Diplomatic Immunity | Public International Law - CLAT PG PDF Download

Introduction

Diplomacy involves various means through which states establish or maintain mutual relations, communicate, or conduct political or legal transactions. It includes the exchange of permanent diplomatic missions between states, where both the sending and receiving states have representatives.

Rationale of Privileges and Immunities

• The core of diplomatic relations is to enable the sending government to exercise state functions within the territory of the receiving state with the latter's consent.
• While it was once thought that diplomatic premises were "exterritorial," meaning they fell under the jurisdiction of the sending state, the legal reality is that diplomats act as agents of the sending sovereign state.

Inviolability of Missions

a. Premises

• The premises of a diplomatic mission, including surrounding land, are immune from external interference and protected by the sending state.
• According to Article 22 of the Vienna Convention, mission premises are inviolable, and agents of the receiving state cannot enter without the head of mission's consent.
• The receiving state is obligated to protect the premises, which are immune from search, requisition, attachment, or execution.

b. Archives, Documents, and Official Correspondence

• The archives and documents of a diplomatic mission are inviolable, regardless of their location, including official correspondence.
• The Vienna Convention states that diplomatic bags cannot be opened or detained. However, in the UK, bags may be scanned under specific circumstances due to past abuses, such as drug trafficking, but only in the presence of a diplomatic mission member.

Inviolability of Diplomatic Agents

Article 29 of the Vienna Convention states that the person of a diplomatic agent is inviolable, meaning they cannot be arrested or detained. The receiving State must treat them with respect and take measures to prevent any attack on their person, freedom, or dignity.

• The inviolability of a diplomatic agent also extends to their private residence, papers, correspondence, and property.
• However, there is an exception to property inviolability as stated in Article 31 (3).
• The Iranian government was condemned for holding United States embassy members hostage from 1979 to 1981.
• The International Court of Justice emphasized that Iran violated international law obligations under the Vienna Convention.
• Iran was held responsible for failing to prevent or approving the actions of militants who invaded the U.S. mission in Tehran and took diplomatic personnel hostage.

Personal Immunities from Local Jurisdiction

Introduction

• Diplomatic agents enjoy immunity from the jurisdiction of local courts but are not exempt from substantive law. However, this immunity can be waived, allowing local law to apply. Individuals with privileges and immunity are required to respect the laws and regulations of the receiving state.
• Each state has a standard procedure for determining qualifications for immunity, which must be conclusively proven to local courts.

Persons Entitled to Enjoy Diplomatic Immunity

• Members of the family of a diplomatic agent, if they are not nationals of the receiving state.
• Members of the administrative and technical staff of the mission, along with their families, if they are not nationals or permanent residents of the receiving state. However, their immunity from civil and administrative jurisdiction does not extend to acts performed outside the course of their duties.
• Members of the service staff who are not nationals or permanent residents of the receiving state, but only for acts performed in the course of their official duties.
• Private servants of mission members who are not nationals or permanent residents of the receiving state are exempt from dues and taxes on emoluments received due to their employment. They may enjoy privileges and immunities only to the extent permitted by the receiving state.

Immunity from Criminal Jurisdiction

• Article 31(1) grants a diplomatic agent immunity from the criminal jurisdiction of the receiving state.
• Immunity from Civil and Administrative Jurisdiction
• A diplomatic agent is immune from the civil and administrative jurisdiction of the receiving state except in the following cases:
• (a) A real action related to private immovable property located in the receiving state's territory, unless the agent holds it on behalf of the sending State for mission purposes;
• (b) An action involving succession where the diplomatic agent is involved as executor, administrator, heir, or legatee in a private capacity and not on behalf of the sending State;
• (c) An action related to any professional or commercial activity carried out by the diplomatic agent in the receiving State outside their official functions.

Waiver

• The sending state may waive immunity from jurisdiction, but the waiver must be explicit and not implied.
• Immunity from Jurisdiction for Official Acts
• Immunity for acts performed by a diplomatic agent in line with their official duties is permanent, as it belongs to the sending state. However, immunity for private acts ceases when the agent leaves their post.
• Other Immunities
• Exemption from all duties and taxes, with exceptions such as indirect taxes included in the prices of goods and services. Immunities from customs duties, public service, military obligations, social security provisions, and giving evidence as witnesses.

Duration of Privileges and Immunities

• Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.
• When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
• Termination of the mission may occur through the recall of the diplomatic mission, outbreak of war between the states concerned, or extinction of one of the states concerned.

