Anthony Aust. Handbook of International Law

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32. For examples, see Denza, pp. 197–9.

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safety of aircraft is of paramount importance and a variety of means are used to detect explosives,

weapons and drugs. Regrettably, such items are sometimes carried in diplomatic bags. But no airline

is obliged to carry any person (including even an ambassador) or any item which it considers illegal

or a safety risk. It may therefore require as a condition of carriage that a diplomatic bag be submitted

to scanning by the airline or airport security authorities. If the scanning indicates a suspicious item

the airline can refuse to take the bag. But, can the receiving state scan a bag on arrival in its

territory; and if it finds the bag is being abused, what can it do? Depending on the circumstances, the

mission may be willing to open the bag in the presence of officials of the sending and receiving

states, although it is under no obligation to do so. The practice and views of states on the matter

differ, but one may tentatively summarise the position as follows. Scanning is permissible provided

it is not so intrusive in nature, or in the way it is carried out, that details of the contents could be

revealed. Use of a sniffer dog to detect drugs is therefore acceptable, as is a radioactivity detector.

On the other hand, certain X-ray and other equipment is capable of ‘reading’ the contents of

documents and electrical equipment. This would be equivalent to opening the bag and inspecting its

contents. But, even if the scanning is proper and reveals the presence of items such as guns, the

receiving state is not entitled either to open the bag or to delay it. Instead, it should of course inform

the mission and seek its comments. If the mission insists on the bag being released forthwith, it

should be. If, however, the receiving state insists on the bag being returned to the sending state,

despite the fact that this would be a breach of the Convention, since the sending state will itself

already be in breach, it is not in a strong position to protest.

If the bag is in transit via a third state, that state must accord it the same inviolability and

protection as the receiving state (Article 40(3)).

The protection given by international law to the diplomatic bag applies whether or not it is

accompanied by a diplomatic courier (for reasons of cost most bags today are unaccompanied), but

for practical purposes a bag is naturally more secure if accompanied.

Diplomatic couriers

The messengers specially entrusted with the delivery of the diplomatic bag are accorded functional

immunity – only so much as is necessary for the protection of the bag. Article 27(5)–(7) provides for

three categories:

The full-time diplomatic

courier

Because of the expense this is a dying race. He holds a diplomatic

courier’s passport indicating his status, and

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carries a document indicating the number of packages constituting the diplomatic

bag, which must bear the visible external marks required by Article 27(4). In view

of his function, the receiving state must protect him. He therefore enjoys personal

inviolability (see below) and is not liable for any form of arrest or detention even

when he has delivered the bag and returns without another one. His personal

baggage, however, enjoys no special status and can be inspected or even

confiscated. If the courier transits a third state, that state must accord him the same

inviolability and protection as the receiving state (Article 40(3)).

The ad hoc

courier

Also for reasons of cost, these are used increasingly. The ad hoc (or ‘casual’)

courier has the same status as a full-time courier, except that his immunities, as a

courier, cease once he has delivered the bag. Such couriers are often members of a

diplomatic mission who are sent to a neighbouring state to collect a bag delivered

there by a full-time courier.

The captain

of a

commercial

aircraft

A bag may be entrusted to the captain of a commercial aircraft scheduled to land at

an authorised airport in the receiving state. Although he must be provided with a

document indicating the number of packages constituting the diplomatic bag, he is

not a diplomatic courier. Nevertheless, if the aircraft has to transit a third state, that

state must accord the bag the same inviolability and protection as the receiving state

(Article 40(3)). Since the captain is not a courier, a member of the diplomatic

mission has the right to collect the bag ‘directly and freely’ from him. A diplomatic

bag can also be entrusted to the captain of a state aircraft, including a military

aircraft.

Personal inviolability

Since Ancient Greece it has been a fundamental principle that the person of a diplomatic agent is

inviolable: he is not liable to any form of arrest or detention, and the receiving state must treat him

with due respect and take all appropriate steps to prevent any attack on his person, freedom or

dignity (Article 29).

