United Nations Convention on the Law of the Sea

United Nations Convention on the Law of the Sea

Signed

10 December 1982

Location

Montego Bay, Jamaica

Effective

16 November 1994

Condition

60 ratifications

Signatories

157

Parties

166

Depositary

Secretary-general of the United Nations

Languages

Arabic, Chinese, English, French, Russian and Spanish

[1]

[2]

Convention on Fishing and Conservation of Living Resources of the

High Seas, entry into force: 20 March 1966
Although UNCLOS I was considered a success, it left open the
important issue of breadth of territorial waters.
UNCLOS II[edit]
In 1960, the United Nations held the second Conference on the Law
of the Sea ("UNCLOS II"); however, the six-week Geneva conference
did not result in any new agreements. Generally speaking,
developing nations and third world countries participated only as
clients, allies, or dependents of United States or the Soviet Union,
[citation needed]
with no significant voice of their own.
UNCLOS III[edit]

[2][3]

The United Nations Convention on the Law of the Sea (UNCLOS),

also called the Law of the Sea Convention or the Law of the Sea
treaty, is the international agreement that resulted from the third
United Nations Conference on the Law of the Sea (UNCLOS III),
which took place between 1973 and 1982. The Law of the Sea
Convention defines the rights and responsibilities of nations in their
use of the world's oceans, establishing guidelines for businesses, the
environment, and the management of marine natural resources. The
Convention, concluded in 1982, replaced four 1958 treaties. UNCLOS
came into force in 1994, a year after Guyana became the 60th
[1]
nation to sign the treaty. As of August 2013, 165 countries and the
European Union have joined in the Convention. However, it is
uncertain as to what extent the Convention codifies customary
international law.
While the Secretary General of the United Nations receives
instruments of ratification and accession and the UN provides
support for meetings of states party to the Convention, the UN has
no direct operational role in the implementation of the Convention.
There is, however, a role played by organizations such as the
International Maritime Organization, the International Whaling
Commission, and the International Seabed Authority (the latter
being established by the UN Convention).
Historical backgroundedit
The UNCLOS replaces the older and weaker 'freedom of the seas'
concept, dating from the 17th century: national rights were limited
to a specified belt of water extending from a nation's coastlines,
usually three nautical miles, according to the 'cannon shot' rule
developed by the Dutch jurist Cornelius van Bynkershoek. All waters
beyond national boundaries were considered international waters:
free to all nations, but belonging to none of them (the mare liberum
principle promulgated by Grotius).
In the early 20th century, some nations expressed their desire to
extend national claims: to include mineral resources, to protect fish
stocks, and to provide the means to enforce pollution controls. (The
League of Nations called a 1930 conference at The Hague, but no
agreements resulted.) Using the customary international law
principle of a nation's right to protect its natural resources,
President Truman in 1945 extended United States control to all the
natural resources of its continental shelf. Other nations were quick
to follow suit. Between 1946 and 1950, Chile, Peru, and Ecuador
extended their rights to a distance of 200 nautical miles (370 km) to
cover their Humboldt Current fishing grounds. Other nations
extended their territorial seas to 12 nautical miles (22 km).
By 1967, only 25 nations still used the old three-mile (5 km) limit,
while 66 nations had set a 12-nautical-mile (22 km) territorial limit
and eight had set a 200-nautical-mile (370 km) limit. As of 28 May
2008, only two countries still use the three-mile (5 km) limit: Jordan
[4]
and Palau. That limit is also used in certain Australian islands, an
area of Belize, some Japanese straits, certain areas of Papua New
Guinea, and a few British Overseas Territories, such as Anguilla.
UNCLOS I[edit]
In 1956, the United Nations held its first Conference on the Law of
the Sea (UNCLOS I) at Geneva, Switzerland. UNCLOS I resulted in
four treaties concluded in 1958:
Convention on the Territorial Sea and Contiguous Zone, entry into
force: 10 September 1964
Convention on the Continental Shelf, entry into force: 10 June 1964
Convention on the High Seas, entry into force: 30 September 1962

Sea areas in international rights

The issue of varying claims of territorial waters was raised in the UN
in 1967 by Arvid Pardo, of Malta, and in 1973 the Third United
Nations Conference on the Law of the Sea was convened in New
York. In an attempt to reduce the possibility of groups of nationstates dominating the negotiations, the conference used a
consensus process rather than majority vote. With more than 160
nations participating, the conference lasted until 1982. The resulting
convention came into force on 16 November 1994, one year after
the sixtieth state, Guyana, ratified the treaty.
The convention introduced a number of provisions. The most
significant issues covered were setting limits, navigation,
archipelagic status and transit regimes, exclusive economic zones
(EEZs), continental shelf jurisdiction, deep seabed mining, the
exploitation regime, protection of the marine environment, scientific
research, and settlement of disputes.
The convention set the limit of various areas, measured from a
carefully defined baseline. (Normally, a sea baseline follows the lowwater line, but when the coastline is deeply indented, has fringing
islands or is highly unstable, straight baselines may be used.) The
areas are as follows:
Internal waters
Covers all water and waterways on the landward side of the
baseline. The coastal state is free to set laws, regulate use, and use
any resource. Foreign vessels have no right of passage within
internal waters.
Territorial waters
Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline,
the coastal state is free to set laws, regulate use, and use any
resource. Vessels were given the right of innocent passage through
any territorial waters, with strategic straits allowing the passage of
military craft as transit passage, in that naval vessels are allowed to
maintain postures that would be illegal in territorial waters.

"Innocent passage" is defined by the convention as passing through

waters in an expeditious and continuous manner, which is not
"prejudicial to the peace, good order or the security" of the coastal
state. Fishing, polluting, weapons practice, and spying are not
"innocent", and submarines and other underwater vehicles are
required to navigate on the surface and to show their flag. Nations
can also temporarily suspend innocent passage in specific areas of
their territorial seas, if doing so is essential for the protection of its
security.
Archipelagic waters
The convention set the definition of Archipelagic States in Part IV,
which also defines how the state can draw its territorial borders. A
baseline is drawn between the outermost points of the outermost
islands, subject to these points being sufficiently close to one
another. All waters inside this baseline are designated Archipelagic
Waters. The state has full sovereignty over these waters (like
internal waters), but foreign vessels have right of innocent passage
through archipelagic waters (like territorial waters).
Contiguous zone
Beyond the 12-nautical-mile (22 km) limit, there is a further 12
nautical miles (22 km) from the territorial sea baseline limit, the
contiguous zone, in which a state can continue to enforce laws in
four specific areas: customs, taxation, immigration and pollution, if
the infringement started within the state's territory or territorial
waters, or if this infringement is about to occur within the state's
[5]
territory or territorial waters. This makes the contiguous zone a
hot pursuit area.
Exclusive economic zones (EEZs)
These extend from the edge of the territorial sea out to 200 nautical
miles (370 kilometres; 230 miles) from the baseline. Within this
area, the coastal nation has sole exploitation rights over all natural
resources. In casual use, the term may include the territorial sea and
even the continental shelf. The EEZs were introduced to halt the
increasingly heated clashes over fishing rights, although oil was also
becoming important. The success of an offshore oil platform in the
Gulf of Mexico in 1947 was soon repeated elsewhere in the world,
and by 1970 it was technically feasible to operate in waters 4000
metres deep. Foreign nations have the freedom of navigation and
overflight, subject to the regulation of the coastal states. Foreign
states may also lay submarine pipes and cables.
Continental shelf
The continental shelf is defined as the natural prolongation of the
land territory to the continental margins outer edge, or 200 nautical
miles (370 km) from the coastal state's baseline, whichever is
greater. A state's continental shelf may exceed 200 nautical miles
(370 km) until the natural prolongation ends. However, it may never
exceed 350 nautical miles (650 kilometres; 400 miles) from the
baseline; or it may never exceed 100 nautical miles (190 kilometres;
120 miles) beyond the 2,500 meter isobath (the line connecting the
depth of 2,500 meters). Coastal states have the right to harvest
mineral and non-living material in the subsoil of its continental shelf,
to the exclusion of others. Coastal states also have exclusive control
over living resources "attached" to the continental shelf, but not to
creatures living in the water column beyond the exclusive economic
zone.
Aside from its provisions defining ocean boundaries, the convention
establishes general obligations for safeguarding the marine
environment and protecting freedom of scientific research on the
high seas, and also creates an innovative legal regime for controlling
mineral resource exploitation in deep seabed areas beyond national
jurisdiction, through an International Seabed Authority and the
[6]
Common heritage of mankind principle.
Landlocked states are given a right of access to and from the sea,
[7]
without taxation of traffic through transit states.
Part XI and the 1994 Agreement[edit]
Part XI of the Convention provides for a regime relating to minerals
on the seabed outside any state's territorial waters or EEZ (Exclusive
Economic Zones). It establishes an International Seabed Authority
(ISA) to authorize seabed exploration and mining and collect and
distribute the seabed mining royalty.
The United States objected to the provisions of Part XI of the
Convention on several grounds, arguing that the treaty was

