Possible remedies to prevent the misuse of diplomatic immunity

Since 1945, diplomatic immunity has altered. There are many factors which inhibit immunity. Firstly, consistent Cold War retaliation existed. Second, national security in the nuclear age was prioritized. The intricacy of international politics and mission expansion influenced a change. Also, the abuse of diplomatic and non-diplomatic immunity necessitated modification. In the 1960s, when hundreds of diplomats were sued, diplomatic immunity was called into doubt. Diplomatic abuses should force a reform of the Vienna Convention. Functional needs explained immunity modifications in the 1960s. Increasing and expanding immunity categories contributed to the improvement of the theory. However, there is no abuse remedy that is universally acceptable and enforceable. Should functional necessity theory replace immunity’s cloak? The pacta sunt serva concept of the noncontroversial law of treaties could be utilized to obtain multilateral agreement on the nature, cause, and effect of the functional necessity theory. A Permanent International Diplomatic Criminal Court with mandatory jurisdiction over accused diplomats and its own punishment system has been under discussion since the late 1980s. It never occurred, yet it may have resolved the diplomat disagreement between the victim and the accused.


Introduction
Nowadays it is essential that diplomatic immunity be changed to properly integrate the Functional Necessity Theory and to give potential plaintiffs under this theoryAdditional Submission assurances.The creation of a new protocol to the Vienna Convention that would provide governments' permission to operate in this way would help to achieve this goal, putting into effect bilateral agreements to lower theirimmunitytoausablelevel.Atsomepointinthefuture,itmight Lama Allan Abusamra s.2z17 become a benchmark in international law.Also, this approach is respected.States have the authority to determine how their diplomatic staffwillbehandledinotherstatesthankstotheexerciseofstatesovereignty.Additionally, it resolves the reciprocity issue that develops incountriesthatputsuchaccordsintoeffect,obtainingthesamestandard of treatment for their diplomats while they are abroad.Such an arrangementwouldnotbedeemedtobeincontraventionoftheother protectionsandconceptsoftheViennaConvention 1 .
A permanent international diplomatic criminal court with mandatoryjurisdictionoverambassadorssuspectedofcommittingcrimeshas been proposed by one commentator.The court would become an inquisitorial body under this idea, serving as both the prosecution and thedefense.Thiscourtwouldhavetheauthoritytolevyfinesand,in dire circumstances, place ambassadors in its own prisons.This idea hastwousefuladvantages.First,localprocedureswouldnothavethe potential to unfairly disadvantage the court's operations.Second, usingacourtoutsideoftheframeworkofbilateralrelationspreventsthe breaking of diplomatic ties under dire circumstances.Many advantagesofthisapproachcallforfurtherstudy 2 .

Introducing new provisions into the Vienna Convention on Diplomatic Relations
The aim of possibly amending the Vienna Convention was to reduce the scope of diplomatic immunity for criminal conduct, which poses a problem in receiving States.The areas of amendment can be divided into three categories, namely the criminal acts of diplomats, theabuseofthediplomaticbag,andtheuseofthemission 3 .
The following suggestions focus on restricting the extent of diplomatic immunity 4 .There must be a universal agreement on a list of Possible remedies to prevent the misuse of diplomatic immunity s.3z17 crimesforwhichdiplomaticimmunityiswaivedforallgovernments.Thelistmightbetitled"universalcrimeslist".Theprohibitedactivity should encompass any acts of violence against others, such as murder,assault,battery,anddrivingundertheinfluence.Self-defenseacts would beexcludedfromthislist.In addition,property crimeswould be added to the list of global crimes.Diplomats should preserve immunity from parking and traffic offenses, as the receiving state may easily harass ambassadors by enforcing motor vehicle restrictions unduly strictly.The subsequent step would include the adjudication of diplomats' misconduct.Signatory states must make it clear that if a diplomat commits a crime on the universal crime list, it is the receiving state's responsibility to judge the case according to local law.Onceambassadorsareawarethatthereceivingstatehastheabilityto pursuethemcriminallyfortheirillegalconduct,itisextremelylikely thatcriminalactivitywilldecrease5 .
