Theories and principles of diplomatic immunity

Abstract

Diplomatic immunity is a principle of International Law that provides foreign diplomats with protection from legal action in the country in which they work, so that they can perform their duties with freedom, independence, and security. The rules on diplomatic privileges and immunities are set out in the 1961 Vienna Convention on Diplomatic Relations, and for consular personnel - in the 1963 Vienna Convention on Consular Relations. Under the Vienna Conventions, all persons entitled to immunity have the obligation to respect the laws and regulations of the host country. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. When speaking of the legal basis of diplomatic immunity, three theories are usually mentioned: the “theory of representative character”; the “theory of extraterritoriality”; and the “theory of functional necessity”. There are limits to diplomatic immunity. If a person with immunity commits a crime in the host country, that country may demand a waiver of the supposed offender’s immunity so that person could be tried by court. But if the immunity is not waived, the host country may order the exile of the offender from the country. A diplomat may be declared persona non grata by the receiving State. Declaring foreign officials non acceptable is the worst the host country can do. The purpose of this paper is to explore the importance of diplomatic immunity, as well as to look into the extent to which these privileges can be invoked; the obligation of the diplomat who has transgressed the laws of the receiving State and any actions that should be taken by the diplomat’s country.