The law surrounding the concept of diplomatic immunity afforded to International Organisations provides for removal of court jurisdiction on the basis that the immunities are necessary for the effective exercise of their functions. Although this term is frequently employed, albeit liberally, by these International Organisations, its applicability and scope vary from one jurisdiction to another.
The Court of Appeal of Sri Lanka in its recent judgement in Palihawadana v. Assistant Commissioner of Labour and Another set out the scope and ambit of diplomatic immunity afforded to International Organisations, particularly in light of Sri Lanka’s dualist legal system.
This article examines the elements which need to established by an International Organisation when successfully raising a plea of diplomatic immunity in Sri Lanka, in light of the Palihawadana decision.
How do International Organisations operate within a dualist legal system?
International Organisations are entities commonly created by a treaty or other international legal instrument, which sets out its role and mandate. They are governed by international law; therefore, they exist beyond the realm of the applicable domestic / municipal law of any particular country.
The Sri Lankan legal system is a dualist legal system; therefore, whilst international treaties entered into by the Government of Sri Lanka, would bind the Republic of Sri Lanka as a state, they must be implemented by domestic legislation to have a legal effect within Sri Lanka.
As such, merely acceding to the constitution of an International Organisation would not in itself grant the International Organisation legal personality in Sri Lanka, nor would courts of Sri Lanka give effect to the provisions contained in such instruments, including those relating to immunities and privileges.
What is diplomatic immunity and how is it afforded to International Organisations in Sri Lanka?
Diplomatic immunity is a type of jurisdictional immunity, i.e. a tool to be used to deprive the citizenry from their right to access to court. If successful, a plea of jurisdictional immunity will have the ability to disable or remove the exercise of judicial power, provided for by the Constitution of Sri Lanka.
In Sri Lanka the rights and privileges relating to diplomatic immunity are contained in the Diplomatic Privileges Act No. 9 of 1996 (as amended) (the “DPA”). The DPA was Sri Lanka’s response to its dualist practice of enacting domestic legislation to give effect to its international obligations, in this instance the Vienna Convention on Diplomatic Relations of 1961 (the “Vienna Convention”).
Although, the Vienna Convention does not contain any reference to immunity being afforded to International Organisations, Section 4 of the DPA sets out a mechanism to give effect to the immunity provisions in agreements entered into with inter-governmental and international organisations.
What are the elements for successfully raising a plea of diplomatic immunity?
In this background, the Court in Palihawadana held that in order for an International Organisation to successfully rely on a plea of diplomatic immunity;
Why are the scales tipped in favour of the rights of the citizenry?
The courts of Sri Lanka have endeavoured to protect the sovereignty which is reposed within the people under the Constitution of Sri Lanka, and their constitutional right to exercise such sovereignty through access to courts. The courts of Sri Lanka are therefore very mindful that any obligations that the Government of Sri Lanka undertakes as a State does not infringe or curtail this right.
Thus, International Organisations operating within Sri Lanka ought to be mindful of this view adopted by the courts when attempting to invoke a plea of immunity, and refrain from seeking to solely rely on their constitution or relevant treaty / agreement, but rather ensure that such instruments have been duly enacted through domestic legislation and given effect under the DPA.
Christina Hettiarachchi
Junior Counsel