The Law Of All Land Term paper
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The Law of All Lands:
A Study of Diplomatic Immunities and Privileges
I. Introduction – A Brief History of Diplomacy
II. Related Terms in Diplomacy
III. United Nations Legislation
A. Vienna Conventions 1961 and 1963
B. Foreign Sovereign Immunities Act of 1976 and Diplomatic Relations Act of 1978
C. General Assembly Resolution
IV. U.S. Policy on Diplomatic Immunity
V. Abuses of Diplomatic Immunities and Privileges
VI. Conclusion
VII. Appendices
VIII. Bibliography
I. INTRODUCTION – A Brief History of Diplomacy
Sadaam Hussein emerged as “public enemy number one” because of his blatant disregard to international law and relations, in his continued hostage hold of U.S. diplomats. As a result, foreign and national security policies had to be enacted to handle the hostile foreign affair. Diplomacy became one of the chief instruments of foreign and national security employed in the Iranian hostage crisis and other international conflicts preceding and succeeding. The history of diplomacy can be traced to the intense diplomatic intercourse between ancient Egypt and its neighbors long before 1000 BC. Not until the twelfth and thirteenth centuries, however, did diplomacy begin to assume its modern form. Rules were developed by the Italian city-states to govern the appointment and conduct of ambassadors, and in 1455, Milan established the first permanent embassy in Genoa. In the sixteenth century, other European states followed the Italian example and appointed permanent ambassadors. Under the influence of sixteenth and seventeenth century writers, such as Hugo Grotius and Alberico Gentili, the privileges of diplomats were more precisely defined and incorporated in international law. The Congress of Vienna in 1815 and the Vienna Convention on Diplomatic and Consular Relations in 1961 and 1963 defined and redefined, respectively, classes of diplomatic representatives. In the twentieth century, consular and diplomatic services, formerly separate, have been merged in many countries, including the United States (1924). Diplomacy is the activity of preventing and solving conflicts by representatives, namely diplomats, of two or more states (nations) conversing on related controversial issues with expectations toward peaceful agreements. The most significant catalyst or mechanism used within diplomacy exists as immunities and privileges. Diplomatic immunity and privilege entails an exemption or freedom from liability or penalty under criminal and national law. Consular agreements, extraterritoriality, impunity and extradition are terms that appear frequently throughout the discussion of diplomatic immunities and privileges. As the established ruling commission over global affairs, the United Nations have enacted legislation concerning the diplomatic relations, including immunities and privileges. Such legislation occurred at the Vienna Conventions of 1961 and 1963, along with the passing of the Foreign Sovereign Immunities Act of 1976. As a super power and democratic nation, the United States plays a pivotal and influential role in the enforcement of immunity statues. Within its national boundaries, the United States follows its policy on diplomatic immunity and privilege, while other nations observe American practices and execute their own policies. Consequently, such freedom granted by diplomatic immunity has resulted in mainstream and high sea foreign cases when diplomats abuse it. What becomes apparent within the study of diplomatic immunity over the last ten years is the dilemma placed on participating diplomatic countries when abuse calls for rule 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 upheld that foreign emissaries traveled under the protection of Zeus. In international law, this ideal form of immunity upholds in current diplomatic relations. Immunity was intended to protect diplomats working in unfriendly foreign countries. As abuse of this exemption system began to occur, once unfamiliar terms grew into commonly used words and practices.
· Consular agreements – the appointment of an official by a government to reside in a foreign country to represent the commercial interests of its native citizens. Consular agreements usually beget global negotiations.
· Extraterritoriality – an exemption from the application of jurisdiction of law or tribunals. Extraterritoriality requires federal judiciaries to determine the territorial reach of federal statutes.
· Impunity – exemption from punishment, penalty, and harm.
· Extradition – legal surrendering of a fugitive to the jurisdiction of another state, country, or government for trial.
