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An analysis on the 1961 Vienna Convention on Diplomatic Relations

Article  in  Law · November 2015

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 A commentary on the 1961 Vienna Convention on Diplomatic Relations

Javier Izaguirre and Vana Khaled

Introduction

As a general rule, the domestic jurisdiction of a state within its own territory is complete
and absolute1. However, immunity from jurisdiction, whether as regards the state itself or as
regards its diplomats, is grounded in the requirement which under international law is to respect
the territorial integrity and political independence of other states 2. The 1961 Vienna
Convention on Diplomatic Relations (VCDR)3 which came into force on 24 April 1964 with
190 contracting parties in 20154, provides a framework for the establishment, maintenance and
termination of diplomatic relations on the basis of consent between independent sovereign
States5. It sets out the special rules, privileges and immunities which enable diplomatic
missions to act without fear of coercion or harassment through the enforcement of domestic
laws and communicate securely with their sending State.6 Inviolability of diplomatic agents is
regarded as a fundamental principle, and the freedom of a diplomat in a receiving State to
perform his duties without hindrance from law suits or criminal prosecution, has traditionally
been considered an absolute necessity7. Only parties are bound by the VCDR, however in the
case of US v Iran8 the International Court of Justice (ICJ) indicated that a great part of the
VCDR reflects customary international law9. This is further stipulated in the preamble of the
VCDR which states that all nations have recognised the status of diplomats10.

Nonetheless, the law of diplomatic immunity (DI) is double edges as the individual is
given certain privileges within the legal system of the receiving State and at the same time, that
State is under certain obligations to protect the diplomat and his property in order that he may
carry out his functions effectively11. Even thought, art. 41(1) of the VCDR12 emphasises the

1
Martin Dixon, Textbook on International Law (7rd Ed, Oxford University Press 2013), 182.
2
Malcolm N. Shaw, International Law (7rd edn, Cambridge University Press 2014), 506.
3
Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April
1964) 500 UNTS 95 (hereafter VCDR)
4
United Nations Treaty Convention,
<https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=III-
3&chapter=3&lang=en> (accessed 28.10.15).
5
Eileen Denza, Vienna Convention on Diplomatic Relations (2009) United Nations Audiovisual
Library of International Law 1, 3.
6
Ibid.
7
Claudia H. Dulmage, Recent Developments Diplomatic Immunity: Implementing the Vienna
Convention on Diplomatic Relations (1978) 10 Case W. Res. J. Int'l L. 827, 827.
8
United States Diplomatic and Consular Staff in Tehran Case (Judgment) [1980] ICJ Rep. 3.
9
Dixon (n.1), 209.
10
VCDR (n.3), Preamble.
11
Dixon (n.1), 208.
12
VCDR (n.3), art. 41(1).
duty of diplomats to respect the laws and regulations of the receiving State and the duty not to
interfere in international affairs of that State, DI from criminal jurisdiction remains among the
most controversial issues in international law. The 'abuses' of DI fall into two broad categories:
the first which is the use of diplomatic bag under art. 27(3) and (4) of the VCDR13 to smuggle
illegal goods into or out of the receiving State or kidnapping humans such as in the Dikko
incident in 198414. The second category is crimes committed by the diplomats themselves15.
This article will critically discuss some of the cases and incidents of the last category, and furthermore
discuss whether the VCDR is in conflict with principles of international law.

Diplomatic Immunity

Art. 1 of the VCDR16 defines a 'diplomatic agent' as the head of the mission or a member
of the diplomatic staff having diplomatic rank17 The privileges and immunities under the
VCDR may be divided into two categories; First, those immunities providing that the mission's
premises and documents are inviolable18 Second, the immunities of the diplomatic agents, their
families under art. 37 of the VCDR and the subordinate staff. However, even though DI has
been largely regarded as personal, in the sense that it is enjoyed by individuals, rather than the
state itself,19 the purpose of such immunity is not to benefit the individual as such but rather to
enable him to carry out his designate functions on behalf of the sending State.20 This immunity
ratione personae is only conferred as long as the official remains in office.21 Under art. 31(1)
of the VCDR22, the DI from criminal jurisdiction is unqualified and absolute unlike immunity
from civil and administrative jurisdiction where there are some limitations. Not only does it
prohibit the exercise of criminal jurisdiction in cases involving the acts of diplomats in their
official capacity but also in cases involving private acts23. In the Arrest Warrant case24 the ICJ
held that, 'It has been unable to deduce . . . that there exists under customary international law
any form of exception to the rule according immunity from criminal jurisdiction...’

This can be problematic as there might be a balance problem between the receiving
State's obligation to protect diplomats, and the need to prevent crimes committed by them as
the receiving State also have an obligation under article 2(1) of the International Covenant on

13
Ibid, art. 27(3) and (4).
14
The Abuse of Diplomatic Immunities and Privileges, First Report from the (British House of Commons)
Foreign Affairs Committee, HCP 127 (Dec. 14, 1984) and Shaw (n.2), 552.
15
Leslie Shirin Farhang, Notes: Insuring Against Abuse of Diplomatic Immunity (1985-1986) 38 Stan. L. Rev.
1517, 1523.
16
VCDR (n.3), art. 1.
17
Jonathan Brown, Diplomatic immunity: state practice under the Vienna Convention on
Diplomatic Relations (1988) 37(1) C.L.Q. 53, 53.
18
Denza (n.5), 84, 100.
19
Dixon (n.1), 210.
20
VCDR (n.3), art. 3
21
Dapo Akande and Sangeeta Shah, Immunities of State Officials, International Crimes, and
Foreign Domestic Courts (2011) 21 EJIL 815, 818.
22
VCDR (n.3), art. 31(1).
23
Akande and Shah (n.21), 819
24
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium) [2002] ICJ Rep
3.
Civil and Political Rights to protect those within its jurisdiction.25 The obligation varies
depending on which treaty the State has ratified, however, all States and individuals can be
held liable for severe human rights violations in cases where such acts resemble jus cogens
violations, and create further legal obligations which are universally binding as obligations
erga omnes26. Therefore, International law imposes the obligations on States to prosecute those
who have committed international crimes within their territory27. In the case of Dickinson vs
Del Solar28 the ICJ held that 'diplomatic immunity does not mean immunity from legal liability
but rather imports exemption from local jurisdiction'. Moreover, in the case of Empson v
Smith29 the judgment referred as it 'immunity from suit'. This means that diplomats committing
crimes may remain liable, albeit they cannot be prosecuted in the receiving State. Therefore
when the immunity is accredited by the receiving State and accepted by the domestic courts,
the latter must discontinue all proceedings against the defendant concerned.30

