Evolution of Diplomatic Immunity
29
Chapter 2: Evolution of Diplomatic Immunity
“Great Men are chosen by fate; the mortal diplomats pass examinations.”
S. Sofer1
2.1 Introduction
Robert H. Ferrell, in his book American Diplomacy says “Diplomacy is the
game of angels and devils”. Jules Cameon said “Unlike the military, the diplomat is
not the spoilt child of historians.” The art of diplomacy is as old as man that the first
diplomats may have been the angels who served as angeloi or messengers between
the heaven and earth.
The Preamble of the Vienna Convention states “Recalling that people of all
nations from ancient times have recognized the status of diplomatic agents…”
Building on this statement diplomatic immunity has been a facet of diplomatic
relations for countless years, and is regarded as one of the oldest branches of
international law. With the concentration of States in a geographical area interaction
between States was inevitable, especially with the existence of a common language,
culture or religion.2 Envoys have since time immemorial been specifically chosen
and sent in order to deliver messages, receive replies and report on any news from
foreign States. These functions ensured the development of special customs on the
treatment of ambassadors and other special representatives of other States. Necessity
forced most States to provide envoy’s with basic protection, both within the State of
final destination and in States of transit.
The special immunities and privileges related to diplomatic personnel
developed in part, as a consequence of sovereign immunity and the independence and
equality of States.3 With the establishment of permanent missions, sovereigns
acknowledged the importance of ambassadors stationed in foreign States in order to
negotiate and gather information. As the nature and functions of diplomats changed
1 Sofer, ‘Being a ‘Pathetic Hero’ in International Politics: The Diplomat as a Historical Actor’,
Diplomacy and Statecraft, 2001, p.110. 2 Parkhill ‘Diplomacy in the Modern World: A Reconsideration of the Bases for Diplomatic Immunity
in the Era of High-Tech Communication’, Hastings International & Comparative Law Review, (1997-
1998) p.568 3 Shaw, M.N. International Law, (4
th (Ed) Cambridge: Cambridge University Press), 2002, p.523
Evolution of Diplomatic Immunity
30
from messenger to negotiator and in some instances to spy, so the legal basis of
justifying diplomatic immunity changed.
Ambassador William Macomber once described diplomacy as “the angles’
game”. Ambrose Bierce defined diplomacy in his Devil’s Dictionary (1906) as “the
patriotic are of laying for one’s country.” Diplomacy is a very ancient profession and
its origin can be traced back to the drawn of history. The beginning of organized
diplomacy can be traced to the times of the city states of ancient Greece, although
prior to that too a rudimentary type of diplomacy existed.4
Nicolson entertains the idea that tribes of cave-dwelling anthropoid apes
would probably have had dealings with one another in such matters as drawing the
limits of their relevant hunting grounds and bringing to an end a day’s battle.
Although his speculation cannot be proven, Barker believes it is not an unreasonable
thought.5 It is an interesting theory and possibly the genesis of social interaction
between tribes.
Harold Nicholson observes, “Their came a stage when the anthropoid apes
inhabiting one group of caves realized that it might be profitable to reach some
understanding with the neighboring groups regarding the limits of their respective
hunting territories. It must been that no negotiation could be reached a satisfactory
conclusion if the emissaries of either party were murdered on arrival. Thus the first
principle to become firmly established was that of diplomatic immunity. It is found
among the Australian aborigines, in the institutes of Manu and as an accepted
principle in the Homeric poems”.6
“Let the king appoint an ambassador; the army depends on its commander,
control of the subject depends on the army; the Government of kingdom on the king;
peace and war on the Ambassador.”7 Kutilya, the father of Indian polity, while
analyzing the elements of foreign policy, wrote in his Arthashastra: “The affairs of the
world are governed by human well as providential causes. The human causes are
4 Elgavish, ‘Did Diplomatic Immunity Exist in the Ancient Near East?‘,Journal of the History of
International Law, 2000, p.73. 5 Barker J C Barker, The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil?,
Dartmouth: Aldershot, (1996), p. 14. 6 Myneni.S.R, International Relations and Organizations, (Reprint, New Era Law Publications, New
Delhi), 2006, p.65 7 Krishnamurthy GVG, Dynamics of Diplomacy (1
st (Ed), Nation Publishing House New Delhi), 1968
p.72
Evolution of Diplomatic Immunity
31
policy and impolicy. The providential causes are fortune and misfortune. What is
providential is unforeseen: the attainment of desired ends being called fortune and the
attainment of desired ends being called fortune and attainment of undesired ends,
misfortune. That which is human can be foreseen: what brings about and sustains
well-being is policy what produces unfavorable results in impolicy. These human
factors are calculable, unlike the providential causes which are not calculable.” 8
Man is a social being, led from the very beginning by his community instincts.
It is true that the attitude of savages towards strangers and foreign tribes is
characterized by suspicion, but even among the most punitive peoples there appear
certain complexes of mutual interests which are condition of contract. Our ancient
tinkers always devoted their time and attention to the development and growth of
these relations and tried to put these on sound footing. In the ancient past Kutilaya,
plato as well as Aristotle discussed about diplomacy in considerable details. They
have not only discussed the objective of diplomacy but also duties and responsibilities
of diplomats.
2.2 Origin of Diplomatic Iron Curtain
The earliest record of organised diplomatic immunity lies in Ancient Greece.
Diplomatic missions, until the 15th century, were established strictly on an ad hoc
basis and a diplomatic appointment and immunity ended once the diplomat had
fulfilled his duties in the foreign State and returned home. The Greek city-states and
eventually all societies recognised that the practice of protecting foreign diplomatic
personnel benefited all concerned. Envoys were accorded absolute immunity.
Reciprocity continued throughout the ages and is explained better as “do unto their
representatives as you would have them do unto yours”.9
The international relations between the friendly states have been characterized
from the beginning of the recorded history by a need for special organs of
communication. For millennia, these organs called ambassadors or diplomatic agents,
did not posses the character of permanent representatives, but instead were made use
of only on occasion for the purpose of achieving the task. These ambassadors would
8 Singh.I.P, Diplommetry, (2
nd Somaiya Publication Pvt Ltd., Bombay),1970 ,p. 56
9 L S Frey and M L Frey, The History of Diplomatic Immunity, (Ohio State University Press:
Columbus), 1999, p. 4.
Evolution of Diplomatic Immunity
32
be sent to a certain country to conclude an alliance, to make trade agreements, to seek
the hand of a princess for his king, to arrange for a marriage dowry, or to carry out
what where special purpose was at hand. Once he succeeded or failed in his mission,
he retuned home.
The profession from past has not made the same progress as, for example the
scientists who, started with the lever, have already reached the Nuclear weapon and
have overtaken the moon. In fact, diplomacy in many respects has not yet emerged
from its stone age, as is occasionally demonstrated by the rocks hurdles by mobs of
one government through the embassy windows of another. This lack of progress is
not entirely due to backwardness of under privileged diplomats, as it often suggested.
The communities of people with which diplomacy deals are visible but less
predictable than communities of electrons.10
Ogdon indicates that there are three distinct periods of development, namely
(a) in antiquity; (b) in the philosophy of the law-of-nature school in the 12th to 17th
centuries and (c) views of positivist writers after the 17th century. In ancient times
messengers were able to depend on immunity for fear of the sending States’ strength
or even their God. If anyone broke the law in the receiving State they were expelled
and punished in their own land. This was an immunity based on reciprocal custom.
Eventually these customs became rights and were later codified as such in
international treaties, like the Vienna Convention diplomatic relation 1961where in
Immunity was respected.11
The emissary that we now recognize as a diplomat, however, does not appear
very far back in history. The European nations have been using gunpowder a litter
longer than they have been exchanging diplomatic representative as we know them
today. Perhaps there is logic in the sequence, for it is the task of diplomats to replace
the use of force with the art of negotiation. Before the appearance of permanent
diplomatic representative stationed in foreign capital so-called ambassadors were
almost exclusively negotiators, sent out from time to time by one ruler to deal with
another ruler on a particular matter.
10
Charles .W. Thayer, Diplomat, (3rd
(Ed), Michael Joseph, London), 1960, p.326 11
M Ogdon, ‘The Growth and Purpose in the Law of Diplomatic Immunity’, American Journal of
International Law, 1937, p. 450.
Evolution of Diplomatic Immunity
33
Harold Nicolson was of the view that, “The persons of such envoys or
messengers, if properly accredited, must from the first have been regarded in some
way, sacrosanct and from the practice derive these special immunities and privileges
enjoyed by them today.”12
Clay tablets dating back to 1350 BC have been found which contain records of
a widowed Egyptian queen who had no children. She sent a letter to the Hittite king
setting out her predicament, and requesting that he would give her a son in marriage
that would become Pharaoh of Egypt, and ensuring their children would too,
ultimately take the throne. The Hittite king was suspicious and sent an envoy to
investigate. The envoy confirmed the genuineness of the offer. A son was duly
dispatched but was murdered when he entered Egypt. The Hittite reacted by marching
into Syria, capturing the murderers, prosecuting them and condemning them,
according to international practice of the time.13
2.3 Art of Diplomacy
The word diplomacy may be new; the thing itself has been in existence since
the beginning of the civilization or even earlier to that of civilization. The art of
diplomacy came into picture when one group of men wished to come to some
arrangement with another group so as to avoid the use of force, a negotiation took
place, however crude or inept the manner of it. The Babylon the nationalities and
mixture of languages helped to create a wider outlook on questions connected with
them. It is probably the oldest book of law in world that of king of Hammurabi of
Babylon about 1700 B.C.
The Acadian period which preceded the Babylonian kingdom, we hear about
the treaty with a vassal state drawn up in the Elamite language which Niram-Sin,
grandson to King Sargon, made with princes in Avan about 2500 years B.C. The
earliest historical treaty of which we have any detailed record is one for the settlement
of a boundary disputes between the city states of Lagash and Unna on the one side
and of Sha-el-Hai in Babylon on the other about 2850 B.C. 14
12
Mukhi H.R, Diplomacy Theory and Practice, (2nd
(Ed), SBD Publishers Distributors, Delhi), 2008 p.24 13
G V McClanahan, Diplomatic Immunity: Principles, Practices, Problems, (Hurst: London), 1989,
pp. 19-20. 14
Ragnar Numelin, Beginning of Diplomacy, (1st (Ed), Oxford University Press, London), 1950, p.134
Evolution of Diplomatic Immunity
34
Messengers and envoys were often exposed to harm during their travels. Not
only exposed to temporary detention was possible, but also road blockages or
kidnapping and murder by robbers and sometimes even by rulers of enemy territory
they passed through. Thus, in order to protect them, the sending and receiving States
guarded them and tried to ensure their security. In Ancient Rome, hostage taking was
a common means of ensuring security. The States through which the envoy would
pass would willingly give a hostage to ensure safe passage. The hostage was well
treated and would be released at the border. If the envoy was attacked, the hostage
could be killed.15
Protection of envoys was achieved in several ways. Firstly, a specific appeal
by the dispatcher to the recipient was sent. This was usually attained by sending a
letter to the receiving State requesting that someone watch over the envoy so that no
one would interfere with their mission, and in return the sending State promised
special benefits. Secondly and more menacingly, protection could be achieved by
international agreement in that detention or murder of the envoy would lead to the
cancellation of international agreements and the receiving State would suffer the
consequences. Thirdly, it could be done by providing escorts as a means of defence.
