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CHAPTER I
A. Context Of Study
In the international society, each state will need to conduct a relationship or
interaction with each other. Basically, the main objective and the tendency of a
state to conduct international relations is to protect and promote the interests of
the state. In addition, the intensity of a state held a relationship with another state
will directly impact to the existence of a state in the international community.
Relation among the independent state is the basic aspect of governance, there is
always growing demand from countries to establish a framework that defines the
manner in which these states relate and co-work in their day to day activities.1
There are several methods that can be done by state in conducting the
international relation, the most popular one is diplomacy.2 So far, diplomacy is
the primary method to conduct international relations which are the most
frequently performed by a state. Ian Brownlie (1979) stated that diplomacy
comprises any means including maintain mutual relations, communicate with
each other, and carry out political or legal transaction though their authorized
agents.3 In addition, diplomacy carried out not only to achieve the personal
1 Custom Vienna Convention on Diplomatic Relations 1961 essay paper writing service, http://www.essaysprofessors.com/samples/Analysis/Vienna-convention-on-Diplomatic-relations-1961.html , October 4, 2012, 22.22 pm
2 Michael B. McDonough (1997) defined Diplomacy as the conduct of relations between Nation-States through their accredited officials for the purpose of advancing the interests of the appointing State. See Michael B. McDonough, 1997, “Privileged Outlaws: Diplomats, Crime and Immunity” , 20 Suffolk Transnat'l L. Rev.475. p.475
3 Ian Brownlie, Priciples of Public International Law, Oxford University Press, 1979, 3rd edition , p.345
1
objective of a state, but diplomacy also serves as a way to maintain balance and
peace of the international order.4
As the implementation of diplomatic relations among states in order to
minimize deviations, it is necessary to set up the provisions or the legal principles
that govern diplomatic relations among the countries on the basis of mutual
agreement. 5 Even far before the modern states exist, diplomatic relations
practices have been first applied in the time of ancient India. During such ancient
era, principles and regulations that govern the relationship between the kings or
kingdoms have been familiar with the term "ambassador".6 Likewise, during the
development of diplomatic law in Europe, in 1815 the Vienna Convention
changed the Protocol "Aix La-Chapelle" which will be a new milestone in
modern diplomatic developments. Furthermore, on the initiative of the United
Nations, the conference on diplomatic relations in Vienna in 1961 was held to
discuss the design of a convention that governs diplomatic relations and also
covers diplomatic immunity and privileges.7 Eighty-one states attended the
Vienna Conference and they reached an agreement that governed almost all
aspects of diplomatic activity. The basic purpose of Vienna Convention which
4 Devi Apriyanti, Definisi, Tujuan, Metode dan Instrumen Diplomasi, http://deviapriyanti158.blogspot.com/2012/06/definisi-tujuan-metode-dan-instrumen.html , October 4, 2012, 21.20 pm
5 Setyo Widagdo and Hanif Nur Widhiyanti, Hukum Diplomatik Dan Konsuler, 1st
Edition, Bayumedia Publishing, Malang, 2008, p.66 Syahmin AK, Hukum DIplomatik Suatu Pengantar, 2nd Edition, Armico, Bandung, 1988,
p.167 Setyo Widagdo and Hanif Nur Widhiyanti, op. cit., p. 12
2
was resulted at that time is to promote the development of friendly relations
among nations, despite differing constitutional and social systems.8
Fifty years after the enactment, Vienna Convention was felt less able to
accommodate demand that governs diplomatic practice which was increasingly
complex year by year. Some opinions and critics drawn to the existence of Vienna
Convention which is no longer relevant to the current conditions in the granting
of privileges and immunities are considered as action that might threaten the
rights and interests of the receiving state. Privileges and immunities of the
diplomats as regulated in Vienna Convention got concerns from international
community since it deals with the human right violation and about the abuse of
immunities issue.9
In February 1973, there was case of Iraq Embassy in Islamabad. The incident
began when a container that was addressed to the Iraqi Embassy in Islamabad
accidentally was damaged. As the result Pakistani customs officials revealed that
59 crates which was filled with weapons, explosives materials and ammunition
that will be received by the Belouchistan Rebels. Then, Pakistani government
informed the case to the Ambassador of Iraq. It was proved that the weapons were
8 Amy Zeidman, “ Abuse of The Diplomatic Bag: A Proposed Solution”, 11 Cardozo L. Rev. 427. p.427
9 Jawahir Thontowi, 2011, ”Urgensi Amandemen Konvensi Wina 1961 Tentang Hubungan Diplomatik dan Alternatif Penyempurnaan Lainnya”, presented in Panel Discussion about Vienna Convention in 1961 and 1963 Granting Diplomatic Privileges Right and Immunities, held in cooperation with the Indonesian foreign ministry with the Faculty of Law, Islamic University of Indonesia, Tuesday, October 4, 2011, Faculty of Law Islamic University of Indonesia, Jl. Taman Siswa 158. Yogyakarta. p. 1
3
imported by diplomatic immunity and privileges in to Pakistan which was then
stored at the Embassy of Iraq. Therefore, Government of Pakistan asked for
permission to examine it. Although Iraq's Ambassador rejected it, Pakistani police
had been given orders to keep checking those crates with the presence of Iraqi
ambassadors and they found the weapons in storage. As the result, Government of
Pakistan had protested against the Government of Iraq and declared persona non
grata to the Iraqi ambassador.10
In 2001, a Russian diplomat to Canada caused an automobile accident which
killed one pedestrian and left another severely injured. The diplomat was drunk at
the time and had been stopped for drunk driving twice in the past by Canadian
police who were unable to prosecute him. Canada requested a waiver of his
immunity but was turned down. Although Russia did not waive his immunity
under Article 32 of Vienna Convention 1961, they did agree to process him
through their own system pursuant to the provision found in Article 31.
Eventually, he was sentenced to four years in a Russian prison for involuntary
manslaughter. 11
Then there was one case that harmed to Indonesian citizens who worked in
Germany as a housekeeper for a diplomat of Saudi Arabia. This case occurred in
10 Nizzar Fikkri, Tinjauan Yuridis terhadap Kekebalan Gedung Diplomatik (Studi Terhadap Kasus Kedutaan Besar Irak di Islamabad Februari 1973 , http://nizarfikkri.blogspot.com/2011/12/tinjauan-yuridis-terhadap-kekebalan.html, October 19, 2012
11 William G. Morris, “Constitutional Solutions to The Problem of Diplomatic Crime and Immunity”, 36 Hofstra L.Rev.601. p 604-605
4
2011 when an Indonesian maid filed a claim before the labor court in Berlin
because she was treated like a slave and she did not get paid besides she got
harassment and intimidation. This issue should be brought to trial because it dealt
a human rights violation that has been committed by diplomat of Saudi Arabia.
However, Berlin Regional Labor Court judges rejected the claim and decided to
charge the court costs to the housekeeper as the plaintiff. Regional Labor Court
Berlin said Dewi’s claim was legitimate, but nothing could do over the case. The
court could not deal with a criminal case against members of the diplomatic
corps. For hundreds of years, diplomats have enjoyed immunity, and such
immunity "cannot be revoked" by the judge.12 The story of one of the Indonesian
workers who was not properly treated and their rights have been violated is just
one of many cases in which on many occasions there are many diplomats who
abuse their diplomatic immunity to escape from the law.
The privileges and immunities provision has been clearly stipulated in 1961
Vienna convention based on several principles, namely Exterritorialy Theory,
Representative Character Theory, Theory and Functional Necessity. However, the
privilege which was obtained by a Diplomat, especially regarding the immunity is
felt perceived by the individual, rather than by the sending state though.13
Considering the issue on the privileges and immunities that can be abused by
12 Penyiksa TKW Lolos karena Imunitas Diplomatik, http://internasional.kompas.com/read/2011/11/14/1249191/Penyiksa.TKW.Lolos.karena.Imunitas.Diplomatik , October 2, 2012 , 13.00
13 Martin Dixon, International Law, Fourth Edition, Blackstone Press Limited, United Kingdom, 2000, p.189
5
diplomats and mistakes that led to the moral outrage of the society, there should
be limits on the privileges and immunities which eventually brought some experts
spoke for the amendment over the 1961 Vienna Convention on diplomatic
relations.14 Furthermore, from the point of view of the receiving state, the
privileges and immunities that belong to diplomats can threaten the rights and
interests of the receiving state. It should be noted that the nature of a rule is
responsive to change. Therefore in this case, there is a huge possibility that the
Vienna convention needs to be amended which will be followed up with an
amendment on the some stipulation in that instrument.
On the other hand, there is a contradictive opinion on the proposed
amendment over the Vienna convention 1961. It needs to be considered if the
amendment is necessary because there is no guarantee that practically the
amendment is effective and efficient. In most cases the removal of the privileges
and immunities of the diplomatic missions of the receiving state may offend the
sending countries. In diplomatic practice, there is implementation of reciprocity
principle. Therefore, sometimes diplomacy is more determined by the fear if
receiving countries take revenge against their state representatives in the receiving
state.15 In this case, the challenges towards the proposed amendment are not only
facing the difficulty over the procedures and mechanisms of the amended article,
14 Veronica L. Maginnis,” Limiting Diplomatic Immunity: Lessons Learned from The 1946 Convention on The Privileges and Immunities of The United Nations” , 28 Brook. J. Int'l L.989
15 Jawahir Thontowi, Op.cit. p. 2
6
but also must deal with state policies that have the sovereign right to determine
the reciprocal response. It can ultimately affect effectiveness of implementation of
amended Vienna convention.
Idea of amendment 1961 of Vienna convention on diplomatic relations was
always interesting to talk about. It is classified as old diplomatic legal instruments
that deal with diplomatic practices which grows with complexity as performed by
many countries. The urgency of Vienna convention amendment is important to be
researched because the Vienna convention has now been deemed irrelevant to
adjust overall practice of diplomacy among countries in the world. In many cases
that arise from the diplomatic practice, the receiving state has always been a party
that is always injured either directly by a state's sovereignty or against its own
citizens. The study about this issue is needed as the response to demands for the
amendment of Vienna convention 1961 regarding the protection of the rights of
the receiving countries. This research explored further about the urgency of
amendment of 1961 Vienna Convention on Diplomatic Relations of 1961.
A. Statement of Problem
How urgent is Amendment of Vienna Convention 1961 on Diplomatic
Relation that related to the protection of Receiving State?
B. Objectives of Study
7
The aim of this study is to find out the urgency of amendment of Vienna
Convention 1961 on Diplomatic Relation 1961.
C. Definition of Technical Terms
The terms which were used in this thesis were clearly explained to make the
analysis understandable.
Definition of urgency when viewed from the origin in the Latin word
"urgere" is a means to encourage, and when seen from the English language
called "urgent" that has meaning and the adjectives in the Indonesian language
"urgency" is categorized as a noun. Urgency term refers to something that drives
us, forcing us to be solved or resolved, thus presumes there is a problem and
should be settle immediately.16
Amendment can be define as the changes in the legal documents created by
adding, changing, or removing certain parts or terms and then signed by all parties
concerned while maintaining the legal validity of the original document.17 The
mechanism of amendment of treaty is governed at the Vienna Convention 1969
on Law of Treaties. Vienna Convention 1969 provides flexibility to the all
contracting parties of treaty to make a revise or amendment if it’s deemed
necessary as long as it is notified by the all contracting parties.
16 Reska Tania Apriadi, Definisi Urgensi, http://blog.bestlagu.com/pengertian-urgensi, accessed November 13 2012, 21:08
17 Business Dictionary, http://www.businessdictionary.com/definition/amendment.html, accessed November 13, 2012
8
Protection of receiving countries will be focused on the protection of the
rights and interests of receiving countries. It is related to the implementation of
the rules and provisions regarding the diplomatic law under Vienna convention
1961 on diplomatic relations. Besides regulating the diplomatic immunity which
is acquired by a diplomat, Vienna Convention 1961 regulated also the privileges
rights and inviolability principle that must be respected and fulfilled by the
receiving countries. Some basic principles are applied for diplomatic immunity
and inviolability has become the key issues that are as disturbance against
perceived the interests of the receiving state.
Diplomatic Immunities can be defined as the immunities from local
jurisdiction which is enjoyed by diplomat agents in doing their work and
maintaining their dignity as persons representing one national state. The sending
government and another normally referred to as the receiving government.18
Inviolability is the immunity from the intervention of receiving state and
immunity against all harmful interference. It implies definition that the diplomats
have the right of protection from the intervention of receiving state.19 The
inviolability consists of some aspect, such as:
18 N.M.Abdulraheem, “Privileges and Immunities Diplomatic in Nigeria: Limitations and Waivers”, http://www.unilorin.edu.ng/publications/abdulraheemnm/PRIVILEGES_AND_IMMUNITIES_OF_DIPLOMATIC_IN%20NIGERIA_LIMITATIONS_AND_WAIVERS.pdf , October 9, 2012
19 Bambang Prayitno, Perbedaan Kekebalan, Keistimewaan dan Kemudahan staf diplomatic, Staf Administrasi dan Staf Teknik Perwakilan Diplomatik, Staf Pelayanan, dan Staf Pelayan Pribadi, http://prayitnobambang.blogspot.com/2011/11/perbedaan-kekebalan-keistimewaan-dan.html , October 9, 2012
9
a. Inviolability of the premises and the private residence of Diplomatic
Mission
b. Inviolability of the Diplomatic Bag
c. Inviolability of the mission archives and communication
d. Inviolability not be subpoenaed as witnesses
e. Inviolability not be arrested or detained 20
Based on the principles which has been established in Vienna convention
1961 on diplomatic relations, it will directly disrupt the interests of the receiving
state that obviously has sovereignty and jurisdiction over the territory. Therefore,
the debate on the ability of Vienna convention on diplomatic relations 1961 to
accommodate the protection of receiving countries has become a global issue that
draws concerns from many experts.
D. Literature Review
Vienna Convention 1961 is a treaty which gives a framework that governs
diplomatic relations among different independent states in the world. The Vienna
Convention provides a complete framework for the establishment, maintenance
and termination of diplomatic relations on a basis of consent between independent
sovereign States. It consist of some important provisions, they are:
a. It specifies the functions of diplomatic missions, the formal rules
regulating appointments, declarations of persona non grata of a diplomat who has
in some way given offence, and precedence among heads of mission.
20 Article 24, 27, 29, and 31 Vienna Convention 1961 on Diplomatic Relation
10
b. It sets out the special rules about the privileges and immunities which
enable diplomatic missions to act without fear of coercion or harassment through
enforcement of local laws and to communicate securely with their sending
Governments.
c. It makes provision for withdrawal of a mission which may take place
on grounds of economy or physical security
d. It also provides provision for breach of diplomatic relations which
may occur in response to abuse of immunity or severe deterioration in relations
between sending and receiving States.
e. There are some provisions also govern about these cases where
permanent missions have not been established.
f. It also contain a framework is provided for the interests of each
sending State to be protected in the receiving State by a third State.21
Among the sets of regulation on Diplomatic practices in Vienna Conventions
1961 on Diplomatic relations the issue about entitlement to of diplomatic
privileges and immunities of diplomats is under the spotlighted. Granting
immunity, privileges and rights for diplomats have long been practiced since
ancient roman times, and it was developed into a customary law that eventually
was adopted into the rules and regulations as written in the 1961 Vienna
Convention on diplomatic relations.
21 Audiovisual Library of International Law, http://untreaty.un.org/cod/avl/ha/vcdr/vcdr.html, October 19, 2012
11
In general, diplomatic immunity and privileges can be categorized into two
aspects, namely Immunity and inviolability.22 Inviolability is immune from the
instruments of power or the apparatus of the receiving state and immunity to all
kinds of harmful interference that implies the right to be protected from the
instruments of power receiving countries.23 Meanwhile, Immunity can be
interpreted as immunity to the jurisdiction of the receiving state, either criminal or
civil law.24
The concept of diplomatic immunity can be traced back from ancient times.
During ancient era, the ambassadors who were sent by one state to another state
had been considered as bearer of sacred mission.25 Because of the sacred nature, it
was believed that such sanctity was owned by an ambassador. As the result,
diplomatic privileges and immunities later became common practices and marked
as the beginning of the rules and regulations regarding diplomatic privileges and
immunities in the world.
