The Floating Bubble: Diplomatic Immunity & The Law of Diplomatic Missions
Shawn Tan Yoong Sern, Vice President (2020/21)
MACRO INSIGHTS 2020/21
Sources of Diplomatic Law
The laws governing diplomatic missions have been customary. An early example of codification is the British Diplomatic Privileges Act 1708 (repealed), where the British Parliament first guaranteed diplomatic immunity to foreign ambassadors in Great Britain. Since then, an influential treaty is drafted by the International Law Commission and was adopted by the United Nations Conference on Diplomatic Intercourse and Immunities in 1961, and is named the ‘Vienna Convention on Diplomatic Relations’ (‘Vienna Convention’). Implemented in 1964, the Vienna Convention seeks to codify the customs and practices of embassies exchange between sovereign States, with an eventual goal of protecting the sanctity of ambassadors to carry out their civic duties as representatives of their home States by granting diplomatic immunity. Hence, it is well put that the Vienna Convention is considered “a cornerstone of the modern international legal order” (Denza 2016, p. 1).
Since its implementation, virtually all member states but Palau and South Sudan have ratified the Vienna Convention, including UN observer states Holy See and State of Palestine. (Vienna Convention 1961) Some countries have further codified the Vienna Convention into national legislation to reflect its international obligations, such as the replaced Diplomatic Privileges Act 1964 in the United Kingdom.
The laws on diplomatic missions have further evolved to accommodate more diplomatic activities, such as the Vienna Convention on Consular Relations (adopted in 1963 following the United Nations Conference on Consular Relations and given effect in 1967) regulating consular practices and allowing consular immunity, the Convention on Special Missions (adopted in 1969 by the UN General Assembly and given effect in 1985) regulating special, temporary state-to-state missions, and the Convention on Jurisdictional Immunities of States and Their Property (adopted in 2004 by the UN General Assembly, pending enforcement as of 4th August 2021) regulating sovereign immunity: the legal protection in which a state is absolved from legal liability in foreign courts.
Despite all the subsequent regulations, the Vienna Convention on Diplomatic Relations continues to be the most authoritative and widely recognised convention for diplomatic missions for the following reasons according to Denza (2016, pp. 1-2). Firstly, the Vienna Convention reflects the customs and practices historically observed, and these practices have not largely changed in the modern era. The inherent function of diplomatic missions - to represent the home country in the host country and protect its interests and its nationals - have preserved for a long time. There may be changes in terms of the governmental systems, trade, travel and communication, but these only minimally affects its main function. Secondly, every state party are effectively kept the other state party in check on the principles of the Vienna Convention by virtue of reciprocity. Since nearly all countries have ratified the Vienna Convention, failure to honour immunities and privileges enjoyed to diplomatic missions risks countermeasures from the host country, causing an unfortunate diplomatic incident. Lastly, the Convention was formed having regard to the need to search for solutions which would be favourable to governments and to national Parliaments as a whole. As Denza (2016, p. 2) puts:
The discourse between the International Law Commission, national governmental experts, and the Sixth Committee of the General Assembly was characterized not by the driving towards any political objective but by attentive listening to criticism and a search for realistic compromise.
What are Diplomatic Missions?
The establishment of diplomatic relations and permanent diplomatic missions is set forth under Article 2 of the Vienna Convention on Diplomatic Relations, which takes place when both states mutually consented to such relations and missions. Subsequently, Article 3 of the Vienna Convention refers to the functions of diplomatic missions, which include, inter alia, representing the sending State in the receiving State, protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law, and promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. Permanent diplomatic missions are also called embassies, which is different from consulates. Consulates do not represent their home country’s diplomatic interests like embassies do, but they offer services for their citizens in the host country, such as emergency services, passport services and legal aid. The practices of consular relations are codified under the Vienna Convention on Consular Relations (1963).
Diplomatic immunity - a legal protection granted to apply to persons exercising diplomatic missions - is explicitly given under Article 31 of the Vienna Convention on Diplomatic Relations. Diplomats enjoy immunity from the criminal, civil and administrative jurisdiction of the receiving State. This indicates that public authorities of the receiving State - the police, armed forces and governmental officials, among others - are not allowed to prosecute these diplomats and diplomats are not susceptible to lawsuits from the host country’s jurisdiction. At the same time, Article 22 of the Vienna Convention (1961) stipulates that the premises of the mission enjoy similar immunity - no agents from the receiving State can enter the mission premises (unless assented by the head of the mission), and the premises, properties within the premises and means of transport are free from search, requisition, attachment or execution by the receiving State’s agents.
Other privileges a diplomat can acquire is that they are exempted from taxation by the receiving State (Vienna Convention 1961, Article 23); they enjoy qualified freedom to move around and travel within the receiving State’s territory (Vienna Convention 1961, Article 26); their couriers (called ‘diplomatic bags’) cannot be searched or detained (Vienna Convention 1961, Article 27); and their private residence and property are treated the same immunity as the mission premises (Vienna Convention 1961, Article 30).
