The Appropriate Scope of Diplomatic Immunity


Master's Thesis, 2013

61 Pages, Grade: 1,7


Excerpt

Table of Contents

Introduction

History of Diplomatic Immunity

Definition of Diplomatic Immunity

Theories of Diplomatic Immunity

Theory of Personal Representation

Theory of Exterritoriality

Theory of Functional Necessity

Diplomatic Immunity under International Law

Diplomatic Immunity under the Vienna Convention on Diplomatic Relations

Persons entitled to Privileges and Immunities

The Non-Diplomatic Staff of the Mission

Persons Who Are Citizens of the Receiving State or Who Are Resident in the Receiving State

Diplomatic Privileges and Immunities

Immunity from the Jurisdiction

Personal Inviolability of a Diplomatic Agent

Inviolability of the Mission Premises

Inviolability of Residence and Property

Inviolability of the Archives

Freedom of Communication

Exemption of Mission Premises from Taxation

Exemption of Official Fees from Taxation

Exemption from Personal Services

Exemption of Customs Duties and Inspection

Duration of Diplomatic Privileges and Immunities

Beginning and End of diplomatic Privileges and Immunities

Notification of Arrival and Departure

Enabling Departure of Persons Enjoying Privileges and Immunities

The Limits of Diplomatic Immunity

Persona Non Grata

Practice in Bosnia and Herzegovina

Duties of the Mission and Its Members towards the Receiving State

Using of Mission's Premises contrary to the Their Inviolability

Exception from Immunity from Civil and Administrative Jurisdiction

Taking Coercive Measures against Diplomats

Non-Discrimination and Reciprocity

Measures that Can Be Taken by the Sending State if the Receiving State Does Not Respect Privileges and Immunities of Its Diplomats

Other Issues Related to Privileges and Immunities

Support of the Receiving State

Protection of Premises, Archives, and Interest after Breach of Diplomatic Relations or Recalling of a Diplomatic Mission

Waiver of Diplomatic Immunity

Waiver of Inviolability

Diplomatic Immunity in Practice

Murder from the Embassy

Espionage, Terrorism and Subversive Activities

Cigarette Smuggling

Traffic Accidents

Case Vodušek

Parking Offences

Diplomatic Immunity and Human Rights

Demonstration

Diplomatic and State Immunity versus Right of Access Court

Diplomatic Asylum

Divorce and the Diplomatic Immunity

Reparations

Waiver of Diplomatic Immunity in Practice

Conclusion

Bibliography

Introduction

Historically, diplomatic immunity arose out from the respect of the messengers who carry the message of their ruler or sovereign to declare war, conclude peace or about other important national issues. In the early period of history, the messengers were protected with the taboos based on the belief that some behavior is accursed and that a threat of the supernatural punishment exists. Later in history, the messenger had been protected by understanding that the messenger is the personification of his rulers and by the principle of reciprocity. According to the principle of reciprocity, freedom, and safety of the messengers of one sovereign are determined with the behavior of this sovereign regarding the messengers sent to him from the sovereign above. The murder of a messenger of a foreign ruler was the explicit declaration of the war because it was a clear sign that this side did not want to negotiate rather than fight. In modern times, the protection of envoys has evolved into the diplomatic privileges and immunities as a legal obligation of guarantee the security of diplomats as authorized representatives of a foreign State. The failure by the respect the diplomatic privileges and immunities may have serious consequences on the relations between States.

The diplomatic law has mostly been customary law. The most important convention which codified norms of diplomatic law is Viena Convention on Diplomatic Relations (hereafter Vienna Convention), which was done at Vienna on 18 April 1961 and entered into force on 24 April 1964. Nowadays, the diplomatic law contains norms of international law, domestic law, and norms which arise from the obligation of the State to implement the norms of international law or bilateral agreements[1]. The key part of the diplomatic law are norms whose regulate privileges and immunities of the diplomats performed their function in friendly or unfriendly environments, even in situations of war, civil war or natural disasters. The diplomatic privileges and immunities should allow diplomats to perform their functions in the receiving State without fully understanding of all customs, laws, and regulations of this State. On the other side, the diplomatic privileges and immunities could not be a license to commit crimes and the violence of any domestic or international law. In practice, the diplomatic privileges and immunities are sometimes misused as a shield protecting diplomats in the activities prohibited by law. Such activities are serious crimes, murders, espionage, terrorism, drunk driving, participating in illegal trafficking of artwork, drugs, cars and quite trivial offenses such as illegal parking, violation of traffic regulations or fishing without a license.

