#11154 - Diplomatic Relations - International Law I

Diplomatic Relations

1. Vienna Convention on Diplomatic Relations - Key Provisions

   1. Preamble (Supp. I - pg. 5)

      1. "[T]he rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention."

         • NOTE: WHERE a nation is not a signer to the Convention, the argument to make is that the Convention is the best indication of International Law.

   2. Article 2 (Supp. I - pg. 6)

      1. "The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent."

         • There is no obligation under International Law to conduct diplomatic relations.

   3. Article 4 (Supp. I - pg. 6)

      1. "1. The sending State must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State."

      2. "2. The receiving State is not obliged to give reasons to the sending State for a refusal of agrément."

   4. Article 9 (Supp. I - pg. 7)

      1. (1) "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 or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State."

   5. Article 22 (Supp. I - pg. 10)

      1. (1) "The premises of the mission shall be inviolable."

      2. (2) "The receiving State is under a special duty to take all reasonable steps to protect the premises of the mission against any intrusion of damage and to prevent any disturbance of the peace of the mission or impairment of its dignity."

         • BUT, the violation of International Law by the sending State is not an affirmative defense for the receiving State's failure to take appropriate steps to protect the premises of the mission of the sending State. (See The Diplomatic and Consular Staff Case - pg. 325)

      3. (3) "The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution."

         • ALSO, Article 30(1): "The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission" (Supp. I - pg. 12)

         • BUT, the mission is not an extension of the territory of the sending State.

   6. Article 26 (Supp. I - pg. 11)

      1. "Subject to its laws and regulations concerning zones entry into which is prohibited for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory."

   7. Article 27 (Supp. I - pg. 11)

      1. (1) "The receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher. However, the mission may install and use a wireless transmitter only with the consent of the receiving State."

      2. (2) "The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and it functions."

   8. Article 29 (Supp. I - pg. 12)

      1. "The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

   9. Article 30 (Supp. I - pg. 12)

      1. (1) "The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission"

      2. (2) "His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability."

   10. Article 31 (Supp. I - pg. 12)

       1. (1) "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative 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."

            • BUT, shouldn't be doing this anyhow:

              • Article 42 (Supp. I - 17): "A diplomatic agent shall not in the receiving State practice for personal any professional or commercial activity."

            • This exception does not apply to the employment of a domestic servant by the diplomat. (See Tabion v. Mufti - Supp. I - pg. 30)

          • BUT Certification of diplomatic status by the State Department is retroactive and serves as a defense to lawsuits already commenced at the time of certification.

            • "[O]nce the United States State Department has regularly certified a visitor to this country as having diplomatic status, the courts are bound to accept that determination, and that the diplomatic immunity flowing from that status serves as a defense to suits already commenced." (Abdulaziz - Supp. I - pg. 23)

          • JURIS SPLIT re suing the Diplomat's Insurance Co.

            • Majority Rule: There is jurisdiction over insurance co. as Article 31 doesn't mention insurance cos.

              • Insurance Co. would be liable if jurisdiction found

       2. (2) "A diplomatic agent is not obliged to give evidence as a witness."

       3. (4) "The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State."

   11. Article 32 (Supp. I - pg. 13)

       1. (1) "The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State."

       2. (2) "Waiver must always be express."

          • BUT Waiver of diplomatic immunity, with respect to civil jurisdiction, is a wholly separate act from waiver of immunity from criminal jurisdiction. (See Knab v. Republic of Georgia - Supp. I - pg. 28)

            • "[T]he Convention considers immunity from criminal jurisdiction and immunity from civil and administrative jurisdiction to be distinct privileges. Therefore, it is possible that a state may waive one immunity and not waive the other. . . . Such a waiver . . . is . . . a complete waiver of one immunity, which does not necessarily affect the other. . . ." (Knab v. Republic of Georgia - Supp. I - pg. 28)

          • AND "Diplomatic immunity can be waived by continuing to assert a claim while at the same time seeking immunity from a counterclaim." (Abdulaziz - Supp. I - pg. 25)

          • ALSO, if you don't move to dismiss after being sued = waiver

   12. Article 34 (Supp. I - pp. 13-14)

       1. "A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

          • (a) Indirect taxes of a kind which are nominally incorporated in the price of goods or services;

          • (b) Dues and taxes on 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;

          • (c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of article 39;

          • (d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;

          • (e) Charges levied for specific services rendered;

          • (f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of article 23."

   13. Article 36 (Supp. I - pg. 14)

       1. (1) "The receiving State shall . . . permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage and similar services, on:

          • (a) Articles for the official use of the mission;

          • (b) Articles for the personal use of a diplomatic agent or member of his family forming part of his household, including articles intended for his establishment."

   14. Article 37 (Supp. I - pg. 14)

       1. (1) "The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36."

   15. Article 38 (Supp. I - pg. 15) - Functional BUT NOT total immunity

       1. "1. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his function."

       2. "2. Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission."

   16. Article 39 (Supp. I - pg. 28) - RESIDUAL IMMUNITY &...