No arrest or detention

Although the prohibition on arrest or detention is self-explanatory, there are certain exceptional

circumstances when a diplomat can be detained

33. See p. 172 below on the immunity of state aircraft.

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temporarily, either in the interests of protecting others or in his own interest. There have been (a

few) cases where a diplomat waving a gun about in the street has been disarmed by police. Similarly,

if a diplomat is found by police to be obviously drunk in charge of a motor vehicle he can be stopped

and held by police until his mission or family collects him. Nor does inviolability mean that a

diplomat can ignore procedures established to ensure general safety. Thus, if he refuses to submit to

screening by airport metal detectors or X-ray machines, or to a search of his person or baggage, the

airline is not under any obligation to carry him.

Safeguarding from attack

The duty to ‘take all appropriate steps’ to prevent any attack on the diplomat’s person, freedom or

dignity rests on the receiving state, even if the sending state also takes steps to protect its diplomats

(in which case it must conform to local laws, in particular those on the possession and use of

firearms).

What is ‘appropriate’ will depend on the circumstances. There is no need for a

permanent guard on the residence of even an ambassador unless there is reason to believe that he

may be at risk. The decision on what is reasonable must be left to the receiving state, although it

should consult closely with the mission. Similarly, if a diplomat is taken hostage (other than in a

mission or residence),

what to do, and when is a matter for the receiving state; the receiving state

is not under any obligation to do what the sending state asks of it, such as giving in to kidnappers’

demands.

If, however, the receiving state is clearly unable or unwilling to do what is necessary to

obtain the release of the hostages, and their lives are in serious danger, the sending state may, in

exercise of its inherent right of self-defence, use reasonable force to free them.

Inviolability of the private residence

We have seen that the residence of the head of mission is treated as part of the premises of the

mission and thus enjoys inviolability (Articles 1(i) and 22). The private residence of a diplomatic

agent enjoys the same inviolability (Article 30(1)). For this purpose, the residence may be

temporary,

34. See p. 153 below on Article 41.

35. See p. 128 above on the Lima hostages.

36. See Denza, pp. 212–14.

37. See further p. 227, para. (1), below. On the rescue of Israeli nationals at Entebbe airport, see

Oppenheim, para. 131, n. 11.

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such as a hotel room occupied on arrival at post. The inviolability is not lost when the residence is

temporarily left unoccupied during a holiday or when repairs are being carried out. A second (e.g.

vacation) home will be accorded inviolability only while a member of a mission physically occupies

it.

Inviolability of private papers, correspondence and property

Although official papers in the possession of the diplomatic agent already enjoy inviolability,

Article 30(2) confers inviolability also on his private papers and correspondence. Thus, if he is sued

in respect of a private professional or commercial activity for which he has no immunity from

jurisdiction,

he cannot be compelled by the local courts to produce such papers, although his head

of mission could direct him to comply with the demand.

All property in the possession of a diplomatic agent, even if ownership is disputed, is inviolable

(Article 30(2)). ‘Property’ includes his bank account and motor car. There are three exceptions: (1)

enforcement of a judgment when, in accordance with Article 31(1)(a)–(c), he has no immunity (see

below); (2) inspection of his personal baggage (Article 36(2)(b));

and (3) since it can have no

greater inviolability than those of the mission, his motor car can also be towed away if it causes an

obstruction.

The difference between diplomatic immunity and state immunity

Diplomatic immunity and state (or sovereign) immunity (see the next chapter) are often confused.

