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A Comparative Study of the Privileges and Immunities of United Washington and Lee Law Review Volume 33 | Issue 1 Article 4 Winter 1-1-1976 A Comparative Study Of The rP ivileges And Immunities Of United Nations Member Representatives And Officials With The rT aditional Privileges And Immunities Of Diplomatic Agents Yu-Long Ling Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the International Law Commons Recommended Citation Yu-Long Ling, A Comparative Study Of The Privileges And Immunities Of United Nations Member Representatives And Officials With The Traditional Privileges And Immunities Of Diplomatic Agents, 33 Wash. & Lee L. Rev. 91 (1976), https://scholarlycommons.law.wlu.edu/wlulr/vol33/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. A COMPARATIVE STUDY OF THE PRIVILEGES AND IMMUNITIES OF UNITED NATIONS MEMBER REPRESENTATIVES AND OFFICIALS WITH THE TRADITIONAL PRIVILEGES AND IMMUNITIES OF DIPLOMATIC AGENTS Yu-LONG LING* I. INTRODUCTION Modern states possess wide jurisdictional authority over their na- tional domain.' This authority normally extends to persons, both nationals and aliens, residing within a country and to property lo- cated therein. That a nation rules over all persons and things within its territory constitutes one of the basic principles of international law.2 For a variety of reasons, however, states have accepted limita- tions upon their jurisdiction. One of these limitations is the special legal status of diplomatic representatives.' Under customary interna- tional law, diplomatic envoys are granted certain privileges and im- munities from the normal legal processes of the state to which they are accredited. The concept of diplomatic immunity constitutes one of the oldest parts of international law, originating even before the rise of the modern state.' Since the end of World War I, a new type of international entity has appeared in the form of the international organization. In order to function effectively, these organizations must enjoy a large degree *Director of International Studies, Franklin College, Franklin, Indiana. A.B., LL.B. (1963), Soochow University, Taipei, Formosa; LL.M. (1967), M.A. (1968), Ph.D. (1973), University of Indiana at Bloomington. 1H. BIGGS, THE LAW OF NATIONS 298 (2d ed. 1952). The comprehensive nature of territorial jurisdiction has been characterized by C. Hyde: "Within the national do- main the will of the territorial sovereign is supreme." 1 C. HYDE, INTERNATIONAL LAW: CHIEFLY AS INTERPETED AND APPLIED BY ME UNrrED STATES 640 (2d ed. 1947). 2For illustrative materials on the principle of territorial supremacy, see 2 J. MooRE, A DIGEST OF INTERNATIONAL LAW §§ 175 et seq. (1906). 3When agreement is reached on the question of opening of diplomatic relations, the next matter considered is the exchange of representatives. National representatives sent by one state to another to conduct diplomatic affairs are called "diplomatic agents." Article 1, paragraph (e), of the 1961 Vienna Convention on Diplomatic Rela- tions defines a "diplomatic agent" as "the head of the mission or a member of the diplomatic staff of the mission." Vienna Convention Diplomatic Relations, done April 18, 1961, in force April 24, 1964, [1972] 3 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95 [hereinafter cited to U.N.T.S. only]. 'For a detailed study of the origin, growth, and purposes of the historical bases of diplomatic immunity, see M. OGDON, BASES OF DIPLOMATIC IMMUNrrY (1936). 92 WASHINGTON AND LEE LAW REVIEW [Vol. XXXIII of freedom from interference by individual sovereigns. Consequently, questions concerning the legal status of these international organiza- tions, the extent of the privileges and immunities of national repre- sentatives to such organizations, and the extent of the privileges and immunities of international officials employed by the organizations have acquired increasing importance. Though the United Nations is only one of many international organizations, the problems which its existence has created in this area are representative of those experi- enced by other international institutions. An analysis of the legal status of United Nations Member representatives and officials illus- trates the differences and similarities between the traditional privi- leges and immunities accorded to diplomatic agents and the func- tional privileges and immunities accorded to these new privileged groups. II. LEGAL STATUS OF MEMBER REPRESENTATIVES TO THE UNITED NATIONS In the twenty six years that the United Nations has resided in New York, there has been little publicity regarding the privileges and immunities of its Member