A Study of Diplomatic Immunities and Privileges I. Introduction – A Brief
History of Diplomacy II. Related Terms in Diplomacy III. United Nations
Legislation A. Vienna Conventions 1961 and 1963 B. Foreign Sovereign Immunities
Act of 1976 and Diplomatic Relations Act of 1978 C. General Assembly Resolution
IV. U.S. Policy on Diplomatic Immunity V. Abuses of Diplomatic Immunities and
Privileges VI. Conclusion VII. Appendices VIII. Bibliography I. INTRODUCTION –
A Brief History of Diplomacy Sadaam Hussein emerged as “public enemy number
one” because of his blatant disregard to international law and relations, in
his continued hostage hold of U.S. diplomats. As a result, foreign and national
security policies had to be enacted to handle the hostile foreign affair.
Diplomacy became one of the chief instruments of foreign and national security
employed in the Iranian hostage crisis and other international conflicts
preceding and succeeding. The history of diplomacy can be traced to the intense
diplomatic intercourse between ancient Egypt and its neighbors long before 1000
BC. Not until the twelfth and thirteenth centuries, however, did diplomacy begin
to assume its modern form. Rules were developed by the Italian city-states to
govern the appointment and conduct of ambassadors, and in 1455, Milan
established the first permanent embassy in Genoa. In the sixteenth century,
other European states followed the Italian example and appointed permanent
ambassadors. Under the influence of sixteenth and seventeenth century writers,
such as Hugo Grotius and Alberico Gentili, the privileges of diplomats were more
precisely defined and incorporated in international law. The Congress of Vienna
in 1815 and the Vienna Convention on Diplomatic and Consular Relations in 1961
and 1963 defined and redefined, respectively, classes of diplomatic
representatives. In the twentieth century, consular and diplomatic services,
formerly separate, have been merged in many countries, including the United
States (1924). Diplomacy is the activity of preventing and solving conflicts by
representatives, namely diplomats, of two or more states (nations) conversing on
related controversial issues with expectations toward peaceful agreements. The
most significant catalyst or mechanism used within diplomacy exists as
immunities and privileges. Diplomatic immunity and privilege entails an
exemption or freedom from liability or penalty under criminal and national law.
Consular agreements, extraterritoriality, impunity and extradition are terms
that appear frequently throughout the discussion of diplomatic immunities and
privileges. As the established ruling commission over global affairs, the United
Nations have enacted legislation concerning the diplomatic relations, including
immunities and privileges. Such legislation occurred at the Vienna Conventions
of 1961 and 1963, along with the passing of the Foreign Sovereign Immunities Act
of 1976. As a super power and democratic nation, the United States plays a
pivotal and influential role in the enforcement of immunity statues. Within its
national boundaries, the United States follows its policy on diplomatic immunity
and privilege, while other nations observe American practices and execute their
own policies. Consequently, such freedom granted by diplomatic immunity has
resulted in mainstream and high sea foreign cases when diplomats abuse it. What
becomes apparent within the study of diplomatic immunity over the last ten years
is the dilemma placed on participating diplomatic countries when abuse calls for
rule and order and thus, the responsibility needed to be taken by diplomats. II.
RELATED TERMS IN DIPLOMACY Dating back to the ancient Greeks, a tradition upheld
that foreign emissaries traveled under the protection of Zeus. In international
law, this ideal form of immunity upholds in current diplomatic relations.
