A Rundown on Diplomatic Immunity under International Law

Diplomatic immunity is an old and established principle in International Law. It limits the degree to which the officials and employees of foreign governments would be subject to the other country’s authority of police officers and judges. This article aims to give an overview of the evolution and kinds of diplomatic immunity. It also examines the exceptions to these immunities and also its waiver. There are several fundamental principles upon which diplomatic immunity rests and this article would be throwing light on this aspect as well.

Introduction

Israel’s Embassy in India will soon have a separate ‘Water Attache’ from January 2021 to help share Israel’s best practises and innovations for developments in the water and agriculture sectors of India. In the North-East, Israel will also appoint an ‘honorary consul’ to increase its presence and collaboration in that area.

There is often an exchange of diplomats for better cooperation and mutual support between States and the wide immunities they hold when they go to any other country are a fascinating feature about diplomats. It is often regarded as a mark of honour for a foreign diplomat and confidence in the country to which he/she belongs to.  Many theories have been laid down about these immunities and provisions for waiver of these immunities have also been granted. The principles governing diplomatic immunities are among the most ancient and universally recognised rules of International Law. 

Evolution of Diplomatic Immunities

The word ‘diplomat’ has originated from the French word ‘diplomate’ which denotes a person whose role is to represent his country in the receiving country and to negotiate on behalf of his State further. Both domestically and abroad, diplomats possess a very unique status. From the Mediterranean region, China, the Middle East, and India, early historians trace the roots of this idea of diplomacy.

The origin of diplomatic relations can be traced back to many ancient civilisations. The roots of diplomatic relations and the idea of diplomacy in India can be traced back to the 4th century BC period. A major source of early Indian diplomatic history is Arthashastra, written by the great Sanskrit scholar Kautilya. The rules relating to diplomacy are also included in Manusmriti.

Over the years, the growth of the principle of diplomatic immunity contributed to the evolution of the Vienna Convention, which gradually became a universal Convention and clearly defined the advancement of customs into settled law through its provisions. Vienna was the first meeting place for diplomatic agents in 1815. The first international attempt was made in 1895 through the Draft Convention of the Institute of International Law to codify the laws of diplomatic immunity. This resolution postulated that diplomats enjoyed extraterritoriality although this extraterritoriality was curtailed in 1929.

In international law, the Vienna Convention has emerged as an integral instrument that lays down the rules and other different aspects of diplomatic conduct and regulates around the world and is regarded as a frame of reference when dealing with or investigating the notion of diplomatic immunity.

Basis of Diplomatic Immunities

The opinions of international jurists on the grounds of the granting of immunity to diplomatic agents are varied. Their views have led to three distinct theories emerging, which are as follows: –

1.     Extra-territorial Theory

This principle of international law exempts from the jurisdiction of the host country certain diplomatic bodies and agencies working in a foreign country. It also notes that the laws of their native countries remain applicable to these diplomatic individuals/agencies. Pierre Ayraut, the French legal theorist and jurist, suggested the idea of extraterritoriality theory. As stated by him certain persons and things, while within the territory of a foreign sovereign; remained outside the reach of the local judicial process”. It is also called ‘fictional theory’ since extra-territoriality is merely based on fiction.

2.     Representational Theory

Diplomatic agents are considered, according to this theory, to be agents or personal representatives of the sovereigns of the sending states. Therefore, the same standard of rights that are granted to a prince or the sovereign is granted to them as well. In the case of Bergman v. De Sieyes[1], the District Court of New York ruled that on the basis that he is a representative of his sovereign, a foreign minister is immune from the jurisdiction in the country to which he is accredited. This theory, however, is subject to criticism in the sense that the extension of sovereign immunities to diplomatic agents is by no means rational. Accordingly, except in the most general way, the courts have not acknowledged the parallel between sovereign and diplomatic immunities.

Functional Theory

This theory establishes that immunities and privileges are granted to diplomatic agents because of the uniqueness of their duties. The duties that diplomatic agents are expected to perform are far from simple in certain cases. The conventional duties that diplomatic agents are expected to perform have made it necessary to provide immunity and privileges to them. If the immunities are not granted or if they are held at the mercy of interruptions that could be caused by an unscrupulous misuse of the local administration’s powers in his mission, it could be difficult for them to perform their duties. Functional theory, therefore, relies upon practical necessity.

