Tag Archives: Ministry of External Affairs

Fresh Blood

30 Tue Jun 2015

Posted by in India, South Asia

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The Indian Ministry of External Affairs put out an announcement yesterday, advertising for consultants for its Policy Planning & Research Division. This followed several articles in the past two years criticising the limited manpower and hence expertise of the Indian Foreign Service and some recent speculation about the expansion of the Service via lateral entry into the cadre. The move has been welcomed by most and it can only be hoped that it is only the first in a series of moves that will revamp and energise India’s foreign affairs circles.

As several India observers have remarked already, the size of the IFS is remarkably small for a nation of India’s size and interests. To be fair, it is only recently that Delhi’s role on the world stage has grown; its growing economy has compelled India to make inroads in trade and security in all corners of the world. Furthermore, it cannot help but be more involved as its northeastern neighbour and rival drags the world’s economic centre of gravity back to Asia. South Block’s holiday during the post-Nehruvian slump years ended in the mid- to late 1990s though little was done to boost its capabilities until now.

The announcement, though a step in the right direction, is a short-term measure and leaves much to be desired. First, the advertisement seeks experts for a period of three years. Given that the hire is not into the IFS cadre, hierarchy and prospects for upward mobility on the job are unclear. Most applicants will therefore treat this as a line entry on their resume or a sabbatical from their “real” job. Such a temporal attitude hardly encourages the development of expertise in a field and the PP&RD will effectively be turned into a long workshop on government procedure and thinking.

Reaching out to domain experts – on regions as well as issues – is an excellent idea but the presumption is usually that this expertise is developed elsewhere and brought in on specific projects. In this manner, the MEA can augment its in-house expertise at will from a large pool of experts in industry and academia. Towards this end, as former foreign secretary Nirupama Rao has suggested most recently, an MEA think tank could be created. This group would be tasked with formulating position papers on a variety of key issues to provide the IFS with immediate expertise. The necessity of consultants would not be obviated because the manpower requirements for a think tank to remain at the forefront of research on all topics the external affairs ministry of a rising regional power  might be interested in would be gargantuan.

The Indian government must also understand that the entire system of consultants and think tanks depends on access to information. Policies have an administrative and political history and it is vital to take this into account as well as the contemporary goals of the state. Declassification of government files would greatly assist in developing foreign policy experts but any move on this front has been in dribs and drabs. For some unfathomable reason, every Indian bureaucrat I have met at home and abroad takes great pride in the state of the National Archives and the declassification process. Perhaps a visit to similar facilities in Germany or Britain may be in order to fully appreciate the capability of national archives and freedom of information.

India’s library collections, even in the metros, are also pitiable. Foreign publications are expensive for the Indian wallet and scholars cannot finance all their intellectual needs out of their own pockets. The sheer volume of research generated every year from even just the top institutions would require the salary of an entertainer or sportstar to keep up with. The development of just one world-class national library in each of India’s four or five largest cities – without borrowing privileges – would immeasurably improve access to international manuscripts and journals. As an example, Harvard University’s library system has approximately 19 million books and an annual operating budget of $160 million.

The MEA fails to realise that – or at least has chosen not to act on it yet – a pool of experts it can consult or develop in-house requires a nurturing environment of sound academic institutions, freedom of information, and access to data. These are the larger infrastructural problems that need to be addressed in the long-term. For now, the lateral hiring is a positive step. Let us hope it will be followed by a full spectrum of reforms and development soon.

This post appeared on FirstPost on July 02, 2015.

The Italian Marines Case – Two Years And Counting

25 Tue Feb 2014

Posted by in India, South Asia

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It is no surprise that even two years after India arrested Massimiliano Latorre and Salvatore Girone, two Italian marines on the MV Enrica Lexie, its courts are yet to resolve the case. After initial disputes over jurisdiction of the marines and a brief fear over their flight, Italy agreed to India’s adjudication over the case after the Ministry of External Affairs promised not to seek the death penalty. Since then, the case has hardly moved forward except to wade into the minefield of political posturing.

In March 2013, the Government of India announced the establishment of a special court to hear the case; this was largely to expedite a case that would have a direct impact on the country’s foreign relations. However, contrary to the MEA’s assurance not to seek the death penalty, the Ministry of Home Affairs decided to prosecute the Italians under the stringent Suppression of Unlawful Activities Act.

In response to Delhi’s sudden hard stance – the marines had been allowed to go home over Christmas and to vote last year – Rome recalled its ambassador, Daniele Mancini, to discuss the issue. The Italian foreign ministry condemned the “evident Indian inability to handle the issue” and has complained about yet another “unacceptable, deliberate delay” in the courts. While the Italian government summoned the Indian ambassador to register a protest, some Italians have taken to writing hate mail to the Indian Embassy and a live bullet was found in the mailbox a few days ago.

