This paper will critically discuss the protection which is offered to diplomatic missions. At its focus we are asked to consider the recent issue that has arisen with certain countries refusing to pay the London Congestion Charge as they believe it to be a tax from which they are immune. The first of this paper will therefore consider the problems that this raises in relation to immunities, privileges and bilateral treaties. The second half of the paper will consider the protection that is afforded to diplomats generally. It will be concluded that generally the law relation to diplomatic missions is sound and that it adequately deals with issues arising in relation to diplomatic missions. In addition it will be stressed that the reason that the law operates successfully is not because of the strength of the law but because of the reciprocal nature of the diplomatic relations and the desire to maintain relationships as between nations.
Despite advances in technology the law on diplomatic protection is regarded as being of fundamental importance to the fostering and maintenance of international relations. The law relating to protection offered to diplomatic missions governs the conduct of relations between representative organs of a state operating within the territory of another state and the receiving state. Its purpose is to “facilitate international diplomacy, balancing the pursuit of the foreign policy interests of the sending state with respect for the territorial sovereignty of the receiving state.” (Higgins) The law is contained, primarily within The Vienna Convention on Diplomatic Relations which came into force on 24 April 1964 (“convention on diplomatic relations”) and The Vienna Convention on Consular Relations which came into force on 19 March 1967 (“Convention on consular relations”). The convention on diplomatic relations has been described as a “landmark of the highest significance in the codification of the international law”. (Silva, 30) The preamble to both conventions states that agreement on privileges and immunities contributes to the development of friendly relations “irrespective of differing constitutional and social systems” and that privileges and immunities are not intended to “benefit individuals but to ensure the efficient performance of functions.”
Persons covered by some degree of immunity are defined in what is essentially a list of terms for as McClanahan points out “in practice it is up to the defending state to give titles to its personnel at a mission, subject only to acceptance of those titles by the receiving state”. (McClanahan, 45) Consular convention articles 40 through 52 covers the immunities and exemptions of consular officers and staffs, which are much more restricted than those of diplomatic staffs.
Diplomats enjoy a wide range of privileges and immunity, and whilst the two terms are interchangeable a distinction should be drawn. Satow explains the distinction between an immunity and a privilege as not being easy to define but that in general “a privilege denotes some substantive exemption from laws and regulation such as those relating to taxation or social security, whereas an immunity does not imply any exemption from substantive law but infers a procedural protection from the enforcement process in the receiving state” (Satow, 151)
The newspaper article that is the subject of this assignment deals with the issue of non-payment of the congestion charge. This article raises a number of issues in relation to the protection that it is offered to diplomatic missions which are worthy of further discussion. The first issue appears to be whether or not the congestion charge is a tax or a charge for service. The reason that it is important to distinguish between the two is because of the different treatment given in relation to each of them. Under Article 23 of the convention on diplomatic relations, the premises of the mission are “exempt from all national, regional or municipal dues and taxes… other than such as to represent payment for specific services rendered.” The several reasons for this exemption from taxation namely that it is impossible to collect taxes as the state and officials are immune from prosecution, equality and dignity of states, financial self-support and independence of states and the promotion of friendly and mutually beneficial relations between states. (Lee, 540)
If the congestion charge is not considered to be a tax but is in fact considered to be a charge for a service the issue that then arises is how the transport for London can enforce payment of the charge. The reason that enforcement is problematic is because diplomatic immunity provides consular officials and their families with protection from prosecution or lawsuits in their host country. The law on protection from prosecution and/or lawsuits is set out in Articles 37- 39 of the convention on diplomatic relations. Article 37(2) deals with the immunity from civil and administrative jurisdiction of administrative and technical staff and says that it “shall not extend to acts performed outside the course of their duties”. Article 37(3) gives service staff “immunity in respect of acts performed in the course of their duties”, Article 38(1) states that where a diplomatic agent is a national or permanent resident of the receiving State that he will enjoy immunity “in respect of official acts performed in the exercise of his functions” and under Article 39(2) where the functions of a person enjoying immunity have come to an end, immunity continues to subsist “with respect to acts performed by such a person in the exercise of his functions as a member of a mission”. (Brown)
The USA has refused to pay the congestion charge as they say that they have entered into a bilateral agreement with the UK. This bilateral treaty deals specifically with the issue of the congestion charge. Countries are free to agree bilateral agreements as between themselves which deal with the degree of specific immunity and where these agreements extend much greater immunity than they will override the provisions of the convention. This is dealt with specifically within Article 73 of the convention on diplomatic protection which expressly recognises the right of states to conclude “international agreements confirming or supplementing or extending or amplifying” the convention’s provisions. In addition to this the UK and its treaty partners have agreed that “where a bilateral convention accorded [consuls] a lower standard of privilege or immunity, the Vienna scale of privilege or immunity should be accorded.” Those affected thus “enjoy the higher immunities set out in the Vienna Convention and the higher tax privileges specified in the bilateral consular convention” (McClanahan, 45)
Despite the privileges and immunities that diplomats enjoy there is still a duty on diplomats to “respect the laws and regulations of the receiving state. They also have a duty not to interfere in the internal affairs of that State.” Privileges of diplomats are linked to their mission by reference to Article 43 of the convention on diplomatic relations. The article is worded to make clear that diplomats must obey internal laws but that this is “without prejudice to their privileges and immunities”. This would appear to mean that abuse of a privilege by a diplomat does not result in the loss of that privilege. It is suggested that the reason for this is to protect the diplomat from any attempt by an unscrupulous receiving state to fabricate evidence and promote a case with the object of securing some type of advantage. It is difficult to conclude whether the omission of this has lead to an increase in abuse of privileges by diplomats. Where there has been a gross abuse the receiving state is entitled to expel the individual or to end the diplomatic relations completely.
