1961 Vcdr

[Alayna Rother]

TheVienna Convention on Diplomatic Relations of 1961 is an international treaty that defines a framework for diplomatic relations between independent countries.[2] Its aim is to facilitate "the development of friendly relations" among governments through a uniform set of practices and principles;[3] most notably, it codifies the longstanding custom of diplomatic immunity, in which diplomatic missions are granted privileges that enable diplomats to perform their functions without fear of coercion or harassment by the host country. The Vienna Convention is a cornerstone of modern international relations and international law and is almost universally ratified and observed;[1] it is considered one of the most successful legal instruments drafted under the United Nations.[4]

Throughout the history of sovereign states, diplomats have enjoyed a special status. Their function to negotiate agreements between states demands certain special privileges. An envoy from another nation is traditionally treated as a guest, their communications with their home nation treated as confidential, and their freedom from coercion and subjugation by the host nation treated as essential.

The first attempt to codify diplomatic immunity into diplomatic law occurred with the Congress of Vienna in 1815. This was followed much later by the Convention regarding Diplomatic Officers (Havana, 1928).

The present treaty on the treatment of diplomats was the outcome of a draft by the International Law Commission. The treaty was adopted on 18 April 1961, by the United Nations Conference on Diplomatic Intercourse and Immunities held in Vienna, Austria, and first implemented on 24 April 1964. The same Conference also adopted the Optional Protocol concerning Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of Disputes, the Final Act and four resolutions annexed to that Act. One notable aspect which arose from the 1961 treaty was the establishment of the Holy See's diplomatic immunity status with other nations.[5]

The immunities granted to diplomatic staff, and their families, are set out in the 1961 Vienna Convention on Diplomatic Relations (VCDR), the Vienna Convention on Consular Relations 1963 (VCCR) and Consular Relations Act 1968. The relevant provisions of the Conventions are applied in the UK by Section 2 of the Diplomatic Privileges Act 1964 (DPA 1964).

"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

Criminal immunity and inviolability in the UK is conferred on all Diplomatic Agents and Administrative and Technical Staff of foreign diplomatic missions and on all Consular Officers and Consular Employees at London-based foreign consular missions. To qualify for this immunity and inviolability, the staff must be: (1) accepted by His Majesty's Government (HMG) as the receiving State; and (2) notified to the Foreign and Commonwealth Office (FCO).

Whilst staff cannot be nationals of the UK or hold permanent UK residency, dual UK-Commonwealth nationals, who are recognised by HMG as members of their mission, are entitled to the immunity and inviolability to which that person would be entitled if they were not a British national. This does not extend to any of their dependents who may also be dual UK Commonwealth nationals.

Criminal immunity is only afforded to the Service Staff at foreign diplomatic or foreign London-based consular missions in respect of the acts performed in the course of their duties. However, such staff are not inviolable.

Criminal immunity and inviolability in the UK is conferred on all qualifying dependent household members of Diplomatic Agents and Administrative and Technical Staff of foreign diplomatic missions and Consular Officers and Consular Employees at London based foreign consular missions. To qualify for this immunity and inviolability, the dependent must be notified to, and accepted by, the FCO. The dependents of Diplomatic Agents and Consular Officers cannot be nationals of the UK; and the dependents of Administrative and Technical Staff and Consular Employees cannot be nationals of the UK or hold permanent UK residency.

Inviolability: Consular Officers accepted by HMG and notified to the FCO are not liable to arrest or detention pending trial, except in the case of a grave crime (one punishable on conviction, as a first offence, with a sentence of five years or more) and then only pursuant to a decision by the competent judicial authority. Consular Employees are not inviolable.

Upon the termination of their functions with their mission, qualifying officers and their qualifying dependents retain their privileges and immunities in the UK for 31 days, unless otherwise advised by HMG

Without a waiver of immunity from the sending State, London based staff and dependents who are inviolable, may only be detained as a last resort (such as being in danger of harming others or themselves). Staff at consular missions based outside of London and who are inviolable, may only be detained in the case of a grave crime (as detailed above) or as a last resort.

