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JAMIA MILLIA ISLAMIA

TERMINATION AND EXCEPTION TO DIPLOMATIC


IMMUNITIES

Vishwajeet Singh

B.A. LL.B. (Hons.) (Regular)

Roll No. 63
Introduction- Diplomacy is not a new concept in this world. Evidence of diplomacy can be
seen even in ancient time when one person was designated as ambassador was sent to another
kingdom from one kingdom. This exchange of ambassador had many benefits, through this one
country was connected to others and many businesses were taking place between them. Thus,
these ambassadors were important. It is also a fact that one might not be safe in another country
or might take as hostage, but the same case was not with the ambassadors, it was the moral
duty of the state to protect these people against any harm to them. From ancient world practices
it is evident that diplomats were there at time appointed by king for respective state to deal wit
another country with certain immunity. 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. The concept of immunity began with ancient tribes. In order to exchange
information, messengers were allowed to travel from tribe to tribe without fear of harm. They
were protected even when they brought bad news. Today, immunity protects the channels of
diplomatic communication by exempting diplomats from local jurisdiction so that they can
perform their duties with freedom, independence, and security. Diplomatic immunity is not
meant to benefit individuals personally; it is meant to ensure that foreign officials can do their
jobs. Under the concept of reciprocity, diplomats assigned to any country in the world benefit
equally from diplomatic immunity. Though the concept diplomatic immunity developed much
later in mid centuries. Hugo Grotius propounded that diplomatic immunity was based on the
“sacredness of ambassadors”.1 He was of the view that causing harm to diplomats would be
unjust and impious. Grotius cited various sacred texts to prove his theory. Further, Hugo
Grotius also put forth the theory of “extraterritoriality”. This theory provides that, even when
a diplomat is physically located in another state, for all purposes he should be treated as though
he were residing in his home nation. Another theory on diplomatic relations is that the diplomat
is the personification of the sovereign. The theory of personification of the sovereign has now
evolved into the functional necessity theory, which posits that diplomatic immunity must be
accorded to a diplomat to facilitate him/her to effectively serve his purpose.one of the main act
regarding the better treatment of diplomat was English Diplomatic privileges act ,1708 which
was also known as act of Anne which prevented ambassadors from other states from arrests
and civil suits.2 These acts were somehow could not do justice to their objectives and need of

1
http://www.publicinternationallaw.in/node/118
2
http://www.ediplomat.com/nd/diplomatic_immunity.htm
a universal declaration for diplomatic relations was felt. As a result, Vienna convention on
diplomatic relation came into effect on 18 April 1961. Articles 20 to 41 of the Vienna
convention provide certain rights and immunities to diplomats with the primary objective to
ensure the efficient performance of the functions of the diplomatic mission.

Diplomatic immunities and privileges (termination and exception to it)

there are various types of diplomatic immunities one of the main immunities is immunity from
civil and criminal jurisdiction. Under these immunities a diplomatic can not be tried in local
court of receiving state. The basic object behind these immunities was to prevent the diplomats
from being harassed by the local court, and diplomats are not bound to give evidence in court
of law though diplomats can do so on their own if they wish. Basis for these immunities can be
traced in three theories, extra territorial theory, representational theory and functional theory.
Vienna convention of 1961 lays down different immunities and privileges which are available
to diplomat agents. The principle inviolability of diplomat agents suggest that diplomat agents
are inviolable. One important article regarding the immunities was article 29 of Vienna
convention which lays down that diplomat agents 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. 3 Government of receiving state
itself is under an obligation to abstain from any conduct which may be injurious to the
diplomatic agents, and also to prevent others from committing any act which might be harmful
for diplomats. Immunities which are not just available to diplomat agents but it also available
to their family as well staffs. Under article 22 of the Vienna convention diplomatic need
permission to operate and premises of diplomat shall be inviolable and article 30 of the
convention provides that private residence of diplomat agents shall also be inviolable.4under
article 34 of the Vienna convention diplomatic agents shall be exempted from all dues and
taxes, personal or real, national regional or municipal.5 So one question which arises is that if
there is so much of privileges and immunities to the diplomats then it would be obvious that
they might act in a way which would cause problems to receiving state and therefore there are
certain exception to these privileges and immunities in order to check on the activity of

3
Dr. H.O. AGARWAL INTERNATIONAL LAW AND HUMAN RIGHTS 21ST EDITION PG.304
4
http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961
5
http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961
diplomat agents. receiving state may arrest or detain the diplomatic agents in exceptional cases.
a drunken diplomat with a loaded gun in a public place may be arrested, he cannot take benefit
of exception in this case. If a diplomat agent commits an act which might disturb the internal
security of receiving nation then restraint would put on him in order to avoid any harm, in these
cases he may be arrested for the time being, although he must in due time be safely sent home.
One of them the immunity which is available to them from civil and administrative jurisdiction
do not extend for the act which are private in nature or not in course of business, for these acts
a diplomat can not take plea of immunities provided under Geneva convention. Another
immunity which are available to diplomats from taxes and customs duties do not extend to
private immovable property situated in receiving state such as house tax, electricity bills are
required to pay. Another exception to their immunity is personal bags and luggage of diplomats
can be check if there is serious ground for suspecting that article is not for official use.

