Diplomatic immunity refers to the General exemption of diplomatic ministers from

the operation of local law (Black’s law Dictionary). Article 1(e) of Vienna Convention on
Diplomatic Relations defines a diplomat as the head of the mission or a member of
the diplomatic staff of the mission.

Diplomatic personnel are immune, subject to exceptions identified in the Vienna

Convention, from criminal jurisdiction and powers of arrest and detention. The host
state can, of course, declare a diplomat persona non grata and require the sending
state remove him or her. This reflects the fact that there is no right of legation and
all diplomatic relations are based on consent.

According to Malcom Shaw in his book international Law, the special privileges and
immunities related to diplomatic personnel of various kinds grew up partly as a
consequence of sovereign immunity and the independence and equality of states and
partly as an essential requirement of an international system. Under this, the
receiving state is under legal obligation to respect, assist, and protect the diplomat
and not to interfere with their official functions. A diplomatic agent is granted
different inviolabilities and privileges, as well as immunity from the jurisdiction of the
receiving state, in order to enable them to exercise their official functions
independently and effectively and to avoid any interference on the part of the
receiving state. In order to carry out their functions more effectively, states and their
representatives benefit from a variety of privileges and immunities.

Diplomatic immunity for the most part covers the functions, property and conduct of
a state’s diplomatic agents. These prevent interference with the as well as public life
of diplomatic staff and so ensure they are able to carry out their mission (ne-
impediatur legatio.)

The basis of diplomatic immunity as expounded by Tim Hillier in his book

sourcebook on public international law, Cavendish publishing limited London; he
stated that there are three principal theories justifying diplomatic immunity:
i. personal representation;
ii. extra-territoriality; and
iii. functional necessity

Personal representation
This theory dates back to the time when diplomatic relations involved the sending of
personal representatives of the sovereign. Immunity attaching to diplomatic
representatives was seen as an extension of sovereign immunity.

Extra-territoriality
This theory was founded on the belief that the offices and homes of the diplomat
were to be treated as though they were the territory of the sending state. In 1758
Emmercich de Vattel wrote, ‘an ambassador’s house is, at least in all common cases
of life, like his person, considered as out of the country’. The theory always rested on
a fiction and is now no longer respected.

Functional necessity
The most widely accepted current justification of diplomatic immunity is the theory
of functional necessity. This theory provides that the diplomat is not subject to the
jurisdiction of local courts, because this would hamper the functions of diplomatic
relations. The preferred rationale for the privileges and immunities attaching to
diplomats is that they are necessary to enable them perform diplomatic functions.
Modern diplomats need to be able to move freely and be unhampered as they report
to their governments. They need to be able to report in confidence and to negotiate
on behalf of their governments without fear of let or hindrance.

As explained by Lord Sumption in Al-Malki v Reyes [2017UKSC 61; [2019] AC 735,

the legal immunity of diplomatic agents “is one of the oldest principles of customary
international law.” The law is codified in the Vienna Convention on Diplomatic
Relations (“VCDR”), to which over 190 States are Parties. Lord Sumption referred to
the primary rule of interpretation laid down in article 31(1) of the Vienna Convention
on the Law of Treaties (1969). In summary, that provision requires that a treaty shall
be interpreted in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in the light of its object and purpose.

