Introduction
1
Chapter 1: Introduction
The web of our life is of a mingled yarn, good and ill together.1
1.1 Background
Diplomacy as once known is at an end.2 But this is not to say; that diplomacy
is no longer has its place, in international relations. Perhaps the simplest or most
basic approach to defining and describing diplomacy, which is almost as old as
government itself, is to think of it in terms of continuous contact between states
through permanent representation. Technological advancements and transportation
improvements are making the world a much smaller place, further increasing overall
levels of contact between private parties and the governments of foreign nations.
These heightened levels of interaction and the corresponding increase in potential
litigation between private parties and foreign entities have created a greater need for
uniformity and predictability in the law of sovereign immunity.
Immunity has been a feature of diplomatic relations for thousands of years.
While the practice of listening to a messenger instead of killing him on first sight
probably dates to the earliest, interactions between states, ancient Greece is the first
civilization with a record of systematic diplomatic immunity.3 The numerous small,
closely-linked city-states on the Grecian Peninsula required dependable
communication paths among states in order to foster alliances and prevent any state
from asserting dominance over the entire area. The concentration of states in a
relatively small geographic area and the existence of a common language and culture
no doubt facilitate interaction between states. That, combined with the states’ needs to
keep abreast of developments with their neighbors, led to diplomacy as a regular
feature of inter-state interactions in that era. Ambassadorial offices became
standardized and immunity was well understood to protect the envoys from official
and private interference with their duties. Individual missions, however, were strictly
ad hoc. Envoys were chosen and dispatched to relay very specific messages. Envoys
had power for only one negotiation and returned home as soon as their messages were
delivered and responses received. On their return to the home state, the appointments
1 William Shakespeare, All's Well that Ends Well, Act 4, Scene. 3
2 C.L. Sulzberger, ‘Sent to Lie Abroad no More’, International Herald Tribune, January 28, 1972, p.4
3 Keith Hamilton & Richard Langhorne, The Practice of Diplomacy, (4
th (Ed), Sweet & Maxwell:
London), 1995, p. 8.
Introduction
2
ended.4 The envoy stays in the host state, therefore, were too short to give rise to
substantial concerns that immunity might operate to the detriment of the local
populace.
Diplomatic immunity's roots are ancient, predating the time of Christ, ancient
Greek and Roman literature provide evidence of use of the doctrine. The Old
Testament of the Christian Bible, and the Code of Hammurabi, which dates back to
1700 B.C., also acknowledge the doctrine's use. Ancient Mediterranean countries
should receive credit as the first to establish regular diplomatic contacts between
nations. In that era, the doctrines of diplomatic immunity and the inviolability of
diplomatic correspondence and premises developed. Civilized nations adhered to
these doctrines for centuries before the codification of diplomatic law.
Abuse of the doctrines by diplomats also has ancient roots, predating their
codification. The doctrine of diplomatic immunity traces its roots back to ancient
times, and it is a practice that should remain intact. However, it is not a practice to be
abused, and appropriate precautions can and should be taken to ensure that diplomats
abide by the laws and regulations of the host state. While it unfortunately often takes a
tragic event to bring about policy changes in the realm of diplomatic immunity, a
balance must be achieved that not only protects diplomats from harassment but also
those citizens that accord visiting diplomats the hospitality of their nation. It has been
said that diplomacy is as old as the nations themselves and that the practice will only
disappear when the world comes to an end. Just as social relations grew from
individual families to organized states through primitive diplomacy, there likewise
grew the need between states themselves for a method to regulate customs and
contracts, hunting, trade, navigation, communications, disagreements and wars.
Manu told “let the king appoint an ambassador; the army depends on its
commander, control of subjects (depend) on the army; the government of the kingdom
on the king; peace and war on the ambassador”. The studies of the original text books
of Ramayana and Mahabharata have some aspects of international law.5 Although,
the modern state system dates only from 1648 and Treaty of Westphalia, laws relating
4C H Brower, ‘International Immunities: Some Dissident View on the Role of Municipal Courts’,
Virginia Journal of International Law, (2000-2001), p. 41 5 Chacko C.J., ‘International Law in Ancient India’, Indian Journal of International Law, (Vol. 1),
1961, p.34
Introduction
3
to diplomacy go back to the earliest recorded history when men were in different
groups first attempted to deal with one another. The oldest recorded treaty dates from
3000 B.C between the king of Lagash and Umma and many of our diplomatic
practices were well established in past centuries by the ancient Hebrews, Greeks and
Romans. Immunity has been a feature of diplomatic relations for thousands of years.
While the practice of listening to a messenger instead of killing him on first sight
probably dates to the earliest interactions between states, ancient Greece is the first
civilization with a record of systematic diplomatic immunity. The practice of formal
diplomacy failed to spread much beyond Greece due to the ascendancy of the Roman
Empire. As the hegemonic state of its era, the empire was more accustomed to using
force than persuasion, and diplomacy was not substantially revived in Europe almost
until the Renaissance.
The permanent appointment of diplomatic envoy began from the seventeenth
century. The rights, duties, immunities and privilege of the diplomatic agents in the
eighteenth centuries were mostly in the form of customary rules of international law.
In the new era the diplomacy is used as tool to solve different problem between the
nations and also to solve the problem of international importance. The need of
diplomacy in past was only limited to sending messages and receiving messages and
only in a limited context. But even in the olden days the diplomats were treated with
at most respect. The “Hanuman” in large epic Ramayana was sent as diplomat to
solve the problem of possible war. From that time to present time diplomats have
been playing an important role in keeping peace between the nations. Similarly when
states came into existence though their relations with one another might be infrequent;
there were occasions when agreement had to be sought for some common object.
Distrust of foreigners was almost universal in the early ages of society. But if any
negotiation were to take place, conventions safeguarding the security of heralds or
envoys had to be observed, and often some form of religious sanction was used for
this purpose.
International relations between friendly states have characterized from the
beginning of the recorded history by a need for a special organs of communication.
Harold Nicolson has opinioned that “Diplomacy in the sense of the ordered conduct
of relations between one group of human beings and another group alien to
Introduction
4
themselves is far older than history”.6 Some of the thinkers viewed that diplomats
were the angels, who served as messengers between the heaven and the earth. Before
the newspapers and news agencies the diplomats were the principal sources of foreign
news for governments. In some form or other diplomats have been on the world
picture for a long time. Grotius father of International Law considered that some sorts
of international body to be organized to enforce diplomacy. Grotius had contributed a
lot to lay theoretical foundations for the New Diplomacy; and it was Cardinal
Richelieu of France had given more practical application. According to Nicolson,
Richelieu was the first statesman to recognize diplomacy as a continuing process and
not just a way station where one stops for repairs when something breaks down.
