SCOPE OF DIPLOMATIC FAMILY IN VIENNA CONVENTION

ON DIPLOMATIC RELATIONS
Diplomatik likiler Hakknda Viyana Konvansiyonuna Gre Diplomatik
Ailenin Kapsam

Mehmet YAVUZ*

ABSTRACT
Principles as regards diplomatic relations virtually go back to appearance of
international law. However, modern principles with respect the immunities of
diplomatic representatives emerged following recognition of sovereignty and
equality of states and rather as a result of requirement in international arena.
First of all, diplomatic immunity provides diplomatic agents of sending state for
immunity from the jurisdiction of host state. In addition, they are exempt from tax
and their residences cannot be searched as well as their private papers cannot be
seized or inspected. The Vienna Convention on Diplomatic Relations is of great
importance on the issue.
In Article 37/1 of the Convention, it is stipulated that the family members of a
diplomatic agent forming part of his household shall, if they are not nationals of the
receiving state, enjoy the privileges and immunities specified in Articles 29 to 36.
However, the Convention includes no definition of the family members. Therefore,
there is neither uniform legislation nor practice even within the States party to the
Convention regarding which family members will exercise such immunities.
Although there is an agreement on the inclusion of spouses and minor children as
family members, there are various practice samples on recognition of children over
18 and other relatives as members of family. Taking into consideration the existence
of countries, like the Netherlands and Belgium, permitting same-sex couples the
issue becomes more problematic.
In the Convention, as the scope of family is not defined due to lack of consensus
during travaux prparatoire it is now to be determined according to customary law,
bilateral treaties, or principle of reciprocity.
Keywords: Diplomatic immunity, diplomatic family member, the Vienna
Convention on Diplomatic Relations.
ZET
Diplomatik ilikilere dair kurallarn ortaya k neredeyse uluslararas hukukun
tarihi kadar eskidir. Ne var ki, diplomatik temsilcilerin muafiyetlerine dair modern
gelimeler uluslararas sahada devletlerin hkmranlnn ve eitliklerinin kabul
edilmeye balamasyla ortaya kmtr.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

Diplomatik muafiyetler, gnderen devletin temsilcisine en bata kabul eden devletin

yarg sistemine tabi olmama ayrcal vermektedir. Bunun yan sra vergi muafiyeti,
konut ve eyalarnn aranamamas gibi birok muafiyet sz konusudur. Bu konuyu
dzenleyen en nemli uluslararas belge ise, 1961 tarihli Diplomatik likiler
Hakknda Viyana Konvansiyonudur.
Viyana Konvansiyonunun 37. maddesi diplomatn hane halkn oluturan aile
fertlerinin de, kabul eden devletin vatanda olmamalar kouluyla, diplomatlara
tannan haklarn biroundan aynen yararlanacaklarn belirtmitir. Ancak, hane
halk ve aile ferdi kavramlarna ilikin bir aklama yer almamaktadr. Bu nedenle,
Konvansiyona taraf olan lkelerde bile hangi aile fertlerinin bu muafiyetlerden
yararlanabileceine dair yeknesak bir mevzuat ve uygulama mevcut deildir. E ve
reit olmayan ocuklar zerinde genel olarak tartma olmamakla birlikte, reit
ocuklar ve dier akrabalardan hangilerinin aile ferdi saylabileceklerine dair farkl
uygulama rnekleri bulunmaktadr. Ayn cins elerden mteekkil evliliklere cevaz
veren (Belika gibi) lkeler de nazara alndnda konu biraz daha karmak bir hale
brnmektedir.
Konvansiyonda, hazrlk almalar srasndaki uzla eksikliinden tr aile
fertlerinin kapsam belirlenemediinden mesele teaml hukuku, ikili szlemeler ve
mtekabiliyet ilkesi erevesinde zme kavuturulmaktadr.
Anahtar Kelimeler: Diplomatik muafiyet, diplomatik aile ferdi, Diplomatik
likiler Hakknda Viyana Konvansiyonu.

164 ***
INTRODUCTION
Principles with respect to diplomatic relations date back to beginning of
international law. In history, once a few kingdoms or states began to
enter into relations, they fostered special principles on how to treat
others representatives. 1
Diplomatic immunity, which was upheld by International Court of Justice
(ICJ) as a traditional fundamental principle of customary international
law 2, came into existence to protect agents of foreign states whilst
serving in host states. Many states in history, such as Greeks, Chinese,
and Europeans etc. applied diplomatic immunity rules. 3

* Judge at Ministry of Justice, DG for EU Affairs. LLM candidate at University of Kent,

International Law with International Relations.
1 Malcolm N. Shaw, International Law, 6th edn, Cambridge, 2008, p. 750-1.
2 See United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1979 ICJ 7, 19 (stating
that diplomatic immunity is a must for Inter-state relations): in B. Sen, A Diplomats Handbook
of International Law and Practice, 1965, p. 3-7.
3 E. Satow, Satows Guide to Diplomatic Practice, p. 106 (Lord Gore-Booth 5th edition 1979).

