DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

DIPLOMATIC AGENTS, CIVIL ACTIONS

AND JURISDICTIONAL IMMUNITY
REN VRK

1. Introduction
In a normal course of life, diplomatic agents are involved in different civil
relations with natural and legal persons in the State to which they have been
accredited, for example, renting accommodation, employing private servants
and purchasing goods or services. It is a general principle that every person in
the market should be treated equally and without any discrimination.
Therefore, it is logical and reasonable to assume that a diplomatic agent
should have the same rights and duties as well as bear the same liability as
every other person in similar relations. However, the matter is more
complicated as diplomatic agents are given a special status according to international law. The receiving State is under a legal obligation to respect, assist
and protect him and not to interfere with his official functions. A diplomatic
agent is granted different inviolabilities and privileges as well as immunity
from the jurisdiction of the receiving State in order to enable him to exercise
his official functions independently and effectively and to avoid any interferences on the part of the receiving State. Jurisdictional immunity encompasses actually three different immunities, namely immunity from criminal,

Ren Vrk is Lecturer of Public International Law and Director for Academic Affairs at
the Institute of Law, University of Tartu; Visiting Lecturer of Diplomatic and Consular
Law at the Estonian School of Diplomacy; Tutor at the Diplomatic Council in Oxford,
United Kingdom. He is a graduate of the Institute of Law (2000, LL.B., magna cum laude)
and Stockholm University (2001, LL.M.). Currently, he is a doctoral student at the
Faculty of Law, University of Tartu. He is a member of the Martens Society and
American Society of International Law. His main field of research is diplomatic and
consular law, use of force and international humanitarian law.

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civil as well as administrative jurisdiction, and it is accompanied by the

prohibition to take measures of execution. Because immunity from criminal
jurisdiction is often believed to have exceedingly unjust effect on those
affected by the criminal behaviour of a diplomatic agent, the former tends to
receive disproportionately much scholarly attention and leaves other
immunities in shadow. However, if one takes a look at practical life, it becomes clear that it is not immunity from criminal, but from civil jurisdiction
that causes more legal problems for States. One obvious reason is the fact that
while immunity from criminal jurisdiction is absolute and unqualified,
immunity from civil jurisdiction has certain exceptions, which render this
immunity somewhat unclear and subject to considerable interpretations. This
article analyzes immunity from civil jurisdiction and prohibition to take
measures of execution as well as determine their limits under the regulation of
1
the Vienna Convention on Diplomatic Relations.

2. Concept of Diplomatic Immunity

There are both political and legal aspects in every civil disagreement with a
diplomatic agent. The receiving State probably has to make certain compromises not only between its external and internal interest, but also between the
state and private interest, for example, demand for the waiver of immunity
may be internally popular decision, but may potentially harm external relations with the sending State. Although political reasoning behind particular
decisions may be complex, diplomatic law is relatively simple in its legal
structure in so far as most diplomatic law depends directly on executive action.
The situation is more elaborate in the case of jurisdictional immunity because
it involves such issues as the relationship between the executive and judicial
power, the interpretation by the courts of the obligations incurred internationally by the government and, to some extent, the interaction between the
legal systems of the receiving and sending State.
Jurisdictional immunity is a principle of public international law according
to which certain foreign government officials, including diplomatic agents, are
not subject to the jurisdiction of local courts and other authorities of the
receiving State for both their official and, to a large extent, their personal
1

Vienna Convention on Diplomatic Relations, Vienna, 14 April 1961, in force 24 April

1964, 500 United Nations Treaty Series 95 [hereinafter the Vienna Convention].

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DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

2

activities. However, the need for diplomatic immunity, that is, jurisdictional
immunity especially meant for diplomatic agents, is neither self-evident nor
unchallenged. There have always been those who completely oppose such
immunity, but then again there have equally been those who unquestionably
believe in the need of diplomatic immunity without admitting any exceptions.
The reasonable path lies somewhere between the described extreme positions.
As to the justification of diplomatic immunity, three theories have been
3
developed since the seventeenth century. The first two theories, namely the
theory of extraterritoriality and of representative character, are nowadays
disregarded due to their fictitious and figurative nature and non-compatibility
with reality. The International Law Commission (ILC) also rejected these
theories (although it did not deny the representative character of the head of
the mission and of the mission itself) and turned to the theory of functional
4
necessity, which provides a conceptual basis for the Vienna Convention.
According to the third theory, the justification for granting immunity to diplomatic agents is based on the need to enable normal functioning of diplomatic
agents as well as the diplomatic mission. The same position can be found in
the preamble of the Vienna Convention, where it is declared that the purpose
of such privileges and immunities is not to benefit individuals but to ensure
the efficient performance of the functions of diplomatic missions when
5
representing States. This creates a link between granting immunities and
performing diplomatic functions and furthermore serves as a criterion for
assessing whether immunities are appropriate and necessary when such a link
is missing.
The immunity conferred to diplomatic agents is primarily procedural in
character and does not affect any underlying substantive liability. The judge
said in the English landmark case of Empson v. Smith that it is elementary law
that diplomatic immunity is not immunity from legal liability, but immunity
6
from suit. Subject to exceptions resulting from the performance of
2
3

