The successful adoption of the Vienna Convention on Diplomatic Relations is hailed as the ‘landmark of the highest significance in the codification of international law’. It represented the first significant codification of any international instrument since the United Nations was established. However, despite the codification of the above rules, which is largely based on the pre-existing customary international law, the scope of diplomatic protection was not free from issues and controversies. In recent times, unfortunately, there is a growing tendency amongst the diplomats to abuse their diplomatic status to commit acts prohibited by law and still claim immunity from legal process. The States-parties also aggravate this situation by selectively interpreting the rules in their favor, ignoring the fact that reciprocity is the basis for the successful functioning of the diplomatic protection. In this connection, this paper addresses the problem of abuse of immunities and privileges and its adverse implications on the balance between immunities and the duty to respect the local laws and regulations, especially with special reference to the recent Indian experience. It explores the two recent Indian diplomatic confrontations, namely, the arrest of Devyani Khobragade and the travel ban on Daniele Mancini. Based on the study, it highlights the need for a well-balanced and equitable enforcement of the Vienna Conventions in the interest of maintenance of cordial diplomatic relations in the international community.
The successful adoption of the Vienna Convention on Diplomatic Relations1 is hailed as the ‘landmark of the highest significance in the codification of international law’.2 It represented the first significant codification of any international instrument since the United Nations was established.3 It may also rightfully claim to be the most successful instrument ever drawn up under the aegis of the United Nations, thanks to the ‘high degree of observance’ among States parties.4 Together with the Vienna Convention on Consular Relations,5 these two instruments systematized for the first time the rules governing the immunities and privileges available to foreign officials. The twin instruments are also known for their high amount of ratifications and the influence that they have on day-to-day conduct of international relations.
However, despite the codification of the above rules, which is largely based on the pre-existing customary international law,6 the scope of diplomatic protection offered thereunder has not been free from issues and controversies. In recent times, unfortunately, there has been a growing tendency amongst diplomats to abuse their status to commit acts prohibited by law and still claim immunity from legal process.7 These have included reports suggesting the involvement of diplomats in the commission of international crimes, such as drug trafficking, organized crime and terrorism.8 The States-parties have also aggravated this situation by selectively interpreting the rules in their favor, ignoring the fact that reciprocity is the basis for the successful functioning of diplomatic protection.
India is a home to one of the oldest diplomatic traditions in the world.9 However, recent protracted diplomatic stand-offs with Italy and United States, have given rise to a number intriguing questions of international law relating to the enforcement of the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations (shortly, as Vienna Conventions).
In this connection, this paper addresses the problem of abuse of privileges and immunities and its adverse implications on the balance between such immunities and privileges and the duty to respect local laws and regulations, with special reference to the recent Indian experience. For this purpose, it begins with a historical overview of the concept of diplomatic immunity, tracing its evolution both in India and in other major legal systems up to the adoption of the Vienna Conventions, followed by the comparative analysis of these two instruments. It also addresses the question of how diplomatic immunity is different from consular immunity and how these two immunities are distinguished from the immunity available under the Convention on the Privileges and immunities of the United Nations. However, the primary focus of the paper is in Sections 3 and 4. While Section 3 introduces the problem of abuse of privileges and immunities in the international context, Section 4 explores the two recent Indian diplomatic confrontations: the arrest of Devyani Khobragade and the travel ban on Daniele Mancini. In the case of the former, the Indian Consular Officer in New York was arrested on complaints of visa fraud despite the claim of consular immunity and in the latter, the Indian Supreme Court imposed certain travel restrictions on the movement of the Italian Ambassador in India over the breach of an undertaking given to it. The final part highlights the need for a well-balanced and equitable enforcement of the Vienna Conventions in the interest of maintenance of cordial diplomatic relations in the international community.
2 Evolution of the Principle of Diplomatic Immunity
The term ‘diplomat’ is derived from the French term ‘diplomate’, which indicates a person whose task is to negotiate on behalf of the state. Diplomats enjoy a special status both at home as well as abroad.10 It is said that the concept of diplomatic immunity has long-standing roots in international practice, and that the customary rules of diplomatic immunity are as old as diplomacy.11 Early historians trace the origins of diplomacy from the regions of the Mediterranean, the Middle East, China and India.12 In this connection, it is useful to provide an overview of the historical evolution of the concept of diplomatic immunity, both in India and in other legal systems.
2.1 Historical Evolution in India
The history of diplomatic relations and the personal inviolability of diplomatic envoys can be traced back to several ancient civilizations.13 India is a home to one of the oldest diplomatic traditions in the world, whose origin may be traced back to the 4th Century
The ancient treatise also delineates the qualities and assignments of the diplomat.22 It states that ‘in the happiness of the subjects lies the happiness of the king and in what is beneficial to the subjects his own benefit. What is dear to himself is not beneficial to the king, but what is dear to the subjects is beneficial (to him)’. The diplomats are expected to follow this sutra during the course of their tenure.23 Moreover, the treatise also speaks of the period of commencement and termination of the privileges and duties of envoys.24 While Kautilya insisted that the duty of an envoy is to uphold the King’s honour, he also stipulated that no harm should be caused to envoys. It is mandated that foreign representatives are not to be detained, even if they present ‘unpleasant’ messages’.25
Also, Manusmriti, the ancient Hindu Code of conduct, embodies the rules relating to diplomacy. According to its author, Manu, the arriving guest should be given a place to sit and rest, beddings and equal respect. He should not stay unfed.26 Similarly, leading Indian historians opine that diplomacy also played a very important role in ancient Tamil society. References to various aspects of diplomatic traditions may be found in the notable Tamil literature, such as, Silappadikaram, Tholkappium, Purananuru and Thirukkural.27 Also, the Tamil literary work known as Purananura, which may be translated as ‘four hundred poems of external life’, contains references to the role of an envoy in ending war.28 It is said that ‘even if the speech or conduct of an envoy was provoking, they were not taken to task’.29
Similarly, the Kingdom of Maurya, especially under the King Ashoka, also had a vibrant diplomatic system. However, in view of his policy of renunciation of war, he was more interested in ‘peace diplomacy’ and ‘Buddhist diplomacy’ rather than in ‘war diplomacy.30 In the end, it is submitted that despite the rudimentary nature of these rules, the contribution of these principles to the development of the modern law of diplomatic relations cannot be underestimated. With the rise of Mughals and the British, India’s early diplomatic traditions were slowly subsumed into modern standards and traditions of diplomatic conduct.31
2.2 Historical Evolution in Other Legal Systems
During the time of the Ancient Greeks, ambassadors were referred to as ‘messengers of God’.32 The violation of an envoy’s person was widely considered to be offensive to the Gods. It is observed that in the entire history of diplomatic immunity, the notions of the Greeks have assumed a very special position. According to the leading publicists, Frey and Frey, envoys have enjoyed a ‘powerful protected position’ since the time of the Ancient Greeks.33 It is interesting to note that the fall of Athens and Sparta in 491
Like the Greeks, the Romans too considered diplomatic immunity to be sacred and they placed a very high emphasis on the inviolability of envoys.35 The Romans accordingly developed the college of fetials, a semi-religious and semi-political body for conduct of external relations.36 This College was considered the principal source of diplomatic activity at the time and it developed a body of rules, better known as the ‘fetial law’.37 This special law attached a great deal of importance to the personal inviolability of envoys.38 This rule required that mistreatment of foreign envoys would be considered a capital crime and that the trial proceedings should be held in public.39
Also, during the sixteenth century, the Mendoza affair contributed to the strengthening of the concept of diplomatic immunity.40 In 1580, the English government accused Don Bernardino de Mendoza, the Spanish Ambassador in London, of the crime of conspiracy against the sovereign for his involvement in the Throckmorton plot.41 The plot aimed to eliminate Elizabeth i and to free Mary, Queen of Scots. When his case was brought before the Privy Council, the services of two leading lawyers, namely, Alberico Gentili and Jean Hotman was sought to determine whether the Ambassador was entitled to immunity. While Gentili argued that the official could only be expelled, Hotman contended that he had to be imprisoned as he had abused his position. Though the Ambassador was finally expelled, it gave rise to the rule that the diplomat enjoys immunity from criminal jurisdiction, subject to the receiving state’s right to act in self-defence against the violent acts of the diplomat.42
Also, during the above period, the concept of droit d’ambassade had come into vogue.43 It recognized the right of states to send and receive diplomatic representatives. Also, consequent to the adoption of the Treaty of Westphalia in 1648, the modern state-system emerged.44 The Treaty wanted to maintain the prevailing balance of power in Europe and thereby necessitated the close monitoring of the external situation.45 As a consequence, the establishment of permanent diplomatic missions became the normal practice.46
Over the next two centuries, an intense debate on the scope of diplomatic privileges and immunities took place.47 It was a focal point for many leading publicists of international law including Hugo Grotius, Ayrault, Albericus Gentilis, Richard Zouche, Van Bynkershoek and Emer de Vattel. These authors gave varied explanations for granting of diplomatic privileges and immunities. These writings have contributed to the development of three primary theories of diplomatic law, namely, the ‘theory of representative character’, the ‘theory of extraterritoriality’, and the ‘theory of functional necessity’.48 Each of these will be taken in turn.
