Diplomatic Immunities and Privileges (DIAP) Presentation PDF

DIPLOMATIC TRAINING PROGRAMME Lyn de Jong Diplomatic Immunities and Privileges (DIAP)  DIPLOMATIC RELATIONS OFFICIAL REPRESENTATION The Vienna Convention on Diplomatic Relations (VCDR), 1961 and the Vienna Convention on Consular Rela...

DIPLOMATIC TRAINING PROGRAMME Lyn de Jong Diplomatic Immunities and Privileges (DIAP)  DIPLOMATIC RELATIONS OFFICIAL REPRESENTATION The Vienna Convention on Diplomatic Relations (VCDR), 1961 and the Vienna Convention on Consular Relations (VCCR), 1963 are incorporated in the South African Diplomatic Immunities and Privileges Act, No 37 of 2001 (amended No 35 of 2008) as Schedule 1 (VCDR) and Schedule 2 (VCCR) respectively thus making it domestic law 2  DIPLOMATIC RELATIONS OFFICIAL REPRESENTATION (cont) 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 Specialised Agencies, 1947 The Act is commonly referred to as the DIPA 3  DIPLOMATIC RELATIONS OFFICIAL REPRESENTATION South Africa applies Equal Treatment to all States in terms of Article 47 (1) of the VCDR and not Reciprocity in terms of Article 47 (2) This means that all Foreign Missions enjoy the same immunities and privileges in South Africa 4  DIPLOMATIC REPRESENTATION  There are in excess of 330 foreign missions in South Africa consisting of diplomatic missions, consular missions, honorary consular missions, international organisations and one liaison office  South Africa has a large Diplomatic Corps presence with over fifteen thousand diplomats and their families who are registered by DIAP 5  IMPLEMENTATION OF THE DIPA Flowing out of the Diplomatic Immunities and Privileges Act is the Policy on the Management of Diplomatic Immunities and Privileges which determines the operationalisation of the DIPA In this regard State Protocol confers and manages immunities and privileges in South Africa of accredited diplomats and is the South African authority on: Diplomatic identity documents; Substitution of Temporary Residence Visas (TRV’S); Diplomatic properties; 6  IMPLEMENTATION OF THE DIPA Diplomatic motor vehicles; Foreign and South African Heads of Diplomatic and Consular Mission Appointments; South African diplomatic passports; Foreign visas for SA diplomatic and official passport holders 7  IMPLEMENTATION OF THE DIPA (cont) Liaison function: with SAPS on diplomatic security; with the public on minor immunity disputes; with the Chief State Law Adviser on International Law on major disputes; with the CCMA on labour disputes involving Locally Recruited Personnel (LRP) 8  IMMUNITIES vs. PRIVILEGES  Immunity: Confers a procedural protection from the enforcement processes in the receiving State  Privilege: Some substantive exemption from the laws and regulations of the receiving State  IMMUNITIES AND PRIVILEGES DIFFERENTIATION IMMUNITIES PRIVILEGES & EXEMPTIONS INVIOLABILITY IMMUNITY FROM JURISDICTION Property Personal Diplomatic Agent Consular Agent Inviolability Inviolability Admin/Tech Inviolability of Inviolability from Full immunity Functional residence, vehicles arrest or detention civil and criminal immunity personal property Right to be treated and documents with courtesy and Int Organisation Int Organisation respect Head & Deputy & P5 Officials 10  DIPLOMATIC IMMUNITY What does it mean?  Immunity from jurisdiction in criminal cases;  Immunity from jurisdiction in civil and administrative cases, except matters involving Private immovable property; Succession: executor/heir in private capacity; Any professional / commercial activity outside diplomatic function 11  FUNCTIONAL IMMUNITY What does it mean?  Immunity from jurisdiction in criminal cases in respect of acts performed in the exercise of consular functions only and may not be arrested or detained pending trial  Dependents do not enjoy any immunities 12  DIFFERENT LEVELS Kindly refer to the attached table indicating the different levels of diplomatic immunities and privileges per category Kindly also refer to the attached Policy on the Management of Diplomatic Immunities and Privileges 13  DIPLOMATIC INVIOLABILITY What does it mean?  Inviolability is the term used to express the rule that no agent of the receiving State or its citizens may interfere with anyone entitled to immunities and privileges 14  DIPLOMATIC INVIOLABILITY (cont) What does it imply?  