I was profoundly struck by a recent local court decision whereby the family court told a diplomat stationed in Malta that he cannot claim diplomatic immunity to defy a court order and prevent his divorced wife from seeing their sons. In other words, diplomatic immunity is no carte blanche. The court’s reasoning was correct in that a person who has approached the court as a petitioner should not be entitled to any diplomatic immunity. A foreign diplomat instituting judicial proceedings in the receiving state can be deemed to amount to what is considered as “a constructive waiver” of diplomatic immunity. However, there is considerable discussion as to whether a constructive waiver can also be considered as a valid waiver of diplomatic immunity. Fortunately, in that case, the wife was not deprived of her legitimate judicial remedy but there remain many unresolved problems of diplomatic immunity.

Can our courts, and, why not, even our government lawfully take the necessary steps to balance the scale of diplomatic immunity that is heavily skewed in favour of the diplomat? A number of foreign courts have encountered such problems previously and they have created a limited number of precedents on certain aspects of diplomatic immunity. For example, courts have unanimously upheld diplomatic immunity in criminal prosecution and civil litigation resulting from criminal behaviour. Rules of diplomatic immunity have remained unaltered since the time they were established. What, then, are the possible remedies for abuse of diplomatic immunity? Solutions to the dilemma of diplomatic abuses are as frequently discussed as the problem itself. Hence, one must look at the existing legal order covering diplomatic immunity, the Vienna Convention on Diplomatic Relations, to find the root of the problem.

The successful adoption of the Vienna Convention on Diplomatic Relations is hailed as the landmark of the highest significance in the codification of international law. Yet the scope of diplomatic protection is not free from issues and controversies. In recent times, unfortunately, there is a growing tendency among diplomats to abuse their diplomatic status to commit acts prohibited by law and still claim immunity from the legal process. The states parties also aggravate this situation by selectively interpreting the rules in their favour, ignoring the fact that reciprocity is the basis for the successful functioning of the diplomatic protection. One should seriously address the problem of abuse of immunities and privileges and its adverse implications on the balance between immunities and the duty to respect the local laws and regulations.

Diplomatic immunity was originally established to promote international relations by protecting diplomats from retaliation in times of international conflicts. However, there has been an increasing number of challenges to the object and purpose of the Vienna Convention, as diplomats, their families and consular officials have increasingly paid scant respect for laws and regulations of the receiving states and have frequently abused their immunities and privileges, necessitating the invocation of local jurisdiction by the receiving state. At the same time, it is equally true that at times receiving states have rejected claims of diplomatic immunity on flimsy grounds, including the assertion that such immunity is available only for “official acts”. Undoubtedly, the abuse of privileges and immunities by diplomats, as well as by the states that receive them, constitute one of the major challenges to the continued success of the Vienna Convention.

It may be noted that out of all the abuses of diplomatic immunity, abuses of criminal nature are the more outrageous. Especially when one gets away with murder. The system has long proved controversial – not least since PC Yvonne Fletcher was shot dead outside the Libyan Embassy in England in 1984 – and is once again under the spotlight thanks to this unusual battle fought in our courts by a divorced mother and the man working at the Spanish Embassy. Cases like these have led to calls for the whole system to be overhauled. The Vienna Convention made sense in the days of the Cold War – when embassy staff working in hostile nations were at risk of being framed or caught in honeytraps – but has passed its sell-by date. What it does is put diplomats above the law. It is a breach of the rule of law. I think the Vienna Convention needs redrafting to limit diplomatic immunity. I do not think diplomatic immunity should extend to any civil case. It should only extend to criminal cases in limited circumstances.

Furthermore, the definition of "diplomat" is too wide – encompassing not just ambassadors and staff representing their nation in overseas embassies, but also at specialised agencies of the United Nations and other international bodies. Another possible area of serious diplomatic abuse can be discerned in the fact that there are a number of countries around the world where you can effectively buy citizenship whereby one can get a diplomatic passport to benefit from diplomatic immunity. Abuses of diplomatic immunity are unfortunate and they should never be a price worth paying to promote peaceful relations between states.

The international community, through a forum such as the United Nations, must re-evaluate the ancient principle of diplomatic immunity. The United Nations needs to establish new guiding principles that could preserve the basic concept of diplomatic immunity while defining reasonable limits as to who is entitled to immunity. The participants in this international debate must consist not only of international legal scholars and those who conduct diplomacy, but also the victims of diplomatic crime. Immunity must never mean absolute impunity.

Dr Mark Said is an advocate