Niharika Sanadhya explores the need for diplomatic privileges and immunities, based on international law and practices, in this essay.
The concept of Diplomatic Immunity is a very primeval one. The practice of providing immunity to an envoy or someone speaking on behalf of a leader from different states and from across borders was widely accepted in places like ancient Greece, Egypt, Israel, India and China. In these places, initially, the idea behind diplomatic immunity greatly differed from the one in practice today. In order to effectively communicate with other parts of the community, state or country, messengers and representatives, who communicated on the behalf of their leaders, were protected even if the messages included bad news, or threats[i]. According to Harold Nicolson “It must soon have been realized that no negotiation could reach a satisfactory conclusion if the emissaries of either party were murdered on arrival. Thus, the first principle to become firmly established was that of diplomatic immunity”[ii]
Later, The Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963 codified the most modern diplomatic and consular practices, including diplomatic immunity[iii] and it soon became a fundamental rule of diplomatic law[iv]. Diplomatic immunity focuses on safeguarding diplomatic communication by exempting diplomats from the jurisdiction of the host countries so that they are able to perform their functions with freedom and security.
Scope and Limitations
The Vienna Convention on Diplomatic Relations 1961, has laid down certain clauses for safeguarding the freedom and independence of foreign diplomats working for their country’s embassies in their host countries. According to Article 31 of the Vienna Convention, a diplomat enjoys immunity from the criminal, civil and administrative jurisdiction of the receiving state[v]. The clauses are mainly put forth to keep the diplomats from feeling coerced or pressured. However, according to Article 9 the receiving State may, at any time, without having to explain its decision, notify the sending State that a certain diplomat is persona non grata, i.e. not acceptable or unwelcome in the receiving State. The receiving State usually takes such a step when a diplomat commits a felony. A diplomat thus declared non grata will either be recalled by the sending state, or his/her functions in the mission will be terminated. However, the diplomat might or might not be tried in the sending State’s court for the felony and may escape without a punishment. Diplomats, according to Article 27, are not obligated to get their bags checked and should carry only documents and articles intended for official use. The diplomatic courier too isn’t necessary to be put under the scanner. These clauses have been interpreted and misused to a great extent giving rise to a number of cases that involve smuggling of prohibited good like alcohol, drugs and antiques. Diplomats claim immunity from traffic violations and automobile accidents. In 1997, the Republic of Georgia used its right and waived it’s immunity of a No.2 Diplomat who killed a 16-year-old while drunk-driving. However, justice is not served most of the times[vi]. A Qatari diplomat Mohammed al-Madadi was caught smoking in the washroom of a flight. On being caught, he joked about setting off a bomb in his shoe referring to the 2001 suicide bomber scare[vii]. This caused severe commotion in the flight and after delaying the flight for an hour, diplomatic immunity was granted to Mohammed, letting him off without being charged. Along with the loop holes and the various exemptions that are granted to foreign diplomats, the Vienna Convention makes an effort to see to it that the diplomats undergo a stern procedure if accused of felony. After the receiving State declares the diplomat as persona non grata, the diplomat is called back to his/her parent country and tried there. Diplomatic immunity also guarantees that the diplomat is not obligated to stand as witness in any case and this immunity extends to his family.
Diplomatic immunity is of great importance to countries because different countries depend on their receiving counterparts to honor their own diplomats and treat them with due respect. If that is not done, then diplomats would be used as mere pawns between countries and diplomacy would hold no good.
[i] Jovan Kurbalija, Dietrich Kappeler, Christiaan Sys, Evolution of Diplomatic Privileges and Immunities, (2008), http://www.diplomacy.edu/resources/general/evolution-diplomatic-privileges-and-immunities
[ii] Nicolson H (1998), The Evolution of Diplomatic Method. Leicester: University of Leicester Press.
[iii] E-Diplomat Diplomatic immunity (last updated 13th July 2015) http://www.ediplomat.com/nd/diplomatic_immunity.htm
[iv] : Marsha L. Frey, Diplomatic Immunity, Encyclopaedia Britannica.
[v] Vienna Convention on Diplomatic Relations(1961) http://www.corpsdiplomatique.cd/VIENNA_CONVENTION_1961_ON_DIPLOMATIC_RELATIONS.pdf
[vi] DAVID USBORNE, Can a diplomat get away with murder?, The Independent (Friday 10 January 1997)
[vii] James Meikle ,Qatari diplomat ‘smoking’ causes US plane scare ,The Guardian (Thursday 8 April 2010 10.14 BST)