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The VCCR clarifies the VCDR and limits the diplomatic immunities in such as way that should prevent abuses. The problem is enforceability. Many law enforcement officials on a local level are not familiar enough with the particulars of both documents to make a proper judgment. They are aware of diplomatic immunity, so in order to avoid making a potential mistake, they will not arrest someone who has any type of diplomatic immunity. It is not that diplomatic immunity under the VCDR allows diplomats and their families to commit crimes and get away with it. The principles contained in the Vienna Convention were in place as customary procedure even before the Vienna Convention was codified (Uribe, 1997). Nations do not have to maintain consulars and embassies, this practice is optional (Gross, 1980).
The International Court of Justice (ICJ) is the authority that is responsible for decisions regarding whether a country violated the VCDR or the VCCR. In 2006, Dominica filed proceedings against Switzerland for refusing to recognize Mr. Roman Lakschin as Dominica's Ambassador to the United Nations Office in Geneva. The problem arose because Mr. Lakschin was a naturalized Dominican citizen, but was originally of Russian nativity (Hilaire, 2006). Dominica asked that the ICJ acknowledge that Switzerland had violated the Vienna Convention of 1961. Switzerland stood on clauses within the convention that give it the right to reject the accreditation of any person claiming diplomatic privileges. In this case, the ICJ determined that Switzerland had acted within its rights in rejecting the credentials of Mr. Lakschin as a Dominican representative (Hilaire, 2006).
This is an important case, in relation to the argument that the VCDR is not applicable in modern times. When one considers the cases where individuals blatantly misused their powers of diplomatic immunity, it appears that the problem did not lie within the VCDR itself, but rather in the ignorance of local level, authorities to invoke the proper authorities to have the person declared "persona non grata." This means that they would be responsible for their crimes and could be asked to leave the host country. These breaches should have been prosecuted under international law, had authorities knew proper procedure. The problem with enforceability is that local level law enforcement is typically not well-versed in the complexities of international law, as dictated by the ICJ. The problem is not with the Vienna Convention itself, but with the ability of local level law enforcement to interpret and apply it to a particular case.
Under the Vienna Convention of 1961 a diplomatic bag cannot be opened or detained. However, in 2000, the personal bags of a Turkish Ambassador were detained and opened as he attempted to leave the Congo and return to his home country (Vasquez, 2000). It was found that his bag contained ivory, which is illegal to export from the Congo under CITES (Vasquez, 2000). The Turkish ambassador attempted to avoid prosecution, claiming diplomatic immunity, but it was denied because the bag was his "personal" bag, rather than a diplomatic pouch (Vasquez, 2000).
This case further clarifies the distinction between personal and diplomatic luggage, etc. A terrorist who tries to claim diplomatic immunity for their personal luggage will fall under the same rules as any other person leaving or entering a country (Crawford, 1981). Diplomatic immunities are more limited in transit, than when they arrive at their destination (Vasquez, 2000). It is not likely that the diplomatic bag could be used to commit terrorist activities, as it is considerably limited in size, and would be tracked more closely than other luggage. The convention has special provisions for the arrest of a diplomat who is found to be abusing their privileges.
The VCDR clearly spells out the conditions under which diplomats have immunity. When they are on a personal mission, one that is not sanctioned by the state, they do not have diplomatic immunity while traveling overseas (Falun Dafa Information Center, 2003). When a diplomat travels to another nation for personal matters, they can be arrested and detained for crimes committed, as was the case when Luo Gan traveled to Iceland and faced accusations of genocide (Falun Dafa Information Center, 2003). Immunities are extended to specialty attaches, while on a diplomatic mission (Feltham, 1980), but this was not the case in this circumstance.
Under the Vienna Convention detainees are afforded the right to contact their consulate. One of the key criticisms of recent actions of the United States in the War Against Terrorism is that they denied detainees at Guantanimo Bay access to their consulate (Human Rights Watch, 2005). Under the terms of the Vienna Convention, if claims are proven credible, then the same action can be taken against Americans being held abroad. Denza (1998) feels that the Convention stabilized diplomatic law, but cautions that diplomats often have an influence on the affairs of their host state, particularly where human rights are involved.
This was a clear case where diplomatic immunity did not protect someone who had diplomatic immunity in some cases. Diplomatic immunity is not universal and activities must meet strict criteria to fall under the protections afforded by the VCDR. These conditions were tested in the matter of the Republic of Suriname on behalf of Etienne Boerenveen. Mr., Boerenveen was a diplomat for the country of Suriname. However, at the time of his arrest for conspiracy to traffic heroine, he was on a mission to conduct business, but not on an official mission for the government (USDOJ, 1987). He was tried for his crimes under the laws of the United States and was not granted diplomatic immunity, as his activities did not qualify for immunity under the VCDR.
The VCDR is general in its narrative form, but is codified by case law. Our examination of the VCDR and its clarification in VCCR, would at first find it to be lacking in its ability to prevent abuses. One can find any number of cases where diplomatic immunity and other privileges afforded by the convention have been abused. There are a number of cases where diplomatic immunity allowed a criminal to escape prosecution for legitimate crimes. However, in many of these cases the error was not found in the articles of the convention, but in a lack of knowledge by local law officials. The U.S. court system has determined that violations of the U.S. Of diplomatic immunity should be handled through political, rather than law enforcement channels (Drinan, 2002).
The VCDR is necessary and when properly applied, is adequate in its ability to protect the citizens of a country from crimes arising from its abuse (Swaine, 2002). Diplomatic immunity does not allow diplomats to ignore local laws (Higgins, 1985). The VCDR does not allow the use of diplomatic immunity to commit acts of terror, drug trafficking, or other blatantly criminal activity. Some of these issues may need to be clarified in light of the changing global perspective. However, many of the issues that are found to be lacking can be clarified through amendments. Local law enforcement needs to be better informed as to the limitations places on diplomats and their assigns so that they can apply the law and avoid being intimidated into improper actions.
In 1985, the Secretary of State for Foreign and Commonwealth Affairs announced that he was instituting a review of the Vienna Convention (Foreign Commonwealth Office, 1985, p. 5). The key point of contention was the Convention's operation and enforceability under certain circumstances. Issues of abuse of privileges also sparked this review. National governments cannot amend the Convention, but they can pass laws that place certain restrictions on diplomats within their borders, as long as the laws do not violate the Convention itself (Foreign Commonwealth Office, 1985, p. 5). Interjuristictional problems are to blame for many procedural faults that lead to abuses of diplomatic powers (Young, 2005).
Different governments interpret diplomatic immunity in a variety of ways (Byers, 2004). What is considered an abuse of power by some governments might not raise eyebrows in another. Considering the differences between sovereign nations, the Convention dictates the nations shall not judge one another, but rather have the right to their own opinion (Caron, 1991).
The VCDR is still relevant in modern times, and for the most part is adequate to facilitate acts of diplomacy. Advances in communications and ease of travel have meant more direct communication between leaders. They do not always send an emissary in their stead today (Plitsche, 1984).Watson agrees that diplomats are of declining importance in state affairs (Watson, 1983). Problems occur when the conventions of the VCDR are taken lightly and diplomatic privileges are given to those that do not meet the criteria set forth by the convention, as is the case currently under question where three members of non-governmental agencies have requested diplomatic immunity as representatives of Sri Lanka (De Silva, 2007). These members are suspected to be a threat to public security and if granted diplomatic immunity would have a free ticket to carry out their agendas (De Silva, 2007).…[continue]
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