INTRODUCTION: -
2. Waver of immunity - Waiver of immunity is rarely given in
international law and when the immunity of a Diplomat is waived, it is a
declaration by sending state that the Diplomat is no longer immune to the
Jurisdiction of the receiving state. There is provision for waiver in Vienna
Convention and the waiver at all times is expected to be express. The Case of Public
Prosecutor V Orhan Omez 43 indicates that waiver of immunity in
civil Jurisdiction does not mean waiver of immunity from execution, the waiver
of immunity from execution is given separately and it must also be express. An
incidence where an American embassy staff’s husband was suspected of gross
indecency with a minor, here immunity was returned to the U.S.
It is
through the instrumentality of Diplomatic and Consular Agents essentially that
sovereign states seek to promote amity amongst themselves. These governmental agents enjoy certain
immunities and privileges. In the
current trend of international relations, efforts are geared towards
co-operation and interdependence of the subjects of International law
irrespective of their political, cultural or other differences.
Restrictive
immunity rather than Absolute immunity can be categorized in three or more neat
subdivisions, namely:
(a)
Sovereign Immunity
(b)
Diplomatic and Consular Immunity
(c)
Immunity of other categories of person and
organization.
Sovereign Immunity: There is a need to briefly
consider each of the immunity in order to know what immunity is all about. Sovereign immunity entails that no state
shall exercise jurisdiction over another state without its consent and this is
best expressed with the maixm par in parem non habet imperium but
the principle of international concern in my opinion had made nonsense of
sovereign immunity, the current imbroglio between Iraq
and America
is a crystal testimony of this. It
indicated that sovereign immunity anywhere in the world is not absolute
especially where there is a need for international concern.
DIPLOMATIC AND CONSULAR IMMUNITY
On 1st December
1967, sixty five states were parties to the Vienna Convention on Diplomatic
Relations which was adopted on 14th April 1961 and entered into
force on 24th April 1964 and Nigeria was one of the states that
consented to the Convention as at 1st December, 19672.
Diplomatic agents enjoy
immunity from jurisdiction of court, and their properties and official
correspondence are inviolable. Diplomatic bag shall not be opened or detained3. Diplomats are representatives of their
countries and indeed stood as a direct substitute for the sovereign.
In 1984, there was breach of
the diplomatic immunity by British Government when Nigerian Diplomats in London were among the
seventeen (17) arrested in connection with Umaru Dikko unsuccessful abduction
and this consequently led to the breakdown of diplomatic relations between the
two countries when the diplomats in both countries were declared personal non
grata4. Diplomats and Consuls
are the representatives of the sending state to the receiving state; they must
therefore be accorded the full dignity of the sovereign state.
Immunity of other categories of persons and International Organization
The extent of immunity
enjoyed by International Organizations is uncertain, but practice shows that
treaties in most cases regulate it, however, there is a general Convention on the
privileges and immunities of the UN5. A state enjoys complete immunity from legal
process. Other international bodies that
enjoy diplomatic privileges whom notices
and orders were
made include the United Nations, special UN Agencies e.g UNICEF, ICJ, UNESCO,
and WHO.
1.
The proceedings of the Vienna Conference are contained in United
Nations Conference on Diplomatic Intercourse
and Immunities, official records, Vol 1 & 2 (1961) and 1962.
2.
Article 27 of Vienna Convention on Diplomatic relations 1961.
3.
Daily Times, July 12, 1984, center page.
4.
Okeke N.O. Ibio P. 63.
The word “Immunity” is
defined as an exemption from a specific provision of local Law (e.g. Immunity
from taxation) and immunity is not meant to benefit individuals personally; it
is meant to ensure that foreign officials can do their jobs. Immunity is an
exception from a duty, liability, or service of process6.
It is a shield from
liability in the course of job performance.
In this paper, I will focus only on the topic. Consular and Diplomatic
immunity.
Diplomatic immunity is a
form of legal immunity and policy held between governments, which ensures that
diplomats are given safe passage and are considered not susceptible to suit or
prosecution under the host country’s law7. The word Immunity connotes the idea of
freedom from normal legal process8.
The immunity of a diplomatic
agent from the jurisdiction of the receiving state does not exempt him/her from
the jurisdiction of the sending state.
The diplomatic immunity of an agent involves freedom from the
application of local laws of the receiving state with respect to conducts,
which ordinarily would attract the intervention of the law. For instance, a diplomatic agent is free from
an order of the court. He enjoys freedom
from arrest by police officers. Even when the act of a diplomatic agent
ordinarily constitutes a crime, the agent is free from arrest. Freedom from normal legal process is intended
to provide a suitable environment for the proper performance of the duty of a
diplomatic agent9.
5.
Bryan A. Garner: Black’s law Dictionary (2004) 8th edition
P. 765.
6.
Michael Hardy. Modern Diplomatic law Manchester University Press page
9.
7.
Osawe Alice Amechi; A critical appraisal of the concept of Diplomatic
Immunity in International Law
page 16.
8.
Ibid, Osawe, Alice Amechi Page 16.
Diplomatic Mission and Staff
The diplomatic mission
consists of group of diplomats, the mission gives cohesion and organic unity to
the acts of the individual over the years.
To facilitate the administration of its function, individuals are
employed and put in place to man different designations in the mission office.
The personnel of diplomatic
missions are divided into diplomatic staff, administrative, technical, and
service staff10.
Diplomatic staff
This cadre of personnel
includes all those of diplomatic rank, which include the head of mission,
counselors, diplomatic secretaries and attaches.
The administrative and
technical staff
They consist of the clerical
assistants, the archivists, wireless technicians and much more.
Service staff.
They consist of drivers,
receptionist, and maintenance men, those in the domestic service of the
mission.
Jurisdictional Immunity
The above-mentioned staff
need certain form of immunity in order to perform their functions at the
mission office. Amongst these immunities
necessary are immunity from jurisdiction, inviolability of the private
residence of a diplomatic agent, his paper, correspondence and proeprty11
and much more. However, in this paper our focus will be on immunity from
jurisdiction of consular and diplomatic agents, relation and staff. The receiving
state has a duty to ensure that the mission is not subject to constraint, and
is indeed actively protected in the exercise of the means available to it for
the performance of its tasks.
9.
Article 1 (c) (f) (g) Vienna
Convention of Diplomatic Relations 1961
11.
Ibio Article 30 (2).
In ensuring the safety of the mission and its staff, the receiving state must ensure that its own agents do not infringe the inviolability of the mission and the immunity conferred is primarily, though not exclusively procedural in character. In the first instance, it does not exempt the Diplomats from observing local laws12. It was opined in the case of Dickinson V Del Solar13 that Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction. In the second instance, it ensures the protection of the mission against acts of interference by private persons.
