Diplomatic Immunity: A Crucial Element in International Relations and Its Significance for Ensuring Social Stability among Nations

I. Introduction

In the intricate tapestry of international relations, the concept of diplomatic immunity emerges as a cornerstone that not only shapes the dynamics between nations but also plays a pivotal role in maintaining the social stability of countries across the globe. Diplomatic immunity, a privilege granted to foreign diplomats, reflects the acknowledgment of the significance of unhindered diplomatic engagements for fostering understanding and cooperation. This unique status is not merely a legal convention but a crucial element in the delicate balance of global interactions.

As we embark on an exploration of "Diplomatic Immunity in International Relations and Its Importance in the Social Stability of Nations," we delve into the historical roots, contemporary applications, and the broader implications of this diplomatic privilege. From its early conceptualization to its present-day manifestations, diplomatic immunity is not only a shield for diplomats but also a mechanism that ensures the smooth functioning of diplomatic missions, thereby contributing to the overall stability and harmony among nations. This investigation aims to unravel the layers of diplomatic immunity, shedding light on its profound impact on international relations and its indispensable role in the social fabric of nations worldwide.

Historically the diplomatic immunity emerged from the ancient concept of the respect of the messengers who used to deliver the messages of their Kings, or to declare wars, or conclude peace, or address any other issue.

“A king does not kill messengers” - Alexander The Great

Modern day countries are made of the people, by the people and for the people. Be it a democracy or communism the people centric approach that brings together a country through its culture, language and social integrity defines its unique nature. Modern day countries face the challenge of the delicate balance of promotion of trade, commerce, culture to boost economy and protection of the country from foreign espionage. None the less exchange of thoughts, science and culture is the backbone of modern-day economy.

Strong diplomatic ties help the transactions become smoother and resilient. Diplomats are the people bringing these idealistic plans to life. The process is critical and often delicate, subject to influence by any factors. Diplomatic immunity protects Diplomats from criminal prosecution and also in the process protects these negations by separating the country’s intent from the private actions of the diplomats.

Diplomatic relations preserve and strengthen the ties between two nations. Diplomatic immunity protects these delicate yet important ties from the alleged accusations and actions of the diplomats.

Imagine the absence of Diplomatic immunity. It would result in arrest of diplomatic representatives without warrant based on accusations and allegations. Diplomats are only representing their nation. Any such arrest creates an inflammatory situation between the two nations resulting in tension, enmity, misrepresentation and misunderstanding in the society. Often small technical gaps in the understanding between two countries could result in large social impact in the minds of people. Humanity is the core of every country a provocated sway in the opinions of people or negative animosity can result in political unrest which is bad for the economic growth of any modern country.

A good example of this could be the arrest of Diplomatic Immunity In International Relations And Its Importance In Social Stability Of Nations². On December 11, 2013, Diplomatic Immunity In International Relations And Its Importance In Social Stability Of Nations the then Deputy Consul General of the Diplomatic Immunity In International Relations And Its Importance In Social Stability Of Nations of India in New York City, was charged by U.S. authorities with committing Diplomatic Immunity In International Relations And Its Importance In Social Stability Of Nations and providing false statements in order to gain entry to the United States for Sangeeta Richard, a woman of Indian nationality, for employment as a domestic worker for Khobragade in New York. She was additionally charged with failing to pay the domestic worker a Diplomatic Immunity. Khobragade was arrested the next day by U.S. federal law enforcement authorities, subjected to a Diplomatic Immunity In International Relations And Its Importance In Social Stability Of Nations, presented to a judge, and released the same day. Her arrest and treatment received much media attention particularly in India, and led to hurt national pride and a diplomatic row between Diplomatic Immunity in International Relations and Its Importance in Social Stability Of Nations. Hence the understanding of the concept of diplomatic immunity and its socio-legal impacts on the society is an important issue in the public international law.

(A) What is Diplomatic immunity?

