Diplomatic Immunities: Abuses and Possible Remedies - Term Paper Example

Diplomatic Immunities: Abuses and Possible Remedies Diplomatic Immunities: Abuses and Possible Remedies History can attest to the vital role that messengers play in the prosperity and downfall of a nation. Whether they bring good or bad news, or any piece of valuable information for that matter, messengers have become the bridges that connect tribes, communities, and societies. Today, such is the role that diplomats undertake. No longer are they but messengers, diplomats have also become essential in representing a sovereign state on foreign territory. Based on the Vienna Convention on Diplomatic Relations of 1961, diplomats are then to be given privileges primarily with regards to exemption over certain criminal sanctions of the receiving country. Yet because of ambiguities in the interpretation of the said international agreement, abuses of diplomatic immunities have become inevitable. These abuses of power and privilege range from petty crimes like traffic violations and debt to more serious crimes of conspiracy, rape, and murder. Because of this, efforts to clarify the extent and provisions of Diplomatic Immunity should take place. This paper will then attempt to provide suggestions on how to resolve and prevent abuses of diplomatic immunities. A Background on Diplomatic Immunity Diplomatic immunity, as agreed upon by the standards of international law, is a form of legal exemption extended to a country's diplomats. This entitles the diplomats and their immediate families to be exempted from the laws and local courts of the host country. Some of the general provisions of diplomatic immunity guarantee that the diplomats and their immediate families: "may not be arrested or detained, may not have their residences entered or searched, may not be subpoenaed as witnesses, and may not be prosecuted." (eDiplomat, 2006) The 1958 Yearbook of International Law Commission, as cited in Vrk (2003), mentions three theories about the legal bases of diplomatic immunity. The "theory of extraterritoriality" explains how the territory occupied by the diplomat while in the host country or receiving state is actually still part of the home country or sending state. The "theory of representative character" states that being the representatives of a sending state, the diplomats should also be given the same independence as a receiving state would have negotiated with the sending state itself. These two theories, of course, have long been deduced to legal fictions with all the faulty assumptions. The accepted theory behind diplomatic immunity now lies in the "theory of functional necessity." This theory is based on the need of diplomatic missions and diplomats to efficiently perform their duties and responsibilities according to what their country requires from them, without apprehensions of being criminally charged by the receiving state. For instance, diplomats are able to initiate unfounded penal proceedings without hindrances from the receiving state because of diplomatic immunity. According to eDiplomat (2006), "Diplomatic immunity is not meant to benefit individuals personally; it is meant to ensure that foreign officials can do their jobs. Under the concept of reciprocity, diplomats assigned to any country in the world benefit equally from diplomatic immunity." This assumption that diplomatic immunity would be reciprocally observed between sovereign states justifies the seemingly biased scales of justice. The rationale why countries agree to be dependent on a foreign country's decision before prosecuting a diplomat in their own territory is based on the fact that these countries are both receiving and sending diplomats. This means that they also have their own diplomats' immunity at stake in different countries across the globe. It is clearly stated in the preamble of the Vienna Convention on Diplomatic Relations 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." Regretfully, many diplomats themselves are causing the confusion and misinterpretation over the precepts and limitations of diplomatic immunity. According to Wikipedia (2006), infringements on diplomatic immunity usually fall under espionage, alimony, smuggling of small high value items, violations on local child custody laws that is also correlated with the proliferation of 'diplodads', rape cases, and sometimes even murder. Other minor abuses on diplomatic immunities include the large debts of diplomats in the host country and the special treatment that diplomats get with regards to ordinary traffic rules. However, there are also cases when abuses of diplomatic immunities become dangerously prejudiced. One account from the Answers.com Web site relates an incident in 1983 involving a diplomat's son who got away with fifteen different rape cases. Since the diplomat's son declared diplomatic immunity, he was permitted to forgo a court appearance and leave the United States. Possible Remedies of Abuses on