This sort of change might result in the receiving state harassing diplomaticvisitorswithinitsboundaries.Toacquireinfluenceoverthe sending State, fabricated allegations against diplomats might be used to arrest and prosecute diplomats or remove unwelcome representa-tivesenteringthereceivingState'sborders 6 .Thisideawould,ofcourse,behamperedbythefactthatthe"scope ofobligations"mightsometimesbeinterpretedinanoverlywidemanner; therefore, strict adherence to the rules may require unanimous agreementfortheconcepttobeentirelysuccessful.Yet,evenifitwere notproperlyimplemented,themodificationwouldgoalongwaytoward reducing outrageous abuses of immunity, such as Manuel Ayree's.On the other hand, one may argue that restricting diplomatic immunitywouldallowgovernmentstoharassdiplomatswithintheir boundaries.Unhappy with the sending nation, the host government maycreatechargesinordertoarrestandprosecutediplomatsforthe sakeofgainingleverageinnegotiationswiththesendingstate 7 .Eventhemostradicalregimesviewthemaintenanceofembassies asacrucialindicatorofsovereignty,thereforeitappearsdoubtfulthat Lama Allan Abusamra s.4z17 reciprocitywouldleadtoanincreaseinarrests,prosecutions,orexpulsions that would render the upkeep of embassies untenable.All governmentshaveaninterestininteractionsthatpreventtheescalationof retaliationfortheretaliation.
Asadeterrentagainstgovernmentmaltreatmentofdiplomatsand a replacement for immunity, reciprocity appears to offer great potential.It has the benefit of being self-enforcing: nations are hesitant to actagainstforeignambassadorssincetheirownnationalsareequally vulnerableabroad.Itisnotanidealsolution,however,becausenotall governmentspossessthesamecountermeasurecapabilities8 .
Article 27 of the Vienna Convention must also be revised to minimize diplomatic bag misuse.The diplomatic bag now allows diplomats to carry narcotics, firearms, and even persons.Secondly, the Agreement should be revised to standardize the size of diplomatic bags.This standard size should let ambassadors transport secret, official papers without intervention from the host country.In addition, particular care should be allocated to embassy equipment and other goodsthatfallwithinthiscategory 9 ,andspecialarrangementsshould beimplementedforproductinspection.Thehostnationmustalsobe authorized to use electronic scanning, remote equipment inspection, anddogs.Third,ifthereceivingstatehasstrongsuspicionsaboutthe contents of the bag, it should be permitted to request a search of the baginthepresenceofanofficialrepresentativeofthesendingstate;if thediplomatrefusestoallowthesearch,thereceivingstateshouldbe permitted to demand the return of the diplomatic bag to the sending state.Ifadiplomatisapprehendedforabusingthediplomaticbag,the receiving state should be able to punish him or her to the full extent of the law.These proposed amendments to Article 27 of the Vienna Convention should provide the necessary enforcement mechanism to prohibittheabuseofdiplomaticbags 10 .
Article 22 of the Vienna Convention stipulates that "the premises of the mission shall be inviolable.The agents of the receiving state may not enter them, except with the consent of the head of the mission".Moreover, the mission's premises are exempt from requisition, attachment,andexecution.Althoughtheoriginaldraftersofthe Vienna Possible remedies to prevent the misuse of diplomatic immunity s.5z17 Conventionbelievedthatinviolabilitymustbetotaltopreventabuses by the receiving state, it appears that the growing use of diplomatic premisesforterrorismnecessitatesamendingthisarticle 11 .
