INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

DEPARTMENT OF CIVIL LAW OF AHMAD IBRAHIM KULLIYYAH OF LAWS

SEM II, 22/23

LAWS 3350, Introduction to Public International Law

SECTION 1

INDIVIDUAL ASSIGNMENT:
ASSIGNMENT 10(b): DIPLOMATIC IMMUNITY

LECTURER’S NAME: Prof. Dr. Abdul Ghaffur Hamid

PREPARED BY:

NASHA DZULAIKHA BINTI DZULKARNAEN

(2010984)
Question:

Colonel Smith is the military attache of the Mauritanian Embassy in Putrajaya. He lives in
Centre Point Condominium in Kuala Lumpur, with his wife Cynthia and their only daughter
Linda, 19 years, a first-year Information Technology student at Sunway University.
Being a psychiatrist, Cynthia rents an apartment in Kuala Lumpur for her practice, but she
misuses it by opening a nightclub. Now her landlord is preparing to bring legal action against her
for breach of the tenancy agreement.
On her way back from a supermarket, Linda's car knocks down an old woman, who dies on the
spot. The police want to arrest Linda and initiate legal proceedings against her.

Advise Cynthia's landlord and the police.

Issues:

1. Whether the landlord can bring a civil action against Cynthia?

2. Whether the police can bring a criminal suit against Linda for the death of the old
woman.

Sub-issue (a) for Issue 1

The first sub-issue for issue 1 is whether Cynthia is a person with entitled diplomatic immunity.

Rules

Article 1(d) of the Vienna Convention on Diplomatic Relations (VCDR) stated that the
“members of the diplomatic staff” are the members of the staff of the mission having diplomatic
rank and Article 1(e) mentions that a “diplomatic agent” is the head of the mission or a member
of the diplomatic staff of the mission. Moreover, Article 37(1) of the same law indicates that if
the family members of a diplomatic agent, who are not citizens of the receiving State, are part of

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the diplomatic agent's household, they are entitled to the privileges and immunities outlined in
articles 29 to 36. In the case of Engelke v. Musmann1, the court clarified the meaning of
"family" in the context of diplomatic immunity. It held that the term "family" refers to the spouse
and dependent children who are living with the diplomatic agent or member of the mission. This
means that the diplomatic agent's or member's spouse and children who reside with them are
considered part of their family and are entitled to the same privileges and immunities as the
diplomatic agent or member of the mission.

Application & conclusion

Colonel Smith is identified as the military attaché of the Mauritanian Embassy in Putrajaya. As a
military attaché, he holds a diplomatic position and is therefore considered a diplomatic agent.
This status grants him the highest degree of privileges and immunities. Moreover, according to
Article 37(1) of the VCDR, if the family members of a diplomatic agent, who are not citizens of
the receiving State (in this case, Malaysia), are part of the diplomatic agent's household, they are
entitled to the privileges and immunities specified in articles 29 to 36. Based on this provision,
Cynthia, as a family member residing with Colonel Smith, would be entitled to the same
privileges and immunities as the diplomatic agent. In particular, Cynthia enjoys privileges like
the inviolability of a person where Cynthia would be protected from arrest or detention by the
local authorities unless there is a serious crime committed by her or a court order. Moreover,
Cynthia also has inviolability of residence which means that the residence where Cynthia and
Colonel Smith reside, which is likely the official residence, would enjoy diplomatic inviolability.
It is protected from search, entry, or any form of interference by the host country's authorities.

Therefore, Cynthia is entitled to diplomatic immunity.

1
Engelke v. Musmann. (2016). ‌

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Sub-issue (b) for Issue 1

Whether Cynthia is immune from the local jurisdiction.

Rule

In this sub-issue, we can refer to Article 31(1) of the Vienna Convention on Diplomatic Relations
(VCDR) which is a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction,
except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
This provision establishes the principle that diplomatic agents, including their family members,
are generally immune from the criminal jurisdiction of the receiving State. They are also immune
from its civil and administrative jurisdiction, except for certain cases involving real property.

Moreover, we can refer to the case of Empson v Smith where there was a breach of tenancy
agreement by an administrative officer and the court then held that he was not entitled to
immunity as it was not within his official duty.

Application & conclusion

In the given scenario, Cynthia has rented an apartment in Kuala Lumpur for her practice but has
misused it by opening a nightclub, which could be considered a violation of the tenancy
agreement. Cynthia's actions in operating a nightclub are considered unrelated to her role as a
diplomatic spouse. Since the legal action pertains to a private immovable property situated in

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Malaysia which is the receiving State, Cynthia's diplomatic immunity is not applicable in this
specific civil matter. This is referring to Article 31(1) of the VCDR.
As a result, she is not immune from the jurisdiction of the Malaysian courts which is the
local jurisdiction, and the landlord could proceed with the legal action to seek redress for the
breach of the tenancy agreement.

Sub-issue (a) for Issue 2

Whether Linda is entitled to diplomatic immunity.

