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State Jurisdiction
State Immunity, Diplomatic Immunity Akehurst, Brownlie, Malcolm Shaw, Starke,

MOOC –International Law –

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State (Sovereign) Immunity

Rationale and basis of Jurisdictional Immunity to the Sovereign

Sovereignty until comparatively recently was regarded as appertaining to a particular individual

in a state and not as an abstract manifestation of the existence and power of the state. The
sovereign was a definable person, to whom allegiance was due. As an integral part of this
mystique, the sovereign could not be made subject to the judicial processes of his country.
Accordingly, it was only fitting that he could not be sued in foreign courts. The idea of the
personal sovereign would undoubtedly have been undermined had courts been able to exercise
jurisdiction over foreign sovereigns.

This personalisation was gradually replaced by the abstract concept of state sovereignty, but the
basic mystique remained. In addition, the independence and equality of states (Par in parem non
habet imperium ie an equal has no right over an equal), the principle of non-intervention ie the
matters related to the acts, policy and transactions of a foreign state should not stand to scrutiny
by the former state and Rule of comity and reciprocity (- i.e. the accepted rules of mutual
conduct as between states, which each state adopt in relation to other states and expects other
states to adopt in relation to it. It may otherwise be considered as an unfriendly act.) made it
philosophically
as well as practically difficult to permit municipal courts of one country to
manifest their power over foreign sovereign states, without their consent.
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In the Schooner Exchange vs MacFadden, Marshall CJ, -‘perfect equality and absolute
independence of sovereigns. . .have given rise to a class of cases in which every sovereign is
understood to waive the exercise of a part of that complete exclusive territorial jurisdiction,
which has been stated to be the attribute of every nation.’
Lord Browne-Wilkinson stated in Exparte Pinochet (No. 3) that, ‘It is a basic principle of
international law that one sovereign state (the forum state) does not adjudicate on the conduct of
a foreign state. The foreign state is entitled to procedural immunity from the processes of the
forum state. This immunity extends to both criminal and civil liability’

Lord Millett in Holland v. Lampen-Wolfe put the point as follows: State immunity. ..is a
creature of customary international law and derives from the equality of sovereign states. It is
not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has
chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United
Kingdom itself.'

Scope of Foreign States Immunity

1. Foreign states and foreign sovereign can initiate proceedings in other states but where a
foreign state begins a suit in the court of other state, the foreign state submits itself to the
ordinary incident of the suit, so that, for instance, a defendant might setup a set-off or
counter-claim arising out of the same matter or dispute, but not an independent and
unrelated cross-claim, the test being whether the cross claim was sufficiently connected
with or alike to the subject matter of the foreign state claim as to make it necessary in the
interest of justice that it should be submitted along with that claim. The justification of
this principle was that if a foreign state or foreign sovereign voluntarily chooses to
litigate, it has to abide by all the rules like any other litigant and ultimately take all the
consequences of the decision.

2. Foreign sovereign/officials enjoy Immunity ratione personae (immunity granted by

reason of status of the person for eg as head of the state). It covers all acts by such person
during the period of office, whether performed in a private or official capacity, given that
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the rationale is to prevent interference with the performance of the official’s role (and by
extension with the sovereignty of the sending state). foreign state officials should not be
impeded in the performance of their functions by a host state’s exercise of adjudicative
(judicial) or enforcement jurisdiction (eg. enforcement of a court’s judgment) over them.
(Immunity does not bar prescriptive (legislative) jurisdiction, however; further foreign
officials are not exempt from compliance with the laws of the host state.)

Historically, immunity ratione personae was exemplified in the head of state, who was
seen as personifying the state itself. However, the law has developed to recognize
personal immunities for other high-ranking state officials, including heads of
government, foreign ministers, and others. There are no settled criteria for determining
which types of official enjoy personal immunity, but it is clear that the immunity belongs
to the state and not the individual. Once the period of office ends, immunity ratione
personae will expire; however, immunity ratione materiae (immunity by reference to
subject matter) continues if the acts concerned are such that state immunity attaches. In
all cases the immunity can be waived by the state.

The State Immunity Act 1978 of UK specifically extends privileges and

immunities ratione materiae to ‘the sovereign or other head of that state in his public
capacity’. While in office, such officials will also enjoy immunity ratione personae. It
must be emphasized, however, that former heads of state occupy a distinct category and
enjoy only immunity ratione materiae; absolute personal immunity ceases on
termination of office

3. In Criminal Matter: It is well established that serving heads of state enjoy

immunity ratione personae from foreign criminal jurisdiction for international crimes as
they do for domestic crimes. Other ‘holders of high-ranking office in a State’ are also
now recognized as enjoying this same immunity, although given the functional basis for
recognition of immunity ratione personae the category of officials enjoying immunity on
these grounds has no obvious limit. It appears that this privileged group extends to heads
of government, defence ministers, and ministers for commerce and international trade.
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It is less clear whether international crimes committed by former officials before or

during their period of office will be covered by immunity ratione materiae, given that
immunity ratione personae will have ceased to apply. There are increasing examples of
state practice denying immunity in such circumstances, and some jurists go so far as to
suggest that there is an emerging norm of customary international law denying
immunity ratione materiae for international crimes.
The starting point for such arguments is normally the decision of the House of Lords
in Pinochet (No 3), refusing to uphold the immunity ratione materiae of a former head of
state in a prosecution for torture at international law. However, practice is not yet
sufficiently widespread or consistent.

This understanding is consistent with the practice of international criminal tribunals

denying immunity to those accused of having committed international crimes. Individual
state agents can commit crimes intuitu personae (by virtue of the person concerned), and
their status as agents generally will not be a defence against individual responsibility for
international crimes in an otherwise competent international forum. But the matter is
heavily dependent on the structure and legal foundation of the relevant tribunal, including
whether or not the UN Security Council is involved.

4. Foreign state sovereign cannot as a rule be sued in territorial states unless they voluntarily
submit to the jurisdiction of those courts either ad hoc or generally by treaty.

5. There is exemption of the person of the sovereign from arrest and detention within a
foreign territory that is, immunity from proceedings in personam. (see immunity to
individuals and crime above)

6. There is immunity of sovereign from proceeding in rem including immunity to property

within the territory of the state of the forum and public ships belonging to the foreign
state; Such proceedings if successful would have resulted in depriving the foreign state
and foreign sovereign of proprietary and possessory rights and of any rights of control.
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The English authorities laid it down that the courts would not by either process implead a
foreign state or foreign sovereign, in other words, they would not, against its will, make it
a party to legal proceedings whether the proceedings involved process against its
personality or aimed to recover from it specific property or damages. In the CRISTINA
case, it was held that a writ in rem for the recovery of possession of a vessel requisitioned
by a govt., impleaded that govt. that is, it amounted to prosecuting that government. since
it commanded the defendants to appear and to let judgment go by default, thus imposing
a clear alternative of submitting to jurisdiction or losing possession of the ship and
ancillary rights. The writ and subsequent proceedings were accordingly set aside. This
aspect of the rule of immunity was so strictly applied that process ever indirectly
impleading a foreign state or foreign sovereign was treated as to that extent bad. It was
consistent with such strict application that British and American courts should hold state
counsel commercial shops to be immune from all territorial process
With respect to proceedings in rem, immunity is assured if the foreign sovereign atleast
has the right to possession and control even if no title to the property claimed (for
example, it may be on rent). The foreign government is not bound to give complete proof
of its property and possessory title. Immunity is preferable to the entire judicial process
(jurisdiction of the court) and the execution of the judgement rendered ( Immunity from
execution). Therefore Courts donot allow the seizure or disposition or judicial disposition
of property which belongs to foreign state or sovereign or of which it is in possession or
control. If the foreign state or foreign sovereign had no title to the property alleged to be
impleaded, it should atleast show rights to possession or control in order to claim
immunity.

