A CRITIQUE OF DIPLOMATIC IMMUNITY IN INTERNATIONAL LAW
ABSTRACT Diplomatic immunity is one of the oldest elements of foreign relations, dating back as far as ancient Greece and Rome. Today it is a principle that has been codified into the Vienna Convention on Diplomatic Relations regulating past customs and practices of Diplomats. This convention has been influenced by three theories during different eras namely: personal representation, Exterritorility and functional necessity. The Vienna convention on Diplomatic relations further provides certain immunities to different levels of diplomatic officials, their staff and families. In view of this, the research critically analysed deterrent measurse provided by the Vienna convention to assess the inadequaecies occationed by these measures to victims of diplomatic misconduct. the problem of the research is the continued abuse of these immunities by the Diplomats and these abuses could have direct consequences both for Diplomats, sending states, receiving state and the victim. Although the Vienna Convention on diplomatic relation provides remedies against diplomats, staff and families who abuse their position. But, that is not enough to cut abuses? Therefore, since there are many literatures on the above subject matter, the research methodology adopted was basically doctrinal. That is, use of standard books on the subject, journals, articles, internet, and relevant laws are the sources of information relied upon. The findings of the writer are (a) The deterrent measures provided by the Vienna convention were outdated and therefore ineffective. As a result, diplomats continue to abuse their immunity and occasioned grave injustice to the victims. (b) The convention did not provide means of settlement of individuals who were injured as a result of diplomatic misconduct. (c) Commissions of civil wrong by diplomatic official were not serious as criminal offences. In this regard, the writer finally concluded by recommending that (a) Criminal Immunity of a diplomat should be removed completely, so that where a diplomat commit any of the following crimes should be punished in the receiving state where such crime was committed. for example, murder, rape, smuggling of weapons, explosives, human beings, hard drugs and other heinous crimes. (b) Expansion of the International Court of Justice (ICJ) Jurisdiction on Diplomatic Criminal offences committed by diplomat, staff and their families. (c) Immunity from civil wrong be accorded to diplomats.
CHAPTER ONE GENERAL INTRODUCTION
1.1 Background to the Study
The rule of international law governing diplomatic relations were the product of long-established state practice reflected in the legislative provisions and judicial decisions of national law. The law has now been codified to a considerable extent in the Vienna Convention on Diplomatic Relations. Parts of the Convention are based on existing practice and other parts constitute a progressive development of the law. However, as ratifications mount up even the latter portions provide the best evidence of generally acceptable rules. The convention presently has at least 150 parties. The importance of the principles of law is embodied in the case concerning United States v Diplomatic and Consular Staff in Tehran1 and judgment of 24th May 19802. In its judgment on the merits, the court observed that „the obligations of the Iranian Government here in question are not merely contractual –but also obligations under general international law3. In that case, the government of Iran was held responsible for failing to prevent and for subsequently approving the actions of military in invading the United States Mission in Tehran and holding the diplomatic and consular personnel as „hostages‟.
For English courts, the Diplomatic Immunity Act of 1708 was declaratory of the common law. The Act of 1708 has been repealed and replaced by the Diplomatic Principles Act of 19644 which sets out in a schedule those provisions of the convention which are incorporated into the law of the United Kingdom. The same Act replaces Section 1(1) of the Diplomatic Immunities (Commonwealth countries and Republic of Ireland) Act of 1952, which provides for immunity from suit. The Vienna Convention
1International Court of Justice Reports (1979), p. 19 2 Ibid (1979), pp. 30-43 3 Ibid 4 Empson v. Smith (1960),1 QB 426
does not affect rules of customary land governing questions not expressly regulated by its provisions5 and, of course, states are free to vary the position by treaty and tacit agreements based upon subsequent conduct. Diplomacy comprises any means by which states establish or maintain mutual relations, communicate with each other, or carryout political or legal transaction, in each case through their authorized agents. Diplomacy in this sense may exist between states in a state of war or armed conflict with each other, but the concept relates to communication, whether with friendly or hostile purpose, rather than the material forms of economic and military conflict. Normally, diplomacy involves the exchange of permanent diplomatic missions and similar permanent or at least regular representation is necessary for states to give substance to their membership of the United Nations and major inter-governmental organizations.
International law, along with diplomatic immunity is not impose on state but is generally accepted through consensus and reciprocity, on the basis that peaceful compromise must override violent confrontation6.
