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Examining the Article 32 of VIENNA CONVENTION ON DIPLOMATIC RELATIONS, 1961

Diplomatic immunity in peril BY Anup Surendranath AND Shreya Rastogi

Posted on March 19, 2013

http://www.lawexams.in/legalarticles/2013/03/19/diplomatic-immunity-in-peril-by-anup-surendranath-and-shreya-rastogi/

From The Hindu

The privilege Daniele Mancini enjoys under the Vienna Convention, personally and as an Ambassador, is absolute. The marines issue should be resolved politically

The Supreme Court’s order restraining the Italian Ambassador from leaving India and the possibility of contempt proceedings against him are without any basis in law. Undoubtedly the Republic of Italy did file a writ petition through the Ambassador and he did submit an affidavit stating that the marines would return to India. However, those facts along with Italy’s Note Verbale that the marines will not be returning do not provide sufficient legal grounds for action against the Italian Ambassador. The order restraining the Ambassador and the potential contempt of court proceedings are a serious breach of India’s obligations to provide diplomatic immunity under the Vienna Convention on Diplomatic Relations, 1961.

Personal inviolability

Article 253 of the Indian Constitution requires Parliament to introduce a legislation to give effect to an international agreement. In light of this provision, Parliament enacted The Diplomatic Relations (Vienna Convention) Act, 1972 to give effect to India’s obligations under the Vienna Convention. Within this legal framework, two questions arise in the current context: (i) Was there sufficient legal basis for the Supreme Court’s order restraining the Italian Ambassador from leaving the country?; (ii) Can contempt proceedings be instituted against the Italian Ambassador personally for not adhering to the commitments made in the affidavit submitted to the Supreme Court?

The Supreme Court’s order restraining the Ambassador goes against the guarantee of personal inviolability of diplomatic agents. Article 29 of the Vienna Convention states that a diplomatic agent shall not be liable to any form of arrest or detention and the receiving state shall take all appropriate steps to prevent any attack on his person, freedom or dignity. While it is clear that in this case, Daniele Mancini did act in his official capacity while submitting the affidavit, Article 29 would protect him from any form of arrest and detention even if his actions were of a personal nature. It is precisely to avoid holding a diplomatic agent responsible for the acts of the sending state that Article 29 provides protection from any form of arrest or detention.

On the question whether the order restraining the Italian Ambassador from leaving India amounts to detention under Article 29, the judgment of the International Court of Justice in Congo v. Belgium (2002) is instructive. The ICJ noted that measures that raise the fear of arrest even if they do not in fact interfere with the actual fulfilment of diplomatic activities would go against the guarantee of personal inviolability under Article 29. The order of the Supreme Court restraining the Italian Ambassador from leaving India and the subsequent alert issued to all airports by the Ministry of Home Affairs goes against this fundamental protection granted to diplomatic agents.

Immunity and waiver

Governing the framework of diplomatic immunity is a fundamental commitment to the principle that diplomats in foreign countries cannot be held personally responsible for acts of the government they represent. Article 31 of the Vienna Convention provides that a diplomat shall enjoy immunity from the exercise of criminal and civil jurisdiction. The criminal immunity that Daniele Mancini enjoys, both personally and as an Ambassador, is absolute. There are a couple of exceptions to his civil immunity but those have no application in this case. In essence, diplomatic agents can literally get away with murder unless there is a waiver of diplomatic immunity.

The Supreme Court in the hearing on March 18 clearly does not dispute the position that in normal circumstances Daniele Mancini would have diplomatic immunity. However, the Court seems to be seriously considering the argument that the Italian Ambassador has waived this immunity. Those advocating the position that the Italian Ambassador has waived his diplomatic immunity rely on two acts of the Ambassador. They first cite the fact that the writ petition filed on behalf of the two marines was filed through the Ambassador and secondly, highlight the affidavit filed by the Ambassador assuring the Supreme Court that the marines would return. However, neither of these two acts is sufficient to establish a waiver of immunity. The Vienna Convention does recognise the possibility of a waiver of immunity under Article 32. However, under this provision, immunity has to be expressly waived by the sending state and there is no possibility of inferring a waiver of immunity from the acts of its diplomatic agents. It is evident that the Italian government has not sent any such express waiver.

The argument has also been raised that this position on waiver has been altered by the legislation Parliament introduced to enforce the Vienna Convention. That claim is true to the extent that the 1972 Act recognises that, along with the sending state, the Head of the Mission can also waive immunity. However, what the 1972 Act does not alter is the requirement that there must be an express waiver of immunity. There has been no express waiver of immunity in the current case either by the Republic of Italy or its Ambassador to India.

