Diplomatic and Consular Law

Rules regulating the various aspect of diplomatic relations are the result of centuries of
States practice. They constitute one of the earliest expressions of International Law.
Whenever in history there have been independent States coexisting, special customs have
developed on how the representatives of one State would be treated by other State.
Traditionally, diplomatic relations have been conducted through ambassadors and their
staffs.

However, with the growth of trade and commercial transactions the office of

consul was established.

Today, diplomats and consuls perform useful functions in the host states. They provide
permanent presence in host States, pursue friendly relations between their States and
the host States, and promote the various interests of their States in the host states.
Because of the important roles played by diplomats and consuls in international relations,
it is necessary to treat this subject in the following two sections. Thus, section one is
devoted to diplomatic mission, while section two is devoted to consular post.
Section 1: Diplomatic Mission [2]
Today, all States are represented in foreign States by diplomatic representatives. These
diplomatic representations are of a

permanent nature, although representatives are

changeable.
The emergence of permanent as distinct from temporary diplomatic missions is dated back
to the 17th Century.

Rules related to rights, duties, privileges and immunities of

diplomatic representatives were developed through customs in the 18th Century. In the
early 19th Century, some common understandings on the rules were reached to at the
Congress of Vienna of 1815. Developments of diplomatic rules have continued since that
date. The new and the most extensive codification of the diplomatic law was achieved in
1961 by the conclusion of the Vienna Convention on Diplomatic Relations.[3]

This

Convention both codified existing rules and established others. It laid down rules related
to classes of heads of a diplomatic mission, members of a mission, appointment and
reception of the head of a mission, functions of a mission, the privileges and immunities of
a mission and its members, the duties of the members of a mission, the duties of the
receiving State, and the termination of the mission.

It provided that matters not

regulated by the Convention continue to be governed by the rules of customary

International Law. In the following, all these rules are dealt with.

Members of a Mission and Classification of Heads of a Mission [4]

Under the 1961 Vienna Convention on Diplomatic Relations, members of the diplomatic
mission are the following:
(1)

The head of the mission: The person who is charged by the sending State with the

duty of acting in that capacity.

(2)

Members of the diplomatic staff: The members who have diplomatic rank.

(3)

Members of the administrative and technical staff: The members who are

employed in the administrative and technical service of the mission.

(4)

Members of service staff: The members who are employed in the domestic service

of the mission.

The Convention divided Heads of diplomatic missions into three classes, namely:
(1)

Ambassadors accredited to Heads of States.

(2)

Special envoys and ministers accredited to Heads of States.

(3)

Charges daffaires accredited to Ministers for Foreign Affairs.

The class to which the head of a mission is assigned is a matter of agreement between

the concerned States. Except as concerns precedence and etiquette, there is no

differentiation between heads of a mission by reason of their class. However, heads of
missions are to take precedence in their respective classes in the order of the date and
time of taking up their functions.

B. Appointment of Heads and Diplomatic Members of the Missions [5]

Under the Convention, the appointment of a diplomatic agent (the head of the
diplomatic mission or any member of the diplomatic staff) is subject to the agreement of

the receiving States which has the right to refuse the appointment of any particular
person without being obliged to give reasons. Because of the possibility of refusing the
proposed person, it is the practice of States that the sending State usually notifies the
receiving State of the name of the person proposed to be appointed a diplomatic
agent. When the receiving State gives its consent to the proposed person, then the
sending State can proceed with the formal appointment of the diplomat and accredit
him. Accreditation is done by furnishing the head of the mission or any member of the
diplomatic staff with certain official papers known as letter of credence or
credentials. The credentials of the head of a mission are presented to the Head of the
receiving State in a ceremonial reception.
It is still, however, that the receiving state can at any time without obliged to explain
its decision to notify the sending State that a particular diplomat is persona non grata; in
such case, he should be recalled and his functions should be terminated.

