Diplomatic Immunities

This essay aims to shed light on the concept of diplomatic immunity as invoked and applied throughout history until the modern age. It will portray diplomatic immunity as a necessary but highly abuse-prone practice of diplomats across time and space. Whilst the author acknowledges that in modern days of increased and de-centralised threats (McClanahan 1989, 146) immunity for state representatives plays a crucial role, it also notes shortcomings of such practice and ways these can be remedied. Section I will examine immunity and its mis-use since the Ancient times and will explain why it is so deeply imbedded in international law. Section II lays down theories of diplomatic immunity as these evolved across the span of centuries. Section III provides practical evidence for a theoretical framework as it provides an insight into cases in the past decades when immunity was abused or misunderstood. Section IV notes current and future ways of checking diplomatic abuses. Section V offers concluding remarks.

An internal US inspection report released this summer criticized the US ambassador to the UAE, HE Michael Corbin, for misusing parts of his diplomatic privileges. Not only in the UAE the granting of diplomatic privileges and immunities is a controversially debated topic. In the public eye diplomats seem to enjoy traditional prerogatives enabling them to float above the law. In the light of abuses of diplomatic immunities such as parking, speeding or even more serious crimes such as drug and people trafficking the upcoming Monday night speaker lecture will raise the question why states grant diplomatic immunities.

In order to create a basic understanding the lecture will analyze the historical evolution of legal doctrines underlying the concession of diplomatic privileges and immunities. Diplomatic law governing the inviolability of permanent mission premises and immunities of their staff are regulated in the 1961 Vienna Convention on Diplomatic Relations (VCDR). We will look at the codification history of the VCDR and discuss cases of abuses of diplomatic immunities in order to get a feel for the link between legal theory and diplomatic practice to deepen our understanding of the benefits of such long-standing diplomatic practice.

Diplomatic Immunity has strong reason for its existence principally, that of guaranteeing the freedom and independence of diplomats in order to permit them to carry out their functions without risk of undue pressure by receiving States. However since privileges and immunities form an evident exception to general rules of accountability within national and international law, diplomats are able to turn immunity into impunity. Therefore, abuse of diplomatic immunity has often led governments, legal authors and the general public to question its very existence. This thesis discusses how immunity in itself fails to explain why certain diplomats abuse their immunity whilst others do not. The reasons behind abuse are several and include culture, norms, corruption in one’s home country, the country’s attitude towards the host state, the international political atmosphere, duration of tenure and the willingness to commit abuse by the diplomat. Such reasons for abuse make immunity the common principal object but not the only one. Effectiveness of remedies is greatly impacted by factors such as political relations, trade and reciprocity, which factors supersede the desire to attain justice. The greatest obstacle when dealing with proposed remedies and emerging trends, is usually political consensus. However, any change to the current immunity assumes that the diplomat no longer requires the current immunity. The need to protected freedom and independence of diplomats in order to permit them to carry out their functions without risk of undue pressure by receiving States is still very real, just as abuse is. This makes any changes unlikely since it is in no State’s interests to leave its diplomats insufficiently protected. Interfering with absolute immunity risks weakening protection provided therefrom, risking the ability of diplomats to perform their functions and cancelling out the intent of diplomacy.

Key words: Diplomatic Immunity, Abuse, Hierarchy of Norms, Remedies, Effectiveness

By exploring the theoretical basis of diplomatic privileges and immunities, including the absolute inviolability of diplomatic means of transport, this paper will help understand the link between diplomatic theory and practice. Diplomatic privileges and immunities were largely codified at the 1961 Vienna Convention on Diplomatic Relations (VCDR). An analysis of the background to the negotiations of the 1961 VCDR will show that while diplomatic prerogatives have a clear theoretical basis, theory was secondary during the negotiation process. Being based mainly on functional necessity, and partly on the representative character theory, the theoretical approach has been applied inconsistently throughout the convention. Finally, this paper will show that the extension of absolute inviolability of mission premises to means of transport was a last minute proposal and eventually slipped through due to time constraints at the end of the 1961 Vienna Conference.

This paper deals with the doctrine of diplomatic immunity elaborated by the French jurist and humanist Pierre Ayrault (1536-1601). After a brief outline of the debate on diplomatic immunity from the end of the Middle Ages to the middle of the 16th century, the paper focuses on Ayrault’s discussion of the topic in the works he published between 1563 and 1588 and points to some important changes that occurred in the way in which the figure of the ambassador was conceived at that time. These changes offer us a number of elements which could lead to a better understanding of the transition from the medieval to the early-modern conceptions of diplomacy and ius gentium.

Ce Commentaire du Pacte de la Société des Nations a un double but.
En premier lieu, d’assurer l’information la plus complète et la plus à jour possible sur l’ensemble de l’expérience de la SDN, notamment dans ses aspects juridiques. Le Pacte est le texte fondateur du phénomène de l’organisation internationale au XXe siècle.
C’est à ce titre qu’aucune recherche et qu’aucune prise de position approfondies en la matière ne peuvent s’abstraire de ce point de départ de 1919.

En second lieu, la Charte des Nations Unies, texte fondamental de l’organisation politique mondiale actuelle, s’oriente au Pacte de la SDN, tant quand elle en prolonge les linéaments que quand elle cherche au contraire une rupture. Comprendre la Charte, dans son texte de 1945, largement inaltéré à ce jour, suppose dès lors toujours de connaître le Pacte.

