DIPLOMATIC LAW

Q. How do States establish diplomatic missions?

A. States establish diplomatic missions by mutual consent.

Q. Is there a distinction between establishment of diplomatic relation and establishment

of diplomatic mission?
A. Yes. A State may establish diplomatic relation with another State without agreeing to
establish diplomatic mission thereby.

The consent of a State to establish a diplomatic mission is separate from or independent

of its consent to establish diplomatic relation. It may agree to have diplomatic relations
but not to establish diplomatic mission. (Of course, establishment of diplomatic mission
may be based on the already existing diplomatic relations.) This may be implied from
Article 2 of the Diplomatic Convention which states that between States and of
permanent diplomatic missions takes place by mutual consent.

Q. Does the establishment of diplomatic relation create the obligation to establish

diplomatic mission?
A. No. A state may, in fact, conduct its diplomatic relations with another State without
establishing a diplomatic mission, i.e., through a non-resident head of diplomatic
mission. A State may withdraw its diplomatic mission while indicating that this act does
not constitute a breach or severance of diplomatic relations.

Q. What are the functions of a diplomatic mission?

A. Among the functions of a diplomatic mission, as specified in Article 3(1) of the
Diplomatic Convention, are:
(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; [and]

(e) promoting friendly relations between the sending State and the receiving State,
and developing their economic, cultural, and scientific realtions.

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 This provision embodies the traditional functions under customary international law,
namely, representation, protection, negotiation, and observation. The additional
function in item (e) above is derived from the recommendation of the Philippines,
Czechoslovakia, and Yugoslavia.

Two additional functions of the mission are added by Articles 45 and 46 of the
Diplomatic Convention, Namely:

1. if diplomatic relation is severed, it may entrust the protection of its nationals to

the diplomatic mission of a third State acceptable to the receiving State; and

2. it may protect the interest of a third State by agreement with the receiving State,
if there is no diplomatic relations between the third State and the receiving
State.

Q. May a diplomatic mission perform consular functions?

A. Yes. In determining the functions of a diplomatic mission, Article 3 of the Diplomatic
Convention adds in paragraph 2 that “nothing in this adds in Convention shall be
construed as preventing the performance of the consular function by diplomatic
mission.”

Note that under Article 2(2) of the Consular Convention, “The consent given to the
establishment of diplomatic relations between two States implies, unless otherwise
stated, consent to the establishment of consular relations.” Also, under Article 3 of the
Consular Convention consular functions are exercised by diplomatic missions. Article 70
of the Consular Convention regulates the exercise of consular functions by a diplomatic
mission.

The rule in paragraph 2. Article 3 of the Diplomatic Convention referred to above, does
not in any way impose a duty on the mission to perform consular functions.

Q. Give some rules governing the exercise of consular functions by a diplomatic mission.
A. They are, inter alia:
1. members of the diplomatic mission exercising consular functions shall continue
to
Be governed by the Diplomatic Convention as to privileges and immunities, not
by the Consular Convention (cc 70.4);
2. the exercise of consular functions by members of the diplomatic mission shall be
in accordance with the consular Convention rather than the Diplomatic
Convention (cc 3 and 70.1);

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 3. the names of members of the diplomatic mission performing consular functions
shall be notified to the Ministry of Foreign Affairs of the receiving State (cc 70.2);

4. the diplomatic mission may primary address or deal with the local authorities of
the receiving State. If allowed by the laws of the receiving State or by
international
Agreement, it may also deal with the central authorities of that State (cc 70.3).

Q. As a requirement in the discharge of consular function, must a member of the

diplomatic mission obtain an exequatur?
A. General state practice supports the view that it is not necessary to obtain an exequatur.
In the first place, he may not be the head of the consular post. However, his name is
required to be notified to the ministry of foreign Affairs of the receiving State as among
those who perform consular functions on a regular basis (See DC 3.69) .

Q. May a member of a diplomatic mission be formally appointed as a consular officer?

A. Practice of States supports the view that this may be done. In this dual appointment, he
will deal with either the local or central authorities of the receiving State corresponding
to the category of functions he is exercising at each time.

Q. In the performance of its functions, what duties does a diplomatic mission owe to the
receiving State?
A. Among the duties of a diplomatic mission are:

1. the duty “to respect the laws and regulations of the receiving State (DC 41.1);

2. the duty “not to interfere in the internal affairs of that State”(DC 41.1).

Q. What is an agrément?
A. agrément is an approval given by the receiving State to the person who the sending
State proposes to be accredited as chief of its diplomatic mission (DC 4.1).

Agrément comes before formal nomination and public announcement of this

appointment by the receiving State. It is a response to the inquiry by the sending state
as to the acceptability of the diplomatic agent proposed to be accredited. The
procedure does followed by the two States is called agréation. Note that agrément is
only required with respect to the head of mission.

This is an exception to the general rule in Article 7 of the Diplomatic Convention that
“the sending State may freely appoint the members of the staff of the mission”.

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 However, in Article 7 the Diplomatic Convention requires approval of the names of the
military, naval or air attaché by the receiving State.

The requirement of agrément is justified by the need for a head of mission to effectively
conduct diplomatic relations between the sending State and the receiving State.
Q. If the receiving State refuses agrément, is it obliged to give reason therefor?
A. No. The Diplomatic Convention provides in paragraph 2. Article 4 that it is not obliged to
do so. This rule is intended to avoid possible conflict that a reason for refusal may
create.

Q. May an agrément be revoked after it has been given?

A. Yes, if the head of mission is not yet present in the territory if the receiving State. If he is
already present, the receiving State may ask for his withdrawal, or may declare him
persona non grata.

It may be observed that by such time he has already begun to enjoy his diplomatic
privileges and immunities. Paragraph 1, Article 39 of the Diplomatic Convention says
that he shall enjoy them “from the moment he enters the territory of the receiving
State.”

Q. May a State accredited a head of mission to more than one State?

A. Yes, provided there is no express objection by any of the receiving State (DC 5.1).

It is requires that the sending State give notification to the receiving State as to the
double or multiple accreditation (DC 5.1).

This requirement, however, does not constitute a duty on the part of the sending States
to ask the permission of the receiving State.

In case of double or multiple accreditation, a diplomatic mission in the State where the
head of mission does not have his permanent seat may be headed by a change
d’affaires interim (DC 5.2).

At one time, Belgium had one head of mission represented inn more than 69 States, and
a U.S. ambassador in six other States. At present, the Philippine ambassador in Nairobi,
Kenya is also accredited to 13 other East African States.

Q. May the same person be accredited as the head of mission by two or more States to
other State?
A. Yes, if the receiving State does not object (DC 6). This arrangement may be convenient to
new States or those with limited financial resources.
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Q. May a State’s head of mission act as its representative to any international
organization?
A. Yes, as allowed by Paragraph 2, Article 5 of the Diplomatic Convention.

Note that this rule does not speak of notification to or objection from the receiving
State.

Q. May the members of the diplomatic mission be nationals of the receiving State or of a
third State?
A. It is permissible under customary international law that a member of the diplomatic
mission may be a national of the receiving State. Paragraph 1, Article 8 of the Diplomatic
Convention provides, thus: “Members of the diplomatic staff of the mission should in
principle be if the nationality of the sending State”. However, paragraph 2, Article 8 of
that Convention requires consent of the receiving State as a pre-requisite to the
appointment of its nationals. The consent may be withdrawn any time. It is left to the
internal law of States to provide for express prohibition on their nationals against
service in the diplomatic mission of the other States.

As to the nationals of third States, it is not settled in customary international law as to

their appointment to the diplomatic mission of the sending State. But under paragraph
3, Article 8 of the Diplomatic Convention “nationals of a third State who are not also
nationals of the sending State” may be appointed as members of the mission with the
consent of the receiving State.

Q. Under what conditions may a receiving State declare persona non grata the head of
diplomatic mission or any member of the staff of the sending State’s diplomatic
mission?
A. The receiving State may exercise this right at any time. It has no obligation to explain its
decision. It may do so before the arrival of the diplomatic agent in question in its
territory (DC 9.1).

Q. How shall the sending State respond to this declaration?

A. The sending State has the duty to recall the person concerned or it may terminate his
functions in its diplomatic mission (DC 9.1),

If it falls to comply with this duty within a reasonable time, the receiving State “may
refuse to recognize the person concerned as a member of the mission” (DC 9.2).

Q. How is the size of the diplomatic mission determined?

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A. It, may be determined by agreement between the sending State and the receiving State.
In the absence of specific agreement, paragraph 1, Article 11 of the Diplomatic
Convention authorizes the receiving State to “require that the size of a mission be kept
within limits considered by it to be reasonable and normal having regard to
circumstances and conditions in the receiving State and to the needs of the particular
mission.”

The agreement becomes the method to achieve the balance of interest between the
two States. Note, however that absent an agreement, it is the receiving State that
determines what is “reasonable and normal” size of the mission, thus introducing a
subjective test.
Q. May the receiving State refuse to accept officials of a particular category from the
sending State?
A. Yes, Paragraph 2, Article 11 of the Diplomatic Convention provides that “the receiving
State may equally, within similar bounds and on a non-discriminatory basis, refuse to
accept officials of a particular category.”

The standard “within similar bounds” apparently refers to that spelled out in paragraph
1 of Article 11, which is treated in 3.19 above.

The requirement of non-discrimination is further applied in Article 47 of the Diplomatic

Convention, i.e., “the receiving State shall not discriminate as between State.”

Q. At what point may a head of mission be said to have the commenced his official
functions in the receiving State?
A. It is either on the date of the presentation of credentials, or on the date of notification
of arrival, “in accordance with the practice prevailing in the receiving State” (DC 13.1).
Which rule to apply is thus to the receiving State, provided the rule of practice chosen
must be “applied in uniform manner” (DC 13.1).

Q. Among the heads of mission, how is precedence determined in the presentation of

credentials in the receiving State?
A. This is to be determined by the date and time of arrival of the head of mission ( DC 13.2).

Q. What are the classes of heads of missions?

A. These are:

(1) Ambassadors or nuncios accredited to Heads of State;

(2) Envoys, ministers, and internuncios accredited to Heads of State; and

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 (3) Chargés d’affaires accredited to ministers of Foreign Affairs (DC 14.1).

Q. In each class, how is precedence determined?

A. By the date and time at which they commence their functions, as set out in 3.21 above
(DC 16.1)

Q. How is the doyen (dean) of the diplomatic corp chosen and what are his functions?
A. As established by practice, the head of mission who enjoys seniority on account of date
of arrival becomes the doyen of the diplomatic corp. Some states have accepted the
practice of regarding the representative of the Holy See automatically as the doyen.
The Diplomatic Convention does not define the function of the doyen of the diplomatic
corps. By the tradition he acts as spokesman of the diplomatic corps on matters of
common concern to his diplomatic colleagues. Based on informal consultation with
them he may speak on behalf of the diplomatic corps. The receiving state may
communicate and consult that body through the doyen

Q. What is a chargé d’affaires ad interim?

A. He is a member of the staff of the diplomatic mission who “shall act provisionally as
head of the mission.” If the post of the latter is vacant or is unable to perform his
functions. (DC 19.1).

It is required that the Ministry of Foreign Affairs of the receiving State be informed of
the name of the chargé d’affaires ad interim by either the head of mission or, in case he
is unable to do so, by the Ministry of Foreign Affairs of the sending State (DC 19.1).

This rule leaves to the sending State to decide that its head of mission is “unable to
perform functions.”

Paragraph 2, Article 19 of the Diplomatic Convention allows the sending State, where no
member of the diplomatic staff of the mission is present or available, to designate “a
member of the administrative and technical staff,” provided that he takes charge of the
“current administrative affairs of the mission.” He is not entitled to represent the
sending State or perform diplomatic functions. His privileges and immunities remain to
be pertaining to those of the administrative and technical staff. Such designation may be
made only with the consent of the receiving State.

Q. Is the use of the flag and emblem of the sending State a matter of right in the territory
of the receiving State?
A. Yes, but as provided by Article 20 of the Diplomatic Convention, thus: “The mission and
its head shall have the right to use the flag and emblem of the sending State on the

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 premises of the mission, including the residence of the head of mission, and on his
means of transport.” The right does not extend to public transport used by the head of
mission.

Q. What is the underlying purpose or theoretical basis of diplomatic privileges and

immunities?
A. As expressed in the preamble of the Vienna Convention on Diplomatic Relations, “the
purpose of such privileges and immunities is not to benefit individuals but to ensure the
efficient performance of the functions of diplomatic missions as representing States.”

In preparing the draft articles of the said Convention, the International Law Commission
(ILC) made reference to the following formulation:

(2) There is now a third theory which appears to be gaining ground in modern
times, namely, the “functional necessity” theory which justifies privileges and
immunities as being necessary to enable the [diplomatic] mission to perform its
actions.

(3) The ILC was guided by this third theory in solving problems on which practice
gave no clear pointers, while also bearing in mind the representative character
of the head of the mission and of the mission itself (ILC Yearbook, 1958, vol. II pp.
94-5).

Q. What are the other relevant theories?

A. In its report cited above, the ILC stated thus;

Among the theories that have influenced the development of diplomatic

privileges
and immunities, the Commission will mention the “extraterritoriality” theory,
according to which the premises of the [diplomatic] mission represent a sort of
extension of the territory of the sending State; and the “representative
character” theory, which bases such privileges and immunities on the idea that
the diplomatic mission personifies the sending State.

Thus, the three main theories in the basis of diplomatic privileges and immunities are
extra-territoriality theory, representational theory, and the functional necessity theory.

Q. Is the functional necessity theory the only justification for diplomatic privileges and
immunities?

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A. Although the theory of functional necessity appears to be the main purpose or
justification, note that the preambular paragraph quoted earlier in 3.28 above speaks of
“diplomatic missions as representing States” (emphasis added). This is the result of an
amendment to the draft article intended to reflect the representational theory.

Q. Explain the fundamental rule that “the premises of the mission shall be inviolable.”
A. Inviolability consist of two elements:

1. The duty of the receiving State to refrain from entering the premises, except
with the consent of the head of mission (DC 22.1); and

2. The “special duty” of the receiving State to protect the premises “against any
intrusion or damage and to prevent any disturbance of peace of the mission
or impairment of its dignity” (DC 22.2).

These are the most important privileges of the diplomatic mission in ensuring the
performance of its functions without interference or restraint.

The first element pointed out above means that the agents of the receiving State “may
not enter… [the premises], except with the consent of the head of mission” ( DC 22.1).
Hence no legal writ may be served within the premises and no sheriff or server of the
legal process may be allowed to deliver a summons.

Paragraph 3, Article 22 of the Diplomatic Convention adds that “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.”

The inviolability rule continues to apply even “if diplomatic relations are broken off, or if
a mission is permanently or temporarily recalled.” In that case, “the receiving State
must… respect and protect the premises of the mission, together with its property and
archives.” This holds true even in times of armed conflict (DC 45(a)).

Inviolability extends to the archives and documents of the mission “at any time and
wherever they may be” (DC 24).

It also covers all official correspondence relating to the diplomatic mission and its
function (DC 27.2).

Paragraph 1, Article 30 of the Diplomatic Convention provides that the “private

residence of a diplomatic agent shall enjoy the same inviolability and protection as the

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 premises of the mission,” to complement paragraph 1, Article 22 in relation to Article
1(i) of the Diplomatic Convention, as discussed above. Inviolability covers his papers and
correspondence, and property of not private, professional and commercial nature as
provided in paragraph 3 Article 31 of the said Convention (DC 30.2).

Q. What does the “premises of the mission include?

A. In the first place , it means “the buildings or parts of the buildings and the land ancillary
thereto, irrespective of ownership, used for the purposes of the mission including the
residence of the head of mission” (DC 1(i)).

The mission need not to be the owner of the premises. As pointed out by the ILC in its
1958 draft provision on inviolability,

The expression “premises of the mission” includes the buildings for the purpose
of the mission, whether they are owned by the sending State or by the sending
State or by a third party acting for its account or are leased or rented. The
premises comprise, if they consist of a building, the surrounding and other
appurtenances, including the garden and the park (ILC Yearbook, vol. II p. 95,
1958).

With prior consent of the receiving State, office forming part of the mission may be
established in “localities other than those in which the mission itself is established” ( DC
12). There are all covered by the inviolability rule.

Q. Does the inviolability rule admit of exception?

A. The rule appears to be absolute and no exceptions are allowed. Discussions in the ILC as
well as in the Vienna Conference on Diplomatic Relations on the rejection of proposed
amendments that would qualify or restrict the inviolability rule support this conclusion
(See ILC Yearbook, 1957, Vol I, pp. 55-56, and 1958, vol. I pp. 135-163 and vol. II, pp. 20,
24. See also Philippe Cahiers, “Vienna Convention on Diplomatic Relation,” International
Conciliation. No. 571, Jan, 1969, p. 21).

Q. State the rule on the personal inviolability of a diplomatic agent.

A. This rule is stated in Article 29 of the Diplomatic Convention which provides :

The person of a diplomatic agent shall be inviolable. He shall not be liable to any
form of arrest or detention. The receiving State shall treat him with due respect
and shall take all appropriate steps to prevent any attack on his person,
freedom, or dignity.

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 In its commentary on the relevant draft article, the ILC observes: “Being inviolable, the
diplomatic agent is exempt from certain measure would amount to direct coercion. This
principle does not exclude either self-defence or, in exceptional circumstances,
measures to prevent the diplomatic agent from committing crimes or offences” (ILC
Yearbook, 1957, vol. I, pp. 209-210; 1958, vol ii, p. 97).

Personal inviolability consist of two aspects: the duty of the receiving State to refrain
from exercising its sovereign rights, and the duty to treat him with due respect and
protect his person, freedom or dignity from physical interference by others.

In the Hostage Case, the International Court of the Justice has clarified that compliance
with Article 29 on the Diplomatic Convention does not mean “that a diplomatic agent
caught in the act of committing an assault or other offense may not, on occasion, be
briefly arrested by the police of the receiving State in order to prevent the commission
of the particular crime’ (Case Concerning the United State Diplomatic and Consular Staff
in Tehran, ICJ Reports, 1980, para. 86).

Q. What is the scope of the diplomatic agent’s personal inviolability?

A. It covers –

1. His private residence which “shall enjoy the same inviolability and protection
as the premises of the mission” (DC 30.1);

2. Papers and correspondence; and

3. Property, with the exception of those provided in paragraph 1, Article 31 of

the Diplomatic Convention, as discussed in 3.37 below.

The private residence of the head of mission could be an apartment, a room in a hotel,
or a house. Note the commentary of the ILC:

Because this inviolability arises from that attaching to the person of the
diplomatic agent, the expression “private residence of a diplomatic agent” (in
Article 30 of the Diplomatic Convention) necessarily includes even a temporary
residence of the diplomatic agent (ILC Yearbook, 1958, vol. I p. 144; 1958, vol II,
p. 98).

With respect property, paragraph 2 Article 36 of the Diplomatic Convention provides

one additional exception to inviolability: the personal luggage of a diplomatic agent may
be inspected in certain extraordinary cases.

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Q. What is the rule on immunity from jurisdiction on the part of the diplomatic agent?
A. As provided in paragraph 1, Article 31 of the Diplomatic Convention, the rule states:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall enjoy immunity from its civil and administrative
jurisdiction…

Q. Does immunity from civil and administrative jurisdiction admit of exceptions?

A. Yes. These are listed in Paragraph 1, Article 31 of the Diplomatic Convention as follows:

(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 purpose 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
behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by

the diplomatic agent on the receiving State outside his official
functions.

Q. Explain further personal immunity from jurisdiction and its exceptions.

A. In the first place, note that the immunity pertain to the diplomatic agent. It does not
refer
the diplomatic mission. Outside the exception listed in paragraph 1, Article 31 of the
Diplomatic Convention above, immunity applies to all acts of the diplomatic agent, both
private and official.

Immunity from jurisdiction is not exemption form the application of substantive laws of
the receiving State, but exception from judicial jurisdiction. Immunity from civil and
administrative jurisdiction covers direct claims against the diplomatic agent himself or
on his property and covers family and martial matters.

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 As to exceptions to immunity, Article 31(b) of the Diplomatic Convention deals with
private property which the diplomatic agent owns in his personal capacity. It is
restricted to actions in rem where title or possession is in issue in regard to immovable
property.

With respect to Article 31 (a) on succession, note the distinction implied as to the status
by which the diplomatic agent is engaged in succession: he may either be involved as a
private person or in his official capacity “on behalf of the sending State.” The exception
applies only if he is involved “as a private person and not on behalf of the sending
State.” In his official capacity he may act on behalf of the sending State as illustrated in
the case of the Philippines where a “testamentary disposition …[is[ made to the State,
provinces, [or] municipal corporations” under Article 1026 of the Civil Code, or in
intestate succession under Article 1011 of the Civil Code where by reason of “default of
persons entitled to succeed … [t]he State shall inherit the whole estate.” In such cases
of official representation, immunity applies.

Article 31 (c) of the Diplomatic Convention should be read together with Article 42 of
this Convention which provides: “A diplomatic agent shall not in the receiving State
practice for personal profit any professional or commercial activity.” A commentator
has observed: “This last exception is probably redundant since Article 42 forbids the
diplomatic agent from engaging in such activities” (Philipe Cahier, “Vienna Convention
on Diplomatic Relations,” international Conciliation, January 1969, No. 571, p.29).
However, Article 31 (c) may still have room for application where a professional activity
may not be practiced “for personal profit”, which is outside the Article 42 prohibition.
Also, in case the diplomatic agent undertakes a professional or commercial activity in
brach of Article 42, Article 31 (c) may be availed of as remedy against him.

Q. Who are the other persons entitled to immunity from jurisdiction?

A. In addition to the diplomatic agent, the following persons shall also enjoy immunity
from jurisdiction:

1. members of the family of the diplomatic agent forming part of his household,
who are not nationals of the receiving State (DC 37.1);

2. as to criminal jurisdiction, members of the administrative and technical staff of

the diplomatic mission, as well as members of their families forming part of their
respective households, who are not nationals of or permanent residents in the
receiving State. But as to civil and administrative jurisdiction, immunity shall not
extend to “acts performed outside the course of their duties” (DC 37.2); and

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 3. members of the service staff of the diplomatic mission, who are not nationals of
or permanent residents in the receiving State, with respect to “acts performed in
the course of their duties” (DC 37.3).

Q. May immunity from jurisdiction be waived?

A. Yes. It is required, however, that the waiver be made by the sending State itself and
that it must be express (DC 32.1 AND 32.2).

This rule applies to all proceedings; it makes no distinction between criminal jurisdiction
and civil or administrative proceedings. How the authority of the sending State to make
such a waiver is to be expressed formally may be provided by internal law of that State.
The question of authority may become a problem of evidence in the court of the
receiving State. State practice indicates that the authority to exercise the waiver is
through appropriate sovereign organs and not by the diplomatic agent or official
himself.

Q. Is a diplomatic agent under obligation to give evidence as a witness?

A. No. The Diplomatic Convention in paragraph 2, Article 32 states: “A diplomatic agent is
not obliged to give evidence as a witness.”

The sending State, however, may allow or authorize him in specified matters to give
evidence as a witness, especially in a case not related to his official functions and in the
interest of justice.

See 3.99 and 3.100 below with respect to consular officers.

Q. State and explain the immunity of diplomatic agent from execution.

A. The general rule is set out in paragraph 3, Article 31 of the Diplomatic Convention that
“No measures of execution may be taken in respect of a diplomatic agent.”

This is subject to exception in cases listed in paragraph 1 of the said provision, as dealt
within 3.37 and 3.38b above. Further, it is subject to the proviso that “the measures
concerned can be taken without infringing the inviolability of the person and residence
of the diplomatic agent” (DC 31.3).

Immunity from execution is derived from the principles of inviolability and of immunity
discussed earlier.

Note that, as set out in paragraph 4, Article 32 of the Diplomatic Convention, waiver of
jurisdiction in civil and administrative proceedings “shall not be held to imply waiver of
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 immunity in respect of the execution of the judgment, for which a separate waiver shall
be necessary.”

Q. What is the rule on freedom of movement on the part of the members of the
diplomatic mission?
A. The rule consists of the duty of the receiving State to “ensure to all members of the
mission freedom of movement and travel in its territory”, but subject to the laws of the
receiving State “concerning zones entry into which is prohibited or regulated for reason
of national security” (DC 26). As the ILC notes, the creation of such zones “must not, on
the other hand, be so extensive as to render freedom of movement and travel illusory”
(ILC Yearbook, 1958, vol II, p.96).

Q. How does modern diplomatic law provide for freedom of communication on the part
of the diplomatic mission?

A. It provides that:

1. “the receiving State shall permit and protect free communication on the part of
the mission for all official purposes” (DC 27.1);

2. “in communication with the Government and the other missions and consulates
of the sending State, wherever situated, the mission may employ all appropriate
means, including diplomatic couriers and messages in code or cipher. … [and]
may install and use a wireless transmitter only with the consent of the receiving
State” (DC 27.1);

3. “the official correspondence of the mission shall be inviolable “ (DC 27.2); and

4. “the diplomatic bas shall not be opened or detained” (DC 27.3).

Q. Is the diplomatic bag inviolable?

A. Taking into account the conclusions of the ILC as well as of the Vienna Conference on
Diplomatic relations, the rule that “the diplomatic bag shall not be opened or detained”
is perforce to be interpreted as an unconditional protection and reflects the intent of
the ILC commentary that “the diplomatic bag is inviolable” (ILC YEARBOOK 1958, VOL. I,
PP. 138-39; 1958, VOL. ii, PP. 96-7). Compare with 3.92 below in regard to consular bag.

Q. What is the nature and scope of exemption from taxation in diplomatic law?
A. Exemption from taxation by the receiving State pertains to the sending State and to the
diplomatic agent.
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 1. As to the sending State, exemption applies to “the premises of the mission,”
whether owned or leased, with respect to “all national, regional or municipal
dues and taxes” (DC 23.1).

2. As to the diplomatic agent, exemption covers “all dues and taxes, personal or
real, national, regional or municipal, excluding those spelled out in 3,47 below
(DC 34).

Generally, a diplomatic agent is exempt from tax on income in the receiving State arising
from the discharge of his official functions and on private income from sources outside
of the receiving State.

Q. Are there exceptions to exemption from taxation?

A. Yes. These are:

1. as to the receiving State, exemption does not include dues or taxes which
“represent payment for specific services rendered” (DC 23.1). This should refer
to charges for services or goods which are of direct benefit to the diplomatic
mission and the value of the charges is related to the cost of such series or
goods;

2. as to the diplomatic agent, exemption excludes the following:

(a) indirect taxes of a kind which are normally incorporated in the price of goods
or services;

(b) dues and taxes on private immovable property situated in the territory of the
receiving State, which he does not hold on behalf of the sending State for
purposes of the mission;

(c) estate, succession or inheritance duties levied by the receiving State, other
than those imposed on movable property “the presence of which in the
receiving State was due solely by the presence of the deceased as a member
of the mission or as a member of the family of a member of the mission”. (DC
34(c) and 39.4);

(d) dues and taxes on private income having its source in the receiving State (DC
34(d));

16
 (e) capital taxes on investments made in commercial undertakings in the
receiving State (DC 34 (d));

(f) charges levied for specific services rendered (DC 34 (e));

(g) registration, court or record fees, mortgages dues and stamp duty, with
respect to immovable property (DC 34 (f)).

Q. Who are entitled to exemption from taxation in addition to the diplomatic agent?
A. They are:

1. members of his family forming part of the household, if they are not
nationals of the receiving State (DC 37.1);
2. members of the administrative and technical staff of the mission,
including members of their families forming part of the household, if they
are not nationals or permanent residents of the receiving State (DC 37.2);

3. members of the service staff of the mission, if they are not nationals and
permanent residents of the receiving State, with respect to “emoluments
they receive by reason of their employment” (DC 37.3); and

4. private servants of members of the mission, if they are not nationals or

permanent residents of the receiving State, with respect to “emoluments
they receive by reason of their employment” 9DC 37.4).

Q. Is the diplomatic agent entitled to any other privileges?

A. Yes. These are:

1. exemption from personal services and all other public service “of any kind
whatsoever,” including military obligations such as those connected with
requisitioning, military contributions, and billeting (DC 35);

2. exemption from social security provisions with respect to services rendered for
the sending State, if enforced in the receiving State (DC 33.1); and

3. exemption under the laws of the receiving State “from all customs duties, taxes,
and related charges with respect to articles for official use of the mission and for
the personal use of the diplomatic agent or members of his family forming part
of the household, except charges for storage cartage and similar services (DC
36).

17
Q. When do diplomatic privileges and immunities commence?
A. A person entitled to privileges and immunities shall commence to enjoy them “from the
moment he enters the territory of the receiving State… to take up his post.” If already in
such territory he shall enjoy them “from the moment when his appointment is notified
to the Ministry of Foreign Affairs,” or any other ministry as may be agreed 9DC 39.1).

Q. When do diplomatic privileges and immunities come to an end?

A. They come to an end when a person enjoying them leaves the receiving State, or upon
the expiration “of a reasonable period in which to do so” (DC 39.2). This means that the
privileges and immunities shall continue to subsist until such time, “even in case of
armed conflict” (DC 39.2).

Q. When does the function of a diplomatic agent cease?

A. It comes to an end, among other circumstances,

1. on notification by the sending State to the receiving State that, his function
ended (DC 43, 10.1(a)) ; or

2. on notification by the receiving State to the sending State that, following his
being declared persona non grata, it refuses to recognize him as a member of
the mission (DC 43).

The following cases may be added as causes of termination of diplomatic function:

3. death of the diplomatic agent (ILC Yearbook, vol. I p. 181, 1958); and

4. severance of diplomatic relations, resulting in permanent or temporary recall

of the mission (DC 45). (The mission or some of its members, may be
withdrawn even as the two States remain in diplomatic relations, in case, for
example, of armed conflict.)

Q. May a member of the diplomatic mission be a national of a receiving State?

A. Yes. This is implied in the rule stated in paragraph 1, article 8 of the Diplomatic
Convention which reads: “members of the diplomatic staffs of the mission should in
principle be of a nationality of a sending State.” Paragraph 2 of this article is explicit that
nationals of the receiving State may be appointed as members of the diplomatic staff of
the mission “with the consent of that State”, i.e., the receiving State.

18
 Customary international law allows such an appointment. However, the national law of
the receiving State may prohibit its nationals to accept appointment as diplomatic agent
of another State.

Q. How does the nationality law of the receiving State affect the members of the
diplomatic mission?
A. Members of the diplomatic mission and members of their families forming part of their
household, who are not nationals of the receiving State, do not require the nationality
of that State solely by operation of its law (Optional Protocol to the Diplomatic
Convention Concerning Acquisition of Nationality, Article II).
This means that –
1. a child born of a members of a diplomatic mission regardless of the rank and
are not nationals of the receiving State, does not automatically acquire the
nationality of State by reason of birth within its territory, and

2. a woman member of the mission does not acquire solely by marriage to the
national of the receiving State her husband’s nationality.

This rule, however, acquires binding force only with respect to States which are parties
to the Optional Protocol Concerning Acquisition of Nationality which entered into force
on 24 April 1964. The Philippines ratified the Protocol on 15 November 1965.
That diplomatic agents are not subject to the receiving State’s law on acquisition of
nationality is a matter of customary international law. Although the
ILC draft convention carried this customary rule, it was finally consigned to a provision
in the Optional Protocol, as pointed out above, on account of the apprehension that its
application, if a made part of the Diplomatic Convention, may come into conflict with
the national law of some State Parties to the said Convention.

Q. If members of the diplomatic mission are nationals or permanent residence of the

receiving State, are they entitled to privileges and immunities of the same nature and
scope as pertaining to those of the sending State?
A. No. They shall enjoy immunity from jurisdiction and inviolability, “only in the respect of
acts performed in the exercise of … [their] functions”, i.e., official functions (DC 38.1).
Other privileges and immunities shall be left to how the receiving State may provide.

19
CONSULAR LAW

Q. How do states establish consular relations?

A. Consular relations are established by mutual consent (cc 2.1). This is customary
international law and the ILC notes that it is “a fundamental rule of consular law”.

The ILC observes that the expression “consular relations” means –

The relations which come into existence between two States by

reason of the fact that consular functions are exercised by
authorities of one State in the territory of the other. . . . The
establishment of these relations presupposes agreement between
the States in question, and such relations are governed by
international law, conventional or customary. In addition, the
legal position of consuls is governed by international law, so that
by reason of this fact also a legal relationship arises between the
sending State and the receiving State (ILC Yearbook, 1961, vol. II,
p. 94).

Q. How are consular relations thus established connected to the establishment of

diplomatic relations?
A. The rule in paragraph 2, Article 2 of the Consular Convention reads: “The consent given
to the establishment of diplomatic relations between two States implies, unless
otherwise stated consent to the establishment of consular relations.”

This rule provides room for States to exclude consular relations intentionally when they
establish diplomatic relations. It may happen on the other hand , that consular relations
may be established ahead of or as a preliminary step to diplomatic relations.

As a consequence of the rule quoted above, “if one of the States between which
diplomatic relations exist decide to establish a consular … [post] in the territory of the
other State, the former State has no need to conclude an agreement for the
establishment of consular relations, provided in article 2, paragraph 1 [of the Consular
Convention], but solely an agreement respecting the establishment of the consular …
[post] as provided in paragraph 1, Article 4 which states: “A consular post may be
established in the territory of the receiving State only with that State’s consent” (ILC
Yearbook, 1961, vol. II, p. 94)

Hence, note the distinction between “establishment of consular relations” and

“establishment of consular post.”

20
Q. Does this mean that consular relations may be undertaken by the diplomatic post?
A. Yes. Consular relations may be conducted by the diplomatic mission, not necessarily by
the consular post. The rule is set out in article 3 of the Consular Convention: “Consular
functions are exercised by consular posts. They are also exercised by diplomatic
missions …”

The following ILC commentary is instructive: “If the sending State has no consulates in
the receiving State the competence of the diplomatic mission in consular affairs covers
automatically the entire territory of the receiving State. If the sending State has
consulates in the territory in question, the exercise of consular functions by the
diplomatic mission is limited as a general rule to that part of the territory of the
receiving State which is outside the consular district or districts allotted to the
consulates of the sending State … But even in such cases the sending State may reserve
certain consular activities to its diplomatic mission …[such as] the issue of visas on
diplomatic passports….” (ILC Yearbook, 1961, vol. II, p. 94).

Q. What is a consular post? How is it to be related to a consular district?

A. It means a consulate-general, consulate, vice-consulate, or consular agency. It exercises
consular functions (cc 1.1 (a) and 3).

A consular district is a geographic area assigned or defined by the sending State for the
exercise of consular functions to its consular post, with approval of the receiving State
(cc 1.1 (b) and 4.2). It sets the territorial limits for the exercise of consular functions, in
agreement with the receiving State. It is only in special circumstances and with the
consent of the receiving State that a consular officer may exercise functions outside his
consular district (cc 6).

Q. How many consular posts may the sending State establish in the territory of the
receiving State?
A. Such number as may be permitted by the receiving State. The Consular Convention
provides: “A consular post may be established in the territory of the receiving State only
with that State’s consent” (cc 4.1).

The following are subject to the approval of the receiving State: the seat of the consular
post, its subsequent changes, and classification; the consular district; and the opening of
a vice-consulate or consular agency in a locality other than in which it is situated, or any
office forming part of the existing consular post outside of its seat (cc 4.2-4.5).

Q. Does severance of diplomatic relations necessarily involve severance of consular

relations?
21
A. No. The Consular Convention states: “The severance of diplomatic relations shall not
ipso facto involve the severance of consular relations” (cc 2.3). this rule is customary
international law.

Q. What are the categories of consular officers?

A. Consular officers are persons, including the head of a consular post, entrusted in that
capacity with the exercise of consular functions (cc 1 (d)). There are two categories of
consular officers, namely, (1) career consular officers, and (2) honorary consular officers
(cc 1.2).

Q. What are considered as consular functions?

A. Consular functions include the following:

(1) protecting the interests of the sending State in the territory of the receiving
State;

(2) protecting and assisting the nationals of the sending State;

(3) furthering the development of commercial, economic, cultural and scientific

relations between the sending State and the receiving State and promoting
friendly relations between them;

(4) ascertaining by all lawful means the conditions and developments in the
commercial, economic, cultural and scientific life of the receiving State, reporting
thereon to the government of the sending State, and giving information to
persons interested;

(5) issuing passports and travel documents to nationals of the sending State and
visas and travel documents to persons wishing to travel to the sending State;

(6) acting as notary, civil registrar and similar administrative capacities; and

(7) exercising rights of supervision and inspection pertaining to the sending State as
flag state and state of registry of aircraft (cc5).

Q. May the consul or consular post represent a national of the sending State before the
tribunal and other authorities of the receiving State?
A. Yes, under certain conditions. The Consular Convention provides that this is permissible
“for the purpose of obtaining … provisional measures for the preservation of the rights
and interest of the national in question, where, because of absence or any other reason,
… [he] is unable at the proper time to assume the defense of … [his] rights and
22
 interests.” Moreover, this right of representation must be exercised in accordance with
the laws and regulations of the receiving State” (cc 5(i)). The ILC observes: “In no case,
however, does this provision empower the consul to dispose of the rights of the person
he is representing. Furthermore, the consul’s right of representation is limited in time;
it ceases as soon as the person concerned himself assumes the defense of his rights or
appoints an attorney (ILC Yearbook, 1961, vol. II, p. 97).

Representation by the consular post is an essential feature of the consular function to

protect the interests of the sending State and of its nationals (cc 5(a)). The ILC considers
this right “absolutely essential” to the exercise of consul functions. Further it says: “The
consul could not carry out these functions without the power of inquiring into the affairs
of absent nationals of the sending State from courts and administrative authorities,
transmitting to courts and other competent authorities information and proposals
which may help to safeguard the rights of nationals of the sending State, drawing the
attention of the courts to the provisions of international treaties which may be
applicable to the particular case, and arranging for the representation of absent
nationals before the courts and other competent instances until the persons concerned
can themselves assume the defense of their rights and interests” (ILC Yearbook, 1961,
vol. II, p. 97).

This right should be correlated with consular rights under Article 36 of the Consular
Convention, as dealt with below in 3.65.

Q. What rights may be availed of in case a national of the sending State is under arrest or
in prison, custody or detention in the receiving State?
A. (1) The consular officer has the right to communicate and to have the sae, access to the
national in question (cc36.1 (a)).

This is complemented by the right of such national to “have the same freedom with
respect to communication and access to consular officers of the sending State” (cc
36.1(a)).

(2) There arise the duty on the part of the receiving State upon the request of a national
in question, to inform the consular post of the sending State “if, within its consular
district, a national of that State is arrested or committed to prison or to custody pending
trial or is detained in any other manner” (cc 36.1(b)).

The receiving State has also the duty to forward without delay to the consular post
communication addressed to it by the national in question.

On the part of the national in question, he has the right –

23
 (a) to have his request complied with by the receiving State to so inform the
consular post of his condition(cc 36.1(b)); and

(b) to have his communication addressed to the consular post forwarded by the
receiving State accordingly (cc 36.1(b)); and

(c) to be informed by the competent authorities of the receiving State “without

delay his rights under this sub-paragraph”, i.e., paragraph 1(b), Article 36 of the
Consular Convention.

On the part of the consular post, it has the right:

(a) to be informed by the receiving State without delay, of the condition of the
national in question as to his arrest, imprisonment, custody or detention,
pursuant to his request addressed to the authorities of the receiving State;

(b) to have the communication addressed to it by the national arrested, imprisoned

or detained forwarded without delay by the authorities of the receiving State (cc
36.1(c)); and

(c) to visit the national in question as well as “to converse and correspond with him
and arrange for his legal representation” (cc 36.1 (c)).

These rights are subject to the condition that they “shall be in conformity with the laws
and regulations of the receiving State.” However, the application of such laws and
regulations may be challenged in that they are unable to give “full effect … to the
purposes for which the rights … are intended” (cc 36.2). This means that such laws
cannot have the effect of nullifying these rights.

Q. Has the International Court of Justice (ICJ) made a pronouncement with respect to the
rights provided in Article 36 of the Consular Convention discussed in 3.65 above?
A. Yes. In the LaGrand Case (Germany v. united States), the ICJ explains that –

Article 36, paragraph 1, establishes an interrelated regime designed to facilitate

the implementation of the system of consular protection. It begins with the
basic principle governing consular protection: the right of communication and
access (Art. 36, para. 1 (a)). This clause is followed by the provision which spells
out the modalities of consular notification (Art. 36, para 1(b)). Finally, Article 26,
24
 paragraph 1(c), sets out the measures consular officers may take in rendering
consular assistance to their nationals in the custody of the receiving State. It
follows that when the sending State is unaware of the detention of its nationals
due to provide the requisite consular notification without delay, which was true
in the present case during the period between 1982 to 1992, the sending State
has been prevented for all practical purposes from exercising its rights under
Article 36, paragraph 1. It is immaterial for purposes of the present case
whether the LaGrands would have sought consular assistance from Germany,
whether Germany would have rendered such assistance, or whether a different
verdict would have been rendered. It is sufficient that the Convention conferred
these rights, and that Germany and the LaGrands were in effect prevented by
the breach of the United States from exercising them, had they so chosen (Para.
74).
In response to the contention that “rights of consular notification and access under the
Vienna Convention are rights of States, and not of individuals, even though these rights
may benefit individuals by permitting States to offer them consular assistance,” the ICJ
takes the view that-
. . . Article 36, paragraph 1(b), spells out the obligations the receiving State has
towards the detained person and the sending State. It provides that, at the
request of the individual’s detention “without delay.” It provides further that
any communication by the detained person addressed to the receiving State
“without delay.” Significantly, this subparagraph ends with the following
language: “The said authorities shall inform the person concerned without delay
of his rights under this subparagraph” (Emphasis added). Moreover, under
Article 36, paragraph 1 (c), the sending State’s right to provide consular
assistance to the detained person may not be exercised “if he expressly opposes
such action.” The clarity of these provisions, viewed in their context, admits of
no doubt. It follows, as has been held on a number of occasions, that the court
must apply these as they stand . . . Based on the text text of these provisions,
the Court concludes that Article 36, paragraph 1, creates individual rights, which
by virtue of Article 1 of the Optional Protocol, may be invoked in this Court by
the national State of the detained person (para. 77).

The ICJ goes on to interpret Article 36, paragraph 2 of the Consular Convention. This
provision reads:
The rights referred to in paragraph 2 of this article shall be exercised in
conformity with the laws of the receiving State, subject to the proviso, however,
25
 that the said laws and regulations must enable full effect to be given to the
purposes for which the rights accorded under this article are intended.
Applying this provision, the ICJ declares that if-
. . . cannot accept the argument of the United States which proceeds, in part, on
the assumption that paragraph 2 of Article 36 applies only to the rights of the
sending States and not also to those of the detained individual. The court has
already determined that Article 36, paragraph 1, creates individual rights for the
detained person in addition to the rights accorded the sending States, and that
consequently the reference to “rights” in paragraph 2 must be read as applying
not only to the rights of the sending States, but also to the rights of the
detained individual . . . (para. 89).

Q. What are the classes of heads of consular posts?

A. These are: (1) consular-general, (2) consuls, (3) vice-consuls, and (4) consular agents (CC
9.1)

Q. How is the head of consular post appointed and admitted to the exercise of consular
functions?
A. He is appointed by the sending State and admitted to the exercise of consular functions
by the receiving State (CC 10.1)

The appointment is evidenced by a consular commission which certifies to his official

capacity and indicates his full name, category or class, the consular district and the seat
of his consular post (CC 11.1). The commission is then transmitted to the receiving State
(CC 11.2). It may be agreed that instead of a commission a notification containing the
same details may be issued (CC 11.3).

Q. What is an exequatur?
A. Exequatur is an authorization from receiving State by which the head of a consular post
is admitted to the exercise of consular functions (CC 12.1).

He is not allowed to enter upon his consular functions until he has received an
exequatur (CC 12.3), except in the following instances;

(1) he may be admitted to exercise consular functions on a provisional basis,

pending delivery of the exequatur (CC 13); and

26
 (2) an acting head of the consular post may act provisionally as head of the post
without the exequatur , if the latter is unable to carry out his functions or in case
of vacancy in the position of head of the consular post (CC 15.1).

The exequatur refers to the act of the receiving State as well as to the document
conferring the right right to exercise consular functions.

The ILC observes that exequaturs may be granted in the following forms:

(a) a decree by the head of State, signed by him and countersigned by the minister
for foreign affairs, the original being issued to the head of consular post;

(b) a decree signed as above, but only a copy of which, certified by the minister for
foreign affairs, is issued to the head of consular post;

(c) a transcription endorsed on the consular commission, a method which may have
several variants; and

(d) a notification to the sending State through the diplomatic channel (ILC Yearbook,
1964, vol. II, p. 101).

The ILC also notes: “The grant of the exequatur to a consul as head of a consular post
covers ipso jure the members of the consular staff working under his orders and
responsibility. It is therefore no necessary for the consular officials who are not heads of
post to present consular commissions and obtain an exequatur” (ILC Yearbook, 1961,
vol. II, p. 101). However, the Consular Convention provides; “The receiving State may, if
required by its laws and regulations, grant an exequatur to a consular officer other than
the head of a consular post” (CC 19.4)

Under the same condition, the sending State may make a request to the same effect (CC
19.3).

Q. May a State refuse to grant an exequatur?

A. Yes. As the ILC observes, it is “universally recognized that the receiving State may refuse
the exequatur to a consul” (ILC Yearbook, 1961, vol. II, p. 101)

Paragraph 2, Article 12 of the Consular Convention provides: ‘A State which refuses an

exequatur is not an obliged to give to the sending State reasons for such refusal.”
Q. Upon admitting the head of a consular post to his functions, what obligations attach
to the receiving State?
A. Under Article 14 of the Consular convention, the receiving State must-
27
 (1) immediately notify the competent authorities of the consular district that the
head of the consular post is admitted to the exercise of his functions; and

(2) ensure that necessary measures are taken to enable the head of consular post to
carry out the duties of his office and to enjoy the benefits of the provisions of
the Consular Convention.

Q. May an acting head exercise the functions of the head of a consular post?
A. Yes, in cases provided in paragraph 1, Article 15 of the Consular Convention, thus: “If the
head of a consular post is unable to carry out his functions or the position of head of
consular post is vacant, an acting head of post may act provisionally as head of the
consular post.”

The following comments of the ILC are relevant:

[1] The function of acting head of post in the consular service corresponds to
that of chargé d’affaires ad interim in the diplomatic service.

[2]. . . The text leaves States quite free to decide the method of designating the
acting head of post, who may be chosen from among the officials of the
particular consulate or of another consulate of the sending State, or from among
the officials of a diplomatic mission of that State. Where no consular official is
available to take charge, one of the consular employees may be chosen as acting
head of post . . .

[3] The word “provisionally” emphasizes that the function of acting head of post
may not, except by agreement between the States concerned, be prolonged for
so long a period that the acting head would in fact become permanent head (ILC
Yearbook, 1961, vol. II, p. 103).

Q. If a member of the diplomatic staff is designated as acting head of the consular post,
does he continue to enjoy diplomatic privileges and immunities?
A. Yes, if the receiving State does not object (CC 15.4). The designation does not affect his
diplomatic status.

Q. May a consular officer perform diplomatic functions or acts?

A. Yes, “where the sending State has no diplomatic mission and is not represented by a
diplomatic mission of a third State,” and provided it is with the consent of the receiving
State. (CC 16.3).

28
 The performance of diplomatic acts does not affect the legal status of the consular
officer and does not confer upon him any right to diplomatic privileges and immunities ( CC
17.1).

See 3.05 and 3.06 above.

Q. May two more States appoint the same person as a consular officer in the receiving
State?
A. Ye. It is required, however, that this be with of two or more States at the same time.
There are two or more sending States, but only one receiving State.

Q. Between heads of consular posts, how is precedence determined?

A. Under paragraph 1, Article 16 of the Consular Convention, They shall be ranked in each
class “according to the date of the grant of the exequatur.” If they have obtained their
exequatur on the same date, precedence shall be by the dates their consular
commissions or notifications issued by the sending State were presented to the receiving
State
(CC 16.3).

Career consuls have precedence over honorary consuls. Honorary consular officers who
are heads of consular posts shall rank in each class after career heads of consular posts,
in the same order and according to the rules set out above (CC 16.5).

Q. How is the size of the consular staff determined?

A. This may be done by express agreement between the receiving State and the sending
State. Without that agreement, “the receiving State may require that the size of the
staff be kept within limits considered by it to be reasonable and normal, having regard to
circumstances and conditions in the consular district and to the need of the particular
[consular] post” (CC 20).

Q. May a person who is a national of the receiving State be appointed as consular officer
of the sending State?
A. This may be done only with the express consent of the receiving State, which may be
withdrawn anytime (CC 22.2).

Although, in principle, consular officers should have the nationality of the sending State,
the Consular Convention expressly allows otherwise, including the appointment as
consular officer of nationals of a third State who are not nationals of the sending State
(CC 22.1-22.3).

29
Q. May the receiving State declare a consular officer persona non grata or not
acceptable?
A. Yes. To this effect, the receiving State may notify the sending State at any time (CC 23.1).

This may be done before the consular officer in question arrives in the territory of the
receiving State, or, if already in the receiving State, before he enters on his duties with
the consular post (CC 23.3).

Q. In this case, what must the receiving State do as a matter of obligation?

A. The sending State has the obligation to “either recall the person concerned or terminate
his functions with the consular post” (CC 23.1)

If it fails to make good this obligation, “the receiving state, as the case may be, may
either withdraw the exequatur from the person concerned or cease to consider him as a
member of the consular staff” (CC 23.2)

Q. Does the receiving State have the duty to give reason for or explain its decision
declaring a consular officer persona non grata?
A. No. Paragraph 4, Article 23 of the Consular Convention provides that “the receiving
State is not obliged to give to the sending State reasons for its decision.”

Q. Are consular officers allowed to carry on for personal profit professional or

commercial activity in the receiving State?
A. Career consular officers shall not carry on such activity (CC 57.1). However, honorary
consular officers may be allowed by some sending States to engage in professional or
commercial activity (CC 65).

Q. When do the function of a member of a consular post come to an end?

A. They come to an end when:

(1) the receiving State notifies the sending State that his functions have come to an
end;

(2) the receiving State notifies the sending State that the former has ceased to
consider him as a member of the consular staff; and

(3) the exequatur is withdrawn (CC 25)

This causes of terminating consular functions as set out in Article 25 of the Consular
Convention are not exhaustive. The following events may be added: death of the
30
member of the consular post, severance of the consular relations, and closure of the
consulate.

Q. Is the use of national flag a matter of right on the part of the sending State?
A. Yes. However, note that, as provided in Article 29(3) of the consular convention, “in the
exercise of the right . . . regard shall be had to the laws, regulations and usages of the
receiving State.”

The national flag may be flown and the coat-of-arms displayed by the sending State on
the building occupied by the consular post and at the entrance door thereof, on the
residence of the head of the consular post and on his means of transport when on
official business (CC 29.2).

Q. What is the scope of the inviolability of consular premises?

A. As circumscribed by the Article 31 of the Consular Convention, consular premises are
inviolable in that-

(1) authorities of the receiving State shall not enter that part of the consular
premises exclusively used for consular work, except with the consent of the head
of the consular post, his designee, or the head of the diplomatic mission; but
consent of the consular head “may be assumed in case of fire or other disaster
requiring prompt protective action” (CC 31.2);

(2) the receiving State has the special duty to take all appropriate steps to protect
the consular premises against intrusion or damage and to prevent any disturbance of
peace of the consular post or impairment of its dignity. But this duty is subject
to item (1) above (CC 31.3)

(3) consular premises, their furnishings, the property of the consular post and its
means of transport shall be immune from any form of requisition “ for purposes
of national defense of public utility” (CC 31.4);

(4) in case the consular premises, their furnishings, the property of the consular post
and its means of transport are expropriated for national defense or public utility,
“all possible steps shall be taken to avoid impeding the performance or consular
functions, and prompt, adequate and effective compensasion shal be paid to the
sending State” (CC 31.4).

Q. What does the term “consular premises mean”?

A. it means “the buildings or parts of buildings and the land ancillary thereto, irrespective
of ownership, used exclusively for the purposes of the consular post” (CC 1(j)).
31
Q. How is the inviolability of consular archives and documents defined?
A. Inviolability in unconditional. They shall be “inviolable at all times and wherever they
may be” (CC 33).

This inviolability includes the consular archives and documents of a consular post are
exempt from “all national, regional or municipal dues and taxes whatsoever” ( CC 32).

This exemption extends to consular premises of a consular post headed by an honorary

consular officer (CC 60.1).

Q. Are members of the consular post entitled to freedom of movement and travel?
A. Yes. It is the duty of the receiving state to “ensure freedom of movement and travel in
its territory to all members of the consular post.” However this freedom is limited by the
laws and regulations of the receiving State with respect to “zones entry into which is
prohibited or regulated for reasons of national security” (CC 34).

This privilege extends to a consular post headed by an honorary consular officer (58.1)

Q. how does the Consular convention provide for the freedom of information on the part
of the consular post?
A. It provides principally that-

(1) the receiving State shall permit and protect freedom of information on the part
of the consular post for all official purpose” (CC 35.1);

(2) in communicating with the Government, the diplomatic missions and other
consular post, . . . of the sending State, the consular post may employ all
appropriate means, including diplomatic or consular couriers, diplomatic or
consular bags and messages in code or cipher” (CC 35.1);

(3) the official correspondence of the consular post shall be inviolable” (CC 35.2); and

(4) the consular bag shall neither be opened nor detained (CC 35.3).

Q. is the consular post allowed to install and use a wireless transmitter?

A. Yes, but only with the consent of the receiving State (CC 35.1).

Q. May the receiving State request that the consular bag be opened?
32
A. Yes, of its authorities have serious reason to believe that the bag contains something
other than the correspondence, documents or articles “intended exclusively for official
use” (CC 35.3 and 35.4).

If this request is accepted, the bag may be opened in the presence of the authorized
representative of the sending State (CC 35.3).

If the request is refused, “the bag shall be returned to its place of origin” (CC 35.3).

Q. Does the consular courier enjoy immunity?

A. Yes, he enjoys personal inviolability and he shall not be liable “to any form of arrest or
detention” (CC 35.7)

Q. If the consular bag is entrusted to the captain of a ship or of a commercial aircraft,

shall he be considered a consular courier?
A. The consular Convention is explicit that he shall not be considered a consular courier ( CC
35.7)

Q. In the exercise of their functions, how may the consular officers address
communication with the authorities of the receiving State?
A. They may address the competent local authorities of their consular district.
However, the Consular Convention provides that they may address the competent
central authorities of the receiving State, “if and to the extent that this is allowed by the
laws, regulations and usages of the receiving State or by the relevant international
agreements” (CC 38).

Q. In the territory of the receiving State, may the consular post collect fees and charges
as provided by the laws of the sending State? Are these fees and charges subject to tax
by the receiving State?
A. Yes, and the proceeds of such collection are exempt from all dues and taxes in the
receiving State (CC 39).

This privilege extends to a consular post headed by an honorary consular officer ( CC

58.1).

Q. What is the scope of personal inviolability of consular officers?

A. 1. They are not liable to arrest or detention pending trial, except in case of a grave
crime and pursuant to a decision of a competent judicial authority (CC 41.1).

33
 2. They shall not be committed to prison nor be subject to any other form of
restriction to personal freedom, except in the case of grave crime and pursuant to a
decision of competent judicial authority, or in the execution of a final judicial decision
(CC 41.1, 41.2).

Q. Are consular officers and employees entitled to immunity from the jurisdiction of
administrative and judicial authorities in the receiving State?
A. Yes. But this immunity does not apply to a civil action either-

(1) arising out of a contract by a consular officer or employee, which he did not
conclude expressly or impliedly as an agent of the sending State; or

(2) by a third party for damage arising from an accident caused by vehicle, vessel or
aircraft in the receiving State (CC 43.2).

The ILC has the following commentary:

The rule that, in respect of acts performed by them in the exercise of their
functions (official acts) members of the consulate are amendable to the
jurisdiction of the judicial and administrative authorities of the receiving Sate, is
part of customary international law. This exemption represents an immunity
which the sending State is recognized as possessing in respect of acts which are
those of a sovereign State. By their very nature such acts are outside the
jurisdiction of the receiving State, whether civil, criminal or administrative. Since
official acts are outside the jurisdiction of the receiving State, no criminal
proceedings may be instituted in respect of them. Consequently, consular
officials enjoy complete inviolability in respect of their official acts (ILC yearbook,
1961, vol. II p. 117).

Acts excluded from immunity are private acts of the members of the consular post. The
ILC observes:

Unlike members of the diplomatic staff, all the members of the consular are in
principle subject to the jurisdiction of the receiving State, unless exempted by . .
. the present rules or by a provision of some other applicable international
agreement. In particular, they are, like any private person, subject to the
jurisdiction of the receiving State in respect of all their private acts (ILC Yearbook,
1961, vol. II, p.117).

Q. May a member of a consular post be a witness in a judicial or administrative

proceedings?
34
A. Yes. However, a consular officer who decline to do so may not be subject to coercive
measure or penalty (CC 44.1).

Q. Are there matters excluded from this obligation to give evidence?

A. Yes. A member of a consular post is not obligated to give evidence concerning matters
connected with consular functions and thus he may not be required to produce official
correspondence and documents related to his official functions (CC 44.3). He may decline
to give evidence as expert witness on the law of the sending State (CC 44.3).

This privilege extends to honorary consular officer (CC 58.2).

Q. What fundamental rules are recognized by the Consular Convention in the taking of
testimony of a consular officer?
A. Under paragraph 2, Article 44 of the Consular Convention, These are:

(1) the authority of the receiving State requiring the evidence shall avoid
interference with the performance of his official duties;

(2) such authority shall, when possible, arrange for the taking of testimony at his
residence or at the consular post, or accept a written statement from him (See
ILC commentaries in ILC Yearbook 1961, vol. II, p. 118).

Q. May personal inviolability, immunity from jurisdiction, and the privilege not be a
witness, be waived?
A. Yes, these may be waived but not only by the sending State “with regard to a member
of the consular post” (CC 45.1), including an honorary consular officer (CC 58.2).

The ILC is of the view that the “capacity to waive immunity is vested exclusively in the
sending State.” The consular officer himself does not have that capacity (ILC Yearbook
1964, vol. II, p. 118).

Q. What are the requisites of a waiver?

A. In all cases, it must be express and shall be communicated to the receiving State ( CC
45.2).

An exception to the “express” rule above lies in the case of a consular officer or
employee who initiates a proceeding in a matter where he might enjoy immunity from
jurisdiction with respect to any counter-claim directly connected with the principal claim
(see Article 45.2 of the Consular convention).
35
Q. are members of the consular post entitled to exemption from certain requirements
under the law of the receiving State?
A. Yes. They are entitled to exemption from the following requirements:

1. registration of aliens and residence permits (CC 46.1);

2. work permits for employment of foreign labor, with respect to services rendered
by them for the sending State (CC 47.1)

3. social security provisions, with respect to services rendered by them for the
sending State (CC 48.1);

4. all dues and taxes, “personal or real, national, regional or municipal” (CC 49.1)

5. customs duties and inspection, “in accordance with such laws and regulations as
. . . [the receiving State] may adopt” (CC 50.1); and

6. all personal services, public services of any kind, and military obligations such as
those connected with “requisitioning, military contributions and billeting” (CC
52).

Q. Are there charges and taxes which are excluded from the exemption mentioned in
item 4 of 3.104 above?
A. Yes. The following taxes and dues are excluded from exemption:

1. indirect taxes normally incorporated in the price;

2. taxes or dues on private immovable property in the territory of the receiving

state;

3. estate, succession income or inheritance taxes and duties on transfers;

4. taxes on private income, including capital grains, and investment income, and
sourced from the receiving State;

5. charges on specific services rendered; and

36
 6. registration, court or record fees, mortgage dues, and stamp duties in private
transactions. (CC 49.1).

Q. Who are not entitled to exemption listed in 3.104 above?

A. They are:

1. consular employees and members of the service staff who carry on private
gainful occupation in the receiving State (57.2(a));

2. members of the family of the said employees and staff members (57.2(b));

3. members of the family of consular post members who themselves carry on

private gainful occupation in the receiving State (CC 57.2(c));

4. members of the family of honorary consular officers (CC 58.3); and

5. members of the family of consular employees in consular posts headed by

honorary consular officers (CC 58.3).

Q. What privileges and immunities are accorded consular posts headed by an honorary
consular officer and the honorary consular officers themselves?
A. (1) As to consular posts headed by honorary consular officers, the following shall apply:

(a) full facilities to be accorded by the receiving State for the performance of
functions of the consular post (cc 28,58.1);

(b) the right to use the sending state’s national flag and its coats-of-arms

(c) freedom of movement and travel to all members of the consular post in the
territory of the receiving State, subject to the latter’s laws (cc 34, 58.1);

(d) freedom of communication for all official purposes, including the use of
diplomatic or consular couriers, diplomatic or consular bags, messages in cipher
or code, and, with the consent of the receiving State, use of wireless transmitter
(cc 35.1, 35.2, 58.1)

(e) inviolability of official correspondence (cc 35.3, 58.1);

(f) right to communicate with the nationals of the receiving State and the right of
such nationals to be informed of this right (cc 36.1, 58.1);
37
(g) protection of the consular post against intrusion or damage and from
disturbance of the peace or impairment of its dignity (cc 59, 58.1);

(h) exemption of consular premises from all national, regional or municipal dues
and taxes whatsoever, other than those representing payment for specific
services rendered (cc 60.1, 58.1);

(i) inviolability of consular archives and documents (cc 61, 58.1); and

(j) exemption from customs duties and taxes as provided by the laws of the
receiving State, with respect to the following articles on official use: coats-of-
arms, flags, signboards, seals and stamps, books, official printed matter, official
furniture, office equipment and similar articles supplied by or at the instance of
the sending State to the consular posts (cc 62, 58.1)

(2)As to honorary consular officers themselves, the following shall apply:

(a) the obligation of the receiving State to notify the sending State through
diplomatic channel in the event of arrest or detention, pending trial, of the
honorary consular officer (cc 42, 58.2);

(b) immunity from the jurisdiction of judicial or administrative authorities of the

receiving State with respect to acts performed in consular functions (cc 43.1,
58.2);

(c) the right to decline to give evidence in judicial or administrative proceedings

concerning matters connected with official functions or to produce official
correspondence and documents relating thereto, including evidence as expert
witness on the law of the sending State (cc 44.3, 58.2);

(d) if criminal proceedings are instituted, they shall be conducted with respect due
to the honorary consular officer by reason of his position and, if under detention,
the proceedings shall be instituted with the minimum of delay (cc 63, 58.2);

(e) the duty of the receiving State to accord to an honorary consular officer such
protection as may be required by reason of his position (cc 64, 58.2);

(f) exemption from registration of aliens and residence permits, with the exception
of honorary consular officers who carry on professional or commercial activity
for personal profit in the receiving State (cc 65, 68.2);
38
 (g) exemption from all taxes and dues on income from the sending State on account
of his consular functions (cc 66, 58.2); and

(h) exemption from all personal services and public services of any kind whatsoever
as well as from military obligation such as those connected with requisitioning
military contributions and billeting (cc 67, 58.2).

Q. What are the privileges and immunities pertaining to consular officers who are
nationals of or permanent residents in the receiving State?
A. They shall enjoy only immunity from jurisdiction and from personal inviolability in
respect of official acts in the exercise of their functions (cc 71.1).

They are also entitled to decline to give evidence on matters connected with their
functions or to produce official correspondence and documents relating thereto,
including evidence as expert witness on the law of the sending State (cc44.3, 71.1).

Q. When does a member of a consular post begin to enjoy the privileges and immunities
under the Consular Convention?
A. From the moment he enters the territory of the receiving State “on proceeding to take
up his post.”

If he is already in its territory, from the moment he enters on his consular duties (cc
53.1).

Q. When do these privileges and immunities end?

A. They come to an end at the time a member of a consular post leaves the receiving State
or upon the expiration of a reasonable period within which to do so, whichever is the
sooner (cc 53.3).

Q. Does this rule hold true even if his consular functions have ceased before he leaves
the receiving State?
A. Yes. He continues to be accorded privileges and immunities even after his functions
have ceased before his departure from the receiving State (cc 53.3).

Q. Is the duration of his privileges and immunities affected by armed conflict between
the sending State and the receiving State?
A. No. He continues to be entitled to them until he leaves the receiving State or on the
expiry of a reasonable time to do so (cc 53.3).

39
Q. As to his immunity from jurisdiction, what is the rule with respect to his acts already
performed in the course of his consular functions?
A. The Consular Convention provides that “immunity from jurisdiction shall continue to
subsist without limitation of time” (cc 53.4).

Q. What is a special mission?

A. Under the Convention on Special Missions, “special mission” is understood to be “a
temporary mission representing the State, which is sent by one State to another Stae
with the consent of the latter for the purpose of dealing with it on specific questions or
of performing in relation to it a specific task” (csm 1(a)).

Whereas States carry on permanent relations by means of diplomatic missions and

consular posts, occasionally they conduct ad hoc diplomacy through special missions.

Q. How do States decide to send a special mission?

A. Article 2 of the Convention of Special Missions reads: “A State may send a special
mission to another State with the consent of the latter, previously obtained through the
diplomatic or another agreed or mutually acceptable channel.”

Q. What is the function of a special mission?

A. Special missions are of varying functions, depending on what may be determined by the
mutual consent of the sending and receiving State (csm 3).

A special mission is an agency of a State and may be entrusted with the conduct of any
specific official business such as negotiation for trade agreement or participation in a
formal state ceremony.

Q. Is the existence of diplomatic or consular relations a precondition to sending or

receiving a special mission?
A. No. This is not necessary (csm 7).

Q. May more than two States be involved in the sending of special missions?
A. Yes, as in the following instances:

(1) a State desiring to send the same special mission to two or more States (csm 4);

(2) a joint special mission of two States to another State (csm 5); and

(3) two or more States may each send a special mission at the same time to another
State to deal together, as agreed by them, with a question of interest common
to all of them (csm 6).
40
 In all cases, prior consent of the receiving State is required.

Q. How much freedom does the sending State have in determining the size and
composition of the special mission?
A. In principle, the sending State “may freely appoint the members of the special mission
after giving the receiving State all necessary information concerning the size and
composition of the special mission, and in particular the names and designations of the
persons it intends to appoint” (csm 8).

However, certain limits may be exercised by the receiving State.

Q. What are these limits?

A. The receiving State may not:

(1) accept a special mission the size of which it does not consider reasonable under
the circumstances (csm 8);

(2) accept a person as a member of the special mission, without giving reasons (csm
8);

(3) consent to its national to be appointed as a member of the special mission (csm
10.2); or

(4) consent to a national of a third State who is not a national of the sending State
to be appointed as a member of the special mission (csm 10.3).

Q. May diplomatic or consular officers be members of the special mission?

A. Yes. In that case, in addition to the privileges and immunities under the Convention on
Special Missions, they retain their diplomatic or consular privileges and immunities (csm
9.2).

Q. May a national of the receiving State be a member of the special mission? What
about a national of a third State?
A. Yes, with the consent of the receiving State, which may be withdrawn any time (csm
10.2).

A national of a third State who is not also a national of the sending State may be a
member of a special mission (csm 10.3).

Q. When does a special mission commence its functions?

41
A. Its functions commence “ as soon as … [it] enters into official contact with the Ministry
of Foreign Affairs or with such organ of the receiving State as may be agreed” (csm
13.1).

The Convention on Special Missions is explicit that the commencement of such

functions does not depend on “presentation of the mission by the permanent
diplomatic mission of the sending State or upon the submission of letters of credence
or full powers” (csm 13.2).

Q. When do the functions of a special mission come to an end?

A. They come to an end, inter alia, by

1) agreement;

2) completion of the task of the mission;

3) expiration of the duration assigned to the mission;

4) notification of the sending State that it is terminating or recalling the special

mission; and

5) notification of the receiving State that it considers the special mission

terminated (csm 20.1).

Q. Does the severance of diplomatic or consular relations cause the termination of

special missions existing at the time of such severance?
A. By itself, severance of diplomatic or consular relations between the sending and the
receiving States does not have the effect of terminating such special missions (csm
20.2).

Q. What rules apply if a person is declared persona non grata?

A. The following rules apply in case the receiving State declares a representative of the
sending State persona non grata:

(1) the receiving State may do so at any time, even before his arrival in the territory
of the receiving State;

(2) the receiving State does not have the duty to explain its decision;

(3) the sending State shall recall the person concerned or terminate his functions
with the special mission (csm 12.1);
42
 (4) the receiving State may refuse to recognize the person declared non grata as a
member of the special mission if the sending State refuses, or fails within a
reasonable period to comply with its obligation as stated above (csm 12.2).

Q. With which organ of the receiving State shall the special mission conduct its official
business?
A. The special mission shall conduct its business with or through the Ministry of Foreign
Affairs or with organ of the receiving State as may have been agreed (csm 15).

Q. How shall precedence among them be determined when two or more special
messions meet in the territory of the receiving State or of a third State?
A. In the absence of a special agreement, precedence shall be according to the alphabetical
order of the States as used by the protocol of the State in whose territory the special
missions are meeting (csm 16.1).

Q. May special missions from two or more States meet in the territory of a third State?
A. Yes, but only after obtaining the consent of that State, which must be express (csm
18.1).

Q. What other conditions underlie the consent of that third State?

A. The third State retains the right to withdraw its consent (csm 18.1). In giving consent,
the third State may provide conditions which shall be observed by the sending States
(csm 18.2).

The third State shall assume the rights and obligations of a receiving State with respect
to the sending States (csm 18.3).

Q. When the Head of State leads a special mission, what privileges and immunities shall
he/she enjoy?
A. In the receiving State or third State, he/she shall enjoy “the facilities, privileges and
immunities accorded by international law to Heads of State on an official visit” (csm
21.1).

Q. What about in the case of Head of Government and the Minister of Foreign Affairs?
A. In addition to what is granted under the Convention on Special Missions they shall enjoy
“the facilities, privileges and immunities accorded by international law” (csm 21.2).

43
Q. How is personal inviolability defined with respect t the representatives of the sending
State in the special mission?
A. Personal inviolability means that their persons and those of the members of its
diplomatic staff shall not be liable to any form of arrest or detention. It is the duty of
the receiving State to treat them with due respect and it “shall take all appropriate steps
to prevent any attack on their persons, freedom or dignity” (csm 29).

However, inviolability pertains only to official acts performed in the exercise of their
functions, if they are nationals of or permanently residing in the receiving State (csm
40.1).

Q. What is the scope of inviolability with respect to the premises of the special mission?
A. The premises where the special mission is established shall be inviolable. This principle
comprehends the following rules:

1. The agents of the receiving State may not enter the said premises, except with
the consent of the head of the special mission or, where appropriate, of the
head of the diplomatic mission of the sending State accredited by the receiving
State (csm 25.1).

2. Such consent may be assumed to have been given in case of fire or other
disaster that seriously endangers public safety and “only in the event that it has
not been possible to obtain the express consent of the head of the special
mission or where appropriate, of the head of the permanent mission” (csm
25.1).

3. It is the duty of the receiving State “to take all appropriate steps to protect the
premises of the special mission against any intrusion or damage to prevent any
disturbance of the peace or impairment of its dignity (csm 25.2).

4. The premises of the special mission, their furnishings, other property used in the
operation of the special mission and its means of transport shall be immune
from search, requisition, attachment or execution (csm 25.3).

The same inviolability applies to the private accommodation of the representative of

sending States in the special mission (csm 30.1), as well as generally to their papers and
correspondence (csm 30.2).

Q. Are the archives and documents of the special mission covered by the inviolability
rule?
A. Yes. They shell be inviolable “at all times and wherever they may be” (csm 26).
44
Q. What are the principal constituent rules of immunity from jurisdiction on the part of
the representatives of the sending States in the special mission?
A. The rules are as follows:

1. They shall enjoy immunity from the criminal jurisdiction of the receiving State
(csm 31.1).

2. They shall also enjoy immunity from the civil and administrative jurisdiction of
the receiving State, except in the following cases:

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

(b) an action relating to succession in which the person concerned 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

person concerned in the receiving State outside his official functions;

(d) an action for damages arising from an accident caused by a vehicle used
outside the official functions of the person concerned (csm 51.2 9d)).

3. Except in the cases mentioned above, no execution may be taken against them
and provided that the measures of execution concerned can be taken without
infringing the inviolability of their person or their accommodation (csm 31.4).

4. They are not obliged to give evidence as witnesses (csm 31.3).

5. Immunity from jurisdiction of the receiving State does not exempt them from
the jurisdiction of the sending State. (csm 31.5)

Note that if members of the special missions are nationals of, or permanently
residing in the receiving State, immunity from jurisdiction pertains only to
“official acts performed in the exercise of their functions” (csm 40.1).

Q. What exemptions are they entitled to?

A. Generally, they are entitled to the following exemption:
45
 1. They shall be exempt from all national, regional or municipal dues and taxes in
respect to the premises occupied by the special mission (csm 24.11 and 33).

2. They are themselves exempt from all dues and taxes, personal or real, regional
or municipal (csm 33).

3. With respect to services rendered to the sending State, they are exempt from
social security provisions in the receiving State (csm 32.1).

4. They are exempted from all personal services, public service of any kind
whatsoever, and military obligations such as those connected with
requisitioning, military contributions, and billeting (csm 34).

5. They are exempted from all customs duties, taxes, and related charges on
articles for official use of the special mission as well as on articles for the
personal use of the representatives of the sending State in the special mission, as
provided by the laws of the receiving State (csm 35.1).

6. They are exempted from inspection of their personal luggage, unless there are
serious grounds for presuming that it contains articles not covered by exemption
(i.e., not for official use of the mission and not for personal use of such
representatives) or articles prohibited or controlled by the law of the receiving
State (csm 35.2).

Q. What taxes are not covered by exemption from personal taxes?

A. Excluded from exemption are:

(1) indirect taxes that are normally incorporated in the price of goods or services;

(2) dues and taxes on private immovable property located in the receiving state,
unless the person concerned holds it on behalf of the sending State for purposes
of the special mission;

(3) estate or inheritance duties levied by the receiving State, including those on
movable property which is in the receiving State “solely because of the presence
there of the deceased as a member of the special mission or of the family of such
member;”

(4) dues and taxes on private income from a source in the receiving State;
46
 (5) capital taxes on investment in commercial undertaking in the receiving State;

(6) charges levied for the specific services rendered; and

(7) registration, court or record fees, mortgage dues and stamp duty (CSM 33)

Q. Are members of the special mission entitled to freedom of movement in the receiving
State?
A. It is the duty of the receiving State to ensure them such freedom of movement and
travel in its territory “as in necessary for the performance of the functions of the special
mission” (CSM 27).

However, this is subject to the laws of the receiving State concerning zones entry into
which is prohibited or regulated for reasons of national security (CSM 27).

Q. Does the special mission enjoy freedom of communication?

A. Yes. It is the duty of the receiving State to “permit and protect free communication on
the part of the special mission for all official purposes” (CSM 28).

Q. What are the specific rules applicable pursuant to freedom of communication on the
part of the members of the special mission?
A. These are as follows:

1. The special mission is entitled to “employ all appropriate means, including

couriers and message in code or cipher, in communicating with its Government
diplomatic missions, consular posts, or with its other special missions, wherever
situated” (CSM 28).

2. The official correspondence of the special mission shall be inviolable. This applies
to “all correspondence relating to the special mission and its functions (CSM 28.2).

3. The bag of the special mission shall not be opened or detained.

4. The courier of the special mission shall be protected by the receiving State in the
performance of his functions. He shall enjoy personal inviolability and shall not
be liable to any form of arrest or detention (CSM 28.6).

5. The bag of the special mission may be entrusted to the captain of a ship or of a
commercial aircraft scheduled to land at an authorized port of entry, but he shall
not be considered as a courier of the special mission (CSM 28.8).
47
Q. Do the members of the special mission’s administrative and technical staff enjoy the
privileges and immunities?
A. They enjoy personal inviolability, inviolability of private communication, immunity from
jurisdiction, exemption from social security provisions, personal exemption from dues
and taxes, and exemption from personal services as set out above, as well as exemption
from customs duties and inspection with respect to “articles imported at the time of
first entry into the territory of the receiving State” (CSM 36).

However, as to immunity from civil and administrative jurisdiction, this shall not extend
to “acts performed outside the course of their duties” (CSM 31.2 and 36).

Q. Do members of the special mission’s service staff enjoy privileges and immunities?
A. They are subject to the following rules:

1. They enjoy the immunity from jurisdiction of the receiving State but only with
respect to acts performed in the course of their official duties. (CSM 37).

2. They are exempt from personal dues and taxes on emoluments received by
reason of their employment (CSM 37).

3. They are also exempt from social security legislation as indicated in 3.137 above
(CSM 37).

Q. Do these privileges and immunities extend to the family members of the

representatives of the sending State in the special mission?
A. They are entitled to the following privileges and immunities as set out above: personal
inviolability, inviolability of private accommodation, immunity from jurisdiction
exemption from social security legislation personal exemption from dues and taxes
exemption from personal services, and exemption from customs duties and inspections
(CSM 39.1 in relation to 29-35).

This is, however, subject to the condition that:

(1) they accompany the members of the special mission; and

(2) they are not nationals of, or permanent residents in, the receiving State ( CSM
39.1).

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Q. May immunity from jurisdiction be waived by the sending State?
A. Yes, and it is required that “Waiver must always be express” (CSM 41.1 and 41.2).

In civil or administration proceedings, waiver of immunity does not include execution of

judgement. Execution requires separate waiver (CSM 41.3).

Q. What is the duration of privileges and immunities pertaining to the members of the
special mission?
A. (1) Every member of the special mission shall enjoy the privileges and immunities he
is entitled to from the moment he enters the territory of the receiving State “for the
purpose of performing his functions in the special mission or, if he is already in its
territory, from the time when his appointment is notified to the Ministry of Foreign
Affairs or such other organ of the receiving State as may be agreed” (CSM 43.1)

When his functions have come to an end, his privileges and immunities shall normally
cease the moment he leaves the territory of the receiving State, or on the expiration of
a reasonable period within which to do so. They shall continue to subsist up to that time
“even in case of armed conflict” (CSM 43.2).

Q. When the functions of the special mission come to an end, what is the consequent
duty of the sending State?
A. It must withdraw the property and archives of the special mission within a reasonable
period of time (CSM 46.1).

Q. And on the part of the receiving State?

A. It must respect and protect the premises of the special mission so long as they are
assigned to it, as well as its property archives (CSM 46.1).

Q. If the functions of the special mission have to come an end following severance of
diplomatic or consular relations, may the sending State entrust the custody of its
property and archives to a third State?
A. Yes, provided that it is entrusted to a third State acceptable to the receiving State (CSM
46.2).

Q. Is this true even in case of armed conflict between the sending and the receiving
State?

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A. Yes. (CSM 46.2). Also note that, in armed conflict or not, the receiving State has the duty
to grant the sending State facilities for removing its archives from the territory of the
receiving State (CSM 345.2).

Q. May members of the special mission practices for personal profit their profession or
engage in commercial activity in the receiving State?
A. no, they are not allowed to do so (CSM 48).

PREVENTION AND PUNISHMENT OF CRIMES AGAINST DIPLOMATIC AGENTS

______________________________________________________________________________

Q. Does International Law provide for the prevention and punishment of crimes against
diplomatic agents?
A. Yes. This is provided in the Convention on the Prevention and Punishment of Crimes
Against Internationally Protected Persons, Including Diplomatic Agents. The United
Nations General Assembly adopted the Convention in Resolution 3166 (XXVII) on the 14
December 1973. It was opened for signature on that date. It entered into force on 20
February 1977.

Q. What crimes are set forth in the Convention?

A. The crimes thus set forth are:

(1) murder, kidnapping or the attack upon the person or liberty of an internationally
protected person, which includes diplomatic agent;

(2) violent attack on the official premises, private accommodation or his means of
transport likely to endanger his person or liberty;

(3) a threat to commit any such attack;

(4) any attempt to commit any such attack; and

(5) an act constituting participation as accomplice in any such attack (CPPC 2).

Q. What are the principal obligations of the States Parties to the Convention in respect of
such crimes?
A. These are:

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 1. primarily the State Party in whose territory the alleged offender is present, has
the obligation to either extradite him or prosecute him (CPPC 7), and

2. each State Party shall provide that they be made a crime under its internal law
punishable by appropriate penalties (CPPC 2.1 and 2.2)

Q. How many a State Party establishment its jurisdiction over such crimes?
A. Under the following circumstances each State Party may take measures to establish its
jurisdiction:

(1) when the crime is committed in its territory or on board a ship or aircraft
registered in that State;

(2) when the alleged offender is its national;

(3) when the crime is committed against an internationally protected person or

diplomatic agent “who enjoys his status as such by virtue of functions which he
exercises on behalf of that State (CPPC 3.1); or

(4) where the alleged offender is present in its territory and it does not extradite
(CPPC 3.2)

Q. How shall State Parties cooperate in the prevention of such crimes?

A. They shall cooperate to this end by-

(1) taking practicable measures to prevent preparations for the commission of such
crimes within or outside their territories; and

(2) exchanging information and coordinating administrative and other measures to

prevent the commission of such crimes (CPPC 4)

Q. What is the duty of a State Party if the alleged offender is present in its territory?
A. It shall take such appropriate measures under its internal law so as to ensure his
presence for the purpose of prosecution or extradiction.

The measures taken shall be communicated directly to the following States or through
the UN Secretary-General:

(1) the State where the crime was committed;

(2) the State of which the alleged offender is a national;

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 (3) the State of which the diplomatic agent concerned is a national or on which he
was exercising his functions;

(4) all other States concerned; and

(5) the international organization of which the internationally protected person or

diplomatic agent is an official agent (CPPC 6.1)

Q. What rules are established in respect to States Parties which are also parties to
existing extradition treaties or may be parties to future extradition treaties?
A. The principal rules are:

1. if the crimes set forth above are not listed in any extradition treaty existing
between them “they shall be deemed to be included as such therein” (CPPC 8.1);

2. in future extradition treaties that they may conclude, they undertake to include
those crimes as extraditable offenses (CPPC 8.1);

3. if the existence of an extradition treaty is required by a State Party as a condition

for extradition, it may consider this Convention “as the legal basis for extradition
in respect of those crimes.” The procedural provisions and other conditions of
law of the requested State are applicable;

4. as to State Parties which do not require such condition, they shall “recognize
those crimes as extraditable offenses between themselves.” The procedural provisions
and other conditions of law of the requesting State are applicable ( CPPC 8.3).

Q. What are the rights of the alleged offender?

A. The alleged offender is entitled to the following rights:

1. he shall be guaranteed fair treatment in all stages of the proceedings in

connection with any of such crimes (CPPC 9);

2. he shall be entitled to communicate without delay with the nearest appropriate

representative of the State of which he is a national or which is entitled to
protect his rights (CPPC 6.2(a)); and

3. he shall be entitled to be visited by a representative of that State (CPPC 6.2(b)).

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