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Наркобароны, боссы, террористы и люди, занятые отмыванием криминальных денег, которым надоели перехваты и прослушивание их переговоров по сотовым телефонам, обратились к новейшему средству мгновенной передачи сообщений по всему миру – электронной почте.

Теперь, считали они, им уже нечего было опасаться, представ перед Большим жюри, услышать собственный записанный на пленку голос как доказательство давно забытого телефонного разговора, перехваченного спутником АНБ. Никогда еще получение разведывательной информации не было столь легким делом.

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(PDF) Vienna Convention on Diplomatic Relations () | Holger Hestermeyer – replace.me. Download konvensi wina 1986 pdf

 

Juliette McIntyre. Javier Couso ed. Odysseas Repousis. Ulrich G Schroeter. Tim Wood. Etienne Henry. Guilherme Del Negro. Andrew D Mitchell , Tania Voon. Marco Longobardo. Richard Xenophon Resch.

Odile Ammann. Log in with Facebook Log in with Google. Remember me on this computer. Enter the email address you signed up with and we’ll email you a reset link. Need an account? Click here to sign up. Download Free PDF. Christian Djeffal. Related Papers. European Journal of International Law A typology of multilateral treaty obligations: are WTO obligations bilateral or collective in nature.

Treaties on Transit of Energy via Pipelines and Countermeasures. All rights reserved. For Permissions, please email: journals. Oxford: Oxford University Press, ISBN: Berlin: Springer, Mark Villiger. Commentary on the Vienna Convention on the Law of Treaties. Leiden: Martinus Nijhoff, Abstract Commentaries on international law abound and proliferate. To reflect upon this trend in inter- national legal scholarship, three commentaries on the Vienna Convention on the Law of Treaties are reviewed.

As a scholarly genre, commen- taries form part of the legal culture of legal systems. They gained importance for international legal scholarship when inter- national law entered the process of codification.

Today, commentaries fulfil several functions in international legal discourse, the most important of which is that they structure this discourse. Digitization will seriously impact on all fields of scholarly publishing. The review concludes by discussing the possible changes in this scholarly genre. Those are accessibility, layout, referenc- ing, inclusion of other media, and the possibility of enhanced discourse within the commentary. EJIL , Vol.

Each chapter is nor- mally dedicated to the discussion of one legal provision. Commentaries form one genre of international legal scholarship, with others being essays, book reviews, treatises, and monographs.

The use of scholarly genres is a characteristic feature of the culture of the legal and scientific community. Each genre has specific features structuring and presenting the law. The scholarly form influences the way inter- national legal scholarship looks at the law, the questions it asks, and the answers it gives. The genres of legal scholarship evolve over time abreast of technological developments.

These commentaries add to an extensive literature gener- ally on the law of treaties,2 as well as on particular aspects of it. What is the significance of this genre of international law literature and how is it used by scholars? To answer these questions, the three commentaries under review will first be introduced, focussing on their structure, authors, and peculiarities.

Secondly, the content of the commentaries will be compared with each other with regard to three aspects which have attracted attention in recent years: the status and content of jus cogens norms, the ascertainment of the object and purpose of treaties, and the grounds of invalidity, termination, and suspension.

This comparison reveals the way in which commentaries as a genre present 1 The Oxford Commentaries on International Law website alone lists 15 commentaries: available at:, www. Frowein and W. Grote, K. Meljnik, and R. Pettiti and E. Decaux ed. Cot, A. Pellet, and M. Reuschle ed. Wagner, H. Raasch, and T. Karpenstein and F. Those were used in Anglo-American legal scholarship until the 19th century: see, e.

Blackstone, Commentaries on the Law of England — Cannizzaro ed. Hollis ed. Gardiner, Treaty Interpretation ; C. Commentaries on the Law of Treaties and deal with the law and contentious issues.

The review essay will conclude with a reflection on the history, presence, and future of commentaries in international law. With two volumes of over 2, pages written by over 80 authors, it is the longest of the three commen- taries under review. It also includes an article by article commentary on the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. While literal interpretation is part of each contribution to the commentary and the preparatory works are regu- larly mentioned, the authors try to carve out the object and purpose of each provision and to determine whether the respective norms constitute customary international law.

