Rights Available to Ambassadors

Aryan Grover

An ambassador is an accredited diplomat, who is sent by a state as a permanent representative of that state in a foreign country. The Vienna Convention on Diplomatic Relations reserves for them the highest diplomatic rank. The respect which is given to the sovereign state is also accorded to their representatives, and especially the ambassadors, who are representing the state in the first degree. Therefore, the ambassadors of any state are highly respectable individuals, having several rights, privileges, and immunities to ensure their well being and smooth execution of their responsibilities.

The ambassador is responsible for maintaining diplomatic relations and to uphold and protect their country’s national interests in the state where they are posted. They are on a “mission”, which they are also the head of, popularly known as the embassy. This job involves handling issues concerning individuals of their state who are visiting the country where they are posted for various reasons, providing updates on a regular basis to the home country about important events in the country of posting, as well as negotiating agreements between their own country and the country of posting. They also take care of critical issues that might arise from time to time.

Rights of the Ambassador

The ambassador of any state has wide-ranging rights and powers, which are granted by the foreign government. These are specified in their credentials and documents of introduction, which are submitted to the foreign government itself. Apart from the basic political negotiations, the ambassadors can also initiate legal proceedings on behalf of their country and defend suits instituted against it. In India, the powers of these officials are governed by The Diplomatic Relations (Vienna Convention) Act of 1972, which gives effect to the Vienna Convention on Diplomatic Relations 1961, which lays down the rights of the ambassadors. The rights laid down here put the ambassador in a position of great power, and come within the ambit of what is known as Diplomatic Immunity.

What is Diplomatic Immunity?

Diplomatic Immunity is the principle of international law which limits the control that can be exercised by police officers and judges of the receiving state on the officials of foreign governments and international organisations. They cannot be detained by the police or arrested, and neither can their properties and houses be searched or seized. Article 31 of the Vienna Convention goes as far as to provide blanket protection to the ambassadors from criminal, civil, and administrative jurisdiction of the receiving state.

A real life illustration of diplomatic immunity in play can be seen in the arrest of Mahmood Akhtar in 2016 on alleged charges of spying. Mahmood was a staff under Pakistan’s High Commission in India, who had possession of classified defence documents. However, Mahmood was let go when he invoked Diplomatic Immunity. It is pertinent to note here that Mahmood was only a low level staffer in the High Commission, which only goes to show how powerful the rights of the actual ambassador are, making them virtually untouchable^[1].

Why is it needed?

The need for diplomatic immunity can be best explained through theories that have been put forward by international jurists, namely:

According to the Representative Character Theory, the receiving state should deal with representatives of other states in a fashion similar to how it treats the sovereign state itself. Thus, immunities are provided based on the idea that an attack on the ambassador is an attack on the sovereign itself as they share the same blood within themselves.
Next is the Functional Necessity Theory, a highly practical theory, according to which diplomatic agents can perform their functions in other countries successfully only if they are shielded and protected with immunity and privileges in the receiving state. This view is also reflected in the Preamble of the Vienna Convention.
The Reciprocity Theory lays down that favours, penalties, and benefits granted by one state to the diplomats of another state should be returned or reciprocated with dignity and kindness.
The International Peace Theory proposed by Immanuel Kant believes that the requirement of Diplomatic Immunity has its roots in the maintenance of peace and security between democratic states, who are much less likely to engage in wars with each other.

Some specific rights and immunities under the Vienna Convention

Article 20

The ambassador and their mission have the right to use the flag and national emblem of their state on the premises of the embassy, as well as on the residence of the ambassador and their transport.

Article 22

The premises of the mission (the embassy) cannot be infringed by any anyone, even the agents of the receiving state, who are not supposed to enter, except with the consent of the head of the mission, which is the ambassador.
The receiving state is under an obligation to take measures to protect the embassy from any intrusion or damage and prevent the disturbance of the peace of the mission.
The premises of the mission, its property, and its transport is immune from any search, requisition, attachment, or execution.

Article 26

The ambassador and the members of the mission have the right to free movement and travel in the territory of the foreign state subject to laws and regulations concerning zones into which entry is prohibited for reasons of national security.

