Public International Law

IA -1

Understanding Diplomatic Immunities and Privileges in International Law

SUBMITTED BY

JLU05831

2020BALLB084

ABHISHEK PARMAR

B.A.LL. B. (HONS.), VIIth SEM.

JAGRAN LAKECITY UNIVERSITY, BHOPAL

 Understanding Diplomatic Immunities and Privileges in International Law

Introduction
The idea of diplomatic immunity is an ancient concept rooted in the mutual understanding
between diverse societies. It originated from the notion that one society could appoint a
representative to negotiate and advocate on its behalf, serving as a crucial tool in the history
of international relations. As interactions between societies became more interconnected, the
necessity for diplomatic instruments became increasingly apparent. Consequently, this
concept evolved from customary practice to a structured framework through various treaties.
Today, diplomatic relations between countries stand as a cornerstone of international affairs,
with diplomatic agents advocating for their respective states' interests, contributing
significantly to the construction of a peaceful, globalized world.
In the realm of international law, diplomatic immunity entails the exemption from a host
country's jurisdiction or coercive authority, which is granted to specific individuals in
accordance with customary international law and/or international agreements. Diplomatic
personnel are granted immunity for their actions, both within and outside their official duties,
while consular staff typically enjoy immunity only for actions performed in the line of duty.
Distinct levels of immunity are also applicable to other categories, including officials of
international organizations. Another facet of immunity is inviolability, safeguarding against
unwarranted interventions, whether personal, as in the case of diplomats, or involving
property, such as embassy buildings or archives. Even foreign enemy warships are generally
considered inviolable. Nevertheless, preventive measures should be implemented when
necessary, such as detaining a drunken diplomat to prevent further harm. It's important to note
that flagrant abuses of immunity may lead to its suspension, although this does not exempt
the individual from prosecution in their home country. Despite their privileged status, those
enjoying diplomatic immunity are still obligated to respect and adhere to the laws of the host
country.1
The significance of diplomatic agents is widely acknowledged, but the concept of personal
immunity within diplomatic immunity raises questions, especially when considering the
unequal application of legal privileges. This raises concerns about whether the concept of
diplomatic immunity aligns with the principle of "equality before the law." In this thesis, we
will critically examine the concept of diplomatic immunity from various angles to assess its
viability in today's society.

Vienna Convention on Diplomatic Relations

The preamble of the 1961 Vienna Convention on Diplomatic Relations, commonly referred to
as the Vienna Convention, acknowledges the historical recognition of diplomatic agents'

1
immunitet. http://www.ne.se/lang/immunitet/210620, Nationalencyklopedin, (Accessed on 8 th October 2023).
status by people from various nations throughout history. Expanding upon this
acknowledgment, diplomatic immunity has long been an integral component of diplomatic
relationships and is considered one of the oldest aspects of International Law. When states
concentrated in a specific geographic area and shared commonalities such as language,
culture, or religion, interactions among them were inevitable 2. Over time, envoys were
carefully selected and dispatched to convey messages, receive responses, and report on
developments in foreign states. These diplomatic functions gave rise to established customs
governing the treatment of ambassadors and other special representatives from foreign
states3.
The necessity of ensuring the safety and effectiveness of diplomatic envoys compelled most
states to grant them fundamental protection, both within the host state and during transit
through other states4. The unique immunities and privileges associated with diplomatic
personnel evolved, in part, as a consequence of principles like sovereign immunity and the
independence and equality of states. With the establishment of permanent missions, sovereign
states recognized the significance of having ambassadors stationed in foreign states for
negotiation and information-gathering purposes.
While customary International Law continues to shape the concepts of diplomatic immunity,
today, the Vienna Convention serves as a codification of these customary practices and is
universally accepted as a concrete body of International Law.
Fifty years after its adoption, the 1961 Vienna Convention on Diplomatic Relations (VCDR)
has emerged as a fundamental pillar of contemporary diplomatic interactions. This
Convention outlines the fundamental framework for establishing, sustaining, and concluding
diplomatic relations5. It delineates the roles of diplomatic missions and, at its core, delineates
the privileges and immunities accorded to diplomats. In practical terms, the Convention's
articles serve as a reference guide for foreign ministries worldwide, and its stipulations are
widely regarded as the minimum standard in diplomatic practice. The swift ratification, near-
universal acceptance, and high level of compliance have transformed the VCDR into one of
the most successful United Nations treaties, symbolizing the codification and progressive
evolution of international law. Nonetheless, our understanding of the conference that gave
birth to this successful Convention remains incomplete, primarily relying on articles
published in the 1960s, with few exceptions.