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

Modern privileges and immunities as regards diplomatic representatives

developed both as a result of sovereignty and equality of states and as a
need in international field. Like mankind states or international
organisations, since they are made up of persons or people, must
negotiate with each other. 4 The negotiation and consultation between
states have been conducted by special representatives and ambassadors
throughout the history.
One of the basic indicators related to communication of states is to
exchange permanent diplomatic missions. The weak position of a
diplomatic mission, which settled down in the centre of a sovereign state,
is balanced via diplomatic immunities granted to members of the
mission. 5 For that reason, international system realized the necessity to
protect the diplomatic staff in order to enable them conduct their mission
efficiently. 6
This study deals with two points of diplomatic immunity according to
the Vienna Convention on Diplomatic Relations: First, which
immunities and privileges were granted to diplomatic agents? Second,
Article 37 (1) of the Convention provides for the same privileges to
members of family of diplomatic agent forming part of his household.
However, scope of the family members are not defined in the article. So
165
which family members shall enjoy such privileges is a controversial
issue? The concepts family and household are vague and therefore
need to be clarified.
I. THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS
The diplomatic immunity provides for the representatives of foreign
states to be immune from a range of punishments, such as traffic fines or
even more severe offences like murder. Why do they benefit from
inviolability? Generally speaking, the immunity rules are based on three
theories which are the theory of personal representation, the theory of
extraterritoriality, and the theory of functional necessity. 7

4 Ibid p.751.
5 Chanaka Wickremasinghe, Immunities Enjoyed by Officials of States and International
Organizations edited by Malcolm D. Evans, International Law, 3rd edn, Oxford, 2010, p.384.
6 JC Barker, The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil? (Aldershot:
Dartmouth), 1996, pp 32-55.
7 Mitchell S. Ross, Rethinking Diplomatic Immunity: A Review of Remedial Approaches to
Address the Abuses of Diplomatic Privileges and Immunities American University Journal of
International Law.&Policy, Volume 4:173, p. 177.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

The first theory, which was created to justify the diplomatic immunity, is
the theory of personal representation. Pursuant to this theory, it is claimed
that diplomatic persons represent the president of sending state. The
theory suggests that same immunities the sending state enjoys should be
granted to its diplomats. 8 In this context, an insult to the diplomat is
perceived as an insult to the sending state since he is acting on its behalf. 9
The theory of extraterritoriality explains the diplomatic immunity on the
basis of lack of a local residence for diplomats in receiving state. 10 In
other words, the diplomat in the receiving state is presumed as if he
legally resides on the land of his country although he is in a foreign
state. 11
The third one, the theory of functional necessity, claims that foreigner
envoy is immune from the jurisdiction of the receiving state, since this
would hinder his diplomatic actions. 12 The immunity does not, however,
protects the diplomat as a person but grants him an opportunity to
efficiently focus on his diplomatic mission. 13
The striking feature of diplomatic law, among the others, is the
exemption from the receiving states jurisdiction. In this respect it should
be noted that the diplomatic immunity has two dimensions in
166 international law. 14
The first dimension of immunity from jurisdiction is ratione personae
and the second one is ratione materiae.
The first sort of immunity ratione personae provides an absolute but
temporary protection for office-holders by virtue of their offices during
the term of their office. 15 These immunities generally include both
private and official functions of members of certain categories of
officials. 16

8 Wickremasinghe, ibid, p. 382.

9 C. Wilson, Diplomatic Privileges and Immunities, the University of Arizona Press, Tucson,
(1967) p. 3.
10 Wilson, ibid, p. 5.
11 Ibid.
12 Ibid., p. 17
13 M. Ogdon, Juridical Basis of Diplomatic Immunity: A Study in the Origin, Growth and Purpose of
the Law, John Byrne& Co.: Washington D.C. (1936), p. 220.
14 Wickremasinghe, ibid, p. 382
15 Steffen Wirth, Immunity for Core Crimes? The ICJs Judgement in the Congo v. Belgium Case,
European Journal of International Law (2002), Vol. 13 No. 4, p. 883.
16 Wickremasinghe, ibid, p. 382.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

However, the second type of immunity ratione materiae shields each

incumbent or former state official but merely covers their official
conduct. 17 This immunity is determined according to the qualification of
acts at issue rather than particular duty of the official who carried them
out. Although they contain a narrower range of acts than immunities
ratione persona, they include almost all acts conducted by all office-
holders. 18
Finally, despite the fact that diplomatic immunity and state immunity are
terms that overlap, they must not be confused. Since diplomatic
personnel are state officials as well they are shielded both by diplomatic
and state immunity. This (ratione materiae) protection is particularly
necessary with respect to third states that are not, in principle, bound by
the regulations of diplomatic immunity. 19
The constitution of an international convention on diplomatic relations
was a result of a necessity in order to codify the customary international
law with regard to diplomatic immunity 20. Diplomatic law, which is one
of the developed branches of law system with its ancient roots, consists
of many different sources. These contain the Vienna Convention on
Diplomatic Relations 1961 (The Convention), the Vienna Convention on
Consular Relations 1961, and the United Nations Convention on Special
167
Missions 1969. 21 In addition, the bilateral treaties, which entitle some
specific treatment models to the states, have an important role in
establishment of diplomatic intercourses.
The Convention was adopted at the United Nations Conference on
Diplomatic Intercourse and Immunities in Vienna in 1961. The
Conference constituted the Convention by working on Articles drafted by
the International Law Commission. 22
The Convention, which entered into force in 1964, underlines the
significance of diplomatic immunities whilst conducting international
relations. 23 This treaty not only codified the existing rules but also set up

