Author : Nisha Patnaik, Student at KIIT School of Law, Bhubaneswar, Odisha.
Diplomatic immunity is enjoyed by foreign states or international organizations and their official representatives from the jurisdiction of the country in which they are present. The Vienna Convention on Diplomatic Relations codifies rules of international law on diplomatic privileges and immunities.The main diplomatic mission consists of representing the state and sending the state for protecting the interests of the citizens.Together with the Vienna Convention on Consular Relations, these two instruments systematize the rules governing the immunities available to foreign officials.The two instruments are also known for their high amount of ratifications and their influence on day-to-day conduct of international relations. Be that as it may, immunity from jurisdiction, regardless of whether as sees the state itself or as representatives, is grounded in the prerequisite which under international law is to regard regional uprightness and political freedom of the states. Sometimes, diplomats abuse their status to commit acts prohibited by law and claim immunity from legal process.
This accompanying paper would explore the scope of diplomatic immunity under the Vienna Convention on Diplomatic Relations and also the problem of abuse of immunities and it’s implications on the balance between immunities and the duty to respect the local laws and regulations
Keywords : Diplomatic Immunity, Vienna Convention, Consular Relations, Jurisdiction.
Aside from the issue of vaccinations, immunity means the enjoyment of legal protection from criminal jurisdiction. In the case of diplomats, immunity is derived from the special status afforded to representatives of other states since ancient times. These unwritten rules were codified in the early 1960s by the Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR).Tactics are not the only people who experience insecurity. Submitted consulates employees enjoy the same rights – or less – under the Vienna Convention on Consular Relations.The main diplomatic mission consists of representing the state and sending the state for protecting the interests of the citizens.Together with the Vienna Convention on Consular Relations, these two instruments systematize the rules governing the immunities available to foreign officials.The two instruments are also known for their high amount of ratifications and their influence on day-to-day conduct of international relations.
Representatives of the state also enjoy non-infection during official visits to another country. This applies especially to heads of state and government and to foreign ministers and escorts, who should be allowed to represent their country abroad without borders.. The VCDR basically provides immunity to the representatives of the sending state in the host nation.Many a times , this immunity has been and is being abused by the diplomats which has been discussed in this paper.
VIENNA CONVENTION ON DIPLOMATIC RELATIONS
International agreements on the protection of embassies can be found in the VCDR. For example, a pro-government state is not allowed to prosecute strategists, and should protect them, as well as their families and property. The main purpose of the Convention is to allow strategists to carry out their work without hindrance in a host country. They can do this only if they do not face the danger of punishing the government of the latest world.
These agreements are essential to international relations. The strategists try to ensure that international relations are as smooth as possible. This sometimes means they have to raise difficult issues in a straightforward manner. In doing so they take into account local cultures and places to ensure that their efforts achieve great results.
The Vienna Convention allows Dutch strategists to pursue the interests of Dutch citizens and businesses abroad as effectively as possible, even when there is doubts about legal certainty. Dutch strategists can also use their influence to remind countries that receive their international obligations, for example human rights.
SCOPE OF VIENNA CONVENTION ON CONSULAR RELATION
Two years after the VCDR was adopted, an alike meeting was called in Vienna in order to strengthen rights & protections with respect to the embassies, leading to the adoption of the VCCR, 1963.The VCCR recognizes the personal infringement of consulates & lays down that consular servants & staff will have no control over the administration of the jurisdiction & the administrative authority of the sovereign in relation to task done while performing their diplomatic obligations . It also sets out the main consular functions, most importantly, the protection of the interests of exporting countries & their nations & corporations, not exceeding the limits sanctioned by law of nations & also various other things. Art 43 of the VCCR provides for the protection of consulates & also protects them from the jurisdiction of the legal or administrative authorities of the State in relation to ‘diplomatic acts’, which are detailed in Art 5 of VCCR.
Consuls, represent the sending nation in various forms of governance . However, their political activities are few & rightly not evenly permitted level of protection from being treated as diplomats.The consuls do not have absolute immunity unlike the diplomats. Consuls have a commission from the exporting country & authorization of the acquiring nation.They are entitled to the similar regular privileges & tax benefits as diplomats. In 1979, the US embassy, by a few hundred protesters, was seized in Tehran. Historical archives s were confiscated & around fifty ambassadors & consuls were captivated.In 1980, the ICJ declared under the 1961 (& 1963) International Relations Conference: Iran is placed under the most divisive obligations as a receiving country, taking the necessary steps to ensure that US embassies & consulates, their staff & their archives, their communication & free movement of members of their staff. These are the duties under the law of nations as well. The Court particularly emphasized the moral decay of Iran & the conflict between its conduct & its obligations under the full corpus of international rules, including diplomatic & diplomatic law, which the Court hereby re-emphasizes.
