Diplomatic Immunity: Privilege or Peril?

By Mohd. Sahil Khan 10 Minutes Read

Introduction

People have always wanted to be free and treated fairly. For a long time, powerful rulers and religions controlled everything. But then, brave people started to fight back. The Magna Carta was a big step in saying, “Kings aren’t all-powerful!” This helped start the idea of everyone being equal.

Later, two huge world wars showed that countries can’t just do whatever they want. So, countries started working together and making promises to stop fighting. This is called diplomacy. It’s like trying to be friends with someone you don’t really like but knowing it’s important to get along.

Theory of waiver

Diplomats enjoy certain protections and privileges, but these are not a license to act without accountability.

• While the law should not be used unfairly, individuals can misuse it. The case of Devyani Khobragade (an Indian IFS officer who was charged for visa fraud and subsequently arrested) is a prime example of this.
• The principle of the rule of law, a key principle of International law, prohibits arbitrary actions.
• The United Nations, the primary architect of the Vienna Convention on Diplomatic Relations, emphasized justice in its creation.
• To prevent diplomats from abusing their powers, restrictions have been put in place. The convention outlines conditions under which diplomatic immunity can be waived, but other methods of termination also exist.
• Article 32 of the Vienna Convention is the chief source of the theory of waiver but there are several other provisions by which termination can be done.

Who can waive the immunity

• Diplomatic immunities are not absolute and are subject to limitations to uphold the rule of law.
• Article 32 of the Vienna Convention on Diplomatic Relations provides that a sending state may waive the immunity of its diplomatic agents.
• However, this waiver must be explicit and cannot be implied from actions. Moreover, diplomats initiating legal proceedings cannot claim immunity from counterclaims related to the original case.
• Article 32 further specifies that a waiver of immunity for civil or administrative proceedings does not automatically extend to the enforcement of a judgment. A separate, explicit waiver is necessary for this purpose.

1. In the case of Fayed v. Al Tajir[1], the court determined that diplomatic immunity is a sovereign right belonging to the sending State. Consequently, only the state itself can relinquish this immunity for its diplomatic representatives.

2. The case of A Company v. Republic of X[2] established that a simple agreement between parties cannot compel a state to waive its diplomatic immunity. Such a waiver must be explicitly granted to the court when jurisdiction is sought over the matter protected by immunity.

Immunity duration

Determining the exact period of diplomatic immunity is crucial. The four provisions outlined in Article 39 of the Vienna Convention offer guidance on this matter.

1. Beginning of the immunity

• For diplomats entering a host country, immunities begin upon arrival.
• However, if already present in the host country, immunity commences from the official notification of their appointment to the Ministry of External Affairs or any other mutually agreed-upon authority.

2. Termination of the immunity

• Upon departure from the country, either at the conclusion of their duties or after a reasonable timeframe, diplomatic immunity ceases.
• In the event of death, the diplomat’s family members continue to enjoy these privileges for a reasonable period.

Diplomatic immunity only applies to actions performed while carrying out official duties. If a diplomat commits an act outside their official capacity, they are not protected by immunity.

The duration of diplomatic immunity extends beyond the official term of a diplomat. They maintain this protection until they complete their duties and affairs related to their diplomatic role. This principle is supported by the case of Musurus Bey v. Gadban.[3]

The duration of diplomatic immunity is not indefinite. As established in In re Suarez[4], immunity ceases upon termination of diplomatic functions. The scope of immunity post-recall is clarified in Magdalena Steam Navigation Company v. Martin[5]. This case confirms that while an ambassador enjoys immunity during accreditation and for a reasonable period post-recall, jurisdiction can be asserted over subsequent actions and even unofficial conduct during the diplomatic tenure.

Once diplomatic status is revoked, as per Marshall v. Critico[6], a former diplomat becomes subject to the host country’s laws, like any other foreign national.

Relationship between privilege and immunity

• The relationship between diplomatic privilege and immunity is crucial. Legal proceedings cannot be initiated against a diplomat while they hold office.
• While diplomatic privilege ends upon termination of appointment, immunity from legal action persists for acts committed during the period of privilege.

Exceptions to the grant of immunity

1. Criminal cases

• Diplomats enjoy complete immunity from criminal prosecution in the host country. There are no exceptions to this rule. This does not, however, grant diplomats unrestricted freedom to act without consequence.
• One potential recourse for egregious misconduct is dismissal. This action was taken in the case of Afghanistan’s Sultan Mahmus Dadar, who was involved in a criminal trespass incident. The embassy responded by terminating his position and expelling him.

2. Immunity in civil and administrative action

• Article 31 of the Vienna Convention establishes specific exceptions to diplomatic immunity in civil and administrative cases.
• These include disputes related to privately owned real estate within the host country, matters of inheritance where the diplomat is involved as a private individual rather than a state representative, and any commercial activities unrelated to official duties.
• Consequently, diplomatic immunity in civil and administrative matters is not absolute but subject to these limitations.

3. Immunity from being a witness

• Diplomats are exempt from compulsory testimony in both civil and criminal proceedings as per Article 31(2) of the Vienna Convention.
• While they cannot be forced to be witnesses, they retain the discretion to voluntarily provide evidence if they choose to do so.

4. Tax immunity

• Diplomats enjoy tax exemptions under Article 34 of the Vienna Convention. However, certain exceptions apply.
• Indirect taxes, such as those on goods, services, and hotel charges, are exempt. Conversely, diplomats are liable for taxes on their privately owned real estate, including property and utility bills.
• Additionally, estate, inheritance, and succession duties imposed by the host state must be paid. Taxes on personal income generated within the host country are also applicable.
• Finally, specific charges related to property transactions, like mortgage and registration fees, are the responsibility of diplomats.

5. Immunity from baggage inspection

• Diplomats enjoy immunity from routine baggage inspections.
• However, in exceptional circumstances warranting inspection, such as suspicion of prohibited items, the search must be conducted in the presence of a diplomatic official. Any restricted goods are subject to quarantine procedures.

6. Immunity in travelling

• Diplomats have freedom of movement within the host country but must adhere to its laws and regulations pursuant to Article 26 of the Vienna Convention.

Conclusion

In conclusion, the concept of diplomatic immunity is a delicate balance between upholding the rule of law and ensuring smooth international relations. While diplomats enjoy certain privileges and protections, these are not absolute.

The Vienna Convention on Diplomatic Relations outlines the framework for diplomatic immunity, including its limitations and the process for waiver. Striking this balance is crucial for effective diplomacy and the prevention of diplomatic crises, while also ensuring that the host country’s legal system is respected.

[1] [1988] QB 712.

[2] [1990] 2 Lloyds Rep.520, 87 ILR 412.

[3]  [1894] 1 Q.B. 533.

[4] 261 S.W.3d 880.

[5] [1859] 34 LTOS 30.

[6] (1808) 9 East 447.

Mohd. Sahil Khan