Diplomats ensure that communications between states is made possible. As a consequence they are granted certain immunities to facilitate these function within the state to which they are accredited7.
Diplomatic immunity means that foreign diplomats are not subject to the jurisdiction of local courts in respect of their officials and in most instances, their personal acts8.
5 See the Philippines Embassy Case, ILR 65, 146 at 161-2, 186. 6 Hoffman, (2003),“Reconstructing Diplomacy”5 British Journal of Politics and International Relations p. 533 7 Shearer Starke’s, (1994), international law led p. 384 8 Hays, (2000), “What is Diplomatic Immunity” https://ift.tt/2tzajzJ is Diplomatic Immunity.htm[Accessed on 20 may 2005].
It is against this absolute immunity, that diplomatic immunity is critically examined. It is intended to consider whether diplomats, their staff and families need absolute criminal immunity.
Diplomatic immunity as it is understood today is a function of historic customs which have developed and have been to an extent codified. Diplomatic immunity is moulded around three major theories that originate in the mid 16th century: personal representation, exteritoriality and functional necessity.9 The earliest theory, personal representation dictated that diplomat‟s immunity arose because the diplomat was an extension of the ruler sending him thereby granting him immunity. Exterritoriality dominated in the 18th century, which meant that the property and the person of the diplomat should be treated as though they existed on the territory of the sending State. Functional necessity limits immunities to those functions performed by the diplomat in his official capacity, and is today embodied in the introduction of the Vienna Conventions of 1961 and the UN International Immunities. There are important reasons for diplomatic immunity but these reasons should be balanced against need to prevent crime and the need to project the right of the victims. Justice must be seen to be served by all concerned. 1.2 Statement of the Problem Diplomatic immunity means that foreign diplomats are not subject to the jurisdiction of local courts in respect of their official offices and, in most instances, their personal acts. There is continued increase in the numbers of diplomats in foreign countries.
The demand of diplomatic system has led to the development of several conventions regarding immunities, and the behavior of diplomats, to some extent, some countries like
9 McClanahan, (1989) Diplomatic Immunity: Principles, Practices, Problems 27-34 and Ogdon, (1936) Juridical Basis of Diplomatic Immunity: A Study in the Origin, Growth and purpose of the Law p. 63-194
the United States of America and the United Kingdom have considered changes in Foreign Policy and have re-examined and immunities given to foreign diplomats in their countries, but yet diplomats continue to abuse their rights. The major problem is the continued abuse of these immunities and by the diplomats and these abuses could have direct consequences both for diplomats, sending States, receiving State and the victim.
For instance, in 2011, a Kuwait attaché in USA was charged with rape of his house keeper. Owing to his diplomatic immunity he was released.10 Also, in 2002, British diplomats abroad escaped criminal prosecution on 21 occasions, as they were effectively cloaked by immunity. Can this be justifiable to the functions of a diplomat?
Also, a 19 year old son of the third attaché to the Ghanian delegation committed rape, sodomy, assault and other crimes in New York City,11 on 3 different individuals. The police after identifying him as the son of the Ghanian diplomat, he was released and all charges dropped owing to his diplomatic immunity.12 The victim has this to say “A man raped me and got away with it, because he is not a citizen, and because he is a relative of a diplomat. He claimed he has the right to rape me and I, as an American citizen, am not given the right to get justice.”13 How can the victim here seek redress against the criminal actions of a diplomat?
Immunity carries with it an obligation: the duty to respect the laws and regulations of the receiving State. If this regard is a requirement, then surely the prosecution of the offending diplomat in the receiving State should be a reasonable and necessary means of
10 Washington times.com/news/2012/Dec/13/workers abuses by immune diplomat? page 11 11 Ashman C and Trescott P (1987) Diplomatic Crime: Drugs, Killings, Theft, Rapes, Slavery and other Outrageous Crimes, Acropolis Books Ltd: Washington D.C. p. 22 12 Ibid p. 24 13 Farahmand A M (1989-1990) “Diplomatic Immunity and Diplomatic Crime: A Legislative Proposal to Curtail Abuse” 16 Journal of Legislation. Boston, p. 99
ensuring such respect. If absolute criminal immunity continues, diplomatic relations between countries could deteriorate, if not collapse, thereby defeating the purpose of diplomatic immunity which enables a diplomat carry out his functions smoothly without hindrance in the receiving State. 1.3 Aim and Objectives This research aim at examining critically, the limitations of the various laws guiding the concept of diplomatic immunity with the to achieve the following objectives:-
1. To appraise the deterrent measures provided by the Vienna convention.
2. To assess the extent of diplomatic immunity abuses by diplomats, staff and their families.
3. To point out possible measures to curb diplomatic immunity abuses and proffer solutions that would ensure justice is being given to victims of diplomatic criminal acts.
