IMMUNITÀ DIPLOMATICHE
Customary norms of general international law impose upon States a series of obligations, the content of which consists in a special treatment to be accorded, within their domestic legal systems, to the members of diplomatic missions, by reason of their status as representatives of a foreign State. This special treatment, commonly expressed in the formula "diplomatic immunities," is justified by the need to enable the diplomatic representatives of foreign States to exercise their functions freely, without any hindrance from the activities of the State organs in whose territory they must operate or from individuals present in that territory. A similar guiding principle has long determined the extension of immunity benefits also to the families of diplomats and to persons employed in their service. The nationality of the beneficiary of the immunity is relevant only when the individual possesses the nationality of the State in which he is to exercise his function, in which case it entails certain restrictions on diplomatic immunities.
With regard to the persons for whom this special treatment is provided, a distinction can be made between direct immunity, based on the status of certain organs of a foreign State (diplomatic agents [v.], official personnel of the mission, military attachés) held by the members of the mission, and indirect immunity, which derives from a family bond (spouses and dependent children) or from an employment relationship (private secretaries, domestic staff, chauffeurs, etc.), placing the beneficiaries in a particular relationship with those who are invested with direct immunity. A consequence of this distinction is that, whereas for the beneficiaries of direct immunity the special treatment begins with the assumption by the individual of the status of an organ of the foreign State and ceases with its loss, for the second category regard must be had to the formation and termination of the family bond or employment relationship. However, special immunities are also granted to diplomatic personnel to protect their transit through third States for the purpose of reaching the State to which they are accredited or for their return to their country of origin, even though, strictly speaking, in both cases the personnel are not legally invested with the status to which international law attaches the existence of special treatment.
The immunities generally recognized have the following content:
a) personal inviolability, for the protection of which the State in whose territory the beneficiary is located must prevent and refrain from committing acts that infringe upon the person and liberty of the beneficiary (arrests, detentions, searches, etc.);
b) inviolability of the premises in which the diplomatic agent resides, by abstaining from and preventing acts by authorities;
c) immunity from jurisdiction (primarily for acts performed in a private capacity), which is absolute for criminal jurisdiction and relative for civil jurisdiction, in that immunity from the latter does not apply to cases in which the beneficiary is the plaintiff, nor does it normally extend to real actions, possessory actions, or those relating to successions opened in the territory of the State; some uncertainty is noted in jurisprudence regarding counterclaims;
d) tax exemptions, normally limited to personal direct taxes and not extended to dependent personnel;
e) inviolability of correspondence sent by the diplomatic agent or addressed to him, or carried by a courier (v. DIPLOMATIC COURIERS).
It is often asserted, especially in practice and among less recent writers, the existence of the so-called *droit du culte*, consisting in the faculty granted to diplomatic agents to have religious services of the official cult of the State to which they belong celebrated in their residence. On the other hand, the existence of a general norm providing for the so-called right of asylum (consisting in the faculty of the diplomatic agent to grant asylum immune from prosecution to anyone sought for political offenses who seeks refuge in his residence) must be denied; its possible recognition has often been the subject of lively controversy. A particular custom in the affirmative sense, concerning the form of the Havana Convention of February 20, 1928, is, however, in force among some Latin American States.
Special norms on the immunity of diplomatic agents are contained in international agreements: thus, for example, under Article 12 of the Lateran Treaty, the Italian State is obliged to recognize the immunities provided by general international law in favor of the members of diplomatic missions accredited to the Holy See, who may reside in Italian territory even if their States do not have diplomatic relations with Italy.
The norms of general international law on diplomatic immunities are sometimes invoked to determine the special treatment granted to persons invested with certain functions within international organizations (v. , for example, Article 19 of the Statute of the International Court of Justice regarding the treatment of judges elected to serve on it, as well as, for the officials of the Court in general, the exchange of notes dated June 26, 1946, between the International Court of Justice and the Netherlands; various references in Articles 3, section 10; 4, section 11; 5, section 19; 6, section 22; 7, section 27 of the Convention on Privileges and Immunities approved by the United Nations General Assembly on February 13, 1946, although the references therein are particular rather than general, as in Article 7 of the Covenant of the League of Nations; Article 5, section 15 of the Headquarters Agreement concluded on June 26, 1947, between the United States and the UN regarding the treatment of permanent representatives and other persons of delegations of UN member States and specialized agencies).