Law of diplomatic relations is of ancient origin. It derives strength from the concept of ‘Sovereign Equality’ and ‘Sovereign Immunity.’ International relations of different nation states in pursuit of their national interest and goals have witnessed a sea change. Nation-states today interact not only with other states but also with international system, organizations, social groups and so on.

Many principles of diplomatic community have been for a long considered to be customary law. Diplomats formally represent the sovereign and hence the receiving state grants certain privileges and immunities to them so as to ensure that they carry out their duties effectively. These are normally provided on a reciprocal basis.

These diplomatic privileges and immunities were previously absolute. Now it’s a matter of functional necessity. They are restricted only to the official acts of diplomats now. Traditionally, diplomats enjoyed these immunities and privileges out of the theory of ‘extra-territoriality’ as diplomats were deemed to be outside jurisdiction of state.

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Today, however, they enjoy it out of the special functions that they perform. The Supreme Court of Australia has also ruled that diplomatic agents enjoy certain immunities and privileges because of special functions that they perform.

Originally they were granted these immunities on a bilateral and ad hoc basis. It however paved way for misunderstandings, hostility, and often conflict between nation-states. The weaker states were vulnerable in this deal.

The United Nations thus codified these rules on diplomatic relations through ‘Vienna Convention on Diplomatic Relations, 1961’ which was adopted on 18th April,1961. It was entered into force on 24th April, 1964.

The codification of these rules into a law (convention) that has been ratified by 192 states as of October, 2018 facilitated efficient conduct and regulation of international relations.

The functions and interactions of states on international level are of varied nature. Consuls who are representatives of states also discharge a vital function of looking after the commerce and trade interests of their countries.

In view of this important function rendered by them, a convention entitled Vienna Convention on Consular Relations was adopted on 24th April, 1963. It came into force on 19th March,1967. It has been ratified by 179 countries as of May, 2016.

Those issues which are not explicitly regulated by the above two conventions continue to be governed by the rules of customary international law. ICJ has time and again reiterated that these conventions continue to apply notwithstanding the nature of relations shared by states and even during state of armed conflict between the states concerned. (Democratic Republic of Congo v.Uganda, ICJ Reports,2005 pp.168,274)

It’s pertinent to note that these privileges and immunities have been often in the eye of storm due to its abuse, misuse and overuse by diplomatic agents of state. Let’s peep into some of the important provisions and case laws of Vienna Convention on Diplomatic Relations(VCDR), 1961 –

It’s not obligatory for nation-states to establish diplomatic relations under any international law. Such relations are carved out of reciprocity and mutual consent between two or more states. Art 2 of Vienna Convention expressly states that the establishment of diplomatic relations between states and of permanent diplomatic missions takes place by mutual consent.

The consent of receiving state for sending the mission and for the person as head of the mission must be taken by the sending state. Besides, receiving state is not obliged to give reasons to the sending state for refusal of consent as provided in Art 4 of the convention.

The receiving state even holds discretion of declaring any member of diplomatic mission as ‘persona non grata’ at any time. They may declare him as unrecognized and unwelcomed as dignitary. In such a case, the sending state shall either recall the person concerned or terminate his functions with the mission as provided in Art 9 of the convention.

Some of the main functions of diplomatic mission as enumerated in Art 3 are representing the sending state, protecting the interest of sending state and its nationals, negotiating with the Government of the receiving state, reporting the conditions and developments in receiving state , promoting friendly relations between receiving state and sending state, et al.

Its obligation upon all the persons enjoying diplomatic privileges and immunities not to interfere in internal affairs of the receiving state and to respect its laws and regulations as enumerated in section 41.

The heads of the mission are classified into three classes as highlighted in Art 14 of the convention namely – 1.ambassadors or nuncios, envoys 2. Envoys, ministers, and internuncios and 3. Charges d’ affaires.

The premises of the mission shall be inviolable as enumerated in Article 22. The agents of receiving states may not enter them, except with the consent of the head of the mission. This is an ‘absolute rule’ as held in Third Avenue Associates v. Permanent Mission of the Republic of Zaire to the UN 988 F.2d 295(1993); 99 ILR p.194

This inviolability extends even to members of diplomatic mission (Art 29), property ,furnishings, premises, means of transport, and archives which are immune from search, requisition, attachment or execution. This inviolability must be respected by receiving state. Art 23 provides for general exception from taxation in respect of mission premises.

THE IRANIAN HOSTAGES CASE (USA V. IRAN), ICJ REPORTS, 1980

The embassy of USA in Tehran and all diplomatic personnel were held hostages in 1979 by militants. The assault continued for three hours, Iranian Government made no attempts to rescue the hostages. The militants were not persuaded by Government to terminate their action against embassy. Archives, documents were seized by militants.