The invocation of SUA, unwittingly or otherwise, has consequences far beyond the immediate trial of the marines. The Italian government has told the Supreme Court of India that charging their marines under SUA is tantamount to declaring Italy a terrorist state. Rome has also approached its European Union counterparts as well as the United States to urge them to condemn India’s charge of piracy against the Italian marines. NATO has expressed concern over Delhi’s reckless expansion of the scope of piracy and terrorism as has the European Union.

The uncertainty over which law the Italians would be tried under even after two years – the GoI has changed its mind six times – led the SCI last week to ask the government to file an affidavit clearly specifying the law under which it intends to try Latorre and Girone. Buckling under international pressure, Delhi dropped the charges under Section 3(g) of the SUA which carried the death penalty if found guilty. The GoI insists that the trial will be held in India and hopes to retain charges under Section 3(a) of SUA which carry ten years imprisonment for the guilty. Italy has objected to the very notion of an anti-terrorism law being applied to its marines and asked that Latorre and Girone be allowed to go home until the trial starts.

The marines case did not make much of a splash in Italy two years ago when the marines were initially arrested; most Italians were content for the law to take its course. However, the inept handling of the case by the Indian government has put the issue in the spotlight in Italy and support for the marines has increased dramatically. Italy’s new prime minister, Matteo Renzi, has assured his countrymen that the “absurd and infuriating affair” will remain a priority for him. The Italian press has now even suggested that India’s ruling Congress party is trying to secure a quid pro quo between the case of the Italian marines and the AgustaWestland corruption scandal.

Unfortunately for Latorre and Girone who have already spent two years in limbo in India, the upcoming general elections make progress on their case extremely difficult. If the GoI releases them until charges are filed, or if it decides, by an uncharacteristic stroke of common sense, to diplomatic arbitration as Italy had initially suggested, there is little doubt that Sonia Gandhi’s Italian origins will be bandied about in the press and on social media. However, pushing on may reveal the weakness of India’s position, that the marines are culpable, at most, of homicide not amounting to murder. Indians might ask, then, why the case was not settled two years ago and the generous compensation package offered by Italy accepted. To a long list of election woes, the Congress may not wish to add yet another one.

There is no level at which this case has not  been mishandled by the government. From the initial claim over jurisdiction to the questionable permission for the marines to go home and now the indecision over what law to try the accused under, politics and public perception have been allowed to undermine the judicial process at every step. While two years to file charges may be considered quick by Indian standards, it is positively shameful in any modern democracy. The GoI’s behaviour has turned a non-newsworthy arrest into popular public support for the marines back home, a disinterested Italian press into one that hints at conspiracies and further scandals in India, and bystanding European nations into concerned Italian allies.

The Home Ministry has openly worked against the External Affairs Ministry (to what end can only be speculated) and harmed India’s ties with a friendly foreign power for the sake of Delhi’s incessant domestic squabbles. That no one in the government sees this for the diplomatic train wreck that it is or does anything about it makes one wonder if India’s leaders are indeed ready to play a larger role on the world stage that they often lay claim to. The tragedy of the two slain fishermen has now been compounded by the unreasonably long captivity of Girone and Latorre. Whether justice is forthcoming soon or not, India and its legal system have been made to look the part of a clown on the international stage.

This post appeared on Daily News & Analysis on February 27, 2014.

Limits and Sacrosanctity of Diplomatic Immunity

13 Fri Dec 2013

Posted by in India, South Asia, United States

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On December 12, Devyani Khobragade, India’s deputy consul general for political, economic, commercial, and women’s affairs in New York, was arrested on charges of committing fraud in the US visa application for her maid, Sangeeta Richard. Khobragade, who enjoys diplomatic status, was handcuffed in public and later released on bail of $250,000. A US State Department official said that Khobragade was not covered by the Vienna Convention on Consular Relations (VCCR) in this matter because “the Indian Deputy Consul General enjoys immunity from the jurisdiction of US courts only with respect to acts performed in the exercise of consular functions.”

The irony of the situation is hard to miss – it was barely nine months ago that India had detained the Italian ambassador to New Delhi, Daniele Mancini, and threatened to prosecute him because immunity from jurisdiction applies only with respect to acts performed in the exercise of diplomatic functions. There is also much schadenfreude going around over Khobragade’s arrest – many Indians are frustrated with how India’s rich and powerful seem above the law and are glad to see one of them face the consequences of their actions. Many twitterati have remarked that the real injustice – Khobragade’s mistreatment of her employee – should not be lost sight of when protesting the violation of consular protocol.

The fact is, regardless of the severity of Khobragade’s alleged fraud, the United States has violated international law on two counts at least, once by arresting a foreign consular officer and a second time by handcuffing the said consular officer. As Art. 41(1) of the VCCR states, “[c]onsular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.” The second clause of the same article goes on to state that “consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.”

From the cursory statements made by the US State Department and the US Attorney’s Office of the Southern District of New York, the case against Khobragade may be based on Art. 43(1), which declares that “[c]onsular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.” This means that the United States does not consider the appointment of personal employees by a consular official as important to the execution of consular functions.

