Diplomatic Immunities and Privileges in Jordanian Legal System:

International affairs have been through various phases of evolvements till reached its current form. With the aim of developing and regulating the relations between countries, a category of public employees emerged, who work at such international relations; among these, the diplomatic agents. Diplomatic agents are considered as an extension for their countries on foreign lands; international conventions have granted diplomatic agents some privileges and immunities; which are the subject of this article. We are going to present this subject through the following points:

Definition of Diplomatic Agents;

The Source for Regulating Agents in Jordan:

Justification for Discrimination and Immunities of Diplomatic Agents:

Diplomatic Agents’ Immunities and Privilege:

The Application of Diplomatic Agents’ Immunities and Privilege

Juridical Applications

Conclusion

Definition of Diplomatic Agents;

Before discussing diplomatic agents’ immunities and privilege in Jordanian legal system, it is important to understand the concept of diplomatic agents. Diplomatic agents have a particular importance in international actions; since they are considered the connecting link between their state and the Receiving State.

The expression “diplomatic agents’ means the head of the mission and the diplomatic staff under his chairmanship. Paragraph (E) of the First Article of Vienna Convention on Diplomatic Relations of 1961 has stated the following: “A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission;” diplomatic agents are the official representative who interprets the attitudes and positions of their state in the state to which he/she is sent; thus, they are considered the official source for details and information related to their country’s policy and position towards the Receiving State. In other words, they are considered the official communication tool between their state and the state to which they are sent.[1]

The Source for Regulating Agents in Jordan:

There is no Jordanian independent system regulates diplomatic agents’ carrying out of their mission in Jordan; rather, the source for regulating their mission is Vienna Convention on Diplomatic Relations, which was published in the Official Gazette, Issue No. 4910, dated 01/06/2008; since the Hashemite Kingdom of Jordan attested the Convention on 28/04/2008. Ever since, the Convention is considered binding and shall be applicable in Jordan.

In this regard, Decision No. 776 of 2012 – Court of Cassation in its penal capacity, was issued on 09/05/2012; stating that: (It is established that international conventions have the status of ordinary law when attested by the country.

However, this convention is given a higher authority than ordinary law, and lower than the constitution, when any of the provisions of such international conventions contradicts the national law.)

Justification for Discrimination and Immunities of Diplomatic Agents:

The basic principle is that all persons shall be treated equally by the law, without discrimination; however, there is an exception to that rule; for particular considerations, the legislation has granted some individuals immunities, not for their persons, but for the positions they hold that require protection from the pressure that might affect their mission; for example, members of parliament, as they have immunity against the pressure of executive authorities.

On that approach, international conventions worked on imposing such immunities and some privileges for countries’ representatives and international agents, in order to provide them with the opportunity to carry out their mission without pressure by the state on which land they are present.

Since diplomatic agents’ carrying out their mission to the fullest require sort of independence regarding their acts, and being treated with a significant respect and care; therefore, a set of privileges have been sanctioned by custom for diplomatic agents, which step them up from ordinary persons’ level and ensure that they receive the proper respect required for their representative capacity. Among these privileges, some have gained a legal capacity, and some of them remained, until near time, within the limits of courtesies.[2]

Diplomatic Agents’ Immunities and Privilege:

In the following paragraphs, we will introduce some of the immunities and privileges of diplomatic agents in the Jordanian legal system; through the following points:

1. Personal Inviolability:

Personal inviolability of diplomats requires the Receiving State to ensure the extent of freedom required for agents to carry out their mission, by preserving their freedom and preventing them from arrest or detention. In this regard, Article No. (29) of the Convention stated that (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 order to preserve the representative’s performance of the mission; in accordance with Article No. (25) of the Convention, which stated that (The receiving State shall accord full facilities for the performance of the functions of the mission.)

It is worth noting that diplomat agents’ personal inviolability is an established privilege, which shall not be waived by himself or by the Sending State; since it is a right attached to his person due to his capacity as a human being and as a representative for a foreign country; while Juridical immunity may be waived by the Sending State since it is the one who decides its own interest.[3]

2. Freedom of Movement and Travel:

Among the privileges ensured by the Jordanian Jurisdiction for diplomatic agents under attestation on Vienna Convention is that it ensured for the agents the freedom of movement and travel inside the Receiving State. In this regard, article No. (26) of the Convention stated that (Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security, the receiving State shall ensure to all members of the mission freedom of movement and travel in its territory.)

3. Inviolability of the Agents’ Residence and Correspondences:

Vienna Convention also ensured protection for the agents’ private residence and correspondences; since it granted the envoy the same ensured inviolability of the mission’s official premises and correspondences. Residence in this context not only means permeant places of domicile the agents take as residence, but also even if they were temporary; such as hotels rooms. In this regard, Article No. (30) of the convention stated that:

• The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.
• His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability.