As far as the general structure is concerned, the individual contributions first reproduce the English version of the treaty text, followed by a table of contents and a bibliography. The second commentary under review was written by Eugen Villiger in The author, who has ploughed through the law of treaties in theory5 and practice,6 has produced a book of 1, pages.

Drafting history, practice of international courts and tribunals, and state practice are the most important contextual features beyond tex- tual analysis. The deliberations in the ILC as well as the negotiations at the Vienna Conference, being the preparatory works of the convention, are laid out and explained in great detail.

It includes the authentic English and French versions of each provision, as well as the non-authentic German text. This is followed by the relevant part of the ILC Draft Convention of which laid the basis for the later treaty. The bibliography contains a section with references to the relevant parts of the deliberations within the ILC and the negotiations at the Vienna Conference.

The sections usually begin with reference to the history and background of the respective provision of the VCLT. Then, the legal terms are interpreted, focussing on the text, but also taking into account scholarship and practice. If applicable, reservations by the states parties are mentioned.

The deliberations departed from the text the ILC had agreed on, while the delegations had the opportunity to propose amendments to the text. At the end of the section, the author often gives his appreciation of the relevant article in general terms.

Here he assesses the drafting of the provision at , pronounces upon the general significance of the provision at , or just summarizes content and history at Preparatory works, international practice, and jurisprudence are referred to in each contribution. The structure of the commentaries shows that special importance is attributed to systematic considerations as each article is related to other provisions of the treaty.

The vast majority of chapters address questions of the relationship between the individual treaty provisions. In this section, the provision is placed in the context of the other treaty provisions. It is followed by a section on the historical background and the negotiating history and an explanation of the elements of the provision.

Thus, all three commentaries are organized in a systematic way along a strict structure. Nevertheless, each commentary has specific strengths. A The Ascertainment of Jus Cogens Norms The insertion of Articles 53 and 64 into the VCLT has been considered one of the most important but also most controversial achievements of the law of treaties and international law more generally. See Jurisdictional Immunities of the State Germany v. Italy: Greece intervening , Judgment of 3 Feb. Commentaries on the Law of Treaties Article 53, which prescribes that treaties conflicting with jus cogens at the time of their conclusion are void, has no significant impact on international law since it is unlikely that treaties explicitly allow for the violation of prohibitions like those on slavery and torture that are currently acknowledged to constitute peremptory norms at Thus, what the VCLT says about the ascertainment of jus cogens may be more important than the effects it ascribes to its violation.

Each of the commentaries under review treats the significance of Articles 53 and 64 VCLT with respect to this issue. Anne Lagerwall Corten and Klein shows how the provisions evolved signifi- cantly in the course of the negotiations at — The final draft of the ILC did not include rules on ascertainment and leaned towards a natural law conception of jus cogens at Villiger rightly remarks that the determination of peremptory status according to the VCLT ought to proceed by formal rules, and that there is no material definition of jus cogens at In the course of this systematic and extensive inquiry, which is typical for commentar- ies, she raises the question whether general principles as defined in Article 38 ICJ Statute may be a source of jus cogens character at While Schmalenbach argues that they may, Villiger at and Lagerwall Corten and Klein at deny that possibility.

This literal argument can be countered with a reference to Article 38 1 c ICJ Statute, which provides that general principles ought to be recognized by civilized nations.

If one agrees that human rights can originate from general principles,10 it is hard to see why general principles cannot also be accepted and recognized as peremptory norms by the com- munity of states as a whole.

This issue shows how commentaries can further the inquiry into the law of treat- ies. The systematic treatment of provisions can bring new problems to light. But the focus on individual provisions may also restrict the perspective and the focus of the contributions. It is another typical feature of this genre that commentaries usually focus on the status quo of legal scholarship and have, therefore, only limited potential for innovation. Villiger provides a general definition according to which the object and purpose encompasses a combined whole of the term, including its aim, nature, and end.

This account rendered in more detail when he refers to the standards employed by the ILC in its project on reservations,13 which included a slightly modified version of the rules on interpretation as contained in Articles 31—32 VCLT at — In Corten and Klein, there are two accounts of the concept of object and purpose in the commentary.

