The Jumbo Everyone Loves to Take for A Ride

Kanwal Sibal, 

Dean, Centre for International Relations and Diplomacy

Some caveats are necessary before pronouncing on the UPA government’s foreign policy, especially the apparent mishandling of relations with Sri Lanka and the case of the Italian marines, as well as the setback in the Maldives. First, no country can have a foreign policy that is seen as being without fault by the public. This is particularly true of democracies where all kinds of opinions get expressed; political partisanship is normal as Opposition parties will always find some reason to contest government decisions, and the civil society has its own views on how policies should be framed on humanitarian and peace-building issues in particular.

Second, even countries more powerful than India, better governed, with wider internal debates and inputs from specialists, with greater sense of purpose and more aggressive in safeguarding national interest appear to make serious foreign policy mistakes or manifestly fail to achieve their objectives.

Third, it should not be assumed that big countries can have their way with small countries. The international system presents an obstacle as principles of sovereignty are involved and the reaction of competing powerful countries, in the region or outside, have to be factored into decision-making, especially if the smaller countries have a sensitive geopolitical location.

A further point needs to be made specifically with regard to India. Our foreign policy problems are numerous and complex. Pakistan has been a perennial problem ever since we became independent, confronting us with military challenges, religious extremism and terrorism. Our other neighbours, barring Bhutan, have played external powers against us as a balancing factor. China and Pakistan have boosted the capacity and the confidence of our neighbours to oppose us and, until the major improvement of our relations with the US, the American card has come in handy too. It is not absent even today in the triangular India-US-Pakistan diplomatic equation, with the situation in Afghanistan adding to its complexity.

The issues relating to the presence and treatment of Indian ethnic groups in neighbouring countries makes the management of relations with the latter more difficult. These issues spill over into domestic politics and cannot be treated solely as a foreign policy agenda. Our response to Islamic terrorism from Pakistan, which is essentially a foreign policy challenge, gets embroiled with the secular-communal debate in India as well as electoral considerations because a robust physical and legal response to local linkages of Pakistan-sponsored terrorism is seen as targeting our own Muslim population unfairly.

With all these caveats, our handling of the Sri Lanka issue at the recent UN Human Rights Council (UNHRC) at Geneva deserves to be seen as a particularly low point in our diplomacy. Sri Lanka has not been an easy partner to deal with; its discriminatory policies towards the Tamil population have been the source of tensions with India for long. If Sri Lanka had been wiser, it would have avoided creating a festering domestic ethnic situation that objectively impinged on India and was bound to provoke Indian interference and be a source of mistrust between the two countries. Sri Lanka has not, as a result, been sufficiently cognisant of our security concerns. It has exploited its geopolitical position and our adversarial relationship with China and Pakistan to carve out space for itself to frustrate us in many ways. It has played its cards ably by also cooperating with us in some areas and giving us enough stakes to blunt our responses to its provocations.

Sri Lanka’s failure to resolve ethnic issues after crushing the LTTE, the lack of progress on reconciliation and accountability issues, the reneging on implementing the 13th Amendment, the agitation of the issue of human rights violations of the civilian Tamil population in the final stages of military operations against the LTTE by the Sri Lankan diaspora, amplified by reports of Human Rights Watch and Amnesty International, all led to the stigmatisation of Sri Lanka on human rights issues in a US-sponsored resolution at the UNHRC last year. India departed from its principled position not to back country-specific resolutions at Geneva by voting in favour of the resolution after working to dilute those parts of it that were too intrusive and disrespectful of Sri Lankan sovereignty.

Our positive vote then and this year was a mistake. India has itself been targeted for human rights violations in Jammu & Kashmir by the Human Rights Watch and Amnesty International without any allowance for its democracy, the independence of its judiciary, an alert press and the fact these organisations largely relied on exposures of abuses by Indian sources. The US too has played its part to embarrass India in the past on human rights violations in Jammu & Kashmir in a bid to be even-handed towards Pakistan accused of abetting terrorist attacks against us. We have had to fight attempts by Pakistan to castigate us at the human rights forum at Geneva.

This time too, India worked initially to moderate the resolution on these counts. Having departed from its principled position last year, India could not vote against the resolution or abstain this year without a show of tangible progress by Sri Lanka on pending issues, including on the recommendations of the Lessons Learnt and Reconciliation Commission. What made our diplomacy almost farcical at Geneva was the bizarre attempt by India to work at the last minute to strengthen the very resolution that it had worked to soften earlier, not because any objective external policy factor had changed or the Sri Lankan government had committed a new breach of human rights or that India had not done its diplomatic homework earlier thoroughly enough and new factors had emerged to warrant a review of its earlier position. It was simply a case of internal threats to the UPA government form the DMK, the latter’s demagoguery on “genocide” in Sri Lanka four years after military operations in the island nation have ended that led to this last-minute scramble to appease an internal regional lobby at Geneva.

