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.