State and Diplomatic Immunity

What are diplomatic privileges and immunities?

Immunities means the exemptions from local jurisdiction enjoyed by diplomatic agents in doing
their work and maintaining their dignity as persons representing the sending government.
Diplomatic Immunity is a principle of international law which implies the freedom form local
Jurisdiction accorded to duly accredited diplomatic agents and member of their immediate
household.

At common law, diplomatic immunity first arose as an extension of sovereign immunity. The
inviolability, in theory, of the herald and the flag of truce had been recognized as a practical
necessity from earliest times. As a matter of law, it was the consideration that the sovereign’s
dignity and independence must be preserved that gave protection to his diplomatic agents. In the
sovereign’s own person, the issue was unlikely to arise and therefore be put to the test. His
dealings with other countries were before the days of state commerce, conducted through his
representatives. These representatives would, while in the foreign state, in the course of their
duties, be involved in some matters that would be susceptible to civil or even criminal litigation.
It was therefore found necessary that the diplomatic agent, while holding that position, be
accorded the same immunity as the sovereign. The privilege of the diplomatic agent is to have
his person sacred and free from arrests, not of his own account, but on account of those he
represents. The foundation of this privilege is for the sake of the prince by whom an agent is
sent.

The sovereign’s personal immunity at common law is total. It is an extension of this fact that
immunity may be accorded to entities of sovereign status. However the immunity of states may
be subject even at common law to exceptions, for instance, in transactions of a commercial
character. A case in point is the security contracts between Kenya and a Dutch company which
brought a case before the court of permanent arbitration in the Hague recently.

The sovereigns personal immunity extended to immunity from being indirectly impeached. It is
from this immunity of the sovereign that the immunity of his diplomatic agents arose. His
immunity included his wife and children if still under his parental control and his diplomatic
entourage – the staff under him. Similarly the entourage of the diplomatic agent share his
immunities. These provisions do not relate to the sovereigns’ position with regard to immunity
for acts performed in his private capacity such that whereas a sovereign enjoyed complete
immunity at common law, his immunity for acts in private capacity have proven difficult to fall
within the restrictive doctrine set out in the VCDR, 1961

Vienna Convention on Diplomatic Relations, 1961.

The VCDR is universally regarded as embodying binding international legal rules on diplomatic
intercourse between states. Before the VCDR, 1961, there had been no codified rules regulating
diplomatic relations. However various attempts had been made. These attempts include, the
Vienna Regulations of 1851, the Havana Convention of 1928, the Resolution of the institute of
international law of 1929 and the Harvard Draft Convention of 1932. None of these were as
comprehensive as the VCDR, 1961 which convention has facilitated other conventions such as
the New York convention on the prevention and punishment of crimes against internationally
protected persons, including Diplomats, 1973. The UN headquarters agreement with
Switzerland and the UN headquarters Agreement with the United States of America, both of
1946, had existed before the VCDR, 1961.

The administration of Articles 1 to 3 as straight forward. Article 4 however becomes difficult to

administer because it requires the sending state to seek agreement only for the head of mission
and military attaches. The sending state need not seek agreement of the receiving state for other
diplomatic agents. This posed questions in the UK following the shooting of a British Police
Woman, Yvonne Fletcher, form the Libyan Embassy in London on 17th April 1984. This
incident led to the severance of bilateral relations. The UK foreign Affairs Committee of the
House of Commons in its report of January 1985 regretted the fact that the sending state could
freely appoint its diplomatic agents and urged the foreign office to find out as much information
as it could possibly can about prospective diplomatic agents. But this is difficult in advance
because governments are not compelled to seek agreement. The committee urged the foreign
office to limit the size of a mission to the appropriate numbers of diplomatic agents. If this were
to be done, it would elicit the principle of reciprocity.

Articles 5 to 8 are straight forward. Article 9 gives a state the right to regard a diplomat as not
wanted “Persona non grata” without obligation to give reasons. Governments often times misuse
this provision where no reasons are given for the determination of a diplomat as persona non
grata. This shortcoming has resulted in reciprocity by governments.

Article 10 requires sending states to notify the receiving state of staff appointments. It raises the
question when do immunities and privileges commence. Is it on a diplomats arrival or is it on
notification of the foreign office. A case to illustrate is that of a Nigerian implicated in the
kidnapping of Umaru Diko, a fugitive Nigerian former Minister. The Nigerian argued that he
had a diplomatic passport so therefore entitled to immunities. The UK argued that although he
had been issued with a diplomatic entry visa for one month, the foreign office had not been
notified of his arrival.

Article 11 on size of the mission is tricky. The question as to what size is reasonable and normal
is to be determined by the receiving state. In the early years of resident diplomacy, problems
were experienced because the prestige of a state was proportional to the magnificence of its
diplomatic mission. No rules about size had existed then so provisions of article 11 are relatively
recent.

Under article 12 a state must seek consent of receiving state to establish offices in locations way
form the mission itself. Article 13 to 19 deals mainly with maters of protocol, such as the
presentation of credentials, precedence. Article 20 entitles the heads of mission to use his states
flag and emblem on the premises of the mission, residence and means of transport. While the
flag may be flown in a public building where the ambassador has his office or residence, it would
certainly not include public transport or even a borrowed / rented car. But the right would cover
a private jet or chariot or boat.

