International law and the diplomat

Stephen Vasciannie

Saturday, October 29, 2016

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Most of us have the general sense that diplomats and diplomatic premises receive special legal protection. Some of us may be inclined to the view that the protections afforded diplomats and diplomatic premises are unduly generous, and that, therefore, the scheme of protection should be revised.


In at least one sense, this line of thought would be in keeping with certain trends in international relations. Specifically, in recent years, there have been pronounced efforts to ensure that heads of state and government cannot act with impunity.


Thus, there have been international efforts to weaken the force of sovereign immunity, and certain tribunals, such as the International Criminal Court, come to their decisions without giving any type of privilege to state leaders and ministers.


In this context, some people argue that if government leaders are not always immune from court-ordered sanctions, then, by the same token, diplomatic privileges and immunities should be watered down.


Before reaching any conclusions on whether or not diplomatic immunities should be reduced, it may be appropriate to undertake a general review of the international law concerning diplomats.




BASIS FOR IMMUNITY


For a start, why do diplomats and diplomatic premises have privileges and immunities? At an earlier time, the theory of diplomatic protection was linked by some authorities to the status of the diplomat as the representative of the sovereign.


At that time, sovereigns, as equals, were assumed to lack jurisdiction over each other; this was consistent with the Latin maxim par parem non habet imperium. The argument ran: if one sovereign is not subject to the jurisdiction of another, then the sovereign’s representative (the ambassador) should also be immune from the jurisdiction of other sovereigns.


Today, this line of approach is not fully applicable to diplomats. Rather, the basis for diplomatic immunity is now to be found primarily in the notion of functional necessity. States send their diplomats to foreign countries to undertake particular functions. The diplomat must be allowed to perform her or his functions without interference from the host State. With this in mind, the diplomat is given immunities not for personal benefit, but to ensure efficiency.




VIENNA CONVENTION


This approach is expressly affirmed in the Vienna Convention on Diplomatic Relations (1961), the main multilateral treaty in this area of international law. The Vienna Convention entered into force in 1964 and has 190 states parties today. It is therefore overwhelmingly supported by states, and most, if not all of its provisions, reflect customary international law.


The diplomat, then, has immunity to carry out functions. States realise that, without such immunity, their main representatives may be subject to pressure in some host states — pressure which may vary from direct attempts to discriminate against diplomats to more subtle forms of interference with the diplomat’s work. And because the basic point of the diplomat’s immunity is to permit efficient performance of duties, the immunity is also conferred on the diplomat’s family, an approach confirmed by the Vienna Convention.




DIPLOMATIC PREMISES


But why are diplomatic premises also afforded immunity? On this point, an easy answer would be that the diplomatic premises represent the sovereign territory of the sending State in the host country. So one could think that the embassy of State X in Jamaica is sovereign territory of State X. This easy answer would be incorrect. The idea that State X’s embassy is the territory of State X in Jamaica has been refuted in law.


We can appreciate this if we consider the case of a lady from Jamaica who has her baby delivered in the Embassy of State X. In all likelihood, that baby will be Jamaican and will not automatically have the nationality of State X.


A similar line of reasoning was carried in the English case of Radwan v Radwan. Briefly, in this case the question was whether a divorce granted in the Egyptian Consulate in London was obtained in a country outside Britain. If, as a matter of law, the Egyptian consulate was Egyptian territory, then the divorce would have been given outside Britain. But the court held otherwise, with the judge (Cumming-Bruce J) rejecting the "extraterritoriality" theory.


So then, if an embassy puts up a flag on its property that prompts debate, the proper defence is not that the premises of the embassy constitutes the territory of the embassy — it does not.




INVIOLABILITY AND FLAGS


As in the case of diplomats, embassies have special protection in keeping with the concept of "functional necessity". The mission in a foreign territory must not be subject to interference that could undermine its work. For this reason the Vienna Convention stipulates not that embassies are foreign territory, but rather that they are premises which are "inviolable".


In practical terms, the inviolability of diplomatic premises means that agents of the host State may not enter the premises without the consent of the ambassador. The Vienna Convention also requires the host State to take "appropriate steps" to protect the embassy from intrusion or damage, and to preserve its peace and dignity.


