Diplomatic Immunities

Introduction:

Diplomatic Immunity is a principle of International Law that shields the foreign government officials and employees of an international organization from the authorities and jurisdiction of foreign states where they are assigned duties. It plays a very important role in establishing international relations and these diplomatic officials acting in the state’s favour build a peaceful international environment. Generally, such acts of diplomacy are carried forward by officials like the head of state, government or minister of Foreign Relation and diplomatic agents. But diplomatic immunity does not mean that all these agents with any act done by them in the foreign countries and an important factor that needs to be kept in mind is that all foreign government officials or international officials do not come under the diplomatic immunity and there are categories which have different rules apply.

Historic Evolution of Diplomatic Immunities

The term ‘Diplomat’ has come up from the French word  ‘diplomate’ which essentially referred to people who were representatives of a state and carried forward negotiations on their behalf. Diplomatic immunity as a concept is deeply rooted in international law and that it had its origin with the practice of diplomacy.

India

In India, the evolution of diplomatic immunity can be traced back to the 4^th century BC. There has been mention of diplomatic rules in the ‘Arthashastra’ written by Kautilya who had his methodology explain in four simple points. He believed that relations could be established through persuasion, gifts, threat and force i.e saam-daam-danda-bheda. Apart from this a lot of India’s Diplomatic history can be understood through the works of the Mauryan Empire. All these were the largest established Dynasties of history and had their own methods. Apart, from kingdoms and dynasties the Vedic Hindu code, Manusmriti also has its set of rules which say that they should be given shelter, food and must be respected. All these events form the history of diplomacy in India.

International

The historian believes that diplomacy has its origin in regions like the Middle East, India, China and the Mediterranean. The importance of Diplomats and rules for their immunity is also there in ancient legal systems. In Ancient Greece, these ambassadors were seen to be ‘messenger of god’ and so held a very sacred position. It was considered that violation against any of these ambassadors could be an offensive step against god. Something similar was practised in Ancient Rome and they also gave a special position to these envoys making them inviolable.

Another case in 16^th century England was the Mendoza case where a Spanish Diplomat was accused of criminal conspiracy. In the end of the case, the ambassador was expelled but rules were set that the diplomat would enjoy immunity from criminal jurisdiction with the exception that the state had the right that it takes for self-defence against violent acts of the diplomat. There were a number discussions amongst learned publicist on the deciding factors of diplomatic immunity and privileges which also led to the formulation of various theories which form the bases of rules of diplomatic privileges.  

Theories Of Diplomatic Immunity

Extraterritoriality Theory

This theory was established by a French jurist and theorist Pierre Ayraut. According to this theory, certain diplomatic persons in international law operating in a foreign country are exempted from the jurisdiction of the host country. Though these diplomats remain accountable in accordance with the laws of the native country.

Representative Character Theory

This theory states that the representatives of other states should be dealt in the manner that the host state would have with the sovereign state itself. This means that the representatives or ambassadors have to be treated in the same way as the Presidential representatives by the receiving state to make sure they are not subjected to the receiving state’s jurisdiction. In simple terms, it should be understood that any attack against these diplomatic agents is an attack against the sovereign state itself.

Functional Necessity Theory

The basis of this theory is the belief that if diplomatic agents are protected or shielded from any kind of jurisdiction in a foreign country, they are able to function more successfully and meet their aim. The Preamble of Vienna Convention also mentions that immunity to diplomats help them complete their missions more effectively and thus makes this theory a fundamental principle of diplomatic laws.

Reciprocity Theory

The main point of reciprocity theory is that all the privileges, benefits or penalties that are provided by one state to the other have to be returned with the same respect and kindness. The implementation of this theory is in the form of a reduction in trade tariffs or ease in visa formalities that takes place between states.

International Peace Theory

This theory was explained by Immanuel Kant in the 18^th Century where he claimed that democratic states have managed to establish peace amongst themselves at an international level rather than engaging in wars or other violent conflicts. Rather they take steps or engage in wars against non-democratic states. This is a result of the establishment of diplomatic relations and negotiations under different states.

