ACADEMY OF MANAGEMENT UNDER THE PRESIDENT OF THE REPUBLIC OF BELARUS

Institute of Public Administration

Department of "International and Comparative Law"

COURSE WORK

on the topic "Privileges and immunities of diplomatic missions and their personnel"

Minsk 2009

Introduction

Chapter 1. Theoretical substantiation of diplomatic privileges and immunities

1.1 The concept of diplomatic privileges and immunities

1.2 Theory of extraterritoriality

1.3 Ambassador's representative character theory

1.4 Theory of diplomatic functions

Chapter 2

2.1 Privileges and immunities of diplomatic missions

2.2 Personal privileges and immunities

Chapter 3. Practice of application of diplomatic privileges and immunities in the Republic of Belarus

3.1 Privileges and immunities of diplomatic missions

3.2 Liability for violations of diplomatic privileges and immunities

Conclusion

Introduction

The privileged position of diplomats in society is traditional, and the reason is not only the continued respect for their profession, but also the fact that representatives of the state will be able to perform their diplomatic functions satisfactorily only if they are completely free from legal, physical or moral pressure from the state in which they work. In most peace-loving states of law, privileges and immunities granted to diplomats may seem meaningless and redundant to the extent that they can cause resentment in the inhabitants of the host country, but in exceptional circumstances and in individual countries, only the official recognition of mutually applicable privileges and immunities makes it possible to maintain diplomatic relations.

Privileges and immunities apply both to the diplomatic mission, its functions, and to an individual person.

The privileges and immunities accorded to diplomatic missions also apply to the UN and its functions under the 1964 UN Convention on the Privileges and Immunities, although the application of the Convention varies from state to state.

Chapter 1. Theoretical substantiation of diplomatic privileges and immunities

1.1 The concept of diplomatic privileges and immunities

The term "immunity" can be understood as a privileged position or benefits granted to a diplomat or consul.

Immunity is a set of privileges and immunities of a subject of international law engaged in foreign relations, and as a result of this, a set of special personal rights and benefits that facilitate the work of foreign representatives.

And also, immunity is an exemption from the administrative, criminal and civil jurisdictions of the host state.

This includes: the right to inviolability of office premises, the right to unhindered communication with their government, missions and consulates, personal inviolability of representatives of states, withdrawal from jurisdiction, inviolability of the home.

This also includes "privileges of courtesy", that is, the right to be received with certain honors, to use the flag on their buildings and carriages, to display the coat of arms or shield with the emblem of their country on the doors of the building where the representative performs his official functions.

The term "diplomatic immunity" should be understood as a set of privileges and immunities in the strict sense of these words.

Diplomatic immunity extends primarily to the totality of privileges and immunities of a subject of international law, heads of state, heads and members of governments, members of parliaments, diplomatic agents of states or nations in the period of formation in the host country, heads and members of permanent missions to international organizations, international officials, heads and members of delegations at the meeting and conference.

A distinction should be made between privileges and immunities.

Privileges should be understood as the special legal advantages of certain foreigners as representatives of states. The most significant of them is - the right to enhanced protection against encroachment and insults; the right to use signs and emblems in certain cases; the right to special means of communication with foreign countries; the right to honorable meetings.

Immunities mean the principle of exempting heads of state, heads and members of governments, members of parliament and representatives of foreign states, property of foreign states and persons, as well as foreign military forces and state ships abroad from coercive influence by the court, the financial apparatus and the security council of the country, where such foreign persons and property are located, exemptions in particular and from lawsuits, arrests, searches, embargoes and audits.

D.B. Levin wrote that "diplomatic immunity is one of the most important, both theoretically and practically, problems of international law concerning the regulation of the activities of diplomacy", K.K. Sandrovsky argues that "diplomatic immunity is the main element, the central institution of all diplomatic law."

The protection of both diplomatic immunity and diplomatic privileges is a norm of international law, provided both by voluntary observance and by coercion by states in order to maintain and develop peaceful relations.

One of the most urgent and complex issues related to the immunities and privileges of diplomatic missions and their personnel is the theoretical justification for the need to provide them.

At the moment, there is a practical need for a more complete codification of the norms of diplomatic law, there is a need for a theory that reveals the legal nature of immunities and privileges. This theory also has practical value for the interpretation of existing immunities and privileges, when allowing controversial situations, if there is no contractual settlement and it is necessary to establish the existence and specific scope of this or that immunity. Theoretical justification to a large extent affects the status of diplomatic missions in a particular country, since it significantly affects the state-legal regulation of this status, the implementation of immunities and privileges.

Many writers of antiquity and the Middle Ages justified the inviolability of ambassadors and respectful treatment of them by their importance for maintaining peace and friendly relations between sovereigns and peoples. A feature of the diplomatic activity of the era of feudalism is the so-called privilege of the quarter: city quarters were withdrawn from the jurisdiction of the host state in favor of foreign ambassadors. True, this was mainly in those states where local power was not strong enough, and there were frequent unrest (Rome, Madrid and others).

However, in the first half of the 17th century, the "embassy quarter privilege" was abolished throughout Western Europe, except for Madrid (where it was abolished in 1684) and Rome (1693, when Louis XIV formally renounced this privilege).

