• Subject: International Law

• Teacher: Agha Shahriyar Khan (CSS 2019 Qualifier)

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• Lecture: 5
• Time Limit: 90min

Topics for Today’s class

• Vienna Convention on Diplomatic Relations 1961. Diplomatic Immunities and Privileges

• the Vienna Convention on Consular Relations, 1963

Vienna Convention on Diplomatic Relations 1961.

Classification of Diplomatic Agents: (Vienna Convention on Diplomatic Relations 1961)
According to status and function
a. Ambassador and Legates, High Commisioner
b. Ministers Plenipotentiary/Envoys extraordinary
c. Ministers Resident (Added by Congress of Aix-La-Chappelle 1818, subsequently dropped
by Vienna Convention on Diplomatic Relations 1961)
d. Charge d’affaires (Appointed by Foreign Ministers of States)

Functions of Diplomatic Agents:

According to Article 3 of Vienna Convention on Diplomatic Relations 1961:
a. Representation of a State
b. Protecting the interest of the sending State
c. Negotiating with the Govt. of Receiving State
d. Reporting all lawful means, conditions and developments in the receiving State to the Govt.
of sending State.
e. Promoting cordial relations between the sending State and the receiving State in all fields
(Economic, Cultural, Social, Scientific, etc.).
f. Specialized Functions as and when allotted

Base of Diplomatic Immunity:

a. Theory of Extra-territoriality: immunities and privileges because individuals are outside the
jurisdiction of state in which they are appointed (abandoned by Vienna Convention on
Diplomatic Relations 1961)
b. Functional Theory: Realizing 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,
Immunities and privileges of diplomatic mission (Article 22 to 28 of Vienna convention on diplomatic
relations 1961)

Principle of Consent

There is no right as such under international law to diplomatic relations, and they exist by virtue of
mutual consent. Accordingly, the Convention specifies in article 4 that the sending state must ensure
that the consent (or agrtment) of the receiving state has been given for the proposed head of its
mission, and reasons for any refusal of consent do not have to be given

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.

In 1979, the US Embassy in Tehran, Iran was taken over by several hundred demonstrators. Archives and
documents were seized and fifty diplomatic and consular staff were held hostage. In 1980, the
International Court declared that, under the 1961 Convention (and the 1963 Convention on Consular
Relations): Iran was placed under the most categorical obligations, as a receiving state, to take
appropriate steps to ensure the protection of the United States Embassy and Consulates, their staffs,
their archives, their means of communication and the free movement of the members of their staffs.

Issues where mission premises clause has been abandoned.

On 17 April 1984, a peaceful demonstration took place outside the Libyan Embassy in London. Shots
from the Embassy were fired that resulted in the death of a policewoman. After a siege, the Libyans
inside left and the building was searched in the presence of a Saudi Arabian diplomat. Weapons and
other relevant forensic evidence were found. The issue raised here, in the light of article 45(a) which
provides that after a break in diplomatic relations, 'the receiving state must. . . respect and protect the
premises of the mission', is whether that search was permissible. The UK view is that article 45(a) does
not mean that the premises continue to be inviolable ‘and this would clearly appear to be correct. There
is a distinction between inviolability under article 22 and respect and protection under article 45(a)

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.

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

2. The official correspondence of the mission shall be inviolable

3. The diplomatic bag shall not be opened or detained

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.

Immunities and privileges of diplomatic Agents (Article 29-36 of Vienna convention on diplomatic
relations 1961)

Immunities and privileges start from the moment the person enters the territory of the receiving state
on proceeding to take up his post or, if already in the territory, from the moment of official notification
under article 39.

Article 40 provides for immunity where the person is in the territory in transit between his home state
and a third state to which he has been posted. by article 39(2) there would be continuing immunity -
with regard to those acts that were performed in the exercise of his functions as a member of the
mission

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

The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the
premises of the mission

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. 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

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;

(f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable
property, subject to the provisions of article

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

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 1
of this article,

In view of suspicions of abuse, the question has arisen as to whether electronic screening, not involving
opening or detention, of the diplomatic bag is legitimate. The UK appears to take the view that
electronic screening of this kind would be permissible, although it claims not to have carried out such
activities, but other states do not accept this.jl' It is to be noted that after the Libyan Embassy siege in
April 1984, the diplomatic bags leaving the building were not searched

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 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 e specified in
paragraph 1 of article 31

Respect the laws and regulations of receiving state

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.