7. The legislative, administrative and executive acts of foreign state and its agents can not
be called into question by territorial states.
8. The immunity might be waived by express or implied consent. If express, the waiver led
to be made with full knowledge of its consequence and with full authority of the foreign
sovereign in question. The implied waiver depends upon all the circumstances of the
case. But a mere clause in a contract for the submission to the jurisdiction has not always
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been accepted as amounting to waiver. Waiver from jurisdiction does not automatically
include waiver from execution for which a separate waiver has to be accorded. If a
foreign state opts to sue in the territorial state, it would be bound by the ordinary
incidents of the suit, such as setoff or counterclaims by the opposite parties.

What amount to implied waiver depends upon circumstances of the case. Following have not
been held to be waiver:-

- submission to arbitration proceeding or even a subsequent application to set aside these

proceedings.

- Ceasure by the agent of the foreign state of a vessel within the jurisdiction

- Clause in the contract to which foreign sovereign was party, thereby it was argued that
the sovereign would submit to the jurisdiction of the territorial courts in matters arising
out of the contract.

Extent of State Immunity

As discussed above, the immunity was absolute earlier whether with respect to public matter (acts
jure imperii) or private nature (acts jure jentionis). Now restrictive immunity- restrictive and
relative doctrine.
Exceptions to the rule of immunity:
1. suits relating to the title to land within territorial jurisdiction, not being land on which
legation premises were established. The principle which was applied here was that the
local state too has an interest in its land to permit of any derogation from its jurisdiction
over suits concerned into the title thereto.
2. A fund in court (trust fund) was being administered in which a foreign state and
foreign sovereign was interested (but not if the alleged trustee happened also to be a
foreign sovereign government.)
3. Representative action such as debenture holder’s action, where a foreign state and
foreign sovereign was a debenture holder. The winding up of a company in whose assets
the foreign state and foreign sovereign claim that interest.
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The doctrine of Restrictive Immunity

The doctrine of restrictive immunity has been consciously developed by introducing the concept of
implied waivers and the activities of private law have been kept outside the scope of state immunity.
Distinctions have been made between jure imperii (public act) and jure gentionis (private act) and
immunity has been waived for jure gentionis.
Examples:-
1. Claim against the Empire of Iran case - Immunity not granted in case of payment of bills for
repair of legation premises done at the request of the ambassador.
2. The Philippine admiral (owner) v. Wallem shipping (hongkong ltd.). A foreign state could
not claim absolute immunity from jurisdiction when an action in rem was brought against a
vessel if that vessel was being put to commercial use by either the government of the state or
a third party.
3. Trendtex Trading Corp v. Central Bank of Nigeria- Central Bank established by Nigeria was
not a government dept., but a legal entity of its own right and therefore not entitled to
jurisdictional immunity. Lord Denning said if a govt. dept. goes into the market places of the
world and buys boots or cement as a commercial transaction, the govt. dept. should be
subject to all the rules of the market place. The seller is not concerned with the purpose to
which the purchaser intends to put the good.

4. Claim against the Empire of Iran- In determining the distinction between jure imperii and
jure gentionis, one should refer to the nature of state transaction resulting legal
relationship and not the motive or the purpose of the state activity.

5. I congresso del partido case (HOL)- Court must not only look at the nature of the contract
but also to the nature of breach. If a contract is in the nature of act jure gentionis, defence of
immunity may still succeed if the act in breach of contract is an act jure imperii. (eg
declaration of war )

Problem areas-
1. Statutes fail to solve the problem in case where the transaction was determined as jure
gentionis but becomes jure imperii at a later stage as happened in I congress case, where it
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was held that the plea of immunity will be available at any stage the state has acted as a
sovereign.
2. Issue relating to semi-government agencies or corporation. If semi-public corporation was
not of the character of dept. of state but simply separate judicial entity, the privilege of
judicial immunity does not attach.
Eg.- Krajina v. Taco Agency &Baccus case- It was a question of degree whether separate
judicial incorporation had proceeded so far as to deprive an agency and entity of its
character as a dept. of state or whether notwithstanding its incorporation, it still possessed
that character. A separate incorporated legal entity might by reason of degree of govt.
control over it nevertheless be an organ of the state.
A decisive criterion was whether a corporate entity was in effect the alter ego of a govt. In
Trendtex case, court held that the Bank of Nigeria was not a govt. dept. but a legal entity in
its own right and was not entitled to jurisdictional immunity in an action brought by the
plaintiff for honouring the letter of credit, a transaction which was commercial in nature.

Current legal situation

Legislation on relative immunity in UK, USA, Australia and Canada and Judicial Procedure in
Austria, Belgium, Denmark, Italy, Lebanon, New Zealand, Spain. European Union has European
Convention on state immunity 1972 and 1926, Brussels convention for unification of certain rules
relating to the immunity of state.

Efforts to bring Uniformity

UNGA adopted in December 2004 the UN Convention on Jurisdiction Immunity of States and
their Property. This convention was based on report prepared by adhoc committee, in turn based
on ILC’s work in 1991. This is yet to come into force. Article 11-15 of this convention excludes
immunity in cases related to employment, contracts, personal injuries or damage to property,
property claim, intellectual and industrial property, and participation in company or other
collective bodies.

In determining whether a contract or transaction is commercial, reference should be made

primarily to the nature of the contract, it’s purpose can also be taken into account if the
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parties to the contract so agree or if in the practice of the state of the forum, that purpose is
relevant to determine the non-commercial character of the contract or transaction. State property
is similarly exempted from any constraint, including attachment unless it is specifically in use or
intended for use for commercial purposes

Sovereign Immunity in India

Laws governing State Immunity

1) Section 86 of the Civil Procedure Code governs the issue of foreign state immunity and
the general rule under Section 86 states that no suit may be instituted against a foreign
state in India, except with the prior written consent of the government. In Mirza Ali
Akbar Kasani v United Arab Republic & Anr, a five-judge bench of the Supreme Court
held that section 86(1) CPC modifies the international doctrine of sovereign immunity to
a certain extent, and when a suit is instituted against a foreign state with the consent of
the government, it is not open for a foreign state to rely upon the doctrine of sovereign
immunity under international law.

Section 86(1) provides that ‘no foreign state may be sued in any court otherwise
competent to try the suit except with the consent of the central government [government]
certified in writing by a Secretary to that Government’; implying thereby that there is
immunity in the favour of foreign states from the jurisdiction of Indian courts, which
survives unless the government consents to a suit against a foreign state.
However, the proviso to section 86(1) exempts suits by tenants of immovable properties
held by foreign states from the requirement of obtaining the government’s prior consent.

Further, section 86(2) provides that the government shall not consent to a suit against a
foreign state unless certain conditions exist. Per section 86(2), the government may only
consent to a suit against a foreign state where the foreign state:

 has instituted a suit in a court against the person desiring to sue the foreign state;
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 by itself or another, trades within the local limits of the jurisdiction of the court;

 is in possession of immovable property situated within those limits and is to be sued with
reference to such property or for money charged thereon; or

 has expressly or impliedly waived the privilege accorded to it.

Section 86(6) of the CPC further stipulates that the government is obliged to provide a
reasonable opportunity of being heard to a person requesting the government’s consent
under section 86(1). In this context, the Supreme Court has held that the power conferred
on the government to refuse consent should be carefully exercised and so long as a case
fulfils the conditions specified in section 86(2), the government should normally accord
the consent to sue. It has been held that the power to refuse consent must be exercised in
accordance with the principles of natural justice and the order refusing the consent should
disclose reasons for the refusal (Harbhajan Singh Dhalla v. Union of India).

In addition to foreign states (including their organs, departments, instrumentalities), per

section 86(4) of the CPC, the immunity under section 86 is also available to rulers,
ambassadors, envoys, high commissioners of foreign states, and any such member of the
staff of the foreign state, or the staff or retinue of the ambassador or envoy or the high
commissioner of a foreign state, as the government may specify

2) On 12 January 2007, India became a signatory to the UN Convention on Jurisdictional

Immunities of States and Their Property, 2004. However, it is important to emphasise
that India has not proceeded to ratify this Convention and that the Convention itself is not
in force yet.