In that sense, it appears that diplomats, their professional exercise of diplomatic missions, and their personal life in the host country have a floating bubble of protection that absolves themselves from the laws of the host country. Nevertheless, the immunity can be waived, but this tends to be given only when the individual has committed a heinous crime, unconnected with their diplomatic role. The steps of waiving an individual’s diplomatic immunity is given under Article 32 of the Vienna Convention (1961), which immunity can only be expressly waived by the sending State, i.e. the government of the home country.
A distinction should be made with consular immunity, which is governed under Article 43 of the Vienna Convention on Consular Relations. Consular immunity given to consuls (employees and officers under a consulate) is a limited form of diplomatic immunity. The privileges and immunities consuls accorded are similar to diplomats - their couriers are not to be searched or seized (Vienna Convention 1963, Article 35); they can move freely within the receiving State’s territory (Vienna Convention 1963, Article 34); they are immune from the receiving State’s jurisdiction of the receiving state ‘in respect of acts performed in exercise of consular function’ (Vienna Convention 1963, Article 43), but their immunity of private residence and property under Article 41 of the Vienna Convention (1963) is not as absolute as accorded to diplomats under Article 30 of the Vienna Convention (1961). Similarly, consular immunity can be expressly waived by the receiving State under Article 45 of the Vienna Convention (1963), or when the consular post has ended, though immunity from jurisdiction still applies (Vienna Convention 1963, Article 53).
Selected Incidents Associated with Diplomatic Immunity
There are some instances where some diplomats abused such immunities and privileges by negligently or maliciously commit crimes which have led to several diplomatic incidents.
Julian Assange’s stay at the Ecuadorean Embassy in London, United Kingdom: this is a special case where Julian Assange, being issued an international arrest warrant by Sweden for allegations of sexual misconduct, was granted political asylum by the Ecuadorean government because of the threat represented by the United States secret investigation against him (Ferran and Bruner 2012). With that regard, the Ecuador’s former president Rafael Correa allows him to stay at the embassy indefinitely (Gill and Woods 2012). British police are not able to prosecute him, as it is contrary to Artcle 22 of the Vienna Convention (1961) to enter the Ecuadorean embassy without the Ecuadorean government’s consent. It is until the Ecuador’s former president Lenín Moreno revoked his asylum in 2019 and invited the police to arrest him (Lardieri 2019).
Yvonne Fletcher’s murder by a person inside the Libyan embassy in the UK: a person inside the Libyan embassy in London shot police officer Yvonne Fletcher in 1984 during a protest. Under the Vienna Convention (1961), British police could not enter the Libyan embassy to prosecute the person. Subsequently, the incident has had the UK severing diplomatic ties with Libya (DeYoung 1984) and expelled them from UK soil. It was only 15 years later that Libya accepted ‘general responsibility’ over Fletcher’s murder and promised compensation, leading to the warming of diplomatic relations between the UK and Libya. (The Guardian 1999)
Japanese Consul-General in Vancouver Shuji Shimokoji’s assault against his wife in Canada: Shuji Shimokoji physically assaulted his wife Kazuko Shimoji in 1999, which he described the incident as ‘a cultural thing and not a big deal’. (CBC News 1999) As the Japanese Consulate-General in Vancouver that time, he gained diplomatic immunity, and he could not be arrested even though an arrest warrant was issued. His comments have caused a public uproar, which led the Japanese Ministry of Foreign Affairs to recall him from his role. He was given an absolute discharge despite pleading guilty in a Canadian court: he serves no jail time and has no criminal record.
Smuggling of tobacco from the Gambian embassy in the UK: in 2014, deputy head of the Gambian Diplomatic Mission in Kensington, Yusupha Bojang, and his colleagues ordered 29 tonnes of tax-free tobacco over three years. Value-added tax (VAT) and excise duty should have been paid because it was sold and not for personal use. The government of the Gambia waived diplomatic immunity for four of the Gambian diplomats, of which they were found guilty by a British court of their smuggling of tobacco, with Bojang and his colleagues observing jail time for a maximum of seven years before deporting back to the Gambia. (BBC News 2014)
A Romanian chargé d'affaires committed vehicle accident against pedestrians in Singapore: In 2009, Silviu Ionescu, the chargé d'affaires in the Romanian embassy in Singapore, committed a hit-and-run accident that killed a Malaysian-born Singapore permanent resident and injured two others. The Romanian foreign ministry subsequently suspended Ionescu from his post in 2010. (TheStar 2010) The Singaporean government contended that since Ionescu was recalled from his post, his diplomatic immunity is waived under Article 39(2) of the Vienna Convention (1961) where it demonstrates the end of diplomatic immunities when the diplomatic post has ceased. (The Straits Times 2014a) As a result, Ionescu was found guilty of manslaughter of the three pedestrians and was sentenced to six years in jail by a Bucharest appeals court in 2014, which the decision was welcomed by Singapore. (The Straits Times 2014b)
The Future of Diplomatic Law
The introduction of the Internet has profoundly impacted the way diplomats gather information and communicate with other diplomats. According to Kurbalija (2013, p. 423), information gathering and communication were two independent activities when the Vienna Convention was drafted: information was gathered, analysed, and preserved in the Ministries of Foreign Affairs’s archives, whereas communication was done in person and primarily via telephone and telegraph. This is why these functions are regulated separately in Article 23 (information, such as archives and documentation) and in Article 27 (communication, such as official correspondence) of the Vienna Convention (1961). Today, there is a clear interplay and overlap between communication and information. Both communication (i.e. transferring data over the internet) and keeping it in a digital archive (i.e. servers in the cloud) are intertwined when data is stored on a cloud server. A potential new provision should, in effect, control both the communication and information components of digital activities in an integrated manner.
