SELECTED STUDIES

The story presented below is being illustrated purely as a fictive case concerning the life of a diplomat. However, it is highly applicable and realistic in the everyday life of a diplomat working in this field, i.e., had it not only been for the made-up version here given.

Case: Mr. Yes is the ambassador to Romania for the state of Gåseby. He lives in Bucharest with his wife and her father. Mr. Yes daughter, who is twenty years old, is studying medicine at the University of Cluj-Napoca where she lives in a bedsit with four friends. Mr. Yes was last week involved in a car accident, which killed a pedestrian. Eyewitnesses say Mr. Yes’ car mounted the pavement without warning and struck the pedestrian. Police officers believed that Mr. Yes, who was driving the car, had been drinking. The following day Mr. Yes’ father-in-law was detained in Unirea Shopping Centre accused of shoplifting and his daughter was arrested in Cluj-Napoca accused of supplying drugs from her bedsit. Cluj-Napoca police believe that Mr. Yes supplied the drugs to Mr. Yes’ daughter and wish to search Mr. Yes’ Bucharest residence.

Romania should carefully consider any actions they might choose to take against the ambassador of Gåseby, his daughter and his father-in-law. Despite the special positions they have in the society they are guests in, some difficulties between Romania and Gåseby may have appeared. Being in the positions they are in, the Vienna Convention on Diplomatic Relations, VCDR, of 1961 gives a framework on how to act towards these crimes allegedly committed by each of them.[1] Below, the author is dealing with each person separately.

[1] The VCDR is an international treaty on diplomatic intercourse and the privileges and immunities of a diplomatic mission (see United Nations publication, Sales Nos: 61.X.2 and 62.X.1, United Nations Conference on Diplomatic Intercourse and Immunities, Official Records, Vols. I and II). It was adopted 14 April 1961 by the United Nations Conference on Diplomatic Intercourse and Immunities, held in Vienna, from 2 March to 14 April. The Conference also adopted the Optional Protocol concerning the Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of Disputes, the Final Act and four resolutions annexed to that Act. In accordance with Article 51, it entered into force 24 April 1964. All Articles used are being taken from the Convention, where no further references are needed.

According to Article 1(a) of the VCDR, Mr. Yes, the ambassador, is “the head of the mission”, and therefore the person charged by the sending state with the duty of acting in that capacity. Being given that position, an ambassador should be aware of the sort of privileges and immunities he has been granted from the sending state according to what is written in the VCDR. Further, his actions in this case also apply to Romania, i.e., the VCDR, on how the actions might be responded upon by Romania as being the receiving state.

The author is known with that the Cluj-Napoca police want to search his residence, after believing that the drugs that were supplied to Mr. Yes’ daughter by Mr. Yes may have been kept in Mr. Yes’ residence.

However, Article 22(1) is one, among other articles, which might give Romania reason to act cautiously, however suspicious one might be. This Article states that “[t]he premises of the mission shall be inviolable. The agents of the receiving state may not enter them, except with the consent of the head of the mission.” The same caution should be applied when considering both Articles 30(1) and 1(i). Since Bucharest is where the ambassador is believed to have his private residence. Article 30(1) states that “[t]he private residence… shall enjoy the same inviolability and protection as the premises of the mission.”[1] Furthermore, Article 22(3) does state that “[t]he premises of the mission… shall be immune from search…” These definitions can be used in the ambassador’s favour, should the Cluj-Napoca police wish to search his residence and further on have him arrested.

Should the ambassador choose to act in a none-cooperative way with the Cluj-Napoca police, the Cluj-Napoca police cannot arrest him. Thus, the receiving state has, according to Article 22(2) “… a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.” Although Romania might consider having Mr. Yes arrested, both for the possible killing of a pedestrian and the possibility of being involved in drug trafficking, one should also show utter caution here. Besides Article 22(2), one might also want to take into account Article 29 before taking the step to arrest Mr. Yes. This Article states that “[t]he person of a diplomatic agent shall be inviolable. He should not be liable to any form of arrest or detention.” Furthermore, it states that “[t]he receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom, or dignity.”[2]

Since the Cluj-Napoca police have officially wished to search the ambassador’s Bucharest residence, i.e., to his presumable involvement in drug trafficking, this steps shows that they have a strong reason for doing that. The ambassador was as well, according to eyewitnesses, the person that drove the car that resulted in killing a pedestrian after having consumed alcohol.

