DIPLOMATIC IMMUNITY. With a long tradition in the customary practices of nations, diplomatic immunity, originally justified on the basis of theories of sovereign representation and exterritoriality, is now accepted as a functional necessity. Customary rules of diplomatic immunity have been codified authoritatively by the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963), which have been ratified by most nations. At a minimum diplomatic immunity guarantees the inviolability of diplomats by protecting their persons, property, and premises. The scope of coverage and the extent of immunities accorded often involve intricate legal issues.
Modern diplomatic immunity finds strong support in Islamic historical practices and juridical writings. Medieval Muslim jurists argued that the protections afforded to diplomatic envoys or emissaries is necessitated by maslahah (public welfare) and by the commands of the Prophet. The Prophet sent and received several envoys and is reported to have strictly forbidden their molestation.
An envoy, called rasul or safir in Islamic discourse, performed a variety of functions, including negotiating treaties, attending coronations, conciliating differences, or ransoming captives. According to Islamic law, envoys sent to Islamic territory were entitled to safe conduct without a specific grant of aman on presentation of their papers of commission. Their persons and property were immune, and they were exempted from taxation as long as they did not engage in trade. Muslim juridical writings contain elaborate rules regulating the reception of envoys. There is also a wealth of administrative treatises outlining the proper criteria for sending or receiving emissaries.
The Umayyads (661-750) continued the practice of the Prophet in sending and receiving envoys. However, diplomatic intercourse became more significant in the `Abbasid period (749-1258). The Fatimids (909-1171) and Mamluks (1254-1517) increased the practice further by sending envoys to Europe and Central and East Asia.
Largely because of expanding commercial relations, diplomatic representation witnessed a dramatic increase in the sixteenth century. Diplomatic envoys for the most part continued to be sent on a temporary basis with a specific goal in mind. By the end of the sixteenth century, however, several European nations had established resident missions in Ottoman territory. The Ottomans established permanent embassies in Europe in the eighteenth century.
The sixteenth century also witnessed the beginning of the capitulations regimes, which were commercial treaties granting Western nationals certain immunities from the criminal and civil jurisdiction of the host state. By comparison the capitulations granted much broader immunities than those granted by the Vienna Conventions and Muslim nations often considered them humiliating.
Separate treaties, such as the Treaty of Kiiqiik Kaynarca (1774), article 27 betweenRussiaand the Ottoman Empire, and the Treaty of Dardanelles (1809), article 7 betweenBritainand theOttoman Empire, afforded specific protections to diplomats on a reciprocal basis.
By the 1940s the capitulations had been abolished. Nevertheless, by the 1960s most Muslim nations had acceded to the Vienna Conventions. Muslim nations have maintained a good record in observing diplomatic immunities. Breaches such as the hostage crisis inIran, which received a great deal of attention, have been infrequent. Nevertheless, the main issue confronting Muslims at the present time is that Islamic law is not entirely consistent with the Vienna Conventions. For example, according to the majority opinion in Islamic law, diplomats are liable for crimes and torts committed in the host state. Muslim nations, to a large extent, resolved the inconsistency by considering themselves bound by the Vienna Conventions regardless.
[See also Capitulations; Diplomatic Missions; Hostages; International Law; International Relations and Diplomacy.]
BIBLIOGRAPHY
Bassiouni, M. Cherif. “Protection of Diplomats under Islamic Law.” American Journal of International Law 74 (1980): 6o9-633. The only source specifically addressing the subject, but contains certain inaccuracies.
Ghunaimi, Mohammad Talaat al-. The Muslim Conception of International Law and the Western Approach.The Hague, 1968. Contains a useful discussion on the history of diplomatic conduct.
Khadduri, Majid. War and Peace in the Law of Islam.BaltimoreandLondon, 1955. Remains a useful reference source and contains a section on diplomatic immunity.
Mahmassani, Sobhi. “The Principles of International Law in the Light of Islamic Doctrine.” Hague Recueil (Hague Academy of International Law, Recueil des Cours) 117 (1966): 201-328. Besides being a very insightful study, it contains a useful section on diplomatic immunity.
Mottahedeh, Roy P. “Iran’s Foreign Devils.” Foreign Policy 38 (Spring 1980): 19-34. Excellent study of the hostage crisis inIran. Reviews Shi’i rules on diplomatic immunity and the history of capitulations inIran.
Shaybani, Muhammad ibn al-Hasan. The Islamic Law of Nations: Shaybani’s Siyar. Translated by Majid Khadduri.Baltimore, 1966. One of the very few translations of an Islamic legal text on international law.
KHALED ABou EL FADL