1.4 Significance of the Research This research is of immense significance and contributes to knowledge because: the area in issue has raised criticism from concerned victims of diplomatic immunity abuses and the international community. It would therefore serve as useful information to academicians, policy makers, students and subsequent researchers in the field. 1.5 Scope of the Research This research covers the following:
1. The concept of Diplomatic Immunity.
2. This research also covers the Vienna Convention on Diplomatic Relations of 1961.
1.6 Research Methodology The research methodology adopted for this work is doctrinal research method; it is a visionary, conceptual research in nature. It shall be conducted in the library using standard Books on the subject, relevant laws, articles, journals and the use of internet. 1.7 Literature Review Although there is a large volume of literary works on international law largely by foreign scholars, Diplomatic immunity has not enjoyed robust academic attention by academic writers. However some few works written in the subject are reviewed here.
Whilst Starke, J. G.,14 Introduction to international Law, tried to analyze diplomatic immunities by discussing classification of diplomatic envoys, appointment and reception of diplomatic envoys, rights, immunity of diplomats and termination of diplomatic mission, he did not discuss inviolability of diplomatic bag and courier, instances of violations of immunities as regards to diplomatic bag and diplomatic courier; members of the family of a diplomat‟s immunity, its abuses were also not discussed.
Shaw, M. N15, on International Law, the field of diplomatic immunities is one of the most accepted and uncontroversial of international law topics, as it is in the interest of all states ultimately to preserve an even tenor of diplomatic relations, although not all states act in accordance with this, here the writer did not discuss jurisdiction of the sending state as relates to power of prosecuting erring diplomat.
Gardiner, R. K., on International Law16, diplomatic relations constitutes a significant part of the means and context within which international law takes effect. Even lawyers dealing with issues of status and immunities solely within a national legal system will
14 Starke, J.G., (1977) Introduction to International Law, 8th ed. Butterworth. pp. 440-448. 15 Shaw, M.N., (2003) International Law, 5th ed. Cambridge University Press, London. pp. 676-693 16 Gardiner, R.K.., (2003), International Law, Pearson Longman, London. pp. 339-387.
need to acquaint themselves with this fuller context. For example, the process by which diplomatic status is acquired is relevant to identifying the moment at which diplomatic immunity starts, or to the position of a diplomat who is travelling through a state which is neither his or her „sending‟ (home) state nor „receiving‟ (host) state. Likewise, the start of applicability of the Vienna Convention may prove necessary background when preparing a planning application for embassy premises, or when deploying technical staff from abroad to kit out such a building when nearing completion, in this book the writer did not discuss theories of Diplomatic Immunity as it is an important segment of Diplomatic Immunity,
Harris, D. J., on Cases and Materials on International Law17, it is elementary law that diplomatic immunity is not immunity from legal liability but immunity from suit. The Diplomatic Privileges Act, 1964, in his view clearly applicable to suits brought after the date on which that statute came into force in respect of acts done before that date Harris did not provide detailed explanation regarding Diplomatic Agents, Missions and consuls.
Akehurst, M.A., on Modern International Law18, diplomatic relations are established by mutual consent between the two states concerned. However, they may be broken off unilaterally (often as a mark of disapproval of an illegal or unfriendly act by the other state). There is thus a double basis for diplomatic immunities; they are needed for the efficient performance of diplomatic functions, and they are also given because diplomats are representatives of states. Although, accepted as the basis of diplomatic immunities in previous centuries, is nowadays rather doubtful. However, the writer did not discuss deterrent measures as means of curbing diplomatic immunity abuses provided by the Vienna Convention.
17 Harris, D.J., (1998) Cases and Materials on International Law, 5th ed. Sweet & Maxwell, London p. 264-283. 18 Akehurst, M., (1987) Modern Introduction to International Law, Allen and Unwin, London p. 113-122.
