Somali Diplomat Case

CourtSuperior Administrative Court (Germany)
Federal Republic of Germany, Superior Administrative Court (OVG) of North Rhine-Westphalia

(Deibel, Stehr and Deiseroth, Judges)

Somali Diplomat Case

Diplomatic relations Diplomats Position and functions Failure of sending State to pay salaries of its diplomats Diplomats unable to support themselves and claiming social security in receiving State Whether dependence of diplomats on social security in receiving State compromising independent performance of diplomatic functions Whether payment of social security by receiving State in such circumstances violating Vienna Convention on Diplomatic Relations, 1961, or rules of customary international law Means available to receiving State for obtaining recall of diplomats by sending State in such circumstances Vienna Convention on Diplomatic Relations, Article 9

Diplomatic relations Diplomats Position and functions Position of diplomats during civil war in sending State Lack of effective government in sending State Non-payment of salaries of diplomats Whether diplomats required to renounce diplomatic status

Diplomatic relations Immunity Exemption from social security provisions in receiving State Scope of exemption Vienna Convention on Diplomatic Relations, 1961, Article 33 Whether excluding right to claim social security in receiving State Whether diplomat required to renounce diplomatic status prior to claiming social security

Treaties Interpretation Ordinary meaning Vienna Convention on the Law of Treaties, 1969 Article 31(1) Multilateral treaties Authority of different texts Article 33(1) of Convention Whether permissible to use text in which the Treaty is not authentic The law of the Federal Republic of Germany

Summary: The facts:Since 1990 the applicant had been the third secretary of the Embassy of Somalia in Bonn, where she lived with her husband and two children. She held a diplomatic identity card, issued by the Federal Republic of Germany and valid until the end of 1993. In January 1992 she applied for social security assistance on the ground that Somalia had stopped salary payments to its diplomats and she and her family had now exhausted their resources. The need of the applicant and her family was not disputed and the Federal German Foreign Ministry certified that the Embassy of Somalia was no longer receiving transfers of funds owing to the condition of anarchy in that country. The Foreign Ministry itself had no funds at its disposal to help diplomats in need.

The Chief Administrative Officer of the City of Bonn rejected the application on the ground that foreign diplomats had no claim to social security benefits in the Federal Republic. The Administrative Officer was prepared to review the position if the applicant renounced her diplomatic status. The applicant obtained an interim injunction from the Administrative Court ordering the Officer to grant the assistance sought. The Administrative Officer appealed to the Superior Administrative Court of North Rhine-Westphalia.

Held:The appeal was dismissed. Neither Federal law nor international law excluded diplomats and their families from claiming social security payments.

(1) Where a multilateral treaty such as the Vienna Convention on Diplomatic Relations required interpretation, Article 33(1) of the Vienna Convention on the Law of Treaties enshrined the rule of customary international law that the text was equally authoritative in each of its authentic languages. The Vienna Convention on Diplomatic Relations was not authentic in German. The German text was not, therefore, binding but it could provide a basis for examination, especially bearing in mind that no differences in meaning as compared with the authentic texts had been raised by the parties (p. 603).

(2) Article 33(1) of the Vienna Convention on Diplomatic Relations provided that diplomatic agents should be exempt from social security provisions in force in the receiving State with respect to services rendered for the sending State. According to its ordinary meaning, the term exempt indicated exemption from duties or obligations and not exclusion from rights, claims or privileges. Furthermore, the exemption from social security provisions contained in Article 33(1) of the Vienna Convention on Diplomatic Relations only covered services rendered for the sending State and did not deal with possible claims available to diplomats, under the legislation of the receiving State, which were entirely unconnected with their employment relationship (pp. 6034).

(3) Article 33(3) of the Vienna Convention on Diplomatic Relations made it clear that diplomatic agents were required to observe the obligations which the social security provisions of the receiving State imposed upon employers. Article 31(1) was an exception to this rule. It could not be concluded from these provisions that the receiving State was forbidden, even in emergencies, to make available social security assistance if requested (p. 604).

(4) The permanent provision of funds by the authorities of the receiving State for the maintenance of members of the personnel of a diplomatic mission could interfere with the effective and independent representation of the interests of the sending State in the receiving State. For this reason the sending State should, in principle, alone be responsible for the social security of its personnel (pp. 6045).

(5) Nevertheless, where the sending State failed to fulfil its obligations to provide an adequate livelihood for its diplomats, so that they were in urgent distress, there was nothing in the Vienna Convention or the rules of customary international law to prevent the receiving State from taking measures to provide assistance. If the receiving State considered that such assistance prevented a diplomat from properly fulfilling diplomatic functions, it was open to the receiving State to seek the recall of the person concerned. A grant of social security could not, however, be made dependent upon the applicant renouncing diplomatic status. It was therefore unnecessary to decide whether or not the applicant would be legally able to voluntarily renounce her diplomatic status (pp. 6056).

The following is the text of the relevant parts of the judgment of the Court:

operative part of the judgment

1. The applicants shall be granted legal aid for the proceedings in the interlocutory appeal

2. The interlocutory appeal [of the opponent Administrative Officer] is dismissed.

3. The opponent shall bear the costs of the interlocutory appeal

Grounds of the judgment
I.

The first applicant has been a member of the diplomatic staff (third secretary) of the Embassy of Somalia in the Federal Republic of Germany since 1990. She holds a red diplomatic identity card issued by the Federal Foreign Office which is valid until 30 December 1993. She lives together with her husband, the second applicant, as well as her two sons, the third applicant born in 1978 and...

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