In ensuring the safety of the mission and its staff, the receiving state must ensure that its own agents do not infringe the inviolability of the mission and the immunity conferred is primarily, though not exclusively procedural in character. In the first instance, it does not exempt the Diplomats from observing local laws12. It was opined in the case of Dickinson V Del Solar13 that Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction. In the second instance, it ensures the protection of the mission against acts of interference by private persons.
In my discussion of consular
and diplomatic immunity from jurisdiction, more light will be shed on criminal
and civil jurisdiction: -
The Court basically, is the
sole determinant of the individual entitled to diplomatic immunity and when
this is brought to court in respect of a particular offence, two questions may
be formulated.
(a) There is need for degree of proof that the diplomat is entitled
to the privilege claimed and in the case of immunity from jurisdiction, the
immunity must be conferred on the diplomat ab initio before he can be exempted
from legal process or liability. The
practice varies from country to country, for example, a diplomat who commits
traffic offence in the United State of America may be arrested but the
onus lies on the diplomat to show that he is entitled to privilege by
self-identification. The court in many instances may seek the advice of the
executive arm to clarify the immunity status of a diplomat. In order to be at safer side, a certificate
is normally issued to a diplomat by the foreign office of the receiving state
indicating the readiness of the government to recognize and or continue to
recognize the official status of the person involved.
12.
Article 41 paragraphs 1 of
Vienna convention of 1961.
13.
(1930) 1KB P. 376
In the case of Engelke V
Musmann14 Lord Phillimore stated in the case that “The
certificate is not a piece of hearsay evidence but a statement of what the
foreign office has done”.
The certificate issued by
the foreign office will prima facie show the authenticity and recognition of
the diplomatic status of the person to whom it is issued.
(b) The legal consequences of a successful claim must be determined
by court. A successful claim to immunity
must be determined in a final ruling by court looking at the local law and the
immunity afforded the claimant as well as the effect of any judgment given
elsewhere relating to the diplomatic agent concerned15.
There is a need to
distinguish Consuls from Diplomats for better understanding of the title.
CONSULS
Consuls like Diplomats
represent their state in another state, but unlike Diplomats, they are not concerned
with political relations between the two states. A state may appoint in the
territory of others with the express or tacit consent of the latter consuls who
shall there represent and defend their commercial and industrial interests and
render to their nationals such assistance and protection as they may need. It
is traditional for the Consul to be recognized only after having presented his
commission and obtained the exequatur of the state in whose territory he is to
serve. The exequatur may however be withdrawn by the receiving state but must
have previously make attempt to obtain from the sending state his recall thus,
the exequatur can be withdrawn in urgent cases.
14. (1928) ACP. 433 at P. 45.
15. Ibid Michael Hardy Modern Diplomatic law P.
55.
A person therefore ceases to
be a Consul upon
(a)
Notification to the receiving state of the termination of his authority
by the sending state or
(b)
Termination of the consent of the receiving state, that is, by
withdrawing his exequatur which is
tantamount to declaring a diplomatic envoy a personal
non grata; or
(c)
Extinction of the sending or the receiving state16.
Vienna Convention on Consular relation of 196317
grade consuls as follows:
(a)
Consul General
(b)
Consuls
(c)
Vice Consuls
(d)
Consular Agents
Consuls are strictly
speaking not diplomats; they do not usually fulfill diplomatic function and
they are resident officers whose primary duties are to protect the commercial
interest of the sending state. The
consent of the receiving state is expressed in the form of an exequatur earlier
mentioned for the purposes of promoting trade and helping businessmen to
establish contact with other businessmen in the receiving state among other
things. Inter-countries relation either
for political reasons or commercial purpose is an act of foreign policy which
is indissolubly bound up with diplomacy.
Diplomacy is the most important instrument of a state’s foreign policy.
It serves solely the aims of foreign policy and in a large measure
predetermines the limits and ways for the employment of other instruments in
foreign policy18. Foreign policy is the sum total of the state’s
aims and means of intercourse with other states and nations. It has its own
specific features and forms of implementation.
16. Havard Research
Draft Convention on the Legal position and functions of consuls 26 A.J.I.L (1932) Supp. 189)
17. Article 9.
18. Diplomatic
Dictionary, Vol 1. Moscow
1960 P. 457
Nevertheless, it is
organically bound up with domestic policy of the state19. Accordingly, all states subject to mutual
consent between the states concerned send and receive consuls which explains
the smooth working of rules of consular immunity due to the principle of
reciprocity involved. Nigeria after
independence acceded to the Vienna Conventions on Consular Relations in 1963.
NIGERIA CONSULAR AND DIPLOMATIC LAW
At independence in 1960, the
Diplomatic Immunities And Privileges (Common Wealth Countries and the Republic of Ireland) 20.
After independence, Nigeria acceded to the Vienna conventions on Diplomatic and Consular
Relations in 1961 and 1963 respectively. The Diplomatic Immunities and
privileges Act of 1962, gave effect to the relevant provisions of the two Vienna conventions in Nigeria law. The Diplomatic
Immunities and privileges (Amendment) Act 21 amended the 1962
Act.
Under International law,
treaties and conventions signed by states are binding on the states that are
signatories to the treaties and conventions only and the states must respect
the agreement (pacta sunt servanda). Some states in addition may
promulgate the Treaties and Convention into local Act. In my opinion, the local
legislation is binding on the citizen as objects of international law while the
treaties and conventions are binding on the states that are parties’ to the
conventions as subjects of international law.
It is a jus congen
that must be observed without breach having been parties to it. In this
situation, Nigeria
had reduced the Conventions into local legislation.
The Act consolidated all the
previous laws on diplomatic and consular relations in the country, i.e. the
Diplomatic Immunities And Privileges Act and the Diplomatic Privileges
(Extension) Act.
19. Okeke, CN Op C.t P. 55.
20. OP Cit.
21. 1974
Before the coming into force
of the two Vienna Conventions on Diplomatic and Consular Relations, state
practice tended to differ much but this has significantly stabilized since the
emergence of the Conventions 22.
INSTITUTION OF HONOURARY CONSULS
Consuls proper are usually
distinguished from Honorary Consuls. The appointments of Honorary Consuls are
not permanent, that is it is temporary in nature compare to regular Consuls.
The position attracts no remuneration and they work on part time. Honorary
Consuls unlike proper Consuls are untrained; their appointments are based on
their high proven integrity.
INVIOLABILITY OF CONSULS
The official residence of
the consuls and places used for the consulate’s offices and archives are
inviolable and in no case shall the local authorities enter them without the
permission of the Consular Agents, neither shall they examine nor seize under
any pretext whatsoever, documents or other objects found in a consular office.