Worse for us, we got rebuffed by the US as it feared toughening the resolution may reduce the number of countries supporting it. We ended by looking bloody-minded and the US looking moderate. Such conduct erodes the credibility of our diplomacy abroad, besides raising fears at home that the government in New Delhi is losing grip over foreign policy under regional pressures. This has other longer-term implications — unless the primacy of New Delhi in foreign policy is restored — in that foreign countries and missions will start interacting at the regional level in terms of understanding the dynamics of Indian foreign policymaking and influencing it outside New Delhi.

The case of the Italian marines has lost its dramatic edge after their return to India. The Italians were escalating the issue by defying the Supreme Court and treating India with political disdain. The Supreme Court, in return, was escalating a bilateral issue with Italy into a multilateral one with the larger international community by interpreting the provisions of the Vienna Convention on Diplomatic Relations (VCDR) on diplomatic immunity in a way that would uphold its dignity. The government was caught in a vice as it could not give precedence to its international obligations over the views of the highest court of the land. When the Italians protested against the court’s order restraining the Italian Ambassador from leaving the country, it took the plea that while it was aware of the provisions of the VCDR, it was bound by the court’s decision.

The problem might have been avoided in the first place if the government was not so accommodative towards the marines by opposing back-to-back furloughs to them in Italy on unconvincing grounds. The government also did not guide the Supreme Court properly on the issue of diplomatic immunity of the Ambassador and the unenforceable nature of his undertaking, which was political rather than legal in character. Of course, by disowning its word, Italy was guilty of a serious breach of faith. The government can take credit that its firmness compelled Italy to review its decision on the marines, and the Supreme Court even more so by its willingness to reinterpret the VCDR to suit the particular circumstances of the case.

The Italian government has shown political courage in reversing its decision despite potential backlash at home and deserves to be commended for acting sensibly and honourably at the end. It would be wise for India not to claim a diplomatic victory as escalation would have hurt the interests of both countries.

The defiance with which the Maldives have treated Indian interests in the commercial dispute with GMR over the airport contract and later the way the understanding reached with Indian emissaries over the arrest of former president Mohamed Nasheed was violated has provoked a debate on the conduct of the country’s foreign policy reflected in its inability to exercise sufficient weight in its periphery.

Since India looms large in our smaller neighbours and our representatives there get will-nilly involved in their domestic politics, we need to pay greater political attention to even the smallest of them and assign diplomats there with appropriate political skills. Beyond this, of course, we have to keep in mind that even powerful countries cannot easily bully neighbours — the US has tasted the defiance of Venezuela and Cuba. We have also to contend with the China factor in our neighbourhood.

What is important, however, is the assessment countries make of India’s likely responses if its vital interests are undermined. If their experience tells them that India’s tolerance levels are very high and that they can get away with defiance, they will be prone to do so. But if the perception of India changes and it is seen as acting boldly to protect its interests, the inclination to defy India would be less. Our softness towards both China and Pakistan, despite provocations, gives an image of accommodation, prudence, undue caution, a disinclination to be provoked and a reluctance to make hard choices. There is a range of conduct between being aggressive and being pusillanimous. Our foreign policy has to show greater firmness, which has not been the hallmark of the UPA government or those before it.

Back From The Brink

Kanwal Sibal, Dean, 

Centre for International Relations and Diplomacy

Contrary to all expectations, the Italian marines have returned to India for trial. After having formally announced that the marines will not come back, the Italian government has dramatically reversed its position. This suggests that the hardliners in the government — apparently the foreign and defence ministers — have been overruled by wiser heads. It was not normal for a country with diplomatic traditions as old as Italy’s to violate its solemn word to another friendly country so flagrantly, striking by its action at the basic structure of diplomacy which rests on the principle that countries will honour their commitments.

Even if the Italian government has had to swallow its pride and lay itself open to the charge internally of grossly mishandling the case in the first instance and misjudging the strength of the Indian reaction, especially that of the Supreme Court, it is just as well that good sense has prevailed and further escalation of differences has been avoided.

In such cases of volte-face, especially by a major European power, some face-saving compromise between parties can be expected, but no such compromise is visible. The clarifications sought by Rome and given by New Delhi that the marines will not be arrested on their return and will not face the death penalty amount to little as the marines were already on bail, were returning within the four-week deadline laid down by the Supreme Court and the circumstances of the case do not at all justify the death penalty.

