|
Introduction to the New Diplomatic Immunities
and Privileges Act, Act No 37 of 2001
--------------------------------------------------------------------------------
The new Diplomatic Immunities and Privileges Act came
into force on 28 February 2002 and repealed the Diplomatic
Immunities and Privileges Act, Act No. 74 of 1989. The
purpose of this document is to introduce the new Diplomatic
Immunities and Privileges Act, Act No. 37 of 2001 and
to explain what the reasons were for the adoption of
a new Act and what the new Act involves.
REASONS FOR THE ACT
Parliament approved South Africa's accession to the
1946 Convention on the Privileges and Immunities of
the United Nations and the 1947 Convention on the Privileges
and Immunities of the Specialised Agencies (hereinafter
referred to as "the Conventions") on 26 and
27 June 2001. South Africa deposited its Instruments
of Accession to these Conventions on 27 August 2001.
In terms of these Conventions South Africa, as a Party
thereto, is under the obligation to take the necessary
steps to give legal effect to the provisions thereof.
This needed to be done through legislation.
South Africa acceded to the Vienna Convention on Diplomatic
Immunities and Privileges and to the Vienna Convention
on Consular Relations (hereinafter referred to as the
"Vienna Conventions") in 1989 without making
any reservations. However, the now repealed Diplomatic
Immunities and Privileges Act, Act No. 74 of 1989 (hereinafter
referred to as "the old Act") incorporates
only some of the provisions of the Vienna Conventions
as part of South African law, which created problems
with the administration thereof. The provisions of the
Vienna Conventions are customary international law and
unless a Party has made reservations when becoming a
party thereto, it is obliged to give effect to all the
provisions thereof. As South Africa did not make any
reservations when it became a Party to the Vienna Conventions
in 1989, there was no basis for the selected incorporation
of the provisions thereof. In order to rectify this
situation, the provisions of the Vienna Conventions
had to be incorporated in full in South African law.
One of the major shortcomings of the Act is the ad hoc
manner in which the granting of immunities and privileges
to international organisations and specialised agencies
was done. The ad hoc approach followed in the old Act,
gave rise to a situation where all international organisations
were not treated the same due to the differing individual
agreements that were concluded with them in terms of
the provisions of the old Act. The lack of uniformity
in treatment made the administration and regularisation
of the international organisations and specialised agencies
in South Africa problematic. Urgent attention to this
problem was needed.
South Africa’s international relations grew extensively
since the promulgation of the old Act in 1989, not only
between states (diplomatic and consular relations),
but also with international organisations and specialised
agencies alike. Since 1989, 110 diplomatic missions
and 56 consular offices were established, 18 offices
of international organisations and specialised agencies
were opened. The old Act was thus in many instances
out-of-date and in dire need of amendment.
South Africa also hosts international conferences and
meetings more frequently than before. For example UNCTAD,
NAM, WCAR and the WSSD later this year. Where United
Nations and its specialised agencies are involved, they
require that the specific immunities and privileges
set out in the Conventions should apply to the participants
during such conferences and meetings. The old Act did
not provide for such situations and time consuming administrative
processes had to be followed to confer immunities and
privileges to participants of such meetings. This administrative
burden needed to be lessened.
In order to address the above mentioned problems, it
was necessary to repeal the Diplomatic Immunities and
Privileges Act, Act No. 74 of 1989 and to replace it
with the new Diplomatic Immunities and Privileges Act,
Act No. 37 of 2001 (hereinafter referred to as "the
new Act").
IMPLICATIONS OF THE NEW ACT
The new Act gives effect to South Africa’s international
obligations by -
- incorporating the provisions of the Conventions
on Diplomatic Relations and on Consular Relations
in full in South African legislation;
- incorporating the provisions of the Convention on
Privileges and Immunities of United Nations and of
the Convention on the Privileges and Immunities of
the Specialized Agencies in South African legislation;
- The Act thus gives effect to the provisions of section
231(4) of the Constitution of the Republic of South
Africa, Act No. 108 of 1996 that stipulates that any
international agreement becomes law in the Republic
when it is enacted into law by national legislation.
The new Act synchronizes the ad hoc practices currently
applied to individual organizations in order to introduce
equality in the treatment of the various international
organizations in South Africa and thus addressing one
of the major shortcomings of the Act.
