|
|
|
 |
 |
 |
 |
|
 |
 |
|
|
LAWS OF FIJI
BACK SPECIAL MISSIONS Act No. 16 of 1972 TO GIVE EFFECT TO THE CONVENTION ON SPECIAL MISSIONS [8th December, 1972] 1. This Act may be cited as the Special Missions Privileges and ImmunitiesAct. 2.—(1) In this Act, unless the context otherwise requires— "Convention" means the Convention on Special Missions signed in 1969, a copy of the English text of which is set out in the Schedule; "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. 3.—(1) Subject to the provisions of subsection (6), the provisions of Articles 1, 24, 25, 26, 28, 29, 30, 31,32, 33, 34, 35, 37, 38, 41 and 43 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, fiscal privileges which shall be accorded to any special mission or persons connected with any special 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 the 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 special mission of that State and persons connected with that special mission shall be accorded such immunity from jurisdiction and inviolability as are specified in the order: Provided that nothing in this subsection 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 under this Act, immunity from jurisdiction is accorded to persons who are not diplomatic agents or persons enjoying immunity under Article 39 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 41 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 (D- (a) a reference in those provisions to the receiving State shall be construed as a reference to Fiji; (b) a reference in those provisions to a national of the receiving State shall be construed as a reference to a Fiji citizen; (c) the reference in paragraph I of Article 25 to agents of the receiving State shall be construed as including a reference to any police officer or any person exercising a power of entry to premises; (d) the reference in Article 41 to waiver by the sending State shall be construed as including a waiver by the head of the special mission of the sending State or by a person for the time being performing the functions of the head of special mission; (e) Articles 34, 35 and 42 shall be construed as granting the privileges or immunities that those Articles require to be granted; (f) the reference in paragraph I of Article 35 to such laws and regulations as the receiving State may adopt shall 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 39 to the extent to which privileges and immunities are admitted by the receiving State, and the reference in paragraph I of Article 40 to any additional privileges and immunities that may be granted by the receiving State, shall, so far as they relate to privileges, 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 40 to the extent to which privileges and immunities are admitted by the receiving State snail, 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, 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). 4. The members of the administrative and technical staff, and members of the service staff, of a special 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. 5. Where the Minister is satisfied that the privileges and immunities accorded in relation to a special mission of Fiji in any State, or to any person connected with that special mission, are less than those conferred by or under this Act in relation to the special mission of that State, or to persons connected with that special mission, he may, by order, withdraw, modify, or restrict in relation to that special mission or to persons connected with that special mission, such of the privileges and immunities so conferred to such extent as appears to him to be proper. 6. 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. 7.—(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 by or under this Act. (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 the Minister to reimburse that loss. 8. If in any proceedings any question arises whether or not any person 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. 9. This Act shall not affect any legal proceedings begun before the commencement of this Act. 10. 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. CONVENTION ON SPECIAL MISSIONS RECALLING that special treatment has always been accorded to special missions. 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 development of friendly relations and co- operation among States. RECALLING that the importance of the question of special missions was recognized during the United Nations Conference on Diplomatic Intercourse and Immunities and in resolution I adopted by the Conference on 10 April, 1961. CONSIDERING that the United Nations Conference on Diplomatic Intercourse and Immunities adopted the Vienna Convention on Diplomatic Relations, which was opened for signature on 18 April, 1961. CONSIDERING that the United Nations Conference on Consular Relations adopted the Vienna Convention on consular relations, which was opened for signature on 24 April, 1963. BELIEVING that an international convention on special missions would complement those two Conventions and would contribute to the development of friendly relations among nations, whatever their constitutional and social systems. REALIZING that the purpose of privileges and immunities relating to special missions is not to benefit individuals but to ensure the efficient performance of the functions of special missions as missions representing the State. AFFIRMING that the rules of customary international law continue to govern questions not regulated by the provisions of the present Convention. HAVE AGREED as follows:— Use of terms (a) a "special mission" is a temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task; (b) a "permanent diplomatic mission" is a diplomatic mission within the meaning of