The Ancient Concept Of Diplomatic Immunity And Relations Across Borders Law Essay

INTRODUCTION

Diplomatic immunity is considered as an ancient concept concerning relations across borders. It even dates back to Ancient Greece and Rome. Today, it is a principle that has been codified into the Vienna Convention on Diplomatic Relations 1961 and this regulates past customs and practices. Indeed, as the ICJ indicated in US v. Iran [1] , a large number of the provisions of the Convention reflect customary international law. Moreover, it was found that almost all disputes relating to diplomatic law could be resolved by referring to the Convention or the obligations contained in it.

The term ‘Diplomatic immunity and privileges’ connotes a form of legal immunity and a policy held between governments. This aims at ensuring that diplomats are safe in the host State and that they are not liable to lawsuit or prosecution under the laws of the receiving State. It is noteworthy to state that there is a distinction between an immunity and a privilege but these are known to have been used interchangeably [2] . Various authors like Morton, Stefko and Makowski have tried to distinguish between the meanings. Although each of them described the terms in his own words, they basically have a common denominator. ‘Privileges’ can be defined as benefits or rights that other persons do not have while ‘Immunities’ can be considered as exemptions from the jurisdiction of the law of the receiving State. [3] 

The traditional tasks of the diplomats can be summarised as follows: analytical assessment of the receiving State, protection of citizens of the sending State who are present in the host State and relation building between the two States. However, today, diplomats also deal with issues such as the promotion of trade, peacemaking, environmental concerns, nuclear weapons and drug abuse across borders amongst others. According to Brownlie, diplomacy exists to create and maintain communication between States so that objectives regarding commercial, political and

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legal activities can be pursued. [4] It can be argued that, today, instantaneous communication can be made via modern devices. Yet, long-distance communication can in no way rival the personal and confidential meetings between the representative of the sending State and the Government of the receiving State. As such, diplomats are granted some immunities and privileges to perform the tasks to which they are accredited efficiently. [5] 

Unfortunately, diplomats started overusing or abusing of the immunities and privileges they were benefitting from. Indeed, immunities ranging from personal immunity from jurisdiction to the inviolability of the diplomatic bag led to abuses of the protection afforded by the VCDR. Furthermore, since the staff and families of diplomatic officials also enjoy privileges and immunities, there were abuses by them also. Hence, members of diplomatic missions and their families are immune from local punishment and they seem to be above the local law. Although the VCDR provides remedies against diplomats, staff and families who commit abuses, it seems that these are not enough to suppress wrongdoings.

Nevertheless, the receiving States are not left to their misfortune without remedies. Indeed, certain measures are provided for in the VCDR to hinder the condemnable acts of the diplomats such as the declaration that the diplomat is persona non grata. Additionally, various acts in the UK, the US and the Republic of South Africa will be analysed in order to show which measures were taken by a few Governments to try to curb diplomatic abuses.

Without any doubt, the VCDR did not prepare for some eventualities and measures to deter the unwarranted acts by diplomats are lacking. Although it would be difficult to totally eliminate the abuses, measures can be taken to reduce them considerably.

It is to be noted that only selected articles of the VCDR which deal with immunity, privileges and abuses will be dealt with in this dissertation. Moreover, for illustration and analysis purposes, some cases prior to 1961 will be used throughout the dissertation.

This dissertation will firstly explore the history behind Diplomatic Relations and the theories which moulded diplomatic immunity and privileges (Chapter 1). Secondly, the different types of immunities and privileges granted to diplomats will be elaborated upon (Chapter 2). Next, abuses by diplomatic agents and their families will be dealt with (Chapter 3). Furthermore, an overview on existing measures to curb abuses will follow (Chapter 4). Finally, several suggestions have been put forward to hinder such abuses (Chapter 5).

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CHAPTER 1: HISTORICAL ORIGIN AND SOURCES OF LAW OF DIPLOMATIC IMMUNITY

Modern Diplomatic Law was shaped by events and ideas since time immemorial. According to some authors [6] , diplomatic immunity existed since the era of cavemen -who would probably communicate with one another to draw the limits of their hunting grounds.

This chapter will deal with the most important parts of the historical development of diplomatic relations (1.1). Then, the VCDR will be analysed (1.2). Eventually, an overview will follow on other important sources of Diplomatic Law (1.3).