What is the appropriate scope of diplomatic immunity or whether the diplomatic privileges and immunities are too broad and in what parts they should be limited? The answer to this question requires the study of the history, theory, and practice of the diplomatic privileges and immunities. The Vienna Convention is the vital subject of this work because it codified in details the customary law and the diplomatic practices regarding the diplomatic privileges and immunities. This work also analyses some cases, explaining how the rules regarding the diplomatic privileges and immunities are implementing in practice.

History of Diplomatic Immunity

“…Recalling that peoples of all nations from ancient times have recognized the status of diplomatic agent…”[2] The expression peoples of all nations means that the diplomacy and diplomatic privileges and immunities are not an invention of only one nation or civilization. “…All civilizations have recognized the importance of protecting envoys from harm…”[3] It is not clear when have begun ancient times. “…Diplomacy in the sense of ordered conduct of relations between one group of human beings and another group alien to themselves is far older than history. The theorists of the sixteen century contended that the first diplomats were angels because they served as messengers between heaven and earth. Even in prehistory, there must have come moments when one group of savages wished to negotiate with another group of savages if only to indicate that they had had enough of the day’s battle and would like a pause in which to collect their wounded and to bury their dead. From the very first, even to our Neanderthals or and Cromagnon ancestors, it must have become apparent that such negotiations would be severely hampered if the emissary from one side were killed and eaten by the other side before he had had time to deliver their message. Therefore, the practice had to be established even in the remotest times that it would be better to grant to such negotiators certain privileges and immunities which were denied to warriors…and from this practice derive those special immunities and privileges enjoyed by diplomats nowadays…”[4]

Researching by the Australian Aborigine and tribes in the Americas, Africa, and Asia discover that the system of privileges and immunities was functioning so that the messenger or envoy was protected with taboo. There was the practice that the ruler for couriers and messengers elected his relatives so that an attack on an envoy was interpreted as a direct attack on the ruler because the envoy was his blood.

Athenian historian Thucydides (460 – 400 BC) described the diplomatic practice in ancient Greece. “…Then it had already emerged that diplomats, as we must call these Athenian delegates, enjoyed some protection and were afforded rights which other visitors from Athens are unlikely to have been granted..."[5]

Middle Ages is the period of European history encompassing the period from the 5th to the 15th centuries in which diplomatic praxis continued with sending messengers and special missions. A messenger had possessed a special status because he was chosen by the ruler as confident, mostly ruler’s relatives or reputable men of the tribe or community. The ruler of the receiving State gave special honors to messenger showing respect to the ruler of the sending State and wanted that the messenger gets positive impressions about the place where the ruler lives, especially about his power and influence.

Although it was recorded that Venice accredited the first permanent envoy by Byzantine Empire in 1140, a new era of permanent envoys in a foreign country and the development of modern diplomatic practice is associated with the Renaissance and the Italian city-states, which were linked by common interests and fierce rivalries. The first recorded permanent mission was established at Genoa in 1455[6]. From this time, the diplomatic practice primarily based on receiving and sending messengers and ad-hoc missions had started to develop in the new practice of permanent diplomatic missions. The aristocratic rank of diplomats and dangerous conditions of distant voyages contributed to the special status of diplomats from which had developed a modern approach to diplomatic privileges and immunity. Representatives of the State were legates, orators, nuncios, commissars, procurators, agents or ambassadors. Ambassadors were representing the sovereign himself. That meant that ambassadors contacted only the persons of royal blood and those who were related to the royal families using any opportunity to highlight the power of their sovereign, what determined their privileged position in the receiving State.

