Prof. Dr. Uttam Karmacharya - - -
The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries. It specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by the host country. This forms the legal basis for diplomatic immunity. Its articles are considered a cornerstone of modern international relations. As of October 2018, it has been ratified by 192 states.
Throughout the history of sovereign states, diplomats have enjoyed a special status. Their function to negotiate agreements between states demands certain special privileges. An envoy from another nation is traditionally treated as a guest, their communications with their home nation treated as confidential, and their freedom from coercion and subjugation by the host nation treated as essential.
The first attempt to codify diplomatic immunity into diplomatic law occurred with the Congress of Vienna in 1815. This was followed much later by the Convention regarding Diplomatic Officers (Havana, 1928).
The present treaty on the treatment of diplomats was the outcome of a draft by the International Law Commission. The treaty was adopted on 18 April 1961, by the United Nations Conference on Diplomatic Intercourse and Immunities held in Vienna, Austria, and first implemented on 24 April 1964. The same Conference also adopted the Optional Protocol concerning Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of Disputes, the Final Act and four resolutions annexed to that Act.
Two years later, the United Nations adopted a closely related treaty, the Vienna Convention on Consular Relations.
Ambassador, highest rank of diplomatic representative sent by one national government to another.
At the Congress of Vienna in 1815, ambassadors were one of the four classes of diplomatic agents who were formally defined and recognized. Ambassadors were deemed to represent the person and dignity of the sovereign (or head of state) and were entitled to personal access to the sovereign to whom they were accredited. The Vienna Convention on Diplomatic Relations (1961) reduced to three the categories of diplomatic representatives, which are: (1) ambassadors and other heads of mission of equivalent rank who are accredited to the host heads of state; (2) envoys extraordinary, ministers plenipotentiary, and other representatives who are accredited to the host heads of state; and (3) chargés d’affaires, who are accredited to the foreign minister of the host country. The category of ministers-resident was omitted.
Ambassadors were originally exchanged only between the principal monarchies, with envoys or chargés d’affaires sufficing for the conduct of relations with less powerful states. Ambassadors were later also sent to republics regarded as being of equal rank. The United States appointed its first ambassadors in 1893. In 1914 there was a general exchange of ambassadors among the great powers—Austria-Hungary, France, Germany, Great Britain, Italy, Japan, Russia, and the United States—along with Spain and Turkey. Between 1919 and 1939 Belgium, China, Poland, and Portugal were raised to ambassadorial status, and since 1945, in accordance with the doctrine of the formal, legal equality of all states, most governments have sent representatives of ambassadorial rank to all countries to which they have extended diplomatic recognition.
Prior to the development of modern communications, ambassadors were frequently entrusted with extensive, even plenary, powers. They have since tended, however, to become spokesmen of their foreign offices, and rarely does an ambassador enjoy extensive discretion. An ambassador’s personality and prestige, on the other hand, may play an important part in making the views of his government understood, and his firsthand knowledge of the country to which he is accredited may enable him to influence his government’s policy decisively. See also extraterritoriality.
Summary of provisions
The treaty is an extensive document, containing 53 articles. The following is a basic overview of its key provisions.
· Article 9. The host nation at any time and for any reason can declare a particular member of the diplomatic staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their diplomatic immunity.
· Article 22. The premises of a diplomatic mission, such as an embassy, are inviolable and must not be entered by the host country except by permission of the head of the mission. Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property. Article 30 extends this provision to the private residence of the diplomats.
· Article 24 establishes that the archives and documents of a diplomatic mission are inviolable. The receiving country shall not seize or open such documents.
· Article 27. The host country must permit and protect free communication between the diplomats of the mission and their home country. A diplomatic bag must never be opened even on suspicion of abuse. A diplomatic courier must never be arrested or detained.
· Article 29. Diplomats must not be liable to any form of arrest or detention. They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32.
· Article 31.1c Actions not covered by diplomatic immunity: professional activity outside diplomat’s official functions.
· Article 34 speaks about tax exemption of diplomatic agents while Article 36 establishes that diplomatic agents are exempted from custom duties.
· Article 37. The family members of diplomats that are living in the host country enjoy most of the same protections as the diplomats themselves.