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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 3 Organs of the states for their international relations, Ch.10 Diplomatic envoys, Persons other than Diplomatic Agents

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 05 June 2020

Subject(s):
Diplomatic missions — Heads of state and other senior officials — Diplomatic relations

(p. 1107) Persons other than Diplomatic Agents

Harv Research (1932), pp 67–77 Lilienstein, Die Exterritorialität des Personals der Gesandtschaft (1934) Hurst, Hag R (1926), ii, pp 152–9, 200–207 Makino, Japanese Review of International Law (January 1922) Wehberg, RI, 3rd series, 7 (1926), pp 360–70 Brookfield, BY, 19 (1938), pp 151–60 Mervyn Jones, JCL, vol 22 (3rd series, 1940), pp 19–31 Gutteridge, BY, 24 (1947), pp 148–59 Moushkely, RG, 54 (1950), pp 43–64 Report on Diplomatic Immunity, Misc No 1 (1952), Cmd 8460 Giulano, Hag R, 100 (1960), ii, pp 150–65 Cahier, Le Droit diplomatique contemporain (1962), pp 310–19 Wilson, ICLQ, 14 (1965), pp 1265–95 Hardy, Diplomatic Law (1968), pp 74–80 Nascimento e Silva, Diplomacy in International Law (1972), pp 79–85, 142–7 Denza, Diplomatic Law (1976), pp 223–43 Satow, pp 143–50 Sen, A Diplomat’s Handbook of International Law and Practice (3rd ed, 1988), pp 185–99, 211–13 Dembinski, The Modern Law of Diplomacy (1988), pp 121–7.

§ 510  Persons other than diplomatic agents

While the principal members of an embassy’s staff are those who have diplomatic rank and who, together with the ambassador, are now referred to as ‘diplomatic agents’, an embassy also comprises other personnel whose status needs consideration. These are members of the staff of the mission, families and private servants. A somewhat separate category which may conveniently be dealt with here is that of diplomatic couriers.

Members of the staff of the mission are defined in Art 1 of the Vienna Convention as the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission. The position of the first of these categories has already been considered.1 The second category comprises those members of the staff of the mission employed in the administrative and technical service of the mission, while the members of the service staff are those members of the staff of the mission in the domestic service of the mission. The sending state may freely appoint the members of the staff of the mission,2 although the receiving state may require the size of the mission to be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving state and the needs of the particular mission.3 The appointment, arrival and final departure (or termination of their function with the mission) of members of the staff of the mission are to be notified to the Ministry for Foreign Affairs of the receiving state.4

(p. 1108) § 511  Members of the staff of the mission

It was generally recognised as a rule of international law that the members of the staff of the mission other than those having diplomatic rank enjoyed in many respects the same privileges and exemptions as the diplomatic staff in matters of criminal and civil jurisdiction, inviolability, exemption from police, subpoena as witnesses, and taxes; the precise limits of their entitlement were, however, unsettled.1 These matters have now been clarified in the Vienna Convention on Diplomatic Relations 1961,2 in the following way:

  1. (a)  Members of the diplomatic staff enjoy virtually the same privileges and exemptions as the head of the mission.3

  2. (b)  Members of the administrative and technical staff4 who are not nationals of or permanently resident in the receiving state also enjoy that level of treatment as regards inviolability of person, residence and property; immunity from criminal and civil jurisdiction; exemption from social security provisions; exemption from taxation; and exemption from personal and public services.5 However, their immunity from civil and administrative jurisdiction of the receiving state does not extend to acts performed outside the course of their duties.6 Their entitlement to customs privileges is limited to articles imported at the time of first installation.7

  3. (p. 1109) (c)  Members of the service staff who are not nationals of the receiving state, or permanently resident there,8 enjoy9 immunity in respect of acts performed in the course of their duties,10 exemption from dues and taxes on the emoluments they receive by reason of their employment, and also exemption from social security provisions in force in the receiving state. They are also within the scope of Art II of the Optional Protocol concerning the Acquisition of Nationality.

§ 512  Private servants

The practice of states regarding the grant of privileges and immunities to persons in the private service of the envoys or of other members of the mission was not uniform.1 Article 37.4 of the Vienna Convention now provides that private servants of members of the mission shall, if not nationals of, or permanently resident in, the receiving state,2 be exempt from (p. 1110) dues and taxes on the emoluments they receive by reason of their employment. They only enjoy other privileges and immunities to the extent admitted by the receiving state,3 which must, however, only exercise its jurisdiction over them in such a manner as not to interfere unduly with the performance of the functions of the mission.

