Talmon, Stefan

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The Thai King in Germany: The Statusof Foreign Heads of State on PrivateVisitsStefan Talmon 2023-03-14T10:00:06Published: 14. March 2023 Author: Stefan TalmonThe King of Thailand Maha Vajiralongkorn frequently stayed in Germany for longerperiods of time – making the country his second home. He owned a lakeside villa inthe town of Tutzing in Bavaria. As he was not on an official State visit to Germanyand also was not in the country at the invitation of the Federal Government, thesewere purely private stays. When in early 2000 mass pro-democracy protestsbroke out in Thailand, the king was living in Germany. While the protests were firstdirected at the government, they later also included demands for reform of the Thaimonarchy. This triggered questions whether the king was actually ruling his countryfrom Germany and whether he was allowed to do so under international law. Theking left Germany for Thailand on 19 October 2020, but the prospect of him returningin due course triggered further questions about his status under international lawwhile residing in Germany in his private capacity. The Thai king returned to Germanyon 8 November 2021.The first question the Federal Government faced was whether it could preventthe Thai king from returning to Germany. Like other States, Germany facilitatedthe entry, departure and transit of foreign heads of State by exempting them fromimmigration, customs and quarantine procedures as well as aviation securitycontrols. In response to a parliamentary question, the Secretary of State at theFederal Foreign Office Antje Leendertse stated:The Federal Government is of the opinion that section 1 paragraph 2number 2 of the Residence Act is relevant here and that there is thereforeno visa requirement for stays of any kind by foreign heads of State inGermany.This follows from the fact that section 20 paragraph 2 of the CourtsConstitution Act (GVG) is a general catch-all provision for all those casesthat do not explicitly fall under sections 18 [diplomatic agents], 19 [consularagents] and 20 paragraph 1 GVG [official visitors] and thus also for thespecial case of a purely private stay of a head of State. …However, due to its territorial sovereignty, Germany is free to accept thestay of a foreign head of State or to end this acceptance.Foreign heads of State thus do not have a right to enter or stay in Germany withoutthe consent, implied or otherwise, of the Federal Government. It would have been- 1 -open to the Federal Government to deny entry to the Thai king for political reasons,for example, in order to avoid the embarrassment of hosting a leader facing masspro-democracy protests and demonstrations in his own country. Such denial of entryis usually conveyed in advance by diplomatic channels to save the foreign head ofState the discomfiture of being turned away at the border. A foreign head of State,however, can also be formally declared persona non grata. The latter, however, willusually put a serious strain on bilateral relations.The second question raised was whether the Thai king was liable to pay varioustaxes in Germany. The king lived in Germany when his father, the late KingBhumibol Adulyade, died in 2016 and reportedly left him a fortune of an estimated10 billion euros. Under German law, as a resident, the king was subject to a 30per cent inheritance tax, meaning the king owed the German treasury nearly 3billion euros. As a property owner in the municipality of Tutzing, the king was alsosubject to second home tax and council tax. However, no taxes were paid, andno tax statements were issued. As shown by the statement of Secretary of StateLeendertse, the Federal Government considered the Thai king to fall under section 1paragraph 2 number 2 of the Residence Act. Section 1 provides:(1)   This Act serves to manage and limit the influx of foreigners into theFederal Republic of Germany. It enables and organises immigrationwith due regard to the capacities for admission and integration and theinterests of the Federal Republic of Germany in terms of its economy andlabour market. At the same time, the Act also serves to fulfil Germany’shumanitarian obligations. To this end, it regulates the entry, residence,economic activity and integration of foreigners. The provisions contained inother acts remain unaffected.(2)   This Act does not apply to foreigners …1. who are not subject to German jurisdiction according to the provisionsof sections 18 to 20 of the Courts Constitution Act (GVG).Section 20 paragraph 2 of the Courts Constitution Act provides that ‘Germanjurisdiction also shall not apply to persons … insofar as they are exempt therefrompursuant to the general rules of international law’. The Federal Government thustook the view that the Thai king was exempt from German jurisdiction under rules ofcustomary international law even when staying in the country privately. This is in linewith the relevant circular note of the Federal Foreign Office which provides:Heads of State, heads of government and members of the governmentof other states and their entourage who are in Germany at the officialinvitation of the Federal Republic of Germany enjoy immunity from Germanjurisdiction.This follows from section 20 paragraph 1 GVG, according to which Germanjurisdiction does not extend to representatives of other states. Section20 paragraph 2 GVG clarifies that German jurisdiction does not extendto persons other than those named in section 20 paragraph 1 and in- 2 -sections 18 and 19 (members of diplomatic and consular missions orrepresentations), insofar as they are exempted from it on the basis ofgeneral rules of international law, international agreements or other legalprovisions. According to the general rules of international law, foreignheads of State are exempt from German jurisdiction even if they are not inthe Federal Republic by official invitation. Unlike in international criminaljurisdiction (cf., e.g., Article 27 of the Rome Statute of the InternationalCriminal Court), customary international law does not recognise anyexceptions to immunity