UNIT 4 - EMBASSIES PT.2

Question 1

Members of a diplomatic Mission (embassy)

Answer 1

We have the diplomatic agents: composed by the head of the Mission, which is the ambassador, and the diplomatic staff which are the diplomats. Then we have the administrative and technical staff which has the expertise and then we have the service staff which has no experts not diplomats. All of them are covered by immunity.

Question 2

Who enjoys immunity in an embassy?

Answer 2

The head of the mission and the diplomatic staff enjoys form the highest scale of privileged and immunities.
The administrative and services staff enjoys a lower grade of immunity.

Question 3

What we understand by privileges?

Answer 3

Exemptions in social security, tax provisions and custom duties in the receiving state.

Question 4

What principle was linked with te concept of immunity?

Answer 4

The principle of extraterritorially. Which means that the places, installations in which the mission was located was part of the territory of the sending state, but it is now obsolete.

Question 5

What replaced the principle of extraterritorially?

Answer 5

Replaced by a functional conception, in which it is stated that the scope of immunities and privileges granted were not to benefit the individuals but to ensure the efficient performance of the tasks of the mission (VCDR 1961) this explains and justifies the granting of privileges to the family members of the diplomatic mission.

A diplomatic agent is immune from the judicial system of the receiving state. It is related with the concept of personal inviolability.

Question 6

Concept of personal inviolability

Answer 6

A diplomatic agent is inviolable, so he can’t be arrested, prosecuted or judged nor detention, and the receiving state must treat him respectfully and to take all the necessary steps to prevent any attack on his person, freedom or dignity. Although the sending state is also in charge of protecting its diplomats.

Question 7

Exceptions of personal immunity

Answer 7

1. Private immovable property (in the territory of the receiving state): there is no immunity regarding the civil proceedings of the title or possession of land or building in the land.
2. Private involvement in succession proceedings: there is no immunity if it is involved as a private person, in civil proceedings relating to the estate o a deceased person.
3. Private professional or commercial activity. No immunity in respect to civil proceedings relating to any professional or commercial activity carried out by the diplomatic agent outside his official functions.

Question 8

How the family members of the diplomatic agents are benefited fro immunity and privileges?

Answer 8

He immunities and privileges are also enjoyed by the members of the family forming part of his household, unless they are nationals of the receiving state.

Question 9

Situation of work permit to a spouse of a diplomatic agent

Answer 9

The article 42 of Vienna Convention which prohibits a diplomatic agent from exercising professional or commercial activities outside his diplomatic functions does not apply to the spouses enjoying the immunity. However, some countries do not allow work permits and others make a condition that the immunity of the spouse has been waived in advance.

Question 10

Relations of the diplomatic agentes

Answer 10

- It is accepted:
non-married partners 
- Not accepted: 
Partners of the same sex 
More than one wife
A polygamous marriage.

The final decision lies on the receiving state in difficult situations

Question 11

Immunity of the administrative and technical staff + services staff

Answer 11

A member of the administrative or technical staff plus their family members (part of the household and not nationals or residents of the receiving state) enjoys also immunities and privileges (articles 29-36).

Members of the service staff and private servants enjoy an even lower scale of privileges and immunities.

Question 12

What happens with the immunity of a member of the diplomatic mission national or resident from the receiving state?

Answer 12

If a diplomatic agent is a national enjoys only immunity and privileges form jurisdiction, and inviability, in the scope of the official acts performed in the exercise of his functions.

Other members of the staff shall enjoy privileges and immunities only to the extent admitted by the receiving state.

Question 13

Inviolability of premises of a diplomatic mission

Answer 13

The immunity and privileges include all the buildings and land irrespective of ownership, included the residence of the head of the mission.

Inviolability is of the absolute rule to avoid abuse from diplomatic agents. Agents of the receiving state cannot enter without the head of the mission’s permission. All property on the premises of a mission is immune from search, requisition or execution.

Question 14

Inviolability of documents and archives of the mission

Answer 14

Thy are also inviolable at all times wherever they may be placed. In addition,the receiving state is in charge of the protection of the inviolability of documents in all circumstances and return them if they have been stolen or lost.

Question 15

Duration of the immunity

Answer 15

From: when the person enters the receiving state to take up his post, or when his appointment has ben notified to the foreign ministry.

(The law of the receiving state still applies to the immune person as it does to other persons, it cannot be enforced against him while the immunity lats)

To: the moment they end to be a diplomat.

Question 16

Abuse of immunity from a diplomatic agent

Answer 16

A diplomatic gent may rely on the privileges and immunities to avoid the legal obligations. This may lead a receiving state to ask for the person to leave. Under article 9 of vienna convention.

Question 17

Th article 9 of the vienna convention

Answer 17

It does give a state the power to the removal of a member of a mission who has committed abuse of immunity. The receiving state notifies the sending state as a persona non grata. The sending state then has to recall this person or to end his functions and immunity.

Question 18

When does a state waive the immunity of a person?

Answer 18

When he has committed serious crime no connected with his diplomatic functions. Individuals cannot waive their own immunity.

Question 19

What happens if the sending state does not do anything in a abuse of immunity situation?

Answer 19

The other state can refuse to continue recognizing him as a member of the mission so the privileges and immunities will be withdrown.

Question 20

Circumstances in which the functions of a diplomatic agent is ended

Answer 20

• when his state informs the receiving state
• when the receiving state stops from recognizing him as member of the mission
• death
• breach of diplomatic relations
• disappearance of the sending state
• unconstitutional change of the head of the state

Question 21

Termination of the diplomatic mission under article 39 VCDR

Answer 21

The diplomat has ceased to be a member of the mission, so his privileges and immunities cease. They have a reasonable period (one month) in which they are kept to give people time to leave.

The immunity over acts made in exercise of his functions as member of the mission continues indefinitely but not private acts.

Question 22

What happens with immunity in case of armed conflict?

Answer 22

Article 44-45 VCDR
The receiving state must grant facilities and transportations to the immune persons to leave the country as soon as possible.

If diplomatic relations are broken between two states, or if mission is permanently or temporally recalled:

• the receiving state must respect and protect the premises, property and archives of the mission, even in case of armed conflict.
• the sending state must entrust the custody of all of that, to a third state acceptable to the receiving state.
• the sending state must may entrust the protection of its interests to a third state aceptable to a receiving state.