They favour an objective approach to the determination of object and purpose, relying less on the intention of the parties, although they acknowledge that practice is not clear in this regard at In contrast, in his contribution on Article 19 Alain Pellet emphasizes the subjective element in the inquiry at Similarly, in their comment on Article 60, Bruno Simma and Christian Tams remark that the object and purpose ought to be determined in line with the rules of interpretation as contained in Article 31 VCLT.

Guideline 3. Marie-Pierre Lanfranchi interprets the use of the phrase in Articles19 and 41 agreements to mod- ify multilateral treaties between certain of the parties only as being more constrained than in Article 58 suspension of the operation of a multilateral treaty agreement between certain of the parties. From these observations it emerges that the commen- taries differ — sometimes quite substantially — in their treatment of key concepts of the law of treaties.

By contrast, the commentary of Corten and Klein allows for diverging opinions between the contributions and achieves coherence by other means such as cross-referencing. In relation to specific issues, authors tend not to leave open legal ques- tions, but to decide them in a determinative and authoritative manner.

If one approaches international law in geological terms look- ing for its different layers,14 these provisions evidence layers from times in which inter- national law was considered the law of contracts for states. Domestic rules on the promulgation of acts of parliament dif- fer substantially: acts of parliament have to be established in a specific procedure; fur- thermore, in some jurisdictions their conformity with a constitution is required.

And usually they do not lose their force if circumstances change. In the times when international law was seen as private law between princes or states, the major theoretical problem was the ontological question, i. Under the contractual model, civil law analogies provided for various grounds to terminate or avoid international treaties.

If it is true that international law has been changing its structure in the course of time and has become more like public law,16 this would suggest that the contractual analogies ought to be rethought.

What do the commentaries tell us about the grounds for invalidity and the direction in which the law of treaties has been heading? Article 56 VCLT presumes that a treaty which pro- vides neither for termination nor for denunciation or withdrawal is not subject to termination or withdrawal unless an implied right can be derived from the inten- tion of the parties or the nature of the treaty.

He argues for reframing the presumption in favour of an implied right of denunciation at — On a normative level, this account is based on a voluntaristic view of international law at — On a practical level, it sees advantages in attracting more parties to treaties without risking violations of the law, since the general right of denunciation allows the parties to escape from their obligations. In essence, Charistakis is reinforcing the old contractual and voluntaristic conception of international law.

Another provision originating in the domestic law of contracts is Article 62 VCLT, which is the provision on clau- sula rebus sic stantibus. This ground for termination has been contested, but was nevertheless included in the Vienna Convention.

All commentaries agree that the requirements for the application of Article 62 VCLT are very restrictive. Malcolm Shaw and Caroline Fournet Corten and Klein show that the customary status of the provision is unclear at — The compromise achieved in Vienna was drafted in such a complex manner that Villiger developed a questionnaire with the aim of restructuring the different parts of the provision into logical order at This questionnaire provides the reader with a new structure that helps him to check whether Article 62 VCLT applies.

This is a good example of how commen- taries rearrange the law in a way to make it better comprehensible. Thus, the mere possibility of exit may sta- bilize treaty relations. Yet, the high threshold established by Article 62 VCLT will render the possibility for exit very small. As the states rati- fied the VCLT, they accepted that treaty relations are to remain mostly stable.

It remains to be seen whether a public law concept of international law will make grounds for termination superfluous and redundant. In order to examine whether the grounds for termination and withdrawal have become outdated, one would have to look at the bigger picture of which the grounds for termination and with- drawal are only one part. And a restriction of these rights would make it neces- sary to increase participation rights.

More abstract considerations are, however, rarely found in commentaries. In lit- erary studies there has been a continuous reflection about the relationship between con- tent and form.

Thus, genres of scholarship to a certain extent influence the content of the law. While the invention of genres often serves certain purposes, after some time these forms may be used for reasons of tradition while their roots are forgotten. A school which was called the glossators,21 ranging from Irnerius to Accursius, annotated the Codex in a rather literal fashion: they explained the meaning of words, pointed to the use of the same words in other contexts, and tried to harmonize the meaning of words.

This school was triggered by the appearance of Roman law scriptures in the 11th century. Those were in effect word by word explanations. The scholars using this method were called glossators. As with the scholastic tradition in theology, the glossators shared the assumption that there is an inherent meaning in texts.

