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ZAMBIAN OPEN UNIVERSITY

Email address [email protected]

Student ID 21981799

Program Bachelor of Laws (LLB)

Course name International law 1

Course code LL321

Year Third Year

Semester First

Assignment number one

Date of submission 3rd September, 2021

Cell +260966092893

Lecturer Ms. Chinambu

QUESTION

Making reference to decided cases, explain the importance of diplomatic and consular
immunities in international relations.
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INTRODUCTION

This paper endeavors to explain the importance of diplomatic and consular immunities in
international relations enshrined in The Vienna Convention on Diplomatic Relations of 1961
and The Vienna Convention on consular relations respectively. A diplomat is also referred to
as an ambassador, however, a diplomat is an official accredited by the government to
represent the sending government in its relations with other government or international
organizations. A consul on the other hand is the official who resides in a foreign country for
the purposes of protecting and representing the interest of the citizens from his or her home
country. Diplomats and consuls enjoy immunities which will be discussed hereunder and it is
a form of legal immunity which exempt diplomats and consuls inter alia from any for form of
arrest though the immunity may be waived leading to the expulsion of the diplomats and
consuls. Immunity therefore is a freedom or exemption from legal proceedings, prosecution
granted by the government authority or legislation1. This paper will explain the immunities of
diplomats and consuls and highlights their importance in international relations. The paper
will finally draw a sound conclusion of the matter presented.

SENDING AND RECEIVING STATES

When two countries have come to an agreement to establish diplomatic relations, they
actually swap representatives who work in respective capitals. The receiving state or the host
has an obligation in regards to the privileges and immunities to be given to the diplomatic
missions. Internationally, immunities of diplomatic and consular are found in Vienna
convention on diplomatic relations and Vienna convention on consular relations while in
Zambia are enshrined in the diplomatic immunities and privileges act 2. However, there is no
right as such under international law to diplomatic relations; hence they do exist by mutual
consent between states.3 It is not mandatory that states should enter into diplomatic relations,
therefore if a state does not want, it can not be compelled to do so. Article 4 of the Vienna
convention states that a sending state must make sure that a consent or agreement has been
given by the receiving state for the proposed head of its missions, if the receiving state has
withheld its consent, they are not obliged to give any reason for doing so 4. Article 41 of the
convention provides that all the persons enjoying privileges and immunities should respect

1
Elizabeth, A. and J. law (1998). Oxford Dictionary of law (10th edn). New York: OUP. P242
2
Diplomatic immunities and privileges act chapter 20 of the laws Zambia
3
Shaw, M.N [2000], international law (6thed). New yoke: Cambridge university press. P750
4
Article 4 of the Vienna convention on diplomatic relations of 1961
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the laws and regulations of the receiving state not to interfere in the internal affairs of the
particular state.5