So also Nigerian authors like Okeke, C.N., on Theory and Practice of International Law19. Throughout history, diplomats and other envoys have needed immunities for the effective performance of their functions in the territory of the receiving state. However, it must be made clear that the principle of diplomatic immunity is accorded not for the benefit of the individual agent in question, but for the benefit of the state in whose service he is, in order that he may fulfill his diplomatic duties with the necessary independence and freedom, Okeke did not discuss any abuse of a diplomatic immunity. Ladan, M. T., in his book, Materials and Cases on Public International Law20 discussed diplomatic immunity. His discussion however is only in a summary form, and he did not explain the various instances of violation of Diplomatic Immunity in all its ramifications. He touched on Vienna Convention on Diplomatic Relations without providing the enabling articles he referred to.
Umozurike, U. O., in his book Introduction to International Law21discussed and analyzed the Diplomatic and Consular Immunities, except that he did not dwell on the Vienna Convention on Diplomatic Relation of 1961, the genesis of the convention, convention on consular relation 1964 etc.
Hingorani, R. C., in his book Modern International Law22 discussed and analyzed the various immunities accorded to diplomat. Not only that, he also, explained the various instances of violation of the laws of the receiving state by the diplomats of the sending states but failed to discuss other important issues regarding diplomatic immunities for example, the United Nations International Immunity, special mission, termination of missions etc.
19Okeke, C. N., (1986) The Theory and Practice of International Law in Nigeria, Fourth Dimension Publishers, Ibadan. p 51-53. 20Ladan, M. T., Op.cit p. 39-41. 21Umozurike, U. O., (1993) Introduction to International Law, Spectrum Publishers, Ibadan pp.92-102. 22Hingorani, R. C., (1993) Modern International Law, Oxford & IBH Publishers, New Delhi p. 184-205.
Higgins, R.,23 in her contributions, in the journal on the abuse of Diplomatic Immunities; did not discuss appointment and categories of heads of the missions.
Mitchells, R.,24 in her article Rethinking Diplomatic Immunities; The article discussed the history of Diplomatic Immunities, its abuses but failed to look at the relevant sections of the Vienna Convention that discussed Diplomatic Immunities, also failed to discuss Diplomatic Agents, privileges and immunities etc. From the above analysis of literatures reviewed, a conclusion can be drawn: Firstly, none of the literature was clearly written on Diplomatic Immunities under International Law. It is evidently seen that a wide gap exists which must be filled. Also, recent changes have occurred which needed to be exposed to the academics, students and the entire International communities with the hope of bringing out the developmental aspect of these changes. For example, the abuses experienced and the possible solutions to curb such abuses. None of these literatures above contained in one single document mentioned as this research. 1.8 Organizational Structure This research is divided into five chapters. Chapter one is the general background to the research. The chapter provides Statement of the Problem, Aims and Objectives to be achieved at the end of the research, Significance of the Research, the scope of the research indicating area of limitation of writing the research, the research methodology to be adopted, literature review and finally organizational layout.
23Higgins, R., (1985) Journal of International Law, Westlaw Publishers, UK p. 65-67. 24Mitchells R., (1989)Rethinking Diplomatic Immunities, American University International Law Review 4, No. 1p. 42-50
Chapter two focuses on growth and development of diplomatic immunity. This includes the definition of terms and conceptual clarifications, meaning and nature of diplomatic immunity, personal representation, exterritoriality, functional necessity. Chapter three of the research provides an overview of Vienna convention. The first thing to be examined is the Vienna Convention on Diplomatic Relations 1961 which was the legal frame that diplomatic immunity derives its legal status. Thereafter, the meaning and nature of international law, highlight of the United Nations international immunity was made. Concepts like classification, appointment, reception and termination, staff family; diplomatic mission, special mission and termination of missions were equally examined. And a critic of deterrent measures provided by the Vienna convention was made such as persona non grata, waiver of immunity, jurisdiction of the sending state, reciprocity, breaking diplomatic ties and settlement of dispute. Chapter four analysis the abuses of diplomatic immunity. In this regard, several abuses of diplomatic immunity will be examined and the response to such abuses. Personal inviolability of a diplomat, immunity from jurisdiction, Inviolability of diplomats residence and property, Inviolability of missions, inviolability of archives and documents, freedom of communications and the inviolability of official correspondence, diplomatic bags and couriers, diplomatic agents privileges and immunities, personal inviolability, there comes the members of the family and staff immunities: members of family, mission staff.
Lastly, chapter five is a Summary of the whole work including findings and recommendations.
CHAPTER TWO DEVELOPMENT OF DIPLOMATIC IMMUNITY IN INTERNATIONAL PRACTICE
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