Diplomatic Agents (DAs) A diplomat is a person who represents one country in another country. Concept of DR developed from times of ‘doot’ ─ messenger who were sent from one rajya to another rajya. However However neither neither the practice was uniform uniform nor they were sent permanently permanently.. !he practice of sending DAs permanently started in "# th century. $ater they were given certain rights duties and privileges %y the &tates. !his led to the development of some rules of C'$. &u%se(uent to the formation of )* the tas+ for codifying the law relating to DAs was given to 'nternational $aw Commission. !he Commission prepared the draft Articles and su%mitted them to the ,eneral Assem%ly of )*. !he Assem%ly convened a conference at -ienna in "/" wherein the Conference adopted a convention on April "0 "/" %y the name of -ienna Convention on Diplomatic relations which finall y came into force on April 12 "/2.
Need of DAs DAs are needed for the purpose of protecting the interest of states. 3resently laws rules 4 regulations regulations relating to DRs are discussed discussed on the %asis of -ienna -ienna Convention Convention on Diplomatic Diplomatic Relations "/". !hose matters in respect of which the Convention did not ma+e any e5press provisions6 they still are governed %y the rules of C'$.
Classification of DAs As per the convention DRs have %een classified as7 a) Amba Ambasssado sador: r: Am%assadors are considered to %e the personal representatives of the
Heads of their &tates and therefore enjoy special honours. !he can claim the title of 85cellency 85cellency.. 9hen they are sent %y Holy &ea &ea they are called 3apal $egates $egates or 3apal *uncios. Am%assadors sent within the Commonwealth countries are called High Commissioners. *ormally Am%assadors are appointed with the consent of the receiving &tate. !hey shou should ld ther theref efor oree %e persona grata which which mean meanss accep accepta ta%l %lee pers person ons. s. 9hen 9hen the the am%assadors arrive in the receiving state they present a sealed letter of credence which is given to them %y the Head of the sending state. b) Minis Minister ter’s ’s Plenipo Plenipoten tentia tiary ry7 !hey are not considered to %e the personal representatives of
the Heads of their &tates and therefore do not enjoy special honours which are normally enjoyed %y the am%assadors. !hey do not receive the title of ‘85cellency’. 'f they are given it is %ecause of courtesy and not %ecause of right. !hese are the representative of the &tate or ,ovt.
c) Charge D’ Affairs: !he representative of the foreign ministers i.e. they are accredited not
%y the &tate %ut %y ht :oreign ;ffice to the :oreign ;ffice. !hey therefore on arrival present a letter of credence to the
Need/Significance of Classification !he Classification under the Convention of "/" has %een made according to rights and privileges that are given to DAs and the functions they perform. :or e.g. • •
Am%assador = entering into treaties.
s pleny potentiary= ,ranting recognition.
Difference between Ambassadors Ministers’ Plenipotentiary and Charge D’ Affairs a) ;n the %asis of functions . b) ;nly am%assador can have the title of >his 85cellency>. c) ;n the %asis of appointment which is done %y iss uance of letter of credence which is given • • •
%y !he 3resident in case of Am%assador !he ,overnment in case of s 3lenipotentiary the foreign minister in case of Charge D> Affairs
'n all other matters practically no difference as per Convention.
Method of appointment of DA 9henever any DA is appointed a letter of credence is issued %y the concerned authority stating the conditions and terms of appointment. !his letter is to %e carried %y the DA to the receiving state and is to %e produced there. ;n production of the letter the receiving state should declare him as 'persona grata' which literally means an accepta%le person. ;nce declared as 'persona grata' the process of appointment is over. However if declared persona non grata which literally means >unaccepta%le person> then the appointment is rendered ineffective. !he convention does not provide for any particular educational (ualifications in order for a person to %ecome a DA %ut in this matter every country follows its own procedures. 'n 'ndia there is a legislation which provides that only an 'ndian :oreign &ervice ?':&@ holder can %ecome a DA.
!erminology "igh commissioner# a term used in %etween commonwealth countries to descri%e an
am%assador. Papal N$ncio/Papal %egates = a term to denote an am%assador from the -atican city ?holy
sea@. &n'oy=A term synonymous to minister>s plenipotentiary. Sending State= !he state that sends the DA as its representative. (ecei'ing State= !he state which receives the DA.
$nctions of DAs :unctions of DAs are determined %y the rules of 'nternational $aw and the municipal laws of &tates. -ienna Convention lays down various functions of DAs which are as follows7 *) (epresentation# DAs represent the sending &tate in the &tate where they are accredited.
