The document discusses the legal foundations and evolution of diplomatic immunities, primarily through the lens of the 1961 Vienna Convention on Diplomatic Relations (VCDR). It outlines key doctrines such as functionality and representative character theory, the codification process leading to the VCDR, and significant provisions regarding inviolability, diplomatic immunity, and communication rights. The text emphasizes that diplomats must adhere to local laws while also highlighting historical incidents that test these immunities.

2. ABUSES OF DIPLOMATIC IMMUNITIES?
M I C H A E L
C O R B I N
2 0 1 4
J U L I A N A S S A N G E
2 0 1 2
Y V O N N E
F L E T C H E R
1 9 8 4
Are diplomats floating above the
law?

3. OVERVIEW
1) Why do we have diplomatic immunities? What
are its legal doctrines?
2) How did diplomatic law, and its codification evolve
over time?
3) Why do we have the 1961 Vienna Convention on
Diplomatic Relations (VCDR)?

4. WHAT ARE DIPLOMATIC IMMUNITIES?
• Entail a special legal position accorded to diplomats
by the receiving state
• Diplomats not subject to the ordinary process of law
VCDR Article 41 (1):
[…]it is the duty of all persons enjoying such
privileges and immunities to respect the laws and
regulations of the receiving State […]

5. TRIPARTITE OF DIPLOMATIC IMMUNITIES
Tripartite of diplomatic immunities*
1. Inviolability of mission premises and its
staff
2. Diplomats enjoy freedom from criminal
jurisdiction
3. Leads to granting of privileges such as
exemptions from dues, taxation and
custom duties
* Berridge/ Lloyd (2012), Dictionary of Diplomacy, p.
110f

6. WHY DO WE HAVE DIPLOMATIC IMMUNITIES?
VCDR preamble: two doctrines are mentioned
• functionality & representative character
theory

7. REPRESENTATIVE CHARACTER THEORY
• Starting point: do not kill the messenger
• Envoys = dignity of majestas of the state
1)Ambassadors must be admitted
2)Ambassadors must be free from violence

8. DOCTRINE OF EXTERRITORIALITY
Renaissance Italy
Emergence of modern diplomacy; 1420 & 1530
Resident ambassador’s tasks
• make allies & undertake intelligence work
Theory of exterritoriality
• Fiction: ambassadors abroad remained at
home
• Diplomatic premises constituted an extension
of
Home!
the sovereign state

9. DOCTRINE OF FUNCTIONALITY
• 20th century
• Predominant legal justification for
diplomatic privileges and immunities
diplomacy
• Diplomat is not subject to the
jurisdiction of local courts because this
would hamper his diplomatic function
Home!

10. CODIFICATION OF DIPLOMATIC IMMUNITIES
Year Instrument Object
1815 Congress of Vienna Vienna
Regulation,
precedence
1895/1929 Institute of International
Law
Oxford sessions/
New York
resolution
1928 Havana Convention Ordinary/extraordi
nary
representation
1932 Harvard Draft Diplomatic
Privileges and
Immunities

11. VCDR & PREPARATORY STAGE
United Nations made codification of international
law integral part of its work
Lesson learnt from past experience under League
of Nations
Cecil Hurst: A plea for the codification of
international law on new lines
International Law Commission in 1949 which
included the codification of diplomatic
immunities in its list of codification

12. VCDR & PREPARATORY STAGE

13. IMPORTANCE OF PREPARATORY WORK:
• Settled Cold War issues:
freedom of movement, size of
mission,…
• It set the scope of codification:
consular relations ,diplomatic
asylum, immunities granted to
international organizations
• Balance of legally-binding
form with focus on codification

14. VCDR & DIPLOMATIC STAGE
2 March – 14 April 1961: Vienna Conference
VCDR product of its time: focus on inter-state politics to avoid
friction between states; conference is famous for its friendly
atmosphere
Signature on 18 April, 81 delegations -first conference under UN
during which Afro-Asian delegations formed a majority
(29/81)

