Monday 27 November 2017

Major theories governing immunity.



In international law there are rules and guide lines that govern the conduct of business and behaviour of organisation envoys, ambassadors, ministers, heads of states in foreign territories. Execution of business and government duties in foreign territory requires protection of the diplomats from unnecessary penal acts that can be preferred by receiving states, since they represent sending states. Diplomats are entitled to protection, since they are not in foreign land on personal capacity, but are seen as a state. Their immunity entails rules and guidelines that protect them from various acts of prosecution. However, it does not mean that these privileges’ of immunity will give them a ticket to break law in foreign land. There are three forms of immunity enjoyed by diplomats depending on the capacity one is send to foreign land on; these are state, diplomatic and consular immunity. However, these forms of immunity are grounded in immunity theories that explains the circumstances that surrounds each form of immunity depending on the capacity one is on foreign mission. The theories are: representative theory (Representative theory entails protection state representative carrying state obligations under the state banner in a foreign land), extraterritoriality theory (objects that assimilate the sending country) and functional necessity theory (functions or roles assigned on personalities to execute given duties on foreign land). However, theories have their own criticism and limitations as shall be discussed under each theory. The essay will look at each theory giving possible examples where the theory was put into practice.
Immunity is defined by Ross (1989) as rules and principles that govern negotiation of states that engage in a political relationship. The rules and principles are meant to provide safety nets for diplomats send by either state on foreign mission. Ross (1989) further states that  Immunity comes in three forms these are: state immunity- granted to heads of state where they are not liable to prosecution by municipal law within the world, the person of the president is defined inviolable and any object or place he occupies becomes extraterritorial, diplomatic immunity- is meant for the protection of diplomats such as ministers, envoys, and intergovernmental organisations representatives who are immune to prosecution but are obliged to observe and respect foreign land laws at the same time their objects, family attract the same immunity and Consular immunity – which extends to the administrative arms of the mission covering employees under the diplomatic mission and they are only immune as guided by time permitted for them to be on duty and the immunity does not extend outside duty.
In addition, it is important to note that diplomatic immunity can be traced back to ancient history. According to Ross (1989), the concept of diplomatic immunity is based on three theories: personal representation, the theory of extraterritoriality, and the theory of functional necessity. These theories are rooted in both legal and political thought, as well as in actual diplomatic practice among nations. An understanding of the historical developments forms the basis of the contemporary issues relating to diplomatic immunity. Ancient civilized states developed the concept and engaged in the practice of diplomatic immunity.' Histories of the ancient Greeks, Romans, Jews, Chinese, Indians, and Europeans provide clear evidence that these states practiced diplomatic immunity (Satow, 1979). Recognizing that the practice of protecting foreign representatives reciprocally benefits both parties, these states provided immunity for each other's ambassadors regardless of the gravity of the foreign envoy's acts.

Immunity of diplomats has over years been explained from theories that gave birth to different types of immunity such as state immunity, diplomatic immunity and consular immunity (Knuchel, 2011). Authorities have shared different views on which theory came first after the other but all the same the differences in telling which came earlier has not changed what they claim are the tenets of each theory. In this essay their order and hierarchy is not important but will concentrate on what each theory entails. Theories of immunity seek to justify the inviolable nature of the diplomats. The first theory to be discussed is the representative theory. The theory of personal representation was the first justification propagated to justify diplomatic immunity (Wilson 1967). Under the theory of personal representation, diplomats acting on behalf of a sovereign state embody the ruler of that state. An affront to the representative of a sovereign state under this theory constitutes an affront to the foreign state itself. Analysis discredits this theory on three grounds. First, the foreign envoy cannot have the same degree of immunity as the sending state, because this principle places the individual diplomat above the law of the host state (Wilson, 1967) second, the decline of the powerful monarch and the evolution of popular rule makes it unclear exactly whom the diplomat represents. Third, the theory extends no basis for protecting diplomats from the consequences of their private actions (Wilson, 1967).