The foundation of granting immunities is a blend of theories of representational and functional nature. Typically, the extra-territorial theory is discarded. Apart from these major theories, there is another theory that believes in returning favours granted by a State. “This is the theory of reciprocity which states that the favours, penalties, and benefits which are granted by one State to the citizens or diplomatic agencies of another state should be returned with dignity and kindness. Like in many previous instances, reciprocity has been used in the reduction of tariffs, relaxation of visa requirements, travel restrictions, etc.”[2]

Immunities and Privileges

The Vienna Convention of 1961 lays down the different immunities and privileges laid down for diplomatic agents. They are as follows: –

Inviolability of Diplomatic Agents

The Vienna Convention under Article 29 dictates that ‘the person of a diplomatic agent shall be inviolable. He shall not be held liable for any arrest or detention. The host state should give proper respect and shall take all relevant steps to prevent any attack on his persons, dignity or freedom.’ The receiving State may arrest or detain the diplomatic agents in exceptional cases. If a diplomatic envoy commits an act of violence which disturbs the internal order of the receiving State in such a way that it is appropriate to put him in a position of restraint to prevent similar actions, or if he colludes against the host country and the attempt can only be made harmless by putting him in a position of restraint, he may be detained for some time even though he must be sent back to his country within a reasonable time.

In addition to the head of the mission, immunities are also provided to the members of the mission staff, as specified in Article 1 of the Vienna Convention, such as diplomatic staff, administrative and technical staff and service staff. Concerning immunities, paragraph 2 of Article 37 of the Vienna Convention specifies that members of the administrative and technical staff of the mission, together with members of their families who are part of their respective households, shall enjoy the rights and immunities referred to in Articles 29 to 35 if they are not citizens of or permanently resident in the receiving State except that the immunity referred to in para 1 of Article 31 from the civil and administrative jurisdiction of the receiving State does not apply to actions carried out beyond the discharge of their duties.

Inviolability of Premises

A permanent diplomatic mission requires premises to function from, and the receiving State must assist the sending State in securing premises for the mission. There is a right to use, and thus clearly recognise, the flag and emblem of the sending State on the premises of the mission. The inviolability of such premises has long been acknowledged by customary international law.

Under Article 22, the Vienna Convention provides for the customary rule of international law by specifying that ‘the mission premises shall be inviolable.’ Article 30 ensures that a diplomatic agent’s private residence enjoys the same inviolability and security as the mission premises. They cannot be accessed by agents of the receiving States, except with the permission of the mission head. Nowadays, the inviolability of diplomatic premises requires their intractability, without the permission of the head of mission, to agents of the receiving State, such as judicial officers, police or revenue officers.

The International Court of Justice upheld the principle of the inviolability of the premises of the diplomatic mission in the case concerning the United States Diplomatic and Consular Staff in Tehran[3]. The court held:

“The fundamental character of the principle of the inviolability is, moreover, strongly underlined by the provisions of Article 44 and 45 of the Convention of 1961. Even the case of armed conflict, or in the case of a breach in diplomatic relations those provisions require that both the inviolability of the members of a diplomatic mission and the premises, property and archives of the mission must be respected by the receiving State.”

Immunity from the Local Jurisdiction

Diplomatic officers enjoy immunity from the local courts’ jurisdiction. The privilege applies to both civil and administrative authority and criminal jurisdiction.

(a)   Criminal Jurisdiction

Article 31 Para 1 of the Vienna Convention provides that a ‘diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State’. There are no exceptions to the immunity from the criminal jurisdiction of a diplomat. Therefore, receiving states have no power to prosecute and discipline diplomatic agents under any situations whatsoever. This does not, however, suggest in any way that a diplomatic agent has the right to do whatever he wishes. The rights enjoyed by him assume that he behaves and conducts in such a way that it harmonises with the internal order of the receiving State, whose rules and regulations he is obliged to comply with. The receiving State shall if he acts or behaves otherwise, order his recall or fire him at once.

In this respect, there are many incidences. One such incident was Sultan Mehmud Dehdar’s (First Secretary of the Afghan Embassy) involvement in criminal trespass and exposure to an incident in Delhi in 1995, following which the Embassy fired him and deported him back to Afghanistan.

