Doctrine of diplomatic immunity
The doctrine of diplomatic Immunity is one of the oldest notions of foreign relations and the fundamental rule of diplomatic law. This rule was mentioned under article 29 of the Vienna Convention in 1961. The diplomatic agent who goes to the receiving state to serve as a medium of communication between his country and the receiving state must be given immunity in order to carry out their duties effectively. Therefore it seems necessary for the diplomatic agent to enjoy the immunity from the criminal and civil jurisdiction in the receiving state. In general there are various types of persons in the diplomatic mission some of whom should be granted a higher protection than others. The immunity for diplomats was established before by the rule of customary international law. However, the immunity from jurisdiction in modern practice is regulated by the ‘Vienna Convention on Diplomatic Relation, 1961'. It is important to emphasize that the rule of customary international law will continue to apply if any matter is not regulated by the Vienna Convention on diplomatic relation 1961.
This paper examines and analyzes the basis of diplomatic immunities and the argument which has arisen about this basis between different scholars in diplomatic law in the diplomatic law.
Furthermore, it discusses in detail the immunities from the criminal jurisdiction in Article 31 (1) and the immunity from civil jurisdiction. Additionally, the three exceptions in Article 31 (1) (a, b, c) in the Vienna Convention are still unclear and shall be assessed in this paper.
Theoretical Basis Of Diplomatic Immunities
There are a variety of different theories which have been used to justify the legal basis of immunities that the diplomatic agent can benefit from. The three following theories; exterritorial theory, representative character theory, and functional necessity theory are to be discussed in this essay.
It could be said that the doctrine of “exterritoriality ' is the first and the oldest theory which is based on the concept that the premises of the mission is not the territory of the receiving but it is part of the sending state. In order to clarify this point, the diplomatic office and residential premises are treated as being the territory of the sending state which might be considered as a sort of extension of the sending state.
This theory has received criticism from the writers of diplomatic law and judicial decisions. First of all, it might be said that the extraterritoriality theory cannot provide good reason for the basis of the immunities for both premises of the mission and the diplomatic agent due to the difficulty of accepting this exemption in practice. Additionally, the ambassador may be involved in business in his own capacity or he might own property in the receiving state. In this situation, he is required to follow the local legislation of the receiving state such as paying rates. However, it could be argued that this theory has some practical values because the envoy should be treated as if he is outside the receiving state.
With reference to the above argument, it may be generally said that this theory is out of date and is no longer used in the international law field.
Representative Character Theory
The second theory is the representative character theory. Under this traditional theory, the receiving state should deal with the envoy who represents the sovereign state as if it deals with sovereign state. Moreover, any attachment to the dignity of the ambassador is considered as an attachment of the personal dignity of the sovereign. Therefore, the receiving state must treat the ambassador similar to how it treats the presidential representative so they are not subjected to jurisdiction of the receiving state. As a matter of fact, this theory was supported be the decision of the supreme court of the United States of America in the Schooner Exchange v MacFaddom case.
However, modern diplomatic practice does not accept this theoretical approach for many reasons. It is not possible to include all the reasons due to the word limit of this paper, so it focuses on one criticism which is that the representative theory extends immunity of the official act but does not cover the basis immunity of the private act.
It could be said that this theory is not supported by many writers and the decisions of different municipal courts have disregarded this theory.
Functional Necessity Theory
The functional necessity theory, as presented by scholars is currently becoming more popular. In diplomatic law, the modern perspective tends to grant the immunities and privileges on the basis of the “functional necessity”. According to this theory, the diplomatic mission grants these immunities because diplomats cannot exercise their duties perfectly unless they enjoy such privileges. It may be generally said that if the diplomat is liable for any legal action, political interference or even personal acts which may put the diplomat in a risky situation depending on the good will of the receiving state to which they are accredited . Furthermore, it seems necessary to the diplomatic agent to be granted immunity to make him feel more safe and comfortable without any hamper in the exercise of their duties.
It could be said that functional theory is more practical and expected in diplomatic law.
Brief Evaluation Of The Three Theories
The immunities and privileges are very important in the interest of the international relation between the nations as stated by Professor Guggenheim. From the legal point of view, the implications of personal immunity in relation to the three theories shows that the exterritorial theory is disregarded and out dated and the representative theory has not been supported by many writers in current years. However, it might be said that the functional necessity theory is more practical and is highly supported by modern diplomatic practice.
Immunity From jurisdiction
The diplomatic agent can benefit from immunity from criminal and civil jurisdiction in the receiving state under the Article (31) of the Vienna Convention. It appears that there are two types of immunity from the criminal jurisdiction and the civil jurisdiction. This section will discuss this immunity in addition to discussing the differences between them in detail.