DIPLOMATIC IMMUNITIES

Many years ago representatives of other governments demanded that they needed to perform
their functions without fear of injury or death. Therefore protective measures referred to as
immunities were put in place to limit the absolute power or jurisdiction of the receiving state
wherein they served.6 The mutual interests of the sending and receiving states required the
creation of special privileges and immunities from local prosecution. Diplomats were
protected from both receiving state authorities and private citizens in civil and criminal
matters.7
The main purpose of creating immunities was to allow foreign diplomats focus on diplomatic
functions, without fear of arrest or wasting their time by involving themselves in litigation
other than diplomat's official functions. Consular immunities are more limited than
diplomatic immunities. The diplomat and his or her staff are granted full immunity from the
jurisdiction of the receiving state where as Consular officers enjoy less immunity for
receiving state arrest or civil litigation. The reason why they enjoy less immunity is because
they basically represent less sensitive interests than ambassadors and diplomats.8
Article 27 provides that the receiving state shall permit and protect free communication on
behalf of the mission for all official purposes. This 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. 9 Article 27(3) and (4)
deals with the diplomatic bag, and provides that the diplomatic bag shall not be searched,
opened or detained by any local authorities and that the packages constituting the diplomatic
bag must have a visible external mark of their character and should only contain diplomatic
documents or articles intended for use of diplomatic relations.
In the UK v Nigeria [Dikko incident] in 1984, a former Nigerian minister was kidnapped in
London and placed in a crate to be flown to Nigeria. The crate was opened at Stansted
Airport, although accompanied by a person claiming diplomatic status. The crate did not
contain an official seal and was thus clearly not a diplomatic bag 10. In another case diplomatic
5
Abid article 41
6
ibid
7
Shaw, M.N [2000], international law (6thed). New yoke: Cambridge university press. P756
8
ibid
9
Article 27 of The Vienna Convention on Diplomatic Relations of 1961
10
Shaw, M.N [2000], international law (6thed). New yoke: Cambridge university press. P759
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bag meant for the British High Commission in Harare, Zimbabwe was detained and opened
by the Zimbabwe authorities, the UK government protested vigorously and announced the
withdrawal of its High Commissioner for consultations. 11 Diplomatic bag is not subject to
electronic screening, not involving opening or detention. However the UK took the view that
electronic screening of this kind would be permissible, but it has never carried out such
activities, but other states do not accept this. It is to be noted that after the Libyan Embassy
siege in April 1984, the diplomatic bags leaving the building were not searched. 12
However, this is a bit different from the consular bag, it is noted that if the competent
authorities of the receiving or transit state have serious reason to believe that the bag contains
something other than official correspondence and documents intended exclusively for official
use, they may request that the bag be opened in their presence by an authorized representative
of the sending state.
The rationale of diplomatic privileges and immunities was clear and simple; the law was
intended to give the ambassador every privilege and immunity necessary for the performance
of his office. Therefore, article 31 of the diplomatic immunities and privileges act emphasizes
that diplomatic agents shall be immune and not subject to any criminal or civil jurisdiction of
the receiving state.13 This protects them against prosecution in the receiving state for the
whole period which they execute their diplomatic functions. This immunity extends to the
family that constitutes a household of the diplomatic.
A diplomatic agent is not obliged to testify or give evidence as a witness in the courts of
law14. A diplomatic agent pursuant to article 34 of the act, a diplomatic agent is exempted
from all dues and taxes, he does not have to pay taxes in the receiving state except those that
are incorporated in the prices of goods and services, and taxes and dues on private immovable
properties located in the receiving state. A diplomatic agent shall not be inviolable. He shall
not be liable to any form of arrest or detention. In Congo v. Uganda, the International Court
held that the maltreatment by Congo forces of persons within the Ugandan Embassy
constituted a violation of article 29 in so far as such persons were diplomats, while the
maltreatment of Ugandan diplomats at the airport similarly breached the obligations laid
down in article 2915. 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. It will be recalled
11
Ibid P760
12
Shaw, M.N [2000], international law (6thed). New yoke: Cambridge university press. P759
P773
13
Article 31
14
Diplomatic immunities and privileges act, article 31(2)
15
Congo v Uganda [2005] ICJR
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that the provisions of Article 29 apply directly to the members of the family of the diplomatic
agent forming part of his household and to members of the administrative and technical staff
of the mission, together with members of their families forming part of their respective
households”. In order to facilitate the operations of normal diplomatic activities, article 22 of
the Convention specifically declares that the premises of the mission are inviolable and that
agents of the receiving state are not to enter them without the consent of the mission.
IMMUNITIES OF THE CONSULAR

Countries have long recognized the importance of consular functions to their overall
relations, but consular personnel generally do not have the principal role of providing
communication between the two countries. That function is performed by diplomatic agents
at embassies in capitals. The Vienna Convention on Consular Relations 1963 grants a very
limited level of privileges and immunities to consular personnel assigned to consulates that
are located outside of capitals.

Consuls enjoy similar immunities and privileges with the diplomats but not the same. Article
44 of Vienna convention on consular immunities provides that a member of a consular post
shall be called upon to testify or to give evidence before the court of law in the course of
judicial or administrative proceedings. However they have no obligation to evidence relating
to matters connected with the exercise of their functions and they may refuse to give
evidence. Consular officers are not subject to jurisdiction of the judicial or administrative
authorities of the receiving state with regards to the acts done or omitted to be done while
executing his consular functions except for the civil actions such as contracts and damage to a
third party arising from an accident16.

