The Costs of Diplomatic Immunity

by Duncan Hollis

International lawyers are used to explaining to skeptics the functional case for diplomatic immunity by emphasizing the benefits it provides.  Here’s the 5 second version: we want our diplomats to be able to communicate with their host States since the alternative to communication is often (and certainly used to be) conflict.  To ensure open communication we need diplomats who feel free to operate without fear of being coerced, pressured, extorted, etc., So, we grant diplomatic immunity to ensure freedom of communication and do so reciprocally as a check against abuses, with the only remedies being waiver or a declaration of persona non grata.

Of course, these benefits do not come without costs.  And the British Government at least has been keeping a ledger of such costs.  In particular, the City of London would like diplomatic missions to pay London’s congestion charges.  It looks like a large number of governments, including my own, have decided not to pay.  The running tally of unpaid charges? 67 million pounds!  That’s quite a sum, but, it doesn’t even attempt to monetize the costs of the criminal offenses committed (or alleged to have been committed) by diplomats.  Here’s how the BBC summarizes that sort of bad diplomatic behavior from 2012:

[T]he Foreign Office was informed of 12 “serious offences” committed by people with diplomatic immunity in 2012.

These are defined as offences which could carry 12 months or more in prison, as well as drink-driving and driving without insurance.

He said 10 of the alleged offences were driving-related, including six for drink-driving – three by Russians.

The non-driving offences alleged were abuse of a domestic worker and causing actual bodily harm.

In the “most serious” cases the UK asks foreign governments to waive immunity to allow prosecution, or to withdraw an accused diplomat.

About 22,500 people get diplomatic immunity in the UK and Mr Hague said “the majority” abide by UK law.

To my mind, none of this outweighs the substantial benefits of diplomatic discourse I referenced above.  Still, I do think it’s important to appreciate the costs of doing diplomacy.  What do others think — should governments have to pay congestion charges (let alone parking tickets?).  More importantly, is 12 serious offenses out of a population of 22,500 a good number or a bad one?  And if you think it’s bad one, is there a way to fix the diplomatic immunity cost-benefit calculus without throwing the whole system under the bus?

http://opiniojuris.org/2013/07/11/the-costs-of-diplomatic-immunity/

8 Responses

  1. As a non jurist I have great difficulty understanding how diplomatic communications are hindered by requiring diplomats to adhere to the law.
    Yes, we may see persecution or some sort of gaming-the-system-approach, but how does insisting on paying a parking fee, or the prohibition on modern day slavery interfere with diplomacy? The abuse of diplomatic immunity is pandemic (not in the last place by using it to instigate CIA programs) and since mr Bush abolished the notion that negotiations are a better longterm solution for conflicts than blind military campaigns, one wonders why we have diplomats at all.

  2. As to London Congestion Charge, I understand that the legal position is said to be arguable.  I think it may be summarised in simple terms thus:  If the congestion charge is a fee for a service, it is payable.  If it is taxation, the diplomats are exempt.
    Perhaps an agreeable solution would be to submit the dispute to non-binding and public arbitration by a panel under the Rules of the International Chamber of Commerce – and yes, I know that commercial arbitration normally is private, and no, arbitration normally is not for public law issues.
    Let the Mayor offer an agreement to arbitrate with the US Embassy in an open letter.  As they say, let’s run up the flag and see who salutes.

  3. I’ve never studied the subject, but DI seems to me to be a function of governmental humility, and the limits of jurisdiction.  MY government is just one government among many, and unless I think MY government is the Roman Empire with universal jurisdiction—well, there are going to be cases where my law just can’t reach.
    Coming at it from another angle— British assessment of traffic fees on China is a statement that Britain sees its legal system as, not equal with China, but ABOVE China.  Which is a bad public stance to take prior to negotiations.
    So I think it’s more than just those quotidian, base “economic” arguments about “free and effective communication,” etc.

  4. Of course, there’s an arms-race argument as well.  Would American diplomats in Saudi Arabia have to comply with sodomy laws?  Heaven forefend!

  5. Diplomats have been prosecuted in the past for war crimes, e.g., the French case of Abetz in 1952 and see United States v. Weizsacker, et al. (The Ministries Case) addressed in Paust, Bassiouni, et al., International Criminal Law 51 n.3(4 ed. Carolina Academic Press 2013), and in 34 Houston Journal of International Law 57 (2011).  Most international criminal law instruments apply expressly to, e.g., “any person who”

  6. For your information, in 2012, the Austrian Foreign Ministry has issued 1220 Notes to relevant Embassies and Missions in Vienna for various types of violations by diplomatic vehicles. With privileges and immunities, diplomats in Vienna hardly pay any fines for unlawful parking, red-light crossing or speeding…etc. Now the Austrians are trying to encourage Embassies and Missions to pay the administrative penalties. I wonder how Austrians may succeed in this attempt as New York  once failed to rein in diplomats. 
     
     

  7. I am no economist, but I don’t think unpaid congestion charges constitute an economic “loss” per se. Congestion charges involve only transfer of wealth, not creation of wealth. If immunity leads to more crime (which is a plausible assumption), and crime causes economic losses (which it usually, though not necessarily, does), then diplomatic immunity causes losses. But measuring the losses is more complicated than adding up unpaid congestion charges.

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