AMBASSADORS OF EUROPE: AN INSIGHT INTO THE EVOLUTION OF THE EUROPEAN UNION AND INTERNATIONAL DIPLOMATIC LAW

Transcription

1 AMBASSADORS OF EUROPE: AN INSIGHT INTO THE EVOLUTION OF THE EUROPEAN UNION AND INTERNATIONAL DIPLOMATIC LAW AUTHORS: ROHIT AMBAST* & VINAY TYAGI** ABSTRACT If the preceding century was marked by a rise of nations, the present century is witness to the emergence of global actors who transcend national and regional divides. The European Union is closer to a supra-national body than any other international organization known today, save perhaps the United Nations. Its capacity in law would lead many to believe that it is capable of attaining statehood. Yet, till such time the EU makes this ground-breaking transition, it would only enjoy those limited privileges as an international organization can enjoy under international law. Assuming that the EU s legal personality is not liable to protest, this abstract intends to probe the legal status of the immunity that the EU s members and representatives can and do enjoy in non-member states. Since the EU is not a party to the Vienna Convention on Diplomatic Relations, it cannot claim the same level of diplomatic privilege as states can. While national diplomats are entitled to almost absolute jurisdictional immunity, international organizations are to make to do with that much immunity as their function deserves. The functional necessity doctrine in international diplomatic law limits the level of immunity an international organization enjoys in respect of its purpose and functions it performs in a state s territory. Thereby non-official acts are prone to jurisdictional scrutiny. While most organizations determine their immunity through agreements with host states, they enjoy immunity in absence of such agreements as well. The author s attempt is to develop an understanding of what immunities do EU officials, delegates, representatives currently enjoy in international law and whether the EU ought to enjoy absolute jurisdictional immunity being more of a union than an aggregation of states. * Rohit Ambast, National Law Institute University, Bhopal; contact at rohitambast@yahoo.com; Ph. No.: ** Vinay Tyagi, National Law Institute University, Bhopal; contact at vinaytyagiadv@gmail.com; Ph. No.:

2 1. INTRODUCTION The laws of Diplomatic Immunity have been codified for a long time now and comprise of the rules affording protection to diplomatic personnel worldwide. These rules are to be found within the framework of the Vienna Convention on Diplomatic Relations of 1961 (hereinafter referred to as the Diplomatic Convention ) 1 and for the recipient diplomat they confer almost absolute immunity from the jurisdiction of the host state, both civil and criminal. The Convention along with the Convention on Consular Relations of 1973 has long held the field as the reference point for the basis of diplomatic and consular relations. Yet the Convention s applicability is limited to states only 2 and as such its rules cannot be applied to any other international actor. At the same time, the present international province plays host to several non-state actors who undertake representations in different states. One such actor is the European Union (hereinafter referred to as the EU ) and its internal bodies and institutions such as the European Commission (hereinafter, the Commission ) and the European Community (hereinafter, the Community ). The EU has developed a formidable international presence via its External Service and the delegations comprising the same which are based in third countries and at international organizations as well. Its representative manpower is presently entitled to diplomatic status akin to that found under the Diplomatic Convention. This results not by a direct application of the Convention but by agreements with the host state. So if the EU is to enjoy diplomatic status for its representatives it may do so by entering into agreements, known as Headquarters Agreements 3, or it may do with the immunity that it is entitled to under customary international law i.e. in the absence of any particular agreement governing immunity. The second aspect will be dealt with in greater detail for the better part of this paper as it would involve an inquiry into the EU s function along with the function of its internal institutions and bodies. The 1 Done at Vienna, April 18, 1961, 500 U.N.T.S. 95, 23 U.S.T. 3227, T.I.A.S [hereinafter referred to as VCDR ]. 2 VCDR, Art Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), p.90: The need for immunities is usually referred to in the constituent instrument and the details filed in a Headquarters Agreement. Often a state will need to make such treaties, including a headquarters agreement to which it is party, effective in domestic law by enacting appropriate domestic legislation.

