Immunity and Espionage

3.2 International Law

Submitted by:

Pragya Sanchety

UID No. 2019-80

B.A. LL.B. (Hons.)

2nd Year 1st Semester

Submitted To:

Dr. Shuvro Prosum Sarkar

(Assistant Professor of Law)

MAHARASHTRA NATIONAL LAW UNIVERSITY NAGPUR

Contents
Introduction......................................................................................................................................2
Research Methodology....................................................................................................................3
Objectives........................................................................................................................................4
Research questions...........................................................................................................................4
Diplomatic Immunity.......................................................................................................................4
Espionage immunities......................................................................................................................5
Sources of Privileges and Immunities :-..........................................................................................6
Dispute related to Privileges and immunities..................................................................................8
Conventions related to Espionage with reference Cases.................................................................9
Conclusion.....................................................................................................................................13
Introduction
International espionage consists of access to information kept by another State on account of a
State and deemed to be classified or calculated in the military, security or economic fields. This
classical conception has also expanded to include monitoring systems for individuals and
company-to-company corporate espionage introduced by intelligence agencies. This classical
conception has also expanded to include monitoring systems for individuals and company-to-
company corporate espionage introduced by intelligence agencies. Although spying has
generally taken place in physical space for a long time, in the 21st century, it takes place mainly
in cyberspace.

Where the violation of diplomatic immunity is claimed to have occurred, it generally applies to
diplomatic officers who, under the 1961 Vienna Convention on Diplomatic Relations (VCDR),
take advantage of their special status to avoid punishment for “misdemeanours, such as
breaching parking rules, shoplifting, etc.”1, even for more severe offences. But governments
who, in exchange for favours, offer diplomatic immunity to those who do not clearly fulfill
diplomatic functions or, in abnormal circumstances, discharge any of them, and may be
sufficiently shielded by other legal means, are therefore abusing diplomatic immunity 2. Both
forms of violence conflict with a vital concept and thus jeopardise its implementation in
situations where it is right.

There are different elements of espionage regarding its intent, techniques, and practise, but the
important thing to remember is that spying is never expressly discussed in international law in
the absence of war. A deeply debated topic is the intersection of international law with peacetime
espionage, with varying levels of legal scholars’ agreement. There are different explanations and
evaluations of the UN Charter and other sources of international law in the cases for and against
the legality of spying in state practice.

The purpose of my paper is to focus on spy activities performed by other state on other state, and
what all immunities or diplomatic immunities spies have. The analyses provided then focused on
general international law and on the principle of state sovereignty. Since the 9/11 attacks, leading
to the introduction of advanced surveillance technologies to deter terrorism, the issue of spying

1
https://www.e-ir.inf, (Visited on September 12, 2020).
2
https://www.diplomacy.edu, (Visited on September 12, 2020).

1
has also gained new attention. Similarly, the emergence of digital technology and electronic
media has expanded potential for mass surveillance.

Research Methodology
Doctrinal research is concerned with facts and doctrines. It is research into the deep concepts it is
also known as library based research. My research is doctrinal research in which methodology is
based on principles, legal concepts and doctrines and rules. These all the databases are authentic,
and many internationally followed websites and databases. My research is based on different
books and authentic sources. I have analyzed books and these books helped me in designing my
paper and finding relevant materials for my paper.

Objectives
1. To explain about diplomatic immunities.
2. To explain about privileges and immunities of a spy.
3. Conventions of espionage immunities.

Research questions
1. What are the immunities provided to diplomats?
2. What are the immunities of espionage, and if violated then what are the consequences?
3. What are the conventions violated, in reference to immunities?

