UGANDA CHRISTIAN UNIVERSITY

FACULTY OF LAW

MODULE: PUBLIC INTERNATIONAL LAW 1 – LLB III

TRINITY SEMESTER - 2025

Lecturer: Mrs. Eva Nalubowa

enalubowa@ucu.ac.ug

Lecture Notes: Week 8

IMMUNITY UNDER INTERNATIONAL LAW

International law recognizes instances where there are restrictions
on the extent to which legal suits may be brought against a foreign
state, a national of a foreign state or an employee of an international
organization. In these three instances, international law recognizes
certain forms of immunity.
In cases where a legal suit against a foreign state is prohibited from
being brought in the domestic courts of another state, this is known
as state immunity. In instances where legal suits may not be brought
against the certain employees of certain organizations, this is known
as organizational immunity. In cases where legal suits may not be
brought against the employees of foreign diplomatic missions, this is
known as diplomatic immunity.
STATE IMMUNITY.
The doctrine of state immunity is rooted in customary international
law, that is, there is no treaty governing it but merely a set of
principles based on state practice over several years. The doctrine is
particularly derived from the recognition that all states are equal and
sovereign (Article 2 of the UN Charter) and therefore that no one
state may be subjected to the domestic courts of another state. The
Latin phrase is the maxim par in parem non habet imperium.
The principles of international law regarding state immunity have
mainly derived from customary and judicial decisions. One of the
earliest articulations of the doctrine of state immunity was the United
States Supreme Court’s decision in Schooner Exchange v
McFaddon 1912, where the Chief Justice Marshall clearly
enunciated the principle as follows.
“ the full and absolute territorial jurisdiction being the attribute of every
sovereign and being incapable of conferring extra-territorial power
would not seem to contemplate foreign sovereigns nor their sovereign
rights as its objects. One sovereign being in no respect amenable to
another and being bound by obligations of the highest character not to
degrade dignity of his nation by placing himself or his sovereign rights
under the jurisdiction of another can be supposed to have entered a
foreign territory only under an express license or in the confidence that
immunities belonging to his independent nation though not expressly
stipulated are reserved by implication and will be extended to him.”
Since this statement by the Us Supreme Court, the general
recognition of state immunity has become firmly established in the
practice of all states.
It is noteworthy that the doctrine of state immunity applies to rights
and interests vested in a foreign state as well as to individuals
officially representing such foreign state. In other words, the doctrine
not only prohibits legal suits against a foreign state from being
brought into the domestic courts of another state, but it also
prohibits criminal proceedings of any kind from being brought
against the Head of State or other official representative of a foreign
state from being brought in the domestic courts of another state.
Refer to the ICJ decision in the case of DR Congo v Belgian
(Yerodia Ndombasi).
DR Congo v Belgium..
On 11 April 2000 an investigating judge of the Brussels Tribunal de
première instance issued "an international arrest warrant in
absentia'' against Mr. Abdulaye Yerodia Ndombasi, charging him, as
perpetrator or co-perpetrator, with offences constituting grave
breaches of the Geneva Conventions of 1949 and of the Additional
Protocols thereto, and with crimes against humanity. At the time
when the arrest warrant was issued Mr. Yerodia was the Minister for
Foreign Affairs of Congo. The arrest warrant was transmitted to the
Congo on 7 June 2000, being received by the Congolese authorities
on 12 July 2000. According to Belgium, the warrant was at the same
time transmitted to the International Criminal Police
Organization (Interpol), an organization whose function is to enhance
and facilitate cross border criminal police co-operation worldwide;
through the latter, it was circulated internationally
On 17 October 2000, the Congo filed in the Registry an Application
instituting the present proceedings (see paragraph 1 above), in which
the Court was requested "to declare that the Kingdom of Belgium
shall annul the international arrest warrant issued on 11 April 2000".
The Congo relied in its Application on two separate legal grounds.
First, it claimed that "[t]he universal jurisdiction that the Belgian
State attributes to itself under Article 7 of the Law in question"
constituted a violation of the principle that a State may not exercise
its authority on the territory of another State and of the principle of
sovereign equality among all Members of the United Nations, as laid
down in Article 2, paragraph 1, of the Charter of the United Nations".
