The Privileges And Immunities Of A Diplomatic Agent Under The Vienna Convention Are Not Absolute By - Eesha Parande
The Privileges
And Immunities Of A Diplomatic Agent Under The Vienna Convention Are Not
Absolute
Authored By
- Eesha
Parande
Abstract
The act of sending a diplomatic agent
to another state has been carried out since ancient times. References of the
same can also be found in the Indian mythology. However, there was no permanent
legation made for diplomatic agents during that period. With the signing of The
Vienna Convention of 1961, the provisions relating to the immunities and
privileges of the diplomatic agents were codified. The Vienna convention of
1961 governs the privileges and immunities of a diplomatic agent to be enjoyed
in the receiving state and for which the diplomatic agent cannot be prosecuted.
However, these privileges cannot be said to be absolute. In case of misconduct
of the person in the capacity of a diplomatic agent in the receiving state,
this diplomatic agent cannot enjoy the immunities and privileges bestowed upon
him. In such serious circumstances, the receiving state may declare that
diplomatic agent as a persona non grata and ask the sending state to either
recall the diplomatic agent or terminate his status as a diplomatic agent. The
author aims at bringing into light these provisions and also cases where it has
been laid down that the privileges and immunities given to a diplomatic agent
are not absolute.
"Let the king
appoint an ambassador; the army depends on its Commander; control of subjects
(depends) on the army; the Government of the kingdom on the King; peace and war
on the Ambassador"
Historical Overview
A diplomatic agent is an instrument
for carrying on such relations between the states. Today almost all states have
diplomatic relations with one another. The practice of sending and receiving
diplomatic envoys can be traced right back to the ancient period. Commonly
known as “Dutas” at that time, these Dutas were sent from one kingdom to
another with a specific purpose in mind. This practice of sending diplomatic agents
can be traced as far as to the references made in the Ramayana and Mahabharata.
In the Ramayana, Hanuman,
also known as Ramduta, was sent as a diplomatic agent to the land of Lanka
before the war broke out between Rama and Ravana, king of the demons. Hanuman
was sent as a diplomatic agent to convince Ravana to return Sita, wife of king
Rama, who was abducted by Ravana. This, however, did not convince Ravana and
Hanuman was sentenced to death by Ravana. It was at this time that Vibhishan,
the younger brother of Ravana reminded him about the violation of Shastras
which stated that it was not permissible to kill an envoy sent for a mission by
another kingdom.
The saint and poet
Tulsidas in his revered work on the life of lord Rama, Ramcharitmanas has
stated, “Nai sees kari bahuta, neeti birodh na maariya Duta”[1].
These lines depict Vibhishan convincing Ravana to not kill Hanuman as it was
against the law to kill a diplomatic agent.
Even in Mahabharata, we
see instances of sending a diplomatic agent on a mission to the other kingdom
before a war broke out. Lord Krishna was sent on a diplomatic mission on behalf
of Pandavas to the Court of Duryodhana to avoid the war between Kauravas and
the Pandavas. When Duryodhana's
supporters tried to assault Lord Krishna, it was argued that a Duta or a
diplomatic agent cannot be assaulted or punished.
Megasthenes in the court
of Chandragupta Maurya, Deimachos in that of Bindusara, Heliodorus, the
ambassador of Antialkidas were some of the diplomatic agents in ancient India. However,
it was unsure whether there were any permanent legations or any law governing
their residence as diplomatic agents at that time.
Around the second half of
the seventeenth century, permanent legation became a general institution. The
congress of Vienna in 1815 codified the customary laws of Diplomatic Agents vis
a vis International law. After the establishment of United nations in 1948, the
International Law commission took over the task of codifying laws related to
diplomatic agents. This commission prepared drafts and were subsequently
presented before the General assembly at the Vienna Convention, 1961. A
convention, known as the Vienna Convention on Diplomatic Relations was enforced
in 1964. The congress of Vienna, 1815 had classified diplomatic agents into 3
categories. A fourth category was introduced in 1818 at the congress of
Aix-la-chapelle which was the class of “minister’s resident”[2].
