A Primer On Diplomatic Immunity In Commercial Dealings

Diplomatic immunity, distinct from state immunity, is an issue that does not often arise in commercial relations, but one that Canadian companies must nonetheless be mindful of when dealing with foreign states. This article provides a primer on diplomatic immunity.

Nature and Sources

Diplomatic immunity is the protection offered to diplomatic personnel and assets to shield them from the jurisdiction of domestic courts, often referred to as the "host" state's courts. Although it is a broad generalization, diplomatic immunity can usefully be thought of as providing immunity to diplomatic personnel and assets where they are engaged in a diplomatic function. The starting point for the scope of diplomatic functions is:

Article 3

The functions of a diplomatic mission consist, inter alia, in: Representing the sending State in the receiving State; Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; Negotiating with the Government of the receiving State; Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; and, Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.1 Diplomatic immunity arises under international law, primarily from the Vienna Convention on Diplomatic Relations (the "VCDR").2 The VCDR was drafted in 1961 and entered into force in 1964; it has now been ratified by 191 countries including the United States, Canada, and the UK.

Canada's ratification of the VCDR creates an obligation under international law to adhere to it, but does not per se create a domestic legal obligation. However, all international law is incorporated into Canadian domestic law unless there is specific contradictory domestic legislation, per the Supreme Court of Canada decision in Hape.3

Finally, Canada's Foreign Missions and International Organizations Act4 ("FMIOA") creates some confusion by expressly incorporating certain articles from the VCDR into the law of Canada. It is an open question whether Parliament's intent was that the articles not expressly incorporated are not to be considered part of Canadian law, but that question is likely not of great consequence in light of Hape.

Distinction from State Immunity

Diplomatic immunity must be distinguished from state immunity. Justice Braid in...

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