So, by the beginning of the 18th century, it was recognized in the literature that the right of asylum and representation in the premises should not be granted. By the 70s of the 19th century, a customary norm had been formulated in Europe prohibiting the granting of asylum in the premises of a diplomatic mission. For some time this was preserved only in Spain and for a very long time in the countries of the East, for example in China.

In modern times, when permanent embassies appeared, the need for legal justification arose with greater force. Permanent ambassadors demanded not only personal immunity, but also a number of other privileges: the inviolability of their premises, the lack of jurisdiction of local courts, etc.

From the end of the 16th and throughout the 17th and 18th centuries, three main theories of diplomatic immunity developed, which were often intertwined with each other, this theory:

Extraterritoriality;

Ambassador's representative character theory;

Theory of diplomatic functions.

All three theories were conditioned by new historical features of state and international life, which, on the one hand, gave rise to new international legal norms, and, on the other hand, redefined the general nature of theoretical views on the state, law, and international relations.

1.2 Theory of extraterritoriality

The first of these theories should be considered the theory of extraterritoriality. This theory arose on the basis of the growth of absolutism, which united the entire territory of the state under the auspices of a single royal power, and the strengthening of the beginning of the sovereignty of the monarch in domestic and international relations. Inside the state, from the beginning of sovereignty flowed the unlimited dominance of the territorial principle - the exclusive power of the monarch, his courts and administration over all people living within the state territory. One of the consequences of the beginning of sovereignty was the claim of absolute monarchs to the honorable and privileged position of their ambassadors as representatives of the person of the sovereign, to their disobedience to any authority other than the authority of the sender. Diplomatic practice, which followed the path of expanding embassy privileges, needed to give them a legal justification, but this required reconciliation of territorial and extraterritorial rights of sovereignty.

Subsequently, the concept of extraterritoriality turned from an auxiliary legal formula into an independent legal principle.

The expansion of the original meaning of the theory of extraterritoriality was associated with the same circumstance that contributed to its emergence and rapid recognition - with a tendency to firmly consolidate broad diplomatic privileges. Since the fiction of being in one's own country referred not only to the person of the ambassador but also to the premises he occupied, this theory, in its absolute form, served as a justification for both the right of asylum in diplomatic premises and the right of the ambassador to have jurisdiction over his staff. Based on the theory of extraterritoriality, diplomatic representatives have repeatedly demanded the removal from local jurisdiction of any acts committed on the premises of the embassy, ​​even if they were committed by ordinary persons.

However, from the second half of XIX century, when the trend towards the growth of diplomatic privileges gave way to the opposite trend - towards their reduction, when the legislative regulation of the personal and property rights of citizens expanded, and a positive direction prevailed in the science of international law, the theory of extraterritoriality began to lose its former authority and more and more revealed its inconsistency in practice .

1.3 Ambassador's representative character theory

Along with the theory of extraterritoriality, the theory of the representative nature of the ambassador enjoyed unquestioned authority and was widely used in practice. Genetically, this theory precedes the theory of extraterritoriality. Even in the period of imperial Rome and in the Middle Ages, the honors accorded to extraordinary ambassadors were made dependent on the power and title of their sovereigns. It was believed that in the person of the ambassadors these honors were given to those who sent them.

During the period of absolutism, the idea of ​​an international hierarchy of sovereigns became a thing of the past, and it was replaced by the dominant principle of a new international law - the principle of sovereignty, by virtue of which a sovereign sovereign had no power standing over him, and, therefore, was not subject to authority and jurisdiction of any kind. was a foreign country.

But at the same time, the idea that the ambassador carries the honor and prestige of his sovereign has become even stronger; it was believed that the ambassador is the alter ego (second self) of the head of state who sent him. Any insult to the ambassador was considered as a personal insult to the sovereign.

From the combination of these two ideas, the so-called "representative theory" of diplomatic immunity was formed, more precisely, the theory of the representative nature of the ambassador, which, in the conditions of the existence of permanent embassies, had to justify not only the ceremonial privileges of ambassadors, but also their immunity from the actions of local authorities and jurisdiction .

The theory of representative character of an ambassador in its purest form was quite sufficient to justify the ceremonial privileges of an ambassador, but to justify immunity from jurisdiction, it required additional legal reasoning that would turn a theoretical principle into a tool suitable for practical application. Therefore, this theory has developed in the legal literature most often in combination with the extraterritorial formula of an embassy or with arguments about the need for diplomatic privileges for ambassadors to perform their functions.

In the same combination, the theory of the representative nature of the ambassador was used in diplomatic and judicial practice.

Modern supporters of the theory of representation see diplomatic immunity not as a consequence of the fact that the ambassador is the alter ego of a sovereign monarch, but as a right arising from the sovereignty of the state.

If we follow the theory of representation, then we will see contradictions in the current practice, because it justifies the immunities and privileges of only the head of a diplomatic mission. All the rest, especially non-diplomatic personnel, as well as family members of mission employees, on the basis of this theory, should not enjoy immunities. In addition, according to the theory, immunities extend only to the official actions of a diplomatic representative, while immunities in relation to his private actions are not consistent with this theory, and in fact, in practice, the most controversial issues are related to the extension of immunity specifically to unofficial actions. Nor does it explain the immunities of the diplomatic courier, nor the existing scope of immunities for diplomatic vehicles.

