Anthony Aust. Handbook of International Law

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necessary freedom and security to carry out their work. Other missions and entities, and persons

connected with them, also enjoy certain privileges and immunities. These are described at p. 155

(special missions), p. 156 (consular posts) and p. 199 (international organisations), below.

The establishment of diplomatic relations and permanent diplomatic missions

The establishment of diplomatic relations and permanent diplomatic missions requires the consent

of both states (Article 2). They must be sovereign states and must recognise each other as such.

Recognition is usually soon followed by the establishment of diplomatic relations, and sometimes

the establishment of relations constitutes the act of recognition.

The two states are known by the self-explanatory terms sending state and receiving state. The

term diplomatic mission is generic. Most are called embassies, but some have titles such as Libyan

People’s Bureau. As between the fifty-three Commonwealth states, their diplomatic missions are, for

historical reasons,

called high commissions, and their ambassadors are high commissioners.

Even when diplomatic relations have been achieved, permanent diplomatic missions do not have

to be set up, or at least not in both states. If the two states do not have much in the way of mutual

interests, neither may feel the need to have permanent missions, particularly if both states are small

with limited resources. Alternatively, only one of the states may set up a permanent mission,

provided the other state is content to conduct diplomatic relations mostly via that mission. This is

not uncommon for newly independent states. Diplomatic relations can also be conducted by

accrediting to the receiving state the head of the sending state’s permanent diplomatic mission to a

third state, or assigning members of his diplomatic staff to represent the sending state. He or they

will then visit the receiving state as necessary (Article 5). This practice has been used even more in

recent years because of the large increase in the number of states and their lack of money. Relations

can also be conducted by ad hoc diplomacy, by special missions,

or in contacts between permanent

missions to international organisations, in particular between permanent missions to the United

Nations.

3. For states and recognition, see p. 17 above.

4. Satow, paras. 41.26–41.28.

5. See p. 155 below.

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The functions of a diplomatic mission

The main functions of a diplomatic mission are described in Article 3(1): representing the sending

state, protecting its interests and those of its nationals, negotiating with the receiving state, reporting

what goes on in the receiving state and promoting friendly relations, which includes providing the

local population with information about the sending state. The list is not exhaustive, and the

customary functions include also co-operation with the receiving state in trade promotion, and

financial, economic, scientific, defence and cultural matters and, increasingly, prevention of crime

(in particular drug-trafficking and terrorism) – in fact, anything which the two states wish to do

together through the means of their respective missions.

These days, performing consular functions is an important role for most diplomatic missions, as

expressly recognised both by Article 3(2) of the Convention and by Article 2(2) of the Vienna

Convention on Consular Relations 1963 (the ‘Vienna Consular Convention’),

which provides that

the establishment of diplomatic relations implies consent to the establishment of consular relations.

When a member of a diplomatic mission performs a consular function, he does so in accordance

with the Vienna Consular Convention but retains all his diplomatic privileges and immunities. This

is important since consular and diplomatic functions overlap to some extent, particularly in the

protection of one’s nationals, and consular privileges and immunities are limited. When a member of

a diplomatic mission performs consular functions, he should generally deal with the local

authorities, police, judicial, etc., rather than central government (Article 70(3) of the Vienna

Consular Convention). To avoid misunderstandings as to the nature of his duties, it is desirable that

he should be given a consular appointment in addition to his diplomatic post (e.g. First Secretary and

Consul), and both appointments be notified to the receiving state.

There are, of course, grey areas. Some missions may get involved in commercial activities. Even

when these activities can be regarded as proper functions of the mission (buying large quantities of

foodstuffs for the sending state), the transactions may not enjoy state immunity.

Trading activities,

such as selling airline tickets or charging fees for language lessons, are generally not regarded as

diplomatic functions. Although the promotion of tourism, in itself, is not outside those functions if

done

6. 596 UNTS 261 (No. 8638); UKTS (1973) 14; TIAS 6820.

7. See pp. 165 et seq below.

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within the mission as part of its role of providing information about the sending state, a separate

tourist office, even if it does not trade, does not perform a diplomatic function and is therefore is not

part of the premises of the mission (see below).

