Dr. M.L Kalicharan, ‘Diplomatic Immunity-An Indian perspective’
Diplomatic Immunity-An Indian perspective
Dr. M.L Kalicharan*
Introduction
Throughout history, Governments have recognised and applied the international law of
diplomatic immunity to diplomats in their country and have sought reciprocal treatment for their
own agents in foreign nations. The primary reason for this recognition was stated by the 1906 US
Secretary of State Elihu Root “There are many and various reasons why diplomatic agents
should be exempt from the operation of the municipal law at this country. The first and
fundamental reason is that diplomatic officers are universally exempt by well recognized usage
incorporated into the Common Law of nations. The reason of the immunity is clear, namely: that
Government may not be hampered in their foreign relations by the arrest or forcible prevention
of the exercise of duty in the person of a governmental agent or representative. If such agent is
offensive and his conduct is unacceptable it is proper to request his recall; if the request be not
honored he may be escorted to the boundary and thus removed from the country.”1
The question of whether diplomats should be fully immune from criminal prosecution, no matter
what the alleged crime, is not new. As a matter of international and domestic law, the source of
the immunity and its extent is quite clear. But with each new offence that occurs, the public
debate over diplomatic immunity rears its head again. The world of sovereign nations requires
almost complete respect and there needs to be a strict distinction between municipal and
international affairs. With regard to municipal affairs the rule of law and constitutionalism
prevail, while under international affairs the equality of sovereign states is paramount. The rule
that the State controls the international protection of individuals is often confirmed by municipal
law by granting of diplomatic immunity.
Philosophy of Immunity
Immunity is an exemption from the force of law specifically from the exercise of power. It is a
subset of the rights that one has and another person cannot exercise power to change the existing
*
M.B.A, M.F.T, LL.M, Ph.D. (Law),Assistant Professor, School of Law, Christ University, Bangalore, Karnataka, India
Barnes, ‘Diplomatic Immunity from Local Jurisdiction: Its Historical Development under International Law and Application in United States
Practice’, Department State Bulletin, 1960, p.177.
1
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rights. Its opposite is disability. A diplomat has diplomatic immunity that allows him not to be
charged and tried in the courts of a foreign country in which he enjoys diplomatic status. Thus,
the ambassador of country C in Australia who causes an accident by reckless driving in Sydney
may successfully invoke his diplomatic immunity when charged for the offence in an Australian
court. To liken it to an example: a person who donates a part of this income to a charity may
claim an exemption (immunity) from income tax on that part of the salary. The right to remain
silent is an immunity enjoyed by an accused person that prevents the police or the prosecution
from forcing the accused to give evidence against him. Hohfeld regarded immunity in a more
expansive way. According to him, every disability of a person under the law creates immunity.
These concepts are duty, claim, liberty, no-claim, power, liability, disability, and immunity.2
Hohfeld explained how these concepts logically related to one another through what he called
“correlation” and “opposition.” These concepts and the analytical framework arising from them
are best explained using hypothetical examples.
Immunities and Disabilities
The holder of immunity is not exposed to the exercise of power within the domain covered by
the immunity. In that domain, everyone vis-a-vis whom the immunity obtains is disabled from
changing the immunity holder's entitlements.
Hohfeld’s system is based on definitions of the fundamental elements which are themselves
based on three concepts: claim, control, and freedom. Specifically, a right is one person’s
affirmative claim against another person to have that other person do something or not do
something, and a privilege is one person’s freedom from the right of another person. As a result,
to the extent that a privilege negates a right, the person that would otherwise have the right has a
no-right and the person who has the privilege does not have a duty. However, to the extent that a
privilege does not negate a right, the person that has the privilege still has a duty. Likewise, a
power is one person’s affirmative control over creating or ending or maintaining a legal relation
as against another person, and immunity is one person’s freedom from the power of another
person. As a result, to the extent that immunity negates a power, the person that would otherwise
have the power has a disability and the person that has the immunity does not have a liability.
2
Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence From Bentham to Hohfeld, WIS. L. REV. 975, 1982, p.22.
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However, to the extent that immunity does not negate a power, the person that has the immunity
still has a liability.3
Immunities and Disabilities as already brought out are opposites. Immunity is the correlative of
disability (“no-power”), and the opposite, or negation, of liability. Perhaps it will also be plain,
from the preliminary outline and from the discussion down to this point, that power bears the
same general contrast to an immunity that a right does to a privilege. A right is one’s affirmative
claim against another, and a privilege is one’s freedom from the right or claim of another.
Similarly, a power is one’s affirmative “control” over a given legal relation as against another;
whereas immunity is one’s freedom from the legal power or “control” of another as regards some
legal relation.
For example, X, a landowner, has the power to alienate Y or any other ordinary party. On the
other hand, X has also various immunities as against Y, and all other ordinary parties. For Y is
under a disability (i.e., has no power) so far as shifting the legal interest either to himself or to a
third party is concerned; and what is true of Y applies similarly to everyone else who has not by
virtue of special operative facts acquired a power to alienate X’s property. If, indeed, a sheriff
has been duly empowered by a writ of execution to sell X’s interest, that is a very different
matter: correlative to such sheriff’s power would be the liability of X, the very opposite of
immunity (or exemption). It is elementary, too, that as against the sheriff, X might be immune or
exempt in relation to sell a given piece of property, then, as to the latter, X has, in relation to
such agent, a liability rather than an immunity.4
Immunity and Disability: The Relationship
Immunity denotes freedom from the power of another, which disability denotes the absence of
power. In Hurst v. Picture Theatres Ltd (1915) 1 KB 1 it was held that where a liberty to be on
premises is coupled with and ‘interest’, this confers immunity along with the liberty, which
cannot therefore the revoked.