Further increase in the number of States and accordingly the number of permanent diplomatic missions and diplomats requested a regulation of their status and rank. First international conference on the status of diplomatic agents was the Congress of Vienna in 1815. „...The Regulation of the Congress of Vienna was signed by the Congress on March 19, 1815. It dealt with the classification of diplomatic agents and the meaning of their different ranks and was the earliest attempt at multilateral codification of diplomatic law. As regards immunity it only contained provisions as far as heads of missions were concerned. In spite of being signed by only eight European powers, the Regulation soon became generally accepted, evolving into international custom and later into international customary law…"[7] In the Pan-American Havana Conference in 1928 (Convention regarding Diplomatic Officers, 20 February 1928), immunities and privileges of diplomatic agents were codified, but the Havana Convention has not influenced practice either in its terminology or its rules. The status of diplomats, the permanent diplomatic missions and the functions they performed have been codified in details into the Vienna Convention on Diplomatic Relations signed in Vienna on 18 April 1961. The Vienna Convention on Diplomatic Relations came into force on 24 April 1964. This Convention constitutes the starting point for any discussion of contemporary practice on diplomatic privileges and immunities. Now almost universally accepted, it continues to grow in authority[8], and the analysis of the diplomatic privileges and immunities in this work is focused on the provisions of the Vienna Convention on Diplomatic Relations.

Definition of Diplomatic Immunity

Diplomatic immunity is shield granted diplomats to perform their functions in the unfriendly framework. It is ensuring that diplomats cannot be arrested or prosecuted by the receiving State’s authorities. Diplomatic privileges and immunities guaranteed inter alia the personal inviolability of diplomats, inviolability of their residence, diplomatic mission’s premises, freedom of movement, freedom of communication and exemption from taxes and duties.

“…The distinction between an immunity and a privilege is not easy to define precisely, and the terms have often been used interchangeably, but in general a privilege denotes some substantive exemption from laws and regulations such as those relating to taxation or social security, whereas an immunity does not imply any exemption from substantive law but confers a procedural protection from the enforcement processes in the receiving State.”[9] There are also authors who claim that “…the words privileges and immunities could be used as synonyms…”[10]

Diplomats also enjoy privileges not necessary for the efficient performance of their functions. The receiving State gives them such privileges to make their stay as pleasant as possible. Such privileges are not based on international law than on courtesy.

Theories of Diplomatic Immunity

Theory of Personal Representation

The theory of personal representation identified the envoy with the sovereign to exempt him from the jurisdiction of the receiving State by the status of his master. An ambassador is authorized to represent the head of a sending State, whose sovereignty has to be respected. The principle of the inviolability of ambassador’s personality has been starting initially from the fact that the ambassador is a personal representative of the sovereign and has to be treated as the sovereign himself. Freedom of communication between sovereign of State and ambassador as his representative has to be guaranteed.

This theory was accepted in the Renaissance when the international relations are based on relations between the royal families. Diplomats served as a liaison between the dynasties and conduct personal relationships with the sovereign of State and their relatives. The monarch or sovereign or supreme authority of a sending State was sending abroad his relatives as diplomats. Diplomatic privileges and immunities were based on the fact that attack against diplomats has been understood as an attack against the ruler of the sending State himself because they have the same blood. In the 1600's, Cardinal Richelieu made significant changes in diplomatic theory and practice. After Cardinal Richelieu, the theory of personal presentation has lost attractiveness because diplomats formal have represented the head of State, but in their daily work, they followed the instructions of their governments.

Theory of Exterritoriality

The theory of exterritoriality, initially developed by Hugo Grotius, is based on the legal fiction that all acts performed in the embassy premises are regarded as being performed on the territory of the sending State. Second legal fiction is that diplomat abroad remains a civil servant of his own country, and he should be treated as he is not in the territory of the receiving State, but in the territory of the sending State. This theory explains the inviolability of diplomat’s personality, inviolability of mission premises, as well as inviolability of residences and property of diplomatic agents. Diplomatic asylum is based on the theory of exterritoriality.

However, this theory conflicts with the requirement codified in Article 41 of the Vienna Convention, which prescribed that diplomats must respect the local laws and regulations of the receiving State. The local law of the receiving State is not entirely excluded. For example, rent of the building or premises and contracts in connection with; employment of local nationals as staff in the embassy; payment of services and baying products; issuing of a driving license; requirement from diplomats to be part in contracts made according to the local law of the receiving State, etc. International Law Commission dismissed this theory following a similar rejection by the League of Nations Expert Committee[11]. Theory of exterritoriality could also hard explain inviolability of mission premises of international organizations.

