A CRITIQUE OF DIPLOMATIC IMMUNITY IN INTERNATIOANAL LAW

CHAPTER ONE

GENERAL INTRODUCTION

1.1         Background to the Study

The rule of international law governing diplomatic relations were the product of long-established state practice reflected in the legislative provisions and judicial decisions of national law. The law has now been codified to a considerable extent in the Vienna Convention on Diplomatic Relations. Parts of the Convention are based on existing practice and other parts constitute a progressive development of the law. However, as ratifications mount up even the latter portions provide the best evidence of generally acceptable rules. The convention presently has at least 150 parties. The importance of the principles of law is embodied in the case concerning United States v Diplomatic and Consular Staff in Tehran¹ and judgment of 24^th May 1980². In its judgment on themerits, the court observed that „the obligations of the Iranian Government here in question are not merely contractual –but also obligations under general international law³. In that case, the government of Iran was held responsible for failing to prevent and for subsequently approving the actions of military in invading the United States Mission in Tehran and holding the diplomatic and consular personnel as „hostages‟.

For English courts, the Diplomatic Immunity Act of 1708 was declaratory of the common law. The Act of 1708 has been repealed and replaced by the Diplomatic Principles Act of 1964⁴ which sets out in a schedule those provisions of the convention which are incorporated into the law of the United Kingdom. The same Act replaces Section 1(1) of the Diplomatic Immunities (Commonwealth countries and Republic of Ireland) Act of 1952, which provides for immunity from suit. The Vienna Convention

¹International Court of Justice Reports (1979), p. 19

• Ibid (1979), pp. 30-43

• Ibid

• Empson v. Smith (1960),1 QB 426

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does not affect rules of customary land governing questions not expressly regulated by its provisions⁵ and, of course, states are free to vary the position by treaty and tacit agreements based upon subsequent conduct.

Diplomacy comprises any means by which states establish or maintain mutual relations, communicate with each other, or carryout political or legal transaction, in each case through their authorized agents. Diplomacy in this sense may exist between states in a state of war or armed conflict with each other, but the concept relates to communication, whether with friendly or hostile purpose, rather than the material forms of economic and military conflict.

Normally, diplomacy involves the exchange of permanent diplomatic missions and similar permanent or at least regular representation is necessary for states to give substance to their membership of the United Nations and major inter-governmental organizations.

International law, along with diplomatic immunity is not impose on state but is generally accepted through consensus and reciprocity, on the basis that peaceful compromise must override violent confrontation⁶.

Diplomats ensure that communications between states is made possible. As a consequence they are granted certain immunities to facilitate these function within the state to which they are accredited⁷.

Diplomatic immunity means that foreign diplomats are not subject to the jurisdiction of local courts in respect of their officials and in most instances, their personal acts⁸.

• See the Philippines Embassy Case, ILR 65, 146 at 161-2, 186.

• Hoffman, (2003),“Reconstructing Diplomacy”5 British Journal of Politics and International Relations p.

• Shearer Starke’s, (1994), international law led p. 384

• Hays, (2000), “What is Diplomatic Immunity” is

Diplomatic Immunity.htm[Accessed on 20 may 2005].

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It is against this absolute immunity, that diplomatic immunity is critically examined. It is intended to consider whether diplomats, their staff and families need absolute criminal immunity.

Diplomatic immunity as it is understood today is a function of historic customs which have developed and have been to an extent codified. Diplomatic immunity is moulded around three major theories that originate in the mid 16^th century: personal representation, exteritoriality and functional necessity.⁹ The earliest theory, personal representation dictated that diplomat‟s immunity arose because the diplomat was an extension of the ruler sending him thereby granting him immunity. Exterritoriality dominated in the 18th century, which meant that the property and the person of the diplomat should be treated as though they existed on the territory of the sending State. Functional necessity limits immunities to those functions performed by the diplomat in his official capacity, and is today embodied in the introduction of the Vienna Conventions of 1961 and the UN International Immunities.

A CRITIQUE OF DIPLOMATIC IMMUNITY IN INTERNATIOANAL LAW