An Appraisal of the Doctrine of Diplomatic Immunity Under Private International Law
Diplomatic immunity is a legal policy agreed between governments that ensure diplomatic officialsare notsubjected to prosecution or any lawsuit in the courts of the host country. This immunity is aimed at protecting diplomatic communication channels through exempting diplomats from execution by local courts to enable them carry out their responsibilities freely, independently and with their security assured. However foreign officials should not take advantage of this immunity for their own benefit, but rather for them to perform their duties efficiently.These privileges and immunities are granted by the host country’s head of state on an understanding that it is reciprocated.
The 1961 Vienna Convention on Diplomatic relations and the 1963 Vienna Convention on Consular Relationscodified all rules, agreements and consular practices and provided standards to all nations. This was done to eliminate various problems that arose as a result of immunities and privileges being awarded on a bilateral and ad hoc criterion. It was agreed the concept of diplomatic immunity be enshrined to international law though many of its principles are still regarded as customary law.
The conventions grant immunity to officials in accordance with their position in a consular/diplomatic mission and according to immunity level needed for them to perform their duties. For example a diplomatic agent has a higher level of immunity compared to an embassy administrative staff. The agent and his family are exempted from criminal and civil prosecution.In as much as diplomats enjoy immunity from criminal and civil jurisdiction of the host nation, this exemption can be withdrawn by their countries of origin. Moreover, the exemption from the host countries’ jurisdiction doesn’t offer immunity to diplomats from their home countries’ jurisdiction. The diplomat’s home country can waive immunity so that the diplomat can be prosecuted if the individual has committed a serious offense or has witnessed such an offense.For example, in 2002 a Colombian diplomat, after his government withdrew his immunity, was prosecuted in London for manslaughter.
The host country has the discretion of declaring any diplomatic staff persona non grata at anytime. In such circumstances the home country terminates his/her contract and recalls the person from the mission. To curb the misuse of diplomatic immunities and privileges, the Vienna convention grants definite measures to be taken by both countries. In totality, the immunities and privileges provided have proven to be quite effective tools of facilitatingand maintaining relations between countries.