From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 04 March 2021
- Diplomatic immunity — Diplomatic missions — Diplomatic relations — Detention
(p. 232) Immunity from Jurisdiction
The immunity of an envoy from the criminal jurisdiction of the receiving State was in the earlier literature regarded as indistinguishable from his personal inviolability. At the period when inviolability was first clearly established as a rule of customary international law it would have been unusual for criminal proceedings to take place without prior arrest and detention of the accused. Immunity from civil and administrative jurisdiction, which is less obviously coercive in character, was the next to become established of the basic rules of diplomatic law.
As already mentioned in the context of Article 29, it was during the sixteenth century common practice for ambassadors as well as secret agents to be used as agents provocateurs. Several notorious cases occurred where the ambassador of one monarch was found participating in treasonable conspiracies against the sovereign to whose court he was accredited. The earliest writers on diplomatic law doubted whether an ambassador should retain his immunity from criminal jurisdiction under such circumstances. Gentilis, the first Professor of Civil Law at Oxford University, and other distinguished civilians advised Queen Elizabeth I of England that John Lesley, Bishop of Ross, the representative of the captive Mary Queen of Scots, had forfeited his immunity by conspiring against the sovereign to whom he was accredited and could be tried. But Queen Elizabeth did not respond to this advice. After a short period of imprisonment the Bishop of Ross was expelled. Two other foreign ambassadors to the Queen later suspected of similar activities—the Spanish Ambassador Mendoza and the French Ambassador d’Aubéspine—were likewise never brought to trial. Mendoza was expelled and d’Aubéspine continued to act as ambassador after a request for his recall was ignored.1
(p. 233) The writers were initially not convinced by these precedents. Gentilis in his De Legationibus2 argued that although an ambassador remained immune from charges of conspiracy, if a crime has actually been committed he could be tried by the receiving State. Hotman in L’Ambassadeur wrote that if an appeal for clemency was made to the sending sovereign and failed, the ambassador could be tried both for political and for ordinary crimes. In practice, however, no ambassador in the seventeenth century or subsequently was brought to trial. Grotius followed the actual practice in stating that the exercise of criminal jurisdiction against a diplomat was not permitted—the receiving State retained a right of self-defence against a diplomat who used force, but this was not to be equated with criminal jurisdiction.3 A hundred years later Bynkershoek wrote in De Foro Legatorum that there were so many cases of envoys who had misbehaved in various ways without being punished ‘that we struggle under the weight of numbers’. Sometimes the offences were hushed up, sometimes the envoys were sent back for punishment by the sending sovereign, but most usually they were simply told to get out.4 From that time the rule of immunity from criminal jurisdiction continued virtually unchallenged until its incorporation into the Vienna Convention.
The immunity of the ambassador from civil jurisdiction was established later and with greater difficulty. The earliest writers on diplomatic law, Hotman, Gentilis, and Grotius, prescribed only that the ambassador’s residence (then synonymous with mission premises) might not be entered nor his movable property seized by way of execution. During the sixteenth and seventeenth centuries envoys were expected for reasons of prestige to live in a grand and expensive style and they were not then given by the sending State pay or allowances to provide for this. Consequently unless they had unlimited private means they were very likely to run into debt in the receiving State, to engage in trade there, or even to turn their customs privileges to improper profit. Embarrassing incidents began to occur in a number of States which—because of increasing separation of the courts from the executive—receiving governments no longer had the power to prevent. Some rulers at this period took the position that immunity from civil jurisdiction related only to acts performed in the exercise of the envoy’s functions. The Netherlands in 1679, Denmark, and England found it necessary to enact national legislation to provide for the inviolability and immunity of ambassadors in their territory.5
The Diplomatic Privileges Act 17086 was passed in order to appease the Tsar of Russia whose ambassador had been dragged from his coach and detained for several hours in custody at the instance of his irate creditors. The creditors were brought to trial before the Queen’s Bench, but the judges were not prepared to say that the acts complained of constituted any offence under English law. The Act of Anne accordingly not only made null and void any civil process against an ambassador or his servants but also made any (p. 234) breach of the rule a criminal offence. A copy of the new Act, with explanation and apologies, was duly tendered to ‘his Czarish Majesty Emperor of Great Russia’. The Act went beyond the customary law in creating a criminal offence—though in practice prosecutions never took place—and in giving immunity to all servants and in respect of all kinds of process. On the other hand it made no mention of the inviolability of mission premises or of the immunity of an ambassador from criminal jurisdiction—perhaps because institution of criminal proceedings was at that time always under the control of the Crown.7 Although the Diplomatic Privileges Act was even at the time of its enactment not an accurate or comprehensive statement of customary international law it was often described as declaratory of the law of nations, and cases involving diplomats were decided by English courts for 250 years in accordance with its terms. Reliance on the statute by these courts precluded reference to the limitations on immunity from jurisdiction which began to be applied in the practice of other States.
By the time that Bynkershoek wrote De Foro Legatorum in 1721 the general immunity of a diplomatic agent from civil jurisdiction was a well established rule. Subsequent debate among writers, in national courts and during the preparation of Article 31.1 of the Vienna Convention, concerned only the special exceptions to the rule and the extent to which subordinate staff of a diplomatic mission and the families of members of the mission were entitled to immunity to the same extent as diplomats themselves. Italian courts in the early years of the twentieth century applied in some cases a wide exception relating to private acts of a diplomat, but this trend was finally reversed by the Court of Cassation in 1940.8 In 1969 the Supreme Court of Chile held that: ‘The fact that the Republic of China has not yet ratified the Vienna Convention does not prevent the application of Article 31 in our country because it is a principle of international law, common and customary, that this provision has crystallized, being only an expression of it.’9
Modern practice: scope of immunity from jurisdiction
The International Court of Justice in the Hostages Case laid emphasis on the importance of immunity from criminal jurisdiction. Noting that Iranian judicial authorities and the Ministry of Foreign Affairs had threatened to have some of the US hostages submitted for trial before a court or other body, they said:
These threats may at present merely be acts in contemplation. But the Court considers it necessary here and now to stress that, if the intention to submit the hostages to any form of criminal trial or investigation were to be put into effect, that would constitute a grave breach by Iran of its obligations under Article 31, paragraph 1 of the 1961 Vienna Convention.10
References(p. 235) Immunity from civil and administrative jurisdiction covers not only direct claims against a diplomatic agent or his property but also family matters such as divorce or other matrimonial proceedings, proceedings to protect a member of the family of a diplomat by a care order or make him or her a ward of court11 and—unless they are within the specific exceptions set out in Article 31.1—such matters as bankruptcy, company law, or administration of estates.
A question which arises from time to time and is not answered with absolute clarity by the Convention is whether Article 31.1 of the Convention precludes the receiving State from holding an inquest following the death of a diplomat. The practice which had earlier developed in the United Kingdom was that an inquest was not held under these circumstances. In 1913 the Foreign Office Legal Adviser was reluctant to say that as a matter of international law: ‘the death of a diplomat is in no circumstances a subject for inquisition by the coroner. In the case of the body of a diplomat being found in circumstances which indicate foul play it is obviously in the interests of justice that an inquiry should be held and evidence taken on oath.’12 Under Article 31.1 of the Convention, the holding of an inquest may be regarded as an exercise of civil or administrative jurisdiction over the person of the deceased diplomat. Although his functions have come to an end with his death, his immunities under Article 39.2 of the Convention subsist for a ‘reasonable period’. It is usual for a diplomatic mission to prefer that no inquest should take place, and it appears to be general practice that inquests or public inquiries into the death of diplomats do not take place unless the mission consents. Following the sudden death in 2009 of the Ambassador of the Czech Republic to the UK, at the request of the Governments of the Czech Republic and the UK and the family of the Ambassador, the coroner agreed not to proceed with an inquest.13 An enquiry may of course be held following the repatriation of the body of a diplomat to the sending State.
Modern practice: diplomatic immunity and State immunity
The justifications for diplomatic immunity and for state immunity are different, as are now to an increasing extent the detailed rules and the exceptions in the two areas. For this reason (as is apparent from many parts of this Commentary) it is increasingly common for a plaintiff to sue both the ambassador or another member of a diplomatic mission and the relevant sending State. Provided that the defendant is correctly impleaded, given the facts and the nature of the law, there is no reason why this should not be done. Where, for example, a contract is concluded by ‘the Embassy of X’ which has no legal personality, it may be unclear whether the proper defendant to an action to enforce the contract is ‘the State of X’ or ‘the Ambassador of X’, and it may be necessary to bring proceedings against References(p. 236) both in order to clarify the issue.14 In the case of HM The Queen in Right of Canada v Edelson and Others,15 the Supreme Court of Israel in 2008 correctly held that a lease for the residence of the Ambassador of Canada had been concluded by Canada, so that jurisdiction should be determined under the rules of State and not diplomatic immunity. In the case of Bah v Libyan Embassy,16 on the other hand, where a dismissed employee of the embassy claimed for severance pay and unlawfully withheld wages, the Industrial Court in Botswana failed to distinguish clearly between State and diplomatic immunity, but in effect decided correctly on the basis of rules of State immunity that the claim could proceed.