Drafting of Vienna Convention6

 In 1949, at its inaugural session, the International Law Commission (ILC) tentatively
selected "diplomatic relations and immunities" as one of the 14 themes for potential
codification.
2
Hastings International & Comparative Law Review, 21(3), 565-596.
Available at https://repository.uchastings.edu/hastings_international_comparative_law_review/vol2. (Accessed
on 8th October 2023).
3
Shaw M.N (2003), International Law. 5th Edition, Cambridge University Press, London.
4
Brooklyn Journal of International Law, 28(3). Available at
https://brooklynworks.brooklaw.edu/bjil/vol28/iss3/6. (Accessed on 8th October 2023).
5
United Nations, Audiovisual Library of the United Nations: Vienna Convention on Diplomatic Relations,
Vienna, 18 April 1961. http://untreaty.un.org/cod/avl/ha/vcdr/vcdr.html. (Accessed on 8th October 2023).
6
Ibid
  It wasn't until the ILC's sixth session that they officially decided to commence work
on this topic. However, the subject wasn't thoroughly examined until the Ninth
Session in 1957.

 During the same year, the Secretariat released a comprehensive compilation of

national legislation and regulations, outlining state practices related to this area.
Following discussions in the 10th session, the ILC updated the articles and forwarded
the Draft Articles on Diplomatic Intercourse and Immunities to the General Assembly.
The General Assembly then resolved to convene a meeting in Vienna, with the aim of
proposing a convention to the Member States.
 The United Nations Conference on Diplomatic Intercourse and Immunities took place
at the Neue Hofburg in Vienna from March 2 to April 14, 1961. This conference
involved representatives from 81 States and utilized the ILC's draft charter as a
starting point for its deliberations. There were challenges in reaching an agreement
over the provision concerning the International Court of Justice (ICJ) for the
mandatory resolution of disputes. Consequently, the parties opted for an optional
protocol instead.

Scope of the Convention7

 The Convention outlines the principles of international law that govern the operations
of permanent missions in foreign countries.
 The Convention's preamble underscores the continued relevance of customary norms
for matters not explicitly addressed within it. This recognition stems from the
substantial body of customary international law on this subject and the potential
ambiguity within some of its provisions.
 While the Vienna Convention on Diplomatic Relations holds great importance within
the realm of diplomacy, it should be noted that it does not offer a comprehensive
guide that covers all aspects of diplomatic relations.

Content of the Convention8

 The Convention comprises an introduction and 53 articles. Among its 53 provisions, it
oversaw and standardized various regulations concerning ambassadors and diplomatic
missions. All nations that became signatories to this treaty were bound by these rules,
regardless of whether they were dispatching a diplomatic envoy or hosting a
missionary from another country.
 The responsibilities of the host nation are delineated in the Convention. It places the
onus on the nation to establish adequate safeguards for the protection of any mission
personnel present within its territory. Furthermore, it mandates that all mission-related
activities proceed without impediments.

7
Ibid
8
Ibid
  In a reciprocating manner, the diplomat representing the sending country is accorded
certain immunities in the host country. This encompasses the capacity to evade arrest
or imprisonment in another nation, even in cases unrelated to their mission-related
duties. Article 31 explicitly stipulates this immunity from criminal prosecution in the
host state.
 While a diplomatic envoy enjoys some exemption from the host state's civil
jurisdiction, the Convention does impose certain limitations. These restrictions extend
to activities that fall outside the realm of official duties.
 Article 32 of the Convention also allows for the possibility of the sending state
waiving immunity. The majority of these privileges and protections are likewise
extended to the family members of the diplomatic envoy.

