Immunities of the Members of the Administrative and Technical Staff in the Permanent Diplomatic Mission: Theory and Practice

Transcription

1 Immunities of the Members of the Administrative and Technical Staff in the Permanent Diplomatic Mission: Theory and Practice Pro. Dr. Mahmoud Khalaf and Dr. Khaled Mohsen Political Sciences Department Human Sciences & Faculty of Arts Applied Science Private University Amman Jordan The author is highly grateful to the Applied Science Private University in Jordan for granting full financial support to this research. 31

2 Abstract This study aimed at identifying administrative and technical employee s theory and practice; reveal their tasks in the mission. Also, to reveal what distinguish them fromother employees mission, to categorize them according to their nationality, and residency so as to bring forth their immunities according to Vienna convention on diplomatic relations / Furthermore, this study investigates states practice of convention items in regard to administrative and technical employees, after the convention, whether in their personal immunity or the immunity for their residency, documents fixed and non-fixed assets In order to achieve the objectives of the study and answer its question in regard to immunity for member state s administrative and technical employees and its foreign ministry s staff. Although its restricted, however, it is similar to what it gives diplomatic staff members of the mission. While the convention and the practice of state, and after the convention, it deprived their counter parts of state s citizens who reside there, along with foreigners who reside permanently in its territory from any immunity what so ever, despite all hold the same job description and relatively do the same tasks. Due to study s legal nature, researchers utilized the legal approach to examine the dimensions of the study completely through analyzing and intercepting the legal text of Vienna convention on diplomatic relations, in terms of language and content. Also, explain how states practice such items. The study achieved several results, most importantly; the administrative and technical employees are members of permanent diplomatic mission whose tasks are to perform administrative and logistic service to the mission and attaches nationality and residency standards determine the extent of the degree which every one of them enjoys or not of relative immunity. The criteria to enjoy immunity is to notify the permanent diplomatic mission sending state s ministry of foreign affairs y, about their hiring, firing or resignation or asked to resign. Keyword: Diplomacy; immunity; technical and administrative and technical employees; Vienna convention on diplomatic relations Introduction: A state exercises its sovereignty, through its laws, political will and in accordance with its national interests, over whatever physical and humans on its territory. However, this sovereignty is fractionally reduced. This reduction in state s sovereignty is represented in what the state provides from immunities and privileges to the permanent diplomatic mission in both physical and human systems which are in great parts not under its control in, especially immunities to legislations, norms and authority of the state. Rather it is subjected theoretically to international legislations and norms, also practically, with its size, capabilities and national interests. Thus, the state is under obligation to ignoreit because it had signed and ratified international agreements and obliged itself to abide by such agreement to live and to get along with other states and the international community members.one of the important international agreements is Vienna convention on diplomatic relations (1961). While the other part which states ignore willfully and in accordance with national interests is that, the state is the one who decided to establish bilateral or multi-lateral diplomatic relationships with other states hoping to be treatedwith the same.based upon the aforementioned, when states declare their independence, they hurry to join the Vienna 32

