sovereign immunity: state & diplomatic immunity peter d. maynard

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Sovereign Immunity: State & Diplomatic Immunity Peter D. Maynard

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Page 1: Sovereign Immunity: State & Diplomatic Immunity Peter D. Maynard

Sovereign Immunity: State & Diplomatic

Immunity Peter D. Maynard

Page 2: Sovereign Immunity: State & Diplomatic Immunity Peter D. Maynard

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Dominique Strauss-Kahn (DSK)

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Former Managing Director of the International Monetary Fund, Dominique Strauss-Kahn, had only functional immunity and was not able to invoke diplomatic immunity when he was arrested in New York in 2011 on criminal charges of trying to rape, Nafissatou Diallo, a Guinean hotel maid.

In the civil case, Judge Doug McKeon, Bronx Supreme Court, rejected DSK’s claim that he was entitled to diplomatic immunity on the grounds that: (1) IMF officials do not fall within the status/absolute immunity protections of the Vienna Convention on Diplomatic Immunities 1961, as parties are only states, not IOs; (2) the U.S. is not a party to the Specialized Agencies Convention 1947, which lays out privileges and immunities of officials of certain international organizations; (3) the Specialized Agencies treaty does not represent customary international law of IO immunities; (4) even if the Specialized Agencies treaty were applicable, the scope of immunities for IMF officials is limited under an annex to that agreement by the Bretton Woods Agreement and IMF Articles, which specifically limit immunity only to official acts. DSK could not rely on official acts/functional immunity since he was not carrying out official duties during his visit to the Sofitel.

Page 4: Sovereign Immunity: State & Diplomatic Immunity Peter D. Maynard

Abuse of Indonesian maid Dewi Ratnasari (pseudonym) in Berlin, Germany. Saudi ambassador claimed diplomatic immunity, 2011. Worked 18 months, paid only once –150 euros during Ramadan. Not only did she have to work late into the night, but she never got a vacation. Slept on the floor, called “Nila” (Arabic for excrement). Recovered 6,000 euros back pay. Result unknown, but probably blocked by diplomatic immunity.

Beatings instead of wages

No immunity for human rights violations? Lex ferenda (“future law”)?

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Page 5: Sovereign Immunity: State & Diplomatic Immunity Peter D. Maynard

Can you spot what’s wrong with this Monopoly card?

We’ll return to it and DSK at the end.

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Page 6: Sovereign Immunity: State & Diplomatic Immunity Peter D. Maynard

Learning Objectives:Through this session, you should gain a basic understanding of• Nature of immunity• State immunity & diplomatic immunity distinguished

• State Immunity• Sovereignty and the par in parem principle

• Acts jure imperii vs acts jure gestionis• State immunity by statute & at common law• The sovereign state and related officials

• Diplomatic Immunity• Vienna Convention on Diplomatic Relations 1961• Inviolability and protection of Mission premises and

diplomatic bag• Categories of persons entitled to diplomatic protection• Duration & waiver • Abuse of diplomatic immunities

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Glossary• Immunity = not impunity, merely a procedural bar to proceedings• Diplomat = person appointed by a state to conduct international relations

with other states or international organizations.• Consul = an official appointed by a state to live in a foreign city and protect

the state's citizens and commercial interests.• Jure imperii = “by right of dominion”, sovereign or public acts of state

attracting immunity from the jurisdiction of foreign courts. • Jure gestionis = “by right of management”, commercial transactions, by

ordinary persons and bodies that are owned or controlled by the state. Under the restrictive theory, the state cannot claim immunity.

• Rationae personae = “by reason of the person”, the court's authority or lack of authority to hear a particular case because it involves the head of state, head of government or foreign minister.

• Rationae materiae = “by reason of the subject-matter”, official acts or functional immunity, the court's authority or lack of it to hear a particular case

• Lex lata = "the law as it exists“, current law.• Lex ferenda = "future law“, what the law ought to be, soft law.

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Rationae personae or materiaeRationae personae• Under international customary law, serving heads of state, heads of

government and foreign affairs ministers enjoy total immunity ratione personae from foreign criminal prosecution, for acts performed privately or officially, before or during their term of office. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ Reports 2002, paras. 51-61, specially paras. 54-55.