Important features of the Vienna Convention are:9

 Article 11 stipulates that if there is no specific agreement regarding the size of a
diplomatic mission, the host country has the authority to request that the mission's
size remains reasonable and in line with the prevailing circumstances and conditions
within the host country, as well as the specific requirements of that mission.
 Article 12 establishes that the sending country cannot establish offices that are
considered part of the diplomatic mission in locations other than those where the main
mission is situated without the prior explicit consent of the host country.
 Article 22 guarantees the inviolability of the diplomatic mission's premises,
prohibiting agents of the host country from entering without the consent of the head of
the mission. The host country is also obliged to take appropriate measures to
safeguard the mission's premises against intrusion, damage, and any disturbances to
its peace or dignity.
 Article 26 emphasizes that the person of a diplomatic agent is inviolable, rendering
them exempt from arrest or detention.
 Article 38 delineates that, unless the host country grants additional privileges and
immunities, a diplomatic agent who is a national of or permanently resides in the host
country enjoys only immunity from jurisdiction and inviolability in relation to official
acts performed as part of their diplomatic functions.
 Article 41 underscores the obligation of all individuals benefiting from such
privileges and immunities to adhere to the laws and regulations of the host country.
Moreover, they are prohibited from interfering in the internal affairs of the host
country, in addition to enjoying their designated privileges and immunities.

Classification of Diplomatic Agents under the Vienna Convention10

Diplomatic agents are categorized based on their status and roles.
This classification includes:
Ambassadors and Legates:

9
S.L. Wright , Diplomatic Immunity: A Proposal for Amending the Vienna Convention to Deter Violent
Criminal Acts. Boston University International Law Journal,5, 1987.
10
Ibid
Ambassadors and legates belong to the highest diplomatic category. They represent sovereign
states and can be either appointed as ambassadors or designated as permanent representatives
by the Pope.
Ministers Plenipotentiary and Envoys Extraordinary:
Ministers plenipotentiary and envoys extraordinary fall into the second diplomatic category.
They have fewer privileges and immunities compared to the agents in the first category.

Chargé d'Affaires:
Chargé d'affaires hold the lowest rank among recognized diplomatic representatives
according to the Vienna Convention on Diplomatic Relations (1961). They are typically
accredited to the foreign minister of the host country and act on behalf of their mission's head
in their absence. In cases of limited diplomatic relations between their home country and the
receiving state, they may be appointed as the head of the mission. However, their privileges
and immunities are not different from those of other diplomatic agents.

Diplomatic Immunity
Diplomatic agents are granted numerous privileges and immunities, which serve as
fundamental principles in the realm of international law. These immunities, as outlined by the
convention, encompass protection from certain civil and criminal legal proceedings for
diplomats and their families, with varying degrees of safeguards extended to staff members.11
The primary purpose behind these immunities is to facilitate the unimpeded execution of
diplomatic duties within the host state. This objective is attainable only when diplomats are
shielded from potential reprisals or legal actions initiated by the government of the receiving
state.
It is crucial to note, however, that the Vienna Convention does not grant diplomats
unrestricted license for wrongful conduct. Diplomatic immunity does not place diplomats
beyond the reach of the host country's legal system, and diplomats are bound by the laws of
the host state.
In cases of misconduct, the authority to take action against a diplomat lies solely with the
sending state, which may choose to recall the diplomat or waive their diplomatic immunity.

The Extent of Immunity

According to the Vienna Convention on Diplomatic Relations of 1961, a diplomat stationed
at an embassy enjoys the status of being "inviolable." This status ensures that the diplomat

11
Hastings International & Comparative Law Review, 21(3).
Available at https://repository.uchastings.edu/hastings_international_comparative_law_review/vol2. (Accessed
on 8th October 2023).
cannot be subject to arrest or detention, and their place of residence enjoys the same level of
safety and security as the embassy itself.

