EMOYON-IREDIA, USIFO OSELE

12/LAW01/070

PUBLIC INTERNATIONAL LAW I

QUESTION
Compare and contrast the differences in immunities and privileges contained in the Vienna
Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations
1963, and Nigeria’s Diplomatic Immunities and Privileges Act, Cap D9, LFN 2004.
CONTENT
1. Introduction
i. All sovereign states are equal
ii. The Vienna conventions
a) on diplomatic relations 1961
b) on consular relations 1963
iii. Nigeria’s Diplomatic Immunities and Privileges Act
iv. Comments

2. Immunities and Privileges

i. Use of national flags and emblems (coat-of-arms)
ii. Inviolability of premises
iii. Fees and charges
iv. The archives and documents
v. The diplomatic bag and the consular bag
vi. Personal inviolability
vii. Immunity from jurisdiction
viii. Conclusion

3. The Nigerian Version: Cap D9

4. Conclusion
1. Introduction
The object of this work is to examine the immunities and privileges of state representatives
(diplomatic agents and consular agents) under the two Vienna Conventions, and Nigeria’s
Diplomatic Immunities and Privileges Act. The extent of immunities and privileges under the
Conventions and the Act differ. They are not exactly the same in terms of their quantum. This
is the focus of my discussion: to compare and contrast the differences. In pursuit of this, I
have made an effort to cite relevant authorities. Case studies are considered. Certain key
points are underlined. I have also included some comments.

i. All sovereign states are equal

One of the central policies of international law is the sovereign equality of states.
International law does not discriminate between independent states. All states are viewed as
equals, in theory at least. The principle is enshrined in the United Nation’s 1970 Declaration
on Principles of International Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United Nations. Every state enjoys
some protection on the basis of their equality under international law. For instance, there is
the rule that a state must not meddle in the domestic affairs of another state. States are, in
essence, ‘immune’ to foreign jurisdiction. The jurisdiction of one state cannot be imposed on
another. Equals have no jurisdiction over one another. Par in parem non habet imperium.
States often build and maintain international relations with each another. Such relations could
be very useful, especially for trade. But a state does not have a physical body. Nor does it
have a soul to be damned. It acts through human agents. Representatives may be sent from
one country to another: they could be either diplomatic agents or consular agents. The
protection which the sending state enjoys is given to these agents to ensure that they can
efficiently perform their functions as state representatives. This practice is not done to benefit
the individuals. It is a matter of expediency. From ancient times, people of all nations have
recognized the status of diplomatic and consular agents.1 The two Vienna Conventions2, in
their preamble, bear this important fact in mind.
The principle of sovereign equality of states is brought into focus by the immunities and
privileges of diplomatic agents and consular agents. Without the immunity of the sovereign
state, there would be no diplomatic immunity or consular immunity. In his International Law,
5th Edition, at pages 668-669, Malcolm N. Shaw explains that:
‘The special privileges and immunities related to diplomatic personnel of various kinds
grew partly as a consequence of sovereign immunity and the independence and equality
of states, and partly as an essential requirement of an international system. States must
negotiate and consult with each other and with international organisations and in order to
do so need diplomatic staffs. Since these persons represent their states in various ways,
they thus benefit from the legal principle of state sovereignty. This is also an issue of
practical convenience.’
The above position has been given a stamp of authority at the highest judicial levels in
Nigeria. In Oluwalogbon & 3 Ors vs. The Government of the United Kingdom (2005) 14
NWLR (pt 946) 760 at 784, para. H M.D. Muhammed JCA (as he then was) said:
1
Holsti, K.J., International Policies, London Practice Hall Inc., 2nd Edition, 1974, p. 175
2
The Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963
 “Learned respondents’ counsel is substantially correct that without state or sovereign
immunity diplomatic and consular immunity would not have arisen. It is certainly the
protection the state enjoys that is extended to such officers and organisations that
serve the state in another state which recognizes its immunity and agrees that same be
extended to its officers and organizations as well.”
Also, in African Reinsurance Corporation vs. JDP Construction (Nig) Ltd (2007) 11
NWLR (pt 1045) 224 at 234, para. D Akintan JSC stated:
“It may be mentioned that the idea of diplomatic immunity was developed from one
of the consequences of state equality rule which is expressed in the Latin maxim: par
in parem non habet imperium – meaning: no state can claim jurisdiction over another.
In practice, therefore, although states can sue in foreign courts, they cannot as a rule
be sued there unless they voluntarily submit to the jurisdiction of the court
concerned.”

ii. The Vienna Conventions

Vienna has a long history of being a place where important international conferences are
held. Much of the law on diplomatic and consular immunity is contained in two Vienna
conventions. The first – the Vienna Convention on Diplomatic Relations 1961 (the ‘VCDR
1961’) – was done on April 18, 1961. It entered into force on April 24, 1964. The other – the
Vienna Convention on Consular Relations 1963 (the ‘VCCR 1963’) – was done on April
24, 1963. It entered into force on March 19, 1967.
The Conventions are a combination of codification and progressive development.3 However,
there is a marked distinction between the two: the VCDR 1961 provides a framework for
diplomatic relations between states while the VCCR 1963 provides a framework for consular
relations between states. If the two Conventions were one and the same, then the 1963
Convention would have been quite unnecessary.

