Diplomatic Privileges and Immunities

An internal US inspection report released this summer criticized the US ambassador to the UAE, HE Michael Corbin, for misusing parts of his diplomatic privileges. Not only in the UAE the granting of diplomatic privileges and immunities is a controversially debated topic. In the public eye diplomats seem to enjoy traditional prerogatives enabling them to float above the law. In the light of abuses of diplomatic immunities such as parking, speeding or even more serious crimes such as drug and people trafficking the upcoming Monday night speaker lecture will raise the question why states grant diplomatic immunities.

In order to create a basic understanding the lecture will analyze the historical evolution of legal doctrines underlying the concession of diplomatic privileges and immunities. Diplomatic law governing the inviolability of permanent mission premises and immunities of their staff are regulated in the 1961 Vienna Convention on Diplomatic Relations (VCDR). We will look at the codification history of the VCDR and discuss cases of abuses of diplomatic immunities in order to get a feel for the link between legal theory and diplomatic practice to deepen our understanding of the benefits of such long-standing diplomatic practice.

This paper examines the recent practice concerning the relationship
between the Order of Malta and the Holy See with the aim to better define the relationship between the Order of Malta and Italy. It is widely known that in Italy both the judiciary and the executive power qualify the Order as a subject of international law. In particular, to provide the Order with immunities and privileges, the judiciary has often relied on the alleged premise of its international legal personality. The same presupposition has been applied by the Italian Government to justify the stipulation of some “agreements” with the Order. The analysis of the references to the Holy See in the new Constitutional Charter of the Order and of the recent interventions of the Holy See in the internal affairs of the Order shows that the Order legally depends on the Holy See and that the aforementioned Italian practice does not rely on legal bases but on a sort of tradition.

The thesis studies the responsibility of international organizations for wrongful acts under international law, specifically the responsibility of the United Nations (UN). The thesis studies takes the draft articles on the responsibility of international organizations of 2011 (DARIO), that are intended to provide a basis for the responsibility of international organizations. However, the DARIO are considered progressive and their authority depends on how they will be received. The thesis studies the provisions that are considered most controversial; the provisions related to rules of the organization, lex specialis and attribution of conduct.
The principles and provisions adopted in the DARIO, relating to the legal personality and the rules of international organizations are challenged in this thesis. International organizations, especially the UN performs functions, that go beyond the scope of traditional international organizations and they perform more and more state-like functions. The rules of the organization are on the one hand equated with internal laws of states, with limited effects on responsibility; on the other hand, they are part of international law and may be considered lex specialis to the general provisions of the DARIO. Recourse to lex specialis could make the DARIO redundant.
Article 7 of DARIO attempts to resolve the ambiguity of attribution between two entities in cooperation, e.g. UN peacekeeping operations. The UN does not accept responsibility for wrongful acts that have happened in UN peacekeeping operations. The UN invokes agreements it has made with national contingents, the rules of the organization and claims it does not have effective or overall control over the conduct. The study looks at the DARIO and recent jurisprudence and academic writings in the light of the UN practice.
In the recent decade the role of victims and their right to effective legal remedies and reparation have started to gain more interest in the field of human rights. Human rights treaties formally bind states, but this study suggests that due to the increasing amount of governmental functions, that many international organizations exercise, they are also obliged to follow human rights norms. Moreover, the UN, as a patron of the universal human rights treaty system, is morally obligated to uphold human rights in its mission.
The last decades have indicated a willingness of the international community to end impunity and even heads of states are no longer considered immune from the jurisdictions of international tribunals for international crimes. The study looks at the immunities of international organizations, and challenges the functional necessity principle. The study looks at the rise of independent international tribunals, which could provide an independent and impartial review of international organizations, in order to carry out their responsibility of human rights obligations.

The course on Diplomatic and Consular Law (DCL) focuses, in a detailed fashion, on the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations and other treaty-based and customary sources of international law dealing with the regulation of official bilateral or multilateral relations between States. The course also explains key categories and concepts of DCL such as the notion of diplomatic protection. Through lectures, seminars and practical exercises, the course covers the organization and functioning of permanent and temporary diplomatic missions, the legal status of diplomatic, administrative and technical personnel, and service staff under international law, and the Republic of Kazakhstan’s legislation on diplomatic and consular service.

