Diplomatic Immunities: In the Context of International Human Rights.

Contents
Abstract
Introduction
What is Diplomatic Immunity?
Why need diplomatic immunities?
What are international human rights?
Diplomatic immunity and Vienna Convention on Diplomatic Relations, 1961

Diplomatic immunities vs. human rights: some example of collusion:
Abuse of diplomatic immunities with example:
Recommendation:
Conclusion:
Reference


Abstract:
The Vienna Convention on Diplomatic Relations may have clearly spelt out the existing law with regard to diplomatic practices. However, upon a deeper probe into the concept of diplomatic immunity, one can conclude that the position is rather unsettled. In this paper I will try to discuss what is diplomatic immunity? Why need diplomatic immunities?. I also try to discuss what are the international human rights? At the same time I try to discuss diplomatic immunity and Vienna Convention on Diplomatic Relations, 1961.I also tries to find out diplomatic immunities vs. human rights: some example of collusion. This paper seeks to precisely chart out abuse of diplomatic immunities with example. Finally, an attempt is made to arrive at a problem-solving mechanism.


Introduction:
Diplomacy, as a method of communication between various parties, is believed to be one of the few human occupations without which mankind will never be able to live. Diplomacy is the art and practice of conducting negotiations between representatives of groups or nations. It usually refers to international diplomacy, the conduct of international relations through the intercession of professional diplomats with regard to issues of peace-making, culture, economics, trade, and war. International treaties are usually negotiated by diplomats prior to endorsement by national politicians. To conduct diplomacy properly in a proper way, the world community has made numbers of initiative, the Vienna convention on diplomatic relations 1961 is one of the great initiative in this regard.


What is diplomatic immunity?
Diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities. The concept of immunity began with ancient tribes. In order to exchange information, messengers were allowed to travel from tribe to tribe without fear of harm. They were protected even when they brought bad news. Today, immunity protects the channels of diplomatic communication by exempting diplomats from local jurisdiction so that they can perform their duties with freedom, independence, and security. Diplomatic immunity is not meant to benefit individuals personally; it is meant to ensure that foreign officials can do their jobs. Under the concept of reciprocity, diplomats assigned to any country in the world benefit equally from diplomatic immunity.
The Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963 codified most modern diplomatic and consular practices, including diplomatic immunity. More than 160 nations are parties to these treaties. The conventions provide immunity to persons according to their rank in a diplomatic mission or consular post and according to the need for immunity in performing their duties.
Diplomatic privileges and immunities guarantee that diplomatic agents or members of their immediate family:
• May not be arrested or detained
• May not have their residences entered and searched
• May not be subpoenaed as witnesses
• May not be prosecuted
Why need diplomatic immunities?
Diplomatic immunity is a form of legal immunity and a policy held between governments that ensure that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's lawsuit. It goes without saying without diplomatic immunities one diplomat cannot perform his or her work. I will discuss the necessities of diplomatic immunities in the basis of three theories which are representational theory, exterritorial theory, and functional theories.

Representational theory The first theory is that of ‘personal representation’ (representational theory) under this traditional theory of diplomatic practice, a diplomatic envoy is believed to personify the sovereign he represents. The theory is essentially based on the notion that the representative should be treated as if the sovereign himself was conducting diplomacy. The representative’s privileges are similar to those of the sovereign, and an insult to the ambassador is an insult to the dignity of the sovereign.

Exterritoriality theory The second theory that of ‘exterritoriality’ basically stands for the proposition that diplomats’ offices, homes, and persons are to be treated as if they are on the territory of the sending state. The exterritoriality approach to diplomatic immunity adopts the legal fiction that a diplomat is always on the soil of his native country, wherever he may actually go.

