Department of International Relations and Cooperation (DIRCO)

Department of International Relations and Cooperation (DIRCO) DIPLOMATIC IMMUNITIES AND PRIVILEGES

DIPLOMATICRELATIONSOFFICIALREPRESENTATION • The Vienna Convention on Diplomatic Relations (VCDR), 1961 and the Vienna Convention on Consular Relations (VCCR), 1963 are incorporated in the South African Diplomatic Immunities and Privileges Act, No 37 of 2001 (amended No 35 of 2008) as Schedule 1 and Schedule 2 respectively thus making it domestic law • The Act is commonly referred to as the DIPA

DIPLOMATICRELATIONSOFFICIALREPRESENTATION (cont) • The Convention on the Privileges and Immunities of the UN, 1946 applies to the UN and its officials • South Africa applies Equal Treatment to all States in terms of Article 47 (1) of the VCDR and not Reciprocity in terms of Article 47 (2) This means that all Foreign Missions enjoy the same immunities and privileges in South Africa

DIPLOMATIC REPRESENTATION • There are 330 foreign missions in South Africa consisting of diplomatic missions, consular missions, honorary consular missions, international organizations and 1 liaison office • South Africa has the second largest Diplomatic Corps in South Africa after Washington which totals over ten thousand diplomats and their families which are regularized by State Protocol in DIRCO

IMPLEMENTATION OF THE DIPA Flowing out of the Diplomatic Immunities and Privileges Act, No 37/2001 (amended) is the Policy on the Management of Diplomatic Immunities and Privileges which determines the operationalization of the DIPA In this regard State Protocol confers and manages immunities and privileges in South Africa of accredited diplomats and is the South African authority on: • Diplomatic identity documents • Substitution of Temporary Residence Visas (TRV’S) • Diplomatic properties

IMPLEMENTATION OF THE DIPA (cont) • Diplomatic motor vehicles • Diplomatic passports • Foreign and South African Diplomatic and Consular Appointments • South African diplomatic passports • Foreign visas for SA diplomatic and official passport holders

IMPLEMENTATION OF THE DIPA (cont) Liaison function: • with SAPS on diplomatic security • with the public on minor immunity disputes • with Chief State Law Adviser • International Law on major disputes with the CCMA on labour disputes involving Locally Recruited Personnel (LRP)

IMMUNITIES vs. PRIVILEGES • Immunity: Confers a procedural protection from the enforcement processes in the receiving State • Privilege: Some substantive exemption from the laws and regulations of the receiving State

IMMUNITIESAND PRIVILEGESDIFFERENTIATION IMMUNITIES PRIVILEGES & EXEMPTIONS INVIOLABILITY IMMUNITY FROM JURISDICTION Property Inviolability • Inviolability of residence, vehicles personal property and documents Personal Inviolability • Inviolability from arrest or detention • Right to be treated with courtesy and respect Diplomatic Agent • Full immunity civil and criminal • Int Organisation Head & Deputy & P5 Consular Agent Admin/Tech • Functional immunity • Int Organisation Officials

DIPLOMATIC IMMUNITY What does it mean? • Immunity from jurisdiction in criminal cases • Immunity from jurisdiction in civil and administrative cases, except matters involving • Private immovable property • Succession: executor/heir in private capacity • Any professional / commercial activity outside diplomatic function

DIPLOMATIC INVIOLABILITY What does it mean? • Inviolability is the term used to express the rule that no agent of the receiving state or its citizens may interfere with anyone entitled to immunities and privileges

DIPLOMATIC INVIOLABILITY What does it imply? • Inviolability of diplomatic premises • Inviolability of diplomatic property • Inviolability of the diplomatic bag / pouch • Inviolability of the person of a diplomat • Inviolability of personal effects of the diplomat

DIPLOMATIC INVIOLABILITY DIPLOMATIC BAG / POUCH • Vienna Convention on Diplomatic Relations: Art 27 • The diplomatic bag shall not be opened or detained • It shall bear visible external marks (and seal in • practice) • Contents must be for official use of the mission • RSA Practice: • Do not X-ray diplomatic bags: protect integrity • Sniffer dogs do not intrude on integrity of contents • Report suspect bags to DIRCO