Codification of Diplomatic Immunity

The existing importance of diplomatic relations and various aspects of diplomatic immunity led to the formulation of the Vienna Convention on Diplomatic Relations in 1961 and the Vienna Convention on Consular Relations in 1963. The first attempt for codification in terms of diplomatic immunity on the international level was made by the Congress of Vienna in 1815. The Regulation on the Classification of Diplomatic Agents was adopted as a part of the Final Act of Congress.

But the idea of codification of international laws on diplomatic immunity were pushed after the creation of the United Nations. In an International Law Commission, 14 topics were identified for which codified laws were to be formed and one of them was ‘diplomatic intercourse and immunities. The Commission started working in 1955 and created a draft of the convention. It was on 18^th April 1961 that the Vienna Convention on Diplomatic Relations was adopted at a UN Conference in Vienna. In 1963, the Vienna Convention on Consular Relations was adopted in a similar UN conference with the aim to provide privileges and immunity to consular officials as well. The Convention basically lays down major functions of consular including its limitation in International law and provides that consular officers can not be put under jurisdiction for acts done in the purview of their consular functioning.

Different Diplomatic Agents

Ambassadors

Article 1 of the Congress of Vienna 1815 has differentiated the diplomatic officials into three types.

Ambassadors are considered to be representatives of the Head of their states and are given special honour including the ‘Title of Excellency’. The ambassadors are generally appointed with the consent of the host state and such ambassadors are called high commissioners in commonwealth states. They carry a letter of credence to the host state which is provided by the head of the sending state.

Ministers & Envoys

The ministers and envoys do not get the special honour and titles as the ambassadors get because they are not considered to be the personnel representatives of the head of the State but apart from that the ambassadors and ministers & envoys do not have any such major difference.

Charges D’ Affairs

These officials are sent from foreign office of one state to another and are not sent by the Head of the State. They may be appointed on a permanent or temporary basis but do not get the honor or titles to other agents. Generally, a Charges D’ Affair is placed in states who have a newly recognized government after a civil war or conflict.

Immunities & Privileges Under Convention

Inviolability

Article 29 of the Vienna Convention says that diplomatic agents would be inviolable. They can be arrested or put under detention. All necessary steps should be taken for respectful treatment of the diplomat and prevention of any attack on their freedom or dignity.

Inviolability of Premises

Article 22 under the Vienna Convention states that the premises from where a diplomatic mission is operated is inviolable. Without the consent of the head of the mission, no official or agent of the receiving state can enter the premises of the mission. Also, it is the responsibility of the receiving state to provide a premise for the mission.

Immunity from Local Jurisdiction & giving Witnesses

The diplomats have immunity from any kind of jurisdiction local courts which includes criminal, civil or administrative jurisdiction. Also,  Article 31(2) provides that the diplomatic agents do not have to provide evidence as a witness in any case. They have the immunity to be a witness in a civil, criminal or administrative matter in the state where they are present.

Immunity from Taxes and Customs Duties & Right to Worship

The diplomatic agents under Article 34 of the Vienna Convention are exempted from any personnel, national, regional or municipal taxes or duties that are imposed on them. Also, they can practice any religion in their own premise but cannot preach the religion in the receiving state.

Freedom of Communication & Movement and Travel

Article 27 of the Vienna Convention states that the foreign diplomats have the freedom to communicate with their state for any information. This freedom of communication also includes communication through couriers or code language. Article 26 of the same Convention also states that the diplomats are free to travel in any part of the host state provided they adhere to the rules of the receiving state that have been made for security purposes.

Immunity from Inspection of Personal Baggage

Article 27 of the Vienna Convention states that the diplomatic bag of an envoy cannot be opened or detained. The general practice followed along with this was an exemption of custom inspection for diplomat’s personnel luggage. But with the restriction that it can be inspected in presence of the diplomat if there is a requirement or suspicion of unofficial things involved.