Secondly, it claimed that "[t]he non-recognition, on the basis of
Article 5 ... of the Belgian Law, of the immunity of a Minister for
Foreign Affairs in office" constituted a "violation of the diplomatic
immunity of the Minister for Foreign Affairs of a sovereign State, as
recognized by the jurisprudence of the Court and following from
Article 41, paragraph 2, of the Vienna Convention of 18 April 1961
on Diplomatic Relations".
Held; Accordingly, the Court concludes that the circulation of the
warrant, whether or not it significantly interfered with Mr. Yerodia's
diplomatic activity, constituted a violation of an obligation of Belgium
towards Congo, in that it failed to respect the immunity of the
incumbent Minister for Foreign Affairs of the Congo and, more
particularly, infringed the immunity from criminal jurisdiction and
the inviolability then enjoyed by him under international law. And
thus ordered Belgium, by means of its own choosing, to cancel the
arrest warrant of 11 April 2000 and so inform the authorities to
whom that warrant was circulated.
ABSOLUTE AND RESTRICTED IMMUNITY.
In international law, the doctrine of state immunity has evolved
through different approaches. The earliest articulation of the doctrine
was that of absolute immunity which was the idea that under no
circumstances could any kind of legal suit be brought against a
foreign state regardless of the action.
The absolute immunity concept, however, came under criticism
because it was regarded as allowing foreign states to act with
impunity even when there was no justification in terms of acts of the
state. Beginning in the early 20th century, therefore, western nations
adopted a more restrictive approach to immunity in response to the
fact that foreign states were engaging more and more in trade and
economic affairs.
This is called the restrictive differs from absolute immunity approach
in the sense that while in absolute immunity no actions whatsoever
could be brought against a foreign state, under restrictive immunity,
a foreign state may be sued in the domestic courts of another state if
its actions fall within a certain category
In particular the doctrine of restricted state immunity distinguishes
between acts of a foreign state that are of a sovereign nature, that is,
acts that are typically associated with governmental functions on the
one hand and on the other hand acts of a foreign state which are
non-governmental or non-sovereign character (acts like trade or
business) which are not typically associated with government but in
which a foreign state nevertheless engages.
Acts of a state which are of a sovereign nature are known as acts that
are jure imperii and the doctrine of restricted state immunity
prohibits any kind of legal suit against a foreign state over these
kinds of acts.On the other hand acts that are of non-sovereign nature
are known as acts that are jure gestionis and the restricted state
immunity approach allows legal suits to be brought against a foreign
state if the acts complained of fall in this category
It should be noted that the restricted approach to state immunity
presupposes a clear distinction between acts of a sovereign nature
and acts of a non-sovereign (commercial) or other nature. In practice,
however, the distinction is not always clear and often the matter is
left to individual state practice.
In some instances what has been regarded as a governmental act by
one state has been regarded as a non-sovereign act by another state.
This lack of uniform state practice has been particularly problematic
since the doctrine of state immunity is based on custom and has no
treaty to support it.
There have been efforts to create a treaty by codifying some of the
rules that regarded as having emerged from state practice, but these
efforts have not borne fruits. In 2004 for instance the United Nations
drafted the Convention on the jurisdictional immunities of states and
their property, but this convention has not yet received the necessary
number of state signatures and ratifications and therefore is not in
force
The convention attempts to consolidate and clarify the restricted
approach to state immunity yet the extent to which this restricted
approach is recognized by states is itself a matter of debate.
To conclude, the doctrine of state immunity is a matter of state
practice and custom that is still far from uniform. Nevertheless,
it is clear by now the very few states if any still uphold the
absolute immunity approach and that most states now adopt the
restricted approach. The debate, however, is as to where the
boundaries between acts that are jure imperii and acts that are
jure gestionis should be drawn.