Immunities of international organizations:

a. UN has immunity from all legal processes
b. Its premises, assets, documents are inviolable
c. Exemption from tax and custom duties
d. Secretary General and Assistant Secretary General have diplomatic immunity

Waiver of Immunity:
a. Immunity of a diplomat can be waived by the State of the diplomat (Article 32): A 2002
example of a Colombian diplomat in London being prosecuted for the manslaughter of a
man who mugged his son was deemed in the public interest once diplomatic immunity
was waived by the Colombian government.
b. If a diplomat present himself in any case in the court of the receiving State
c. If a diplomat file a case in the court of the receiving State
d. Persona non-grata: Under the Vienna Convention on Diplomatic Relations Article 9,
a receiving State may "at any time and without having to explain its decision" declare
any member of a diplomatic staff persona non grata. A person so declared is considered
unacceptable and is usually recalled to his or her home nation. If not recalled, the
receiving State "may refuse to recognize the person concerned as a member of the
mission.
According to Article 32 of the Vienna Convention on Diplomatic Relations 1961 waiver must
always be express.

Waiver of immunity from jurisdiction in respect of civil or administrative proceedings is not to be taken
to imply waiver from immunity in respect of the execution of the judgment, for which a separate waiver
is necessary

While waiver of immunity in the face of criminal charges is not common, 'it is routinely sought and
occasionally granted'. However, Zambia speedily waived the immunity of an official at its London
embassy suspected of drugs offences in 1985
Termination of Diplomatic Mission:
a. Recall of Envoy
b. Notification in regard to the end of Envoy’s functions (Article 43)
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 recognize the diplomatic agent as a member of the mission.

c. On the request of the receiving State

d. By delivery of passport
e. Persona non-gratia (Article 9 & 43)
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

f. End of the object of mission

g. Expiration of letter of credence

the Vienna Convention on Consular Relations, 1963

Consular relation

Consuls:
The Vienna Convention on Consular Relations of 1963 is an international treaty that defines a
framework for consular relations between independent countries. A consul normally operates out
of an embassy in another country and performs two functions: (1) protecting in the host country
the interests of their countrymen, and furthering the commercial and economic relations between
the two countries.

Classification of Consuls:
a. Consul-General (Main cities of the host State)
b. Consuls- Consuls (in small cities or assist Consul-General)
c. Vice- Consul (Appointed by Consul-General)
d. Consul-Agent (Appointed by Consul-General or Consul)
Receiving States accept them by issuing them a letter of permission called ‘Exequatur’.

Functions of Consuls:
a. Protect commercial interest
b. Look after shipping of their country
c. Look after interest of their citizens and assist them in getting passports, etc.
d. Testify signatures, registration of marriages, birth, death, etc.

Consuls’ Immunity:
Consular privileges and immunities: the Vienna Convention on Consular Relations, 1963: They are
entitled to the same exemption from taxes and customs duties as diplomats
Article 31 emphasizes that consular premises are inviolable and may not be entered by the authorities of
the receiving state without consent.

Article 32 Like diplomatic premises, they must be protected against intrusion or impairment of
dignity,393 and similar immunities exist with regard to archives and documents394 and exemptions
from taxes

Article 35 The receiving State shall permit and protect freedom of communication on the part of the
consular post for all official purposes

Article 41 provides that consular officers may not be arrested or detained except in the case of a grave
crime and following a decision by the competent judicial authority

Under article 43 their immunity from jurisdiction is restricted in both criminal and civil matters to acts
done in the official exercise of consular functions."' In Koeppel and Koeppel v. Federal Republic of
Nigeria for example, it was held that the provision of refuge by the Nigerian Consul-General to a
Nigerian national was an act performed in the exercise of a consular function within the meaning of
article 43 and thus attracted consular immunity

The Convention on Special Missions, 1969: In many cases, states will send out special or ad hoc
missions to particular countries to deal with some defined issue in addition to relying upon the
permanent staffs of the diplomatic and consular missions.

By article 8, the sending state must let the host state know of the size and composition of the mission,

according to article 17 the mission must be sited in a place agreed by the states concerned or in the
Foreign Ministry of the receiving state.

By article 31 members of special missions have no immunity with respect to claims arising from an
accident caused by a vehicle, used outside the official functions of the person involved,

and by article 27 only such freedom of movement and travel as is necessary for the performance of the
functions of the special mission is permitted

The Vienna Convention on the Representation of States in their Relations with International
Organisations of a Universal Character, 1975

This treaty applies with respect to the representation of states in any international organization of a
universal character, irrespective of whether or not there are diplomatic relations between the sending
and the host states

There are many similarities between this Convention and the 1961 Vienna Convention. By article 30, for
example, diplomatic staff enjoy complete immunity from criminal jurisdiction, and immunity from civil
and administrative jurisdiction in all cases, save for the same exceptions noted in article 3 1 of the 1961
Convention. Administrative, technical and service staff are in the same position as under the latter
treaty (article 36). The mission premises are inviolable and exempt from taxation by the host state,
while its archives, documents and correspondence are equally inviolable

Internationally protected persons The 1973 Convention on the Prevention and Punishment of Crimes
against Internationally Protected Persons, including Diplomatic Agents came into force in 1977. It seeks
to protect heads of state or government foreign ministers abroad, state representatives and officials of
international organisations from the offences of murder, kidnapping or other attack upon their person
or liberty.