Why diplomatic immunity is a problem

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Given the fact that foreign officials are exempted from liability by the receiving state, a question which naturally arises out of the above analysis is how these duties are enforced and what consequences will follow in case of their breach. It is submitted that the receiving state where the breach has occurred will not be left without any remedy, though not necessarily will it mean a legal remedy.

Such remedies range from ordinary diplomatic measures to the drastic step of severance of foreign relations and are supported by the text of the Vienna Conventions and the general international law as well as state diplomatic practices. Among them, the first recourse which will be open to the receiving state where the breach of duty to respect the local law has occurred is to draw the attention of the head of the foreign mission or the foreign government itself.

Usually, this recourse can be had in such cases where the infraction is of a minor nature or where it has occurred for the first time. However, in cases where the receiving state wants to send out a stern message of the breach, it may summon the head of the mission and express its displeasure. Moreover, the receiving state may also interpret the provisions of the Vienna Conventions in a restrictive manner, although it will be subject to the limits of international law. This may take a number of forms such as a request to downsize the mission, decline permission for establishment of branches of the mission in other localities, prohibit the use of wireless transmitter equipment, impose quotas on the import of certain products used by the mission, or take measures restricting the entry into such zones on grounds of national security.

In other words, what is permitted is diplomatic retorsions and not anything which is expressly prohibited under international law. The above analysis shows that it is not true that the diplomatic and consular duties are completely devoid of any legal merit. On the contrary, the breach of diplomatic duties may have a legal impact and, more importantly, diplomatic and political consequences. Accordingly, the immunity shall not act as a licence to disrespect local laws and regulations even when efficient performance of functions does not demand the deviation.

This underlines the need for delicate balance between the two important but conflicting goals of the Vienna Conventions. The principle of diplomatic immunity is a well-established principle of international law. In fact, diplomacy is a fundamental fact of international life and without which, the international life will be in peril. In other words, it is very essential for the promotion of friendly relations among states, be it trade, peace, security or cultural relations.

The Vienna Conventions, considered as the major achievement of the United Nations, born out of the recognition of these facts. However, in the recent past, it is disturbing to note that diplomatic crimes and misconduct is on the rise. It is observed that the abuse of privileges and immunities by the diplomats as well as by the governments constitute one of the major challenges to the continued success of the Vienna Conventions.

Also, rule of law demands that even the crimes committed by the diplomats should be duly brought to book. However, on many occasions, it is found out that the problem is due to the broad interpretations of the immunities and privileges put upon by the states.

Hence, it is suggested that the process of interpretation should be guided by the theory of functional necessity, which is embodied in the Vienna Conventions. However, in the case of consular officers, the scope of personal inviolability is very much limited in the sense that, they may be liable for arrest or detention for grave crimes, provided such actions are in pursuance of a decision by the competent judicial authority.

Also, in view of the escalations of diplomatic crimes, it is estimated that the true scope of this exception is going to be a major issue in the coming years. Accordingly, it is suggested that certain procedural safeguards may be built into the mechanism of the vccr to provide for balance in sensitive and borderline cases.

It is suggested that in cases where there are differences of opinion between the states as to whether the particular conduct of the consular officer amounts to a grave crime for the purposes of the vccr , the actual arrest should be made in consultation with the sending state, wherever practicable. They mainly include the options of declaration of persona non grata and the waiver of privileges and immunities by the sending state.

Though these options are not very effective in state practice, it is submitted that the broader interpretation of the requirements of waiver should not be viewed as an option to counter the menace of the abuses of the privileges and immunities. It is suggested that any exception to the concept of diplomatic immunity should be interpreted narrowly and in line with the goals and purposes of the Vienna Conventions.

Further, on the question of re-appointment of indicted consular officers to un diplomatic posts, it is pointed out that though the action is not a violation of any specific provision of the Vienna Conventions or the Convention on the Privileges and Immunities of the United Nations, it becomes clear that the conferment of un immunity to such officials will completely frustrate the claims brought against them under the local laws and thereby effectively disturbs the equilibrium of rights and obligations between the sending and receiving states.

It is submitted that un immunity should not be viewed as the legal cover for indicted consular officers. Also, the Vienna Conventions prescribe a number of duties including the duty to respect the laws and regulations and the duty not to interfere in the internal affairs of the receiving state.