3 determination of this function is necessary for understanding the diplomatic immunity that an organization such as the EU ought to be entitled to. 2. DIPLOMATIC IMMUNITY: THEORIES AND PERSPECTIVES The age-old practice of exchanging envoys has existed for centuries, dating back to the ancient civilizations of Greece and India 4. In fact, the rule of inviolability of the diplomatic person was already considered as a rule of customary international law during the 16 th century 5. Modern diplomatic law, on the other hand, has also endured for a long time and as evidenced by the words of one author, The international rules of diplomatic privileges and immunities, which are among the oldest examples of international law, are firmly entrenched in practice, treaties, and municipal legislation. 6 The International Court of Justice has further endorsed these rules as forming part of general international law Traditional Diplomatic Immunity Justificatory Theories The justificatory force of international diplomatic law was, for some time, based upon two prevailing theories that have now found disfavor with scholars. The first of these theories is Extraterritoriality, which postulates that the external mission is considered as being established on the territory of the sending state i.e. the state to which the mission belongs 8. Consequently, such a mission remains immune from the jurisdiction of the sending state. However, as critics explain, this theory has considerable flaws in that it fails to address the fact that external missions do in fact come under the jurisdiction of the host state for certain purposes (Art. 31 of VCDR for example) 9. The American jurist, Hohfeld, who developed his seminal work on jural relations, 4 Eileen Young, The Development of the Law of Diplomatic Relations, 40 Brit. Y.B. Int l L. 141 (1964), pp Denza, Diplomatic Law: A Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press, 2002), pp C.E. Wilson, Diplomatic Privileges and Immunities (Tuscon: University of Arizona Press, 1967), p.vii. 7 Case Concerning the U.S. Diplomatic and Consular Staff in Tehran (United States v. Iran), [1980] I.C.J. Rep.3, para B. Sen, A Diplomat s Handbook of International Law and Practice (Third Revised Edition, 1988), p.96; Leslie Shirin Farhangi, Insuring Against Abuse of Diplomatic Immunity, 38 Stan. L. Rev. 1517, 1520 (1986):.a diplomat is always on the soil of her native country, wherever she may actually go. 9 Sen, Ibid.

4 impliedly supports this argument where he argues that Immunity denotes freedom from the power of another 10. Therefore, the power of another, i.e. the host state, is always presupposed in every bestowal of immunity and cannot be negated for the purpose of justification. The second theory is that of the Representative Character of diplomats 11. As per this theory, a diplomat was considered a face of the sovereign he represented and was entitled to the same dignified treatment. Modern state practice, however, seems to subscribe to a third theory of Functional Necessity as the underlying rationale for granting diplomatic immunities 12. Accordingly, the Vienna Convention also, in recognition of this fact, embodies the functional necessity theory where it states that, the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States Types and Nature of Immunity under the VCDR To begin with, the general contents of Diplomatic Immunity must be unraveled. Traditionally, the following heads of immunities have been recognized: i) inviolability of the person, mission premises, archives and residence; ii) freedom of movement; iii) freedom of communication; iv) immunity from civil and criminal jurisdiction; v) exemption from taxation; and vi) other immunities and privileges. 14 It is a trite proposition that the broadest level of jurisdictional protection offered to diplomatic representatives is under the Vienna Convention. Save for three exceptions to the protection from civil action 15, the protective cover is plenary and immensely expansive in nature. Yet, it must be emphasized that this protection has functional underpinnings only and the three exceptions to immunity from civil suit have been 10 Hohfeld, Fundamental Legal Concepts, ch.1 in Dias, Jurisprudence (Fifth Edition, Butterworths London, 1985), p Sen, Supra Note 8, at p.97; Michael B. McDonough, Privileged Outlaws: Diplomats, Crime and Immunity, 20 Suffolk Transnat'l L. Rev. 475, 486 (1997). 12 Sen, Supra Note 8, at p.97; Veronica L. Maginnis, Limiting Diplomatic Immunity: Lessons Learned From the 1946 Convention on the Privileges and Immunities of the United Nations, 28 Brook. J. Int'l L. 989, 994 (2003) at VCDR, Preamble. 14 Sen, Supra Note 8, at p VCDR, Art. 31.

5 construed as patently non-functional acts 16. The Vienna Convention thus permits almost absolute immunity to a diplomat concerning criminal liability and a limited immunity with regards to civil and administrative liability 17. This protection is, it must be emphasized again, the prerogative of states only and other international legal persons, such as international organizations, may either seek other forms of conventional protection or resort to customary international law. 2.2 Immunities of International Organizations Privileges and immunities have been long recognized as being indispensable for the efficient working of international organizations 18. The immunities of international organizations may pertain to the organization itself, its personnel or its premises. For instance, the Protocol on the Privileges and Immunities of the European Communities, 1965, applies not just to the Communities but also to its personnel. At this juncture, a distinction must be drawn between Sovereign Immunity of an international organization and Diplomatic Immunity of its premises and personnel. Although this paper focuses on the latter type of immunity, this distinction must be addressed and kept in mind. Simply speaking, diplomatic immunity law is concerned with the immunities of diplomatic representatives and missions in the conduct of diplomatic relations while state immunity deals with the immunity of a state as an international legal person 19. State immunity is thus invoked in a case where a state finds itself subject to a lawsuit, but diplomatic immunity may only be invoked, for example, where a diplomatic representative is proceeded against or the mission premises inviolability is violated. 16 August Reinisch, International Organizations before National Courts (Cambridge, 2000), p.363: The immunity of diplomats which is frequently considered absolute in its scope is also in fact limited along functional considerations. Diplomatic law, however, instead of relying on a flexible (but also rather indeterminate) functionality standard, typifies situations clearly lying beyond functional necessity for which diplomats are not granted immunity. Article 31(1) of the Vienna Convention on Diplomatic Relations 1961 lists among these real actions, actions relating to succession and commercial activities outside official function. Although these relatively minor exceptions to immunity from suit of diplomats are certainly narrower than the functional restriction of the immunity of consular officers, the underlying acknowledgment of denying immunity for patently non-functional acts is an important fact for immunity theory in general. 17 For a detailed discussion on this point See Jonathan Brown, Diplomatic Immunity; State Practice under the Vienna Convention on Diplomatic Relations, 37 Int l & Comp. L.Q. 53 (1988), pp Joseph L. Kunz, Privileges and Immunities of International Organizations, (1947) AJIL, , p See Charles H. Brower, II, International Immunities: Some Dissident Views on the Role of Municipal Courts, 41 Va. J. Int'l L. 1, pp.1-20.

