Thesis statement
Immunities from criminal to civil actions are granted between nations that have diplomatic ties because they have officials who are personal representatives of the head of state. The abuses are increasing because immunity is offered to diplomats who use it to protect themselves from being prosecuted even if they commit a crime. There are various cases where immunity is abused such as people avoiding to pay tax to the government, criminals failing to be charged in a court of law, and individuals importing goods without paying import duty.
Immunities
Diplomatic immunity is a principle used by international law where certain officials of a foreign government are not subject to the jurisdiction of authorities and local courts. Ancient tribes are the ones who began the concept of immunity. Information was exchanged through messengers traveling from one tribe to another without the fear of being harmed and they were not protected even when they had brought bad news.
Today, immunity is used to protect diplomatic communication channels by diplomats being exempted from the local jurisdiction to be able to perform duties with security, freedom, and independence. Diplomatic immunity is not supposed to be of personal benefit to individuals; it is used to ensure that foreign officials are able to perform their jobs. Under reciprocity, diplomats who are assigned to various countries in the world enjoy equal benefits from diplomatic immunity. (Ashman, 1986 pp24-28)
The Vienna convention about diplomatic immunity and consular relations provides people with immunity depending on their rank in a consular post or diplomatic mission and according to the kind of immunity needed for them to be able to perform their duties. For example, diplomatic members and agents of immediate families get immunity against criminal prosecution and civil lawsuits. Technical and administrative staff members of the embassies receive immunity at low levels. Consular officers who serve throughout the country in consulates have the immunity of lower levels and staff members of embassy service and consular employees receive immunity for acts that are performed as official duties.
Diplomats get exempt from the civil, administrative, and criminal jurisdiction of the host country but the exemption is waved by the home country. Moreover, immunity for a diplomat who is from the jurisdiction of the host country is not allowed to exempt him from the jurisdiction of his home country. Discretion of host country declares any member of diplomatic staff who is unwanted or persona non grata and this happens any time when there is no obligation for explaining such a decision. If such a situation occurs, as a rule, the home country recalls the involved person and terminates his function in the mission. (Dickinson, 2004 pp11-15)
Specific measures are provided by the Vienna Convention that is taken by home and host countries if there arise cases of abuse or misuse of immunities and diplomatic privileges. Diplomatic immunities and privileges serve as efficient tools which help to facilitate state relations. Diplomatic immunities guarantee diplomatic members or agents of immediate family where they can not be prosecuted, subpoenaed as witnesses, detained, or arrested and their residences can not be entered into and searched.
There were many instances where oppression and state justice occurred in state legislation of flagrant violations of immunity of citizens in the United States which national government-furnished and could not furnish remedy centrally to constitutions express letter. There was the infliction of unusual and cruel punishments under state laws with a union of citizens for sacred duty that was done and crimes committed against which and for which the United States government provided no remedy.
The United States fourteenth amendment of the constitution is unique in its provisions because there is believed by some scholars that it was read out substantially in Supreme Court decision and the clause has remained dormant since that time. The immunities clause originally was intended to incorporate the first eight amendments of the United States bill of rights that was against state governments and incorporate constitutional rights against state governments.
However, the incorporation has been achieved using the Fourteenth Amendment Due Process Clause that series of decisions of supreme courts such as Duncan versus Louisiana in order to incorporate protection and amendment rights as privileges of State residents. (Fox, 2004 pp34-39)
In the cases of the slaughterhouse, the court recognizes the rights of citizens who are citizens of the United States and are covered by the immunities clause of the fourteenth amendment while rights of citizens for belonging to a state are under article four of the immunities clause. Slaughterhouse did not prevent the Bill of rights from being applied to the states through the immunities clause but instead, there was a violation of a person’s natural rights by state monopoly for the person to engage in trade, do business, or vocation. This means that there was no bill of rights provision that was issued in that case and no other right that followed in the constitution.
Citizens were given constitutional immunity from acts of states that were abridging as each of them was recognized to have possession from congress abridgment. What Congress was forbidden to do previously was to pass the fourteenth amendment which any state was forbidden. There was anticipation that the immunity clause protects state infringement a broad range of rights that exceeded what was enumerated in the Bill of Rights. However, this was because of interpreting immunities in the original constitution before the amendment. According to how the older clause was interpreted, it was noted that people who framed the fourteenth amendment knew that the Supreme Court had not defined its nature or immunities in the original constitution and the matter of interpretation was left in the hands of the judiciary. (Van, 2007 pp14-18)
One of the arguments against the interpretation of the immunities clause as a requirement of states to comply with a bill of rights is the interpretation renders the fourteenth amendment Due Process Clause redundant. Although this question has been raised by constitutional scholars, fourteen amendments intended to extend the right to due process to citizens and other people. A similar issue of redundancy is posed by how immunities are interpreted in order to guarantee equality. (Barker, 1996 pp13-17)
Abuse of immunity
There was a ruling by a federal judge that the Holy See is considered as a foreign state and enjoys immunity protections by placing restrictions of lawsuits by three men who alleged that after children were abused sexually by the priests, the case was covered up by the Vatican. A speech was delivered by Pope Benedict XVI at the Vatican but the three men from America sued it and said the catholic priests abused them.
According to the ruling that was obtained by the associated press, the judge of the District Court in the United States rejected the argument of the victims saying that the Holy See is an international religious organization where a foreign state is subject to provisions in the Foreign Sovereign Act of Immunities. This ruling is important because religious activities of the Holy Sees are irrelevant to immunity protections that it enjoys for being a foreign state. This could only have implications for cases where the Holy See is a defendant in a scandal of clerical sexual abuse. (Kelly, 2005 pp15-18)
Labor law and local employment have diplomatic immunity when employing staff from the host country and have precipitated abuse. When we have a diplomat employer, employees face legal limbo where neither the host country laws nor laws of the diplomat’s country are enforceable. Conflict of interest arises because diplomats are the chief representative of the laws of their country and can not be forced to be obedient to local laws so that diplomat employer who is abusive acts with virtual impunity.
The laws about minimum wages have been ignored, a maximum number of working hours, holidays, and vacation. The worst abuse has made employees be imprisoned in their homes and deprived them of the wages they used to earn and they could not have access to the outside world.
Many diplomats do not pay tariffs and import duties for the items purchased for personal use. In some countries, diplomatic agents are the ones who profit personally when they resell these tax-free goods. The state that is receiving may make a choice to put restrictions on what may be referred to as personal use, for example, a certain cigarette quantity to be consumed every day. When such restrictions are enacted, they can be generous and fair to everyone. Many people do not pay fees that are imposed by the government because they try to avoid paying taxes. The nature of fees charged may lead to disputes but the receiving state should not discriminate between states as to who is supposed to pay tax and who should not pay. (Thanki, 2006 pp34-37)
References
Barker C. (1996): the abuse of diplomatic privileges and immunities: Dartmouth, pp. 13-17.
Ashman C. (1986): The abuse of diplomatic immunity: Hardback, pp. 24-28.
Van R. (2007): The immunities of states and their officials: Oxford University Press, pp. 14-18.
Fox H. (2004): The law of state Immunity: Oxford University Press, pp. 34-39.
Dickinson A. (2004): State Immunity; Selected Materials and Commentary: Oxford University Press, pp. 11-15.
Kelly M. (2005): Defeat of the Sovereign Immunity Defense: Peter Lang, pp. 15-18.
Thanki B. (2006): The Law of Privilege: Oxford University Press, pp. 34-37.