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V. Special Subjects of Diplomatic Privileges and Immunities Pázmány Péter Catholic University Faculty of Law and Political Sciences Doctoral School of Law and Political Sciences Natália DVORNYICSENKÓ The specific aspects of immunities and privileges of diplomatic agents in international law: legal theory and practice Ph. D. thesis Supervisor: Prof. Péter KOVÁCS, DSc. “Material, prepared for scientific debate.” Manuscript completed on 1 June, 2016. Budapest 2016 To my beloved parents. 2 Acknowledgements The present dissertation is a result of my enduring interest in diplomacy – including its history, advancement and legal specifics. This interest has grown out of my professional experience in the field of diplomacy and international relations. No research achievement is independent from the research environment, mentors and advisers, of course. First of all, I would like to thank my supervisor Professor Péter Kovács for the invaluable counsel and for sharing his expertise, also support all the way, who has been guiding me for the second time already, after my Master thesis on the topic of contemporary diplomacy. My sincere gratitude also goes to Professor Vanda Lamm, whose help, suggestions and encouragement I really appreciate. I am very grateful to the Doctoral School of Law and Political Sciences for the gained knowledge, support in research and professional administration. I am thankful for the assistance of library staff and experts of the Ministry of Foreign Affairs of Hungary, the Library of the Hungarian National Assembly, the Bodleian Law Library at the University of Oxford, the Libraries of the London Metropolitan University and the Harvard Law School Library, who helped make my research on diplomacy more effective. Above all, I would like to thank my parents for their endless support throughout this project. My father, Professor Vadim Viktorovich Dvornichenko, is a constant source of inspiration and motivation, due to his scientific path and academic results. 3 Table of contents Acknowledgements .................................................................................................................... 3 Table of contents ........................................................................................................................ 4 Introduction ................................................................................................................................ 5 I. Background of the study ....................................................................................................... 11 I. 1. Statement of the problem .............................................................................................. 11 I. 2. Relevance and aims of the research .............................................................................. 14 I. 3. Summary of the thesis ................................................................................................... 15 I. 4. Methodology and sources ............................................................................................. 19 II. Theoretical basis of the subject of privileges and immunities ............................................. 23 II. 1. The conceptual clarification of the notion of the diplomatic agent ............................. 23 II. 2. The origin of the subject of privileges and immunities ............................................... 30 II. 3. The concept of diplomatic privileges and immunities ................................................. 48 II. 4. The commencement and the termination of diplomatic privileges and immunities .... 60 II. 5. The factors of reciprocity and non-discrimination ...................................................... 77 III. Sources and subjects of diplomatic law, with regard to diplomatic privileges and immunities ................................................................................................................................ 97 III. 1. International custom ................................................................................................... 97 III. 2. International conventions ......................................................................................... 104 III. 4. Judicial decisions ...................................................................................................... 117 IV. Personal inviolability of the diplomatic agent ................................................................. 127 IV. 1. Categories of diplomatic immunity .......................................................................... 127 IV. 1. 1. Immunity from civil and administrative jurisdiction ....................................... 127 IV. 1. 2. Immunity from criminal jurisdiction ................................................................ 135 IV. 1. 3. Exemption from duties ..................................................................................... 140 IV. 1. 4. Immunity in the third country .......................................................................... 145 V. Special subjects of diplomatic privileges and immunities ................................................ 148 V. 1. Abuse of diplomatic privileges and immunities ........................................................ 148 V. 2. Freedom of diplomatic communication..................................................................... 155 V. 2.1. Diplomatic communication and intelligence. ......................................................... 165 V. 3. Freedom of diplomatic movement ............................................................................ 171 V. 4. International protection of the diplomatic agent ....................................................... 173 VI. Conclusions ...................................................................................................................... 198 References .............................................................................................................................. 208 List of publications in the subject matter of the thesis ........................................................... 247 4 Introduction The main objective of modern international law is maintenance of peaceful relations between states, and despite of the fact that the prohibition of any violence is a basic rule of the settlement of international disputes, regrettably, armed conflicts still occur today. The unfolding process of globalization or as it is called in the Francophone countries – mondialization is a multi-planar and multi-stakeholder progression that rearranges the social, economic, political and cultural circumstances of our lives. Regarding the role of individuals, as a consequence of the globalization, we experience an increase in the permeability of national borders, thereby the increasing openness,1 which brings good results. In this fashion, among other factors, the intensification of mass international tourism2 impacted directly the embassies,3 by increasing and changing the nature of their work.4 At the same time, we experience some downsides of this course – the challenges to society increasingly transcend national borders,5 therefore new sources of danger, conflicts and multiple tensions arise in the world, which can lead to wars.6 Besides, we are facing the crisis of sovereignty7 and identity that affects the European Union.8 Above and beyond, „The world order changes quite quickly – like the types of iPhones.”9 This is where diplomacy10 steps in, as the international science and practice of peaceful settlement of disputes,11 regarding issues both on the earth and in the outer space12 (by means of space 1 V. V. Dvornichenko (co-author): Istoriia mezhdunarodnogo i natsional’nogo turizma. (The history of international and national tourism.) МESI. Моskva, 2001, 140-141. 2 Shaun Riordan: The New Diplomacy. Polity Press. Cambridge, 2004, 60. 3 Globalization, surprisingly, strenghtened diplomacy and weakened the diplomats. Yvan Bazouni: Le métier de diplomate. (The profession of a diplomat.) L’Harmattan. Paris, 2005, 81. 4 Mass tourism has also increased the public awareness of the world. Bazouni op.cit. 59. 5 Joel P. Trachtman: The Future of International Law. Cambridge University Pres. New York, 2013, xi. 6 Mead believes that the frame of reference within which the diplomats work, always contains war. Margaret Mead: Warfare is Only an Invention – Not a biological Necessity. Margaret Mead: Anthropology, A Human Science. D. Van Nostrand Co. Princeton, 1964, 129. 7 In opinion of Hart, „sovereign” in international law means no more, than „independent”, yet, with respect to the notion of sovereignity, the rules of international law are vague and conflicting on many points. H. L. A. Hart: The Concept of Law. Oxford University Press. Oxford, 1961, 216. 8 Jean-Claude Empereur: Á propos de la crise en Europe. États-Unis: une nouvelle vision géopolitique? (Apropos of crisis in Europe. United States: a new geopolitical vision?) Revue Politique et Parlementaire. 117e Année. No. 1077. Trimestriel Octobre-Décembre 2015, 23. 9 Yulia Latynina: Novyi mirovoi poriadok. (The new world order.) Svobodnaia Mysl’. No 2(1644). OOO „Politizdat”. Moskva, 2015, 133. 10 By the generally excepted notion, diplomacy is regulation of international relations between states by peaceful means. Gérard Cornu (ed.): Vocabulaire juridique. Quadrige/Presses Universitaires de France. Paris, 2014, 305. 11 The main object of diplomacy, by Webster is „to obtain what one wants without recourse or violence”. Charles Webster: The Art and Practice of Diplomacy. Chatto&Windus. London, 1961,
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