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Are diplomats floating above the law?

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)?

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 […]

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

WHY DO WE HAVE DIPLOMATIC IMMUNITIES?VCDR preamble: two doctrines are

mentioned• functionality & representative

character theory

CSI: We cannot

enter the

premises

because it is

foreign

territority

!???

Exterritoriality

??

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

DOCTRINE OF EXTERRITORIALITY

Renaissance Italy

Emergence of modern diplomacy; 1420 & 1530

Resident ambassador’s tasks• make allies & undertake intelligence work

Home!

Theory of exterritoriality• Fiction: ambassadors abroad remained at home• Diplomatic premises constituted an extension of the sovereign state

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!

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/extraordinary representation

1932 Harvard Draft Diplomatic Privileges and Immunities

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

VCDR & PREPARATORY STAGE

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

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)

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

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

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

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

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

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

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

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.

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)

CONCLUSION1. 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).

A CORNERSTONE OF MODERN DIPLOMACY

R E V I E W S

“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

“The Convention has established itself as

a cornerstone of modern international

relations”Eileen Denza (author of Diplomatic Law)

Thank you.