Anthony Aust. Handbook of International Law

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The exception is more likely to be relevant to a diplomatic spouse who works.

Proof of diplomatic immunity

Whatever the basis for immunity under the Convention, it is for the person claiming it to establish

that he is entitled to it. Immunity can never be presumed. In an attempt to smooth their passage

through foreign customs and immigration, some states issue diplomatic passports to government

ministers, members of the legislature and sometimes even persons with no public office. But the

possession of a diplomatic passport or diplomatic visa is, in itself, never proof of immunity. To

prove it requires evidence that (1) the person holds a position in a diplomatic mission which confers

immunity and (2) that the immunity covers him in the particular circumstances of the case.

How

these matters are established depends on the law and practice of each state. Obviously, the foreign

ministry of the receiving state can help, but it has to be careful not to pre-empt the local courts. Even

the apparently simple act by the foreign ministry of confirming that Mr Smith has been notified as a

diplomatic agent serving in the Embassy of Ruritania does not prove that the person claiming

immunity is Mr Smith – that also has to be proved. And, even if he is, as we have already seen – and

will see again when we discuss other members of a diplomatic mission – whether his immunity

applies in the particular circumstances of the case is a question of law. Some states (e.g. the United

States) will sometimes certify to their courts points of fact and law; other states (e.g. the United

Kingdom) will certify only matters of fact.

A foreign ministry may nevertheless indicate, albeit

informally, whether it considers a person a member of a diplomatic mission. In doing so, it is

important for the ministry to be even-handed. In responding to any factual enquiries about

diplomatic status, the ministry must always remember that a successful claim of immunity could

severely affect the rights of others. It must therefore not only consider the matter with great

46. See p. 147 below.

47. This equally applies to persons claiming immunity as a member of a special mission (p. 155 below), a

consular officer (p. 158 below), a head or former head of state (p. 176 below) or a person connected with

an international organisation (p. 200 below).

48. Section 4 of the Diplomatic Privileges Act 1964 provides that a certificate by or on behalf of the

Foreign and Commonwealth Secretary is conclusive evidence as to the facts in it. The question of

immunity is for the court alone.

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care, but all information provided to one party should be sent also to the other party or parties

concerned.

Immunity from giving evidence

A diplomatic agent is not obliged to give evidence as a witness (Article 31(2)). The sending state

may, however, agree to waive his immunity solely to enable him to do so. Whether it will be

possible to attach conditions as to the manner in which he gives evidence will depend on the law and

practice of the receiving state.

What immunity is not

For so long as a person has immunity it protects him in the receiving state against legal proceedings

in respect of all current and past matters, including private matters. In respect of acts performed in

exercise of his functions as a member of the mission, the immunity continues indefinitely (Article

39(2)). But the law of the receiving state still applies to the immune person as it does to other

persons (Article 41(1)); it is just that it cannot be enforced against him while the immunity lasts and

is not waived. Immunity from jurisdiction is therefore not the same as being ‘above the law’. The

insurer of a person enjoying immunity should therefore always settle a claim against the insured

person for the full and proper amount even if immunity has not been waived. Most receiving states

now require members of foreign missions to hold third party motor vehicle insurance.

Nor does immunity from the jurisdiction of the receiving state exempt a person from the

jurisdiction of his own state (Article 31(4)). In the case of a serious criminal offence, the sending

state may be willing to waive immunity (as is increasingly done) or to recall the person and to

prosecute or discipline him at home. In practice, much can be achieved by discussions between the

mission and the foreign ministry of the receiving state; and if the case is serious and the mission

uncooperative, the foreign ministry always has the power to require the person’s recall.

Immunity from execution

Even if immunity from jurisdiction has been waived, a judgment cannot be enforced by execution

against the person, private residence or private

49. See p. 122 above.

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property of the immune person (Articles 31(3), 29 and 30). This is subject only to the three

exceptions in Article 31(1), in which cases his property can be seized provided there is no

infringement of the inviolability of the person or his residence. Reliance on immunity and

inviolability in order to evade legal obligations is a serious matter and may lead to the receiving state

requiring the person to leave.

