Diplomatic Law

Diplomatic Law

the rule of diplomatic law constitutes a self contained regime which on the one hand lays down the receinv=g states obligations regarding facilities,
1. privileges and immunities to be accorded to diplomatic missions and foresee the possible abuse by members of the mssion and specifies the means at
  1. at the disposal of the receiving state to counter any such abuse...(TEHRAN CASE)
Vienna convention on Diplomatic relation, 1961
1. article 2
  1. no right as such to diplomatic relations, they exist by virtue of mutual consent
2. article 4
  1. the sending state must ensure that consent is gained from recieving state for proposed head of mission
    1. reasons for any refusal do not have to be given
3. article 9
  1. the receiving state can at any time declare the any member of the mission as persona non grata and thus obtain theire removal
4. Article 3
  1. main functions of a diplomatic mission revolve around representation and protection of the interests and nationals of the sending state, as well as
    1. the promotion of information and friendly relations
5. article 41(1)
  1. duty of all persons enjoying privileges and immunities to respect the laws and regulations of the recieving state and not to interfere in the internal
    1. affairs of that state
6. article 13
  1. the head of the mission is deemed to have taken up his functions in the receiving states upon the presention of his credentials
7. Article 22
  1. the premise of the mission are inviolable and that agents of the recieving state are not to enter them without the consent of the mission
    1. the receiving state is under a duty a special duty to protect the mission premises from intrusion and damage or impairment of its dignity
      1. statement by pres. Johnson after demonstrations outside US embassy in moscow
8. Article 45(a)
  1. after a break in diplomatic relations, the receiving state must respect and protect the premises of the mission
    1. After the libyan embassy attack, the UK's view was that this did not mean that the premises continue to be inviolable
9. Article 27 (Diplomatic Bag)
  1. 27(3) & (4)
    1. shall not be opened or detained
      1. requirement that the diplomatic bag is clearly identifiable i.e. visible external marks of its charecter and only contain diplomatic documents
        or articles intended for official use Art 27(4)
        Dikko incident: former nigerian minister kidnapped and placed in crate which was claimed to have a diplomaric status..no seal so not d.bag
        if suspicion that diplomatic bag/crate contains humans, there is an overriding duty to protect human life..foreginaffairs committe report
  2. draft articles 1989
    1. consular bag are afforded similar protection except where receiving/transist stae has serious reason to beleive bag contains prohibited article
      1. i, the bag may be opened and searched in the prescence of an authorised represenataive. if refused, the bag nust be sent back to place of origin
        art 28 of draft articles on the dipl. courier and the dipl. bag 1989...adopted by int law commission
    2. the diplomatic bag courier is to enjoy immunity and inviolabilty akin to that governing diplomats...not liable to arrest of detention (article 10)
      1. immunity from civil and criminal jurisdiction of receiving/transit state in respect of all acts performed in the exercise of his functions (Article 18
      2. his immunities and privileges last from the moment he enters the territory of the recieving/transit state until he leaves (article 21)
10. Article 23
  1. Assumption of exception from taxation respect of the mission premises
  2. Alcom LTD v Republic of Cambodia: current accounts are generally diplomaticallyimmune
11. Article 24
  1. documents and archives of the mission are inviolable at any time and wherever they may be
12. Article 29
  1. the person of a diplomatic agent is unviolable and he may not be detained or arrested
    1. states recognise that protection of diplomats is a mutual interest based on functional requirements and reciprocity (US supreme court (Boos v Barry)
      1. most clear breach was hostage crisis 1979-80..ICJ held inaction of iranian govt constituted a 'clear and serious violation' of article 29
      2. maltreatment amounts to breach of obligations under article 29
13. Article 30(1)
  1. Inviolability of personal residence of a diplomatic agent
    1. Article 30(2)
      1. his papers, corresondence and property are inviolable
14. Article 31(1)
  1. diplomats immune from civil and administrative jurisdiction of the state in which they are serving except under 3 circumstances
    1. where the action relates to private property immovable situated within the host state
    2. in litigation relating to succession matters in which the diplomat is involved as a private person e.g. executor or an heir
    3. unofficial professional or commercial activity engaged in by the agent
  2. 31(2) a diplomat cannot be obliged to give evidence as a witness
15. Article 36(1)
  1. personal baggage of diplomat is exempt from inspection unless serious grounds for presuming it contains articles not covered by specific exemptions
16. Article 37
  1. members of the family of a diplomatic agent are covered by same exemptions under art29-36
17. Article 32
  1. sending state may waive the immunity from jurisdiction under the convention
    1. such waivers must be express (public prosecutor v Orhan Olmez)
    2. only the sovereign can waive the immunity of its diplomatic representatives (Fayed v Al-Tajir)
international law continues to apply notwithstanding the existence of a state of armed conflict between the states concerned (Congo v Uganda)

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