Diplomatic handbook

The interpretation of the term ‘family’ varies between states. The spouse and minor children of the diplomat are always included. Normally a diplomat who is a bachelor or widower or not accompanied by his wife would be entitled to count his mother or sister as part of the family if they are living with him; sons and daughters for whom the diplomat is legally responsible are included, as are widowed mothers.

Limited diplomatic privileges and immunities are afforded to three categories of members of the staff of a mission: those who are nationals or permanent residents of the state in which they are serving; members of the administrative and technical staff; and private servants of members of the mission.

As a counterpart to the enjoyment of immunity a diplomat may not practice for profit any professional or commercial activity in the state in which he is serving.

It is customary (but not universally accepted) practice for members of diplomatic missions to be issued with diplomatic identity cards by the host state. These carry the photograph and signature of the holder, together with whatever instructions the host state may see fit to add for the benefit of its officials with regard to the privileges, facilities and immunities which should be accorded to the bearer.

The immunity granted to a diplomat and members of his family by the host state does not exempt them from the jurisdiction of their own state.

 

 

DURATION OF PRIVILEGES AND IMMUNITIES

 

Personal privileges and immunities apply from the moment the member of a mission enters the host country to take up his post or, if already the country, from the moment his appointment is notified to the appropriate Ministry. Privileges and immunities come to an end when he leaves the country on the conclusion of his functions, or (if he does not leave immediately) after a reasonable interval of time (e.g. 4-6 weeks in the UK); but immunity from jurisdiction in respect of acts carried out in the course of his official duty has no limit in time. Immunity from jurisdiction in respect of any act carried out in a private capacity, however, does not continue after the conclusion of the diplomat’s functions. In the event of the death of a member of a mission, the members of his family continue to enjoy the privileges and immunities to which they were entitled for a reasonable period of time sufficient to enable them to leave the country.

 

 

 

 

 

 

 

 

FULL PRIVILEGES AND IMMUNITIES

PERSONAL INVIOLABILITY AND PROTECTION

 

All diplomats enjoy personal inviolability, and members of their family forming part of their household similarly enjoy inviolability provided that they are not nationals or permanent residents of the host state. A state which accepts the establishment of a foreign diplomatic mission is bound to ensure complete protection to all members of that mission and to their families against physical violence whatever its source, and from attacks on their dignity and freedom.

 

IMMUNITY FROM CRIMINAL JURISDICTION

 

A diplomat and members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) are immune from the criminal jurisdiction of the host state.

 

IMMUNITY FROM CIVIL AND ADMINISTRATIVE

JURISDICTION

 

A diplomat and members of his family forming part of his household (provided they are not nationals or permanent residents of the host state) are immune from civil and administrative jurisdiction in the host state except in the case of:

 

1. a real action (i.e. an action to claim ownership or possession) relating to private immovable property

       situated in the host state, unless he holds it on behalf of the state he serves for the purposes of the

       mission;

2. an action relating to succession in which he is involved as executor, administrator, heir or legatee as

       a private person and not on behalf of the state he serves;

3. an action relating to any professional or commercial activity exercised by him in the host state outside

       his official function. This limitation applies in practice to his spouse and family.

 

 

WAIVER OF DIPLOMATIC IMMUNITY

 

The immunity from jurisdiction of an individual entitled to such protection may be waived only by his government. A waiver of immunity from civil or administrative proceedings does no more than allow the person concerned to stand trial; a second and specific waiver is required before the judgement can be put into effect.

 

COUNTERCLAIMS

 

If legal proceedings are started by a person enjoying diplomatic immunity he is not entitled to claim immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

 

 

INVIOLABILITY OF CORRESPONDENCE

 

The papers and correspondence of a diplomat and of members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) are inviolable.

 

INVIOLABILITY OF PROPERTY

 

The property of a diplomat and of members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) is inviolable.

 

EXEMPTION FROM LIABILITY FOR PUBLIC SERVICE

 

A diplomat and members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) are exempt from all personal and public services and from military obligations such as requisitioning, billeting or military contributions and from jury service.

 

EXEMPTION FROM LIABILITY TO SERVE AS A WITNESS

 

A diplomat and members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) are not obliged to give evidence as witnesses (but in many cases do so in order to assist justice).

 

EXEMPTION FROM NATIONAL AND LOCAL TAXATION

 

A diplomat and members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) are exempt from all dues and taxes, personal or real, national, regional or municipal, except for:

 

1. Indirect taxes of a kind normally incorporated in the price of goods or services, e.g. value-added tax (though in some instances a refund of such taxes and excise duties is made on a reciprocal basis or to promote sales of goods manufactured in the receiving state).
2. Dues and taxes on private immovable property situated in the territory of the host state, unless it is held on behalf of the sending state for the purposes of the mission.
3. Estate, succession or inheritance duties levied by the host state, subject to the provisions referred to in Article 39 of the Vienna Convention. Generally speaking, such duties are not levied on an individual's movable property provided that its presence in the receiving state could reasonably be related to his official functions, and provided that he or she was not a permanent resident or national of the state concerned.
4. Dues and taxes on private income originating in the host state, and capital taxes levied on commercial undertakings in that state.
5. Charges levied for specific services rendered. (In UK practice this covers one-quarter approximately of local authority rates or taxes relating to services such as roads, street lighting and refuse collection from which a diplomat is deemed to derive direct benefit.)
6. Registration, court or record fees, mortgage dues and stamp duty in respect of immovable property (except for immovable property required as part of the premises of the mission in which case fees and dues are payable only in respect of specific services rendered).