III. UNITED NATIONS LEGISLATION
Diplomacy exists as one of the most attention-needed issue on the agenda of the United Nations. As an ideal governing body among many countries, diplomacy represents one of the main mechanisms encouraged by the United Nations. Two of the groundbreaking global fellowships occurred at the Vienna Conventions of 1961 and 1963, both of which focused on diplomatic relations. Consequently, the Conferences established and revised rules and regulations in order to govern the issuing of diplomatic immunities and privileges. Although they differ, the diplomatic 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, legal attachment, or execution; and 2) the duty of the receiving state is to protect the diplomatic missions. In addition, under the consular mission, an exception to the premises may transpire in cases of emergency. Another example of the United Nations developing a precedent in the allotment of diplomatic immunities and privileges concerns official diplomatic documents. Article 24 and 33 states that “records, documents, correspondences, and archives cannot be seized or detained physically; nor can they be used as evidence in legal proceedings. (See Appendix 1, “Comparative Study of Privileges and Immunities of Diplomatic and Consular Missions”). All foreign officials do not receive full immunity. Levels of immunity are granted on the basis of rank and position within the foreign mission. Along with one hundred and sixty nations, the United States agreed to the treaties set during the Vienna Conventions of 1961 and 1963 explaining diplomatic practices, including immunity. Immunity from all criminal prosecution and many civil suits for diplomatic agents and members of their families illustrates the distinct levels of immunity issued. Embassy administrations encompass lesser extents of immunity, and consuls appear at even lower levels of immunity. Immunity only for behavior related to the mission limits service staff of embassies. A country can expel a foreign diplomat whom it considers undesirable by declaring the diplomat persona non grata. Another important law regarding diplomatic immunity came in 1976 as the Foreign Sovereign Immunities Act. The act sets two conditions for the service of process on a foreign state and its agencies, intervention or settlement amongst the two parties. Because the act recognizes sovereign immunity, the process encourages any breach of contract dismissed due to diplomatic immunity. An incident that happened in the early 1990s involved a Zaire mission and the Sage Realty Corporation 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 Zairian mission. The Zairians appealed to the Second Circuit Court of Appeals, who ruled in favor of the foreign mission on the basis of the Foreign Sovereign Immunities Act. The ruling concluded, “The Foreign Sovereign Immunities Act states that the property of a foreign state in another country shall be immune from attachment, arrest, execution or eviction.” A related act, the Diplomatic Relations Act of 1978, addresses certain securities, common to citizens, that diplomats must take to ensure proper restitution in cases of misbehavior such as purchasing liable insurance for automobile accidents.
A recent form of legislation attempt appears at the 84th plenary meeting of the General Assembly of 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 and consular missions and representatives, as well as against missions and representatives of international intergovernmental organization and officials of such organizations, and emphasizes that such acts never be justified." While forbidding any insubordination of international law, the proposal requests special tasks from the Secretary General to maintain an accurate account of all conflicts with international law involving diplomatic or consular immunity. (See Appendix 2, General Assembly Resolution 49/49).
IV. U.S. POLICY ON DIPLOMATIC IMMUNITIES AND PRIVILEGES
In the federal system of the United States, the U.S. Department of State, headed by the Secretary of State (currently, Madeline Albright) handles foreign relations and services. Diplomats, trained career officials, help implement U.S. foreign policy by representing the United States in its relations with other countries and with international organizations. The Department of State maintains embassies, consulates, and trade and cultural centers in each country with which they have diplomatic relations. Ambassadors lead each U.S. embassy, and assisted by a staff of diplomats and attaches who have various functions. The political and economic sections report on U.S. developments in the host country. The consular section assists its national consuls living or traveling in the host country with commercial and legal matters and issue visas to local residents who wish to travel to its country. The cultural section promotes the culture of its own country. Diplomats stationed in a foreign country enjoy privileges known as diplomatic immunity. Hence, they are not subject to local civil and criminal laws and encompass the liberty to communicate with the U.S. government. Extraterritoriality allows for U.S. embassy buildings and grounds to fall under American jurisdiction. Similar structures of foreign relations departments appear in many other countries.
Because of its democratic federal government system, the United States faces two major dilemmas, equal treatment and dual nationality. Realizing that large numbers of U.S. diplomats are stationed in many...
VII. BIBLIOGRAPHY“And We Are the Law.” The Economist (US). 18 Apr. 1998: 27.
“Bad to Worse.” 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 to Enhance the Protection, Security, and Safety of Diplomatic and Consular Missions and 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 Department of State Dispatch 4 (1993): 471.
Fassbender, Bardo. “Diplomatic Immunity – Vienna Convention on Diplomatic Relations – Effect on Diplomatic Immunity on States Other Than Receiving State.” The American Journal of International Law 92 (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 for Diplomats?” Insight on the News. 3 Feb. 1997: 42-43.
Kubalija, Jovan. “Comparative Study of Privileges and Immunities of Diplomatic and Consular Missions.” 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 Law Journal 11 (1983): 232-240.
United States Code of Service. Title 22. Foreign Relations & 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. “When Diplomats 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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