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Fiji Legislation |
LAWS OF FIJI
CHAPTER 8
DIPLOMATIC PRIVILEGES AND IMMUNITIES
Acts Nos. 26 of 1971, 52 of 1971, 32 of 1972, 13 of 1977
AN ACT
TO AMEND THE LAW RELATING TO DIPLOMATIC PRIVILEGES AND IMMUNITIES AND TO GIVE
EFFECT TO THE VIENNA CONVENTION ON DIPLOMATIC
RELATIONS
[13th May, 1971]
Short title
1. This Act may be cited
as the Diplomatic Privileges and Immunities Act.
Interpretation
2.-(1) In this Act, unless
the context otherwise requires-
"Convention" means the Vienna Convention on Diplomatic Relations signed in 1961, a copy of the English text of which is set out in the First Schedule;
"organisation" means any organisation referred to in section 6;
"mission" means a diplomatic mission of any State;
"State" means a foreign state or any Commonwealth country.
(2)
All expressions used in this Act and defined in Article I of the Convention have
the same meanings as those given to them in the
Convention.
Application of Convention
3.-(1) Subject to the
provisions of subsection (6), the provisions of Articles 1, 22 and 24 inclusive,
and 27 to 40 inclusive, of
the Convention shall have the force of law in
Fiji.
(2) Without prejudice to the
provisions of subsection (1), the Minister, with the concurrence of the Minister
responsible for finance,
may from time to time determine, either generally or in
any case or class of case, the fiscal privileges which shall to be accorded
to
any mission or persons connected with any mission, notwithstanding that the
determination may extend treatment more favourable
than that required by the
provisions of the Convention, and may in like manner determine the terms and
conditions on which those
privileges may be
enjoyed.
(3) For the purpose of
giving effect to any custom or agreement by which Fiji and any other State
extend to each other treatment more
favourable than is required by the
provisions of the Convention, the Minister may from time to time, by order,
declare that a mission
of that State and persons connected with that mission
shall be accorded such immunity from jurisdiction and inviolability, as are
specified in the order:
Provided
that nothing in this subsection does not shall apply with respect to persons to
whom section 4 applies.
(4) In
subsections (2) and (3), the expression "treatment more favourable" includes the
according of privileges or immunities, as
the case may be, to persons who under
the Convention may enjoy privileges and immunities only to the extent admitted
by the receiving
State.
(5) Where,
by or by virtue of under this Act, immunity from jurisdiction is accorded to
persons who are not diplomatic agents or persons
enjoying immunity under Article
37 of the Convention, the immunity accorded to those first-mentioned persons may
be waived in the
manner and subject to the conditions specified in Article 32 of
the Convention and the waiver shall have the same consequences as
a waiver under
that Article.
(6) For the purposes
of the provisions of the Articles referred to in subsection (1)-
(a) a reference in those provisions the Articles to the receiving State shall is to be construed as a reference to Fiji;
(b) a reference in those provisions the Articles to a national of the receiving State shall is to be construed as a reference to a Fiji citizen;
(c) the reference in paragraph 1 of Article 22 to agents of the receiving State shall is to be construed as including a reference to any police officer and any person exercising a power of entry to premises;
(d) the reference in Article 32 to waiver by the sending State shall is to be construed as including a waiver by the head of the mission of the sending State or by a person for the time being performing the functions of the head of mission;
(e) Articles 35, 36 and 40 shall is to be construed as granting the privileges or immunities that those Articles require to be granted;
(f) the reference in paragraph 1 of Article 36 to such laws and regulations as the receiving State may adopt shall is to be construed as including a reference to any law in force in Fiji relating to the quarantine, or the prohibition or restriction of the importation into or the exportation from Fiji of animals, plants, or goods:
Provided that any immunity from jurisdiction that a person may possess or enjoy by virtue of subsection (1) shall not be prejudiced;
(g) the reference in paragraph 4 of Article 37 to the extent to which privileges and immunities are admitted by the receiving State, and the reference in paragraph 1 of Article 38 to any additional privileges and immunities that may be granted by the receiving State, shall, so far as they relate to privileges, is to be construed as references to such determinations as may be made by the Minister pursuant to subsection (2), and, so far as they relate to immunities, be construed as references to such immunities as may be conferred by an order under subsection (3);
(h) the reference in paragraph 2 of Article 38 to the extent to which privileges and immunities are admitted by the receiving State shall, so far as it relates to privileges, be construed as reference to such determinations as may be made by the Minister pursuant to subsection (2), and, so far as it relates to immunities, is to be construed, in relation to persons to whom section 4 applied, as a reference to immunities conferred by that section, and, in relation to other persons to whom that paragraph applies, as a reference to such immunities as may be conferred by an order under subsection (3).
Fiji residents and citizens
4. The members of the
administrative and technical staff, and members of the service staff, of a
mission who are Fiji citizens or
are permanently resident in Fiji shall be
accorded immunity from jurisdiction, and inviolability, only in respect of
official acts
performed in the exercise of their functions.
Withdrawal of diplomatic privileges and immunities
5. Where the Minister is
satisfied that the privileges and immunities accorded in relation to a mission
of Fiji in any State, or to
persons connected with that mission, are less than
those conferred by or by virtue of this Act in relation to the mission of that
State, or to persons connected with that mission, he the Minister may, by order,
withdraw, modify, or restrict, in relation to that
mission or to persons
connected with that mission, such of the privileges and immunities so conferred
to such extent as appears to
him to be proper.
International organisations
6.-(1) This section shall
applies to any organisation declared by the Minister, by order, to be an
organisation of which two or more
States or the Governments thereof are
members.