Rationae materiae (also called ‘official acts or functional immunity’) • All “representatives of the state acting in that capacity” enjoy

immunity ratione materiae for the acts so performed, even if they have acted ultra vires. United Nations Convention on Jurisdictional Immunities of States and their Property, 2005, art. 2 (1), b) iv).

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Par in parem non habet imperium:3 major immunity types and treaties

1. State United Nations Convention on Jurisdictional Immunities of States and their Property, 2005

2. Diplomatic Vienna Convention on Diplomatic Relations, 1961

3. Consular United Nations Convention on Consular Relations, 1963

The underlying foundation principle: Par in parem non habet imperium = an equal has no power over another equal (Latin).

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1. State

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Old law: Absolute theoryPar in parem non habet imperiumSchooner Exchange v. McFaddon, US SCt, 1812 - 2 Americans, John McFaddon

and William Greetham, owned the Schooner Exchange. On a voyage from Baltimore to San Sebastian, Spain in 1810, Napoleon Bonaparte, Emperor of France seized the vessel, and armed it as a French warship under the name Balaou. The ship was forced to enter the port of Philadelphia owing to storm damage and bad weather conditions. Mc and G claimed that it should be prevented from leaving, and that they were entitled to it.

Marshall CJ: Foreign sovereign immune from suit. Under customary international law, a friendly warship entering a nation's port is exempted from that nation's jurisdiction. Vessel released.

Parlement Belge (1879) 4 PD 129 CA, A steamship owned and controlled by the King of Belgium and operated by the Belgian navy, carrying mail, passengers and freight, collided with a tug Daring. The owners of the Daring sued PB in rem for damages. Held: no jurisdiction. Brett LJ referred to the foreign sovereign’s dignity and absolute independence of any superior authority. Immune like warships even though carried cargo and passengers for hire.

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Under the restrictive, as opposed to the absolute, theory of foreign sovereign immunity, a state is immune from the jurisdiction of foreign courts as to its sovereign or public acts but not as to those that are private or commercial in character

Absolute theory, State is immune for

acts jure imperii and gestionis• Parlement Belge• Schooner Exchange v

McFaddon• The “purpose of the

transaction” test

Restrictive theory, State not immune for

acts jure gestionis• Claim against the

Empire of Iran• Primero Congreso del

Partido• Trendtex• The “nature of the

transaction” test 12

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What is the difference between the ‘purpose’ and ‘nature’ tests?• The ‘purpose’ test looks at the motive or function

of the act of state. Invariably the function will be political in some way, and thus the act will be entitled to immunity.• The ‘nature’ test looks at the character or type of

transaction, rather than its purpose. • ‘Nature’ test: Ask whether the transaction could

have been done by an ordinary private person, or only by a sovereign.

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Claim Against the Empire of Iran (1963) 45 I.L.R. 57, 80, • This decision of West German Constitutional Court, involved a dispute

between a local German firm and the Iranian Embassy regarding a bill for heating repairs to the Embassy. Was this a matter jure imperii or jure gestionis? Held: the nature of the transaction was the determining factor, not whether it was technically classifiable as a commercial one, or what the sovereign’s motive or purpose was.

• NB: All transactions, including commercial ones, involving a state will have some sovereign motive or purpose. Regarding the nature of a transaction, the Ct also indicated such things should be considered as (1) whether the transaction would be better classified falling within the public law rather than the private law of the adjudicating state and (2) whether it traditionally attracted sovereign immunity at international law eg, foreign affairs, military authority, the legislature, exercise of police authority, and the administration of justice. As a result, the Iranian Embassy was not allowed to plead sovereign immunity for its heating repairs bill.

• Cited in Primero Congreso [1983] 1 AC 244, 267 (HL)14

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Lex lata: Restrictive theory of state immunity

• Test for acts jure gestionis = Can you or ordinary persons carry out the same act? If so, it is jure gestionis and not entitled to immunity.

• If it can only be done by a sovereign, then it is an act jure imperii entitled to state immunity at common law.

