Abuse of diplomatic immunity in family courts: there's nothing diplomatic about domestic immunity.

• Author: Castro, Amanda M.

1. INTRODUCTION

   Democracy is founded upon the principle that no one is above the law. (2) International law nevertheless permits diplomats to escape liability for crimes or civil wrongs they commit in the country where they are being hosted. (3) Some scholars estimate that, each year, individuals with diplomatic immunity commit thousands of crimes around the world. (4) Another abuse of diplomatic privilege is found in the form of "deadbeat diplomats" who avoid paying spousal and child support by claiming immunity from jurisdiction of the courts. (5)

   There are many individuals who are known, and many more who are unknown, who have had their otherwise valid family court claims nullified on diplomatic immunity grounds. (6) Such claims include divorce, alimony, child custody, child support, and paternity. (7) Diplomats are entitled to avoid these claims because, under the Vienna Convention on Diplomatic Relations (Vienna Convention), individuals who receive diplomatic status are immune from being sued both criminally and civilly. (8)

   In an attempt to respond to concerns regarding the abuse of diplomatic privilege in family support cases, the United Nations implemented a wage-garnishment program in 1999.9 Still, pursuant to the Vienna Convention, family court judges may not hear cases brought in their courts against diplomats who have immunity. (10) This forces judges to choose between foreign policy interests and the interests of the parties and their children, which can lead to a ruling contrary to the Vienna Convention. (11) Overall, diplomatic immunity in domestic relations cases creates confusion, does not support the policy behind it, and leaves families struggling without redress. (12) If countries chose to utilize the waiver provision of the Vienna Convention, however, or allow family court cases to be heard against diplomat-defendants in accordance with the theory underlying diplomatic immunity, these problems could be solved. (13)

   This Note focuses on how diplomatic immunity affects civil-domestic and family court issues. (14) Parts II.A and II.B present a description of diplomatic immunity law before and after the Vienna Convention took effect. (15) Part II.C surveys the Diplomatic Relations Act of 1978, which took effect in the United States after the Vienna Convention entered into force. (16) Part II.D outlines the theories underlying diplomatic immunity. (17) Part II.E presents a snapshot of abuses of diplomatic privileges in criminal and administrative contexts, while Part II.F explains abuses of diplomatic immunity in civil-domestic cases. (18) Parts II.G and II.H explain various responses to such abuses, including the wage-garnishment program. (19) Part III analyzes the effect of diplomatic immunity law on domestic relations. (20) Specifically, Part III.A discusses the failure of the wage-garnishment program, and Part III.B explains how the other avenues to prosecution allowed under the Vienna Convention are unworkable for family court plaintiffs. (21) Finally, Part III.C recommends that international law allow for domestic disputes to be heard against diplomats despite their immunity. (22)

2. HISTORY

   1. Pre-Vienna Convention Diplomatic Immunity Law

      The principles of diplomatic immunity originated more than 3000 years ago. (23) Early societies first developed the idea of diplomatic immunity to allow messengers to move freely between communities to discuss war, peace, and trade. (24) In biblical times, messengers sent by dignitaries to their adversaries received such unwelcomed treatment that complete immunity was imperative. (25) The first diplomatic immunity law arose in Europe when nations began to commonly exchange diplomats, meaning that individual countries would send an ambassador to other countries to foster foreign relations. (26) This law, the Act of Anne of 1708, stated that all writs and processes to arrest or imprison ambassadors or their servants were "null and void." (27) The American Colonies adopted this Act until Congress passed the Crimes Act of 1790 (Crimes Act), which, following the traditional approach, forbade the arrest of an ambassador or the seizure of his property. (28)

      The broad scope of diplomatic immunity granted by the Crimes Act began to clash with evolving world conditions and was no longer compatible with the modern world. (29) Throughout the 1800s, there were numerous instances in which abuses of diplomatic immunity resulted in financial loss, property damage, and personal injury with little to no compensation or other adequate legal remedy for the victims. (30) While the principles of diplomatic immunity depend upon uniform application, more and more countries began to adopt narrower interpretations of the rule during the 1900s. (31) Widespread opinion favored modernizing diplomatic immunity by focusing on protecting the function of the mission rather than the diplomat. (32) The need for international uniformity on the scope of immunity, coupled with a growing dissatisfaction with absolute immunity, led to the adoption of the Vienna Convention. (33)