It is not unusual for a mission to establish a school

for the children of the members of the mission. Its premises may properly be regarded as part of the

mission, and the teachers members of the administrative and technical staff. However, problems can

arise if the school also admits children of nationals of the sending state who are not members of the

mission, children of members of other missions or children of nationals of the receiving state. Much

will depend on the attitude of the receiving state. The more the school becomes a commercial

operation, the more the receiving state is likely to question its diplomatic status. However, the

receiving state may agree to treat the school as part of the mission: see Article 47(b).

The members of the mission

The members of a diplomatic mission are the head of mission, the diplomatic staff, the

administrative and technical staff (‘A&T staff’) and the service staff. The head of mission and the

diplomatic staff are defined in Article 1(e) as ‘diplomatic agents’, and enjoy the highest scale of

privileges and immunities; the other members of the mission are on lower scales of privileges and

immunities.

The head of mission has to be expressly accepted by the receiving state before he can take up his

post. This is done by obtaining the agrément of the receiving state. No form is prescribed, although

something in writing is usual and desirable. No reasons have to be given for refusing agrément,

although if they are given they should relate to the person rather than his government. The receiving

state can require its prior approval (not agrément) of military, naval or air attachés (Article 7).

The sending state may ‘freely appoint’ the other members of the mission, who also do not have to

be members of the diplomatic service. There is no requirement for prior or subsequent approval by

the receiving state. Nor can it require that locally engaged staff be chosen from a list provided

8. See Diplomatic Immunities and Privileges: Government Report on Review of the Vienna Convention on

Diplomatic Relations and Reply to ‘The Abuse of Diplomatic Immunities and Privileges’, published by the

British Government in 1985, Cmnd 9497, para. 39. For extracts, see (1985) BYIL 437–53.

9. See p. 154 below.

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by it; nor require that the receiving state employ someone it does not want.

The foreign ministry of the receiving state must be notified, in advance where possible, of all

appointments and of the arrivals and departures of members of the mission. The engagement and

discharge of local staff must also be notified. Notifications should clearly indicate whether the

person is a diplomatic agent, a member of the A&T staff or service staff by describing the post (e.g.

first secretary, communications officer, driver). Members of the family and private servants must

also be notified. In doing so, a sending state must naturally act in good faith and not abuse the

scheme of the Convention by notifying, say, an embassy accountant as a diplomatic agent, since he

does not perform duties of a diplomatic nature. In case of abuse, the receiving state could take action

under Article 9 to have the member of staff removed (see below). In case of persistent abuse, it

could limit the number of mission staff in accordance with Article 11 (see below). In most cases, the

foreign ministry will raise the matter informally with the mission. If the mission cannot provide an

acceptable explanation, it will either have to withdraw the notification or risk the receiving state

using its powers to force withdrawal.

Failure to notify a person entitled to privileges and immunities (and consequent omission from the

local diplomatic list) will not affect the person’s entitlement, which takes effect automatically on

arrival in the receiving state to take up post (unless he is already there, in which case entitlement

only begins once the appointment has been notified (Article 39(1))). Nevertheless, since the freedom

of a sending state to appoint the members of its mission requires the receiving state to exempt the

arriving members from immigration restrictions, failure to notify in advance could result in

inconvenience.

But there is no presumption of diplomatic immunity: it must be established in each case, and a

diplomatic passport is not conclusive evidence of diplomatic status.

Whether a person is a member

of a mission is essentially a matter of fact. Any problem can usually be resolved by discussions with

the receiving state. When the issue is raised in connection with legal proceedings, the courts of the

receiving state will often look to its foreign ministry for guidance. Failure to notify a person, or a

significant delay in doing so, may make it more difficult to convince a court or the foreign ministry

that the person is really a member of the mission. In practice,

10. See Denza, pp. 50.

11. See p. 141 below.

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such difficulties are more likely to arise when the person who has not been notified has been locally

engaged, or is involved in an activity which is not obviously a function of a diplomatic mission,

claims to be a member of the family of a member of the mission.

Members of the diplomatic staff should be nationals of the sending state, although, exceptionally,

they can be nationals of the receiving state if the latter agrees (Article 8). The receiving state can

apply the same rule to nationals of third states who are not nationals of the sending state. The rule

does not apply to the rest of the staff of the mission, many of whom are likely to be local nationals,

for reasons of convenience and cost.

