1. Diplomatic/consular immunity and privileges
International Law
Diplomatic/consular immunity and privileges

2. Origin Equality of states – sovereign immunity
Functional approach: States must be able to pursue friendly relations without interference
Communication, collection of information
ICJ. Tehran Hostages case
„the rules of international law, in short, constitute a self-contained regime, which on the one hand, lays down the receiving state’s obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving state to counter any such abuse’

3. Personal immunity - inviolability
Art. 29. 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.
E.g. SC Presidential Statement 6573 (15 September 1998) condemning the murder of nine Iranian diplomats in Afghanistan
BUT: self-defence or protection of human life might justify detention exceptionally
1973. UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents

4. Personal immunities
Diplomatic agent (including diplomatic courier during his mission) is inviolable, may not be arrested or detained
E.g. SC Presidential Statement 6573 (15 September 1998) condemning the murder of nine Iranian diplomats in Afghanistan
Receiving state has to ’take all appropriate steps’ to prevent any attack on the person, freedom or dignity of diplomatic agents
1973. UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents

5. Immunity from criminal jurisdiction of the receiving state
BUT: not from the sending state
Immunity from civil and administrative jurisdiction
Exception: private immovable property
Action relating to succession (inheritance)
Professional or commercial activity exercised in the receiving state outside official function
Special problem: unpaid parking fines
US: withholds 110 per cent of unpaid parking fines and penalties from the state’s foreign aid + requires that members of diplomatic missions hold liability insurance

6. Diplomatic agent cannot be obliged to give evidence as a witness or subpoenaed
Except for civil/administrative cases concerning property, succession, and professional activities
Exemption from
social security provisions,
from all dues and taxes (except for indirect taxes),
from custom duties and inspections (including the personal baggage of the diplomat) if it contains articles for official use or items of personal use
Unless there is serious ground to presume that it contains other articles but the inspection must be conducted in the presence of a diplomatic agent

7. Immunities and privileges enjoyed by non-diplomats
Members of the family of the diplomatic agent forming part of his household (unless nationals of the receiving state)
UK practice: includes spouses, minor children (under 18), children over 18 not in permanent paid employment, persons fulfilling social duties of hostess to the diplomatic agent, parent of the diplomat living with him and not engaged in permanent employment
Members of the administrative and technical staff (if not nationals of the receiving state)
BUT : immunity from jurisdiction only extends to acts performed in the course of official duties

8. Duration and scope of diplomatic immunity
Start: the moment the person enters the territory of the receiving state on proceeding to take up his post, or – if already on the territory – from the moment of official notification by the ministry
Transit: immunity remains if the person is in transit between his home state and a third state to which he has been posted
BUT: not in a third state! (i.e. that is neither the receiving state, nor a state of transit between his state and the receiving state)
End: when the diplomat leaves the country after the termination of his mission or on expiry of a reasonable period in which to do so
No continuing immunity with regard to acts performed outside offical function!
E.g Car accident of former ambassador of Papua New Guinea

9. Waiver of immunity Possible but highly unusual Only express waivers
Only the sending state can waive immunity of the diplomatic agent, not the diplomat himself!
E.g Zambia waived the immunity of its official at its London embassy suspected of drugs offence

10. Inviolability of premises (including archives and documents)
Absolute rule
Agents of the receiving state can only enter with the consent of the mission
Uncertain scenario: fire, natural disaster?
Special duty of the receiving state to protect the mission premises from intrusion or damage or ’impairment of its dignity’
1979. Tehran hostages case
1999. US bombs the Chinese embassy in Belgrade, ensuing riots and attacks on the US embassy in Beijing
US paid a compensation of $28 million, China $2.87 million

11. Break in diplomatic relations – what about the premises?
Art. 45(a): ”the receiving state must… respect and protect the premises of the mission”
1984. Shooting from the Libyan embassy in London
UK breaks diplomatic relations, searches the building in the presence of a Saudi Arabian diplomat
Also searches the personnel citing self-defence
Abandoned diplomatic premises
Diplomatic asylum?

12. Diplomatic bag
Free communication includes official correspondence with the use of diplomatic couriers and messages in code and cipher (wireless transmitter requires the consent of the receiving state)
Diplomatic bag ”must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use”
1984. Kidnapping of former Nigerian minister in a crate
Inviolable, cannot be opened or detained
Size? Soviet lorries on the Soviet border
Search in case of suspicions of abuse: Convention forbids it
UK: electronic screening is acceptable
Reservations made by certain states (e.g. Libya, Kuwait, Saudi Arabia)

13. Consular privileges and immunities
Restricted, functional immunity since they have few political functions
May not be arrested or detained except in the case of a grave crime and following a decision by the competent judicial authority
If criminal proceedings are instituted, the consul must appear before the competent authorities
Consular premises are inviolable, may not be entered without consent, must be protected
Consular bag: may be requested to be opened if there is serious reason that it contains unofficial items. If the request is denied, the bag shall be returned.

14. The curious case of Devyani Khobragade
Indian Deputy Consul-General in New York
December 2014: accused of submitting false documents to US authorities in order obtain a work visa for her housekeeper/maid
Allegedly handcuffed and strip-searched
Indian government retaliates
Refusal to meet delegations
Security barricades around the American embassy in Delhi removed
Ms. Khobragade moved to the Indian Permanent Mission to the UN