Anthony Aust. Handbook of International Law
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Although under Article 37(1) members of the family of a diplomatic agent do not enjoy privileges
and immunities if they are local nationals, they do not lose them if they are permanent residents,
although such cases are likely to be rare. In contrast, members of the families of A&T staff who are
local nationals or permanent residents have no privileges or immunities (Article 37(2)).
Commencement of privileges and immunities
Privileges and immunities are enjoyed from the moment the entitled person enters the receiving state
to take up his post or, if already there, when his appointment has been notified to the foreign
ministry (Article 39(1)). As indicated earlier,
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there is no absolute obligation on the sending state to
give prior notification of arrival, only ‘where possible’ (Article 10(2)). Difficult problems can arise
when diplomatic status is claimed long after the person has arrived, and often for the purpose of
asserting immunity from prosecution for a serious criminal charge. Since diplomatic status cannot be
assumed, it has to be established, if necessary to the satisfaction of a court.
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Therefore, a late
notification, especially if it is received after criminal charges against the person have been
announced or are imminent, may well be seen as not having been made in good faith. If the foreign
ministry, or a court, is not satisfied that the status has been established, they can disregard the
notification.
Termination of privileges and immunities
When the functions of an entitled person have come to an end (i.e. he has ceased to be a member of
staff of the mission), his privileges and immunities ‘normally’ cease on his final departure from the
receiving state (Article 39(1) and (2)). He is allowed a ‘reasonable period’ in which to leave, during
which the privileges and immunities continue, even in the case of an armed conflict. What is a
reasonable period will depend on the circumstances, but a month is normal. If the person is
dismissed from the diplomatic service en poste, he will be entitled to a reasonable period in which to
leave. If he is dismissed because of serious criminal charges made against him in the receiving state,
the sending state should at the same time waive his immunity. However, even once he has finally
left,
63. See p. 121 above.
64. See p. 141 above.
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his immunity with respect to acts performed ‘in exercise of his functions as a member of the
mission’ will continue. Other acts (private acts) will no longer enjoy immunity.
If a member of a mission dies, the members of his family continue to enjoy their privileges and
immunities until the expiry of a reasonable period in which to leave the country (Article 39(3)). But,
if a member of the family loses entitlement to privileges and immunities (as a spouse will do as a
result of separation or divorce), the entitlement probably ceases with immediate effect.
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Third states
Diplomats in transit
When a diplomatic agent is in a third state, he enjoys no privileges and immunities, with two
exceptions. We have already dealt with one, the ad hoc diplomatic courier.
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The other is when a
diplomatic agent passes through, or is in, a third state, provided he has any necessary visa for it,
‘while proceeding to take up or return to his post, or when returning to his own country’. The third
state must accord him inviolability and ‘such immunities as may be required to ensure his transit or
return’ (Article 40(1)). The immunities do not extend to exemption from search of personal baggage
or from confiscation of prohibited items. (One must also remember that possession of a diplomatic
passport is not proof that the person is a diplomatic agent.)
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Any members of the family of the
diplomatic agent who enjoy privileges or immunities and who accompany him, or are travelling
separately to join him or to return to their country, must be treated in the same way. In similar
circumstances, the third state must ‘not hinder’ the passage of members of the A&T or service staff,
and members of their families (Article 40(2)).
Communications in transit
Third states are also required to accord to official correspondence and other official communications
in transit, including messages in code or cipher, the same freedom and protection as is accorded by
the receiving state; and to accord diplomatic couriers (provided they have any necessary
65. Denza, p. 361.
66. See p. 136 above.
67. See p. 141 above.
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visas) and diplomatic bags in transit, the same inviolability and protection as the receiving state is
bound to accord (Article 40(3)).
Duties of the mission to the receiving state
Several duties of the mission are set out in Article 41. First, and most importantly, all persons
enjoying privileges and immunities have a duty to respect the laws and regulations of the receiving
state. Immunity from local law does not mean that one is above the law; it is still applicable to a
diplomat (otherwise there would be no point in waiving immunity), even if he cannot be forced to
appear before the courts. Enjoyment of immunity therefore carries with it a duty not to abuse it by
ignoring the law. If he does, his privileges and immunities will not be affected, although in a serious
case his immunity may be waived or he may be required to leave.
Secondly, members of a mission must not interfere in the internal affairs of the receiving state.
The scope of this duty is not always well understood. It does not mean that a diplomat cannot, if
instructed by his government, express in public views about the domestic policy of the receiving
state, even though his government must be careful not to interfere in those affairs. But a diplomat
must not express his personal views on such matters.
Thirdly, all official business with the receiving state must be conducted with or through the
foreign ministry of the receiving state, or such other ministry as may be agreed. But, in practice these
days, much business, and not always of a technical nature, is conducted directly with other ministries
without any prior agreement with, or even knowledge of, the foreign ministry. However, if the
foreign ministry insists on business on all, or specific, subjects being conducted only with it, the
mission must comply. Today, many treaties are negotiated by a mission directly with the other
ministries without reference by the mission or those ministries to either foreign ministry. This is a
thoroughly bad practice. Treaty-making is not as simple as it may seem. The expertise lies with
foreign ministries, who should always be kept informed of progress, and whose approval should
always be obtained before any text is finalised. Similarly, if a matter concerns a dispute, both foreign
ministries need to be made aware of it at an early stage.
