CHAPTER: 1

 

 

The History and Philosophy of Diplomatic

Privileges and Immunities

 

 

Nearly all states today are represented in the territory of foreign states by missions. These diplomatic missions tend to be permanent in nature, although the staff who runs the mission as representative of the state may change from to time. Consequently, over hundreds of years, the missions have developed into the principal conveyance through which intercourse between states is conducted.

 

This chapter offers a brief historical overview of the concept of diplomatic privileges and immunities, and the theoretical bases in which they rest. Finally the legal sources of diplomatic immunities and privileges will be discussed.

 

 

Historical background and theoretical basis

 

 

1. Historical background

 

As early as the Egyptian-Hittite relations in about 1350, diplomatic activities have been conducted and recorded in clay tablets. Writers cited many events during which ancient kings and queens exchanged sending missions. These missions enjoyed immunities in a latter stage. The Greek city-states had heralds who served as their accredited messengers. Practice in ancient Rome followed the custom of respecting the sacred character of envoys. Early Indian kings and princes sent envoys to one another who were accorded immunities and personal inviolability. Chinese emperors allocated common residence for envoys supervised by the court.[1]  Arab Muslim Caliphs dispatched envoys and received foreign ambassadors to their courts.[2]

 

However, modern forms of diplomatic immunities could not take shape until the establishment of resident missions. This innovation occurred first in Italy and spread to other European states round the mid-fifteenth century.[3] The privileges and immunities of resident missions in the sixteenth and seventeenth centuries were something new different from the special system of courtesy accorded to ambassadors and heralds of the Middle Ages.  Sovereigns were usually anxious to preserve diplomatic contacts, and consequently more tolerant of the incidental frictions. But missions were often made up of inexperienced diplomats from young aristocrats who often abused their immunities. As such, local authorities responded aggressively and they forcibly invaded embassies.

 

As a result, discussions and arguments began to evolve round the limits of diplomatic immunity. Out of the confusions and uncertainties emerged an idea articulated by Grotius in 1620, the notion of the exterritoriality. 

 

2.  The Theoretical basis

 

There are three major theories that have prevailed since the mid-sixteenth century

One)     Personal representation

Two)   Exterritoriality and

Three)                     Functional necessity.

 

They form the conceptual basis of diplomatic immunities and privileges and are helpful in providing an intellectual framework for the rules, incidents, judgements, and opinions in the regimes of diplomatic immunities. Yet the theory of functional necessity seems to be the one that fits modern time. It is probably the most promising for the future. In the following passages the three theories will be briefly described and evaluated.

 

 

 a) The Theory of Personal Representation:

This theory has the longest history. Long before the term “diplomacy” was crystallized, rulers used to send to other entities their representatives, who were given special respectful treatment because, in honoring them, one pleased the ruler who sent them.[4] Ancient sovereigns viewed diplomatic persons as personifications of the sovereignty of the sending state.

 

The theory gained widespread acceptance during the Renaissance, when diplomacy was dynastically oriented. Support for it is found in the writings of theorists such as Grotius and Wheaton, and in judicial decisions where diplomats’ privileges were portrayed as equal to that of the sovereign. They were treated as though the sovereign himself was there.[5] Jurists like the French De Sinner, also accepted the theoretical distinctions that a diplomat enjoys in rights and privileges in the host state identical to those which would be accorded his master.[6] This means that the envoy was the personification, not only of the sovereign, but also of the state itself, which should be entitled to immunity, simply because of its equal independent status. In a world where state power was in the hand of individuals and dynasties, this theory was a clear guide followed in the practice.

 

In modern diplomatic practice, there are some traces of the theoretical notion that an ambassador is the personification of the head of the sending state. McCalahan indicated that he was impressed during his duty in the diplomatic services “ by the special aura of prestige which the … Belgian Ambassador in Baghdad could generate by referring to his position as   “l’ambassadeur du roi des Belges.”  To the sensitive ear, there is a particular fullness and resonance when he uses such phrase in his discussion.[7]  It is nowadays a ceremonial trend that most missions of monarchy states use such titles as the “Royal Embassy” or “Envoy of his Majesty, the King or her Majesty the Queen.” Yet, the practice is that the idea of personal representation is not fully accepted in modern times, for two major reasons:

 

First, the theory is too wide and too misleading because it is impossible to reconcile the personal representative character of the diplomatic agent with the supremacy of the receiving state.

 

Secondly, the theory cannot offer a theoretical cover for all components of the diplomatic immunities. It can neither provide a sound basis for extending immunities for official acts, nor can it explain exemptions enjoyed by diplomats for private acts.

 

Wilson adds a third reason why he finds that the theory has lost much of its validity with the rise of modern nation-state systems especially in presidential systems of governments where ruling is actually shared by executive, legislative and judicial branches. It will be difficult then; to find whose personification the ambassador will carries? [8]

 

However, the theory of representation cannot be discarded since immunities for all acts private and public can only be explained by combining the theories of personal representation and functional necessity. This was the line that the International Law Commission of the United Nations has followed in “solving problems on which practice gave no clear pointers, while also bringing in mind the representative character of the head of mission and of the mission itself.”[9]