Pranav Karwa & Gaurav Karwa, NLU, Jodhpur & NUJS, Kolkata.
A Comparative Analysis Of Development In Discourse Of Human Rights And Diplomatic Immunity Pre And Post 2010
Abstract
Vienna Convention on Consular Relations, 1963 (hereinafter “VCCR”) and Vienna Convention on Diplomatic Relations, 1961 (hereinafter “VCDR”) are considered to be self-contained and to be very forthcoming in terms of there implementation by the countries who are party to it. The functioning of these treaties works on complete reciprocity. These instruments confer immunities to various diplomats and consular officers from both civil and criminal liabilities. It is well settled that the conferment of these immunities is absolutely necessary for these officers to perform their duties in the receiving states. However, despite its importance in international law dynamics, immunity to diplomats has been one of the most debated subjects throughout the life of these instruments. The debate has centred around the misuse of immunity to commit serious crimes and various human rights violations. Many human rights having been largely codified in ICCPR and UDHR have attained the status of “jus cogens” and have thus become sacrosanct. Diplomatic immunity is, on the other hand, “jus cogens” as well. Thus, there has been a clash between these sacrosanct principles in the form that there have been instances both pre and post 2010 of serious crimes and human rights violations committed by diplomats and consular officers in the receiving state. These officers having immunity have gone back to their home states scot free from any prosecution. Till date the only remedy available in the VCDR is to declare the individual as “persona non grata” and nothing more. There have been arguments of limiting and reconsidering the immunity altogether. The paper aims to analyze this clash of arguments between immunity and human rights, both pre and post 2010 and also provide more insights to progress and provide a possible reconciliation between two “jus cogens” norms.
The scope of this paper is to provide a comparative view of developments in the approach of treating diplomatic immunity and human rights together between post-2010 and pre-2010. The focus is to highlight practical insights of various scholars and both domestic and international courts towards treating these two sacrosanct principles. Further, the author plans to make comments and suggestions on the possible future of these norms and possible ways to reconcile them.