2
Diplomatic Immunity
Diplomatic immunity is a type of legal immunity that guarantees that diplomats are granted safe
passage and, while they can still be extradited, are not deemed vulnerable to arrest or arrest under
the laws of the host country3. Many concepts of diplomatic immunity are now known as
customary legislation. As an institution, diplomatic immunity was established to allow
government ties to be preserved, particularly during times of difficulty and even during armed
conflicts.4

There are diplomatic immunities and privileges, Right of official communication:- Article 27 (1)
“the receiving state State shall permit and protect free communication on the part of the mission
for all official purposes”,5 (2) “The official correspondence of the mission shall be inviolable.
Official correspondence means all correspondence relating to the mission and its functions.” 6
Article 31 (1) says that “A diplomatic agent shall enjoy immunity from the criminal jurisdiction
of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction
exceptions applied”. 7

Espionage immunities
Firstly, the question is who is a spy? According to Hague regulation of 1907 the spy is a person
who secretly or “under false pretences” obtain information, to communicate it to hostile party.
“disguise” or “false pretense” are essential element of espionage 8 and secrecy means obtaining
information secretly is not a spy.9

When countries conduct intercourse beyond their territorial limits, the call for transnational
representation is critical if the national goals are to be achieved. In order to meet this
requirement, the world community has.10 It gave international organizations a special regime for
diplomats, consuls, and representatives. In the standard act of countries, the domestic laws of the
3
Christopher D. Baker, “Tolerance of International Espionage: A Functional Approach.” American University
International Law Review 19, 2003.
4
Simon Chesterman, “The Spy Who Came in from the Cold War: Intelligence and International Law.” Michigan
Journal of International Law 27, 2006.
5
https://legal.un.org, (Vienna Convention on Diplomatic Relations 1961), (Visited on September 14, 2020).
6
Ibid.
7
Ibid.
8
Article 29, Regulations respecting laws and customs of war on land annexed to Hague Convention IV, 1907.
9
Ingrid Delupis, “Foreign Warships and Immunity for Espionage”, American Journal of International Law, JSTOR,
2015, p. 51.
10
M. E. Bowman, ‘Intelligence and international law’, International Journal of Intelligence and Counterintelligence,
1995, pp. 321-335.

3
getting states, and global and two-sided treaties, the sources of these benefits and immunity are
found. The domestic grant provides for criminal and civil immunity staff of the sending state
who have been authorized by the receiver State and accordingly meet all requirements for such
security.

There is violation of all diplomatic rights. “If the receiving State invokes immunity for
espionage, an act beyond official duties, it takes place.” 11 The special value of its diplomatic
security. The rights and privileges have been violated. Immunities recognized on the
international plane by the law of nations and the receiving state, with associated repercussions.
The receiving State shall, in such a case, be supported in starting defensive measures by
removing measures to shield data critical to its national security, The rights and immunities for
spy offences.12 The Receiving Condition It has the right to amend its domestic laws, an act that
can repeal its commitments of the Treaty on rights and immunities. 13 The rejection of immunity
will be subject to domestic penalties for criminal protection for treason which would act as a
safeguard towards potential violations of rights which immunities. In the field of civil law, since
exceptions to immunity have been made, in the criminal region, a corresponding exemption
seems warranted.

Before the abolition of espionage protection, such a change must be to the State’s advantage.
Because of the powerful position of the United States in the world, combined with its superior
ability to gather information, it is one of many States that are willing to take such unilateral
action. Effective espionage activities require comprehensive resources and support resources that
are currently available, given by the mission of diplomacy. Hostile collectors targeting the
United States will be denied diplomatic collectors by banning this ability. Privileges and
immunities and being compelled to act separately from the structure of diplomacy.14

11
S. Chesterman, “The Spy Who Came in from the Cold War: Intelligence and International Law”, Michigan
Journal of International Law, 2006.
12
A. Deeks, “An International Legal Framework for Surveillance”, Virginia Journal of International Law, 2015.
13
T. J. I. Jackamo, “From the Cold War to the New Multilateral Order: The Evolution of Covert Operations and
Customary International Law of Non-intervention”, 1992, Virginia Journal of International Law.
14
McDougal, M. S., Lasswell, H. D. and Reisman, W. M. , “The Intelligence Function and World Public Order”,
Faculty Scholarship Series, 1973, 365-448.

