What is Diplomatic Immunity and How to Obtain It

PERTANYAAN

Please explain how to obtain diplomatic immunity for diplomatic representatives? What are the rights of diplomatic immunity and how to get diplomatic immunity?

INTISARI JAWABAN

Diplomacy is the technique and procedure of conducting relations between states. Diplomatic law itself is regulated in the VCLT 1961, which consists of a set of rules and legal norms, one of which stipulates the immunities and privileges attached to diplomats.

So, what is diplomatic immunity? When does diplomatic immunity begin?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Apa itu Kekebalan Diplomatik dan Cara Mendapatkannya written by Renata Christha Auli, S.H. and published on Monday, 16 October 2023.

This article below is an update of the article entitled Diplomatic Immunity: Definition and Types which was first published on Tuesday, 8 November 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Diplomacy, Diplomat, and Diplomatic

Before answering the core of your question, it is necessary first to understand the meaning of diplomacy. The word diploma comes from the Latin and Greek "credentials". The word diplomacy then transformed into the terms diplomat, diplomacy, and diplomatic.[1]

Here are some definitions of diplomacy:

1. Encyclopedia Britannica

Diplomacy is the management of foreign affairs.[2]

2. Sir Ernest Satow

Diplomacy as the application of intelligence and tact to the conduct of official relations between the governments of independent states.[3]

3. Sumaryo Suryokusumo

Diplomacy is a political activity and is part of mutually influential and complex international activities, involving governments and international organizations to achieve their goals, through diplomatic representatives or other organs.[4]

From the various definitions of diplomacy, it can be concluded that diplomacy consists of techniques and procedures for implementing relations between countries.[5] One of the actors who carry out diplomacy is diplomats.

Diplomats mainly represent the sending state in the receiving state/recipient country, in world organizations and international forums. Diplomats have the appeal and expertise to advocate to influence decision-makers in the recipient country. In addition, for other diplomats to establish an approach, in order to create an increase in good relations between the receiving state and the sending state.[6] You can read more about the other functions of a diplomat in Article 3 of the VCLT 1961.

Meanwhile, according to Jan Osmanczyk, diplomatic law is a branch of customary international law consisting of a set of legal rules and norms that establish the position and functions of diplomats, including the organizational form of the political service.[7]

Also read: Ranks, Titles, and Requirements to Become a Diplomat

What is Diplomatic Immunity?

Answering your question, basically in conducting diplomacy, representatives of the state in order to carry out their duties properly and efficiently need to be given the right of immunity.[8] The rights of inviolability are absolutely necessary to properly carry out the functions of diplomatic representation.[9] Furthermore, the representation of the state which is considered sacred or sancti habentur legati, is an old expression and then animates the principle of inviolability of diplomatic missions.[10]

When you serve as a diplomat, you will get diplomatic immunity, which is the inviolable right of diplomatic agents in carrying out their duties as representatives of foreign powers. All diplomatic agents must be guaranteed security and welfare during the period of active service and on the principle of state reciprocity.[11]

The granting of diplomatic immunity is carried out on a reciprocity principle which is absolutely necessary in order to enhance or develop friendship between countries, regardless of different political and socio-cultural systems.[12]

So, what are the rights of diplomatic immunity? The following are diplomatic immunities and privileges in accordance with the VCLT 1961:

1. Personal immunity (Article 29, Article 37 paragraph (1) VCLT 1961);
2. Jurisdictional immunity (Article 31 paragraph (1) and (2), Article 41 paragraph (1) jo. Article 9 VCLT 1961);
3. Immunity from the obligation to be a witness (Article 31 paragraph (2) VCLT 1961);
4. Immunity of representative office and residence (Article 22, Article 30 paragraph (1) VCLT 1961);
5. Immunity from correspondence (Article 27 VCLT 1961);
6. Diplomatic immunity and privileges in third countries (Article 40 paragraph (1) VCLT 1961);
7. Exemption from taxes and customs duties (Article 34, Article 36 VCLT 1961).

In the mid-18th century, the customary rules of international law regarding diplomatic privileges and immunities were extended to representative premises, their possessions, and the freedom of communication for diplomats. Here are some of these protections according to the VCLT 1961:

1. Protection of representative premises (Article 1 letter i, Article 22 VCLT 1961)
2. Freedom of communication (Article 27 VCLT 1961);
3. Freedom of movement (Article 29 VCLT 1961);
4. Immunity of residence of diplomatic officials (Article 30 VCLT 1961);
5. Diplomatic pouches/diplomatic bags (Article 27 paragraph (3) and (4) VCLT 1961);
6. Diplomatic courier (Article 27 paragraph (5) and (6) VCLT 1961).

Then, under Article 37 paragraph (1) VCLT 1961, immunity is also granted to family members of diplomats living together, except those who are local nationals.

Also read: Can Diplomatic Envoys of Other Countries be Criminalized in Indonesia?

So, how to get diplomatic immunity? Here is the review.