C. Functions of the Diplomatic Mission [6]

The functions of a diplomatic mission as stated by the Convention consist among other
things of:

(1) representing the sending State in the receiving State;

(2) protecting in the receiving State the interests of the sending state and its nationals,
within the limits permitted by International Law;
(3) negotiating with the Government of the receiving State;
(4) ascertaining by all lawful means conditions and developments in the receiving State,
and reporting thereon to the Government of the sending State;
(5) promoting friendly relations between the sending State and the receiving State, and
developing their economic, cultural and scientific relations.

In addition to these functions, the diplomatic mission can perform consular functions
since nothing in the Convention prevents it from performing such functions.

D. Privileges and Immunities of a Diplomatic Agent [7]

The Convention grants the head of the diplomatic mission and members of the
diplomatic staff of the mission as well as members of their families certain privileges and
immunities from jurisdiction of the receiving State. It has been the practice that an
ambassador to a certain State submits to the Ministry for Foreign Affairs of that State a
list containing the names of members of the diplomatic mission with their positions, ranks
and functions, and the names of persons who should be granted full or limited immunity.
The most important privileges and immunities granted to a diplomatic agent (the head
of the mission and members of diplomatic staff) are:

(1)

A complete immunity from the criminal jurisdiction of the receiving State;

(2)

Immunity from the civil and administrative jurisdiction of the receiving state, except

in the case of:

i.

a real action related 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.
ii.

an action related to succession in which he is involved as executor,

administrator, heir or legatee as a private person and not on behalf of the sending State;
iii.

an action related to any professional or commercial activity exercised by him in

the receiving State outside his official functions.

(3)

The inviolability of his person.

(4)

Exemption from all dues and taxes, personal or real, national, regional or municipal in

the receiving state, except indirect taxes, taxes and dues on private immovable, dues on

inheritance, dues and taxes on private income, and charges levied for specific services
rendered;
(5)

Freedom of communication for official purposes;

(6)

The right to move freely in the territory of the receiving State.

(7)

The inviolability of his private residence.

(8)

The inviolability of his papers, correspondence and property

The above privileges and immunities are enjoyed by a diplomatic agent from the moment
he enters the territory of the receiving State on proceeding to take up his post or, if
already in its territory, from the moment when his appointment is notified to the Ministry
for Foreign Affairs. He also enjoys such privileges and immunities when passes through or
is in the territory of a third State on proceeding to take up or to return to his post, or
when returning to his own country.
The immunity from jurisdiction granted to a diplomatic agent is immunity from the
jurisdiction of the receiving State and not from liability. He is not immune from the
jurisdiction of the sending State. Moreover, he can be sued in the receiving state after a
reasonable time elapses from the ending of his mission.
The immunity of a diplomatic agent from jurisdiction of the receiving State may be
waived by the sending State. The waiver must be express. However, such waiver of
immunity from jurisdiction does not imply waiver of immunity in respect of the execution
of a judgment; in such case, a separate waiver is required. Immunity may also be waived by
the diplomatic agent himself, by submitting voluntarily to the jurisdiction of the court of
the receiving State.
Members of the family of a diplomatic agent, if they are not nationals of the receiving
State, likewise enjoy the same privileges and immunities. The same privileges and
immunities, with certain exceptions, is enjoyed by members of the administrative and
technical staff of the mission, together with members of their families forming part of
their respective households, if they are not nationals or permanent residents of the
receiving State. Members of the service staff who are not nationals or permanent
residents of the receiving State enjoy immunity from jurisdiction only in respect of acts
performed in the course of their official duties.

As regard the mission itself, the Convention makes its premises, achieves, documents,
correspondence and diplomatic bag inviolable. Moreover, it grants the premises of the
mission, their furniture and other property thereon, and the means of transport of the
mission the immunity from search, requisition, attachment or execution. The premises of
the mission are also exempt from all national, regional or municipal dues and taxes, other
than such as represent payment for specific services rendered.

E. Termination of a Diplomatic Mission or of the Functions of a Diplomatic

Agent [8]

A diplomatic mission or the functions of a diplomatic agent may be terminated

permanently or temporary by various means and for various reasons, some are stated in
the Convention and others are established by States practice. Among these means and
reasons are the following:

(1)

Breaking off the diplomatic relations between the sending and the receiving States

because of a war or any other reason.

