Diplomatic Agents and Immunities

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Introduction:

Diplomatic agents are the persons who are reside in foreign countries as representatives of the state by whom they are dispatched. They provide an important link between the country which dispatch them and the country to which they are accredited. They, therefore, perform the act of diplomacy which in International Law means the methods by which states establish or maintain mutual relations and carry out political and legal transactions. At present, the institution of diplomatic representatives has come to the principal machinery by which intercourse between the states is conducted.

Relevant Conventions:

  • Congress of Vienna, 1815
  • Vienna Convention on Diplomatic Relations, 1961.

Meaning of Diplomatic Agent:

A Diplomatic agent is the head of the mission or a member of the diplomatic staff of the mission.

Definition of Diplomatic Agent:

            Starke:

Diplomatic Agents are those persons who represent their respective state in another state by establishing office of Embassy having an establishment.

Classification of Diplomatic Agents

  1. Ambassador and Legates:-

Ambassador and legates are the diplomatic agents of first category. They are the representatives of the completely sovereign states. They are either appointed as ambassadors or permanent representatives of their respective countries in the United Nation. The Representatives appointed by Pope are called legalese.

  1. Ministers, Plenipotentiary and Envoys Extraordinary:

They are the diplomatic agent of 2nd category and enjoy less privileges and immunities.

  1. Minister Residents:

They are the diplomatic agents below the 2nd category and enjoy less privileges and immunities. This category was, however, subsequently dropped in the Vienna convention on Diplomatic Relations.

  1. Charged Affairs:

They are the diplomatic agent of last degree the reason for this is that they are not appointed by the Head of the state, but are appointed by the Foreign Minister of the state.

Functions of Diplomatic Agents

  1. Mediation and Negotiation.
  2. Observation.
  3. Protection of the rights and interests of citizens of their states.
  1. According to Article 03 of Vienna Convention:

  1. Representing the sending state in receiving state.
  2. Protecting in the receiving states the interest of sending state and of its nationals, within the limits prescribed by International Law.
  3. Negotiating with the government of receiving state.
  4. Ascertainment by all lawful means conditions and developments in the receiving state and reporting thereon to the government of sending state.
  5. Promoting friendly relations between the sending and receiving state.
  6. They have also to perform any special functions, which are allotted to them from time to time.

Immunities and Privileges of Diplomatic Agents

  1. Inviolability of person of Envoys:

Diplomatic Agents are inviolable and it is an established principle of international Law because he has got relaxation towards arrest, debts etc under international law.

  1. Immunity from local Jurisdiction:

Diplomatic agents enjoy immunity from the jurisdiction of the local Courts. The immunity extends to criminal Jurisdiction as well as to civil and administration Jurisdiction.

  1. From criminal Jurisdiction:

Diplomatic Agents enjoy immunities from Criminal Jurisdiction of courts of receiving state. However, it is generally believed that they will not violate the provision of the law of the state, where they are appointed. Diplomatic agents lose their immunities if they are involved in conspiracy against the state. In 1654, the French Ambassador in England de bass, conspires against the life of Cromwell, he was ordered to leave the country within 24 hours.

  1. Immunity from Civil Jurisdiction of Courts:

Suit for recovery of debts or breach of contracts cannot be filed against the diplomatic agents. However, there are certain exceptions to the above said principle;

  1. :Action relating to private Immovable Proper

A civil action relating to private immovable property situated in the territory of receiving state unless he holds it on behalf of sending state for the purpose of mission, he has to accomplish.

Action relating to succession:

An action relating to succession in which the diplomatic agent is involved as Executor, Administrator, legal Heir or legate, as a private person and not on behalf of sending state.

Action relating to Certain Activities:

An action relating to any professional or commercial activity executed by diplomatic agent in the receiving state outside his official functions.

Immunity from being presented as Witness.

Diplomatic agents are immune from being presented as witness in a Civil, Criminal or administrative courts of the state to which they are accredited, he is also immune from giving evidence before a committee sent to his house, however, they may appear before court after waiving the immunity.

Immunity regarding Residence:

The residence of diplomatic agent is considered as part of territory of the sending state. Such residences are regarded as inviolable. If a person is wanted by the police, the enforcing agency shall request for the arrest. Approval or disapproval of the request is purely at the discretion of the authorities concerned.

