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-relations1961.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

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

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.6 6 Syahmin AK, Hukum DIplomatik Suatu Pengantar, 2nd Edition, Armico, Bandung, 1988, p.16 7 Setyo Widagdo and Hanif Nur Widhiyanti, op. cit., p. 12

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

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
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
10

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 Dewis 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
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
12

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,
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
14

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

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 its deemed necessary as long as it is notified by the all contracting parties.
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
16

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:
N.M.Abdulraheem, Privileges and Immunities Diplomatic in Nigeria: Limitations and Waivers, http://www.unilorin.edu.ng/publications/abdulraheemnm/PRIVILEGES_AND_IMMUNITIES_O F_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-kekebalankeistimewaan-dan.html , October 9, 2012
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a. Mission b. c.
d. e.

Inviolability of the premises and the private residence of Diplomatic

Inviolability of the Diplomatic Bag Inviolability of the mission archives and communication Inviolability not be subpoenaed as witnesses 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:
20

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

10

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

Law,

11

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. 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

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

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12

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 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
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.
26

13

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

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
Eric C. Surette, J.D, Privileges, Immunities, and Disabilities , September 2012, 3 B C.J.S. Ambassadors & Consuls. 12, p.12 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.74
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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 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

32 33

Ibid. Syahmin AK, Op.cit, p.71

15

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 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.

Yearbook of International Law Commission ( ILC ), 1958, p.94-95 in Sumaryo Suryokusumo, Op.cit p.60

34

16

"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 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
35 36

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

17

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 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

Kejahatan dalam Masyarakat dan Upaya http://siskapuspitaningtyas.wordpress.com/ October 9, 2012 , 9:59 pm 38 Jawahir Thontowi, Op.cit, p.1

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Penanggulannya,

18

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. E. 1. Research Method Object of Research

Urgency of amendment Vienna Convention 1961 on diplomatic relation related to the protection of receiving state 2.
a.

Legal Materials Primary Legal Material: Vienna Convention 1961 on Diplomatic

Relation

Hukum Perjanjian Internasional : Amandemen dan Modifikasi Terhadap Perjanjian, http://kuliahade.wordpress.com/2010/06/24/hukum-perjanjian-internasional-amandemen-danmodifikasi-terhadap-perjanjian/

39

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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.

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CHAPTER II A. 1. Vienna Convention 1961 on Diplomatic Relation 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 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

Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.13 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-pentingdan-sarananya/ , accessed November 27, 2012, 8:05 pm 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
41

40

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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 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
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, Satows 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 Diplomatics handbook of International Law and Practice, 2nd Edition, Martinus Nijhoff Publishers, The Haque/ Boston/London, 1979. P.14 46 Ibid 47 J.G. Starke, Op.cit.
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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 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

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 50 In Vienna Convention 1815, the diplomatic rank classification consist of : Ambassadors and Legates, Minister Plenipotentiary and Envoys Extraordinary and Charge daffaires . 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.89 51 Ali Sastroamidjojo, Op.cit, p.166 in Setyo Widagdo and Hanif Nur Wihiyanti, Op.cit, p.9

48

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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 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:

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 54 Ibid. p.10-11

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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 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
Article 13 of United Nations Charter Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.16 57 Sumaryo Suryokusumo, Op.cit, p.13 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.13
56 55

25

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 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

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 62 Ibid.

61

26

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: 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)

63

Martin Dixon, Op.cit, p.190

27

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.

c.

Administrative and technical staff 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
Sumaryo Suryokusumo, Op.cit, p.15 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, 118-119
65 64

28

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. 2. 3.

4.