a) on Diplomatic Relations 1961

The establishment of diplomatic relations between states take place by mutual consent.4 This
means that no state can be legally compelled to enter into diplomatic relations. A permanent
diplomatic mission may be sent from one state (the ‘sending state’) to another (the ‘receiving
state’). But the former must obtain the consent, or ‘agrément’, of the receiving state.5 The
receiving state may refuse to give its consent; and it is not bound to give reasons for the
refusal.
By virtue of article 1 of the VCDR 1961, a diplomatic mission is constituted by diplomatic
staff,6 administrative and technical staff,7 and other service staff.8 The mission is headed by a

3
DJ Harris, Cases and Materials on International Law, op. cit. p. 361: ‘It would seem both to incorporate
clearly established rules and to fill in gaps or to spell out rules where practice was uncertain or inconsistent’.
4
Art. 2 VCDR 1961
5
Art. 4 VCDR 1961
6
e.g. the head of the mission, counsellors, attachés.
7
e.g. clerical and secretarial staff, translators, archivists.
8
e.g. drivers, porters, receptionists, kitchen staff, wireless technicians.
person charged by the sending state with the duty of acting in that capacity.9 The head of a
mission is deemed to take up his functions in the receiving state upon presentation of
credentials. Article 14 of the VCDR 1961 divides the heads of diplomatic missions into
three classes, in their order of precedence, as follows:
(a) Ambassadors, nuncios or other heads of mission of equivalent rank10;
(b) Envoys, ministers and internuncios; and
(c) Chargés d’affaires.
The first two classes (a) and (b) are accredited to Heads of state. The consent of the receiving
state must be obtained before a person can be appointed as head of a diplomatic mission to
that state.11 Thus, ‘it is customary for a named individual to be in charge of a diplomatic
mission.’12 On the other hand, chargés d’affaires are accredited to Ministers for Foreign
Affairs. A chargé d’affaires ad interim will act as the head of the mission whenever the post
is vacant or the head of the mission is unable to perform his functions.13
The functions of a diplomatic mission are specified in article 3 of the VCDR 1961. These
functions include: representing the sending state in the receiving state, protecting in the
receiving state the national interests of the sending state within the limits permitted by
international law, negotiating with the Government of the receiving state, ascertaining by
lawful means conditions and developments in the receiving state and making reports to the
Government of the sending state, and promoting friendly relations between the two states.
The receiving state may at any time, by article 9 of the VCDR 1961, declare any member of
the diplomatic mission persona non grata. They may decide that such persons should be
removed from their territory. And they do not have to explain their decision.

b) on Consular Relations 1963

Consular relations are also established by mutual consent between states.14 Consuls must
have a commission from the sending state and the authorisation, or ‘exequatur’, of the
receiving state.15 The consent given to the establishment of diplomatic relations may be
regarded as consent to the establishment of consular relations.16 But the severance of
diplomatic ties does not necessarily mean the end of consular relations.17
Consular posts may be located, not only in the capital city of the receiving state, but in
important provinces as well. Consular posts are constituted, in order of hierarchy, by the
consular-general, consuls, vice-consuls and consular agents.18 The above classes of heads of
consular posts are set out in article 9 of VCCR 1963. Consuls represent the sending state in

9
Art. 13 VCDR 1961
10
The designation ‘High Commissioner’ is peculiar to commonwealth countries. The term is not used in the
Convention. But High Commissioners are of equivalent rank with ambassadors and nuncios.
11
Art. 4 VCDR 1961
12
Shaw, op. cit., p. 671: ‘When, in 1979, Libya designated its embassies as ‘People’s Bureaux’ to be run by
revolutionary committees, the UK insisted upon the nominations of a named person as the head of the mission’.
13
Art. 19 VCDR 1961
14
Art. 2 (1) and 4 VCCR 1963
15
Art. 10, 11 and 12 VCCR 1963
16
Art. 2(2) VCCR 1963
17
Art. 2(3) VCCR 1963
18
Art. 1(1)(a) VCCR 1963
another state in generally administrative ways. Under article 5 of the VCCR 1963, consular
functions include: protecting in the receiving state the national interests of the sending state
within the limits permitted by international law, and promoting friendly relations between the
two states, ascertaining by lawful means conditions and developments in the receiving state
and making reports to the Government of the sending state, issuing passports, visas or other
travel documents, assisting nationals of the sending state, acting as notary and civil registrars
to legitimize documents, and performing other lawful administrative functions which may be
necessary for the maintenance of consular relations.

iii. Nigeria’s Diplomatic Immunities and Privileges Act

An Exclusive Legislative List is provided in Part I of the 2nd Schedule to the Constitution.19
Only the National Assembly can legislate on matters contained in the List. No House of
Assembly can do so. It is beyond their legislative powers. Diplomatic, consular and trade
representations fall under the Exclusive Legislative List. It is item number 20. This means
that legislations relating to diplomatic, consular and trade representations can be passed only
by the National Assembly in the form of an Act. At present, Nigeria’s Diplomatic Immunities
and Privileges Act can be found in Chapter D9 of the 2004 compilation of the Laws of the
Federation. It applies throughout the Federation.