Immunity was intended to protect diplomats working in unfriendly foreign
countries. As abuse of this exemption system began to occur, once unfamiliar
terms grew into commonly used words and practices. · Consular agreements –
the appointment of an official by a government to reside in a foreign country to
represent the commercial interests of its native citizens. Consular agreements
usually beget global negotiations. · Extraterritoriality – an exemption from
the application of jurisdiction of law or tribunals. Extraterritoriality
requires federal judiciaries to determine the territorial reach of federal
statutes. · Impunity – exemption from punishment, penalty, and harm. ·
Extradition – legal surrendering of a fugitive to the jurisdiction of another
state, country, or government for trial. III. UNITED NATIONS LEGISLATION
Diplomacy exists as one of the most attention-needed issue on the agenda of the
United Nations. As an ideal governing body among many countries, diplomacy
represents one of the main mechanisms encouraged by the United Nations. Two of
the groundbreaking global fellowships occurred at the Vienna Conventions of 1961
and 1963, both of which focused on diplomatic relations. Consequently, the
Conferences established and revised rules and regulations in order to govern the
issuing of diplomatic immunities and privileges. Although they differ, the
diplomatic and consular missions are bestowed similar immunities. In Article 22,
paragraph 1 through 3 of the United Nations passed law during the convention,
the act sets the two main premises: 1) immunity from search, requisition, legal
attachment, or execution; and 2) the duty of the receiving state is to protect
the diplomatic missions. In addition, under the consular mission, an exception
to the premises may transpire in cases of emergency. Another example of the
United Nations developing a precedent in the allotment of diplomatic immunities
and privileges concerns official diplomatic documents. Article 24 and 33 states
that “records, documents, correspondences, and archives cannot be seized or
detained physically; nor can they be used as evidence in legal proceedings. (See
Appendix 1, “Comparative Study of Privileges and Immunities of Diplomatic and
Consular Missions”). All foreign officials do not receive full immunity.
Levels of immunity are granted on the basis of rank and position within the
foreign mission. Along with one hundred and sixty nations, the United States
agreed to the treaties set during the Vienna Conventions of 1961 and 1963
explaining diplomatic practices, including immunity. Immunity from all criminal
prosecution and many civil suits for diplomatic agents and members of their
families illustrates the distinct levels of immunity issued. Embassy
administrations encompass lesser extents of immunity, and consuls appear at even
lower levels of immunity. Immunity only for behavior related to the mission
limits service staff of embassies. A country can expel a foreign diplomat whom
it considers undesirable by declaring the diplomat persona non grata. Another
important law regarding diplomatic immunity came in 1976 as the Foreign
Sovereign Immunities Act. The act sets two conditions for the service of process
on a foreign state and its agencies, intervention or settlement amongst the two
parties. Because the act recognizes sovereign immunity, the process encourages
any breach of contract dismissed due to diplomatic immunity. An incident that
happened in the early 1990s involved a Zaire mission and the Sage Realty
Corporation of New York. After persistent failure to pay its office space rent,
$20,000 monthly, Sage Realty brought a civil action suit to evict the Zairian
mission. The Zairians appealed to the Second Circuit Court of Appeals, who ruled
in favor of the foreign mission on the basis of the Foreign Sovereign Immunities
Act. The ruling concluded, “The Foreign Sovereign Immunities Act states that
the property of a foreign state in another country shall be immune from
attachment, arrest, execution or eviction.” A related act, the Diplomatic
Relations Act of 1978, addresses certain securities, common to citizens, that
diplomats must take to ensure proper restitution in cases of misbehavior such as
purchasing liable insurance for automobile accidents. A recent form of
legislation attempt appears at the 84th plenary meeting of the General Assembly
of the United Nations. In 1994, the General Assembly proposed resolution 49/49,
which sought more protection for diplomats while on missions in other countries.
The resolution “strongly condemns act of violence against diplomatic and
consular missions and representatives, as well as against missions and
representatives of international intergovernmental organization and officials of
such organizations, and emphasizes that such acts never be justified."
While forbidding any insubordination of international law, the proposal requests
special tasks from the Secretary General to maintain an accurate account of all
conflicts with international law involving diplomatic or consular immunity. (See
Appendix 2, General Assembly Resolution 49/49). IV. U.S. POLICY ON DIPLOMATIC
IMMUNITIES AND PRIVILEGES In the federal system of the United States, the U.S.
