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TAMIL NADU NATIONAL LAW SCHOOL

ANALYSING THE LAW OF DIPLOMATIC IMMUNITY

Submitted in partial fulfillment of the requirements for the award of the


degree B.Com LLB (Hons)., Sixth Semester.

Submitted to: Prof. Nikita Submitted by: Ruchi Sharma

Course: Public International Law Course: B.COM.LLB. (Hons.)

Year: III rd Yr (BC0140049)

Semester: VI
ANALYSING THE LAW OF DIPLOMATIC IMMUNITY

Abstract: Diplomatic immunity is a principle of international law by which certain foreign


government officials are not subject to the jurisdiction of local courts and other authorities
for both their official and, to a large extent, their personal activities. The principle of
diplomatic immunity is one of the oldest elements of foreign relations. The underlying
concept is that foreign representatives can carry out their duties effectively only if they are
accorded a certain degree of protection from the application of standard law enforcement
practices of the host country. This paper traces the evolution of the rules of diplomatic law,
their codification and how in the modern international law those rules and principles are
applied. The researcher has analysed the pending case of Equatorial guinea v France and
framed why the diplomat should not be granted immunity. The researcher in this paper
tries to show how these immunities are often a subject of flagrant violations.

I. INTRODUCTION - AN EVOLUTION OF THE LAW

The rules of diplomatic law are found in the Vienna Convention. Diplomacy has been
described as "the management of international relations by negotiation or the conduct of
business between states by peaceful means1." States use a variety of means to conduct
diplomacy with each other. To a certain extent each type is governed by a special body of
diplomatic law. In particular, permanent missions in the territory of other states have always
had an important role in international law, and the law relating to them is well developed 2.
But the principle of diplomatic immunity is one of the oldest and customary rules of
international law. It was wellestablished by the end of the seventeenth century, evolving out
of the principle of sovereign immunity. (why did sovereign immunity come Traditionally,
diplomatic immunity was based on three theories: personal representation, extraterritoriality,
and functional necessity. The first theory proposes that a diplomat is, in a sense, the
personification of the sovereign he represents; the second suggests that the diplomats offices,
residences and persons are to be treated as if they are always on their home territory and the
third theory submits that immunity should be extended to diplomats only to the extent that
they may be able to carry out their duties without hindrance. With the passage of time and
shifts in the nature of diplomatic scheme, the first two theories have been abandoned in
favour of the third. The need to protect diplomats is in a nations interest in international

1
Bing Bing Jia The Immunity of State Officials for International Crimes Revisited 10 J. Int'l Crim. Just. 1303
2012.
2
see generally, ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW
WE USE IT (1994), pp. 90-94.
relations as those diplomatic personnel are essential to conduct the international affairs for
the well-being of the nation3.

1.1 Diplomatic Immunity: Basis and History

Domestic jurisdiction is a expression of state sovereignty and the principles of equality of


states and non-interference in domestic affairs4. The courts of every country should be able to
try offenses committed within its territory. Diplomatic immunity is a well-established
exception to that general international law principle of territorial jurisdiction5. That exception
developed from the concepts of sovereign immunity, the concepts of independence and
equality of states, and the existence of a specific rule of international law. Since the sixteenth
century there were three main theories of diplomatic immunity6. The first and the oldest is the
theory of 'personal representation'. It is essentially based on the notion that the representative
should be treated as if the sovereign himself was conducting diplomacy. The two main flaws
of this theory are that sovereignty is increasingly vested in the nation rather than a monarch,
and it does not seem to cover personal acts of diplomats and low rank officials. The second
theory, that of 'extraterritoriality', basically stands for the proposition that diplomats' offices,
homes, and persons are to be treated as if they are on the territory of the sending state. Today,
contrary to the popular belief, the idea that an embassy is physically a part of the sending
country is largely treated as a little more than a fiction7. Third, the theory of 'functional
necessity', the predominant one at present times, suggests that the basis of granting
diplomatic immunities lies in the simple fact that they are necessary for the performance of
the diplomatic functions.
1.2 Diplomatic Immunities: Modern Law and its Sources

The birth of The Vienna Convention on Diplomatic Relations, 1961 which was widely
regarded as codifying diplomatic law. The general provisions of the Vienna Convention may