6 2.2.1 Basis and Types of Immunities Jurisdictional immunities of international organizations rest on a functional basis and find one of their earliest recognitions in the judgment of the International Court of Justice in the Reparations case where it was held that international organizations have legal personality insofar as the fulfillment of their functions is concerned 20. This statement is also reflected under the provisions of the Third Restatement of Foreign Relations Law where it is provided that international organizations are entitled to such privileges and immunities as are necessary for the fulfillment of the purposes of the organization, including immunity from legal process and financial controls, taxes and duties 21. In the context of the EU, jurisdictional immunities may arise only with respect to the Union, or its institutions such as the Community or Commission, and with respect to EU personnel. How are then international organizations to be accorded immunities in international law; especially in case of such organizations? In case of international organizations, the possibility of drawing analogies with states in the context of jurisdictional immunities does not find favor with many scholars and as Rosalyn Higgins argues, the basis of their claim to immunity is different as compared to states 22. As the following explanation demonstrates, international organizations may not enjoy the immunities under the Diplomatic Convention by analogy. The right of diplomatic representation is known by the Latin term jus representationis omnimodo meaning overall representation 23. The contents of such a form of representation may be seen from Article 3 of the Vienna Convention itself, although the list is merely illustrative 24. It becomes clear, therefore, that international organizations may not 20 ICJ Advisory Opinion on Reparation for injuries suffered in the Service of the United Nations [1949] ICJ Reports 174, at p.180 where it was held that: Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend on its purposes and functions. 21 Third Restatement of the Law: The Foreign Relations Law of the United States (1987) i. s.467 (r). 22 Higgins, Supra Note 3, at p L. Dembinski, The Modern Law of Diplomacy: External Missions of States and International Organizations (1988), p Article 3 reads: 1.The functions of a diplomatic mission consist, inter alia, in:

7 claim the same measure of immunity as diplomats do as a matter of right since the former cannot undertake the function of overall representation. Schermers comments on this point while holding that Several of these functions cannot be carried out by international organizations. Diplomatic relations of international organizations are necessarily of a different character from inter-state diplomatic relations. The interests of international organizations are limited to a specific field of operation; their powers differ from those of states. When discussing the diplomatic relations of international organizations, account must be taken of this difference. 25 The considerations of reciprocity also, applicable in traditional diplomatic relations, have no application when it comes to international organizations 26. International organizations may not enjoy the same immunities as sovereign states do. The immunities of international organizations have a different foundation and the old justificatory theories of Extraterritoriality and Representative Character must be discarded with respect to them 27. The rationale is self-evident since international organizations do not represent a specific territory or sovereign. Presently, the accepted norm remains that the grant of immunities is indispensable for an international organization to perform its functions and hence has a functional basis to it. This fact further finds considerable support in the writings of major scholars 28. (a) Representing the sending State in the receiving State; (b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; (c) Negotiating with the Government of the receiving State; (d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; (e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations. 2. Nothing in the present Convention shall be construed as preventing the performance of consular functions by a diplomatic mission. 25 H. Schermers, International Institutional Law (M. Nijhoff, 1980), p Stanley Hoffman, International Systems and International Law, in Klaus Knorr & Sydney Verba (eds.), The International System: Theoretical Essays (Princeton, 1961), , p Jan Klabbers, An Introduction to International Institutional Law (Cambridge, 2002), pp Joseph L. Kunz, Privileges and Immunities of International Organizations, 41 Am. J. Int'l L. 828, 847 (1947): the principle of functional necessity has become almost 'universally recognized' as the basis for international immunities ; H.F. Bekker, The Legal Position of Intergovernmental Organizations 97 (M. Nijoff, 1994), p.111: the functional necessity doctrine seems 'universally accepted' as the justification for international immunities ; Higgins, Supra Note 3, at p.90: International Organizations, though not accredited to a particular country, are none the less located in a particular country. They require certain privileges and immunities from the jurisdiction of that state, and from all its member states should there be a potential of its acts or staff or property coming under their