unfavorable to American economic and security interests. Due to

Part XI, the United States refused to ratify the UNCLOS, although it
expressed agreement with the remaining provisions of the
Convention.
From 1983 to 1990, the United States accepted all but Part XI as
customary international law, while attempting to establish an
alternative regime for exploitation of the minerals of the deep
seabed. An agreement was made with other seabed mining nations
and licenses were granted to four international consortia.
Concurrently, the Preparatory Commission was established to
prepare for the eventual coming into force of the Conventionrecognized claims by applicants, sponsored by signatories of the
Convention. Overlaps between the two groups were resolved, but a
decline in the demand for minerals from the seabed made the
seabed regime significantly less relevant. In addition, the decline of
Socialism and the fall of Communism in the late 1980s had removed
much of the support for some of the more contentious Part XI
provisions.
In 1990, consultations were begun between signatories and nonsignatories (including the United States) over the possibility of
modifying the Convention to allow the industrialized countries to
join the Convention. The resulting 1994 Agreement on
Implementation was adopted as a binding international Convention.
It mandated that key articles, including those on limitation of seabed
production and mandatory technology transfer, would not be
applied, that the United States, if it became a member, would be
guaranteed a seat on the Council of the International Seabed
Authority, and finally, that voting would be done in groups, with
each group able to block decisions on substantive matters. The 1994
Agreement also established a Finance Committee that would
originate the financial decisions of the Authority, to which the
largest donors would automatically be members and in which
decisions would be made by consensus.
On 1 February 2011, the Seabed Disputes Chamber of the
International Tribunal for the Law of the Sea (ITLOS) issued an
advisory opinion concerning the legal responsibilities and obligations
of States Parties to the Convention with respect to the sponsorship
of activities in the Area in accordance with Part XI of the Convention
[8]
and the 1994 Agreement. The advisory opinion was issued in
response to a formal request made by the International Seabed
Authority following two prior applications the Authority's Legal and
Technical Commission had received from the Republics of Nauru and
Tonga regarding proposed activities (a plan of work to explore for
polymetallic nodules) to be undertaken in the Area by two Statesponsored contractors (Nauru Ocean Resources Inc. (sponsored by
the Republic of Nauru) and Tonga Offshore Mining Ltd. (sponsored
by the Kingdom of Tonga). The advisory opinion set forth the
international legal responsibilities and obligations of Sponsoring
States AND the Authority to ensure that sponsored activities do not
harm the marine environment, consistent with the applicable
provisions of UNCLOS Part XI, Authority regulations, ITLOS case law,
other international environmental treaties, and Principle 15 of the
[9]
UN Rio Declaration.
Signature and ratification[edit]
The convention was opened for signature on 10 December 1982 and
entered into force on 16 November 1994 upon deposition of the
[1]
60th instrument of ratification. The convention has been ratified
by 166 parties, which includes 165 states (163 member states of the
United Nations plus the Cook Islands and Niue) and the European
[2][10]
Union.
UN member states that have signed, but not ratified
Cambodia, Colombia, El Salvador, Iran, North Korea, Libya, United
Arab Emirates
landlocked: Afghanistan, Bhutan, Burundi, Central African Republic,
Ethiopia, Liechtenstein, Rwanda
UN member states that have not signed
Eritrea, Israel, Peru, Syria, Turkey, United States, Venezuela
landlocked: Andorra, Azerbaijan, Kazakhstan, Kyrgyzstan, San
Marino, South Sudan, Tajikistan, Turkmenistan, Uzbekistan
The UN Observer states of the Vatican City and the State of Palestine
have not signed the convention.
Territories that are part of ratified countries, but where the
convention is not in force
[11
Aruba (Kingdom of the Netherlands)

International Tribunal for the Law of the Sea

From Wikipedia, the free encyclopedia
Jump to: navigation, search

UNCLOS adopted

10 December 1982

UNCLOS in force

16 November 1994

Website
http://www.itlos.org
Hamburg, Germany

Seat

ITLOS seen from the River Elbe.

Working

English

languages

French

Judges from

21 nations
Leaders

President

Shunji Yanai

Vice President

Albert J. Hoffmann

The International Tribunal for the Law of the Sea (ITLOS) is an

intergovernmental organization created by the mandate of the Third
United Nations Conference on the Law of the Sea. It was established
by the United Nations Convention on the Law of the Sea, signed at
Montego Bay, Jamaica, on December 10, 1982. The Convention
entered into force on November 16, 1994, and established an
international framework for law over "all ocean space, its uses and
resources". The tribunal is based in Hamburg, Germany. The
Convention also established the International Seabed Authority, with
responsibility for the regulation of seabed mining beyond the limits
of national jurisdiction, that is beyond the limits of the territorial sea,
the contiguous zone and the continental shelf.

Establishment

The Tribunal has the power to settle disputes between party states
(there are currently 161: 160 states plus the European Union).

Air Defense Identification Zone

From Wikipedia, the free encyclopedia
Jump to: navigation, search

with Taiwan's ADIZ; the government of Taiwan expressed its

"regret" over Japan's move.[8] Regarding the coast of mainland China,
Japan's ADIZ has a distance of 130 km at its closest point.[9]
China and Russia do not recognize Japan's ADIZ.[10]
South Korea[edit]

Air Defense Identification Zone of Japan (blue) and China (pink)

An Air Defense Identification Zone (ADIZ) is airspace over land or
water in which the identification, location, and control of civil aircraft
is required in the interest of national security.[1] They extend beyond
a country's airspace to give the country more time to respond to
foreign and possibly hostile aircraft.[2] The authority to establish an
ADIZ is not given by any international treaty nor prohibited by
international law and is not regulated by any international body.[2][3]
The first ADIZ was established by the United States soon after World
War II. Following the incident of September 11, 2001 ( September 11
attacks ) when civilian commercial aircraft was abused for mass
destruction, ADIZ became prominent as a method to prepare or
control a foreign aircraft from entering their territory. About 20
countries and regions now have such zones including Canada,
India,[4] Japan, Pakistan, Norway and the United Kingdom, People's
Republic of China, South Korea, Taiwan, United States, Sweden,
Iceland and more. Russia and North Korea have unofficial ADIZ for
themselves as well. [1][2][5] Usually such zones only cover undisputed
territory, do not apply to foreign aircraft not intending to enter
territorial airspace, and do not overlap.[3][6]
Air defense zones should not be confused with Flight Information
Regions (FIRs), which are used to manage air traffic.[1] FIR is
different by the fact that they are areas established for the facilitation
of air traffic and airspace management. [7]
United States and Canada[edit]
Main articles: Air Defense Identification Zone (North America) and
Air Defense Identification Zone (Washington DC)

Expansion of Korea Air Defense Identification Zone (KADIZ)

South Korea operates a zone that covers most but not all of its
claimed airspace.[11] It does not cover some remote spots.[11] The zone
was established in 1951, during the Korean War, by the United States
Air Force to block communist forces.[11] In 2013, in response to the
establishment of a Chinese zone that covers disputed territory, the
South Korean government considered expanding their zone to include
islands of Marado and Hongdo, and Ieodo, a submerged rock within
the overlapping exclusive economic zones of South Korea and
China.[11] On December 8, 2013, Defense Ministry of Republic of
Korea announced the expansion of the Korea Air Defense
Identification Zone (KADIZ).
When part of or the whole flight route of an aircraft enter the KADIZ
area, it is required to send a specific flight plan 1 hour prior
departure. Civilian aircraft with regular line should submit a
repetitive flight plan to the air traffic control. Since there are no flight
routes going across KADIZ that does not pass the territorial waters of
the Republic of Korea, all flights are obligated to send a flight plan
no matter what. There are no need for legal actions when an aircraft
enter KADIZ as long as all aircraft follow to their flight plans
reported to the Korean government. If there is a change in the flight
passage or an approach without prior notification, the Korean air
force have the right to immediately identify or track down the aircraft
and be prepared for interception. However, military force such as
shooting down the plane cannot be exercised.

The United States maintains four zones: The Contiguous US ADIZ;

Alaska ADIZ; Guam ADIZ; and Hawaii ADIZ.[1] Under U.S. law and
policy, the zone applies only to commercial aircraft intending to enter
U.S. airspace.[1] An air defense command and control structure was
developed in 1950, creating five Air Defense Identification Zones
around North America. If radio interrogation failed to identify an
aircraft in the ADIZ, the Air Force launched interceptor aircraft to
identify the intruder visually. The air defense system reached its peak
in 1962, however with the deployment of the SS-6 ICBM in the
USSR, strategic threats shifted overwhelmingly to ICBM attacks, and
bomber intrusions were considered to be less of a threat. It does apply
to aircraft passing through the zone to other countries. These zones
were established after broad consultations with other countries and
with aviation authorities worldwide.