3 convention on diplomatic relationship. Furthermore, states seek to establish diplomatic relationships withone another with mutual satisfaction. The establishment of such relationship requires establishing physical apparatus for the mission. Also, to delegate human elements that consist of various classes and ranks of diplomats, administrative and technical employees and other personnel, headed by the mission s chief regardless of his/her class.all those form one inseparable body,the crew of permanent diplomatic mission. Vienna convention in its article (1) classified mission, within legal framework, accordance with their nationalities, classes, ranks and job description according to tasks they perform and the need of each mission. This legal situation is varied according to mission class and nationality. This is expressed by what is called immunities and privileges that each class or rank enjoys. Although, the international norms, convention, states practices and law jurisprudents opinion have paid too much attention in terms of legal texts. Practice and research about diplomatic crew called diplomatic delegate, however little attention was paid to administrative, technicalemployees and other personnel, in regard to immunities and privilege, more than that distinguishing them one form another according to their nationality and permanent residency; restricting immunities for some, deprive the others completely fromimmunities.therefore, the significance of this study is derived from its structure andits focus on administrative and technical employees and its immunities, because it has rarely been written about it in developedcountries, and complete absence in the Arab countries, despite the fact that, there are hundreds of subtitles in books, research and electronic sites, however, such brief mentions about the subject do not exceed several words or very few pages as if they are attachments to diplomats. If this is true, because they are considered to be second degree by norms, convention and philology due for being assistants to diplomatic crew and each of such employee performs tasks designated head of the mission, however, missions frankly indicate that a mission cannot perform its duties ideally without such employees; due to the tasks some of them perform that are characterized by being more accurate and dangerous than the tasks of some diplomatic. In addition, their multiple nationalities and various permanent residence are the main determinants for their various immunities. Consequently, such differences require great effort to be fair to such employees. Thus, this study aims at identifying the nature of administrative and technical employees or clear definition of administrative and technical employee, distinguishing between the two in terms of tasks and not job description, rights or responsibilities and thus, distinguishing their tasks in the mission, and categorizing them according to their nationality and permanents residency. In addition, to what distinguish them from the rest of diplomatic mission s staff, so as to investigate their legal status, their immunities in particular which differ by the difference of their nationalities. In addition, this study aims at providing law jurisprudence contribution for the purpose of adding new relevant materials to the Arab library and to whom it may concern: states authorities, diplomatic mission staff, specialized personal and researches. In addition to the aforementioned, this study attempts to provide fairness to such employees regardless of their nationalities, also to reveal their rights and responsibilities especially those who belong to the mission s state or citizen of the state where the mission is accredited, or foreigners who reside permanently in that state. This type of foreign employees, were deprived from their immunities privileges and humanitarian rights, by international practices in many states and missions. This deprivation is considered to be international legislation deviation, even their states legislation in terms of labor Law, social security and health insurance law. 33

4 In order to investigate the study s problem and to achieve the study s objectives, and because of the legal nature of the study, legal method is utilized to investigate the study s dimensions through international legal texts, analysis and interpretation in terms of language and content; and explanation of how states exercise such legal verbatim. Accordingly, the study attempts to answer the main problem of the study which is revealed in the main title of the study, namely, what are the immunities which Vienna convention on diplomatic relations, granted to the administrative and technical staff of the permanent diplomatic mission? How states and permanent diplomatic missions in these countries must apply such immunities? Why it deprived their colleagues of state s citizens which the mission are from that state, along with foreigners with permanent residency on that state s territory, from any immunity whatsoever, despite both administrative and technical employees working for the mission? In order to achieve such objectives, and because the states practices are not clear, and the lack of consideration by diplomatic law philologists to this class of administrative employees. The two researchers attempt to reveal restrictions of state s practices through a set of sub questions which may help in achieving an integrated knowledge of the study: 1. Who is the administrative and technical employee? What is their nationality? What are the procedures to hire him? What type of tasks they perform? What are the characteristics which distinguish them from the rest of members of the mission? What are the immunities by the receiving state for its citizens and its ministry of foreign affairs employees, what are its limitations and restrictions, imposed on it? Why the convention and international practices, states exercises and diplomatic missions deprived their colleagues, the administrative employees whom are known as local employees from any immunity whatsoever? In order to answer these questions, the study has been organized into: an introduction, two chapters and a conclusion: Whereas, chapter one discusses the administrative and technical employee identification, in terms of: definition, nationality determining, how is he hired, his tasks and characteristics. Chapter two: focuses on answering the study s main problem and sub problems in detail through the examining of technical and administrative employees, immunities with their different nationalities, and their permanent residency. The study is completed by a conclusion of the most important results. 34