Right of Legation:
The right of legation or the right to representation is the right of the state to
receive and send diplomatic envoys. The active right of legation means the rights of
state to send its diplomatic envoys to another state. The passive right of legation is the
right to receive a diplomatic envoy to another state. A state which sends and also
receives diplomatic envoys exercises both the active and passive right of legation. The
right of legation is generally the right of the de jure government and the belligerent
community has no such right unless the de facto government assumes a permanent
character and receives recognition. The diplomacy from the past has taken many
dimensions. After the two world wars and the United Nation Organization has taken
many steps for keeping peace in the world and to avoid future world wars and avoid
massive destruction.
Diplomats were given world wide importance after the First World War and
during Second World War. The need for permanent institution of diplomats in the
alien nations which would enable the states to solve the difference through talks was
recognized and for which many international treaties and conventions were held and
most of the de jure states were members to these conventions and treaties these
conventions and treaties looked into the immunity and privileges that may be granted
to the diplomats and envoys residing in the foreign states to which all states agreed.
6 M Ogdon, ‘The Growth and Purpose in the Law of Diplomatic Immunity’, American Journal of
International Law, 1937, pp. 63-65
Introduction
5
The development of diplomacy has taken a long run to reach the final stage,
even then there are number of problems faced by the diplomats in the recent times
during war which have no solutions under the present international conventions. The
diplomats and art of diplomacy has become the major part in international relations.
Immunity under the Vienna Convention on Diplomatic Relations 1961(in short
Convention 1961) is, thus, strictly a function of individuals and conflicts with
diplomatic immunity's purpose of safeguarding the diplomatic process by immunizing
individuals only to the extent they engage in activities necessary to that process.
While the Convention 1961 makes assumptions about the types of activities that are
carried out by the immunized classifications of individuals, and in this way structures
diplomatic immunity by function, the rigid classifications nonetheless create the
possibility for evasion by opportunistic states. The Convention 1961 had not been in
force long, and its place in modern diplomatic history was still tentative, when the
first edition of Eileen Denza's commentary on it was published in 1976 as a joint
project of Oceana Publications and the British Institute of International and
Comparative Law.7
The 1961 document contains fifty-three Articles, thirteen of which are devoted
to the subject of immunity. The preamble posits that the motivation of such privileges
and immunities is to "contribute to development of friendly relations among nations,
irrespective of their differing constitutional and social systems." Immunity from both
criminal prosecution and civil liability has been extended to diplomats for over two
thousand years. The Vienna Convention on Diplomatic Relations, promulgated in its
present form in 1961, controls the conduct, goals, limitations, and privileges of
modern day diplomats throughout the world. Although an ancient practice, both the
scopes of diplomatic immunity, and the theories that support its persistence, have
come under recent attack by the legal community and general public.
1.2 Objective of the Study
Rules that regulate diplomatic relations are one of the earliest expressions of
international law. Diplomacy exists to establish and maintain relations between States
in order to achieve commercial, political and legal objectives. International law, along
7 E Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, (2
nd Ed,
Clarendon Press: Oxford), 1998, p. 32
Introduction
6
with diplomatic immunity, is not imposed on States but is generally accepted through
consensus and reciprocity, on the basis that peaceful compromise must override
violent confrontation. The object of this study is to establish whether diplomats, their
staff and families need absolute criminal immunity. Possible alternatives to immunity
will be discussed. As a consequence they are granted certain immunities and
privileges to facilitate this function within the State to which they are accredited.
Diplomatic immunity means that foreign diplomats are not subject to the jurisdiction
of local courts in respect of their official and, in most instances, their personal acts.
Diplomatic immunity, as it is understood today, is a function of historic
customs which have developed and have been to an extent codified. Diplomatic
immunity is molded around three major theories that originated in the mid-16th
Century personal representation, extraterritoriality and functional necessity. The
earliest theory, personal representation dictated that a diplomat’s immunity arose
because the diplomat was an extension of the ruler sending him thereby granting him
immunity. Extraterritoriality dominated in the 18th
Century, which meant that the
property and the person of the diplomat should be treated as though they existed on
the territory of the sending State. Functional necessity limits immunities and
privileges to those functions performed by the diplomat in his official capacity, and
are today embodied in the introduction of the Vienna Conventions of 1961 and 1963
and the UN International Immunities (The Vienna Conventions). Some authors
believe that the Convention of 1961 should be revisited, to prevent abuses by
diplomats, their families and their staff of the laws of the receiving State. Particular
emphasis is to be placed in this thesis, on the inviolability of diplomatic bags and
missions, and thereby clearly distinguishing the nature and scope of official and
private functions.
There have been several occasions where local courts have been called upon to
apply international law in relation to diplomatic immunity. It is thus necessary for
courts to appreciate and be able to apply the tenets of diplomatic law. The continued
increase in the numbers of diplomats in foreign countries and the demands of the
diplomatic system has led to the development of several Conventions regarding
Introduction
7
immunities, privileges and the behavior of diplomats.8 The United Kingdom and the
United States have considered changes in foreign policy and have re-examined
privileges and immunities given to foreign diplomats in their countries. Despite these
changes and policies, diplomats continue to abuse their rights. These abuses could
have dare consequences both for the diplomats and the sending State. The failure of
the Vienna Convention 1961 and/or other international agreements to provide any
suitable sanction fosters an environment for such abuses to continue. This critical
aspect will be addressed in this thesis. Justice must be seen to be served by all the
sending States, the receiving States and the victims.
Immunity carries with it an obligation, the duty to respect the laws and
regulations of the receiving State. If this is a requirement, then surely the prosecution
of the offending diplomat in the receiving State should be a reasonable and necessary
means of ensuring such respect. The purpose of immunity is often misunderstood by
citizens in foreign countries and when diplomats abuse their position it is often
brought to the public’s attention, resulting in numerous debates and problems for
enforcement officials whose duties are to protect and honor the law. If absolute
criminal immunity continues, diplomatic relations between countries could
deteriorate, if not collapse. This issue should be comprehensively and finally
addressed. By doing so it will ensure that relations between States are kept intact and
thereby promote peace and co-operation.
From the above perspective following objectives are posed:
• One of the main objectives of this research work is to overview the origin and
development of diplomacy in different modern systems.
