This article is written by Ashish Sharma, a student of the Rajiv Gandhi National University of Law. The author has discussed the functions, privileges and immunities of diplomats along with the historical background.
Diplomats are the persons who reside in foreign countries as the representative of the country by whom they are despatched. They act as a link between the country who despatch them and by whom they are accredited. Therefore, they perform the act of diplomacy, which in International Law means by which the States maintain or establish mutual relations and carry out their legal or political transactions based on their foreign policies.
Act of diplomacy may be performed by the head of State, Government, Minister of Foreign Relations or by and by diplomatic agents.
Law on Diplomatic agents
The practice of sending and receiving diplomatic agents is followed by states since ancient time. In ancient times ‘Doots’ were sent from one Rajya to another. However, in ancient time the practice was not uniform nor they were sent permanently to another Rajya. The practice of permanently sending the diplomatic agents started from the seventeenth century.
By the second half of the seventeenth-century permanent legation became a general institution and certain rights and duties almost identical in nature were provided to the diplomats.
The Congress of Vienna of 1815 for the first time codified customary rules of International Law on ranks of diplomatic representatives. The institution of diplomacy continued to develop after 1815 and after the establishment of the United Nations, the task for codifying for the law relating to diplomatic agents was given to the International Law Commission.
The Commission prepared the draft article and submitted them to General Assembly. The Assembly convened a conference in 1961 and adopted Vienna Convention on Diplomatic relations.
Classification of Diplomatic agents
Diplomatic agents accredited to a State differ in class. The Vienna Convention on diplomatic relations, 1961 under Article 14 divides diplomatic agents into three classes. They are:
- Ambassadors accredited to head of State.
- Envoys, ministers accredited to the head of State.
- Charges d’ Affairs accredited to Ministers of Foreign Affairs.
Functions of Diplomatic Agents
Functions of diplomatic agents are determined by the rules and regulations of International Law and municipal law (law of country) of the States. Article 3(1) of the Vienna Convention of Diplomatic Relations, 1961 lays down various functions of diplomatic agents which are as follows:
- Representation: Diplomatic agents represent the policies and beliefs of State by which they are dispatched to the state where they are accredited. The function of representation is primarily entrusted to the head of the mission. Oppenheim, in his book, says that “diplomats are the mouthpiece of the head of his own State and the Foreign Minister for communication to be made to State where they are dispatched.
- Protection: Diplomatic agents protect the rights and interests of sending State and also of nationals, within the limits allowed by the municipal law of respective State. The limit of diplomats is not prescribed by the International Law but by the municipal law of the State.
- Negotiation: Negotiation is the most important function which is performed by the diplomatic agents. Generally, the head of the diplomatic mission negotiates on various aspects of on behalf of the sending State with the State to which they are accredited in order to maintain a friendly relationship. Diplomatic agents are required to communicate the outcome of the negotiation to sending State from time to time,
- Observation: Diplomatic agents are required to observe those events and happenings which take place or which may take place in the State where they are accredited, especially those which may affect the interests of the State by which they are sent. After making observations of the events, they are required to make periodical reports to the government of sending State.
- Promotion of Friendly Relations: Diplomats are required to promote friendly relations between the sending State and the receiving State. They also have the function to develop the social, cultural and economic relations between the two States.
- Consular Functions: Vienna Convention lays down that diplomatic agents can also perform consular functions which may be allotted to them from time to time such as death, birth and marriage registrations of the subjects of home State, issue of passports etc.
Diplomatic immunities and privileges
International Law confers diplomatic immunity on diplomats from the exercise of jurisdiction by receiving States. The principles governing diplomatic immunities and privileges are among the most ancient and universally recognised principles of International Law.
Basis of Diplomatic immunity and privileges
Different international jurists have divergent views as to the basis for giving immunities to diplomatic agents. Their views led to the emergence of three important theories which are as follows:
- Extra-territorial Theory: This theory is also known as the fictional theory. According to this theory, diplomatic agents are considered not be within the territorial jurisdiction of the State to which they are accredited, but to all times within that of the sending State. Extra- territorially of diplomatic agents means that though diplomats physically present upon the soil of the country to which they are accredited but they remain for all purposes on the soil to which they represent.
- Representational Theory: According to this theory, diplomatic agents are regarded as personal representative of the sovereign of the sending State. Therefore, they are given the same degree of privileges and rights which are given to the head of sending State.
- Functional Theory: According to this theory, diplomatic agents are given immunities because of the nature of their functions. The duties which the diplomats perform are far from easy. In other words, their actions of duties are of typical or some special nature. They are allowed immunities from the legal and other limitations of the State to which they are accredited to effectively perform the tasks they are allotted.
Privileges and immunities of a Diplomat
Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and privileges which are granted to diplomatic agents. They are as follows:
- Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle which is recognized in International Law much before the adoption of the Convention of 1961. Article 29 of the Vienna Convention lays down that “the person of a diplomatic agent shall be inviolable”. He shall not be liable to any form of arrest or detention, and the receiving State shall treat him with all due respect and should take all appropriate to prevent an attack on his personal freedom and dignity.