Following were the classes of diplomatic agents classified by the Vienna
Convention, 1961 under Article 14:
1)
Ambassadors- these are the ambassadors to be personal
representatives of the Heads of the states and have special privileges.
2)
Ministers plenipotentiary and Envoys extraordinary- There is not
much of a difference between this class and Ambassadors. The only difference
being that they are not regarded as the personal representatives of the head of
the state and also do not enjoy the special privileges as ambassadors.
3)
Charges d’ Affaires- This class is appointed by the foreign office
and assigned to a foreign office. They do not enjoy special privileges like the
Ambassadors.
Diplomatic
immunity
The
international agreements with respect to Diplomatic relations are done
according to the Vienna Convention on Diplomatic relations. Diplomatic immunity
is a form of legal protection which is given to the diplomats to allow them to
avoid the force of law in their host countries. It is one of the principles of
international law that limits the degree to which the diplomats are subjected
under police authority and judges of their host countries.
Diplomatic
immunity is awarded to the diplomats to give them the freedom and protection while
putting forth their opinions in front of the host country especially during the
times of disagreement. It is also given to promote amicable interstate
relations. Vienna Convention of 1961 has granted different immunities and
privileges to the diplomatic agents. They are:
1)
Diplomatic agents and inviolability-
According to Article 29 of the Vienna Convention of
1961,
“The person of a diplomatic agent shall be
inviolable. He shall not be liable to any forms of arrest or detention.[3]
The receiving state shall treat him with due respect and shall take appropriate
steps to prevent any attack on this person, freedom or dignity.” This means
that the receiving state is not permitted to prosecute diplomats and must
protect them along with their families and properties.
A) Inviolability of the
staff of the mission
Article 1 defines the members of the staff of the
mission. Immunities are granted to the members of the diplomatic staff,
administrative and technical as well as service staff.[4]
The members of the staff, not being nationals or permanent residents in the
receiving state shall along with the family members enjoy the immunities
entailed in Articles 29 to 35 except for the acts performed outside the course
of their duties. In this case, the members of the staff will not enjoy
immunities under the civil and administrative jurisdiction of the receiving
state.
In the case of Anil Khanna
in April 2000,
Anil Khanna, who was the Indian high
commissioner, Anil Khanna was abducted by the operatives of Pakistan’s Intelligence
agencies and was released 8 hours after severe torture. His medical examination
taken afterwards that he was subjected to beating and was inflicted with many
wounds, leaving him bruised.[5]
This was a clear violation of the immunity given to the staff members of
diplomatic missions under the Vienna Convention, 1961.
B) Inviolability of family
members:
The immunity of diplomats also extends to the
family members of the diplomats. This immunity which was given to the family
members and also to the administrative and technical staff of the diplomatic
agents sparked a lot of controversies. However, it was clarified under Article
37 Para 1 of the Vienna Convention that:
Firstly, if the family members are not nationals
or permanent residents of the receiving state, then they can be given
immunities and secondly, if they form a part of their household. Hence, we can
observe that immunities cannot be awarded to family members who are nationals
in the receiving state and also in the case where the family members are
independent and not living under the same roof as the diplomatic agent.
2)
Inviolability of the mission premises
Article 22 of the Vienna Convention on Diplomatic
Relations provides that “the premises of the mission shall be inviolable. The
agents of the state shall not enter them, except with the consent of the head
of the mission.”[6]
The diplomatic agent gets two privileges here.
One is that the state and no official of that receiving state shall enter the
premises of the diplomatic mission and second that the state shall take steps
to ensure protect the premises of the mission from any disturbance, damage or
intrusion.
The diplomatic agent has a right to use flag and
emblem of the sending state thereby clearly identifying them.
3)
Immunity from local jurisdiction
Under the many privileges given to diplomatic
agents, one of the important ones is that the diplomatic agents have immunity,
i.e. they cannot be prosecuted under
civil or criminal jurisdiction.
a.
