Understanding Diplomatic Privileges and Immunities
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Campus talk @Middlesex University in Dubai An internal US inspection report released this summer criticized the US ambassador to the UAE, HE Michael Corbin, for misusing parts of his diplomatic privileges. Not only in the UAE the granting of diplomatic privileges and immunities is a controversially debated topic. In the public eye diplomats seem to enjoy traditional prerogatives enabling them to float above the law. In the light of abuses of diplomatic immunities such as parking, speeding or even more serious crimes such as drug and people trafficking the upcoming Monday night speaker lecture will raise the question why states grant diplomatic immunities. In order to create a basic understanding the lecture will analyze the historical evolution of legal doctrines underlying the concession of diplomatic privileges and immunities. Diplomatic law governing the inviolability of permanent mission premises and immunities of their staff are regulated in the 1961 Vienna Convention on Diplomatic Relations (VCDR). We will look at the codification history of the VCDR and discuss cases of abuses of diplomatic immunities in order to get a feel for the link between legal theory and diplomatic practice to deepen our understanding of the benefits of such long-standing diplomatic practice.
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Understanding Diplomatic Privileges and Immunities
- 2. ABUSES OF DIPLOMATIC IMMUNITIES? M I C H A E L C O R B I N 2 0 1 4 J U L I A N A S S A N G E 2 0 1 2 Y V O N N E F L E T C H E R 1 9 8 4 Are diplomats floating above the law?
- 3. OVERVIEW 1) Why do we have diplomatic immunities? What are its legal doctrines? 2) How did diplomatic law, and its codification evolve over time? 3) Why do we have the 1961 Vienna Convention on Diplomatic Relations (VCDR)?
- 4. WHAT ARE DIPLOMATIC IMMUNITIES? • Entail a special legal position accorded to diplomats by the receiving state • Diplomats not subject to the ordinary process of law VCDR Article 41 (1): […]it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State […]
- 5. TRIPARTITE OF DIPLOMATIC IMMUNITIES Tripartite of diplomatic immunities* 1. Inviolability of mission premises and its staff 2. Diplomats enjoy freedom from criminal jurisdiction 3. Leads to granting of privileges such as exemptions from dues, taxation and custom duties * Berridge/ Lloyd (2012), Dictionary of Diplomacy, p. 110f
- 6. WHY DO WE HAVE DIPLOMATIC IMMUNITIES? VCDR preamble: two doctrines are mentioned • functionality & representative character theory
- 7. REPRESENTATIVE CHARACTER THEORY • Starting point: do not kill the messenger • Envoys = dignity of majestas of the state 1)Ambassadors must be admitted 2)Ambassadors must be free from violence
- 8. DOCTRINE OF EXTERRITORIALITY Renaissance Italy Emergence of modern diplomacy; 1420 & 1530 Resident ambassador’s tasks • make allies & undertake intelligence work Theory of exterritoriality • Fiction: ambassadors abroad remained at home • Diplomatic premises constituted an extension of Home! the sovereign state
- 9. DOCTRINE OF FUNCTIONALITY • 20th century • Predominant legal justification for diplomatic privileges and immunities diplomacy • Diplomat is not subject to the jurisdiction of local courts because this would hamper his diplomatic function Home!
