Diplomatic law: Service of process on foreign defendants

December 1st, 2017
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By Riaan de Jager

Members of the public or businesses often transact with diplomatic missions (ie, embassies or high commissions), consular posts (eg, consulate-general, consulates, consular agencies, trade offices, etcetera) or representative offices of international organisations (eg, the United Nations (UN), the International Labour Organisation, the African Union, etcetera) in South Africa (SA) by leasing properties to them or by rendering one or other service. It is inevitable that disputes will invariably arise between the parties which, if not resolved amicably, could result in litigation. If this happens, an attorney will be instructed to institute legal proceedings against the foreign mission for the dispute to be adjudicated. Based on queries, which the Office of the Chief State Law Adviser (International Law), attached to the Department of International Relations and Cooperation (DIRCO), often receives from attorneys, there is not always clarity regarding the manner in which service of process should be effected on the particular ‘foreign’ defendant.

The purpose of this article is to clarify this seldom-used part of diplomatic law. In doing so, a distinction should be made between instances where a foreign state, represented by a diplomatic or consular mission, is the defendant and those occasions where an international organisation is the opposing party.

Foreign states

Even though the plaintiff may have interacted or dealt with a particular foreign mission and would want to issue summons against that mission, it is settled international law that a mission has no legal personality separate and independent from the sending state and merely acts as the representative of the sending state (see E Denza Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations 4ed (Oxford University Press 2016) at 235). Accordingly, it would not be advisable to cite that mission (ie, the Embassy of X or the Consulate-General of Y) as the defendant in proceedings but rather the actual sending state (ie, the Republic of X or the Kingdom of Y).

The Sheriff sometimes attempts to serve process directly on a diplomatic mission in Tshwane or on a consular post elsewhere in SA. One of the reasons for this measure seems to be that a diplomatic mission or consular post is mistakenly regarded as part of the territory of the sending state (ie, that the British High Commission is part of the United Kingdom). This belief is fiction, since the mission premises is not an extension of the sending state but instead inviolable (see J Dugard International Law: A South African Perspective 3ed (Cape Town: Juta 2006) at 262 to 263; I Roberts (ed)  Satow’s Diplomatic Practice 6ed (Oxford Univeristy Press 2011) at 107; and Santos v Santos 1987 (4) SA 150 (W) at 152C-H).

Inviolability in modern international law is a status accorded to premises, persons or property physically present in the territory of the receiving state, albeit not subject to its jurisdiction in an ordinary way. The receiving state is under a duty to abstain from exercising any enforcement rights in respect of inviolable premises, persons or property and under a positive duty to protect inviolable premises, persons or property from physical invasion or interference with their functioning and from impairment of their dignity. These principles are specifically addressed in art 22(1) of the Vienna Convention on Diplomatic Relations of 1961 (Diplomatic Convention) and art 31(1) of the Vienna Convention on Consular Relations of 1963 (Consular Convention), the provisions of which have the force of law in SA pursuant to s 2(1) of the Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA). The South African government, as the receiving state, is thus obliged to prevent its officials and agents from entering or performing any official act within the mission premises and personal service of process, whether it occurs within the premises of the mission or at the door, is prohibited (see Denza (op cit) at 110 and 124 to 125 and Roberts (ed) (op cit) at 102) and, where it has occurred, such service will arguably be defective and invalid.

It will not be possible to circumvent the mission premises’ inviolability by attempting to serve process on the diplomatic representatives of the sending state. Accredited diplomatic agents, unlike consular officers, enjoy personal inviolability in terms of art 29 of the Diplomatic Convention, while their private residences enjoy the same inviolability and protection as the premises of the mission pursuant to art 30(1) thereof. It will thus be unwise for any person, whether as a party to the proceedings, that party’s attorney or the Sheriff, to issue, obtain or execute any legal process against diplomatic agents personally or at their private residences, since such person, attorney or Sheriff will then be prima facie guilty of an offence (s 15(1) of DIPA). It will furthermore not be possible in terms of international law to serve process on consular officers, at any location, based on their capacity as agents of the sending state (see LT Lee and J Quigley Consular Law and Practice 3ed (Oxford University Press) at 387; and Holden v Commonwealth of Australia 369 F. Supp. 1258 (US District Court, ND Cal. 1974)).