3
HUGO GROTIUS, HUGO GROTIUS ON THE LAW OF WAR AND PEACE 438,439 (Student ed. 2012);
US Diplomatic and Consular Staff in Tehran (United States of America v. Iran), 1980 I.C.J. 3, Para 86 (May
24).Boos v. Barry, 485 U.S. 312 (1988).
4
See, MALCOLM N. SHAW, INTERNATIONAL LAW 452 (4th. ed., 1997).
5
See, Case Concerning US Diplomatic and Consular Staff in Teheran [1980] I.C.J Rep. 3. 61 I.L.R.504, 530
6
M. OGDON, JURIDICAL BASES OF DIPLOMATIC IMMUNITY (1936) passim; See also, CLIFTON .E
WILSON, DIPLOMATIC PRIVILEGES AND IMMUNITIES 1 (1967)
7
See, e.g., Khan v. Khan, 27 I.L. Rep.253 (1959) where the Canadian Supreme Court rejected the notion of
extraterritorialiy. Likewise, in Fatemi et al v. United States, noted in 36 I.L.R. 148 (1967), the Court of Appeals
(D.C. Circuit) held that an embassy is not a part of the territory of the sending state, therefore persons without
diplomatic immunity committing crimes therein may be prosecuted;
be summarized as follows: First, there are definitions of some traditional functions of the
diplomatic mission such as representation of the sending state in the receiving state8. Second,
certain rights of the receiving state are defined, including the rights not to approve the
prospective head of mission9, to declare, without explanation, any member of the diplomatic
staff a persona non grata10, and to set a limit to the size of the mission11. Third, the receiving
state is under a duty to protect the mission's premises12 and its communications, including the
diplomatic bag13, and to provide full facilities for the performance of the mission's
functions14. Turning to privileges and immunities under the 1961 Convention, these may be
divided into two categories: First, those immunities providing that the mission's premises and
documents are inviolable15. Second, the immunities of the diplomatic agents, their families16,
the subordinate staff, and their families17; The person of the diplomatic agent is inviolable
and cannot be arrested or detained. The inviolability of the agent is the oldest and most
fundamental immunity18.The diplomatic agent is also immune from the criminal,
administrative, and civil jurisdictions of the receiving state19. There seems to be no exception
whatsoever to the immunity from criminal jurisdiction. An accredited person is not exempt
from the obligation to obey local law and is subject to an express duty to respect the domestic
laws of the receiving state20. However, in the absence of a waiver by the sending state21, the
protected violator of a domestic rule will be immune from the local jurisdiction to enforce it.

8
Article 3 of VCDR
9
Article 4 of VCDR
10
Article 9. A recent example is the deportation of top French diplomat by Kabila's Congo for "...activities
incompatible with his duties" (alleged espionage and collaboration with former Mobutists). See, Tom Masland,
An African Big Man in Trouble, NEWS WEEK, Dec. 15, 1997, at 38.
11
Article 11 of VCDR
12
Article 22 of VCDR
13
Article 27 of VCDR
14
Article 25 of VCDR
15
Articles 22 and 25 respectively.
16
Provided they form part of the agent's household and are not nationals or permanent residents of the host state
(Article 37).
17
Provided they form part of the junior staff member's household and are not nationals or permanent residents
of the host state. Immunity of subordinate staff from civil and administrative and jurisdiction is limited to
official acts, (Article 37)
18
Article 29 of VCDR
19
Article 31 of VCDR
20
Article 41 of VCDR
21
Article 32 provides that the sending state may waive (expressly only) the immunity from accredited persons.
A recent and somewhat unusual example is the lifting by Georgia President Eduard Shevardnadze of immunity
of a Georgian diplomat suspected of the Jan. 3, 1997 killing of 16-year-old Jovianne Waltrick in Washington
D.C. while drunken driving. See, Waiving of Diplomat's Immunity Welcome, Proper in View of Offense
(Editorial), SUN-SENTINEL FT. LAUDERDALE, FLA., Feb. 20, 1997, at 18A; The Georgian diplomat was then tried
and sentenced to 21 years in prison.
There is no right as such under international law to diplomatic relations, and they exist by
virtue of mutual consent22. Article 253 of the Indian Constitution entails the Parliament to
introduce a legislation to give effect to an international agreement. In light of this provision,
the Indian Parliament enacted The Diplomatic Relations (Vienna Convention) Act, 1972 to
give effect to Indias obligations under the Vienna Convention. A balance between the
foreign diplomatic interests of the sending states mission and the receiving states territorial
sovereignty is the essence of the law of diplomatic immunity. The privileges that are
endowed upon the embassies and the diplomats then allow them to carry out the requisite
functions of diplomacy with the necessary amount of secrecy. Thus, diplomatic immunities
and privileges, while being an exception to the principle of territorial sovereignty on one
hand, do not allow transgressing of local laws on the other.

