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

The Ancient Concept Of diplomaticalal Immunity And Relations Across Borders police EssayINTRODUCTION diplomatic electrical resistance is considered as an ancient concept concerning relations across borders. It even dates back to Ancient Greece and Rome. Today, it is a article of belief that has been codified into the capital of Austria Convention on Diplomatic Relations 1961 and this regulates past impost and practices. Indeed, as the ICJ indicated in US v. Iran1, a large number of the provisions of the Convention reflect customary internationalistic 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 privilege and privileges con nones a form of legal opposition and a policy held between governments. This aims at ensuring thatdiplomats atomic number 18 safe in the host press out and that they are non conceivable tolawsuitorprosecutionunder the laws of the receiving State. It is noteworthy to state that at that place is a distinction between an immunity and a privilege only if these are kn give to have been used interchangeably2. 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 hatful be defined as benefits or rights that different persons do not have temporary hookup Immunities can be considered as exemptions from the jurisdiction of the law of the receiving State.3The traditional tasks of the diplomats can be summarised as watchs analytical assessment of the receiving State, nurseion of citizens of the sending State who are subject in the host State and relation building between the two States. However, today, diplomats in addition deal with issues such as the promotion of trade, peace reservation, 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 andlegal activities can be pursued.4It 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 orphic 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 licensed efficiently.5Unfortunately, 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 supply and families of diplomatic officials also enjoy privileges and immunities, in that location were abuses by them also. Hence, members of diplomatic missions and their families are tolerant 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 leftover 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 land 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 reduc e 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 sermon. 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).CHAPTER 1 HISTORICAL ORIGIN AND SOURCES OF police OF diplomatical IMMUNITYModern Diplomatic faithfulness was shaped by events and ideas since time immemorial. According to some authors6, diplomatic immunity existed since the era of cavemen -who would probably communicate with one another(prenominal) 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 diplomatical RELATIONSthither 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.7Finally, there were also theroies which shaped diplomatic immunity (1.1.2).DIPLOMATIC RELATIONS IN THE PASTThe preamble of the VCDR states thatRecalling that peoples of all nations from ancient times have recognized the stead of diplo matic agentsBuilding 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, adjudge 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.8In 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 distant representatives.9During the Renaissance, sch olars and others laid emphasis on the idea that Natural Law gave a strong argument for the protection of envoys during their official utilizations.10The most important principle of the Naturalist doctrine was that of urgency it was necessary to protect ambassadors because of the importance of their functions.11Grotius, a naturalist writer, arrived at the conclusion that immunity was found 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.12By 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 devices13.Certainly, the evolution of diplomatic relations did not stop here. Immunities and privileges develop partly as a result of sovereign immunity and the independence and equality of States.14Further, as there were more and more permanent missions as compared to ad hoc ones, Sovereigns recognised the importance of ambassadors to negotiate and collect information.15In 1815, it is found that Vienna was the first site of a Congress for diplomatic agents. Next, the first international look for to codify the Diplomatic Law was in 1895 with the Draft Convention of the Institute of International Law.16In 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 codific ation could be written.17Eventually, 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 do his official tasks.THEORIES WHICH SHAPED DIPLOMATIC IMMUNITYWith a further step towards modern immunity with the creation of occupier or permanent embassies, three theories were positive and these moulded diplomatic law since the 16th century.18These theories are Exterritoriality, Personal Representation and Functional Necessity. Each played a prominent role during different periods in history.(a) individual(prenominal) REPRESENTATIONThe basis of this opening 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 diplomats 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 requests19.The great theorists of the 16th and 17th century like Grotius, Van Bynkershoek, Wicquefort, Montesquieu and Vattel supported the use of this theory20. In The Schooner Exchange v McFaddon21, the Court held that, by regarding the ambassador as the sovereigns 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) EXTERRITORIALITYThis theory is based on the Roman law principle whereby a man took his own lands law with him when he went to another land22. 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 legally 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 ambassadors house and person are not domiciled in the receiving State, but in the sending State23.In King v Guerchy24, an English Court did not prosecute a French ambassador for an attempt to execute 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 country25. In Taylor v Best26, 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 move Navigation Co v Martin27expressed similar opinions.(c) FUNCTIONAL NECESSITYFunctional 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 function28. 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 involve to be able to move freely and not be obstructed by the receiving State. They moldiness be able to observe and report with confidence without the solicitude of being reprimanded29. 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(prenominal) be free from all coercion in order to fulfil his duties30. Vattel placed the greatest emphasis on the theo ry in order for ambassadors to action the object of their appointment safely, freely, faithfully and successfully by receiving the necessary immunities31.In the 18th century, the Lord Chancellor in Buvot v. Barbuit32declared that diplomatic privileges stem from the necessity that nations need to interact with one another. Similarly, in Parkinson v Potter33, 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 VCDR34Further on 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 adopt 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 stress agreement for the common good. It s provisions marked progression of custom into settled law and resolved areas of contention where practices conflicted35.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 heading reciprocity36which renders each state both a sending and a receiving state.It is to be noted that diplomatic immunity should not be confused with consular immunity37, State immunity, UN immunity38and international organisations immunity39. Importantly, the VCDR focuses only on permanent envoys and does not deal with ad hoc envoys which are covered by another Convention40.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 VCDRBefore 196 1, Diplomatic Law was, to a large extent, customary and it was accompanied by some attempts to codify certain rules41. None of those attempts addressed the landing 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 onerous task of incorporating the concerns of all countries involved in the early sixties and a history dating as far as the first civilised settlements.The ILC call for 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 take consensus on many iss ues. 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 VCDR42.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 VCDR43The 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 missions 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 usual functions of the diplomatic mission such as representing the sending State in another state44.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 LAWApart 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 PROTOCOLSDuring 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 ProtocolConcerning 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 sooner the ICJ. As such, article 1 of that Protocol states thatDisputes 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 THEUN 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 protectinghuman 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 select 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 d eath. 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.45Nations ratifying the Prevention and Punishment Convention make these crimes penal 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 LAWMany 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 trans formed into municipal law. There are, therefore, a number of roleplays 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 Act46which repealed the Diplomatic Immunities Act of 1932 and the Diplomatic Immunities Amendment Act of 1934. In the Republic of Mauritius, the Constitution is the ultimate law of the land47and International Law has no effects without ratification. As such, laws must be passed at parliamentary level, for example, the Consular Relations Act48reflecting the Vienna Convention on Consular Relations 1 963 and the Diplomatic Relations Act49which reflects the VCDR.