• To articulate the functions of the diplomats under the international regime.
• It ascertains the need for universal law in regard to diplomacy.
• The study analyses the relationship between immunity granted and functional
necessity of the diplomats in recent times.
• The study analyses the international law relating to diplomatic asylum and its
effects on the diplomatic relations.
8 Frey and Frey, ‘History of Diplomatic Immunity’, American Journal of International Law, 1999, p.
216.
Introduction
8
• The study will be focusing on the implications and effects of international
customary law and Conventions.
• The study evaluates the pros and cons of the diplomatic immunity and
privileges granted to diplomats in international and domestic levels.
• To examine weakness of the Vienna Convention 1961 and its failure to
provide deterrence against violent conduct.
• The study analyses the impact of diplomatic abuse on human right and to
provide solutions for the same.
• The study gives the possible solutions to overcome the problem relating to
abuse of diplomatic immunities and privileges in international and domestic
laws.
1.3 Meaning of Diplomacy
The word ‘diplomacy’ is derived from the Greek word ‘diploma’ which means
a letter folded double a document, a writing conferring some honor or privileges. The
term diplomat or diplomatic are comparatively modern and have their origin in the
Latin word diplomas it means official documents emanating from princes. It was King
Louis XI who began the system stationing ambassadors permanently in foreign courts.
In the age of Louis XI the ‘envoy’ was merely a person sent by one of sovereign to
another to carry on special mission. In Middle Ages as in Arthasastra and in Europe
the diplomatic ministers were sent to carry on business of special nature.
According to Oxford English Dictionary, diplomacy connotes “the
management of international relations by negotiations”. It is “the method by which
these relations are adjusted and managed by the representative of countries who are
accredited to some other countries, i.e., the ambassadors or envoys.” Diplomacy is
the art of negotiation, especially of treaties between states, and involves the drawing
up of documents in a negotiable form. It is an art of intercourse of nations with each
other. In other words Diplomacy is an art of dealing at international level, and helps in
bringing out peaceful settlement of differences at international level and it is a
technical subject of bilateral by its nature and character; it is neither moral nor
immoral but value free. Diplomacy is in a sense a substitute of force; it is the means
of obtaining the maximum national advantage without the use of violence and,
Introduction
9
perhaps one might add, with minimum friction and resentment. Some may argue that
the ambiguity inherent in the description of the diplomatic process creates uncertainty
about the effects of any restriction on the diplomatic process and renders redefinition
of diplomatic immunity untenable.
Diplomacy is an art of conducting relationships for gain without conflict. It is
the chief instrument of foreign policy. Its methods include secret negotiation by
accredited envoys (though political leaders also negotiate) and international
agreements and laws. Its use predates recorded history. The goal of diplomacy is to
further the state's interests as dictated by geography, history, and economics.
Safeguarding the state's independence, security, and integrity is of prime importance;
preserving the widest possible freedom of action for the state is nearly as important.
Beyond that, diplomacy seeks maximum national advantage without using force and
preferably without causing resentment.
In the opinion of Harold Nicolson diplomacy is “The management of
international relations by means of negotiations; the method by which these relations
are adjusted are managed by ambassadors and envoys; the business or act of the
diplomats”.9
Tunkin’s definition of diplomacy is comprehensive and takes into
consideration current trends in international diplomacy, in which modern States use
different sophisticated means to attain their objectives. According to him it means:
“An activity (including content, modes and methods of the activity of general and
special state agencies of foreign relations) of heads of states and governments, of
departments of foreign affairs, of special delegation and missions and of diplomatic
representatives appertaining to the effectuation by peaceful means of the purpose and
tasks of the foreign policy of a State”.10
A cross-section of definitions of diplomacy meets at one point the crucial
issues of negotiation and peace. It simply means that every diplomatic endeavor must
have peace as an end result. Therefore, diplomacy encourages peaceful co-existence
in the international system. This again means that when conflict degenerates to armed
conflict then diplomacy may become increasingly more necessary, but at this stage it
9 Nicolson. H., Diplomacy, (3
rd (Ed), London: Oxford), 1969, p.5
10 Tunkin, G. I., Theory of International law, (London: George Allen and Unwin Ltd.), p. 273.
Introduction
10
has failed. The viewpoint that war is an aspect of diplomacy, based on contributions
of eminent scholars as already seen, is not correct. Diplomacy is intended to prevent
conflict from escalating to armed conflict.
Ambassador William Macomber once described diplomacy as ‘the Angels’
game. Ambrose Bierce defined diplomacy in the Devil’s Dictionary 1906 as “the
patriotic art of laying for one’s country.”11
Again the point being made here also is
that states are not the sole, though principal, actors in diplomatic intercourse, neither
is diplomacy restricted to diplomatic planning. Additionally, diplomats do not cease
to be so merely on account of being unintelligent and tactless, although such attributes
are essential. In summary, diplomacy must be the use of peaceful means in the
conduct of international relations.
Palmer and Perkins while expressing their view about diplomacy have said
that “in itself diplomacy like any machinery is neither moral nor immoral, its use and
value depends upon the intentions and abilities of those who practice it”.12 Occasions
must arise, even in the most primitive communities, when it becomes necessary to
send representatives to negotiate on matters of common interest with neighbouring
communities; these are most likely to occur in connection with temporary or
permanent cessation of warfare. Diplomacy as discussed above was conducted on a
bilateral basis, but examples can be found even then the field of activity extending
beyond bilateral limits, and today multilateralism has become one of the
characteristics of modern diplomacy. Improvements in means of transport and
communication demand more and more multilateral solutions, for today few problems
which only affect the relations between two single states.
Padelford and Lincon have defined diplomacy as “it is a process of
representation and negotiation by which states customarily deal with each other in
time of peace”.13
In his classic textbook, A Guide to Diplomatic Practice, Sir Ernst Satow
declares: “Diplomacy is the application of intelligence and tact to the conduct of
11William .R. Slomanson, Fundamental Perspectives on International Law, (Thomson West
Publication, USA), 2003, p. 102 12
Palmer and Perkins, International Relations the World Community in Transition, (3rd
(Ed), Scientific
Book Agency, Calcutta), 1998, p. 21 13
L J Harris, ‘Diplomatic Privileges and Immunities: A New Regime is soon to be Adopted by the
United States’, American Journal of International Law , 1968, p. 98
Introduction
11
official relations between the governments of independent states, extending
sometimes also to their relations with vessal states, or more briefly still the conduct of
business between states by peaceful means”.14
The definition appears to be suggestive that all diplomats are intelligent and
tactful. This cannot be so.15 Though this is desirable, not all diplomats can be tactful
and intelligent. The definition given by Satow is both prescriptive and restrictive.
