1 See the Index for references to this case throughout the book.
2 The Covenant of the League of Nations made provision for representatives of Members of the League and officials to enjoy diplomatic privileges and immunities when engaged on business of the League, and accorded inviolability to the buildings of the League and of representatives attending meetings.
3 In the UK it was not until the International Organizations Act 1968 that the Crown was empowered by Order in Council to confer immunity from suit and legal process (terms construed in JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1990] 2 AC 418) in the UK upon any international organization of which the UK is a member and also to confer immunities similar to those accorded to the head of a diplomatic mission upon representatives of the organization. Unlike US law, there is no UK legislative direction to treat International Organizations as analogous to States.
4 For a general account, see Denza and Fox, ‘Legal Framework for Multilateral Diplomacy’ in Roberts (ed), Satow’s Diplomatic Practice (6th edn, 2011), Ch 21, paras 21.2-21.31; Collins (gen ed), Dicey, Morris and Collins on the Conflict of Laws (16th edn, 2012)10-R060-077, 359–65 (hereinafter Dicey).
5 Bradlow and Hunter, ‘Introduction’, in Bradlow and Hunter (eds), International Financial Institutions and International Law (2010) xxv, citing the Reparations Opinion, 180.
6 UN Charter, Art 2(1).
7 Schermers, 22.
8 Bindschedler, ‘International Organizations: General Aspects’ (1983) 5 Encyclopaedia of Public Int Law 119 at 120. See generally Schmalenbach, ‘International Organizations or Institutions, General Aspects’ in Rudiger Wolfrum (ed) (2012), MPEPIL; Henry G Schermers and Niels M Blokker, International Institutional Law (4th edn, 2011); Bowett, The Law of International Institutions (6th edn, 2009) (ed Sands and Klein), 486, paras 15-034 et seq.
9 It remains questionable whether there is any general law of international organizations or only a law specific to each organization derived from its constituent treaty. The law of organizations aimed at integration cannot be compared with the law of organizations aimed at cooperation: Virally, ‘Definition and Classification of International Organizations: A Legal Approach’ in Abi-Saab (ed), The Concept of International Organizations (1981), 50 at 63.
10 Muller, International Organizations and their Host States (1995), Ch 5, 156–7.
11 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1989] Ch 72, CA, 196–203, 252–3.
12 Dicey, para 10-087.
13 There no immunity where the HQ agreement is not yet in force: League of Arab States v T, Belgium Ct of Cassation, 12 March 2001; 127 ILR 94.
14 13 February 1946, UNTS 1, 17. See The Applicability of Article VI, section 22 of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, ICJ Reports 1989, 177 (the Mazilu case); and Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, Advisory Opinion of 20 April 1999, ICJ Reports 1999 (the Cumaraswamy Case).
15 Bekker, ‘The Work of the International Law Commission on “Relations between States and International Organizations” Discontinued: An Assessment’ (1993) 6 Leiden J of Int L 3.
16 Article 89 of the Convention requires 35 instruments of ratification for entry into force. As of 2012, the Convention had 34 parties. The United Kingdom and the United States are not parties (1986) 25 ILM 543. ‘[T]he draft articles presented a rather liberal regime … on the representation of States to international organizations conferring broad immunities upon representatives (including their families) to international organizations, to the extent of virtually equating permanent missions of member States and permanent observer missions of non-member States to international organizations with traditional diplomatic missions’: Bekker, ‘The Work of the International Law Commission on “Relations between States and International Organizations” Discontinued: An Assessment’, 20.
17 Articles 2 and 90.
18 Reinisch, International Organisations before National Courts (2000), 144. Akande, ‘International Organisations’ in Evans (ed), International Law (2nd edn, 2006), 277 at 281.
19 Scimet v African Development Bank, Belgium Ct of first instance, 14 February 1997; 128 ILR 582. In the UK, any question of entitlement to immunity by an international organization or any person in connection therewith is determinable by a certificate issued by the Secretary of State, which certificate is conclusive of any fact stated therein: International Organisations Act 1968, s 8 and 1981 Act. Such a certificate, however, does not determine the existence of any international organization in English law. Following the House of Lords’ decisions in JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1990] 2 AC 418 and the Arab Monetary Fund v Hashim (No 3) [1991] 1 All ER 871, the Foreign Corporations Act 1991 was enacted to permit English courts to give recognition to the legal capacity of organizations incorporated in countries whose governments are not recognized in the UK provided there is a stable regime with settled laws. See Dicey, para 10-082 fn 231.
20 A claim of ECOWAS to an ‘objective international personality’ was rejected since France was not a party to the treaty establishing ECOWAS. ECOWAS v BCCI, French Ct of Appeal, Paris, 13 January 1993; 113 ILR 473.
21 See discussion in Crawford, Brownlie’s Principles of Public International Law (8th edn, 2012), 173–4, Reinisch, International Organizations before National Courts (2000) and Wellens, Remedies Against International Organizations (2002), Ch 12 as to whether customary international law is a source of immunity for international organizations. The Dutch Supreme Court has stated that where there is no treaty, ‘it follows from unwritten international law that an international organization is entitled to the privilege of immunity from jurisdiction on the same footing as generally provided for in [such] treaties’: Spaans v Iran-US Claims Tribunal, NJ 1986/438, ILDC 1759 (NL 1985). The US Restatement Third specifies that international organizations, referring only to universal organizations, are entitled in custom to ‘such privileges and immunities as are necessary for the fulfillment of the purposes of the organization, including immunity from legal process and from financial controls, taxes and duties’, para 467(i).
22 Virally, ‘La Notion de fonction dans la théorie de l’organization internationale’ in Mélanges Offerts à Charles Rousseau: La Communité Internationale (1974), 277 at 299–300.
23 Dominicé, ‘L’immunité de juridiction et d’execution des organizations internationales’ (1984–IV) 187 R de C 157 at 220.
