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CHAPTER ONE GENERAL INTRODUCTION
1.1 Background to the Study
The rule of international law governing diplomatic relations were the product of long-established state practice reflected in the legislative provisions and judicial decisions of national law. The law has now been codified to a considerable extent in the Vienna Convention on Diplomatic Relations. Parts of the Convention are based on existing practice and other parts constitute a progressive development of the law. However, as ratifications mount up even the latter portions provide the best evidence of generally acceptable rules. The convention presently has at least 150 parties. The importance of the principles of law is embodied in the case concerning United States v Diplomatic and Consular Staff in Tehran1 and judgment of 24th May 19802. In its judgment on the merits, the court observed that „the obligations of the Iranian Government here in question are not merely contractual –but also obligations under general international law3. In that case, the government of Iran was held responsible for failing to prevent and for subsequently approving the actions of military in invading the United States Mission in Tehran and holding the diplomatic and consular personnel as „hostages‟.
For English courts, the Diplomatic Immunity Act of 1708 was declaratory of the common law. The Act of 1708 has been repealed and replaced by the Diplomatic Principles Act of 19644 which sets out in a schedule those provisions of the convention which are incorporated into the law of the United Kingdom. The same Act replaces Section 1(1) of the Diplomatic Immunities (Commonwealth countries and Republic of Ireland) Act of 1952, which provides for immunity from suit. The Vienna Convention
1International Court of Justice Reports (1979), p. 19 2 Ibid (1979), pp. 30-43 3 Ibid 4 Empson v. Smith (1960),1 QB 426
does not affect rules of customary land governing questions not expressly regulated by its provisions5 and, of course, states are free to vary the position by treaty and tacit agreements based upon subsequent conduct. Diplomacy comprises any means by which states establish or maintain mutual relations, communicate with each other, or carryout political or legal transaction, in each case through their authorized agents. Diplomacy in this sense may exist between states in a state of war or armed conflict with each other, but the concept relates to communication, whether with friendly or hostile purpose, rather than the material forms of economic and military conflict. Normally, diplomacy involves the exchange of permanent diplomatic missions and similar permanent or at least regular representation is necessary for states to give substance to their membership of the United Nations and major inter-governmental organizations.
International law, along with diplomatic immunity is not impose on state but is generally accepted through consensus and reciprocity, on the basis that peaceful compromise must override violent confrontation6.
Diplomats ensure that communications between states is made possible. As a consequence they are granted certain immunities to facilitate these function within the state to which they are accredited7.
Diplomatic immunity means that foreign diplomats are not subject to the jurisdiction of local courts in respect of their officials and in most instances, their personal acts8.