After both South Korea expanded KADIZ and China established their
ADIZ in 2013, certain areas overlap with each other. The KADIZ
boundary area at northwest Jeju Island (about 2,300 km) overlaps
with the East Chinese Sea. Also, South Korea's domestic aircraft
cannot avoid entering China's ADIZ near Ieodo even if the flight's
purpose is for rescue or searching distressed/missing aircraft. More
tension is increasing as the area of South Korea, China and Japan's
FIR reiterate with each other.[12] These sensitive issues are expected
to bring military or diplomatic conflict between the three countries.

Canada also operates a section of the North American ADIZ.

On November 23, 2013 the People's Republic of China (PRC)

established a zone in the East China Sea.

China[edit]
Main article: Air Defense Identification Zone (East China Sea)

Japan[edit]
Japan has an ADIZ that overlaps most of its Exclusive Economic
Zone. Its western border was set up after World War II by the US
military at 123 degrees east. This resulted in only the eastern half of
Yonaguni Island being part of Japan's ADIZ and the western half
being part of Taiwan's ADIZ. On June 25, 2010 Japan extended its
ADIZ around this island 22 km westwards. This led to an overlapping

The announcement of the zone drew attention and international

criticism, including from most of China's East Asian neighbors such
as Japan, the Philippines, South Korea and Taiwan, and from the E.U.
and the U.S. These responses focused on two related aspects: while
hitherto zones had only covered territory that was undisputed at the
time of their establishment, China's ADIZ in the East China Sea
covers the Japanese-controlled Senkaku Islands (Diaoyu Islands in

the PRC)[2] and also includes Socotra Rock, which is claimed by

Korea. Secondly, China's zone overlaps with other countries' ADIZ
and imposes requirements on both civilian and military aircraft
regardless of destination.[3][6]
The establishment of the Chinese zone is nonetheless not unique in
some respects. For example, in 2010 Japan extended its ADIZ by
some two dozen kilometers around its island nearest Taiwan such that
it overlapped that of Taiwan.[13] It has also been claimed that the
PRC/Japan dispute over the Diaoyu/Senkaku islands predates Japan's
1969 establishment of its ADIZ over the islands, although there is no
record of the People's Republic of China announcing a claim to the
islands in 1969 or before.[14]
The Chinese government has noted that any established international
limits for defining and enforcing an ADIZ are not clearly
defined.[citation needed] Chuck Hagel, the American Secretary of

Vienna Convention on Diplomatic Relations

Defense, while acknowledging there is nothing new or unique in

establishing an ADIZ, criticized the manner in which China had acted
as "unilateral", "immediate" and "without consultation".[15] American
Vice-President Joe Biden made no public mention of the Chinese
ADIZ following his meeting with Chinese President Xi,[16] although
elsewhere expressed concern that the Chinese move had escalated
tensions in the region.
As of Dec. 4, 2013 some 55 airlines in 19 countries and 3 regions
have complied with China's ADIZ rules.[17] South Korea's Ministry of
Transport said South Korean airlines would not recognize the
Chinese ADIZ.[11] Japan said its airlines would also not recognize the
zone.
In 2014, China's Foreign Ministry dismissed reports that they were
considering a similar ADIZ over the South China Sea region, as the
countries of ASEAN were no threat.[18

Two years later, the United Nations adopted a closely related treaty,
the Vienna Convention on Consular Relations.
Signed

18 April 1961
Summary of provisions[edit]

Location

Vienna

Effective

24 April 1964

Condition

Ratification by 22 states

The treaty is an extensive document, containing 53 articles.

Following is a basic overview of its key provisions.[2]

[1]

Signatories

60

Parties

190[1] (as of April 2014)

Depositary

UN Secretary-General

Languages

Chinese, English, French, Russian and Spanish

The Vienna Convention on Diplomatic Relations of 1961 is an

international treaty that defines a framework for diplomatic relations
between independent countries. It specifies the privileges of a
diplomatic mission that enable diplomats to perform their function
without fear of coercion or harassment by the host country. This
forms the legal basis for diplomatic immunity. Its articles are
considered a cornerstone of modern international relations. As of
April 2014, it has been ratified by 190 states.[1]
Contents
[show]
History[edit]
Throughout the history of sovereign nations, diplomats have enjoyed
a special status. Their function to negotiate agreements between
states demands certain special privileges. An envoy from another
nation is traditionally treated as a guest, their communications with
their home nation treated as confidential, and their freedom from
coercion and subjugation by the host nation treated as essential.
The first attempt to codify diplomatic immunity into diplomatic law
occurred with the Congress of Vienna in 1815. This was followed
much later by the Convention regarding Diplomatic Officers
(Havana, 1928).
The present treaty on the treatment of diplomats was the outcome of a
draft by the International Law Commission. The treaty was adopted
on 18 April 1961, by the United Nations Conference on Diplomatic
Intercourse and Immunities held in Vienna, Austria, and first
implemented on 24 April 1964. The same Conference also adopted
the Optional Protocol concerning Acquisition of Nationality, the
Optional Protocol concerning the Compulsory Settlement of
Disputes, the Final Act and four resolutions annexed to that Act.

Article 9. The host nation at any time and for any reason
declare a particular member of the diplomatic staff to be
persona non grata. The sending state must recall this
person within a reasonable period of time, or otherwise this
person may lose their diplomatic immunity.
Article 22. The premises of a diplomatic mission, such as
an embassy, are inviolate and must not be entered by the
host country except by permission of the head of the
mission. Furthermore, the host country must protect the
mission from intrusion or damage. The host country must
never search the premises, nor seize its documents or
property. Article 30 extends this provision to the private
residence of the diplomats.
Article 27. The host country must permit and protect free
communication between the diplomats of the mission and
their home country. A diplomatic bag must never be
opened even on suspicion of abuse. A diplomatic courier
must never be arrested or detained.
Article 29. Diplomats must not be liable to any form of
arrest or detention. They are immune from civil or criminal
prosecution, though the sending country may waive this
right under Article 32. Under Article 34, they are exempt
from most taxes, and under Article 36 they are exempt
from most customs duties.
Article 31.1c Actions not covered by diplomatic immunity:
professional activity outside diplomat's official functions.
Article 37. The family members of a diplomat that are
living in the host country enjoy most of the same
protections as the diplomats themselves.

Optional protocols[edit]
In the same year that the treaty was adopted, two amendment
protocols were added. Countries may ratify the main treaty without
necessarily ratifying these optional agreements.

Concerning acquisition of nationality. The head of the

mission, the staff of the mission, and their families, shall
not acquire the nationality of the receiving country.
Concerning compulsory settlement of disputes. Disputes
arising from the interpretation of this treaty may be brought
before the International Court of Justice.

State parties to the convention[edit]

States ratified the convention
As of April 2014, there are 190 state parties to the convention[1]
including all UN member states except Antigua and Barbuda,
Republic of Palau, Solomon Islands, South Sudan and Republic of
Vanuatu, as well as UN observer states Holy See and State of
Palestine. The Republic of China signed and ratified the Vienna
Convention on Diplomatic Relations on April 18, 1961 and
December 19, 1969 respectively prior to the UN granting China's seat
to the People's Republic of China. There are no states that have
signed the treaty but have not ratified it.