from national criminal jurisdiction even in case ofgrave crimes under international criminal law.The entourage of representatives of other States include, for example,accompanying family members, advisers, interpreters, members of thepress and other personal advisers as set out in the delegation list providedby the sending State. Family members of representatives of other Statesare exempt from jurisdiction only if they are in the country by officialinvitation and in their capacity as members of a visiting delegation. Theexemption does not apply in case of stays or other purposes (e.g. stays fortourism or study).According to general customary international law … heads of State,heads of government and cabinet members are also ‘inviolable’, sothat no sovereign coercive measures may be taken against them. As aconsequence, this group of persons may not be subjected to aviationsecurity controls, which EU member States may impose under the relevantEU regulations to be observed in this area.As inheritance tax is within the competence of the federal states in Germany, theBavarian state government was asked in a parliamentary question about the taxstatus of the King of Thailand. The state government replied:The King of Thailand enjoys immunity as head of State. According tocustomary international law, heads of State and foreign ministers havecomprehensive immunity for official and private acts (ratione personae)during their term of office. The legal basis is to ensure the exercise of theirfunction. The Vienna Convention of 18 April 1961 on Diplomatic Relations isnot applicable in this case.This was also confirmed by the Munich public prosecutor’s office. When a criminalcomplaint was filed against the mayor of the town of Tutzing for not enforcing thesecond home tax law against the Thai king, the public prosecutor declined to openan investigation against the mayor for lack of reasonable suspicion of an offenceon the mayor’s part because as foreign head of State the King of Thailand enjoyedimmunity.There have been voices in the literature advocating a more limited immunity ofheads of State when on private visits abroad – especially with regard to their privateacts. The Institute of International Law in its 2001 resolution on ‘Immunities fromJurisdiction and Execution of Heads of State and of Government in International- 3 -Law’ also took the position that  in ‘civil and administrative matters, the Head ofState does not enjoy any immunity from jurisdiction before the courts of a foreignState, unless that suit relates to acts performed in the exercise of his or her officialfunctions…. Nonetheless, nothing shall be done by way of court proceedings withregard to the Head of State while he or she is in the territory of that State, in theexercise of official functions.’Germany, on the other hand, still adheres to the traditional customary internationallaw position of absolute personal immunity of heads of State from criminal, civiland administrative jurisdiction even when on a private visits abroad. The immunityof heads of State thus extends further than diplomatic immunity. In addition, theperson of a head of State is inviolable at all times. The head of State personifies thesovereign State. He or she is recognised under international law as representativeof the State solely by virtue of the office. Any act of authority taken by another Stateagainst the head of State would be inconsistent with the sovereign equality anddignity of his or her State. These considerations apply irrespective of whether thehead of State is on an official visit or a private visit. Germany’s position is in line withthat of the International Court of Justice (ICJ) which determined in the Arrest Warrantcase that a head of State ‘enjoy[s] immunities from jurisdiction in other States, bothcivil and criminal’, and that ‘the functions of a head of State are such that, throughoutthe duration of his or her office, he or she when abroad enjoys full immunity fromcriminal jurisdiction and inviolability. That immunity and that inviolability protectthe individual concerned against any act of authority of another State.’ The ICJ didnot distinguish between official visits and private visits. Foreign heads of State arethus fully shielded from any act of public authority while staying in Germany. No taxstatements, court summons or fines could be issued against the Thai king. He wasalso protected against communication surveillance in order to monitor his actions inGermany and  restrictive measures taken during the coronavirus pandemic.While Germany accords full personal immunity to heads of State it takes a morerestrictive approach with regard to their family members. The entourage of the Thaiking accompanying him during his stay in Germany thus did not enjoy any privilegesand immunities. Other States have been more generous in this respect, grantingimmunity to family members of heads of State even when travelling on their own ina private capacity. The immunity of family members, however, seems to be basedmore on comity than established rules of customary international law. In any case,Germany was under an obligation to give special protection  from any attack on theperson, freedom or dignity not just to the Thai king but also to his family members.The Convention on the Prevention and Punishment of Crimes Against InternationallyProtected Persons defines ‘internationally protected person’ as ‘head of State …whenever any such person is in a foreign State, as well as members of his familywho accompany him’. The use of the term ‘whenever’ indicates that such specialprotection is due also on private visits. Category: Territorial sovereignty- 4 -<intR>²Dok-Lizenz: Eine Nachnutzung dieses Beitrags ist im Rahmen des Gesetzesüber Urheberrecht und verwandte Schutzrechte (https://www.gesetze-im-internet.de/urhg/) möglich.- 5 -

The Thai King in Germany: The Status of Foreign Heads of State on Private Visits

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The Thai King in Germany: The Status of Foreign Heads of State on Private Visits

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