Now, because the premises of the mission are inviolable, it is fair to suggest that the host State cannot legally bar the embassy from flying a controversial flag on its property. No doubt, the host State would not have the right to enter the premises to take down the flag; and, indeed, the host State would be under a legal duty to protect the embassy from individuals who might want to take down the flag.


Notice, however, that this conclusion does not preclude the legal right of any critic to express a view on the placement of the flag. Both the placement of the flag and the criticisms thereof are best viewed as legitimate exercises in freedom of expression.




SEEKING REFUGE


Because the diplomatic premises are inviolable, embassies sometimes become centres of refuge for people who wish to evade punishment. Students of international law will recall the case of Haya de la Torre, a Peruvian revolutionary who fled into the Colombian premises in Peru following a failed coup.


In that case from 1950 — the Asylum Case — the International Court of Justice concluded that there was no rule of regional custom which gave Colombia the right to decide whether or not Haya de la Torre should be granted asylum status. Significantly, however, the Peruvian authorities were not allowed to enter the Colombian diplomatic premises to capture Haya de la Torre.


More recently, Julian Assange of Wikileaks has fled from British authorities into the Ecuadoran Embassy in London. Assange has been in the Swedish Embassy since 2012. The Assange matter has a number of different dimensions, but, for the present purposes, the point is that the British authorities have not violated the Vienna Convention. Assange has remained in the embassy, and the embassy has remained inviolable.




LIBYA AND IRAN


Britain also had to address aspects of the inviolability of diplomatic premises in the Libyan People’s Bureau incident of 1984. In that incident, gunfire from the Libyan Embassy killed a British constable (Yvonne Fletcher) and injured a number of other people. Britain did not storm the embassy at the time of the shooting, but rather severed diplomatic ties with Libya and allowed the mission staff to leave. Thereafter, the vacated embassy premises were searched and weapons were found. Inviolability was respected.


In the United States diplomatic and consular staff in Tehran case, the opposite occurred. In this case from 1980, militant students and other demonstrators seized control of the United States Embassy in Iran and held 52 embassy staff and citizens as hostages for 444 days. In addressing this case, the International Court of Justice acknowledged that the students and demonstrators were not initially acting as agents of the State.




Hostages case


Significantly, however, the court found that the Iranian authorities came to adopt the actions of the demonstrators as their own and therefore assumed State responsibility for the detention of the hostages in the US Embassy.


In this regard, the court expressly took cognisance of statements of Aytollah Khomeini to the effect that the US Embassy was a "centre of espionage and conspiracy" and that "those people who hatched plots against our Islamic movement in that place do not enjoy international diplomatic respect". By such remarks the Iranian Government was held by the court to have given its seal of approval to the violation of the Vienna Convention.




Vargas case


It should also be borne in mind that the rules giving inviolability to diplomatic premises extend the residence of the ambassador. Thus, if, for instance, there is an incident at the diplomatic residence, then the local police must await permission from the head of mission or a suitable alternative before entering the home.


In November 1997, this rule in the Vienna Convention became a matter of notice in Jamaica when, sadly, ambassador Alfredo Vargas of Venezuela was killed at the diplomatic home. The local police were not in a position to enter the home until they received permission from the late ambassador’s wife.




Fire!


From time to time lawyers question whether the rules concerning inviolability are absolute. They are stated in firm, unequivocal terms — there should be no entry without permission. But what if, for example, there is a fire on the diplomatic premises and, for whatever reason, the ambassador declines permission for the local authorities to enter? Should the authorities remain quiescent even in the face of an emergency? In practice, the better response would be for local authorities to address the emergency, and to justify their actions on the basis of the inherent right of the State to act in self-defence; the matter, though, is not free from doubt.




Criminal matters


Another set of issues concern the personal standing of the ambassador. The ambassador and the family will have inviolability of their person. In effect, they shall not be arrested or detained for any reason. In addition, the ambassador and family shall be immune from the criminal jurisdiction of the host State.