The theory of functional necessity currently is popular this approach justifies immunity on the grounds that diplomats could not fulfill their diplomatic functions without such privileges. Hence, diplomatic agents are primarily given these benefits because of the nature of their functions. If diplomats were liable to ordinary legal and political interference from the state or other individuals, they would be dependent on the good will of the receiving state. Considerations of safety and comfort might materially hamper the exercise of their functions. If immunities are not granted, then diplomats will be kept at the mercy of interruptions by the local administration, in turn making it impossible for them to carry out their duties. Thus, functional theory rests on practical necessity.
What are the international human rights?
On December 1948, the Universal Declaration of Human Rights was proclaim and adopted by the general assembly. The extraordinary vision and determination of drafts produced a document that for the first time set out universal human rights for the all people in an individual context .Universal human rights are these rights which are very essential to live in the world such as right to life, liberty, secure of person, Slavery shall be prohibited in all their forms. Right to movement etc.

Diplomatic immunity and Vienna Convention on Diplomatic Relations, 1961:
On 14 April 1961, the Vienna Convention on Diplomatic Relations was adopted by the United Nations Conference on Diplomatic Intercourse and Immunities. If we want to see the articles of these conventions we have to see the numbers of articles which are related to the diplomatic immunities.

Diplomatic Immunities – Property under Art. 22 of the Vienna Convention, the premises of the mission are inviolable and together with their furnishings & other property thereon,
It is to be noted that by Art. 24 of the Vienna Convention, the archives and documents of the mission are inviolable at any time and wherever they may be.

Diplomatic Immunities - Personal The person of a diplomatic agent is inviolable under Article 29 of the Vienna Convention and he may not be detained or arrested.
Art. 30(1) provides for the inviolability of the private residence of a diplomatic agent, while Art. 30(2) provide that his papers, correspondence and property are inviolable.
Art. 31(4) reflect the accepted position under customary law. The only remedy the host state has in face of offences alleged to have been committed by a diplomat is to declare him persona non grata under Art. 9.
Diplomatic immunities vs. human rights: some example of collusion:
It is very important to note here that if we want to see the some activities of diplomatic immunities we have to the clear violation of international human rights.

 Right to life: If we one to see the universal declaration of human rights article number 3 here state that Everyone has the right to life ,liberty and security of persons but if we see the example we have to see the totally different picture.
The April 1984 killing of a British Police Constable and the wounding of eleven Libyan dissidents outside the Libyan embassy in London is one example of a clash between right to life and diplomatic immunities. First, the unidentified persons who allegedly fired at the victims through the windows of the embassy could not be prosecuted and punished by the British legal system. Likewise, the alleged lawbreaker could not be forced to compensate the victims’ families.
 Slavery: If we one to see the universal declaration of human rights article number 4 here state that No one shall be held in slavery or servitude , slavery and the slave trade shall be prohibited in all their forms . But if we see the example we have to see the totally different picture.
Many recent instances of diplomatic slaves have been reported where some have been forced to work interminable hours every day, seven days a week, for little or no wages, made to sleep on floors and eat table scraps and sometimes beaten or sexually abused. Their passports were withheld by their masters as insurance against escape.
In one reported case, a Bolivian servant was kept as a virtual prisoner by an Egyptian diplomat stationed in the US. She was made to work seven days a week and never received a penny. Her passport was kept by the diplomat who denied her medical treatment when she developed a severe disease causing bleeding and infections.

 Right to security of a person’s: If we one to see the universal declaration of human rights article number 3 here state that Everyone has the right to life ,liberty and security of persons but if we see the example we have to see the totally different picture.
The victim of the Brazilian Ambassador son 1982 shooting in a Washington night club never fully recovered from his wounds and underwent psychiatric treatment. In another incident, the Mexican Ambassador to the UN smashed the window of a car belonging to a New York City man and pointed a gun at his head because the man had parked for five minutes in a space reserved for diplomats. No charges were brought against the ambassador.


 Rights of the Child – if we want to see the convention on the Rights of the Child Art. 19 we have to see the every child has the rights to live in a peaceful situation. But if we want to see the following article then we can see the total violation of the above charter.

