Diplomats treatment in Tanzania. By Johnson Yesaya

 PRELIMINARY

The practice of sending and receiving diplomats between states is not a newly introduced practice, it is an antiquity. States exchanged information and communication through diplomatic agents, international customary law was a legal framework through which diplomats representing their states in a receiving state were treated. There was no specific international instrument governed diplomatic issues until 1815 when the Vienna Congress codified customary rules of International Law on ranks of diplomatic representatives . From this point, the institution of diplomacy continued to develop, United Nations played a great role in developing international relations and diplomacy by codifying new rules and adopting the existed conventions governed diplomatic issues. In 1961, The international Law Commission of United Nations adopted Vienna Convention on Diplomatic Relations . The member states of UN became regulated by this Convention when it comes to diplomatic issues.

To solve diplomatic issues one must understand what it means by saying diplomacy, diplomats, diplomatic immunity, diplomatic officials and staffs. Diplomacy is a profession, activity or skill of managing international relations between states in political, economic and social aspects of life. Diplomacy is done through diplomatic agents who are persons appointed to represent affairs of their home countries on foreign state. To conduct their affairs on foreign land without interference, there is established immunity which exclude diplomats agents and staffs from civil or criminal liability committed within their official capacity. Diplomatic immunity protects diplomats, officers and staffs of diplomatic mission and their families from criminal and civil liability. The immunity granted to diplomats is not absolute, they can be arrested and taken to custody for the offences which goes far to interference national peace and security. 

Diplomats cannot be prosecuted or otherwise forced to appear in criminal court. Nor can they be sued in civil courts, except for their personal (non-official) involvement in certain commercial, real-estate, or inheritance-related matters, or for their separate professional activities.  The diplomats enjoys diplomatic immunity except for the matters done on their personal capacity, diplomats are not prohibited from conducting their personal activities like business or having commercial contracts in the receiving countries,  hence their immunity can be uplifted when they act on their own capacity. Not all employees of the embassy enjoys diplomatic immunity, only foreign staffs, diplomatic agents and their family members enjoys diplomatic immunity. Employees or family members of employees who are permanent residents or nationals of a host country, are not entitled to diplomatic immunity.

OPINION ON THE JURISDICTION OF THE DOMESTIC COURT ON A DIPLOMATIC AGENT

The supreme Court where “X” lodged his suit against “Y” has no jurisdiction to entertain tort or any civil or criminal case against a diplomatic agent unless those civil or criminal wrongs were done under private capacity. Article 31 (1) of Vienna Convention on Diplomatic Relations provides immunity to all diplomatic agents from civil and criminal liability, diplomatic agents can only be liable in civil wrongs relating to, (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission, (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State and (c), an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

A diplomatic agent is not obliged to give evidence as a witness  unless he/she wish to do so, and no measures of execution can be taken against diplomatic agents unless the situation falls within subparagraphs (a), (b) and (c) of paragraph 1 of Article 31. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State,  a diplomatic agent who commits crimes under diplomatic immunity is not secured by the same immunity in his/her home country, he/she may be face charges at home country for the wrongs committed in a receiving country. See Article 31 paragraph 4 of Vienna Convention on Diplomatic Relations .

Family members of diplomatic agents enjoys diplomatic immunity and privileges if they are not nationals or permanent residents of the receiving country and if they form part of the household i.e they live under one roof. See Article 37 para.1 of Vienna Convention on Diplomatic Relations. A family member who is not actually living with a family in diplomatic premises, under one roof, is exempted from diplomatic immunity hence can be arrested, put to custody and being treated as other offenders in a way which do not affect diplomatic mission.

If “Y” was a son of a head of mission, over 18 years old, studying at a local University of the receiving state and living outside diplomatic premises, hence he/she was not entitled to diplomatic immunity. A person without immunity can be arrested and charged in courts of a hosting country.