Lastly, the premises of the mission must not be used in any manner incompatible with the
functions of the mission, such as for commercial purposes. The granting of diplomatic asylum by the
mission is incompatible with its functions, unless it is permitted by customary
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international law or by a treaty to which both the sending state and the receiving state are parties.
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End of the functions of a diplomatic agent
The functions of a diplomatic agent come to an end when his state so informs the receiving state, or
when the latter informs the sending state under Article 9(2) that it refuses to recognise him as a
member of the mission (see Article 43). But there are other circumstances: death, breach of
diplomatic relations, disappearance of the sending state (e.g. the German Democratic Republic) or
unconstitutional change of its head of state, so occasioning the need for fresh credentials for its
heads of missions.
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The replacement of the government of the sending state by constitutional
means does not affect the functions of its diplomatic agents. And, even if the government is
overthrown unconstitutionally, the receiving state will usually continue to regard its diplomatic
agents as still functioning pending recognition of the new government. Difficulties can arise when
there is an internal conflict in the sending state, and there is a disagreement among the members of
the mission as to which party to support. These types of problem can be resolved only in the light of
the particular circumstances.
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Facilities for departure
If diplomatic relations deteriorate or are broken off, or if an armed conflict breaks out with the
receiving state, it must nevertheless grant facilities to enable persons enjoying privileges and
immunities, and members of their families, to leave ‘at the earliest possible moment’. This includes
members of families who are local nationals, but not staff who are local nationals (which would
include dual nationals). If the mission needs it, the receiving state must place at its disposal the
necessary means of transport for its members and their property (Article 44).
Breach of diplomatic relations and the protection of the interests of the sending
state
Diplomatic relations are broken off from time to time, although even an armed conflict between two
states does not always result in the severance of all contacts. Discreet contacts are often continued in
a third state
68. See p. 187 below.
69. For details, see Satow, paras. 21.1–21.15.
70. See further Denza, pp. 386–8.
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(sometimes with the help of its government) or between permanent missions to the United Nations
or other international organisations. The receiving state is under an obligation, even in the case of an
armed conflict, to respect the premises of the mission, its property and its archives (Article 45(a)).
The sending state is entitled to entrust custody of the premises of the mission, its property and its
archives to a third state acceptable to the receiving state (Article 45(b)). Similarly, the sending state
may also entrust the protection of its interests and those of its nationals to a third state (‘protecting
power’) acceptable to the receiving state (Article 45(c)).
Once the mission has been closed down, its premises lose inviolability, unless they house an
‘interests section’. There is a growing trend for the interests of the sending state and its nationals to
continue to be looked after by a small number of its staff, who for this purpose become members of
staff of the mission of the protecting power. In many cases, the interests section is housed in the
premises previously occupied by the sending state’s mission. So it is, to some degree, business as
usual, except that the staff of the interests section must obey the orders of the head of mission of the
protecting power, and if the interests section is in its old premises it must fly the flag of the
protecting power. To arrive at this situation requires agreed arrangements between the protecting
power and the state whose interests it will be protecting. There will also have to be arrangements
between the protecting power (acting as surrogate) and the receiving state, since the latter can
reserve the right to consent to the appointment to the diplomatic staff of a mission of nationals of a
third state who are not also nationals of the sending state (Article 8(3)), and the receiving state will
normally want to make reciprocal arrangements for an interests section in the sending state.
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The
protecting power (and the receiving state) may insist that the interests section limits itself to
reporting and consular matters.
Non-discrimination and reciprocity
Although Article 47 states that the receiving state must not discriminate between states, it recognises
that the receiving state is entitled to depart from this rule (a) if the sending state applies the
Convention restrictively, in which case the receiving state can reciprocate; and (b) where by custom
or agreement states treat each other more favourably than required by
71. See Denza, pp. 399–402.
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the Convention. Thus, if a receiving state unnecessarily restricts the free movement of members of a
mission, the sending state can do likewise. Also, two states may accord on a reciprocal basis greater
privileges and immunities to the staff of their respective missions. During the Cold War, some
Western states reached mutually beneficial reciprocal agreements with some Soviet Bloc states
under which junior staff were also accorded full immunity and inviolability, and some of these
agreements may still be in effect.
Special missions
A special mission is ‘a temporary mission, representing the state, which is sent by one state to
another state with the consent of the latter for the purpose of dealing with it on specific questions or
performing in relation to it a specific task’. Since the beginnings of diplomacy, such ad hoc missions
have been an essential part of diplomatic relations, and pre-date embassies as we know them today.