(2) The Minister may from
time to time, by order-
(a) provide that any organisation to which this section applies shall, to such extent as may be specified in the order, have the privileges and immunities specified in the Second Schedule, and shall also have the legal capacities of a body corporate;
(b) confer upon-
(i) any persons who are representatives (whether of Governments or not) on any organ of the organisation or at any conference convened by the organisation or are members of any committee of the organisation or of any organ thereof;
(ii) such officers or classes of officers of the organisation as are specified in the order, being the holders of such high offices in the organisation as are so specified;
(iii) such persons employed on missions on behalf of the organisation as are specified in the order, to such extent as may be specified in the order, the privileges and immunities specified in the Third Schedule;
(c) confer upon such other classes of officers and servants of the organisation as are specified in the order, to such extent as may be so specified, the privileges and immunities specified in the Fourth Schedule,
and
the Fifth Schedule shall has effect for the purpose of extending to the staffs
of such representatives and members as are mentioned
in subparagraph (i) of
paragraph (b)(i) and to the members of the families forming part of the
household of officers of the organisation
any privileges and immunities
conferred on the representatives, members, or officers under that paragraph,
except in so far as the
operation of the Fifth Schedule is excluded by the order
conferring the privileges and
immunities:
Provided that no order
made under the provisions of this subsection shall confers any privilege or
immunity upon any person as the
representative of Her Majesty in right of Fiji
or of the Government of Fiji or as a member of the staff of such a
representative.
Members of international organisations employed by Government
7.-(1) Whenever the
services of any person are provided for appointment to the public service of
Fiji pursuant to an agreement between
any of the international organisations
specified in the Sixth Schedule and the Government of Fiji, it shall be lawful
for the Minister
by order to confer upon any such person to such extent a may be
specified therein the immunities and privileges set out in the Seventh
Schedule.
(2) Every order made
under the provisions of subsection (1) shall state the date from which the
immunities and privileges thereby
conferred shall take
effect.
(3) Whenever any person
ceases to be entitled to the immunities and privileges conferred by any order
made under this Act the Minister
shall cause a notice to that effect to be
published in the Gazette.
(4) The
Minister may at any time by notice in the Gazette add to, vary or delete the
whole or any part of the Sixth Schedule with
effect from the date specified in
such notice.
(5) The fact that any
person is or was entitled or not entitled to any of the immunities or privileges
set out in the Seventh Schedule
may be conclusively proved by producing the
Gazette containing the relevant order or notice whichever is the
case.
Persons employed on duties within Fiji
8.-(1) Whenever the
services of any person are provided by a State, an organisation, or by an
agency, by whatever name called, sponsored
by a State or organisation, for
duties within Fiji approved by the Minister and such person is not entitled to
immunities and privileges
under the provisions of either section 6 or section 7,
the Minister may by order either-
(a) declare the members of any such organisation or agency specified in the order to be persons who shall be entitled to the immunities and privileges set out in the Eighth Schedule; or
(b) confer upon any such person such of the immunities and privileges set out in the Eighth Schedule as may be specified in the order.
(2)
Every order made under the provisions of paragraph (b) of subsection (1) shall
state the date from which immunities and privileges
thereby conferred shall take
effect.
(3) Whenever any person
ceases to be entitled to the immunities and privileges conferred by any order
made under the provisions of
paragraph (b) of subsection (1), the Minister shall
cause a notice to that effect to be published in the
Gazette.
(4) The fact that any
person is or was entitled or not entitled to any of the immunities or privileges
set out in the Eighth Schedule
may be conclusively proved by producing the
Gazette containing the relevant order or notice, whichever is the
case.
International Court of Justice
9. The Minister may from
time to time by order confer on the Judges and Registrars of the International
Court of Justice established
by the Charter of the United Nations, and on
suitors to that Court and their agents, counsel, and advocates, such privileges,
immunities,
and facilities as may be required to give effect to any resolution
of, or convention approved by, the General Assembly of the United
Nations.
International conferences
10. Where-
(a) a conference is held in Fiji and is attended by representatives of the Government of Fiji and the Government or Governments of one or more States or of any of the territories for whose international relations any of those Governments is responsible; and
(b) it appears to the Minister that doubts may arise as to the extent to which the representatives of those Governments (other than the Government of Fiji) and members of their official staffs are entitled to privileges and immunities,
the
Minister may, by notice in the Gazette, direct that every representative of any
such Government (other than the Government of
Fiji) shall be accorded such of
the privileges and immunities conferred by or by virtue of sections 3 and 4 on a
diplomatic agent
as the Minister specifies, and that such of the members of his
official staff as the Minister may direct shall be accorded such of
the
privileges and immunities conferred by or by virtue of sections 3 and 4 on
members of the diplomatic staff or the administrative
and technical staff of a
diplomatic mission as the Minister specifies.
Reciprocal treatment
11. Nothing in this Act
shall be construed as precluding the Minister from declining to accord
privileges or immunities to, or from
withdrawing, modifying, or restricting
privileges or immunities in relation to, nationals or representatives of any
State, or the
Government thereof, on the ground that that State, or the
Government thereof, is failing to accord corresponding privileges or immunities
to Fiji.
Exemption from taxation
12.-(1) Notwithstanding
anything to the contrary in any Act, the Minister, with the concurrence of the
Minister responsible for finance,
may from time to time wholly or partly exempt
from any public or local tax, duty, rate, levy, or fee any of the following
Governments
or persons:-
(a) the Government of any State or the Government of any territory for whose international relations the Government of any such State is responsible or any office or organisation forming part of, or sponsored by, any such Government;
(b) a representative or officer of the Government of any country other than Fiji or of any provisional Government, national committee, international organisation or other authority recognised by Her Majesty in right of Government of Fiji, if he is temporarily resident in Fiji in accordance with any arrangement made with the Government of Fiji;
(c) a member of the official or domestic staff, or a spouse or dependent child, of any person to whom paragraph (b) applies.
