A Study of Diplomatic Immunities and Privileges
I.Introduction – A Brief History of Diplomacy
B.Foreign Sovereign Immunities Act of 1976 and Diplomatic Relations Act of 1978
IV.U.S. Policy on Diplomatic Immunity
V.Abuses of Diplomatic Immunities and Privileges
I.INTRODUCTION – A Brief History of Diplomacy
Sadaam Hussein emerged as “public enemy number one” because of his blatant disregard to international law and relations, in his continued hostage hold of U.S. diplomats. As a result, foreign and national security policies had to be enacted to handle the hostile foreign affair. Diplomacy became one of the chief instruments of foreign and national security employed in the Iranian hostage crisis and other international conflicts preceding and succeeding. The history of diplomacy can be traced to the intense diplomatic intercourse between ancient Egypt and its neighbors long before 1000 BC. Not until the twelfth and thirteenth centuries, however, did diplomacy begin to assume its modern form. Rules were developed by the Italian city-states to govern the appointment and conduct of ambassadors, and in 1455, Milan established the first permanent embassy in Genoa. In the sixteenth century, other European states followed the Italian example and appointed permanent ambassadors. Under the influence of sixteenth and seventeenth century writers, such as Hugo Grotius and Alberico Gentili, the privileges of diplomats were more precisely defined and incorporated in international law. The Congress of Vienna in 1815 and the Vienna Convention on Diplomatic and Consular Relations in 1961 and 1963 defined and redefined, respectively, classes of diplomatic representatives. In the twentieth century, consular and diplomatic services, formerly separate, have been merged in many countries, including the United States (1924). Diplomacy is the activity of preventing and solving conflicts by representatives, namely diplomats, of two or more states (nations) conversing on related controversial issues with expectations toward peaceful agreements. The most significant catalyst or mechanism used within diplomacy exists as immunities and privileges. Diplomatic immunity and privilege entails an exemption or freedom from liability or penalty under criminal and national law. Consular agreements, extraterritoriality, impunity and extradition are terms that appear frequently throughout the discussion of diplomatic immunities and privileges. As the established ruling commission over global affairs, the United Nations have enacted legislation concerning the diplomatic relations, including immunities and privileges. Such legislation occurred at the Vienna Conventions of 1961 and 1963, along with the passing of the Foreign Sovereign Immunities Act of 1976. As a super power and democratic nation, the United States plays a pivotal and influential role in the enforcement of immunity statues. Within its national boundaries, the United States follows its policy on diplomatic immunity and privilege, while other nations observe American practices and execute their own policies. Consequently, such freedom granted by diplomatic immunity has resulted in mainstream and high sea foreign cases when diplomats abuse it. What becomes apparent within the study of diplomatic immunity over the last ten years is the dilemma placed on participating diplomatic countries when abuse calls for rule and order and thus, the responsibility needed to be taken by diplomats.
Dating back to the ancient Greeks, a tradition upheld that foreign emissaries traveled under the protection of Zeus. In international law, this ideal form of immunity upholds in current diplomatic relations. Immunity was intended to protect diplomats working in unfriendly foreign countries. As abuse of this exemption system began to occur, once unfamiliar terms grew into commonly used words and practices.
·Consular agreements – the appointment of an official by a government to reside in a foreign country to represent the commercial interests of its native citizens. Consular agreements usually beget global negotiations.
·Extraterritoriality – an exemption from the application of jurisdiction of law or tribunals. Extraterritoriality requires federal judiciaries to determine the territorial reach of federal statutes.
·Impunity – exemption from punishment, penalty, and harm.
·Extradition – legal surrendering of a fugitive to the jurisdiction of another state, country, or government for trial.
