The West Bengal National University of Juridical Sciences
The term ‘diplomat’ is generally given to a person who represents the interests and policies of their nation in a foreign nation. According to the Vienna Convention on Diplomatic Relations (heirafter referred to as VCDR), a” diplomatic agent is the head of or member of the diplomatic staff of a foreign country (sending state) mission in the foreign country (receiving state)”. According to Article 3 of the Convention, his primary task is to represent and protect the interest of the sending state in the foreign country, promote friendly relations and develop cultural and economic connection between the two countries and the staffs of the diplomatic missions (embassies) also have given the highest level of privileges and immunities in the host country.
Article 37 of Vienna Convention mentions that family members of a diplomatic agent forms part of the household staff shall enjoy the privileges specified under Article 29 to 36 however, though the family members forming part of the household enjoy immunity from host country’s criminal jurisdiction but as they don’t have any official duty, they are not barred from civil jurisdictions. They also don’t enjoy immunity if they are nationals of the receiving country. The grant of immunities and privileges doesn’t mean that the people are living in a ‘lawless space’
Definition- History and Concept of diplomatic immunity
The term “diplomat” is derived from the French word ‘diplomate’ which means an individual whose task is to negotiate on behalf of the state. They enjoy a ‘special status’ both in receiving and sending state. It is recognized as fundamental under the Draft Convention of the Harvard Research committee, 1932 and the Havana Convention, 1932. There are three period of development of diplomatic immunity. Firstly, ‘antiquity from universal law of Greece and Rome, Secondly, philosophy of natural law and thirdly, precedents of state practice and views of positivists from the seventeenth century.” There lies uncertainty in application due to lack of decisions and lack of data from State practice from states on Article 37. Indian evolution of diplomatic envoys can be dated back to 4th Century BC. Arthashastra written by the great Sanskrit scholar, Kautilya is one of the important sources of early Indian diplomatic history.
Article 37 of the Vienna Convention on Diplomatic Relations, 1961
Diplomatic Law is based on “peaceful co-existence and friendly relations” as reflected in Article 1 and 2 of the UN charter. In reply to number of governments the special rapporteur introduced article 28 of the 10th session of the Commission in 1958:
“Diplomatic agent, the members of the family apart from the household, if not nationalism of the receiving State, enjoys the privileges mentioned under Articles 22 to 27. If they are nationals of the receiving State, they are entitled to benefits of these privileges and immunities if they are also nationals of the sending State.”
This proposal was criticized heavily by members of the Commission and paragraphs 1 and 2 of Article 28 as drafted at the 9th session. Criticism was based on the fact that only a few governments objected to the previous draft. It was the commission’s duty to frame any provisions in furtherance of the best interest of the international community. The many States opined that the administrative and technical staff are more familiar with the confidential information than any other junior and for such a case, they needed same protection as diplomatic agents and families be treated for the same position like the agent.
Morocco, the Kher Republic and Egypt did recognize the convention but made a reservation to Article 37 (2). States like the United Kingdom, New Zealand, Greece, France, Denmark, and Australia objected to this reservation. This reservation was objected as it was in disagreement “incompatible with the object and purpose of this treaty”
The rule has developed into the rule of customary international law and is also relevant to states not a signatory to the Convention.
Prior to 1961, there was no disagreement with the object that diplomat’s family should be granted immunities. The idea becomes complex, about which family members should be granted the immunities and whether privileges should be extended to “members of the administrative and technical staff” as described by the Vienna Convention
According to Gerald Fitzmaurice, the staff “usually makes a more important and essential contribution to the functioning of the mission, than the junior attaché.” On the 10th session, we saw an adaptation of a final set of articles with a commentary thereon. The commission did propose to the General Assembly that draft should be consented by all member states.
History of Europeans, Roman, Chinese, Greek, and Indian shows that state practised such ‘diplomatic immunity’. Early on, states realized that protecting representatives reciprocally reward both the parties, so states granted the immunities to each other’s diplomats in spite of foreign envoys’ act. Theories like the theory of extraterritoriality, the theory of functional necessity and representative character aim to justify such privileges.
BASIS OF IMMUNTY
Theory of Representative Character: This theory is based on the fact that the diplomatic agent represents the sovereign state. The diplomat represents the sending state and owes no accredit to the receiving state and so the laws and jurisdictions of the receiving state doesn’t directly affect the representative.