With respect to criminal matters, the complaint is sometimes made the immunities grant could allow a diplomat quite literally to get away with murder. This may be an exaggeration. For one thing, if a diplomat commits a crime, or is believed to have committed one, the sending State may waive the immunity, and thus open the way for local court proceedings to be undertaken. The diplomat may not be in a position to predict whether or not the immunity will be waived.


For another, if a diplomat is suspected of criminal wrongdoing, the host State always has the option of declaring the diplomat persona non grata, giving rise to expulsion. Admittedly, expulsion in cases of serious criminal allegations may be a mild sacrifice for the diplomat; but the possibility of expulsion, and consequent embarrassment to the sending State is a type of sanction.




PERSONA NON GRATA


To be sure, diplomats may be declared persona non grata even when there are no allegations of criminal wrongdoing. In the case of Jamaica, the Michael Manley Government expelled Ambassador Vincent DeRoulet of the United States in 1973 for reasons having to do with statements made to the US Congress about American bauxite company operations in Jamaica.


And, in 1980, the Edward Seaga Government expelled Ambassador Ulises Estrada of Cuba. Ambassador Estrada, rather in the manner of Ambassador DeRoulet, was expelled for statements made. In his case, Ambassador Estrada was deemed by his statements to have been interfering in the domestic affairs of Jamaica.




CIVIL JURISDICTION


Generally speaking, diplomats also have immunity from civil jurisdiction in the receiving State. This may be irksome for individuals who have to do business with diplomats, because, it means that if the diplomat fails to meet a commercial obligation, the other party may have difficulty obtaining a suitable remedy.


There are, however, some exceptions to the general rule of immunity in civil matters. Specifically, the diplomat will not have immunity in relation to property matters undertaken by the diplomat in a private capacity. Also, the diplomat will not have immunity if she or he acts in a private capacity, as an executor, administrator, heir or legatee. In addition, where the diplomat undertakes professional or commercial activity outside his or her official functions, there will be no immunity from civil action.




TAXATION


With certain exceptions specified in the Vienna Convention, diplomats are exempt from the payment of taxes. This rule is designed expressly to ensure that the diplomat is not vulnerable to pressure from the government of the receiving State. Naturally, taxpayers are sometimes resentful that the diplomat appears to be having a "free ride" with respect to particular fiscal impositions.




DIPLOMATIC BAG


One area in which some degree of diplomatic abuse has been identified concerns the diplomatic bag. According to the Vienna Convention, the diplomatic bag "shall not be opened or detained", a form of words suggesting that the bag shall not be subject to inspection. But what if there is suspicion that the bag is being used to bring illicit weapons into a country, or, as has happened, to ship out hostages? Does the State have to stand idly by while this form of abuse may be taking place?


In the circumstances, some countries apply a narrow reading of the provision concerning the bag. They reserve the right to scan the bag, or to have dogs sniff the bag, on the premise that neither scanning nor sniffing involve "opening" or "detaining" it.


The United Nations International Law Commission has adopted draft articles that frown upon the examination of the diplomatic bag by electronic means. The commission, on the other hand, would give the receiving State the right to request that the bag be opened in the presence of an authorised representative of the sending State. If the sending State refuses to grant this request, then the receiving State may send back the bag.


These rules from the commission have not become law, but they underline that this is an area of uncertainty.


As is evident from the substantial number of States Parties to the Vienna Convention, states generally regard the rules on diplomatic immunity as essential for international discourse. There will be instances in which diplomats take advantage of their status, but, in the main the rules are respected and diplomats do not abuse their privileges.




POSITIVE BEHAVIOUR


One factor which explains the generally positive behaviour of diplomats is the fact that diplomatic representation is viewed, in many places, as a highly professionalised area of activity. Another factor concerns the sanctions which the sending State may apply if a diplomat is wayward in behaviour. And, just as importantly, all states are mindful of reciprocity in international relations.


If one country’s diplomat violates the rules of good conduct, that country may well find itself on the receiving end of similar violations from other countries. In the end, therefore, the system works, but not without significant instances of abuse and uncertainty.




Stephen Vasciannie, CD, is professor of international law at The University of the West Indies, and a former Jamaican ambassador to the USA and Permanent Representative to the OAS.

   


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