24 Or it may unusually be in the form of an exchange of letters, see Letter from the President of the International Court of Justice to the Minister for Foreign Affairs of the Netherlands, 29 June 1946; Letter from the Minister for Foreign Affairs of the Netherlands to the President of the International Court of Justice, 26 June 1946; Letter from the Minister for Foreign Affairs of the Netherlands to the President of the International Court of Justice, 26 February 1971. See generally Herbst, ‘International Organizations or Institutions, Headquarters’ in Rudiger Wolfrum (ed) (2012) MPEPIL para 14.
25 The HQ Agreement between UK and European Centre for Medium-Range Weather Forecasts UK Treaty Series, No 2 (1976) spelt out in terms of UK law and practice the privileges and immunities to be accorded to the Centre, cf HQ Agreement between GB and IMCO (now the International Maritime Organization) UK Treaty Series, No 18 (1969), which accorded certain additional financial privileges to the senior officers of the Organization which were not required by the UN Specialized Agencies Convention. As the first headquarters agreement concluded between the UK and an International Organization, primary legislation (the International Organizations Act 1968) was required before it could be brought into force.
26 1947 HQ Agreement between the US and the United Nations 11 UN Treaty Series, 11 and HQ Agreement between Switzerland and the United Nations 1 UN Treaty Series, 163. Until 2002, Switzerland was not a member of the United Nations.
27 All of the HQ commodity organizations with the UK called for the negotiation of a headquarters agreement between the host State and the organization (there being little general need for privileges and immunities in other member states, except as regards taxation of the organization) and the agreement, which followed generally the precedents of European Space Research Organization (ESRO) and the European Launcher Development Organisation (ELDO) described below, was approved by the Council of each organization before signature.
28 Sands and Klein, (6th edn, 2009), 508–16.
29 The Judges of the ICJ and the Judges and Prosecutor of the ICC also enjoy this status: ICJ Statute, Art 19; ICC Agreement on Privileges and Immunities, Art 15.
30 ICC Agreement on Privileges and Immunities, Arts 18–20; ICSID Convention, Arts 21–2.
31 General Convention, Art IV section 11. As mentioned above, the Vienna Convention on the Representation of States in their Relations with International Organizations is not yet in force.
32 Bekker,‘The Work of the International Law Commission on “Relations between States and International Organizations” Discontinued: An Assessment’, 118–21.
33 The unsuitability of the de jure gestionis/de jure imperio dichotomy applied to international organizations is illustrated by a decision of the Zimbabwe Supreme Court when, in respect of a claim made by an employee of the International Committee for the Red Cross, it ruled that the restrictive doctrine of State immunity deprived the claim of immunity because the act in issue was of a private law character International Committee of the Red Cross v Sibanda (2007) 28 ILJ 738 (ZS).
34 Sassetti v Multinational Force and Observers Italy Examining Magistrate, 14 March 1994; 128 ILR 640; Ruperas v EUTELSAT, French Ct of Appeal Paris, 20 May 1999; 127 ILR 139; Scimet v African Development Bank, Belgium Ct of First Instance, Brussels, 14 February 1997; 128 ILR 582; Firma Baumeister Ing Richard L v O, Austrian Supreme Court, 10 Ob 53/04 Y, ILDC 362 (2004), para 12 (‘the immunity of international organizations, within the framework of their functional restrictions, is to be regarded in principle as absolute’).
35 Muller, Ch 5, 153.
36 European Molecular Biology Laboratory v Germany, Arbitration Award, 29 June 1990, 105 ILR 1 (1997).
37 Stichting Mothers of Srebrenica, Court of Appeal, 30 March 2010, para 4.5; Stichting Mothers of Srebrenica, Supreme Court, 13 April 2012. The Supreme Court also applied the ICJ’s ruling in the 2012 Jurisdictional Immunities Judgment that there is no customary rule making the entitlement to immunity dependent on the existence of effective alternative means of securing redress.
38 General Convention, sections 20 and 23.
39 Verdirame, The UN and Human Rights: Who Guards the Guardians? (2011), 357.
40 The World Bank and associated institutions have entered into a waiver in respect of commercial transactions in the US which is incorporated into US legislation: Lutcher SA Celulose e Papel v Inter-American Development Bank 382 F.2d 454 (DC Cir 1967).
41 The Cumaswaramy Case, para 61.
42 General Convention, section 2.
43 UN Privileges and Immunities Study (1967), 225.
44 Verdirame, The UN and Human Rights: Who Guards the Guardians?, 357–8.
45 Article 18 (April 2012 version).
46 Megret and Hoffmann, ‘The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities’ (2003) 25 HRQ 314; Verdirame, The UN and Human Rights: Who Guards the Guardians?
47 See, eg, Art VII, s 3 of the IBRD Articles of Agreement. Reinisch and Wurm, ‘International Financial Institutions before National Courts’ in Bradlow and Hunter, 105.
48 Reinisch and Wurm, ‘International Financial Institutions before National Courts’ in Bradlow and Hunter, Ch 4.
49 For example, the 1946 UN General Convention confers ‘immunity from every form of legal process’ (Art II, s 2) except where there is express waiver, and requires the UN to make provision ‘for appropriate methods of settlement of: (a) disputes arising out of contracts or other disputes of a private character to which the United Nations is a party; (b) disputes involving any official of the United Nations who by reason of his official position enjoys immunity, if immunity has not been waived by the Secretary-General’ (Art VIII, s 29(a)).
50 UN Procurement Manual (2011), s 15.5, para 3.
51 International Telecommunications Union ILOAT Judgment No 2540 [2006] para 27.
52 See eg GA Res 57/307 and 59/266. See also the management review of the appeals process conducted by OIOS (A/59/408) and Theodor Meron, The United Nations Secretariat (1977), 159–71. The allegations of bias arose from the fact that the internal justice system was mostly handled within the Department of Management, the same entity making decisions on human resources and disciplinary matters.
53 A/61/205. Gulati, ‘The Internal Dispute Resolution Regime of the United Nations’ (2011) 15 Max Planck Yearbook of United Nations Law 489.
