EFFECTS OF DIPLOMATIC IMMUNITY
The need to maintain an even tenor of state relationship, the concept of diplomatic immunity has become one of the most widely accepted and uncotraversial topic of international law. However not all states adhere to the stipulations. As the International Court noted in the US Diplomatic and Consular Staff in Tehran case, the rules of diplomatic law, in short, constitute a self-contained regime, bestowing to the receiving state obligations to be accorded to diplomats including, privileges, immunities and facilities while observing any possible abuse and act on it in line with the means at their disposal.
Drafters of the Vienna Convetion spirited the undisturbed functioning of diplomats from the receiving states authorities observing public order and protect the representatives from any legal proceeding that would hampler their functioning. In The schooner Exchange v M’Faddon, Chief Justice Marshall observed that a diplomat would be unable to function as a representative of his sending state if he was subject to continued appearances in the receiving state’s courts. More recently, two federal district courts have gone so far as to hold that requiring a diplomat to answer to private suits is a form of coercion (Arcaya v Paez) and an unjustifiable interference with the performance of his functions (Bergman v De Sieyes). The challenge faced by the states is to clearly articulate the concept of “all Appropriate Measures” given the opposing factor of immunities.
Diplomats duly appointed are immune to local laws and hence the local authorities are rendered powerless to exercise any authority over them hence causing more social problems. The general understanding is that diplomatic status does not in any way give diplomatic agents permission to violate the laws and regulations of the receiving state and the overwhelming majority of diplomats are indeed law obedient. Occasionally, diplomats have abused their privileged in instances like delayed of unpaid wages for domestic workers, drunk-driving which might cause an accident tend to accumulate disproportional amount of publicity as opposed to other similar cases, where the person concerned is without such special status, and therefore serve to prejudice public attitude toward the practice of personal inviolability and diplomatic immunity. However, there is a tendency of states refraining from serious retaliatory actions as the procedure of appointment, approval, placement and adaption is cumbersome and can lead to distortion of the already established way of performance.
Cases of domestic workers have been considered as irrelevant, not given a serious attention. Mistreatment, underpayment and inhuman living conditions against a diplomat are perceived as a mockery to the unemployed and the police staff in general. The diplomats continue to get protection for the immunity they enjoy and the sending states failure to notice and respond seem to encourage the behavior.
As noted by the German Institute of Human rights, in practice, the diplomatic immunity while dealing with employment contract supersedes the human rights of the employee leading to a de facto-unaccountability and impunity encouraging exploitation.
However, where states feel that the diplomats are really violating their diplomatic privileges; receiving states have taken strict measures against nations of the said diplomats which have had a far reaching negative effect in the international arena.
Examples of the effects of strained diplomatic relations are as follows:-
4.1 It destabilizes the international relations.
As much as there is a need to hold officials accountable for international crimes, there is an equally valid need to preserve immunity ratione personae (functional immunity) accorded to sitting heads of state or government and accredited diplomats. For these reasons, a balance must be struck between the needs of international criminal law and the necessity for immunities. If Article 27 of the Rome statute is to be effective, this balance must be realized.
4.2 Trade sanctions will be imposed.
Trade sanctions have been shown over the years to be ineffective. It may sometimes be better to maintain a dialogue with states which abuse the norms of diplomatic behaviour than to sever all contracts. The number of states who have abused the convention is small and each case would always have to be carefully assessed by Governments directly affected or contemplating sympathetic action.
4.3 Countries which are notorious in the abuse of the Vienna convention will be isolated.
The United Kingdom consulted a number of friendly governments on the problem of diplomatic abuse of immunity prior to the Libyan incident. Those governments indicated that the international community should concentrate on isolating those states which abuse the system. After the Libyan incident, Britain consulted several additional countries in an effort to find sanctions against Libya short of amending the Vienna Convention. Because the British Government believed that the shootings were an isolated incident and that other countries would not support amending the Vienna Convention, Britain focused on isolating countries rather than on amending the Convention. The support of the international community is crucial, for the level of cooperation necessary to isolate a nation that abused the system is extremely high. Specifically, the British proposal called for all the key western states who found abuse of the system repugnant to agree on common action, whatever that might be. The suggested action was to refuse as a group any diplomatic relations with the offending state. This proposal does not adequately consider Europe’s and America’s need for relations with these troublesome nations. Political instability and a tendency towards terrorism do not in themselves always warrant relinquishment of the benefits of diplomatic relations.
EFFECTS OF DIPLOMATIC IMMUNITY