In order to protect the messengers, escorts were provided by the receiving State.16
According to some authors, there was much political and military diplomacy
during Biblical times. Many kings and queens sent messengers to rivals across vast
geographical areas, and immunity was needed if they were relaying unwelcome news.
A perhaps familiar example is the visit of the Queen of Sheba to King Solomon
around 940 BC. Such an important political, cultural and economic occasion would
have required envoys to organise, negotiate and coordinate the visit. It may even be
argued that Moses, Aaron, Jonas, John the Baptist and even Jesus were ambassadors
from God, indicating the stature of ambassadors as sacrosanct.17
It has been debated
whether messengers enjoyed unlimited freedom of movement in the Ancient Near
East. According to Elgavish, messengers were not permitted to return home without
15
J Alan, Hostages and Hostage Takers in the Roman Empire, (Cambridge University Press:
Cambridge), 2006, p.64. 16
Supra Note 4, p.83. 17
Supra Note 9, p.18.
Evolution of Diplomatic Immunity
35
the receiving States’ permission.18 Furthermore, Frey and Frey state that envoys could
be detained for crimes which they were suspected of committing.
The Montesquieu maxim ‘la voix de la nature qui reclame ses droits’ i.e. these
relations are the outcome of spontaneous feeling on the part of groups concerned of
self-insufficient and of a consequent desire to promote intercourse. 19 So the forming
of large groups than single families and which formed as local tribes, clans, hordes or
nations, there ensue, not only exogamous marriages, but also certain more extensive
relations between these groups. The earliest characters of the connection of these
groups were temporary, for a span of time it became more regular and regulated
process. The development of intertribal relations between these groups of people led
to formation of international relations among the states which are indeed regulated by
unwritten laws and customs.
Privileges and immunities accorded to diplomats, counsel and international
civil servants, are different even though they look similar. The ambassadors have
been considered as inviolable ever since man has been recording his association with
groups other than his own. Biblical Israel looked upon ambassadors as inviolable.
The ancient Greeks believed that heralds, ambassadors and their retinues were
sacrosanct in all matters having to do with public office an executive duty. They
could go anywhere by land or sea in all proceedings having to do with peace and
justice.
Thucydides tells of a trace between the Athenians and Lacedaemonians in 423
B.C., which provided in Article V for safe conduct by land and sea for heralds and
envoys and as many attendants as the two parties agreed upon. In the fifth century
B.C., the guarantees of diplomatic immunity were not always respected, but it is
significant that the violation were punished. Herodotus tells of the remorse and
expiation of the Spartans for mistreating envoys of the Persian king, Darius. The
emissaries had been dispatched to Athens and to Sparta to demand for Persia control
over land and sea or, symbolically to demand “earth and water”. The Athenians threw
the emissaries into a pit, and Spartans threw them into well, telling them to carry earth
and water to their king from those two places. Subsequently, Herodotus speculates
18
Supra Note 4, p.75 19
Supra Note 14, P.124
Evolution of Diplomatic Immunity
36
that the Athenians may have suffered for their offense by the destruction of their city.
Spartan nobles offered their lives to Persia to atone for the violence done to the
Persian representatives. Darius’ son, Xerxes, interestingly enough “repealed that he
would not behave like the Spartans, who by murdering the ambassadors of a foreign
power had broken the law which the entire world holds sacred”. He thus refused to
taint Persian diplomatic practice by violating the common laws of mankind. 20
Ancient history records few instances of violence’s offered to the persons of
ambassadors, even in cases where the envoys themselves committed offences in states
to which they were accredited. Violence done to an ambassador was seen as a crime
against a higher law and as a cause of war. The credit of organizing conferences for
settling disputes goes to the Greek. These persons were then called regional councils
or amphictonics. Each council had a permanent secretariat which also used to look
after religious places, their finances and providing facilities to the pilgrims.
According to Nicolson, “They also dealt with the political matters of common
Hellenic interest and as such, had an important diplomatic function and introduced
an important diplomatic innovation”. These councils had special privileges which
today are called diplomatic privileges and immunities.21
2.3.1 Indian Prospective
Indian history as contributed a lot for the development of international law and
especially for better international relationship. The modern principles in practice and
procedure in the field of diplomacy seems to have originated quite earlier according to
the history of ancient India. The Vedas, smritis and sadachars constitute the principal
sources of ancient Hindu law. Four Rishis (ascetics) enjoy authorship of
Dhramashastras like Manu, Yajnavlkya, Narada, Parasara. Manu in his manusmriti
which is one of the oldest books of Dhramashastras writes on diplomatic envoys
states “let the king appoint an ambassador; the army depends on its commander,
control of subjects (depend) on the army; the government of the kingdom on the king;
peace and war on the ambassador.”22
20
Richard .N. Swift, International Law-Current and Classic, (Jhon wiley and sons Inc, New York), 1997, p. 45 21
Lawrence Preuss, ‘Diplomatic Privileges and Immunities of Agents Invested with Functions of an
International Interest’, (The American Journal of International Law, Vol. 25, No. 4), Oct., 1931, p.26 22
Mazumdar R.C., The Vedic Age, (Vol I, 1st (Ed)), 1952, p. 34
Evolution of Diplomatic Immunity
37
In the old Hebrew literature both divine and ‘satanic’ messengers are
mentioned. The Hebraic word for messenger is sometimes translated in the Old
Testament as ‘ambassador’ but appears to indicate a messenger at the court. The
Hebrew messengers were not permanent representatives but were nominated by the
court for special missions; they enjoyed important privileges and to treat such
functionary badly was regarded as a serious insult to the king and nation, for they had
to carry out important business of state to call opposing parties to a meeting, to
convey messages of peace etc.,23
The Brahmanism also supported the treating of strangers as enemies, but both
in the Holy Books of the Vedas and in the Laws of Manu there is an expression of real
humaneness. The Laws of Manu, Manava Dhramasastra, contain a whole code of
diplomatic stipulations. In ancient India envoys were sent to foreign courts for the
purpose of arranging alliances; these were generally with the object of making war
rather than of securing peace. In the Rig Veda, the term ‘Duta’ employed in the sense
of a ‘messenger’ to carry news. Agni is often mentioned in the Vedas as a Duta those
function was to carry the offerings made to the gods by the yajamana.
In Yajur Veda Samhitha there is a mentioning of another word to messenger
i.e., ‘Prahitha’. Sayana is his gloss on the Rudradhyaya distinguishes between the two
terms Duta and Prahita. A Duta was one skilled in obtaining intelligence regarding
the condition of the enemy’s army; and a Prahita is merely explained as ‘one sent by
his master’. The term Duta had acquired a technical sense in the Yajur-Vedic period,
while Prahita denoted an envoy and Chara the secret spy of the present time. The
Epics of ancient India illustrates and elaborate regulations regarding the formation of
embassies, their character, rights and duties and their immunities. Diplomacy appears
as a distinct and indispensable features of international conduct from the historic
period when great importance was attached to the work of ambassadors in foreign
courts. 24
The evidence of employing diplomatic envoys is also available in the
celebrated Hindu Epics like Ramayana and Mahabharata. In Ramayana there are two
instances in which Dutas i.e., (the diplomatic agents) were employed in negotiations
23
Supra Note 14, p. 53 24
Vishvantha S.V, International Law in ancient India, (Longamns Green Co., Bombay), 1925, p.34
Evolution of Diplomatic Immunity
38
between the Rama, the Arya King and Ravana, the Demon King. Hunuman, the
monkey minister who visited the court of Ravana on a specific diplomatic mission
and when Ravana tried sentence Hanuman on changes of destructions public property,
Vibhishana, the brother of the Demon King, advised that an envoy should not be
killed even if he was guilty of an offence. There is another instance in Ramayana
where Angada, another monkey king, was sent to Ravana’s court by Rama entrusted
with a diplomatic mission before making the final declaration of war on Ravana and
his forces.25
Another celebrated epic of Hindus is Mahabharata continues some instances
of diplomacy. The diplomatic mission has undertaken by Krishna in the court of
Duryodhana the Kaurava King on behalf of Pandavas. Here also, Krishna in his
capacity as am envoy of Pandavas undertook the task of settling a dispute that arose
in the division of kingdom between the two princely families i.e., Kaurava and
Pandavas. When an attempt was made in the court of Kuravas to assault Krishna, the
Minister-Adviser of the Court, Vidura, stated that the person of a Duta or diplomatic
messenger is inviolable. This gives a clear indication of existence of ad hoc
diplomatic missioner in those times.26
According to the Greek and Indian historians, Megasthens was accredited as
an ambassador by Selukos Nikatra of Syria to the imperial court of Chandragupta
Maurya in the 3rd century B.C. During the time of Chandragupta Maurya, his
Brahmin ministers, known in different names like Chanakya, Kautilya and
Vishnugupta, brought out his celebrated work on statecraft called Arthashastra.27
Kautilya’s Arthashastra deals with the institution of diplomatic envoys in
Book I Chapter XVI, where in there without considering the fact that a diplomatic
missionary is permanent or ad hoc, and a four-fold classification adopted both at the
Vienna Congress of 1815 and the Vienna Convention on Diplomatic Relations, 1961.
They are (a) Duta (ambassador), (b) Nisrishtarthah (Minister Plenipotentiary), (c)
Parimitarthah (charge d’ Affairs), and (d) Sasanaharah (diplomatic messenger or
25
Valmeke Ramayana, yudhakhanda, part 8, p.1599
26 Mahabharata: Santi: Rajadharma. p. 85.28. 27
Chacko C.J. ‘International Law in Ancient India’, Indian Journal of International Law, (Vol. 1),
1961, pp.30-32.
Evolution of Diplomatic Immunity
39
herald).28 This chapter of his not only contains the classification but also mentions
the functions these envoys and immunities accorded to envoys while carrying the
there functions in other states.
During the period of Indian monarch, Bindusara (298 B.C- 273 B.C),
Deimachos was sent as an Ambassador by King Antiochus by Syria and Dionysius as
Ambassador by King Ptolemy of Egypt, and also during the period of Asoka (273
B.C- 232 B.C), the celebrated Indian Emperor there existed diplomatic relation with
the kings of Ceylon, Syria, Egypt, Macedon, Cyrne and other countries.
The Agnipurana of 4th
century A.D. and Nitivakyamrita of 10th
century A.D.,
have also mentioning about the working of envoys during there respective period.
During the 7th
century A.D., there was diplomatic relations between Pulakesin II, a
Maharashtra King and Khosru Parwiz, the Shah of Persia. The Indian history also
speaks about the existence of diplomatic relationship between King Harshvardhana of
Thaneshwar and imperial court of China. In Mahabharata, a king who dared to kill an
envoy was condemned. “A King should never kill a diplomat under any
circumstances whatsoever. The monarch who kills a diplomat lowers himself into
hell with all his Mantries or Ministers.” 29
Diplomatic agents in the ancient India were granted certain immunities and
privileges in the receiving states and they were considered sacrosanct. Any violation
of these immunities and privileges may lead to serious and hostile consequences. One
of such important immunities is safety of the life of the envoy and inviolability of the
person. According to Kautilya, the life and person of Brahmin Duta is inviolable
whereas this principle seems not to be applicable to envoy of other casts. In
Nitivakymrita and Nitiprakasika, it is stated that an envoy should never be killed even
if he is guilty of serious wrong. These principals seem to be of very ancient origin.
