Diplomatic immunity and its uses

Submitted to:

Mr. Mohammad Atif Khan

Faculty, Public International Law

Submitted by:

Sahaj Puri

Roll No. 137

Sem VI, B.A., LL.B. (Hons.);

Submitted on:

1st May, 2017

HIDAYATULLAH NATIONAL LAW

UNIVERSITY, RAIPUR

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 DECLARATION
I hereby declare that the project work entitled Diplomatic immunity and its usesis done by
me under the able guidance of Mr. Mohammad Atif Khan, Faculty Member, Hidayatullah
National Law University, Naya Raipur (C.G.).

Sahaj Puri

Semester-VI, Batch XIV

Roll no-137

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 TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................................ 2
ACKNOWLEDGMENTS ....................................................................................................... 3
INTRODUCTION.................................................................................................................... 4
CHAPTER I ............................................................................................................................. 5
CHAPTER II ............................................................................................................................ 7
CHAPTER III ........................................................................................................................ 12
CHAPTER IV......................................................................................................................... 14
CONCLUSION...16

REFERENCES ....................................................................................................................... 17

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 ACKNOWLEDGMENTS

I would like to thank Mr. Mohammad Atif Khan for assigning me this topic and guiding me
in its research. It was quite an enriching experience. I would also like to express my gratitude
to HNLU for its expansive library and computer and internet facilities. Lastly, I would like to
thank all those people and friends who helped me in the completion of my project.

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 Introduction

Diplomatic immunity is a principle of international law by which certain foreign government

officials are not subject to the jurisdiction of local courts and other authorities for both their
official and, to a large extent, their personal activities. It is a form of legal immunity that
ensures diplomats are given safe passage and are considered not susceptible to lawsuit or
prosecution under the host country's laws, although they can still be expelled. Modern
diplomatic immunity was codified as international law in the Vienna Convention on
Diplomatic Relations (1961) which has been ratified by all but a handful of nations, though
the concept and custom of such immunity have a much longer history dating back thousands
of years. Many principles of diplomatic immunity are now considered to be customary law.
Diplomatic immunity as an institution developed to allow for the maintenance of government
relations, including during periods of difficulties and armed conflict. When receiving
diplomats, who formally represent the sovereign, the receiving head of state grants certain
privileges and immunities to ensure they may effectively carry out their duties, on the
understanding that these are provided on a reciprocal basis. These conventions provide
immunity to persons in accordance with their rank in a particular diplomatic mission or
consular post and according to the requirement of immunity in performing their
responsibilities. Indeed diplomats are relieved from the civil, criminal, and administrative
jurisdiction of the sending state. However, their host country might waive this exception.
Furthermore, a diplomats immunity from the jurisdiction of the sending state does not
absolve him or her from the jurisdiction of his or her homeland. It is also on the discretion of
the sending state to declare a diplomat persona non grata and he or she can be terminated
from his or her mission following inappropriate action in a mission on the part of the
diplomat and the host country is not under any obligation explain such expulsion.
These conventions provide immunity to persons from the civil, criminal, and administrative
jurisdiction of the sending state. However, their host country might waive this exception.
Furthermore, a diplomats immunity from the jurisdiction of the sending state does not
absolve him or her from the jurisdiction of his or her homeland. It is also on the discretion of
the sending state to declare a diplomat persona non grata and he or she can be terminated
from his or her mission following inappropriate action in a mission on the part of the
diplomat and the host country is not under any obligation explain such expulsion.

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 CHAPTERIZATION

Chapter I of the study is the Introduction to Research Methodology. It enunciates on various

aspects of research method used in the study of this topic. It contains the rationale or research
problem, research scope and objectives, research questions, hypothesis and nature and
sources of the study.

Chapter II of the project introduces the readers discusses the concept of diplomatic
immunity and principles established through various conventions

Chapter III of the project justifies the need for diplomatic immunity

Chapter IV discusses various conditions and instances of abuse of diplomatic immunity

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 Chapter 1

INTRODUCTION TO RESEARCH METHODOLOGY

RESEARCH PROBLEM:

The primary problem to be dealt with in this project report is the use and abuse of diplomatic
immunity under public international law.

