Diplomatic Immunities

Diplomatic Immunity

A key feature of diplomatic law is the immunity of State officials and international organisations from the jurisdiction of other States.  The law has roots going back hundreds of years and is highly developed.  The modern sources of law are the various Vienna Conventions

• 1961 Vienna Convention on Diplomatic Relations,
• 1963 Vienna Convention on Consular Relations.
• The 1969 UN Convention on Special Missions.

The Diplomatic Relations and Immunities Act, 1967 gives effect to International Conventions in relation to Diplomatic and Consular Relations and related immunities and privileges. It gives the force of law to the Vienna Convention on Diplomatic Relations and the Vienna Convention on  Consular Relations.

There is a high level of compliance with diplomatic law.  It is maintained in the interests of both states by ensuring mutual respect for their diplomats.

Organisations Covered

The 1967 Act also provides and extends to certain diplomatic-type immunities to  judges, officials and other participants in a number of international organizations, including in particular

• the United Nations and certain specialised agencies of the United Nations,
• the Council of Europe and
• the Organisation for Economic Co-operation and Development.

The United Nations agencies named include

• World Health Organization,
• International Civil Aviation Organization,
• International Labour Organization,
• Food and Agriculture Organization of the United Nations,
• International Monetary Fund,
• Universal Postal Union,
• International Telecommunications Union,
• World Meteorological Organization,
• International Finance Corporation, International Development Association.

There is also a  more general provision to designate organisations to which the immunities and privileges under the Act apply.

The bodies concerned, the property and persons to whom the Act and conventions apply, enjoy inviolability, exemptions, facilities, immunities and privileges to the extent provided by the conventions.

Various Agency Immunities

There is a large number of international bodies which enjoy various immunities and privileges under treaties.  For example, the United Nations enjoys its extensive privileges and immunities under the 1946 Convention on the Privileges and Immunity of the United Nation.

The 1947 Convention on the Privileges and Immunities of Special Agencies applies to a number of UN agencies. A further important convention is the Convention on the Prevention and Punishment of Crimes against the Internationally Protected Persons, including diplomatic agents, 1973.

Certain aspects of diplomatic law operate in accordance with customs and are not codified in treaties.  The privileges and immunities of foreign heads of state and senior government officials are based on customary law and not treaties.

Scope of Immunity

The immunity of diplomats acting for international organisations and other states guarantees efficiency and security in diplomatic relations.  In the absence of such immunity, states might impose their home jurisdiction on foreign diplomats for political and selfish reasons.

Immunities and privileges generally arise by reason of a person’s status and office.  It applies to certain office holders who are important to the maintenance of international relations.

The immunity is generally over both official and private acts.  The protection of the diplomats and officials in their private capacity is deemed necessary to ensure the appropriate level of freedom.  For example, an official might be arrested for reasons unrelated to his function and would be thereby prevented from discharging his public functions.

Another aspect of immunity applies to the official act.  These immunities refer to the act itself rather than by reference of the person who does the act.  They apply to a wide range of acts of state.

Waiver & Scope

Immunities can be waived by the appropriate authorities. There is said to be a procedural bar. On waiver, the procedural bar is removed, and jurisdiction resumes.

A related concept is that of non-justiciability.  This is a different concept and reflects the fact that certain acts of foreign governments and international law are outside the jurisdiction of national courts to deal with entirely.  A waiver of jurisdiction cannot take place in this case. There may be an overlap between the concepts in certain cases.

State Representation

A primary, although not exclusive, method by which governments communicate is through the establishment of diplomatic relations.  This usually involves an exchange of permanent diplomatic missions.

The diplomatic mission itself is located in the other jurisdiction and would be otherwise vulnerable.  It is accordingly granted substantial immunities from the host jurisdiction.

The primary function of a diplomatic mission in accordance with the VCDR is to represent the sending state and protect the interest of its nationals, to negotiate with the government of the host state, to ascertain and report to the government of the sending State, the conditions and developments within the host state,  to promote friendly relations between each state and develop their relations in the economic, cultural and scientific field.

Appointment

The consent of the recipient state is required by way of a prior agreement for the appointment of the head of mission.  This principle reflects the desirability that the head of the mission is acceptable to the host state. In the case of other diplomatic agents, consent is not required.

The sending state should give prior notification or at least notification to the host state of the arrival and the final departure and termination of the office and functions of members of missions.

The receipting State may inform the sending State that the head of mission or other member is unacceptable without giving a reason.  In this case, the sending state must recall the person or end his functions.  If it does not do so within a reasonable period, the host state may treat him as longer enjoying diplomatic privileges and immunities.

Iviollable Premises

The premises of the mission are inviolable.  The receiving State and its agents may not enter them without the consent of the head of mission.

The host state is under a duty to take all the steps to protect the premises against intrusions and prevent disturbances to the peace or impairment of its dignity.  The state may be responsible if it fails to prevent an attack or intrusion on the mission.

A peaceful political demonstration may be allowed outside the mission.  However, the host state must balance the rights of political expression with its obligations towards the sending State.

The communications and archives of the mission are inviolable.  The free communication of the mission, including its official correspondence, and free use of diplomatic bags for diplomatic documents and articles for official use, must be protected and upheld from interference.

