Author: Ritika Gupta, a student at the Institute of Law Kurukshetra University Kurukshetra
*Introduction
Diplomatic Agents are officials appointed by a state to represent its interests and conduct diplomatic activities in foreign countries and international organizations. The diplomats engage in a range of duties like diplomatic negotiations, protecting their nation’s interests, promoting friendly relations etc. The agents act as a link between the country who dispatch them and from whom they are accredited.
*Definition of Diplomatic Agents
Diplomatic Agents are accredited representatives of a sovereign state that are sent to a foreign country to engage in official diplomatic activities.
In other words, Diplomatic Agents are the persons appointed by their own country to reside in foreign countries to act as the representative of the country by which they are dispatched.
*Historical development of law about Diplomatic Agents
The practice of sending and receiving diplomatic agents is followed since ancient times. In ancient times, they were sent from one area to another. During that time system of sending and receiving diplomatic agents was not uniform. Some customary practices and laws were made in 17th century that are mostly in terms of customary rules. The first great step was taken by Congress of Vienna of 1815, wherein the customary rules regarding diplomatic agents was clarified and codified. After 1815 also the institution of diplomacy continued to develop and after the establishment of the United Nations, the task of codifying law related to diplomatic agents was given to the International law commission. The General Assembly of the United Nations then convened a conference in 1916 and adopted the Vienna Convention on Diplomatic Relations (1961).
*Classification of Diplomatic Agents
According to the Vienna Convention on Diplomatic Relations (1916)Article 14 divides diplomatic agents into three categories which are as follows:
• Ambassadors or Nuncios accredited to Heads of States :They are considered as the highest ranking diplomatic agents. They usually live in the capital of the host country. They gave a sealed letter of credence given to them by the head of sending state to the receiving state.
• Envoys, Ministers and Internuncios
accredited to Heads of States :They are the senior diplomats below the rank of the ambassadors. They have less privileges then the ambassadors.
• Charge d’ affairs accredited to Ministers of foreign Affairs :They are accredited by foreign office of to foreign office of the host country not by the head of the state. They present letter of credence to the minster of foreign affairs.
ARTICLE 14(2) of Vienna Convention 1961 further provides that apart from precedence and etiquette there is hardly any difference between diplomatic agents of the above categories.
*Functions of Diplomatic Agents
Article 3(1)of the Vienna Convention on Diplomatic Relations lays down various functions of Diplomatic Agents that are explained as :
•Representation: The most important function the diplomatic agents is to represent the beliefs, ideas, policies and interests of the state by which they are dispatched to the State they are accredited. They act as a link between the home country and the host country.
•Protection of Nationals: Diplomatic agents protect the nationals of the home country who resides or visits in the host country. They also provide assistance to them in need.
•Negotiation:They also engage in the negotiations and discussions with the country to which they are accredited. They discuss on various fields like trade, culture and politics. They also engage in negotiations to resolve disputes and to maintain friendly relations between the countries.
•Reporting and Information Gathering: Diplomatic agents also collect information from the host country about social, economic, political conditions and sends reports to the State by which they are accredited.
•Promotion of Friendly Relations:They also maintain friendly relations like social, economic, cultural relations between the home country and the host country by cultural exchanges, economic collaboration and other activities.
*Basis of Diplomatic Immunities and Privileges
International Jurists have given different views as to the basis for giving privileges to the diplomatic agents which leads to the emergence of three theories which are mentioned below:
•Extra – Territorial theory : According to this theory the diplomatic agents are considered under the territorial jurisdiction of the sending state and not in the jurisdiction of the state to which they are accredited. This means that though they are present in the foreign country, they are under the home country jurisdiction. This theory is also known as fictional theory.
•Representational theory:According to this theory, the diplomats are considered as the personal representatives of the sending state, therefore they are given the same privileges which are given to the head of the sending state.
•Functional theory:This theory states that the diplomats are given privileges because of the nature of their work. They are given immunities from legal and other limitations of the State to which they are accredited to effectively perform the tasks given to them.
*Privileges and Immunities of the Diplomats
Vienna Convention on Diplomatic Relations (1961) provides various rights and privileges to the diplomatic agents which are as follows:
•Inviolability of persons of Envoys:Diplomatic agents or envoys are inviolable is a principle which is well recognized in international law. Article 29 of Vienna Convention provides that diplomats cannot be arrested or detained. It also provides that host country shall treat them with respect and care and also take steps to prevent attack on the diplomat agent, freedom and dignity. But it does not mean that they are given absolute immunity, in some exceptional cases they can arrest or detain them.
•Immunity from Criminal Jurisdiction:The diplomats are immune from criminal Jurisdiction of the court of the states in which they are accredited. If any suit is filed against them in court of law, it is important for the agent to inform in the court that he has immunity. It is also important to note that if the Diplomat presents himself in the court without any force then it deemed that he waive his immunity. In such case he will be deemed in the jurisdiction.
•Immunity from Civil Jurisdiction:According to Article 31,the diplomats are also immune from the civil and administrative jurisdiction. Diplomatic agents not only enjoy civil immunity in the state which they are appointed, also in the states through which they pass to join their office.
There are three exceptions to where this immunity does not work:
•In the case of private immovable property situated in the receiving state.
•In the action related to succession in which diplomats acts as a private person and not on the behalf of the sending state.
