Vienna Convention Is the Vienna

Vienna Convention

Is the Vienna Convention on Diplomatic Relations and Diplomatic Immunity in need of reform?

The 1961 Vienna Convention on Diplomatic Relations sets accepted rules for diplomatic and consular privileges. It set forth certain immunities that are considered necessary for diplomats to carry out their functions in keeping international peace. Diplomacy makes it necessary for certain individuals and their family to reside in a foreign state (Higgins, 1985). The families of diplomats, administrative, technical, and service staff of embassies and other international organizations have certain immunities from the laws of the state in which they reside.

The increase of awareness regarding the global threat of terrorism and several key cases claiming abuse of privileges under the Vienna Convention have raised questions as to the applicability and role that it should play in modern diplomatic relations. As these questions are raised in international and national court systems, the enforceability and relevance of the Vienna Convention become increasingly clouded. This research will examine the relevancy of the Vienna Convention by examining commentary and case law in an attempt to clarify the role of the Vienna Convention in today's society.

Case Law: Examining Applicability

To determine the relevance of the Vienna Convention, it is important to understand how it is applied when situations regarding immunity arise. The applicability of the Vienna Convention on Diplomacy is complex. It may require the host country to make extreme exceptions to their law (Franck, 1988). This can create tension on many levels of society. The following will examine cases involving diplomatic immunity and the complexities surrounding it.

The concept of diplomatic immunity dates back to the days of the Greek city states when diplomats were thought to be under the divine protection of Zeus (McClanahan, 1990, p. 21). This practice continued into ancient Rome where diplomats who were found to have committed offenses were sent back to their country of origin, rather than being punished under Roman law (Nicolson, 1954). Visiting diplomats were viewed with suspicion in the 16th century. Keeping them safe and free from harm became a key to keeping the peace between nations. Therefore, they were still entitled to the privileges of diplomatic respect and immunity (Denza, p. 229-231).

The first case that will be examined involves a perjury case against Michael K. Deaver. In 1987 U.S. Prosecutor traveled to Canada to issue a subpoena Canadian Ambassador, Allan E. Gotlieb, to testify at Mr. Deaver's trial (Shenon, 1987). He also attempted to subpoena the ambassador's wife, Sondra. A number of foreign officials cited diplomatic immunity in order to prevent their participation in the proceedings (Shenon, 1987).

The key articles in question were Article 22, which states, "The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission." (Vienna Convention on Diplomatic Relations, Article 22). Article 31 states, "A diplomatic agent is not obliged to give evidence as a witness." (Vienna Convention on Diplomatic Relations, Article 31).

Precedent for using diplomatic immunity was established in 1984 when Libyan diplomats used diplomatic immunity to escape the murder of a British policewoman. Upon claiming diplomatic immunity, they were expelled from London, rather than having to face criminal prosecution under British law (Shenon, 1987). It is cases such as these that raise questions as to whether the Vienna Convention is suitable for today's diplomatic environment.

The CIA claims that agencies use diplomatic immunity to shield foreign spies in the U.S. (Shenon, 1987). The real question in this case is if the Vienna Convention undermines itself by allowing practices that are against the primary principles laid down in the treaty: the preservation of peace (Tunks, 2002). When diplomatic immunity is used for one's own personal gain, it weakens the ability to the Vienna Convention serve as a means to promote diplomacy.

In a 1985 case, the United States invoked diplomatic immunity and recalled an American diplomat and family members from London. The husband of the diplomat was accused of "gross indecency" with a child in the UK (Shenon, 1987). In this case, the couple was able to escape criminal prosecution that would have been expected for any other citizen in the UK. Nothing is known about whether the "gross indecency" actually occurred because the case was never prosecuted and never went to trial.

In February of 987, an ambassador from Papua New Guinea returned home after he killed a man while driving intoxicated (Shenon, 1987). He escaped prosecution by using diplomatic immunity. In 1982, a Brazilian ambassador's son shot and injured a bouncer at a nightclub. He returned home without having to stand trial for the incident (Shenon, 1987). There is even a documented case where an ambassador's dog escaped the consequences of biting several neighbors by means of his owner's diplomatic immunity (Shenon, 1987). These cases highlight the potential for misuse of the privileges under the Vienna Convention to get away with real crimes in the country of residence.

Article 29 states that, "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention" (Brownlie, 1995, p. 226). The general wording of this article, like many others contained in the treaty can be generally applied to nearly every circumstance. Ambiguities in wording such as this leave the door wide open for misuse. It is assumed that ambassadors and diplomats will act in a manner that is respectful of the country in which they reside. It is expected that they will be of high moral standards and that they will hold their relatives to the same high standards. However, as we have seen, this is not always the case.

The Vienna Convention and Terrorism

Abuses of powers under the Vienna Convention such as those described in these cases raises concern that the Vienna Convention could be used to promote terrorism or to avoid justice for planned acts of violence. In certain areas of the world, human rights and civil rights are not as highly protected as in countries such as the United States or the UK. Diplomats may be at considerable risk in other countries. For instance, in certain countries it is against the law to speak out against the government or against the leadership that is in power. It is possible for a diplomat to be arrested under the law and be unable to fulfill his or her duties. This was the key reason for the drafting of the Vienna Convention on Diplomacy.

The prevalence of terrorism on the global level that we see today is different from the world that existed when the Vienna Convention on Diplomacy was first ratified. World Travel was not as accessible and the communications were not in place to connect virtually anyone, anywhere. This connectedness has created a world where the global community is more aware of the problems that plague each other. They are also more aware ease of commission of acts of terrorism that exist today as a result of the ability of technology to connect us like never before. Maghalhais and Pereira, (1988) argue that direct communication makes this type of communication obsolete.

Foreign consulates have traditionally issued identification cards for nationals residing in the United States. Recently, Mexico and other foreign consulates have been freely issuing these ID cards for illegal aliens (Elsea and Garcia, 2005). The U.S. has argued that this practice creates a considerable breach of security, as it is difficult to verify the identity of the holder of the card (Elsea and Garcia, 2005). This card allows the holder the ability to open a bank account, or conduct many other forms of business.

One of the key concerns in the Post-9/11 world is the practice of using the privilege of the diplomatic bag as a means to carry out acts of terrorism. Attitudes regarding the ability to hold a dictator accountable for his actions outside of his own country were considered to be stepping out of bounds. However, attitudes regarding this concept have changed in light of increasing global terrorism (Waltz, 2001). Muslim countries treat non-Muslim emissaries with deep respect, despite religious differences (Mottahedeh, 1980). When the other diplomatic partner refuses to reciprocate, it causes a division among the parties.

Problems of Interpretation and Enforcement

The Vienna Conference on Consular Relations of 1963 expanded on the Vienna Conference on Diplomatic Relations by clarifying and placing certain restrictions on the language of the former document. For instance, VCCR art 43 (1) declares that a diplomat cannot be placed under arrest for functions performed as a part of their office, but it clearly states that they can be punished for crimes that were committed in their private lives (Vienna Convention on Consular Relations, Article 43, Subpart 1). This is where many abuses of diplomatic immunity go awry. They may be allowed, or simply not addressed under the VCDR, but they are addressed in the VCCR. Diplomatic immunity does not extend to one's personal life and diplomats must follow both treaties.

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).