Document Type

Article

Publication Date

1988

Abstract

A consular officer, mistaken for a' trespasser as he leaves his mission to attend a cultural function, struggles with a police officer and is subsequently charged with assault and battery.1 The Vienna Convention on Consular Relations 2 provides that consular officers3 are immune from jurisdiction for "acts performed in the exercise of consular functions."4 Does the Vienna Convention shield the consular officer from suit? The scope of consular immunity is uncertain because courts differ in their application of the Convention's immunity rule.

This Note argues that a principled interpretation of the scope of consular immunity consistent with the Vienna Convention requires a functional approach, 5 based on whether immunity for the act giving rise to suit is necessary for the performance of a recognized consular function. Part I describes the Vienna Convention's treatment of consular immunity and examines the disparate standards courts and commentators have applied in interpreting the scope of this immunity. Part II argues that functional necessity is the legal basis of consular immunity under the Convention and that the scope of the immunity is defined by balancing the interests of sending and receiving states. Part II further contends that previous standards are inconsistent with this basis. Finally, Part III defines and applies a functional test of immunity derived from the Vienna Convention, illustrating its consonance with both the theory and policy of the Convention.

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