– By Samraddhi Saxena
– Intern IPPCS’21
Abstract
The purpose of this analysis is to assess whether foreign diplomats are appropriately protected under international law. Due to the development in new forms of common transnational crime, the security of foreign diplomats has become increasingly prominent. There have been numerous kidnappings, assassinations, and other brutal assaults on the lives of foreign officials in various parts of the world. It has become more widespread, posing a severe threat to international relations as a whole. As a result, different conventions and Treaties had set forth rules that grant immunity and ensure the protection of foreign diplomats during transports, official meetings, functions, stays, and many more.
Introduction
Foreign officials are responsible for the development, formulation, and implementation of a country’s policy. They ensure a diplomatic presence in foreign nations representing their country’s policy. They have been regarded as crucial individuals in formulating relations between the countries. The diplomatic institution has long been considered to be critical to the smooth operation of international relations. Because of the nature of the work that foreign officials do, they are granted immunity. They are granted exemption from specific procedures and laws of the country in which they are present due to their work, allowing them to execute their tasks without being hampered by regional and cultural variations. Local courts do not have authority over foreign authorities. Immunity is granted in both civil and criminal courts, as well as in administrative proceedings.
Private International Law
When domestic law of various countries clashes over private transactions, Private International Law controls the choice of law to use. The term “conflict of laws” is occasionally used to describe it. The extent of private international law differs from one country to the next, and each jurisdiction has its own set of rules. However, the exercise of a court’s personal authority over a particular partner and the enforcement of any judgement that goes beyond the nation’s power under which it was entered is also covered by private international law.
Foreign Officials or Diplomatic Agents
Diplomatic agents or foreign officials are individuals granted the task of fulfilling negotiation and finding a diplomatic achievement for the sending and receiving country. The chief of the mission or a member of the foreign embassies of the mission is referred to as a “diplomatic agent.” Diplomatic agents/foreign officials are those who serve as representatives of their respective governments in foreign countries.
Article 14 of the 1961 Vienna Convention on Diplomatic Relations separates diplomatic agents into three classes, namely;
- Ambassadors accredited to head of State.
- Envoys, ministers accredited to the head of State.
- Charges d’ Affairs accredited to Ministers of Foreign Affairs.
The operations of diplomatic agents are divided into six categories by the Convention. They are: representing the sending State in the receiving State; protecting the sending State’s and its nationals’ interests in the receiving State, within the bounds of international law; Negotiating with the receiving State’s government; determining the conditions and developments in the receiving State using all legal means, and reporting to the sending State’s government; Promoting and fostering cordial relations between the sending and receiving countries, as well as their economic, cultural, and scientific ties.
Protection of Foreign Officials under Private International Law
Long before international agreements codified the need of the receiving State to safeguard diplomatic agents, Roman law recognized the obligation of the State to take all necessary means to ensure the safety of the foreign representative.
Foreign officials will be afforded greater security by the country to which they are dispatched. This extra attention can be achieved by implementing appropriate procedures, which may vary from State to State. This usually begins with taking proactive actions to guarantee the safety of officials, such as warning officials of any danger or attack that could put them in danger, as well as regular police inspection of the environment and other similar procedures.
Diplomats are granted special privileges and immunities by the Vienna Convention on Diplomatic Relations of 1961. They must carry their official tasks without interference or limitations from the outside world. The Vienna Convention established international law’s norms on diplomatic relations, privileges, and immunities (Immunity, Diplomatic) Which are granted to the diplomatic envoys or agents. Accordingly, Article 22 established a customary norm of international law that “the mission premises should be inviolable.” Similarly, The diplomatic agent has inviolability immunity under Article 29 Of the agreement. The treaty declares the mission’s documents and archives and its official communications and private home, private communication, and property of the diplomatic agent to be inviolable.