Diplomatic Immunities Abuses of power and position are bound to happen with unrestrained exercise of rights and privileges. It is then important to implement mechanisms that would prevent the misinterpretation and malpractice of diplomatic immunities. Since sovereign states across the world are hesitant to go through the ordeal of revising the Vienna Convention on Diplomatic Relations (Vrk, 2003), practical remedies of prevention and protection against abuses of diplomatic immunities now lie in the hands of both the host country and home country of the diplomat. Achievable remedies are in the line of: maximizing the right of the host country to declare a diplomat persona non grata, holding more accountability on the part of a diplomat's home country. Maximizing the right of the host country to declare a diplomat Persona Non Grata The exemption from local sanctions of a diplomat is only half the story of Diplomatic Immunity. While diplomats may not be held liable from criminal, civil, and administrative authorities of the host country, the said immunity may be withheld at any point by the home country. This implies that the exemption from sanctions that a diplomat is privileged to have in the host country is not tantamount to an exemption from the diplomat's home country. Also, in instances when a diplomat commits serious crimes in the host country or commits offences that are unconnected with the duties as diplomats- these automatically become grounds for the host country to declare any member of the diplomatic staff of a mission an unwanted person, or persona non grata. This discretion of the host country may be committed without having to actually explain its reasons. It may also be done at any point, but of course with valid reasons. After all, in declaring a diplomat banned and unwanted from the host country, the latter puts at stake its international ties with the diplomat's home country (eDiplomat, 2006). An example of how a receiving state requests for the sending state to waive the immunity of their diplomat is related in Wikipedia (2006): "In January of 1997, Gueorgui Makharadze, the deputy ambassador of the Republic of Georgia in Washington caused an accident that injured four people and killed a sixteen-year-old girl. He was found to have a blood-alcohol level of 0.15, but released from custody because he was a diplomat. The U.S. government asked the Georgian government to waive his immunity, which they did and Makharadze was tried and convicted of manslaughter by the U.S. and sentenced to seven to twenty-one years in prison." Holding the Diplomat's home country Accountable Most of the time, the diplomat's home country do not actually allow the waiver of immunity for the sake of the host country. This applies because the truth of the matter is that they would not want one of their citizens, especially one of their government officials like diplomats, to be tried in the courts of a different country, with different rules, and different punishments. Once a waiver of immunity is approved, the diplomat's home country has already given up its hold on the diplomat's case. This is the reason why from the host country's perspective, it is better to prevent such risks in the first place by doing a character check of the diplomats that other countries wish to stay and work in their territory. According to Vrk (2003), countries that host diplomatic missions in their teritory should take a more active stance of prevention over protection with regards to abuses in diplomatic immunities. Host countries should then accredit greater emphasis on the deterrence of such crimes and abuses of by first of all soliciting the sending states to present a general background on the diplomat, particularly information pertaining to his or her professional training in the Foreign Service. Additional information on the possible criminal background of the diplomat should also be provided by the sending states. Lastly, descriptions about the reasons why that diplomat left his or her earlier diplomatic assignments must be made. This can be achieved by contacting those countries where that particular diplomat has served, and asking information regarding that his or her ethics and credibility. References Diplomatic Immunity. (2006). Retrieved December 18, 2006 from Wikipedia, The Free Encyclopedia: http://en.wikipedia.org/wiki/Diplomatic_immunity Diplomatic Immunity. (2006). Retrieved December 18, 2006 from eDiplomat: http://www.ediplomat.com/nd/diplomatic_immunity.htm Diplomatic Immunity. (n.d.) Retrieved December 20, 2006, from Answers.com Web site: http://www.answers.com/topic/diplomatic-immunity Vrk, R. (2003). Personal Inviolability and Diplomatic Immunity in Respect of Serious Crimes. Juridica, 1406(1082), 110-119. Retrieved December 18, 2006, from http://www.juridica.ee/international_en.php Vienna Convention on Diplomatic Relations, 1961. (n.d.) Retrieved December 18, 2006 from http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf Read More