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Published online by Cambridge University Press: 19 November 2020
This article explores the scope and nature of diplomatic immunity ratione materiae under the Vienna Convention on Diplomatic Relations (VCDR) by comparing this immunity with state immunity and immunity ratione materiae of ordinary state officials in general international law. It is argued that diplomatic immunity ratione materiae is distinct from immunity ratione materiae of ordinary state officials because ‘functions’ of a mission member should not be treated as ‘state functions’ in general but should be understood within the framework of Article 3(1) of the VCDR, which sets out the functions of a diplomatic mission as a whole. This means that the immunity cannot be upheld for serious violation of international law. On the other hand, diplomatic immunity ratione materiae is also different from state immunity both in scope and in nature. Therefore, the immunity must be understood as a unique concept which includes both the substantive issue of non-personal-liability and the procedural issue of immunity from jurisdiction. This hybrid nature of diplomatic immunity ratione materiae is the corollary of the functional emphasis of the Vienna Convention.
This research is supported by the Chinese National Social Science Fund Project ‘Establishing a Theoretic System of Immunity of State Officials from Foreign Civil and Criminal Jurisdiction’ (Grant No. 20CFX079). I would like to thank the anonymous reviewers for their insightful comments on early drafts of the article. All remaining errors are my own.
1 D. Akande and S. Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’, (2011) 21 EJIL 815; R. van Alebeek, ‘National Courts, International Crimes and the Functional Immunities of State Officials’, (2012) 59 NILR 5; A. Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, (2002) 13 EJIL 853; M. Frulli, ‘On the Existence of A Customary Rule Granting Functional Immunity to State Officials and Its Exceptions: Back to Square One’, (2015) 26 Duke Journal of Comparative and International Law 479.
2 See commentary to Art. 2(1)(b)(v) of the Draft Articles on Jurisdictional Immunities of States and Their Property, 1991 YILC, Vol II (Part Two), at 18. See also, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, [2008] ICJ Rep. 177, at 242, para. 188; H. Fox, The Law of State Immunity (2008), at 708–9.
3 Samantar v. Yousuf, 560 U.S. 305 (Sup.Ct. 2010); Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet Ugarte (No. 3) [2000] 1 AC 147. Cf. Jones v. Saudi Arabia [2006] UKHL 26.
4 Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Case No. IT-95-17/1-T, Appeals Chamber, 29 October 1997, para. 38; Akande and Shah, supra note 1, at 826; Cassese, supra note 1, at 863.
5 Alebeek, supra note 1, at 36; Cassese, ibid., at 864.
6 1961 Vienna Convention on Diplomatic Relations, 500 UNTS 95 (hereafter VCDR).
7 Fox, supra note 2, at 709; R. O’Keefe, International Criminal Law (2015), at 453; H. F. van Panhuys, ‘In the Borderland between the Act of State Doctrine and Questions of Jurisdictional Immunities’, (1964) 13 ICLQ 1193, at 1206.
8 C. J. Lewis, State and Diplomatic Immunity (1990), at 2; I. Brownlie, Principles of Public International Law (1998), at 361; Y. Dinstein, ‘Diplomatic Immunity from Jurisdiction Ratione Materiae’, (1966) 15 ICLQ 76, at 83; M. Buckley, ‘The Effect of the Diplomatic Privileges Act 1964 in English Law’, (1965) 41 BYIL 321, at 351.
9 Aust, A., Handbook of International Law (2010), at 136; Roberts, I. (ed.), Satow’s Diplomatic Practice (2009), at 139Google Scholar.
10 See commentary to Art. 18 of the Harvard Draft Convention on Diplomatic Privileges and Immunities, (1932) 26 AJIL 15, at 99 (hereafter Harvard Convention). See also Dinstein, supra note 8, at 79.
11 VCDR, supra note 6, Art. 39(2).
12 Ibid., Art. 38(1).
13 Ibid., Art. 37(2) and (3).
14 Ibid., Art. 31(1)(a) and (b).
15 Ibid., Art. 31(1)(c).
16 See infra notes 26 and 27.
17 The formulae ‘on behalf of the sending State’ and ‘official acts performed in the exercise of functions’, provided for under Article 31(1)(a) and (b) and Article 38(1) respectively, are clearly captured by the formula ‘in the exercise of functions’ and will thus be examined in subsequent sections.
18 S. Roberts, ‘Australian Practice in International Law (1995)’, (1996) 17 AYIL 345, at 381 (emphasis in original). Silva also seems to hold a similar view when he says that the difference between the duties of administrative and technical staff and that of service staff ‘lies in the nature of their functions’: G. E. D. N. Silva, Diplomacy in International Law (1972), at 146.