Restrictive Immunity in India

1. The privilege of sovereign immunity in India extends to matters relating to the

performance of sovereign functions of foreign states (jure imperii). What constitutes act
jure imperii ie sovereign functions, are left to the discretion of the court in absence of any
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legislation on the terms of British state immunity act or foreign sovereign immunities act
of the US. The courts take into account the nature of the purpose of the transaction as per
the Uttam Singh Duggal’s case.
2. As far as statutory exceptions to sovereign immunity are concerned, the proviso to
section 86(1) of the CPC provides that the government’s consent is not required in suits
instituted by tenants of immovable property held by foreign states. Thus, foreign states do
not enjoy sovereign immunity in tenancy disputes wherein the relevant state is the
landlord as regards the tenant.
3. Sovereign immunity has also been held not to apply to cases involving tenancy disputes in
immovable properties where the foreign state is the tenant (Syrian Arab Republic v AK
Jajodia). Under the provisions of section 86(2)(c) CPC, the government is also empowered
to grant consent to sue for such disputes.
4. Further, immunity is not available in cases involving commercial and contractual
transactions undertaken by foreign states and their instrumentalities in India.
5. Further, foreign states do not enjoy immunity in proceedings that are not suits or which,
whether suits or not, are governed by special statutes. For illustration, immunity has been
held not to apply to suits under the Carriage by Air Act 1972, and to proceedings such as
industrial disputes, admiralty actions in rem, consumer disputes, court proceedings relating
to arbitrations, derivative actions for protection of minority rights under the company law,
etc. (Uttam Singh Duggal and Co. Pvt. Ltd. V. USA agency in (USAID dept.)
Cases

Harbhajan Singh v. Union of India, 1987- Petitioner had performed maintenance work at the
Embassy of Algeria in New Delhi in 1976. Not paid, he requested external affairs ministers’
permission to sue. External affairs ministry refused on political ground as well
on ground that it has discretion to refuse under article 80(2). S.C held that sec. 86(2) related to
immovable property situated within limits of India. The petitioner is liable to be sued in this
country. The court directed the govt. to reconsider the matter in light of Lotus case.
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Century 21 Ltd. V. Union of India 1987- Ambassador to the Govt. of Afghanistan to be sued
for recovery of rent. Court took judicial cognizance of distinction regarding liabilities out of
sovereign acts of foreign states & liabilities arising out of commercial activities.

Raj Harinder Singh v. CIT,1972. The ruler of erstwhile state was held liable to pay income tax
for his personal income accrued in India. S.C held that section 86 does not enforce and absolute
prohibition against a ruler of foreign state being sued in India.

Indo-Portuguese v. Broges, 1960- If there has been a trust and if that trust is created by a
foreign sovereign, it does not mean that the foreign sovereign has created this trust in the
exercise of his sovereign powers. When a trust is created by a sovereign, the sovereign would be
no better than any other person with respect to the law of the country in which the charity is
created and is to be conducted.

Uttam Singh Duggal and Co. Pvt. Ltd. V. USA agency in (USAID dept.)- The appellants had
entered into a contract with the defendant to construct staff houses and apartments and the
contract contained a clause for arbitration by the contracting officer of the USAID mission in
India. On the refusal of the defendant to refer the dispute to the arbitration, the appellants
approached the court which rejected the defendant’s contention that in view of arbitration clause,
section 86 won’t be applicable. The court also rejected their contention that a building contract is
not a commercial or trading activity and hence restrictive immunity theory is not applicable. The
court stated that in order to differentiate between a sovereign act and private act, one will have to
look into the nature or to the purpose of the transaction. The transaction was purely construction
contract and it would best be termed a private commercial act.

Ehiopian Airlines v. Ganesh Narain Saboo- It was held that Section 86 of the CPC is not
applicable in the context of special legislation enacted by the Parliament subsequently, namely,
the Carriage by Air Act, 1982 and the Consumer Protection Act, 1986. However, the Supreme
Court further held that Ehiopian Airlines is not entitled to sovereign immunity with respect to a
commercial transaction is well in consonance with the growing body of international law
principles. The court also heeled that a company of a foreign State has a juristic personality
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distinct from its shareholders and even if the entire share capital of a foreign company is held by
a State or by an entity of the State that does not render the company a foreign State within the
meaning of Section 86(1) of the CPC.

Sharpoorji Pallonji and Company Vs Qatar

Qatar had engaged the services of the Company for interior decoration of its workplace. The
payment due for such services was in arrears and therefore the Company instituted a summary
suit against Qatar before the Single Judge, Bombay High Court ("Court") under Order XXXVII
of the Civil Procedure Code, 1908 ("CPC"), for the recovery of the Debt. Qatar raised a
preliminary objection as to whether such suit would be maintainable against it since it is a
'Foreign State' and that requisite permission for instituting a suit against a 'Foreign State' had not
been obtained from the Central Government under Section 86 of the CPC.

The Court dismissed the objection raised by Qatar stating that it was not necessary to obtain
consent as contemplated by Qatar to proceed with the suit. Moreover, the Union Ministry of
External Affairs had already stated that consent to institute the suit was not necessary in this case
and therefore the suit was held to be maintainable.

Qatar was aggrieved by the aforesaid decision and instituted an appeal before the Bench.

Qatar contended that it is a company owned and controlled by the State of Qatar and its ruling
family and therefore it is a 'Foreign State' within the meaning of Section 86 of CPC. It was the
contention of Qatar that the suit instituted in the original jurisdiction of the Court was not
maintainable in the absence of permission by the Central Government,

The Company objected to the maintainability issue raised by Qatar stating that they had sought
the consent of the Union Government in the Ministry of Law and Justice in a response to which
the Union Ministry of External Affairs communicated that upon consultation with the Legal and
Treaties Division they had concluded that Qatar does not fall within the purview of Section 86 of
the CPC and therefore the grant of permission for institution of the recovery suit was not
required.

DECISION
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The Court dismissed Qatar's appeal while stating the following reasons for its decision in its oral
judgment:

 The principle of sovereign immunity does not apply to Qatar as it is not a 'Foreign State' within
the meaning of Section 86(1) of the CPC. It held that Qatar being a company has a distinct legal
personality of its own which finds recognition in the contractual relationships into which it
enters.

 That the suit for recovery of the Debt was founded on a purely contractual and commercial
dealing between Qatar and the Company and such contractual relationships stemming from
business activities of Qatar in India would be subject to the jurisdiction of the competent courts
of India.

ANALYSIS

The basic premise on which the Bench dismissed the appeal is very clear that Qatar is a company
incorporated under the laws of Qatar and is a juristic entity which cannot be equated with a
'Foreign State'. This judgment has reiterated the often cited principle that a company has a
distinct personality independent of its shareholders. Moreover, the Court has clarified that no one
can evade responsibilities arising out of transactions of private and commercial nature by seeking
protection under the principles of sovereign immunity for sovereign states.

DIPLOMATIC AND CONSULAR RELATIONS

INTRODUCTION

Diplomacy as a method of communication between various parties, generally states, including

negotiations between recognised agents, is an ancient institution and international legal
provisions governing its manifestations are the result of centuries of state practice. The special
privileges and immunities for diplomats grew as a consequence of sovereign immunity and
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independence and equality of states and partly as an essential requirement of an international

system.

From time immemorial princes and kings sent messengers to their counterparts and received
them with due respect, granting them privileged status. To refuse envoys resulted in severing of
communication. Permanent agents were appointed in major foreign commercial centres and
ports by different countries to run their business, render aid and protect their citizens, as also act
as their representatives when required The diplomacy was bilateral in nature, secretive and
ceremonial.

The status and rules concerning such envoys and agents have always reflected the organisation,
structures, needs and types of relations between societies of their times. With the advent of the
modern territorial state in the 16th and 17th centuries, diplomatic and consular missions began
taking forms which in their general outlines, they have kept until now.

