Introduction

Diplomats are the persons who reside in foreign countries as the representative of the country by
whom they are despatched. They act as a link between the country who despatch them and by
whom they are accredited. Therefore, they perform the act of diplomacy, which in International
Law means by which the States maintain or establish mutual relations and carry out their legal or
political transactions based on their foreign policies.

Act of diplomacy may be performed by the head of State, Government, Minister of Foreign
Relations or by and by diplomatic agents.

Law on Diplomatic agents

The practice of sending and receiving diplomatic agents is followed by states since ancient time.
In ancient times ‘Doots’ were sent from one Rajya to another. However, in ancient time the
practice was not uniform nor they were sent permanently to another Rajya. The practice of
permanently sending the diplomatic agents started from the seventeenth century.

By the second half of the seventeenth-century permanent legation became a general institution
and certain rights and duties almost identical in nature were provided to the diplomats.

The Congress of Vienna of 1815 for the first time codified customary rules of International Law
on ranks of diplomatic representatives. The institution of diplomacy continued to develop after
1815 and after the establishment of the United Nations, the task for codifying for the law relating
to diplomatic agents was given to the International Law Commission.

The Commission prepared the draft article and submitted them to General Assembly. The
Assembly convened a conference in 1961 and adopted Vienna Convention on Diplomatic
relations.
Classification of Diplomatic agents

Diplomatic agents accredited to a State differ in class. The Vienna Convention on diplomatic
relations, 1961 under Article 14 divides diplomatic agents into three classes. They are:

 Ambassadors accredited to head of State.

 Envoys, ministers accredited to the head of State.
 Charges d’ Affairs accredited to Ministers of Foreign Affairs.

Functions of Diplomatic Agents

Functions of diplomatic agents are determined by the rules and regulations of International Law
and municipal law (law of country) of the States. Article 3(1) of the Vienna Convention of
Diplomatic Relations, 1961 lays down various functions of diplomatic agents which are as
follows:

 Representation: Diplomatic agents represent the policies and beliefs of State by

which they are dispatched to the state where they are accredited. The function of
representation is primarily entrusted to the head of the mission. Oppenheim, in his
book, says that “diplomats are the mouthpiece of the head of his own State and the
Foreign Minister for communication to be made to State where they are dispatched.
 Protection: Diplomatic agents protect the rights and interests of sending State and
also of nationals, within the limits allowed by the municipal law of respective State.
The limit of diplomats is not prescribed by the International Law but by the municipal
law of the State.
 Negotiation: Negotiation is the most important function which is performed by the
diplomatic agents. Generally, the head of the diplomatic mission negotiates on various
aspects of on behalf of the sending State with the State to which they are accredited in
 order to maintain a friendly relationship. Diplomatic agents are required to
communicate the outcome of the negotiation to sending State from time to time,
 Observation: Diplomatic agents are required to observe those events and happenings
which take place or which may take place in the State where they are accredited,
especially those which may affect the interests of the State by which they are sent.
After making observations of the events, they are required to make periodical reports
to the government of sending State.
 Promotion of Friendly Relations: Diplomats are required to promote friendly
relations between the sending State and the receiving State. They also have the
function to develop the social, cultural and economic relations between the two States.
 Consular Functions: Vienna Convention lays down that diplomatic agents can also
perform consular functions which may be allotted to them from time to time such as
death, birth and marriage registrations of the subjects of home State, issue of passports
etc.

Diplomatic immunities and privileges

International Law confers diplomatic immunity on diplomats from the exercise of jurisdiction
by receiving States. The principles governing diplomatic immunities and privileges are among
the most ancient and universally recognised principles of International Law.

Basis of Diplomatic immunity and privileges

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.

Privileges and immunities of a Diplomat

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.
Inviolability of Staff of Mission

In addition to the head of mission, immunities are also given to the staff of the mission, which is
defined in article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna Convention lays
down that members of the administrative and technical staff shall enjoy the immunities and
privileges as mentioned from Article 29 to Article 35 if they are not nationals or are not
permanent residents of receiving State.

Thus, administrative and technical staff only enjoys personal inviolability (Article
29), inviolability of residence (Article 30(1)), immunity from criminal jurisdiction (Article
31(1)), exemption from certain taxes and duties (Article 34) and immunity from civil and
administrative jurisdiction exists when they are performing service duties [Article 31(1)].

Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff if they are
not the nationals or permanent resident of receiving State. It provides immunity to the acts
performed in course of their duties, exemption from taxes and duties on emoluments received
and exemptions on social security provisions.

Inviolability of family members

Vienna Convention of Diplomatic Relations in its Article 37 Para 1 states that “immunities and
privileges to the family members of diplomatic the diplomatic agents having diplomatic ranks
may be given, if firstly they are not nationals or permanent resident of receiving State and
secondly, so long as they form the part of household, i.e. they live under one roof”.

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.


o 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.
o 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”.
o 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.
o 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”.
o 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”.
o 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.
o 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.
o 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.