19 VCDR, supra note 6, Preamble.
20 As the ICTY Appeals Chamber indicated in Blaskic, ‘customary international law protects the internal organization of each sovereign state: it leaves it to each sovereign state to determine its internal structure and in particular to designate the individuals acting as state agents or organs. Each sovereign state has the right to issue instructions to its organs, both those operating at the internal level and those operating in the field of international relations … The general rule has been implemented … primarily with regard to … the fight of a state to demand for its organs functional immunity from foreign jurisdiction’. Blaskic, supra note 4, para. 41.
21 1957 YILC, Vol I, at 128, para. 67 (Sandström), para. 70 (Spiropoulos), para. 65 (Fitzmaurice), para. 69 (Yokota).
22 1963 Vienna Convention on Consular Relations, 596 UNTS 261, Art. 1(1)(e) (hereafter VCCR).
23 See, for example, ‘India Expels Pakistani Embassy Worker for Espionage’, Agence France Presse, 25 October 2006; E. A. Roy, ‘US Diplomat Ejected from New Zealand after Police Fail to Get Immunity Waived’, Guardian, 19 March 2017.
24 M. N. Leich (ed.), Cumulative Digest of United States Practice in International Law (1981-1988) (1993), at 914.
25 For bilateral agreements concluded between the US and other states see ibid., at 1047, 1164–8. For British practice see L. Frey and M. Frey, The History of Diplomatic Immunity (1999), at 490.
26 Brownlie, supra note 8, at 361–2; J. Salmon, Manuel de Droit Diplomatique (1994), at 391, 437; C. A. Whomersley, ‘Some Reflections on the Immunity of Individuals for Official Acts’, (1992) 41 ICLQ 848, at 853–4; C. E. Wilson, Diplomatic Privileges and Immunities (1967), at 161.
27 J. Brown, ‘Diplomatic Immunity: State Practice Under the Vienna Convention on Diplomatic Relations’, (1988) 37 ICLQ 53, at 77; Roberts, supra note 9, at 165; E. Denza, Diplomatic Law: Commentary on the Vienna Convention on the Diplomatic Relations (2016), at 333.
28 1957 YILC, Vol I, at 133, para. 53 (Ago).
29 Ibid., at 130, para. 9 (Bartos).
30 Ibid., at 133, para. 53 (Ago).
31 Ibid., at 133, paras. 57, 59 (Bartos).
32 UN Doc. A/CONF.20/L.13 and Add.l, at Official Records of the United Nations Conference on Diplomatic Intercourse and Immunities, Vol II, at 77.
33 UN Doc. A/CONF.20/L.9/Rev.l, ibid., at 76–7.
34 Official Records of the United Nations Conference on Diplomatic Intercourse and Immunities, Vol I, at 32, paras. 40, 44.
35 UN Doc. A/CONF.20/L.21 and Add.2, at Official Records of Diplomatic Conference, supra note 32, Vol II, at 78.
36 Official Records of Diplomatic Conference, supra note 34, Vol I, at 39, para. 37 (Soviet Union); at 47–8, para. 8 (Vietnam).
37 Ibid.
38 1989 YILC, Vol II (Part Two), at 30, paras. 6–7.
39 J. R. Crawford, Brownlie’s Principles of Public International Law (2012), at 408. Denza’s position is less clear in this respect. In the context of Art. 31(1)(c) of the VCDR, which provides that a diplomat does not enjoy immunity for commercial or professional activity performed ‘outside his official functions’, Denza takes the view that a diplomat’s functions should be broader in scope than Art. 3(1) and encompass any superior instruction as long as such instruction does not exceed the ‘bounds of proper activity’. In the context of Art. 39(2), however, she states that reference should be made to Art. 3(1): Denza, supra note 27, at 254, 364.
40 Salmon, supra note 26, at 465. For a discussion of the applicability of rules of attribution of state responsibility for the determination of diplomatic immunity ratione materiae see X. Shi, ‘Official Acts and Beyond: Towards an Accurate Interpretation of Diplomatic Immunity Ratione Materiae under the Vienna Convention on Diplomatic Relations’, (2019) 18 Chinese Journal of International Law 669, at 678.
41 According to draft Arts. 2(f) and 6 provisionally adopted by the ILC in the project ‘Immunity of State Officials from Foreign Criminal Jurisdiction’, immunity ratione materiae protects acts performed ‘in the exercise of State authority’. The ILC explains that ‘State authority’ refers generally to ‘acts performed by State officials in the exercise of their functions’. UN Doc. A/71/10, at 355.
