Over the past years The Hague has established itself as the international city of peace and justice, as it is home to a multitude of international organizations, NGOs and representatives of 175 states, out of which 98 have embassies in the city. GMW Advocaten new article in the Law Matters series explains some aspects of the diplomatic status that is conferred to members of the Corps Diplomatique.
As a law firm based in The Hague, GMW Advocaten frequently advise their clients on the many practical aspects of diplomatic privileges and immunities; the most common ones being private immovable property, succession as heir or legatee and professional or commercial activity outside official diplomatic functions.
Looking back, one can affirm that the so-called State Courtesy (comitas gentium) has served as a dogmatic benchmark in relations between states for quite some time. However, then and now, the provisions granting immunity and privileges and the practical implications thereof are sometimes not clear enough, at least not at first glance.
At present, upon arrival in The Hague, the many international organizations and representatives of states find a bulwark of international customary law and applicable Dutch law, ready to provide them with privileges and immunities, almost handed over on a silver platter.
Diplomatic immunity
The institution of diplomatic immunity was called into being to allow for the maintenance of relations between governments, also providing for periods of difficulties and even armed conflict. When receiving diplomats – formally, representatives of the sovereign/head of state – the receiving head of state grants certain privileges and immunities to ensure that these may effectively carry out their duties.
This is based on the understanding that privileges and immunities will be provided on a reciprocal basis. Originally, these were granted on a bilateral and ad hoc basis, which led to misunderstandings and even conflict.
The Vienna Convention
The Convention on Diplomatic Relations, drafted in Vienna on 18 April 1961 and entered into force on 24 April 1964 (United Nations, Treaty Series, vol. 500, p. 95) created a framework that ensures the efficient functioning of diplomatic missions representing States. The Convention affirms that the rules of customary international law should continue to govern questions not expressly regulated by the provisions of the Convention.
Protected Missions
As receiving State, Dutch Governmental Bodies are under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission are to be held immune from search, requisition, attachment or execution.
Furthermore, diplomatic agents enjoy immunity from Dutch jurisdiction. This immunity includes criminal, civil and administrative jurisdiction, with an exception in three cases:
1 A real action relating to private immovable property situated on the territory of the Netherlands, unless the diplomatic agent holds it on behalf of the sending State for the purposes of the mission;
2 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;
3 An action relating to any professional or commercial activity exercised by the diplomatic agent in the Netherlands outside his official functions.
Waiver of Immunity
A fact perhaps not always obvious: the immunity of a diplomatic agent from the jurisdiction of the Netherlands does not exempt him from the jurisdiction of the sending State. It is possible therefore for the official’s home country or Sending State to waive immunity. This tends to only happen when the individual Diplomat has committed a serious crime, unconnected with his diplomatic role (as opposed to, say, allegations of spying), or has witnessed such a crime. Alternatively, the home country may prosecute the individual.
It is impossible to touch upon all aspects related to diplomatic immunities and privileges – however, should any aspect of this article raised questions that seek a competent answer please contact us.
Arthur de Groot, Lawyer
GMW Advocaten, The Hague
T 070 3615048
E a.degroot@gmw.nl