• eg, ordering military boots?Trendtex v Central Bank of Nigeria, at 369. Ld Denning MR asked about a situation

where a state purchases boots for its army. Is this an act jure imperii or jure gestionis? If we apply the purpose test, the purchase must be a sovereign act, as the boots will be used for military purposes, which fall within actions jure imperii; But if we apply the nature test, the purchase is the character or type that could be undertaken by any ordinary buyer (we all buy shoes), and thus the act falls in the jure gestionis category.“It was suggested that the original contracts for cement were made by the Ministry of Defence of Nigeria: and that the cement was for the building of barracks for the army. On this account it was said that the contracts of purchase were acts of a governmental nature, jure imperii, and not of a commercial nature, jure gestionis. They were like a contract of purchase of boots for the army. But I do not think this should affect the question of immunity. If a government department goes into the market places of the world and buys boots or cement – as a commercial transaction – that government department should be subject to all the rules of the market place. The seller is not concerned with the purpose to which the purchaser intends to put the goods”.

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Trendtex v Central Bank of Nigeria [1977] 2 W.L.R. 356

• July 1975 the Central Bank issued an irrevocable letter of credit for over $14,000,000 in favour of Trendtx, a Swiss company, to pay for 240,000 tons of cement which Trendtex had sold to an English company. It was to be used to build government barracks. Trendtex shipped the cement to Nigeria but there was congestion in the port of discharge and the Central Bank declined to make payments claimed to be due for the price and for demurrage.

• By November 1975 the plaintiff claimed against the Central Bank for payments due in respect of the bank’s breaches and repudiation of the letter of credit. Mocatta J. granted T an injunction ordering the bank to retain $13,968,190 within the UK jurisdiction until the trial of the action or further order. Donaldson J., on the bank’s application, set aside the writ and stayed further proceedings in the action on the ground that the bank was a department of the State of Nigeria and was therefore immune from suit. T appealed.

• Held, allowing the appeal, (1) (per Stephenson LJ) that the bank, which had been created as a separate legal entity with no clear expression of intent that it should have governmental status, was not an emanation, arm, alter ego or department of the State of Nigeria and was therefore not entitled to immunity from suit.

• (2) That (per Lord Denning M.R. and Shaw L.J.) even if the bank were part of the Government of Nigeria, since international law now recognised no immunity from suit for a government department in respect of ordinary commercial transactions as distinct from acts of a governmental nature, it was not immune from suit on T’s claim in respect of the letter of credit.

• Per curiam. The modern principle of restrictive sovereign immunity in international law giving no immunity to acts of a commercial nature is consonant with justice, comity and good sense (pp. 367, 380, 385, 386B).

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Primero Congreso del Partido• 1⁰ Congreso Del Partido, [1983] 1 AC 244 (HL) uses the common law test of restrictive immunity

because the UK State Immunity Act 1978 was not in force at the time. 3 ships - 1⁰ Congreso, Playa Larga and Marble Islands - were owned by the Cuban government and were used by its state trading enterprises to deliver mainly sugar. The 3 state trading enterprises involved in the case were legally independent from the Cuban government under Cuban laws.

• After military coup by Pinochet, 2 of the sugar shipments that Cuba was sending to Chile on these vessels were not delivered. Playa Larga shipment was only partly offloaded, and the Marble Islands shipment was completely aborted and redirected to North Vietnam, as a result of Cuba’s reaction to the right wing coup. The Cuban government instructed its trading company (Mambisa) to order 1. the captain of the Playa Larga to stop unloading its cargo in Chile and return to Cuba, and 2. the captain of the Marble Islands, which at that moment was in the high seas on the way to Chile, to abandon the Chile stop and instead to proceed to North Vietnam and sell the sugar to another Cuban state trading enterprise (Alimport)

• Alimport subsequently donated the cargo to the North Vietnamese people. The 1⁰ Congreso was only involved in this case because Chile brought proceedings against her in rem for the contractual breaches by the other two vessels.

• Cuba invoked state immunity against all claims. The majority of the House of Lords did not allow Cuba to rely on sovereign immunity for either of these actions. The court’s reasoning followed the restrictive immunity approach and applied the ‘nature of the transaction’ test.

