A thus, the responsibility needed to be taken

A thus, the responsibility needed to be taken

A Study of Diplomatic Immunities and Privileges I.

Introduction A BriefHistory of Diplomacy II. Related Terms in Diplomacy III. United NationsLegislation A. Vienna Conventions 1961 and 1963 B.

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Foreign Sovereign ImmunitiesAct of 1976 and Diplomatic Relations Act of 1978 C. General Assembly ResolutionIV. U.S. Policy on Diplomatic Immunity V.

Abuses of Diplomatic Immunities andPrivileges VI. Conclusion VII. Appendices VIII.

Bibliography I. INTRODUCTION A Brief History of Diplomacy Sadaam Hussein emerged as “public enemy numberone” because of his blatant disregard to international law and relations, inhis continued hostage hold of U.S. diplomats.

As a result, foreign and nationalsecurity policies had to be enacted to handle the hostile foreign affair.Diplomacy became one of the chief instruments of foreign and national securityemployed in the Iranian hostage crisis and other international conflictspreceding and succeeding. The history of diplomacy can be traced to the intensediplomatic intercourse between ancient Egypt and its neighbors long before 1000BC. Not until the twelfth and thirteenth centuries, however, did diplomacy beginto assume its modern form.

Rules were developed by the Italian city-states togovern the appointment and conduct of ambassadors, and in 1455, Milanestablished the first permanent embassy in Genoa. In the sixteenth century,other European states followed the Italian example and appointed permanentambassadors. Under the influence of sixteenth and seventeenth century writers,such as Hugo Grotius and Alberico Gentili, the privileges of diplomats were moreprecisely defined and incorporated in international law.

The Congress of Viennain 1815 and the Vienna Convention on Diplomatic and Consular Relations in 1961and 1963 defined and redefined, respectively, classes of diplomaticrepresentatives. In the twentieth century, consular and diplomatic services,formerly separate, have been merged in many countries, including the UnitedStates (1924). Diplomacy is the activity of preventing and solving conflicts byrepresentatives, namely diplomats, of two or more states (nations) conversing onrelated controversial issues with expectations toward peaceful agreements. Themost significant catalyst or mechanism used within diplomacy exists asimmunities and privileges. Diplomatic immunity and privilege entails anexemption or freedom from liability or penalty under criminal and national law.

Consular agreements, extraterritoriality, impunity and extradition are termsthat appear frequently throughout the discussion of diplomatic immunities andprivileges. As the established ruling commission over global affairs, the UnitedNations have enacted legislation concerning the diplomatic relations, includingimmunities and privileges. Such legislation occurred at the Vienna Conventionsof 1961 and 1963, along with the passing of the Foreign Sovereign Immunities Actof 1976. As a super power and democratic nation, the United States plays apivotal and influential role in the enforcement of immunity statues. Within itsnational boundaries, the United States follows its policy on diplomatic immunityand privilege, while other nations observe American practices and execute theirown policies.

Consequently, such freedom granted by diplomatic immunity hasresulted in mainstream and high sea foreign cases when diplomats abuse it. Whatbecomes apparent within the study of diplomatic immunity over the last ten yearsis the dilemma placed on participating diplomatic countries when abuse calls forrule and order and thus, the responsibility needed to be taken by diplomats. II.RELATED TERMS IN DIPLOMACY Dating back to the ancient Greeks, a tradition upheldthat foreign emissaries traveled under the protection of Zeus.

In internationallaw, this ideal form of immunity upholds in current diplomatic relations.Immunity was intended to protect diplomats working in unfriendly foreigncountries. As abuse of this exemption system began to occur, once unfamiliarterms grew into commonly used words and practices. Consular agreements the appointment of an official by a government to reside in a foreign country torepresent the commercial interests of its native citizens. Consular agreementsusually beget global negotiations. Extraterritoriality an exemption fromthe application of jurisdiction of law or tribunals. Extraterritorialityrequires federal judiciaries to determine the territorial reach of federalstatutes.

Impunity exemption from punishment, penalty, and harm. Extradition legal surrendering of a fugitive to the jurisdiction of anotherstate, country, or government for trial. III. UNITED NATIONS LEGISLATIONDiplomacy exists as one of the most attention-needed issue on the agenda of theUnited Nations. As an ideal governing body among many countries, diplomacyrepresents one of the main mechanisms encouraged by the United Nations. Two ofthe groundbreaking global fellowships occurred at the Vienna Conventions of 1961and 1963, both of which focused on diplomatic relations.

