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Published online by Cambridge University Press: 28 March 2017
1 Report of the International Law Commission Covering the Work of Its Sixth Session June 3–July 28, 1954, U.N. Gen. Assembly, 9th Sess., Official Records, Supp. No. 9 (A/2693), sec. 73; 49 A.J.I.L. Supp. 43 (1955). For an inter-war codification, see Convention on Diplomatic Officers, adopted at Havana, 1928, 4 Hudson, International Legislation 2385; also Harvard Research in International Law, Draft Convention on Diplomatic Privileges and Immunities, 26 A.J.I.L. Supp. 15 (1932). Although considered, codification of the topic was not undertaken under the auspices of the League of Nations; see Yuen-Li Liang, “Notes on Legal Questions Concerning the United Nations: Diplomatic Intercourse and Immunities,” 47 A.J.I.L. 439–448 (1953).
2 Becker, “The State Department White List and Diplomatic Immunity,” ibid. 704–706.
3 Trost v. Tompkins, 44 A. 2d 226 (1945) ; Carrera v. Carrera, 174 F. 2d 496 (1949) ; Haley v. State, 88 A. 2d 312 (1952).
4 22 U. V. S. Code sees. 252–254 (1952 ed.). Under sec. 253, the bringing of specified legal action against servants is made criminally punishable; by sec. 254, however, no prosecution under sec. 253 is to be had unless the name of the servant is certified to the Secretary of State and published. The White List contains the names of employees in foreign embassies and legations furnished to the Department of State.
5 Re The Amazone, [1940] 1 All E.R. 269.
6 4 Burr. 2015; emphasis supplied. Mr. Becker also remarks that the English Reports contain “no case putting in issue” the section of the Statute of Anne parallel to sec. 254 of Title 22, U. S. Code. But 1 Comyn’s Digest 1st American ed., 1824, pp. 574–575, cites about a dozen English cases in support of the rules: (1) as to privilege from arrest, registration of the servant’s name is not necessary; and (2) even though registered, a person is not within the act if he is not actually a servant. Some of the cases cited, however, provide doubtful support for the rules stated.
7 1 Ops. Att’y Gen. 26 (1792). Randolph’s opinion is cited in 1 Wharton, Digest 639 (2d ed.); and in 4 Moore, Digest 653. Also, in U. S. v. Lafontaine, Fed. Case 15,550 (1831), an indictment for assault and battery against the cook of the chargé of Norway and Sweden was quashed, without, apparently, any inquiry by the court as to whether the cook was registered with the Department of State.
8 See Hopkins v. DeRobeck, 3 T.R. 79 (1789); U. S. v. Jeffers, Fed. Case 15,471 (1836).
9 See particularly, Wheaton, Elements of International Law (Dana’s ed., 1866), sec. 226; much in the same tenor are Lawrence, The Principles of International Law 316 (6th ed., 1915); and Hall, International Law 190 (7th ed., 1917).
10 Case cited above, note 3. Moore, op. cit. 658, refers to the case of Griffin Ball (1838) in which Secretary Forsyth seems to have taken a similar stand. 4 Hackworth, Digest 429–430, is not perfectly clear on the point. It states that diplomatic immunity is not limited only to those agents appearing in the Diplomatic List, but is extended to all recognized as having diplomatic status; however, no mention is made of the possibility that servants not on the White List might also be entitled to immunity.
11 22 U. S. Code see. 252 (1952 ed.).
12 It may be noted that the court did not accept listing in the White List as conclusive of status in the Trost case (cited above, note 3) and denied immunity. In the Haley case, heavy emphasis was placed on the Department’s certificate.
13 See U. S. v. Coplon and Gubitchev, 84 F.S. 472 (1949); motion for reargument, 88 F.S. 915 (1950). After entering the United States, Gubitchev entered the service of the United Nations, but his name was not submitted to the United States under the provisions of the Headquarters Agreement.
14 22 Department of State Bulletin 445 (1950).
15 See Harvard Draft Convention on Diplomatic Privileges and Immunities, loc. cit. (note 1 above), p. 77.
16 Practice varies as to whether the judiciary or the executive of the receiving state shall have the determining voice in passing upon a claim for immunity placed before its courts; see A. B. Lyons, “Conclusiveness of the Statements of the Executive—Continental and Latin-American Practice,” British Year Book of International Law, 1948, pp. 180–210. The Harvard Draft proposes (Art. 11) that the sending state furnish (as is frequently done in practice) an official list of personnel to the receiving state on the latter’s request. The Draft does not attempt to fix the legal consequences of such a list.
17 Case of Mohammed Lajed Ahmed, 1951; 49 A.J.I.L. 100 (1955).
18 Mongillo v. Vogel, 84 F. Supp. 1007 (1949).
19 Lagos Carmona v. Baggianini, 1953; 49 A.J.I.L. 101 (1955).
20 Carrera v. Carrera, 174 F. 2d 496 (1949).
21 Soc. Arethusa Film v. Reist, 1953; 49 A.J.I.L. 102 (1955)
22 For example, the Harvard Draft proposes exemption from local jurisdiction for members of diplomatic missions and their families (Art. 19), non-liability for official acts in the case of members of missions and administrative personnel (Art. 18); but no immunities whatever in the case of service personnel (Art. 23 and Comment). This proposal would, acording to the Harvard Research, provide an “adequate minimum standard of treatment.”
