The L.A.W. of the Empire of Morocco

A.  Introduction

1 The inviolability of diplomatic agents is one of the oldest rules of international law. Already thousands of years ago, in the practice of, for example, the Greek and the Romans, a diplomatic agent—then called a messenger or herald—was not to be maltreated or subjected to any form of arrest or detention. The immunity from the jurisdiction of the courts of the foreign State in which the agent performs his or her functions is of a more recent date, and can be traced back to the 16^th century (Immunities). As far as criminal jurisdiction is concerned, the immunity rule quickly acquired an absolute status (Criminal Jurisdiction of States under International Law). Although it was at times argued that immunity did not extend to crimes against the receiving State—such as treason—early State practice did not reflect this position. When for example in 1584 the Spanish Ambassador to England was found to have partaken in a conspiracy against Queen Elizabeth, he was not arrested but sent back to his sovereign. The contours of the rule of immunity from civil jurisdiction were more controversial. Initially, there was considerable support for the position, put forward for example by Gentili, that ambassadors were not immune in respect of legal disputes concerning contracts entered into during the mission. It was not until the 18^th century that diplomatic immunity from civil jurisdiction for acts not committed on behalf of the sending State became accepted as a rule of international law.

2  At the end of the 19^th and the beginning of the 20^th century several attempts at codification of the international law of diplomatic immunity were undertaken. The Institut de Droit international issued its Règlement sur les immunités diplomatiques in 1895 and a resolution on ‘Les immunités diplomatiques’ in 1929, in 1928 the Sixth International Conference of American States adopted the Convention Regarding Diplomatic Officers 155 LNTS 259, No 3581, and in 1932 the Harvard Research School published a Draft Convention on Diplomatic Privileges and Immunities ((1932) 26 AJIL Supp 15). Diplomatic law was among the first 14 topics that the newly established International Law Commission (ILC) selected for codification in 1949. The work of the ILC eventually resulted in the adoption of the Vienna Convention on Diplomatic Relations (1961) (‘VCDR’; ‘Convention’).

3  Today this Convention has been ratified by over 190 States, and while in 1961 some of its provisions were not as much a codification of existing international law but rather a development of the law in view of the lack of consistent State practice (Codification and Progressive Development of International Law), the Convention has had a remarkable converging effect on State practice and has consequently shaped customary international law in the field. For the discussion of the rules of diplomatic immunity this contribution will therefore proceed from the relevant provisions of the Convention. In addition to the rules on the inviolability and immunity of personnel of a diplomatic mission, the rules on the inviolability of the diplomatic mission itself, and the rules protecting the archives and communications of the mission will be examined (see also Members of the Staff of Diplomatic Missions). It is no longer accepted to explain these diplomatic immunity rules in terms of Extraterritoriality. In modern international law the rules have a common rationale: ensuring the effective performance of diplomatic functions. The receiving State should not interfere with the work of the diplomatic agent—non impediatur legatio.

4  It should be noted at the outset that States may agree to accord more extensive privileges and immunities than required under the Convention on a reciprocal basis (Vienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, 23 UST 3227, Art.47, (2), (b)). Moreover, Vienna Convention on Diplomatic Relations (United Nations [UN]) 500 UNTS 95, UNTS Reg No I-7310, TIAS No 7502, 23 UST 3227, Art.47, (2), (a) provides that a receiving State may also apply ‘any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State’. The ILC commentary makes clear however that any restrictive application should stay within the bounds of the Convention. ‘It is assumed’, the commentary reads, ‘that the restrictive application in the sending State … is in keeping with the strict terms of the rule in question, and within the limits allowed by the rule’ (Draft Articles on Diplomatic Intercourse and Immunities with commentaries, adopted by the International Law Commission at its tenth session, in 1958 [[1958] II UNYBILC 89, UN Doc A/CN.4/SER.A/1958/Add.1, 89, UN Doc A/3859 (A/13/9), Ch.III, para.53], Section V Non-discrimination, Art.44 Commentary). In other words, the provision does not extend to the use of countermeasures in reaction to violations of the Convention (see also para. 34 below).

5  This contribution is limited to the rules applicable to permanent diplomatic missions. The position of ad hoc diplomatic missions will be treated in a different entry (Immunities, Special Missions). (Oxford Public International Law: Immunity, Diplomatic)