The most likely scenario for addressing the issue, according to Kurbalija (2013, p. 423-4), is that the Vienna Convention will be updated to reflect internet-driven developments through a modern interpretation of the current provisions. Another possibility is the adoption of an ‘internet protocol' to supplement the Vienna Convention, which would provide both clarification of existing rules in the internet arena and provisions to regulate new, internet-related issues like virtual representation and the immunities of diplomatic documents stored in a digital cloud.
1) BBC News. (2014). Gambian diplomats jailed for tobacco scam. BBC News [online]. 11 December. [Viewed 4 August 2021]. Available from: https://www.bbc.com/news/uk-30419400
2) CBC News. (1999). Wife-beating diplomat ordered home. CBC News [online]. 4 March. Updated 18 May 2017. [Viewed 4 August 2021]. Available from: https://www.cbc.ca/news/canada/wife-beating-diplomat-ordered-home-1.188071
3) Denza, E., (2016). Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations. 4th ed. Oxford: Oxford University Press.
4) DeYoung, K. (1984). Britain Cuts Diplomatic Ties With Libya, Expels Envoys. The Washington Post [online]. 23 April. [Viewed 4 August 2021]. Available from: https://www.washingtonpost.com/archive/politics/1984/04/23/britain-cuts-diplomatic-ties-with-libya-expels-envoys/b637f680-3451-4a12-8d65-f58dabd3ad18/
5) Ferran, L. and Bruner, R. (2012). Ecuador Grants WikiLeaks Founder Julian Assange Political Asylum. ABC News [online]. 16 August. [Viewed 4 August 2021]. Available from: https://abcnews.go.com/Blotter/ecuador-grants-wikileaks-founder-assange-political-asylum/story?id=17018133
6) Gill, N. and Woods, R. (2012). Correa Says Assange May Stay in Ecuador Embassy Indefinitely. Bloomberg [online]. 18 August. [Viewed 4 August 2021]. Available from: https://www.bloomberg.com/news/articles/2012-08-17/correa-says-assange-may-stay-in-ecuador-embassy-indefinitely-2-
7) Kurbalija, J., (2013). E-Diplomacy and Diplomatic Law in the Internet Era. In: K. Ziolkowski, ed. Peacetime Regime for State Activities in Cyberspace. Tallinn: NATO Cooperative Cyber Defence Centre of Excellence.
8) Lardieri, A. (2019). Wikileaks Founder Julian Assange Arrested in London. US News [online]. 11 April. [Viewed 4 August 2021]. Available from: https://www.usnews.com/news/politics/articles/2019-04-11/wikileaks-founder-julian-assange-arrested-in-london-after-asylum-revoked
9) The Guardian. (1999). Diplomatic links with Libya restored after compensation deal for dead PC's family. The Guardian [online]. 7 July. [Viewed 4 August 2021]. Available from: https://www.theguardian.com/uk/1999/jul/07/lockerbie
10) TheStar. (2010). No immunity for Ionescu. TheStar [online]. 16 April. [Viewed 4 August 2021]. Available from: https://www.thestar.com.my/news/nation/2010/04/16/no-immunity-for-ionescu
11) The Straits Times. (2014a). Heavier jail term for Romania ex-diplomat Ionescu for deadly accident in Singapore. The Straits Times [online]. 14 February. [Viewed 4 August 2021]. Available from: https://www.straitstimes.com/singapore/heavier-jail-term-for-romania-ex-diplomat-ionescu-for-deadly-accident-in-singapore
12) The Straits Times. (2014b). Ex-Romanian diplomat Silviu Ionescu dies: A look back at the hit-and-run case. The Straits Times [online]. 10 . [Viewed 4 August 2021]. Available from: https://www.straitstimes.com/singapore/courts-crime/ex-romanian-diplomat-silviu-ionescu-dies-a-look-back-at-the-hit-and-run-case
13) Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force on 19 March 1967) 596 UNTS 261 (Vienna Convention 1963).
14) Vienna Convention on Diplomatic Relations. (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95 (Vienna Convention 1961).