In recent time there is a dispute row between India and the united states after arrest of indian deputy consual general devyani khobragade in new york for allegation of violation of domestic labour law.India protest this for violation of vienna convention on diplomatic relations,but there is a distinct between 1961 vienna convention on diplomatic relatiions covers the privilegs and immunities of diplomatic agents ,the treatment that consular staff are entitled to is laid down in the 1963 vienna convention on conular relations .at the deputy consul general at the indian consulate in new york ,Ms. Khobragade was at that time of her arrest ,a member of consular staff and not a diplomat.lets see what is the Vienna convention on diplomatic relations and how it works.
The Vienna convention on diplomatic relations of 1961 is an international treaty that defines a frame work for diplomatic relations between independent countries .it specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of concern or harassment by the host country.
Throughout the history of sovereign nations ,diplomats have enjoyed a special status ,their functions to negotiate agreements between states demands certain special privileges. An envoy from another nation is traditionally treated as guest ,their communications with their home nation treated as confidential ,and their freedom from coercion and subjugation by the host nation treated as essential.
The first attempt to codify diplomatic immunity into diplomatic law occurred with the congress of Vienna . the present treaty on the treatment of diplomats was the outcome of a draft by the international law commission. The treaty was adopted on eighteen april,1961 by the united nations conference on diplomatic intercourse and immunities held in Vienna ,Austria and first implemented on 24 april,1964.
The treaty is an extensive document containing 53 articles. Following is a basic overview of its key provisions.
Article 9 the host nation may at any time and for any person declare a particular member of the diplomatic staff to be person non grata ( refers to a foreign person whose entering or remaining in a particular country is prohibited by the government) the sending state must recall this person within a reasonable period of time)
Article 22-the premises of a diplomatic mission ,such as an embassay are inviolate and must not be entered by the host country except by permission of the head of the mission nor seize its documents or property.
Article 27- the host country must permit and free communication between the diplomats of the mission and their home country .a diplomatic bag must never be opened even on suspicion of abuse.
Article 29 diplomats must not liable to any form of arrest or detention .they are immune from civil or criminal prosecution.through the sending country may waive this right under article 32 under article 34, they are exempt from most taxes and under article 36 they are exempt from most customs duties.
Article 31.1c ; actions not covered by diplomatic immunity,professional activity outside diplomt/s official functions.
Article 37- the family members of a diplomat that are living in the host country enjoy most of the same protections as the diplomats themselves.
The Vienna convention on consular relations of 1963 is an international treaty that defines a framework for consular relations between independent countries .it mainly performs two functions (1) protecting in the host country the interests of their countrymen (2) furthering the commercial and economic relations between the two countries while a consul is not a diplomat .they work out of the same premises and under this treaty , they are afforded most of the same privilegs, including a variation of diplomatic immunity called consular immunity .it has been ratified by 176 countries.
It contain 79 articles following are key provisions
Article 5 protecting in the receiving state the interests of the sending state and its nationals as well as developing the commercial ,economic,cultural and scientific relations between the two countries.
Article 23- the host nation at any time and for any reason declare a particular member of the consular staff to be persona non grata.
Article 31 consular premises must be protected form intrusion or damage.
Article 35- freedom of communication.
Article 36- foreign national who are arrested or detained be given notice without delay of their right to have their embassy or consulate notified of that arrest . if the detained foreign national so requests, the police must fax that notice to the embassy or consulate.which can then check up on the person the notice can be simple as a fax, giving the persons name ,the place of arrest ,reason for the arrest.
So we can say that is is evident that the allegations against Ms. Khobragade relate to her personal and not immune from the jurisdiction of us courts in relation to this allegation and host country under article 41(1) have jurisdiction to try an offence .so Ms. Khobragades arrest to be legal,in addition to try her for the offence so article 41(1) are satisfied(1) her arrest relates to a grave offence(2)) her arrest was pursuant to a decision by a competent judicial authority.
Now in terms of international dispute settlement ,india has few legal options recourse to the international court of justice and other option is iron out their differences through diplomatic and legal channels and it is the better way to build mutual co-operation.
NISHANT KUGASIYA
References:
www.wikepedia.org
the hindu ,the Indian express