Ren Vrk, Diplomaatiline igus [Diplomatic Law] (Juura: Tallinn, 2004) at 141.
See Grant V. McGlanahan, Diplomatic Immunity: Principles, Practices, Problems (St. Matins
Press: New York, 1989) at 2734 for a detailed discussion of different theories.
Sir Arthur Watts, The International Law Commission 19491998 (3 vols, Oxford University
Press: Oxford, 1999), vol. I, at 181.
Actually, the ILC did not want to attach too much importance to the justification of
diplomatic immunities. As long as the limits of immunity are clearly enough defined,
there is probably no need for the concrete reference to its conceptual basis.
Empson v. Smith (English Court of Appeal), 1 QB 426 (1966) at 438.

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diplomatic functions according to the orders of his government, diplomatic

agents are under a general obligation to respect the laws and regulations of
7
the receiving State. In other words, diplomatic agents are not above the law
and if they breach local law, they are also liable for such breach, although
they are not liable to be sued in the [courts of the receiving State] unless they
8
submit to the jurisdiction. To regard diplomatic agents also exempt from
liability would produce absurd and unjust results. For example, a diplomatic
agent who has just paid his debt could sue for recovery of the money on the
basis that he had paid the money in the absence of any obligation and the
other person had received unjust enrichment.
Whenever immunity is established and accepted by the court, the latter
must discontinue all proceedings against the defendant concerned. The court
has to determine the issue of immunity on the facts on the date when this
issue comes before it and not on the facts at the time when an event gave rise
to the claim of immunity or at the time when proceedings were begun. This
means that a diplomatic agent can raise immunity as a bar to both
proceedings relating to prior events (that occurred before he became a
diplomatic agent entitled to immunity) and proceedings already instituted
against him. Although all proceedings against the diplomat agent must be
suspended during the period of entitlement to diplomatic immunity, it does
not mean that these proceedings are null and void because of immunity. The
Court made it clear in the case of Empson v. Smith that on the termination of
diplomatic status, for whatever reason, any subsisting action that had to be
9
stopped on the grounds of the defendants immunity could be revived. This
can be done even though he was entitled to immunity when the events
concerned took place or when the process was originally begun. Nevertheless,
immunity of diplomatic agents remains indefinite in respect of the acts
performed in the course of their duties, as they cannot be held personally
liable for the orders given by their governments or for carrying out such
orders. Indeed, personal liability for official acts would make the performance
of diplomatic function unreasonably risky for diplomatic agents.

8
9

Article 41(1) [hereinafter all references to articles are to those of the Vienna
Convention].
Dickinson v. Del Solar (English Court of Appeal), 1 KB 376 (1930) at 380.
Empson v. Smith, supra note 6, at 438439.

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DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

3. Scope and Limits of Immunity from Civil

Jurisdiction
Immunity from civil jurisdiction developed slower and later than immunity
from criminal jurisdiction, but the concept was established in state practice by
10
the eighteenth century. Such immunity was demanded by the fact that the
receiving State could not control whether a civil action is brought against a
diplomatic agent or not. Whereas the initiation of penal proceedings depends
on the decision of public authority, civil actions can be brought before a court
by ordinary people. Therefore, immunity from civil jurisdiction was partly
designed to prevent injury to the external relations of the receiving State,
caused by private suits. Although most authors were of the opinion that
immunity from civil jurisdiction should be restricted, court practice followed
primarily the line of absolute immunity, especially in cases relating to
11
professional or commercial activity. It was not until the Vienna Convention
that immunity from civil jurisdiction was clearly restricted through introduc12
tion of three specific exceptions. Article 31(1) provides that a diplomatic
agent shall enjoy immunity from civil jurisdiction of the receiving State, except
13
in the case of:
(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;

10

11

12

13

Michael Hardy, Modern Diplomatic Law (Manchester University Press: Manchester,

1968) at 58.
Geraldo Eullio do Nascimento e Silva, Diplomacy in International Law (A. W. Sijthoff:
Leiden, 1972) at 115.
See Ernest L. Kerley, Some Aspects of the Vienna Conference on Diplomatic Intercourse and Immunities, 56 American Journal of International Law (1962) 101129, at 119
120 for a discussion of whether the exceptions proposed by the ILC and afterwards
adopted by the Vienna Conference represented established customary international law
or progressive development of diplomatic law.
According to Article 37(1), the members of the family of a diplomatic agent forming
part of his household, if they are not nationals of the receiving State, enjoy immunity
from civil jurisdiction on the same bases. If the diplomatic agent is a national or
permanent resident of the receiving State, Article 38(1) grants him immunity only in
respect of official acts performed in the exercise of his functions.