From the above account it becomes quite clear that an ambassador of Hindu
India was a dignified spy. If he was to be a success, for that it was essential that he
should expert in the art of spying and past master in creating frictions. He should
know the art of ‘divide and rule’. He was always to be doubted upon. But this is not
case with ambassador today. He is a dignified person with high character and
28
R. Shamasastry, Kautilya’s Arthashastra, (2nd
Ed.), 1961, p.29 29
ibid, p.35
Evolution of Diplomatic Immunity
40
responsibility. He is expected to develop healthy relations with the ambassadors of
other states and see that the image of his state in eyes of other states increases.
Ambassadors cannot afford to be deceit or cunning, because today it is believed that
cunningness is the long run is likely to do more than harm than good to his country.
The Islamic Concept and Practice of Diplomacy:
According to Khadduri, the concept of diplomacy in Islam “was not
essentially for peaceful purposes as long as the state of war was regarded as the
normal relation between Islam and other nations”.30 But Dr. Nagendra Singh, a well
known Indian authority on international law, says: “whatever may have been the
position in strict theory, there is ample historical evidence to indicate that Islamic
states sent diplomatic mission or envoys for peaceful purposes also. This was
particularly so in the conduct of inter-state relations among Islamic political units and
is borne out by the exchange of envoys among central Asian monarchs such as Babar
and Shah of Persia in early 16th century A.D. Even in regard to medieval India, there
are instances of exchange of envoys between Islamic and non-Islamic states for
peaceful purposes in the sense of seeking friendship or alliance or military assistance
prior to war. For example, Rana Sanga sent emissaries to Barbar to seek the latter are
alliance against Ibrahim Lodi prior to the battle of Sikri in 1527 A.D. It may be true
that the practice of diplomacy in Islam blossomed out with reference to peaceful
purposes about the Abbasid period when the concept of ‘Dar al Islam’ was being at
war with ‘Dar al Harb’ had in the light of practical experience been considerably
modified. The art of negotiating alliances with neighboring powers developed to great
extent in Islamic period in Indian history. There are innumerable instances where
Islamic states sought to aid of Aryan states and vice versa”. 31
In theory, the practice of diplomacy in Islam was perhaps different (as it did
not emphasize the peaceful purposes). According to the Quaranic theory which was
practiced in the early stages of the expansion of Islam, diplomacy was a handmaid for
the spread of the Faith. It was used to deliver the message of Islam generally before
fighting began. Despite this theoretical assertion on the aggressive aspects of
30
Khadduri,‘War And Peace in Law of Islam‘,American Journal of International Law, 1955, p.239 31
Nagandra Singh,‘International law in India‘, Indian Journl of Internatinal Law, New Delhi,(Vol. 2),
1962, p.318
Evolution of Diplomatic Immunity
41
diplomacy, the further development of the concept of diplomacy in Islam rested more
on the growing state practice throughout the medieval period.
2.3.2 Greece Prospective (18th
Century)
Diplomacy can be traced back to period of Greek’s from 700 to 100 B.C. The
political philosophers like Plato and Aristotle have contributed a good deal to the
political conspectus of a city state and its external relations with the neighboring
states. With the growth of Greek civilization, the relations between several city states
in the neighborhood became complex and competitive and as such the art and practice
of negotiations demanded men with shrewdness, wisdom and amiable disposition,
which were in a position to convince the assembly of the neighboring state, as to its
policy of its interest.
The first historic record of diplomacy found among the Greek also demonstrates
that the ills, which it then had, have not all been eliminated. Homer reported an early
diplomatic mission to Troy. Its purpose was to obtain the release of Helen. The
Ancient Greeks found it useful to receive heralds (kerykes) and to grant them
immunity. Only heralds were considered wholly inviolable, which marked the
beginning of today’s concept of International Diplomatic Law. Envoys were not
inviolable to the extent that heralds were; in the event that envoys committed crimes
they were punished but could not be put to death.32
The ancients appreciated the importance of communication between the States
and thus took precautionary measures to protect envoys and heralds.33
Anyone who
injured a herald or intervened in his business met with severe punishment. More
importantly, immunity from judicial tribunals was permitted in order to prevent
disruption in the performance of envoys’ official functions, as is the case today.
The Greek city-states, which were democracies at the time of the classical age
(750-350 BC), were frequently at war. Alliances meant victory over common
enemies, and heralds were sent to the States to promote alliances. The ambassadors
would address the receiving State and be assured of their safety when returning
32
Supra Note 9, p.16. 33
Ogdon, Juridical Basis of Diplomatic Immunity: A Study in the Origin, Growth and Purpose of the
Law, (John Byrne & Co.: Washington D.C), 1936, p.15.
Evolution of Diplomatic Immunity
42
home.34 The rules governing diplomatic immunity did not evolve beyond very
elementary principles. This is the result of an inherent distrust or the distances and
difficult terrain which hampered effective communication.
The relations between the city states of Sparta, Athens and Thebes were
governed mainly by considering of internal policy, expediency and defense strategy.
The idea of modern diplomatic practice can be traced to religious leagues such as the
Delphic Amphictyony and political confederations such as Delian confederacy and
Achaean and Aetolian leagues. 35
The need for the trade between nations led to sending of messengers to other
states for the settlement of foreign policy. The Sparta and Athens being the old states
had the practice of sending there diplomats to each other states for deciding there
foreign policy. The notable development in this time was that the diplomats were
allowed to make speeches in there assembly. The diplomats from Megara and
Corinth were given opportunity to make longest speeches in the assembly of
Lacedaemonia against Athens.
The records of Thucydides enumerates not only about the diplomatic relations
between the city states but also there are mentioning about the immunities and
privileges that were provided to diplomats as a matter of great consideration by the
government of city states. The earliest diplomatic immunities like inviolability of
envoys, the right to asylum, truces for the burial of the dead and suspension of
hostility during great festivals like the Olympic Games and on occasions of religious
importance, were found to have been observed in the Grecian period. Thucydides
was known to have delivered protracted and impressive speeches in city state
assemblies. The recodes indicate that he adopted diplomatic methods by conference
and negotiating in settling disputes peaceably.36
International Law can be found in a microscopic form in the relations between
Greek states which formed into an international circle, separate and distinct from the
world around and were bound together by community interests, common culture,
34 Supra Note 4, p. 86. 35
Supra Note 7, 1968, p.32 36
M S Ross, ‘Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the
Abuses of Diplomatic Privileges and Immunities’, American University Journal of International Law
& Policy, 1989, p.34
Evolution of Diplomatic Immunity
43
religion and race. Right from the beginning the role of diplomats in the maintenance
of external relations of state of Greek has not only significant but also vital. For
centuries, special envoys have represented the interest of their rulers in other regions
of the world. A treatise supposedly written in the third century B.C described Greek
practice around 800 B.C. The earlier Greek diplomats were chosen by the popular
assemblies from the members of the various political parties. Often several parties
insisted on each having represented on a single embassy, so that a state was
occasionally represented by several ambassadors- a practice that has always led to
confusion.
The sovereign states of the Mediterranean area grew in number and
civilization, their contracts multiplied and the necessity for negotiation increased. In
the Greek world the system, through intermittent, attracted to it some of the most
skilful of Greek statesmen, who cultivated the art of persuasion and a set of rules for
diplomacy, began to appear. The Romans took less form the Greek than in some
other arts, though they used diplomacy effectively both in their relations with the
Greek themselves and in obtaining the control of Egypt. But when Roman Empire
was fully established diplomacy was mainly employed to divide and control the
barbarians who surrounded it. When the empire split, the western part became a
Christian commonwealth owing allegiance to an emperor and to a pope, and though
diplomacy was necessary between its warring members and was often conducted by
church dignitaries, not only was it sporadic but also, is a sense, there was an appeal to
a superior over all participants. The power of these superiors was, however, always
very limited, and the papal court itself through the legates contributed a great deal to
the development of the diplomatic systems. 37
The contribution of Romans to the international relations was
comprehensively less in degree than that of Greek. In no treaty did Romans treat
other states on terms of equality, though it was true that foreigners were treated more
liberally in Rome than in any Greek states. Diplomacy and statecraft have played
very important role in the expansion of the Roman state into a gigantic empire which
lasted for more than a thousand years. Force and military might have played dynamic
part in the preservation of empire. Nevertheless, diplomacy of Rome had not suffered
37
Encyclopedia Britannica (volume 7 Encyclopedia Britannica Ltd., London),1768
Evolution of Diplomatic Immunity
44
any defect. Rome which practiced conquest more than diplomacy was important for
the organizational improvement on Greek practice. Ambassadorial appointments,
instructions, and status became more formalized. Diplomatic immunity became more
widely recognized.
A Roman envoy was urinated on, as he was leaving the city of Carthage. The
oath of the envoy: "This stain will be washed away with blood!" was fulfilled by the
Second Punic War. The Byzantine Empire, which flourished after Rome’s collapse,
was noted for the beginnings of “professional” diplomacy. Diplomats specifically
trained as negotiators, and the first department of foreign affairs was established. In
the age of chaos, and surrounded by powerful barbarian foes, the Byzantines also
emphasized the darker sides of diplomacy, such as deceit and spying. 38
Rome’s evolution from a city-state to a universal Empire forced her envoys to
play a more prominent role than those of Ancient Greece. The inviolability of Rome’s
diplomats originated during the time of Romulus and Tatius (around 700 BC). The
survival of Rome depended on creating alliances and exchanging representatives with
neighboring States. Rome sent eminent statesmen with senatorial rank as diplomats,
known as nuntii or oratores. These nuntii were appointed by and received their
credentials from the Senate itself.39
Diplomatic relations were regulated by an
institution known as the College of Fetials, whose practice gave rise to jus fetiale.
Their immunity was regulated by political necessity and religious sanction, echoing
the theories of personal representation and functional necessity. The fetials swore an
oath to Jupiter, who was the guardian of alliances. The College also investigated any
complaint raised against a diplomat involving the violations of diplomatic immunity.
Once the fetials found a man guilty, they would deport or surrender him to the
wronged State. Modern diplomatic practice follows a similar methodology; in that an
offending diplomat can have his immunity waived or be declared persona non
grata.40
Ogdon asserts that the Roman theory of immunity can be found in the writings
of classical jurists and commentaries of Code Justinianus. The rights of diplomats
38
John.T. Rourke and Mark, A .Boyer, International Policy on the world stage, (Griford Connecticut),
2001, p 267 39
Supra Note 5, p.16. 40
Refer to Chapter 4.10.1
Evolution of Diplomatic Immunity
45
were sacred and of universal application. These rights are derived from the jus
naturale (natural law) and jus civilis (civil law). Interestingly, these philosophies
were later incorporated during 529 to 534 into codified civil law, the Corpus Juris
Civilis.41
For instance the Lex Julia de Vi made it an offence to infringe on an
ambassador’s inviolability and any such infringement was considered a legitimate
cause of war.