The violence of exterritoriality principle in practice proved exterritoriality as a legal fiction: cultural revolutionaries breach in the UK Embassy in Beijing, the occupation of Belgian and Portuguese embassies in Kinshasa, breach of the Chinese embassy in Prague by the Soviet Army, etc.

Theory of Functional Necessity

The theory of functional necessity is based on the thesis that diplomats could successfully perform their functions abroad, only if they are protected with privileges and immunities in the receiving State. The theory has become more importance after Second World War because the number of States increased and accordingly also the diplomatic staff entitled to the privileges and immunities.

The Preamble of the Vienna Convention states that "...the propose of privileges and immunities is not to benefit individuals, but to ensure the efficient performance of the functions of diplomatic missions as representing State..."[12] It made clear that the principle of functional necessity is the fundamental principle for diplomatic privileges and immunities in the Vienna Convention.

Diplomatic Immunity under International Law

Before the Vienna Convention on Diplomatic Relations of 1961, there were attempts to codify the issue of the diplomatic privileges and immunities, but these attempts have remained incomplete, either regarding results or covered areas.

The rules and practices concerning diplomatic privileges and immunities of envoys of the States were at the beginning developed as customary law. The Statute of the International Court of Justice defines international custom “…as evidence of a general practice accepted as law…”[13] The general practice is the constant practice followed by States without legal obligation. Such practice is expressed in several ways as, for example, in the final acts of international conferences, the decisions of international and national courts, etc. The Vienna Convention on diplomatic relations affirmed “…that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the present Convention…”[14]

The Congress of Vienna 1815 had adopted the rules of precedence and rank among the envoys. The Regulation of Congress of Vienna was “…supplemented by Protocol signed at Aix-la-Chapelle in 1818 dividing envoys into four classes…Precedence was henceforth governed by classes and within classes, by seniority of appointment at the particular capital…”[15] The historical significance of the Regulation was that by establishing only three classes of envoys and providing that in each class, precedence should be determined by the date of official notification of arrival. It significantly reduced both disputes over precedence and proliferation of ranks of the head of mission[16].

The League of Nations granted some privileges to the representatives of the Member States as well as specific privileges and immunities to its officials. “…The League of Nations examined the matter between the 1924 and 1928, but apart from collecting material regarding state practice, did not pursue its inquiries beyond the level of an expert committee…”[17] The Memorandum of the Secretariat of the League of Nations Diplomatic Intercourse and Immunities contained all that was considered the issue. There was the big debate in this period because officials of the League of Nations had a more privileged position than diplomats, even in their own country.

Member States of the Sixth Inter-American Conference in Havana adopted in 1928 the Convention regarding Diplomatic Officers (February 20, 1928). The Havana Convention set out that the “…diplomatic officers shall be inviolate as to their persons, their residence, private or official, and their property….” “…No judicial or administrative functionary or official of the State to which the diplomatic officer is accredited may enter the domicile of the latter, or of the mission, without his consent…”[18] Under Article 18 of the Havana Convention is granted for diplomatic officers the exemption of all personal and land taxes, all customs duties on articles intended for the official use of the mission, or for the personal use of the diplomatic officer and his family. Diplomatic officers are exempted under Article 19 from all civil or criminal jurisdiction of the receiving State. Persons enjoying immunity from jurisdiction may refuse to appear as witnesses before the territorial courts under Article 21. Under Article 22, diplomatic officers enter upon the enjoyment of their immunity from the moment they pass the frontier of the State where they are going to serve and make known their position.