DIPLOMATIC INVIOLABILITYDIPLOMATIC BAGGAGE Vienna Convention on Diplomatic Relations: Art 36 • The personal baggage of a diplomat shall be exempt from inspection; or • Inspection of suspect baggage with irregular / illegal content shall be conducted in the presence of the diplomat or his / her appointed agent; e.g. # Articles prohibited by law # Articles violating quarantine regulations

DIPLOMATIC INVIOLABILITY However since the VCDR of 1961 there have been a number of security incidents which have necessitated a change in this exemption It should be noted that all Heads of State enjoy full diplomatic immunities and are not searched in terms of international law. This does not apply to the Deputy President. Ministers of Foreign Affairs, to a lesser extent also enjoy immunities. All other Ministers and persons are subject to search and scanning of their luggage

DIPLOMATIC PRIVILEGES These are contained in the Policy on the Management of Immunities and Privileges, for example, a single diplomat gets one car duty free whilst a married diplomat (or with a life partner) get two cars duty free Other examples are diplomatic number plates, Fuel Levy Rebate, certain VAT Refunds, payment of rates and taxes for foreign owned properties, exemption from personal and public service and exemption from social security provisions

PUBLIC ACCOUNTABILITY In terms of the VCDR, Article 41, all diplomats must respect the laws and regulations of the receiving State. Below are some of these, e.g. a diplomatic may not speed and must pay any fines issued • Diplomatic Immunities & Privileges Act • Vienna Conventions on Diplomatic and Consular Relations • Conventions on the Immunities and -Privileges of the UN • Multilateral treaties between SAG and International Organisations • Bilateral agreements between SAG and Foreign Governments

PUBLIC ACCOUNTABILITY (cont) • Foreign States Immunities Act • Immigration Act • Road Traffic Act • Value Added Tax Act • Customs and Excise Act • Firearms Act • SA Citizenship Act • SA Passports and Travel Documents Act • Labour Relations Act

DIPLOMATIC SECURITY • VCDR: Receiving State has a special duty to provide security to the diplomatic community i.e. diplomatic missions, consular posts, accredited international organisations; foreign representatives and accredited members of family • SAPS: Diplomatic Policing Unit (DPU) • DPU nodal point for diplomatic security • Conducts regular patrols at missions and diplomatic residences

DIPLOMATIC SECURITY (cont) • Attends to criminal cases against diplomats • Provides security to missions for diplomatic functions • Assesses security requirements of diplomatic missions • Advice to diplomatic missions on security • Conducts security threats analysis on missions for • static policing

DIPLOMATIC CATEGORIES • Diplomatic Immunity is immunity that is at all times • Functional Immunity is immunity only in the exercise of official duties A diplomatic passport does not translate to diplomatic Immunities and Privileges, immunities only apply to those who are accredited to the relevant receiving State

DIPLOMATIC CHALLENGES • Challenges being faced are abuses of diplomatic immunities and privileges by accredited diplomats and family members who misuse their immunities, for example, claiming immunities when they refuse to pay rent, or for services however they are compelled to adhere in terms of the VCDR • Other challenges are the abuse of privileges when diplomats purchase items duty free and resell the items at a profit. This is a transgression of the DIPA.

DIPLOMATIC CHALLENGES (cont) In terms of Section 11 of the DIPA, the rates and taxes of foreign owned properties are paid. This is a large financial responsibility. DIRCO has done a reciprocity survey and will recommend changes thus reducing the budget in this regard.

ABUSE OF STATUS BY A DIPLOMATREMEDIES AVAILABLE TO THE RECEIVING STATE Diplomats bound to respect laws of receiving State (Art 41)Request an official apology by sending State (Note Verbale)Request sending State to waive immunity (Sec 8) Request sending State to recall offending diplomatDe-register offending diplomat from DFA accreditationand request immediate departure Declare offending diplomat persona non grata

DISPUTES BETWEEN STATESREMEDIES AVAILABLE TO STATES Breach of International Law: May approach International Court of JusticeRequest an official apology or correction of a wrong The sending State may break diplomatic relations

Thank you

Department of International Relations and Cooperation (DIRCO)