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Diplomatic Immunities & Privileges Amendment Bill Presentation by Sandea de Wet

Learn about the reasons, objectives, and proposed amendments of the diplomatic immunities and privileges amendment bill as explained by Sandea de Wet, Principal State Law Adviser. The bill aims to align South Africa's legislation with international obligations.

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Diplomatic Immunities & Privileges Amendment Bill Presentation by Sandea de Wet

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  1. PRESENTATION ON THE DIPLOMATIC IMMUNITIES AND PRIVILEGES AMENDMENT BILL BY SANDEA DE WET PRINCIPAL STATE LAW ADVISER (IL) 29 AUGUST 2001

  2. REASONS FOR AMENDMENT BILL • PARLIAMENT APPROVED SOUTH AFRICA’S ACCESSION TO THE UNITED NATIONS CONVENTIONS ON PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS AND SPECIALIZED AGENCIES ON 26 AND 27 OF JUNE 2001 • THERE IS A LEGAL OBLIGATION TO INCORPORATE THESE PROVISIONS IN SOUTH AFRICAN LEGISLATION

  3. REASONS FOR AMENDMENT BILL • SOUTH AFRICA ACCEDED TO THE VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS AND ON CONSULAR RELATIONS IN 1989 WITHOUT ANY RESERVATIONS • A SELECTIVE INCORPORATION OF VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS AND ON CONSULAR RELATIONS WAS HOWEVER MADE IN THE ACT • LEGAL OBLIGATION TO INCORPORATE ALL PROVISIONS OF THE VIENNA CONVENTIONS IN SOUTH AFRICAN LEGISLATION

  4. REASONS FOR AMENDMENT BILL • APPLICATION OF IMMUNITIES AND PRIVILEGES TO INTERNATIONAL ORGANIZATIONS/ SPECIALIZED AGENCIES DONE WITHOUT PROPER LEGAL BASIS • APPLICATION OF IMMUNITIES AND PRIVILEGES TO INTERNATIONAL ORGANIZATIONS/ SPECIALIZED AGENCIES DONE ON AN AD HOC BASIS WITHOUT EQUALITY IN TREATMENT OF THE VARIOUS ORGANIZATIONS

  5. REASONS FOR AMENDMENT BILL • INCREASING NUMBER OF INTERNATIONAL MEETINGS AND CONFERENCES HOSTED BY SOUTH AFRICA • NO PROVISION IN THE PRESENT ACT FOR THE GRANTING OF PRIVILEGES AND IMMUNITIES FOR PURPOSES OF SUCH MEETINGS AND CONFERENCES • EXCESSIVE ADMINISTRATIVE BURDEN WHEN GRANTING PRIVILEGES AND IMMUNITIES FOR THE PURPOSES OF SUCH MEETINGS AND CONFERENCES

  6. REASONS FOR AMENDMENT BILL • ACT IS OUTDATED AS INTERNATIONAL RELATIONS GREW EXTENSIVELY SINCE 1989 WHEN ACT WAS PROMULGATED - • 110 DIPLOMATIC MISSIONS AND 56 CONSULAR OFFICES WERE ESTABLISHED • 18 OFFICES OF INTERNATIONAL ORGANIZATIONS/ SPECIALIZED AGENCIES WERE OPENED • HOSTING OF INTERNATIONAL CONFERENCE AND MEETINGS SUCH AS UNCTAD, NAM, WCAR, WSSD,ETC

  7. OBJECTIVES OF AMENDMENT BILL • BRING THE ACT IN LINE WITH SOUTH AFRICA’S INTERNATIONAL OBLIGATIONS BY - • INCORPORATING CONVENTIONS ON PRIVILEGES AND IMMUNITIES OF UN AND SPECIALIZED AGENCIES IN SOUTH AFRICAN LEGISLATION • INCORPORATING ALL THE PROVISIONS OF THE CONVENTIONS ON DIPLOMATIC AND CONSULAR RELATIONS IN SOUTH AFRICAN LEGISLATION

