India must claim damages for attacks on embassies

The failure to provide protection to Indian missions does not automatically mean that New Delhi ought to be compensated for the damages to the property or for the injuries to its employees. It is, however, open to India to make claims with respective countries for existing and future incidents

Vandalism at Indian missions in the United Kingdom (UK), United States (US), and Canada by elements backing the separatist Khalistan movement, including the outrageous act of pulling down India’s national flag, have rightly caused New Delhi to lodge official protests. Due to these actions, the property of Indian missions has been damaged and some employees injured. While the British and American authorities have denounced these events and New Delhi summoned the UK and Canadian envoys to lodge protests, that’s not enough.

Khalistan supporters protest outside Indian Embassy in Washington, US. (PTI)

This is a serious international law concern because it affects one of the core issues that form the basis of relationships between States — diplomatic and consular relations. The two key international treaties that govern these relations are the Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR). These treaties have more than 190 countries as signatories and at the heart of these agreements lies a functional approach aimed at ensuring that a country’s mission abroad can perform its functions efficiently only when it is situated in the territory of the receiving country.

It is as part of this approach that Articles 22(1) and 31(1) of VCDR and VCCR, respectively, enshrine the principle of inviolability i.e. the sanctity of diplomatic and consular premises. Recognising the significance of this principle, the International Court of Justice in the 1980 Tehran hostages’ case — when the US successfully brought a claim against Iran after American diplomats were held hostage at the embassy by militants — held that the inviolability of diplomatic envoys and embassies is a “fundamental prerequisite” for the conduct of relations between countries.

Accordingly, the premises of a sending state’s mission, such as the Indian high commission in London, cannot be interfered with by anyone, even the authorities of the State where it is located, without the permission of the mission’s head. The natural consequence of this inviolability is that the receiving State, the UK in this case, under Article 22(2) of the VCDR is under a “special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.”

It is this special duty of protection that the UK, US, and Canada have failed to perform. In an apparent response, India withdrew security measures outside the British high commission and the high commissioner’s residence in New Delhi. This act is also permitted under Article 47 of VCDR which protects India’s ability to reciprocate the lack of security and protection its mission experienced in London. It is important to recall that in 2013, India took similar action of removing security equipment around the American embassy in Delhi in response to the US arresting Devyani Khobragade, an Indian diplomat.

What more can India do? Under international law, the failure to provide protection to Indian missions does not automatically mean that New Delhi ought to be compensated for the damages to the property or for the injuries to its employees. It is, however, open to India to make claims with respective countries for existing and future incidents based on their official practice. For instance, in 1994, the UK’s Foreign and Commonwealth Office shared with all diplomatic missions a note to clarify that while the UK did not consider itself under any obligation to pay compensation for damages due to attacks on diplomatic missions, it may still compensate the sending State (the country which sends its envoys) ex gratia, except in cases where the property was insured against such attacks. A similar policy position with respect to damages to diplomatic premises exists in Canada too, as recorded in an advice note tendered by the Canadian Department of External Affairs in 1967.

Relying on the British and Canadian practices, India should make a claim for compensation for the attacks and the damage caused to the Indian missions. If nothing, it would at least put pressure on these countries to ensure that they respect the key principle of inviolability.

Prabhash Ranjan teaches at the Jindal Global Law School. Shantanu Singh is an LLM candidate at the Geneva Graduate Institute

The views expressed are personal