It is just as well that the situation has been defused and further deterioration of bilateral ties averted. By announcing that the marines would not return, the Italian government had deliberately raised the political and legal ante to a level that put enormous stress on bilateral ties. The Supreme Court and the country at large felt duped by the Italian decision. It defied belief that the Italian government would knowingly give a false affidavit to the Supreme Court and cover up further its deceptive intentions by approving a false undertaking by its ambassador. Even if the Italian government has strongly disagreed with India’s position on jurisdiction over the two marines, and even if it has faced intense public pressure at home to defend their rights, recourse to duplicity and fraud to spirit away the marines from Indian judicial control was hardly defensible. It had the option to take strong political steps to show its displeasure by recalling its ambassador in protest, curtailing official links, mobilizing the European Union in its favour, taking up the issue in whichever international forum was available to it. It opted, instead, to show contempt for the Indian Supreme Court and disdain for India.

In a sense, the conditions for the crisis were created by the Indian side. The Supreme Court was extraordinarily accommodating in entertaining the plea to let the marines go back to Italy in February for voting when they had returned just a month earlier after spending Christmas with their families. Why did the Supreme Court feel that it was important that they should vote? In granting successive furloughs in Italy, the consideration shown for those responsible for recklessly killing two Indian citizens seemed excessive.

The Supreme Court, for all its generosity, had to have a guarantee that the marines would return. Such a guarantee could only come from the ambassador in the name of his government, and it was given. It was overlooked that this guarantee was inherently political, not legally enforceable in case of default. Neither the counsel for the Italians nor the government counsel had reason to clarify to the judges that, under the immunity provisions of the Vienna Convention on Diplomatic Relations, any undertaking by the ambassador would not be legally actionable against his person if not eventually honoured, as both wanted the marines to have a break and were willing to rely on the good faith of the Italian government. In retrospect, the Supreme Court could be accused of being naive, but, in all fairness, neither the court nor the government could have anticipated the Italian government’s unscrupulous conduct.

While the furore in India over this was justified, calls for punitive action against the ambassador, even by leading jurists, on the ground that the ambassador had voluntarily subjected himself to the jurisdiction of the Supreme Court, seemed ill-conceived and violative of the provisions of the VCDR, which are clear about the diplomatic immunity of ambassadors.

The Vienna Convention (Article 32.2) says that the waiver has to be expressed. In this case, the Italian government did not say, nor would it have done so, that in case of default the ambassador could be proceeded against legally as his diplomatic immunity could be considered waived. The convention also requires a second waiver for the execution of any judgment, which means that even if the court were to claim that the Italian ambassador had voluntarily submitted himself to its jurisdiction in the first instance, a further waiver by the Italian government of the ambassador’s immunity would be necessary for any punishment. Article 32.3, which says that initiation of proceedings under Article 37 by a diplomatic agent will not allow him to claim immunity in case of a counter-claim directly connected to the principal claim, is not applicable as Article 37 relates to families of diplomatic agents, the service, technical and administrative staff of the mission, and not to the ambassador.

The Supreme Court’s order restraining the ambassador from leaving the country has already created a major precedent by interpreting loosely a country’s obligation under the VCDR to respect the diplomatic immunity of an ambassador. This has caused serious disquiet in diplomatic missions in New Delhi, as the possibility that Indian courts could, in future too, interpret the principle of diplomatic immunity circumstantially cannot be ruled out. In any case, bilateral options against Italy being available to us, converting our differences with Italy into an international issue by seriously infringing the VCDR and disturbing the principles of diplomatic functioning in general would have been most unwise.

The Italian government showed prudence in not asking the ambassador to defy the court’s order, as any physical restraint on him would have gravely escalated matters. The court’s order and the external affairs ministry’s statement that the government was bound by it did put enormous political and psychological pressure on the Italian government. The EU has been measured in its support for Italy, but a big India-EU dispute could have arisen if we had been cavalier with the VCDR. While it is true that American and European countries have disregarded the principle of diplomatic immunity by subjecting some of our missions to local labour laws, to judgments of local courts on compensation issues — attaching bank accounts to force payments, imposing traffic fines and so on — we have to be careful not to widen the scope of such breaches by unilateral action against the person of an ambassador.

Fortunately, escalation has been avoided. The Italian government should be commended for retreating from an untenable position. For us, seeking to rewrite international law on diplomatic immunity was a fraught option. India and Italy can now, hopefully, resume normal, friendly business with each other.

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