Diplomacy exists as one of the most attention-needed issue on the agenda of the United Nations. As an ideal governing body among many countries, diplomacy represents one of the main mechanisms encouraged by the United Nations. Two of the groundbreaking global fellowships occurred at the Vienna Conventions of 1961 and 1963, both of which focused on diplomatic relations. Consequently, the Conferences established and revised rules and regulations in order to govern the issuing of diplomatic immunities and privileges. Although they differ, the diplomatic and consular missions are bestowed similar immunities. In Article 22, paragraph 1 through 3 of the United Nations passed law during the convention, the act sets the two main premises: 1) immunity from search, requisition, legal attachment, or execution; and 2) the duty of the receiving state is to protect the diplomatic missions. In addition, under the consular mission, an exception to the premises may transpire in cases of emergency. Another example of the United Nations developing a precedent in the allotment of diplomatic immunities and privileges concerns official diplomatic documents. Article 24 and 33 states that “records, documents, correspondences, and archives cannot be seized or detained physically; nor can they be used as evidence in legal proceedings. (See Appendix 1, “Comparative Study of Privileges and Immunities of Diplomatic and Consular Missions”). All foreign officials do not receive full immunity. Levels of immunity are granted on the basis of rank and position within the foreign mission. Along with one hundred and sixty nations, the United States agreed to the treaties set during the Vienna Conventions of 1961 and 1963 explaining diplomatic practices, including immunity. Immunity from all criminal prosecution and many civil suits for diplomatic agents and members of their families illustrates the distinct levels of immunity issued. Embassy administrations encompass lesser extents of immunity, and consuls appear at even lower levels of immunity. Immunity only for behavior related to the mission limits service staff of embassies. A country can expel a foreign diplomat whom it considers undesirable by declaring the diplomat persona non grata. Another important law regarding diplomatic immunity came in 1976 as the Foreign Sovereign Immunities Act. The act sets two conditions for the service of process on a foreign state and its agencies, intervention or settlement amongst the two parties. Because the act recognizes sovereign immunity, the process encourages any breach of contract dismissed due to diplomatic immunity. An incident that happened in the early 1990s involved a Zaire mission and the Sage Realty Corporation of New York. After persistent failure to pay its office space rent, $20,000 monthly, Sage Realty brought a civil action suit to evict the Zairian mission. The Zairians appealed to the Second Circuit Court of Appeals, who ruled in favor of the foreign mission on the basis of the Foreign Sovereign Immunities Act. The ruling concluded, “The Foreign Sovereign Immunities Act states that the property of a foreign state in another country shall be immune from attachment, arrest, execution or eviction.” A related act, the Diplomatic Relations Act of 1978, addresses certain securities, common to citizens, that diplomats must take to ensure proper restitution in cases of misbehavior such as purchasing liable insurance for automobile accidents.
A recent form of legislation attempt appears at the 84th plenary meeting of the General Assembly of the United Nations. In 1994, the General Assembly proposed resolution 49/49, which sought more protection for diplomats while on missions in other countries. The resolution “strongly condemns act of violence against diplomatic and consular missions and representatives, as well as against missions and representatives of international intergovernmental organization and officials of such organizations, and emphasizes that such acts never be justified.” While forbidding any insubordination of international law, the proposal requests special tasks from the Secretary General to maintain an accurate account of all conflicts with international law involving diplomatic or consular immunity. (See Appendix 2, General Assembly Resolution 49/49).
IV. U.S. POLICY ON DIPLOMATIC IMMUNITIES AND PRIVILEGES
In the federal system of the United States, the U.S. Department of State, headed by the Secretary of State (currently, Madeline Albright) handles foreign relations and services. Diplomats, trained career officials, help implement U.S. foreign policy by representing the United States in its relations with other countries and with international organizations. The Department of State maintains embassies, consulates, and trade and cultural centers in each country with which they have diplomatic relations. Ambassadors lead each U.S. embassy, and assisted by a staff of diplomats and attaches who have various functions. The political and economic sections report on U.S. developments in the host country. The consular section assists its national consuls living or traveling in the host country with commercial and legal matters and issue visas to local residents who wish to travel to its country. The cultural section promotes the culture of its own country. Diplomats stationed in a foreign country enjoy privileges known as diplomatic immunity. Hence, they are not subject to local civil and criminal laws and encompass the liberty to communicate with the U.S. government. Extraterritoriality allows for U.S. embassy buildings and grounds to fall under American jurisdiction. Similar structures of foreign relations departments appear in many other countries.
