Diplomatic Laws

Assistant Professor
Department of Law
University of Chittagong
A diplomat is a commissioned public officer,
to supervise and transact the affairs (conduct
official negotiations and maintain political,
economic, and social relations) of the government
which has employed them, in a foreign country.
 Diplomatic Envoys and its Classification
Diplomatic agents are those persons who abide in foreign
state as representatives of their own states. According to
Article 14 – Vienna Convention on the Diplomatic
Relations 1961

“Heads of mission are divided into three classes, namely:

(a)    that of ambassadors or nuncios accredited to Heads
of State, and other heads of mission of equivalent rank;
(b)    that of envoys, ministers and internuncios
accredited to Heads of State;
(c)    that of charges d'affaires accredited to Ministers for
Foreign Affairs.
Ambassadors: - The personal representatives of the Head of the
state are said to be ambassadors. And in the common wealth
countries the representatives are said to be the High
Commissioners. As for example, the representative of Pakistan in
India is called High Commissioner.
Ministers: - Ministers are other diplomatic
officials accredited to the other countries, but
ministers are not the personal representatives of
the Head of the state. So, they receive less
honour as compared to ambassadors.
Charge d’ Affairs: - The officials
accredited to foreign state by the
foreign office to the foreign office.
They are less important as compare to
ambassadors and ministers. They do not
enjoy honour and title as are available
to ambassadors and ministers. They
may either be appointed permanently or
temporarily. But usually they are
appointed temporarily.
Right of Legation:
The right of a state to send and receive diplomatic
envoys is termed as the right of legation.
The right of a state to send its diplomatic envoy to
another state is the active right of legation, while
that of receiving a diplomatic envoy from another
state is the passive right of legation.
Letter of Credence:
The appointment of an individual as ambassador is
announced to the state to which he is accredited in
certain official papers to be handed in by the envoy
to the state to which he is sent. The first official
paper is the Letter of Credence or letters de
Creance, which sets forth the name of the
diplomatic agent and the general object of his
mission.
Diplomatic Corps:
A Diplomatic Corps consists of all the diplomatic
envoys from various countries of the world
accredited to a particular State.
The main function of the Diplomatic Corps is to
protect the rights, privileges and honours of the
body of diplomatic envoys.
Dean of the Diplomatic Corps:
The Head of the Diplomatic Corps is known as the
Dean, who in fact, is the Ambassador of a country
who delivered his credentials on the earliest date.
Dean of the Diplomatic Corps is the recognized
intermediary between the Diplomatic Corps and
the state to which he is accredited.
Functions of a Diplomatic Agent:

The function of a diplomatic mission, as contained in the

Vienna Convention on Diplomatic Relations, 1961, consist inter
alia in:
Representing the sending state in the receiving state
Protecting in the receiving state the interests of the sending state
and of its national, within the limits permitted by int. law
 Negotiating with the Govt. of the receiving State.
Ascertaining by all lawful means conditions and developments
in the receiving States and reporting thereon to the Govt. of the
sending State
Promoting friendly relations between the sending State and the
receiving State, and developing their economic, cultural and
scientific relations.
Diplomatic Immunity:
Diplomatic immunity is a form of legal
immunity and a policy held between
governments, which ensures that
diplomats are given safe passage and
are considered not susceptible to
lawsuit or prosecution under the host
country's laws (although they can be
expelled).
Basis of Diplomatic Immunity

Theory of extra-territoriality
Theory of representation
Theory of function
Privileges and Immunities can be discussed under two
heads:

a) Privileges and immunities of Diplomatic Mission

b) Privileges and Immunities of Diplomatic
Representatives
Priviledges and immunities of Diplomatic
Mission

i) Article 20
“The mission and its head shall have the right to
use the flag and symbol of the sending State on
the location of the mission, including the
residence of the head of the mission, and on his
means of transport”.
ii) Inviolability: a) persons; b) buildings; c) things.

