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Instances of abuse of diplomatic immunity are in the
headlines frequently in recent years. Just yesterday a Vatican diplomat in the U.S.
was recalled following allegations pertaining to child pornography.[i] The Vatican refused to waive immunity. Although the most egregious cases involve
criminal acts such as this and sexual assault, immunity is commonly invoked
also for matters of civil liability, such as failure to pay rent, motor vehicle
accidents, and even abuse of domestic workers including slavery.[ii]
Diplomats and their
families enjoy almost complete immunity from any legal liability in the host
country. When significant wrongdoing
comes to the attention of the Canadian government, it routinely requests from
the diplomat’s home country a waiver of immunity, but that request is usually
refused. That said, very often the
diplomat’s superiors often voluntarily send him or her back home, and sometimes
the diplomat will face legal proceedings there. The host country has the right, without
giving a reason, to declare a diplomat “persona
non grata” and require him or her to leave the country.
The Vienna Convention on Diplomatic Relations, which has been adopted
into Canadian law by way of the Foreign
Missions and International Organizations Act, S.C. 1991, c. C 41, states at
Article 31 that diplomatic immunity is not limited to criminal matters but extends
also to civil and administrative jurisdiction, subject to certain exceptions. Immunity
extends to the diplomat’s family. Further, “no measures of execution may be
taken …[unless]… the measures concerned can be taken without infringing the
inviolability of his person or of his residence”. (Art 31 (3). In other words, even if a diplomat
could be held liable for damages, if his or her only significant asset is his
home, there might not be a practical remedy available.
The
purpose of diplomatic immunity is easy enough to understand, and is succinctly
stated in the Convention: “the purpose of such …immunities is not to benefit
individuals but to ensure the efficient performance of the functions of
diplomatic missions as representing States” (Convention Preamble). An individual diplomat could very
foreseeably become a pawn in a dispute between two states, or be vulnerable to
persecution simply because he or she represents a country towards which the host
country is hostile. As well, to the extent that a diplomat who commits a crime can be expelled, the need for a criminal prosecution is lessened. However, while expulsion will prevent that diplomat from doing further
harm, it is no remedy for the harm already done.
Recognizing that a
balance must be struck between protection of the diplomat and prevention of abuse
of immunity, the Convention carves out a few exceptions to the immunity from
civil liability, in Art. 31(1)), namely:
·
(a) a real
action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the
purposes of the mission;
·
(b) an action
relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the
sending State;
·
(c) an action
relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
As well, if a diplomat (or a relative) sues someone, the
diplomat cannot invoke immunity in respect of any counter-claim directly
connected with the principal claim.
It is far from obvious as to why
this list of exempted types of claims should be so short. Why is tort liability for assault or wrongful
death not included? Or defamation for
statements made in a private capacity, and unrelated to relations with the host
country? Arguably, the rule should be
reversed, such that the diplomat is not immune from civil liability except in
certain cases, which are either listed or determined on a case - by - case
basis. A
private claim by a private citizen against a diplomat is less likely than a
criminal prosecution brought by the state to be the type of harm the immunity is
intended to prevent.
There have been limited reforms in Canada. The Justice for Victims of Terrorism Act S.C. 2012 c. 1 does broaden
the scope of civil liability, if the wrong done constitutes terrorism. See the recent Ontario Court of Appeal
decision upholding enforcement of an American judgment against the Islamic
Republic of Iran in Tracy v Iran
[2017] O.J. No, 3480.
Admittedly, revising the Vienna
Convention will not be easy; 191
countries are parties to it. That’s all
the more reason to start sooner rather than later.
[i] https://www.theatlantic.com/international/archive/2017/09/vatican-diplomat-child-pornography/539988/
[ii] “Stunt
Driving, tax evasion, child abuse among allegations against foreign diplomats living
in Canada” http://www.cbc.ca/news/politics/diplomats-illegal-traffic-abuse-violence-debt-tax-ottawa-child-1.4164649