Diplomatic immunity is a form of legal immunity that ensures

that diplomats are given safe passage and are considered not
susceptible to lawsuit or prosecution under the host country's laws,
although they can still be expelled. It was agreed as international law
in the Vienna Convention on Diplomatic Relations (1961), though the
concept and custom have a much longer history. Many principles of
diplomatic immunity are now considered to be customary law.
Diplomatic immunity as an institution developed to allow for the
maintenance of government relations, including during periods of
difficulties and even armed conflict. When receiving diplomatswho
formally represent the sovereignthe receiving head of state grants
certain privileges and immunities to ensure they may effectively
carry out their duties, on the understanding that these are provided on
a reciprocal basis.
Originally, these privileges and immunities were granted on a
bilateral, ad hoc basis, which led to misunderstandings and conflict,
pressure on weaker states, and an inability for other states to judge
which party was at fault. An international agreement known as the
Vienna Conventions codified the rules and agreements, providing
standards and privileges to all states.
It is possible for the official's home country to waive immunity; this
tends to happen only when the individual has committed a serious
crime, unconnected with their diplomatic role (as opposed to, say,
allegations of spying), or has witnessed such a crime. However, many
countries refuse to waive immunity as a matter of course; individuals
have no authority to waive their own immunity (except perhaps in
cases of defection). Alternatively, the home country may prosecute
the individual. If immunity is waived by a government so that a
diplomat (or their family members) can be prosecuted, it must be
because there is a case to answer and it is in the public interest to
prosecute them. For instance, in 2002, a Colombian diplomat in
London was prosecuted for manslaughter, once diplomatic immunity
was waived by the Colombian government.[1][2]
Ancient times[edit]

Krishna, an avatar of Vishnu, mediating for peace to avert the

Kurukshetra War of Mahabharata
The concept of diplomatic immunity can be found in ancient Indian
epics like Ramayana (between 3000 and 2000 BC) and Mahabharata
(around 4th century BC) where messengers and diplomats were given
immunity from capital punishment. In Ramayana, when the demon
king Ravana ordered the killing of Hanuman, Ravana's younger
brother Vibhishana pointed out that messengers or diplomats should
not be killed or arrested, as per ancient practices.
During the evolution of international justice, many wars were
considered rebellions or unlawful by one or more combatant sides. In
such cases, the servants of the "criminal" sovereign were often
considered accomplices and their persons violated. In other
circumstances, harbingers of inconsiderable demands were killed as a
declaration of war. Herodotus records that when heralds of the
Persian king Darius the Great demanded "earth and water" (i.e.,
symbols of submission) of Greek cities, the Athenians threw them
into a pit and the Spartans threw them down a well for the purpose of
suggesting they would find both earth and water at the bottom, these
often being mentioned by the messenger as a threat of siege.
A Roman envoy was urinated on as he was leaving the city of
Tarentum. The oath of the envoy: "This stain will be washed away
with blood!" was fulfilled during the Second Punic War. The arrest
and ill-treatment of the envoy of Raja Raja Chola by the king of
Kulasekhara dynasty (Second Cheras), which is now part of modern
India, led to a naval war called Kandalur War in AD 994.
Pope Gelasius I was the first pope recorded as enjoying diplomatic
immunity, as it is noted in his letter Duo sunt to emperor Anastasius.
As diplomats by definition enter the country under safe-conduct,
violating them is normally viewed as a great breach of honour,
although there have been a number of cases where diplomats have
been killed. Genghis Khan and the Mongols were well known for
strongly insisting on the rights of diplomats, and they would often
take terrifying vengeance against any state that violated these rights.
The Mongols would often raze entire cities to the ground in

retaliation for the execution of their ambassadors, and invaded and

destroyed the Khwarezmid Empire after their ambassadors had been
mistreated.
In 1538, King Francis I of France threatened Edmund Bonner
Henry VIII's Ambassador to the French court and later Bishopwith
a hundred strokes of the halberd as punishment for Bonner's "insolent
behaviour". Though the punishment was not actually carried out, the
incident clearly indicates that European monarchs at the time did not
consider foreign ambassadors to be completely immune from
punishment.
The beginnings of modern immunity[edit]
The British Parliament first guaranteed diplomatic immunity to
foreign ambassadors in 1709, after Count Andrey Matveyev, a
Russian resident in London, had been subjected to verbal and
physical abuse by British bailiffs.
Modern diplomatic immunity evolved parallel to the development of
modern diplomacy. In the 17th century, European diplomats realized
that protection from prosecution was essential to doing their jobs and
a set of rules evolved guaranteeing the rights of diplomats. These
were still confined to Western Europe and were closely tied to the
prerogatives of nobility. Thus, an emissary to the Ottoman Empire
could expect to be arrested and imprisoned upon the outbreak of
hostilities between their State and the empire. The French Revolution
also disrupted this system, as the revolutionary State and Napoleon
imprisoned a number of diplomats accused of working against
France. More recently, the Iran hostage crisis is universally
considered a violation of diplomatic immunity. Although the hostagetakers did not officially represent the state, host countries have an
obligation to protect diplomatic property and personnel. On the other
hand, in World War II, diplomatic immunity was upheld and the
embassies of the belligerents evacuated through neutral countries.
For the upper class of the 17th, 18th and 19th centuries, diplomatic
immunity was an easy concept to understand. The first embassies
were not permanent establishments but actual visits by high-ranking
representatives, often close relatives, of the sovereign or even the
sovereign in person. As permanent representations evolved, usually
on a treaty basis between two powers, they were frequently staffed by
relatives of the sovereign or high-ranking nobles.
Warfare was not between individuals but between their sovereigns,
and the officers and officials of European governments and armies
often changed employers. Truces and ceasefires were commonplace,
along with fraternization between officers of enemy armies during
them. When prisoners, the officers usually gave their parole and were
only restricted to a city away from the theatre of war. Almost always,
they were given leave to carry their personal sidearms. Even during
French revolutionary wars, British scientists visited the French
Academy. In such an atmosphere, it was easy to accept that some
persons were immune to the laws. After all, they were still bound by
strict requirements of honour and customs.
In the 19th century, the Congress of Vienna reasserted the rights of
diplomats; and they have been largely respected since then, as the
European model has spread throughout the world. Currently,
diplomatic relations, including diplomatic immunity, are governed
internationally by the Vienna Convention on Diplomatic Relations,
which has been ratified by almost every country in the world.
In modern times, diplomatic immunity continues to provide a means,
albeit imperfect, to safeguard diplomatic personnel from any
animosity that might arise between nations. As one article put it: "So
why do we agree to a system in which we're dependent on a foreign
country's whim before we can prosecute a criminal inside our own
borders? The practical answer is: because we depend on other
countries to honor our own diplomats' immunity just as scrupulously
as we honor theirs."[3]
The Diplomatic Relations Act of 1978 (22 U.S.C. 254a et seq.)
follows the principles introduced by the Vienna Conventions. The
United States has had a tendency to be generous when granting
diplomatic immunity to visiting diplomats, because a large number of
U.S. diplomats work in host countries less protective of individual
rights. If the United States were to punish a visiting diplomat without
sufficient grounds, U.S. representatives in other countries could
receive harsher treatment.

In the United States, if a person with immunity is alleged to have

committed a crime or faces a civil lawsuit, the State Department asks
the home country to waive immunity of the alleged offender so that
the complaint can be moved to the courts. If immunity is not waived,
prosecution cannot be undertaken. However, the State Department
still has the discretion to ask the diplomat to withdraw from her or his
duties. Often, the diplomat's visas are canceled; and the diplomat and
her or his family may be barred from returning to the United States.
Crimes committed by members of a diplomat's family can also result
in dismissal.[4]
Exceptions to the Vienna Convention[edit]
Some countries have made reservations to the Vienna Convention on
Diplomatic Relations, but they are minor. A number of countries
limit the diplomatic immunity of persons who are citizens of the
receiving country. As nations keep faith to their treaties with
differing zeal, other rules may also apply, though in most cases this
summary is a reasonably accurate approximation.[5] The Convention
does not cover the personnel of international organizations, whose
privileges are decided upon on a case-by-case basis, usually in the
treaties founding such organizations. The United Nations system
(including its agencies, which comprise the most recognizable
international bodies such as the World Bank and many others) has a
relatively standardized form of limited immunities for staff traveling
on U.N. laissez-passer; diplomatic immunity is often granted to the
highest-ranking officials of these agencies. Consular officials (that do
not have concurrent diplomatic accreditation) formally have a more
limited form of immunity, generally limited to their official duties.
Diplomatic technical and administrative staff also have more limited
immunity under the Vienna Convention; for this reason, some
countries may accredit technical and administrative staff as attach.
Other categories of government officials that may travel frequently to
other countries may not have diplomatic passports or diplomatic
immunity, such as members of the military, high-ranking government
officials, ministers, and others. Many countries provide nondiplomatic official passports to such personnel, and there may be
different classes of such travel documents such as official passports,
service passports, and others. De facto recognition of some form of
immunity may be conveyed by states accepting officials traveling on
such documents, or there may exist bilateral agreements to govern
such cases (as in, for example, the case of military personnel
conducting or observing exercises on the territory of the receiving
country).
Formally, diplomatic immunity may be limited to officials accredited
to a host country, or traveling to or from their host country. In
practice, many countries may effectively recognize diplomatic
immunity for those traveling on diplomatic passports, with
admittance to the country constituting acceptance of the diplomatic
status.
Abuse[edit]
In reality, most diplomats are representatives of nations with a
tradition of professional civil service, and are expected to obey
regulations governing their behaviour and they suffer strict internal
consequences (disciplinary action) if they flout local laws. In many
nations a professional diplomat's career may be compromised if they
(or even members of their family) disobey the local authorities or
cause serious embarrassment, and such cases are, at any rate, a
violation of the spirit of the Vienna Conventions.
The Vienna Convention is explicit that "without prejudice to their
privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the
receiving State." Nevertheless, on some occasions, diplomatic
immunity leads to some unfortunate results; protected diplomats have
violated laws (including those that would be violations at home as
well) of the host country and that country has been essentially limited
to informing the diplomat's nation that the diplomat is no longer
welcome (persona non grata). Diplomatic agents are not, however,
exempt from the jurisdiction of their home state, and hence
prosecution may be undertaken by the sending state; for minor
violations of the law, the sending state may impose administrative
procedures specific to the foreign service or diplomatic mission.
Violation of the law by diplomats has included espionage, smuggling,
child custody law violations, and even murder: In London in 1984,

