Diplomatic and Consular Immunities and their Limitations

The facts of the case referred to pose various aspects that the principles of diplomatic immunity and consular immunity address. In the case, the officer had an encounter with foreign officers who fall into two levels envisioned by the Vienna conventions and subsequent international law considerations. Firstly, the ambassador is a member subject to the provisions under diplomatic immunity. Since the ambassador is the principal link for communications between Brigadoon and Amnesia, he enjoys the highest level of immunity, full immunity, as provided for by the Vienna convention.[1] Accordingly, the Brigadoon ambassador enjoys such privileges as “complete personal inviolability” complete immunity from criminal prosecutions unless when the sending state, in this case Brigadoon, waves such immunity.[2] Further, such officers have immunity from civil litigation except in very specific cases, which do not apply specifically in the Brigadoon case, since they relate to activities that do not relate to the duties of their office.[3]

Specifically, in the Brigadoon ambassador’s case, the immunity provided by the principle of personal inviolability protects him against searches to his property.[4] According to article 27 of the Vienna convention relating to diplomatic missions, the ambassador is protected from actions that expose official communications of his missions, for instance opening or detention of the diplomatic bag. However, in the case, the bags that the ambassador carried do not evidence of the fact that they contain documents necessary to facilitate communication of the mission. For instance, the bags do not bear the required labels that designate such bags to be of a diplomatic nature. Such is in contravention of article 27, clause 4, of the Vienna convention, which requires that “the packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use.[5]

A second justification for the custom officer’s actions is the obligation that accompanies the personal inviolability principle. Although this principle restricts the officers of the receiving state from searching the property of the diplomatic officers, such restrictions come with the expectation that the diplomatic officers do not pose a security threat to the receiving state.[6] In this respect, the principle is granted on the basis that “the host country does not give up its right to protect the safety and welfare of its populace and retains the right, in extraordinary circumstances, to prevent the commission of a crime.[7]” In the Ambassador’s case, the public safety appeared threatened. For instance, the drug detector dog reacted to the bag picked up by the ambassador and his consular officer, which indicated a potential threat to safety of the public. Accordingly, the officer was justified to take action to avert a calamity.

With increasing cases of terrorism, the US for instance passed an act, Foreign Sovereign Immunities Act (FSIA), which, for instance, allows legal action against states and officers who engage in terror activities, irrespective of their immunities provided by international conventions such as the Vienna conventions.[8],[9] Although the exception has been argued to have the potential to annihilate the relations between nations,[10] such exceptions highlight the expectations that foreign officers should not engage in unlawful activities under the guise of the immunity accorded via the international treaties that their countries have signed with the host country. In the case of the ambassador, a clear failure to avert suspicion of engagement in unlawful activity was evident. For instance, the ambassador and the consular officer do not mark their luggage sufficiently as required for under such international conventions, to indicate that such luggage are for official purposes. Such marking also guarantees the host country that the country from which the diplomatic officers come from has taken due care to ensure that the contents of the luggage does not injure the relationship that both countries have. As such, failure of the officers to mark such luggage with appropriate labels indicated a possibility that they could be engaging in unlawful activities. Additionally, the reaction of the drug detector dog to the luggage creates a basis for the suspicion of such unlawful activity. Compounded by the lack of appropriate labels on the luggage, the reaction by the drug detector dog provides a basis for the customs official to suspect the ambassador and consular officer engaging in an activity that risks public security. Accordingly, the activity of the officer was allowable as to the extent that it intended to avert the commission of a grave crime.[11]

In respect to the consular official, the immunities provided are narrower than those provided for diplomatic missions. In the case of consular officers, whether career or honorary officers, the immunity is provided to the extent of their official acts. For instance, article 35 of the Vienna convention related to the consular officers outlines the limitations of immunities concerning communications and luggage of such officials.[12] Clause 2 of the article, for instance, highlights the correspondence that is deemed to be inviolable. The official correspondence, according to this clause, and which attract such level of immunity, is that which relates to the consular post and functions. Similarly, despite the provision prohibiting the opening or detaining of the consular bag, an exception to such prohibition, as provided for in clause 3 of article 35 of the Vienna convention related to the consular officers, provides a basis for explaining the actions of the customs officer in inspecting the luggage picked by the consular officer.