Every state and its domestic courts have attempted to draw those
boundaries based on pragmatism and the extent to which private
individuals doing business with the foreign states may be harmed if
state immunity is upheld. If the courts are of the view that a broad
categorization of state acts as jure imperii is likely to be harmful to
private business people, they will push those boundaries back by
deciding that certain acts of a state which would ordinarily be
regarded as governmental have assumed a non-governmental
character and are therefore not covered by state immunity.
If on the other hand, the courts are concerned that an overly loose
interpretation of state acts as jure gestionis is likely to be harmful to
the state by allowing multiple suits against it, they will adopt a very
narrow categorizations of acts that are jure gestionis.
DIPLOMATIC IMMUNITY
Diplomatic immunity differs from state immunity in the sense that
while state immunity attaches to a foreign state and its agents,
diplomatic immunity attaches to a foreign diplomatic mission (an
embassy, high commission, consulate etc.) and its agents.
Diplomatic immunity unlike state immunity is governed by 2 treaties
namely, the Vienna Convention on Diplomatic relations 1964 and
the Vienna Convention on Consular Relations 1964. In addition,
however, the rules relating to diplomatic immunities and relations
are regarded as having acquired the status of customary
international law since they have been the subject of state practice
over several centuries. This means that even those states that have
not ratified the 2 Vienna conventions are still bound by the principles
in those conventions as a matter of custom
Diplomatic immunity is different from consular immunity in certain
ways, namely, while diplomatic agent has absolute immunity from
criminal proceedings that is my is not arrested under any
circumstances whatsoever unless the sending state waives his
immunity, a consular official on the other hand enjoys immunity
from criminal proceedings only in respect of offences that are not of
a grave nature. The convention on consular immunities does not
define “grave” and leaves it to every state in its domestic law to
determine what amounts to a grave offence.
Rules regulating the various aspects of diplomatic relations
constitute one of the earliest expressions of international law.
Whenever in history there has been a group of independent states co-
existing, special customs have developed on how the ambassadors
and other special representatives of other states were to be treated.
Diplomacy as a method of communication between various parties,
including negotiations between recognized 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 related to diplomatic personnel
of various kinds grew up 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
organizations 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.
Diplomatic relations have traditionally been conducted through the
medium of ambassadors and their staffs, but with the growth of trade
and commercial intercourse the office of consul was established and
expanded. The development of speedy communications stimulated
the creation of special missions designed to be sent to particular
areas for specific purposes, often with the head of state or
government in charge. To some extent, however, the establishment
of telephone, telegraph, telex and fax services has lessened the
importance of the traditional diplomatic personnel by strengthening
the centralizing process. Nevertheless, diplomats and consuls do
retain some useful functions in the collection of information and
pursuit of friendly relations, as well as providing a permanent
presence in foreign states, with all that that implies for commercial
and economic activities.
The field of diplomatic immunities is one of the most accepted and
uncontroversial of international law topics, as it is in the interest of
all states ultimately to preserve an even tenor of diplomatic relations,
although not all states act in accordance with this. As the
International Court noted in the US Diplomatic and Consular Staff
in Tehran case: “the rules of diplomatic law, in short, constitute a self-
contained regime, which on the one hand, lays down the receiving
state's obligations regarding the facilities, privileges and immunities to
be accorded to diplomatic missions and, on the other, foresees their
possible abuse by members of the mission and specifies the means at
the disposal of the receiving state to counter any such abuse.”
The Vienna Convention on Diplomatic Relations, 1961
This treaty, which came into force in 1964, emphasizes the functional
necessity of diplomatic privileges and immunities for the efficient
conduct of international relations as well as pointing to the character
of the diplomatic mission as representing its It both codified existing
laws and established others. Questions not expressly regulated by
the Convention continue to be governed by the rules of customary
international law.
There is no right as such under international law to diplomatic
relations, and they exist by virtue of mutual If one state does not wish
to enter into diplomatic relations, it is not legally compelled so to do.
Accordingly, the Convention specifies in article 4 that the sending
state must ensure that the consent (or agreement) of the receiving
state has been given for the proposed head of its mission, and
reasons for any refusal of consent do not have to be given. Similarly,
by article 9 the receiving state may at any time declare any member
of the diplomatic mission persona non grata without having to
explain its decision and thus obtain the removal of that person.