Criminal jurisdiction- Under the Vienna Convention Article 31 para
1, it is stated that a diplomatic agent is exempt from the proceedings of
criminal nature under the criminal jurisdiction of the receiving state.
b.
Civil and administrative jurisdiction-no civil action can be
initiated against a diplomatic agent for recovering debts and even their
property like cars, furniture be attached on non-recovery of such debts. They
cannot be prevented from leaving the country on account of failure to repay
debts by confiscating their passports.
4)
Immunity from giving witnesses
Article 31 (2) pf the Vienna Convention states
that “a diplomatic agent is not obliged to give evidence as a witness.”[7]
It includes giving a witness under the criminal, civil as also administrative
courts. A diplomatic agent, however, can adduce evidence as a witness on
waiving off this immunity.
5)
Immunity from taxes and customs
Article 23 of the Vienna Convention on Diplomatic
Relations exempts the sending state and also the head of the mission from all
taxes. This has an exception that where the payment is with respect to the
services provided for specific purposes, then the tax is not exempted. For
example, the embassy would have to pay tax with respect to the electricity or
road maintenance. But it would not be obliged to pay any tax for matters
related to national defence or administration.
The Vienna Convention under Article 36 states
that “the receiving state in accordance with the laws and regulations, permit
entry or may grant exemption from all custom duties, taxes and related charges,
other than charges for storage, cartage and similar charges and on:
a)
Articles for the official use of the mission
b)
Articles for the personal use of a diplomatic agent or members of
the family forming part of his household, including articles intended for his
establishment. “[8]
6)
Immunity from inspection of personal baggage
A diplomatic agent is sent to the receiving
country by a sending country with a particular mission in mind. The diplomatic
agent carries along with him various documents of treaties, contracts or even
confidential matters. All these are included in his baggage to the host country
in addition to his personal baggage. Can this baggage be checked at the host
country? The answer is no. diplomatic and personal baggage may not be inspected
unless there are certain serious grounds. Article 36 of the Vienna Convention provides
that the diplomatic agent shall have the immunity to avoid checking of his
personal baggage unless there are any serious grounds or is related to the
import and export of items which are prohibited by the receiving state or under
quarantine regulations. In such case the inspection should be carried out in
front of the diplomatic agent or of his authorized representative.
7)
Freedom of communication
The diplomatic agents are
given freedom to communicate with respect to official purposes of the state.
Article 27 of the Vienna Convention also includes communication via couriers
and code messages.
8)
Freedom of movement and travel
Article 26 of the Vienna Convention provides that
the diplomatic agents have a right to move and travel in the receiving state
but this is subject to the laws governing that state.
9) Right to Worship
The
diplomatic agents have the freedom to practice any religion they want
in the receiving state. However, they cannot preach or influence other people
to practice the same religion in the receiving state.
10) Immunity from social security
provisions
According to article 33 of the Vienna Convention,
with respect to the services given for the sending state, the diplomatic agent
shall be exempted from the social security provisions in force in the receiving
state.
11) Immunity
from local and military obligations
The diplomatic agents are exempted from the local and military
obligations with respect to the military contributions of the receiving state.
These privileges and immunities are given to the diplomatic agents
as under the Convention. The question which remains is,
Whether the privileges and
immunities granted to a diplomatic agent are absolute?
As stated hereinbefore, the diplomatic agents are given many
privileges and immunities. These are given to ensure security to the diplomatic
agents in host countries in order to avoid conflicts, use of warfare and to
enhance amicable interstate relations. The question which arises here is- Are
the diplomatic agents given a carte blanche to break the law? Do the immunities
absolutely safeguard the actions of the diplomatic agents?
Unlimited powers are not given to the diplomatic agents and there
are reasonable restrictions on the immunities provided to the diplomats. The immunities of inviolability
of the diplomatic agents are not absolute. The receiving state has the power to
detain or arrest the diplomatic agent on exceptional grounds. For example, if
the diplomatic agent engages in any violent means of exerting power or hurting
someone with a weapon, he may be detained or arrested. Even in case of
conspiring against the government of the receiving state and where the threat
cannot be eliminated unless the diplomatic agent is detained, then he can be
detained for the time being but he must be sent home within the stipulated
time.