2.2.1 Theory of Representative Character
According to this theory, as the diplomatic agent represents the sovereign state, he should not be subjected to the jurisdiction of the receiving state and be liable to its laws.49 This theory is essentially rooted in the history of international relations and is based on the independence and sovereign equality of states.50 This theory highlights the fact that the freedom from territorial jurisdiction of the receiving state is essential for the preservation of peace and friendly relations among states.51 Significantly, under this theory the diplomat enjoys immunity from local jurisdiction not only because that he is representing another sovereign but his subjugation to the laws of another state would be incompatible with his duties to the sovereign.52
2.2.2 Theory of Extraterritoriality
This theory postulates that the territory of the receiving state used by the diplomatic mission or the diplomat should be considered the territory of sending state.53 It was originally conceived to exempt the diplomatic mission from the jurisdiction of the receiving state and to extend the cover of diplomatic immunity not only to the diplomat and his mission but also to his residence and the premises of the mission.54 This theory was very influential when the concept of jurisdiction was territory-based rather than personality-based, and its current relevance is therefore very much in doubt as it would provide a blanket protection to all actions falling within its very broad ambit.55 In effect, this theory neither provides a scope for balancing the claim of immunities and privileges nor does it provide a means through which the non-official actions of the diplomat can be assessed and controlled. In particular, the invocation of this theory by the violators of law who take refuge in the premises of the mission makes this theory a most controversial juridical basis for the granting of diplomatic immunities.56
2.2.3 Theory of Functional Necessity
Under this theory, diplomatic privileges and immunities are not unlimited and extend only to official functions of diplomats and diplomatic assets. This theory is based on the belief that the grant of immunities is essential for the normal functioning of international affairs.57 Unlike the two theories already examined, it is generally reasoned that the theory of functional necessity provides a strong juridical basis for the development of the modern law of diplomatic immunity.58 In point of fact, the Vienna Conventions also expressly endorse this approach as their guiding philosophy. The Preamble of the Vienna Conventions commonly declare that ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing states’.59 In the end, a comprehensive evaluation of all the three theories point out that the theory of functional necessity along with the theory of representative character provides a useful framework to determine the degree of immunity and privileges that will be admissible in the given situation.60
Following on the above, the passage of the English Diplomatic Privileges Act of 1708 was an important historical moment given its general contribution to the development of rules relating to the granting of diplomatic privileges and immunities, including on the basis of the theory of functional necessity.61 The Act is generally hailed as one of the early attempts at the domestic codification of diplomatic law.62 It was promulgated as a result of the case of Mattueof, wherein the Russian Ambassador to England, Mr. Andrew Artemonowitz Mattueof, was arrested and ill-treated by his creditors when he was trying to leave the country.63 It stipulated that diplomatic staff enjoyed full immunity from civil and criminal proceedings. It also exempted them from local taxes.64 However, it allowed only a limited extent of diplomatic immunity in respect of administrative and technical staff members of the diplomatic station. The Act provided that the holders of such posts were protected only in respect of actions taken by them in the course of their official duties, which implied that they would be liable for all non-official acts including their criminal conduct. The Act also had a novel provision for immunity from legal process in respect of ambassadors and their servants and it even made the issuance of such process a punishable offence.65
2.3 The Vienna Conventions
On the international attempts for codification in this area, the first was made by the Congress of Vienna in 1815. It adopted the Regulation on the Classification of Diplomatic Agents as a part of the Final Act of the Congress.66 This was followed by the Inter-American Conference organized by the Pan-American Union held in Havana in 1928, which adopted the two conventions, namely, the Convention on Diplomatic Officers and the Convention on Consular Agents.67 Subsequently, in 1932 Harvard Research in International Law published a Draft Convention on Diplomatic Privileges and Immunities, an effort that did not succeed for failure to garner the universal acceptance of states.68
However, the proposal for a codified international law on diplomatic immunities received a major boost with the establishment of the United Nations.69 In one of its earliest sittings, the International Law Commission (
Two years later a similar
Comparison of immunities and privileges of diplomatic and consular officers and the representatives of
a For further detailed discussion on the scope of ‘grave crimes’, See Section 4.1.2 of this article.
c Maria Flemme, ‘Due Diligence in International Law’ (
d B. Sen (n 46) 107.
3 The Problem of Abuse of Diplomatic Privileges and Immunities
As discussed in the Introduction, diplomatic immunity is a fundamental principle of international relations77 and it was established to promote international relations by protecting diplomats ‘from retaliation in time of international conflicts’.78 However, there have been an increasing number of challenges to the object and purpose of the Vienna conventions, as diplomats, their family, and consular officials have increasingly paid scant respect for laws and regulations of the receiving states and have frequently abused their immunities and privileges, necessitating the invocation of local jurisdiction by the receiving state.79 At the same time, it is equally true that at times receiving states have rejected claims of diplomatic immunity on flimsy grounds, including the assertion that such immunity is available only for ‘official acts’. It is submitted that the abuse of privileges and immunities by diplomats, as well as by the states that receive them, constitute one of the major challenges to the continued success of the Vienna Conventions.