4
Sources of Privileges and Immunities :-
1. Domestic – Diplomatic privileges and immunities make up a long-established portion of
domestic rule of the United States. “The right to legislate immunity is extracted from the
Constitution,”15 with a restriction on the inviolability of immunity. Diplomatic officers
are focused on the principles of international law.
2. Treaties – To ensure the mutual grant of rights and immunities by the United States. The
United States has joined treaties with grants from states to foreign diplomats Treaties
with other states. The Convention of Vienna on diplomatic relations pursuant to
relations and the Vienna Convention on Consular Relations, to the diplomatic and
consular culture, rights and immunities. Similar grants are given to members of the
United Nations under the Charter of the United Nations and the United Nations
Convention on Rights and Immunities, which strengthen the law of domestic immunity.
The rights and immunities found in these articles are relative to those of three fields:
responsibilities, duties, and laws and regulations.16
(a) Functions – The Charter of the United Nations shows the functional immunities in
that the Organization shall enjoy such pleasure throughout the territories of each of its
Members. The rights and immunities required for the fulfilment of its objectives. The
Rights and Immunities Convention, the Diplomatic Convention and the Consular
Convention have similar protections. Specific functions are not defined in the Charter
of the United Nations.17 In the conventions or by agreement between the sending and
receiving State, but are delineated. The Consular Convention and the Diplomatic
Convention, the latter of which provides for a notable dedication, are found in “The
function of a diplomatic mission consists in ascertaining by all lawful means
conditions and developments in the receiving State, and reporting thereon to the
Government of the sending State.” 18 However long the diplomatic officer is involved
in an operation that promotes. The role of the sending state as recognised by the
treaty. It is exempt from the jurisdiction of the sending State, the sending State.

15
Arber Ahmeti, “Question on legality of espionage carried out through Diplomatic Missions”,
https://www.iapss.org, (Visited on September 25, 2020).
16
Ibid.
17
https://www.cia.gov, (Visited on September 23, 2020).
18
https://www.e-ir.info, (Visited on September 23, 2020).

5
 (b) Missions - With regard to the offices and residences associated with the treaties
provide for the organization’s premises, diplomatic missions, there should be no
abuse of the mission. The goal of setting up a mission determines its position, which
will, in turn, explain how the premises should be used. The Diplomatic Convention
represents a standard provision: “The premises of the mission must not be used in any
manner incompatible with the functions of the mission as laid down in the present
Convention or by any other rule of general international law or by any special
agreement in force between the sending and the receiving State.”19
(c) Laws and Regulations –The third point that relates to benefits and immunities is the
prerequisite that the diplomatic and consular community regard the laws and
guidelines of the accepting State. This prerequisite is explicitly set out in the
diplomatic convention: “Without prejudice to their privileges and immunities, it is the
duty of all persons enjoying such Privileges and Immunities to respect the laws and
regulations of the receiving State.”20 This responsibility to comply with the laws is
not a moral obligation, but a duty enforced by a treaty that has the force of law.
Because the drafters have distinguished the responsibility from the benefits and
immunities, their privileges and immunities would not be jeopardised if a diplomat
violates that responsibility. Yet the sending State has committed to a specified mode
of conduct.21

Dispute related to Privileges and immunities

Owing to their protected status, diplomatic and consular personnel remain immune from
prosecution for espionage, a defense that promotes criminal action. In order for the receiving
State to resolve the condition, it must first be justified to revoke the rights and immunities. Under
current international law, the receiving State must show enough that its position has been
violated by diplomatic collectors. Such a display could cause a dispute with domestic laws which
would be a violation of treaty law in itself. In the case of spying, as one contrasts the domestic
immunity laws of the United States, a controversy occurs. Immunity is granted so that the
sending state will be able to perform its tasks and the right will prevail as long as within the

19
Supra Note 15.
20
Supra Note 16.
21
https://core.ac.uk, (Visited on September 26, 2020).

6
official duties the reasons for and the outcomes of the security laws are conflicting, including
spying, done by Ambassador.

