Peter Philipp Germelmann
Diplomatische Immunität als Sonderopfer: Haftet die Bundesrepublik Deutschland für völkerrechtliche Verpflichtungen?
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Diplomatic immunity is one of the oldest rules of international law. Based on custom and international practice, it is formalised in the Vienna Convention on Diplomatic Relations of April 1969. Ratified by 190 states, this treaty incorporates the above-mentioned customary rules and gives them a more constant application by the signatory states. Under the Convention, diplomatic agents are granted extensive privileges and immunities from the jurisdiction of the receiving state. These prohibit prosecution or lawsuits against a diplomatic agent and can thus prejudice the rights and interests of private individuals seeking legal action against a diplomatic agent. Whilst such privileges are explicitly not intended as a carte blanche for diplomats to deliberately avoid liability for their actions, diplomatic immunity remains subject to abuse. This danger is aggravated by the fact that the receiving state only has very limited means of reacting to a breach of national law by a diplomatic agent. The remedies envisaged under the Convention would generally strain diplomatic and political relations between the sending and receiving states. As a result, states tend to be reluctant to use them in practice. Recent cases of severe mistreatment, exploitation and slavery-like working conditions of private domestic workers in diplomats' households have brought the issue of abuse and the need for compensation for the effects of immunity to wider public attention. This article first analyses the current status of the principle of diplomatic immunity in international law and its interpretation and application in the German legal system, before examining whether the incorporation of this principle might infringe fundamental constitutional rights. Furthermore, it examines a possible obligation on the part of the German state to offer compensation for the domestic application of diplomatic immunity – especially in those cases where the internal effects of this international principle entirely deprive individuals of remedies to which they would in fact be entitled under German law. Whilst the German system of state liability was not primarily developed to counter the negative effects deriving from the application of international law, it nevertheless offers certain means of compensation for a »special sacrifice« that individual citizens must endure for the protection of a general public interest. This article identifies and describes the national basis for such claims, putting forward concrete proposals for an implementation of the effects of diplomatic immunity within the German system of state liability. The article ends with an examination of the recent case-law of the French Conseil d'État, which issued judgements in general on the subject of compensation for the application of international law, as well as specifically on the claims of private domestic workers in diplomats' households.