Immunity from the Host State

Members of the mission enjoy extensive immunity. They are immune from host state jurisdictions.  This extends to the private residence of the diplomatic agents.  They are immune from taxes and most other domestic requirements.

The members of the mission enjoy protection from interference by the host state.  These must be given effect in law.  They are given effect in Ireland by the Diplomatic Relations Act 1967 and in the United Kingdom by the Diplomatic Privileges Act 1964.

Members of diplomatic missions owe duties to the recipient State as a corollary y to their immunity.  They have a duty to respect its laws and regulations.  They must not interfere in its internal affairs.

Official Business Only

Official business with the host  State should be through the ministry for foreign affairs or their miniseries as may be agreed.  The premises may not be used in a manner incompatible with its functions as a mission.

Diplomatic agents must not carry out professional or commercial activities for profit in the State. The Convention sets out the arrangements for the termination of diplomatic functions and severance of diplomatic relations.

Members of Mission

The Vienna Convention and Diplomatic Relations recognises various categories of members of missions who enjoy immunity from jurisdiction to various extents.  Diplomatic agents comprising the heads of the mission (Ambassador) or other members of the diplomatic staff and their families (who are not nationals of the host  State) enjoy immunities by virtue of their position.

They are given immunity, personal inviolability and freedom from arrest and detention.  They are absolutely immune from criminal jurisdiction.  They are also immune from civil and administrative jurisdiction.

Exceptions

They are three exceptions.  The first relates to real property actions relating to property in the host state unless it is held for the purposes of the mission.

The second is the succession issues in respect of which the agent is involved as an administrator, executor, beneficiary, et cetera as a private person and not on behalf of the sending State. This third is action in relation to professional and commercial activities exercised by the diplomatic agent in the host state outside of its functions.

Administrative and technical staff and their families who are not nationals or permanent residents of the host  State have similar immunity from criminal jurisdiction. They have a narrower immunity from civil jurisdiction, which applies to acts performed in the course of their duties only.

Service staff who are neither nationals nor permanent residents of the host  State are immune in the course of their duties only.

Diplomatic agents who represent the sending state but are nationals and residents s of the host state enjoy immunities in respect of their official acts.

All members of missions who enjoy immunities while in office enjoy continuing immunity in respect of the official acts even after termination of office.

Abuse of Immunity

If the immunities and privileges are abused, certain remedies may arise for the host.  There is a duty, although not enforceable, for diplomats and others in the mission to respect the law of the host  State.  Immunity may be waived, in which event the local courts have jurisdiction.

A waiver is the act of the sending state and must be expressly done.  A waiver from the jurisdiction of the courts does not necessarily constitute a waiver from execution and enforcement.

If the host state withdraws its consent to a particular member of the mission, it may declare him persona non grata.  In extreme cases, it may break off diplomatic relations entirely.

Consuls

Consuls represent the sending state and promote and protect its interests in the recipient state.  However, the role emphasises technical and administrative matters rather than political matters in which diplomats deal and specialise.

Consuls often deal with private matters, such as the assistance of nationals of the sending State in the recipient state and the promotion of trade rather than the public more general interest of the sending state.

The VCCR provides that the consul’s roles may be quite broad, including

• protecting in the recipient State, and the interests of the sending state and its nationals.
• assisting nationals in the sending state in need of help in the recipient state.
• obtaining appropriate legal representatives for nationals of the sending State before tribunals and authorities of the recipient state.
• assistance to vessels and aircraft and their crews, as well as the exercising rights s of supervision and inspection.
• promoting trade between the two states.
• issuing passports and visas
• performing notarial functions.
• promoting cultural exchange.

Consular Relations

The Vienna Convention on Consular Relations consolidated an already existing and well-established body of law.  In some cases, there may be older and other bilateral agreements dealing with consular relations.

The broad scheme of the Convention is similar to that in respect of the Convention on diplomatic relations. It provides for the establishment of consular relations, termination, facilities, privileges and immunities relating to those in consular posts.  It deals with privileges and immunities for consular officials and other members of a consular post.  There is a regime in respect of honorary consuls.

Broadly speaking, consular officials enjoy more limited immunity and inviolability.  They may not be arrested or detained except in cases of grave crimes and pursuant to a decision of a competent court.  They enjoy immunity from jurisdiction in respect of their office and their consular functions.

Special Missions

Governments may undertake and establish special missions in addition to instead of permanent diplomatic or consular missions.  They may range in type from missions involving the head of state in person on important political matters to visits by junior officials dealing with more routine matters.

The legal status of missions will vary.  They are governed largely by the rules of customary international law.  Missions enjoy a range of immunities, but they are not as clear-cut.  Controversies can arise in relation to the extent of privileges and immunities.

The 1969 Convection on Special Missions deals with a matter that has not been widely ratified.  It seeks to apply a single standard to all missions which states have found impractical.

The immunities are broadly similar to those under the Vienna Conventions in respect of diplomatic and consular relations.  They are divided into two broad categories with greater and lesser degrees of privilege.

There are remedies for the abuse of privilege which are similar to those applicable to diplomats.  Additional immunities apply to higher-ranking officials such as heads of government and members of government, and others.