3
4
A. Corbin, “Jural Relations and Their Classification,” Yale Law Journal, (1920-21), p. 30.
W. Hohfeld, Some fundamental legal conceptions as applied in judicial reasoning, Yale Law Journal, (1913), p.28–59.
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The relationship between power, liability, immunity and disability may be explained as follows:
(1) If X has a power, Y has a liability. They are therefore ‘jural correlatives’. A liability in Y
means the absence of immunity in him. Therefore, immunity and liability are ‘jural
opposites’ (more strictly, ‘jural negations’, as previously explained).
(2) Conversely, the presence of immunity in Y implies the absence of a liability in him. The
absence of a liability in Y implies the absence of a power in X. Therefore, an immunity
in Y implies the absence of a power in X, i.e. power and immunity are ‘jural
contradictories’,
(3) The absence of power could have been styled ‘no-power’, in the same way as no claim,
but Hohfeld preferred to give it the term disability. Power and disability thus become
‘jural opposites’ (‘negations’). It follows from this that immunity in Y implies the
presence of a disability in X, i.e. they are ‘jural correlatives’.5
Theories of Diplomatic Immunities
The providing of immunity and privileges to diplomats is as old as the birth of civilization, there
has been lot of debate over of immunity and privileges that are granted to diplomat in this
modern era. The present international law on diplomatic relations has been concluded, basing
the customary practices of international law on diplomat’s relations which existed in the past.
The reasons for grating special status to diplomats are:

It is traditional;

It helps diplomats to carry out their functions satisfactorily, free from legal, physical or
moral pressures. (Functional Theory)

It is based on the principles that diplomats are personal representatives of their heads of
state and also, in effect if not in form, of governments and hence of the people of their
own countries.6(Representative Theory)
Since the 16th century there have been three major theories of diplomatic immunity. Each theory
plays a prominent role during different periods in history. These theories are: (a)
extraterritoriality (b) personal representation, (c) functional necessity.
5
6
C. Krogh, “The Rights of Agents,” in Intelligent Agents II: Agent Theories, Architectures, and Languages, Springer-Verlag, 1996, pp. 1–16.
Palmer and Perkins, International Relations (3rd (Ed), Scientific Book Agency, Calcutta), p.90
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Extraterritoriality
Diplomatic immunity is based on the doctrine of an objective and fictitious extraterritoriality.
The diplomatic agent "is not supposed even to live within the territory of the sovereign to whom
he is accredited; and if he has done nothing to forfeit or to waive his privilege, he is for all
judicial purposes supposed still to be in his own country."7 This theory was of limited
applicability in the early centuries after the establishment of resident embassies in the 15th
Century. It derived from imperfect notions of personal and territorial jurisdiction. During this
time there was a great emphasis over the supremacy of national law on everyone in the territorial
state, irrespective of their nationality. In order to try and avoid this being imposed on diplomats,
the theory of extraterritoriality was developed. This is based on the Roman law principle
whereby a man took his own land’s law with him when he went to another land. The crux of this
theory is that the offices and homes of diplomats and even their persons were to be treated,
throughout their stay, as though they were on the territory of the sending State and not that of the
receiving State. The irony of this theory is that a diplomat would not necessarily be immune for
the same illegal conduct in the sending State, but could not be prosecuted for it.
Further, ambassadors were seen in two ways, (a) as a personification of those who sent them, and
(b) they were held to be outside the limits of the receiving State. 8 This is based upon the fiction
that an ambassador, residing in the accredited State, should be treated for purpose of jurisdiction
as he was not present. Extraterritoriality is a fiction which has no foundation either in law or in
fact, and no effort of legal construction will ever succeed in proving that the person and the
legation buildings of a diplomatic agent situated in the capital of State X are on territory which is
foreign from the point of view of the State in question. The fiction that the diplomatists dwelling
was part of the territory of his own country and that he carried with him its law. Diplomatists
could not be governed by the same laws as the people among whom they dwelt and by long
custom, ante-dating perhaps all other rules of international laws.
Authors like Emmerich de Vattel (1758) and James Lorimer (1883) emphasised that an
ambassador’s house and person are not domiciled in the receiving State, but in the sending State.
7
8
John H. Latane, ‘International Law and Diplomacy’, (The American Political Science Review, Vol. 1, No. 1), Nov., 1906, p.11
A. Corbin, “Jural Relations and Their Classification,” Yale Law Journal, (1920-21), pp. 40-43
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An example where this theory played a role is in 1987 concerning the security level of embassies
in Moscow: the US Secretary of State said at a press conference that the Soviets “invaded” the
sovereign territory of the US embassy. Another example is with reference to political asylum in
embassies: Cardinal Mindzenty was given asylum in the American embassy in Budapest. No
authority may force entry into an embassy or compel an embassy to remove a person given
asylum. What can be gathered from this is that asylum in an embassy was and is realised through
the concept of extraterritoriality. The decline of this theory can be seen, according to
McClanahan, as a result of academic groups abandoning the theory in order to draft codifications
for international law.9 Other reasons stem from the vagueness of the term “exterritoriality”
leading to incoherent and politically motivated interpretations. For instance, the term is
persistently used to describe not only the mission, but all types of immunities and privileges
enjoyed by the personnel, which seems contrary to the original understanding of the term. The
courts also found extraterritoriality conceptually difficult when finding that the actions of a
diplomat were committed on the receiving State’s soil rather than domestic soil.