1.4 Theory of diplomatic functions

The theory of diplomatic functions reaches full bloom in the second half of the 19th century, while the science of international law, which has taken the path of systematizing positive legal material, seeks to provide a realistic justification for international legal institutions, in particular diplomatic immunity.

On the other hand, the flourishing of the theory of diplomatic functions was facilitated by the reaction that by the middle of the 19th century began to manifest itself against the broad diplomatic privileges established during the period of absolutism and now seeming not only unjustified, in view of the legislative regulation of personal and property rights, both local citizens and and foreigners.

The Havana Convention on Diplomatic Officials of 1928 states that diplomatic officials "may not claim immunities that are not essential to the performance of their official functions". , and also contains a section on the immunities of staff, but not of the diplomatic mission itself, and the immunities of the mission are expressed through staff immunities. With the adoption of the Convention on Diplomatic Relations, the immunities and privileges of a diplomatic mission were formalized as an independent institution, but the existing doctrinal justification for diplomatic immunities and privileges is still focused only on the immunities and privileges of the staff of the mission.

Prior to the conclusion of the Convention, there was no currently accepted division of diplomatic immunities and privileges into two groups: the immunities and privileges of the diplomatic mission itself and the personal immunities and privileges of the staff of the mission. In the works of leading lawyers, the immunities and privileges of a diplomatic mission were derived from the immunities and privileges of the head of the mission and were considered as a continuation of these immunities. The inviolability of the premises of the diplomatic mission was considered a derivative of the personal immunity of the head of the mission, the immunities of the staff, but not of the diplomatic mission itself, and the immunities of the mission are expressed through the immunities of the staff. With the adoption of the Convention on Diplomatic Relations, the immunities and privileges of a diplomatic mission were formalized as an independent institution, but the existing doctrinal justification for diplomatic immunities and privileges is still focused only on the immunities and privileges of the staff of the mission. One of the universally recognized principles of international law is the principle of the sovereign equality of states.

This principle is based on the rule of international law - the immunity of the state from foreign jurisdiction. State immunity extends both to the State itself and to its property, property, government bodies.

A diplomatic mission is a public body of the state and, by virtue of the immunity of the state, is exempt from the jurisdiction of the receiving state. It is the immunity of the accrediting state that can explain the need to provide all those immunities and privileges that a diplomatic mission is endowed with. This single justification assumes an equal scope of immunities for all foreign bodies of external relations, which is in line with current practice. This theoretical justification also explains the need to grant immunities and privileges to employees of a diplomatic mission, who should be considered as employees public institution and therefore be exempt from the jurisdiction of a foreign state, i.e. immunities are granted not to the employees themselves, but to the sending State in respect of its employees abroad. This theory assumes the same status for all employees of the diplomatic mission, although at the moment different categories of personnel enjoy far from the same amount of immunities and privileges.

Chapter 2

Diplomatic privileges and immunities are the rights and benefits granted to a diplomatic mission as such, as well as to its head and diplomatic staff. With certain restrictions, they can be extended to administrative and technical and maintenance personnel.

In our time, the privileges and immunities enjoyed by diplomatic missions, their heads and employees, are regulated by both bilateral agreements and multilateral conventions. Among them is the Vienna Convention on Diplomatic Relations of 1961, which establishes two categories of diplomatic privileges and immunities: those relating to diplomatic representation as such and personal, i.e. relating to heads and staff of missions.

2.1 Privileges and immunities of diplomatic missions

Art. 22 of the Vienna Convention on Diplomatic Relations of 1961. establishes that the premises of the mission are inviolable. The authorities of the receiving State may not enter these premises except with the consent of the head of mission. At the same time, the premises of the representative office are understood to mean buildings or part of buildings used for the purposes of the representative office, including the residence of the head of the representative office and the land plot serving them.

There have been attempts in the past by some States to challenge this provision, in particular in the case of fires. But in the end they were rejected. Moreover, under the Convention, the receiving State has a special obligation to take all appropriate measures to protect the premises of the mission from intrusion or damage and to prevent any disturbance of the peace of the mission. Their furnishings and other property contained therein, as well as the means of transportation of the mission, shall be immune from search, requisition, seizure and execution. The official correspondence of the mission also enjoys immunity, and diplomatic mail is not subject to either opening or detention (Article 27, paragraphs 2, 3).

As an example of a violation of diplomatic privileges and immunities, one can cite the case of the "US Embassy in Tehran." On November 4, 1979, a group of students seized the building of the US Embassy in Tehran and held the employees of the diplomatic mission as hostages. The United States appealed to the International Court of Justice.

On December 15, 1979, the court issued a ruling that referred to the following provisional measures, which confirms the court's confirmation of the obligation of diplomatic immunity.

First, the Iranian government must immediately ensure that the premises of the US Embassy, ​​Chancellery and Consulate are returned to the possession and exclusive control, inviolability of these premises and effective protection in accordance with applicable international treaties between the two states and general international law.