- 10. CODIFICATION OF DIPLOMATIC IMMUNITIES Year Instrument Object 1815 Congress of Vienna Vienna Regulation, precedence 1895/1929 Institute of International Law Oxford sessions/ New York resolution 1928 Havana Convention Ordinary/extraordi nary representation 1932 Harvard Draft Diplomatic Privileges and Immunities
- 11. VCDR & PREPARATORY STAGE United Nations made codification of international law integral part of its work Lesson learnt from past experience under League of Nations Cecil Hurst: A plea for the codification of international law on new lines International Law Commission in 1949 which included the codification of diplomatic immunities in its list of codification
- 12. VCDR & PREPARATORY STAGE
- 13. IMPORTANCE OF PREPARATORY WORK: • Settled Cold War issues: freedom of movement, size of mission,… • It set the scope of codification: consular relations ,diplomatic asylum, immunities granted to international organizations • Balance of legally-binding form with focus on codification
- 14. VCDR & DIPLOMATIC STAGE 2 March – 14 April 1961: Vienna Conference VCDR product of its time: focus on inter-state politics to avoid friction between states; conference is famous for its friendly atmosphere Signature on 18 April, 81 delegations -first conference under UN during which Afro-Asian delegations formed a majority (29/81)
- 15. POLITICAL SIGNIFICANCE OF VCDR • It avoided friction through clear rules • Provided clear rules to newly independent states • Strengthened the reputation of the International Law Commission/ United Nations
- 16. STRUCTURE OF VCDR • From 28 to 53 Articles, two optional protocols on nationality and settlement of disputes and four resolutions (special missions, consideration of civil claims, tribute to ILC, tribute to Austria) Preamble Doctrines Functionality, representative theory Article 1 Definitions Diplomatic agent Article 2-19 Formal matters concerning establishment and maintenance of diplomatic relations Functions of mission, persona non grata, size of mission Article 20-40 Relate to privileges and immunities accorded to diplomatic missions and persons connected with them Inviolability of mission premises, diplomatic bag, tax exemptions Article 41-47 Miscellaneous provisions Duty to respect local laws, termination of function Article 48-53 Final clauses Signature, ratification
- 17. 4 MAJOR PROVISIONS* Absolute inviolability of mission premises (Article 22) • Not even to enter without of the head of mission • Host country is in a duty to protect mission against intrusion or damage 2012 Ecuadorian mission in London/ Assange 1977 US mission in Moscow/ burning *Bjola/Kornprobst (2013), Understanding International Diplomacy
- 18. 4 MAJOR PROVISIONS Diplomatic immunity (Article 31) • Diplomat enjoys immunity from criminal jurisdiction, and with some exceptions also civil and administrative jurisdiction • Different degrees of diplomatic immunity
- 19. 4 MAJOR PROVISIONS Freedom of diplomatic communication (Article 27) • Including diplomatic bag & diplomatic wireless • Communication between mission and sending state (not within receiving state!) • Embassy ought not to interfere in internal affairs of host country
- 20. 4 MAJOR PROVISIONS Persona non grata declaration (Article 9) • 2004 Mexico declared Cuban diplomat persona non grata after Castro had declared Mexico's prestige had turned into ashes. • In 1971 Britain sent 105 (550) Soviet citizens home Fidel Castro British Foreign Secretary Alec Douglas-Home with prime minister Edward Heath
- 21. COMPLIANCE WITH VCDR : INVIOLABILITY • Mission premises are inviolable; in some cases this is violated. Most headline-producing was Iran Hostage Crisis in 1979 and another incident with UK embassy in Tehran in 2011 were the Iranian government failed to protect the mission premises. 1979: Iranian students storm US embassy
- 22. COMPLIANCE WITH VCDR : DIPLO IMMUNITY • Diplomatic immunity: diplomats become target of mistreatment. • In 2002 African ambassadors requested better protection form the Russian authorities, concerned about racist attacks.
- 23. COMPLIANCE WITH VCDR : TAPPED COMMUNICATION Tempering with communication lines Cold War: FBI built a tunnel underneath Soviet embassy Recent examples include spying on top politicians organized via mission premises (Angela Merkel)
- 24. CONCLUSION 1. Immunities granted for functions of a diplomatic mission and because they represent a foreign state. 2. Doctrine of functionality & representative theory 3. Diplomats have a duty to respect local laws (Article 41) and are not above the law. 4. 1815 Règlement de Vienne, 1928 Havana Convention, 1932 Harvard Draft 5. VCDR contains 53 articles, most of which are a pure codification of diplomatic custom; most important ones are Article 9 (Persona non grata), 22 (Inviolability of mission premises), 27 (freedom of communication), and 31 (Diplomatic Immunity).
- 25. A CORNERSTONE OF MODERN DIPLOMACY R E V I EWS “This book serves two important functions – adding to the literature about the making of the 1961 Vienna Convention on Diplomatic Relations and providing an account of the UK's role in its creation. Scholars in both will find it compelling and useful.” Prof Richard Langhorne, Buckingham University, UK Thank you.