This artificial justification of legal rules based on customary international law was replaced by
the direct reference to this source of law, and it was held on those grounds that "diplomatic
privilege does not import immunity from legal liability, but only exemption from local
jurisdiction."10 Formally, the notion of extraterritoriality was frequently invoked to explain an
envoy’s position. Extraterritoriality is however, a fiction only, for diplomatic envoy’s are in
reality with the territories of the receiving state. Further in Afghan Embassy Case,11 the Supreme
Court of Germany declined to accept the plea of the accused, who had murdered the Afghan
minister of the premises of the Afghan Legation, that German courts had no jurisdiction on the
ground that the act was committed outside German Territory. The theory of extraterritoriality
does not hold well under the present international law. The secretary serving with the British
embassy in Washington was injured by a letter bomb; her claim for compensation is the UK was
disallowed because her injury was not sustained in the UK since an embassy abroad is not British
Territory. Modern Public International Law rejects the theory of extraterritoriality and courts
have been in against the theory of extraterritoriality of diplomat’s missionaries in strict sense.
9
G V McClanahan, Diplomatic Immunity: Principles, Practices, Problems, (Hurst: London), 1989, pp.30-31.
Dickinson v. Del Solar (I930) I K.B. 376, at p. 380. http://www.uk/k.b/dikinson (accessed on 30th June 2009 )
11
AD, 7 (1933-34), http://www.supreme/court/germany/embassycase (accessed on 30th may 2009 )
10
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In Radwan v Radwan, Mr. Justice Cumming-Bruce observed that there was consensus that there
was no valid foundation for the alleged rule that diplomatic premises were to be regarded as
outside the territory of the receiving state. Fawcett has observed that “The premises of a mission
are inviolable and the local authorities may enter them only with the consent of the head of the
mission. But this does not make the premises foreign territory or take them out of the reach of
local law for many purposes. It was significant that neither Article 31 of Convention 1961 stated
that the premises of a mission were part of the sending state and if that had been the view of
contracting parties, it would no doubt have been formulated.” 12
Representative Theory:
This theory is based on the idea that the diplomatic mission personified the sending state. The
theory has deepest and earliest origin. The theory gained widespread recognition during the
Renaissance period when diplomacy was dynastically oriented. These representatives received
special treatment. When the receiving State honoured them their ruler was pleased and
unnecessary conflict was avoided. The representative was treated as though the sovereign of that
country was conducting the negotiations, making alliances or refusing requests. The great
theorists of the 16th and 17th century like Grotius, Van Bynkershoek, Wicquefort and Vattel
supported and encouraged the use of this theory. Montesquieu describes representation as “the
voice of the prince who sends them, and this voice ought to be free, no obstacle should hinder the
execution of their office: they may frequently offend, because they speak for a man entirely
independent; they might be wrongfully accused, if they were liable to be punished for crimes; if
they could be arrested for debts, these might be forged.”13
The Supreme Court of America in Agostini v De Antueno, held that diplomats are representatives
of his master. The Diplomatic privileges and immunities are based upon the representative’s
character of the diplomat. It equates the immunities of the agents with those of the sending State
itself. The Chief Justice of the Supreme Court of Canada stated that “immunity is established on
the principle that a minister is considered to be in place of the sovereign he represents, and on
that basis it is impliedly granted by the nation to which he is accredited. It is impossible to
12
Dick Richardson, Decision and Diplomacy, (1st (Ed), Routledge, New York), 1995, p. 22
F. Przetacznik, ‘The History of the Jurisdictional Immunity of the Diplomatic agents in English Law’, Anglo-American Law Review, 1978, p.
355
13
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conceive that the prince who sends an ambassador or any other minister can have any intention
of subjecting him to the authority of a foreign power.”14 A foreign sovereign committing the
interest of his nation with a foreign power to care of on a person whom he has selected for that
purpose cannot be presumed to have intended to subject his minister in any degree to that power,
and therefore, a consent to receive him, implies a consent that he shall posses those privileges
which his principal intended he should retain.
Marshall C.J in United States of America in Exchange v MacFaddon15 observed that “A
sovereign committing the interests of his own nation with a foreign power to care of a person
whom he has selected for the purpose cannot intent subject his minister in any degree to that
power; and therefore, a consent to receive him implies a consent that he shall possess those
privileges which his principal intended he should retain, the privileges which are essential for
the dignity of his sovereign , and to the duties he is bound to perform”. Whatever the theoretical
basis for the grant of diplomatic immunities may be, it is nonetheless clear that they are essential
for the performance of diplomatic obligation. The necessary pre-request of such relation is that
the minister must be able to carry on his duties, whether they consists in looking after the country
or of his co-nations resident in their foreign country, unfettered by any local interference.
If applied in modern times this theory would be less appropriate, in that it was based mainly on
monarchies and not on sovereign States. This is an interesting concept, since a president of a
sovereign State could be seen as having the same functions and stature as a monarch. Ross
discredits this theory on three grounds. First, the foreign envoys cannot have the same degree of
immunity as the ruler or sovereign.16 Second, the decline of the monarchs and the progression of
majority vote make it unclear who the diplomat represents. Last, the immunity does not extend
from the consequences of the representatives’ private actions. Wright further criticizes the
theory by placing the diplomat above the law of the receiving sovereign, which is opposite to the
principle that all sovereigns are equal.17 Yet despite its declining popularity, the theory is still
14
Sen.B, International Law Relating to Diplomatic Practice, (1st (Ed), Metropolitan Book Company Ltd., Delhi), 1950, p.35
L Preuss, ‘Capacity for Legation and Theoretical Basis of Diplomatic Immunities’, New York International Law Quarterly Review, (19321933), p. 170
15
M S Ross, ‘Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and
Immunities’, American University Journal of International Law & Policy, 1989, pp. 177-178.
17
S L Wright, ‘Diplomatic Immunity: A Proposal for Amending the Vienna Convention to Deter Violent Criminal Acts’, Boston University
International Law Journal, 1987, p. 197.
16
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used, albeit infrequently. For example, in 1946, a federal court in New York granted diplomat
immunity from service of process under this theory. This theory of representation is inadequate
as it explains only those exemption concerning official acts which diplomatic agents enjoy in
common with other State officials, but leaves unexplained those immunities which they posses
with reference to acts performed in a private capacity.