In the 16th century when the exchange of ambassadors among the
independent European countries had become common practices, diplomatic
22 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, RajaGrafindo Persada, Jakarta, 2008, p.118-119
23 Setyo Widagdo, Masalah-masalah Hukum Internasional Publik, 1st Edition, Bayumedia Publishing, Malang, 2008, p.98
24 Ibid.25 Sumaryo Suryokusumo, 2005, Hukum Diplomatik Teori dan Kasus, 1st edition, Alumni,
Bandung, p.52
12
immunities and privileges have started to be accepted practices among the state,
also it has been approved by international legal experts.26
UN expert committee stated that the basis for diplomatic immunity and
privileges are as follows:
"The necessity of permitting free and unhampered exercise of the diplomatic function and of maintaining the dignity of the diplomatic representatives and the state roommates he represent, and the respect properly due ... traditions." 27
Therefore, granting those rights based on the principle of reciprocity and the
principle of inter-state and is required, in order to:
a. Developing friendly relations among nations without distinguishing the
state system and social systems of different cultures.
b. Ensuring the implementation of the efficiency of task of diplomatic
officials, especially for the task of the state they represent.28
Diplomatic immunity does not only ensure the efficient function of
diplomatic missions in foreign states, but also foster to goodwill and enhances
friendly relations among nations.29
Furthermore, there are some theories of justification for granting the
Diplomatic Immunity and Privileges, they are:
a. Exterritorial Theory
26 Setyo Widagdo and Hanif Nur Widhiyanti, 2008, Op.cit, p.69 seen also Sumaryo Suryokusumo, 2005, Op.cit, p.50
27 Sumaryo Suryokusumo, Diplomatic Law Course, October 13, 1984, Magister Degree Law Faculty Padjadjaran University , p.26 in Syahmin AK, Hukum Diplomatik Suatu Pengantar, 2nd Edition, Armico, Bandung, 1988, p.72
28 Ibid.29 Eric C. Surette, J.D, “Privileges, Immunities, and Disabilities” , September 2012, 3 B
C.J.S. Ambassadors & Consuls. 12, p.12
13
This theory believes that although the diplomats practically are in the
territory of receiving state, principally they should be presumed to exist outside
the territory of the receiving state and treated as if they are still living in the
sending state. 30
Sir Gerald Fitzmauricie has clearly explained that:
“ Exterritorialy which implies that the premises of a mission in theory are outside the territory of the receiving state and represent a sort of extension of the territory of the sending state. “31
It means according to Exterritorialy Principle that the premises of the mission
and the private residence of diplomat are considered to be outside the territory of
the receiving because they are viewed as extension of the sending state territory.
Therefore, the diplomats are not subject to the laws of the receiving state, it also
implies that they cannot be controlled by receiving state law and they are not
subject to receiving state legal jurisdiction.32
b. Representative Character Theory
In this theory, diplomats are considered as a symbol of the sending state as
well as the representative of the sending state in the receiving state. Therefore, all
diplomatic actions which are taken by Diplomat should be regarded as an action
30 Widodo, Hukum Diplomatik dan Konsuler pada Era Globalisasi, Laksbang Justitia, Surabaya, 2009, p.78
31 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit. p.7432 Ibid.
14
of the Head of sending state or at least regarded as reflecting the will of sending
state.
c. Functional Necessity Theory
This theory is based on granting rights to diplomatic representatives that its
function is so that it can function correctly and perfect. The immunities and
privileges they earn is to provide greater opportunities in order to carry out
diplomats duties without any interference and pressure.33 This theory is the most
widely adopted theory in the case of a justification for the granting of privileges
and immunity to diplomats. Therefore, they can perform their duties effectively
and efficiently. International Law Commission has also adopted the theory of
functional necessity in solving problems when in practice there is no clear
provision besides considering the nature of chief of the mission and the
representatives.34
Furthermore, the granting of diplomatic privileges and immunities as
provided in the 1961 Vienna convention also grows controversial sentiment.
Besides being the world's concern, the global issue of human rights is also
associated with granting full immunity which is deemed not in accordance with
human right principles. Some basic rules in Vienna convention are deemed no
longer able to accommodate the interests of the receiving state. It is important to
33 Syahmin AK, Op.cit, p.7134 Yearbook of International Law Commission ( ILC ), 1958, p.94-95 in Sumaryo
Suryokusumo, Op.cit p.60
15
analyze the relation between immunity and inviolability of diplomat that might
disrupt the interests of the receiving state which obviously has sovereignty and
jurisdiction over the territory. The settings in Vienna convention seems create
loophole for the possibility of abusing such privileges which might be committed
by diplomats as happened in most cases. On several occasions, violation and
abuse of diplomatic immunity and privileges bringing harm to the receiving state.
Basically, the immunity which is granted to diplomatic agents is needed for
the performance of their duty that should be free from the jurisdiction and control
of the receiving state. It was stated in the preamble to the Vienna Convention on
diplomatic relation 1961.
"The purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the function of diplomatic mission in Representing states"35
In fact, the privileges and immunities of diplomatic are often used as a shield
by a diplomat in order to escape from the law of the receiving state. Although, the
main purpose of the immunity and privileges is to carry out the designated
functions on behalf of the state, it is generally known that diplomatic immunity
and inviolability are personal in the sense that they are enjoyed by individuals,
rather than the state itself.36 Meanwhile, receiving state is under certain
obligations to protect the diplomat and his properties in order to carry out his
35 Preamble of Vienna Convention 1961 on Diplomatic relation36 Martin Dixon, Op.cit , p.189
16
functions effectively. By enjoying such privileges and immunity right, the
diplomat the receiving state have no control at all toward the diplomats even if
they have committed certain abuse or crimes.
Diplomatic law recognized an exception; the receiving state has rights to
request the waiver of immunity. It is an established practice that the immunity
from the jurisdiction of diplomatic agents may be waived by the sending state. In
practice, when the immunity of diplomatic agents have been waived by the
sending state, their immunity will immediately ceased and become the ordinary
person without any forms of immunities. Because of the diplomatic immunity
deal with the immunity of his government, it is become the authority of sending
state to decide whether the immunity of diplomatic agents need to be waived or
not in particular case. The diplomat cannot waive his immunity without the
permission of the government of sending state, and cannot object if his
government decides to waive his immunity. Waiver must always be expressed.
However, some scholar still think that the waiver of immunity is not enough
to accommodate the interest of the receiving state because it deals with the policy
of sending state whether the government of sending state will approve the waiver
request from receiving state or not. It is generally recognized that the only thing
that can be done by the receiving without the consent of the sending state
diplomat is persona non grata, it will make him no longer recognized as a
17
member of the mission.37 When the receiving state decides to declare persona non
grata, it will have a direct impact on of diplomatic relations between the two
countries because the Diplomatic law recognizes the principle of reciprocity.
The regulation of some of the basic principles of law such as the provision of
diplomatic immunity and privileges is deemed no longer relevant to the emerging
discourse for amending the Vienna convention 1961. According to Prof. Jawahir
Thontowi, a regulation either national or international law has the nature
responsive to change. Therefore, in this case the Vienna convention is open to be
revised or improved.38
However, the amendment is not easy to do as it requires deep consideration
and approval of many parties. Basically, the mechanism of an amendment to the
agreement depend on the agreement of the parties. Regarding changes or
amendments to this multilateral agreement, it does not require an initiative of all
States parties to the agreement. Nevertheless, any proposed changes either in the
form of amendments or revisions shall be communicated to all States and all
parties are entitled to participate in making decisions about the continuation of the
proposed amendments.39 This is actually the problem, because there will be a lot
of parties with their respective interests who might argue against such discourse.
37 Kejahatan dalam Masyarakat dan Upaya Penanggulannya, http://siskapuspitaningtyas.wordpress.com/ October 9, 2012 , 9:59 pm
38 Jawahir Thontowi, Op.cit, p.139 Hukum Perjanjian Internasional : Amandemen dan Modifikasi Terhadap Perjanjian,
http://kuliahade.wordpress.com/2010/06/24/hukum-perjanjian-internasional-amandemen-dan-modifikasi-terhadap-perjanjian/
18
E. Research Method
1. Object of Research
Urgency of amendment Vienna Convention 1961 on diplomatic relation
related to the protection of receiving state
2. Legal Materials
a. Primary Legal Material: Vienna Convention 1961 on Diplomatic
Relation
b. Secondary Legal Materials: Books and journal on Diplomatic Law
concerning Urgency of amendment of Vienna Convention and Receiving State
Protection.
3. Method of Gathering Legal Materials
The method for obtaining the materials was by using library studies and
documentation. The collected data were from book that related to the urgency of
Vienna amendment related to the protection of the receiving state.
4. Approach Method
This thesis used the statute approach by analyzing the problems from the
point of view of legal regulation, decrees and rules.
5. Method of Legal Materials Analysis
The method for analyzing materials used the descriptive qualitative method.
The obtained data way descriptively presented and analyzed in accordance to the
regulation, decrees and rules that related to the urgency of amendment of Vienna
Convention 1961 and the protection of receiving state.
19
CHAPTER II
A. Vienna Convention 1961 on Diplomatic Relation
1. Historical Background of Vienna Convention 1961
The rapid development of science and technology has triggered the
interaction among the states of the world to be more intense. It has been realized
that the interaction with other nations is a demand. Relations between nations are
not only intended to protect the interests of the state and its citizens, but also to
strengthen the security of a nation.40 Basically, there are several ways that can be
used by a state to hold international relations, but the oldest and most commonly
used is diplomacy.41 Diplomatic relations and diplomatic mission is established
40 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.1341 J. Frankel (1980) has divided the means of organizing international relations into 4
types, including: diplomacy, propaganda, economic and military cooperation. See in I Wayan Suyadnya, Hubungan Internasional, Pengertian, Pola, Arti, http://wayansuyadnya.wordpress.com/1-1-hubungan-internasional-pengertian-pola-arti-penting-dan-sarananya/ , accessed November 27, 2012, 8:05 pm
20
depends on the mutual consent of the state concerned.42 At present, almost all the
countries represented in the foreign countries by diplomatic envoys with staff of
the mission. In line with the developments that have occurred for hundreds of
years, the diplomatic representative agencies play an important role in conducting
inter-state relations.43 Politically, practice of diplomacy is to support the
implementation of a state policy and foreign relations that devoted to the national
interest, especially for the sake of development in all aspects.44 Furthermore,
diplomacy can enhance the role and image of the state itself in international
forums and inter-state relations, including capturing the trust of the international
community.
History has recorded and proved that long before the nations of the world
have known and practiced diplomatic relations. In the era of Ancient India, it has
been recognized the provisions and rules governing the relationship among the
kingdoms. Since the implementation of the relationship among the kingdoms, it
was started to be recognized what it called "Ambassadors".45 As well as the
42 Article 2 of Vienna Convention 1961: “ The establishment of diplomatic relations between states and of permanent diplomatic missions, takes place by mutual consent
43 J.G. Starke, Pengantar Hukum Internasional, Tenth Edition, Sinar Grafika, Jakarta, 2000, p. 563
44 Sir Ernest Satow (1979) defined the diplomacy as the application of intelligence and tact to the conduct of official relations between the governments of independent states, extending sometimes also to their relations with vassal states; or, more briefly still the conduct of business between states by peaceful means. See Sir Ernest Satow, 1979, Satow’s Guide to Diplomatic Practice, Fifth edition, Longman Group, New York, p.3
45 Ali Sastroamidjojo, Pengantar Hukum Internasional, Bhratara, Jakarta, 1971, p.165 in Syahkim AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.13. Seen also, B.Sen, A Diplomatic’s handbook of International Law and Practice, 2nd Edition, Martinus Nijhoff Publishers, The Haque/ Boston/London, 1979. P.14
21
exchange of ambassadors to foreign countries, it has been implemented in
Indonesia and other Asian countries including Arabs far before western countries
recognize it.46 In European continental, the sending and placement of ambassadors
were governed by customary law started from the 16th century. However, the
emergence of permanent diplomatic missions as distinguished from temporary
diplomatic missions just began since the seventeenth century.47 While the
exchange of permanent diplomatic mission was becoming general practice, their
role in conduct also was steadily increasing.48 The rights, duties, and privileges
owned by the diplomatic mission continue to develop according to the custom in
the eighteenth century. Finally, in the nineteenth century an agreement on the
issue of diplomatic right and privileges was reached. 49
It has been recognized that to ensure the implementation of diplomatic
relations required a regulation containing the legal principles and provisions
govern about diplomacy that can be used as guidelines for the diplomatic relations
in order to perform optimally and efficiently. The regulation about the diplomatic
relations started to be discussed at the Vienna convention in 1815 which was
finally agreed on a diplomatic rank classification. Then, the rule was amended by
46 Ibid47 J.G. Starke, Op.cit.48 Ludwik Dembinski, Modern Law of Diplomacy: External Mission of States and
International Organizations, Martinus Nijhoff Publishers, Dordrecht/Boston/Laschaster/Unitair, 1988, p.4
49 Ibid
22
a protocol "Aix-La-Chapelle" which in fact did not add rules that already exist.50
Essentially, Vienna Congress is a milestone of modern diplomacy because it has
successfully set up and made the principles in a systematic, including general
practice in diplomacy.51
In 1927, the League of Nations made efforts to held codification of the
principles of diplomacy by forming a committee of experts tasked with discussing
the codification of international law, especially the advancement diplomatic law.52
Apparently, the board of the league of nations did not approved the
recommendations of expert committee and ultimately decided not to include these
issues in the agenda of the 1930 Hague conference on the codification of
international law.53 On the other hand, countries American Conference held in
1928 it had discussed issues relating to diplomatic relations as an important issue.
The Conference then adopted two conventions, they are: Convention on
Diplomatic officials and the Convention on Consular. The Convention then
50 In Vienna Convention 1815, the diplomatic rank classification consist of : Ambassadors and Legates, Minister Plenipotentiary and Envoys Extraordinary and Charge d’affaires . As it was amended by protocol Aix-la-Chapelle there was an additional rank as the Minister Resident was filling the third rank . The classification of diplomatic rank after the amendment by the protocol of Aix-la-Chapelle became Ambassadors and Legates, Minister Plenipotentiary and Envoys Extraordinary, Minister Resident, and Charge d'affairs. See in Sumaryo Suryokusumo, Op.cit, p.8-9
51 Ali Sastroamidjojo, Op.cit, p.166 in Setyo Widagdo and Hanif Nur Wihiyanti, Op.cit, p.9
52 Codification can be interpreted as more precise and systematic formulation of the rules of international law in various aspect that were already widely into practice, examples, and state doctrine. See in Article 15 of International Law Commission Statute
53 At that time, the expert committee formed league of nations report about the urgency of the problems related to diplomatic law covering various aspects of diplomatic relationships among countries governed internationally. See in Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit. p. 10
23
considered to have successfully conducted a preliminary effort which were very
important of diplomatic law codification.54
After the establishment of the United Nations in 1945, the development of
the codification of international law including diplomatic law is begun intensively
discussed by the international law commission. In 1947, International Law
Commission set up by the United Nations General Assembly, on the mandate of
Article 13 of the UN Charter states that:
1.The General Assembly will conduct an investigation and submit proposals with a view to:
A. promotes international cooperation in the fields of politics, and encourages the improvement and progressive development of international law and its codification;
B. promotes international cooperation in the economic, social, cultural, educational, and health fields, and help to improve understanding of human rights and fundamental freedoms for all human beings without any discrimination of nationality, race, gender, nation, or religion.”55
Commission on International law stipulates fourteen topic areas which also
includes diplomatic relations, especially regarding diplomatic immunity and
privileges.56 Drafts which was produced by the International Law Commission
was the guides between fact that exist in international law (de lege lata-) and the
suggestions for development (de-lege-ferenda).57 If any draft examined by an
international conference, usually draft will undergo changes which are
54 Ibid. p.10-1155 Article 13 of United Nations Charter56 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.16 57 Sumaryo Suryokusumo, Op.cit, p.13
24
substantial.58 However, before the draft shall be submitted to all member
governments to obtain feedback, both during the discussion in the commission of
international law as well before being submitted to the UN General Assembly.59
Practically, both codification and development progress essentially interrelated
and cannot be separated each other.60
Finally, in 1961 at the initiative of the UN General Assembly held an
international conference entitled "The United Nations Conference on Diplomatic
Intercourse and Immunities". 61 The convention held from 2 March to 14 April
1961 which was conducted in the city of Vienna. Vienna conference produced
some Instruments, including:
a. Vienna Convention on Diplomatic Relations
b. Optional Protocol Concerning Acquisition of Nationality
c. Optional Protocol Concerning the Compulsory Settlement of Disputes
58 Ibid.59 Ibid.60 N.A. Maryan, International Law, Law of Peace, Mac Donald and Evans Ltd, London,
1973, p.26-27 in Sumaryo Suryokusumo, Op.cit, p.1361 1961 Vienna Convention accepted by 72 countries, no one refused and only one state
abstained. On 18 April 1961 representatives of 75 countries signed the convention consisting of the preamble, 53 articles, and 2 protocols. On 24 April 1964, declared the Vienna Convention into force, and now almost all countries in the world have ratified the convention. See in Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.16
25
Among the three instruments, the 1961 Vienna Convention on Diplomatic
Relations is the most important and primary basis practice of diplomatic relations
among countries.62
2. Stipulation of Diplomatic Law under Vienna Convention 1961
Vienna Convention is an instrument which covers almost all important
aspects of permanent diplomatic relations among countries. Vienna Convention
on Diplomatic Relations came into force on 24 April 1964 and at 1 October there
were 179 contracting parties. The Convention was the outcome of a United
Nations Conference on Diplomatic Intercourse and Immunities 1961 and was
based on a series of Draft Articles prepared by the International Law
Commission. 63
It consists of 53 articles and also 2 optional protocols regarding acquisition
of citizenship and the imperative to resolve disputes, each consisting of 8 and 10
articles. Vienna Convention provides a complete framework for the
establishment, maintenance, and also the termination of diplomatic relations.