There are often reasons in local law why premises or property must be held in the name of the ambassador even if the true beneficial owner is the sending State, and again it is in no way improper to sue both. Conduct by a diplomat on official instructions will normally be attributable to the sending State, but it may well be highly desirable to join the diplomat when bringing civil proceedings. This is particularly so when the diplomat is no longer in his post so that his continuing immunity from jurisdiction is limited to acts performed in the exercise of his functions.17
Modern practice: effect of immunity on insurance
In the United Kingdom it was established by the case of Dickinson v Del Solar18 that an insurer cannot take advantage of the entitlement of a diplomatic client to immunity either on the ground that a waiver of diplomatic immunity amounted to a breach of a condition in the insurance contract or on the ground that the diplomat was under no legal liability giving rise to an obligation to indemnify him. Lord Hewart CJ stressed that: ‘Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction.’ In order to avoid any similar argument from insurers, however, the Foreign Office sought and obtained from all authorized motor insurers doing business in the United Kingdom an assurance that they would not attempt to rely on the privileged position of their diplomatic clients. In 1958 diplomatic missions in London were reminded of their legal obligation to take out motor insurance before driving and were informed that all authorized insurers (listed in an Annex) had given the above assurance. Revised and extended circulars were sent to insurers in 1972 and in 1976 in the light of additional requirements imposed by the Road Traffic Act 1972. These also told diplomats that on request any authorized insurers would endorse a diplomat’s policy as follows:
References(p. 237) Notwithstanding that the insured is or may be entitled under the Diplomatic Privileges Act 1964 to refuse to submit to the jurisdiction of the Courts in connection with any claim against him, it is hereby declared and agreed that the Insurer will not call upon the Insured to so refuse.
It was made clear that the provision would not fetter the discretion of a head of mission to maintain or to waive the immunity of a member of the mission in any specific case. On the whole these arrangements have meant that claims in respect of accidents involving diplomats can be settled by or between insurance companies. The Foreign and Commonwealth Office Minister responding in Parliament in 1985 to a question on compensation to individuals for losses which they cannot recover because the defendants have diplomatic immunity, said:
Arrangements already exist with authorised motor insurers to ensure that claims against diplomats in respect of traffic accidents are settled in the usual way. These cause few problems in practice.19
Where, however, a diplomat denies liability and refuses either to seek a waiver of his immunity from his sending State or to allow his insurer to settle or compromise a claim against him, a plaintiff will still have difficulty in obtaining redress. Other possible remedies where immunity bars a claim are discussed more generally below in the context of Article 31.4.
In the United States, the Diplomatic Relations Act 197820 in section 6 required diplomatic missions, their members, and families to have and maintain liability insurance against risks arising from their operation of motor vehicles, vessels, and aircraft. Section 7 of the Act permits civil suits directly against insurers. The Department of State published regulations made under the Act specifying the insurance cover required from diplomatic missions and persons entitled to diplomatic immunity and the evidence of insurance which must be produced before the Department will endorse applications for diplomatic automobile licence plates or exemptions from registration fees.21 The insurance must cover third party liability for bodily injury including death, property damage, and other cover required by the jurisdiction where the vehicle, vessel, or aircraft is principally garaged, berthed, or kept. The regulations prohibit policy terms under which an insurer might shelter behind the immunity of the insured or plead that he is an indispensable party to any legal proceedings, and the insured is ‘expected to respond to reasonable requests from the insurer for co-operation’. These statutory requirements were later extended and compliance by diplomats more effectively ensured by the Foreign Missions Amendments Act 1983.22
Canadian practice, as set out by the Department of External Affairs in 1966, is to ensure by administrative measures that diplomats comply with local requirements on motor insurance and that insurers cannot under any circumstances use immunity ‘as a factor in the settlement of claims for damages or in answer to a legal action arising out of an accident’. If an insurer attempts to make use of the client’s immunity, the Department press for a waiver to facilitate normal settlement of a claim.23
(p. 238) Belgian courts have also held in 1970 in the case of Bonne and Company X v Company Y24 that under the Belgian Law on Compulsory Motor Vehicle Insurance a plaintiff could bring a direct action for indemnity for damage and other loss following an accident alleged to have been caused by the driver of a vehicle belonging to the Embassy of Madagascar. There was no breach of diplomatic immunity in such proceedings because even though they involved a finding of negligence against the driver, this finding did not involve any constraint against the person or property of a foreign diplomatic agent. By agreeing to provide insurance cover for embassy staff the insurers had by implication waived the right to take advantage of their entitlement to immunity. This case, however, also illustrates the potential difficulty where a diplomat is unwilling to allow a finding or an assumption of responsibility for an accident.
A less satisfactory outcome occurred in Ghana in 1976 in the case of Armon and another v Katz25 where the plaintiff instead of bringing proceedings against the insurers of a car belonging to the First Secretary of the Israeli Embassy sued the diplomat and his son (who was driving at the time of the accident). The plaintiff argued that the insuring of the vehicle amounted to a waiver of diplomatic immunity. In the alternative she argued that the insurance was a ‘commercial activity outside his functions’ so that by virtue of Article 31.1(c) the diplomat was not entitled to immunity. Unsurprisingly the court rejected both these arguments. The defendants continued to rely on diplomatic immunity and they made no attempt to bring in the insurers under third party procedure, so that the plaintiff was apparently left without a remedy even though the diplomat was insured.
Motoring offences and claims
In practice most of the difficulties suffered as a result of diplomatic immunity by the general public in the receiving State arise from driving and parking by members of diplomatic missions. The largest category of serious offences involving diplomats, according to records published by the Foreign and Commonwealth Office in their 1985 Review of the Vienna Convention,26 was driving under the influence of drink or drugs—though the Review stressed that the numbers were comparatively small in percentage terms. Eleven years later, the position of driving under the influence of drink in the league table of serious offences by diplomats remained unchanged.27 For diplomats, of course, driving under the influence of drink may be regarded as an occupational hazard. Parking offences constituted, in many crowded capitals, overwhelmingly the most extensive example of abuse of diplomatic immunity—and the measures which have been taken in response have already been described in the context of Article 9. The largest number of civil claims against diplomats arise from motor traffic offences. Insistence on diplomats carrying third party insurance has greatly reduced the number of cases where individuals are barred by diplomatic immunity from securing redress—but the problems cannot be entirely eliminated while there is no compulsory adjudication of disputed questions of fact or of liability. The US scheme for the withholding of driving privileges from persistent violators References(p. 239) of traffic rules was described above in the context of Article 25. Alternative methods of redress where potential claims are barred by diplomatic immunity are considered more generally in the context of Article 31.4 below.
It is interesting to note that at the Vienna Conference a proposal was made by The Netherlands that the courts of the receiving State should have jurisdiction over claims for damages arising from motor traffic accidents unless a direct right of action lay under the law of that State against an insurance company.28 Such an exception to immunity was clearly not based on previous customary law, and many delegations argued that it was undesirable in principle. The UK representative, for example, pointed out that whereas the other exceptions to immunity concerned activities which even if not in themselves undesirable were clearly apart from the ordinary performance of diplomatic functions, driving would normally be a part of life and work in the receiving State. The Netherlands amendment was rejected by the Conference, but the fact that The Netherlands did not ratify the Vienna Convention until 1984 was in large part due to the strength of feeling in that country on the question of motor accident claims.
It is conceivable that if the Conference had taken place a few years later The Netherlands’ amendment would have met with a warmer welcome from delegates. The negotiators of the Vienna Convention on Consular Relations took care to make it clear, in Article 43(2)(b), that consuls could be sued in respect of motor traffic accidents, and several more recent agreements relating to privileges and immunities of international organizations have included exceptions to immunity in respect of motoring offences and claims for damages arising from motor accidents.29 In practice, however, those States most concerned to contain abuse of diplomatic immunity have been able to ensure mainly through insurance schemes such as those described above that aggrieved plaintiffs are seldom deprived of a remedy by immunity from civil jurisdiction in regard to motor accidents.
Exception for private immovable property
The exception from diplomatic immunity relating to real property situated within the territory of the receiving State was accepted by writers as early as Grotius,30 but in the twentieth century it has been subjected to some criticism. In many jurisdictions, including the United Kingdom, there is no evidence that it was ever applied by the courts. Examination of the legislative and judicial material shows that there was even in those States which applied the exception diversity in the views taken of its rationale and scope. This in part explains why Article 31.1(a) of the Vienna Convention contains several ambiguities which even on examination of the travaux préparatoires are difficult to resolve.
Bynkershoek stated that it was everywhere accepted that proceedings in rem could be brought against ambassadors in respect of immovable property in the receiving State. He justified the exception first by reference to the overriding necessity that immovable property should be administered by the courts of the territory where it was situated and (p. 240) secondly on the basis that immunity for an envoy’s property should be limited to what was essential to him for the fulfilment of his mission.31
Vattel also gives a double justification for this exception in his classic statement:
Tous les fonds de terre, tous les biens immeubles relèvent de la jurisdiction du pays…quel qu’en soit le propriétaire. Pourrait-on les en soustraire par cela seul que le maître sera envoyé en qualité d’ambassadeur; ils ne sont pas attachés a sa personne, de manière qu’ils puissent être reputés hors du territoire avec elle.…Au reste, on comprendra aisément que si l’ambassadeur loge dans une maison qui lui appartient en propre, cette maison est exceptée de la règle, comme servant actuellement a son usage.32
The exception appeared in a wide form in both the 1895 and the 1929 versions of the Règlement sur les immunités diplomatiques formulated by the Institute of International Law, which stated: ‘L’immunité de jurisdiction ne peut etre invoquée…en matière d’actions réelles, y compris les actions possessoires, se rapportant a une chose, meuble ou immeuble, qui se trouve sur le territoire.’33 It was also in the texts of the 1925 Project of the American Institute of International Law and the 1927 Project of the International Commission of American Jurists.34 Although it did not feature in the 1928 Havana Convention on Diplomatic Officers—which omitted all exceptions to diplomatic immunity—it was instead incorporated in the Code of Private International law (the Bustamante Code) signed also at Havana on the same date.35 This suggests that the rationale was the strong jurisdictional link between immovable property and the courts of the territory where it lies.
