University of Baltimore Law Forum Volume 7 Article 12 Number 2 January, 1977

1-1977 Diplomatic Immunity from Local Jurisdiction Eugene M. Zoglio

Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons

Recommended Citation Zoglio, Eugene M. (1977) "Diplomatic Immunity from Local Jurisdiction," University of Baltimore Law Forum: Vol. 7 : No. 2 , Article 12. Available at: http://scholarworks.law.ubalt.edu/lf/vol7/iss2/12

This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. the Commission requested the Mary­ internships have also been set up with been acquiesced in by states for the pur­ land Attorney General's Office to study several local colleges. pose of attaining certain desired ends. the Maryland Annotated Code to de­ Under the present structure, each of There are several theories devised dur­ termine which laws, if any, might be af­ the twenty-four Commissioners either ing successive periods of political fected by the Equal Rights Amendment. heads a task force or works on a commit­ thought for the purpose of achieving a This study continues today. tee which focuses on a particular issue of settlement of cases in accordance with The Commission recognized that the importance to women. Present issues the then existing and desired institutions. law was the most effective means of at­ being dealt with include credit, continu­ Many of the precepts which we have in­ tacking sex discrimination. Commission­ ing education, employment, legislation, herited from the past are descended ers began testifying at legislative hear­ rape, Title IX (sex discrimination in edu­ from theories and doctrines which no ings, particularly in the area of employ­ cation), and history. Public conferences longer conform to factual conditions to­ ment discrimination. One group of as well as production and distribution of day. These archaic precepts, still re­ employees seen as victimized by handbooks continue. peated in treatises and judicial opinions, employment discrimination was In the past year, the Commission's are responsible for the conflicting views household workers. The Commission name was changed to the Maryland as to the law which should govern a cur­ decided that these workers should at Commission for Women. This name rent situation. (Montell Ogdon, Basis of least be entitled to the minimum wage, change was decided upon because a Diplomatic Immunity, 8-9.) and by 1974 both Maryland and the new direction is perceived for the pres­ federal government agreed. After Mary­ ent Commission: "Now, we're becom­ II land enacted its wage law, the Commis­ ing more actively concerned with and sion published The Picture Is Changing ready to work for women in Maryland." While numerous juristic theories have (which is now available in Spanish, as Decade, at 4. The future, then, is ac­ been advanced to justify the extension of well as in English) to educate both tivism. diplomatic privileges and immunities, household workers and heads of writers have consistently turned to one households. With the Commission's of three traditional theories to explain work and support, household workers Diplomatic this practice. also became eligible for workmen's The first is the theory of personal rep­ compensation benefits under a 1975 Immunity resenation. Under this theory the dip­ state law. lomatic agent is the personification of his Another booklet, Know Your Rights, from Local ruler or of a sovereign state whose inde­ was published in 1973. This booklet dis­ pendence must be respected. This cussed consumer laws, employment Jurisdiction theory dates back to the Greek city­ rights, labor laws, marriage and divorce, states and gained widespread accep­ Medicare, property rights of women, so­ tance during the Rennaissance when cial security, unemployment insurance, by Eugene M. Zoglio diplomacy was dynastically oriented. and workmen's compensation. Sovereigns of this period were extremely The list of accomplishments of the sensitive to the affronts or insults ac­ Commission is indeed long. Many con­ Diplomatic immunity may be broadly corded their diplomatic representatives. ferences have been set up, educational defined as the freedom from local juris­ The envoys were considered the repre­ courses have been offered, legal equality diction accorded under international law sentative character of their sovereign, has been secured - all with the aid of by the receiving state to duly accredited entitled to the same honors to which the the Commission. diplomatic officers, their families, and sovereign would be entitled if he were servants. Associated with such immunity personally present. In England and the is the inviolability which applies to the United States in the eighteenth and THE PRESENT AND BEYOND premises of embassies and legations and nineteenth centuries the Chief Justice in Today the Commission is headed by the residences of duly accredited