The Vienna Convention and the Convention on Special Missions both say unequivocally that the receiving State is responsible for protecting foreign officials, stating that the receiving state “must take all appropriate actions to avoid any attack on their persons, freedom, or dignity.” As a result, diplomatic missions and diplomatic agents are protected on two levels. First, the government must refrain from interfering with the mission’s operations or the diplomatic agent. Second, the receiving State is responsible for ensuring that no one on its territory interferes with the mission’s premises or the diplomatic agent’s person.
The Convention to Avoid and Punish Terrorism in the Form of Crimes Against Persons and Other Forms of International Extortion of International Importance imposes a general obligation on contracting states to work together to prevent kidnappings, murders, and other attacks against foreign officials. “The contracting states collaborate among themselves to prevent and punish acts of terrorism, especially kidnapping, murder, as well as other assaults against the life or physical integrity of those individuals to which the state has a legal duty to ensure under international law,” according to the first article of the Convention. According to article 2 of the Convention on the Prevention and Punishment of Torture, each state party shall make the following acts criminal under its domestic law: (1) a murder, kidnapping, or even another attack on an internationally protected person’s person or liberty; (2) a violent attack on an internationally protected person’s official premises, private lodging, or mode of transportation likely to harm his person or liberty; (3) a threat to commit such an attack; (4) an attempt to commit any such attack; and (5) an act composing participation as an internationally protected person.
It should be highlighted that international law’s special protection covers the security of internationally protected persons and severe penalties for offenders. In terms of the special protection component, it should be underlined that ensuring that States legislate practical consequences for acts committed against internationally protected persons under their municipal legislation is an efficient approach to achieve such protection.
States may enact legislation or make special provisions for foreign officials’ autonomy violations, circumventing penal codes, press freedom laws, and other similar regulations. The internal codification specifies the appropriate penalties for those who commit offences against foreign government personnel. Apart from providing security and police protection to foreign officials, the host state also has a responsibility to provide justice by prosecuting offenders who commit crimes against them. The receiving country may apply special sanctions or heightened punishment for specific misdeeds while punishing offenders who commit such crimes.
Conclusion
Diplomatic immunity is essential for the promotion of amicable and good ties between countries. The Vienna Convention on Diplomatic Relations is often recognized as the foundation of successful international relations. It gives foreign officials the protection they need to perform their obligations as the Head of State’s envoy. Although officials’ rights and privileges are not unconditional, they might be surrendered under specific circumstances.
References
Diva Rai, “Diplomatic Immunity: Everything Important You Should Know About” (iPleaders May 14, 2020) <https://blog.ipleaders.in/diplomatic-immunity-everything-important-you-should-know-about/#:~:text=Diplomatic%20immunity%20is%20a%20rule> accessed September 13, 2021.
Caitlin Hunter, “LibGuides: Private International Law: Introduction” (libguides.law.ucla.edu October 22, 2020) <https://libguides.law.ucla.edu/privateinternational> accessed September 14, 2021.
Ayush Verma, “Public International Law v. Private International Law” (iPleaders August 26, 2020) <https://blog.ipleaders.in/public-international-law-v-private-international-law/> accessed September 14, 2021.
Article 1(e), Vienna Convention on Diplomatic Relations, 1961.
The Vienna Convention on diplomatic relations, 1961.
Article 3, Vienna Convention on Diplomatic Relations, 1961.
Holger P Hestermeyer, “Vienna Convention on Diplomatic Relations (1961),” Max Planck Encyclopedias of International Law [MPIL] (Oxford Public International Law Search 2009).
Article 22, Vienna Convention on Diplomatic Relations, 1961. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the task.
Article 29, Vienna Convention on Diplomatic Relations, 1961. The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and take all appropriate steps to prevent any attack on his person, freedom or dignity.
Franciszek Przetacznik, ‘The Protection of Foreign Officials in the United States code’ (1975) 9 Int’l L 121
Clyde Eagleton, ‘Responsibility of the State for the Protection of Foreign Officials’ (1925) 19 Am J Int’l L 293
Ibid
Franciszek Przetacznik, ‘The Protection of Foreign Officials under International Law’ (1980) 9 Anglo-Am L Rev 177
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