The Star (St. Lucia) - - COMMENT - By RENÉ VÄRK

In a nor­mal course of life, diplo­matic agents are in­volved in dif­fer­ent civil re­la­tions with nat­u­ral and le­gal per­sons in the State to which they have been ac­cred­ited, for ex­am­ple, rent­ing ac­com­mo­da­tion, em­ploy­ing pri­vate ser­vants and pur­chas­ing goods or ser­vices. It is a gen­eral prin­ci­ple that ev­ery per­son in the ‘mar­ket’ should be treated equally and with­out any dis­crim­i­na­tion. There­fore, it is log­i­cal and rea­son­able to as­sume that a diplo­matic agent should have the same rights and du­ties as well as bear the same li­a­bil­ity as ev­ery other per­son in sim­i­lar re­la­tions. How­ever, the mat­ter is more com­pli­cated as diplo­matic agents are given a spe­cial sta­tus ac­cord­ing to in­ter­na­tional law. The re­ceiv­ing State is un­der a le­gal obli­ga­tion to re­spect, as­sist and pro­tect him and not to in­ter­fere with his of­fi­cial func­tions. A diplo­matic agent is granted dif­fer­ent in­vi­o­la­bil­i­ties and priv­i­leges as well as im­mu­nity from the ju­ris­dic­tion of the re­ceiv­ing State in or­der to en­able him to ex­er­cise his of­fi­cial func­tions in­de­pen­dently and ef­fec­tively and to avoid any in­ter­fer­ences on the part of the re­ceiv­ing State. Ju­ris­dic­tional im­mu­nity en­com­passes ac­tu­ally three dif­fer­ent im­mu­ni­ties, namely im­mu­nity from crim­i­nal, civil as well as ad­min­is­tra­tive ju­ris­dic­tion, and it is ac­com­pa­nied by the pro­hi­bi­tion to take mea­sures of ex­e­cu­tion. Be­cause im­mu­nity from crim­i­nal ju­ris­dic­tion is of­ten be­lieved to have ex­ceed­ingly un­just ef­fect on those af­fected by the crim­i­nal be­hav­iour of a diplo­matic agent, the for­mer tends to re­ceive dis­pro­por­tion­ately much schol­arly at­ten­tion and leaves other im­mu­ni­ties in shadow. How­ever, if one takes a look at prac­ti­cal life, it be­comes clear that it is not im­mu­nity from crim­i­nal, but from civil ju­ris­dic­tion that causes more le­gal prob­lems for States. One ob­vi­ous rea­son is the fact that while im­mu­nity from crim­i­nal ju­ris­dic­tion is ab­so­lute and un­qual­i­fied, im­mu­nity from civil ju­ris­dic­tion has cer­tain ex­cep­tions, which ren­der this im­mu­nity some­what un­clear and sub­ject to con­sid­er­able in­ter­pre­ta­tions. This ar­ti­cle an­a­lyzes im­mu­nity from civil ju­ris­dic­tion and pro­hi­bi­tion to take mea­sures of ex­e­cu­tion as well as de­ter­mine their lim­its un­der the reg­u­la­tion of the Vi­enna Con­ven­tion on Diplo­matic Re­la­tions.

Con­cept of Diplo­matic Im­mu­nity

There are both po­lit­i­cal and le­gal as­pects in ev­ery civil dis­agree­ment with a diplo­matic agent. The re­ceiv­ing State prob­a­bly has to make cer­tain com­pro­mises not only be­tween its ex­ter­nal and in­ter­nal in­ter­est, but also be­tween the state and pri­vate in­ter­est, for ex­am­ple, de­mand for the waiver of im­mu­nity may be in­ter­nally pop­u­lar de­ci­sion, but may po­ten­tially harm ex­ter­nal re­la­tions with the send­ing State. Al­though po­lit­i­cal rea­son­ing be­hind par­tic­u­lar de­ci­sions may be com­plex, diplo­matic law is rel­a­tively sim­ple in its le­gal struc­ture in so far as most diplo­matic law de­pends di­rectly on ex­ec­u­tive ac­tion. The sit­u­a­tion is more elab­o­rate in the case of ju­ris­dic­tional im­mu­nity be­cause it in­volves such is­sues as the re­la­tion­ship be­tween the ex­ec­u­tive and ju­di­cial power, the in­ter­pre­ta­tion by the courts of the obli­ga­tions in­curred in­ter­na­tion­ally by the gov­ern­ment and, to some ex­tent, the in­ter­ac­tion be­tween the le­gal sys­tems of the re­ceiv­ing and send­ing State.

