Jurisdictional immunities

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 525-584

525

CHAPTER 8

JURISDICTIONAL IMMUNITIES

In Chapter 7, we examined the international legal bases upon which states assert jurisdic-

tion over persons, property, and transactions by applying their domestic law (in the case

of prescriptive jurisdiction) or law enforcement (in the case of enforcement jurisdiction).

In this chapter, we discuss two distinct but related areas of international law that signif‌i-

cantly curtail the extent to which either form of jurisdiction may be e xercised by a state,

even within its own territory, against foreign state representatives and states themselves:

diplomatic immunities and state immunities.

A. DIPLOMATIC IMMUNITIES

A st ate’s ability to exercise its jurisdiction over foreign diplomats within its territory is

very limited as a result of a number of strong jurisdictional immunities enjoyed by such

diplomats. There is a practical reason for this. Consider the justif‌ication for diplomatic

immunities, as described by the US Supreme Court:

[P]rotecting foreign em issaries has a long history and noble purpose. . . The nee d to pro-

tect diplomats is grounded in our Nation’s important interest in international relations.

As a leading commentator observed in 1844, “it is necessary that nations should treat and

hold intercourse together, in order to promote thei r interests, — to avoid injuring each

othe r, — and to adjust and terminate their d isputes.” E. Vattel, The Law of Nations 452 (J.

Chitty ed. 18 44). This observation is even more true today g iven the global nature of the

economy and the extent to which actions in other parts of t he world affect our own na-

tional securit y. Diplomatic personnel are essential to conduct the international affairs so

crucial to t he well-being of this Nation. In addit ion, in light of the concept of re ciprocity

that governs much of inter national law in this area . . . we have a more parochial reason

to protect foreign diplomats in this country. Doing so ensures that similar protections

will be accorded those that we send abroad to represent the United States, and thus serves

our national interest in protect ing our own citi zens. Recent history is replete wit h at-

tempts, some unfort unately successful, to harass and harm our ambassadors and other

diplomatic off‌icia ls. These underlying purposes combine to make our national interest

in protecting diplomatic person nel powerful indeed.1

1 Boos v Barr y, 485 US 312 at 323 (1988).

526 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

What is the exact scope of these diplomatic immunities? Consider the key provisions

of the Vienna Convention on Diplomatic Relations of 1961,2 which has attracted near

universal ratif‌ication,3 but is also widely regarded as a codif‌ication of long-standing rules

of customary international law. Note that the Vienna Convention on Consular Relations

of 19 63,4 discussed later in these materials, contains similar, albeit somewhat less robust,

protections for consular off‌icials (for example, those who deal with passports and visas).

Vienna Convention on Diplomatic Rel ations, 18 April 1961, 50 0 UNTS 95, in force

24 April 1964

The States Part ies to the present Convention,

Recalling t hat peoples of all nations from ancient times have recognized the status of

diplomatic agents,

Having i n mind the purposes and principles of the Charter of the United Nations

concerning the sovereign equal ity of States, the maintenance of international peace and

security, and the promotion of friendly relations among nations, . . . .

Realizing that the purpose of such privileges and immunities is not to benef‌it indi-

viduals but to ensu re the eff‌icient per formance of the fu nctions of diplomatic missions

as representing States . . . .

Have agreed as follows: . . . .

Article 2

The establishment of diplomatic relations bet ween States, and of permanent diplomatic

missions, takes place by mutual consent.

Article 3

1. The functions of a diplomatic mission consist, inter alia, in:

(a) Representing the sending State in the receiving State;

(b) Protecting in the receiving State the interests of the sending State and of its nationals,

within the limits per mitted by international law;

(c) Negotiating with t he Government of the receiving State;

(d) Ascertaining by all lawful means conditions and developments in the receiving State,

and reporting thereon to the Government of the sending State;

(e) Promoting friend ly relations between the sendin g State and the receiving State, and

developing their economic, cultura l and scientif‌ic relations.

2. Nothing in the present Convention shall be const rued as preventing the perform-

ance of consular functions by a diplomatic mission . . . .

Article 9

1. The receiving State may at any time and without hav ing to explain its dec ision, notify

the sending State that t he head of the mission or any member of the diplomatic st aff of

2 Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95, Can T S 1966 No 29, in force

24 April 1964.

3 189 parties as of July 2013.

4 Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261, Can TS 1974 No 25, in force 19

March 1967 (176 parties as of July 2013).

Chapter 8: Jurisdic tional Immunities 527

the mission is p ersona non grata or that any other member of t he staff of the mi ssion is

not acceptable. In any such case, the sending State shal l, 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 ar riving in the territory of the receiv ing State.

2. If the sending State refuses or fails w ithin a reasonable period to carry out its obli-

gations under paragraph 1 of this Article, the receiving State may refuse to recognize the

person concerned as a member of the mission . . . .

Article 22

1. The premises of the mission shal l be inviolable. The agents of the receiving State may

not enter them, except with t he consent of the head of the mission.

2. The receiving State is under a special duty to take all appropriate steps to protect

the premises of the mission against any i ntrusion or damage and to prevent any disturb-

ance of the peace of the mission or impairment of its dig nity.

3. The premises of the mission, their furnishings and other property thereon and the

means of transport of the mission shall be immune from search, requisition, attachment

or execut ion.

Article 23

1. The sendin g State and t he head of the mission shall be exempt from all nationa l,

regional or municipal dues and t axes in respect of the premises of the m ission, whether

owned or leased, other than such as represent payment for specif‌ic services rendered . . . .

Article 24

The archives and docu ments of the mission shall be inviolable at any time and wherever

they may be . . . .

Article 25

The receiving State shall accord full faci lities for the performance of the functions of the

mission.

Article 26

Subject to its laws and regulations concerning zones entry into which i s prohibited or

regulated for reasons of national security, the receiving State shall ensure to all members

of the mission freedom of movement and travel in its territor y.

Article 27

1. The receiving State shall perm it and protect free communication on the pa rt of the

mission for all off‌icial pur poses. In communicating with the Gover nment 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 t ransmitter only wit h the consent

of the receiving State.

2. The of f‌icial corresponde nce of the mission shal l be inviolable. Of f‌icial correspond-

ence means all correspondence relating to t he mission and its functions.

3. The diplomatic bag shall not be opene d or detained.

. . . 5. The diplomatic courier, who shall be provided with an off‌icial document indicat-

ing his statu s and the number of packages constituti ng the diplomatic bag, shall be pro-