Can a diplomatic agent waive or lose his immunity?
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Article 29 of the Vienna Convention on the Diplomatic Relation, 1961 provides that 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 appropriate steps to prevent any attack on his person, freedom or dignity. But the diplomatic agents shave a duty not to interfere in the internal affair of the state. Moreover, the premises of the mission must not be used in any manner incompatible with the function of the mission as laid down in the present convention or by other rulers of general international law or by any special arrangements in force between the sending and the receiving state.
Article 21 of Vienna Convention on Diplomatic Relation, 1961 grants immunity to diplomatic agents from criminal jurisdiction of Courts. However, it is generally believed that they will not violate the provision of the law of the state where they are appointed. Beside this, it may be noted that there are conditions under which the diplomatic agents may lose their immunity. For example, they may lose the immunity if they are guilty of conspiracy against state. The example of George Gyllenborg 1712 may be cited in this connection. He was an Ambassador of Sweden in England and he was arrested on the charge of conspiracy against George 1, the King of England. If a case is filed in a court against a diplomatic agent, then it is not necessary for him to present himself personally in the court. It is sufficient for him to send the message that he is a representative of a sovereign state and is outside the jurisdiction of the court. But if he does not take this ground and present himself personally and unconditionally in the court then it will be deemed that he has waived his immunity and he will then be deemed to be within the jurisdiction of the court.
Reference may also be made here to the case of arrest warrant of 11 April, 2000 (democratic Republic of Congo v. Belgium) [2002/04]. This case related to an international arrest warrant in absentia issued in April, 2000 by an investigating Judge of the Brussels Tribunakl against Mr. Abdonlaye Yerodia Md of having made certain speeches in the Congo in August, 1998 causing an incitement to racial hatred. He charged the Minister who was a Belgium national and was neither a resident of Belgium not present in the capacity with (i) grave breaches of the 1949 Geneva Convention and of the Additional Protocols thereto, and (ii) crimes against humanity. The International Court of Justice decided by 13 to 3 that the issue and the international circulation of the disputed arrest warrant had failed to respect the immunity from criminal jurisprudence and inviolability which Mr. Yerodia enjoyed under International law.
Duties of Diplomatic Agents
- Duty to respect laws and regulations of the receiving state.
- Duty not to interfere in the Internal Affairs of the State.
- Official business to be conducted with or through the Ministry of Foreign Affairs of receiving state or such other Ministry as may be agreed.
- Premises of mission not to be used in any matter incompatible with the function of the mission.
- Diplomatic agent not to practise for personal profit any professional or commercial activity.
As pointed out earlier, the diplomatic agents enjoy a number of immunities and privileges. The question, however, may arise whether a diplomatic agent may waive his immunity or he may lose their immunities under certain circumstances. There are certain circumstances under which a diplomatic agent, he is entitled to refuse to go to the court and may simply sent the message that he enjoy the immunity from the jurisdiction of the court. But if he does not do so and presents himself unconditionally in the court and allows the case to proceed, he may lose his immunity. Similarly, if a diplomatic agent files a suit in a court it will mean that he has waived his immunity and has accepted to be under the jurisdiction of the court. Thus, he automatically loses his immunities. The diplomatic agents enjoy the immunity from being present himself as a witness then he will lose his immunity. Similarly, the diplomatic agents enjoy the immunity from payment of taxes.
Article 32 of the Vienna Convention on Diplomatic Relation, 1961 requires that waiver must always be express. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from involving immunity from jurisdiction in respect of any counter-claim directly connected with the principle claim. It is, however, provided that the waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary. Thus, at the time of the execution of the judgment of the court, the diplomatic agent may successfully claim his immunity.