54 AIG Capital Partners Inc and Anr v Kazakhstan [2005] EWHC 2239 (Comm); [2006] 1 All ER (Comm) 284, paras 62–84; Grovit v De Nederlandsche Bank NV [2005] EWHC 2994 (QB); [2006] 1 WLR 3323, upheld on appeal.
55 UN Doc.A/45/594, para 51; Shraga, ‘UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations Related Damage’ (2000) 94 AJIL 406.
56 For a full discussion of this question, see the special issue of the International Organizations Law Review (forthcoming, 2014) publishing the proceedings of the Leiden Conference: ‘Immunity of International Organizations: Functional necessity or out of date?’
57 The subject of immunities of international organizations was on the agenda of the ILC for 30 years, but the Draft Articles were not referred back to the plenary from the Drafting Committee and the ILC decided in 1992 to put the topic aside for the moment as it did ‘not seem to respond to a pressing need of States or of international organisations’: YBILC 1992, Vol II (Part Two), p. 53, para 362.
58 YBILC 2006 A/61/10, p 455.
59 YBILC 2006 A/61/10, p 458.
60 Bekker suggested that since privileges and immunities have to be tailored to the specific characteristics of the IO concerned, the adoption of ‘Model Rules on Organizational Immunities’ might prove more successful than a multilateral convention (at 12).
The immunities afforded to State officials may, however, have greater value as a model for the immunities of officials of international organizations.
61 See, eg, the different approach to waiver taken by international financial institutions as compared to organizations with more general functions (UN) or different, non-financial functions (Organization of African Unity, NATO).
62 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986 is still not in force; the Draft Articles on the Responsibility of International Organizations 2011 have attracted criticism from international organizations and commentators.
63 Although the Declaration on Principles of International Law concerning the Friendly Relations and Cooperation among States, adopted by the UN General Assembly in 1970 (GA Res 2625 (XXV)) proclaims the duty of States to cooperate with one another, it requires no right of legation. At most a State may be required to receive a delegation of another State which has an interest which it wishes to communicate. Jennings and Watts (eds), Oppenheim’s International Law II (9th edn, 1992), 1056, para 464 states, ‘it is controversial whether (apart from treaty) the sending and receiving of diplomatic envoys involves a right in the strict legal sense, or whether it is rather a matter of competence’. See generally Denza, Diplomatic Law (3rd edn, 2008).
64 See generally, Salmon, Manuel de droit diplomatique (1994); Denza, Diplomatic Law, 8; van Alebeek, The Immunities of States and their Officials in International Criminal Law and International Human Rights Law (2008), Ch 4.
65 Vienna Convention on Diplomatic Relations 1961, Art 3. Dembinski, Modern Law of Diplomacy (1988), 27.
66 Grotius, De Jure Belli et Pacis (1625), Book II, Ch XVIII, para 5 ‘as according to the law of nations the ambassador represents in a kind of fiction the actual person of his master, so he is regarded, by a similar fiction, as being outside the territory of the power in respect of whom he exercises his functions’.
67 Salmon, Manuel de droit diplomatique, paras 271–3. In Radwan v Radwan (No 2) [1972] 3 WLR 939; [1972] 3 All ER 1926; [1972] 3 WLR 735, the English court refused to treat a talaq divorce pronounced in the premises of the London Consulate-General of the United Arab Republic as a divorce obtained ‘in a country outside the British Isles’.
68 Satow’s Guide to Diplomatic Practice (5th edn, 1979), 107.
69 See Convention Relating to Crimes against Internationally Protected Persons Including Diplomats 1993; 1035 UNTS; 167 ILM 13 (1974) 42. Statement of France on behalf of EU to UNGA Sixth Committee, 18 October 2000 (2000) 71 BYIL 585.
70 Chapter 9; the UN Convention’s relation to other conventions and Exclusions. But note, as discussed below and in Ch 14 in regard to employment contracts, para 2(b) expressly provides that the exception to State immunity set out in para 1 shall not apply to ‘(i) a diplomatic agent’, ‘(ii) a consular officer’, or ‘(iv) any other person enjoying diplomatic immunity’. Read with the exclusion in UNCSI, Art 3 this leaves in doubt the extent to which members of a mission other than the diplomatic agent are subject to the jurisdiction of the courts of the State in which the mission is located.
71 Consequently, the temporal limitation in Art 25 to other ‘existing’ international conventions has no application to the matters excluded by Art 3; the provisions of the UN Convention would thus have no application to any international agreement relating to diplomatic immunities whether in force either before or subsequent to the coming into force of the UN Convention.
72 The relation of bilateral agreements with multilateral conventions may depend on which preceded the other in time. In general, Art 30 VCLT provides a scheme for resolving any conflicts. Once a general international convention, such as that on diplomatic or consular relations, is in force, States are likely to conform their bilateral provisions to its requirements. Where it merely provides a residuary rule, other rules may be adopted, Lee, Consular Law and Practice (2nd edn, 1991), Ch 40, 623–7.
73 Denza, Diplomatic Law, 8.
74 Grotius, De Jure Belli et Pacis, Book II, Ch XVIII, iv, 5, 6, and 7.
75 Bynkershoek, De Foro Legatorum (1735), Ch XVIII.
76 Dicey, 359–65. For the British practice relating to both the position of the immunity of foreign diplomatic missions in the UK and of British diplomatic missions overseas, see Diplomatic Privileges and Immunities: Memorandum describing the practice of HMG in the UK issued by the Protocol Department of the FCO in July 1992, reproduced in (1992) 63 BYIL UKMIL 688 n, and Circular No 117/96, dated 14 March 1996 reproduced in (1996) 67 BYIL UKMIL 740.
77 This includes no liability to any form of arrest or detention, VCDR, Art 29. In an incident in 1980 when two East German diplomats were arrested, the matter was transferred by the Four Powers in Berlin to the West German authority, who expelled them (1981) 85 RGDIP 106.
