Modern Diplomatic Immunity is a legal immunity that ensures the diplomats are not susceptible to prosecution and lawsuits under the country's laws but they still can be expelled. Diplomatic immunity was codified and came to be known as international law in the Vienna Convention on Diplomatic Relations (1961) which was ratified by a handful of nations. The principles of diplomatic immunity are considered customary law. Diplomatic immunity was developed for the maintenance of government relations during difficult times and armed conflict. The sovereign is formally represented by the receiving diplomats and the head of the state grants a certain privilege and immunity to ensure that they carry out the duties effectively, understanding that these are reciprocally provided or given.
These immunities and privileges were granted bilaterally and on an ad hoc basis, leading to conflicts and misunderstandings, an inability for other states and pressure on weaker states to judge if the party is at fault. The Vienna Convention is an international agreement that was codified for the agreements and rules, providing privileges and standards to all states.
Understanding Diplomatic Immunity
Diplomatic immunity is enjoyed by international organizations or foreign states and their representatives from the country’s jurisdiction in which they are present in international law.
The diplomatic envoys were recognized by the states and civilizations throughout history. The preliterate ones were granted messengers to safe-conduct and ensure information exchange and maintain contact. The traditional mechanisms for protecting the diplomats included the use of priests as emissaries and religious-based codes of hospitality.
In Europe, during the Middle Ages, the entourages and the envoys enjoyed the right of a safe passage. A diplomat is not responsible for the criminal offences committed before the mission but was answerable for the crimes that were committed during it.
In the Renaissance period, permanent embassies were developed and the embassy personnel and the immunities accorded, expanded. When Europe was divided by reformation ideologically, the states turned to the legal fiction which treated the diplomats, their residences and their goods like they were located outside the country for justification of diplomatic exemption from the civil and criminal law.
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The doctrine of quasi extra territorium was developed by Hugo Grotius the Dutch jurist, to sanction privileges, and other theorists turned to the natural law to justify, define, or limit the increasing number of immunities.
The theorists used natural law appealing to moral injunctions, universally, to argue the representative nature of a diplomat and his functions of promoting peace also justified the moral law and his inviolability to have underscored the obligations to the larger community.