Privileges and Immunities of a Diplomat

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Privileges and Immunities of a Diplomat

Personal Inviolability

Diplomats are accorded the highest degree of privileges and immunities for their special job. Five privileges established in the Vienna Convention are exemption from taxation,[1] custom duties and baggage inspection, exemption from social security obligation, from personal and public services,[2] and exemption from giving evidence. Except for the exemption from baggage inspection, the other privileges fall under the realm of private law and will not be considered. Prior to the Vienna Convention, diplomats received the greatest degree of immunity. They could not be arrested unless they were actually engaged in plotting against the State they were accredited to, and even in such extreme circumstances an application for their recall was implemented. The Vienna Convention adopted the functional necessity theory to justify the diplomat’s privileges and immunities. These privileges and immunities are given to diplomats on the basis of reciprocity. Any government which fails to provide these to a diplomat within its territory knows that it could suffer not only collective protests from the diplomatic corps in its own capital, but also retaliation against its own representatives in a foreign State. Under Article 29, diplomats are accorded full immunity and, like the inviolability of a mission, this has two aspects. Firstly, there is immunity from action by law enforcement of the receiving State, and secondly there is the special duty of protection by the receiving State to take appropriate steps against attack.[3] As a consequence of the high incidence of political acts of violence directed against diplomats and other officials, the General Assembly of the UN adopted a Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents. The foreseen offences are primarily murder, kidnapping, attacks upon the person, violent attacks upon official and private premises, and any threats or attempts to commit any of the above offences. Nations ratifying the Prevention and Punishment Convention make these crimes punishable with appropriate penalties, which take into account the gravity of the offence and either extradite offenders or apply the domestic law.

Immunity from Jurisdiction

Jurisdictional immunity entails that persons with immunity cannot be brought before the courts for any illegal acts or offences committed while in the receiving State during the period of their functions.[4] This extends to all jurisdictions whether civil, administrative or criminal. Thus, a diplomatic agent who commits an illegal act in the receiving State cannot be prosecuted in the local courts as the courts would be “incompetent to pass upon the merits of action brought against such a person”.  The rationale behind criminal jurisdiction is to prosecute and punish those who commit illegal acts or offences. Immunity from criminal jurisdiction of a diplomatic agent, provided in Article 31, means that the diplomat cannot be brought before the criminal courts of the receiving State for illegal acts or offences committed in that State during his stay, which is contrary to the very ethos of the rule of law and justice. The scope of offences which may be considered is very broad. The largest category of offences involving diplomats has been, inter alia, drunk and negligent driving, parking offences and drugs possession, although incidents have also been reported of rape, assault and robbery.

In the above instances the diplomats were immune from jurisdiction and the victims could not prosecute, or were not able to claim for compensation. Governments should consider whether diplomatic relations should be prioritised over the protection of its citizens which gave the government its power. Article 31 lays down no procedure as to when or how immunity should be pleaded or established. These issues are usually left to the law of each State. When a court determines the issue of immunity, it must do so on the facts at the date when the issue comes before it and not on the facts at the time when the conduct or events gave rise to a charge or when proceedings were begun. There was a suggestion by the Venezuelan delegation at the Vienna Convention to place an obligation on the sending State to prosecute a diplomat accused of an offence that is punishable in both States. This suggestion seems appropriate and reasonable, but it was criticised as being too extreme. Even though the same act may be recognised as an offence under both jurisdictions, the potential exists that the consequences and the sanction for such an act may be vastly different. Immunity should be granted on the functions of the diplomat, his ratione materiae, and not his ratione personae.[5] The distinction is that the former deals with permanent substantive immunity from local law, while the latter deals with exemption from judicial process in the receiving State, meaning that ratione personae expires at the end of an assignment while ratione materiae continues.

Article 40 adopts a strictly functional approach to the question of privileges and immunities to be given to diplomats passing through a third state. The third state is obliged to accord the diplomat inviolability to ensure transit or return only if the government of the diplomat is recognised by the third state. This is also extended to his family members who are accompanying him or travelling separately to join him. Civil proceedings may be brought against them, provided that it does not involve arrest.

Inviolability of Diplomat’s Residence and Property

Previously there was no distinction between the residence of the ambassador and the premises of the mission. However, as a result of the growing numbers of diplomatic and official staff, it is often necessary to separate this premises.[6]

Article 36 provides that the personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds of suspicion that it contains articles that are not for official use of the mission or for personal use of the diplomat or his family.[7] Possessing a diplomatic passport means that personal luggage is seldom subjected to inspection. However, possessing a diplomatic passport does not necessarily mean immunity from criminal jurisdiction.

In the event that there are grounds of suspicion, the bags may be inspected in the presence of the diplomatic agent or his or her authorised representative. Some airports routinely allow the luggage to be sniffed by dogs to check for drugs. If the dogs sense drugs, the diplomat is normally requested to open the suspicious bag. If the diplomat does not allow his baggage to be inspected or tested by agents of the aircraft carrier, the carrier is under no obligation to carry him.

Diplomats and family	Administrative and technical staff	Service Staff and Private Servants
Exemption from tax	Exemption from tax	Exemption from tax on Emoluments
Exemption from custom duties and baggage inspection	Exemption from custom duties and baggage inspection	On condition they are covered by social security in another state, they are exempt from social security provisions
Exemption from giving Evidence	Exemption from giving Evidence
Exemption from personal	Exemption from personal

References and Works Cited
[1]           Vienna Convention on the Diplomatic Relation, Art. 28,1961.
[2]           Vienna Convention on the Diplomatic Relation, Art. 35, 1961.
[3]           Booth, Supra Note 92, at 424-425.
[4]           Barker, Supra Note 1, at 77.
[5]           Y. Dinstein, Diplomatic Immunity from Jurisdiction Rationae Materiae, 76 International & Comparative Law Quarterly, Vol. 15, at 76, Department of State,USA,  (1966).
[6]           Booth, Supra Note 92, at 122-123.
[7]           McClanahan, Supra Note 13, at 157.

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