In a normal course of life, diplomatic agents are involved in different civil relations with natural and legal persons in the State to which they have been accredited, for example, renting accommodation, employing private servants and purchasing goods or services. It is a general principle that every person in the ‘market’ should be treated equally and without any discrimination. Therefore, it is logical and reasonable to assume that a diplomatic agent should have the same rights and duties as well as bear the same liability as every other person in similar relations. However, the matter is more complicated as diplomatic agents are given a special status according to international law. The receiving State is under a legal obligation to respect, assist and protect him and not to interfere with his official functions. A diplomatic agent is granted different inviolabilities and privileges as well as immunity from the jurisdiction of the receiving State in order to enable him to exercise his official functions independently and effectively and to avoid any interferences on the part of the receiving State. Jurisdictional immunity encom- passes actually three different immunities, namely immunity from criminal, civil as well as administrative jurisdiction, and it is accompanied by the prohibition to take measures of execution. Because immunity from criminal jurisdiction is often believed to have exceedingly unjust effect on those affected by the criminal behaviour of a diplomatic agent, the former tends to receive disproportionately much scholarly attention and leaves other immunities in shadow. However, if one takes a look at practical life, it becomes clear that it is not immunity from criminal, but from civil jurisdiction that causes more legal problems for States. One obvious reason is the fact that while immunity from criminal jurisdiction is absolute and unqualified, immunity from civil jurisdiction has certain exceptions, which render this immunity somewhat unclear and subject to considerable interpretations. This article analyzes immunity from civil jurisdiction and prohibition to take measures of execution as well as determine their limits under the regulation of the Vienna Convention on Diplomatic Relations.
Concept of Diplomatic Immunity
There are both political and legal aspects in every civil disagreement with a diplomatic agent. The receiving State probably has to make certain compromises not only between its external and internal interest, but also between the state and private interest, for example, demand for the waiver of immunity may be internally popular decision, but may potentially harm external relations with the sending State. Although political reasoning behind particular decisions may be complex, diplomatic law is relatively simple in its legal structure in so far as most diplomatic law depends directly on executive action. The situation is more elaborate in the case of jurisdictional immunity because it involves such issues as the relationship between the executive and judicial power, the interpretation by the courts of the obligations incurred internationally by the government and, to some extent, the interaction between the legal systems of the receiving and sending State.
Jurisdictional immunity is a principle of public international law according to which certain foreign government officials, including diplomatic agents, are not subject to the jurisdiction of local courts and other authorities of the receiving State for both their official and, to a large extent, their personal activities. However, the need for diplomatic immunity, that is, jurisdictional immunity especially meant for diplomatic agents, is neither self-evident nor unchallenged. There have always been those who completely oppose such immunity, but then again there have equally been those who unquestionably believe in the need of diplomatic immunity without admitting any exceptions. The reasonable path lies somewhere between the described extreme positions. As to the justification of diplomatic immunity, three theories have been developed since the seventeenth century. The first two theories, namely the theory of extraterritoriality and of representative character, are nowadays disregarded due to their fictitious and figurative nature and non-compatibility with reality. The International Law Commission (ILC) also rejected these theories (although it did not deny the representative character of the head of the mission and of the mission itself) and turned to the theory of functional necessity, which provides a conceptual basis for the Vienna Convention. According to the third theory, the justification for granting immunity to diplomatic agents is based on the need to enable normal functioning of diplomatic agents as well as the diplomatic mission. The same position can be found in the preamble of the Vienna Convention, where it is declared that ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions when representing States’. This creates a link between granting immunities and performing diplomatic functions and furthermore serves as a criterion for assessing whether immunities are appropriate and necessary when such a link is missing.
The immunity conferred to diplomatic agents is primarily procedural in character and does not affect any underlying substantive liability. The judge said in the English landmark case of Empson v. Smith that ‘it is elementary law that diplomatic immunity is not immunity from legal liability, but immunity from suit’. Subject to exceptions resulting from the performance of diplomatic functions according to the orders of his government, diplomatic agents are under a general obligation ‘to respect the laws and regulations of the receiving State’. In other words, diplomatic agents are not above the law and if they breach local law, they are also liable for such breach, although ‘they are not liable to be sued in the [courts of the receiving State] unless they submit to the jurisdiction’. To regard diplomatic agents also exempt from liability would produce absurd and unjust results. For example, a diplomatic agent who has just paid his debt could sue for recovery of the money on the basis that he had paid the money in the absence of any obligation and the other person had received unjust enrichment.
