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The special legal position accorded to diplomatic agents by receiving states is generally referred to by this phrase, with the words in the order given. The details are spelt out in the Vienna Convention on Diplomatic Relations, but almost invariably require legislation by a receiving state for them to be operative domestically. The justification for treating diplomats in this special way is that such measures are necessary for diplomatic functions to be executed effectively. This is not always understood by a state\'s public opinion, which can lead to adverse comment on the matter. But the very potent consideration, which ensures that it is exceptionally rare for states not to endorse and honour this aspect of diplomatic law, is the principle of reciprocity. That is, if state A\'s diplomats are treated in a less-than-proper manner by state B, it is highly likely that state B\'s diplomats in state A will suffer the same fate. So important is the role played by diplomats, and so keen the wish of sending states to guarantee their personal safety, that it is extremely unusual for a state not to take great care to guard against that eventuality.
The special legal position has three aspects. First, there are certain inviolabilities enjoyed by a diplomatic mission and its diplomatic staff. These apply to official premises and private residences, the mission\'s archives and documentation, and its correspondence, none of which may be entered or tampered with by the receiving state. The persons of diplomatic agents and of their family members residing with them are also inviolable, in the sense that they may not be arrested or detained. Secondly, such individuals enjoy immunity from the criminal jurisdiction of the receiving state and, in most respects, from its civil and administrative jurisdiction. Thirdly, they enjoy certain privileges, such as exemption from dues, taxes, and many customs duties, from the liability to undertake public service, and (generally) from having to submit their baggage to inspection at frontier controls.
This special legal position applies only to diplomats who enjoy diplomatic status within the receiving state, or who are in transit through third states on their way to or from such a posting. Thus they do not apply to diplomats who just happen to be in a foreign state.
It should be noted that diplomats’ jurisdictional immunities do not place them outside the receiving state\'s legal system, but only beyond the normal consequences of alleged breaches of the law. Thus if a diplomat claims immunity in respect of an allegedly criminal act, it is well understood that he or she may be declared persona non grata by the receiving state. Furthermore, if a diplomat appears to be in breach of an obligation which exists under the civil, and not the criminal, law, but claims diplomatic immunity, the receiving state may press the sending state to ensure that the obligation is fulfilled. In any particular case, either criminal or civil, a sending state may waive a diplomatic agent\'s immunity.
One immunity that often gives rise to heated complaints by members of the public is that which allows diplomats to go unpunished for breaches of car-parking regulations. So much was this so in Britain that, in the mid-1980s, she made it known that she was going to keep a record of such matters and, ultimately, would ask for the removal of persistent offenders. This produced a dramatic reduction in such offences.
See also consular privileges and immunities; diplomatic bag; diplomatic law; diplomatic premises; first-arrival privileges. |
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