 

 

EXEMPTION FROM CUSTOMS DUTIES

 

A diplomat and members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) are entitled (in accordance with local regulations, which must not defeat diplomatic privilege) to import articles for their personal use, including articles required for the upkeep of their establishment, and are exempt from customs and other similar duties in respect of such articles. They are, however, liable to related charges for services, e.g. storage and cartage; and must comply with the regulations of the host state in respect of any articles imported duty-free that they subsequently sell or otherwise dispose of.

EXEMPTION FROM SOCIAL SECURITY PROVISIONS

 

A diplomat and members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) are exempt from the social security provisions of the host state. Private servants in the sole employ of a diplomat are also exempt, provided that they are not nationals or permanent residents of the host state and that they are covered by the social security provisions of their own state; and a diplomat is obliged to comply with the social security provisions in force in respect of any person he employs who is not so exempt. In some states he may be permitted to participate in their social security scheme if he so wishes; and in others his position may be covered by an existing agreement between the host state and his own state.

 

EXEMPTION FROM INSPECTION OF PERSONAL LUGGAGE

 

A diplomat and members of his family forming part of his household (provided that they are not nationals or permanent residents of the host state) are exempt from the inspection of personal luggage, unless there are serious grounds for believing that it contains articles that do not come within the scope of the privileges permitted, or illegal imports or exports. In this event the inspection is conducted only in the presence of the diplomat or of his authorised representative.

 

 

FREEDOM OF TRAVEL

 

All members of the staff of a diplomatic mission are entitled to travel freely and without restriction in the state in which they are serving, except in those areas to which access is limited on grounds of national security. This principle is not always adhered to, and certain states limit toe freedom of certain diplomats to special travel zones; and in such cases a policy of reciprocity is usually adopted.

 

 

TRAVEL THROUGH A THIRD STATE

 

Provided that they have any necessary visas, diplomats and members of their family, whether travelling with them or separately, are entitled to inviolability and all other immunities necessary to ensure a safe journey when passing through a third state on their way to or from a post. To ensure this they should be provided by their Ministry with a letter (preferably in the language of the third state or states) giving the purpose of their journey; or with a diplomatic visa issued by a diplomatic or consular representative of that state. It is not normal for their luggage to be inspected, and the authorities should have very good reasons before doing so.

 

RECIPROCAL OBLIGATIONS OF DIPLOMATS

 

The granting of privileges and immunities by a state implies the acceptance of a high standard of responsibility and integrity on the part of the recipient. He may not interfere in the internal affairs of that state nor allow official premises to be put to any purpose other than their proper and recognised function; and he should not take advantage of his immunity from the jurisdiction of the courts to disregard its laws in such matters as motor-car accidents, speeding and parking.

 

DIPLOMATIC PASSPORTS

 

Diplomatic passports are issued by most states to those of their nationals who are entitled to diplomatic immunity and in the case of some states, to persons of high standing or connection. The UK practice is to issue diplomatic passports on a strictly controlled basis and only to diplomats for the duration of their posting in a British diplomatic mission overseas. They are usually taken not as evidence of entitlement to immunity (this being a function prima facie of the Diplomatic List), but as evidence of appointment only; they nevertheless often serve a useful purpose. Identity cards may be issued by the receiving state for the same purpose.

REPRESENTATIVES TO INTERNATIONAL ORGANISATIONS

 

In certain cases resident (and sometimes non-resident) representatives of states to international organisations are entitled to the same privileges and immunities as diplomats. Representatives to the United Nations and its Specialised Agencies normally receive a wide range of privileges and immunities under the 1946 Convention on the Privileges and Immunities of the United Nations, and the similar Convention regarding the Specialised Agencies. The few most senior officers on the staffs of these organisations are entitled to the full range of diplomatic privileges and immunities (unless they are nationals or permanent residents of the receiving state); the other staff members of the organisations enjoy more limited privileges and immunities. In the case of other organisations, such matters are normally included in the Agreement establishing the organisation or in an Agreement concluded between the host state and the international organisation before the latter is set up. Special provisions apply in Switzerland and the USA where such organisations are numerous.

 

MEMBERS OF VISITING DIPLOMATIC MISSIONS

 

It is customary for states to grant privileges and immunities to visiting representatives of foreign states who, although not accredited as diplomats to any state, are exercising quasi-diplomatic or representative functions. Within this category come Heads of State or their representatives whether on a state occasion or on an informal visit, members of arbitration tribunals and government delegates to conferences or congresses. The New York Convention on Special Missions has now been drawn up to regulate the privileges and immunities given to such temporary special missions sent with the agreement of the receiving state.