There might therefore be reasons to believe, according to Article 38(1), that the ambassador no longer shall “… enjoy immunity from jurisdiction, and inviolability…”, since there is a possibility that the ambassador did not “… in respect of official acts…”, perform “… the exercise of his functions.” Furthermore, it is highly questionable, i.e., Article 41(3), as to whether “[t]he premises of the mission… [were]… used in any manner incompatible with the functions of the mission…” as laid down in the VCDR “… or by other rules of international law or by any special agreements in force between the sending state and the receiving state.” The ambassador of Gåseby does not seem to have respected the laws and regulations of the receiving state, i.e., Article 41(1), which he is obliged to do.

Since the Cluj-Napoca police have a strong reason to believe that the ambassador was involved in drug trafficking and one also knows that Mr Yes, presumably, was the guilty one killing the pedestrian after drinking and driving, one might want to deal with this in the easiest possible way. Romania might want to consider Article 9(1), which means he can be declared persona non grata. Thus, Romania gives the sending state notification concerning the ambassador having to leave his post in Romania. Easiest, because it needs no further explanations, according to Article 9(1). However, politically, this might not be the right way of dealing with the matter, presumably as the sending state reciprocally might do the same to Romania’s ambassador in Gåseby. Even if the sending state does not answer by taking the same action towards Romania’s ambassador in Gåseby, Romania might still have worsened the relations with Gåseby.

The reason not to declare Mr. Yes persona non grata is, as mentioned, that Romania might be worse off, politically, with the sending state. In addition, Article 31(1) states that “[a] diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state.” On the contrary, what Romania can hope for if one decides to declare Mr Yes persona non grata, is that justice will be given in the sending state, by applying Article 31(4), which states “[t]he immunity of a diplomatic agent… does not exempt him from the jurisdiction of the sending state.” However, even with the actions taken towards Mr. Yes in the sending state, the political situation might still be of tension between Romania and Gåseby. Thus, because the state of Gåseby might not within their judicial tradition consider having Mr. Yes prosecuted.

However, should the sending state waive Mr. Yes’ immunity before Romania does anything, i.e., Article 32(1), they, themselves, might consider to prosecute him in their own court of law for his allegedly committed crimes. What one rather should consider if Romania should wish Mr. Yes’ privileges and immunities to be withdrawn is to ask the state of Gåseby to waive it. By doing that, the political situation between the two states might then not turn out to be as tense as if Romania would put forward Article 9(1).

Two other matters that have to be dealt with, are both when Mr. Yes’ father-in-law was detained in Unirea Shopping Centre accused of shoplifting and Mr. Yes’ daughter was arrested in Cluj-Napoca accused of supplying drugs from her bedsit.

Since both the VCDR and the practice of Article 37(1) gives the ambassador’s father-in-law and the ambassador’s daughter status as “members of their household”,[3] one should consider these persons as part of the Article that states that “[t]he members of the family of a diplomatic agent forming part of his household shall… enjoy the privileges and immunities specified in Articles 29 to 36.” In regard to Mr. Yes’ daughter, Article 30(1) states that “[t]he private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.” This means that the Cluj-Napoca police also should not search Mr. Yes’ daughter’s bedsit in Cluj-Napoca.

Another problem Romania police face, by having both Mr Yes’ daughter and Mr Yes’ father-in-law under arrest, is that Articles 29 to 36 applies equally to them as it does to Mr Yes (as described above in Mr Yes’ case). Therefore, according to Article 29 Romania police cannot hold them in detention. Furthermore, considering both their cases, the VCDR also includes them under Article 31(1), which states that “[a] diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state.”

[1] Article 1(i), to a certain extent, reflects upon what is stated in Article 30(1).

[2] This also interferes with what is, to modern diplomatic law, known as an ambassador’s role of filling the role of the “[f]unctional necessity… in order that they can properly and fully perform their diplomatic function” (J. C. Barker, The Abuse of Diplomatic Privileges and Immunities: a Necessary Evil?. Aldershot 1996, p. 46).

[3] Cf. J. Brown, “Diplomatic Immunity: State Practice Under the Vienna Convention on Diplomatic Relations” in International Comparative Law Quarterly, 1988, Vol. 37, pp. 53-88.