(2)
*Subject to the provisions of any international convention, treaty or
arrangement to which Fiji is a party, where a person who
is a member of the
official or domestic staff of a person to whom paragraph (b) of subsection
(1)(b) applies is a Fiji citizen and
not a citizen of the country concerned, or
is not resident in Fiji solely for the purpose of performing his duties as such
a member,
that person shall not, and the spouse and dependent children of that
person shall not by reason only of their being a member of his
family, be
entitled to any exemption granted under subsection
(1).
General
exemptions
13.-(1) The powers
conferred on the Minister by sections 6, 7 and 12 of this Act shall be are
deemed to include power to exempt from
stamp duty under the Stamp Duties Act and
from any fee or duty under any other Act any instrument or class of instruments
to which any organisation, government, or person,
as the case may be, to which
or to whom the order or exemption applies is a
party.
(2) The powers conferred on
the Minister by section 12 shall be are deemed to include power on the death of
any person referred to
in paragraph (b) or paragraph (c) of subsection (1) of
section 12(1)-
(a) to exempt wholly or partly the estate of that person from estate duty under the Estate and Gift Duties Act; and
(Cap. 203)
(b) to exempt any instrument or document or class of instruments or documents made for or relating to the appointment of an executor or administrator in the estate of that person, or to the administration or distribution of the estate, from stamp duty under the Stamp Duties Act and from any fee or duty under any other Act.
(Cap. 205)
(3)
Any exemption granted by the Minister under section 12 may be granted either
unconditionally or subject to such conditions as
the Minister thinks fit, and
the Minister may at any time revoke any such exemption or revoke, vary, or add
to any such conditions.
(4) Every
An exemption referred to in subsection (3) shall comes into force on such date
as may be specified in that behalf the date
specified by the Minister. The date
so specified may be before or after the date of the granting of the exemption or
before or after
the commencement of this
Act.
(5) Notwithstanding the
provisions of any exemption referred to in subsection (3), any question arising
as to the nature or extent
of any such exemption, or to the governments or
persons entitled to any such exemption, shall be referred to and be determined
by
the Minister. The decision of the Minister shall not be liable to be
challenged, reviewed, quashed or called in question in any court.
Refunds of payments
14.-(1) The Minister
responsible for finance may direct that such refunds or payments be made from
any public fund or account or from
the money of any local authority, public
body, or person as may in the opinion of that Minister be necessary to give
effect to any
fiscal privilege accorded pursuant to section 3 or to any
exemption granted under section 6, 8, 9 or
10.
(2) Where any loss is suffered
by any local authority, public body, or person by reason of the conferring of
any such privilege or
the granting of any such exemption or by the making of any
refund or payment directed under this section, the Minister responsible
for
finance may direct that such payments be made from the Consolidated Fund to that
local authority, public body, or person as may
be necessary in the opinion of
that Minister to reimburse that loss.
Certificate of Minister
15. If in any proceedings
any question arises whether or not any person or any organisation is or was at
any time or in respect of
any period accorded any privilege or immunity under or
by virtue of this Act, a certificate issued by the Minister stating any fact
relevant to that question shall be conclusive evidence of that
fact.
Amended by
Act No. 32 of 1972.
Saving
16. This Act shall not
affect any legal proceedings begun before the commencement of this
Act.
Regulations
17. The Minister may make
regulations for such matters as are contemplated by or necessary for giving full
effect to this Act and
for the due administration thereof of it.
FIRST
SCHEDULE
THE
VIENNA CONVENTION ON DIPLOMATIC RELATION*
THE STATES PARTIES TO THE
PRESENT CONVENTION
RECALLING that
peoples of all nations from ancient times have recognised the status of
diplomatic agents,
HAVING IN MIND
the purposes and principles of the Charter of the United Nations concerning the
sovereign equality of States, the maintenance
of international peace and
security, and the promotion of friendly relations among
nations,
BELIEVING that an
international convention on diplomatic intercourse, privileges and immunities
would contribute to the development
of friendly relations among nations,
irrespective of their differing constitutional and social
systems,
REALISING that the
purpose of such privileges and immunities is not to benefit individuals but to
ensure the efficient performance
of the functions of diplomatic missions as
representing States,
AFFIRMING
that the rules of customary international law should continue to govern
questions not expressly regulated by the provisions
of the present
Convention,
HAVE AGREED as
follows:
ARTICLE I
For the purpose of the
present Convention, the following expressions shall have the meanings hereunder
assigned to them:
(a) the "head of the mission" is the person charged by the sending State with the duty of acting in that capacity;
(b) the "members of the mission" are the head of the mission and the members of the staff of the mission;
(c) the "members of the staff of the mission" are the members of the diplomatic staff, of the administrative and technical staff and of the service staff of the mission;
(d) the "members of the diplomatic staff" are the members of the staff of the mission having diplomatic rank;
(e) a "diplomatic agent" is the head of the mission or a member of the diplomatic staff of the mission;
ARTICLE 6
Two or more States may
accredit the same person as head of mission to another State, unless objection
is offered by the receiving
State.
ARTICLE 7
Subject to the provisions
of Articles 5, 8, 9 and II, the sending State may freely appoint the members of
the staff of the mission.
In the case of military, naval or air attaches, the
receiving State may require their names to be submitted beforehand, for its
approval.
