Diplomatic Immunities: 1 Kdr/Iit Kgp/Rgsoipl/-2008

Diplomatic Immunities
KDR/IIT KGP/RGSOIPL/-2008 1
Developments
English Diplomatic Privileges Act of 1708
Congress of Vienna – 1815
Regulation of Vienna
Vienna Convention on Diplomatic Relations 1961.
183 state parties
‘extra ordinary’ Ambassadors on temporary mission
Title of ‘Plenipotentiary’
Envoy Extraordinary and Minister Plenipotentiary’
Missions
A.2 of the Vienna Convention – mutual consent of
states.
No right of establishment of missions
Consent of both states are necessary.
Usually embassies
53 states – High Commissions – all common wealth
countries.
Formalities
Letters de Credence to be issued
Letters of ‘full powers’ relating to particular
negotiations or specific instructions to be submitted to
the accredited state.
In order to avoid conflict the appointment of a
particular person as envoy must ascertain beforehand
whether that person will be persona grata.
Once the ascent is obtained, proceed with
appointment.
Functions of missions
A.(1) - (a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending
State and of its nationals, within the limits permitted by
international law;
(c) negotiating with the Government of the receiving State;
(d) ascertaining by all lawful means conditions and
developments in the receiving State, and reporting thereon to
the Government of the sending State;
(e) promoting friendly relations between the sending State and
the receiving State, and developing their economic, cultural and
scientific relations.
Mission
All buildings, land, irrespective of ownership
Residence of head of mission and staff.
The Diplomatic and Consular Premises Act 1987
requires the consent of the British Government before
acquiring property.
Receiving state must facilitate the acquisition and
accommodation of the staff.
S.25 – ‘full facilities’ – telephone line, permits etc.
Persona non grata
A.9 – unqualified power on the receiving state to
remove any member of the mission.
Not acceptable.
The receiving state will refuse to recognise him as a
member of the mission.
No longer enjoy privileges and immunities
No reason for demanding recall
Foreign territory
Part of the territory of receiving state
Buying or leasing be under the local law.
A.22 – premises of the mission are inviolable
Agents of the receiving state cannot enter the mission
without the consent.
Police intrusion is violation of inviolability
 the remedy is only personal non-grata or serving
diplomatic relations.
Movement
A.26 – freedom of movement within the receiving
state.
Freedom of communication
A.27(1) – inviolability of official communication
All correspondence relating to mission and its
functions.
Diplomatic bag
Any bag for communication or any equipment.
Even a container can be termed as diplomatic bag but
not the vehicle itself.
A.27(4) – Specific external mark
Label + official stamp
A.27(4) - stipulates the bag should only contain
diplomatic documents or articles intended for official
use.
Use of the bag for sending drugs, arms or explosives
are abuse of the Convention.
Rights and privileges
Article 20-41 of the Vienna Convention
Representative theory
Ex - territoriality – no more accepted
R v. Turnbull, ex p Petroff, (1971) 17 FLR 438.
Throwing explosives in USSR Embassy in Canberra.
Held – Embassy is not a part of the foreign territory
and the accused could be prosecuted for such alleged
offences against local law.
Foreign territory
A.31 of the Vienna Convention of 1963
No entry without consent
Consent assumed in case of fire or prompt protective
action.
1948 - Kasenkina Case – lady jumped through the
window of Soviet consular office.
Protection
A.22 of Vienna Convention –
US Diplomatic and Consular Staff in Tehran, ICJ 1980,
3.
ICJ held that it the host state to protect the premises,
staff and archives of the mission against any attack.
A.25 – full facilities for a mission to perform its
functions.
A.26 – freedom of movement and travel of mission
personnel (except in prohibited areas).
Protection
1984 – Firing from Libyan People’s Bureau in London
at demonstrators outside the Bureau killing one
women police officer.
Recall of the staff.
A.34 and 36 – exemption from all dues and taxes.
A.27 – freedom of communication for official
purposes.
