Diplomatic Immunity: History and Overview

CRS Report for Congress
Diplomatic Immunity: History and Overview
Michael John Garcia
Legislative Attorney
American Law Division
Summary
Since ancient times, the concept of diplomatic immunity has been recognized in
relationships between sovereign entities. More recently, the Vienna Convention on
Consular Relations served to codify customary practice concerning the recognition and
scope of diplomatic immunity. This report describes the history behind the principle of
diplomatic immunity, as well as international and domestic law concerning the scope
of this immunity.
Historical Background of Diplomatic Immunity
From the earliest of times, interaction between sovereign entities has required secure
means of communication between a government and its envoys in order to facilitate
relations between governments. Sovereign entities have long recognized the concept of
diplomatic immunity from the jurisdiction of the receiving sovereign as being necessary
to ensure that these channels of communication are preserved. The concept of diplomatic
immunity has long-standing roots in international practice, and can be traced as far back¹
as the ancient civilizations of China, India, and Egypt. The Greek historian Thucydides
records that the ancient Greek City-States regularly exchanged special missions, and
ambassadors were ceremoniously received and courteously treated by the receiving City-
State.² The early Romans, too, maintained treaty relations with neighboring nations that³
included active diplomatic exchange.

¹ United States v. Enger, 472 F. Supp. 490, 504 (D. N.J. 1978) (citing P^LI^SCHKE,C^{ONDUCT OF}
A^M^E^RI^CAND^IP^L^O^MA^C^Y3(3^rd ed. 1959). For example, Ramses II of Egypt and the Hittites
negotiated a treaty including provisions for the immunity of each nation’s diplomats within the
receiving nation. Id. at 504n9.
² B^I^S^W^ANATHS^EN,AD^IP^L^O^MA^T’^SH^{ANDBOOK OF}I^NTERNATI^ONALL^AW^ANDP^RACTI^C^E3(3^rd ed.

1988).

³ Id. at 3-4.
Congressional Research Service ˜ The Library of Congress

In both ancient Greece and Rome, diplomats enjoyed personal inviolability that
included immunity from the receiving nation’s civil and criminal jurisdiction, and the
receiving sovereign owed a special duty to protect the diplomat’s person.⁴ Even a crime
as severe as plotting to overthrow the receiving sovereign could not be punished; the only
permissible response was to declare the diplomat persona non grata and oust him from
the territory.⁵ A violation of a diplomat’s inviolability required immediate reparation by
the offending sovereign, and “[m]ore than one war began because an envoy was detained
or punished by the receiving sovereign without reparation.”⁶
As political and economic contact between nations grew, so too did the need for
regular diplomatic contact between nations. By the end of the Middle Ages, diplomacy
was being practiced in a manner closely resembling modern practice, and the recognition
of diplomatic immunity by receiving States had become a customary norm.⁷ Indeed, the
noted international legal commentator Grotius asserted that “[t]here are two maxims in
the law of nations relating to ambassadors which are generally accepted as established
rules: The first is that ambassadors must be received and the second that they must suffer
no harm.”⁸
The Vienna Convention on Diplomatic Relations,⁹ ratified by the U.S. in 1972,
codified the customary law of diplomatic relations that had developed in the previous
millennia, including the scope of diplomatic immunity. Historically, a number of
theoretical justifications had been presented in support of the doctrine of diplomatic
immunity.¹⁰ The privileges and immunities granted to diplomats pursuant to the Vienna
Convention are based upon the theory of functional necessity–that is, those privileges and
immunities that are required to enable the diplomat to effectively perform his prescribed
duties.¹¹