Immunity from every form of legal proceedings Inviolability of premises and archives Currency Privileges 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.
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 68 Compilation as drawn from: C. Wilfred Jenks, International Immunities at xxxxvi. (Oceana Publications, 1961).
67

29

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 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

69 70

Sumaryo Suryokusumo, Op.cit, p. 69-70 Setyo Widagdo, Op.cit, p.100 71 Liselotte B. Watson, The Naval Attach and International Law, 17 JAG Journal 139, p. 142

30

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 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

Charles G. Fenwick, International Law, 3rd Edition, 1982, p.202 Syahmin AK, Op.cit, p. 119 74 Departemen Luar Negri Pedoman Tertib Diplomatik dan Protokol II Bp 03-D, 1969, Jakarta, p.38
73

72

31

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 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

75 76

Setyo Widagdo, Op.cit Article 29 of Vienna Convention 1961 77 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p.100

32

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 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

Ibid. 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 selfjurisdiction 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.cit
79

78

33

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 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 means82 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
Eric C. Surette, J.D., Applicability of Diplomatic Immunity Under Vienna Convention and Diplomatic Relations Act, Op.cit, p.365 82 ICJ Reports, 1980, http://www/icj-cij.org/docket/files/64/6291.pdf, accessed December 17, 2012
81

34

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 attach 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

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
83 84

Liselotte B. Watson, Op.cit Ibid 85 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p. 116

35

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 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

Rina Goldenberg, Abuse of Diplomatic Immunity: Is The Government Doing Enough?, 1 ILSA J.Int'l & Comp.L, p. 199 87 Sumaryo Suryokusumo, Op.cit, p.51 88 Ibid. 89 Ibid.

86

36

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 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

90

Liselotte B. Watson, The Naval Attach and International Law, 1 7 JAG Journal 139,

p. 139 Sumaryo Suryokusumo (2005) stated that Eric C. Surette, J.D, Op.cit, p. 12 93 Gregory L. Stangle, When Diplomacy Meets Illegality: Reevaluating The Need for The Diplomatic Bag, 3 Dig. Int'l L.51, p.54
92 91

37

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 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

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/OW/Reciprocity.html, accessed December 10, 2012 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.72

94

38

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

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 98 Veronica L. Maginnis, Op.cit, p. 991 99 Leslie Shirin Farhangi, Insuring Against Abuse of Diplomatic Immunity, 38 Stan. L. Rev. 1517, p.1518 100 Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.67-68

97

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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 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
Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p.74 Gregory L. Stangle, op,cit, p.54 103 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.70 104 Sumaryo Suryokusumo, Op.cit, p 72-73 105 Ibid
102 101

40

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.
107

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

nature, but instead as territorial. This shift of political theory necessarily eroded 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
Ibid Gregory L. Stangle, Op.cit, p. 54 108 Ibid 109 Ibid 110 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. 185
107 106

41

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 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
111 112

Ibid Ibid 113 Veronica L. Maginnis, Op.cit, p. 991-992 114 Stephen L. Wright, Op.cit, p.185

42

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 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

Michael B. McDonough, 1997, Privileged Outlaws: Diplomats, Crime and Immunity, Op.cit, p. 478 116 Jawahir Tonthowi, Op.cit, p. 5 117 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.190 120 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.117

115

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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 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
121

Gregory L. Stangle, Op.cit, p.54

122 123

Ibid Ibid 124 Leslie Shirin Farhangi, Op.cit, p.1519 125 Ibid.

44

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 it provides the widest possible opportunity in carrying out the task without interference.127 Setyo Widagdo (2008) stated that, a diplomatic envoy couldnt 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
Ibid Syahmin AK, Hukum Diplomatik Suatu Pengantar, Op.cit, p.71 128 Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit, p. 78 129 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.
127 126

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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 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.
130 131

Negotiating with the government of receiving state;

Setyo Widagdo and Hanif Nur Widhiyanti, Op.cit Third paragraph of Preamble of Vienna Convention 1961 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&us g=AFQjCNFWmqWumVfihXcQJW8rxC9arLRUXg&bvm=bv.1354675689,d.bmk

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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 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).
Article 3 of Vienna Convention 1961 clause 1 Tania Sebastian, Diplomatic Immunity versus Harm to the Individual: An Attempt at Appraisal, http://ssrn.com/abstract=2053426 135 Ibid 136 J.G. Starke, Introduction to International Law, Butterworths, 1989, p.421 137 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
134 133