Consequently, theConferences established and revised rules and regulations in order to govern theissuing of diplomatic immunities and privileges. Although they differ, thediplomatic and consular missions are bestowed similar immunities. In Article 22,paragraph 1 through 3 of the United Nations passed law during the convention,the act sets the two main premises: 1) immunity from search, requisition, legalattachment, or execution; and 2) the duty of the receiving state is to protectthe diplomatic missions. In addition, under the consular mission, an exceptionto the premises may transpire in cases of emergency. Another example of theUnited Nations developing a precedent in the allotment of diplomatic immunitiesand privileges concerns official diplomatic documents. Article 24 and 33 statesthat “records, documents, correspondences, and archives cannot be seized ordetained physically; nor can they be used as evidence in legal proceedings. (SeeAppendix 1, “Comparative Study of Privileges and Immunities of Diplomatic andConsular Missions”).

All foreign officials do not receive full immunity.Levels of immunity are granted on the basis of rank and position within theforeign mission. Along with one hundred and sixty nations, the United Statesagreed to the treaties set during the Vienna Conventions of 1961 and 1963explaining diplomatic practices, including immunity.

Immunity from all criminalprosecution and many civil suits for diplomatic agents and members of theirfamilies illustrates the distinct levels of immunity issued. Embassyadministrations encompass lesser extents of immunity, and consuls appear at evenlower levels of immunity. Immunity only for behavior related to the missionlimits service staff of embassies. A country can expel a foreign diplomat whomit considers undesirable by declaring the diplomat persona non grata. Anotherimportant law regarding diplomatic immunity came in 1976 as the ForeignSovereign Immunities Act.

The act sets two conditions for the service of processon a foreign state and its agencies, intervention or settlement amongst the twoparties. Because the act recognizes sovereign immunity, the process encouragesany breach of contract dismissed due to diplomatic immunity. An incident thathappened in the early 1990s involved a Zaire mission and the Sage RealtyCorporation of New York.

After persistent failure to pay its office space rent,$20,000 monthly, Sage Realty brought a civil action suit to evict the Zairianmission. The Zairians appealed to the Second Circuit Court of Appeals, who ruledin favor of the foreign mission on the basis of the Foreign Sovereign ImmunitiesAct. The ruling concluded, “The Foreign Sovereign Immunities Act states thatthe property of a foreign state in another country shall be immune fromattachment, arrest, execution or eviction.” A related act, the DiplomaticRelations Act of 1978, addresses certain securities, common to citizens, thatdiplomats must take to ensure proper restitution in cases of misbehavior such aspurchasing liable insurance for automobile accidents. A recent form oflegislation attempt appears at the 84th plenary meeting of the General Assemblyof the United Nations. In 1994, the General Assembly proposed resolution 49/49,which sought more protection for diplomats while on missions in other countries.

The resolution “strongly condemns act of violence against diplomatic andconsular missions and representatives, as well as against missions andrepresentatives of international intergovernmental organization and officials ofsuch organizations, and emphasizes that such acts never be justified.”While forbidding any insubordination of international law, the proposal requestsspecial tasks from the Secretary General to maintain an accurate account of allconflicts with international law involving diplomatic or consular immunity. (SeeAppendix 2, General Assembly Resolution 49/49). IV. U.

S. POLICY ON DIPLOMATICIMMUNITIES AND PRIVILEGES In the federal system of the United States, the U.S.

Department of State, headed by the Secretary of State (currently, MadelineAlbright) handles foreign relations and services. Diplomats, trained careerofficials, help implement U.S. foreign policy by representing the United Statesin its relations with other countries and with international organizations. TheDepartment of State maintains embassies, consulates, and trade and culturalcenters in each country with which they have diplomatic relations. Ambassadorslead each U.S.

embassy, and assisted by a staff of diplomats and attaches whohave various functions. The political and economic sections report on U.S.

developments in the host country. The consular section assists its nationalconsuls living or traveling in the host country with commercial and legalmatters and issue visas to local residents who wish to travel to its country.The cultural section promotes the culture of its own country. Diplomatsstationed in a foreign country enjoy privileges known as diplomatic immunity.Hence, they are not subject to local civil and criminal laws and encompass theliberty to communicate with the U.S.

government. Extraterritoriality allows forU.S. embassy buildings and grounds to fall under American jurisdiction. Similarstructures of foreign relations departments appear in many other countries.Because of its democratic federal government system, the United States faces twomajor dilemmas, equal treatment and dual nationality. Realizing that largenumbers of U.

S. diplomats are stationed in many countries with different, lesslenient, executive, legislative, and judicial systems, the Department of Statecautiously deals with diplomatic immunity. “It makes sense…for us U.