The main functions of a diplomatic mission are specified in article 3
and revolve around the representation and protection of the interests
and nationals of the sending state, as well as the promotion of
information and friendly relations
Article 13 provides that the head of the mission is deemed to have
taken up his functions in the receiving state upon presentation of
credentials. Heads of mission are divided into three classes by article
14, viz. Ambassadors or nuncios accredited to heads of state and
other heads of mission of equivalent rank; envoys, ministers and
internuncios accredited to heads of state; and charges d'affaires
accredited to ministers of foreign affairs.
It is customary for a named individual to be in charge of a diplomatic
mission. When, in 1979, Libya designated its embassies as 'People's
Bureaux' to be run by revolutionary committees, the UK insisted
upon and obtained the nomination of a named person as the head of
the mission.
The inviolability of the premises of the mission
In order to facilitate the operations of normal diplomatic activities,
article 22 of the Convention specifically declares that the premises
of the mission are inviolable and that agents of the receiving state are
not to enter them without the consent of the mission. This appears
to be an absolute rule and 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.' Precisely what the legal position would be in the event of
entry without express consent because, for example, of fire-fighting
requirements or of danger to persons within that area, is rather
uncertain under customary law, but under the Convention any
justification pleaded by virtue of implied consent would be regarded
as at best highly controversial.
The receiving state is under a special duty to protect the mission
premises from intrusion or damage or 'impairment of its dignity as
per article 22(2). 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 as per article 41(3).
In the Case Concerning United States Diplomatic and Consular Staff
in Tehran ( USA v Iran) 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 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 Decided that Iran had violated obligations owed by it to the
United States of America under international conventions in force
between the two countries, as well as under long established rules of
general international law ; That the violations of these obligations
engaged the responsibility of Iran towards the United States of
America under international law ; and court ordered Iran to take all
steps and immediately terminate the unlawful detention of the United
States diplomatic and consular staff and other United States
nationals now held hostage in Iran, and must immediately release
each and every one and entrust them to the protecting Power (Article
45 of the 1961 Vienna Convention on Diplomatic Relations)
On 8 May 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 apologized. 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.
On 17 April 1984, a peaceful demonstration took place outside the
Libyan Embassy in London. Shots from the Embassy were fired that
resulted in the death of a policewoman. After a siege, the Libyans
inside left, and the building was searched in the presence of a Saudi
Arabian diplomat. Weapons and other relevant forensic evidence
were found. The issue raised here, in the light of article 45(a) which
provides that after a break in diplomatic relations, 'the receiving state
must. . . respect and protect the premises of the mission', is whether
that search was permissible. The UK view is that article 45(a) does
not mean that the premises continue to be inviolable, and this would
clearly appear to be correct. There is a distinction between
inviolability under article 22 and respect and protection under article
45(a).
The suggestion has also been raised that the right of self-defense may
also be applicable in this context. It was used to justify the search of
personnel leaving the Libyan Embassy and the possibility was noted
that in certain limited circumstances it may be used to justify entry
into an Embassy.
The diplomatic bag
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 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. 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. This is provided that
article 27(4) is complied with. 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. It is also interesting to note that after the Dikko
incident, the UK Foreign Minister stated that the crates concerned
were opened because of the suspicion of human contents. Whether
the crates constituted diplomatic bags or not was a relevant
consideration with regard to a right to search, but: “the advice given
and the advice which would have been given had the crate
constituted a diplomatic bag took fully into account the overriding
duty to preserve and protect human life.”
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.
In view of suspicions of abuse, the question has arisen as to whether
electronic screening, not involving opening or detention, of the
diplomatic bag is legitimate. The UK appears to take the view that
electronic screening of this kind would be permissible, although it
claims not to have carried out such activities, but other states do not
accept this. It is to be noted that after the Libyan Embassy siege in
April 1984, the diplomatic bags leaving the building were not
searched. However, Libya had entered a reservation to the Vienna
Convention, reserving its right to open a diplomatic bag in the
presence of an official representative of the diplomatic mission
concerned. In the absence of permission by the authorities of the
sending state, the diplomatic bag was to be returned to its place of
origin. The Libyan reservation could have been relied upon by the UK
in these conditions.
