Conceptual differentiation in immunities from jurisdiction

Updated: Feb 22

International lawyers attempting to illustrate how international law plays a central role in the relations of states would do well to point to the example of the law governing diplomatic privileges and immunities as an example of how well international law can work. In terms of enforcement, international law is highly dependent on the principle of reciprocity. Diplomatic law illustrates the benefits of close interdependence amongst states with every state being both a sending and receiving state and, therefore, being generally unwilling to upset the balance. We should recall the discussion of the importance of the concept of reciprocity from the first lecture and the important work of Professor Denza in this area who indicated that:

_Reciprocity is itself “a constant and effective sanction for the observance of nearly all the rules of [diplomatic law] … Every state is both a sending and receiving state. Its own representatives abroad are in some sense always hostages. Even on minor matters of privilege and protocol their treatment may be based on reciprocity. For the most part, failure to accord privileges or immunities to diplomatic missions or to their members is immediately apparent and is likely to be met by appropriate countermeasures.[1](1) Denza, E., Diplomatic Law, 4th Edn, OUP, 2016, p. 2

Diplomatic law has developed over many thousands of years. Diplomatic inviolability was likely one of the earliest principles of international law - it is well established that the principle of the inviolability of the diplomatic envoy was observed among very many different and, often, unconnected empires within the ancient world. This was likely due to necessity or religious observances. By the time that permanent diplomatic relations emerged in the fifteenth century, three secular bases of diplomatic law had emerged:

the ‘representative character’ theory,

The representative character theory attracted most favour in the early development of diplomatic privileges and immunities.

The theory “ultimately traces immunity to the sovereignty of the state which sends the agent.”

Developed by the classical writers, including Hugo Grotius, the so-called grandfather of international law, who noted, in 1625, that “[A]mbassadors as if by a kind of fiction, are considered to represent those who sent them.”[1] (1) Grotius, De Jure Belli ac Pacis: Libre Tres, (1625) (J.B Scott (ed), Classics of International Law Series, Oxford University Press, 1925, Bk. II, Ch. XVII, p. 443)

Accordingly, the early development of the theory required that ambassadors were to be given all the privileges and respect which would be accorded to the sovereign himself.

The representative character theory did not die out with the emergence of the modern state system. Rather, the development of the theory of the absolute sovereignty of states ensured that the privileges and immunities of the ambassador continued unchallenged by these developments.

the ‘exterritoriality’ theory

According to this theory, the ambassador is considered, by a legal fiction, not only to be outside the jurisdiction of the territorial state but actually physically outside that territory. Thus, according to Bynkershoek, writing in 1721:

“Ambassadors are thought of as being outside the territory of him to whom they are sent as ambassadors.”[1](1) Bynkershoek, De Foro Legatorum, 1721 (J.B. Scott (Ed) Classics of International Law Series, Oxford University Press, 1964, Ch VIII, p. 43)

In practice, immunity from jurisdiction was extended not only to members of the ambassador’s family and his official staff but also to unofficial members of his household and any hangers-on. This soon got out of control whereby not only the premises of the embassy and private residences of diplomatic personnel were considered to be foreign territory but also vast areas of the surrounding cities making those areas havens for outlaws and criminals. Exterritoriality is no longer considered to be a valid justification for diplomatic privileges and immunities.

and the ‘functional necessity’ theory.

The excesses associated with the exterritoriality theory and, to a lesser extent, the representative character theory resulted in the emergence of the functional necessity theory.

Necessity of the diplomatic function has been recognised since ancient times, but came to the fore in the work of Emmerich de Vattel in 1758. Vattel noted the need to ensure that ambassadors could function properly noting that:

“[Ambassadors] cannot accomplish the object of their appointment unless they are endowed with all the prerogatives necessary to perform the duties of their charge safely, freely faithfully and successfully.”(1)

(1) Vattel, Le Droit des Gens (1758) (See J. B Scott (ed), Classics of International Law Series, Oxford University Press, 1916, Bk. IV, Ch. VII, p. 376)

Modern Juridical Basis

As the law of diplomatic privileges and immunities developed into the twentieth century, the exterritoriality theory was abandoned and the functional necessity theory came to dominate theoretical justifications in this area. The representative character theory, while remaining relevant, has nevertheless become of secondary importance. Accordingly, when the International Law Commission began its work on the codification of the law of diplomatic privileges and immunities in the mid-1950’s it was guided primarily by the functional necessity theory in areas where state practice was unclear. It did note, however, that it continued to bear in mind the representative character of the head of the mission.