Art. 22 “The buildings of the mission shall be

inviolable. The agents of the receiving State may
not enter them, except with the consent of the head
of the mission”.
Case: Sun Yat Sen Incident Case ;(China Vs.
U.K,1896)
Art. 24 “The archives and documents of the mission
shall be inviolable at any time and wherever they
may be”.
Case: Iran case; (U.S.A Vs. Iran,ICJ,1980)
Privileges and Immunities of Diplomatic
Representatives

i) Exemptions from taxes: Under International law the

diplomatic agents are immune from the payment of taxes, etc.
These immunities are incorporated in Articles 23, 34 and 36
of the Vienna Convention on the Diplomatic Relations, 1961.

ii)Exemption from seizure of goods :Art. 22 (3). The

premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be
immune from search, requisition, attachment or execution.
 
iii) Freedom of movement:
art. 26 the receiving State shall ensure to all
members of the mission freedom of movement and
travel in its territory”.
art. 27 “The receiving State shall permit and protect
free communication on the part of the mission for
all official purposes”.
inviolability
Iv) Inviolability: Art. 29 “The person of a diplomatic
agent shall be inviolable. He shall not be liable to any
form of arrest or detention. The receiving State shall
treat him with due respect and shall take all
appropriate steps to prevent any attack on his person,
freedom or dignity.
 Article 30
1.    The private residence of a diplomatic agent shall
enjoy the same inviolability and protection as the
building of the mission.
2.    His papers, correspondence and, his property, shall
likewise enjoy inviolability.
 v) Immunity: Immunity means exemption from any
judgment (tribunals of receiving state). Diplomat not
be subject to any form of arrest or detention.
We have four category of diplomatic immunity:
1) immunity from criminal jurisdiction:
2) immunity from civil and administrative jurisdiction.
3) Immunity from being presented as witness
4) Immunity frompolice rules
5) Immunity of diplomatic bag
Article 31

A diplomatic agent shall enjoy immunity from the criminal

jurisdiction of the receiving State.
Criminal immunity means full exemption from any criminal
judgment and act.
Article 31
He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
 (a)    a real action relating to private immovable
property situated in the territory of the receiving State,
except he holds it on behalf of the sending State for the
purposes of the mission;
 (b)    an action relating to succession in which the
diplomatic agent is involved as executor, administrator,
heir or legatee as a private person and not on behalf of
the sending State;
 (c)    an action relating to any professional or
commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.
 Immunity from being presented as witness-
Diplomatic agents enjoys the immunity from being
presented as a witness in the court. Article 31: (2)
But if any diplomatic agent himself waives this
immunity then he may personally present himself and
give evidence. In that case he will be deemed to be
within the jurisdiction of the court and it will be
deemed that he waived his immunity in this
connection.
Immunity from police rules- The diplomatic agents
are immune from the police rules of the states which
they are appointed. However, by courtesy and for the
sake of good relations with the receiving state, they
generally follow such rules.
 
Immunity of Diplomatic Bag

The diplomatic bag shall not be opened or detained.

The packages constituting the diplomatic bag must
bear visible external marks of their character and may
contain only diplomatic documents or articles intended
for official use.
The personal baggage of a diplomatic agent shall be exempt
from inspection, unless there are serious grounds for
presuming that it contains articles not covered by the
exemptions mentioned in paragraph 1 of this Article, or articles
the import or export of which is prohibited by the law or
controlled by the quarantine regulations of the receiving State.
Such inspection shall be conducted only in the presence of the
diplomatic agent or of his authorized representative
Dikko Incident, 1984
The Crying Suitcase Case, 1964
USSR Lorry Incident, 1984
 
 Waiver of Immunity
Immunity in relation to both
criminal and civil matters can be
waived, and local law will then
apply.
Waiver of immunity is done by the
sending State, not the individual
involved
Article 32 Vienna Convention (1961)
Only the most egregious criminal cases involving malicious conduct
seem to have resulted in revocations. In 1997, when Gueorgui
Makharadze, a diplomat from the country of Georgia, caused a crash
that killed a 16-year-old girl and injured four other people while he was
driving drunk in Washington, D.C., Georgian leaders initially claimed
immunity for Makharadze, who was the second-highest-ranking
diplomat in the embassy at the time. However, they later waived his
immunity, at the request of the United States, and allowed the U.S. to
prosecute Makharadze. He pleaded guilty to involuntary manslaughter
and aggravated assault and was sentenced to seven to 21 years in
prison. Makharadze served some of that time in the U.S. before being
returned to Georgia, where he served most of the sentence.
Immunity of Envoys Retinue- The members of
diplomatic envoys is also entitled to enjoy certain
privileges and immunities. The Retinue of envoys
consists of –
Officials and other servants of the delegation.
Wife, children and other members of his family living
with him under the same roof
His private servant
Courier