Ju­ris­dic­tional im­mu­nity is a prin­ci­ple of pub­lic in­ter­na­tional law ac­cord­ing to which cer­tain for­eign gov­ern­ment of­fi­cials, in­clud­ing diplo­matic agents, are not sub­ject to the ju­ris­dic­tion of lo­cal courts and other au­thor­i­ties of the re­ceiv­ing State for both their of­fi­cial and, to a large ex­tent, their per­sonal ac­tiv­i­ties. How­ever, the need for diplo­matic im­mu­nity, that is, ju­ris­dic­tional im­mu­nity es­pe­cially meant for diplo­matic agents, is nei­ther self-ev­i­dent nor un­chal­lenged. There have al­ways been those who com­pletely op­pose such im­mu­nity, but then again there have equally been those who un­ques­tion­ably be­lieve in the need of diplo­matic im­mu­nity with­out ad­mit­ting any ex­cep­tions. The rea­son­able path lies some­where be­tween the de­scribed ex­treme po­si­tions. As to the jus­ti­fi­ca­tion of diplo­matic im­mu­nity, three the­o­ries have been de­vel­oped since the sev­en­teenth cen­tury. The first two the­o­ries, namely the the­ory of ex­trater­ri­to­ri­al­ity and of rep­re­sen­ta­tive char­ac­ter, are nowa­days dis­re­garded due to their fic­ti­tious and fig­u­ra­tive na­ture and non-com­pat­i­bil­ity with re­al­ity. The In­ter­na­tional Law Com­mis­sion (ILC) also re­jected th­ese the­o­ries (al­though it did not deny the rep­re­sen­ta­tive char­ac­ter of the head of the mis­sion and of the mis­sion it­self) and turned to the the­ory of func­tional ne­ces­sity, which pro­vides a con­cep­tual ba­sis for the Vi­enna Con­ven­tion. Ac­cord­ing to the third the­ory, the jus­ti­fi­ca­tion for grant­ing im­mu­nity to diplo­matic agents is based on the need to en­able nor­mal func­tion­ing of diplo­matic agents as well as the diplo­matic mis­sion. The same po­si­tion can be found in the pre­am­ble of the Vi­enna Con­ven­tion, where it is de­clared that ‘the pur­pose of such priv­i­leges and im­mu­ni­ties is not to ben­e­fit in­di­vid­u­als but to en­sure the ef­fi­cient per­for­mance of the func­tions of diplo­matic mis­sions when rep­re­sent­ing States’. This creates a link be­tween grant­ing im­mu­ni­ties and per­form­ing diplo­matic func­tions and fur­ther­more serves as a cri­te­rion for as­sess­ing whether im­mu­ni­ties are ap­pro­pri­ate and nec­es­sary when such a link is miss­ing.

The im­mu­nity con­ferred to diplo­matic agents is pri­mar­ily pro­ce­dural in char­ac­ter and does not af­fect any un­der­ly­ing sub­stan­tive li­a­bil­ity. The judge said in the English land­mark case of Emp­son v. Smith that ‘it is el­e­men­tary law that diplo­matic im­mu­nity is not im­mu­nity from le­gal li­a­bil­ity, but im­mu­nity from suit’. Sub­ject to ex­cep­tions re­sult­ing from the per­for­mance of diplo­matic func­tions ac­cord­ing to the or­ders of his gov­ern­ment, diplo­matic agents are un­der a gen­eral obli­ga­tion ‘to re­spect the laws and reg­u­la­tions of the re­ceiv­ing State’. In other words, diplo­matic agents are not above the law and if they breach lo­cal law, they are also li­able for such breach, al­though ‘they are not li­able to be sued in the [courts of the re­ceiv­ing State] un­less they sub­mit to the ju­ris­dic­tion’. To re­gard diplo­matic agents also ex­empt from li­a­bil­ity would pro­duce ab­surd and un­just re­sults. For ex­am­ple, a diplo­matic agent who has just paid his debt could sue for re­cov­ery of the money on the ba­sis that he had paid the money in the ab­sence of any obli­ga­tion and the other per­son had re­ceived un­just en­rich­ment.