(b)   Civil and Administrative Jurisdiction

A well-established notion of International Law is that diplomatic agents are immune from the civil and administrative authority. No legal proceedings of any sort may be brought against them in the civil courts of the receiving State concerning debts and the like. They can not be arrested for debts, nor can debts be confiscated on their furniture, their vehicles, and the like. They cannot be stopped from leaving the country because their debts have not been settled, nor can their passports be denied to them on that basis.  The Vienna Convention lays down the same in Article 31 Para 1. The Convention does, however, define cases in which immunity from the exercise of the civil and administrative authority is not applicable. These exceptions apply to actions relating to: –

  • Private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the mission.
  • Succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State.
  • Any private professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.[4]

Immunity from giving witnesses

In the civil, criminal, or administrative code of the state to which they are accredited, diplomatic agents are immune from being submitted as witnesses. Article 31(2) of the Vienna Convention states that, in any event, a diplomatic agent is under no duty to provide any testimony as a witness. However, after waiving their immunity, they can appear before the courts.

Immunity from Taxes and Customs Duties

According to Article 34 of the Vienna Convention, 1961, diplomatic agents shall be excluded from all duties and taxes, whether personal or actual, national, regional or municipal.

Article 36 of the Vienna Convention specifies that the receiving State shall allow the entry and grant of an exemption from all customs duties, taxes and related charges other than storage, carriage and similar charges, in compliance with such laws and regulations as it may adopt, on:

  • Articles for the official use of the mission;
  • Articles for the personal use of a diplomatic agent or members of the family forming a part of his household, including articles intended for his establishment.

Immunity from Inspection of Personal Baggage

A diplomatic bag is used in a diplomatic mission to send letters, documents and articles abroad to the receiving States or other missions of its States. Article 27(3) of the Vienna Convention of 1961 specifies that an envoy’s diplomatic bag must not be opened or detained. While this is a general rule, his baggage may be examined if there are serious grounds for presuming that it contains articles which do not fall within the scope of that exemption, or if imports of the articles in question are prohibited or subject to the quarantine laws of the receiving State referred to in Article 36 Para 2.

Freedom of Communication

Diplomatic agents are free to communicate any information to the state for which they are authorised for official purposes. Article 27 of the Vienna Convention specifies that the use of couriers and code messages is included in the freedom of communication. The inviolability of the diplomatic bag is also reaffirmed in the Vienna Convention via the Article referred above.

Freedom of Movement and Travel 

Following Article 26 of the Vienna Convention, diplomatic agents are free to pass and travel within the territory of the host state. However, this is subject to the laws and regulations rendered about the prohibited security zone by the receiving States.

Right to Worship

Diplomatic agents have a right inside the premises to worship whichever religion they wish. They cannot, however, invite the nationals of the receiving State to join in the worship. In other words, in the receiving State, they have no right to preach their faith.

Immunity from Social Security Provisions

Under Article 33 of the Vienna Convention, for services provided to the sending State, a diplomatic agent shall be exempted from the social security laws which may be in effect in the receiving State.

Immunity from Local and Military obligations

Following Article 35 of the Vienna Convention, diplomatic agents shall be exempted from the local and military responsibilities of the receiving State to which they are accredited, such as those relating to the need to make military contributions.

The claim of Diplomatic Immunity for a Foreign Sovereign

The question of granting diplomatic immunity to a foreign sovereign was settled in the 19th-century case of Mighell v. Sultan of Johore[5]. The foreign sovereign was the Sultan of Johore, a State in the Malay Peninsula. The sovereign status of a Sultan was an issue in one of the suits in England when Ms Mighell sued the Sultan of Johore, who was travelling incognito in the State of the United Kingdom, for breach of promise of marriage. A vital question was whether the Sultan would be granted diplomatic immunity based on being an ‘independent sovereign’ or not.

The Court granted an “independent sovereign” immunity from its jurisdiction to the Sultan. The conclusion was based on a letter from the Secretary of State for the Colonies claiming that “[the Sultan] usually exercises the ordinary characteristics of a sovereign ruler without any doubt.” This further shows the British recognition of the Sultanate of Johore, as an autonomous and independent State.

The idea has therefore been established that a foreign sovereign should be regarded as an independent sovereign and should therefore be immune from the local jurisdiction.

Waiver of Diplomatic Immunity

To track the misuse of immunities and rights, a law was made regarding the waiver of immunities. It has always been agreed that the sending state may waive immunity from jurisdiction. Under Article 32(3), which provides that the initiation of proceedings by a diplomatic agent shall prohibit him from invoking immunity from jurisdiction in respect of any counter-claim directly linked to the main claim, a diplomatic agent can waive his immunity himself. Furthermore, Paragraph 4 of Article 32 provides that the waiver of immunity from civil or administrative authority does not mean a waiver in respect of the execution of a judgement which requires a separate waiver.