Theory of Exterritorialy: This theory is one of the oldest and well known theories of diplomatic immunity. This implies that the premises of the diplomatic mission are outside the territory of the receiving state and only acts as an extension of the sending sate. The envoy which represents the other state by fiction also mean being outside the territory of the power which is accredited.
Theory of Functional Necessity: This theory is comparatively modern and mentions that the immunities are extended because they cannot exercise their functions properly unless proper immunities are granted. When they are liable under legal and political considerations from the receiving state, they are dependent on the goodwill of the accredited state and such does influence their actions and functioning. This concept of ‘functional necessity’ extends an obligation to the receiving state to grant immunities and privileges necessary for the envoy to functions effectively without any undue hindrance.
DURATION OF THE PRIVILEGES AND IMMUNITIES
Article 39(1) of the Vienna Convention states that every individual shall enjoy privileges and immunity on event of entering the receiving state on proceedings to take up the position. The Convention requires the diplomat to inform the Ministry of Foreign Affairs of the receiving state on “arrival and final departure of the person belonging to the family” Usually, they are entitled to such benefits which starts when they enter the territory and ends when they leave but such immunity ceases to exist when they cease to form part of the household. Additionally, Article 39 (3) mentions that even if the diplomat dies at his post, the members shall enjoy the immunities until a reasonable time is expired, which includes time to leave the receiving country.
FAMILIES OF DIPLOMATIC AGENT
The family is an extension of the persons of the diplomats themselves. There is a necessity to ensure independence and proper carrying out of functions. The wordings “member of the family forming part of the household” is not being determined by the Convention. Though efforts were put in formulation of a universal definition but the same didn’t get majority. Persons who qualify under this expression largely based on negotiating principles between states. States may provide guidelines and criteria to interpret the wordings. Most States have kept the rule flexible in order to accommodate unusual situations (polygamous diplomats arriving en poste with more than one wife)
All states except spouses of the diplomatic agent as member of the family and in some states; more than one spouse is also accepted. In UK ‘member of the family’ includes same-sex partners from other states. States also recognize minor child of the diplomat as a part of the member however, states defer in interpreting the term “minor” and apply domestic laws for the same.
Under the UK administrative of privileges accept the following persons. Firstly, a child between eighteen and twenty-five, resident with the diplomat, financially dependent on the diplomat, engaged “in full-time education at a recognized educational institution and not engaged in employment. Secondly, a dependent parent, residing with the diplomat. This list is not exhaustive but other claims of “part of household” are decided by the office from case to case basis. Germany, Belgium, US, Australia has taken similar approaches”.
Under the Convention, the family members of the Diplomatic Family can exercise professional or occupational activities. This privilege is on the based largely on state reciprocity. However, in such exercise they are not extended immunity from civil and administrative jurisdictions. In 1987, the Council of Europe formulated a model agreement to facilitate engagement in professional activities. Many European Countries have based on the Council of Europe Model.
Members of the service staff enjoy immunity only in respect of acts performed in furtherance to the course of duties and also tax and duty exemptions on salaries received under official function. Section 10 of the Convention mandates a notification to the receiving state, about the members becomes or ceases to be member of the family of the diplomat.Unlike US and UK, States have not made public any formalized rule for the same.
In Skeen v. Federative Republic of Brazil, the plaintiff filed proceedings against the diplomats of Brazil, his grandson and the Republic of Brazil for a shooting outside a night club by his grandson. The concerned State gave a declaration about the status of the diplomat and asserts that the grandson also forms part of the family. The court found it problematic in determining whether the receiving state was immune and whether the grandson acted under the “scope of office or employment”. The UK accepts recognized same-sex partners of the ambassador and such has to meet the requirement of ‘overseas relationship’ or the relationship as registered as a civil partnership under the Act.
However, the diplomats may accredit any other relationship other than the ‘household’, the concern should notify the same to the Foreign Ministry explaining the reason of such addition and why they wish such individuals are to be protected and granted immunity. Each case is decided to keep in mind the facts and circumstances of the situation.
In the case of US v. Al-Hamadi, Virginian Court contended the position of immunity of the adult son Yemeni diplomat accused of a firearm violation. The State concluded that the person is not granted immunity. However, if reasonable the state department would give the interpretation of the treaty if given ‘substantial defence’ is needed.