•Trade or business transactions which are not in preview of Diplomatic agents functions.
•Immunity from taxes :Article 34 of Vienna Convention lays down that “Diplomatic agents shall be exempted from all dues and taxes, personal or real, national, municipal or regional”. Before the convention also this immunity is available. However, the rules were not applied precisely.
•Right to worship:Article 3(1) of the Vienna Convention on Diplomatic Relations provides right to worship. They have right to follow any religion or perform religious rituals and ceremonies in their own way.
•Immunity from inspection of personal baggage:Article 36(2)of the Vienna Convention provides that personal baggage of diplomatic agents is exempted from inspection unless there are some serious grounds like when it is presumed that contains articles prohibited by law. It also provides that inspection shall be conducted only in the presence of the diplomatic agent or his agent.
•Freedom of Communication: Diplomatic agents are free to communicate any information regarding their functions and duties with their home State. Article 27 of the Vienna Convention also provides that they have freedom to send code messages and couriers.
•Inviolability of premises:Article 21 of Vienna Convention provides that receiving state must help home state to obtain premises for mission.
According to Article 20, the sending state has right to use its flag and emblem on premises. Article 22 stipulates the customary rule of international law that the premises of mission shall be inviolable. Article 30 also provides that “private residence of the diplomatic agents also enjoy inviolability”. The agents police officers and other officers of the receiving state are not allowed to enter into the premises without consent of the head of mission.It has also some exceptions also.
•Right to move and travel freely :According to Article 26 of the Vienna Convention, diplomatic agents can move and travel freely in the territory of the receiving States. However, this is subject to the condition that they cannot go to the prohibited places.
•Immunity from being a witness: Diplomatic agents are completely immune from being a witness in any court of the receiving State. It is given in Article 31(2). This right may be waived if the diplomatic agent presents himself in court without any force.
There are many other immunities and privileges available to the diplomatic agents like immunity from police rules, immunity from local and military obligations, Immunities from social security provisions, immunity regarding residence etc.
*Duties of Diplomatic Agents
Diplomatic Agents are bound by some duties which are mentioned below:
•They have duty to respect laws and regulations of the state to which they are accredited.
•They also have duty to not interfere in the internal affairs of the receiving state.
•They are also bound to not use the premises of diplomatic mission for any unofficial work.
•They are also bound to not practice any commercial activities or professional activities.
•The official work of diplomacy must be conducted through the Ministers of Foreign Affairs of the receiving state or such other ministry provided.
*Persona Non Grata
Article 9 of the Vienna Convention on Diplomatic Relations provides that receiving state has right to declare any person ‘persona non grata ‘if he /she violates immunities provided to them. The sending state can recall the person or terminate his authority. If sending state does not obey then receiving state can refuse to recognize that person as diplomatic agent.
How to become diplomatic agent in India?
In India, Union Public Service Commission (UPSC) conducts Civil Services Examination. The person who want to become diplomatic agent need to pass this exam to get required rank for IFS (Indian Foreign Services)officer. IFS is a central service who handles all the external affairs.
*Case Laws
• (Bergman V. De Sieyes)
In this case, the French minister for Bolivia who was respondent was going from France to Bolivia and was passing through New York, the plaintiff started civil proceedings against him. The defendant argued that being a diplomatic agent, he was immune from the civil jurisdiction. The court accepted the argument of the defendant and rejected the suit filed by the plaintiff.
•United States V. Iran (1980) – The Hostages Case
This case arose out in hostage crisis. In this case,52 American diplomats and citizens were held hostage by Iranian militants. The International Court of Justice ruled that Iran violated International Law by not protecting the US Embassy and its staff in Tehran. The case highlighted the principle that diplomatic agents should be protected even in the times of political upheaval.
*Conclusion
Diplomatic Agents play a crucial role in promoting and maintaining international relations, cooperation between the states. The immunities granted to them under the international law help them to perform their functions and duties without any interference. The immunities provided to them are not absolute, they are compromised with certain exceptions. It ensures that Diplomatic channels remain effective always.
*References
•https://www.legalserviceindia.com
•International Law & Human Rights book (Dr. S.K. Kapoor, 2021)22nd Edition
Frequently Asked Questions
1. Who are diplomatic agents?
Diplomatic Agents are the officials who represent their country in a foreign countries. Their main role is to manage and promote diplomatic relations between the home country and the host country
2. What are the immunities of the diplomatic agents?
They enjoy many immunities like immunity from civil, criminal, local Jurisdiction, freedom to travel freely in the host country, right to worship, exemption from taxes, freedom of communication etc.
3. What happens if diplomatic agent commits a crime in the host country?
If a diplomatic agent commits crime, then host country can ask the home country to waive his immunity. If home country did not waive, then the host country can declare the agent persona non grata and can also ban from the country.
4. Can diplomatic Immunity be waived?
Yes, it can be waived by the home country if the person has done something wrongful and also can be waived by the diplomatic agent. Eg; If diplomatic agent presents himself in criminal proceedings against him without any force, then it is deemed that he waived the immunity.
5. What is Vienna Convention on Diplomatic Relations?
It is an international treaty of 1961 that provides a framework about the diplomatic relations between the sovereign countries. It lays down privileges of diplomats, so that they can perform their duties with any interference.