 

 

LIMITED PRIVILEGES AND IMMUNITIES

 

NON-DIPLOMATIC STAFF OF A MISSION WHO ARE

NOT NATIONALS OR PERMANENT RESIDENTS OF THE

STATE IN WHICH THEY ARE SERVING

 

 

Members of the administrative and technical staff of a mission and members of their families forming part of their household (provided that they are not nationals or permanent residents of the state in which they are serving) are entitled to the full immunities given to a diplomat except that immunity from civil and administrative jurisdiction does not extend to acts performed outside the course of their duty; and to full diplomatic privileges except that they are not exempt from the inspection of their luggage, and exemption from customs duties is limited to articles imported at the time of their arrival in the state to take up their appointment there; nor are they entitled to privileges and immunities while travelling through third states to take up an appointment, though such states are obliged not to hinder their passage.

 

Members of the domestic ('service') staff of a mission who are not nationals or permanent residents of the state in which they are serving are entitled to immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive in respect of their employment, and exemption from social security provisions in respect of their employment with a diplomatic mission provided that they are covered by the social security provisions of their own country.

 

Private servants of members of the diplomatic staff of a mission who are not nationals or permanent residents of the state in which they are serving are exempt from dues and taxes on the emoluments they receive in respect of their employment, but are not otherwise entitled to any privileges or immunities other than those that the host state may choose to grant; it is, however, bound to exercise its jurisdiction over them in such a manner as not to interfere unduly with the performance of the functions of the relevant mission.

 

 

 

DIPLOMATS AND OTHER MEMBERS OF THE

STAFF OF A MISSION WHO ARE NATIONALS OR

PERMANENT RESIDENTS OF THE HOST STATE

 

Diplomats who are nationals or permanent residents of the state in which they are serving are entitled only to immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions, though other privileges and immunities may be granted in particular states. Other (non-diplomatic) members of the staff of a mission and private servants who are nationals or permanent residents of the state in which they are serving enjoy only those privileges and immunities that the host state considers appropriate. Any limitations placed on persons in these categories, however, must be such as not to interfere unduly with the performance of the functions of their mission.

 

 

Chapter 6

CONSULAR OFFICERS AND

CONSULAR POSTS

 

 

 

 

THE ESTABLISHMENT OF CONSULAR POSTS

 

The establishment of diplomatic relations between states implies agreement in principle to the establishment of consular relations unless the contrary is specifically stated; but the severance of diplomatic relations does not automatically signify the severance of consular relations.

The establishment of a consular post requires the prior approval of the host state, which may ask to be provided with details of the location and status of the post (i.e. Consulate-General, Consulate, Vice- Consulate or Honorary Consulate) and its area of consular jurisdiction. Its prior approval must also be obtained for any subsequent changes in these particulars, and also for the establishment of any subsidiary consular offices elsewhere in the consular area.

 

CONSULAR FUNCTIONS

 

Consular functions are described in general terms in the 1963 Vienna Convention on Consular Relations as follows:

 

1. protecting in the receiving state the interests of the sending state and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
2. furthering the development of commercial, economic, cultural and scientific relations between the sending state and the receiving state and otherwise promoting friendly relations between them in accordance with the provisions of the Convention;
3. ascertaining, by all lawful means, conditions and developments in the commercial, economic, cultural and scientific life of the receiving state, reporting thereon to the Government of the sending state and giving information to persons interested;
4. issuing passports and travel documents to nationals of the sending state, and visas or appropriate

      documents to persons wishing to travel to the sending state;

5. helping and assisting nationals, both individuals and bodies corporate, of the sending state;
6. acting as notary and civil registrar and in capacities of a similar kind, and performing certain of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the

        receiving state;

7. safeguarding the interests of nationals, both individuals and bodies corporate, of the sending state in

       cases of succession mortis causa in the territory of the receiving state, in accordance with the laws and

       regulations of the receiving state;

8. safeguarding, within the limits imposed by the laws and regulations of the receiving state, the interests

       of minors and other persons lacking full capacity who are nationals of the sending state, particularly

       where any guardianship or trusteeship is required with respect to such persons;

9. subject to the practices and procedures in force in the receiving state, representing or arranging appropriate representation for nationals of the sending state before the tribunals and other authorities of the receiving state, for the purpose of obtaining, in accordance with the laws and regulations of the receiving state, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests;
10. transmitting judicial and extra-judicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending state in accordance with international agreements in force or, in the absence of such agreements, in any other manner compatible with the laws and regulations of the receiving state;
11. exercising rights of supervision and inspection provided for in the laws and regulations of the sending state in respect of vessels having the nationality of the sending state, and of aircraft registered in that state, and in respect of their crews;
12. extending assistance to vessels and aircraft mentioned in (k) above and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers, and without prejudice to the powers of the authorities of the receiving state, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen in so far as this may be authorised by the laws and regulations of the sending state;
13. performing any other functions entrusted to a consular post by the sending state which are not prohibited by the laws and regulations of the receiving state or to which no objection is taken by the receiving state or which are referred to in the international agreements in force between the sending state and the receiving state.