The more or less constant practice of states over that period led many eminent jurists from
Gentilis and Grotius to Bynkershoek and Vattel to formulate a number of rules which gradually
became norms of the diplomatic and consular laws.

In the early 19th century the rules relating to the rank of diplomatic agents were codified in the
Regulations adopted by the Congress of Vienna in 1815. A constant and general practice of
States in the field of diplomatic and consular relations also began to take shape at that time, This
was partly the result of the growing bureaucratization of the Ministries of Foreign affairs. While
the exchange of permanent diplomatic missions was becoming general practice and their role in
the conduct of international relations was also steadily increasing, simultaneously, the growth of
International trade furthered the extension of a network of consular posts enjoying more limited
immunities than diplomatic missions.

New Dimensions of Diplomacy:

- Quantitative growth in International society,

- Proliferation of external missions, both permanent and temporary,

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- Increase in number of diplomats,

- Heterogeneity of international community,

- Multilateralism and bilateralism -Embassies, consular posts, and unconventional resident

missions such as interests sections and representative offices.

- Multilateral Diplomacy: Ad hoc and standing conferences. Questions of procedure:

venue, membership, agenda, transparency, and above all decision-making. The triumph of
“consensus-decision making” and its various techniques.

- treaty making, varying subjects, requirement of experts, growth of International

organisations, quick communication- therefore requirement of different types of missions
such as permanent missions accredited to international organisations, ad hoc special
missions, delegations

Diplomatic versus Consular Relations-

Diplomats represent the sovereign whereas consuls are concerned with the interests of nationals
and of the sending state or city, they generally also look after commercial and trade interests of
the sending state.
However the distinction between these two categories have blurred in recent times. In the first
place, states directly involved in international trade entrust this to official diplomatic or
economic representations, rather than to consuls. As a result, consular posts in the capital or in
other important cities, distinct and separate from the embassy, are becoming redundant. On the
other hand, consular functions concerning individuals directly have considerably expanded due
to the development of international travel and migration

Codification

- In 1815, the Congress of Vienna clarified and codified the law relating to classification,
order and precedence of diplomatic envoys
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- 1961 Vienna Convention on Diplomatic Relations-declaratory of the customary laws and

partly progressive development of the law by filling gaps or by spelling out rules where
the state practice was uncertain or inconsistent.

- 1963- Vienna Convention on Consular Relations

- 1969- Convention on Special Missions

- 1973- Convention on the Prevention and Punishment of Crimes against Internationally

protected persons including diplomats

- 1975- Convention on the representation of states in their Relations with International

Organisations of Universal character

DIPLOMATIC RELATIONS
The Vienna Convention on Diplomatic Relations, 1961

Background
The Convention was adopted on 14 April 1961 by the United Nations Conference on
Diplomatic Intercourse and Immunities held at the Neue Hofburg in Vienna, Austria, from 2
March to 14 April 1961. The Conference also adopted the Optional Protocol concerning the
Acquisition of Nationality, the Optional Protocol concerning the Compulsory Settlement of
Disputes, the Final Act and four resolutions annexed to that Act. The Convention and two
Protocols were deposited with the Secretary-General of the United Nations. The Final Act, by
unanimous decision of the Conference, was deposited in the archives of the Federal Ministry for
Foreign Affairs of Austria.

Classification of Diplomatic Agents

Except for precedence and etiquette, there is hardly any distinction between diplomatic agents
and their privileges and immunities. There may be ad hoc, extraordinary, plenipotentiary, as well
as resident envoys who are sent for temporary assignments, ad hoc mission with full powers for
that purpose only.
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PROVISIONS OF THE CONVENTION:

I. Establishment of Diplomatic Relations

1. Mutual Consent
Article 2- ‘The establishment of diplomatic relations between states, and of permanent
diplomatic missions, take place by mutual consent.’

- Every state has the capacity to establish diplomatic relations,

- but there is no right of legation vested in a state under International Law.

- Therefore, if a state does not wish to enter into diplomatic relations, it cannot be
compelled to do so.

- Further, it is the state concerned to decide the category of diplomatic relation it wants to
maintain. Therefore, establishment of diplomatic relation may not necessarily be
accompanied by permanent missions.

2. Agreement of the Receiving State

Article 4 says:

- The sending State must make certain that the agrément of the receiving State has been
given for the person it proposes to accredit as head of the mission to that State.

- The receiving State is not obliged to give reasons to the sending State for a refusal of
agrément.

3. Diplomats may be declared Persona Non Grata

Article 9 says:
The receiving State may at any time and without having to explain its decision, notify
the sending State that the head of the mission or any member of the diplomatic staff of
 P a g e | 19

the mission is persona non grata or that any other member of the staff of the mission is
not acceptable.
In any such case, the sending State shall, as appropriate, either recall the person
concerned or terminate his functions with the mission. A person may be declared non
grata or not acceptable before arriving in the territory of the receiving State.

Therefore, before an individual is appointed as head of the mission, the consent of the receiving
state is obtained which may refuse to accept the appointment before forwarding any reason.
However, with respect to other appointments, the sending state may freely appoint other
members of the staff of the mission, except the military, naval and air attaches who may be
appointed after their names have been approved by the receiving state. At any point after
appointment, the receiving state may notify the sending state its unwillingness in allowing either
head of the mission or nay other member to continue within its state by declaring him as person
non grata. In such a case, If the sending state refuses to act or fails to act within a reasonable
time, the refusing state may refuse to recognise the concerned person as a member of the
mission. This implies that such a person will lose his immunity and privileges

4. Size of the Mission

In the absence of a specific agreement as to the size of the mission, the receiving state
may require that the size of the mission be kept within limits considered by it to be
reasonable and normal, by taking into account the circumstances and conditions in the
receiving state and the needs of the particular mission (art 11)
However, to check the subjectivity in any such decision, and avoid any discriminatory
action, it is required that the receiving state may equally within similar bounds and on a
non discriminatory basis, refuse to accept officials of a particular category.

5. Limitations on mutual consent

The principle of consent as the basis of diplomatic relations may be affected by other
rules of International Law. For example, the security council in resolution 748 (1992),
which imposed sanctions upon Libya, decided that 'all states shall: (a) significantly
 P a g e | 20

reduce the number and level of the staff at Libyan diplomatic missions and consular
posts and restrict or control the movement within their territory of all such staff who
remain. . . '.

II FUNCTIONS OF A DIPLOMATIC MISSION

1. Article 3
The functions of a diplomatic mission consist, inter alia, in:
a) Representing the sending State in the receiving State;
b) Protecting in the receiving State the interests of the sending State and of its nationals,
within the limits permitted by international law;
c) Negotiating with the Government of the receiving State;
d) Ascertaining by all lawful means conditions and developments in the receiving State, and
reporting thereon to the Government of the sending State;
e) Promoting friendly relations between the sending State and the receiving State, and
developing their economic, cultural and scientific relations.

Nothing in the present Convention shall be construed as preventing the performance of

consular functions by a diplomatic mission.

Under Customary International Law, diplomatic missions have three functions to perform:

- protect the interests of the sending states and its nationals

- to negotiate with the government of the receiving state,

- and to report about the conditions of the receiving state

III RIGHTS PRIVILEGES AND IMMUNITIES

1. Rationale of privileges and Immunities

 P a g e | 21

Theories regarding the basis of diplomatic immunity

- the extraterritoriality theory- which regards the premises of the mission representing an
extension of the territory of the sending state

- The representative character theory that considers the diplomatic mission as personifying
the sending state and the diplomat as representative of the foreign sovereign, hence there
are privileges

- The functional necessity theory which justifies the privileges and immunities as being
necessary to enable the mission to perform its functions.

The Vienna Convention is the sum total of all three theories and the last one has been generally
followed where the customary international law had failed to give any clear pointer. It is based
on the principle that diplomatic agent should be free to perform official business on behalf of
his country without any disturbance, interference and interruption.

