The Historical Evolution of the Principle of Diplomatic Inviolability

Diplomatik Dokunulmazlık İlkesinin Tarihsel Gelişimi

Lama Allan ABUSAMRA

The article provides a comprehensive overview of the historical development and legal frameworks surrounding diplomatic immunity. It explores the origins of diplomatic immunity, dating back to ancient civilizations, and its evolution over time, emphasizing its significance in ensuring the safety and protection of foreign diplomats. The focus then shifts to the Vienna Convention on Diplomatic Relations (1961), a pivotal global agreement governing diplomatic conduct. The Convention’s key provisions, such as inviolability of mission premises and exemptions to diplomats’ civil immunity, are highlighted. Additionally, the abstract delves into consular immunity and a notable legal case, offering insights into the complexities of diplomatic and international legal practices. Overall, the article provides a thorough examination of diplomatic and consular immunity, incorporating historical traditions, legal principles, and contemporary implications in the realm of international law.

Diplomatic Immunity, Historical Development, Legal Frameworks, Origins, Ancient Civilizations, Evolution, Vienna Convention On Diplomatic Relations, Global Agreement, Inviolability, Mission Premises, Civil Immunity, Consular Immunity, Legal Case, International Law.

Makale, diplomatik dokunulmazlığı çevreleyen tarihsel gelişim ve yasal çerçevelere kapsamlı bir genel bakış sunmaktadır. Makalede diplomatik dokunulmazlığın kökenleri eski medeniyetlere dayanarak ve bu medeniyetlerin değişimi üzerinden incelenerek bu dokunulmazlığın yabancı diplomatların güvenliğini ve korunmasını sağlamak açısından önemi vurgulanmaktadır. Sonrasında Diplomatik İlişkiler Hakkında Viyana Sözleşmesi’ni (1961) işleyen makalede, misyon binalarının dokunulmazlığı ve diplomatların kişisel dokunulmazlığı gibi Sözleşme’nin temel hükümleri vurgulanmaktadır. Çalışma ayrıca konsolosluk dokunulmazlığına ve dikkate değer bir yasal vakaya inerek diplomatik ve uluslararası hukuk uygulamalarının karmaşıklıklarına dair fikirler sunmaktadır. Genel olarak makale, uluslararası hukuk alanındaki tarihsel gelenekler, yasal prensipler ve çağdaş etkiler üzerinden diplomatik ve konsolosluk dokunulmazlığının kapsamlı bir incelemesini sunmaktadır.

Diplomatik Dokunulmazlık, Tarihsel Gelişim, Yasal Çerçeveler, Kökenler, Eski Medeniyetler, Değişim, Diplomatik İlişkiler Hakkında Viyana Sözleşmesi, Küresel Anlaşma, Dokunulmazlık, Misyon Alanları, Kişisel Dokunulmazlık, Konsolosluk Dokunulmazlığı, Yasal Vakıa, Uluslararası Hukuk.

1. INTRODUCTION

Diplomatic immunity, a longstanding tenet of customary international law, was established to safeguard foreign government personnel stationed overseas from reprisals during times of international wars and to foster civilised international relations.¹

The foundations of modern diplomacy were established during the period of Renaissance Italy in the 15th century and further developed with the creation of the Westphalian system in the 17th century. However, the basic principles of diplomacy have existed since the emergence of social communities and political collectives, dating back to ancient times. Nicolson (1963, 2) states that the origins of diplomacy can be traced back to a time before recorded history. However, based on the evidence available, the earliest documented diplomatic activity occurred approximately 3400 years ago. This involved interactions between the Eighteenth Dynasty of Egypt during the New Kingdom period and other major powers in the ancient Near East.²

2. WHERE DID DIPLOMATIC IMMUNITY ORIGINATE?

Diplomatic immunity has been a longstanding characteristic of diplomatic interactions for millennia. The tradition of sparing messengers instead than executing them upon arrival likely originated from the earliest encounters between nations. However, it was in ancient Greece around the 13th century that the concept of diplomatic immunity was first documented in a systematic manner.

Ancient, civilized states established and implemented the concept of diplomatic immunity. The historical records of the ancient Greeks, Romans, Chinese, Indians, and provide undeniable evidence that these civilizations did, in fact, recognise the concept of diplomatic immunity.

These states recognized the reciprocal benefits of ensuring the safety and protection of foreign diplomats. Consequently, they bestowed immunity upon one another’s ambassadors, irrespective of the gravity of the transgressions committed by the foreign representative.³

The ambassadors were subjected to peril, savagery, and even homicide. The messengers faced significant perils during their journeys to deliver messages to a recipient ruler. They were not only at risk of being temporarily detained, but also faced the possibility of encountering road blockages or being kidnapped by robbers. Additionally, there was a danger of being captured by rulers of the territories they passed through, especially if those rulers were enemies of the intended recipient.⁴ According to the evidence, Diplomatic inviolability was religious. The reprisals were carried out because the conduct was a sacrilege to be avenged, not because the ambassador or his sending State thought it had been violated. In ancient India, the exchange of ad hoc envoys between themselves and from outside India was marked by selection of individualsqualified for the highest office within the state, rank-based classification of diplomatic agents, and religiously sanctioned veneration of the agent. Even if he committed a crime hecould not be executed. However, mutilation might be given to a non-priestly emissary under specific situations. Chatterjee, analyzing the development of international law in India, concludes: (i) Diplomatic agents were considered sacred. (ii) That a diplomatic agent or distinguished foreign guest might bring duty-free money, gifts, jewelry, and other goods to his nation. The State to which he was accredited was required to provide protection for him, and a diplomatic agent enjoyed complete freedom of movement inside the country.⁵