(2)

A recall of the diplomatic agent by his sending State upon its initiative, or at the

request of the receiving State.

(3)

A notification by the sending State to the receiving State that the functions of

the mission or the diplomatic agent has come to its end.

(4)

A notification by the receiving State that the diplomatic agent is a persona non

grata.
(5)

Resignation of the diplomatic agent.

(6)

Death of the diplomatic agent.

Section 2: Consular Post [9]

The institution of consular post is much older than that of diplomatic mission. The
modern system of consular post is dated back to the 16 th Century. The 1963 Vienna
Convention on Consular Relations is the law governing consular representation.[10] A
consular officer (any person, including the head of the consular post, entrusted with the
capacity to exercise consular functions) like a diplomatic agent, represents his State in
the receiving State. However, unlike a diplomatic agent, he is not concerned with political
relations between the two States, but with a variety of administrative functions, such as
issuing visas and passports, looking after the commercial interests of his State, and
assisting the nationals of his State in distress.
In the following, the rules governing consular relations, namely members of the consular
post, classification of the head of the post, the appointment of consular officers,
functions of the consular post, privileges and immunities of consular officers, and the
termination of post, are dealt with.

A. Members of the Consular Post and Classification of the Heads of the

Post [11]

The members of the consular post as stated by the 1963 Vienna Convention are:

(1)

The head of the post: The person charged by the sending State with the duty of

acting in that capacity.

(2)

Consular officers, other than the head of the consular post: Persons entrusted to

exercise consular functions.

(3)

Consular employees: Persons employed in the administrative and technical service of

a consular post.
(4)

Members of the service staff: Persons employed in the domestic service of the

consular post.
(5)

Members of the private staff: Persons employed exclusively on the private service

of members of the consular post.

The heads of a consular post are divided into four classes, namely:

(1)

Consuls-General.

(2)

Consuls.

(3)

Vice-Consuls.

(4)

Consular agents.

The class to which a head of a consular post is assigned is a matter of agreement

between the concerned states.

B. Appointment of a Head of the Consular Post [12]

The head of a consular post is appointed by the sending State and is admitted to
exercise his functions by the receiving State. The sending State normally notify the
appointment of a consul to the receiving State which has the right either to issue an
exequatur or refuse to issue it without obliged to give reasons. The exequatur is a
written official recognition and authorization of the consul. If the receiving State has no
objection against the appointment, the exequatur is issued. Normally, a consul does not
take his post until receiving an exequatur. If subsequently, an objection is raised, the

receiving State may notify the appointing State that the consul is no longer
acceptable. Then the appointing State must recall him, if it does not, the receiving State
may withdraw the exequatur. Furthermore, a receiving State may notify the sending
State that any member of the consular post is not acceptable.
C. Functions of a Consular Post [13]
Consular post is different from diplomatic mission in its functions. While diplomatic
mission is concerned with political relations between the two States, the consular post
exercises a variety of administrative functions. Furthermore, while there is only one
diplomatic mission in a State, there can be more than one consulate in one State. The
major functions of consular posts are:

(1)

Protecting the interests of the sending State and its nationals in the receiving

State.
(2)

Furthering the development of commercial, economic, cultural and scientific

relations between the sending State and the receiving State.

(3)

Promoting friendly relations between the sending State and the receiving State.

(4)

Reporting to the sending State on the conditions and developments of the

commercial, economic, cultural and scientific life of the receiving State, and giving such
information to interested persons.
(5)

Issuing passports and travel documents to nationals of the sending State, and

giving visas to persons wishing to travel to that State.

(6)

Helping and assisting nationals of the sending State, safeguarding their interests

in certain cases, and representing or arranging for their representation before the courts
and other authorities of the receiving State.
(7)

Transmitting judicial and extra-judicial documents to the receiving State.

(8)

Exercising a supervision and inspection powers over vessels and aircrafts having

the nationality of the sending State, and over the crews of these vessels and aircrafts.
(9)

Acting as notary and civil registrar, and performing certain functions of

administrative nature.