Department of State, headed by the Secretary of State (currently, Madeline
Albright) handles foreign relations and services. Diplomats, trained career
officials, help implement U.S. foreign policy by representing the United States
in its relations with other countries and with international organizations. The
Department of State maintains embassies, consulates, and trade and cultural
centers in each country with which they have diplomatic relations. Ambassadors
lead each U.S. embassy, and assisted by a staff of diplomats and attaches who
have various functions. The political and economic sections report on U.S.
developments in the host country. The consular section assists its national
consuls living or traveling in the host country with commercial and legal
matters and issue visas to local residents who wish to travel to its country.
The cultural section promotes the culture of its own country. Diplomats
stationed in a foreign country enjoy privileges known as diplomatic immunity.
Hence, they are not subject to local civil and criminal laws and encompass the
liberty to communicate with the U.S. government. Extraterritoriality allows for
U.S. embassy buildings and grounds to fall under American jurisdiction. Similar
structures of foreign relations departments appear in many other countries.
Because of its democratic federal government system, the United States faces two
major dilemmas, equal treatment and dual nationality. Realizing that large
numbers of U.S. diplomats are stationed in many countries with different, less
lenient, executive, legislative, and judicial systems, the Department of State
cautiously deals with diplomatic immunity. “It makes sense…for us [U.S.] to
maintain the practice and law of diplomatic immunity because it protects
Americans overseas,” proclaim Nicholas Burns, spokesman for the State
Department in a February 1997 issue of Insight on the News. When foreign
diplomats positioned in the United States break federal or state laws, immunity
must be considered first and foremost, although unpopular among American
citizens. Failure to recognize diplomatic immunity leaves the nation open to
sanctions by the U.N., and especially places overseas U.S. diplomats in an
uncomfortable position to receive maltreatment from the hosting country. As a
nation of mixed cultures and individuals affixed with a racial designation
identifying ancestral background as well as American citizenship, dual
nationality arises as an issue under diplomacy. Dual nationality presents
problems particularly in nations that consider any descendents of their homeland
citizens regardless of their current residence. For example, in Vietnam,
negotiations affecting the erection of a liaison office between Hanoi and
Washington, D.C. were stalled. The intended act was to establish full diplomatic
relations between both nation, but Vietnamese officials refused to agree to
terms mandating U.S. notification in the matter that an American diplomat must
be detained in Vietnam. Assuming the U.S. diplomat would have Vietnamese
descent, in its disregard of dual nationality, Vietnam resolved not to grant
immunity or respect to U.S. diplomats. While recognizing its dilemmas, the
United States follows a policy when abuse of diplomatic immunity happens. With a
breach in federal, state, or local laws, the Department of State takes various
steps to rectify the matter. Firstly, the State Department notifies the native
country of its diplomat’s misconduct and advises a waiver of immunity to
permit the appropriate U.S. court to bring prosecution. If the waiver of
immunity is denied, the Department orders for the infinite expulsion of the
diplomat from American soil. At times, the home country may try the diplomat
within its judiciary. Civil suits against diplomats often are settled through
mutual settlements. V. ABUSES OF DIPLOMATIC IMMUNITIES AND PRIVILEGES (U.S.&
abroad) Indeed, diplomacy offers a preferred solution to international conflict
than war. Diplomacy eliminates the mortality and economic costs many countries
suffer when engaged in war. However, on a smaller scale, diplomacy, causes its
own forms of national disruption. Diplomatic immunity grants beyond even what
many national supreme law documents constitutes. Unlike diplomatic immunity,
even the U.S. Constitution does not promise freedoms from prosecution after a
crime is committed. Abuses of such near absolute freedom occur, in many
instances, go unprosecuted, and thus ignites public disdain for international
relations. Abuses of diplomatic immunity situate countries in awkward and
adverse dual roles. The state or foreign service departments must act in
responsibility of their duties to maintain international fellowships, but also,
show allegiance to the country in which it serves. Cases of abuse diplomatic
immunity and privilege arise abroad and in the United States, each resulting in
different outcomes. · “On July 21, 1994, the District Court (Amtsgericht) of
Berlin-Tiergarten issued a warrant for the arrest of S. (name must remain
anonyomous), the former Ambassador of Syria to the German Democratic Republic
(GDR), on charges of having assisted in the commission of murder and the
bringing about of a bomb explosion in West Berlin in August of 1983.” Result:
The Court concluded that S. had exercised official duties because he acted
according to orders from his government, regardless of its legality in another
country. Therefore, he is exempted from prosecution and granted diplomatic
immunity. · “General Augusto Pinochet thwarts a Communist takeover of Chile
in the early 1970s and placed the regime in a plebiscite.” Result: The British
House of Lords grants an extradition of Pinochet of Chile to Spain to stand
trial for “crimes against humanity”. However, Chilean’s democratic
government contends Pinochet should be immune from persecution and extradition
because he was the head of state at the time. The United States has also faced
many cases of misconduct from foreign due to diplomatic immunity. · “Gueorgui
Makharadze, diplomat from the Republic of Georgia, on January 3, 1997, kills a
16-year old girl when driving at 80 mph sets off a horrific five-car crash that
catapults onto her Volkswagen.” Result: Georgian President Eduard Shevardnadze
waives his diplomat’s immunity in order for him to stand trial in U.S. federal
courts for second degree murder with a sentencing of approximately 20 years.
