Sneha Chavan

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Module 8. State Immunities and Privileges

PYQ
1. Discuss the significance of diplomatic agents. Explain the
various privileges and immunities available to diplomatic
agents under the international law.(15 marks)
(2018){2022}.
2. Discuss the law relating to diplomatic immunities and
privileges. (10 marks) (2018)
3. Inviolability of diplomatic agents (5 marks) (2019)

Synopsis

1. Introduction

2. Law on Diplomatic Agent

3. Classification of Diplomatic Agents

4. Functions of Diplomatic Agents

5. Significance of Diplomacy

6. Immunities and Privileges of Diplomatic Agents

7. Conclusion
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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.
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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
•

CLASSIFICATION OF DILOMATIC AGENT-The diplomatic agent have been

classified according to their status and functions, it was again dropped by 1961
convention on Diplomatic relations. THUS, at present, the classification of
diplomatic envoys is as follows-

1)-AMBASSADORE AND LEGATES- Ambassador and legates are the diplomatic

agents of first category. they are the representatives of the completely
sovereign states. They are either appointed as ambassador or permanent
representative appointed by pope are called legates

2)-MINISTERS PLENI-POTENTIARY AND ENVOYS EXTRAORDINARY-Minister

plenipotentiary and envoys extraordinary are the diplomatic agents of secured
category and as compared to the diplomatic-agents of the first category, they
enjoy less privilege and immunity.

3)-CHARGE-D-AFFAIRES-Charge-d-affaires are the diplomatic agents of the last

category. The main reason for this is that they are not appointed by the head of
the state. they are appointed by the foreign ministers of states. in right and
status they are considered below the minister resident.

It was made clear in Article-14(2) of the Vienna convention on diplomatic

relation that apart from precedent and etiquette, there is hardly any difference
between the diplomatic agents of above mentioned categories. Obviously, there
is no difference so for as their privilege and immunity are concerned.
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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.
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The Significance of Diplomacy:

▪ Diplomacy is the chief instrument of foreign policy, which is set by political leaders,
though diplomats (in addition to military and intelligence officers) may advise them.
▪ The foreign policy establishes goals, prescribes strategies, and sets the broad tactics
to be used in their accomplishment. It may employ secret agents, subversion, war, or
other forms of violence as well as diplomacy to achieve its objectives.
▪ Unlike foreign policy, which generally is enunciated publicly, most diplomacy
is conducted in confidence.
▪ The purpose of diplomacy is to strengthen the state, nation, or organization it serves
in relation to others by advancing the interests in its charge.
▪ It strives to preserve peace and is strongly inclined toward negotiation to achieve
agreements and resolve issues between states.
▪ Diplomacy normally seeks to develop goodwill toward the state it represents,
nurturing relations with foreign states and peoples that will ensure their cooperation
or—failing that—their neutrality.
▪ When diplomacy fails, war may ensue; however, diplomacy is useful even during the
war. It conducts the passages from protest to menace, dialogue to negotiation, an
ultimatum to reprisal, and war to peace and reconciliation with other states.
▪ Over the long term, diplomacy strives to build an international order conducive to
the nonviolent resolution of disputes and expanded cooperation between states.

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.

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
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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.
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• 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.

• 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
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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 CIVIL ADMINISTRATIVE JURISDICTION-

It is well established principle of international law that the diplomatic
agents enjoy immune from civil and administrative jurisdiction.
Under this immunity:-
1)- no suit can be filed against diplomatic agent for recovery of debt;
2)- he can not be arrested in action for debt recovery;
3)- his property can not be ceased and sold.

• -IMMUNITY FROM CRIMINAL JURISDICTION –

Diplomatic agents have also been given immunity from criminal

jurisdiction. Under Article 31 of Vienna convention 1961, it has been
provided that "diplomatic agents shall be immune from the criminal
jurisdiction of the state". It means that the keeping state shall not
prosecute and penalise any diplomatic agent under any circumstance.
Even he can not be arrested. But it does not mean that he can behave as
he likes in keeping state. It is his duty that he should obey all rules and
laws of keeping state and should not do such act which is inconsistent
with the internal system of keeping state. If any misconduct is done by
him, the keeping state may suspend him and ask him to leave the country.
For example- in 1995 the first secretary sultan Mahmood DEHADER in
AFGAN embassy was suspended by government of India in Delhi in
consequence of criminal charge and misconduct and was sent back to
AFGANISTAN . This immunity is not available to children and relatives of
diplomatic agents who are not residing with them.

• 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.
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• 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.
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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 .