Fundamental Principles associated with Diplomatic Immunity

Exemptions and Immunity from State Jurisdiction

Jurisdictional immunity states that it is not possible to bring before the courts, individuals with diplomatic immunity for charges of any illegal actions or crimes committed while in the State in which they were accredited during the time in which they were engaged in that mission. Whether civil, criminal, or administrative, this applies to all jurisdictions. Therefore, in the local courts, a diplomatic envoy who performs an illegal act in the state in which he is accredited for a diplomatic mission will not be punished.

Principle of Non-Interference

The non-interference principle states that the Sovereign State shall not intervene in the internal affairs of each other. It is the common principle of contemporary international law that the basis of non-interference in the internal affairs of each other is the duty of “respect for the sovereignty of the State and territorial integration,” which, concerning their rights and obligations, further regulates the relations between States. It is also deemed as a general rule of International law in conformity with the objectives and principles of the UN charter.

Principle of Personal Inviolability

The principle of personal inviolability is a very old established rule of diplomatic law which is very closely related to the notion of diplomatic immunity. Article 29 of the Vienna Convention stipulates that “a diplomatic envoy shall not be liable to any form of arrest or detention and the receiving state shall give him due respect or care and shall take all the necessary steps to prevent any attack on him, his dignity or freedom”.

The doctrine of Restricted Sovereign Immunity

The growing participation of States in the activities of World Trade has led to the development of a more restrictive approach to State immunity, where a distinction is drawn between acts of a foreign sovereign nature (acta jure imperii) and acts of a commercial nature (acta jure gestionis). Per this restrictive approach, immunity is only available for acts resulting from the exercise of sovereign authority. As such, the States may not assert immunity in respect of commercial activities or commercial assets.

Absolute Immunity or Reciprocity

In a decentralised framework of public international law, where there is no overarching legal authority to define, adjudicate, or implement all international laws, the reciprocity principle plays a prominent role. The concept or rule of reciprocity in international relations implies the establishment of an atmosphere in which states, in a mutual relationship, assist and support each other for a specific, short or long-term gain through a balance of their rights, interests and obligations.

Conclusion

A very well-established concept in international law is that of diplomatic immunity. Diplomacy is a basic reality of international relations, without which there would be a danger to international life. For the promotion of cordial and effective ties between states, whether for commerce, defence, peace or cultural relations, the principle of Diplomatic Immunity is very essential. The Vienna Convention is recognised as the United Nations’ key pillar of progress. Through this, diplomats are granted immunity to be the agent of the Head of State to efficiently fulfil their duties. Although all the privileges and immunities given to diplomats are not absolute, they can be undermined by several exceptions.

Frequently Asked Questions

  1. What are the different kinds of diplomatic agents?

Ans: According to Article 14 of the Vienna Convention, 1961 there are 3 kinds of diplomatic agents, they are: –

  1. Ambassadors: They are considered to be the representatives of the head of their States and enjoy special honours and title of excellency.
  2. Minister Pleni-Potentiary or Envoy Extraordinary: They are not personal representatives of the head of their States and do not receive special honours as that of ambassadors. Functions are practically the same.
  3. Charge d’ Affairs: They are accredited by a foreign office to a foreign office and not by the head of the State.
  • What are the basic functions of a diplomatic agent?

Ans: As per Article 3 of the Vienna Convention of 1961, there are 5 basic functions of a diplomatic agent.

  1. Representation of sending State
  2. Protection of the interests of the sending State
  3. Negotiation between both sending and receiving States
  4. Observation and submission of periodical reports
  5. Promotion of cordial relationships

Assessment Questions

  1. Who propounded the extra-territoriality theory?
  2. Is a foreign sovereign entitled to diplomatic immunity?
  3. How can diplomatic immunity be waived?
  4. What are the different types of diplomatic immunities?
  5. Does diplomatic immunity persist even during an armed conflict?

References


[1] Bergman v. De Sieyes 71 F.Supp. 334 [1946].

[2]https://blog.ipleaders.in/diplomatic-immunity-everything-important-you-should-know-about/#Evolution_of_Principle_of_Diplomatic_Immunity.

[3] United States Diplomatic and Consular Staff in Tehran (United States of America v. Islamic Republic of Iran), Judgment, 1980 ICJ Rep.1 (Nov. 29).

[4] H.O.Agarwal, International Law & Human Rights 311-324( 22 ed. Central Law Publications 2019).

[5] Mighell v. Sultan of Johore 1 Q.B. 149 [1894].

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