17 Wirth, ibid.
18 Wickremasinghe, ibid, 383.
19 Wirth, ibid, pp. 883-4.
20 M L Benedek, The Diplomatic Relations Act: The United States Protects Its Own, 5 Brooklyn
Journal of the International Law, 379, 385-87 (1979) (discussing the background and
provisions of the Vienna Convention on Diplomatic Relations.)
21 Evans, ibid, p. 381.
22 David Harris, Cases and Materials of International Law, 7th ed, (2010), p. 301.
23 Shaw, ibid, 752; Iranian Hostages Case outlines the importance of VCDR, ICJ Reports, 1980, pp.
330-430.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

new ones. 24 For instance, the International Court of Justice (ICJ) has
stressed that the VCDR remains applicable even though there is an armed
conflict between the states in question. 25
The fundamental value of the Convention, which was broadly followed
by the parties, lies in its clearness it adds to the functioning of diplomatic
intercourses between states 26.
A. Diplomatic Immunities Specified in the Convention
The provisions of the Convention related to core of this study are laid
down in Articles 29 to 37. In Article 37/1, it is stipulated that the family
members of a diplomatic agent forming part of his household shall, if
they are not nationals of the receiving state, enjoy the privileges and
immunities specified in Articles 29 to 36.
First of all, the so-called privileges and immunities should be defined.
Then the concept of members of the family of a diplomatic agent
should be clarified.
Article 29 of the Convention provides inviolability for diplomatic
agents. 27 It connotes that he may neither be arrested nor detected. 28 This
is an ancient principle of diplomatic law. 29 The receiving state is obliged
168 to take all necessary measures to supply inviolability. The Convention
clearly declares this principle in Article 29. 30
Notwithstanding that principle the most dramatic breach of diplomatic
immunity took place in Iran, in 1979. Hundreds of demonstrators entered
into the US Embassy by force to protest the admission of deposed Shah
of Iran into US. Iran security forces remained reluctant to quell the clash.
In that event, demonstrators kept 52 US citizens, 50 of which were
diplomatic staff. 31 The ICJ ruled that attitude of Iranian government

24 See the Iranian Hostages Case, ICJ Reports, 1980, pp. 3, 24.
25 Democratic Republic of Congo v. Uganda, ICJ Reports, 2005 in Shaw, ibid, , pp. 168,274.
26 Monica Lozancic, Diplomatic and Consular Immunities from National Jurisdiction in Criminal
Cases-Practice From Swedish, Dutch and Danish Ministries of Foreign Affairs- Master Thesis,
Faculty of Law University of Lund, (2009), p. 26.
27 Article 1 (e) of the Convention defines the diplomatic agent as the head of the mission or a
member of the diplomatic staff of the mission.
28 Shaw, ibid, p 764.
29 See E. Denza, Diplomatic Law, 3rd edn, Oxford, 2008.
30 Yu-Long Ling, A Comparative Study of the Privileges and Immunities of United Nations,
Washington and Lee Law Review Vol. XXXIII, Winter 1976, Number 1, p. 135.
31 Harris, ibid, p. 312-4.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

which caused the detention of a huge number of diplomatic and consular

staff was a blatant infringement of Article 29 of the Convention. 32
In addition, the inviolability is also extended to diplomatic agents
residence. 33 Whereas Article 30 (1) protects the private residence of the
diplomatic agent, Article 30 (2) provides for the inviolability of his
private papers, correspondence and property. 34 Private residence that is
apart from the premises of mission should be broadly interpreted. The
garden and annexes, if there are, should be included in the concept of the
residence. Consequently, no search can be carried out in those places
since they are integral part of residence.
Moreover, hand private papers of diplomatic agent cannot be seized or
inspected regardless of place they are in. Likewise, no search can be
conducted on their vehicles even though a suspicion arises. In the UK
practice, however, towing away of a diplomats car that is causing a
hurdle is perceived compatible with the Convention. But wheel-clamping
has been relinquished as it is a serious sanction incompatible with Article
30. 35
The basic principle of customary law reflected in Article 31 (1) specifies
that diplomatic agents are immune from criminal jurisdiction of the
receiving state. 36 Although it is an ancient rule of diplomatic law, it has 169
been disputable 37 how a suspect cannot be prosecuted even though he
committed in a severe offence. Yet, they are subject to legal system of the
sending state.
Besides criminal immunity, they are generally immune from local civil
and administrative jurisdiction as well. Their family members enjoy the
same privileges as the diplomats. 38 However, there are three exceptional
cases in which the diplomatic agents are subject to the civil (and
administrative) jurisdiction of the receiving state.
A diplomatic agent may be a part of a lawsuit in the case of: 39

32 Shaw, ibid, 765; ICJ Reports 1980, pp 3, 32, 35-7.

33 Ling, ibid, p. 135.
34 Shaw, ibid, p. 765.
35 Harris, ibid, fn 212, p. 298.
36 Shaw, ibid, 766.
37 Ling, ibid, p. 129.
38 See Articles 31(1) and 37 (1) of the Convention.
39Article 31 (1).