Exception from social security provisions
Protection of diplomats
UN Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons
including Diplomatic Agents – 1973.
Protection against him and family members.
Murder, kidnapping or other attack upon person
Violent attack on official premises or private
accommodation.
Transport,
Personal inviolability
Arrest or detention
Keep freedom and dignity (A.29)
Duty to take all appropriate steps to prevent any attack
on diplomatic persons.
Inviolability to the residence of the head of mission.
Private residence of diplomatic agent enjoys same
inviolability.
Diplomatic immunity
Criminal jurisdiction
Civil and administrative matters
The immunity can be waived only by the sending state
[A.32(2]
Social security exemption
Exemption from taxation
Property tax exemption on reciprocal basis.
Exemption from income tax
Customs duties and inspection
Family
The immunities are extended to the family of a diplomatic
agent forming part of his house hold. A. 37(1).
Spouse and children
Unmarried couples
Wife is not immune from civil and administrative
jurisdiction.
A.37(2) – Administrative and technical staff are immune.
Staff – only in respect of acts performed in the course of
duties.
Termination of diplomatic mission
Recall of envoy – Lettre de Recreance
Notification by the sending state to the receiving state
that the envoy function has come to an end.
Request by the receiving state that the envoy be
recalled.
No explanation is required – A.9 of the Vienna
Convention.
War between two states
End of Diplomatic mission
Envoy has been declared as persona non grata.
Expiration of the letter of credence.
Consuls
The title Consul is used for the official representatives
of the government of one state in the territory of
another, normally acting to assist and protect the
citizens of the consul's own country, and to facilitate
trade and friendship between the people of the
country to whom he or she is accredited and the
country of which he or she is a representative.
Thus, while there is but one ambassador representing
a nation's head of state to another, and his or her
duties revolve around diplomatic relations between
the two countries.
Consuls
Vienna Convention on Consular Relations, 1963.
Consuls
Vice-consuls
Consular agents
Ambassador - Consul
An ambassador is the A consul is the
foreign diplomatic commercial agent of a
representative of a nation nation, who is
who is authorized to empowered only to
handle political engage in business
negotiations between his transactions, and not
or her country and the political matters in the
country where the country where he or she
ambassador has been is stationed.
assigned.
Powers
The powers of an In general, a consul is
ambassador are specified authorized to safeguard
in his or her credentials, the legal rights and
or documents of property interests of the
introduction, which the citizens of his or her
country and to appear in
ambassador submits to
court to ascertain that the
the foreign government. laws of the nation where
he or she is assigned are
administered impartially to
all of the ambassador's
compatriots.
Immunity
The development of harmonious international
relations and protection against arrest, harassment, or
other unjustified actions taken against diplomatic
representatives.
Such an agent is immune from criminal liability in the
nation in which he or she serves, but the commission
of a crime may result in a recall request to the
ambassador's country.
Immunities
In addition, a diplomatic agent is immune from civil
lawsuits, except for actions involving estates, when he
or she is the executor, administrator, or beneficiary;
actions concerning real property held by the
diplomatic agent for personal, not official functions;
and actions relating to professional or business
activities that are beyond the scope of diplomatic
duties.
A diplomatic agent is not required to testify as a
witness; and the family members living in the agent's
household enjoy the same immunities.
Immunity
No full immunity to consular agents
According to bilateral treaty
Not subject to local proceedings unless their
government assents to the proceedings.
Right of free communication
Inviolability of official papers and archives
Right to be released on bail when accused
Limited exemption of taxation and dues.
Special missions
Convention on Special Missions 1969
States for common interest
Freedom of movement and communication necessary
for the function of the mission
No immunity from action for damages in case of
accidents of vehicles
Permanent missions to international organisations
Permanent observer missions
Delegations to international missions
Vienna Convention 1975
Convention on the Representation of States in their
Relations with International Organisations of a
Universal Character.

India
Diplomatic Immunities Privileges Act, 1964.
RGSOIPL, IIT Kharagpur
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