Friday, 15 September 2017

Diplomatic Immunity for Civil Liability is Too Broad

              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.

[ii] “Stunt Driving, tax evasion, child abuse among allegations against foreign diplomats living in Canada”

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