The 'Gillon' incident was the confrontation of the Danish Government with the
diplomatic immunity of the Israeli Ambassador to Denmark, Carmi Gillon. There were
accusations that Gillon had been complicit in torture while he was the head of Shin Bet, the
Israeli Intelligence Service, yet, Denmark maintained that he was entitled to diplomatic
immunity from Danish criminal jurisdiction.31 The fact that the Danish authorities took the
obligations of the VCDR over the obligations entailed in the Torture Convention32 implies a
'conflict of international norms'.33 Even though art. 7 of the Torture Convention34 is not a
prescriptive norm, that is to impose an obligation on the State to prosecute, it must be read as
a permissive norm as to grant a right to prosecute.35 However, this permissive norm, if
effectuated, could lead to a breach of the obligations of the VCDR. This means where the
precondition of a conflict exists as overlapping ratione materie, personae and temporis, there
is a conflict of applicable law.36 This leads to the discussion of how a treaty should be
interpreted: Under art. 31 of the Vienna Convention on the Law of Treaties37 generally a treaty
is to be interpreted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty and in accordance with its aim and object. Diplomatic law in a sense
constitutes the procedural framework for the construction of international law and

25
International Covenant on Civil and Political Rights (Adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171.
26
Sacha-Dominik Bachmann, Human Rights and Global Business: The evolving notion of Corporate Civil
Responsibility (2009) Indian Yearbook of International Law and Policy 193,197.
27
Akande and Shah (n.21), 816
28
Dickinson v Del Solar [1930] 1 K.B. 376.
29
Empson v Smith [1966] 1 Q.B. 426.
30
René Värk, Personal Inviolability and Diplomatic Immunity in respect of serious
crimes (2003) VIII Juridica International 110, 113.
31
Akande and Shah (n.21), 820.
32
Convention against Torture and Other Inhumane or Degrading Treatment or Punishment (adopted 10
December 1984, entered into force 26 June 1987) 1465 UNTS 85 (hereafter Torture Convention)
33
Jacques Hartmann, The Gillon Affair (2005) 54(3) C.L.Q. 745, 750.
34
Torture Convention (n.32), art.7.
35
Hartmann (n.33), 750.
36
Ibid.
37
Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS
331, art. 31.
international relations38 whereas the Torture Convention, on the other hand, has its objective
to protect human rights and aims to preserve human dignity. However, the argument of an
existing customary international obligation to prosecute those who commit international crimes
does not seem sustainable at present39. Nevertheless, art. 32 of the VCDR40 empowers the
sending State to renounces the immunity with regard to the person concerned and this can be a
result of the receiving State's concerns of the diplomats41. Once the waiver occurs, the domestic
courts in the receiving State will have the jurisdiction to prosecute42. Other remedies to control
abuse of privileges by diplomats can be, prima facie, the declaration of persona non
grata43reciprocity either by handing the offender over for prosecution before the sending State's
jurisdiction44, halting diplomatic relations and settlement of disputes.

Conclusion

DI has long been accepted as a basic element of international law which great part of
the VCDR also reflects. The privileges and immunities in the VCDR grew up partly as a
consequence of sovereign immunity and the independence and equality of states, and partly as
an essential requirement of an international system45. However, several cases and incidents
have illustrated that there might be a conflict between the application of VCDR and principles
of international law towards human rights violations in international affairs. The State has an
obligation not only not to arbitrarily take life but also to take measures to protect the life of
those within the State's jurisdiction46. A possible solution to this conflict would be to re-
consider the VCDR, however, the fact that the VCDR reflects customary international law
which the ICJ also have held in many cases, would be a counter argument to re-negotiate the
VCDR. Nevertheless, some measures have been taken towards the issue of 'diplomatic bag', as
the bag under art. 28(2) of the Draft Articles on the Diplomatic Courier and the Diplomatic
Bag47 may be opened when the State have serious reason to believe that the bag contains other
than official correspondence, documents or articles for official use. However, it still remains
an issue today48. Another solution would be to amend the VCDR to allow a diplomatic tribunal
within the International Criminal Court to try and prosecute diplomats who commit crimes.

38
Hartmann (n.33), 750.
39
Ibid.
40
VCDR (n.3), art. 32.
41
Franciszek Przetacznik, The History of the Jurisdictional Immunity of the Diplomatic Agents in
English Law (1978) 7 Anglo-Am. L. Rev. 348, 384.
42
Ibid, 386.
43
VCDR (n.3), art. 9.
44
Ibid, art. 31 para. 4.
45
Shaw (n.2), 546.
46
Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (Cambridge
University Press 2013), 76.
47
Draft Articles on the Status of the Diplomatic Courier and the Diplomatic Bag Not Accompanied by
Diplomatic Courier and Draft Optional Protocols (adopted in 1989), art, 28(2).
48
Shaw (n.2), 553.
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