As far as the diplomatic courier is concerned, that is, a person
accompanying a diplomatic bag, his privileges, immunities and
inviolability are akin to those governing diplomats. He is to
enjoy personal inviolability and is not liable to any form of arrest
or detention (Article 27(5)).
Diplomatic immunities – property
Under article 22 of the Vienna Convention, the premises of the
mission are inviolable and 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.
The Court in the 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
It should also be noted that the 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
It is to be noted that by article 24 of the Vienna Convention, the
archives and documents of the mission are inviolable at any time and
wherever they may be. Although 'archives and documents' are not
defined in the Convention, article l(1)k of the Vienna Convention on
Consular Relations provides that the term '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'. The term as used in the Diplomatic
Relations Convention cannot be less than this.
Diplomatic immunities – personal
The person of a diplomatic agent is inviolable under article 29 of the
Vienna Convention and he may not be detained or arrested. This
principle is the most fundamental rule of diplomatic law and is the
oldest established rule of diplomatic law. States recognize that the
protection of diplomats is a mutual interest founded on functional
requirements and reciprocity. 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.
The most blatant example of the breach of the obligation to protect
diplomats was the holding of the US diplomats as hostages in Iran in
1979-80. However, in exceptional cases, a diplomat may be arrested
or detained on the basis of self-defense or in the interests of
protecting human life
Article 30(1) provides for the inviolability of the private residence of
a diplomatic agent, while article 30(2) provides that his papers,
correspondence and property are inviolable.
As far as criminal jurisdiction is concerned, diplomatic agents enjoy
complete immunity from the legal system of the receiving
state,(article 31(1)) although there is no immunity from the
jurisdiction of the sending state. (article 31(4)) 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.
By article 31(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 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 customs duties
and inspection.
The 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 authorized
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.
Members of the administrative and technical staff (and their
households), if not nationals or permanent residents of the receiving
state, may similarly 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, while members of the service staff) who are not
nationals or permanent residents of the receiving state, benefit from
immunity regarding acts performed in the course of official duties.
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. In R v. Governor of Pentonville Prison, exparte
Teja 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'.
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 hosted. 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. 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. 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.
Article 41(1) provides that it’s the duty of all persons enjoying
immunity 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.
The DR Congo/Uganda case highlights the above principles of
diplomatic immunity. The ICJ in its ruling noted.
On the issue of diplomatic protection The Court started its comments
on this issue by recalling the timeless character of the 1961 Vienna
Convention, which applies irrespective of the state of peace or that of
armed conflict. In so doing, it set out the basic principles of diplomatic
immunity as formulated in articles 44 and 45 of this document.
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.
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.
In terms of article 22(1) of the 1961 Vienna Convention, the
premises of the mission are inviolable, and agents of the receiving
state are not to enter them without the consent of the mission. This
rule is absolute. The prohibition extends to the furnishings and other
property on the premises, the means of transport, which are all
immune from search, requisition, attachment or execution. Thus, in
the Case Concerning United States Diplomatic and Consular Staff in
Tehran: United States of America v Iran, the ICJ strongly reaffirmed
the fundamental character of this rule of general international law
when it stated that: 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.
The Court insisted that such obligations concerning the inviolability
of the members of a diplomatic mission and of the premises, property
and archives of the mission continued even in cases of armed conflict
or breach of diplomatic relations.
Article 24 of the Vienna Convention makes the archives and
documents of the mission inviolable at any time and wherever they
may be. Although the Vienna Convention is silent about the meaning
of „archives and documents‟, article 1(1)(k) of the 1963 Vienna
Convention on Consular Relations defines the term „consular
archives‟ to include 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
Moreover, article 29 of the Vienna Convention contains one of the
most fundamental and oldest established rules of diplomatic law;
namely the rule that the person of a diplomatic agent is inviolable.
He may not be arrested, detained or assaulted. The receiving state
has to take all appropriate measures to prevent any attack on the
person, freedom or dignity of diplomatic agents. This prohibition is
reiterated and consolidated by the 1973 UN Convention on the
Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, which enjoins state
parties to make attacks upon protected persons a crime under
domestic law with appropriate penalties and to take such measures
as may be necessary to establish jurisdiction over these crimes.107
In addition, article 8 obliges state parties to extradite or prosecute
alleged offenders.
Finally, article 30(1) of the 1961 Vienna Convention, which
reflects the accepted rule in customary law, protects the private
residence of diplomatic agents from any forms of violation, whereas
article 30(2) provides for the inviolability of his papers,
correspondence and property
The Court in the Congo/Uganda case found that attacks on
Uganda’s diplomatic premises in Kinshasa indeed occurred, and that
Ugandan diplomats were maltreated by members of the Congolese
armed forces on embassy premises and at Ndjili International
Airport. In accordance with the arguments developed above, it held
that the DRC, through its conduct, has breached its obligations under
articles 22 and 29 of the Vienna Convention
Concerning the issue of the confiscation or removal of Uganda’s
property and archives, the Court relied on its reasoning in the Iranian
Hostages case, according to which the Vienna Convention does not
only protect foreign missions from violation by the receiving state but
also obliges the receiving state to prevent any other person or entity
from doing so. On this premise, the Court considered that it had
sufficient evidence indicating that Uganda’s property, archives and
working files have been removed. Accordingly, it found the DRC
responsible for acting in violation of its obligations under article 24
of the Vienna Convention.
Waiver of immunity
By article 32 of the 1961 Vienna Convention, the sending state may
waive the immunity from jurisdiction of diplomatic agents and others
possessing immunity under the Convention. Such waiver must be
express. Where a person with immunity initiates proceedings, he
cannot claim immunity in respect of any counterclaim directly
connected with the principal claim. 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.
In general, waiver of immunity is unusual, especially in criminal
case. While waiver of immunity in the face of criminal charges is not
common, 'it is routinely sought and occasionally granted. However,
Zambia speedily waived the immunity of an official at its London
embassy suspected of drugs offences in 1985.
In Fayed v. Al-Tajir the Court of Appeal referred to an apparent waiver
of immunity by an ambassador made in pleadings by way of defense.
Kerr LJ correctly noted that both under international and English
law, immunity was the right of the sending state and that therefore
'only the sovereign can waive the immunity of its diplomatic
representatives. They cannot do so themselves.
In view of the principle that immunities adhere to the state and not
the individual concerned, such waiver must be express and
performed clearly by the state as such.
CONSULAR PRIVILEGES AND IMMUNITIES: THE VIENNA
CONVENTION ON CONSULAR RELATIONS,
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 authorization (exequatur)of a receiving state.
They are entitled to the same exemption from taxes and customs
duties as diplomats.
Article 31 emphasizes 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, emphasizing the
inviolability of the official correspondence of the consular post and
establishing that the consular bag should be neither opened nor
detained. 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(1) constitutes a critical provision and, as the International
Court emphasized in the LaGrand (Germany v. USA) case, it
establishes an interrelated regime designed to facilitate the
implementation of the system of consular protection. Article
36(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
In particular, article 36(l)(b) provides that if the national 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.
In the LaGrand brothers case (Germany v USA), the two brothers
were convicted of murder in the USA and were subsequently
executed. The United States confirmed that the competent
authorities of the State of Arizona did not inform Walter and Karl
LaGrand "without delay" that they could request that a German
consular post be notified of their arrest and detention, as required by
Article 31(1)(b) of the Convention. Accordingly, the United States
acknowledged that, as a result of the failure to inform Walter and
Karl LaGrand of their right to consular notification, there was a
breach of a legal duty owed by the United States to the Federal
Republic of Germany under the Vienna Convention and issued an
apology. The Court held that the US had breached its obligations under
article 36(1) by not informing the LaGrand brothers of their rights under
that provision 'without delay.
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 minimizes the inconvenience to the
exercise of consular functions