CHAPTER I

A. Context Of Study

In the international society, each state will need to conduct a relationship or

interaction with each other. Basically, the main objective and the tendency of a

state to conduct international relations is to protect and promote the interests of

the state. In addition, the intensity of a state held a relationship with another state

will directly impact to the existence of a state in the international community.

Relation among the independent state is the basic aspect of governance, there is

always growing demand from countries to establish a framework that defines the

manner in which these states relate and co-work in their day to day activities.1

There are several methods that can be done by state in conducting the

international relation, the most popular one is diplomacy.2 So far, diplomacy is

the primary method to conduct international relations which are the most

frequently performed by a state. Ian Brownlie (1979) stated that diplomacy

comprises any means including maintain mutual relations, communicate with

each other, and carry out political or legal transaction though their authorized

agents.3 In addition, diplomacy carried out not only to achieve the personal

1 Custom Vienna Convention on Diplomatic Relations 1961 essay paper writing service, http://www.essaysprofessors.com/samples/Analysis/Vienna-convention-on-Diplomatic-relations-1961.html , October 4, 2012, 22.22 pm

2 Michael B. McDonough (1997) defined Diplomacy as the conduct of relations between Nation-States through their accredited officials for the purpose of advancing the interests of the appointing State. See Michael B. McDonough, 1997, “Privileged Outlaws: Diplomats, Crime and Immunity” , 20 Suffolk Transnat'l L. Rev.475. p.475

3 Ian Brownlie, Priciples of Public International Law, Oxford University Press, 1979, 3rd edition , p.345

1

objective of a state, but diplomacy also serves as a way to maintain balance and

peace of the international order.4

As the implementation of diplomatic relations among states in order to

minimize deviations, it is necessary to set up the provisions or the legal principles

that govern diplomatic relations among the countries on the basis of mutual

agreement. 5 Even far before the modern states exist, diplomatic relations

practices have been first applied in the time of ancient India. During such ancient

era, principles and regulations that govern the relationship between the kings or

kingdoms have been familiar with the term "ambassador".6 Likewise, during the

development of diplomatic law in Europe, in 1815 the Vienna Convention

changed the Protocol "Aix La-Chapelle" which will be a new milestone in

modern diplomatic developments. Furthermore, on the initiative of the United

Nations, the conference on diplomatic relations in Vienna in 1961 was held to

discuss the design of a convention that governs diplomatic relations and also

covers diplomatic immunity and privileges.7 Eighty-one states attended the

Vienna Conference and they reached an agreement that governed almost all

aspects of diplomatic activity. The basic purpose of Vienna Convention which

4 Devi Apriyanti, Definisi, Tujuan, Metode dan Instrumen Diplomasi, http://deviapriyanti158.blogspot.com/2012/06/definisi-tujuan-metode-dan-instrumen.html , October 4, 2012, 21.20 pm

5 Setyo Widagdo and Hanif Nur Widhiyanti, Hukum Diplomatik Dan Konsuler, 1st

Edition, Bayumedia Publishing, Malang, 2008, p.66 Syahmin AK, Hukum DIplomatik Suatu Pengantar, 2nd Edition, Armico, Bandung, 1988,

p.167 Setyo Widagdo and Hanif Nur Widhiyanti, op. cit., p. 12

2

was resulted at that time is to promote the development of friendly relations

among nations, despite differing constitutional and social systems.8

Fifty years after the enactment, Vienna Convention was felt less able to

accommodate demand that governs diplomatic practice which was increasingly

complex year by year. Some opinions and critics drawn to the existence of Vienna

Convention which is no longer relevant to the current conditions in the granting

of privileges and immunities are considered as action that might threaten the

rights and interests of the receiving state. Privileges and immunities of the

diplomats as regulated in Vienna Convention got concerns from international

community since it deals with the human right violation and about the abuse of

immunities issue.9

In February 1973, there was case of Iraq Embassy in Islamabad. The incident

began when a container that was addressed to the Iraqi Embassy in Islamabad

accidentally was damaged. As the result Pakistani customs officials revealed that

59 crates which was filled with weapons, explosives materials and ammunition

that will be received by the Belouchistan Rebels. Then, Pakistani government

informed the case to the Ambassador of Iraq. It was proved that the weapons were

8 Amy Zeidman, “ Abuse of The Diplomatic Bag: A Proposed Solution”, 11 Cardozo L. Rev. 427. p.427

9 Jawahir Thontowi, 2011, ”Urgensi Amandemen Konvensi Wina 1961 Tentang Hubungan Diplomatik dan Alternatif Penyempurnaan Lainnya”, presented in Panel Discussion about Vienna Convention in 1961 and 1963 Granting Diplomatic Privileges Right and Immunities, held in cooperation with the Indonesian foreign ministry with the Faculty of Law, Islamic University of Indonesia, Tuesday, October 4, 2011, Faculty of Law Islamic University of Indonesia, Jl. Taman Siswa 158. Yogyakarta. p. 1

3

imported by diplomatic immunity and privileges in to Pakistan which was then

stored at the Embassy of Iraq. Therefore, Government of Pakistan asked for

permission to examine it. Although Iraq's Ambassador rejected it, Pakistani police

had been given orders to keep checking those crates with the presence of Iraqi

ambassadors and they found the weapons in storage. As the result, Government of

Pakistan had protested against the Government of Iraq and declared persona non

grata to the Iraqi ambassador.10

In 2001, a Russian diplomat to Canada caused an automobile accident which

killed one pedestrian and left another severely injured. The diplomat was drunk at

the time and had been stopped for drunk driving twice in the past by Canadian

police who were unable to prosecute him. Canada requested a waiver of his

immunity but was turned down. Although Russia did not waive his immunity

under Article 32 of Vienna Convention 1961, they did agree to process him

through their own system pursuant to the provision found in Article 31.

Eventually, he was sentenced to four years in a Russian prison for involuntary

manslaughter. 11

Then there was one case that harmed to Indonesian citizens who worked in

Germany as a housekeeper for a diplomat of Saudi Arabia. This case occurred in

10 Nizzar Fikkri, Tinjauan Yuridis terhadap Kekebalan Gedung Diplomatik (Studi Terhadap Kasus Kedutaan Besar Irak di Islamabad Februari 1973 , http://nizarfikkri.blogspot.com/2011/12/tinjauan-yuridis-terhadap-kekebalan.html, October 19, 2012

11 William G. Morris, “Constitutional Solutions to The Problem of Diplomatic Crime and Immunity”, 36 Hofstra L.Rev.601. p 604-605

4

2011 when an Indonesian maid filed a claim before the labor court in Berlin

because she was treated like a slave and she did not get paid besides she got

harassment and intimidation. This issue should be brought to trial because it dealt

a human rights violation that has been committed by diplomat of Saudi Arabia.

However, Berlin Regional Labor Court judges rejected the claim and decided to

charge the court costs to the housekeeper as the plaintiff. Regional Labor Court

Berlin said Dewi’s claim was legitimate, but nothing could do over the case. The

court could not deal with a criminal case against members of the diplomatic

corps. For hundreds of years, diplomats have enjoyed immunity, and such

immunity "cannot be revoked" by the judge.12 The story of one of the Indonesian

workers who was not properly treated and their rights have been violated is just

one of many cases in which on many occasions there are many diplomats who

abuse their diplomatic immunity to escape from the law.

The privileges and immunities provision has been clearly stipulated in 1961

Vienna convention based on several principles, namely Exterritorialy Theory,

Representative Character Theory, Theory and Functional Necessity. However, the

privilege which was obtained by a Diplomat, especially regarding the immunity is

felt perceived by the individual, rather than by the sending state though.13

Considering the issue on the privileges and immunities that can be abused by

12 Penyiksa TKW Lolos karena Imunitas Diplomatik, http://internasional.kompas.com/read/2011/11/14/1249191/Penyiksa.TKW.Lolos.karena.Imunitas.Diplomatik , October 2, 2012 , 13.00

13 Martin Dixon, International Law, Fourth Edition, Blackstone Press Limited, United Kingdom, 2000, p.189

5

diplomats and mistakes that led to the moral outrage of the society, there should

be limits on the privileges and immunities which eventually brought some experts

spoke for the amendment over the 1961 Vienna Convention on diplomatic

relations.14 Furthermore, from the point of view of the receiving state, the

privileges and immunities that belong to diplomats can threaten the rights and

interests of the receiving state. It should be noted that the nature of a rule is

responsive to change. Therefore in this case, there is a huge possibility that the

Vienna convention needs to be amended which will be followed up with an

amendment on the some stipulation in that instrument.

On the other hand, there is a contradictive opinion on the proposed

amendment over the Vienna convention 1961. It needs to be considered if the

amendment is necessary because there is no guarantee that practically the

amendment is effective and efficient. In most cases the removal of the privileges

and immunities of the diplomatic missions of the receiving state may offend the

sending countries. In diplomatic practice, there is implementation of reciprocity

principle. Therefore, sometimes diplomacy is more determined by the fear if

receiving countries take revenge against their state representatives in the receiving

state.15 In this case, the challenges towards the proposed amendment are not only

facing the difficulty over the procedures and mechanisms of the amended article,

14 Veronica L. Maginnis,” Limiting Diplomatic Immunity: Lessons Learned from The 1946 Convention on The Privileges and Immunities of The United Nations” , 28 Brook. J. Int'l L.989

15 Jawahir Thontowi, Op.cit. p. 2

6

but also must deal with state policies that have the sovereign right to determine

the reciprocal response. It can ultimately affect effectiveness of implementation of

amended Vienna convention.

Idea of amendment 1961 of Vienna convention on diplomatic relations was

always interesting to talk about. It is classified as old diplomatic legal instruments

that deal with diplomatic practices which grows with complexity as performed by

many countries. The urgency of Vienna convention amendment is important to be

researched because the Vienna convention has now been deemed irrelevant to

adjust overall practice of diplomacy among countries in the world. In many cases

that arise from the diplomatic practice, the receiving state has always been a party

that is always injured either directly by a state's sovereignty or against its own

citizens. The study about this issue is needed as the response to demands for the

amendment of Vienna convention 1961 regarding the protection of the rights of

the receiving countries. This research explored further about the urgency of

amendment of 1961 Vienna Convention on Diplomatic Relations of 1961.

A. Statement of Problem

How urgent is Amendment of Vienna Convention 1961 on Diplomatic

Relation that related to the protection of Receiving State?

B. Objectives of Study

7

The aim of this study is to find out the urgency of amendment of Vienna

Convention 1961 on Diplomatic Relation 1961.

C. Definition of Technical Terms

The terms which were used in this thesis were clearly explained to make the

analysis understandable.

Definition of urgency when viewed from the origin in the Latin word

"urgere" is a means to encourage, and when seen from the English language

called "urgent" that has meaning and the adjectives in the Indonesian language

"urgency" is categorized as a noun. Urgency term refers to something that drives

us, forcing us to be solved or resolved, thus presumes there is a problem and

should be settle immediately.16

Amendment can be define as the changes in the legal documents created by

adding, changing, or removing certain parts or terms and then signed by all parties

concerned while maintaining the legal validity of the original document.17 The

mechanism of amendment of treaty is governed at the Vienna Convention 1969

on Law of Treaties. Vienna Convention 1969 provides flexibility to the all

contracting parties of treaty to make a revise or amendment if it’s deemed

necessary as long as it is notified by the all contracting parties.

16 Reska Tania Apriadi, Definisi Urgensi, http://blog.bestlagu.com/pengertian-urgensi, accessed November 13 2012, 21:08

17 Business Dictionary, http://www.businessdictionary.com/definition/amendment.html, accessed November 13, 2012

8

Protection of receiving countries will be focused on the protection of the

rights and interests of receiving countries. It is related to the implementation of

the rules and provisions regarding the diplomatic law under Vienna convention

1961 on diplomatic relations. Besides regulating the diplomatic immunity which

is acquired by a diplomat, Vienna Convention 1961 regulated also the privileges

rights and inviolability principle that must be respected and fulfilled by the

receiving countries. Some basic principles are applied for diplomatic immunity

and inviolability has become the key issues that are as disturbance against

perceived the interests of the receiving state.

Diplomatic Immunities can be defined as the immunities from local

jurisdiction which is enjoyed by diplomat agents in doing their work and

maintaining their dignity as persons representing one national state. The sending

government and another normally referred to as the receiving government.18

Inviolability is the immunity from the intervention of receiving state and

immunity against all harmful interference. It implies definition that the diplomats

have the right of protection from the intervention of receiving state.19 The

inviolability consists of some aspect, such as:

18 N.M.Abdulraheem, “Privileges and Immunities Diplomatic in Nigeria: Limitations and Waivers”, http://www.unilorin.edu.ng/publications/abdulraheemnm/PRIVILEGES_AND_IMMUNITIES_OF_DIPLOMATIC_IN%20NIGERIA_LIMITATIONS_AND_WAIVERS.pdf , October 9, 2012

19 Bambang Prayitno, Perbedaan Kekebalan, Keistimewaan dan Kemudahan staf diplomatic, Staf Administrasi dan Staf Teknik Perwakilan Diplomatik, Staf Pelayanan, dan Staf Pelayan Pribadi, http://prayitnobambang.blogspot.com/2011/11/perbedaan-kekebalan-keistimewaan-dan.html , October 9, 2012

9

a. Inviolability of the premises and the private residence of Diplomatic

Mission

b. Inviolability of the Diplomatic Bag

c. Inviolability of the mission archives and communication

d. Inviolability not be subpoenaed as witnesses

e. Inviolability not be arrested or detained 20

Based on the principles which has been established in Vienna convention

1961 on diplomatic relations, it will directly disrupt the interests of the receiving

state that obviously has sovereignty and jurisdiction over the territory. Therefore,

the debate on the ability of Vienna convention on diplomatic relations 1961 to

accommodate the protection of receiving countries has become a global issue that

draws concerns from many experts.

D. Literature Review

Vienna Convention 1961 is a treaty which gives a framework that governs

diplomatic relations among different independent states in the world. The Vienna

Convention provides a complete framework for the establishment, maintenance

and termination of diplomatic relations on a basis of consent between independent

sovereign States. It consist of some important provisions, they are:

a. It specifies the functions of diplomatic missions, the formal rules

regulating appointments, declarations of persona non grata of a diplomat who has

in some way given offence, and precedence among heads of mission.

20 Article 24, 27, 29, and 31 Vienna Convention 1961 on Diplomatic Relation

10

b. It sets out the special rules about the privileges and immunities which

enable diplomatic missions to act without fear of coercion or harassment through

enforcement of local laws and to communicate securely with their sending

Governments.

c. It makes provision for withdrawal of a mission which may take place

on grounds of economy or physical security

d. It also provides provision for breach of diplomatic relations which

may occur in response to abuse of immunity or severe deterioration in relations

between sending and receiving States.

e. There are some provisions also govern about these cases where

permanent missions have not been established.

f. It also contain a framework is provided for the interests of each

sending State to be protected in the receiving State by a third State.21

Among the sets of regulation on Diplomatic practices in Vienna Conventions

1961 on Diplomatic relations the issue about entitlement to of diplomatic

privileges and immunities of diplomats is under the spotlighted. Granting

immunity, privileges and rights for diplomats have long been practiced since

ancient roman times, and it was developed into a customary law that eventually

was adopted into the rules and regulations as written in the 1961 Vienna

Convention on diplomatic relations.

21 Audiovisual Library of International Law, http://untreaty.un.org/cod/avl/ha/vcdr/vcdr.html, October 19, 2012

11

In general, diplomatic immunity and privileges can be categorized into two

aspects, namely Immunity and inviolability.22 Inviolability is immune from the

instruments of power or the apparatus of the receiving state and immunity to all

kinds of harmful interference that implies the right to be protected from the

instruments of power receiving countries.23 Meanwhile, Immunity can be

interpreted as immunity to the jurisdiction of the receiving state, either criminal or

civil law.24

The concept of diplomatic immunity can be traced back from ancient times.

During ancient era, the ambassadors who were sent by one state to another state

had been considered as bearer of sacred mission.25 Because of the sacred nature, it

was believed that such sanctity was owned by an ambassador. As the result,

diplomatic privileges and immunities later became common practices and marked

as the beginning of the rules and regulations regarding diplomatic privileges and

immunities in the world.

