Possible remedies to prevent the misuse of diplomatic immunity
DOI:
https://doi.org/10.31261/zpppips.2023.21.10Keywords:
diplomacy, international relations, diplomatic immunity, Vienna Convention on Diplomatic RelationsAbstract
Since 1945, diplomatic immunity has altered. There are many factors which inhibit immunity. Firstly, consistent Cold War retaliation existed. Second, national security in the nuclear age was prioritized. The intricacy of international politics and mission expansion influenced a change. Also, the abuse of diplomatic and non-diplomatic immunity necessitated modification. In the 1960s, when hundreds of diplomats were sued, diplomatic immunity was called into doubt. Diplomatic abuses should force a reform of the Vienna Convention. Functional needs explained immunity modifications in the 1960s. Increasing and expanding immunity categories contributed to the improvement of the theory. However, there is no abuse remedy that is universally acceptable and enforceable. Should functional necessity theory replace immunity’s cloak? The pacta sunt serva concept of the noncontroversial law of treaties could be utilized to obtain multilateral agreement on the nature, cause, and effect of the functional necessity theory. A Permanent International Diplomatic Criminal Court with mandatory jurisdiction over accused diplomats and its own punishment system has been under discussion since the late 1980s. It never occurred, yet it may have resolved the diplomat disagreement between the victim and the accused.
References
Ali, M.F.: Diplomatic Immunity and Diplomatic Crime: A Legislative Proposal to Curtail Abuses. “Journal of Legislation” 1989, Vol. 16, p. 102.
Bekou, O. and R. Cryer: The International Criminal Court and Universal Jurisdiction: A Close Encounter? “International and Comparative Law Quarterly” 2007, Vol. 56, pp. 49–68, 60.
Charney, J.I.: The Impact on the International Legal System of the Growth of International Courts and Tribunals. “New York University Journal of International Law” 1999, Vol. 31, pp. 697–708.
Charney, J.I.: The Impact on the International Legal System of the Growth of International Courts and Tribunals, supra note 30.
Charney, J.I.: The Impact on the International Legal System of the Growth of International Courts and Tribunals, supra note 30.
Farhangi, L.S.: Insuring Against Abuse of Diplomatic Immunity. “Stanford Law Review” July 1986, Vol. 38, pp. 1517–1548.
Garnett, R.: State and Diplomatic Immunity and Employment Rights: European Law to the Rescue? “The International and Comparative Law Quarterly” October 2015, Vol. 64, No. 4, pp. 783–827, at https://www.jstor.org/stable/24761320 (visited Jan. 12, 2023).
Hall, C.K.: The First Proposal for a Permanent International Criminal Court. “International Review of the Red Cross” 1998, Vol. 38, pp. 57–74, 57.
Hickey, J.E. Jr. and A. Fisch: The Case to Preserve Criminal Jurisdiction Immunity Accorded Foreign Diplomatic and Consular Personnel in the United States. “Hastings Law Journal” 1990, Vol. 41.
Kingsbury, B.: Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem. “New York University Journal of International Law and Politics” 1999, Vol. 31, pp. 679–696, 682.
Kingsbury, B.: Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem, supra note 31, p. 683.
Maginnis, V.L.: Limiting Diplomatic Immunity: Lessons Learned from the 1946 Convention on the Privileges and Immunities of the United Nations. “J. Int’l L” 2003, Vol. 28, at https://brooklynworks.brooklaw.edu/bjil/vol28/iss3/6 (visited Apr. 3, 2022).
Moutzouris, M.: Sending and Receiving: Immunity Sought by Diplomats Committing Criminal Offences. Rhodes University, 2008, p. 165.
Parkhill, J.S.: Diplomacy in the Modern World: A Reconsideration of the Bases for Diplomatic Immunity in the Era of High-Tech Communications 21. 1998.
Parkhill, J.S.: Diplomacy in the Modern World: A Reconsideration of the Bases for Diplomatic Immunity in the Era of High-Tech Communications, supra note 6.
Petersen, N.: The International Court of Justice and the Judicial Politics of Identifying Customary International Law. “European Journal of International Law” 2017, Vol. 28, pp. 357–85, 364.
Posner, E.A. and J.C. Yoo: Judicial Independence in International Tribunals. “California Law Review” 2005, Vol. 93, pp. 1–74, 4.
Ross, M.S.: Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities 4. 2011.
Schulte, C.: Compliance with Decisions of the International Court of Justice. Oxford University Press 2004.
Southwick, J.T.: Abuse of Diplomatic Privilege and Immunity: Compensatory and Restrictive Reforms 1. “Syracuse Journal of International Law and Commerce” 1988, Vol. 15, pp. 83–102.
Vienna Convention on the Law of Treaties, 14.
Ward, N.P.: Espionage and the Forfeiture of diplomatic immunity. “Int’l L” 1977, Vol. 11.
Wright, S.L.: Diplomatic Immunity: Proposal for Amending the Vienna Convention to Deter Violent Criminal Acts. „Boston University International Law” 1987, Vol. 5.
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