Diplomatic Law & Remarks on Nepal’s Practice
Diplomatic Law BA LLB Nepal
Diplomacy is the tool of conducting the foreign policy and foreign relations. States communicate, bargain, influence and adjust their disputes through diplomacy. Diplomacy is the way or means for allies to cooperate and adversaries to resolve conflicts. Diplomatic law is that law which governs diplomatic missions and all diplomatic activities. Diplomatic law is the part of public international law. International law, also called public international law or law of nations, the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors. In this work, diplomatic law and its constituents has been studied on reference to public international law. The article argues that, diplomatic law is a vital part of international law but in practical it’s all about the two states conduct. At last of article the remarks of the practice of diplomatic law in Nepal has been made.
Keywords: Diplomatic Law, Diplomatic Immunities and Privileges, Foreign policy, Diplomacy of Nepal
- Introduction to (Public) International law
Law is the set of binding rules that regulate the conduct of subjects. Law made for a state having jurisdiction in the definite territory or sovereignty of a nation is domestic law and the principles or rules observed by the almost all nations bears obligations of it is called international law. International law governs the relationship of states. International law is divided into private international law and public international law. International legal system is quite different than the domestic legal system.
The classical public international law is basically based on costmary law but modern nation states conduct international law by the international treaties and determinations or simply statutory legislative management. International law has its early origin in 1625, when the Jurist Hugo Grotius, ‘On the Law of War and Peace’ states that laws may originate between states for the greater advantages of society of states. Primarily international law was only related to war and peace but now it is in general a sort of mechanist of international relation and diplomacy. The law that regulates diplomacy in international relation is called diplomatic law which is one area of international law.
1.1 Sources and Subjects of Public International Law
The term ‘source of international law’ means legal rules governing the international community in international law. Unlike national laws, where sources of law are specified in a norm superior to laws and regulations, usually a constitution, no such norm exists in international law. The International Court of Justice, stipulated a catalogue of sources of international law, which is used when deciding legal disputes submitted before the world court. The first source is international treaties, whether a general or particular treaty, a bilateral, regional or multinational one. A treaty is a binding international agreement by which the countries are obliged to observe their contractual obligations. Second source is customary law. At the outset, international law was mainly constituted by customs, which is by its nature, universal, whereas treaty law binds the parties to these treaties only. International custom consists of two elements: first is State practice, which means what generally states do and say. Oppinio Juris is the second element of customary law. It means that the state practice has to be accepted as law by the other states. In addition to treaties and customs, informal sources like general principles of Law, judicial decisions and ICJ practices, resolutions adopted by international organizations are considered as other sources of public international law.
‘Subjects’ means to whom international law is subjected to or simply the areas where the international law has its jurisdiction. States and non-State actors like individuals, international organizations, multinational companies and international non-government organizations are regulated by international law. So they are called subjects of international law. These subjects have international legal personalities.
1.2 Private and Public International Law
Generally International law is itself a public international law. Private international law is known as only the ‘conflict of laws’. Some jurists consider private international law as part of municipal law because it deals with two individuals of two different states, not the relationships of two states. Public international law is the same for the world but private international law varies from state to state. Public international law only originates from the direct agreements and treaties between nations. It includes criminal law, maritime law, the law of war, human rights law, refugee’s law and any other laws established by treaties. Contrary to this, private international law largely subjects to the agreement between individuals and businesses. It answers the question of which jurisdiction may hear the case and the law concerning the issue in the case.
1.3 Diplomatic Law As the Part of International Law
The tool and instrument to conduct foreign policy is called diplomacy. La binding the diplomatic activities is the diplomatic law. The section of international law dealing with diplomatic privileges and immunities is also often called diplomatic law. It is the part of international law which governs permanent and temporary diplomatic missions. It is also an accepted principle of customary international law and is recognised between countries as a matter of practicality.
Key elements of diplomatic law are the immunity of diplomatic staff, the inviolability of the diplomatic mission and its grounds, and the security of diplomatic correspondence and diplomatic bags.
Beside the major impact of the customary sources in diplomatic law, there is practise of codifications of diplomatic law also. British Diplomatic Privileges Act 1708 is one of oldest diplomatic codification. The basic rules established by the protocols of the Congress of Vienna of 1814–15 and the Aachen Congress of 1818 later became generally recognized norms of international law. Havana Convention of 1928 on diplomatic officials, which was signed by 14 Latin-American states is example of regional diplomatic law. The UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents was adopted in 1973.
