Embassies and Consulates have to deal with the Dutch when they represent their country in the Netherlands. Embassies and Consulates, however, enjoy a special status because they are considered to rule under their own flag and not under that of the country of residency. Nevertheless, on occasion they do have to deal with Dutch law, for example with regard to their locally hired personnel working in the Netherlands, when buying or selling property (residence, Embassy) or concluding any other commercial contract.
This article, the first in a series of three, will discuss the limits of diplomatic immunity and how said limits are defined.
Scope of immunity
The independent character of a sovereign state conflicts with being subjected to the laws and jurisdiction of another state. For this reason, but also in order to enable states to carry out their public functions effectively, states have (state) immunity. State immunity refers to the right or privilege of being exempted from the existing power or jurisdiction of another state. National courts do not have jurisdiction over claims against a foreign state, its diplomats and/or diplomatic services.
There is no uniform law on state immunity, but there are several conventions, such as the European Convention on State Immunity (ECSI 1972).
Immunity of jurisdiction only applies to activities of governmental or public nature, the so-called acta iure imperii. It is not applicable to activities of a private or commercial nature, the so-called acta iure gestionis. This distinction is widely accepted.
When immunity cannot be invoked, this does not necessarily mean that a judgement can be executed or property can be seized in full. According to the ECSI for example, a convicted member state will have to comply with the judgement by choice. However, it is not possible to seize property meant for public services. It is not permitted either to attach any goods or financial assets of the foreign state that are intended for public services. It is not clear however, whether bank accounts of diplomatic missions and consular posts can be attached. From numerous court decisions it can be concluded that, in case the bank account only serves the purpose of allowing the diplomatic mission or consular post to function, it cannot be attached.
Immunity from jurisdiction is not absolute. Therefore, the question of immunity only arises when the foreign state refuses to submit to the jurisdiction of the local court. A state is considered to waive its immunity when it appears in court, when it acts as plaintiff or starts a counterclaim, unless, of course, it appears in court to invoke immunity. Foreign states can waive their immunity voluntarily (in advance), both explicitly and silently. When immunity is waived or not applicable, the substantial rules of law applicable by the local or territorial court are fully effective.
Although Embassies and Consulates enjoy immunity in the Netherlands, there are several situations in which they have to deal with Dutch law. The scope of their immunity depends on the diplomatic nature of their work. In the following article, we will discuss four areas where Embassies and Consulates must take into account Dutch law.
This newsletter provides a brief insight into diplomatic immunity and the potential consequences for your Embassy. But the Embassy desk of our firm also focuses on:
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