Since Romania might face problems on how to deal with all these incidents, one should first of all focus on the ambassador’s possible actions. Thus, it will be easier to treat all persons involved under one roof since both the ambassador’s father-in-law and his daughter, as outlined above, enjoy many of the same privileges and immunities as the ambassador himself. This is both easier and relevant, because these privileges and immunities were, in the first place, given to the ambassador of Gåseby and thereby to the members of the household. One also has the knowledge concerning both to the ambassador’s father-in-law and his daughter’s allegedly crimes, that these problems would have been easier to deal with in a more ‘traditional way’ had not Mr. Yes enjoyed the privileges and immunities of an ambassador. Therefore the author suggests primarily to consider a closer focus on the ambassador of Gåseby’s believed actions rather than what the members of the household allegedly have committed. First, because the ambassador has, allegedly, committed crimes that are more serious. Secondly, because this is more relevant to solve the heart of the problem, which furthermore will contribute in the decision on the future diplomatic status for all persons involved.

Even though one decides not to declare the ambassador of Gåseby persona non grata, these cases can turn out to be complicated. Complicated, since Romania then might have created a precedent, possibly for other states as well, on how to deal with this matter should something similar happen again. Domestically, the family of the killed pedestrian and citizens of Romania might show rage towards a decision as this. Thus, since Romania authorities have every right to put forward justice, should they have clear evidence to do so, but decide not to do so as that solution might, politically, create a stiff long-term relationship with Gåseby as well as with other states.

Should one however decide to declare Mr. Yes persona non grata, Romania may create a tense political situation between the two states.[1] On the other hand, one should on behalf of Romania, primarily and fairly harsh, analyse the question: to what extent have the ambassador and the members of the household abused their privileges and immunities? This is not a particularly easy task, since one knows that Mr. Yes and the members of his household (as outlined above) enjoy the privileges and immunities stated in the VCDR.

Considered the crimes allegedly committed, and as outlined above there are several courses of action one might want to consider carefully. Thus, according to Romania practice through the VCDR, international law and the relations between Gåseby and Romania, the author would hope for the best possible outcome for all parts in terms of underlining the need for justice to be done in these cases.

[1] If the ambassador’s immunity is waived, one should process it according to Article 39(2). This article deals with the matter of what applies to a person enjoying privileges and immunities once these ends.

Literature

Barker, J. C., The Abuse of Diplomatic Privileges and Immunities: a Necessary Evil?.
Aldershot 1996.
Brown, J., “Diplomatic Immunity: State Practice Under the Vienna Convention on Diplomatic Relations” in International Comparative Law Quarterly, 1988, Vol. 37. United Nations publication, Sales Nos: 61.X.2 and 62.X.1, United Nations Conference on Diplomatic Intercourse and Immunities, Official Records, Vols. I and II.

[2] Article 1(i), to a certain extent, reflects upon what is stated in Article 30(1).

[3] This also interferes with what is, to modern diplomatic law, known as an ambassador’s role of filling the role of the “[f]unctional necessity… in order that they can properly and fully perform their diplomatic function” (J. C. Barker, The Abuse of Diplomatic Privileges and Immunities: a Necessary Evil?. Aldershot 1996, p. 46).

[4] Cf. J. Brown, “Diplomatic Immunity: State Practice Under the Vienna Convention on Diplomatic Relations” in International Comparative Law Quarterly, 1988, Vol. 37, pp. 53-88.

[5] If the ambassador’s immunity is waived, one should process it according to Article 39(2). This article deals with the matter of what applies to a person enjoying privileges and immunities once these ends.

Nessim Ghouas, from Oslo/Norway, holds a B.Phil. in Social Sciences and Arts (Norway); an MA in European and International Studies (United Kingdom; England); an M.Phil. in Political Science (Norway) as well as a Ph.D. in Social Sciences/Political Science and History (Germany). Since 2003, as a Research Fellow, he is doing post-doctoral activities at the Babes-Bolyai University Cluj-Napoca, Cluj-Napoca/Romania, where his main activities are undertaken at the European Research Institute and the German Research Institute. E-mail: nessim.ghouas@gmx.net

Tackling a Diplomatic Crisis

Literature