SCOPE AND OBJECTIVE:

This study aims to understand the current position of the aforementioned concept in
investment jurisprudence by tracing its history in various conventions. Owing to time and
word limit constraints, a detailed analysis, although desired, has not been possible.

The main objectives of the study are:

Understanding the concept of diplomatic immunity.

Analyzing its importance the field of international law.
Noticing the loopholes in concept leading to abuse of immunity.
Provide for case studies as to the aforementioned concept.

HYPOTHESIS:

The concept of diplomatic immunity provides almost absolute protection against physical or
legal infringement in the host state. It has certain rationales and loopholes related to it.

NATURE AND SOURCE OF STUDY:

The present study is a descriptive and analytical study based on the critical review of both
primary and secondary sources. Secondary and Electronic resources have been largely used
to gather information and data about the topic. Books and other reference have been primarily
helpful in giving this project a firm structure. Websites, dictionaries and articles have also
been referred. Footnotes have been provided wherever needed, to acknowledge the sources.

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 Chapter 2

Vienna convention

One of the earliest efforts to bring a certainty into the treatment of a Diplomat was the
English Diplomatic Privileges Act, 1708,which prevented ambassadors from other states
from arrests and civil suits. Apart from domestic law universal understanding can be seen in
treaties like the Anglo- Portuguese Treaty, 1809 and the treaty between the Ottoman Empire
and the British Empire in the 17th Century.

The case of Respublica v. De Longchamps 1where American court held that assaulting of the
Consul General of France was in grave breach of the law of nations was a precedent for cases
dealing with diplomatic immunities and privileges.

The first attempt to codify law on diplomatic relations took place in the Congress of Vienna,
1815. The main object of the congress was to bring peace to the European mainland, after the
French revolution and the Napoleonic wars. Adopted on 18 April 1961 implemented on 24
April 1964 Vienna Convention on Diplomatic Relations [VCDR] was adopted due to the
efforts of the International Law Commission [ILC]. ILCs recommendations were accepted
during the United Nations Conference in Diplomatic Intercourse and immunities, at Vienna2.

The treaty is an extensive document, containing 53 articles. A basic overview of its key
provisions is3:

Article 9. The host nation at any time and for any reason can declare a particular member
of the diplomatic staff to be persona non grata. The sending state must recall this person
within a reasonable period of time, or otherwise this person may lose their diplomatic
immunity.
Article 22. The premises of a diplomatic mission, such as an embassy, are inviolable and
must not be entered by the host country except by permission of the head of the mission.
Furthermore, the host country must protect the mission from intrusion or damage. The
host country must never search the premises, nor seize its documents or property. Article
30 extends this provision to the private residence of the diplomats.

1
Respublica v. De Longchamps, 1 U.S. 111 (1784)
2
Vienna Convention on Diplomatic Relations, April 18, 1961
3
Yearbook of the International Law Commission 1961 Volume II

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 Article 24 establishes that the archives and documents of a diplomatic mission are
inviolable. The receiving country shall not seize or open such documents.
Article 27. The host country must permit and protect free communication between the
diplomats of the mission and their home country. A diplomatic bag must never be opened
even on suspicion of abuse. A diplomatic courier must never be arrested or detained.
Article 29. Diplomats must not be liable to any form of arrest or detention. They are
immune from civil or criminal prosecution, though the sending country may waive this
right under Article 32. Under Article 34, they are exempt from most taxes, and under
Article 36 they are exempt from most customs duties.
Article 31.1c Actions not covered by diplomatic immunity: professional activity outside
diplomat's official functions.
Article 34 speaks about tax exemption of diplomatic agents while Article 36 establishes
that diplomatic agents are exempted from custom duties.
Article 37. The family members of diplomats that are living in the host country enjoy
most of the same protections as the diplomats themselves.