Diplomatic immunity is one of the principles of international law which limits the degree to which the officials and employees of foreign governments would be subject to the other country’s authority of police officers and judges³.

(B) Definitions

Diplomatic immunity is a rule of international law. It shields diplomatic agents of the sending State from the jurisdiction of the foreign state where they perform their functions.

The diplomatic relations among the different states have today become a key element in international relations. The diplomatic agents who act in favor of the state’s interests play a crucial role in building a peaceful Internationalized environment of the world.

It basically ensures that the diplomats cannot get prosecuted by the authorities of the receiving state. The acts of diplomacy may be performed by the head of the state, government, Minister of foreign relations, or by Diplomatic Agents.

(C) What are the Functions of Diplomats?

Pillars of diplomatic relations include matters related to exchange of business and trade, cultural exchange and matters related to embassy and passport. Functions of diplomats include–

• Representing the interests of nation
• Protecting the interests of nation
• Negotiating on behalf of the interests of nation
• Reporting to the nation
• Promoting friendly relations
• Consular functions

Diplomats generally involve people such as Ambassadors, Consuls, Envoys and Ministers.

II. Historical evolution in india

In India traces of diplomatic relations can be found in the book Arthashastra written by the great Sanskrit scholar Kautilya. It introduces us to early Indian diplomatic history. The king Ashoka had a spirited diplomatic system. Manusmriti also includes the rules relating to diplomacy.

(A) Basis of Diplomatic Immunity

Different International jurists have introduced us to certain theories that very well explain the concept of diplomatic immunity.

(B) Extraterritoriality Theory / fictional theory

Extraterritoriality Theory, also known as the fictional theory in international law, grants immunity to diplomats and agencies conducting operations in a foreign country, exempting them from the jurisdiction of the host nation. However, it is essential to note that despite this exemption, these diplomatic individuals and agencies are still held accountable to the legal frameworks of their home country.

The genesis of the extraterritoriality theory is attributed to French legal theorist and jurist Pierre Ayraut. According to Ayraut's proposition, specific individuals and entities, while physically present within the borders of a foreign sovereign, exist beyond the reach of the local judicial process. In other words, this theory introduces a legal concept where diplomats and their agencies are treated as if they were situated within their home country, subject to the legal obligations and privileges associated with that jurisdiction.This theory operates on the principles of reciprocity and mutual respect between nations, aiming to facilitate diplomatic engagements by providing diplomats with immunity from potential legal entanglements in the host country. Nevertheless, it underscores the importance of upholding accountability to the legal standards of the diplomats' home country. In essence, the extraterritoriality theory navigates the intricate balance between sovereign equality and the imperative of fostering cooperative international relations.

(C) Representative Character Theory

In accordance with this theory, the host state is expected to treat representatives of other states as if they were interacting directly with the sovereign state. The principles of diplomatic privileges and immunities rest on the concept that an attack on a diplomat should be perceived as an assault on the ruler or sovereign of the sending country. Diplomats are viewed as representatives of their nations and, as such, should be treated equivalently. This ensures that diplomatic agents are not brought under the jurisdiction of the receiving state, emphasizing the preservation of their status as representatives of their home country.

(D) Functional Necessity Theory

In accordance with this theory, the host state is expected to treat representatives of other states as if they were interacting directly with the sovereign state. The principles of diplomatic privileges and immunities rest on the concept that an attack on a diplomat should be perceived as an assault on the ruler or sovereign of the sending country. Diplomats are viewed as representatives of their nations and, as such, should be treated equivalently. This ensures that diplomatic agents are not brought under the jurisdiction of the receiving state, emphasizing the preservation of their status as representatives of their home country.

(E) Reciprocity Theory

The reciprocity theory asserts that the favors, penalties, and benefits extended by one state to the diplomats of another state should be reciprocated with dignity and kindness. This reciprocity can manifest in various ways, such as the mutual reduction of tariffs, easing visa requirements, lifting travel restrictions, and similar measures.