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REN VRK

(b) an action relating to succession in which the diplomatic agent is

involved as an 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.
These exceptions do not, indeed, reflect established customary international
law, but they are necessary or reasonable, at least, for three reasons. Firstly, if
the receiving State did not have jurisdiction over such cases, the latter would
probably remain unexamined as it would be virtually impossible for any court
elsewhere to examine the cases. Secondly, such cases are not connected with
the official duties of a diplomatic agent, but are purely private in nature.
Thirdly, such cases do not usually involve the possibility of criminal proceedings or imprisonment, which can hinder the performance of official duties. At
the early stage of drafting the Vienna Convention, the United States even
suggested the deletion of the second as well as the third exception to
immunity from civil jurisdiction, but no other State joined the United States
in disputing the desirability of these exceptions (the United States abandoned
14
its demand later).
The occasions for taking recourse to civil action against a diplomatic agent
may also arise in a number of circumstances for which these exception do not
apply, for example, non-payment of debts or tradesmans bill for articles
supplied for his personal consumption, non-payment of rent or violation of
conditions of a lease, recovery of hire charges or repair bills and compensation
for loss or injury caused to a person or property due to motor car accidents or
15
other forms of default. Judicial measures are unavailable in such cases and
the injured party has to avail itself to non-judicial procedures such as
approach to the Ministry for Foreign Affairs with a request to act as a
mediator in the dispute. The ministry can approach the head of the respective
mission and ask him to facilitate the settlement of that dispute. As most
diplomatic agents are willing to preserve good reputation both in the receiving
and sending State, they will usually reach a settlement with the other party.
14

15

Kerley, Some Aspects of the Vienna Conference on Diplomatic Intercourse and

Immunities, supra note 12, at 120.
Biswanath Sen, A Diplomats Handbook of International Law and Practice (3rd rev. edn,
Martinus Nijhoff Publishers: Dordrecht, 1988) at 144.

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DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

However, if the diplomatic agent is persistently refusing to reach a compromise, the ministry can take more serious steps and can ask either the
diplomatic agent to be recalled or his immunity to be waived.
There is also an indirect exception to immunity from civil jurisdiction of
the receiving State. If a diplomatic agent initiates proceedings in a court of the
receiving State, that is, invokes himself the jurisdiction of the latter, he
precludes himself from the possibility to invoke immunity in respect of any
16
counter-claim directly connected with the principal claim. It is assumed that
if a diplomatic agent initiates proceedings, he submits himself to the
jurisdiction of the receiving State in a manner that is necessary for full and
complete examination of the particular case. The diplomatic agent has to take
into account that the defendant must also have the same rights in defending
his interest and such defence may include the submission of a counter-claim.
The latter must be directly, not simply indirectly connected with the principal
claim. For example, an English court held that when the diplomatic agent
claimed for money or damages from the defendant, he did not submit himself
to a counter-claim for defamation (especially because the latter was a criminal
17
offence). A counter-claim is admissible only if the diplomatic agent was the
initiator of proceedings; he being, for example, merely a witness or expert is
18
not enough.

3.1. Exception for Private Immovable Property

Such exception has been accepted for a long time by most writers and
correspondingly followed by many States (but, for example, the United
Kingdom or France never applied the exception). It is also in correspondence
with the universal claim that every State should have exclusive jurisdiction
19
over immovable property, which is the very substratum of national territory.
This exception is not, however, without certain ambiguities, which even on
the study of travaux prparatoires and other sources remain difficult to resolve.
Firstly, the Vienna Convention does not explain the meaning of real action.
16
17
18

19

Article 32(3).
High Commissioner for India v. Ghosh (English Court of Appeal), 1 QB 134 (1960).
See for example Propend Finance Property Ltd. v. Sing and the Commissioner of the Australian
Federal Police (English High Court), Times Law Reports, 2 May 1997.
Yearbook of the International Law Commission (2 vols, United Nations: New York, 1957),
vol. II, at 139.

