Advanced

Diplomatic and Consular Immunities from National Jurisdiction in Criminal Cases - Practice from the Swedish, Dutch and Danish Ministries of Foreign Affairs

Lozancic, Monika (2009)
Department of Law
Abstract
This study looks into diplomatic and consular immunity under international law as applied by the Ministries of Foreign Affairs in Sweden, Denmark and The Netherlands. It does so by examining the practice and/or considerations of these Ministries in 10 different hypothetical cases where individuals enjoying such immunity commit crimes in respective State, i.e., abuse of local laws and/or regulations of the receiving State committed on the territory of the latter. The cases were chosen so as to cover some of the most common situations where individuals enjoying such immunity commit crimes. The situations are divided in two categories: conventional crimes (traffic offences, shoplifting and attempted fraud, slavery and threats of private... (More)
This study looks into diplomatic and consular immunity under international law as applied by the Ministries of Foreign Affairs in Sweden, Denmark and The Netherlands. It does so by examining the practice and/or considerations of these Ministries in 10 different hypothetical cases where individuals enjoying such immunity commit crimes in respective State, i.e., abuse of local laws and/or regulations of the receiving State committed on the territory of the latter. The cases were chosen so as to cover some of the most common situations where individuals enjoying such immunity commit crimes. The situations are divided in two categories: conventional crimes (traffic offences, shoplifting and attempted fraud, slavery and threats of private servants, assault, murder, child abduction and rape) and crimes that have a specific meaning for persons enjoying immunity either because they are historically connected to the diplomatic or consular sphere or because their commission requires that the person in question is enjoying such immunity (espionage, smuggling of narcotics using the diplomatic or consular bag and abuse of import privileges). A large part of the study is also dedicated to giving an overview of the legal framework regarding diplomatic and consular immunity. It focuses on the 1961 Vienna Convention on Diplomatic Relations (VCDR) and the 1963 Vienna Convention on Consular Relations (VCCR), both when looking into the legal framework but also when looking into the Ministries' practice. The study concludes that there are both differences and similarities between the Ministries' practices and considerations in these cases. As an example one could mention the approach to waiver of immunity according to article 32 of the VCDR and 45 of the VCCR, where Sweden maintains a strict policy never to request waiver in cases where persons enjoying immunity commit crimes in the State, while in The Netherlands waiver can be requested but is often dependent on the public's demands in relation to the offense. The differing practice is due to the fact that neither the VCDR nor the VCCR require any reasons to be given by the receiving State when it makes the decision on which course of action to take and to the fact that the Conventions do not provide any guidance or other criteria to be applied when such a decision is made. The most prominent common denominators for all the three States' Ministries is however the fact that they - in most cases - take the same measures no matter if the person who committed the crime is a consul or a diplomat and their reluctance to employ the remedies provided in the VCDR and the VCCR specifically aimed at covering such situations, mainly the persona non grata-declaration (article 9 of the VCDR and article 23 of the VCCR) and the possibility of a request for waiver (article 32 of the VCDR and article 45 of the VCCR). The latter is avoided in favour of more informal ways to address the problem, e.g. by having a severe talk with the head of the mission concerned. It is shown that there are a variety of ways to approach these types of situations before even considering to invoke the provisions mentioned above (in the Vienna Conventions), which are often seen as very controversial. (Less)
Please use this url to cite or link to this publication:
author
Lozancic, Monika
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Folkrätt, Straffrätt
language
English
id
1559816
date added to LUP
2010-03-08 15:55:24
date last changed
2010-03-08 15:55:24
@misc{1559816,
  abstract     = {This study looks into diplomatic and consular immunity under international law as applied by the Ministries of Foreign Affairs in Sweden, Denmark and The Netherlands. It does so by examining the practice and/or considerations of these Ministries in 10 different hypothetical cases where individuals enjoying such immunity commit crimes in respective State, i.e., abuse of local laws and/or regulations of the receiving State committed on the territory of the latter. The cases were chosen so as to cover some of the most common situations where individuals enjoying such immunity commit crimes. The situations are divided in two categories: conventional crimes (traffic offences, shoplifting and attempted fraud, slavery and threats of private servants, assault, murder, child abduction and rape) and crimes that have a specific meaning for persons enjoying immunity either because they are historically connected to the diplomatic or consular sphere or because their commission requires that the person in question is enjoying such immunity (espionage, smuggling of narcotics using the diplomatic or consular bag and abuse of import privileges). A large part of the study is also dedicated to giving an overview of the legal framework regarding diplomatic and consular immunity. It focuses on the 1961 Vienna Convention on Diplomatic Relations (VCDR) and the 1963 Vienna Convention on Consular Relations (VCCR), both when looking into the legal framework but also when looking into the Ministries' practice. The study concludes that there are both differences and similarities between the Ministries' practices and considerations in these cases. As an example one could mention the approach to waiver of immunity according to article 32 of the VCDR and 45 of the VCCR, where Sweden maintains a strict policy never to request waiver in cases where persons enjoying immunity commit crimes in the State, while in The Netherlands waiver can be requested but is often dependent on the public's demands in relation to the offense. The differing practice is due to the fact that neither the VCDR nor the VCCR require any reasons to be given by the receiving State when it makes the decision on which course of action to take and to the fact that the Conventions do not provide any guidance or other criteria to be applied when such a decision is made. The most prominent common denominators for all the three States' Ministries is however the fact that they - in most cases - take the same measures no matter if the person who committed the crime is a consul or a diplomat and their reluctance to employ the remedies provided in the VCDR and the VCCR specifically aimed at covering such situations, mainly the persona non grata-declaration (article 9 of the VCDR and article 23 of the VCCR) and the possibility of a request for waiver (article 32 of the VCDR and article 45 of the VCCR). The latter is avoided in favour of more informal ways to address the problem, e.g. by having a severe talk with the head of the mission concerned. It is shown that there are a variety of ways to approach these types of situations before even considering to invoke the provisions mentioned above (in the Vienna Conventions), which are often seen as very controversial.},
  author       = {Lozancic, Monika},
  keyword      = {Folkrätt,Straffrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {Diplomatic and Consular Immunities from National Jurisdiction in Criminal Cases - Practice from the Swedish, Dutch and Danish Ministries of Foreign Affairs},
  year         = {2009},
}