Rule

In this sub-issue, we must again refer to the Vienna Convention on Diplomatic Relations
(VCDR) and Article 1(d) defines "members of the diplomatic staff" as staff members of a
diplomatic mission holding diplomatic rank, while Article 1(e) states that a "diplomatic agent"
can be either the head of the mission or a member of the diplomatic staff. Furthermore, Article
37(1) specifies that non-citizen family members residing in the diplomatic agent's household are
entitled to the privileges and immunities outlined in articles 29 to 36.
In the Engelke v. Musmann case, the court provided clarification on the meaning of "family" in
relation to diplomatic immunity. It determined that "family" refers to the spouse and dependent
children living with the diplomatic agent or member of the mission. As a result, the spouse and
children who reside with the diplomatic agent or member are considered part of the family and
are entitled to the same privileges and immunities as the diplomatic agent or member of the
mission.

Application

Linda is the daughter of Colonel Smith, who is a military attaché and a diplomatic agent. As a
family member living with a diplomatic agent, Linda is generally entitled to the same privileges
and immunities as her father under diplomatic immunity laws. According to the Vienna

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Convention on Diplomatic Relations (VCDR), diplomatic agents enjoy immunity from the
criminal jurisdiction of the receiving State. Similar to her mom, Linda enjoys privileges like the
inviolability of a person where she would also be protected from arrest or detention by the local
authorities unless there is a serious crime committed by her or a court order. Linda also has
immunity from local jurisdiction where Linda would generally be immune from the jurisdiction
of the receiving State's courts, which means she cannot be sued or prosecuted in local courts,
except in certain exceptional cases where the immunity is waived by the sending State. This
means that Linda, as a family member of a diplomatic agent, also benefits from this absolute
immunity and cannot be subjected to any criminal action.

Therefore, Linda is entitled to diplomatic immunity.

Sub-issue (b) for Issue 2

Whether the immunity can be waived so the police can bring legal action against Linda.

Rule

Article 32(1) provides guidance in this sub-issue. It states that the immunity of diplomatic agents
and individuals enjoying immunity under Article 37 can be waived by the sending State. In cases
where a sending State decides to waive the immunity of its diplomat who has violated the laws
of the receiving State, the diplomat will no longer be protected by absolute diplomatic immunity
from criminal proceedings. Consequently, the receiving State has the authority to initiate legal
action against the diplomat. It is important to note that this waiver must be explicitly expressed
by the sending State, clearly indicating its intention to revoke the diplomatic immunity. In
addition, we may also refer to the case in 1985 where the State Zambia made the decision to
waive the immunity of its official at its London embassy who was suspected of drug offenses. By
waiving the diplomatic immunity, Zambia allowed the receiving State, in this case, the United
Kingdom, to initiate legal proceedings against the diplomatic agent for the alleged drug offenses.
This demonstrates that the sending State, Zambia, explicitly waived the immunity of its official,
thereby enabling the receiving State to pursue criminal charges against the individual.

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Application

As a diplomatic agent's daughter, Linda would generally be entitled to the same privileges and
immunities as her parents, including personal inviolability and immunity from the criminal
jurisdiction of the receiving State, as specified in Article 31(1) of the Convention.
However, it's important to note that diplomatic immunity can be waived by the sending State as
per Article 32(1). The sending State, in this case, Mauritania, can waive Linda's diplomatic
immunity similarly to the case referred, and then the receiving State, Malaysia, would be able to
initiate legal proceedings against her for her involvement in the car accident.

Therefore, the immunity can be waived so the police can bring legal action against Linda.

Analysis

The principle of legal immunity for diplomatic agents, safeguarded by both international and
national laws, has long been recognized and protected. Its purpose, as stated in the Fourth Recital
of the Vienna Convention on Diplomatic Relations 1961, is not to benefit individuals, but rather
to facilitate the effective performance of diplomatic missions in representing their respective
states. By granting diplomatic agents immunity from civil and criminal suits, they are able to
carry out their official duties without distractions. The principle of reciprocity comes into play, as
the host country ensures that diplomats within their territory are shielded from legal actions with
the expectation that their own diplomats will receive the same treatment while in other countries.
Diplomatic immunity is a fundamental principle in international law that grants certain privileges
and immunities to diplomats and their family members. It is based on the recognition that
diplomats play a crucial role in facilitating international relations and that they should be able to
carry out their duties without fear of interference or harassment by the host country.

One of the key principles of diplomatic immunity is the inviolability of the person, which
protects diplomats from arrest, detention, or prosecution by the host country's authorities. This

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principle ensures that diplomats can perform their functions without the fear of being subject to
legal proceedings that may interfere with their work.

Additionally, diplomatic immunity grants diplomats immunity from the civil and administrative
jurisdiction of the receiving state, safeguarding them from lawsuits or legal actions. However,
there are exceptions to this immunity, such as cases involving private immovable property,
commercial activities outside official functions, or actions related to succession.

Diplomatic immunity also extends to family members residing with diplomats. The VCDR
recognizes the importance of maintaining family unity and grants similar privileges and
immunities to eligible family members, ensuring their protection and security.

It is worth noting that diplomatic immunity is not absolute and can be waived by the sending
state. This means that the sending state has the authority to revoke the immunity of its diplomats,
allowing the receiving state to initiate legal proceedings against them. Waivers of immunity are
typically made in exceptional cases where the sending state considers it appropriate.

Diplomatic immunity law serves as a crucial mechanism for maintaining stable and productive
diplomatic relations between nations. It balances the need to protect diplomats and their families
while also respecting the legal systems and sovereignty of host countries. By providing
diplomats with certain privileges and immunities, diplomatic immunity law enables diplomats to
fulfill their diplomatic functions effectively, fostering open communication and negotiation
between states.