According to the Digest, any assault on a diplomat of the enemy was deemed
an offence against jus gentium (law of the nations). Thomas Hobbes in the 17th
century clarified the jus gentium by confining its application to international relations
and equating the law of nations to the law of nature. Diplomats performed a variety
of tasks in the Roman Empire, which included negotiating treaties of trade, alliance
and demanding restitution for any failure to comply with treaties. These are the
primary functions of diplomats’ today. However, before the envoys were granted an
audience before the Senate, they had to pass a “suspicious scrutiny” test. This
required them to wait patiently before addressing the Senate and thereafter to wait
long periods before they received an answer, after which they were quickly removed
from the city. However, at the same time, the ambassador personified the sovereignty
of the State and accordingly was treated as a guest of the Senate. Harming the envoy
was not only seen as a contravention against the law of the Gods, but also of the law
of the nations.42
Rome’s relationship with its Empire was that of hegemony and not equality,
and this is why Rome did not develop these rudimentary principles further. Romans
frequently violated immunity vis-à-vis the barbarian lands by being brutal and
aggressive. International law does not flourish in circumstances where all States are
not given equal stature.43 It has been stated that the first example of professional
diplomacy can be accredited to the Byzantine Empire. Even though there was a threat
of the growing strength of Persia and the emerging Islamic Empire in the East, the
Byzantines used diplomacy rather than war to expand their influence. Thus they
introduced the first department of government dealing not only with external affairs,
41
Supra Note 11, p.21 42
Supra Note 9, p.57. 43
E Young, ‘The Development of the Law of Diplomatic Relations’, British University of International
Law, 1964, p.143
Evolution of Diplomatic Immunity
46
but also with the organisation and distribution of embassies abroad. During the
middle Ages, Roman law, barbarian codes and canons of the church recognised the
importance of diplomatic immunity. Ambassadors were treated courteously and were
given hospitality, and honorary receptions and gifts were bestowed upon even those
who brought declarations of war. Not only envoys were inviolable, but also their
goods and entourages.
During this time, there was an increase in papal legates. This was due to the
notion that Christendom rested in the hands of the Pope, therefore he should govern
all of Christendom. The establishment of those diplomatic networks influenced the
organisation and the structure of the diplomatic corps. Interestingly, envoys were not
answerable for any crimes committed before their mission but were answerable for
any crimes committed during the embassy. When a crime was committed, they broke
the laws of God and man. The laws of God were of primary importance. China too
considered as civilized nation but did not recognise the existence of other civilised
nations. Owing to the fact that the Chinese believed that their own culture was
dominant above others it saw no-need to embark on diplomatic relations.
Frey and Frey observe that it was not only the Chinese who felt they were a
dominant culture; the same could be said about the Christians and Muslims, during
the Middle Ages, with regard to each other. In each of these situations the
“barbarians” were treated with disdain because each system developed exclusively
according to their specific principles. The common bonds between the Greeks were
language and religion; in Christianity was religion, as was the case with the Muslim
countries. Japan and China had a common bond of culture.44
Things began to change
when trade by sea between the East and Europe became prominent.
The diplomacy of Italian city-states beginning in the fifteenth century is
known for its improvement on the Byzantine practice of cunning and artifice. The
Italian city- states also made positive contribution to the evolution of diplomacy.
These states established the first permanent embassies in London, Paris and at the
court of Holy Roman Empire. Treaty making and protocol were improved. The
Italians also introduced summit meetings as a diplomatic practice.
44
Supra Note 9, p.5.
Evolution of Diplomatic Immunity
47
During the 13th and 14th centuries the growth of sovereign States challenged
the medieval concept of universality and stimulated diplomatic activity. Laws were no
longer based solely on Christianity, but were now in the hands of political powers.
After the decrease of religious tensions around the 15th century, the diplomat’s role
was enhanced by the growth of State power. The increased role of diplomats made it
imperative that their immunity and privileges be defined. During the Renaissance,
scholars and others pointed out that the natural law offered a sound argument for
diplomatic immunity for the protection of envoys when performing their official
functions. One of the best statements of a natural law basis for diplomatic immunity
was formulated by Franciscus de Victoria in 1532. The question asked was how
would the Spanish know whether they had consented to and later violated the law of
the nations, if they killed an ambassador sent by the French for the purpose of putting
an end to an existing war between them? The purpose of this question was designed to
settle the point whether the law of nations falls under natural or positivist law. De
Victoria’s answer states the position of the ambassador with respect to his
inviolability. He explained that there were two types of international law, one being a
common consensus between all peoples and nations and the other being positive
consent. The ambassador fell under the type of law which was from common
consensus and he was considered to be inviolable among all nations.45
The basic principle of the naturalist doctrine was that of necessity; to protect
ambassadors because of the importance of their functions. An early application of
necessity was made by Ayrault (a judge of the criminal court in Angers) when he
explained that there was a more important basis of diplomatic immunity than
exterritoriality and that was necessity of insuring inviolability to an agent. Further, it
was stated that the ambassador derives his protection from three sources, namely from
the one sending him, from those to whom he is accredited, and from the important
nature of negotiation which is his function to carry on. Grotius even conceived in De
Jure Belli ac Pacis that wars would begin out of the maltreatment of envoys. He
wrote that there were two inherent rights of ambassadors abroad, namely the right of
admission into the receiving State and the right to freedom from violence.46
Grotius
disagreed with other scholastic reasoning that immunity was based on natural law
45
Supra Note 11, p. 449. 46
Supra Note 36, p. 173.
Evolution of Diplomatic Immunity
48
through necessity. However, he ultimately concluded that immunity was based on
natural law. Grotius stated that the security of ambassadors outweighed any
advantage which may have been derived from the punishment of his crimes. His
safety would be compromised if he could be prosecuted by any other than the State
who sent him. The sending State’s views may be different from those of the receiving
State and it is possible that the ambassador may encounter some form of prejudice for
the crime for which he has been accused. Both the natural law and positivist thoughts
have their weaknesses. The natural law school confused international law with
theology or moral philosophy, while the positivists refused to look deeper into the
political and juridical reasons that the practice was based upon. In other words, the
naturalists defined immunity from the law of nature or God and the positivists from
practice among States.
One main rationale of necessity is securing the ambassador’s position. Samuel
Pufendorf states that ambassadors are necessary in order to preserve peace or win the
battle. This is embraced respectably by natural law. In other words, ambassadors are
necessary to convey messages of truce or surrender or even to declare war with a
foreign State. Pufendorf further states that those who are sent as spies to another
nation are not protected by natural law, but depended on the “mere grace and
indulgence” of those who sent them. Despite these statements it must be made clear
that immunity did not give the ambassador a licence to commit crimes against the
State without being punished.
Sir Edward Coke declared this in his Fourth Institute that:
“if a foreign Ambassador…committeth here any crime, which is contra jus gentium,
as Treason, Felony, Adultery, or any other crime against the law of Nations, he loseth
the privileges and dignity of an Ambassador as unworthy of so high a place, and may
be punished here as any other private Alien”47
The most significant of all applications of the Roman doctrine was in the
Spanish code system, which stated that any envoys that entered Spain
(notwithstanding their religious standing) would be allowed to come and go in safety
and security to their persons or property throughout their stay. Even though an envoy
47
Supra Note 11, p.460
Evolution of Diplomatic Immunity
49
who visited the country may have owed money to a Spanish individual, he would not
be arrested or brought to court. A fine example of diplomatic immunity was when the
Bishop of Ross was found to have participated in a plot against the Crown of England
in 1571. At that time there had already been two prior incidents where ambassadors
were not punished for their crimes, but were requested to leave the country. The
Bishop was detained for a short period before being banished from the kingdom.
Thus a strong precedent had already been set when Gentili and Hotman were called
upon by Queen Elizabeth I’s Council to advise her on the bringing to justice of a
Spanish ambassador, Mendoza, who had conspired against the Queen. Both
gentlemen advised the Council that he should not be punished, but rather be sent back
to Spain. Gentili stated that the natural law governing ambassadors was not found in
theology or philosophy, but in the practice of nations.48
Although both these theorists
did not approve of sending Mendoza back, they had to adhere to the practice of
nations. This can still be applied today: an ambassador or diplomat will not be
detained for espionage activities against the receiving State.
The period from 1648 to the French Revolution of 1789 witnessed the greatest
expansion of diplomatic privilege, but later the most obvious malpractices were
restricted. The practice tended to reinforce the idea of privileges as being personal, for
example having immunity against criminal jurisdiction. By the 19th century natural
law had declined, but it was reintroduced in the 20th century. There was a shift to
positive law. The leading positivist theorist was Van Bynkershoek, who argued that
the law of nations was based on the common consent between nations through
international customs or through treaties. He expanded the concept and justified
immunity, whether it is from questionable acts or not, in saying that an ambassador
acted “through wine and women, through favors and foul devices.”49
While many
would agree with this statement, it oversimplifies the position. The importance of an
ambassador must ensure international stability.
This “modern” form of diplomatic immunity only took shape with the
establishment of resident ambassadors. This concept is defined as “a regularly
accredited envoy with full diplomatic status sent…to remain at his post until recalled,
48
Supra Note 43, p.141 49
Supra Note 9, p.5.
Evolution of Diplomatic Immunity
50
in general charge of the interests of his principal.”50 The first record of a resident
ambassador arose in Italy around the mid-15th century. By the 1500s the major
powers were already exchanging resident ambassadors between their courts. It seems
that the fear of war stimulated diplomatic activity, which further encouraged the
establishment of resident embassies. The establishment of resident embassies made
ambassadors a symbol of goodwill and a source of gathering and relaying information
in the foreign State. Immunities and privileges of resident ambassadors were an
innovation of the 16th and 17th centuries. During this era, the potential limitation of
diplomatic immunity was a heated issue and there were several debates, especially
with regard to which of the three theories dominated in the international sphere.
Throughout the 19th and early 20th century the “European” law of nations
collided with other mutually exclusive, imperial and geopolitical systems. Most of
the change was based on Western thought and developing countries had contempt for
international law and diplomatic practice and immunity as a Western construct. This
meant that by accepting “European law” States were allowing the Western powers to
exercise dominance over them. The system of diplomatic privileges survived in spite
of strong attacks against it, because of its necessity.
Further, the increase of the scope of diplomatic functions led to the increase of
the size and importance of diplomatic corps. Many saw this as an “outmoded and
overly privileged elite” and even today most laymen believe this. Many jurists
believed that immunity was a denial of justice. For instance, what sense of justice
does a victim have if the offending diplomat cannot be prosecuted; this was further
reiterated when there was a growing acceptance of equality and democracy. Making
matters worse for the diplomatic institution were terrorists masquerading as diplomats
or even diplomats abusing their power. In the 20th century there were two World
Wars and several revolutions that undermined the traditional international society.
The breakdown of internal homogeneity and the expansion of the international
community, together with socioeconomic changes and growth in military technology,
triggered a “diplomatic revolution”. This means that there was a need to limit and
restrict diplomatic immunity. Despite all these negative developments, governments
have generally respected diplomatic immunity even through the two World Wars. The
50
Supra Note 13, p. 25.
Evolution of Diplomatic Immunity
51
Allied forces honoured the rights of the representatives from Nazi Germany and
Japan. Similarly, the United States representatives abroad were also immune.51
2.3.3 European Prospective (19th
Century)
The origin and development of diplomacy may be traced in the Greek and
Indian civilization but the diplomacy as it is practiced today is the contribution of the
Europe. Italy is believed to be the originator of modern organized diplomacy when in
1496 A.D. Italy sent a representative to London and thereafter began to establish
diplomatic relations with other European nations. It was because of these initiatives
taken by the close of the 16th
century several European countries established
permanent diplomatic relation with each other.