78 In re P [1998] 1 FLR 1026.
79 In the UK’s view the congestion charge on vehicles entering central London ‘does not constitute a form of direct taxation under the VC, but is a charge analogous to a motorway toll’, and diplomats are expected to pay it (2005) 76 BYIL 848; The Times 5–6 April 2006. The US Embassy, along with a great number of other embassies, has opposed the congestion charge, claiming it is a tax: US Embassy London to Foreign and Commonwealth Office, Diplomatic Note, 11 July 2005, Digest of United States Practice of International Law (2005), 570. The FCO has replied that it is not a tax but ‘akin to a toll or other kinds of charge that are not in the nature of taxes and therefore cannot be avoided’ (2006) 77 BYIL 742–3. For a full account, see Denza, Diplomatic Law, 370–3.
80 In re C an Infant [1958] 3 WLR 309. Proceedings to make a ward of court the son of a Greek national employed at the Greek embassy were held immune as the father had a ‘say’ in the son’s education though he was not living with him. Denza, Diplomatic Law, 394. The definition of family member is widely accepted as applying to the diplomat’s spouse and minor children, but State practice differs as regards unmarried partners, same-sex partners, or polygamous marriages. (Denza, Diplomatic Law, 396). O’Keefe (1976) 25 ICLQ 329.
81 The inviolability of residence was held not to extend to affording immunity for causing the non-accidental injury to a child therein: In re B (A Child) (Care Proceedings—Diplomatic Immunity) [2003] 2 WLR 168 at 175.
82 Bruising and beating a child resulting in the bringing of family proceedings including care proceedings were to be held to be outside such official duties, see In re B (A Child) (Care Proceedings—Diplomatic Immunity) [2003] 2 WLR 168 at 175. Whomersley (1992) 41 ICLQ 848.
83 For the position of members of diplomatic missions of Commonwealth countries who are nationals of the sending State and have British nationality, see Diplomatic Privileges (British Nationals) Order 1999 (1999) 70 BYIL 491.
84 Dickinson v Del Solar [1930] 1 KB 376.
85 Empson v Smith [1966] 1 QB 426; Shaw v Shaw [1979] 3 All ER 1.
86 Judgment, 24 May 1980, ICJ Reports 1980, 3 at para 86.
87 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports 2005, paras 323–4.
88 PCA Eritrea/Ethiopia Claims Commission Eritrea’s Claim 20, 19 December 2005, Award D.1 and 2.
89 PCA Eritrea/Ethiopia Claims Commission, Ethiopia’s Claim 9, 19 December 2005, Award D.1 and 2.
90 US House Report, 94–1487. On reflection a view put forward in the first edition of this book that a diplomat who assumes personal liability in addition to the State as principal in respect of a commercial contract would not enjoy immunity under the restrictive doctrine appears erroneous. Whilst in substantive law he might have incurred such a liability his immunity as a diplomat would bar proceedings, at least as long as he was in office.
91 Intpro Properties (UK) Ltd v Sauvel and Ors [1983] 1 QB 1019; [1983] 1 All ER 658, Bristow J; [1983] 2 All ER 495, CA: accepted jurisdiction against the French State, not the diplomat who occupied the house as his private residence, for refusal of entry and damage resulting from dry rot. The claim was held not to relate to the foreign State’s title to or possession of the house nor to its use as a diplomatic mission within the exclusion of SIA, s 16(1)(b). Cf Jurisdiction over the Yugoslav Military Mission (Germany) (1962) 38 ILR 162. De Andrade v De Andrade 118 ILR 299 (1984-87) 11 Aust YBIL 472 (Justice Renaud), in the context of divorce proceedings a wife’s application to the court to determine the rights of herself and her diplomat husband to property was held by the Australian Family Court not to be within any of the exceptions contained in Art 31 VCDR because they all related to the marriage (‘the most closely tied [area of life] to the social and cultural mores of the country of origin of the parties’). See also Diplomatic and Consular Premises Act 1987; R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Samuel, The Times, 17 August 1989; (1989) 83 ILR 232, CA.
92 The sending State may exercise diplomatic protection in respect of a diplomat or consul injured outside his official functions: ILC Articles on Diplomatic Protection, Commentary to Art 1, para 13, ILC Report, 58th Session (2006), A/61/10, 24. ‘Diplomatic protection merely covers protection of nationals not engaged in official business on behalf of the State. These officials are protected by other rules of international law such as the VCDR of 1961 and the VCCR of 1963. Where, however, diplomatic or consular officials are injured in respect of activities outside their functions, they are covered by the rules relating to diplomatic protection, as for instance, in the case of expropriation without compensation of property privately owned by an official in the country to which he is accredited.’
93 Tabion v Mufti, 73 F.3d 535 (1995); Bayani v Russel, 15 October 1986, Industrial Tribunal Case No 1812/67 (the hiring of a servant for the private residence of diplomat is not an immune transaction); Fonseca v Larren Hafner, Portuguese cases/8 (1991).
94 Pinochet (No 3) [1999] 2 All ER 97, per Lord Browne-Wilkinson at 112.
95 Baoanan v Baja 627 F.Supp.2d 155 (SDNY 2009); Swarna v Al-Awadi 622 F.3d 123 (2nd Cir 2010); Wokuri v Kassam [2012] EWHC 105 (Ch); Abusabib & Anor v Taddese, UKEAT/0424/11/ZT (2012).
96 Diplomatic immunity was stated by the Danish Minister of Justice to prevail over the obligation of Denmark as a State Party to the 1984 UN Convention of Torture to prosecute for alleged torture the Israeli Ambassador, who formerly served as head of the Israeli Security Services; Hartmann, ‘The Gillon Affair’ (2005) 54 ICLQ 745.
97 For commentary, see Akande and Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21 EJIL 815, 849 et seq.
98 Former Syrian Ambassador to the German Democratic Republic, Case No 2 BvR 1516/96 (1997), 115 ILR 595 at 607.
99 In the Former Syrian Ambassador case, the German court did not consider it relevant whether the acts in question may have fallen outside the scope of Art 3 of the VCDR, 115 ILR 595 at 605–7.
