international diplomatic-immunity
What is the legal basis of diplomatic immunity?
<p>I'm guessing there was an intentional convention/treaty on universal diplomatic protocols (is it one of the Vienna conventions?) But suppose one sued or prosecuted a diplomat in a court of the host country; what legal basis would the judge dismiss it on?</p>
<p>Must the international treaties be implemented as domestic laws adopted by the national legislature? Such as the GDPR is implemented in the Data Protection Act 2018 in the UK, and the ECHR is in the Human Rights Act 1998 for England, Wales and Northern Ireland.</p>
<p>Is there a more general principle that states that domestic courts can only cite national statutes and not international agreements directly?</p>
<p>I'm thinking tangentially of judge baraitsers dismissals of appeals to us UK extradition treaty's clause barring extradition on political offences of last year.</p>
<p>Conversely and for perspective I suppose that the American constitution hails ratified international agreements as also the law of the land..?</p>

<p>You are indeed thinking of the <a href="https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&amp;mtdsg_no=III-3&amp;chapter=3&amp;clang=_en" rel="noreferrer">Vienna Convention on Diplomatic Relations</a> of 1961. This codified a portion of existing customary international law on diplomatic immunity. It is the result of several years of legal negotiations at establishing a common set of rules that would be generally acceptable.</p>
<p>The basic concept of immunity for ambassadors is very ancient, and there is still a body of customary international law that was <em>not</em> codified. For example, the 1961 Convention only deals with permanent missions, not temporary ones like for multinational summits. The history and practice are also helpful for interpreting the Convention itself, such as when considering the scope of diplomatic duties which are protected, as opposed to extracurricular activities which might not be.</p>
<p>In the UK, the Convention is implemented by the <a href="https://www.legislation.gov.uk/ukpga/1964/81/contents" rel="noreferrer">Diplomatic Privileges Act 1964</a>. This mostly repeats the relevant parts of the Convention text, in Schedule 1, and also includes sections integrating those provisions with domestic law. As far as the courts, section 4 says that</p>
<blockquote>
<p>If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.</p>
</blockquote>
<p>This means that what happens procedurally in a UK court is that someone wanting to claim immunity must come with a letter from the Foreign Secretary attesting that they are a real diplomat and not just making it up. The court then considers, from that <em>fact</em>, what legal consequences follow, depending on the type of diplomat involved (e.g. heads of mission have broader protection), the nature of the case (criminal case where the diplomat is accused? civil case where they are the respondent?),  etc. That is a matter of interpreting the Convention, plus maybe customary international law - it doesn't mean the diplomat gets to wave their certificate and end the proceedings.</p>
<p>The purpose of section 4 is to avoid the court entering its own fact-finding process about whether someone is a real diplomat. That is felt to run the risk of the court causing diplomatic offence by accident - consider Israel and Palestine and China and Taiwan for potential pitfalls. The doctrine of &quot;one voice&quot; obliges the courts to follow the executive's lead.</p>
<p>Prior to the Act of 1964, diplomatic immunity was covered by several other enactments, but with the same basic model for implementing immunities in court. There were different regimes for Commonwealth countries and others, which is not the case any more. The first such Act was passed in 1708 after an embarrassing situation with the then ambassador from Russia, who was imprisoned for his debts, angering the Tsar.</p>
<p>In general, domestic courts in the UK can take account of customary international law if it is relevant. They can also look at treaty texts, even ones the UK has not signed, to help interpret international law. (In the same way, they can look at academic articles, travaux préparatoires, etc., which have no formal status as law.) If the UK signed the 1961 Convention but did not pass the 1964 Act, then courts might be able to treat the Convention as &quot;background&quot; - but would still be bound by the 1708-1955 Acts on the topic, as far as the actual procedure and rules to follow. A diplomat would not be able to avail themselves of their specific 1961 rights, unless perhaps there was some gap or ambiguity in the domestic law where they could squeeze in an argument that the Convention supplied the proper interpretation of whichever point of customary international law was involved.</p>

<blockquote>
<p>What is the legal basis of diplomatic immunity?</p>
</blockquote>
<p>Diplomatic law started on the 1815-06-09, where the heads of missions recieved diplomatic immunity (Treaty 17: <strong>Regulation concerning the precedence of Diplomatic Agents</strong>, Final Act of the Congress of Vienna).</p>
<p>Until 1961/63 everything else (immunity for other members of the mission ; right of travelers to contact their consulates) were based on general understandings ('Gentleman's Agreement').</p>
<p>For <strong>Diplomatic</strong> (Embassy) the rules are slightly different than for <strong>Consular</strong> (Consulate).</p>
<p>See Articles 29-36 for the immunities of a 'diplomatic agent' and the inviolability of the Embassy or Residence Article 22 of the <strong>Vienna Convention Diplomatic Relations</strong> of 1961.</p>
<p>See Articles 40-57 for the immunities of a 'career consular officers' and the inviolability of the consular premises Article 31 of the <strong>Vienna Convention Consular Relations</strong> of 1963.</p>
<hr />
<h2>Final Act of the Congress of Vienna</h2>
<ul>
<li><a href="https://en.wikisource.org/wiki/Final_Act_of_the_Congress_of_Vienna" rel="nofollow noreferrer">Final Act of the Congress of Vienna</a>
<ul>
<li>1815-06-09</li>
</ul>
</li>
</ul>