Termination of diplomatic mission- The mission of a diplomatic agent comes to an end


in many ways and under varying circumstances. In the normal course of diplomatic service an
envoy is posted in a particular capital for a certain length of time after which he is transferred
to another post or to his own Foreign Office, he is promoted to a higher position, and he retires
upon superannuation or on termination of his contract of service. Each of such changes brings
to an end the particular mission which the diplomat had been fulfilling at that time. In the case
of a diplomatic agent other than the head of a mission, the termination takes place simply upon
his relinquishment of his post on transfer or retirement and upon notification thereof to the
Foreign Office of the receiving state.6 Where it concerns the head of a mission, the method is
much more formal. Just as his mission commences with the presentation of his Letters of
Credence, it is terminated only when the formal Letters of Recall are received from the sending
state; and until such Letters are presented to the government of the receiving state the new·
head of the mission cannot take up his functions. The formality of presenting a Letter of Recall
is, however, not necessary in the case of an interim head of mission, as his term of office
automatically comes to an end when the permanent incumbent returns or a new head of mission
is appointed.7 It is customary for the head of a mission to seek a farewell audience with the
head of the receiving state before he leaves his post on the relinquishment of his mission. The

6
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/9-diplomatic-and-consular-law
7
https://heinonline.org/HOL/LandingPage?handle=hein.journals/byrint25&div=13&id=&page=
audience is generally in private. It is possible to present the Letters of Recall at the audience
but it is not obligatory to do so; in fact, it is quite common for the Letters of Recall to be
received after the envoy had departed from his post. It is generally known in advance as to
when a head of mission is likely to relinquish his post either by the official announcement of
his next appointment or the announcement of the name of his successor. It is customary for the
retiring head of mission to pay farewell calls on his colleagues and the officials of the Foreign
Office. He is usually entertained at a formal banquet or dinner by the head of the Foreign
Ministry or an appropriate official of the receiving state. On such occasions it is customary for
the host to make a short speech, and the retiring diplomat is expected to respond to the toast.
Normal courtesy requires that the retiring diplomat should adopt a cordial attitude on such an
occasion irrespective of the success or failure of his mission. It is to be expected that in the
complexities of international relations of modern times a diplomat may come across many
difficulties in the fulfilment of his mission. It is, however, wise not to allude to such matters in
the course of a farewell speech. By doing so he does not in any way advance his cause, but on
the other hand he may create impediments for his successor. This does not mean that "plain
speaking" should not be resorted to by a diplomat. Undoubtedly, he has a right and it may be
his duty to do so on occasions; but the farewell banquet given in his honour is neither the time
nor the occasion for it. It is not, however, in every case that the fact of the termination of his
mission is officially known at the time of or prior to his departure. In certain instances, his
transfer may not be officially notified, and in others the diplomat may not know of it himself
since he may be proceeding on leave and his transfer may take effect whilst he is on leave. In
such cases it is not advisable for a diplomat to give out that he will not be returning, though
there is nothing wrong for him to ask for an audience with the head of the receiving state before
he proceeds on leave.8

Conclusion- there are many examples where diplomats were sent to their original country on
charge of is behaviours or criminal conspiracy. Many incidents have been reported between
India and Pakistan where diplomats of either countries were sent their original country on
certain allegations. There is a case when Mansoor Ali s/o Senegal’s ambassador to India killed
his driver in New Delhi. Police registered a case against him under section 204 of IPC but he
was not arrested, it was discovered that he was covered by diplomatic immunity.

8
https://link.springer.com/chapter/10.1007%2F978-94-011-8792-3_7
Another incident was in 1584 when the Spanish ambassador in England named Mendoza
plotted to depose Queen Elizabeth, he was ordered to leave the country.

Another incident is when a Pakistani high commission official Mohammed Ashfaq was
declared persona non grata for allegedly accepting some paper from a junior personal of Indian
army. In January 2000, Pakistan expelled an Indian High Commission staff member in
Islamabad for indulging in terrorist activities.

So, from the above incidents, it can be inferred that there are number of privileges and
immunities available to diplomats but they are covered by certain exception which is necessary
to deal with their duty as without exceptions they will hold some power which will create
problem for the receiving states.
References

1.Dr. H.O. Agarwal International Law and human rights 17th edition.

2.Dr. H.O. Agarwal International law and human rights 3rd edition.

3.https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/9-diplomatic-
and-consular-law

4. https://link.springer.com/chapter/10.1007%2F978-94-011-8792-3_7

5.https://heinonline.org/HOL/LandingPage?handle=hein.journals/byrint

6. http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961

7. http://www.ediplomat.com/nd/diplomatic_immunity.htm

8. http://www.publicinternationallaw.in/node/118