Not all civil law States applied the exception—for example, French courts never did so.36 Nor did English courts, constrained as they were by the terms of the Diplomatic Privileges Act 1708 which did not mention it. French and English writers criticized the elevation of the exception to the status of a rule of international law. Sir Cecil Hurst concluded that although the courts of the receiving State were the most suitable to determine cases of this nature, to permit an exception so as to give them jurisdiction would be contrary to the basic principle of diplomatic immunity.37
There was no discussion at the Vienna Conference of the meaning of the expression ‘real action’, but the sense emerges from study of national legislation and cases. The essence is that the relief sought in the action is either a declaration of title to the property, an order for sale by authority of the court, or an order for possession. A real action is equivalent to an action in rem, in the sense which this action has in jurisdictions which (unlike England) permit actions in rem in respect of immovable property where title or possession is in (p. 241) issue. It does not include actions for recovery of rent or performance of other obligations deriving from ownership or possession of immovable property.
Colombian legislation, for example, refers to ‘actions in rem, including possessory actions, which relate to movable or immovable property situated within the territory’.38 Under the law in Czechoslovakia the exception referred to ‘cases involving immovable property owned by them and situated in the Czechoslovak Republic, or their rights in such immovable property belonging to other persons, with the exception of right to the payment of rent, arising from the lease of such immovable property’.39 Legislation in some States, however, such as India, Austria, and Switzerland, set out a wider exception which was not confined to real actions but included any action ‘relating’ to private immovable property.40
The Supreme Court of Czechoslovakia in the Deposit (Land in Czechoslovakia) Case41 in 1936 held that an action to recover money paid as deposit for the purchase of an estate, which a diplomat was defending as successor to the property, was not covered by the exception, so that the defendant could rely on his immunity. By contrast, in the case of Agostini v De Antueno,42 where proceedings were brought in New York to recover possession of premises leased to a person entitled to the immunities of a diplomatic agent, the court assumed jurisdiction, saying:
The instant matter is a special proceeding to recover the possession of real property, and the legislature of the State of New York has seen fit to invest this court with the unique power, authority and jurisdiction in this type of special proceeding…The jurisdiction of this court is basically in rem and not in personam.
In other cases before national courts the exception is described as relating to actions in rem, but without this concept being further analysed.43
A District Court of The Netherlands in 1980 considered the purpose and scope of Article 31.1(a) in the Deputy Registrar Case.44 In proceedings against the Deputy Registrar of the International Court of Justice in The Hague, who was entitled by an agreement between the Court and The Netherlands to full diplomatic immunity, the District Court took the Vienna Convention—even though at that time The Netherlands had not yet ratified it—as the appropriate standard. The Netherlands court held that Article 31.1(a) of the Vienna Convention, which was declaratory of customary international law, was intended to ensure that rights in rem to immovable property should be enforced in the State where the property was situated. It therefore followed that an application to a court for an eviction order, the purpose of which was to regain full control over a property that had been let to a diplomat in the receiving State, fell within the ambit of Article 31.1(a).
In the case of Hildebrand v Champagne45 in 1984 the Court of Cassation of Belgium considered whether the exception for real actions relating to private immovable property applied to a claim for rental charges and costs alleged to be owing under a lease of a private References(p. 242) apartment. The lower court assumed jurisdiction on the ground that diplomatic immunity applied only to acts performed in the exercise of diplomatic functions and that Article 31.1(a) was a particular example of this. The Court of Cassation allowed the appeal, however, on the basis that the summons did not concern a real action, and stated that the judgment of the lower court violated Article 31 of the Convention.
The expression ‘real action relating to private immovable property situated in the territory of the receiving State’ is particularly likely to cause difficulty in Anglo-American jurisdictions. The old distinction in English law (now abolished) between ‘real’ and ‘personal’ actions did not correspond to what is meant in Article 31.1(a). The distinction between actions in rem and actions in personam cannot be applied precisely either since actions in rem are generally brought in order to establish title to a vessel. The common law distinction between realty and personalty is also unhelpful in that leasehold property is personalty, but an action against a diplomat for possession of property which he holds under lease may be a ‘real action’ under Article 31.1(a). An attempt was made during the passage of the UK Diplomatic Privileges Bill in 1964 to define the term. The proposed definition moved by amendment was ‘an action relating to land or to any right or title to land’, and land was to be defined by reference to the Law of Property Act 1925.46 It was explained by the Minister that this would result in widening the exceptions to immunity set out in Article 31, and the amendment was withdrawn. In 1983, in the case of Intpro Properties Ltd v Sauvel and others,47 which is discussed more fully below, the English Court of Appeal correctly concluded ‘that in so far as real property in England is concerned such an action is one in which the ownership or possession, as distinct from mere use, of such property is in issue’.
In 1984 the Family Court in Australia in De Andrade v De Andrade48 considered whether an application by a wife in the context of divorce proceedings for a declaration that her husband held a home in Queensland purchased in his name and let to tenants on trust for the parties as tenants in common in equal shares might be a ‘real action relating to private immovable property’. The judge held however that the wife had apparently made no financial contribution to the acquisition of this property and that the real purpose of her claim was ‘to achieve an alteration of property interests and obtain some of the property now in the legal ownership of the husband’. The application was essentially connected with the marriage and was not a ‘real action’ within the meaning of Article 31.1(a).
The Italian Court of Cassation in 1987 in the case of Largueche v Tancredi Feni49 also said that a real action relating to immovable property could only refer to cases concerning the ownership or possession of property. But in an action seeking vacation of property leased by a diplomat they held that because under Italian law the rights in question ‘are of a personal nature and do not involve a real action’, they had no jurisdiction. The court did not apparently consider any cases from other jurisdictions where the words ‘real action’ References(p. 243) have been construed. The same approach had been taken by the Examining Magistrate of Rome in the earlier case of Aziz v Caruzzi.50
Is a diplomat’s principal private residence within the exception?
A point of some difficulty is whether the words in Article 31.1(a) ‘unless he holds it on behalf of the receiving State for the purposes of the mission’ apply to the principal private residence of a diplomatic agent. No clear consensus on this practical point emerges from the previous customary law. If the rationale of the exception regarding private immovable property was that immunity should extend only to property necessary to enable a diplomat to carry out his functions in tranquillity, the conclusion would follow that all diplomatic staff as well as the ambassador should be immune from actions claiming title or possession of their principal private residence. For example, the Regulations of the Philippines follow this approach in providing: ‘If an officer holds, in a private country, real or personal property in a personal as distinguished from an official capacity, such property may be subject to the local laws’.51 The alternative approach was that the reason for the exception was the pre-eminence of the lex rei sitae and the difficulty of using any other forum than the courts of the receiving State to determine disputes over title or possession. On this basis the exception should apply to any immovable property belonging to a diplomat. Legislative provisions in several States followed this approach and applied the exception to all immovable property including residences.52
None of the cases before the Vienna Convention draw a clear distinction between a principal private residence and other kinds of private immovable property in the receiving State. In Montwid-Biallozor v Ivaldi53 in 1925 a Polish court held ‘that municipal courts have jurisdiction in regard to the private immovable property of a public minister, except in regard to such immovable property as is devoted to the official use of the embassy or legation’. The diplomat was held to be immune on the basis that the action, which related to a lease of a furnished flat, was one in personam, and the court did not address the question whether his residence was in fact ‘devoted to the official use of the embassy or legation’. In the Afghan Minister (Consular Activities) Case54 in 1932 a German court said ‘that the immunity of an extraterritorial person from the jurisdiction of the receiving State was without effect in an action in rem concerning real property, owned by such person and situated in the territory of the receiving State’ and made no qualification for residences. In 1950 a New York court in the case of Agostini v De Antueno,55 in which action for recovery of premises in Manhattan was brought against a UN official entitled by statute to the immunities of a diplomatic agent, held that it had jurisdiction. The court said: ‘There appears to be no doubt that real property held by diplomatic officers in a foreign State, and not pertaining to their diplomatic status, is subject to local laws.’ References(p. 244) It could be argued that premises used by a diplomat as his residence pertained to his diplomatic status, but the court did not take this point.
