WHY CAN D IPLOMATS PARK EVERYWHERE? KAI BRUNS AMERICAN U NI V ERS ITY IN THE EMIRATES PAPER P RESENTAT ION @ WIS C 201 4 FR ANKF URT
Nov 28, 2014
WHY
CAN DIP
LOMAT
S
PARK E
VERYWHERE?
KAI BRUNS
AMERICAN U
NIVERSIT
Y IN
THE
EMIRAT
ES
P AP
ER
PR
ES
EN
T AT
I ON
@ W
I SC
20
14
FR
AN
KF U
RT
BUS LANE : EMBASSY CAR PARK 2.O
Diplomatic car parked in bus lane in London
CD Red on White: London 1940s CD Black on White: Berlin 2014
DIPLOMATIC CARS IN TIME
DIPLOMATIC LICENSE PLATES IN GERMANY
Diplomat
Embassy staff
United States of America
Hierarchy
Source: http://www.kfz-auskunft.de/autokennzeichen/diplomatenkennzeichen.html
INTRODUCTION
Motivation
• Explore the codification process of Vienna Convention on Diplomatic Relations (VCDR)
• Understand better the link between diplomatic theory & practice
Questions
• What was the role of theory in the codificaton of diplomatic privileges and immunities?
• If theory was important to the codification, which theory is taken as basis?
• What does the VCDR say about the protection of diplomatic cars?
ASSUMPTIONS
1. Modern diplomatic privileges and immunities are based on the functional necessity theory
2. Diplomatic Practice would take preference over legal theory
3. Given the practical problems, diplomatic speeding/parking was a (hot) topic discussed at the 1961 Vienna Conference
PAPER STRUCTURE
1. Theories of Diplomatic Privileges and Immunities
2. Role of Theory in the Codification of the 1961 Vienna Convention on Diplomatic Relations
3. Absolute Inviolability of Mission Premises and the Consequences for Diplomatic Means of Transport
4. Conclusion
REFLECTING ON THEORIES OF DIPLOMATIC PRIVILEGES AND IMMUNITIES
3 Legal Doctrines:
1. Theory of exterritoriality
2. Representative character theory
3. Functional necessity
Home!
ROLE OF THEORY IN CODIFICATION OF VCDRTheory took a backseat
• Lesson learnt from codification attempts under the League of Nations (prescriptive approach)
• 1930 The Hague Codification Conference
• Codification to serve pragmatic needs and to reflect current diplomatic practice
• Commentary of 1957 ILC draft Articles: Functional necessity theory guided where diplomatic practice unclear
FUNCTIONAL NECESSITY AND VCDR
VCDR outlines functions of diplomatic mission
• Article 3: represent, protect interests, negotiate, report
Preamble
[…] Realizing that the purpose of such privileges and
immunities is not to benefit individuals but to ensure
the efficient performance of the functions of
diplomatic missions as representing States,[…]
WHY IS DIPLOMATIC PARKING AN ISSUE?
1913: 39 Diplomatic Missions2013: 163 Diplomatic Missions
1913: 543 Diplomatic Corps2013: 25,000 Diplomatic Corps
Source: Hansard Files & 2013 London Diplomatic List
DIPLOMATIC MEANS OF TRANSPORT
VCDR Article 22: Absolute inviolability of mission premises was a hot topic
Praragraph 3 The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
• Negotiation history reveals that „means of diplomatic transport“ was originally not included
• Spanish last minute oral proposal in Plenary session at the end of the conference with little discussion
• Time pressure; tiredness of delgates; not to reopen discussion on article
CONCLUSION
• The role of theory was secondary to practical issues
• The functional necessity theory was taken as a guide and its influence can be traced in VCDR
• A derivative form of reprensentative character theory is included (Article 3, Preamble)
• Diplomatic means of transport were originally not included in the ILC draft article
• Spanish last minute oral proposal which was not discussed thoroughly due to time pressure, phyisical exhaustion and not to reopen debate
Thank you.
Kai BrunsAmerican University in the [email protected]