15. POLITICAL SIGNIFICANCE OF VCDR
• It avoided friction through clear rules
• Provided clear rules to newly independent states
• Strengthened the reputation of the International Law
Commission/ United Nations

16. STRUCTURE OF VCDR
• From 28 to 53 Articles, two optional protocols on nationality
and settlement of disputes and four resolutions (special
missions, consideration of civil claims, tribute to ILC, tribute to
Austria)
Preamble Doctrines Functionality, representative
theory
Article 1 Definitions Diplomatic agent
Article 2-19 Formal matters concerning
establishment and maintenance of
diplomatic relations
Functions of mission, persona non
grata, size of mission
Article 20-40 Relate to privileges and immunities
accorded to diplomatic missions and
persons connected with them
Inviolability of mission premises,
diplomatic bag, tax exemptions
Article 41-47 Miscellaneous provisions Duty to respect local laws,
termination of function
Article 48-53 Final clauses Signature, ratification

17. 4 MAJOR PROVISIONS*
Absolute inviolability of mission premises (Article
22)
• Not even to enter without of the head of mission
• Host country is in a duty to protect mission against
intrusion or damage
2012 Ecuadorian mission
in London/ Assange 1977 US mission in Moscow/
burning
*Bjola/Kornprobst (2013), Understanding International Diplomacy

18. 4 MAJOR PROVISIONS
Diplomatic immunity (Article 31)
• Diplomat enjoys immunity from criminal jurisdiction,
and with some exceptions also civil and
administrative jurisdiction
• Different degrees of diplomatic immunity

19. 4 MAJOR PROVISIONS
Freedom of diplomatic communication (Article 27)
• Including diplomatic bag & diplomatic wireless
• Communication between mission and sending state
(not within receiving state!)
• Embassy ought not to interfere in internal affairs of
host country

20. 4 MAJOR PROVISIONS
Persona non grata declaration (Article 9)
• 2004 Mexico declared Cuban diplomat persona non
grata after Castro had declared Mexico's prestige
had turned into ashes.
• In 1971 Britain sent 105 (550) Soviet citizens home
Fidel Castro
British Foreign Secretary Alec
Douglas-Home with prime minister
Edward Heath

21. COMPLIANCE WITH VCDR : INVIOLABILITY
• Mission premises are inviolable; in some cases this
is violated. Most headline-producing was Iran
Hostage Crisis in 1979 and another incident with
UK embassy in Tehran in 2011 were the Iranian
government failed to protect the mission premises.
1979: Iranian students storm US embassy

22. COMPLIANCE WITH VCDR : DIPLO IMMUNITY
• Diplomatic immunity: diplomats become target of
mistreatment.
• In 2002 African ambassadors requested better
protection form the Russian authorities, concerned
about racist attacks.

23. COMPLIANCE WITH VCDR : TAPPED COMMUNICATION
Tempering with communication lines
Cold War: FBI built a tunnel underneath Soviet
embassy
Recent examples include spying on top politicians
organized via mission premises (Angela Merkel)

24. CONCLUSION
1. Immunities granted for functions of a diplomatic mission
and because they represent a foreign state.
2. Doctrine of functionality & representative theory
3. Diplomats have a duty to respect local laws (Article 41)
and are not above the law.
4. 1815 Règlement de Vienne, 1928 Havana Convention,
1932 Harvard Draft
5. VCDR contains 53 articles, most of which are a pure
codification of diplomatic custom; most important ones
are Article 9 (Persona non grata), 22 (Inviolability of
mission premises), 27 (freedom of communication), and 31
(Diplomatic Immunity).

25. A CORNERSTONE OF MODERN DIPLOMACY
R E V I EWS
“This book serves two important
functions – adding to the literature
about the making of the 1961
Vienna Convention on Diplomatic
Relations and providing an
account of the UK's role in its
creation. Scholars in both will find
it compelling and useful.”
Prof Richard Langhorne, Buckingham University, UK
Thank
you.