ARTICLE 8
1. Members of the
diplomatic staff of the mission should in principle be of the nationality of the
sending State.
2. Members of the
diplomatic staff of the mission may not be appointed from among persons having
the nationality of the receiving
State, except with the consent of that State
which may be withdrawn at any
time.
3. The receiving State may
reserve the same right with regard to nationals of a third State who are not
also nationals of the sending
State.
ARTICLE 9
1. The receiving State may
at any time and without having to explain its decision, notify the sending State
that the head of the mission
or any member of the diplomatic staff of the
mission is persona non grata or that any other member of the staff of the
mission is
not acceptable. In any such case, the sending State shall, as
appropriate, either recall the person concerned or terminate his functions
with
the mission. A person may be declared non grata or not acceptable before
arriving in the territory of the receiving
State.
2. If the sending State
refuses or fails within a reasonable period to carry out its obligations under
paragraph I of this Article,
the receiving State may refuse to recognise the
person concerned as a member of the mission.
ARTICLE 10
1. The Ministry for
Foreign Affairs of the receiving State, or such other ministry as may be agreed,
shall be notified of:
(a) the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the mission;
(b) the arrival and final departure of a person belonging to the family of a member of the mission and, where appropriate, the fact that a person becomes or ceases to be a member of the family of a member of the mission;
(c) the arrival and final departure of private servants in the employ of persons referred to in sub-paragraph (a) of this paragraph and, where appropriate, the fact that they are leaving the employ of such persons;
(d) the engagement and discharge of persons resident in the receiving State as members of the mission or private servants entitled to privileges and immunities.
2.
Where possible, prior notification of arrival and final departure shall also be
given.
ARTICLE 11
1. In the absence of
specific agreement as to the size of the mission, the receiving State may
require that the size of a mission
be kept within limits considered by it to be
reasonable and normal, having regard to circumstances and conditions in the
receiving
State and to the needs of the particular
mission.
2. The receiving State
may equally, within similar bounds and on a non-discriminatory basis, refuse to
accept officials of a particular
category.
ARTICLE 12
The sending State may not,
without the prior express consent of the receiving State, establish offices
forming part of the mission
in localities other than those in which the mission
itself is established.
ARTICLE 13
1. The head of the mission
is considered as having taken up his functions in the receiving State either
when he has presented his
credentials or when he has notified his arrival and a
true copy of his credentials has been presented to the Ministry for Foreign
Affairs of the receiving State, or such other ministry as may be agreed, in
accordance with the practice prevailing in the receiving
State which shall be
applied in a uniform manner.
2.
The order of presentation of credentials or of a true copy thereof will be
determined by the date and time of the arrival of the
head of the
mission.
ARTICLE 14
1. Heads of mission are
divided into three classes, namely:
(a) that of ambassadors or nuncios accredited to Heads of State, and other heads of mission of equivalent rank;
(b) that of envoys, ministers and internuncios accredited to Heads of State;
(c) that of charges d’affaires accredited to Ministers for Foreign Affairs.
2.
Except as concerns precedence and etiquette, there shall be no differentiation
between heads of mission by reason of their class.
ARTICLE 15
The class to which the
heads of their missions are to be assigned shall be agreed between
States.
ARTICLE 16
1. Heads of mission shall
take precedence in their respective classes in the order of the date and time of
taking up their functions
in accordance with Article
13.
2. Alterations in the
credentials of a head of mission not involving any change of class shall not
affect his precedence.
3. This
article is without prejudice to any practice accepted by the receiving State
regarding the precedence of the representative
of the Holy See.
ARTICLE 17
The precedence of the
members of the diplomatic staff of the mission shall be notified by the head of
the mission to the Ministry
for Foreign Affairs or such other ministry as may be
agreed.
ARTICLE 18
The procedure to be
observed in each State for the reception of heads of mission shall be uniform in
respect of each class.
ARTICLE 19
1. If the post of head of
the mission is vacant, or if the head of the mission is unable to perform his
functions, a charge d'affaires
ad interim shall act provisionally as head of the
mission. The name of the charge d'affaires ad interim shall be notified, either
by the head of the mission or, in case he is unable to do so, by the Ministry
for Foreign Affairs of the sending State to the Ministry
for Foreign Affairs of
the receiving State or such other ministry as may be
agreed.
2. In cases where no
member of the diplomatic staff of the mission is present in the receiving State,
a member of the administrative
and technical staff may, with the consent of the
receiving State, be designated by the sending State to be in charge of the
current
administrative affairs of the mission.
ARTICLE 20
The mission and its head
shall have the right to use the flag and emblem of the sending State on the
premises of the mission, including
the residence of the head of the mission, and
on his means of transport.
ARTICLE 21
1. The receiving State
shall either facilitate the acquisition on its territory, in accordance with its
laws, by the sending State
of premises necessary for its mission or assist the
latter in obtaining accommodation in some other
way.
2. It shall also, where
necessary, assist missions in obtaining suitable accommodation for their
members.
ARTICLE 22
1. The premises of the
mission shall be inviolable. The agents of the receiving State may not enter
them, except with the consent
of the head of the
mission.
2. The receiving State is
under a special duty to take all appropriate steps to protect the premises of
the mission against any intrusion
or damage and to prevent any disturbance of
the peace of the mission or impairment of its
dignity.
3. The premises of the
mission, their furnishings and other property thereon and the means of transport
of the mission shall be immune
from search, requisition, attachment or
execution.
ARTICLE 23
1. The sending State and
the head of the mission shall be exempt from all national, regional or municipal
dues and taxes in respect
of the premises of the mission, whether owned or
leased, other than such as represent payment for specific services
rendered.