Exemption from prosecution for espionage is an example of the futility of domestic punishments since any sentence is rendered ineffectivebyprivilegesandimmunities.Therehasbeenamajorbreachof domestic law, but the only recourse is the one of the protocols.Such deterrence is unsuccessful, because it temporarily neutralizes the espionageoperation,butdoeslittletoremovetheproblem'srootcause, thus allowing espionage to persist.Thus, if feasible, any reevaluation of the receiving state's domestic system must restrict the diplomat's authoritytocommitespionage.Suchanapproachwouldneedamodification in current legislation to restrict protection to diplomatic and consular community members who had committed espionage while abusingtheirprivilegesandimmunities.Theamendmentshouldstate unequivocallythatspyingisnotalegitimatediplomaticactivity 12 .
Alistair Brett has suggested amending Articles 22 and 27 to give theInternationalCourtofJustice(ICJ)theauthoritytosuspendanon-complyingcountryfromtheUnitedNationsandtoforcegovernments to post monetary bonds as security for good diplomatic behavior 13 .The difficulty emerges during implementation.Although the Vienna Conventiondoesnotprovideamechanismforamendment,thereisno official, unified method for requesting change.Yet, the U.N. General Assemblymightperhapscontemplatechangingthetreaty,butthelogistics required in renegotiating or amending the Vienna Convention wouldverycertainlybeinsurmountable 14 .
ThereisnomechanismforamendingtheViennaConvention.However,Article39ofViennaConventionontheLawofTreaties(general rule regarding the amendment of treaties) states that "A treaty may be amended by agreement between the parties.The rules laid down inPartIIapplytosuchanagreementexceptinsofarasthetreatymay otherwiseprovide'' 15 .

s.6z17
In relation to the embassy,Article 22 needs to be changed to read asfollows:Forthereceivingstatetohavetherighttodemandasearch of the diplomatic grounds, the suspected offense involving embassy workers must first be included on the "universal offences list".Second, the receiving state is required to provide "probable cause" to support the shady behavior at the embassy.If these conditions are satisfied,authoritiesfromthereceivingstate,alongwithchosenrepresentativesfromothersignatorycountries,mustbepermittedtosearch theembassy 16 .TheViennaConventionmaybeexceedinglydifficultto alter logistically, but if the interests of the various States are aligned, it should not be impossible, especially given the superpowers' usual unwillingnesstoagreeonanyViennaConventionamendments17 .

Implementation of the theory of functional necessity
Diplomatic immunity is not based exclusively on the requirement ofafunction.Rather,itdependsonanumberofsupplementarytheoretical premises, including the representation of states, the sovereign equality of states, and the key connected idea of reciprocity, in additiontofunctionalneeds 18 .
Initspreamble,theViennaConventionexpressesadesiretoorganizediplomaticimmunityusingthefunctionalnecessityprinciple.The Vienna Convention demonstrates this objective by giving varying degreesofimmunitytofourcategoriesofembassypersonnel.However, theViennaConventiondepartsdramaticallyfromfunctionalnecessity by defining diplomatic immunity in terms of individuals rather than conduct, as functional necessity mandates.Consequently, many actions,bothviolentandnonviolent,thatareincidentaltothediplomatic processareinsulatedfromjurisdiction 19 .
The Vienna Convention exempts diplomatic personnel and their families from civil liability for torts occurring in the "course of their Possible remedies to prevent the misuse of diplomatic immunity s.7z17 officialduties",withtheexceptionof"privateservants".Furthermore, suitsbasedoncontractcannotbebroughtagainstthoseinthetopthree classificationsifthecontractualrelationshiparoseinthecourseofofficial duties.Immunity from criminal prosecution is allocated equally based on a person's classification.However, this immunity is overbroad, because it is exceedingly improbable that all torts, contracts, and criminal activities for which judicial process may arise are noncollateraltothediplomaticprocess,particularlyinthecaseoffamilies ofdiplomaticworkers 20 .