No Consular Officer shall be required to present his official files before the
courts or to make declaration with respect to their contents. A consular office
shall not be entered by the police or other authorities of the territory
provided such office is devoted exclusively to consular business except with
the consent of the Consular Officer. The consent of the consular officer shall
be presumed in the event of fire or other disaster or in the event that the
authorities of the territory have probable cause to believe that a crime or
violence has been or is being or is about to be committed in the consular
office. The provision of consular inviolability is not applicable to a Consular
Officer, who is a national of the receiving state, or who is not a national of
the sending state.
22. Okeke
C. N. OP Cit page 56.
A Consular Officer or
employee shall be entitled to refuse a request from the courts or authorities
of the territory to produce any documents from his archives or other official
papers or to give evidence relating to matters within the scope of his official
duties. Such a request shall however be complied with in the interests of
justice if, in the judgment of the Consular Officer or employee, it is possible
to do so without prejudicing the interest of the sending state. A Consular
Officer is also entitled to decline to give evidence as an expert witness with
regard to the laws of the sending state.
In Mexico (Mallen
Claim) v United States where Mexico alleged that the United States is
responsible for illegal acts of an American Officer including an unwarranted
arrest, lack of protection, and denial of justice in both trails relating to
the assaults by Franco, deputy constable in United States against Consul
Mallen, a Mexican national sent as Consul to U. S. A. The Mexico state made the claim on
behalf of his national against U.S. A. claming damages for compensation and
satisfaction in the amount of $200, 000
with interest. The commission decided that an award may properly be made in the
amount of $18, 000. 00 without interest, Nielsen,
U. S. A. Commissioner, concurred, observing in part “I
think that international law undoubtedly secures to a consular officer the
right to perform his functions without improper interference”
A Consul needs protection of
the receiving state and must be treated with dignity and respect and his
official quarters are inviolable. Treaties however have often expressly
forbidden the use of consular offices as places of asylum. The Havana Convention On
Consuls of 1928. Provides that; “consular are obliged to deliver, upon the
simple request of local authorities, persons accused or condemned for crimes
who may have sought refuge in the consulate”.
CRIMINAL JURISDICTION
Diplomats enjoy absolute
immunity from the criminal jurisdiction of the receiving state. Diplomats
should not be arrested or detained as stated in Article 29.
“He shall not be liable to
any form of arrest or detention. The receiving State shall treat him with due
respect and shall take all appropriate steps to prevent any attack on his
person freedom or dignity”23.
In any case of mistake in
the arrest of a Diplomat they are to be released immediately their identity is
ascertained.
Cecil Hurst on the position
of France,
state that the requirement that diplomatic agents should be exempted from
Criminal jurisdiction has been observed with exceptional strictness. There is
no precedence in which a diplomatic agent was made subject, within his consent,
to the criminal jurisdiction of the receiving state 24. Where
there is serious violation of the Law by Diplomat for example, in case of
murder, espionage etc, the receiving state may opt to declare the offender
persona non grata, the implication is that he should leave the country and
failure to do so after the declaration may cause his arraignment before a court
of competent Jurisdiction. In essence, except there is a waiver of immunity, no
criminal action can be taken against a Diplomat and the family members of
Diplomats are entitled to the same privileges and immunity as are accorded to the
Diplomats.
23. Vienna Convention
on Diplomatic relations 1961
24. International Law,
the collected paper of sir Cecil Hurst 1950 p. 217.
IMMUNITY FROM CIVIL AND ADMINISTRATIVE JURISDICTION
The Vienna Convention
provides that Diplomatic Agents are immune from civil and administrative
Jurisdiction25 the privileges extend to their family members.
Family members of Diplomatic Agents are immune from civil and administrative
Jurisdiction. They have same privileges as the Diplomat himself, however, if
they are Nationals or Permanent resident of the receiving state they are not
accorded such immunty26. The private servants of Diplomatic
Agents are only accorded privileges and immunities only to the extent admitted
by the receiving state. The state is however expected to exercise its
jurisdiction in such a way and manner in which it would not interfere with the
exemptions of the functions of the mission27.
EXCEPTIONS FROM IMMUNITY FROM CIVIL AND ADMINISTRATIVE JURISDICTION
(a). Real Property - Jurisdiction immunity of Diplomats does
not extend to properties owned by them and not by the mission for its purpose
in their private capacity in the receiving state.28 A
Diplomat who involves in action relating to succession will not enjoy immunity
from jurisdiction where he is involved as a private person whether as an
executor, administrator, heir or Legatee29
(b) Initiation of proceedings - Diplomat has Civil and administrative
immunity from jurisdiction but this does not deny them of the right to have access
to the courts of the receiving state as a potential plaintiff. The approach of
the diplomat to court is not tantamont to a waiver of jurisdiction. It is
unlikely that defendant in a suit instituted by Diplomat might want to claim
immunity. This was resolved in Vienna
convention. “Where a person benefiting from jurisdictional immunity initiates
proceedings, such action precludes him from invoking that immunity in respect
of any counter claim directly connected with the principal claim.”30
25. Article 31
26. Article 37(2)
27. Article 37(4)
28. Article 31 (1) (a)
29. Article 31 (1) (b)
30. Article 32 (1) (2) of Vienna Convention
When a Diplomat accepts the
jurisdiction of the receiving state in initiating proceedings in court, it is
total so as to include the settlement of dispute in all stages closely linked
to the basic claim. This will include production of document and the tendering
of evidence as far as it is necessary in the determination of the case.
(c) Professional and Commercial activities – A Diplomat is
said to be employed for that purpose alone and is not expected to take part in
any action outside the course of his duties as buttressed by Vienna convention
that no Diplomat may act in a professional or commercial capacity for personal
profit outside his official functions31. When a diplomat
engages in professional and commercial activities outside his official
functions, he may be excempted from Immunity.
Consular immunity was
guaranteed in Vienna Conventions on Consular Relations32a
Consuls have direct link with foreign ministries with the primary duty of
protecting the commercial interest of the sending state. Apart from this
function, a Consul also renders assistance to Sea man of the Merchant Marine.
They assist in the execution of notorial acts, the issuing of passport, the
registration and solemnization of marriages.
Consuls were traditionally
concerned with the functions enumerated earlier but today, consular functions
have grown to cover all manner of governmental activities such as supervising
treaty implementations and the implications they have in the relationship
between the states where proper representation are not made in case of default.
Articles of the Vienna Convention On Consular Relations32b
spelt out the above enumerated functions.
31. Article 31 (1) (c)
32a. 1963
32b. 1963
It is important to state
that the Consul derives his authority from exequatur and not from his
Commission. The commencement of his consular functions dates from the exequatur
and not from his commission thus, recognition may become an issue if a Consul
is taken to court upon issue outside his Consular functions. However, if a
person is recognized as a Consul by the receiving state though no exequatur has
been issued, this recognition may be conveyed to the court, which may also
recognized him.