American diplomat-scholar Smith Simpson described as “Diplomacy is the
means by which governments seek to achieve their objectives and the principles they
seek to advance in international affairs…. The process by which policies are
converted from rhetoric to realties, form strategic generalities to the detailed actions
or inactions of other governments…. Foreign policy is heard, diplomacy for the most
part is overheard”.16
Privilege and Immunity
The term “privilege” can be defined as a “right or immunity granted as a
special benefit, advantage, or favour, special enjoyment or an exemption from an evil
or burden”.17
It can also be conceived as the legal concept of being entitled or
authorized to do or not to do something as one pleases.18
Immunity on the other hand has been defined by Walker to be “a State of
freedom from certain legal rules”.19
The tasks of the diplomats are such that they
need an atmosphere free of pressure and undue interruption to be effective. Based on
this, international law has vested on them certain privileges and immunities which
states are bound to observe, to facilitate the performance of diplomats within their
territories.
The concept of privileges and immunities is an ancient one as can be seen
indicated in the opening paragraph of the Vienna Convention on Diplomatic Relations
of 1961 that is, “Recalling that peoples of all nations from ancient times have
14
Lord Gore-Booth, Satow’s Guide to Diplomatic Practice, (5th
(Ed), Longman: London), 1979, p. 73 15 Gasiokwu, M. U. and Dakas C. J, Contemporary issues and basic Documents on Diplomatic and
Consular Law, (Nigeria: Mono Expressions Ltd), 1997, p. 3 16
J. L. Simpson and Hazel Fox, International Arbitration (1959) 17
Webster New International Dictionary (3rd
Edition), p. 632. 18
Encyclopedia Britannica, (1968) p. 982 19
Walker, D. M., The Oxford Companion to Law, (London: Clarendon Press), 1980, p. 60.
Introduction
12
recognized the status of diplomatic agents…”20 These Privileges and immunities as
mentioned in paragraph 4 of the preamble of the same convention are not meant to
benefit individuals but to ensure efficient performance of their functions.
1.4 Theories
As the nature and authority of diplomats changed over the centuries from
mouthpiece to negotiator and occasional spy, so naturally did the legal basis for
diplomatic immunity in Anglo-European and in modern international law. The three
principal theories used to justify immunity are personal representation,
extraterritoriality and functional immunity.
Personal Representation this was the earliest theory on which immunity was
based. In the medieval era before permanent embassies, the envoy (the term
"ambassador" did not come into common parlance until the sixteenth century) was
viewed as the mouthpiece of the sovereign he represented and was granted the same
privileges as would obtain to that sovereign.21
More contemporary jurists have
advocated the theory as well, on theoretical bases ranging from the idea that the
emissary was the "alter ego" of the sovereign, entitled to all of the sovereign's rights
and privileges in the host country, to the proposition that the envoy personified the
state itself and derived immunity from the sovereign right of the state. The principle
has been recognized by U.S. courts, but falls short in a number of important respects.
Most notably, modern representative governments derive their power not from the
supreme authority of a single sovereign, but from the people themselves, who are
decidedly not immune from foreign court jurisdiction. In such a government, it is not
clear just whom the envoy personifies, or why that personification should entail a
grant of immunity. Further, the personal representation theory might offer some basis
for immunity from official acts, but is much less persuasive in exempting envoys from
the legal repercussions of private actions. Accordingly, this basis for immunity has
been largely discredited in the modern world.
Extraterritoriality theory is premised on the fiction that, for legal purposes, the
envoy (and his embassy), remain in the territory of the sending state. It arose in the
20
Preamble of Vienna Convention 1961 21
Clifton E. Wilson, ‘Diplomatic Privileges and Immunities’, American Journal of International Law,
1967, pp. 1-2
Introduction
13
seventeenth century as permanent embassies became well established and
ambassadors' actions centered on the embassy premises. The new theory had the
added advantage of offering protection to the ambassador's goods as well as his
person. The prior theory offered immunity to the ambassador, but not to his premises
or his possessions, a particularly sore point for many underfunded missions in that
era. According to the theory, all actions performed by the ambassador were
considered, legally, to have occurred in the emissary's home state within the control of
the home state's laws, police force and judicial system. The theory has been discarded
by modern scholars, most notably due to conceptual difficulties incurred by judges in
finding that the actions of a diplomat, although nominally on domestic soil, must be
considered to have occurred elsewhere. The theory also permitted substantial abuse,
such as the franchises du quartier established in seventeenth century Rome and
Madrid: entire areas surrounding the embassies in both cities which (utilizing the
broadest possible interpretation of the extraterritorial principle) were declared
immune from all police attention and in which commerce in illicit goods and services
predictably flourished.22
The concept of functional necessity dates at least to the seventeenth century,
although it did develop substantially until the nineteenth century, when the
extraterritorial theory began to break down. Functional immunity reflects the idea
that the diplomatic agent must have freedom of movement and communication in
order to perform his duties. One great advantage of this theory is that it may apply
equally to permanent embassies and ad hoc missions. It is thus well-suited to the
modern era, in which specialized negotiations are often conducted by non-diplomatic
personnel. The theory does not explain, however, why all diplomatic agents should
receive identical treatment. A short-term envoy's mission might be so critical and the
envoy's particular role within the mission so crucial that the sending state could not
possibly achieve its goals without full immunity, but the same need not always is true
for permanent representative within a large embassy.
1.5 Doctrine of Head of State Immunity
In the Law of Nations each state is entitled to dignity for the other member of
the family of nations, and accordingly each state is bound to confer honours and
22
Encyclopedia of public international law, 1995, p. 1029
Introduction
14
privileges on the head of the state. One of the more vexing topics in international law,
state immunity is fraught with complexity and uncertainty, which the normative
hierarchy theory does not adequately address. The theory operates conceptually on the
international law level, as a norm of international law, jus cogens, trumps another,
state immunity, because of its superior status. The theory thus assumes that state
immunity in cases of human rights violations is an entitlement rooted in international
law, by virtue of either a fundamental state right or customary international law.