23 In Agostini v. De Antueno, 99 N.Y.S. 2d 245 (1950), 45 A.J.I.L. 201 (1951), a New York court asserted jurisdiction in a suit to recover realty against the Third Secretary of the Permanent Delegation of Argentina to the United Nations, notwithstanding that the secretary was, according to the Headquarters Agreement, entitled to the “same privileges and immunities, subject to corresponding conditions and obligations,” as diplomatic envoys accredited to the United States. The court reasoned: that in matters of historical local concern the Federal treaty power was constitutionally limited; that a suit for recovery of realty was such a matter of local concern; that real property of a diplomat, “not pertaining to his diplomatic status, is subject to local laws”; and that the court’s jurisdiction was “basically in rem, and not in personam.” This case may be compared with Comina v. Kite, Annual Digest, 1919–22, No. 202, involving a suit for release of an apartment against an employee of the American Embassy in Rome. The United States informed the Italian Government that an Italian diplomatic official would be exempt in such a matter in the United States, but did not insist that Kite claim exemption. The court at Rome maintained that it was not necessary for acts done outside the public functions of a diplomat to be protected by the principle of immunity. See also 4 Hackworth, Digest 548–549. This decision was apparently rejected in Lurie v. Steinmann, Annual Digest, 1927–28, No. 246.
24 The position is that of Josef L. Kunz, “Privileges and Immunities of International Organizations,” 41 A.J.I.L. 838 (1947). But in Castiglioni v. Federal People’s Republic of Yugoslavia, 1952, 49 ibid. 99 (1955), the tribunal of Rome apparently concluded that a diplomatic agent could be summoned to answer as representative of his government in litigation under private law. However, in an earlier decision, Case of Castiglioni, 1951, noted ibid., p. 100, the tribunal at Milan seems to have arrived at the opposite conclusion.
25 In Tsiang v. Tsiang, 86 N.Y.S. 2d 556 (1949), emphasis added. Also to be noted is the attitude of Justice Frankfurter in his handling of the question of sovereign immunity from suit in National Bank v. Republic of China, 348 U. S. 356 (1955), 49 A.J.I.L. 405 (1955).
26 See Josef L. Kunz, “Privileges and Immunities of International Organizations,” 41 A.J.I.L. 842 (1947), who has called for “a new law independent from that of the privileges of diplomatic agents.”
27 Particularly provisions stipulating that certain categories of international officials shall enjoy the privileges and immunities accorded to diplomatic representatives of comparable rank; see Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, Art. 12, T.I.A.S. No. 2992; 48 A.J.I.L. Supp. 153 (1954); General Convention on the Privileges and Immunities of the United Nations, Sec. 11 (f), (g), See. 19, Sec.22 (f), 1 U.N.T.S. 15; 43 A.J.I.L. Supp. 1 (1949).
28 See General Convention on the Privileges and Immunities of the United Nations (cited note 27 above), Sees. 14, 20, 23; Agreement on the Status of the North Atlantic Treaty Organization, etc. (cited ibid.), Arts. 15, 22; Protocol on the Privileges and Immunities of the Community (European Coal and Steel), Art. 13, English text published by U. S. Economic Cooperation Administration (Govt. Printing Office, 1951). Note also the provision concerning reciprocity in the International Organizations Immunities Act, Sec. 9, 59 Stat. 673 (1945) ; 40 A.J.I.L. Supp. 85 (1946).
29 Note the various provisions concerning immunity from legal process in respect of words spoken or written in the performance of official duties; Agreement on the Status of the North Atlantic Treaty Organization, etc. (cited note 27 above), Arts. 13 (b), 16, 18 (a), 21 (b), 23 (a); General Convention on the Privileges and Immunities of the United Nations (cited ibid.), Secs. 12, 22 (b). The Protocol on the Privileges and Immunities of the Community (European Coal and Steel) (cited note 28 above) provides in Art. 9 that during sessions of the Assembly its members shall enjoy in their national territories the rights and immunities granted to members of Parliament. The problem of powers is raised in the Coal and Steel Community Treaty, 46 A.J.I.L. Supp. 107–148 (1952), in Art. 86, which provides that certain officials of the High Authority shall have in the territories of the members the rights and powers granted to national tax service officials.
30 Lawrence Preuss, “Immunity of Officers and Employees of the United Nations for Official Acts: The Ranallo Case,” 41 A.J.I.L. 559, note 17 (1947).
31 Progressive development and codification are not necessarily mutually exclusive processes; see Survey of International Law in Relation to the Work of Codification of the International Law Commission (1949), pp. 3–18 (A/CN.4/1/Rev. 1).