Immunity from Local and Military Applications

In the Vienna Convention, Article 35 states that diplomats are exempted from any obligation towards the locals and military of the receiving state where they are put up.

Some Fundamental Principles of Diplomatic Immunity

Principle of Non-interference

This principle states that there shall be no interference by a Sovereign State in the internal matters of other states. This principle is a common one that tends to safeguard the sovereignty and territorial integrity of a state and it also sometimes becomes the governing factor of relations between states. It is a general principle in International law and has been referred to in the UN Charter also. 

Doctrine of Restricted Sovereignty

The emergence of this doctrine is proportionate to each state’s increasing involvement in World Trade. In the state, immunity differentiation needs to be drawn in acts that have a foreign sovereign nature (acta jure imperii) and commercial nature (acta jure gestionis). There has been a restrictive approach to state immunity, where immunity is available against acts that are exercised as sovereign function and not over commercial acts or assets.

Provisions on Diplomatic Immunity in India

In India, The Diplomatic Relations (Vienna Convention) Act, 1972 was enacted on 29^th August 1972 whose application extended to all parts of the country. This Act was the 43^rd Act of the year and it was mentioned that it was enforced on the basis of the Vienna Convention on Diplomatic Relations but the Central Government has the authority to make amendments in the Schedule and inform about the same through Official Gazette.

The Schedule states, that from the Vienna Convention the following Articles would be laws enforceable in the country, The Article 1, Article 22-24 and Article 27-40. Also, the Act states about restrictions on the immunity provided under the Convention wherein if Central Government feels that the party to Vienna Convention has breached an obligation then it can communicate through Official Gazette and withdraw those immunities and privileges.    

Diplomatic Immunity to Various Officials

Embassy Personnel

The highest-ranking embassy officials who deal with the host country directly have the highest degree of immunity including their family. They cannot be detained, arrested or their property cannot be searched or seized, nor can they be prosecuted in criminal courts or sued in criminal courts with exception to personal matters. The second category which includes admin and technical officials enjoy a lesser degree of immunity with immunity from police and criminal proceedings but not civil courts. They can be sued for acts except for those in official bounds. The third category which is indirectly involved in embassy work get the least immunity and have immunity for acts performed in connection with embassy work. Their families also don’t enjoy any immunity. But the second and third category can enjoy more immunity if the host country and the sending country sign an agreement. And embassy employees who are permanent members of host countries do not enjoy any immunity.

Consular Personnel

Consular personals have immunity in all acts that are official in nature but apart from that, they have less immunity than embassy officials. They can be subjected to criminal proceedings but detained only in felony cases. There can be property searches and they can be sued like other citizens as well. The Consular technical and admin staff can only have immunity against official acts but they can also engage in commercial activities outside their official ambit. The other employees have no immunity except that they cannot act as witnesses against official consular affairs. The exception for these employees’ immunities is same as embassy officials.

International Organization Representatives

It is an interesting fact that international representatives enjoy a lesser degree of immunity than national diplomats. Most of the international officials enjoy immunity only pertaining to their official functions only. It is only a few officials of higher rank who tend to enjoy as much immunity as diplomatic agents.

Restrictions

Article 4 of the Vienna Convention provides for the restrictions on diplomatic immunity. It states that if the duties or obligation of the Vienna Convention is being breached by any state or if it is observed that one state is not providing the immunity or privilege to the diplomat of the other state same way the other state is providing then the central government can take actions. A notification can be released in the official gazette of the state followed by an action that is considered proper.

Abuse of Diplomatic Immunity in India & Internationally

One of the major challenges in applying diplomatic immunity that it is abused by the diplomats as well as the receiving states. There are times when receiving states refuse to provide immunity to the diplomats on flimsy grounds giving the defence of immunity being provided only on official grounds. On the contrary, the diplomats have misused their privileges. They have done crimes ranging from drunk driving to sexual assaults and child abuse and have got away with it. These scenes are typically common in international cities like New York, London, Washington which have headquarters of International institution =s and other foreign embassies. It is not surprising to find out diplomats are involved in human trafficking and beggar and other such heinous crimes.

