DIPLOMATIC IMMUNITIES. - Customary rules of general international law impose on States a series of obligations, the content of which takes concrete form in a special treatment to be accorded, within individual domestic legal systems, to the members of diplomatic missions, in consideration of their status as representatives of a foreign State. This special treatment, commonly expressed in the formula diplomatic immunities, has its rationale in the necessity of permitting the diplomatic representatives of foreign States to exercise their functions freely, without these being in any way hindered by the activity of the organs of the State in which they must be carried out or of individuals present on its territory. An identical guiding principle has, for a long time now, determined the extension of the benefits of immunity also to the family members of diplomats and to persons taken into their service. The citizenship of the beneficiary of the immunity becomes relevant only when the latter holds the nationality of the State in which he must exercise his function, and in that case it gives rise to certain restrictions of diplomatic immunities.
As regards the persons in whose favor the special treatment is provided, one may distinguish a direct immunity, based on the status of determined organs of a foreign State (diplomatic agents [v.], official personnel of the mission, military attachés) held by the members of the mission, and a reflected immunity, which draws its rationale from a family tie (spouses and dependent children) or from an employment relationship (private secretaries, domestic servants, chauffeurs, etc.), which places the beneficiaries in a particular relation with those who are invested with direct immunity. The consequence of this distinction is that, whereas for the beneficiaries of direct immunity the special treatment begins with the person's assumption of the status of organ of the foreign State and ceases with its loss, for the second category regard must be had to the establishment and the termination of the family tie or of the employment relationship. However, immunities are also provided in favor of diplomatic personnel to protect their transit through third States, in order to reach the State to which they are going to be accredited, and for their return to their country of belonging, even though, strictly speaking, in both cases the personnel is not juridically invested with the status to which international law attaches the existence of a special treatment.
The immunities generally recognized have the following content: a) personal inviolability, for whose protection the State in whose territory the beneficiary is located must prevent and refrain from committing acts injurious to his person and his liberty (detentions, arrests, searches, etc.); b) inviolability of the premises in which the diplomatic agent is located, by means of abstention from and prevention of acts of authority; c) immunity from jurisdiction (principally for acts performed in a private capacity), which is absolute for criminal jurisdiction and relative for civil jurisdiction, inasmuch as immunity from the latter does not concern disputes in which the beneficiary is the plaintiff, and does not normally extend to real actions, possessory actions and those relating to successions opened in the territory of the State, while some uncertainty is found in case law as regards counterclaims; d) fiscal exemptions, normally limited to personal direct taxes and not extended to subordinate personnel; e) inviolability of correspondence sent by the diplomatic agent, or addressed to him, or carried by the courier (v. CORRIERI DIPLOMATICI). The existence is often affirmed, especially in practice and in less recent writers, also of the so-called droit du culte, consisting in the faculty granted to diplomatic agents to have celebrated in their own premises the religious functions of the official worship of the State to which they belong. On the other hand, the existence of a general rule providing for the so-called right of asylum (consisting in the faculty of the diplomatic agent to grant immune asylum to anyone, prosecuted for political offenses, who seeks refuge in his premises) is to be denied, whose eventual recognition has often been the object of lively controversies; a particular custom in the affirmative sense, confirmed by the Havana Convention of 20 February 1928, is nonetheless in force among certain States of Latin America.
Special rules on the immunity of diplomatic agents are contained in international agreements: thus, for example, under Art. 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 though their States are not in diplomatic relations with Italy.
The rules of general international law on diplomatic immunities are sometimes invoked in order to determine the special treatment provided in favor of persons invested with determined functions at international bodies (v., for example, Art. 19 of the Statute of the International Court of Justice, as regards the treatment of the judges elected to be members thereof, as well as, also for the officials generally of the Court, the exchange of notes dated 26 June 1946 between the International Court of Justice and the Netherlands; various references in Arts. 3 sec. 10, 4 sec. 11, 5 sec. 19, 6 sec. 22, 7 sec. 27 of the Convention on the Privileges and Immunities approved by the General Assembly of the United Nations on 13 February 1946, inasmuch as the references discernible therein are particular and not general like the one contained in Art. 7 of the Covenant of the League of Nations; Art. 5 sec. 15 of the Headquarters agreement, stipulated on 26 June 1947 between the United States and the UN for the treatment of permanent representatives and of other persons of the delegations of the member States of the UN and of specialized agencies).
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Antonio Malinoppi