The preamble to the Vienna Convention declares that diplomatic privileges and immunities are not intended to benefit individuals, but rather to facilitate the efficient execution of diplomatic missions asstaterepresentatives.Adoptingfunctionalrequirementastheguiding concept for extending immunity yields a number of noteworthy outcomes.First,itenablesthemission'spremises,property,andcommunicationstobebetterprotected.Second,afunctionalapproachmay decreasethefrequencywithwhichimmunitycanbeinvoked.Particularlyforjuniormembersofthemission'spersonnel,immunityisonly attainableforconductrelatedtoofficialdutiesandnotforactionsthat are purely private or personal.The concept of diplomatic immunity becomes more attractive to the general public if immunity is limited tothosesituationswhenitisrequiredtoperformofficialobligations 21 .Reforming diplomatic immunity to fully embrace the principle of functionalneedandtogivefurtherprotectionstofutureclaimantsunderthisapproachisnecessary.Theseprotectionsincludethemethods ofsettlementandwaiveroutlinedinPartIII.BoftheUNConvention.This aim might be attained by creating an extra protocol to the Vienna Convention that authorizes governments to enter into bilateral accords limiting diplomats' immunity to functional immunity.By allowing nations to opt into such an arrangement, those who legitimately fear diplomatic persecution can continue to use the Vienna Convention's framework.However, this protocol presents an option fornationswillingtolimittotalimmunity.Eventually,ifsufficientnations execute such accords, the functional approach may mature into a norm of customary international law requiring all governments to accept functional immunity.In addition, this approach respects state sovereignty and permits governments to determine the treatment of their diplomatic employees.It also tackles the problem of reciprocity byassuringnationswhonegotiatesuchagreementsthattheirambassadorswouldgetthesametreatmentinthereceivingstate.Thisagreementwouldnot contradict theVienna Convention's other safeguards and concepts.The agreement would supersede the provisions of the Conventionpertainingtoabsoluteimmunity,whilepreservingthesectionsthatprovideadditionalrights 23 .

Suggestion for an International Permanent Diplomatic Criminal Court
International dispute resolution has gained an extraordinary role in international politics in recent years 24 , adopting a treaty to establish a permanent international criminal court in order to address one of the long-standing deficiencies in the international humanitarian law implementation system 25   tionalReviewoftheRedCross"1998,Vol.38,pp.57-74,57.Possible remedies to prevent the misuse of diplomatic immunity s.9z17 Criminal Court" would have been beneficial for adjudicating allegations brought about by the partial abolition of diplomatic immunity.The International Court of Justice (ICJ) was formed to settle disputes betweennations,notcriminalproceedings;hence,itissuperfluousfor theICJtoacceptthejurisdictionthatthisproposaloffers.Thefollowingparagraphdetailstheplannedcourt 26 .
ICJ decisions are more likely to be followed if there are effective ways to enforce them.On the other hand, international law in general and international adjudication in particular are often called weak because there are not many ways to enforce them 27 .The establishment of a Permanent International Diplomatic Criminal Court (Court) with mandatory jurisdiction over suspected criminal actions committed by individualambassadorsoffersapotentialsolutiontothisdeadlock.The organiclegislationoftheCourtwouldbeanamendmenttotheVienna Convention.Thespecificsofthemodificationshouldbethetopicofan internationalconventionconvenedunderthesupervisionoftheUnited Nations General Assembly, which also oversaw the meeting that pro-ducedtheViennaConvention.PrincipalbenefitoftheCourtisitsability totreatpersonsandstatesneutrally.MembersoftheCourtwouldconsistoflegalprofessionalsfromstatesthathaveratifiedtheamendment, chosen so as to prevent geographical or cultural prejudice.Although the employment of jurors may look impractical, many judges hearing a single case and the weight of evidence will help to the fair adjudication of disputes.In addition to mitigating any conflicts of interest, the plethora of members hearing any one case helps to prevent them.Memberswouldrecusethemselvesfromcasesinvolvingsuspectsofthe samenationality.BeforethestartofCourtoperations,rulesofdiscovery, procedure, and evidence would be formulated utilizing commonalities acrosspartystates.TheCourtwouldemployaninquisitorialformofop  InternationalandComparativeLawQuarterly"2007,Vol.56,  pp.49-68,60.  3J.I.Charney:The Impact on the International Legal System of the Growth of International Courts and Tribunals."NewYorkUniversityJournalofInternationalLaw"1999,Vol.31,pp.697-708.Possible remedies to prevent the misuse of diplomatic immunity s.11z17 fordiscretion,minimizingexplicitruleconflicts.Greaterconcernshave started to emerge in other areas, and these could get worse as more tribunals get involved in directly cognate matters and the number of foreign cases increases31 .The debate arises as to whether the expansionofinternationalcourtsendangerstheinternationallegalsystem's cohesion.Notonlymayacacophonyofopinionsoninternationallegal standards undermine the appearance that an international legal systemexists,butifanalogoussituationsarenotaddressedsimilarly,the entirenatureofanormativelegalsystemwillbelost.Ifthisoccurs,the validityofinternationallawasawholewillbecompromised32 .