The exception to immunity where a claim is for title or possession of immovable property was thoroughly considered by the Supreme Restitution Court for Berlin in 1959 in four related cases, Tietz and others v People’s Republic of Bulgaria, Weinmann v Republic of Latvia, Bennett and Ball v People’s Republic of Hungary, and Cassirer and Geheeb v Japan.56 The court proceeded from the principle that:
there is not in existence (and certainly not in Germany) any generally accepted rule of international law which prevents a court, sitting in a particular country, either from hearing or from passing upon the merits of a claim which, if sustained, may adversely affect the legal ownership of and title to real property located within the same country, even where a foreign sovereign is, or allegedly is, the adverse owner of the real property, and even when the foreign sovereign asserts that the real property in his possession is immune either from any such inquiry or from the consequences of an adverse judgment.57
Examining whether mission premises might form a special case, the court found that the decisive question was the use of the premises ‘for the conduct of diplomatic affairs between sovereigns’, but they did not consider how wide that description might go, since they were concerned with premises whose use for mission purposes had long been discontinued. In the later case of Jurisdiction over Yugoslav Military Mission (Germany) Case58 the German Federal Constitutional Court, in an action for rectification of the land register in regard to land used for the Military Mission of Yugoslavia, also took the view that the exercise of its jurisdiction was permissible provided that there would be no interference with the performance of diplomatic functions.
From the records of the International Law Commission and the Vienna Conference it is clear that the diplomatic agent holding premises of the mission in his own name is entitled to immunity from local jurisdiction in regard to these premises. The Rapporteur’s original draft of the provision did not contain the qualifying words ‘unless he holds it on behalf of the sending State for the purposes of the mission’. In the International Law Commission in 1957 Mr Tunkin proposed to add the words ‘and representing a source of income’. He said that the amendment was ‘designed to cover cases where immovable property used for the purposes of a mission was held in the name of the head of a mission, because local law did not permit it to be acquired by a foreign State’. Other members were sympathetic to the objective but not to the form of words, while the Rapporteur opposed the amendment on the ground that ‘the rule that the private immovable property of diplomatic agents was subject to local jurisdiction admitted of no exception’. Sir Gerald Fitzmaurice proposed the form of words ‘unless he holds it on behalf of the sending State for the purposes of the mission’, making clear that the purpose of the addition was to cover cases where mission premises as a matter of form and in accordance with local law were held in the name of the head of mission.59
The subsequent history of the exceptions in regard to private immovable property in Article 31.1(a) and in Article 34(b)—where identical wording is used—is set out in References(p. 245) greater detail below in the context of Article 34. No firm conclusion can be drawn as to whether the International Law Commission or the Vienna Conference intended the term ‘private immovable property’ to include the principal private residence of a diplomatic agent. But whereas general principles and subsequent state practice support the grant of tax exemption on such a residence, this is not so in the case of immunity from jurisdiction. Article 31.3 as well as Article 30 clearly protects the residences of diplomatic agents from any measure of execution. It would therefore seem to be the better view, and one more consistent with previous practice, that the courts of the receiving State are entitled to exercise jurisdiction over real actions against diplomatic agents affecting such residences, and thus to determine disputes affecting immovable property within their territory. This position derives support from the decision of The Netherlands District Court of The Hague in the Deputy Registrar Case60 described above. The court there held that immunity could not be claimed by the Deputy Registrar even though the property in question was used as his residence. They said that:
The only function which the dwelling serves with regard to his work at the Registry of the International Court is to provide him and his wife with somewhere to live which is relatively close to his work; this is not altered by the fact that the International Court regards this as useful, or by the fact that P’s aforesaid library is housed in the building.
In reaching their conclusion the District Court relied also on Article 16(1)(a) of the European Community Convention on Jurisdiction and the Enforcement of Judgments (‘Brussels Convention’), which excludes any possibility of proceedings in the sending State of a diplomatic agent in relation to rights in rem to his immovable property situated in the receiving State.
It should be noted that although the diplomatic agent is clearly immune from local jurisdiction in respect of the premises of the mission if he holds them in his own name, the same is not necessarily true of the sending State if the premises are in the name of that State. This problem is discussed in the context of Article 22 above.
In the case of Arab Republic of Syria v Arab Republic of Egypt61 in 1982 the Supreme Court of Brazil missed an opportunity to determine the scope of the words ‘unless he holds it on behalf of the sending State for the purposes of the mission’. The case arose in consequence of a dispute between Syria and Brazil over premises in Rio de Janeiro which originally formed the Embassy of Syria, and which on the merger of Egypt and Syria to form the United Arab Republic became the Embassy of the UAR. On the dissolution of the UAR in 1961 the Embassy was in charge of an Egyptian diplomat who refused to return the premises to Syria when it sought to reclaim them on the basis of being the original owner registered in the Land Registry. Instead the premises were used for the purposes of the reestablished Egyptian Embassy and later as Egyptian consular premises. In proceedings brought by the Syrian Ambassador against the Egyptian Ambassador and Consul for possession of the premises, Syria argued that the case was a real action relating to immovable property situated in the territory of the receiving State and held unlawfully by the defendants, so that Article 31.1(a) of the Vienna Convention on Diplomatic Relations precluded immunity from jurisdiction. The Egyptian Ambassador did not enter an appearance but maintained through the diplomatic channel that the dispute was References(p. 246) between two sovereign States and that Egypt was entitled to immunity from the jurisdiction of Brazilian courts. In submissions made on behalf of the Government of Brazil by the Deputy Attorney-General it was argued that the real defendant was the State of Egypt. This was accepted by the Supreme Court who then held by a majority that they had no jurisdiction—but on grounds of sovereign rather than diplomatic immunity, so that they made no decision on the Article 31.1(a) argument.
The English Court of Appeal considered the scope of Article 31.1(a) in 1983 in the case of Intpro Properties Ltd v Sauvel and others.62 The proceedings arose from lease of a house to the French Government for occupation by a diplomatic agent and his family. Dry rot developed and the landlord sought access for contractors to carry out remedial work, but this was denied. Proceedings were begun against the diplomat and his wife, and the French Government were later joined as defendants to an action for breach of covenants to repair and to grant access. The claim was pursued later only against the French Government and turned mainly on construction of the State Immunity Act 1978, which provided an exception to the immunity of a State as respects obligations arising out of its interest in, possession, or use of immovable property. There was, however, a saving under section 16 of the 1978 Act for any immunity conferred by the Diplomatic Privileges Act 1964 (which gives effect in the United Kingdom to the Vienna Convention) and also for ‘proceedings concerning a State’s title to or its possession of property used for the purposes of a diplomatic mission’. The Court of Appeal held that the fact that the premises were used as a private residence by a diplomatic agent, and for carrying out social obligations, was not sufficient to meet the test of their being ‘used for the purposes of a diplomatic mission’. In coming to this view they drew support from Articles 1 and 31.1(a) of the Vienna Convention on Diplomatic Relations. They also noted that it would not have been possible for the plaintiff to obtain an injunction or an order for specific performance of the relevant covenants, since the premises were used as the residence of a diplomat, and they concluded that: ‘Consequently this inviolability should not be allowed to operate as a bar to proceedings otherwise permitted by the statute when the relief sought is merely damages for breach of covenant.’
A somewhat similar case was decided in 1999 by the South African High Court, Portion 20 of Plot 15 Athol (Pty) Ltd v Rodrigues.63 The Court held that a property purchased in Johannesburg by the Ambassador of Angola as a residence was purchased as a private investment and was not occupied for the purposes of the mission (which was situated along with the Ambassador’s principal residence in Pretoria), so that an eviction order could be granted on the ground that the obligations under the purchase agreement had not been fulfilled.
The 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property64 provides in Article 13 an exception to state immunity for proceedings which relate to the determination of:
References(p. 247) Although this provision is, under Article 3, without prejudice to privileges and immunities enjoyed by a State under international law in relation to the exercise of the functions of its diplomatic missions, there is no special saving as regards jurisdiction (as opposed to execution) in respect of property used or intended for use in the performance of the functions of the diplomatic mission of that State. This tends to confirm the emerging view that the forum State may exercise jurisdiction—over diplomatic agents as well as over sending States—to determine questions of title to or possession of land situated within that State.
Exception for private involvement in succession
The exception set out in Article 31.1(b)—‘an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State’—was not clearly established in customary international law before the Vienna Convention. There is no mention of such an exception in the words of the earlier writers on diplomatic law, and no case where a diplomat was in the absence of any waiver made subject to local jurisdiction in relation to private matters of succession. In the Deposit (Land in Czechoslovakia) Case65 in 1936 the plaintiff had given a sum of money as deposit for the purchase of an estate. On the death of the intending vendor the estate passed to a diplomat in Prague and the sale did not materialize. In an action for recovery of the deposit the Supreme Court said, upholding the diplomat’s immunity: ‘The fact that he is sued as the legal successor of a Czechoslovak subject from whom he inherited real property in Czechoslovak territory, is irrelevant for the decision of the question whether the Czechoslovak courts have jurisdiction under Article 9 of the Code.’ In 1955 the Administrative Court of Austria in the case of Re Nidjam, deceased,66 held that a diplomat who was part heir to the estate of a person who died domiciled in Austria was under a legal obligation to supply for estate duty purposes information regarding the value of the estate left in The Netherlands. They said that by virtue of his diplomatic status he was exempt from a duty to supply information only to the extent that he was not subject to Austrian law, and that within limits set out he was subject to Austrian revenue law. This case provides very limited authority for the existence of a general exception in regard to succession matters.