A ‘private servant’ is defined in the Vienna Convention, Art 1, as a person who is in the domestic service of a member of the mission and who is not an employee of the sending state.4 This category will thus include such people as a domestic servant or housekeeper of a member of the mission, or a tutor or governess for his children.

§ 513  Families

Customary international law regarding the privileges and immunities of the wife of an envoy, his children, and such of his near relatives as live within his family and under his roof, and those of the families of the staff of the mission, was none too clear.1 Families of personnel of diplomatic rank were generally recognised as entitled to immunity from criminal and civil jurisdiction, and an ambassador’s wife2 almost certainly partook of her husband’s inviolability and certain other privileges and exemptions as well. Beyond that, states granted varying degrees of privileged treatment.3

(p. 1111) Article 37 of the Vienna Convention on Diplomatic Relations 19614 makes provision for the treatment to be accorded to families of embassy personnel. It does not, however, define the term ‘family’, although in the substantive Articles dealing with the position of families the term is qualified by the requirement that they form part of the household of the member concerned. The family will thus normally include a member of the mission’s spouse and children,5 and certain other of his near relatives living within his family and under his roof. The International Law Commission, in preparing the draft Articles on which the Convention was based, suggested6 that the spouse and children under age were universally recognised as members of the family and that in some cases other relatives may be included if close ties or special circumstances existed.7

As regards members of the family of a diplomatic agent forming part of his household, Art 37 of the Vienna Convention provides that, if they are not nationals of the receiving state, they enjoy the privileges and immunities set out in Art 29 to 36 of the Convention8 — that is, broadly speaking, the same privileges and immunities as the diplomatic agent himself enjoys.9 Members of the families of administrative and technical staff forming part of their household, if not nationals of, or permanently resident in, the receiving state, enjoy the same privileges and immunities as such staff.10 Members of the families of the service staff of the mission are not accorded any privileges or immunities by the Vienna (p. 1112) Convention, although certain special rules which apply in the event of death11 apply to them in the same way as to the family of a member of the diplomatic or administrative and technical staff. Similarly, the provisions of the Optional Protocol concerning Acquisition of Nationality apply to members of the families of all three categories of staff of the mission, so long as they form part of their household.12

§ 514  Diplomatic couriers

To ensure the safety and secrecy of the diplomatic despatches which they bear,1 diplomatic couriers2 have long been regarded as entitled to special protection during the exercise of their office.3 Article 27.5 of the Vienna Convention on Diplomatic Relations requires the courier — who may be a regular courier or a person designated a courier ad hoc4 by the sending state or the mission — to be protected by the receiving state in the performance of his functions, and prescribes his entitlement to personal inviolability and freedom from liability to any form of arrest or detention. He must be provided with an official document indicating his status. Diplomatic couriers probably have no right to be allowed to pass through third states, but if they have been permitted passage5 (by the issue of a visa if that was necessary, or otherwise) they must be accorded by that state the same inviolability and protection as the receiving state is bound to accord.6

At the request of the General Assembly, the International Law Commission has reconsidered the question of the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier.7 In the draft Articles adopted by the Commission in 1989,8 the Commission elaborated substantially on the provisions in the Vienna Convention on Diplomatic Relations 1961. In line with its definition of the diplomatic bag as including bags used for communications with a state’s consular posts and delegations to international organisations,9 the draft defines ‘diplomatic courier’ as ‘a person duly authorized (p. 1113) by the sending State, either on a regular basis or for a special occasion as a courier ad hoc, as (a) a diplomatic courier within the meaning of the Vienna Convention on Diplomatic Relations of 18 April 1961’, (b) a consular courier or (c) a courier of a delegation to an international organisation, ‘who is entrusted with the custody, transportation and delivery of the diplomatic bag and is employed for the official communications referred to in Article 1’10 (Art 3.1). The draft Articles contain provisions to avoid abuse of a courier’s privileges and immunities and to secure his respect for the laws and regulations of receiving and transit states (Art 5), his appointment, documentation, nationality and functions (Arts 7 to 11), and the possibility for him to be declared persona non grata or not acceptable (Art 12). Facilities to be accorded a courier include those necessary for the performance of his functions (Art 13.1), entry into the receiving or transit states (Art 14), the necessary freedom of movement (Art 15), ‘personal inviolability and [non-liability] to any form of arrest or detention’ (Art 16), inviolability, in principle, for his temporary accommodation (Art 17), jurisdictional immunity (Art 18), exemption from customs duties, dues and taxes, and exemption from personal examination and inspection of his personal baggage, subject to cases where there are serious grounds for believing it to contain improper items (Arts 19 and 20). Provision is also made for the beginning and end of a courier’s privileges and immunities, and for waiver or immunity (Arts 21 and 22). The General Assembly has yet to decide what further action to take on these draft Articles.