(F) International Peace Theory

The theory of international peace, formulated by the 18th-century German scholar Immanuel Kant, posits that democratic states have effectively preserved peace and security, displaying a reduced likelihood of engaging in war with each other. Conversely, democratic states have demonstrated a greater propensity to initiate conflicts with non-democratic states.

Year 1815 Congress of Vienna treaty on rights of diplomats

The first attempt to codify diplomatic immunity into diplomatic law occurred with the Congress of Vienna in 1815.

Year 1961 Vienna Convention on Diplomatic Relations

The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries. Its aim is to facilitate "the development of friendly relations" among governments through a uniform set of practices and principles; most notably, it codifies the longstanding custom of diplomatic immunity, in which diplomatic missions are granted privileges that enable diplomats to perform their functions without fear of coercion or harassment by the host country. The Vienna Convention is a cornerstone of modern international relations and international law and is almost universally ratified and observed; it is considered one of the most successful legal instruments drafted under the United Nations.

The Vienna Convention has come is an essential tool in International Law which provides the rules and other various aspects of diplomatic conduct and has control all over the world and is treated as the reference point when dealing the concept of diplomatic immunity.

This year marks 60 years of the Vienna Convention on Diplomatic Relations. The Vienna Convention provides the legal basis for diplomatic immunity. It outlines the rules of diplomatic relations. It is to enable States to develop economic, cultural and scientific relations. As of June 2020, there are 193 state parties to the Vienna Convention, including China and all UN member states – with the exceptions of Palau and South Sudan.

Year 1972 The Diplomatic Relations (Vienna Convention) Act, 1972

It is An Act to give effect to the Vienna Convention on Diplomatic Relations, 1961 and to provide for matters connected therewith. The provisions of Vienna Convention are followed in India through this act.

Apart from the above, Vienna Convention on the Law of Treaties (1969) and Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) has played a role in shaping legal framework of international relations.

III. Immunities and privileges

The different immunities and privileges which are granted to the diplomatic agents given in The Vienna Convention are as follows:

1. Inviolability of Diplomatic Agents

Article 29 of the Vienna Convention lays down that a diplomatic agent shall be inviolable. He shall not be held liable for any arrest or detention. The host state shall take all relevant steps to prevent any attack on his persons, dignity or freedom.

2. Inviolability of Premises

A permanent diplomatic mission needs premises from which it can operate and the host state must help the other state in obtaining premises for the mission. Article 22 of the Vienna Convention stipulates the customary rule of International law which states that ‘the premises of the mission shall be inviolable’.

Except otherwise provided by the consent of the head of the mission, any member or agent of the host state should not enter their premises.

3. Immunity from Local Jurisdiction

Diplomats enjoy immunity from the jurisdiction of the local courts. The immunity extends to criminal jurisdiction as well as to civil and administrative jurisdiction.

4. Immunity from giving Witnesses

Diplomatic agents are immune from being presented as witnesses in a civil, criminal, or administrative. Article 31(2) of the Vienna Convention provides that a diplomatic agent is not obliged to give any evidence as a witness in any case.

5. Immunity from taxes and custom duties

Article 34 of the Vienna Convention provides that diplomatic agents shall be exempted from all duties and Taxes imposed, whether personal or real, national, regional, or Municipal.

6. Immunity from inspection of personal baggage

The bag used by the diplomatic mission for sending letters, documents, and articles to thesending States or to other missions of its States abroad is called a diplomatic bag.

Article 27 of the Vienna Convention provides that the diplomatic bag of the envoy shall not be open or detained. However, the general practice of exemption is with the proviso that the inspection can be conducted in the presence of the diplomatic agent if required, or if there are serious grounds for suspecting that the articles are illegal and not for the official use.

7. Freedom of communication

Article 27 of the Vienna Convention lays down that the freedom of communication includes the use of couriers and code messages. Diplomatic agents are free to communicate any information for official purposes to the home state by which they are accredited.