8 3. EUROPEAN OR INSTITUTIONAL REPRESENTATION: IDENTIFYING THE ACTOR Today, it is difficult to perceive Europe as different from its constituent nations. While remarking on this unique nature of the European continent, one has to keep in mind that there has not been any sudden transformation in the way Europe is seen by the world. What we have is a gradual process tracing its roots to 1951 and the advent of the European Coal and Steel Community right up to present times where we are witnessing the possible growth of a European State. While considering the issue of diplomatic protection of representatives there is an inevitable impact, both present and subsequent, of the activities and competence of the EU and its institutions which lend credence to the argument for abandonment of a restricted set of immunities. 3.1 The Question of Legal Personality Since we are dealing with the conduct of external relations by an international actor, the fundamental requirements under international law must naturally be taken care of; one of them being that of legal personality. Legal personality here means legal personality under public international law i.e. international legal personality. The term, as per the foundational precedent of the International Court of Justice in the Reparations case 29, implies that an international person, as a subject of international law, possesses rights and obligations and has to capacity to assert its rights Legal Personality of the Community The legal personality of the Community, unlike that of the EU, has not been in dispute and on that account neither is its external competence. This was confirmed by the European Parliament resolution of November, 1960 where it was declared that the European Communities enjoy the right of active and passive legation by virtue of their international legal personality 30 and by the ECJ as well 31. Article 281 of the EC Treaty jurisdiction also. These immunities are those that are necessary for the fulfillment of the purposes of the organization. 29 Reparations case, Supra Note 20, at p Res. of 19 November, 1960, OJ 1496/ Case C-327/91, France v. Commission, Rep. (1994) I-3674, paras where it was held that: it is the Community alone, having legal personality pursuant to Article 210 of the Treaty, which has the capacity to bind itself by concluding agreements with a non-member country or an international organization.

9 expressly confers this legal personality and Article 300 further provides the treaty making power. The Community s personality is objective in nature and is largely recognized among third states and international organizations which support its claim to legal personality 32. The fact that the Community has legal personality further provides it competence with regards to the following areas: i) conclusion of treaties; ii) communicating with other legal persons; iii) enjoying privileges and immunities in third states; and iv) initiating international claims and being subject to the same 33. It must still be remembered that the Community does not always act exclusively and as Rafael Leas-Arcas points out, In the framework of the EU, there is Community competence, national competence and mixed competence Legal Personality of the EU The Treaty on the European Union (TEU) 35 did not provide the EU with an explicit legal personality. The ramifications of a lack of international legal personality are fairly obvious and it would suffice to state that the EU would be handicapped with regards to its external competence were such competence to elude it. This paper, however, subscribes to arguments that support the existence of the international legal personality of the EU. It is contended that on the basis of Articles 24 and 38 of the EU Treaty, the EU has the capacity to conclude international agreements and hence it possesses a certain functional personality in law. Several scholars have noted that Article 24 indeed does constitute a treaty making power of the EU and hence proves its legal personality 36. Additionally, every agreement that has the EU as a contracting 32 Rachel Frid, The Relations between the EC and International Organizations: Legal Theory and Practice (George M. Von Furstenberg ed., The Hague; Boston: Kluwer Law Int'l 1995); Ian Macloeod, Ian Hendry & Stephen Hyett, The External Relations of the European Communities 31 (Harold Jacobson & Edith Weiss eds., Oxford: Clarendon Press 1997). 33 Frid, Ibid. 34 Rafael Leal-Arcas, Unitary Character of EC External Trade Relations, 7 Colum. J. Eur. L. 303, 355 (2001), p Treaty on European Union (Maastricht), Feb. 7, 1992, 1992 O.J. (C 191) 1 [hereafter TEU ]. 36 Rafael Leal-Arcas, Exclusive or Shared Competence in the Common Commercial Policy: From Amsterdam to Nice, 30 Legal Issues Econ. Integration 3, 3-14 (2003); Rafael Leas-Arcas, EU Legal Personality In Foreign Policy?, 24 B.U. Int'l L.J. 165 (2006); Thomas C. Fischer, An American Looks at the European Union, 19 Emory Int'l L. Rev (2005); Stephen C. Sieberson, Did Symbolism Sink the Constitution? Reflections on the European Union's State-Like Attributes, 14 U.C. Davis J. Int'l L. & Pol'y 1 (2007); Maria Gavouneli, International Law aspects of the European Union, 8 Tul. J. Int'l & Comp. L. 147 (2000); Esa Paasivirta, The European Union: From an Aggregate of States to a Legal Person? 2 Hofstra Law & Pol'y Symp (1997).

