Diplomatic Agents (DAs)

A diplomat is a person who represents one country in another country. Concept of DR

developed from times of doot messenger who were sent from one rajya to another rajya.
However, neither the practice was uniform nor they were sent permanently. The practice of
sending DAs permanently started in 17th century. Later they were given certain rights, duties
and privileges by the States. This led to the development of some rules of CIL.
Subsequent to the formation of UN, the task for codifying the law relating to DAs was given
to International Law Commission. The Commission prepared the draft Articles and submitted
them to the General Assembly of UN. The Assembly convened a conference at Vienna in
1961 wherein the Conference adopted a convention on April 18 1961 by the name of Vienna
Convention on Diplomatic relations which finally came into force on April 24, 1964.

Need of DAs
DAs are needed for the purpose of protecting the interest of states. Presently, laws, rules &
regulations relating to DRs are discussed on the basis of Vienna Convention on Diplomatic
Relations, 1961. Those matters in respect of which the Convention did not make any express
provisions; they still are governed by the rules of CIL.

Classification of DAs
As per the convention DRs have been classified as:
a) Ambassador: Ambassadors are considered to be the personal representatives of the
Heads of their States and therefore enjoy special honours. The can claim the title of
Excellency. When they are sent by Holy Sea, they are called Papal Legates or Papal
Nuncios. Ambassadors sent within the Commonwealth countries are called High
Commissioners.
Normally, Ambassadors are appointed with the consent of the receiving State. They
should therefore be persona grata which means acceptable persons. When the
ambassadors arrive in the receiving state they present a sealed letter of credence which is
given to them by the Head of the sending state.
b) Ministers Plenipotentiary: They are not considered to be the personal representatives of
the Heads of their States and therefore do not enjoy special honours which are normally
enjoyed by the ambassadors. They do not receive the title of Excellency. If they are
given, it is because of courtesy and not because of right. These are the representative of the
State or Govt.

c) Charge D Affairs: The representative of the foreign ministers i.e. they are accredited not
by the State but by ht Foreign Office to the Foreign Office. They therefore on arrival
present a letter of credence to the Minister of Foreign Affairs. They do not enjoy honours
and titles which are given to other categories of diplomatic representatives. They may be
appointed either permanently or temporarily.

Need/Significance of Classification
The Classification under the Convention of 1961 has been made according to rights and
privileges that are given to DAs and the functions they perform. For e.g.

Ambassador - entering into treaties.

Minister's pleny potentiary- Granting recognition.

Difference between Ambassadors, Ministers Plenipotentiary and Charge

D Affairs
a) On the basis of functions .
b) Only ambassador can have the title of 'his Excellency'.
c) On the basis of appointment which is done by issuance of letter of credence which is given

by
The President, in case of Ambassador
The Government in case of Minister's Plenipotentiary
the foreign minister in case of Charge D' Affairs

In all other matters practically no difference as per Convention.

Method of appointment of DA
Whenever any DA is appointed, a letter of credence is issued by the concerned authority
stating the conditions and terms of appointment.
This letter is to be carried by the DA to the receiving state and is to be produced there.
On production of the letter the receiving state should declare him as 'persona grata' which
literally means an acceptable person. Once declared as 'persona grata' the process of
appointment is over. However, if declared persona non grata which literally means
'unacceptable person' then the appointment is rendered ineffective.
The convention does not provide for any particular educational qualifications in order for a
person to become a DA but in this matter every country follows its own procedures.
In India, there is a legislation which provides that only an Indian Foreign Service (IFS) holder
can become a DA.

Terminology
High commissioner- a term used in between commonwealth countries to describe an
ambassador.
Papal Nuncio/Papal Legates- a term to denote an ambassador from the Vatican city (holy
sea).
Envoy-A term synonymous to minister's plenipotentiary.
Sending State- The state that sends the DA as its representative.
Receiving State- The state which receives the DA.

Functions of DAs
Functions of DAs are determined by the rules of International Law and the municipal laws of
States. Vienna Convention lays down various functions of DAs which are as follows:
1) Representation- DAs represent the sending State in the State where they are accredited.
Representation is entrusted primarily to the Head of the Mission, but other DAs may also
participate at the appropriate level.
2) Protection- DAs protect the interest of the sending State and its nationals, within the
limits permitted by ML. the limit is prescribed not by the IL but by the ML and regulations of
the sending state within which an envoy affords protection.
3) Negotiation- Negotiation is the most important function that the DA performs. They
negotiate on the various aspects on behalf of the sending state with the receiving state in
order to maintain friendly relations between the two. They are required to communicate the
outcome of the negotiations to the sending state from time to time.
4) Observation- DAs are required to observe those happenings and events which may take
place in the receiving state specially those which may have effect in their sending state, after
making observation they are required to make periodical reports as well as special reports
thereon to the government of sending state.
5) Promotion of Friendly Relations- DAs are required to promote friendly relation between
the sending and receiving States they also have function to develop economic, social and
cultural relations between the 2 states.