42 R. Higgins, ‘The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience’, (1985) 79 AJIL 641, at 641.
43 P (Diplomatic Immunity: Jurisdiction), Re, [1998] 2 FCR 525.
44 Ibid.
45 M. L. Nash (ed.), Digest of United States Practice in International Law 1978 (1980), at 537.
46 1957 YILC, Vol I, at 50, para. 63 (El-Erian), para. 71 (Zourek).
47 ILC commentary to the 1958 draft of Art. 3(1), 1958 YILC, Vol II, at 90.
48 Arab Republic of Egypt v. Gamal-Eldin, 104 ILR 673 (Employment Appeal Tribunal of England 1995).
49 Comments from states can be found at legal.un.org/ilc/guide/4_2.shtml#govcoms.
50 For an assessment of state practice see S. D. Murphy, ‘Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where Is the State Practice in Support of Exceptions?’, (2018) 112 AJIL Unbound 4.
51 C. E. Hernández, ‘Fifth Report on Immunity of State Officials from Foreign Criminal Jurisdiction’, UN Doc. A/CN.4/701, at 99.
52 For a summary of ILC debate see UN Doc. A/72/10. For a summary of debate at Sixth Committee see UN Doc. A/CN.4/713.
53 See, e.g., the statement made by the representative of Soviet Union, France, Tunisia, United Kingdom, United States, Hungary, Official Records of Diplomatic Conference, supra note 34, Vol I, at 80–1.
54 Following an amendment proposed by Mexico, UN Doc. A/CONF.20/C.1/L.33, at Official Records of Diplomatic Conference, supra note 32, Vol II, at 11. Explaining the amendment, the Mexican representative stated, inter alia, that ‘the Mexican amendment was intended not to alter but to clarify the concept’. Ibid., Vol I, at 80.
55 A similar situation can be found in the brutal killing of Saudi journalist Jamal Khashoggi in the Saudi consulate in Istanbul; see A. Callamard, ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions: Investigation into the unlawful death of Mr. Jamal Khashoggi’, UN Doc. A/HRC/41/CRP.1. For the jus cogens nature of the prohibition of torture see Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, [2012] ICJ Rep. 422, para. 99.
56 For the jus cogens nature of the prohibition of genocide see Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Judgment of 3 February 2006, [2006] ICJ Rep. 6, para. 64.
57 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 53.
58 See, on this point, Conclusion 42 of the ILC study on the Fragmentation of International Law, 2006 YILC, Vol II, Part Two, at 184, para. 42.
59 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, [2012] ICJ Rep. 99, para. 93. For the substantive aspect of diplomatic immunity ratione materiae see below Section 4.2.
60 Ibid.
61 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, [2002] ICJ Rep. 3, para. 60.
62 L. Dembinski, The Modern Law of Diplomacy: External Missions of States and International Organizations (1988), at 202–3.
63 Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (Sup.Ct. 1992), at 614.
64 See, for instance, commentaries to Art. 2(1)(b)(v) of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 1991 YILC, Vol II, Part Two, at 18, para. 18.
65 VCDR, supra note 6, Art. 38(1).
66 1957 YILC, Vol I, at 103, para. 64 (François).
67 Ibid., at 142, para. 35 (Matine-Daftary).
68 Abusabib v. Taddese, (2013) ICR 603, para. 31.
69 Ministère Public and Republic of Mali v. Keita, 77 ILR 410 (Court of Appeal of Brussels 1977), at 411–12.
70 For instance, authors dispute whether violation of traffic regulations can be covered by diplomatic immunity ratione materiae. Brownlie, supra note 8, at 361; cf. Denza, supra note 27, at 339.
71 VCCR, supra note 22, Art. 5(a), (c), (f), (g), (h), (i), (j), (m).
72 VCDR, supra note 6, Art. 41(1).
73 See above Section 3.1.
74 In a similar vein, editors of Oppenheim’s International Law point out that, whereas serious crimes are certainly not to be regarded as in the exercise of functions, ‘there is more room for doubt where lesser offences are concerned’: R. Jennings and A. Watts (eds.), Oppenheim’s International Law (1992), at 1145.
75 Reyes v. Al-Malki and another [2017] UKSC 61.
76 Swarna v. Al-Awadi, 622 F 3d 123 (US Court of Appeals 2010); Wokuri v. Kassam [2012] EWHC 105 (English High Court 2012).
77 Reyes, supra note 75, para. 4; Swarna, ibid., at 138.
78 For instance, in Benkharbouche v. Embassy of the Republic of Sudan, the UK Supreme Court held that customary international law does not recognize state immunity for employment of those mission staff who only perform subordinate duties: Benkharbouche v. Embassy of the Republic of Sudan, [2017] 3 WLR.