In the 16th century when the exchange of ambassadors among the

independent European countries had become common practices, diplomatic

22 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, RajaGrafindo Persada, Jakarta, 2008, p.118-119

23 Setyo Widagdo, Masalah-masalah Hukum Internasional Publik, 1st Edition, Bayumedia Publishing, Malang, 2008, p.98

24 Ibid.25 Sumaryo Suryokusumo, 2005, Hukum Diplomatik Teori dan Kasus, 1st edition, Alumni,

Bandung, p.52

12

immunities and privileges have started to be accepted practices among the state,

also it has been approved by international legal experts.26

UN expert committee stated that the basis for diplomatic immunity and

privileges are as follows:

"The necessity of permitting free and unhampered exercise of the diplomatic function and of maintaining the dignity of the diplomatic representatives and the state roommates he represent, and the respect properly due ... traditions." 27

Therefore, granting those rights based on the principle of reciprocity and the

principle of inter-state and is required, in order to:

a. Developing friendly relations among nations without distinguishing the

state system and social systems of different cultures.

b. Ensuring the implementation of the efficiency of task of diplomatic

officials, especially for the task of the state they represent.28

Diplomatic immunity does not only ensure the efficient function of

diplomatic missions in foreign states, but also foster to goodwill and enhances

friendly relations among nations.29

Furthermore, there are some theories of justification for granting the

Diplomatic Immunity and Privileges, they are:

a. Exterritorial Theory

26 Setyo Widagdo and Hanif Nur Widhiyanti, 2008, Op.cit, p.69 seen also Sumaryo Suryokusumo, 2005, Op.cit, p.50

27 Sumaryo Suryokusumo, Diplomatic Law Course, October 13, 1984, Magister Degree Law Faculty Padjadjaran University , p.26 in Syahmin AK, Hukum Diplomatik Suatu Pengantar, 2nd Edition, Armico, Bandung, 1988, p.72

28 Ibid.29 Eric C. Surette, J.D, “Privileges, Immunities, and Disabilities” , September 2012, 3 B

C.J.S. Ambassadors & Consuls. 12, p.12

13

This theory believes that although the diplomats practically are in the

territory of receiving state, principally they should be presumed to exist outside

the territory of the receiving state and treated as if they are still living in the

sending state. 30

Sir Gerald Fitzmauricie has clearly explained that:

“ Exterritorialy which implies that the premises of a mission in theory are outside the territory of the receiving state and represent a sort of extension of the territory of the sending state. “31

It means according to Exterritorialy Principle that the premises of the mission

and the private residence of diplomat are considered to be outside the territory of

the receiving because they are viewed as extension of the sending state territory.

Therefore, the diplomats are not subject to the laws of the receiving state, it also

implies that they cannot be controlled by receiving state law and they are not

subject to receiving state legal jurisdiction.32

b. Representative Character Theory

In this theory, diplomats are considered as a symbol of the sending state as

well as the representative of the sending state in the receiving state. Therefore, all

diplomatic actions which are taken by Diplomat should be regarded as an action

30 Widodo, Hukum Diplomatik dan Konsuler pada Era Globalisasi, Laksbang Justitia, Surabaya, 2009, p.78

31 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit. p.7432 Ibid.

14

of the Head of sending state or at least regarded as reflecting the will of sending

state.

c. Functional Necessity Theory

This theory is based on granting rights to diplomatic representatives that its

function is so that it can function correctly and perfect. The immunities and

privileges they earn is to provide greater opportunities in order to carry out

diplomats duties without any interference and pressure.33 This theory is the most

widely adopted theory in the case of a justification for the granting of privileges

and immunity to diplomats. Therefore, they can perform their duties effectively

and efficiently. International Law Commission has also adopted the theory of

functional necessity in solving problems when in practice there is no clear

provision besides considering the nature of chief of the mission and the

representatives.34

Furthermore, the granting of diplomatic privileges and immunities as

provided in the 1961 Vienna convention also grows controversial sentiment.

Besides being the world's concern, the global issue of human rights is also

associated with granting full immunity which is deemed not in accordance with

human right principles. Some basic rules in Vienna convention are deemed no

longer able to accommodate the interests of the receiving state. It is important to

33 Syahmin AK, Op.cit, p.7134 Yearbook of International Law Commission ( ILC ), 1958, p.94-95 in Sumaryo

Suryokusumo, Op.cit p.60

15

analyze the relation between immunity and inviolability of diplomat that might

disrupt the interests of the receiving state which obviously has sovereignty and

jurisdiction over the territory. The settings in Vienna convention seems create

loophole for the possibility of abusing such privileges which might be committed

by diplomats as happened in most cases. On several occasions, violation and

abuse of diplomatic immunity and privileges bringing harm to the receiving state.

Basically, the immunity which is granted to diplomatic agents is needed for

the performance of their duty that should be free from the jurisdiction and control

of the receiving state. It was stated in the preamble to the Vienna Convention on

diplomatic relation 1961.

"The purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the function of diplomatic mission in Representing states"35

In fact, the privileges and immunities of diplomatic are often used as a shield

by a diplomat in order to escape from the law of the receiving state. Although, the

main purpose of the immunity and privileges is to carry out the designated

functions on behalf of the state, it is generally known that diplomatic immunity

and inviolability are personal in the sense that they are enjoyed by individuals,

rather than the state itself.36 Meanwhile, receiving state is under certain

obligations to protect the diplomat and his properties in order to carry out his

35 Preamble of Vienna Convention 1961 on Diplomatic relation36 Martin Dixon, Op.cit , p.189

16

functions effectively. By enjoying such privileges and immunity right, the

diplomat the receiving state have no control at all toward the diplomats even if

they have committed certain abuse or crimes.

Diplomatic law recognized an exception; the receiving state has rights to

request the waiver of immunity. It is an established practice that the immunity

from the jurisdiction of diplomatic agents may be waived by the sending state. In

practice, when the immunity of diplomatic agents have been waived by the

sending state, their immunity will immediately ceased and become the ordinary

person without any forms of immunities. Because of the diplomatic immunity

deal with the immunity of his government, it is become the authority of sending

state to decide whether the immunity of diplomatic agents need to be waived or

not in particular case. The diplomat cannot waive his immunity without the

permission of the government of sending state, and cannot object if his

government decides to waive his immunity. Waiver must always be expressed.

However, some scholar still think that the waiver of immunity is not enough

to accommodate the interest of the receiving state because it deals with the policy

of sending state whether the government of sending state will approve the waiver

request from receiving state or not. It is generally recognized that the only thing

that can be done by the receiving without the consent of the sending state

diplomat is persona non grata, it will make him no longer recognized as a

17

member of the mission.37 When the receiving state decides to declare persona non

grata, it will have a direct impact on of diplomatic relations between the two

countries because the Diplomatic law recognizes the principle of reciprocity.

The regulation of some of the basic principles of law such as the provision of

diplomatic immunity and privileges is deemed no longer relevant to the emerging

discourse for amending the Vienna convention 1961. According to Prof. Jawahir

Thontowi, a regulation either national or international law has the nature

responsive to change. Therefore, in this case the Vienna convention is open to be

revised or improved.38

However, the amendment is not easy to do as it requires deep consideration

and approval of many parties. Basically, the mechanism of an amendment to the

agreement depend on the agreement of the parties. Regarding changes or

amendments to this multilateral agreement, it does not require an initiative of all

States parties to the agreement. Nevertheless, any proposed changes either in the

form of amendments or revisions shall be communicated to all States and all

parties are entitled to participate in making decisions about the continuation of the

proposed amendments.39 This is actually the problem, because there will be a lot

of parties with their respective interests who might argue against such discourse.

37 Kejahatan dalam Masyarakat dan Upaya Penanggulannya, http://siskapuspitaningtyas.wordpress.com/ October 9, 2012 , 9:59 pm

38 Jawahir Thontowi, Op.cit, p.139 Hukum Perjanjian Internasional : Amandemen dan Modifikasi Terhadap Perjanjian,

http://kuliahade.wordpress.com/2010/06/24/hukum-perjanjian-internasional-amandemen-dan-modifikasi-terhadap-perjanjian/

18

E. Research Method

1. Object of Research

Urgency of amendment Vienna Convention 1961 on diplomatic relation

related to the protection of receiving state

2. Legal Materials

a. Primary Legal Material: Vienna Convention 1961 on Diplomatic

Relation

b. Secondary Legal Materials: Books and journal on Diplomatic Law

concerning Urgency of amendment of Vienna Convention and Receiving State

Protection.

3. Method of Gathering Legal Materials

The method for obtaining the materials was by using library studies and

documentation. The collected data were from book that related to the urgency of

Vienna amendment related to the protection of the receiving state.

4. Approach Method

This thesis used the statute approach by analyzing the problems from the

point of view of legal regulation, decrees and rules.

5. Method of Legal Materials Analysis

The method for analyzing materials used the descriptive qualitative method.

The obtained data way descriptively presented and analyzed in accordance to the

regulation, decrees and rules that related to the urgency of amendment of Vienna

Convention 1961 and the protection of receiving state.

19

CHAPTER II

A. Vienna Convention 1961 on Diplomatic Relation

1. Historical Background of Vienna Convention 1961

The rapid development of science and technology has triggered the

interaction among the states of the world to be more intense. It has been realized

that the interaction with other nations is a demand. Relations between nations are

not only intended to protect the interests of the state and its citizens, but also to

strengthen the security of a nation.40 Basically, there are several ways that can be

used by a state to hold international relations, but the oldest and most commonly

used is diplomacy.41 Diplomatic relations and diplomatic mission is established

40 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.1341 J. Frankel (1980) has divided the means of organizing international relations into 4

types, including: diplomacy, propaganda, economic and military cooperation. See in I Wayan Suyadnya, Hubungan Internasional, Pengertian, Pola, Arti, http://wayansuyadnya.wordpress.com/1-1-hubungan-internasional-pengertian-pola-arti-penting-dan-sarananya/ , accessed November 27, 2012, 8:05 pm

20

depends on the mutual consent of the state concerned.42 At present, almost all the

countries represented in the foreign countries by diplomatic envoys with staff of

the mission. In line with the developments that have occurred for hundreds of

years, the diplomatic representative agencies play an important role in conducting

inter-state relations.43 Politically, practice of diplomacy is to support the

implementation of a state policy and foreign relations that devoted to the national

interest, especially for the sake of development in all aspects.44 Furthermore,

diplomacy can enhance the role and image of the state itself in international

forums and inter-state relations, including capturing the trust of the international

community.

History has recorded and proved that long before the nations of the world

have known and practiced diplomatic relations. In the era of Ancient India, it has

been recognized the provisions and rules governing the relationship among the

kingdoms. Since the implementation of the relationship among the kingdoms, it

was started to be recognized what it called "Ambassadors".45 As well as the

42 Article 2 of Vienna Convention 1961: “ The establishment of diplomatic relations between states and of permanent diplomatic missions, takes place by mutual consent

43 J.G. Starke, Pengantar Hukum Internasional, Tenth Edition, Sinar Grafika, Jakarta, 2000, p. 563

44 Sir Ernest Satow (1979) defined the diplomacy as the application of intelligence and tact to the conduct of official relations between the governments of independent states, extending sometimes also to their relations with vassal states; or, more briefly still the conduct of business between states by peaceful means. See Sir Ernest Satow, 1979, Satow’s Guide to Diplomatic Practice, Fifth edition, Longman Group, New York, p.3

45 Ali Sastroamidjojo, Pengantar Hukum Internasional, Bhratara, Jakarta, 1971, p.165 in Syahkim AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.13. Seen also, B.Sen, A Diplomatic’s handbook of International Law and Practice, 2nd Edition, Martinus Nijhoff Publishers, The Haque/ Boston/London, 1979. P.14

21

exchange of ambassadors to foreign countries, it has been implemented in

Indonesia and other Asian countries including Arabs far before western countries

recognize it.46 In European continental, the sending and placement of ambassadors

were governed by customary law started from the 16th century. However, the

emergence of permanent diplomatic missions as distinguished from temporary

diplomatic missions just began since the seventeenth century.47 While the

exchange of permanent diplomatic mission was becoming general practice, their

role in conduct also was steadily increasing.48 The rights, duties, and privileges

owned by the diplomatic mission continue to develop according to the custom in

the eighteenth century. Finally, in the nineteenth century an agreement on the

issue of diplomatic right and privileges was reached. 49

It has been recognized that to ensure the implementation of diplomatic

relations required a regulation containing the legal principles and provisions

govern about diplomacy that can be used as guidelines for the diplomatic relations

in order to perform optimally and efficiently. The regulation about the diplomatic

relations started to be discussed at the Vienna convention in 1815 which was

finally agreed on a diplomatic rank classification. Then, the rule was amended by

46 Ibid47 J.G. Starke, Op.cit.48 Ludwik Dembinski, Modern Law of Diplomacy: External Mission of States and

International Organizations, Martinus Nijhoff Publishers, Dordrecht/Boston/Laschaster/Unitair, 1988, p.4

49 Ibid

22

a protocol "Aix-La-Chapelle" which in fact did not add rules that already exist.50

Essentially, Vienna Congress is a milestone of modern diplomacy because it has

successfully set up and made the principles in a systematic, including general

practice in diplomacy.51

In 1927, the League of Nations made efforts to held codification of the

principles of diplomacy by forming a committee of experts tasked with discussing

the codification of international law, especially the advancement diplomatic law.52

Apparently, the board of the league of nations did not approved the

recommendations of expert committee and ultimately decided not to include these

issues in the agenda of the 1930 Hague conference on the codification of

international law.53 On the other hand, countries American Conference held in

1928 it had discussed issues relating to diplomatic relations as an important issue.

The Conference then adopted two conventions, they are: Convention on

Diplomatic officials and the Convention on Consular. The Convention then

50 In Vienna Convention 1815, the diplomatic rank classification consist of : Ambassadors and Legates, Minister Plenipotentiary and Envoys Extraordinary and Charge d’affaires . As it was amended by protocol Aix-la-Chapelle there was an additional rank as the Minister Resident was filling the third rank . The classification of diplomatic rank after the amendment by the protocol of Aix-la-Chapelle became Ambassadors and Legates, Minister Plenipotentiary and Envoys Extraordinary, Minister Resident, and Charge d'affairs. See in Sumaryo Suryokusumo, Op.cit, p.8-9

51 Ali Sastroamidjojo, Op.cit, p.166 in Setyo Widagdo and Hanif Nur Wihiyanti, Op.cit, p.9

52 Codification can be interpreted as more precise and systematic formulation of the rules of international law in various aspect that were already widely into practice, examples, and state doctrine. See in Article 15 of International Law Commission Statute

53 At that time, the expert committee formed league of nations report about the urgency of the problems related to diplomatic law covering various aspects of diplomatic relationships among countries governed internationally. See in Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit. p. 10

23

considered to have successfully conducted a preliminary effort which were very

important of diplomatic law codification.54

After the establishment of the United Nations in 1945, the development of

the codification of international law including diplomatic law is begun intensively

discussed by the international law commission. In 1947, International Law

Commission set up by the United Nations General Assembly, on the mandate of

Article 13 of the UN Charter states that:

1.The General Assembly will conduct an investigation and submit proposals with a view to:

A. promotes international cooperation in the fields of politics, and encourages the improvement and progressive development of international law and its codification;

B. promotes international cooperation in the economic, social, cultural, educational, and health fields, and help to improve understanding of human rights and fundamental freedoms for all human beings without any discrimination of nationality, race, gender, nation, or religion.”55

Commission on International law stipulates fourteen topic areas which also

includes diplomatic relations, especially regarding diplomatic immunity and

privileges.56 Drafts which was produced by the International Law Commission

was the guides between fact that exist in international law (de lege lata-) and the

suggestions for development (de-lege-ferenda).57 If any draft examined by an

international conference, usually draft will undergo changes which are

54 Ibid. p.10-1155 Article 13 of United Nations Charter56 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.16 57 Sumaryo Suryokusumo, Op.cit, p.13

24

substantial.58 However, before the draft shall be submitted to all member

governments to obtain feedback, both during the discussion in the commission of

international law as well before being submitted to the UN General Assembly.59

Practically, both codification and development progress essentially interrelated

and cannot be separated each other.60

Finally, in 1961 at the initiative of the UN General Assembly held an

international conference entitled "The United Nations Conference on Diplomatic

Intercourse and Immunities". 61 The convention held from 2 March to 14 April

1961 which was conducted in the city of Vienna. Vienna conference produced

some Instruments, including:

a. Vienna Convention on Diplomatic Relations

b. Optional Protocol Concerning Acquisition of Nationality

c. Optional Protocol Concerning the Compulsory Settlement of Disputes

58 Ibid.59 Ibid.60 N.A. Maryan, International Law, Law of Peace, Mac Donald and Evans Ltd, London,

1973, p.26-27 in Sumaryo Suryokusumo, Op.cit, p.1361 1961 Vienna Convention accepted by 72 countries, no one refused and only one state

abstained. On 18 April 1961 representatives of 75 countries signed the convention consisting of the preamble, 53 articles, and 2 protocols. On 24 April 1964, declared the Vienna Convention into force, and now almost all countries in the world have ratified the convention. See in Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.16

25

Among the three instruments, the 1961 Vienna Convention on Diplomatic

Relations is the most important and primary basis practice of diplomatic relations

among countries.62

2. Stipulation of Diplomatic Law under Vienna Convention 1961

Vienna Convention is an instrument which covers almost all important

aspects of permanent diplomatic relations among countries. Vienna Convention

on Diplomatic Relations came into force on 24 April 1964 and at 1 October there

were 179 contracting parties. The Convention was the outcome of a United

Nations Conference on Diplomatic Intercourse and Immunities 1961 and was

based on a series of Draft Articles prepared by the International Law

Commission. 63

It consists of 53 articles and also 2 optional protocols regarding acquisition

of citizenship and the imperative to resolve disputes, each consisting of 8 and 10

articles. Vienna Convention provides a complete framework for the

establishment, maintenance, and also the termination of diplomatic relations.