Commencement and Termination of Diplomatic Immunity

To answer your question on how to obtain diplomatic immunity, we assume the commencement of diplomatic immunity. The VCLT 1961 provides that any person entitled to diplomatic immunity shall begin to enjoy it from the time he enters the territory of the receiving state, on his way to take up his office, or if he is already in the territory of the receiving state, and shall begin to enjoy it from the time his appointment is notified to the ministry of foreign affairs/other ministries as approved.[13]

The provision is stipulated in Article 39 paragraph (1) of the VCLT 1961 which reads:

Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

Then according to Oppenheim, diplomatic immunity concerning safety and the right to inviolability must be given even though he has not been officially accepted in the recipient country, this is because the position as ambassador is considered to take effect since he obtained a letter of credentials from his government.[14] A letter of credentials is a letter of credence given by the government of the sending state to the government of the receiving state which means that the diplomatic representation of the sending state has been approved by the receiving state.[15]

Oppenheim's opinion can be accepted on the basis of the following considerations:[16]

1. Because the government of the receiving state has given an agreement to the prospective diplomat to be accredited as a diplomat in the receiving state;
2. Because the embassy of the sending state has granted a diplomatic visa to the diplomat to enter the receiving state;
3. The first arrival of the diplomat has been notified immediately to the foreign ministry of the receiving country.

The above three things can implicitly be considered as a strong basis for diplomats to obtain diplomatic immunity from the receiving state.[17]

If we talk about the commencement of diplomatic immunity, we should also understand when diplomatic immunity is terminated. Generally, the duties of the head of a diplomatic mission end upon the expiration of the term of office granted to him. It can also end because he is recalled by his government or it can end because the diplomat is out of favor (persona non grata).[18]

According to J.G. Starke, the termination of a diplomatic mission is caused by several things, namely:[19]

1. Recall of the representative by his country (sending state);
2. At the request of the receiving country so that diplomatic officials are recalled by the sending state;
3. The surrender of the passport to the representative and the staff and family of the diplomat at the outbreak of war between the two countries concerned;
4. Completion of duties and missions;
5. Expiration of the credentials granted for a certain period of time specified in the agreement.

Thus, we can say that diplomacy as an effort to implement and maintain official relations between governments and countries is carried out through negotiation and deliberation. In carrying out diplomacy, diplomats get diplomatic immunity, which is the right to be inviolable in carrying out their duties as representatives of foreign powers. Diplomatic officials are entitled to diplomatic immunity from the moment they enter the territory of the receiving state, on their way to hold their position, or if they are already in the territory of the receiving state.

Also read: Differences between the Privileges of Diplomatic and Consular Officials

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

Vienna Convention on Diplomatic Relations 1961.

Reference:

1. Edy Suryono dan Moenir Arisoendha. Hukum Diplomatik Kekebalan dan Keistimewaannya, Bandung: Offset Angkasa, 1986;
2. J. G. Starke. An Introduction to International Law. Butterworth: Oxford University Press, 1990;
3. Komang Sukaniasa (et.al). Penyalahgunaan Hak Kekebalan Diplomatik ditinjau dari Konvensi Wina 1961 (Studi Kasus Penganiayaan TKI oleh Pejabat Diplomatik Arab Saudi di Jerman). e-Journal Komunitas Yustisia Universitas Pendidikan Ganesha Program Studi Ilmu Hukum, Vol. 4, No. 2, 2021;
4. S.M. Noor (et.al). Hukum Diplomatik dan Hubungan Internasional. Makassar: Pustaka Pena Press, 2016;
5. Setyo Widagdo dan Hanif Nur Widhiyanti. Hukum Diplomatik dan Konsuler. Malang: Bayumedia Publishing. 2008;
6. Sumaryo Suryokusumo. Hukum Diplomatik Teori dan Kasus. Bandung: Alumni, 1995;
7. Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008.

---

[1] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 3.

[2] Edy Suryono dan Moenir Arisoendha. Hukum Diplomatik Kekebalan dan Keistimewaannya. Bandung: Offset Angkasa, 1986, p. 14.

[3] Edy Suryono dan Moenir Arisoendha. Hukum Diplomatik Kekebalan dan Keistimewaannya. Bandung: Offset Angkasa, 1986, p. 14.

[4] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 6.

[5] Edy Suryono dan Moenir Arisoendha. Hukum Diplomatik Kekebalan dan Keistimewaannya. Bandung: Offset Angkasa, 1986, p. 14.

[6] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 7.

[7] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 8.

[8] Komang Sukaniasa (et.al). Penyalahgunaan Hak Kekebalan Diplomatik ditinjau dari Konvensi Wina 1961 (Studi Kasus Penganiayaan TKI oleh Pejabat Diplomatik Arab Saudi di Jerman). e-Journal Komunitas Yustisia Universitas Pendidikan Ganesha Program Studi Ilmu Hukum, Vol. 4, No. 2, 2021, p. 158.

[9] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 136.

[10] Sumaryo Suryokusumo. Hukum Diplomatik Teori dan Kasus. Bandung: Alumni, 1995, p. 4.

[11] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, pp. 118-119.

[12] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 147.

[13] Setyo Widagdo dan Hanif Nur Widhiyanti. Hukum Diplomatik dan Konsuler. Malang: Bayumedia Publishing, 2008, pp. 83-84.

[14] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 147.

[15] S.M. Noor (et.al). Hukum Diplomatik dan Hubungan Internasional. Makassar: Pustaka Pena Press, 2016, p. 41.

[16] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 148.

[17] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 148.

[18] Syahmin. Hukum Diplomatik dalam Kerangka Studi Analisis. Jakarta: PT Raja Grafindo Persada, 2008, p. 148.

[19] J. G. Starke. An Introduction to International Law. Butterworth: Oxford University Press, 1990, p. 197.