The 1925 Project of the American Institute of International Law and the 1927 Project of the International Commission of American Jurists67 list among exceptions to immunity ‘actions connected with his capacity as heir or legatee of an estate settled on the territory of the country to which the diplomatic agent is accredited’. From this source it was adopted into the draft articles submitted by the Rapporteur to the International Law Commission.68 Although criticized on the ground that it had not appeared in more authoritative previous codifications of diplomatic Law and was not declaratory of existing customary law,69 it survived to become part of the text of Article 31 because it was References(p. 248) justified on grounds of principle. Actions relating to succession to an estate are likely to require all interested parties to be joined in order to be dealt with properly, and in a case where several persons were involved there would be no alternative forum, since it would be unlikely that the courts of the diplomat’s sending State could assume jurisdiction.
Exceptions (a) and (b) in Article 31.1 thus have in common that they seek to prevent a situation wherein a plaintiff is deprived by diplomatic immunity of any possible forum. These are not the only examples of this kind. For example, if criminal proceedings against a diplomat are barred by his immunity it will only rarely be possible or practicable to institute proceedings in the sending State (although other remedies are considered below). Proceedings to make the child of a diplomat a ward of court, or to divorce a diplomat may not be capable of being heard in any other jurisdiction. If permission for an inquest on the body of a diplomat is not given, it is unlikely that any alternative inquiry elsewhere could satisfy the interest of the receiving State in ascertaining the cause of a death occurring on its territory. But in all these cases proceedings could not take place without impeding the diplomat in the exercise of his functions or impairing the dignity of the mission. Succession proceedings by contrast are very unlikely to have such an effect, and so the interest of the receiving State in asserting jurisdiction over all persons concerned with a succession is accepted as paramount.
The words ‘as a private person and not on behalf of the sending State’ were added at the Vienna Conference as a result of an amendment proposed by Spain.70 Their purpose is to make clear that immunity applies in the relatively frequent case where a person dies leaving money to another State—usually his home State—or to a person or charitable body in that State, and a diplomat acting in an official capacity receives the money for transmission to his sending State. A diplomat may also become involved in his official capacity in a succession if the deceased left no heirs either by will or intestacy, and the sending State therefore claims the estate as bona vacantia.
Exception for private, professional, or commercial activity
The earliest discussion of the problem of the merchant ambassador was by Bynkershoek. He criticized the recent practice of certain Dutch courts and argued that although the ambassador who traded retained his immunity from suit, any real or personal property which he held entirely in his private or commercial character might be distrained.71 Vattel followed Bynkershoek in maintaining that the ambassador was not liable to personal suit by reason of engaging in trade, but that it was permissible to distrain property held by him by virtue of any commercial functions.72 While the exception remained in the narrow terms formulated by Bynkershoek and Vattel it could apply only in those States whose legal systems had a form of process which could be begun by distraint of goods without personal suit. Under English law, for example, this was in general not possible, and it was (p. 249) therefore held in the case of Magdalena Steam Navigation Company v Martin73 that the exception had no place in English law.
It was sometimes suggested that section 5 of the Diplomatic Privileges Act 170874 reflected an exception for subordinate diplomatic and other staff of a mission who engaged in commerce. Section 5 was as follows: ‘Provided and be it declared that no merchant or other trader whatsoever within the description of any of the statutes against bankrupts who hath or shall put himself into the service of any such ambassador or public minister shall have or take any manner of benefit by this Act’. It is, however, probable that this was intended to prevent a merchant or trader from taking dishonest advantage of the Act by entering into the service of an ambassador rather than to remove immunity from bona fide servants who engaged in trading activities.75 Two English cases made clear that the ambassador himself did not lose his entitlement to immunity by engaging in commercial activities. In Taylor v Best76 in 1854 Jarvis CJ, in spite of strong argument based on the writings of Vattel, held:
that, if the privilege does attach, it is not, in the case of an ambassador or public minister, forfeited by the party’s engaging in trade, as it would, by virtue of the proviso in the 7 Anne c. XII s. 5, in the case of an ambassador’s servant. If an ambassador or minister, during his residence in this country, violates the character in which he is accredited to our court by engaging in commercial transaction, that may raise a question between the government of this country and that of the country by which he is sent; but he does not thereby lose the general privilege which the law of nations has conferred upon persons filling that high character.
In The Magdalena Steam Navigation Company v Martin77 in 1859 Lord Campbell CJ while acknowledging that the position was different in countries ‘where there may be a citation by seizure of goods’, said of English law that: ‘It certainly has not hitherto been expressly decided that a public minister duly accorded to the Queen by a foreign State is privileged from all liability to be sued here in civil actions; but we think that this follows from well established principles and we give judgment for the defendant.’
Later academic writers during the nineteenth century stated the exception from immunity in wider terms than those given by Bynkershoek and Vattel. Pradier-Fodéré maintained that a diplomatic agent who engaged in commercial activities incompatible with his character ought to be liable to suit in respect of those activities, though not to detention.78 The draft Code drawn up by the Institute of International Law in both 1895 and 1929 versions provided that immunity from jurisdiction could not be invoked by a diplomat in relation to a professional activity outside his official functions.79 This appears to be the first mention of professional rather than commercial functions. The Harvard Draft Convention in Article 24 stated:
A receiving State may refuse to accord the privileges and immunities provided for in this Convention to a member of a mission or to a member of his family who engages in a business or who References(p. 250) practises a profession within its territory, other than that of the mission, with respect to acts done in connection with that other business or profession.
The Commentary, however, questioned whether this was a true reflection of international practice.80 Other authorities including Genet81 and Hurst82 also denied that the exception was established in international law. In the Case of Tchitchérine83 proceedings were brought against a counsellor to the Russian Embassy in Paris who provided funds to establish a newspaper and contracted to supply it with material relating to Russia and Poland. At first instance immunity was denied on the ground that this was a commercial transaction into which the diplomat had entered in his private capacity. The Court of Appeal reversed this decision, though it is not clear whether this was on the ground that the exception was not established in international law or on the ground that the transaction in issue did not fall within the scope of the exception.
Several States, however, provided expressly in their national legislation for an exception to immunity in the case of private commercial activities. The law of India, for instance, provided for an exception where the diplomat ‘by himself or another, trades within the local limits of the jurisdiction of the court’. The law of Norway stated that ‘if he engages in trade or business, he shall be subject in respect thereto to the Constitution and the laws of the country’. Swiss law related the exception to ‘a lucrative activity outside his official functions’. The law of South Africa referred to ‘any transaction entered into by him in his private and personal capacity for the purposes of trade or in the exercise of any profession or calling’.84
The exception was added to the text of the draft articles of the International Law Commission in 1957 as a result of an amendment proposed by Mr Verdross.85 It was opposed there by Mr François, and the United States in their comments on the 1957 draft articles maintained that it was not part of existing international law.86
At the Vienna Conference discussion of the purpose of the exception took place in the context of discussion of the new provision introduced at the Conference which became Article 42 of the Convention: ‘A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.’ Delegates to the Conference saw Article 31.1(c) and Article 42 as being very closely linked. Colombia in fact proposed deletion of Article 31.1(c) on the ground that it could be construed as implying authority for the diplomat to engage in professional or commercial functions. It withdrew this proposal, however, when it was pointed out that Article 31.1(c) would apply also to members of the family of a diplomatic agent and to administrative, technical, and service staff who were not within the scope of the prohibition in Article 42 and who might without any impropriety engage in professional or commercial activities separate from their diplomatic mission duties. It was also pointed out by delegates to the Conference that certain professional activities might be practised by the diplomatic agent himself without any infringement of Article 42—for example, literary, artistic, or References(p. 251) academic work which even if paid was not undertaken primarily ‘for personal profit’. The UK delegate suggested that ‘there was no reason to prevent an embassy chaplain from ministering to the spiritual needs or attending to the physical health of persons outside the diplomatic mission’.87
Article 31.1(c) is also essential in two other kinds of situation. The first is where the sending and receiving States agree to overlook, in the case of a particular diplomat, the prohibition set out in Article 42. This does occasionally happen where an individual is unwilling to give up his business or professional activities but is accepted as being unusually well qualified to hold a particular diplomatic post. For example, when Mr William Wilson was nominated by President Reagan as US Ambassador to the Holy See in 1984, it was explained to the Senate Foreign Affairs Committee that exceptionally he had been permitted to retain the positions he held in two US commercial companies.88 The second situation is where the diplomatic agent engages in professional or commercial activities in defiance of Article 42, or without being aware of its constraints. In this case Article 31.1(c) is a more effective protection for claimants or creditors in the receiving State than the possibility of declaring the diplomat persona non grata.
Meaning of ‘any professional or commercial activity’
It was made clear during the drafting of Article 31.1(c) that the exclusion did not apply to a single act of commerce but to a continuous activity.89 Ordinary contracts incidental to life in the receiving State, such as purchase of goods, medical, legal or educational services, or agreements to rent accommodation do not constitute ‘commercial activities’. Thus in the case of Tabion v Mufti90 in 1996 the US Court of Appeals held that a contract between a Philippine national and a diplomat for performance of domestic services was not within the scope of the exception. The court took account of a statement of interest filed by the State Department in the matter, in which the Department concluded that ‘commercial activity’ in Article 31.1(c) ‘focuses on the pursuit of trade or business activity; it does not encompass contractual relationships for goods and services incidental to the daily life of the diplomat and family in the receiving State’. The court held that: ‘Day-to-day living services such as dry cleaning or domestic help were not meant to be treated as outside a diplomat’s official functions. Because these services are incidental to daily life, diplomats are to be immune from disputes arising out of them.’
