Copyright (C) 1986 the Board of Trustees of Leland Stanford Junior University

Copyright (c) 1986 The Board of Trustees of Leland Stanford Junior University
Stanford Law Review

July, 1986

38 Stan. L. Rev. 1517

LENGTH: 13065 words
NOTE: Insuring Against Abuse of Diplomatic Immunity.
NAME: Leslie Shirin Farhangi
SUMMARY:
... The Vienna Convention on Diplomatic Relations regulates diplomatic privileges and immunities. ... The exterritoriality approach to diplomatic immunity adopts the legal fiction that a diplomat is always on the soil of her native country, wherever she may actually go. ... The provisions relevant to the problem of abuse of diplomatic immunity concern the diplomat, the mission, and diplomatic correspondence, known as the "diplomatic bag." ... Abuses of diplomatic immunity fall into two broad categories: the use of the diplomatic bag to smuggle illegal goods into or out of the receiving state, and crimes committed by the diplomats themselves. ... Perhaps the most well known is the shooting of a British policewoman in St. James' square by an unidentified assailant who was within the Libyan Embassy in London in April 1984. ... The receiving state can negotiate with the sending state to waive the diplomat's immunity. ... The proposal that he bring suit in Nigeria is absurd. ... Without the provision, a victim would have no choice but to sue an insured diplomat, who could then assert diplomatic immunity and escape liability. ... None deals with the entire problem of abuse of diplomatic immunity, a problem that includes the sending and receiving states, the diplomat, the diplomatic bag, and the victim. ...
TEXT:
[*1517] The Vienna Convention on Diplomatic Relations regulates diplomatic privileges and immunities. n1 The Vienna Convention, signed in 1961, was a combination of codification and progressive development. It incorporates clearly established rules and fills in gaps where international practice is uncertain or inconsistent. n2 It regulates the conduct of the receiving state (the state that hosts the diplomat) and imposes a duty upon diplomats to respect the laws and regulations of the receiving state, as well as a duty not to interfere in the internal affairs of that state. n3Recent events have shown an unfortunate tendency on the part of diplomats to disregard the law of the receiving state and invoke their diplomatic immunity to escape liability. n4 There are powerful reasons for diplomatic immunity; but these reasons should be balanced against the need to prevent diplomatic crime and the need to protect the rights of the victims.This note addresses the growing international concern over abuses of diplomatic immunity, n5 particularly as it relates to the recent increase in dramatic incidents caused by terrorist-diplomats. n6 The note argues that diplomatic immunity should not be restricted; n7 instead, the U.S. government should implement an insurance scheme in response to the [*1518] increasing abuse of diplomatic privileges. Sending states should be compelled to insure their embassies and staff against the tortious or criminal acts of their diplomats. Part I of the note gives a background of diplomatic immunity, including history, underlying theories, and recent abuses. Part II examines possible reactions to the problem of abuse of diplomatic immunity. Part III explains the insurance provisions and argues that insurance is the best solution to the thorny problem of diplomats' abuse of immunity. Other proposals that would alter diplomatic immunity have been suggested, including establishment of a compensation fund, reinterpretation of the Vienna Convention's provisions, and amendment of those provisions. Only the insurance scheme, however, protects victims of diplomatic abuses without substantially infringing upon necessary diplomatic immunities. The insurance scheme, unlike the other proposals, also enjoys the advantage of relative ease of implementation in the near future.I. DIPLOMATIC IMMUNITY: HISTORY AND ABUSE
A. BackgroundThe unique historical and theoretical bases for the doctrine of diplomatic immunity have made dangerous abuse possible and have created the dilemma currently facing receiving states. Part I reviews the history and theory behind the doctrine and then, with this backgound in mind, examines the state of diplomatic immunity law and the current abuse of that privilege.1. History of diplomatic immunity.Diplomatic immunity has been established since ancient times. n8 When the exchange of permanent ambassadors between the states of Europe became common during the sixteenth and seventeenth centuries, states provided immunity from the criminal jurisdiction of the sovereign [*1519] even where there was evidence that an ambassador had engaged in conspiracy or treason against the receiving sovereign. n9 By the eighteenth century, European states had broadly outlined the customary international law regarding the privileges and immunities of diplomats. n10 It was generally accepted, however, that these immunities only protected diplomats from local jurisdiction and gave them no authority to disregard the law. This effectively