A person may act as Consul
and Diplomat and perform both functions33and enjoy diplomatic
immunity. Consul who does not act as a diplomat in the contemporary world may
enjoy the same immunity as Diplomats where there is agreement based on the
principle of reciprocity. Consuls may import articles for their personal use
free from duties; they are also immune from criminal and civil jurisdiction of
the act or duties.
In kasenkina case34
–Mrs. Kasenkina, a Soviet citizen teaching at the school in New York had been
arrested by Soviet Consul and detained in Soviet Consulate office pending her
return to Soviet Russia. Soviet Consul General was served with a writ of
Heabeas Corpus that Mrs. Kasenkina be produced in New York Supreme Court the following day.
The Service of the writ was protested; Soviet Ambassador in Washington said it
is “Entirely in admissible assumption” as contained in the writ “that the
Consul General of the USSR could detain and imprison a citizen of the country
which he represents, is incompatible with dignity of the Soviet Consulate, the
necessity for the observance of which derives from international custom and the
norms of international law”.
33. Article 3 paragraph 1:
Vienna Convention on Diplomatic Relations 1961
34
Preuss in 43
AJIL (1949) 39 – 40, 44n
The following day, Mrs. Kasenkina jumped from a third –
story window of the consulate in an effort to escape and avoid being returned
to soviet Russia.
New York police officers entered the Consulate
General premises and inspected Mrs. Kasenkina’s room and the room from which
she had jumped, Seizing a letter, which was later returned unopened, Soviet
Government protested that New York police had “violated the
extra territoriality of the building of the Consulate General of USSR in New
York”. In reply, the
Department of State exonerated the New
York police, characterizing their action as “entirely
proper”. Since the inspection had been carried out by agreement with and in the
presence of Consul General Lomakin. U.S. government refused to release the
woman to Soviet authorities and America authorities refrained from bringing
charges of kidnapping or unlawful imprisonment against Consul General Loma kin
but the president revoked his exequatur and he was asked to leave the country
because his “conduct constitutes an abuse of the
prerogatives of his position and a gross violation of the internationally
accepted standards governing the conduct of foreign officials”.
The Soviet Union there upon notified the United States of her intention to close her
consulates in New York and San
Francisco and asked the United
State to close her consulate in vladivostok 35.
It is well settled that a Consul has no general immunity
from either the civil or criminal jurisdiction of the receiving state. The
person of the consul is however inviolable and this inviolability extends to
his official quarters and archives. He also has the right to free communication
with nationals of the sending state.
35. D. S. Bull,
xix, No 478 (August 29, 1948) 251
Certain countries grant limited excemption from taxation and
custom duties. In Engelke v Musmann 36, the appellant was
sued for arrears of rent than he moved to set aside the writ on the ground that
he was Consular Secretary in the German embassy and hence subject to consular
immunity. The respondent replied that consular functions do not involve
immunity and sought leave that the appeal was taken. On appeal, the A. G.
informed the Court that he was instructed by the foreign office that the
appellant was a staff of the German embassy and was recognized by the British
Government without reservation. The court of appeal upheld the Judge in Chamber
and then the appeal was taken to the House of Lord. The A.G. formally
intervened, the House of Lord held that the executive statement was conclusive
and refused to embark upon any analysis of the appellant actual status. It is
clear therefore that express confirmation and pronouncement of the sending
state that immunity accorded a Consul General shall extend to other officials
of the Consulate, then the immunity shall therefore not be questioned. That is,
executive statement is a conclusive attestation of immunity granted to a
particular officer. The immunity will only hold sway while performing official
duties. The essence of immunity is to allow consular officers to perform their
duties judiciously.
It must be noted that in a state where the sending state has
full diplomatic representatives, the consul has no direct communication with
the head of state of the receiving state but can link the government through
Ministry of Foreign Affairs. Where there are no full representatives. Consuls
can assume the role of diplomats and communicate directly with the receiving
state Head of State, if authorized by the sending state.
36. 1928 AC 433
In summary, Consuls enjoy immunity as earlier stated in
these five areas.
(a) Criminal
Process: - Consuls are not liable to arrest or detention except in the case
of grave crime, their exequatur can be withdrawn or put under surveillance
pending the time they will leave the receiving Countries.
(b) Inviolability
of premises: - The official premises of a consul cannot be extended or
broken into without the consent of the consul as in Kasenkina’s case 37
Despite the wrong step of the Consul General of soviet Russia, the New York Police officers entered the
Consulate Generals room with agreement and in the presence of the Consul
General.
(c) Inviolability
of person: - Consuls must be protected from attack in whatever form and
their freedom and dignity must be well protected.
(d) Civil
Process: - Due to official acts
of a consul, a consul is not liable to be sued 38. A writ
cannot be served on him in respect of official duties as in Engelke V
Musmann39 in respect of writ served on the appelant, which was
later set aside because of consular immunity.
(e) Taxation: -
Consuls are excempted from taxation
on their official income and not from taxation on income derived on property
held by a consul. He is also excempted from custom duties and consular
properties are usually exempted from taxation. Consular employees enjoy this
excemption only in respect of articles imported at the time of first
installation 40.
37. Supra
38.
Article 43 Vienna Convention on Consular relation 1963
39.
Supra
40. DPO Connell, Int Law for Students, London Steven & Son
(1971) P. 372
CLASH BETWEEN DIPLOMATIC
IMMUNITY AND HUMAN RIGHTS
This part of seminar paper
concentrates on instances where there are apparent clashes between these two
important sets of international rules i.e. diplomatic immunity law and human
rights. An attempt is made to isolate the areas most affected by that collision
and to ask which one, if any, is superior to the other. Theoretical
consideration needs to be placed on reciprocity in diplomatic relations and
this in turn suggests that purely hierarchical grading is neither practical nor
desirable.
Diplomatic immunity &
human rights: A brief history
Diplomatic immunity is
firmly based on long history of supporting state practice. The 1961 Vienna
Convention that codified existing customary diplomatic law, resolved some
points of conflicting state practice and introduced other rules. As a result,
diplomatic law is currently based on a well-received multilateral treaty as
well as old customary law.
International human right
rules offer a different story. Until the beginning of this century,
international concern with human rights issues was more or less confined to
warfare law and slavery. The radical shift in international attitude to human
rights law largely came about as a result of the Second World War. The adoption
of the Universal Declaration and series of follow-up with rights-specific
multilateral treaties rapidly established the prominence of international human
rights law. Hence, international human rights law is a relatively new creature
created by various treaties signed mostly during the second half of this
century. Today, the two sets of rules in question are soundly based on treaty
law.
Conflicting elements between
diplomatic immunities and human rights: prevention, punishment and remedy: A legal norm that is a part
of a coercive system essentially establishes a legal duty and in its connection
to the violated party, it in turn becomes a legal right. Legal norms provide
for coercive acts as sanctions for violation of legal duties and legal rights.