Furthermore , according to Maw, representative theory mainly give explanation to immunity accorded to head of states and most probably the highest  member of government who will be on foreign land representing sending state. In this case it has given birth to what is called state immunity. A case in point where the theory was put into practise is when the President of Zimbabwe R.G. Mugabe was banned to attend the European Union –ACP summit following previous restriction given to him after he was labelled to have failed to uphold rule of law and respect of human rights in the period 2000. The restriction had seen him banned from visiting any of the western countries. However, on the EU-ACP summit he attended not in his personal capacity but he went there as a state hence he could not be denied entry since he had state immunity that protected him from doing state obligation. In another example, Kenyan President Kenyatta has been difficult to indict as wanted by ICC(international criminal court) following the atrocities of human killings following ethnic clashes over election outcome in CXSc¬!234C5VBNUI0O­the country but it was tantamount to prosecute a state hence the ICC could not swiftly indict a sitting head of state for such claimed massive human.

The second theoretical justification advanced to justify diplomatic immunity is the theory of extraterritoriality(Wilson,1967).  The concept of extraterritoriality stems from the writings of French legal theorist and jurist Pierre Ayraut (1536–1601), who proposed the theory that certain persons and things, while within the territory of a foreign sovereign, remained outside the reach of local judicial process. Classical writers such as Hugo Grotius (1583–1645) and Samuel von Pufendorf (1632–94) gave Ayraut's ideas greater circulation.Extraterritoriality for ambassadors and other diplomatic representatives gained widespread acceptance during the reign of Queen Anne of Great Britain (1665–1714). In this period, British officials arrested a Russian ambassador who had run up substantial debt to the British government. An international incident ensued as Russian officials and others throughout the world objected to Britain's disregard for the diplomat's immunity. Because of the outcry, Britain passed the Act Preserving the Privileges of Ambassadors in 1708. Other nations followed Britain's example, and the United States enacted an essentially identical statute in 1790.

 Some authorities Gaukrodger(1988) for one, have named this theory the first and oldest as well as most outmoded theory which had a legal fiction based on the notion that the territory of the receiving state used by the diplomatic mission or diplomat should be considered as a part of the territory of the sending state instead.   Under this rationalization, the diplomat legally resides on the soil of the sending  state despite the fact that the diplomat lives abroad. Consequently, the foreign envoy is not subject to the law of the receiving state due to a lack of a local residence.  Although this legal fiction received widespread support from international legal scholars and in judicial opinions, authorities have recently questioned and subsequently rejected the theory as a basis for a broad construction of diplomatic immunity. According to Castel (1988) the problems of the theory stem from the vagueness of the term "extraterritoriality." Extraterritoriality is subject to a number of incoherent interpretations, each providing illogical implications. For example, if diplomatic premises covered an entire section of a city, that part of the city would become untouchable by local law enforcement because it is not theoretically part of the territory of the receiving state.
 In addition the application of extraterritoriality has been met with disgruntlement in other countries. A case in point that of USA, in 2002, where two U.S. servicemen allegedly killed two young girls in a traffic accident in South Korea. Despite protests from South Koreans to have the servicemen tried in a Korean court, the soldiers were tried—and acquitted—by a U.S. military court. The treatment of the men caused anti-American protests throughout South Korea. It is extraterritoriality theory that influenced the embassy. The opposition leader Morgan Tsvangirai went to hiding at the Netherlands embassy making it difficult for the security officers to retrieve him since he was deemed to be in Netherlands by extraterritorial principle. In another example NATO bombing of embassy of China and paying compensation in Yugoslavia to avoid war.
The third theory, the most widely accepted current justification of diplomatic immunity, is the theory of functional necessity. The “theory of functional necessity”, which provides a conceptual basis for the Vienna Convention (though there is no direct reference to such basis). According to this theory, the justification for granting immunities to diplomatic agents is based on the need to enable normal functioning of diplomatic missions and diplomats. The legal basis of immunities in the Vienna Conventions can be found in the preamble, which explains 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”. Driven by the functional necessity, Herman (1982) noted that this theory confers a certain minimum immunity on the diplomatic agent to perform his functions without hindrance. This obviously makes a link between granting immunities and performing the diplomatic functions and can also provide a certain level of control where such a link is missing. Consequently, diplomatic immunity protects diplomats from the receiving state, which may, for various reasons, want to hinder the diplomatic agent in carrying out his functions effectively, for example, by commencing unfounded penal proceeding.
Furthermore, this theory provides that the diplomat is not subject to the jurisdiction of local courts, because this would hamper the functions of diplomatic relations. The functional necessity theory justifies immunity for the purpose of allowing diplomats to conduct their business. Accordingly, diplomatic immunity protects the diplomat's ability to carry out that work efficiently. (Ross, 1989). The privilege does not, however, afford protection and benefits to the diplomat as a person. if a diplomat acts outside of the normal sphere of conducting international relations, a question arises as to whether immunity still applies. Current administrative and judicial construction of diplomatic immunity illustrate that diplomats themselves are immune from prosecution even when committing criminal or tortuous acts outside of their prescribed functions (Knuchel,2011). A critique of this construction of the functional necessity theory distinguishes the treatment of the individual diplomat from that of the diplomatic process.