Machiavelli was personality of this time. It his work ‘The Prince’ he has at
length discussed about diplomacy. He did not believe that a diplomat should be an
honest broker of ideas. He placed the safety of the state on everthing else. He in his
book has advised the ambassador that “you must know that there two method of
fighting, one by law, the other by force, the first methods is of men, the other is of
beasts, but as the first method is often insufficient, one must have recourse to the
second.”52
The technological advancement has so much generalized the interest of
nations that bilateral diplomacy is quite inadequate. Instead multilateral diplomacy is
conducted in international conference where interested governments are invited to
send delegates. The diplomacy by conference is becoming more popular in Europe
and throughout the world. Diplomacy as we know it came into being only in the early
modern era, when Venice sent permanent ambassadors the word is Italian origin- to
the court of other principalities, and from Venice the custom of permanent envoys
spread to the new nation-states of Western Europe, these envoys taking the name of
“diplomats” for the fact that the documents they carried were called diplomas,
literally letters folded double.
By the end of the wars of Napoleon, diplomacy had become so important, its
ordering so essential, that a rule of great Congress of Vienna set out a listing of titles
51
Supra Note 34, p. 177. 52
V L Maginnis, ‘Limiting Diplomatic Immunity: Lessons Learned from the 1946 Convention on the
Privileges and Immunities of the United Nations’, Brooklyn Journal of International Law, (2002-2003),
p.989
Evolution of Diplomatic Immunity
52
for diplomats: according to this rule the first in importance should be ambassadors,
papal legates, and papal nuncios; second on envoys extraordinary and ministers
plenipotentiary; third, minister resident; fourth, charges d’affaires. The congress of
Vienna also put a stop to the unseemly pushing and shoving which had gone on in
royal anterooms as diplomats formed themselves into line for receptions and other
occasions; before the time of the ambassadors representing the most illustrious nation
of the continent had gone first in line, and the other envoys had scrabbled for position;
after the congress the doyen or dean of the corps diplomatique- French was the
traditional language of diplomacy until well into the nineteenth century-became in
most countries the envoy with longest services in a given capital, and the other
diplomats followed according to terms of services.
The post-Napoleonic international conferences at Vienna (1815) and Aix-la-
Chapelle (1818) were important is codifying the status and functions of diplomats.
The nineteenth century was also both the height and the beginning of the end of the
“old” style of diplomacy. Kings and emperors still held sway, for example, but the
American and French Revolutions signaled the onset of the decline of that system of
diplomacy characterized by Eurocentism, great-power status, executive control, elite
conduct, secrecy, and bilateral negotiations.53
The princes of each state became vitally interested in constantly watching the
developments in the capital of other states. It was in this environment permanent
diplomatic missions and secret diplomacy became common feature. During the 19th
century as a result of the part played by France and other European states these
feature became universal in Europe and in other parts of world. When a number of
government’s found that they had some issues affecting all of them to discuss, they
met at what they called a congress or conference. The most notable of the conferences
of the nineteenth century were the congress of Vienna, 1815, the Congress of Paris,
1857, and the Congress of Berlin, 1878. From and after World War I, in the present
century, diplomatic conferences became more frequent. Diplomatic by conference
emerged as a new pattern.54
53
Supra Note 4, p. 73. 54
Murthy B.S, International Relations and Organization, (reprint, Eastern Book Company, Delhi),
1993, pp.71-74
Evolution of Diplomatic Immunity
53
The rights, duties, and privileges of diplomatic envoys continued to develop
according to customs in the eighteenth century, and by the early nineteenth century
the time was ripe for some common understanding on the subject, which took place at
Congress Vienna in 1815. The developments in diplomatic practices since 1815
rendered necessary a new and more extensive codification and formulation of the laws
and usages as to diplomatic envoys, which was achieved in the Vienna Convention on
Diplomatic Relations conclude on 18 April 1961.55 The other Conventions which
were adopted after 1961 like Convention on Protection of Diplomats 1973
Convention against the Taking Hostages 1979 which codified law relating to
diplomacy.
The 1815 Vienna Congress focused on the norms for engaging in international
diplomacy. Most European States thereby established the mutually acceptable
institutions that governed their international relations. Previously considered a
somewhat discredited activity, diplomacy was finally perceived as a highly positive
institution. Preventive diplomacy was viewed as a vehicle that would not necessarily
prevent war but would serve the long-term interests of the international community.
By the early twentieth century the term “democratic diplomacy” had come
into common use. It seems to symbolized a new order in world affairs- one in which
government were fast losing their aristocratic leanings and their aloofness and peoples
were speaking of peoples through democratic representative and informal channels.
Actually, the new order was not as different from the old as it seemed in the
atmosphere of hoe that ushered in the present century. While diplomacy remained a
rather esoteric profession, carried on by men of wealth and influence and power, it
was conducted with the assistance of growing number of career officers, the elite
guard of diplomacy, whose standards of competence and training were being steadily
raised. Diplomacy was thus being put more generally on a professional and
nonpolitical basis. The drafters of the Vienna Conventions had the extremely
burdensome task of incorporating the concerns and suggestions of all the countries
involved in the early 1960’s, especially with a history dating as far as the first
55
Starke J.G, Introduction to International Law, (10th
(Ed), Aditya Book Butterworth’s Publication,
New Delhi), 1994, p. 421
Evolution of Diplomatic Immunity
54
civilised settlements. Despite this difficult task ahead of them it was needed in order
to put an end to the diverse opinions and customs.
2.4 Modern Development
It has been generally accepted that some common understanding of
rudimentary diplomatic privileges and immunities existed from the earliest times.
There is evidence to suggest that the obvious impossibility of holding useful
exchanges where the essential messengers might expect to be killed or imprisoned
gave rise to some basic Conventions which carried penalties or yielded ostracism if
flouted. So important was the function of a representative felt to be that until Roman
times, and to some extent even then, the necessary immunities were protected on
religious rather than legal grounds. The balance had undoubtedly shifted by the later
Roman Empire, and the Code of Justinian, together with the Corpus Juris Civilis,
subsequently provided basic material for the development of the modern law of
diplomatic immunity.
The immunities and privileges which must be granted to diplomatic agents are
not, as in the case of sovereign Heads of the State, based primarily on the principle
par in parem non habet imperium, but on such agents need for them for the purpose of
fulfilling their duties to be independent of the jurisdiction, control and the like of the
receiving state.56
Modern diplomatic immunity evolved parallel to the development of modern
diplomacy. In the seventeenth century European diplomats realized that protection
from prosecution was essential to doing their jobs and a set of rules evolved
guaranteeing the rights of diplomats. These were still confined to Western Europe,
and were closely tied to the prerogatives of nobility. Thus an emissary to the Ottoman
Empire could expect to be arrested and imprisoned upon the outbreak of hostilities
between their state and the empire. The international justice applied only between
civilized peoples. The French Revolution also disrupted this system as the
revolutionary state and Napoleon imprisoned a number of diplomats accused of
working against France. More recently, the Iran hostage crisis was a violation of
56
Robert Jennings, Oppenheim’s International Law, (5th
(Ed), Universal Law Publishing Co., Delhi),
1986, pp.1090-91
Evolution of Diplomatic Immunity
55
diplomatic immunity. On the other hand, in the Second World War, diplomatic
immunity was upheld and the embassies evacuated through neutral countries.
2.4.1 Vienna Convention on Diplomatic Relation 1961
The development of diplomatic immunity over the years let to the Vienna
Convention which became a universal Convention and its provisions clearly marked
progression of custom into settled law and resolved areas of contention where
practices conflicted. The Vienna in 1815 was the first site of a meeting for diplomatic
agents. The first international attempt to codify the rules of diplomatic immunity was
in 1895 with the Draft Convention of the Institute of International Law. This
resolution stipulated that diplomats enjoyed extraterritoriality. This extraterritoriality
was curtailed in 1929. This is the genesis of the Vienna Convention.
In 1927, the League of Nations Committee of Experts for the Progressive
Codification of International Law drew up a report that analysed the existing
customary law of diplomatic privileges and immunities. The Havana Convention on
Diplomatic Officers in 1928 brought the Latin American States together. The report
was intended as a provisional instrument until a more comprehensive codification
could be achieved. The preamble of the Havana Convention states that diplomats
should not claim immunities which are not essential in performing official functions.
This led to the growing popularity of the functionalist approach. Another important
document was the Harvard Research Draft Convention on Diplomatic Privileges and
Immunities in 1932 (“the Harvard Convention”).57
McClanahan states that had Harvard been an international organisation instead
of a prestigious university, it would have heavily impacted on thoughts of diplomatic
immunity. However, owing to its academic nature, this document has persuasive
value only and not many States implemented the provisions in national law.58 The
Harvard Convention was one of the first documents that attempted to make a clear
distinction between official and non-official acts. Creating this distinction aided in
identifying when immunity could be relied upon. However, this only applies to lower
57
The Harvard Draft “the theory of extraterritoriality has not been used in formulating this present
draft Convention” 58
Supra Note 5, pp. 29-30.
Evolution of Diplomatic Immunity
56
staff, since diplomats have absolute immunity against criminal prosecution.59 None
of the earlier attempts managed to address the field in sufficient detail. In 1957,
following the General Assembly Resolution 685, the ILC accepted the task of
preparing a draft Convention on Diplomatic Relations. A E F Sandstrom was
appointed Special Rapporteur and was responsible for drafting the report which would
be later reviewed by the ILC. The ILC later requested information and comments
from all governments in order to receive input and draft an efficient document. In
1961 the Vienna Convention, attended by 81 States and several international
organizations making use of the envoy structure, was held to discuss this draft
document. These States were able to reach consensus on many issues.
The Vienna Convention was considered to be a success in that by 1985, 145
member States had acceded to it; ten years thereafter this number had increased to 174
members States. The formulation of the Vienna Convention was a reaction to the
absolute immunity granted to diplomats throughout the ages. Further, it sought to
standardize the practice of diplomatic officers and missions in the receiving State. In
addition, the preamble of the Vienna Convention states that one of the purposes of
immunities and privileges is “not to benefit the individuals but to ensure the efficient
performance of the functions of diplomatic missions as representing States”.60
Furthermore, the preamble recognizes the theory of functional necessity as the
dominant theory. Thus, the focus shifts from the person of the diplomat to his
function in the mission. A question that can be raised is whether diplomatic
representatives adhere to this concept, especially when there are other Articles in the
Vienna Convention that counter this. Although the Vienna Convention reflects a shift
from the theory of personal representation to functional necessity, the latter cannot
exist in isolation.
The preamble complements both these theories. Similarly, the Vienna
Convention signifies the rejection of the extraterritoriality theory and states that this
theory was an “unfortunate expression” that would have led to many errors and to
legal consequences that would be “absolutely inadmissible”.61
The Vienna
Convention clarifies that diplomats are exempt from jurisdiction of the local courts
59
Article 31 of the Vienna Convention diplomatic relations 1961 60
Supra Note 34, p. 181. 61
Supra Note 5, p. 57.
Evolution of Diplomatic Immunity
57
only during their mission, but are not exempt from the law of the State. It further
grants many fiscal privileges, but also limited customs exemptions which many
envoys abuse and use as a way to increase their salaries. Other countries at the same
time denoted that custom exemption is based on international comity rather than law.