Functional Theory
The Functional theory is more dynamic and adaptable than the other two theories and has gained
acceptance since the 16th Century to modern practice. The rationale behind a need for a
diplomat’s privilege and immunities is that it is necessary for him to perform his diplomatic
function. Diplomats need to be able to move freely and not be obstructed by the receiving State.
They must be able to observe and report with confidence in the receiving State without the fear
of being reprimanded. Grotius’ dictum omnis coactio abesse a legato debet (“all force away
from embassy that owes”) stresses that an ambassador must be free from all coercion in order to
fulfill his duties.18 Although Grotius, Van Bynkershoek and Wicquefort regarded it as necessary
to protect the function of the mission, they felt that it was not the primary juridical basis of the
law. It was Vattel who placed the greatest emphasis on the theory in order for ambassadors to
accomplish the object of their appointment safely, freely, faithfully and successfully by receiving
the necessary immunities. In the 18th Century, the Lord Chancellor in Barbuitt’s case declared
that diplomatic privileges stem from the necessity that nations need to interact with one another.
Similarly, in Parkinson v Potter19the court observed that an extension of exemption from
jurisdiction of the courts was essential to the duties that the ambassador has to perform.
Preuss very pertinently observes: “As the foundation of the diplomatic immunities, the theory ne
impediatur legatio or the interest of function is now predominant, having supplanted the function
of extraterritoriality as the theoretical basis of diplomatic privileges and immunities. It shares the
field with the representation theory, without being excluded by it.”20 The Modern tendency is,
however, to allow immunities and privileges to an envoy on the basis of “functional necessity”,
that is to say, the immunities are to be granted to the diplomats because they could not exercise
18
Supra Note 16, p. 357.
Parkinson v Potter [1885] 16 QBD 152, http://www.uk/qbd/parkinson/potter (accessed on 30th June 2012)
20
Tandon M.P, Public International law, (16th (Ed), Allahabad Law Agency), 2005, p 270
19
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Dr. M.L Kalicharan, ‘Diplomatic Immunity-An Indian perspective’
their functions perfectly unless they enjoyed such privileges. It is obvious that were they liable
to ordinary legal and political interference from the state or other individuals, and thus more or
less be dependent on the goodwill of the government of the state to which they are accredited,
they might be influenced by considerations of safety and comfort in a degree which would
materially hamper them in the exercise of their functions.
The theory gained credence during the First World War and gained even more impetus since
then due to the expansion of permanent resident embassies, the increase of non-diplomatic staff
to help perform diplomatic functions, and the increase of international organisations which
require immunity to be granted to more people. So it seems that necessity and the security to
perform diplomatic functions are the real reasons for diplomatic immunity; hence the test is not
whether acts are public, private or professional, but whether the exercise of jurisdiction over the
agent would interfere with his functions.
It is this of “functional necessity” which, it is said, casts an obligation on states to grant a certain
minimum of immunities and that minimum comprises such immunities and privileges as will
permit the diplomatic envoy to carry out his functions without hindrance or avoidable difficulty.
Nothing less will ensure compliance with maxim ne impediature legato. It is the basis of
“functional necessity” the International Law Commission proceeded in preparation of the draft of
Article of Vienna Convention on Diplomatic Relations.21
The International Court of Justice in U.S.A v Iran22 observed that “the institution of diplomacy,
with its privileges and immunities has withstood the test of centuries and proved to be an
instrument essential for effective co-operation in the international community, and for enabling
states, irrespective of their differing constitutional and social systems to achieve mutual
understanding and to resolve their differences by peaceful means, further while no state is under
any obligation to maintain diplomatic or consular relations with another, yet cannot fail to
recognize the imperative obligations inherent therein, now codified in the Vienna Convention of
1961 and 1963. “One of the pillars of modern international law is the diplomatic immunities of
the ambassadors”. The primary advantage of this functional necessity is that it is adaptable and
21
22
The report of the Tenth Session of the International Law Commission, http://www.ILC/report/session/tenth (accessed on 20th June 2012)
ICJ Reports, 1980, p. 3, http://www.icj.org/reports/1980 (accessed on 20th may 2012)
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has safeguarded against excessive demands for privileges and immunities. In other words, it
restricts immunity to the functions of the diplomat rather than giving him absolute immunity. A
disadvantage is that it does not fully address the real need for diplomatic immunity to cover other
acts performed by diplomats outside their official function. Generally, diplomats should not
commit criminal acts or act in a manner unbefitting of their status.
A diplomat’s behaviour in a foreign country is best described by the Arabic proverb: “Ya
ghareeb, khalleek adeeb” which translates to “O stranger, be thou courteous”.23 What is of
greatest importance is that diplomats should act in good faith for the protection of the receiving
State’s security? Functional necessity is recognised in the Convention 1961 and was deemed
practical under the UN Convention. Current juridical understanding of diplomatic immunity
demonstrates that diplomats cannot be prosecuted for criminal or civil acts outside their
diplomatic functions (Article 31 of Convention 1961). Yet it seems that in practice they have
absolute immunity against criminal prosecution, whether their acts are during or outside their
functions. Another criticism of this theory is that it is vague, since it does not establish what a
“necessary” function of a diplomat is. What is reflected in the theory is that diplomats cannot
function properly without immunity. The extent of this immunity may be understood to mean
that diplomats may break the law of the receiving State in order to fulfill their functions.
Whatever may be the theoretical basis for granting of diplomatic immunities, which form an
exception to the rule that all the persons and things within a sovereign state are subject to its
jurisdiction, it is and has been an acknowledged rule of law that states are under obligation to
allow the diplomatic agent to enjoy full and unrestricted independency in the performance of his
allotted duties, which necessarily implies immunity from jurisdiction in respect of his person, his
acts, and the premises of the diplomatic mission.