In theory, diplomatic immunity originated to protect the process of furthering relations between nation states (Castel 1988)." The current focus of immunity on the individual diplomat is therefore unsound. The assertion that the diplomat cannot function efficiently without immunity implies that the diplomat must break the law of the receiving state in order to conduct international relations (Herman 1982).  Therefore, the current construction, providing diplomatic immunity to the individual, is inconsistent with the theoretical basis that accords protection only to the diplomatic process. In Zimbabwe after the sanctioning of operation Murambatsvina there was an outcry by civic groups over the infringement of human rights where they cited the urban poor being exposed and left vulnerable. This outcry received international reckon and Tibaijuka flew into the country on a mission to assess and evaluate the extent of human suffering. The visit by Tibaijuka attracted the employment of the functional necessity theory to protect her from local jurisdiction so that she can perform her duty without being exposed to local penal actions.

To conclude, it is clear that immunity of officials or organisations on foreign land was influenced by the three main theories which are representative, extraterritorial and functional necessity theory. These theories are particular in ensuring that each circumstance receives the necessary immunity accorded to the diplomat or organisations’. They have proved crucial in pointing out situations or circumstances that is necessary to ensure the protection of diplomats. Immunity has been seen necessary to allow protection of agents in foreign land, with all the liberty to perform their duties but not necessarily empowering them to wilfully breach municipal law in the countries they will be operating from. The theories have influenced the operating conditions of the representatives of states. However each theory has its criticism as mentioned above.

                             Reference List

Castel, J. G. (1988) Extraterritoriality in International Trade. Toronto, Canada: Butterworths.

 Gaukrodger,D (2010) ‘Foreign State Immunity and Foreign Government Controlled Investors’, OECD Working Papers on International Investment, 2010/2, OECD Publishing. doi: 10.1787/5km91p0ksqs7-enPOLITIKA
Hermann, A. H. (1982) Conflicts of National Laws with International Business Activities: Issue of Extraterritoriality. London: British-North American Committee.
Nicholson,F.J. ‘Sucharitkul: State Immunities and Trading Activities‘, 2 B.C.L. Rev. 459 (1961), http://lawdigitalcom­mons.bc.edu/bclr/vol2/iss2/42

Knuchel, S.(2011) ‘State Immunity and the Promise of Jus Cogens’. Northwestern University School of Law Volume 9, Num­ber 2 (Spring 2011) Northwestern Journal of International Human Rights

Maw,M. ‘Recent Trends In The Principle of State Immunity’. http://dspace.lib.niigata-u.ac.jp:8080/dspace/bitstre­am/10191/1055/1/18..

Ross, M. S. (1989) "Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of DiplomaticPrivileges and Immunities." American University International Law Review 4, no. 1 (1989): 173-205.

Satow,E. (1979) SATOW'S GUIDE TO DIPLOMATIC PRACTICE 106 (Lord Gore-Booth
5th ed. 1979). Hugo Grotius wrote that there were two inherent rights of ambassadors
abroad: the right of admission into the host country, and the right of freedom from
violence. 2 H. GROTIUs, DE JURE BELLI Ac PAcis LIBRI TRES (book 1) 440 (F.Kelsey
trans. 1925); see also Wesson, 300 Years of Diplomatic Immunity, Christian Sci.
Monitor, Jan. 3, 1980, at 23 (tracing the history of the privilege).

Wilson, C. (1967)  DIPLOMATIC PRIVILEGES AND IMMUNITIES 1-5 (discussing
in detail the theory of personal representation); B. SEN, supra note 5, at 80-83
(reviewing the different theoretical bases of diplomatic immunities).



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