There is a records a case in 456 B.C. in which laymen were sent to the Aequi to complain of a treaty breach and demand reparation, while the Feciales were only used for war or peace.⁶

three to ten distinguished warriors or politicians were granted credentials and instructions and dispatched on ad hoc missions, and the Lex Gabinia authorized the Senate to meet foreign envoys each February. The Lex Julia de Vi made it an offence to infringe an ambassador’s inviolability, which does not appear to have covered residence, servants, or dispatches, and it was the custom to surrender to the aggrieved State any person who had committed such a violation, failure to do so being considered a legitimate cause of war. Later Roman legal writing did not elaborate on these elementary principles because the unity of the expanding Roman empire, the Digest states that these were granted exemption from judicial proceedings.

In his De Foro Legatorum of 1744, Bynkershoek was the first to state that almost all the fragments of the jurisconsults referred not to ambassadors of an independent prince but to deputies the subjects of the Emperor and that in any case these opinions and statements of Roman practice were used to support the principle of ambassador immunity from civil suit under international law. Other writings addressed the legatus who launched an action, the possibility of litigation against the legatus’ property, and a court’s competence in a criminal case, which were later used when ambassadors of sovereign States had the same issues.⁷

3. THE MIDDLE AGES AND THE RENAISSANCE AND CLASSICAL PERIODS

Assaults on diplomatic workers are undoubtedly a recurring occurrence in the realm of international affairs. Throughout history, the limited occurrence of such attacks serves as evidence of the long-standing emphasis on the inviolability of diplomatic agents. There is speculation that a type of diplomatic inviolability may have existed prior to recorded history. The earliest documented evidence of early diplomatic ties and the concept of diplomatic inviolability can be traced back to ancient civilizations. In their comprehensive work documenting The History of Diplomatic Immunity, Frey and Frey present compelling evidence that envoys have consistently had a privileged and secure status dating back to the era of the Ancient Greeks. For instance, when mentioning Herodotus, they recount the severe punishment that Athens and Sparta faced in 491 B.C. due to their act of assassinating the messengers sent by Darius. The Greek envoys’ inviolability was shown by the presence of a staff, which represented the sacredness of their person or acted as a symbol or emblem of their position.⁸

The increasing intricacy of European cultures during the later Middle Ages resulted in a corresponding intensification of diplomatic connections and the necessity to establish diplomatic contacts with increasingly remote nations. The outcome did not involve the replacement of the nuncius, whose existence and responsibilities remained unchanged from the Merovingian era until the fifteenth century. Instead, it led to the emergence of a new official known as the procurator, which gave rise to the English phrases ‘proctor’ and ‘proxy’. The office of the procurator did not emerge during the early Middle Ages, however, its importance was primarily related to legal matters rather than diplomatic affairs. In the latter part of the eleventh century, officials of the papacy were provided with procurations, and it is certain that other authorities were also sent representatives to engage in private agreements. One hundred years later, during the Peace of Constance in 1183, Frederick Barbarossa granted his emissaries the right to negotiate and finalise peace agreements through the use of procuration. The Emperor consented to unconditionally adopt and disseminate the conclusions reached on his behalf.⁹

Many ancient cultures’ diplomatic law was influenced by religion, as evidenced by references in De Legationibus Libri Tres to the importance of religious ceremonies for early diplomats. The Roman College of Fetials, governing diplomatic ties in Roman times, exemplified this influence by creating the jus fetiale and conducting war declarations with considerable ceremony. Even in antiquity, before the advent of current international law, ambassadors enjoyed unique protection and privileges, not by law but by religion, as they were considered holy. While religion played a crucial role in ancient civilizations’ diplomatic law, it would be simplistic to overemphasize its significance, as it mainly explains the inviolability of ambassadors within specific religiously homogenous communities. However, the cloak of religious sanctity was utilized to protect important figures in early diplomatic law. Until the establishment of permanent diplomacy, diplomatic law was primarily based on the inherent necessity of inter-tribal and inter-state relations, with religious sanctity securing envoys’ inviolability. The need for a detailed enumeration of diplomatic privileges and immunities arose with the emergence of the ‘new’ diplomacy and permanent diplomatic relations, as the diplomatic process no longer solely justified such privileges and immunities, which had expanded beyond the traditional inviolability of diplomatic agents.¹⁰

In the early 15th century, Western society did not have enough resources to establish stable nation-states. It has the capability to do so within the context of the Italian city state. The shorter distances internally presented challenges in transport and communication, which in turn affected the collection of taxes and the maintenance of central authority. However, these challenges were manageable and could be resolved effectively. The capital wealth and per capita productivity of the Italian towns may not have exceeded (although it was slightly higher) those of the more affluent regions north of the Alps. However, due to the high population density and limited territory under their control, the Italian city states were able to acquire the resources needed for effective governance, a feat that was previously unattainable for the large and loosely organised northern kingdoms. As a result, not only did each capital experience a stronger attraction due to the regular actions of paid officials, but the entire state was able to quickly and easily mobilise its armies, a feat that is rarely achievable outside of the Alps. Externally, scale had a dual impact. The relatively higher efficiency of the new Italian nations, due in part to their smaller territories, allowed them to pursue their foreign policy goals with more consistency and flexibility compared to other regions in Europe. Simultaneously, the existence of neighbouring military forces in the confined region of northern Italy, possessing equal effectiveness, agility, and predatory tendencies, necessitated constant vigilance in matters of international relations.¹¹