⁴ B^ARRYE.C^ARTER&P^HI^LLI^PR.T^RI^M^B^LE,I^NTERNATI^ONALL^AW654(3^rd ed. 1999) (hereinafter
“C^ARTER&T^RI^M^B^LE”).
⁵ Id.
⁶ Id.
⁷ Enger, 472 F. Supp. at 505.
⁸ G^ROTI^US,D^EJ^UREB^ELLI^ACP^ACI^S,B^OOKII,C^HAP^TERXVIII.
⁹ Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502
(hereinafter “Vienna Convention”).
¹⁰ Two notable, historical justifications for diplomatic immunity that are not reflected by the
Vienna Convention are the extraterritoriality and representative character theories. The
extraterritoriality theory posited the legal fiction that the diplomat legally remained in the sending
State even when he was temporally in the receiving State. C^ARTER&T^RI^M^B^LE, supra note 4.
According to the representative character theory, the diplomat is the personification of the
sending State, and should therefore receive the same privileges as the sovereign. See Michael
B. McDonough, Note, Privileged Outlaws: Diplomats, Crime, and Immunity, 20 S^UFFOLK
T^RANSNAT’^LL.R^EV. 475, 485-86 (1987).
¹¹ See Vienna Convention at Preamble (declaring that “the purpose of...[diplomatic] privileges
and immunities is not to benefit individuals but to ensure the efficient performance of the
functions of diplomatic missions....”).

International Law Concerning the Scope of Diplomatic Immunity
The Vienna Convention is the controlling international legal authority concerning
the scope of diplomatic immunity.¹² It provides that diplomats, diplomatic mission staff
members, the families of diplomatic agents, and personal servants of mission members
shall receive varying degrees of immunity from the jurisdiction of the receiving State.¹³
The diplomatic agent, defined as the “the head of the mission or a member of the
diplomatic staff of the mission,”¹⁴ receives the highest degree of immunity. Article 29 of
the Vienna Convention provides: “The person of a diplomatic agent shall be inviolable.
He shall not be liable to any form of arrest or detention. The receiving State shall treat
him with due respect and shall take all appropriate steps to prevent any attack on his
person, freedom, or dignity.”¹⁵ Diplomats enjoy absolute immunity from criminal
jurisdiction of the receiving State.¹⁶ They also are immune from 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; [or] (c) an action relating to any
professional or commercial activity exercised by the diplomatic agent in the receiving

¹² It should be noted that diplomatic missions and agents are distinct from consulates and
international organizations under international law. The privileges and immunities afforded to
consular officers and missions are mainly provided for by the Vienna Convention on Consular
Relations, Apr. 24, 1963, 21 U.S.T. 77. The privileges and immunities afforded to individual
international organizations and their members are determined by treaty or the domestic law of
the receiving State. For example, the privileges and immunities granted to international
organizations by the United States are governed by the International Organization Immunities
Act, 22 U.S.C. § 288 (2003).
¹³ Family members of a diplomat who are not nationals of the receiving State enjoy the same
privileges and immunities afforded to the diplomat pursuant to Articles 29 through 36 of the
Vienna Convention. Vienna Convention at art. 37(1). Members of the administrative and
technical staff of the diplomatic mission, along with members of their families, shall, if they are
not nationals of or permanent residents in the receiving State, enjoy the privileges and immunities
afforded to diplomatic agents except 1) their immunity from civil and administrative jurisdiction
of the receiving State shall not extend to acts performed outside the course of their duties and 2)
exemptions from custom duties for articles imported into the receiving State for official or
personal use will apply only at the time of first installation. Id. at art. 37(2). Members of the
service staff of the mission who are not nationals of or permanent residents in the receiving State
shall enjoy immunity in respect of acts performed in the course of their duties, as well as
exemption from dues and taxes on the emoluments they receive by reason of their employment.
Id. at art. 37(3). Private servants of members of the mission shall, if they are not nationals of or
permanent residents in the receiving State, be exempt from dues and taxes on the emoluments
they receive by reason of their employment. Id. at art. 37(4).
¹⁴ Id. at art. 1(e).
¹⁵ Id. at art. 29.
¹⁶ Vienna Convention at art. 31(1).