A coercive legal order principally seeks prevention of and retribution for
one’s interference in the sphere of interests of the other. On this reading,
international law is not essentially different from domestic legal systems.
Turning to the subject matter of this seminar paper, human rights may be
safeguarded by preventing their violation in the first place by adequate
punishment of violators and by providing for a satisfactory remedy.
In the human rights context,
prevention primarily relates to removal of structural obstacles that are at the
root of injustice. From this standpoint, identifying structural obstacles to
justice is as important as dealing with violations. Since diplomatic immunity
shields accredited persons against domestic jurisdiction, it practically
interferes with the intended operation of the coercive legal order. The
presence of immunities also entails a deficit in relation to the second
function of sanctions within the coercive legal order: retribution. The idea of
retribution lies at the heart of the social technique called ‘law’. Thus, one
way of solving the problem in the context of human rights is to change
diplomatic law so that violations will carry sufficient punishment to satisfy
the principle of retribution.
Another problem arising from
the operation of diplomatic immunities is that the wrongdoer cannot be coerced
to pay compensation to the victim for his unlawful action. The apparent lack of
that third safeguard, namely, the adequate remedy for victims of human rights
violations committed by accredited persons, present a strong case for reform.
To repeat, potential
collation between the two set of rules, diplomatic law and human rights is not
restricted to the inability of a host state to punish the protected wrongdoer
but also relates to the lack of effective prevention before the wrong is
committed and to the inability of the receiving state to ensure satisfactory
remedy.
Human rights versus diplomatic immunity: Some examples of
collision.
One manifestation of the inescapable link between human
rights and serious abuse of immunities is the relationship between violence and
human rights in general. For example, one commentator suggested that acts of
violence have in common the ‘effect of intimidation (such acts) etymologically
and tautologically cause the individual to fear being in physical harm and
extreme anxiety’. Looking at specific human rights principles in the light of
past incidents involving alleged abuse of immunity may be indicative of the
type of situations in which immunity directly clashes with basic human rights.
(i)
Right to Life
The April 1984 killing of a
British Police constable and the wounding of eleven Libyan dissidents outside
the Libyan Embassy in London
is one example of a clash between right to life and diplomatic immunities.
First, the unidentified persons who allegedly fired at the victims through the
windows of the embassy could not be prosecuted and punished by the British
legal system. Likewise, the alleged lawbreaker could not be forced to
compensate the victims’ families. Finally, though difficult to assess, the
knowledge that diplomatic immunity is available might have induced the shooter
to shoot in the first place. In other words, the Libyans’ entitlement to
diplomatic immunities possibly diminished the important element of deterrence.
After nine days of negotiations during which their wives were reported to have
made final shopping trips to London’s big
departmental stores, the 30 Libyans in the embassy were escorted to the airport
and boarded a Libyan airliner to Tripoli.
(ii) Slavery
Many recent instances of
diplomatic slaves have been reported where some have been forced to work
interminable hours every day, seven days a week, for little or no wages, made
to sleep on floors and eat table scraps and sometimes beaten or sexually
abused. Their passports were withheld by their masters as insurance against
escape.
In one reported case, a
Bolivian servant was kept as a virtual prisoner by an Egyptian diplomat
stationed in the US.
She was made to work seven days a week and never received a penny. The diplomat
who denied her medical treatment when she developed a severe disease causing
bleeding and infections kept her passport.
In another case, a Filipino
maid has accused a Jordanian diplomat and his wife of mistreating her, making
her work endlessly for 50 cents an hour, locking her at their Virginia home, and hiding her passport and
belongings so she would not escape.
In contrast, where
diplomatic immunity is not available, justice can be done and human rights are
respected. This is illustrated by the story of two women kept as slaves in the London home of a princess
from the Kuwaiti royal family. One of them told the police that she was
‘whipped, kicked, beaten and starved’. The Princess then claimed diplomatic
immunity to which she was not formally entitle. to. In February 1985, she was
sentenced to six months in prison, suspended for two years and was ordered to
pay $2, 000 in fines, cost and compensation to the maids.
(iii) Security of the Person
The victim of the Brazilian
ambassador’s son (1982) shooting in a Washington
night club never fully recovered from his wounds and underwent psychiatric
treatment. In another incident, the Mexican ambassador to the UN smashed the
window of a car belonging to a New
York City man and pointed a gun at his head because
the man had parked for five minutes in a space reserved for diplomats. No
charges were brought against the ambassador.
In yet another case, a
visitor to Georgetown’s
entertainment district attempted to stop a stranger-who was later identified as
a secretary to the Italian Military Attaché – from harassing a 16-year-old
girl, the stranger then attempted to run him down in a car. The police,
intending to charge the man for assault with a deadly weapon, had to release
him.
(iv) Rights of the child
Article. 19 of the
Convention on the Rights of the Child demands inter alia, that all appropriate
measures be taken by state parties to protect children from all forms of
physical and mental violence.
In one case, a 9-year-old
child of an attaché of the mission of the Republic of Zimbabwe
was sent to a foster home after his school officials noticed that he was badly
bruised and battered. The child was reported to have been hung by the ankles
and beaten, then cut down so he fell on his head. The Convention on the rights
of the Child also provides that the best interests of the child shall be a
primary consideration in all actions concerning children.
In a recent case, a US diplomat in London
pleaded diplomatic immunity after whisking his two daughters to the US despite the
English High Court ruling that granted custody of the children to his German
wife. The diplomat refused to bring the girls aged 10 and 13 back to Britain. The English Appeal Court,
clearly unhappy with the immunity plea stated that: it seems surprising that a
country which is a signatory to the Hague convention on the wrongful removal of
children and child abduction should be able to escape the ordinary operation of
the convention by claiming immunity.
(v) Conflict Resolution
The fundamental question is
whether diplomatic immunities should prevail even where a violation of human
rights has been established, or, on the contrary whether human right ought to
be safeguarded even if it means the curtailment of diplomatic and consular
immunities.
Under the traditional
approach, diplomatic immunities were upheld by virtue of the long standing
practice of according immunity to diplomats and representatives of states.
However, the debate for upholding human rights would question the scope of
diplomatic immunity. That is, in other words, immunity should cover only ‘acts
performed in the exercise of official functions’. Moreover, rights protected
under the constitution ought to prevail over diplomatic immunities since a
constitutional rule has superior legal status when compared to treaty rules.
There will always be the
need to distinguish between the infringement of fundamental human rights such
as right to life, physical integrity and human rights of a different nature,
but this is not a problem unique to the situation as it relates to diplomatic
and consular immunity but rather, a general one which will require a necessary
degree of flexibility in finding and balancing response under international and
domestic law.