S. tomaintain the practice and law of diplomatic immunity because it protectsAmericans overseas,” proclaim Nicholas Burns, spokesman for the StateDepartment in a February 1997 issue of Insight on the News. When foreigndiplomats positioned in the United States break federal or state laws, immunitymust be considered first and foremost, although unpopular among Americancitizens. Failure to recognize diplomatic immunity leaves the nation open tosanctions by the U.N., and especially places overseas U.

S. diplomats in anuncomfortable position to receive maltreatment from the hosting country. As anation of mixed cultures and individuals affixed with a racial designationidentifying ancestral background as well as American citizenship, dualnationality arises as an issue under diplomacy. Dual nationality presentsproblems particularly in nations that consider any descendents of their homelandcitizens regardless of their current residence. For example, in Vietnam,negotiations affecting the erection of a liaison office between Hanoi andWashington, D.C. were stalled.

The intended act was to establish full diplomaticrelations between both nation, but Vietnamese officials refused to agree toterms mandating U.S. notification in the matter that an American diplomat mustbe detained in Vietnam. Assuming the U.

S. diplomat would have Vietnamesedescent, in its disregard of dual nationality, Vietnam resolved not to grantimmunity or respect to U.S. diplomats. While recognizing its dilemmas, theUnited States follows a policy when abuse of diplomatic immunity happens.

With abreach in federal, state, or local laws, the Department of State takes varioussteps to rectify the matter. Firstly, the State Department notifies the nativecountry of its diplomats misconduct and advises a waiver of immunity topermit the appropriate U.S. court to bring prosecution.

If the waiver ofimmunity is denied, the Department orders for the infinite expulsion of thediplomat from American soil. At times, the home country may try the diplomatwithin its judiciary. Civil suits against diplomats often are settled throughmutual settlements.

V. ABUSES OF DIPLOMATIC IMMUNITIES AND PRIVILEGES (U.S.&abroad) Indeed, diplomacy offers a preferred solution to international conflictthan war.

Diplomacy eliminates the mortality and economic costs many countriessuffer when engaged in war. However, on a smaller scale, diplomacy, causes itsown forms of national disruption. Diplomatic immunity grants beyond even whatmany national supreme law documents constitutes. Unlike diplomatic immunity,even the U.S. Constitution does not promise freedoms from prosecution after acrime is committed. Abuses of such near absolute freedom occur, in manyinstances, go unprosecuted, and thus ignites public disdain for internationalrelations.

Abuses of diplomatic immunity situate countries in awkward andadverse dual roles. The state or foreign service departments must act inresponsibility of their duties to maintain international fellowships, but also,show allegiance to the country in which it serves. Cases of abuse diplomaticimmunity and privilege arise abroad and in the United States, each resulting indifferent outcomes. “On July 21, 1994, the District Court (Amtsgericht) ofBerlin-Tiergarten issued a warrant for the arrest of S.

(name must remainanonyomous), the former Ambassador of Syria to the German Democratic Republic(GDR), on charges of having assisted in the commission of murder and thebringing about of a bomb explosion in West Berlin in August of 1983.” Result:The Court concluded that S. had exercised official duties because he actedaccording to orders from his government, regardless of its legality in anothercountry. Therefore, he is exempted from prosecution and granted diplomaticimmunity. “General Augusto Pinochet thwarts a Communist takeover of Chilein the early 1970s and placed the regime in a plebiscite.” Result: The BritishHouse of Lords grants an extradition of Pinochet of Chile to Spain to standtrial for “crimes against humanity”. However, Chileans democraticgovernment contends Pinochet should be immune from persecution and extraditionbecause he was the head of state at the time.

The United States has also facedmany cases of misconduct from foreign due to diplomatic immunity. “GueorguiMakharadze, diplomat from the Republic of Georgia, on January 3, 1997, kills a16-year old girl when driving at 80 mph sets off a horrific five-car crash thatcatapults onto her Volkswagen.” Result: Georgian President Eduard Shevardnadzewaives his diplomats immunity in order for him to stand trial in U.S. federalcourts for second degree murder with a sentencing of approximately 20 years.”In December of 1996, a brawl between New York Citys police and U.

N.diplomats results over a traffic accident. U.N. diplomats said to have beendrunk, while officers are alleged to have been harassing.

In addition, MayorGiuliani claims diplomats owe excessive amounts of money to the City. Moscowmayor Yuri Luzhkov alleges discrimination and harrassment.” Result: Matter issettled mutually between nations. Because of the uproar, U.

S., Russia, and othernations began outlashing one another alleging maltreatment of foreign diplomats.”In 1992, Angel Francisco Breard, Paraguayan diplomat, kills an Arlingtonwoman during an attempted rape.” Result: Because of the brutality and severityof the crime, the Virginian government tried and found him guilty.