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

a) a real action is relating to private immovable property situated in the

territory of the receiving state, unless he holds it 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 receiving state.
By Article 31(2), a diplomat cannot be forced to give testimony as a
witness. Even if he is the single witness in a case he is not, unless he
wants, obliged to give evidence. 40
Pursuant to Article 31 (3), no measures of execution may be taken against
diplomats. However, in afore-mentioned exceptional cases under Article
31 (1) a, b and c, some measures may be taken against them. Shaw
emphasises that the so-called measures applicable in certain conditions
must be conducted without infringing the inviolability of person or of his
residence. 41
Diplomatic agents are generally exempt from mandatory social or
170 military services, from all taxes (indirect taxes excluded) and duties
according to current practice. 42 In this context, a diplomat cannot be
taken under military service in the receiving state. Likewise, states cannot
levy personal or real, regional or municipal taxes on diplomatic
personnel.
Finally, Article 36 of the Convention also provides for diplomatic staff
and member of their household exemption from charges on baggage on
first arrival. 43 In addition, personal baggage of diplomats cannot be
inspected unless there are reasonable causes that it includes materials,
goods, or articles not exempted by Article 36 (1). If competent officials
suspect the baggage and decide to open it, inspections can merely be
done in the presence of the diplomat or his authorised representative. 44

40 Shaw, ibid, p. 767.

41 Ibid.
42 Ling, ibid, p. 141; Article 34 and 35 of the Convention.
43 Ling, ibid, p. 149.
44 Article 36 (2).

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

B. Remedies in Case of Abuse

Above-mentioned privileges and immunities entitle diplomatic agents
and their family members a considerable immunity from the legal system
of the receiving state. Nevertheless, the convention tries to establish a
balance by setting tangible remedies in case of abuse of the immunities. 45
The diplomats, first of all, are expected to obey the domestic legislation
of the receiving state. Some writers find this provision paradoxical and
superfluous in terms of absence of any enforcement provision. 46
Another mechanism stipulated by Article 32 is waiver of immunity.
This power, that is rarely employed, is at discretion of the sending state.
However, Zambia waived the immunity of its representative working at
the London Embassy upon a suspicion that he committed a drug offence,
in 1985.47
The waiver must be express. 48 Once the immunities of a diplomat are
waived, he can be prosecuted under rules of the receiving state. On the
other hand, although the sending state might not choose to waive the
immunity of its diplomatic representatives, this is not an obstacle for the
sending state to prosecute the alleged offence. 49
The most fundamental procedural sanction that the receiving state 171
entitled by Article 9 of the Convention is to declare the person concerned
persona non grata. Article 9 of the Convention explicitly ensures each
receiving state to demand, at any time without expressing any reasoning,
the recall of a diplomatic staff assigned in its territory. 50 In some
circumstances, the receiving state may declare a candidate diplomat
persona non grata before his appointment. Should a diplomatic agent
often violate the rules or commit in a scandalous act, those are reasonable
enough for the receiving state to ask for his recall. 51 Briefly, the host state
is allowed to refuse diplomats or individuals of their families before

45 Evans, ibid, p. 388.

46 Ross, ibid, p. 182.
47 G. V. McClanahan, Diplomatic Immunity: Principles, Practices, Problems, (1989) London,
pp.156-7;see (Denza, ibid, p. 345) for more examples of waivers of immunity.
48 See Public prosecutor v. Orhan Olmez, 87 ILR, p.12.
49 Ross, ibid, 190.
50 Ling, ibid, 125.
51 M. Hill, Immunities and Privileges of Officials of the League of Nations (1945) pp. 258-63.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