L Lloyd, ‘What’s in the Name? The Curious Tale of the Office of High Commissioner’, Diplomacy and Statecraft,
(2000), p.32-33
23
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The Indian Perspective
The allegation of Oppenheim and other Western Jurists that international law originated in
Europe and its credit is to western civilization is not correct. The study of the original text books
of Ramayana and Mahabharata falsifies the contention of Western Jurists.24 In his view, during
the Ramayana and Mahabharata period some aspects of international law were in their developed
stage. Examples of International law relating to diplomatic agents may be cited in this
connection.25 Consequent on a development over some hundreds of years the institution of
Diplomatic Representatives has come to be the principal machinery by which the intercourse
between states is conducted. The permanent appointment of diplomatic envoys began from the
seventeenth century. The rights, duties, immunities and privileges, etc., of the diplomatic agents
in eighteenth and nineteenth centuries were mostly in the form of customary rules of
International law. The first great and mark, therefore, was the Congress of Vienna 1815 wherein
the customary law regarding diplomatic agents was clarified and codified.
After 1815 also, the law relating to diplomatic agents continued to develop and finally a
Convention was adopted in 1961. The Convention is called Vienna Convention on Diplomatic
Relations. However, the Preamble of the Vienna Convention makes it clear that those matters for
which there in no express provision in the Vienna Convention will still be governed by the
customary rules of International law. It may be noted here that the Indian Parliament passed the
Diplomatic Relations (Vienna Convention) Act, 1972, to give effect to the Vienna Convention
on Diplomatic Relations, 1961, and to provide for matters connected therewith. Other States
have also passed similar Acts. “The law relating to the diplomatic and consular affairs remains
the strongest section of the international law.”26
Torture of Indian Diplomat in Pakistan:
On 24th May, 1992, an Indian diplomat Rajesh Mittal was tortured and interrogated for nearly
seven hours. Later on, he was expelled on charges of obtaining secret documents. It may be
noted here that a month prior of this incident, a Pakistani diplomat was expelled from India on
espionage charges. Mr. Mittal’s torture was probably in retaliations of the said Indian action.
S.S. Dhawan, ‘The Ramayana- International Law, in the Age of the Ramayana’, National Herald Magazine, Sunday, January 28, 1973, p. 1.
Dr. Nagendra Singh, India and International law, ( 2nd (Ed), Central law Agency, Allahabad) 1969, p.12
26
Rahamatullah Khan, ‘International Law—old and New’, Indian Journal of International Law, 1975, p.373
24
25
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Probably in retaliation, the next day, i.e., 25th May, 1992, India declared two Pakistani diplomats,
Counsellors Zafarul Hassan and Syed Fayaz Mahmood Endrabi persona non gratia, i.e.,
undesirable persons and asked Pakistani High Commission to withdraw them within 48 hours.
Prior to Mittal’s incident, when India declared the Pakistani diplomat persona non grata, it was
in conformity with Vienna Convention and rules of international law. But the torture of Indian
diplomat by Pakistani intelligence officials is a flagrant violation of the principle of inviolability
of the person of diplomatic envoy as enshrined in Article 29 of the Vienna Convention on
Diplomatic Relations, 1961. The principle of the inviolability of the person of the diplomatic
envoy and the obligation of the receiving State to protect the personnel of the mission has been
upheld and reaffirmed by the International Court of Justice in the case of the United States
Diplomatic and Consular Staff in Tehran (1980).
Subsequent Indian action in retaliation to declare two Pakistani diplomats persona non gratia was
also in conformity with Convention 1961. On the other hand, Pakistani action torturing Indian
Diplomat was not only barbaric and primitive but was also a flagrant violation of the rules of
international law including Convention 1961 on Diplomatic Relations, and established norms of
international relations. In an another incident, (per The Times Of India May 26, 2003), Mansoor
Ali, son of the Senegalese envoy here, charged with culpable homicide with regard to the killing
of his driver Dilawar, enjoys immunity from law which members of the diplomatic corps and
their family members have under the Convention 1961, to which India is a signatory. While the
external affairs ministry was "informed" on Sunday of the incident that took place late on
Saturday, the task remained very much with the Delhi Police and the investigating agencies
concerned. The ministry would come into the picture after a report of the police investigation is
received.
Diplomatic staff and their family members, wherever posted, enjoy immunity as per international
law for official acts as well as those carried out privately. Under the rules, a diplomat's family
member does not enjoy immunity if he an adult. The Senegalese envoy's son is 24 years old.
The rules also say that if investigation shows that such a family member, who is an adult, is
actually liable, he has to seek special permission from the Indian government for immunity.
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However, this does not prevent harsh action on the part of the authorities in the host countries
whenever actions are perceived, whether based on evidence or apprehension or plainly to draw
propaganda mileage.
The Indo-Pak relations have been replete with incidents where diplomatic personnel and their
family members have been subjected to physical harm, intimidation, illegal confinement or pure
harassment and mental torture. Protest against each such incident is usually registered by citing
the Vienna Convention. To give effect to the Convention, India formulated The Diplomatic
Relations (Vienna Convention) Act, 1972, which essentially deals with the diplomatic privileges
and immunities as set out in the Convention. Accordingly, diplomatic agents enjoy absolute
immunity from the criminal jurisdiction of the receiving state, and immunity from its civil and
administrative jurisdiction. This immunity of diplomats extends not merely to their own persons,
but to their suite and members of their family forming part of their household, provided that they
are not nationals of the host country.
The principle on which the immunity is based is that the diplomat should be free to perform
official business on behalf of his country, without disturbance, interference or interruption.