Cet ouvrage se destine ainsi à être à la fois un instrument d’information et une invitation à l’exploration des voies du passé dans ce qu’elles ont de fécond pour la compréhension de l’avenir. Pour arriver à ces buts, le présent Commentaire se compose de contributions expliquant les diverses dispositions du Pacte, mais aussi de contributions transversales, s’attachant à tel ou tel aspect de portée plus générale, important dans la vie de la SDN comme dans celle des Nations Unies.

The second half of the 16th century saw a profound change in the scholarship on the ambassador, which took many forms and led to its becoming an important line of thought within early-modern scholarship on ius gentium. Within this context, the French jurist and humanist Pierre Ayrault (1536-1601) occupies a particularly interesting position. Although he wrote no monographs on the ambassador – unlike other jurists of his time – he did devote specific sections of his erudite works "Decretorum libri" (later republished as "Rerum ab omni antiquitate judicatarum Pandectae") and "De l’ordre et instruction iudiciaire" to the subject. These works vividly demonstrate the extent of the change which scholarship on the ambassador was undergoing at the time, particularly in their treatment of diplomatic immunity from criminal prosecution: these are the observations that I intend to focus on in my paper. After a brief outline of the debate on diplomatic immunity from the end of the Middle Ages to the middle of the 16th century, I will concentrate on Ayrault’s discussion of the topic and point to some important changes that occurred in the way in which the figure of the ambassador – his office, his functions, and his prerogatives – was conceived at that time. This analysis may also provide an insight into the origins of the doctrine of the “extraterritoriality” of ambassadors, which was, in fact, first formulated by Ayrault, before its widespread dissemination through the work of Hugo Grotius.

On 13 June 2016, the Government of the Republic of Equatorial Guinea filed in the Registry of the ICJ an Application instituting proceedings
against the French Republic with regard to a dispute concerning
“the immunity from criminal jurisdiction of the Second Vice-President of the Republic of Equatorial Guinea in charge of Defence and State Security [Mr. Teodoro Nguema Obiang Mangue], and the legal status of the building which houses the Embassy of Equatorial Guinea, both as premises of the diplomatic mission and as State property”.

It has previously been shown that Sokollu Mehmed Pasha - the famous Ottoman Grand Vizier of Bosnian Serb origin - supported the establishment of diplomatic relations between Sultan Murad III and Queen Elizabeth I of England and the granting of Ottoman trade privileges to English merchants, although he did not live to see these negotiations concluded. However, it seems that there has been no previous acknowledgement of subsequent English reports concerning one of Sokollu Mehmed Pasha’s sons, Hassan. Admittedly, some previous studies have noted English reports regarding a certain ‘Hassan Pasha’, but none have positively identified him as a member of the Sokolović family or noted additional references to him from as early as 1591.

Monastic immunities have been much studied in recent years, but the royal protection (tuitio) that was often associated with them in the documents has been comparatively neglected. This article examines King Lothar’s diplomas for Flemish monasteries in the years 962 – 6 , texts in which royal protection played a major role. It argues that the issuing of these documents reflected a conjunctural political alliance between the king and the Flemish count Arnulf I, but also that their juridical content in general, and the bestowal of protection in particular, was valued by the recipient institutions. In this way the article makes the case for a more rounded understanding of tuitio in the tenth-century West Frankish kingdom.

Presentation given at the 50 Years Vienna Convention on Diplomatic Relations conference at Edinburgh University Law School.

The International Law Commission (ILC) had an outstanding role in the preparation of what later became the 1961 Vienna Convention on Diplomatic Relations (VCDR). The presentation focused on the improved codification process, the composition of the ILC and its power of agenda setting, and the type and form of codification chosen.

In the following text it will be described understanding of immunities of Head of State, Head of Government and Senior Government Official under the statutory and customary international law sensu largo, in the last paragraph of these article the conclusion will be presented and the main question will be answered, and the question is: Is Head of State, Head of Government and respectively Senior Government Official protected by the immunity in the case of committing an international crime?

Le immunità nel diritto internazionale. (Book published in Italian).
Il volume sviluppa il tema dell'immunità dalla giurisdizione degli Stati esteri e dei loro organi, dibattuto nel corso della prima giornata del Convegno "Le immunità nel diritto interno, internazionale e comparato", svoltosi a Perugia nei giorni 24-26 maggio 2006. Questo convegno ha rappresentato il momento conclusivo di una ricerca finanziata dal MIUR negli anni 2003-2005 che ha visto impegnati colleghi di varie discipline giuridiche nelle Università di Perugia e Verona ad approfondire il tema in esame sotto i diversi profili di diritto costituzionale, penale, comparato e internazionale.

I contributi racchiusi in questo volume hanno ciascuno affrontato un aspetto della questione delle immunità nell'ordinamento internazionale, mettendo in evidenza i significativi sviluppi normativi, anche alla luce della prassi degli Stati, della giurisprudenza dei Tribunali internazionali e delle codificazioni più recenti. Nel complesso delle diverse articolazioni del presente volume, particolare attenzione è stata rivolta al contemperamento della regola dell'immunità rispetto alla crescente tutela internazionale dei diritti fondamentali della persona umana, con specifico riferimento ai diversi aspetti del diritto alla difesa. Si collegano a questa tendenza le riflessioni - anch'esse trasversali ai diversi contributi, oltre a quelli specifici sul tema - circa l'impatto sulle immunità internazionali esercitato dalle recenti evoluzioni in materia di diritto internazionale penale, con particolare riferimento ai Tribunali internazionali istituiti su iniziativa del Consiglio di Sicurezza e alla Corte penale internazionale, i cui statuti hanno codificato il principio per cui nessuna persona può avvalersi di immunità dalla giurisdizione penale se accusata di gravi crimini internazionali.