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From time to time, the relationship among nations is always the concern of all the participants, which can be shown through the appearance of embassies, groups of diplomats and other staffs. In the purpose of developing optimistically to the connection of countries, maintaining the equality of their own national sovereignty as well as the international peace and security, the Vienna Convention on Diplomatic Relations was signed in 1961. From this convention, the term “state immunity” was spread which have brought many privileges for the diplomatic agents for the original goal that they can be protected to work completely the mission as representatives for their host country. However, until now, it can be seen that these articles in this protocol have a lot of apertures that happened in reality. This essay will raise my personal voice about that problem in term of international law.
Before deeply figuring out these drawbacks, it is necessary to take an overview at the concept of state immunity and the application of the Vienna Convention on Diplomatic Relations (VCDR). Firstly, immunity is the term used in international law, which is related to other specific aspects as diplomatic immunity, the immunity of leaders of states and state immunity. Basically, these ideas have the same reference that a certain individual from the sending country can be an exception of all the civil jurisdiction and prosecution of the receiving nation. This concept comes from the view for the sovereign balance all over the world preserved by the Charter of the United Nation. The action of protecting citizens from a foreign court is defined as state immunity which until now still is a regulation in international law. To practice this statute, from 2nd March to 14th April 1961, a Convention was held by the United Nations Conference on Diplomatic Intercourse and Immunities with the participation of 191 states in Vienna, Austria. As a result, the Vienna Convention on Diplomatic Relations was ratified by all the involving nations with the document of 53 articles. This treaty illustrates that diplomats are seen as a special situation which demands a preferential treatment to have the best performance for their functions without considering the regulations of the receiving countries. It can be seen that the Vienna Convention on Diplomatic Relations is one of the typical documents to enforce the concept of state immunity and also a meaningful premise of the later related domestic law in some countries in the world such as United Kingdom, United State, Vietnam and so on.
Theoretically, from these 53 articles, a comprehensive framework of the form, maintenance for a new regulation of diplomatic agents and the friendly development of the relationship among nations as well as a list of definitions for some certain entities. Looking closer to the key provision of this convention, there are two outstanding points that become the theme for the whole document as mentioned above. The first factor is the inviolability which might be easily understood that the individual or group can be out of any influence from the outside. In the case of VCDR, it is supposed to be a useful tool to protect the diplomats and other staffs from the domestic ties coming from receiving country. They are believed to be able to legally apply and take advantage of these regulations to help them with their missions. According to Article 25, they can work and perform their duties in the unobstructed condition under the protection of the receiving state. Clearer, in this treaty, inviolability is shown in these articles 22, 24, 27, 29, 30 and 37. In terms of human, it is applied for the diplomats, the staffs in the office, but in the smaller scope of immunity, and even their families together living in this receiving country. In other words, they cannot be arrested and sued to any civil suit or jurisdiction in any case. Another being-protected aspect is property which includes the headquarter with everything inside of the sending state; the information, materials and also the document coming back to the host country and even the private houses with all the owned matter of the employees. It can be said that all the diplomatic groups of people are protected and supported at the highest level because of their positions and duties. Secondly, going deeper to the immunity, they are separated from almost the domestic tax, law, insurance, labor or military obligation except for some unnoticeable circumstances, which is stated in the article 23, 28, 31, 33, 34, 35, 36, 37 and 38. From that, it can take a further viewpoint that this treaty can give an expression to the respect and a steadfast relation between nations. The foreign state can illustrate its goodwill to the existence of other states in its territory; and also, the sending state can ensure the safety for its citizens who come abroad for their important missions. The typical example for the optimistic effect of this convention is the case of the United States Diplomatic and Consular Staff in Tehran in 1979, which is about the suit between Iran and America when 63 members of American diplomatic and consular staffs were taken, hostages. By using clauses in VCDR, United State finally made its citizens be released and took a violation on the side of Iran. From this situation, the International Court of Justice judged that: “…the institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an effective instrument for co-operation in the international, and for enabling states……. to achieve mutual understanding and to resolve their differences by peaceful means……”. This case demonstrated for the essential of the immunity which is like an insurance for the abroad lives of diplomats and other staffs.
On the contrary, in reality, a lot of insufficient points and apertures regularly come out from many cases of malpractice. It is believed that people working for diplomacy and even their family are immune from any kind of jurisdiction. Although the article 42 of the convention stated that “A diplomatic agent shall not in the receiving State practice for personal profit any professional or commercial activity”, there are many crooked acts which abuse the official work as a mask for their personal purpose. The reality shows that these apertures of this convention bring a number of unreasonable situations about the treaty abusement for the personal acts while practicing it. It can easily be seen that the process from agreeing to sending people to another country is carefully stated in the logical and clear way. Whereas, the special treatment for them during the living time is somehow loose and unpersuasive. From the beginning, these sent diplomats have a privilege which is beyond the control of the local state which already has regulations for citizens. Although they still have to follow the law of their home country and also the international diplomatic one, there is no representative to take charge of observing and caring about them obviously because of this immunity. It seems like that the sent people in terms of international law is given “an absolute freedom”. Hence, contrasting to the originally positive goal that it can make a liberal and easy-going working environment for them, it is likely for them to recognize that this insufficiency can serve their self-interest to do something they want. In other words, this convention may lead to the abusement which is not only harmful to individual or group of people related but also for the relation between two countries involving.
