Diplomatic Immunity

• The Vienna Convention on Diplomatic Relations of 1961, and Vienna Convention on Consular Relations of 1963 are the two rules that govern diplomatic immunity. These were framed after World War II to formalize the customary rules and make their application more uniform.

• Diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country’s courts and thus cannot be prosecuted no matter how serious the offense unless their immunity is waived by the sending state.

• Vienna convention 1961 :-

• The treaty was adopted on 18 April 1961, by the United Nations Conference on Diplomatic Intercourse and immunity held in Vienna, Austria, and first implemented on 24 April 1964
• International treaty that defines a framework for diplomatic relations between independent countries
• Specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by the host country , known as diplomatic immunity
• The treaty is an extensive document, containing 53 articles.
• Article 22. The premises of a diplomatic mission, such as an embassy, are inviolate and must not be entered by the host country except by permission of the head of the mission. Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property. Article 30 extends this provision to the private residence of the diplomats.  

                                                                       

• Vienna convention 1963 :-

•   A framework for consular relations between independent countries.
•  A consul normally operates out of an embassy in another country, and performs two functions:

1.     Protecting in the host country the interests of their countrymen, and
2.     Furthering the commercial and economic relations between the two countries.

• A consul is not a diplomat, but they work out of the same premises, and under this treaty they are afforded most of the same privileges known as consular immunity
• This convention guarantees freedom from detention until trial and conviction, except for “grave offenses.”
• In March 2005, the United States pulled out of the Optional Protocol to the Convention, which allows the International Court of Justice to have compulsory jurisdiction over disputes arising under the Convention. 

•       The Saga of Devyani Khobragade:-  

• She was Acting Consul General in New York
• Accused of fraud visa charges and underpaying maid
• Arrested and strip searched by U.S Marshals

(/* For detailed case history : http://www.thehindu.com/news/international/world/laffair-khobragade-a-tale-of-two-narratives/article5479354.ece */)

 

According to U.S State Department handbook: 

“Consular officers have only official acts or functional immunity in respect of both criminal and civil matters and their personal inviolability is quite limited. Consular officers may be arrested or detained pending trial only if the offense is a felony and that the arrest is made pursuant to a decision by a competent judicial authority (e.g., a warrant issued by an appropriate court). They can be prosecuted for misdemeanors, but remain at liberty pending trial or other disposition of charges. Property of consular officers is not inviolable. Consular officers are not obliged to provide evidence as witnesses in connection with matters involving their official duties, to produce official documents, or to provide expert witness testimony on the laws of the sending country. Absent a bilateral agreement, the family members of consular officers enjoy no personal inviolability and no jurisdictional immunity of any kind.

• U.S Violations of Vienna convention:

• Invoked the 1961 pact two years back(2011) when CIA contractor Raymond Allen Davis was being tried for murder in Pakistan.

• Davis was released after he paid the families of the two men killed $2.4 million

• Nicaragua case -1980’s

• The ICJ (International court of Justice) held that Washington violated international law both by supporting the contra in their insurrection against the Nicaraguan government and by mining Nicaragua’s harbors.

• U.S refused to participate in proceedings and blocked enforcement of ICJ’s judgment by UNSC . Thus depriving any compensation for Nicaragua

• Arguments :

1. For : 

• Everyone irrespective of the cadre should obey law of land
• India charged of modern slavery : ill treatment of domestic helps

1.  Against :

• U.S conducting in unilateralist approach.
• Can a Wage dispute between a consul and her domestic help qualify as a grave offence?
• U.S itself has violated convention in Pakistan , Libya and Nicaragua ( cases)
• Compared with China setting up of ADIZ(Air defense identification zone).