Optional protocols

In the same year that the treaty was adopted, two amendment protocols were added.
Countries may ratify the main treaty without necessarily ratifying these optional agreements.
Concerning acquisition of nationality. The head of the mission, the staff of the
mission, and their families, shall not acquire the nationality of the receiving country.
Concerning compulsory settlement of disputes. Disputes arising from the
interpretation of this treaty may be brought before the International Court of Justice.

Developments after Vienna convention

In 1973, the United Nations Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, Including Diplomatic Agents, came into being to
criminalize and curb attacks on diplomats and other protected persons within the receiving
state.The Vienna Convention has also led to states adopting individual legislations which
protect diplomats, for example, the Diplomatic Relations Act, 1978 of the United States and
The Diplomatic Relations Act, 1972 India.

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Rights, Privileges and Immunities of Diplomatic Envoys
The Vienna Convention Articles 20 to 41 of the Vienna Convention on Diplomatic Relations
provides certain rights, privileges and immunities to diplomats with the primary objective to
ensure the efficient performance of the functions of the diplomatic mission.4 States
obligation to protect the personnel of the mission has also been upheld by the ICJ. 5
Concept of immunity and inviolability do not simply mean that a court for the offences they
allegedly commit cannot convict diplomatic agents. They are also immune from the law
enforcement activities of the state itself. The concept of inviolability also attaches to the
legation premises and the archives and documents of the legation whereby it is the duty of the
receiving state to protect the premises, and the documents and archives of the mission, as
well as the the receiving states obligation to protect the personnel of the mission .

Diplomatic Immunity from Civil and Criminal Jurisdictions

There exist two types of immunities from jurisdiction granted by the Vienna Convention on
Diplomatic Relations, 1961. The two types are the immunity from Civil Jurisdiction and the
immunity from Criminal Jurisdiction.

Diplomatic Immunity from Civil Jurisdiction

State was not authorized to control whether the initiation of civil action can be brought
against the concerned diplomatic agent or not. Immunity from civil jurisdiction was designed
so that there is no injury caused by the private suits to external relations of the receiving state.

It was court practice to adhere to the line of absolute immunity, with particular focus in this
respect to commercial and professional activity. It was not until the Vienna Convention on
Diplomatic Relations that there were clear stipulations on the imposition of diplomatic
immunity. Three restrictions were imposed on the immunity from civil jurisdiction.

4
Vienna Convention on Diplomatic Relations, April 18, 1961
5
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ 3, (24 May)

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Article 31(1) of the Vienna Convention on Diplomatic Relations talks about a diplomatic
agent who is to be immune to civil action against him, except in the following
circumstances6:

A real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of
the mission;
An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending
State;
An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his official functions

Diplomatic Immunity from Criminal Jurisdiction

Immunity from criminal jurisdiction is unqualified whereas there are exceptions in cases of
civil and administrative jurisdiction. Most of the courts as well as the commentators of this
subject are in support of absolute immunity from criminal prosecution for diplomatic agents.
Immunity from criminal jurisdiction is derived from the theory of functional necessity that
there should be free and uninterrupted relations between nations and that public order should
be maintained.7
Article 31 of the Vienna Convention on Diplomatic Relations states, A diplomatic agent
shall enjoy immunity from the criminal jurisdiction of the receiving state. This immunity
extends to all kinds of petty offences along with indictable crimes beginning with minor
transgressions of the law with respect to traffic regulations and ending with crimes like
conspiring against the national security of the receiving state or delinquencies against
humanity.
There are two kinds of immunity with respect to the criminal jurisdiction, namely, immunity
ratione personae which relates to with the broad ambit of the conduct of the concerned
official, and immunity ratione materiae which corresponds to the limit of those acts
performed while discharging functions. The former immunity is concerned with the status of
the person whereas the latter looks into the conduct. Immunity ratione personae deals with
foreign criminal jurisdiction over all acts carried out by the concerned official and also deals

6
Vienna Convention on Diplomatic Relations, April 18, 1961
7
http://www.legalserviceindia.com/articles/dhuman.htm

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with the conduct of the official in his private capacity or in his capacity preceding his term of
office.
Immunity ratione materiae deals with the act or conduct of the State officials in the discharge
of their functions. In the Arrest Warrant case, it was held by the International Court of Justice
that immunity from criminal jurisdiction of the office of a foreign minister is not to be
subjected to any kind of exception from commission of crimes under international law.

