Diplomatic Immunity – A Need of an Hour

Introduction

The concept of diplomatic immunity is an ancient concept based on mutual understanding and respect between the states. The concept dates back to the time when messengers were sent by rulers to each other for the purpose such as maintenance of peace, declaration of war or to resolve some national issues.

The concept has strengthened over time to promote healthy international relations between states where one state and representative of another state argue and negotiate upon certain issues.

Vienna Convention of 1961 provides the concept of law on this immunity. Vienna convention works as an essential tool and provides the rules and other aspects of diplomatic conduct and control and is used as a reference when dealing with or examining this concept.

Meaning of Diplomatic immunity

Diplomatic immunity is that principle which limits the degree to which representatives of a country would be subject to the authority of another country where they are carrying out work assigned to them. It basically means that the diplomats are immune from prosecution in the receiving state.

Meaning of Diplomatic Agents

Before understanding the concept of diplomatic immunity in deep, we must know who are diplomatic agents. The word diplomat’ has been derived from the french word ‘diplomate’. They are government representatives who are sent to live and work in another country and serve as an intermediary link between two states. Diplomats enjoy a special status in both receiving state and homeland. Diplomatic agents are classified into 3 categories namely:

  • Ambassadors- the personal representatives of the Head of the State who claim the “title of Excellency” and enjoy special honour
  • Ministers and envoys- do not enjoy privileged treatment
  • Charges D’affairs- dispatched by the foreign office may be permanently or temporarily. They are mostly appointed in case of a newly recognised government after civil war or revolution.

Diplomatic agents have certain functions to perform in the receiving state, which are

  1. Representation of the home state
  2. Protection of home state from various threats by the receiving country
  3. Negotiation on issues regarding both states
  4. Observation of working in the receiving state and informing the same to home state
  5. Promotion of friendly relations
Immunities and Privileges enjoyed by diplomats

Vienna Convention of 1961 lays down privileges and immunities enjoyed by the diplomatic agents.

  1. Inviolability of diplomatic agents– Article 29 of the Vienna Convention states that a diplomatic agent is immune from arrest or detention.
  2. Inviolability of premises– A permanent diplomatic mission needs premises from where the operation can be carried out. The receiving state should provide for such premises and take care that none of its authority or official enters the premises without the permission of the Head of the mission.
  3. Immunity from local jurisdiction– Diplomatic agents is immune from local jurisdiction of Courts of receiving state in matters like a criminal, civil or administrative.
  4. Immunity from being a witness– Article 31(2) of the Vienna Convention provides that diplomatic agents are not under any obligation to be presented as a witness in any case.
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  6. Immunity from taxes and customs duties– Article 34 of the Convention exempts diplomatic agents from all kinds of duties and taxes imposed whether national, regional, municipal, personal or real.
  7. Immunity from inspection of baggage– The Convention under its Article 27 provides that the diplomatic bag of the envoys shall not be opened or detained. The diplomatic bag is one which is used to carry letters or documents or any article from one state to another. The personal baggage of an agent can be opened and inspected by a customs official in presence of the agents, only when there are serious grounds for suspicion.
  8. Freedom of communication– The diplomatic agents are free to use any codes or messages for purpose of communication with the state whom he is serving.
  9. Freedom of movement and travel– Article 26 empowers the agents to move freely in the territory of the receiving state but in doing so, they must take care of the rules and regulations of the state regarding the prohibited zones.
  10. Right to worship– The agents are free to worship the religion of their choice but they can’t preach the same in the receiving state.
  11. Immunity from local and military applications– Article 35 of the Convention exempts the diplomatic agents from local or military obligations of the receiving state.
Principle of persona non grata

Article 9 of the Vienna Convention provides that the receiving state may declare at any time, the diplomatic agent as persona non grata if he abuses or violates the immunities available to him; he can be expelled by the receiving state without explaining the reasons for doing so. The term “persona non grata” means an unwelcome or unacceptable person. Such declaration results in the non-recognition of the person as a representative of the sending state in the eyes of the receiving state. The reasons for expulsion can be:

  • The diplomat has shown inappropriate or antisocial behaviour
  • There has been misuse or abuse of immunity and privilege to commit a criminal act
  • He has acted in an aggressive manner risking the security of the state
  • To take revenge or put pressure on sending state for the negotiation
Conclusion

Diplomacy is the foundation for the existence of international life. And the concept of diplomatic immunity strengthens that foundation by promoting friendly relations among the states. Vienna Convention is the major source that provides all the laws and rules in this regard. The immunities and privileges with the diplomats, although not absolute, help them in carrying out their functions in an effective manner. It is also a medium of showing respect to each other.

Also Read: Right to Asylum and Kinds of Asylum

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