the Vienna Convention on Diplomatic Relations; (c) a "consular post" is any consulate-general, consulate, vice-consulate or consular agency; (d) the "head of a special mission" is the person charged by the sending State with the duty of acting in that capacity; (e) a "representative of the sending State in the special mission" is any person on whom the sending State has conferred that capacity; (f) the "members of a special mission" are the head of the special mission, the representatives of the sending State in the special mission and the members of the staff of the special mission; (g) the "members of the staff of the special mission" are the members of the diplomatic staff, the administrative and technical staff and the service staff of the special mission; (h) the "members of the diplomatic staff" are the members of the staff of the special mission who have diplomatic status for the purposes of the special mission; d) the "members of the administrative and technical staff" are the members of the staff of the special mission employed in the administrative and technical service of the special mission; (j) the "members of the service staff" are the members of the staff of the special mission employed by it as household workers or for similar tasks; (k) the "private staff" are persons employed exclusively in the private service of the members of the special mission. Sending of a special mission Functions of a special mission Sending of the same special mission to two or more States A State which wishes to send the same special mission to two or more States shall so inform each receiving State when seeking the consent of that State. Sending of a joint special mission by two or more States Sending of special missions by two or more States in order to deal with a question of common interest Non-existence of diplomatic or consular relations Appointment of the members of the special mission Composition of the special mission 2. When members of a permanent diplomatic mission or of a consular post in the receiving State are included in a special mission, they shall retain their privileges and immunities as members of their permanent diplomatic mission or consular post in addition to the privileges and immunities accorded by the present Convention. Nationality of the members of the special mission 2. Nationals of the receiving State may not be appointed to a special mission except with the consent of that State, which may be withdrawn at any time. 3. The receiving State may reserve the right provided for in paragraph 2 of this article with regard to nationals of a third State who are not also nationals of the sending State. Notifications (a) the composition of the special mission and any subsequent changes therein; (b) the arrival and final departure of members of the mission and the termination of their functions with the mission; (c) the arrival and final departure of any person accompanying a member of the mission; (d) the engagement and discharge of persons resident in the receiving State as members of the mission or as private staff; (e) the appointment of the head of the special mission or, if there is none, of the representative referred to in paragraph I of Article 14, and of any substitute for them; (f) the location of the premises occupied by the special mission and of the private accommodation enjoying inviolability under Articles 30, 36 and 39, as well as any other information that may be necessary to identify such premises and accommodation. 2. Unless it is impossible, notification of arrival and final departure must be given in advance. Persons declared non grata or not acceptable 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 recognize the person concerned as a member of the special mission. Commencement of the functions of a special mission 2. The commencement of the functions of a special mission shall not depend upon presentation of the mission by the permanent diplomatic mission of the sending State or upon the submission of letters of credence or full powers. Authority to act on behalf of the special mission 2. However, a member of the special mission may be authorized by the sending State, by the head of the special mission or, if there is none, by the representative referred to in paragraph I of this Article, either to substitute for the head of the special mission or for the aforesaid representative or to perform particular acts on behalf of the mission. Organ of the receiving State with which official business is conducted Rules concerning precedence 2. Precedence among two or more special missions which meet on a ceremonial or formal occasion shall be governed by the protocol in force in the receiving State. 3. Precedence among the members of the same special mission shall be that which is notified to the receiving State or to the third State in whose territory two or more special missions are meeting. Seat of the special mission 2. In the absence of agreement, the special mission shall have its seat in the locality where the Ministry of Foreign Affairs of the receiving State is situated. 3. If the special mission performs its functions in different localities, the States concerned may agree that it shall have more than one seat from among which they may choose one as the principal seat. Meeting of special missions in the territory of a third State 2. In giving its consent, the third State may lay down conditions which shall be observed by the sending States. 