Immunity From Criminal Jurisdiction
To begin with, the diplomatic agent can benefit from immunity from criminal jurisdiction in the receiving state. The immunity from criminal jurisdiction is absolute and the local criminal courts in the receiving state cannot try or punish the diplomat under any circumstances. The importance of immunity from criminal jurisdiction was emphasized by the decision of the International court of Justice in the Hostage case. This case appears to be fully justified by the requirement of his functions and to make him more comfortable when he works in the receiving state. The immunity of the diplomat starts at the moment the diplomat enters the receiving state and gives notification to the Minister for Foreign Affairs, and it ends when he leaves the country or his period has expired (Article 39 (1, 2). However this immunity from the criminal jurisdiction does not mean that he is completely immune from any crimes he commits. It only means he will not be punished in the receiving state but he may be punished in the court of his home country under Article 31 (4). In spite of the fact that the receiving state cannot sue and use the jurisdiction over the diplomatic, it can take other ways such as; asking the sending state to waive the immunity of that diplomat and the waiver must be expressed ( Article 32 (1). Additionally, the receiving state can request to recall him back to the sending state or declare this diplomat as persona non grata.
The question may arise whether this immunity from the criminal jurisdiction covers the diplomatic agent only or it also extend to cover members of his family, administrative and technical staff. It seems difficult to explain this point in more detail but it may be helpful to provide a short summary on this point. It is not clear under article 37 (1) the meaning of the “family” of the diplomatic agent. It could be said that the spouse of the diplomat and the children below age of majority are member s of the family and the immunity should be extended to them. Furthermore, the administrative, the technical staff and their families have immunity under Article 37 (2). However, there is limitation under Article 37 (3).
The following table shows a brief summary on criminal immunity for the mission in the receiving state.
Moreover, some of the scholars in diplomatic law divide the crimes which may be committed by the diplomatic agent into two categories; political offense and the ordinary crime. First of all, a political offence against the receiving states for example, a conspiracy against the Head of the receiving state, collecting of intelligence and the information the office secret of the state. As matter of fact, some countries in these types of the crimes may put restraint on the diplomatic agent, dismiss and expulse him but these sanctions have been limited in the practice.
However, it is possible that some countries may justify this act on the basis of the principle of self-defense. At this point, the question of what the meaning of the self defense is and whether there is any limit in applying it remains unanswered. On the one hand, it could be said that the countries which may use this doctrine want to protect their securities. On the other hand, it might be argued that, the receiving state may misuse this principle and it may extent to explicate this principle. In addition, it appears that giving the diplomatic agent immunity from criminal jurisdiction is necessary in order to do his tasks effectively otherwise the immunity of this person might hardly be guaranteed. This view is supported by the American Institute of International Law and Harvard Law School in the drafts of international conventions.
The second category is related to ordinary crimes. For instance, the most common crimes statistically taken from the United States and Western Europe are the violation of road traffic offences and drug abuse. It appears in some of these countries, such as Great Britain, these crimes are dealt with by informing the heads of missions of any laws broken by any member of the mission. However, for serious crime a waiver of immunity may be requested.
A question which may arise from time to time is whether the procedures from the receiving state against the diplomatic agent before taking him to the court is considered as contravention to Article 29 in the Vienna Convention. An example could be the diplomatic agent commits an ordinary crime and the police conduct investigations related to this crime and ask the diplomat some questions. There is much academic discussion about this question but it has been argued that even those small actions may be considered as contravention to Article 29.
To sum up, it is clear that this immunity from criminal jurisdiction is absolute for the diplomatic agent and there is no exception at all. Hence, the receiving state must respect this principle and should draw very narrow interpretation of this doctrine unless there is an expressed waive from the sending state. However, in practice the sending state is unlikely to waiver immunity in criminal cases.
Effects Of Immunity On Insurance
Another relevant point regarding immunity from jurisdiction is that of the impact of immunity. In the case of Dickinson v Del Solar in the United Kingdom, it was held that the insurer could not take the benefit of the entitlement of a diplomatic customer to immunity on the basis that the waiver of the diplomatic immunity leads to a breach of the insurance contract or on the grounds that the diplomatic agent has no legal liability.It is clear that the situation in the United Kingdom is more difficult if the diplomat denies and refuses a waiver of his immunity. In this case, the claimant will face difficulties in receiving damages.
In the United States, it is required by the diplomatic mission, their members and families to have insurance before driving their cars. The crucial point is that if there are any civil claims, it will not be against the diplomat but against the insurance company directly which makes it easier for the claimant to receive damages.