assignment and to expel them whilst they are functioning owing to their
misdemeanours. 52
When its diplomat declared persona non grata, the sending state has two
options: either to order him to return to the country or end his profession
at the mission. 53 What if the sending state does not do so? This time the
host state may decline to recognize the diplomat as a member of the
mission of the sending state. In that case, he becomes subject to
jurisdiction of the host country. 54
The last issue to be clarified with regard to immunities and privileges is
when they commence and terminate. This is important to determine
duration of protection for those who enjoy such privileges. 55
The diplomatic protection begins when a diplomatic agent enters the
territory of the receiving state. However, if he is already in the receiving
state, the immunities commence after his assignment is notified to the
Ministry of Foreign Affairs of the host state. Those privileges continue to
be in effect during the whole term of his office. 56
Further, Article 39 (2) gives a reasonable time to the ambassadors to
finish up their affairs before leave the host country. Moreover, diplomats
continue to be inviolable even in case of an expulsion. 57
172
C. Definition of the Member of Diplomatic Family
Article 37 (1) provides that the members of the family of a diplomatic
agent forming part of his household shall enjoy the privileges and
immunities stipulated in Articles 29 to 36 as long as they are not
nationals of the receiving state. 58 The logic behind this arrangement is to
ensure complete independence for diplomats and ability to work without
harassment. 59 It is stated by International Law Commission (ILC) that
unless the members of a diplomatic family enjoyed immunity, pressure

52 Maria Moutzouris, Sending and Receiving: Immunity Sought By Diplomats Committing

Criminal Offences , thesis of masters, Rhodes University, p. 108. www.eprints.ru.ac.za Accessed
15.12.2012.
53 Ibid.
54 Ibid.
55 Moutzouris, ibid, p.114.
56 Satow, ibid, p. 129.
57 R. G. Jones, Termination of Diplomatic Immunity (1948) 25 British Yearbook of International
Law, pp. 262, 274.
58 Shaw, ibid, p. 767.
59 Denza, (20008), pp. 393-4.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

could be brought to bear upon the diplomatic agent through his

family. 60
When the provision is literally interpreted, it is quite clear that such
immunities the diplomatic agent enjoys are extended to his family
members. However, two concepts, members of the family and
forming part of the household specified in Article 37 (1) caused
multifarious definitions.61 Indeed, meaning of the family may vary in
each society. Most of people may simply imagine the family as a group
consisting of two parents and their children living together as a unit. 62 Is
it really like that? In addition, the term household means that those who
dwell under same roof and compose a family. 63 Moreover, it is a fact
that the form of family has evolved much compared to traditional form of
families. In the past, grandparents and grandchildren were virtually
inseparable part of the family. Today, such big families almost
disappeared. Furthermore, same-sex couples usually without children
constitute new types of families. In this respect, defining the scope of the
family and household is of great significance.
There had always been discussions regarding Article on each preparatory
phase of the Convention. The draft text, which was prepared to be
submitted to the General Assembly and adopted on the tenth session of
173
ILC, could have been created after heated debates. It should also be noted
not to cause confusion that Article 36 of the text corresponds with Article
37 of the Convention.
As regards Article 36, there was no agreement on which members of the
diplomatic staff should enjoy privileges and immunities on the one hand
and the scope of family members had always been disputable on the
other. 64

60 Quoted in: Yearbook of the International Law Commission, (YBILC), vol. I (1958), p. 162.
61 Robert A. Wilson, Diplomatic Immunity from Criminal Jurisdiction: Essential to Effective
International Relations, 7 Loyola of Los Angeles International and Comparative Law Review
113 (1984), p. 130.
62 http://oxforddictionaries.com/definition. Accessed 24.12.2012.
63 It also means: a social unit composed of those living under the same roof: http://meriam-
webster.com. Accessed 24.12.2012.
64 For the entire Commentary see: YBILC, 1958, vol II, pp. 101-2. The relevant paragraphs of the
Commentary as regards the draft Article are as follows:
(2) It is the general practice to accord to members of the diplomatic staff of a mission the same
privileges and immunities as are enjoyed by heads of mission, and it is not disputed that this is
a rule of international law. But beyond this there is no uniformity in the practice of States in
deciding which members of the staff of a mission shall enjoy privileges and immunities. Some

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

The discussions in footnote 64 regarding the Article in question can be

collected in two main points: (i) should administrative and technical staff
be entitled to benefit such immunities?, (ii) should administrative and
technical staff enjoy complete immunity and which family members of
those will also enjoy the same privileges?
Moreover, the Commission not only abstained from determining criteria
for members of the family but also determining an age limit for children.
Nevertheless, it emphasised that spouse and children under age of a
diplomatic person are, at least, accepted as members of the family.
Besides, other persons may claim privileges insofar as they form part of
the household of the diplomatic agent. Furthermore, the Commission
decided by majority not to grant privileges and immunities for private
servants as of right. In the end, the Commission incorporated
administrative and technical staff into Article 36 of the text as well as
diplomatic agents. However, it neither defined the concept of family nor
set forth comprehensive criteria to determine the scope of it.
Thereafter, the draft Articles were discussed at the United Nations
Conference on Diplomatic Intercourse and Immunities (the
Conference).65 The similar problem appeared on Article 36, as
confronted in the sessions held by ILC, was about which persons should
174
enjoy such immunities. The parties fully agreed on granting immunities
to family of diplomatic agents. However, more difficult one to reach a