iv. Comments
When we talk of diplomacy, we are not talking about a mystery but a well-known art: a
practice which involves the intelligent management of international relations by state
representatives. The aim is to achieve a desired goal through peaceful means. This requires
skill. Diplomacy is the preoccupation of diplomats. It is an element of national power.20 The
1961 Convention points to the character of diplomatic mission as representing the state.21
Diplomats stand as direct substitutes for their sovereign states. In contrast, consuls handle
everyday, run-of-the-mill administrative issues such as issuing passports, visas and other
travel documents, and assisting nationals of the sending state. Consuls are not diplomatic
agents. They perform various services for a state or its subjects in another state, without,
however, representing the former in the full sense.22 In other words, the representative
character of consuls is secondary to that of diplomatic agents.23 T.J. Lawrence says simply
that ‘Consuls are commercial, not diplomatic agents.’24 Consuls perform what I may
unguardedly refer to as ‘housekeeping duties’.25
Early on it has been mentioned that certain immunities and privileges are given to state
representatives to enable them to function efficiently. These are given as a matter of
expediency, not to benefit individuals. So immunities and privileges will not be granted in
excess of their utility. That would be too much. Many evils would be carried out. And there
19
Constitution of the Federal Republic of Nigeria 1999 (as amended)
20
Hans J. Morgenthau describes diplomacy in this way in his paper, The Future of Diplomacy
21
Shaw, op. cit. p. 670
22
J.L. Brierly, The Law of Nations 216 (5th Edition, 1955), cited in the Black’s Law Dictionary, 9th Edition, at
pages 357-358.
23
Constantin Economides, “Consuls,” in 1 Encyclopedia of Public International Law 770 (1992)
24
T.J. Lawrence, A Handbook of Public International Law, (10th Edition, 1925) at 86-87
25
In the Public International Law lecture held on November 29, 2016, Dr. Jimmy Chijioke used this phrase to
explain the difference in diplomatic and consular functions.
would be no penalty. It is arbitrariness of the worst description. International relations would
be much poorer.
No doubt the more far-reaching functions are performed, not by consuls, but by diplomats.
Diplomats are at the heart of international relations. They work directly within the vast jungle
of diplo-politics. As Shaw puts it: ‘Diplomatic relations have traditionally been conducted
through the medium of ambassadors and their staffs, but with growth of trade and
commercial intercourse the office of consul was established and expanded.’26 Only a
diplomat can negotiate with the Government of the receiving state.27 Diplomats are capable
even of exercising consular functions.28 To an imagination of any scope therefore, diplomats
occupy on a higher pedestal than consuls. Their status and the important nature of their
functions require diplomats to have a more ‘absolute’ immunity than consuls. So once a
diplomat is accepted as persona grata by the receiving state, he has diplomatic immunity.29
‘It is an issue of practical convenience.’30

2. Immunities and Privileges

The word ‘immunity’ refers to an exemption from a specific provision of law. It is a shield
from liability in the course of job performance; an exception from a duty or service of
process. The international community observes the immunity of diplomats and consular
agents. The practice is based largely upon the principle of reciprocity: ‘just as you want men
to do to you, do the same way to them’ (Luke 6:31). A state must not do to foreign
representatives what it would not want done to any of its own representatives. The protection
of foreign representatives in Nigeria will ensure the protection of our own representatives
abroad. To use Lord Denning’s aphorism, it is simply ‘tit for tat.31
Already, it has been shown that the immunities are intended to shelter foreign officials from
any interference that may jeopardize the accomplishment of their official functions: ne
impediatur officium.32 Diplomats and consuls must not interfere in the internal affairs of the
receiving state. They must respect the laws and regulations of the receiving state.33 No
diplomat or consul should ever abuse his immunity. But diplomatic immunities and consular
immunities are quite different. The extent of protection provided for diplomats and consuls
respectively varies. The degree of immunities and privileges of the former are much larger in
scope: they measure over and above consular immunities.

i. Use of national flags and emblems (coat-of-arms)

Unlike consuls, diplomats are not mere representatives. A diplomat is, in essence, the
physical image of the sending state; an embodiment of the sending state. A diplomatic

26
Shaw, op. cit. p. 669
27
Art. 3(c) VCDR 1961
28
Art. 3 VCCR 1963: ‘Consular functions are exercised by consular posts. They are also exercised by
diplomatic missions in accordance with the provisions of the present Convention’.
29
R v. Lambeth JJ, Ex-parte Yusufu [1985] Crim. L.R. 510 QBD. In this case, it was held that a diplomat has
diplomatic immunity, not from the time he is appointed, but when the receiving state accepts him.
30
Shaw’s words which are echoed here have been quoted earlier in this work.
31
Lord Denning, MR, Landmarks in the Law, (Oxford University Press, 2011) page 252
32
The need to prevent possible interference in official functions
33
Art. 41(1) VCDR 1961; art. 55 (1) VCCR 1963
mission therefore has the right to use the flag and emblem of the sending state on its
premises. This right is also extended to the head of the mission. The head of the mission can
display the national flag and emblems at his residence and on his means of transport. For this
right is vested, by article 20 of the VCDR 1961, in ‘the mission and its head’.
The right to use national flags and emblems does not appear to be vested in consular posts,
strict sensu. Under the VCCR 1963, it is the sending state, and not the consular post, that is
recognised as having this right which may exercise in accordance with the article. Article 29
(1) provides that: ‘The sending state shall have the right to the use of its national flag and
coat-of-arms in the receiving State in accordance with the provision of this article.’34 In
contrast, article 20 of the VCDR 1961: ‘The mission and its head shall have the right to use
the flag and emblem of the sending state on the premises of the mission, including the
residence of the head of the mission, and on his means of transport’.
Furthermore, article 29(2) of the VCCR 1963 permits the flag to be flown and the coat-of-
arms to be displayed on the building occupied by the consular post and at the entrance door.
The head of the consular post can also display the flag and coat-of-arms at his residence. And
national emblems may be displayed on his means of transport when used on official business.
This suggests that a vehicle, not being used by the head of a consular post on official
business, cannot display the national flag or coat-of-arms of the sending state. The right of
diplomats is not so qualified.
It can be argued that the extent of the right to display the national flag and emblems of the
sending state is more limited in the case of consular posts. Further support for this position
can be found in article 29(3) of the VCCR 1963: the right to display the flag or coat-of-arms
at consular posts, the residence of the head of the consular mission and on his mode of
transport is subject to the ‘laws, regulations and usages of the receiving state’. This right of
the diplomat, who is an embodiment of the sending state, is not so qualified.