Historically, diplomatic immunity has been extended on the strength of one or more of three theories – personal representation, extraterritoriality, and functional necessity. The first suggests that a diplomat is, in a sense, the personification of the sovereign he represents; the second argues that diplomats’ offices, residences, and persons are to be treated as if they are always on their home soil; and the third theorises that immunity should be extended to diplomats only to the extent that they may be able to carry out their duties without hindrance. With the passage of time and shifts in the nature of the diplomatic venture, the first two theories have been abandoned for various reasons in favour of the third.

The theory of functional necessity leaves much room for interpretation as the US position in the Khobragade case shows. What is necessary for a foreign mission to function is likely to be seen differently by different people, and a consensus may be difficult to reach even among judges. However, there has been increasing clamour among activists and legal scholars for more a restrictive interpretation of functional necessity, particularly in cases of human rights violations. This demand is based on the preamble to the VCCR, which grounds the granting of privileges and immunities on the understanding their purpose “is not to benefit individuals but to ensure the efficient performance of functions by consular posts.” Furthermore, it must be remembered that the Vienna convention was a reaction against the unlimited immunity that had been enjoyed by diplomats until then.

Many of the immunities enjoyed – abused – by diplomats were not conceived of by the drafters of the Vienna conventions and the treaty was not meant to extend to such actions. For example, in 1987, the ambassador of Papua New Guinea to the United States was held for driving under the influence and the State Department took the rare step of instructing the US Attorney to prepare a criminal case against him. Due to his diplomatic status, the ambassador could not be arrested but once he left the country, he would he not be allowed to return as a diplomat and thus be exposed to the criminal charge. In 2012, another Indian consular officer, Neena Malhotra, was fined by a New York City Magistrate Judge for the use of and barbaric treatment of underaged labour at her residence.

The logic behind a restrictive interpretation of functional immunity is that while a diplomat may be protected from some distractions to aid his purpose, there ought to be no need for him to violate the laws of his host state to do so. As many legal scholars have pointed out, a diplomat’s behaviour in his host country is best described by the Arabic proverb, يا غريب خليك أديب (ya ghareeb, khalleek adeeb) – o stranger, be thou courteous.

The US Attorney has restricted the charges against the Indian deputy consul to visa fraud and not filed any charges for either mistreatment or violation of US labour law yet. Is the application for an A-3 visa a consular function? The US Attorney does not think so, but it is difficult to argue that domestic help does not further the functioning of a consular officer. To illustrate the point, in the movie A Few Good Men, lawyer Daniel Kaffee asks Corporal Jeffrey Howard if the failure of the Marine Corps Guide to mention mess halls means that he had not been fed while on base. There are numerous unstated practices and understandings which resist easy codification and leeway must be given, in this case to the State Department and the Indian Consulate, in their interpretation.

Even if a case could be made for Khobragade’s immunity, her willful violation of US law is harder to refute. Indeed, the defence has claimed diplomatic immunity but is yet to deny the fraudulent visa application for which Khobragade has been charged. The United States would be well within its rights to declare Khobragade persona non grata. Such an action would be in line with the State Department’s history of taking a stricter view on functional immunity, but that still leaves Washington with having to explain the violation of the personal inviolability of foreign diplomats.

In Khobragade’s defence, it must be recognised that the Indian Foreign Service provides domestic assistants to senior posts in diplomatic missions. Although these are provided at government expense, they are not recognised as part of the mission staff by many host countries. Article 47 of the VCCR clearly states that “[m]embers of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.” However, the United States does not recognise domestic help as rendering services to the sending state. The US A-3 visa, for example, is reserved for “personal employees” of diplomats. This discrepancy between Indian practice and US law is something usually more honoured in the breach than the observed but nonetheless remains a wrinkle.

The Khobragade episode raises a more pertinent question than the one of diplomatic immunity – what kind of people is India’s Ministry of External Affairs (MEA) hiring to be the country’s face to the world? In the last two years alone, two Indian consular officers to the United States have been in the news on charges of fraud and mistreatment of employees. In this latest case, Khobragade’s name has already appeared in relation to the controversial Adarsh Cooperative Housing Society scam and yet she was chosen to represent India to an important international partner. Is the Indian Foreign Service so short-staffed that they need to appoint people with questionable backgrounds to important posts around the world?

It is highly unlikely that the MEA or Khobragade were unaware of US visa or labour laws. In effect, the Foreign Service officer knowingly and willfully violated the laws of a foreign power, one is tempted to say, with the same hubris shown at home. It is well known that appointments to countries of significance such as the United States, Russia, or Great Britain are handpicked by the government due to their sensitivity and importance. The question arises, how has the United Progressive Alliance’s MEA dropped the ball so badly in the last few years? Why is South Block hiring people of dubious repute?

In international politics there is no right or wrong, only sovereignty and the power to defend it. That, however, should not be taken to mean that it is a wise course of action for Delhi to send diplomats with question marks in their records to represent it in foreign capitals; it hurts the reputation of India and Indians to be represented by people who make the news for the wrong reasons. It certainly is not the way Delhi’s much touted soft power operates.

This post appeared on Daily News & Analysis on December 16, 2013.