The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents was adopted by the United Nations General Assembly on 14 December 1973. This Convention is known as Protection of Diplomats Convention and entered into force on 20 February 1977. On the 3 October 2012, the Convention had 174 State Parties. The key provisions of the Convention require that the “…offences, including threats, attempts, and participation as an accomplice, shall be made crimes under the international law of each State Party and jurisdiction over them is required to be taken on a very wide basis…”[19]

The Convention on Special Missions was adopted by the United Nations General Assembly on 8 December 1969 and entered into force on 21 June 1985. The Convention had 38 States Parties in April 2012. Messengers, ad hoc diplomacy, and special missions are the oldest form of diplomacy and only one before permanent diplomatic missions. Special missions are also sent nowadays for a specific purpose. The Convention on Special Missions covers “…itinerant envoys, diplomatic conferences and special missions sent to a State for limited purposes…”[20] Articles 9, paragraph 2, 19, and 21 to 49 deal with the privileges and immunities of the special mission with minor modification comparing with the provisions of the Vienna Convention on Diplomatic Relations from 1961.

The international organizations as the United Nations or regional international organizations perform their functions on the territory of their State Parties. Officers of an international organization also have the privileges and immunities granted under conventions, multilateral treaties or bilateral agreement. Officers employed by the United Nations have the privileges and immunities granted by the General Convention on the Privileges and Immunities of the United Nations adopted 1946 and the Convention on the Privileges and Immunities of Specialized Agencies adopted in 1947. Their guarantee immunity from detention, protection of documents and courier baggage, exemption from registration set for foreigners and have the similar immunities which have diplomats referred to the Vienna Convention on Diplomatic Relations.

Diplomatic Immunity under the Vienna Convention on Diplomatic Relations

The General Assembly of the United Nations established the International Law Commission (ILC) with the resolution no. 174 on the 21 November 1947. The General Assembly expressed “…its desire for the common observance by all governments of existing principles and rules and recognized practice concerning diplomatic intercourse and immunities, particularly in regard to the treatment of diplomatic representatives of foreign States…”[21] and considered “…that early codification of international law on diplomatic intercourse and immunities is necessary and desirable as a contribution to the improvement of relations between States…”[22] In the same resolution, the General Assembly requested the ILC “…as soon as it considers it possible, to undertake the codification of the topic Diplomatic intercourse and immunities, and to treat it as a priority topic…”[23] The ILC had started to work on the issue, and the draft of the Convention was adopted at its ninth session in 1957. 81 States adopted the Vienna Convention on the Diplomatic Relations at the United Nations Conference on Diplomatic Intercourse and Immunities held in Vienna from 2 March to 14 April 1961 and entered into force on 24 April 1964.

The Vienna Convention is based on the codification of the so far existing rules of the customary law, accepting of codified rules in the Congress of Vienna from 1815, Aachener Protocol from 1818, the Pan-American Havana Conference from 1928, as well as the introduction of the new rules that were acceptable to the most states.

The diplomatic privileges and immunities are not directly defined under the Vienna Convention, but they are specified under a series of articles of the Convention. In the Vienna Convention privilegs and immunities are mentioned as: the person of a diplomatic agent is inviolable, and the receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity (Article 29); a diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction with some exceptions regarding civil and administrative jurisdiction (Article 31); a diplomatic agent is not obliged to give evidence as a witness (Article 31); with exceptions defined under Article 34 a diplomat is exempted from all dues and taxes, personal or real, national, regional or municipal (Article 34); articles for the official use of the mission and articles for the personal use of a diplomatic agent are exempted from all customs duties, taxes, and related charges duties and customs control (Article 36).

Persons entitled to Privileges and Immunities

Diplomatic Staff of the Mission

Article 1 of the Vienna Convention provides definitions necessary for interpretation and application of the Convention. The general practice is that the members of the diplomatic staff of the mission have the same privileges and immunities enjoyed by the head of the mission, who is himself the member of the diplomatic staff of the mission. The diplomatic agent is the head of the mission or a member of the diplomatic staff of the mission.

The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36[24]. Usually, members of the diplomatic staff of the mission, who will remain in a foreign country a few years or more, doing their duties, are accompanied by their wives, children, relatives, and servants. The members of diplomatic staff of the mission enjoy absolute privileges and immunities. Based on current practice their family members and the members of their household should also enjoy the same privileges and immunities if they are not nationals of the receiving State. There are no established criteria for determining who is a family member or what a certain age is limited for children. Spouses and minor children are universally recognized as members of the family, but some relatives may also be qualified as family members if they are part of the household. Taking into account the cultural differences and different views what the family could imply, it would be hard to find an acceptable definition what family is. The usual practice considers a spouse and minor child as a family member but left open the question whether the family member could be a spouse living separately, in another country, or a child who is studying or working away from the parent's apartment, with their income, or unmarried partners, etc. Usually, in practice, every case of this kind should be solved individually, through negotiations between the ministry of foreign affairs and diplomatic mission.

