Diplomats are the persons who reside in foreign countries as the representative of the country by

whom they are despatched. They act as a link between the country who despatch them and by whom
they are accredited. Therefore, they perform the act of diplomacy, which in International Law means
by which the States maintain or establish mutual relations and carry out their legal or political
transactions based on their foreign policies.

Act of diplomacy may be performed by the head of State, Government, Minister of Foreign Relations
or by and by diplomatic agents.

Law on Diplomatic agents

The practice of sending and receiving diplomatic agents is followed by states since ancient time.
In ancient times ‘Doots’ were sent from one Rajya to another. However, in ancient time the
practice was not uniform nor they were sent permanently to another Rajya. The practice of
permanently sending the diplomatic agents started from the seventeenth century.

By the second half of the seventeenth-century permanent legation became a general institution
and certain rights and duties almost identical in nature were provided to the diplomats.

The Congress of Vienna of 1815 for the first time codified customary rules of International Law
on ranks of diplomatic representatives. The institution of diplomacy continued to develop after
1815 and after the establishment of the United Nations, the task for codifying for the law relating
to diplomatic agents was given to the International Law Commission.

The Commission prepared the draft article and submitted them to General Assembly. The
Assembly convened a conference in 1961 and adopted Vienna Convention on Diplomatic
relations.

Classification of Diplomatic agents

diplomatic agents have been classified according to their status and functions. The first classification
of diplomatic agent was made in the Congress of Vienna in- 1815 under which diplomatic agents were
classified under the following categories:-
1.Ambassadors and Legates:-These are the first category of diplomatic agents and are the complete
representatives of the sovereignty states. Their designation is Ambassadors or Permanent
Representatives of their respective countries of U.N. They are appointed by POP.
2.Ministers Pleni-potentiary and Envoys extraordinary:- Are the diplomatic agents of second category
and as compared to the diplomatic agents of the first category. They enjoy less privileges and
immunities.
3.Charge-d affairs: - They are the diplomatic agents of the last category. The main reason for this is
that they are not appointed by the head of State but are appointed by the Foreign Minister of the State.
Their status is considered below the Minister Resident.
4. Minister Resident: - In the congress of Aix-la-Chappele-1818, this category was added at category
No.3, but it was again dropped by 1961 Convention
Functions of Diplomatic Agents
Functions of diplomatic agents are determined by the rules and regulations of International Law and
municipal law (law of country) of the States. Article 3(1) of the Vienna Convention of Diplomatic
Relations, 1961 lays down various functions of diplomatic agents which are as follows:

1. Representation: Diplomatic agents represent the policies and beliefs of State by which they
are dispatched to the state where they are accredited. The function of representation is
primarily entrusted to the head of the mission. Oppenheim, in his book, says that “diplomats
are the mouthpiece of the head of his own State and the Foreign Minister for communication
to be made to State where they are dispatched.
2. Protection: Diplomatic agents protect the rights and interests of sending State and also of
nationals, within the limits allowed by the municipal law of respective State. The limit of
diplomats is not prescribed by the International Law but by the municipal law of the State.
3. Negotiation: Negotiation is the most important function which is performed by the
diplomatic agents. Generally, the head of the diplomatic mission negotiates on various aspects
of on behalf of the sending State with the State to which they are accredited in order to
maintain a friendly relationship. Diplomatic agents are required to communicate the outcome
of the negotiation to sending State from time to time,
4. Observation: Diplomatic agents are required to observe those events and happenings which
take place or which may take place in the State where they are accredited, especially those
which may affect the interests of the State by which they are sent. After making observations
of the events, they are required to make periodical reports to the government of sending State.
5. Promotion of Friendly Relations: Diplomats are required to promote friendly relations
between the sending State and the receiving State. They also have the function to develop the
social, cultural and economic relations between the two States.
6. Consular Functions: Vienna Convention lays down that diplomatic agents can also perform
consular functions which may be allotted to them from time to time such as death, birth and
marriage registrations of the subjects of home State, issue of passports etc.