dip­ both countries in rulings relative to the Shoshana S. Cardin, who became lomatic officers. Diplomatic immunity is inviolability of the diplomatic representa­ chairwoman after Ms. Boucher's resig­ a universally recognized principal of in­ tive made statements, to wit, "The dip­ nation in 1974. Under Ms. Cardin, the ternational law, which civilized nations lomat is to be left at liberty to devote variety of projects continues to thrive. In have accepted as binding them in their himself body and soul to the business of late 1974, a new project began in con­ intercourse with one another. his embassy. He does not owe even a junction with the University of Baltimore International law in relation to dip­ temporary allegiance to the sovereign to School of Law, in which student interns lomatic immunity is the result of usages whom he is accredited, and he has at analyze and present reports on bills be­ and customs which have developed dur­ least as great a privilege from suit as the fore the General Assembly that will di­ ing the ages. The law of diplomatic im­ sovereign he represents" and "The per­ rectly or potentially affect women. Other munity, like all international law, has son of a public minister is sacred and in- violable. Whoever offers any violence to importance since the Second World War 31 of the Vienna Convention on Dip­ him, not only affronts the sovereign he and one very important reason is the ex­ lomatic Relations. Under Article 31, a represents, but also hurts the common pansion in the size of missions. Another diplomatic agent shall enjoy immunity safety and well-being of nations; he is reason for its acceptance is the increase from the criminal jurisdiction of the re­ guilty of a crime against the whole in the number of international organiza­ ceiving state and will also enjoy immu­ world." (Clifton E. Wilson, Diplomatic tions since World War II, which has re­ nity from its civil jurisdiction except in the Privileges and Immunities, 2-3.) quired the granting of immunities to ad­ case of: (a) a real action relating to pri­ It was in this milieu that the Act of Ann ditional persons. Since such organiza­ vate immovable property situated in the was passed by the British Parliament in tions are without territory or repre­ territory of the receiving state, unless he 1708, and Sections 252-254 of Title 22 sentational status, only the theory of holds it on behalf of the sending state for of the United States Code were passed in functional necessity adequately explains the purposes of the mission; (b) an 1790. Those statutes and relative Court this development. (Wilson, 21.) action relating to succession in which the decisions gave the diplomatic ministers, diplomatic agent is involved as executor, their families, and employees the III administrator, heir or legatee as a private broadest extension of privileges and Legislation providing for jurisdictional person and not on behalf of the sending immunities. immunities in the United States is copied state; (c) an action relating to any profes­ The second theory to justify the exten­ after the British mode. The pertinent sional or commercial activity exercised sion of diplomatic immunity is the theory laws provide immunity from criminal by the diplomatic agent in the receiving of exterritoriality. Under this theory and civil jurisdiction. 22 U.Sc. 252,253, state outside his official functions. which began in the fifteenth century 254. The Vienna Convention of 1961 when countries began maintaining per­ provides for absolute criminal immunity IV manent missions in foreign states, the and modified civil immunity. The United While a substantial body of diplomatic diplomat was not considered to be sub­ States became a signatory to this Con­ rules, based on reciprocity, is available to ject to local law because he does not re­ vention on December 13, 1972. Title guide the conduct of nations in their legal side in the host country since the dip­ 22, Section 252, tells us any writ or pro­ and political treatment of foreign dip­ lomatic premises are considered to be cess which is sued out or prosecuted by lomatic representatives, two problems the same as foreign territory. The am­ any person or judge whereby any per­ still remain: (1) the extent of such bassador must be treated as if he were son entitled to diplomatic immunity is ar­ privileges and immunities as are enjoyed still living in the territory of the sending rested or imprisoned, or his goods or by diplomatic personnel under current state. While the theory of exterritoriality chattels are seized or attached, such writ international practice and (2) the has been modified by many countries, or process is void. While this domestic categories of persons to whom these acts the modern trend has been toward a re­ law on the subject of diplomatic immu­ of international courtesy should apply. pudiation of the "fiction" as being out­ nity has been enacted by the United Article 1 of the Vienna Convention on moded and, logically, no longer applica­ States, diplomatic immunity is a princi­ Diplomatic Relations says a diplomatic ble. Some examples where exterritorial­ ple of international law, and no domestic agent includes the head of a mission and ity has been dismissed are when con­ legislation is necessary to give it effect. members of the diplomatic staff, or those tracts, signed in an Embassy, as well as American Courts are bound to recognize having diplomatic rank, all of whom are purchases consummated on diplomatic and apply the Law of Nations as part of entitled to maximum immunities. Under premises, were held to have occurred in the law of the land. Article 1, Section 8, Articles 37 and 38, the administrative the host country. Clause 10, gives to the Congress the and technical staff, the service staff The third theory used to justify the ex­ power to define and punish Piracies and (employed by the mission), and private tension of diplomatic immunity is the Felonies committed on the high seas, servants (employed by a member of the theory of functional necessity. Under this and offenses against the Law of Nations. mission) all of whom receive limited im­ theory the diplomatic agent must have Section 252 grants complete immunity munities of different degrees. Members freedom of movement and freedom of from both civil and criminal process of the family of the diplomatic agent are communication, as well as immunity under all circumstances to one entitled to entitled to the same immunities granted from local jurisdiction, in order that na­ diplomatic immunity. This interpretation the agents, and nationals of the receiving tions may carry on international inter­ is based on the view that the exercise of state have immunity only in the carrying course. This theory i!' based on the idea jursidiction over a diplomatic officer, re­ out of their official actions. The im­ of interdependence of states and their gardless of whether the action pertains to munities granted under the Vienna need for mutual freedom and noninter­ his private or official acts, would interfere Convention are more restrictive than ference in their relations, and is found in with and hamper him in the perfor­ those currently in practice in the United all modern efforts to codify the rules of mance of his official functions. This prin­ States. diplomatic intercourse. The Vienna ciple of international law has not gained Being gUided by Sections 252, 253, Convention on Diplomatic Relations is general acceptance and goes well be­ and 254 of Article 22 of the U.S. Code, in this tradition. The theory has grown in yond the immunity granted under Article the United States has extended absolute diplomatic immunity in both criminal conditions and developments in lomatic immunity. Under S. 3826 and civil cases to the following persons: the receiving state, and reporting whenever any person is injured in his duly accredited diplomatic officers, thereon to the Government of the person or property by any ambassador wives, dependent children who are sending state; and or public minister or any domestic or members of the diplomatic officer's (e) promoting friendly relations be­ domestic servant of such minister, full household, and their servants. This tween the sending state and the compensation would be paid to the complete immunity is also extended to receiving state, and developing injured person from the Bureau of administrative, clerical and service per­ their economic, cultural, and sci­ Claims. sonnel of diplomatic missions regardless entific relations. This Bill is laudatory in that it protects of nationality. This immunity is not ex­ If a person attached to a diplomatic the citizen who is injured by a person en­ tended to the members of their families. mission is engaged in performing the joying diplomatic immunity by making Also covered with complete immunity above listed functions, then his position the United States liable while keeping in­ is the resident representative to the Uni­ is one in which diplomatic immunity tact the inviolability of the diplomat. ted Nations and such members of his should be given. An article in the Lon­ staffs as may be agreed upon between don Times on March 18, 1958, stated VI the Secretary General of the United Na­ that there is both an obligation on the The United States is burdened with a tions, the Government of the United part of the host nation "not to be too diplomatic policy that has its roots and States, and the Government of the censorious in its scrutiny of the list of laws from an era when the theory of per­ member concerned. This immunity is those privileged" and on the part of the sonal representation and exterritoriality personal and covers members of their sending nation to keep the size of their were in