  8. OBJECTIVES OF AMENDMENT BILL • BRING THE ACT IN LINE WITH SOUTH AFRICA’S INTERNATIONAL OBLIGATIONS BY - • HARMONIZING AD HOC PRACTICES AND EQUALITY IN TREATMENT OF THE VARIOUS INTERNATIONAL ORGANIZATIONS • PROVIDING FOR THE GRANTING OF IMMUNITIES AND PRIVILEGES WITH REGARD TO INTERNATIONAL MEETINGS AND CONFERENCES

  9. OBJECTIVES OF AMENDMENT BILL • UPDATE THE ACT BY - • BRINGING EXISTING PROVISIONS IN LINE WITH PROVISIONS IN THE CONVENTIONS • DELETING DUPLICATIONS • CORRECTING CONTRADICTIONS • LESSEN THE ADMINISTRATIVE BURDEN

  10. OVERVIEW OF PROPOSED AMENDMENTS • ARTICLE 1 - DEFINITIONS • “MEMBER OF A FAMILY” • “ORGANIZATION” • “SPECIAL ENVOY OR REPRESENTATIVE” • “SPECIALIZED AGENCY” • “CONVENTIONS” • “ACT”

  11. DEFINITIONS • “MEMBER OF FAMILY” MEANS - • THE SPOUSE • UNMARRIED CHILD UNDER 21 • UNMARRIED CHILD BETWEEN AGES OF 21 AND 23 UNDERTAKING FULL TIME STUDIES • OTHER UNMARRIED CHILD OR FAMILY MEMBER OFFICIALLY RECOGNIZED BY SENDING STATE AND ISSUED WITHDIPLOMATIC /OFFICIAL PASSPORT

  12. DEFINITIONS • “ORGANIZATIONS” MEANS - • INTERGOVERNMENTAL ORGANIZATION OF WHICH TWO OR MORE STATES ARE MEMBERS AND WHICH THE MINISTER HAS RECOGNIZED FOR THE PURPOSES OF THE ACT

  13. DEFINITIONS • “SPECIAL ENVOY/REPRESENTATIVE” MEANS - • PERSON DULY AUTHORIZED BY SENDING STATE • UNDERTAKING A SPECIAL MISSION/TASK IN SOUTH AFRICA • USUALLY FOR A LIMITED PERIOD

  14. DEFINITIONS • “THIS ACT” INCLUDES- • THE VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS AND ON CONSULAR RELATIONS; AND • THE CONVENTIONS ON THE IMMUNITIES AND PRIVILEGES OF THE UNITED NATIONS AND SPECIALIZED AGENCIES

  15. SECTIONS 2, 3 AND 4 • CLEAR DISTINCTION BETWEEN GRANTING OF IMMUNITIES AND PRIVILEGES TO - • DIPLOMATIC MISSIONS AND CONSULAR POSTS • HEADS OF STATE AND SPECIAL ENVOYS • UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • INTERNATIONAL CONFERENCES AND MEETINGS

  16. SECTION 2 • IMMUNITIES AND PRIVILEGES OF DIPLOMATIC MISSIONS AND CONSULAR POSTS AND MEMBERS THEREOF • VIENNA CONVENTIONS SHALL HAVE THE FORCE AND EFFECT OF LAW IN SOUTH AFRICA • VIENNA CONVENTION ON DIPLOMATIC RELATIONS APPLY TO DIPLOMATIC MISSIONS • VIENNA CONVENTION ON CONSULAR RELATIONS APPLY TO CONSULAR POSTS

  17. SECTION 3 • IMMUNITIES AND PRIVILEGES OF HEADS OF STATE AND SPECIAL ENVOYS/ REPRESENTATIVES • IMMUNE FROM CRIMINAL AND CIVIL JURISDICTION OF COURTS • ENJOY SUCH IMMUNITIES AND PRIVILEGES • IN TERMS OF CUSTOMARY INTERNATIONAL LAW • ANY AGREEMENT, OR • AS THE MINISTER MAY CONFER UPON HIM/HER BY NOTICE IN THE GAZETTE

  18. SECTION 4 • IMMUNITIES AND PRIVILEGES OF UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • CONVENTION ON PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS SHALL APPLY TO THE UNITED NATIONS AND ITS OFFICIALS IN SOUTH AFRICA AND • SHALL HAVE THE FORCE AND EFFECT OF LAW IN SOUTH AFRICA

