This text is hypothetical. The hypothesis is that Dominique Straus-Khan (DSK) tried to invoke diplomatic immunity. As we know, DSK has entered regular legal proceedings, good news for the international community in many respects. Generally speaking, the privileged legal status of diplomats is negatively perceived by the global public. Moreover, in times of crisis in global governance, any use of diplomatic immunity would have additionally negative effects.
The next few paragraphs outline a hypothetical legal argument about the question of DSK’s diplomatic immunity, which could be applied for other heads of international organisations. The main question is whether the heads of these international organisations have full diplomatic immunity (from all judicial actions) or only functional immunity (for acts performed in their official capacity).
In DSK’s case, most international media quoted Secton 8. the of the IMF Articles of Agreement, which specifies functional immunity from jurisdiction.
All Governors, Executive Directors, Alternates, members of committees, representatives appointed under Article XII, Section 3(j), advisors of any of the foregoing persons, officers, and employees of the Fund:
(i) shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity;
Some cynical commentators argued that because he is in jail, DSK cannot perform his function and, thus, is entitled to this ‘functional’ immunity. On a more serious note, analysis of IMF Article 7 shows two elements. First, this article specifies general immunities to a rather broad list of officials, leading to the interpretation that these immunities are, in fact, rather minimal, without excluding the possibility of additional immunity for the head of the organisation. The second point supports the first: the Managing Director of the IMF is not explicitly mentioned in the list of official positions covered by immunity.
Besides the IMF founding document, the question of immunity is also regulated by international law and practice. There are two conventions that deal with diplomatic immunities of the heads of international organisation (the 1946 UN Convention and the 1947 UN Specialised Agencies Convention). Both conventions regulate diplomatic privileges in the same way. They provide ‘functional immunity’ as a general principle, and full diplomatic immunity only to high officials (heads of organisations and deputies). The United States is party to the 1946 UN Convention, but it did not sign or ratify 1947 UN Specialised Agencies Convention, which could be applied to the IMF/DSK case.
One legal approach stops on this point and argues that the head of the IMF does not enjoy full diplomatic immunity. The other approach is based on the international customary law. It argues that there are customary rules that provide heads of international organisations with full diplomatic immunity. International customary rules are binding for all states if they have not made an explicit objection to specific rules.
Let us see if there are international customary rules regulating the diplomatic immunity of heads of international organisations. The customary rules must satisfy two criteria: legal practice and opinio juris. Legal practice is series of acts of states in accordance to customary rules, while opinio juris is awareness that states take such acts out of the sense of legal obligation.
But can we prove the existence of international customary law in the case of diplomatic immunities of heads of international organisations which could be applied to the IMF and other international organisations?
Let us start with the legal practice. There is a clear legal practice of assigning different levels of immunity to regular and high officials of international organisations. This practice dates back to the early days of multilateral organisations. For example, the Secretariat of the League of Nations, established in the 1920s, makes a distinction between high officials, including the Secretary General, and other officials. While high officials have diplomatic immunity, others are provided only with functional immunity. Similar provisions could be identified in the acts of other international organisations in the pre-Second World War period. Governments, i.e. founders of these organisations, supported this practice with the awareness of its legal nature (existence of opinio juris). It is not surprising that one of the first post-war conventions (1946 UN Convention) codified this customary law and laid the basis for the subsequent practice which has been followed to this very day. The approach of granting functional immunity to officials and full diplomatic immunity to high officials has been repeated in many international agreements and has been consistently applied in practice by international organisations. Member states have supported this practice. Therefore, the legal practice, as the first element of customary rule on diplomatic immunity of heads of international organisations, is difficult to challenge.
The situation is more complex with the existence of opinio juris, i.e. states’ awareness that their practices follow legal rules. All 116 of states that signed the 1947 UN Convention on Specialised Agencies explicitly confirmed opinio juris for the customary rule that heads of organisations should enjoy full diplomatic immunity. Since the Unites States has not signed this convention, the process of confirming opinio juris becomes more complex. The first argument for the existence of opinio juris is the fact that the USA did not object to the rule that the Secretary General enjoys full immunity in activities of other international organisations of which the USA is a founding member. For example, the USA did not object to granting full diplomatic immunity to the Secretary Generals of FAO, ITU, OECD, to name a few. The second argument is that while the United States did not adopt the rule of diplomatic immunity for heads of international organisations, it has not objected explicitely to this rule either in its international activities or national legislations.
The legal argument for or against the existence of diplomatic immunity for heads of international organisations based in the USA could have triggered a real legal battle involving some broader issues, such as the relationship between international customary law and the US internal legal system.
Fortunately we have been spared this debate, and move towards further limitation of diplomatic immunity and privileges, which resonates with the values of modern society.