ASSIGNMENT ON PUBLIC INTERNATIONAL LAW

JAMIA MILLIA ISLAMIA

NAME: RAHUL SISODIA

ROLL NO: 44
SUBMITTED TO: Ms NOORJAHAN MOMIN
TOPIC OF ASSIGNMENT: DIPLOMATIC IMMUNITY AND ITS SIGNIFICANCE

Submitted on: Submitted by:

8-04-2019 RAHUL SISODIA
 STATE

A large social system with a set of rules that are enforced by a permanent administrative body
(government). That body claims and tries to enforce sovereignty. That is, the state claims to
be the highest source of decision-making of the social system within its jurisdiction, and it
rejects outside interference in making or enforcing its set of rules. The many smaller systems
within the state are not sovereign, nor are large international organizations like the United
Nations, since states routinely reject their authority. The state is a political concept that refers
to the exercise of power or the ability to make and enforce rules. 1

REQUIREMENTS OF STATEHOOD

There are four essential characteristics of a state which include population, territory,
sovereignty, and government. Some sources list six or more characteristics when describing a
state. Other characteristics may include a food supply, written records, and some type of
commerce.

1. Population: A state must have a population which may be variable in size. Populations may
or may not share general political beliefs but the ones that do are the most stable. Mobility of
the population can affect its political and governmental stability.

2. Territory: States have established territorial boundaries. The size of the territory may
change due to the acquisition or secession of land through political negotiations, purchase
agreements, or by being overtaken by force such as during a war.

3. Sovereignty: Sovereignty can be considered to be the key characteristic of a state. A state

has full and absolute power within its territorial boundaries. States are independent with the
power to make and enforce laws, establish foreign policy, and determine the future of its
existence within the laws and boundaries.

4. Government: All states have some type of organized government. Government allows the
state to establish social order, provide public services, and to make decisions that affect the
living conditions of all people living within the territorial boundaries of the state.2

DIPLOMAT

1
https://www.brainyquote.com/quotes/bo_bennett_167525
2
https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/5-a-state-as-a-subject-of-
international-law
Diplomat is derived from the Greek (diplōmátēs), the holder of a diploma, referring to
diplomats' documents of accreditation from their sovereign.3A diplomat is a person
appointed by a state to conduct diplomacy with one or more other states or international
organizations. The main functions of diplomats are: representation and protection of the
interests and nationals of the sending state; initiation and facilitation of strategic agreements;
treaties and conventions; promotion of information; trade and commerce; technology; and
friendly relations. Seasoned diplomats of international repute are used in international
organizations (for example, the United Nations, the world's largest international diplomatic
organization) as well as multinational companies for their experience in management
and negotiating skills. Diplomats are members of foreign services and diplomatic corps of
various nations of the world.
Diplomats are the oldest form of any of the foreign policy institutions of the state, predating
by centuries foreign ministers and ministerial offices. They usually have diplomatic
immunity.

DIPLOMACY

“Diplomacy is more than saying or doing the right things at the right time, it is avoiding
saying or doing the wrong things at any time.” - Bo Bennett
Diplomacy is an art of what you do creatively using your skills. The definition of being a
diplomatic person is someone who can be sensitive in dealing with others and who can
achieve peaceful resolutions or facilitate discussion. A person who doesn't take sides in a
fight but who instead helps others to resolve their differences is an example of someone who
is diplomatic.
In modern day and age, one has to practice diplomacy as it is essential to get one’s way in a
world that is highly competitive. What you say matters a lot. One has to be careful while
conveying issues as they would have an impact on one’s surroundings. Building up of
personal relationships depends upon your choice of words, how you convey them to the
concerned person.4

DIPLOMATIC IMMUNITY

In international law, the immunities enjoyed by foreign states or international

organizations and their official representatives from the jurisdiction of the country in which
they are present.