policewoman Yvonne Fletcher was killed on the street by a person

shooting from inside the Libyan embassy. The incident caused a
breakdown in diplomatic relations until Libya admitted "general
responsibility" in 1999.[6]
Employer abuse[edit]
Diplomatic immunity from local employment and labor law when
employing staff from the host country has precipitated abuse. The
local staff are employed where local knowledge is needed (such as an
administrative assistant, press/PR officer), or as menial staff like a
cleaner, maid or mechanic. When the employer is a diplomat, the
employees are in a legal limbo where the laws of neither the host
country nor the diplomat's country are enforceable, so that an abusive
diplomat employer can act with virtual impunity. Diplomats have
ignored local laws concerning minimum wages, maximum working
hours, vacation and holidays. The worst abusers have imprisoned the
employees in their homes, deprived them of their earned wages,
passports, and communication with the outside world, abused them
physically and emotionally, deprived them of food and invaded their
privacy.[7][8] In the case of corrupt countries and abusive diplomats, it
has been virtually impossible to enforce payment of wages or any
standards whatsoever. South Africa, for example, was criticised for
claiming immunity from labor laws relating to a Ukrainian domestic
worker at the residence of the South African ambassador to Ireland in
Ireland.[9] In Finland, a Philippine maid escaped from an embassy of
an unidentified Asian country, reported being held in conditions
approaching slavery: she was forced to work from 7 am. to 10 pm., 7
days a week, and the ambassador's children were permitted to hit her.
On grounds of diplomatic immunity, no charges could be filed.[10]
The American Civil Liberties Union filed an amicus brief in Swarna
v. Al-Awadi to argue that human trafficking is a commercial activity
engaged in for personal profit, which falls outside the scope of a
diplomats official functions, and therefore diplomatic immunity does
not apply.[11]
Vehicular[edit]
A particular problem is the difficulty in enforcing ordinary traffic
regulations such as prohibitions on double parking. For example, the
Autobahn 555 in Cologne, Germany was nicknamed the
"Diplomatenrennbahn" (Diplomatic Raceway), back when Bonn was
the capital of West Germany, because of the numerous diplomats that
used to speed through the highway under diplomatic immunity.
Certain cities, e.g., The Hague, have taken to impounding such cars
rather than fining their owners. Diplomats' status does not guarantee
the release of impounded cars.
This also includes parking violations. In New York City, the home of
the United Nations Headquarters (and hence thousands of diplomats),
the city regularly protests to the Department of State about nonpayment of parking tickets because of diplomatic status. Diplomatic
missions have their own regulations but many require their staff to
pay any fines due for parking violations. A 2006 study by two
economists found that there was a significant correlation between
home-country corruption (as measured by Transparency
International) and unpaid parking fines; nonetheless, approximately
30 countries (or 20%) had fewer than one unpaid fine per diplomat
over a five-year period, and 20 had none at all. Six countries had in
excess of 100 violations per diplomat: Kuwait, Egypt, Chad, Sudan,
Bulgaria and Mozambique.[12]
In cities that impose a congestion charge, the decision of some
diplomatic missions not to furnish payment has proved controversial.
In London, embassies have amassed approximately 58 million in
unpaid charges as of 2012, with the American embassy comprising
approximately 6 million and the Russian, German and Japanese
missions around 2 million each.[13][14]
Financial[edit]
Historically, the problem of large debts run up by diplomats has also
caused many problems. Some financial institutions do not extend
credit to diplomats because they have no legal means of ensuring the
money is repaid. Local citizens and businesses are often at a
disadvantage when filing civil claims against a diplomat, especially
in cases of unpaid rent, alimony, and child support.

Rents[edit]
The bulk of diplomatic debt lies in the rental of office space and
living quarters. Individual debts can range from a few thousand
dollars to $1 million in back rent. A group of diplomats and the office
space in which they work are referred to as a diplomatic mission.
Creditors cannot sue missions individually to collect money they
owe. Landlords and creditors have found that the only thing they can
do is contact a city agency to see if they can try to get some money
back. They cannot enter the offices or apartments of diplomats to
evict them because the Foreign Sovereign Immunities Act says that
"the property in the United States of a foreign state shall be immune
from attachment, arrest and execution" (28 U.S.C. 1609). This has
led creditors who are owed money by diplomats to become more
cautious about their renters and to change their rental or payment
policies.

application for her domestic worker. India registered a

strong protest and initiated a review of privileges afforded
[21]
to American consular officials in India.
Disputes and incidents concerning diplomatic immunity[edit]

Alimony and child support[edit]

The issue of abusing diplomatic immunity in family relations,
especially alimony and child support, has become so widespread that
it prompted discussion at the 1995 U.N. Fourth World Conference on
Women, in Beijing. Historically, the United Nations has not become
involved with family disputes and has refused to garnish the wages of
diplomats who owe money for child support, citing Sovereign
Immunity. However, in September 1995, the incumbent head of
Legal Affairs for the United Nations acknowledged there was a moral
and legal obligation to take at least a partial responsibility in family
disputes. Fathers working as diplomats who refused to fulfil their
family-related financial duties were increasing in numbers in the
United Nations: several men who had left their wives and children
were still claiming U.N. dependency, travel, and education
allowances for their families even though they are no longer
supporting those families.[15]

Taxes and fees[edit]

Diplomats are exempt from most taxes, but not from "charges levied
for specific services rendered". In certain cases, whether a payment is
or is not considered a tax may be disputed, such as central London's
congestion charge. In August 2009, it was reported that the
Government of the UK believed the United States owed
3,500,000[16] in unpaid congestion charge fees.[17] It was reported in
2006 that the UAE embassy had agreed to pay their own accumulated
charges of nearly 100,000.[18]
There is an obligation for the receiving State not to "discriminate as
between states"; in other words, any such fees should be payable by
all accredited diplomats equally. This may allow the diplomatic corps
to negotiate as a group with the authorities of the receiving country.
Diplomats are exempt from import duty and tariffs for items for their
personal use. In some countries, this has led to charges that
diplomatic agents are profiting personally from resale of "tax free"
goods. The receiving state may choose to impose restrictions on what
may reasonably constitute personal use (for example, only a certain
quantity of cigarettes per day). When enacted, such restrictions are
generally quite generous so as to avoid tit-for-tat responses.

Other[edit]

The United States Department of State prohibits its foreign

service officers from being injected with a needle by a
[19]
foreign official. Diplomats may refuse a test for blood
alcohol content but can submit to a breathalyzer test.
During the Second World War, Carl Lutz, the Swiss ViceConsul in Budapest, extended extraterritoriality to 72
buildings of Budapest in order to save people wanted by
[20]
the Nazis. According to the historian Xavier Cornut, this
is the most extended application of diplomatic immunity
[20]
ever observed.
In December 2013, in the United States, Indian consular
official Devyani Khobragade was detained, hand-cuffed,
strip searched, DNA swabbed and held in a federal holding
cell in New York. The diplomat was arrested on charges
relating to allegations of non-payment of
minimum/prevailing wage (as per US laws) and for
fraudulently lying about the wages to be paid on a visa

