The Convention of diplomatic immunity-intended to prevent embassy staff being harassed when operating in hostile countries-is a long-standing cornerstone of International Relations that dates back centuries prior to being enshrined in the Vienna Convention. –Gagan Pratap Singh*
The Vienna Convention of 1961 defines a framework for diplomatic relations between sovereign countries. It specifies the privileges of a diplomatic mission that enables diplomats to perform their function without fear of coercion or harassment by the host country, however, The Vienna Convention also recognized some duties for diplomatic agents.
Before discussing the immunities and privileges of the diplomatic agents, it is important and vital to know the basis behind it.There are two theories of diplomatic immunities and privileges;
1.Theory of Extra-territoriality and
2.Functional Theory. According to former, i.e. theory of extra-territoriality,
The diplomatic agents enjoy immunities and privileges because they are deemed to be outside the jurisdiction of the states in which they are appointed, and latter i.e. Functional theory, in fact, the true basis of the immunities and privileges, explains that they are given certain immunities and privileges because of the special functions they perform.
The Vienna Convention provides many immunities and privileges, for instance, Inviolability of persons of envoys, Immunity from criminal jurisdiction of the court, Immunity from civil jurisdiction, Immunity regarding residence, Immunity from being presented as witness, Immunity from tax dues,etc, Immunity from police rules, Right to worship, Right to exercise control and jurisdiction over their officers and families, Right to travel freely in territory of the receiving state, Freedom of communication for official purpose, Immunity from local and military obligations,etc. Article 29 of the Vienna Convention clearly states that “The person of a diplomatic agent shall be inviolable”. He 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 and dignity”. Hence the diplomats enjoy their immunities and privileges in the state in which they are appointed above all the municipal laws of the host state.
The Increasing Number of Cases of Misusing the Immunities
The Convention of diplomatic immunity-intended to prevent embassy staff being harassed when operating in hostile countries-is a long-standing cornerstone of International Relations that dates back centuries prior to being enshrined in the Vienna Convention.
The system has always been controversial and continued today-not least since PC Yvonne Fletcher was shot dead outside the Libyan Embassy in 1984.
In 2010, the then Foreign Secretary of UK William Hague released details of 18 crimes including sexual assault, human trafficking, threats to kill and drink-driving of which diplomats in the UK had been accused during 2010.
In 2013, Indian Deputy Consul General Devayani Khobragade was arrested in New York on suspicion of making false statements on a visa application for her housekeeper, and perjury, over the payment of her Indian housekeeper. This incident led to a major diplomatic standoff between India and the United States.
Since her role as a consul did not provide immunity but the Indian Government moved her to a position at the UN, where she would be covered by immunity. Khobragade denied any wrongdoing.
Qatari Sheikh Khalid Hamad Al-Thani left the US abruptly after video footage emerged showing his Ferrari drag racing through Beverly Hills; whether or not he had diplomatic immunity was disrupted, and it was never established who was driving.
Russian diplomat Dmitry Borodin was arrested in the Netherlands and detained for three hours by police, despite his diplomatic immunity; Local media reported that police were called over alleged mistreatment of children and that Borodin was drunk when arrested.The Russian Foreign ministry and Borodi vigorously denied all allegations.
In 1987 Georgian diplomat Gueorgui Makharadge had his diplomatic immunity waived after he caused a five-car-pile up in Washington DC resulting in the death of a teenage girl.
Saudi diplomat accused of holding captive, beating, and repeatedly raping two Nepali women hired as domestic servants in New Delhi and left India under diplomatic ground.
Besides these, there are many other cases, recently, diplomatic controversy in the Maldives over Indian diplomatic agent, in which the immunities of diplomats being questioned from time to time.
Need to Articulate a Strict Law?
The misuse of immunities and privileges by the diplomats have led to calls for the whole system to be overhauled. Human Rights Activists emphasized on the re-examination of Vienna Convention,1961.They accused that Vienna Convention made sense in the days of cold war-when embassy staff working in hostile nations were at risk of being framed or caught in honey traps.
Human Rights Barrister Geoffrey Robertson QC says,”I think the Vienna Convention needs redrafting to limit immunity. I don’t think diplomatic immunity should extend to any civil case”.
However, the supporter of the system says it is necessary to prevent the diplomats being harassed and most importantly it is vital for the principle of extra-territoriality of sovereign states.They argued that the system is not intended to benefit individuals personally and the Vienna Convention expects diplomats abide by the law of their host countries and not to interfere in the internal matters of the host countries.
Considering both the grounds, humanitarian and extra-territoriality of the state, we found the degradation of ethical values of diplomats and the isolation from the spirit of an international entity. The Signatory parties of The Vienna Convention should be consensus on the drafting of obligatory Rules and Regulations for diplomats so that the misuse of immunity can be checked.
*Gagan Pratap Singh is an Observer of national and global changes, immense interest in writing. He’s also a Social Worker at SPRAT. He could be reached at firstname.lastname@example.org
The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views of The Kootneeti Team.