Representation is entrusted primarily to the Head of the
limits permitted %y <$. the limit is prescri%ed not %y the '$ %ut %y the <$ and regulations of the sending state within which an envoy affords protection. ,) Negotiation# *egotiation is the most important function that the DA performs. !hey
negotiate on the various aspects on %ehalf of the sending state with the receiving state in order to maintain friendly relations %etween the two. !hey are re(uired to communicate the outcome of the negotiations to the sending state from time to time. -) .bser'ation# DAs are re(uired to o%serve those happenings and events which may ta+e
place in the receiving state specially those which may have effect in their sending state after ma+ing o%servation they are re(uired to ma+e periodical reports as well as special reports thereon to the government of sending state. ) Promotion of riendly (elations = DAs are re(uired to promote friendly relation %etween
the sending and receiving &tates they also have function to develop economic social and cultural relations %etween the 1 states.
(ights Pri'ileges 0 1mm$nities of DAs Need or basis for gi'ing diplomatic imm$nity2 divergent views thus theories. *) &3tra !erritoriality theory = According to this theory DAs are deemed not to %e within
the territorial jurisdiction of the receiving &tate %ut to %e at all times within that of the sending state. !his theory is also called as fictional theory as e5tra territoriality is %ased merely on a fiction. +) !heory of (epresentation= 8very DA is regarded as agent or the personal representative
of the sovereigns of the &ending state. !hey therefore are given the same degree of privileges which are given to the sovereign heads. ,) $nctional !heory# !his theory lays down that the DAs are given immunities and
privileges %ecause of the nature of their functions. !he duties which the DAs are re(uired to perform are in many cases far from easy. 'n other words their functions are of special or to say of typical nature. !hey are allowed immunities from the legal and other processes of the receiving state so that they may perform their functions freely. All these theories are correct in their own %ut the "st theory was prevalent only at the time of development of '$. 9ith su%se(uent development of '$ the 1nd theory came into pictur e. 9hen '$ developed after 1"st century especially after )* the rd theory got importance.
Pri'ileges/imm$nities of DAs
1n'iolability of DAs# meaning that a DA can>t %e arrested or detained %y the receiving state
under any circumstances. !his right is provided %y the -ienna Convention under Article 1 as an a%solute right and does not accept any e5ception under any circumstances. 8ven though the -ienna convention doesn>t recognise any e5ception %ut there are some reasona%le e5ceptions evolved and followed %y practice in the international community. :or instance a drun+en diplomat with a loaded gun in a pu%lic lace may %e arrested6 if DA commits an act of violence which distur%s the internal order of receiving state6 if DA conspires against the receiving state.
4hether in'iolability of person incl$de family members or staff of the DA5
-ienna Convention under Article # tal+s a%out immunity to staff. 't classifies diplomatic staff into heads7 • • •
Administrative staff !echnical staff &ervices staff
Administrative 4 !echnical staff is entitled to get immunities and privileges similar to that of the DA. But &ervices staff as in the people who do domestic wor+ e.g. Driver Coo+ etc. generally these people are not given immunity %ut under if they are nationals of the sending state then they have a claim of immunities 4 privileges similar to that of the DA. amily Members:
,eneral rule is that if the family mem%ers fulfil certain conditions as per the convention7 • • •
!he family mem%er should reside under the same roof as that of the DA. !hey should %e a national of the sending state. !heir name should %e included in the list provided %y the DA.
!he rationale %ehind these conditions is to ensure that the near ones of the DA are not affected. !he convention recognies only 1 type of family relation i.e. %y %lood 4 %y marriage. 1n'iolability of Diplomatic premises = ,overnment of the receiving state cannot apply any
jurisdiction over the diplomatic premises that include the official vehicles. A permanent diplomatic mission needs premises from which to operate and the receiving state must help the sending state o%tain premises for the mission. !here is right to use the flag and em%lem of the sending state on the premises of the mission thus clearly identifying them. further Article 11 of -ienna Convention stipulates the C'$ principle that the premises of the mission shall %e inviola%le. !he same inviola%ility is provided to the private residence of the DA. reedom from inspection of personal baggage # According to Art. 1# the personal %aggage
of a DA shall not %e chec+ed not even under any e5ceptional circumstances. But in practice the 'nternational Community follows normal security chec+ing method without opening or detaining the %aggage. :reedom of Communication= Convention says that sufficient communication mechanism should %e provided to DAs. Article 1# of the -ienna Convention lays down that the freedom of communication includes the use of couriers and code messages.