HISTORICAL DEVELOPMENT OF DIPLOMATIC RELATIONS

There were many stages of development of diplomatic relations in the past (1.1.1). As from antiquity itself, modern forms of protection were given to envoys. It is found that diplomatic relations were also influenced by Natural Law from the 12th to the 17th century and positivist writers after the 17th century. [7] Finally, there were also theroies which shaped diplomatic immunity (1.1.2).

DIPLOMATIC RELATIONS IN THE PAST

The preamble of the VCDR states that:

“…Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agents…”

Building on this statement, it is affirmed that Diplomatic Immunity has undeniably been a facet of diplomatic relations for countless years. In fact, it is regarded as one of the oldest branches of International Law. Indeed, since time immemorial, envoys were selected and sent to forward messages, obtain replies and give report on news from receiving States. Necessity was a principle which forced most States to give diplomats protection, both within the host State and in States of transit. [8] 

In Antiquity, diplomatic immunity was regarded as a divine right. The main factors ensuring immunity and privileges were culture, language and religion. The ideas and customs of the Roman community concerning immunity have been categorically established and these created the foundation of modern practices. The earliest record of organised diplomatic law is found in Ancient Greece whereby the Greek Government gave special status to foreign representatives. [9] 

During the Renaissance, scholars and others laid emphasis on the idea that Natural Law gave a strong argument for the protection of envoys during their official functions. [10] The most important principle of the Naturalist doctrine was that of necessity; it was necessary to protect ambassadors because of the importance of their functions. [11] Grotius, a naturalist writer, arrived at the conclusion that immunity was based on Natural Law; he argued that the safety of diplomats was far more important than any advantage which could be derived from the punishment of his crimes. His security would be challenged if he were to be prosecuted by States other than the sending State. [12] 

By the 19th century, Natural law declined and there was a shift to positive law. One positivist theorist, Van Bynkershoek, pointed out that the law of Nations was based on the common consent between Nations through international customs or through treaties. He continued by expanding the concept of immunity and justifying it, whether there were questionable acts or not, by saying that an ambassador acted “through wine and women, through favours and foul devices” [13] .

Certainly, the evolution of diplomatic relations did not stop here. Immunities and privileges developed partly as a result of sovereign immunity and the independence and equality of States. [14] Further, as there were more and more permanent missions as compared to ad hoc ones, Sovereigns accepted the importance of ambassadors to negotiate and collect information. [15] In 1815, it is found that Vienna was the first site of a Congress for diplomatic agents. Next, the first international attempt to codify the Diplomatic Law was in 1895 with the Draft Convention of the Institute of International Law. [16] 

In 1927, the League of Nations Committee of Experts for the Progressive Codification of International Law made a report analysing existing customary law of diplomatic privileges and immunities. This aimed at providing a temporary instrument until a more comprehensive codification could be written. [17] Eventually, Diplomatic Law further progressed with the Havana Convention on Diplomatic Officers 1928. According to its preamble, diplomats should not claim immunities which were not fundamental in performing his official tasks.

THEORIES WHICH SHAPED DIPLOMATIC IMMUNITY

With a further step towards modern immunity with the creation of resident or permanent embassies, three theories were developed and these moulded diplomatic law since the 16th century. [18] These theories are Exterritoriality, Personal Representation and Functional Necessity. Each played a prominent role during different periods in history.

(a) PERSONAL REPRESENTATION

The basis of this theory was that diplomats received immunity as if they were the foreign sovereign. This was out of respect and avoided any form of conflict as the sending State was pleased. In other words, a diplomat’s immunity arose because he was an extension of the ruler sending him. The representative was treated as though the sovereign of that country was conducting the negotiations, making alliances or refusing requests [19] .

The great theorists of the 16th and 17th century like Grotius, Van Bynkershoek, Wicquefort, Montesquieu and Vattel supported the use of this theory [20] . In The Schooner Exchange v McFaddon [21] , the Court held that, by regarding the ambassador as the sovereign’s representative, it ensured their stature. If they were not accorded exemptions, every sovereign would cast a shadow on his own dignity when sending an ambassador to a foreign State.

(b) EXTERRITORIALITY

This theory is based on the Roman law principle whereby a man took his own land’s law with him when he went to another land [22] . The crux of this theory is that the offices, property and homes of diplomats and even their persons were to be treated, throughout their stay, as though they were on the territory of the sending State. Any crimes committed by the members of that embassy could not be lawfully prosecuted in the receiving State. This theory soon developed and extended to the staff and family of diplomats. Authors like Emmerich de Vattel and James Lorimer emphasised that an ambassador’s house and person are not domiciled in the receiving State, but in the sending State [23] .