5 Chapter One Administrative and Technical Employees First: Administrative and Technical employee definition: Vienna convention on diplomatic relations (1961) defines the administrative and technical employee, in itsarticle 1/B as the members of the mission item E of article (1) defines administrative and technical employee with more clarity as The members of administrative and technical staff are the members of the staff of the mission employed in the administrative and technical service of the mission. It is a clear definition theoretically, which reveals their characteristics and to distinguish them from diplomats and embassy staff (article1/g). However, states, legislations, practices, and international traditional philology mix between them, whether prior to the convention, in the convention itself, of after the convention, this difference leads to problems among states in terms of their classification from one side, and the extent of immunities and privileges they enjoy, from the other (Bakri, 1986: 86, 87). Nevertheless, the convention always lists them as it is stated in its article all together (article, 10, 37 ) It does not separate their job description, instead, their legal status, which indicate to their immunities and privileges enjoyment extent. Furthermore, it classifies their rights according to their nationalities: whether they were citizens of their own country, or citizens of receiving states, or foreigners with permanent residency in that state. More details are in this study. In summary, administrative and technical employees can be defined as: Every personthat works at the diplomatic missions various departments under their job description, belong to the mission and its attaches, or these workers who carry out the mission s duties: administrative, and technically, their names do not appear in the diplomatic list, their cars do not carry diplomatic license plates, rather, their cars carry temporary license plates.the convention puts forward a condition that, diplomatic mission and on behalfits state must be obligated to notify the receiving state s ministry of foreign affairs whom they assign such employees, when it terminates their services or work is terminated with the mission, furthermore, their nationalities, their arrival for the first time, and their final departure, (10). Any hesitation or delay in prior notifying ministry of foreign affairs, may lead to negative consequences on such employees, and may deprive them from privileges and immunities, eventually, they may be subjected to be sought and deported by receiving states security forces. This action may hurt the sending state s reputation and its mission (Shami, 1990, pp ). Second:Nationality: Although, the convention has not directly determined the nationality of the mission s administrative and technical employees as it does with the diplomatic members (8 1961), however the convention directly distinguishes their various nationalities (2/37, 2/38, 4/39, 2/40), despite that international post-convention practices put freeze on state s hiring of foreigners to be diplomats, and increased reliance on various nationalities to be administrative and technical employees, thus, it is understood from the convention and current international practices that such employees are: 1. Citizens of the sending states. 35

6 2. Citizens of the receiving state. 3. Citizens of sending state or citizens of third states who temporarily or permanently reside in the receiving state s territory. Third: Administrative and Technical employees job. Vienna convention emphasizes the sovereignty rights of the sending states, to assign whom it desires and selects any members of its mission, administrative and technical employees included (7/1961), Also,it gives the right to the receiving state to accept or reject such assignments (9/1; 2/1961). The convention also imposes that sending states ministry of foreign affairs or its diplomatic mission, the necessity to inform the receiving state s foreign ministry about its assignment of mission s members, their arrival for the first time in the receiving state and their final departure from the receiving state s territory. In addition, hiring, firing or service termination of any member of mission (1/10, 2/1961). And (Amended Jordanian labor law 2010). Despite the clarity of the above mentioned articles, and that most states are abiding by such articles, however, the conventions articles do not cause any problems in regard to the diplomatic mission due to its current stability, instead, the problem, is caused by states practice and their missions in hiring the technical and administrative employees within the mission, due to their different nationalities and favoritism, and work nature for each of them, their ranks, work contracts and abiding by states, legislation, whereas some of these employees are official employee, in their state while others are local workers with permanent work contracts, temporary ones, daily, or hourly for certain duties, etc. Taking into consideration that they are essential elements in the mission, even with their different nationalities. They contribute a great help to the mission s work performance, due to their supportive, technical and administrative responsibilities and their wide knowledge of sending state s conditions, affairs, laws, bylaws, customs and traditions, especially the local ones. The current international practices in the selection of these groups of employees are conducted via two approaches: first approach, practices performed by states that have large pools of people, and large financial capabilities and interests. Thus, it prefers to hire such employees from its own citizens. In case its requires a larger number of employees, such state seeks help from its own citizens who reside permanently in the receiving state (if any) or from other states citizens who have interest, language and values in common, for security reasons (Al Sheik, 1999: 222, 227, 229). Thus, whoever is from such employees and works with the mission, and is from the sending state s official employee, as administrative staff of the foreign ministry or employee at other state s ministry or bodies, such employee occupies a high rank within the mission. Second approach: seeking aid from the receiving state s citizens, or from foreigners who permanently reside in that state, sending states citizens included, this way is sought due to citizens refrain from working in diplomatic missions due to low wages while they have same or jobs with higher wages in their own country such as Gulf states citizens sates prefer hiring receiving state s citizens to save money: salaries, cost of living flight tickets, living costs. This type of hiring foreign employee is practiced by small and mid-size state such as most of Arab diplomatic missions in Jordan (Sheik, 1999: 227). 36