vogue. Those theories are no families but not their servants. Also cov­ missions at "an absolute minimum". longer acceptable and the theory of ered with complete immunity is the per­ V functional necessity is the logical position manent resident representative to the There have been attempts over the in today's milieu. This change in Organization of American States and years by Members of Congress to repeal philosophy by most governments which certain members of his staff. Finally, a the 1970 Statutes because of the com­ grant diplomatic immunity, so that the limited number of officers of the North plete immunity from criminal, civil and agent must have freedom of movement Atlantic Treaty Organization, National administrative jurisdiction which is ac­ and freedom of communication as well Representatives and International Staff corded to all foreign nationals, not per­ as immunity from local jurisdiction, in enjoy the immunities and privileges ac­ manent residents, and assigned the order that nations may carryon interna­ corded to diplomatic representatives proper nonimmigrant visa status, in the tional intercourse, is followed by the logi­ and their official staff of comparable employ of an embassy in Washington. cal conclusion that diplomatic immunity rank. This number, excluding family The Department of State is seeking their should be limited to those acts per­ members, has reached 7,090. (Office of repeal. The House of Representatives formed by a diplomatic agent which is rel­ Protocol, Dept. of State, March, 1976.) Bill- H.R. 14828 - and its counter­ ative to his diplomatic mission. While a How does a state determine that an part in the Senate - S. 3019 - did not host country may be justified in granting employee of a diplomatic mission is per­ pass this current Session of Congress. an ambassador or the head of a mission forming tasks which should grant him Three Bills introduced in the Senate by complete inviolability and immunity immunity? The position of the United Senator Hathaway (D., Maine) were from jurisdiction because of the need for States is not very clear, and, as previ­ also short lived but have the possibility of freedom of actions and it may be difficult ously noted, the list of those eligible in being reintroduced in the new Congress. to divide the private personality of the the United States is quite extensive. Ar­ One of these Bills, S. 3824, would repeal diplomat from the public personality, or ticle 3 of the Vienna Convention on the 1790 Statutes. This action would always to distinguish his private from his Diplomatic Relations lists a function unequivocally make the Vienna Con­ public acts, we should not go so far as to classification. It states that the functions vention on Diplomatic Relations the un­ extend the complete immunity to all of a diplomatic mission should consist, controverted law in this country relative members of his staff, household, and inter alia. in: to diplomatic immunity. Bills S. 3825 family. Under the theory of functional (a) representing the sending state in and S. 3826 would establish within the necessity, immunity should be granted the receiving state; Department of State a bureau of claims only to those additional members of a (b) protecting in the receiving state against foreign ministers and diplomats. diplomatic mission when the act can be the interests of the sending state Since a repeal of the 1790 Statutes related to their official functions. With and of its nationals, within the would not effect the inviolability of the the expansion of the size of diplomatic limits permitted by international diplomat and certain members of his missions and the Significant increase in law; family and staff, repeal of the 1790 Sta­ the numbers of additional people which (c) negotiating with the Government tutes does not aid a citizen of the United have been granted full immunity, citi­ of the receiving state; States in receiving compensation for in­ zens of this country are left with no legal (d) ascertaining by all lawful means juries received by a person enjoying dip- remedies by which to enforce ac- tions against members of diplomatic has developed over the centuries into a missions. Citizens are getting seriously universally recognized doctrine of inter­ The Motorists injured and killed by automobiles driven national law, it must be relevant to the by people with diplomatic immunity and task for which it exists. The fundamental and businessmen are losing untold numbers purpose is the protection of the channels of dollars because they cannot enforce of diplomatic intercourse by exempting the President contracts. Law enforcement officials see diplomatic representatives from local (With apologies to Lewis Carroll) members of diplomatic missions violate jurisdiction; however, the exemptions the laws with impunity. It does a citizen should not be limitless. The United by