ii. Inviolability of premises

This class of immunity is attached to the area within a receiving state where a diplomatic
mission is located. Under article 22(1) of the VCDR 1961, diplomatic premises are
inviolable. Agents of the receiving State are forbidden from entering them, except with the
consent of the head of the mission. The host country cannot make the decision to enter the
premises, seize, search and arrest. Not without the consent of the head of the mission. Even
more, the host country is duty-bound to protect the premises against ‘any intrusion or damage
and to prevent any disturbance of the peace of the mission or impairment of its dignity’.35 It is
a special duty which, by article 30 of the VCDR 1961, extends to the private residence of a
diplomatic agent.36 On November 2, 1979, several hundred Iranian students and other
demonstrators hijacked the US embassy in Tehran by force. This was done to protest the
admission of the deposed Shah of Iran into the US for medical treatment. Iranian security
forces simply departed from the scene. They did not oppose the protestors. The International

34
In contrast, article 20 of the VCDR 1961: ‘The mission and its head shall have the right to use the flag and
emblem of the sending state on the premises of the mission, including the residence of the head of the mission,
and on his means of transport’.
35
Art 22(2) VCDR 1961
36
But the ‘premises of the mission’ does not include the private residence of a diplomatic agent other than the
head of the mission: Intpro Properties Ltd v. Sauvel [1983] QB 1019, CA
Court of Justice condemned this action.37 When in 1965 the US embassy in Moscow was
attacked by students, the USSR expressed regret. The Russians promised to put in stricter
measures of protection. They also paid compensation for the property damage.38
However, for article 22 of the VCDR 1961 to apply, the premises must in fact be used by a
diplomatic mission. In Westminster County Council v. Government of Iran39 it was held
that premises of the Iranian Embassy which had been burned down did not fall within art. 22.
Another example of this is the case of Agbor v. Metropolitan Police Commissioner.40 Here,
a house in London was bought by the government of Eastern region of Nigeria. But a new
arrangement was made whereby an official of the Federal Government occupied the ground
floor. A civil war eventually broke out the country when the Eastern region (which became
known as Biafra) tried to break away from Nigeria. During this time, a diplomat of the
Federal Government continued to stay on the ground floor of the London house. It was used
as his residence.
On February 4 1969, the diplomat left the premises. He took his belongings with him. Some
‘Biafrans’ got into the house using a spare key. They placed Mrs Agbor and her family in the
ground floor. This was bad. The Nigerian Government still wished to continue occupying the
premises. A letter was written to the Foreign Office. In it, the Government claimed that the
house was the residence of one of Nigeria’s administration attaches. They asked for help in
recovering the premises on the basis of diplomatic protection. So the Foreign Office
contacted the Home Office. Soon the Commissioner of the Metropolitan Police was asked to
remove Mrs. Agbor and her family. And he did.
The English Court of Appeal found that letter written by the Nigerian High Commission to
the Foreign Office was inaccurate. Lord Denning, MR delivered the judgment: the house was
not, at the material time, the residence of Nigeria’s diplomatic agent. As such, there was no
basis for the claim that the premises were inviolable. The turbulent Master of the Rolls41
added that even if it had been the private residence of a diplomatic agent, he was
‘not satisfied that the [Diplomatic Privileges] Act of 1964 gives to the executive any
right to evict a person in possession who claims as of right to be in occupation of the
premises. It enables the police to defend the premises against intruders. But not to turn
out people who are in possession and claim as of right to be there.’42
Even then, diplomatic premises must not be used capriciously. The provision of article 41(3)
of the VCDR 1961 is that diplomatic premises are not to be used in any manner incompatible
with the functions of the mission. Wrongful use of diplomatic premises is an abuse of
diplomatic immunity. This may justify entry into the premises. The diplomatic premises
could lose its ‘inviolability’. For instance, in 1929, French officials entered into the Soviet