According to clause 4, where suspicions exist to the content of the bag, a request for opening of the bag, in the presence of an individual authorized by the sending state, is allowed.[13] In the case of the Brigadoon consular officer, adequate suspicions for such a request existed. For instance, the officer working in the station had prior work experience in the station and hence the suspicion were raised by “competent authorities of the receiving state” as envisaged in clause three of article 35 of the Vienna convention.[14] Similarly, the reaction by the drug detector dog to the luggage provides a basis for the suspicions. Additionally, the absence of appropriate labels on the luggage provided a case for the inspecting officer to suspect that contents other than those envisaged by the Vienna convention were in the bag. As such the Inspecting officer had a reason to take action in light of the facts of the case.

The actions of the inspecting officer however contravened the envisaged action in case of such suspicion. According to the convention, the officer is required to request for opening of the bag in the presence of a representative authorized by the sending state, and where such request is denied, take action for the bag to be returned to the place from which it originated. Instead of initiating such a request, the inspecting officer introduces a procedure that is not supported by guiding principles, requiring the consular officer to allow the bag to be X-rayed to satisfy himself of the appropriateness of the contents of the bag. Such an action, even after the resistance by the consular officer, contravenes the envisaged process under the Vienna convention. Under the convention, instead of insisting on the examination of the contents of the bag, the officer could have initiated action to repatriate the bag to its place of origin. Similarly, the action of the officer to disregard the advice to seek guidance on the action to be undertaken from a higher authority highlights a case for providing appropriate guidelines to all staff on the procedure for handling cases related to immunity of foreign officers.

Another fact that explains the actions by the custom officer is the failure to follow appropriate protocols and stipulations that enhance the provision of the immunities demanded. For instance, in the case, the return of the ambassador and his arrival with a new consular officer is not appropriately notified to the customs officers. Compounding such failure to follow protocol, is the disregard of the stipulations to enclose the items necessary for the performance of the mission in clearly labeled bags.[15], [16]­ Such disregard of appropriate notification indicates that the officers absconded their duty to “respect the laws and regulations of the receiving state”, which accompany the immunities provided for in the Vienna convention on consular relations. [17] The disregard of the guideline for appropriate labeling of the bags for instance created a reason for the customs officer to believe that the bags could have had content that would harm the public security of the receiving country’s public.

[1] United States Department of State, Bureau of Diplomatic Security 2011, Diplomatic and consular immunity: guidance for law enforcement and judicial authorities. Viewed 08 March 2013 <http://www.state.gov/documents/organization/150546.pdf>.

[2] Ibid., p.4

[3] Ibid., p 4

[4] UN 2005, Vienna convention on diplomatic relations 1961, 8.

[5] Ibid.

[6] Rudd, Diplomatic immunity, p. 26-27.

[7] US Department of state, Diplomatic and consular immunity, p. 12

[8] Gartenstein-Ross, D 2003, ‘A critique of the terrorism exception to the foreign sovereign immunities act’,  International Law and Politics, vol. nn, pp. 101-157, viewed 08 March 2013, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=408740 >.

[9] Carter, BE 2005, ‘Immunity for foreign officials: possibly too much and confusing as well’, Proceedings of the Annual Meeting (American Society of International Law), vol. 99, pp. 230-233.

[10]  Bradley, CA 2001, The costs of international human rights litigation. Chicago Journal of International Law, vol. 2, no. 2, pp. 457-473.

[11] US state Department, Diplomatic and consular immunity, p. 12

[12] UN 2005, Vienna convention on consular relations 1963, p.14

[13] UN 2005, Vienna convention on consular relations 1963, p.14

[14] Ibid.

[15] UN 2005, Vienna convention on diplomatic relations 1961, 8.

[16] UN 2005, Vienna convention on consular relations 1963, p.14

[17] Milhaupt, CJ 1988, ‘The scope of consular immunity under the Vienna convention on consular relations: towards a principled interpretation’, Columbia Law Review, vol. 88, no. 4, pp. 841-862.

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