State outside his official functions.”¹⁷ In addition, the receiving State may not compel a
foreign diplomat to give evidence as a witness.¹⁸
As a result of the broad immunity granted by the Vienna Convention, receiving
States have only a limited number of options for dealing with a diplomat’s impropriety.
One method for dealing with abuse is by declaring the diplomat persona non grata, in
which case the sending State shall either recall the diplomat or terminate his functions
with the mission and thereby eliminate his prospective diplomatic immunity.¹⁹ If the
sending State refuses or fails to respond to the receiving State’s persona non grata
declaration regarding one of its diplomats, the receiving State may refuse to recognize the
person concerned as a member of the mission.²⁰
Another option available to the receiving State is to reach an agreement with the
sending State to waive a diplomat’s immunity. Article 32 of the Vienna Convention
provides that the sending State can waive the diplomatic immunity of an agent, though
this waiver must always be express.²¹ A notable recent example of a sending State
waiving diplomatic immunity for a foreign officer occurred in 1997, when a Georgian
diplomat, driving drunk, killed an American teenager in a car accident. Although
diplomatic immunity would have shielded the diplomat from prosecution in the United
States, Georgia waived the diplomat’s immunity and he was subsequently convicted for
involuntary manslaughter.²² The diplomat nevertheless remained immune from civil suit,
however, because neither the Department of State’s request to Georgia for a waiver of
immunity nor the actual waiver expressly mentioned civil litigation.²³
Redress for offenses committed by a diplomat in the receiving State may be sought
within the sending State. The immunity of the diplomatic agent from the jurisdiction of
the receiving State does not exempt him from the jurisdiction of the sending State.²⁴
Depending upon the particular civil and criminal laws of the sending State, its diplomats
could potentially be held liable for actions they commit in another State.
Further, the privileges and immunities provided by the Vienna Convention remain
subject to reciprocal limitations. Article 47 of the Convention provides that if the
receiving State infringes upon the legal rights afforded to the sending State, the sending
State is permitted to reciprocate this treatment against the receiving State’s diplomats.²⁵

¹⁷ Id.
¹⁸ Id. at art. 31(2).
¹⁹ Id. at art. 9(1).
²⁰ Id. at art. 9(2).
²¹ Id. at art. 32.
²² C^ARTER&T^RI^M^B^LE, supra note 4 at 655-56.
²³ See Knab v. Republic of Georgia, Civ. No. 97-3118, 1998 WL 34067108 (D.D.C. May 29,

1998).

²⁴ Vienna Convention at art. 31(4).
²⁵ Id. at art. 47.

U.S. Domestic Law Concerning Diplomatic Immunity
Enacted legislation and treaties ratified by the United States operate as the “supreme
Law of the Land.”²⁶ Following its ratification of the Vienna Convention, the U.S. enacted
the Diplomatic Relations Act (“DRA”),²⁷ which more fully details the scope of
immunities provided to foreign diplomats in the United States. The DRA generally
provides that diplomats from all States shall enjoy the privileges and immunities specified
in the Vienna Convention, regardless of whether or not the States are actually parties to
the Convention.²⁸ Any action or proceeding brought in a U.S. court against an individual
entitled to immunity with respect to the DRA or Vienna Convention shall be dismissed.²⁹
The DRA also provides that the President may, on the basis of reciprocity, specify
privileges and immunities for diplomats which result in more or less favorable treatment
than is provided by the Vienna Convention.³⁰
Conclusion
Since ancient times, diplomatic immunity has been a customary practice in
international relations. The Vienna Convention on Diplomatic Relations codified this
customary practice and provided diplomats with broad immunity from the jurisdiction of
receiving States that can only be circumvented in limited circumstances. As a party to the
Vienna Convention, the United States has adopted its provisions concerning diplomatic
immunity, and in enacting the Diplomatic Relations Act, the United States provided a
similar level of immunity to diplomats of States that are not party to the Convention.

²⁶ U.S. C^ONST.art. VI, cl. 2.
²⁷ 22 U.S.C. §§254-258 (2003).
²⁸ 22 U.S.C. §254(a). The families of diplomatic agents, as well as diplomatic mission members
and their families, receive the same privileges and immunities under the DRA as they receive
under the Vienna Convention.
²⁹ 22 U.S.C. §254(d).
³⁰ 22 U.S.C. §254(c).