User:Jose Edmundo Dayot/PIL Module 5

The embassies of Denmark, Finland, Iceland, Norway, and Sweden in a joint compound in Berlin, Germany.

Diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities for both their official and, to a large extent, their personal activities. Consular immunity offers protections similar to diplomatic immunity, but these protections are not as extensive, given the functional differences between consular and diplomatic officers. Every sovereign state is bound to respect the independence of every other state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its territory.

Vienna Convention on Diplomatic Relations (VCDR)

The 1961 Vienna Convention on Diplomatic Relations, signed in Vienna on April 18, 1961 and entered into force on April 24, 1964, codified customary rules on bilateral diplomatic relations between States. Its provisions have largely become part of general international law themselves. With 190 State parties, its application is truly global. It provides a complete framework for the establishment, maintenance, and termination of diplomatic relations on the basis of consent between independent sovereign States and has firmly established itself as a cornerstone of modern international relations.

Functions of a diplomatic mission

1. Representing the sending State in the receiving State;
2. Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;
3. Negotiating with the Government of the receiving State;
4. Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;
5. Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.

Obligations of those enjoying immunities and privileges under the VCDR

1. To respect the laws and regulations of the receiving state;
2. To not interfere with the internal affairs of the State;
3. To use the premises in a manner that is not incompatible with the functions of the mission;
4. Not to practice any professional or commercial activity for profit.

Vienna Convention on Consular Relations (VCCR)

The 1963 Vienna Convention on Consular Relations, signed in Vienna on April 24, 1963 and entered into on force March 19, 1967, form the core of international consular law. The VCCR equally found its origins in the United Nations’ striving for the codification of international law. Contrary to its diplomatic counterpart, agreement had to be found among delegates on a greater number of disputed issues in consular law than had been the case for diplomatic law in 1961. It was therefore not considered to be a pure codification of customary law, although its main provisions have acquired customary status over time, and as of 2014, 177 States have ratified the Convention. The VCCR embodies a general framework of minimum standards on the conduct of consular relations. In addition, it recognizes the validity of other agreements, bilateral or regional, which had been in existence before the VCCR came into force and the conclusion of agreements supplementing, extending, or amplifying provisions of the VCCR. This resulted in a Convention with a broad subject area, which provides an extensive range of tasks for consular agents, ranging from offering assistance and protection to nationals to furthering the development of commercial, economic, cultural, and scientific relations between the sending and receiving States.

Consular functions

1. Protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
2. Furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention;
3. Ascertaining by all lawful means conditions and developments in the commercial, economic, cultural and scientific life of the receiving State, reporting thereon to the Government of the sending State and giving information to persons interested;
4. Issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;
5. Helping and assisting nationals, both individuals and bodies corporate, of the sending State;
6. Acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving State;
7. Safeguarding the interests of nationals, both individuals and bodies corporate, of the sending States in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;
8. Safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons;
9. Subject to the practices and procedures obtaining in the receiving State, representing or arranging appropriate representation for nationals of the sending State before the tribunals and other authorities of the receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the receiving State, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defense of their rights and interests;
10. Transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending State in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving State;
11. Exercising rights of supervision and inspection provided for in the laws and regulations of the sending State in respect of vessels having the nationality of the sending State, and of aircraft registered in that State, and in respect of their crews;
12. Extending assistance to vessels and aircraft, and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers, and, without prejudice to the powers of the authorities of the receiving State, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending State; and
13. Performing any other functions entrusted to a consular post by the sending State which are not prohibited by the laws and regulations of the receiving State or to which no objection is taken by the receiving State or which are referred to in the international agreements in force between the sending State and the receiving State.

Obligations of those enjoying immunities and privileges under the VCCR

1. To respect the laws and regulations of the receiving state;
2. To not interfere with the internal affairs of the State;
3. To use the premises in a mater that is not incompatible with the consular functions;
4. Career consular officers cannot practice any professional or commercial activity for profit.

Diplomatic and consular laws

Basis and rationale for immunity

The special privileges and immunities accorded foreign diplomatic and consular representatives assigned to the United States reflect rules developed among the nations of the world regarding the manner in which civilized international relations must be conducted. The underlying concept is that foreign representatives can carry out their duties effectively only if they are accorded a certain degree of insulation from the application of standard law enforcement practices of the host country.

It should be emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. Where a suit is filed not against the government itself or its officials but against one of its entities, it must be ascertained whether or not the State, as the principal that may ultimately be held liable, has given its consent to be sued. This ascertainment will depend in the first instance on whether the government agency impleaded is incorporated or unincorporated.

Inviolability of the premises or mission; protection of the premises or mission

The receiving State has the obligation to ensure that the rights afforded to the sending State’s consular and diplomatic officials and premises are enjoyed and enforced.

Under the VCDR, the premises of the diplomatic mission are be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission is be immune from search, requisition, attachment or execution.

Pursuant to the VCCR, consular premises are be inviolable. The authorities of the receiving State are not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action. The receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. The consular premises, their furnishings, the property of the consular post and its means of transport are be immune from any form of requisition for purposes of national defense or public utility. If expropriation is necessary for such purposes, all possible steps are taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation are paid to the sending State.

Exemption from dues and taxes

In consonance with the VCDR, the sending State and the head of the mission is exempt from all national, regional, or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than such as represent payment for specific services rendered. The exemption from taxation does not apply to such dues and taxes payable under the law of the receiving State by persons contracting with the sending State or the head of the mission.

On the other hand, the VCCR provides that consular premises and the residence of the career head of consular post of which the sending State or any person acting on its behalf is the owner or lessee are exempt from all national, regional, or municipal dues and taxes whatsoever, other than such as represent payment for specific services rendered.

Inviolability of the person

In the VCDR, 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. The private residence of a diplomatic agent enjoys the same inviolability and protection as the premises of the mission. His papers, correspondence and his property, likewise enjoys inviolability. A diplomatic agent enjoys immunity from the criminal jurisdiction of the receiving State. He also enjoys immunity from its civil and administrative jurisdiction.

The VCCR provides that consular officers are not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. Consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom, save in execution of a judicial decision of final effect. If criminal proceedings are instituted against a 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 in a manner which will hamper the exercise of consular functions as little as possible.

Consular officers and consular employees are not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. However, this does not apply in respect of a civil action either arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel, or aircraft. The receiving State has the duty to treat consular officers with due respect and must take all appropriate steps to prevent any attack on their person, freedom, or dignity.

Waiver of Immunity

Under the VCDR, the immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under may be waived by the sending State. Such waiver must always be express. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction precludes him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings is not held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver is necessary.

Under the VCCR, the sending State may waive, with regard to a member of the consular post, any of the privileges and immunities. The waiver, in all cases, is express, and is communicated to the receiving State in writing, except when the initiation of proceedings by a consular officer or a consular employee in a matter where he might enjoy immunity from jurisdiction precludes him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. Moreover, the waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings is not deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision; in respect of such measures, a separate waiver is necessary.

Freedom of communication

The VCDR states that 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. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions.

Under the VCCR, the receiving State shall permit and protect freedom of communication on the part of the consular post for all official purposes. In communicating with the Government, the diplomatic missions and other consular posts, wherever situated, of the sending State, the consular post may employ all appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and messages in code or cipher. However, the consular post may install and use a wireless transmitter only with the consent of the receiving State. The official correspondence of the consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its functions.