It may be noted that out of all the abuses of diplomatic immunity, abuses of criminal nature merits special scrutiny.80 The crimes committed by them range broadly from drunk driving, assault, child abuse, possession of deadly weapons, bribery, slavery, money laundering, rape and even murder.81 Leading international cities, such as New York, Geneva, London and Washington have been prone to the occurrence of ‘diplomatic crimes’, given the relatively high number of foreign embassies and international organizations in these places. In fact, this problem is particularly acute in the
Of all the crimes with which the diplomatic agents have been charged, the crime of human trafficking has been prevalent and widespread. To curb the menace of human trafficking, the
In the case of London, the situation is no different. In 2004, the
Even recent Indian history is replete with many cases of such abuses.92 In 2013, it was reported that the Consul General of Bahrain in Mumbai was accused of molestation of a 49-year-old woman working as a manager at a residential society where the diplomat also resided.93 Although he was suspected for the crime of molestation, he was not arrested as he enjoyed diplomatic immunity.94 Similarly, in 2014 the Indian police filed a criminal case against certain diplomats of Israel for injuring an airport immigration official, though no action was taken against them.95 These cases demonstrate that foreign officials have a greater misunderstanding about the concept of diplomatic privileges and immunities.96
4 The Recent Controversies Involving India
Recently, the scope of diplomatic and consular immunity and privileges was contested in two cases in which India was involved. The first case concerned the abuse of personal immunity by an Indian Consular Officer in New York, while the second concerned the alleged deprivation of immunity of the Ambassador of Italy by the Indian government and the Supreme Court of India.
4.1 Arrest of Devyani Khobragade
4.1.1 Factual Background
In this case, the then Deputy Consul-General of India in New York, Devyani Khobragade hired one Sangeeta Richard from India as a domestic servant in 2012 on certain contractual terms.97 Subsequent to her arrival and commencement of work in the
Subsequent to the filing of charges by the
As a response to the above treatment and also to protect Devyani under the shield of full diplomatic immunity, on January 8, 2014, the Government of India re-designated her as a Special Adviser in the Permanent Mission of India to the United Nations.103 With this ‘protective’ measure, Devyani left
4.1.2 Nature and Scope of Consular Immunity Under
This implies that the judicial or administrative authorities of the receiving states are not completely barred from exercising their power to arrest any consular officer. It merely provides that the arrest of the consular officer will be subject to two conditions: Firstly, the crime should be of such nature that it can be classified as a ‘grave crime’ and secondly, the decision to arrest the consular officer should be taken by a judicial authority. In the instant case, though there is no doubt as to the ‘judicial’ nature of the decision to make arrest, there is some uncertainty as to whether the crime committed by the consular officer came within the scope of ‘grave crimes’.
It is pertinent to note that the term ‘grave crime’ has not been defined by the
In this connection, a remedy of the nature of a provision as exists in the
Thus, in the absence of definition and other feasible solutions, cooperation between the signatories is the only way to avoid friction over the application of this exception. Accordingly, it is emphasised that the scope of this term cannot be completely left to the determination of the receiving states, as the potential of narrow interpretation may effectively curtail the rights provided under the Convention. In this respect, the arrest of consular officers would be harmful to the interests of both the sending and the receiving states. In this connection, it is poignant to look into the purpose for which this provision was codified in the Convention. The Commentaries observed that:
The privilege under this paragraph is granted to consular officials by reason of their functions. The arrest of a consular official hampers considerably the functioning of the consulate and the discharge of the daily tasks—which is particularly serious inasmuch as many of the matters calling for consular action will not admit of delay (e.g., the issue of visas, passports and other travel documents; the legalization of signatures on commercial documents and invoices; various activities connected with shipping, etc.). Any such step would harm the interests, not only of the sending State, but also of the receiving State, and would seriously affect consular relations between the two States. It would therefore be inadmissible that a consular official should be placed under arrest or detention pending trial in connexion with some minor offence.115
Thus, it is clear that a fine balance needs to be maintained between the power of receiving states to make arrest where grave crimes are in issue, and the interests of sending states in ensuring that consular services are available without much interruption and that the personal inviolability of consular officers is respected in all required situations. In this connection, it is suggested that certain procedural safeguards may be built into the mechanism of the
Applying this analysis to the facts of the case, it cannot be stated that the
Moreover, as the receiving state it is incumbent upon the
4.1.3 Immunity Under the Convention on the Privileges and Immunities of the United Nations, 1946
As mentioned earlier, subsequent to the arrest of Devyani, on 18 December 2013, India re-assigned her official position so that she could claim full diplomatic immunity to avoid further judicial process. This was considered to be an abuse of the
Moreover, despite the request of the
Thus, it can be argued that India is under an obligation to waive the United Nations immunity of Devyani as both the conditions for waiver of immunity are satisfied. It should be noted that the invocation of immunity by India on behalf of Devyani not only frustrates the criminal complaint brought by Richard but it can also be waived without prejudice to the performance of her official assignments. Accordingly, it is submitted that the Indian government’s rejection of the waiver of immunity preventing her criminal prosecution would not be in line with the terms of the Convention on the Privileges and Immunities of the United Nations.
The above discussion once again clearly shows that how far diplomatic immunity and privileges can be abused by diplomats and states.131 In the instant case, although the consular officer had initially entered into a formal employment contract with the domestic employee and had agreed to pay her the wages ‘at the prevailing or minimum wages rate as required by law, whichever is greater’,132 she did not pay the wages as stipulated under the contract. On the contrary, she entered into another contract with the domestic employee privately so that she could pay her the wages below the statutory limit133 in violation of the duty to respect the laws and regulations of the receiving state under the
Also, it is not appropriate on the part of India to refuse to waive immunity of Devyani as sought by the
4.2 Italian Marines Case and the Issue of Diplomatic Immunity
4.2.1 Factual Background of the Case137
Since the collapse of the central government in Somalia in 1991, the world community has witnessed a dramatic increase in the incidents of piracy and armed robbery at sea off the coast of Somalia.138 This problem has continued unabated despite the various initiatives taken by the United Nations and the members of the international community.139 To protect their ships and seamen from piracy, the Italian government took certain legislative measures under which certain armed operatives, known as ‘Team Latorre’ were asked to be on board the merchant vessel M. V Enrica Lexie. When the vessel was crossing the Arabian Sea on its journey from Muscat to Djibouti on February 15, 2011, it encountered an Indian fishing boat ‘St Antony’ at a distance of about 20.5 nautical miles off the coast of the State of Kerala. The Italian marines allegedly mistook the Indian boat for a pirate vessel and opened fire resulting in the death of two Indian fishermen.
Subsequently, the two Italian marines on board the merchant vessel were arrested and they were sought to be tried for various offences under the Indian Penal Code and the Suppression of Unlawful Acts against the Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (
Subsequently, the Italian marines requested the permission of the Supreme Court to visit Italy for casting their votes in the national elections.146 This application was filed with the support of the Italian Embassy in India. In fact, the Italian Ambassador to Italy Daniele Mancini had filed an affidavit before the apex court that he would take full responsibility to ensure that the applicants return to India in accordance with the orders of the Supreme Court.147 Relying mainly upon this affidavit of undertaking, and taking into account the fact that Italian law does not permit the marines to franchise their votes through postal ballot, the Supreme Court granted permission to the marines to visit their home country for participation in the election. The Court made it clear that the bail granted to the marines was subject to the condition that they would return to India within four weeks, i.e. before March 22, 2013.
