Immunity

Immunity (from Lat. immunis, not subject to a munus or public service), a general term for exemption from liability, principally used in the legal sense discussed below, but also in recent times in pathology (for which see Bacteriology). In international law the term (“not serving,” “not subject”) implies exemption from the jurisdiction of the state which otherwise exercises jurisdiction where the immunity arises. It is thus applied to the exceptional position granted to sovereigns and chiefs of states generally, and their direct representatives in the states to which they are accredited.

Under Exterritoriality is treated the inviolability of embassies and legations and the application of the material side of the doctrine of immunity. As a right appertaining to the persons of those who enjoy it, the doctrine has grown out of the necessity for sovereigns of respecting each other’s persons in their common interest. To be able to negotiate without danger of arrest or interference of any kind with their persons was the only condition upon which sovereigns would have been able to meet and discuss their joint interests. With the development of states as independent entities and of intercourse between them and their “nationals,” the work of diplomatic missions increased to such an extent that instead of having merely occasional ambassadors as at the beginning, states found it expedient to have resident representatives with a permanent residence. Hence the sovereign’s inviolability becomes vested in the person of the sovereign’s delegate, and with it as a necessary corollary the exterritoriality of his residence. Out of the further expansion of the work of diplomatic missions came duplication of the personnel and classes of diplomatic secretaries, who as forming part of the embassy or legation also had to be covered by the diplomatic immunity.

In no branch of international intercourse have states shown so laudable a respect for tradition as in the case of this immunity, and this in spite of the hardship which frequently arises for private citizens through unavoidable dealings with members of embassies and legations. The Institute of International Law (see Peace) at their Cambridge session in 1895 drew up the following rules,1 which may be taken to be the only precise statement of theory on the subject, for the guidance of foreign offices in dealing with it:—

Art. 1.—Public ministers are inviolable. They also enjoy “exterritoriality,” in the sense and to the extent hereinafter mentioned and a certain number of immunities.

Art. 2.—The privilege of inviolability extends: (1) To all classes of public ministers who regularly represent their sovereign or their country; (2) To all persons forming part of the official staff of a diplomatic mission; (3) To all persons forming part of its non-official staff, under reserve, that if they belong to the country where the mission resides they only enjoy it within the official residence.

Art. 3.—The government to which the minister is accredited must abstain from all offence, insult or violence against the persons entitled to the privilege, must set an example in the respect which is due to them and protect them by specially rigorous penalties from all offence, insult or violence on the part of the inhabitants of the country, so that they may devote themselves to their duties in perfect freedom.

Art. 4.—Immunity applies to everything necessary for the fulfilment by ministers of their duties, especially to personal effects, papers, archives and correspondence.

Art. 5.—It lasts during the whole time which the minister or diplomatic official spends, in his official capacity, in the country to which he has been sent.

It continues even in time of war between the two powers during the period necessary to enable the minister to leave the country with his staff and effects.

Art. 6.—Inviolability cannot be claimed: (1) In case of legitimate defence on the part of private persons against acts committed by the persons who enjoy the privilege; (2) In case of risks incurred by any of the persons in question voluntarily or needlessly; (3) In case of improper acts committed by them, provoking on the part of the state to which the minister is accredited measures of defence or precaution; but, except in a case of extreme urgency, this state should confine itself to reporting the facts to the minister’s government, requesting the punishment or the recall of the guilty agent and, if necessary, to surrounding the official residence to prevent unlawful communications or manifestations.

Immunity with Respect to Taxes.

Art. 11.—A public minister in a foreign country, functionaries officially attached to his mission and the members of their families residing with them, are exempt from paying: (1) Personal direct taxes and sumptuary taxes; (2) General taxes on property, whether on capital or income; (3) War contributions; (4) Customs duties in respect of articles for their personal use.

Each government shall indicate the grounds (justifications) to which these exemptions from taxation shall be subordinated.

Immunity from Jurisdiction.

Art. 12.—A public minister in a foreign country, functionaries officially attached to his mission and the members of their families residing with them, are exempt from all jurisdiction, civil or criminal, of the state to which they are accredited; in principle, they are only subject to the civil and criminal jurisdiction of their own country. A claimant may apply to the courts of the capital of the country of the minister, subject to the right of the minister to prove that he has a different domicile in his country.

Art. 13.—With respect to crimes, persons indicated in the preceding article remain subject to the penal laws of their own country, as if they had committed the acts in their own country.

Art. 14.—The immunity attaches to the function in respect of acts connected with the function. As regards acts done not in connexion with the function, immunity can only be claimed so long as the function lasts.

Art. 15.—Persons of the nationality of the country to the government of which they are accredited cannot claim the privilege of immunity.

Art. 16.—Immunity from jurisdiction cannot be invoked: (1) In case of proceedings taken by reason of engagements entered into by the exempt person, not in his official or private capacity, but in the exercise of a profession carried on by him in the country concurrently with his diplomatic functions; (2) In respect of real actions, including possessory actions, relating to anything movable or immovable in the country.

It exists even in case of a breach of the law which may endanger public order or safety, or of crime against the safety of the state, without prejudice to such steps as the territorial government may take for its own protection.

Art. 17.—Persons entitled to immunity from jurisdiction may refuse to appear as witnesses before a territorial court on condition that, if required by diplomatic intervention, they shall give their testimony in the official residence to a magistrate of the country appointed for the purpose.

Further questions connected with Immunity and Exterritoriality (q.v.) arise out of the different industrial enterprises undertaken by states, such as posts, telegraphs, telephones, railways, steamships, &c., which require regulation to prevent conflicts of interest between the state owners and the private interests involved in these enterprises.

(T. Ba.)

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1 The rules were drawn up in French. The author of this article is responsible for the translation of them.

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