Motoring Offences And Claims
In recent years there have been many offences involving the diplomat driving under the influence of alcohol. This causes chronic problems and also other offenses such as illegal parking. It is worth mentioning that the Netherlands rejected to ratify the Vienna Convention until 1984. The reason is that it wanted to assume jurisdiction over claims of damages caused by motor traffic accidents unless the insurance company is liable for the damages directly. Generally speaking, most states are implementing the insurance solution to cope with this problem and most plaintiffs obtain solutions easily regarding motor accidents.
Immunities From Civil Jurisdiction
The immunities from civil jurisdiction came after the establishment of the immunities from criminal jurisdiction. According to Article 31 (1) in the Vienna Convention, after mentioning the immunities from the criminal jurisdiction, it mentions the immunities from civil jurisdiction with three important exceptions.
These three exceptions did not exist in common law countries before but were in existence in some civil law countries. It seems important to assess these three exceptions in more detail.
Exception For Private Immovable Property
The first exception in Article 31.1 (a) is that “ a real action relating to private immovable property situated in the territory of the receiving , unless he holds it on behalf of the sending state for the purpose of the mission”.
This exception was accepted before by some authors such as Grotius but in recent years there has been some criticism by many countries.There is an argument in various legislations and court decisions in different countries about this exception. It appears that this exception is unclear and there are different views regarding it. First, there had been an opinion that the local courts had jurisdiction when this case related to private immovable property. There were two reasons for this view; first on the grounds of immunity of the sovereign. The second reason is on the basis that the best place to settle any dispute arising in connection to property was the place of its location. However there was exception to this view suggested by Bynkershock in the favor of the real property to the ambassador when he uses the real property for embassy aims.
The question may arise what the meaning of the “real action” is. It could be said that there are different meanings for the real action in different countries. However, it may be helpful to focus on the common law countries such as the UK to define this term. Indeed under the English Law the distinction between the real and the personal actions does not carry the same meaning as in Article 31.1. (a). The real action is probably defined as the court of Appeal concluded in the case” in which the owner ship or possession as distinct from mere use “
Another ambiguous point is whether the words ‘unless he holds it on behalf of the sending state for the purpose of the mission' apply to the doctrine of the private residence of a diplomat. It can be said that if the aim of this exception is to allow the local courts the trial of action affecting real property which seems difficult to try the diplomatic agent in their country. In this case it could be argued that the construed of the exception should be very narrow in order to bring any action to settle on the legal claim of the owner of a house in which the diplomat resides.
Exception For Involvement In Succession
The second exception is of “an action relation to succession in which the diplomatic agent is involved as executer administrator, heir or legatee as a private person and not behalf of the sending state” under Article 31.1(b).
As matter of fact, the exception is quite common and is considered as a new exception. It is generally considered that the diplomat may be involved in succession matters in certain situations. For example, in the case of national citizen of diplomatic agent's own state dies leaving money to the home state, the diplomat can receive the money in his office capacity. Moreover, in the case the diplomat become involved in the division of the estate.
Exception For Private , Professional Or Commercial Activity
The third exception under Article 31.1(c) is that “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions”. It can be said that under Article (42) the diplomatic agents cannot engage in any commercial activities in the receiving for personal profit. Nevertheless, in practice the last exception is very important and it is still needed. It is necessary to highlight this exception as it was not effective and it remained narrow in terms. For instance under the English law, there was no place for this exception and this point was illustrated by decision in the case of Magdalena Steam Navigation Company v Martin. However, in current years many authors give a broader explanation for this exception.
The question is whether the family members of the diplomatic agents are subject to this exception especially they are not subject to the prohibition in Article (42). From the legal point of view, it appears that this exception will also apply to the family members of the diplomatic agents. It is worth mentioning that this exception is more beneficial for the claimants or creditors in the receiving state to receive their money rather than using persona non grate.
Another relevant point is the meaning of ‘any professional or commercial activities'. In general ordinary activities such as the buying of goods or some services are not considered as commercial activities. This point was supported by the decision of the Court of Appeal in the USA in the case Tabion V Mufti . It was held that the contract related to domestic service between a Philippine national and a diplomatic agent was not a commercial activity. Nonetheless, if the diplomatic member or his family works in the receiving state, it could be argued that they are within the exception. Therefore the claimants can sue them in the receiving state.
It remains unclear whether the creditors can sue the diplomat in the receiving state in the case of bankruptcy for the diplomatic within the exception. It seems difficult to address the above question but it could be argued that the bankruptcy proceedings cannot be established against them in respect to the immunities of the diplomat.