However, on March 11, 2013, the Italian government sent a note verbale to the Indian Ministry of External Affairs (
In protest of the restraining order of the Supreme Court, the Italian Embassy in New Delhi contended that ‘[a]ny restriction [on] the freedom of movement of the Ambassador of Italy to India including any limitation [on] his right [to] leav[e] the Indian territory, will be contrary to the [i]international [o]obligations of the receiving State to respect his person, freedom, dignity and function’.152 When the Supreme Court met again on March 18, 2013, the Attorney General brought the claim of diplomatic immunity under the
However, on March 21, 2013, the Italian government expressed its desire to return the marines to India if assurances were given that they would not be arrested on their return or that they would not be sentenced to the death penalty in the event of conviction by the Indian court.157 The Indian government clarified that the two marines would not be liable to arrest if they returned within the time stipulated by the Supreme Court. It further opined that the case ‘would not fall in the category of matters which attract the death penalty, that is to say the rarest of rare cases’.158 In view of these assurances, Italy returned the marines to India on 22 March 2013. At a subsequent hearing on April 2, 2013, the Supreme Court recognized these developments and vacated the restraining order imposed on the diplomat, noting that ‘[s]ince the petitioners […] have returned to India within the stipulated time, the undertaking given by the Ambassador of Italy in India, has been satisfied and [accordingly] he is discharged there from’.159 In this context, this section will examine and analyse the observance of the
4.2.2 Scope of Diplomatic Immunity Under
184.108.40.206 Immunity from Criminal Jurisdiction
At the outset, it is important to note that the Supreme Court must have satisfied itself about the personal jurisdiction of the court before issuing any order imposing the restrictions against the Italian diplomat. Article 31 of the
220.127.116.11 Waiver of Immunity
However, during the hearing, the Supreme Court observed that a person who has approached the court as a petitioner will not be entitled to any diplomatic immunity and thereby brought in arguments of waiver. Even the Government of India contended that the Ambassador had voluntarily participated in the proceedings on behalf of the Government of Italy and thereby waived his diplomatic immunity. In this connection, the Affidavit of Undertaking filed by the diplomat on behalf of his government is cited as a principal argument. The diplomat through the Affidavit of Undertaking filed by him on March 9, 2013, ‘has taken full responsibility’ to ensure that the marines return to India, which fact was also recorded by the court in its order passed on February 22, 2013.163 Also, there were other circumstances such as, the assurance of the Italian Embassy to see that the marines remained under their control and to report to court on their whereabouts.164 Moreover, in view of its contentions on the issue of jurisdiction, the Italian Embassy had shown its special interest in the freedom of the marines and represented the Italian government in all legal proceedings ever since the arrest of the Italian diplomats.165
However, it is very doubtful whether these facts and circumstances can constitute a valid case of waiver of diplomatic immunity. In this context, a reference may be made to Article 32 of the
However, there is considerable discussion as to whether constructive waiver can also be considered as a valid waiver of the diplomatic immunity.169 In the leading case of Propend Finance Pty. Limited and Others v Sing, speaking for the High Court of England and Wales, Justice Laws had outlined the possibility that ‘constructive waiver’ is also a legally acceptable method of waiver.170 Yet, it is very doubtful whether such a proposition can be universally accepted and that too in the context of criminal proceedings. Moreover, in this connection, it is pertinent to refer to the observation of the International Law Commission, wherein it has sought to distinguish between civil and criminal proceedings for the application of waiver.171 It suggested that in the case of criminal proceedings, waiver must be express, though in the case of civil or administrative proceedings, waiver may be express or implied.172 In such a scenario, it is emphasized that any exception to the concept of diplomatic immunity should be interpreted narrowly and in line with the objects and purposes of the Vienna Conventions. Thus, it is opined that the position of the Indian government and the Supreme Court that the Italian diplomat lost his immunity by way of constructive waiver has no legal basis.
18.104.22.168 Preclusion of Immunity and Initiation of Proceedings
The observation of the Supreme Court that a person who has approached it as a petitioner cannot claim any diplomatic immunity may also be viewed as the preclusion of immunity due to initiation of proceedings contained in Article 32(3) of the
Reverting to the present case, even if we consider the submission of the affidavit of undertaking as amounting to ‘initiation of proceedings’, the possibility of it acting as a valid exception to immunity is slim, due to the other legal requirement that the ground is applicable only ‘in respect of any counter-claim directly connected with the principal claim’.175 It may be observed that the use of the terms such as ‘principal claim’ and ‘counter-claim’ indicates the possibility that it is related to ‘civil proceedings’. According to the Indian law of civil procedure, counter-claim is a claim brought by the defendant against the plaintiff seeking certain relief from the plaintiff. However, in the case in hand, no counter claim was involved. At the most, the court could therefore try the diplomat for committing contempt of court for wilful breach of undertaking given to the court.176 But contempt proceedings, though they are incidental to the main proceedings, cannot be treated as the equivalent of counter-claim for they are not brought by the defendant against the plaintiff for determination of certain rights and duties or for grant of some remedy. On the contrary, contempt proceedings were launched by the court against the alleged contemnors, they are of sui generis nature, and they exist for the purpose of vindication of the authority of the court. Accordingly, the argument that since the diplomat had filed the affidavit of undertaking, he would be precluded from asserting his immunity is arguably not correct and is not supported by the
22.214.171.124 Restraining Order
Moreover, the issuance of the restraining order against the diplomat is a direct violation of the
126.96.36.199.1 Freedom and Dignity
It is contended that the order of the Supreme Court imposing restrictions on the movement of the Italian diplomat also constitutes an attack on the freedom of the diplomat. It may be noted that the
188.8.131.52.2 Right of Departure
As discussed above,
Also, in this connection, the Indian government cannot argue that it was merely a technical breach as the diplomat was not actually prevented from leaving the country.185 It is contended that if the observation of the International Court of Justice (
184.108.40.206.3 Personal Inviolability
Similarly, the action of the Indian government and the Supreme Court will also amount to a violation of the principle of personal inviolability incorporated under the
However, it is equally true that the diplomat also had the duty to ‘respect the laws and regulations of’ India’189 and to abide by the judicial undertakings he had given. Also, as contended by the then Attorney-General of India, the violation of the undertaking given by the diplomat will be considered as the promises of the sovereign and hence, they should not be violated. Yet, it is pointed out that it would be wrong if India attempts to link his breach of judicial undertaking to the enjoyment of privileges and immunities, as the
Though this issue has died-down, following the return of the marines, the two Indian cases discussed above reflect the hard realities of the implementation of the Vienna Conventions. It also brings to light once again how the state-parties to the Vienna Conventions are selectively interpreting the terms and texts to suit their convenience. Also, it is interesting to note the differing viewpoints of India on identical situations. For instance, in the case of the Italian Ambassador, the Indian government purported to argue that he had scant respect for Indian laws and institutions by breach of his undertaking given to court, but that is what the Indian Consular officer did in New York by his ill-treatment of the domestic worker. This raises the question of why India interprets the diplomatic law restrictively at home but liberally in
5 Consequences of Breach of Duty to Respect the Local Laws and Regulations
The two cases discussed above highlight the friction between the foreign officials’ claim of privileges and immunities and their duty to respect the local laws and regulations. However, in the existing literature, the emphasis is on the scope of privileges and immunities rather than on the legal nature of these duties and the consequences of their breach, especially, the duty to respect the local laws and regulations. This section seeks to address them.