The new Act lessens the administrative burden by -
- making a clear distinction between the privileges
and immunities to be granted to heads of state, diplomatic
missions and staff, consular offices and staff on
the one hand and on the other, the privileges and
immunities applicable to the United Nations, its specialised
agencies and other international organisations;
- providing for the granting of immunities and privileges
with regard to international meetings and conferences
hosted in South Africa by notice in the Gazette of
a meeting recognised by the Minister for this purpose.
- The new Act updates the South African legislation,
removes existing duplications and clarifies uncertainties
and inconsistencies.
CONTENT OF THE DIPLOMATIC IMMUNITIES AND PRIVILEGES
ACT OF 2001
The Act has 17 sections and 4 schedules containing the
texts of the 1961 Vienna Convention on Diplomatic Relations,
the 1963 Vienna Convention on Consular Relations, the
1946 Convention on the Privileges and Immunities of
the United Nations and the 1947 Convention on the Privileges
and Immunities of the Specialised Agencies.
Section 1 contains the definitions in order to assist
with the interpretation of the provisions of the Act.
It is noteworthy that for the first time a definition
of "organisation" as an intergovernmental
organisation is included which does away with the uncertainty
relating to the kind of organisation that will enjoy
privileges and immunities in terms of the Act.
Section 2 provides for the four Conventions to have
the force of law in the Republic. It also defines who
will be regarded as a "member of the family"
for purposes of the Act as this is a matter that is
not defined in the Conventions. The definition of member
of the family takes into account international practices
in this regard.
Section 3 provides specifically that the Vienna Conventions
shall apply to diplomatic missions and members of such
missions and to consular posts and members of such posts.
The Conventions now have the force of law in South Africa.
Section 4 deals with the immunities and privileges
of heads of state, special envoys and certain representatives
by emphasising that the rules of customary international
law shall apply to such individuals or as may be agreed
to in an agreement or as the Minister may confer.
Section 5 deals with the immunities and privileges
of the United Nations, its specialised agencies and
other international organisations. It provides that
the Conventions shall apply to the United Nations and
to its specialised agencies respectively. The provisions
of the Conventions now have the force of law in South
Africa. Other organisations recognised by the Minister
for this purpose shall enjoy such privileges and immunities
as may be provided for in any agreement or as may be
conferred by the Minister.
Section 6 provides for the granting of immunities and
privileges to participants to international conferences
and meetings held in South Africa. The only requirement
is that the Minister recognises a specific conference
or meeting for this purpose by notice in the Gazette.
Section 7 requires that any agreement conferring immunities
and privileges must be published by notice in the Gazette.
The Minister may in cases where it is not expedient
to enter into an agreement, confer such immunities and
privileges as may be specified in the Gazette.
Section 8 makes provision for the waiving of immunities
and privileges of all persons enjoying such immunities
and privileges where the immunity would impede the course
of justice.
Section 9 requires a register to be kept by the Minister
of all persons enjoying immunities and privileges in
South Africa.
Section 10 gives the Minister the authority, where
it appears that the immunities and privileges accorded
to missions of the Republic in the territory of any
state are less than those conferred in the Republic
to the mission of that state, to withdraw some of the
immunities and privileges to ensure equality in treatment.
Section 11 makes provision for the adjustment of loss
of revenue caused by tax exemption to municipalities
out of funds approved by Parliament.
Section 12 requires that any mission, post, United
Nations, specialised agency and other organisation must
obtain the approval of the Director-General of the Department
of Foreign Affairs before it can acquire, construct,
relocate, renovate, replace, extent or lease immovable
property in South Africa.
Section 13 provides that the Minister must prescribe
by regulation liability insurance requirements to be
met by persons enjoying immunities and privileges in
South Africa. This will ensure that when damage caused
by such an individual occurs, adequate insurance is
available to cover such damage.
Section 14 provides for making of regulations by the
Minister.
Section 15 deals with offences and penalties and stipulates
that a person who without reasonable care sues or executes
any legal process against a person who enjoys immunity
is guilty of an offence.
Section 16 repeals the 1989 Act and its 1992 Amendment
Act.
Section 17 contains the short title and commencement.
The Act is to be called the Diplomatic Immunities and
Privileges Act of 2001.
Four schedules follow in which the 1961 Vienna Convention
on Diplomatic Relations, the 1963 Vienna Convention
on Consular Relations, the 1946 Convention on the Privileges
and Immunities of the United Nations and the 1947 Convention
on the Privileges and Immunities of the Specialised
Agencies are respectively reflected.
Office of the Chief State Adviser: International Law
Department of Foreign Affairs
7 March 2002
|