Secondly, the Iranian government must ensure the immediate release of all US citizens who are being held hostage in the US Embassy or Foreign Ministry in Tehran or elsewhere, provide all such persons with full protection in accordance with existing treaties between the two countries and general international law. .

Third, from now on, Iran must provide all U.S. diplomatic and consular personnel with full protection and the privileges and immunities to which such personnel are entitled under existing treaties between the two states and under general international law, including immunity from any form of criminal jurisdiction. , also the opportunity to leave the territory of Iran.

The receiving State must either assist the sending State in acquiring on its territory, in accordance with its laws, the premises necessary for its representation, or assist the sending State in obtaining premises in some other way.

It must also, if necessary, assist missions in obtaining suitable premises for their staff (art. 21).

The host state must provide every opportunity to perform the functions of representation (Article 25).

To the extent that this is not contrary to the laws and regulations on areas where entry is prohibited or regulated for reasons of national security, the receiving State must ensure that all members of the mission have freedom of movement within its territory (art. 26).

The convention confirmed the previously existing order of communication between the mission and its government with the help of diplomatic couriers and coded or ciphered dispatches.

Diplomatic mail is not subject to opening or detention.

All places constituting the diplomatic bag must have visible external signs indicating their nature, and they may contain only diplomatic documents and items intended for official use (art. 27).

Archives and documents of the mission are inviolable at any time and regardless of their location.

In the event of a severance of diplomatic relations between states, either a permanent or temporary recall of the mission, and even in the event of an armed conflict, the receiving state must respect and protect the premises of the mission, together with its property and archives.

Prior to the adoption of the Vienna Convention on Diplomatic Relations of 1961. cases of violation of diplomatic privileges and immunities were not uncommon, and especially in the event of a rupture of diplomatic relations or an armed conflict. So, for example, in his book "Pages of Diplomatic History", V.M. Berezhkov gives examples of gross violations of diplomatic privileges and immunities by the German authorities: “On June 22, the SS broke into the premises of the embassy. Soon a closed black van arrived, pushed the employees into it, and took them to the Gestapo. There they were thrown into solitary confinement. Several times a day called in for interrogation, beaten, trying to find out secret information, forced to sign some papers.

The sending State may entrust the custody of the premises of its mission, together with its property and archives, to a third State acceptable to the receiving State.

The accrediting state may entrust the protection of its interests and the interests of its citizens to a third state acceptable to the receiving state (art. 45).

Special Art. 20 of the convention establishes the right of the mission and its head to use the flag and emblem of the sending state on the premises of the mission, including the residence of its head, as well as on vehicles.

In accordance with the Rules for the application of the "Regulations on the State Flag of the Republic of Belarus" adopted in the Republic of Belarus.

The national flag of the Republic of Belarus is hoisted on the buildings of the diplomatic and consular missions of the Republic of Belarus on national holidays, mourning and other days, taking into account the local practice of the country where the corresponding diplomatic or consular mission of the Republic of Belarus is located, on other days by special order of the Ministry of Foreign Affairs of the Republic of Belarus and daily in those countries where it is accepted according to local custom.

The national flag of the Republic of Belarus is hoisted (installed) on Vehicle at diplomatic and consular missions of the Republic of Belarus, on ships and other means of transportation, where the President of the Republic of Belarus, the Chairman of the National Assembly of the Republic of Belarus, the Prime Minister of the Republic of Belarus or other persons representing the National Assembly of the Republic of Belarus or the Council of Ministers of the Republic are located as officials Belarus, the Minister of Foreign Affairs of the Republic of Belarus, the ambassador or head of the consular office of the Republic of Belarus with the consent of these persons.

The national flag of the Republic of Belarus is hoisted on the buildings of trade establishments of the Republic of Belarus located abroad on the days of national holidays of the republic.

The national flag of the Republic of Belarus is hoisted at other sites by order of the President of the Republic of Belarus, by decision of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, local Councils of Deputies, local executive and administrative bodies.

The national flag of the Republic of Belarus is raised at sunrise and lowered after sunset or at the end of festivities, celebrations, mourning ceremonies.

The Ministry of Foreign Affairs of the Republic of Belarus is obliged to ensure that the diplomatic and consular missions of the Republic of Belarus comply with the requirements of the Regulations on the State Flag of the Republic of Belarus and these Rules.

The premises of the mission may not be used for the forcible detention of any person. It should not be used for asylum either. Although the 1961 Vienna Convention does not expressly refer to non-asylum, it contains a provision that allows it to be interpreted in this way. Thus, Article 41 of the Convention (§ 3) states: "The premises of the mission shall not be used for purposes inconsistent with the functions of the mission under this Convention or other rules of general international law, or any special agreements in force between the sending State and the State stay".

The question of the existence and validity of the right to asylum from political persecution (generally not applicable to ordinary criminal cases) has long remained unresolved, being only a topic for fierce debate. In Europe, this practice has almost ceased. The current situation can only be resolved through negotiations, because the Vienna Convention, although it ensures the inviolability of the premises of the diplomatic mission (and thus those inside), does not contain provisions for the departure of any person who is not covered by the 1961 Convention, with a guarantee of inviolability and security.