But the researcher feels that determining what distinguishes an official act from a personal
one is often not easy. No law enforcement officer, diplomatic mission, consulate or State
Department officer is authorized to determine whether a given set of circumstances
constitutes an official act. It is an issue which may be resolved only by the court which has
the jurisdiction of the subject matter in the alleged crime.

2. ABUSE OF DIPLOMATIC IMMUNITIES

Broadly speaking, there are two categories of abuse: deliberate abuse of terrorist or political
nature, and abuse of a more personal nature23. An incident falling under the first category -
abuse of terrorist or political nature - would be the 1984 incident in which a British police
constable was allegedly shot to death from the windows of the Libyan embassy. The incident
involved at least three types of abuse: abuse of the diplomatic premises, abuse of the
diplomatic bag, and abuse of the diplomatic status - all of which seem to have unconditional
immunity under the 1961 Vienna Convention. British authorities who entered the premises of
the Libyan embassy after its evacuation found weapons and forensic evidence indicating that
the shots that killed the police woman actually came from the embassy24. Following the
severance of diplomatic relations between the UK and Libya, Possibly the most widely
22
United States Diplomatic and Consular Staff in Tehran, [1979] ICJ Reports, 1980, p. 3, See also, Art 2
VCDR.
23
See, (the British Government response to the House of Commons Foreign Affairs Committee) Diplomatic
Immunities and Privileges, Government Report on Review of the Vienna Convention on Diplomatic Relations,
Cmnd. 9497, Paras. 6-7 (April, 1985), B.Y.B.I.L 437 (1985).
24
See, The Abuse of Diplomatic Immunities and Privileges, First Report from the (British House of Commons)
Foreign Affairs Committee, , HCP 127, para. 9 (Dec. 14, 1984)
publicized incident of diplomatic complicity in serious crime was the murder of a London
policewoman, killed from a shot fired from the Libyan Peoples Bureau. On that fateful day,
demonstrations were conducted by Libyan opponents of the Gaddafi Government on the
pavement opposite the bureau. Shots were fired from the bureau and killed the police woman
on duty25. The British government proposed severance of all diplomatic ties with Libya.
Likewise, the United States, after much internal debate, broke diplomatic relations with Iran
after terrorists seized the United States Embassy in Tehran and held United States nationals
hostage26. Abuse cases under the second category (that is, abuse of a more personal nature),
include serious offenses, driving and parking violations, and relatively small offenses.
Relatively recent examples include the "Absinito affair" in which the Papua New Guinea
ambassador to the US injured several people while drink-driving27, or the alleged rape of a
16-year-old Northern Virginia girl by the son of a Saudi Arabian diplomat28, Owing to their
privileged status diplomats, their families, staff and personal servants escape prosecution for
crimes ranging from driving under the influence of alcohol, to shoplifting, to rape and even to
murder as seen above in the London police womans case. The research suggests that if in
contrast, where diplomatic immunity is not available, justice can be done and human rights
are respected. If not all the at least the core crimes under international law like genocide,
war crimes, crimes against humanity, and the crime of aggression and grand corruption
should be made punishable irrespective of the position held.

