Tuesday, December 24, 2013

Diplomatic Immunity in Tibet?

Indian Trade Agency in Yatung
L'affaire Devyani Khobragade, which has been in the news for some time in India, raises the issue of how diplomats are treated while posted abroad, as well as the question of diplomatic immunity.
There is no doubt that the way of Americans treat 'suspects', whether they have a diplomatic passport or not, is rather tough, to say the least.
Dominique Strauss-Kahn, although he might not have been a saint, experienced it before Devyani Khobragade.
Without comparing the cases, it is interesting to see how the Chinese treated the Indian diplomats, the staff of the Indian missions/trade agencies in Tibet and even ordinary Indian nationals in the 1950s in Tibet.
The Indian diplomats were constantly harassed by the Chinese authorities who had no clue about what 'diplomatic norms' meant.
One will note the rather weak stand of the Indian Government; instead of 'reciprocating' the harassment, the Ministry of External Affairs just keeps complaining, orally or in writing.
China would have certainly understood the issue better, if the staff of its Consulate in Kolkata or Kalimpong, had been subjected to the same treatment than their Indian counterparts in the Indian Trade Agencies of Yatung or Gyantse.But India is not a bully and the harassment continues till 1962 when the Mission in Lhasa and the Trade Agencies in Yatung, Gyantse and Gartok were closed.

Here are some excerpts from Notes, Memoranda and letters Exchanged and Agreements signed between The Governments of India and China (White Paper II, September to November 1959)
Note given by the Ministry of External Affairs, New Delhi to the Embassy of China in India, 26 October 1959

The Ministry of External Affairs of the Government of India present their compliments to the Embassy of the People's Republic of China and have the honour to refer to the Chinese Government's note presented 10 the Ambassador of India in Peking on the 11th September 1959. The following paragraphs deal with that note in so far as the difficulties of the Indian representatives at posts in Tibet other than Gyantse are concerned. Two separate notes are being simultaneously presented to the Embassy in regard to the difficulties in Gyantse and the difficulties of Indian traders and Indian nationals in general in the Tibet region of China.

The Trade Agency at Yatung

2. The lease of the Trade Agency in Yatung only prescribes that permission of the local authorities should be obtained in respect of the construction or reconstruction of the Agency premises. On no occasion has any construction involving extension of the plinth area been undertaken without due notice to the Foreign Bureau. At the same time the Government of India have to state with regret that whenever permission even for small alterations was sought, considerable time elapsed before it was granted. Requests for such minor alterations and repair works were submitted to the local Foreign Bureau on the 1st January, 6th March, 2nd, 8th and 15th April, 1959 but the approval of the Foreign Bureau was conveyed to these requests by Director Hung Fei only on the 11th July, 1959.
On the 2nd April 1959 plans were submitted for rebuilding the quarters of the sweeper. These quarters had been demolished by the fall of a tree. Since the sweeper and his family had no shelter, a reminder was sent on the 15th April saying that presumably there would be no objection to the work of reconstruction being started.
Since no objection was raised by the Foreign Bureau and no reply was received and since the poor family was in miserable plight, reconstruction was started on the 28th April. Thus, it would hardly be correct to say that no intimation was given to the local authorities or that their permission was not sought.

3. On the 23rd July 1958, the Head Assistant of the Trade Agency in Yatung was informed by Mr. Lu Ching Wu of the Foreign Bureau that unauthorised repairs had been undertaken by the Agency. The only works that had been undertaken were fixing glass panes, white-washing and minor repairs. Mr. Lu stated that even for such repairs prior permission had to be obtained. Objection was also taken to the restoration of a boundary wall which had fallen down and to the erection of a fence around a flower and kitchen garden in the agency compound after the melting of the winter snows. It is difficult to understand why even such ordinary maintenance work or minor improvements or restoration in the existing buildings should be subject to the prior approval of the local authorities. The Chinese posts in India are not subjected to such difficulties of interminable delay. In any case, if previous permission is insisted on by the local authorities, the Government of India would urge that expeditious clearance be given in respect of alterations or minor construction and that a more reasonable attitude be taken in respect of ordinary maintenance and repair works.

