Jon Scieszka, National Ambassador for Children's Literature Emerititutis is here. Before you read the transcript of his talk in the next post, you must agree to this 62 page contract waiving all potential suits you might bring against Jon for any reason, at anytime, anywhere in California.
SCBWI members, employees and guests need to understand the scope and limitations of the privileges and immunities that flow from Jon's diplomatic or consular status, and the obligations and liabilities that his status imposes upon them.
Privileges and immunities are set forth rather explicitly in two basic bilat- eral treaties, the Vienna Convention on Diplomatic Relations of 1961 (VCDR) and the Vienna Convention on Consular Relations of 1969 (VCCR). Additional privileges and immunities may be contained in bilateral agreements, most of which are styled as consular agreements, but other agreements, such as friendship, commerce, and navigation treaties may also contain provisions that pertain to the immunities of consular and diplomatic personnel and to the embassy and consular offices. Frequently, international organizations have treaties or arrange- ments with host states that provide for privileges and immunities for their own staff, members of missions to that organization, or experts or other representatives on a mission for that organization (e.g., peace- keeping, humanitarian assistance). Finally, some agencies, such as USAID or Peace Corps, have specific arrangements with a host state that provide privileges and immunities “consistent” with a particular status.
The discussion below can provide only a general framework. When seeking information about a specific situation, guidance should come from someone who demonstrates a full understanding of the modern treaties that address the subject. The Legal Adviser’s Office of Diplo- matic Law and Litigation has legal experts who will advise you on these matters. In addition, you should be able to review the applicable trea- ties in the post library, the administrative office, and on the Internet.
The discussion below addresses the situation of U.S. Government employees of the foreign affairs agencies and employees of other U.S.
agencies who are posted abroad and notified to a receiving state as diplomatic agents or members of the administrative and technical
staff for embassy personnel, or as consular officers or members of the consular staff for those assigned to consulates outside the capi- tal. It also applies to some family members who are considered part of
the employee’s household. Family members who are nationals of the receiving state generally will not have any privileges and immunities.
This discussion of privileges and immunities does not, however, address the situation of U.S. personnel assigned to U.S. missions to international organiza- tions. Note also that USAID employees generally receive their privileges and immunities pursuant to the bilateral economic assistance agreement between the United States and the particular country to which the employee is assigned. USAID employees can deter- mine their status at a particular post by talking with the Regional Legal Advisor or the Executive Officer.
BACKGROUND
Centuries ago, sovereign states discovered that it was not possible to maintain useful diplomatic relations with other nations if their respective diplomatic envoys had to live in fear of being thrown into a dungeon for carrying unfavorable opinions to the host government or for other real or imagined offenses to the host state. When these early diplomats began to reside in the host state, it was realized that they needed se- curity in their persons, homes, and official papers in order to accomplish the work that both the sending and receiving states agreed (during moments when tempers were cool) that they should accomplish. Over time, a body of customary international law developed to provide a broad range of privileges and immunities for diplomats, eventually including some degree of similar protection for members of their staffs and families. The Vienna Convention on Diplo- matic Relations, concluded in 1961, reflects the cus- tomary international law (refined and brought up-to- date) with respect to diplomats and is now adhered to almost universally by the nations of the world.
Consular representatives were traditionally consid- ered quite apart from diplomats. Historically, consular functions consisted of helping to resolve problems involving citizens from the consul’s home country and issuing travel documents. These were held to be mat- ters not warranting special privileges and immunities. Over time, however, consular functions became more sophisticated. States came to realize that at least a limited degree of protection was necessary for their consuls. Many nations, including the United States, entered into bilateral agreements with their principal
allies and trading partners to provide for certain con- sular privileges and immunities.
The Vienna Convention on Consular Relations of 1969 incorporates rules that were developed by customary practice and found in bilateral consular agreements and has obtained broad adherence. However, these consular privileges and immuni- ties are generally markedly less than those afforded diplomats. Nonetheless, some nations have, on a bilateral basis, concluded agreements with the United States that provide additional privileges and immuni- ties for consular personnel. It is thus critical, when attempting to ascertain privileges for consular per- sonnel, to determine whether there is an applicable bilateral agreement.
The same U.S. Government employee may be ac- corded diplomatic immunities during one tour at an embassy and quite different (and lesser) immuni- ties during a subsequent assignment to a consulate separate from the embassy. This is because entitle- ment to privileges and immunities stems from the status accorded a particular individual when he or she is formally accepted in a particular capacity by the receiving state and the post to which the person is assigned in that country. Status is not determined, in this context, by any professional designation, rank, or title that the sending state may assign.
Possession of a diplomatic passport alone affords its holder no privileges or immunities of any kind. The advantages that the diplomatic passport does afford are only courtesies that are without significance under international law and should not be relied upon.
