The misconception of diplomatic immunity, how does it work

The comprehensive report on the privileges and immunity enjoyed by diplomats

Tuesday, 26th November 2019

Diplomatic immunity is a form of legal immunity that ensures diplomats are given safe passage and are considered not susceptible to lawsuit or any kind of prosecution under the host country’s laws. The comprehensive detail has been coded in the Viana Convention on Diplomatic Relations Done at Vienna on 18 April 1961. The report comprising 52 Articles provides a broad presentation of decisions pertaining to diplomatic immunity in the Vienna convention. Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of states, the maintenance of international peace and security and the promotion of friendly relations among nations. The immunity would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems. The heads of mission are divided into three classes, first is that of ambassadors or nuncios accredited to heads of State. Second, that of envoys, ministers and internuncios accredited to heads of states and finally, third is that of chargés d’affaires accredited to Ministers for Foreign Affairs. What is diplomatic immunity? The diplomatic immunity is the protection give under the international law to foreign diplomats and their families to protect them while working in receiving country. The establishment of diplomatic relations between states and of permanent diplomatic missions takes place by mutual consent. It is significant to mention that the immunity is not provided by the sending State of the diplomat. Yet, the immunity is provided by the State receiving the diplomat from another state. It means the diplomat of any Caribbean country will be liable for due diligence by the United Kingdom or any other European, Asian country in which he or she is appointed as a diplomat. Therefore, the receiving country will provide immunity to the diplomat, not sending country. The sending State may after it has given due notification to the receiving States concerned, accredit a head of mission (diplomat) as their representative unless there is express objection by the receiving State. Two or more states may authorize the same person as head of mission to another country unless any of the receiving states offer an objection. Members of the diplomatic staff of the embassy should in principle be of the nationality of the sending State. So, the members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of receiving State, except with the consent of the State which may be withdrawn at any time.

Immunity from search requisition, attachment or execution or their transport and residential properties.
The diplomat shall be exempt from all national, regional or municipal dues and taxes, whether owned or leased.

On more important factor is that the diplomatic agent shall be exempt from all dues and taxes. Still, he or she will have to pay the indirect tax in the country he is appointed which include goods and services (VAT), Taxes on private properties, Estate duties levied by the receiving country, dues and taxes on private income or investments instead of person’s salary being paid by sending country. diplomat will also have to pay the registration, court or record fees, mortgage dues and stamp duties with respect to immovable property. So far as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions. Can the diplomatic immunity be waived off? The receiving State may at any time and without having to explain its decision, notify the sending State that the diplomat of the embassy is persona non grata (an unacceptable person). Moreover, as a last resort without foreign State agreeing to lift immunity, diplomats and their families can only be detained if, for example, they are deemed to be in danger to others or themselves. Only another sanction available is to the Foreign Office would be to order their expulsion. The immunity from the jurisdiction of diplomatic agents and persons enjoying immunity under article 37 may be waived by the sending country a notification, Waiver always must be express. The function of a Diplomatic agent comes to an end on the notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end or it sending State refuses to recognize the diplomatic agent as a member of the mission. The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property. Does the immunity apply outside receiving country? According to the convention of diplomatic relations, the immunity does not apply to the diplomats in any other country rather then the one they are appointed in. Which means the Chinese diplomat who is appointed as ambassador to Dominica will not get the immunity in any other country until or unless the county itself provide the person immunity in specific country. What is diplomatic bag? According to article 27 of the convention, the State in which diplomat is appointed shall permit and protect free communication on the part of the mission for all official purposes for communication with government and other consulates. The diplomatic bag has the immunity of not to be opened or detained by any official of receiving country, but it will go into the x-ray machine to check that no illegal substance is being carried in the bag. Moreover, the diplomatic bag must bear visible external mark of the embassy and may contain only diplomatic documents or articles intended for official use. Do the resident diplomats have to obey the local laws? The diplomats are supposed to behave responsibly. The convention states, without prejudice to their privileges and immunities to respect the laws and regulations if the receiving State. They also have a duty to interfere in the internal affairs of the State.