On Sunday, a Diplomat from Uruguay posted in New Delhi was caught arguing with the Delhi Police after being caught violating the national lockdown that has been enforced in India and in other parts of the world to fight the deadly Coronavirus.
The Police let her off after noting down her details, which will be communicated to the Ministry of External Affairs. They will then take it up with the Embassy. This lockdown is an unprecedented move to curb the rising number of COVID-19 cases.
Can normal police action follow in this particular case or can the diplomat claim ‘diplomatic immunities’ and get away?
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Here we look at some of the concepts associated with diplomatic immunities and privileges:
What are diplomatic immunities and privileges?
From ancient times, the international customary laws dictate that diplomats who are only agents of another state, furthering the ties and friendship between two nations are not to be penalised in their host country.
This was formalised at Vienna and was called the Vienna Convention on Diplomatic Immunities and Privileges, 1961.
Here are some of the rights available to diplomats in the host nation:
Firstly, the host state cannot prosecute diplomats and their family members for any of their acts which are in contravention of the law in force in the host country. They can only be detained if they pose a danger to public safety. The host country can ask them to leave the country after declaring them as ‘Persona Non Granta’. In normal cases, considering the state of relations, the host nation asks the sending state to recall their diplomat and expels them as a last resort to avoid a downturn in the relations.
Secondly, Embassy complexes and other diplomatic establishments such as trade buildings, residential properties of diplomats, cultural centres and consulates cannot be checked by the host state and can only be entered upon with the permission of the staff.
Thirdly, Diplomatic staff and their belongings are exempted from checking and are allowed free passage.
Lastly, they are also exempted from all forms of taxes and financial penalties.
The safety of the diplomatic mission and the diplomats is the responsibility of the host state.
It is slightly different in the case of Consular staff who work in the consulates either in the capital or outside it.
For example, India has a High Commission in Colombo (Sri Lanka) and a Consulate in Jaffna.
The Consular staff work under the guidance of the main diplomatic mission (Embassy or High Commission). They are governed separately under the Vienna Convention on Consular Relations.
Their staff can be detained and arrested by the agencies for various offences. Example, Indian Diplomat Devyani Kobragade who was with the Consulate of India in New York was arrested.
Why are these privileges granted? Can it ever be revoked?
This has been done to empower the diplomats and is available to enable them to carry out their functions effectively.
Yes, they can be revoked with the consent of the sending state. For example, let us say Diplomat A from Country X has committed a crime in India. India can only prosecute A with the permission of the country X. This is called a diplomatic waiver.
What are the consequences of over-exploiting these privileges?
In the case of the diplomat from Uruguay, the Ministry of External Affairs on April 3 had issued a note to all diplomatic establishments in the capital and asked them to follow the lockdown that has been initiated by the government. They have also been issuing some special passes in certain cases.
According to them, most nations have abided by the lockdown and some are being persuaded to follow it.
‘Over exploitation’ of diplomatic immunities and privileges will only lead to downturn in the relations between nations and international embarrassment. No nation would ideally want to expel diplomats of other states. However, many are forced to do so as a last resort. For example, India expelled the then Deputy High Commissioner of Pakistan Jalil Abbas Jilani in 2003 for indulging in espionage activities.