2. The exemption from
taxation referred to in this Article shall not apply to such dues and taxes
payable under the law of the receiving
State by persons contracting with the
sending State or the head of the mission.
ARTICLE 24
The archives and documents
of the mission shall be inviolable at any time and wherever they may
be.
ARTICLE 25
The receiving State shall
accord full facilities for the performance of the functions of the
mission.
ARTICLE 26
Subject to its laws and
regulations concerning zones entry into which is prohibited or regulated for
reasons of national security,
the receiving State shall ensure to all members of
the mission freedom of movement and travel in its territory.
ARTICLE 27
1. The receiving State
shall permit and protect free communication on the part of the mission for all
official purposes. In communicating
with the Government and the other missions
and consulates of the sending State, wherever situated, the mission may employ
all appropriate
means, including diplomatic couriers and messages in code or
cipher. However, the mission may install and use a wireless transmitter
only
with the consent of the receiving
State.
2. The official
correspondence of the mission shall be inviolable. Official correspondence means
all correspondence relating to the
mission and its
functions.
3. The diplomatic bag
shall not be opened or
detained.
4. The packages
constituting the diplomatic bag must bear visible external marks of their
character and may contain only diplomatic
documents or articles intended for
official use.
5. The diplomatic
courier, who shall be provided with an official document indicating his status
and the number of packages constituting
the diplomatic bag, shall be protected
by the receiving State in the performance of his functions. He shall enjoy
personal inviolability
and shall not be liable to any form of arrest or
detention.
6. The sending State or
the mission may designate diplomatic couriers ad hoc. In such cases the
provisions of paragraph 5 of this
Article shall also apply, except that the
immunities therein mentioned shall cease to apply when such a courier has
delivered to
the consignee the diplomatic bag in his
charge.
7. A diplomatic bag may be
entrusted to the captain of a commercial aircraft scheduled to land at an
authorised port of entry. He
shall be provided with an official document
indicating the number of packages constituting the bag but he shall not be
considered
to be a diplomatic courier. The mission may send one of its members
to take possession of the diplomatic bag directly and freely
from the captain of
the aircraft.
ARTICLE 28
The fees and charges
levied by the mission in the course of its official duties shall be exempt from
all dues and taxes.
ARTICLE 29
The person of a diplomatic
agent shall be inviolable. He shall not be liable to any form of arrest or
detention. The receiving State
shall treat him with due respect and shall take
all appropriate steps to prevent any attack on his person, freedom or
dignity.
ARTICLE 30
1. The private residence
of a diplomatic agent shall enjoy the same inviolability and protection as the
premises of the mission.
2. His
papers, correspondence and, except as provided in paragraph 3 of Article 31, his
property, shall likewise enjoy inviolability.
ARTICLE 31
1. 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.
2.
A diplomatic agent is not obliged to give evidence as a
witness.
3. No measures of
execution may be taken in respect of a diplomatic agent except in the cases
coming under sub-paragraphs (a), (b)
and (c) of paragraph 1 of this Article, and
provided that the measures concerned can be taken without infringing the
inviolability
of his person or of his
residence.
4. The immunity of a
diplomatic agent from the jurisdiction of the receiving State does not exempt
him from the jurisdiction of the
sending State.
ARTICLE 32
1. The immunity from
jurisdiction of diplomatic agents and of persons enjoying immunity under Article
37 may be waived by the sending
State.
2. Waiver must always be
express.
3. The initiation of
proceedings by a diplomatic agent or by a person enjoying immunity from
jurisdiction under Article 37 shall preclude
him from invoking immunity from
jurisdiction in respect of any counterclaim directly connected with the
principal claim.
4. Waiver of
immunity from jurisdiction in respect of civil or administrative proceedings
shall not be held to imply waiver of immunity
in respect of the execution of the
judgment, for which a separate waiver shall be necessary.
ARTICLE 33
1. Subject to the
provisions of paragraph 3 of this Article, a diplomatic agent shall with respect
to services rendered for the sending
State be exempt from social security
provisions which may be in force in the receiving
State.
2. The exemption provided
for in paragraph I of this Article shall also apply to private servants who are
in the sole employ of a
diplomatic agent, on condition:
(a) that they are not nationals of or permanently resident in the receiving State; and
(b) that they are covered by the social security provisions which may be in force in the sending State or a third State.
3.
A diplomatic agent who employs persons to whom the exemption provided for in
paragraph 2 of this Article does not apply shall observe
the obligations which
the social security provisions of the receiving State impose upon
employers.
4. The exemption
provided for in paragraphs I and 2 of this Article shall not preclude voluntary
participation in the social security
system of the receiving State provided that
such participation is permitted by that
State.
5. The provisions of this
Article shall not affect bilateral or multilateral agreements concerning social
security concluded previously
and shall not prevent the conclusion of such
agreements in the future.
ARTICLE 34
A diplomatic agent shall
be exempt from all dues and taxes, personal or real, national, regional or
municipal, except:
(a) indirect taxes of a kind which are normally incorporated in the price of goods or services;
(b) dues and taxes on 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;
(c) estate, succession or inheritance duties .levied by the receiving State, subject to the provisions of paragraph 4 of Article 39;
(d) dues and taxes on private income having its source in the receiving State and capital taxes on investments made in commercial undertakings in the receiving State;
(e) charges levied for specific services rendered;
(f) registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property, subject to the provisions of Article 23.
ARTICLE 35
The receiving State shall
exempt diplomatic agents from all personal services, from all public service of
any kind whatsoever, and
from military obligations such as those connected with
requisitioning, military contributions and billeting.