Waiver of immunity

The purpose of diplomatic immunity is to ensure the efficient performance of the functions of a

diplomatic mission; it is not for personal benefit. Immunity cannot therefore be validly waived by the

person enjoying it. It can be waived only by or on behalf of the sending state (Article 32(1)). The

law of the receiving state must determine whether immunity has been waived, and particular care

must be taken with criminal proceedings since the accused diplomat might challenge the waiver.

Waiver by the head of mission will normally be regarded as valid, unless it purports to be of his own

immunity; and most governments require a head of mission to seek authority before waiving the

immunity of any of his staff.

Waiver of diplomatic immunity must be express; it cannot be implied (Article 32(2)). Thus, if a

person enjoying immunity takes part in civil or criminal proceedings as a defendant, but without an

express waiver, the proceedings will be void. Informal or voluntary co-operation with proceedings

does not amount to waiver. Whether waiver can be given in advance of the events giving rise to

legal proceedings is not clear. However, since state immunity can be waived in advance,

advance waiver for the purpose of at least civil proceedings (e.g. disputes under a lease) may be

possible. It is most unlikely that advance waiver for criminal proceedings is possible, since, unlike

some civil transactions, one cannot predict the circumstances that may give rise to criminal

proceedings. Once validly waived in respect of particular proceedings, the immunity is lost for those

proceedings, but not otherwise.

On the other hand, if a person enjoying immunity initiates civil proceedings, he cannot invoke his

immunity in respect of any counter-claim directly connected with his claim (Article 32(3)). But, if he

began the proceedings not knowing of his immunity, he will be entitled to have the proceedings

dismissed.

50. See p. 122 above.

51. See p. 165 below.

52. Denza, pp. 283–4.

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In civil proceedings, waiver of immunity from execution of the judgment requires a separate waiver

(Article 32(4)). It is probable that this does not apply to criminal proceedings because the penalty is

inseparable from the finding of guilt, and the practice of states seems to support this.

Social security exemption

Since a diplomatic agent will continue to be subject to the social security legislation of the sending

state, he is exempt from local social security obligations (Article 33(1)). A private servant who is in

his sole employ is also exempt if he is not a national of or ‘permanently resident’

in the receiving

state and is covered for social security by the sending state or a third state (paragraph 2). But, if that

exemption does not apply, the diplomatic agent must carry out the employer’s obligations under

local social security legislation (paragraph 3). Although the Convention does not provide specifically

that a mission must comply with local social security legislation in respect of those of its staff who

are not exempt (mostly locally engaged), sending states increasingly take the view that they should –

as good employers – ensure that local social security contributions for non-exempt staff are paid by

the mission. Even when a member of a mission is exempt, he can take part in the local social

security scheme if this is permitted by local law (paragraph 4). Nothing in Article 33 affects the

provisions of social security agreements past or future (paragraph 5).

Exemption from taxation

Although he remains subject to taxation by his sending state, a diplomatic agent is exempt in the

receiving state from ‘all dues and taxes, personal or real, national, regional or municipal’ (Article

34). This exemption is very broad and includes direct and indirect taxation. But there are important

exceptions to the general exemption:

‘[I]ndirect taxes of a kind which are normally incorporated in the price of goods and services’.

The main indirect taxes are value added taxes and sales taxes. The exception is interpreted in

two ways. Some states, particularly the United Kingdom, do not grant general exemption for

53. But see Denza, pp. 284–6.

54. See p. 149 below.

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value added tax even when the amount is identifiable at the point of sale. Many states take the

contrary view and either provide tax exemption cards or have refund procedures. Other states,

including the United Kingdom, allow as a concession certain refunds on high-value goods.

‘[D]ues 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 purpose of the mission’. Although the

intention as to the scope of this exception is not clear,

it would appear from state practice

since 1961 that most receiving states now exempt the residence of a diplomatic agent from

local property taxes, although sometimes on the basis of reciprocity (see Article 47(2)(b)).

Accommodation used for purely private purposes, such as a weekend cottage, is not exempt.

‘[E]state, succession or inheritance duties levied by the receiving state, subject to the

provisions of paragraph 4 of Article 39’. See the discussion of Article 39.