4. The primary school to which reference is made in the Chinese Government's note was opened soon after the visit of the Indian Prime Minister to Yatung in 1958 with funds presented by the local Indian trading community. The school is located within the Agency premises and is intended exclusively for the benefit of the children of the staff working in the Trade Agency. The total number of such children is less than 25. It would seem extraordinary to prohibit the children of local staff of the Indian Agency from availing of the facilities of this elementary school. The children are of course free to attend a local school elsewhere if they so wish.
Similarly, the doctor and the dispensary attached to the Trade Agency are intended for the members of the Agency staff and their families. Local people from the neighbourhood however often come to the dispensary for treatment of minor ailments. This has been the practice for years. While no encouragement for the use of the Agency dispensary is given to the local people, the Government of India cannot understand why facilities of treatment should be denied to suffering people who choose to visit the dispensary on their own. Such an attitude seems strange and somewhat inhuman. However, the Government of India will abide by the wishes of the local authorities.

5. The Government of India would like to point out in this context that the school supported by the Chinese Trade Agency in Kalimpong enrols Indian children on its roils and no objection bas been taken to this by the Government. The Government of India can only attribute the hesitation of the Chinese Government to some, unaccountable distrust of the elementary school maintained by the Indian Agency, at Yatung. In such matters full reciprocity is desirable.

Courtyard of the Indian Trade Agency in Gyantse
Local Regulations
6. The Chinese Government in their note have referred to the Indian Agencies not respecting local regulations. In fact, except for ad hoc decisions which are conveyed verbally by the local officials in Tibet, no set of regulations for the guidance of foreign representatives in Tibet has been provided. A request for such codified regulations was addressed to the Foreign Bureau in Lhasa in November, 1956 and repeated in Peking in November, 1957. Whenever reminders were given, the reply was received by Indian officials that local laws were changing progressively and no codified regulations existed. It will be appreciated that in the circumstances it is not possible for the Indian posts in Tibet to know what local regulations they are expected to observe. The Government of India emphatically repudiate the allegation that Indian representatives deliberately flout local regulations.

Restrictions on movements and contacts
7.  The Government of India appreciate that regulations which are imposed by the Government of China in the interest of public security have to be followed. At the same time, if Indian representative to discharge their normal functions they should have reasonable freedom of movement and other facilities. A few instances may be quoted in which such facilities were withheld for no apparent reason. Thus the Trade Agent, Yatung, was prevented from going in the Agency car to meet the Indian Trade Agent from Gyantse at Rinchengang. If it was safe for the Trade Agent, Gyantse and his wife to travel to Yatung from Rinchengang, it is difficult to understand why there was any danger in the Trade Agent, Yatung, meeting them at the same place and driving back with them.

8. There are other similar instances of unreasonable and objectionable restrictions imposed on the movement of Indian officials. In February 1959 the Head Assistant of the Indian Agency at Yatung was refused permission to proceed to Rinchengang which is on a recognised route, to meet another official of the agency in Gyantse. In October 1958 the Trade Agent in Yatung was refused permission to accompany Mrs. Jigmie Dorji, the wife of the Prime Minister of Bhutan, on her way back to Gangtok. The last two incidents took place long before the recent disturbances and at that time no emergency security restrictions were in force.

9. In August 1959 the Consul General designate of India while on his way to Lhasa was held up for nearly two hours by the Chinese check-post at Chumbi despite his possessing diplomatic passport. Difficulties also arose in clearing his luggage even though all items had been declared in advance.
On 8th August Shri S. K. Chakrabarti who was returning to India from Lhasa as a courier holding a diplomatic passport was stopped and harassed for a few hours for some unaccountable reason after he had cleared through Chumbi check-post and before he reached Champithang. As recently as 28th September, the Head Assistant at Yatung, despite a properly visaed official passport in his possession, on his way back from Gangtok to Yatung, was compelled to return to Nathula by the Chinese check-post soldiers at Champithang. The Indian Trade Agent at Yatung is not permitted to move beyond a mile of the Agency towards Chumbi and not even a yard on the road towards Lhasa. The Trade Agent in Gyantse is confined to an area approximately two miles on either side of the Agency. The movement of the Indian Consul General in Lhasa is restricted to the Lhasa township. The sentry guard posted outside the Consulate General prevents all people inc1uding even Indian nationals from having access to the Consulate. It may be added that Chinese nationals of the Tibet region are forbidden even to attend cinema shows and purely cultural performances in the Agency or Consulate General.
Indian Wireless station in Gyantse
Cinema shows attended mainly by Indians are frequently organized by the Chinese representatives in India in their own premises and, with permission in public places outside and no exception has ever been taken by the Government of India to attendance at these . shows by. Indian nationals. In India complete freedom of movement and contact with Indian nationals has been allowed to the Chinese representatives. It is hardly necessary to point out that restrictions of the kind mentioned above are not in accordance with the spirit of mutual trust and friendship which is embodied in the 1954 Agreement.