- The Government of receiving State by virtue of Article 29 is under a duty to conduct to abstain from any form of conduct which is injurious to the diplomatic agents and also under a duty to prevent such injurious conduct if attempted by another.
This does not mean that the immunity given to the diplomats is absolute. The receiving State has the power to arrest or detain the diplomatic agent in exceptional cases For instance, a drunken diplomat with a loaded gun in a public place can be arrested or if a diplomatic agent commits an act of violence which disturb the order and peace of receiving State in such a manner that it becomes necessary to put him under restraint for the purpose of preventing similar acts.
Inviolability of Staff of Mission
In addition to the head of mission, immunities are also given to the staff of the mission, which is defined in article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna Convention lays down that members of the administrative and technical staff shall enjoy the immunities and privileges as mentioned from Article 29 to Article 35 if they are not nationals or are not permanent residents of receiving State.
Thus, administrative and technical staff only enjoys personal inviolability (Article 29), inviolability of residence (Article 30(1)), immunity from criminal jurisdiction (Article 31(1)), exemption from certain taxes and duties (Article 34) and immunity from civil and administrative jurisdiction exists when they are performing service duties [Article 31(1)].
Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff if they are not the nationals or permanent resident of receiving State. It provides immunity to the acts performed in course of their duties, exemption from taxes and duties on emoluments received and exemptions on social security provisions.
Inviolability of family members
Vienna Convention of Diplomatic Relations in its Article 37 Para 1 states that “immunities and privileges to the family members of diplomatic the diplomatic agents having diplomatic ranks may be given, if firstly they are not nationals or permanent resident of receiving State and secondly, so long as they form the part of household, i.e. they live under one roof”.
So if the son of a diplomat is studying in any University of receiving State and just come on weekends to meet his parents, then he will not be provided with any immunity as he is not forming the part of the household.
- Inviolability of premise: Article 21 of the Vienna Convention lays down that, “a permanent diplomatic mission needs premises to operate and receiving State must help the sending State to obtain the premises form mission”. The sending State has the right to use its flag and emblem on the premises (Article 20). Article 22 of the Vienna Convention of Diplomatic Relations stipulates the customary rule of International Law by stating that “the premises of the mission shall be inviolable”. Further Article 30 also provides that “private residence of a diplomatic agent shall also enjoy inviolability”. The agents, police or any officer of the receiving State are not allowed to enter the premises without the consent of the head of mission. However, the inviolability of premises is also not absolute it can be compromised in certain exceptions. Article 41 of the Convention itself lays down that “premises of the mission should not be used in any manner as incompatible with functions of mission or by rules of general International Law”. So, if the inviolability of premises is abused then the receiving State should not bear it passively and can take all the necessary steps to stop the actions of agents.
- Inviolability from being a witness: Diplomatic agents are completely immune from being a witness in any civil or criminal or administrative court of State to which they are accredited. He is also immune from giving evidence before the Commissioner. However, they may appear before any court by waiving of their immunity. Article 31(2) lays down that “diplomat agent is not obliged to give evidence as a witness”.
- Immunity from taxes and customs duties: Article 34 of Vienna Convention lays down that, “diplomatic agents shall be exempted from all dues and taxes, personal or real, national, municipal or regional”. Initially, before the convention, this right was given to the agents due to Courtesy but Convention has incorporated it with more precise definition.
- Immunity from inspection of Personal Baggage: The bag used by the diplomatic agents for sending articles, letters or documents to the sending states or any other missions of its State to abroad be known as a diplomatic bag. Para 3 of Article 27 of the Vienna Convention lays down that “diplomatic bag should not be opened or detained’. But according to Article 36 Para 2, this right is not absolute. It lays down that, “general practice of exempting the diplomats’ personal baggage from a custom inspection is qualified by the provision that inspection can be conducted in presence of a diplomatic agent or his agent if there are serious grounds for suspecting that the article is not for official use”.
- Freedom of Communication: Diplomatic agents are free to communicate any information for official purposes to the State by which they are accredited. Article 27 of the Vienna Convention lays down that “the freedom of communication also involves the use of code messages and couriers”.
- Freedom of movement and travel: Article 26 of Vienna Convention empowers diplomatic agents to move and travel in the territory of receiving State but subject to laws and regulations of International Law and rules made by receiving State concerning security zone.
- Right to worship: Under Article 3(1) of Vienna Convention diplomatic agents have the right to worship any religion they like within the mission premises or residence. But they cannot invite any nationals of the receiving State to take part in the worship and have no right to preach their religion in receiving State.
- Immunity from the Local Jurisdiction: Diplomatic agents enjoy immunity from the jurisdiction of local courts. The immunity extends both to criminal as well as civil jurisdiction.
Article 31, paragraph 1 of the Vienna Convention provides that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. Thus, receiving State has no right to prosecute and punish diplomatic agents. Immunity of diplomatic agents from civil and administrative jurisdiction also a well- recognized principle of International Law.
Diplomats are provided immunity to effectively perform their function because of the typical nature of functions and diplomat being the representative of the head of State. All the rights and immunities provided to the diplomats are not absolute they can be compromised within certain exceptions. At present, the institution of diplomatic representatives has become the principal machinery by which intercourse between States is conducted.