Article 29

The person of the ambassador is inviolable, that is, he cannot be liable to any form of arrest or detention, and the receiving state needs to treat them with respect and ensure appropriate measures are taken to prevent any attack on his person, freedom or dignity.

Article 30

The private residence of the ambassador and his papers, correspondence, and property shall enjoy complete inviolability and protection.

Article 31

The diplomatic agent enjoys immunity for criminal jurisdiction of the receiving state, and immunity from civil and administrative jurisdiction, except in the case of:

A real action that relates to private immovable property in the territory of the receiving state.
An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir, or legatee as a private person and not on behalf of the sending State.
Any action that relates to a professional or commercial activity exercised by the diplomatic agent which is outside of his official duties.

Other than these, the ambassador is exempted from the payment of most dues and taxes of the receiving state under Article 34 and exempted from all personal and public services as well as military obligations of the receiving state under Article 35.

Waiver of Diplomatic Immunity

The immunity of the ambassador, however, is not unlimited and of course, subject to certain restrictions. The resident diplomats are required to behave in a responsible manner, as also stated by the Vienna Convention: “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state. They also have a duty not to interfere in the internal affairs of that state.”

The diplomatic immunity of the ambassador can also be waived on request by the foreign state in grave matters. This tends to happen in situations where the individual has committed a serious crime which is not connected with their official role (as opposed to allegations of spying for example). Most countries, however, do not waive immunity as a matter of course, and in many cases, the home country itself prosecutes the individual in question.

For instance, in 2002, a Colombian diplomat in the United Kingdom was prosecuted for manslaughter once diplomatic immunity was waived by the Colombian government^[2].

Powers to the Home State in Case of Misuse of Power

The principle of Persona non grata is laid down in Article 9 of the Vienna Convention. The phrase translates to an “unacceptable” or “unwelcome” person. This article provides that the receiving state can declare a diplomatic agent as Persona non grata if they violate and abuse the immunity and privilege granted to them for the diplomatic mission. This is the most effective safeguard with the receiving state against diplomats who are deliberately misusing and exploiting their power to the extent that it effects the interests of the receiving state adversely. The application of this principle is justifiable if the diplomat acts inappropriately and violates the social norms of the receiving country; misuses his immunity for committing criminal offences; or acts aggressively towards the receiving state and thereby risks its security.

Conclusion

The ambassadors are the torchbearers of diplomatic relations between states, responsible for peace, harmony, and cordial relations between two states. Accordingly, they need to be provided with substantial power to bear their responsibilities with relative ease. Thus, it appears quite obvious why these high ranking representatives are in need of Diplomatic Immunity. The Vienna Convention is a major success of the United Nations as it effectively provides immunity to the diplomats in performing their functions… maybe a bit too effectively however. Recent times have shown a surge in the abuse of this power, more than the actual judicious use of this power.

This can be seen in the case involving Saudi Embassy’s First Secretary, Majed Hassan Ashoor, who was accused of enslaving and raping two Nepalese women in his Gurgaon apartment in Delhi. Or in the case of Mansoor Ali, the 24-year-old son of Senegal’s ambassador to India, who was accused of murdering his driver, Dilawar after an alleged fight over car keys in a five star hotel in Delhi. Both people were protected by the Diplomatic Immunity awarded to them and set free^[3].

India is no stranger to the application of Diplomatic Immunity either. Devyani Khobragade, a deputy consul general at the Indian consulate in New York, United states was accused of human rights abuses when it was discovered that she was paying her servant according to Indian standards, below the minimum wage prescribed by the US, and was thus arrested on grounds of visa fraud. The Indian government reacted by transferring her to UN’s, Permanent Mission of India, thus making her eligible for diplomatic immunity^[4].

Hence, the abuse of such extensive power is not a farfetched thought and happens too often to let it slide past. Therefore, effective controls must be exercised by the host country themselves to make sure that their representatives actually serve their own best interests in the host country and do not hamper the long-term peace and relations between the states, which would be far more detrimental than the cost of a single individual who has scant respect for the law and international treaties.

References:

https://www.tutorialspoint.com/what-is-the-role-of-an-ambassador-in-a-foreign-country

https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf

https://www.scoopwhoop.com/What-Is-Diplomatic-Immunity-Here-Are-6-Times-It-Was-Used-By-And-Against-India/

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