Right to 9orship= Article of -ienna Convention lays down that the DAs have a right to worship any religion they li+e within their pre mises %ut they cannot invite the nationals of the receiving &tate to ta+e part in the worship. 1mm$nity from being a witness or gi'ing e'idence# Article. " provides that DAs are not
to %e compelled to attend any court as witness. !he rationale %eing that the evidence may affect the relation %etween sending 4 receiving state. 1mm$nity from c$stoms ta3 0 other d$es# Article 2 provides this and according to it7 the
salary of the DA is non=ta5a%le. However indirect ta5es can %e levied upon DAs also custom is levied while importing personal items. reedom of tra'el or mo'ement# Article 1/ of -ienna Convention provides that DAs are
free to move and travel in the territory of the receiving &tate %ut this is su%ject to laws made %y receiving &tate concerning prohi%ited security one. 1mm$nity from ,rd Party state = Article 2 says that any state other than sending or
receiving state is o%ligated to provide immunity to the DA only during transit for official purposes. But there isn’t any restriction6 if the country wants it can provide immunity for personal purpose too. 1mm$nity from Military .bligations# Article E says that the DA and his family mem%ers
are e5empt from local and military o%ligations of the receiving state such as those connected with the re(uisitioning military contri%utions. 1mm$nities from %ocal 6$risdiction: DAs enjoy immunity from the jurisdiction of
receiving state’s local courts. !he immunity e5tends to criminal jurisdiction as well as to civil and administrative jurisdiction.
4ai'er of 1mm$nities A DA can waive off his rights 4 immunities %ut it should %e done in an e5press manner. Art. 1 provides for waiver. 9aiver is the 'ndividual choice of DA therefore the sending state cannot o%ject %ut what it can do is withdraw the DA from his post.
!ermination of Diplomatic Mission (ecall by the sending state 7 recalling a DA has %een a power vested in the sending state
when a DA is recalled %y the sending state generally the mission comes to an end. Recalling of DA is utilised to show sending state’s displeasure at the personal mis%ehaviour of thr DA or to e5press policy differences with the receving state. 't also occurs normally when the relationship %etween the 1 states is strained.
.n re7$est of the recei'ing state: the head of the diplomatic mission may %e terminated
when a re(uest is made %y the receiving state in this regard. 't ta+es palce when the relations %etween the 1 states %ecome unfriendly or %ecause of the misconduct on the DA’s part. 8g.
%een declared as persona non grata. 't is completely the discretion of the receiving state in declaring the DA as persona non grata this declaration cannot %e challenged as it is the sovereign power of the state. &3piration of the !ime: if a letter of credence is given to any envoy for a limited period his
mission terminates at the e5piration of the period. .n completion of the mission: 8y Notification: the sending state may terminate the head of the mission %y notification if
the DA’s function has come to an end. However it is not necessary that the other state has to reciprocate and withdraw its DA. Article 2 of the -ienna Convention provides for this way of termination )nder '$ if a person stays in a place for a time long enough he can get the nationality of that state it is +nown as the rule of naturaliation. But it doesn’t apply to DAs %ecause they didn’t live there in their personal capacity.
Consular Relations Consuls are agents of the &tate residing a%road for a variety of purposes. However they are sent mainly to protect the commercial and navigational interests of the sending state in another country. its Commercial= connected to trade 4 %usiness. *avigational= air road or water transport. 'n fact the consular institution developed primarily as a means of protecting trade. But at present they are sent for other purposes as well. )nder C'$ there is no law regarding appointment immunity privileges of Consuls therefore -ienna Convention on Consular Relations adopted %y )* which came into force on
Classification of C.ns$ls !he Convention classifies Consuls into 2 heads7 "@
Consul ,eneral7 Head of the Consular office.
1@ Consul?s@7 1nd in position in the Consular mission and are appointed %y the Consul ,eneral. @
-ice Consul7 rd in ran+ and appointed %y Consul ,eneral.
2@
Consul Agent7 appointed %y Consul ,eneral or Consul.
!hough there is this hierarchy and classification of the Consuls %ut there is no practical difference.
$nctions of Cons$ls Article E of the -ienna Convention lays down various functions of the Consuls. 'mportant among them are as follows7 a) 3rotection of commercial industrial 4 navigational interests of the sending state and
its nationals.
b) :urtherance of the development of commercial economic cultural and scientific
relations %etween the two states. c) !o ascertain conditions and development of commercial economic cultural and scientific conditions of the receiving state. d) 'ssuance of visa to the nationals of receiving state 4 passport to the nationals of sending state. e) 3rovide help and assistance to their nationals in testify signatures registration of marriage %irth and death. f) &afeguard the interests of minors and other persons of their state lac+ing full capacity. g) 85ercise the right of supervision in respect of vessels and aircrafts of the sending sate.
(ights 0 Pri'ileges &ame as DAs
Difference between DA 0 Cons$l a@ ;n the %asis of :unctions7 DA= 3olitical Consul= Commercial 4 *avigational %@ ;n the %asis of $etter of Appointment7 DA= $etter of Credence Consul= $etter of 85e Fuatur c@ ;n the %asis of !itles accorded7 DA= His 85cellency. Consul= not eligi%le to %e called as His 85cellency