100 Adler Monica Courtney and others, No 12428/09, verdict of 4 November 2009, judgment delivered by Dr Oscar Magi, registered on 1 February 2010 (Italy Fourth Criminal Section of Milan Tribunal), II-93. Cited in Akande and Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’, 850 n 162.
101 Knab v Republic of Georgia (DDC 29 May 1998) as reported by Murphy, US Practice in International Law (1999–2001), 86–8. Immunity from criminal proceedings was waived by the State of Georgia in respect of a diplomat who was subsequently convicted of dangerous driving, but the US Court upheld the State Department’s assertion that there had been no waiver by Georgia of immunity in respect of civil proceedings; Georgia’s explicit waiver of criminal immunity established no such waiver and residual immunity survived since the act was done in the course of the diplomat’s official duties.
102 A Company v Republic of X [1990] 2 Lloyd’s Rep 520 at 524. Denza treats this as a ruling with regard to immunity from execution of mission premises and states that a prior undertaking by a State to waive diplomatic immunity from adjudication ‘provided the undertaking was given in clear terms and for consideration’, should be treated as a valid waiver, Denza, Diplomatic Law, 338–40, quoting the EU advance waiver in its 2006 Agreement. Denza’s view is confirmed by NML ruling that State submission to the jurisdiction was never a requirement of common law, see Ch 11. Cf NML Capital Ltd v République Argentine, France Cour de Cassation I civ 28 September 2011, JDI 139 (2012) 668 rejecting a general waiver clause as constituting consent to attachment of the account of a diplomatic mission.
103 See also Chapters 16 and 17 on immunity from enforcement.
104 Syndicat des coproprietaires de 14/16 Boulevard Flandrin, Paris Appeal Court (Third Chamber) 1992, 113 ILR 470–2. Qatar had erected a structure on the terrace without the prior approval of the syndicat. The French Conseil d’Etat has ruled that under certain circumstances the French State may have to compensate individuals who are seriously prejudiced by the application of the rule of diplomatic immunity by the French courts: Ministre des relations exterieures v Tizon et Millet, 1 June 1984 (1985) 31 AFDI 928.
105 As regards the immunity from enforcement, the UK Foreign Office has stated, ‘The Government cannot introduce a policy of wheel clamping of diplomatic vehicles as this would be in breach of International Law’ (citing Art 31(1) VCDR). HC, Hansard, vol 440, col 2478 (19 December 2005). Denza, Diplomatic Law, 160–1, 278–9.
106 Permanent Mission of India to the United Nations v New York (14 June 2007). The US Supreme Court held that the FSIA 28 USC §1602 et seq does not immunize a foreign sovereign from suit to determine the legitimacy of tax liens on property it owns to house its employees.
107 See Ch 7 on the UK SIA, structure of the Act; see also Ch 14 above on the exception for employment contracts.
108 See further Ch 13 regarding UNCSI Art 13(a) and Chs 16 and 17 regarding UNCSI Art 21(1)(a) Diplomatic property.
109 Aziz v Aziz and Sultan of Brunei [2007] EWCA Civ 712 (11 July 2007), per Lawrence Collins LJ, para 86 citing US Diplomats and Consular Staff in Tehran (1980) ICJ Rep 3 at 38; Congo v Uganda, ICJ Reports 2005; Minister for Foreign Affairs and Trade v Magno (1992–3) 112 ALR 529; Wright v McQualter (1970) 17 FLR 305 at 321; Boos v Barry 485 US 312 (1988) and Denza (2nd edn), 144–5 now Denza, Diplomatic Law (3rd edn), 173–4.
110 Maria B v Austrian Cultural Institute in Warsaw Poland Supreme Ct, 25 March 1987; 82 ILR 1; Spain v X canton debt office, 30 April 1986, Fed Trib Rev SDIE (1986) 158 Hafner, CH/10.
111 United Arab Republic v Mrs X, Swiss Federal Tribunal, 10 February 1960; 65 ILR 384.
112 Aldona S v Royaume Uni, Poland Supreme Ct, 14 December 1948, JDI (1963) 191.
113 [1964] 2 QB 352.
114 Satow’s Guide, 131. Cf The German Federal Constitutional Court commenting on the exceptions to the diplomat’s immunity set out in Art 31(1) of the VCDR: ‘That Article governs the personal immunity of diplomats. The extent of this immunity differs from that of State immunity; generally, it extends further. In principle, therefore, the extent of State immunity cannot be determined from that of diplomatic immunity.’ The Paris Court of Appeal (Third Chamber) similarly found that Art 31 VCDR concerned only the immunity of diplomatic agents: Syndicat des coproprietaires de 14/16 Boulevard Flandrin, Paris Appeal Court (Third Chamber) 1992, 113 ILR 470–2.
115 But see Ch 14 under Article 11(2)(b)(iv).
117 Denza, Diplomatic Law, 66.
118 Wallishauer v Austria (App No 156/04) Judgment 17 July 2012; however nationals of the sending State staff and those employed long term or engaged in the political or security aspects of the embassy’s work remain immune. The US opposition to the proceedings in this case turned more on whether service of notice of the employment proceedings on the US Ministry of Justice constituted an infringement of US sovereignty, than to the employee’s complaint about the employment contract.
119 In a criminal case it was held that Art 40 is not limited to cases of mere transit: R v Guildhall Magistrates’ Court, Ex p Jarrett-Thorpe, The Times, 6 October 1977. Dicey, para 10-071, fn 194.
120 Former Syrian Ambassador to the German Democratic Republic, Case No 2 BvR 1516.96; 115 ILR 596, German Fed Const Ct, 10 June 1997, Legal Opinion of Georg Ress and Larl Doehring delivered to the German Fed Const Ct, Archiv des Völkerrechts 1999, 68.
121 These rulings of the Constitutional Court are highly controversial, and were given in contradiction of an opinion provided to the Court by Professors Doehring and Ress, and have been criticized. Casenote by Fassbender, 92 AJIL 74.