USA approached ICJ with a contention that Iran has violated its obligations to USA under Vienna Convention on diplomatic relations 1961. ICJ held that militants had no official status and their conduct can’t be regarded as imputable to the state of Iran, but Iran Government had failed altogether to take any appropriate steps to protect the embassy premises, staff and achieves.

Iran’s conduct was in conflict with international obligations that Iran owed to USA under Art 22 of VCDR, 1961 wherein it was duty of Iran as a receiving state to take all appropriate steps to protect premises of mission against any intrusion or damage.

Iran had infringed its categorical obligations, observed the court. It instructed Iran to immediately release the nationals of USA held as hostages and place the premises of embassy in hands of protecting power. Iran was held under an obligation to make reparation for the injury caused to USA, ruled ICJ.

It’s an established principle that the person of a diplomatic agent is regarded inviolable. It’s incorporated under Article 29 of Vienna convention which states that diplomatic agents shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

ARREST OF INDIAN DIPLOMAT DEVYANI KHOBRAGADE IN US

Devyani Khobragade, an Indian consular agent was arrested on 12 December,2013 on charges of visa fraud and making false statements to the Government of USA. Khobragade had allegedly submitted an employment contract to US state department in support of visa application of her domestic help, Sangeeta Richard.

It’s imperative to understand that at the time of her arrest, she was serving as a consular agent and hence was immune from proceedings of law enforcement agencies in light of Art 41( 1) of VCCR which expressly states that –Consular officers shall not be liable to arrest or detention pending trial, except in case of a grave crime and pursuant to a decision by the competent judicial authority.

The contention of US was that the allegations against Ms. Devyani were pertaining to her ‘personal acts’ and not her ‘official acts’. It was thus argued that she was not immune from prosecution in court owing to the nature of allegations which were personal. Indian authorities, on the other hand continued pressing that -for her arrest to be made legal , USA besides proving its jurisdiction of prosecution will have to establish that allegations leveled against her are of grave offence. It was also expected of USA to clarify whether her arrest was pursuant to a decision by a competent judicial authority.

Devyani was subsequently released on bail , but USA was adamant on her prosecution. Meanwhile, Indian Government declared that Devyani has been appointed to permanent mission of India to UN. As she had acquired diplomatic immunity following her appointment, US reviewed her bail conditions in order to allow her to leave the country.

On 12th March, 2014, Judge Shira Scheindlin ordered that all charges against Khobragade be dismissed. As Khobragade had received diplomatic immunity from UN on 8th Jan,2014 and she held that immunity until 9th January,2014 on which day she left the US. Since indictment was issued on 9th January, the court held that “the Government may not proceed on an indictment obtained when Khobragade was immune from the jurisdiction of court.”

The order has however left an option open for a fresh indictment once Khobragade returns USA without any diplomatic immunity. Public Prosecutor, Preet Bahara had officially stated that- “there’s currently no bar to a new indictment against her for her alleged criminal conduct, and we intend to proceed accordingly.”

An interesting issue of acquiring immunity during pendency of proceedings came up in Devyani’s arrest case. The debate over abuse of diplomatic immunity and it hindering the administration of criminal justice in receiving state suddenly gained momentum.

In most of the cases where a diplomat of sending state receives a raw deal in receiving state , the response from former is equally unfriendly and is often considered to be an ‘act of retorsion’ . The way Indian authorities had removed barricades in front of US embassy after Devyani’s arrest is evidentiary to it.

Some of the other immunities and privileges of diplomatic agents are- immunity from civil and criminal jurisdiction of court of the receiving state. Immunity regarding residence as residences of diplomats are generally regarded inviolable, Immunity from being present as a witness, immunity from taxes, immunity from police rules, immunity from the local and military obligations, immunity from inspection of diplomatic bag(Art 27) .

In case of consular bag, however, as per Art 35(3) of VCCR, 1963 if competent authorities of receiving state have serious reasons to believe that bag contains something other than consular correspondence, documents or articles, the authorities may request that the bag be opened in their presence by an authorized representative of the sending state. If this request is refused by authorities of sending state, bag shall be returned to its place of origin.

CAN A DIPLOMATIC AGENT WAIVE HIS IMMUNITY?

A diplomatic agent may waive his own immunity. When a diplomatic agent presents himself as a witness in court of law unconditionally, it will be deemed that he has waived his immunity. Such a waiver must be however always express as enumerated in Art 32 of Vienna convention. Such immunity may be waived even by a sending state.

In light of foregoing discussion, it can be concluded that today the diplomatic immunities and privileges accorded to agents and consuls are not exclusive, absolute or blanket kind, but they pertain only in relation to the ‘official acts’ performed by them.

In cases of grave offences committed by diplomats in their personal capacities, they can be prosecuted by receiving state pursuant to a decision by the competent judicial authority. In garb of diplomatic immunity, society as a whole cannot be victimized by dismissal of valid criminal proceedings that are essential to protect the public interest.