Immunity from Sate Jurisdiction

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International law specifies that 'the jurisdiction of a state within its territory is complete and absolute'. However, it is identified that certain categories of persons and bodies acting in the public interest are entitled to immunities and privileges from the exercise of the State jurisdiction.

In April 1984 WPC Fletcher, a British policewoman was killed, as a result of shots being fired from the Libyan Bureau. The incident created great anger and it was asked by many as was whether the Libyan diplomats were immune from being tried in the United Kingdom courts and the abuse of such privilege granted to diplomatic persons. This also prompted the British Foreign Secretary to review of the Vienna Conventions, which grants such immunities.

As a result of this the Foreign Affairs Committee had compiled a report, following this initial report, the United Kingdom Government produced a White Paper. The main objective cited in the paper was to reduce the abuse of the diplomatic immunity and the privileges that came with it.

In response to the detailed recommendations made by the Foreign Affairs Committee, the Government stressed that any attempts at trying to make amendments to the Vienna Conventions was fraught with difficulty, instead the need to apply the Convention in a firm manner was more realistic. It was further stated that the new policies to restrict the abuse of immunities would be more appropriate.

The Government's conclusions included, that it was ready to 'scan bags and to record their weight and size where there are specific grounds for doing so but as a matter of routine.' It was also agreed that ' the Government has clarified the guidelines on breaches of criminal law by diplomats and their families and the criteria for dealing with them. More stringent standards are being applied.' Therefore the possibility of expelling diplomats from the country if in breach of criminal law was available as an option for the host State if needed. The relationship between persons enjoying immunities and privileges and the host states is accentuated in Article 41 of the Convention, in which it confers that all persons enjoying immunity and privileges to respect the laws of the host state. The position of the diplomat is also seen as that he is under 'duty to observe that law and assume a relationship towards the state of his residence which is sometimes referred to as 'temporary allegiance'.

The ambiguity of the law in this area is due to the problems in the interpretation of Article 7 of the Geneva Convention on Diplomatic Relations, which will now be explained. Article 7 states, that the 'sending State may freely appoint the members of the staff of the mission'. It is apparent by the quotation, that the lack of imprecision leaves an opportunity for possible abuse.

Firstly, an issue that was raised was that the Vienna Convention does not contain an objective definition of staff categories. It was argued that the present provision, which relates to fact ...

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Firstly, an issue that was raised was that the Vienna Convention does not contain an objective definition of staff categories. It was argued that the present provision, which relates to fact checks, that usually have to relate to questions relating to nationality, residence and family status, were seen as insufficient. Moreover, the Convention failed to provide a definition of “members of the family forming part of the house hold.” It was further agreed that, in situations where reappointments were in process, there is a need for some form of notification of the new appointee(s) by the sending state.

The White Paper also identified that in some situations the Governments must be vigilant in trying to act before any incident or offences take place. Therefore the governments must be ready take the decision to limit the size of the mission where there is some concern as to the national security or such grave offences waiting to be committed. It is claimed by the Foreign Affairs that the behaviour at the Libyan Bureau was of a suspicious nature and the UK Government had failed to exercise their right under Article 11. It also realised that the quantity of the mission personal was at times greater to that of the UK's mission personnel. Therefore open to abuse, such as spying or even more threatening could lead to terrorist acts, all of which were seen as connected to over sized missions. An example of a state acting against suspicious size of missions, can bee seen in the case of the Soviet Embassy in 1971, where Specific ceilings where placed upon the Soviet Embassy, after the banishment of 105 Soviet officials for 'inadmissible activities'

The White Paper further stated that it was agreed by the Government that individuals who do not act in their professional capacity and act irresponsibly as diplomats, by disrespecting the laws of the receiving state should 'lower the ceiling' as in the case of the Soviet officials. In correlation to this, article 1 of the Convention, stipulates that there should be an exhaustive list of those with the protection from international law, and not everyone who is in that mission.

In addition to this problem of, a mission's premise is seen as inclusive of the immunities that are available to the mission. ' The premises of the mission shall be inviolable. The agents of the receiving state must not enter them. The receiving state is under a special duty to protect the premises of the mission against intrusion or damage…'

In addition to such immunity, the mission is given further privileges in relation to any criminal offences committed by any member of the mission. Under article 31, ' a diplomatic agent shall enjoy immunity from criminal jurisdiction of the receiving state'

It might appear as though the members of the mission are immune from any punishment for any wrong doing or breaching the laws of the receiving state. However article 32 of the convention allows for the revoking of the immunity of a diplomatic agent who consistently breaches the law of the receiving state, including the misuse of the mission premises.

The Diplomatic and Consular Act 1987 was introduced in order to counter the problem of the abuse of diplomatic premises by the diplomats, as was the case in the past where the diplomatic premises might have been open to abuse, for illegal activities, this is best illustrated in the case of the Soviet Embassy in 1971. The requirement of the act was that the consent of the Secretary of State for Foreign Affairs was needed in order for the land to became the premises of diplomats or used as Consular premises. It was also implemented as a means to eradicate any problems, which may arise from the abandonment of the premises, by the members of mission.

Diplomatic immunity and privileges are granted by the Convention on acceptance of the host state. However it is under the same convention that any abuse of such immunities and privileges by the diplomat (s) is dealt with in accordance with the norms of natural justice. In sum, the killing of WPC Fletcher was the catalyst in brining about to the attention of the UK government that there was a need to for reviewing the Vienna Convention, which was open to abuse by those who are given immunity and privileges by international law. Also the need to be vigilant, so that to act before any serious crimes are committed, such as keeping the size of the mission to a reasonable and required number and guarding against the misuse of diplomatic premises, to avoid the tragedy that resulted in WPC Fletcher losing her life.

Bibliography

Books

Brownlie, I. Principles of Public International Law, 4th Ed, Clarendon Press, Oxford 1990.

Cassese, A. International Law, Oxford University press, Oxford 2001, pg 90

Dixon, M. Textbook on International law, 3rd Ed, Blackstone Press, London, 2001

Hillier,T. Principles of Public International Law, 2nd Ed, Cavendish Publishing, London, 1999.

Other Sources.

Higgins, R. UK Foreign Affairs Committee Report on the Abuse of Diplomatic Immunities and Privileges: government response and report 80 A.J.I.L (1986) pg 135.

Hackworth, Digest of International Law, (1953) Vol 5, at pg 471-472.

Statute

Diplomatic and Consular Act 1987.

Conventions/ Declarations

Vienna Convention on Diplomatic Relations 1961.

The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience (1985) 79 AJL 641.

CMD.9497,MISC.NO.5 (1985).

Dixen, M. Textbook on International Law, BlackdStone Press, London, 1997, pg 121.

Vienna Convention on Diplomatic Relations 1961. Hereafter referred to as the Convention.

The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience (1985) 79 AJL 641.

CMD.9497,MISC.NO.5 (1985).

Higgins, R. UK Foreign Affairs Committee Report on the Abuse of Diplomatic Immunities and Privileges: government response and report 80 A.J.I.L (1986) pg 135.

Para 53&56 of white Paper CMD.9497, MISC.NO.5 (1985).

Para 67-71 of white Paper CMD.9497, MISC.NO.5 (1985).

Vienna Convention on Diplomatic Relations 1961.

Hackworth, Digest of International Law, (1943), Vol.5, Pg 471-472.

Article 15 of the Vienna Convention.

Article 31(1) of the Vienna Convention.