In his memoirs, Gerald Hensley, a former New Zealand

diplomat, told the story of how, in 1979, in Sri Lanka, the
Burmese Ambassador to Sri Lanka shot his wife as she got
out of the car after seeing a player in a night-club band of
whom she was enamoured. The next morning, his
neighbours were surprised to see the Ambassador building
a pyre on the back lawn. When the police were called, the
Ambassador opened the metal front gates just enough to
say that there was no trouble and to remind them that his
house was Burmese territory. Then he went back to work.
The houses around his long back garden were now alive
with fascinated spectators as he emerged with the body of
his wife, placed it on the pyre and set it alight. He was well
connected at home but after an awkward interval he was
recalled. He also recalled a Sudanese delegate to the UN
who had been sued for paternity by a night club singer in
New York and had had to invoke diplomatic immunity
[22]
where the reproductive kind had failed.
In 1984, Libyan dissidents protested outside the Libyan
embassy in London. British policewoman Yvonne Fletcher
was killed by gunshots originating from the embassy. To
date, the identity of the gunman has not been confirmed
and the Libyan authorities made no effort to identify the
culprit nor reveal whether the culprit was ever punished,
although two years later it became a major factor in Prime
Minister Margaret Thatcher's decision to allow U.S.
President Ronald Reagan to launch the U.S. bombing of
Libya in 1986 from American bases in the United
[23]
Kingdom.
In 1987, in New York City, 9-year-old Terrence Karamba
was placed by the Human Resources Administration in a
foster home after his elementary school teachers noticed
suspicious scars and injuries. He and his 7-year-old sister,
who was also placed in City custody but later released to
the family, told officials the wounds had been inflicted by
their father, Floyd Karamba, an Administrative Attache at
the Zimbabwean Mission to the U.N. No charges were
[24]
filed, as Mr. Karamba had diplomatic immunity.
In January 1997, in the U.S., the Deputy Ambassador of the
Republic of Georgia, Gueorgui Makharadze, caused an
accident that injured four people and killed a 16-year-old
girl. He was found to have a blood-alcohol level of 0.15%,
but was released from custody because he was a diplomat.
The Georgian government waived his immunity upon
request from the U.S., and Makharadze was tried and
convicted of manslaughter and sentenced to 7-to-21 years
in prison. After serving three years of his sentence, he was
returned to his home country, where he spent two more
years in jail before being paroled.
On 27 October 1998, in Vladivostok, Russia, Douglas Kent,
the American Consul General to Russia, was involved in a
car accident that left a young man, Alexander Kashin,
disabled. Kent was not prosecuted in a U.S. court. Under
the Vienna Convention on Consular Relations of 1963,
diplomatic immunity does not apply to civil actions relating
to vehicular accidents. However, on 10 August 2006, a U.S.
Court of Appeals ruled that, since he was using his own
vehicle for consular purposes, Kent may not be sued
[25][26]
civilly.
On February 1999 in Vancouver, Canada, Mrs. Kazuko
Shimokoji, wife of the Japanese Consul-General, showed
up at the ER of a city hospital with two black eyes and a
bruised neck. Asked about the origin of her injuries, she
told doctors that her husband had beaten her up. Hospital
staff notified the local police, who went to her home to
question her husband. Vancouver Police Inspector Ken
Davies quoted Mr. Shimokoji as saying, "Yes, I punched her
out and she deserved it", adding that Mr. Shimokoji
described the incident as "a cultural thing and not a big
deal." Although an arrest warrant was issued, Mr.
Shimokoji could not be arrested due to his diplomatic

immunity. However his statement to the police found wide

echo not only in the local press, but in the Japanese press
as well. The subsequent uproar by the public opinion
prompted the Japanese Ministry of Foreign Affairs to
waive Mr. Shimokoji's immunity, so he had to stand trial
where he entered a guilty plea, but was given an absolute
discharge. Nonetheless, he was recalled to Japan where he
[27]
was reassigned to office duty and had his pay cut.
In January 2001, in Canada, Andrei Knyazev, a Russian
diplomat drove his car into two pedestrians on a quiet
residential street, killing one and seriously injuring the
other. Knyazev had previously been stopped by Ottawa
police on two separate occasions on suspicion of impaired
driving. Russia refused the Canadian government's request
to waive his immunity. Knyazev was subsequently
prosecuted in Russia for involuntary manslaughter and
sentenced to four years in prison. His appeal of the
sentence was denied, and he served time in a penal
[28][29][30]
colony.
On 3 December 2004, in Bucharest, Romania, Christopher
Van Goethem, an American Marine serving his embassy,
disregarded a traffic signal to stop, collided with a taxi, and
[31]
killed the popular Romanian musician Teo Peter. Van
Goethem's blood alcohol content was estimated at 0.09%
from a breathalyser test, but he refused to give a blood
sample for further testing and left for Germany before
[32]
charges could be filed in Romania. The Romanian
government requested the American government to lift
his immunity, which it has refused to do. In a courtmartial, he was acquitted of manslaughter and adultery
(which is still a court martial offence) but was convicted of
[33]
obstruction of justice and making false statements.
On 13 November 2006, in New York City, Fred Matwanga,
Kenyan diplomat to the U.N., was taken into police
custody by officers responding to reports that he had
assaulted his son; but he was released after police
discovered he had a United States Department of State[34][35]
issued credential identifying him as a diplomat.
On 24 April 2008, in New Orleans, Mexican press attach
Rafael Quintero Curiel was seen stealing BlackBerry PDA
units from a White House press meeting room. Quintero
made it all the way to the airport before members of the
United States Secret Service caught up with him. He
initially denied taking the devices, but after agents showed
him the security DVD, Quintero said it was purely
accidental, gave them back, claimed diplomatic immunity
and left New Orleans with the Mexican delegation; but he
[36]
was eventually fired for the incident.
On 9 December 2009, in Tanzania, Canadian Junior Envoy
Jean Touchette was arrested after it was reported that he
spat at a traffic police officer on duty in the middle of a
traffic jam in the Banana district on the outskirts of Dar es
Salaam. Canada's High Commissioner, Robert Orr, was
summoned by the Tanzanian Foreign Ministry over the
[37][38][39]
incident, and the junior envoy was later recalled.
On 15 December 2009, in Singapore, the Romanian charg
d'affaires, Silviu Ionescu, was allegedly behind a drunkdriving hit-and-run accident that killed a 30-year-old man
and seriously injured two others. He left Singapore for
[40][41]
Romania three days after the accident.
The
Romanian foreign ministry suspended Ionescu from his
[42]
post. A coroner's inquiry in Singapore, which included
testimony by the Romanian embassy driver, concluded
[43]
that Ionescu was solely responsible for the accident. An
Interpol Red Notice was subsequently issued for his arrest
[44]
and possible extradition
notwithstanding the fact that
Romania had not waived his diplomatic immunity and had
commenced criminal proceedings against him in
[45]
Romania. The Singapore government argued that by
reason of Article 39(2) of the Vienna Convention, Ionescu
[46][47]
was no longer protected by diplomatic immunity.
In April 2010, a Qatari diplomat was arrested for having
smoked in the toilet on a US-bound flight and having joked
(upon questioning on flight) that he was trying to light his
shoe, a reference to the shoe-bomber Richard Reid. Two F16 fighter jets had been scrambled to follow this
[48]
airplane.

On 27 January 2011, in Lahore, Pakistan, an American

embassy employee, Raymond Allen Davis, shot and killed
two Pakistani civilians. According to Davis, they were
about to rob him and he acted in self-defense. When
detained by police, Davis claimed to be a consultant at the
U.S. consulate in Lahore. He was formally arrested and
remanded into custody. Further investigations revealed
that he was working with the CIA as a contractor in
Pakistan. U.S. State Department declared him a diplomat
and repeatedly requested immunity under the Vienna
Convention on Diplomatic Relations, to which Pakistan is a
[49][50]
signatory.
Police officials identified the dead men as
Faheem Shamshad, 26, and Faizan Haider, 22. A third
person, Muhammad Abad ur Rehman, was struck and
killed by a U.S. consulate car responding to the
[51]
shooting. In their investigation, police retrieved
photographs, from Davis camera, of some sensitive areas
and Pakistani defense installations; and it is possible that
[52]
he may be charged with Espionage as well. The wife of
one of the slain men subsequently committed suicide,
reportedly out of fear that Davis will not be prosecuted in
[53]
the Pakistani judicial system.
In the late evening of 10 April 2011, in Islamabad, Pakistan,
Patrick Kibuta, an electrical engineer in the United Nations
Military Observer Group in India and Pakistan caused a
serious collision with another vehicle, while under the
influence of alcohol. According to the police report, Mr.
Kibuta, who was driving in the opposing lane, collided with
a vehicle driven by a Canadian citizen residing in
Islamabad. The victim suffered multiple fractures and
required urgent surgery for her injuries. The accident
occurred in the F6/1 section of Islamabad, and the Kohsar
police impounded Mr. Kibuta's U.N. vehicle on the scene.
A lab draw at a nearby hospital confirmed that he had an
elevated blood alcohol level. Currently, charges for
reckless and drunken driving have been filed against Mr.
Kibuta; and an official investigation is pending to
determine what, if any, legal recourse may be taken
[54][55]
against Mr. Kibuta, who enjoys diplomatic immunity.
In April 2012, in Manila, Panamanian diplomat Erick
Bairnals Shcks was accused of raping a 19-year old Filipino
woman, but was later released from detention because
Shcks "enjoys protection under the 1961 Vienna
[56]
Convention".
On 16 August 2012, it was alleged by the Ecuadorian
embassy that the Government of the United Kingdom
threatened to revoke the diplomatic status of the embassy
[57]
of Ecuador in London in order to arrest Julian Assange.
On 14 February 2013, a vehicle bearing diplomatic plates
registered to the US Embassy got into an accident in
Islamabad, Pakistan involving two residents out of which
one was killed and the other survived. Murder charges
were laid under Section 320 of Pakistan Penal Code against
the driver of the vehicle who is a diplomat according to
[58]
Pakistani official.
On 18 March 2013, the Supreme Court of India restricted
Italian ambassador, Daniele Mancini, from leaving India for
[59]
breaching an undertaking given to the apex court.
Despite Italian and European Union protests regarding the
restrictions as contrary to the Vienna Convention on
Diplomatic Relations, the Supreme Court of India said it
would be unacceptable to argue diplomatic immunity after
voluntarily subjecting to court's jurisdiction. The Italian
envoy had invoked Article 32 of the Constitution of India
when filing an affidavit to the Supreme Court taking
responsibility for the return of the two Italian marines to
India after casting their votes in the March 2012 general
elections in Italy. The Indian Supreme Court opined that
the Italian ambassador had waived his diplomatic
immunity and could be charged for contempt. The two
marines are being tried in India for the murder of two
Indian fishermen off the coast of Kerala. (See 2012 Italian
Navy Marines shooting incident in the Laccadive Sea) The
Supreme Courts order restraining a serving ambassador
from leaving the country has already created a major
precedent. It cannot be excluded that Indian courts will,