7 In case of the first approach, the sending state is responsible for the mission s expenses and members salaries. However, the states earn the belonging and loyalty of its own employees and mission members. The sending state must notify the receiving state about employees arrival for the first time and their final departure. (10/1961) Regarding the second approach, as it is mentioned earlier, the head of the sending states mission hires employees from the receiving state s citizens (Villanueva, 1989: 49, 50). Their cost and expenses can come from the mission s budget, or from the state s foreign affairs ministry, other sources or from money the mission or embassy collects for providing services and in extreme cases the receiving country sministry of foreign affairs pays for such employees salaries and costs of living. In regard to administrative and technical employees immunities, they have none whatsoever, or temporaries and restricted ones while they are employed, as for the income taxes, social security or health insurance, they are usually at their own expenses. However, most recently, some states such as Holland and Scandinavian states have started demanding to grant such employees their human rights after pressure from human rights organizations(sheik, 1999: 229). Or as a result of pressure from local employees, by boycotting their work,such demands reached to a level of defaming the diplomatic mission through media channels and social network such as the local Jordan employees as the Jordanian embassy in Riyadh/ Saudi Arabia. Other employees took the embassy to court such as Libyan embassy in Amman (Arab news 2/2015). This caused some missions and their attaches along with cultural center to help within possible. In addition, and due to their foreign nationality, and their work s sensitivity, very often missions designate a special department lead by a diplomat, called, local employees official. It reports to mission s bureau. This office task lies in overseeing employees affairs, behavior and watching them to not have any effect on mission s work progress and secrecy, despite most of these employees being assigned to perform general service duties (Sheik, 1999, 223). To assure the aforementioned, missions must abide by the receiving state s national laws, such laws require advanced approval form local authorities to grant them work permits needed and in accordance to their laws (Fawq Al Aada, 1973: 83). However, most diplomatic missions do not abide by this logic; this kind of practice forced some to call forgranting such employees their human rights, however, there is no immunity for human rights, As a result, some states enacted laws to protect their citizens rights who work for foreign mission, such as Mexico, which amended its Mexican political constitution to include that, Every Mexican citizen who works or wants to work for diplomatic missions must obtain a work permit issued by Congreso Federal. Violators will be subjected to legal accountability and the loss of citizenship. (Article 375) of Mexican constitution (Villanueva, 1989: 49). Another example to abide by convention article (40/ 1961) is former USSR, currently the Russia Federation is attempting as Mexico to send indirect message to foreign mission in Russia to abide by its laws that concern administrative and technical employees. Thus, Russia s foreign ministry issued a notification to all diplomatic missions on its territory to abide by advanced notification about hiring and firing this type of employees who are locals and its citizens furthermore, and for security concerns foreign missions must pay such employees salaries via security office called diplomats service office (Khalaf 2009: 280), 37