The textual provisions of both the
In this connection, it may be noted that a number of provisions of the Vienna Conventions refer to the ‘local laws and regulations’. In particular, Articles 26 (freedom of movement) and 36 (exemption from customs duties and inspection) of the
However, only in cases of Articles 41(respect for the laws and regulations) and 42 (professional or commercial activity) of
Moreover, diplomatic or consular immunity does not imply exemption from all jurisdictions. In particular, the offending foreign official may be prosecuted or be answerable in the courts of the sending state as he is not immune from the legal process of the sending state. Similarly, he may be answerable in the receiving state itself, if the sending state decides to waive his immunity. In addition to these two major possibilities, sometimes, it is also suggested that the official may be subjected to post-immunity prosecution in the receiving state, that is, prosecution after the termination of his functions with the mission, though its invocation is very controversial.204
Given the fact that foreign officials are exempted from liability by the receiving state, a question which naturally arises out of the above analysis is how these duties are enforced and what consequences will follow in case of their breach. It is submitted that the receiving state where the breach has occurred will not be left without any remedy, though not necessarily will it mean a legal remedy. Such remedies range from ordinary diplomatic measures to the drastic step of severance of foreign relations and are supported by the text of the Vienna Conventions and the general international law as well as state diplomatic practices. Among them, the first recourse which will be open to the receiving state where the breach of duty to respect the local law has occurred is to draw the attention of the head of the foreign mission or the foreign government itself. Usually, this recourse can be had in such cases where the infraction is of a minor nature or where it has occurred for the first time. However, in cases where the receiving state wants to send out a stern message of the breach, it may summon the head of the mission and express its displeasure.205
Moreover, the receiving state may also interpret the provisions of the Vienna Conventions in a restrictive manner, although it will be subject to the limits of international law.206 The natural consequence of this would be to withdraw the discretionary privileges currently enjoyed by the offending diplomatic mission. This may take a number of forms such as a request to downsize the mission,207 decline permission for establishment of branches of the mission in other localities,208 prohibit the use of wireless transmitter equipment,209 impose quotas on the import of certain products used by the mission,210 or take measures restricting the entry into such zones on grounds of national security.211 However, in extreme cases, where these measures are considered inadequate, the drastic steps of requesting the recall of the offending official or the declaration of the official as persona non grata or even the severance of foreign relations may be taken.
Though these actions as such do not involve violation of any international legal obligation, the receiving state shall ensure that any of its actions and omissions including the withdrawal of discretionary privileges shall not violate any international legal obligation, especially, the receiving state’s obligation to provide immunity. In other words, what is permitted is diplomatic retorsions212 and not anything which is expressly prohibited under international law.
The above analysis shows that it is not true that the diplomatic and consular duties are completely devoid of any legal merit. On the contrary, the breach of diplomatic duties may have a legal impact and, more importantly, diplomatic and political consequences. Also, as the preambular language of the Vienna Conventions declares, the immunities and privileges provided to the foreign officials are ‘not to benefit individuals but to ensure the efficient performance of [their] functions’. Accordingly, the immunity shall not act as a licence to disrespect local laws and regulations even when efficient performance of functions does not demand the deviation. This underlines the need for delicate balance between the two important but conflicting goals of the Vienna Conventions.
The principle of diplomatic immunity is a well-established principle of international law. In fact, diplomacy is a fundamental fact of international life and without which, the international life will be in peril. In other words, it is very essential for the promotion of friendly relations among states, be it trade, peace, security or cultural relations. The Vienna Conventions, considered as the major achievement of the United Nations, born out of the recognition of these facts.
However, in the recent past, it is disturbing to note that diplomatic crimes and misconduct is on the rise. It is observed that the abuse of privileges and immunities by the diplomats as well as by the governments constitute one of the major challenges to the continued success of the Vienna Conventions. Also, rule of law demands that even the crimes committed by the diplomats should be duly brought to book. However, on many occasions, it is found out that the problem is due to the broad interpretations of the immunities and privileges put upon by the states. Hence, it is suggested that the process of interpretation should be guided by the theory of functional necessity, which is embodied in the Vienna Conventions. It emphasizes that the object behind diplomatic protection is ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’ and not because that the diplomat is the representative of another sovereign.
It is said that the principle of personal inviolability is ‘the most fundamental’ and yet ‘the oldest established rule of diplomatic law’. However, in the case of consular officers, the scope of personal inviolability is very much limited in the sense that, they may be liable for arrest or detention for grave crimes, provided such actions are in pursuance of a decision by the competent judicial authority. Yet, in the absence of any textual provision as to what constitutes ‘grave crimes’, it is necessary to maintain a fine balance between the power of the receiving states to make arrest in such cases and the interests of the sending states in ensuring that consular services are available without undue interruption. Also, in view of the escalations of diplomatic crimes, it is estimated that the true scope of this exception is going to be a major issue in the coming years. Accordingly, it is suggested that certain procedural safeguards may be built into the mechanism of the
Moreover, it is observed that diplomatic immunity law itself foresees the possibility of its abuse and ‘specifies the means at the disposal of the receiving State to counter any such abuse’. They mainly include the options of declaration of persona non grata and the waiver of privileges and immunities by the sending state. Though these options are not very effective in state practice, it is submitted that the broader interpretation of the requirements of waiver should not be viewed as an option to counter the menace of the abuses of the privileges and immunities. It is suggested that any exception to the concept of diplomatic immunity should be interpreted narrowly and in line with the goals and purposes of the Vienna Conventions.
Further, on the question of re-appointment of indicted consular officers to
Also, the Vienna Conventions prescribe a number of duties including the duty to respect the laws and regulations and the duty not to interfere in the internal affairs of the receiving state. However, the consequences for the breach of such duties are not laid down in the Conventions. Though the language of the Vienna Conventions settles the non-enforceable nature of these duties beyond any doubt by use of words ‘without prejudice to [the] privileges and immunities’, it should not be forgotten that they are one of the key components of the composite scheme and hence their significance should not be whittled down.
In the end, it is submitted that, pragmatic solutions need to be devised so that a robust mechanism for dispute settlement is built into the framework of Vienna Conventions. Though the Optional Protocols to the Vienna Conventions (Concerning the Compulsory Settlement Disputes), through its Article ii, enables the parties to resort to arbitration, a dedicated arbitral framework along with a complete overhaul of the Vienna Conventions will go a long way in addressing the contemporary problems.
For full text see Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500
J. Craig Barker, The Protection of Diplomatic Personnel (1st edn, Ashgate 2006) 63.
Grant V. McClanahan, Diplomatic Immunity: Principles, Practices, Problems (1st edn, C. Hurst & Co. 1989) 44.
Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Fourth edn, Oxford University Press 2016) 1–2; Rosalyn Higgins, ‘Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience’ (1985) 79 American Journal of International Law 641.
For full text see Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967) 596
Case Concerning United States Diplomatic and Consular Staff in Tehran (
For a list of such cases, See Mitchell S. Ross, Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities, American University International Law Review, (1989) Vol. 4, Iss. 1, 173–205, especially, pp. 184–188. It is also equally true that the diplomats are also denied the protection which they are otherwise entitled under the Vienna Conventions. The Tehran hostage case is a clear example for such scenario.
M. Cherif Bassiouni, International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms (Vol 2, 3rd edn, Martinus Nijhoff 2008) 234; Emma Reynolds, ‘Diplomat tries to claim immunity after smuggling £160,000 of cannabis sprinkled with chilli powder into
Chas W. Freeman Jr, ‘Diplomacy’, Encyclopedia Britannica Online (2015). <http://www.britannica.com/topic/diplomacy> accessed on 5th April 2017.