8. Freedom of movement and travel

Article 26 of the Vienna Convention provides that the diplomatic agents are free to move and travel in the territory of the host state.

But this is subject to the laws and regulations made by the receiving States concerning the prohibited security zone.

9. Right to Worship

The diplomatic agents have a right to worship any religion they like within the premises. But they do not have the right to preach their religion in the receiving state.

10. Immunity from local and military applications

Article 35 of the Vienna Convention states that diplomatic agents are exempted from localand military obligations of the receiving state to which they are accredited.

(A) Restrictions On Privileges and Immunities

1. Article 4 of the Vienna Convention on Diplomatic Relations

This article stipulates the restrictions on privileges and immunities. It states that “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.”⁴

It goes both ways as it is a duty of a diplomat to respect the lase of the host state, the diplomat must also get the level of privileges and immunities as provided by the act. Other wise, the government may take action, by releasing the notification in its official Gazette, on such instance, as it considers to be proper.

2. Article 9 Vienna Convention on Diplomatic Relations

(Principle of Persona non grata)

It is an effective kind of safeguard to the receiving state that has foreign diplomats who are misusing or exploiting their privileges and immunities to an extent that is unacceptable or unavoidable to the receiving state.

The Vienna Convention provides that a receiving state may declare any diplomatic agent as Persona non grata if he/she abuses or violates his immunities and privileges allotted to him for such diplomatic mission.

Justifications for such actions are as follows:

• if the diplomat has acted inappropriately or has violated the social norms and/or showed antisocial behavior;
• or when such a person misuses his immunity for committing criminal offenses;
• or where the diplomat acts aggressively towards the state and risks the security of the state;
• Another reason might be where the state declares the foreign diplomats as persona non grata for revenge purposes, to put pressure on another state to negotiate.

India was once asked to to waive off diplomatic immunity for Anil Verma⁵. Britain asked India in the year 2011 to waive off the diplomatic immunity for Anil Verma, a senior Indian diplomat accused of assaulting his wife, saying it does not tolerate envoys working in the UK breaking the law.

When a diplomat is pronounced as persona non grata, such person is no more considered as the member of such diplomatic mission and hence loses his diplomatic immunity.

And after such a pronouncement if the person commits any further act, he may face the legal proceedings. After that the diplomatic functions of the individual are terminated.

Article 9 of the Vienna Convention states that:

• “The receiving state at any time and without explaining its decision may notify to the sending State that the head or any envoy of the diplomatic mission is deemed to be as Persona non grata.”⁶

In such case, the sending State, considers it appropriate to call such person back to the home state. If the sending state fails to accomplish its duties or obligations within the specified time period then in such a situation, the host state may refuse to recognize that person as a member of that diplomatic mission.

Article 9 of the convention states that the host country can declare any member of the diplomatic staff of a mission persona non grata at any point in time and for any reason. Such a person must be recalled by the home country of the person within a stipulated time period, or else he stands to lose his diplomatic immunity. In May 2020, two Pakistani officials from their mission were declared persona non grata by the Indian Government for indulging in activities incompatible with their status as members of a diplomatic mission.⁷

In the govt. press release it was quoted “Expulsion of two Pakistan High Commission Officials (May 31, 2020) Two officials of the High Commission of Pakistan in New Delhi were apprehended today by Indian law enforcement authorities for indulging in espionage activities. The Government has declared both these officials persona non grata for indulging in activities incompatible with their status as members of a diplomatic mission and asked them to leave the country within twenty four hours.”

(B) Key Principles of Diplomatic Immunity

a. Exemptions and Immunity from State Jurisdiction

Jurisdictional immunity states that the persons with diplomatic immunity cannot be brought before the courts for the allegations of any unlawful acts or offenses committed civil, criminal, or administrative while being in the State during the tenure of their diplomatic mission.

Thus, a diplomatic envoy who commits an unlawful act in the state where he is deputed for the diplomatic mission cannot be prosecuted in the local courts.

The general reasoning behind the jurisdiction of criminal matters is to prosecute and punish those people who commit unlawful or illegal acts.