Paraguayofficials were not notified of the act, and thus Virginia failed to recognizeany diplomatic immunity. The sentencing was death by legal injection. Secretaryof State Albright attempts to stay the execution, along with a similar appealform the International Court of Justice (ICJ). The Supreme Court rules in favorof the state of Virginia (Breard v. Greene), ruling that the ICJ, the U.

S.federal government, nor the Supreme Court could not order Virginia to stay theexecution. The execution took place on the evening of April 14, 1998 at 10:39pm.As a result of these occurrences, Congress, in three attempts, have tried toprotect the rights of the people of America. In 1995, the Senate, led by ForeignRelation Committee Chair Jesse A. Helmes (R-N.

C.), proposed executive withholdsof foreign aid to the country of the diplomat who abused his diplomatic immunityor privilege. In 1997, Republicans Representatives form California and Tennesseecrafted a proposition to the Department of the State. The proposition entailedthe Department to initially attempt an immunity waiver, and if failed, anassurance that diplomats accused of misconduct be tried in their home countries.In 1999, crimes committed by diplomats are addressed in the United States Codeof Service under title 22, Foreign Relations and Intercourse, ch.

38, 2728,”…the Secretary of State shall prepare and submit to the Congress, a reportconcerning diplomatic immunity entitled, Report on Cases Involving DiplomaticImmunity.

” VI. CONCLUSION The intentions and ideals behind diplomaticimmunity center on the protection of diplomats for the development and enduranceof international relations. Importantly, most diplomats and their countriesuphold the laws of the United Nations Vienna Conventions and their succeedingacts.

U.S. Code 254 under title 22 illustrates such compliance, “Any action orproceeding brought against an individual who is entitled to immunity withrespect to such action or proceeding under the Vienna Convention…, or anyother laws extending diplomatic privileges and immunities, shall bedismissed.” Nevertheless, abuses of diplomatic immunity disrupt national andinternational order.

Misuses of diplomatic immunity and privileges contradictand undermine the purposes of diplomacy. As diplomats promise to create peaceand establish friendly relations with other countries, an allegiance is madeconcurrently to uphold the laws of the land the land wherever their missionresides and their foot trods.Bibliography”And We Are the Law.” The Economist (US). 18 Apr.

1998: 27. “Bad toWorse.” US News and World Report. 20 Jan 1997: 14. Bradley, Curtis A.”Breard, our Dualist Constitution, and the International Conception.”Stanford Law Review 51 (1999); 529.

“Consideration of Effective Measures toEnhance the Protection, Security, and Safety of Diplomatic and Consular Missionsand Representatives,” G.A. res.

49/49, 49 U.N. GAOR Supp. (No. 49) at 288,U.N.

Doc. A/49/49 (1994). “Fact Sheet: Diplomatic Immunity.” US Departmentof State Dispatch 4 (1993): 471. Fassbender, Bardo. “Diplomatic Immunity Vienna Convention on Diplomatic Relations Effect on Diplomatic Immunity onStates Other Than Receiving State.” The American Journal of International Law92 (1998): 74-78. Forbes, Steve. “Like It or Not.” Forbes. 25 Jan. 1999: 32.Frum, David. “Diplomatic Impunity.” Forbes. 26 Apr. 1993: 110 Gould,Jennifer. “Retaliation in Moscow.” The Village Voice. 18 Mar. 1997: 27.Jacobson, Louis. “An Undiplomatic Journal.” National Journal 29 (1997):1045. Kaplan, Refet and Walden Siew. “Immunity No Longer Means Impunity forDiplomats?” Insight on the News. 3 Feb. 1997: 42-43. Kubalija, Jovan.”Comparative Study of Privileges and Immunities of Diplomatic and ConsularMissions.” DiploEdu (1997): 4 pp. Online. Internet.Available: http://www.diplomacy.edu/courses/DIPLOMACY/topics/privileges/immunity_premises.htm.Richards, David A. “The Tenant with Sovereign Immunity.” Real Estate LawJournal 11 (1983): 232-240. United States Code of Service. Title 22. ForeignRelations & Intercourse. Ch. 6. Foreign Diplomatic and Consular Officers.254d. United States Code of Service. Title 22. Foreign Relations &Intercourse. Ch. 38 Department of State. 2728. Whitelaw, Kevin. “WhenDiplomats Break the Law.” US News and World Report. 20 Jan. 1997: 14. Wu,Irene. “Identity Crisis.” Far Eastern Economic Review. 5 May 1994: 32-34.

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