10 party with non-member states or organizations manifests the recognition of the EU s international personality by such persons. The question of the EU s legal personality has to be understood in the context of the treaties of Maastricht, Amsterdam, Nice and Lisbon. We can then observe that the significant omission in 1992 may soon be rectified. With the Lisbon Treaty envisaging a single European actor in the future, the assertion of the EU s personality at this stage might just become a purely academic endeavor. The Lisbon Treaty 37 has amended the Maastricht Treaty and if it comes into force, which would not be until 2009, the European Community will merge with the EU so as to create a single, international actor. This would have obvious implications on the issues dealt in this paper since the Lisbon Treaty provides for the conversion of Commission Delegations in third countries and international organizations to EU Delegations Managing External Relations Diplomatic representation of European interests has been very conspicuous of late. At this stage, the nature and source of this representation must be identified. Presently, Europe is not represented globally with respect to every sphere of inter-state activity. We are yet to witness a stage where member states of the EU would no longer require maintaining huge numbers of diplomatic personnel and embassies worldwide. European external representation in the future may take any one of the following forms: 1) Exclusive institutional representation; 2) Shared representation; or 3) Divided Representation. Out of the three forms, the third form reflects the prevailing state of affairs. Europe as a whole is represented at an institutional level today but only as to a limited set of intercourse with third parties. Diplomatic exchanges by European institutions are taking place as we speak, despite considerations of competence, sovereignty and supranationalism. A clarificatory point may be mentioned here in that the term diplomacy ought not to be equated with foreign policy as the latter represents the substance of inter-state relations and policy 37 Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community, CIG 14/07, Dec. 3, 2007 [hereafter Lisbon Treaty]. 38 Lisbon Treaty, Art ).

11 goals while the former is the process of negotiation and political dialogue between international legal persons 39. External relations may now take any one of the following forms: 1) autonomous legislation, to set out rules for relations for the outside world; 2) negotiation, to arrive at agreements with third parties; and 3) dialogue, to gain a better understanding of other parties to better determine their own attitudes 40. Diplomatic representation may, on that account, be called for in all three of the above-mentioned cases. A prime and self-evident example of diplomatic intercourse involving a European actor is the establishment of worldwide delegations by the Commission in order to further Community policy interests 41. Yet another example would be the establishment of EU Police Missions in Bosnia-Herzegovina 42 and the Republic of Congo 43 both of which enjoy the status of a diplomatic mission under the Diplomatic Convention. We can see that diplomatic exchange is being carried out by EU institutions and the EU itself and, therefore, questions of competence and function would only have a bearing on the extent and nature of immunities such missions enjoy under customary international law and not on the source of representation Role of the Community & Commission European external representation is undoubtedly spearheaded by the European Commission, which is the chief spokesperson of the EU in world affairs 44, specifically in the area of exclusive Community policy where the Commission is empowered to negotiate and conclude Community agreements 45. The Commission also has the following important executive powers in the sphere of EU external relations with respect to: 1) determining and conducting external trade relations under Article 113 of 39 Batora, J., Does the European Union Transform the Institution of Diplomacy?, Clingendael Discussion Papers in Diplomacy 87, The Hague, Clingendael Institute, July Jacques H.J. Bourgeois, External Relations of the European Community, 22 Fordham Int l L.J. S149 (1999). 41 TEU, Art OJ L 293/2 of 29 October OJ L 256/62 of 1 October Treaty Establishing the European Community, Nov. 10, 1997, O.J. (C 340) 03 (1997) 37 I.L.M. 56 (1998) [hereinafter EC Treaty], Arts EC Treaty, Art. 300.

12 the EC Treaty; 2) negotiating and managing responsibilities in respect of the various external agreements of the EU; 3) representation and participation at international organizations; 4) acting as an intermediary between the EU and third states; 5) managing applications with respect to EU membership; and 6) being fully associated with activities under the CFSP 46. In theory, these are the basic powers that the Commission has in the field of external relations and these would naturally serve as the limiting framework of its functional capacity as regards external relations Role of the EU EU relations with third countries have been tremendous in the field of trade relations but not in the field of foreign relations. Such a state of affairs flows directly from member-state concerns in parting with sensitive and important sovereign domains 47. This reluctance is confined not merely to foreign policy relations but to trade relations as well 48. The reality is that foreign policy decision-making within the EU still remains an intergovernmental affair with unanimity prevailing over the qualified majority voting under the Community. The Amsterdam Treaty sought to bring about some changes in this situation but as Joerg Monar points out for the European Union's foreign affairs system the Treaty of Amsterdam brings only fragments of a reform 49. Nevertheless, the role of the EU in foreign affairs is witnessing changes. In areas of foreign policy, there is obviously the delicate ground of the role of the EU vis-à-vis member states under the Common Foreign and Security Policy (CFSP), which represents the intention of member states to speak together and with common positions on areas of foreign policy 50. Here, the EU s growing competence in this field, enhanced by several instruments transferring competence to the Community, 46 N. Nugent, The Government and Politics of the European Union (Macmillan, 4 th edn., 1999), p John Peterson & Helene Sjursen, Conclusion: The Myth of the CFSP?, in A Common Foreign Policy for Europe? Competing Visions of the CFSP, 169 (John Peterson & Helene Sjursen, eds. 1998). 48 Rafael Leas-Arcas, The EU Institutions and their Modus Operandi in the World Trading System, 12 Colum. J. Eur. L. 125 (2006). 49 Joerg Monar, The European Union's Foreign Affairs System after the Treaty of Amsterdam: A "Strengthened Capacity for External Action?" 2 Eur. Foreign Aff. Rev. 413, 434 (1997). 50 R. Wessel, "The Multi-Level Constitution of European Foreign Relations", EUI Workshop Paper, April 2002, pp. 1-35, at 22.

