Diplomatic immunities Flashcards
Diplomatic and consular agents
They perform their activities with the agreement of the receiving State
They (much more the diplomats than the consuls) enjoy priviliges and immunities in the receiving State
Purpose: to protect their function (in the interest of the sending State), not the individual
The matter is regulated by the
- Vienna Convention on Diplomatic Relations
- Vienna Convention on Consular Relations
They bind almost all States and are largely correspondent to customary international law
Vienna Convention on DR 1961, Art. 29
The person of diplomatic agents (i.e. the head of
mission and the other diplomats) shall be inviolable
• duty of the sending State to protect him/her against any attack
• he/she shall not be liable to any form of arrest or detention
Vienna Convention 1961, Art. 22 and 30
The premises of the mission shall be inviolable ( no extraterritorial)
• «diplomatic asylum» (e.g. Julian Assange case, 2012-2019)
• The private residence of a diplomat enjoys the same inviolability and protection a the premises of the mission
• The archives and documents of the mission shall be inviolable (Art. 24)
Vienna Convention on DR 1961, Art. 27
The receiving State shall permit and protect free
communication, by all appropriate means, on the part of the mission for all official purposes
• The official correspondence of the mission shall be inviolable
• The diplomatic bag shall not be opened or detained
Vienna Convention on DR 1961, Art. 31
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State
• He shall also enjoy immunity from its civil jurisdiction, except in the case of:
• (a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
• (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
• (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions
Personal immunity (or ratione personae for all acts) / functional immunity (or ratione materiae, for official acts: they are attributable to the State)
Vienna Convention on D 1961, Art. 39
The diplomat enjoys privileges and immunities from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs
• When his functions have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so
• However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist ( functional immunity)
Vienna Convention on DR 1961, Art. 32 and 41
The immunity from jurisdiction of diplomatic agents may be waived by the sending State
Art. 41
• Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State
Vienna Convention on DR 1961, Art. 9
The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata the sending State shall recall the person or terminate his functions
Violation of local laws / unlawful interference in
internal affairs the only sanction is the expulsion of the diplomat
Vienna Convention on DR, Art. 37
Diplomatic privileges and immunities are extended to members of the family of a diplomatic agent forming part of his household and, to a lesser degree, to members of the administrative and technical staff of the mission and their family, if they are not nationals of the receiving State [the last rule does not correspond to custom]
• Members of the service staff (e.g. cleaning staff) only enjoy functional immunity
Consular agents and premises
Consular premises (to a certain extent), archives and documents are inviolable
• Consuls and consular agents are not amenable to the jurisdiction of the receiving State in respect of acts performed in the exercise of consular functions (functional immunity)
Immunities of Heads of State, goverment and Ministers of Foreign Affairs
In international law it is firmly established that, as also diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal
• The functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties
• Confirmed for heads of State by the Court’s judgment of 4 June 2008 on Certain questions of mutual assistance in criminal matters