Diplomatic immunities and privileges

International Law confers diplomatic immunity on diplomats from the exercise of jurisdiction by
receiving States. The principles governing diplomatic immunities and privileges are among the most
ancient and universally recognised principles of International Law.

Basis of Diplomatic immunity and privileges

Different international jurists have divergent views as to the basis for giving immunities to diplomatic
agents. Their views led to the emergence of three important theories which are as follows:

1. Extra-territorial Theory: This theory is also known as the fictional theory. According to
this theory, diplomatic agents are considered not be within the territorial jurisdiction of the
State to which they are accredited, but to all times within that of the sending State. Extra-
territorially of diplomatic agents means that though diplomats physically present upon the soil
of the country to which they are accredited but they remain for all purposes on the soil to
which they represent.
 2. Representational Theory: According to this theory, diplomatic agents are regarded as
personal representative of the sovereign of the sending State. Therefore, they are given the
same degree of privileges and rights which are given to the head of sending State.
3. Functional Theory: According to this theory, diplomatic agents are given immunities
because of the nature of their functions. The duties which the diplomats perform are far from
easy. In other words, their actions of duties are of typical or some special nature. They are
allowed immunities from the legal and other limitations of the State to which they are
accredited to effectively perform the tasks they are allotted.

Privileges and immunities of a Diplomat

Vienna Convention on Diplomatic Relations of 1961 lays down the different rights and privileges
which are granted to diplomatic agents. They are as follows:

1. Inviolability of Diplomatic Agents: Diplomatic agents are inviolable is a principle which is

recognized in International Law much before the adoption of the Convention of 1961. Article
29 of the Vienna Convention lays down that “the person of a diplomatic agent shall be
inviolable”. He shall not be liable to any form of arrest or detention, and the receiving State
shall treat him with all due respect and should take all appropriate to prevent an attack on his
personal freedom and dignity.
2. The Government of receiving State by virtue of Article 29 is under a duty to conduct to
abstain from any form of conduct which is injurious to the diplomatic agents and also under a
duty to prevent such injurious conduct if attempted by another.
This does not mean that the immunity given to the diplomats is absolute. The receiving State has the
power to arrest or detain the diplomatic agent in exceptional cases For instance, a drunken diplomat
with a loaded gun in a public place can be arrested or if a diplomatic agent commits an act of violence
which disturb the order and peace of receiving State in such a manner that it becomes necessary to put
him under restraint for the purpose of preventing similar acts.

Inviolability of Staff of Mission

In addition to the head of mission, immunities are also given to the staff of the mission, which is
defined in article 1 of the Vienna Convention. Para 2 of Article 37 of Vienna Convention lays down
that members of the administrative and technical staff shall enjoy the immunities and privileges as
mentioned from Article 29 to Article 35 if they are not nationals or are not permanent residents of
receiving State.
Thus, administrative and technical staff only enjoys personal inviolability ARTICLE 29i.e The person
of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The
receiving State shall treat him with due respect and shall take all appropriate steps to prevent any
attack on his person, freedom or dignity.
inviolability of residence article 30[1] The private residence of a diplomatic agent shall enjoy the
same inviolability and protection as the premises of the mission
immunity from criminal jurisdiction article 31[1], 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
exemption from certain taxes and duties article 34 A diplomatic agent shall be exempt from all dues
and taxes, personal or real, national, regional or municipal, except:
(a) Indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) Dues and taxes on 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;
(c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of
paragraph 4 of article 39
; (d) Dues and taxes on private income having its source in the receiving State and capital taxes on
investments made in commercial undertakings in the receiving State;
(e) Charges levied for specific services rendered;
(f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable
property, subject to the provisions of article 23.
Para 3 of Article 37 of the Vienna Convention provides immunities to the service staff if they are not
the nationals or permanent resident of receiving State. It provides immunity to the acts performed in
course of their duties, exemption from taxes and duties on emoluments received and exemptions on
social security provisions.