However, both assumptions are false. State immunity is not an absolute right under
the international legal order. Rather, as a fundamental matter, state immunity operates
as an exception to the principle of adjudicatory jurisdiction.23
Moreover, while the
practice of granting immunity to foreign states has given rise to a customary
international law of state immunity, this body of law does not protect state conduct
that amounts to a human rights violation. These realities yield the important
conclusion that the normative hierarchy theory ignores that, with respect to human
rights violations, the forum state, not the foreign state defendant, enjoys ultimate
authority, by operation of its domestic legal system, to modify a foreign state’s
privileges of immunity. The International Court of Justice (ICJ) in Dem. Rep. Congo
v. Belg24
has held, after assessing various international agreements, that incumbent
heads of state also enjoy immunity as a matter of customary international law. But
Judge Van den Wyngaert, disagreed with the Court’s conclusion because there is
neither treaty law nor customary international law directly pointing out.
The doctrine of head of state immunity is currently vague and unsettled. No
consistent practice among nation states rises to the status of customary international
law. Because the doctrine of head of state immunity is not defined in a treaty, its
substance has been both defined by and analogized to the doctrine of sovereign
immunity and the more restrictive immunity granted to diplomats. Immunities law
still shields perpetrators of human rights abuses from lawsuits in various courts to an
unacceptable extent. The law remains uncertain.
23
Verlinden v. Central Bank of Nigeria, 461 U.S. (1983), pp. 480 and 486, Available at http://www.icj-
cij.org/icjwww/idecisions.htm (accessed on 20th may 2008) 24
(Int’l Ct. Justice, Feb. 14, 2002), 41 ILM 536 (2002), http;//www.icj-cij.org (accessed on 20th may
2008)
Introduction
15
1.6 Foreign Sovereign Immunity
The doctrine of foreign state immunity, like most legal doctrines, has evolved
and changed over the last centuries, progressing through several distinct periods. The
first period, covering the eighteenth and nineteenth centuries, has been called the
period of absolute immunity, because foreign states are said to have enjoyed complete
immunity from domestic legal proceedings.25
In Parlement Belge26
case, the Court
viewed that “each and every one state declines to exercise by means of any of its
courts, any of its territorial jurisdiction over the person of any sovereign”. And in the
case of Spanish Gov’t V/s. Lambège et Pujol, Cass27
the court held that “a government
cannot be subjected to the jurisdiction of another against its will, and that the right of
jurisdiction of one government over litigation arising from its own acts is a right
inherent to its sovereignty that another government cannot seize without impairing
their mutual relations”. The second period emerged during the early twentieth
century, when Western nations adopted a restrictive approach to immunity in response
to the increased participation of state governments in international trade. This period
was marked by the development of the theoretical distinction between acta jure
imperii, state conduct of a public or governmental nature for which immunity was
granted, and acta jure gestionis, state conduct of a commercial or private nature for
which it was not. This distinction rested on the growing notion that the exercise of
jurisdiction over acta jure gestionis did not affront a state’s sovereignty or dignity.
Since applying the public/private distinction proved difficult for many courts, the
court in Ibrandtsen Tankers v. President of India,28 has held that “The proposed
distinction between acts which are jure imperii (which are to be afforded immunity)
and those which are jure gestionis (which are not), has never been adequately defined,
and in fact has been viewed as unworkable by many commentators”. Some states,
particularly the common-law countries, developed a functional variation on the
restrictive approach in the 1970s and 1980s, replacing that hazy distinction with
national immunity legislations.
25
Lakshman Marasinghe, ‘The Modern Law of Sovereign Immunity’, Modern Law Review, 1991, p.
664–78 26 [1880] 5 P.D. 197, 217, http://www.echr.coe.int/eng/judgments.htm accessed on 20th March 2008 27
http://www.echr.coe.int/eng/judgments.htm accessed on 20th March 2008 28
446 F.2d 1198, 1200 (2d Cir. 1971)
Introduction
16
1.7 Doctrine of Diplomatic Immunity
Immunity has been a feature of diplomatic relations for thousands of years.
While the practice of listening to a messenger instead of killing him on first sight
probably dates to the earliest interactions between States, ancient Greece is the first
civilization with a record of systematic diplomatic immunity. Diplomatic immunity is
a form of legal immunity and a policy held between governments, which ensure that
diplomats are given safe passage and are considered not susceptible to lawsuit or
prosecution under the host country's laws.
Peoples have recognized the special status of foreign representatives already
since ancient times and therefore, some of the fundamental principles concerning such
representatives, and the diplomatic immunity are as old as the first civilizations.
Diplomatic immunity from criminal jurisdiction and other kinds of immunity granted
to diplomat still remain among the most problematic issues in modern diplomatic law.
Such special privileges have for long effectively protected diplomatic representatives
and other foreign officials from inference with their freedom, which may be attendant
upon penal proceeding the objective of which is the curtailment of financial or
personal liberty in the interests of punishment or deterrence. However, everyday
practice indicates that both states and diplomatic agents still have problems with
interpreting the relevant provisions of Vienna Convention on Diplomatic Immunity.29
Diplomatic law has continuously developed and also changed, but the vital
principles have survived that evolution. Nowadays diplomatic law has, in many
respects, become a unique part of public international law. A vast majority of states,
if not all, apply its rules every single day, as they are in diplomatic relations with one
another. But when taking into consideration such wide and extensive application of
diplomatic law, it is surprising to learn how exceptionally high the level of law-
obedience is among the relevant states. As the concept of diplomatic immunity
renders it virtually impossible for any authority to exercise its power over duly
appointed diplomatic agents, it has naturally caused many social problems. Many
principles of diplomatic immunity are now considered to be customary law.
29
United Nations Treaty Series, vol.500, 1964, p.95. http://www.un.org/ law/ilcb, (accessed on July
21, 2008)
Introduction
17
Diplomatic immunity as an institution developed to allow for the maintenance of
government relations, including during periods of difficulties and even armed conflict.
1.8 Scope of the Study
Diplomacy forms the most important division of peace in modern International
Law which has a significant part in the development of international trade and
relations. The development and importance given to diplomats in the new era has
posed many challenges like protection of diplomats during war time, the problem of
immunization and protection of privileges granted to diplomats under the international
law.
It has frequently been observed that there is generally good compliance with
the law of diplomatic immunity because here, almost as in no other area of
international law, the reciprocal benefits of compliance are visible and manifest.
Virtually every state that is host to a foreign diplomatic mission will have its own
embassy in the territory of the sending state. Every state wants its own diplomats
operating abroad, and its own diplomatic bags, embassies and archives, to receive
those protections that are provided by international law. Honoring those same
obligations vis-à-vis the diplomatic community in one's own country is widely
perceived as a major factor in ensuring that there is no erosion of the international law
requirements on diplomatic privileges and immunities.