8 Several states address missions with diplomatic manner to consult the state and seek its opinion, when a mission wants to hire technical and administrative employees, even ordinary workers and from receiving country s citizens. This can be accomplished through a special office for general service that belongs to the ministry of foreign affairs. Or a special office licensed by the ministry of labor, to facilitate and aid mission s work, and to have a staff without criminal record. (Sheik, 1999: 228). Finally, the secrecy and sensitivity of the diplomatic work, and the necessity of missions to abide by the national laws of the receiving state, necessitates that missions must notify the ministry of foreign affairs about names, and job description prior to their hiring for the purpose of providing a service and not interference, This process is crucial especially with the international terrorism proliferation, and for security purposes. Fourth: Administrative and Technical Employees Responsibilities. Although Vienna convention has not specified the responsibilities of such employees, however, by practice and work requirements, the administrative employees conduct office and service tasks. Thus, their job description is clear the moment they are hired. For example, bureau employees and administrative assistant, due to the confidentially of these tasks, the employees in this magnitude are from the sending state s citizens. In addition, other employees conducting other responsibilities such as secretaries, translators, notaries public, issuers of passports, authenticators and other personnel confirming commercial and college documents and issuing entry visa, accountants, and money exchangers, customs clearing employees, embassy security and cultural center under the leadership of a security of officer what job is to monitor local employees and their behavior. Librarians and cultural activities employees are included, public relation, media, journalism and cultural employees. Sending states are active in spreading propaganda about their countries for tourism and commercial purposes, thus, information collection and reporting within legitimate framework has become a norm (Article 3/1961). Furthermore, any member of the mission who does not carrya diplomaticrank such as military and cultural attaches is classified as an administrative employee when hiring such employees, they are hired by their job description. Sensitive positions are filled with the sending state s citizens. Based upon article 19 of the convention in case of the mission s head should be absent or leaving the country, and without mentioning the nationality the highest ranking administrative office takes his place. However, this officer must be approved by the receiving state (Khalaf, 2012: 201). Fifth: Administrative and Technical employee s characteristics: Based upon Vienna convention (1961) and states practices, an administrative officer has certain characteristics that distinguishes him from other employees such as: 1. They are usually called office employees or non-diplomatic officer or non diplomatic crew ; their names are not mentioned in the diplomatic list. They are not part of the diplomatic corps in the receiving state (Shek, 1999: 195). 38

9 2. They must be citizens of the sending states, but this practice is changing, they can be citizens of the receiving states or foreigners residing in it (Article 9/37 and other citations, 1961). 3- Administrative and technical employees enjoy the about the same legal benefits as the diplomats, while other employees from different nationalities enjoy restricted and limited immunities and privileges (articles 2/37; 2/ ). 4- In case the receiving state wants to terminate an administrative or technical office for reasons such as interference in state s internal affairs, or exceeding their tasks limits, such employees are classified by the convention as Persona Non Acceptable, and not as Persona Non Grata as diplomats. (Article 9/1961). 5- According to article (10/1961) administrative and technical employee starts his employment with the knowledge and consent of receiving state. 39

10 Chapter Two Administrative and Technical Employees Immunity It is inviolability or taboo, more them that it is immunity holder, is the one who enjoys liberty and safety to perform their work. Legally, immunity granted to state s citizens or foreigners residing in the state or visitors, that such people do not abide by norms or laws of the state they reside in (Shami, 1990: and Le Robert Dictionary and Lisan Al Arab). In this context immunity is defined as, a set of international legal rules mission as it is stated in Vienna convention, Its purpose is to enable the immunity holder to perform his duties effectively without interference by authorities of the receiving state (Khalaf 2009: 124). Diplomatic immunity from ancient times until now is a matter with no argument about, it means that, it is absolute or optional obligations that states must abide by according to the convention, states must provide to all diplomatic personalities the protection from all dangers, and provide them with safety and security and respect; without hurting their reputation or insulting them, along with their families, residency, transportation and their assets. However, the topic of this study is immunity for administrative and technical employees, yet, it is difficult to determine it due to its complexity where politics is mixed with law; and international general law is blended with international private law. And the general national law with the private. Researchers are utilizing the division or organization of preparatory conference prior to Vienna convention April 1961; after international law committee of UN failed to persuade participating states to make it equal in regard to immunity granted to diplomatic missions, with administrative and technical employees. Furthermore, participating states agreed on relative equality based on those employees citizenships and their classification into two groups: First: members of administrative and technical employees that are sending state s citizens. Second: members of administrative and technical employees who are the receiving states citizens and foreigners who reside permanently in that state to shed more light on this classification, researchers provide the following: First: immunity for administrative and technical employees that belong to sending state s citizens. They are largest and most common group. Article 2 1/27 states clearly in this regard: The members of administrative and technical of a mission, along with their family members enjoy the privileges and immunities stated in articles In a condition not to be receiving state s citizens, and have no permanent stay in the state except civil and civil judiciary immunity of the receiving state, as it is stated in item (1) of article (31) which is not valid over their doings outside their official assignment. 40