under similar circumstances in future, interpret the

principle of diplomatic immunity circumstantially.
In July 2013, Joshua Walde, an American diplomat in
Nairobi, Kenya, crashed into a mini-bus killing a father of
[60]
three, and seriously injuring eight others. United States
embassy officials took the diplomat and his family out of
[60]
Kenya the following day. The other crash victims were
left with no financial assistance to pay for hospital bills.
The widow of the victim has not been contacted by the
driver or embassy officials. The United States government
is concerned about the impact the accident could have on
[60]
bilateral relations with Kenya. Walde was an
information management officer at the United States
[60]
embassy in Nairobi at the time of the crash. Walde gave
a statement to police, but was not detained due to his
[60]
diplomatic immunity. Kenyan police say the case
[60]
remains under investigation.
In October 2013, Russian diplomat Dmitri Borodin was
arrested in The Hague, Netherlands after neighbours
alerted the police. Police claim Borodin was taken to the
police station to protect his children (aged 2 and 4), as he
was alleged to have been drunk and violent towards them.
Police were in the area because Borodin's wife had lost
control over her car while also under influence, and had
[61]
rammed four parked cars near the diplomats' house.
Russia immediately demanded an apology from the Dutch
government for violating Borodin's diplomatic immunity.
The row came at a time of tension between Russia and the
Netherlands, after the Russian security services captured a
Greenpeace vessel sailing under the Dutch flag, Arctic
Sunrise, that was protesting against oil drilling in the
[62]
Prirazlomnoye field. On the 16th of October a Dutch
diplomat was beaten up in his house in Russia.

FIRST DIVISION
[G.R. No. 125865. January 28, 2000]
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF
THE PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development
Bank (ADB). Sometime in 1994, for allegedly uttering defamatory
words against fellow ADB worker Joyce Cabal, he was charged
before the Metropolitan Trial Court (MeTC) of Mandaluyong City
with two counts of grave oral defamation docketed as Criminal Cases
Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant
issued by the MeTC. After fixing petitioners bail at P2,400.00 per
criminal charge, the MeTC released him to the custody of the
Security Officer of ADB. The next day, the MeTC judge received an
"office of protocol" from the Department of Foreign Affairs (DFA)
stating that petitioner is covered by immunity from legal process
under Section 45 of the Agreement between the ADB and the
Philippine Government regarding the Headquarters of the ADB
(hereinafter Agreement) in the country. Based on the said protocol
communication that petitioner is immune from suit, the MeTC judge
without notice to the prosecution dismissed the two criminal cases.
The latter filed a motion for reconsideration which was opposed by
the DFA. When its motion was denied, the prosecution filed a
petition for certiorari and mandamus with the Regional Trial Court
(RTC) of Pasig City which set aside the MeTC rulings and ordered
the latter court to enforce the warrant of arrest it earlier issued. After
the motion for reconsideration was denied, petitioner elevated the
case to this Court via a petition for review arguing that he is covered
by immunity under the Agreement and that no preliminary
investigation was held before the criminal cases were filed in court.
The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any
immunity. The DFAs determination that a certain person is covered
by immunity is only preliminary which has no binding effect in
courts. In receiving ex-parte the DFAs advice and in motu proprio
dismissing the two criminal cases without notice to the prosecution,
the latters right to due process was violated. It should be noted that
due process is a right of the accused as much as it is of the
prosecution. The needed inquiry in what capacity petitioner was
acting at the time of the alleged utterances requires for its resolution
evidentiary basis that has yet to be presented at the proper time. 1 At
any rate, it has been ruled that the mere invocation of the immunity
clause does not ipso facto result in the dropping of the charges.2
Second, under Section 45 of the Agreement which
provides:
"Officers and staff of the Bank including for the
purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the
following privileges and immunities:
a.).......immunity from legal process
with respect to acts performed by them
in their official capacity except when
the Bank waives the immunity."
the immunity mentioned therein is not absolute, but subject to the
exception that the act was done in "official capacity." It is therefore
necessary to determine if petitioners case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the
chance to rebut the DFA protocol and it must be accorded the
opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the commission
of a crime, such as defamation, in the name of official duty. 3 The
imputation of theft is ultra vires and cannot be part of official
functions. It is well-settled principle of law that a public official may
be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice or in bad faith or beyond the
scope of his authority or jurisdiction.4 It appears that even the
governments chief legal counsel, the Solicitor General, does not
support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a
diplomatic agent, assuming petitioner is such, enjoys immunity from
criminal jurisdiction of the receiving state except in the case of an
action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving state outside his official
functions.5 As already mentioned above, the commission of a crime is
not part of official duty.
Finally, on the contention that there was no preliminary investigation
conducted, suffice it to say that preliminary investigation is not a

matter of right in cases cognizable by the MeTC such as the one at

bar.6 Being purely a statutory right, preliminary investigation may be
invoked only when specifically granted by law. 7 The rule on criminal
procedure is clear that no preliminary investigation is required in
cases falling within the jurisdiction of the MeTC.8 Besides, the
absence of preliminary investigation does not affect the courts
jurisdiction nor does it impair the validity of the information or
otherwise render it defective.9
WHEREFORE, the petition is DENIED.
SO ORDERED.

EN BANC

[G.R. No. 154705. June 26, 2003]

THE

REPUBLIC OF INDONESIA, HIS EXCELLENCY

AMBASSADOR SOERATMIN, and MINISTER
COUNSELLOR AZHARI KASIM, petitioners, vs.
JAMES VINZON, doing business under the name
and style of VINZON TRADE AND SERVICES,
respondent.
DECISION

AZCUNA, J:
This is a petition for review on certiorari to set aside the
Decision of the Court of Appeals dated May 30, 2002 and its
Resolution dated August 16, 2002, in CA-G.R. SP No. 66894
entitled The Republic of Indonesia, His Excellency
Ambassador Soeratmin and Minister Counselor Azhari Kasim
v. Hon. Cesar Santamaria, Presiding Judge, RTC Branch 145,
Makati City, and James Vinzon, doing business under the
name and style of Vinzon Trade and Services.
Petitioner, Republic of Indonesia, represented by its
Counsellor, Siti Partinah, entered into a Maintenance
Agreement in August 1995 with respondent James Vinzon,
sole proprietor of Vinzon Trade and Services.
The
Maintenance Agreement stated that respondent shall, for a
consideration, maintain specified equipment at the Embassy
Main Building, Embassy Annex Building and the Wisma Duta,
the official residence of petitioner Ambassador Soeratmin. The
equipment covered by the Maintenance Agreement are air
conditioning units, generator sets, electrical facilities, water
heaters, and water motor pumps. It is likewise stated therein
that the agreement shall be effective for a period of four years
and will renew itself automatically unless cancelled by either
party by giving thirty days prior written notice from the date of

expiry.