2. Rights, Privileges and Immunities of Mission

a) Inviolability of the Mission

Article 22
a) The premises of the mission shall be inviolable. The agents of the receiving State may not
enter them, except with the consent of the head of the mission.
b) The receiving State is under a special duty to take all appropriate steps to protect the
premises of the mission against any intrusion or damage and to prevent any disturbance
of the peace of the mission or impairment of its dignity.
c) The premises of the mission, their furnishings and other property thereon and the means
of transport of the mission shall be immune from search, requisition, attachment or
execution.
 P a g e | 22

Article 41
(3) The premises of the mission must not be used in any manner incompatible with the
functions of the mission as laid down in the present Convention or by other rules of
general international law or by any special agreements in force between the sending and
the receiving State.

Article 22 of the Convention specifically declares that the premises of the mission are inviolable.
This is an absolute rule which cannot be violated even for serving any writs through mail. The
agents of the receiving state are not to enter them without the consent of the mission. This
appears to be an absolute rule. In the Sun Yat Sen incident in 1896, the Court refused to issue a
writ of Habeas Corpus with regard to a Chinese refugee held against his will in the Chinese
legation in London

However, Article 22 of the Convention leaves open the issue of waiver under emergency.
Precisely what the legal position would be in the event of entry without express consent because,
of pressing emergency, fire-fighting requirements or of danger to persons within that area, is
uncertain under customary law also. However, the receiving state is under a special duty to
protect the mission premises from intrusion or damage or 'impairment of its dignity’ under
Article 22(3). Under Article 41 (3), the premises of a mission must not be used in a way which is
incompatible with the functions of the mission under the Convention or customary law or treaty.
Whether in case of violation of articles 22(3) and 41(3), receiving state can enter the mission
premises without permission is still an unsettled issue.

Case Law –
Article 22- The US Supreme Court, while making specific reference to article 22 of the Vienna
Convention, emphasised in Boos v. Barry that, 'The need to protect diplomats is grounded in our
Nation's important interest in international relations. . . Diplomatic personnel are essential to
conduct the international affairs so crucial to the well-being of this nation.’
 P a g e | 23

It was also noted that protecting foreign diplomats in the US ensures that similar protection
would be afforded to US diplomats abroad. The Supreme Court upheld a District of Columbia
statute which made it unlawful to congregate within 500 feet of diplomatic premises and refuse
to disperse after having been so orde-[red by the police, and stated that, 'the "prohibited quantum
of disturbance“ is whether normal embassy activities have been or are about to be disrupted

Article 22- In 1979, the US Embassy in Tehran, Iran was taken over by several hundred
demonstrators. Archives and documents were seized and fifty diplomatic and consular staff were
held hostage. In 1980, the International Court of Justice in the US diplomatic and Consular staff
in Tehran case 1979 declared that, under the 1961 Convention (and the 1963 Convention on
Consular Relations): Iran was placed under the most categorical obligations, as a receiving state,
to take appropriate steps to ensure the protection of the United States Embassy and Consulates,
their staffs, their archives, their means of communication and the free movement of the members
of their staffs. Court held that Iranian government had failed to ensure protection of the US
embassy and consulate, which was violation of the 1961 and 1962 conventions.

These were also obligations under general international law. The Court in particular stressed the
seriousness of Iran's behaviour and the conflict between its conduct and its obligations under
'the whole corpus of the international rules of which diplomatic and consular law is comprised,
rules the fundamental character of which the court must here again strongly affirm.

Article 41(3)- By the same token, the premises of a mission must not be used in a way which is
incompatible with the functions of the mission (Art. 41 (3)).On the suspicion that the arms are
smuggled in Pakistan, the Iraqi ambassador was called by the Ministry of Foreign Affairs of
Pakistan and was told that arms were being brought into Pakistan under diplomatic immunity and
there was evidence that they were stored in the Iraqi embassy in Pakistan. On the refusal of
permission for search by the ambassador, the premises were raided by the armed policemen in
his presence and huge quantity of arms stored in crates were recovered. Pakistan sent a strong
protest to the Iraqi government, and declared the Iraqi ambassador and an attache persona non
grata and recalled their own ambassador.
 P a g e | 24

Article 41(3) - In another incident, the UK severed diplomatic ties with Libya in 1984, after the
Libyan People’s Bureau Incident, when firing from the Libyan Bureau in London killed one
police personnel and injured 11 demonstrators. The demonstrators were protesting against
Colonel Gaddafi’s government. After the incident, the Bureau building was evacuated, it was
searched and guns were found.

Article 22- 1965- US embassy in Moscow attacked by students in 1965, -USSR promised strict
action and agreed payment of compensation

Article 22- In 1990, Iraqi forces picked up diplomats from some embassies in Kuwait which as
held by the UNSC as ‘flagrant violation of international obligations.

Article 22- 1999 - during the Kosovo campaign, the Chinese Embassy in Belgrade was bombed
by the US. The US declared that it had been a mistake and apologised. In December 1999, the
US and China signed an Agreement providing for compensation to be paid by the former to the
latter of $28m. At the same time, China agreed to pay $2.87m to the US to settle claims arising
out of rioting and attacks on the US Embassy in Beijing, the residence of the US consulate in
Chengdu and the consulate in Guangzhu.

Right to Diplomatic Asylum

Q) Whether a right to diplomatic asylum exists in International Law?

It is doubtful if a right of asylum for either political or other offenders is recognized by general
international law. The Convention does not have any provision on diplomatic asylum and it is
doubtful whether a right to grant diplomatic asylum for political or other offenders exists under
general International Law. However it may be allowed under bilateral agreement as reference to
‘special agreement’ in Article 41 allows for bilateral recognition of the right to give asylum to
political refugees within the mission.

Though not expressly allowed, the question of diplomatic asylum under the VCDR would be
dependent on the joint application of Article 41(1)—on respect for law and non-interference in
 P a g e | 25

the affairs of the receiving state—and Article 22, which allows no exception to the inviolability
of a diplomatic mission. Thus while there is no right to grant asylum, once one or more refugees
have been accepted onto embassy property the receiving state cannot retrieve them, a situation
which will ordinarily force the sending and receiving state to the negotiating table.

The International Court in the Asylum case between Colombia and Peru emphasised that a
decision to grant asylum involves derogation from the sovereignty of the receiving state 'and
constitutes an intervention in matters which are exclusively within the competence of that state.
Such derogation from territorial sovereignty cannot be recognised unless its legal basis is
established in each particular case.'

Where treaties exist regarding the grant of asylum, the question will arise as to the respective
competences of the sending and receiving state or the state granting asylum and the territorial
state. While the diplomats of the sending state may provisionally determine whether a refugee
meets any condition laid down for the grant of asylum under an applicable treaty this would not
bind the receiving state, for 'the principles of international law do not recognise any rule of
unilateral and definitive qualification by the state granting asylum'.

It may be that in law a right of asylum will arise for 'urgent and compelling reasons of
humanity', but the nature and scope of this is unclear.

3. Immunity to property

Under Article 22 of the Vienna Convention, the premises of the mission are inviolable together
with their furnishings and other property thereon and the means of transport, are immune from
search, requisition, attachment or execution.

By article 23, a general exception from taxation in respect of the mission premises is posited.
 P a g e | 26

Philippine Embassy case explained that, in the light of customary and treaty law, 'property used
by the sending state for the performance of its diplomatic functions in any event enjoys
immunity even if it does not fall within the material or spatial scope' of article 22.

