This article is written by Aradhya Gupta, pursuing B.A. LL.B.(Hons) from Teerthanker Mahaveer University. This is an exhaustive article which deals with the topic of diplomatic immunity.

Introduction

The concept of diplomatic immunity is a very old or ancient idea that is based upon mutual reciprocal respect and understanding among the different states of societies. Historically the diplomatic immunity emerged from the respect of the messengers who used to deliver there the messages of their rulers or to declare wars, conclude peace, or about other necessary National issues. 

This idea of diplomatic immunity has been developed in order to strengthen the healthy International relations among the Nations in which the states and a person on their behalf to argue for their issues and negotiate upon certain aspects.

In international law, the Vienna Convention of 1961 provides the concept of law on diplomatic immunity.

Meaning

Diplomatic immunity is one of the principles of international law which 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.

Definitions

• Diplomatic immunity is a rule of international law that shields diplomatic agents of the sending State from the jurisdiction of the foreign state where they perform their functions.
• The diplomatic relations among the different states have today become a key element in international relations. The diplomatic agents who act in favor of the state’s interests play a crucial role in building a peaceful Internationalised environment of the world.
• It basically ensures that the diplomats cannot get prosecuted by the authorities of the receiving state. The acts of diplomacy may be performed by the head of the state, government, Minister of foreign relations, or by Diplomatic Agents.

Evolution of Principle of Diplomatic Immunity

The word ‘diplomat’ has been derived from a French term ‘diplomate’ which means a person whose duty is to represent his country in the receiving country and to further negotiate on behalf of his State. Diplomats enjoy a very special status both abroad as well as in the home. The early historians trace the origin of this concept of diplomacy from the Mediterranean region, China, the Middle East, and India.

Historical Evolution in India

The history of diplomatic relations can be traced back to several ancient civilizations. In India, the traces of diplomatic relations and of the concept of diplomacy can be found back to the period of 4th century BC. Arthashastra written by the great Sanskrit scholar Kautilya, is an important source of early Indian diplomatic history. Manusmriti also includes the rules relating to diplomacy. Similarly, the kingdom of Maurya, especially under King Ashoka, also had a spirited diplomatic system.

Vienna Convention Diplomatic Relation, 1961

The development of the aspect of diplomatic immunity over the years led to the evolution of the Vienna Convention which with time became a universal Convention and its provisions clearly marked the progression of customs into the settled law. In 1815, Vienna was the first site of a meeting for the diplomatic Agents. The first international attempt to codify the rules of diplomatic immunity was made in 1895 through the Draft Convention made by the Institute of International Law. This resolution stipulated that diplomats enjoyed extraterritoriality. This extraterritoriality was curtailed in 1929. This is the genesis of the Vienna convention. The Vienna Convention has come into existence as an essential tool in International Law which provides the rules and other various aspects of diplomatic conduct and control all over the world and is treated as the reference point when dealing or examining the concept of diplomatic immunity.

Basis of Diplomatic Immunity

There are certain important theories that very well explain the concept of diplomatic immunity based upon the ideologies of different International jurists.

Extraterritoriality Theory

This theory in international law exempts certain diplomatic persons and Agencies operating in a foreign country from the jurisdiction of the host country. Also it states that these diplomatic persons/Agencies do remain accountable to the laws of their native countries. The concept of extraterritoriality theory was propounded by French legal theorist and jurist Pierre Ayraut. According to him “certain persons and things, while within the territory of a foreign sovereign; remained outside the reach of the local judicial process”.

Representative Character Theory 

The Second theory of diplomatic immunity is the Representative Character theory. 

According to this, the host state should deal with the representative of the other states as if it deals with the Sovereign state itself. This means the receiving state must treat the representatives or ambassadors similar to how it treats the Presidential representatives so that the diplomatic agents do not get subjected to the jurisdiction of the receiving state.

The diplomatic privileges and immunities were based on the fact or idea that attack against the diplomats should be understood as the attack against the ruler or sovereign of the sending state himself as they have the same blood within them.

Functional Necessity Theory

The functional theory is a more practical and expected one in the diplomatic law. It is based on the thesis that diplomatic agents could successfully or perfectly perform their function in other countries, only if they are protected or shielded with the immunity and privileges in the receiving Nation. 

The Preamble of The Vienna Convention clearly states that-

“….the purpose of the immunities and privileges is to make it ensure that the functions of the diplomatic missions are performing efficiently and effectively in the representing state…” 

These lines make it very clear that functional necessity is a fundamental principle for the Diplomatic immunity and privileges in the Vienna Convention.

Reciprocity Theory 

The theory of reciprocity states that the favors, penalties, and benefits which are granted by one State to the citizens or diplomatic agencies of another state should be returned back 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.

International Peace Theory 

International peace theory is propounded in the writings of Immanuel Kant, 18th-century German scholar. According to the writers and different Scholars of this theory, the Democratic States have succeeded in maintaining peace and security among each other and they are less likely to engage in the war activities with each other.