In one case the 9-year-old child of an attaché of the mission of the Republic of Zimbabwe was sent to a foster home after his school officials noticed that he was badly bruised and battered. The child was reported to have been..Hung by the ankles and beaten, then cut down so he fell on his head. The Convention on the Rights of the Child also provides that the best interests of the child shall be a primary consideration in all actions concerning children.

Abuse of diplomatic immunities with example:
If we see the convention and see the example of diplomatic immunities we can see that four articles of the Vienna Convention apply when a diplomat has abused his immunity:

# Art. 29 provide that the person of the diplomat shall be inviolable and that the diplomat is not liable to any form of arrest or detention;

# Art. 31 exempt the diplomat from the criminal jurisdiction of the receiving State, though a diplomat can be tried in the receiving state if her immunity is waived.

# Under Art. 32, however, only the sending State may waive immunity, and the waiver must always be express.

# The fourth provision, Art. 41, requires that the diplomat respect the laws and regulations of the receiving State and not interfere in the internal affairs of the receiving State. This provision is unenforceable due to the previous three provisions of the Convention, which exclude diplomats from the jurisdiction of the receiving state. In short, the diplomat himself cannot be touched.
Example of diplomatic immunities .One incident in Britain involved an ex-member of the former Nigerian government, Alhaji Umaru Dikko. In July 1984 Mr. Dikko was kidnapped from his London home, drugged, and put into a diplomatic crate bound for Nigeria. The crate also contained Israeli mercenaries who had helped in the kidnapping. The Nigerian government refused to cooperate, and again, all Britain could do was expel the diplomats involved with the kidnapping. This was not the first time the immunity of a diplomatic bag was used for purposes of abduction..

Recommendation:
It has been argued above that states are by no means powerless in preventing abuse of diplomatic immunity and violation of human rights. So if the world community can take necessary steps which I have mentioned below then we can say that the abuse diplomatic immunities can be reduced.

First, it is possible to conclude, in advance, a bilateral or regional treaty providing for compulsory waiver of immunity, or compulsory prosecution in the sending state.


Second, the receiving state can request waiver of immunity from the sending state.

Third, option is "post-immunity prosecution," that is, prosecuting the alleged offender after h/er assignment has been terminated.

Fourth, the declaration of persona non grata in itself, though not a perfect punishment for human rights violation, is not without punitive value.

Fifth, abuse of diplomatic immunity involving a violation of fundamental human right may be seen as an International crime suitable for trial by an international criminal tribunal.



Perhaps the most promising approach for peacefully resolving disputes where none of the above mentioned mechanisms has worked (that is in cases of continuing disagreement), is amendment of the Vienna Convention to require compulsory arbitration.



CONCLUSION

From the points raised above it may be concluded that two sets of international rules, human rights and diplomatic immunities, sometimes conflict. Contemporary international law does not seem to provide a clear answer as to the question of priority between them. Even if one assumes that, at least theoretically, human rights law prevails, that assumption quickly runs into trouble when it encounters the very real reciprocity factor underlying the whole body of diplomatic law.












Bibliography
1. Md.Shameem Ahsan ,Encyclopedia of Diplomacy,A .H. Development Publishing House,Dhaka.2009

2.Vienna Convention on Diplomatic relations! 961.
3.The International Convention on the Elimination of All Forms of Racial Discrimination 1965 (in force 1969).
4.Universal declaration of human rights 1948

5.The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987.

6.Rosalyn Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience, 79 A.J.I.L 641, 643-644; See also, Rosalyn Higgins, UK Foreign Affairs Committee Report on the Abuse of Diplomatic Immunities and Privileges: Government Response and Report, 80 A.J.I.L. 135 (1985).

http://topics.nytimes.com/topics/reference/timestopics/subjects/d/diplomatic_immunity/index.html
7. SIEGHART, Paul ,The international law of human rights, Oxford Clarendon Press, 1983
Karen A Migngst. Essential of International relations ,w.w.Norton and Company ,New York .London,2001