position that its courts had jurisdiction as it was a civil law matter.

As the case was going on, authentic documentary evidence emerged that established the involvement of the officials of the host country in a virtual conspiracy to instigate the domestic help to leave his employer. They had also created circumstances that had enabled him to take legal action. Under sustained pressure from South Block, the country cleared up the matter within its own system, including its courts, but requested the Indian authorities that the issue be kept confidential. That request was accepted for diplomats prefer to deal with all matters relating to privileges, immunities and protocol discreetly, outside the public gaze. They especially try to avoid entanglements with the courts. That is one reason why the Italian Ambassador’s affidavit to the Supreme Court was, per se, so extraordinary.

Safety net

The Convention codifies traditional immunities and privileges given to diplomats to enable predictable diplomatic interaction between states. Immunities are essential for diplomatic interaction. They also provide a safety net for intelligence officers posted under cover in Embassies. The identity of such officers is known or discovered by host countries. Whenever their activities cross the acceptable line, they are declared persona non grata and are publicly expelled. Reciprocal action is taken in such cases by the other country. Diplomats caught in unbecoming acts including criminal acts such as smuggling or bribing are withdrawn quietly at the demand of the host country or suo moto. Reciprocal action is seldom taken in such cases.

Till about four decades ago, a laissez-faire approach was taken in the working of Missions. Issues relating to commercial disputes of embassies or differences between embassies and local employees were almost always resolved quietly between the embassies and foreign ministries. They were not allowed to reach the courts. It was generally felt that local staff were outside the jurisdiction of the application of local labour laws even if their work contracts were more generous than the contracts between embassies and local staff. Western countries took the lead in asserting that their labour laws would cover employees recruited locally by embassies and disputes between them would, if necessary, have to go to the courts whose decisions would be executed. Bank accounts of some embassies have been frozen on orders of Italian courts or payments made from them in commercial or labour disputes.

Defining family

There was certainly no attempt at intervening with home based personnel including domestic help. Now this is being done regularly as in the Indian domestic help’s case. Court action is being allowed even though they are Indian nationals, are recruited in India and always travel on official passports.

Another emerging problematic area is the definition of family itself. The Convention prescribes that members of a diplomat’s household also enjoy immunity. It does not define household but it is accepted that household means family. The official definition of family differs from country to country. In the past, a relaxed attitude was taken and dependent children irrespective of their age or dependent parents were accepted as family and given the protection of the Convention. Now, western countries and some others are applying their official definition of family. Consequently many diplomats from developing countries with elderly single parents or dependent university going children face problems. On the other hand western countries are urging that live-in partners of their diplomats be accepted as family members under the Convention.

Inherent to the Vienna Convention is the practice of reciprocity. Reciprocity can be applied if a diplomatic privilege is restricted or denied by one country, even if it is applied uniformly to all diplomats stationed there. The problem lies in uneven situations where on account of their power and economic clout some countries can get a better deal for their diplomats.

There is no absolute freedom of movement for diplomats. Many countries require that diplomats seek the clearance of the Foreign Ministries before leaving the capital city. In any event, sensitive areas are out of bounds for them. The European Union mildly and indirectly protested against the Supreme Court’s decision that the Italian Ambassador should not leave the country till it heard the matter on April 2. In view of the sui generis circumstances of the case, this writer feels that it was not unwarranted.

The Vienna Convention is now 50 years old. In these decades, the world, including that of diplomacy, has changed in fundamental ways. A review of the Convention will be timely.

(Vivek Katju is a former Indian Ambassador to Afghanistan and Myanmar.)

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