Similarly, a person accredited to a particular country is entitled to the privileges and immunities that corre- spond to his or her specific status only in that particu- lar country (and, to a limited extent, when in transit to or from that country); not in third countries when on personal leave or even on official TDY. The receiving state accepts the posting of an individual and has the power to end privileges and immunities at any time by declaring that individual persona non grata, giving the individual a reasonable time to depart before privileges and immunities cease. No reason need be given.
DIPLOMATIC IMMUNITY (EMBASSY ASSIGNMENTS)
While all official U.S. employees sent from Wash- ington to embassies abroad share certain protection (e.g., criminal immunity, personal inviolability [immu- nity from arrest or detention], inviolability of property, including car, residence, official papers and corre- spondence), there is a functional distinction between diplomatic agents (engaged primarily in diplomatic exchange between the two states) and members
of the administrative and technical staff (engaged primarily in the support of the former category). Both categories are entitled to total immunity from the criminal jurisdiction of the receiving state. However, diplomatic agents enjoy more extensive immunity from the civil and administrative jurisdiction of the receiving state than do members of the administra- tive and technical staff. Administrative and technical staff (and family members of diplomatic agents and administrative and technical staff) have immunity only if they are not nationals of the receiving state. And service staff who also have immunity only if they are not nationals of the receiving state do not have crimi- nal or general civil and administrative immunity; their immunity extends to acts performed in the course of their official duties. Those on TDY who have not been notified to the host state have no privileges or immu- nities; nor do American citizens locally hired (Rock- efeller appointments or personal service contractors). Eligible family members ordinarily retain their status because of their connection to the sponsoring em- ployee.
It is the duty of all personnel with privileges and im- munities to respect the laws and regulations of the receiving state. U.S. Government employees are all expected to pay their just debts and other obligations and may not use their privileges and immunities to avoid them.
Criminal Immunity
Complete immunity from criminal jurisdiction means that a person may not be de- tained or arrested or subject to a body search and may not be prosecuted or required to give evidence as a witness. This immunity may be waived, and it may be waived in a limited
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fashion, but it is the U.S. Government’s immunity and must be waived by the Government; it cannot be waived by the individual or the post. To avoid a common complication, individuals who drive vehicles in the host state are advised to carry local liability insurance and may wish, in light of several cases where U.S. Government employees are being sued in the United States, to carry the same liability insurance limits overseas as they do at home.
Immunity from criminal jurisdiction does not mean that the receiving state authorities are precluded from interrupting certain dangerous criminal actions that present an immediate threat to public safety (e.g., stopping a diplomat who is driving dangerously). However, Foreign Service employees serving abroad need not perform duties under the threat of being treated as a common criminal by the law enforce- ment and judicial authorities of the receiving state.
Civil and Administrative Immunity
Civil and administrative actions are those in which a person or business (or a government) files a com- plaint (often seeking monetary damages) against an- other person before the civil or administrative authori- ties of the receiving state. Diplomatic agents enjoy comprehensive immunity in this respect, with three exceptions: actions connected with real property in the receiving state; actions where the diplomat is an executor or beneficiary of an estate in the receiving state; and actions relating to professional or commer- cial endeavors engaged in by the diplomat outside the scope of official functions. In general, members of the administrative and technical staff of embassies are only afforded civil and administrative immunity with respect to actions related to the performance of their official functions. (Special bilateral agreements with some countries grant more extensive immunities, which are sometimes identical to those of diplomatic agents, to members of the administrative and techni- cal staff. Check with your post management officer for the status of a specific country.)
For example, a member of the administrative and technical staff would probably be personally immune from a suit for breach of contract in connection with a contract that the employee negotiated with a local vendor for services to be provided to the embassy (al-though the U.S. Government might be a defendant). On the other hand, a member of the administrative and technical staff would ordinarily have no immu- nity from a private lawsuit for failure to pay personal debts or for compensation for damage to the prop- erty of a local citizen alleged to have occurred while the individual was off duty.
DIPLOMATIC IMMUNITY AND FAMILY MEMBERS
The preceding paragraphs refer to the immunities of the employee. The fundamental notion of privileges and immunities is to protect the interests of the send- ing state in having its employees be able to perform their official functions. The sovereign states discov- ered some time ago, however, that the employee could not be effectively protected without extending certain protections to the members of the employee’s immediate family who reside with him or her. Today, family members forming part of the household of most diplomatic personnel are also accorded ex- tensive immunities. However, cohabiting partners
of Foreign Service personnel or other members of household are not accorded any of the privileges de- scribed below. Further, adult children are not typically afforded immunities unless special circumstances (e.g., substantial disabilities) warrant.
U.S. citizen spouses and other household family members have the same immunities as the sponsor- ing accredited diplomat. However, under the VCDR, family members who are nationals of the host country (when the sponsor/employee is a diplomatic agent) or nationals or permanent residents (when the spon- sor/employee is a member of the administrative and technical staff) do not have privileges and immunities in that state. For example, a spouse of French na- tionality would not have privileges and immunities in France but, when posted to any other country, would receive precisely the same privileges and immunities as a spouse of U.S. nationality.