meant that the diplomat was under no obligation to obey the laws, a situation that has remained unchanged to the present day. n11Although these broad rules continued unchanged, states' practices varied considerably on matters of detail. Then, in 1961, forty countries signed the landmark Vienna Convention on Diplomatic Relations. n12 The Vienna Convention is a comprehensive multilateral codification of immunities extended to members of permanent diplomatic missions and their families, and constitutes the modern law concerning privileges and immunities of diplomats. n13[*1520] 2. Theoretical bases for diplomatic immunity.Three theories, whose popularity has varied over time, have been used to justify diplomatic immunity. The purpose of these theories, however, has remained constant: to explain the need to give diplomats immunity.Representative of the sovereign. Under traditional diplomatic practice, a diplomatic envoy personifies the sovereign she represents. The representative's privileges are similar to those of the sovereign herself, n14 and an insult to the ambassador is an insult to the dignity of the sovereign. n15 American courts have recognized this legal fiction, n16 although the doctrine is now generally discredited.Modern diplomatic practice does not accept this theoretical approach for several reasons. First, the personification doctrine is too broad because it places the diplomat above the law of the host state. This is difficult to reconcile with the suipremacy of the receiving sovereign. n17 Second, the rise of the modern system of nations has deprived the theory of much of its validity. In the modern world, what king is the ambassador personifying? n18 Lastly, although the personal representative theory extends immunity to official acts, it offers no theoretical basis for protecting private acts. Yet the law of diplomatic immunity has traditionally protected certain private acts. n19 For these reasons, the representative of the sovereign theory has fallen out of use as a rationale for diplomatic immunity.Exterritoriality. The exterritoriality approach to diplomatic immunity adopts the legal fiction that a diplomat is always on the soil of her native country, wherever she may actually go. It is the oldest of the theories, but has received increasing criticism in recent years. n20 The sweeping implications of the exterritoriality doctrine for diplomatic immunity [*1521] have led to its substantial abandonment. Not only is the doctrine a mere legal fiction, but dangerous consequences could result because it "presupposes a theory of unlimited privileges and immunities which would go beyond those actually extended diplomats." n21 For this reason, commentators have generally rejected this theory as a basis for diplomatic immunity.Functional necessity. The theory of functional necessity is currently popular. n22 More pragmatic than the other two theories, this approach justifies immunity on the grounds that diplomats could not fulfill their diplomatic functions without such privileges. If diplomats were liable to ordinary legal and political interference from the state or other individuals, they would be dependent on the good will of the receiving state. Considerations of safety and comfort might materially hamper the exercise of their functions. n23The Vienna Convention on Diplomatic Relations embraces the functional necessity theory and recognizes that "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions are representing States." n24 Problems in the past, particularly during the Cold War, n25 have highlighted the need to protect diplomats from harassment by local authorities in order to facilitate the functioning of the diplomat and the diplomatic process. n26[*1522] The functional necessity doctrine carefully secures the unhindered performance of essential diplomatic duties. At the same time, the doctrine does provide justification for restrictions on diplomats' immunity if those restrictions do not affect the functioning of the diplomat as diplomat. The solution proposed in Part III attempts to meet this functional necessity standard.
B. Provisions of the Vienna ConventionThe Vienna Convention contains fifty-three articles and governs every aspect of diplomatic immunity from accreditation of ambassadors, n27 to the use of flags on diplomatic vehicles, n28 to exemption from local taxation. n29 The provisions relevant to the problem of abuse of diplomatic immunity concern the diplomat, the mission, and diplomatic correspondence, known as the "diplomatic bag."Four articles of the Vienna Convention apply when a diplomat has abused her immunity. Article 29 provides that the person of the diplomat shall be inviolable and that the diplomat is not liable to any form of arrest or detention; article 31 exempts the diplomat from the criminal jurisdiction of the receiving state, n30 though a diplomat can be tried in the receiving state if her immunity is waived. Under article 32, however, only the sending state may waive immunity, and the waiver must always be express. The fourth provision, article 41, requires that the diplomat respect the laws