Rudiger Wolfrum, ‘Diplomacy’, Max Planck Encyclopaedia of Public International Law (Vol. 3, 2013) 97; For additional materials on historical evolution of the diplomatic officials, See Ivor Roberts (ed), Satow’s Diplomatic Practice (6th edn, Oxford University Press 2009) 3–21; Keith Hamilton and Richard Langhorne, The Practice of Diplomacy: Its Evolution, Theory and Administration, (2nd edn, Routledge 2011) 7–28; Bardo Fassbender and Anne Peters, The Oxford Handbook of the History of International Law, (1st edn, Oxford University Press 2012) 813–839.
Eileen Denza (n 4) 1.
Walter Carlsnaes, Thomas Risse-Kappen and Beth A Simmons, Handbook of International Relations (1st edn,
J. Craig Barker (n 2) 29; Also See, Sally Marks, ‘History of Diplomacy’, Britannica Encyclopaedia Online (2013) <http://www.britannica.com/EBchecked/topic/164602/diplomacy> accessed on 5th April 2017.
Roger Boesche, The First Great Political Realist: Kautilya and His Arthashasthra (1st edn, Lexington 2002); Kalidas Nag and V R Ramachandra Dikshitar, ‘The Diplomatic Theories of Ancient India and the Arthashastra, (1927) 6:1 Journal of Indian History, 15–35.
Sally Marks (n 13).
Arvind Gupta, ‘Need for a Modern Arthashastra’, The New Indian Express (New Delhi, 14 April 2014) <http://www.newindianexpress.com/columns/Need-for-a-Modern-Arthashastra/2014/04/14/article2166746.ece> accessed on 5th April 2017.
Arthashastra Sutra 2.10.47. R. P. Kangle, The Kautilya Arthasastra, Part 2: An English Translation with Critical and Explanatory Notes, (8th Reprint, Motilal Banarsidass Publishers, 2010), 95.
Gautam P. K., One Hundred Years of Kautilya’s Arthashastra (1st edn, 2013,
Subodh Kapoor, Ancient Hindu Society (1st edn,
V. R. Ramachandra Dikshidar, War in Ancient India (1st edn, Macmillan 1944) 324.
They are well described in Sutra 1.19.34; R. P. Kangle (n 17).
Gautam P. K., One Hundred Years of Kautilya’s Arthashastra (n 19) 25.
Sally Marks (n 13).
Jovan Kurbalija, Dietrich Kappeler and Christiaan Sys, ‘Evolution of Diplomatic Privileges and Immunities’ (DiPLO, 2008) <http://www.diplomacy.edu/resources/general/evolution-diplomatic-privileges-and-immunities> accessed on 5th April 2017.
V. R. Ramachandra Dikshitar, War in Ancient India (1st edn,
George L. Hart iii, Poets of the Tamil Anthologies: Ancient Poems of Love and War (Princeton University 1979) 15 (Poem Number 305).
A. Palaniswami, ‘Diplomacy of the Ancient Tamils’ (1976) Journal of Tamil Studies 28–29.
Keith Hamilton (n 10) 30–31; Tansen Sen, Buddhism, Diplomacy and Trade: The Realignment of Sino-Indian Relations, 600–1400 (1st edn, Association for Asian Studies 2003).
Timothy J. Lynch, ‘Theories of Diplomacy’, Oxford Encyclopedia of American Military and Diplomatic History (Oxford University Press 2013) 330.
Linda S. Frey and Marsha L Frey, The History of Diplomatic Immunity (1st edn, Ohia State University 1999) 16.
J. Craig Barker (n 2) 30.
David J. Bederman, International Law in Antiquity (1st edn, Cambridge University Press 2001) 85.
J. Craig Barker (n 2) 30.
Olga Tellegen-Couperus, Law and Religion in the Roman Empire (1st edn, BRILL 2012) 133.
Douglas Johnston and W. Michael Reisman, Historical Foundations of World Order: Tower and the Arena (1st edn, BRILL 2007) 358.
Stephen C. Neff, ‘Historic Moments in International Law: The Envoy from Hell—and What to Do with Him’ (International Judicial Monitor, Spring 2014) <http://www.judicialmonitor.org/archive_spring2014/historic.html> accessed on 5th April 2017.
Barry Cohen, ‘The Diplomatic Relations Act of 1978’ (1979) 28 Catholic University Law Review 797 and 804.
Frey and Frey (n 33) 126.
However, quoting Encyclopedia Britannica, Costas M. Constantinou is of the opinion that the term had its origin only from late eighteenth century. See Costas M. Constantinou, On the Way to Diplomacy (1st edn, University of Minnesota 1996).
Generally, B. Sen, A Diplomat’s Handbook of International Law and Practice (1st edn, Martinus Nijhoff 1965) 80.
Eileen Denza, ‘Vienna Convention On Diplomatic Relations, (United Nations Audiovisual Library of International Law, 2009) http://www.thehindu.com/thehindu/2003/06/10/stories/2003061000701000.htm accessed on 5th April 2017.
Timothy J. Lynch (n 32).
J. Craig Barker (n 2) 42; see V. S. Mani, ‘Diplomatic law and justice’, The Hindu (New Delhi, 10 January 2003).
Ibid 81; Rene Vark, ‘Personal Inviolability and Diplomatic Immunity in Respect of serious Crimes’ (2003) 7 (112) Juridica International <www.juridicainternational.eu/public/pdf/ji_2003_1_110.pdf> accessed on 5th April 2017.
B. Sen (n 45) 97.
Montell Ogdon, Juridical Bases of Diplomatic Immunity: A Study in the Origin, Growth and Purpose of the Law (1st edn, J. Byrne & Co 1936) 144; Grant V. McClanahan, (n 3) 29.
Cornelius Van Bynkershoek and Tenney Frank, Quastionum Juris Publici Libri Duo; the translation, Oceana 1964).
B. Sen (n 46) 80.
Montell Ogdon, ‘The Growth of Purpose in the Law of Diplomatic Immunity’ (1937) 31 American Journal of International Law 449.
Timothy J. Lynch (n 32).
Elieen Young, The Development of the Law of Diplomatic Relations, British Yearbook of International Law, (Vol 40, Oxford University Press 1964) 141.
Montell Ogdon (n 51) 82.
Nina Maja Bergmar, ‘Demanding Accountability Where Accountability is Due: A Functional Necessity Approach to Diplomatic Immunity under the Vienna Convention’ (2014) 47 Vanderbilt Journal of Transnational Law 501.
In this connection, it is pertinent to refer to Article 3 of the Vienna Convention on Diplomatic Relations (
For comparative evaluation of all the three theories, See Mitchell S Ross (n 7); Nina Maja Bergmar (n 58); Hayatullah Khan Khattak, ‘Diplomatic Privileges and Immunities: The Continuing Relevance of the Functional Necessity Theory’ (2012), 3:3 Criterion Quarterly.
Ivor Robets (n 10).
Marc Cogen, The Comprehensive Guide to International Law (Die Keure 2008) 410.
Mattueof’s case (109) 10 Mod Rep 4; Frey and Frey (n 33) 7.
Generally, Hilaire Barnett, Constitutional and Administrative Law (10th edn, Routledge 2013) 99.
J. Craig Barker (n 2) 45.
Bhagevatula Satyanarayana Murty, The International Law of Diplomacy: the Diplomatic Instrument and World Public Order (1st edn, Martinus Nijhoff 1989) 115.
Eileen Denza (n 46).
Rama Prasad Dhokalia, Codification of Public International Law (1st edn, Manchester University 1970) 326.