Inviolability of premises is not absolute-
Inviolability of the premises which is a privilege given to the
diplomatic agent is also not absolute. It does not give the diplomatic agent
unlimited powers with respect to the premise of the mission. It is stated in
article 41 of the Vienna Convention that the premises of the mission shall not
be used in contradiction to the functions of the mission as laid down in the
convention, any rules of international law or under any contract specifically
enforced between the sending and the receiving state. Except for the emergency
cases posing an imminent threat, the premises of the mission remains
inviolable. But it can be inferred that the privilege does not remain absolute.
Immunity under civil, administrative and criminal jurisdiction is
not absolute-
Article 31 paragraph 1 of the Vienna Convention states that the
diplomatic agent shall receive immunity under the criminal jurisdiction of the
receiving state. However, it does not mean that a diplomatic agent may engage
in any criminal activity and get away with it. This privilege is not absolute
in nature. It is assumed that the diplomatic agent will conduct himself and the
matters of the mission in accordance with the internal law and order of the
receiving state and not act otherwise. He has a duty to respect the laws of the
host state. If his conduct becomes a violation of law of the receiving state,
it is at the discretion of the receiving state to put forth his recall by the
sending state and dismiss him. If it is the case of the diplomatic agent conspiring
against the government of the receiving state, it leads to immediate expulsion
of that diplomatic agent. However, in such a situation, the said diplomatic
agent cannot be punished or prosecuted. In such case, he becomes an undesirable
person and is sent back to the sending state.
The Vienna Convention under the Article 31 paragraph 1 provides
immunities to the diplomatic agent under civil and administrative jurisdiction.
However, there are a few exceptions to these immunities and privileges. The Article
31 paragraph 1 also states that this immunity under civil and administrative
jurisdiction shall not continue to be in force in the cases where actions are
relating to:
a)
Private movable property held by the receiving state, unless the
property is held for the sending state with respect to their mission,
b)
In cases related to succession where the diplomatic agent comes
into picture as the executor, administrator, legatee and this is not assigned
by the sending state,
c)
Where the diplomatic agent is carrying out commercial or any
professional activity and this is not within the capacity of a diplomatic
agent. In other words, any professional or commercial activities undertaken by
the diplomatic agent outside the course of his official functions as a
diplomatic agent.
From the above exceptions, it can be inferred that the immunities
and privileges given to a diplomatic agent under civil as well as criminal
jurisdictions are not absolute. They are not available for the personal matters
of the diplomatic agents. These immunities are only available and maintainable
with respect to the official matters performed by the diplomatic agents.
Immunity from taxes is not absolute-
Article 34 of the Vienna Convention of 1961 states that diplomatic
agents shall be exempt from all dues and taxes. However, it is not possible to
grant this immunity in an unrestrained manner. Hence this immunity is coupled
with a few exceptions which are as follows:
a.
Taxes indirect in nature, like the service tax or sale tax have to
be borne by the diplomatic agent.
b.
Taxes on private international property which is situated in the
territory of the receiving state have to be borne by the diplomatic agent
himself since it is pertaining to his personal use.
c.
Succession or inheritance duties levied by the receiving state
have to be borne by the diplomatic agents themselves.
d.
Taxes on the earnings or investments made by the diplomatic agents
for their private purposes shall be paid by the diplomatic agents.
e.
Charges levied with respect to immovable property like court fees,
registration fees have to be paid by the diplomatic agents.
And lastly,
The diplomatic agents are free to worship any religion. However,
they have no right to preach their religion in the receiving state.
We can clearly see from the above examples that the immunities and
privileges granted to a diplomatic agent are not absolute and the diplomatic
agents cannot get away owing to their misconduct or by acting in contravention
to the law of the receiving land.