Because of its democratic federal government system, the United States faces two major dilemmas, equal treatment and dual nationality. Realizing that large numbers of U.S. diplomats are stationed in many countries with different, less lenient, executive, legislative, and judicial systems, the Department of State cautiously deals with diplomatic immunity. “It makes sense…for us [U.S.] to maintain the practice and law of diplomatic immunity because it protects Americans overseas,” proclaim Nicholas Burns, spokesman for the State Department in a February 1997 issue of Insight on the News. When foreign diplomats positioned in the United States break federal or state laws, immunity must be considered first and foremost, although unpopular among American citizens. Failure to recognize diplomatic immunity leaves the nation open to sanctions by the U.N., and especially places overseas U.S. diplomats in an uncomfortable position to receive maltreatment from the hosting country.
As a nation of mixed cultures and individuals affixed with a racial designation identifying ancestral background as well as American citizenship, dual nationality arises as an issue under diplomacy. Dual nationality presents problems particularly in nations that consider any descendents of their homeland citizens regardless of their current residence. For example, in Vietnam, negotiations affecting the erection of a liaison office between Hanoi and Washington, D.C. were stalled. The intended act was to establish full diplomatic relations between both nation, but Vietnamese officials refused to agree to terms mandating U.S. notification in the matter that an American diplomat must be detained in Vietnam. Assuming the U.S. diplomat would have Vietnamese descent, in its disregard of dual nationality, Vietnam resolved not to grant immunity or respect to U.S. diplomats.
While recognizing its dilemmas, the United States follows a policy when abuse of diplomatic immunity happens. With a breach in federal, state, or local laws, the Department of State takes various steps to rectify the matter. Firstly, the State Department notifies the native country of its diplomat’s misconduct and advises a waiver of immunity to permit the appropriate U.S. court to bring prosecution. If the waiver of immunity is denied, the Department orders for the infinite expulsion of the diplomat from American soil. At times, the home country may try the diplomat within its judiciary. Civil suits against diplomats often are settled through mutual settlements.
V.ABUSES OF DIPLOMATIC IMMUNITIES AND PRIVILEGES (U.S.& abroad)
Indeed, diplomacy offers a preferred solution to international conflict than war. Diplomacy eliminates the mortality and economic costs many countries suffer when engaged in war. However, on a smaller scale, diplomacy, causes its own forms of national disruption. Diplomatic immunity grants beyond even what many national supreme law documents constitutes. Unlike diplomatic immunity, even the U.S. Constitution does not promise freedoms from prosecution after a crime is committed. Abuses of such near absolute freedom occur, in many instances, go unprosecuted, and thus ignites public disdain for international relations. Abuses of diplomatic immunity situate countries in awkward and adverse dual roles. The state or foreign service departments must act in responsibility of their duties to maintain international fellowships, but also, show allegiance to the country in which it serves. Cases of abuse diplomatic immunity and privilege arise abroad and in the United States, each resulting in different outcomes.
·“On July 21, 1994, the District Court (Amtsgericht) of Berlin-Tiergarten issued a warrant for the arrest of S. (name must remain anonyomous), the former Ambassador of Syria to the German Democratic Republic (GDR), on charges of having assisted in the commission of murder and the bringing about of a bomb explosion in West Berlin in August of 1983.” Result: The Court concluded that S. had exercised official duties because he acted according to orders from his government, regardless of its legality in another country. Therefore, he is exempted from prosecution and granted diplomatic immunity.
·“General Augusto Pinochet thwarts a Communist takeover of Chile in the early 1970s and placed the regime in a plebiscite.” Result: The British House of Lords grants an extradition of Pinochet of Chile to Spain to stand trial for “crimes against humanity”. However, Chilean’s democratic government contends Pinochet should be immune from persecution and extradition because he was the head of state at the time.
The United States has also faced many cases of misconduct from foreign due to diplomatic immunity.