37
US Diplomatic and Consular Staff in Tehran Case (US v. Iran) ICJ Reports 1980, p.3. The ICJ decided that
Iran had violated obligations owed by it to the US under international conventions in force between the two
countries, as well as under long established rules of general international law. (Shaw, International Law, p. 371-
373)
38
Reported in Shaw, International Law, op. cit. p. 367
39
[1986] 2 All ER 284. At p. 289, Peter Gibson, J stated: ‘It seems to be clear beyond argument that the
premises have ceased to be used for the purposes of the mission, and in those circumstances the provisions of
article 22 have no application to the premises’.
40
[1969] 2 All ER 707
41
Lord Denning refers to himself in this way in his book, The Discipline of the Law (Oxford University Press,
2004 reprint) at page 313. The phrase is derived from Henry II of Thomas a Becket: ‘Who will free me from this
turbulent priest?’
42
(supra) at p. 710
Embassy in Paris after allegations that persons were being detained and executed there. The
French argued that the intervention was consistent with international law ‘because no
civilised state could permit a foreign legation to be made a place of imprisonment, or, a
fortiori, a place of execution’.43 Then in 1973, Pakistan discovered that the Government of
Islam had hoards of arms in its embassy in Islamabad. They went in and actually found
hoards of illegal arms there. The Iraqi ambassador was declared persona non grata.44
But there are only a few circumstances which can justify entry into diplomatic premises. As a
rule, diplomatic premises are to be respected at all times.45 Such a high level of immunity,
inviolability and protection is afforded to the premises of a diplomatic mission that the
premises, their furnishings and other property thereon, including the means of transport are,
by article 22(3) of the VCDR 1961, completely immune from search, requisition, attachment
or execution. Diplomatic premises are almost sacred. There was an incident on April 17,
1984 which might help to illustrate this. It involved the Libyan People’s Bureau in London.
Lord Denning told stories admirably. He was very good with words. In his Landmarks of the
Law at pages 247-248, he reports the 1984 incident as follows:
‘Libya did not have a proper embassy here. But they had a building here in St.
James’s Square which was called the Libyan People’s Bureau. At first it was not
recognized as a diplomatic mission, but afterwards many countries, including Great
Britain, accorded it diplomatic status. And several of the staff were accredited as
diplomats entitled to diplomatic privilege. At 10 am on 17 April 1984 there was a
peaceable demonstration in St. James’s Square outside the Libyan People’s Bureau.
Some Libyan residents in this country were demonstrating so as to show their
disapproval of the Gaddafi regime in Libya. The police had been forewarned. They
were firmly in control. There was no problem of public order. Suddenly, without any
warning, a machine-gun opened fire. A hail of bullets came from a first-floor window
of the Bureau. They stuck down people in the Square. Twelve were wounded. A
woman police-constable, Yvonne Fletcher, was shot through the stomach and died
shortly afterwards. You might have thought that our police would have entered the
building at once – in defence of our people – and arrested the miscreants. But no.
None of our police or security forces entered the building. No one was arrested or
searched. The premises were kept under strict surveillance but that was all. After a
week or two, on 26 April 1984, the people in the building were allowed to leave. All
their belongings went also, weapons and all, in ‘diplomatic bags’ alias crates. They
walked free under police protection from the building, into cars, on the Sunningdale

43
DJ Harris, Cases and Materials on International Law, op. cit. page 364. The International Court of Justice has
now made it well known that no embassy should be converted into a ‘prison’: Asylum case ICJ Rep [1930]
206. That would be an abuse of diplomatic immunity.
44
Lord Denning, Landmarks in the Law, op. cit. page 251. Also reported in DJ Harris, Cases and Materials on
International Law, op. cit. Lord Denning argued that ‘the so-called principle of inviolability is subject to many
exceptions in international law which are written into the convention when the position is abused by those of the
sending territory’. One of them is the exception of emergency, such as where there is a fire in an embassy which
would spread to nearby buildings, or in the case of a drunken diplomat with a loaded gun in a public square.
Another exception is that of self defence. Lord Denning argued that Hugo Grotius himself endorsed the
principle of self-defence. (Landmarks in the Law, page 250)
45
Countries have not always obeyed this rule: the 1979 invasion of the US embassy in Tehran, the 1980
invasion of the French embassy in Monrovia by Liberian soldiers, and the 1989 invasion and search of the
residence of the Nicaraguan ambassador in Panama by US troops, are only a few examples. In my view, the
disobedience should not invalidate the rule. The rule is based on reciprocity. So consequences (sanctions) should
normally follow where it is disobeyed.
 where there were questioned by the police, on to Heathrow and on to an aircraft for
Libya. Not one of them will ever be brought to justice.
All the ordinary people in England were astonished. Why were these murderers
allowed to go free? The reason given by the Government was that they were covered
by diplomatic immunity. On the television screen extracts were shown from the
Vienna Convention of 1961, saying that the premises were ‘inviolable’; and that the
persons of the diplomats were ‘inviolable;’ and that diplomatic bags could not be
‘opened or detained.’46
The above case is very controversial. Still, it demonstrates the respect which is accorded to
diplomatic premises. Another – perhaps less controversial – case study happened in 1896. It
involved Sun Yat Sen, a Chinese national.47 Mr Sen was in no way connected with the
Chinese Embassy in London. Yet, he was held in there against his will. The British court
refused to issue a writ of habeas corpus. Wright, J doubted ‘the propriety of making any order
or granting any summons against a foreign legation’. The premises were inviolable. The
incident was eventually resolved through diplomatic means.48
One more case study is interesting. It is the Belgrade incident of 1999. In that year, a United
States missile hit the Chinese embassy in Belgrade during the Kosovo crisis. This led to a
riot. The US embassy and several consular buildings in China were damaged. But the US
claimed that the missile strike was an accident. They apologised, and agreed to pay $28
million compensation for the damage to the embassy. China would also pay $2.876 million as
compensation.49
It is clear that the immunity of diplomatic premises is somewhat absolute. Consular
immunity, on the other hand, is more limited in scope. Already article 31(1) of the VCCR
1963 states that ‘The consular premises shall be inviolable to the extent provided in this
article’. Article 31(2) forbids the receiving state from entering the part of consular premises
which is used exclusively for the purpose of the work of the consular post. The consent of
either the head of the consular post or his designee, or of the head of the diplomatic mission
must first be obtained. In other words, the inviolability of a consular post covers only parts of
the building where purely consular activities are performed.
In addition, the receiving state is allowed to presume consent ‘in case of fire or other disaster
requiring prompt protective action’. It is not the same with diplomatic premises.50 The
receiving state is not permitted to presume the consent of the head of the diplomatic mission,
and enter the premises. Not even in the cases or emergency. Sometime ago, a fire broke out in
the American embassy in Moscow. The American ambassador did not give his consent. No
Russian agent was allowed to enter the premises. There was a fire. It was certainly an