An exception to this rule is made by Latin American countries, which have concluded special conventions among themselves, allowing the use of the premises of a diplomatic mission for the provision of political asylum.

This institution received contractual formalization in the Havana Convention on Asylum of February 20, 1928.

Tax privileges of diplomatic agents and consular employees are an integral part of the practice of interstate relations and are stipulated by the relevant norms of international law.

The privileges and immunities granted to diplomats, including tax ones, are necessary for them, first of all, for the successful performance of the diplomatic functions assigned to them.

The Convention confirms the established international practice of exempting diplomatic missions from all state, regional and municipal taxes, fees and duties, except for those that represent fees for specific types of services (the latter usually include fees for electricity, gas, water, telephone, etc. .) (Article 23 paragraph 1).

However, the fiscal exemptions referred to in paragraph 1, Article 23 of the Vienna Convention on Diplomatic Relations of 1961 do not apply to those taxes, fees and duties that, according to the laws of the receiving state, are levied on persons entering into contracts with the accrediting state or the head of the mission. .

Fees and fees collected by the mission in the performance of its official duties are exempt from all taxes, dues and duties (art. 28).

The representative office is also exempt from customs duties when transporting items intended for official use. The procedure for the transport of these items is usually established by the receiving State.

Occasionally, diplomatic immunities were abused.

As an example, we can cite the case described in the book by I.P. Blishchenko Diplomatic Law. It is the "case of Rosal".

The Ambassador of Guatemala to Belgium and the Netherlands, Moricio Rosal, was detained by the police in New York in October 1960. He was carrying 116 pounds of heroin worth $4 million. The police reported that this diplomat had a long history of clandestine drug dealing and that his recent frequent trips to the United States were not related to his diplomatic mission, but to speculation. The following day, the Guatemalan government hastened to announce its removal from the diplomatic post, waiving his immunity.

The receiving State must, even in the event of armed conflict, provide the assistance necessary for the speedy departure of persons enjoying privileges and immunities who are not nationals of the receiving State, and members of the families of such persons, whatever their nationality. It must, in particular, place at their disposal, if necessary, the means of transport required for themselves and their property (Article 44 of the 1961 Convention).

2.2 Personal privileges and immunities

With regard to personal privileges and immunities, the most important of them is personal integrity. This custom, consecrated by thousands of years of tradition, acquires a normative character from the point of view of international law. "The person of a diplomatic agent is inviolable. He shall not be subject to arrest or detention in any form whatsoever. The receiving State shall treat him with due respect and take all appropriate measures to prevent any attack on his person, freedom or dignity." (Article 29).

At the same time, the Vienna Convention on Diplomatic Relations of 1961 provides that the private residence of a diplomatic agent enjoys the same inviolability and protection as the premises of the mission.

The term "private residence of a diplomatic agent" even covers the temporary residence of a diplomatic agent (eg a hotel room).

His papers, correspondence, property shall likewise be inviolable, with the exception of claims relating to any professional or commercial activity carried out by a diplomatic agent in the receiving State outside his official functions.

The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State (Article 31).

Members of the family of a diplomatic agent living with him, if they are not citizens of the receiving state, enjoy the privileges and immunities specified in Articles 29-36 of the Vienna Convention on Diplomatic Relations of 1961.

Provisions of the Vienna Convention on Diplomatic Relations of 1961. consolidate the generally accepted practice in the field of privileges and immunities and accumulate a number of provisions contained in similar documents.

Chapter 3. Practice of application of diplomatic privileges and immunities in the Republic of Belarus

As of March 1, 2000, the Republic of Belarus was recognized by 144 states of the world, diplomatic relations were established with 133 of them. The Republic of Belarus has concluded 831 bilateral international agreements with foreign countries and international organizations. Belarus is a party to over 700 multilateral treaties.

One of the most important conditions for the effective operation of diplomatic missions on the territory of the Republic of Belarus is their withdrawal from the jurisdiction of the host state and the use of privileges and benefits that are not provided to ordinary foreigners, i.e. so-called privileges and immunities.

The main international legal document that determines the status and functions of diplomatic missions under the heads of state is the Vienna Convention on Diplomatic Relations of April 18, 1961, signed by the Belarusian Soviet Socialist Republic on April 18, 1961, ratified by the Supreme Council of the BSSR on April 6, 1964 and entered into force. force for the Republic on June 13, 1964. This Convention regulates the types of privileges and immunities granted to diplomatic missions (Articles 20,22,23,24,27,28 of the Convention) and their employees (Articles 29-39 of the Convention) on the territory of the host state, thus subdividing the privileges and immunities, privileges and immunities of diplomatic missions and privileges and immunities of diplomatic agents, which are usually called personal privileges and immunities.