According to advocate Indian jurist, there are certain exceptions. These include an action relating
to private immovable property situated in the host country unless he holds it on behalf of the
sending State (of which he is the representative) for the purposes of the mission. The second
exception relates to an action relating to succession in which the diplomat is involved as
executor, administrator, heir or legatee as a private person and not on behalf of his country. Any
action relating to any professional or commercial activity exercised by the diplomat in the host
country outside his official functions is also not covered by the Convention.27
Time and again such incidents in violation of the Convention1961 has occurred in Pakistan
despite India’s protest and condemnation of such acts, there has been no abatement of the
number of such cases. The only course open to India is either to break diplomatic relations or
widely publicize Pakistan’s violations of the Convention so as to create world public opinion
against Pakistan. The former course does not seen to be feasible in the present state of
27
Diplomatic immunity covers family members - The Times of India http://timesofindia.indiatimes.com/india/Diplomatic-immunity-coversfamily-members/Articleshow/47501603.cms#ixzz145xvZ0Xo. (accessed on 20th may 2012)
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circumstances. India can adopt the latter course and should make use of her diplomatic mission
abroad for this purpose.
India's efforts at curbing the financing of terrorism have led to a startling revelation: the Pakistan
high commission in New Delhi has been a major conduit for channeling funds to terrorist outfits
in Jammu and Kashmir and elsewhere in the country. The federal home ministry has prepared a
report on the financing of terrorism undertaken by the high commission over the years, which is
lacking in one respect: the amount of money so far pumped in through diplomatic channels.
Deputy Prime Minister and Home Minister L.K. Advani recently shared the ministry report with
members of the Parliamentary committee.28
Lastly, under Article 34(b) of the Vienna Convention, a diplomatic agent is not immune in
respect of dues and taxes on private immovable property situated in the territory of the receiving
State unless he holds it on behalf of the sending State.29 In India suits against foreign states and
diplomatic agents are governed by Section 86 of the Civil Procedures Code, 1908. According to
this section, for filling of such suits consent of the Central Government is a condition precedent.
Immunity conferred by Section 86 is not limited to any particular class of suits. A person is
‘sued’ not only when the plant is filed but also when the suit remains pending against him. The
word ‘sued’ covers the entire proceeding in an action. Though Section 86 is not retrospective yet
it refers to all stages of a suit and bars the further progress of a pending suit in absence of
sanction even if no sanction was necessary at time of its institution. A pertinent question,
however, arises, are the Indian citizens without remedy when the Central Government refuses to
give sanction? In Century Twenty One (P) Ltd. V. Union of India,30 a private party gave his
residential premises to the Ambassador of Afghanistan under a lease. The Government refused
to give consent for filling of the suit. The petitioner filed a writ in the High Court of Delhi under
Article 226 of the Constitution for the enforcement of his fundamental right to hold and dispose
of property. After making a distinction between liabilities arising out of sovereign acts of foreign
states and liabilities arising out of commercial activities, the court directed the Central
28
Iype, George, India Abroad, 08-09-2002, (accessed on 20th may 2012)
Section 6 The Diplomatic Relations (Vienna Convention) Act, 1972
30
A.I.R. 1987 Delhi 124
29
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Government to accord sanction to the petitioner to sue the Afghan Ambassador for the recovery
of arrears of rent.
But in Hurbhajan Singh v. Union of India31, the Supreme Court’s orders were persuasive and not
peremptory. In this case, the petitioner claimed recovery of his dues from the Ambassador of
Algeria in New Delhi for the building maintenance, reconditioning and renovation work at the
Embassy of Algeria in New Delhi. His representation for the recovery of dues having failed to
produce the desired result, he requested the ministry of External Affairs to grant sanction for
suing the Algerian Embassy. The Ministry rejected his request in November 1983 saying that it
regretted that “permission to the State of Algeria cannot be given on political grounds”. Against
this, the petitioner filed a writ petition in the Supreme Court under Articles 32 of the
Constitution. In reply the Government changed its stand and said that “no prima facie case was
made out and the case was not squarely covered under Section 86, Para (1) and (2) of the Code
of Civil Procedure”. It was also argued on behalf of the Government that under Section 86, Para
(1) and (2) of Code of Civil Procedure the Central Government has “discretion to refuse consent
as required under that section”. The Court noticed the apparent contradiction in the
Government’s stand and held that it was for the judiciary to adjudicate whether there was a
prima facie case or not. As regards the refusal of sanction on ‘political grounds’ the Supreme
Court observed that “the political relationship between two countries would be better served and
the image of a foreign state and the image of a foreign state be better established if citizen’s
grievances are judicially investigated. This would be in consonance with human rights.”32
The Supreme Court further observed: “In this case, the petitioner had right to carry on the work
of maintenance and repairs in this country. The right is granted to him under the Constitution and
he trades within the local limits of the courts in India and the foreign state which he wants to sue
has immovable property in India situate within the limits of this country. There is dispute about
the petitioner’s claim. That dispute has not been judiciary determined. It has not been held that
the claim of the petitioner is frivolous. In that view of the matter, it appears to us that a foreign
state in this country if it fulfills the conditions stipulated in sub-section (2) of Section 86 of the
Code would be liable to be sued in this country. That would be in conformity with the principles
31
32
A.I.R. 1987 S.C. 9
Ibid, at p. 14; per Sabyasachi mukharji. J (as then he was and who later on became the Chief Justice).
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of international law as recognized as part of our domestic law and in accordance with our
Constitution and human rights.” Further, “It is well to bear in mind the two principles on the
Sovereign immunity rests. So far as the principle expressed in maxim par in parem non habet
jurisdictionem is concerned with the status of equality. The principle on which immunity is
based is that of non-intervention in the internal affairs of other states. In the days of international
trade and commerce international interdependence and international opening of embassies, in
granting sanction the growth of a national law in this respect has to be borne in mind. The
interpretation of the provisions of the Code of Civil Procedure must be in consonance with the
basic principles of the Indian Constitution.”33
Sabyasachi J. of the Supreme Court delivering the judgment set aside order dated 26 November
1983 and directed the Union of India to reconsider the matter and “explore the possibilities with
Algerian authority of mutual settlement either by arbitration or by other accepted legal norms.”
