Document:- A/CN.4/98 Codification of the International Law Relating to Diplomatic Intercourse and Immunities Memorandum prepared by the Secretariat Topic: Diplomatic intercourse and immunities Extract from the Yearbook of the International Law Commission:- 1956 , vol. II Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations DIPLOMATIC INTERCOURSE AND IMMUNITIES DOCUMENT A/CN.4/98 Memorandum prepared by the Secretariat [Original text: French] [21 February 1956] CONTENTS Paragraphs Page INTRODUCTION 1—16 130 A. Preliminary observations 1—4 130 B. The Yugoslav proposal for placing the topic on the agenda of seventh session of the General Assembly 5—6 131 C. The Yugoslav draft resolution and the discussion in the Sixth Committee . 7—10 , 131 D. General Assembly resolution 685 (VII) 11—13 131 E. Purpose of this study 14—16 132 CHAPTER I. REVIEW OF THE ATTEMPTS TO REACH GENERAL AGREEMENT ON THE PROBLEM OF DIPLOMATIC PRIVILEGES AND IMMUNITIES .... 17—167 132 A. Diplomatic intercourse and immunities up to the Aix-la-Chapelle Regulation . 17—26 132 1. Diplomatic intercourse before the Congress of Vienna 18—20 132 2. Decisions taken at the Congress of Vienna (1815) and at Aix-la-Chapelle (1818) 21—26 132 B. Attempts to codify international law relating to diplomatic intercourse and immunities 27—167 134 1. General observations 27—28 134 2. International treaties relating to diplomatic intercourse and immunities . 29—41 134 (a) Bilateral treaties 29—37 134 (b) Multilateral treaties 38—41 135 3. The League of Nations 42—112 136 (a) Background 42—46 136 (6) Analysis of the Sub-Committee's work 47—112 136 (i) Material suitable for codification 48 136 (ii) Method of work adopted 49—50 137 (iii) The question of exterritoriality 51—53 137 (iv) Inviolability 54—55 137 (v) Immunity from taxation 56—57 137 (vi) Immunity from criminal jurisdiction 58—59 138 (vii) Immunity from civil jurisdiction 60—67 138 (viii) Beginning and end of the mission 68—71 139 (ix) Juridical status of diplomatic agents in the territory of a third State 72 140 (x) Persons to whom diplomatic privileges extend 73—76 140 (xi) Questionnaire addressed to States 77—78 141 (xii) Analysis of replies of Governments to the questionnaire .... 79—98 141 (xiii) Some conclusions 99—104 145 (xivj Classification of diplomatic agents 105—112 145 4. Work by private authorities in connexion with the codification of regulations governing diplomatic intercourse and immunities 113—167 146 (a) Preliminary observations 113 146 (6) Bluntschli's draft code, 1868 114—115 146 (c) Fiore's draft code, 1890 116—118 147 (d) Pessoa's draft code, 1911 119—123 147 (e) Project of the International Commission of American Jurists . 124 148 (/) Phillimore's draft code, 1926 125—126 148 (g) Strupp's draft code, 1926 127—128 148 (h) Draft code of the Japanese Branch of the International Law Association and the Kokusaiho Gakkwai, 1926 129 148 (i) Resolution of the Institute of International Law, 1929 130—132 149 (/) Harvard Law School draft on diplomatic privileges and immunities . 133—164 149 (k) Some conclusions 165—167 152 CHAPTER II. DIPLOMATIC INTERCOURSE AND THE THEORETICAL BASIS OF DIPLO- MATIC IMMUNITIES. CONSIDERATION OF SOME SPECIFIC ASPECTS OF THE PROBLEM 168—310 152 A. Diplomatic intercourse 168—207 152 1. General observations: The right of legation 168—175 152 2. Acceptance (agreation) 176—177 153 129 130 Yearbook of the International Law Commission, Vol. II Paragraphs Page 3. Position where agent is a national of the country in which he is to perform diplomatic functions 178—184 153 4. Duties of diplomatic agents 185—195 154 5. Termination of the mission 196—206 156 6. Some conclusions 207 157 B. Theoretical basis of diplomatic immunities 208—230 157 1. General observations 208 157 2. The theory of exterritoriality . 209—217 157 3. The theories of " representative character" and " functional necessity" . 218—230 158 C. Questions raised by the existence of diplomatic immunities, and analysis of certain relevant judicial decisions 231—310 161 1. General observations 231—232 161 2. Inviolability 233—254 161 (a) Persons entitled to immunities and especially to inviolability .... 