Immunity from criminal jurisdiction of a diplomatic agent is provided in Article 31.

It is contrary to the very spirit of the rule of law and justice.

But this doesn’t exempt the person from the liability as such person can be prosecuted for the same offences in the home state, for his actions in the host state.

b. Theory of Non-Interference

The principle of non-interference states that the Sovereign state shall not intervene in each other’s internal affairs.

It is the common principle of contemporary international law. The of non-interference is a show of “respect for state’s sovereignty and territorial integration” which further governs the relations between the states in regards to their rights and obligations.

c. Rule of Reciprocity: (Absolute immunity)

Reciprocity in international law can be best described as a creator of a balance between the interests and actions of the state.

The system of public international law is a decentralized system. there is no overruling legal authority to establish, adjudicate, or to enforce all International rules.The Reciprocity principle plays a prominent role here.

The principle or rule of reciprocity in international relations suggests creating an environment where the states help and support each other under a reciprocal relationship.

Mighell V. Sultan of Johore Case⁸

Facts:

The sovereign status of a Sultan was an Issue in one of a court case in England.

When Miss Mighell sued the Sultan of Johor who was traveling incognito in the State of the United Kingdom for breach of promise of marriage.

The Court granted the Sultan an “independent sovereign” immunity from its jurisdiction.

The decision was on the basis of a letter from the Secretary of State for the Colonies stating that “generally speaking, [the Sultan] exercises the usual attributes of a sovereign ruler without any sort of question.” This further demonstrates the British recognition of the Sultanate of Johor as an independent State.

Issue: Whether sultan Johor will get diplomatic immunity or not?

Decision: Court held that the Sultan of Johor will get the diplomatic immunity as an “independent sovereign”.

Principle: Foreign sovereign shall be treated as an independent sovereign and therefore should have immunity from the local jurisdiction.

d. Personal Inviolability

Article 29 of the Vienna Convention provides that “a diplomatic envoy shall not be liable to any form of arrest or detention and the receiving state shall give him due respect or care and shall take all the necessary steps to prevent any attack on him, his dignity or freedom”. The principle of personal inviolability has close relation to the concept of diplomatic immunity.

e. Doctrine of Restricted Sovereign Immunity

The increasing involvement of states in World Trade activities led to the development of a more restrictive approach to State Immunity, where a distinction is drawn between acts of a foreign sovereign nature (acta jure imperii) and acts of a commercial nature (acta Juregestionis). Under this restrictive approach, Immunity is only available in respect of acts resulting from the exercise of a Sovereign power. As such States may not claim immunity in respect of commercial activities or over commercial assets.

IV. India and vienna convention

India acceded to the Vienna Convention on Diplomatic Relations in 1965. India enacted the Diplomatic Relations (Vienna Convention) Act, 1972 to give effect to the Vienna onvention.

In the Kulbhushan Jadhav case, the International Court of Justice (ICJ) informed the United Nations General Assembly that Pakistan violated the Vienna Convention on Consular Relations by not granting consular access to Jadhav. In the case, Pakistan had wrongly stated that the convention does not apply to persons suspected of espionage. The ICJ also noted that Pakistan informing the Indian consulate of the arrest of Jadhav some three weeks after the arrest was in violation of the provisions of the convention.

(A) Cases when Pakistan breached Vienna Convention

a. Torture of an Indian Diplomat in Pakistan

In May, 1992 an Indian diplomat named Rajesh Mittal was tormented and questioned for about seven hours.⁹ Later, he was discharged on charges of acquiring secretive documents. It is to be noted that, just a month prior to this occurrence, a Pakistani diplomat was terminated from India on the charges of espionage.

The torture which Mittal faced was presumably in reprisals of the said Indian action. Most likely as an act of retaliation, the following day, India announced two Pakistani diplomats namely, Counsellors Zafarul Hassan and Syed Fayaz Mahmood Endrabi ‘persona non-grata’, i.e., undesirable people, and asked the Pakistani High Commission to call back them within a period of 48 hours.

