Diplomatic Immunities and Privileges (DIAP)

Diplomatic Training Programme: Diplomatic Immunities and Privileges (DIAP)

• The Diplomatic Immunities and Privileges Act (DIAP) is South African domestic law incorporating the Vienna Convention on Diplomatic Relations (VCDR) 1961 and the Vienna Convention on Consular Relations (VCCR) 1963.
• The Act, No 37 of 2001 (amended No 35 of 2008), is structured as Schedule 1 (VCDR) and Schedule 2 (VCCR).
• Schedule 3 is the Convention on the Privileges and Immunities of the United Nations (1946).
• Schedule 4 is the Convention on the Privileges and Immunities of the Specialized Agencies (1947).
• South Africa applies equal treatment to all states, not reciprocity, as stipulated in Article 47(1) of the VCDR, and not Article 47(2).
• There are over 330 foreign missions in South Africa including diplomatic missions, consular missions, honorary consular missions, international organisations and one liaison office.
• South Africa has a large Diplomatic Corps with over 15,000 diplomats and their families registered under DIAP.

Implementation of DIAP

• DIAP's implementation rests on the Policy on the Management of Diplomatic Immunities and Privileges.
• State Protocol manages immunities and privileges of accredited diplomats, and is the South African authority on diplomatic identity documents, substitutions of Temporary Residence Visas (TRVs), and diplomatic properties.
• Diplomatic motor vehicles, appointments of Foreign and South African Heads of Diplomatic and Consular Missions, South African diplomatic passports, and foreign visas for SA diplomatic and official passport holders are other areas covered under DIAP.

Liaison function

• Liaison is conducted between State Protocol and SAPS (South African Police Service) relating to diplomatic security, with the public for minor immunity disputes, with the Chief State Law Adviser concerning international law on major disputes, and with the CCMA (Commission for Conciliation, Mediation and Arbitration) on labour disputes involving locally recruited personnel (LRP).

Immunities vs. Privileges

• Immunity: Procedural protection from enforcement processes in the receiving state.
• Privilege: Substantive exemption from the receiving state's laws and regulations.

Immunities and Privileges Differentiation

• Immunities: Inviolability
  • Property Inviolability: Inviolability of residence, vehicles, personal property, and documents.
  • Personal Inviolability: Inviolability from arrest or detention; right to be treated with courtesy and respect.
• Immunities: Immunity from Jurisdiction
  • Diplomatic Agent: Full immunity from civil and criminal jurisdiction.
  • Int'l Organisation Head & Deputy: Full immunity from civil and criminal jurisdiction.
  • Consular Agent/Admin/Tech: Functional immunity.
  • Int'l Organisation Officials: Functional immunity

Diplomatic Immunity

• Immunity from criminal jurisdiction.
• Immunity from civil and administrative jurisdiction, except matters involving private immovable property; succession; or professional/commercial activities outside diplomatic function.

Functional Immunity

• Immunity from criminal jurisdiction relating to acts performed during the exercise of consular functions.
• Individuals may not be arrested or detained pending trial.
• Dependents do not enjoy any immunities.

Different Levels

• Refer to the attached table for different levels of diplomatic immunities and privileges per category
• Refer to the attached policy on the Management of Diplomatic Immunities and Privileges

Diplomatic Inviolability

• Inviolability means no agent of the receiving state or its citizens can interfere with individuals entitled to immunities and privileges. This extends to diplomatic premises, property, diplomatic bags/pouches, the person of a diplomat, and their personal effects.

Diplomatic Bag/Pouch

• Diplomatic bags should not be opened or detained.
• They must bear visible external marks.
• Contents are for official use only.
• RSA Practice: Do not X-ray diplomatic bags; sniffer dogs should not intrude; report suspect bags to DIRCO.

Diplomatic Baggage

• The personal baggage of a diplomat is exempt from inspection, unless irregular/illegal content is suspected. Inspections must occur in diplomat's or agent's presence.

Current Practice

• Heads of State enjoy full diplomatic immunities and are exempt from security searches. Deputy Presidents and Ministers of Foreign Affairs have limited (or lesser) immunity.
• All other ministers and persons are subject to luggage searches.

Diplomatic Privileges

• Single diplomats have one car duty-free while married diplomats or those with partners have two cars duty-free.
• Other privileges include diplomatic number plates, fuel levy rebates, VAT refunds, payment of rates and taxes for foreign-owned property, exemption from personal and public service provisions, and duty-free purchases.
• Different immunities and privileges apply to different categories — see the attached annexure. This includes full diplomatic immunity and full privileges, functional immunities and full privileges, functional immunities with six-month entry privileges (IO and A), and functional immunities with no privileges like nationals of the receiving state, permanent residents, and honorary consuls.

Public Accountability

• Diplomats must respect receiving state laws and regulations (VCDR, Article 41).
• Included are acts such as: Diplomatic Immunities & Privileges Act, Vienna Conventions on Diplomatic & Consular Relations, Conventions on the Immunities & Privileges of the UN, Multilateral treaty agreements between SAG & International Organizations, and Bilateral agreements between SAG & Foreign Governments.

Public Accountability (Additional Acts)

• Foreign States Immunities Act, Immigration Act, Road Traffic Act, Value Added Tax Act, Customs and Excise Act, Firearms Act, SA Citizenship Act, SA Passports and Travel Documents Act, and Labour Relations Act.

Diplomatic Security

• The receiving state has a duty to ensure security for the diplomatic community including missions, consular posts, accredited international organizations, foreign representatives, and family members.
• SAPS' Diplomatic Policing Unit (DPU) is the nodal point.
• Regular patrols are conducted at missions and diplomatic residences.
• Other DPU responsibilities include attending to criminal cases against diplomats, providing security to missions, assessing security requirements of missions, providing advice to diplomatic missions on security, and conducting security threat analysis.

Diplomatic Categories

• Diplomatic immunity is constant.
• Functional immunity applies only during official duties.
• Diplomatic passports do not guarantee immunities; only the accredited to the receiving state(s) enjoy benefits.

Diplomatic Challenges

• Abuses of immunities and privileges, such as using immunity to avoid paying rent or fines, or reselling duty-free items at a profit.
• Rates and taxes on foreign-owned property in South Africa are a significant responsibility (approximately R55 million per year currently).

Abuse of Status by a Diplomat & Remedies

• Diplomats must respect receiving state laws.
• Remedies include requesting an apology, waiver of immunity, recall of the offending diplomat, de-registering and requesting departure from accreditation, and declaring the offending diplomat persona non grata.

Disputes Between States

• Breach of international law allows: pursuing actions at the International Court of Justice; requesting apologies or rectification; and severing diplomatic relations.

Thank You