• HL applied the ‘nature’ test not only (1) to the contracts, but also (2) to the breaches themselves. Restrictive immunity was new ground at the time.

• Note that the purpose behind all of these acts was to punish Chile for a change of government, and that under the ‘purpose’ test, sovereign immunity would have been allowed.

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Primero Congreso cont’d• Lord Wilberforce examined the contracts and breaches regarding each shipment: • Playa Larga — Although the delivery of the Playa Larga’s cargo was halted for

political purposes, the purposes were insufficient for a defence of sovereign immunity because no sovereign powers had been exercised; Cuba did not invoke any sovereign authority, but instead acted through company managers and directors, in the same way a private person would.

• Marble Islands — Lord Wilberforce (in the minority here) would have allowed immunity because the acts by the trading company Mambisa—in delivering the sugar to Alimport another trading company to be given to the North Vietnamese people—were of a governmental, not a commercial nature.

• But the majority of the court, while agreeing on the law, disagreed with Lord Wilberforce regarding its application to the Marble Islands. Thus, Lord Diplock argued that all of the actions and the breach regarding the Marble Islands were done jure gestionis; Mambisa had re-routed the ship and taken it to North Vietnam and sold the cargo to Alimport. It was only after the cargo had been re-sold to Alimport that any governmental act, or act jure imperii, took place (i.e., the gift by Alimport to the North Vietnamese people).

• As a result, following the majority decisions, both the Playa Larga and the Marble Islands were not entitled to immunity.

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2. DiplomaticWell known that diplomatic bag is not to be searched or stopped.Art 27(3) The diplomatic bag shall not be opened or detained.

But, let us look at 10 other key provisions and scenarios under the VC on Diplomatic Relations 1961

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1. Hostilities: Duties of Host State • Art. 44 of the Vienna Convention on Diplomatic Relations provides that the

receiving state has a duty to help any diplomats out of the country in the event of hostilities:

Article 44 • The receiving State must, even in case of armed conflict, grant facilities in order

to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.

• Art. 39 provides for the continuance of immunities of diplomats, even in times of hostilities:

Article 39 • When the functions of a person enjoying privileges and immunities have come

to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

• Diplomatic and Consular Staff in Tehran. Events took place during a revolution and yet Iran was still found responsible for failing to protect diplomatic premises.

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2. Property of Embassy/Ambassador • Embassy property, furnishings and cars are protected under Art. 22(3),

or the Ambassador’s personal property, which is protected under Art. 30(2):

Article 22 1. The premises of the mission shall be inviolable. The agents of the

receiving State may not enter them, except with the consent of the head of the mission.

2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.

Article 30 4. The private residence of a diplomatic agent shall enjoy the same

inviolability and protection as the premises of the mission. 5. His papers, correspondence and, except as provided in paragraph 3

of Article 31, his property, shall likewise enjoy inviolability.

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3. Embassy inviolable• The Embassy is inviolable. Art. 22, above. Objects may not be thrown onto

an Embassy’s premises.

• Sun Yat Sen Incident, 1896 – Chinese revolutionary Sun Yat Sen was walking in London to visit friends. 3 men forced him into the adjacent Chinese Legation or embassy and held him prisoner. During the kidnapping, he was interrogated and told he was now in China and that he would be smuggled out for execution. The embassy could not be searched by police because of diplomatic immunity. Habeas corpus failed. PM intervened by writing to his captors and he was rescued.

• Libyan People’s Bureau Incident, 1984 - 4 Libyan nationals were arrested following explosions at Manchester and Heathrow airports in the UK. WPC Yvonne Fletcher was killed by a bullet from a burst of machine-gun fire from within the Libyan Embassy. She died shortly afterwards. That evening, Doug Ledingham, the airport manager for British Caledonian Airways at Tripoli Universal Airport, Libya, was arrested by soldiers.

• In both of these incidents, the inviolability of the missions was respected even though flagrantly illegal actions had taken place inside them.