Footnotes:

See § 492, 499–509.

As to members of the diplomatic staff not having the nationality of the sending state, see § 499, n 1; and as to diplomatic staff assigned to more than one state, see Art 5 of the Vienna Convention. The receiving state may at any time (even before arrival in the receiving state), and without having to give reasons, declare a member of the diplomatic staff persona non grata or any other member of the staff of the mission to be not acceptable, and the sending state must then recall the person in question, or terminate his functions with the mission: Art 9. The receiving state may require the names of military, naval and air attachés to be submitted to it in advance for approval: Art 7.

Vienna Convention, Art 11. The receiving state may similarly, and on a non-discriminatory basis, refuse to accept officials of a particular category.

Vienna Convention, Art 10.1(a).

Some states adopted a more or less restrictive attitude to the privileges and immunities enjoyed by junior members of an embassy’s staff: see, eg Suchet v France, AD (1919–42), No 109; Re Alberto Grillon, Hijo, AD (1929–30), No 194; Pacey v Barroso, AD (1927–28), No 250; Società Arethusa Film v Reist, ILR, 22 (1955), p 544; Re Reinhardt, AD (1938–40), No 171. This was not so in the UK (see Assurantie Compagnie Excelsior v Smith (1923) 40 TLR 105, and, regarding the change in this respect brought about by the Diplomatic Privileges Act 1964, see Empson v Smith [1966] 1 QB 426, 437) or in the USA (see Hackworth, iv, p 515). In Mariani v Adel el Labban and Pierucci (1959), ILR, 28, p 366, an Italian court held that a Commercial Attaché had no diplomatic immunity; as to a ‘Civil Attaché’ employed part-time at an embassy, see Re Norell, ILR, 22 (1955), p 539.

See also Art 14 of the Havana Convention on Diplomatic Officers 1928.

See §§ 492, 499–509. In para 2 of its commentary on Art 36 of its final Draft Articles on Diplomatic Intercourse and Immunities, the ILC remarked that ‘It is the general practice to accord to members of the diplomatic staff of a mission the same privileges and immunities as are enjoyed by heads of mission, and it is not disputed that this is a rule of international law’: YBILC (1958), vol II, p 101.

Such persons, if nationals of or permanently resident in the receiving state, only enjoy privileges and immunities to the extent admitted by that state, which, however, must exercise its jurisdiction over them in such a manner as not to interfere unduly with the performance of the functions of the mission: Art 38. See also, § 499, n 1. The qualification of permanent residence does not affect the application to such members of the mission’s staff of Art II of the Optional Protocol concerning the Acquisition of Nationality.

Considerations of sovereign immunity have been held to prevent a clerk at an embassy from bringing a claim for unfair dismissal: Sengupta v Republic of India [1983] ICR 221, The Times, 18 November 1982; and see § 110, n 28.

Ie, they enjoy all the privileges and immunities specified in Arts 29–35 of the Vienna Convention: ibid, Art 37.2. See, eg Soc Arethusa Film v Reist, AJ, 49 (1955), p 102; Re PS (1975), ILR, 74, p 517; Re DK (1979), ILR, 77, p 467 (allowing immunity, but without apparently considering whether a traffic accident arose during the course of the accused’s official duties). For an example of a special agreement granting people in this category more favourable treatment, see the USA-USSR arrangements concluded in 1978: ILM, 18 (1979), p 56.

Vienna Convention, Art 37.2.

Ibid.

N 4 above applies also to members of the service staff.

Vienna Convention, Art 37.3.

10  The question of the scope of immunity for service staff often arises in connection with chauffeurs employed by embassies, who are involved in traffic accidents. See, denying immunity, Re Jursitis, ILR, 23 (1956), p 429; Re Dorogoutsey, ibid, p 430; Public Prosecutor v Sluys, ILR, 24 (1957), p 529; Bonne and Company X v Company Y (1970), ILR, 69, p 280. But, allowing immunity, see Hitchcock, noted in ICLQ, 7 (1958), p 562. For a case involving denial of immunity to an embassy chauffeur accused of murdering his ambassador, see Ministère Public v Keita (1977), ILR, 77, p 410.