3. The third State shall assume in respect of the sending States the rights and obligations of a receiving State to the extent that it indicates in giving its consent. Right of the special mission to use the flag and emblem of the sending State 2. In the exercise of the right accorded by this Article, regard shall be had to the laws, regulations and usages of the receiving State. End of the functions of a special mission (a) the agreement of the States concerned; (b) the completion of the task of the special mission; (c) the expiry of the duration assigned for the special mission, unless it is expressly extended; (d) notification by the sending State that it is terminating or recalling the special mission; (e) notification by the receiving State that it considers the special mission terminated. 2. The severance of diplomatic or consular relations between the sending State and the receiving State shall not of itself have the effect of terminating special missions existing at the time of such severance. Status of the Head of State and persons of high rank 2. The Head of the Government, the Minister for Foreign Affairs and other persons of high rank, when they take part in a special mission of the sending State, shall enjoy in the receiving State or in a third State, in addition to what is granted by the present Convention, the facilities, privileges and immunities accorded by international law. General facilities Premises and accommodation Exemption of the premises of the special mission from taxation 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 with a member of the special mission. Inviolability of the premises 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the special 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 special mission, their furnishings, other property used in the operation of the special mission and its means of transport shall be immune from search, requisition, attachment or execution. Inviolability of archives and documents Freedom of movement Freedom of communication 2. The official correspondence of the special mission shall be inviolable. Official correspondence means all correspondence relating to the special mission and its functions. 3. Where practicable, the special mission shall use the means of communication, including the bag and the courier, of the permanent diplomatic mission of the sending State. 4. The bag of the special mission shall not be opened or detained. 5. The packages constituting the bag of the special mission must bear visible external marks of their character and may contain only documents or articles intended for the official use of the special mission. 6. The courier of the special mission, who shall be provided with an official document indicating his status and the number of packages constituting the 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. 7. The sending State or the special mission may designate couriers ad hoc of the special mission. In such cases the provisions of paragraph 6 of this Article shall also apply, except that the immunities therein mentioned shall cease to apply when the courier ad hoc has delivered to the consignee the special mission's bag in his charge. 8. The bag of the special mission may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land at an authorized port of entry. The captain shall be provided with an official document indicating the number of packages constituting the bag, but he shall not be considered to be a courier of the special mission. By arrangement with the appropriate authorities, the special mission may send one of its members to take possession of the bag directly and freely from the captain of the ship or of the aircraft. Personal inviolability Inviolability of the private accommodation 2. Their papers, their correspondence and, except as provided in paragraph 4 of Article 31, their property shall likewise enjoy inviolability. Immunity from jurisdiction 2. They shall also enjoy immunity from the civil and administrative jurisdiction of the receiving State, except in the case of— (a) a real action relating to private immovable property situated in the territory of the receiving State, unless the person concerned holds it on behalf of the sending State for the purposes of the mission; (b) an action relating to succession in which the person concerned 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 person concerned in the receiving State outside his official functions; (d) an action for damages arising out of an accident caused by a vehicle used outside the official functions of the person concerned. 3. The representatives of the sending State in the special mission and the members of its diplomatic staff are not obliged to give evidence as witnesses. 4. No measures of execution may be taken in respect of a representative of the sending State in the special mission or a member of its diplomatic staff except in the cases coming under sub-paragraphs (a), (b), (c) and (d) of paragraph 2 of this Article and provided that the measures concerned can be taken without infringing the inviolability of his person or his accommodation. 5. The immunity from jurisdiction of the representatives of the sending State in the special mission and of the members of its diplomatic staff does not exempt them from the jurisdiction of the sending State. Exemption from social security legislation 2. The exemption provided for in paragraph I of this Article shall also apply to persons who are in the sole private employ of a representative of the sending State in the special mission or of a member of its diplomatic staff, on condition— (a) that such employed persons 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. Representatives of the sending State in the special mission and members of its diplomatic staff who employ 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 where 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. Exemption from dues and taxes (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 the person concerned 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 Article 44; Private staff Members of the family 2. Members of the families of members of the administrative and technical staff of the special mission shall, if they accompany such members of the special mission, enjoy the privileges and immunities specified in Article 36 provided that they are not nationals of or permanently resident in the receiving State. Nationals of the receiving State and persons permanently resident in the receiving State 2. Other members of the special mission and private staff who are nationals of or permanently resident in the receiving State shall enjoy privileges and immunities only to the extent granted to them by that 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 special mission. Waiver of immunity 2. Waiver must always be express. 