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However, it is crucially important to establish the meaning in order to prevent

the abusive use of the respective exception against diplomatic agents. At this
point, the meaning emerges actually from the examination of national
legislation and cases. These sources show that, in principle, the real action is
equivalent to action in rem (different from actions in personam), where a
declaration of title to the property, an order for sale by authority of the court
20
or an order for possession is sought. An Italian court has held that a real
action should be taken to mean, in accordance with the terminology of
21
Roman law, a claim for the protection of a right of property or usufruct.
22
In the Deputy Registrar Case, a Dutch court was asked to give an eviction
order for the purpose of regaining full control over a property that had been
23
let to the deputy registrar of the International Court of Justice. The court
analyzed Article 31(1)(a), which it believed to reflect customary international
law, and found that an eviction order fell in its scope. However, the question
whether a court has jurisdiction to hear an application for eviction seems to
depend on the traditions and understandings of a particular national legal
system. For example, two Italian courts have ruled that they do not have
jurisdiction to consider an application for eviction under Italian law, as an
24
action seeking vacation is a personal, not real action. Even if a court has
jurisdiction to give a judgment demanding vacation of an immovable property,
it does not mean that such judgment can be automatically executed the
diplomatic agent can raise the inviolability of his person or residence as a bar
to execution. This matter shall be discussed further below.
The exception in question does not include actions for recovery of rent or
performance of other obligations deriving from ownership or possession of
20

21

22

23

24

Eileen Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic

Relations (2nd edn, Oxford University Press: Oxford, 2004) at 238. See also Largueche v.
Tancredi (Italian Court of Cassation), 101 International Law Reports (1995) 377; Intpro
Properties Ltd. v. Sauvel and Others (English Court of Appeal), QB 1019 (1983), 2 All ER
495 (1983), 2 WLR 908 (1983).
Aziz v. Carruzi (Examining Magistrate of Rome), 101 International Law Reports (1995)
358.
Deputy Registrar Case (District Court of the Netherlands), 94 International Law Reports
(1994) 308.
Although the deputy registrar is not a diplomatic agent, the person holding that
position is granted full diplomatic immunity according to the head-quarters agreement
between The Netherlands and the International Court of Justice; thus the Vienna
Convention applies.
Largueche v. Tancredi, supra note 20; Aziz v. Carruzi, supra note 21.

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DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

immovable property. For example, the Belgian case of Hildebrand v. Champagne

25
concerned claims for rental charges and other costs under a lease agreement.
The lower courts had assumed jurisdiction on the basis that diplomatic
immunity applied only in case of acts performed in the exercise of diplomatic
functions and renting an apartment does not fall within that category. The
court of cassation found, however, that claims for rental charges and other
costs did not concern real actions and therefore the previous judgments were
in breach of Article 31(1).
The first exception to the immunity from civil jurisdiction does not extend
to private immovable in the territory of the receiving State, which the
diplomatic agent holds on behalf of the sending State for the purposes of the
mission. Such a reservation was deemed necessary at the Vienna Conference
due to the fact that the law of certain States does not permit ownership of land
by foreign States. If the sending State still wanted to purchase premises for its
diplomatic mission, it had to find a way around the mentioned restriction. As
a solution, the sending State could put the desired premises under the name
of its head of the diplomatic mission or another diplomatic agent. Professor
Tunkin mentioned as an example the case of property for the use of the Soviet
Mission to the United Nations in New York, which had to be bought in the
26
name of the head of the delegation. In such a case the respective real estate
cannot be properly considered as a private real estate of the concerned
diplomatic agent. The latter should not bear liability or be subjected to any
executive or judicial coercive measures in connection with the property that
he is holding on behalf of his sending State simply because of pragmatic
necessity, caused due to political or legal reasons. Furthermore, the continuing existence of civil immunity is very much justified in respect of property
that is actually used for the purposes of the mission because otherwise it
would be possible to bring proceeding against the premises of a diplomatic
mission, which enjoys immunity from search, requisition, attachment or
27
execution.
There is one important question for which neither the Vienna Convention
nor customary international law provides clear answer. Is the principal private
residence of a diplomatic agent also within the discussed exception? The
25

26
27

Hildebrand v. Champagne (Belgian Court of Cassation), 82 International Law Reports (1990)