Article 22 on the inviolability of the mission has been put to a lot of test as it is not outside the
provisions for the local authority to enter such premises to put out fire form a gutting embassy
building. The biggest test was when Iranian students seized the U.S Embassy in Tehran on 4th
November 1979 and held 63 American diplomats for 444 days. The international court of Justice
ruled on 15th December 1979 that Iran should restore the Embassy premises back to the U.S and
release all the hostages since they were entitled to privileges, immunities and protection. The
Iran government resisted but through the intervention of Algeria as mediators, the Iran
government saw the indefensibility of their actions under international law concerning diplomats.

The exemption from payment of taxes covered in articles 23 only refer to official fees and
charges of the mission and not to service charges such as airport service fee. Article 41 imposes
obligations on the diplomatic agent to respect the laws of the receiving state and not to interfere
with its internal affairs. The mission is not expected to use the premises in any way incompatible
with the proper functions of the mission or rules of general international law. The diplomat is
subject to the laws in the receiving state save for the laws that specifically exempt him, such as
taxation. The diplomat’s immunity from most legal process is not an exemption from liability.

Article 42 forbids the diplomatic agent to practice for personal profit in the receiving stat only
professional or commercial activity. However, a diplomat’s family does not appear to be so
forbidden. However should a diplomatic agent engage in activities which would attract civil
and / or criminal suits he would not be immune for any professional or commercial activity – see
article 31(i) C.

With so many shortcomings why shouldn’t the VCDR be reviewed to curtail immunities and
privileges. The UK Foreign affairs committee in its paper in 1985 noted that any, attempt to
alter the fabric of the Convention would most likely cause chaos.

Privileges and Immunities for International Organisations.

The emergence and prominence of the United Nations and other regional international
organisation in international relations since the mid last century has also meant that officials of
such organisations enjoy privileges and immunities. The nature and scope of their immunities
and the way they function in practice, however, seem to be a separate subject from diplomatic
immunities. Article 104 and 105 of the UN Charter provide that the UN shall have the necessary
legal capacity in the territory of its members to carry out its functions and shall have “such
privileges and immunities as are necessary for the fulfillment of its purposes”.

To spell this out, the UN General Assembly adopted the General Convention on the privileges
and immunities of the United Nations 1946 and the convention on the privileges and immunities
of the specialized Agencies, 1947. The convention on the representation of states in their
relations with International Organisations was adopted in 1975. Most members have acceded to
these conventions. The US has however not acceded to these conventions and instead regulates
such maters under the agreement between the US and the UN concerning UN Headquarters.

Switzerland and Kenya also have headquarters agreements with the UN to cover the UN
premises and activities in those countries. Immunities her as in immunities extended to sovereign
state’s diplomatic agents survives on the grounds of real contemporary usefulness, that is, theory
of functional necessity.

Diplomatic Immunity, Principles, Practices and Problems

Winston Churchill said on one occasion that while he had no objection to inequality, he disliked
privilege. The subject of diplomatic immunity has been very much alive because of the tendency
of regimes, especially revolutionary regimes, to condone or participate in the routing of the rules
of diplomatic immunity, as laid down in the Vienna conventional on Diplomatic Relations, 1961,
an international agreement accepted by international community. Examples include;
 The violation of the U.S Embassy and the taking of hostages in Tehran after the Islamic
Revolution by Ayatollah Khomeini came to Power in 1979.
 The exploitation of diplomatic immunity to escape prosecution for various non
diplomatic activities such as wrongful parking, the misuse of the diplomatic bag,
premises or status.

The essence of immunity is reciprocity. This means that one state accords to the diplomat of
another assurance as to inviolability of person, premises and correspondence and immunity form
local jurisdiction provided its own diplomats are treated similarly.

Immunity from jurisdiction does not signify that a diplomat has the right to break laws of the
receiving country. On the contrary the V.C.D.R stipulates that “ It is the duty of all persons
enjoying such privileges and immunities to respect the laws and regulations of the receiving
state”. Given widespread abuse of privilege, much discussion has taken place and imagination
has focused on the idea of revising the convention. But the way to deal with the abuse of
privilege is to enforce more strictly the provisions of the convention. For instance, as regards
diplomatic bags, the British government has invoked “the overriding right of self-defense” to
Justify opening a bag if they think that its contents might endanger national security. On parking
offences, diplomats who continuously flout traffic laws/rules of the host country should be
declared “personal non grata”. The public also remains indignant over what it regards as the
justifiable privilege of diplomatic immunity.

Why are they needed in Diplomatic practices. Why do governments accept them. Are
privileges and immunities useful.
Immunity is in practice generally recognized to be necessary for a diplomatic agent to function
effectively. The actual categories in which the diplomatic agent should not be constrained
include – movement – he cannot be arrested nor summoned to court.

Property use – There should not be any entry into their offices/residence nor taxation for the use
of such property. By extension includes their automobiles/cars.
Their communication – This is sacrosanct because their work requires such access.

These immunities rest on a long tradition of usage, specific bilateral agreements, multilateral
conventions of recent decades and also court judgments. Diplomatic immunities have their legal
complexities. Because they are not actually enforceable. This is because no sovereign state can
be forced to pay a fine for violating a diplomats immunity. Rules for diplomatic immunities and
privileges which are among the oldest examples of international law, are firmly entrenched in
practices, treaties and municipal legislation. Considerations of reciprocity give power full
support to maintaining the customary and treaty status of diplomats.