Immunities Accorded to Foreign Diplomats, Consular Officers, and Employees of International Organizations Under U.S. Law
Released: 2008-01-28T00:00:00

Introduction

In order to conduct foreign relations and promote the interests of their nationals located abroad, States (i.e., countries) require secure means of communicating with their diplomats (i.e., representatives of a government who conduct relations with another government on its behalf) and consular officers (i.e., representatives of a government who promote the government's commercial interests and provide assistance to its citizens located in another country) stationed in other States. To ensure that such channels of communication are preserved, States receiving foreign diplomats and consular officers have long accorded such persons with certain privileges and immunities on the basis of comity, reciprocity, and international agreement.

As political and economic contacts between States have grown, customary practices regarding diplomatic and consular immunities have increasingly been codified via bilateral or multilateral agreement. These agreements not only describe the specific privileges and immunities to be accorded to foreign diplomats and consular officers by a receiving State, but also specify those privileges and immunities owed to other members of diplomatic and consular missions, as well as towards the family members of mission members.

In recent decades, international organizations have been viewed as a means by which States may conduct multilateral relations and cooperate on issues which are transnational in scope. In order to ensure the autonomy of such organizations and prevent any member State from unreasonably interfering with organizational functions, many international organizations and their employees have been accorded certain privileges and immunities by their member States. These privileges and immunities are typically similar in scope to those accorded to foreign diplomatic missions.

This report describes the privileges and immunities generally owed to foreign diplomatic, consular, and international organization personnel under U.S. law. It does not discuss certain exceptions to these immunities that may apply to U.S. citizens and legal permanent residents who are employed by international organizations or foreign embassies or consulates. The treaties and statutes discussed in this report are:

the Vienna Convention on Diplomatic Relations (Diplomatic Convention); the Vienna Convention on Consular Relations (Consular Convention); the Agreement Regarding the Headquarters of the United Nations (Headquarters Agreement); the Convention on the Privileges and Immunities of the United Nations (U.N. Convention); and the International Organizations Immunities Act.

This report contains charts detailing the privileges and immunities provided by the legal authorities mentioned above, along with the personnel to whom such privileges and immunities apply.

It is important to note that the above-mentioned authorities are not exhaustive, and the scope of immunity due in any particular case may be governed in whole or in part by other instruments. For example, the United States is a party to many bilateral consular conventions that contain immunities provisions. In most instances, the other signatory is, along with the United States, a party to the Consular Convention. In these cases, the instrument affording greater protection to each State's consular officers is controlling. Some countries with which the United States has a consular treaty are not parties to the Consular Convention. The immunities accorded to consular personnel of such States are governed by the appropriate bilateral treaties, not by the authority discussed in this report. Furthermore, not all international organizations are covered by the International Organizations Immunities Act (IOIA), or, as is the case with the United Nations, are covered not only by the IOIA but also by a number of international agreements.

Even where immunities are governed generally by the authorities cited in the relevant chart, individuals serving in similar positions for different countries may nevertheless enjoy different immunities. For example, the Diplomatic Relations Act, which effectively adopted the standards of the Diplomatic Convention for domestic application, provides that the President may, on the basis of reciprocal treatment, specify immunities for individual countries that are more or less favorable than those under the Convention. Both the Diplomatic Convention and the Consular Convention allow the United States to apply immunities restrictively where a particular country has applied immunity rules restrictively towards American representatives. Similarly, the IOIA conditions certain immunities on the basis of treatment of American representatives abroad.

It must be emphasized that the immunities provided to foreign diplomats, consular officials, and employees of international organizations may be waived by the sending State or the appropriate international organization, with or without the consent of the individual involved. On the other hand, certain individual acts may lead to a waiver of immunity. For example, the initiation of civil proceedings by an otherwise exempt individual may preclude him from invoking immunity with regards to a directly-connected counterclaim. Another example of this type of personal waiver is the relinquishment of all immunity by consular employees and staff who undertake private gainful employment in the receiving State. Still another example is when a foreign person accorded immunity wishes to become a lawful permanent resident of the United States, in which case the person must waive the rights, privileges, immunities, and exemptions he would otherwise accrue on account of his occupational status.

Finally, note that even where an individual enjoys immunity from jurisdiction, a person harmed by the immune individual nevertheless may have recourse to compensation under one of two statutes. First, the Diplomatic Relations Act requires that (1) each diplomatic mission in the United States (including otherwise immune missions to international organizations), (2) members of these missions and their families, and (3) high ranking United Nations officials all meet liability insurance requirements relating to the operation of motor vehicles in the United States. Second, the Foreign Sovereign Immunities Act provides that a foreign State shall not, with limited exception, be immune from suit for money damages being sought against it for harm occurring in the United States and caused by a wrongful nondiscretionary act of one of its officials or employees acting within the scope of duty.