The last point is whether some acts were done with the diplomat official functions or outside his functions. It appears complicated to draw a determined line between them. With regard to Article 3 which states the general rules for diplomatic functions, any unclear actions will be considered as the functions of the diplomatic mission. This approach was supported by many judicial decisions in many countries such as the UK. This approach was illustrated by the decision of the English High Court in the case of Propend Finance Property v Sing and the Commissioner of the Australian Federal Police. It was held that the Diplomatic staff of the Australian carrying out police cooperation activities part from his official function.
Legal Effects Of Establishment Or Lifting Of Immunity
Generally, there is a difference between the exemption from liability and exemption from immunity from jurisdiction. In the case of exemption from liability there will not be enforcement whereas in the exemption from Jurisdiction the claim might be enforced. This could happen in many situations for example when the immunity is waived from the sending state in respect to judgment and execution or when the immunity has been ceased.
Another relevant point is that the immunity from jurisdiction in the case the government of the sending state waives the immunity does not mean it waives from any measures of execution. Therefore, any decision from the courts cannot be enforced against the diplomatic agent unless there is a separate waiver. This is the main point emphasized in Article 31 (3) in the Vienna Convention.
Furthermore, it seems necessary to mention that if the diplomatic agent has immunity from jurisdiction in the receiving state, it does not exempt him from the jurisdiction of the sending state.
However, there is a question arising regarding this point which is whether the sending state will exercise the jurisdiction against the diplomatic agent. There are many problems regarding this question, as in Article 31.4 which does not make it compulsory for the sending state to exercise the jurisdiction. Additionally, some cases may be considered as crimes in the receiving state; for example, the drinking alcohol whereas in the sending state this is not considered to be a crime. The question is what is the solution to tackling this issue? It is suggested that this issue may be settled by the consultation between the receiving and the sending states. In the case relating to civil jurisdiction, it could be said that there are three exceptions (as mentioned previously) and also in the practice the sending state may waiver the immunity from the diplomatic agent.
With reference to the above discussion concerning the immunity from civil jurisdiction for the diplomatic agent, it is not absolute and there are three exceptions for this immunity and these exceptions will exist if he is outside his official functions. It is worth noting that there has been a school of thought against the view of exceptions from the civil immunity and the Havana Convention 1928 had adopted this view.
There is much academic discussion about the issue of the limited immunity of the diplomatic agent because in recent years there are many cases of diplomats abusing their immunity. Especially after the famous case in the UK in 1984 when a police woman was killed in London by shots fired from the windows of the Libyan people's Bureau. Moreover, there are other examples of abusing diplomatic immunity in the receiving state such as traffic offences.
Another point is whether diplomatic immunity should prevail even when there has been a violation of human rights. It could be said that this issue is very wide but it seems important to mention it briefly. It might be said that the protection of human rights is more important than the immunity of the diplomatic agent. However, it can be argued that diplomatic immunity is more important even if the diplomat violates human rights because they will be liable for this in the sending state.
Indeed it is difficult to cover the issue about abusing diplomatic immunity and the clash with human rights due to word constraints and it is not a core point to this assignment question; however, it is worth mentioning these two issues.
In short, there have been many suggestions by writers addressing this issue and creating a balance between the diplomatic immunity and reducing the abuse of immunity.
The first suggestion is creating new restrictions of the Vienna Convention or amending some provisions in this Convention.
However, it is argued that these two proposals are difficult to apply in practice because they may lead to reducing the immunity for the diplomatic agent.
Another proposal which may be applied in some situations is providing insurance for the vehicles in the receiving state which is applied in The USA. It may be helpful in practice especially in dealing with some cases without any violation of the diplomatic immunity.
This paper has attempted to demonstrate the basis of personal immunity and has examined the three theories. Furthermore, it has discussed immunity from the criminal jurisdiction for the diplomatic agent in the receiving state. It is clear that the immunity from criminal jurisdiction is absolute and there is no exception. This full immunity from criminal jurisdiction is necessary for the diplomatic agent in order to do his tasks effectively in the receiving state.
However, immunity from civil jurisdiction for the diplomatic agent is not absolute and there are three exceptions to this immunity, and these exceptions will exist only if he is outside his official functions. These three exceptions are very important in practice and will not affect the functions of the diplomatic agents or his dignity. However, the receiving state must draw narrow interpretation regarding these exceptions because the original rule is that the diplomatic agent must enjoy the immunity from the civil and criminal jurisdiction.
Another relevant point is that diplomatic immunity from jurisdiction will waiver from the sending state especially in some civil cases but this waiver must be expressed. However, the waiver from the jurisdiction does not waive from any measures of execution.
The diplomatic agent has immunity from jurisdiction in the receiving state but this does not exempt him from the jurisdiction of the sending state. This paper has examined the requirements to cover the assignment question and it has been supported with relevant law case materials and appropriate rules from the Vienna Convention on diplomatic relations 1961.