The occasional abuse of
diplomatic immunity led some writers to propose several reforms aimed at
preventing or minimizing future abuse.
Certain Acts can never be
considered as part of the Diplomatic Function.
Since the underlying theory
for diplomatic immunity is functional necessity, any given act for which
immunity is claimed should be necessary for conducting the diplomatic function.
It is further asserted that violations of human rights cannot, by any standard,
be considered as a part of the diplomatic or consular function, and thus
neither can be considered an official act. This idea has been clearly expressed
in the British foreign affairs committee report where it was stated that it
goes without saying that terrorism or other criminal activities can never be
justified by reference to these diplomatic functions.
When diplomats act in fact
as terrorists, they should not be considered as diplomats at all, hence must
lose the benefit of those immunity that diplomats are entitled to. However, an
impediment arises because the diplomatic community views immunity as a
pre-condition for effective conduct of diplomacy in certain countries. Without
it, they say diplomats and their families are vulnerable to all sorts of
pressures in foreign countries. The argument that diplomatic immunity be
according only to important missions has failed in its entirety because it
would be impossible to distinguish between those diplomats who need immunity
and those who don’t.
Immunity as mere Expression
of Sovereignty
That argument is a
straightforward one: It is an established law that sovereignty or domestic
jurisdiction is no bar to the obligation imposed on every state to stand for
the protection of fundamental human rights. Immunities are just an expression
of such sovereignty so, it logically follows that they too cannot impede the
protection of human rights.
This approach unlike the
functional immunity view essentially addresses the representational theory.
Even a state’s borders cannot affect its human rights obligations so why should
its representatives in foreign lands be immuned? This view is however subject to
criticism because firstly, it appears to underestimate the continuing strength
of domestic jurisdiction. Secondly, it neglects to seriously consider the
reciprocity factor. In short, this approach tends to overlook functional
necessity for immunities in the general sense rather than in the act-specific
sense.
ABUSE OF DIPLOMATIC
IMMUNITIES AND PRIVILEGES AND AVAILABLE REMEDIES
There
are several cases of flagrant breaking of local laws as against the provision
of the Vienna Convention as stated herein under
1. Rape: On the 8th and 12th of January 1981, a
26 year old media buyer for an advertising agency, and a lady simply named
Carol were raped and assaulted with a knife respectively. The rapist was
discovered to be Manuel Ayree, the son of the Ghanaian third attaché to the
United Nations. There was nothing the police department could do but to release
the boy. The state department informed the Ghanaian ambassador that Manuel
should leave the country within 24 hours or else, he and his entire family will
be declared persona non grata. All efforts by the Victims to claim redress was
to no avail since the assailant was the son of a diplomat and therefore claimed
immunity.
2. Over Speeding: - The Zairian ambassador to France, Ramazim Baya travelling at
100km/h in a 45km/h Zone knocked down Raphael Lenoir and Ronal Leharted with
his car. They later died from the injuries sustained. The ambassador apologized
and explained he was speeding in order to meet up with the appointments he had
with President Mobutu Sese Seko of Zaire. The angry residents were
furious when they learned that Baya was protected from prosecution by
diplomatic immunity. Patrick Lenoir, Raphael’s father demanded that Baya face
the Charges against him and 5, 000 people demonstrated in support of his
demand. Baya’s immunity was later waived at his requests41.
41. Time Magazine December 16 1996
3. Drug Dealing: - A
man in possession of two kilograms of heroine was caught on 24th of
February 1985, it was given to him by a man who claimed to be a diplomat representing the
Zambian mission as a third Secretary. On request the diplomatic status of the
diplomat was waived by Present Kaunda of Zambia.
AVAILABLE REMEDIES IN CASES OF ABUSE
1. Recall: The
receiving state may request the sending state to recall a Diplomatic Agent
found to have committed a crime. In the famous Umaru Diko incidence in 1984,
the then High Commissioner in Britain,
Major General H. Hannaiuya was recalled
on request by the British government. The Nigeria
government also retaliated by requesting that the British High Commission to Nigeria be
recalled for consultation42. As an indication of a country that
violated international law, Countries may also recall their envoys in that
particular country. For example, after Ken Saro Wiwa was hastily executed in Nigeria
by Abacha Junta, several countries recalled their envoys to register their
protest against the violation of international Law as regards humans right.
Amongst these countries are, United State of America,
South Africa, the United Kingdom, Ireland,
Greece, Denmark, Italy,
Belgium, Holland,
Luxembourg, Spain, Norway,
Australia and Canada, France,
Germany.
2. Waver of immunity - Waiver of immunity is rarely given in
international law and when the immunity of a Diplomat is waived, it is a
declaration by sending state that the Diplomat is no longer immune to the
Jurisdiction of the receiving state. There is provision for waiver in Vienna
Convention and the waiver at all times is expected to be express. The Case of Public
Prosecutor V Orhan Omez 43 indicates that waiver of immunity in
civil Jurisdiction does not mean waiver of immunity from execution, the waiver
of immunity from execution is given separately and it must also be express. An
incidence where an American embassy staff’s husband was suspected of gross
indecency with a minor, here immunity was returned to the U.S.
42.
The Daily Times, 6 July 1984
P. 1
43.
87 ILR P.212
3. LETTER OF PROTEST: - The
receiving state may register its protest to the sending state by seeking for
redress or reparation. In United State Diplomatic and Consular Staff in Tehran Case. The United State
of America in a strongly
worded letter wrote a letter of protest requesting for the release of her
citizens and reparation by Iran.
The hostages were released in January 1981.
4. NOTIFICATION: Through the ministry of foreign
affairs of the receiving state, a notice of reservation may be registered with
the Sending state.
5. BREAKING DIPLOMATIC RELATIONS: The diplomatic relation can be severed by the
receiving state as a result of abuse of diplomatic privileges. An instance of
this is British – Libya
case. The shooting of a policewoman through the window of the Libya embassy in London
led to the breaking of diplomatic ties between Libya
and Britain.
6. PERSONA NON GRATA: - Where
there is a breach of criminal law and crime committed by a Diplomat for
example, in an act of espionage, rape and infliction of deliberate physical
harm, the receiving state may declare the Diplomat persona non grata if the
sending state has not waived the immunity of the Diplomat. Failure of the
diplomat to leave within a stipulated time will render him liable for
prosecution by the receiving state.
Legal reforms:
re-negotiation of the 1961 Vienna
Convention
A typical reaction to
flagrant abuses of diplomatic immunity is to argue that re-negotiation of the Vienna convention seems
to be most logical step to prevent future abuse. A number of reforms have been
proposed and they vary from restricting the scope of immunity to carrying out
an inspection of the diplomatic bag.
