This article is written by Shreya Malhotra, currently pursuing BBA LLB from Symbiosis Law School, Hyderabad. The article talks about the Vienna Convention on Diplomatic Relations and its violation by Pakistan.
Table of Contents
The 1961 Vienna Convention on Diplomatic Relations, which was ratified in 1966, plots the standards of diplomatic law and is actualized by the Foreign Missions and International Organizations Act. The Convention arranges the principles for the exchange and treatment of agents between states, which have been solidly settled in customary law for a long time. It has become an all-around received Convention with 60 signatories and 192 parties.
The Vienna Convention on Diplomatic Relations is major to the direction of foreign relations and guarantees that diplomats can lead their obligations without any danger of impact by the host government. Commonly speaking, the Convention establishes rules for the arrangement of foreign representatives; the inviolability of mission premises; protection for the representative and their family from any type of capture or detainment; protection of all types of diplomatic correspondence; the basic rule of exception from tax collection; immunity from civil and administrative jurisdiction, with restricted exemptions; and that diplomats must regard the laws of the host state.
As expressed in the introduction of the Convention, the guidelines are planned to encourage the improvement of cordial relations among countries, regardless of their contrasting constitutional and social frameworks. The purpose of such privileges and immunities is not to profit people but to guarantee the efficient performance of the functions of diplomatic missions. The Convention expects representatives to comply with neighbourhood laws. However, the only sanction permissible under the Convention, without a waiver of immunity, is expulsion. This forestalls the expected abuse by local authorities of the power vested by a state’s law enforcement framework. Reciprocity, likewise, frames an effective sanction for the recognition of the rules of the Convention.
Vienna Convention on Diplomatic Relations
The Vienna Convention on Diplomatic Relations was signed on the 18th of April, 1961. The Vienna Convention on Diplomatic Relations is an international treaty, acknowledged by 192 parties till date, and characterizes a rule for diplomatic relations among various autonomous nations. It is the basis of modern international relations.
It determines the benefits of a diplomatic mission while empowering diplomats to carry out their functions unafraid of compulsion or badgering by the host nation. This structures the legitimate reason for diplomatic immunity. Its articles are viewed as a foundation of modern international relations.
Outline of Provisions
The treaty is a broad record consisting of 53 articles. Here are some of the important Articles mentioned under the Vienna Convention on Diplomatic Relations, 1961:
Article 9 of the Vienna Convention on Diplomatic Relations states that the host country, whenever and for any reason, can pronounce a specific individual of the diplomatic staff to be non-acceptable. The sending state shall recall this individual within a reasonable timeframe or, in any case, this individual may lose his or her diplomatic immunity.
Article 22 of the Convention states that the premises of a diplomatic mission are inviolable and must not be entered by the host nation except with the consent of the head of the mission. Besides, the host nation must shield the premises of the mission from intrusion or harm. The host nation should never search the premises, nor hold onto its records or property.
Article 24 states that the files and archives of a diplomatic mission are inviolable, and the accepting nation will not seize or open such records.
Article 27 of the Convention states that the host nation must allow and secure free correspondence between the diplomats of the mission and their home country. A diplomatic bag must never be opened even on doubt of its misuse. A diplomatic courier must never be captured or confined.
Article 29 states that the diplomats must not be subject to any type of capture or detainment. They are insusceptible to civil or criminal prosecution. However, the sending nation may waive this right under Article 32.
Article 34 states about the exemption from payment of taxes for diplomatic agents while Article 36 states that diplomatic agents are absolved from any custom obligations.
Article 37 states that the family members of diplomats, that are living in the host nation, enjoy the majority of the same protections as the diplomats themselves enjoy.
Diplomatic immunity is a type of legal protection that guarantees diplomats a safe path and inviolability to litigation or punishment under the laws of the host nation, although they may be terminated. Its goal is to grant foreign diplomats the opportunity to carry out their legitimate official obligations without any interference but it doesn’t imply that they can do whatever they please, without any fear of punishment.
The premise of diplomatic immunity is expediency and reciprocity, and not outright permit. A foreign diplomat (like a neighbourhood resident) can be charged for all offences that he or she commits, regardless of whether they are heinous or petty. The main contrast is that the individual upon verification of diplomatic identity may not be captured, held in legal custody, or made a defendant in a legal dispute. Rather, the person in question is ousted, through fair treatment, to their nation of origin to confront prosecution under its laws. Diplomats who are serious offenders or engage in activities contrary to their official status may be declared “persona non grata” and be compelled to return to their home nation within a couple of days or hours.
The idea of diplomatic immunity returns to the old Indian practise of diplomacy, and to Greek republics and Roman empires that authorized explicit laws to secure diplomats. The modern international practice was established in the UK Law, 1708 that precluded the capture of foreign diplomats. Its provisions were extended and officially ensured by the 1815 Congress of Vienna, and were additionally intensified by the Vienna Convention on Diplomatic Relations, 1961 and two years later, the Vienna Convention on Consular Relations of 1963 was codified.