The FCO may request a waiver of a person's diplomatic immunity in order to arrest, interview under caution and, if appropriate, bring charges. A diplomat cannot waive his or her own immunity. Waivers can only be granted by the sending State. The FCO requests a waiver of immunity through the diplomatic mission concerned.

However, where the Police consider that there is sufficient evidence to justify court proceedings against an individual but the Head of Mission concerned does not agree to a waiver, the FCO may ask for the withdrawal of the individual and their family or declare them personae non gratae. Even if immunity is not waived, any other persons implicated as secondary parties to the diplomat's offence may still be prosecuted.

The position with members of ad hoc or 'special' diplomatic missions was clarified in the case of R (Freedom and Justice Party) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWHC 2010 (Admin). The High Court ruled that immunity arises at common law where the diplomatic status of that mission (and of the individual in question) is recognised by the Foreign and Commonwealth Office on behalf of HM Government. The Court of Appeal held that the Divisional Court had been correct to hold that a rule of customary international law had been identified which obliged a state to grant to the members of a special mission (which the state accepted and recognised as such) immunity from criminal proceedings for the duration of the special mission's visit: [2018] EWCA Civ 1719, [2018] All ER (D) 127 (Jul).

With regards to diplomats who are no longer in post, assistance can be drawn from the Supreme Court case of Reyes v Al-Malki & Anor [2017] UKSC 61. There, it was held that a former member of the diplomatic staff in London and his wife were not entitled to diplomatic immunity from the claim brought against them by the appellant (their domestic servant) as the employment and mistreatment of the appellant was not an act in the exercise of the diplomatic functions of the mission contrary to Article 39(2) of the VCDR.

While diplomatic premises in the UK are part of UK territory, they are inviolable and may not be entered without the consent of the Ambassador or Head of Mission. (See DPA 1964 section 2(1) and Schedule 3). Any offences committed in diplomatic premises in the UK are triable under the ordinary principles of English law, subject to the principles of diplomatic immunity for those who have it. Those who do not have this status (whatever their nationality) can be prosecuted as normal, as for example happened in the case of the terrorists who seized the Iranian embassy in London in 1980.

The definition of diplomatic premises is buildings or part of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of mission (VCDR 1961, Article 1(i)).

Similarly, while consular premises in the UK are part of UK territory, they are inviolable and may not be entered without the consent of the heard of the consular post or of the head of the diplomatic mission (see VCCR 1963, Chapter 2, Article 31).

The definition of consular premises is buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post (see VCCR 1963, Article 1 (j)).

In all such cases, the police officer will submit a report of the PaDP, and a copy is forwarded to the Protocol Directorate at the FCO. PaDP/FCO will provide information whether the offender has diplomatic status.

If a person with diplomatic immunity is the victim or witness to a crime, the officer in the case should request a waiver of immunity. Similarly, if a diplomat or an entitled family member is suspected of a crime, a waiver using the same form must be applied for before any investigation commences.

Prosecutors are reminded that any investigative material gained prior to the waiver will have no evidential value and that a person with diplomatic immunity cannot waive their own immunity. Failure to adhere to agreed protocols can have ramifications around the International Diplomatic Community.

Minor offences, such as motoring offences, will not usually be referred to the CPS. It is usually sufficient for a copy of the police report to be sent to the FCO. Diplomatic Missions and International Organisations Unit, Protocol, FCO will write to the Deputy Head of Mission (DHM) at the foreign mission concerned, and ask the DHM to remind his staff of the need to respect UK laws.

In more serious cases, and if the police think that the case is one that merits seeking a waiver of immunity, the PaDP will submit the full facts to the FCO and the Chief Crown Prosecutor (CCP) of the appropriate CPS Area. A serious case is defined under the FCO guidance as "an offence that might carry a custodial sentence of over 12 months".

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