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Who is a diplomat? Vienna Convention (Article 1)

Following a discussion on Twitter, I asked Lahore based lawyer Asad Jamal to comment on what I understood from the Vienna convention. Asad Jamal was kind enough to send this note which I am posting with his permission here. Readers can see that Vienna Convention[s] are pretty clear on the controversy surrounding the alleged spy Raymond Davis’ case. Raza Rumi

The word diplomatic has been used in the definitions in Article 1 of Vienna Convention. The following table captures the definitions of various categories of diplomatic officers.

Category as in 1961 Convention Relevant article

How described/defined

“Diplomatic agent” Article 1 (e) (a) the head of the mission [such as the ambassador], or (b) a member of the diplomatic staff of the mission
“Member of the diplomatic staff of the mission” 1 (d) member of the staff of the mission
“Member of the staff of the mission” 1 (c) members of (a) the diplomatic staff, or (b) of the administrative, and (c) technical staff or of the service staff of the mission
“Members of the administrative and technical staff” 1 (f) members of the staff of the mission employed in the administrative and technical service of the mission.

And this needs explanation:

Article 1 (e)  describes Diplomatic Agent as     (a) “the head of the mission” [such as the ambassador], or (b)  “member of the

diplomatic staff of the mission”

Article 1 (d) describes member of the diplomatic staff of the mission as    “member of the staff of the mission”

Article 1 (c) describes     Member of the staff of the mission as “members of (a) the diplomatic staff, or (b) of the administrative, and (c) technical staff or of the service staff of the mission”

Article 1(f) describes Members of the administrative and technical staff as “members of the staff of the mission employed in the administrative and technical service of the mission”.

So while the Convention differentiates between diplomatic staff and technical staff in Article 1(c), if all the definitions read together in reverse gear it actually also puts them in the same box for the purpose of immunity.

Read in reverse gear and you will see that    a member of the administrative and technical staff may also be  considered as diplomatic agent who clearly enjoys immunity.  Things are made crystal clear if one reads Article 37.

I know this requires some effort but it is not impossible to understand. And it is for this interpretation that you will understand Article 37, which entitles a member of the administrative, and technical staff immunity from criminal jurisdiction

This is what makes Raymond’s case for immunity strong. And that is why FO’s categorisation of members of the administrative and technical staff as “non-diplomatic staff” unreliable, and even illegal. This view is based on the “fact” that the US Mission says they notified RAD as a ‘member of the administrative and technical staff’ but for FO requirement to declare him as ‘non-diplomatic’ has caused the confusion; because he is not ‘hardcore diplomat’ such as the ambassador, or perhaps political officers).

My reading of the law is that it does not matter whether he possesses a “diplomatic passport” or not, it also seems irrelevant whether his passport bears a visa as that would be for a diplomat. The determining factor is whether he was notified to FO in one of the categories entitled to immunity from criminal jurisdiction or not. If he was so notified as member of technical staff at the mission, then no matter what may be written/printed on his passport, or where ever he was posted at the Mission or Consulate, RAD is entitled to immunity even if he has been spying around.

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