Participation in proceedings

The filing of a writ petition through the Ambassador on behalf of the marines cannot be considered a waiver of immunity. In all proceedings so far, it has been Italy’s position that India lacks territorial jurisdiction to try the marines along with the claim that the marines are protected by sovereign immunity. It would lead to absurd consequences if the argument that participation in proceedings to question jurisdiction is construed as waiver of diplomatic immunity. Similarly, reneging on the assurance given to the Supreme Court in his affidavit cannot be the basis for instituting contempt proceedings against the Italian Ambassador. Providing such an affidavit does not meet the requirement of an express waiver under Article 32(2) of the Vienna Convention. Courts in other parts of the world, like the England & Wales Court of Appeal in Propend Finance Pty Ltd & Ors v Sing & Anr (1997), have held that an undertaking given by a diplomatic agent in a court proceeding would not amount to an express waiver of immunity in contempt proceedings that may be initiated. However, under Article 32(3) of the Vienna Convention, immunity cannot be claimed when a counter-claim is filed in a proceeding initiated by the diplomatic agent. To make that exception to diplomatic immunity applicable in this case, any potential contempt of court proceeding against the Italian Ambassador will have to be viewed as a counter-claim in the writ petition filed on behalf of the marines. However, the law on contempt of court in India does not permit such a reading. According to the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, the contempt of court proceedings are separate and independent of the parent matter.

Constitutional claims

Article 129 of the Constitution empowers the Supreme Court to punish for its contempt. It has been argued that this constitutional provision must prevail over diplomatic immunity as Section 2 of the Diplomatic Relations Act mentions the overriding effect of the Vienna Convention over ‘any other law’ which would exclude the Constitution. While the Indian Supreme Court is yet to clarify this issue, the position in the United States is well settled. In a case where the domestic help of a diplomat from Bangladesh sought to enforce his right against servitude under the Thirteenth Amendment, the United States District Court (Southern District of New York) in Ashik Ahmed v AHM Sadiqul Hoque (2002) followed precedent established by the U.S. Supreme Court to hold that constitutional claims would not trump diplomatic immunity. The Court held it was a doctrine created not solely by a congressional enactment but from international treaty obligations, entered into by the executive branch with the consent of the Congress. The Government of India is a signatory to the Vienna Convention by virtue to powers vested by the Constitution, which has then been made a part of our domestic legal system as per the procedure provided in the Constitution.

Of course, the actions of the Italian government demonstrate wanton disregard for the authority of the Supreme Court and are a breach of faith and diplomatic protocol. However, none of that gives either the Government of India or the Supreme Court any legitimate legal recourse against the Italian Ambassador. This issue must be resolved squarely in the political realm. By restraining the Italian Ambassador and contemplating contempt proceedings, the Supreme Court and the Government of India are seeking legal solutions where none is available.

(Anup Surendranath is an Assistant Professor of Law and Shreya Rastogi is a final year law student at National Law University, Delhi)

Examining the Article 32 

of VIENNA CONVENTION ON DIPLOMATIC RELATIONS, 1961

Article 32 of Vienna Convention of Diplomatic Relations, 1961 states:

1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State.

2. Waiver must always be express.

3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.

4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary.

Examination:

1. It is clear that Article 32 specifies the rules on waiver of immunity from jurisdiction.

2. No other section deals with the clause for waiver of immunity from jurisdiction. 

3. Hence, examining this Article alone would suffice to decide if the receiving state can waive the immunity or not.

Observations:

1. Para 1 clearly states that the immunity can be waived by sending State. It is to be noted that nothing is mentioned about the receiving State.

2. Para 2 specifies that the waiver must always be express.

3. Para 3. deals with the initiation of proceedings by a diplomatic agent, which implies that it pertains to initiation of the process of waiver of immunity by a diplomatic agent. This too has nothing to do with the receiving State.

4. Para 4 is continuation of Para 3, where it deals with the necessity of a separate waiver of immunity in respect of the execution of the judgment.

Conclusion:

It is clear from the reading of the Article 32 that the Vienna Convention of Diplomatic Relations, 1961, does not give any authority to the receiving State to waive the immunity of a diplomatic agent or of a person enjoying immunity from jurisdiction under Article 37, either explicitly or implicitly.