Abstract
It was established previously that while the concept of diplomatic privileges and immunities is ancient in origin and well established in international law and practice, international privileges and immunities, i.e., the extension of the concept to encompass the international functionary, is fairly modern. Moreover, the latter concept has evolved from a broader set of requirements than those relating to regular diplomatic privileges and immunities. The legal basis of international privileges and immunities is found ostensibly in special treaty law, which may be supplemented by other sources such as judicial precedent and customary practice. Municipal law and other unilateral acts of particular nations also account for some guidance in the development of the overall concept.
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References
An example of this usage may be found in Article io of the Protocol on the Privileges and Immunities of the European Economic Community: “…be accorded the customary privileges, immunities and facilities.” (Treaty Establishing the European Economic Community and Connected Documents [Luxembourg: Publishing Service of the European Communities, 1958], p. 304; and U.N.T.S.,Vol. 298 [1958], pp. 72, 140–146.) Another example is found in Article II of the same Protocol of the European Communities. (Treaty Establishing a Single Council and a Single Commission of the European Communities [Luxembourg: Publishing Services of the European Communities, 1965], p. 48.) Also see Article 14 (b) of the Supplementary Protocol No. 1 to the Convention for European Economic Cooperation: “enjoy the same exemption from taxation… as is enjoyed by officials of the principal international organizations and on the same conditions;…” (Council of Europe, European Yearbook, I [1955], 249.)
See discussion of status of personnel of the unions in previous Chapter, supra., p. 15. Josef L. Kunz, “Privileges and Immunities of International Organizations,” American Journal of International Law, XLI (October, 1947 ), 829.
Congress, American State Papers, Foreign Relations,V, “Congress of Panama, 1826,” (1826), 834.
William H. Malloy, Treaties, Conventions, International Acts, Protocols and Agreements between the United States and other Powers, 1776–1909, I (Washington, n.c.; Government Printing Office, 1910 ), I IO.
Rheinurkunden, Tome I, 1803–1860 (The Hague: Martinus Nijhoff, 1918), p. 4z. 10 Ibid.,p. 212.
H. Walther, “Le Statut International de la Navigation du Rhin,” European Yearbook, II ( The Hague: Martinus Nijhoff, 1956 ), 258–269.
Text of the Treaty may be found in F. Israel, Major Peace Treaties of Modern History 1648–1967 (4 vols.; New York: McGraw Hill Book Co., 1967), II, 947ff.
Great Britain, Foreign Office, British and Foreign State Papers,1864–1865, Lv, “European Danube Commission: Act of Galatz of November 2, 1864,” 93.
Edward Hertslet, Map of Europe by Treaty, HI (London: Butterworth’s, 1875), 1919. 14 Ibid., IV, 2759.
British and Foreign State Papers, 1884–1885, LXXVI, “General Act of the Conference at Berlin: Act of Congo Navigation of February 26, 1885,” 4–12.
The concept of neutrality also was applied to ambulances and hospitals, and to persons employed in hospitals and ambulances, comprising the staff or the superintendence, medical service, administration, transport of wounded, as well as chaplains. Additionally, such persons whose functions were no longer required by a capturing force were entitled to safe-conduct by the occupying force to the outposts of the enemy. (Arts. I, 2 and 3, “Amelioration of the Conditions of the Wounded on the Field of Battle [Red Cross Convention],” signed at Geneva, August 22, 1864, in Bevans, Treaties, I, 7ff.) Vestiges of the concept of neutrality remain as documented by the provisions of Article 15 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict which was signed at the Hague on May 14, 1954 under the auspices of the United Nations Educational, Scientific and Cultural Organization: “As far as consistent with the interest of security, personnel engaged in the protection of cultural property shall, in the interests of such property, be respected and, if they fall into the hands of the opposing Party, shall be allowed to continue to carry out their duties whenever the cultural property for which they are responsible has also fallen into the hands of the opposing Party.” (U.N.T.S.,Vol. 249 [1956], p. 252.)
Sources for these privileges appear to be legion, but seem to derive from Emerich de Vattel, The Law of Nations (3 vols., London: Newberry, et al., 1760), Book IV, chap. vii, secs., 82–85, 92, 125: and chap. ix, secs., 118–119. Also: Robert Phillimore, Commentaries on International Law, II (2d ed., 2 vols., London: Butterworth’s, 1873), secs. 156–171, 204.205, and 209; particularly pp. 192–227. John B. Moore, A Digest of International Law, IV (Washington, D.C.: Government Printing Office, 1906), chap. 15. Also see notes in George B. Davis, Elements of International Law (3d ed., New York: Harper & Bros., 1908 ), pp. 199–210.
