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Why was it introduced (political/sociological context)?
The importance of diplomatic missions has always been prevalent throughout history and so has the protection of diplomatic agents from unfair treatment on these missions and negotiations in another nation. Diplomatic immunity is a concept that has been around for many years, which has the aim of protecting diplomatic agents from any lawsuit or prosecution in another country, as well as threat or coercion. In addition, there has always been an overarching need to promote good relations between countries, especially in times of conflict and tension. This was the way of ensuring a level of diplomacy.
In the past, there has been several attempts to consolidate and codify customary laws regarding missions and diplomatic immunity. Yet, they always seemed to fall short of achieving their goals and became outdated to deal with changing countries and circumstances. This included the Congress of Vienna in 1815, which involved a meeting from representatives of European states. While it promoted some peace, it did not solve all of the political problems. This was later followed by the Havana Convention in 1928 through the League of Nations. However, there was a need to create a new agreement between countries that was modern and suitable for relations at the time of the 1960s. This is when the Vienna Convention on Diplomatic Relations 1961 was created and signed by many countries around the world.
What was the aim of the act (legal context)?
The aim of the Vienna Convention on Diplomatic Relations 1971 was to codify the rules on diplomatic missions that are completed by diplomatic agents and take place between different states, which had long been established for many years by customary law. This would be an international treaty that would create a framework for future diplomatic relations to ensure that certain rights and immunities can be enjoyed by everyone. In the preamble to the Convention, it states that it aims to affirm and regulate ‘the rules of customary international law’, to ensure ‘friendly relations among nations, irrespective of their differing constitutional and social systems’.
The Convention sought to promote friendly relations between states and ensure that diplomatic missions could take place successfully, without coercion or harassment by either state. This would be achieved by setting out clear and definitive duties for the receiving state, detailing the immunities of a diplomatic agent and outlining the duties of the agent from the sending state.
What main changes did it make to the law?
The Vienna Convention on Diplomatic Relations 1961 consolidated and codified many rules within 53 articles, concerning envoys and diplomatic missions. These rules would apply to all countries that signed the agreement, whether they were sending a diplomatic agent or receiving someone on a mission from another country.
The Convention lays down the duties of the receiving state. The country has the overarching responsibility to protect any agents of missions in their territory, by ensuring there are adequate measures in place. They should also ensure that all operations and missions can run their course without any unnecessary problems arising. This includes the exemption and immunity of searching premises or the transport of any diplomatic mission. Article 27 also details that communication of information shall be kept secure between the agent and sending state. Thus, this means that the receiving state cannot seize any documents from a diplomatic agent, despite any reasonable suspicion of what is contained in those documents.
The diplomat from the sending state is also able to enjoy immunity in the receiving state. This includes being able to avoid any kind of arrest or detention in another country, even if their actions were personal and not for the mission. This is detailed in Article 31, which states that an agent will enjoy immunity from the receiving state’s criminal jurisdiction. While a diplomatic agent will also enjoy some immunity from a state’s civil jurisdiction, there are exceptions laid down in the Convention. This includes, actions that are classed as outside official duties. Immunities can also be waived by their sending state under Article 32. Most of these immunities and protection can be enjoyed by the diplomat agent’s family too.
The Convention also lays down the duties and functions of diplomats, which was previously not consolidated into a written agreement. The agent’s actions should be to contribute to the mission of the sending state and not in any way be for personal profit. In addition, while the agent will enjoy certain privileges and immunities detailed in the Convention, they also have the duty to respect the laws within the receiving state during their mission, as well as not interfere with a state’s internal affairs.
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