Further, “The Union of India should pass reasoned order in accordance with the development of
international law.”34
It has been aptly remarked, “To frustrate their (i.e. Indian Citizens) grievances in the name of
diplomatic immunities hardly contributes to the dignity of foreign missions. The Government of
India is therefore well advised to evolve a code of conduct to resolve just claims of India citizens
in this regard and the foreign missions be persuaded to adhere to such a course of action. This
course will be in harmony with the Conventional obligation on the part of the host country to
‘facilitate the acquisition on its territory in accordance with its laws, by the sending state of
premises for mission to assist the latter, in obtaining accommodation in some other ways’ and,
where necessary it shall also ‘assist missions in obtaining accommodation for their members’
Implicit in this provision is the concomitant reciprocal obligation on the part of foreign mission
in India to pay promptly the rents and other charges relative to the accommodation occupied by
them and the members of their staff. Any claim of immunity in this area is definitely derogatory
to diplomatic decency.” 35
33
Ibid, pp. 14-15.
Ibid, at p. 15.
35
K. Narayan Rao, ‘Foreign Embassies in India; Claims for recovery of Rents and repair Charges’, India Journal of International Law, Vol. 27
No. 4 (Oct - December 1987), p. 486.
34
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The fact, however, remains that in the absence of consent of the Central Government as required
under Section 86 of the Code of Civil Procedure suit cannot be filed against the ambassador of a
foreign state. Even after obtaining the consent, if a suit has been filed, the ambassador can
immunity from the jurisdiction of the court and the courts will then be proceeding against him.
Section 5 of the Diplomatic Relations (Vienna Convention) Act, 1972, which was passed by the
Parliament of India to give effect to the Convention 1961 and to provide for matters connected
therewith. Section 5 provides for the purpose of Article 32 of the Convention set out in the
schedule, a waiver by the head of the mission of any person for the time being performing his
function shall be deemed to be a waiver by that State.
The film Hotel Rwanda was a powerful portrayal of the vicious genocide that decimated the
people of Rwanda during the 1990s, and was sparked off by the killing of Rwandan President
Juvenal Habyarimana. The film has come to be known as the African Schindler’s List. Readers
will recall Don Cheadle playing the manager driving in the foggy night to get supplies for his
hotel. For some reason the road seems bumpy. But when he gets out, he sees corpses littered on
the road, as far as the eye can see.
The genocide was possibly one of the worst international crimes in recent history. The world
closed its eyes to Rwanda as ethnic Hutus hacked around a million Tutsis to death, mostly with
machetes, in a span of 100 days. No one really wanted to know about it. In the film Cheadle
warns a Hutu general that the world will sit in judgment over the events in Rwanda. Ironically,
one of the men considered by a French court to be involved in the assassination and subsequents
genocides and wars roams free here in India, enjoying the immunity from arrest and prosecution
that is due to a diplomat.
The Rwandan Ambassador, Lt. General Kayumba Nyamwasa has been indicted for genocide,
crimes against humanity and arrest warrants have been issued against him by courts in France
and Spain. In 2006, French Judge Jean-Louis Bruguiere issued warrants for the arrest of several
Rwandan leaders including the current Rwandan President Kagame as well as Ambassador
Nyamwasa to be tried for alleged complicity in the killing of the ethnic Hutu President Juvenal
Habyarimana which sparked off the genocide of ethnic Tutsis in Rwanda in the 1990s.
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But again in February this year, in a case reminiscent of the Pinochet case, a Spanish court
indicted 40 Rwandans including Ambassador Nyamwasa for several counts of genocide, human
rights abuses and terrorism in the 1990s. Under Spanish law, a court can prosecute human rights
crimes even if the alleged offences took place abroad. A slowly growing number of countries
like Belgium and Canada have enacted such laws assuming universal jurisdiction, i.e.,
jurisdiction to try serious offences like genocide, war crimes and crimes against humanity that
take place anywhere in the world.
The Rwandan Embassy website has Ambassador Nyamwasa inviting visitors to his country. The
Ambassador was part of the Tutsi-dominated rebel Rwandan Patriotic Army which is widely
credited with carrying out the assassination of former President Juvenal Habyarimana, sparking
of the genocide of ethnic Tutsis by the Hutu dominated government. The RPA later took over the
country and reportedly carried out counter-atrocities of their own against the Hutus. Predictably,
this website blames the Habyarimana for planning and carrying out the genocide. But there are
questions as to how it was sparked off after his assassination.
The Rwandan army invaded Congo in 1996 to continue its attacks on Hutus, further leading to
two wars in Congo. The BBC in 1998, referring to the attacks conducted by the RPA against
Hutu militias, quoted Nyamwasa, the then military chief of staff, as saying, “We have the means.
We have the will. We will kill until they (the Hutu militias) lose their appetite for war.”
The crimes Nyamwasa is charged with came to light during the Spanish court’s investigation of
the brutal killing of eight Spaniards in Rwanda in 1997. The majority of these crimes were
against ethnic Hutu Rwandan refugess in the Congo and ethnic Hutu Congolese civilians. The
French court indicted him and others as a result of the investigation into the air crash which
killed President Habyarimana as well as the then President of Burundi, Cyprien Ntaryamira, as
the plane they were on carried a French crew which was also killed. French investigating
magistrate, Jean-Louis Bruguiere, well known for his activist style of functioning, was also
responsible for the capture of international terrorist, Carlos the Jackal. He has since left the
judiciary and entered politics.