4. Immunity from Jurisdiction:

Immunity from jurisdiction, from our point of view, is based on two sources; the first source is Vienna Convention, which ensures protection for diplomatic agents from being subject to practices of pressure by the Receiving State, through prosecution, which prevents them from carrying out their mission or makes them respond to the requests of those who practice pressure upon them. The second source is international custom considering that diplomatic agents are representatives for their state, and considered as a regional extension for their country; thus, they shall be subject to their country’s laws, and not to the laws of the Receiving State.

Diplomatic agents’ immunity from jurisdiction shall not mean that they are above the law, but it means that they are liable under the law of their country, or Receiving State, when their country waives the immunity.

Article No. (31) of Vienna Convention stated that:

• 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:
  1. 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;
  2. 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;
  3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
• A diplomatic agent is not obliged to give evidence as a witness.
• No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (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.
• The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

It is noted that the justification for the exceptions provided for diplomatic agents’ immunity from jurisdiction is juridical justice; since the cases that have been excluded necessities the requirements for judgment to review the case in accordance with the same State in which the dispute has been raised.

• Waiving the Immunity from Jurisdiction:

Immunity from Jurisdiction is a right for the State represented by the diplomat, and not for his person. Therefore, the state is entitled to waive such immunity. Such waiver is regulated by Article No. (32) of the Convention, which stated that:

• The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State.
• Waiver must always be express.
• 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 counterclaim directly connected with the principal claim.
• 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 judgement, for which a separate waiver shall be necessary.

Miscellaneous Privileges:

There are some other privileges of which the diplomatic envoy enjoys during performing his mission. Those privileges have been provided in the Convention, and may be introduced through the following provisions:

• Exemption from Social security Provisions:

Article No. (33/1)- Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect to services rendered for the sending State be exempt from social security provisions which may be in force in the receiving State.

• Exemption from Taxes:

Article No. (34)- A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

1. Indirect taxes of a kind which are normally incorporated in the price of goods or services;
2. Dues and taxes on 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;
3. Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of article 39;
4. Dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;
5. Charges levied for specific services rendered;
6. Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of article 23.

• • Exemption form General Costs:

Article No. (35)- The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind whatsoever, and from military obligations such as those connected with requisitioning, military contributions and billeting.

Article No. (36) 1. The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar services, on:

1. a) Articles for the official use of the mission;
2. b) Articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.

2.The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article, or articles the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized representative.

The Application of Diplomatic Agents’ Immunities and Privilege

Diplomatic Agents’ Immunities and Privilege shall be applicable from the moment of holding the position’s functions, until the end of his service for any reason, or due to death. In the event of death in particular, the members of the envoy’s family shall remain enjoying such privileges for a reasonable time, until the leave the country.

In this regard, article No. (39) of the Convention stipulated that:

• 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.
• 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 in case 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.
• In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.
• In the event of the death of a member of the mission not a national of or permanently resident in the receiving State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the movable property of the deceased, with the exception of any property acquired in the state the export of which was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable property the presence of which in the receiving State was due solely to the presence there of the deceased as a member of the mission or as a member of the family of a member of the mission.

As well, Article No. (44); which regulate violation of such privileges in the event of armed disputes; as stipulated that (The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.)

Juridical Applications

Decision No. 18832 pf 2012 Appeal – Oman, issued on 22/05/2012.

* Diplomatic agents’ judicial immunity from civil liability in cases where the source of obligations is a contract, immunity is intended to exempt diplomatic agents from civil proceedings filed against them; which means that the Receiving State shall not prosecute them for non-payment of debts; this does not include:

Property Claims: Judicial Immunity may be invoked in in-rem cases, including property of movable and immovable property that exist at the Received State.

Legacies and Inheritance Claims.

Claims related to liberal professions or business, since it is established that regarding the private business diplomatic agents carry out, which are not related to and official function; they do not enjoy their regular privileges; while if they carry out business, goods, securities, debts, disputes and cases filed, are all considered under the jurisdiction of courts.

We refer two incidents related to Jordanian missions abroad, have been reviewed for the purpose of following up reporting by diplomatic means; where the Jordanian Embassy’s funds have ever been seized in Italy on the grounds that the case is related to labors rights against the Embassy, and also, our embassy in Brazil has been seized and its building has been sold in public auction due to a dispute regarding the building of the embassy, apart from seizing a number of planes due to commercial disputes related to paying the prices of  fuel (reported that the aforementioned establishment was a public institution).

Decision No. 650 pf 2022 – Administrative Court, issued on 28/12/2022.