Pettersson, Verbal Art, , at ff. See the detailed description in H. Kunkel and M. For a detailed description see H. Lange and M. They accorded less importance to the text, their method allowed for much wider inferences. Adapting the Codex to present societal circumstances, they included broad and narrow interpretations as well as analogies in order to deal with problems occurring in practice.

They aimed at developing the purpose of the respective provi- sion instead of only focusing on its wording. The so-called standard commentaries of Bartolus de Sassoferato and Baldus de Ubaldis remained authoritative and influential until the 17th century. Those two ways of commenting, by the glossators and the commentators, could be taken as archetypes of commentaries on international law.

Authors of commen- taries can be seen to act like either glossators or commentators. Much reli- ance is placed on the text which is at the centre of the inquiry. The text is of central importance.

By contrast, the latter develop and influence the law to a great extent and can be described as lawmakers. In the law of nations, there have been only a few commentaries on legal trea- tises, while in the age of codification, scholars as well as collective bodies provided for detailed explanations of real or proposed codes. The issue of diplomatic privileges and immunities was originally included in a list of topics ripe for international regulation by the League of Nations Committee of Experts for the Progressive Codification of International Law and was the subject of a report and a questionnaire to the governments of members of the League.

It was however taken off that agenda by the Assembly of the League of Nations. The Committee of Experts also discussed a possible revision of the classification of diplomatic agents by the Congresses of Vienna and Aix-la-Chapelle, but regarded the topic as not realizable after receiving the answers to a questionnaire sent to governments.

However, consideration of the topic was postponed. At the Eighth Session the Secretariat submitted a substantial memorandum on existing principles, rules, and practice in the area in response to a request by the Special Rapporteur.

Nevertheless the topic was not discussed by the ILC until the Ninth Session in when the ILC adopted a provisional draft with commentaries and transmitted it, through the Secretary-General, to governments for their observations.

Having considered these, the Special Rapporteur submitted revised draft articles in That same year the Secretariat published a comprehensive collection of national laws and regulations documenting State practice in the field.

The draft articles were discussed by the ILC in the 10th Session. It was presided over by Alfred Verdross. Instead, it was incorporated in another optional protocol. Content of the Convention 1. Scope 10 While the Vienna Convention on Diplomatic Relations is one of the most important treaties in the field of diplomacy, it is not a comprehensive document regulating all questions arising in the area of diplomatic relations.

States and the ILC early on decided to limit the project and cover other issues separately. Special missions are the subject of a separate convention and permanent missions to international organizations are regulated by the headquarters agreements of those organizations International Organizations or Institutions, Headquarters. In recognition of the abundance of customary international law in the area and the vagueness of some of its provisions, the Convention explicitly states in its preamble that customary rules continue to govern questions not expressly regulated by it.

As the ICJ held in the United States Diplomatic and Consular Staff in Tehran Case United States of America v Iran [] ICJ Rep 3 , however, there is no room for applying additional rules of general international law in the area of defences against, and sanctions for, abuses of privileges and immunities of members of diplomatic missions.

In that respect diplomatic law itself provides the necessary tools, such as declaring a member of the diplomatic staff persona non grata or breaking off diplomatic relations Diplomatic Relations, Establishment and Severance; Self-Contained Regime. Summary of Contents 12 The Convention consists of a preamble and 53 articles.

The division of the Convention into sections and the article headings originally contained in the ILC draft were later deleted, but they can still serve as a rough point of orientation for the content of the agreement. Following and adapting that structure to the later changes, the Convention contains eight parts: the preamble, a first article containing definitions, a section on diplomatic relations in general Arts 2—20 VCDR , the important second section on diplomatic privileges and immunities Arts 21—40 VCDR , sub-divided into a subsection on premises of diplomatic missions and archives Arts 21—24 VCDR , one on facilitation of the work of the mission, freedom of movement and communication Arts 25—28 VCDR , and one on personal privileges and immunities Arts 29—40 VCDR , a third section on the conduct of the mission and of its members towards the receiving State Arts 41—42 VCDR , a fourth section on the end of the functions of a diplomatic agent Arts 43—46 VCDR , a fifth on non-discrimination and reciprocity Art.

