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Sovereign & Diplomatic Immunity: An Overview

Adapted from a CLE I prepared for and presented to the Garland R. Walker American Inn of Court on Tuesday November 10, 2009

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.

DIPLOMATIC IMMUNITY

Background:

The 1961 Convention

and the

Diplomatic Relations Act of 1978

The Vienna 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

Cold War Impact Yugoslavian push East v. West tensions Selection of Vienna History Neutrality 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 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 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 Responsible for gap fillers to Vienna - 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

Application of the 1961 Convention to abused workers

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 else 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

Diplomatic Immunity: applied knowledge According to the United States Department of State practice and guidelines . . . . 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? 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 daugher immune from crimnal prosecution? 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? 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? 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?

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