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Unpublished Paper
INTERNATIONAL IMMUNITIES AND FIGHTING TERRORISM – SHOULD DIPLOMATIC, CONSULAR AND UN OFFICIALS IMMUNITY FROM SEARCHES PREVENT CONDUCTING SECURITY CHECKUPS IN BORDER CROSSINGS AND AIRPORTS?
ExpressO (2008)
  • ithai Apter, NYU School of Law
Abstract

International Immunities and Fighting Terrorism – Should Diplomatic, Consular and UN Officials Immunity from Searches Prevent Conducting Security Checkups in Border Crossings and Airports? - ABSTRACT

Diplomatic, consular and United Nations officials usually enjoy general immunity from searches conducted on their persons, belongings and official vehicles, at border crossings. Although searches are conducted at airports, official baggage is still exempt from such inspection, based on the same premise of immunity.

The argument presented by the paper is that this immunity (when applicable) should mostly not be absolute in times of proven threats of terrorism. As this is not the current state of affairs, the first sections focus on a critical analysis of the origins of the applicable legal regime and state practice. The underlying theme is the question of whether the original rationales for such immunities still exist today.

When thinking about conducting security checkups to internationally protected persons, who enjoy immunities under international law, the prevailing argument supporting such a policy is the right of a state for self defense (or its right to prevent the smuggling of explosives into its territory). The paper would briefly discuss the “self defense excuse” and its possible application when it comes to international and diplomatic, consular or UN law as enshrined in the relevant conventions.

The validity of arguing for limiting immunities from searches depends on the level of threat which emanates from those who enjoy them, as the paper would describe the various examples of such abuse and what could be learned from them. At this stage the paper would present the common way national jurisdictions, as well as international bodies, respond to these instances of abuse, focusing especially on abuses in the context of war, terrorism and national security.

When discussing international immunities, we must recognize that although these grant much protection to the protected persons, they are never absolute. The most common exception to such immunities is that the sending party (the foreign state or the United Nations) can voluntarily relinquish the immunity. The paper would analyze this exception, alongside others, developed in international customary law. This analysis would be imperative in formulating the argument in support of posing limits on international immunities from searches when there is credible suspicion for abuse, proving they were created in response to the needs of the host states and the new realities they faced (when dealing with foreign diplomats), as should be considered in the case of immunities from searches.

The final section of the paper would attempt to outline alternatives to the current international law regime concerning immunity from searches for internationally protected persons. These alternatives would establish a basis for formulating possible guidelines for security forces which are daily faced with the task of ensuring security, and preventing the smuggling of explosives on the one hand, while respecting the basic principles of international immunities from searches on the other.

As the paper would show, modifications of the current conventions would not be necessary, or realistic, as the alternatives derive from different modes of interpretation for the current international legal regime.

Keywords
  • Diplomatic Immunity,
  • Consular Immunity,
  • Borders,
  • Security,
  • Terrorism
Disciplines
Publication Date
July 5, 2008
Citation Information
ithai Apter. "INTERNATIONAL IMMUNITIES AND FIGHTING TERRORISM – SHOULD DIPLOMATIC, CONSULAR AND UN OFFICIALS IMMUNITY FROM SEARCHES PREVENT CONDUCTING SECURITY CHECKUPS IN BORDER CROSSINGS AND AIRPORTS?" ExpressO (2008)
Available at: http://works.bepress.com/ithai_apter/1/