evolution of diplomatic immunity chapter 2: evolution of...

Evolution of Diplomatic Immunity

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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


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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


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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.


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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.


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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


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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.


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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


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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


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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


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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.


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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


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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


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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


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.


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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


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


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


Refer to Chapter 4.10.1


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



E Young, ‘The Development of the Law of Diplomatic Relations’, British University of International

Law, 1964, p.143


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.


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.


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


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 9, p.5.


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



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


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


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


Murthy B.S, International Relations and Organization, (reprint, Eastern Book Company, Delhi),

1993, pp.71-74


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


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


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.


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




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


58

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


59

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


60

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.


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.


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.


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.


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


Parkinson v Potter (1885) 16 Q.B.D. 152


65

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)


66

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


67

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)


68

• 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)


69

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


70

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


71

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).


72

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


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).


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


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.

evolution of diplomatic immunity chapter 2: evolution of...

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