  19. SECTION 4 • IMMUNITIES AND PRIVILEGES OF UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • CONVENTION ON PRIVILEGES AND IMMUNITIES OF THE SPECIALIZED AGENCIES SHALL APPLY TO THE SPECIALIZED AGENCIES AND ITS OFFICIALS IN SOUTH AFRICA AND • SHALL HAVE THE FORCE AND EFFECT OF LAW IN SOUTH AFRICA

  20. SECTION 4 • IMMUNITIES AND PRIVILEGES OF UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • ORGANIZATIONS OTHER THAN UN OR SPECIALIZED AGENCIES RECOGNIZED BY THE MINISTER • ENJOY IMMUNITIES AND PRIVILEGES AS DETERMINED IN ANY AGREEMENT OR • IF IT IS NOT EXPEDIENT TO CONCLUDE AN AGREEMENT AS MAY BE DETERMINED BY THE MINISTER AND PUBLISHED BY NOTICE IN THE GAZETTE

  21. SECTION 4 • IMMUNITIES AND PRIVILEGES PERTAINING TO INTERNATIONAL CONFERENCES AND MEETINGS - • FOR DURATION OF CONFERENCE/ MEETINGS • MINISTER TO RECOGNIZE CONFERENCE/ MEETING • AS SPECIFIED IN THE UN CONVENTION AND THE SPECIALIZED AGENCIES CONVENTION, OR • PROVIDED FOR IN ANY AGREEMENT • CONFERRED BY THE MINISTER BY NOTICE IN THE GAZETTE

  22. SECTION 5 • ANY AGREEMENT CONFERRING IMMUNITIES AND PRIVILEGES SHALL BE PUBLISHED BY NOTICE IN THE GAZETTE • IF NOT EXPEDIENT TO CONCLUDE AN AGREEMENT THE MINISTER MAY CONFER IMMUNITIES AND PRIVILEGES AS MAY BE SPECIFIED IN A NOTICE IN THE GAZETTE

  23. REMAINING SECTIONS • PURPOSE OF AMENDMENTS REFLECTED IN REMAINING SECTIONS- • TO BRING THE SECTIONS IN LINE WITH PROVISIONS OF THE CONVENTIONS • TO DELETE ANY DUPLICATIONS • TO CORRECT ANY CONTRADICTIONS • TO LESSEN THE ADMINISTRATIVE BURDEN

  24. SECTION 6 • REPEAL SECTION 5 OF THE PRINCIPAL ACT ON PUBLICATION OF AGREEMENTS • THE BILL NOW GIVES FORCE AND EFFECT TO THE CONVENTIONS • NOT NECESSARY TO GIVE FORCE AND EFFECT BY PROCLAMATION • PUBLICATION IN A NOTICE FOR INFORMATION PURPOSESIS PROVIDED FOR

  25. SECTION 7 • REPEAL SECTION 6 OF THE PRINCIPAL ACT ON THE NON-APPLICATION OF IMMUNITIES AND PRIVILEGES • DUPLICATES ARTICLE 34 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS • DIFFERENT PROVISIONS APPLY TO MISSIONS AND INTERNATIONAL ORGANIZATIONS IN TERMS OF THE RESPECTIVE CONVENTIONS • PROVIDE FOR WAIVER OF IMMUNITIES AND PRIVILEGES TO BE DONE EXPRESSLY AND IN WRITING

  26. SECTION 8 • AMEND SECTION 7 OF PRINCIPAL ACT ON THE REGISTER OF PERSONS ENTITLED TO IMMUNITIES AND PRIVILEGES TO PROVIDE FOR THE INCLUSION OF PERSONS ENJOYING IMMUNITIES AND PRIVILEGES IN ACCORDANCE WITH • THE UN CONVENTION AND • THE CONVENTION ON SPECIALIZED AGENCIES