Briefly, the articles in the Vienna convention can be mapped into several sections

including:

62 Ibid. 63 Martin Dixon, Op.cit, p.190

26

a. Regulation on the establishment of diplomatic missions, the rights and the

appointment and submission of credentials heads of diplomatic missions (Article

1-19)

b. Regulation of immunity and privilege for diplomatic missions, including a

variety of tax exemption (Article 20-28)

c. The setting of the immunities and privileges granted to diplomats and other

staff (Article 29-36)

d. Regulation of immunity and privileges for family members of diplomatic

agents and service staff who work on them (Article 37-47)

e. Regulation of signing, accession, ratification and entry into force of the

Convention (Article 48-53).64

Vienna Convention also divided the diplomatic staff of a foreign

mission roughly into three categorize, namely:

a. Diplomatic Agent: it means the head of mission or a member of the

diplomatic staff of the mission. For instance, ambassador, attaches, etc

b. Administrative and technical staff

64 Sumaryo Suryokusumo, Op.cit, p.15

27

c. Service Personnel: it can be consist of clerks, messengers, security

guards, chauffeurs, cooks. Actually, this group of personnel are usually local

people which is employed by the embassy.65

B. Diplomatic Immunity and Privileges

1. Definition of Diplomatic Immunity and Privileges

Generally, diplomatic immunity and privileges can be categorized into two

aspects, namely Immunity and inviolability.66 Both, diplomatic immunities and

privileges are the rights obtained by a diplomat while serving in a foreign state to

represent his state. "Diplomatic immunity" in its contemporary aspect may be

broadly defined as the freedom from local jurisdiction accorded under principles

of international law by the receiving state to the duly accredited diplomatic

representatives of other states. 67 C. Wilfred Jenks grouped diplomatic immunity

into the following four categories:

1. Immunity from every form of legal proceedings

2. Inviolability of premises and archives

3. Currency Privileges

65 Muhammad Munir, “A Critical Appraisal of the Immunity of Diplomats in International Law and its Status in Sharia”, Journal of Law and Society Faculty of Law University of Peshawar, 2000, p.30 seen also Article 1 of Vienna Convention 1961 on Diplomatic Relations

66 Syahmin AK, Hukum Diplomatik Dalam Kerangka Studi Analisis, Op.cit, 118-11967 Eric C. Surette, 2005, Applicability of Diplomatic Immunity Under Vienna Convention

and Diplomatic Relations Act, J.D, 1 A.L.R. Fed. 2d351, p.351

28

4. Freedom of communication.68

Sumaryo Suryokusumo (2005) classified diplomatic immunities and

privileges by its nature into three categories:

a. Immunity includes the inviolability of diplomats including his residence

and as specified in Article 29.30, and 41 Vienna Convention 1961, as well as their

immunity from the jurisdiction of administrative, civil, and criminal.

b. Privilege or indulgence granted to diplomats that release them from the

obligation to pay taxes, customs, social security, and individuals such as article

33,34,35,36 of Vienna Convention 1961.

c. Immunities and privileges granted to diplomatic missions is not just about

not bothered buildings of foreign missions in the state, including archives and

freedom of communication, but also freedom from any taxation of the receiving

state as stipulated in article 22, 23,24,26 and 27 of Vienna Convention 1961.69

1. Definition Immunity and Inviolability according scholars:

A. Ian Brownlie

Ian Brownlie (1990:358) explains that the immunity is immunity from the

jurisdiction of the laws of the receiving state so that a diplomatic official is

68 Compilation as drawn from: C. Wilfred Jenks, International Immunities at xxxxvi. (Oceana

Publications, 1961).69 Sumaryo Suryokusumo, Op.cit, p. 69-70

29

immune to all prosecution in the receiving state, this means that a diplomatic

officials will be beyond the jurisdiction of the receiving state.70

B. Liselotte B. Watson

Diplomatic immunity is the term commonly used to describe the rights and

privileges of a diplomatic officer that exempt him from the operation of certain

laws of the receiving state. When they hear the term, most people think of only

one aspect, namely, immunity from the criminal jurisdiction of the receiving

State. But diplomatic immunity covers much more, such as inviolability of person

and residence, immunity from customs and taxes and other matters.71

C. Charles G. Fenwick

Immunity is immune from the jurisdiction of the laws of the receiving state

that have consequences that a diplomatic officials immune from prosecution

receiving countries, thus making an official diplomatic outside the jurisdiction of

the receiving state.72

D. Syahmin AK

Diplomatic immunity is defined as a right that is inviolable (inviolability)

owned by a diplomat in performing duties as a representative of a foreign state

70 Setyo Widagdo, Op.cit, p.10071 Liselotte B. Watson, The Naval Attaché and International Law, 17 JAG Journal 139, p.

14272 Charles G. Fenwick, International Law, 3rd Edition, 1982, p.202

30

power as a guarantee of security and the welfare during the active period on the

basis of reciprocity. 73

E. Departemen Luar Negri Pedoman Tertib Diplomatik dan Protokol II

According to the official instructions issued by the state department, the

diplomatic immunity can be defined as immune from the jurisdiction of the

receiving state, both civil and criminal jurisdiction.74

2. Definition of Inviolability

However the Diplomatic privileges and Immunity not only consisted of the

immunity, but there is one aspect which is attributable toward the diplomatic

representatives namely Inviolability. There are some definition of inviolability,

they are :

A. Setyo Widagdo

Setyo Widagdo defined Inviolability as the immunity owned by a diplomatic

official from the state power apparatus including receiving immunity against all

possible threats from harmful interference. 75

B. Definition inviolability according Vienna Convention 1961

73 Syahmin AK, Op.cit, p. 11974 Departemen Luar Negri Pedoman Tertib Diplomatik dan Protokol II Bp 03-D, 1969 ,

Jakarta, p.38 75 Setyo Widagdo, Op.cit

31

Understanding inviolable set forth in Article 29 of the Vienna Convention

1961, which states "The person of a diplomatic agent shall be inviolable. He shall

not be liable to any form of arrest or detention," meaning that the diplomatic

missions are inviolable.76 He could not be arrested or detained. Thus, within the

meaning of the Inviolability is as immune to the instruments of state power, so

that diplomatic officials or a representative diplomat has the right to not be

subject to any action by state power apparatus in the form of detention or arrest.77

Consequences arise from the special protection stipulated in article 29 of the

Vienna Convention 1961 is the event of an attack on of a diplomatic

representative in the receiving state, the authorities prosecute and prosecute

attackers. This was expressed by Charles G Fenwick in his book entitled

"International Law":

"The person of a public minister is sacred and inviolable. Whoever offers any violence to him, not only affronts the Sovereign he represents, but also hurts the common safety and well-being of nations; he is guilty of a crime against the whole world ."78

According to the statement of by Charles G Fenwick that diplomatic

representation is considered to have sacred properties thus entitled to inviolability.

Furthermore, diplomatic representatives are entitled to the highest respect, even

Charles G Fenwick states that a violation toward the diplomatic representative

means have been abused all over the world. In addition, Inviolability also can be

76 Article 29 of Vienna Convention 196177 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p.10078 Ibid.

32

interpreted as immunity against any harmful interference.79 This is a continuation

of the provisions of article 29 of the Vienna Convention 1961 which states "... The

receiving state ... shall take appropriate steps to prevent any attack on his person,

freedom, and dignity". So, a diplomatic representative has the right to obtain

protection from the receiving state in the form of taking action as deemed

necessary by the receiving state to prevent any attacks on the honor, freedom, and

personal self of a diplomatic representative. It can be concluded that a

representative diplomat immune to any harmful interference.80

The Vienna Convention further provides full personal diplomatic

inviolability, stating simply that "The person of a diplomatic agent shall be

inviolable." The principle of diplomatic inviolability is rooted in the traditional

concept that diplomats, serving in a foreign and potentially receiving land as

surrogates of their sovereign, required appropriate protections, and that any attack

on or offense to them similarly constituted an affront to the ruler they represented.

Inviolability of the diplomat's person therefore became essential in order to allow

the diplomat to perform his or her functions without any hindrance from the

government of the receiving state, its officials, and even private persons.81 As

79 Oppenheim (1955) offered seven principles which went beyond the already accepted personal inviolability of the diplomatic agent: 1) immunity of domicile, 2) exemption from criminal and civil jurisdiction, 3) exemption from subpoena as a witness, 4) exemption from local police regulations, 5) exemption from taxes, 6) the Right of Chapel, and 7) the right of self-jurisdiction as to the envoy's retinue. See in Oppenheim, 1955, International Law, 8th edition,p. 687-757

80 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit81 Eric C. Surette, J.D., “Applicability of Diplomatic Immunity Under Vienna Convention

and Diplomatic Relations Act”, Op.cit, p.365

33

observed by the ICJ in the case concerning United States Diplomatic 41 and

Consular Staff in Tehran.

“……the institution of diplomacy, with its concomitant privileges and

immunities, has withstood the test of centuries and proved to be an

instrument essential for effective co-operation in the international

community, and for enabling states…….to achieve mutual understanding

and to resolve their differences by peaceful means……”82

The privileges and immunities of a diplomatic officer begin from the moment

he enters the territory of the receiving State and end when he leaves it. The

Vienna Convention states that if the functions of a diplomatic officer end while he

is still in the receiving State he shall enjoy the immunities until he leaves the

state, or has had reasonable time to do so.83 It is well to remember that the

privileges and immunities of a diplomatic agent are recognized only in the state to

which he is accredited. If an attaché is accredited to more than one state, which is

frequently done by small nations, unless one of the receiving States objects, he is

in diplomatic status and enjoys all its immunities while in any of the countries to

which he is accredited. Dual or multiple accreditations are normally evidenced by

the visas issued by the receiving States.84

3. Basic Theory of granting the Diplomatic Immunity and Privileges

82 ICJ Reports, 1980, http://www/icj-cij.org/docket/files/64/6291.pdf, accessed December 17, 2012

83 Liselotte B. Watson, Op.cit84 Ibid

34

The provision of immunity and privilege for diplomatic officials is the result

of the history of the practice of diplomacy, where the provision of such regarded

as international customary law. In accordance with the customs rules of

international law, diplomat who are representing their respective countries have a

strong immunity from the jurisdiction of the receiving state. The immunities are

often given clearly in the laws and regulations of the receiving state legislation,

even sometimes receiving countries give greater immunity than specified in

international law.85

Acknowledged diplomatic immunity has existed since the sixteenth century

when it was established in Europe as a result of the common exchange of

permanent ambassadors. During this era, European countries realized that in order

to assure the safety and efficacy of their work, ambassadors needed to be

protected from criminal jurisdiction in the receiving state. Hugo Grotius

expressed the theory of “sacredness of Ambassadors.” Grotius believed that

ambassadors were protected by both “divine and human law” and violation of

such law would “not only be unjust but also impious.86

Immunity from criminal jurisdiction owned by ambassador in the receiving

state has begun to be commonly applied by many countries since the seventeenth

century, it is regarded as international customary.87 In 1706, there had been a case

85 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p. 11686 Rina Goldenberg, “Abuse of Diplomatic Immunity: Is The Government Doing

Enough?”, 1 ILSA J.Int'l & Comp.L, p. 19987 Sumaryo Suryokusumo, Op.cit, p.51

35

in which the Russian ambassador in the United Kingdom was arrested on charges

of fraud. Immediately after the incident, Russian emperor sends an ultimatum to

the English queen that Russia would declare war against the United Kingdom

unless the British government apologized. However, the British Government then

filed draft legislation to the house of parliament, which states "that any foreign

ambassador must be considered sacred and inviolable". 88 In addition, the Act also

contains a provision that exempted diplomats from both civil and criminal

jurisdiction. The document became known as the "7 Anne, Cap.12.2/706", which

later became the basis for the immunity and privileges of diplomats.89

The basic principle underlying the granting of diplomatic immunity to a

diplomatic officer is that of facilitating the performance of the diplomatic

functions of the mission without interference by the authorities of the receiving

state. The Preamble to the Vienna Convention on Diplomatic Relations states that

“the purpose of such privileges and immunities is not to benefit the individuals,

but to ensure the efficient performance of the functions of diplomatic missions as

representing States.” It is therefore well to remember that the privileges and

immunities belong to the sending State and are enjoyed by the diplomatic agent

only to enable him to carry out diplomatic functions as the representative of that

State.90

88 Ibid.89 Ibid.90 Liselotte B. Watson, “The Naval Attaché and International Law”, 1 7 JAG Journal 139,

p. 139

36

The purposes of the doctrine of diplomatic immunity are to contribute to the

development of friendly relations among nations and to ensure efficient

performance of functions of diplomatic missions, so that governments may not be

hampered in their foreign relations by arrest or harassment of, or interference

with, their diplomatic representatives.91 Diplomatic immunity not only ensures the

efficient functioning of diplomatic missions in foreign states, but fosters goodwill

and enhances relations among nations.92 The reason states abide by the

international laws of diplomatic immunity may not even be legally justifiable. 93

Reciprocity, or the fear of retaliation by other states against one's own diplomats,

is a motivation to extend diplomatic immunity to other state's diplomats.94 States

do not want to subject diplomats to the foreign laws of the receiving state, so

nations grant other nations' diplomats immunity in exchange for the same

immunity for its own diplomats.

