Diplomatic privileges and immunities(Vienna Convention on Diplomatic Relations 1961)(Somalia 29 Mar 1968 ) Meaning and importance of diplomacy? diplomacy is whereby a state conducts relations with other state(s).

What is the role of the convention in relation to diplomacy? The Convention plays a crucial role by regulating the establishment of permanent bilateral diplomatic missions to represent the interests of the state and the protection of its nationals, and the privileges and immunities accorded to missions and their staff.

IMMUNITIES FROM NATIONAL JURISDICTION States are recognised as having authority over people, things and events within their own territory and therefore may exercise jurisdiction over them. However, international law does recognise that certain people, things and events are entitled to immunity from the enforcement of local law: (a) foreign states and heads of foreign states (including public ships of foreign states); (b) armed forces of foreign states; (c) diplomatic representatives and consuls of foreign states; (d) international organisations

State immunity: At an international level all sovereigns(states) were considered equal and independent. It would be inconsistent with this principle if one sovereign could exercise authority over another sovereign. There fore, state officials are immune from local jurisdiction. “UN Convention on the Jurisdictional Immunities of States and Their Property 2 December 2004”

Which entities enjoy immunity?? Article 2(1)(b) of the UN Convention on the jurisdictional states defines a state to include: ‘1. Its various organs of government.’ That is to say, all branches of government including the legislature and judicial organs. 2. Constituent units of a federal state or political subdivisions of the state, which are entitled to perform acts in the exercise of the sovereign authority, --. 3. Agencies of the state or other entities, to the extent that they are entitled to perform acts of sovereign authority of the state

4. Representatives of the state acting in that capacity 4.Representatives of the state acting in that capacity.’ This covers all natural persons authorised to represent a state, in its various manifestations, in respect of acts done by them on behalf of the state, and includes the head of state acting in his official capacity

Exceptions to immunity Consent A state can always waive its immunity by consenting to proceedings, and do so in advance. But a contractual clause that the law of another state will govern a contract does not amount to consent to the jurisdiction of that state’s courts.

Commercial transactions At the heart of the modern restrictive approach is the principle that a state is not immune in respect of its commercial transactions

Contracts of employment Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State -- which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State.

Absolute and restrictive immunity Absolute immunity: The traditional doctrine of state immunity was absolute in that immunity attached to all actions of foreign states.

Restrictive Theory: Under a restrictive view of immunity a distinction could be drawn between the public acts of states and private acts (trading and commercial acts. it would only be applicable to the public acts

Foreign armed forces Members of the armed forces usually enjoy limited immunities from local jurisdiction while in the territory of a foreign state. Obviously such immunities only apply where the forces are present with the consent of the host state.

Diplomatic immunity:

The establishment of diplomatic relations and permanent diplomatic missions The establishment of diplomatic relations and permanent diplomatic missions requires the consent of both states (Article 2). They must be sovereign states and must recognise each other as such. Recognition is usually soon followed by the establishment of diplomatic relations, and sometimes the establishment of relations constitutes the act of recognition.

Self-explanatory terms of diplomatic ties? The two states are known by the self- explanatory terms sending state and receiving state. The term diplomatic mission is generic. Most are called embassies, but some have titles such as Libyan People’s Bureau. As between the fifty-three Commonwealth states, their diplomatic missions are, for historical reasons called high commissions, and their ambassadors are high commissioners.

The functions of a diplomatic mission The main functions of a diplomatic mission are described in Article 3(1): representing the sending state, protecting its interests and those of its nationals, negotiating with the receiving state, reporting what goes on in the receiving state and promoting friendly relations, providing the local population with information about the sending state.

The immunity of diplomatic mission The premises of the diplomatic mission, which include the embassy buildings and compound together with the residence of the head of the mission, are inviolable by virtue of Article 22 of the Vienna Convention. That means they are inaccessible to agents of the receiving state without the consent of the head of the mission.

US Diplomatic and Consular Staff in Iran case (1980). On 4 November 1979, following the revolution in Iran, a number of Iranian nationals seized the US Embassy and took the personnel inside hostage. Although the ICJ found that the initial hostage taking could not be attributed to the Iranian government, it had been aware of the threat posed to the embassy and had the means available to provide adequate protection. The court therefore found that Iran’s failure to prevent the seizure of the embassy amounted to a breach of its international obligations.