  27. SECTION 9 • REPEAL SECTIONS 8 AND 9 OF THE PRINCIPAL ACT. SECTION 8 ON EXEMPTION FROM TAXATION • DUPLICATES ARTICLE 34 OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS • DIFFERENT PROVISIONS APPLY TO MISSIONS AND INTERNATIONAL ORGANIZATIONS IN TERMS OF THE RESPECTIVE CONVENTIONS • PROVISION OF RECIPROCITY NON APPLICABLE TO INTERNATIONAL ORGANIZATIONS

  28. SECTION 9 • REPEAL SECTION 9 OF PRINCIPAL ACT ON EXEMPTION OF GOVERNMENTS, ORGANIZATIONS AND INSTITUTIONS IN RESPECT OF IMMOVABLE PROPERTY • NO NEED FOR PROVISION • PRINCIPLE OF EQUITY IN TREATMENT AND NOT RECIPROCITY APPLICABLE • PROVISIONS OF THE CONVENTIONS APPLY

  29. SECTION 10 • AMENDMENT OF SECTION 11 OF PRINCIPAL ACT ON ADJUSTMENT OF LOSS OF REVENUE TO LOCAL AUTHORITIES AND STATUTORY PUBLIC UTILITY ORGANIZATIONS • INCIDENTAL AMENDMENT TO DEAL WITH THE REPEAL OF SECTIONS 8 AND 9 OF THE PRINCIPAL ACT

  30. SECTION 11 • SECTION 12 OF THE PRINCIPAL ACT ON THE RECOGNITION OF CERTAIN BUILDINGS IS REPEALED • DISCRETION NEVER EXERCISED UNDER THIS PROVISION • NOT NECESSARY TO HAVE THIS PROVISION • COSTLY TO IMPLEMENT

  31. SECTION 12 • AMENDMENT OF SECTION 14 OF THE PRINCIPAL ACT ON ACQUISITION, CONSTRUCTION, RELOCATION, RENOVATION, REPLACEMENT, EXTENSION OR LEASE OF IMMOVABLE PROPERTY IN THE REPUBLIC • TO INCLUDE UNITED NATIONS, SPECIALIZED AGENCIES AND ORGANIZATIONS • TO ADD THE REQUIREMENT THAT THE PROPERTY HAS BEEN RECOGNIZED FOR THE USE OF EMBASSIES, CHANCELLERIES, OFFICES

  32. SECTION 13 • SECTION 15 OF THE PRINCIPAL ACT ON LIABILITY INSURANCE REQUIREMENTS • INCIDENTAL AMENDMENT TO INCLUDE ALL PERSONS WHO ENJOY IMMUNITIES AND PRIVILEGES UNDER THE ACT

  33. SECTION 14 • REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR PERMANENT RESIDENTS OF THE REPUBLIC- • PROVISIONS OF THE CONVENTIONS APPLY • SOUTH AFRICAN CITIZENS WHO ARE OFFICIALS SHALL ENJOY FUNCTIONAL IMMUNITIES (ARTICLE 38 OF VIENNA CONVENTIONS ON DIPLOMATIC RELATIONS AND ARTICLE 71 OF CONSULAR RELATIONS, ARTICLE V OF UN CONVENTION AND ARTICLE VI OF SPECIALIZED AGENCIES CONVENTION

  34. SECTION 14 • REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR PERMANENT RESIDENTS OF THE REPUBLIC- • OFFICIALS ARE EXEMPTED FROM TAXATION ON SALARIES PAID BY THE UNITED NATIONS/SPECIALIZED AGENCIES (ARTICLE V OF UN CONVENTION AND ARTICLE VI OF SPECIALIZED AGENCIES CONVENTION • SOUTH AFRICA RECEIVES AN EQUIVALENT AMOUNT TO THE TAX EXEMPTION BACK IN THE FORM OF A DEDUCTION FROM ITS MEMBERSHIP DUES PAYABLE TO THE UNITED NATIONS

  35. SECTION 14 • REPEAL OF SECTION 16 OF THE PRINCIPAL ACT ON APPLICATION OF IMMUNITIES AND PRIVILEGES TO AND CONFERMENT THEREOF UPON SOUTH AFRICAN CITIZENS OR PERMANENT RESIDENTS OF THE REPUBLIC- • “OFFICIAL” MEANS MEMBERS OF THE UN STAFF, BUT NOT THOSE WHO ARE RECRUITED LOCALLY ( GENERAL ASSEMBLY RESOLUTION 76(1) OF 1946