While on the other hand, the democratic States used to be more inclined to wage wars against the non-democratic States.

Immunities and Privileges

The Vienna Convention on diplomatic relations of 1961 lays down the different immunities and privileges which are granted to the diplomatic envoys or agents. They are as follows:

Inviolability of Diplomatic Agents

Diplomatic agents are inviolable. The Vienna Convention under Article 29 lays down that 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.

Inviolability of Premises

A permanent diplomatic mission needs premises from which it can operate and the receiving state must help the sending state in obtaining premises for the mission. Vienna Convention under Article 22 stipulates the customary rule of International law which states that ‘the premises of the mission shall be inviolable’. Except otherwise provided by the consent of the head of the mission, any member or agent of the receiving state should not enter their premises.

Immunity from Local Jurisdiction 

Diplomatic agents enjoy immunity from the jurisdiction of the local courts. The immunity extends to criminal jurisdiction as well as to civil and administrative jurisdiction.

Immunity from giving Witnesses

Diplomatic agents are immune from being presented as witnesses in a civil, criminal, or administrative code of the state to which they are accredited. Article 31(2) of the Vienna Convention provides that a diplomatic agent is not obliged to give any evidence as a witness in any case.

Immunity from taxes and custom duties

Vienna Convention of 1961 under Article 34 lays down that diplomatic agents shall be exempted from all duties and Taxes imposed, whether personal or real, national, regional, or Municipal.

Immunity from inspection of personal baggage

The bag used by the diplomatic mission for sending letters, documents, and articles to the sending States or to other missions of its States abroad is called a diplomatic bag. 

The Vienna Convention on diplomatic relations of 1961 provides under Article 27 that the diplomatic bag of the envoy shall not be open or detained. However, the general practice of exempting the diplomat’s personal luggage from a custom inspection is attached with the proviso that the inspection can be conducted in the presence of the diplomatic agent if required or if there are serious grounds for suspecting that the articles are not for the 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 includes the use of couriers and code messages.

Freedom of movement and travel

Article 26 of the Vienna Convention provides that the diplomatic agents are free to move and travel in the territory of the host state.

But this is subject to the laws and regulations made by the receiving States concerning the prohibited security zone.

Right to Worship

The diplomatic agents have a right to worship any religion they like within the premises. But they have no right to preach their religion in the receiving state.

Immunity from local and military applications

Article 35 of the Vienna Convention states that diplomatic agents are exempted from local and military obligations of the receiving state to which they are accredited.

Article 4 of the Vienna Convention on Diplomatic Relations

This article stipulates the restrictions on privileges and immunities.

It states that if central government at any time finds that any state which is a party to the Vienna Convention is breaching or has breached its obligations/duties or otherwise if it appears to it that the Indian mission or agents who are in a state in the context of diplomatic relations do not get as the level of privileges and immunities as provided by the act on the diplomatic mission of that state, then the central government, by releasing the notification in its official Gazette, may take action on such instance, as it considers to be proper.

Diplomatic Agents

Diplomatic agents are those persons who inhabit in foreign countries and act as a representative of a country from whom they are sent the provide a significant link between the country from whom they are dispersed and to whom they are sent.

Types of Diplomatic Agents

Congress of Vienna 1815 has classified the diplomatic agents under Article 1 into three types:

Ambassadors

Ambassadors enjoy the special honor as they are considered to be the personal representative of the Head of their states. They can claim the ‘Title of Excellency’. Ambassadors that are sent within the Commonwealth countries are called High commissioners. Normally, the ministers are appointed with the consent of the receiving state.

When the ambassadors arrive in the state where they are dispatched they present A letter of credence which is given to them by the head of the sending state.

Ministers and Envoys

The ministers and envoys do not enjoy the special Honour as they are not regarded as the personal representatives of the Head of their states. They do not receive the title of Excellency. They also do not enjoy the privileged treatment with the head of the state.

There is practically no difference between the ministers & envoys and the ambassadors.

Charges D’ affairs

They are dispatched not by the head of the state but by the foreign office to the foreign office. They do not enjoy the Honours and titles that are given to the other categories of diplomatic agents. They may be appointed either permanently or temporarily. Charges De affairs are sometimes accredited to a newly recognized government after civil war or revolution.

Article 9 Vienna Convention on Diplomatic Relations

(Principle of Persona non grata)

The Vienna Convention provides that a receiving state may declare any diplomatic agent as Persona non grata if he/she abuses or violates his immunities and privileges allotted to him for such diplomatic mission. This basic principle that the receiving state has the power of expelling the sending diplomat without even explaining the reasons for doing so has been present since a very early time in the practice of diplomacy.

It is considered as the most effective kind of safeguard to a receiving state that has foreign diplomats who are misusing or exploiting their privileges and immunities to an extent that is unacceptable or unavoidable to the receiving state.