The tour of the Indian Trade Agent in Western Tibet
10. The Sino-Indian Agreement of 1954 envisages a permanent Trade Agency at Gartok in Western Tibet to assist Indian traders and pilgrims visiting the area. No suitable building is locally available on hire at Gartok and despite the efforts of the Government of India…
…Pending availability of suitable accommodation, the Trade Agent therefore endeavours to discharge his functions by a tour lasting about few months during the summer season every year. It has been the traditional practice for decades for the Trade Agent to enter Tibet by the same pass through which he returned from Tibet at the end of the previous season. All his camping equipment is left at the nearest frontier check-posts and thereby the trouble of bringing the equipment down to the plains at the conclusion of every season is saved. The local authorities are clearly aware of the practice and knew that the Indian Trade Agent who had left We-stern Tibet by Niti pass in November 1958 would re-enter by the same pass in 1959. The Ministry of External Affairs had also forwarded his detailed itinerary for 1959 to the Chinese Embassy at New Delhi and specifically requested a visa for the Niti pass in a note dated the 18th May 1959. As a result the Trade Agent's passport duly visaed for the Niti pass was received from the Embassy on the 29th May 1959. If the Chinese authorities were unable to make the necessary security and communication arrangements beyond the Niti pass and wished the Trade Agent to follow a different route, it would have been expected that information to that effect would be given to the Government of India in time so that the Trade Agent could be asked to proceed through Lepulekh pass as subsequently desired by the Chinese authorities. Thereby considerable delay and great personal hardship to the Trade Agent could have been avoided. For want of timely intimation, the Trade Agent had to retrace his journey when he was already nearing the frontier at Niti pass and there was delay of one month in the schedule of his entry into Tibet.

11. Despite the Trade Agent's compliance with the last minute requirement of the Chinese authorities at great personal inconvenience and hardship he was surprised to find after he had arrived at Taklakot through the new route that he could not proceed further since no mechanical transport was available. He was therefore held up at Taklakot for six weeks. The Trade Agent was willing to avail of animal transport, but even this was not provided by the local Chinese' authorities. In the 3rd week of August he was advised to proceed straight to Gargunsa while his destination in accordance with past practice, which must have been well known to the Chinese authorities, was Gartok. Gargunsa is an important Chinese military headquarters but is of little importance from the point of view of the work which the Trade Agent is supposed to do under the 1954 Agreement. Gartok is the most important market in Western Tibet and is also the administrative headquarters for that region. Finally, w hen transport was arranged by the Chinese authorities, the Indian Trade Agent and his staff had to perform the journey of more than a hundred miles from 5 in the morning till a in the evening on the back of an open truck. This lack of consideration for an official of a friendly country who had been sent to Western Tibet to discharge his normal functions in accordance with an international agreement could hardly be regarded as evidence of friendship or co-operation and the Government of India cannot but express their regret at this strange treatment to which their Trade Agent was subjected.

12. The Chinese Government has suggested in their note that the special facilities which they are called upon to provide for the Indian Trade Agent are unique and extraordinary. This suggestion is obviously misleading. As the Chinese Government must be aware, it had been the practice for the Indian Trade Agent in Western Tibet to take his own rifles for the protection of himself and his party during their long journeys across wild and uninhabited regions. He also used to carry his own wireless set in order to be able to-keep in touch with the Government of India. In 1953 however, the Chinese authorities summarily seized the rifles and the wireless set which the then Trade Agent had been carrying and these were returned to him at the Indian border on his return journey. It was only when the Chinese authorities prohibited the Trade Agent from carrying any weapons in self-protection or any wireless set that the Government of India requested the local authorities 10 provide for security guard and a wireless unit for the Indian Trade Agent. It is of course well known that a regular system of postal communication or even of police protection is not available in that area. If now it is the contention of the Chinese Government that they have no responsibility for providing either escort or wireless facility for the Trade Agent, the Government of India would like to know whether they have any objection to the Government of India themselves arranging for these facilities for their Trade Agent. If the Chinese authorities would neither provide these facilities themselves nor permit the Trade Agent to make his own arrangements, it need hardly be said that the Trade Agent' would not be able to discharge his functions and to that extent the corresponding provision in the 1954 Agreement would be rendered nugatory.

