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.
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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