Types of Immunity12
The categories of immunity granted to diplomatic agents are as follows:
1. Inviolability: Diplomatic agents are provided with personal security in accordance
with international law. Article 29 of the Vienna Convention of 1961 ensures their
physical inviolability, safeguarding them from any form of arrest or detention. They
are to be treated with honor and every effort must be made to protect their freedom
and reputation. However, if a diplomatic agent engages in objectionable behavior or
interferes in a host state's internal affairs, they may be declared "PERSONA NON
GRATA" and asked to leave the country.
2. Immunity from Civil and Administrative Jurisdiction: This concept, firmly established
in international law, encompasses several key elements. A diplomatic agent cannot be
sued for debt recovery, arrested in connection with debt recovery proceedings, or have
their property seized and sold.
3. Immunity from Criminal Jurisdiction: Diplomatic agents are also shielded from
criminal prosecution by Article 31 of the Vienna Convention of 1961. Nevertheless,
they are obligated to abide by the host state's laws and regulations. Misconduct may
result in suspension and expulsion from the host country.
4. Immunity Regarding Residence: A diplomatic agent's residence is sacrosanct and
cannot be subjected to examination. However, if wanted suspects are believed to be
hiding at the agent's residence, they are often voluntarily surrendered to the police.
5. Immunity from Giving Evidence in Court: Diplomatic agents are exempt from
appearing in court as witnesses, as per Article 32 of the convention. Nonetheless, any
diplomat who wishes to testify voluntarily in court is permitted to do so.
6. Immunity from Payment of Taxes: Under international law, diplomats are exempt
from paying taxes and customs fees, as articulated in Articles 34 and 36 of the Vienna
Convention. Ambassadors may choose to pay taxes for the use of water and energy
facilities if they wish, but failure to do so will not result in legal action.
7. Immunity from Police Rules and Regulations: Diplomats are not subject to the rules
and regulations that apply to ordinary citizens.
8. Right of Worship and Religious Practice: Diplomats have the right to practice their
chosen religion. However, they do not have the authority to proselytize or compel
residents of the host state to participate in their religious practices.
9. Freedom of Communication for Official Purposes: Article 27 of the 1961 Vienna
Convention on Diplomatic Relations grants diplomats the freedom to communicate
with their home state regarding their responsibilities and obligations.

India and the Vienna Convention

12
S.L. Wright , Diplomatic Immunity: A Proposal for Amending the Vienna Convention to Deter Violent
Criminal Acts. Boston University International Law Journal,5, 1987.
  To implement the Vienna Convention on Diplomatic Relations, the Indian government
enacted the Diplomatic Relations (Vienna Convention) Act in 1972, which has
nationwide applicability.13
 Under Section 04 of the Indian Act, specific limitations are outlined. One of these
constraints stipulates that if a particular State breaches its obligations under the
Vienna Convention on Diplomatic Relations, the Relevant Minister overseeing the
matter must, as deemed appropriate by the Central Government, revoke any privileges
and immunities granted to the diplomatic mission or its members. This revocation is
publicly announced in the Official Gazette.14
 The concept of diplomatic immunity has been addressed in various Indian court
rulings. In the case of Union of India v. Bilash Chand Jain, the court ruled that
diplomatic immunity is also subject to the evolving constraints of sovereign
immunity.15
 India has experienced instances of foreign States misusing diplomatic immunity on its
territory. An illustrative case is that of the two Italian marines who, in February 2012,
mistakenly shot and killed two Indian fishermen, believing them to be pirates. They
were detained in India pending prosecution and provided a guarantee.16
 Indian history reveals that it has both been an offender and a victim of diplomatic
immunity abuse. While the judiciary has taken steps to curb the misuse of diplomatic
immunity, there have also been instances of the Indian Government itself misusing its
diplomatic authority."