Expert Committee of the League of nations has stated that the basis of

diplomatic immunity and privileges are as follows:

“ The necessity of permitting free and unhampered exercise of the diplomatic function and of maintaining the dignity of the diplomatic

91 Sumaryo Suryokusumo (2005) stated that 92 Eric C. Surette, J.D, Op.cit, p. 1293 Gregory L. Stangle, “When Diplomacy Meets Illegality: Reevaluating The Need for

The Diplomatic Bag”, 3 Dig. Int'l L.51, p.5494 Reciprocity in diplomatic negotiations is a process of exchange between nations, a

negotiating tool whereby nations bargain with each other for equivalent treatment, See in Encyclopedia of New American Nations, http://www.americanforeignrelations.com/O-W/Reciprocity.html, accessed December 10, 2012

37

representative and the state which he represents, and the respect properly due to traditions.”95

Granting rights and privileges of diplomatic immunity based on the

principles of reciprocity between states is absolutely necessary in order to:

a. Develop friendly relations among nations, irrespective of the constitutional

system of social and cultural systems.

b. Not to meet the interests of individuals, but rather to ensure the

implementation of tasks diplomatic officials to be efficient and maximum.96

Since the sixteenth century it has been widely known that in granting

diplomatic immunity to officials, there are three theories that are often used in the

justification of granting diplomatic immunity, namely:

a. Extraterritoriality Principle

The theory of extraterritoriality suggests that the property of a diplomat and

the person of the diplomat are to be treated as if they exist on the territory of the

sending state.97 Because the diplomat is considered to be living in the sending

state, he remains immune from the criminal and civil jurisdiction of the receiving

95 American Journal of International Law, 1926 Spec. Supp, p.149 in Sumaryo Suryokusumo, Op.cit, p.30

96 Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.7297 Explained further by Alf Ross in "A Text Book of International law", which entitled

Immunity and privileges based on the theory exterritorialy include: Diplomatic envoy, staff of the mission, the members of the Legation roommates is appointed by the state, members of families are living roommates with the head of Legation, Subordinate personnel of the Legation, couriers. See in Setyo Widagdo, Op.cit, p.74-75

38

state.98 The exterritorialy approach to diplomatic immunity adopts the legal fiction

that a diplomat is always on the soil of her native state, wherever she may actually

go.99 The nature of exterritorialy was given to diplomats and representatives based

on the necessity for them to carry out their duties and functions free from state

jurisdiction and control of the receiving state.100

According to the Exterritorialy theory, a diplomatic representative’s subject

only to the laws of the sending state. While, the residence or premises of the

mission is considered part of the territory of the sending state. Sir Gerald

Fitzmaurice stated as follows:

" Exterritorialy which implies that premises of a mission in theory are outside the territory of receiving state and represent a sort of extension of territory of the sending state"101

In other terms, the diplomat and his premises are considered to be an

extension of the sending state, outside of the territory of the receiving state. 102 In

the sixteenth to the seventeenth century, this theory is very common used for

diplomatic immunity and privileges, which diplomatic representatives were

considered not as the legal subjects of receiving state.103

98 Veronica L. Maginnis, Op.cit, p. 99199 Leslie Shirin Farhangi, “Insuring Against Abuse of Diplomatic Immunity”, 38 Stan. L.

Rev. 1517, p.1518100 Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.67-68101 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p.74102 Gregory L. Stangle, op,cit, p.54103 Castel J.G, International Law, Butter Worth, Toronto, Canadian legal Casebook Series,

3rd.ed. 1976, p.627 in Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.70

39

In 1896 in the UK, there was a case where Dr. Sun Yat Sen, who is a Chinese

national political refugees who then hid in the building of diplomatic

representative of China in London.104 When the British government tried to

capture the Sun Yat Sen, it was rejected by the chief representative of China

stated that the diplomatic representative office is Chinese territory and demanded

that Sun Yat Sen freed from prosecution.105 At that time, the People's Republic of

China embassy stated that the immunities and privileges based on the principle

extrateritoriality. It was backed up for several reasons:

1. The diplomats are representatives of the state

2. They are not able to function freely unless they are granted certain

immunities and privileges. That if they continue to depend on "good will" of local

government, they may be influenced by considerations of personal safety;

3. That if there is a disruption in their communication with the governments

of the sending state, their task would not work properly and perfectly.106

Exterritorialy is a broad legal fiction that gained popularity in the sixteenth

century as permanent diplomatic missions with resident ambassadors were

established. 107The state was viewed not so much as monarchical and personal in

nature, but instead as territorial. This shift of political theory necessarily eroded

104 Sumaryo Suryokusumo, Op.cit, p 72-73105 Ibid106 Ibid107 Gregory L. Stangle, Op.cit, p. 54

40

the justification for according the diplomat personal immunity based on his status

as the alter-ego of the sending state.108 In order to replace the alter-ego

justification, the medieval theory stating that the law of one's state follows one

wherever he goes was widely adopted.109

Exterritorialy became the dominant theory throughout the eighteenth century

and became the basis for statutes in the United Kingdom and United States.

Exterritorialy theory literally assumed that embassy premises, grounds and acts

committed by the diplomatic officials as existing outside the territory of the

receiving state and, hence, outside the jurisdiction of receiving state.110 By the

mid-eighteenth century, the shortcomings of literal application became apparent,

as local criminals could flee to diplomatic missions or claim attachment to the

diplomatic representative to avoid prosecution.111 Scholars continued to rely upon

extraterritoriality and to use it to draft codes of diplomatic relations through the

early twentieth century, despite criticism which began appearing at the end of the

nineteenth century. Critics asserted that literal application of exterritorialy created

situations undesirable to receiving states and could bring absurd results if carried

to extremes. 112

108 Ibid109 Ibid110 Stephen L. Wright, “Diplomatic Immunity: A Proposal for Amending The Vienna

Convention to Deter Violent Criminal Acts”, 5 B.U.Int'l L.J.177, p. 185111 Ibid112 Ibid

41

This theory is ironic, considering that the diplomat would not be immune for

the same illegal conduct if committed in the sending state. Not surprisingly, this

theory has been described as a legal fiction, and has fallen out of favor. In fact,

this theory was the dominant theory which usually adopted during the eighteenth

century. Exterritorialy theory was the oldest of the theories, but has received

increasing criticism in recent years. Critics view it as too expansive because it

prevents states from restricting the privileges and immunities of diplomats.113 This

dissatisfaction led an increasing number of states that were avoided to adopt

exterritorialy theory in practice although they were formally adhering to it. Thus,

exterritorialy became a theory which all states acknowledged as forming the basis

of diplomatic immunity, but which none practiced.114 The exterritorialy theory has

fallen into disuse because of its fictional nature and its lack of support in current

thought on the privileges and immunities of diplomats.115

b. Representative Character Theory

Representative character theory is a theory that bases granting privileges and

immunities to the individual legal subject (individual right) as a result of the legal

position representing the state.116 Because the diplomatic representation position

is equated with head of state, then the treatment should be taken with the certain

113 Veronica L. Maginnis, Op.cit, p. 991-992114 Stephen L. Wright, Op.cit, p.185115 Michael B. McDonough, 1997, “Privileged Outlaws: Diplomats, Crime and Immunity”,

Op.cit, p. 478116 Jawahir Tonthowi, Op.cit, p. 5

42

protocol.117 This theory offered to justify diplomatic immunity characterizes a

diplomat as the personification of the sovereign of the sending state.118

Consequently, if diplomats were seen as a representative or the alter ego of head

of state, then they will be entitled to all the immunities and privileges that he

would have enjoyed.119 This theory believes that, by giving the privileges and

immunities to officials of foreign diplomatic means that receiving countries

respect the greatness and sovereignty of the state sending and its head of state.120

Although the representation theory has lost considerable force in the modern

era, however it has not completely been abandoned and some courts persist in

granting diplomatic immunity including in America. They have referred to that

theory for settling both civil and criminal, it based on the notion that the diplomat

is the alter-ego of the sending state.121 The United States Supreme Court explained

representation theory in the 1812 case The Schooner Exchange v. M'Faddon: “the

assent of the sovereign to the very important and extensive exemptions from

territorial jurisdiction which are admitted to attach to foreign ministers, is implied

from the considerations that, without such exemption, every sovereign would

hazard his own dignity by employing a public minister abroad.”122

117 Protocol is the rules of ethics in the diplomatic law and diplomatic practices that are ceremonial including certain formalities. See in Sumaryo Suryokusumo, Op.cit, p.172

118 Lori J. Shapiro, ”Foreign Relations Law: Modern Developments in Diplomatic Immunity”, 1989 Ann. Surv. Am.L. 281,p. 281

119 Martin Dixon, Op.cit, p.190120 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.117121 Gregory L. Stangle, Op.cit, p.54

122 Ibid

43

Thus, the theory of personal representation also fails a modern application.

First, it gives the diplomat more authority than he deserves and thereby

undermines the supremacy of the receiving state. 123 Second, the rise of the

modern system of nations has deprived the theory of much of its validity.124

Representation theory may have worked in the days of single monarchs, however,

the modern democratic system of elected officials and warring political factions

renders it impossible for any individual diplomat to effectively represent one

sovereign.125 Finally, while it offers immunity for official acts, the theory cannot

justify extending immunity to the diplomat as an individual. Lastly, although the

personal representative theory extends immunity to official acts, it offers no

theoretical basis for protecting private acts. Yet the law of diplomatic immunity

has traditionally protected certain private acts. For these reasons, the

representative of the sovereign theory has fallen out of use as a rationale for

diplomatic immunity.126

c. Functional Necessity Theory

This theory is granting the immunity and privileges to the diplomatic

representatives based on the function of these representatives. Immunity and

Privileges granted in order the diplomatic representatives do their function

properly and perfectly, because they have owned the immunity and privileges so

123 Ibid124 Leslie Shirin Farhangi, Op.cit, p.1519125 Ibid.126 Ibid

44

it provides the widest possible opportunity in carrying out the task without

interference.127 Setyo Widagdo (2008) stated that, “a diplomatic envoy couldn’t

fulfill his responsible function if he and the members of his family and staff were

not protected from all kinds of pressure and violation on the part of the population

and authorities of state in which he reside.”128

Immunity and privileges to diplomats in order to perform its functions well

set up and recognized in article 27 paragraph 2 of Vienna Convention 1961. In the

article explains that all correspondence relating to the affairs of diplomatic

missions agency is inviolable.129 Contact was made to relate these to the

communication by correspondence or electronic media with other diplomatic

representatives is left widest.130 Thus, in the third paragraph of preamble of

Vienna Convention 1961 there is statement which supported the theory of

functional necessity as the basic of granting diplomatic immunity and privileges.

It stated that, “… the purpose of such privileges and immunities is not to benefit

individuals but to ensure the efficient performance of the functions of diplomatic

missions as representing state”.131 The above provision suggests a basis for

diplomatic immunities. That they are needed for the efficient performance of

127 Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.71128 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p. 78129 Article 27 clause 2 of Vienna Convention 1961: “The official correspondence of the

mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.”

130 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit131 Third paragraph of Preamble of Vienna Convention 1961

45

diplomatic functions and because diplomats are representatives of states.132 After

referring to several things, it can be concluded that the Vienna convention has

adopted the theory of functional necessity.

Basically, the function of diplomatic mission which have been mentioned in

clause 1 of article 3 of Vienna Convention 1961 stated that:

“1.The functions of diplomatic mission consist of inter alia in:

a. Representing the sending state in the receiving state;b. Protecting in the receiving state the interest of the sending state and

its nationals, within the limits permitted by international law;c. Negotiating with the government of receiving state;d. Promoting friendly relations between the sending state and the

receiving state, and developing their economic, cultural scientific relations.”133

The basis of giving immunities is a combination of representational theory as

well as functional theory.134 The preamble of the Vienna Convention refers to

both considerations.135 Starke has rightly stated that the immunities and privileges

of diplomatic agents are primarily based on the need to ensure performances of

the functions of diplomatic missions, and to a secondary degree on the theory that

a diplomatic mission personifies the sending state.136

132 N. M. Abdulraheem, “Privileges and Immunities of Diplomatic in Nigeria: Limitations and waiver”, http://www.google.co.id/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&ved=0CFAQFjAE&url=http%3A%2F%2Fwww.unilorin.edu.ng%2Fpublications%2Fabdulraheemnm%2FPRIVILEGES_AND_IMMUNITIES_OF_DIPLOMATIC_IN%2520NIGERIA_LIMITATIONS_AND_WAIVERS.pdf&ei=QIfIUKbkGpHRrQeX7IHIDw&usg=AFQjCNFWmqWumVfihXcQJW8rxC9arLRUXg&bvm=bv.1354675689,d.bmk

133 Article 3 of Vienna Convention 1961 clause 1134 Tania Sebastian, “Diplomatic Immunity versus Harm to the Individual: An Attempt at

Appraisal”, http://ssrn.com/abstract=2053426135 Ibid136 J.G. Starke, Introduction to International Law, Butterworths, 1989, p.421

46

3. Diplomatic Immunity and Privileges govern in the Vienna

Convention 1961

All provisions regarding political and legal reasons in granting immunities

and privileges to diplomatic officials contained in the 1961 Vienna Convention

which is the result of the codification of international customs.137 In the Vienna

Convention 1961, the immunity and privileges for diplomat representative in a

foreign state essentially fall into three categories:

a. First, the immunity includes the inviolability of diplomats including

his residence as stated in the articles 29, 30, and 41, as well as immune them from

the jurisdiction of either administrative, civil and criminal law (article 31).

b. Second, privileges or concessions given to the diplomats that is the

release of their obligation to pay taxes, customs, social security and personal

(chapters 33, 34, 35 and 36)

c. Third, the immunities and privileges granted to diplomatic missions

not only involve building inviolability of foreign missions in the state, including

archives and freedom of communication, but also freedom from any taxation of

the receiving state (article 22.23, 24, 26 and 27).138

137 Elisabeth Septin Puspoayu, Kekebalan Gedung Perwakilan Diplomatik dalam situasi Khusus (Studi Kasus Kedutaan Besar Libya di London 1984), http://aiuabeth.blogspot.com/2012/05/cobacoba.html accessed on December 7, 2012, 19:27

138 Ibid

47

For more details, about aspects of the privileges and immunity set forth in

Vienna convention in 1961 can be categorized as follows:

1. Inviolability

It shelters the mission and its members from any constraint or coercion

which receiving state, by virtue of its sovereignty, may exercise over all persons,

and object presents anywhere in its territory. Some commentators have used the

words “immunity from coercion” to interpret inviolability.

1.1 Inviolability of Mission Premises

As a necessary incidence to the establishment and functioning of a

diplomatic mission, the premises the mission occupies must be protected from

external interference. The principle of inviolability of mission is clearly stated in

some article on Vienna Convention 1961, which stated:

a. The Premises

Basically the inviolability of the Premises of mission involves two aspects.

The first aspect, it is the obligation of the receiving state to provide full protection

from any disturbance. Receiving State shall take measures to prevent any

interruption to foreign diplomats, both the freedom and the dignity of

diplomats.139 In fact, in the event of extraordinary circumstances such as the

139 William L. Tung, International Law in an Organizing World, Thomas Y. Cromwell Company, New York, 1968, p,263-264 in Sumaryo Suryokusumo, Op.cit, p.70

48

rupture of diplomatic relations or armed conflict between sending and receiving

countries, the obligation to protect the receiving state representatives, including

building and archival property in it. The second aspect, standing premises of the

mission declared itself immune from examination including goods and all files in

it. This provision has been stipulated in article 22 of the Vienna Convention of

1961, which states:

1. The premises of the mission shall be inviolable. The agents of receiving state may not enter them, except with the consent of the head of mission.140

2. The receiving state is under special duty to take all appropriate steps to protect the premises of mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.141

b. Inviolability of Furnishings, Property, and Archive

Inviolability of the premises also include the furnishing and other

property there in and the means of transport of the mission.142 The property is also

presumably including intangible property such as bank account. In line with the

Article 22 paragraph 3 which stated:

(3) The premises of the mission, their furnishings and other property there on and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”143

c. Extra-Territoriality

140 Paragraph 1 of Article 22 of Vienna Convention 1961141 Paragraph 2 of Article 22 of Vienna Convention 1961142 Muhammad Munir, Op.cit, p.42143 Paragraph 3 of Article 22 of Vienna Convention 1961

49

The origin of immunity of the premises may have been a notion of

extraterritoriality, that is, to say that the embassy of a state was regarded as a

piece of the sending state territory. That fiction is abandoned in international

law.144

d. Inviolability of Archives, Documents, Bags, Communication, and

Official Correspondence of the Mission

Diplomatic bag includes a form that must be protected and immune from the

actions state apparatus of the receiver so that immunity and confidentiality can be

completely assured. The provision is important particularly when the documents

of the mission are outside of the premises. The bag cannot be open or detained

unless there are strong grounds that it contains something which is unlawful.145It

is in accordance with the article 24 paragraph 3 and 4, which stated:

3). Diplomatic Bag shall not be opened or detained

“4). The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.”

As governed in the paragraph 2 of Vienna Convention 1961, the official

correspondence with the receiving state or sending state or any individual are also

inviolable. 146 In line with that, the reach the maximum protection of its

144 J. G Starke, Introduction to International Law, 10th Edition, 1991, p.249. Seen also Inggrid Deter, International Law, Stockholm ,p.524

145 Muhammad Munir, Op.cit, p.42146 Article 27 paragraph 2: “The official correspondence of the mission shall be inviolable.

