ArtsAutosBooksBusinessEducationEntertainmentFamilyFashionFoodGamesGenderHealthHolidaysHomeHubPagesPersonal FinancePetsPoliticsReligionSportsTechnologyTravel

Diplomatic Immunity, the Vienna Conventions (A CASE STUDY)

Updated on March 15, 2016

Analysis

International law is the combination of laws and regulations only recognized and acceptable between the member states. It acts as the basis for custom of organized and stable universal relations. Member states should be in agreement with a particular course of conduct in order to be obliged to abide to the international law.[1] In 1863 the first written citation of Public International Law was formed to control the behavior of the military during the Civil War in the United States. In the following years, other countries subscribed to this documentation. Sources of International law include international treaties, general principles of law and customs.[2] Customary international law is obtained from the normal practices of a country. It states that the normal practices are required by a legal obligation for conviction of a Nation to occur. It establishes the method for identifying countries as the primary issue in the universal legal system. International law is concerned with the establishment of a legal framework for member states to conduct with each other. [3]

There is no legislation in the international political system thus the laws and principles of international law are known through various mechanisms. This makes international law difficult to pin down. The main issue is the free body of the nation in whatever form it takes for a given country. It may be the President or ambassador but it is commonly the bureaucratic representation of the sovereign power. The exemption enjoyed by international states/organizations, their representatives and foreign states from jurisdiction of country courts is known as Diplomatic immunity. Diplomatic Immunity, one of the important principles of International Law, states that certain foreign officials should not be subjected to the jurisdiction of local courts and other similar authorities. Art 29 – Art 36, of The Vienna Convention on Diplomatic Relations, 1961 immune diplomatic agents and their family members from all criminal prosecution along with protection from almost all civil law suits. However this immunity is not an absolute immunity and if required, this exemption could be waived from the jurisdiction of the sending State.

Now, in our analysis, firstly we will debate on whether State Alpha can produce sufficient legitimate proof on the very fact of the accusations and allegations so brought against the Diplomats of the State Beta. In the case under discussion, state beta believes that the allegations made against their ambassador and mission staff in state alpha have not been proved and are baseless and thus under the provisions of International law, State alpha must compensate for the loss of repute of state beta. This scenario has created a tension between the two states where state beta is now thinking of resorting to use of force and is not willing to negotiate with state alpha. The stance by state beta regarding the allegations by state alpha seems justified as the allegations are not backed by any solid legal arguments and are made on some assumptions such as the possible transport of cocaine through the diplomatic bag.

As state alpha cannot prove the allegations made, State Beta proceed to take legal actions, with respect to the blatant allegations so framed against them by State Alpha. The Embassy of “State Beta” is inviolable according to Art 22[4], and thus the agents of the receiving state that is “State Alpha” in this case cannot enter the mission premises or the premises missions’ family without the consent of State Beta. Even police intrusion is violation of inviolability. The remedy is only personal non-grata or serving diplomatic relations. In the case of US v Iran[5],where the International Court of Justice upheld the diplomatic mission and the correlative duty of the receiving state to protect the premises, documents and the archives of the mission and personnel. This case was brought in front of ICJ by the United States of America against Iran, in response to Iran hostage, where US’s diplomatic offices and personnel were seized by revolutionaries and thereby violating Art 22. The Court also declared that Iran should restore the US embassy in Tehran to the possessions of the United States, must release the hostages, and afford full protection to the diplomatic officials could be referred as Iran Government’s Agent and therefore acting on their behalf. Now, in this case, state alpha failed to produce sufficient legitimate proof on the very fact of the accusations and allegations so brought against the Diplomats of the State Beta. The newspaper states that the cocaine might have been in to state alpha via diplomatic bag, but since, according to Art 27[6] of Vienna conventions the diplomatic bag cannot be opened or detained, so the accusations are based merely on assumptions and are baseless. Moreover, state alpha was also responsible for providing security to the mission premises, security and freedom of movement to the mission staff and their families even under conditions of war according to Art 37[7] of Vienna conventions. So state beta can now take legal action against state alpha for violations of the Vienna convention, where one of the protesters threw a brick through an embassy window and another protester sprayed “junkie” all over the embassy entrance with paint. In another incident, a group of State Alpha citizens have abducted the ambassador’s son from his school and issued a statement that they will hold him hostage until State Beta agrees to recall their ambassador. These incidents are clear violations of Art 37 of Vienna convention and thus can be challenged by state beta in the International court of Justice.