States include members of the administrative and technical staff among the beneficiaries, and
some even include members of the service staff....
(4) In view of the differences in State practice, the Commission had to choose between two
courses: either to work on the principle of a bare minimum, and stipulate that any additional
rights to be accorded should be decided by bilateral agreement; or to try to establish a general
and uniform rule based on what would appear to be necessary and reasonable.
(11)In the case of diplomatic agents and the administrative and, technical staff, who enjoy full
privileges and immunities, the Commission has followed current practice by proposing that
the members of their families should also enjoy such privileges and immunities, provided that
they form part of their respective households and are not nationals of the receiving State. The
Commission did not feel it desirable to go farther and lay down a criterion for determining who
should be regarded as a member of the family, nor did it desire to fix an age limit for children.
The spouse and children under age, at least, are universally recognized as members of the
family, but in some cases other relatives may also be regarded as qualifying as "members of the
family" if they are part of the household. In making it a condition that a member of the family
wishing to claim privileges and immunities must form part of the household, the Commission
intended to make it clear that close ties or special circumstances are necessary qualifications.
Such special circumstances might exist where a relative kept house for an ambassador,
although she was not closely related to him; or where a distant relative had lived with the
family for many years, so as, in effect, to become a part of it.
Quoted in: YBILC, 1958, vol II, pp. 101-2.
65 Held in Vienna, on 2 March-14 April 1961.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

conclusion was whether to extend those immunities to administrative and

technical staffs family. 66
At the Conference, representatives of the states declared some proposals
or amendments with respect to ambiguous terms members of family
and household. For instance, representative of the United States
proposed that a new sub-paragraph defining member of a family should
be added. The age of children as regards under age should be left to
local law. The standing of a student, who had reached majority but
wholly or partly dependent on his family, was explicitly stated in the
definition. Handicapped children, adult single daughters not employed,
and other dependent relatives acting as hostess would be determined by
sending and receiving states. 67
However, Mr. Krishna Rao, Indian representative, said that there was
no need to define family since the relevant Articles provided that only
members of the family forming part of the household. The commissions
attitude was adequate not to lay down an explicit criterion for family
members. The composition of family varied from country to country...
The adoption of the US definition, which would require a bilateral
agreement, would mean that a diplomat may have to wait up until
conclusion of negotiations before take with him the family members who
175
he thought as part of the household. 68
In contrary to Indias opinion, Viet-Nams representative stated that
Indian amendment was too narrow restricting the family to members of
the household, and thus excluding, for instance a minor student at
boarding school situated outside host state. He approved the definition of
US requiring the consent of the receiving state to include family of
persons with the exception of the spouse, minor children, and unmarried
children who were students. He, however, suggested that the family be
limited to persons morally or physically dependent on the member of the
mission. 69
More importantly, Mexico suggested a concrete definition that reads:
Members of the family are the members economically dependent on a

66 United Nations Conference on Diplomatic Intercourse and Immunities, Vienna 2 March-14 April
1961, Official Records, Volume I: Summary Records of Plenary Meetings and of Meetings of the
Committee of the Whole, Geneva-1962 (Official Records), p.31.
67 Mr. Cameron, (United States of America), Quoted in: Ibid, p. 72.
68 Quoted in: Ibid, p. 74-5.
69 (Mr. Ngo-Dinh-Luyen), quoted in: ibid, p. 73-4.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

member of the mission and the members who form part of his
household. 70
Mr. Vallat from the United Kingdom proposed to stay loyal to the text
drafted by ILC. He also added that ...several suggested definitions were
hardly likely to foster Article. 71
Eventually, following the discussions each Article was voted at the
Conference and the current form of the Convention was adopted. It is
obvious that it was difficult to reach a conclusion on those ambiguous
terms. It is now better understood, when the discussions are regarded,
why a definition of family does not exist in Article 37 of the Convention.
II. SOME PRACTICE SAMPLES
A. United States
The Diplomatic Relations Acts of 1978 72 provided for harmonisation of
the United States diplomatic immunity law with the Vienna Convention
by abolishing the 1790 Act. 73 Pursuant to the Act, the notion family
members form part of his household is more specific than the
Convention: The wife of a diplomatic agent, his minor children, and
perhaps his children that are full-time college students or who are totally
176 dependent on him, are entitled to diplomatic immunity. Other cases, e.g.
unmarried adult daughters, dependent parents, and sisters acting as
official hostesses, are decided on the basis of the facts in particular
situation and the practice in the receiving state. 74
B. Sweden
There is no explicit definition with respect to family member in
Sweden. However, spouses (including same-sex couples) and minor
children forming part of household are accepted as family member. 75
Children are accepted as family member till they reach their 19 although
the age of majority is 18. However, children aged 19-23 may be deemed
part of household insofar as they are a higher education student. On the

70 (Mr Ojeda), quoted in: Ibid, p. 77.