At the moment, the Regulations on diplomatic and consular missions of foreign states on the territory of the Union of Soviet Socialist Republics, approved by the Decree of the Presidium of the Supreme Soviet of the USSR of May 23, 1966, are in force in the Republic of Belarus. At the same time, some norms of the Vienna Convention are reflected in the domestic legislation of Belarus. So, for example, the Law of the Republic of Belarus of December 19, 1991 "On value added tax" in part 40 of Article 5 contains a provision according to which "the cost of goods and services intended for the official activities of foreign diplomatic missions, as well as for the personal use of the diplomatic and administrative-technical personnel of these missions, including members of their families who live with them, while maintaining the principle of reciprocity by the states on whose territory the diplomatic missions of the Republic of Belarus are located. Such norms are also contained in the Law of the Republic of Belarus dated June 3, 1993 "On legal status foreign citizens and stateless persons in the Republic of Belarus" (Article 27), Code of Criminal Procedure of the Republic of Belarus (Article 21), Customs Code Republic of Belarus (Article 70) .

3.1 Privileges and immunities of diplomatic missions

The privileges and immunities of a diplomatic mission include: inviolability of the premises of the mission, fiscal immunity, inviolability of the archives and documents of the mission, the right to freely communicate with the mission for all official purposes, the inviolability of the official correspondence of the mission, customs immunity and the right to use the flag and emblem of the sending state on the premises of the mission and on the vehicles of the head of mission, which are called "protocol privileges" or "courtesy privileges".

In accordance with the provisions of Article 1 of the Convention, the employees of a diplomatic mission are the head of the mission, members of the diplomatic, administrative and technical and service personnel of the mission. Diplomatic agents are the head of the mission and members of the diplomatic staff of the mission, that is, those members of the staff who have a diplomatic rank.

The personal privileges and immunities of a diplomatic agent include:

1. Personal integrity;

Personal immunity is guaranteed to a diplomatic agent Art. 29 of the convention, which states that he is not subject to arrest or detention in any form.

The most common facts of non-observance of personal privileges and immunities of diplomatic agents accredited in the Republic of Belarus refer specifically to their personal integrity.

2. Complete immunity from the criminal jurisdiction of the host state;

Immunity from criminal jurisdiction is reflected in the Criminal Code of the Republic of Belarus, in Art. 4, paragraph 4, in the Code of Criminal Procedure of the Republic of Belarus in Art. 4 p. 2.

3. Immunity from administrative and civil jurisdiction with exceptions;

"The issue of liability for administrative offenses committed on the territory of the Republic of Belarus by foreign citizens who, in accordance with applicable laws and international treaties Republic of Belarus, enjoy immunity from the administrative jurisdiction of the Republic of Belarus, is resolved through diplomatic channels".

4. Fiscal immunity;

Tax privileges of diplomatic agents and consular employees are an integral part of the practice of interstate relations and are stipulated by the relevant norms of international law.

5. Customs immunity;

In the Customs Code of the Republic, art. 202, provisions are reflected that diplomatic missions of foreign states on the territory of the Republic of Belarus, subject to the established procedure for moving across the customs border of the Republic of Belarus, can import into the Republic of Belarus and export from the Republic of Belarus, goods intended for the official use of representative offices with exemption from customs duties, with the exception of payments for storage, customs clearance of goods outside designated places.

6. Exemption from personal duties;

The host state is obliged to release diplomatic agents from all labor and state duties, regardless of their nature, as well as from military duties, such as requisitions, indemnities and military billets (Article 35 of the Vienna Convention of 1961).

3.2 Liability for violations of diplomatic privileges and immunities

D.B. Levin divided all criminal laws on crimes against diplomatic representatives into three groups. Most of them (France, Belgium, Switzerland, the Netherlands, Turkey, Japan, Mexico, Argentina, Brazil) impose certain penalties for specific actions against diplomatic representatives or in general for violating their immunity.

Other laws (Denmark, Sweden, Norway, Chile, Paraguay) increase the usual penalties for crimes against the person if these crimes are directed against the person of diplomatic representatives.

The third group of laws (Cuba, Peru), establishing a certain punishment for crimes against diplomatic representatives, increase the punishment if these crimes have caused damage to the foreign policy interests of the state.

In some states (USA, Switzerland, Argentina, Chile), crimes against diplomatic representatives are considered in higher courts than similar crimes against individuals.

In particular, article 1 of the convention states:

a) the head of state, head of government or minister of foreign affairs who is in a foreign state, as well as family members accompanying him;

b) any representative or official of the state;

2. An "alleged offender" is a person in respect of whom there is evidence sufficient to establish prima facie that he has committed one or more of the offenses specified in Art. 2, or participated in their commission.

The second article 2 of the convention is devoted to the issue of determining the corpus delicti that entails special international legal protection, which says that:

1. Intentional commission:

a) murder, kidnapping or other attack against the person or freedom of an internationally protected person;

b) a violent attack on the official premises, living quarters or vehicle of an internationally protected person, which may endanger the person or freedom of the latter;

c) threats of any such attack;

d) attempts of any attack;

e) acting as an accomplice to any such act shall be considered by each participating State in accordance with its domestic law as a crime.

2. Each State Party shall provide for appropriate penalties for such crimes, taking into account their grave nature. The foregoing does not exempt from obligations under international law to take all appropriate measures to prevent other infringements on the person, freedom and dignity of an internationally protected person.