Basis of Diplomatic Immunity
There are different speculations as to why diplomatic immunity is granted, some of which are explained below.
The first one is the Representative of Sovereign theory. According to this theory, a diplomatic agent is considered as the delegate of the State and any act done by him is considered, as though, done by the State itself. Speaking in another way, a diplomatic agent exemplifies the sovereign he represents. This theory was not acknowledged broadly and faced a lot of criticism, such as the embodiment of the representatives as the State they represent make them incomparable to the receiving State, and alongside the official acts additionally cover the private acts of the diplomatic envoys.
The Exterritoriality theory is the second theory, and it is one of the oldest ones. It embraces the legal fiction that a diplomatic agent is always on his own soil to whichever place he may go. So, to state that regardless of whether the diplomatic agent is facilitated by the receiving State or not, even then the diplomat will be governed as if he is living in his own state and not an outside State, and the laws of that outside State will not be applicable on the diplomat. Indeed, even this theory faced criticism and was not acknowledged because of its fictitious character.
Now comes the most well-known theory of functional necessity. This theory clarifies that if such immunity was not granted to the diplomats, they would not have been able to carry out their functions particularly. If they were administered by the laws of the receiving State, at that point, it would have meddled with their mission and security, likewise, would have been hampered.
Cases when Pakistan breached Vienna Convention
Torture of an Indian Diplomat in Pakistan
In May, 1992 an Indian diplomat named Rajesh Mittal was tormented and questioned for about seven hours. Later, he was discharged on charges of acquiring secretive documents. It is to be noted that, just a month prior to this occurrence, a Pakistani diplomat was terminated from India on the charges of espionage. The torture which Mittal faced was presumably in reprisals of the said Indian action. Most likely as an act of retaliation, the following day, India announced two Pakistani diplomats namely, Counsellors Zafarul Hassan and Syed Fayaz Mahmood Endrabi ‘persona non-grata’, i.e., undesirable people, and asked the Pakistani High Commission to call back them within a period of 48 hours.
When India announced Pakistani diplomats as persona non grata, it was in conformity with the Vienna Convention and the rules of international law. But, the torment of an Indian diplomat by Pakistani insight authorities is an egregious infringement of the principle of inviolability of the individual of a diplomatic envoy, as cherished under Article 29 of the Vienna Convention on Diplomatic Relations, 1961. The principle of the inviolability of the individual of the diplomatic envoy and the commitment of the receiving State to ensure the inviolability of the workforce of the mission has been maintained and reaffirmed by the International Court of Justice on account of the United States Diplomatic and Consular Staff in Tehran (1980).
India v. Pakistan
In India v. Pakistan, India moved to the International Court of Justice, in 2017, when Kulbhushan Jadhav, an Indian national, was condemned to death by a Pakistani military court for his supposed involvement in espionage and terrorist activities. During Jadhav’s whole trial process, India was not granted any consular access to him, in spite of several requests. At the ICJ, India claimed that Pakistan abused its commitments under Article 36 of the Vienna Convention on Consular Relations, which is a multilateral treaty signed in 1963 that sets down standards for consular relations between free sovereign states.
Under Article 36 of the Vienna Convention on Consular Relations, nationals of the sending State reserve the option to get access to consular officials of their State. Likewise, the receiving State is under a commitment to inform the consular post of the sending State, if a national of the latter is captured. Additionally, consular officials reserve the option to visit such a national of the sending State to talk and correspond with him, and to arrange for his legal representation.
The ICJ concurred with India and inferred that Pakistan violated Article 36 of the Vienna Convention on Consular Relations for the accompanying reasons:
- Firstly, Pakistan failed to inform Jadhav of his privileges under Article 36 of the Convention on Consular Relations.
- Secondly, Pakistan failed to notify the particular Indian consular post in Pakistan about Jadhav’s confinement.
- Thirdly, Pakistan denied India’s consular officials to approach Jadhav, and to render him help including arranging for his legal representation. The ICJ also stated that, in Jadhav’s case, the Vienna Convention was applicable irrespective of claims that he was involved in espionage.
The ICJ additionally dismissed Pakistan’s contention that the subject of consular access between India and Pakistan is administered by the 2008 bilateral agreement on consular access and not by the Vienna Convention on Consular Relations. The 2008 bilateral agreement provides that, in case of arrest, detainment, or sentence made on political or security grounds, each side may analyze the case on its own merits.
Relying on this provision, Pakistan contended that Jadhav’s capture was on political or security grounds, and in this manner, it has the privilege to choose the question of consular access on its own merits. The ICJ held that the 2008 agreement can’t be perused as denying consular access in any event, even when a capture is made on political or security grounds.