Inviolability of diplomatic premises;  Inviolability of diplomatic property;  Inviolability of the diplomatic bag / pouch;  Inviolability of the person of a diplomat;  Inviolability of personal effects of the diplomat 15  DIPLOMATIC INVIOLABILITY DIPLOMATIC BAG / POUCH Vienna Convention on Diplomatic Relations: Art 27  The diplomatic bag shall not be opened or detained  It shall bear visible external marks (and seal in practice);  Contents must be for official use of the mission RSA Practice:  Do not X-ray diplomatic bags: protect integrity;  Sniffer dogs do not intrude on integrity of contents;  Report suspect bags to DIRCO 16  DIPLOMATIC INVIOLABILITY DIPLOMATIC BAGGAGE Vienna Convention on Diplomatic Relations: Art 36  The personal baggage of a diplomat shall be exempt from inspection; or  Inspection of suspect baggage with irregular / illegal content shall be conducted in the presence of the diplomat or his / her appointed agent; e.g. # Articles prohibited by law; # Articles violating quarantine regulations 17  DIPLOMATIC INVIOLABILITY Current practice: It should be noted that all Heads of State enjoy full diplomatic immunities and are not subject to security searches under international law. This does not apply to Deputy Presidents. Ministers of Foreign Affairs, to a lesser extent also enjoy immunities. All other Ministers and persons are subject to search and scanning of their luggage. 18  DIPLOMATIC PRIVILEGES These are contained in the Policy on the Management of Immunities and Privileges, for example, a single diplomat gets one car duty free whilst a married diplomat (or with a life partner) get two cars duty free. Other examples are diplomatic number plates, fuel levy rebates, certain VAT Refunds, payment of rates and taxes for foreign owned properties, exemption from personal and public service and exemption from social security provisions, and duty-free purchases 19  DIPLOMATIC PRIVILEGES (cont) There are different immunities and privileges that apply to different categories – kindly see the attached Annexure Full diplomatic immunities and full privileges Functional immunities and full privileges Functional immunities and Six Month Entry Privileges (IO and A) Functional immunities and no privileges – national of the receiving State or Permanent Resident, Honorary Consuls 20  PUBLIC ACCOUNTABILITY In terms of the VCDR, Article 41, all diplomats must respect the laws and regulations of the receiving State. Below are some of these, e.g. a diplomatic may not speed and must pay any fines issued: Diplomatic Immunities & Privileges Act; Vienna Conventions on Diplomatic and Consular Relations; Conventions on the Immunities and -Privileges of the UN; Multilateral treaties between SAG and International Organisations; Bilateral agreements between SAG and Foreign Governments 21  PUBLIC ACCOUNTABILITY 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; Labour Relations Act 22  DIPLOMATIC SECURITY  VCDR: Receiving State has a special duty to provide security to the diplomatic community i.e. diplomatic missions, consular posts, accredited international organisations; foreign representatives and accredited members of family.  SAPS: Diplomatic Policing Unit (DPU)  DPU nodal point for diplomatic security  Conducts regular patrols at missions and diplomatic residences 23  DIPLOMATIC SECURITY  Attends to criminal cases against diplomats;  Provides security to missions for diplomatic functions;  Assesses security requirements of diplomatic missions;  Advice to diplomatic missions on security;  Conducts security threats analysis on missions for static policing 24  DIPLOMATIC CATEGORIES  Diplomatic Immunity is immunity at all times  Functional Immunity is immunity only in the exercise of official duties A diplomatic passport does not translate to diplomatic Immunities and Privileges; immunities only apply to those who are accredited to a receiving State(s) 25  DIPLOMATIC CHALLENGES  Challenges being faced are abuses of diplomatic immunities and privileges by accredited diplomats and family members who misuse their immunities, for example, claiming immunities when they refuse to pay rent, refusing to pay for traffic violations, or for services however they are compelled to adhere in terms of the VCDR  Other challenges are the abuse of privileges when diplomats purchase items duty free and resell the items at a profit, e.g. alcohol. This is a transgression of the DIPA 26  DIPLOMATIC CHALLENGES In terms of Section 11 of the DIPA, the rates and taxes of foreign owned properties are paid. This is a significant financial responsibility of approximately R55 million per year at present 27  ABUSE OF STATUS BY A DIPLOMAT REMEDIES AVAILABLE TO THE RECEIVING STATE Diplomats bound to respect laws of receiving State (Art 41); Request an official apology by sending State (Note Verbale); Request sending State to waive immunity (Sec 8); Request sending State to recall offending diplomat; De-register offending diplomat from DIRCO accreditation and request immediate departure; Declare offending diplomat Persona Non Grata 28  DISPUTES BETWEEN STATES REMEDIES AVAILABLE TO STATES Breach of International Law: May approach International Court of Justice; Request an official apology or correction of a wrong; The sending State may sever diplomatic relations 29 Thank you 30