13 has been noted and commented on by scholars 51. What we are witnessing then is a vigorous interplay between several actors all of which takes place within the larger framework of the EU. 4. THE PROTECTION PARADIGM One of the important questions that this paper will aim to develop and answer is that of the extent of immunity that EU officials have and ought to have in light of their function. It is given that such immunities may, by way of agreement, transcend the protection level of the Convention and allow unhampered functioning of EU s diplomatic exercises. Yet we must know what level of protection would customary international law permit and whether the immunity in both cases is commensurate or not. Rosalyn Higgins stresses the importance and necessity of such an inquiry in case a municipal court does adjudicate upon the immunities of an international organization Present sweep of immunities Diplomatic representation by an international actor stems from the latter s international legal personality. This comes about from the right of legation, which the Community has and which is considered as one of the attributes of international legal personality 53. Presently, there are close to 118 official European Commission Delegations worldwide tasked with (i) presenting, explaining and implementing EU policy; (ii) analyzing and reporting on the policies and developments of the countries to which they are accredited; and (iii) conducting negotiations in accordance with a 51 See Supra Note Higgins, Supra Note 3, at p.92: Firstly, there may exist no relevant headquarters agreement. Secondly, it may be necessary to know whether the terms of the headquarters agreement are exhaustive of the immunities that may be claimed, or whether, if the text is deficient, other immunities may be claimed by reference to customary international law. Thirdly, in some jurisdictions the court will not give effect to the terms of a treaty unless that treaty has been incorporated in domestic law. If no such law has been enacted, or if its terms do not fully match those of the treaty, the question may arise as to whether there is none the less an obligation incumbent upon the local courts by virtue of the requirements of customary international law. 53 Frid, Supra Note 32, at p.30: The EC as an international legal person with external relations powers possesses the right of legation which is a typical attribute of international legal personality. The Community s right of legation is not confined to relations with other international persons by way of exchange of information. The entry of the Community as a legal person into international negotiations is based on the use of organs empowered to represent it and recognized as such by other legal persons.

14 given mandate 54. Schermers opines that these delegations may be considered as embassies 55. However, these delegations are primarily concerned with the trade and financial responsibilities of the Commission and as such they are limited in their functional capacity. Assuming the absence of any host agreements with any non-eu country, we can only assert that customary law would permit only a functional immunity to the Commission Delegations and the representatives therein. 4.2 Immunities of the EU and Community Personnel The international law of immunities pertaining to international organizations may never be able to sufficiently accommodate the EU within its realm. Indeed, the everevolving character of the EU poses several difficulties for a clear, principled understanding of such an accommodation. Functional immunity, the customary standard of immunities of international organizations, is conceptually puzzling and unsystematic in practice. The present norm remains that of granting limited immunities to international organizations with the rationale resting on the differences between the characteristics of states vis-à-vis organizations. Today, the EU is possibly capable of performing the same traditional roles of states albeit in a supranational capacity What is Functional Immunity? Amerasinghe rightly concludes that customary international law offers little to say on the privileges and immunities of international organizations and resort must be had to treaties and conventions 56. This approach is vindicated by practical considerations as well since the functional immunity standard is imprecise and capable of posing difficulties 57. This is despite the fact that the functional basis remains the underlying factor for granting immunities and privileges to international organizations 58. Functional immunity is an intricate concept to deal with and as August Reinisch puts it, The fundamental problem is clearly that functional immunity means different, and Schermers, Supra Note 25, at o.c. note No.6, para C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (Second Edition Cambridge University Press 1996), p Reinisch, Supra Note 16, at p Amerasinghe, Supra Note 56, at p.316.

