Not only foreign companies and foreign entrepreneurs, but also 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 last in a series of three, will discuss the consequences of the diplomatic status and the situations in which Dutch law will apply.
Diplomatic immunity is a form of legal immunity to ensure that diplomats are given safe passage and are considered exempt from lawsuit or prosecution under the laws of the receiving state. The rules concerning diplomatic relations are laid down in the Vienna Convention on Diplomatic Relations (VCDR 1961), which also applies in the Netherlands.
The VCDR is an international treaty on diplomatic relations and the privileges and immunities of a diplomatic mission. According to the Convention, diplomatic relations between states and permanent diplomatic missions are determined by mutual consent. The functions of a diplomatic mission include:
- representing the sending state in the receiving state
- protecting the interests of the sending state and of its nationals in the receiving state
- promoting friendly relations between the sending state and the receiving state
- developing economic, cultural and scientific relations.
In general, diplomatic missions and their members and families must respect the principles of Dutch law because their immunity does not extend to legislation itself. Diplomatic immunity only restricts the Dutch authorities in exercising their power with regard to the diplomats’ compliance with Dutch legislation.
In addition, according to the VCDR, the territory of the diplomatic mission is inviolable and immune from investigation or taxes (extraterritoriality). Representatives of the receiving state can only enter the diplomatic mission’s territory with consent from the head of the diplomatic mission.
The diplomat is also inviolable. The private residence of a diplomat receives the same protection as the premises of the diplomatic mission. In addition, a diplomat is immune from the criminal, civil and administrative jurisdiction (not relating to private immovable property or succession) of the receiving state. Immunity does not apply to the diplomat’s professional and commercial activities outside his official functions. The sending state can waive the diplomat’s immunity.
Finally, even members of the administrative and technical staff and family members of the diplomatic mission enjoy some immunity, if they are not nationals of or residing permanently in the receiving state.
The VCDR is not applicable to foreign Consuls and members of their staff. The consular mission falls within the scope of the Vienna Convention on Consular Relations (VCCR 1963), which confirms that Consuls and their staff enjoy immunity with regard to their official acts, but not with regard to their private acts.
Although diplomats 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 general, employees of diplomatic missions enjoy immunity with regard to their official acts, but not with regard to their personal conduct.
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:
Head of Embassy Desk