There are a few notable cases which highlight the extent of the
immunities and privileges of the diplomatic agents and also show that these
privileges are not absolute:
In 1717, the Jacobite rebellion was an attempt by James Edward
Stuart to regain the thrones of
England, Ireland and Scotland for the exiled Stuarts. They marched into England
and the battle of Preston took place. The Jacobites won the first day of the
battle and also killed a number of government officers but after the government
forced overpowered them the next day, the Jacobites eventually surrendered.
After the failure of the 1715 Rising, James Stuart’s supporters
turned to Sweden and Spain for help in funding. The officials there were
alerted and the secret department kept a watch on the communications between
Georg Heinrch von Görtz, Sweden’s minister plenipotentiary in Europe, and Carl
Gyllenborg, the Swedish ambassador in London. The documents found were
perturbing. Regardless of the provisions of international law about the assault
on diplomatic immunity, Ambassador Gyllenborg was arrested on 29 January 1717
and his residence was searched and the papers and documents were seized.
In retaliation, Sweden detained the British ambassador in
Stockholm. Later the prisoners were released. However, on their return to
Sweden, Gyllenborg and von Görtz began another operation to ensure that James Stuart
gets back the throne.
In the year 1718 The Prince of Cellamare, who was the Spanish
diplomat in France and his embassy wanted to overthrow Philippe d'Orléans from
power and make Philip V the Regent for his nephew. It was found out that he was
conspiring against the French government and Prince of Cellamare was arrested
and sent back to Spain. [9]
United States Diplomatic and Consular Staff in Tehran -United
States of America v. Iran[10]
Also known as the Iran hostage crisis, Iran seized 66 American
citizens at the U.S. embassy in Tehran and for over a year had 52 held as
hostages. This was the aftermath of Iran’s Islamic revolution of 1978-79. The
deposed Iranian ruler, Mohammad Reza Shah Pahlavi, had been close to a
succession of U.S. administrations, and this created anger and hostility among
the Iranians. On November 12 Iranian foreign minister said that the hostages
would be released if US stopped interfering in the affairs of Iran. Shah should
be returned to Iran for trial and the assets in the possession of Shah should
be declared as stolen.
After referring the case to the international court of justice,
following judgement was given[11]:
a)
that
Iran has violated and is still violating the long-established rules of
international law.
b) Iran must terminate the detention of
hostages and immediately release them.
c) Iran must immediately place in hands
the premises, property, archives and documents of the US embassy in Tehran.
d) That no member of the United States
embassy shall be kept in Tehran and be compelled to be a witness in any
judicial proceeding.
e) The government of Islam should make
reparation to the injury caused.
f) The amount of reparation shall be
decided by court.
Invasion of Iraq in
Kuwait and the French embassies
In 1990, the Iraqi forces
annexed Kuwait and entered into the French embassies. They raided the
diplomatic compounds of France Canada and Belgium in Kuwait and detained 5
consuls and capturing 4 French citizens. The French ministry declared this as a
violation of the Vienna Convention. The UN security council declared this as an
aggressive act and ruled that Iraq was responsible to pay the damages caused by
Iraq’s mistreatment and holding around 300 French hostages. Iraq finally set these hostages free and
France shut down its embassy in Iraq.
In May 2003, Mansoor Ali
who was the son of a Senegalese ambassador to India, killed his driver in a
fight at a five-star hotel in New Delhi. The police said that a case under
Section 304 (culpable homicide not amounting to murder) was filed against him.
However, he was not arrested since he enjoyed diplomatic immunity as he was
dependent on his father who was an ambassador to India. The ambassador was
recalled by the sending state and assurance was given that he would be
prosecuted by the sending state.
The 1583 Throckmorton
Plot was a series of attempts by English Roman Catholics to depose Elizabeth I
of England led by Francis Throckmorton. Bernardino de Mendoza was the Spain
ambassador sent to London and he had a role in conspiring against queen
Elizabeth I. Protected by diplomatic immunity, Mendoza was sent back to the
sending state in January 1584. Throckmorton was sentenced for execution in the
year 1584.