PROBLEM OF ABUSE OF DIPLOMATIC IMMUNITY
As mentioned earlier, immunity to the diplomats is the fundamental basis of worldwide relations & were entrenched to foster relations between countries by safeguarding the representatives of the sending countries from counter-violence during the global conflicts.Misuse of immunities by the diplomats compromises the principles of privileges & immunity in relation to the VCDR. There are various ways in which misuse of privileges can take place.The abuse of immunity by the diplomats, their relatives & members of family & by the consuls has led to the questioning of the aim & objective of the VCDR as they hardly follow the norms of the nations where they represent their nation which caters to the very frequent misuse of diplomatic privileges.Among all the kinds of abuses by the diplomats, the misuse of immunity which is of criminal nature merits notable inspection.Also, for the misuse of the immunity, the ambassador is just not the only one to be blamed but also the country sending them as they represent that country.
India is rife with many such cases of abuse of immunity by diplomats. Taking into instance a case where the Bahrain’s diplomat in Mumbai was charged with the molestation of a woman who was residing in the same society where the diplomat resided.The diplomat did not get arrested as he was vested with the diplomatic privilege under VCDR. In another case, a case of criminal nature was filed against an Israeli diplomat by an Indian officer for injuring an official at the airport.Nothing was done against the action of diplomat. Several queries where raised with regard to utilization & misuse of diplomatic privilege in the case of Devyani Khobragade where she was saved because of the the immunity
Further in another case which took place in London, the diplomat for Zambia was arrested as had heroin with him.Later he was immuned from criminal jurisdiction as a diplomat has to be protected from criminal penalty & prosecution in the receiving state.All of these abuse of immunity by the diplomats, kind of contradicts Art 41(1) of VCDRA where it mentions that the diplomats have an obligation respect the norms of the host country.
The state that sends the diplomat & the persons connected to him who possess immunity may waive the immunity from jurisdiction of diplomatic agents .
In Fayed v. Al-Tajir, where apparent immunity waiver with respect to the insecurity of the ambassador was acknowledged to the appellate court, Kerr LJ made it clear that under international & English law, insecurity was the right of the exporting government & therefore only the state could invalidate the defense of its ambassadors. It was also pointed out that the defense of the defendant involved in the case brought to him was not a vehicle for the impulsive expulsion of the sovereign.Taking into account the principle that the immunity & privilege under the convention is safeguarding the sovereign & not the concerned individual , that waiver must be distinctly articulated by the state in that way.
The VCDR has entrenched itself as one of the foundations of global relations.The VCDR contains diplomatic immunities that has developed , in part due to the outcome of sovereign immunity & independence of nations & also in part, as a major element of an international system.
Nevertheless many cases depicted that there might be a conflict between the principles of law of nations & implementation of VCDR towards human right violations in the global affairs.The sovereign is responsible to not arbitrarily take life & tale measures to protect the life of those within the jurisdiction of state..The end of this conflict would be to reconsider VCDR..Even though Art 41 says that, it is an obligation on the part of the representatives of the sending country to follow the norms of host nation yet there are no consequences mentioned for the breach of laws by the diplomats.In the recent past , there has been increase in diplomatic crimes as immunities are getting misused.Therefore diplomatic immunity should be to provide diplomatic protection so as to make sure that the effective performance of the functions of diplomatic missions by diplomats as representing their state & not just for the fact that he is an representative of another state.There should be an amendment in VCDR so as to try & prosecute diplomats for criminal offences as that would promote justice & preserve the purpose of Vienna Convention.
 VCDR, Art 43.
 S.R.Subramanian, ‘ The Abuse of Diplomatic Immunities & the Balance between Immunities & the Duty to Respect the Local Laws & Regulations under the Vienna Conventions: The Recent Indian Experience’(17 Oct 2017) https://brill.com/view/journals/cjgg/3/2/Art-p182_182.xml?language=en#FN000075 accessed 26 September 2020.
 Malcolm N Shaw, International Law(7thedn, Cambridge University Press, 2008) 772.
 VCDR, Art 10.
 US Hostage Case (USA v Iran) (Case Concerning United States Diplomatic & Consular Staff in Tehran ) ICJ Rep 45.
 Case Concerning the Arrest Warrant of 11 April 2000 (Belgium v. Nicod & Anr)  ICJ Rep 3 .
 US Hostage (n1)
 Erik M. G. Denters & Nico Schrijver ,’Reflections on International Law from the Low Countries: In Honour of Paul de Waart’  PL 163.
 William G. Morris, ‘Constitutional Solutions to the Problem of Diplomatic Crime & Immunity’ HLR 601.
https://www.grin.com/document/353367 accessed on 29 September, 2020.
 Sagar Rajput, ‘Bahrain diplomat accused of abusing woman sent home’ (Mumbai, 29 December 2013).http://www.mid-day.com/Arts/bahrain-diplomat-accused-of-abusing-woman-sent-home/246384 accessed on 1st October 2020.
 VCDR, Art 31(1)
VCDR, Art 32
 Fayed v. Al-Tajir ,  QB 712.
 Malcolm N Shaw, International Law (n3) 771.