June 11, 2022
Good morning. Every Saturday, we write about one specific right that you possess as a citizen in our country. In today’s edition of “Know Your Rights”, we look at the rights of diplomats.
KNOW YOUR RIGHTS – EDITION 43
Rights of a Diplomat
Author and humourist Caskie Stinnett once said a diplomat is a person who can tell you to go to hell in such a way that you actually look forward to the trip. While that might sound harsh, diplomats play a crucial role in foreign policy. They reside in foreign countries as representatives of their home. More often than not, they act as a link between the two countries.
Under International Law, they perform the act of diplomacy where states establish and maintain international relations. The act of diplomacy can be done by a head of state or the minister of foreign relations. In the United States, the State Department is through which diplomacy is conducted, headed by the Secretary of State. The Indian equivalent is the Ministry of External and Foreign Affairs.
One unique example of a diplomat is the Israeli embassy having a water attaché to help share its best practices and technologies to advance India’s water management. Israel also announced an honorary consul in the northeast to increase its presence and collaboration.
The Congress of Vienna in 1815 codified customary rules of International Law for diplomatic representatives. When the United Nations was established, the International Law Commission was responsible for codifying the law for diplomatic agents. In 1961, the General Assembly adopted the Vienna Convention on diplomatic relations.
India has adopted the conventions as law. Article 14 divides diplomats into three broad categories. The first is Ambassadors accredited to the Head of State. They are diplomatic agents and representatives of a sovereign state. The second is an Envoy. While they’re diplomatic agents too, they enjoy fewer privileges than Ambassadors. The third and final category is Charges d’Affairs. They aren’t appointed by heads of state, but by the foreign ministers.
One thing that Article 14(2) mentions is that apart from precedent and etiquette, there’s not much difference between the three categories of diplomatic agents. Section 3(1) outlines their functions, such as representation, protection, observation, negotiation, and consular functions.
Immunities and privileges
Under International Law, diplomats enjoy special privileges and immunities. First up is Inviolability. Diplomatic agents are given personal security. Under Article 29 of the Conventions, it states diplomatic agents aren’t liable for any form of arrest or detention.
Broadly, there’s diplomatic immunity. It’s an established principle under International Law that limits the degree to which officials and employees of foreign governments are subject to another’s authority of police officers and judges. There’s the representational theory that states’ diplomats are agents or personal representatives of the sovereigns of the sending states. This has come under criticism for being irrational.
The functional theory states immunities and privileges are granted to diplomats because of the uniqueness of their work. Given their nature of work, if they aren’t afforded immunities, they could be held at the mercy of a sovereign state and misuse of local powers. The example of Indian diplomat Devyani Khobragade’s incarceration in New York divided opinion. Some said she hurt India’s image, while others said she was an exploiter.
There’s also the example of the Supreme Court restraining Italian Ambassador Daniele Mancini from leaving India. The court said he failed to honour his commitments that two Italian marines charged with the murder of fishermen in Kerala would stand trial. In this case, India violated the Vienna Conventions, which clearly state, “diplomats shall enjoy immunity from the criminal jurisdiction of the receiving State”. Citing this, European diplomats protested.
With these examples, there’s a debate on the limits of diplomatic immunity. Over the years, the Vienna Conventions on this issue have been fraying, thanks to public outrage. Other incidents involved serious allegations of murder and rape, and the accused was let go. There’s the extreme example of a Libyan Embassy staffer allegedly opening fire at protestors and killing a British police officer in 1984. Britain severed diplomatic relations, and the staffer left the country.
What many cases have in common is the host country determining that immunity shouldn’t give the perpetrator impunity. The alternative is envoys being vulnerable to coercion or blackmail. It’s a balancing act. Arresting a diplomat violates the Conventions and shows contempt for international norms. That country would send a message saying it’s above the law. This branches into other immunities like immunity from criminal jurisdiction, immunity from being a witness, and immunity from giving evidence in court.
The underlying principle of diplomatic immunities is that countries agree to treat each other’s diplomats with respect. There’s an underlying sense of if you mess with our diplomats, we’ll do the same to yours. In this context was the case of the Delhi-based Saudi diplomat accused of rape and slavery. Per the investigation, he allegedly bought two Nepali women to serve as maids. They were subject to torture and rape. Pinak Chakravarty wrote about this case and how diplomatic immunity can be exploited.
Diplomats are afforded other immunities as well. Article 34 of the Conventions states diplomats are exempt from all dues and taxes, personal, or national. Diplomats sometimes carry important documents and papers with them. Per Article 27, their bags should not be opened or detained. However, this isn’t absolute. If there is suspicion that an item isn’t for official use or is dangerous, then a custom inspection is allowed.
Diplomacy is the basic reality of international relations. They’re often crucial to international peace and order. Their immunities and privileges are vital to ensure cordial and effective relations between countries. The Vienna Conventions are recognised as a key pillar of progress for the UN.