Jeevan Thiagarajah, in Daily News, 8 December 2019, with this title “Fiplomatic Immunity in International Law”
This article is an effort to pull out international and national norms applicable to those working in diplomatic missions and by extension having diplomatic status. Although the emergence of diplomatic protections stretches back to antiquity, they are largely codified into law in the modern era. These protections are based mainly on the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations, with the former regulating conduct with top diplomats such as embassy staff; and the latter lower-rank diplomatic officials.
Vienna Conventions embody centuries old practices followed against foreign missions. Until the medieval ages, protection of foreign envoys was established through religious commands. The church determined foreign representatives’ fates. In the medieval Arab world, similarly, life or death of an envoy was up to the Caliph’s blessing. Middle Age Europe marked the institutionalization of religion-based practice; and the code of conduct with foreign envoys crystallized into principles. This was evident in the case of Bernadino de Mendoza, who took part in a plot against Queen Elizabeth I in England where he served as ambassador of Spain. Instead of being tried before an English court, Mendoza was expelled from the country with the idea that his sovereign should determine the verdict about his deed.
Events in early twentieth century and, later, during the Cold War period paved the way to the adoption of internationally binding rules concerning the protection of diplomatic agents. Tensions between Eastern and Western Bloc states, hostile behaviour against diplomatic agents and premises possibly not only accelerated the adoption of Vienna Conventions but also shaped them.
The early 1960s saw the codification of de facto practices followed for centuries into international law. Until then, the issue had been brought up by the Congress of Vienna in 1815 and the 1928 Havana Convention; however, both acknowledged a partial version of the modern system of immunity and privileges. While the regulations of the Congress of Vienna were limited to simplifications of complex rules of conduct of missions with receiving sovereign state, forms of diplomatic immunity adopted by the Havana Convention were binding only for the Pan-American Union states.
UN Conventions, adopted in 1961 and 1963, have near-universal acknowledgement today. They have constituted the legal base of exemptions for foreign diplomats from the jurisdiction of the hosting state, with varying degrees of immunity provided for officials at different ranks.
For lower-rank diplomats, however, the regime of immunity and privileges is a little different. Consular agents hold a softened version of full diplomatic immunity enjoyed by ambassadors. Consular staff, according to the Vienna Convention for Consular Relations (VCCR), are covered for “acts performed in the exercise of consular functions”, i.e. acts related to their job responsibilities. For instance, a fistfight outside working hours or an action unrelated to a diplomat’s job does not qualify him or her for protection from prosecution.
However, this level of immunity, often termed as “functional immunity”, still covers consular staff for certain types of crime committed during their work environment.
Sri Lanka Diplomatic Privileges Act
The Sri Lanka Diplomatic Privileges Act (No. 9 of 1996) in -Section 2 recognises Application of the Vienna Convention on Diplomatic Relations done at Vienna on April 18, 1961, entered into force on April 24, 1964, as having the force of law in Sri Lanka.
There are a few take aways.
– The Vienna Convention on Diplomatic Relations has the force of law in SL.
– Vienna Convention on Consular Relations and select passages published here are relevant when understanding the context of events recently reported in the public domain about a local staffer in the Swiss mission.
– Within this framework a complaint requires investigation, leading of evidence before a Court for penalties to accrue.
Privileges Act (No. 9 of 1996)-Section 6
Where in any proceedings a question arises as to whether or not any person is entitled to any privilege or immunity under this Act, a certificate under the hand of the Secretary to the ministry of the Minister in charge of the subject of Foreign Affairs, stating the facts relating to such question shall be admissible in evidence and shall be conclusive evidence, of the facts started therein.
Staff from receiving State i.e. local staff
Article 8 .2.Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
Status of correspondence
The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.
Status of Other members of the staff
Article 38. 2.
Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.
Vienna Convention on Consular Relations 1963 ….. (Done at Vienna on April 24, 1963. Entered into force on March 19, 1967)
(e) “consular employee” means any person employed in the administrative or technical service of a consular post;
(g) “members of the consular post” means consular officers, consular employees and members of the service staff;
(h) “members of the consular staff” means consular officers, other than the head of a consular post, consular employees and members of the service staff;
Nationality of consular officers
Consular officers may not be appointed from among persons having the nationality of the receiving State except with the express consent of that State which may be withdrawn at any time
Section II. Facilities, privileges and immunities relating to career consular officers and other members of a consular post
Article 40 -Protection of consular officers
The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.
Article 41 Personal inviolability of consular officers
1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
2. Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.
Article 43 Immunity from jurisdiction
1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
Article 44 Liability to give evidence
1. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.
2. The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.
Article 71 Nationals or permanent residents of the receiving State
1. Except insofar as additional facilities, privileges and immunities may be granted by the receiving State, consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions, and the privileges provided in paragraph 3 of article 44. So far as these consular officers are concerned, the receiving State shall likewise be bound by the obligation laid down in article 42. If criminal proceedings are instituted against such a consular officer, the proceedings shall, except when he is under arrest or detention, be conducted in a manner which will hamper the exercise of consular functions as little as possible.
2. Other members of the consular post who are nationals of or permanently resident in the receiving State and members of their families, as well as members of the families of consular officers referred to in paragraph 1 of this article, shall enjoy facilities, privileges and immunities only insofar as these are granted to them by the receiving State. Those members of the families of members of the consular post and those members of the private staff who are themselves nationals of or permanently resident in the receiving State shall likewise enjoy facilities, privileges and immunities only insofar as these are granted to them by the receiving State. The receiving State shall, however, exercise its jurisdiction over those persons in such a way as not to hinder unduly the performance of the functions of the consular post.