DIPLOMATIC IMMUNITY
A principle of INTERNATIONAL LAW that provides foreign diplomats with protection from legal action in the country in which they work.
Established in large part by the Vienna conventions, diplomatic immunity is granted to
individuals depending on their rank and the amount of immunity they need to carry out
their duties without legal harassment. Diplomatic immunity allows foreign representatives
to work in host countries without fully understanding all the customs of that country. However, diplomats are still expected to respect and follow the laws and regulations of their host countries; immunity is not a license to commit crimes.
In the United States, several levels of immunity are granted: the higher the rank, the greater the immunity. DIPLOMATIC AGENTS and their immediate families have the most protection and are immune from criminal prosecution and
civil lawsuits. The lowest level of protection is
granted to embassy and consular employees,
who receive immunity only for acts that are part
of their official duties—for example, they can-
not be forced to testify in court about the actions
of the people they work with. The Diplomatic
Relations Act of 1978 [22 U.S.C.A. § 254a et
seq.] follows the principles introduced by the
Vienna conventions. The United States has had a
tendency to be generous when granting diplo-
matic immunity to visiting diplomats because a
large number of U.S. diplomats work in host
countries less protective of individual rights. If
the United States were to punish a visiting diplo-
mat without sufficient grounds, U.S. representa-
tives in other countries could receive harsher
treatment.
In the United States, if a person with immu-
nity is alleged to have committed a crime or
faces a civil lawsuit, the DEPARTMENT OF STATE
alerts the government that the diplomat works
for. The Department of State also asks the home
country to waive immunity of the alleged
offender so that the complaint can be moved to
the courts. If immunity is not waived, prosecu-
tion cannot be undertaken. However, the
Department of State still has the discretion to
ask the diplomat to withdraw from her or his
duties in the United States. In addition, the
diplomat’s visas are often canceled, and the diplomat and her or his family are barred from
returning to the United States. Crimes committed by members of a diplomat’s family can also result in dismissal.
Abuse of diplomatic immunity was made
more visible by media coverage in the early
1990s. The abuse spans a variety of activities,
ranging from parking violations to more serious
criminal behavior such as domestic abuse and
rape. In February 1995 Mayor Rudolph Giuliani
of New York City forgave $800,000 in parking
tickets accumulated by foreign diplomats.
Although no clear reason was given, the action,
which was perhaps meant as a show of goodwill,
sent a message to visiting diplomats that the U.S.
government may be willing to allow diplomats
greater leniency than its own private citizens.
This is a good example of how some diplomatic
debts have either been erased or not collected.
However, outstanding debts may not be the
worst illustration of how diplomatic immunity
can be abused.
Diplomats and their families have also been
known to use diplomatic immunity to avoid
prosecution for criminal behavior. For example,
in a 1983 case the New York City Police Depart-
ment suspected a diplomat’s son of 15 different
rapes. The son was allowed to leave the United
States without ever being taken to court because
he claimed diplomatic immunity. If diplomatic immunity is used as a shield, the police cannot prosecute, no matter how serious the crime may be.
U.S. citizens and businesses are often at a dis-
advantage when filing civil claims against a diplo-
mat, especially in cases of unpaid debts, such as
rent, ALIMONY, and CHILD SUPPORT. In the
summer of 1994 U.S. diplomat Victor Marrero
reportedly complained to the UNITED NATIONS
secretariat that foreign diplomats’ debts in the
United States were $5.3 million. The New Yorker
later reported that a well-informed source had
said the figure had risen “closer to $7 million.”
The bulk of diplomatic debt lies in the rental
of office space and living quarters. Individual
debts can range from a few thousand dollars to
$1 million in back rent. A group of diplomats
and the office space in which they work are
referred to as a mission. Creditors cannot sue
missions individually to collect money they owe.
Landlords and creditors have found that the
only thing they can do is contact a city agency to
see if they can try to get some money back. They
cannot enter the offices or apartments of diplo-
mats to evict them because the Foreign Sover-
eign Immunities Act says that “the property in
the United States of a foreign state shall be
immune from attachment, arrest and execution”
(28 U.S.C.A. § 1609). This has led creditors who
are owed money by diplomats to become more
cautious about their renters and to change their
rental or payment policies. For example,Milford
Management, a New York-based company that
rents deluxe apartments, is owed more than
$20,000 in back rent from diplomats from five
different countries. Milford and other creditors
have created their own “insurance” policies by refusing to rent to foreign missions unless there is a way of guaranteeing payment, such as collecting money in advance.