Briefly, the articles in the Vienna convention can be mapped into several sections
including:
62 Ibid. 63 Martin Dixon, Op.cit, p.190
26
a. Regulation on the establishment of diplomatic missions, the rights and the
appointment and submission of credentials heads of diplomatic missions (Article
1-19)
b. Regulation of immunity and privilege for diplomatic missions, including a
variety of tax exemption (Article 20-28)
c. The setting of the immunities and privileges granted to diplomats and other
staff (Article 29-36)
d. Regulation of immunity and privileges for family members of diplomatic
agents and service staff who work on them (Article 37-47)
e. Regulation of signing, accession, ratification and entry into force of the
Convention (Article 48-53).64
Vienna Convention also divided the diplomatic staff of a foreign
mission roughly into three categorize, namely:
a. Diplomatic Agent: it means the head of mission or a member of the
diplomatic staff of the mission. For instance, ambassador, attaches, etc
b. Administrative and technical staff
64 Sumaryo Suryokusumo, Op.cit, p.15
27
c. Service Personnel: it can be consist of clerks, messengers, security
guards, chauffeurs, cooks. Actually, this group of personnel are usually local
people which is employed by the embassy.65
B. Diplomatic Immunity and Privileges
1. Definition of Diplomatic Immunity and Privileges
Generally, diplomatic immunity and privileges can be categorized into two
aspects, namely Immunity and inviolability.66 Both, diplomatic immunities and
privileges are the rights obtained by a diplomat while serving in a foreign state to
represent his state. "Diplomatic immunity" in its contemporary aspect may be
broadly defined as the freedom from local jurisdiction accorded under principles
of international law by the receiving state to the duly accredited diplomatic
representatives of other states. 67 C. Wilfred Jenks grouped diplomatic immunity
into the following four categories:
1. Immunity from every form of legal proceedings
2. Inviolability of premises and archives
3. Currency Privileges
65 Muhammad Munir, “A Critical Appraisal of the Immunity of Diplomats in International Law and its Status in Sharia”, Journal of Law and Society Faculty of Law University of Peshawar, 2000, p.30 seen also Article 1 of Vienna Convention 1961 on Diplomatic Relations
66 Syahmin AK, Hukum Diplomatik Dalam Kerangka Studi Analisis, Op.cit, 118-11967 Eric C. Surette, 2005, Applicability of Diplomatic Immunity Under Vienna Convention
and Diplomatic Relations Act, J.D, 1 A.L.R. Fed. 2d351, p.351
28
4. Freedom of communication.68
Sumaryo Suryokusumo (2005) classified diplomatic immunities and
privileges by its nature into three categories:
a. Immunity includes the inviolability of diplomats including his residence
and as specified in Article 29.30, and 41 Vienna Convention 1961, as well as their
immunity from the jurisdiction of administrative, civil, and criminal.
b. Privilege or indulgence granted to diplomats that release them from the
obligation to pay taxes, customs, social security, and individuals such as article
33,34,35,36 of Vienna Convention 1961.
c. Immunities and privileges granted to diplomatic missions is not just about
not bothered buildings of foreign missions in the state, including archives and
freedom of communication, but also freedom from any taxation of the receiving
state as stipulated in article 22, 23,24,26 and 27 of Vienna Convention 1961.69
1. Definition Immunity and Inviolability according scholars:
A. Ian Brownlie
Ian Brownlie (1990:358) explains that the immunity is immunity from the
jurisdiction of the laws of the receiving state so that a diplomatic official is
68 Compilation as drawn from: C. Wilfred Jenks, International Immunities at xxxxvi. (Oceana
Publications, 1961).69 Sumaryo Suryokusumo, Op.cit, p. 69-70
29
immune to all prosecution in the receiving state, this means that a diplomatic
officials will be beyond the jurisdiction of the receiving state.70
B. Liselotte B. Watson
Diplomatic immunity is the term commonly used to describe the rights and
privileges of a diplomatic officer that exempt him from the operation of certain
laws of the receiving state. When they hear the term, most people think of only
one aspect, namely, immunity from the criminal jurisdiction of the receiving
State. But diplomatic immunity covers much more, such as inviolability of person
and residence, immunity from customs and taxes and other matters.71
C. Charles G. Fenwick
Immunity is immune from the jurisdiction of the laws of the receiving state
that have consequences that a diplomatic officials immune from prosecution
receiving countries, thus making an official diplomatic outside the jurisdiction of
the receiving state.72
D. Syahmin AK
Diplomatic immunity is defined as a right that is inviolable (inviolability)
owned by a diplomat in performing duties as a representative of a foreign state
70 Setyo Widagdo, Op.cit, p.10071 Liselotte B. Watson, The Naval Attaché and International Law, 17 JAG Journal 139, p.
14272 Charles G. Fenwick, International Law, 3rd Edition, 1982, p.202
30
power as a guarantee of security and the welfare during the active period on the
basis of reciprocity. 73
E. Departemen Luar Negri Pedoman Tertib Diplomatik dan Protokol II
According to the official instructions issued by the state department, the
diplomatic immunity can be defined as immune from the jurisdiction of the
receiving state, both civil and criminal jurisdiction.74
2. Definition of Inviolability
However the Diplomatic privileges and Immunity not only consisted of the
immunity, but there is one aspect which is attributable toward the diplomatic
representatives namely Inviolability. There are some definition of inviolability,
they are :
A. Setyo Widagdo
Setyo Widagdo defined Inviolability as the immunity owned by a diplomatic
official from the state power apparatus including receiving immunity against all
possible threats from harmful interference. 75
B. Definition inviolability according Vienna Convention 1961
73 Syahmin AK, Op.cit, p. 11974 Departemen Luar Negri Pedoman Tertib Diplomatik dan Protokol II Bp 03-D, 1969 ,
Jakarta, p.38 75 Setyo Widagdo, Op.cit
31
Understanding inviolable set forth in Article 29 of the Vienna Convention
1961, which states "The person of a diplomatic agent shall be inviolable. He shall
not be liable to any form of arrest or detention," meaning that the diplomatic
missions are inviolable.76 He could not be arrested or detained. Thus, within the
meaning of the Inviolability is as immune to the instruments of state power, so
that diplomatic officials or a representative diplomat has the right to not be
subject to any action by state power apparatus in the form of detention or arrest.77
Consequences arise from the special protection stipulated in article 29 of the
Vienna Convention 1961 is the event of an attack on of a diplomatic
representative in the receiving state, the authorities prosecute and prosecute
attackers. This was expressed by Charles G Fenwick in his book entitled
"International Law":
"The person of a public minister is sacred and inviolable. Whoever offers any violence to him, not only affronts the Sovereign he represents, but also hurts the common safety and well-being of nations; he is guilty of a crime against the whole world ."78
According to the statement of by Charles G Fenwick that diplomatic
representation is considered to have sacred properties thus entitled to inviolability.
Furthermore, diplomatic representatives are entitled to the highest respect, even
Charles G Fenwick states that a violation toward the diplomatic representative
means have been abused all over the world. In addition, Inviolability also can be
76 Article 29 of Vienna Convention 196177 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p.10078 Ibid.
32
interpreted as immunity against any harmful interference.79 This is a continuation
of the provisions of article 29 of the Vienna Convention 1961 which states "... The
receiving state ... shall take appropriate steps to prevent any attack on his person,
freedom, and dignity". So, a diplomatic representative has the right to obtain
protection from the receiving state in the form of taking action as deemed
necessary by the receiving state to prevent any attacks on the honor, freedom, and
personal self of a diplomatic representative. It can be concluded that a
representative diplomat immune to any harmful interference.80
The Vienna Convention further provides full personal diplomatic
inviolability, stating simply that "The person of a diplomatic agent shall be
inviolable." The principle of diplomatic inviolability is rooted in the traditional
concept that diplomats, serving in a foreign and potentially receiving land as
surrogates of their sovereign, required appropriate protections, and that any attack
on or offense to them similarly constituted an affront to the ruler they represented.
Inviolability of the diplomat's person therefore became essential in order to allow
the diplomat to perform his or her functions without any hindrance from the
government of the receiving state, its officials, and even private persons.81 As
79 Oppenheim (1955) offered seven principles which went beyond the already accepted personal inviolability of the diplomatic agent: 1) immunity of domicile, 2) exemption from criminal and civil jurisdiction, 3) exemption from subpoena as a witness, 4) exemption from local police regulations, 5) exemption from taxes, 6) the Right of Chapel, and 7) the right of self-jurisdiction as to the envoy's retinue. See in Oppenheim, 1955, International Law, 8th edition,p. 687-757
80 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit81 Eric C. Surette, J.D., “Applicability of Diplomatic Immunity Under Vienna Convention
and Diplomatic Relations Act”, Op.cit, p.365
33
observed by the ICJ in the case concerning United States Diplomatic 41 and
Consular Staff in Tehran.
“……the institution of diplomacy, with its concomitant privileges and
immunities, has withstood the test of centuries and proved to be an
instrument essential for effective co-operation in the international
community, and for enabling states…….to achieve mutual understanding
and to resolve their differences by peaceful means……”82
The privileges and immunities of a diplomatic officer begin from the moment
he enters the territory of the receiving State and end when he leaves it. The
Vienna Convention states that if the functions of a diplomatic officer end while he
is still in the receiving State he shall enjoy the immunities until he leaves the
state, or has had reasonable time to do so.83 It is well to remember that the
privileges and immunities of a diplomatic agent are recognized only in the state to
which he is accredited. If an attaché is accredited to more than one state, which is
frequently done by small nations, unless one of the receiving States objects, he is
in diplomatic status and enjoys all its immunities while in any of the countries to
which he is accredited. Dual or multiple accreditations are normally evidenced by
the visas issued by the receiving States.84
3. Basic Theory of granting the Diplomatic Immunity and Privileges
82 ICJ Reports, 1980, http://www/icj-cij.org/docket/files/64/6291.pdf, accessed December 17, 2012
83 Liselotte B. Watson, Op.cit84 Ibid
34
The provision of immunity and privilege for diplomatic officials is the result
of the history of the practice of diplomacy, where the provision of such regarded
as international customary law. In accordance with the customs rules of
international law, diplomat who are representing their respective countries have a
strong immunity from the jurisdiction of the receiving state. The immunities are
often given clearly in the laws and regulations of the receiving state legislation,
even sometimes receiving countries give greater immunity than specified in
international law.85
Acknowledged diplomatic immunity has existed since the sixteenth century
when it was established in Europe as a result of the common exchange of
permanent ambassadors. During this era, European countries realized that in order
to assure the safety and efficacy of their work, ambassadors needed to be
protected from criminal jurisdiction in the receiving state. Hugo Grotius
expressed the theory of “sacredness of Ambassadors.” Grotius believed that
ambassadors were protected by both “divine and human law” and violation of
such law would “not only be unjust but also impious.86
Immunity from criminal jurisdiction owned by ambassador in the receiving
state has begun to be commonly applied by many countries since the seventeenth
century, it is regarded as international customary.87 In 1706, there had been a case
85 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p. 11686 Rina Goldenberg, “Abuse of Diplomatic Immunity: Is The Government Doing
Enough?”, 1 ILSA J.Int'l & Comp.L, p. 19987 Sumaryo Suryokusumo, Op.cit, p.51
35
in which the Russian ambassador in the United Kingdom was arrested on charges
of fraud. Immediately after the incident, Russian emperor sends an ultimatum to
the English queen that Russia would declare war against the United Kingdom
unless the British government apologized. However, the British Government then
filed draft legislation to the house of parliament, which states "that any foreign
ambassador must be considered sacred and inviolable". 88 In addition, the Act also
contains a provision that exempted diplomats from both civil and criminal
jurisdiction. The document became known as the "7 Anne, Cap.12.2/706", which
later became the basis for the immunity and privileges of diplomats.89
The basic principle underlying the granting of diplomatic immunity to a
diplomatic officer is that of facilitating the performance of the diplomatic
functions of the mission without interference by the authorities of the receiving
state. The Preamble to the Vienna Convention on Diplomatic Relations states that
“the purpose of such privileges and immunities is not to benefit the individuals,
but to ensure the efficient performance of the functions of diplomatic missions as
representing States.” It is therefore well to remember that the privileges and
immunities belong to the sending State and are enjoyed by the diplomatic agent
only to enable him to carry out diplomatic functions as the representative of that
State.90
88 Ibid.89 Ibid.90 Liselotte B. Watson, “The Naval Attaché and International Law”, 1 7 JAG Journal 139,
p. 139
36
The purposes of the doctrine of diplomatic immunity are to contribute to the
development of friendly relations among nations and to ensure efficient
performance of functions of diplomatic missions, so that governments may not be
hampered in their foreign relations by arrest or harassment of, or interference
with, their diplomatic representatives.91 Diplomatic immunity not only ensures the
efficient functioning of diplomatic missions in foreign states, but fosters goodwill
and enhances relations among nations.92 The reason states abide by the
international laws of diplomatic immunity may not even be legally justifiable. 93
Reciprocity, or the fear of retaliation by other states against one's own diplomats,
is a motivation to extend diplomatic immunity to other state's diplomats.94 States
do not want to subject diplomats to the foreign laws of the receiving state, so
nations grant other nations' diplomats immunity in exchange for the same
immunity for its own diplomats.