‘[D]ues 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’. A diplomat cannot

enjoy exemption from taxation on local investments. There are, of course, other ways in which

expatriates can lawfully arrange their finances so as to minimise tax.

‘[C]harges levied for specific services rendered’. See the discussion of Article 23.

‘[R]egistration, court or record fees, mortgage dues and stamp duty, with respect to immovable

property, subject to the provisions of Article 23’. The fees, dues and duties referred to all relate

only to ‘immovable property’, i.e. land and buildings. The proviso about Article 23, which

exempts the premises of the mission from all taxes except those which represent payment for

specific services rendered, means that, for example, if the fee payable for registration of the

transfer of legal title to the residence of a diplomatic agent is quite out of proportion to the cost

of that service, and therefore amounts to a tax, there is exemption from at least the excess

amount.

In calculating the tax due on non-exempt income, any income that is exempt must be disregarded.

55. Denza, pp. 301–6.

56. See p. 150 below.

57. See p. 130 above.

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Exemption from personal services

Article 35 exempts a diplomatic agent from all personal services, from any kind of public service

(such as sitting on a jury), and military obligations, including those connected with requisitioning,

contributions and billeting of soldiers.

Exemption from customs duties and inspection

These exemptions are of considerable practical importance and can cause problems due to the

natural desire of a receiving state to prevent abuse of such valuable privileges and the natural human

weaknesses of diplomats.

Exemption from customs duties

Article 36(1) requires the receiving state to permit the import, free from all customs duties, taxes and

related charges, other than service charges, of ‘articles for the official use of the mission’ and

‘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’, this latter privilege continuing

throughout his posting. It is for the head of mission and the sending state to determine, in good faith,

what is covered by these formulas; these days they include even construction materials needed for

the premises of the mission. However, the receiving state is not under an obligation to allow the

entry of goods the import of which is subject to a general prohibition (cf. Article 41). It may, of

course, make exceptions on a concessionary basis. Similarly, since the Convention contains no

privileges regarding exports, any prohibition on exporting certain articles, such as antiquities,

applies equally to the mission and its staff.

These important import privileges are qualified by the right given to the receiving state to control

the exercise of the privileges by means of its laws and regulations in order to prevent abuse. They

can prescribe procedural formalities, restrictions on quantities, the period within which duty-free

entry of goods will be allowed on first installation (for those staff entitled to that privilege),

and

regulations on subsequent disposal of goods imported duty-free (a motor vehicle can usually be sold

locally only to a buyer entitled to the same import privileges).

58. See p. 148 below (A&T staff).

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Exemption from inspection

Article 36(2) generally exempts the personal baggage of a diplomatic agent from search, but permits

the receiving state to inspect it (including unaccompanied baggage) if there are ‘serious grounds’ for

presuming that it contains articles not covered by the exemptions in Article 36(1), or articles the

import or export of which is prohibited by its law or controlled by its quarantine regulations. The

inspection must be conducted in the presence of the diplomat or his representative. These conditions

do not apply to security searches required by airports or airlines.

A package which does not

constitute personal baggage is subject to normal inspection, unless it constitutes a diplomatic bag.

Members of the family of a diplomatic agent

The immunities and privileges in Articles 29–36 are also enjoyed by ‘the members of the family of a

diplomatic agent forming part of his household’, unless they are nationals of the receiving state

(Article 37(1)). The quoted formula certainly covers the spouse and any minor children, but practice

varies from state to state as to which other persons come within it. A student child who has reached

majority but lives with the diplomat is usually included, as also is a student who lives with him

during the vacations. Increasingly, non-married partners are being accepted; but probably not yet

same-sex partners. A widowed parent who lives as part of the diplomat’s household may be

accepted. Some states will not recognise more than one wife of a polygamous marriage. Difficult

cases will be the subject of consultations, but, if these do not result in agreement, in practice the

final decision lies with the receiving state.