Diplomats from the time immemorial have been facing innumerable problems
even though there are international conventions relating to protection of diplomats.
One of the important problems that have been faced by the diplomats during recent
time is that during war crises the first target of the people of alien state is to attack the
embassy and ambassadors. The study is to overview the origin and development of
diplomacy in international arena and to analyze the immunity and privileges granted
to the diplomats under the international and national level of different nations. The
study is focusing on the basis of international conventions.
The study will also analyze the pros and cons of the diplomatic immunity and
privileges as granted under the international conventions and also focuses on the
problems faced for its effective implementation and enforcement. The process of
research work will discuss the position of diplomats during the war and peace in
Introduction
18
recent times. The study is also dealing with the involvement of diplomats in regard to
espionage, smuggling, child custody, other violations, like rape, and even murder. The
study is restricted to immunities and privileges of diplomats as guaranteed in various
international conventions and philosophical foundations of international law.
1.9 Statement of Problem
The basic problems that this study sets out to unravel are rooted in the
conundrums in diplomatic and consular law. Notable of these are the question of
abuse of privileges and immunities by diplomatic agents and consular officers, which
the existing diplomatic and consular law has not sufficiently addressed. In a similar
vein it is the inability of the smaller nations of the world, to cope with the challenges
of diplomatic and consular practice today, added to these are other conundrums
relating to issues of inviolabilities, privileges and immunities of diplomats.
The question of whether diplomats should be fully immune from criminal
prosecution, no matter what the alleged crime, is one that is neither new nor free from
dispute. As a matter of international law and domestic law, the source of the immunity
and the extent to which it extends is quite clear. But with each new offense or
tragedy, far and apart as they may be, the public debate over diplomatic immunity
rears its ugly head once again.
The diplomats and staff of diplomats who have been given immunity from
certain acts under international conventions the diplomats have been harassed and
humiliated for various reasons. The diplomats and envoys have been facing problems
from the receiving state during war and also during peace time directly or indirectly.
On the basis of above brief note following problems can be posed:
• Personal inviolability and diplomatic immunity from criminal jurisdiction still
remain among the most problematic issues in modern diplomatic law.
• Problem of according immunity to non-diplomatic functions.
• The problem of inviolability of a legation’s premises;
• The increased number of serious crimes committed against diplomatic envoys
and diplomatic missions, such as murder and kidnapping;
• Attacks directed against the premises of legations;
Introduction
19
• Problem of moving freely in territory of the receiving states;
• Security of the diplomatic missions and there family in the receiving states;
• Problem relating to crimes committed by diplomats which comes under the
jurisdiction of the receiving state or the representing states;
• Problem of suing the diplomat and his family for civil and criminal wrongs.
• Problem relating to granting of asylum in the diplomatic premises in the
receiving state.
• Problem of states to curb the abuse of diplomatic immunity in domestic legal
frame work.
• Problem of balancing human rights violation and immunities of state and its
diplomats.
1.10 Question Posed
There are number of conventions which are made by the United Nations for
the protection of diplomats and their missioners. These diplomats and missioners
have been facing many problems. Along with the continuity of problem stated rising
of following questions would be appropriate.
• Looking at the sophisticated nature of contemporary international system, has
international law provided enough for substance of diplomatic practice?
• Looking at the peculiar problems of our world, especially the lopsided style of
resources allocation within the system, can smaller nations of the world cope
with the challenges of diplomatic and consular law?
• How can the conundrums in the existing law be filled to reflect the reality of
our dynamic world?
• Is there any need for permanent international missionaries to overview for the
working conditions diplomats?
• Are the international conventions and treaties enough to protect the diplomatic
immunities and privileges in the contemporary perspectives?
Introduction
20
• Should diplomats be granted absolute immunity from all liability in alien
state?
• Is there a need for a permanent dispute resolution body to resolve the problem
relating to diplomats?
• Whether the immunity and privileges granted to the diplomats of other state is
threat to sovereignty?
• Do we need modifications for the Vienna Convention, in connection with
jurisdiction of ambassadors in a new independent International Criminal Court
or the International Court of Justice (ICJ)?
• Does diplomatic asylum justified under international law?
• On and in what manner problems with reference to diplomats can be or should
be resolved?
• Due to controversial issues with regard to East West relations, differences of
opinion in connection with soft laws and hard laws and theories relating to
diplomatic relations, there are unprecedented problems have also underpinned
in the modern diplomatic relations among the states. If that is the case how
exactly these problems can be minimized?
1.11 Hypothesis
1. The problem of abuse of diplomatic immunity is clearly a complex and
multifaceted one. The range of crimes committed runs the gamut from the
relatively trivial (traffic violations), to the extremely serious (rape, murder,
and even slavery) in the receiving state. All proposed remedies have serious
drawbacks and none seems up to the task by itself, but a synthesis of proposals
might be quite effective. The Vienna Convention provides guidelines for
dealing with such abuses. The difficulty with such provisions is the lack of an
enforcement mechanism.
2. The diplomat's role has shrunk significantly during the twentieth century, but
his immunity and privileges granted to diplomats are unchanged from time
immemorial. Abuses of immunity that were tolerated in past centuries due to
the diplomat's important functions and duties need no longer be endured.
Introduction
21
International law should reflect this fact.
3. Diplomatic inviolability of premises has been misused to grant diplomatic
asylum to the persons who have committed crimes in the receiving state, even
though there is no universal accepted law for the same.
4. Taking advantage of the facilitated negotiations and enhanced transparency
generated by diplomat, developing countries would be able to perform more
powerful diplomatic activities and engage with developed countries on a more
level playing field than previously. The developing nations are economically
burdened because of large size of diplomatic legation and absolute immunity
and privileges granted to diplomats against their local laws.
5. Although we find many human rights philosophies and municipal law
governing diplomatic immunities and privileges there has been gross violation
of these immunities and privileges granted to them. The states are finding
difficult to bring balance between its human rights protection and granting of
diplomatic immunity.