11 This statement clearly shows that the convention declares their equality with diplomats from the sending states in general, However, it puts some restriction on them similar to these restrictions on diplomatic employees who are not citizens of the sending states in particular (Fawq al Jodeh1973: 322 and 323). Restriction are: 1- Must be citizens of the sending states exclusively. 2- Not subjected to civil and administrative judiciary, as it is stated in item 1 of article 31/1961 we understand that, this class of employees enjoy special status or legal status that is relatively similar to that which diplomatic members enjoy as it is explained in article 2/37 of the convention as follow: Article 29 states: The person of a diplomatic agent shall be inviolable, he shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. In close reading of this article, it is clear from its articulation, that it is written in very clear manner, that is does not need an interpretation. Also it indicates the almost obligation of receiving state to grant the administrative and technical employee who hold his country s citizenship, the protection and that the receiving state s law is not applicable on him, in return, as a diplomat he must respect the receiving state s laws and national charts. And do not interfere with its internal affairs (41/1-1961). In this case, if the mission s member honors the receiving state laws, then the receiving state will protect and honor him (Jordanian penal code 2002). Otherwise and as article 9 stated that, receiving state shall declare that he is persona acceptable and has to leave the state (pintos, 1987: ) 1- Article 30/1961 states that: the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. Also, his papers and correspondence as provided in paragraph 3 of article 31, his property likewise enjoy inviolability. Such assurances come in article 29/1961 followed by article 30/1961 as it is explained above (Khalaf 2009: 168). Based upon article 2/37/1961, in section similarity and measurement, which states that administrative and technical employee who is a citizen of his country enjoys the same immunity that mission members enjoy. Here we notice that legislators used present tense Enjoys then used Same that the mission enjoys both. The purposeisclear that is, member s private residence that is similar to diplomatic agent whereas he enjoys absolute immunity, the same as permanent mission s premises. To increase assurance more, legislator used item 2 of article 30/1961wheras he used and then the same previous present tense and enjoys. And indicates adding and participation. This means that, in addition to the private residence of the technical and administrative enjoy immunity. Also, his documents correspondence, fixed and unfix assets enjoy immunity too. However, legislator adds, allowable limits(item 3, article 31/1961) 41

12 the enjoys immunity with the above mentioned of administrative and technical employee s property except his residence in which he lives in, is subjected to contingency to special conditions linked to civil or administrative judicial cases asit is mentioned in article 31 below. Although the administrative and technical employee s analogue with diplomatic agent is exaggerated, and most stated objected it, however, it was added to the convention with exception especially claims linked to private real-estate, inheritance or vocational activity or commercial. All are conditioned by their administrative and technical employee be as diplomatic agent to own or operate is forbidden. Truly, this is too much by the convention to make the diplomatic agent s residence, similar to the administrative and technical employee s residence. Diplomatic agent s residence is part of the mission s which state owns but the administrative and technical agent s residence is rented for a limited duration, and the state has nothing to do in this regard, rather it is rented in the account of the employee. Article 31/1961: States that: 1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 2. A diplomatic agent is not obliged to give evidence as a witness. 3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this Article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. 4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. According to item 1 of article 31 which states immunity is granted to them while they are performing their official duties only and abide by the receiving state s legislations. (Attina, 1979:58-62). In article 31 with its four items, legislator used assertive manner such as enjoys which means more assurance to the previous item, and in item 3 he uses is not allowable, then followed by exception (Khalaf 2009: 207,8). In sum, the administrative and technical employee who is citizen of the mission s state enjoys immunity against receiving state s criminal judicial. This means that he will not stand trial (Fawq al Aada 1973: ). However, this does not make the immunity holder a person above the law, and exploits his job, rather, item 4 or article 31/1961 states, this does not allow him to escape a crime, and instead victims may sue him in his own country s court where such employee has no immunity. 42