Codification of international law became a major issue after October Revolution of 1917, when states with two different social systems existed side by side. The Soviet state influenced the norms of diplomatic law not only through the general direction of its policy but also by advancing concrete principles for regulating the work of diplomatic missions. Modern diplomatic laws are codified from two conventions. 1961 Vienna convention on diplomatic relations (Vienna Conventions) and 1963 Vienna convention on consular relations (Consular convention). These international legislations manage the diplomatic laws.
- Diplomatic Missions: Diplomatic and Consular Law
Diplomacy is the profession, activity, or skill of managing international relations, typically by a country’s representatives in receiving states. Diplomacy is carried out through the institutions by the diplomats. Diplomatic missions are the structures or the organizations which conduct the diplomacy and mainly includes the representatives of the sending state. Diplomatic mission is the collective term for a group of diplomats from a single country residing in another country. Ambassador is the most senior and head of the diplomatic mission of any sending state who leads the Embassy. Beside the political and diplomatic task done by the Embassy, the consular missions work for the economic, cultural and other functions on the behalf of sending state in receiving state as the administrative functioning of nationals in receiving state. Beyond diplomatic and consular missions Special Missions are appointed by states for diplomatic functioning. A ‘special mission’ is a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task”(Convention on Special Missions 1(a)) Permanent missions to the international organizations are also diplomatic missions for specific purposes.
Diplomatic mission premises, diplomatic personnel, consular missions and personnel are specially protected and immunes from the law of receiving state under diplomatic and consular laws. The receiving state is required to permit and protect free communication on behalf of the mission for all official purposes. Such official communication is inviolable and may include the use of diplomatic couriers and messages in code and in cipher is called the ‘Diplomatic bag’. This bag is immunes from any checking, although the consent of the receiving state is required for a wireless transmitter.
Diplomat is one who represents the sending state in the receiving state. He is the one who involves in diplomacy. Diplomats are classified as i) ambassadors, legates, and nuncios, ii) envoys extraordinary and other persons accredited to the head of state, iii) ministers resident, and (iv) chargés d’affaires. Similarly, Consular are classified into consular general, Consuls, Vice consuls of career and consular agents. Diplomatic missions have functions described in Article 3 of Vienna convention on diplomatic relations of representation of sending state, negotiation with receiving state for interest of sending state and reporting that to sending state and protection of interests of sending state with promoting friendly relation with receiving state. Article 5 of Vienna consular convention describes consular function as promoting commercial, cultural, economic and scientific relation, issuing travel documents to nationals of sending state and safeguarding their interests, perform administrative functions as a notary and civil registrar, facilitating the national of own in judicial proceedings and many other functions directed by the sending states.
2.1 Diplomatic Privileges and Immunities
Diplomacy is conducted in confidence of both states. International conventions manage to give complete immunity to the diplomatic agents and protection to the missions. Diplomatic mission premise is the extension of sovereignty of sending states and diplomatic agents as the representatives of sovereign power. Respect for diplomatic agents is considered as respect for the sovereignty of the sending state. The most fundamental rule of diplomatic law is that the person of a diplomatic agent is inviolable. Diplomats may not be detained or arrested, and enjoy complete immunity from criminal prosecution in the receiving state, although there is no immunity from the jurisdiction of the sending state.
The private residence, papers, correspondence and property of diplomats are also inviolable. In general, diplomats are immune from the civil and administrative jurisdiction of the state in which they are serving, although there are a number of important exceptions. The UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents adopted in 1973 provides that states parties must make attacks upon diplomats a crime in internal law, and obliges them to extradite or prosecute offenders. However, in exceptional cases, a diplomat may be arrested or detained on the basis of self-defense or in the interests of protecting human life.
It is an absolute rule that the premises of the mission are inviolable and agents of the receiving state cannot enter them without the consent of the mission. The receiving state is under a special duty to protect the mission premises from intrusion or damage or “impairment of its dignity”. By the same token, the premises of a mission must not be used in a way which is incompatible with the functions of the mission.
Diplomatic relations exist by virtue of mutual consent. The sending state must ensure that the consent of the receiving state has been given for its proposed head of mission. Similarly, the receiving state may at any time declare any member of the diplomatic mission persona non grata and thus obtain the removal of that person. In 1999, for example, an attaché of the Russian Embassy in Washington DC was declared persona non grata for suspected “bugging” of the State Department. Although it is unusual, the sending state may expressly waive the immunity from jurisdiction of diplomatic agents and others possessing immunity. Famous cases involving the breaking of diplomatic laws include the Iran hostage crisis in 1979, the shooting of a British police woman from the Libyan Embassy in London in 1984, and the discovery of a former Nigerian Minister in a diplomatic crate at Stansted airport in 1984.