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• 4. The receiving state is required to allow diplomatic personnel freedom of movement, as provided in Art. 26:

Article 26 • Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for

reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.

• In addition, in times of hostilities there is an added duty to allow the diplomatic personnel to leave your territory: Art. 44 (above).

• Re actions of a mob, not state actions. But, the state is required to exercise due diligence in upholding its international obligations. Noyes, Neer, cf Home Missionary Society

• 5. Harm to Ambassador’s family members • His household (eg, 16 and not independent) covered under Art. 37(1). Read with Art. 29, including

inviolability: Article 37

• 1. 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.

Article 29 • The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or

detention. 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.

• The receiving state must treat household family member with “due respect” as well as to “prevent any attack on his person, freedom or dignity.” Immunities of household family members of diplomatic agents will be expansively upheld:

• R. v. Guildhall Magistrates Court, ex parte Jarrett-Thorpe – where the husband of a diplomatic agent was immune from arrest even during transit in a third state.

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6. Limited immunity of other categories of persons, eg service staff such as chauffeur or security guard

• Both the chauffeur and security guard would be considered members of the services staff, as defined in Art. 1(g): “members of the service staff” are the members of the staff of the mission in the domestic service of the mission

Categories:1.Ambassador, diplomatic agents, household family2. Administrative and technical staff (eg, Smith in Empson v

Smith)3.Service staff4.Private servants

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Arts 31 and 37 Ambassador’s household family members have immunity

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But, Arts 31 and 37(3) persons only immune re actions done in the course of their duties: Article 37

1. 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.

2. Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in Articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of Article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation. (+Art 31, see Empson v Smith, infra)

3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and the exemption contained in Article 33.

4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission.

• Chauffeur: Is part of the chauffeur’s duties, driving through crowd of protesters? If eg ordered to do so by the ambassador or household and in order to save their lives, he might be justified, as having done so in the course of his duties.

• Security Guard: Similarly, if he does a completely disproportionate act, eg, shooting into unarmed crowd, he might be argued to be fulfilling his duties in protecting the ambassador or ambassador’s family. It could go either way for both of the above.

• Pinochet Case, by analogy, shows us that heads of state may commit criminal acts as part of their duties.

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• 7. Waiver • The sending state may waive immunity, and the

receiving state may ask it to do so. • Art. 32 deals with waivers and the most important

thing to notice is that waivers must be express, not implied:

Article 32 1. The immunity from jurisdiction of diplomatic agents

and of persons enjoying immunity under Article 37 may be waived by the sending State.

2. Waiver must always be express.

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Removal of procedural bar by waiver, work termination or statute

• Waivers are important precisely because immunities merely create a procedural bar to prosecution. Any breach of local law by a diplomat will be a violation of that law. The wrong exists. Immunities only prevent prosecution, they do not remove or otherwise correct the wrong. This is illustrated by the case of Empson v. Smith, which shows us that if the procedural bar is dropped by statute, then suit may go forward.

• Empson v. Smith, [1966]1 QB 426, CA (Sellers, Danckwerts, Diplock LJJ)– In 1961 Agnes Empson rented a house to Clarence Smith an administrative officer in the Canadian High Commission London. Smith was transferred to Europe and broke the lease. Empson sued him for the rent arrears. At first instance the court dismissed the case on the ground of diplomatic immunity. CA Diplock LJ: “diplomatic immunity is not immunity from liablity, but immunity from suit”. He referred to changes brought by the UK Diplomatic Privileges Act 1964 (VC 1961), differentiating between diplomatic and administrative staff. (If Smith had applied beforehand, the action would have been dismissed as a nullity.) Empson could revive the action, even though Smith had immunity when the acts took place, because the bar was removed and immunity did not extend to acts performed outside the course of his duties.

• Held: In favour of Ms. Empson. The case was to be returned to the first instance court for trial on merits of whether Smith acted in the course of his duties and if not whether he was liable to Empson.

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8. When does immunity begin and end? Art 39

1.Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

2.When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

3.In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country….

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9. Persona Non Grata• Art. 9 allows the receiving state to declare anyone (“X”) connected with the

mission persona non grata (“person not acceptable”): Article 9

1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.