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While the Indian government did not choose Nyamwasa to be Rwanda’s envoy to this country,
questions can be raised at the propriety of the Indian government dealing on equal terms with a
person of such peculiar credentials as to be indicted for genocide. While neither France nor Spain
has asked for the arrest and extradition of Nyamwasa, even if such a request were made, the
diplomatic immunity held by the Rwandan ambassador would bar the Government of India from
acceding to such a request. “He enjoys diplomatic immunity so the Indian government has to
take a political decision as to whether to ask the Rwandan government to recall him, since these
are serious charges. If the court notice comes, the Indian government can ask the Rwandan
government to respond to the charges. Or it could just leave to Rwanda to settle it with France
and Spain,” says G. Parthasarthy former Indian envoy to Pakistan, Australia and Myanmar.
But the problem there would be the Rwandan President Paul Kagame was also implicated by the
two courts of involvement in these crimes. He, however, escaped an indictment because his
status as head of state gave him sovereign immunity. The Rwandan Parliament has reportedly,
recently debated and dismissed these indictments as Senate President Vincent Biruta, in his
opening remarks explained that, “the indictment was done in an inappropriate manner that does
not respect international law.” Rwanda also thinks the extending of universal jurisdiction over
Rwanda by states like Spain and France amounts to arrogance. The Rwandan embassy reacted by
saying, “there is no basis to support these allegations.” In a written response, they say, “It is
absurd that a foreign judge could issue an indictment against officials of a sovereign state
without going either through diplomatic channels or judicial institutions of that state.”
The embassy says the Spanish judge never investigated the case properly and issued indictments
on the basis of the ‘falsehoods’ of the ‘well-known detractors of Rwanda’. It also claims Spain
has given assurances of having been ‘no party to this misuse of universal jurisdiction.” The
Rwandan mission also said the government of Rwanda has called upon Interpol to ‘ignore these
warrants’ and all UN member states to refuse to give effect to these ‘bogus and ridiculous’
indictments. Canada is also currently trying a Rwandan on charges of genocide, war crimes and
crimes against humanity.36
36
Saurabh Joshi, Times of India, December 18, 2008 p.12
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In R. v. Governor of Pentonville Prison, ex parte Teja,37 the first of three decisions examined
here, Teja was arrested on leaving Heathrow Airport in London bound for Geneva, following a
warrant issued by the Republic of India charging him with a number of offences. It was accepted
by the court that he was on a mission for the Costa Rican government, in the nature of a "special
mission" within the meaning of provisions of the Convention on Assistance in the case of a
Nuclear Accident or Radiological Emergency, drawn up in Vienna on 26 September 1986. The
State requesting assistance is required to afford privileges and immunities to personnel of the
assisting party "who have been duly notified to and accepted by the requesting State".
In the words of the International Court of Justice, again speaking unanimously beyond that
remedy for dealing with abuses of the diplomatic function by individual members of a mission, a
receiving State has in its hands a more radical remedy if abuses of their functions by members of
a mission reach serious proportions. This is the power which every receiving State has at its own
discretion, to break off diplomatic relations with a sending State and to call for the immediate
closure of the offending mission.38 To the family and colleagues of Police Woman Yvonne
Fletcher, who was shot dead outside the Libyan People's Bureau in London on 17 April 1984, it
may have seemed small comfort that the UK broke off relations with Libya on 22 April, and that
the wanted gunman went free. But the severance of relations-and the complete cessation of all
the benefits diplomatic relations bring-must have been a far greater penalty for the sending State
than had one of its representatives merely languished in goal while the business of State went on.
These remedies or necessary means of defense against illegal or illicit activities by members of
diplomatic missions are contained in Article 9 of Vienna Convention on diplomatic relations
1961 the power to declare any member of the diplomatic staff persona non grata and to refuse to
recognise the person concerned as a member of the mission. The effect of exercising such a
power is either to get rid of the offender from the territory, or to limit the offender's immunity to
those acts he or she performed in the exercise of diplomatic functions: legal proceedings could
be taken in respect of any other acts.
37
R. v. Governor of Pentonville Prison, ex p. Teja [1971] 2 Q.B. 274 (CA) http://www.echr.coe.int/eng/judgments.htm(accessed on 15th Jan
2012)
38
[1980] I.C.J. Rep. 3; 61 I.L.R. 530, para.85 http://www.icj-cij.org/icjwww/idecisions.htm (accessed on 20th may 2012)
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Conclusion
These various Acts have not comprehensively restricted diplomatic immunity. It can be argued,
however, that they have provided greater protection of private citizens by limiting the classes of
personnel entitled to immunity, and also allowing for civil suit against diplomatic staff. The
abuse of immunity, even if it is rare, is as old as the concept of immunity itself. Similarly, the
tools receiving States employ to address such abuses are not new. To solve problems of abuse in
any country, one must weigh the safety of a nation’s diplomats against the desirability of holding
foreign diplomats responsible for their criminal and civil acts. Justice must not simply be done,
but seen to be done. Yet the benefits of improved international relations are derived from the
granting of immunity and must be balanced against the obligation of the receiving State to
protect the interests of its citizens.
A long-term view of diplomatic immunity, from the earliest writings to today’s debates, reveals
an ongoing movement to narrow the scope of immunity granted to diplomats. The invoking of
immunity can violate constitutional values and will lead to emotional responses. This means
immunity will continue to be criticized and eroded until it achieves a rational and constitutionally
acceptable basis. Until then, traditional diplomatic immunity is not the only instrument for
protection, but as long as States adhere to this, diplomatic protection remains indispensable.
However, it may ultimately prove to the global community’s peril to fail to heed the call for
other measures in attempting to curb abuses.
On a general assessment, the question of abuse by protected persons has been mild when
compared with the number of diplomatic missions all over the world. Though from the viewpoint
of the author abuse must have increased in recent times due to the divergent pressures in the
international system, there have been more adherence to international law than violations.
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