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The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience

Published online by Cambridge University Press:  27 February 2017

Rosalyn Higgins
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Editorial Comments
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American Journal of International Law , Volume 79 , Issue 3 , July 1985 , pp. 641 - 651
Copyright
Copyright © American Society of International Law 1985

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References

1 For example, visits by heads of government, or other permanent officials; special missions; official representation at ad hoc or periodic conferences; permanent missions at international organizations.

2 E.g., inter alia, Vienna Convention on Consular Relations of 1963, 21 UST 77, TIAS No. 6820, 596 UNTS 261; Convention on Special Missions, Annex to GA Res. 2530 (XXIV) (Dec. 8, 1969); Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, UN Doc. A/CONF.67/16 (Mar. 4, 1975); United Nations Charter of 1945; Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations of 1947, 33 UNTS 261; and many relevant bilateral agreements.

3 Some early attempts at codifying certain aspects occurred in 1815 (Congress of Vienna) and in the 1920s under the League of Nations. Some 81 nations participated in the conference leading to the 1961 Vienna Convention, building on the commentary prepared by the International Law Commission after study from 1956 to 1959.

4 23 UST 3227, TIAS No. 7502, 500 UNTS 95.

5 For convenience, in the context of the matters here under discussion, they may be summarized as follows:

16. The Convention identifies (but not in an exhaustive list) the functions of a diplomatic mission (Article 3). It can hardly need saying that terrorism or other criminal activities can never be justified by reference to these functions. The sending State must secure the approval (agrement) of the receiving State for the person it seeks to accredit as head of mission, though no comparable approval is needed for diplomats being sent to other posts, save for military attaches (Article 7). The receiving State reserves the right to notify the sending State, without explanation, that a member of the diplomatic staff is persona non grata or that any other member of staff is unacceptable (Article 9). The sending State must accredit a designated head of mission (Article 5). The receiving State may set a limit to the size of the mission (Article 11). There are provisions as to rank and formalities (Articles 13 and 18). Certain privileges relating to the flag and emblem are granted (Article 20). The receiving State is to facilitate the acquisition of mission premises (Article 21) and is under a special duty to protect the mission against intrusion or indignity (Article 22(2)). The premises of the mission are inviolable (Article 22). (Though it is not correct, from a legal point of view, to regard them as “extraterritorial”.) The archives and documents of the mission are inviolable whether they are on or off the mission premises. The receiving State is to give full facilities for the performance of the functions of the mission (Article 25) and to protect communications for official purposes (Article 27). In this context, the diplomatic bag shall not be opened or detained (Article 27(3)) and the diplomatic courier shall be protected by the receiving State in the performance of his functions (Article 27(5)). The person of the diplomatic agent is inviolable. He is to be treated with respect, protected against attack, and may not be detained or arrested (Article 29). The diplomatic agent is immune from the criminal jurisdiction of the receiving State (Article 31). Even if diplomatic relations are broken off, or if a mission is recalled, the receiving State must continue to protect the mission, its property and archives (Article 45). The main relevant provisions of the Vienna Convention are annexed to this report.

H.C. Foreign Affairs Committee, First Report, the Abuse Of Diplomatic Immunities and Privileges, Report with an Annex; Together with the Proceedings of the Committee; Minutes of Evidence Taken on 20 June and 2 and 18 July in the Last Session of Parliament, and Appendices (Dec. 12, 1984).

6 From the period 1974-mid-1984, there was an average of 71,000 canceled parking tickets in London annually. Id., para. 5. The United Kingdom is host to a fairly limited number of international organizations, including the International Maritime Organization (Headquarters Agreement of 1969, Cmd. 3964, later amended three times by exchanges of notes). The privileges and immunities that they have been granted are limited, and they have not been a major source of traffic or parking violations. Further, the Foreign and Commonwealth Office indicated that “very few breaches of our law have been committed by persons connected with international organizations.” Foreign Affairs Committee Report, para. 19 n.26.

7 Id., para. 5.

8 Article 27(4) of the Convention, supra note 4, provides that the bag may contain only diplomatic documents or articles intended for official use.