Article 42 of the Convention prohibited to a diplomatic agent any practice for the personal profit of any professional or commercial activity. Members of the diplomatic agent’s family enjoy privileges and immunities, and they cannot in principle work in the receiving State because work for companies in the receiving State involves a series of the contractual obligations incompatible with the privileges and immunities. However, some countries allow the employment of spouses of diplomats. The common practice is that the receiving and sanding State conclude a bilateral agreement, which regulates the status of family’s members of the diplomatic agent if they compete for work in the free market. Such a bilateral agreement contain exclusions of immunity and the tax privileges because they can be not exempt from taxes, duties, social security, etc.

The Non-Diplomatic Staff of the Mission

The members of the administrative and technical staff, the service staff, and the private servants have limitations regarding the privileges and immunities compared with the members of the diplomatic staff of the mission.

There had been no consistent practice of States before the Vienna Convention regarding various categories of persons who do not have diplomatic rang and as the mission staff should enjoy some privileges and immunities. Some countries respected privileges and immunities for the administrative and technical staff of the mission, and some included the service staff and servants in the category of the privileged persons. The Vienna Convention set up a general and uniform rule based on reasonable and necessary.

The expresion the administrative and technical staff of mission includes the translators, technical secretary, financial, technical and officers in charge of security, etc. The administrative and technical staff of the mission benefits privileges and immunities specified in Articles 29 to 35 with limitations. Immunity from the civil and administrative jurisdiction of the receiving State specified in Article 31 of the Convention was not extended to the activities of the members of administrative and technical staff performed them outside of their duties. It is difficult to determine in practice whether something is done "... outside the course of their duties..." The Convention did not exactly define who determines whether an act is performed outside the course of their duties or not. The limited scope of the immunity and privileges for the administrative and technical staff of the mission is a compromise between two positions. One position is that the function of the diplomatic mission shall be considered as a whole, where any member of mission’s staff has the specific role. Administrative and technical staff such as ambassador's secretary or archivist can be involved more in the confidential information, then a member of the diplomatic staff. This confidential information must be protected from possible actions by the authorities of the receiving State[25]. On the other hand, the status of an ambassador and ambassador's technical secretaries could not be equated. The compromise was to give limited privileges and immunities to the administrative and technical staff of the mission.

Members of the service staff of the mission include embassy drivers, cooks, gardeners, doorkeepers, and cleaners[26]. Unlike private servants, member of the service staff of the mission is employed by the sending State, and not by a member of the mission. Members of the service staff of the mission enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive because of their employment and the exemption contained in Article 33 of the Convention[27]. The receiving State can give freely, in its discretion, additional privileges and immunities to this category of staff.

Private servants of members of the mission enjoy privileges and immunities only to the extent admitted by the receiving State. They are exempt from dues and taxes on the emoluments they receive because of their employment[28]. Inviolability of premises of the mission and residence of diplomat request the receiving State to exercise its jurisdiction over those persons in such a manner “…as not to interfere unduly with the performance of the functions of the mission…”[29]

Persons Who Are Citizens of the Receiving State or Who Are Resident in the Receiving State

From the historical point of view, there was no unique practice of granting privileges and immunities to the members of the diplomatic staff of mission who has the citizenship of the receiving State or who are permanently resident in the receiving State. For example, an appointment of the nationals of the receiving State as an ambassador of the sending State conflicts with the theory of personal representation. From the other point of view, a diplomatic agent who is a national of or permanently resident in the receiving State enjoys at least a minimum of privileges and immunities what will allow him to perform his duties successfully. It is “…immunity from jurisdiction, and inviolability, in respect of official acts performed the exercise of his functions…”[30]