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 Chapter 3

Rationale behind diplomatic immunity

Three theories, are used to justify diplomatic immunity8:

Representational Theory

Under this traditional theory a diplomatic envoy is believed to personify the sovereign he
represents. Diplomatic agents therefore are given the same degree of privileges which are
given to the Prince or to the Sovereign. The theory is essentially based on the notion that the
representative should be treated as if the sovereign himself was conducting diplomacy. The
representatives privileges are similar to those of the sovereign, and an insult to the
ambassador is an insult to the dignity of the sovereign.

Modern diplomatic practice does not accept this theoretical approach for various reasons. The
personification doctrine is too broad because it places the diplomat above the law of the host
state. Although the personal representative theory extends immunity to official acts, it offers
no theoretical basis for protecting private acts. The main flaw in this approach is that
sovereignty is increasingly vested in the nation rather than a monarch.

Exterritorial Theory

Theory, of exterritoriality, basically proposes that diplomats offices, homes, and persons
are to be treated as if they are on the territory of the sending state. According to this theory,
diplomatic agents are deemed not to be within the territorial jurisdiction of the State where
they are accredited, but to be at all times within that of the sending state. This theory is also
called fictional theory as the notion of extra territoriality is based merely on a fiction.

8
http://www.legalserviceindia.com/articles/dhuman.htm#sthash.9SduiYNr.dpuf

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Theory of Functional Necessity

The theory of functional necessity is currently popular. This approach justifies immunity on
the grounds that diplomats could not fulfill their diplomatic functions without such privileges.
Hence, diplomatic agents are primarily given these benefits because of the nature of their
functions. If diplomats were liable to ordinary legal and political interference from the state
or other individuals considerations of safety and comfort might materially hamper the
exercise of their functions. Thus, functional theory is of practical necessity.

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 Chapter 4

Abuses of Diplomatic Immunities

Today the diplomats along with their families, servants, and other staff members abuse this
privilege for escaping the prosecution from a variety of offenses. The main division of abuses
of diplomatic immunity is done between abuses regarding civil and criminal acts.

Abuses in case of civil liability

Diplomats and the offices in which they work are collectively referred to as a diplomatic
mission. Creditors do not have the right to sue missions individually to get back money they
owe. Therefore financial institutions do not extend any kinds of credit to diplomats, as they
have no legal means to ensure the recovery.

Also diplomats are also exempted from import duty for items for their personal use. This has,
in some countries, led to charges that diplomatic agents are profiting personally by reselling
the "tax free" goods.

Abuses through criminal act

Abuses of diplomatic immunities relating to criminal liabilities can mainly be divided into
two main categories, to using diplomatic bag to smuggle goods either into or out of the
receiving state and crimes that have been committed by the diplomats themselves.

1. Using Diplomat related props to smuggle goods

Diplomats and officials who are involved in drug smuggling benefit from diplomatic
immunity. Such instances are common and can be found in almost every country. Use
of diplomatic boxes, cars and other official objects for smuggling has become really
common.9 Also, in most of the cases, the diplomats are not punished for the same by
the receiving state, due to international laws, and by the sending state, because they
do not want to.10

9
Yuliya G. Zabyelina, The Untouchables: Transnational Organized Crime Behind Diplomatic Intercourse And
Immunities
10
Netherlands Says Venezuelan Detained in Aruba Has Immunity