In King v Guerchy [24] , an English Court did not prosecute a French ambassador for an attempt to assassinate another Frenchman. The Court held that an ambassador owes no subjection to the Courts of the country to which he is sent. He is supposed, by a fiction of law, to be still resident in his own country [25] . In Taylor v Best [26] , Jervis CJ declared that the basis of privilege is that the ambassador is assumed to be in his own country. The Attorney-General in Magdalena Steam Navigation Co v Martin [27] expressed similar opinions.

(c) FUNCTIONAL NECESSITY

Functional necessity aims not only at allowing the individual diplomat to function freely and effectively, but also ensuring the efficient functioning of the diplomatic process as a whole. This requires the fullest protection be given even if the diplomat goes beyond his function [28] . This is based on the idea that immunity is necessary and recognised for the efficient functioning of the diplomat. This theory gained impetus due to the expansion of permanent resident embassies. It is incorporated in the VCDR as the dominant theory in the preamble.

Functional necessity limits immunities and privileges to those functions performed by the diplomat in his official capacity. When performing an official task, diplomats need to be able to move freely and not be obstructed by the receiving State. They must be able to observe and report with confidence without the fear of being reprimanded [29] . This immunity may be understood to mean that diplomats may break the law of the receiving State in order to fulfil their functions.

Grotius stresses that an ambassador must be free from all coercion in order to fulfil his duties [30] . Vattel placed the greatest emphasis on the theory in order for ambassadors to accomplish the object of their appointment safely, freely, faithfully and successfully by receiving the necessary immunities [31] .

In the 18th century, the Lord Chancellor in Buvot v. Barbuit [32] declared that diplomatic privileges stem from the necessity that nations need to interact with one another. Similarly, in Parkinson v Potter [33] , the Court observed that an extension of exemption from jurisdiction of the Courts was essential to the duties that the ambassador has to perform.

THE VCDR [34] 

Further along the time-line, in 1961, an international treaty was born to codify the past practices: the VCDR. This is the main source of Diplomatic Law and which is embodied into a comprehensive and widely accepted international treaty which was signed by 179 parties. It was adopted on 18 April 1961 during the UN Conference on Diplomatic Intercourse and Immunities held in Vienna. This Convention bears testament to the efforts of States to reach agreement for the common good. Its provisions marked progression of custom into settled law and resolved areas of contention where practices conflicted [35] .

The Convention contains 53 articles that govern the behaviour of diplomats, 13 of which address the issue of immunity. Due to the comprehensive formulation of a wide range of aspects of diplomatic law, the VCDR met with a lot of success. Indeed most states were satisfied because of the presence reciprocity [36] which renders each state both a sending and a receiving state.

It is to be noted that diplomatic immunity should not be confused with Consular immunity [37] , State immunity, UN immunity [38] and international organisations immunity [39] . Importantly, the VCDR focuses only on permanent envoys and does not deal with ad hoc envoys which are covered by another Convention [40] .

This section will deal with working towards the VCDR (1.2.1). For a better understanding of the VCDR, a brief study on the provisions of the VCDR will follow (1.2.2).

1.2.1 WORKING TOWARDS THE VCDR

Before 1961, Diplomatic Law was, to a large extent, customary and it was accompanied by some attempts to codify certain rules [41] . None of those attempts addressed the field in sufficient detail. In 1957, following the General Assembly Resolution 685, the ILC accepted to prepare a draft Convention on Diplomatic Relations. The drafters had the burdensome task of incorporating the concerns of all countries involved in the early 1960s and a history dating as far as the first civilised settlements.

The ILC requested information and opinions from governments so that a worthy document could be drafted. This was necessary in order to eliminate diverging views and customs. While formulating the Convention, the drafters also considered the absolute immunity granted to diplomats since ancient times.

In 1961, the Conference was organised to discuss the draft and this was attended by 81 States and several international organisations as observers. These States were able to reach consensus on many issues. The VCDR, based on a series of draft articles, was agreed upon. It solved dissensions concerning State practice, made available additional rules and agreed that customs would govern field which were not dealt with in the VCDR [42] .

It is to be noted that although the VCDR successfully codified several practices, not everyone got what they wanted. For instance, the US argued unsuccessfully for retaining many diplomatic privileges while other States like Italy and Argentina wanted limited immunity. Colombia, Egypt, India and Norway amongst others proposed the prohibiting of diplomatic personnel from engaging in commercial activity.