Immunity from paying Taxes, Dues etc:

They are also immune from payment of taxes.

Immunity from Police Rules:

They are also immune from the police rules of the states in which they are appointed. However, for courtesy and for the sake of good relations with the receiving states they generally follow such rules.

Right to Worship:

The diplomatic agents enjoy rights worship and no interference can be made in this respect. They are free to follow any religion or perform the religious rituals ceremonies etc, in their own way. They receiving state has nothing to do with it.

Rights to exercise control and jurisdiction over their officers and families. Right to travel freely in the Territory of the Receiving State.

Vienna convention on Diplomatic Relation, 1961.They have right to move freely in the territory & the receiving state subject to the condition that, they cannot go to the prohibited place or the place which are important from the point of view of the security of the receiving state.

Freedom of communication for official purpose.

They have freedom to communicate with their home state in connection with their home state in connection with their function and duties.

  1. Immunity from local and military obligation.

  2. Immunity from inspection of personal baggage. Article 36(2):

The personal baggage of a diplomatic agent shall be exempt from immunity useless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in para 1 of this Art or Articles of Import and export of which is prohibited by the law or controlled by quarantine regulations of the receiving state. State inspection shall be conducted in the presence of the diplomatic agents or in his authorized agents.

  1. Immunity from social security provision:

They shall with respect to services rendering for the sending state, be exempted from social security provision enforced by the receiving states.

Can Diplomatic agent waive or lose his immunity?

They are certain circumstances under which a diplomatic agent may lose his immunity

For Example,

  1. Suit against him: If a case is filed against a diplomatic agent, he is entitled to refuse to go to the court and simply send the message that he enjoys the immunity from the jurisdiction of the court. But if he presents himself before the court and allows the case to proceed, he may lose his immunity.
  2. If he files suit: Similarly, if a diplomatic agent files suit in a court, it will mean that he has waived his immunity and has accepted to be under the jurisdiction of court.
  3. As a witness: If a diplomatic agent presents himself as a witness, he may lose his immunity.

According to Article 32 of Vienna Convention waiver must always be express.

Termination of Diplomatic Mission:

Recall of envoy:

Such a step is taken only when relations between the states deteriorate and there are very rare chances of improvement.

  1. Notification in regard to the end of Envoy’s Function.

  2. On the Request of the receiving state.

This step is also taken where on account of some reasons the relations between the states gets stained.

  1. By delivery of passport:

If a diplomatic envoy is handed over to the passport it means that he has become an undesirable person in the receiving state and should go back to his country immediately. Such a step is taken only when either when relations have broken down between the two states or some very grave situation has arisen.

  1. Persona Non-Gratia:-

The receiving state is entitled to declare at any time that a diplomatic agent has become persona non-gratia i.e., undesirable person. This declaration terminates diplomatic relations immediately.

  1. End of the object of Mission:

When the object of the mission has been achieved.

  1. Expiration of letter of Credence:-

When a diplomatic agent has been appointed for a fixed period them his mission comes to an end after the expiration of that fixed period.

  1. Change in the post of diplomatic Mission.

  2. End of the Work of the Mission of the Mission by some Conference:

  3. By death:

Can a State Reuse to Accept a Diplomatic Agent:

  1. If the appointment of a particular person as diplomatic agent in a particular state is harmful for the receiving state.
  2. If the diplomatic agent has by his declaration or conduct done some inimical things.
  3. If he is the citizen of the receiving state.

Duties of Diplomatic Agent:

  1. To respect the laws of the receiving state.
  2. Not to interfere in internal affairs of receiving state.
  3. To conduct affairs through Ministry of Foreign affairs of receiving state.
  4. Not to use premises incompatible with function of the mission.
  5. Not to practice professional activity.

Consuls:

Consuls are representative of their state but they are not deemed to be diplomatic agent.

Classification of Consuls:

  1. Consul General.
  2. Vice Consuls.
  3. Consul’s agent.

Consuls are appointed by the head of the state and receiving state accept them by issuing a Letter of Permission namely exequatur.

Functions of Consuls:

  1. They protect commercial activities of their state.
  2. They supervise and look after the shipping of their county.
  3. They also perform certain other functions for the citizens of their states such as to testify signature, registration & marriage, birth, death etc.

 

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