10

Petitioners claim that sometime prior to the date of

expiration of the said agreement, or before August 1999, they
informed respondent that the renewal of the agreement shall
be at the discretion of the incoming Chief of Administration,
Minister Counsellor Azhari Kasim, who was expected to arrive
in February 2000. When Minister Counsellor Kasim assumed
the position of Chief of Administration in March 2000, he
allegedly found respondents work and services unsatisfactory
and not in compliance with the standards set in the
Maintenance Agreement. Hence, the Indonesian Embassy
11
terminated the agreement in a letter dated August 31, 2000.
Petitioners claim, moreover, that they had earlier verbally
informed respondent of their decision to terminate the
agreement.
On the other hand, respondent claims that the aforesaid
termination was arbitrary and unlawful. Respondent cites
various circumstances which purportedly negated petitioners
alleged dissatisfaction over respondents services: (a) in July
2000, Minister Counsellor Kasim still requested respondent to
assign to the embassy an additional full-time worker to assist
one of his other workers; (b) in August 2000, Minister
Counsellor Kasim asked respondent to donate a prize, which
the latter did, on the occasion of the Indonesian Independence
Day golf tournament; and (c) in a letter dated August 22, 2000,
petitioner Ambassador Soeratmin thanked respondent for
sponsoring a prize and expressed his hope that the cordial
relations happily existing between them will continue to prosper
and be strengthened in the coming years.
Hence, on December 15, 2000, respondent filed a
12
complaint against petitioners docketed as Civil Case No.
18203 in the Regional Trial Court (RTC) of Makati, Branch 145.
On February 20, 2001, petitioners filed a Motion to Dismiss,
alleging that the Republic of Indonesia, as a foreign sovereign
State, has sovereign immunity from suit and cannot be sued as
a party-defendant in the Philippines. The said motion further
alleged that Ambassador Soeratmin and Minister Counsellor
Kasim are diplomatic agents as defined under the Vienna
Convention on Diplomatic Relations and therefore enjoy
13
diplomatic immunity.
In turn, respondent filed on March 20,
2001, an Opposition to the said motion alleging that the
Republic of Indonesia has expressly waived its immunity from
suit. He based this claim upon the following provision in the
Maintenance Agreement:
Any legal action arising out of this
Maintenance Agreement shall be settled according
to the laws of the Philippines and by the proper
court of Makati City, Philippines.
Respondents Opposition likewise alleged that Ambassador
Soeratmin and Minister Counsellor Kasim can be sued and
held liable in their private capacities for tortious acts done with
14
malice and bad faith.
On May 17, 2001, the trial court denied herein petitioners

Motion to Dismiss.
It likewise denied the Motion for
Reconsideration subsequently filed.
The trial courts denial of the Motion to Dismiss was
brought up to the Court of Appeals by herein petitioners in a
petition for certiorari and prohibition. Said petition, docketed as
CA-G.R. SP No. 66894, alleged that the trial court gravely
abused its discretion in ruling that the Republic of Indonesia
gave its consent to be sued and voluntarily submitted itself to
the laws and jurisdiction of Philippine courts and that
petitioners Ambassador Soeratmin and Minister Counsellor
Kasim waived their immunity from suit.
On May 30, 2002, the Court of Appeals rendered its
15
assailed decision denying the petition for lack of merit.
On
August 16, 2002, it denied herein petitioners motion for
16
reconsideration.
Hence, this petition.
In the case at bar, petitioners raise the sole issue of
whether or not the Court of Appeals erred in sustaining the trial
courts decision that petitioners have waived their immunity
from suit by using as its basis the abovementioned provision in
the Maintenance Agreement.
The petition is impressed with merit.
International law is founded largely upon the principles of
reciprocity, comity, independence, and equality of States which
were adopted as part of the law of our land under Article II,
17
Section 2 of the 1987 Constitution. The rule that a State may
not be sued without its consent is a necessary consequence of
18
the principles of independence and equality of States. As
19
enunciated in Sanders v. Veridiano II,
the practical
justification for the doctrine of sovereign immunity is that there
can be no legal right against the authority that makes the law
on which the right depends. In the case of foreign States, the
rule is derived from the principle of the sovereign equality of
States, as expressed in the maxim par in parem non habet
imperium. All states are sovereign equals and cannot assert
20
jurisdiction over one another. A contrary attitude would
21
unduly vex the peace of nations.
The rules of International Law, however, are neither
unyielding nor impervious to change. The increasing need of
sovereign States to enter into purely commercial activities
remotely connected with the discharge of their governmental
functions brought about a new concept of sovereign immunity.

This concept, the restrictive theory, holds that the immunity of

the sovereign is recognized only with regard to public acts or
acts jure imperii, but not with regard to private acts or acts jure
22
gestionis.
23

In United States v. Ruiz, for instance, we held that the

conduct of public bidding for the repair of a wharf at a United
States Naval Station is an act jure imperii. On the other hand,
we considered as an act jure gestionis the hiring of a cook in
the recreation center catering to American servicemen and the
24
general public at the John Hay Air Station in Baguio City, as
well as the bidding for the operation of barber shops in Clark
25
Air Base in Angeles City.
Apropos the present case, the mere entering into a
contract by a foreign State with a private party cannot be
construed as the ultimate test of whether or not it is an act jure
imperii or jure gestionis. Such act is only the start of the
inquiry. Is the foreign State engaged in the regular conduct of
a business? If the foreign State is not engaged regularly in a
business or commercial activity, and in this case it has not
been shown to be so engaged, the particular act or transaction
must then be tested by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an act jure
26
imperii.
Hence, the existence alone of a paragraph in a contract
stating that any legal action arising out of the agreement shall
be settled according to the laws of the Philippines and by a
specified court of the Philippines is not necessarily a waiver of
sovereign immunity from suit. The aforesaid provision contains
language not necessarily inconsistent with sovereign immunity.
On the other hand, such provision may also be meant to apply
where the sovereign party elects to sue in the local courts, or
otherwise waives its immunity by any subsequent act. The
applicability of Philippine laws must be deemed to include
Philippine laws in its totality, including the principle recognizing
sovereign immunity. Hence, the proper court may have no
proper action, by way of settling the case, except to dismiss it.
Submission by a foreign state to local jurisdiction must be
clear and unequivocal. It must be given explicitly or by
necessary implication. We find no such waiver in this case.
Respondent concedes that the establishment of a
diplomatic mission is a sovereign function. On the other hand,
he argues that the actual physical maintenance of the
premises of the diplomatic mission, such as the upkeep of its
furnishings and equipment, is no longer a sovereign function of
27
the State.
We disagree. There is no dispute that the establishment
of a diplomatic mission is an act jure imperii. A sovereign
State does not merely establish a diplomatic mission and leave

it at that; the establishment of a diplomatic mission

encompasses its maintenance and upkeep. Hence, the State
may enter into contracts with private entities to maintain the
premises, furnishings and equipment of the embassy and the
living quarters of its agents and officials. It is therefore clear
that petitioner Republic of Indonesia was acting in pursuit of a
sovereign activity when it entered into a contract with
respondent for the upkeep or maintenance of the air
conditioning units, generator sets, electrical facilities, water
heaters, and water motor pumps of the Indonesian Embassy
and the official residence of the Indonesian ambassador.
The Solicitor General, in his Comment, submits the view
that, the Maintenance Agreement was entered into by the
Republic of Indonesia in the discharge of its governmental
functions. In such a case, it cannot be deemed to have waived
its immunity from suit. As to the paragraph in the agreement
relied upon by respondent, the Solicitor General states that it
was not a waiver of their immunity from suit but a mere
stipulation that in the event they do waive their immunity,
Philippine laws shall govern the resolution of any legal action
arising out of the agreement and the proper court in Makati
28
City shall be the agreed venue thereof.
On the matter of whether or not petitioners Ambassador
Soeratmin and Minister Counsellor Kasim may be sued herein
in their private capacities, Article 31 of the Vienna Convention
on Diplomatic Relations provides:
xxx
1. A diplomatic agent shall enjoy immunity
from the criminal jurisidiction of the receiving State.
He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
(a) a real action relating to private
immovable property situated in the
territory of the receiving State, unless he
holds it on behalf of the sending State for
the purposes of the mission;
(b) an action relating to succession
in which the diplomatic agent is involved
as executor, administrator, heir or
legatee as a private person and not on
behalf of the sending State;
(c) an action relating to any
professional or commercial activity
exercised by the diplomatic agent in the
receiving State outside his official
functions.
xxx
The act of petitioners Ambassador Soeratmin and
Minister Counsellor Kasim in terminating the Maintenance
Agreement is not covered by the exceptions provided in the
abovementioned provision.
The Solicitor General believes that said act may fall under
29
subparagraph (c) thereof, but said provision clearly applies
only to a situation where the diplomatic agent engages in any
professional or commercial activity outside official functions,
which is not the case herein.
WHEREFORE, the petition is hereby GRANTED. The
decision and resolution of the Court of Appeals in CA G.R. SP
No. 66894 are
REVERSED and SET ASIDE and the
complaint in Civil Case No. 18203 against petitioners is
DISMISSED.
No costs.
SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban,

Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Corona, Carpio-Morales, and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on leave.