2.2 Practices of Nepali Foreign Policy and diplomatic laws in Nepal
The foundations of Nepali foreign policy was established in late king Prithivi N Shah (1722-1775) encrypted in his Divya Upadesh. He warns Nepal to stay cautious on Chinese Empire in the north and British (Indian) in the south. Nepal foreign policy and diplomacy came to run within the family rule of Ranas. Later in 1950, Nepal faced difficulties to manage the so-called ‘Special relation’ with India. Later in Panchayat Nepal managed to conduct its foreign policy. Nepal Became the UN member and joined the non-aligned movement. In this time Nepal starts its independent foreign policy and starts diplomatic relations with the rest of the world. After the restoration of democracy too in 1990, Nepal continues its firm on Panchsheel principles and non-aligned principles. Currently, there are 39 Nepali diplomatic missions abroad – 30 Embassies, 3 Permanent Missions and 6 Consulates General from Nepal. Nepal extends its diplomatic relations with 168 countries with the objective of enhancing the dignity of the nation by safeguarding sovereignty, territorial integrity, independence, and promoting economic wellbeing and prosperity of the nation. Nepal being the major peace keeping force in the UN, is contributing to global peace, harmony and security. Nepal conducts its diplomatic relation based on the panchsheel principles, i.e mutual respect of sovereignty, non-interference in each other’s internal affairs, respect for mutual equality, non-aggression or peaceful settlement of disputes and co-operation for mutual benefits based on Article 50.4 and 51 of constitution. To conduct this foreign policy Nepal has a good sort of history of following diplomatic law.
Nepal have ‘Diplomatic Privilege and Immunities of the Foreign States and Representatives Act, 2027 (1970)’ for the provision of diplomatic laws in Nepal. The preamble of the Act said, ‘it is expedient to provide for provision on diplomatic privileges and immunities to the foreign state, their representatives and officials in accordance with International Law and Practice.’
- Building and premises of a Mission to be inviolable (Sec. 3)
According to this section official or agent of government of Nepal shall not enter into them, except the consent of head of mission. The GON have duty to protect such premises and shall not bear right to search, requisition, confiscation, attachment or execution of property or transportation of mission.
- Archives of the Mission to be inviolable (Sec. 4)
At any time and wherever they are, mission archives are inviolable.
- Official correspondence of the Mission to be inviolable (Sec. 5)
Under this provision official correspondence of the mission shall be inviolable and diplomatic bag shall not be opened or detained.
- Exemption of Tax regarding building and premises of the Mission (Sec. 6)
According to this section, Head of the Mission shall be exempt from national or municipal dues and taxes in respect of the buildings and premises of the Mission.
- Section 7 elaborates about Personal Inviolability of the Diplomatic Agent, and section 8 elaborates about Inviolability of a private residence of the Diplomatic Agent. Section 9 of Act elaborates other exemptions of diplomatic agents like exemption from social security, all kinds of personal services, public services and military obligation by the Government of Nepal.
- ‘Immunity from Criminal, civil and administrative jurisdictions of Nepal to Diplomatic agent’ (Section 10)
Diplomatic Agent shall enjoy immunity from all criminal civil and administrative jurisdictions except in action related to private immovable property situated in territory of foreign state and whenever she involve as private person in any commercial activity not behalf of mission.
- Diplomatic agents are in complete Exemption from Custom Duty and Tax (Sec. 11 and 12) of Nepal except in few exceptions of administrative and usual goods of Nepali territory.
- Privileges and Immunities to the members of the Family of the Diplomatic Agent (Sec 13) is given except if family member if citizen of Nepal.
- This Act provides privileges and immunity to the administrative and technical staffs and their family members (14), Service staff (15), tax exempt to the private help or servant (17), but the diplomatic agent citizen or permanent residence of Nepal shall enjoy immunity only when s/he is working as the diplomatic agent.
The surficial study of the diplomatic law in reference to the pubic international law has been conducted and narrated in this article. The article also concluded the practices of diplomatic immunities and privileges in Nepal.
- The Great Soviet Encyclopedia, 3rd Edition (1970-1979). © 2010 The Gale Group, Inc.
- Diplomatic Privilege and Immunities of the Foreign States and Representatives Act, 2027 (1970)
- AudioVisual library of International Law, UN. – https://legal.un.org/avl/ha/
- The Diplomatic Development of Nepal, MacAlister Brown Vol. 11, No. 7 (Jul., 1971), pp. 661-676 (16 pages) Published by: University of California Press jstor.org
- Vienna diplomatic and consular conventions.
- This article uses material from the Wikipedia articles, google scholar, various sites and open source articles.
Diplomatic Law (as the Part of Public International Law) & Remarks on Nepal’s Practice