3
Matthew S. Anderson, The Rise of Modern Diplomacy, 1450–1919 (1993), pp. 6.
4
https://www.brainyquote.com/quotes/bo_bennett_167525
The inviolability of diplomatic envoys has been recognized by most civilizations and states
throughout history. To ensure exchanges of information and to maintain contact, most
societies—even preliterate ones granted messengers safe-conduct. Traditional mechanisms of
protecting diplomats included religious-based codes of hospitality and the frequent use of
priests as emissaries. Just as religion buttressed this inviolability, custom sanctified it
and reciprocity fortified it, and over time these sanctions became codified in national laws
and international treaties.
Protections afforded to foreign envoys varied greatly in the ancient world. Greek heralds,
who were recognized as inviolable by the city-states, procured safe passage for envoys prior
to negotiations. Typically, the inviolability of envoys was not respected by third parties. As
empires in China, India, and the Mediterranean grew more powerful, diplomatic protections
decreased. The law of diplomatic immunity was significantly developed by the Romans, who
grounded the protection of envoys in religious and natural law, a system of norms thought to
apply to all human beings and to derive from nature rather than from society. In Roman
law the unassailability of ambassadors was guaranteed even after the outbreak of war.
During the Middle Ages in Europe, envoys and their entourages continued to enjoy the right
of safe passage. A diplomat was not responsible for crimes committed before his mission, but
he was answerable for any crimes committed during it.
During the Renaissance permanent rather than ad hoc embassies developed, and the number
of embassy personnel, as well as the immunities accorded to them, expanded. When
the Reformation divided Europe ideologically, states increasingly turned to the legal
fiction of extraterritoriality—which treated diplomats, their residences, and their goods as
though they were located outside the host country—to justify diplomatic exemption from
both criminal and civil law. The doctrine of quasi extra territorium was developed by the
Dutch jurist Hugo Grotius (1583–1645) to sanction such privileges, and during the 17th and
18th centuries other theorists turned to natural law to define, justify, or limit the increasing
number of immunities. These theorists used natural law, with its appeal to
universal moral injunctions, to argue that the representative nature of a diplomat and the
importance of his functions especially that of promoting peace justified his inviolability; the
same moral law underscored his obligations to the larger community. Because immunities
varied greatly between jurisdictions, and because some jurisdictions offered few if any
immunities, to protect their envoys countries increasingly resorted to laws such as the Act of
Anne (1709) in England, which exempted ambassadors from civil suit and arrest or treaties
such the 17th-century agreement between England and the Ottoman Empire that forbade
searches of the British embassy, exempted the servants of embassies from taxes, and allowed
the ambassador wine for his own use.
Although the French Revolution (1789) challenged the basic foundations of the ancien
régime, it reinforced one of its hallmarks, diplomatic inviolability. By the late 19th century,
the expansion of European empires had spread European norms and customs, such as
diplomatic immunity and the legal equality of states, throughout the world. Because of the
increasing number of privileges and immunities enjoyed by envoys, some theorists sought to
undermine the concept of extraterritoriality by highlighting its attendant abuses, such as the
granting of asylum in embassies to notorious criminals and smugglers. In particular,
legal positivists who argued that the law of diplomatic immunity should be based on treaties
and precedent strove to reduce what they considered the excessive privileges of envoys. By
the late 19th century, positivists were dominating international jurisprudence, largely because
they avoided the problem, characteristic of natural-law theorists, of confusing
international morality with international law and because they based their theories on the
actual practice of states.
The position of diplomats and the public respect they enjoyed declined substantially in the
20th century. This development, combined with certain other factors including the explosive
growth in the number of new states after World War II, an increase in the size of diplomatic
missions, and the increasing prevalence in international law of the view known
as functionalism (according to which diplomatic privileges should be limited to those that are
necessary to enable a diplomat to accomplish his mission) led eventually to attempts to
restrict diplomatic immunities in international treaties. The Vienna Convention on
Diplomatic Relations (1961) restricted the privileges granted to diplomats, their families, and
staff. Avoiding controversial issues such as diplomatic asylum and focusing on permanent
envoys rather than on ad hoc representatives or other internationally protected persons, the
convention accorded immunity from criminal prosecution and from some civil jurisdiction to
diplomats and their families and lesser levels of protection to staff members, who generally
were given immunity only for acts committed in the course of their official duties. Since the
19th century, diplomatic privileges and immunities have gradually been extended to the
representatives and personnel of international organizations.5

