Diplomatic Privileges and Immunities

Definitions and main concepts

Let us start by defining privileges, immunities, and facilities. They are often used interchangeably or with an overlap in meaning, and this leads to the risk of creating confusion. Satow provides the key distinction:

…a privilege denotes some substantive exemption from laws and regulations such as those relating to taxation or social security, whereas an immunity does not imply any exemption from substantive law but confers a procedural protection from the enforcement process of the receiving state (Satow, 2009, p. 121).

In other words, privileges exempt diplomats from some laws (e.g., the law that all citizens should pay taxes) but not all laws (e.g., the law that theft is prohibited). Immunities, in contrast, prevent legal processes against diplomats. This distinction is very practical. If a diplomat commits theft and avoids a court trial due to immunity, it does not mean that they cannot be prosecuted later on (e.g., during a subsequent visit to the country after the expiry of diplomatic immunity).

Privileges

Diplomatic privileges refer to the exemption from certain laws and regulations of the receiving state, mostly of a fiscal character. These are privileges to the extent that others, especially citizens of the receiving state, do not enjoy them. Exemption from taxation by the receiving state is a major example. Others are the inapplicability of certain social security laws of the receiving state and exemption from civic duties.

Immunities

Diplomatic immunities are exemptions from the jurisdiction of the receiving state. Immunities are granted to states and international organisations, their organs, and their agents (and their dependents), and to activities carried out on their behalf. Contrary to common perception, immunities relate to both criminal and civil jurisdiction. The provisions on inviolability, the giving of evidence, and the execution of judgments in civil proceedings are examples of this. In practice, we distinguish between:

1. immunities granted to entities, organs, and their premises;
2. immunities granted to individual agents and their dependents; and
3. immunities granted to their activities.

Whereas in the past, immunity was seen as a total concept – with no limits attached to it – it is presently seen as a precisely circumscribed concept. Immunities are granted for a specific purpose, limited to the requirements that fulfil that purpose; hence, for example, the rule that personal immunity is not accorded to the individual as such but to the state or entity on whose behalf the individual acts. In modern times, immunity is often said to be limited to official activities that clearly involve the state exercising its sovereign functions, or an organisation in performing the purposes for which it was established. We will expand on this significantly throughout the course.

Facilities

The receiving state extends diplomatic facilities as a courtesy to make it easier for diplomatic missions and their agents to carry out their duties. Requirements such as assisting the mission in finding suitable premises, facilitating and protecting free communications, and allowing for unrestricted travel within the receiving state, are examples of facilities. However, these facilities are granted as international legal obligations of the states, pursuant to the VCDR.

Evolution of Diplomatic Privileges and Immunities

We can trace the first privileges and immunities to the early days of human communication and attempts to solve conflicts in non-violent ways. The very beginning of diplomacy is usually associated with granting diplomatic privileges and immunities. Figure 1 represents the frequently made statement that diplomacy began when people first realised that it was better to hear the message than to eat the messenger.

Figure 1: The beginning of diplomacy

Harold Nicolson (1998, p. 2) highlights the importance of privileges and immunities when he says:

It must soon have been realised that no negotiation could reach a satisfactory conclusion if the emissaries of either party were murdered on arrival. Thus, diplomatic immunity was the first principle to become firmly established.

A brief historical survey shows the evolution of privileges and immunities up to modern times.

Prehistory

The institute of privileges and immunities occurred among the Australian aborigines as well as in the Institutes of Manu. The Institutes of Manu are archaic Hindu codes dating from 1500 BCE, according to which an arriving guest should receive a place to sit, water, and some properly seasoned food.

The guest coming after the sunset may not be expelled by the master of the house; should he come at a wrong time, may he not stay unfed…Guests should be given a place to sit, premises, bed, attention and respect: higher – to the higher, lower – to the lower, equal to the equal (Van der Toorn, 1995, p. 365).

Ancient World

From the ancient Near East, the first written indications of privileges and immunities appear in the correspondence between Hattusili III and Ramses III. The Amarna letters – the main sources on diplomacy in this period – also recognised the right of a messenger to swift and unhindered passage (Cohen and Westbrook, 2000; Elgavish, 2000).