121.
Silva, Diplomacy in International Law, supra note 11, at 117118.
Article 22(3).

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possible answer depends very much on the choice of arguments. On the one
hand, if one wants to ensure that a diplomatic agent is completely independent from the receiving State and therefore able to exercise his official functions
effectively, one will most certainly reach the conclusion that his principal
private residence should enjoy absolute immunity. On the other hand, if one
follows more pragmatic line of reasoning, one may conclude that the principal
private residence must be subject to the jurisdiction of the receiving State
because there is no feasible and reasonable alternative to lex rei sitae. The court
practice predating the Vienna Convention favours actually the second
approach as courts did not draw a clear distinction between a principal private
28
residence and other kinds of private immovable property. For example, a
Polish court stated very clearly in 1925 that municipal courts have jurisdiction in regard to the private immovable property of a public minister, except in
regard to such immovable property as is devoted to the official use of the
29
embassy or legation.
The post-Vienna Convention court practice supports equally the position
that the principal private residence is not immune from the civil jurisdiction of
the receiving State. As long as such a residence is protected from any
measures of execution in accordance with Article 31(3), it is most likely
correct and better to assert that the local courts are entitled to exercise their
jurisdiction over principal private residences, which are actually situated in the
territory of the receiving State. Furthermore, such exercise of jurisdiction does
not necessarily disturb or hinder the performance of official functions by the
diplomatic agents. For example, in the Jurisdiction over Yugoslav Military Mission
30
(Germany) case, where the plaintiff demanded, inter alia, a correction of the
entry in the Land Register to the effect that the plaintiff was the actual owner,
the court found that an action for correction of the Land Register does not
hamper the performance of diplomatic functions. The District Court of the
31
Netherlands favoured also this position in the Deputy Registrar case, where
the court found that the deputy registrar could not claim for immunity even
28
29

30

31

Denza, Diplomatic Law, supra note 20, at 241.

Montwid-Biallozor v. Ivaldi (Supreme Court of Poland), 3 Annual Digest of Public
International Law Cases 19251926, Cases Nos 345, 246.
Jurisdiction over Yugoslav Military Mission (Germany) (German Federal Constitutional
Court), 38 International Law Reports (1969) 162; 65 International Law Reports (1984) 108.
This case concerned actually a Yugoslav diplomatic mission, but the findings can be,
nevertheless, equally applicable to a principal private residence of a diplomatic agent.
See supra note 22.

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DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

although the property was used as his residence. In the courts opinion, the
only function which the dwelling serves with regard to his work at the Registry
of the International Court of Justice is to provide him and his wife with
somewhere to live which is relatively close to his work; this is not altered by
the fact that the International Court of Justice regards this as useful, or by the
fact that [Deputy Registrars] aforesaid library is housed in the building. An
English court took a view that the fact that some premises were used as a
principal private residence and for carrying out certain social obligations
associated with the diplomatic position was not sufficient to proclaim that the
32
premises were used for the purposes of a diplomatic mission.
Court practice and the majority of municipal law as well as the rational of
the exception from civil immunity in the case of a real action relating to
private immovable property indicate that the phrase unless he holds it on
behalf of the sending State for the purposes of the mission should be
narrowly construed and that it should be possible to bring an action to
determine the legal questions relating to the premises in which a diplomatic
agent is living.

3.2. Exception for Private Involvement in Succession

A diplomatic agent, especially when performing consular functions, becomes
involved in matters of succession in an official capacity, for example, distributing the assets of a deceased national of his sending State to appropriate
heirs or claiming on behalf of his government the estate itself as bona vacantia
if there are no heirs either by will or intestacy. In such cases, the diplomatic
agent is performing his official functions and therefore he enjoys also his
ordinary immunity from civil jurisdiction of the receiving State. The second
exception to immunity from civil jurisdiction concerns cases, where the
diplomatic agent is involved in succession matter as a simple private person
and his involvement does not form part of his official functions and the
interest of the receiving state in asserting jurisdiction over all persons
33
concerned with a succession is accepted as paramount. Such exception
represents, to a certain extent, progressive development of diplomatic law, as it

32
33

Intpro Properties Ltd. v. Sauvel and Others, supra note 20.

Lord Gore-Booth (ed.) and Desmond Pakenham (ass. ed.), Satows Guide to Diplomatic
Practice (5th edn, Longman: London, 1979) at 126.

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34

was not clearly established in earlier customary international law. On the

contrary, there is court practice guaranteeing diplomatic agents immunity
35
from all sort of involvement in succession.
36
This exception is undoubtedly the clearest and least problematic of three
exceptions to immunity from civil jurisdiction. Actions concerning succession
are often very complex and involve the collaboration of a large number of
parties. They form a standard example of the type of cases for which non-local
courts can scarcely ever provide a reasonable, effective and practical solution.
For example, it is difficult to imagine how the courts of the sending State can
entertain a succession action, which involves people who live abroad and
property that is situated in another State. Furthermore, it should not be
unreasonably difficult for other persons involved in a succession to protect
their rights. If such persons must travel to another State in order to receive
judicial protection, it can be most certainly said that they have unreasonable
burden while the concerned diplomatic agent has an unjust advantage.
Therefore it is quite normal and reasonable that a diplomatic agent does not
enjoy immunity from civil jurisdiction in case of a private succession. The
absence of such exception may otherwise result in injustice. Besides, it is
unlikely that his involvement in a succession action will affect his independent
and effective performance of diplomatic functions.