13. The Government of India are anxious to sign the lease for a plot of land for the construction of the Trade Agency in Gartok. They are gratified that the lease has now been all but completed. Information has however been received recently that the local authorities in the Tibet region have been insisting that the rent for the leased property will have to be paid in Yuans. This is contrary not merely to the customary practice but to the specific provision in para 2 (v) of the letter of His Excellency the Ambassador of China in India dated the 25th May 1957 which amplified the Trade. Agreement between China and India signed in October 1954.

Couriers and communications
14. The Chinese Government could not be unaware of the fact, that since the disturbances in Tibet the Indian bag service for all the Indian posts in Tibet has remained suspended for months. In the circumstances a special courier permit was requested as early as the 3rd June 1959 for an Indian official Shri Bhupindra Singh to proceed as courier up to Lhasa. Despite this advance request he had to wait for 18 days at Yatung before any transport was provided for him. It is understood, however, that all this time there was official Chinese transport plying between Yatung and Lhasa. Somewhat earlier than this an Indian engineer who was proceeding to Gyantse in connection with the construction work of the Indian Agency premises there was held up for three weeks for lack of transport. Since officially-owned transport of the Government of India cannot be permitted to ply to Lhasa on courier duty and since private transport is not available on hire, the Indian posts have not rely entirely on the assistance of the local authorities in securing transport. On all occasions Indian couriers are required to sit at the back of trucks and make themselves as comfortable as they can. It appears from the manner in which requests for transport were ultimately complied with that the local authorities were completely indifferent to the requirements of the Government of India and the hardships which are imposed on their staff.

15. It is true that the Chinese authorities had asked the Government of India to discontinue the existing messenger system in 1955. It will be recalled. however, that the road for use of mechanical transport between Lhasa and Yatung was completed only in 1956. In 1957, a detailed scheme for a jeep courier system in replacement of the old messenger system was worked out by the Government of India and requests were made to the Chinese authorities in Lhasa first verbally and then in writing to agree to this arrangement. The Chinese authorities, however, were not prepared to permit the Government of India to run their own jeeps even for the exclusive purpose of carrying official mails and bags to the Indian pools. It was only in these circumstances that the existing system had to be continued but this was done with the full knowledge and authorisation of the local authorities in Tibet. It may be observed' that Article 1 of the Sino-Indian Agreement gives to both the sides the privileges of communication through couriers and of despatch of mail bags containing official communications. Para 7 of the notes exchanged at Peking at the time of conclusion of the Sino-Indian Agreement provides that the Trade Agent may hire employees locally. Thus the continuance of the messenger system with local personnel, pending the institution of modern courier system, is fully in consonance with and in no way contrary to the 1954 Agreement.

16. Nevertheless in view of the objection of the Chinese Government the Government of India are agreeable in principle to start a courier system with Indian couriers which would use transport provided by the Chinese authorities. Such a system will be feasible only if suitable mechanical transport is made available by the Chinese authorities regularly and at reasonable rates. For the safety of bags it may also be necessary to provide transport for the exclusive use of the Indian couriers. Detailed arrangements involved in the system are now being worked out and will be communicated to the Chinese authorities shortly.