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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 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:
138

Ibid

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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 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
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.70 140 Paragraph 1 of Article 22 of Vienna Convention 1961 141 Paragraph 2 of Article 22 of Vienna Convention 1961 142 Muhammad Munir, Op.cit, p.42
139

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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 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
Paragraph 3 of Article 22 of Vienna Convention 1961 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.42
144 143

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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

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
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. 147 Paragraph 5 of Article 27 of Vienna Convention 1961
146

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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 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

148 149

Article 29 of Vienna Convention 1961 on Diplomatic Relations Article 30 paragraph 1 of Vienna Convention 1961 on Diplomatic Relations 150 Article 37 paragraph 1 of Vienna Convention 1961 on Diplomatic Relations 151 Syahmin AK, Hukum Diplomatik dalam Kerangka Studi Analisis, Op.cit, p.135

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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 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.
152 153

Muhammad Munir, Op.cit, p. 43 Ibid 154 Ibid 155 Paragraph 1 of Article 31 of Vienna Convention 1961

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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 subparagraphs 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 resident156

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 witness157. 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.
156 157

Immunity in The Third State

Paragraph 3 of Article 31 of Vienna Convention 1961 Paragraph 2 of Article 31 of Vienna Convention 1961 158 Muhammad Munir, Op.cit, p.44 159 Ibid

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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 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.

160

Paragraph 1 of Article 40 of Vienna Convention 1961

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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: 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:
Paragraph 1 of Article 23 of Vienna Convention 1961 Muhammad Munir, Op,cit, p. p.45 163 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.46
162 161

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

forming part of his household including articles intended for his establishment165

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
165 166

Paragraph 1 of Article 36 of Vienna Convention 196 Article 35 of Vienna Convention 1961 167 Muhammad Munir, Op.cit

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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 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
Muhammad Munir, Op.cit, p.30 Ibid, p. 30-31 170 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 Apostles letter. See Ibid p.89-92 171 Ibid 172 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
169 168

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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 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

Muhammad Munir, Op.cit, p.48 See Matte ur-Rahman, Al-alakat al-Dahlomasla Ak Dawlia ala Dawe 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.cit 177 See Sarksi, supra note 6.V.I, p,296 in Muhammad Munir, Op.cit 178 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
175

174

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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 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
See in The Holy Quran Text, Translation and Commentary by Abdullah Yusuf A.H, published by Amann Corporation Corporations Maryland, USA, p.243 180 Hamidullah, Supra note 30, para.291 in Muhammad Munir, Op.cit, p.49 181 Matteur Rahman, supra note 31,p. 186 in Muhammad Munir, Ibid
179

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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

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
Ibn Al-Qayyim, Zadul Maad, v.III, p.29 in Muhammad Munir, Op.cit 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
183 182

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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 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 laws founding fathers.186 It is a right that has
N. M. Abdulraheem, Op.cit, p.10 Ibid 186 Jean dAspremont, Persona Non Grata, R. Wolfrum edition, Max Planck Encyclopedia of International Law, 2009, p. 1
185 184

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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 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
187 188

Ibid Ibid 189 Sumaryo Suryokusumo, Op.cit, p.171 190 Article 9 paragraph 1 of Vienna Convention 1961

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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 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

ICJ, Diplomatic and Consular Staff in Teheran, paragraph 83. See in Jean dAspremont, Op.cit, p.3 Analisa Kasus Persona Non Grata, http://serba-serbiceritaseharihari.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-inrape-case-persona-non-grata, accessed Feb 5, 2012
192

191

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because the receiving state does not have the authority to prosecute foreign diplomats as they have diplomatic immunity. 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 agents 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:

Article 50 of the Articles on State Responsibility for Internationally Wrongful Act, State Responsibility 195 Ibid 196 Ibid

194

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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.
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
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 dAspremont , p.6
197

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foreigners are respected.200 However, the effectiveness and choice of each of these 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.
Ibid Tania Sebastian, Op.cit, p. 10 202 Analisa Kasus Persona Non Grata, http://serba-serbiceritaseharihari.blogspot.com/2010/04/analisa-kasus-persona-non-grata.html, accessed Feb 5, 2012
201 200

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b.