46
The incident is reported, though less colourfully, in Shaw’s International Law at page 673. It also appears in
Umozurike’s Introduction to International Law and DJ Harris’ Cases and Materials on International Law.
47
The Sun Yat Sen incident is reported in Shaw’s International Law at page 671 as well as DJ Harris’ Cases
and Materials on International Law page 367
48
But not before the British Government had condemned this ‘abuse of diplomatic privilege’ and ‘flagrant
violation of municipal and international law’. It added that: ‘If persisted or repeated, it would justify the use of
whatever measures might be necessary for the liberation of the captive, and a demand for the immediate
departure from this country of any persons responsible for his imprisonment.’ (DJ Harris, Cases and Materials
on International Law page 367)
49
It is reported in Shaw, International Law, op. cit. p.367
50
Arguments have been made against the inviolability of diplomatic premises without exception. An example is
the one put forward by Lord Denning. Yet it appears that diplomatic premises are inviolable.
emergency. Yet the Russians did not step a foot into the embassy. Not even the Russian
firemen. None dared to defy the inviolability of the embassy. If it had been a consular post,
then the Russians could have entered the premises. The consent would have been safely
assumed.
Finally, article 31(4) of the VCCR 1963, provides immunity for consular premises, their
furnishings, and property thereon ‘from any form of requisition for purposes of national
defence or public utility.’ It goes on to state that ‘if expropriation is necessary for such
purposes, all possible steps shall be taken to avoid impeding the performance of consular
functions, and prompt, adequate and effective compensation shall be paid to the sending
State. Article 22(3) of the VCDR 1961 had pronounced with force that diplomatic premises,
their furnishings and other property thereon, and the means of transport to the mission ‘shall
be immune from search, requisition, attachment or execution’. There is a plain difference in
the extent of immunity: consular immunity appears to be narrower than that of diplomatic
immunity yet again.
In his Cases and Materials on International Law, DJ Harris explains that:
An amendment to the [1961] Convention to require the head of a diplomatic mission
to ‘co-operate with the local authorities in the case of fire, epidemic or other extreme
emergency’ was not adopted at Vienna. In the International Law Commission it had
been suggested that “[i]t was hardly conceivable that a head of mission would fail to
co-operate... in an emergency” and that the sanction of declaring him persona non
grata would be available if he did. In addition, the fear was that “if specific
exceptions were made in the Convention this would give... a certain power of
appreciation to the receiving state which it was thought might... be undesirable.”

iii. Fees and charges

Diplomats have complete fiscal immunity. They are free from all dues and taxes. Article 28
of the VCDR 1961 provides that: ‘The fees and charges levied by the mission in the course
of its official duties shall be exempt from all dues and taxes.’ Consular posts may also, by
article 39(1) of the VCCR 1963, levy fees and charges in the receiving state ‘in accordance
with the laws and regulations of the sending state for consular acts’. Such fees and charges
are exempted only from dues and taxes in the receiving state.51

iv. The archives and documents

The Vienna Conventions provide for the inviolability of the archives and documents of the
diplomatic mission, as well as consular archives and documents. Article 24 of the VCDR
1961 states clearly that ‘The archives and documents of the mission shall be inviolable at any
time and wherever they may be’. Likewise, article 33 of the VCCR 1963 reads: ‘The
consular archives and documents shall be inviolable at all times and wherever they may be’.
Notably, article 1(1) (k) of the VCCR 1963 defines ‘consular archives’ to include ‘all the
paper, documents, correspondence, books, films, tapes and registers of the consular post,
together with the ciphers and codes, the card-indexes and any article of furniture intended for

51
Article 39 (2) VCCR 1963
their protection or safekeeping’. But the VCDR 1961 does not define ‘diplomatic archives’.
That is, the 1961 Convention does not, by way of definition, limit the categories of what
items would constitute ‘diplomatic archives’.

v. The diplomatic bag and the Consular bag52

As a rule, diplomatic bags (or crates) cannot be opened or detained. This is contained in
article 27(3) of the VCDR 1961. The wording of the article tends to suggest that diplomatic
bags are ‘inviolable’ in all circumstances without exception. Without an advisory opinion
from the International Court of Justice, it is very difficult to make any rival argument. The
immunity is complete. In any case, diplomatic bags must bear ‘visible external marks of their
character’ and ‘contain only diplomatic documents or articles intended for official use’.53
Consular bags are also required to bear visible external marks of their character.54 And
consular bags are inviolable provided that they ‘contain only official correspondence and
documents or articles intended exclusively for official use’. Like diplomatic bags, the
consular bag is usually not opened or detained. But this is not always the case, for if the
competent authorities of the receiving or transit state have reason to believe that the bag
contains something other than official correspondence and documents, they may request that
the bag be opened in their presence by an authorised representative of the sending state. If
this request is refused by the authorities of the sending state, the bag is to be returned to its
place of origin. The practice is permissible under article 35(3) of the VCCR 1963 which
states:
‘...Nevertheless, if the competent authorities of the receiving State have serious reason
to believe that the bag contains something other than correspondence, documents or
articles referred to in paragraph 4 of this article, they may request that the bag be
opened in their presence by an authorised representative of the sending State. If this
request is refused by the authorities of the sending State, the bag shall be returned to
its place of origin.’
Consular bags are not always inviolable, as diplomatic bags would appear to be. Two rather
strange historical examples serve to illustrate the point. The first incident happened in 1965.
It has been dubbed ‘the man in the trunk incident’. Some Egyptian agents in Italy abducted
one Mordecai Luke, an Israeli national. Mr. Luke was locked away in a trunk. And the trunk
was labelled ‘diplomatic mail’. It was addressed to the Egyptian Foreign Ministry in Cairo.
Italian officials at the airport soon grew suspicious. They opened the trunk. And Mr. Luke
was released from captivity. The Egyptian ambassador was full of denial. He claimed that the
trunk was not the same one that left the embassy for the airport. Still, he and two others were
expelled from Italy.
The other incident happened in 1984. Nigeria was at the centre of it all. The turbulent Master
of the Rolls55 recounts the incident in his Landmarks in the Law56:

52
The diplomatic pouch or valise diplomatique
53
Art. 27(4) VCDR 1961
54
Art. 35(3) VCCR 1963
55
This term is derived from Henry II of Thomas a Becket: ‘Who will free me from this turbulent priest?’ Lord
Denning, MR uses it to refer to himself in his book, The Discipline of the Law (Oxford University Press, 2004
reprint) at page 313
 ‘On Thursday 5 July 1984, about midday, a rich Nigerian Mr Umasru Dikko was
receiving guests at his expensive London house. He was surrounded and overpowered.
Drugs were pumped into him. He was made unconscious and bundled off in a van. He
was taken to a place where two large wooden crates were awaiting his arrival. His
unconscious body was packed into one of these. Together with a man who was fully
conscious and had drugs and syringes. Two other men – fully conscious – were packed
into the other crate. At about 4 pm these two large crates arrived at Stanstead airport.
They were to be loaded on a Nigerian Airways cargo aircraft. Our police had been told of
Mr Dikko’s disappearance and were on the look out. Some members of the Nigerian High
Commission were already at Stanstead. Our police opened the crates and found the
contents. They took the unconscious Mr Dikko to hospital. They arrested the others. The
truth then came out. The Nigerian authorities regard Mr Dikko as a conspirator who had
robbed Nigeria of vast sums of money and hoarded them in this country and elsewhere.
They felt that extradition proceedings would mean long delay and much uncertainty. So
they took this extraordinary means of getting him back to Nigeria. As a result of inquiries,
four men, three Israeli nationals and one Nigerian national, have been charged with
kidnapping and with administering drugs with intent to kidnap. They have not yet been
brought to trial the Nigerian Government are applying for the extradition of Mr Dikko.57
They deny that the High Commissioner or any of their responsible Ministers were
involved in the kidnapping.
It was said that these crates were marked ‘diplomatic property,’ but they did not have the
visible markings that a diplomatic bag normally has, and there was no courier such as
normally accompanies a diplomatic bag. So our police were quite entitled to open them.
But if the diplomatic markings had been in order, would these crates have been free from
search? Would the Vienna Convention serve to cover them? I hope not.”58
The point here is that consular bags are more immune, but to a lesser degree than diplomatic
bags.

vi. Personal inviolability

Under article 29 of the VCDR 1961, ‘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 take all appropriate steps to prevent any attack on his person, freedom or
dignity.’ The Libyan People’s Bureau incident discussed earlier illustrates this. Diplomats
cannot be arrested or tried. The receiving state can only declare such persons persona non
grata. The immunity is more or less absolute.
Consular agents do not enjoy such a high level of immunity. They are only free from criminal
and civil jurisdiction in respect of acts done in the official exercise of their consular
functions. By virtue of article 41(1) of VCCR 1963, consuls are not ‘liable to arrest or
detention pending trial, except in the case of grave crime and pursuant to a decision by the

56
pages 252-256
57
Shaw, op. cit. reports at p. 369 that: ‘Following the incident, two members of the Nigerian High Commission
were expelled and one of the kidnappers, who had unsuccessfully claimed diplomatic immunity, was sentenced
to 12 years imprisonment for attempted kidnapping’.
58
The incident is reported in Shaw’s International Law. It also appears in Umozurike’s Introduction to
International Law. But there are inconsistencies in the two author’s reports. So Lord Denning’s account of the
incident is preferred. It is detailed and very concise, although it reflects his predilections. I hope it is apt.
competent judicial authority’. Except in such a case, they may not committed to prison and
are not ‘liable to any other form of restriction on their personal freedom save in execution of
a judicial decision of final effect’.59 Consuls can therefore be arrested in the case of a grave
crime60, or by order of a court of competent jurisdiction. In his International Law Shaw at
page 690 explains:
‘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. If,
however, criminal proceedings are instituted against a consul, he must appear before the
competent authorities. The proceedings are to be conducted in a manner that respects his
official position and minimises the inconvenience to the exercise of consular functions.
Under the 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 704 F. Supp. 521 (1989); 199 ILR, p. 121, 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.’

