uttara university

Assignment On: Public International Law P-II

Course Code – LLB1003

Assignment Topic: "A critical study on immunities and

privilege of diplomatic agent under international law."

Submitted To: Md. Imam Hossain

Assistant Professor
Department of Law,
Uttara University
Submitted By: Nurul Absar
ID: M21513411044
Batch: 44(34th),
Semester: Summer
A critical study on immunities and privilege of diplomatic agent
under international law.
Introduction:
Modern states possess wide jurisdictional authority over their national domain.' This authority
normally extends to persons, both nationals and aliens, residing within a country and to
property located therein. That a nation rules over all persons and things within its territory
constitutes one of the basic principles of international law. For a variety of reasons, however,
states have accepted limitations upon their jurisdiction. One of these limitations is the special
legal status of diplomatic representatives.' Under customary international law, diplomatic
envoys are granted certain privileges and immunities from the normal legal processes of the
state to which they are accredited. The concept of diplomatic immunity constitutes one of the
oldest parts of international law, originating even before the rise of the modern state. Since the
end of World War I, a new type of international entity has appeared in the form of the
international organization. In order to function effectively, these organizations must enjoy a
large degree

Immunities and privilege of diplomatic agent:

For the purpose of understanding the legal status of temporary representatives, a comparison
of the immunities and privileges which the host state extends in normal diplomatic practice to
accredited diplomatic agents with those which it extends to temporary representatives is
valuable. The customary rules of diplomatic privileges and immunities codified in the Vienna
Convention of as a basis for comparison.

Different international jurists have divergent views as to the basis for giving immunities to
diplomatic agents. Their views led to the emergence of three important theories which are as
follows:

Extra-territorial Theory: This theory is also known as the fictional theory. According to this
theory, diplomatic agents are considered not be within the territorial jurisdiction of the State to
which they are accredited, but to all times within that of the sending State. Extra- territorially of
diplomatic agents means that though diplomats physically present upon the soil of the country
to which they are accredited but they remain for all purposes on the soil to which they
represent.

Representational Theory: According to this theory, diplomatic agents are regarded as personal
representative of the sovereign of the sending State. Therefore, they are given the same degree
of privileges and rights which are given to the head of sending State.
Functional Theory: According to this theory, diplomatic agents are given immunities because of
the nature of their functions. The duties which the diplomats perform are far from easy. In
other words, their actions of duties are of typical or some special nature. They are allowed
immunities from the legal and other limitations of the State to which they are accredited to
effectively perform the tasks they are allotted.

Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and privileges
which are granted to diplomatic agents. They are as follows:

Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle which is

recognized in International Law much before the adoption of the Convention of 1961. Article 29
of the Vienna Convention lays down that “the person of a diplomatic agent shall be inviolable”.
He shall not be liable to any form of arrest or detention, and the receiving State shall treat him
with all due respect and should take all appropriate to prevent an attack on his personal
freedom and dignity.

The Government of receiving State by virtue of Article 29 is under a duty to conduct to abstain
from any form of conduct which is injurious to the diplomatic agents and also under a duty to
prevent such injurious conduct if attempted by another.

This does not mean that the immunity given to the diplomats is absolute. The receiving State
has the power to arrest or detain the diplomatic agent in exceptional cases For instance, a
drunken diplomat with a loaded gun in a public place can be arrested or if a diplomatic agent
commits an act of violence which disturb the order and peace of receiving State in such a
manner that it becomes necessary to put him under restraint for the purpose of preventing
similar acts.

So if the son of a diplomat is studying in any University of receiving State and just come on
weekends to meet his parents, then he will not be provided with any immunity as he is not
forming the part of the household.

Inviolability of premise: Article 21 of the Vienna Convention lays down that, “a permanent
diplomatic mission needs premises to operate and receiving State must help the sending State
to obtain the premises form mission”. The sending State has the right to use its flag and
emblem on the premises (Article 20). Article 22 of the Vienna Convention of Diplomatic
Relations stipulates the customary rule of International Law by stating that “the premises of the
mission shall be inviolable”. Further Article 30 also provides that “private residence of a
diplomatic agent shall also enjoy inviolability”. The agents, police or any officer of the receiving
State are not allowed to enter the premises without the consent of the head of mission.
However, the inviolability of premises is also not absolute it can be compromised in certain
exceptions. Article 41 of the Convention itself lays down that “premises of the mission should
not be used in any manner as incompatible with functions of mission or by rules of general
International Law”. So, if the inviolability of premises is abused then the receiving State should
not bear it passively and can take all the necessary steps to stop the actions of agents.

Inviolability from being a witness: Diplomatic agents are completely immune from being a
witness in any civil or criminal or administrative court of State to which they are accredited. He
is also immune from giving evidence before the Commissioner. However, they may appear
before any court by waiving of their immunity. Article 31(2) lays down that “diplomat agent is
not obliged to give evidence as a witness”.

Immunity from taxes and customs duties: Article 34 of Vienna Convention lays down that,
“diplomatic agents shall be exempted from all dues and taxes, personal or real, national,
municipal or regional”. Initially, before the convention, this right was given to the agents due to
Courtesy but Convention has incorporated it with more precise definition.

Immunity from inspection of Personal Baggage: The bag used by the diplomatic agents for
sending articles, letters or documents to the sending states or any other missions of its State to
abroad be known as a diplomatic bag. Para 3 of Article 27 of the Vienna Convention lays down
that “diplomatic bag should not be opened or detained’. But according to Article 36 Para 2, this
right is not absolute. It lays down that, “general practice of exempting the diplomats’ personal
baggage from a custom inspection is qualified by the provision that inspection can be
conducted in presence of a diplomatic agent or his agent if there are serious grounds for
suspecting that the article is not for official use”.

Freedom of Communication: Diplomatic agents are free to communicate any information for
official purposes to the State by which they are accredited. Article 27 of the Vienna Convention
lays down that “the freedom of communication also involves the use of code messages and
couriers”.

Freedom of movement and travel: Article 26 of Vienna Convention empowers diplomatic

agents to move and travel in the territory of receiving State but subject to laws and regulations
of International Law and rules made by receiving State concerning security zone.

Right to worship: Under Article 3(1) of Vienna Convention diplomatic agents have the right to
worship any religion they like within the mission premises or residence. But they cannot invite
any nationals of the receiving State to take part in the worship and have no right to preach their
religion in receiving State.

Immunity from the Local Jurisdiction: Diplomatic agents enjoy immunity from the jurisdiction
of local courts. The immunity extends both to criminal as well as civil jurisdiction.
Article 31, paragraph 1 of the Vienna Convention provides that a diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State. Thus, receiving State has no right
to prosecute and punish diplomatic agents. Immunity of diplomatic agents from civil and
administrative jurisdiction also a well- recognized principle of International Law.

Conclusion:
Diplomats are provided immunity to effectively perform their function because of the typical
nature of functions and diplomat being the representative of the head of State. All the rights
and immunities provided to the diplomats are not absolute they can be compromised within
certain exceptions. At present, the institution of diplomatic representatives has become the
principal machinery by which intercourse between States is conducted.