1.12 Research Significance
Diplomacy has been developed as a result of policy awareness among the
states with a view to set it right problems between themselves. In recent scenario there
are many aggravated problems have leveled against these messengers although they
are working for their motherland. Studies with references to these working groups for
the nation concern are really helpful. This work will reflect in near future. This
research work will be able to focus on some of the theories pertaining to diplomatic
relations. The process of the work is focusing on the basis of methodologies which
will be benefited for states. By reading this research work one can get enriched
knowledge over the diplomatic privileges and immunity provided to diplomatic
agents. Further, the research will helpful from the perspective of human rights
enforcement. Policy makers, and ambassadors, ministers for external affairs of
various countries, academicians and persons those who are involved in this field
would be benefited.
Introduction
22
1.13 Methodology
This study has gone through some of the research tools. The major purpose of
this is to identify problems being faced by the diplomats. Here, reflective thinking
over problems is highlighted at the appropriate places in this thesis. It has attained
scientific and legalistic truth. The findings and suggestions are made under this thesis
are based on primary as well as secondary sources of legal research. Analytical,
critical, comparative and other aspects of legal research have gone through.
Since the work is based on international law and some referred state
legislations, of course, are reflected. From the perspective of giving concrete solutions
regarding these contemporary issues of diplomatic immunities and privileges The
Vienna Convention on Diplomatic Relations 1961, The Vienna Convention on
Consular Relations 1963, The Convention on Special Mission 1969, Privileges and
Immunities of the United Nations 1946, Privileges and Immunities of the Specialized
Agencies 1947, Convention on the Prevention and punishment of crimes against
internationally protected persons including diplomatic Agents 1973, United Nation
Charter 1945, The British State Immunity Act, 1978, The South African Foreign State
Immunity Act, 1982, The U.S. Foreign Sovereign Immunity Act, 1976 and
Diplomatic Relations (Vienna Convention) Act, 1972 are treated as primary sources
of research.
Secondary data like books, journals, periodicals, decisions of judicial
institutions and process have been keenly observed.
1.14 Review of Literature
A review of literature related to this research work must necessarily
commence from the very concept of diplomacy and diplomatic immunity and
privileges. The scholars of diplomacy have made great contribution towards
development of diplomatic law.
Staw, A Guide To Diplomatic Practice, (1932), this is a work that would be
of service alike to the international lawyer, the diplomatist and the student of history,
and remarked that it was unique with regard to its method of treatment of the subject,
as well as the selection of the topics discussed and in the amount of original research
which it embodied. The work deservedly attained a high reputation.
Introduction
23
Grant V. McClanahan, Diplomatic Immunity: Principles, Practices,
Problems, (1976), in this work the author analyses the principles and practice of
diplomatic immunity as they affect the conduct of diplomacy and has analyzed the
contemporary practice in any field of diplomacy, this work analyses is proof of the
fact that practitioners can make a distinctive contribution to this emerging field, and
that the author has a keen eye for new developments in diplomatic practice.
Adam Watson Diplomacy the Dialogue between States, (1984) in this work
he has reflected the long preoccupation with the behavior of independent states
involved with one another in an interlocking system. What-without giving up their
independence, their adherence to their principles and the pursuit of their interest- can
such states achieve together by means of constrictive dialogue. Further the work has
given importance to the nature and potential of diplomacy, now and in the past. In his
work the Adam has tried to discuss the main diplomatic aspect of the second, the
present achievement, though it is hard to see the forest from the inside, and almost
discussed all current international affairs is rapidly overtaken by events as new trees
come into view in what Dante called a ‘selva oscura’ where every way is ‘smarrita’.
This work further includes the broad sense in which the term diplomacy is used. This
work of Adam relating to diplomacy is both prescriptive and restrictive. It is
prescriptive in the sense that, it prescribes the requirement for becoming a diplomat.
Again the work is restrictive in the sense that it restricts the question of being a
diplomat to only those who are intelligent and tactful. But one cannot be denied being
a diplomat on account that he is unintelligent and tactless.
Harold George Nicolson, Diplomacy, (1988), it is thought that the whole
term's list of work gave more actual fact about the essentials of diplomacy than this
slender volume by one of England's most cultured and brilliant diplomats and men of
literature. Author has given the reader a bird’s eye view of the history of diplomacy;
he has defined his terms succinctly.
Garrett Mattingly, Renaissance Diplomacy, (1988), in this work the author
as a historian's, has analysed the history and origins of diplomacy, tracing the
diplomat's role as it emerged in the Italian city-states and spread northward in the 16th
and 17th centuries. An important work carefully and elegantly written and which has
more creating knowledge of the history in the present situation.
Introduction
24
Henry Kissinger, Diplomacy, (1994), offers a panoramic view of history and
a description of firsthand diplomatic encounters, the former Secretary of State
describes his ideas about diplomacy and power balances, showing how national
negotiating styles influence outcomes. It is perfect masterpiece for those who want to
pursue their knowledge in Diplomacy and political labyrinths. It describes perfectly
the political situation especially in 20th
century. He also has analyzed about several
very important political events and draws brilliant pictures of political leaders. Henry
Kissinger describes how the art of diplomacy has created the world in which we live,
and how America's approach to foreign affairs has always differed vastly from that of
other nations. Brilliant, controversial and profoundly incisive diplomacy stands as the
culmination of a lifetime of diplomatic service and scholarship. His views are vital for
anyone concerned with the forces that have shaped our world today and will impact.
Geoff Berridge, Diplomacy Theory and Practice, (1994), his work has
made an analysis on international diplomacy, including its legal regulation. The
interests of the series thus embrace such diplomatic functions as signaling, negotiation
and consular work, and methods such as summitry and the multilateral conference.
His work deals comprehensively with diplomacy narrowly conceived, that is, as the
conduct of relations between sovereign states through the medium of officials based at
home or abroad. It is work on the processes and procedures of the diplomatic art that
focuses chiefly on the recent past but is rooted in history, and it draws on evidence
and examples from across the world. It is the only work on diplomacy that has a
major emphasis on negotiation (the most important function of diplomats), as well as
a highlights on unconventional diplomatic methods.
Linda Frey, Marsha Frey, The History Of Diplomatic Immunity, (1999),
the work traces the history of diplomatic immunity and evolution of diplomatic
immunity, a convention embedded in the practices and precedents of the past. Unique
in its coverage, this work analyzes the practice from ancient times to the present and
in various cultures, both Western and non-Western. The work has followed the trail of
certain privileges and immunities, setting them within a historical and cultural
context; they examine how, in some cultures but not others, certain practices became
precedents and some courtesies hardened into rights. The authors show how certain
principles common to all civilizations buttressed the principles of diplomatic
Introduction
25
immunity; discuss the importance of various theorists both ancient and modern;
examine the significant domestic legislation and international conventions; analyze
celebrated instances of the violation of diplomatic immunity; study policy decisions
by governments; study the influence of certain judicial decisions; and analyze the
various rationales for such privileges. The work has great impact on present
international regime and acts has guide in articulating international relations.