At the point when a diplomatic official commits espionage and afterward uses the omnipresent
defense of criminal immunity, the sending State, by conjuring immunity for the demonstration, is
proposing that the demonstration falls inside the extent of those exercises secured by the political
status, i.e., that it is a legitimate capacity. Such a position might be the unannounced purpose of
the sending State, however it can barely be shared by the harmed State whose public security has
been harmed and whose characterized data has been undermined. In the event that espionage is
certainly not a legitimate and perceived capacity of the mission in the host nation, the sending
State intentionally has disregarded its treaty terms. Such an infringement would not have
happened had not the sending State mishandled its benefits and immunities.

Conventions related to Espionage with reference Cases

In order to assess the legitimacy of espionage under international law, it is necessary to first look
at any reference made to the definition by international law. Spying has existed as a dishonest
and dangerous profession since the dawn of history, but in the repercussions of World War II, the
international community entered an era committed to preserving stability, security, and
international standards. At present, however, espionage has not been discussed in this modern
period, thus remaining only expressly accepted under the law as an art of war. In addition, the
law dealing with espionage only mentions the prisoner status: spies do not have the same identity
as scouts during wartime due to the deception level that follows their activity. “The Geneva
Convention of 1947 and the additional Protocol I added later discuss the treatment of spies upon
capture hinging on the circumstances in which they are discovered.” 22 International law’s
discussion of spy treatment during wartime implies an implicit legality of the practice;
nevertheless, it is still not expressly deemed legal and due to the dominance of state sovereignty,
the application to peacetime spying is largely insignificant.

International commitments to uphold the integrity of a state, the self-determination of peoples

and the removal from the use of force are in conflict with the key objective of active activities: to
control or to affect a sovereign state. Article 2(4) of the Charter of the United Nations23 expressly
22
https://treaties.un.org, Treaty Series, Vol. 596, p. 261. (Visited on September 26, 2020).
23
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,
http://www.un.org/aboutun/charter (Visited on September 15, 2020).

7
forbids States from using or threatening the use of force which, without the authorization of the
United Nations Security Council (Chapter VII), directly in violation of international law, will
carry out operations using force.

“Diplomatic reporting is defined by Vienna Convention on Diplomatic Relations of 1961

(VCDR), and Vienna Convention on Consular Relation of 1963.” 24 According to the VCDR,
diplomatic missions to the receiving state have the right to install and use a state-approved
wireless transmitter device, and VCDR also grants the confidentiality of information transmitted
from diplomatic missions to the sending state through transmitting lines or other methods. The
right to diplomatic reporting may be limited only by Article 51 of the Charter of the United
Nations25 and, thus, by Article 51 of the UN Charter can be justified for self – defense.
According to the VCDR, reporting is a lawful feature of diplomatic missions, and hence Article
3(1)(d) states that “Ascertaining by all lawful means conditions and developments in the
receiving State, and reporting thereon to the Government of the sending State”. “Article 41
VCDR sets a very important principle by stating that it’s duty of diplomatic missions of sending
states to respect laws and regulations of the receiving State and not to interfere in the internal
affairs of that (receiving) State.”26

Comments on the ILC The draft Articles on Diplomatic Intercourse and Immunities of 1958 set
out the extent of Article 3(1) and the limits of the reporting feature by interpreting the expression
“conditions and developments” and resulting that the term itself encompasses the country's
political, cultural, social and economic activities and, in general, all aspects of life that may be of
interest to it. “Nevertheless, Article 41 and 42 of the VCDR 27 codified the core rules relating to
the duties of diplomatic missions to the receiving State, which were already common law, such
as the obligation to comply with the laws and regulations of the receiving State, the obligation
not to interfere with internal affairs and the obligation not to abuse diplomatic premises for
illegitimate purposes.”