When India announced Pakistani diplomats as persona non grata, it was in conformity with the Vienna Convention and the rules of international law.

But, the torment of an Indian diplomat by Pakistani insight authorities is an egregious infringement of the principle of inviolability of the individual of a diplomatic envoy, as cherished under The theory of international peace, formulated by the 18th-century German scholar Immanuel Kant, posits that democratic states have effectively preserved peace and security, displaying a reduced likelihood of engaging in war with each other. Conversely, democratic states have demonstrated a greater propensity to initiate conflicts with non-democratic states of the Vienna Convention on Diplomatic Relations, 1961.

The principle of the inviolability of the individual of the diplomatic envoy and the commitment of the receiving State to ensure the inviolability of the workforce of the mission has been maintained and reaffirmed by the International Court of Justice on account of the United States Diplomatic and Consular Staff in Tehran (1980).

b. India v. Pakistan¹⁰

In The theory of international peace, formulated by the 18th-century German scholar Immanuel Kant, posits that democratic states have effectively preserved peace and security, displaying a reduced likelihood of engaging in war with each other. Conversely, democratic states have demonstrated a greater propensity to initiate conflicts with non-democratic states., India moved to the International Court of Justice, in 2017, when Kulbhushan Jadhav, an Indian national, was condemned to death by a Pakistani military court for his supposed involvement in espionage and terrorist activities.

During Jadhav’s whole trial process, India was not granted any consular access to him, in spite of several requests. At the ICJ, India claimed that Pakistan abused its commitments under The theory of international peace, formulated by the 18th-century German scholar Immanuel Kant, posits that democratic states have effectively preserved peace and security, displaying a reduced likelihood of engaging in war with each other. Conversely, democratic states have demonstrated a greater propensity to initiate conflicts with non-democratic states., which is a multilateral treaty signed in 1963 that sets down standards for consular relations between free sovereign states.

Under Article 36 of the Vienna Convention on Consular Relations, nationals of the sending State reserve the option to get access to consular officials of their State. Likewise, the receiving State is under a commitment to inform the consular post of the sending State, if a national of the latter is captured. Additionally, consular officials reserve the option to visit such a national of the sending State to talk and correspond with him, and to arrange for his legal representation.

The ICJ concurred with India and inferred that Pakistan violated Article 36 of the Vienna Convention on Consular Relations for the accompanying reasons:

• Firstly, Pakistan failed to inform Jadhav of his privileges under Article 36 of the Convention on Consular Relations.
• Secondly, Pakistan failed to notify the particular Indian consular post in Pakistan about Jadhav’s confinement.
• Thirdly, Pakistan denied India’s consular officials to approach Jadhav, and to render him help including arranging for his legal representation. The ICJ also stated that, in Jadhav’s case, the Vienna Convention was applicable irrespective of claims that he was involved in espionage.

V. Conclusion

The principle of diplomatic immunity is a cornerstone in Public International Law, serving as a foundational element of international relations critical for maintaining the standing and integrity of nations. Diplomacy itself is an indispensable aspect of international law, playing a pivotal role in facilitating trade, ensuring security, fostering peace, and promoting cultural relations among states. The absence of diplomatic immunity can result in political unrest, social discontent, and a dent in national pride.

Throughout history, jurists have formulated various theories supporting the legal framework of diplomatic immunity, emphasizing its importance in establishing harmonious relationships between states. Diplomats are granted immunity to effectively carry out their functions as representatives of the Head of State. While these rights and immunities are not absolute, they may be subject to compromise or waiver under specific exceptions.

The Vienna Convention stands as a significant milestone in the realm of international relations, representing a major success for the United Nations. It outlines the necessary immunity for diplomats, accompanied by reasonable restrictions. This diplomatic immunity serves a dual purpose by safeguarding both the diplomat and the host country, preserving their right to peaceful coexistence.

*****