122 Akande and Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’, 851. For a contrary view, see van Alebeek, The Immunities of States and their Officials in Internatonal Criminal Law and International Human Rights Law, Ch 4.
123 Former Syrian Ambassador to the German Democratic Republic, 610.
124 Were this continuing immunity to apply vis-à-vis third States, the diplomat would be subject to the jurisdiction of the third State for his official acts during the period of his office, but suddenly immune with respect to the same official acts upon termination of the mission.
125 Denza, Diplomatic Law, 255–376. A further exception is made in the Consular Convention Act 1949 which makes provision for the grant of probate or letters of administration to foreign consular officers in respect of foreign nationals dying possessed of property in the UK and deprives them of any immunity in respect of any act done in connection with any such grant: s 3.
126 Frulli, Immunita e Crimini Internazionali (2007), 23–60, citing decisions of the Supreme Court of New Zealand in L v The Crown 68 ILR 175 (consular official’s sexual assault against passport applicant unconnected with the consular function); Rissmann, Italian Court of Cassation (1976) 2 IYIL 339.
127 Gerritsen v de la Madrid Hurtado, 819 F.2d 1511 (9th Cir 1987); 101 ILR 175, interference by consular officer with distributor of leaflets outside Mexican Consulate by kidnapping and assault not acts within official function, and hence no immunity.
128 But see James (1991) 62 BYIL 347 at 354–7, 382–4.
129 See also Arts 53, 57, 58, and 71.
130 Cmnd 9247; Whomersley (1985) 34 ICLQ 621.
131 See Sari, ‘The EU Status of Forces Agreement: Change and Continuity in the Law of Visiting Forces’ (2007) 46 Military Law and the Law of War Rev 9–254; Fleck (ed), The Handbook of the Law of Visiting Forces (2001); Bassiouni, ‘Legal Status of US Forces in Iraq from 2003–2008’ (2010) 11 Chicago J IL 1–38.
132 The Schooner Exchange, 7 Cranch 116, where Marshall CJ referred to the grant of free passage as implying ‘a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of the army may require’ at 40. See Halsbury, Laws of England (4th edn, 2000), vol 18(2) ‘Foreign Relations’, para 929.
133 Per Hoffmann LJ in Littrell v USA (No 2) [1994] 4 All ER 203 at 215; [1995] 1 WLR 82; 100 ILR 438; citing Dixon J in Chow Hung Ching v R (1948) 77 CLR 449 at 482.
134 The Jurisdictional Immunities judgment upholds immunity in a situation of armed conflict, but did not comment on the availability of immunity in peacetime.
135 Reference re Exemption of United States Force from Canadian Criminal Law [1943] SCR 483; Barton, ‘Foreign Armed Forces: Immunity from Supervisory Jurisdiction’ (1949) 26 BYIL 380; Barton, ‘Foreign Armed Forces: Immunity from Criminal Jurisdiction’ (1950) 27 BYIL 186; Barton, ‘Foreign Armed Forces: Qualified Jurisdictional Immunity’ (1934) 31 BYIL 341.
136 See eg Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq. See also CPA Order No 17 issued in June 2003 by which the Coalition Provisional Authority formalized the status and arrangements governing the presence of the multinational force (MNF), including the UK armed forces, in Iraq. CPA Order No 17 provided all coalition personnel were to be subject to the ‘exclusive jurisdiction of their Sending States’ (s 2(3)) and immune from legal process and arrest or detention (s 2(1), (3)).
137 Denza and Fox, Legal Framework for Multilateral Diplomacy, Ch 21; Satow’s Diplomatic Practice (6th edn, 2011), para 21.33.
138 PJ Conderman, ‘Jurisdiction’ in Dieter Fleck (ed), The Handbook of the Law of Visiting Forces (2001), 99, 103.
139 Denza and Fox, Legal Framework for Multilateral Diplomacy, Ch 21; Satow’s Diplomatic Practice (6th edn, 2011), para 21.35.
140 The background was the abduction of a terror suspect, Abu Omar, from Milan by US agents. He was brought to a US airbase in northeast Italy and flown to Egypt where he was held at the Egyptian military intelligence headquarters. A criminal trial began in Italy in June 2007 against seven members of the Italian military intelligence and 26 Americans, of which 25 were allegedly CIA operatives and one, Lt Col Romano, was a US Air Force Officer. None of the US defendants were present for the proceedings and the trial was conducted in absentia. In September 2009, US notified the Italian government that any acts or omission by Romano were done in the performance of his official duties and under the NATO SOFA, the US had primary jurisdiction. The Italian Ministry of Justice agreed with the US and asked the court to respect US jurisdiction. The Italian court, however, rejected the assertion of official duty and the corresponding primary jurisdiction of the sending State, and proceeded to prosecute and convict Lt Col Romano for kidnapping and association in committing kidnapping, sentencing him to five years in prison: Decision of the Tribunale Ordinario di Milano, Sezione IV Penale, 4 November 2009, No 12428/09 at II–III and pt 2 at 145–6. The Italian Cour de Cassation upheld the convictions of 23 former CIA officers on 19 September 2012. See Jenks and Jensen, ‘All Human Rights are Equal, but Some are More Equal than Others: The Extraordinary Rendition of a Terror Suspect in Italy, the NATO SOFA, and Human Rights’ (2010) 1 Harv National Security J 171.
141 The use of bases in Italy for the aircraft which carried out the NATO bombardment of the Serbian TV building in Belgrade was an act performed by the Italian government ‘as an expression of its function of political direction’, not subject to judicial review, and the legality of the bombardment not being judicially determined did not fall within Art VIII(5). President of the Council of Ministers v Markovic, Italian Ct of Cassation, 5 June 2002; 128 ILR 652 criticized Frulli, (2003) J of Int Crim Justice 406.
142 In effect the 9th Circuit Court in this case adopted the US argument advanced in Littrell v USA (No 2) [1994] 4 All ER 203 at 215; unlike the position in English law, the terms of the SOFA had been given effect in US law by the International Agreement Claims Act 1954.