Persona non grata

Article 9 confers on the receiving state the unqualified power to require the removal of any member

of the mission. For a diplomatic agent the receiving state notifies the sending state that he is persona

non grata, and for all other cases that he is ‘not acceptable’. The notification can be done at any

time, even before the person’s arrival in the receiving state. The sending state is then obliged either

to recall the person or to terminate his functions with the mission. If it refuses or fails to remove him

within a reasonable time, the receiving state can refuse to recognise him as a member of the mission

so that he will no longer enjoy any privileges or immunities. These powers are essential, and are no

more than a reflection of the fact that diplomatic and A&T staff enjoy complete immunity from the

criminal jurisdiction of the receiving state and the inviolability of their person and residence. Under

Article 39(2), the person is entitled to have a ‘reasonable’ time in which to leave, retaining his

privileges and immunities until then. Unless the circumstances are quite exceptional, forty-eight

hours is the minimum reasonable period, seven to fourteen days being normal.

However, specific use of the Article 9 procedure is rare, and done more for political purposes. In

practice, it is usually enough for the receiving state to request the recall of the person within a

specified number of days, and this is normally done without trouble. When a serious offence has

been committed, the sending state may have the choice of waiving the person’s immunity or

withdrawing him. Persistent flouting of parking regulations is a good reason for requiring

withdrawal.

12. See p. 119 above.

13. See p. 147 below.

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But no reasons for demanding recall have to be given by the receiving state. There may be no

conclusive proof of unacceptable conduct, or there may be a difference between the two states as to

its true nature or purpose. In practice, reasons are often given, although sometimes wrapped up in

diplomatic obfuscation (‘activities incompatible with his status’, i.e. spying). Whether the receiving

state makes the reasons public depends largely on whether the conduct was purely personal, such as

drunken driving, or had been authorised or condoned by the sending state, such as subversion,

terrorism or espionage.

Size and composition of the mission staff

In the absence of a specific agreement with the sending state, the receiving state can require that the

number of staff of the mission ‘be kept within limits considered by [the receiving state] to be

reasonable and normal, having regard to circumstances and conditions in the receiving state and to

the needs of the particular mission’ (Article 11). Similarly, the receiving state can also refuse to

accept officials of a particular category, such as defence attachés, provided this is done for all

diplomatic missions in the receiving state. Articles 13–20 deal with vital protocol matters such as

credentials, precedence and flags, so need not detain us.

The premises of the mission

The ‘premises of the mission’ are defined in Article 1(i) to include all the buildings and land,

irrespective of ownership (they may well be leased), used for the purposes of the mission, including

the residence of the head of mission, which today is usually physically separate from the chancery.

The Convention does not require missions to be at the seat of government, although they usually are.

Some receiving states (e.g. Switzerland) require them to be there. In order to control the location of

missions, some states have legislation governing the use of property for the premises of a diplomatic

mission. The Diplomatic and Consular Premises Act 1987 requires the consent of the British

Government before property can acquire the status of premises of a diplomatic mission. A certificate

issued under the Act is conclusive evidence of whether land is or was at any time the premises of a

mission. The sending state may establish offices forming

14. See Denza, pp. 86–106 and, where necessary, the references in it to Satow.

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part of the mission in another part of the receiving state (including an overseas territory), only with

the prior express consent of the receiving state (Article 12).

Facilitating the acquisition of premises for the mission

The receiving state must either ‘facilitate the acquisition, in accordance with its laws, by the sending

state of premises necessary for its mission or assist the latter in obtaining accommodation in some

other way’ (Article 21). It must also assist ‘where necessary’ in obtaining suitable accommodation

for the members of the mission. Although the receiving state must therefore provide administrative

assistance, it does not have to go as far as actually providing premises. Nor does it have to change its

laws, which may prohibit aliens from owning land or restrict the choice of areas in which missions

may be located. Sometimes states will conclude a treaty to provide for the reciprocal provision of

land for new mission premises and regulate the construction of the premises.

Help with facilities for the mission

There is not much substance to the obligation in Article 25 for the receiving state to accord ‘full

facilities’ for the performance of the functions of the mission. Assistance in obtaining telephone

lines, or permits for alterations or extensions to the premises, are examples of the kind of assistance

that can be expected. But it is only ‘assistance’. Since Article 41 requires all persons enjoying

privileges and immunities to respect local laws and regulations, Article 25 cannot be invoked to

avoid normal planning controls and licensing requirements. There is certainly no obligation on the

receiving state to ensure the provision of public utility services (electricity, gas, telephone, etc.) if

the mission has not paid its bills. Article 25 is usually invoked to bolster a request or complaint

based on a more specific provision of the Convention.