House of Lords in Alcom Ltd v. Republic of Colombia held that under the State Immunity Act
1978 a current account at a commercial bank in the name of a diplomatic mission would be
immune unless the plaintiff could show that it had been earmarked by the foreign state solely for
the settlement of liabilities incurred in commercial transactions. An account used to meet the
day-to-day running expenses of a diplomatic mission would therefore be immune. This approach
was also based upon the obligation contained in article 25 of the Vienna Convention on
Diplomatic Relations, which provided that the receiving state 'shall accord full facilities for the
performance of the functions of the mission'. The House of Lords noted that the negative
formulation of this principle meant that neither the executive nor the legal branch of government
in the receiving state must act in such manner as to obstruct the mission in carrying out its
function

4. Archives and Documents

Article 24- The archives and documents of the mission shall be inviolable at any time and
wherever they may be.
They are not subject to legal process. However, the convention fails to define the term
‘archives’, but the 1963 Convention on Consular Relations provides that ‘consular archives’
includes all the papers, 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 their protection or safekeeping.’

5. Freedom of Communication

Article 27 provides that the receiving state shall permit and protect free communication on
behalf of the mission for all official purposes. Such official communication is inviolable and
 P a g e | 27

may include the use of diplomatic couriers and messages in code and in cipher, although the
consent of the receiving state is required for a wireless transmitter.

Article 27(3) and (4) deals with the diplomatic bag, and provides that it shall not be opened
or detained'' and that the packages constituting the diplomatic bag 'must bear visible
external marks of their character and may contain only diplomatic documents or articles
intended for official use'. The need for a balance in this area is manifest.

The obligations in relation to diplomatic couriers are equally binding on the third state. They
shall accord under article 40 (3) the similar protection and freedom as granted by the receiving
state.

6. Rule regarding search of Diplomatic Bag

On the one hand, missions require a confidential means of communication, while on the other the
need to guard against abuse is clear. Article 27, however, lays the emphasis upon the former.
Before 1961, right to search diplomatic bag in case of doubt about its content, was existent.
However, after the convention, it is doubtful whether such a right exists. Many states have made
reservation against this prohibition in the convention. Implied exception- However, some cases
point to an implied exception to article 27(3) in the interests of humanity. ( eg. The UK Nigeria
case)

7. Rules proposed under ILC draft articles on status of Diplomatic courier.

Draft Article 28 - the diplomatic bag shall be inviolable wherever it may be. It is not to be
opened or detained and 'shall be exempt from examination directly or through electronic or other
technical device'.
However, in the case of the consular bag, it is noted that if the competent authorities of the
receiving or transit state have serious reason to believe that the bag contains something other
than official correspondence and documents or articles intended exclusively for official use, they
may request that the bag be opened in their presence by an authorised representative of the
 P a g e | 28

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.

Rules regarding diplomatic courier – Draft Articles

Draft Article 27 (5) - The diplomatic courier, who shall be provided with an official document
indicating his status and the number of packages constituting the diplomatic bag, shall be
protected by the receiving State in the performance of his functions. He shall enjoy person
inviolability and shall not be liable to any form of arrest or detention.
Draft article 10 - He is to enjoy personal inviolability and is not liable to any form of arrest or
detention, his temporary accommodation
Draft article 17 and 18 - He is inviolable and he will benefit from immunity from the criminal
and civil jurisdiction of the receiving or transit state in respect of all acts performed in the
exercise of his functions
Draft article 21- his privileges and immunities last from the moment he enters the territory of the
receiving or transit state until he leaves such state.

Examples -

- In the Dikko incident on 5 July 1984, a former Nigerian minister was kidnapped in
London and placed in a crate to be flown to Nigeria. The crate was opened at Stansted
Airport, although accompanied by a person claiming diplomatic status. The crate did not
contain an official seal and was thus clearly not a diplomatic bag.

- When, in March 2000, diplomatic baggage destined for the British High Commission in
Harare was detained and opened by the Zimbabwe authorities, the UK government
protested vigorously and announced the withdrawal of its High Commissioner for
consultation

8. Protection to Diplomatic Agents

 P a g e | 29

- Article 29- It is the oldest established diplomatic rule. It is a principle founded on mutual
interest and reciprocity

- The person of a diplomatic agent is inviolable and he may not be detained or arrested.

- The receiving state is under an obligation to 'take all appropriate steps' to prevent any
attack on the person, freedom or dignity of diplomatic agents. What would be the
appropriate measure depends on the circumstances

- However, in exceptional cases, a diplomat may be arrested or detained on the basis of self-
defence or in the interests of protecting human life – for example a drunken diplomat with
loaded gun

- Where a question arises as to whether a person is or is not entitled to any privilege or

immunity under the Act, a certificate issued by or under the authority of the Secretary of
State stating any fact relating to that question shall be conclusive evidence of that fact.

- Article 31- As far as criminal jurisdiction is concerned, diplomatic agents enjoy complete
immunity from the legal system of the receiving state, although there is no immunity from
the jurisdiction of the sending state. This provision noted in article 3 l(1) reflects the
accepted position under customary law. The only remedy the host state has in the face of
offences alleged to have been committed by a diplomat is to declare him persona non grata
under article 9.

- Article 31 (1) also specifies that diplomats are immune from the civil and administrative
jurisdiction of the state in which they are serving, except in three cases: first, where the
action relates to private immovable property situated within the host state (unless held for
mission purpose ) secondly , in litigation relating to succession matters in which the
diplomat is involved as a private person (for example as an executor or heir); and, finally,
with respect to unofficial professional or commercial activity engaged in by the agent.
But under article 42 a diplomatic agent cannot indulge in any professional or commercial
activity in the receiving state except with specific permission of the receiving state

- By article 3 1(2), a diplomat cannot be obliged to give evidence as a witness, while by

article 31(3), no measures of execution may be taken against such a person except in the
 P a g e | 30

cases referred to in article 31(l)a, b and c and provided that the measures concerned can be
taken without infringing the inviolability of his person or of his residence.

- Diplomatic agents are generally exempt from the social security provisions in force in the
receiving state, from all dues and taxes, personal or real, regional or municipal except for
indirect taxes, from personal and public services and from custom duty – Articles (33, 34,
35)

- Personal baggage of a diplomat is exempt from inspection unless there are serious grounds
for presuming that it contains articles not covered by the specified exemptions in article
36(1). Inspections can only take place in the presence of the diplomat or his authorised
representative

- Article 37 provides that the members of the family of a diplomatic agent forming part of
his household" shall enjoy the privileges and immunities specified in articles 29 to 36 if not
nationals of the receiving state.

Beginning of Immunity

Immunities and privileges start from the moment the person enters the territory of the receiving
state on proceeding to take up his post or, if already in the territory, from the moment of official
notification under Article 39. Immunity of the diplomats lasts for a reasonable time even after
termination of mission.

- R v. Governor of Pentonville Prison, exparte Lord Parker noted that it was fundamental to the
claiming of diplomatic immunity that the diplomatic agent 'should have been in some form
accepted or received by this country'. Immunity clearly did not depend upon notification and
acceptance, but under article 39, commenced upon entry of the diplomat in the receiving state.
 P a g e | 31

- Ex parte Bagga- if a person already in the country is employed as a secretary, for example, at
an embassy, nothing more than notification is required before that person would be entitled to
immunities.

Diplomatic Immunity and Third states

Article 40- provides for immunity where the person is in the territory in transit between his
home state and a third state to which he has been posted. The same principle applies to his family
enjoying privileges and immunity. In the case of administrative, technical and service staff and
members of their families, their privilege is limited only to passage.

Where, however, a diplomat is in a state which is neither the receiving state nor a state of transit
between his state and the receiving state, there will be no immunity. The official correspondence,
diplomatic bag and diplomatic courier has the same inviolability and protection as the receiving
state

End of the Immunity

Immunities and privileges normally cease when the person leaves the country or on expiry of a
reasonable period in which to do so. However, by article 39(2) there would be continuing-
immunity with regard to those acts that were performed in the exercise of his functions as a
member of the mission.