The 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 or
public utility17. If expropriation is necessary for such purposes, all possible steps shall be
taken to avoid impeding the performance of consular functions, and prompt, adequate and
effective compensation shall be paid to the sending state. The receiving state has the special
duty to protect the mission premises from intrusion or damage or impairment of its dignity. In
Boos v Barry the US Supreme Court with reference to article 22 of the Vienna convention,

16
Vienna convention on consular relations 1963 article 44
17
Article 22 of the Vienna convention on consular relations 1963
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stated that diplomatic personnel are important to conduct the international affairs which are
very crucial to the well being of the nation.18
Consular premises shall be inviolable to the extent provided in the article. 19 The authorities of
the receiving state shall not enter that part of the consular premises which is used exclusively
for the purposes of the work of the consular post except with the consent of the head of the
consular post or of his designee or of the head of the diplomatic mission of the sending
state20. The consent of the head of the consular post may, however, be assumed in the case of
fire or other disaster requiring prompt protective action. The State of residence is bound to
ensure protection of consular representatives and consular staff, and safeguard consular
officers from attack Convention maintained the basic difference between consular and
diplomatic immunities: "consular personnel enjoy immunity from legal process only in
respect of official acts, whereas diplomatic agents have full personal inviolability and
immunity from legal process.21
IMPORTANCE OF DIPLOMATIC AND CONSULAR IMMUNITIES
From what has just been explained above the diplomatic and consular immunities are
important because they give the diplomatic agents and consular officers every privilege and
immunity necessary for the performance of their office. It allows foreign envoys to focus on
diplomatic functions, without fear of arrest because it gives them an exemption from
prosecution, if there was no immunity diplomats and consuls would have been at risk of legal
and political harassment by the receiving states. However because of the immunities
conferred on them diplomats ensure that relations between two countries, the sending and
receiving state run very smoothly. Diplomatic and consular immunities promote friendly and
healthy relations between the states. If there was no immunities diplomats and consuls could
have been living in fear of being arrested, maltreated and killed especially in states where
there is violence and xenophobia. There was going to be an infringement of their human
rights such as freedom of movement and freedom of communication inter alia and it would
have been hard to communicate with the sending state make the relationship of the two states
weak. The immunities also promote peace, trade and security of the diplomats and consuls.
Lastly, the importance of diplomatic and consular immunity is that it protects the diplomatic
agents and consular officers paying taxes and not having their bags detained and searched.
18
Shaw, M.N [2000], international law (6thed). New yoke: Cambridge university press. P756
19
article 31 of the Vienna convention on consular relations 1963
20
Ibid article 31(2)
21
Curtis J. Milhaupt, the Scope of Consular Immunity under the Vienna Convention on Consular Relations:
Towards a Principled Interpretation Notes, 88 COLUM. L. REV. 841 (1988). P843
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CONCLUSION
In conclusion, from the passage it is evident that diplomatic and consular immunity is very
important in promoting peace and good relationship between two states. It gives security to
the diplomats and consuls as the receiving state is given a special duty to protect them from
any damage and intrusion, without this immunity diplomats and consuls would have been in
great danger because there would be no one to protect them in a foreign state. The immunities
also protect them from being prosecuted in the receiving state, which enables them to work
freely without fear of arrest and detained for triumph charges. The immunity is important
because it exempts them from paying taxes as evidenced by the Vienna convention on
diplomatic relations and Vienna convention on consular relations respectively. Therefore the
intention of this paper was to discuss the importance of diplomatic and consular immunity in
international relations. The paper has however started with highlighting what immunities of
diplomatic and consular are and proceeded to the importance of the said immunities.
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BIBLIOGRAPHY

Books

Craig Barker, J [2006], Protection of diplomatic personnel. Hampshire: ash gate publishing
limited

Curtis J. Milhaupt, the Scope of Consular Immunity under the Vienna Convention on
Consular Relations: Towards a Principled Interpretation Notes, 88 COLUM. L. REV. 841
(1988).
Elizabeth, A. and J. law (1998). Oxford Dictionary of law (10th edn). New York: OUP.
Shaw, M.N [2000], international law (6thed). New yoke: Cambridge university press.

United States department of state office of foreign mission: Diplomatic and Consular
Immunity.

LEGISLATION
The Vienna convention on diplomatic relations 1961
The Vienna convention on consular relations 1963
Diplomatic immunities and privileges act chapter 20 of the laws Zambia
Cases

Britain v Nigeria, [Dikko incident in 1984]