Justifications for such actions are as follows: 

• if the diplomat has acted inappropriately or has violated the social norms and/or showed antisocial behavior;
• or when such a person misuses his immunity for committing criminal offenses;
• or where the diplomat acts aggressively towards the state and risks the security of the state;
•  Another reason might be where the state declares the foreign diplomats as persona non grata for revenge purposes, to put pressure on another state to negotiate.

The pronouncement of such instances by the receiving state clearly leads to the non-recognizance of that person by the receiving state as a member of the diplomatic mission. And after such a pronouncement if the person commits any further act as mentioned above, then he may face the legal proceedings. Thereof the diplomatic functions of the individual are terminated.

Article 9 of the Vienna Convention states that:

1. The receiving state at any time and without explaining its decision may notify to the sending State that the head or any envoy of the diplomatic mission is deemed to be as Persona non grata.

In any such case, the sending State shall, as to consider appropriate, may either call such person back to his state or his functions and dealings in regard to that mission. Such a person may even be pronounced or declared as Persona non grata or be terminated from such a mission before reaching that receiving state.

2. As per the declaration made under paragraph 1, if the sending state fails to accomplish its duties or obligations within the specified time period then in such a situation, the host state may refuse to recognize that person as a member of that diplomatic mission.

Key Principles of Diplomatic Immunity 

→ Exemptions and Immunity from State Jurisdiction

Jurisdictional immunity states that the persons with diplomatic immunity cannot be brought before the courts for the allegations of any unlawful acts or offenses committed while being in the State in which they were accredited during the tenure of their dealings in that mission. This extends to all jurisdictions whether civil, criminal, or administrative. Thus, a diplomatic envoy who commits an unlawful act in the state where he is accredited for the diplomatic mission cannot be prosecuted in the local courts. The general reasoning behind the jurisdiction of criminal matters is to prosecute and punish those people who commit unlawful or illegal acts. Immunity from criminal jurisdiction of a diplomatic agent which is provided in Article 31 states that the diplomatic agent cannot be put forth before the courts of criminal jurisdiction of that host state for any illegal acts or offenses committed in that State, which is contrary to the very spirit of the rule of law and justice.

→ Theory of Non-Interference

The principle of non-interference states that the Sovereign state shall not intervene in each other’s internal affairs. 

It is the common principle of contemporary international law that the basis of non-interference in each other’s internal affairs is the duty of “respect for state’s sovereignty and territorial integration” which further governs the relations between the states in regards to their rights and obligations. It is also considered as a general rule of International law in compliance with the purposes and principles of the UN charter.

→ Rule of Reciprocity: (Absolute immunity)

Reciprocity in international law can be best described as a creator of a balance between the interests and actions of the state. 

The Reciprocity principle plays a prominent role in a decentralized system of public international law where there is no overruling legal authority to establish, adjudicate, or to enforce all International rules. The principle or rule of reciprocity in international relations suggests creating an environment where the states help and support each other under a reciprocal relationship for a particular, short, or long-term advantage through the means of balance in their rights, interest, and duties.

Mighell V. Sultan of Johore Case

Facts: 

• The sovereign status of a Sultan was an Issue in one of a court case in England. 
• When Miss Mighell sued the Sultan of Johor who was traveling incognito in the State of the United Kingdom for breach of promise of marriage.
• The Court granted the Sultan an “independent sovereign” immunity from its jurisdiction.
• The decision was on the basis of a letter from the Secretary of State for the Colonies stating that “generally speaking, [the Sultan] exercises the usual attributes of a sovereign ruler without any sort of question.” This further demonstrates the British recognition of the Sultanate of Johor as an independent State.

Issue: Whether sultan Johor will get diplomatic immunity or not?

Decision: Court held that the Sultan of Johor will get the diplomatic immunity as an “independent sovereign”.

Principle: Foreign sovereign shall be treated as an independent sovereign and therefore should have immunity from the local jurisdiction.

→ Personal Inviolability 

The principle of personal inviolability is a very old established rule of diplomatic law which has a very close relation to the concept of diplomatic immunity.

 Article 29 of the Vienna Convention provides 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”.

→ Doctrine of Restricted Sovereign Immunity

The increasing involvement of states in World Trade activities 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). Under this restrictive approach, Immunity is only available in respect of acts resulting from the exercise of a Sovereign power. As such States may not claim immunity in respect of commercial activities or over commercial assets.

Conclusion

The principle of diplomatic immunity is a very well-established principle of International law. Diplomacy is a foundational fact of international life without which international life will be at risk. The concept of Diplomatic Immunity is very important for the promotion of friendly and healthy relations among the states- be it for the purpose of trade, security, peace, or their cultural relations. 

The Vienna Convention is considered as the major success stone of the United Nations. In this, the Diplomats are provided immunity to effectively perform their functions being the representative of the Head of State. Although, all the rights and immunities provided to the diplomats are not absolute they can be compromised within certain exceptions provided.

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