Official correspondence means all correspondence relating to the mission and its functions.

50

correspondence, the Vienna Convention also provides the inviolability granted to

the Diplomatic Courier. The inviolability granted to the diplomatic courier stated

in Article 27 of Vienna Convention paragraph 5, stated:

5). The diplomatic courier, who shall be provided with an official document indicating his status and the number of packages constituting the diplomatic bag, shall be protected by receiving state in the performance of his functions. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.147

2. Inviolability of the Mission Members

2.1 Diplomatic Agent

The personal liability of the diplomat is historically and logically is the roots

of all other rights. The person of a diplomatic agent is inviolable and he should

not be liable to any form of arrest and detention. It is governed in the article 29 of

Vienna Convention 1961, which stated:

The person of a diplomatic agent shall be inviolable. He shall not liable to any form of arrest and detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his persons, freedom and dignity.148

The inviolability also includes the private residence of the diplomatic agent.

The private resident of a diplomatic agent get the same protection and enjoy the

inviolability as the premises of the missions. The legal basic of that protection is

the Article 30 paragraph 1 that stated, “The private residence of diplomatic

147 Paragraph 5 of Article 27 of Vienna Convention 1961148 Article 29 of Vienna Convention 1961 on Diplomatic Relations

51

agents shall enjoy the same inviolability and protection as the premises of the

mission.149

Actually, the privileges and immunity including inviolability not only owned

by diplomatic but also his family as well. They enjoy the same protection and

have the right to enjoy inviolability, it is governed in the Article 37 paragraph 1

that stated: “The members of the family of a diplomatic agent forming part of his

household shall, if they are not nationals of the receiving state, enjoy the

privileges and immunity specified in article 29 and 36.150 As stipulated in article

27 of Vienna Convention 1961, that family members of diplomatic agents are

entitled to diplomatic privileges and immunities. However, their family members

acquire privileges and immunities, unless the freedom of civil law and state

administrative receiving state does not include acts done beyond their duties.151

2.1. Immunity from Jurisdiction

Immunity from jurisdiction is the logical consequence of personal

inviolability.152 It means that the diplomat cannot be subjected to any form of

coercion even when exerted by the judicial authority of the state of the

residence.153 According to the ILC, immunity means the privilege of exemption

from, or suspension of or non-amenability to the exercise of the jurisdiction by

149 Article 30 paragraph 1 of Vienna Convention 1961 on Diplomatic Relations150 Article 37 paragraph 1 of Vienna Convention 1961 on Diplomatic Relations151 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.135152 Muhammad Munir, Op.cit, p. 43153 Ibid

52

the competent authorities of the territorial state.154 The Vienna convention

provided the legal basis for granting the immunity as stated in Article 31

paragraph 1. The Article stated that

“A diplomat agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

a. A real action relating to the private immovable property situated in the territory of receiving state, unless he holds it on behalf of the sending state for the purpose of mission;

b. An action relating to the succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state;

c. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.155

The immunity of diplomatic agent covers three aspects, namely criminal,

civil, and administrative. Theoretically, that immunity is absolute and has no

exception. However, it does not dispense the person enjoying it from respecting

the law itself. The immunity is not only owned by diplomatic agent, but also his

family as well as governed in article 37 paragraph 2.

2.2. Immunity from Measures of Execution

Besides regulating immunity from jurisdiction, Vienna convention 1961 also

provides that the receiving is not allowed to do any kind of execution. This is

done in order to give respect to the foreign diplomatic missions that are in the

receiving state. Execution can be done for a few exceptions as provided in sub-

154 Ibid155 Paragraph 1 of Article 31 of Vienna Convention 1961

53

paragraphs a, b, c of article 31 of Vienna convention 1961, but it should not

violate the inviolability of the diplomatic agent or his residence. The Article 31

paragraph 3 stated that,

“No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraph (a), (b), (c) of Paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his resident”156

2.3. Immunity from Giving the Evidence

This immunity is governed in the Article 31 paragraph 2, which stated “A

diplomatic agent or member of a special mission is not obliged to give evidence

as a witness”157. It also applies to the family members of diplomat agent. This

immunity is absolute, but it does not bar a request to give evidence to be

addressed by diplomatic channels to members of the mission.158 Such request may

be accepted in the interest of justice or of that mission itself.159

2.4. Immunity in The Third State

It is common practice that the third state to give immunity and privilege or

right to freely traverse the diplomats during a transit. Diplomat entitled to

immunity and privileges in general also allowed to enjoy the same rights in third

countries, including the freedom and protection necessary for communication and

156 Paragraph 3 of Article 31 of Vienna Convention 1961157 Paragraph 2 of Article 31 of Vienna Convention 1961158 Muhammad Munir, Op.cit, p.44159 Ibid

54

correspondence. It is in accordance with the Article 40 of Vienna Convention

1961, which stated:

“If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own state, the third State shall accord him inviolability and such other immunities as maybe required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges and immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their state. “160

3. Exemptions

Basically, member of foreign missions are exempt from dues and taxes.

There are two reasons why exemptions become important to ensure the efficient

performance of their functions, they are:

a. An external mission is an organ of a subject of international law,

which carries out its functions in the interest of both the sending and receiving

state, therefore there is no reason why it should pay tax to the later.

b. An obligation to pay taxes would be a form of direct constraint

exercised by the receiving state and it will also have the right to inquire into their

revenues and accounts which is not permitted by their personal inviolability.

3.1 Tax Exemptions

The tax exemption is governed in the paragraph 1 of Article 23 of Vienna

Convention 1961, which stated:

160 Paragraph 1 of Article 40 of Vienna Convention 1961

55

“The sending state and the head of mission shall be exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered.”161

It also implies that the exemption applies to taxes on purchase of property,

but that provision does not apply to taxes payable by persons contracting with the

mission.162 Moreover, the fees and charges by the mission in the course of its

official duties are also exempt from all dues and taxes.163

3.2 Exemptions from Customs Duty

All types of missions have exemption from customs duty, taxes and related to

charges.164 The obligation of receiving state to exempt the taxes toward

diplomatic agent is governed in the Paragraph 1 of Article 36 of Vienna

Convention 1961, which stated:

“The receiving state shall, in accordance with such laws and regulations as it may

adopt, permit entry of and grant exemption from all customs duties, taxes, and related

charges other than charges for storage, cartage, and similar services, on:

a. Articles for the official use of the mission

b. Articles for the personal use of a diplomatic agent or members of his family

forming part of his household including articles intended for his establishment”165

161 Paragraph 1 of Article 23 of Vienna Convention 1961162 Muhammad Munir, Op,cit, p. p.45163 Article 28 of Vienna Convention 1961 : “The fees and charges levied bv the mission in

the course of its official duties shall be exempt from all dues and taxes.”164 Muhammad Munir, Op.cit, p.46165 Paragraph 1 of Article 36 of Vienna Convention 196

56

3.3 Other Exemption

Actually, beside any tax exemption still there are some exemptions provided

by the Vienna Convention 1961 for the Diplomatic agent. Diplomatic agent has

no obligation to do any personal services in the receiving state, including military

services. Article 35 of Vienna Convention 1961 which protect the diplomatic

agent from that obligations, which stated: “The receiving state shall exempt

diplomatic agents from all personal services, from all public services of any kind

whatsoever and from military obligations such as those connected with

requisitioning, military contributions and billeting”.166 Moreover, members of all

types of missions are also exempt from the laws and regulations of the receiving

state regarding the registrations of aliens and resident permit, but they cannot

acquire the nationality of the receiving state, although it does not bar them from

applying the nationality.167

4. Diplomatic Privileges and Immunity in Perspective of Shariah

Basically, the sending of envoys and messenger to the foreign countries and

their inviolability can be traced back to the time immemorial.168 The principle of

inviolability can be considered chronologically was the first rule of customary

international law. It is the principle which made the contact between primitive

166 Article 35 of Vienna Convention 1961167 Muhammad Munir, Op.cit168 Muhammad Munir, Op.cit, p.30

57

were sent on ad hoc missions. 169 Prophet Muhammad sent envoys to various Arab

tribes and foreign states and received foreign envoys at the same time.170 The

notion of religious legitimacy of the diplomat also existed in the Greek city-state

system.171 The inviolability of envoys was the basis from which all other

privileges sprang. Immunity given to the envoys of the sending state is on the

basis of reciprocity.172 The envoys of foreign states were exempt from duties and

taxes if the moslem envoys enjoyed the same privileges in foreign states.

In Islam, the ad hoc envoys are personally inviolable. The Prophet

Muhammad himself entertained foreign envoys and lodged them in special guest

houses.173 Nowadays, as the missions have become permanent, therefore the

personal inviolability of diplomats necessitates the inviolability of the place

where the diplomat works and lives.174 Moreover, it also gives immunity to his

belongings and whatever he needs to facilitate his functions as a diplomat.

Consequently, his family should also have the same status as they accompany him

to facilitate his work in the receiving state. Therefore, the inviolability of the

169 Ibid, p. 30-31170 Afzal Iqbal, Diplomasi in Islam, Institute of Islamic Culture, Lahore, 1965, p. 61. The

Prophet sent his envoys to the rulers of Al-Yamama Bahrain, The Governors of Damascus and Alexandria. A messenger was sent to Caesar The King of Persia who tore up the Apostle’s letter. See Ibid p.89-92

171 Ibid172 The Prophet detained the envoy of Quraish until the moslem envoy detained in Mecca

returned safe to Hudaibiyah where the prophet was camping. See Al-Halabiy, Ali bin Burhanduddin, Insal ul Quom, III, p.26 in Muhammad Munir, Op.cit, p. 40

173 M.Hamidullah, The Muslim conduct of State and Muhammad Ashraf Lahore, 1977, p.151 in Muhammad Munir, Op.cit

174 Muhammad Munir, Op.cit, p.48

58

premises of the mission or its member is constant with sharia.175 Basically, Sharia

allows everything unless it is forbidden by it.176 Shybani in Al-Siyar al-kabir

stated that, the envoy from any side shall be inviolable even if no special

permission of his inviolability is given by any side. 177 On the other hand, the

immunity of diplomats and premises of the mission should be accorded because

of contract between Islamic State and any other state. The Vienna Convention

1961 on diplomatic relations is a multilateral agreement to which almost all states

in the world are parties. Islam strictly obliges an Islamic State to hold on to its

agreement. The obligation to fulfill the agreements stipulated in the Quran verse

5:1 of Quran goes thus,” O, you believe! Fulfill all obligations”. Then, The

Prophet Muhammad reported to have said that, “Muslims have to keep up to their

terms (including to the terms of their agreement and promises). 178 It is quite clear

that Islam provide clear rules regarding the fulfillment of agreement and promises

as quoted from Quran and Hadith. Furthermore, in his commentary of the Holy

Quran which was wrote by Abdullah Yusuf Ali stated that, “… our states enters

into a treaty: every individual in that group or state is bound to see that as far as

lies in his power, such obligations are faithfully discharged”.179

175 See Matte ur-Rahman, Al-alakat al-Dahlomasla Ak Dawlia ala Daw’e al-Sharia al Islamic ( Diplomatic Relations in Islamic Law), Arabic unpublished LL,M thesis submitted to the Faculty of Sharia and Law at the IIU Islamabad, 1994, p. 168 in Muhammad Munir, Op.cit

176 See in Al Suciti, Jalal al-Din, al-isbah wa-Naazair, p.60 in Muhammad Munir, Op.cit177 See Sarksi, supra note 6.V.I, p,296 in Muhammad Munir, Op.cit178 Muhammad bin Ismail, Saheeh al-Bukar, Kitab al-Jjara, volume 3, p.52. Seen also“

Muslim Jurist have therefore, laid down the rule that, “Keeping up to the terms of the agreement is obligatory”. See in matter Rahman, supra note 31, p.173

179 See in The Holy Quran Text, Translation and Commentary by Abdullah Yusuf A.H, published by Amann Corporation Corporations Maryland, USA, p.243

59

M. Hamidullah stated that, “even if the envoy, or any company, is a criminal

of the state to which he is sent, he may not treated otherwise than as an envoy”. 180

In Pakistan, the Federal Shariah Court considered diplomatic immunities under

the Diplomatic Immunities (Commonwealth Countries Representatives) Act

1957. According to the court diplomatic immunity is in conformity with Sharia.

The Court ruled that, “the grant of immunities to the diplomatic representatives is

incumbent with sharia. It is significant to note that the immunity and privileges

are based on the reciprocity principle. Furthermore, it has been a custom to accord

immunity to the diplomats and it is also in the best the state to accord immunity to

foreign envoys. To sum up, the origin of immunities in Islam can be found in four

major sources of Islamic law including: Quran which is respecting a multilateral

agreement including in this one regarding the immunity of diplomats, Sunnah,

Custom, and Maslaha.181 However, it is the conduct of the Prophet Muhammad

which has much information about the immunity of envoys The Prophet received

a delegation led by Aamir bin e-Tufail who abused the Prophet. While returning

the delegation threatened to attack Medina and destroy it. Despite their

misbehavior and treat, The Holy Prophet was extremely polite to them and saw

them off with great honor and respect.182

C. Protection of Receiving State under Vienna Convention 1961

180 Hamidullah, Supra note 30, para.291 in Muhammad Munir, Op.cit, p.49181 Matteur Rahman, supra note 31,p. 186 in Muhammad Munir, Ibid182 Ibn Al-Qayyim, Zadul Maad, v.III, p.29 in Muhammad Munir, Op.cit

60

The Vienna convention 1961 which entered into force since 24 April 1964

contains the procedures and rules regarding the exercise of diplomatic relations

and the provision for diplomatic immunity and privileges for the diplomatic

agent. The Vienna Convention provides a complete framework for the

establishment, maintenance and termination of diplomatic relations on a basis of

consent between independent sovereign States. Vienna Convention 1961 also

specifies the functions of diplomatic missions, the formal rules regulating

appointments, declarations of persona non grata of a diplomat who has in some

way given offence, and precedence among heads of mission. It sets out the special

rules regarding privileges and immunities which enable diplomatic missions to act

without fear of coercion or harassment through enforcement of local laws and to

communicate securely with their sending Governments. 183

However, in reality what is stipulated in the provisions contained in the 1961

Vienna convention is more focused to the obligations to be fulfilled receiving

state toward the diplomatic agent who served their state. It's certainly not fair

since diplomatic relation is a mutual relationship so that both parties have the

equal right and the same rights. Lack of regulation for the receiving state's rights

make the position of the receiving state itself has weakened since diplomatic

immunities and privileges which are applied in the receiving state. This is what

make it under the spotlight due to the fact that diplomatic immunity and privileges

183 Eileen Denza, Vienna Convention on Diplomatic Relations, United Nations Audiovisual Library of International Law, 2009, p.3 www.un.org/law/avl, accessed on December 14, 2012

61

are often abused by the diplomat and causing a harm to the receiving state.

Therefore, it needs to be given the protection of the state to ensure the

implementation of good diplomatic relations and dignified.