In this regard, some
proposed amendments focus on limiting diplomatic immunity to all or some
accredited persons so that it will apply only to official acts or other limited
categories of conducts. The personal immunities of administrative and technical
staff and perhaps those of families should be restricted. The appeal of this
proposal lies in the fact that a very high percentage of crimes committed by
protected persons is attributed to low ranking officials and dependants.
In the arena of
problem-specific amendments, one specific proposal concerns the inviolability
of the diplomatic bag. Following the Libyan embassy and Dikko’s incidents, the
British considered an amendment that would provide for compulsory opening of
the diplomatic bag upon request following reasonable suspicion or return of the
bag to its point of origin. Indeed, the existence of weapons of mass
destruction – nuclear, chemical or biological – does raise serious concern
about state terrorism and possible abuse of the diplomatic bag. However, both
the British government and the House of Commons committee clearly rejected the
amendment as a solution due to practical difficulties.
It was thought that securing
amendments to the Vienna convention in
accordance with proposals of the UK and like-minded countries would
be virtually impossible. Other proposed amendments include the removal of
personal immunity after participation in acts of state terrorism and withdrawal
of the inviolability of the diplomatic premises if used for acts of state
terrorism. Like the bag search proposal and for similar reasons, all these
ideas have been strongly rejected.
Unilateral domestic measures
Abuse of diplomatic immunity
sometimes leads to loss of faith in the international system as a whole and
calls for unilateral measures in the form of domestic legal reforms to tackle
abuse. In 1987, Republican Senator, Jesse Helms proposed amendment to US
domestic legislation requiring the investigation and prosecution of diplomats
for serious criminal acts including ‘any crime of violence, drug trafficking,
reckless and drunk driving and the altering of the definitions of the family
members and diplomatic bag.
Later, a more modified
proposal was introduced titled, Diplomatic Immunity Abuse Prevention Act.
The bill was approved by the Senate but rejected by the House of
Representatives. Another proposal called for immediate waiver of immunity &
immediate expulsion of Diplomats committing serious crimes and requiring
liability insurance for foreign missions. This bill passed in congress in 1998
merely requires the state department to prepare an annual list of Diplomat’s
accused of committing crimes and asserting diplomatic immunity. Evidence from
American and British government sources clearly opposes any significant, or
indeed any domestic or international modification of the Vienna Convention.
Prevention of abuse of immunity and violation of Human
Rights
A number of mechanisms are
available in order to prevent abuse of immunity and violation of human rights
by accredited persons. Preventive measures can be taken through the rigorous
application of the Vienna
convention.
These measures include:
* Stricter appointment notification procedures on staff of
diplomatic missions
* Limiting the size of missions
* Scanning and weighing the diplomatic bag
* Limiting the extent of mission premises
* Announcement of greater readiness to declare persona non
grata even in cases of serious civil claims and persistent unpaid parking
tickets. In France between
November 2003 and 2004, there were 2,590 cases of diplomatic cars caught
speeding by automatic radars, China
alone had 155 violations. In January 2006, it was reported that, in London,
that diplomatic immunity had been used to avoid paying millions of pounds in
traffic fines, as well as dodging around GBP1 million in local rates although,
some embassies have agreed to settle their bills. Logic dictates that even the
potential threat of persona non grata declaration contributes towards prevention
of abuse.
* The ultimate sanction and prevention measure available for
governments is the severance of diplomatic relations. Such preventive measures
do not seem incompatible with international law and may be seen as a genuine
attempt to reduce the risk of abuse.
* The doctrines of self defense and self preservation are also
available to states in order to prevent human rights abuse. The main problems
are that such actions are likely to be expensive, involve divergent rules and
likely to be tainted with distrust on the part of the sending state as well as
possible hostile attitude in the receiving state.
Punishment for abuse of immunity and violation of human
rights.
It
has been argued above that states are by no means powerless in preventing abuse
of diplomatic immunity and violation of human rights. Nevertheless, violations
will continue to occur as it is unreasonable to expect that the whole
world-wide diplomatic population consisting of many thousands of normal human
beings will remain flawless. Upon the occurrence of abuse whether or not a
human right violation, receiving states have several options.
* First, it is possible to conclude in advance, a bilateral or
regional treaty providing for compulsory waiver of immunity or compulsory prosecution
in the sending state.
* The receiving state can request waiver of immunity from the
sending state.
* A third option is post-immunity prosecution that is,
prosecuting the alleged offender after his assignment has been terminated.
* Fourth, The declaration of persona non grata in itself,
though not a perfect punishment for human rights violation, is not without
punitive value.
* Fifth, abuse of diplomatic immunity involving a violation of
fundamental human right may be seen as an international crime suitable for
trial by an international criminal tribunal. However, there are various
obstacles to such a solution, including the diversity and international crimes
and their various levels of reception. It may also require the amendment of the
Vienna Convention to that effect.
* Perhaps the most promising approach for peacefully resolving
disputes where none of the above mentioned mechanisms have worked (that is in
cases of continuing disagreement) is amendment of the Vienna Convention to
require compulsory arbitration.
Remedies for Victims of abuse of diplomatic immunity
It has been argued that amendment of the Vienna Convention
to permit civil liability is less likely to obstruct the performance of a
Diplomat’s duties. It does not limit the Diplomat’s freedom of movement and
would not trigger retaliation by the sending state. However, allowing civil
lawsuits against protected persons might be perceived by the sending state as a
‘host-state-supported obstruction’ of Diplomats functions.
* Special compensation fund – The idea of an international
fund designed to compensate the victim of diplomatic wrongdoings is an
attractive one but its administration will require much international
cooperation as well as admittance of fault on the part of the sending state.
Furthermore, to make payment from an international fund, some faults would have
to be found by an international mediator. It is the duty of the receiving state
to ensure that adequate reparations are made when her citizens are suffering
the consequence of law adopted for the larger good. Some states already follow
that path. For example, innocent victims of diplomatic immunities’ violations
in the UK
have access to criminal injuries Compensation Board.
* Compulsory Insurance – Liability Insurance schemes can
reasonably be expected to afford adequate compensation to victims. The victims
can directly assert because the insurance company is liable and appears in
place of the Diplomat and the immunity defense is circumvented. At the same
time, there is no need for international agreement and diplomats remaining
protected. Sending states might require similar insurance but that in itself,
does not seem to create a serious difficulty and may even be desirable.
Financial consequences for a Diplomat as a result of retaliatory measure of
this kind is not equivalent to reciprocal measures risking their well-being. At
bottom, establishment of compensatory mechanisms of that type constitutes a
risk worth taking.
* Arbitration – interstate arbitration has been defined by the
ILC as a procedure for the settlement of disputes between states by a binding
award on the basis of law and as a result of an undertaking voluntarily
accepted. The idea of compulsory arbitration has been suggested by some members
of the ILC during the Vienna Convention draft preparations but was not
included. Apart from being impartial, and highly flexible arbitration offers a
number of advantages to all states.