3.3. Exception for Private Professional or Commercial Activity

Diplomatic agents have an obligation not to practice for personal profit any
37
professional or commercial activity in the receiving State. The aim of such a
prohibition is to ensure that the diplomatic agent would limit his activities to
his official duties and avoid the impression that he is using his position to
38
further his private interests. It is not usual that diplomatic agents have a
34
35

36

37
38

Sen, A Diplomats Handbook of International Law and Practice, supra note 15, at 142.
See for example Deposit (Land in Czechoslovakia) Case (Supreme Court of Czechoslovakia),
9 Annual Digest of Public International Law Cases (19381940), Case No. 167.
Some authors have even expressed the view that this exception is not known to have
given rise to any problems. Jonathan Brown, Diplomatic Immunity: State Practice
under the Vienna Convention on Diplomatic Relations, 37 International and Comparative
Law Quarterly (1988) 5388, at 76.
Article 42.
Charles J. Lewis, State and Diplomatic Immunity (3rd edn, Lloyds of London Press:
London, 1990) at 131.

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DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

second job, because there is simply no time for it and the receiving State is not
interested that diplomatic agents engage themselves in activities other than
diplomatic. Therefore receiving States have made it very difficult, if not
impossible, for a diplomatic agent to work privately. Some States, for example,
the United Kingdom, will not normally accept as a diplomatic agent a person
who is engaged in business and intends to continue with his business in these
States. Such a person may still be accepted in very exceptional cases if he is
39
unusually well qualified for the relevant diplomatic post. The receiving State
may, at its sole discretion, set aside the prohibition of non-diplomatic
40
activities.
Although there is a clear prohibition to practice any professional or
commercial activity, it still sometimes happens that diplomatic agents ignore
this prohibition. For this reason, it was felt necessary to have a specific rule
denying the disobedient diplomatic agents immunity from civil jurisdiction in
case of an action relating to any professional or commercial activity exercised
41
outside official functions. This exception is equally necessary in cases where
the receiving State has decided to overlook in respect of a particular
diplomatic agent the prohibition set out in Article 42. The third exception is
intended to guarantee that the persons with whom the diplomatic agent has
had commercial or professional relations [is not] deprived of their ordinary
42
remedies. Indeed, if a diplomatic agent has still decided, whether in breach
of Article 42 or with a specific permission of the receiving State, to enter into
the market, he should have the same rights and duties as any other person
there. The receiving State can, of course, declare a particular diplomatic agent
persona non grata and demand his departure, but this political weapon does
not give much comfort to those who have suffered because of the acts of that
diplomatic agent.
The third exception contains two phrases, namely any professional or
commercial activity and outside his official functions, which demand some
39
40
41

42

Gore-Booth and Pakenham, Satows Guide to Diplomatic Practice, supra note 33, at 126.
Hardy, Modern Diplomatic Law, supra note 10, at 62.
Some States still doubted whether it was necessary to have such exception. For
example, Columbia proposed at the Vienna Conference to delete that exception in
favour of inserting a general prohibition of any professional or commercial activity (this
prohibition became the discussed Article 42 of the Vienna Convention). UN Doc.
A/CONF. 20/C.1/L. 173 (1961): UN Doc. A/CONF. 20/C.1/L. 174 (1961).
International Law Commission, Report Covering Its 10th Session, 1958, UN Doc.
A/3859 (1958) at 20.