The members of the administrative and technical staff, official and private servants, who are nationals of the receiving State or permanently resident in the receiving State, can enjoy privileges and immunities only “…to the extent admitted by the receiving State…”[31] The receiving State must exercise its jurisdiction in such a manner “…as not to interfere unduly with the performance of the functions of the mission…”[32]

In the text of the Vienna Convention is not defined the term permanent resident and “…no power is given either to the receiving State or to the sending State to determine unilaterally which members of a diplomatic mission are to be classed as permanent resident in the receiving State…”[33] Usually, a permanent resident is a person having his place of residence in the receiving State for a long time before the time of employment in the diplomatic mission. One criterion could be resident visa of the receiving State. If any problematic case arises, it needs to be resolved in negotiations between the receiving and sending State[34].

[...]


[1] Heinz L. Krekeler, Die Diplomatie, München: Günter Olzog Verlag 1965, p. 98

[2] Vienna Convention on Diplomatic Relations, 1961, Preamble, PP2, http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf, download 10 Juli 2012

[3] Linda S. Fray, Marsha L. Frey, The History of Diplomatic immunity, The Ohio State University Press, 1999, p. 12

[4] Harold Nicolson, Diplomacy, London New York Toronto: Oxford University Press, 1963, p. 17

[5] Sir Ernest Satow, Satow's Guide to Diplomatic Practice, London: Longman, 1979, p. 7

[6] Ibid. Nicolson, Diplomacy, p. 30

[7] Monika Lozancic, Diplomatic and Consular Immunities from National Jurisdiction in Criminal Cases, Master thesis, Faculty of Law, University of Lund, 2009, p. 25

[8] Grant V. McClanahan, Diplomatic ImmunityPrinciples, Practices, Problems, St. Martin’s Press, New York, 1989, p. 44

[9] Sir Ernest Satow, Satow's Guide to Diplomatic Practice , London: Longman, 1979, p. 121

[10] Michael Hardy, Modern Diplomatic Law, Munchester University Press, Manchester, 1968, p. 9

[11] Ibid. Hardy, p. 10

[12] Ibid. Viena Convention, Preambles

[13] The Statute of the International Court of Justice, Article 38 paragraph 1 b), http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_II, downloaded 23 September 2012

[14] Ibid. Vienna Convention, Preambles

[15] Ibid. Hardly, p. 22

[16] Denza Eileen, Diplomatic Law-A commentary on the Vienna Convention on Diplomatic Relations, Oxford: Oxford University Press , 1998, p. 90

[17] Ibid. Hardly, p. 22

[18] The Convention regarding Diplomatic Officers, Article 16

[19] Ibid. Denza, p. 215

[20] Yearbook of the International Law Commission 1958, vol. II, 89

[21] A/RES/685(VII), General Assembly, 400th plenary meeting, 7th session, 5 December 1952

[22] Ibid. A/RES/685(VII), General Assembly, 5 December 1952

[23] Ibid. A/RES/685(VII), General Assembly, 5 December 1952

[24] Ibid. Venna Conventions, Article 37

[25] Ibid. Denza, p. 331

[26] Ibid. Denza, p. 337

[27] Ibid. Vienna convention, Article 37, Paragraph 3

[28] Ibid. Vienna convention, Article 37, Paragraph 4

[29] Ibid. Vienna Convention, Article 37, Paragraph 4

[30] Ibid. Vienna Convention, Article 38, 1

[31] Ibid. Vienna Convention, Article 38, 2

[32] Ibid. Vienna Convention, Article 38, 2

[33] Ibid. Denza, p. 344

[34] Ibid. Denza, p. 344

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Details

Title
The Appropriate Scope of Diplomatic Immunity
Course
Master of International and European Public Law
Grade
1,7
Author
Year
2013
Pages
61
Catalog Number
V377818
ISBN (eBook)
9783668569805
ISBN (Book)
9783668569812
File size
725 KB
Language
English
Tags
Diplomatic, Immunity, Diplomacy, diplomat, law, international law, public law
Quote paper
Mirza Pasic (Author), 2013, The Appropriate Scope of Diplomatic Immunity, Munich, GRIN Verlag, https://www.grin.com/document/377818

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