15 indeed contradictory, things to different people or rather different judges and states 59. Interpretation of the rules of functional immunity by municipal courts may lead to divergent results, many of which may not be conducive to the interest and objectives of international organizations. The first instance of a functional immunity standard is Article 105 of the Charter of the United Nations 60. A similar standard may also be found under Article 103 of the Organization of American States 61. Functional immunity can, therefore, simply mean the kind of immunity from the jurisdiction of a state that an international organization requires in fulfilling its functions 62. Therefore, the concept works to distinguish between fields of activity which remain immune and those that do not; which may be paraphrased as official and non-official acts. Reinisch explains the logic of this theory where he states that, The advantage of a concept of immunity for official activities could lie in the fact that it makes clear that not all activities contributing to the functioning of an international organization, but rather only such acts that are intrinsically related to its official functions, merit exemption from the adjudicative power of a domestic court Reinisch, Supra Note 16, at p Article 105 reads: 1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes. 2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization. 3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose. 61 Article 103 reads: The Organization of American States shall enjoy in the territory of each Member such legal capacity, privileges and immunities as are necessary for the exercise of its functions and the accomplishment of its purposes. 62 Michael Singer, Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns, 36 Va. J. Int'l L. 53 (1995), pp Reinisch, Supra Note 16, at p.338.

16 4.2.2 Rationale for broad immunities Diplomatic relations by the Community have been considered as an exception to the nature of relations that international organizations normally establish 64. This should, this paper argues, constitute sufficient basis for extending the immunities possessed by national diplomats to international organizations. The rationale of functional necessity applies in both the cases of national diplomats and international organizations. August Reinisch notes in this regard that the fact that the functional necessity standard is common to both states and organizations justifies assimilating their immunities 65. This fact is considered relevant by other scholars as well 66. The European Commission Delegations, although having a limited mandate, have certain responsibilities and are involved in several spheres of activity, a prime example being the Commission Delegation in the United States 67, which was granted diplomatic status and the accompanying privileges and immunities way back in These areas of activity are in fact common to most Commission delegations 69. Broadly speaking, the Commission delegations are also not just confined to commercial negotiations but are competent in fields such as agriculture, fisheries, environment, transport, health and safety as well 70. What can be deduced then is that on a representational plane these delegations are capable of performing tasks which may 64 Schermers, Supra Note 25, at p Reinisch, Supra Note 16, at p.363: It appears plausible that the rationale of functional immunity common to diplomatic and consular law and the law of international organizations may justify the transfer or incorporation of certain features of the former to the latter. From a historical point of view, privileges and immunities of international organizations are sometimes viewed as a development of diplomatic law and p.364: The most plausible justification, possibly allowing analogies to diplomatic and consular law, which seems more important than historical parallels, might lie in their common functional necessity rationale. When looking for a modern justification for the grant of privileges and immunities to diplomats, the traditional extraterritoriality theory and doctrines stressing their representative character are clearly no longer prevalent. They have largely been replaced by a functional necessity theory, the principle of ne impediatur legatio. Thus, a comparable principle of ne impediatur legatio for international organizations could well be justifiable and lead to the adoption of diplomatic immunity principles in the context of international organizations 66 Frid, Supra Note 32, at p.28: The extent to which missions of international organizations may be assimilated with diplomatic missions of states will largely depend on the tasks attributed to the missions of the organization. 67 As per the official website of the Delegation, the Delegation is tasked in the following spheres: 1. Economic and Financial Affairs; 2. Food Safety, Health and Consumer Affairs; 3. Political and Development; 4. Press and Public Diplomacy; 5. Science, Technology and Education; 6. Trade and Agriculture; and 7. Transport, Energy, Environment and Nuclear Matters Europa van Morgen (March, 1972), at Nataliya Neznamova, Does the European Union need a Common Diplomatic Service, available at: (last visited March 31, 2008). 70

17 also be performed by national diplomatic missions. The rationale for broad immunities is also strengthened by the fact that with respect to certain activities, trade for example, the Community is competent even to the exclusion of member states 71. Moreover, with increasing number of agreements being entered into internationally by the Community, its competence with respect to the field covered under those agreements is also augmented 72. The Commission delegations are further obliged, under Article 20 of the EU Treaty, to cooperate with Member state embassies in third countries in ensuring the implementation of common positions and joint actions developed by the Council 73. Such characteristics of the Community, which are unlike any other organization known today, merit broad jurisdictional privileges and immunities The Functional Immunity Caveat The concept of functional immunity raises the same problems that are raised with respect to the jure imperii-jure gestionis distinction in the law of state immunity; which is essentially the distinction between official and non-official functions 74. The fact that the functional standard is difficult to understand and apply has led to a lack of definitive jurisprudence in this matter 75. An observation of Jenks is relevant here 71 EC Treaty, Art Leas-Marcas, Supra Note 48, at pp : Treaties entered into by the Community perform dual functions. Firstly, they limit the competences of member states, who by implication become contracting parties to the treaty instrument, and secondly, they transfer competence to the Community itself. 73 Article 20 reads: The diplomatic and consular missions of the Member States and the Commission delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that the common positions and joint actions adopted by the Council are complied with and implemented. They shall step up cooperation by exchanging information, carrying out joint assessments and contributing to the implementation of the provisions referred to in Article 20 of the Treaty establishing the European Community. 74 A.S. Muller, International Organizations and their Host States (Kluwer Law International, 1995), p.182: In spite of the constant insistence-for doctrinal reasons-upon the functional necessity concept in this chapter, it must be emphasized that the notion of functionality is not a panacea for all problems connected with the jurisdictional immunity of international organizations. Asking whether an act of an international organization was an activity necessary for its functioning in accordance with its mandate will, in all likelihood, not provide an easier answer than the question, borrowed from the doctrine of state immunity, whether an act was performed iure imperii or iuer gestionis. 75 Klabbers, Supra Note 27, at p.151; Niels M. Blokker & Henry G. Schermers, Mission Impossible? On the Immunities of Staff Members of International Organizations on Mission, in Gerard Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of his 80 th Birthday (The Hague, 1998),