Expert Committee of the League of nations has stated that the basis of
diplomatic immunity and privileges are as follows:
“ The necessity of permitting free and unhampered exercise of the diplomatic function and of maintaining the dignity of the diplomatic
91 Sumaryo Suryokusumo (2005) stated that 92 Eric C. Surette, J.D, Op.cit, p. 1293 Gregory L. Stangle, “When Diplomacy Meets Illegality: Reevaluating The Need for
The Diplomatic Bag”, 3 Dig. Int'l L.51, p.5494 Reciprocity in diplomatic negotiations is a process of exchange between nations, a
negotiating tool whereby nations bargain with each other for equivalent treatment, See in Encyclopedia of New American Nations, http://www.americanforeignrelations.com/O-W/Reciprocity.html, accessed December 10, 2012
37
representative and the state which he represents, and the respect properly due to traditions.”95
Granting rights and privileges of diplomatic immunity based on the
principles of reciprocity between states is absolutely necessary in order to:
a. Develop friendly relations among nations, irrespective of the constitutional
system of social and cultural systems.
b. Not to meet the interests of individuals, but rather to ensure the
implementation of tasks diplomatic officials to be efficient and maximum.96
Since the sixteenth century it has been widely known that in granting
diplomatic immunity to officials, there are three theories that are often used in the
justification of granting diplomatic immunity, namely:
a. Extraterritoriality Principle
The theory of extraterritoriality suggests that the property of a diplomat and
the person of the diplomat are to be treated as if they exist on the territory of the
sending state.97 Because the diplomat is considered to be living in the sending
state, he remains immune from the criminal and civil jurisdiction of the receiving
95 American Journal of International Law, 1926 Spec. Supp, p.149 in Sumaryo Suryokusumo, Op.cit, p.30
96 Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.7297 Explained further by Alf Ross in "A Text Book of International law", which entitled
Immunity and privileges based on the theory exterritorialy include: Diplomatic envoy, staff of the mission, the members of the Legation roommates is appointed by the state, members of families are living roommates with the head of Legation, Subordinate personnel of the Legation, couriers. See in Setyo Widagdo, Op.cit, p.74-75
38
state.98 The exterritorialy approach to diplomatic immunity adopts the legal fiction
that a diplomat is always on the soil of her native state, wherever she may actually
go.99 The nature of exterritorialy was given to diplomats and representatives based
on the necessity for them to carry out their duties and functions free from state
jurisdiction and control of the receiving state.100
According to the Exterritorialy theory, a diplomatic representative’s subject
only to the laws of the sending state. While, the residence or premises of the
mission is considered part of the territory of the sending state. Sir Gerald
Fitzmaurice stated as follows:
" Exterritorialy which implies that premises of a mission in theory are outside the territory of receiving state and represent a sort of extension of territory of the sending state"101
In other terms, the diplomat and his premises are considered to be an
extension of the sending state, outside of the territory of the receiving state. 102 In
the sixteenth to the seventeenth century, this theory is very common used for
diplomatic immunity and privileges, which diplomatic representatives were
considered not as the legal subjects of receiving state.103
98 Veronica L. Maginnis, Op.cit, p. 99199 Leslie Shirin Farhangi, “Insuring Against Abuse of Diplomatic Immunity”, 38 Stan. L.
Rev. 1517, p.1518100 Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.67-68101 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p.74102 Gregory L. Stangle, op,cit, p.54103 Castel J.G, International Law, Butter Worth, Toronto, Canadian legal Casebook Series,
3rd.ed. 1976, p.627 in Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.70
39
In 1896 in the UK, there was a case where Dr. Sun Yat Sen, who is a Chinese
national political refugees who then hid in the building of diplomatic
representative of China in London.104 When the British government tried to
capture the Sun Yat Sen, it was rejected by the chief representative of China
stated that the diplomatic representative office is Chinese territory and demanded
that Sun Yat Sen freed from prosecution.105 At that time, the People's Republic of
China embassy stated that the immunities and privileges based on the principle
extrateritoriality. It was backed up for several reasons:
1. The diplomats are representatives of the state
2. They are not able to function freely unless they are granted certain
immunities and privileges. That if they continue to depend on "good will" of local
government, they may be influenced by considerations of personal safety;
3. That if there is a disruption in their communication with the governments
of the sending state, their task would not work properly and perfectly.106
Exterritorialy is a broad legal fiction that gained popularity in the sixteenth
century as permanent diplomatic missions with resident ambassadors were
established. 107The state was viewed not so much as monarchical and personal in
nature, but instead as territorial. This shift of political theory necessarily eroded
104 Sumaryo Suryokusumo, Op.cit, p 72-73105 Ibid106 Ibid107 Gregory L. Stangle, Op.cit, p. 54
40
the justification for according the diplomat personal immunity based on his status
as the alter-ego of the sending state.108 In order to replace the alter-ego
justification, the medieval theory stating that the law of one's state follows one
wherever he goes was widely adopted.109
Exterritorialy became the dominant theory throughout the eighteenth century
and became the basis for statutes in the United Kingdom and United States.
Exterritorialy theory literally assumed that embassy premises, grounds and acts
committed by the diplomatic officials as existing outside the territory of the
receiving state and, hence, outside the jurisdiction of receiving state.110 By the
mid-eighteenth century, the shortcomings of literal application became apparent,
as local criminals could flee to diplomatic missions or claim attachment to the
diplomatic representative to avoid prosecution.111 Scholars continued to rely upon
extraterritoriality and to use it to draft codes of diplomatic relations through the
early twentieth century, despite criticism which began appearing at the end of the
nineteenth century. Critics asserted that literal application of exterritorialy created
situations undesirable to receiving states and could bring absurd results if carried
to extremes. 112
108 Ibid109 Ibid110 Stephen L. Wright, “Diplomatic Immunity: A Proposal for Amending The Vienna
Convention to Deter Violent Criminal Acts”, 5 B.U.Int'l L.J.177, p. 185111 Ibid112 Ibid
41
This theory is ironic, considering that the diplomat would not be immune for
the same illegal conduct if committed in the sending state. Not surprisingly, this
theory has been described as a legal fiction, and has fallen out of favor. In fact,
this theory was the dominant theory which usually adopted during the eighteenth
century. Exterritorialy theory was the oldest of the theories, but has received
increasing criticism in recent years. Critics view it as too expansive because it
prevents states from restricting the privileges and immunities of diplomats.113 This
dissatisfaction led an increasing number of states that were avoided to adopt
exterritorialy theory in practice although they were formally adhering to it. Thus,
exterritorialy became a theory which all states acknowledged as forming the basis
of diplomatic immunity, but which none practiced.114 The exterritorialy theory has
fallen into disuse because of its fictional nature and its lack of support in current
thought on the privileges and immunities of diplomats.115
b. Representative Character Theory
Representative character theory is a theory that bases granting privileges and
immunities to the individual legal subject (individual right) as a result of the legal
position representing the state.116 Because the diplomatic representation position
is equated with head of state, then the treatment should be taken with the certain
113 Veronica L. Maginnis, Op.cit, p. 991-992114 Stephen L. Wright, Op.cit, p.185115 Michael B. McDonough, 1997, “Privileged Outlaws: Diplomats, Crime and Immunity”,
Op.cit, p. 478116 Jawahir Tonthowi, Op.cit, p. 5
42
protocol.117 This theory offered to justify diplomatic immunity characterizes a
diplomat as the personification of the sovereign of the sending state.118
Consequently, if diplomats were seen as a representative or the alter ego of head
of state, then they will be entitled to all the immunities and privileges that he
would have enjoyed.119 This theory believes that, by giving the privileges and
immunities to officials of foreign diplomatic means that receiving countries
respect the greatness and sovereignty of the state sending and its head of state.120
Although the representation theory has lost considerable force in the modern
era, however it has not completely been abandoned and some courts persist in
granting diplomatic immunity including in America. They have referred to that
theory for settling both civil and criminal, it based on the notion that the diplomat
is the alter-ego of the sending state.121 The United States Supreme Court explained
representation theory in the 1812 case The Schooner Exchange v. M'Faddon: “the
assent of the sovereign to the very important and extensive exemptions from
territorial jurisdiction which are admitted to attach to foreign ministers, is implied
from the considerations that, without such exemption, every sovereign would
hazard his own dignity by employing a public minister abroad.”122
117 Protocol is the rules of ethics in the diplomatic law and diplomatic practices that are ceremonial including certain formalities. See in Sumaryo Suryokusumo, Op.cit, p.172
118 Lori J. Shapiro, ”Foreign Relations Law: Modern Developments in Diplomatic Immunity”, 1989 Ann. Surv. Am.L. 281,p. 281
119 Martin Dixon, Op.cit, p.190120 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.117121 Gregory L. Stangle, Op.cit, p.54
122 Ibid
43
Thus, the theory of personal representation also fails a modern application.
First, it gives the diplomat more authority than he deserves and thereby
undermines the supremacy of the receiving state. 123 Second, the rise of the
modern system of nations has deprived the theory of much of its validity.124
Representation theory may have worked in the days of single monarchs, however,
the modern democratic system of elected officials and warring political factions
renders it impossible for any individual diplomat to effectively represent one
sovereign.125 Finally, while it offers immunity for official acts, the theory cannot
justify extending immunity to the diplomat as an individual. Lastly, although the
personal representative theory extends immunity to official acts, it offers no
theoretical basis for protecting private acts. Yet the law of diplomatic immunity
has traditionally protected certain private acts. For these reasons, the
representative of the sovereign theory has fallen out of use as a rationale for
diplomatic immunity.126
c. Functional Necessity Theory
This theory is granting the immunity and privileges to the diplomatic
representatives based on the function of these representatives. Immunity and
Privileges granted in order the diplomatic representatives do their function
properly and perfectly, because they have owned the immunity and privileges so
123 Ibid124 Leslie Shirin Farhangi, Op.cit, p.1519125 Ibid.126 Ibid
44
it provides the widest possible opportunity in carrying out the task without
interference.127 Setyo Widagdo (2008) stated that, “a diplomatic envoy couldn’t
fulfill his responsible function if he and the members of his family and staff were
not protected from all kinds of pressure and violation on the part of the population
and authorities of state in which he reside.”128
Immunity and privileges to diplomats in order to perform its functions well
set up and recognized in article 27 paragraph 2 of Vienna Convention 1961. In the
article explains that all correspondence relating to the affairs of diplomatic
missions agency is inviolable.129 Contact was made to relate these to the
communication by correspondence or electronic media with other diplomatic
representatives is left widest.130 Thus, in the third paragraph of preamble of
Vienna Convention 1961 there is statement which supported the theory of
functional necessity as the basic of granting diplomatic immunity and privileges.
It stated 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 state”.131 The above provision suggests a basis for
diplomatic immunities. That they are needed for the efficient performance of
127 Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.71128 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p. 78129 Article 27 clause 2 of Vienna Convention 1961: “The official correspondence of the
mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.”
130 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit131 Third paragraph of Preamble of Vienna Convention 1961
45
diplomatic functions and because diplomats are representatives of states.132 After
referring to several things, it can be concluded that the Vienna convention has
adopted the theory of functional necessity.
Basically, the function of diplomatic mission which have been mentioned in
clause 1 of article 3 of Vienna Convention 1961 stated that:
“1.The functions of diplomatic mission consist of inter alia in:
a. Representing the sending state in the receiving state;b. Protecting in the receiving state the interest of the sending state and
its nationals, within the limits permitted by international law;c. Negotiating with the government of receiving state;d. Promoting friendly relations between the sending state and the
receiving state, and developing their economic, cultural scientific relations.”133
The basis of giving immunities is a combination of representational theory as
well as functional theory.134 The preamble of the Vienna Convention refers to
both considerations.135 Starke has rightly stated that the immunities and privileges
of diplomatic agents are primarily based on the need to ensure performances of
the functions of diplomatic missions, and to a secondary degree on the theory that
a diplomatic mission personifies the sending state.136
132 N. M. Abdulraheem, “Privileges and Immunities of Diplomatic in Nigeria: Limitations and waiver”, http://www.google.co.id/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&ved=0CFAQFjAE&url=http%3A%2F%2Fwww.unilorin.edu.ng%2Fpublications%2Fabdulraheemnm%2FPRIVILEGES_AND_IMMUNITIES_OF_DIPLOMATIC_IN%2520NIGERIA_LIMITATIONS_AND_WAIVERS.pdf&ei=QIfIUKbkGpHRrQeX7IHIDw&usg=AFQjCNFWmqWumVfihXcQJW8rxC9arLRUXg&bvm=bv.1354675689,d.bmk
133 Article 3 of Vienna Convention 1961 clause 1134 Tania Sebastian, “Diplomatic Immunity versus Harm to the Individual: An Attempt at
Appraisal”, http://ssrn.com/abstract=2053426135 Ibid136 J.G. Starke, Introduction to International Law, Butterworths, 1989, p.421
46
3. Diplomatic Immunity and Privileges govern in the Vienna
Convention 1961
All provisions regarding political and legal reasons in granting immunities
and privileges to diplomatic officials contained in the 1961 Vienna Convention
which is the result of the codification of international customs.137 In the Vienna
Convention 1961, the immunity and privileges for diplomat representative in a
foreign state essentially fall into three categories:
a. First, the immunity includes the inviolability of diplomats including
his residence as stated in the articles 29, 30, and 41, as well as immune them from
the jurisdiction of either administrative, civil and criminal law (article 31).
b. Second, privileges or concessions given to the diplomats that is the
release of their obligation to pay taxes, customs, social security and personal
(chapters 33, 34, 35 and 36)
c. Third, the immunities and privileges granted to diplomatic missions
not only involve building inviolability of foreign missions in the state, including
archives and freedom of communication, but also freedom from any taxation of
the receiving state (article 22.23, 24, 26 and 27).138
137 Elisabeth Septin Puspoayu, Kekebalan Gedung Perwakilan Diplomatik dalam situasi Khusus (Studi Kasus Kedutaan Besar Libya di London 1984), http://aiuabeth.blogspot.com/2012/05/cobacoba.html accessed on December 7, 2012, 19:27
138 Ibid
47
For more details, about aspects of the privileges and immunity set forth in
Vienna convention in 1961 can be categorized as follows:
1. Inviolability
It shelters the mission and its members from any constraint or coercion
which receiving state, by virtue of its sovereignty, may exercise over all persons,
and object presents anywhere in its territory. Some commentators have used the
words “immunity from coercion” to interpret inviolability.
1.1 Inviolability of Mission Premises
As a necessary incidence to the establishment and functioning of a
diplomatic mission, the premises the mission occupies must be protected from
external interference. The principle of inviolability of mission is clearly stated in
some article on Vienna Convention 1961, which stated:
a. The Premises
Basically the inviolability of the Premises of mission involves two aspects.
The first aspect, it is the obligation of the receiving state to provide full protection
from any disturbance. Receiving State shall take measures to prevent any
interruption to foreign diplomats, both the freedom and the dignity of
diplomats.139 In fact, in the event of extraordinary circumstances such as the
139 William L. Tung, International Law in an Organizing World, Thomas Y. Cromwell Company, New York, 1968, p,263-264 in Sumaryo Suryokusumo, Op.cit, p.70
48
rupture of diplomatic relations or armed conflict between sending and receiving
countries, the obligation to protect the receiving state representatives, including
building and archival property in it. The second aspect, standing premises of the
mission declared itself immune from examination including goods and all files in
it. This provision has been stipulated in article 22 of the Vienna Convention of
1961, which states:
1. The premises of the mission shall be inviolable. The agents of receiving state may not enter them, except with the consent of the head of mission.140
2. The receiving state is under special duty to take all appropriate steps to protect the premises of mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.141
b. Inviolability of Furnishings, Property, and Archive
Inviolability of the premises also include the furnishing and other
property there in and the means of transport of the mission.142 The property is also
presumably including intangible property such as bank account. In line with the
Article 22 paragraph 3 which stated:
(3) The premises of the mission, their furnishings and other property there on and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”143
c. Extra-Territoriality
140 Paragraph 1 of Article 22 of Vienna Convention 1961141 Paragraph 2 of Article 22 of Vienna Convention 1961142 Muhammad Munir, Op.cit, p.42143 Paragraph 3 of Article 22 of Vienna Convention 1961
49
The origin of immunity of the premises may have been a notion of
extraterritoriality, that is, to say that the embassy of a state was regarded as a
piece of the sending state territory. That fiction is abandoned in international
law.144
d. Inviolability of Archives, Documents, Bags, Communication, and
Official Correspondence of the Mission
Diplomatic bag includes a form that must be protected and immune from the
actions state apparatus of the receiver so that immunity and confidentiality can be
completely assured. The provision is important particularly when the documents
of the mission are outside of the premises. The bag cannot be open or detained
unless there are strong grounds that it contains something which is unlawful.145It
is in accordance with the article 24 paragraph 3 and 4, which stated:
3). Diplomatic Bag shall not be opened or detained
“4). The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.”