The criminal immunities of family members of dip- lomatic personnel are the same as those to which the sponsoring employee is entitled—that is, total criminal immunity for the families of both diplomatic agents and members of the administrative and tech- nical staff.
The civil and administrative immunities of families also correspond to those accorded both categories of sponsors. However, members of the administrative and technical staff (the sponsors/employees) them- selves enjoy only “official functions immunity” against civil and administrative actions. Thus, family members of administrative and technical staff employees enjoy no civil or administrative immunity (except in specific countries where a bilateral agreement might provide otherwise).
Waiver of Diplomatic Immunity
The right to waive immunities for any of its diplo- mats, staff employees, or family members resides in the government of the sending state and in our case only with the Department of State. The individual who ultimately benefits from the immunity has no power to waive such immunity, even in cases where he or she believes that it would be in his or her interest to do so. Rather, the sending state may waive immunity when it judges that to do so is in the national interest. An individual whose immunity is waived has no stand- ing under international law to protest this determina- tion.
The Department of State requests waivers of immunity from criminal jurisdiction in almost all cases involving foreign personnel accredited to the United States to ensure that the proper course of justice proceeds. On this basis, the U.S. Government may seriously con- sider waiving the criminal immunity of its employees, especially in cases where it is believes the employee would receive a fair trial and the interests of the United States would not be harmed.
The only instance in which the action of an individual can directly cause the partial loss of immunity is when an employee entitled to civil and administrative im- munity initiates a civil suit in the local courts. In that case, the VCDR bars the individual from asserting im- munity from counter-claims with respect to the same subject matter.
Even in a case in which all would believe it to be in the interest of the U.S. Government for a certain immunity to be waived (e.g., an embassy employee is the sole, disinterested witness to a crime and, as a “good citizen,” wishes to testify as a witness at the trial), authorization for a limited waiver of immunity must be sought from the Department of State by the embassy. If granted, it must be expressly communicat- ed to the foreign ministry of the receiving state before the employee takes any action. (A limited waiver might, for example, be devised to permit a diplomat to testify regarding an automobile accident that he
or she witnessed, but leave completely protected the diplomat’s immunity from the jurisdiction of the receiving state in all other respects.)
Family Member Employment
The VCDR contemplates the possibility that a receiv- ing state may permit local employment by diplomatic family members and provides rules regarding con- sequential restrictions on the immunities of family members when they are permitted to undertake local employment.
The Family Liaison Office in the Department of State negotiates bilateral employment agreements with other states to increase the opportunities for family members of official U.S. Government employees to obtain employment in the state to which their spon- sor has been assigned. As of 2006, 95 bilateral work agreements and 52 de facto arrangements have been concluded, and negotiations with additional countries continue.
These agreements acknowledge the limitations on civil and administrative (but not criminal) immunity for family members who take up employment in the receiving state, but only to the extent that such civil or administrative actions are related to the employment.
This means that an employed family member contin- ues to enjoy the privileges and immunities to which he or she would otherwise be entitled unless a suit is brought to recover monetary damages (or other civil remedy) for an act by the employed family member that is determined by a local court to be connected to his or her employment. For instance, immunity would probably not exist in the case of a suit against a fam- ily member by the employer based on allegations of fiscal improprieties.
LIMITS ON IMMUNITY
Persons enjoying diplomatic privileges and immuni- ties are, at least in a figurative sense, “above the law” of the receiving state. All states that enter into diplomatic relations with other states accept this en- croachment on their sovereignty as a necessary cost of being a member of the world community. However, the immunity concept would never have endured if
its application left the receiving state helpless to react to the commission of serious crimes in its territory or without recourse when foreign diplomats abuse the civil law rights of its citizens. In order to understand that some control must be retained, one need only recall the sense of outrage expressed by U.S. citizens whenever diplomatic immunity thwarts prosecution of a serious crime by a diplomat assigned to the United States. For this reason, the principle developed that all persons enjoying privileges and immunities also have the obligation and duty to respect the laws and regulations of the receiving state. This principle is expressly stated in both the VCDR and the VCCR.
In addition, the receiving state has the right to de- clare any person entitled to diplomatic privileges and immunities to be persona non grata (PNG) at any time and without stating a reason. When declared PNG, a person has a certain period of time to depart the country before being divested of all privileges and immunities. Failing such departure, the person faces any pending legal actions (civil or criminal) with only the defenses available to an ordinary citizen. In ex- treme cases, the receiving state will designate a very short time within which departure must take place or even formally expel the person.
The PNG procedure is sometimes employed for purely political purposes. It is also used by the host state to require the departure of diplomatic person- nel who have committed serious crimes or who have shown themselves to be generally disrespectful of local law. Family members may not be declared PNG since their privileges and immunities are deriva- tive, stemming from their status as family members. However, if the departure of a family member is desired, it is common practice to declare the sponsor PNG, thereby divesting the entire family of protected status. The PNG procedure is harsh and abrupt, but receiving states do not hesitate to use it in addressing unacceptable behavior.
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