·“Gueorgui Makharadze, diplomat from the Republic of Georgia, on January 3, 1997, kills a 16-year old girl when driving at 80 mph sets off a horrific five-car crash that catapults onto her Volkswagen.” Result: Georgian President Eduard Shevardnadze waives his diplomat’s immunity in order for him to stand trial in U.S. federal courts for second degree murder with a sentencing of approximately 20 years.
“In December of 1996, a brawl between New York City’s police and U.N. diplomats results over a traffic accident. U.N. diplomats said to have been drunk, while officers are alleged to have been harassing. In addition, Mayor Giuliani claims diplomats owe excessive amounts of money to the City. Moscow mayor Yuri Luzhkov alleges discrimination and harrassment.” Result: Matter is settled mutually between nations. Because of the uproar, U.S., Russia, and other nations began outlashing one another alleging maltreatment of foreign diplomats.
·“In 1992, Angel Francisco Breard, Paraguayan diplomat, kills an Arlington woman during an attempted rape.” Result: Because of the brutality and severity of the crime, the Virginian government tried and found him guilty. Paraguay officials were not notified of the act, and thus Virginia failed to recognize any diplomatic immunity. The sentencing was death by legal injection. Secretary of State Albright attempts to stay the execution, along with a similar appeal form the International Court of Justice (ICJ). The Supreme Court rules in favor of the state of Virginia (Breard v. Greene), ruling that the ICJ, the U.S. federal government, nor the Supreme Court could not order Virginia to stay the execution. The execution took place on the evening of April 14, 1998 at 10:39pm.
As a result of these occurrences, Congress, in three attempts, have tried to protect the rights of the people of America. In 1995, the Senate, led by Foreign Relation Committee Chair Jesse A. Helmes (R-N.C.), proposed executive withholds of foreign aid to the country of the diplomat who abused his diplomatic immunity or privilege. In 1997, Republicans Representatives form California and Tennessee crafted a proposition to the Department of the State. The proposition entailed the Department to initially attempt an immunity waiver, and if failed, an assurance that diplomats accused of misconduct be tried in their home countries. In 1999, crimes committed by diplomats are addressed in the United States Code of Service under title 22, Foreign Relations and Intercourse, ch. 38, 2728, “…the Secretary of State shall prepare and submit to the Congress, a report concerning diplomatic immunity entitled, ‘Report on Cases Involving Diplomatic Immunity’.”
The intentions and ideals behind diplomatic immunity center on the protection of diplomats for the development and endurance of international relations. Importantly, most diplomats and their countries uphold the laws of the United Nations Vienna Conventions and their succeeding acts. U.S. Code 254 under title 22 illustrates such compliance, “Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention…, or any other laws extending diplomatic privileges and immunities, shall be dismissed.” Nevertheless, abuses of diplomatic immunity disrupt national and international order. Misuses of diplomatic immunity and privileges contradict and undermine the purposes of diplomacy. As diplomats promise to create peace and establish friendly relations with other countries, an allegiance is made concurrently to uphold the laws of the land – the land wherever their mission resides and their foot trods.
A.Comparative Survey of Privileges and Immunities of Diplomatic and Consular Missions
B.General Assembly Resolution 49/49
C.U.S. Code of Service Title 22, Ch. 38, 2728
D.U.S. Code of Service Title 22, Ch. 6, 254d
“And We Are the Law.” The Economist (US). 18 Apr. 1998: 27.
“Bad to Worse.” US News and World Report. 20 Jan 1997: 14.
Bradley, Curtis A. “Breard, our Dualist Constitution, and the International Conception.” Stanford Law Review 51 (1999); 529.
“Consideration of Effective Measures to Enhance the Protection, Security, and Safety of Diplomatic and Consular Missions and Representatives,” G.A. res. 49/49, 49 U.N. GAOR Supp. (No. 49) at 288, U.N. Doc. A/49/49 (1994).
“Fact Sheet: Diplomatic Immunity.” US Department of State Dispatch 4 (1993): 471.