However, the consequences for the breach of such duties are not laid down in the Conventions. In the end, it is submitted that, pragmatic solutions need to be devised so that a robust mechanism for dispute settlement is built into the framework of Vienna Conventions.

Though the Optional Protocols to the Vienna Conventions Concerning the Compulsory Settlement Disputes , through its Article ii , enables the parties to resort to arbitration, a dedicated arbitral framework along with a complete overhaul of the Vienna Conventions will go a long way in addressing the contemporary problems. For full text see Vienna Convention on Diplomatic Relations adopted 18 April , entered into force 24 April unts 95 vcdr ; 23 ust ; 55 American Journal of International Law Grant V.

For full text see Vienna Convention on Consular Relations adopted 24 April , entered into force 19 March unts vccr. For a list of such cases, See Mitchell S. It is also equally true that the diplomats are also denied the protection which they are otherwise entitled under the Vienna Conventions. The Tehran hostage case is a clear example for such scenario. Chas W. Arthashastra Sutra 2.

Gautam P. Ramachandra Dikshitar, War in Ancient India 1st edn, cosmo George L. Timothy J. Linda S. David J. Douglas Johnston and W. Stephen C. However, quoting Encyclopedia Britannica, Costas M. Constantinou is of the opinion that the term had its origin only from late eighteenth century.

See Costas M. Generally, B. Craig Barker n 2 42; see V. McClanahan, n 3 In this connection, it is pertinent to refer to Article 3 of the Vienna Convention on Diplomatic Relations vcdr unts 95 as it defines the scope of functions of diplomatic mission.

Similar provisions are there in vccr unts For full text, See vcdr n 1. It is universally accepted with the participation of state parties to the Convention. It had entered into force on 24th April, India acceded to the vcdr on 15 October As it is incumbent upon the Indian government to give effect to the provisions of the convention, it had enacted the Diplomatic Relations Vienna Convention Act, Act No. It was operational with effect from 29 August Convention on the Privileges and Immunities of the United Nations adopted 13 February , entered into force 17 September 1 unts 15; [] ats 3.

Erik M. The subject of abuse of diplomatic immunities and privileges has attracted a large amount of scholarship, especially in the recent times.

William G. A-3, G-5 and B-1 are the types of temporary visas issued by us government for domestic employees who are accompanying an employer or diplomat who is visiting or on temporary assignment in the United States.

Martina E. Vandenberg and Alexandra F. See Mitchell S. Ross n 7 at Recently, in Pakistan, a suspected us Central Intelligence Agency cia contractor, Raymond Davis was charged with the killing of two Pakistani citizens. The us government claimed that he cannot be prosecuted as he enjoyed diplomatic immunity in connection with his employment at the us Consulate in Lahore.

United States v Devyani Khobragade [] 14 Cr. Interestingly, Devyani was not charged for trafficking. Generally, fraud and misuse of visas, permits, and other documents is covered by 18 u. Lalit K. The us Department of State contended that the un immunity applicable to Devyani will only have prospective effect. However, it stipulates that in case of grave crimes, this protection will not be available [ vccr , art 41 2 ]. The uk Act, sec 1 2. Forced Labor, 18 u. India has also ratified both the Convention and the Protocol.

Forced Labor n , sec d. It is suggested that if a consular officer had committed or involved in any one of the international crimes, such as terrorism, drug trafficking, organized crime, no state would be taking a stand that it would not qualify as a grave crime, as every state is affected by such crimes. Moreover, India wanted to accord her the immunity applicable to the representatives of the un with retroactive effect. However, during the credentialing process, the us State Department in its capacity as the host country made it clear that the full diplomatic immunity will be available to her only from the date of joining in the United Nations.

Ibid , art iv , sec 11 and art v , sec The copy of the Complaint is available at the website of the us Department of Justice. Ibid , art 22 2. It could be argued that India had withdrawn only certain discretionary privileges rather than the privileges mandatorily required under the Vienna Conventions. Also, there seems to be no change in its commitment to provide basic security. But still it had to defend the measure that it does not impair the dignity of the mission.

Though there was a series of communications between the government of India and the us , for over a long period of time spanning several months on related issues, no report seems to be available on consultation on the issue of grave crime. Case W. It may be noted that the writings on this case may be classified into two categories, one on the issue of jurisdiction and the other on the issue of diplomatic immunity.