On the contrary, if the allegations so brought by State Alpha against State Beta are proved beyond reasonable doubt, the Diplomatic Immunity and the Diplomatic Relations under the Vienna Conventions so enshrined under the International Law is still being abused by state alpha as well as by state beta. If State Alpha had reasonable apprehension regarding the same, they should have sought help from the sending state, State Beta, as per Art 1(d)[8]. They must provide protection to State Beta’s interests and their nationals as per Art 1(b)[9] of The Vienna Convention and then proceed accordingly to the rules and norms laid down by the International Law. State Alpha, should have initiated the official communication through the Ministry of Foreign Affairs as per Art 41 (2)[10], instead of encouraging rampant activities as depicted by the Social Media and the general public of State Alpha against the State Beta.

As regards state beta, apart from all the Diplomatic Immunities and Personal Inviolability, the Diplomats are also required to abide by the laws and regulations of the receiving state and not to interfere in the internal affairs of the receiving state, Art 41(1)[11]. As per Art 41(3)[12], the premises so provided by the receiving state should not be used for or held incompatible with the functions of the mission, therefore the Diplomats along with the Ambassadors of the State Beta should have been vigilant and must have sufficient insights regarding activities within the Embassy, so that in case of any allegations as brought by the Media Personnel of State Alpha, they can produce competent evidence to refute such allegations. [13] So the Art 41 (1) and Art 41(3) of the Vienna convention are being abused by state alpha. Furthermore, the allegation of transporting cocaine through the diplomatic bag once proven violates Art 24(7)[14] which explicitly states that “The packages constituting the Diplomatic Bag, must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use. A similar case that caused much stir in International media was reported in 2012, where the Trinidadian authorities found Cocaine in Diplomatic Bags, addressed to Trinidad’s consulates in New York, USA. As this was also a violation of the Art 24(7), the offender, who was not a diplomat nor a Foreign Service officer but an accountant at the mission was charged for a criminal offence.

The outrageous activities on behalf of the protestors from State Alpha over the State Beta’s Embassy, clearly depicts that Diplomatic Immunity for State Beta is at stake in the State of Alpha and the State of Alpha refused to follow the norms and regulations so laid by the Vienna Conventions on the Diplomatic Relations signed in 1961 by 179 states. There are a few possible remedies available for the Diplomats of the State Beta, against such outrageous activities.

The abduction of the Ambassador’s son from his school, by a group of Alpha citizens and then holding him as a hostage also defies Art 27(1)[15], which states inviolability of official communication. UN Convention of the Prevention and Punishment of Crimes against Internationally Protected Person’s including Diplomatic Agents, 1973 confers protection against the Diplomatic Agents as well his family members. That also encompasses protection against murder, kidnapping and violent attack on official premises or private accommodation. The Diplomatic Agents would be responsible for the development of harmonious international relations and will be protected against arrest, harassment, or any other unjustified actions taken against diplomatic representatives.[16] Such an agent is immune from criminal liability in the nation in which he or she serves, but the commission of a crime may result in a recall request to the ambassador's country. In addition, a diplomatic agent is immune from civil lawsuits, except for actions involving estates, when he or she is the executor, administrator, or beneficiary; actions concerning real property held by the diplomatic agent for personal, not official functions; and actions relating to professional or business activities that are beyond the scope of diplomatic duties.[17]On the basis of preceding facts and provisions State beta can request legal actions to be taken against the outrageous protestors of state alpha. A similar incident, known as the famous case of R v Turnbull, ex p Petroff[18] can be related to this particular case, in which throwing of explosives in USSR Embassy in Canberra led the accused to be prosecuted for such alleged offence against the local law.

