Does diplomatic law really protect? Part two
Updated on 07 August 2022
This is the second blog post in a series looking at diplomatic law, privileges and immunities. The blogs are written by Diplo lecturer Alan Franklin in follow-up to his 20 May webinar. In case you missed it, Part one looked at breaches of the VCCR and VCDR in relation to interception of communitcation.
Is the protection afforded by the VCDR and the VCCR intended to be absolute, or subject to qualifications and exceptions?
In order to answer this question, we should first consider the conventions themselves. The Preamble to both conventions contains the following similar wording:
VCDR – Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States
VCCR – Realizing that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States
This provides us with an important ‘clue’ regarding the intent of the protections afforded to consular and diplomatic officers. The purpose is not to benefit them directly but to ensure that their ability to function is not hampered by the receiving state, particularly in regard to the state bringing criminal charges against a diplomat or consular officer which would impair their ability to function, or by allowing civil suits that would similarly hamper their ability to function.
However, at the same time, the purpose of these immunities is not to permit such officials to commit crimes in the receiving state, or to commit civil wrongs such as breaches of contracts, negligence, improper business dealings, etc. with impunity. Therefore, it can be argued that the Conventions and the domestic law regarding immunity need to provide a balance between these two competing values. Much of the criticism levelled at the Conventions is based on an absolutist viewpoint that sees the Conventions as allowing officials to commit crime with virtual impunity, without any balance between the two competing values.
As cases related to these issues arise, the domestic courts of the related state are required to interpret the Conventions (or the legislation which implemented the Convention – see the third blog in the series which will be posted next week and will examine whether treaties are enforceable as domestic law in the domestic courts of a country).
Each court therefore has the opportunity to decide whether to interpret those immunities as absolute protections, based upon the fairly clear wording of the Conventions, or to interpret the immunities based upon the Preamble and the concept that the immunities exist not to protect the individual diplomat but to protect the state.
The US State Department, for example, explains to law enforcement agencies in the USA that immunities and protections are not intended to prevent police from protecting the public, for example, by preventing the arrest of a diplomat who is in the process of committing a crime, or who is driving while intoxicated. They may have to subsequently release the diplomat once the danger has passed, but they are permitted to stop him.
Article 30 of the VCDR states that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
Many courts have decided that diplomatic immunity does not include protection from eviction where the property is the personal residence of the ambassador, notwithstanding the clear wording of Article 30. For example, the Pakistan court authorised the eviction of the Austrian Embassy from its building in Islamabad, on the basis that this was a commercial matter, and therefore Article 30 is not applicable.
Similarly, the Israeli courts upheld an eviction against the Canadian Ambassador in Her Majesty the Queen in Right of Canada v. Sheldon Edelson et al., 51 PD 625 (1997). In that case, the lease was entered into with the Government of Canada, so the analysis was based upon issues of sovereign immunity more than diplomatic immunity, particularly because the Conventions had not become part of Israel law as they had not been passed into the Israeli Law Codes (for more details, see part 3 of this blog series regarding the status of international treaties in domestic law systems).
In part three of this blog series, coming up next week, we will look in depth at the Khobragade incident in USA.
Below you can view the presentation used for this webinar and also watch the full recording of the webinar.