Domingo, Nolan Redji Duka Sevilla, Rey Arvin D.

RESEARCH QUESTION Whether or not the 1961 Vienna Convention on Diplomatic Relation is a lawful and valid means of ensuring the efficient performance of the functions of diplomatic missions? The main research problem is about the validity and lawfulness of the 1961 Vienna Convention on Diplomatic Relation when it comes to ensuring that the diplomats are efficiently performing their specific diplomatic missions. COROLLARY ISSUES Whether or not the immunity of diplomats from criminal, civil and administrative prosecution is reasonable? What are the problems faced by the host country in the implementation of the 1961 Vienna Convention on Diplomatic Relation? Whether or not the 1961 Vienna Convention on Diplomatic Relation is efficient in protecting diplomats from legal harassment? Whether or not the 1961 Vienna Convention on Diplomatic Relation is vulnerable to abuse? If so what could be done to prevent future abuses of diplomatic immunity? PROBLEM SITUATION The 1961 Vienna Convention on Diplomatic Relation grants the diplomat immunity from any form of arrest or detention, and civil and administrative jurisdiction.1, 2, 3 Due to the provisions of the Vienna Convention4 it is difficult, if not impossible, for any local authority to acquire jurisdiction over any diplomatic agents. Even though the Vienna Convention does not give diplomats permission to violate the laws of the host country,5 there are some who tend to abuse the privileges given to them and commit grave crimes against the people. A recent example of abuse of diplomatic immunity in our country would be the case regarding the Panamanian diplomat raped a 19 year old girl. Due to diplomatic immunity, the state failed to press charges against the diplomat. The best that the country could do against the perpetrator was to declare him persona non grata.Due to the Vienna Convention, it is extremely difficult for the host country to prosecute
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See also Article 27, paragraph 6 of the 1961 Vienna Convention on Diplomatic Relation. See also Article 29 of the 1961 Vienna Convention on Diplomatic Relation, which states that The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention . See also Article 30 of the 1961 Vienna Convention on Diplomatic Relation. The 1961 Vienna Convention on Diplomatic Relation would now be referred to as the Vienna Convention. See also Article 41, paragraph 1 of the Vienna Convention, without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.
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the accused, which usually results to the diplomat leaving the country without being punished for the acts he has done.6

THEORY OF ANALYSIS 1. Theory of Personal Representation 2. Exterritoriality Theory 3. Theory of Functional Necessity Theory of Personal Representation The theory of Personal Representation is where the sovereign is represented by the diplomats. It could still be seen in current times where the diplomats actions usually represent the state itself. Before the terms diplomat and diplomatist was even coined, rulers often send representatives to neighboring lands. These representative were often treated with respect because in honoring them, one pleased the ruler and avoided offending him.7 One gave the representative freedom of movement and access to ones own ruler, so that the ruler who sent him would hear about it and be satisfied. The representatives were treated as though he was the sovereign himself. In the current times, there are only lingering traces of the Theory of Personal Representation mainly because of the fact most states sovereign are now the people unlike before where the sovereign is the monarch or ruler of the country. The Theory of Personal Representation was also seen in the drafting of the Vienna Constitution. While the Vienna Constitution was being drafted, the UNs International Law Commission reported that, though it was guided by the theory of functional necessity, it was also bearing in mind the representative character of the head of the mission and the mission itself.8 Exterritoriality Theory The Exterritoriality Theory is simply the principle that the offices and homes of the diplomats and even their persons were to be treated at all times as though they were in the territory of the sending state and not the receiving one.9 The theory was considered to be useful principle in the fifteenth century, where permanent resident mission started. Though the concept of Exterritoriality devalued during recent times, its still seen every now and then in the idea that an embassy is part of the country of the sending state.
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Ross, M. S. (1989). Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities. International Law and Policy, 173, pp.173-205. McClanahan, G. V. (1989). Diplomatic Immunity: Principles, Practices, Problems. New York, NY: Palgarave MacMillian pp.28. Wilson, C. E. (19670. Diplomatic Immunity and Privileges. Tucson: University of Arizona Press. pp. 5. McClanahan. pp. 30, full citation on note 7.
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Asylum in an embassy was deduced from the Theory of Exterritoriality. Now, on the basis of customs and treaties, it endures despite the discarding of its original theoretical basis. The United States, especially since the 1950s, in practice accepts the idea of asylum in its own embassies and consulates when the person seeking asylum is in imminent danger of mob violence or, as in the Mindzenty case, claims to be in danger or prosecution on political grounds in a Communist country.10 In earlier decades, the United States attached reservations to two Latin American multilateral conventions on political asylum - in Havanna in 1928 and Montevideo in 1933 - stating that the United States did not recognize a right of asylum.11

Theory of Functional Necessity The Theory of Functional Necessity gives reason behind the privileges and immunities of the diplomat. It states that the privileges are necessary to enable him perform his diplomatic functions. Modern diplomats need to be able to move freely and unhampered as they represent their respective government, report in confidence, observe actual conditions in the receiving country, negotiate agreements, and so on... their private actions need to be immune from local jurisdiction and taxation, for they need to be free at all times to perform official duties.12 Compared to the other two theories, the Theory of Functional Necessity is more prevalent in recent times. One could conclude that the Theory of Functional Necessity is adaptable to change and expansion. Even though this theory is largely a success it still has its shortcomings. It does not cover the real need for diplomatic immunities to be limited by the interest or even the convenience of the receiving country. Due to this theory some diplomats tend to take advantage of their immunities and become nuisances to the society and, in some extreme cases, become a criminal.13 The Theory of Functional Necessity relies heavily on the so called innate goodness of diplomats.
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OConnell, D. P. (1965). International Law. pp.737 & 922. McClanahan. pp. 31-32, full citation on note 7. McClanahan. pp. 32-33, full citation on note 7. Ross, M. S. (1989). Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities. International Law and Policy, 173, pp.173-205.
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Research Framework