Waiver of immunity

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.

203 204

Article 32 paragraph 1 of Vienna Convention 1961 Article 32 paragraph 2 of Vienna Convention 1961

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However, when the Canadian Government asked the Russian Government to waive the immunity of that diplomat actually they refused it. Then, the Russian 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

CBC News Canada, http://www.cbc.ca/news/canada/story/2001/01/28/diplomat010128.html, accessed Jan 3, 2012

205

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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 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,

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.686 207 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 Moch. Basarah, Op.cit N A Maryan Green, International Law, Law of Peace, Mac Donald and Evans Ltd, London, 1973, p.181
210 209

206

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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. 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
SUmaryo Suryokusumo, Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial, Op.cit Ibid, p.685 213 J.L Brierly, Law of Nations, p. 22 in Sumaryo Suryokusumo, Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial, 686-687 214 Ibid, p.687 215 Sumaryo Suryokusumo, Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial, Op.cit, p.690
212 211

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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 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

ICJ report, 1952, p. 93 in Sumaryo Suryokusumo, Yurisdiksi Negara vs Yurisdiksi Ekstrateritorial, Op.cit, p. 690 217 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

216

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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 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
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. 430 222 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.cit

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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 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

Paragraph 2 of Preamble of Vienna Convention 1961 Amy Zeidman, Op.cit 226 I. Sinclair, The Vienna Convention on the Law of Treaties, 1984, p.106 in Amy Zeidman, Op.cit 227 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.
225

224

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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 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

228

Article 40 paragraph 1-2 of Vienna Convention 1969 on Law of Treaties

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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 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

229

Paragraph 4 of preamble of Vienna Convention 1961

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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 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. 1. Personal Immunity and inviolability 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
William G. Morris, 2007 Solutions to The Problems of Diplomatic Crime and Immunity, 36 Hofstra L.Rev. 601, p.601 231 Ibid. 232 Ibid.
230

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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 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;

233

Ibid.

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an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.234
(c)

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 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
234 235

Article 31 of Vienna Convention 1961 Article 29 of Vienna Convention 1961

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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 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
Rosalyn Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience, 79 Am. J. Int'l L. 641, p.649-650 237 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-leavesphilippines. Accessed Jan 20, 9:55 pm
236

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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 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

239

Ian Brownlie, Principles of Public International Law, Clarendon Press, London, 1990,

p.287

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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 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
240

Article 27 paragraph 3 of Vienna Convention 1961

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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 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
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. 429 242 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 243 Ibid. 244 http://www.mmrree.gob.ec/2012/com012.asp. Accessed January 22, 2013 12:21
241

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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 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
245

Article 22 paragraph 1 of Vienna Convention 1961

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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 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

http://www.thedailystar.net/newDesign/news-details.php?nid=120606, accessed January 26, 2012, 8:03 pm 247 Ibid.

246

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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 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
Article 22 of Vienna Convention 1961 paragraph 3 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
249 248

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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 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
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.
250

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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 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
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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 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

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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 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
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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 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

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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 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
251 252

Article 32 of Vienna Convention 1961 Gregory L. Stangle, op.cit, p. 60

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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 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
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
253

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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 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

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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, 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.

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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 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.

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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 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
Syahmin AK, Hukum Diplomatik Suatu Pengantar, op.cit, p.15 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. 578 256 Ibid.
255 254

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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. Thats why the granting immunity and inviolability 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

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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. 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

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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 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 Inviolability of the Bag of Diplomat Inviolability of the Premises of the Mission

b. c.

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

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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 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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