  36. SECTION 14 • REPEAL SECTION 17 OF PRINCIPAL ACT ON LEGAL PERSONALITY OF CERTAIN ORGANIZATIONS AND INSTITUTIONS • PROVISION IS NOW REFLECTED IN SECTION 3A (3)

  37. SECTION 15 • SUBSTITUTE SECTION 19 OF THE PRINCIPAL ACT ON OFFENCES AND PENALTIES BY A NEW SECTION 19 THAT INCLUDES ALL THE CONVENTIONS • TO DELETE THE SPECIFIC FINE IN ORDER FOR THE PROVISIONS OF THE ADJUSTMENT OF FINES ACT OF 1991 TO BE APPLICABLE

  38. SECTION 16 • SUBSTITUTE SCHEDULE 1 OF PRINCIPAL ACT WITH THE FULL TEXT OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS OF 1961

  39. SECTION 16 • ARTICLES 2 - 21 WERE ADDED • establishment of diplomatic relations • functions of diplomatic missions • obtaining an agrement from receiving state • multiple accreditation • head of mission accredited to more than one state • appoint members of staff freely

  40. SECTION 16 • ARTICLES 2 - 21 WERE ADDED • members of staff from nationality of sending state; nationals only appointed with approval • declaration of persona non grata • notification of appointment of staff • size of the mission kept within limits • establishment of offices in localities other than those in which the missions are

  41. SECTION 16 • ARTICLES 2 - 21 WERE ADDED • presentation of credentials • classes of heads of missions • class to which a head of mission is to be assigned to be agreed between states • precedence of heads of missions to be notified to the Ministry • reception of heads of missions to be uniform

  42. SECTION 16 • ARTICLES 2 - 21 WERE ADDED • vacancy of post of heads of mission - charge d’affaires ad interim • right to use the flag and emblem • facilitation of acquisition of accommodation for offices

  43. SECTION 16 • ADD ARTICLES 25, 26, 42 - 53 • accord facilities for performance of functions • subject to laws and regulations, freedom of movement and travel in territory • prohibition to work for personal profit • ending of functions of diplomat • evacuation assistance in cases of armed conflict • suspension of diplomatic relations

  44. SECTION 16 • ADD ARTICLES 25, 26, 42 - 53 • temporary protection of interest of third state by sending state with the approval of receiving state • no discrimination in treatment of missions • end clauses • signature, ratification, accession and entry into force

  45. SECTION 17 • SUBSTITUTE SCHEDULE 2 OF THE PRINCIPAL ACT WITH THE FULL TEXT OF THE VIENNA CONVENTION ON CONSULAR RELATIONS OF 1963

  46. SECTION 17 • ADD ARTICLES 2,3, 4, 6-16 • exercise of consular functions • establishment of consular post • consular functions • exercise consular functions outside district • exercise consular functions in a third state • exercise consular functions on behalf of third state

  47. SECTION 17 • ADD ARTICLES 2,3, 4, 6-16 • classes of heads of consular posts • appointment and admission of heads of consular posts • consular commission or notification of appointment • the exequatur • provisional admission

  48. SECTION 17 • ADD ARTICLES 2,3, 4, 6 - 16,18-30 • notification to authorities of appointments • exercise of functions in case of vacancy,etc • precedence between heads of consular posts • appointment of same person by more than one states • appointment of members of consular staff • size of consular staff

  49. SECTION 17 • ADD ARTICLES 21-30 • precedence between officers of consular posts • nationality of consular officials • declaration of persona non grata • notification of appointments, arrivals, etc • termination of functions of member of post • evacuation assistance • suspension of consular relations/closure

  50. SECTION 17 • ADD ARTICLES 21-30, 34, 36-38 • facilities for work of consular post • use of flag and coat-of-arms • facilitate acquisition of accommodation • freedom of movement • contact with nationals of sending state • information in cases of deaths, guardianship,etc • communication with authorities

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