79 Papavassilopoulos v. Barone, Appeal Judgment, Case no 27044, ILDC 1343 (IT 2008) (Supreme Court of Cassation of Italy 2008); Rohitha v. Embassy of the Republic of Korea to the Holy See, Final Appeal Judgment, Case no 11848/2016, ILDC 2697 (IT 2016) (Supreme Court of Cassation of Italy 2016). The court also conflated consular immunity and state immunity in a recent case. Tedeschi v. Pullano, Final Appeal Judgment, Case no 2200/2016, ILDC 2696 (IT 2016) (Supreme Court of Cassation of Italy 2016). A similar approach was followed by the Supreme Court of Portugal. Fonseca v. Larren (Supreme Court of Portugal 1991), relevant part reprinted at Reyes v. Al-Malki, [2015] EWCA Civ 32 (Court of Appeal of the UK 2015), para. 27.
80 Sabbithi v. Al Saleh, 605 F Supp 2d 122 (US District Court of Colombia 2009). For the application of Section 1605 of the US Foreign Sovereign Immunities Act (concerning commercial activity exception) see Weltover, supra note 63.
81 As Lord Sumption pointed out in Reyes, ‘human agents have a corporeal vulnerability not shared by the incorporeal state which sent them’. Reyes, supra note 75, para. 28.
82 See, Reyes, supra note 79; Albert Brahimllari v. Consulate General of Greece in Korçë, Appeal Judgment, No 00-2011-2204 (569), ILDC 2508 (Al 2011) (Supreme Court of Albania 2011); Pfarr v. Anonymous, Appeal Judgment, 17 Sa 1468/11, ILDC 1903 (De 2011) (Higher Regional Court of Berlin 2011); Mohamed X v. Fettouma Z, 11/01255 Legifrance (Court of Appeal of Montpellier 2012); In the Marriage of M T and I J De Andrade, 19 Family Law Reports 271 (Family Court of Australia 1984); Decision of the Supreme Court of Czech Republic on 14 November 2013, Case no 22 Cdo 2537/2012, available at www.nsoud.cz/Judikatura/judikatura_ns.nsf/WebSearch/A67FCA1C3A641B0EC1257C31002060D1?openDocument&Highlight=0.
83 Reyes, supra note 75, para. 21. Art. 42 provides that ‘A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial activity.’
84 Ibid., para. 46.
85 Ibid., para. 62.
86 Ibid., para. 63–5.
87 Ibid., para. 66.
88 Denza, supra note 27, at 387. See also Lewis, supra note 8, at 131.
89 The attitude of the UK was mentioned, albeit briefly, during the House of Commons debate on 14 March 1986. See, HC Deb 14 March 1986 vol 93 c601W.
90 See, for instance, Artwohl v. United States, 56 ILR 518 (Court of Claims of United States 1970), which concerns several mission members of the US embassy in Brazil who made considerable profit from selling duty-free vehicles imported from the US to local citizens.
91 See, De Andrade, supra note 82, in which the Family Court of Australia briefly rejected the claim of the plaintiff that the purchase of a house as investment and the collection of rent from tenants are commercial activity under Art. 31(1)(c).
92 Tabion v. Mufti, 73 F 3d 535 (4th Cir 1996), at 537; Sabbithi, supra note 80, at 128.
93 Ibid.
94 Logan v. Dupius, 990 F Supp 26 (US District Court of Columbia 1997).
95 Jurisdictional Immunities of the State, supra note 59.
96 In his report on diplomatic immunities and privileges to the League of Nations, the Special Rapporteur pointed out that the exception of real property is ‘consistent with generally recognized custom’. M. Diena, ‘Report of the Sub-Committee on Diplomatic Privileges and Immunities’, League of Nations doc (C 196 M 70 1927 V), at 81.
97 Commentaries to Art. 29(1)(a) of the 1958 draft of the VCDR, 1958 YILC, Vol II, at 98, para. 5.
98 The legislation of Colombia, for example, excepted from diplomatic immunity only ‘actions in rem, including possessory actions, which relate to movable or immovable property situated within the territory’. ‘Laws and Regulations regarding Diplomatic and Consular Privileges and Immunities’, 7 UN Legislative Series (1958) 65. See also the legislation of India, Czechoslovakia, Austria, and Switzerland at 167, 82, 15, 308 respectively. For judicial decisions see, for example, Agostini v. De Antueno, 17 ILR 295 (District Court of New York 1950).
99 1955 YILC, Vol II, at 11–12, Art. 20(1)(a).
100 1957 YILC, Vol I, at 94, para. 5 (Tunkin).