and regulations of the receiving state and not interfere in the internal affairs of the receiving state. This provision is unenforceable due to the previous three provisions of the Convention, which exclude diplomats from the jurisdiction of the receiving state. In short, the diplomat herself cannot be touched.As with the diplomat, the mission itself is inviolable. n31 If a crime is committed on embassy grounds or from embassy premises, local authorities [*1523] cannot enter the embassy without the invitation of the ambassador. Article 23 provides that the archives and documents of the mission are inviolable wherever they may be. n32Article 27 governs the treatment of the diplomatic bag. n33 It requires "visible external marks of its character" and that the bag contain only diplomatic documents of articles intended for official use. Subsection 3 succinctly and unambiguously states that "[t]he diplomatic bag shall not be opened or detained." n34These immunities that international law grants to diplomats enable a small though significant number of diplomats to disregard the law. When a diplomat does break the receiving state's law, article 9 is the only recourse for the receiving state. It allows the receiving state at any time, without explanation, to notify the sending state that the ambassador or any other member of the mission is persona non grata. n35 In such a case, the sending state would either recall the diplomat concerned or terminate her functions with the mission.
C. The Scope of Present AbuseAbuses of diplomatic immunity fall into two broad categories: the use of the diplomatic bag to smuggle illegal goods into or out of the receiving state, and crimes committed by the diplomats themselves. n36Smuggling goods into or out of the receiving state using the diplomatic pouch is relatively common. n37 There have also been more unusual -- and violent -- cases of abuse of immunity by diplomats. Perhaps [*1524] the most well known is the shooting of a British policewoman in St. James' square by an unidentified assailant who was within the Libyan Embassy in London in April 1984. n38 There, protesters were demonstrating peacefully when submachine gunfire from the Embassy killed British constable Yvonne Fletcher and wounded eleven others. The Libyans claimed diplomatic immunity for all embassy occupants; the British Government declared the diplomats persona non grata, expelled them, and broke off relations with Libya -- all that it could do under the Vienna Convention. n39Another incident in Britain involved an ex-member of the former Nigerian government, Alhaji Umaru Dikko. In July 1984 Mr. Dikko was kidnapped from his London home, drugged, and put into a diplomatic [*1525] crate bound for Nigeria. The crate also contained Israeli mercenaries who had helped in the kidnapping. The Nigerian government refused to cooperate, and again, all Britain could do was expel the diplomats involved with the kidnapping. n40 This was not the first time the immunity of a diplomatic "bag" was used for purposes of abduction. n41The United States has also had its share of incidents. In 1983 two Guatemalan diplomats helped kidnap the wife of E1 Salvador's former Ambassador to the United States. She was taken from her Florida home and held for a 1.5 million dollar "war tax." The two diplomats involved were taken into custody after the State Department, in an "unusual move," successfully negotiated with the Guatemalan Government for the waiver of their diplomatic immunity. n42Later that year O Nam Chol, a North Korean diplomat, surrendered to American authorities. He had found sanctuary in the North Korean Embassy for ten months after allegedly sexually assaulting a woman in a park in New York. In order to force Mr. Chol out of the North Korean mission, the State Department threatened to expel Mr. Chol's superior. Mr. Chol then surrendered to the authorities, who charged him with the crime and ordered him to leave the country. n43Finally, in November 1982 the grandson of the Brazilian Ambassador in Washington assaulted and shot an American citizen outside a local nightclub. The victim of the assault filed suit against the Ambassador and Brazil. n44 These charges were dismissed on grounds of diplomatic immunity. n45In all these situations the host government had an "alarmingly narrow" range of options. n46 Expulsion and a break in diplomatic relations were the only actions available. Because these actions were the most severe that could be taken under the Vienna Convention, there was [*1526] great public feeling that injustice had been done. n47

II. RESPONSES TO THE ABUSE OF DIPLOMATIC IMMUNITY

The recent abuses of diplomatic immunity have prompted a flurry of activity and thought on proper routes to curb the problem. Part II looks at action presently available under the Vienna Convention to states injured by the conduct of diplomats and then evaluates several proposed solutions. Ultimately, none of these approaches adequately balance the policies underlying diplomatic immunity against the need to compensate victims and deter violence. n48 Part III proposes a plan that does so.