The Criminal Code of the Republic of Belarus contains Article 124: "Terrorist act against a representative of a foreign state", which provides for liability for violent acts against a representative of a foreign state, kidnapping or deprivation of liberty in order to provoke international complications or war, as well as the murder of a representative of a foreign state .

Conclusion

International legal acts and customs, the internal law of states quite fully regulate the issues of granting diplomatic privileges and immunities. At the same time, some aspects require both their settlement through the adoption of new international legal acts, and through the introduction of certain norms into domestic legislation.

I believe that it is necessary to adopt a comprehensive national legislative act that would regulate the status, as well as the scope of privileges and immunities of diplomatic missions and consular offices of foreign states on the territory of the Republic of Belarus.

The analysis of practice that I conducted revealed controversial points that are not currently regulated by law, namely:

Lawfulness of body searches of diplomatic agents and diplomatic bags technical means(for example, x-ray equipment);

The question of the interpretation of the provisions of the Vienna Convention on Diplomatic Relations of 1961 regarding Article 31, paragraph "c" and the provisions of Article 42, which are in conflict with each other regarding the prohibition of commercial activities by a diplomatic agent;

The advisability of adopting new provisions relating to the diplomatic bag in connection with the emergence of new technical communication capabilities, namely the Internet and e-mail.

As is known, any misinterpretation of the provisions of the 1961 Vienna Convention, and as a result of this, non-observance of diplomatic privileges and immunities, is considered as an act directed against the accrediting state, which leads to the conclusion that the adoption of such an act is timely and necessary for the successful conduct of communicative ties with other foreign countries.

You can also agree with the proposal of Kravchenko O.I, that it would be reasonable to follow the path of the Federal Republic of Germany, where on September 30, 1993, the General Ministerial Document was adopted, explaining in detail Germany's position on all the provisions of the convention, fully regulating the practical application of all those who have to do with it. the attitude of officials to these provisions, and to adopt a normative act that would regulate the application of the Vienna Convention on Diplomatic Relations of 1961 in the Republic of Belarus.

List of used literature:

Blishchenko I.P., "Diplomatic Law", , 17, p.76, 17, p.6,7

Borunkov A.F. "Diplomatic protocol in Russia", 17, p.83, 25, p.165

Levin D.B. "Diplomatic immunity", , 20, p.31

K.K. Sandrovsky, , 19, p.78

K.A. Bekyashev, Public International Law "(19, p. 76)

Havana Convention on Diplomatic Officers 1928 . , article 31, 17, p.80

Regulations on the diplomatic and consular missions of foreign states on the territory of the Union of Soviet Socialist Republics, approved by the Decree of the Presidium of the Supreme Soviet of the USSR of May 23, 1966.

Vienna Convention on Diplomatic Relations 1961 , article 20,22,23,24,27,28, article 29-39, article 41, 44

"Regulations on the State Flag of the Republic of Belarus".

Law of the Republic of Belarus of December 19, 1991 "On value added tax", article 27, paragraph 2,3

Law of the Republic of Belarus of June 3, 1993 "On the Legal Status of Foreign Citizens and Stateless Persons in the Republic of Belarus" (Article 27), Article 21,25,26

Code of Criminal Procedure of the Republic of Belarus (Article 21), Article 4, paragraph 2

Customs Code of the Republic of Belarus (Article 70), Article 202

Protocol and etiquette of diplomatic and business communication Kuzmin Eduard Leonidovich

§ 17. Diplomatic privileges and immunities

Diplomatic privileges and immunities are a set of special rights and advantages enjoyed by diplomatic missions and their personnel in host countries. By granting such rights and benefits, thereby withdrawing foreign diplomats from their jurisdiction, states act on the basis of reciprocity, are guided by the principles of sovereignty and equality of subjects of international law, and seek to provide diplomatic missions with the most favorable conditions for the performance of their functions and tasks.

For a long time, diplomatic rights and privileges were determined by customary rules, which were formed mainly on the basis of many years of application of individual rules established by the Protocols of the Vienna (1815) and Aachen (1818) congresses. Since the second half of the 19th century, repeated attempts have been made to codify the relevant norms by private individuals and organizations; tried, but, alas, unsuccessfully to contribute to the League of Nations. And only the efforts of the UN International Law Commission, which came to grips with this problem in the 1950s, led to positive results. As a result, the Vienna Convention on Diplomatic Relations, adopted in 1961, became a universal international legal document, which most fully reflects the scope and nature of diplomatic immunities and privileges. Later, some other agreements related to the regulation international relations: in 1963 - the Vienna Convention on Consular Relations, and in 1975 - the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.

According to the 1961 Vienna Convention All immunities and privileges are divided into two categories:

- related to diplomatic representation(inviolability of premises, immunities of property and means of transportation, correspondence and archives; fiscal immunity; the right to unimpeded communication of the representative office with the center and other representative offices of their state; customs and other privileges);

- to diplomatic personnel and members of their families(inviolability of the person, home; full immunity from the criminal jurisdiction of the host state, as well as from civil and administrative jurisdiction in relation to enforcement actions; fiscal immunity; customs privileges; exemption from personal duties). However, some exceptions are allowed. Thus, an action in rem may be brought against immovable property that a diplomat or a member of his family personally owns. It is possible to bring a claim in a probate case in which a diplomat or a member of his family acts as heirs, as well as a claim for a professional or commercial activity in which they are engaged in for personal gain.