For a summary of the practice of various states prior to the Vienna Convention, see vol I of 8th ed of this work, § 403. As to the application of the Diplomatic Privileges Act 1708 to servants, see also Parry, BDIL, 7, pp 739–48. Since that Act only applied in terms to ambassadors and domestic servants it was sometimes necessary to give a wide interpretation to ‘domestic servants’ so as to cover other members of an embassy’s staff who were clearly entitled to immunity: see Engelke v Musmann [1928] AC 433, 447, 450. For the celebrated case in 1827 of the coachman of Mr Gallatin, the American Minister in London, who, having committed an assault outside the embassy, was arrested in the stable of the embassy and charged before a local magistrate, see Satow, p 110. And see generally M Jones in JCL, vol 22 (3rd series, 1940), pp 19–31.

Recent judicial decisions which may be noted include Carrera v Carrera, AJ, 44 (1950), p 184, in which a US Court of Appeals affirmed the immunity, in an action for maintenance and support of a child, of a domestic servant of the Czechoslovak embassy; Bregante v Souviron, AD, 12 (1943–45), No 76 (no immunity for a governess employed by a diplomat); Haley v State, ILR, 19 (1952), No 90 (no immunity in respect of criminal proceedings); Case of Mohammed Lajed Ahmed, AJ, 49 (1955), p 100 (no immunity in respect of criminal proceedings); Private Servant of Diplomat Case (1971), ILR, 71, p 546 (no immunity for private servant of a counsellor at an embassy).

§ 511, n 4 applies also to private servants. A receiving state may choose to accord privileges and immunities to servants who are its own nationals: see Macartney v Garbutt (1890) 24 QBD 368; Re Di Sorbello, AD, 11 (1941–42), No 108. In the USA an American citizen who is a servant at an embassy is liable to legal process in respect of a debt contracted before he became entitled to immunity: 22 USC 254. Although, with regard to British citizens employed by foreign missions in a diplomatic or clerical capacity, the British practice has been to make it a condition of their acceptance as such that they should enjoy no immunity (except in respect of official acts), no such conditions were imposed with regard to servants for reasons connected, apparently, with the continuing operation of the Diplomatic Privileges Act 1708 (see paras 8–10 of the report on Diplomatic Immunity 1951 (Cmd 8460)). With the repeal of that Act, and the enactment of the Diplomatic Privileges Act 1964, this is no longer so, and such servants are now not entitled to any immunities or exemptions (although where they are also citizens of a Commonwealth country they are in practice granted the privileges and immunities to which they would have been entitled had they not been citizens of the UK and Colonies: see Diplomatic Privileges (Citizens of the UK and Colonies) Order 1964 (SI 1964 No 2043)).

Subject, presumably, to the specific provisions in Art 33.2 regarding the application of social security provisions in respect of private servants of a diplomatic agent.

See § 499, n 1, as to the need for the employment to be bona fide.

See vol I of 8th ed of this work, § 404. In 1958 the view of the British Government was clearly stated in Parliament as being that immunity from arrest and detention and from suit and legal process ‘are customarily regarded as extending to the wife of a Head of Mission or of a member of his official staff and also to those members of their families who are dependent upon them. The personal inviolability of the Head of a Diplomatic Mission and of his suite and their families is full recognised by Her Majesty’s Government’: Parliamentary Debates (Commons), vol 585, cols 200–201 (written answers 3 April 1958). See generally on the position of families, Wilson, ICLQ, 14 (1965), pp 1265, 1279–95; O’Keefe, ICLQ, 25 (1976), pp 329–50; Brown, ICLQ, 37 (1988), pp 53, 63–6.

See Herman v Apetz, AD, 4 (1927–28) No 244, for the view that the consent of the home state is not necessary to enable an envoy to waive the immunity of his wife or family. See also Epoux Y v Société Centrale de Construction, ILR, 26 (1958-II), p 542, reversing ILR, 22 (1955), p 549 and upholding ILR, 18 (1951), No 112 in granting immunity to a wife in respect of a pre-marital debt (see also Clunet, 85 (1958), p 789, and RG, 62 (1958), p 517); People v von Otter, ILR, 19 (1952), No 89 (immunity granted to wife in respect of a parking offence); Reyes v Egidi, New York Law Journal (1952), p 919 (no immunity for wife of a commercial attaché); Immunity of Diplomat’s Wife Case (1965), ILR, 71, p 544 (no immunity for wife of naval attaché). For the immunity of the husband of Mrs Ingley, who was on the staff of the US embassy in London, in respect of an offence of which he was accused but for which no waiver was granted, see UKMIL, BY, 58 (1987), pp 546, 547. As to wives living apart from their husbands, see Cottenet v Rafalovitch, Clunet (1908), p 153; Macnaghten v Coveridias, Supreme Court Practice [UK], 1988, vol 1, p 1033; Hurst, Hag R (1926), ii, p 158. In Re D’Athouguia Da Rocha Fontes, ILR (1957), p 529, the wife of a first secretary involved in a traffic accident was held not to be within the scope of the Supreme Court’s exclusive and original jurisdiction over cases involving diplomats, and therefore was subject to the jurisdiction of lower courts. As to the refusal of the USSR to allow Soviet wives of foreign diplomats to leave Moscow with their husbands, see GA Res 285 (III) (1949), and Wilson, ICLQ, 14 (1965), at pp 1285–6.