Diplomatic personnel The Vienna Convention provides for varying degrees of immunity which are dependent on the status of the person concerned. There are five main categories of person each attracting differing degrees of immunity: • the head of the mission (the ambassador or charge d’affaires); • the members of the diplomatic:(advisors) • the members of the administrative and technical staff(staff(registry, secretarial, communications and security staff); • the members of the service staff;(drivers, kitchen staff, porters and gardeners) • private servants( those employed by sending state).

The head of the mission and members of the diplomatic staff The head of the mission and the members of the diplomatic staff are also referred to as diplomatic agents, and they receive the highest degree of immunity. Article 29 of the Vienna Convention provides that the person of a diplomatic agent shall be inviolable. He or she shall not be subject to any form of arrest or detention, and the receiving state has a duty to ensure his or her protection.

Contin---- Article 31 further provides that diplomatic agents enjoy complete immunity from the criminal jurisdiction of the receiving state and extensive immunity from civil and administrative jurisdiction. These immunities extend to the families of diplomatic agents if they are not nationals of the receiving state.

the members of the administrative and technical staff; Members of the administrative and technical staff and their families, provided they are not nationals of the receiving state, enjoy similar immunities to diplomatic agents apart from the fact that their immunity from civil and administrative jurisdiction does not extend to acts performed outside the course of their duties.

the members of the service staff Members of the service staff who are not nationals of the receiving state enjoy immunity in respect of acts performed in the course of their duties.

Private servants Private servants who are not nationals of the receiving state only enjoy exemption from local taxation, unless there is specific agreement which extends their immunities

Notification of Diplomatic members to the receiving state?? The foreign ministry of the receiving state must be notified, in advance where possible, of all appointments and of the arrivals and departures of members of the mission. The engagement and discharge of local staff must also be notified. Notifications should clearly indicate whether the person is a diplomatic agent, a member of the A&T staff or service staff by describing the post (e.g.first secretary, communications officer, driver). Members of the family and private servants must also be notified.

Persona non grata Article 9 confers on the receiving state the unqualified power to require the removal of any member of the mission. For a diplomatic agent the receiving state notifies the sending state that he is persona non grata, and for all other cases that he is ‘not acceptable’. The notification can be done at any time, even before the person’s arrival in the receiving state.

What is the obligation of sending state? The sending state is then obliged either to recall the person or to terminate his functions with the mission. If sending state refuses or fails to remove him within a reasonable time, the receiving state can refuse to recognise him as a member of the mission so that he will no longer enjoy any privileges or immunities

Termination of privileges and immunities: When the functions of an entitled person have come to an end (i.e. he has ceased to be a member of staff of the mission), his privileges and immunities ‘normally’ cease on his final departure from the receiving state (Article 39(1) and (2)). He is allowed a ‘reasonable period’ in which to leave, during which the privileges and immunities continue, even in the case of an armed conflict.

Duties of the mission to the receiving state Several duties of the mission are set out in Article 41. First, and most importantly, all persons enjoying privileges and immunities have a duty to respect the laws and regulations of the receiving state. Secondly, members of a mission must not interfere in the internal affairs of the receiving state.

Thirdly, all official business with the receiving state must be conducted with or through the foreign ministry of the receiving state, or such other ministry as may be agreed. Lastly, the premises of the mission must not be used in any manner incompatible with the functions of the mission, such as for commercial purposes.

Special missions A special mission is ‘a temporary mission, representing the state, which is sent by one state to another state with the consent of the latter for the purpose of dealing with it on specific questions or performing in relation to it a specific task’. Many special missions are sent to negotiate a bilateral or multilateral treaty

Consular immunity The primary function of consulates, vice consulates, and consular posts is to represent and deal with nationals of the sending state. The law relating to consular relations is contained in the Vienna Convention on Consular Relations 1963 which entered into force in 1967.

Consular officials do not, however, enjoy complete immunity from the local criminal jurisdiction. Although they are not liable to arrest or detention, save in the case of a grave crime, they can be subjected to criminal proceedings. Their immunity from civil and administrative jurisdiction only extends to acts performed in the exercise of consular functions.

What about their family members?? Members of the consular staff’s family do not enjoy significant immunities

International organizations: International organisations operate in particular states and will often require the same immunities and privileges as diplomatic missions if they are to carry out their functions effectively. The position of the UN is dealt with in the Convention on the Privileges and Immunities of the UN 1946.