Fassbender, Bardo. “Diplomatic Immunity – Vienna Convention on Diplomatic Relations – Effect on Diplomatic Immunity on States Other Than Receiving State.” The American Journal of International Law 92 (1998): 74-78.
Forbes, Steve. “Like It or Not.” Forbes. 25 Jan. 1999: 32.
Frum, David. “Diplomatic Impunity.” Forbes. 26 Apr. 1993: 110
Gould, Jennifer. “Retaliation in Moscow.” The Village Voice. 18 Mar. 1997: 27.
Jacobson, Louis. “An Undiplomatic Journal.” National Journal 29 (1997): 1045.
Kaplan, Refet and Walden Siew. “Immunity No Longer Means Impunity for Diplomats?” Insight on the News. 3 Feb. 1997: 42-43.
Kubalija, Jovan. “Comparative Study of Privileges and Immunities of Diplomatic and Consular Missions.” DiploEdu (1997): 4 pp. Online. Internet.Available: http://www.diplomacy.edu/courses/DIPLOMACY/topics/privileges/immunity_premises.htm.
Richards, David A. “The Tenant with Sovereign Immunity.” Real Estate Law Journal 11 (1983): 232-240.
United States Code of Service. Title 22. Foreign Relations & Intercourse. Ch. 6. Foreign Diplomatic and Consular Officers. 254d.
United States Code of Service. Title 22. Foreign Relations & Intercourse. Ch. 38 Department of State. 2728.
Whitelaw, Kevin. “When Diplomats Break the Law.” US News and World Report. 20 Jan. 1997: 14.
Wu, Irene. “Identity Crisis.” Far Eastern Economic Review. 5 May 1994: 32-34.
VII.BIBLIOGRAPHY
“And We Are the Law.” The Economist (US). 18 Apr. 1998: 27.
“Bad to Worse.” US News and World Report. 20 Jan 1997: 14.
Bradley, Curtis A. “Breard, our Dualist Constitution, and the International Conception.” Stanford Law Review 51 (1999); 529.
“Consideration of Effective Measures to Enhance the Protection, Security, and Safety of Diplomatic and Consular Missions and Representatives,” G.A. res. 49/49, 49 U.N. GAOR Supp. (No. 49) at 288, U.N. Doc. A/49/49 (1994).
“Fact Sheet: Diplomatic Immunity.” US Department of State Dispatch 4 (1993): 471.
Fassbender, Bardo. “Diplomatic Immunity – Vienna Convention on Diplomatic Relations – Effect on Diplomatic Immunity on States Other Than Receiving State.” The American Journal of International Law 92 (1998): 74-78.
Forbes, Steve. “Like It or Not.” Forbes. 25 Jan. 1999: 32.
Frum, David. “Diplomatic Impunity.” Forbes. 26 Apr. 1993: 110
Gould, Jennifer. “Retaliation in Moscow.” The Village Voice. 18 Mar. 1997: 27.
Jacobson, Louis. “An Undiplomatic Journal.” National Journal 29 (1997): 1045.
Kaplan, Refet and Walden Siew. “Immunity No Longer Means Impunity for Diplomats?” Insight on the News. 3 Feb. 1997: 42-43.
Kubalija, Jovan. “Comparative Study of Privileges and Immunities of Diplomatic and Consular Missions.” DiploEdu (1997): 4 pp. Online. Internet.Available: http://www.diplomacy.edu/courses/DIPLOMACY/topics/privileges/immunity_premises.htm.
Richards, David A. “The Tenant with Sovereign Immunity.” Real Estate Law Journal 11 (1983): 232-240.
United States Code of Service. Title 22. Foreign Relations & Intercourse. Ch. 6. Foreign Diplomatic and Consular Officers. 254d.
United States Code of Service. Title 22. Foreign Relations & Intercourse. Ch. 38 Department of State. 2728.
Whitelaw, Kevin. “When Diplomats Break the Law.” US News and World Report. 20 Jan. 1997: 14.
Wu, Irene. “Identity Crisis.” Far Eastern Economic Review. 5 May 1994: 32-34.