101 Ibid.
102 Ibid., at 94, para. 13 (Pal).
103 Ibid., at 95, para. 23 (Sandström).
104 Ibid., para. 35 (Spiropoulos).
105 Ibid., para. 25 (Fitzmaurice).
106 Rahimtoola v. Nizam of Hyderabad and Another [1958] AC 379 (HL).
107 Ibid., at 380.
108 Ibid., at 412–13.
109 Ibid.
110 Commentaries, supra note 97.
111 Arab Republic of Syria v. Arab Republic of Egypt, (1982, Supreme Court of Brazil) 91 ILR 288.
112 Ibid.
113 UN Doc. A/CONF.20/C.1/L.221, at Official Records of Diplomatic Conference, supra note 32, Vol II, at 30.
115 Ibid., para. 34 (de Erice y O’Shea).
116 Abusabib, supra note 68, para. 31.
117 In Public Prosecutor v. A. d. S.F., the Supreme Court of Netherlands upheld the diplomatic immunity ratione materiae of a service staff member of the Italian Embassy who had driven under the influence of alcohol. For the court, the fact that driving a car may occur in the performance of the official duties of a servant means that ‘acts contrary to road traffic provisions are committed in the performance of such duties’. Public Prosecutor v. A. d. S.F. (1975), reprinted at L. A. N. M. Barnhoorn (ed.), ‘Netherlands Judicial Decisions Involving Questions of Public International Law, 1974 – 1975’, (1976) 7 NYIL 303.
118 Re Rissmann, (1970, Court of Cassation of Italy) 71 ILR 577
119 Ibid., at 581.
120 Harvard Convention, supra note 10, at 97, Art. 18.
122 ‘Codification of the International Law Relating to Diplomatic Intercourse and Immunities: Memorandum Prepared by the Secretariat’, UN Doc. A/CN.4/98, at 144.
123 1957 YILC, Vol I, at 99, para. 21 (Verdross).
124 For instance, the US representative pointed out that ‘if the local court decided the acts complained of were performed within the scope of their official duties, then consuls were not liable as a matter of substantive law’. The Italian representative also indicated that consular immunity means that ‘an individual was not personally responsible for acts performed in the exercise of his functions’. See Official Records of the United Nations Conference on Consular Relations, Vol I, at 374–5, paras. 34, 36.
125 Salmon, supra note 26, at 606 (translation).
126 Brownlie argues that cases in this respect are in fact a matter of ‘inadmissibility’ or ‘non-justiciability’ rather than immunity from jurisdiction. Proceedings regarding these acts would be unable to proceed even if immunity does not exist. Brownlie, supra note 8, at 326.
127 VCDR, supra note 6, Art. 41(1).
128 1957 YILC, Vol I, at 218, para. 41 (Tunkin). See also, at 218, para. 42 (HSU); at 219, para. 52 (Liang); para. 43 (The Chairman); para. 47 (El-Erian).
129 1958 YILC, Vol II, at 104.
130 In its report on the abuse of diplomatic immunity, the UK Foreign Affairs Committee surveyed serious offences committed by persons enjoying diplomatic immunity in the past ten years and concluded that the percentage of misbehaving diplomatic staff ‘is in fact very small’. The Abuse of Diplomatic Immunities and Privileges, 1984/85 HC 127, para. 41.
131 See, for example, the Abisinito incident, which concerned the residual immunity of former ambassador of Papua New Guinea to the US for drunk-driving which resulted in a serious traffic accident. Leich, supra note 24, at 997–9.
132 E. Denza, ‘Ex Parte Pinochet: Lacuna or Leap?’, (1999) 48 ICLQ 949, at 952.
133 Article 26 of the convention provides that diplomatic privileges and immunities can be waived by the sending state. But immunity for official acts is not deemed by the convention as pertaining to diplomatic privileges or immunities stricto sensu. Harvard Convention, supra note 10, at 99.
135 Referring to the Harvard Draft Convention, Amado said at one point that ‘the question [of waiver] did not relate solely to immunity from jurisdiction’. But he did not push this issue further. At a later stage, Zourek briefly mentioned that, with respect to waiver, ‘a distinction should be made between acts carried out in the discharge of diplomatic functions and those which were not’. 1957 YILC, Vol I, at 111–12, paras. 30, 52.
136 Waiver of immunity invariably occurs in disputes concerning private acts or private incidental acts. See, for example, M. E. Vandenberg, ‘Diplomats Who Commit Domestic-Worker Crimes Shouldn’t Get a Free Pass’, Washington Post, 1 January 2014; D. Campbell, ‘Thai Diplomat Smuggled Heroin’, Guardian, 24 June 1992.