Whenever immunity is established and accepted by the court, the latter must discontinue all proceedings against the defendant concerned. The court has to determine the issue of immunity on the facts on the date when this issue comes before it and not on the facts at the time when an event gave rise to the claim of immunity or at the time when proceedings were begun. This means that a diplomatic agent can raise immunity as a bar to both proceedings relating to prior events (that occurred before he became a diplomatic agent entitled to immunity) and proceedings already instituted against him. Although all proceedings against the diplomat agent must be suspended during the period of entitlement to diplomatic immunity, it does not mean that these proceedings are null and void because of immunity. The Court made it clear in the case of Empson v. Smith that on the termination of diplomatic status, for whatever reason, any subsisting action that had to be stopped on the grounds of the defendant’s immunity could be revived. This can be done even though he was entitled to immunity when the events concerned took place or when the process was originally begun. Nevertheless, immunity of diplomatic agents remains indefinite in respect of the acts performed in the course of their duties, as they cannot be held personally liable for the orders given by their governments or for carrying out such orders. Indeed, personal liability for official acts would make the performance of diplomatic function unreasonably risky for diplomatic agents.
Scope and Limits of Immunity from Civil Jurisdiction
Immunity from civil jurisdiction developed slower and later than immunity from criminal jurisdiction, but the concept was established in state practice by the eighteenth century. Such immunity was demanded by the fact that the receiving State could not control whether a civil action is brought against a diplomatic agent or not. Whereas the initiation of penal proceedings depends on the decision of public authority, civil actions can be brought before a court by ordinary people. Therefore, immunity from civil jurisdiction was partly designed to prevent injury to the external relations of the receiving State, caused by private suits. Although most authors were of the opinion that immunity from civil jurisdiction should be restricted, court practice followed primarily the line of absolute immunity, especially in cases relating to professional or commercial activity. It was not until the Vienna Convention that immunity from civil jurisdiction was clearly restricted through introduction of three specific exceptions. Article 31(1) provides that a diplomatic agent shall enjoy immunity from civil jurisdiction of the receiving State, except in the case of:
(a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) an action relating to succession in which the diplomatic agent is involved as an executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
These exceptions do not, indeed, reflect established customary international law, but they are necessary or reasonable, at least, for three reasons. Firstly, if the receiving State did not have jurisdiction over such cases, the latter would probably remain unexamined as it would be virtually impossible for any court elsewhere to examine the cases. Secondly, such cases are not connected with the official duties of a diplomatic agent, but are purely private in nature. Thirdly, such cases do not usually involve the possibility of criminal proceed- ings or imprisonment, which can hinder the performance of official duties. At the early stage of drafting the Vienna Convention, the United States even suggested the deletion of the second as well as the third exception to immunity from civil jurisdiction, but no other State joined the United States in disputing the desirability of these exceptions (the United States abandoned its demand later).
The occasions for taking recourse to civil action against a diplomatic agent may also arise in a number of circumstances for which these exception do not apply, for example, non-payment of debts or tradesman’s bill for articles supplied for his personal consumption, non-payment of rent or violation of conditions of a lease, recovery of hire charges or repair bills and compensation for loss or injury caused to a person or property due to motor car accidents or other forms of default. Judicial measures are unavailable in such cases and the injured party has to avail itself to non-judicial procedures such as approach to the Ministry for Foreign Affairs with a request to act as a mediator in the dispute. The ministry can approach the head of the respective mission and ask him to facilitate the settlement of that dispute. As most diplomatic agents are willing to preserve good reputation both in the receiving and sending State, they will usually reach a settlement with the other party.
However, if the diplomatic agent is persistently refusing to reach a compromise, the ministry can take more serious steps and can ask either the diplomatic agent to be recalled or his immunity to be waived.
There is also an indirect exception to immunity from civil jurisdiction of the receiving State. If a diplomatic agent initiates proceedings in a court of the receiving State, that is, invokes himself the jurisdiction of the latter, he precludes himself from the possibility to invoke immunity in respect of any counter-claim directly connected with the principal claim. It is assumed that if a diplomatic agent initiates proceedings, he submits himself to the jurisdiction of the receiving State in a manner that is necessary for full and complete examination of the particular case. The diplomatic agent has to take into account that the defendant must also have the same rights in defending his interest and such defence may include the submission of a counter-claim. The latter must be directly, not simply indirectly connected with the principal claim. For example, an English court held that when the diplomatic agent claimed for money or damages from the defendant, he did not submit himself to a counter-claim for defamation (especially because the latter was a criminal offence). A counter-claim is admissible only if the diplomatic agent was the initiator of proceedings; he being, for example, merely a witness or expert is not enough.
René Värk is Lecturer of Public International Law and Director for Academic Affairs at the Institute of Law, University of Tartu; Visiting Lecturer of Diplomatic and Consular Law at the Estonian School of Diplomacy; Tutor at the Diplomatic Council in Oxford, United Kingdom. He is a graduate of the Institute of Law (2000, LL.B., magna cum laude) and Stockholm University (2001, LL.M.). Currently, he is a doctoral student at the Faculty of Law, University of Tartu. He is a member of the Martens Society and American Society of International Law. His main field of research is diplomatic and consular law, use of force and international humanitarian law.