Thus, when in 1906 Carlos Waddington, the son of the Chilean envoy at Brussels, murdered the secretary of the Chilean legation, the Belgian authorities did not take any steps to arrest him. Two days afterwards, however, the Chilean envoy waived the immunity of his son, and on 2 March the Chilean Government likewise agreed to the murder being prosecuted in Belgium. The trial took place in July 1907, but Waddington was acquitted by the Belgian jury. See RG, 14 (1907), pp 159–65. See also Re C (an infant) [1958] 2 All ER 656, [1959] Ch 363 (grant of immunity in wardship proceedings); and a prosecution for manslaughter brought by the Greek authorities against the son of the British military attaché in Athens, noted by Lyons, BY, 35 (1959), at p 264; and UK Contemporary Practice, VI, in ICLQ, 7 (1958), pp 559–62.

See also Art 14 of the Havana Convention on Diplomatic Officers 1928.

See Hill, AJ, 25 (1931), at pp 262, 263–4; Hackworth, 4, pp 520–1; Whiteman, Digest, 7, pp 260–65; Re Pisani Balestra Di Mottola (1969), ILR, 71, p 565, granting immunity from criminal jurisdiction to a diplomat’s son; but a child of a woman married to a diplomat, but where the child was born to the woman in a previous marriage, has been held not entitled to immunity: Re R F N (1977), ILR, 77, p 452. In 1979 no inquest was held on the death in the UK of the daughter of a foreign diplomat: Parliamentary Debates (Commons), vol 964, col 82 (written answers, 12 March 1979). As to an incident in 1983 involving the son of a Soviet diplomat in the USA, where there were grounds for believing that the son wished to seek asylum, see Ross, Harv ILJ, 25 (1984), pp 217–25.

Current British practice is to accept as a member of a diplomat’s family forming part of his household his wife, children under 18, children over 18 who are clearly resident with the member of the mission and not engaged in employment on a permanent basis, and other relatives only in exceptional circumstances: White Paper, Diplomatic Privileges and Immunities (1985, Cmnd 9497), para 25.

Paragraph (11) of the Commission’s comment on its draft of Art 36: YBILC (1958), vol II, p 102.

As where a relative kept house for an ambassador although not closely related to him; or where a distant relative had lived with the family for many years so as in effect to become a part of it. See also n 1.

The provisions of Art 39 of the Vienna Convention regarding the duration of privileges and immunities may also be intended to apply to members of families (since they are included in the phrase ‘person entitled to privileges and immunities’), but it is not wholly easy so to apply them since those provisions are drafted in terms of taking up and relinquishing appointments.

See §§ 492, 499–509.

10  See § 511.

11  Arts 39.3 and 4.

12  Art II.

As to the inviolability of the diplomatic bag, see § 498.

See Embassies and Foreign Courts (1855), pp 178–99. See also Hackworth, iv, §§ 415–18 and Whiteman, Digest, 7, pp 201–12, on diplomatic pouches, couriers, and immunity of correspondence in time of war. In answer to a request from the US Department of State that instructions be issued to British censorship officials directing them to abstain from interference with the diplomatic and consular mails of the USA it was stated, in February 1940, that: (a) both diplomatic and consular correspondence, if addressed to a state department and if certified as emanating from a diplomatic mission or consulate, were exempt from examination; and (b) the censorship examiners must be left free to determine whether a particular governmental institution was ‘to be regarded as a State Department for the purposes of examination’ (ibid, p 632).

See Juan Ysmael and Co v SS Tasikmalaja, ILR, 19 (1952), No 94. However, note Laterrade v Sangro y Torres, ILR, 18 (1951), No 116, and § 550, para (3).

Article 27.6. As to the entrustment of diplomatic packages to the captain of a commercial aircraft — a frequent practice in respect of non-confidential material — see Art 27.7.

Or in cases of force majeure: Art 40.4.

Article 40.3.

See § 498.

See § 498, n 9.

See § 498, n 12. By virtue of draft Protocol One to the draft Articles the provisions may be extended also to bags and couriers for special missions (see § 531ff).

10  For the communications referred to see § 498, n 12.