The Vienna Convention is plainly declaratory of existing rules and practices
with respect to diplomatic immunities and privileges, which are reciprocally accorded
by the States without discrimination. Special privileges for diplomatic personnel grew
up partly as a consequence of sovereign immunity, independence and equality of
states and partly as an essential requirement of the international system. The prime
motive behind extending immunities and privileges by States to their diplomatic
representatives is to ensure independence in the performance of their official
functions. Thus, the adoption of The Vienna Convention on Diplomatic Relations in
1961 marked the codification and progressive development from ancient practices,
customs and treaties governing diplomatic law.
The Convention defines for the purpose of implementation diplomats as a
"diplomatic agent" is the head of the mission or a member of the diplomatic staff of
the mission.62
The Convention has also dealt with the establishment of diplomatic
relations between States, and of permanent diplomatic missions, takes place by
mutual consent.63 The Convention also creates obligation on the that sending State
that it must make certain that the agreement of the receiving State has been given for
the person it proposes to accredit as head of the mission to that State, and also
“receiving State is not obliged to give reasons to the sending State for a refusal of
agreement”.64
Once the receiving state accepts the person as diplomatic agent of the
sending state the receiving state is obligated to grant all such immunities and
privileges to the person son received.
Article 6 states that “Two or more States may accredit the same person as head
of mission to another State, unless objection is offered by the receiving State”. The
receiving state has every right to reject accredit granted by the two sending states to
one individual on any grounds which it thinks is going to affect the political relations
between the other states in international community. Article 8 of the Convention
62
Article 1 Vienna Convention on Diplomatic Relations, 1961. 63
Article 2 64
Article 4
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further does not allow the sending states to appoint statesmen of the receiving state in
diplomatic missionary of the sending state, the sending can do so only when with the
prior permission of the receiving state, which the receiving state may wave at any
point of time without assigning any reasons.
The sending state subject to the provisions of Articles 5, 8, 9 and 11, of the
Convention 1961 on diplomatic relation; “the sending State may freely appoint the
members of the staff of the mission. In the case of military, naval or air attaches, the
receiving State may require their names to be submitted beforehand, for its approval.”
The Convention puts restriction on the sending state not to appoint those persons who
have dual nationality or the person having different nationality than that of the
sending state. The receiving state ‘may at any time and without having to explain its
decision” notify the sending State that any diplomatic agent of the permanent mission
is persona non grata and has to leave the country. The Convention not only obligates
the receiving state to protect the rights of the sending states interest in diplomatic
relations, but also gives rights to the sending states to reject or send back the
diplomat.
The diplomatic Immunities and privileges that very much accorded to the
diplomats from centaury have been very much protected under the Convention 1961.
The missionary has protected “right to use the flag and emblem of the sending State
on the premises of the mission, including the residence of the head of the mission, and
on his means of transport”.65
The receiving state shall not make any laws or use force
in such a manner that the right to sending state is affected. The premises of the
missionary are seen as the premises of the sending state even though it physically
exists in the receiving state.
Article 14 was formulated to help classify envoys and personnel. The motive
of this Article was that before the First World War only powerful States sent and
received ambassadors who enjoyed greater status than other envoys. By the time of
the Second World War the number of ambassadors rose, while the number of envoys
declined. The Vienna Convention confirmed that heads of missions would take
precedence.
65
Article 20
Evolution of Diplomatic Immunity
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The Convention obligates the receiving state to facilitate the acquisition on its
territory, in accordance with its laws to the sending state missionary.66 The
Convention in large puts obligation upon the receiving state to protect the right of the
missionary of the sending state, as much status accorded to the head of the state. The
premises of the mission shall be inviolable, to all activities which may have been
carried inside the premises of missionary against the law of the receiving state.
Missionary are exemption from all kind of taxes imposed in the receiving state. All
the “archives and documents of the mission shall be inviolable”.67 Missionary cannot
be forced to produce any documents or any archives which are in there posses to
produced before the receiving country court as evidence against them or others.
Article 22 deals with the inviolability of mission premises. The Convention
does not clearly state the ambit of inviolability of missions, but the implications of
inviolability and provision of emergency or abuse may justify the receiving State’s
entry onto the premises. Article 27 deals with the protection of all forms of diplomatic
communication. Examples are the use of wireless transmissions and the fact that
diplomatic bags are not searched by the receiving State. Article 31 looks at settled
exemptions to civil jurisdiction in order to ensure the minimizing of abuse by
diplomats. Article 34 looks into the basic principle of exemption from domestic taxes
in all cases with some exceptions to taxes on private income and property arising in
the receiving State, indirect taxes and charges levied for services rendered. Article 37
proved the most difficult to resolve in view of great diversity of approach by the
parties to the Convention, this Article deals with the treatment of junior staff of
diplomatic missions and families. It limits civil jurisdiction while allowing full
immunity from criminal jurisdiction. Article 38 deals with debarring nationals and
permanent residents of the receiving State from all privileges and immunities.
The Convention has overviewed the aspect which has impacted for the
development of protection of diplomats from time immemorial. The Convention
obligates “the receiving State shall accord full facilities for the performance of the
functions of the mission”. The missionary shall also accord freedom of movement
66
Article 21(Vienna Convention 1961) 67
Article 24
Evolution of Diplomatic Immunity
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throughout the territory of the receiving state, but it can only restrict the missionary in
the interest of national security.68
Further the diplomatic immunity as accorded in the ancient time has been very
well protected under the present Convention which protects the right of the diplomats
to freely communicate with his government and consulates. Further grantees
immunity to diplomatic correspondence immunity from detention of bag of the
diplomats the Convention also guarantee immunity to the persons carrying diplomatic
massages these immunities comes to seize once the sending state mission may
designate diplomatic couriers ad hoc.69
In the course of their official duty the
missionary shall be exempted from all personal or real, national, regional or municipal
dues and taxes. The Convention exempts from leaving of fee as well as charges on
the missionary. The Convention has given total immunity to the missionary in
relation to civil cases that may initiate against them in the receiving states. This helps
the diplomats to make there work without fear in receiving state and also in favaour of
his home state, but the receiving state under certain circumstances can make
diplomats liable for civil cases. This can be done only against the private individual
property owned by the diplomats in the receiving state not for the purpose of his
function towards his state.70
Further the diplomatic missionaries have not only been exempted civil laws of
the state but they are totally exempted from all criminal laws of the receiving state.
The Convention obligates the receiving state not make any arrest or detention in any
matter the diplomatic agents. This has been many times misused by the agents in the
past and present.71
The immunity shall not only be protected at the time of peace but it
should also be protected during the time of armed conflict.
The Convention has established itself as a cornerstone of modern international
relations. Despite the need for implementing national legislation in a number of
States, it came into force. The Convention has proved resilient to attack on its
fundamental principles. This came during the 1980s from those alarmed at the
opportunities it provided for abuse as demonstrated in particular when following the
68
Article 25 and 26 69
Article 27(1) to (6) 70
Article 28, 31and 34 71
London in 1984, policewoman Yvonne Fletcher was killed on the street by a person shooting from
inside the Libyan embassy.
Evolution of Diplomatic Immunity
61
murder of a policewoman by shooting from the premises of the Libyan diplomatic
mission in London the United Kingdom broke diplomatic relations and all those
within the mission left England under the shield of immunity.
Although the Vienna Convention successfully codified several practices, not
everyone got what they wanted. For instance, the US argued unsuccessfully for
retaining many diplomatic privileges while other States like Italy and Argentina
wanted limited immunity. Colombia proposed the prohibiting of diplomatic personnel
from engaging in commercial activity, which was supported by the Latin American
countries and other countries like Egypt, India, Norway, Poland, Switzerland and
South Africa. Despite such support the proposal was not included into the Vienna
Convention. Debates such as these were necessary to limit immunity; otherwise
diplomatic personnel would enjoy absolute immunity in all their actions. A reason for
the Vienna Convention’s success is that it defined and refined the widespread
customary practice. The Vienna Convention appears to guarantee efficiency and
security through which States conduct diplomacy. Importantly, it focuses only on
permanent envoys and did not deal with ad hoc envoys and international
organizations, which are dealt with by other Conventions. It further avoids
controversial issues that would have started never-ending debates.
In addition, its use of the restrictive and functional necessity approach helps
restrict privileges and reduce the number of people who enjoyed them.72 The
Convention contains 53 Articles that govern the behavior of diplomats, 13 of which
address the issue of immunity. Nevertheless, the Vienna Convention as a whole
cannot be ignored, and bears testament to the remarkable efforts of the original 81
States to reach agreement for the common good. A detailed discussion is made in
chapter four of this thesis relating to abuse of immunity and other aspects of immunity
under the chapter heading diplomatic immunity and privileges.
2.4.2 Vienna Convention on Consular Relations of 1963
Although this thesis does not deal with immunity of consuls, it is necessary to
show their distinction from diplomats and their importance in the field of international
law. There is an assumption that diplomats and consuls hold the same office.
72
Supra Note 9, pp.480-487.
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62
Although diplomats and consuls do work hand in hand to create foreign relations
between States, they are different; not only in function, but in the immunities and
privileges. Their primary duty is to protect economic interests and any trade relations
between the sending and receiving State. Other consular duties include issuing of
passports, the registration of birth and the solemnizing of marriages, executing acts
and exercising disciplinary jurisdiction over the crews of vessels belonging to the
sending State.73 The protection of the sending State’s nationals who find themselves
in difficulty in the receiving State is an important function and failure of the receiving
State to allow right of access to and communication with such nationals may result in
action being initiated before the International Court of Justice (ICJ), For example in
the case of Germany and Paraguay against the US.74
McClanahan states three
provisions with reference to communication and contact with nationals of the sending
State. Firstly, that consuls shall be free to communicate and have access to sending
State nationals and vice versa; secondly, that consuls are to be informed swiftly by the
receiving State authorities of any of their nationals that have been arrested and
detained, and the nationals shall be informed of such rights; and thirdly, that consuls
have the right to visit the nationals and arrange for their legal representation.
Consuls are frequently stationed in more than one city or district in the
sending State (unlike diplomatic missions) and thus differ from diplomatic
representatives. In South Africa, foreign embassies are situated in Pretoria and in
Cape Town, while consular offices are found in Johannesburg, Durban, Cape Town
and Port Elizabeth.75
The first attempt to bring about codification of the rights and duties of consuls
was made in Havana at the 1928 Inter-American Conference, where American States
signed a Convention on Consular Agents. By 1932, the Harvard Research in
International Law had completed a comprehensive draft Convention with detailed
notes on the subject, which led to the study of consular relations by the ILC in 1955.
The Special Rapporteur drafted a report on the subject which in turn led to the Vienna
Convention in Consular Relations being adopted and signed in 1963. This provided
73
R M M Wallace, International Law, (4th
(Ed), Sweet & Maxwell: London), 1997, p.132 74
G Von Glahn, Law among Nations: an Introduction to Public International Law, (7th (Ed), The
Macmillan Company: London), 1996, p.448 75
J Dugard, ‘Recent Cases: Consular Immunity’, South African Law Journal, 1966, p.126.
Evolution of Diplomatic Immunity
63
that the Consular Convention would not interfere or affect any other international
agreements between parties.
Consular officers are persons designated and are responsible for the exercise
of the consular functions. The Convention under Article 5 lists an extensive list of
consular functions and further functions, as a result of the Brazilian delegate who had
asked for the broadening of the term from “official functions” to “consular functions”.