The diplomatic staff has right of free movement within the territory of the host state subject to the rules on so-called restricted areas, if any. Near countries installed notification order of movement, requiring submission to the Ministry of Foreign Affairs of the corresponding note, which indicates the time and route of the trip.

The receiving state is obliged to ensure effective external security of the premises of the diplomatic mission; authorities (investigators, bailiffs, fire inspection etc.) to these premises without the consent of the head of the mission. It is important to emphasize that the civil status of the building and land occupied by the representative office (lease or ownership) does not affect the possession of immunities and privileges.

Mission vehicles(equipped with special numbers) enjoy immunity from arrest, requisition, search, etc. However, the detention, for example, of a person in of the perpetrator is not a violation of diplomatic status, since possible coercive actions will be directed in this case against the person concerned, and not the vehicle. Diplomatic mail enjoys absolute immunity; it is also not limited by weight or number of seats. However, if the normal channels are used for the delivery of correspondence, then the special agreements in force in this case between the States concerned must be strictly observed. If they are violated, mail may be delayed and even opened.

Diplomatic luggage (items intended for the official use of the mission, as well as for the personal use of a diplomat or members of his family) are not subject to customs duties and taxes. Personal luggage may be examined only in the presence of the person concerned or his representative, if there are serious grounds to suspect the presence in it of objects prohibited for import and export. True, life makes adjustments to this seemingly unshakable norm of diplomatic practice. Currently, in many countries, in view of the growing threat of terrorism and for the sake of ensuring flight safety, airlines sometimes inspect the luggage of diplomats and their families, and even their personal searches.

In order to improve the guarantees of the inviolability of the personality of diplomats and members of their families, the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, was adopted in 1973 (entered into force in 1977)

Persons from the administrative and technical staff, non-citizens of the receiving state or non-residents of the receiving state, not being diplomats, nevertheless enjoy, together with members of their families, inviolability of person, home, fiscal immunity, immunity from criminal jurisdiction, and from civil and administrative - only in respect of acts committed under execution official duties. Items of original equipment addressed to the indicated persons are not subject to customs duties.

At the same time, a family member of a diplomat who is a citizen of the host state does not enjoy diplomatic immunities and privileges.

As for persons from the service personnel, they enjoy immunity only in respect of actions committed by them in the performance of official duties and are exempt from taxes, fees and duties on earnings received by them in the service. Moreover, these limited immunities are not granted to citizens of the receiving state or persons permanently residing there.

AT Russian Federation, as in other countries, the principle of the immunity of a foreign diplomat comes into force from the moment of his arrival in the country and remains even if diplomatic relations are broken (suspended). Violation of personal inviolability, an attack on a diplomat are considered as the most serious incident, fraught with the most negative consequences for relations between states. No discriminatory measures are allowed in relation to the granting of diplomatic privileges and immunities.

The issue of a diplomat's responsibility for a crime committed by him is decided through diplomatic channels. A foreign diplomat may be declared an "undesirable person" ("persona non grata") and expelled from Russia. He bears responsibility for what he has done according to the laws of his country. In his own interests, a diplomat may, on a voluntary basis, testify orally or in writing. This may, for example, take place when an unfriendly act is committed against a diplomat, when he is involved in a traffic accident or some other incident. The waiver of immunity from jurisdiction is made by the sending State and must always be expressly expressed.

To confirm that foreigners belong to the diplomatic staff, the Protocol Department of the Ministry of Foreign Affairs of the Russian Federation issues diplomatic cards identifying them to diplomats and their families - special documents that certify that their owners enjoy all the privileges and immunities provided for by the Regulations on diplomatic and consular missions in force in our country . The basis for issuing a card is a diplomatic passport issued by the accrediting state, and the rank indicated in it. As a sign of confirmation of the special status of vehicles of the diplomatic corps in the Russian Federation, internal affairs bodies issue special license plates: SMD - to the heads of diplomatic missions, D - to diplomatic employees, T - to the administrative, technical and service personnel of embassies in Moscow.

The Vienna Convention of 1961 also imposes a number of duties on diplomatic missions and its employees in relation to the host state. The mission must use its premises for official purposes only and conduct all official relations with the host State through the Ministry of Foreign Affairs and such other departments as may be agreed upon. The duty of the staff is to respect the laws and regulations of the receiving State and not to interfere in its internal affairs. A diplomat cannot practice professional and commercial activities for personal gain.

Special Missions Convention, 1969 ( Soviet Union did not sign it at the time), international custom, as well as special agreements between stakeholders regulate the issues of privileges and immunities of heads of state and other persons of high rank, other representatives and members of special missions traveling abroad. The Charter of the United Nations, the Convention on the Representation of States in Their Relations with International Organizations of a Universal Character and a number of other international legal documents regulate the specifics legal status, immunities and privileges of international organizations, their officials and employees.