Diplomatic Immunity of a Citizen of a Foreign Country - Essay Example

Diplomatic Immunity The question whether a citizen of a foreign country enjoys diplomatic immunity is a political question. Whether a diplomatic agent is entitled to diplomatic immunity is a matter for the State Department to decide. Once the United States Department of State has regularly certified a visitor to the United States as having diplomatic status, the courts are bound to accept that determination, since this is construed as a nonreviewable political decision. In other words, this political decision cannot be overturned by the courts. The case for allowing judicial review is stronger where the executive finds an individual not to have been a diplomat, but even so the courts have generally acceded to the determination of the executive. However, since the history of international law shows that, from time to time, a claim of immunity must be adjudicated in various contexts, when an appropriate issue is duly raised before the courts, it is within the area of judicial competence and responsibility to determine whether a claim of diplomatic immunity is valid. For instance, when the State Department, in making a certification, not only rules upon a persons diplomatic status but also states a conclusion of law in making the determination, the determination is reviewable, that is looked at, by the courts. Also, where the status and right to immunity have not been determined by executive action, they are a proper subject of decision by the courts. The Vienna Diplomatic Convention provides absolute immunity from criminal prosecution for diplomats and their family members who are not nationals of the receiving state. These individuals also enjoy immunity from civil suit except in three instances: (a) an action regarding real property in the receiving state unless the property is held on behalf of the sending state for purposes of the mission1, (b) an action relating to succession (in which the diplomatic agent is involved as executor, administrator, heir or legatee) not on behalf of the sending state2, or (c) an action relating to any professional or commercial activity in the receiving state outside of a diplomats official functions3. When the diplomatic agent stops his functions his immunity ceases as well, except “with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.” (Vienna Article Convention). The State Departments interpretation of the provisions of the Convention, although given deference,are not conclusive. Notwithstanding immunity of an official, non - immune persons and perhaps even immune officials may in some instances lack immunity when engaged in certain conspiracies, notwithstanding that some of the parties are immune. As with head-of-state immunity, most courts take the position that the Court is bound by a State Department suggestion that the individual in question is a diplomatic official for purposes of the Convention. Generally an individual must be accredited by the State Department as a diplomatic official in order to be entitled to full diplomatic immunity. The issuance of a “diplomatic” visa does not normally constitute such certification. A foreign government cannot, on its own establish diplomatic immunity; the State Departments assessment of the individuals functions, and not assertions of the guest nation, are generally determinative. Nonetheless, where a person had in fact performed diplomatic functions and the guest nation had in fact properly notified the Department of State, one would expect that failure to certify diplomatic status would not by itself preclude diplomatic immunity. Where and when an act occurred, and who committed it, may be significant. For example assume that a diplomatic agent committed a wrongful act in his own country that nonetheless gave rise to a potential claim in the U.S. courts. The diplomatic agent would normally be entitled to immunity as the act did not occur within the receiving state even though it was outside his official functions. When the diplomat departs, immunity ceases, as the alleged wrongful act was not pursuant to his functions as member of the mission. Similarly, when immunity arises for acts committed in the United States, immunity ceases once the diplomatic agent has been given a reasonable opportunity to depart the country. Of course by that time the diplomat has left and obtaining personal jurisdiction will be difficult. By contrast members of the administrative or technical staff would in some instances be subject to jurisdiction in the U.S. for the same wrongful activity as the immunity of Article 31 generally does not extend to “acts performed outside of the course of their duties.” Diplomatic agents are entitled to the broadest immunity; as a consequence the United States may limit full diplomatic status to certain persons or classes of persons, and refuse such status for other persons or classes of persons. Nonetheless a person without full diplomatic status may enjoy some limited immunity. Immunity may extend to members of the technical and administrative staff of a diplomatic mission, and members of the service staff of the mission. As regards civil litigation, this immunity generally is limited to acts performed in the course of their duties. Nationals of the receiving state, lacking full diplomatic status, may lack many of the protections of the Vienna Diplomatic Convention. Diplomatic officials, and in some instances their staff, may also be exempt from having to give evidence, and exempt from execution except as regards certain matters for which immunity is not granted, “and provided that the measures concerned can be taken without infringing the inviolability of his person or his residence.4”Immunity may be waived by the sending state. Waiver must always be express. A sending States waiver of immunity for criminal prosecution does not necessarily waive immunity for civil suits. At least one court has suggested that only the State may waive immunity, not the individual official. At least one other court has found that the State must assert diplomatic immunity for its official in order for the Convention to become potentially applicable. Waiver of immunity from jurisdiction does not imply waiver of immunity from execution of the judgment. Purported representatives to the United Nations can present some unique legal questions. In theory at least three immunity statutes potentially apply: the United Nations Convention, the Vienna Diplomatic Convention, and the International Organizations Immunities Act and immunity for international organizations. A recent district court decision ruled that persons certified by the Department of State as diplomatic envoys to the United Nations enjoy the full immunities of diplomats under the Vienna Convention on Diplomatic Relations, at least where the Department of State certifies that full diplomatic immunity should be so extended5. For the Diplomatic Convention to apply the diplomat must be accredited as a diplomat; and, the State Departments determination that the individual is not so accredited generally negates the application of the Diplomatic Convention. Immunity has been denied persons who the State Department did not accredit, and who acted outside of their purported United Nations duties. The Vienna Diplomatic Convention is supplemented in its application by the Diplomatic Relations Act of 1978. The protections of the Diplomatic Convention are extended to non-parties of the Convention.In its specific application to a particular mission, the President may augment, or limit, the protections otherwise available under the Diplomatic Convention. Missions are required to maintain certain liability insurance coverage. Additionally the Act specifically provides for the dismissal of actions against persons entitled to immunity under the Diplomatic Convention. This notion applies equally to those whom are arrested. An officer cannot arrest one who is entitled to diplomatic immunity. Since they are here as official representatives of their country’s government, they bring their country’s soil with them (Bennett 82). An exception to these guidelines is the consular officers and their families from the Commonwealth of Independent States, China, Poland, Hungary and the Phillipenes. (Bennett 82). In conclusion, the United States would be hard pressed to try a diplomat from my country (Indonesia) for a criminal or civil action. This however, I think cannot work, well for United States citizens since there is no reciprocity. Works Cited Vienna Diplomatic Convention, Article 39(2). Mukaddam v. Permanent Mission of Saudi Arabia to United Nations, 111 Supp. 2d 457, 468, (S.D. N.Y. 2000). Management and Supervision in Law Enforcement 4th Ed. Wayne W. Bennett and Karen M. Hess West Publishing Company (2004). Chapter 5 p. 82 U.S. v. Lumumba, 741 F.2d 12 (2d Cir. 1984). 22 U.S.C.A. §§ 254a to 254e. Read More