Under the US practice, a person having more than one wife is also accepted of a polygamous relationship. In many capitals, unmarried wife is also considered as ‘spouse’ under forming part of the family. This practice is however not widely practised. In 1997 the UK foreign and commonwealth office announced that a British diplomat would be accompanied by a woman who is not his wife and the same was accepted. Under the German Ministry, the term ‘family’ included spouse, minor children, and an unmarried child of full age provided they live in the same household and are economically dependent on the diplomat himself.
In A v. State of Justice, the State Secretary found that an adult daughter, not dependant came to the Netherlands along with the diplomat but with her grandparents to complete her degree education. It was ordered that the daughter was not under the supervision of the diplomat and doesn’t qualify to form part of the household for the mission. However, the Convention nowhere mentions that to be considered, the child should accompany her parents in the receiving state.
Under Article 31.1(c) of the Vienna Convention, the members of the diplomatic family and junior staff are not prohibited under the scope of the prohibition under Article 42 of the convention on the practice by a diplomat of any professional or commercial activity for a profit motive. Any monetary benefit outside the mission is clearly excluded from the family member’s entitlement to immunity. Article 34(d) also mentions general tax exemptions in private profit activities in the receiving state. This rule also applies to those incomes of family members arising from his/her employment of services in the receiving state. Some scholars argue that this benefit would preclude suit against them or provide them with unequivocal tax benefits, however some states have a cultural, political, procedure or concerned with the protection of the employment for local nationals. An increasing practise for providing job opportunity of the families of the diplomat to avoid bureaucratic obstacles provide such individual with work permits and formulate a special bilateral agreement.
ADMINISTRATIVE AND TECHNICAL STAFF
The issue of the privileges and immunities to be extended ‘suite’ there was no constant practice among the State. The UK, US and Germany extend the entire immunity to domestic servants and private individual of the ambassador. However, most other states limit the immunity of the junior staff in some other way. The matter is functioned through reciprocity; there lie no concrete rules with regard to such privileges.
“The Diplomatic Immunity (Restriction) Act of 1955 in the UK limit on reciprocity basis the immunity which is extended to junior staff in London. Most States have immunity restricted to the junior staff flowed the status as agents of the foreign government, immunity with regard to official function and tax emption from official emoluments.” Lately, the Vienna Convention has made a clear distinction between administrative and technical staff, who has the status of highly responsible duties and deals with a lower level with diplomatic matters, and others as personal secretaries may have access to confidential matters and diplomatic secrets. In such a case, immunity should extend to protect any fraud and malpractice.
The agreement between Exchange of Notes with Sweden(1981) state “ that the dependants who obtain employment and enjoy immunity from the jurisdiction of the receiving state, under the Vienna Convention or any other agreement, the sending state waive such immunity with respect of civil and administrative jurisdictions relating to matters of employment. These dependents are liable to pay income tax imposed by the receiving state.” This proposition has to face the same criticism similar to the UK-Brazil Agreement. The most appropriate arrangement was between the United Kingdom and the United States in 1981 which stated that “in the question of such waiver of immunity from civil and administrative jurisdictions in respect of matters related to employment. The Embassy also noted that the provisions of Article 31(1) (c) and Article 37 (1) and (2) of the Vienna Convention don’t confer such immunity.” It should also be noted that there lies no immunity from criminal jurisdictions, no provision on taxation dealt with under Article 34 of the Convention.
The agreement concluded by the exchange of communication between Brazil and the United Kingdom. Such include that any immunity from the employment will be irrevocably suspended in terms of dependants who exercise remuneration activity within the agreement. Such dependants who exercise activity within the agreement will only be exempted.
The International Court of Justice explains that a large part of the Vienna Convention reflects customary international law. The preamble also mentions that all states have recognized the status of diplomats. It is very essential that receiving states treat the foreign diplomats and members forming part of the family with respect and with regard to privileges which they are legally entitled to under international law. Any shortcomings in such enforcements may cast doubt on any receiving state to function according to the international obligations and severely affect policy decision. There should not be a ‘hands-off ‘outlook to criminal activities involving the diplomat. Instances of major criminal offences should be thoroughly investigated before arriving at an informed decision.
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