Multipletribunalsaddressingthesamematterwithoutproperprocedures for overlapping jurisdiction is an apparent risk33 .The relationship between international courts and tribunals and national law and institutions, particularly national courts, is arguably the biggest challenge posed by the expansion of the authority and activity of international courts and tribunals.This problem has been extensively discussedelsewhereandisnotthesubjectofthisstudy;nevertheless, some of the writers bring attention to international law theories that may be completely applicable to these concerns34 .Experimentation andinquiry,whichcanleadtoadvancementsininternationallaw,are madepossiblebythepluralityofinternationalcourts.Theabsenceof a firmly hierarchical framework allows international tribunals to collaborativelyproposeideasthatmightbeintegratedintogeneralinternational law.It also makes it easier for the international community to evaluate these concepts.In the end, one would anticipate that the finestideaswillbewidelyembraced,thereforeaddingtointernational law.In certain instances, though, customized solutions for unusual conditionsmaybepreferable 35 .InthehistoryoftheICJ,thereareseveralexamplesofsuchfail.Non-compliancemayhurttheCourtintwo Lama Allan Abusamra s.12z17 ways: on the one hand, the decision it has rendered will be ineffective,and,ontheotherhand,frequentnoncompliancemaydamagethe reputationoftheCourtandthusweakenitsinstitutionalposition 36 .

The UN Convention on State Jurisdictional Immunities and Property
The UN Convention was adopted by the UNGA three years after Fogarty, which was a remarkable achievement.The Convention'sAr-ticle5presumesimmunityfromforeigncourts.Embassyandconsular employment contracts are unclear under Article 11.Article 11(1) exemptsimmunity"inaprocedurewhichrelatestoacontractofemployment" for forum labor, however paragraph sometimes restores State immunity (2).Immunity applies when the employee is a diplomatic agentorconsularofficer(subparagraphs(2)(b)Iand(ii)),8when"the subjectoftheproceedingistherecruitment,renewalofemploymentor reinstatementofanindividual"(subparagraph(2)(c)),orwhentheem-ployeeisanationaloftheemployerStateatthetimetheproceedingis instituted,unlessthepersonisapermanentresidentoftheforumState (subparagraph(2)(e)).Undisputedexceptionsprecede.Subparagraphs (d)(d)"Recruitedtoperformspecificobligationsintheexerciseofgovernmental authority" personnel are immune.Article 1 l(2)(d) grants immunity if "the subject of the proceeding is the dismissal or terminationofemploymentofanindividualandasdeterminedbythe head of State, the head of Government or the Minister for Foreign Affairs of the employer state, such a proceeding would interfere with the security interests of that state".Both of these restrictions havetheabilitytoexcludeawidevarietyofemployeeclaimsatfirst appearance.