* Arbitration can be effective where a large number of claims
must be settled, preferably in a confidential manner. For example, where abuse
of diplomatic immunity violated the human rights of numerous persons.
* Once a compromise (arbitral agreement) has been reached,
there are generally no preliminary stages but only one phase: merits.
* Arbitration allows for appointment of specialist in the
disputed field, in this case experts on diplomatic law and human rights.
* Unlike the ICJ, private persons or corporations can be
parties in international arbitration if its terms provide so. Arbitration can
therefore accommodate the possible wish of victims to be directly involved in
their claim.
* Since parties to arbitration retain more control over
various matters (e.g. composition of tribunal, formulation of the question to
be submitted to arbitration, the law to be applied etc), it reduces the
uncertainty surrounding every prospective international case.
* Arbitration offers at least to some extent, protection
against loss of face as well as the possibility of using the third party, the
arbitrator as a scapegoat.
* Arbitration is usually faster than the procedure before the
ICJ.
* Perhaps most important, arbitration gives the parties time
to reflect on the dispute and its consequences. It provides some distance from
enraged sometimes manipulated public opinion and therefore cools things down’.
* Arbitral solutions can generally produce in the parties a
sense of being treated fairly where a too-strict application of the law would
be less practical, less pragmatic, and less persuasive.44
All told, no device, arbitration or other can completely
guarantee satisfactory remedies for victims of human rights violations by
accredited persons. But the arbitration mechanism, if adopted, may well improve
their position.
Suggested recommendations and change in the Vienna
Convention can be entrenched further but the question that demands answer is
what happens when a crime was stage managed and well hatched to implicate an
innocent Diplomat and the Diplomat was declared persona non grata as a result
of the crime to get him out of the receiving state because of his integrity and
volatile response to issues.
In Comparison with trite principle of criminal Law that an
accused is presumed innocent until proven guilty. I suggest that government of
the sending state should not be too hasty in condemning their envoy if they are
not certain that the offence was actually committed by the envoy. They should
have their own investigation unit in the embassy to update the crime committed.
In the case of M.C. Waddington45 the son of a Chilean charge
d’ affairs at Brussels,
was accused of murder. His immunity was however waived by the Chilean
government but he was acquitted after trial.
Postings to foreign missions are based on politics instead
of qualification. Posting of envoys should be merit. When a square peg is in a
round hole, it will cause embarrassment. The diplomat’s renumerations should be attractive and enough to dissuade
them from engaging in criminal activities. A diplomat peddling cocaine through
diplomatic bag will be making a lot of money but this will not be necessary if
he is well paid.
44. Sangeetha Mugunthan ,Diplomatic immunity in the context of
International Human Rights. Legal service
India.com
45. ICT Report
1980 P. 3
Sending
State must be eager to waive immunity of Diplomat for any grave crime to act as
deference to others and it is a fair way of proving the innocence of the
diplomat if he has not committed the crime, the truth will be revealed during
trial of the diplomat.
If
there is no waiver for the diplomat, then he should be made subject to the laws
of the Sending state and the reason for the termination of appointment should
be published and this can be incorporated in the Vienna Conventions.
Lastly, diplomats with long
years of service should be given priority when there is consideration for
posting of envoys and credence must be given to his integrity and honesty.
CONCLUSSION
It may be concluded that two
sets of international rules, human rights and diplomatic immunities, sometimes
conflict. Contemporary international law does not seem to provide a clear
answer as to the question of priority between them. Even if one assumes that at
least theoretically, human rights law prevails, that assumption quickly runs
into trouble when it encounters the very real reciprocity factor underlying the
whole body of diplomatic law.
In the past, a number of
radical solutions have been proposed. These proposals included introduction of
amendments to the Vienna Convention and amendments to domestic laws. Such
radical proposals suffer from serious defects. The abuse of functionally based
immunities calls for functionally based remedies. In reality, the vast majority
of accredited persons carrying out important and sometimes risky task, do not
abuse their status. When they do, that abuse is almost always of minor
character. States are not powerless in the face of occasional or more serious
abuses.
Means of prevention range from firmer application of
existing rules – including expulsion and severance of diplomatic relations – to
the ultimate act of self-defense. The latter is rather useful for the
protection of fundamental human rights in extreme cases. Similarly, states are
not powerless in their attempts to punish human rights violators protected by
immunities. There is some evidence pointing to a possible change of attitude
towards greater readiness, on the part of sending states, to waive immunity.
Other routes including post-immunity prosecution and prosecution in the sending
state may also be available. Compensation of victims does not seem to be a
large scale problem. All in all, no legal system is perfect and there will
always be cases destined to lead to deterioration of relations between the
receiving and the sending state. But even in such cases, victims need not find
themselves without adequate remedy.
Over the past twenty years, not only has there been a large
increase in the total number of missions sent between different countries,
there has also been a sharp rise in the number of personnel employed at all
levels in individual missions. This pose the problem of protection; at times
discrete surveillance may be considerable. The principle of reciprocity is one
of the problems of immunity; State ‘A’ may not have the mechanism for protection
and security like State ‘B’. The question is can the treatment of diplomats and
consuls in receiving state be commensurate with the one extended to their
counterparts in sending state?
If it is
possible in this conclusion, I suggest that the size of the mission should be
fixed by mutual agreement because the protective ability of the receiving state
must be within their capacity.
In many
cases, whatever action meted out to the envoy of one state by the government of
a receiving state will be carried out against the envoy of the receiving state
in the sending state. This inadvertently creates an unending circle.
REFERENCE
1. Okeke C. N.:
The theory and practical of international Law in Nigeria, fourth Dimension Publisher (1986).
2. The
proceedings of the Vienna Conference are contained in United Nations Conference
on Diplomatic Intercourse and Immunities, Officials record, Vol. 1 & 2 (1961 &
1962).
3. Daily Times of
12th of July, 1984 Center Page.
4. Bryan A.
Garner: Black Law Dictionary (2004) 8th Edition.
5. Michael
Hardly: Modern Diplomatic Law, Manchester
University Press (1968)
6. Osawe Alice
Amechi: A Critical Appraisal of the concept of Diplomatic Immunity in International Law.
7. Harvard Research
Draft Convention on the Legal Position and Functions of Consuls 26 A.J. I.
L. (1932)
8. Diplomatic
Dictionary, Vol. 1, Moscow
1960.
9. D.P.O.
Connell, International Law for student, London Stevens & Son (1971).
10. Time Magazine
December 16 1996
11. Vienna Convention on
Diplomatic Relation 1961
12. Vienna Convention on
Consular Relation 1963
13.
International Law, the collected paper of Sir Cecil Hurst (1950).
14.
Sangeetha Mugunthan;Diplomatic Immunity In the context of International
human Rights-Legal Service India.com