Extra-territoriality, while more frequently imposed during the nineteenth century than since, has taken a new format in the shape of the administrative tribunals of the League of Nations and the United Nations, and more recently in the form of the International Court of the European Communities. An explanation of the use of the term exterritoriality in this study is necessitated because arbitrary and multiple application of this word has resulted in its being used interchangeably with the older term extra-territoriality which applies to a practice rapidly becoming obsolete in international affairs. It should be noted, however, that the use of extra-territoriality in modern western practice is somewhat allied to the status of military establishments located on foreign soil both in the case of an occupation force, as a part of a mutual or collective security force, or other peacekeeping force. Exterritoriality, on the other hand, is a legal fiction which was designed to connote the immunity of a diplomatic person from local jurisdiction. It has no bearing on the erroneous use of this term in referring to consular jurisdiction or extra-territorial jurisdiction which was usually imposed upon one nation by another to secure for the latter a privileged position and to afford some measure of protection to its citizens sojourning in the former from local “barbarous” customs. The misuse of this term has led some scholars to argue against its continued use in the language of international law. (Clifton E. Wilson, Diplomatic Privileges and Immunities [Tucson, Arizona: University of Arizona Press, 1967], pp. 11–14.) Elmer Plischke correctly distinguished between the two terms and their respective concepts (Elmer Plischke, Conduct of American Diplomacy [3d ed.; Princeton: D. Van Nostrand Co., Inc., 1967], n. 2, p. 335). Clyde Eagleton avoided the use of the term in discussions of privileges and immunities (Clyde Eagleton, International Government [3d ed.; New York: The Ronald Press Co., 1957], pp. 145–147). But as early as 1900, George B. Davis used the two terms interchangeably (Davis, Elements,pp. 87–88).
Article 5, reprinted in James B. Scott, An International Court of Justice (New York: Oxford University Press, 1916), p. toi.
James B. Scott’s Introduction in the Proceedings of the Third National Conference American Society for Judicial Settlement of International Disputes, December 20–21, 1912 Washington, D.C. (Baltimore: Williams & Wilkins Co., 1913), pp. xviii-xx.
David H. Miller, The Drafting of the Covenant (New York: J. P. Putnam Sons, 1928 ), II, 108–109.
Martin Hill, Immunities and Privileges of International Officials ( Washington, n.c.: Carnegie Endowment for International Peace, 1947 ), P. 4.
Cecil J. B. Hurst, “Diplomatic Immunities: Modern Developments,” The British Yearbook of International Law, X (1929), 9.
League of Nations, The Records of the First Assembly, Meetings of the Committees (Geneva, 1920, I, 440. Also see James B. Scott’s comments supra.,p. 41 relative to the merits of allowing nationals of participants to a dispute to serve as judges in its solution.
League of Nations, The Records of the First Assembly, Meetings of the Committees Geneva, 1920, I, 356–357.
Permanent Court of International Justice, Annual Report (January 1, 1922 - June 15, 1925),Publications of the Court, Series E, No. I, p. 103.
Permanent Court of International Justice, Official Journal,1928, pp. 985–987.
League of Nations, Committee of Experts for the Progressive Codification of International Law, Report to the Council of the League of Nations on the Questions Which Appear Ripe for International Regulation (L.N. Doc. c. 196. M70. 1927 V.), pp. 77, 85. A definitive international Statute on this subject remains today as a vital objective of the Federation of International Civil Service Associations.
Permanent Court of International Justice, Official Journal,1928, pp. 985–987.
The Under Secretary of State (Phillips) to the Turkish Ambassador (Muhtar), Oct. 16, 1933, Ms. Dept. of State, file 701.09/374, in Green H. Hackworth, Digest of International Law (Washington, n.c.: Government Printing Office, 1942), IV, 422–23.
Harvard Law School, “Research in International Law: Diplomatic Privileges and Immunities,” American Journal of International Law,XXVI, supplement (April, 1932, 15–187.
Clifton E. Wilson, Diplomatic Privileges and Immunities (Tucson: University of Arizona Press, 1967), p. t. Montell Ogden, Juridical Bases of Diplomatic Immunity ( Washington, D.C.: John Byrne & Co., 1936 ), pp. 63–194.
Hackworth (Digest, IV, 394–395) distinguished between the personal representative of the sovereign, and the representative of all the people of the republic citing the deminunition of the importance of the former with the growth of constitutional forms of government. A third distinction is made regarding the ambassador on a special mission who represents the President at a particular function held in a foreign country to which an American minister was accredited.
Representative character: “The right to represent the person of a sovereign and to have personal audience of the sovereign to whom the diplomat was accredited… In the present state of international law the sovereign is no longer a crowned head placed at the apex of supreme power. The nation alone is sovereign, and only the nation’s interests are entrusted to diplomatic agents.” (L.N. Doc. A.15.1928V. [1928.V4], p. 46). However, diplomats continue to represent the state or nation, deriving their responsibilites or acting as the personal representative of the head of State as the State symbol.
Thus, international officials in this category could be entitled to the rank of ambassador, ambassador extraordinary and plenipotentiary. (Hackworth, Digest,IV, 395.)
The person of the diplomatic official is inviolable and sacred. Whoever offers any violence to him not only affronts the sovereign he represents, but also hurts the common safety and well-being of nations; he is guilty of a crime against the whole world.“ (Respublica v. Longchamps, i Dallas 116 [17841.)
Plischke, Conduct,p. 334; and Preamble to the Vienna Convention on Diplomatic Relations, April 18, 1961, U.N.T.S.,Vol. 5oo (1964), pp. 96–98.
Edwin H. Fedder, “Functional Basis of International Privileges and Immunities: A New Concept in International Law and Organization,” American University Law Review IX (January, 1960), 60.
Georges Langrod, The International Civil Service ( Dobbs Ferry, New York: Oceana Publications, Inc., 1968 ), p. 78.
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Michaels, D.B. (1971). Theoretical Analysis of International Privileges and Immunities. In: International Privileges and Immunities. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9220-0_3
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