Immunity from jurisdiction

Diplomatic agents enjoy immunity from criminal jurisdiction not an exemption from the substantive law. Therefore, it is possible that immunity is waived and local law is applied.

According to article 41, it is the duty of all persons enjoying immunities and privileges to respect the laws and regulations of the receiving state.

When a diplomatic agent commits serious breach of law (criminal law) she may be declared persona non grata, but can never be prosecuted by the host state.

Diplomatic agents also enjoy immunity from local civil and administrative jurisdiction. Except in the case of:

  1. 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;
  2. 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;
  3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

Immunity from the jurisdiction continues to subsist even after the termination of diplomatic functions. The acts of a diplomatic agent are considered the act of the sending state, hence even after the termination of functions immunity is justified. However, it is always a difficult question to determine what acts of diplomatic agents fall under the act of the sending state. In Knab v. Republic of Georgia (1998) US District Court. A Georgian diplomat killed a girl while driving drunk. The diplomat was coming from a diplomatic reception. Parties to the case agreed that the diplomat enjoyed immunity so they proceeded with a claim against Georgia instead.

Similarly, in a German Case (Former Syrian Ambassador to the German Democratic Republic (1997), the Syrian ambassador was instructed to do everything possible to assist a terrorist organization in Germany. The Ambassador then accepted for safekeeping a bag of explosives which was later used by the terrorist group to bomb a place in West Berlin. The Court held that the Ambassador had immunity and the claim should be directed against the Syrian state instead.

Diplomatic agents are also exempt from the application of local law relating to social security, dues and taxes. Privileges concerning custom duties, personal services, public service, military obligations, giving evidence as a witness.

  1. Who enjoys immunity

Apart from diplomatic agents, administrative and technical staffs, as well as members of a diplomatic household enjoy immunities specified in articles 29-35 (see article 37(2)). The immunity also extends to their family.

However, the article 31(1) immunity from civil and administrative jurisdiction is limited in respect of these individuals to acts performed in the course of their official duties.

In regard to service staff, if they are not nationals of the receiving/host state, they enjoy immunity in respect of acts performed in the course of their duties and exemption from dues and taxes on the emoluments they receive through their employment and from social security provisions.

  1. Duration of Immunity

The immunity starts with the entry of the diplomatic agent into the receiving state, or in such case when the diplomat is already in the country the moment she is appointed and appropriately notified to the receiving state and ends when the diplomat leaves the country or after reasonable period of time after she ceases to be remain as a diplomat.

After a diplomat has been declared persona non grata, the diplomat ceases to enjoy immunity after the expiry of reasonable period of time.

  1. Waiver

See article 32.

Should be express.

In case of waiver of immunity from civil or administrative jurisdiction, the waiver does not imply waiver in respect of the execution of the judgment, for which separate waiver is necessary.

Waiver once give is irrevocable.

Waiver may be selective. That is, for example, a waiver may relate to only criminal jurisdiction leaving immunity in case of civil jurisdiction in tact or vice versa.

Waiver must come from somebody who has necessary authority.

  1. Consuls

Are distinct in function and legal status from diplomatic agents.

They are not accorded the type of immunity generally accorded to diplomatic agents.

Consular functions vary and include the protection of the interests of the sending state and its nationals, development of economic and cultural relations, the issuing of passports and visas, administration of the property of nationals of the sending state, registration of births, deaths, marriages etc.

Applicable law, VCCR

Immunities and Privileges of Consuls:

See article 31 and 32 that provide inviolability of consular premises and exemption from taxation.

Other privileges and immunities are defined in article 41. However, note that in article 41 consuls are not immune from criminal jurisdiction in case of serious criminal offence.  See other examples in article 41.

  1. Special Missions

In addition to permanent relations, states may also establish or ad hoc missions. These special missions are meant for special purpose. For example, head of state visiting another state, high level delegation visiting another state for negotiation etc.

Applicable alaw, Convention on Special missions 1969.