As governed in the paragraph 2 of Vienna Convention 1961, the official
correspondence with the receiving state or sending state or any individual are also
inviolable. 146 In line with that, the reach the maximum protection of its
144 J. G Starke, Introduction to International Law, 10th Edition, 1991, p.249. Seen also Inggrid Deter, International Law, Stockholm ,p.524
145 Muhammad Munir, Op.cit, p.42146 Article 27 paragraph 2: “The official correspondence of the mission shall be inviolable.
Official correspondence means all correspondence relating to the mission and its functions.
50
correspondence, the Vienna Convention also provides the inviolability granted to
the Diplomatic Courier. The inviolability granted to the diplomatic courier stated
in Article 27 of Vienna Convention paragraph 5, stated:
5). The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by receiving state in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.147
2. Inviolability of the Mission Members
2.1 Diplomatic Agent
The personal liability of the diplomat is historically and logically is the roots
of all other rights. The person of a diplomatic agent is inviolable and he should
not be liable to any form of arrest and detention. It is governed in the article 29 of
Vienna Convention 1961, which stated:
The person of a diplomatic agent shall be inviolable. He shall not liable to any form of arrest and detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his persons, freedom and dignity.148
The inviolability also includes the private residence of the diplomatic agent.
The private resident of a diplomatic agent get the same protection and enjoy the
inviolability as the premises of the missions. The legal basic of that protection is
the Article 30 paragraph 1 that stated, “The private residence of diplomatic
147 Paragraph 5 of Article 27 of Vienna Convention 1961148 Article 29 of Vienna Convention 1961 on Diplomatic Relations
51
agents shall enjoy the same inviolability and protection as the premises of the
mission.149
Actually, the privileges and immunity including inviolability not only owned
by diplomatic but also his family as well. They enjoy the same protection and
have the right to enjoy inviolability, it is governed in the Article 37 paragraph 1
that stated: “The members of the family of a diplomatic agent forming part of his
household shall, if they are not nationals of the receiving state, enjoy the
privileges and immunity specified in article 29 and 36.150 As stipulated in article
27 of Vienna Convention 1961, that family members of diplomatic agents are
entitled to diplomatic privileges and immunities. However, their family members
acquire privileges and immunities, unless the freedom of civil law and state
administrative receiving state does not include acts done beyond their duties.151
2.1. Immunity from Jurisdiction
Immunity from jurisdiction is the logical consequence of personal
inviolability.152 It means that the diplomat cannot be subjected to any form of
coercion even when exerted by the judicial authority of the state of the
residence.153 According to the ILC, immunity means the privilege of exemption
from, or suspension of or non-amenability to the exercise of the jurisdiction by
149 Article 30 paragraph 1 of Vienna Convention 1961 on Diplomatic Relations150 Article 37 paragraph 1 of Vienna Convention 1961 on Diplomatic Relations151 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.135152 Muhammad Munir, Op.cit, p. 43153 Ibid
52
the competent authorities of the territorial state.154 The Vienna convention
provided the legal basis for granting the immunity as stated in Article 31
paragraph 1. The Article stated that
“A diplomat agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
a. A real action relating to the private immovable property situated in the territory of receiving state, unless he holds it on behalf of the sending state for the purpose of mission;
b. An action relating to the succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state;
c. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.155
The immunity of diplomatic agent covers three aspects, namely criminal,
civil, and administrative. Theoretically, that immunity is absolute and has no
exception. However, it does not dispense the person enjoying it from respecting
the law itself. The immunity is not only owned by diplomatic agent, but also his
family as well as governed in article 37 paragraph 2.
2.2. Immunity from Measures of Execution
Besides regulating immunity from jurisdiction, Vienna convention 1961 also
provides that the receiving is not allowed to do any kind of execution. This is
done in order to give respect to the foreign diplomatic missions that are in the
receiving state. Execution can be done for a few exceptions as provided in sub-
154 Ibid155 Paragraph 1 of Article 31 of Vienna Convention 1961
53
paragraphs a, b, c of article 31 of Vienna convention 1961, but it should not
violate the inviolability of the diplomatic agent or his residence. The Article 31
paragraph 3 stated that,
“No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraph (a), (b), (c) of Paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his resident”156
2.3. Immunity from Giving the Evidence
This immunity is governed in the Article 31 paragraph 2, which stated “A
diplomatic agent or member of a special mission is not obliged to give evidence
as a witness”157. It also applies to the family members of diplomat agent. This
immunity is absolute, but it does not bar a request to give evidence to be
addressed by diplomatic channels to members of the mission.158 Such request may
be accepted in the interest of justice or of that mission itself.159
2.4. Immunity in The Third State
It is common practice that the third state to give immunity and privilege or
right to freely traverse the diplomats during a transit. Diplomat entitled to
immunity and privileges in general also allowed to enjoy the same rights in third
countries, including the freedom and protection necessary for communication and
156 Paragraph 3 of Article 31 of Vienna Convention 1961157 Paragraph 2 of Article 31 of Vienna Convention 1961158 Muhammad Munir, Op.cit, p.44159 Ibid
54
correspondence. It is in accordance with the Article 40 of Vienna Convention
1961, which stated:
“If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own state, the third State shall accord him inviolability and such other immunities as maybe required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges and immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their state. “160
3. Exemptions
Basically, member of foreign missions are exempt from dues and taxes.
There are two reasons why exemptions become important to ensure the efficient
performance of their functions, they are:
a. An external mission is an organ of a subject of international law,
which carries out its functions in the interest of both the sending and receiving
state, therefore there is no reason why it should pay tax to the later.
b. An obligation to pay taxes would be a form of direct constraint
exercised by the receiving state and it will also have the right to inquire into their
revenues and accounts which is not permitted by their personal inviolability.
3.1 Tax Exemptions
The tax exemption is governed in the paragraph 1 of Article 23 of Vienna
Convention 1961, which stated:
160 Paragraph 1 of Article 40 of Vienna Convention 1961
55
“The sending state and the head of mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.”161
It also implies that the exemption applies to taxes on purchase of property,
but that provision does not apply to taxes payable by persons contracting with the
mission.162 Moreover, the fees and charges by the mission in the course of its
official duties are also exempt from all dues and taxes.163
3.2 Exemptions from Customs Duty
All types of missions have exemption from customs duty, taxes and related to
charges.164 The obligation of receiving state to exempt the taxes toward
diplomatic agent is governed in the Paragraph 1 of Article 36 of Vienna
Convention 1961, which stated:
“The receiving state shall, in accordance with such laws and regulations as it may
adopt, permit entry of and grant exemption from all customs duties, taxes, and related
charges other than charges for storage, cartage, and similar services, on:
a. Articles for the official use of the mission
b. Articles for the personal use of a diplomatic agent or members of his family
forming part of his household including articles intended for his establishment”165
161 Paragraph 1 of Article 23 of Vienna Convention 1961162 Muhammad Munir, Op,cit, p. p.45163 Article 28 of Vienna Convention 1961 : “The fees and charges levied bv the mission in
the course of its official duties shall be exempt from all dues and taxes.”164 Muhammad Munir, Op.cit, p.46165 Paragraph 1 of Article 36 of Vienna Convention 196
56
3.3 Other Exemption
Actually, beside any tax exemption still there are some exemptions provided
by the Vienna Convention 1961 for the Diplomatic agent. Diplomatic agent has
no obligation to do any personal services in the receiving state, including military
services. Article 35 of Vienna Convention 1961 which protect the diplomatic
agent from that obligations, which stated: “The receiving state shall exempt
diplomatic agents from all personal services, from all public services of any kind
whatsoever and from military obligations such as those connected with
requisitioning, military contributions and billeting”.166 Moreover, members of all
types of missions are also exempt from the laws and regulations of the receiving
state regarding the registrations of aliens and resident permit, but they cannot
acquire the nationality of the receiving state, although it does not bar them from
applying the nationality.167
4. Diplomatic Privileges and Immunity in Perspective of Shariah
Basically, the sending of envoys and messenger to the foreign countries and
their inviolability can be traced back to the time immemorial.168 The principle of
inviolability can be considered chronologically was the first rule of customary
international law. It is the principle which made the contact between primitive
166 Article 35 of Vienna Convention 1961167 Muhammad Munir, Op.cit168 Muhammad Munir, Op.cit, p.30
57
were sent on ad hoc missions. 169 Prophet Muhammad sent envoys to various Arab
tribes and foreign states and received foreign envoys at the same time.170 The
notion of religious legitimacy of the diplomat also existed in the Greek city-state
system.171 The inviolability of envoys was the basis from which all other
privileges sprang. Immunity given to the envoys of the sending state is on the
basis of reciprocity.172 The envoys of foreign states were exempt from duties and
taxes if the moslem envoys enjoyed the same privileges in foreign states.
In Islam, the ad hoc envoys are personally inviolable. The Prophet
Muhammad himself entertained foreign envoys and lodged them in special guest
houses.173 Nowadays, as the missions have become permanent, therefore the
personal inviolability of diplomats necessitates the inviolability of the place
where the diplomat works and lives.174 Moreover, it also gives immunity to his
belongings and whatever he needs to facilitate his functions as a diplomat.
Consequently, his family should also have the same status as they accompany him
to facilitate his work in the receiving state. Therefore, the inviolability of the
169 Ibid, p. 30-31170 Afzal Iqbal, Diplomasi in Islam, Institute of Islamic Culture, Lahore, 1965, p. 61. The
Prophet sent his envoys to the rulers of Al-Yamama Bahrain, The Governors of Damascus and Alexandria. A messenger was sent to Caesar The King of Persia who tore up the Apostle’s letter. See Ibid p.89-92
171 Ibid172 The Prophet detained the envoy of Quraish until the moslem envoy detained in Mecca
returned safe to Hudaibiyah where the prophet was camping. See Al-Halabiy, Ali bin Burhanduddin, Insal ul Quom, III, p.26 in Muhammad Munir, Op.cit, p. 40
173 M.Hamidullah, The Muslim conduct of State and Muhammad Ashraf Lahore, 1977, p.151 in Muhammad Munir, Op.cit
174 Muhammad Munir, Op.cit, p.48
58
premises of the mission or its member is constant with sharia.175 Basically, Sharia
allows everything unless it is forbidden by it.176 Shybani in Al-Siyar al-kabir
stated that, the envoy from any side shall be inviolable even if no special
permission of his inviolability is given by any side. 177 On the other hand, the
immunity of diplomats and premises of the mission should be accorded because
of contract between Islamic State and any other state. The Vienna Convention
1961 on diplomatic relations is a multilateral agreement to which almost all states
in the world are parties. Islam strictly obliges an Islamic State to hold on to its
agreement. The obligation to fulfill the agreements stipulated in the Quran verse
5:1 of Quran goes thus,” O, you believe! Fulfill all obligations”. Then, The
Prophet Muhammad reported to have said that, “Muslims have to keep up to their
terms (including to the terms of their agreement and promises). 178 It is quite clear
that Islam provide clear rules regarding the fulfillment of agreement and promises
as quoted from Quran and Hadith. Furthermore, in his commentary of the Holy
Quran which was wrote by Abdullah Yusuf Ali stated that, “… our states enters
into a treaty: every individual in that group or state is bound to see that as far as
lies in his power, such obligations are faithfully discharged”.179
175 See Matte ur-Rahman, Al-alakat al-Dahlomasla Ak Dawlia ala Daw’e al-Sharia al Islamic ( Diplomatic Relations in Islamic Law), Arabic unpublished LL,M thesis submitted to the Faculty of Sharia and Law at the IIU Islamabad, 1994, p. 168 in Muhammad Munir, Op.cit
176 See in Al Suciti, Jalal al-Din, al-isbah wa-Naazair, p.60 in Muhammad Munir, Op.cit177 See Sarksi, supra note 6.V.I, p,296 in Muhammad Munir, Op.cit178 Muhammad bin Ismail, Saheeh al-Bukar, Kitab al-Jjara, volume 3, p.52. Seen also“
Muslim Jurist have therefore, laid down the rule that, “Keeping up to the terms of the agreement is obligatory”. See in matter Rahman, supra note 31, p.173
179 See in The Holy Quran Text, Translation and Commentary by Abdullah Yusuf A.H, published by Amann Corporation Corporations Maryland, USA, p.243
59
M. Hamidullah stated that, “even if the envoy, or any company, is a criminal
of the state to which he is sent, he may not treated otherwise than as an envoy”. 180
In Pakistan, the Federal Shariah Court considered diplomatic immunities under
the Diplomatic Immunities (Commonwealth Countries Representatives) Act
1957. According to the court diplomatic immunity is in conformity with Sharia.
The Court ruled that, “the grant of immunities to the diplomatic representatives is
incumbent with sharia. It is significant to note that the immunity and privileges
are based on the reciprocity principle. Furthermore, it has been a custom to accord
immunity to the diplomats and it is also in the best the state to accord immunity to
foreign envoys. To sum up, the origin of immunities in Islam can be found in four
major sources of Islamic law including: Quran which is respecting a multilateral
agreement including in this one regarding the immunity of diplomats, Sunnah,
Custom, and Maslaha.181 However, it is the conduct of the Prophet Muhammad
which has much information about the immunity of envoys The Prophet received
a delegation led by Aamir bin e-Tufail who abused the Prophet. While returning
the delegation threatened to attack Medina and destroy it. Despite their
misbehavior and treat, The Holy Prophet was extremely polite to them and saw
them off with great honor and respect.182
C. Protection of Receiving State under Vienna Convention 1961
180 Hamidullah, Supra note 30, para.291 in Muhammad Munir, Op.cit, p.49181 Matteur Rahman, supra note 31,p. 186 in Muhammad Munir, Ibid182 Ibn Al-Qayyim, Zadul Maad, v.III, p.29 in Muhammad Munir, Op.cit
60
The Vienna convention 1961 which entered into force since 24 April 1964
contains the procedures and rules regarding the exercise of diplomatic relations
and the provision for diplomatic immunity and privileges for the diplomatic
agent. The Vienna Convention provides a complete framework for the
establishment, maintenance and termination of diplomatic relations on a basis of
consent between independent sovereign States. Vienna Convention 1961 also
specifies the functions of diplomatic missions, the formal rules regulating
appointments, declarations of persona non grata of a diplomat who has in some
way given offence, and precedence among heads of mission. It sets out the special
rules regarding privileges and immunities which enable diplomatic missions to act
without fear of coercion or harassment through enforcement of local laws and to
communicate securely with their sending Governments. 183
However, in reality what is stipulated in the provisions contained in the 1961
Vienna convention is more focused to the obligations to be fulfilled receiving
state toward the diplomatic agent who served their state. It's certainly not fair
since diplomatic relation is a mutual relationship so that both parties have the
equal right and the same rights. Lack of regulation for the receiving state's rights
make the position of the receiving state itself has weakened since diplomatic
immunities and privileges which are applied in the receiving state. This is what
make it under the spotlight due to the fact that diplomatic immunity and privileges
183 Eileen Denza, Vienna Convention on Diplomatic Relations, United Nations Audiovisual Library of International Law, 2009, p.3 www.un.org/law/avl, accessed on December 14, 2012
61
are often abused by the diplomat and causing a harm to the receiving state.
Therefore, it needs to be given the protection of the state to ensure the
implementation of good diplomatic relations and dignified.