71 Quoted in: Ibid, p. 226.
72 Diplomatic relations Act, Pub. L. No. 95-393, 92 Stat. 808 (1978).
73 Sen, ibid, p. 83-91.
74 Quoted in: M. Whiteman, Digest of International Law 260 (1963) in: Wilson, ibid, p. 130.
75 Lozancic, ibid, p. 71-2.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

other hand, other persons like diplomats dependent parents may be

qualified as a member of family. 76
Finally, those who are not registered at the Protocol Department would
not enjoy the immunities even if they would deem as a member of
family. 77
C. Denmark
The spouse or partner (same-sex partnership recognized) and children
under 21 year-old are always accepted as part of the household. Other
family members, who are individually evaluated, may be included as part
of household if they are dependent upon the diplomat. Nevertheless,
some other reasons may also be admitted out of dependency. 78
D. The Netherlands
In general, the spouse/partner (also same sex partner) and under age
children who are single are assessed under the notion of family member.
Minority ceases at the age 18 thus there is a distinction between minors
and children over 18 years old. The parents, whose children are 18 or
more, have to confirm each year that their child is unmarried and
dependent on them. However, if a child at the age of 18-23 is enrolled at
a full-time education in The Netherlands, such a confirmation is not 177
essential but the enrolment must be proved. Even if the children do not
live under the same roof with the parents because of their studies, they
are yet considered as part of household. For the children aged between
18-23 but not students, a paper, signed by both the embassy and his
employer, is required stating that he is unmarried and materially
dependent on his parents. In addition, a child aged 23-27 may be
registered as a family member insofar as enrolled at a full-time study.
However, a child over 28 hardly ever could be considered as member of
family. 79When it comes to persons other than children, The Netherlands
does not accept mothers or uncles/aunts as a family member. Yet some
exceptions are provided in certain circumstances. 80

76 Ibid, p.72.
77 Ibid.
78 Ibid, p.87.
79 Ibid, pp. 80-1.
80 Ibid, p. 81; Fore more information see also: Protocol Guide for Diplomatic Missions and
Consular Posts, Protokol Department of Ministry of Foreign Affairs (March 2012), pp. 17-20.
http//www.government.nl. accessed on 24.12.2012.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

E. Iceland
Iceland recognises spouses or partners and children under 21 years old as
members of family forming part of household. Besides, children until age
of 23 can be considered so only if they are unmarried and full-time
students. 81
On the other hand, other relatives may exceptionally be recognised if
they are resident with and economically dependent on the member of the
mission. Likewise, in certain cases, dependant parents who are dwelling
with the member of the mission may also be accepted as part of the
household. Yet each application is assessed on its own merits. 82
F. Belgium
In Belgium, the term spouses is employed for two people joined in a
couple by marriage. People having the same sex are allowed to get
married. However, polygamous marriage is regarded to be incompatible
with the public policy and hence not recognised as legal marriage. 83
In parallel to the Vienna convention, the spouse must meet three
conditions, namely; a) living together with the member of the mission,
b) being dependent upon the member of the mission,
178
c) not being gainfully employed. 84
It must be underlined that having a diplomatic or service passport of the
sending state does not automatically provide a privileged status. 85
As of children (or possibly stepchildren), they can obtain special identity
cards if they meet the following conditions:
a) to be single,
b) to be fully dependent upon the parent,
c) to be registered in an educational establishment in Belgium,

81 Diplomatic Handbook, Protocol Department of Ministry for Foreign Affairs, Reykjavik, (March
2010), p.7. http://www.mfa.is/ Accessed 25.12.2012
82 Ibid.
83 Circular Note, The Privileged Status of the Spouses and Unmarried Legal Partners of the Staff
Members of Diplomatic Mission, (16 May 2008), p. 2. http://diplomatie.belgium.be/en.
Accessed 25.12.2012.
84 Ibid, p. 3.
85 Ibid.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

d) to have same family name with the parent (if different, a certified copy
of birth certificate must be submitted),
e) to hold the same nationality with the parent (if not, a legal document
confirming that the sending state requests the same privileged status as
that of the parent at the mission). 86
The identity cards of children are valid, depending on the case, for five
years or up until the age of 25. Moreover, adopted children or children
under the guardianship of the parent may be considered to be a member
of family as long as they submit the required documents. However, if the
children who are Belgian (even if they have dual nationality), who are
permanent residents in Belgium, or who are studying abroad cannot
obtain special identity cards. Likewise, married children or grandchildren
of a member of the mission are assessed under the same category. 87
CONCLUSION
The diplomatic relations goes back to very beginning of the emergence of
international law. The Vienna Convention on Diplomatic Relations is of
great importance since it codified the diplomatic principles conducted up
until the date of its conclusion and thus filled a gap thereof.
Article 37 of the Convention refers to persons who shall be entitled to 179
exercise immunities and privileges as if they are diplomatic agents. They
are the members of family of the diplomats forming part of their
household. The rationale behind such privileges is to ensure diplomatic
agents function effectively without any harassment.
It should be noted that the immunities they are granted are limited to the
ones stated in Articles 29 to 36 which comprise of personal inviolability,
inviolability of residence, inviolability of private papers, and exemption
of taxes. Undoubtedly, the most important one is the immunity from the
jurisdiction of the receiving state.
At this point, it is so important to determine framework of the terms
family member and household since the immunities they enjoy are so
sensitive and significant both in terms of sending state and hot state.
Unfortunately, it is not so easy to determine the scope of the terms as
they are not defined in the Convention and vary from society to society.