J. Martin McDonough, Jr. little good who has been seriously in­ States has, since its independence, rec­ jured or maimed for life or who has suf­ ognized and applied the principle of dip­ (The folio wing is apoem written in early 1974 fered substantial monetary loss to know during the "energy crisis" which we all still lomatic immunity and the decisions of remember viVidly. Considering the results of that all he can hope for is compassionate the United States Courts have helped to the recent Presidential Election, it seemed appropriate to print the poem as a reminder consideration by the sending state or the develop and clarify the concept. Con­ of the way things were then.) United States' declaration of the erring gress has enacted domestic statutes to diplomat as a persona non grata coupled give specific effect to the international The sun was shining on the sea, with a demand for his recall. law of diplomatic immunity. Shining with all his might: The next Congress should consider The broad and liberal interpretation of He did his very best to make the Bills which Senator Hathaway sub­ diplomatic immunity to which the United The bUlows smooth and bright­ mitted last Session. 22 U.s.c. 252-254 States adheres must be significantly And this was odd, because it was should be repealed. We should have the altered. The changing styles of modern The middle of the night. Vienna Convention on Diplomatic Rela­ day society cannot be burdened with ******* tions as our guiding law relative to dip­ laws that are two hundred years old. The "Now what's the country coming to?" lomatic immunity. Here diplomatic im­ multiplication of both missions and per­ The gas-less legions cried: "We give and give, and never get, munity will still remain absolute for crim­ sonnel has given us thousands of You'd think we have no pride." inal violations, but civil immunity will be people who come in daily contact with "The Seventh Crisis has been met," modified. We should also reconsider just our citizens, yet who are free from hav­ Their President replied. what duties fall under the diplomatic ing to abide by our civil or criminal laws. duties umbrella, particularly as to lower It is no longer satisfactory to believe that "In sixty-eight, I came again Within the public view, diplomatic personnel, to nationals, and a person entitled to diplomatic immunity And Law and Order was the plank to non-diplomatic persons. Are there will respect American laws, nor is it satis­ That first brought me to you. non-diplomatic duties being performed factory to the injured citizens to know The plumbing thieves of Watergate by people with diplomatic immunity? that the proper remedy is not to subject Should show what I can do. If a person who is covered by diploma­ the diplomat to our jurisdiction but rather to invoke the sanctions of his own "We quickly apprehended them, tic immunity and is engaging in acts in And gave them speedy trial. the furtherance of the goals of his mis­ government by asking for his recall. We quashed their pleas of innocent sion creates liabilities by his acts or The injured citizen should not be de­ (I made a flat denial) omissions, then the injured person pendent upon the generosity of the am­ And now the subject should be shut: I find the topic vile." should be able to proceed against the bassador of the sending state in settling a cause of action. Diplomatic immunity United States Government for a just and "Now, wait a sec'," the drivers said, satisfactory settlement of the issue. This must function within the parameters of As they queued up for fuel, would be accomplished by the passing twentieth century realities. EqUity and "We'd like to hear about the tapes of Senate Bill S. 3826 sponsored by justice demand no less. That caused your present duel, And how you keep your taxes down, Senator Hathaway which calls for the When ours are high and cruel." Department of State to establish a Bureau of Claims Against Foreign Minis­ " ... Now, let me say about the tapes, ters and Diplomats to consider cases in THE LAW That I can see no wrong which a person has been injured in per­ by In making tape recordings of Some White House birds in song, son or property. The United States can Lim E. Ricks And keeping these recordings safe then be subrogated and attempt to re­ At home, where they belong. cover its losses through diplomatic There was a young lady from Dover channels. This policy will make our citi­ Who complained in an action of trover "The Presidential Privilege To the Judge she worded, zens more tolerant of members of the Has been invoked before "T'was my virtue converted." To make our Nation more secure diplomatic community. Said the judge, "fair market value you can (The year was Eighteen-four), While the principle of diplomatic im­ recover." And so I use it on the tapes - munity originated in ancient times and To keep us out of war.