18 where he contends that the determination of any particular privilege or immunity is more a matter of judgment rather than principle 76. Klabbers, while discussing the case of United States v. Melekh et al. 77, further demonstrates the conceptual difficulties in the concept of functional necessity itself 78. The foregoing views of scholars reflect a lukewarm support for the functional necessity theory. Practical experience with the theory has further exacerbated the difficulty. It is no wonder then that international organizations prefer to have conventional protection rather than relying on customary international law. However, the functional necessity standard may become applicable in certain cases wherein a municipal court may prefer reliance on customary international law despite an agreement governing immunities. For example, in the case of J.J. Zwartveld and others 79, decided by the European Court of Justice in 1990, a question arose as to whether Commission of the EEC was entitled to immunity in refusing to permit its archives to be used as evidence in a court proceeding. The argument on part of the Commission was based upon the absolute inviolability of archives that the Protocol on the Privileges and Immunities of the European Communities of 1965 permitted. The court however deduced a functionally limited standard of immunity for the organization based upon the duty of mutual cooperation with national judicial authorities enshrined under Article 5 of the EEC Treaty 80. Similar duties of cooperation with third countries are also to be found in the EC Treaty concerning areas such as environment 81 and development 82. A municipal court faced with the question of immunity may not always be inclined to pay deference to a Headquarters Agreement and may instead rely on the internal order of the organization and 76 C. Wilfred Jenks, International Immunities (Steven & Sons Ltd., 1961), p ILR Klabbers, Supra Note 27, at p.150: The very idea of functional necessity has occasionally caused confusion on the conceptual level. Thus, in United States v. Melekh et al., in which the defendant (a UN official) was charged with espionage, it was argued that since espionage is not part of the functions of the United Nations, it is not an activity to which immunity could possibly apply. Yet, the activity may well be engaged in to further the purposes of the organization, or in the course of doing something else which in itself clearly be a defensible as an official activity. 79 Case 2/88, ECJ, 13 July Reinsich, Supra Note 16, at p EC Treaty, Art EC Treaty, Art. 181.

19 customary international law in order to limit the immunity that may otherwise be enjoyed. The EU and its institutions are permanent and their influence in the international arena is growing considerably. As this influence grows, the relative competence and functions of the EU and its institutions will also expand. In this light, the functional necessity theory is not effectively contained to remain applicable in cases of increasing functionality. Klabbers has noted this point and forewarns that differing views on the functional needs of an organization prevent a uniform application of the functional necessity rule 83. Today, with increasing EU and Community competence in foreign affairs, expansion of trade activities and the idea of a single, unified entity after 2009, the functional necessity theory cannot therefore remain an appropriate basis for governing the privileges and immunities granted to representatives of these institutions. 5. CONCLUSION The preceding discussion has highlighted the considerable lacunae present in respect of the functional necessity theory. Customary international law of the immunities of international organizations is still not consistent enough and the jurisprudence of municipal courts reveals little uniformity in practice. Indeed, the observation of Jenks, given back in 1961, still holds true in this regard 84. In the meanwhile, European external representation has proliferated and so far the immunities of European representatives have not been agitated in a municipal court. Considering the difficulties in reliance on customary international law and the functional necessity theory, it would appear that the practice of entering into Headquarters Agreements remains an effective and sensible option. Although scholarly opinion argues in favor 83 Klabbers, Supra Note 27, at p.152: it would seem that the idea of functional necessity would require the legal position of international organizations to remain relatively stable. After all, it is unlikely that the needs of an organization change overnight, as long as other circumstances remain constant. And while it is probably true that different observers can come up with different views of an organization s functional needs, the variety of judicial pronunciations on the scope of organizational privileges and immunities suggests that predictability remains difficult to attain. 84 Jenks, Supra Note 76, at p.26: the law defining their [international organizations] status and responsibilities is too little developed, both internationally and in an even more marked degree, municipally, to be safely left to municipal interpretation; the danger being that it may be consistently interpreted in a manner restrictive of the future development of international organizations is still too widespread and acute.