J. Craig Barker (n 2) 63.
For full text, See
Ibid art 41.
Ibid art 43.
Ibid art 5.
Convention on the Privileges and Immunities of the United Nations (adopted 13 February 1946, entered into force 17 September 1946) 1
Erik M. G. Denters and Nico Schrijver, Reflections on International Law from the Low Countries: In Honour of Paul de Waart (Martinus Nijhoff 1998) 163.
Mitchell S. Ross (n 7) 174.
The subject of abuse of diplomatic immunities and privileges has attracted a large amount of scholarship, especially in the recent times. To illustrate, See Rosalyn Higgins (n 4); Amanda M. Castro, ‘Abuse of Diplomatic Immunity in Family Courts: There is Nothing Diplomatic about Domestic Immunity’ (2014) 47 Suffolk University Law Review 353; Emily F. Siedell, ‘Swarna and Baoanam: Unravelling the Diplomatic Immunity Defense to Domestic Worker Abuse’ (2011) 26 Maryland Journal of International Law 173; Nina Maja Bergmar (n 58).
William G. Morris, ‘Constitutional Solutions to the Problem of Diplomatic Crime and Immunity’ (2007) 36 Hofstra Law Review 601.
Kitty Donaldson, ‘Murder, rape, assault: the secret crimes of London’s diplomats’ The Independent (London, 16 July 2006) <http://www.independent.co.uk/news/uk/crime/murder-rape-assault-the-secret-crimes-of-londons-diplomats-408170.html> accessed on 5th April 2017.
A-3, G-5 and B-1 are the types of temporary visas issued by
Human Rights Watch, ‘Abuse of Domestic Workers with Special Visas in the United States’ (
Mitchell S. Ross (n 7).
Martina E. Vandenberg and Alexandra F. Levy, ‘Human Trafficking and Diplomatic Immunity: Impunity No More?’(2012) 7 Intercultural Human Rights Law Review 77, 84.
Ibid 78 (‘Impunity has long been the norm’).
For a recent report, See Ludovica Laccino, ‘Britain’s Diplomats Abuse Their Immunity to Enslave Human Traffic Victims’ International Business Times (London, November 26, 2014) <http://www.ibtimes.co.uk/britains-diplomats-abuse-their-immunity-enslave-human-traffic-victims-1476772> accessed on 5th April 2017.
Martina Vandenberg (n 91).
Sagar Rajput, ‘Bahrain diplomat accused of abusing woman sent home’ Mid Day (Mumbai, 29 December 2013) <http://www.mid-day.com/articles/bahrain-diplomat-accused-of-abusing-woman-sent-home/246384> accessed on 5th April 2017.
‘India lodges criminal case against Israeli diplomats’ (Islamic Invitation Turkey, 7 April 2014). <http://www.islamicinvitationturkey.com/2014/04/07/india-lodges-criminal-case-against-israeli-diplomats/> accessed on 5th April 2017.
See Mitchell S. Ross (n 7) at 176. Recently, in Pakistan, a suspected
United States v Devyani Khobragade  14 Cr.008 (
Ibid. Generally, fraud and misuse of visas, permits, and other documents is covered by 18
‘Devyani Khobragade letter to her colleagues: The full text’ Washington Post (New York, 18 December 2013). <http://www.washingtonpost.com/world/devyani-khobrogade-letter-to-her-colleagues-thefulltext/2013/12/18/aaad7018-6804-11e3-ae56-22de072140a2_story.html> accessed on 5th April 2017.
Lalit K. Jha, ‘Diplomat’s ‘Strip Search’ Part of Standard Procedures:
United States v Devyani Khobragade (n 101).
United States v Devyani Khobragade (n 101).
See Comparison of Immunities and Privileges of Diplomatic and Consular Officers and Representatives of
For the stand of the Indian government on this aspect, See
It is interesting to note that the Indian delegate had supported the adoption of the ‘grave crime’ exception. See Extract from the official records of ‘The United Nations Conference on Consular Relations’ (Vienna 4 March-22 April 1963) (18 April 1963)
Consular Relations Act 
S R Subramanian, ‘Role of Extradition in Human Rights: The Imperatives of Reforming the Indian Extradition Law’ (2014) 40 Commonwealth Law Bulletin 245.
Arthur Watts (n 114).
Forced Labor, 18
Forced Labor (n 120), sec 1589 (d). It is suggested that if a consular officer had committed or involved in any one of the international crimes, such as terrorism, drug trafficking, organized crime, no state would be taking a stand that it would not qualify as a grave crime, as every state is affected by such crimes.
Mala Das, “Devyani Khobragade arrest case: John Kerry calls India’s National Security Advisor, voices ‘regret’
Laura Collins, ‘There was
Also See Irina Kotchach Bleustein, ‘Achieving the Co-existence of Accountability and Immunity: The Prosecution of Devyani Khobragade and the Role Immunity in Criminal Cases’ (2015) 52 American Criminal Law Review 355, 372–373.
Ibid, art iv, sec 11 and art v, sec 18.
Ibid, sections 14, 20 and 23.
Also See, Irina Kotchach Bleustein (n 128).
The copy of the Complaint is available at the website of the
Ibid at 9, para 17.
Ibid, art 22(2). It could be argued that India had withdrawn only certain discretionary privileges rather than the privileges mandatorily required under the Vienna Conventions. Also, there seems to be no change in its commitment to provide basic security. But still it had to defend the measure that it does not impair the dignity of the mission.
Case W.P. 135/ 2012 and
Noah Black, ‘Criminal Jurisdiction over Maritime Security in the Indian Ocean’ (Cornell International Law Journal Online, 1 November 2013) <http://cornellilj.org/wp-content/uploads/2013/11/Black-Criminal-Jurisdiction-Martime-Security-final.pdf> accessed on 12th April 201711; Jon Bellish, ‘On Pirates,
Bibi van Ginkel and Frans-Paul van der Putten, International Response to Somali Piracy: Challenges and Opportunities (1st edn, Martinus Nijhoff 2010); S R Subramanian, ‘Fighting the Somali Pirates: The Ship-rider Agreement Breakthrough’ (Jurist Legal News and Research, 29 June 2009). <http://jurist.law.pitt.edu/forumy/2009/01/fighting-somali-pirates-shipriders.php> accessed on 12th April 2017.
Manimuthu Gandhi (n 141) 2.
On 29 May 2012, the learned Single Judge of the Kerala High Court dismissed the Writ Petition (Civil) No.4542 of 2012 on two grounds. The learned Single Judge held that under the Notification No.
Italian Marines Case (n 141).
Also See V S Mani, ‘It’s our boat, our courts’ The Hindu (New Delhi, 23 March 2013). <http://www.thehindu.com/opinion/lead/its-our-boat-our-courts/article4538854.ece> accessed on 12th April 2017. Professor V. S. Mani was of the opinion that no need for special court to try this case. Citing the Supreme Court decision in M V Elisabeth and Ors v Harwan Investment and Trading
Italian Marines Case (n 141) 158.
Previously, the marines were allowed to go to Italy on the occasion of Christmas by the High Court of Kerala. See K. C. Gopakumar, ‘Italian Marines Can Go Home for Two Weeks: High Court’ The Hindu (Thiruvananthapuram, 20 December 2012) <http://www.thehindu.com/news/national/kerala/italian-marines-can-go-home-for-two-weeks-high-court/article4221352.ece> accessed on 12th April 2017.
