However, the Official Statement of the Ministry of External Affairs (MEA) has clarified that India has not violated any international legal principle and has adhered to Article 11.1 of the VCDR based on two-pronged reasons. Firstly, Canada has a massive number of diplomatic staff in India as compared to its counterpart and secondly, the Canadian personnel have been continuously interfering in India’s internal affairs. This has raised the question on the legality of the unilateral removal of diplomatic staff and subsequent revocation of their immunities and privileges.

What does VCDR say?

The VCDR states 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.”

The provision clearly states that the receiving state (India) can unilaterally decrease the size of diplomatic missions of the sending state (Canada) based on reasonable considerations.

Historically, the imposition of the ceiling was to ensure the sending state does not employ subversive activities by employing a large number of diplomatic staff, thus exploiting their diplomatic immunity and privileges. In this regard, India’s decision is neither unique nor contrary to international practices. Interestingly, both the US and the UK, who purportedly opposed the move, have utilized Article 11 to decrease the number of Soviet diplomats on account of espionage activities during the Cold War era. For instance, the UK in 1971 imposed a ceiling on Soviet Diplomatic missions after it expelled 105 diplomatic staff for “inadmissible activities”. The UK Government, while reviewing the Vienna Convention in 1985, even went on to add that a “possible future involvement in unacceptable activities” can be a reasonable justification to impose ceilings on diplomatic staff.

The US in 1979 imposed diplomatic parity on the Embassy of Iran by reducing the diplomatic staff to 15 due to the seizure of the US Embassy in Tehran by terrorists and taking the diplomatic staff as hostages against the fulfilment of Iranian ‘demands’. A parallel can be drawn in the present case where the Indian government has constantly reminded Canadian authorities to ensure the security of Indian diplomats amidst public calls for violence against them, including the Indian High Commissioner, by the Khalistani terrorists. Dr S Jaishankar, while commenting on this diplomatic row, even categorically stated that constant security threats to the Indian diplomats was the primary reason to stop issuing visas. He further hinted that the Canadian High Commission has been constantly interfering in India’s internal affairs.

In another instance, the US Congress in 1985 imposed restrictions on the size of diplomatic staff in the Soviet mission to the US. Following that, both nations regularly imposed these measures for years on account of espionage activities and internal interference until recently, when the US imposed numerical parity in 2016-17 on account of Russian interference in the US Elections. In 2015, Venezuela imposed diplomatic parity by reducing the number of US staff from 100 to 17 amidst the allegations of an attempted coup against President Maduro. Most recently, Estonia and Moldova, in January 2023, citing Russian interference in their internal affairs, asked Russia to downsize their staff from the respective embassies. Therefore, these historical precedents reflect that India’s concerns based on Canadian interference in its internal affairs are “reasonable and normal” under Article 11.1 of the VCDR.

Do Canadian Arguments hold water?

The law of treaties requires consideration of the drafting history, i.e., the intention of parties in adopting a treaty to interpret certain provisions of the same treaty. The drafters of VCDR in the International Law Commission initially intended to empower the sending state with discretion over the composition and strength of consular missions to another state. Nevertheless, in later Vienna Conferences, the discretionary power shifted to receiving states to unilaterally determine the ‘reasonable and normal’ strength of a consular mission. The Canadian government itself advocated for such discretion of receiving states through its declarations in 1978 as against countries advocating for mutual agreement on deciding the size of embassies. Moreover, considerations of diplomatic parity and the provision of a reasonable period of roughly a few weeks (though not officially stated) by India for Canadian diplomats to return to their own countries rule out any assumptions for unreasonableness.

Further, given the availability of this subjective discretion to India, the recall of 41 Canadian diplomats is at most a politically arbitrary decision. It is nowhere a violation of international law, as claimed by the Canadian Foreign Minister. Even in a scenario where the recall is considered objectively 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. This is based on the principle that the wrongfulness of any action is precluded under international law if the same is justified as a countermeasure in response to a previously wrongful act. As far as the statements by the US and UK are concerned, it is contradictory to their own state practice and merely a political statement not backed by international law. Therefore, India’s demand for diplomatic parity by invoking the Vienna Convention is not only justified but also highlights the necessity of safeguarding its national interests by securing a robust legal basis for its diplomatic decisions.