This juridical basis of diplomatic law was confirmed in Paragraph 4 of the Preamble to the Vienna Convention on Diplomatic Relations of 1961 in the following terms:

Realising that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of diplomatic missions as representing states.

Legal Foundations

The basic privileges and immunities of diplomatic missions and their agents are contained in Articles 20-36 of the Vienna Convention on Diplomatic Relations 1961.

Included among the privileges are the exemption of the diplomatic agent from dues and taxes (Article 34), social security provisions (Article 33), personal, public and military service (Article 35) and customs duties, taxes and related charges (Article 36), as well as the exemption of the sending state and the head of mission from dues and taxes in respect of the premises of the mission (Article 23), and the exemption of the mission itself in respect of dues and taxes payable on any fees and charges levied by it in the course of its official duties (Article 28).

While many reasons have been put forward in explanation as to why such privileges are granted, it seems clear that the interference with the functions of a mission and the loss of independence which may by caused by attempts to collect dues or taxes, or in the enforcement of social security provisions or provisions governing military service, for example, provide a more than adequate basis on which to ground these exemptions. Essentially, privileges grant specific exemptions from local jurisdiction. Where no such exemptions exist, the diplomatic agent is required to “respect the laws and regulations of the receiving state.” (Article 41)

However, where a diplomatic agent does break the law in the receiving state, he cannot be arrested or otherwise detained (Article 29). Nor can he stand trial, be sued or be made to testify before the judicial authorities of the receiving state (Article 31). Essentially, a diplomatic agent is both inviolable and, except in respect of a few minor exceptions, immune from the legal process of the receiving state. Article 31(1) of the Convention specifically provides that:

A diplomatic agent is immune from the criminal jurisdiction of the receiving state and from its civil and administrative jurisdiction except as respects real actions relating to private moveable property, actions relating to succession and actions relating to any professional or commercial activity.

The premises of the diplomatic mission (Article 22), its archives (Article 24), and official documents (Article 27(2)), as well as the private residence (Article 30(1)), papers and correspondence and, subject to a few minor exceptions, the personal property of the diplomatic agent (Article 30(2), are all inviolable. Furthermore, the family of a diplomatic agent is entitled to the same privileges and immunities extended to the diplomatic agent (Article 37(1)). In all cases, inviolability and immunity from jurisdiction are clearly justified on the basis of functional necessity. Thus, inviolability is essential for maintaining the independence of the diplomat and the mission and ensuring their protection from interference by the receiving state and by third parties. The immunity of diplomatic agents and, indeed, their families can be justified for similar reasons.

In relation to families, reflect on the case involving the death of Harry Dunn in Oxfordshire, England, in August 2019. Dealing with the Abuse of Diplomatic Privileges and Immunities:

In spite of almost universal compliance, the law of diplomatic privileges and immunities is very occasionally open to abuse by states and by individual diplomats.

The most notorious example of abuse by a state concerned the Iranian seizure of the US embassy in Tehran in 1979. A leading example of abuse by an individual diplomat is undoubtedly the shooting, in London, of WPC Yvonne Fletcher by a Libyan diplomat in April 1984.

Diplomatic immunity is not an unrestrained licence to commit crime. As the International Court of Justice pointed out in the Tehran Hostages Case, the Vienna Convention constitutes a “self-contained regime which, on the one hand, lays down the receiving state’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving states to counter any such abuse.”

So how does this work?

There is a range of administrative measures that receiving states can take to limit the potential for abuse of diplomatic privileges and immunities. These include Article 4 which requires the receiving state to approve the appointment of a Head of Mission (usually the Ambassador) and to give due notice of that appointment (Article 5). Otherwise, diplomatic appointments are a matter for the sending state (Article 7), although in the case of military, naval or air attachés, the receiving state can require their names to be submitted for prior approval.

Article 9 deals with the right of the receiving state to require the departure of a diplomat and this can be done prior to their arrival. It is crucially important for receiving states to do their due diligence on individuals who are being appointed insofar as they will be given significant privileges and exemption from territorial laws.

