Academic journal article Suffolk University Law Review

Abuse of Diplomatic Immunity in Family Courts: There's Nothing Diplomatic about Domestic Immunity

Academic journal article Suffolk University Law Review

Abuse of Diplomatic Immunity in Family Courts: There's Nothing Diplomatic about Domestic Immunity

Article excerpt

I. 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)

II. HISTORY

A. 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. …

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