The reasoning in Tabion v Mufti was followed by the English High Court in Wokuri v Kassam.91 This case arose from a claim by a chef and housekeeper to the Deputy High Commissioner at the Uganda High Commission in London, Ms Kassam, that she had not been provided with a copy of her contract of employment and had not been paid her full salary. The High Court did not accept that Ms Kassam had not been entitled to immunity by virtue of Article 31.1(c). But when the case was heard in 2012, Ms Kassam had left the UK on transfer to the Uganda Embassy in Rome, so that her continuing immunity References(p. 252) depended on the terms of Article 39.2 of the Vienna Convention. The case is discussed further below under Article 39.2.
The English Court of Appeal in the case of Reyes v Al-Malki92 also found the reasoning in Tabion v Mufti persuasive and supported by commentators, and declined to disregard it on the ground that the US court had given ‘substantial deference’ to a State Department statement of interest on the interpretation of ‘commercial activity’. Lord Dyson, Master of the Rolls, in giving the lead judgment, pointed out that the ordinary meaning of the words was consistent with the scheme of the Vienna Convention as a whole and the principle underlying diplomatic immunity: ‘If a diplomatic agent does what he is sent to the receiving State to do, then the activities which are incidental to his life as a diplomatic agent in the receiving State are covered by the immunity.’ There was a clear link with Article 34(d) excluding from tax exemption taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State and also with Article 42 prohibiting diplomats from practising for personal profit professional or commercial activity in the receiving State. It was clear from the travaux préparatoires of the Vienna Convention that the participants did not consider that contracts of employment for the provision of domestic services at a mission were included within the term ‘professional and commercial activities’. Such an employment contract was incidental to the daily life of a diplomatic agent and enabled him to perform his functions.
It was also argued on behalf of the plaintiff in Reyes v Al-Malki that because the UK Government accepted that the plaintiffs had been the victims of trafficking as defined by international agreements,93 this transformed their engagement into a commercial activity so as to be caught by the exception to immunity in Article 31.1(c). The Court held that the fact that a diplomat derived economic benefit from employing an employee below the market rate did not imply that he was engaged in a commercial activity, or an activity outside his official functions. The international agreements did not address the question of diplomatic immunity which was the subject matter of the 1961 Vienna Convention.
Article 4 of the European Convention on Human Rights and Fundamental Freedoms required Parties to penalize and prosecute acts maintaining a person in a situation of forced or compulsory labour, but this was not a superior rule of international law which entailed an exception to the principle of diplomatic immunity. In the case of Jones v Saudi Arabia94 the House of Lords had held that even a claim of torture which was accepted as ius cogens did not take precedence over a rule of State immunity, and there was no material distinction in this context between diplomatic and State immunity. Article 6 of the European Convention on Human Rights which required Parties to grant access to a court must be construed in accordance with the decision of the European Court of Human Rights in Fogarty v UK95 where it was held that the right was not absolute and could be limited by proportionate restrictions reflecting generally accepted rules of international law on State immunity. This reasoning applied also to the rules on References(p. 253) diplomatic immunity. On the true interpretation of Article 31.1(c) diplomatic immunity was not excluded in relation to claims for compensation by domestic workers who had been trafficked.
Paid employment outside the mission or provision of professional services for remuneration by a member of the mission or a member of his family is, on the other hand, within the exception. The spouse of a member of the mission who works as a doctor, teacher, or administrator in the receiving State may therefore be sued in respect of these activities. The clear exception from immunity for such activities has in many States overcome an important obstacle to permitting spouses and other members of the families of diplomats from independent work in the receiving State. Between some States there are specific agreements underlining the absence of immunity, or a specific assurance may be a condition of granting permission to a spouse to take up employment—but between Parties to the Vienna Convention such a precaution is not in fact legally necessary.96
More difficult is the question of the diplomat’s personal assets if these are invested in the receiving State. Cahier97 takes the view that administration by the diplomat of his personal assets would not come within the exception to immunity. The Family Court of Australia held in De Andrade v De Andrade in 1984 that neither the purchase of a house as an investment nor the collection of rent from tenants was a ‘commercial activity’.98 But investment—whether direct or portfolio—is normally a continuous activity carried out for profit. While the courts might accept that a single personal loan was not covered by the exception, they would be less likely to take the same view of investment in shares or in business enterprises within the receiving State. National courts would be particularly anxious not to permit diplomatic immunity to be raised as an obstacle to bankruptcy or winding-up proceedings where the interests of a number of people would be involved. US regulations do not permit US diplomats overseas to invest in local companies,99 and such restrictions may well be more general—which would explain the absence of authority on this point.
Meaning of ‘outside his official functions’
In the case of Portugal v Goncalves100 the plaintiff Mr Goncalves obtained a default judgment for payment for a translation provided at the request of the Director of the Commercial Office of Portugal, part of Portugal’s diplomatic mission to Belgium. Before the Civil Court of Brussels he argued that the commissioning of a translation was not among the functions of a diplomatic mission as set out in Article 3 of the Convention, and that Article 31.1(c) therefore applied. Although the suit was against the Portuguese State, the court addressed the question of immunity on the basis of the Vienna Convention, and they held that: ‘Article 3 sets out the general framework for diplomatic functions and must be interpreted as also covering all other incidental actions which are indispensable for the performance of those general functions listed in the Article.’ The plaintiff had not References(p. 254) established that commissioning a translation was outside Article 3, and Article 31.1(c) therefore had no application. A similarly broad approach to diplomatic functions was taken by the English High Court in the case of Propend Finance Property v Sing and the Commissioner of the Australian Federal Police101 in holding that a member of the diplomatic staff of the Australian High Commission in London carrying out police liaison activities (which formed part of his official duties) was not acting outside his official diplomatic functions. The judge held that ‘the tasks which he carried out on behalf of the Australian Federal Police were a very function of his particular diplomatic role’.
While the courts in the above two cases were clearly correct in concluding that Article 31.1(c) had no application, it may be open to question whether they were correct in accepting that the expression ‘outside his official functions’ in Article 31.1(c) should be interpreted by reference to Article 3 of the Vienna Convention. As already explained in the context of Article 3, there may sometimes be difficulties in determining the limits of diplomatic functions and the boundaries between diplomatic and commercial and diplomatic and consular functions. It is suggested that these issues should be determined by consultation between sending and receiving States. A diplomat who is instructed to undertake an activity, such as export promotion or assistance to businessmen, which could be argued to be commercial, or an activity, such as service of legal documents, which might be regarded as consular rather than diplomatic, is acting within his official functions and should be entitled without question to personal diplomatic immunity. If the receiving State takes the general view that certain of these activities are not properly diplomatic, or are consular rather than diplomatic, this may require resolution, and might be relevant to the question of whether premises are entitled to the status of ‘premises of the mission’ as defined in Article 1(i). This should not, however, expose a diplomat carrying out instructions—unless these clearly exceeded the bounds of proper activity—to the risk of personal civil suit. Where litigation has been undertaken, however, it may not be practicable for the question to be resolved by the sending and receiving States and the court may have to form its own view.102
The words ‘relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions’ should properly be read as a whole. This approach was correctly taken by the US Court of Appeals in Tabion v Mufti, described above, when they pointed out that to give a broader meaning to ‘commercial activity’ would ignore the relevance of the remainder of the phrase—‘outside his official functions’. Also important to determining the scope of the exception are the words ‘in the receiving State’. An attempt in the case of Skidmore Energy, Inc et al v KPMG et al103 to bring proceedings in Texas against the Ambassador of Saudi Arabia to the United States in respect of investments by the ambassador in a company incorporated in Liechtenstein which carried out activities in Morocco was dismissed by the court for lack of jurisdiction.
References(p. 255) Procedure when immunity is raised
Article 31 lays down no procedural provisions as to when or how diplomatic immunity should be pleaded or established in national courts. These matters are left to the law of each State Party. The majority of cases where proceedings against a person entitled to diplomatic immunity are contemplated never come to trial because the plaintiff or his advisers learn of the defendant’s status and find that his government are unwilling to waive his immunity. Informal guidance may be sought from the Ministry of Foreign Affairs in order to check a claim that the defendant is entitled to diplomatic immunity. Article 10 of the Convention requires the Ministry of Foreign Affairs of the receiving State to be notified of appointments of all persons entitled to privileges and immunities by virtue of their connection with a diplomatic mission and of their departure or the termination of their appointment or employment. The Ministry is therefore uniquely well placed to state the relevant facts. If difficult questions of law arise, however, these are likely to be determined by the courts, although under many legal systems there are arrangements under which the executive may offer guidance to the courts on the relevant international law.
In the United Kingdom informal advice may be sought from the Foreign and Commonwealth Office. If legal proceedings are contemplated, an approach may be made by the solicitors for both parties acting jointly. If only one solicitor requests information, the reply will be copied as a matter of course to the other party or his advisers. Any formal request for a waiver of immunity by the sending State will be dealt with at ministerial level. If legal proceedings are begun the defendant may ignore them in reliance on his immunity—though there is then some risk that the court may proceed without being aware of his diplomatic status. In the alternative the defendant may enter a conditional appearance under protest, pleading diplomatic immunity. The court will then request from the Foreign and Commonwealth Office a certificate under section 4 of the Diplomatic Privileges Act 1964.104 This provides that:
If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.
