Jurisdictional Immunities

• Author: John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld
• Pages: 513-570



CHAPTER 8

Jurisdictional Immunities

In Chapter , we examined the international legal bases upon which states assert jurisdiction

over persons, conduct, and events by applying their domestic law (in the case of prescriptive

jurisdiction) or state power (in the case of enforcement jurisdiction). In this chapter, we dis-

cuss three distinct but related areas of international law that signicantly curtail the extent

to which either form of jurisdiction may be exercised by a state, even within its own territory,

against foreign state representatives, international organizations, and states themselves: dip-

lomatic immunities, immunities of international organizations, and state immunities.

A. DIPLOMATIC IMMUNITIES

A state’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 justication for diplomatic immunities, as

described by the US Supreme Court:

Protecting foreign emissaries has a long history and noble purpose. . . . The need to pro-

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

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

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

other, — and to adjust and terminate their disputes.” E. Vattel, The Law of Nations 

(J. Chitty ed. ). This observation is even more true today given the global nature of

the economy and the extent to which actions in other parts of the world aect our own

national security. Diplomatic personnel are essential to conduct the international aairs

so crucial to the well-being of this Nation. In addition, in light of the concept of reci-

procity that governs much of international law in this area . . . we have a more parochial

reason to protect foreign diplomats in this country. Doing so ensures that similar protec-

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

serves our national interest in protecting our own citizens. Recent history is replete with

attempts, some unfortunately successful, to harass and harm our ambassadors and other

diplomatic ocials. These underlying purposes combine to make our national interest

in protecting diplomatic personnel powerful indeed.

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

the Vienna Convention on Diplomatic Relations of , which has attracted near universal

 Boos v Barry,  US  at  ().

  April ,  UNTS , Can TS  No , in force  April .

 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

ratication but is also widely regarded as a codication of long-standing rules of customary

international law. Note that the Vienna Convention on Consular Relations of  contains

similar, albeit somewhat less robust, protections for consular ocials (for example, those

who deal with passports and visas).

Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95, in force 24 April 1964

The States Parties to the present Convention,

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

diplomatic agents,

Having in mind the purposes and principles of the Charter of the United Nations

concerning the sovereign equality 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 benet indi-

viduals but to ensure the ecient performance of the functions of diplomatic missions

as representing States, . . .

Have agreed as follows: . . .

Article 

The establishment of diplomatic relations between States, and of permanent diplomatic

missions, takes place by mutual consent.

Article 

. 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 permitted by international law;

(c) Negotiating with the 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 friendly relations between the sending State and the receiving State, and

developing their economic, cultural and scientic relations.

. Nothing in the present Convention shall be construed as preventing the perform-

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

Article 

. 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 sta

of the mission is persona non grata or that any other member of the sta 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.

. If the sending State refuses or fails within a reasonable period to carry out its obli-

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

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

  states parties since June .

  April ,  UNTS , Can TS  No , in force  March  ( states parties).

Chapter : Jur isdictional Immunities 

Article 

. The premises of the mission shall 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 disturb-

ance 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 shall be immune from search, requisition, attach-

ment or execution.

Article 

. The sending State and the head of the mission shall be 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 specic services rendered. . . .

Ar ticle 

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

they may be. . . .

Artic le 

The receiving State shall accord full facilities for the performance of the functions of the

mission.

Art icle 

Subject to its laws and regulations concerning zones entry into which is 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 territory.

Articl e 

. The receiving State shall permit and protect free communication on the part of

the mission for all ocial 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.

. T he ocial correspondence of the mission shall be inviolable. Ocial correspond-

ence means all correspondence relating to the mission and its functions.

. The diplomatic bag shall not be opened or detained. . . .

. T he diplomatic courier, who shall be provided with an ocial document indicating

his status and the number of packages constituting the diplomatic bag, shall be protected

by the receiving State in the performance of his functions. He shall enjoy personal inviol-

ability and shall not be liable to any form of arrest or detention. . . .

Arti cle 

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.

Article 

. The private residence of a diplomatic agent shall enjoy the same inviolability and

protection as the premises of the mission.