Thus, diplomatic relations are established by mutual consent among the two
states concerned but may be broken off unilaterally often as a mark of disapproval
of an illegal or unfriendly act by the other state.184 The protection obtained by the
receiving state in case of violations committed by the diplomatic agent in the
receiving state served including two aspects, namely persona non grata and the
waiver of immunity.
a. Persona non Grata
The receiving state may at any time declare a diplomat 'persona non grata'.185
Right of each state to declare any diplomatic or consular agent persona non grata
is one of the oldest principles of diplomatic and consular law, echoed as far back
as the work of the international law’s founding fathers.186 It is a right that has
remained uncontested and is currently enshrined in the 1961 Vienna Convention
on Diplomatic Relations (Article 9) and the 1963 Vienna Convention on Consular
Relations (Article 23), which both drew upon the 1932 Harvard Draft (26 AJIL
(1932 Supp.) 79), enabling similar terms of provision.187 The right of the receiving
184 N. M. Abdulraheem, Op.cit, p.10185 Ibid186 Jean d’Aspremont, Persona Non Grata, R. Wolfrum edition, Max Planck Encyclopedia
of International Law, 2009, p. 1187 Ibid
62
State to request the recall of offending diplomats was already supported by
Gentilis, Grotius and Vattel.188 Sumaryo Suryokusumo (2005) defined “Persona
non grata” as a rejection or disapproval of a diplomat by the receiving state either
before or after the appointment and since the diplomat declared persona non grata,
the sending state is obliged to immediately withdraw diplomats from the receiving
state.189 Regulation of persona non grata been set in article 9, paragraph 1 1961
Vienna Convention, which states:
“(1) The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of its diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In such a case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared persona non grata or not acceptable before arriving in the territory of the receiving State.”190
The right of every State to declare any consular or diplomatic agent persona
non grata is one of the main principles of the mechanism of diplomatic and
consular law enforcement. When diplomatic and consular privileges and
immunities are abused by foreign agents, the receiving state will usually resort to
the declaration persona non grata to counter such abuses. The ability to declare an
agent persona non grata, together with the possibility to merely severe diplomatic
and consular relations, is a thus a “means of defense against, or sanction for, illicit
activities by members of diplomatic and consular missions” provided by
188 Ibid189 Sumaryo Suryokusumo, Op.cit, p.171190 Article 9 paragraph 1 of Vienna Convention 1961
63
diplomatic and consular law.191 In February 2008, Philip S. Goldberg a diplomat
of United States for the Bolivia was declared persona non grata after being
accused of espionage. Officially on 10 September 2008, the Government of
Bolivia expelled Mr. Goldberg, after declaring him persona non grata.192 There
was a case which recently occurred, in May 2012 where Panamanian diplomat
named Roberto Carlos Vallarino was declared persona non grata by the
government of Filipina for the case of raping a 19 years old girl in Filipina. This
was happened because the Panamanian government refuse to waive the immunity
of that diplomat so that the diplomat cannot be adjudicate before the Filipina
court. No longer after that declaration of persona non grata, the government of
Panama recalled that diplomat.193 Based on that example of cases we can
conclude that persona non grata is an attempt to provide a punishment for
violation of foreign diplomats in the region in the form of eviction. It happens
because the receiving state does not have the authority to prosecute foreign
diplomats as they have diplomatic immunity.
191 ICJ, Diplomatic and Consular Staff in Teheran, paragraph 83. See in Jean d’Aspremont, Op.cit, p.3
192 Analisa Kasus Persona Non Grata, http://serba-serbiceritasehari-hari.blogspot.com/2010/04/analisa-kasus-persona-non-grata.html, accessed Feb 5, 2012
193 PH declares Panamanian diplomat in rape case ‘persona non grata’, http://globalnation.inquirer.net/36619/ph-declares-panamanian-diplomat-in-rape-case-persona-non-grata, accessed Feb 5, 2012
64
Indeed, the receiving State must in any circumstance respect the inviolability
of diplomatic or consular agents, premises, archives and documents.194 This does
not mean that the receiving State is not entitled to take counter-measures outside
the scope of diplomatic and consular law in reaction to violation of diplomatic
and consular law by the sending State. So, basically persona non grata is a right
held by the receiving state to expel a foreign diplomat that leads to the end of its
term on certain reason.
It was agreed that the sending state was internationally obliged to recall the
agent concerned or to terminate his functions with the mission failing to do so. An
agent may also be declared persona non grata when there is an interference with
the internal affairs of the receiving State through subversive activities such as
espionage or terrorist activities.195 Such behavior constitutes an infringement of
the agent’s duty to respect the laws and regulations of the receiving state and not
to interfere in the internal affair s of the receiving state.196 Sumaryo Suryokusumo
already defined some conduct which possible to be the reason dealing with the
declaration of persona non grata, they are:
a. The activities carried out by foreign diplomats and political subversion
and transgression which is not only detrimental to the national interest but also
violate the sovereignty of the receiving countries.
194 Article 50 of the Articles on State Responsibility for Internationally Wrongful Act, State Responsibility
195 Ibid196 Ibid
65
b. The activities carried out are clearly contrary to law and legislation
receiving countries.
c. The activities related to espionage activities deemed destabilizing and
national security of the receiving state.197
In any case, the agent concerned must be offered a reasonable time to leave
the state while he remains entitled to the privileges and immunities attached to his
function.198 If the sending state refuses or fails within a reasonable period to carry
out this obligation, the receiving state may refuse to recognize the person
concerned as a member of the mission. Furthermore, the receiving state is allowed
to consider the agent an ordinary foreign person without any immunity or
privilege. According to the ICJ (International Court of Justice), if the sending
state does not recall the agent concerned, the loss of diplomatic and consular
privileges is ‘almost immediate’.199 This means that this person can be expelled if
not recalled by the receiving state or if he fails to voluntary leave the state, but
provided that the conventional and customary rules related to the treatment of
foreigners are respected.200 However, the effectiveness and choice of each of these
197 Setyo Widago and Hanif Nur Widhiyanti, op.cit , p.100 seen also in Sumaryo Suryokusumo, op.cit, p. 122-134
198 Eritrea-Ethiopia Claims Commission, Partial Award, Diplomatic Claim, Eritrea ’s Claim No. 20, 19 December 2005, p. 9
199 United States Diplomatic and Consular Staff in Teheran Case (United States v Iran), paragraph 86 See in Jean d’Aspremont , p.6
200 Ibid
66
responses will have to be primarily assessed in terms of considerations of
reciprocity and bilateral relations of the sending and receiving states.201
The issue of effectiveness of the persona non grata is still under the spotlight
because it is known in diplomatic principle of reciprocity. Sometimes the
declaration of the persona non grata brings the diplomatic relation toward the
worse condition. Sending countries could be feeling offended against the
declaration of persona non grata to the diplomats. Because basically
implementations by treating foreign diplomats well so their diplomats treated the
same as what they have given to foreign diplomats. So it does not rule out the
possibility that a state diplomat declared persona non grata they retaliated by
doing the same to foreign diplomats residing in the territory they come from the
countries concerned. This had happened in the case of U.S. diplomat who are
declared persona non grata by the government of Bolivia for alleged espionage. In
September 2008, since U.S. Government did not accept that policy replied by sent
back Bolivian diplomat to his state and declared persona non grata.202 This shows
that the persona non grata quite risky to be implemented in diplomatic relations
despite the receiving state has suffered losses from the act of foreign diplomats
within their state.
b. Waiver of immunity
201 Tania Sebastian, Op.cit, p. 10202 Analisa Kasus Persona Non Grata,
http://serba-serbiceritasehari-hari.blogspot.com/2010/04/analisa-kasus-persona-non-grata.html, accessed Feb 5, 2012
67
Besides has the right to declare persona non grata, the receiving state has
rights to request the waiver of immunity toward the sending state.203 In practice,
when the immunity of diplomatic agents have been waived by the sending state,
their immunity will immediately lost and become the ordinary person without
own any forms of privileges and immunities. Since the diplomatic immunity deal
with the immunity of his government, consequently, it is the authority of sending
state to decide whether the immunity of diplomatic agents should or should not be
waived on a particular case. Waiver must always be expressed.204 The setting of
the waiver of immunity has been mentioned in the article Articles 32 of Vienna
Convention 1961, which stated:
1. The immunity from jurisdiction of diplomatic agents and persons enjoying immunity under article 37 may be waived by the sending state
2. Waiver must always be express
Basically, the waiver of immunity can be an effective way to protect the
receiving state because it can lead to the release of the diplomatic immunity of a
diplomat so that they can be tried if you do the crime or abuse of immunity that
bring harm to the receiving state. However, the final decision regarding the
release of the rules of diplomatic immunity is fully in the hands of the sending
state. In January 2011, Russian diplomats drunk and crash two woman in Ottawa.
However, when the Canadian Government asked the Russian Government to
waive the immunity of that diplomat actually they refused it. Then, the Russian
203 Article 32 paragraph 1 of Vienna Convention 1961204 Article 32 paragraph 2 of Vienna Convention 1961
68
government stated that would do certain investigation and adjudicate that
diplomat under their law.205. In those cases, it has demonstrated the powerlessness
of waiver of immunity. Furthermore, that in fact the Canada as the receiving state
cannot guarantee whether the diplomat who has been found guilty will eventually
get an appropriate sentence or not in their home state .
Although the waiver of immunity is a right granted to the receiving but the
fact the receiving state can only request the sending state for it. This makes the
implementation of the waiver of immunity is less so effectively since 1961
Vienna convention give completely to the good faith of sending countries.
Both persona non grata and waiver of immunity not more than a remedy for
what had happened either diplomatic or abuse violations. So they are less capable
described as efforts on protecting the receiving state. This is what brought Vienna
Convention is less able to accommodate the interests of the receiving state that is
related to the lack of protection contained in the 1961 Vienna convention.
D. Relationship between Diplomatic Immunity and Privileges and the Protection of the Receiving State
In essence, state sovereignty is one of the most essential attribute of a state
gives rise to the concept of state jurisdiction.206 Countries that implement
sovereign territory would be allowed to make its own laws and its laws which are
205 CBC News Canada, http://www.cbc.ca/news/canada/story/2001/01/28/diplomat010128.html, accessed Jan 3, 2012
206 Sumaryo Suryokusumo, “Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial”, Indonesian Journal of International Law, Volume 2 no 4, Lembaga Pengkajian Hukum Internasional Fakultas Hukum Universitas Indonesia, 2005, p.686
69
legally binding. Sovereignty is a major aspect in the association with one another
state (and state organizations) which are regulated by law.207 Brownlie (1990)
stated that the sovereignty of a state will determine the form of the laws of the
state while the law will determine the condition of the rule. 208 Furthermore, one
of the state's sovereignty is immune from interference or disruption in the
international arena. Therefore, the issue of sovereignty is closely related to state
jurisdiction.209
Jurisdiction defined as the power or authority in relation to the state, that
power is a way or actions taken by a state to perform well in determining the rule
of legislation and to enforce its own national rules.210 In international law, the
term jurisdiction is intended as a legal right of a power or authority in law from
various authorities such as the jurisdiction of international arbitration jurisdiction,
extraterritorial jurisdiction, and so forth.211 Under general principle of law, every
state has exclusive jurisdiction within its own territory. 212 The state jurisdiction
would cover inter-alia jurisdiction over its resident nationals and non-resident
nationals, including that of the aliens that is become the subject of this article.
207 Moch. Basarah, “Perkembangan Doktrin Tindakan Suatu negara (Act of State Doctrine) Setelah Konsep Kekebalan Negara (Teori Imunitas)”, http://mochamadbasarah.wordpress.com/arsip/#_ftn1, accessed December 19, 2012, 11.30
208 Ian Brownlie, Principles of Public International Law, Clarendon Press, London, 1990, p.287
209 Moch. Basarah, Op.cit210 N A Maryan Green, International Law, Law of Peace, Mac Donald and Evans Ltd,
London, 1973, p.181211 SUmaryo Suryokusumo, “Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial”, Op.cit212 Ibid, p.685
70
However such jurisdiction is not an absolute one, rather it is subject to certain
limitations imposed by international law.213 The International instrument such as
Vienna convention 1961 and 1963 for instance are both governing such
limitations by creating extraterritorial jurisdiction, in which diplomatic and
consular may exercise it in the receiving state.214
Extraterritorial jurisdiction is defined as the apparent extension of the
jurisdiction of any State (quasi extentio) in the jurisdiction of another State. The
concept is based on the theory extaterritorial in relation to premises (a piece of
land where the building stands diplomatic or consular representation).
Environment premises considered additional areas of a State. Premises mentioned
in diplomatic law declared should be inviolable, it cannot be entered by local
security forces unless the permission of the head of the mission.215 Extraterritorial
jurisdiction includes jurisdiction of diplomatic and consular representatives of the
State, especially concerning the jurisdiction of a State against its citizens in other
countries. Exterritorial jurisdiction was originally called consular jurisdiction
because it was known by many states and applied to the consular.216
JB. Moore as a judge in the case of the lotus has stated that the territorial
jurisdiction of a State against foreigners as well as the territorial jurisdiction of the 213 J.L Brierly, Law of Nations, p. 22 in Sumaryo Suryokusumo, “Yurisdiksi Negara vs
Yurisdiksi Ekstrateritorial”, 686-687214 Ibid, p.687215 Sumaryo Suryokusumo, “Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial”, Op.cit,
p.690216 ICJ report, 1952, p. 93 in Sumaryo Suryokusumo, “Yurisdiksi Negara vs Yurisdiksi
Ekstrateritorial”, Op.cit, p. 690
71
state to its citizens without any special treatment or discrimination against
foreigners presented.217 However, a foreign citizen can request to be released from
the territorial jurisdiction of a State in respect of:
a. It caused by the reason of certain immunity, the foreign person is not
subject to the national laws of the receiving State.
b. That national laws are not subject to international law.218
It has been recognized that there is exception of the entry into force of the
jurisdiction of the receiving state by diplomatic immunity and inviolability which
is owned by a diplomat. Sir Hersch Lauterpacht observed ‘that the receiving
States have no right, in any circumstances whatever, to prosecute and punish
diplomatic envoys. For a diplomatic envoy must in no respect be considered to be
under the jurisdiction of the receiving State.’219
The invocation of diplomatic immunity by foreign governments to avoid the
criminal liability of diplomatic and consular personnel is a problem confronting
every nation that maintains diplomatic or consular personnel. Unfortunately,
waiver of immunity remains a rare occurrence in cases of serious crime.
Consequently, a great deal of criticism has been leveled at the system of
217 Yurisdiksi, http://datalfa2011.blogspot.com/2011/06/yurisdiksi_02.html, accessed Feb 19, 2013
218 Huala Adolf, Aspek-aspek Negara dalam Hukum Internasional, Rajagrafindo Persada, Jakarta, 1996, p.152
219 Bradley Larschan, “The Abisinito Affair: A Restrictive Theory of Diplomatic Immunity?”, 26 Colum. J. Transnat'l L.283, p. 284
72
immunity and a number of proposals have been put forth to hold diplomats
accountable for crimes committed.220
E. Theory of Amendment
Basically, Vienna Convention contains no provision for amendment.
However, Amy Zeidman provided two possible methods to amend it. First, the
Convention could be amended by using the method provided in the United
Nations Charter.221 This would require a vote of two-thirds of the Convention
signatories.222 This method of amendment is consistent with the drafters' intent
that the principles of the United Nations Charter be considered in examining the
Vienna Convention.223 This argument was supported by the Vienna Convention
preamble “The States Parties to the present Convention . . . [have] in mind the
purposes and principles of the Charter of the United Nations concerning the
sovereign equality of States, the maintenance of international peace and security,
and the promotion of friendly relations among nations . . . .”224
220 James S. Parkhill, “Diplomacy in The Modern World: A Reconsideration of The Bases for Diplomatic Immunity In The Era of High-Tech Communications”, 21 Hastings Int'l & Comp. L. Rev. 565, p.566
221 Amy Zeidman, Op.cit, p. 430222 “Amendments to the present Charter shall come into force for all Members of the
United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly . . . .” U.N. Charter ch. XVIII, art. 108. The General Assembly is composed of all member states with no more than five representatives from each state. U.N. Charter ch. IV, art. 9, paras. 1-2.
223 Amy Zeidman, Op.cit224 Paragraph 2 of Preamble of Vienna Convention 1961
73
A second possible method of amendment is the method used in the Vienna
Convention 1969 on the Law of Treaties (“Treaty Convention”).225 The Vienna
Convention on the Law of Treaties affirmed the modern practice of amending
multilateral treaties by another multilateral treaty which comes into force only for
those states which agree to it.226 Although this treaty does not apply to the Vienna
Convention on Diplomatic Relations, it is a useful guide. The Treaty Convention
permits amendment without agreement among all parties. The Treaty Convention
does require, however, that all contracting states have a right to take part in the
decision to amend and may either become parties to the treaty as amended or may
choose not to be bound by it.227
The general rule regarding the mechanism of amendment of treaties
governed in Article 40 paragraph 1-2, which stated:
1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs
2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in:
a. the decision as to the action to be taken in regard to such proposal;
b. the negotiation and conclusion of any agreement for the amendment of the treaty.228
225 Amy Zeidman, Op.cit226 I. Sinclair, The Vienna Convention on the Law of Treaties, 1984, p.106 in Amy
Zeidman, Op.cit227 Vienna Convention on the Law of Treaties, supra note 61, art. 40. Agreement among all
parties is not required, but every party has the option to be excluded from the amended agreement.228 Article 40 paragraph 1-2 of Vienna Convention 1969 on Law of Treaties
74
So, by the common ways which is usually taken by nations to amend the
convention, there are two possible ways to amend Vienna Convention 1961 as
well.