ARTICLE 36
1. The receiving State
shall, in accordance with such laws and regulations as it may adopt, permit
entry of and grant exemption from
all customs duties, taxes, and related charges
other than charges for storage, cartage and similar services, on:
(a) articles for the official use of the mission;
(b) articles for the personal use of a diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.
2.
The personal baggage of a diplomatic agent shall be exempt from inspection,
unless there are serious grounds for presuming that
it contains articles not
covered by the exemptions mentioned in paragraph I of this Article, or articles
the import or export of
which is prohibited by the law or controlled by the
quarantine regulations of the receiving State. Such inspection shall be
conducted
only in the presence of the diplomatic agent or of his authorised
representative.
ARTICLE 37
1. The members of the
family of a diplomatic agent forming part of his household shall, if they are
not nationals of the receiving
State, enjoy the privileges and immunities
specified in Articles 29 to 36.
2.
Members of the administrative and technical staff of the mission, together with
members of their families forming part of their
respective households, shall, if
they are not nationals of or permanently resident in the receiving State, enjoy
the privileges and
immunities specified in Articles 29 to 35, except that the
immunity from civil and administrative jurisdiction of the receiving State
specified in paragraph I of Article 31 shall not extend to acts performed
outside the course of their duties. They shall also enjoy
the privileges
specified in Article 36, paragraph 1, in respect of articles imported at the
time of first installation.
3.
Members of the service staff of the mission who are not nationals of or
permanently resident in the receiving State shall enjoy
immunity in respect of
acts performed in the course of their duties, exemption from dues and taxes on
the emoluments they receive
by reason of their employment and the exemption
contained in Article 33.
4.
Private servants of members of the mission shall, if they are not nationals of
or permanently resident in the receiving State,
be exempt from dues and taxes on
the emoluments they receive by reason of their employment. In other respects,
they may enjoy privileges
and immunities only to the extent admitted by the
receiving State. However, the receiving State must exercise its jurisdiction
over
those persons in such a manner as not to interfere unduly with the
performance of the functions of the mission.
ARTICLE 38
1. Except insofar as
additional privileges and immunities may be granted by the receiving State, a
diplomatic agent who is a national
of or permanently resident in that State
shall enjoy only immunity from jurisdiction, and inviolability, in respect of
official acts
performed in the exercise of his
functions.
2. Other members of the
staff of the mission and private servants who are nationals of or permanently
resident in the receiving State
shall enjoy privileges and immunities only to
the extent admitted by the receiving State. However, the receiving State must
exercise
its jurisdiction over those persons in such a manner as not to
interfere unduly with the performance of the functions of the
mission.
ARTICLE 39
1. Every person entitled
to privileges and immunities shall enjoy them from the moment he enters the
territory of the receiving State
on proceeding to take up his post or, if
already in its territory, from the moment when his appointment is notified to
the Ministry
for Foreign Affairs or such other ministry as may be
agreed.
2. When the functions of a
person enjoying privileges and immunities have come to an end, such privileges
and immunities shall normally
cease at the moment when he leaves the country, or
on expiry of a reasonable period in which to do so, but shall subsist until that
time, even in case of armed conflict. However, with respect to acts performed by
such a person in the exercise of his functions as
a member of the mission,
immunity shall continue to
subsist.
3. In case of the death
of a member of the mission, the members of his family shall continue to enjoy
the privileges and immunities
to which they are entitled until the expiry of a
reasonable period in which to leave the
country.
4. In the event of the
death of a member of the mission not a national of or permanently resident in
the receiving State or a member
of his family forming part of his household, the
receiving State shall permit the withdrawal of the movable property of the
deceased,
with the exception of any property acquired in the country the export
of which was prohibited at the time of his death. Estate, succession
and
inheritance duties shall not be levied on movable property the presence of which
in the receiving State was due solely to the
presence there of the deceased as a
member of the mission or as a member of the family of a member of the
mission.
ARTICLE 40
1. If a diplomatic agent
passes through or is in the territory of a third State, which has granted him a
passport visa if such visa
was necessary, while proceeding to take up or to
return to his post, or when returning to his own country, the third State shall
accord him inviolability and such other immunities as may be required to ensure
his transit or return. The same shall apply in the
case of any members of his
family enjoying privileges or immunities who are accompanying the diplomatic
agent, or travelling separately
to join him or to return to their
country.
2. In circumstances
similar to those specified in paragraph 1 of this Article, third States shall
not hinder the passage of members
of the administrative and technical or service
staff of a mission, and of members of their families, through their
territories.
3. Third States shall
accord to official correspondence and other official communications in transit,
including messages in code or
cipher, the same freedom and protection as is
accorded by the receiving State. They shall accord to diplomatic couriers, who
have
been granted a passport visa if such visa was necessary, and diplomatic
bags in transit the same inviolability and protection as
the receiving State is
bound to accord.
4. The
obligations of third State under paragraphs 1, 2 and 3 of this Article shall
also apply to the persons mentioned respectively
in those paragraphs, and to
official communications and diplomatic bags, whose presence in the territory of
the third State is due
to force majeure.
ARTICLE 41
1. Without prejudice to
their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to
respect the laws and regulations of the receiving
State. They also have a duty not to interfere in the internal affairs of that
State.
2. All official business
with the receiving State entrusted to the mission by the sending State shall be
conducted with or through
the Ministry for Foreign Affairs of the receiving
State or such other ministry as may be
agreed.
3. The premises of the
mission must not be used in any manner incompatible with the functions of the
mission as laid down in the present
Convention or by other rules of general
international law or by any special agreements in force between the sending and
the receiving
State.