The Vienna Convention on Diplomatic Relations 1961 emphasizes the functional

necessity of diplomatic privileges and immunities for the efficient conduct of
international relations as well as pointing to the character of the diplomatic mission
as representing the state. Article 31(1) provides that a diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State and he shall also enjoy
immunity from its civil and administrative jurisdiction. This was explained in the case
of Wandui V Association for strengthening Agriculture in Eastern and Central Africa
where the question was whether the defendant enjoys immunity from legal process,
the court held that, “the immunities and privileges conferred on diplomatic agent by
virtue of the Act extends to the organizations prescribed in the schedule to these
regulations and to their representatives, officials and employees of those
organizations who are not citizens of Uganda or persons permanently or ordinarily
resident in Uganda.”
The entitlement to privileges and immunities arises from the automatic operation of
the VCDR (given domestic effect by the 1964 Act), not from any ‘grant’ of entitlement
by the Secretary of State.
This provision conforms to the customary rules of international law and the same is
true of the content of those privileges and immunities. The effect of this is that
members of Administrative and Technical Staff and their families enjoy inviolability
and immunity from criminal jurisdiction automatically (i) as a matter of international
law, by operation of Articles 29 to 36 which are all encrypted under 37(2) VCDR; and
(ii) as a matter of primary domestic legislation, by operation of Section 2(1) of the
1964 Act. Although in one sense, the family of a diplomatic agent or member of
members of Administrative and Technical staff enjoy what can loosely be called a
“derivative” set of privileges and immunities under Articles 37(1) and 37(2), it is
clear that the VCDR confers separate entitlements to inviolability and immunity on (i)
the diplomatic agent or member of members of Administrative and Technical Staff;
and (ii) his/her family members. These are distinct and independent entitlements. In
relation to the case of R-Dunn-v-SOS-for-Foreign-and-Commonwealth-Affairs
[2020] EWHC 3185 (Admin) which possessed relatively similar facts, the court had
this to state;
“It only became clear to us that irrespective of the position of Mrs Sacoolas in
relation to immunity, she enjoyed inviolability. Other than however on the
basis that she could have been arrested, detained and charged by the police.”
Similarly, It is a common ground that Mrs Sacoolas could not have been
arrested and detained by the police before she flee for the US.

There were three grounds that were argued, reviewed and resolved in the same case
and this can be summarized to be; Immunity, Unlawful advice/obstruction, Article 2
ECHR.

The main issue in the claim was whether Mrs. Sacoolas enjoyed immunity from
criminal jurisdiction at the time of Harry’s death. The court held that, once the US
Government had exercised its right of appointment under Article 7, and the A&T Staff
and their families arrived in the UK, the UK was bound under international and
domestic law to accord them the privileges and immunities specified in Articles 29-35
VCDR and the 1964 Act.
In regards to ground 2 and 3, court observed that if Ground 1 failed, then these would
also necessarily fail because they’re parasitic on Ground 1. If in fact there was
immunity in law on the part of Mrs. Sacoolas, these grounds lead nowhere.

With utmost protection given to Diplomatic agents in regards to the enjoyment of

their privileges and immunities, the diplomats are under an obligation to respect the
laws of the receiving country since diplomatic immunity is not for personal
inviolability, but is for the efficient performance of the functions of diplomatic
missions as representative States and thus those provided with this immunity are not
expected to abuse it but promote international relations as specified under Article
41(1) of the Vienna Convention of the Diplomatic Relations which states that;

“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. They also have a duty not to interfere in the
internal affairs of that State.”

In the case of Empson V Smith, the judge pronounced that, it is elementary law that
diplomatic immunity is not immunity from legal liability but immunity from suit”. This
means that the diplomatic agents are not above the law, they are under an obligation
to respect the laws and regulations of the receiving state and if they violate the law
they are still liable, but however, they cannot be sued in receiving state unless they
submit to the jurisdiction. This protects the diplomats from being subjected to the
laws of the host country something that protects their privileges and immunities.
Since the rules of diplomatic law constitute a self-contained regime, which on the one
hand lays down the receiving state’s obligations regarding the facilities, privileges and
immunities to be accorded to diplomatic missions and, on the other, foresees their
possible abuse by members of the mission and specifies the means at the disposal of
the receiving state to counter any such abuse.