In ancient India, rulers did not have permanent ambassadors; instead they relied on envoys who delivered messages, and on negotiators (in the European system they were called plenipotentiaries) authorised to work out or modify agreements on their masters’ behalf. Normally filled by Brahmins (persons of the highest caste), the positions enjoyed a degree of immunity in addition to the protection the individuals enjoyed as envoys or heralds. The Arthashastra says that

…envoys are the mouthpieces of kings. They must carry out their instructions and it would be wrong to put them to death even if they were outcasts. How much less reason is there then for putting a Brahmin to death? (Rana, 2000)

In ancient Greece, the oldest form of international relations rested on the concept of proxenoi or hospitality. This was a kind of permanent representation, consular and informational, rather than diplomatic. Proxenoi represented another city state, clan, tribe, or state within their own. The proxenos of a certain city enjoyed within it certain rights and privileges concerning trade, taxation, and the law, as well as various other honorary benefits. The proxenos – in return for having such privileges – also had certain obligations towards the city that had shown him hospitality. Thus, in his own city, he performed a variety of favours for the city whose hospitality he had enjoyed. Legations would first contact their proxenos and then conduct their negotiations through him, counting on his help. The institution of proxenoi became the basis of all future international relationships in the ancient world, and the English word proxy derives from the word and office.

Diplomacy played a significant role in Rome’s fight for hegemony in Italy (between the fourth and third century BCE) and during the Punic Wars (between the third and second century BCE) against Carthage, its main rival in the western Mediterranean. Like other states of the ancient world, Rome did not possess permanent diplomatic representatives akin to today’s envoys and consuls. Legations played a major part in diplomatic life. They enjoyed special privileges and the position of envoy was considered sacred. Murdering or insulting an envoy often served as a motive for war. In Rome, customs were established to receive envoys. During the Empire (from 27 BCE until 476 AD), the emperor appointed all envoys. The envoys submitted reports to the emperor, who then chose between war and peace.

Renaissance Diplomacy

The diplomatic system established among Italian city-states is considered the first organised diplomatic system with permanent diplomatic missions, diplomatic archives, and other elements of modern diplomacy. The core element of this system was the institution of diplomatic privileges and immunities. Diplomats needed protection because they had a very delicate status. Since they were thought of as spies, local inhabitants were not allowed to discuss public affairs with foreign diplomats. As well, diplomats were not allowed to possess any property in the host country. A diplomat was also forbidden to take his wife with him, as she might indulge in gossip!

Modern Diplomacy

After the Renaissance, the institution of permanent diplomatic missions grew rapidly. The first ministry of foreign affairs was established in France in 1626. Countries established more regular and organised interactions through diplomatic missions. The practice of diplomacy led to the Congress of Vienna in 1815, which established an institutional framework for modern diplomacy that has not changed substantially since. The Congress of Vienna established classes of diplomatic representation (ambassadors and papal legates, ministers plenipotentiary, ministers resident, and chargés d’affairs). It also introduced diplomatic precedence, a rank depending on the class of diplomatic representative and the date at which an envoy presented his letters of credence. Legally speaking, the Congress codified customary diplomatic law. Many institutions from the Congress of Vienna were included in the Vienna Convention on Diplomatic Relations of 1961, which is the main source of current diplomatic law.

Several attempts have been made to codify the principles of diplomatic law. The first, although rather limited in scope, dates back to the Congress of Vienna in 1815 and the League of Nations in the 1920s (United Kingdom, 1985, p. viii). However, the two most important documents before the 1961 Vienna Convention on Diplomatic Relations were the 1928 Havana Convention on Diplomatic Officers and the Harvard Research Draft Convention on Diplomatic Privileges and Immunities of 1932.

References

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Grotius H (1925/1625) De jure belli ac pacis. Translated by Kelsey FW. Volume 2 of Scott JB [ed] Classics of International Law. Oxford: Clarendon Press.

International Court of Justice [ICJ] (1980) United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran). Summary of the Judgment of 24 May 1980. Available at
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Nicolson H (1998) The Evolution of Diplomatic Method. Leicester: University of Leicester Press.

Rana KS (2000) Inside Diplomacy. New Delhi: Manas Publications.

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United Kingdom. House of Commons Foreign Affairs Committee (1985) The Abuse of Diplomatic Privileges and Immunities, 1984–1985. London: Parliamentary Papers, Volume XXV.

United Nations (1961) Vienna Convention on Diplomatic Relations. Available at
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United States Supreme Court (1812) The Schooner Exchange v. McFaddon. 11 US 116 (1812). Available at
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Van der Toorn K (1995) Migration and the spread of local cults. In van Lerberghe K and Schoors A [eds]. Immigration and Emigration within the Ancient Near East: Festschrift E. Lipinski. Leuven: Peeters Publishers, pp. 365–377.