ARTICLE 42
A diplomatic agent shall
not in the receiving State practise for personal profit any professional or
commercial activity.
ARTICLE 43
The function of a
diplomatic agent comes to an end, inter alia:
(a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end;
(b) on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognise the diplomatic agent as a member of the mission.
ARTICLE 44
The receiving State must,
even in case of armed conflict, grant facilities in order to enable persons
enjoying privileges and immunities,
other than nationals of the receiving State,
and members of the families of such persons irrespective of their nationality,
to leave
at the earliest possible moment. It must, in particular, in case of
need, place at their disposal the necessary means of transport
for themselves
and their property.
ARTICLE 45
If diplomatic relations
are broken off between two States, or if a mission is permanently or temporarily
recalled:
(a) the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;
(b) the sending State may entrust the custody of the premises of the mission, together with its property and archives, to a third State acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and those of its nationals to a third State acceptable to the receiving State.
ARTICLE 46
A sending State may with
the prior consent of a receiving State, and at the request of a third State not
represented in the receiving
State, undertake the temporary protection of the
interests of the third State and of its nationals.
ARTICLE 47
1. In the application of
the provisions of the present Convention, the receiving State shall not
discriminate as between States.
2.
However, discrimination shall not be regarded as taking place:
(a) where the receiving State applies any of the provisions of the present Convention restrictively because of a restrictive application of that provision to its mission in the sending State;
(b) where by custom or agreement States extend to each other more favourable treatment than is required by the provisions of the present Convention.
ARTICLE 48
The present Convention
shall be open for signature by all States Members of the United Nations or of
any of the specialised agencies
or Parties to the Statute of the International
Court of Justice, and by any other State invited by the General Assembly of the
United
Nations to become a Party to the Convention, as follows: until 31
October, 1961, at the Federal Ministry for Foreign Affairs of Austria
and
subsequently, until 31 March, 1962, at the United Nations Headquarters in New
York.
ARTICLE 49
The present convention is
subject to ratification. The instruments of ratification shall be deposited with
the Secretary-General of
the United Nations.
ARTICLE 50
The present Convention
shall remain open for accession by any State belonging to any of the four
categories mentioned in Article 48.
The instruments of accession shall be
deposited with the Secretary-General of the United Nations.
ARTICLE 51
1. The present Convention
shall enter into force on the thirtieth day following the date of deposit of the
twenty-second instrument
of ratification or accession with the Secretary-General
of the United Nations.
2. For each
State ratifying or acceding to the Convention after the deposit of the
twenty-second instrument of ratification or accession,
the Convention shall
enter into force on the thirtieth day after deposit by such State of its
instrument of ratification or accession.
ARTICLE 52
The Secretary-General of
the United Nations shall inform all States belonging to any of the four
categories mentioned in Article 48:
(a) of signatures to the present Convention and of the deposit of instruments of ratification or accession, in accordance with Articles 48, 49 and 50;
(b) of the date on which the present Convention will enter into force, in accordance with Article 51.
ARTICLE 53
The original of the
present Convention, of which the Chinese, English, French, Russian and Spanish
texts are equally authentic, shall
be deposited with the Secretary-General of
the United Nations, who shall send certified copies thereof to all States
belonging to
any of the four categories mentioned in Article
48.
IN WITNESS WHEREOF the
undersigned Plenipotentiaries, being duly authorised thereto by their respective
Governments, have signed the
present
Convention.
DONE AT VIENNA, this
eighteenth 18th day of April, 1961 one thousand nine hundred and
sixty-one.
(Signatures not
reproduced).
______________
SECOND SCHEDULE
PRIVILEGES AND IMMUNITIES OF INTERNATIONAL ORGANISATIONS
1. Immunity from suit and
legal process.
2. The like
inviolability of official premises and archives as is accorded in respect of the
official premises and archives of a diplomatic
mission.
3. Immunity in relation
to its property and assets, wherever located and by whomsoever held, from
search, requisition, confiscation,
expropriation, or any other form of
interference.
4. The like
exemption from taxes and rates, other than taxes on the importation of goods, as
is accorded to the Government of any
foreign
State.
5. Exemption from taxes on
the importation of goods directly imported by the organisation for its official
use in Fiji or for exportation,
or on the importation of any publications of the
organisation directly imported by it, subject to compliance with such conditions
as the Minister responsible for finance may determine for the protection of the
revenue.
6. Exemption from
prohibitions and restrictions on importation or exportation in the case of goods
directly imported or exported by
the organisation for its official use and in
the case of any publications of the organisation directly imported or exported
by it,
subject to compliance with such conditions as the Minister responsible
for finance may determine for the protection of the public
health, the
prevention of diseases in plants and animals, and otherwise in the public
interest.
7. The right to avail
itself, for telegraphic communications sent by it and containing only matter
intended for publication by the
press or for broadcasting (including
communications addressed to or despatched from places outside Fiji), of any
reduced rates applicable
for the corresponding service in the case of press
telegrams.
__________________--
THIRD SCHEDULE
PRIVILEGES AND IMMUNITIES OF REPRESENTATIVES, MEMBERS OF COMMITTEES, HIGH OFFICERS, AND PERSONS ON MISSIONS
1. The like immunity from
suit and legal process as is accorded to a diplomatic
agent.
2. The like inviolability
of residence, official premises, and official archives as is accorded to a
diplomatic agent.
3. The like
exemption from taxes and rates as is accorded to a diplomatic
agent.
_______________________
FOURTH SCHEDULE
PRIVILEGES AND IMMUNITIES OF OTHER OFFICERS AND SERVANTS
1. Immunity from suit and
legal process in respect of things done or omitted to be done in the course of
the performance of official
duties.