Overview of Applicable Statutes and Treaties

The following sections provide an overview of the statutes and agreements governing the privileges and immunities accorded to foreign diplomats, consular officials, employees of international organizations, and related personnel.

Vienna Convention on Diplomatic Relations

Pursuant to its treaty obligations under the Vienna Convention on Diplomatic Relations (VCDR), ratified in 1972, the United States accords certain privileges and immunities to designated categories of persons employed by other Convention parties' diplomatic missions, along with the household family members of certain mission employees. Persons entitled to certain privileges and immunities under the Diplomatic Convention include diplomatic agents and their immediate household families, the mission's administrative and technical staff and the immediate household families of those staff members; the mission's service staff; and private servants of members of the mission.

Under the Convention, the United States accords diplomatic agents (and members of their households) absolute immunity from its criminal jurisdiction and near-absolute immunity from U.S. civil and administrative jurisdiction. A diplomatic agent is also not obliged to give evidence as a witness. Below the rank of diplomat, the administrative, technical, and service staffs also are immune from criminal jurisdiction, but have more limited immunity from civil and administrative jurisdiction. The household family members of diplomatic agents and mission staff are also generally provided with the same privileges and immunities accorded to the diplomatic agent or mission staff member to which they are related. To varying degrees, persons covered by the Diplomatic Convention also receive immunity from taxes and customs duties, military and public service obligations, and alien registration requirements.

Congress passed the Diplomatic Relations Act to grant the privileges and immunities accorded under the Diplomatic Convention to all foreign diplomatic missions, personnel, and the families of such personnel, regardless of whether the sending State is a party to the Convention. This extension is subject to the sending State's reciprocal treatment towards U.S. diplomatic missions, personnel, and families of such personnel, along with other terms and conditions the President deems appropriate.

Vienna Convention on Consular Relations

The Vienna Convention on Consular Relations (VCCR), which was ratified by the U.S. in 1969, accords certain privileges and immunities to consular officers (i.e., persons who exercise consular functions on behalf of the sending State, notably including the consular post) and their immediate household families; the post's administrative and technical staff and the immediate household families of those staff members; the post's service staff; and honorary consuls (i.e., consular officers other than career consular officers). These privileges and immunities are lesser in scope than those enjoyed by similarly-situated members of diplomatic missions and those members' household families. For example, while foreign diplomats and their family members receive full immunity from the criminal jurisdiction of the receiving State under the Diplomatic Convention, consular officers covered by the Consular Convention only receive immunity for actions they take in the course of their official functions, and their family members receive no immunity from the criminal jurisdiction of the receiving State. Family members of consular employees also receive no immunity from the receiving State's civil jurisdiction. Members of the consular post and their family members do receive varying degrees of immunity from the receiving State's taxes and custom duties, alien registration requirements, and military service obligations.

The privileges and immunities owed under the Consular Convention only apply between Convention parties. The privileges and immunities owed by the U.S. to the consular personnel of non-Convention parties are governed by applicable bilateral treaty. In the case that the U.S. and another Convention party also have a bilateral treaty governing consular relations, the instrument providing broader coverage is controlling.

International Organizations Immunities Act

The IOIA provides a significant number of privileges and immunities for international organizations designated by the President via executive order. Certain privileges and immunities are also accorded to employees, officials, and representatives to such organizations, along with members of their immediate families, though these are less than those accorded to the international organizations themselves. Officials, employees, and representatives to designated international organizations are accorded immunity pursuant to the IOIA following validated notification to the Secretary of State of their organizational position. The terms "official," "employee," and "representative" are not defined by the IOIA The United Nations was designated as an "international organization" for purposes of the IOIA immediately following the statute's enactment. Several dozen other international organizations have been designated as receiving coverage under the IOIA, including such organizations as the International Monetary Fund, the International Committee of the Red Cross, the Organization of American States, the World Health Organization, and the World Trade Organization.

U.N. Convention on Privileges and Immunities

In the same year the IOIA was enacted, the U.N. General Assembly also adopted the Convention on the Privileges and Immunities of the United Nations, establishing de minimus standards for the immunities and privileges accorded to the United Nations and U.N. officials, Member State representatives, and experts working for U.N. missions. These immunities and privileges are largely similar to those accorded via the IOIA. The United States ratified the Convention in 1970.