representatives. Few untoward incidents have occurred; the public is generally unaware of the difference be- tween the privileges and immunities of diplomatic agents accredited to a host state and those of Member representatives accredited to the United Nations. Because of this lack of understanding, it is often assumed that the privileges and immunities of Member representa- tives are the same as those of diplomatic agents. This erroneous notion is not totally without foundation. Tradi- tionally, Member representatives to international conferences or to international organizations were treated as members of diplomatic missions.5 For example, the juridical basis of the privileges and im- munities of Member representatives to the League of Nations, as set forth in paragraph 4 of article 7 of the Covenant of the League of Nations, stipulated that Member representatives and League offi- cials should enjoy full diplomatic privileges and immunities. 5W. HALL, A TREATISE ON INTERNATIONAL LAw 365 (8th ed. 1924). &LEAGUE OF NATIONS COVENANT, art. 7, states that "[r]epresentatives of the mem- bers of the League and officials of the League when engaged on the business of the League shall enjoy diplomatic privileges and immunities." 7rhe report of Rapporteur of Committee IV/2, which was adopted by the San Francisco Conference, includes the following comment: In order to determine the nature of the privileges and immunities, the Committee has seen fit to avoid the term 'diplomatic' and has preferred to substitute a more appropriate standard, based, for the 1976] PRIVILEGES AND IMMUNITIES In-contrast, article 105 paragraph 2 of the United Nations Charter does not grant full diplomatic privileges and immunities: "Repre- sentatives of the Members of the United Nations . .shall similarly enjoy such privileges and immunities as are necessary for the inde- pendent exercise of their functions in connection with the Organiza- tion." It is clear that the draftsmen of the United Nations Charter were not sure that the term "diplomatic" would be appropriate in this article. They rejected the traditional rationale and adopted a functional principle as the legal basis for granting privileges and immunities to Member representatives.7 From primitive times, man has extended certain rights and privi- leges to representatives of other political groups in order to facilitate interaction for mutual benefit. A dozen or more legal theories have been advanced to justify the extension of diplomatic privileges and immunities.8 In general, however, legal scholars rely upon one of three commonly accepted theories to explain why diplomatic privileges and immunities should exist: "The three most important doctrines, which have all played a role in the development of the law, are the doctrines of the representative character of diplomatic agents, the fiction of exterritoriality, and the functional theory."9 The theory of exterritoriality followed in the wake of sixteenth century ideas of territorial sovereignty and exaggerated diplomatic privileges. Exterritoriality means that diplomatic envoys must be treated as if they are still living in the territory of the sending state.' This theory is based upon two principles: (1) the concept of resi- dence-the diplomatic agent is not subject to local law because he does not reside in the host territory; and (2) the correlative concept of territory-the local authority considers the diplomatic premises to be foreign territory." This theory has been seriously criticized by legal purposes of the Organization, on the necessity of realizing its purposes and, in the case of the representatives of its members and the officials of the Organization, on providing for the independent exercise of their functions. Documents of the United Nations Conference on International Organization, San Francisco, Vol. L3 at 704 (1945). 8HAvARD LAw SCHOOL, Research in InternationalLaw: DiplomaticPrivileges and Immunities, 26 AM. J. INT'L L. (1932). E.g., the theory of necessity, the theory of exterritoriality, the respresentative theory, the theory of the right of legation, and the theory of function. 'Kunz, Privileges and Immunities of International Organizations,41 AM. J. INT'L L. 828, 837 (1947). "See BRIGGS, supra note 1. "See OGDON,supra note 4, at 80. 94 WASHINGTON AND LEE LAW REVIEW [Vol. XXXIII scholars 2 and attacked by the courts of different countries and has slowly fallen into disuse. Under the representative theory, the diplomatic agent is the per- sonification of his ruler or of a sovereign state whose independence must be respected. Many references to this concept are found in literature
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