The issue of abusing diplomatic immunity
in family relations, especially alimony and child
support, has become enough of a widespread
problem that it prompted discussion at the 1995
United Nations Fourth World Conference on
Women, in Beijing. Historically, the United
Nations has not gotten involved with family dis-
putes and has refused to garnishee the wages of
diplomats who owe money for child support,
citing SOVEREIGN IMMUNITY.However,in Sep-
tember 1995, the incumbent head of legal affairs
for the United Nations acknowledged there was a
moral and legal obligation to take at least a par-
tial responsibility in family disputes. Deadbeat
“diplodads” were increasing in numbers in the
United Nations: several men who had left their
wives and children were still claiming U.N.
dependency, travel, and education allowances for
their families even though they are no longer
supporting those families.One U.S. woman, Bar-
bara Elzohairy, and her daughter were threatened
with eviction from their New Jersey apartment
because they did not pay their rent. Their reason?
Elzohairy’s husband, a U.N. representative from Egypt, refused to pay her $16,000 in courtordered support. The United Nations told diplomats
they must meet their moral obligations, but
there were no consequences if they did not.
DIVORCE is difficult for the spouses of foreign
diplomats, as illustrated in the case of Fernandez
v. Fernandez, 208 Conn. 329, 545 A.2d
1036, 57 USLW 2115 (Conn., Jul 19, 1988) (NO.
13283). This case involved a U.S. citizen, Barbara
Fernandez, who wanted a divorce from her husband,
Antonio Diende Fernandez, a U.N. representative
from the Republic of Mozambique.
Along with the divorce, Fernandez wanted a
monetary settlement and property rights to the
home the couple owned in a New York suburb.
Her husband asked that the courts dismiss her
claim on the grounds that he had diplomatic
immunity. Under the trial court’s interpretation
of the Vienna Convention, a U.S. citizen who
marries a foreign diplomat is married until
either the diplomat dies or the diplomat’s country
grants permission for divorce proceedings.
The Republic of Mozambique gave the court
permission to grant the divorce but would not
allow the court to make a decision on Fernandez’s
property or monetary claims. The case
went on to the Connecticut Supreme Court,
which dissolved the marriage and allowed Fernandez
to claim property rights under article 31
of the Vienna Convention.
Article 31 gives diplomats immunity from
all civil cases except for those that involve “private
immovable property.” The Connecticut
Supreme Court interpreted that exception to
apply to Fernandez’s claim on the home, which
was valued at more than $8 million.Article 31 of
the Vienna Convention does not allow the “private
residence of a diplomatic agent” to be
included in a civil suit. However, the Connecticut
Supreme Court declined to consider this
article as a form of defense for Fernandez’s husband.
The Vienna Convention specifically does
not allow exceptions for spouses to seek monetary
compensation in divorce proceedings, so
Fernandez was not granted any money by the
Connecticut court.
The Fernandez decision did not settle all the
issues revolving around dissolution of diplomats’
marriages, such as whether U.S. courts can
grant a divorce without the permission of the
diplomat’s country. Critics of Fernandez say it
might cause foreign countries to think twice
before granting permission to dissolve marriages
because property claims can then also be
brought against the diplomats.
FURTHER READINGS
Ashman, Chuck, and Pamela Trescott. 1987. Diplomatic
Crime.Washington, D.C.: Acropolis.
—. 1986. Outrage: The Abuse of Diplomatic Immunity.
London:W. H. Allen.
Barker, J. Craig. 1998. “State Immunity, Diplomatic Immunity
and Act of State: A Triple Protection Against Legal
Action?” International and Comparative Law Quarterly
47 (October): 950–8.
Denza, Eileen. 1998. Diplomatic Law: A Commentary on the
Vienna Convention on Diplomatic Relations. 2d ed.
Oxford: Clarendon Press,New York: Oxford Univ. Press.
Felice, Phil. 1998. “Diplomatic Immunity: Time for a
Change? Touro Law Review 15 (fall): 327–46.
Opara, Victor Nnamdi. “Sovereign & Diplomatic Immunity
as Customary International Law: Beyond R. v. Bow
Street Stipendiary Magistrate & Others, ex parte Pinochet
Ugarte.” Wisconsin International Law Journal 21
(spring): 255-297 .
United States Department of State. 1998. Consular Notification
and Access: Instructions for Federal, State, and Local
Law Enforcement and Other Officials Regarding Foreign
Nationals in the United States and the Rights of Consular
Officials to Assist Them.Washington, D.C.: U.S. Department
of State.
CROSS-REFERENCES
Ambassadors and Consuls.