In Arcaya v Paeza76
libel action in the US was brought against Paez, a Venezuelan
consul-general. Two important questions arose, namely, what is the scope of consular
immunity under customary international law and what is the effect of the acquisition
of diplomatic status on an action previously brought against a consul? The first issue
is settled in the Consular Convention under Article 5, that consuls are entitled to those
rights, privileges and immunities necessary to ensure proper performance of their
functions. In other words, they have immunity only for official acts. With regard to
the second issue, the court found itself bound by the Department of State’s statement
that Paez was entitled to the privileges and immunities of a diplomat only because he
was later appointed the rank of Envoy Extraordinary and Minister Plenipotentiary;
therefore he was protected from service of process while holding his position.77
Article 9 of the 1963 Convention divides the heads of consular posts into four:
(a) Consuls-general;
(b) Consuls;
(c) Vice-Consuls; and
(d) Consular agents.
Consuls receive fewer immunities and privileges than diplomats. They are not
diplomatic agents and are not immune from local jurisdiction, except where a treaty
between the two States allows for exceptions, or if the consul acts within his official
capacity and within the limits of consular powers under international law. The degree
of immunity accorded to consular offices and employees is quite restricted, in that
they are only exempted in acts of an official consular function. As a result, they are
76
C A Whomersley, ‘Some Reflections on the Immunity of Individuals for Official Acts’, International
& Comparative Law Quarterly, 1992, p. 854. 77
B Lillich, ‘A Case Study in Consular and Diplomatic Immunity’, Syracuse Law Review, (1960-
1961), p. 305.
Evolution of Diplomatic Immunity
64
exempted from jurisdiction of judicial or administrative authorities of the receiving
State.
In the South African case of S v Penros78
the question for decision was
whether an honorary consul from Colombia was immune from prosecution for
negligent driving under the Road Traffic Ordinance No. 26 of 1956. The court held
that in international law it was clear that a consul was not a diplomatic representative.
Thus the Diplomatic Privileges Act cannot confer immunity on any consul other than
those with dual diplomatic-consul status. Similarly, in Parkinson v Potter, 79
Wills J
stated that the immunity of a consul-general does not arise from diplomatic functions
but from his acts performed as a consul-general.
Consuls are divided into two categories: career consular officers who are full-
time servants of their government, and honorary consular officers who are non-career
officials and who usually perform consular functions on a part-time basis. Where a
State has very few interests in another State it may prefer to appoint a local
businessperson, who may or may not be a national of the sending State, to represent
the State as honorary consular officer. No particular mention is made of honorary
consuls and their immunity. Generally, non-career consuls do not enjoy the same
personal privileges and immunity as their career counterparts.
Another important immunity includes the inviolability of consular premises
that may not be entered by authorities of the receiving State without consent. The
premises must be protected against intrusion or impairment of dignity and this
inviolability extends to any archives and documents of the consular mission, even
after consular relations have been broken off. In respect of personal immunity, the
Consular Convention is more restrictive than its counterpart.
Article 40 states with regard to consular officers that they will be treated with
due respect by the receiving State and further shall take all appropriate steps to
prevent any attack on their persons, freedom or dignity. The Convention has a strong
element of development and reconstruction of the existing law and brings the status of
consuls nearer to that of diplomatic agents.
78
Supra Note 75, p.126 79
Parkinson v Potter (1885) 16 Q.B.D. 152
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2.4.3 Convention on Special Missions 1969
The Convention was drafted and presented before General Assembly of the
United Nations with an intention to maintain of international peace and security and
the development of friendly relations and cooperation among States. The Convention
was made part of the international law so that the Convention on special missions
would complement existing Conventions on diplomatic immunities 1961 and
counselor’s immunities 1963, and also contribute to the development of friendly
relations among nations, whatever their constitutional and social systems.80
The Convention 1969 has made clear cut areas, so far as it relates to the
functional approach of the diplomats in the receiving sates. The Convention not only
guarantees the immunities and privileges to diplomats, but stretches its hands towards
the other persons who form integral part of diplomatic work. The Convention for the
purpose of its application defines representative of the sending State in the special
mission, members of a special mission, and members of the staff of the special
mission, members of the diplomatic staff, members of the administrative and
technical staff, members of the service staff, private staff.81
Further the Convention
stretches its hands to provide protection to the person whoever may be appointed as
special missionary on behalf of the sending state who may include diplomatic staff,
administrative and technical staff and service staff. The Convention retains all
immunities to those appointed out of permanent diplomatic missionary in the
receiving state.82
The Convention has fulfilled the area of applicability of the immunity and
privileges accorded under Vienna Convention on Diplomatic Relations 1961, which
needed a pre-existence of diplomatic relation between the states for the purpose of
granting immunities to these persons. The Convention 1969 has touch gray area
where the 1961 Convention failed to touched, i.e., the status of special missionary
sent as a representative of the state, who doesn’t have any diplomatic relations in the
past. The Convention has removed the barrier of pre-existence of diplomatic relations
between the nations for granting of diplomatic immunities. The Convention does not
80
Preamble of Convention on Special Missions 1969 81
Article 1(e) to (k) 82
Article 9 (1) and (2)
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seek for any existence of diplomatic or consular relations between the states for
reception of special missions and for their protection.83
The Convention has adopted functional approach for protection of special
missionary, it prescribes that the function of mission shall commence as soon as the
mission enters into official contact with the Ministry of Foreign Affairs or with such
other organ of the receiving State as may be agreed.84
Once the official contract is
entered with the receiving state the missionary shall accord protection under the garb
of the Convention. The immunities and privileges accorded under the present
Convention on Special Mission, has given due weightier similar to that of immunities
and privileges granted under the Vienna Convention on diplomatic relations 1961, but
the removed the defect in applicability and has stretched area of application towards
other person who form part of diplomacy in receiving state or special missionary.
The present Convention accorders the special mission some of immunities and
privileges to protect and ensure safety of the special missionary in the receiving state.
The immunities provided under this Convention is based on functional completion of
the missionary in the receiving state the special missionary has the rights to use the
flag and emblem of the sending State.85
The Convention under Article 24 (2)
exemption premises of the special mission from all kinds of taxation and further the
Convention limits this exemption from taxation referred to in Article 24 (1) to special
missionary and not to the persons contracting with the sending State or with a member
of the special mission.
The Convention obligates the receiving state to take all appropriate steps to
protect the premises of the special mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission or impairment of its dignity. The
Convention protects the transactions made by the missionary in the interest of sending
state by granting inviolability to archives and documents of the special mission shall
be inviolable at all times and wherever they may be, when they bear visible external
marks of identification.
83
Article 7 84
Article 13 (1) 85
Article 19 and 20
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The Convention 1969 has not only widened the area of application but also
filled the gaps which were left untouched by the earlier Convention of Vienna 1961.
The Convention grants total immunity so far as it relates to functions of special
missionary and a diplomat is concern. The Convention 1969 grants immunity relating
to Freedom of movement freedom of communication which including the bag and the
courier, of the permanent diplomatic mission of the sending State and the bag of the
special mission shall not be opened or detained. The special mission and of the
members of its diplomatic staff shall be inviolable to arrest or detention in receiving
state. Further the Convention grants immunities not only to head of missionary but
also to diplomatic staff shall enjoy the same inviolability and protection as the
premises of the special mission.86
The Convention 1969 grants total immunity to the representatives of the sending
State in the special mission and the members of its diplomatic staff, immunity from
the criminal civil and administrative jurisdiction of the receiving State, and cannot be
compelled to give evidence as witness.87
The Convention not only obligates the
receiving state not to initiate criminal, civil and administrative cases against the
special missionary or diplomatic staff, the Convention not only gives them the right
but also imposes corresponding duty where in if there is breach of these duty the
receiving state can take action under their respective law. On the other hand it gives
rights to overcome immunity guaranteed under the Convention and take action against
the special missionary or diplomatic staff by the receiving state;
• If the private immovable property situated in the territory of the receiving
State, is not for the purpose of conducting of missionary work of the sending
State.
• Or in an action relating to succession in which the person concerned is
involved as executor, administrator, heir or legatee as a private person and not
on behalf of the sending State.
• Or in an action relating to any professional or commercial activity exercised
by the person concerned in the receiving State outside his official functions.
86
Article 29 and 30 87
Article 31 (1) to (3)
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• Or in an action for damages arising out of an accident caused by a vehicle
used outside the official functions of the person concerned.88
The Convention gives exemption to special missionary and diplomatic staff under
the receiving state criminal, civil and administrative law, but obligates the sending
state to punish them under there own law so far criminal, civil and administrative
action of these special missionary and diplomatic staff are concerned.89
These
obligation were much violated in many instances by the sending state where in even
thought the actions committed by these special missionary and diplomatic staff where
punishable under the sending state law they were left free.90
Further the Convention totally exempts special mission and the members of its
diplomatic staff from all dues and taxes, personal or real, national, regional or
municipal. The special mission and the members of its diplomatic staff cannot claim
the exemption from indirect taxes on goods and services, and from dues and taxes on
private immovable property situated in the territory of the receiving State not holding
for the purpose of sending state. The receiving has the right to impose taxes on private
income and capital taxes on investments made in commercial undertakings in the
receiving state.91 The Convention grants exemption to special missionary and to
diplomatic staff from all personal service and public service and military obligation of
the receiving state.
Article 35 of the Convention also grants exemption to custom duties, taxes and
related charges levied on the import or export of goods for the purpose of missionary.
Further the Convention obligates the receiving state not to inspect the personal
baggages of the missionary or his family members during their arrival or leaving or
during the course of their stay in the receiving country. The Convention has not only
provided immunity to the diplomatic staff but also extended its immunities to the
members of the family of the diplomats who have come to stay with the member of
the diplomat. The Convention has obligated the receiving state but also the third state
where the diplomat where the diplomat passes through.92
88
Article 31 (2) (a) to (d) 89
Article 31 (5) 90
Diplomatic embassy of Tehran in U.K 91
Article 33 (a) to (d) 92
Article 42 (1)
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The Convention grants immunities to the special missionary or the diplomats
during the time of peace between the nations, but also obligates the receiving state to
protect and grant safe passage to these persons even during the outbreak of war
irrespective of their nationality. Forgoing chapter four of this thesis will have detailed
discussion regarding the same.
2.4.4 Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, 1973
On 5 May 1970, the Permanent Representative of the Netherlands addressed a
letter expressing concerned to the president of the United Nations Security Council
about the increasing numbers of attacks on diplomats in various parts of the world.
This letter was transmitted to the president of the ICJ and the chair of the International
Law Commission. The reply the chair noted that the International Law Commission
had the matter under consideration once again.
