Immunities and privileges of diplomatic agents. Part 2 презентация

Waiver of immunity
VCDR Art. 32:
1.The immunity from jurisdiction <…> may be waived by the sending State.
2.Waiver must always be express.
3.The initiation of proceedings by a diplomatic agent shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.
4.Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

Waiver of immunity
Immunity in substance belongs to the sending State and must be waived by that State (not individual).
There can be no implied waiver of immunity (e.g. when the diplomatic agent appears as defendant without claiming any immunity). The waiver should be express in regard to all (e.g. criminal, civil) proceedings.
Waiver is irrevocable
The evidence which a court may require to establish that a valid waiver has been made by the sending State (determined under the national law of the receiving State, but usual practice: a waiver by the Head of the mission is deemed to be a waiver by that State)

Waiver of immunity
If the diplomatic agent chooses to bring legal proceedings before the domestic courts of the receiv State:
no authority of the sending State is required under the VCDR
obligation to comply with the rules of the court of the receiving State;
the diplomatic agent cannot plead immunity in regard to any counterclaim which may be pleaded by the defendant to his action;
the diplomatic agent cannot plead immunity in regard to the appeal.

Waiver of immunity
the execution of a judgment requires a separate waiver by the sending State (Art 32.4 of the VCDR). The implication of the text is that in respect of criminal proceedings no separate waiver in respect of execution of any penalty is necessary, thus waiver of immunity in a criminal case cannot be confined to the proceedings to determine guilt

If a person wants to sue a diplomat...
3 options:
1. try to institute proceedings before the courts of the diplomat's home State;
2. lay the matter before the ambassador of the sending State hoping to have his assistance in obtaining a settlement;
3. lay the matter before his own government, usually before the ministry of foreign affairs, and ask them to intervene.

Commencement and termination of immunities
VCDR Article 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.
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4. Commencement and termination of immunities (cont’d)
Termination: immunities subsist until:
the diplomatic agent leaves the country on termination of his mission, or for a reasonable period to enable him to do so.
What constitutes a “reasonable period”? Some states define under domestic law, some prefer a flexible approach; usually 1-30 days for the persona non grata or 1-6 months to normal cases
2. the receiving State may extend a longer 'reasonable period' to members of the family of the diplomat expelled on short notice or in the case of death of the diplomat.
3. No termination of immunity for official acts.

2. Privileges of a diplomatic agent
Privileges granted for the diplomatic agents:
exemption from taxation,
exemption from customs duties and baggage inspection,
exemption from social security obligations,
exemption from personal and public services,
special treatment under the laws of the receiving State regarding the acquisition of nationality
the right to freedom of movement
special privileges under the law of the receiving State in the absence of international obligation

Exemption from taxation
VCDR Article 34
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:
Indirect taxes of a kind which are normally incorporated in the price of goods or services;
Dues and taxes on private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of article 39; Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State; Charges levied for specific services rendered; Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of article 23.

Exemption from taxation
Three types of taxation where a diplomat is not entitled to exemption:
taxes where it would be administratively impractical to make arrangements for exemption or refund.
Such taxes usually include purchase tax, VAT, sales tax, airport tax (where this forms part of the ticket price).
Some countries issue coupons to claim exemption (US, Belgium), usually for the petrol;
Some countries refund taxes after presentation of receipts;

Exemption from taxation
2. For the activities which are out of diplomat’s proper activities in the receiving State;
2.1. on private immovable property;
no taxes are payable on the embassy premises held in the name of a member of the mission; but:
Functional approach: diplomatic residences are used on behalf of the sending State for the purposes of the mission, so the tax is not levied.

Exemption from taxation
2.2. where the diplomat is liable to tax is estate, succession or inheritance duties levied by the receiving State:
The diplomat should not pay tax in respect of matters which are a necessary part of his living and working in the receiving State. But if he acquires a substantial fortune or holds property in the receiving State which has no relation to his functions, estate or succession duty is payable on it.
2.3. If the diplomat lets property privately or makes profits from investing on the stock exchange in the receiving State, he is liable to pay tax on these profits.

Exemption from taxation
3. charges for services (analogy with mission’s duty to pay taxes on specific services):
3.1. The diplomat is obliged to pay road or bridge tolls and other similar taxes related with his residence.
3.2. registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property - imposed to cover the administrative cost of providing the service of registration of immovable property

Exemption from customs duties and baggage inspection
VCDR Article 36
1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:
(a) Articles for the official use of the mission;
(b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.
2. The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.

Exemption from customs duties and baggage inspection
the exemption is to be granted in accordance with the laws and regulations of the receiving State;
If regulations are imposed in bad faith or so restrictive as essentially to obstruct the exercise of the right to duty-free imports, they may be challenged by sending states.

Exemption from social security obligations
VCDR Art. 33
1.Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.
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4.The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary participation in the social security system of the receiving State provided that such participation is permitted by that State.
5.The provisions of this article shall not affect bilateral or multilateral agreements concerning social security concluded previously and shall not prevent the conclusion of such agreements in the future.

Exemption from personal and public services
VCDR Art. 35:
The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with military contributions.
Exemption from compulsory services – civic duties:
jury service;
military service;
military obligations such as requisition and billeting,
duties to assist in public emergencies such as floods or forest fires..

Duties of diplomatic agents
See VCDR Art. 41:
1.Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.
2.All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.<..>
1. duty to respect the laws and regulations of the receiving State: applicable to official as well as the private activities of diplomats:
1.1. Obligation to observe local motor traffic regulations, insurance, keep technical standards for the car maintenance..
1.2. Obligation not to perform consular functions if the permit of the receiving state is required; etc.

Duties of diplomatic agents
2. duty not to interfere in the internal affairs of the receiving State:
2.1. avoid public statements or actions which would be construed as supporting one candidate or party;
3. To inform the ministry of foreign affairs on all aspects of relations between sending and receiving States.
4. Other duties (VCDR Art. 42 - commercial activities etc.)

Reading materials
DENZA, E. Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, Oxford: Oxford University Press, 4th edition, 2016, p. 213-364; p. 386-388;
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), ICJ, judgment of 24 May 1980: (judgment full text: http://www.icj-cij.org/docket/files/64/6291.pdf; summary of the judgment: http://www.icj-cij.org/docket/files/64/6293.pdf
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ, Judgment of 19 December 2005: (judgment full text: http://www.icj-cij.org/docket/files/116/10455.pdf, summary of the judgment: http://www.icj-cij.org/docket/files/116/10457.pdf
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ, judgment of 4 June 2008 (judgment full text: http://www.icj-cij.org/docket/files/136/14550.pdf; summary of the judgment: http://www.icj-cij.org/docket/files/136/14572.pdf