240—245 162 (6) Unofficial staff 246—254 163 3. Exemption from jurisdiction 255—286 164 (a) Exemption from criminal jurisdiction 255—259 164 (6) Exemption from civil jurisdiction 260—282 164 (c) Attendance as witness 283—286 167 4. Waiver of immunities 287—291 168 5. Fiscal immunities 292—299 169 (a) General observations 292—293 169 (b) Exemption from personal taxes 294 169 (c) Exemptions relating to the official premises of the mission 295—297 169 (d) Exemption from customs duties 298—299 170 6. Franchise de l'hotel 300—301 170 7. Position of the agent in a third State 302—307 170 8. Termination of the mission 308—310 171 CHAPTER III. SUMMARY 311—314 171 Introduction " The work of the League of Nations Committee of Experts, of the Havana Convention of 1928, and of the A. PRELIMINARY OBSERVATIONS Harvard Research, the documentation on which that 1. During its sixth session, held at Paris from 3 June work was based, as well as the rich sources of judicial to 28 July 1954, the International Law Commission practice, of diplomatic correspondence, and of doctrinal briefly examined the question of the codification of the writing and exposition, provide sufficient material for rules governing " Diplomatic intercourse and immunities " a comprehensive effort at codifying this part of inter- and took the following decision: national law. The wealth of the available practice need not necessarily mean that such codification would be " In pursuance of General Assembly resolution 685 merely in the nature of systematization and imparting (VII) of 5 December 1952, by which the Assembly precision to a body of law with regard to which there requested the Commission to undertake, as soon as it is otherwise agreement on all details. This is not the considered it possible, the codification of the topic case. Practice has shown divergencies, some of them " Diplomatic intercourse and immunities " and to treat persistent, on such questions as the limits of immunity it as a priority topic, the Commission decided to with regard to acts of a private law nature, the initiate work on this subject. It appointed Mr. A. E. F. categories of the diplomatic staff which is entitled to Sandstrbm as special rapporteur." * full jurisdictional immunities, the immunities of the 2. At its first session, held at New York from 12 April subordinate staff, the immunities of nationals of the to 9 June 1949, the Commission, in accordance with receiving State, the extent of the immunities from article 18, paragraph 1, of its Statute, had surveyed " the various forms of taxation, conditions of waiver of whole field of international law with a view to selecting immunities, and the nature of acts from which such topics for codification " (A/CN.4/4). In order to facilitate waiver will be implied. There may also have to be this task, the Secretariat had submitted a memorandum considered the consequences of the partial amalga- containing a comprehensive analysis of international law mation, in some countries, of the diplomatic and con- relating to this work of codification. The question of sultar servies. For the task confronting the Inter- diplomatic immunities is dealt with on pages 53 and 54 national Law Commission in this matter is not only of that memorandum; after a short reference to the one of diplomatic immunities and privileges, but also relevant work of the League of Nations, to the Sixth of the various aspects of diplomatic intercourse in International Conference of American States at Havana general." 2 (1928) and to the draft convention published in 1932 by the Harvard Research in International Law, the memo- 3. At the sixth meeting of its first session, the Inter- randum concludes: national Law Commission decided that: "... the subject 1 Official Records of the General Assembly, Ninth Session, Supplement No. 9, para. 73. 8 A/CN.4/1/Rev. 1, p. 54. Diplomatic intercourse and immunities 131 of diplomatic intercourse and immunities would appear should: "... undertake the codification of the topic in the list of topics to be retained." 3 ' Diplomatic intercourse and immunities ' as a matter of 4. The report of the International Law Commission priority ". In support of this request, it was stated in the covering the work of its first session mentions the preamble that the codification of international law relating problem as the twenty-first of the " Topics of inter- to this topic "... is necessary and desirable for the national law considered by the Commission"4 and purpose of promoting an improvement of relations among among the fourteen provisionally selected for codi- States ". fication.5 It was not, however, one of the topics to which 8. The Sixth Committee discussed the item during its the Commission gave priority.6 313th to 317th meetings, held from 29 October to 3 November 1952.n It may be useful to consider very B. THE YUGOSLAV PROPOSAL FOR PLACING THE TOPIC ON briefly the various amendments of substance which were THE AGENDA OF THE SEVENTH SESSION OF THE GENERAL submitted during these discussions but failed to obtain ASSEMBLY the Committee's approval. In this way it will be possible 5. Subsequently, by a letter dated 7 July 1952 addressed to perceive the true scope of the present study. to the Secretary-General, the acting permanent represent- 9. First, at the 315th meeting, the United States ative of the Federal People's Republic of Yugoslavia to representative expressed the opinion that the scope of the the United Nations requested the inclusion of the Yugoslav draft resolution should be broadened, "..