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 2. Crimes committed by diplomats themselves
It has been observed that the diplomatic agents, on many occasions, have acted as
principal perpetrators.
Paris Iraq Gunfire Incident11
A policeman who was escorting a Palestinian from their embassy was killed by a
gunshot, which was fired from the Iraqi Embassy. Suspects were covered by
diplomatic immunity. French government could Iraqi government to put the three
suspects on trial.
Sri Lanka Burma pyre Incident12
The Burmese Ambassador to Sri Lanka in 1979, got infuriated by seeing his wife
getting out of the car of a night club band member. Next day placed his wifes corpse
on the pyre and set it alight. The police were prevented from entering the embassy as
the diplomat claimed that this was a part of Burmese territory.
United States Brazilian Gunfire Incident13
In 1982, Brazilian Ambassadors grandson shot an American citizen outside a local
club. The victim filed the suit against the ambassador and the country. These charges
were dismissed on the grounds of public immunity.
US India Incident14
In 2013, an Indian consular official Devyani Khobragade was accused of allegations
regarding non-payment of U.S. minimum wages and for fraudulently lying about the
wages to be paid on a visa application for her domestic worker. Thorough
investigation started against her and she was detained, strip-searched and held in a
prison in New York. India registered a strong protest against this investigation process
and initiated a review of privileges provided to American consular officials in India as
a result.

11
Randy G Taylor, Shootout at the Iraqi Embassy in Paris,
http://www.randytaylor.com/scrapbook/IraqiShootout.html
12
Final Approaches: A Memoir by Gerald Hensley, (2006, Auckland University Press, NZ)
13
Veronica L. Maginnis, Limiting Diplomatic Immunity: Lessons Learned From The 1946 Convention On The
Privileges And Immunities Of The United Nations, 28 Brook. J. Int'l L. 989
14
India's foreign minister: Drop charges against diplomat, ., http://edition.cnn.com/2013/12/20/politics/india-
us-diplomat/

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Conclusion

Vienna Convention has largely identified and brought the importance of diplomats to the
international recognition, still it is insufficient in scope and practice, as it does not involve
crimes committed by insurgents or actors within the receiving state but are not in control of
the receiving state. Further, the convention also does not make mandatory the enforcement of
the articles prescribed, and no sanctions are imposed by the international community in case
of violation of the terms of the Convention.
Many states have since adopted specific domestic legislations, which seek to provide criminal
and civil immunities and privileges to the envoys of the sending state. These civil immunities
are diverse and varied, and there is no set standard for the immunities given. There exist
differences in the immunities provided by different receiving states. This sort of disparity is
based on the political as well as societal growth of that particular state.
The criminal immunities provided are a more standardized between states as the violation of
these legal rules would lead to a penalization by way of punishment. Such punishments not
only harm the diplomat, but also the reputation of the sending state. This usually involves a
more aggressive reaction from the sending state, and is relatively more uniform world over.
In conclusion, it can be said that the law on diplomatic relations is highly dependent on a
variety of external factors like the political scenario in individual states as well as stability
between the relations between states. The United Nations is currently involved in the
promotion of diplomacy and resolution of conflicts using the means of diplomacy.

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Bibliography

Diplomatic law, Eileen Denza,Oxford University Press, 2008

An Introduction to:Public International Law, S. K. Verma

Web Sources

https://www.state.gov/documents/organization/150546.pdf

Respublica v. De Longchamps, 1 U.S. 111 (1784)

Vienna Convention on Diplomatic Relations, April 18, 1961
Yearbook of the International Law Commission 1961 Volume II
Vienna Convention on Diplomatic Relations, April 18, 1961
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ 3, (24 May)
Vienna Convention on Diplomatic Relations, April 18, 1961
http://www.legalserviceindia.com/articles/dhuman.htm
http://www.legalserviceindia.com/articles/dhuman.htm#sthash.9SduiYNr.dpur

Yuliya G. Zabyelina, The Untouchables: Transnational Organized Crime Behind Diplomatic

Intercourse And Immunities
Netherlands Says Venezuelan Detained in Aruba Has Immunity
Randy G Taylor, Shootout at the Iraqi Embassy in Paris,
http://www.randytaylor.com/scrapbook/IraqiShootout.html
Final Approaches: A Memoir by Gerald Hensley, (2006, Auckland University Press, NZ)
Veronica L. Maginnis, Limiting Diplomatic Immunity: Lessons Learned From The 1946 Convention
On The Privileges And Immunities Of The United Nations, 28 Brook. J. Int'l L. 989
India's foreign minister: Drop charges against diplomat, .,
http://edition.cnn.com/2013/12/20/politics/india-us-diplomat/

17