Bernas Public International Law – IMMUNITY FROM JURISDICTION Part 3

CHAPTER 10: IMMUNITY FROM JURISDICTION Part 3

C. Diplomatic and Consular Immunities

– Based on customary law.

– Official representatives of a state are given immunities and privileges within the territory of another state.

– The immunities and privileges are personal (for diplomat’s benefit) but also functional (to enable the diplomat to perform his functions properly).

– The receiving state has a corresponding obligation to protect the representative and his property and office.

* Diplomatic Immunities (Vienna Convention on Diplomatic Relations 1961)

– Diplomatic relations are purely by mutual consent.

– An agreement by the receiving state (RS) is a prerequisite before the head of mission is sent. The RS has no obligation to explain its refusal, and may at any time and without explanation notify the sending state (SS) that a diplomatic agent is persona non grata or that a staff member is unacceptable.

– The SS can either recall the person or terminate his functions with the mission.

Article I. Who can enjoy diplomatic immunities?

a.) head of mission

b.) diplomatic agent (head of mission or member of diplomatic staff)

c.) members of the mission including the diplomatic, administrative and technical, and service staff

d.) private servant in the domestic service of a member of the mission, not employed by the sending state

e.) premises of the mission, irrespective of ownership

Article III. Functions of the diplomatic mission:

a.) Represent the sending state in receiving state

b.) protect its interests and of its nationals

c.) negotiate with the government

d.) report on developments and conditions in the receiving state

e.) promote friendly relations

* Rights and Privileges of the diplomatic mission:

a.) Inviolability of mission premises and means of transport; RS has duty to protect the premises and prevent any disturbance to the mission or impairment of its dignity. (Art. 22)

b.) Tax Exemptions for the SS and the head of mission, not extending to those payable under the laws of RS by persons contracting with them. (Art. 23)

c.) Inviolability of archives and documents of the mission. (Art. 24)

d.) Free communication and inviolability of official correspondence, of the diplomatic courier, and of the diplomatic bag. (Art. 27)

• Exceptions:

1.) Mission must have consent of RS to instate and use a wireless transmitter.

2.) Diplomatic bag may only contain diplomatic documents or articles for official use.

e.) Inviolability of the person of diplomatic agent from arrest or detention. (Art. 29)

f.) Inviolability of the private residence, property, papers, and correspondence of a diplomatic agent. (Art. 30)

g.) Immunity of diplomatic agent from criminal, civil, and administrative jurisdiction of RS; immunity from giving evidence as witness; immunity from execution of judgement. (Art. 31)

• Exceptions:

1.) real action relation to private immovable property in the RS, unless held on behalf of the SS for mission purposes

2.) action relating to succession, done as a private person and not on behalf of the SS

3.) action relating to any professional or commercial activity done in the RS outside his official capacity

h.) Express waiver of immunity from suit made by SS or impliedly by diplomatic agent upon initiation of proceedings, but only in respect to compulsory counterclaims. Waiver of immunity from suit is distinct from waiver of immunity from execution. (Art. 32)

i.) Exemption from social security provisions of the RS for services rendered for the SS. (Art. 33)

• Exception:

1.) private servant who is either a national or a permanent resident of the RS; and

2.) not covered by the social security provision in the SS or a third state

j.) Tax exemption of diplomatic agents. (Art. 34)

• Exceptions:

1.) indirect taxes incorporated in price of goods or services

2.) dues and taxes on private immovable property in RS (unless on behalf of SS, for mission purpose)

3.) estate, inheritance, succession duties

4.) private income from within RS

5.) charges levied for services rendered

6.) registration, court or record fees, mortgage dues and stamp duty on immovable property

k.) Free entry of articles for official use of the mission and for the personal use of the diplomatic agent or his family. (Art. 36)

• Exception:

1.) personal baggage of the diplomatic agent may be inspected in his/duly authorized representative’s presence if there is serious ground to presume that it contains articles not exempted, or prohibited by import or export laws or quarantine regulations

l.) Extension of immunity to family of diplomatic agent under Art. 29-36; immunity of members of administrative and technical staff and their families under Art. 29-35; immunity of service staff for official acts and tax exemption under Art. 33; and tax exemption of private servant for emoluments due to employment. (Art. 37)

• Exception:

1.) nationals of RS

2.) permanent resident of RS (not for family of diplomatic agent)

m.) Immunities of a diplomatic agent who is a national or permanent resident of RS is limited to immunity from jurisdiction and inviolability in respect to official acts. For others, only such privileges and immunities that the RS may allow. (Art. 38)

n.) Privileges and immunities begin from entry into RS, or if already there, from notification of appointment to Ministry of Foreign Affairs of the RS. They cease upon leaving the RS, or on reasonable period, but shall subsist even in armed conflict. (Art. 39)