3. EXEMPTION FROM CIVIL AND CRIMINAL JURISDICTION

It is pertinent to note that as per Article 31(1) of the VCDR, the diplomat enjoys immunity
from the criminal jurisdiction and from civil and administrative jurisdiction as well, subject to
the three exceptions mentioned in sub clauses (a), (b) and (c) of Article 31(1). First, where
the action relates to private immovable property situated within the host state, unless held for
mission purposes29, secondly, in litigation relating to succession matters in which the

25
Ian Black, Search for PC Yvonne Fletchers Killer Casts Old Shadow Over Libyas New Era, The
Guardian ,3 September 2010. https://www.theguardian.com (last visited: 5/5/17)
26
G. SICK, ALL FALL DOWN: AMERICA'S TRAGIC ENCOUNTER WITH IRAN pgs.
366,(P.288-89) (1985), the University of Michigan: 17 Sep 2008 (ISBN13: 9780595202539)
27
See, The Disgraceful Diplomats, FOREIGN REP., Aug. 20, 1998, available on 1998 WL 7895540. According
to that article the UNs Geneva-based Commission on Human Rights presented with details of several cases in
March 1998; Smuggling, assault, slavery, kidnapping and other crimes committed by persons enjoying
diplomatic immunity have all been reported. See, Gregory L. Stangle, When Diplomacy Meets Illegality:
Reevaluating the Need for the Diplomatic Bag, 3 DIGEST INT'L L. 51 (1995-1996), passim.
28
See, Eric Pianin, Bounds of Diplomatic Immunities: Victims to testify in support of Helm's Bill Limiting
Exemptions, WASH. POST, Aug. 5, 1987. (last visited: 5/5/17)
29
Intro Properties (UK) Ltd v. Sauvel [1983] 2 All ER 495; 64 ILR, p. 384
diplomats involved as a private person and, lastly, with respect to unofficial professional or
commercial activity engaged in by the agent. These exceptions do not include ordinary
contracts incidental to life in the receiving state, such as a contract for domestic services.
Diplomatic functions must be interpreted as also covering all other incidental actions, which
are indispensable for the performance of those general functions30.

The ICJ also takes a similar stand and holds that no distinction can be drawn between acts
performed in an official capacity and those claimed to have been performed in a private
capacity. Even when prima facie certain actions could be considered to be outside the official
duties, such actions may still be of official character if the diplomat was instructed by his
sending state to undertake that activity. The diplomatic agent is also immune from any
measure of execution and he can raise his immunity from execution to bar any form of
enforcement of a conviction or judgment against him. Article 31(3) of VCDR makes it amply
clear that no measure can be taken in respect of the diplomatic agent and that any measure of
execution cannot extend to infringing the inviolability of his person.

The immunity of the diplomat is so strong that in the Pinochet case it was decided that
immunity enjoyed by an ambassador in post is a complete immunity rendering him immune
from all actions or prosecutions31. However, in exceptional cases, a diplomat may be
arrested or detained on the basis of self-defence or in the interests of protecting human life32.
The acts which amount to international crimes may never be regarded as official acts.
According to the draft principle III of the Charter of the Nuremberg Tribunal, which is
recognised as law, the fact that a person who committed an act which constitutes a crime
under international law acted as Head of State or responsible Government official does not
relieve him from responsibility under international law33.

The researcher feels that an argument that is pertinent to be made here is, when it has been
established that a person enjoying diplomatic privilege has committed an illegal act, the
appropriate action for the receiving state is to request the recall of such person. He must lose
his immunities and if the sending government fails to honour this request, the receiving state
may declare the offending diplomatic officer to be persona non grata, and demand his rapid

30
Portugal v. Goncalves 82 ILR 115 (1990
31
Re Pinochet Ugarte Case (No. 3), [2000] 1 A.C. 147; D. Akande& S. Shah, Immunities of State Officials,
International Crimes, and Foreign Domestic Courts, 21 EUR.J.INT. LAW 815, 818 (2011)
32
ICJ Reports, 1980, p. 40
33
53International Law Commission, Yearbook of the International Law Commission 1950, vol II (New York:
UN, 1957), UN Doc A/CN.4/SER.A/1950/Add.I
departure from the territory of the receiving state34.Article 9 of the Vienna Convention allows
the receiving state to declare the person in question persona non grata35. (if violated art 41
and 43 of vcdr )