Diplomatic immunities and privileges are an essential aspect of public international law
designed to facilitate peaceful relations between states. However, they have been a subject of
criticism and debate for various reasons:17
 Abuse of Privileges: Critics argue that diplomatic immunity can be abused by
diplomats who engage in criminal activities or unethical behavior, knowing that they
cannot be prosecuted or held accountable in the host country. This abuse can include
actions such as traffic violations, unpaid debts, or even serious crimes like espionage.
 Impunity for Serious Crimes: Diplomatic immunity can shield diplomats from
prosecution for serious crimes, including human rights abuses and acts of terrorism.
Critics argue that this can undermine justice and the rule of law, particularly when
diplomats engage in actions that harm the host country's citizens or national security.
 Diplomatic Tensions: Instances of diplomats abusing their privileges can lead to
diplomatic tensions between states. Host countries may become frustrated when they
are unable to hold diplomats accountable for their actions, potentially straining
bilateral relations.
13
Legislative.govt.in, https://lddashboard.legislative.gov.in/sites/default/files/A1972-43.pdf, (Accessed on 8th
October 2023).
14
Ibid
15
TheHindu.com, https://www.thehindu.com/opinion/lead/diplomatic-immunity-in-peril/article4526523.ece,
(Accessed on 8th October 2023).
16
Indianexpress.com, https://indianexpress.com/article/explained/explained-what-is-the-italian-marines-case-
7266450/, (Accessed on 8th October 2023).
17
J.T. Southwick, Abuse of Diplomatic Privilege and Immunity: Compensatory and Restrictive Reforms.
Syracuse Journal of International Law & Commerce, 15, 1989.
  Potential for Diplomatic Espionage: Some critics argue that diplomatic immunity can
provide cover for espionage activities, as diplomats cannot be searched or detained by
the host country's authorities without the consent of their sending state.
 Inequality in Treatment: Diplomatic immunity creates a situation where diplomats and
their families receive special treatment not afforded to ordinary residents of the host
country. This can be seen as a form of inequality, as diplomats can avoid certain legal
obligations and taxes.
 Evasion of Civil Liability: Diplomatic immunity can sometimes be used to evade civil
liability, such as in cases of accidents involving diplomats. Victims of such incidents
may find it challenging to seek compensation.
 Repercussions on Victims: In cases where diplomats commit crimes or engage in
misconduct, the victims may be left without recourse for justice or compensation.
This can lead to frustration and resentment among those affected.
 Calls for Reform: Critics argue that there is a need for reform in diplomatic immunity
laws to strike a better balance between ensuring diplomats can carry out their duties
without fear of harassment and holding them accountable for any wrongdoing. Some
suggest limiting immunity in cases of serious crimes or requiring diplomats to waive
immunity for certain offenses.
 Changes in Diplomatic Practices: Critics also contend that the nature of diplomacy
has evolved since the establishment of diplomatic immunities and privileges, and that
these rules may need to be adapted to current diplomatic realities.

Conclusion
The concept of diplomatic immunities and privileges under public international law is a
complex yet vital component of diplomatic relations among nations. These legal protections
are designed to facilitate open and effective communication between states while also
ensuring the safety and security of diplomats serving abroad.
Diplomatic immunities and privileges have evolved over centuries, reflecting the changing
landscape of international relations. While these immunities grant diplomats certain
exemptions from local laws and regulations, they are not absolute. States must strike a
delicate balance between safeguarding their diplomats and respecting the sovereignty of the
host nation.
It is essential to recognize that these privileges are not without controversy. Critics argue that
they can sometimes shield diplomats from accountability for their actions, potentially
allowing abuse or misconduct. However, diplomatic immunities and privileges remain crucial
for the peaceful conduct of international affairs.
In an increasingly interconnected world, where diplomacy is pivotal in addressing global
challenges, understanding and upholding these principles of international law are imperative.
By adhering to these legal norms and fostering a spirit of cooperation, nations can continue to
engage in diplomatic relations that promote peace, mutual understanding, and the
advancement of shared goals on the international stage.