Case : In the Former Syrian Ambassador to the GDR case, the German Federal Constitutional
Court held that article 39(2) covered the situation where the ambassador in question was
accused of complicity in murder by allowing explosives to be transferred from his embassy to a
terrorist group. He was held to have acted in the exercise of his official functions. It was argued
that diplomatic immunity from criminal proceedings knew of no exception for particularly
serious crimes, the only resort being to declare him persona non grata. The Court, in perhaps a
controversial statement, noted that article 39(2), while binding on the receiving state, was not
binding on third states. Accordingly the continuing immunity of the former ambassador to the
German Democratic Republic under article 39(2) was not binding upon the Federal Republic of
Germany.
 P a g e | 32

It follows from this formulation that immunity would not continue for a person leaving the
receiving state for any act which was performed outside the exercise of his functions as a
member of a diplomatic mission even though he was immune from prosecution at the time.
Case: Tabatabai case- This was the view taken by the US Department of State with regard to an
incident where the ambassador of Papua New Guinea was responsible for a serious automobile
accident involving damage to five cars and injuries to two persons."' The ambassador was
withdrawn from the US and assurances sought by Papua New Guinea that any criminal
investigation of the incident or indictment of the former ambassador under US domestic law
would be quashed were rejected. The US refused to accept the view that international law
precluded the prosecution of the former diplomat for non-official acts committed during his
period of accreditation.

Waiver of Immunity
Waiver of immunity can be done because the privileges and immunities of diplomatic agents are
in substance the state’s concern, which has accredited them.

The immunity of the head of the mission can be waived by the state and the immunity of other
persons can be waived by or on behalf of the government of the sending state by the head of the
mission. Cases: R Vs Madan, R vs Kent

Article 32- the sending state may waive the immunity from jurisdiction of diplomatic agents and
others possessing immunity under the Convention. Waiver must be made with full knowledge of
the circumstances and of that person’s rights. Such waiver must be express.

Where a person with immunity initiates proceedings, he cannot claim immunity in respect of any
counter-claim directly connected with the principal claim. Case: High Commission of India vs
Ghosh
 P a g e | 33

Waiver of immunity from jurisdiction in respect of civil or administrative proceedings is not to

be taken to imply waiver from immunity in respect of the execution of the judgment, for which a
separate waiver is necessary.

Duty of Diplomats
Article 41-

-Respect the laws and regulations of receiving states

-Not interfere in internal affairs of the receiving state
-Not practice for personal profits and profession or commercial activity in receiving state

9. Administrative, technical and other staffs of the mission

Members of the administrative and technical staff (and their households), if not nationals or
permanent residents of the receiving state, may benefit from articles 29-35, except that the article
3 l(1) immunities do not extend beyond acts performed in the course of their duties.

- The members of the family of a diplomatic agent forming part of his household shall, if
they are not nationals of the receiving State, enjoy the privileges and immunities
specified in articles 29 to 36.

- Members of the administrative and technical staff of the mission, together with members
of their families forming part of their respective households, shall, if they are not
nationals of or permanently resident in the receiving State, enjoy the privileges and
immunities specified in articles 29 to 35, except that the immunity from civil and
administrative jurisdiction of the receiving State specified in paragraph 1 of article 31
shall not extend to acts performed outside the course of their duties. They shall also enjoy
the privileges specified in article 36, paragraph 1, in respect of articles imported at the
time of first installation.

- Members of the service staff of the mission who are not nationals of or permanently
resident in the receiving State shall enjoy immunity in respect of acts performed in the
 P a g e | 34

course of their duties, exemption from dues and taxes on the emoluments they receive by
reason of their employment and the exemption contained in article 33.

- Private servants of members of the mission shall, if they are not nationals of or
permanently resident in the receiving State, be exempt from dues and taxes on the
emoluments they receive by reason of their employment. In other respects, they may
enjoy privileges and immunities only to the extent admitted by the receiving State.
However, the receiving State must exercise its jurisdiction over those persons in such a
manner as not to interfere unduly with the performance of the functions of mission

4. TERMINATION OF THE MISSION

Article 45
If diplomatic relations are broken off between two States, or if a mission is permanently or
temporarily recalled:
(a) The receiving State must, even in case of armed conflict, respect and protect the premises of
the mission, together with its property and archives;
(b) The sending State may entrust the custody of the premises of the mission, together with its
property and archives, to a third State acceptable to the receiving State;
(c) The sending State may entrust the protection of its interests and those of its nationals to a
third State acceptable to the receiving State.

Recall of the Mission

When the relations between the sending and the receiving state deteriorate, to express its
displeasure and policy differences with the receiving state, the accrediting state may recall its
diplomatic agent. The letter of recall is given to the Head of the state or to the Minister of foreign
Affairs in solemn audience. The envoy receives a lettre de recreance in return

Through Notification
The functions of the diplomatic agents may come to an end through notification (article 43)
The function of a diplomatic agent comes to an end, inter alia:
 P a g e | 35

 On notification by the sending State to the receiving State that the function of the
diplomatic agent has come to an end;

 (b) On notification by the receiving State to the sending State that, in accordance with
paragraph 2 of article 9, it refuses to recognize the diplomatic agent as a member of the
mission. This signifies rupture in diplomatic relations

Persona Non Grata

It is the right of the receiving state to declare at any time a diplomatic agent persona non grata
i.e. undesirable person without assigning any reason. It may be resorted to as a measure of retort
ion by the sending state considering it an unfriendly act of the receiving state. The mission may
come to an end when the object of the mission has been achieved or after the expiration of
stipulated time, if it had been established for a specific purpose or created for a specific time.

The armed conflict does not ipso facto terminate mission, but in war, sometimes, it is difficult to
discharge the functions of the mission. In such a case, delivering of the passport to the envoys
and the staff of the mission of the receiving state terminates the mission

VCDR- 1961 – Provisions with respect to Immunity of diplomats, their family members
and the technical staffs

Article 31

1.A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he
holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or
legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving
State outside his official functions.
 P a g e | 36

2.A diplomatic agent is not obliged to give evidence as a witness.

3.No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under
subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken
without infringing the inviolability of his person or of his residence.

4.The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the
jurisdiction of the sending State.

Article 32

1.The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be
waived by the sending State.

2.Waiver must always be express.

3.The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under
article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly
connected with the principal claim.

4.Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply
waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

Article 33

1.Subject to the provisions of paragraph 3 of this article, a diplomatic agent shall with respect to services rendered
for the sending State be exempt from social security provisions which may be in force in the receiving State.

2.The exemption provided for in paragraph 1 of this article shall also apply to private servants who are in the sole
employ of a diplomatic agent, on condition:

1. (a) That they are not nationals of or permanently resident in the receiving State; and
2. (b) That they are covered by the social security provisions which may be in force in the sending State or a
third State.

3.A diplomatic agent who employs persons to whom the exemption provided for in paragraph 2 of this article does
not apply shall observe the obligations which the social security provisions of the receiving State impose upon
employers.
 P a g e | 37

4.The exemption provided for in paragraphs 1 and 2 of this article shall not preclude voluntary participation in the
social security system of the receiving State provided that such participation is permitted by that State.

5.The provisions of this article shall not affect bilateral or multilateral agreements concerning social security
concluded previously and shall not prevent the conclusion of such agreements in the future.

Article 34

A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional or municipal, except:

1. (a) Indirect taxes of a kind which are normally incorporated in the price of goods or services;
2. (b) Dues and taxes on private immovable property situated in the territory of the receiving State, unless he
holds it on behalf of the sending State for the purposes of the mission;

(c) Estate, succession or inheritance duties levied by the receiving State, subject to the provisions of paragraph 4 of
article 39;

(d) Dues and taxes on private income having its source in the receiving State and capital taxes on investments made
in commercial undertakings in the receiving State;

5. (e) Charges levied for specific services rendered;

6. (f) Registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property,
subject to the provisions of article 23.

Article 35

The receiving State shall exempt diplomatic agents from all personal services, from all public service of any kind
whatsoever, and from military obligations such as those connected with requisitioning, military contributions and
billeting.