4. WAIVER OF IMMUNITY

By Article 32 of the 1961 Vienna Convention, the sending state may waive the immunity
from jurisdiction of diplomatic agents and others possessing immunity under the Convention.
No proceeding can take place against a diplomat unless his immunity has been waived by the
sending state as such immunity belongs not to the individual but to the sending state 36. The
receiving state if feels the need can request the sending state to waive of the immunity of the
diplomat in accordance with Article 32 of VCDR to try the diplomat. However such waiver
can only be made by the sending state in express terms37.In the absence of such a waiver, any
arrest made will be illegal. For a court to give effect to an explicit waiver, the waiver must
express the clear, complete, unambiguous, and unmistakable' manifestation of the foreign
sovereign's intent to waive its immunity.

5. THE RECENT PENDING CASE OF EQUATORIAL GUINEA (EQ) V. FRANCE

On 13 June 2016, Equatorial Guinea instituted proceedings against France with regard to a
dispute concerning the immunity from criminal jurisdiction of the Vice-President of the
Republic of Equatorial Guinea, Mr. Teodoro Nguema Obiang Mangue,(Obiang) and the legal
status of the building which houses the Embassy of Equatorial Guinea, located at 42
avenue Foch in Paris. On 29 September 2016, Equatorial Guinea submitted a Request for the
indication of provisional measures, asking the Court, inter alia, to order that France suspend
all the criminal proceedings brought against the Vice-President of Equatorial Guinea; that
France ensure that the building located at 42 avenue Foch in Paris is treated as premises of
Equatorial Guineas diplomatic mission in France and, in particular, assure its inviolability;
and that France refrain from taking any other measure that might aggravate or extend the
dispute submitted to the Court38

34
James T. Southwick, Abuse of Diplomatic Privilege and Immunity: Compensatory and Restrictive Reforms,
15 SYRACUSE J INTL COM 83, 92 (1988).
35
Art 9, VCDR
36
Draft Articles on Diplomatic Intercourse and Immunities, [1958] 2 YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION 16, U.N.Doc A/CN.4/116/Add.l and 2, Art 30.
37
R v. Kent, [1941] 1 K.B. 454.
38
Anton Moiseienko, Equatorial Guinea v France: What are the Limits on Prosecution of Corruption-Related
Money Laundering by Foreign Officials? https://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-
5.1 Whether domestic courts of France and its prosecuting agencies have any
jurisdiction in conducting a trial of case relating to money laundering by EQ diplomat

Mr. Obiang has been charged with corruption, money laundering and embezzlement of public
funds. It is important to analyse if the acts would amount to corruption. The researcher
analysis many forms of corruption, one of which is Grand corruption39 which is an
expression used to describe corruption that pervades the highest levels of government,
engendering major abuses of power. A broad erosion of the rule of law, economic stability
and confidence in good governance quickly follow. So, when the people on highest levels of
political system use their powers illegally and start converting public money for their private
gains, it is generally termed as grand corruption. Obiang has allegedly using public funds to
buy luxury properties and goods in France through various modes of money- laundering and
corruption. From the above meaning and definition of corruption and from the facts of case it
can be easily deduced that Mr. Ganzard and his ancestors have been committing the offence
of corruption since last three decades and the charge framed against him hold ground.
The researcher feels that the menace of corruption has severe impact on the basic human
dignity and other human rights while the money-laundering is one of the instance of
international crime of present generation. Therefore France must be given complete
jurisdiction to try any case for any act committed within its territory. However as far as the
building of EQ in france is concerned, the facts clearly state that it was a luxury property
privately owned by obiang in france and was bought from the proceeds of his corrupt
practices in the EQ Moreover, under Vienna Convention40, there is a mention of premises of
the mission. And the building cannot be stated as premises of the mission as it was
personal property of Obiang and there was not diplomatic mission carried out as such under
the act. Hence Vienna Convention on Diplomatic Relations 1961 is not applicable in this case
and so there is also no violation of the convention.