143 Moore v United Kingdom, US 9th Cir No 01–36146, 23 September 2004.
144 Misc No 12 (1996) Cmd 3237.
145 HC, Hansard, 2nd Standing Cttee col 3 (3 February 1998) (the Visiting Forces and International Headquarters (Application of Law) Amendment Order 1998; the Visiting Forces Designation Order (SI 1998/1268)). These Orders designate Armenia, Austria, Azerbaijan, Belarus, Finland, Georgia, Kazakhstan, Kyrgyzstan, the Former Yugoslav Republic of Macedonia, Moldova, Russia, Switzerland, Turkmenistan, Ukraine, and Uzbekistan as countries to which the Visiting Forces Act 1952 applies (1998) 69 BYIL 527–30.
146 Based in part on Denza and Fox, ‘Legal Framework for Multilateral Diplomacy’ in Satow’s Diplomatic Practice (6th edn, 2011), paras 21.38–21.39.
147 A/45/494.
148 Model UN SOFA, para 24.
149 Convention on the Privileges and Immunities of the United Nations, Arts 5 and 6.
150 Model UN SOFA, para 48.
151 Model UN SOFA, para 49.
152 Model UN SOFA, para 51.
153 It was applied in Timor-Leste for two-and-a-half years until a mission-specific SOFA was finally concluded. United Nations Peacekeeping Law Reform Project, School of Law, University of Essex, UN Peacekeeping and The Model Status of Forces Agreement, Background Paper Prepared for the Experts’ Workshop, 26 August 2010, para 84 (hereinafter UN Peacekeeping Reform Project). A mission-specific SOFA between the UN and Eritrea was never concluded for the UN Mission in Ethiopia and Eritrea (UNMEE) and the Model SOFA was the only legally binding document applicable to the mission from 2000 until 2008 (SC Res 1320 (2000), para 6 had requested a mission-specific SOFA within 30 days).
154 UN Peacekeeping Reform Project, paras 90–1 (citing ONUSAL in El Salvador, UNOMIG in Georgia, UNOA in Angola, and UNOMUR in Uganda). See also paras 93 and 32.
155 Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice’ (2008) 19 EJIL 67.
156 Based in part on Denza and Fox, Legal Framework for Multilateral Diplomacy, Ch 21; Satow’s Diplomatic Practice (6th edn, 2011), paras 21.40–21.42.
157 Agreement between the Member States of the European Union concerning the status of military and civilian staff seconded to the institutions of the European Union, of the headquarters and forces which may be made available to the European Union in the context of the preparation and execution of tasks referred to in Art 17(2) of the Treaty on European Union, including exercises, and of the military and civilian staff of the Member States put at the disposal of the European Union to act in this context (EU SOFA), Brussels, 17 November 2003, OJ [2003] C 321/6.
158 Art 19(2) EU SOFA.
159 The Visiting Forces and International Headquarters (Application of Law) (Amendment) Order 2009; the International Headquarters and Defence Organisations (Designation and Privileges) (Amendment) Order 2009; the European Union Military Staff (Immunities and Privileges) Order 2009.
160 Morever, the term ‘official duty’ is not defined in the EU SOFA and Austria, Finland, Hungary, and Sweden have all made statements restricting the right of the competent authorities of the sending State to exercise jurisdiction within the territory of the receiving State. See Sari, ‘The European Union Status of Forces Agreement (EU SOFA)’ (2009) 13 J of Conflict and Security Law 353.
161 See Aurel Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice’ (2008) 18 EJIL 67.
162 Council Doc 8720/05, Draft Model Agreement on the status of the European Union-led forces between the European Union and a host State, 18 May 2005; Council Doc 10564/05, Draft Model Agreement on the status of the European Union Civilian Crisis Management Mission in a host State (SOMA), 27 June 2005.
163 The complete exemption of civilian personnel from local jurisdiction in criminal matters and the corresponding entitlement of the sending State to exercise all criminal jurisdiction over such personnel in accordance with its own laws departs from the practice in other multilateral agreements. Normally, only military personnel are subject to the exclusive jurisdiction of their sending state in criminal matters under all circumstances: Arts 6(3) and 8, EU Model SOMA. Cf Art VI(47), UN Model SOFA. See Sari, Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice, 99.
164 For the earlier statutory scheme, see Visiting Forces (British Commonwealth) Act 1933, now repealed, which recognized in the inter-war years the disciplinary jurisdiction of military courts of visiting forces of self-governing Dominion members of the Commonwealth; the United States of America (Visiting Forces) Act 1942 (now repealed) and 8 Whiteman’s Digest 386, 388.
165 The wording of the residuary immunity is differently expressed from the clear statement of immunity subject to listed exceptions in s 1 of the SIA.
166 HL, Hansard, vol 389, col 1533 (16 March 1978).
167 Fox, ‘Access to Justice and State Immunity’ (2001) 17 LQR 10.
168 Littrell v USA (No 2) [1994] 4 All ER 203 at 209–11; [1995] 1 WLR 82; 100 ILR 4.38; casenote by Staker (1994) 65 BYIL 491; Holland v Lampen-Wolfe [1998] 1 WLR 188, CA; [2000] 1 WLR 1573; [2000] 3 All ER 833, noted in (2000) 71 BYIL 405.
169 I am indebted for this analysis to Mizushima, ‘One Immunity Has Gone: Another … Holland v Lampen Wolfe’ (2001) 64 MLR 472.
170 Holland v Lampen-Wolfe [1998] 1 WLR 188, CA; [2000] 1 WLR 1573 at 1585; [2000] 3 All ER 833 at 844; 119 ILR 367.
171 London, 19 June 1951, UKTS 3 (1951) Cmd 9363; 199 UNTS 67.
172 Littrell v USA (No 2) [1994] 4 All ER 203 at 209–11; [1995] 1 WLR 82; 100 ILR 438.
173 [2000] 3 All ER 833 at 844, per Lord Millett.