* Diplomatic Agents enjoy exemption from local jurisdiction in civil matters they proceed in their official capacity; since the nature of their mission in the Receiving State and its requirements for preserving their independencies in carrying out their mission contradict their prosecution as any regular person. When the respondent charged with carrying out business enjoy diplomatic immunity granted by law to political agents; and since the subject of the claim is related to the functions of his position as a political representative for his/her state; thus, shall not be subject to the local jurisdiction in this regard.

2- The power of attorney granted to the diplomatic agent by the Defendant against whom the claim was filed, in addition to his position; the attorney may attend the case in the capacity in which the case was filed against the Defendant.

Decision No. 5807 pf 2021 – Amman Court of First Instance, issued on 29/06/2022.

Whereas Article No. 31 therein regulates diplomatic juridical immunity;

Since diplomatic agents enjoy several diplomatic privileges within the territory of the Receiving State that ensure carrying out their missions properly; some of which are related to juridical immunity in disputes arising between them and others;

It is inconceivable to carry out diplomatic functions to the fullest without exempting the diplomats from the regional jurisdiction of the Received State and enjoying personal inviolability. Since Vienna convention on Diplomatic Relations has not defined diplomatic immunity, rather, it has been identified as an exemption, exception or non-subjectivity of diplomatic agents to local jurisdiction regarding any of their functions or acts, to ensure their independence and to prevent impeding the functions undertaken by them.

Kindly, refer to plea with diplomatic juridical immunity before national jurisdiction – Yazzen Shehata – Master’s Thesis 2015 – Mutah University.

By source to the provision of Article No. 31 of Vienna Convention, the court concludes that it granted the diplomatic agent an immunity against the jurisdiction of the received State regarding penal cases, and specified civil claims, since it excluded in-rem cases related to private properties located at the Receiving State from the immunity, where the diplomatic agent acts regarding the same for the interest of the Sent State for the purposes of the mission.

Thus, whereas that case was not in-rem case related to properties as aforementioned;

Since its subject is infringement and claiming with compensation; such exclusion shall not be applicated in the said case, and there shall be no jurisdiction for the Jordanian courts accordingly for reviewing the dispute on one hand;

On the other hand, the property, subject matter of dispute, is not a private property for the diplomatic agent, but it is the premises of the diplomatic mission itself, and the premises of the Embassy of the State of Vatican; which mean that the works attributed to the Defendant are for the purposes of the mission, and not for personal purposes of the diplomatic agents.

 Moreover, in the provisions of article No. 22 of Vienna convention, the premises of the mission has been granted an immunity against entering or inspecting the premises since it is affiliated to the Sent State and considered as extension for its lands.

Kindly, refer to The Diplomatic Law for Ali Sadek Abou-Heif – Page No. 484; and also refer to the Decision of the Jordanian Court of Cassation No. 3085/2013 dated 04/11/2015 – Justice Publications.

Whereas the court of Cassation, in many of its decision, referred to excluding labors cases from the diplomatic juridical immunity; kindly, refer to the Decision of the Jordanian Court of Cassation No. 928/2021), and its Decision No. (2135/2020); which confirms that the source is that the diplomatic mission shall enjoy diplomatic juridical immunity, and the exception is in the event of labors cases or in-rem cases related to properties.

Therefore, whereas the Under-secretary of Vatican Embassy, before referring to the merits of the case, adhered to the lack of jurisdiction of the Jordanian courts to review the case and obligating the Plaintiff with paying the court costs and expenses, in addition to an amount of (50) dinars against attorney’s fees.

Conclusion

In this article, we have discussed diplomatic agents, as well as the privileges and immunities they enjoy; which have been divided to privileges and immunities related to the person of the agent, such as personal inviolability and inviolability of their place of residence and correspondences; and others that are related to the state, such as juridical immunity. What distinguish between the two types is that the first is related to the person of the representative and shall not be waived, while the second is related to the state, hence, may be waived under specific conditions as we explained. We have also explained that such immunity shall not mean impunity of the representative when already committed a punishable action; but he shall still be deemed guilty according to the laws of his state; and at last, we explained the expiry of such immunity by the end of the agent’s mission or by his death.

Prepared by: Attorney Sami Alawad

[1] Dr. Zayed Obeid-Allah Mesbah – Diplomacy – National Library of Libya – Benghazi, Libya – 1^st Edition 1999, Page No.93.

[2]   Dr. Ali Sadek Abou-Heif – General International Law – Monchaat Al Maaref – Alexandria – 1993, Page No.493.

[3] Rehab Shadba – Immunity of Diplomatic Agents – published in Journal of Human Rights – Faculty of Law and Political Science – Batna – 1^st Edition, Page No. 10