GARLAND R. WALKER AMERICAN INN OF COURT

Pupillage Group 2

Sovereign and Diplomatic Immunity

Tuesday November 10, 2009

Sovereign Immunity

Sovereign Immunity

• Article III, § 2 of the Constitution

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. . . to Controversies . . . between a State and Citizens of another State . . . and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.

• Eleventh Amendment to the Constitution

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

IntroductionAnd

History

DIPLOMATIC IMMUNITY

Diplomatic Immunity in the Media

DIPLOMATIC IMMUNITY

The 1961 Conventionand the

Diplomatic Relations Actof 1978

DIPLOMATIC IMMUNITY

Who is Immune, and for What Deeds?

Vienna Conference (“the Conference”) of Diplomatic Relations

• Followed various attempts to codify diplomatic immunities and privileges– 1815: Vienna– 1927: League of Nations– 1928: Havana Convention

• The outcome of World War II fostered a desire for codification

The Conference

• Cold War Impact– Yugoslavian push– East v. West tensions

• Selection of Vienna– History– Neutrality

Conference Highlights

• Controversial Issues

– Wireless transmitters

– Diplomatic bag

– Differing State practices

Key Provisions

• Article 22– Bars entry of receiving state law enforcement

officials & imposes duty on receiving state to protect mission premises

• Article 24– Ensures inviolability of archives & documents,

even outside mission premises• Article 27

– Guarantees free communication between mission & its sending State

Key Provisions (continued)

• Article 29– Provides for inviolability of diplomats

• Article 31– Establishes immunity from civil and

criminal jurisdiction• Article 32

– Establishes rules for waiver by sending state of immunities/privileges

Key Provisions (continued)

• Article 34– Sets out tax exemptions accorded

diplomats• Article 36

– Provides exemptions from customs duties on diplomatic imports

• Article 37– Establishes code for treatment of families

and junior staff of mission

Diplomatic Relations Act of 1978

• Delayed codification in U.S.– Justice Department’s conclusion

• President Jimmy Carter’s remarks

“Gap-fillers” to the Vienna Act

• Requirement that foreign diplomats carry automobile liability

• Allowance of “direct action” against insurance carrier

Levels of Immunity

• Higher rank = greater immunity– Criminal prosecution & civil lawsuits

• Lower rank = protection only for actions done within scope of official duties– Testifying in court regarding actions of co-

workers

DIPLOMATIC IMMUNITY

Application of the1961 Convention

Abuse Of Domestic Helpers

July 2008 GAO report: 42 cases of abuse by

diplomats over 8 years but said that the actual number was probably

higher!

Others That Got Away…

• Diplomats who didn’t pay parking tickets

• Rapists• Child Molesters

What Can Be Done???

• Foreign government may waive Diplomatic Immunity

• Foreign government may prosecute the diplomat in the home state

• Liability insurance• Individuals may stop providing services• Victim compensation funds

Test Your Knowledge On:

Diplomatic Immunity

According to the United States Department of State practice and guidelines . . . .

Diplomatic Immunity Quiz – U.S. Practice

The British Ambassador goes for a drive around D.C. with her 15-year-old daughter, and lets her daughter drive. The daughter runs a red light doing 90 miles an hour, and is stopped by Police.

Q: Is the daughter immune from arrest?

Diplomatic Immunity Quiz – U.S. Practice

The British Ambassador goes for a drive around D.C. with her 15-year-old daughter, and lets her daughter drive. The daughter runs a red light doing 90 miles an hour, and is stopped by Police.

Q: Is the daughter immune from criminal prosecution?

Diplomatic Immunity Quiz – U.S. Practice

The British Ambassador and her daughter go for a drive around D.C. The vehicle is driven by the Embassy’s official chauffeur. The chauffeur runs a red light doing 90 miles an hour.

Q: Is the chauffeur immune from prosecution?

Diplomatic Immunity Quiz – U.S. Practice

The British Ambassador and her daughter go for a drive around D.C. The vehicle is driven by the Embassy’s official chauffeur. The chauffeur runs a red light doing 90 miles an hour.

Q: In the chauffeur’s prosecution, can the

Ambassador be subpoenaed to give evidence?

Diplomatic Immunity Quiz – U.S. Practice

The British Ambassador to the U.S. brings his 18-year-old son to the U.S. to attend college. The Police believe that the son’s college apartment holds evidence of a drug smuggling cartel.

Q: Can the Police obtain a search warrant and search the apartment?