WHY DIPLOMATIC IMMUNITY MATTERS

There are several theories underpinning the notion of diplomatic immunity among them, the
now-outmoded idea that an ambassador represents the body of a foreign king; the notion that
an embassy is in fact foreign territory; the idea that such immunities are necessary for the
smooth conduct of foreign relations. Behind these theories lies one simple truth: if one nation
punishes diplomats for good reasons or bad, there is nothing to stop the other nation from
doing the same. For all practical purposes, diplomats would be at risk of becoming hostages.

5
https://www.britannica.com/topic/diplomatic-immunity
Understanding this, nation-states have let diplomats literally get away with murder. In 1984,
Libyan embassy staffer Salah Ameri allegedly opened fire at protesters, killing British police
officer Yvonne Fletcher. Britain severed diplomatic relations, after which the accused
embassy staff member left the country.
In a thoughtful analysis published in 2000, legal scholar Dror Ben-Asher noted that “the
occasional abuse of the diplomatic immunity rules is largely offset by the continuing need for
them.” He added: “The actual number and percentage of abuses affecting fundamental human
rights is relatively small therefore a complete wholesale rewriting of the rules or even a too-
radical reform, is undesirable.”Put simply, arresting a diplomat in violation of the Convention
signals contempt for international norms and with it, signals that one nation-state believes it
can violate the rights it accords another.
Long before modern diplomatic conventions began to evolve in 17th-century Europe, great
civilisations understood the importance of ensuring that diplomatic envoys were inviolate.
The ill-treatment of Raja Raja Chola’s envoys sparked the Kandalur War in 994 CE. Genghis
Khan’s armies insisted on the inviolability of the lives of their ambassadors and razed entire
cities to defend the principle. The Mongolian conquest of the Khwarezmid empire in 1219
began after one of Genghis Khan’s ambassadors was beheaded.
New Delhi’s more civilised expression of wrath, notably by denying U.S. diplomats
unilateral courtesies, is legitimate. There is plenty of reason to believe the State Department’s
casual consideration of Dr. Khobragade’s privileges was grounded in an institutional
unconcern for Indian reactions. Earlier this month, New York authorities were prevented
from arresting 49 Russian consular and diplomatic officials and their spouses, charged with
embezzling millions. It is probable that the near-certainty of Russian retaliation helped focus
the State Department’s mind.It is also important, though, that New Delhi upholds the
Convention not subvert it. New Delhi’s effort to shield Dr. Khobragade from prosecution by
giving her full diplomatic immunity is fundamentally misplaced; the Convention gives Dr.
Khobragade no such immunity. It is also important for the government to initiate a credible
investigation into claims by Dr. Khobragade’s domestic help that efforts were made to
intimidate her family in India.
It is also important, though, that New Delhi upholds the Convention not subvert it. New
Delhi’s effort to shield Dr. Khobragade from prosecution by giving her full diplomatic
immunity is fundamentally misplaced; the Convention gives Dr. Khobragade no such
immunity. It is also important for the government to initiate a credible investigation into
claims by Dr. Khobragade’s domestic help that efforts were made to intimidate her family in
India.
The larger challenge, though, is before the U.S. it has the choice to do the right thing and
admit wrongdoing. To remain recalcitrant, as it has been, is to contribute to the slow
unravelling of an international convention that keeps its own diplomats safe, every single
day.6

6
https://www.thehindu.com/opinion/lead/why-diplomatic-immunity-matters/article5508963.ece