Consular Relations

• A consul is an official appointed by a government to reside in a foreign country where they represent their government's commercial interests and assist in the welfare of its citizens. Consuls have various functions, including the protection of the sending state and its nationals, the development of economic and cultural relations, and the issuance of passports.
• The term "consul" became widely used in the 18th century and is based on legal principles rather than general usage. The Vienna Convention on Consular Relations, established in 1963, is a key treaty governing consular relations.
• To be appointed as a consul, an individual must have the authority of the sending state and the authorization of the receiving state. The receiving state is responsible for providing special protection to consular officials and their premises.

Consular Immunity Analysis

Introduction

• Consular immunity is a principle in international law that protects consuls from legal action or prosecution in their host country. While similar to diplomatic immunity, consular immunity is not as extensive due to the functional differences between consuls and diplomats.
• Along with the Vienna Convention on Diplomatic Relations (VCDR), the Vienna Convention on Consular Relations (VCCR) forms the foundation of international diplomatic and consular law. These treaties codify modern consular and diplomatic practices, including the immunity principle.
• Unlike diplomats, multiple consul offices may exist in one host country. There are two types of consuls:
• Career consuls are professional diplomats posted by their home government in host countries. They enjoy immunity similar to diplomats.
• Honorary consuls do not earn a living as diplomats. They typically reside, work, and pay taxes in the host country and serve on a voluntary basis until their appointment is revoked. In some cases, they may not be citizens of the country they represent.

The Concept of Consular Immunity

• Consular immunity is crucial for consuls as it enables them to perform their duties without interference from the host state. However, host states have the authority to declare a consul or diplomat persona non grata, meaning they are unwelcome, and the home country must replace them.
• Immunity is granted based on the consular officer's rank and the necessity of immunity for performing their duties. Consular officers do not have absolute immunity from the host country's criminal jurisdiction; they can be tried for certain local crimes by local courts and are only immune from local jurisdiction in cases directly related to consular functions.
• Consuls, serving in consulates, enjoy special protections and privileges in their posted locations. However, they have a lower level of criminal and civil immunity compared to diplomatic officers. Their immunity is limited to acts performed as part of their official duties.
• Career consuls receive various consular immunities, including:
• (a) Criminal and civil suit immunities,(b) Exemption from tax, work permit, social security, custom duties, and inspection,(c) Immunity from arrests by law enforcement agencies,(d) Exemption from public services, including military obligations.
• The premises of consulates are not inviolable from entry by agents of the receiving state concerning acts performed in the exercise of consular functions. However, the host country is responsible for providing protection and security for these premises.

Princess Zizianoff v Khan & Bigelow

• In 1926, Princess Zizianoff, originally from Russia, sued Consul Bigelow for defamation in a French court. Bigelow, an American official in charge of passports and visas at the American Consulate General in Paris, denied the Princess a visa to enter the United States and shared his reasons with the press, including accusations that she was an international spy.
• Princess Zizianoff successfully sued Bigelow and others associated with the Boston Sunday Post in 1927 at the Conventional Tribunal of the Seine. Bigelow appealed, and the case reached the Court of Appeal of Paris in 1928.
• The court ruled that the 1853 Consular Convention did not protect Bigelow from what was deemed a "private act" – sharing negative information about the Princess with the public. The court determined that Bigelow's action fell outside the scope of his official duties.
• Under the 1963 Consular Convention, a consular officer performing a harmful private act would not be protected, unlike under the 1853 Convention.

Situations of Impunity versus Immunity

• Recent actions by consuls and diplomats have raised concerns about the misuse of 'immunity' in cases of serious crimes such as drug trafficking, sexual offenses, and murder. Consular officers and diplomats have sometimes used immunity as a way to evade justice for serious offenses.
• Examples of abuses include drug trafficking, sexual crimes, murders, reckless driving, human trafficking, and firearm trafficking. Some consuls have also left behind unpaid bills or engaged in sexual crimes, highlighting the misuse of consular impunity.
• There have been public calls for stricter monitoring and regulation of consular and diplomatic immunity to prevent such abuses. Critics, like Mr. Joshua Muravchik from the American Enterprise Institute, have pointed out the alarming misuse of immunity, suggesting that it invites abuse.
• Across different continents, countries have experienced a mix of impunity and immunity. For instance, in the USA, consuls have been accused of exploiting tax-exempt real estate as part of their immunity. Some consuls have used properties for profit, and reckless or drunk driving and drug trafficking have been common among diplomats and consular officers. Offenders often escape legal repercussions due to protection granted by consular immunity.