An example of an affirmative certificate under section 4 was that issued in the case of Empson v Smith105 which stated:
By the direction of Her Majesty’s Principal Secretary of State for Commonwealth Relations it is hereby certified under section 4 of the Diplomatic Privileges Act 1964 that Mr C. B. Smith was on [October 1] a member of the administrative and technical staff of the diplomatic mission of Canada in the United Kingdom, that he has since that date continued to be a member of the said administrative and technical staff and he is now such a member.
An example of a negative certificate was that provided in the case of R v Governor of Pentonville Prison, ex parte Teja,106 stating:
Under the authority of Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs conferred on me in accordance with the provisions of section 4 of the Diplomatic Privileges References(p. 256) Act 1964, I, Alexander Lees Mayall, Head of Protocol and Conference Department of the Foreign and Commonwealth Office, hereby certify that Dr. Jayanti Dharma Teja has not been accredited to the Court of St. James as a diplomatic agent of the Costa Rican Government.
Certificates under the Diplomatic Privileges Act are rigorously confined to questions of fact within the special knowledge of the Foreign and Commonwealth Office, such as notifications of appointments of members of diplomatic missions. Questions of law such as whether the defendant is permanently resident in the United Kingdom are left to the courts, though in appropriate cases facts relevant to these questions might be covered in a certificate. If the diplomatic status of the defendant comes to the attention of the court without having been expressly pleaded, the appropriate course is for the proceedings to be adjourned while a certificate is sought from the Foreign and Commonwealth Office.
Material relating to the establishment of diplomatic status in a number of jurisdictions, particularly in the United States, set out in Whiteman,107 shows that notification to the relevant Ministry of Foreign Affairs, and the furnishing of a statement to the courts by that Ministry, are general preconditions to establishment of a claim to diplomatic immunity from jurisdiction. In the United States section 5 of the Diplomatic Relations Act 1978108 now provides that:
Any action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 3(b) or 4 of this Act, or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.
Motion would be by the defendant or his government, while suggestion or certification would come from the US Government. Unlike executive certificates in the United Kingdom, certifications in the United States may cover applicable law as well as relevant facts. In 1985 the State Department in a Circular Note to chiefs of mission in Washington explained that while the Department would continue to provide certifications where appropriate on the request of the embassy concerned, they would not do so where the request came from a court or an attorney representing a party in legal proceedings without first advising the embassy and providing it with an opportunity to consider whether it wished to waive immunity.109
The US Court of Appeals held in the case of Abdulaziz v Metropolitan Dade County and Others110 in 1984 that once the State Department had certified that an individual in the United States was entitled to diplomatic status, the court was bound to accept that determination, and the certificate was not reviewable by the court.
In US v Noriega and Others111 in 1990 a US District Court held that General Noriega, charged with narcotics offences following his surrender to US forces during their invasion of Panama, was not entitled to diplomatic immunity either on the basis of holding a Panamanian diplomatic passport or on the basis of US diplomatic visas. A diplomatic passport might secure certain courtesies in international travel but was ‘without References(p. 257) significance in international law’. Similarly the issue by the United States of a diplomatic visa was ‘an administrative action in connection with United States immigration law and is quite independent of the process of diplomatic accreditation’. The court also had a Declaration by an Under Secretary of State within the State Department that: ‘The President of the United States does not recognize General Manuel Antonio Noriega as either the head of government or head of state of the Republic of Panama.’112 The court in its decision had regard to the Circular Note sent by the State Department in 1985 to all diplomatic missions and which was annexed to the US Government’s Motion in Opposition to Defendant Noriega’s Motion to Dismiss the Indictment. In R v Lambeth Justices, ex parte Yusufu113 in 1985 a similar argument of entitlement to diplomatic status on the basis of a diplomatic passport and a diplomatic entry visa was raised by one of the kidnappers of the Nigerian ex-Minister Mr Dikko, and was rejected by the English Divisional Court on the basis that there had been no notification of Mr Yusufu as a diplomatic agent to the Foreign and Commonwealth Office in London.
Legal effect of establishment or lifting of immunity
The Convention does not itself spell out the legal consequences of diplomatic immunity from jurisdiction, but it is generally accepted that it is procedural in character and does not affect any underlying substantive liability. The court must determine the issue of immunity on the facts at the date when this issue comes before it, and not on the facts at the time when the conduct or events giving rise to a claim or charge took place or at the time when proceedings were begun. It follows that if the defendant becomes entitled to immunity he may raise it as a bar to proceedings relating to prior events or to proceedings already instituted against him, and the courts must discontinue any such proceedings if they accept his entitlement. Conversely if the defendant loses any entitlement—whether through termination of his appointment, through waiver by the sending State, by operation of law, or through any other change of circumstances—the court may proceed even though he was entitled to immunity when the events took place or when process was originally begun.114 The distinction between immunity from jurisdiction and impunity was emphasized by the International Court of Justice in 2002 in the Arrest Warrant Case where they said:
Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.115
In English law the position was made somewhat more difficult by the terms of the Diplomatic Privileges Act 1708,116 which required civil suits against ambassadors or their servants to be ‘deemed and adjudged to be utterly null and void, to all intents, References(p. 258) constructions, and purposes whatsoever’. In Empson v Smith,117 however, proceedings claiming damages for breach of a tenancy agreement against a member of the administrative and technical staff of the Canadian High Commission were begun shortly before the entry into force of the Diplomatic Privileges Act. The Act, which gave effect in the United Kingdom to the Vienna Convention, limited the entitlement to immunity of the defendant in respect of civil proceedings relating to acts performed outside the course of his duties. The court held unanimously that the defendant could not have the action dismissed without determination on the facts of whether the acts done in relation to the tenancy were outside the course of his duty. Diplock LJ said:
It is elementary law that diplomatic immunity is not immunity from legal liability but immunity from suit…Statutes relating to diplomatic immunity from civil suit are procedural statutes. The Diplomatic Privileges Act 1964 is in my view clearly applicable to suits brought after the date on which that statute came into force in respect of acts done before that date.
He held that notwithstanding the Diplomatic Privileges Act 1708 the proceedings were not ‘null and void’ in the legal sense but could, like a phoenix, be brought to life by removal of the procedural bar through waiver or any other cause.118 This case was followed in 1979 in the case of Shaw v Shaw.119 In that case divorce proceedings instituted against a serving US diplomat were allowed by the English High Court to continue on the basis that by the time the matter came to court the husband, who had left his post at the embassy and returned to the United States, was no longer entitled to diplomatic immunity.
In the case of Gustavo JL and Another120 the Supreme Court of Spain also emphasized the procedural nature of diplomatic immunity in rejecting the argument that a diplomat at the Embassy of Colombia could not be tried for drug trafficking offences even after dismissal from his post and waiver of his immunity because this would violate the provision of Spanish law which prohibited retroactive application of criminal laws. The Supreme Court held that the effect of the waiver by the sending State was ‘to remove the procedural impediment which immunity represented and thereby, as stated above, to enable the judicial authorities of the receiving State to prosecute a [former] diplomatic agent for acts which, at the date of their alleged commission, constituted crimes according to the domestic legislation of the receiving State’. A similar view was taken in 1988 by a US District Court in the case of US v Guinand,121 in which a member of the administrative staff of the Peruvian Embassy was charged, following his dismissal from the embassy, with distribution of cocaine at a time when he was entitled to diplomatic immunity. The court gave great weight to a Declaration of the State Department Legal Adviser as to the US Government’s interpretation of the Vienna Convention and to the fact that this position had been communicated to all diplomatic missions in the United States in 1987.122 They also noted precedents in the same sense from other jurisdictions, including Empson v Smith which is described above.
References(p. 259) It would appear to follow from those cases that if without the court being aware of the status of the defendant a verdict is given in the case of criminal proceedings or a judgment in the case of civil proceedings, these may be regarded as valid under national law. The diplomat if still entitled to immunity could, of course, raise it as a bar to any form of enforcement of a conviction or judgment against him.
2 (1585) Book II chs XIII, XVII, XVIII, XIX, XXI.
3 (1625) II.XVIII.iv. 5, 6, and 7.
4 (1721) ch XVIII. ‘Novi aevi exempla de legatis qui varie deliquerant, non punitis, tot ubique in Annalibus occurrunt, ut ipsa copia laboremus.’
5 UN Legislative Series vol VIII, Laws and Regulations regarding Diplomatic and Consular Privileges and Immunities (‘UN Laws and Regulations’) pp 201 (The Netherlands), 224 (Denmark—under Norway); Feller and Hudson, Diplomatic and Consular Laws and Regulations (1933) vol I p 409. For other cases see Salmon (1994) paras 406–8.
6 7 Anne c 12; UN Laws and Regulations p 347; Martens (1827) vol I p 73; McNair (1956) vol I p 189; Adair (1929) p 87.