A consular post can perform other functions entrusted to it by the sending State which
are not prohibited by the laws and regulations of the receiving State, not objected by the
receiving State, or referred to in the international agreements in force between the
sending state and the receiving State.

D. Privileges and Immunities of Consular Officers [14]

Nowadays, many States combine its diplomatic and consular services together. Thus, a
person who acts simultaneously as a diplomatic agent and a consular officer enjoys the
diplomatic privileges and immunities under the 1961 Vienna Convention on Diplomatic
Relations. If the consular functions are exercised by the consular post, then the consular
officer enjoys the consular privileges and immunities under the 1963 Vienna Convention on
the Consular Relations.
Under the 1963 Vienna Convention on the Consular Relations, consular posts, members
of a consular post (consular officers and employees), members of their families and
members of their private staff enjoy certain privileges and immunities. These privileges
and immunities are less than what diplomatic mission and diplomatic agents are entitled
to. The most important privileges and immunities are the following:
(1)

A consular officer (the head of the consular post and any person entrusted to

exercise consular functions) is immune from an arrest or detention pending trial, except in
the case of a grave crime and pursuant to a decision by the competent judicial
authority. He is immune from imprisonment or any other restriction on his personal
freedom save in execution of a final judicial decision. If criminal proceedings are
instituted against him, he must appear before the competent authorities. The
proceedings must be conducted in a manner that respects his official position and does not
hamper the exercise of consular functions, and with the minimum delay.
(2)

A consular officer and a consular employee (any person employed in the

administrative or technical service of the consular post) are immune from the jurisdiction
of the judicial or administrative authorities of the receiving State only in respect of acts

performed in exercise of consular functions. However, they do not enjoy such immunity in
respect of a civil action either:
i.

Arising out of a contract concluded by them not as agents of the sending

State; or
ii.

Brought by third party for damages arising from an accident in the receiving

State caused by vehicle, vessels or aircraft.

(3)

A consular officer and a consular employee and members of their families

forming part of their households are exempt from all dues and taxes, except on certain
specified cases.
(4)

A member of the consular post (the head of the post, any person entrusted to

exercise consular functions, any person employed in administrative or technical service of

the post and in the domestic service of the post) is under no obligation to give evidence
concerning matters connected with the exercise of his functions or to produce official
correspondence and documents related thereto. He is also entitled to decline to give
evidence as expert witness with regard to the law of the sending state.
(5)

A member of the consular post enjoys the freedom of communication for official

purposes.
(6)

A member of the consular post enjoys the right to move freely in the territory

of the receiving State.

(7)

The archives, documents, official correspondence and consular bag are inviolable

at any time and whenever they may be.

(8)

The premises of the consular post and the private residences of members of the

consular post are inviolable. They are, also, exempt from all taxes and dues other than
such as represent payment for specific services.

The above privileges and immunities are enjoyed by the member of the consular post
from the moment he enters the territory of the receiving State on proceeding to take up
his post or, if already in its territory, from the moment when he enters on his duties. The
same privileges and immunities are enjoyed by members of the families of the members of
the consular post.

The privileges and immunities of the consular post may be waived by the sending
State. The waiver must be express and be communicated to the receiving State in
writing. However, the waiver of immunity from jurisdiction for the purposes of civil or
administrative proceedings does not imply waiver of immunity from the execution of a
judicial decisions; in such case, a separate waiver is required. Immunity may also be waived
by the member of the consular post himself, by submitting voluntarily to the jurisdiction
of the court of the receiving State.
E. Termination of a Consular Functions [15]
The consular functions may be terminated by various ways and reasons. Among these
ways and reasons are the following:
(1)

A recall of the member of the consular post by his appointing State upon its

initiative, or at the request of the receiving State.

(2)

A notification by the appointing State to the receiving State that the functions of

the post or any of its members are terminated.

(3)

The withdrawal of the exequatur by the receiving State.

(4)

Resignation of the member of the consular post.

(5)

Death of the member of the consular post.

(6)

The breaking off relations between the sending and receiving States, such as in

case of a war.