Rights Privileges, & Immunities of DAs

Need or basis for giving diplomatic immunity.
3 divergent views thus 3 theories.
1) Extra Territoriality theory- According to this theory DAs are deemed not to be within
the territorial jurisdiction of the receiving State but to be at all times within that of the
sending state. This theory is also called as fictional theory as extra territoriality is based
merely on a fiction.
2) Theory of Representation- Every DA is regarded as agent or the personal representative
of the sovereigns of the Sending state. They therefore are given the same degree of privileges
which are given to the sovereign heads.
3) Functional Theory- This theory lays down that the DAs are given immunities and
privileges because of the nature of their functions. The duties which the DAs are required to
perform are in many cases far from easy. In other words their functions are of special, or to
say of typical nature. They are allowed immunities from the legal and other processes of the
receiving state so that they may perform their functions freely.
All these theories are correct in their own, but the 1st theory was prevalent only at the time of
development of IL.
With subsequent development of IL the 2nd theory came into picture.
When IL developed after 21st century especially after UN, the 3rd theory got importance.

Privileges/immunities of DAs

Inviolability of DAs- meaning that a DA can't be arrested or detained by the receiving state
under any circumstances. This right is provided by the Vienna Convention, under Article 29,
as an absolute right and does not accept any exception under any circumstances.
Even though the Vienna convention doesn't recognise any exception but there are some
reasonable exceptions evolved and followed by practice in the international community. For
instance, a drunken diplomat with a loaded gun in a public lace may be arrested; if DA
commits an act of violence which disturbs the internal order of receiving state; if DA
conspires against the receiving state.

Whether inviolability of person include family members or staff of the DA?

Vienna Convention under Article 37 talks about immunity to staff. It classifies diplomatic
staff into 3 heads:

Administrative staff
Technical staff
Services staff

Administrative & Technical staff is entitled to get immunities and privileges similar to that of
the DA. But Services staff as in the people who do domestic work e.g. Driver, Cook etc.,
generally these people are not given immunity, but under if they are nationals of the sending
state then they have a claim of immunities & privileges similar to that of the DA.
Family Members:
General rule is that if the family members fulfil certain conditions as per the convention:

The family member should reside under the same roof as that of the DA.
They should be a national of the sending state.
Their name should be included in the list provided by the DA.

The rationale behind these conditions is to ensure that the near ones of the DA are not
affected. The convention recognizes only 2 type of family relation i.e. by blood & by
marriage.
Inviolability of Diplomatic premises- Government of the receiving state cannot apply any
jurisdiction over the diplomatic premises that include the official vehicles. A permanent
diplomatic mission needs premises from which to operate and the receiving state must help
the sending state obtain premises for the mission. There is right to use the flag and emblem of
the sending state on the premises of the mission thus clearly identifying them. further Article
22 of Vienna Convention stipulates the CIL principle that the premises of the mission shall be
inviolable. The same inviolability is provided to the private residence of the DA.
Freedom from inspection of personal baggage - According to Art. 27, the personal baggage
of a DA shall not be checked, not even under any exceptional circumstances. But in practice
the International Community follows normal security checking method, without opening or
detaining the baggage.
Freedom of Communication- Convention says that sufficient communication mechanism
should be provided to DAs. Article 27 of the Vienna Convention lays down that the freedom
of communication includes the use of couriers and code messages.