Inviolability of family members

Vienna Convention of Diplomatic Relations in its Article 37 Para 1 states that “immunities and
privileges to the family members of diplomatic the diplomatic agents having diplomatic ranks may be
given, if firstly they are not nationals or permanent resident of receiving State and secondly, so long
as they form the part of household, i.e. they live under one roof”.

So if the son of a diplomat is studying in any University of receiving State and just come on weekends
to meet his parents, then he will not be provided with any immunity as he is not forming the part of
the household.

1. Inviolability of premise: Article 21 of the Vienna Convention lays down that, “a permanent
diplomatic mission needs premises to operate and receiving State must help the sending State
to obtain the premises form mission”. The sending State has the right to use its flag and
emblem on the premises (Article 20). Article 22 of the Vienna Convention of Diplomatic
Relations stipulates the customary rule of International Law by stating that “the premises of
the mission shall be inviolable”. Further Article 30 also provides that “private residence of a
diplomatic agent shall also enjoy inviolability”. The agents, police or any officer of the
receiving State are not allowed to enter the premises without the consent of the head of
mission. However, the inviolability of premises is also not absolute it can be compromised in
certain exceptions. Article 41 of the Convention itself lays down that “premises of the mission
should not be used in any manner as incompatible with functions of mission or by rules of
general International Law”. So, if the inviolability of premises is abused then the receiving
State should not bear it passively and can take all the necessary steps to stop the actions of
agents.
2. Inviolability from being a witness: Diplomatic agents are completely immune from being a
witness in any civil or criminal or administrative court of State to which they are accredited.
 He is also immune from giving evidence before the Commissioner. However, they may
appear before any court by waiving of their immunity. Article 31(2) lays down that “diplomat
agent is not obliged to give evidence as a witness”.
3. Immunity from taxes and customs duties: Article 34 of Vienna Convention lays down that,
“diplomatic agents shall be exempted from all dues and taxes, personal or real, national,
municipal or regional”. Initially, before the convention, this right was given to the agents due
to Courtesy but Convention has incorporated it with more precise definition.
4. Immunity from inspection of Personal Baggage: The bag used by the diplomatic agents for
sending articles, letters or documents to the sending states or any other missions of its State to
abroad be known as a diplomatic bag. Para 3 of Article 27 of the Vienna Convention lays
down that “diplomatic bag should not be opened or detained’. But according to Article 36
Para 2, this right is not absolute. It lays down that, “general practice of exempting the
diplomats’ personal baggage from a custom inspection is qualified by the provision that
inspection can be conducted in presence of a diplomatic agent or his agent if there are serious
grounds for suspecting that the article is not for official use”.
5. Freedom of Communication: Diplomatic agents are free to communicate any information
for official purposes to the State by which they are accredited. Article 27 of the Vienna
Convention lays down that “the freedom of communication also involves the use of code
messages and couriers”.
6. Freedom of movement and travel: Article 26 of Vienna Convention empowers diplomatic
agents to move and travel in the territory of receiving State but subject to laws and regulations
of International Law and rules made by receiving State concerning security zone.
7. Right to worship: Under Article 3(1) of Vienna Convention diplomatic agents have the right
to worship any religion they like within the mission premises or residence. But they cannot
invite any nationals of the receiving State to take part in the worship and have no right to
preach their religion in receiving State.
8. Immunity from the Local Jurisdiction: Diplomatic agents enjoy immunity from the
jurisdiction of local courts. The immunity extends both to criminal as well as civil
jurisdiction.

Article 31, paragraph 1 of the Vienna Convention provides that a diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State. Thus, receiving State has no right to
prosecute and punish diplomatic agents. Immunity of diplomatic agents from civil and administrative
jurisdiction also a well- recognized principle of International Law.

Conclusion
Diplomats are provided immunity to effectively perform their function because of the typical nature
of functions and diplomat being the representative of the head of State. All the rights and immunities
provided to the diplomats are not absolute they can be compromised within certain exceptions. At
present, the institution of diplomatic representatives has become the principal machinery by which
intercourse between States is conducted.