3. The initiation of proceedings by any of the persons referred to in paragraph I of this Article shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim 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 Transit through the territory of a third State 2. In circumstances similar to those specified in paragraph I of this Article, third States shall not hinder the transit of members of the administrative and technical or service staff of the special mission, or 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 the receiving State is bound to accord under the present Convention. Subject to the provisions of paragraph 4 of this Article, they shall accord to the couriers and bags of the special mission in transit the same inviolability and protection as the receiving State is bound to accord under the present Convention. 4. The third State shall be bound to comply with its obligations in respect of the persons mentioned in paragraphs 1, 2 and 3 of this Article only if it has been informed in advance, either in the visa application or by notification, of the transit of those persons as members of the special mission, members of their families or couriers, and has raised no objection to it. 5. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to the official communications and the bags of the special mission, when the use of the territory of the third State is due to force majeure. Duration of privileges and immunities 2. When the functions of a member of the special mission have come to an end, his privileges and immunities shall normally cease at the moment when he leaves the territory of the receiving State, or on the expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, in respect of acts performed by such a member in the exercise of his functions, immunity shall continue to subsist. 3. In the event of the death of a member of the special 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 territory of the receiving State. Transit through the territory of a third State 2. In circumstances similar to those specified in paragraph I of this Article, third States shall not hinder the transit of members of the administrative and technical or service staff of the special mission, or 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 the receiving State is bound to accord under the present Convention. Subject to the provisions of paragraph 4 of this Article, they shall accord to the couriers and bags of the special mission in transit the same inviolability and protection as the receiving State is bound to accord under the present Convention. 4. The third State shall be bound to comply with its obligations in respect of the persons mentioned in paragraphs 1, 2 and 3 of this Article only if it has been informed in advance, either in the visa application or by notification, of the transit of those persons as members of the special mission, members of their families or couriers, and has raised no objection to it. 5. The obligations of third States under paragraphs 1, 2 and 3 of this Article shall also apply to the persons mentioned respectively in those paragraphs, and to the official communications and the bags of the special mission, when the use of the territory of the third State is due to force majeure. Duration of privileges and immunities 2. When the functions of a member of the special mission have come to an end, his privileges and immunities shall normally cease at the moment when he leaves the territory of the receiving State, or on the expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, in respect of acts performed by such a member in the exercise of his functions, immunity shall continue to subsist. 3. In the event of the death of a member of the special 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 territory of the receiving State. Professional or commercial activity Non-discrimination 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 special mission in the sending State; (b) where States modify among themselves, by custom or agreement, the extent of facilities, privileges and immunities for their special missions, although such a modification has not been agreed with other States, provided that it is not incompatible with the object and purpose of the present Convention and does not affect the enjoyment of the rights or the performance of the obligations of third States. Signature Ratification Accession Entry into force 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. Notifications by the depositary (a) of signatures to the present Convention and of the deposit of instruments of ratification or accession in accordance with Articles 50, 51 and 52; (b) of the date on which the present Convention will enter into force in accordance with Article 53. Authentic texts IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed the present Convention, opened for signature at New York on 16th December, 1969. (Signatures not reproduced) Controlled by Office of the Prime Minister |
||||||
|
. |
|
. | ||||
 |
 |
 |
|
||||
