Norwegians and their claim for Diplomatic Immunity

by Rajeewa Jayaweera

My attention was drawn to the contents of the headline in The Island of Wednesday, 10 July 2013 which stated "Rs 98 mn NGO Law suit: Norway seeks immunity.‘’ It further stated that "Norway has told Sri Lanka to prevent several senior Norwegian government representatives from being hauled up before the Colombo District Courts in a case filed by NGO activist Dr Kumar Rupasinghe or face the consequences". The report also states that one-time Norwegian Ambassador to Sri Lanka Tore Hattram, also cited as a respondent, inquired about the government’s position vis-à-vis the Vienna Convention on diplomatic relations. Ambassador Hattram had written to the External Affairs Ministry through the Sri Lankan embassy in Oslo close after Dr Rupasinghe had moved Court demanding compensation to the tune of Rs 98 million from Norway for prematurely terminating a three year contract for a special project aimed at improving relations among communities living in the Eastern Province covering the period from 2008 to 2011. The British Government too had been a party to the tripartite agreement entered into by the Foundation for Co-Existence and Norwegian Government. A spokesman from the Norwegian Embassy in Colombo had stated "Norway’s position has always been that we do expect Sri Lanka to comply with well-established international rules on immunity, including those contained in the Vienna Convention on Diplomatic Relations to which Sri Lanka is a party. Diplomats and state officials from Sri Lanka are enjoying the same privileges overseas when serving their government".

Since both former Ambassador Tore Hattram and the Norwegian Embassy has seen it fit to quote the Vienna Convention on diplomatic relations to suit their needs, it would be interesting to examine this issue and if Norway actually abides by its obligations as defined in the Vienna Convention for diplomatic relations.

Article 41 Sub Para 2 of the Vienna Convention states All official business with the receiving State (Sri Lanka) entrusted to the mission by the sending State (Norway) shall be conducted with or through the Ministry for Foreign Affairs of the receiving State (Sri Lanka) or such other ministry as may be agreed. Have they adhered to Article 41 Para 2 of the Vienna Convention on diplomatic relations when signing this tripartite agreement? Had the agreement been with the Ministry of External Affairs of Sri Lanka, the Norwegian embassy and its officials could quite rightly claim diplomatic immunity. However, since the agreement is with a non- governmental organization, how can diplomatic immunity as defined in Article 31 Sub Para 1 which states "a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction" be claimed? Would it not be bad in law that in this instance, two of the signatories (Norwegian embassy and British High Commission) can claim protection under the Vienna Convention for diplomatic relations whilst the third party (Foundation for Co-Existence) has no such right? An integral part of any agreement contain method for dispute resolution which generally is either by way of an independent arbitrator whose decision would be binding for both parties or else in a court of law. Agreements also contain the information of the applicable law to be followed in the case of a dispute. Dr Rupasinghe filing a case in the District Court of Sri Lanka makes it obvious that this agreement is subject to the laws of Sri Lanka. If the Norwegian embassy signed such an agreement with a private organization despite Article 31 Sub para 1, what is the basis of claiming diplomatic immunity? Would it not be bad in law for the Norwegian embassy to claim a privilege which the Foundation for Co-Existence is not entitled to?

Article 41 Sub Para 1 of the Vienna Convention on diplomatic relations further states "Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State". Can Norway in all honesty claim that it has not interfered in the internal affairs of this country? A case in point is the facilitation of a consignment of transmission equipment shipped as diplomatic cargo through the Norwegian embassy in Colombo to the LTTE. It has to be admitted that the entry of transmission equipment for the LTTE was approved by our then Prime Minister under the cease fire agreement (CFA) which he authored but did not have the approval of the country’s President, Commander in Chief, the Parliament and most importantly the majority of the people of the country and facilitated by a former civil servant who worked for him. Nevertheless, the embassy getting involved in the import of transmission equipment and handing them over to one of the world’s most brutal terrorist organizations based on an agreement with the Prime Minister who was only a senior cabinet minister with no executive authority does amount to interference in the internal affairs of this country unless Norway considered our then Prime Minister to be the head of state even though Ambassador Hattram presented his credentials to the President of Sri Lanka and not the Prime Minister. Norway in this instance was in gross violation of this clause when they involved themselves in the importation of transmission equipment disguised as diplomatic cargo.