CHAPTER III
A. Urgency to Amend the Vienna Convention 1961 on Diplomatic Relation
1. Vulnerability of Vienna convention to be abused by diplomat regarding
the diplomatic privileges and immunity.
The implementation of Vienna Convention 1961 is still under spotlight. It is
cannot be separated from the abuse of some provision in Vienna convention
regarding the diplomatic privileges and immunity conducted by the diplomatic
75
agent. Vienna Convention on diplomatic relation which entered into force in 1961
still contains a lot of loopholes that allow it to be abused. Basically, the Vienna
Convention 1961 gives the absolute immunity toward diplomatic agent in order to
carry out his function optimally and without any interference by receiving state. It
is based on the paragraph 4 of preamble of Vienna convention 1961 which stated
that, “realizing that 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 state.229 Naturally, the diplomatic privileges and
immunity which granted to the diplomat will make the diplomatic agent free from
the intervention or pressure from the receiving state. These rights makes receiving
state does not have any control over any diplomatic activities conducted their
territory. However, the fact that diplomatic privileges and immunities of
diplomats is to provides space to do more or beyond the main purpose of granting
such rights. Diplomatic immunities and privileges are often abused by the
diplomat with a specific motive to fulfill their personal goals outside of the main
tasks of the diplomatic representation. With those rights guaranteed by the Vienna
Convention 1961, for decades, cases of abuse and privileges of diplomatic
immunity continues to happen, and most of these cases the receiving countries
who continue to suffer losses either directly or indirectly. Aspects of regulation on
the rights and privileges of diplomatic immunity set forth in the Vienna
Convention 1961 increasingly in the spotlight as it contains many loopholes that
229 Paragraph 4 of preamble of Vienna Convention 1961
76
often provide opportunities for the abuse of rights. In short, there are several
aspects of diplomatic privileges immunities which usually being abused by
diplomat, they are:
a. Personal Immunity and inviolability
1. Immunity from the jurisdiction
In 1776, there is notion that quite popular at that time which stated "no one is
above the law", it was popular during the founding of the United States.230 That
principle has been a driving force throughout the great ideological experiment
known as democracy. Everyone agree that people who commit crimes must
responsible for them.231 However, the simplistic nature of this notion fails to
capture the whole truth of the current system of international law.232 International
law permits certain individuals to escape accountability for their crimes. Since the
enactment of the Vienna Convention 1961, the principle of diplomatic immunity
has enabled foreign diplomats to avoid prosecution for violations of the receiving
state's laws. There is little doubt that these core protections have existed for
centuries. However, many argue that there is a need for wholesale changes to the
law of diplomatic immunity to ensure justice is obtained for the victims of past
diplomatic crimes and to deter diplomats from committing crimes in the future.233
230 William G. Morris, 2007 Solutions to The Problems of Diplomatic Crime and Immunity, 36 Hofstra L.Rev. 601, p.601
231 Ibid.232 Ibid.233 Ibid.
77
As such, a debate of continuing to provide foreign diplomats with diplomatic
immunity still exists up today.
Vienna Convention 1961 grants personal immunity toward diplomat apart
from the immunity and inviolability of the mission. This instrument makes a
diplomatic agent is not only immune from the jurisdiction of the criminal but also
civil and administrative. It is all governed in the Article 31 paragraph 1 which
said,
“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”234
This immunity is given to a diplomat freely carry out their duties without
pressure and intervention of the receiving state. Besides immunity, a diplomat
also has the "inviolability" as stipulated in article 29 of the Vienna Convention
1961, "The person of a diplomatic agent shall be inviolable. He shall not liable to
any form of arrest and detention."235 This rule certainly makes a diplomat cannot
234 Article 31 of Vienna Convention 1961235 Article 29 of Vienna Convention 1961
78
be subject to any action of any power by the receiving state, including in this case
the detention and arrest. Both immunity and inviolability applies diplomat held
that the duty of a diplomat maintained independency of its duty without
intervention and interference during the running duties. However, the fact that
immunity from the jurisdiction of the receiving countries remain applied even if a
diplomat is not on his duty. In this case mainly the frequent violations of the
criminal acts committed by a diplomat is going on out from its duties and
functions as a diplomat.
Since the enactment of diplomatic immunity and privileges, then the
receiving is not entitled to prosecute a diplomat as stipulated in the Vienna
Convention 1961. The Vienna Convention is explicit that "without prejudice to
their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the receiving
state." At the same time, it is not correct that when a diplomat violates this duty
he loses his immunity. Such a reading is inconsistent with the immunities given,
which operate precisely in respect of such alleged violations, and which, in the
case of diplomatic agents, apply even to unofficial acts.236
Thus, on some occasions, diplomatic immunity leads to some unfortunate
results; protected diplomats have violated laws including those that would be
236 Rosalyn Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience, 79 Am. J. Int'l L. 641, p.649-650
79
violations at home as well of the receiving state. In 2001, a Russian diplomat to
Canada caused an automobile accident which killed one pedestrian and left
another severely injured. The diplomat was drunk at the time and had been
stopped for drunk driving twice in the past by Canadian police who were unable
to prosecute him. Canada requested a waiver of his immunity but was turned
down. Although Russia did not waive his immunity under Article 32, they did
agree to process him through their own system pursuant to the provision found in
Article 31.237 There was an actual case, in April of 2012 in Manila, a Panamanian
diplomat Erick Bairnals Shcks was accused of raping a 19-year old Filipino
woman, but was later released from detention because Shcks "enjoys protection
under the 1961 Vienna Convention".238 Other incidents have involved serious
crimes such as assault, drug traffic, kidnapping, rape, slavery and murder, and the
diplomatic agent can use their immunity to avoid the prosecution in the receiving
state.
Basically, the granting of immunity and inviolability is not to provide
benefits to the individual but to the work of a diplomat can be optimal. In fact,
diplomatic immunity and personal inviolability are an excuse for diplomats to
avoid prosecution in the receiving state. Receiving state in which the diplomat in
charge did not have any power to prosecute diplomats who have committed
237 The Jamestown Foundation, Russian Diplomat Faces Jail Term for Deadly Auto Accident, Mar. 22, 2002, http://jamestown.org/publications_ details.php?volume_id=25&issue_id=2223&article_id=19257. Accessed Jan 20, 2013, 9:39 pm
238 http://globalnation.inquirer.net/36575/panamanian-suspect-in-rape-of-filipina-leaves-philippines. Accessed Jan 20, 9:55 pm
80
crimes or abusing his immunity except by asking the sending state to waive his
immunity or declared persona non grata. As discussed in the previous chapter,
basically every state has the authority to enforce the rules of their own territory on
the basis of the theory of sovereignty. The relationship between sovereignty and
jurisdiction of the state is very close, enforcement jurisdiction is one form of the
sovereignty of a state itself. Ian Brownlie (1990) stated that the sovereignty of a
state will determine the form of the laws of the state while the law will determine
the condition of the rule.239 However, in this case the Vienna convention 1961
becomes the instrument to be the exception that makes the jurisdiction of a state
cannot be enforced against a foreign diplomat.
Principle of immunity and inviolability already applies for a long time and
become one of the basic rules of diplomatic practice. Moreover, since the rights
guaranteed in the 1961 Vienna Convention immunity and inviolability to the
diplomat has written legal basis. Important point of the implementation of the
immunity and inviolability is the need for "good faith" of a diplomat to respect
the laws and regulations in the receiving state. This is very important since the
immunity and inviolability of diplomats has made them immune from the
jurisdiction of the receiving state, whether the jurisdiction of criminal, civil, or
administrative. In this case, the receiving has no control at all toward foreign
diplomats who are when the diplomat violates law or the rules of their state. It can
239 Ian Brownlie, Principles of Public International Law, Clarendon Press, London, 1990, p.287
81
be concluded that the grant of diplomatic immunity and inviolability done by
Vienna Convention 1961 is too loose and does not sufficiently restrict a diplomat
not to abuse that right with a specific purpose. Stipulation on the right in the 1961
Vienna convention itself very clearly gives the diplomats maximum opportunity
to avoid legal obligations in the receiving state if they violate the law.
2. Inviolability of the bag
Basically, the Vienna Convention on Diplomatic Relations (“Vienna
Convention”) provides that documents or articles intended for diplomatic use be
considered diplomatic bags and thus may not be opened or detained by customs
officials at their point of entry.240 Unfortunately, diplomatic bags are frequently
used to smuggle such things as drugs, black market goods, and art. With the
recent rise in terrorism, the diplomatic bag has been used to smuggle terrorist
murder weapons in and out of states.241 For example, the machine guns used in a
raid on a Turkish synagogue, in which twenty-three people were killed, were
apparently smuggled into Turkey in diplomatic bags. The weapon used to kill the
first secretary of the Jordanian Embassy in Ankara was smuggled into Turkey in a
diplomatic bag from Syria.242 The rifle used to kill a British policewoman on the
240 Article 27 paragraph 3 of Vienna Convention 1961241 The bags of nations such as Libya “carry more guns than correspondence.” 132 Cong.
Rec. E1914 (daily ed. June 3, 1986) (statement of Rep. Bereuter) in Amy Zeidman, op.cit, p. 429242 A terrorist attack on a synagogue in Istanbul caused the death of 23 Turkish Jews. Two
men, yelling in Arabic, charged into the synagogue with machine guns and opened fire. Although Turkish police were unable to identify the terrorists, the Turkish press reported that there was evidence indicating that the machine guns were smuggled into Turkey in diplomatic bags. See in Amy Zeidman, op.cit
82
premises of the Libyan People's Bureau in London was smuggled out of the state
in a sealed diplomatic bag.243 In January 2012, Italy detected 40 kilograms of
cocaine smuggled in a diplomatic pouch from Ecuador, arresting five. Ecuador
insisted it had inspected the shipment for drugs at the foreign ministry before it
was sent to Milan.244
That, one aspect of the inviolability abuse is often done by the diplomat was
smuggling something beyond the basic function for the sake of diplomatic
missions. Inviolability of the diplomatic bag is very risky, the receiving cannot
guarantee that these rights are used appropriately by a diplomat or not. The setting
of the inviolability of the diplomatic bag set out in Paragraph 3 of Article 24
Vienna Convention 1961, which reads: "The diplomatic bag shall not be opened
or detained". The article has removed the right of the receiving to check the
diplomatic bag when entering their state. The inviolability of the bag given to
avoid the correspondence government of sending countries and diplomatic
missions or secret documents being leaked. Later, this principle is useful to
protect the diplomatic bag when not in the premises of the mission. The problem
is that often abuse inviolability of the diplomatic bag carried out when the
diplomatic bag first arrived at the airport because the bag is not allowed through
inspection. In some cases the diplomatic bag was found was used to smuggle
goods beyond the interests of diplomatic missions. This case in the spotlight
243 Ibid.244 http://www.mmrree.gob.ec/2012/com012.asp. Accessed January 22, 2013 12:21
83
because of this article does not accommodate the interests of the receiving state.
Receiving countries of course are entitled to the benefit of maintaining security on
its territory, with the inviolability owned by diplomatic bag and the vulnerability
that right to abused so it becomes not fair.
b. Inviolability of Premises of the Mission
The inviolability of the premises of the mission clearly stated in Article 22 of
Vienna Convention 1961 paragraph 1 which mentioned, “The premises of the
mission shall be inviolable. The agents of the receiving state may not enter them,
except with the consent of the head of the mission.”245 The principle of the
inviolability of diplomatic premises was universally accepted as customary rule of
international law long before the 1961 Vienna convention. One complicating
factor in providing protection to foreign missions is the principle of the
inviolability of premises, in other words, the premises of foreign missions are
treated as if they have territorial integrity and are part of the sending state.
Therefore, it cannot be occupied or be entered. In time, the term came to include
the idea of "ex-territoriality," in other words, the diplomatic missions' premises
were treated as an integral part of the sending state's territory, with its occupants
being subject to the laws of their state of origin.246
245 Article 22 paragraph 1 of Vienna Convention 1961246 http://www.thedailystar.net/newDesign/news-details.php?nid=120606, accessed
January 26, 2012, 8:03 pm
84
Since the protection of given by that article, the receiving state has no chance
to supervise the activity of the foreign diplomatic mission whether they run
function rightly or there are things that are considered suspicious. In case if the
receiving state finds something suspicious and considered to threaten the interests
of the receiving state, still they cannot enter the premises to do some search or
investigation without the consent of the head of mission. Any rights of the
authorities of a receiving state to search and seize on the premises of a diplomatic
mission are specifically excluded. If the receiving state does so without the
permission of the head of the mission, it would be treated as a foreign invasion
and a breach of international territoriality.247 The immunity of premises and its
property owned by diplomatic mission stated more in the Article 22 of Vienna
convention 1961 paragraph 2 which stated, “The premises of the mission, their
furnishings and other property thereon and the means of transport of the mission
shall be immune from search, requisition, attachment, or executions”.248 Actually,
this article is really strengthening the rules on the protection of the property of the
diplomatic mission, including in this case the premises of the mission.
The rule on inability to enter foreign premises of the mission is very risky. In
February 1973, the incident of Iraq Embassy in Islamabad, which was happened
in February 1973, is one the example case where that rule is a loophole to be
abused by the diplomat. When a container that was addressed to the Iraqi
247 Ibid.248 Article 22 of Vienna Convention 1961 paragraph 3
85
Embassy in Islamabad accidentally was damaged Pakistani customs officials
revealed that 59 crates which was filled with weapons, explosives materials and
ammunition that will be received by the Belouchistan Rebels. Then, It was proved
that the weapons were imported by diplomatic immunity and privileges in to
Pakistan which was then stored at the Embassy of Iraq. Therefore, Government of
Pakistan asked for permission to examine it. Although Iraq's Ambassador rejected
it, Pakistani police had been given orders to keep checking those crates with the
presence of Iraqi ambassadors and they found the weapons in storage.249
Essentially, building foreign representatives should not be used for activities
that are contrary to diplomatic duties. Where it is clearly stated in the Vienna
Convention of 1961 in particular article 41, paragraph 3 where diplomatic
buildings should not be used by diplomats in the subject that has nothing to do
with the function or mission of the diplomats in the receiving state.250 Therefore,
there is some suggestion that officials of the receiving state may enter the
premises of a foreign mission to record the extraordinary things or there are
strong indications that the premises of the mission have been used for purposes
249 Nizzar Fikkri, Tinjauan Yuridis terhadap Kekebalan Gedung Diplomatik (Studi Terhadap Kasus Kedutaan Besar Irak di Islamabad Februari 1973 , http://nizarfikkri.blogspot.com/2011/12/tinjauan-yuridis-terhadap-kekebalan.html, October 19, 2012
250 Article 41 paragraph 3 of Vienna Convention 1961, “The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”
86
beyond the interests of diplomatic missions. The problem is how authorities of the
receiving state to get into the building who allegedly had abused diplomatic
functions by diplomatic officials concerned to say it would interfere with the
security, peace and sovereignty of the receiving countries, because to get into the
building diplomatic receiving have to ask permission to diplomatic officials who
were in the building. It is very difficult for a device of the receiving state to gain
entry into the diplomatic building in order to prove that the right of misuse
diplomatic buildings.
It is been realized that granting absolute immunity to the premises of the
mission could harm the security and sovereignty of the receiving countries if there
is abuse of that right. Since the premises of the mission cannot be penetrated by
the receiving state apparatus as it gives an opportunity for the abuse of
inviolability. Again, in this case the protection provided by the receiving countries
Vienna convention is less able to accommodate the interests of the receiving state.
Inviolability of the premises of the mission granted by the Vienna Convention
1961 has been one aspect of the risky and shows the vulnerability of the settings
in the 1961 Vienna convention for the abused.