Thus, diplomatic relations are established by mutual consent among the two

states concerned but may be broken off unilaterally often as a mark of disapproval

of an illegal or unfriendly act by the other state.184 The protection obtained by the

receiving state in case of violations committed by the diplomatic agent in the

receiving state served including two aspects, namely persona non grata and the

waiver of immunity.

a. Persona non Grata

The receiving state may at any time declare a diplomat 'persona non grata'.185

Right of each state to declare any diplomatic or consular agent persona non grata

is one of the oldest principles of diplomatic and consular law, echoed as far back

as the work of the international law’s founding fathers.186 It is a right that has

remained uncontested and is currently enshrined in the 1961 Vienna Convention

on Diplomatic Relations (Article 9) and the 1963 Vienna Convention on Consular

Relations (Article 23), which both drew upon the 1932 Harvard Draft (26 AJIL

(1932 Supp.) 79), enabling similar terms of provision.187 The right of the receiving

184 N. M. Abdulraheem, Op.cit, p.10185 Ibid186 Jean d’Aspremont, Persona Non Grata, R. Wolfrum edition, Max Planck Encyclopedia

of International Law, 2009, p. 1187 Ibid

62

State to request the recall of offending diplomats was already supported by

Gentilis, Grotius and Vattel.188 Sumaryo Suryokusumo (2005) defined “Persona

non grata” as a rejection or disapproval of a diplomat by the receiving state either

before or after the appointment and since the diplomat declared persona non grata,

the sending state is obliged to immediately withdraw diplomats from the receiving

state.189 Regulation of persona non grata been set in article 9, paragraph 1 1961

Vienna Convention, which states:

“(1) 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 its diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In such a case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared persona non grata or not acceptable before arriving in the territory of the receiving State.”190

The right of every State to declare any consular or diplomatic agent persona

non grata is one of the main principles of the mechanism of diplomatic and

consular law enforcement. When diplomatic and consular privileges and

immunities are abused by foreign agents, the receiving state will usually resort to

the declaration persona non grata to counter such abuses. The ability to declare an

agent persona non grata, together with the possibility to merely severe diplomatic

and consular relations, is a thus a “means of defense against, or sanction for, illicit

activities by members of diplomatic and consular missions” provided by

188 Ibid189 Sumaryo Suryokusumo, Op.cit, p.171190 Article 9 paragraph 1 of Vienna Convention 1961

63

diplomatic and consular law.191 In February 2008, Philip S. Goldberg a diplomat

of United States for the Bolivia was declared persona non grata after being

accused of espionage. Officially on 10 September 2008, the Government of

Bolivia expelled Mr. Goldberg, after declaring him persona non grata.192 There

was a case which recently occurred, in May 2012 where Panamanian diplomat

named Roberto Carlos Vallarino was declared persona non grata by the

government of Filipina for the case of raping a 19 years old girl in Filipina. This

was happened because the Panamanian government refuse to waive the immunity

of that diplomat so that the diplomat cannot be adjudicate before the Filipina

court. No longer after that declaration of persona non grata, the government of

Panama recalled that diplomat.193 Based on that example of cases we can

conclude that persona non grata is an attempt to provide a punishment for

violation of foreign diplomats in the region in the form of eviction. It happens

because the receiving state does not have the authority to prosecute foreign

diplomats as they have diplomatic immunity.

191 ICJ, Diplomatic and Consular Staff in Teheran, paragraph 83. See in Jean d’Aspremont, Op.cit, p.3

192 Analisa Kasus Persona Non Grata, http://serba-serbiceritasehari-hari.blogspot.com/2010/04/analisa-kasus-persona-non-grata.html, accessed Feb 5, 2012

193 PH declares Panamanian diplomat in rape case ‘persona non grata’, http://globalnation.inquirer.net/36619/ph-declares-panamanian-diplomat-in-rape-case-persona-non-grata, accessed Feb 5, 2012

64

Indeed, the receiving State must in any circumstance respect the inviolability

of diplomatic or consular agents, premises, archives and documents.194 This does

not mean that the receiving State is not entitled to take counter-measures outside

the scope of diplomatic and consular law in reaction to violation of diplomatic

and consular law by the sending State. So, basically persona non grata is a right

held by the receiving state to expel a foreign diplomat that leads to the end of its

term on certain reason.

It was agreed that the sending state was internationally obliged to recall the

agent concerned or to terminate his functions with the mission failing to do so. An

agent may also be declared persona non grata when there is an interference with

the internal affairs of the receiving State through subversive activities such as

espionage or terrorist activities.195 Such behavior constitutes an infringement of

the agent’s duty to respect the laws and regulations of the receiving state and not

to interfere in the internal affair s of the receiving state.196 Sumaryo Suryokusumo

already defined some conduct which possible to be the reason dealing with the

declaration of persona non grata, they are:

a. The activities carried out by foreign diplomats and political subversion

and transgression which is not only detrimental to the national interest but also

violate the sovereignty of the receiving countries.

194 Article 50 of the Articles on State Responsibility for Internationally Wrongful Act, State Responsibility

195 Ibid196 Ibid

65

b. The activities carried out are clearly contrary to law and legislation

receiving countries.

c. The activities related to espionage activities deemed destabilizing and

national security of the receiving state.197

In any case, the agent concerned must be offered a reasonable time to leave

the state while he remains entitled to the privileges and immunities attached to his

function.198 If the sending state refuses or fails within a reasonable period to carry

out this obligation, the receiving state may refuse to recognize the person

concerned as a member of the mission. Furthermore, the receiving state is allowed

to consider the agent an ordinary foreign person without any immunity or

privilege. According to the ICJ (International Court of Justice), if the sending

state does not recall the agent concerned, the loss of diplomatic and consular

privileges is ‘almost immediate’.199 This means that this person can be expelled if

not recalled by the receiving state or if he fails to voluntary leave the state, but

provided that the conventional and customary rules related to the treatment of

foreigners are respected.200 However, the effectiveness and choice of each of these

197 Setyo Widago and Hanif Nur Widhiyanti, op.cit , p.100 seen also in Sumaryo Suryokusumo, op.cit, p. 122-134

198 Eritrea-Ethiopia Claims Commission, Partial Award, Diplomatic Claim, Eritrea ’s Claim No. 20, 19 December 2005, p. 9

199 United States Diplomatic and Consular Staff in Teheran Case (United States v Iran), paragraph 86 See in Jean d’Aspremont , p.6

200 Ibid

66

responses will have to be primarily assessed in terms of considerations of

reciprocity and bilateral relations of the sending and receiving states.201

The issue of effectiveness of the persona non grata is still under the spotlight

because it is known in diplomatic principle of reciprocity. Sometimes the

declaration of the persona non grata brings the diplomatic relation toward the

worse condition. Sending countries could be feeling offended against the

declaration of persona non grata to the diplomats. Because basically

implementations by treating foreign diplomats well so their diplomats treated the

same as what they have given to foreign diplomats. So it does not rule out the

possibility that a state diplomat declared persona non grata they retaliated by

doing the same to foreign diplomats residing in the territory they come from the

countries concerned. This had happened in the case of U.S. diplomat who are

declared persona non grata by the government of Bolivia for alleged espionage. In

September 2008, since U.S. Government did not accept that policy replied by sent

back Bolivian diplomat to his state and declared persona non grata.202 This shows

that the persona non grata quite risky to be implemented in diplomatic relations

despite the receiving state has suffered losses from the act of foreign diplomats

within their state.

b. Waiver of immunity

201 Tania Sebastian, Op.cit, p. 10202 Analisa Kasus Persona Non Grata,

http://serba-serbiceritasehari-hari.blogspot.com/2010/04/analisa-kasus-persona-non-grata.html, accessed Feb 5, 2012

67

Besides has the right to declare persona non grata, the receiving state has

rights to request the waiver of immunity toward the sending state.203 In practice,

when the immunity of diplomatic agents have been waived by the sending state,

their immunity will immediately lost and become the ordinary person without

own any forms of privileges and immunities. Since the diplomatic immunity deal

with the immunity of his government, consequently, it is the authority of sending

state to decide whether the immunity of diplomatic agents should or should not be

waived on a particular case. Waiver must always be expressed.204 The setting of

the waiver of immunity has been mentioned in the article Articles 32 of Vienna

Convention 1961, which stated:

1. The immunity from jurisdiction of diplomatic agents and persons enjoying immunity under article 37 may be waived by the sending state

2. Waiver must always be express

Basically, the waiver of immunity can be an effective way to protect the

receiving state because it can lead to the release of the diplomatic immunity of a

diplomat so that they can be tried if you do the crime or abuse of immunity that

bring harm to the receiving state. However, the final decision regarding the

release of the rules of diplomatic immunity is fully in the hands of the sending

state. In January 2011, Russian diplomats drunk and crash two woman in Ottawa.

However, when the Canadian Government asked the Russian Government to

waive the immunity of that diplomat actually they refused it. Then, the Russian

203 Article 32 paragraph 1 of Vienna Convention 1961204 Article 32 paragraph 2 of Vienna Convention 1961

68

government stated that would do certain investigation and adjudicate that

diplomat under their law.205. In those cases, it has demonstrated the powerlessness

of waiver of immunity. Furthermore, that in fact the Canada as the receiving state

cannot guarantee whether the diplomat who has been found guilty will eventually

get an appropriate sentence or not in their home state .

Although the waiver of immunity is a right granted to the receiving but the

fact the receiving state can only request the sending state for it. This makes the

implementation of the waiver of immunity is less so effectively since 1961

Vienna convention give completely to the good faith of sending countries.

Both persona non grata and waiver of immunity not more than a remedy for

what had happened either diplomatic or abuse violations. So they are less capable

described as efforts on protecting the receiving state. This is what brought Vienna

Convention is less able to accommodate the interests of the receiving state that is

related to the lack of protection contained in the 1961 Vienna convention.

D. Relationship between Diplomatic Immunity and Privileges and the Protection of the Receiving State

In essence, state sovereignty is one of the most essential attribute of a state

gives rise to the concept of state jurisdiction.206 Countries that implement

sovereign territory would be allowed to make its own laws and its laws which are

205 CBC News Canada, http://www.cbc.ca/news/canada/story/2001/01/28/diplomat010128.html, accessed Jan 3, 2012

206 Sumaryo Suryokusumo, “Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial”, Indonesian Journal of International Law, Volume 2 no 4, Lembaga Pengkajian Hukum Internasional Fakultas Hukum Universitas Indonesia, 2005, p.686

69

legally binding. Sovereignty is a major aspect in the association with one another

state (and state organizations) which are regulated by law.207 Brownlie (1990)

stated that the sovereignty of a state will determine the form of the laws of the

state while the law will determine the condition of the rule. 208 Furthermore, one

of the state's sovereignty is immune from interference or disruption in the

international arena. Therefore, the issue of sovereignty is closely related to state

jurisdiction.209

Jurisdiction defined as the power or authority in relation to the state, that

power is a way or actions taken by a state to perform well in determining the rule

of legislation and to enforce its own national rules.210 In international law, the

term jurisdiction is intended as a legal right of a power or authority in law from

various authorities such as the jurisdiction of international arbitration jurisdiction,

extraterritorial jurisdiction, and so forth.211 Under general principle of law, every

state has exclusive jurisdiction within its own territory. 212 The state jurisdiction

would cover inter-alia jurisdiction over its resident nationals and non-resident

nationals, including that of the aliens that is become the subject of this article.

207 Moch. Basarah, “Perkembangan Doktrin Tindakan Suatu negara (Act of State Doctrine) Setelah Konsep Kekebalan Negara (Teori Imunitas)”, http://mochamadbasarah.wordpress.com/arsip/#_ftn1, accessed December 19, 2012, 11.30

208 Ian Brownlie, Principles of Public International Law, Clarendon Press, London, 1990, p.287

209 Moch. Basarah, Op.cit210 N A Maryan Green, International Law, Law of Peace, Mac Donald and Evans Ltd,

London, 1973, p.181211 SUmaryo Suryokusumo, “Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial”, Op.cit212 Ibid, p.685

70

However such jurisdiction is not an absolute one, rather it is subject to certain

limitations imposed by international law.213 The International instrument such as

Vienna convention 1961 and 1963 for instance are both governing such

limitations by creating extraterritorial jurisdiction, in which diplomatic and

consular may exercise it in the receiving state.214

Extraterritorial jurisdiction is defined as the apparent extension of the

jurisdiction of any State (quasi extentio) in the jurisdiction of another State. The

concept is based on the theory extaterritorial in relation to premises (a piece of

land where the building stands diplomatic or consular representation).

Environment premises considered additional areas of a State. Premises mentioned

in diplomatic law declared should be inviolable, it cannot be entered by local

security forces unless the permission of the head of the mission.215 Extraterritorial

jurisdiction includes jurisdiction of diplomatic and consular representatives of the

State, especially concerning the jurisdiction of a State against its citizens in other

countries. Exterritorial jurisdiction was originally called consular jurisdiction

because it was known by many states and applied to the consular.216

JB. Moore as a judge in the case of the lotus has stated that the territorial

jurisdiction of a State against foreigners as well as the territorial jurisdiction of the 213 J.L Brierly, Law of Nations, p. 22 in Sumaryo Suryokusumo, “Yurisdiksi Negara vs

Yurisdiksi Ekstrateritorial”, 686-687214 Ibid, p.687215 Sumaryo Suryokusumo, “Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial”, Op.cit,

p.690216 ICJ report, 1952, p. 93 in Sumaryo Suryokusumo, “Yurisdiksi Negara vs Yurisdiksi

Ekstrateritorial”, Op.cit, p. 690

71

state to its citizens without any special treatment or discrimination against

foreigners presented.217 However, a foreign citizen can request to be released from

the territorial jurisdiction of a State in respect of:

a. It caused by the reason of certain immunity, the foreign person is not

subject to the national laws of the receiving State.

b. That national laws are not subject to international law.218

It has been recognized that there is exception of the entry into force of the

jurisdiction of the receiving state by diplomatic immunity and inviolability which

is owned by a diplomat. Sir Hersch Lauterpacht observed ‘that the receiving

States have no right, in any circumstances whatever, to prosecute and punish

diplomatic envoys. For a diplomatic envoy must in no respect be considered to be

under the jurisdiction of the receiving State.’219

The invocation of diplomatic immunity by foreign governments to avoid the

criminal liability of diplomatic and consular personnel is a problem confronting

every nation that maintains diplomatic or consular personnel. Unfortunately,

waiver of immunity remains a rare occurrence in cases of serious crime.

Consequently, a great deal of criticism has been leveled at the system of

217 Yurisdiksi, http://datalfa2011.blogspot.com/2011/06/yurisdiksi_02.html, accessed Feb 19, 2013

218 Huala Adolf, Aspek-aspek Negara dalam Hukum Internasional, Rajagrafindo Persada, Jakarta, 1996, p.152

219 Bradley Larschan, “The Abisinito Affair: A Restrictive Theory of Diplomatic Immunity?”, 26 Colum. J. Transnat'l L.283, p. 284

72

immunity and a number of proposals have been put forth to hold diplomats

accountable for crimes committed.220

E. Theory of Amendment

Basically, Vienna Convention contains no provision for amendment.

However, Amy Zeidman provided two possible methods to amend it. First, the

Convention could be amended by using the method provided in the United

Nations Charter.221 This would require a vote of two-thirds of the Convention

signatories.222 This method of amendment is consistent with the drafters' intent

that the principles of the United Nations Charter be considered in examining the

Vienna Convention.223 This argument was supported by the Vienna Convention

preamble “The States Parties to the present Convention . . . [have] in mind the

purposes and principles of the Charter of the United Nations concerning the

sovereign equality of States, the maintenance of international peace and security,

and the promotion of friendly relations among nations . . . .”224

220 James S. Parkhill, “Diplomacy in The Modern World: A Reconsideration of The Bases for Diplomatic Immunity In The Era of High-Tech Communications”, 21 Hastings Int'l & Comp. L. Rev. 565, p.566

221 Amy Zeidman, Op.cit, p. 430222 “Amendments to the present Charter shall come into force for all Members of the

United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly . . . .” U.N. Charter ch. XVIII, art. 108. The General Assembly is composed of all member states with no more than five representatives from each state. U.N. Charter ch. IV, art. 9, paras. 1-2.

223 Amy Zeidman, Op.cit224 Paragraph 2 of Preamble of Vienna Convention 1961

73

A second possible method of amendment is the method used in the Vienna

Convention 1969 on the Law of Treaties (“Treaty Convention”).225 The Vienna

Convention on the Law of Treaties affirmed the modern practice of amending

multilateral treaties by another multilateral treaty which comes into force only for

those states which agree to it.226 Although this treaty does not apply to the Vienna

Convention on Diplomatic Relations, it is a useful guide. The Treaty Convention

permits amendment without agreement among all parties. The Treaty Convention

does require, however, that all contracting states have a right to take part in the

decision to amend and may either become parties to the treaty as amended or may

choose not to be bound by it.227

The general rule regarding the mechanism of amendment of treaties

governed in Article 40 paragraph 1-2, which stated:

1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs

2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in:

a. the decision as to the action to be taken in regard to such proposal;

b. the negotiation and conclusion of any agreement for the amendment of the treaty.228

225 Amy Zeidman, Op.cit226 I. Sinclair, The Vienna Convention on the Law of Treaties, 1984, p.106 in Amy

Zeidman, Op.cit227 Vienna Convention on the Law of Treaties, supra note 61, art. 40. Agreement among all

parties is not required, but every party has the option to be excluded from the amended agreement.228 Article 40 paragraph 1-2 of Vienna Convention 1969 on Law of Treaties

74

So, by the common ways which is usually taken by nations to amend the

convention, there are two possible ways to amend Vienna Convention 1961 as

well.