WAIVER OF IMMUNITY BY A SENDING STATE

In some circumstances where diplomatic agents committed felony against a receiving state, through communication, a receiving state may invoke a sending state to waive diplomatic immunity imposed on a diplomatic agent so as further legal steps can be taken against that particular diplomatic agent. When diplomatic immunity is waived by a sending state or by head of the mission against diplomatic staffs, then the staffs to whom immunity is waived, they can be arrested and charged for the offences they committed. Article 32 of Vienna Convention provides on the waiver of immunity by sending state, the waiver must be express and execution of judgment on a diplomatic agent to whom immunity is waived is not automatic, the waiver of immunity for execution of judgment must be granted so as an execution of judgment can be done upon that particular diplomatic agents. 

PRIVILEGES AND IMMUNITY ENJOYED BY DIPLOMATS

Inviolability of diplomatic premises. A diplomatic mission needs premises to operate, it is a duty of a receiving state to make sure that, diplomatic mission acquires premises for operation, provided under article 21 of the convention. Article 20, 22 and 30 guarantees inviolability of diplomatic premises and residence of diplomats so as they can perform their duties smoothly. The police officers are not allowed to enter diplomatic premises or residence of diplomats without permission of a head of mission. The inviolability rule of diplomatic premises is not absolute, when there is reason to believe that the mission is doing against the purpose of diplomatic mission, hence the officers may forceful enter the diplomatic premises .

Immunity from inspection of personal baggage. The packages used to send letters, documents or articles to a sending state they are protected from inspection. Paragraph 3 of article 27 of Vienna Convention provides that, “diplomatic bags should not be opened or detained”, there is exception to this rule. If there is a clear evidence that, the diplomatic bag is used to commit offence, then the inspection can be done on that bag. Article 36 para 2 of Vienna Convention allows a hosting state to conduct inspection on diplomatic packages if there is reasons to believe that, the diplomatic articles infringes national laws.

Freedom of communication. The diplomatic agents and staffs can freely communicate information to their state without direct or indirect interference. Any form of communication for diplomatic purposes are allowed, this is provided under article 27 of the Vienna Convention. 

Freedom of movement and travel. As any other citizen, the diplomats are given right to move from one area to another area of the same country or another country. The movements by diplomatic agents are subjects to several international and domestic laws and regulations, the movements by diplomatic agents, private or official travels, must not be connected with any illegal activity which is against laws of the hosting state.

Right to worship. The diplomats have freedom to worship their religion in the diplomatic premises and residence, they are prohibited from allowing nationals to attend worship in the diplomatic premises or to preach their religion outside diplomatic premises. Article 3(1) of Vienna Convention provides on the right to worship.

CONCLUSION

Diplomatic immunity and privileges are provided to diplomats as to smoothen the activities of the diplomatic mission. Diplomatic privileges goes to head of the mission, diplomatic staffs and employees, members of the services staff, a private servant and other employees connected direct to a mission or staffs of the mission. Diplomatic immunity and privileges are guaranteed to diplomatic mission but they are not absolute. They can be compromised by a receiving state in some circumstances. Diplomats are required to abide to laws of the receiving states so as to avoid unnecessary misunderstanding between the state.

REFERENCE

BOOKS

Bernhardt R., Encyclopedia of Public International Law Consolidated Edition

Louis Henkin & American Law Institute Staff., Restatement of the Law: The Foreign Relations Law of the United States 

Malanczuk P., Akehurst's Modern Introduction to International state

STATUTE & CONVENTIONS

The Diplomatic and Consular Immunities and Privileges Act[CAP 356 R.E. 2009]

Vienna Convention on Diplomatic Relations of 1961

OTHER SOURCES

Asthana, S., “Functions, Privileges and Immunities of a Diplomat”, available at < https://blog.ipleaders.in/all-about-diplomat/amp/> (accessed 9 July 2021)

Cursio, J., “Little Known Fact about Diplomatic Immunity in Personal Injury Cases”, available at < https://northernvirginia.legalexaminer.com/legal/little-known-fact-about-diplomatic-immunity-in-personal-injury-cases/> (accessed 9 July 2021)

Kacou, A., “what is diplomatic immunity?”, available at < https://www.nolo.com/legal-encyclopedia/what-is-diplomatic-immunity.html> (accessed 9 July 2021).

Bowcott, O., “How does diplomatic immunity work?” The Guardian (Washington DC), 7 October 2019 available at < https://www.theguardian.com/politics/2019/oct/07/harry-dunn-how-does-diplomatic-immunity-work> (Accessed 10 July 2021).