Although the permanent diplomatic mission is still a cornerstone of diplomatic relations, special
missions are an essential complement. The vast majority are made up of diplomats and civil
servants, but some are led by ministers, and some by foreign ministers, prime ministers or heads of
state. Many special missions are sent to negotiate a bilateral or multilateral treaty or to discuss
problems related to the implementation or interpretation of a treaty.
The above definition of special mission is taken from Article 1(a) of the Convention on Special
Missions 1969.
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The definition does not cover the situation in which two or more states send
temporary missions to meet in a third state, with or without its knowledge. When this is done at
head-of-state level, customary international law may accord members of a special mission sufficient
immunity, but when it is done at official level there is doubt as to what immunity they enjoy.
Since the rules of customary international law on special missions were not at all clear, the
International Law Commission drafted the Special Missions Convention, drawing copiously on the
1961 Convention, so giving special missions privileges and immunities almost identical to those of
permanent diplomatic missions. Yet, because members of special missions generally live in hotels,
stay for only a few days or weeks and rarely bring their families, they do not have to cope with all
the problems of
72. 1410 UNTS 231 (No. 23431); ILM (1970) 127.
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permanent missions; nor do they cause the same problems for the host state as do permanent
missions. Therefore, conferring on special missions the same scale of privileges and immunities is
not easy to justify. This may be why the 1969 Convention did not enter into force until 1985 when it
received the necessary twenty-two ratifications (and even now has only thirty-five) and this only
because in the 1990s nine former republics of the Soviet Union and Yugoslavia ratified it in a bout
of post-independence enthusiasm.
A few of the non-party states have legislation on special missions; the others rely on customary
international law as determined by their courts.
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It is almost certain that, provided a state has
consented to it, a special mission will have immunity from civil and criminal jurisdiction in respect
of official acts, but what else it may enjoy seems to depend mostly on domestic law, if any. This may
not be satisfactory given the increasing number of special missions. But, the writer has been on
numerous special missions, sometimes to dodgy places, but has never felt the need for special legal
protection. Indeed, assuming that they are aware of the lack of a clearly defined status of a special
mission, that uncertainty may be a good influence on its members.
(As to representatives of states to international organisations, see pp. 199-202 below.)
Consular relations
L. Lee, Consular Law and Practice, 2nd edn, Oxford, 1991 Oppenheim, pp. 1132–55
The office of consul goes back a long way, and until 1963 was regulated by customary international
law and bilateral consular conventions. The latter are not affected by the Vienna Convention on
Consular Relations 1963 (the Convention),
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and can be supplemented, extended or amplified
(Article 73). The Convention followed the pattern of the 1961 Diplomatic Convention, although the
substance drew heavily on largely established practice as reflected in consular conventions. The
Convention entered into force in 1967 and now has 167 parties. The International Court of Justice
73. See Oppenheim, pp. 1125–6
74. 596 UNTS 261 (No. 8638); UKTS (1973) 14; TIAS 6820. For the ILC Commentary on the draft
Articles of the Convention, see A. Watts, The International Law Commission 1949–1998, Oxford, 1999,
vol. . pp. 230 et seq.
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sees the Convention as an authoritative statement of international law.
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The provisions of the
Convention broadly follow those of the Diplomatic Convention, so only the most important
provisions and differences will be mentioned below.
The establishment of diplomatic relations implies consent also to consular relations. Today, most
embassies also carry out consular functions in accordance with the Convention, although the staff
retain their diplomatic status.
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But there is still a need for states to establish ‘consular posts’ (not
missions) separate from their diplomatic missions. The establishment of each post requires the
consent of the receiving state, including its location and the district (sometimes just a port) that it
will cover (Articles 2–4).
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A consul may not act outside his district.
The functions of a consular post are set out in detail in Article 5 and include protection of, and
assistance to, nationals of the sending state; developing commercial, economic, cultural and
scientific relations and reporting on developments in those areas; providing information about
conditions in the receiving state; issuing passports and visas; performing notarial and similar acts;
transmitting legal documents; and supervising and assisting ships and aircraft registered in the
sending state.
A consul has freedom of communication with, and access to, a national of the sending state who
has been detained by the local authorities, which, if the person so requests, must inform the consul
of that fact, and the detained person informed ‘without delay’ of his rights (Article 36).
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The consul
can help arrange for him to have a local lawyer, giving legal advice not being a consular function. A
consul has the right to visit any of his nationals who have been imprisoned.
Consular posts are headed by a consul-general, consul, vice-consul or consular agent, usually the
first or the second named. The appointment must first be approved by the receiving state by means
of an exequatur, although the consul may be allowed to exercise his functions on a provisional basis
(Articles 8–14). Normally, consuls are subordinate to the head of his state’s local diplomatic
mission.
The premises of a consular post are inviolable, and the authorities of the receiving state need the
consent of the head of post to enter them,
75. Case Concerning US Diplomatic and Consular Staff in Tehran (USA v. Iran), ICJ Reports (1980), p.
7, paras. 45–55; 61 ILR 502.
76. See p. 119 above.
77. China–UK Exchange of Notes 1999, 2139 UNTS 256 (No. 37305); UKTS (2000) 93.