CHAPTER III

A. Urgency to Amend the Vienna Convention 1961 on Diplomatic Relation

1. Vulnerability of Vienna convention to be abused by diplomat regarding

the diplomatic privileges and immunity.

The implementation of Vienna Convention 1961 is still under spotlight. It is

cannot be separated from the abuse of some provision in Vienna convention

regarding the diplomatic privileges and immunity conducted by the diplomatic

75

agent. Vienna Convention on diplomatic relation which entered into force in 1961

still contains a lot of loopholes that allow it to be abused. Basically, the Vienna

Convention 1961 gives the absolute immunity toward diplomatic agent in order to

carry out his function optimally and without any interference by receiving state. It

is based on the paragraph 4 of preamble of Vienna convention 1961 which stated

that, “realizing that purpose of such privileges and immunities is not to benefit

individuals but to ensure the efficient performance of the functions of diplomatic

missions as representing state.229 Naturally, the diplomatic privileges and

immunity which granted to the diplomat will make the diplomatic agent free from

the intervention or pressure from the receiving state. These rights makes receiving

state does not have any control over any diplomatic activities conducted their

territory. However, the fact that diplomatic privileges and immunities of

diplomats is to provides space to do more or beyond the main purpose of granting

such rights. Diplomatic immunities and privileges are often abused by the

diplomat with a specific motive to fulfill their personal goals outside of the main

tasks of the diplomatic representation. With those rights guaranteed by the Vienna

Convention 1961, for decades, cases of abuse and privileges of diplomatic

immunity continues to happen, and most of these cases the receiving countries

who continue to suffer losses either directly or indirectly. Aspects of regulation on

the rights and privileges of diplomatic immunity set forth in the Vienna

Convention 1961 increasingly in the spotlight as it contains many loopholes that

229 Paragraph 4 of preamble of Vienna Convention 1961

76

often provide opportunities for the abuse of rights. In short, there are several

aspects of diplomatic privileges immunities which usually being abused by

diplomat, they are:

a. Personal Immunity and inviolability

1. Immunity from the jurisdiction

In 1776, there is notion that quite popular at that time which stated "no one is

above the law", it was popular during the founding of the United States.230 That

principle has been a driving force throughout the great ideological experiment

known as democracy. Everyone agree that people who commit crimes must

responsible for them.231 However, the simplistic nature of this notion fails to

capture the whole truth of the current system of international law.232 International

law permits certain individuals to escape accountability for their crimes. Since the

enactment of the Vienna Convention 1961, the principle of diplomatic immunity

has enabled foreign diplomats to avoid prosecution for violations of the receiving

state's laws. There is little doubt that these core protections have existed for

centuries. However, many argue that there is a need for wholesale changes to the

law of diplomatic immunity to ensure justice is obtained for the victims of past

diplomatic crimes and to deter diplomats from committing crimes in the future.233

230 William G. Morris, 2007 Solutions to The Problems of Diplomatic Crime and Immunity, 36 Hofstra L.Rev. 601, p.601

231 Ibid.232 Ibid.233 Ibid.

77

As such, a debate of continuing to provide foreign diplomats with diplomatic

immunity still exists up today.

Vienna Convention 1961 grants personal immunity toward diplomat apart

from the immunity and inviolability of the mission. This instrument makes a

diplomatic agent is not only immune from the jurisdiction of the criminal but also

civil and administrative. It is all governed in the Article 31 paragraph 1 which

said,

“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”234

This immunity is given to a diplomat freely carry out their duties without

pressure and intervention of the receiving state. Besides immunity, a diplomat

also has the "inviolability" as stipulated in article 29 of the Vienna Convention

1961, "The person of a diplomatic agent shall be inviolable. He shall not liable to

any form of arrest and detention."235 This rule certainly makes a diplomat cannot

234 Article 31 of Vienna Convention 1961235 Article 29 of Vienna Convention 1961

78

be subject to any action of any power by the receiving state, including in this case

the detention and arrest. Both immunity and inviolability applies diplomat held

that the duty of a diplomat maintained independency of its duty without

intervention and interference during the running duties. However, the fact that

immunity from the jurisdiction of the receiving countries remain applied even if a

diplomat is not on his duty. In this case mainly the frequent violations of the

criminal acts committed by a diplomat is going on out from its duties and

functions as a diplomat.

Since the enactment of diplomatic immunity and privileges, then the

receiving is not entitled to prosecute a diplomat as stipulated in the Vienna

Convention 1961. The Vienna Convention is explicit that "without prejudice to

their privileges and immunities, it is the duty of all persons enjoying such

privileges and immunities to respect the laws and regulations of the receiving

state." At the same time, it is not correct that when a diplomat violates this duty

he loses his immunity. Such a reading is inconsistent with the immunities given,

which operate precisely in respect of such alleged violations, and which, in the

case of diplomatic agents, apply even to unofficial acts.236

Thus, on some occasions, diplomatic immunity leads to some unfortunate

results; protected diplomats have violated laws including those that would be

236 Rosalyn Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience, 79 Am. J. Int'l L. 641, p.649-650

79

violations at home as well of the receiving state. In 2001, a Russian diplomat to

Canada caused an automobile accident which killed one pedestrian and left

another severely injured. The diplomat was drunk at the time and had been

stopped for drunk driving twice in the past by Canadian police who were unable

to prosecute him. Canada requested a waiver of his immunity but was turned

down. Although Russia did not waive his immunity under Article 32, they did

agree to process him through their own system pursuant to the provision found in

Article 31.237 There was an actual case, in April of 2012 in Manila, a Panamanian

diplomat Erick Bairnals Shcks was accused of raping a 19-year old Filipino

woman, but was later released from detention because Shcks "enjoys protection

under the 1961 Vienna Convention".238 Other incidents have involved serious

crimes such as assault, drug traffic, kidnapping, rape, slavery and murder, and the

diplomatic agent can use their immunity to avoid the prosecution in the receiving

state.

Basically, the granting of immunity and inviolability is not to provide

benefits to the individual but to the work of a diplomat can be optimal. In fact,

diplomatic immunity and personal inviolability are an excuse for diplomats to

avoid prosecution in the receiving state. Receiving state in which the diplomat in

charge did not have any power to prosecute diplomats who have committed

237 The Jamestown Foundation, Russian Diplomat Faces Jail Term for Deadly Auto Accident, Mar. 22, 2002, http://jamestown.org/publications_ details.php?volume_id=25&issue_id=2223&article_id=19257. Accessed Jan 20, 2013, 9:39 pm

238 http://globalnation.inquirer.net/36575/panamanian-suspect-in-rape-of-filipina-leaves-philippines. Accessed Jan 20, 9:55 pm

80

crimes or abusing his immunity except by asking the sending state to waive his

immunity or declared persona non grata. As discussed in the previous chapter,

basically every state has the authority to enforce the rules of their own territory on

the basis of the theory of sovereignty. The relationship between sovereignty and

jurisdiction of the state is very close, enforcement jurisdiction is one form of the

sovereignty of a state itself. Ian Brownlie (1990) stated that the sovereignty of a

state will determine the form of the laws of the state while the law will determine

the condition of the rule.239 However, in this case the Vienna convention 1961

becomes the instrument to be the exception that makes the jurisdiction of a state

cannot be enforced against a foreign diplomat.

Principle of immunity and inviolability already applies for a long time and

become one of the basic rules of diplomatic practice. Moreover, since the rights

guaranteed in the 1961 Vienna Convention immunity and inviolability to the

diplomat has written legal basis. Important point of the implementation of the

immunity and inviolability is the need for "good faith" of a diplomat to respect

the laws and regulations in the receiving state. This is very important since the

immunity and inviolability of diplomats has made them immune from the

jurisdiction of the receiving state, whether the jurisdiction of criminal, civil, or

administrative. In this case, the receiving has no control at all toward foreign

diplomats who are when the diplomat violates law or the rules of their state. It can

239 Ian Brownlie, Principles of Public International Law, Clarendon Press, London, 1990, p.287

81

be concluded that the grant of diplomatic immunity and inviolability done by

Vienna Convention 1961 is too loose and does not sufficiently restrict a diplomat

not to abuse that right with a specific purpose. Stipulation on the right in the 1961

Vienna convention itself very clearly gives the diplomats maximum opportunity

to avoid legal obligations in the receiving state if they violate the law.

2. Inviolability of the bag

Basically, the Vienna Convention on Diplomatic Relations (“Vienna

Convention”) provides that documents or articles intended for diplomatic use be

considered diplomatic bags and thus may not be opened or detained by customs

officials at their point of entry.240 Unfortunately, diplomatic bags are frequently

used to smuggle such things as drugs, black market goods, and art. With the

recent rise in terrorism, the diplomatic bag has been used to smuggle terrorist

murder weapons in and out of states.241 For example, the machine guns used in a

raid on a Turkish synagogue, in which twenty-three people were killed, were

apparently smuggled into Turkey in diplomatic bags. The weapon used to kill the

first secretary of the Jordanian Embassy in Ankara was smuggled into Turkey in a

diplomatic bag from Syria.242 The rifle used to kill a British policewoman on the

240 Article 27 paragraph 3 of Vienna Convention 1961241 The bags of nations such as Libya “carry more guns than correspondence.” 132 Cong.

Rec. E1914 (daily ed. June 3, 1986) (statement of Rep. Bereuter) in Amy Zeidman, op.cit, p. 429242 A terrorist attack on a synagogue in Istanbul caused the death of 23 Turkish Jews. Two

men, yelling in Arabic, charged into the synagogue with machine guns and opened fire. Although Turkish police were unable to identify the terrorists, the Turkish press reported that there was evidence indicating that the machine guns were smuggled into Turkey in diplomatic bags. See in Amy Zeidman, op.cit

82

premises of the Libyan People's Bureau in London was smuggled out of the state

in a sealed diplomatic bag.243 In January 2012, Italy detected 40 kilograms of

cocaine smuggled in a diplomatic pouch from Ecuador, arresting five. Ecuador

insisted it had inspected the shipment for drugs at the foreign ministry before it

was sent to Milan.244

That, one aspect of the inviolability abuse is often done by the diplomat was

smuggling something beyond the basic function for the sake of diplomatic

missions. Inviolability of the diplomatic bag is very risky, the receiving cannot

guarantee that these rights are used appropriately by a diplomat or not. The setting

of the inviolability of the diplomatic bag set out in Paragraph 3 of Article 24

Vienna Convention 1961, which reads: "The diplomatic bag shall not be opened

or detained". The article has removed the right of the receiving to check the

diplomatic bag when entering their state. The inviolability of the bag given to

avoid the correspondence government of sending countries and diplomatic

missions or secret documents being leaked. Later, this principle is useful to

protect the diplomatic bag when not in the premises of the mission. The problem

is that often abuse inviolability of the diplomatic bag carried out when the

diplomatic bag first arrived at the airport because the bag is not allowed through

inspection. In some cases the diplomatic bag was found was used to smuggle

goods beyond the interests of diplomatic missions. This case in the spotlight

243 Ibid.244 http://www.mmrree.gob.ec/2012/com012.asp. Accessed January 22, 2013 12:21

83

because of this article does not accommodate the interests of the receiving state.

Receiving countries of course are entitled to the benefit of maintaining security on

its territory, with the inviolability owned by diplomatic bag and the vulnerability

that right to abused so it becomes not fair.

b. Inviolability of Premises of the Mission

The inviolability of the premises of the mission clearly stated in Article 22 of

Vienna Convention 1961 paragraph 1 which mentioned, “The premises of the

mission shall be inviolable. The agents of the receiving state may not enter them,

except with the consent of the head of the mission.”245 The principle of the

inviolability of diplomatic premises was universally accepted as customary rule of

international law long before the 1961 Vienna convention. One complicating

factor in providing protection to foreign missions is the principle of the

inviolability of premises, in other words, the premises of foreign missions are

treated as if they have territorial integrity and are part of the sending state.

Therefore, it cannot be occupied or be entered. In time, the term came to include

the idea of "ex-territoriality," in other words, the diplomatic missions' premises

were treated as an integral part of the sending state's territory, with its occupants

being subject to the laws of their state of origin.246

245 Article 22 paragraph 1 of Vienna Convention 1961246 http://www.thedailystar.net/newDesign/news-details.php?nid=120606, accessed

January 26, 2012, 8:03 pm

84

Since the protection of given by that article, the receiving state has no chance

to supervise the activity of the foreign diplomatic mission whether they run

function rightly or there are things that are considered suspicious. In case if the

receiving state finds something suspicious and considered to threaten the interests

of the receiving state, still they cannot enter the premises to do some search or

investigation without the consent of the head of mission. Any rights of the

authorities of a receiving state to search and seize on the premises of a diplomatic

mission are specifically excluded. If the receiving state does so without the

permission of the head of the mission, it would be treated as a foreign invasion

and a breach of international territoriality.247 The immunity of premises and its

property owned by diplomatic mission stated more in the Article 22 of Vienna

convention 1961 paragraph 2 which stated, “The premises of the mission, their

furnishings and other property thereon and the means of transport of the mission

shall be immune from search, requisition, attachment, or executions”.248 Actually,

this article is really strengthening the rules on the protection of the property of the

diplomatic mission, including in this case the premises of the mission.

The rule on inability to enter foreign premises of the mission is very risky. In

February 1973, the incident of Iraq Embassy in Islamabad, which was happened

in February 1973, is one the example case where that rule is a loophole to be

abused by the diplomat. When a container that was addressed to the Iraqi

247 Ibid.248 Article 22 of Vienna Convention 1961 paragraph 3

85

Embassy in Islamabad accidentally was damaged Pakistani customs officials

revealed that 59 crates which was filled with weapons, explosives materials and

ammunition that will be received by the Belouchistan Rebels. Then, It was proved

that the weapons were imported by diplomatic immunity and privileges in to

Pakistan which was then stored at the Embassy of Iraq. Therefore, Government of

Pakistan asked for permission to examine it. Although Iraq's Ambassador rejected

it, Pakistani police had been given orders to keep checking those crates with the

presence of Iraqi ambassadors and they found the weapons in storage.249

Essentially, building foreign representatives should not be used for activities

that are contrary to diplomatic duties. Where it is clearly stated in the Vienna

Convention of 1961 in particular article 41, paragraph 3 where diplomatic

buildings should not be used by diplomats in the subject that has nothing to do

with the function or mission of the diplomats in the receiving state.250 Therefore,

there is some suggestion that officials of the receiving state may enter the

premises of a foreign mission to record the extraordinary things or there are

strong indications that the premises of the mission have been used for purposes

249 Nizzar Fikkri, Tinjauan Yuridis terhadap Kekebalan Gedung Diplomatik (Studi Terhadap Kasus Kedutaan Besar Irak di Islamabad Februari 1973 , http://nizarfikkri.blogspot.com/2011/12/tinjauan-yuridis-terhadap-kekebalan.html, October 19, 2012

250 Article 41 paragraph 3 of Vienna Convention 1961, “The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.”

86

beyond the interests of diplomatic missions. The problem is how authorities of the

receiving state to get into the building who allegedly had abused diplomatic

functions by diplomatic officials concerned to say it would interfere with the

security, peace and sovereignty of the receiving countries, because to get into the

building diplomatic receiving have to ask permission to diplomatic officials who

were in the building. It is very difficult for a device of the receiving state to gain

entry into the diplomatic building in order to prove that the right of misuse

diplomatic buildings.

It is been realized that granting absolute immunity to the premises of the

mission could harm the security and sovereignty of the receiving countries if there

is abuse of that right. Since the premises of the mission cannot be penetrated by

the receiving state apparatus as it gives an opportunity for the abuse of

inviolability. Again, in this case the protection provided by the receiving countries

Vienna convention is less able to accommodate the interests of the receiving state.