5.2 Whether Mr. Obiang is entitled to Diplomatic immunity.

limits-on-prosecution-of-corruption-related-money-laundering-by-foreign-officials/ Published on July 29, 2016


(last visited: 7/5/17)
39
United Nations Handbook Practical Anti-Corruption Measures for Prosecutors and Investigators, Vienna,
September 2004.
40
The premises of the mission are the buildings or parts of buildings and the land ancillary thereto,
irrespective of ownership, used for the purposes of the mission including the residence of the head of the
mission.
The immunity issue of Mr. Vice president has to be seen in the light of various backgrounds
in order to arrive at a fair conclusion. As the offences were committed in the territory of
france and every civilized nation has extra territorial applicability and also every country
would have jurisdiction in the offences committed in its boundaries. Even if for the argument
sake it is considered that the issue of Immunity to him needs to be considered. It has to be
seen that this immunity is extended in case the act was committed when the person was
acting in the official capacity as a representative of the nation.
Further, Section 11(a) of the 1946 General Convention on Privileges and Immunities on the
United Nations provides that Representatives of Members to the principal and subsidiary
organs of the United Nations and to conferences convened by the United Nations, shall, while
exercising their functions, enjoy Immunity from personal arrest or detention. That
provision also provides representatives with immunity from legal process but only with
respect to acts done (or words spoken or written) in their capacity as representatives. And in
the present case there was no such function discharged. The researcher feels that as
Diplomatic immunity is a privilege vested upon the diplomat so as for him to discharge his
function without any hindrance and in the present case no such function was discharged
therefore ICJ should narrow down the scope of diplomatic immunity to some extent to prevent
misuse of the power.

6. CONCLUSION

While the shield of diplomatic or consular immunity in cases of violent crime or tortious acts
may seem unfair, the inability to serve process on or obtain the testimony of a diplomat is
merely inconvenient. Removing these obstacles may indeed facilitate prosecution of foreign
businesses or governments, but it may also narrow the goals of the Vienna Convention and
complicate the performance of a diplomats duties.

Today diplomatic immunity often contradicts fundamental principles of justice in civilized


countries. Defenders of diplomatic immunity maintain that the trade-off between preserving
harmonious international relations and protecting diplomats abroad while allowing those who
have engaged in wrongdoing to escape sanction is acceptable. The consequence of the trade-
off is justification for the international community to re-evaluate the principle of diplomatic
immunity41.

At the end of the day, preventing the abuse of the diplomatic immunities and privileges
cannot be done merely by controlling any demonstrations or amending the Vienna
convention. The need of the hour also is a close co-ordination between the governments
which would facilitate an international security mechanism. The actual number and
percentage of abuses affecting fundamental human rights is relatively small, therefore a
complete wholesale rewriting of the rules or even a too-radical reform, is undesirable.
However, if need be the international community must analyse this conundrum and bring
about certain changes in the law as the abuse of diplomatic immunity is a serious matter and
cases of grievous crimes in the likes of rape, murder, genocide, Grand corruption must not go
unpunished as this is against the very basic and fundamental principle of human rights.

41
Diplomatic Crimes Legislation: Hearings Before the Senate Committee on Foreign Relations, 100th Cong.,
1st Sess. 102 (1987)
REFERANCES

STATUTES

ILC Draft Articles, Art.7.

United Nations Convention on Jurisdictional Immunities of States and Their Property, Art 18

United Nations Convention on Jurisdictional Immunities of States and Their Property, Art 5.

Vienna Convention on Diplomatic Relations 1961,

Journal Articles

Bing Bing Jia The Immunity of State Officials for International Crimes Revisited 10 J. Int'l
Crim. Just. 1303 2012.

C. Tomuschat, The International Law of State Immunity and its Development by National
Institutions, 44 VJTL (2011) 1105-114.

Steffen Wirth, Immunities, Related Problems, and Article 98 of the Rome Statute, 12 CRIM.
L.F. 429, 430 (2001)

ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT
(1994), pp. 90-94.

Waiving of Diplomat's Immunity Welcome, Proper in View of Offense (Editorial), SUN-SENTINEL FT.
LAUDERDALE, FLA., Feb. 20, 1997.

Books

International Law by Malcolm N.Shaw, Cambridge University Press, Sixth Edition.

Oppenhiems International Law, p 428

Reports

R. Kolodkin, Second Report on Immunity of State Officials from Foreign Criminal


Jurisdiction, UN Doc. A/CN.4/631, 10 June 2010