Jo Grace R.

Bardaje JD II

Diplomatic Immunity and Remedies against Abuses

“Diplomatic immunity is an international law principle that provides a

framework for smooth international relations between states. It does so by limiting
the degree to which a foreign government acting within the territorial jurisdiction of
another sovereign government (which is the sending state) is subject to the legal
jurisdiction of the other sovereign government (which is the receiving state).” International law
project.

Vienna Conventions recognizes three different types of foreign representatives: Diplomats the one
who represents their home government in international negotiation. Consuls the most protected
group: they cannot be detained, arrested, or prosecuted to any crime, even the law enforcement
cannot enter their residence, the court cannot compel them to attend and be a witnessed in a court
litigation, and their family enjoys the same immunity. Consuls are less protected, they can be
prosecuted if they commit crime, following the legal process the law enforcer can exercise its
power to enter their private residence. On the other hand, members of international organization
may be treated as diplomats or consuls in accordance on their position.

Under the Vienna convention there are two basic rules in enjoying immunity. The first group were
categorized as the natural representatives, to which kings and queens, president and prime minister
of a certain state. Individuals who belong in this category enjoys diplomatic immunity during their
stay in a foreign country.
In the second group are the Diplomats, its obligation is to represent its country in the foreign state.
They are expected to foster cooperation and overall friendly relation with the receiving state. The
diplomatic immunity enjoys two legal immunities: the functional Immunity, it is the shield that
protects the action undertaken by the diplomats that is related to their job from legal proceedings.
Functional immunity is permanent in character and that makes legal prosecution of the responsible
diplomat impossible, even after the person has lost their diplomatic status.
The Second form of legal immunity is known as personal immunity. It is a protection of a diplomat
to everything a diplomat does as a private person in any legal prosecution. However, it only applies
to the highest ranking diplomats, when it does it is absolute. Moreover, in low level offense, like
speeding to serious crimes like human trafficking, the diplomats has its full protection as they
cannot be arrested or be prosecuted and be detained. It also extended to the diplomats’ family so
long that they are in the receiving state. On the contrary, functional immunity is only temporary.
Once the diplomats leave to retire, the personal immunity ends, in this sense, the former diplomat
could be charged with crimes committed as a private person.
The privileged of immunity vested to the diplomats, give an impression that the diplomats can
basically do whatever they want without considering any consequences, which the diplomats failed
to observed. Their job has its significance, anything that a diplomat does, it directly reflects upon
the sending state or their country of origin. Therefore, they are expected to carefully and under
strong pressure to behave in an exemplary manner. However, diplomats misuse this personal
immunity granted to them, the most embarrassing, it is difficult to say how frequent it really is.
Minor offenses like parking violations is fairly common and they are by and large ignored by the
receiving country. Serious crimes like human trafficking however are rare and when they commit
these serious crimes, there are usually consequences in one way or another. Regardless of their
immunity, states do have a remedy when dealing abusive diplomats. One option is by declaring
the diplomats a “Persona non Grata” which basically means “undesirable person.” By taking an
appropriate action, the targeted diplomat is given a span of time, to which he is compelled to leave
the country, usually between a week and 48 hours. However, when the given time has passed, the
diplomat loses any diplomatic status and his diplomatic immunity ends. With this, the host country
can force undesirable diplomats out of the country. However, it is not an assurance to bring the
criminal diplomats to justice. To put the diplomats into litigation, the receiving state may start to
negotiate with the sending state, to simply waive the diplomat’s immunity. In the case “from 2002,
a Russian diplomat is responsible for a deadly car accident in Canada. Russia didn’t waive its
diplomat’s immunity, the latter was expelled from Canada and later faced charges for the crime by
the authorities in Russia.”
In summary, these diplomatic immunities are immense, however, diplomatic immunity goes
beyond the diplomats. It is clear that the idea of immunity is impunity based on the cases related
to diplomatic immunity. As such, legal practitioner can administer justice through diplomatic
immunity for a criminal diplomatic be accountable of the crime he has committed.

Sources:
Anders Henriksen (2019) International Law Markus Krajewski (2017) International Law Stefan
Kadelbach (2013) Zwingendes Völkerrecht Encyclopædia Britannica (2021) Diplomatic Immunity:
https://www.britannica.com/topic/dipl... Vienna Convention on Diplomatic Relations (1961)
https://legal.un.org/ilc/texts/instru... Vienna Convention on consular relations (1963)
https://legal.un.org/ilc/texts/instru... Convention on Special Missions (1969)
https://legal.un.org/ilc/texts/instru...