Article 36

1.The receiving State shall, in accordance with such laws and regulations as it may adopt, permit entry of and grant
exemption from all customs duties, taxes, and related charges other than charges for storage, cartage and similar
services, on:

1. (a) Articles for the official use of the mission;

2. (b) Articles for the personal use of a diplomatic agent or members of his family forming part of his
household, including articles intended for his establishment.
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2.The personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious grounds for
presuming that it contains articles not covered by the exemptions mentioned in paragraph 1 of this article, or articles
the import or export of which is prohibited by the law or controlled by the quarantine regulations of the receiving
State. Such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized
representative.

Article 37

1.The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of
the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.

2.Members of the administrative and technical staff of the mission, together with members of their families forming
part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State,
enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and
administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts
performed outside the course of their duties. They shall also enjoy the privileges specified in article 36, paragraph 1,
in respect of articles imported at the time of first installation.

3.Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State
shall enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the
emoluments they receive by reason of their employment and the exemption contained in article 33.

4.Private servants of members of the mission shall, if they are not nationals of or permanently resident in the
receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In
other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State.
However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere
unduly with the performance of the functions of the mission.

Article 38

1.Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent
who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and
inviolability, in respect of official acts performed in the exercise of his functions.

2.Other members of the staff of the mission and private servants who are nationals of or permanently resident in the
receiving State shall enjoy privileges and immunities only to the extent admitted by the receiving State. However,
the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with
the performance of the functions of the mission.
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Article 39

1.Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the
receiving State on proceeding to take up his post or, if already in its territory, from the moment when his
appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

2.When the functions of a person enjoying privileges and immunities have come to an end, such privileges and
immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in
which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to
subsist.

3.In case of the death of a member of the mission, the members of his family shall continue to enjoy the privileges
and immunities to which they are entitled until the expiry of a reasonable period in which to leave the country.

4.In the event of the death of a member of the mission not a national of or permanently resident in the receiving
State or a member of his family forming part of his household, the receiving State shall permit the withdrawal of the
movable property of the deceased, with the exception of any property acquired in the country the export of which
was prohibited at the time of his death. Estate, succession and inheritance duties shall not be levied on movable
property the presence of which in the receiving State was due solely to the presence there of the deceased as a
member of the mission or as a member of the family of a member of the mission.

Article 40

1.If a diplomatic agent passes through or is in the territory of a third State, which has granted him a passport visa if
such visa was necessary, while proceeding to take up or to return to his post, or when returning to his own country,
the third State shall accord him inviolability and such other immunities as may be required to ensure his transit or
return. The same shall apply in the case of any members of his family enjoying privileges or immunities who are
accompanying the diplomatic agent, or travelling separately to join him or to return to their country.

2.In circumstances similar to those specified in paragraph 1 of this article, third States shall not hinder the passage of
members of the administrative and technical or service staff of a mission, and of members of their families, through
their territories.

3.Third States shall 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. They shall accord
to diplomatic couriers, who have been granted a passport visa if such visa was necessary, and diplomatic bags in
transit, the same inviolability and protection as the receiving State is bound to accord.
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4.The obligations of third States under paragraphs 1, 2 and 3 of this article shall also apply to the persons mentioned
respectively in those paragraphs, and to official communications and diplomatic bags, whose presence in the
territory of the third State is due to force majeure.

Article 41

1.Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and
immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the
internal affairs of that State.

2.All official business with the receiving State entrusted to the mission by the sending State shall be conducted with
or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed.

3.The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid
down in the present Convention or by other rules of general international law or by any special agreements in force
between the sending and the receiving State.

Article 42

A diplomatic agent shall not in the receiving State practise for personal profit any professional or commercial
activity.

Article 43

The function of a diplomatic agent comes to an end, inter alia:

(a) On notification by the sending State to the receiving State that the function of the diplomatic agent has come to
an end;

(b) On notification by the receiving State to the sending State that, in accordance with paragraph 2 of article 9, it
refuses to recognize the diplomatic agent as a member of the mission.

Article 44

The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying
privileges and immunities, other than nationals of the receiving State, and members of the families of such persons
irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place
at their disposal the necessary means of transport for themselves and their property.
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CONSULAR RELATIONS

Vienna Convention on consular Relations 1963

Consuls represent their state in many administrative ways, for instance, by issuing visas and
passports and generally promoting the commercial interests of their state. They have a particular
role in assisting nationals in distress with regard to, for example, finding lawyers, visiting
prisons and contacting local authorities, but they are unable to intervene in the judicial process
or internal affairs of the receiving state or give legal advice or investigate a crime" They are
based not only in the capitals of receiving states, but also in the more important provincial
cities. However, their political functions are few and they are accordingly not permitted the
same degree of immunity from jurisdiction as diplomatic agents.

Consuls must possess a commission from the sending state and the authorisation (exequatur) of
a receiving state.

The Convention divides consuls into four classes – (a) Consuls General (b) Consuls © Vice
Consuls (d) Consul – Agent. The Consul General is often appointed by the Head of the state and
he is the Head of the Consul office and appoints Consuls and Vice Consuls . Consul agents are
appointed either by the Consul General or the vice consul

Article 31 emphasises that consular premises are inviolable and may not be entered by the
authorities of the receiving state without consent. Like diplomatic premises, they must be
protected against intrusion or impairment of dignity, and similar immunities exist with regard to
archives and documents and exemptions from taxes.

Article 35 provides for freedom of communication, emphasising the inviolability of the official
correspondence of the consular post and establishing that the consular bag should be neither
opened nor detained
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Article36(l)(a) provides that consular officers shall be free to communicate with nationals of the
sending state and to have access to them, while nationals shall have the same freedom of
communication with and access to consular officers. However, in contrast to the situation with
regard to the diplomatic bag, where the authorities of the receiving state have serious reason to
believe that the bag contains other than official correspondence, documents or articles, they may
request that the bag be opened and, if this is refused, the bag shall be returned to its place of
origin.

Article 36(l)(b) provides that if the national of a state is being arrested, if he so requests, the
authorities of the receiving state shall without delay inform the consular post of the sending state
of any arrest or detention. The authorities in question shall inform the national of the sending
state without delay of his or her rights. Similarly, any communication from the detained national
to the consular post must be forwarded without delay. The Court held that the US had breached
its obligations under article 36(1) by not informing the LaGrande brothers of their rights under
that provision 'without delay'. In an Advisory Opinion of 1 October 1999, the Inter-American
Court of Human Rights concluded that the duty to notify detained foreign nationals of the right
to seek consular assistance under article 36(1) constituted part of the corpus of human rights

Immunity

- Under article 43 their immunity from jurisdiction is restricted in both criminal and
civil matters to acts done in the official exercise of consular functions."'

Article 43- 1.Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative
authorities of the receiving State in respect of acts performed in the exercise of consular functions.

- 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.
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Relavent provisions VCCR

Article 40 Protection of consular officers
The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any
attack on their person, freedom or dignity.

Article 41
Personal inviolability of consular officers
1.Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and
pursuant to a decision by the competent judicial authority.
2.Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be
liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final
effect.
3.If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.
Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and,
except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular
functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become
necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 42
Notification of arrest, detention or prosecution
In the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings
being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter
be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic
channel.

Article 43 Immunity from jurisdiction

1.Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative
authorities of the receiving State in respect of acts performed in the exercise of consular functions. (a) arising out of
a contract concluded by a consular officer or a consular employee in which he did not contract expressly or
impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

Article 44 Liability to give evidence

1.Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative
proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in
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paragraph 3 of this article, decline to give evidence. If a consular officer should decline to do so, no coercive
measure or penalty may be applied to him.
2.The authority requiring the evidence of a consular officer shall avoid interference with the performance of his
functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement
from him in writing.
3.Members of a consular post are under no obligation to give evidence concerning matters connected with the
exercise of their functions or to produce official correspondence and documents relating thereto. They are also
entitled to decline to give evidence as expert witnesses with regard to the law of the sending State.