8 See Comina v Kite AD 1919–22 No 202; Lurie v Steinmann AD 1927–8 No 246 (‘It is quite obvious that when questions of privileges and immunity of diplomatic agents arise…such immunity can only refer to the persons of the diplomatic agents with regard to their private affairs.’); Balloni v Ambassador of Chile to the Holy See AD 1933–4 No 164 (‘But immunity cannot be extended to acts done by diplomatic agents and persons of their suite outside the sphere of their functions’); De Meeus v Forzano AD 1938–40 No 164 (Court of Cassation).
9 MH v Embassy of the Republic of China, 3 September 1969, 70 ILR 394.
10 Case concerning United States Diplomatic and Consular Staff in Tehran 1980 ICJ Reports 3 at para 79.
11 eg De Andrade v De Andrade 118 ILR 299 (1984); P v P (Diplomatic Immunity: Jurisdiction)  1 FLR 1026, 114 ILR 485; In re B (A Child)(Care Proceedings: Diplomatic Immunity)  EWHC 1751 (Fam);  2 WLR 168;145 ILR 516.
12 VII BDIL 809. Satow (5th edn 1979) para 15.17 gives the example of a suicide in the British Embassy at Madrid in 1921, where evidence taken in the embassy from the ambassador and some mission staff was drawn up in a proces-verbal. See also Lyons, ‘Diplomatic Immunity: Some Minor Points’, 1958 BYIL 373; Salmon (1994) para 402.
14 See eg, Kramer Italo Ltd v Government of Belgium, Embassy of Belgium, Nigeria 103 ILR 299. The suit was correctly dismissed on grounds of state immunity as well as the diplomatic immunity of the mission staff, but the court expressed concern (at 310) that it would ‘destroy the basis of diplomatic immunity…if a foreign sovereign is made answerable in court for the action of his envoy who enjoyed diplomatic immunity’. It is submitted that this concern was not justified.
17 For a more complex case, where although neither the ambassador nor the sending State were directly sued, the defendant persuaded the Supreme Court of New South Wales that the Ambassador of Saudi Arabia was a ‘necessary and proper party’ to the proceedings and that the plaintiff sought to implead the sending State through him, see Australian Federation of Islamic Councils Inc v Westpac Banking Corp (1988) 17 NSWLR 623, 104 ILR 405.
18  1 KB 376, AD 1929–30 No 190.
19 Hansard HL Debs 24 June 1985 col 543, cited in 1985 BYIL 455.
20 Public Law 95–393; 22 USC 254a et seq, 28 USC s 1364.
22 Title VI of Department of State Authorization Act, Fiscal Years 1984 and 1985, Public Law 98–164, approved 22 November 1983, 97 Stat 1017, 1042. The detailed requirements are set out in 1981–8 DUSPIL 1036.
24 69 ILR 280, 1973:2 RBDI 679. French law also permits direct action against an insurer: see Salmon (1994) para 414.
26 Cmnd 9497, paras 60–2.
27 The Times, 29 July 1997; see also Hansard HC Debs 29 June 2000 W col 580, cited in 2000 BYIL 588.
28 UN Docs A/Conf. 20/C 1/L 186/Rev. 1; A/Conf. 20/14 pp 166–72.
29 eg Protocols on Privileges and Immunities of the European Space Research Organisation and the European Launcher Development Organisation: UKTS No. 39 (1968) and No. 28 (1967).
33 26 AJIL (1932 Supp) 164 (Art 16), 187 (Art 12).
34 26 AJIL (1932 Supp) 170, 174 (Art 27).
35 Ibid 175; UN Laws and Regulations pp 419, 425 (Arts 334, 337); CLV LNTS 261.
36 1884 Journal de Droit International Privé 57; ibid 1917 at 588.
37 Genet (1931) vol I pp 582–5; Hurst (1926) pp 180–4; Lyons (1953) at pp 137–8.
38 UN Laws and Regulations p 65.
42 1950 ILR No 91 esp at 298.
43 eg Afghan Minister (Consular Activities) Case AD 1931–2 No 179; Embassy cases before Supreme Restitution Court for Berlin 28 ILR 369 et seq.
46 Hansard HC Debs vol 699 cols 864–73, 891–8.
47  QB 1019,  2 All ER 495,  2 WLR 908. See also Richtsteig (1994) pp 70–1.
48 118 ILR 299. In Laverty v Laverty 1995 Can YIL 427 an Ontario court held that an action by the wife of a diplomat was not against the land but against her husband who held an interest in it, and so it was not a ‘real action’.
51 UN Laws and Regulations p 237 note 5.
52 UN Laws and Regulations p 15 (Austria); ibid p 65 (Colombia); ibid p 82 (Czechoslovakia); ibid pp 166–7 (India); ibid p 243 (Poland); ibid p 308 (Switzerland).
53 AD 1925–6 Nos 245, 246.
55 1950 ILR No 91. cp Matter of Foreclosure of Tax Liens by City of New Rochelle v Republic of Ghana, 255 NYS 2nd 178, 1965 AJIL 642.
56 280 ILR 369, 385, 392, and 396.
58 15 Entscheidungen des Bundesverfassungsgrerichts 25; 1963:16 Neue Juristische Wochenschrift 435; 1965 AJIL 653; 38 ILR 162 (1962 decision) and 65 ILR 108 (1969 decision).
59 UN Doc A/CN 4/91 Art 20.1(a); ILC Yearbook 1957 vol I pp 94–5.
62  QB 1019,  2 All ER 495,  2 WLR 908.
64 Adopted by General Assembly Res A/RES/59/38 of 16 December 2004.
67 26 AJIL (1932 Supp) 170 (Art 27) and 174 (Art 27).
68 UN Doc A/CN 4/91 p 4 (Art 20) and p 18.
69 ILC Yearbook 1957 vol I pp 96–7; UN Doc A/CN 4/116 pp 55–6 (observations of Government of United States on draft Arts).
70 UN Docs A/Conf. 20/C 1/L 221 para 1; A/Conf. 20/14 p 167.
71 (1721) ch XIV ‘De Legato Mercatore’.
72 (1758) IV.VIII para 114: ‘Et bien que, pour ces procès, on ne peut s’addresser directement à la personne du ministre à cause de son indépendance, on l’oblige indirectement à répondre, par la saisie des effets qui appartiennent a son commerce.’
75 See Mervyn Jones (1940); Holland (1951).
77 2 El & El 94 at 116; 121 ER 36.
78 (1899) vol II pp 129–31.
79 1895–6 Institut de Droit International Annuaire p 240; 1929 vol II p 207; 26 AJIL (1932 Supp) 162 (Art 16 at 164), 186 (Art 13 at 187).
80 26 AJIL (1932 Supp) 121.
81 (1931) vol I pp 579–82.
83 Genet (1931) vol I p 580; Satow (4th edn 1958) p 185.
84 UN Laws and Regulations pp 65, 112, 167, 224, 243, 308, 330.
85 ILC Yearbook 1957 vol I pp 97–8.
86 UN Docs A/CN 4/L 75 p 22; A/CN 4/116 p 56.
87 UN Docs A/Conf. 20/C 1/L 173; A/Conf. 20/14 pp 165–6, 212–13.
88 International Herald Tribune, 13 July 1984; 1985 RGDIP 141.
89 A/CN 4/116 p 56: comment by Rapporteur to ILC.
90 US Court of Appeals, 4th Cir 73 F 3d 535; 1996 US App LEXIS 495; 107 ILR 452. See also Logan v Dupuis, 900 F Supp 26, DDC 1997.
91  EWHC 105; 152 ILR 557. See also US Statement of Interest in 2009 DUSPIL 378.
93 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, 2000, UNTS vol 2237 p 319 (‘the Palermo Protocol’); Council of Europe Convention on Action against Trafficking in Human Beings, 2005, CETS N 197.
96 These agreements, of which the United States has concluded many, are discussed in the context of Art 37.1. For agreement concluded in 1982 between Chile and the United States, see Lecaros (1984) p 141.
98 118 ILR 299 at 306, described by Brown (1988) at 76.
99 State Department information.
101 Judgment of Laws, Judgment of 14 March 1996, unreported. Although the case went to the Court of Appeal, the finding on this point was not appealed.
102 Construction of the similar expression ‘in the exercise of his functions as a member of the mission’ in Art 39.2 may raise even more difficult problems, particularly in the context of criminal proceedings: see below.
103 US District Court Northern District of Texas Dallas Division, Civil Action No 3: 03-CV-2138-B, Memorandum Order of 3 December 2004.
105  1 QB 426 at 434,  2 All ER 881, 41 ILR 407.
106  2 QB 274,  2 All ER 11,  2 WLR 816.
107 7 Digest of International Law 108–26. See also Lecaros (1984) p 141.
108 PL 95–393, cited in 1978 DUSPIL 585.
109 Text of Note of 20 December 1985 provided by State Department.
110 11th Cir, 18 September 1984, 741 F 2d 1328 (1984), 99 ILR 113.
111 US District Court, Southern District of Florida, 8 June 1990, 99 ILR 143 at 165–7.
112 Text of Declaration provided by State Department.
113  Crim LR 510,  Times Law Reports 114.
114 See Salmon (1994) para 400.
115 Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) 2002 ICJ Reports 1.
117  1 QB 426,  2 All ER 881, 41 ILR 407.
119  3 All ER 1, 78 ILR 483.
122 In US Department of State Publication 9633, Guidance for Law Enforcement Officers: Personal Rights and Immunities of Foreign Diplomatic and Consular Personnel.