Right to Worship- Article 3 of Vienna Convention lays down that the DAs have a right to
worship any religion they like within their premises but they cannot invite the nationals of the
receiving State to take part in the worship.
Immunity from being a witness or giving evidence- Article. 31 provides that DAs are not
to be compelled to attend any court as witness. The rationale being that the evidence may
affect the relation between sending & receiving state.
Immunity from customs tax & other dues- Article 34 provides this, and according to it: the
salary of the DA is non-taxable. However, indirect taxes can be levied upon DAs, also custom
is levied while importing personal items.
Freedom of travel or movement- Article 26 of Vienna Convention provides that DAs are
free to move and travel in the territory of the receiving State but this is subject to laws made
by receiving State concerning prohibited security zone.
Immunity from 3rd Party state- Article 40 says that any state other than sending or
receiving state is obligated to provide immunity to the DA only during transit for official
purposes. But there isnt any restriction; if the country wants it can provide immunity for
personal purpose too.
Immunity from Military Obligations- Article 35 says that the DA and his family members
are exempt from local and military obligations of the receiving state such as those connected
with the requisitioning military contributions.
Immunities from Local Jurisdiction: DAs enjoy immunity from the jurisdiction of
receiving states local courts. The immunity extends to criminal jurisdiction as well as to civil
and administrative jurisdiction.

Waiver of Immunities
A DA can waive off his rights & immunities, but it should be done in an express manner. Art.
32 provides for waiver. Waiver is the Individual choice of DA therefore, the sending state
cannot object, but what it can do is withdraw the DA from his post.

Termination of Diplomatic Mission

Recall by the sending state: recalling a DA has been a power vested in the sending state,
when a DA is recalled by the sending state, generally the mission comes to an end. Recalling
of DA is utilised to show sending states displeasure at the personal misbehaviour of thr DA
or to express policy differences with the receving state. It also occurs normally when the
relationship between the 2 states is strained.

On request of the receiving state: the head of the diplomatic mission may be terminated
when a request is made by the receiving state in this regard. It takes palce when the relations
between the 2 states become unfriendly or because of the misconduct on the DAs part. Eg.
Mansoor Gilani, Pak ambassador in India, in 03 India got suspicious that he was indirectly
supporting terrorists, therefore India asked Pak to withdraw him.
Declaration of Persona Non Grata: the head of the mission may be terminated if the DA has
been declared as persona non grata. It is completely the discretion of the receiving state in
declaring the DA as persona non grata, this declaration cannot be challenged as it is the
sovereign power of the state.
Expiration of the Time: if a letter of credence is given to any envoy for a limited period, his
mission terminates at the expiration of the period.
On completion of the mission:
By Notification: the sending state may terminate the head of the mission by notification if
the DAs function has come to an end. However, it is not necessary that the other state has to
reciprocate and withdraw its DA. Article 43 of the Vienna Convention provides for this way
of termination
Under IL if a person stays in a place for a time long enough, he can get the nationality of that
state, it is known as the rule of naturalization. But it doesnt apply to DAs because they didnt
live there in their personal capacity.

Consular Relations
Consuls are agents of the State residing abroad for a variety of purposes. However, they are
sent mainly to protect the commercial and navigational interests of the sending state in
another country.
its Commercial- connected to trade & business.
Navigational- air, road or water transport.
In fact, the consular institution developed primarily as a means of protecting trade. But at
present they are sent for other purposes as well.
Under CIL there is no law regarding appointment, immunity, privileges of Consuls, therefore,
Vienna Convention on Consular Relations adopted by UN which came into force on March
19, 1967 presently deals with appointment, powers, functions, immunities & privileges of
Consuls.

Classification of COnsuls
The Convention classifies Consuls into 4 heads:
1) Consul General: Head of the Consular office.
2) Consul(s): 2nd in position in the Consular mission and are appointed by the Consul
General.
3) Vice Consul: 3rd in rank and appointed by Consul General.
4) Consul Agent: appointed by Consul General or Consul.
Though there is this hierarchy and classification of the Consuls, but there is no practical
difference.

Functions of Consuls
Article 5 of the Vienna Convention lays down various functions of the Consuls. Important
among them are as follows:
a) Protection of commercial, industrial & navigational interests of the sending state and
its nationals.

b) Furtherance of the development of commercial, economic, cultural and scientific

relations between the two states.
c) To ascertain conditions and development of commercial, economic, cultural and
scientific conditions of the receiving state.
d) Issuance of visa to the nationals of receiving state & passport to the nationals of
sending state.
e) Provide help and assistance to their nationals in testify signatures, registration of
marriage, birth and death,.
f) Safeguard the interests of minors and other persons of their state lacking full capacity.
g) Exercise the right of supervision in respect of vessels and aircrafts of the sending sate.

Rights & Privileges

Same as DAs

Difference between DA & Consul

a) On the basis of Functions:
DA- Political
Consul- Commercial & Navigational
b) On the basis of Letter of Appointment:
DA- Letter of Credence
Consul- Letter of Exe Quatur
c) On the basis of Titles accorded:
DA- His Excellency.
Consul- not eligible to be called as His Excellency