Champions of democracy such as Norway who with their petro dollars proceed to try to teach the fundamentals of democratic governance to countries such as Sri Lanka should realise that there was nothing democratic of the manner in which our former Prime Minister forged ahead with the CFA.

Article 41 Sub Para 3 further states "The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State". Having cleared transmission equipment not intended for use by the Norwegian embassy but to be handed over to the LTTE, storing such cargo in the embassy premises till they could be handed over to the LTTE is a violation of Article 41 Sub Para 3.

Article 22 Sub Para 2 states "the receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity". Some time ago, the Sri Lankan Embassy in Oslo was broken into and vandalized. As per press reports, it had been the work of LTTE vandals. The GOSL provided the Norwegian embassy in Colombo and all other embassies and the residences of their ambassadors in the city with round the clock Police guards who could call for assistance the moment anything unusual is observed. Had Norway provided a police post in front of our embassy building in Oslo, our mission would not have been ransacked. Norway failed to perform its obligations as required in the Vienna Convention on diplomatic relations by not providing security to our mission notwithstanding the fact that Sri Lanka had been under seige by the LTTE for almost three decades and the presence in that country of a large number of persons who sympathized with the LTTE.

Returning to the original issue, the GOSL in this instance should take a leaf from the Indians. It was just a few months ago the Italian Ambassador to India signed as a guarantor for the two Italian marines who had shot dead two Indian fishermen in February 2012 probably mistaking them to be pirates and were being held in custody in India pending trial. The two sailors were given permission to return to Italy to celebrate Christmas with their families and return to India to continue their trial after the Italian Ambassador signed as a guarantor to ensure the return of the two marines. Once the marines reached Italy, it was announced that the marines will not return to India to stand trial. Prime Minister Manmohan Singh’s fragile coalition was accused by the opposition of being too soft and for colluding with the Italians and pressure was brought to bear to insist on the return of the two marines. The Indian Chief Justice notwithstanding diplomatic immunity barred the Italian Ambassador from leaving the country. Finally the Italians caved in and the two marines returned to India. No doubt, the market of 1 billion plus for Italian goods would have played a crucial role in the decision to send them back. The decision also almost brought down the caretaker government of Mario Monti. Nevertheless India took a stand which is admirable.

Sri Lanka has neither the clout nor a market of one billion plus to behave like India especially in our own dealings with India. The close proximity in terms of our geographical locations and the very size of India makes it counter-productive for Sri Lanka to take such a course of action. However, Norway which is another small nation similar to us located thousands of miles away does not need to be handled in the same manner as India. Norway having lived in the close proximity of the Soviet Union from 1917 to 1989 should know better as to how Sri Lanka, another small nation feels especially living in the back yard of India who is a regional power and now aspiring to become a world power. The only difference between the two nations is that Sri Lanka does not have petro dollars to buy influence and get involved in the internal affairs of other countries.

As for the Norwegian embassy’s comment "Diplomats and state officials from Sri Lanka are enjoying the same privileges overseas when serving their government" I dare say I do not believe our diplomats and state officials are guilty of actions incompatible with their status as representatives of a foreign country and their misdemeanours would probably be in the categories of parking offences, driving a vehicle under the influence of alcohol etc. which indeed is against the law but broken by all diplomats who are not teetotallers the world over! To the best of my knowledge, the only incident involving a Sri Lankan diplomat was in the late 50s when our Charge d ’Affairs in Jakarta was declared persona non grata. However, he was exonerated of all charges at the inquiry held in Colombo and continued in the then Ceylon Overseas Service till he retired.

I strongly urge the GOSL not to intervene with the judicial system and permit the Norwegians to get away under the guise of diplomatic immunity. If the Norwegians entered into an agreement which in any case should be subject to the laws of this land, they should accept the resulting responsibilities. Had Dr Rupasinghe reneged in his responsibilities, the Norwegians would not have hesitated to take him to courts. In the same token, Dr Rupasinghe too should have the same privilege. Further, let the courts decide if the Norwegians or Dr Rupasinghe is at fault. I also urge the GOSL to prevent foreign missions from entering into agreements with non-governmental organizations unless they voluntarily agree to give up their right to diplomatic immunity in the event of litigation.

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