When­ever im­mu­nity is es­tab­lished and ac­cepted by the court, the lat­ter must dis­con­tinue all pro­ceed­ings against the de­fen­dant con­cerned. The court has to de­ter­mine the is­sue of im­mu­nity on the facts on the date when this is­sue comes be­fore it and not on the facts at the time when an event gave rise to the claim of im­mu­nity or at the time when pro­ceed­ings were be­gun. This means that a diplo­matic agent can raise im­mu­nity as a bar to both pro­ceed­ings re­lat­ing to prior events (that occurred be­fore he be­came a diplo­matic agent en­ti­tled to im­mu­nity) and pro­ceed­ings al­ready in­sti­tuted against him. Al­though all pro­ceed­ings against the diplo­mat agent must be sus­pended dur­ing the pe­riod of en­ti­tle­ment to diplo­matic im­mu­nity, it does not mean that th­ese pro­ceed­ings are null and void be­cause of im­mu­nity. The Court made it clear in the case of Emp­son v. Smith that on the ter­mi­na­tion of diplo­matic sta­tus, for what­ever rea­son, any sub­sist­ing ac­tion that had to be stopped on the grounds of the de­fen­dant’s im­mu­nity could be re­vived. This can be done even though he was en­ti­tled to im­mu­nity when the events con­cerned took place or when the process was

orig­i­nally be­gun. Nev­er­the­less, im­mu­nity of diplo­matic agents re­mains in­def­i­nite in re­spect of the acts per­formed in the course of their du­ties, as they can­not be held per­son­ally li­able for the or­ders given by their gov­ern­ments or for car­ry­ing out such or­ders. In­deed, per­sonal li­a­bil­ity for of­fi­cial acts would make the per­for­mance of diplo­matic func­tion un­rea­son­ably risky for diplo­matic agents.

Scope and Lim­its of Im­mu­nity from Civil Ju­ris­dic­tion

Im­mu­nity from civil ju­ris­dic­tion de­vel­oped slower and later than im­mu­nity from crim­i­nal ju­ris­dic­tion, but the con­cept was es­tab­lished in state prac­tice by the eigh­teenth cen­tury. Such im­mu­nity was de­manded by the fact that the re­ceiv­ing State could not con­trol whether a civil ac­tion is brought against a diplo­matic agent or not. Whereas the ini­ti­a­tion of pe­nal pro­ceed­ings de­pends on the de­ci­sion of pub­lic author­ity, civil ac­tions can be brought be­fore a court by or­di­nary peo­ple. There­fore, im­mu­nity from civil ju­ris­dic­tion was partly de­signed to pre­vent in­jury to the ex­ter­nal re­la­tions of the re­ceiv­ing State, caused by pri­vate suits. Al­though most au­thors were of the opin­ion that im­mu­nity from civil ju­ris­dic­tion should be re­stricted, court prac­tice fol­lowed pri­mar­ily the line of ab­so­lute im­mu­nity, es­pe­cially in cases re­lat­ing to pro­fes­sional or com­mer­cial ac­tiv­ity. It was not un­til the Vi­enna Con­ven­tion that im­mu­nity from civil ju­ris­dic­tion was clearly re­stricted through in­tro­duc­tion of three spe­cific ex­cep­tions. Ar­ti­cle 31(1) pro­vides that a diplo­matic agent shall enjoy im­mu­nity from civil ju­ris­dic­tion of the re­ceiv­ing State, 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 an 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.

Th­ese ex­cep­tions do not, in­deed, re­flect es­tab­lished cus­tom­ary in­ter­na­tional law, but they are nec­es­sary or rea­son­able, at least, for three rea­sons. Firstly, if the re­ceiv­ing State did not have ju­ris­dic­tion over such cases, the lat­ter would prob­a­bly re­main un­ex­am­ined as it would be vir­tu­ally im­pos­si­ble for any court else­where to ex­am­ine the cases. Se­condly, such cases are not con­nected with the of­fi­cial du­ties of a diplo­matic agent, but are purely pri­vate in na­ture. Thirdly, such cases do not usu­ally in­volve the pos­si­bil­ity of crim­i­nal pro­ceed­ings or im­pris­on­ment, which can hin­der the per­for­mance of of­fi­cial du­ties. At the early stage of draft­ing the Vi­enna Con­ven­tion, the United States even sug­gested the dele­tion of the sec­ond as well as the third ex­cep­tion to im­mu­nity from civil ju­ris­dic­tion, but no other State joined the United States in dis­put­ing the de­sir­abil­ity of th­ese ex­cep­tions (the United States aban­doned its de­mand later).

