diplomatic service are subject to
immunity. A distinction is made between
official activities (acta iure imperii) and
personal activities (acta iure gestionis).
Only official activities are subject to
immunity. Thus, if a foreign Embassy
in Washington places a lunch order
with a catering service operating in
the neighborhood, the catering service
can take legal action if the bill remains
unpaid. Not all countries make this
distinction, however, and some are
convinced that all activities by diplomats
are covered by immunity.
The level of diplomatic immunity
may differ according to the function and
status of the diplomat. Leading diplomats
enjoy the highest degree of immunity,
whereas technical, clerical and consular
staff generally enjoy functional immunity,
i.e. only for activities in connection with
the performance of their official duties.
An Embassy janitor will rarely be able to
appeal to immunity in a private dispute.
However, for reasons of national security
this may be entirely different for security
staff members.
Real Estate
Consulates may conclude commercial
contracts on behalf of the missions. Does
state immunity apply to such commercial
contracts as well? That mainly depends
on the reason for the conclusion of the
contract. Concluding a commercial
contract will, in principle, not be qualified
as an official act. The contract will thus
fall under the acta iure gestionis and state
immunity does in principle not apply.
contribute to preserving the Embassy or
Consulate and as a result, fall under the
acta iure imperii. Purchasing or leasing
an Embassy building or residence of the
ambassador or senior diplomats belong
to the latter category. However, if an
economic attaché decides to build a real
estate portfolio in his temporary place
of residence, immunity will not apply.
In the event the real estate is meant
as accommodation for diplomats, the
portfolio may however well be covered by
immunity.
Social Security
immunity. According to customary
international law, concluding an
employment contract falls under the acta
iure gestionis and immunity does not
apply. This paragraph is not applicable
if the employee has the nationality of the
sending state or his or her common place
of residence is not in the receiving state.
Professional diplomats usually fall under
these exceptions.
If a dispute arises regarding the
employment contract of locally recruited
support staff, the court of the host country
can render a judgment on it. An exception
is if the Embassy refers to its own national
security. Obviously, the court cannot
check whether this plea was made justly
without violating state immunity.
Mandatory social security insurance is
closely connected with employment law.
Mandatory social security insurance is not
a tax and therefore, fees must be paid. In
the event one is subject to the mandatory
social security insurance, one also has
to fulfill the obligations of social security
the event of sickness. These rules can
differ from country to country.
Consulate does not fulfill its obligations?
In principle, in the event of acta iure
gestionis, the law of obligations of the host
country will apply. In this case, if it turns
out that a settlement cannot be reached,
legal proceedings against the Embassy
can be launched if necessary. If an
Embassy appears at a court session and
does not immediately invoke immunity, it
is considered to have waived its immunity.
If the claimant wins the lawsuit, the
matter will not necessarily be over. The
buildings and bank accounts of Embassies
are inviolable and therefore not subject to
execution.
However, a state is expected
to cooperate when it comes to the
enforcement of a judgment. After all,
diplomatic relations are based on mutual
respect. If an Embassy refuses to fulfill
its obligations, the claimant does not have
any legal coercive measures. An option
may be to report the refusal to comply
with a judgment to the Ministry of Foreign
Affairs that maintains relations with the
diplomatic community.
absolute but subject to limitations.
However, even if there is no diplomatic
immunity involved, inviolability may still
apply. When disputes involving immunity
arise, it is advisable to get assistance from
a lawyer who is experienced in dealing
with these complex matters.