Grant Sutherland, Diplomatic Immunity, (2002), this work highlights
diplomatic immunity, freedom from arrest and submission to police regulations
usually accorded by international law to diplomatic agents. From the most exciting
writer of international thrillers since Robert Ludlum comes a riveting tale of intrigue
that propels us into the heart of the United Nations. Here the author has conscience
and loyalty will collide in one man's desperate race against time. Diplomatic
immunity shock waves ripple through the UN at the stunning news a special envoy
has been murdered in the basement
Wilfried Bolewski, Diplomacy and International Law in Globalized
Relations, (2007), Diplomacy is transforming and expanding its role as the method of
interstate relations to a general instrument of communication among globalized
societies. Adapting to globalization the practice of diplomacy is shared by non-state
participants, thus becoming privatized and popularized. With the strife for common
values, the finality of international interactions moves beyond national interest
towards communitarians. International law governing foreign relations can be
strengthened through judicial review by national courts. This work of Bolewski's
explores the changing role of diplomacy in a globalizing world. It serves as an eye
opener for anybody interested in the practice of international negotiations, written by
one of the most experienced senior diplomats of the German Foreign Service.
Further, the work is a wide-ranging and highly accessible overview, informed by the
diplomatic studies literature and many years of experience as a diplomat.
Barston, Modern Diplomacy, (2007), in this work modern diplomacy is
organized around five broad areas of the nature of diplomacy; diplomatic method of
negotiation; the operation of diplomacy in specific sector international trade
institution international finance, environment; natural disaster and international
conflict.
Introduction
26
Joseph M. Siracusa, Diplomacy: A Very Short Introduction, (2010),
Diplomacy means different things to different people, the definitions ranging from the
elegant ("the management of relations between independent states by the process of
negotiations") to the jocular ("the art of saying 'nice doggie' until you can find a
rock"). An internationally recognized expert, this lively volume introduces the subject
of diplomacy from a historical perspective, providing examples from significant
historical phases and episodes to illustrate the art of diplomacy in action, highlighting
the milestones in its evolution. This work shows that, like war, diplomacy has been
around a very long time, at least since the Bronze Age. It was primitive by today's
standards, there were few rules, but it was a recognizable form of diplomacy. Since
then, diplomacy has evolved greatly, to the extent that the major events of modern
international diplomacy have dramatically shaped the world in which we live.
1.15 Chapterisation
Chapter 1: Introduction
This chapter has dealt with the introductory part of the research work. In this
chapter background of the study will be put fourth by applying certain historical
pathways. Further, it focuses on certain questions. This process of posing of
questions is not an end itself these questions will have to be answered in the
respective chapters meticulously and keenly. In a similar way definition, meaning,
scope of the research work, problem stated, and hypothesis and research significance
are discussed.
Chapter 2: Evolution of Diplomatic Immunity
This chapter has analysed the historical origins and development of diplomatic
immunity in Ancient India, Greece and European prospective, further lays emphasis
on the importance and need or diplomatic immunity. The development of diplomatic
immunity led to the codification of the Vienna Convention of diplomatic relations
1961, Consular Convention 1963, Convention on Special Missions 1969, Convention
on protection of diplomats 1973 and Convention against taking Hostage 1979. In
addition a brief look at what immunities is granted United Nations officials under the
garb of International immunity. Finally, State immunity will be considered to
differentiate it from diplomatic immunity and its role in international law.
Introduction
27
Chapter 3: Diplomatic Functions and Duties
This chapter has examined the different formalities and the various functions
of diplomatic missions, diplomats, staff and their families. In so doing the primary
areas of abuse will be identified. Diplomatic missions’ functions, commencement and
termination will be considered and they will be differentiated from special missions
that are formed on a temporary basis. The formalities include classification of the
head of missions, different types of staff and the commencement and termination of
their duties.
Chapter 4: Immunity and Privileges of Diplomats and Their Family and Staff
This chapter has given the clear picture regarding the meaning of immunities
and privileges. Extraterritorial theory, representation character of diplomat and
interest of functional theory are discussed. It poses questions about the necessity of
immunity and the right of individuals and State to prosecute offenders. Each section
will discuss the various immunities and privileges and provide instances where abuse
has taken place, indicating areas where there is a need to limit immunities. The
Vienna Convention does provide certain remedies against abuse, including declaring
diplomats, their family or staff persona non grata, asking the sending State to waive
immunity and prosecuting in the jurisdiction of the sending State. All of these
remedies will be discussed and specific areas of weakness are indicated.
Chapter 5: Diplomatic Asylum
This chapter explored the emergence of diplomatic asylum, how it adapted in
response to different needs over time, in particular the needs of states, and the way in
which the diplomatic asylum. It begins with an outline of the origins of asylum, and
then moves chronologically through European history, chronicling the development of
the state and its use of diplomatic asylum. Further this chapter will enlighten about
what is diplomatic asylum and its pro and cons and its effect on immunity that is
granted to the diplomats in their premises. It critically examines the inter-relations
between diplomatic asylum and diplomatic immunity in the past and present.
Chapter 6: State Practices Relating to Diplomatic Immunity
This chapter has analysed four Governments’ responses to the question of
diplomatic immunity, the UK, US India and the Republic of South Africa. Legislation
Introduction
28
from these States will be considered with particular reference to the curbing of abuse
of immunity. It will then be judged whether certain UK and USA mechanisms are
successful and could be implemented within a South African and Indian setting.
Chapter 7: Balancing of Human Rights and Diplomatic Immunities
The chapter has analyzed the violation of human rights in the garb of
immunity and privileges guarding the diplomats. Further will analyses the impact of
abuse of diplomatic immunity on human rights. The chapter further analyses the
problem of receiving state in bringing balance between the granting of immunity to
diplomats and protection of human rights of its subjects.
Chapter 8: Conclusions and suggestions
In this chapter, conclusions have been drawn based on the previous chapters
meticulously and keenly. In a similar vein, recommendations and suggestions are
made. Also considers the mechanism by which abuse will be limited. These
suggestions include amending the Vienna Convention, the use of the functional
necessity theory, bilateral treaties and a proposal to establish a Permanent
International Diplomatic Criminal Court. Finally, the question of whether diplomatic
privileges and immunities can be practically limited is addressed.