Regardless of the laws banning spying carried out by diplomatic missions, the beneifts and
immunities given to diplomatic missions and their personnel directing the way for illicit

24
Supra note 22.
25
Supra note 23.
26
https://lexlife.in, (Visited on September 27, 2020).
27
Supra note 22.

8
intelligence operations, concluding in violations of the domestic laws of the host state and of the
principles of international law.28 Spying through diplomatic missions or other methods has
become a standard state practice, as Oppenheim stipulated that “sending spies to another state
even though it is not considered wrong either morally or politically and legally”.29

Kulbhushan Jadav Case (India v. Pakistan)

Kulbhushan Jadhav Case (India v. Pakistan) the former Indian Navy officer is Kulbhushan
Jadhav, charged of spying for India’s intelligence agency, the Research and Analysis Wing. The
Pakistani military court convicted Jadhav on charges of “espionage and terrorism.” 30 On May 8,
2017, India transferred the ICJ to Pakistan for the grave breach of the terms of the Vienna
Convention by repeatedly refusing consular access and the process of resolution to Jadhav in
New Delhi. In the light of two cases involving Indians in Pakistani prisons, the ICJ may order
Pakistan to hold a new trial for Jadhav.

India seeks relief by way of compensation in integrum by announcing that sentence by military
court is violative of Vienna Convention rights under Article 36, paragraph 1 (b),31 human rights
of an accused which is violative of Article 14 of ICPPR. And there need to be instant
postponement of the death sentences awarded to the accused, by the military court, failing in
which will declare the decision illegal, violative of international law and Vienna Convention.

Article 36 (1) of the Statute of the Court confers upon this Court the jurisdiction to decide “all
matters specially provided for in treaties and conventions in force.”32 “Both India and Pakistan
have also accepted the compulsory jurisdiction of the Court under paragraph 2 of Article 36” 33 of
the Statute subject to declarations in which they recognize as compulsory ipso facto and without
special agreement, in relation to any other State accepting the same obligation, the jurisdiction of
the Court.”34 This question is not res integra anymore. In the case relating to Border and
Transborder Armed Acts (Nicaragua v. Honduras)35, the Court concluded that the jurisdiction

28
https://core.ac.uk, (Visited on September 18, 2020).
29
https://repository.law.umich.edu, (September 20, 2020)
30
https://economictimes.indiatimes.com, (Visited on September 17, 2020).
31
https://www.icj-cij.org, (Visited on September 21, 2020).
32
Ibid.
33
https://legal.un.org, (Visited on September 26, 2020).
34
https://thewire.in, (Visited on September 20, 2020).
35
Nicaragua v. Honduras, ICJ GL No 120, ICGJ 23 (ICJ 2007).

9
established by the Pact of Bogota was “unrestrained of the declarations of compulsory
jurisdiction as may have been made under paragraph 2 of Article 36.

India placed Pakistan before the ICJ for breaching Article 36 of the VCCR, which states that
consular officers should be allowed to meet their nationals in a foreign state and have access to
them. Article 36 (2) states that the rights in paragraph 1 “shall be exercised in conformity with
the laws and regulations of the receiving state, subject to the proviso, however, that the said laws
and regulations must enable full effect to be given to the purposes for which the rights accorded
under this article are intended”. In the Appeal concerning the authority of the Council of the
ICAO (India v. Pakistan)36 apart from challenging the jurisdiction of the Court pursuant to
Article 84 of the Chicago Convention and Article II, Section 2 of the Transit Agreement (the so-
called ‘jurisdictional clauses of the Treaties’), Pakistan also relied on India's reservation to its
recognition of the compulsory jurisdiction of the Court pursuant to Article 36, paragraph 2.

