International law, Sixth edition
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International Law MALCOLM N. SHAW
Law Enforcement Officers With Regard to Personal Rights and Immunities
of Foreign Diplomatic and Consular Personnel 418 the point is made that waiver of immunity does not ‘belong’ to the individual concerned, but is for the benefit of the sending state. While waiver of immunity in the face of criminal charges is not common, ‘it is routinely sought and occasionally granted’. However, Zambia speedily waived the immunity of an official at its London embassy suspected of drugs offences in 1985. 419 In Fayed v. Al-Tajir, 420 the Court of Appeal referred to an apparent waiver of immunity by an ambassador made in pleadings by way of de- fence. Kerr LJ correctly noted that both under international and English law, immunity was the right of the sending state and that therefore ‘only the sovereign can waive the immunity of its diplomatic representatives. They cannot do so themselves.’ 421 It was also pointed out that the de- fendant’s defence filed in the proceedings brought against him was not an appropriate vehicle for waiver of immunity by a state. 422 In A Com- pany v. Republic of X, 423 Saville J noted that whether or not there was a 414 See Denza, Diplomatic Law, pp. 330 ff. 415 See e.g. Public Prosecutor v. Orhan Olmez 87 ILR, p. 212. 416 See e.g. High Commissioner for India v. Ghosh [1960] 1 QB 134; 28 ILR, p. 150. 417 See McClanahan, Diplomatic Immunity, p. 137, citing in addition an incident where the husband of an official of the US Embassy in London was suspected of gross indecency with a minor, where immunity was not waived, but the person concerned was returned to the US. But see Denza, Diplomatic Law, pp. 345 ff., noting the examples of waivers of immunity. 418 Reproduced in 27 ILM, 1988, pp. 1617, 1633. 419 McClanahan, Diplomatic Immunity, pp. 156–7. 420 [1987] 2 All ER 396. 421 Ibid., p. 411. 422 Ibid., pp. 408 (Mustill LJ) and 411–12 (Kerr LJ). 423 [1990] 2 LL. R 520, 524; 87 ILR, pp. 412, 416, citing Kahan v. Pakistan Federation [1951] 2 KB 1003; 18 ILR, p. 210. 772 i n t e r nat i o na l l aw power to waive article 22 immunities (and he was unconvinced that there existed such a power), no mere inter partes agreement could bind the state to such a waiver, but only an undertaking or consent given to the Court itself at the time when the Court is asked to exercise jurisdiction over or in respect of the subject matter of the immunities. In view of the principle that immunities adhere to the state and not the individual con- cerned, such waiver must be express and performed clearly by the state as such. Consular privileges and immunities: the Vienna Convention on Consular Relations, 1963 424 Consuls represent their state in many administrative ways, for instance, by issuing visas and passports and generally promoting the commercial interests of their state. They have a particular role in assisting nationals in distress with regard to, for example, finding lawyers, visiting prisons and contacting local authorities, but they are unable to intervene in the judicial process or internal affairs of the receiving state or give legal advice or investigate a crime. 425 They are based not only in the capitals of receiving states, but also in the more important provincial cities. However, their political functions are few and they are accordingly not permitted the same degree of immunity from jurisdiction as diplomatic agents. 426 Consuls must possess a commission from the sending state and the authorisation (exequatur) of a receiving state. 427 They are entitled to the same exemption from taxes and customs duties as diplomats. Article 31 emphasises that consular premises are inviolable and may not be entered by the authorities of the receiving state without consent. Like diplomatic premises, they must be protected against intrusion or 424 See e.g. L. T. Lee, Consular Law and Practice, 2nd edn, Durham, 1991, and Lee, Vienna Download 7.77 Mb. Do'stlaringiz bilan baham: |
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