13 However this is hard for the victims to do thus, a hypothesis should be under consideration that, Justice and fairness are not accomplished. (Shami 1990:379). In regard to civil and administration judiciary article (1/31) show three cases are exempt from immunity (Fawqal Aada 1973:303). 1- In kind law suit-linked to real estate owned by the administrative and technical employees in the receiving country. 2- A law suit linked to inheritance and the administrative and technical employee part of it. 3- A law suit linked to any vocational or commercial activity the employee is doing out of his work hours and for his own interest. Article 31 in item 2 exempt the administrative and technical employee from testifying in court. This coincides with article 29/1961 which are explained earlier (Khalaf 1997:278) Item 3 article 31 adds more obstacles in the way of carrying out a judgment of immunity to mission s member or employee alike. Thus, to waive both immunities it will be the sending state s authority. However, it is rare to have the state to do so. Another impossible thing to do by the legislator is that, receiving state must conduct carrying out procedures within not to touch mission s member inviolable status or his residence. Thus the diplomatic agent has separated the Judiciary immunity from carrying out immunity; legislator restricted those two immunities deliberately, so as to make it harder on state to separate the two, and to encourage state to seek a political solution instead in friendly manner (article 9) Article 32/1961: This article complements article 31 that discusses judiciary immunity for diplomatic agent, and administrative and technical employee who is a citizen of the sending state: 1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may be waived by the sending State. 2. Waiver must always be express. 3.The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under Article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim. 4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgment, for which a separate waiver shall be necessary. By reading the article closely, it can be noticed that legislator has articulated the content in conditioned optional manner such as item 1 of article 32, present tense able to or you can or if you want. The same can be said in item 2 and 3 IF. And item 4 too. 43

14 Thus, the international practice of this article considered complementary to article 32, to be positive procedures about how state waives immunity in all cases: penal (criminal) civil or administrative. It is necessary procedures if the two states (sending and receiving) want to maintain and enhance friendly relationship between the two states (Khalaf 2009: 316), and (Khalaf 1997; 279). Item 3 and item 4 are warning to both states and diplomatic agents items. In case if any resorts to court in the receiving country, he will be losing his immunity and may have negative consequences by reviewing the four item of article 32 and connect them together, it is clear that the state has authority over immunity, not the holding agent, state only has the authority to waive immunity from diplomatic mission s members. Thus, it is impossible to carry out a judgement (Abdel Rahman 1991: 217). Waiving judicial immunity have negative consequences on the national Judiciary in order to eliminate such confusion, UN and EU asked states to amend their laws in a way that does not contradict Vienna Convention (1961) and to have priority goes to the Convention s articles. Also some law philology schools such as Harvard Law School, and international law society issued philology projects state, National courts have no jurisdiction over acts that violate the international law, in the context of diplomatic, consulates and special missions immunities, some states such as USA, and UK amended their relevant laws to be in harmony with Vienna Convention Administrative and technical employees immunity during their crossing in third country s territory Legislator adds article 40/1961 of the convention, so as to facilitate the innocent passage, to those who hold diplomatic immunity, though third states territory to and from their state or the receiving. Article If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country, the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are accompanying the diplomatic agent, or travelling separately to join him or to return to their country. 2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the passage of members of the administrative and technical or service staff of a mission, and of members of their families, through their territories. 5- Administrative and technical immunity Time limitation (duration) article 39 of Vienna convention is a response to put an end to the contradictory international practice in regard the liming in which diplomatic mission s member enjoy their immunity and privileges in the receiving state. The question in this regard is: when immunity starts and expires for permanent diplomatic mission to enjoy according to their rank, nationality and residency 44