In 1971, the Commission set up a working group to prepare a set of draft
Articles. The working group submitted three reports containing draft Articles
applying to crimes committed against diplomatic agents and other persons entitled to
special protection under international law. In Resolution 2926, invited states,
specialized agencies, and interested inter-governmental organizations to submit their
writ-ten comments concerning the prevention and punishment of crimes against
diplomatic agents and other protected persons. On 14 December 1973, the UNGA
adopted Resolution 3166 by consensus, thereby adopting the Convention on the
Prevention of Crimes against Internationally Protected Persons, including diplomatic
agents. The Convention 1973 was annexed to General Assembly adopted this
Convention to maintenance of international peace and the promotion of friendly
relations and co-operation among States, Considering that crimes against diplomatic
agents and other internationally protected persons jeopardizing the safety of these
persons create a serious threat to the maintenance of normal international relations
which are necessary for co-operation among States.93
The Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, 1973 (for short Convention 1973) covers most of
93
Preamble of Convention 1973
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the international personalities who indulge in international affaires of the state. The
Convention gives protection to those persons who represent their state interest in the
international arena. Article 1 (b) of Convention 1973 states “any representative or
official of a State or any official or other agent of an international organization of an
intergovernmental character who, at the time when and in the place where a crime
against him, his official premises, his private accommodation or his means of
transport is committed, is entitled pursuant to international law to special protection”.
The Convention 1973 has widened in the area of protection, the Vienna
Convention guarantees protection to diplomats, but has limited its area of application
relating to family, and other officials. The Convention 1973 gives special protection
not only to the official residence but also to all his private accommodation, his means
of transport etc., the Convention creates total inviolability of the receiving state
against the diplomats who were recognized as internationally protected person.94
The Convention obligated the receiving state to punish those who commit a
murder, kidnapping or other attack upon the person or liberty of an internationally
protected person; a violent attack upon the official premises, the private
accommodation or the means of transport of an internationally protected person likely
to endanger his person or liberty; a threat to commit any such attack; an attempt to
commit any such attack; and an act constituting participation as an accomplice in any
such attack shall be made by each State Party a crime under its internal law.95
The Convention obligates the receiving state to take such measures as may be
necessary to establish its jurisdiction over the crimes committed in its territory or on
board a ship or aircraft registered in that state.96 The Convention not only obligates
the receiving state to punish the criminals who have committed the crimes against the
international protected persons but also obligates the state to take practicable
measures to prevent preparation in their respective territories for the commission of
those crimes within or outside their territories.
94
Article 1 (b) Convention 1973 95
Article 2 (a) to (e) 96
Art 3 of Convention 1973
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2.4.5 International Convention against the Taking of Hostages 1979
On November 4, 1979, several hundred Iranian students invaded the U.S.
embassy and seized a group of hostages and demanded that the exiled Shah of Iran be
sent back from the United States. Iranian fanatics adopted a dangerous venture. The
inviolability of embassy premises and diplomatic personnel is one of the basic
principles of international law and the seizure of the embassy personnel could not
justified on any principles, except that it might be reminiscent of feudalism and
barbarism. The Security Council passed resolution calling on Iran to immediately
realize the hostages in the U.S. embassy in Teheran. The United States in desperation
referred the matter to the International Court of Justice.
The Court’s President Sir Humphrey Waldock of Great Britain observed that
“The continuation of the present situation express the hostage to privation, hardship,
anguish and even dangerous of life and health”. But court declined to rule the
American claim that Iran be ordered to put on trial those responsible for seizure of
U.S. embassy in Teheran.97
The taking of people as hostages is a gross violation of human rights it has in
fact bought anarchy in the realm of diplomacy and foreign relation. For this reason on
December 17, 1979, the U.N. General Assembly unanimously adopted a treaty to
make hostage-taking an international crime and required governments to prosecute
any hostage-taker that fell into their hands. The taking of hostages as a means of
ensuring the execution of armistices and other agreements, or as a means of
punishment and reprisal, was an accepted part of the ancient, ritualised law of war.
However, it was not until the twentieth century that the capture and murder of civilian
hostages became a common military strategy. The Nazis were infamous for their
policy of reprisals against civilian populations. The killing of civilian hostages was
declared a war crime by the Charter of the Nuremberg Tribunal.98
Article 34 of the
Fourth Geneva Convention 1949 prohibits the taking of civilian hostages.
Hostage-taking has in more recent times appeared in a new guise as a favored
weapon of the terrorist. Beginning sporadically in the late 1960’s, and growing
steadily thereafter, the taking of hostages became common. Some of the more
97
United states diplomatic and consular staff in Teheran Case ICJ 1980, p.3 98
Charter of the International Military Tribunal Art. 6 (b).
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prominent examples were the seizure and murder of Israeli athletes at the 1972
Munich Olympics; the seizure of 60 OPEC officials in Vienna in 1975; the 1976
hijacking of an Air France flight to Entebbe and the detention of the Jewish
passengers; the prolonged 1979-1981 detention of the American embassy staff in
Tehran; the capture of the Dominican embassy in Bogotá during a diplomatic
reception in February 1980; the siege of the Iranian embassy in London in April 1980;
and the spate of hostage-taking in Lebanon in the mid- and late-1980s.99 Terrorists
held hostage for week scores of diplomats in the Japanese Embassy Residence in
Lima, Peru.
2.5 United Nations International Immunities
‘International immunities’ refers to the immunity enjoyed by international
organizations and their personnel.100
Many abuses are committed by UN officials in
New York. The reason as to why New York is the city where most abuses by UN
officials occur is due to the fact that the UN headquarters is based there, while
diplomats receive their immunities from international custom, international
organizations are granted immunity by international treaties and Conventions. The
UN Charter and Convention do not define “international official”; however Suzanne
Bastid’s 1931 definition has been accepted by most academics. She defines them as
“persons, who, on the basis of an international treaty constituting a particular
international community, are appointed by this international community or by an
organ of it and under its control to exercise,...functions in the interest of this
particular international community”.101
From this definition the following can be
established. International officials are not diplomats. They represent an international
organization rather than a State. International organizations have important
responsibilities ranging from seeking to ensure human rights, to peace security, trade
and the environment. They resemble large multinational corporations and conduct
billions of dollars worth of transactions. Examples of international organizations are
99 J. Lambert, Terrorism and Hostages in International Law, Cambridge University Press, 1990, pp. 2-
5. 100
Y Ling, ‘A Comparative Study of the Privileges and Immunities of United Nations Member
Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic Agents’,
Washington & Lee Law Review, 1976, p. 91. 101
Ibid, p. 91
Evolution of Diplomatic Immunity
73
the UN and its subsidiary bodies, the IMF, the International Bank of Reconstruction
and Development, FAO, IAEA, OAS, Council of Europe and NATO, to name a few.
Initially, international organizations did not require privileges and immunities
because they did not have a political mandate, but by the 19th century international
immunities first appeared, even though international organizations only began to
increase after the Second World War. Even the Dumbarton Oaks proposal for the UN
Charter did not include any provisions for immunity and privileges, as it was
understood that not all officials needed immunity. When international organizations
with a political mandate began to emerge, many officials were granted diplomatic
immunity because it was a convenient and stable model. This misapplication of
immunity caused confusion, because the official represented the organization and
their home State.
The Preparatory Commission of the UN proposed the drafting of the
Convention on the Privileges and Immunities of the UN. This Convention was
necessary to help implement Article 105 of the UN Charter that allows for immunities
and privileges. Immunity is divided into four groups. The first group includes high-
level personnel, (The Secretary-General and Assistant Secretaries-General); the
second to fourth group includes the organization itself, the officials of the UN and
experts on mission. Article 18 of the UN Convention describes the immunity given to
officials of the organizations. It must be noted that there is a distinction between
permanent representatives, who are stationed at the UN headquarters throughout the
year, and temporary representatives, who are sent for particular sessions or conference
of the UN. Under provision 15 of the UN Headquarters Agreement, permanent
representatives are accorded similar status to that of diplomats accredited to the
sending State. Temporary representatives, on the other hand, enjoy only limited
exemption from criminal jurisdiction in the receiving State; limited to official
functions and not entitled to immunity to civil jurisdiction.
Unlike the Vienna Convention it limits the privileges and immunities of UN
officials to those necessary for independent exercise of their functions with regard to
the organization. In Westchester County v Ranollo102
a chauffer of the Secretary-
General of the UN was arrested for speeding while driving the Secretary-General to
102
Westchester County v Ranollo 67 N.Y.S.2d 31(1946).
Evolution of Diplomatic Immunity
74
an official UN Conference. At that time the court held that Ranollo was not acting in
his official capacity. However, should he be tried today the UN Convention would
consider his actions within his official function. In other words, the functional
necessity theory is used to justify their immunity. There are similarities between the
immunities of UN officials and diplomatic personnel, especially with regard to
personal inviolability, arrest and detention. Further immunities include immunity
from criminal jurisdiction only with regard to official functions. The UN Convention
provides two methods for the injured party to seek relief from an official abusing his
position. The first is waiver of immunity granted by the Secretary-General.103
Waiver
is only granted if it will not cause any prejudice to the interests of the organization.
The second method is where the UN settles with the claimants.104
The UN makes
settlement available to claimants who have been injured by officials who have
retained their immunity.
2.6 Conclusion
The ancient pattern of diplomacy differed from modern diplomacy in two
respects. First, the ancient diplomacy was an open communication of a plea, an
argument, a warning, a threat or a simple message, addressed to the opposing king in
his open court. On the other hand, modern diplomacy is essentially inter-personal
communication usually behind closed doors. Second, whereas diplomatic officials
now enjoy very extensive immunities and privileges under Vienna Convention on
Diplomatic Relation 1961, Convention on Special Missions 1969, Convention on
Protection of Diplomats 1973, Convention Against The Taking Hostages 1979, but in
the ancient times they were of limited character. The only firm injunction then in
force was that a diplomatic emissary should not be killed. The reasons that led to the
acceptance of such a restraint appear to be punished for communicating what his
master had asked him to communicate; and if the emissary’s was killed the message
in replay would not reach the emissary’s master.
The history has shown that even this injunction has been occasionally broken.
In the middle ages it was agreed that the king who received emissary had power and
jurisdiction to punish the envoy for his misdeeds. Ravana awarded the punishment of
103
Articles 20 of Convention 1961 104
Article 29
Evolution of Diplomatic Immunity
75
burning the tail of Hanuuman for his acts of destruction and killing. In middle ages
and the sixteenth, seventeenth and eighteenth centuries, many ambassadors suffered
loss of life or liberty due to bad temper of the receiving king. Diplomatic immunities
and privileges evolved only gradually and reached their fullest refinement in the
nineteenth and twentieth century.
The historical development of diplomacy and protection of diplomats led to
protection of diplomats in the modern civilized society. Diplomatic immunity has
long been accepted as a basic element of international law. It was considered to be
absolutely necessary that the diplomat receive the necessary freedoms in order to
fulfill his functions. It was necessary for primitive tribes, and later, States to
communicate negotiate with one another, so envoys were created. Their social
significance is relevant to both sending and receiving States. Diplomatic immunity
was once a divine right but changed into a “secular rationale for the idea of diplomatic
immunity” in civil law, as it is known in modern practices. The resulting of resident
missions produced a huge increase in the amount of diplomatic activity within Europe
in the 16th century. This increase led to a parallel rise in academic studies on the
subject of diplomacy, diplomatic law and, more importantly, diplomatic immunity.
Even if the unique position of diplomats was developed due to the influence of
history and respect for the sending State, the ruling theory that forms the foundation
of diplomatic immunity in this modern age is based on their functions being
necessary. Questions that arise are: Is there a need for immunity? What functions of a
diplomat require immunity? Would diplomats or the embassy be able to function
without absolute immunity? The forthcoming chapter examines diplomatic
immunities and their abuses. Rest of the chapters will focus on critical approach on
privileges and immunities. Certain basic principles of international law will be
examined and analyzed.