Theories of justification of diplomatic privileges and immunities: problems and ways of solution

Abstract

Problem setting. The question of the theoretical justification for the existence of a significant number of privilegesand immunities enjoyed by a diplomatic agent has never lost its relevance. This is due to the fact that they are virtuallyunpunished and inviolable in the territory of the host country in the performance of their duties. D. B. Levin also paidattention to problematic issues concerning privileges and immunities. Scholars such as J. Brownie and V. M. Repetskynoted that the list of privileges should be complete given the rapid development of foreign relations between the subjectsof international law, while L. G. Falaleeva, V. V. Marakhovsky and P. M. Prybluda raised the question of unfoundednessof some privileges enjoyed by the diplomatic corps. The purpose of this work is to summarize the theoretical achievements concerning the argumentation of diplomaticprivileges and immunities, their use by members of the family of a diplomatic agent. We will also try to formulateproposals for possible innovations and restrictions on the legal status of the family of a member of the diplomatic corps. Analysis of recent research. At the doctrinal level, theories arguing for the use of diplomatic privileges and immunitiesby members of a diplomatic agent’s family are highly controversial. Among the modern works devoted to thesubstantiation of diplomatic privileges and immunities, it should be noted the works of Yu. G. Demin, D. B. Levin, V. M.Repetsky. Article’s main body. The article presents a detailed analysis of international law and the views of scholars and specialistsin this field, discusses current theoretical and applied issues of the theories of justification of diplomatic privilegesand immunities. Conclusions. After analyzing the theories of substantiation of diplomatic privileges and immunities, we concludedthat their presence is an integral part of the performance of their functions by a diplomatic agent of any rank. The purposeof such benefits and privileges is not to provide the diplomat with an additional opportunity to violate the law, but toensure his smooth exercise of his functions.The responsibility imposed on the accrediting country for acts committed in essence by persons who are not civilservants is too great and unjustified. We have also established that personal inviolability is an important aspect of theunimpeded stay of family members in the host country. But we propose to narrow this privilege, namely to establish arule that would provide for the possibility of criminal prosecution of a family member of a diplomatic agent, which entailsa sanction related to imprisonment in accordance with the national legislation of the host country.