Ps&Is for DWIs – What should the Public Know?

by Duncan Hollis

In order for diplomatic missions to function, international law has long accorded diplomats and their families immunity from all local criminal laws.  And when a major crime occurs involving a diplomat, there’s often a lot of press attention on the case by virtue of the privileges and immunities (Ps&Is) involved.

But Ps&Is aren’t limited to allegations of rape or manslaughter, they extend to ALL local laws, often posing problems for the host State as it tries to police dangerous behavior while also complying with its international law obligations.  So, how do States deal with day-to-day misdemeanors or mid-level criminal activities?  In Australia, they write letters.  As this story in ninemsn notes:

More than two dozen foreign diplomats and consular officials have been warned about repeated or serious driving offences on Australian soil over the past three years.

The offences include drink driving, speeding more than 30km/h over the limit, running red lights, driving while talking on a mobile phone and not wearing a seat belt. But none of the offenders can be prosecuted or even lose their driving licence because of diplomatic immunity.

The offences are outlined in 26 warning letters sent by the Department of Foreign Affairs since 2010 to the heads of various foreign embassies and consulates about members of staff who had lost seven or more demerit points on their licence or who were involved in a serious driving incident that came to the attention of police.

One letter describes a diplomat who lost 15 demerit points from 11 speeding fines in just 15 months. Another refers to a diplomat who was deemed too drunk to continue driving after being intercepted by police on Canberra’s Commonwealth Avenue Bridge at 1am on a Sunday. Police only agreed to release him when one of his own passengers agreed to get behind the wheel and take him home.

The story links to the actual letters sent out by the Australian Foreign Ministry – see here.  I found the extensive redactions especially interesting — looking at the documents, you don’t know who did what or what government she or he represented.  The Australian Chief of Protocol explains that disclosing such details could damage Australia’s good relations with foreign governments and “their willingness to cooperate and communicate with Australian government officials in the future.”

Hmmm.  Now, I’m a supporter of P&Is for their functional value — I truly believe they are a key cog in diplomatic machinery.  But, I’m less sanguine about the lack of transparency the Australian letters suggest.  True, under the Vienna Convention on Diplomatic Relations (VCDR), Australia has to accord these foreign diplomats immunity.  But, I don’t think there’s anything in the VCDR that requires Australia to refrain from having transparency about what would otherwise have been violations of its domestic law but for the application of Ps&Is.  Now, maybe if Australia were to selectively announce incidents for some states’ representatives and not others, it might have a problem (VCDR Article 47 requires non-discrimination by the host State with respect to the provision of VCDR rights, but that’s assuming we’re talking about VCDR Ps&Is here, which I don’t think we are).

As it stands, it seems like Australia’s trying to avoid bad publicity for wayward diplomatic activity.  And whatever the Ps&Is do functionally, it’s worth noting sending States have a duty of their own here — see, e.g., VCDR Article 40:

1.Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.

In short, it doesn’t seem like there’s any legal requirement to explain Australia’s redactions here.

Nor am I completely persuaded by the supposed policy in play that keeps such information private.  Of course, it makes relations easier if governments keep foreign diplomatic transgressions from the public eye.  And, I have no doubt sending States take these sorts of communications from States like Australia seriously; I suspect some recipients (but certainly not all) will pursue internal investigations of their own.

But, does it really serve the interests Ps&Is protect to make sure diplomats don’t get their names listed in the paper or on-line as most “regular” citizens are when they are identified in a police report?  If anything, Australia’s policy seems likely to contribute to continuing public hostility to the very idea of Ps&Is. Rather than covering up the way Ps&Is operate, wouldn’t States be better served by educating and explaining the system whenever it’s invoked, thereby normalizing it in some way?  Moreover, does the fact that diplomats know they won’t even be publicly linked with their bad behavior further weaken any incentive to respect local laws from where things stand with Ps&Is already?  That said, I can see that in today’s news-a-minute world, publicity could itself become a tool host States could use to influence foreign diplomatic behavior and thus something that should be protected from abuse.  If that’s so, however, is it enough to have a “policy” on non-public disclosure, especially, when exceptions are clearly made for “big” cases?   

What do others think?  Should host government like Australia keep quiet about foreign diplomatic run-in’s with local law enforcement?  Or, does the public have some interest in more disclosure of such events where Ps&Is are invoked or applied?

http://opiniojuris.org/2013/02/02/psis-for-dwi/

5 Responses

  1. One should have a look at Art. 29 VCDR which stipulates the receiving states’ obligation to treat diplomats with due respect and to protect them from any attack on his dignity (honour resp.). I think this could be a legal requirement not to publish names of diplomats involved in such incidents. Such a practice could create a certain pillory situation, even for “small cases” and therefore constitute an attack on the diplomats’ honour. It’s questionable where to draw the line here, but I think in the light of the very funtion of the system of Ps&Is and the problem of abuse, Australia’s policy is justified from a legal point of view.

  2. Though young, I’ve found this dynamic to be a common one: nobody likes to get called out on their wrongdoing, and calling them out on it tends to invite social retaliation including ostracism.  Are international relations a bit more mature? I certainly hope so.  Regardless, public shaming as a first step would likely invite non-constructive reaction: the named-and-shamed country may have more incentive to deny the allegations rather than fix the problem internally.  If the public has an interest in knowing who did what, it stems from the fundamental interest of not having crimes committed.  To that end, I think what Australia’s done is a good first step.
     
    If conduct continues – i.e. if a foreign country does not respond appropriately – then perhaps a next step is to more publicly name and shame.  But I don’t think the public absolutely must have a right to know.
     
    Another consideration is that in addition to being afforded Ps&Is, diplomats are also innocent until proven guilty.  Depending on how these letters are interpreted upon mass dissemination to the public, that fundamental principle may get short shrift.

  3. Jonathan and Bryan C — Thanks for the cogent comments.  I agree with Jonathan that there does need to be some line drawing here and that there are arguments on the non-disclosure side. Thus, I like Bryan C’s point that maybe disclosure is not a first, but rather, a second move with respect to recalcitrant States. I’d be interested, moreover, in what others know about how Article 29 has applied to such cases, if at all.  

  4. Hi Duncan,

    My brief look at the document suggest the culprit is not an international law obligation, but rather the result of Australia’s broad exemptions under the Commonwealth Freedom of Information Act. I’m not currently at my computer, but if I recall correctly, section 33 provides that an agency (here DFAT) can withhold information where it may cause harm to the international relations of Australia. This is an exemption similarly legislated for by the UK and the US. So regarding whether or not the redaction of foreign goverments is required by international law, I have nothing to add. But certainly it is something which the Australian government is empowered to do.

  5. This report exposes the excessive secrecy and abundance of caution the Australian foreign ministry brings to the FOI decision making table where the law is weak, and as one of your commentators states, with an absolute exemption for documents that can reasonably be expected to damage international relations. Those  terms have been broadly defined in the courts. But the ministry is also good at bureaucratic bungling as demonstrated by the recent experience detailed in this blog post-10 weeks where they claimed a request was “complex and voluminous”, turning up in the end one document containing one relevant sentence containing information already in the public domain.
    http://www.foi-privacy.blogspot.com.au/2013/02/foi-classic-voluminous-and-complex.html#.URI5wOh9YdM
     

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