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explanation. The first phrase does not refer to every single professional or
43
commercial act, but to a continuous activity. Therefore the contracts, which
are necessary in the course of ordinary life, for example, purchasing goods,
ordering services, hiring private servants or renting accommodation, does not
qualify as commercial activity in the sense of Article 31(1)(c); the latter focuses
44
on the pursuit of trade or business activity. Indeed, if a diplomatic agent
would be subject to civil jurisdiction of the receiving State in every incidental
contract to daily life, his independence could be potentially jeopardised. But if
the diplomatic agent takes up a paid employment outside the diplomatic
mission or offers professional services for remuneration, he engages himself in
acts that can no longer be considered as incidental to the daily life and
therefore he is no longer entitled to civil immunity. Although investment is
normally commercial activity, it may still be difficult to decide whether all
personal assets invested in the receiving State necessarily fall under the third
exception to civil immunity. When a diplomatic agent, for example, invests in
shares or businesses in the receiving State, he undoubtedly engages in
commercial activity and is subject to local civil jurisdiction. As a result, the
receiving State can sue the diplomatic agent in connection with his investment
activity, for example, for the recovery of income tax on profit acquired
through personal investments. However, an Australian court has found that
neither the purchase of a house as an investment nor the collection of rent
45
from tenants thereafter amounts to commercial activity. The courts finding
was, most likely, a result of misinterpretation of the Vienna Convention
because the renting of accommodation for making profit is most certainly
commercial activity. While a single personal loan can be considered as
non-commercial act in the meaning of Article 31(1)(c), then direct or indirect
investment is a long-term activity carried out for profit. Local courts would be
particularly interested that immunity from civil jurisdiction does not become
an obstacle to bankruptcy or winding-up proceedings, which involve the
46
interests of a number of people.

43

44

45

46

This was stressed also during the drafting process of the Vienna Convention. UN Doc.
A/CN.4/116, at 56.
This position was also upheld the case of Tabion v. Mufti (United States Court of
Appeals), 73 F 3d 535 (1996).
Diplomatic Immunity Case (Family Court of Australian), unreported; see Jonathan Brown,
supra note 36, at 76.
Denza, Diplomatic Law, supra note 20, at 251.

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DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

The second phrase, outside his official functions, becomes relevant

actually in two cases. Firstly, if a diplomatic agent is carrying out activities,
which could be, prima facie, seen as professional or commercial activity, it is
necessary to consider whether such activities are actually connected with his
official functions. It is indeed possible that acts, which are professional or
commercial in nature, are part of official functions. A Belgian court held that
the request of translation by a Portuguese diplomatic agent was neither his
professional nor commercial activity as the translation was necessary for
47
performance of official functions. The court did not agree with the
interpretation that the request of translation falls inevitably outside official
function in the sense of Article 3. The latter merely outlines general
diplomatic functions and it must be interpreted so that it also covers
incidental activities, which are necessary for the performance of those general
functions. Sometimes it may indeed be necessary to determine the scope of
diplomatic functions. But whenever a diplomatic agent is instructed by his
sending State to undertake activities, which could be considered professional
or commercial in nature, he should be seen as carrying out his official
functions and such activities should not expose the diplomatic agent to the
risk of personal civil suit according to Article 31(1)(c). Secondly, after the
diplomatic agent leaves his post, he can be sued for all his actions except for
those performed in the exercise of his official functions.

4. Prohibition to Take Measures of Execution

Immunity from the jurisdiction of the receiving State is accompanied by the
prohibition to take any measures of execution, except in the cases represent48
ing discussed exceptions from civil jurisdiction. The latter are coercive
measures enforcing a judicial decision. Immunity from execution is a long
established rule, which derives originally from personal inviolability of a
diplomatic agent. This means that a diplomatic agent has two-step protection,
first from judicial procedure and then from measures of execution. For
example, if the sending State decides to waive the immunity of a particular
diplomatic agent, so that a civil action could be settled in local courts, it does
not automatically mean that the sending State is equally prepared to allow the
47
48

Portugal v. Goncalves (Civil Court of Brussels), 82 International Law Reports (1990) 115.
Article 31(3).

39

REN VRK

execution of the given judgment. A separate waiver is necessary before the

49
measures of execution could be taken in respect of that judgment. In
addition, if a court has given a judgement without, at that time, knowing that
the defendant enjoys immunity from civil jurisdiction, the diplomatic agent
can raise his immunity to bar any form of enforcement of the judgement
against him.
If an action was brought against a diplomatic agent under three exceptions
to civil immunity and judgment was obtained against him, the judgment could
be enforced as long as the enforcement does not infringe the inviolability of
his person or of his residence. This means that, for example, his shares can be
50
seized, but his house could not be entered. This restriction can become a
serious bar to effective settlement of a dispute between an ordinary person
and a diplomatic agent. Supposing there is a dispute as to title, a diplomatic
agent will not be able to dispute jurisdiction so as to prevent the court from
giving judgment, although the possibility will be open to him, at least in
51
theory, to deny possession to the legal owner. From the latters perspective,
the knowledge that he is indeed the legal owner of a particular property may
not be much of value, if he cannot actually take possession of and use that
property. However, it is unlikely that a diplomatic agent will not comply with
such a judgment because any such behaviour would constitute a breach of the
52
obligation to respect the laws and regulations of the receiving State and
could lead to a declaration that a particular diplomatic agent is persona non
grata.