The oc­ca­sions for tak­ing re­course to civil ac­tion against a diplo­matic agent may also arise in a num­ber of cir­cum­stances for which th­ese ex­cep­tion do not ap­ply, for ex­am­ple, non-pay­ment of debts or trades­man’s bill for ar­ti­cles sup­plied for his per­sonal consumption, non-pay­ment of rent or vi­o­la­tion of con­di­tions of a lease, re­cov­ery of hire charges or re­pair bills and com­pen­sa­tion for loss or in­jury caused to a per­son or property due to mo­tor car ac­ci­dents or other forms of de­fault. Ju­di­cial mea­sures are un­avail­able in such cases and the in­jured party has to avail it­self to non-ju­di­cial pro­ce­dures such as ap­proach to the Min­istry for For­eign Af­fairs with a re­quest to act as a me­di­a­tor in the dis­pute. The min­istry can ap­proach the head of the re­spec­tive mis­sion and ask him to fa­cil­i­tate the set­tle­ment of that dis­pute. As most diplo­matic agents are will­ing to pre­serve good rep­u­ta­tion both in the re­ceiv­ing and send­ing State, they will usu­ally reach a set­tle­ment with the other party.

How­ever, if the diplo­matic agent is per­sis­tently re­fus­ing to reach a com­pro­mise, the min­istry can take more se­ri­ous steps and can ask ei­ther the diplo­matic agent to be re­called or his im­mu­nity to be waived.

There is also an in­di­rect ex­cep­tion to im­mu­nity from civil ju­ris­dic­tion of the re­ceiv­ing State. If a diplo­matic agent ini­ti­ates pro­ceed­ings in a court of the re­ceiv­ing State, that is, in­vokes him­self the ju­ris­dic­tion of the lat­ter, he pre­cludes him­self from the pos­si­bil­ity to in­voke im­mu­nity in re­spect of any counter-claim di­rectly con­nected with the prin­ci­pal claim. It is as­sumed that if a diplo­matic agent ini­ti­ates pro­ceed­ings, he sub­mits him­self to the ju­ris­dic­tion of the re­ceiv­ing State in a man­ner that is nec­es­sary for full and com­plete ex­am­i­na­tion of the par­tic­u­lar case. The diplo­matic agent has to take into ac­count that the de­fen­dant must also have the same rights in de­fend­ing his in­ter­est and such de­fence may in­clude the sub­mis­sion of a counter-claim. The lat­ter must be di­rectly, not sim­ply in­di­rectly con­nected with the prin­ci­pal claim. For ex­am­ple, an English court held that when the diplo­matic agent claimed for money or dam­ages from the de­fen­dant, he did not sub­mit him­self to a counter-claim for defama­tion (es­pe­cially be­cause the lat­ter was a crim­i­nal of­fence). A counter-claim is ad­mis­si­ble only if the diplo­matic agent was the ini­tia­tor of pro­ceed­ings; he be­ing, for ex­am­ple, merely a wit­ness or ex­pert is not enough.

René Värk is Lec­turer of Pub­lic In­ter­na­tional Law and Di­rec­tor for Aca­demic Af­fairs at the In­sti­tute of Law, Univer­sity of Tartu; Vis­it­ing Lec­turer of Diplo­matic and Con­sular Law at the Es­to­nian School of Diplo­macy; Tu­tor at the Diplo­matic Coun­cil in Ox­ford, United King­dom. He is a graduate of the In­sti­tute of Law (2000, LL.B., magna cum laude) and Stockholm Univer­sity (2001, LL.M.). Cur­rently, he is a doc­toral stu­dent at the Fac­ulty of Law, Univer­sity of Tartu. He is a mem­ber of the Martens So­ci­ety and Amer­i­can So­ci­ety of In­ter­na­tional Law. His main field of re­search is diplo­matic and con­sular law, use of force and in­ter­na­tional hu­man­i­tar­ian law.

Saudi Ara­bian Walid Juf­fali, who rep­re­sents Saint Lucia on the e In­ter­na­tional Mar­itime Or­ga­ni­za­tion, is pic­tured here with Christina Estrada who has filed for di­vorce and a claim of part of his £4 bil­lion for­tune. How­ever, his diplo­matic im­mu­nity pre­vents him from be­ing ex­tra­dited to ap­pear be­fore a court.

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