The content of the Convention will be presented in more detail below, albeit with the necessary limitation to the most important issues under the Convention. Specific Legal Problems a Preamble 13 Apart from the already mentioned clarification of the relationship of the Convention to customary international law, the preamble also takes a stance concerning the rationale of diplomatic privileges and immunities.

The ILC had refrained from taking sides in that long-standing debate, with many members regarding the issue as one of mere theory. That theory guided the ILC in its drafting work. The statement also refers to a second theory according to which the mission represents the sending State. The long-cherished theory of extraterritoriality, however, is not mentioned and can be regarded as outdated. It also contains definitions of private servants and the premises of the mission.

Family members have long been granted privileges and immunities by States, but the Vienna Conference could not settle on a definition due to different concepts of family.

In practice, a core family is universally accepted such as a spouse not legally separated and minor children. Beyond that receiving States apply their own rules and settle disputed cases by negotiation. States establish diplomatic relations and permanent missions by consent of the sending and receiving State Art. It should be noted that there is no corresponding duty of the receiving State to receive envoys from any particular State.

A number of other entities also enjoy the right of legation, such as the Holy See. The Convention allows sending States to resort to multiple accreditations.

The more common form of multiple accreditation is to accredit a head of mission or members of the diplomatic staff to more than one State or a State and an international organization Art. The accreditation of one person as head of mission by several sending States permitted by Art. It left open the disputed question of the performance of consular functions by a diplomatic mission.

The Vienna Convention on Consular Relations regulates that issue. Procedures for notification vary from country to country. Scrutiny has increased since the early years of the Convention and acceptance of notifications has in some cases been denied; which might imply that acceptance of the notification is required.

That suggestion however finds no confirmation in the law. In the United Kingdom, correcting earlier cases stating that diplomatic agents must be accepted by the receiving State, the Court of Appeal in held that notification was not a condition precedent to the acquisition of the status of members of a mission Regina v Secretary of State for the Home Department, ex parte Bagga England and Wales Court of Appeal [11 April ] [] 1 AllER In such a case the sending State has to recall the person or terminate his or her functions in the mission.

If it does not do so within a reasonable time, the receiving State may refuse to recognize the person as a member of the mission Art. Declaration of members of the mission personae non gratae or unacceptable is the appropriate remedy provided in the Convention for the abuse of diplomatic privileges and immunities.

In the early years of the Convention such requests for recall were mostly issued for espionage in the receiving State Spies. In recent years an increasing number of diplomats have been declared personae non gratae for involvement in terrorist or subversive activities Terrorism. Thus, eg Argentina expelled Iranian diplomats linked to the bombing of the Argentine Jewish Mutual Aid Association in and Spain expelled six Iraqi diplomats after an illicit arms cache was revealed in the Iraqi embassy in Commonly, diplomats are also declared personae non gratae if they have committed serious criminal offences and the sending State does not waive immunity.

In the face of significant and highly publicized abuse of diplomatic privileges with respect to parking offences, the Government of the United Kingdom demanded the recall of a few offenders, but withdrew the request upon payment of the fines. While States at times resort to imposing such limits, the imposition usually provokes retaliation. The establishment of offices in locations away from the mission requires the prior express consent of the receiving State Art.

The Convention distinguishes between three classes of heads of mission—it being a matter of agreement between States which class the heads of their missions are to be assigned to Art. The Convention points out that the distinction only matters as to precedence and etiquette Art. Precedence within the classes is determined by the date and time the heads of mission took up their function except for the possibility of giving automatic preference, as is done in several States, to the representative of the Holy See Art.

Rules on the commencement of functions of heads of mission, contained in Arts 13, 17, and 18 VCDR, complement these rules on precedence and etiquette. The distinction between different classes of heads of mission stems from a time when only monarchies and the most important republics were regarded as having the right to send ambassadors and States struggled to gain precedence for their representatives over others.

Today, given the principle of sovereign equality of States enshrined in the United Nations Charter, all States can and do name ambassadors States, Sovereign Equality.

Heads of missions in other classes have disappeared almost entirely. The Convention only covers diplomatic privileges and immunities and not for example privileges and immunities of ministers for foreign affairs Heads of Governments and Other Senior Officials.

The provision prevents service of process. Suggestions made during the ILC discussions and the Vienna Conference to provide for exceptions allowing the receiving State to enter in emergencies were defeated. The Convention also provides for the inviolability of the archives and documents of the mission at any time and wherever they may be Art.