Inviolability of the premises of the mission granted by the Vienna Convention

1961 has been one aspect of the risky and shows the vulnerability of the settings

in the 1961 Vienna convention for the abused.

2. Vienna Convention is not enough to protect the receiving state.

1. Inability persona non grata and the waiver of immunity granted by

Vienna convention to protect the interest of receiving state

87

Actually, there are no a lot of protection afforded by the Vienna Convention

1961 to protect the receiving state. In fact, Vienna convention governs more about

the obligations that must be met by the receiving to the foreign diplomats who are

in their territory. The lack of protection afforded by the Vienna Convention

1961on the receiving state that brought this instrument into the spotlight of the

international community. Along with the frequent occurrence of abuse of

diplomatic immunity and privileges of the role of the Vienna Convention 1961 as

the main instrument in the regulation of diplomatic relations increasingly

questionable. The Vienna convention 1961 deemed no longer able to

accommodate the interests of the receiving state.

Generally, the Vienna Convention does not provide enough protection to

minimize the abuse of diplomatic immunity is often done. Since diplomatic

immunity and privileges granted to diplomatic agents near absolute, it often

brings harm to the receiving state. However, the Vienna convention granted two

rights owned by the receiving if a diplomat doing misuse diplomatic immunity or

criminal territory of the receiving state, namely: Persona non grata and Waiver of

immunity.

a. Persona non grata

The Vienna convention 1961 granted for the receiving state the right to

dismiss the foreign diplomats who are in their territory if he is no longer

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welcome. This is a step that can be and often taken by the receiving when they are

disillusioned with either personal action foreign a diplomat or diplomatic mission

policy, which can be interpreted, reflects the will of the sending state. Persona

non grata indeed one of the rights that the receiving state to directly drive a

foreign diplomat to return to the sending state. Therefore, persona non grata is a

move that could indicate the sending state's bargaining position in diplomatic

relations when they are treated unfair. Implementation persona non grata is often

encountered when the receiving discover foreign diplomats violating diplomatic

immunity and privileges either directly or indirectly injure the dignity of the

sending state.

However, essentially in diplomatic relations known reciprocity principle. In

diplomatic practice often found that the declaration of persona non grata by the

receiving state makes sending countries offended. Whereas, states generally treat

the foreign diplomats same as what they want their diplomats to be treated by the

receiving state where the diplomat in charge. However, there are some flaws

contained in the persona non grata when used as the settlement would be the case

of abuse of Vienna convention 1961. First, since the application of the principle

of reciprocity it is persona non grata declaration could disturb the tranquility of

diplomatic relations between the countries. It is possible that the diplomatic

practice later the scene of retaliation, whereby each country will not accept the

declaration was persona non grata to their diplomat then instantly replies with the

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same treatment. This is of course contrary to the purpose of diplomatic relations

which aims to maintain good diplomatic relations and dignified. Second, since the

declaration of persona non grata the sending state fully devolved to the sending

state to prosecute the diplomat who had been expelled. In this case the question

arises of the receiving state to what punishment will be applied by the sending

state to diplomatic officials concerned, whether the punishment be given that

according to what he has done or not. So, there is no guarantee about the

prosecution toward diplomats who have been declared persona non grata by the

receiving country. Even the worst thing is when the diplomat who had been

convicted of criminal violations released and not prosecuted in their home

countries once declared persona non grata. Therefore, the sending state does not

have any control of this so this is felt not fair while diplomats have brought harm

to the receiving state. Third, the fact that often occur frequently encountered

where the sending state does not provide for compensation for damage that has

been caused by the diplomat for the victim and the receiving country. Of course,

this does not bring a good deterrent for foreign diplomats and sending countries

since the violations committed diplomats they would not have a significant impact

for sending countries. Of course, this aspect is cornering the receiving countries

as the most frequent victims. Furthermore, the notion that if a guilty diplomat

who prosecuted after being declared persona non grata then it would disrupt

diplomatic performance is not appropriate. That a diplomatic mission does not

only consist of a diplomat but contain a lot of personnel with their respective

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functions. Obviously in this case the task which is left by that diplomat can be

taken over by other members of the diplomatic mission of the country while

waiting for the policy of the sending state to apply for the replacement diplomats.

Thus, it makes no sense when the trial of a diplomat who has committed an

offense or crime will massively disrupt the performance of a diplomatic mission.

While this might have some influence on the diplomatic relations among the two

countries but it will ultimately bring in to the good and dignified relationship.

This is because mutual respect and preserve the rights of one another in a

diplomatic relations.

b. Waiver of Immunity

Vienna convention also provides a remedy to the receiving when a foreign

diplomat who served their state of crime or abuse of diplomatic immunity and the

immunity that the waiver of immunity.251 This right granted the receiving state to

request the waiver of immunity of their diplomat. Basically, when the immunity

of diplomatic agents have been waived by the sending state, their immunity will

immediately ceased and become the ordinary person without any forms of

immunities. Provisions in the Vienna Convention for the waiver of immunity by

the sending state provide a remedy on paper, but rarely occur in practice.252

251 Article 32 of Vienna Convention 1961252 Gregory L. Stangle, op.cit, p. 60

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Since the diplomatic immunity deal with the immunity of his government,

consequently, it is the authority of sending state to decide whether the immunity

of diplomatic agents should or should not be waived on a particular case. The

diplomat cannot waive his immunity without the permission of the government,

and cannot object if his government decides to waive his immunity. That is

actually the problem, since the crime or abuse of diplomatic immunity receiving

adverse certainly receiving state has an interest to prosecute diplomats. In fact, the

state's interest is limited to sending a request to the sending state for waiver of

immunity of its diplomatic agent. It can be concluded that in this case again the

receiving did not have any control since the final decision is in the hands of the

receiving state if diplomatic immunity agent will be released or not. Thus,

difficulties in the application of waiver of immunity under diplomatic relations

practice is the political will and good faith of the sending state to do waiver of

diplomatic immunity if it finds them to act in violation of state law or abused

receiving immunity and diplomatic immunity. In January 2001 there was a case

where Russian diplomats sued for the case of drunk and ended up with crashed

two people causing one dead and the other was injured. However, Canadian

government asked to the Russian authorities to do waiver of immunity of their

diplomat but they refused to do it. As the result, the Russian diplomat cannot be

trial since the he possessed the jurisdictional immunity. The Russian authorities

stated that they will investigate incident and the trial will be done under Russian

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law.253 Based on that case, it is clear that even the waiver of immunity is the right

given to the receiving state but it does not enough protect them since the final

decision of the waiver of immunity depends on the sending state. Ideally, a right

owned by a party to be followed by an obligation for others to fulfill. In fact, this

does not apply to the waiver of immunity because the right receiving country to

do waiver of immunity is not followed by the sending state obligation to grant it

because everything depends on the policy of sending countries. In conclusion,

despite the Vienna convention 1961 has provided the right to request a waiver of

immunity, it is still in the interest of the receiving state cannot optimally

accommodated.

Actually, two rights which are owned by the state as an effort on the receiving

in case of criminal acts by diplomats or misuse of diplomatic immunity and

privileges of not more than remedy the loss of what has happened and bring harm

to the receiving state. In this case, the Vienna Convention submit completely to

the diplomat for the functioning of the immunity and privileges granted in good

faith. It is clear that the Vienna Convention does not provide sufficient prevention

of abuse on absolute immunity they have given to the diplomats. That largely

focus on the Vienna convention is rights that must be met by the receiving state to

foreign diplomats in the region. On the other hand, stipulation of the rights held

by the receiving state is a bit limited. Of course this creates a situation that is

253 Russia rejects request to waive diplomatic immunity in Ottawa crash, CBC News, http://www.cbc.ca/news/canada/story/2001/01/28/diplomat010128.html, accessed Jan 5th, 2013, 7:59 am

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unfair since diplomats have such absolute freedom while receiving state cannot do

much for damage resulting from misuse of their immunity and privilege of

diplomatic immunity.

Basically, the tendency for a state to enter into international relation is to

promote and protect the interests of its state. Similarly, diplomatic relations, in

addition to achieving a personal goal of a state of diplomatic relations is a mutual

relationship to strengthen friendship among nations and establishing cooperation

mutually beneficial to each other. In order to achieve a mutually beneficial course

requires a basic rule underlying relationship to each other so that the rights are

protected. Thus the 1961 Vienna convention as a rule for the basis of diplomatic

arrangements would have to be able to accommodate the interests of each party in

a diplomatic relationship. Intention of accommodating each party is to provide

fair rules in the sense of focusing to one side but it gives the right balance.

However, in this case the 1961 Vienna convention less able to accommodate the

interests of the receiving state as the party is in fact often impaired by the Vienna

Convention 1961 is still vulnerable to abuse by diplomats.

Hence, those reason makes amendments to the Vienna convention discourse

sticking out since the protection afforded by the Vienna convention persona non

grata and the waiver of immunity did not protect the interests of the receiving

state. Persona non grata and the waiver of immunity is nothing more than an

attempt to cure a problem of abuse of Vienna convention itself. Additionally,

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persona non grata and immunity waiver does contain risks in its application. As

the persona non grata of course can lead in to a disruption of diplomatic relations

among state since the diplomatic relations known the principles of reciprocity

Furthermore, although a diplomat has been declared persona non grata, the

sending state is not necessarily a guarantee that the diplomat who has committed

an offense and bring harm to the receiving as it should be brought to justice in

sending countries.. Similarly, the waiver of immunity that in the end the right is

not more as apparent authority because it ultimately keep sending state that are

entitled to waive of his diplomatic immunity. Actually, what the demands of the

international community today is a preventive measure that can reduce or

minimize the abuse of diplomatic immunity and privileges that can harm the

receiving countries and the impact on the disruption of diplomatic relations

between countries.

B. Urgency to amend as the result of modern development of

Diplomatic relation

Over the past 50 years over 1961 Vienna convention has become the main

basis regulating the practice of diplomatic relations. In recent decades, the Vienna

convention 1961 reaping a lot of criticism because it is no longer able to respond

to the needs of diplomatic relations that increasingly complex. Furthermore, the

discourse of an amendment to the 1961 Vienna convention began loudly voiced

since the convention was made 50 years ago so it makes sense that less can work

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best when implemented for now. Whereas, Vienna convention in 1961 was the

result of a treaty with multilateral treaties that are increasingly felt lacked and

needed an improvement.

Changing of era has brought development and progress, many countries are

beginning to apply the principles of democracy. Moreover the issue of the

protection of human rights increasingly received the attention. Some examples of

violations related to abuse of diplomatic immunity, such as murder, or treatment

course should not be considered to violate the rights of others. Since diplomats

have immunity from the jurisdiction of the receiving state then it is contradictory

to the efforts of the international community who are aggressively campaigning

for human rights protection.

Nowadays, the development and rapid progress in all fields also have an

influence on the existence of immunity and inviolability of the diplomatic

convention set in Vienna 1961. For example, technological advances made in

telecommunications systems lead role and function of diplomacy has been a lot of

shifting. In this case, sometimes the diplomat does not need to perform their

functions directly because of modern communication systems.254 Telephones, fax

machines and email have made instantaneous communication a daily

occurrence.255 Then, airplanes, railroads and highway networks make personal 254 Syahmin AK, Hukum Diplomatik Suatu Pengantar, op.cit, p.15255 James S. Parkhill, Diplomacy in The Modern World: A Reconsideration of The Bases

of Diplomatic Immunity in The Era of High-Tech Communications, 21 Hastings Int'l & Comp. L. Rev. 565, p. 578

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international visits a relatively safe and simple prospect. The diplomat's function

is facilitated by the new technology as well it is much different from when Vienna

convention was first enacted in 1961. So that, there must be a reconsideration of

diplomatic immunity and inviolability which given to the diplomat massively, it is

will correlate with the examination of what diplomats do in the modern world.256

The urgency of the Vienna Convention 1961 amendment increasingly

necessary since the international community demands to create a primary rule of

law capable of responding to changes in diplomatic era. Although in this case not

all the rules in the Vienna convention 1961 need to be changed, in some fairly

important article needs to be adapted to the needs and functions concretely and

current condition. For example, in the case of personal immunity and

inviolability, the stipulation of this aspect needs to be re-examined given the

current state of the preparation of Vienna convention 1961 with the condition

right now is much different. At present, the role of advances telecommunications

and often heads of state have direct high levels communications with other

countries which have had an impact on the role of diplomat. Although in fact

there are several aspects that have not changed much of the influence of

technology such as a duty to protect citizens of the sending country in the

receiving country, but generally the diplomatic duties is made easier by the

advancement of technology. That’s why the granting immunity and inviolability

256 Ibid.

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of the diplomats must be adapted to real functions of them currently which are

fairly shifted than when the first Vienna convention 1961 was enacted.

At the end, the decision to return to the States Parties to Vienna Convention

1961 follow-up to an unqualified Vienna Convention 1961 to respond to the rapid

development and advancement of the practice of diplomatic relations. Increasing

complexity of diplomatic relations and the need to better protect the interests of

the receiving state in diplomatic relations increasingly support the need for

change in some rules in the Vienna convention. The number of violations and the

use of diplomatic immunity and privileges have brought many losses and no

longer fit the original purpose of holding diplomatic relations. Awareness of the

international community of the importance of improving the rules contained in the

Vienna Convention reinforced the discourse of amendment that instrument.

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CHAPTER IV

CONCLUSION AND RECOMMENDATION

A. Conclusion

Situations where the Vienna Convention 1961 to be in the spotlight is cannot

be separated from the number of violations and abuse of some rules and privileges

set forth in the Vienna convention 1961. Basically, the Vienna Convention 1961

has provided two attempts to do by the receiving if there is misuse of diplomatic

immunity and privileges or criminal acts committed in the receiving state, namely

Persona non grata and the waiver of immunity. However, two attempts were not

more than a remedy what has happened and bring harm to the receiving state. It

becomes the serious issue behind the emergence of the discourse of Vienna

Convention 1961 amendment. Actually, there are several compelling reasons

underlying the need for the amendment of some aspects in the 1961 Vienna

Convention relating to protection of the receiving state, including:

a. The need for improvements to respond to the development of diplomatic

practice which increasingly complex.

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b. Some of the rules of the Vienna convention, especially regarding

diplomatic immunity and privileges are very vulnerable to misuse. It needs to be

revised in order to give more protection the receiving state.

c. Persona non grata and Waiver of immunity is not sufficient to protect the

interests of the receiving state.

c. The modern development has brought a shift in the function of diplomats in

diplomatic relations itself.

d. Global issues concerning the protection of human rights made diplomatic

immunity under the spotlight of the international community.

Thus in conclusion, there needs to be change in order to improve diplomatic

relations regulation in the 1961 Vienna convention so that it can respond to the

conditions of the present. Since any regulations or laws having the nature

responsive to change, the opportunity to amend the Vienna Convention 1961 is

widely open.

B. Recommendation

From those facts shown, it is important to improve the Vienna convention

1961 through amendment. There are some key aspects in the regulation contained

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in the 1961 Vienna Convention that require attention as the most commonly

abused and not in accordance with the original purpose, including:

a. Personal Inviolability and Immunity of a diplomat

b. Inviolability of the Bag of Diplomat

c. Inviolability of the Premises of the Mission

An amendment to refine the rules in some aspects is expected to minimize the

chances of abuse. It would be more able to accommodate the interests of the

receiving country which in practice often aggrieved over the vulnerability of the

articles in several aspects of the above. Then, the right held by the receiving state

during which only consist of Persona non grata and the waiver of immunity,

which is not quite effective, should also be enhanced. Especially regarding the

follow-up if there is abuse of diplomatic immunity or privilege that must be

followed by the sending state's obligation to prosecute the diplomat appropriate

with what he had done. Imposes obligations on the sending state must also give

the compensation to the receiving state or to the party who has been harmed for

the actions of their diplomats.

However, the amendment was not an easy thing to do and requires

consideration and preparation. Therefore, the proposal for the preparation of the

protocol is that it can be an alternative in this case. That protocol can add some

important notes or the terms and conditions of granting diplomatic immunity and

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privileges so as to minimize the possibility to be misused. Although in the end the

diplomatic immunity or privilege still exist is necessary to ensure that this aspect

is a better way to ensure diplomatic independence without sacrificing public

safety.

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