2. Vienna Convention is not enough to protect the receiving state.
1. Inability persona non grata and the waiver of immunity granted by
Vienna convention to protect the interest of receiving state
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Actually, there are no a lot of protection afforded by the Vienna Convention
1961 to protect the receiving state. In fact, Vienna convention governs more about
the obligations that must be met by the receiving to the foreign diplomats who are
in their territory. The lack of protection afforded by the Vienna Convention
1961on the receiving state that brought this instrument into the spotlight of the
international community. Along with the frequent occurrence of abuse of
diplomatic immunity and privileges of the role of the Vienna Convention 1961 as
the main instrument in the regulation of diplomatic relations increasingly
questionable. The Vienna convention 1961 deemed no longer able to
accommodate the interests of the receiving state.
Generally, the Vienna Convention does not provide enough protection to
minimize the abuse of diplomatic immunity is often done. Since diplomatic
immunity and privileges granted to diplomatic agents near absolute, it often
brings harm to the receiving state. However, the Vienna convention granted two
rights owned by the receiving if a diplomat doing misuse diplomatic immunity or
criminal territory of the receiving state, namely: Persona non grata and Waiver of
immunity.
a. Persona non grata
The Vienna convention 1961 granted for the receiving state the right to
dismiss the foreign diplomats who are in their territory if he is no longer
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welcome. This is a step that can be and often taken by the receiving when they are
disillusioned with either personal action foreign a diplomat or diplomatic mission
policy, which can be interpreted, reflects the will of the sending state. Persona
non grata indeed one of the rights that the receiving state to directly drive a
foreign diplomat to return to the sending state. Therefore, persona non grata is a
move that could indicate the sending state's bargaining position in diplomatic
relations when they are treated unfair. Implementation persona non grata is often
encountered when the receiving discover foreign diplomats violating diplomatic
immunity and privileges either directly or indirectly injure the dignity of the
sending state.
However, essentially in diplomatic relations known reciprocity principle. In
diplomatic practice often found that the declaration of persona non grata by the
receiving state makes sending countries offended. Whereas, states generally treat
the foreign diplomats same as what they want their diplomats to be treated by the
receiving state where the diplomat in charge. However, there are some flaws
contained in the persona non grata when used as the settlement would be the case
of abuse of Vienna convention 1961. First, since the application of the principle
of reciprocity it is persona non grata declaration could disturb the tranquility of
diplomatic relations between the countries. It is possible that the diplomatic
practice later the scene of retaliation, whereby each country will not accept the
declaration was persona non grata to their diplomat then instantly replies with the
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same treatment. This is of course contrary to the purpose of diplomatic relations
which aims to maintain good diplomatic relations and dignified. Second, since the
declaration of persona non grata the sending state fully devolved to the sending
state to prosecute the diplomat who had been expelled. In this case the question
arises of the receiving state to what punishment will be applied by the sending
state to diplomatic officials concerned, whether the punishment be given that
according to what he has done or not. So, there is no guarantee about the
prosecution toward diplomats who have been declared persona non grata by the
receiving country. Even the worst thing is when the diplomat who had been
convicted of criminal violations released and not prosecuted in their home
countries once declared persona non grata. Therefore, the sending state does not
have any control of this so this is felt not fair while diplomats have brought harm
to the receiving state. Third, the fact that often occur frequently encountered
where the sending state does not provide for compensation for damage that has
been caused by the diplomat for the victim and the receiving country. Of course,
this does not bring a good deterrent for foreign diplomats and sending countries
since the violations committed diplomats they would not have a significant impact
for sending countries. Of course, this aspect is cornering the receiving countries
as the most frequent victims. Furthermore, the notion that if a guilty diplomat
who prosecuted after being declared persona non grata then it would disrupt
diplomatic performance is not appropriate. That a diplomatic mission does not
only consist of a diplomat but contain a lot of personnel with their respective
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functions. Obviously in this case the task which is left by that diplomat can be
taken over by other members of the diplomatic mission of the country while
waiting for the policy of the sending state to apply for the replacement diplomats.
Thus, it makes no sense when the trial of a diplomat who has committed an
offense or crime will massively disrupt the performance of a diplomatic mission.
While this might have some influence on the diplomatic relations among the two
countries but it will ultimately bring in to the good and dignified relationship.
This is because mutual respect and preserve the rights of one another in a
diplomatic relations.
b. Waiver of Immunity
Vienna convention also provides a remedy to the receiving when a foreign
diplomat who served their state of crime or abuse of diplomatic immunity and the
immunity that the waiver of immunity.251 This right granted the receiving state to
request the waiver of immunity of their diplomat. Basically, when the immunity
of diplomatic agents have been waived by the sending state, their immunity will
immediately ceased and become the ordinary person without any forms of
immunities. Provisions in the Vienna Convention for the waiver of immunity by
the sending state provide a remedy on paper, but rarely occur in practice.252
251 Article 32 of Vienna Convention 1961252 Gregory L. Stangle, op.cit, p. 60
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Since the diplomatic immunity deal with the immunity of his government,
consequently, it is the authority of sending state to decide whether the immunity
of diplomatic agents should or should not be waived on a particular case. The
diplomat cannot waive his immunity without the permission of the government,
and cannot object if his government decides to waive his immunity. That is
actually the problem, since the crime or abuse of diplomatic immunity receiving
adverse certainly receiving state has an interest to prosecute diplomats. In fact, the
state's interest is limited to sending a request to the sending state for waiver of
immunity of its diplomatic agent. It can be concluded that in this case again the
receiving did not have any control since the final decision is in the hands of the
receiving state if diplomatic immunity agent will be released or not. Thus,
difficulties in the application of waiver of immunity under diplomatic relations
practice is the political will and good faith of the sending state to do waiver of
diplomatic immunity if it finds them to act in violation of state law or abused
receiving immunity and diplomatic immunity. In January 2001 there was a case
where Russian diplomats sued for the case of drunk and ended up with crashed
two people causing one dead and the other was injured. However, Canadian
government asked to the Russian authorities to do waiver of immunity of their
diplomat but they refused to do it. As the result, the Russian diplomat cannot be
trial since the he possessed the jurisdictional immunity. The Russian authorities
stated that they will investigate incident and the trial will be done under Russian
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law.253 Based on that case, it is clear that even the waiver of immunity is the right
given to the receiving state but it does not enough protect them since the final
decision of the waiver of immunity depends on the sending state. Ideally, a right
owned by a party to be followed by an obligation for others to fulfill. In fact, this
does not apply to the waiver of immunity because the right receiving country to
do waiver of immunity is not followed by the sending state obligation to grant it
because everything depends on the policy of sending countries. In conclusion,
despite the Vienna convention 1961 has provided the right to request a waiver of
immunity, it is still in the interest of the receiving state cannot optimally
accommodated.
Actually, two rights which are owned by the state as an effort on the receiving
in case of criminal acts by diplomats or misuse of diplomatic immunity and
privileges of not more than remedy the loss of what has happened and bring harm
to the receiving state. In this case, the Vienna Convention submit completely to
the diplomat for the functioning of the immunity and privileges granted in good
faith. It is clear that the Vienna Convention does not provide sufficient prevention
of abuse on absolute immunity they have given to the diplomats. That largely
focus on the Vienna convention is rights that must be met by the receiving state to
foreign diplomats in the region. On the other hand, stipulation of the rights held
by the receiving state is a bit limited. Of course this creates a situation that is
253 Russia rejects request to waive diplomatic immunity in Ottawa crash, CBC News, http://www.cbc.ca/news/canada/story/2001/01/28/diplomat010128.html, accessed Jan 5th, 2013, 7:59 am
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unfair since diplomats have such absolute freedom while receiving state cannot do
much for damage resulting from misuse of their immunity and privilege of
diplomatic immunity.
Basically, the tendency for a state to enter into international relation is to
promote and protect the interests of its state. Similarly, diplomatic relations, in
addition to achieving a personal goal of a state of diplomatic relations is a mutual
relationship to strengthen friendship among nations and establishing cooperation
mutually beneficial to each other. In order to achieve a mutually beneficial course
requires a basic rule underlying relationship to each other so that the rights are
protected. Thus the 1961 Vienna convention as a rule for the basis of diplomatic
arrangements would have to be able to accommodate the interests of each party in
a diplomatic relationship. Intention of accommodating each party is to provide
fair rules in the sense of focusing to one side but it gives the right balance.
However, in this case the 1961 Vienna convention less able to accommodate the
interests of the receiving state as the party is in fact often impaired by the Vienna
Convention 1961 is still vulnerable to abuse by diplomats.
Hence, those reason makes amendments to the Vienna convention discourse
sticking out since the protection afforded by the Vienna convention persona non
grata and the waiver of immunity did not protect the interests of the receiving
state. Persona non grata and the waiver of immunity is nothing more than an
attempt to cure a problem of abuse of Vienna convention itself. Additionally,
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persona non grata and immunity waiver does contain risks in its application. As
the persona non grata of course can lead in to a disruption of diplomatic relations
among state since the diplomatic relations known the principles of reciprocity
Furthermore, although a diplomat has been declared persona non grata, the
sending state is not necessarily a guarantee that the diplomat who has committed
an offense and bring harm to the receiving as it should be brought to justice in
sending countries.. Similarly, the waiver of immunity that in the end the right is
not more as apparent authority because it ultimately keep sending state that are
entitled to waive of his diplomatic immunity. Actually, what the demands of the
international community today is a preventive measure that can reduce or
minimize the abuse of diplomatic immunity and privileges that can harm the
receiving countries and the impact on the disruption of diplomatic relations
between countries.
B. Urgency to amend as the result of modern development of
Diplomatic relation
Over the past 50 years over 1961 Vienna convention has become the main
basis regulating the practice of diplomatic relations. In recent decades, the Vienna
convention 1961 reaping a lot of criticism because it is no longer able to respond
to the needs of diplomatic relations that increasingly complex. Furthermore, the
discourse of an amendment to the 1961 Vienna convention began loudly voiced
since the convention was made 50 years ago so it makes sense that less can work
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best when implemented for now. Whereas, Vienna convention in 1961 was the
result of a treaty with multilateral treaties that are increasingly felt lacked and
needed an improvement.
Changing of era has brought development and progress, many countries are
beginning to apply the principles of democracy. Moreover the issue of the
protection of human rights increasingly received the attention. Some examples of
violations related to abuse of diplomatic immunity, such as murder, or treatment
course should not be considered to violate the rights of others. Since diplomats
have immunity from the jurisdiction of the receiving state then it is contradictory
to the efforts of the international community who are aggressively campaigning
for human rights protection.
Nowadays, the development and rapid progress in all fields also have an
influence on the existence of immunity and inviolability of the diplomatic
convention set in Vienna 1961. For example, technological advances made in
telecommunications systems lead role and function of diplomacy has been a lot of
shifting. In this case, sometimes the diplomat does not need to perform their
functions directly because of modern communication systems.254 Telephones, fax
machines and email have made instantaneous communication a daily
occurrence.255 Then, airplanes, railroads and highway networks make personal 254 Syahmin AK, Hukum Diplomatik Suatu Pengantar, op.cit, p.15255 James S. Parkhill, Diplomacy in The Modern World: A Reconsideration of The Bases
of Diplomatic Immunity in The Era of High-Tech Communications, 21 Hastings Int'l & Comp. L. Rev. 565, p. 578
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international visits a relatively safe and simple prospect. The diplomat's function
is facilitated by the new technology as well it is much different from when Vienna
convention was first enacted in 1961. So that, there must be a reconsideration of
diplomatic immunity and inviolability which given to the diplomat massively, it is
will correlate with the examination of what diplomats do in the modern world.256
The urgency of the Vienna Convention 1961 amendment increasingly
necessary since the international community demands to create a primary rule of
law capable of responding to changes in diplomatic era. Although in this case not
all the rules in the Vienna convention 1961 need to be changed, in some fairly
important article needs to be adapted to the needs and functions concretely and
current condition. For example, in the case of personal immunity and
inviolability, the stipulation of this aspect needs to be re-examined given the
current state of the preparation of Vienna convention 1961 with the condition
right now is much different. At present, the role of advances telecommunications
and often heads of state have direct high levels communications with other
countries which have had an impact on the role of diplomat. Although in fact
there are several aspects that have not changed much of the influence of
technology such as a duty to protect citizens of the sending country in the
receiving country, but generally the diplomatic duties is made easier by the
advancement of technology. That’s why the granting immunity and inviolability
256 Ibid.
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of the diplomats must be adapted to real functions of them currently which are
fairly shifted than when the first Vienna convention 1961 was enacted.
At the end, the decision to return to the States Parties to Vienna Convention
1961 follow-up to an unqualified Vienna Convention 1961 to respond to the rapid
development and advancement of the practice of diplomatic relations. Increasing
complexity of diplomatic relations and the need to better protect the interests of
the receiving state in diplomatic relations increasingly support the need for
change in some rules in the Vienna convention. The number of violations and the
use of diplomatic immunity and privileges have brought many losses and no
longer fit the original purpose of holding diplomatic relations. Awareness of the
international community of the importance of improving the rules contained in the
Vienna Convention reinforced the discourse of amendment that instrument.
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CHAPTER IV
CONCLUSION AND RECOMMENDATION
A. Conclusion
Situations where the Vienna Convention 1961 to be in the spotlight is cannot
be separated from the number of violations and abuse of some rules and privileges
set forth in the Vienna convention 1961. Basically, the Vienna Convention 1961
has provided two attempts to do by the receiving if there is misuse of diplomatic
immunity and privileges or criminal acts committed in the receiving state, namely
Persona non grata and the waiver of immunity. However, two attempts were not
more than a remedy what has happened and bring harm to the receiving state. It
becomes the serious issue behind the emergence of the discourse of Vienna
Convention 1961 amendment. Actually, there are several compelling reasons
underlying the need for the amendment of some aspects in the 1961 Vienna
Convention relating to protection of the receiving state, including:
a. The need for improvements to respond to the development of diplomatic
practice which increasingly complex.
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b. Some of the rules of the Vienna convention, especially regarding
diplomatic immunity and privileges are very vulnerable to misuse. It needs to be
revised in order to give more protection the receiving state.
c. Persona non grata and Waiver of immunity is not sufficient to protect the
interests of the receiving state.
c. The modern development has brought a shift in the function of diplomats in
diplomatic relations itself.
d. Global issues concerning the protection of human rights made diplomatic
immunity under the spotlight of the international community.
Thus in conclusion, there needs to be change in order to improve diplomatic
relations regulation in the 1961 Vienna convention so that it can respond to the
conditions of the present. Since any regulations or laws having the nature
responsive to change, the opportunity to amend the Vienna Convention 1961 is
widely open.
B. Recommendation
From those facts shown, it is important to improve the Vienna convention
1961 through amendment. There are some key aspects in the regulation contained
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in the 1961 Vienna Convention that require attention as the most commonly
abused and not in accordance with the original purpose, including:
a. Personal Inviolability and Immunity of a diplomat
b. Inviolability of the Bag of Diplomat
c. Inviolability of the Premises of the Mission
An amendment to refine the rules in some aspects is expected to minimize the
chances of abuse. It would be more able to accommodate the interests of the
receiving country which in practice often aggrieved over the vulnerability of the
articles in several aspects of the above. Then, the right held by the receiving state
during which only consist of Persona non grata and the waiver of immunity,
which is not quite effective, should also be enhanced. Especially regarding the
follow-up if there is abuse of diplomatic immunity or privilege that must be
followed by the sending state's obligation to prosecute the diplomat appropriate
with what he had done. Imposes obligations on the sending state must also give
the compensation to the receiving state or to the party who has been harmed for
the actions of their diplomats.
However, the amendment was not an easy thing to do and requires
consideration and preparation. Therefore, the proposal for the preparation of the
protocol is that it can be an alternative in this case. That protocol can add some
important notes or the terms and conditions of granting diplomatic immunity and
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privileges so as to minimize the possibility to be misused. Although in the end the
diplomatic immunity or privilege still exist is necessary to ensure that this aspect
is a better way to ensure diplomatic independence without sacrificing public
safety.
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