The question of diplomatic asylum Asylum, Diplomatic was not covered by the ILC, as States had made clear that they did not intend the topic to be treated.

The question thus remains subject to customary law, with the clear understanding that there is no exception to the inviolability of the premises of the mission. The inviolability of the mission is most stringently confirmed in practice, despite a number of violations in the decades since the adoption of the Convention. Nevertheless, there have been many instances of forcible entry by State agents, such as the entry by South Yemen troops of the Iraqi embassy in South Yemen in , or the US search of the residence of the Nicaraguan Ambassador in Panama in In when a policewoman protecting the Libyan mission in London during a demonstration by dissidents was shot from the premises of the mission, the House of Commons Foreign Affairs Committee discussed whether inviolability could be lost because of terrorist acts committed from the premises or because of self- defence.

Another significant threat to mission premises originates from non-State actors, in particular from terrorists. In that respect, the obligation to protect the mission is pertinent. While embassy sieges by revolutionaries or protesters peaked in , attacks continue to occur, as evinced by the —97 takeover of the residence of the Japanese Ambassador by the Tupac Amaru Revolutionary Movement, with the Movement taking hostages, the attacks on the US Embassies in Kenya and Tanzania by Al Qaeda and the six-hour siege of the Iraqi embassy in Berlin by Iraqi dissidents.

The —97 takeover was ended by Peruvian troops without prior information of the Japanese Government, for which the Japanese Government expressed gratitude, but also regret for not having been informed. The German police in entered the premises after having been granted permission by the Iraqi Government. Where receiving States are unable to protect mission premises, sending States at times hire security companies or, as a last resort, reduce staff or close missions Private Military Companies.

Much of the practice in that area had been regarded as based on courtesy rather than law. Article 23 VCDR exempts the sending State and the head of the mission from all taxes in respect of the premises of the mission other than those representing payment for services rendered. Equally exempt from dues and taxes are fees and charges levied by the mission in the course of its official duties Art. Diplomatic agents and other persons under Art. The latter phrase permits regulations to prevent abuse of the privilege, such as restrictions on the quantity of goods imported or the indication of a period within which resale is prohibited.

According to Art. The provision on the border treatment of articles of diplomatic agents is completed by a limited exemption of the personal baggage of a diplomatic agent from inspections Art. As with the diplomatic bag, airlines may nevertheless refuse to carry persons who do not agree to submit their baggage to examination.

Finally, Art. In retorsion, other States had adopted identical limitations for diplomats from these States. After the adoption of the Convention, Communist States continued their practice without protest and with continuing retorsion. With the end of the Cold War, however, restrictions have largely disappeared. The flexible language allows for the inclusion of modern means of communication such as email Internet. While this statement does not seem to be contested, even after the Cold War and even at times among friendly nations, States with the technological and administrative capacity have engaged and continue to engage in surveillance operations of diplomatic communication.

Some developed countries regarded their use as part of the right to free communication, while most other States insisted on the need for a permission of the receiving State with a view to their national law and international rules and regulations see also Telecommunications, International Regulation. The ILC draft did not mention wireless transmitters in the text of the provision, but noted in the comments that missions must apply for permission and, if the applicable national and international regulations are observed, should not be refused such permission.

The compromise achieved during the Conference provides for the need of the consent of the receiving State for installation and use of a wireless transmitter. The provision had been controversial during the negotiations because of the possibility of abuse.

Alternatives would have permitted inspections of the bag in case of serious grounds for suspicion and after communication with the mission concerned or allowed challenge and return of the bag. Some States formulated reservations to the protection of the diplomatic bag, provoking the objection of other States. Since the Convention came into force the diplomatic bag, as expected, has been the subject of abuse—including its use for the transport of weapons, narcotic drugs and psychotropic substances, or even persons.

Use of scanning technology has been controversial, given its ability to determine or damage the contents of the bag. However, it is essential in case of air transport. The ILC adopted draft articles on the topic, but the divergence of views on issues such as the inviolability of the bag and, indeed, the desirability of the project as a whole prevented their transformation into an agreement.