2. Exemption from taxes in
respect of emoluments received as an officer or servant of the
organisation.
3. Exemption from
taxes on the importation of furniture and effects imported at the time of first
taking up post in Fiji, that exemption
to be subject to compliance with such
conditions as the Minister responsible for finance may determine for the
protection of the
revenue.
____________________
FIFTH SCHEDULE
PRIVILEGES AND IMMUNITIES OF OFFICIAL STAFFS AND OF HIGH OFFICERS' FAMILIES
1. Where any person is
accorded any such immunities and privileges as are mentioned in the Third
Schedule to this Act as the representative
on any organ of the organisation or a
member of any committee of the organisation or of an organ thereof, the members
of his official
staff accompanying him as such a representative or member shall
also be accorded those immunities and privileges to the same extent
as the
members of the staff of a mission are accorded the immunities and privileges
accorded to a diplomatic agent.
2.
Where any person is accorded any such privileges and immunities as are mentioned
in the Third Schedule to this Act as an officer
of the organisation, the members
of the family of that person who form part of his household shall also be
accorded those privileges
and immunities to the same extent as the members of
the family of a diplomatic agent who form part of his household are accorded
the
privileges and immunities accorded to that diplomatic agent.
________________________
SIXTH SCHEDULE
INTERNATIONAL ORGANISATIONS
(Amended
by Notices 10th July 1972, 15th March
1973
and 16th
December 1976)
The United
Nations.
The International Labour
Organization.
The Food and Agriculture
Organization of the United
Nations.
The United Nations
Educational, Scientific and Cultural
Organization.
The International Civil
Aviation Organization.
The World
Health Organization.
The International
Telecommunications Union.
The World
Meteorological Organization.
The
International Atomic Energy
Agency.
The Universal Postal
Union.
The United Nations Industrial
Development Organization.
The United
Nations Conference on Trade and
Development.
The Inter-Governmental
Maritime Consultative
Organization.
The International
Monetary Fund.
The International Bank
for Reconstruction and
Development.
The International Refugee
Organization.
The International
Finance Corporation.
The Asian
Development Bank.
The Commonwealth
Secretariat.
The International Court
of Justice.
The South Pacific
Commission.
The United Nations Office
of Technical Co-operation.
The United
Nations Development Programme.
The
International Development
Association.
The Commission of the
European Communities.
The South
Pacific Board for Educational Assessment.
____________________
SEVENTH
SCHEDULE
(Section 7(1))
IMMUNITIES AND PRIVILEGES
1. Immunity from suit and
legal process in respect of words spoken or written and all acts performed in
his official capacity.
2.
Exemption from taxation on all stipend, emoluments and allowances paid to him by
the international organization.
_________________
EIGHTH
SCHEDULE
(Section (1))
PRIVILEGES
AND IMMUNITIES OF PERSON REFERRED
TO
IN SECTION 8 AND
HIS FAMILY
(Inserted
by 52 of 1971,
s.3
and amended by
13 of 1977, s..)
1. Exemption from taxation
on all stipends, emoluments and allowances paid to such person in connection
with his duties in Fiji.
2.
Exemption from taxes on the importation of professional and technical equipment
used by such person in connection with his duties
in Fiji and on the importation
of furniture and effects, including one motor vehicle, of such person and his
family imported within
six months from the time of first taking up post in Fiji,
that exemption to be subject to compliance with such conditions as the
Minister
responsible for finance may determine for the protection of the
revenue.
Controlled by Office of the Prime Minister
CHAPTER
8
DIPLOMATIC
PRIVILEGES AND IMMUNITIES
SECTION
6-DIPLOMATIC PRIVILEGES
(INTERNATIONAL
ORGANISATIONS)
ORDERS
Orders*
10th My 1972, 15th March 1973, 16th
December
1976,
23rd February 1979, 18th December 1981
(Made by the Minister for Foreign Affairs)
In exercise of the powers
conferred by section 6 of the Diplomatic Privileges and Immunities Act, the
Minister for Foreign Affairs has declared the following organisations to be
organisations of which two or more states or Governments
thereof are members and
that such organisations shall have the privileges and immunities specified in
the Second Schedule to that
Act and shall also have the legal capacity of a body
corporate:
United Nations
Organization
International Labour
Organization
Food and Agriculture
Organization of the United
Nations
United Nations Educational,
Scientific and Cultural
Organization
International Civil
Aviation Organization
World Health
Organization
International
Telecommunications Union
World
Meteorological
Organization
International Atomic
Energy Agency
Universal Postal
Union
United Nations Industrial
Development Organization
United
Nations Conference on Trade and
Development
Inter-Governmental
Maritime Consultative
Organization
International Monetary
Fund
International Bank for
Reconstruction and
Development
International Refugee
Organization
International Finance
Corporation
Asian Development
Bank
Commonwealth
Secretariat
International Court of
Justice
South Pacific
Commission
United Nations Office of
Technical Co-operation
United Nations
Development Programme
International
Development Association
The Commission
of the European Communities
The South
Pacific Board for Educational
Assessment.
*
See Legal Notices Nos. 54 of 1972, 28 of 1973, 182 of 1976, 53 of 1979, 3 of
1982
____________________
SECTION 12- EXEMPTION FROM LEVY
tNotice 21st January 1974
(Made by the Minister for Foreign Affairs)
The Government of the
Solomon Islands has been exempted from the levy under the Fiji National Training
Levy Order in respect of the
Western Pacific Archives.
Controlled by Office of the Prime Minister
tSee
Legal Notice No. 21 of 1974.
-------------------------------------------------
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