The customs agents in
Rome seized large diplomatic bags when they heard moaning coming from the bags.
Inside the bags they found, respectively, a drugged Israeli. He was abducted
and the destination of the bag was to Cairo. As a result, some of the members
from the embassy of Egypt were sent back to the sending state.
Non acceptability of
envoy- Persona non grata
Declaring a diplomatic
agent as a persona non grata means a diplomatic agent is not acceptable by the
receiving state; an undesirable person. Declaring such an undesirable person as
persona non grata would lead to the termination of the diplomatic mission. This
concept arises normally when there is a gross misconducted on the diplomatic
agent’s part. In the above notable cases, we have seen that on misconduct of
the diplomatic agent in the receiving country, while the receiving country
might not be able to punish the diplomatic agent in its territory but it has
the power to send back the diplomatic agent to its sending state. the basic
principle of this concept is that a state need not keep suffering just because
of because of the misconduct of the diplomatic agent carried out by virtue of
immunities and privileges granted to him by the Vienna Convention in 1961.
This basic principle has
been set out by the Article 9 of the Vienna Convention on diplomatic relations.
The article provides that- The receiving state may at any time notify the
sending state that the diplomatic agent has been declared as a persona non
grata within the stipulated time. The sending state in such a case may either
recall the diplomatic agent or terminate his powers and functions related to
the mission.
If the sending state
refuses or fails to recall or terminate the functions and powers of the
diplomatic agent, then the receiving state may, on expiry of stipulation of
time, refuse consider that diplomatic agent as a member of the mission.
The diplomatic agent had
been declared as a persona non grata and made to be recalled by the sending
state in the following cases:
Pakistan had declared the
Iraqi ambassadors as persona non gratae for large-scale covert Iraqi
involvement in supplying arms and ammunition waging an insurgency against
Pakistan. The 1973 raid on the Iraqi embassy was done by the Pakistani rangers
and Islamabad police to uncover this covert operation. On one midnight in 1973
the Pakistani Authorities were informed about covert Soviet weapons shipment
which had been smuggled into the country with Iraqi assistance. According to
the reports, the weapons were being kept at the Iraqi embassy at Islamabad. The
embassy was stormed by the Pakistani rangers and Islamabad police and 300
Soviet-made submachine guns with 50000 rounds of ammunition as well as a lot of
funding for the same was uncovered at that embassy.
Hence, the diplomatic
agents of Iraq were declared to be persona non gratae for their involvement in
terrorist activities.
In January 2000 Pakistan
had expelled an Indian high commissioner staff member in Pakistan for allegedly
involving in criminal activities. As a revenge, India also declared a Pakistan
high commissioner member persona non grata and was asked to leave the country
within one week. It was stated that the acts of the commissioner were
contravening his official status as a diplomatic agent.
Two officials working at the high commission of Delhi
were declared persona non grata by India in 2020. They were caught spying on
the Indian authorities. Abid Hussain and Tahir Hussain who working in the visa
section of the Pakistan High Commission were caught for engaging in anti-
Indian activities. They were using fake Indian identity cards. India declared
them persona non grata and has asked them to leave the country within 24 hours.
The Ministry of External Affairs (MEA) in a release said that the diplomatic
agents were declared persona non grata for not conducting themselves according
to their status as members of a diplomatic mission and asked them to leave the
country within 24 hours.
A similar case took place
in 2016 where a Pakistan high commission official Mehmood Akhtar was declared
as a persona non grata after he was apprehended by Indian law enforcement
authorities while receiving sensitive documents.
That day itself, in
retaliation, Pakistan declared an Assistant Personnel and Welfare Officer in
the Indian High Commission in Islamabad Surjeet Singh as persona non grata.
It can be inferred from
the following illustrations and provisions under the Vienna Convention of 1961
that the rights and privileges which are given to a diplomatic agent are not
absolute and they are subject to limitations and restrictions.
References
2)
International Law, third edition, Gurdip Singh