15 Article Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed. 2. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease directly when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even incase of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. The convention arranges the continuity of immunity holder to enjoy his immunity temporarily in case of armed conflict 2. Where possible, prior notification of arrival and final departure is shall also be given. Armed conflict or violence should break out in that state or severing of diplomatic relationship between the two states or unexceptional cases that receiving state s ministry of foreign affairs accepts. (39/2). Article 39 -When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even incase of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. Article 9 1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State. 2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission. 45

16 -Receiving state s administrative and technical employees or permanent foreigners immunity 1. The Ministry of Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of: (a) The appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission; (b) The arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission; (c) The arrival and final departure of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons; (d) The engagement and discharge of persons residing in the receiving State as members of the mission or private servants entitled to privileges and immunities. 2. Where possible, prior notification of arrival and final departure shall also be given. Article Other members of the staff of the mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the performance of the functions of the mission. 2. Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions. Summary/ Conclusion This study has been conducted in order to answer questions, whether the main questions or sub ones which mentioned in the introduction section of the study. The purpose of answering this question is to provide the interested people: learners and practitioners with them; complete and integrated information and knowledge about administrative and technical employees and their immunities with their various responsibilities and nationalities. The following are the most important results of the study: 1- Provide clear definition of the administrative and technical employee, for being as a member of a permanent diplomatic mission and who assigned to perform various administrative and service tasks to the mission, or anyone who works at any of diplomatic mission s various department or attaches under this job description. 46

17 2- Determining nationality and residency of these employees so as to distinguish them from others. Determining their legal status and privileges as follow: sending state s citizens, receiving state s citizens and foreigners who reside permanently in the receiving state. 3- Based upon determining their nature and nationalities, and to be in accordance which each class at these employees enjoys are as follow: A- Sending state s administrative and technical employees, those who are assigned by the foreign ministry, and delegated with the mission under this job description enjoy all immunities that a diplomatic agent enjoys. Criminal Judiciary immunity and relative immunity for administrative and civil judiciary. B- Receiving state s administrative and technical employees, or foreigner who reside permanently in this state, including citizens of the sending state enjoy temporary and limited criminal judiciary during performing their duties with the mission they do not enjoy any administration or civil immunity, also they do not enjoy personal, residence or financial immunities. 4- In order for the administrative and technical employee- based upon his nationality- to enjoy such immunities whether absolute, limited or temporary the diplomatic mission must notify receiving state s foreign affairs ministry about their arrival for the first time to do their jobs with the mission and their work termination and their find departure from that country, just in case if they were the sending state s citizens. The same can be said about receiving state s employees as Vienna convention 1961 dictates and for national security and the safety and security of the diplomatic mission. 47

18 Sources & References 1 : Sources : 1) Vienna Convention 0n Diplomatic Relations ) Jordanian Labor Law: ) The Jordanian Penal Code : ; References : 1) Abdul-Rahman, AbdulhakimMoustafa : (1991),The Judicial Immunities and the Execution on International Private Comparative law, Al-Nasser Library, Cairo University, Cairo Egypt. 2) Al-Bakri, Adnan : (1986 ), Diplomatic & Consular Relations, 1 ed, University Institute for Studies and Publicatios, Beirut Lebanon. 3) Al-Shami, Ali Hussein : (1990 ), The Diplomacy, 1 ed, Dar el-elelem for millions, Beirut Lebanon. 4) Al-Sheikh, Khaled Hasan : (1999 ), The Diplomacy & Diplomatic Law, 1 ed. Amman Jordan. 5) Attina, Fluvio : (1978 ), Diplomacy & Foreign Policy, edit. Franco Angeli, Milano Italy. 6) Fawq Al Aada, Smohi : (1973 ), Modern Diplomacy, 1ed., Dar al Yaqtha al-arabia, Beirut Lebanon. 7) Khalaf, Mahmud : (2008 ), Diplomatic Law, 1 ed., Dar Tasnim, Amman-JORDAN. 48