Conclusion

In conclusion, State Alpha, if they had reasonable doubt after sending an official communication to the Ministry Of Foreign Officials could have simply terminated the diplomatic mission following Art 9[19] of the Vienna Convention and then could have recalled the envoy by Lettre de Recreance, by virtue of which State Beta would not be able to exercise its functions in the State of Alpha anymore.[20] The logical resort now left with State Beta is to send a notification to State Alpha, indicating that the envoy function has come to an end and can thereby end the Diplomatic Mission. They can do this by declaring as persona non grata along with expiration of the letter of credence. However state beta is not willing to negotiate and is instead considering use of military force against state alpha. Now if the military forces were to be used, then state beta must ensure that all the regulations of just ad bellum and jus ad bello are adhered as per the Laws of armed conflict (LOAC)[21]. State beta must justify the use of force in this scenario or else it would be liable to legal implication by the international court of justice. In this present scenario, the international court of Justice needs to intervene and facilitate the solution of this issue with minimum possible chaos. The ICJ must handle the situation in a way through which all violations and violators are brought to justice with the worst possible outcome of termination of mission of state beta in state alpha.




Bibliography

  1. Brownlie (2008) - Principles of Public International Law.

  2. Buergenthal T and Murphy S, Public International Law In A Nutshell (Thomson/West 2007)

  3. Janis, M. & Noyes, 2006. - J. International Law. p. 148

  4. M. N. Shaw, International Law (5th edn Cambridge University Press 2003)

  5. Poole T, 'Sovereign Indignities: International Law As Public Law' (2011) 22 European Journal of International Law

  6. Rafael Domingo Osle, The New Global Law (Cambridge University Press 2010)

  7. The Laws of Armed Conflict (LOAC) [Online: Mar 15, 15] http://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/11/The-Law-of-Armed-Conflict.pdf.

  8. Vattel E, Kapossy B and Whatmore R, The Law Of Nations, Or, Principles Of The Law Of Nature, Applied To The Conduct And Affairs Of Nations And Sovereigns, With Three Early Essays On The Origin And Nature Of Natural Law And On Luxury (Liberty Fund 2008)

  9. Wheaton H, Dana R and Wilson G, Elements Of International Law (The Clarendon press 1936)


[1]

Vattel E, Kapossy B and Whatmore R, The Law Of Nations, Or, Principles Of The Law Of Nature, Applied To The Conduct And Affairs Of Nations And Sovereigns, With Three Early Essays On The Origin And Nature Of Natural Law And On Luxury (Liberty Fund 2008)

[2] Janis, M. & Noyes, 2006. - J. International Law. p. 148

[3] M. N. Shaw, International Law (5th edn Cambridge University Press 2003)

[4] Art 22, The Vienna Conventions on Diplomatic Relations, 1961

[5] [1980] ICJ 1 (24 May 1980).

[6] Art 27, The Vienna Conventions on Diplomatic Relations, 1961

[7] Art 37, The Vienna Conventions on Diplomatic Relations, 1961

[8] Art 1(d), The Vienna Conventions on Diplomatic Relations, 1961

[9] Art 1(b), The Vienna Conventions on Diplomatic Relations, 1961

[10] Art 41(2), The Vienna Conventions on Diplomatic Relations, 1961

[11] Art 41(1), The Vienna Conventions on Diplomatic Relations, 1961

[12] Art 41(3), The Vienna Conventions on Diplomatic Relations, 1961

[13] Brownlie (2008) - Principles of Public International Law.

[14] Art 24(7), The Vienna Conventions on Diplomatic Relations, 1961

[15] Art 27(1), The Vienna Conventions on Diplomatic Relations, 1961

[16]Wheaton H, Dana R and Wilson G, Elements Of International Law (The Clarendon press 1936)

[17] Poole T, 'Sovereign Indignities: International Law As Public Law' (2011) 22 European Journal of International Law

[18] (1971) 17 FLR 438.

[19] Art 9, The Vienna Conventions on Diplomatic Relations, 1961

[20] Rafael Domingo Osle, The New Global Law (Cambridge University Press 2010)

[21] The Laws of Armed Conflict (LOAC) [Online: Mar 15, 15] http://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/11/The-Law-of-Armed-Conflict.pdf.

Comments

    0 of 8192 characters used
    Post Comment

    No comments yet.