Bernas Public International Law – IMMUNITY FROM JURISDICTION Part 4

CHAPTER 10: IMMUNITY FROM JURISDICTION Part 4

*Obligations of diplomatic mission:

a.) To respect the laws and regulations of the RS (Art. 41)

b.) To refrain from practice for personal profit any professional or commercial activity in the RS. (Art. 42)

* Consuls and Consular Immunities (Vienna Convention on Consular Relations 1967)

– Not concerned with political matters.

– Attend only to the administrative and economic issues.

– Head of consular post must first be authorized by RS via an exequatur.

– RS may at any time and without explanation notify the SS that a consular officer is a persona non grata or a staff member is unacceptable.

– SS can only recall or terminate his functions with the consular post.

– RS has duty to protect the consular premises, archives and interests of the SS and ensure the unimpeded functioning of the consular offices.

* Article V. Consular Functions:

a.) protect the interest of the SS and of its nationals in the RS

b.) further development of economic, commercial, cultural and scientific relations and promote friendly relations between RS and SS

c.) report on development and condition of RS

d.) issue passports and travel documents to nationals of SS and visa and appropriate documents for those who wish to travel to SS

e.) assist nationals

f.) act as notary and civil registrar and perform administrative functions

g.) safeguard interests of nationals in cases of succession mortis causa in RS

h.) safeguard interest of nationals who are minors or lack full capacity

i.) represent or arrange representation for nationals before the tribunals or other authorities of the RS

j.) transmit judicial and extrajudicial documents or executing letters to take evidence for the courts of the SS

k.) exercise supervision and inspection over vessels under SS flag, aircrafts registered in SS, and their crew

l.) extend assistance to such vessels and aircrafts and their crew

m.) other functions not prohibited by laws of RS

* Rights and Privileges of the consular mission:

a.) Freedom of movement (Art. 34)

b.) Freedom of communication (Art. 35)

c.) Communication and contact with nationals of the SS (Art. 36)

d.) Personal inviolability of consular officers from arrest or detention (Art. 41)

• Exceptions:

1.) grave crime; and

2.) pursuant to a decision by a competent judicial authority

e.) Notification of arrest, detention or prosecution (Art. 42)

f.) Immunity from jurisdiction for official acts. (Art. 43)

• Exceptions:

1.) civil actions arising from contract not entered into in official capacity;

2.) civil action by a 3rd party for damage arising from an accident in the RS cause by a vehicle, vessel or aircraft

g.) Liability to give evidence; a consular employee can’t refuse while a consular officer may refuse without threat of coercive measure or penalty. (Art. 44)

h.) Waiver of privilege and immunity under Art. 41, 43, and 44 by SS (Art. 45)

US v. Tehran: US Dipliomatic and Consular Staff in Iran Case ICJ (1980)

Iranian students seized the US embassy in Tehran and a number of consulates in the outlying cities. The Iranian authorities failed to protect the embassy and later appeared to adopt the students’ actions. Over 50 US nationals were held hostage for 444 days.

Court must decide whether the initial attack by the students could be attributed to the Iranian government and whether Iran was therefore in violation of its international obligations.

In deciding in favor of the US, the ICJ ruled:

a.) The Iranian authorities were fully aware of their obligations under the conventions to protect the premises of the US embassy and its diplomatic and consular staff and were aware of the urgent need for action. They had the means to perform their obligations but failed to do so.

b.) The actions required of the Iranian Government by the Vienna Conventions and by general IL is manifest. They must immediately take every effort and opportunity to bring the flagrant infringements of the inviolability of the premises, archives, and diplomatic and consular staff of the US embassy to a speedy end and to restore the consulates to the US control, and in general reestablish the status quo and offer reparation for damage.

c.) The Iranian Government’s decision to continue the subjection of the embassy to occupation by militants and the staff to detention as hostages clearly gave rise to repeated and multiple breaches of the Vienna Conventions, beyond their failure to prevent the attacks.

d.) The Iranian Government did not break of diplomatic relations with the US, not did it indicate any intention to declare any member of the US diplomatic or consular staff in Tehran persona non grata. Thus, Iran failed to employ the remedies placed at its disposal by diplomatic law specifically for dealing with activities it now complains of.