5. Continuing Civil Jurisdiction of the Sending State

The fact that a diplomatic agent is immune from civil jurisdiction of the
receiving State does not exempt him from civil jurisdiction of the sending
53
State. This means basically that a person whose legal rights or interest have
been breached by a diplomatic agent can sue the latter in his sending State. In
practice, unfortunately, civil jurisdiction of the sending State is not especially
49
50
51
52
53

Article 31(4).
Gore-Booth and Pakenham, Satows Guide to Diplomatic Practice, supra note 33, at 127.
Hardy, Modern Diplomatic Law, supra note 10, at 61.
Article 41(1).
Article 31(4).

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DIPLOMATIC AGENTS, CIVIL ACTIONS AND JURISDICTIONAL IMMUNITY

effective due to practical difficulties, but there can also be direct or indirect
opposition from the sending State. During the drafting process, there was an
attempt to make the jurisdiction of the sending State compulsory so that
when an action cannot be brought against a diplomatic agent in the receiving
State, the courts of the sending States are obliged to entertain the action.
States were not prepared to assume an obligation of providing a competent
forum in every case where someone wished to sue one of their diplomatic
54
agents.
But even if the courts of the sending State have jurisdiction and initiate
proceedings against a diplomatic agent, there would be a number of practical
difficulties in connection with such a case. Firstly, because the diplomatic
agent has personal inviolability, the authorities of the receiving State cannot
serve him legal process unless it is done by a representative of the sending
State. Secondly, the diplomatic agent cannot, for the same reason, be
extradited so as to be physically present to stand trial in the sending State if
the latter is not prepared to give permission for that. If the sending State
waives immunity and allows (or more likely compels) the diplomatic agent to
travel home in order to stand trial, it has to find someone to replace the
leaving diplomatic agent and cover the cost regarding such irregular and
unexpected accreditation. Thirdly, the courts of the sending State cannot
compel the witnesses in the receiving State to travel to the sending State in
order to give testimonies. Fourthly, the initiation of proceedings in the
sending States (that is, in a foreign State from the perspective of the plaintiff)
involves heavy expenses for local legal aid, possible translation, travelling (not
only for himself, but also for experts and witnesses), etc. All this demonstrates
that the courts of the sending State are not indeed the best or effective forums
to settle the disputes, which have arisen in the receiving State.

6. Conclusion
Immunity from civil jurisdiction of the receiving State is undoubtedly
necessary in order to ensure that a diplomatic agent is completely independent
from the receiving State and able to exercise his official functions effectively,
but such immunity cannot become impunity or cause harm to those who
enter into some form of civil relations with a diplomatic agent. Although the
54

Denza, Diplomatic Law, supra note 20, at 265.

41

REN VRK

overwhelming majority of diplomatic agents are law-abiding and never make

any use of immunity from civil jurisdiction, there are those diplomatic agents
who abuse their privileged status. As the most likely victims of such abuses
are private persons, they are in a disadvantaged position compared to that of a
diplomatic agent. Local courts cannot provide judicial protection in all cases
and in spite of the possibility to bring civil proceedings against a diplomatic
agent in his sending State, it is unreasonably difficult to obtain a judgment
from the latter courts. For this reason, the receiving State should intervene
(taking into account possible political consequences) whenever it becomes
apparent that a diplomatic agent is using his immunity to further private
rather than official interests, especially when it is done at the expense of other
people. The receiving state does not have to tolerate a diplomatic agent who
breaches his obligations under the Vienna Convention and behaves defiantly
towards the rights and interest of local people. It can always request the
55
sending State to waive the immunity of a particular diplomatic agent. If the
concerned activity is clearly professional or commercial and outside official
functions, it is not rare that the sending States waive the immunity in
connection with a relevant action. A private person has probably only one
measure at his disposal. He can demand that a civil contract between him and
a diplomatic agent contains a clause by which the sending States agrees to
56
waive the immunity if a dispute will arise from that contract. For example, a
private person can refuse to rent accommodation to a diplomatic agent
without such a clause in fear that otherwise he will not be able to recover
unpaid rent. But if the sending State refuses to co-operate, the receiving State
can, at any time and without having to explain its decision, declare the
concerned diplomatic agent persona non grata and demand his departure within
a given period of time.

55
56

See Article 32 for more information.

As it is accepted in the field of sovereign immunity that a State may agree in advance to
submit a certain category of dispute to the courts of another State (such agreement
constitutes basically waiver of immunity), there seems to be no reason why the State,
which has the sovereign power to waive diplomatic immunity, could not do so in
advance. But as diplomatic immunity can be waived only by the sending State, the civil
contract between a private person and diplomatic agent containing immunity waiving
clause must be therefore confirmed by the sending State.

42