Also, requests for assistance must be reasonable. It is doubtful if the receiving state is required to

provide a certain number of exclusive free parking places in the road outside the mission or

residence. Given the traffic problems in cities today, to insist on such a privilege could

15. See the Russia–UK Agreements of 1996, UKTS (1997) 1 and 2.

16. See Denza, p. 167.

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be unreasonable. The provision of parking spaces is a courtesy, not an obligation.

Nevertheless,

even in cities with a serious traffic problem, a small number can usually be found for each mission;

and these days there may be security reasons for the senior staff of some missions to be able to park

near to the entrance of the mission and those guarding it. No doubt the provision of parking spaces is

also influenced by considerations of reciprocity; the receiving state may have a problem in arranging

for the allocation of spaces, but will want to ensure that it has sufficient for its own mission in the

sending state.

Inviolability of the premises of the mission

It is sometimes said that a diplomatic mission is ‘foreign soil’. This may be correct culturally, but

not legally. The land on which the mission premises stand remains part of the territory of the

receiving state, and buying or leasing the land has to be done under local law.

But Article 22(1)

states the fundamental principle that the premises of the mission are inviolable: agents of the

receiving state may not enter without the consent of the head of mission. However, if a mission is

located in part of a commercial office building (quite common these days), those parts that it shares

with non-diplomatic tenants will not enjoy inviolability. The essence of inviolability is freedom from

interference, coupled with a special duty to protect (see below). Inviolability is an absolute rule,

since any exception to it could be abused by a receiving state.

In contrast to consular premises,

the prohibition on entry applies even in an emergency. If an ambassador would rather his embassy

burn down than call in the local fire service, all the receiving state can do is to try to persuade him to

let them in.

Diplomatic missions with chanceries and residences in historic buildings in prime locations can

now be an obstacle to the building of highways and shopping malls. But ambassadors need not

worry. The mission cannot be required to move. Even if negotiations with the receiving state do not

resolve the matter, inviolability means that the mission cannot be made to move or to give up part of

its land even if suitable alternatives are offered free.

Inviolability has various other consequences.

17. See p. 12 above on comity.

18. See Radwan v. Radwan [1972] 3 All ER 1026; 55 ILR 579.

19. See the examples in Denza, pp. 116 et seq.

20. See pp. 157-58 below.

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Police action

Since 1961, there have been examples of police entering diplomatic missions without permission in

pursuance of their normal duties, in particular pursuing suspected criminals. But, even if the police

were unaware of the status of the premises (unlikely in most cases), the intrusion would amount to a

breach of its inviolability. There is, however, a possibility that in very exceptional circumstances

police may enter the premises without consent if its occupants, whether diplomats or terrorists,

clearly pose a real and immediate danger to human life outside the premises.

In all other cases, the

receiving state has the remedies of persona non grata or severing diplomatic relations.

Service of legal process

By legal process is meant writs, summonses and suchlike, which can usually be served either in

person or by post. Personal service on the premises of the mission and the residences of members of

the mission would be a breach of their inviolability, and therefore ineffective. If service by post is

attempted in ignorance of the prohibition, it does not amount to a breach, but it is equally

ineffective. In theory, the sending state’s consent could be given to effect service on the premises,

but this in unlikely. In practice, if a mission wishes to allow service it can, if local law allows,

authorise its local lawyers to accept service, if necessary reserving its position on immunity from

jurisdiction.

For the purposes of Article 22, it does not matter whether the process is addressed to a member of

the mission, the mission itself or the sending state, the attempt to serve will be ineffective. The

distinction is, however, important for the legal proceedings. It is important to know if one should

bring a claim against a member of the mission or against the sending state.

A mistake could be

serious.

Immunity from jurisdiction

Article 22(3) makes the premises of the mission, and all property on it, immune from search,

requisition, attachment or execution. Now that a state is less able successfully to assert state

immunity, the protection given

21. For a discussion of this dilemma in the case of the Libyan Mission siege in London in 1984 and the

possibility of justifying entry on the basis of self-defence, see Denza, pp. 124–6.

22. See p. 138 below.