The ILC's Special Rapporteur construed subparagraph (2) to "exclude administrative and technical staff of a diplomatic mission from the scope of [the broad exception to immunity in] paragraph 1(a)".Gerard Hafner's ILC Working Group suggested a considerable im-munityreductiontoArticle1l(2)(a)ofthe ILCDraftArticlesin1999. Hence,immunityexistsonlywhere"theemployeehasbeenrecruited to undertake defined obligations in the exercise of governmental authority".Hafner,whochairedtheUNWorkingGroupthatconcluded theAgreement,wantedfewertroops.Herefusedtochangethefollowing:"administrativeandtechnicalstaffshouldbeexpresslyreferredto inArticle1l(2)(a)anddeniedrightstosue"despiteILCmembers'demands.Hafnerclaimedthatadministrativeworkers,whosecourtpractice was still unestablished, should not be grouped in one category.So, subparagraph (2)(a) should be used to evaluate if each employee exercisedgovernmentalauthorityandimmunityindependently.Consider employee tasks."Some delegations considered the Chairman's definition of subparagraph (a) was too restrictive and should include administrative and technical staff", Hafner wrote after the ILC forwarded DraftArticles to the UN GeneralAssembly Sixth Committee WorkingGroup.HafnerlateradmittedthatArticle(2)(a)didnotapply to all diplomatic and consular staff.In 2010, he noted the ILC's draft "was potentially substantially bigger" in including mission crew, but itwaslimited 38 39 .Hafner'scomment,whichwasmadein2010suggeststhatitwas intended to be used sparingly with the risk of "misuse", while being limited by the requirement that "the existence of such security interests...bedeterminedbyasuperiorstateorgan".
ItremainstobeseenwhetherHafner'sconfidenceinitslimiteduse is justified.States with absolute views of State immunity in employment cases could be tempted to rely on their wide discretion under theprovisiontoobstructemployees'claimsandtherewouldbelittle, ifany,scopeforclaimantstoobtainjudicialreviewofsuchdecisions.Fortunately, in a recent Indian decision, the court was careful not to findimmunityunderthisprovisionwheretherehadbeennodeterminationbytherelevantforeigngovernmentauthoritythattheproposed actionforwrongfuldismissalwouldinterferewiththeState'ssecurity interests 40 .

Conclusion
The many approaches that have been proposed are not foolproof solutions to the problem of abuse, but they might assist in lowering theincidenceofabuse.Theremovalofdiplomaticimmunitydoesnot 39 Ibid. 40Ibid.
Possible remedies to prevent the misuse of diplomatic immunity s.15z17 compromise the functioning of the diplomatic process, nor does it changethedefinitionoftheideaoffunctionalnecessity.
The employment of bilateral treaties is the recommended course ofaction,andcountriesoughttopursuethiscourseofactioninorder to figure out what the right levels of immunity should be between membersofdiplomaticpersonnelandthefamiliesofsuchmembers.In addition,thestateswouldbefreetomakewrittenagreementsthatare customizedtotheirspecificdiplomaticrequirements,andtheywould be expected to adhere to those accords.This would be a condition of thefreedomtocreatewrittenagreements.
The formation of a Permanent International Diplomatic Criminal Court has the potential to be an undertaking that is fruitful in the long run.However, it could have the same effect as the International CriminalCourtandtheInternationalCourtofJusticeinthesensethat thedecisionsandjudgmentsofthecourtswillnotbetakenseriously, and powerful states may choose to ignore them.This would be the case if it had the same effect as the International Criminal Court and the International Court of Justice.In addition to that, a change needs tobemadetotheViennaConvention,which,aswasindicatedpreviously,isadifficulttask.Thisisamust.
Diplomacy in the Modern World: A Reconsideration of the Bases for Diplomatic Immunity in the Era ofHigh-Tech Communications, supranote6. 22J.S.Parkhill: No.4,pp.783-827,athttps://www.jstor.org/stable/24761320(visitedJan.12,2023).the subparagraph may reestablish State immunity in many cases.National security and diplomatic/consular post-security are security interests.Hafner's 2010 comments do not help with this rule