“In December of 1996, a brawl between New York City’s police and U.N.
diplomats results over a traffic accident. U.N. diplomats said to have been
drunk, while officers are alleged to have been harassing. In addition, Mayor
Giuliani claims diplomats owe excessive amounts of money to the City. Moscow
mayor Yuri Luzhkov alleges discrimination and harrassment.” Result: Matter is
settled mutually between nations. Because of the uproar, U.S., Russia, and other
nations began outlashing one another alleging maltreatment of foreign diplomats.
· “In 1992, Angel Francisco Breard, Paraguayan diplomat, kills an Arlington
woman during an attempted rape.” Result: Because of the brutality and severity
of the crime, the Virginian government tried and found him guilty. Paraguay
officials were not notified of the act, and thus Virginia failed to recognize
any diplomatic immunity. The sentencing was death by legal injection. Secretary
of State Albright attempts to stay the execution, along with a similar appeal
form the International Court of Justice (ICJ). The Supreme Court rules in favor
of the state of Virginia (Breard v. Greene), ruling that the ICJ, the U.S.
federal government, nor the Supreme Court could not order Virginia to stay the
execution. The execution took place on the evening of April 14, 1998 at 10:39pm.
As a result of these occurrences, Congress, in three attempts, have tried to
protect the rights of the people of America. In 1995, the Senate, led by Foreign
Relation Committee Chair Jesse A. Helmes (R-N.C.), proposed executive withholds
of foreign aid to the country of the diplomat who abused his diplomatic immunity
or privilege. In 1997, Republicans Representatives form California and Tennessee
crafted a proposition to the Department of the State. The proposition entailed
the Department to initially attempt an immunity waiver, and if failed, an
assurance that diplomats accused of misconduct be tried in their home countries.
In 1999, crimes committed by diplomats are addressed in the United States Code
of Service under title 22, Foreign Relations and Intercourse, ch. 38, 2728,
“…the Secretary of State shall prepare and submit to the Congress, a report
concerning diplomatic immunity entitled, ‘Report on Cases Involving Diplomatic
Immunity’.” VI. CONCLUSION The intentions and ideals behind diplomatic
immunity center on the protection of diplomats for the development and endurance
of international relations. Importantly, most diplomats and their countries
uphold the laws of the United Nations Vienna Conventions and their succeeding
acts. U.S. Code 254 under title 22 illustrates such compliance, “Any action or
proceeding brought against an individual who is entitled to immunity with
respect to such action or proceeding under the Vienna Convention…, or any
other laws extending diplomatic privileges and immunities, shall be
dismissed.” Nevertheless, abuses of diplomatic immunity disrupt national and
international order. Misuses of diplomatic immunity and privileges contradict
and undermine the purposes of diplomacy. As diplomats promise to create peace
and establish friendly relations with other countries, an allegiance is made
concurrently to uphold the laws of the land – the land wherever their mission
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