Diplomatic Immunity PDF

DIPLOMATIC IMMUNITY  JURISDICTIONAL IMMUNITIES The principle underlying the doctrine from jurisdiction developed as a natural extension of the immunity of the individual sovereign. Sovereign immunity – A state cannot exercise sovereign domain over another sovereign s...

DIPLOMATIC IMMUNITY  JURISDICTIONAL IMMUNITIES The principle underlying the doctrine from jurisdiction developed as a natural extension of the immunity of the individual sovereign. Sovereign immunity – A state cannot exercise sovereign domain over another sovereign state – Case of the Schooner Exchange v McFaddon  CASE OF THE SCHOONER EXCHANGE V MCFADDON. The ship Exchange which was owned by the Emperor of France had been forced to enter the port of Philadelphia due to bad weather Two Americans claimed they owned the schooner Exchange which they claimed that they seized on the high seas  CASE OF THE SCHOONER EXCHANGE V MCFADDON Held. The ship must be viewed as having entered the states territory under an implied promise that while in such environment, would be exempt from the jurisdiction of the country.  UNDER INTERNATIONAL LAW Certain categories of persons and bodies are immune from the jurisdiction of municipal (local) courts. 1. Foreign sovereigns and foreign states enjoy (Sovereign immunity ( State Immunity )) 2. Diplomatic agents of a foreign state (Vienna Convention) 3. Consular officers of a foreign state (though not diplomats)  DIPLOMATIC IMMUNITIES Diplomatic relations are based on mutual consent between the sending state and the receiving state. The protection of the representatives of another state is necessary to ensure that they can perform their international political functions without fear of prosecution. – based on VC on Diplomatic relations Function of the Mission – Art 3 VC Represents that sending state, protects the interest of the sending state and its nationals  STAFF OF MISSION Absolute immunity applies to the head of the mission. Qualified immunity applies to the staff of the mission  STAFF IS DIVIDED INTO THREE CATEGORIES 1. Diplomatic agent’s i.e. head of mission / chargé d'affaires (an ambassador's deputy) and members of his diplomatic staff – counsellors, attaché, secretaries Provided that they are NOT nationals or permanent residents of a receiving state.They are entitled to complete immunity from (in both official and private acts) criminal, civil including divorce petitions: Shaw v Shaw Note this extends to family of diplomatic agent which form part of his household unless they are nationals of the receiving state  SHAW v SHAW The husband was a member of the United States Mission to the United Kingdom. The wife filed a petition for dissolution of the marriage. The husband issued a summons to strike out the petition on the ground that he was immune from suit by reasons of the Diplomatic Privileges Act 1964.  SHAW v SHAW Held, The court would not entertain the petition for divorce while the husband was a diplomatic agent and was entitled to rely on his immunity from the court's civil jurisdiction provided  STAFF IS DIVIDED INTO THREE CATEGORIES 2. The members of the administrative and technical staff of the mission which includes clerks, typists, translators radio and telephone operators etc. and their families which form part of their household Provided they are neither nationals nor permanent residents of the receiving state. [This category does not enjoy immunity from civil and administrative jurisdiction in relation to acts preformed OUTSIDE THE COURSE OF THEIR DUTIES.]  STAFF IS DIVIDED INTO THREE CATEGORIES 3. The service staff such as butlers, maids, residents of a receiving state, they only enjoy immunity from the civil jurisdiction IN RESPECT OF ACTS PERFORMED IN THE COURSE OF THEIR DUTIES.  EXPULSION OF THE INDIVIDUAL DIPLOMATS A receiving state is entitled at any time and without any explanation to declare a head of mission or member of his diplomatic staff as unacceptable – i.e. persona non grata Usually the sending state recalls the diplomat. If this is not done then the receiving state may refuse to consider him a member of the mission ( he then becomes a regular visitor to the receiving state)  INVIOLABILITY OF DIPLOMATIC AGENTS All diplomats and their families forming part of their household provided they are not nationals or permanent residents of a receiving state enjoy personal inviolability. A receiving state must treat them with due respect and is bound to ensure complete protection of all members of a foreign mission and their families against physical violence, and from attacks on their dignity and freedom. Inviolability extends to a private residence of a diplomat, his papers, correspondence and his property.  INVIOLABILITY OF THE MISSION, ITS RECORDS AND COMMUNICATION Art (1) of the VC defines ‘premises of the mission’ as: ‘….the building or parts of the buildings and the land ancillary there to, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission,’  INVIOLABILITY OF DIPLOMATIC AGENTS Art 22 VC the premises of the mission are inviolable. They may not be entered by agents of the receiving state without the permission of the head of the mission. The rule is universally accepted and was applied by the High Court when it refused to issue a writ of habeas corpus in respect of the incident in 1896 concerning a Chinese refugee Sun Yat Sen who was held against his will in the Chinese mission in London.  INVIOLABILITY OF DIPLOMATIC AGENTS The receiving state is bound to take all appropriate measures to protect such premises against intrusion and damage and to prevent any, disturbance of the peace of the mission or impairment of its dignity.  INVIOLABILITY OF DIPLOMATIC AGENTS After the overthrow of the Shah of Iran – violation of this occurred on November 4, 1979. The US embassy in Tehran was overrun by hundreds of Iranians. They seized diplomat, counsels and marine personnel. The personnel were physically threatened and refused communication with US officials and relatives.  THE ARCHIVES AND DOCUMENTS ARE INVIOLABLE Art 24 VC refers to official Correspondence Art 27 (2) VC refers to the Diplomatic Bag (or pouch) Art 27 (3) - which shall not be opened or detained Generally the receiving state must permit freedom of movement Art 26 VC and freedom of communication Art 27 (1) VC to Mission members  Cessation of immunities and privileges Art 39 (2) VC - normally ceases when diplomat leaves receiving country, or on the expiring of a reasonable time in which to do so. Note Functional immunity involves acts and transactions done in his official capacity  WAVER OF IMMUNITY Personal Immunity involves acts done in private capacity If he returns to receiving state as a private individual he may be accountable for his personal activities and mat be arrested and brought to trial ( not for his functional immunity). VC 32 (1) - it is for the sending state to wave immunity - ‘waver must always be express