Article 9 of the Vienna Convention allows the receiving state to declare the person in
question persona non grata (PNG) even in advance of his/her arrival in the receiving
state. The PNG procedure enables the receiving state to declare a member of the
mission unacceptable. (The State Department does not need to offer any reason when
making a persona non grata declaration). This requires expulsion of that member
from the receiving state. A receiving State retains two remedial powers under the
VCDR, the exercise of which may affect the size and composition of the mission. A
receiving State may other than declaring a member of the mission persona non grata
or “not acceptable” under Article 9(1), may also limit the size of the mission under
Article 11(1) (i.e. impose a limit on the number of its members). Once the sending
State appoints a person as a member of the mission, the effect of the VCDR is that
this person will without more be entitled to privileges and immunities upon entering
the territory of the receiving State as provided under Article 39

Article 39(2) of the Vienna Convention on Diplomatic Relations provides that

Immunities and privileges normally cease when the person leaves the country or on
expiry of a reasonable period in which to do so. However, by article 39(2) there would
be continuing immunity with regard to those acts that were performed in the exercise
of his functions as a member of the mission. It follows from this formulation that
immunity would not continue for a person leaving the receiving state for any act
which was performed outside the exercise of his functions as a member of a
diplomatic mission even though he was immune from prosecution at the time. In the
Former Syrian Ambassador to the GDR case, the German Federal Constitutional
Court held that article 39(2) covered the situation where the ambassador in question
was accused of complicity in murder by allowing explosives to be transferred from his
embassy to a terrorist group. He was held to have acted in the exercise of his official
functions. It was argued that diplomatic immunity from criminal proceedings knew of
no exception for particularly serious crimes, the only resort being to declare him
persona non grata.

Article 32 of the Vienna Convention is to the effect that, “the immunity from
jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37
may be waived by the sending State.” This allows the sending state to waive the
diplomat's immunity. One commentator has argued, however, that “a diplomat's law
breaking activity can constitute a constructive waiver of diplomatic immunity.” This
provision allows a sending state to contest civil claims in domestic courts when waiver
would not impede the daily performance of the foreign mission. The Vienna
Convention requires the sending state to make an express waiver of this privilege. The
Vienna Convention on Diplomatic Relations (1961) restricted the privileges granted to
diplomats, their families, and staff. Avoiding controversial issues such as diplomatic
asylum and focusing on permanent envoys. However, diplomatic immunity is not for
personal inviolability, but rather for the efficient performance of the functions of the
diplomatic missions as representative states and thus those provided with this
immunity is not expected to abuse it

In addition to the safeguards, is the Termination of diplomatic relations; the

receiving state can break relations with the sending state under some extreme
conditions necessary for governments to terminate diplomatic relations. Following the
murder of British policewoman, Yvonne Fletcher, by gunfire that came from inside the
“Libyan People's Bureau,” Great Britain terminated diplomatic relations with Libya.
Similarly, the United States, after much internal debate, broke diplomatic relations
with Iran after terrorists seized the United States Embassy in Tehran and held 52
United States nationals hostage. With such happenings, Governments usually as a
matter of course, resort to such a drastic measure.

The State Department Measures possesses wide policy determining powers which
include the mediation of relations between different states. "The State Department
Chief of Protocol, Selwa Roosevelt, testified before a Senate committee on a number
of sanctions available to curtail abuses of diplomatic immunity. The first measure
bars the serious offender from reentering the other state. The State Department
attempts to accomplish this through an automated visa lookout system. The second
sanction addresses the issue of juvenile perpetrators of crime. Under this
sanction, Selwa Roosevelt's testimony cites instances where the Department had
expelled entire families from the United States when the child of the diplomat
perpetrated the crime. This policy seeks to ensure that diplomats, as parents, are
fully accountable for the acts of their children. A third tactic used since 1984
monitors diplomatic traffic violations. The Office of Foreign Missions of the State
Department uses a standardized point system to evaluate diplomats' observance of
traffic regulations. If a diplomat accumulates eight points over a two year period, or
drives even once under the influence of alcohol, the State Department revokes the
diplomat's driving privileges.

Conclusively, following the decision in the case of, R-Dunn V SOS for Foreign and
Common Wealth Affairs, it’s clear that Mrs Sacoolas enjoyed immunity and privileges
from UK criminal jurisdiction at the time of Harry’s death at the time she entered the
country as its compelled by the operation of the VCDR and in addition, her immunity
had not been waived away as demanded under Article 32. This is evident that the
Vienna Convention on Diplomatic Relations (1961) has acted as a great protection
to the diplomats from the laws of the host country by providing them the privileges
equipment to diplomatic missions and relationships among states.