Section 13(1) of the Foreign States Immunities Act 87 of 1981 (FSIA) regulates the service of process on foreign states. The relevant process of court or document to be served, together with a sworn translation thereof into an official language of the defendant state (see r 4(5)(a) of the Uniform Rules of Court), should thus be delivered to the Chief Directorate: Consular Services of DIRCO, whereafter the documents will be dispatched by diplomatic bag to the relevant South African diplomatic mission in the defendant state concerned. Once received at the mission, the process documents will be delivered at and served on the Ministry of Foreign Affairs of the defendant state under cover of a diplomatic note or note verbale. In order to prove that service of process has been effected, the mission will dispatch a return of service to the Chief Directorate: Consular Services at DIRCO’s Head Office, which will subsequently be made available to the relevant attorney.

Service of process on the defendant state could in terms of s 13(7) of FSIA, read with r 5(1) of the Uniform Rules of Court, also be effected on a foreign state by way of edictal citation (see Government of the Republic of Zimbabwe v Fick and Others 2013 (10) BCLR 1103 (CC) at para 24).

International organisations

An ‘international organisation’ is defined as an organisation established by treaty, governed by international law, possessing its own legal personality and with its membership largely composed of states. Where only states are members, it is also known as an ‘intergovernmental’ organisation. The most important element is the possession of international legal personality – once established, that international organisation becomes a subject of international law and thus capable of enforcing rights and duties in the international plane, as distinct from operating merely within the confines of separate municipal jurisdictions (A Aust Modern Treaty Law and Practice (Cambridge University Press 2000) at 54; MN Shaw International law 5ed (Cambridge University Press 2003) at 1187 and I Brownlie Principles of Public International Law 6ed (Oxford University Press 2003) at ch 31). Unlike the UN, international organisations could have restricted membership established primarily on the basis of geographical criteria (eg, the European Union and the African Union) or may have competence in particular fields (eg, the World Trade Organisation, which is mainly responsible for the promotion of international trade and economic development).

Section 5 of DIPA determines that the 1946 Convention on the Privileges and Immunities of the United Nations (UN Convention) and the 1947 Convention on the Privileges and Immunities of the Specialised Agencies (Specialised Agencies Convention) apply in SA. These Conventions also provide that any organisation recognised by the Minister of International Relations and Cooperation and any official of such organisation enjoy such privileges and immunities as may be provided for in any agreement entered into with such organisation. The agreement referred to in s 5 is usually known as a ‘host agreement’.

The scale of privileges and immunities set out in the UN Convention was used as a model for other international organisations having worldwide membership and responsibilities. For the most part, the UN scale was treated as a ceiling and minor reductions in privileges and immunities were negotiated in the case of other organisations, as it was accepted that few other international organisations had to carry out tasks of such political sensitivity or physical danger as the UN itself and that, on a basis of functional need, they could not lay claim to the same level of immunity.

The UN Convention provides specifically that the premises of the UN shall be inviolable (see art II, s 3) and that the UN enjoys immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity (see art II, s 2). The Specialised Agencies Convention contains similar provisions in this respect (see art III, s 5 and art III, s 4). The inviolability of the regional offices of other international organisations with representative offices in SA will be governed by the individual host agreements and attorneys could consider approaching the South African Treaty Section, attached to the Office of the Chief State Law Adviser (International Law) at DIRCO, to obtain a copy of the relevant host agreement in order to advise their clients appropriately. Alternatively, the information can be obtained from the DIRCO website at www.dirco.gov.za.

Since international organisations are not ‘foreign states’ for purposes of FSIA, that piece of legislation will not be applicable. The question arises now whether service of process could be effected on an international organisation and, if so, how?

It appears from international practice that the extension of the immunity to ‘every form of legal process’ is absolute and includes service of process (see Askir v Boutros-Ghali, 933 F. Supp. 368, 369 (S.D.N.Y. 1996) where service of process on the UN was considered). Therefore, unless immunity from suit is affirmatively waived in a particular case, international organisations are absolutely immune and service of process cannot be effected on them, either on their representative offices in SA or on their respective head offices abroad.

Conclusion

In order to avoid a challenge on technical grounds and to prevent criminal charges being laid against an attorney or Sheriff for a breach of inviolability, service of process on foreign states could be effected either in terms of s 13(1) of FSIA or by way of edictal citation in terms of r 5(1) of the Uniform Rules of Court. Effecting service of process on international organisations, however, appears to not be possible unless their inviolability is expressly waived. It is evident that doing business with international organisations has inherent risks as contracts cannot be enforced in the domestic courts, something which members of the public are not always aware of.

Riaan de Jager BLC LLB LLM (UP) Advanced Diploma (Labour Law) (RAU) is a Principal State Law Adviser (International Law), attached to the Office of the Chief State Law Adviser (International Law) and the Department of International Relations and Cooperation in Pretoria.

This article was first published in De Rebus in 2017 (Dec) DR 34.

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