The learned Single Judge held that under the Notification No. The learned Single Judge also held that under the provisions of the sua Act, the State of Kerala has jurisdiction upto nautical miles from the Indian coast, falling within the Exclusive Economic Zone of India. Professor V.

Mani was of the opinion that no need for special court to try this case. Previously, the marines were allowed to go to Italy on the occasion of Christmas by the High Court of Kerala. See K. In the meantime, a public-spirited politician Subramanian Swamy had filed public interest litigation in the Supreme Court and sought action against the diplomat for contempt of court.

It is reported that the Supreme Court had solicited the opinion of the Attorney General of India and in accordance with his advice, ordered an explanation from the Italian Ambassador on the retreat of assurances.

The rationale behind this position is that the diplomatic immunity has been conferred on the diplomat only in the interest of the sending state and hence it cannot be waived by the diplomat himself. Also, on the question of the relationship between the vcdr and the general rules of international law, See the Preamble of the vcdr. They are defined in Sections 2 b and c respectively. For customary origin of this rule, See G.

Ibid , Para 2, art Stefan Talmon n 27; In fact, the diplomat also never tried to leave the country since the Supreme Court had passed the restraining order. Tachiona v Untied States F. Also, there are other incidents in us where the Indian diplomats are involved. See Emily F. Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes adopted 18 April , entered into force 24 April unts ; Optional Protocol to the Vienna Convention on Consular Relations, concerning the Compulsory Settlement of Disputes adopted 24 April , entered into force 19 March unts Article 41 1 vcdr and Article 55 1 vccr ; However, as Table 1 illustrates, there is no corresponding provision in the Convention on the Privileges and Immunities of the United Nations, n For instance, Article 34 of vcdr as well as 49 of vccr generally exempts the diplomatic agents and consular officials and their families from all taxes and dues, whether national, regional or municipal, unless their case falls under any one of the enumerated categories.

Similarly, as illustrated in Table 1, foreign officials cannot be subjected to the process of arrest or detention and their personal inviolability is protected. In matters of traffic regulations, the state practice shows that diplomats are required to abide by the local laws in the interest of safety of everyone. Only provisions in which the local laws of the receiving state having a material bearing on the scope of privileges and immunities are referred here.

In other words, instances in which the foreign officials are exempted from the local laws are not examined here. This is more conspicuous in the case of Vienna Convention on Consular Relations.

See Article 5, Paragraphs f to m. Duquet and Wouters, n 5. In the context of vcdr , he classifies the diplomatic obligations into the following: a obligation to respect the laws and regulations of the receiving state b obligation not to interfere in the internal affairs of the receiving state c obligation to abstain from professional and commercial activities d obligation relating to how the mission conducts its business and e obligations relating to the use of the premises of the mission.

Donogue, Perpetual Immunity for Former Diplomats? The VCDR obliges members of a diplomatic mission to respect the laws of their host countries.

The ongoing viability of the treaty and relations between countries are determined by how much respect is afforded. There have been instances when this has been abused - for example when PC Yvonne Fletcher was shot dead from the window of the Libyan embassy in London in - which have severely affected diplomatic relations.

The decision on who has and who does not have immunity rests with the country which posted a diplomat in the first place. It is not up to the individual diplomat to claim it. Is there anything that can be done if a diplomat with immunity has committed a crime? The CPS is clear that "immunity is dependent on rank and ranges from immunity from criminal and civil and administrative jurisdiction to immunity for official acts only". In reality, the likelihood that a state will assert immunity for one of its diplomats, or their family members, will depend on a number of factors.

The first is how senior the diplomat is, and this can also depend on how sensitive their role is - for example, if they work in intelligence. Ben Emmerson, a London-based diplomatic immunity lawyer, says in the first instance it depends on how close a diplomat's job description is to the role of ambassador. He told Sky News: "The general rule is immunity kicks in the closer you get to the functions of state - so if you are dealing with someone operating at a very high level of a particular state's activities abroad, in their mission, or perhaps in an intelligence capacity then, generally speaking, the scope of the diplomatic immunity is absolute and there is no question of challenging it.

When dealing with spousal protection, that is at one step removed. Much can depend on the state of relations between host country and the country claiming immunity.

Mr Emmerson says: "It's not unusual for states to take a positive approach to waiver if an incident is occurring in a foreign state on which they are on friendly relations and where they have trust in the courts system, to give an independent and impartial verdict.