International

These crimes have been prevalent in the USA and to deal with these the Victim of Trafficking and Violence Protection Act was passed in 2000 which was lauded and considered a landmark piece but there were loopholes. It did not allow women who were in the country for temporary visas to stay long enough to complete the prosecution of the case. This was corrected through the Reauthorization Act of 2008 which allowed victims to stay and complete their litigation procedure. Even in London, data hade been published in 2004, that there were 122 cases of serious offences committed by diplomats and officials but the government was not able to prosecute these diplomats due to the immunity they had.

India

Even in India, there have been instances of such abuses recently. The Counsel General of Bahrain, in 2013 was accused of molesting a 49-year-old woman. Though there was suspicion of molestation he was not arrested because he had diplomatic immunity. Another instance was in 2014 where a police case was filed against diplomats of Israel because they injured immigration officials at the airport but no action was taken because they enjoyed immunity.

Cases

One of the cases on diplomatic immunity was Mighell v. Sultan of Johore. In this case, the sovereign status of the Sultan was a contentious issue and whether he could get diplomatic immunity as an independent sovereign. It was Miss Mighell who sued Sultan for breaching the promise of marriage when he was travelling incognito to the UK. The court in the case gave the status of independent sovereign and immunity from its jurisdiction. The decision was made in accordance with the Secretary of State for the Colonies’ letter which stated that the usual attributes of a sovereign state were exercised by the Sultan and the UK also considered the Sultanate of Johore as an independent State.

Another case of 2013 where diplomatic immunity was in question because the Italian ambassador signed an affidavit in the court that Italian Marines travelling to Italy for vote would return to complete their litigation and the Italian ambassador was served a restraining order by the Supreme Court to not to leave from India owing to the possibility of contempt proceedings against him. This was considered a serious breach of the Vienna Convention. The question here was if the marines not returning even after the affidavit is submitted to the Supreme Court, forms a legal basis for Supreme Court to restrain Italian ambassador Daniele Mancini and could contempt proceedings begin against him. The question was if this was a breach of diplomatic immunity to the foreign diplomat.

Conclusion

Diplomatic Immunity is an essential element of International Law and plays an important role to establish peaceful and healthy relations amongst states around the world. The codification of diplomatic immunity in the form of Vienna Conventions in 1961 and 1963 has been considered as the leading success of the United Nations. Diplomatic Immunity is also considered extremely paramount because it aids foreign officials to discharge their functions without any interference.

References:

1. Amien Kacou, What Is Diplomatic Immunity? ,NOLO, https://www.nolo.com/legal-encyclopedia/what-is-diplomatic-immunity.html
2. Anup Surendranath & Shreya Rastogi, Diplomatic Immunity in peril, THE HINDU, June 13, 2016
3. Diva Rai, Diplomatic Immunity: Everything important you should know about, IPLEADERS,( May 14, 2020), https://blog.ipleaders.in/diplomatic-immunity-everything-important-you-should-know-about/
4. Elizabeth Roche, India says bound by Supreme Court order on Italian ambassador, MINT, Mar 18, 2013
5. Mighell v. Sultan of Johore.-[1894] 1 q.b.  
6. Republic of Italy & Ors. v. Union of India & Ors, [2013] 4 SCR 595 (India).
7. S.R. Subramanian, Abuse of Diplomatic Privileges and the Balance between Immunities and the Duty to Respect the Local Laws and Regulations under the Vienna Conventions: The Recent Indian Experience, 3 CJGG 182, 185-193; 202-205 (2017)
8. The Diplomatic Relations (Vienna Convention) Act, 1972, No. 43, Acts of Parliament, 1972 (India)