India and Pakistan, by signing the 2008 agreement, have not contracted out of the Vienna Convention on Consular Relations. Alluding to Article 73(2) of the VCCR, the ICJ held that while nations are still signatories to the VCCR can go into a bilateral agreement; this must only be for the purpose of affirming, enhancing, broadening, or intensifying the VCCR provisions. On this premise, the ICJ inferred that the 2008 bilateral agreement doesn’t dislodge the Article 36 obligations on Pakistan.
One of the reliefs India sought from the ICJ was to direct Pakistan to release Jadhav, and to facilitate his safe journey to India, though the ICJ didn’t acknowledge this contention. It held that the court’s purview is confined to deciphering and applying the VCCR provisions, and not reaching out to other issues. Additionally, referring to the Avena case that included Mexico and the United States, the ICJ held that it was not the convicting or condemning of Jadhav, but denying consular access and rights, which are to be viewed as an infringement of the VCCR.
The ICJ has obligated Pakistan to embrace a successful review and revaluation of the conviction and sentence of Jadhav.
Nonetheless, ICJ has underlined that this review will be compelling, only if Pakistan wholly considers the unfriendly outcomes and biases that have resulted due to Pakistan’s rebelliousness or violation of Article 36 of VCCR.
Till such a successful review is embraced, the stay on Jadhav’s capital punishment will continue. The ball is currently in Pakistan’s court concerning how it actualizes the ICJ ruling both in its letter and spirit. Under Article 94(1) of the United Nations Charter, Pakistan is under a commitment to comply with this decision.
Pakistan continues to stay under the ‘Grey List’
Though Pakistan has not been boycotted by the Financial Action Task Force, it still remains under the ‘grey list’ for its failure to reach goals at different points of action. Pakistan has, indeed, figured out how to spare itself from being blacklisted by the Paris-based Financial Action Task Force (FATF). However, it will still be in the ‘grey list’ for not opting to take effective measures against money laundering and terror financing, until at least June 2020, when the following plenary was held.
Towards the end of the five-day plenary of the FATF, the 39-member intergovernmental body came out with its last appraisal, finding that Pakistan still lacks effective measures in controlling dread financing and illegal tax avoidance, which falls under the classification of anti-money laundering and countering the financing of terrorism, known as AML/CFT infringement.
Pakistan was assessed on 27 actions points by the FATF, among which Pakistan was able to execute 14 parameters completely; on the other 11 parameters, it was seen as partially agreeable, and on the remaining two parameters, it was not consistent at any stretch of the imagination.
A portion of the expansive parameters which Pakistan has failed to accomplish its consistent targets comprises anti-money laundering and financing of terrorism, prosecuting and punishing dread financing, transparency, and secrecy in monetary foundations, actualizing a viable national system to check the illicit subsidizing of terrorist outfits, etc.
What is FATF?
The Financial Action Task Force (FATF) was established in 1989 by a Group of Seven (G-7) summit in Paris, initially, with the objective to examine and create measures to battle money laundering. Financial Action Task Force is an inter-governmental body that sets norms for executing administrative, legal, and operational estimates that will battle money laundering and terrorist financing activities. The FATF is financed by its 37 member nations and two territorial associations, i.e., the Gulf Cooperation Council, and the European Commission.
The 40 standards
The 40 popular standards of Financial Action Task Force were created in 1989, and have been modified occasionally since 1996, one of the recent modification being in October 2018, which includes:
- Featuring the need to improve transparency by making the beneficial ownership data of legal persons and courses of action available. For India, this had major implications on curbing tax avoidance and black money.
- Drilling down the forces and obligations of competent authorities like controllers, managers, and law enforcement agencies. In India, this requires fortifying administrative organizations like the securities and banking regulators- SEBI (Security and Exchange Board of India) and RBI, investigative agencies such as CBI, and also judges.
- Approaching nations to find a way to sanction and completely actualize extant global and regional conventions like the Vienna Convention, and conventions experiencing negotiations concerning defilement and illegal tax avoidance, terrorist financing, and cybercrimes.
There have been many instances where the provisions of the Vienna Convention of Diplomatic Relations have been violated, and it can also be noticed about the part where Pakistan has been greylisted by FATF. There are a lot more instances where the Pakistani Government has been seen violating the principles of VCDR whether intentionally, non-intentionally or as a tit-for-tat strategy. Hence, this causes a need for more stringent laws so that they can not be violated or breached by any of the countries and the purpose of making such laws can be peacefully fulfilled. There is also a need to take strict actions against the parties breaching the laws and principles in order to maintain effectiveness. The countries are under obligation to comply with the provisions of VCDR and similarly, the Pakistani government should follow the same. Additionally, it is also crucial to maintain a fair balance between the interests of the sending and the receiving States without depending upon the other privileges.
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