As with the IOIA, the U.N. Convention on Privileges and Immunities (UNCPI) does not define the term "employee" or "official," though this is perhaps of little concern because the U.N. Convention provides immunity only to those categories of U.N. officials (beyond the U.N. Secretary-General and all Assistant Secretary-Generals) designated by the Secretary-General to receive protection under the Convention. The Convention also does not define "experts on missions" who receive immunity under the U.N. Convention. However, an advisory decision by the International Court of Justice (which has ultimate authority to interpret the U.N. Convention), found that the category of experts on U.N. missions includes, inter alia , persons entrusted by the United Nations with mediating disputes, preparing reports and studies, conducting investigations, or finding and establishing facts on behalf of U.N. missions. The Convention defines "representatives" of U.N. Member States as including all delegates, advisors, and secretaries of Member State delegations.

Besides granting an explicit set of privileges and immunities to designated persons, the U.N. Convention also specifies that certain designated individuals (i.e., U.N. representatives, the U.N. Secretary-General, all Assistant Secretary-Generals, and certain U.N. officials designated to receive protection under the Convention by the Secretary-General) are to receive most or all of the privileges and immunities accorded by a receiving State to diplomatic envoys. Accordingly, by reference to other statutes and treaties adopted by the receiving State, the U.N. Convention provides these U.N. officials and representatives with certain privileges and immunities beyond those explicitly described under the U.N. Convention. Generally speaking, the U.N. officials and representatives covered by the U.N. Convention are given the same privileges and immunities as those the U.S. accords to diplomats under the Diplomatic Convention. With respect to designated U.N. officials, however, Diplomatic Convention standards concerning immunity from criminal prosecution apparently are not so incorporated, as the U.N. Convention provides that such officials are immune only for official acts.

U.N. Headquarters Agreement

In 1947, the United States entered the Headquarters Agreement with the United Nations. The U.N. Headquarters Agreement (UNHQA) primarily concerns the privileges and immunities accorded to the United Nations and its headquarters in New York. However, the Agreement also provides certain privileges and immunities for specified U.N. representatives and related personnel residing in the United States . The Headquarters Agreement provides such persons with the full protections accorded to diplomatic envoys—a broader scope of immunity than that provided under either the IOIA or the U.N. Convention. Representatives and related personnel of U.N. Member States whose governments are not recognized by the United States receive lesser privileges and immunities.

Charts of Privileges and Immunities Accorded to Persons Working for Foreign Embassies, Consulates, International Organizations

The following charts list the major privileges and immunities accorded to persons working for foreign embassies, consulates, or international organizations (including, specifically, the United Nations). When a treaty or international agreement makes reference to covered personnel receiving the same immunities accorded to persons covered by other treaties, the nature of such immunities is explained. Thus, for example, because the U.N. Convention on Privileges and Immunities provides that certain U.N. personnel are to receive the same immunities as the receiving State accords diplomatic envoys, the chart detailing the immunities provided under the U.N. Convention occasionally makes references to immunities provided to diplomats under the Vienna Convention on Diplomatic Relations.

It is important to note that the charts concerning the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations only discuss those immunities accorded to persons who are not U.S. nationals or permanent residents. Diplomatic and consular officers working on behalf of a foreign State who are U.S. nationals or permanent residents only receive immunity for official acts performed in the exercise of their functions, while other diplomatic or consular personnel or members of their household families receive no immunities if they are U.S. nationals or permanent residents. Persons who are employed by international organizations or are foreign representatives to such organizations are provided with immunity regardless of whether they are U.S. nationals or permanent residents.

Chart 1: Privileges and Immunities Accorded to Persons Under the VCDR

Chart 2: Privileges and Immunities Accorded to Persons Under the VCCR

Chart 3: Privileges and Immunities Accorded to Persons Under the UNCPI and UNHQA

Chart 4: Privileges and Immunities Accorded to Persons Under the IOIA and Other Relevant Domestic Statutes

Chart 5: Privileges and Immunities Accorded to U.N. Representatives and Employees Under the IOIA, UNCPI, UNHQA, VCDR, and Related Statutes and Agreements

The United Nations and specified officials, employees, and representatives to the organization are accorded a number of privileges and immunities by a series of interrelated statutes and treaties. In some cases, the immunities accorded to the organization and specified officials, employees, and U.N. representatives are explicit; in other cases, they are established via cross-reference to other sources of law. This chart details the scope of such immunities, as governed by the International Organizations Immunities Act, the U.N. Convention on Privileges and Immunities, the U.N. Headquarters Agreement, and, by cross-reference, the Vienna Convention on Diplomatic Relations. Where appropriate, immunities provided by related U.S. statutes are also listed.