Accordingly, the provision was controversial from the start. After much controversy the Vienna Conference further reduced the scope of the privileges and immunities of administrative and technical staff Art. Now, diplomatic agents and members of their family forming part of their household enjoy all the privileges and immunities of Arts 29—36 VCDR.

Administrative and technical staff and their family members are granted the same protection with some exceptions: their immunity from civil and administrative jurisdiction does not extend to acts performed outside the course of their duties; they only benefit from an exemption from customs duties under Art.

Private servants receive very limited privileges only and no immunities. The much debated provision on privileges and immunities of administrative and technical staff garnered some reservations, four of which remain in effect, in turn provoking objections to the reservations. The receiving State may, at its discretion, grant privileges and immunities to its nationals or permanent residents working as other mission staff members and private servants and additional privileges and immunities to those working as diplomatic agents.

According to that provision diplomatic immunity starts when the person enters the territory of the receiving State on proceeding to take up their post or, if already in the territory, from the moment when his or her appointment is notified.

The provision opens the possibility of abuse of immunity by appointing a person against whom proceedings are pending. Courts have at times tried to avoid this consequence by requiring acceptance of the notification of the appointment by the receiving State, even though as discussed above the Convention does not require such acceptance. The continuation of immunity for official acts not only raises intricate questions of the interplay of diplomatic immunity with State immunity, it also poses the issue of which acts can be held to be official.

This includes both somewhat technical distinctions such as whether transportation to and from official functions are official acts see Knab v Republic of Georgia United States District Court Washington DC [29 May ] and the question to what extent human rights violations and crimes can be official acts. The German Constitutional Court ruled on the issue in in Syria had instructed its then ambassador to the German Democratic Republic to lend assistance to a terrorist group.

A member of that group deposited a bag in the embassy and later asked whether the embassy could transport the bag to West Berlin, disclosing that it contained explosives. Even though the ambassador did not organize the transport of the bag, he allowed the terrorist to remove the bag. The explosives were later used in a terrorist attack in West Berlin. The Constitutional Court held that acts are official if the diplomatic agent acts as an organ for the sending State and the action thus is attributable to that State, irrespective of the act violating the law of the receiving State and not being part of the functions of a diplomatic mission under Art.

Recent cases, however, clearly moved in a different direction. After a number of kidnappings of diplomats in and , the obligation to protect was elaborated further in the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. It must be noted that the inviolability of diplomatic agents does not prevent certain measures taken for the protection of human life, out of self-defence, or to prevent the commission of a particular crime—eg preventing a clearly drunk diplomatic agent from driving.

Subject to the same exceptions and the inviolability of the person and residence of diplomatic agents, diplomatic agents are also immune from the execution of judgments. Finally, they are not obliged to give evidence as witnesses. While immunity is procedural in nature and thus does not change the position under substantive law, immunity still bars prosecution or suits and is thus subject to abuse, most commonly regarding traffic offences.

To some extent the situation is remedied by the fact that diplomatic agents are not exempt from the jurisdiction of the sending State Art.

More importantly, the sending State, not the diplomatic agent, may waive the immunity of diplomatic agents under Art. Such a waiver must be express. However, the initiation of proceedings by a diplomatic agent precludes the invocation of immunity from jurisdiction with respect to counter-claims directly connected with the principal claim. At times, under modern and more restrictive rules on State immunity it is also possible to sue the sending State. While it grants diplomatic agents and their family members in transit to or from their post through a third State inviolability and other immunities as may be required to ensure transit, it does not grant a right to transit.

Instead, the benefits apply only if the third State has granted a passport visa if such visa was necessary. Benefits of administrative and technical or service staff and their families are even more limited.

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replace.me Accessed aspek operasional Konvensi Wina tahun tentang hukum perjanjian internasional. , at 4. Download Free PDF View PDF. European Journal of International Law The commentary by Corten and Klein contains the Convention; Villiger provides a. The present Convention shall be open for signature until 31 December at the Federal. Ministry for Foreign Affairs of the Republic of Austria, and.❿
 
 

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Cannizzaro ed. Zyberi eds. As in the case of the glossators, a commentary will attribute primary importance to the text of the treaty. To reflect upon this trend in inter- national legal scholarship, three commentaries on the Vienna Convention on the Law of Treaties are reviewed. In this section, the provision is placed in the context of the other treaty provisions.

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