Working spouses

Increasingly these days, diplomatic spouses of either sex want to work during a posting. Some states

make difficulties and refuse work permits, often citing as the reason the immunity of the spouse. Yet

the prohibition in Article 42 on a member of a diplomatic mission practising a profession or

commercial activity for personal profit does not apply to spouses. And anyway immunity should not

be an obstacle. Under Article 31(1)(c) the spouse will have no immunity from civil or administrative

jurisdiction in

59. See p. 137 above.

60. See p. 133 above.

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relation to work not undertaken for a diplomatic mission. The work will be subject to tax (Article

34(d)), and the person will have to satisfy any professional requirements. Thus a spouse who works

as, for example, a doctor, teacher or computer programmer will have to pay tax and can be sued in

respect of the work. Yet some receiving states make it a condition of granting a work permit to a

diplomatic spouse that his or her general immunity from jurisdiction be waived in advance. This is

wrong. Since the spouse will have no civil or administrative immunity in respect of the work, there

is no reason for a general waiver. Nevertheless, many states have found it necessary or prudent to

conclude bilateral reciprocal arrangements authorising their respective diplomatic spouses to work

subject to certain conditions and procedures.

Administrative and technical staff

Article 37(2) provides that a member of the administrative and technical (A&T) staff of the mission

(e.g. registry, secretarial, communications and security staff), and members of his family forming

part of his household, also enjoy the privileges and immunities in Articles 29–36, subject to certain

qualifications.

The exemption from civil and administrative jurisdiction in Article 31(1) is limited to acts

performed in the course of the officer’s duties. Thus, in addition to his official acts, he will be

immune in respect of acts incidental to his duties, such as driving to an official appointment.

Nevertheless, full immunity from criminal jurisdiction and inviolability of person, residence

and property is the same as that of a diplomatic agent.

The customs privileges in Article 36(1) are limited to goods imported on first arrival in the

receiving state, although a period of three to twelve months is usually allowed.

Service staff

Service staff are the members of the staff of the mission in its domestic service (Article 1(g)). They

are therefore those employed by the sending state, not by members of the mission. They include

drivers, kitchen staff, porters and gardeners. They enjoy immunity only in respect of ‘acts performed

in the course of their duties’. Evidence of the head of mission

61. Turkey–UK Agreement on Diplomatic Dependants’ Employment 2000, UKTS (2000) 98. And see

Denza, pp. 325–8.

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that a particular act was done in the course of the person’s duties will be persuasive, but not

conclusive. It is ultimately for the courts to decide. Service staff also are exempt from taxes on their

salaries and from social security contributions (Article 37(3)).

Private servants

A private servant is a person in the domestic service of a member of the mission, not one employed

by the sending state (Article 1(h)). He enjoys exemption only from taxes on his salary, and from

social security contributions provided he is covered by a social security scheme in another state

(Article 33(2)). But the receiving state must exercise its jurisdiction ‘in such a manner as not to

interfere unduly with the performance of the functions of the mission’. This obligation can be

discharged by the exercise of administrative discretion.

Nationals and permanent residents of the receiving state

Unless the receiving state grants additional privileges and immunities, a diplomatic agent who is a

national of, or is permanently resident in, the receiving state enjoys only immunity from criminal

and civil jurisdiction, and inviolability, in respect of ‘official acts performed in the exercise of his

functions’ (Article 38(1)). This immunity is narrower than that of a member of the A&T staff, and

amounts, in effect, to state immunity. All other members of the staff, and private servants, who are

nationals or permanent residents of the receiving state enjoy privileges and immunities only to the

extent allowed by the receiving state, although it must exercise its jurisdiction over them ‘in such a

manner as not to interfere unduly with the performance of the functions of the mission’ (Article

38(2)).

A constant problem is in applying the concept of ‘permanently resident’. Certain factors may well

point to an intention to permanently reside in the receiving state: having been recruited locally;

marriage to a permanent resident of the receiving state; other substantial personal links forged with

the receiving state; and little likelihood of being posted after five years’ service with the mission.

But each case has to be dealt with on its own facts. Determining whether or not a particular person is

a permanent resident may have to be discussed by the receiving and sending states, or, if necessary,

decided by a court.

62. See generally Denza, pp. 343–9.