As mentioned above, the unclear VCDR has resulted in a huge number of an awkward and messy situation right after it was taken into practice. One of the noticeable case recently about this issue is between the United State and Pakistan in 2011. An employee of the Consulate General of the United States in Lahore (Pakistan) – Raymond Davis who defined himself as a diplomat was arrested by the crime of gun-killing two Pakistanis that were doubted to follow him and the third one due to the rescuing car’s accident. When being sued, he demanded to release by the immunity under the VCDR for his position. From that, a debate was triggered about the decision that whether he could be free or not. In this situation, it is very difficult for both sides to raise the reasonable voice to solve the problem. With Pakistan, Raymond Davis did take an extremely serious crime that kills people even by weapon just because of his doubtful thought. This action would raise a big wave of opinions that it is necessary to condemn him for the Pakistani. With America, initially, they did not divulge full personal information of Davis and also take the VCDR to put pressure on Pakistan that this American needed releasing as he enjoyed the convention. Besides, it has taken many obstacles in the relationship between two countries to become worse while they both illustrated to the strategic connection. Finally, it turned out the result that Davis is free with a compensation of 2 million dollars for victims. From that, the convention is thought so easy to apply but extremely complicated in fact to balance all the side. Another example for this viewpoint is the case between Iraq and Pakistan soon after the ratification of the VCDR. In 1973, after receiving information that the Embassy of Iraq is storing a huge number weapons which are located in the territory of Pakistan, there was a serious invitation to the Ambassador from the Foreign Office for further discussion. Based on the VCDR, the representative of Iraq denied being searched in the office because of the inviolability. However, the unpredicted discovery from the policeman of Pakistan was held and finally figured out these informed weapons. Immediately after that, the Ambassador of Iraq was affirmed to be Persona non grata of Pakistan and dispossessed his immunity. According to this case, it can be seen that both sides did abuse and violate the VCDR as well as made the relationship between Pakistan and Iraq become irredeemable. In fact, there are still many circumstances related to the VCDR and the principle of state immunity that the participating one had taken advantages from the apertures of VCDR to act as counsel for their acts. Iraq with no claimed reason spent illegally weapon in the domain of another country while Pakistan broke the treaty to also illegally search into the place which is protected by the inviolability right. Through these cases, the VCDR can now be more demonstrated to be unappropriated in reality.
The On the other hand, the term Persona non grata which is one of the main points in the VCDR is also a controversial problem. This concept is distinctly declared in article 9 that: The receiving state may, at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is a persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his/her functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving state. 2. If the sending State refuses or fails within a reasonable period to carry out its obligations under Para 1, the receiving State may refuse to recognize the person concerned as a member of the mission.
Looking at the statement, Persona non grata can be viewed as an acceptable solution when the country cannot arrest the guilty individual as above examples of amusement. This person will be driven out of this territory normally for 72 hours and dispossessed from his immunity. For instance, the group of diplomats on duty from Cuba became America’s Persona non grata in 2003 after an intelligence about abusement the immunity for the illegal act. Another Persona non grata is Erick Bairnals Shcks from Panama that he was immediately driven out the Philipines after being accused to rape a 19 years-old woman. Theoretically, it is necessary for a receiving country as an only right to control these sent diplomatic workers. However, somehow, like other immunities, it can be abused as a tool for nations in a political way, which can be called tit for tat. It is usually used when nations have some conflict about policy and want to put pressure on diplomacy to decrease its impact on their own country. To demonstrate, there is a case in 2016 that the United State applied this term to 35 diplomats and staffs from Embassy of Russia through the news that Putin government swayed to the American political system in the election period for President. Another outstanding case recently in 2011 that Ecuador claimed the American ambassador Heather Hodges to be Persona non grata because of the illegal discussion among her, Ecuador President and America Foreign Office. As a response, the Ecuador ambassador right away became Persona non grata of the United State. It can be seen that many acts coming out due to a concept are unagreeable even without any reason.
Concluding from all of the researching and studying, personally, there are some recommendations to be the changes for the VCDR 1961. Firstly, everything about the law which is controlling people should be clear and persuasive. Each article ought to be fully stated at all involving position and with evidently statements about reasons, special circumstances and so on. With an illustration about these privileges, it is necessary to figure out the personal act or private interest which might affect this country even the smallest one. Moreover, this special treatment needs to have some exceptions for the serious crimes like killing people, storing weapon or drug, terrorizing, propagating illegal belief and so on. With an application for any concept, it should be defined how to applied and in which certain circumstance that it can be used along with the reason for this decision to make sure that any declare has a planned motivation and purpose. Also, to balance and compensate for all the participation, a financial aspect should appear to pay back and fulfill the damage made from these accidents. In other words, the principle of state immunity in this convention is better if not be that absolute. To do that, it is essential to research deeply about all recent cases to find out all the aperture as well as a situation of the world in terms of law and policy to amend the convention to be suitable for all states. Furthermore, no matter what the amendment can be, initially a good faith among states need to be built up to have a firm foundation for the relationship to avoid regrettable misunderstanding and other corresponding consequences.
All in all, from the Vienna Convention on Diplomatic Relations in 1961, the principle of state immunity is shown very clearly in each article. Thanks to this treaty, the safety and mission of the diplomats and other diplomatic staffs can be ensured when being abroad. However, it still a difficult process of suitable practice because of the different aspects among nations and also this convention itself that is not yet the best version to apply acceptably. Hopefully, by the professional participation on a later day, the convention can be better and clearer in order not to make any further problem.
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