<blockquote>
<ol start="17">
<li>Regulation concerning the precedence of Diplomatic Agents, 19 March</li>
</ol>
</blockquote>
<hr />
<h2>Vienna Convention Relations (Diplomatic,Consular)</h2>
<h3>Vienna Convention Diplomatic Relations</h3>
<ul>
<li>1961-04-18</li>
</ul>
<blockquote>
<p><strong>Article 8</strong></p>
<ol>
<li>Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.</li>
<li>Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.</li>
<li>The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.</li>
</ol>
<p>...<br />
<strong>Article 22</strong></p>
<ol>
<li><strong>The premises of the mission shall be inviolable</strong>. The agents of the receiving State may not enter them, except with the consent of the head of the mission.</li>
<li>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.</li>
<li>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.</li>
</ol>
<p>...<br />
<strong>Article 29</strong><br />
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.</p>
<p><strong>Article 30</strong></p>
<ol>
<li>The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.</li>
<li>His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability.</li>
</ol>
<p><strong>Article 31</strong></p>
<ol>
<li>A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:<br />
(a) A real action relating to 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;<br />
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.</li>
<li>A diplomatic agent is not obliged to give evidence as a witness.</li>
<li>No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.</li>
<li>The immunity of a diplomatic agent from the jurisdiction of the sending State.</li>
</ol>
<p><strong>Article 32</strong></p>
<ol>
<li>The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.</li>
<li>Waiver must always be express.</li>
<li>The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.</li>
<li>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.</li>
</ol>
<p><strong>Article 33</strong></p>
<ol>
<li>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.</li>
<li>The exemption provided for in paragraph 1 of this article shall also apply to private servants who are in the sole employ of a diplomatic agent, on condition:<br />
(a) That they are not nationals of or permanently resident in the receiving State; and<br />
(b) That they are covered by the social security provisions which may be in force in the sending State or a third State.</li>
<li>A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this article does not apply shall observe the obligations which the social security provisions of the receiving State impose upon employers.</li>
<li>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.</li>
<li>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.</li>
</ol>
<p><strong>Article 34</strong><br />
A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or real, national, regional or municipal, except:<br />
(a) Indirect taxes of a kind which are normally incorporated in the price of goods or services;<br />
(b) 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;<br />
(c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of article 39;<br />
(d) 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;<br />
(e) Charges levied for specific services rendered;<br />
(f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of article 23.</p>
<p><strong>Article 35</strong><br />
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 requisitioning, military contributions and billeting.</p>
<p><strong>Article 36</strong></p>
<ol>
<li>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.</li>
<li>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.</li>
</ol>
</blockquote>
<hr />
<h3>Vienna Convention Consular Relations</h3>
<ul>
<li>1963-04-24</li>
</ul>
<p>There is also the <em>Vienna Convention Consular Relations</em> of 1963-04-24.</p>
<blockquote>
<p><strong>Article 5</strong><br />
<strong>CONSULAR FUNCTIONS</strong><br />
Consular functions consist in :<br />
(a) protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, <strong>within the limits permitted by international law</strong>;</p>
<ul>
<li><sub>---&gt; Article 4<br> Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930-04-12</sub></li>
</ul>
<p>...<br />
<strong>Article 22</strong><br />
<strong>NATIONALITY OF CONSULAR OFFICERS</strong></p>
<ol>
<li>Consular officers should, in principle, have the nationality of the sending State.</li>
<li>Consular officers may not be appointed from among persons having the nationality of the receiving State except with the express consent of that State which may be withdrawn at any time.</li>
<li>The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.</li>
</ol>
<p>...<br />
<strong>Article 31</strong><br />
<strong>INVIOLABILITY OF THE CONSULAR PREMISES</strong></p>
<ol>
<li><strong>Consular premises shall be inviolable to the extent provided in this Article</strong>.</li>
<li>The authorities of the receiving State shall not enter that part of the consular premises <strong>which is used exclusively for the purpose of the work of the consular post</strong> except with the consent of the head of the consular post or of his designator of the head of the diplomatic mission of the sending State. <strong>The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action</strong>.</li>
<li>Subject to the provisions of paragraph 2 of this Article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.</li>
<li>The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the perform ance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.</li>
</ol>
<p>...<br />
<strong>Article 36</strong><br />
<strong>COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE</strong></p>
<ol>
<li>With a view to facilitating the exercise of consular functions relating to nationals of the sending State :<br />
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State ;<br />
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.<br />
Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. <strong>The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph</strong>;<br />
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment.
Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.</li>
<li>The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
...</li>
</ol>
<p><strong>Section II</strong><br />
<strong>FACILITIES, PRIVILEGES AND IMMUNITIES RELATING TO CAREER CONSULAR OFFICERS AND OTHER MEMBERS OF A CONSULAR POST</strong></p>
<p><strong>Article 40</strong><br />
<strong>PROTECTION OF CONSULAR OFFICERS</strong></p>
<p>The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.</p>
<p><strong>Article 41</strong><br />
<strong>PERSONAL INVIOLABILITY OF CONSULAR OFFICERS</strong></p>
<ol>
<li>Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.</li>
<li>Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.</li>
<li>If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.</li>
</ol>
<p><strong>Article 42</strong><br />
<strong>NOTIFICATION OF ARREST, DETENTION OR PROSECUTION</strong><br />
In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiv ing State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.</p>
<p><strong>Article 43</strong><br />
<strong>IMMUNITY FROM JURISDICTION</strong></p>
<ol>
<li>Consular officers and consular employees shall not be amenable to the juris diction of the judicial or administrative authorities of the receiving State <strong>in respect of acts performed in the exercise of consular functions</strong>.</li>
<li>The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil action either :<br />
(a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State ; or<br />
(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.</li>
</ol>
<p>...</p>
</blockquote>
<hr />
<h3>Convention on Certain Questions Relating to the Conflict of Nationality Laws</h3>
<ul>
<li>1930-04-12</li>
</ul>
<blockquote>
<p><strong>Article 4</strong><br />
A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.</p>
</blockquote>
<hr />
<p><strong>Sources</strong>:</p>
<ul>
<li><a href="https://en.wikisource.org/wiki/Final_Act_of_the_Congress_of_Vienna" rel="nofollow noreferrer">Final Act of the Congress of Vienna - Wikisource, the free online library</a>
<ul>
<li>
<ol start="17">
<li>Regulation concerning the precedence of Diplomatic Agents, 19 March 1815</li>
</ol>
</li>
</ul>
</li>
<li>Pdf <a href="https://legal.un.org/ilc/documentation/english/a_cn4_98.pdf" rel="nofollow noreferrer">Diplomatic intercourse and immunities (1956)</a></li>
<li>Pdf <a href="https://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf" rel="nofollow noreferrer">Vienna Convention on Diplomatic Relations (1961)</a></li>
<li>Pdf <a href="https://legal.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf" rel="nofollow noreferrer">Vienna Convention on Consular Relations (1963)</a></li>
<li><a href="https://en.wikipedia.org/wiki/League_of_Nations_Codification_Conference,_1930" rel="nofollow noreferrer">League of Nations Codification Conference, 1930</a>
<ul>
<li><a href="https://en.wikipedia.org/wiki/Convention_on_Certain_Questions_Relating_to_the_Conflict_of_Nationality_Laws" rel="nofollow noreferrer">Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930-04-12</a>
<ul>
<li>Pdf <a href="https://web.archive.org/web/20141226230108if_/http://eudo-citizenship.eu/InternationalDB/docs/Convention%20on%20certain%20questions%20relating%20to%20the%20conflict%20of%20nationality%20laws%20FULL%20TEXT.pdf" rel="nofollow noreferrer">Convention on Certain Questions Relating to the Conflict of Nationality Laws</a></li>
<li><a href="https://en.wikipedia.org/wiki/Master_Nationality_Rule" rel="nofollow noreferrer">Article 4: Master Nationality Rule - Wikipedia</a></li>
</ul>
</li>
</ul>
</li>
</ul>