174 Trendtex Trading Corpn v Central Bank of Nigeria [1977] 1 QB 529; 64 ILR 111.
175 I Congreso del Partido [1983] 1 AC 244; [1981] 2 All ER 1062, HL; 64 ILR 307.
176 Holland v Lampen-Wolfe [1998] 1 WLR 188, CA; [2000] 1 WLR 1573, HL; 119 ILR 367.
177 Littrell v USA (No 2) [1995] WLR 82; 100 ILR 438; [1994] All ER 203 at 217.
178 The Crown Proceedings (Armed Forces) Act 1987; R v Ministry of Defence ex parte Walker [2002] 2 All ER 917; Boyd, ‘The Crown Proceedings (Armed Forces) Act 1987’ (1989) PL 237 at 247–8. Section 10 of the original 1947 Act which denied recovery in respect of a tort for personal injury to a member of the armed forces who was on duty, has been held not to be a disproportionate bar to a claimant’s right to access to a court under the Human Rights Act 1998; Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 All ER 689.
179 Jurisdictional Immunities, para 69.
180 Jurisdictional Immunities, para 69. YILC (1991) II (2), 46, para 10.
181 Jurisdictional Immunities, para 69. UN Doc A/C.6/59/SR.13, 6, para 36.
182 UK SIA, 1978, s 16(2) and the Singapore State Immunity Act 1985, s (2)(a).
183 Canada State Immunity Act 1985, s 16; Australia Foreign States Immunities Act 1985, s 6; Israel Foreign State Immunity Law 2008, s 22.
184 Jurisdictional Immunities, para 71.
185 Letelier v Republic of Chile (1980) F.Supp, vol 488, 665; 63 ILR 378 (District Court, District of Columbia).
186 Jurisdictional Immunities, para 71.
187 See FCO statement about private security companies in Iraq (2006) 77 BYIL 745.
188 M Frulli, ‘Immunity for Private Military Contractors’ in Francioni and Ronzitti (eds), War by Contract (2011), 448 (Frulli adds that the scant prosecution of contractors may not only be imputed to immunity rules, but also the lack of political will and applicable rules to exercise jurisdiction). See FCO statement about private security companies in Iraq (2006) 77 BYIL 745. See also Saleh v Titan, 11 September 2009, Court of Appeals for the District of Columbia, where in a 2:1 decision the Court dismissed claims against private contractors on the basis of conflict preemption or field preemption and the fact that claims of torture and war crimes based on the ATS could not be brought against contractors because they are not ‘state actors’.
189 Huskey and Sullivan,‘The American Way: Private Military Contractors and US Law after 9/11’, Priv-War, National Report Series, 02/08 (December 2008).
190 See United States v Slough 677 F.Supp.2d 112 (DDC 2009); United States v Paul Slough et al (DC Cir 22 April 2011).
191 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, Art 12 (establishing Iraq’s primary right to exercise jurisdiction over ‘United States contractors and United States contractor employees’). A British contractor was convicted in 2011 by the Iraqi Supreme Court and sentenced to 20 years in prison for the murder of two fellow contractors, a British and an Australian, and injuring an Iraqi security guard. REPRIEVE, ‘British ex-soldier Danny Fitzsimons sentenced to life imprisonment as Iraqi court accepts evidence of mental illness’, 28 February 2011.
192 The process was led by Switzerland and the ICRC. Permanent Representative of Switzerland to the UN, Letter dated 2 October 2008 addressed to the Secretary-General of the Security Council, UN Doc A/63/467- S/2008/636 (6 October 2008).
193 Montreux Document, 22 and 26.
194 Draft Charter for the Oversight Mechanism of the International Code of Conduct for Private Security Service Providers (January 2013).
195 See also Ch 10 on the Definition of the State.
196 Propend Finance Pty Ltd v Sing [1997] 111 ILR 611, CA, 2 May 1997, casenote by Byers (1997) 68 BYIL 312.
197 The Scheme relating to Mutual Assistance in Criminal Matters within the Commonwealth (1986), ‘the Harare Scheme’.
198 Denza, Diplomatic Law, 36.
199 Jaffe v Miller (Ontario Ct of Appeal, 17 June); [1993] 13 OR (3d) 745; 95 ILR 446, where law officers of the state of Florida, having failed to obtain an extradition order, were alleged to have arranged the kidnap of the applicant from Canada to face in Florida false criminal charges; Tritt v United States of America [1989] 68 OR (2d) 284; 94 ILR 260, where premises in the forum State were alleged to have been searched and documents seized by members of the Organized Crime Strike Force, a branch of the US Federal Department of Justice; Carrato v USA [1982] 141 DLR 3d 456; 90 ILR 229, where a receiver appointed under a court order came to Canada to seize business assets to meet outstanding income tax; Walker v Baird [1993] 15 OR (3d) 596 (Ontario Ct General Division); (1994) 16 OR (3d) 504 at 509, where the Appellate Court reversing the lower court granted immunity to bank employees because ‘they acted at the request of US government law enforcement officers for the purpose of assisting them in their investigation of possible criminal activities’.
200 The appointment of liaison officers is a useful method to promote and expedite such cooperation. In 1985 the Schengen Agreement on the gradual abolition of checks at EU Member States’ common borders was agreed; 10 States (excluding the UK and Ireland) are parties to this Agreement and the 1990 Convention applying the Schengen Agreement. The 1990 Convention contains elaborate and innovative provisions on police cooperation and on a common information system, called the Schengen Information System (SYS). On the 1990 Convention applying the Schengen Agreement see Klip, ‘Extraterritorial Investigations’ in Swart and Klip, International Criminal Law in the Netherlands (1997), 211 at 224–9.
201 Council of Europe, CAHDI SG (201) 30 June 2006.
202 Constitution of Interpol and Protocol relating to immunities; Agreement between the International Criminal Police Organization and the Government of the French Republic regarding Interpol’s Headquarters and its Privileges and Immunities in France (AGN/51/RAP/6); in force 14 February 1984 (replaced the Headquarters Agreement of 12 May 1972). Bilateral Police Cooperation Agreements.