Punitive Measures

(a) VCDR, Article 9 – persona non grata

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.

In additional to being an administrative measure, Article 9 can be used as a sanction after breach of local law - worth noting that there is a reluctance among states to use the sanction of persona non grata to the fullest extent possible is the possibility of reciprocal action

(b) VCDR Article 31(4) – Prosecution in the Sending State

The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

But note the jurisdictional issues and the evidential issues, as well as the general reluctance of states to prosecute their own nationals who are accused by foreign governments

(c) VCDR Article 32 – Waiver of Immunity

The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity … may be waived by the sending State

In theory this should be the most effective weapon but in practice it is not. We will discuss in the lecture why this might be the case.

(d) VCDR Article 39(2) – Ending of Diplomatic Immunity

When the functions of a person enjoying privileges and immunities 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, but shall subsist until that time, even in case of armed conflict. 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.

This is a key provision of the Vienna Convention on Diplomatic Relations that illustrates both the key difference between immunity rationae personae and immunity rationae materiae that was referred to in the previous lecture, and the possibility that should be known to all individuals benefitting from diplomatic immunity that if they commit an offence in a private capacity, that offence will be open to prosecution at a later date if they were to return to the receiving state after their immunity has ended.

This provision is particularly relevant to the current controversy regarding the killing of Harry Dunn, but also to other examples of where prosecution has occurred in relation to other forms of immunity, such as the failed attempt to prosecute the former President of Chile, Augusto Pinochet in the UK in the late 1990s, and to the possible prosecution of the chief suspect in the murder of WPC Yvonne Fletcher.

Case study of the Honorary Consul

Honorary Consuls have existed for as long as diplomats and ambassadors.

Put simply, they are normally residents of the receiving state who act in the capacity of representatives of the sending state, usually on a voluntary or honorary basis. Honorary Consuls are used by many states but are treated with suspicion by others. They have a rather chequered history with many having been embroiled in situations of corruption, and they are not helped by unscrupulous agencies seeking to “sell” diplomatic immunity.

Increasingly, however, they provide a useful alternative to the significant expense of sending diplomats and other formal agents.In order to understand the position of honorary consuls, we need to understand that of consular officials. These are lower-ranked state representatives of the sending state who work in consulates and deal with issues relating to citizens and businesses of the sending state in the receiving state. They can also issue travel visas on behalf of the sending state. The privileges and immunities of consuls are governed by the Vienna Convention on Consular Relations 1963.

Without going into great detail, their privileges and immunities mirror those of diplomats but are generally less extensive and less universal. Chapter III of the 1963 Convention deals specifically with the position of Honorary Consuls Article 58(2) of the Vienna Convention deals specifically with honorary consuls by confirming the application of other provisions of the Convention to honorary consuls. It states:

Articles 42 and 43, paragraph 3 of article 44, articles 45 and 53 and paragraph 1 of article 55 shall apply to honorary consular officers. In addition, the facilities, privileges and immunities of such consular officers shall be governed by articles 63, 64, 65, 66 and 67.Honorary consuls, like all consuls, are not in and of themselves immune from criminal proceedings. They are subject to arrest and detention. Article 42 of the VCCR provides that:

In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.

So clearly a consular officer or honorary consul can be arrested. Chapter III of the VCCR includes a provision (Article 63) dealing specifically with criminal proceedings against honorary consuls. It provides that:

If criminal proceedings are instituted against an honorary consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except when he is under arrest or detention, in a manner which will hamper the exercise of consular functions as little as possible. When it has become necessary to detain an honorary consular officer, the proceedings against him shall be instituted with the minimum of delay.

Articles 46 to 52 of the VCCR provides to career consular officers several exemptions from the need for residence permits (Art 46); from work permits (Art 47); social security provisions (Art 48); taxation (Art 49); customs duties and inspection (Art 50); estate duties (Art 51); and personal service and contributions (Art 52). None of these provisions apply to honorary consuls. Ultimately, if carefully analysed, all of the privileges and immunities afforded to honorary consuls stem directly from their official function and are limited directly to that function – for diplomats, and to come extent, consuls, who are resident in the receiving state, normally as citizens of the sending state, the additional privileges and immunities to which they are entitled beyond their official functions derive from that residence and their need for protection.