86 Circular Note, Conditions for Granting Privileged Status of the Children of Diplomatic Agents
and Administrative and Technical Staff Members in Diplomatic Missions, (10 December 2010),
p. 2. http://diplomatie.belgium.be/en. Accessed on 25.12.2012.
87 Ibid, p.3-4.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

Furthermore, the family structure has a dynamic aspect which changes

within each society in time.
However, it is internationally accepted that the family is composed of at
least spouses, dependent parties and children of different age categories.
In addition, household also includes private servants who are not citizen
of the receiving state but dwell under the same roof with the diplomatic
agent.
Because of dynamic and unstable nature of the family heated debates
took place in each preparation process of the Convention. Some
representatives of the states suggested various definitions whereas some
of them refrained from making a definition instead proposed to leave the
issue bilateral agreements. Consequently, the drafters could not arrive at
consensus on a definition of family members.
As a result, the scope of family could not be defined in the Convention
due to lack of agreement and therefore it is now determined according to
customary law, bilateral treaties, or principle of reciprocity.
***
BIBLIOGRAPHY
180 Barker JC: The Abuse of Diplomatic Privileges and Immunities: A
Necessary Evil? (Aldershot: Dartmouth), (1996).
Benedek M L: The Diplomatic Relations Act: The United States
Protects Its Own, 5 Brooklyn Journal of the International Law, 379,
385-87 (1979).
Circular Note: Conditions for Granting Privileged Status of the Children
of Diplomatic Agents and Administrative and Technical Staff Members
in Diplomatic Missions, (10 December 2010).
Circular Note: The Privileged Status of the Spouses and Unmarried
Legal Partners of the Staff Members of Diplomatic Mission, (16 May
2008). Available at: http://diplomatie.belgium.be/en. Accessed on
25.12.2012/ Accessed 25.12.2012.
Denza E: Diplomatic Law, 3rd edn, Oxford, (2008).
Diplomatic Handbook: Protocol Department of Ministry for Foreign
Affairs, Reykjavik, (March 2010). Available at: http://www.mfa.is/
Accessed 25.12.2012.
Diplomatic Relations Act: Pub. L. No. 95-393, 92 Stat. 808 (1978).

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

Evans Malcolm D: International Law, 3rd edn, Oxford, (2010).

Harris David: Cases and Materials of International Law, 7th ed, (2010).
Hill M: Immunities and Privileges of Officials of the League of Nations,
(1945).
Jones R. G.: Termination of Diplomatic Immunity (1948) 25 British
Yearbook of International Law.
Ling Yu-Long: A Comparative Study of the Privileges and Immunities
of United Nations, Washington and Lee Law Review Vol. XXXIII,
winter 1976, No. 1.
McClanahan G V: Diplomatic Immunity: Principles, Practices,
Problems, London, (1989).
Moutzouris Maria: Sending and Receiving: Immunity Sought by
Diplomats Committing Criminal Offences, Thesis of Masters, Rhodes
University. Available at: http:// www.eprints.ru.ac.za/ Accessed
15.12.2012.
Protocol Guide for Diplomatic Missions and Consular Posts, Protocol
Department of Ministry of Foreign Affairs (March 2012). Available at:
http//www.government.nl. Accessed 24.12.2012. 181
Ogdon M.: Juridical Basis of Diplomatic Immunity: A Study in the
Origin, Growth and Purpose of the Law, John Byrne& Co.: Washington
D.C. (1936).
Ross Mitchell S.: Rethinking Diplomatic Immunity: A Review of
Remedial Approaches to Address the Abuses of Diplomatic Privileges
and Immunities American University Journal of International
Law&Policy, Volume 4:173.
Satow E.: Satows Guide to Diplomatic Practice, p. 106 (Lord Gore-
Booth 5th edition 1979).
Sen B.: A Diplomats Handbook of International Law and Practice,
(1965).
Shaw Malcolm N.: International Law, 6th edn, Cambridge, (2008).
Wickremasinghe Chanaka: Immunities Enjoyed by Officials of States
and International Organizations edited by Malcolm D. Evans,
rd
International Law, 3 edn, Oxford, 2010.

Law & Justice Review, Volume:IV, Issue:1, June 2013

 Scope of Diplomatic Family in Vienna Convention on Diplomatic Relations
Mehmet YAVUZ

Wilson Robert A: Diplomatic Immunity from criminal Jurisdiction:

Essential to Effective International Relations, 7 Loyola of Los Angeles
International and Comparative Law Review 113 (1984).
Yearbook of the International Law Commission, vol. I, (1958).
Yearbook of the International Law Commission, vol. II, (1958).
http://meriam-webster.com. Accessed 24.12.2012.
http://oxforddictionaries.com/definition. reached at 24. 12. Accessed
24.12. 2012.

182

Law & Justice Review, Volume:IV, Issue:1, June 2013