State immunity is the immunity of a state, and its officials and agents, from the jurisdiction of

another state. Diplomatic immunity is accorded to the members of a diplomatic mission, and in the

case of diplomatic agents amounts to almost total immunity from jurisdiction. State immunity is not

governed by a treaty of universal application (although the United Nations recently adopted a

Convention on the Jurisdictional Immunities of States and their Property 2004)

and so the extent

of the immunity varies from state to state. Keeping a clear distinction between state immunity and

diplomatic immunity is therefore vital. Unfortunately, the difference is not always well understood

38. See p. 130 above on Article 24.

39. See p. 140 below on Article 31(1)(c).

40. See p. 147 below.

41. See p. 131 above.

42. See p. 160 below.

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courts, private lawyers, or even foreign ministries. Confusing the two can lead to trouble.

Take a simple case: an ambassador contracts with a local decorator for the repainting of the

embassy. The ambassador disputes the bill, but the decorator will not reduce it. How is this typical

dispute to be resolved? Because the ambassador would in any event have diplomatic immunity, one

might think that all the decorator can do is to urge his foreign ministry to put pressure on the

ambassador or his government to pay or to negotiate a settlement. But, in this case the ambassador

would have signed the contract as part of his official functions, and therefore on behalf of his state. It

is the state that is the party to the contract, not the ambassador. In fact, the embassy – merely a

number of diplomats representing their state – has no legal personality and cannot therefore be

sued.

So, can the decorator sue the state? Whether a state can be sued in a foreign court will

depend on whether under the law of the receiving state a foreign state can claim immunity in the

particular circumstances and, if so, whether or not that immunity is then waived.

When considering legal proceedings in a matter in which a diplomat has been directly involved, it

is crucial to analyse the situation or transaction to see if he was acting on behalf of his state or

personally. Issuing legal proceedings against a diplomat when they should be against his state is

pointless and will only cause delay and expense. To help avoid confusion, when a member of a

diplomatic mission signs a contract, lease or suchlike as part of his official functions, he should do

so expressly on behalf of his state, and only the state should be named as the party.

Diplomatic immunity

A diplomatic agent is wholly immune from the criminal jurisdiction of the receiving state (Article

31(1)). This immunity is necessarily linked to the inviolability of his person.

The position regarding civil and administrative jurisdiction is slightly different. That jurisdiction

includes, in effect, all jurisdiction which is not criminal, although what is classified as criminal will

vary from country to country. Parking and other minor traffic offences are often not regarded as

criminal offences. The immunity covers all civil and administrative matters, which touch the

diplomatic agent, including divorce and child

43. See a 1956 judgment of the Supreme Court of Croatia in 23 ILR 431.

44. See p. 143 below.

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custody. Article 31(1) provides, however, for some exceptions. The legal problems concerning

diplomatic immunity are largely about how to deal with the consequences of immunity when it is not

waived or the application of these exceptions.

Exception (a): private immovable property in the territory of the receiving state

There is no immunity in respect of civil proceedings concerning title to or possession of land and

buildings on the land. It seems that this applies also to the principal private residence of a diplomatic

agent. However, even if a court were to order the diplomatic agent to leave, the inviolability of his

residence (unless waived) would prevent the order being enforced (Article 30). The practice of states

varies as to whether proceedings for recovery of rent or other such obligations also come within the

exception.

Exception (b): private involvement in succession proceedings

There is no immunity if the diplomatic agent is involved as a private person, and not on behalf of the

sending state, in civil proceedings relating to the estate of a deceased person.

Exception (c): private professional or commercial activity

There is no immunity in respect of civil proceedings relating to any professional or commercial

activity carried on by the diplomatic agent outside his official functions. If a diplomat writing a book

in his spare time defames someone he will have no immunity from an action for defamation. The

activity must generally be continuous, not an isolated act unless it is of some magnitude, like the

speculative purchase of land. Investments in shares and suchlike are also likely to fall within the

exception. Although Article 42 prohibits a diplomatic agent from practising ‘for personal profit’ any

professional or commercial activity, this does not forbid all paid activities. The exception in Article

31(1)(c) is for the benefit of persons doing business with him if he were to embark on profitable

work, whether in breach of the prohibition or with the consent of the receiving state.

45. For a full account of the problems, see Denza, pp. 237–53.