IMMUNITÀ DIPLOMATICHE. – Customary norms of general international law impose upon States a series of obligations, the content of which takes concrete form in special treatment to be accorded, within the individual domestic legal systems, to the members of diplomatic missions, in view of their status as representatives of a foreign State. This special treatment, commonly expressed by the formula i. d., finds its justification in the need to enable the diplomatic representations of foreign States to exercise their functions freely, without these being obstructed in any way by the activity of the organs of the State in which they must be carried out, or by individuals present in its territory. The same guiding principle determined, long ago, the extension of the benefits of immunity also to diplomats’ family members and to persons employed in their service. The beneficiary’s nationality is relevant only when he or she possesses the nationality of the State in which the function is to be exercised; in that event, it entails certain restrictions on i. d.
With regard to the persons for whose benefit the special treatment is provided, a distinction may be made between direct immunity, based on the status as specific organs of a foreign State (diplomatic agents [v.], official personnel of the mission, military attachés) held by members of the mission, and indirect immunity, which derives its justification from a family relationship (spouses and dependent children) or from an employment relationship (private secretaries, domestic servants, chauffeurs, etc.), placing the beneficiaries in a particular relationship with those invested with direct immunity. The consequence of this distinction is that, whereas for beneficiaries of direct immunity the special treatment begins when the person assumes the status of an organ of the foreign State and ceases when that status is lost, for the second category regard must be had to the establishment and termination of the family or employment relationship. Immunities are nevertheless also accorded to diplomatic personnel to protect their transit through third States in order to reach the State to which they are to be accredited, and for their return to their country of origin, although, strictly speaking, in neither case is the personnel legally invested with the status to which international law attaches the existence of special treatment.
The generally recognized immunities 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 harmful to his or her person and liberty (detention, arrest, searches, etc.); b) inviolability of the premises in which the diplomatic agent is located, through the abstention from and prevention of acts by the authorities; c) immunity from jurisdiction (principally with respect to acts performed in a private capacity), which is absolute with regard to criminal jurisdiction and relative with regard to civil jurisdiction, since immunity from the latter does not concern disputes in which the beneficiary is the plaintiff, nor does it normally extend to real actions, possessory actions, or actions relating to successions opened in the territory of the State, while some uncertainty appears in the case law concerning counterclaims; d) tax exemptions, normally limited to personal direct taxes and not extended to dependent personnel; e) inviolability of correspondence sent by or addressed to the diplomatic agent, or carried by the courier (v. CORRIERI DIPLOMATICI). The existence of the so-called droit du culte is also often affirmed, especially in practice and by earlier writers; it consists in the power granted to diplomatic agents to have religious services of the official religion of the State to which they belong celebrated at their premises. The existence, however, of a general rule providing for the so-called right of asylum must be denied (consisting in the power of the diplomatic agent to grant immune asylum to anyone prosecuted for political offenses who seeks refuge at his or her premises), whose possible recognition has often been the subject of heated controversy; a particular custom in the affirmative sense, confirmed by the Havana Convention of 20 February 1928, is nevertheless in force among certain Latin American States.
Special rules concerning 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 for by general international law in favor of the members of diplomatic missions accredited to the Holy See, which may reside in Italian territory even though their States are not in diplomatic relations with Italy.
The rules of general international law concerning i. d. are sometimes invoked to determine the special treatment accorded to persons entrusted with particular functions at international organizations (v. Netherlands; League of Nations; Article 5 section 15 of the Headquarters agreement, concluded on 26 June 1947 between the United States and the UN concerning the treatment of permanent representatives and other persons belonging to the delegations of UN member States and specialized agencies).
la S. Sede, in Riv. di dir. proc. civ., 1932, p. 29 ff.; L. Oppenheim, International Law, I, 7th ed. edited by H. Lauterpacht, London, New York, Toronto 1948, p. 673 ff., and the bibliography cited there. Antonio Malinoppi