1.2.2 PROVISIONS OF THE VCDR [43] 

The VCDR provides certain immunities and privileges to different levels of diplomatic officials, their staff and families. For example, diplomats benefit from inviolability of their person, immunity from the law of the receiving state and inviolability of their property. Furthermore, the mission’s premises and documents are also protected from violation. The VCDR also grants many fiscal privileges and limited customs exemptions. Next, the VCDR gives definitions of some typical functions of the diplomatic mission such as representing the sending State in another state [44] .

The VCDR also lays importance on the duties and rights of the receiving State. Examples are the rights to disapprove a potential head of mission, to decide that a member of the diplomatic mission is persona non grata and to limit the size of the mission amongst others. Additionally, the host state must protect the premises of the mission as well as its communications. Furthermore, the receiving state has to provide adequate facilities so that the mission can function smoothly. It is noteworthy to stress that an accredited person is not exempt from the obligation to obey local law. In fact, he is under an express duty to do so.

OTHER IMPORTANT SOURCES OF DIPLOMATIC LAW

Apart from the VCDR, Diplomatic Immunity is regulated by other sources of law. Indeed, they deal with aspects which are not covered under the main Convention.

As such, there are Optional Protocols (1.3.1), a Convention covering the prevention and the punishment of internationally protected persons (1.3.2) and Municipal Law which is very important for States which are not directly influenced by International Law (1.3.3).

1.3.1 OPTIONAL PROTOCOLS

During the UN Conference on Diplomatic Intercourse and Immunities held in Vienna, 2 Optional Protocols were also adopted. Countries may ratify the main treaty, that is, the VCDR, without necessarily ratifying these optional agreements. These are the Protocol:

Concerning Acquisition of Nationality which mainly dictates that the Head of the mission, the staff of the Mission and their families shall not acquire the nationality of the receiving country.

Concerning Compulsory Settlement of Dispute. In brief, disputes arising from the interpretation of the VCDR may be brought before the ICJ. As such, article 1 of that Protocol states that:

“Disputes arising out of the interpretation of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court.”

1.3.2 THE UN CONVENTION ON THE PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS, INCLUDING DIPLOMATIC AGENTS 1973 (CPPCPP)

The CPPCPP provides that States parties must consider attacks upon diplomats as crimes in internal law and obliges them to extradite or prosecute offenders. Also, in exceptional cases, a diplomat may be arrested or detained on the basis of self-defence or in the interests of protecting human life in the receiving State.

A series of kidnappings of senior diplomats occurred in the late 1960s and early 1970s. The object of the kidnappings was always to extract a particular demand from a government. The threat of the execution of a diplomat and the failure to fulfil the demand leads to the refusing government being held responsible for his death. As a consequence of the high incidence of political acts of violence directed against diplomats and other officials, the General Assembly of the UN adopted the CPPCPP.

The foreseen offences are primarily murder, kidnapping, attacks upon the person, violent attacks upon official and private premises, and any threats or attempts to commit any of the above offences. [45] 

Nations ratifying the Prevention and Punishment Convention make these crimes punishable with appropriate penalties, which take into account the gravity of the offence and either extradite offenders or apply the domestic law. Where there is a threat to the safety of a diplomat, such as a mob attack or kidnapping, the receiving State should provide special protection, like an armed guard or bodyguards.

1.3.3 MUNICIPAL LAW

Many states are not bound by international law. Indeed, there are rules that treaties made do not have direct effect in national law. As such, it is necessary that those provisions of the Conventions be transformed into municipal law. There are, therefore, a number of Acts of parliament which mirror the VCDR and which also complement it or substitute some of its provisions.

In the UK, these include the Diplomatic and Consular Premises Act 1987, providing that the consent of the Secretary of State for Foreign Affairs is required before land can become diplomatic or consular premises and giving him certain powers in respect of disused premises and the Diplomatic Privileges Act 1964 which reflects the provisions of the VCDR.

In the Republic of South Africa, there is the Diplomatic Privileges Act [46] which repealed the Diplomatic Immunities Act of 1932 and the Diplomatic Immunities Amendment Act of 1934. In the Republic of Mauritius, the Constitution is the supreme law of the land [47] and International Law has no effects without ratification. As such, laws must be passed at parliamentary level, for example, the Consular Relations Act [48] reflecting the Vienna Convention on Consular Relations 1963 and the Diplomatic Relations Act [49] which reflects the VCDR.

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