J. Venkatesan, ‘Supreme Court issues notice to Italian envoy & marines’ The Hindu (Chennai, 14 March 2014) <http://www.thehindu.com/news/national/supreme-court-issues-notice-to-italian-envoy-marines/article4508717.ece> accessed on 12th April 2017.
Legal Correspondent, ‘India has violated International Obligations: Italy’ The Hindu (New Delhi, 15 March 2014) <http://www.thehindu.com/todays-paper/tp-national/india-has-violated-international-obligations-italy/article4510856.ece> accessed on 12th April 2017.
Ministry of External Affairs, Government of India, ‘Press Statement on the Italian Marine Issue’ (
The copy of the order passed by the Supreme Court in this matter is available at <http://www.sidi-isil.org/wp-content/uploads/2013/03/Supreme-Court-of-India-Ambassador-Mancini.pdf> accessed on 12th April 2017. In the meantime, a public-spirited politician Subramanian Swamy had filed public interest litigation in the Supreme Court and sought action against the diplomat for contempt of court. It is reported that the Supreme Court had solicited the opinion of the Attorney General of India and in accordance with his advice, ordered an explanation from the Italian Ambassador on the retreat of assurances.
J. Venkatesan, ‘I don’t think you have immunity, Chief Justice tells Italian Envoy’ The Hindu (New Delhi, 18 March 2014) <http://www.thehindu.com/news/national/i-dont-think-you-have-immunity-chief-justice-tells-italian-envoy/article4521565.ece> accessed on 12th April 2017.
Republic of Italy Thr. Ambassador v Union of India (2013) 4
Sandeep Dikshit, ‘Diplomacy wins the day as Italian marines return’ The Hindu (New Delhi, 23 March 2013) <http://www.thehindu.com/todays-paper/diplomacy-wins-the-day-as-italian-marines-return/article4540324.ece> accessed on 20th April 2017.
Ministry of External Affairs, Government of India, ‘Statement in Loksabha by External Affairs Minister on return of two Italian marines to India accused in the killing of two Indian fishermen’ (
Italian Marines Case (n 141).
Generally, J. Craig Barker (n 2).
Italian Marines Case (n 141), Order of February 22, 2013.
Italian Marines Case (n 141), Order of January 1, 2013,
Massimilano Latorre v Union of India, High Court of Kerala (2012) 252
The rationale behind this position is that the diplomatic immunity has been conferred on the diplomat only in the interest of the sending state and hence it cannot be waived by the diplomat himself. See Anthony Aust, Handbook of International Law (2nd edn,
Act No. 43 of 1972 (came into force on 29th August 1972).
Arthur Goldberg, ‘The Shoot-Out at the Libyan Self-Styled People’s Bureau: A Case Of State-Supported International Terrorism’ (1984–85) 30 South Dakota Law Review 1, Especially, in the context of rule of sovereign immunity; Stephanie Markovich, ‘Balancing State Sovereignty and Human Rights: Are There Exceptions in International Law to the Immunity Rules for State Officials’ (2009) Potentia 57–74. Also, on the question of the relationship between the
Propend Finance Pty Ltd and Others v Sing and Others (1998) 111
Ibid at 99, para 3.
Ministry of External Affairs, Government of India, ‘Transcript of Media Briefing by Official Spokesperson’ (
Propend Finance Pty Ltd and Others v Sing and Others (n 174) 656.
The Indian Contempt of Courts Act, 1971 (Act No.70 of 1971) classifies the contempt of court in to two categories, such as civil contempt and criminal contempt. They are defined in Sections 2(b) and (c) respectively. An examination of the above provisions disclose that ‘wilful breach of an undertaking given to a court’ will come within the purview of the ‘civil contempt’, However, in the context of Italian marines case, Rajeev Dhavan argues that the conduct of the diplomatic agent will attract both civil and criminal contempt; See Rajeev Dhavan, ‘India and Italy’s handling of the marine standoff turned a political crisis into a legal farce’ Daily Mail (London, 24 March 2013) <http://www.dailymail.co.uk/indiahome/indianews/article-2298533/India-Italys-handling-marine-standoff-turned-political-crisis-legal-farce.html> accessed on 20th April 2017.However, in the case of Delhi Judicial Services Association v State of Gujarat
In this article, especially, with reference to the analysis of the
For customary origin of this rule, See G. R. Berridge, Embassies in Armed Conflict (1st edn, Bloomsbury 2012) 31 (‘The long-established custom that on the outbreak of war, enemy diplomats have a right to expect a prompt, safe and dignified departure reflects the desire of states to secure, by reciprocity, the same treatment for their own diplomats’).
See Stefan Talmon (n 141) 26–27.
Oscar Schachter, ‘Human Dignity As A Normative Concept’ (1983) 77 American Journal of International Law 848 (‘a violation of human dignity can be recognized even if the abstract term cannot be define);
Ibid 329, Para 2, art 80. Unlike the
Stefan Talmon (n 141) 27; In fact, the diplomat also never tried to leave the country since the Supreme Court had passed the restraining order.
Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v Belgium 
Ibid 29–30, para 71.
Tachiona v Untied States (2004) 386 F.3d 205; The provision makes an indirect reference to the
Also, there are other incidents in
Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning the Compulsory Settlement of Disputes (adopted 18 April 1961, entered into force 24 April 1964) 500
Eileen Denza (n 4) 374.
Sanderijn Duquet and Jan Wouters, Legal Duties of Diplomats Today: The Continuing Relevance of the Vienna Convention, Working Paper Series No. 146, (2015) Leuven Centre for Global Governance Studies, 6. For instance, Article 34 of
In matters of traffic regulations, the state practice shows that diplomats are required to abide by the local laws in the interest of safety of everyone.
Only provisions in which the local laws of the receiving state having a material bearing on the scope of privileges and immunities are referred here. In other words, instances in which the foreign officials are exempted from the local laws are not examined here.
This is more conspicuous in the case of Vienna Convention on Consular Relations. See Article 5, Paragraphs (f) to (m).
Duquet and Wouters, (n 198) 5. In the context of
Duquet and Wouters (n 198) 21.
Eileen Denza (n 4) 374–376.
Ibid. at 375.
Ibid. at 374.
See Dror Ben-Asher, Human Rights Meet Diplomatic Immunities: Problems and Possible Solutions, (Cambridge: Harvard Law School, 2000; Joan E. Donogue, Perpetual Immunity for Former Diplomats? A Response to the ‘Absinito Affair’: A Restrictive Theory of Diplomatic Immunity, 27 Columbia Journal of Transnational Law, 615 (1989); Mariam Nash Leich, Prosecution of Former Diplomats for Non-official Acts, 81, American Journal of International Law, 937 (1987).
Paul Beherens, Diplomatic Interference and the Law, (Hart Publishing, 2016) 19.
Mitchell S Ross (n 7) 202; S. E. Nahlik, Development of Diplomatic Law: Selected Problems, Collected Courses of the Hague Academy of International Law, Recueil Des Cours, (1990: iii, Tome 22 de la collection, Martinus Nijhoff) 246.
Diplomatic retorsions mean unfriendly measures not inconsistent with any international legal obligation. It is said that ‘retorsions live and breathe in the incompleteness of international law where no unambiguous rules of international law prohibit the remedy’. Hjortur B. Sverrisson, Counter-measures, International Legal System and Environmental Violations, (Cambria Press, New York, 2008) 72.