Submissions made by Pakistan

India challenged the operation of the infamous military courts of Pakistan and urged the ICJ to
annul the death sentence of Jadhav, which is based on an “extracted confession”, means “A
forced confession is a confession obtained from a suspect or a prisoner by means of torture
(including enhanced interrogation techniques) or other forms of duress.” 37 India seeks remedy
from this court which they cannot assert. The lawyer requested the ICJ to reject India’s request in
the case, arguing that the military court in Pakistan operates according to the Constitution.
Jadhav was charged with terrorism, for which a FIR was registered with a civilian police
department. The military courts have ample proof of spying and the military court has declined
to do soon the available evidence and the judicial confession has continued to convict him, while
he has been given the option of going for judicial review. India claims for “consular access”, 38
has not been permitted for good reason under the 2008 agreement (“India and Pakistan inked a
bilateral agreement on Consular access to their prisoners in each other’s countries”), especially
because of the involvement of Commander Jadhav in espionage. Pakistan further argued that
Article 36 of the VCCR is “not concerned until and unless the” sending state “presents proof of

36
Council of the ICAO (India v. Pakistan), [1972] ICJ Rep 46, ICGJ 148 (ICJ 1972).
37
Shubhajit Roy, “A Pakistan lawyer for Kulbhushan Jadhav and other developments”, 2020.
38
Indrani Bagchi, “How India won Kulbhushan Jadhav's case against Pakistan at the International Court of Justice”,
2019.

10
the individual’s nationality.” Islamabad claimed that it was sufficient for the ICJ to dismiss the
case on the grounds of either “abuse of process,” “abuse of rights” or “unclean hands,” even
though the Indian government had “merely facilitated” Jadhav’s travels.39

Decision

A relief in integrum40 by way of restitution by announcing the penalty of the military court in
blatant violation of the privileges of the Vienna Convention, pursuant to Article 36, and the
immediate suspension of death sentence. In 2004, ICJ had ruled in the ‘Avena case’ (Mexico v.
U.S.A),41 that US had violated Vienna convention by not giving consular admittance to Mexico
for lattter's 50 – odd nationals who were on death columns in different American states. In
Lagrand case (Germany v. U.S.A.)42 US deprived two German brothers from getting consular
assistance, violation Article 36 of Vienna convention.43 In the event that Pakistan can't invalidate
the decision, this Court will announce the decision unlawful as a breach of global law and the
privileges of the Treaty and shall prohibit Pakistan from acting in breach of the Vienna
Convention and worldwide law by offering impact to the sentence or conviction in any capacity
and order Pakistan to immediately deliver the convicted Indian national.

Conclusion
In the twenty-first century, the rising importance of human rights and the preservation of peace,
stability and friendly relations would increase the need to establish and control activities such as

39
https://www.aljazeera.com, (Visited on September 24, 2020).
40
Supra note 31.
41
Avena case (Mexico v. U.S.A), [2004] ICJ Rep 12.
42
Lagrand case (Germany v. U.S.A), ICJ GL No 104.
43
https://opil.ouplaw.com, (Visited on September 26, 2020).

11
espionage by international law, often involving the political will and agreement of the
international community as a whole. There is a substantial impact on spying that it works on a
legal-until-caught basis; but this presumption will eventually open up a whole new debate with
suggestions of legality in practice, especially with the capabilities demonstrated by cyber
intelligence and cyber operations that were unforeseen by the UN Charter.

It is possible for the home country of the official to waive immunity; this appears to happen only
when the person has committed, or has experienced, a serious crime, unrelated to their
diplomatic position (as opposed to, say, charges of spying). However, as a matter of course,
many nations refuse to waive immunity; individuals have no power to waive their own
immunity. The home country can, alternatively, prosecute the individual. If a country waives
immunity in order to prosecute a diplomat (or members of his family), it must be because there is
a case to answer and it is in the public interest to prosecute them. For example, in 2002, a
Colombian diplomat was tried in London for manslaughter after Colombian diplomatic
immunity was waived.

12