17. The attention of the Chinese Government has already been drawn to instances in which the bags of Indian Government were opened while they were handled by the local postal authorities. It will also be recalled that four cases of baby food for the infant child of the Consul General were handed over by the Trade Agent in Gyantse for onward despatch to Lhasa in April. 1959. They were kept for over a month in the sub-office of the Foreign Bureau and there alter returned to the Trade Agent on the plea that no transport was available Finally the food for the child was delivered to the previous Consul General through the local authorities in August, a few days before Consul General left on transfer. The bags, urgent supplies etc., which had accumulated for over 4 months at Yatung were transported by the special courier (Shri Bhupindra Singh) who proceeded to Lhasa in June this year.
With regard to the suggestion to use the local postal facilities, it may be stated that letters sent through the local post office have taken as much as a month between Yatung on the one hand and Phari and Gyantse on the other, when in fact the journey can be performed in one or two days. Ordinary letters from India to Lhasa through Tibetan postal channels have taken even longer. In contrast under the messenger system (which is dependent on animal transport) official bags only took four days from Gangtok to Gyantse.

18. It is also reported that telegrams for despatch are only accepted in Yatung and Gyantse on a days in the week; no telegrams are accepted in Lhasa on Monday and in all cases no telegrams can be sent except during certain fixed hours. On the 6th July, the Indian Trade Agency, Gyantse gave details to local authorities of three specific cases where telegrams were delayed in transmission or never delivered at all. A telegram from Delhi marked Most Immediate was despatched on 3rd, reached Gyantse on 4th and was actually delivered to the Agency on the 6th September.

19. While no reflection on the Chinese Postal Department is intended, it will be dear from the above instances that the normal post and telegraphs facilities are not sufficiently developed in the Tibet region. The Government of India are only interested in ensuring that official communications to and from them reach their posts in Tibet in safety and without delay.

20. The Government of India deplore the arbitrary action of the 'Chinese authorities in stopping the messenger system through which .official communications had hitherto been maintained between India and the Indian trade posts and the Consulate General in Tibet. So far as the Government of India are aware, the system has never been 'misused and even though the messengers were local people, at no time could any exception be taken to their conduct. In accordance with international usage facilities must be given to a foreign representative to keep himself in touch with his Government. The facility 'of a bag service is well recognised and this was specifically provided in the 1954 Agreement. In fact, as the Chinese Government are aware Government of India have been very generous in giving courier permits to the Chinese representatives and as many as 38 Chinese couriers hold multi-entry Indian visas for movement between India and China. It is particularly regrettable, therefore, that before an alternative system with Indian couriers could be worked out, the Government of India should have been deprived by the Chinese Government of the facilities of communication with the Indian posts in Tibet. The bag service to the Indian posts in Gyantse and Lhasa has' remained suspended since July. The difficulties of these posts for lack of suitable bag facilities can well be imagined.

21. The statement of the Chinese Government's note that the Government of India have been maintaining wireless sets in their agencies in Tibet in an unauthorised manner is hardly in consonance with facts. It will be recalled that as early as September 1955 the Chinese Government agreed in principle to the retention of the Indian wireless links at Lhasa, Gartok and either Gyantse or Yatung on a reciprocal basis. Details were being worked out when suddenly, in September, 1957, the Chinese check-post at Yatung summarily seized some .essential parts required for repairing the wireless set of the Trade Agency at Gyantse. This seizure was not even intimated to the Indian Trade Agent, Yatung and only later when enquiries were made by mm was he informed of the detention of the equipment. This, was justified by the local authorities on the ground that it was a prohibited item of import. The seized equipment has not yet been released.
However, in March this year the Government of India made a comprehensive proposal to the Chinese Government for establishment of wireless sets on a reciprocal basis by Indian posts in China and Chinese posts in India. No agreement to these proposals has yet been received from the Chinese Government. In these circumstances, to say that wireless stations are being maintained by the Indian posts in an unauthorised manner does not present the facts of the situation correctly.


22. The Government of India find no pleasure in enumerating the facts given in the foregoing paragraphs. Facts have however to be stated clearly to contrast the treatment accorded by the Chinese authorities to Indian trade posts in Tibet with the facilities and privileges enjoyed by corresponding Chinese posts in India. The Government of India have to say with regret that repeated requests from their representatives in the Tibet region for the minimum facilities of transport, communication and accommodation have not been dealt with by the local authorities in the Tibet region with the sympathy and attention which are due to the representative of a friendly country. They would also like to state that unless these facilities are forthcoming the Indian posts in Tibet cannot function with dignity and discharge the responsibilities intended for them under the Sino-Indian Agreement of 1954.

23. The Government of India take the opportunity of renewing to the Embassy of the People's Republic of China, the assurances of their highest consideration.

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