The privileges and immunities provided to a NATO Headquarter as an International Organization by the Nation hosting it to its territory ensure the Organizations' operational independency. Nations provide extensive fiscal and customs privileges to NATO at the Organization or at HQ level and its personnel. The project enlightens the reader on the above issues.  The present project has been executed within the frame of the author's internship program in the Legal Advisor's Office in NATO's Rapid Deployable Corps Headquarters GR from September 2018 to April 2019. The intern acquired access to unclassified information and ministerial decisions while processing relative administrative cases within HQ NRDC-GR. The project was constantly under the guidance of the supervisor Legal Officer to whom it owes its clarity and consistency.The project contributed to the Family Support Office of the HQ in the editing a Guide on the privileges and immunities that NATO personnel and their dependents are entitled to. The Guide was distributed on a permanent basis to newly posted personnel.

Proceedings of a judicial, quasi-judicial, public inquiry, fact-finding or similar nature, in which confidential communications of the International Committee of the Red Cross (ICRC) risk being disclosed, raise important challenges for the ICRC's capacity to carry out its internationally recognized mandate. In order to carry out that mandate and fully assume its operational role in the protection and assistance of victims of armed conflict and other situations of violence, confidentiality is an essential tool that allows the ICRC to build the necessary trust to secure access, open channels of communication, influence change and ensure the security of its staff. The purpose of this Memorandum is to, first, provide the rationale for and broad practical context of confidentiality as the ICRC's working method; second, outline the legal sources on which the ICRC bases its requests that national and other authorities protect the confidentiality of its communications from public disclosure and from being used in legal proceedings; and third, set out the scope of application of the ICRC's evidentiary privilege regarding confidential information.

Presentation given at the 50 Years Vienna Convention on Diplomatic Relations conference at Edinburgh University Law School.

The International Law Commission (ILC) had an outstanding role in the preparation of what later became the 1961 Vienna Convention on Diplomatic Relations (VCDR). The presentation focused on the improved codification process, the composition of the ILC and its power of agenda setting, and the type and form of codification chosen.

The International Committee of the Red Cross (ICRC) enjoys a specific legal status and specific privileges and immunities under both international and domestic law. They enable the ICRC to effectively carry out its mandate, and to do so in full conformity with its Fundamental Principles and standard working modalities. This article clarifies the ICRC's particular legal status and explains the rationale, scope and legal sources of its privileges and immunities.

La Corte penale internazionale e la repressione delle gravi violazioni del diritto umanitario (Book printed in Italian)
The book introduces and analyses the main topics related to the organization and functioning of the International Criminal Court (ICC) and the exercise of jurisdiction over the “most serious crimes of concern to the International Community as a whole” as stated in the Preamble of the Rome Statute that establishes this new judicial organization. The idea of writing this book arose from the many questions on International Criminal Justice posed to the author by her University students and from her personal experience in the drafting of the Statute as legal advisor to the UN Preparatory Commission for the Establishment of an International Criminal Court. The study does not pretend to be an exhaustive treatise, but rather to depict the judicial mechanism in a way understandable to beginners, so to highlight the major controversial points concerning the Statute rules and their application, without delving into too many subtleties and technical procedural details. For this reason citations are limited to the essential giving priority, among the vast existing bibliography, to comments written in Italian. Particular attention is paid to the implementation of the Statute into the Italian domestic legal order.
The first chapter of the book broaches the question of the creation of an international penal tribunal by treaty law, then examines the pre-condition for the exercise of the Court’s jurisdiction, the complementarity issue, the so called trigger mechanism and gives a survey on the proceedings. Chapter II describes the categories of crimes within the Court’s jurisdiction, including the crime of aggression and the concept of individual responsibility in International Law. The third chapter is dedicated to issues of International cooperation, and focuses on the arrest and surrender of the accused to the Court. Chapter IV tackles the matter of personal and diplomatic immunities, with particular regard to the position of States not parties to the Statute. The next one deals with the agreement on privileges and immunities of the Courts and its officers. The final chapter is dedicated to the applicable penalties with a brief  discussion on the exclusion of the death penalty.
The book also includes an appendix that reproduces the text of the Statute translated into Italian by the author in an effort to render the legal terms corresponding to those currently used in Italian Criminal Law and Procedure.