9 For details of such incidents in the United Kingdom, see Foreign Affairs Committee Report, paras. 68, 81-83.

10 But are detailed in id., paras. 69-72.

11 Id., paras. 74-77.

12 These included Sir Francis Vallat, former Legal Adviser to the FCO and former member of the International Law Commission, and Sir Ian Sinclair, current member of the ILC and recently retired Legal Adviser to the FCO.

13 See note 5 supra.

14 Further questions relating to the bag and the status of diplomats arose in connection with the abduction in July 1984 of Umaru Dikko, a former Minister of the deposed Shageri Government in Nigeria. In the words of the Foreign Affairs Committee Report, para. 106:

It would appear that he was heavily drugged and placed in a crate. Two large crates arrived at Stansted airport at about 4 pm to be loaded on to a Nigerian Airways aircraft. The crates were attended by a member of the Nigerian Government service, who held a diplomatic passport but was not a member of the mission to the UK and had no diplomatic status in this country. He made no protest when the crates were required to be opened. Members of the staff of the High Commission who were at Stansted were invited to inspect the crates. One crate contained MT Dikko, who was unconscious, and another man who was conscious and in possession of drugs and syringes. The other crate contained two men, both conscious. A total of 27 people, including the three other than Mr Dikko who were found in the crates, were arrested. Charges were preferred against three persons, none of whom claimed diplomatic immunity at the time, though one has since done so.

His claim is being pursued through the English courts, but has not so far succeeded. This plaintiff claims that as he is a diplomat accredited to a country other than the United Kingdom, he is entitled to immunity in the United Kingdom.

15 See Goldberg, Ambassador Arthur, The Murder in St. James’s Square, Encounter, November 1984, at 67-70 Google Scholar; and response by Sir Ian Sinclair, id., November 1985, at 76-78.

16 Hardy, M., Modern Diplomatic Law 44 (1968)Google Scholar.

17 See evidence of Sir Francis Vallat, who had participated at the conference leading to the formulation of the Convention. Foreign Affairs Committee Report, para. 91.

18 Id., para. 94.

19 The Caroline, 29 Brit. Foreign & St. Papers 1137-38 (1840-41); 30 id. at 195-96 (1841-42).

20 This question is before the International Law Commission in the context of its work on the status of the diplomatic courier and the unaccompanied diplomatic bag. One possibility is that in a new instrument states should be given the option to reserve the right to apply the safeguard found in Article 35(3) of the Convention on Consular Relations, supra note 2, which provides that if the receiving state has serious reason to believe the bag contains nonpermitted articles, it may request that the bag be opened in its presence. If this request is refused, the bag shall be returned to its place of origin. For the operation of reservations in the terms under the Vienna Convention on Diplomatic Relations, and the UK position thereon, see Foreign Affairs Committee Report, paras. 98-191.

21 Foreign Affairs Committee Report, para. 29.

22 Id., paras. 31-34. This matter, too, is under consideration by the International Law Commission, with a proposal to prohibit any kind of examination directly or through electronic or mechanical devices.

23 Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1982, UN Doc. ST/LEG/SER.E/2, at 55 (1983).

24 Foreign Affairs Committee Report, para. 99.

25 Id., para. 101.

26 Id., paras. 39 and 42.

27 The amendments considered included limiting the immunity from jurisdiction of accredited diplomats, technical and administrative staff, and their families; removing personal immunity after participation in acts of state terrorism; obligatory opening of the diplomatic bag upon request following reasonable suspicion or return of the bag to its point of origin; withdrawal of the inviolability of diplomatic premises if they have been used for acts of state terrorism; electronic scanning of the diplomatic bag (insofar as that would entail a formal amendment).

28 Foreign Affairs Committee Report, para. 56.

29 Metropolitan Police Act 1839, 2 & 3 Vict., ch. 47, §52.

30 Public Order Act 1936, 1 Edw. 8 & 1 Geo. 6, ch. 6, §3.

31 Ch. 81.

32 See, e.g., Memorandum of Professor Colonel G. I. A. D. Draper, Foreign Affairs Committee Report, App. 6, at 74.

33 Regina v. Roques, Bow Street Magistrates Court, June 1984. For details, see Foreign Affairs Committee Report, para. 50.

34 Foreign Affairs Committee Report, para. 48. This was a difficult issue for the committee, and a different view was strongly urged by one member, Ivan Lawrence, Q.C., M.P. See id. at xlvii.

35 See id., paras. 125-126, 116-118.