   2. Vienna Convention on Diplomatic Relations

      From March 2 to April 14, 1961, delegates from eighty-one countries gathered at the United Nations Conference on Diplomatic Intercourse and Immunities in Vienna, Austria. (34) The representatives convened to create an international consensus on the immunities and privileges of diplomats.35 The conference culminated in the signing of the Vienna Convention, which addressed every aspect of diplomatic relations between the participating nations. (36) Consent to be legally bound by its provisions would be expressed by ratification or accession. (37) The Vienna Convention adopted the more contemporary, "functional approach," which no longer afforded complete and unqualified immunity to foreign nationals associated with a diplomatic mission. (38)

      The Vienna Convention established four categories of diplomatic personnel, each having different levels of immunity: diplomatic agents, administrative and technical personnel, service staff, and private servants. (39) Those falling under the first category--diplomatic agents--include heads of diplomatic missions as well as members of their staff or family; all are immune from criminal prosecution and civil liability for acts committed within their official capacity in the receiving state. (40) However, the Vienna Convention specifically provided three exceptions to their immunity from civil jurisdiction: real actions relating to a diplomat's immovable property in the territory of the receiving state; actions relating to succession in which the diplomat is an executor, administrator, heir, or legatee; and actions relating to any professional or commercial activities in the receiving state, which are outside of official duties. (41) This third exception establishes that persons who enjoy diplomatic immunity are immune from neither actions relating to activity exercised beyond the scope of their official functions, nor execution of judgments relating to those actions. (42) Therefore, immunity from legal process in civil actions applies only to official acts and omissions. (43) Those falling under the other three categories enjoy a more limited immunity from the jurisdiction of the receiving state. (44)

   3. Diplomatic Relations Act of 1978

      The Vienna Convention was a self-executing treaty--that is, the treaty immediately became a part of U.S. law upon ratification. (45) When the United States ratified the Vienna Convention in 1972, it permitted Congress to enact additional legislation to supplement the Convention's provisions and to abolish the Crimes Act, ultimately providing diplomats more protection than the treaty required. (46) The Diplomatic Relations Act of 1978 formally codified the Vienna Convention and mandates that "[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention ... shall be dismissed." (47)

      In response to public hostility towards the lack of accountability following crimes committed by diplomats, Congress enacted limiting provisions regarding liability insurance, which the Vienna Convention had not addressed. (48) The Diplomatic Relations Act of 1978 requires diplomats to purchase liability insurance and also provides a direct right of action for injured parties against the diplomat's insurer. (49) The intent of these provisions was to make the diplomat's immunity immaterial by allowing recovery through the diplomat's insurer. (50)

      Still, the Act is seen as inadequate for the purpose of protecting the rights of private citizens. (51) Many difficulties remain with respect to enforcing the liability insurance provisions and there are many circumstances in which individuals cannot recover for their injuries received through civil or criminal acts committed against them by diplomats. (52) Congress considered several bills that would have provided some relief in these situations by establishing a claims fund, which would compensate injured citizens who could not otherwise bring a successful action against a diplomat, but none of them passed. (53)

   4. Theories Underlying Diplomatic Immunity

      The policy justifications underlying diplomatic immunity have fluctuated over time. (54) Historically, courts and legal scholars have used four theories to justify diplomatic immunity: sacredness of ambassadors, extraterritoriality, representative character, and functional necessity. (55) The first theory claimed that because diplomats are "sacred," they are immune from prosecution, but this theory can no longer be justified in a modern world where a person's status alone does not shield her from responsibility for all of her wrongful acts. (56) The second theory, the theory of extraterritoriality, posits that because a diplomat represents the government of his or her home state, he or she is considered to always be within that state's...