2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.

• Effect: X must leave, or not enter, the receiving state. If the receiving state eg, is seeking to prosecute X, declaring X persona non grata would be counter-productive, as X would be allowed to leave on recall. Receiving state could request sending authorities to try these persons in their own jurisdiction. As a matter of practice, this is doubtful.

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10. Transiting 3rd states, Art 401. If a diplomatic agent passes through or is in the territory of a third State,

which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country.

• Cf R. v. Guildhall Magistrates Court, ex parte Jarrett-Thorpe, 1977 – J-T was the husband of a diplomat (counselor) attached to Sierra Leone Embassy in Rome. His wife was in London buying furniture for the embassy in Rome. He went to London to help his wife with her luggage. He arrived after she had already departed, and was arrested for pending criminal charges in London while awaiting his plane at the London airport. Lawton J rejected the strict interpretation that Article 40 only applied when a diplomat or her family were in transit from he sending state to the receiving state. London Times, Oct 5, 1977

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3. Consular

Not on your syllabus. But, you should be aware that, generally speaking, immunities under the VC on Consular Relations 1963 are more limited than those under VC on Diplomatic Relations 1961

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In 2011, Krittika Biswas, 18, daughter of Indian vice consul, was arrested for cyberbullying. She protested against imprisonment for more than 24 hours and having to use a non-private toilet in the cell shared with others. It emerged that the emails were not sent by Biswas and she was eventually allowed back to the school after the real culprit was found. Not entitled to immunity.

Article 9 states that consular officers shall not be liable to arrest or detention. But, unlike VC 1961, immunity does not extend to consular family members.

Vienna Convention on Consular Relations, 1963

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CONCLUSION

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Former Managing Director of the International Monetary Fund, Dominique Strauss-Kahn, had only functional immunity and was not able to invoke diplomatic immunity when he was arrested in New York in 2011 on criminal charges of trying to rape, Nafissatou Diallo, a Guinean hotel maid.

In civil case, Judge Doug McKeon, Bronx Supreme Court, rejected DSK’s claim that he was entitled to diplomatic immunity on the grounds that: (1) IMF officials do not fall within the status/absolute immunity protections of the Vienna Convention on Diplomatic Immunities 1961, as parties are only states, not IOs; (2) the U.S. is not a party to the Specialized Agencies Convention 1947, which lays out privileges and immunities of officials of certain international organizations; (3) the Specialized Agencies treaty does not represent customary international law of IO immunities; (4) even if the Specialized Agencies treaty were applicable, the scope of immunities for IMF officials is limited under an annex to that agreement by the Bretton Woods Agreement and IMF Articles, which specifically limit immunity only to official acts. DSK could not rely on official acts/functional immunity since he was not carrying out official duties during his visit to the Sofitel.

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Prosecutor dropped the criminal charges because he considered Diallo’s testimony unreliable and “fatally damaged, for several key reasons." DSK settled the civil case for an undisclosed sum. Diallo is shown above in 2012 at end of civil case.

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Can you spot what’s wrong with this Monopoly card?1. A diplomat is immune from arrest.2. Unless imprisoned in error, or3. Arrest could be for a non official matter after

his diplomatic status has ended. But then not a case of diplomatic immunity

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Page 38: Sovereign Immunity: State & Diplomatic Immunity Peter D. Maynard

What have you learned?1. State immunity is different from diplomatic immunity.2. State Immunity is given for acts jure imperii, but not for certain

commercial acts or acts jure gestionis.3. Test: whether any person can do the act.4. The sovereign state as an entity and certain state officials (head of state

and government, foreign minister) have immunity ratione personae. Others only official acts immunity (ratione materiae).

5. Diplomatic Immunity under the Vienna Convention on Diplomatic Relations 1961 gives inviolability and protection to:• Mission premises and diplomatic bag• Different categories of persons (ambassador, household, staff)

6. It lasts only until the end of the post or a reasonable time after.

7. It can be waived by the sending state.38

Page 39: Sovereign Immunity: State & Diplomatic Immunity Peter D. Maynard

Thank you!

Questions?

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