Diplomats require these immunities, privileges and protection for a number of reasons. Turning our attention to protection generally the reason that this is required is because diplomats are often viewed with suspicion and on occasion’s hostility and this necessitates the inviolability of diplomatic missions. The general protection afforded to diplomats can be described as two-fold. Firstly there is an obligation on the state not to interfere with the premises or person of the mission and secondly to ensure that no other member of the public interferes with the diplomats premise or person. (Article 29).
As we have seen the inviolability of the premises encompasses two protective rights namely prohibition on entering the premises of the mission and a duty to protect the premises. The first of these rights is absolute and means that even if the receiving country suspects impropriety on the part of the diplomat they still have no right to enter the premises. At the led up to the enactment of the convention on diplomatic relations most states agreed that the right should be unqualified to prevent malicious receiving states from abusing the position. The second right imposes a duty on the receiving state to protect the diplomats premises. This is described as a special protection and means that the receiving state must do more for the protection of a diplomat than it would normally do to ensure public order. (Vark) Although it should be recognised that this is not an absolute duty and “all appropriate steps” means that all measures should be proportional to the risk and dangers that put the diplomat or his premises at threat. (Satow)
Inviolability of the person has been described as “the cornerstone of diplomatic law”(Vark) and was present in international law long before the enactment of the convention on diplomatic relations. Again there are two aspects to personal inviolability and namely that a diplomat should not be subjected to any form of arrest or detention and that the receiving state should treat the diplomat with due respect and take all appropriate steps to prevent any attack on his person freedom or dignity. Personal inviolability as with protective inviolability is unqualified. There is no definition within the convention on what is meant by all appropriate steps, however it is assumed that as with property inviolability it will amount to simply what is appropriate in any given circumstance and that the duty will be breached where a diplomat himself feels threatened.
A final protection enjoyed by diplomats is the freedom of movement. This is essentially the ability to move freely within the territory. Protection of the interests of the nationals of the sending state is likely to be hindered without the granting of this freedom. The absence of this freedom would prevent diplomats from assessing developments and conditions in the receiving state. There is some qualification to this right and these relate to the movement into areas which are prohibited or regulated for reasons of national security. Some argue that by placing this restriction on the freedom of movement that it renders this right illusory. (Vark)
This paper has provided a very brief and critical overview of the privileges, immunities and protection that diplomats receive, the subject is broad and it is difficult to point to all the strengths and weaknesses of the current law. What is clear and a theme of all the literature in this area is that the law in this area is sound for the most part. The reason for this is that almost all countries obey these rules because the benefit is reciprocal and it is not generally in their interest not to. Therefore it is argued that the motivation to follow the law is the strength not the actual convention. Furthermore the convention represents customary practices that have been followed for very many years. As with every rule there are exceptions and the convention charge is one of them, the law has failed to address this issue and suggests some ambiguity in the wording of in the text of the convention on diplomatic relations. With state and diplomatic immunity it is impossible to enforce the payment of the congestion charges and similar problems have arisen in New York in relation to parking tickets. (Fisman & Miguel) The solution is not clear and it is hoped that the desire to maintain relationships will outweigh the desire not to pay the congestion charge or parking tickets.
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- Brown J, “ Diplomatic Immunity: State Practice Under the Vienna Convention on Diplomatic Relations”, International and Comparative Law Quarterly 37(1), (1988) 53-58
- Fisman R & Miguel E, “Cultures of Corruption: Evidence from Diplomatic Parking Tickets”, National Bureau of Economic Research (2006)
- Higgins R, “The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience”, The American Journal of International Law, Vol 79, No 3 (1989) pp 641-651
- Lee T. Consular Law and Practice Second Edition. 1989
- McClanahan G. Diplomatic Immunity: Principles, Practices and Problems Georgetown University, Washington, 1989
- Satow. Guide to Diplomatic Practice. Fifth Edition 1989
- Silva E. Diplomacy in International Law Leiden,1972
- VarK R, “The Siege of the Estonian Embassy in Moscow: Protection of a Diplomatic Mission and Its Staff in the Receiving State”, Juridca International XV (2008)
 A copy of the Treaty can be viewed at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf