The Concept, Privileges and Immunities of Diplomatic Missions
T.A Olorunnipa*
Abstract
In order to maintain diplomatic relations, international laws give immunities and privileges to diplomatic missions so that the authorities of the receiving state do not impede their work. Various countries have domesticated the international law in this regard. The challenge however is that these immunities and privileges so granted are often abused, hence there is need for the development of both international law and domestic laws to curb the abuses by prescribing stiffer penalties for default.
1. Introduction
It is common knowledge that there is no state that can exist as an island of its own. Thus, it is the practice of nations from ancient times to relate with one another for socio, political, economic, cultural and other reasons. To manage the affairs, policies and divers matters between nations, great diplomacy is involved.[1]The art of diplomacy is the practice and institution by which nations conduct their relations with one another. In other words, it is the official activities of a given state’s organ of external relation in pursuing, through peaceful means, the objectives and tasks of its foreign policies and in protecting its rights and interests as well as those of its citizens abroad. Diplomacy is thus carried out by states through its officials working at home (e.g. heads of states, heads of government, ministries of foreign affairs e.t.c.) or abroad (e.g. trade missions, consular agencies and diplomatic mission).[2] This write-up focuses on the privileges and immunities enjoyed by diplomatic missions, extent of abuses and need for review of same.
2. Defining Diplomatic Mission
Simply put, a diplomatic mission is a state’s organ of external relations located abroad. It has been defined as: [3]
The permanent administrative organ established in a foreign country, on a hierarchical basis, for the purpose of maintaining friendly relations between states and protecting the rights and interests of their country and its nationals.
3. Background History
As stated earlier, diplomatic relations is an ancient phenomenon and consequently, the doctrine or principle of immunities of diplomats. Customary norms and practices governed diplomacy before the end of the World Wars[4] and emphasis was on the ambassador or minister who had under him diplomatic and non-official personnel. After the second world war, and with the signing of the United Nations Charter in 1945, new and radical developments occurred in the field of diplomacy which shifted emphasis to diplomatic mission as an organic whole.[5] The period after the second world war witnessed the codification of customary norms of international law on diplomatic mission to reflect the progressive development of diplomatic and consular law. Hence, the 1961 Vienna Convention on Diplomatic Relations[6] which entered into force on 24th April, 1964 became the law on diplomatic mission while other matters in diplomatic and consular law were governed by other conventions like the 1963 Vienna Convention on Consular Relations which came into force in 1967, the 1969 New York Convention on Special Missions, the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents which came into force in 1977 and the 1975 Vienna Convention on the Representatives of States in their Relations with International Organization of a Universal Character.
The topic at hand will be discussed with reference to the codified law thereon which is the Vienna Convention on Diplomatic Relations 1961(hereafter referred to as VCDR 1961 or Vienna Convention 1961).
4. Establishment of Diplomatic Mission
Though the establishment of diplomatic relations is convenient, no state is obliged to establish relations with another against its will. For diplomatic relations to be perfect and effective, however, there should be an exchange of diplomatic missions by mutual consent and on reciprocal basis. This is recognized by the Vienna Convention 1961, which provides that the establishment of diplomatic relations and permanent diplomatic mission is to take place by mutual consent.[7]
The rule is that states should exchange diplomatic missions of the same rank. This is subject to the exception that one of the states may establish a mission even if aware of the fact that the other will not proceed likewise.
In international law, as soon as a state becomes a person, it begins to enjoy certain essential rights; one of which is the right to establish diplomatic relations and missions, otherwise known as the right to send and receive diplomatic missions.
5. Classes of Diplomatic Mission
There are two classes of diplomatic missions namely: embassies and legations. An embassy is headed by an ambassador. The British Commonwealth of Nations refers to it as High Commission headed by a High Commissioner. The Holy See refers to it as nunciature headed by nuncios or pro-nuncios and in their absence, by charges d’affaires ad interim.[8] On the other hand, a legation is headed by envoys or ministers plenipotentiary or charges d’affaires en peid. Internunciatures which are headed by internuncios are also placed in the same class with legation.[9]
Embassies and legations receive the same treatment in international law and therefore enjoy the same rights, privileges and immunities. The fact that both missions are placed on equal footing in international law notwithstanding, in matters of precedence and etiquette, certain distinctions are made between ambassadors and ministers.[10] Today, legations have almost been abolished as the number of embassies increase.
6. Functions of a diplomatic mission
The establishment of diplomatic mission is aimed at maintaining friendly relations between the sending and the receiving states as well as protecting the interest of the country represented and its nationals. Therefore, a diplomatic mission is saddled with the responsibility of ensuring the achievement of this aim by performing certain functions laid down by the law. The VCDR, 1961[11] highlights the functions of a diplomatic mission thus:
The functions of a diplomatic mission consist inter alia in:
- Representing the sending state in the receiving state;
- Protecting in the receiving state the interest of the sending state and of its nationals, within the limits permitted by international law;
- Negotiating with the Government of the receiving state;
- Ascertaining by all lawful means conditions and developments in the receiving state, and reporting thereon to the Government of the sending state;
- Promoting friendly relations between the sending state and the receiving state and developing their economic, cultural and scientific relations.
However, the functions of a diplomatic mission are not limited to those enumerated above but may include registration of births, deaths or marriages and the issuance of visas. The functions of diplomatic missions also include consular functions.[12]
7. Head of a Diplomatic Mission
The expression, head of diplomatic mission is a contemporary terminology. This applies to ambassadors, high commissioners, ministers, envoys, nuncios, pro-nuncios, internuncios and charges d’affaires. Note that the heads of mission were formerly designated as apocrisarii, resposales, legati, ambaxadeur, ablegatus and bailo. Around the middle of the seventeenth century, heads of mission were classified into:
- Ambassador and legati representing a sovereign state or the Holy See.
- Agents, residents, envoys and the ablegati.
The Vienna Regulation of 1815 which aimed at ending the dispute over precedence classified it as:
- Ambassadors, legates or nuncios
- Envoy or ministers accredited to sovereign and
- Charges d’affaires[13]
However, the VCDR 1961 classified the head of mission as follows:
- Ambassadors or nuncios accredited to heads of state and other heads of mission of equivalent rank;
- Envoys, missions and internuncios accredited to head of state;
- Charges d’affaires accredited to ministers for foreign affairs.[14]
The sending state is obliged by Article 4(1) of the VCDR 1961 to ensure that the agrément (the art of accepting the head of a mission) of the receiving state is given for the person it proposes to accredit as head of the mission. The receiving state may refuse to accept a proposed head of mission and it is not obliged to give reasons therefor.[15]If an agrément is received, the appointment is announced in the press.
At the time of departure from the host state, the appointed head of mission is given a letter of credence addressed to the head of the receiving state and signed by the head of the sending state, stating that the bearer be trusted as the person representing the sending state in all relations with the receiving state. The head of mission is considered to have begun his functions in the receiving state either when he has presented his letter of credence to the Head of the receiving State or when he has given notice of his arrival and presented the certified copies of his letter of credence to the Ministry of Foreign Affairs of the receiving state or such other ministry as may be agreed on, depending on the practice prevailing in the receiving state.[16]
8. Members of Diplomatic Mission
Diplomatic mission, before the Vienna Convention of 1961, consisted of the head of the mission, secretaries and attaches together with a small number of officials assigned to them. After the Second World War, the scope was extended to include official and non-official personnel. The Vienna Convention put to rest the issue of classification and identification of the members of a diplomatic mission and defines it as follows:[17]
The head of the mission and the diplomatic staff, of the administrative and technical staff and of the service staff of the mission.
The Convention also provides for a category known as private servants. These are members of the mission who are in the domestic service of a member of the mission and who are not employees of the sending state.[18]
In principle, members of diplomatic staff of the mission should be nationals of the sending state. However, where a receiving state consents to it, members of diplomatic staff may include persons having the nationality of the receiving state or of a third state but such consent may be withdrawn at anytime.[19] This restriction does not apply to other members of diplomatic mission and private servants.
The Vienna Convention also provides that in the absence of specific agreement in respect of the size of a mission, the receiving state may require it to be kept within the limits it considers to be reasonable and normal, regard being had to the circumstances and conditions in the receiving state and to the need of the particular diplomatic mission. The receiving state may also refuse to accept officials of a particular category.[20]
A receiving state can at anytime declare the head of a mission or a member of the diplomatic staff persona non grata or that any other member of the staff or the mission is unacceptable. This will necessitate the recall of such member of staff of the mission from the receiving state.[21]
9. Immunities and Privileges
As earlier noted, states relate with one another from ancient times. The principle of inviolability of emissaries dates back to the veryorigin of diplomacy as it was understood that no agreement could be reached if the envoys were murdered on arrival or during negotiations.[22] The VCDR 1961 is a result of the long evolution of the theory of immunities and privileges of diplomatic mission, which have developed over the centuries.
Commenting on the draft of the Vienna Convention on Diplomatic Relation 1961, the International Law Commission gave the basis of diplomatic immunities and privileges as:[23]
a. Exterritoriality theory which posits that diplomatic premises are assimilated to the territory of the sending state and is thereby subject to its laws and tribunals. This theory is not favoured in recent times as it is the submission and conclusion of authors and judges that a diplomatic mission does not form part of the territory of the sending state, more so the Convention discarded with it.[24]
b. Representing character which stipulates that the diplomatic mission personifies the sending state.
c. Functional theory which considers that immunities and privileges are necessary for the mission to perform its functions effectively and refuses them where there are no links. This is adopted by the Convention which extensively provides for the inviolability, immunities and exemptions of diplomatic missions and of the diplomatic personnel.
Accordingly, immunities and privileges of diplomatic mission fall into two categories viz:[25]
- Immunities and privileges of the diplomatic mission; and
- Personal immunities and privileges of members of the staff of the mission.
10. Immunities and Privileges of Diplomatic Mission
Immunities and privileges of diplomatic mission come under various headings –
10.1 Inviolability of Premises
Under and by virtue of Article 22(1) of the VCDR 1961, the premises of a diplomatic mission is inviolable and the agents of the receiving state may not enter them except with the consent of the head of mission. It has the special duty to protect the premises against any intrusion or damage and to prevent any disturbance of its peace and dignity;[26] which duty remains unabated even where diplomatic relations have been broken off. This was the decision of the International Court of Justice (ICJ) when the US Embassy in Tehran, Iran was taken over by several hundreds of demonstrators. The court observed thus:[27]
Iran was placed under the most categorical obligations, a receiving state, to take appropriate steps to ensure the protection of the United States Embassy and Consulates, their staffs, their archives, their means of communication and the free movement of the members of their staff.
There are circumstances, however, in which local agent, can enter the premises of the mission without authorization and the consent of the head of the mission would be implied such as when the premises is on fire, in case of earthquake or some other forms of disaster or where there is imminent danger that crime of violence is about to be perpetrated upon the premises.[28]
It is essential to state that the principle of exterritoriality or extra territoriality is not the same with that of immunity from violation. The former regards or postulates that the premises of the diplomatic mission should be treated by the receiving states as if they were located in the territory of the sending state.[29] This exterritoriality theory has been rejected by courts. In Radwan v Radwan,[30] an English court opined that the Egyptian consulate in London was not a part of the Egyptian territory and so a divorce obtained there was not obtained outside Britain.
With regard to the Vienna Convention, the court observed that:[31]
If it was the view of the high contracting parties that the premises of missions were part of the territory of the sending state that would undoubtedly be formulated and it would have been quite unnecessary to set out the immunities in the way in which it has been done.
Hence, the existence of a right of diplomatic asylum within general international law is doubtful. In principle, refugees are bound to be returned to the authority of the receiving state where there is no treaty or customary rules to the contrary. The International Court of Justices in the Asylum case between Columbia and Peru[32](where the Columbia Embassy granted asylum) pointed out that a decision to grant asylum involves a derogation from the sovereignty of the receiving state and constitute an intervention in matters which are exclusively within the competence of that state. Such a derogation from territorial sovereignty cannot be recognized unless its legal basis is established in each particular case. It has however been opined that a right of asylum will arise for urgent and compelling reasons of humanity but the scope and nature of this is unclear.
10.2 Immunity/Exemption from Taxation
Article 23 exempts the sending state and the head of the mission from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased or such dues and taxes payable under the law of the receiving state by persons contracting with the sending state or the head of the mission.
10.3 Inviolability of archives and documents
The receiving state is under a special duty not to violate or censor mail intended for or sent by the mission and to afford it a superior protection to that given to the inhabitant of the country. The archives of the mission are composed of all the documents which are deposited in them, even though they may no longer be in use. The Vienna Convention provides that:[33]
The archives and documents of the mission shall be inviolable at anytime and wherever they may be.
To ensure compliance with the duty at all times, it further provides as follows:[34]
If diplomatic relations are broken off between two states or if a mission is permanently or temporarily recalled:
- The receiving state must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives.
10.4 Diplomatic Communication
The collection and relay of information and the receipt of dispatches from the Ministry of Foreign Affairs as well as from other offices and diplomatic missions of the sending state is one of the most important functions of a diplomatic mission. Article 27 of the VDRC, thus provides for the privilege of communication and immunity from interference to enable the bodies function effectively.
In essence, this provision is to the effect that the receiving state should permit and protect free communication on behalf of the mission for all official purposes. Such official communication is inviolable and may include the use of diplomatic couriers and messages in code and in cipher, although the consent of the receiving state is required for a wireless transmitter.[35]
The law further provides for diplomatic bag. A diplomatic bag is the packages containing official correspondence and documents or articles intended exclusively for official use, whether accompanied by diplomatic courier or not, which are used for the official communication and which bear visible external marks of their character.[36]The provision in this regard is to the effect that diplomatic bag should not be opened or detained and that the packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended “for official use.” A person carrying the immunity bag also enjoys immunity.
Though missions require a confidential means of communication, there is need to guard against abuse. For instance, on 5th July, 1984, a former Nigerian minister and a fugitive in London following the December 1983 coup in Nigeria was kidnapped and placed in a crate to be flown to Nigeria. The crate was opened at Stansted Airport although accompanied by a person claiming diplomatic status. The crate did not contain an official seal and was thus not a diplomatic bag. The United Kingdom foreign minister stated that the crates were opened because of the suspicion of human content; that whether or not the crate constituted a diplomatic bag, the overriding duty to preserve and protect human life motivated its opening.[37]
The reason given for the opening of the crate points to an implied exception to Article 27(3), which is the interest of humanity. It has been suggested that this should be welcomed provided it is applied solely and strictly in these terms.[38]
11. Privileges and Immunities of Members of Diplomatic Mission, their Staff and Family Members
Like the premises of diplomatic mission, members of diplomatic mission and their staff and family members also enjoy immunities and privileges. Such immunities include:
11.1. Personal immunities and privileges of a diplomatic agent and members of his family forming part of his household
11.1.1 Inviolability of Person
The head of the mission or a member of staff having diplomatic rank are the diplomatic agents of a mission.[39] By virtue of Article 37 VCDR 1961, the members of their family forming part of their household, if they are not nationals of the receiving state are entitled to enjoy the same immunities and privileges.[40]The person of a diplomatic agent is inviolable. The receiving state is obliged to afford special protection as regards his safety. It must prevent its agents from exercising measures which might represent direct coercion against a diplomatic agent and must take the necessary steps for the prevention of offences. Article 29 VCDR puts this rule thus:
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.
Where there is an attack on the person of a diplomatic agent, the receiving state is to ensure that the author of the attack is captured, tried and punished otherwise it will incur international responsibility for its omission. In order to ensure this immunity, some states include special article on the subject in their criminal laws for example the laws of the United States.[41] It has been earlier stated that Article 37 confers the immunities and privileges enjoyed by a diplomatic agent on members of his family forming part of his house hold. Therefore, in every way the above discussed immunities and privileges apply to a diplomatic agent, they also apply to members of his family forming part of his household.
11.1.2 Inviolability of Residence
Article 30 gives a diplomatic agent the immunity and privileges of inviolability and protection of his private residence. It further provides for the inviolability of his papers, correspondence and property. The inviolability of his property is subject to certain exceptions as contained in Article 31(3) which provides that execution could be levied against his property where an action is instituted against his private immovable property situated in the territory of the receiving state; where an action relates to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee in the capacity of a private person and where the action relates to any professional or commercial activity of the diplomatic agent in the receiving state outside his official functions.[42]
Diplomatic agents enjoy complete immunity from the legal system of the receiving state.[43] This customary norm of international law on unlimited immunity from criminal jurisdiction is reflected in Article 31(1) of the VCDR 1961. This immunity is, however, not a license to the diplomatic agent to misbehave. Article 41 enjoins him to respect the laws and regulations of the receiving state. If he offends the law, the receiving state can declare him persona non grata under Article 9.
Although he is exempted from the jurisdiction of the receiving state, a diplomatic agent is not immune from the jurisdiction of the sending state.[44] Consequent upon his immunity from local jurisdiction, a diplomatic agent is not obliged to give evidence as a witness either in civil or commercial proceedings.[45]
11.1.4 Waiving of Immunity from Jurisdiction
By virtue of Article 32, a sending state can waive the immunity from jurisdiction of its diplomatic agent. The waiver must be express. If a diplomatic agent initiates a proceeding, such diplomatic agent is precluded from invoking immunity from jurisdiction in respect of counter-claim directly connected with the principal claim.
Also, waiver from jurisdiction does not imply a waiver of immunity from execution of judgment. A separate waiver is required in respect of execution of judgment.[46]Article 38 provides that except where the receiving state grants additional privileges and immunities, a diplomatic agent who is a national of or permanently resident in that state enjoys only immunity from jurisdiction and inviolability in respect of official acts performed in the exercise of his functions.
It is worthy of note that it is the sending state that has right to waive immunity of its diplomatic representative. This was the decision in Fayed v Al-Tajir[47] where it was further stated that the diplomatic representatives themselves cannot waive immunity from jurisdiction.[48]
11.2 Immunity from Taxation
Article 34 exempts a diplomatic agent from all dues and taxes but this exemption does not extend to taxes incorporated in the price of goods, dues and taxes on private immovable property situated in the territory of the receiving state (unless he holds it on behalf of the sending state for the purpose of the mission; estate, succession or inheritance) duties levied by the receiving state; dues and taxes on private income having its source in the receiving state and capital taxes on investments made in commercial undertakings in the receiving state; charges levied for specific services rendered; and/or registration, court, or record fees, mortgage dues and stamp duty with respect to immovable property.
Apart from the foregoing immunities and privileges, a diplomatic agent is, in respect of services rendered for the sending state, exempted from social security provisions which may be in force in the receiving state. The exception to this is that it does not apply to a private servant who is a national of or permanently resident in the receiving state or is not covered by the social security provisions of the sending state or a third state.[49]
Furthermore, Article 35 exempts the diplomatic agents from all personal services, all public service of any kind whatsoever, and military obligations such as those connected with requisitioning military contributions or billeting.
By virtue of Article 36(1), the receiving state is to permit the entry of and grant exemption from all customs duties, taxes and related charges other than charges for storage, cartage and similar services on articles for official use of the mission or use of the diplomatic agent or members of his family forming part of his household, including articles intended for his establishment.
11.3 Personal immunities of members of the administrative and technical staff and members of their families forming part of their respective households
Article 37(2) gives members of the administrative and technical staff of the mission, including members of their families forming part of their respective household if not nationals of or permanently resident in the receiving state privileges and immunities contained in Articles 29 to 35 as applicable to diplomatic agents and as discussed above under that heading. Their immunity from civil and administrative jurisdiction under Article 31(1) does not extend to acts performed outside the course their duties.
Article 38(2) grants the administrative and technical staff who are nationals of or are permanently resident in the receiving state immunities and privileges only to the extent admitted by the receiving state. The receiving state must, however, exercise its jurisdiction over those persons in such manner as not to interfere unduly with the performance of their functions for the mission.
11.4 Members of the service staff of the mission
This category of staff members, who are not nationals of or permanently resident in the receiving state, enjoy immunity in respect of acts performed in the course of their duties, exemption from dues and taxes on the emoluments they receive by reason of their employment and exemptions in respect of social security provisions as provided by Article 33.
Their family members do not enjoy these immunities and privileges. The provision of Article 38(3) applies also to those who are nationals of or permanently resident in the receiving state. They enjoy immunities and privileges to the extent admitted by the receiving state.
11.5 Private servants
These are persons in the domestic service of a member of the mission and who are not employees of the sending state.[50] If not nationals of or permanently resident in the receiving state, they shall be exempted from dues and taxes on the emoluments they receive because of their employment and the applicable provision of Article 33. They enjoy privileges and immunities only to the extent admitted by the receiving state without the receiving state unduly interfering in the performance of their functions.
11.6 Members of the mission in third states
Article 40 provides that if a diplomatic agent passes through the territory of a third state, which had granted him visa while proceeding to take up or returning to his post or when returning to his own country, the third state shall accord him inviolability and such other immunities as may be required to ensure his transit or return. These privileges also extend tohis family members who may accompany him or travel separately to join him or to return to their country. The third state shall not hinder the passage of other members of the mission and their families. Private servants are not covered by this provision.
12. Commencement and Termination of Privileges and Immunities
Diplomatic privileges and immunities commence when the person entitled to it enters the territory of the receiving state on proceeding to take up his post or, if already in its territory, from the moment the Ministry of Foreign Affairs or such other ministry as may be agreed is notified of his appointment.[51]
On the other hand, diplomatic immunities and privileges ceases when the functions of a person enjoying them terminates. The cessation takes effect the moment he leaves the country or upon the expiry of a reasonable period specified for his departure. The privileges and immunities subsist until the time of departure, even in case of armed conflict. His immunity continues to subsist as regard acts performed in the exercise of his functions as a member of the mission.[52]
13. The Nigerian Perspective
It is trite that rules of international legal norms do not receive automatic force of law within municipal system except to the extent that such municipal system has incorporated them. The Nigerian legislation in respect of the topic under reference is the Diplomatic Immunities and Privileges Act 1962,[53] the Laws of The Federation of Nigeria, 2004 (hereafter referred to as the Act).
The Act assimilates the entire provision of the VCDR 1961 and thereby gives immunities and privileges to the same categories of persons who enjoy them under the Vienna Convention.[54] The immunities so accorded them are as applicable under the Convention except that the Act failed to place restrictions on the applicability and enjoyment of the immunities of diplomats in the country.
13. 1 Immunity from civil jurisdiction
This is referred to as immunity from suit and legal process. It confers an absolute immunity on the mission and its members[55] contrary to Article 31 of the VCDR which gives exceptions to this immunity. The Supreme Court of Nigeria in Isola Noah v His Excellency The British High Commissioner[56] held that an action against the British High Commissioner was an abuse of court process contrary to section 1 of the Diplomatic Immunities and Privileges Act. Therefore, a diplomatic agent cannot be prosecuted or detained in Nigeria.
13.2 Exemption from any public tax, duty, rate, levy of fee[57]
These immunities can be waived by the diplomat with the consent of his government in the case of immunity applicable to the diplomat[58] and the Act provides in section 16 that the immunities and privileges can be withdrawn if the receiving state does not reciprocate. Also, where the immunities and privileges accorded a diplomat in Nigeria exceed those accorded Nigerian diplomats by the authority of the sending state; section 8 allows for a withdrawal of such immunity and privilege. This seems to be the guide in the recent face-off between Nigeria and South-Africa where Nigeria refused South-Africans entry into the country in response to the South-Africa’s refusal to allow Nigerians on board a flight entry to their country.
It is remarkable that the Act not only applies to diplomatic mission but also applies to consular mission and international organizations. As has been noted, its provisions extremely lavish immunities and privileges on diplomats and persons who have connection with a diplomatic mission without exceptions as against the extent endorsed by the Convention of 1961. The basis for this seems to be an expectation of reciprocity from beneficiary countries.
14. Conclusion
From all aforesaid, it is crystal clear that the concept of
diplomatic mission, which is an off-shoot of diplomatic relations (diplomacy) dates back to the ancient times. So do the immunities and privileges incidental to the establishment and functions of diplomatic mission. Various changes and developments have taken place in the course of time and have positively and otherwise affected this area of international law.
Until the codification of the customary norms, the Vienna Regulation of 1815 was the only treaty in respect of diplomatic missions. The principles guiding diplomacy became codified in the Vienna Convention on Diplomatic Relation of 1961 and same has been enacted in the municipal legislations of various countries including Nigeria.
Diplomatic relations have enhanced the achievement of the states objectives and interests over the years. Therefore, there is a need for the international law governing this field that is the Vienna Convention on Diplomatic Relations 1961 and even the municipal laws thereon, to be amended and improved from time to time to reflect the needed changes that will meet the challenges of this age for the betterment of human relations.
Against this backdrop, while encouraging nations to make do with the measures already available in the Convention to curb abuses and breaches of diplomatic immunities and privileges, such as declaring a diplomat persona non grata, it is also our recommendation that the Vienna Convention on Diplomatic Relations 1961 should be amended to include stiff sanctions on defaulting states for the abuse of and/or breach of the diplomatic immunities and privileges by their missions and members. Further to this, there is need to now give opportunity for legal redress to victims of such abuses. This will facilitate respect between states and growth of municipal laws on the subject.
The Nigerian State is one of the States that still offer absolute immunity to foreign diplomats. Thus, it is recommended that our Diplomatic Immunities and Privileges Act be developed to match up with the current internal standard. In other words, the Nigerian Act should regulate the extent of immunity granted to diplomatic missions and agents in this country and ensure that other countries reciprocate our gesture well enough.
* LL.M, BL. A Port Harcourt based legal practitioner.
[1] The Holy scriptures have record of ancient diplomatic relations, see the Holy Bible in Genesis 14; see also M. U. Gasiokwu, Contemporary Issues and Basic Documents on Diplomatic and Consular Law, (Enugu: Chenglo Limited, 2004), pp. 3-4.
[2] Gasiokwu, ibid.
[3] Nascimento Silva, Diplomacy in International Law, (Leiden: Sijthoff, 1972), p. 33
[4] The Protocol of the Congress of Vienna of 1815 on the Rank of Diplomacy Representatives with the Anchen Protocol of 1818 as its supplement was the only treaty on the subject.
[5] Silva, above note 3.
[6] Vienna Convention on Diplomatic Relations, Apr. 18, 1961, United Nations, Treaty Series, vol. 500, p. 95.
[7] Article 2, VCDR 1961.
[8] Id., Article 14.
[9] Ibid., Article 14(1)(b).
[10] Ibid., Article 14(2).
[11] Ibid., Article 3(1), id.
[12] Id., Article 3(2).
[13] See: the Vienna Regulation 1815.
[14] Above note 6,Article 14(1).
[15] Id., Article 4(2).
[16] Ibid., Article 13(1).
[17] Ibid., Article 1(c).
[18] Id., Article 1(h).
[19] Ibid., Article 8.
[20] Ibid., Article 11.
[21] Ibid., Article 9.
[22] Preamble to the Vienna Convention on Diplomatic Relations 1961.
[23] 2 YBILC (1958) 95.
[24] See Radwan v Radwan (1973) Fam 24; Gerhard Von Glahn, Law Among Nations, 4th Edition (Macmillan, 1981) p 446-447.
[25] See Gerhard Von Glahn, Law Among Nations, (4th Edition), [Macmillan,1981] p. 446-447; Radwan v Radwan (1973), ibid.
[26] Article 22(2) and art. 45.
[27] The Iran case, ICJ Reports 1980 pp. 3, 30-31; 61 ILR p 556.
[28] See Malcolm N Shaw, International Law, (4th Edn), [London: Cambridge, 1997] 525-526.
[29] See Gerhard Von Glahn, Law Among Nations, 4th Edition [Macmillan, 1981] p.446; Malcolm N Shaw, International Law, 4th Edition [London: Cambridge, 1997]528.
[30] (1973) Fam. 23.
[31] Id., at 34.
[32] ICJ Reports 1950 p 266 at 274-275.
[33] Article 24, id.
[34] Article 45(a), id.
[35] At the Vienna Conference, there was a division of opinion between the developed and developing states over the right to install and use a wireless transmitter without consent. The former felt that consent was not required.
[36] Year Book of the ILC; 1989 Vol II, Pt. 2 at p. 15.
[37] Foreign Affairs Committee Report.
[38] Malcolm N Shaw, above note 40 at p. 530.
[39] Id., Article 1 (d) & (e).
[40] Article 1 (b) (c) & (e), id.
[41] Section 255 of Title 22 Regulation.
[42] Exceptions to Article 31(1), id.
[43] See Dickinson v Del Solar (1930) 1 KB 376.
[44] Id., Article 31(4).
[45] This is contained in Article 31 (2), ibid.
[46] Shaw, above note 40 at 536.
[47] (1987) 2 All ER 396.
[48] Ibid.
[49] Id., Article 33.
[50] Id., Article 1(h).
[51] Id., Article 39(1).
[52] Id., Article 39(2).
[53] Now CAP D9, Laws of the Federation of Nigeria, 2004.
[54] See Section 1(1) of the Diplomatic Immunities and Privileges Act1962 now CAP D9, the Laws of The Federation of Nigeria, 2004 (hereafter referred to as the Act).
[55] Ibid., ss. 1(1) and 11(2) (a).
[56] (1980) NSCC vol. 12, 265.
[57] Ibid., Section 9(1).
[58] Ibid., Section 2.