LESSON 17 - DIPLOMATIC IMMUNITY

Hello, thank you for joining me on my YouTube channel. My name is Christiana Sagie. On this channel, I will be teaching about international law, and these teachings will be in the form of short weekly lecture series. Over time, I will be surfacing varied concepts of international law. When and where applicable, these concepts will be analyzed and brought to you as it relates to current trends in international law as they arise. At the end of this lecture, you will find the transcript of the lecture in the link below. Also, for current trend and analysis in international law, you can subscribe to my blog. All the details you will find in the comment section below. For the 17th lecture in this lecture series, we will be exploring the concept of diplomatic immunity. Quite often, and to a large extent, when people think of immunity, it is associated with impunity. In this lesson, we will be unpacking that assumption. In doing that, we will be addressing the meaning and relevance of diplomatic immunity, looking at some international instruments on this issue, and piercing the veil of diplomatic immunity by exploring instances where national courts may exercise jurisdiction over individuals who possess or possessed diplomatic immunity. What is the meaning and relevance of diplomatic immunity? Diplomatic immunity is an international law principle that provides a framework for smooth international relations between states. It does so by limiting the degree to which a foreign government acting within the territorial jurisdiction of another government, which is a sending state, is subject to the legal jurisdiction of the other sovereign government, which is the receiving state. Over the course of this lecture, you will often hear me refer to receiving and sending states. So that we are all on the same pace, let me briefly explain what these terms mean. A sending state is a state that sends a diplomatic mission or envoy to another state to further and foster international relations. On the other hand, a receiving state is the state that hosts the diplomatic mission or envoy. As its basic understanding, diplomatic immunity reinforces the sovereignty of and the equality of nations by ensuring that representing individuals of sending states, diplomatic bags, diplomatic courier, and the consular premises of the sending state are secure and invaluable. It is a regime that ensures that not only are diplomats not susceptible to lawsuits and persecution, but that they are also given safe passage to the receiving states to enable them to perform their diplomatic duties. Diplomatic immunity is essentially aimed at maintaining government relations and allowing for effective job functioning while foreign state representatives are stationed in the receiving states. The area of diplomatic immunity is one of the most uncontroversial fields of international law in all states' interests. It ensures that representatives can function effectively and efficiently without fear of reprisal or being subject to arbitrary standards out of political malice. Having said all this, there are a few points to note. One, immunity is not granted to an individual. It attaches to and is for the benefit of a sovereign state or a granting international organization in cases where international organizations are hosted in a receiving state. Thus, the immunity that a person enjoys can be waived, but only by the sending state or international organization that has been granted the immunity. Not even the individual that enjoys the immunity can waive such diplomatic immunity. Also, a receiving state can expel an individual or diplomat that enjoys diplomatic immunity. Generally speaking, immunity is granted on a reciprocal basis. There are a number of international instruments that touch on the principle of diplomatic immunity. For one, we have the United Nations Charter. For that, you can see article 105, paragraph 2. The Vienna Convention on Diplomatic Relations, VCDR, regulates the relations between receiving and sending states. General Convention on Privileges and Immunities of the UN, GCPR-UN, regulates relations between the UN and receiving states. The Convention on Jurisdictional Immunities of States and their Properties regulates how receiving states are to deal with the sending states' properties. I have provided the hyperlink to this instrument in the transcript below. Next up, we're going to be addressing categories of individuals who enjoy immunity. It is important to note that immunity applies differently among various categories of people. Generally speaking, the following categories of people enjoy immunity in varying degrees. For one category, you have employees of the United Nations, and this excludes locally recruited workers. Under this category, you have senior officials and other employees, such as country members of the United Nations Secretariat. Again, the degree of immunity that senior officials enjoy is somewhat different from the degree of immunity that other employees of the United Nations enjoy. The second category of individuals that enjoy immunity are representatives of member states. Also here, there are two categories, and they enjoy varied degrees of immunity. The first category is the permanent representatives who are ordinarily resident in the receiving states. Then, temporary representatives, such as representatives to conferences and meetings, not ordinarily resident in the receiving states, also enjoy a degree of immunity that is different from what's enjoyed by the permanent representatives. Another category of individuals who enjoy immunity are expats on mission. Having stated all of that, now let's take a look at types of immunity. We did state that the categories of individuals that we have just mentioned enjoy varying degrees of immunity. What does that mean? We'll take a look at the different types of immunity shortly. First off, we do have what's referred to as personal immunity. This is usually attached to heads of states, to senior officials, or state representatives, or diplomats. It is sometimes referred to as broad immunity. These include immunity from arrests or detention, from criminal jurisdiction of the receiving states, from civil or administrative jurisdiction of the receiving states, from search or seizure of their private residence, official premises, their office, papers, personal effects, and personal property. They also enjoy exemption from taxes. The other type of immunity is referred to as functional immunity. This is a somewhat restricted immunity type. It only grants immunity for acts or conducts carried out in the course of duty. It does not extend to anything outside the duties of the individual who enjoys the immunity. Lastly, we have residual immunity. Generally, immunity ceases when an individual leaves the receiving country or at the expiry of a reasonable period of time. Notwithstanding this general principle, individuals may still enjoy immunity for their actions or conducts performed in the line of duty, even though the individual in question no longer occupies a diplomatic office. This is what is referred to as residual immunity, and this has been captured in Article 39.2 of the VCDR. And so, piercing the veil of immunity, we have addressed immunity as a status granted to countries to allow their representatives function effectively in their diplomatic roles. It also transcribes to the respect for states' sovereign equality under international law to the effect that a sovereign nation cannot be subject to the legal jurisdiction of another state. Briefly, I will address some instances where the veil of immunity can be pierced to ensure that individuals can have some accountability or can interact with the legal jurisdiction of the receiving state. For one, Article 31 of the VCDR enumerates instances where there will be no exemption from civil and administrative jurisdiction of the receiving state. They include private property transactions in the territory of the receiving state, secession actions where a diplomat is an executor, hair, or administrator in a private capacity, and professional or commercial activity outside of official functions. Also, the notion of residual immunity provides a lacuna that can be explored or utilized in piercing the veil of diplomatic immunity. This has been explored by the United States Court of Appeal of the Second Circuit. In the case of Sawada versus Al-Awadi, the court stated in that case that once a diplomat becomes a former diplomat, he or she is not immune from suit for prior acts unless those acts were performed in the exercise of the former diplomat's function as a member of the mission. Article 39 sub 2 does not immunize acts that are incidental to the exercise of his functions as a member of the mission. Residual immunity as consistent with the Vienna Convention's purpose of not benefiting individuals but ensuring the effective performance of the functions of diplomatic missions. Also, immunity can be waived by the sending state or international organization, in which case the diplomat loses the covering that immunity offers and can account for any alleged wrongdoing in the municipal court of the receiving state. In summary, we have provided a broad understanding of diplomatic immunity and explained its importance in international relations. We have also debunked the notion that immunity is impunity by offering a few examples of how legal practitioners can reason through diplomatic immunity to demand accountability for wrongful and illegal actions. Remember to engage on here in the comment section on Facebook and Twitter and let us know what content you'd like to see. So, I want to say thank you so very much for joining in and remember to like, share, subscribe, leave your comments in the comment section below and hit the notification bell so that you're notified when there's a new video. Thank you!