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terms of the waiver; or (A) is of a military character, or
(2) the property is, or is intended to be, used in connection with a (B) is under the control of a military authority or defense agen-
military activity and cy."
Section 11. IMMUNITIES OF STATE REPRESENTATIVES
5-7. Diplomatic Representatives and Theories of Dip- 5-8. The Vienna Convention on Diplomatic Relations.
lomatic Immunity. a. In a letter of March 16, 1906, to a. The Vienna Convention on Diplomatic Relations 24
the Secretary of Commerce and Labor, Secretary of State was signed on April 18, 1964; as of January 1, 1975, 1 14
Elihu Root said: states were parties to the convention. The convention en-
There are many and various reasons why diplomatic agents, whether tered into force for the United States on December 13,
accredited or not to the United States, should be exempt from the 1972. The long delay between the signature of the con-
operation of the municipal law at [sic] this country. The fmt and funda- vention and its ratiflation bv the United States was caused
mental reason is the fact that diplomatic agents are universally exempt by efforts of the ~epartrnent of State to obtain, before
by well recognized usage incorporated into the Cornman law of nations, ratiliation, the enactment of new legislation to resolve in-
and this nation, bound as it is to observe Intemational Law in its munici-
pal as well as its foreign policy, cannot, if it would, vary a law common to consistencies between the present legislation and the con-
all.... vention. As of January 1, 1977, the proposed legislation
The reason of the immunity of diplomatic agents is clear, namely: that had not been enacted with the exception of measures
Governments may not be hampered in their foreign relations by the ar- supra codifjing the restrictive approach to foreign state
rest or forcible prevention of the exercise of a.duty in the person of a immunity.
governmental agent or representative. If such agent be offensive and his
conduct is unacceptable to the accredited nation it is proper to request 6. Prior to the drafting of the convention, the practice
his recall; if the request be not honored he may be in extreme cases of states in the matter of diplomatic immunity was not
escorted to the boundary and thus removed from the country. And uniform. There was a great degree of uniformity in some
nghtly, because self-preservation is a matter peculiarly within the pro- areas and in respect to those the convention sets up a
vince of the injured state, without which its existence is insecure. Of this uniform standard for states to follow. In some instances
fact it must be the sole judge: it cannot delegate this discretion or right to
any nation however friendly or competent. It likewise follows from the the convention introduces new rules. Some of the more
necessity of the case, that the diplomatic agent must have full access to important provisions follow: 2s
the accrediting state, else he cannot enter upon the performance of his VIENNA CONVENTlON ON DIPLOMATIC RELATIONS
smc duty, and it is equally clear that he must be permitted to return
to the home country in the fuIfient of offcial duty. As to the means Article 22
best fitted to fuUii these duties the agent must necessarily judge: and of 1. The premises of the mission shall be inviolable. The agents of the
the time required in entering and departing, as well as in the delay receiving State may not enter them, except with the consent of the head
necessary to wind up the duties of office after recall, he must likewise of the mission.
2. The receiving State is under a special duty to take all appropriate
judge. 22
steps to protect the premises of the mission against any intrusion or
b. In its 1958 articles on diplomatic privileges and im- damage and to prevent any disturbance of the peace of the mission or
munities, which served as the basis for the Vienna Con- impairment of its dignity.
3. The premises of the mission, their furnishings and other property
vention on Diplomatic Relations, the International Law thereon and the means of transport of the mission shall be immune
Commission noted that diplomatic privileges and irn- from search, requisition, attachment or execution.
munities had in the past been jusaed on the basis of the Article 24
The archives and documents of the mission shall be inviolable at any
"extemtoriality" theory or on the basis of the "repre- time and wherever they may be.
sentative character" theory. According to the former, the Article 25
premises of the mission represented a sort of extension of The receiving State shall accord full facilities for the performance of
the territory of the sending state; according to the latter, the functionsof the mission.
Article 26
privileges and immunities were based on the idea that the Subject to its laws and regulations concerning zones entry into which
diplomatic mission personified the sending state. The is prohibited or regulated for reasons of national security, the receiving
State shall ensure to all members of the mission freedom of movement
commission then observed that a -third theory" ap-
peared to be gaining ground in modem times; i.e., the 24. 22 U.S.T. 3227; T.I.A.S. 7502; 500 U.N.T.S. 95.
"functional necessity" theory, "which justifies privileges 25. Among the substantive articles omitted, supra, are those deal-
and immunities as b*ng necessary the mission ing with definitions (Art. 1); the functions of a diplomatic mission (art.
3); the establishment of diplomatic missions (arts. 2, 4-8, 10-13); the
to perform its functions." The stated that it declaration by a receiving state that a representative is persona non grata
had been guided bv this third theow ". . . in SO~V~IU! - prob- (~rt. 9); protocol matters (arts. 14-18); the interim administration of
-
"
lems on which practice gave no clear pointers, while also missions temporarily without a "head of mission" (art. 19); the obliga-
tion of the receiving state to assist in accommodating the mission and its
bearingin the representative character the head staR (art. 21): and the exemotion from taxes on the remises of the
the mission and of the mission itself." 23 mission (art.'23). For a full akount and analysis of the proceedings in
the Conference that led to the adoption of the Convention, see Kerley,
22. 4 G. Hackworth, Digest of Intermtioml bw 513-14 (1942). Some Aspects of the Vienna Corlference on Diplomatic Intercourse and
23. 2 Y. B. I.L.C. 95 (1958). Immunities, 56 Am. J. Int'l L. 5 8 (1962).