vii. Immunity from jurisdiction

Diplomats are exempted from the civil and administrative jurisdiction of the receiving state.
No civil action of any kind as regards debts and the like can be brought against them in the
civil courts of the receiving state. They cannot be arrested for debts, nor can their furniture,
their cars and the like be seized for debts. They cannot be prevented from leaving the country
for not having paid their debts. Nor can their passports be refused to them on this account.
Article 31(1) of the VCDR 1961: ‘A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving state.’ The receiving state has no right, in any
circumstances whatever, to prosecute and punish diplomats. The receiving state may only
request his recall or dismiss him at once by declaring him persona non grata. However,
diplomatic immunity can be waived. The immunity really belongs to the state. So it may be
waived by the State.61 The waiver will expose the diplomat to prosecution or litigation. In
1985, Zambia waived the immunity of a diplomat who smuggled cocaine to Britain in a
diplomatic bag. Thus, it will often be the policy of receiving states to request a waiver of
immunity in such cases, and if no waiver is forthcoming, normally to require the alleged
offender to leave the country.62
Under article 31(2) VCDR 1961 a diplomat is not obliged to appear as a witness in a civil
suit, criminal or administrative court, nor give evidence before a commissioner sent to his
house. Orders and regulations of the courts of the receiving states cannot be enforced against
diplomats. In Democratic Republic of Congo vs. Belgium judgment of February 14, 2002,
an internal warrant of arrest in absentia was issued in Brussels against Yerodia Ndombasi, the
Foreign Affairs Minister of the Congo. He was charged with serious breaches of the 1949
Geneva Conventions and international humanitarian law prior to his becoming a Minister.
This was punishable under Belgian law. The Democratic Republic of Congo complained of a
violation of diplomatic immunity. The ICJ ruled that the Minister was immuned for life for

59
Article 41(2) VCCR 1963
60
e.g. murder, rape, armed robbery, espionage.
61
R v. Kent [1974] 1 KB 454
62
White Paper, Diplomatic Privileges and Immunities (1985, Comd 9497) para 69
official acts performed while in office. And the issuance of the warrant violated the right of
the Democratic Republic of Congo. But if he chooses for himself to appear as a witness, the
court can make use of his evidence.

viii. Conclusion
A different measure of immunity and privileges is given to diplomatic agents and consular
agents. Two separate Vienna Conventions regulate diplomatic relations and consular
relations. The status of diplomatic agents and consular agents varies. The two perform
different functions. And their functions are of different worth. Thus, one enjoys a greater
quantum of immunity and privileges; the other has a lesser quantum of immunity and
privileges.

3. The Nigerian Version: Cap D9

Nigeria’s Diplomatic Immunities and Privileges Act also makes provisions for diplomatic
and consular immunity. It confers immunity on persons both natural and artificial. By virtue
of section 1, every foreign envoy and every consular officer, the members of the families of
those persons, the members of their official or domestic staff, and the members of the
families of their official staff shall be accorded immunity from suit and legal process and
inviolability of residence and official archives.63 As a result, an action brought against a
foreign envoy in Nigeria is not valid. It is void. For the court is robbed of its jurisdiction.64
However, diplomatic and consular immunity be waived by the sending state. A waiver by the
head or acting head of the mission is deemed a waiver by that State. At common law, it is
doubtful whether the head of the mission could waive his own immunity without the
authority of the sending state. Waiver of diplomatic or consular immunity must be express
and unqualified.65 The persons entitled to the immunity can waive same under section 2 and
15 of the Act which provide –
2. A foreign envoy or foreign consular officer with the consent of his Government
may waive any immunity or inviolability conferred by or under this Act on himself
and without the necessity of such consent may waive immunity or inviolability so
conferred on a member of his official or domestic staff, or on a member of his family
or the family of the member of his official staff.
15. Any organisation or person may waive any immunity, inviolability or privileges
conferred on it or him under this part of this Act.
The waiver of immunity under section 15 relates to international organizations and persons
connected therewith. Section 11(1) is very exact and precise as to which categories of
artificial persons are being protected under it. The section provides for ‘organizations’
declared by the order of the minister as being so constituted by sovereign powers or
commonwealth countries.

63
Dimitrou vs. Multichoice (Nig.) Ltd (2005) 13 NWLR (pt 943) 575
64
Noah vs. British High Commissioner (1980) 12 NSCC 205 at 266
65
Dimitrou vs. Multichoice (Nig.) Ltd (supra); Re Republic of Bolivia Exploration Syndicate Ltd [1914] 1 Ch
139; Re Suarez [1918] 1 Ch. 176 at 191
4. Conclusion
The immunities and privileges under the two Vienna Conventions and Nigeria’s Act revolve
around the immunity of diplomatic and consular representatives, the inviolability and
protection afforded to the premises which they use, and to certain property relating to their
functioning. But the quantum of immunities and privileges accorded to diplomats is very
different from that of consuls. I have dealt with that. The conclusion is irresistible: under the
Vienna Conventions, diplomats have a far more absolute immunity than consuls. Countries
all over the world have recognized the necessity for the immunity of state representatives.
Nigeria is not left out. Our Diplomatic Immunities and Privileges Act is a domestication of
the immunities and privileges of state representatives under international law. It gives effect
to relevant provisions of the two Vienna Conventions. But the focus of the Act is on
representatives from commonwealth jurisdictions.

5. References
In completing this work, I have made use of my lecture notes. They were quite
comprehensive. In addition, I have also consulted the following texts:
1. The Vienna Convention on Diplomatic Relations 1961
2. The Vienna Convention on Consular Relations 1963
3. Diplomatic Immunities and Privileges Act, Cap D9, LFN 2004
4. The Black’s Law Dictionary, 9th Edition
5. Malcolm N. Shaw, International Law
6. D J Harris, Cases and Materials on International Law, Sweet & Maxwell, 6th
Edition
7. U.O Umozurike, Introduction to International Law
8. Lord Denning, Landmarks in the Law
9. Antonio Cassese, International Law