Diplomatic and consular law

International Law · Treaties, diplomacy and responsibility. The idea in plain words, the rules to remember, the mistake to avoid and a worked example, written and checked by Mega Lecture.

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The idea

The Vienna Convention on Diplomatic Relations 1961 protects diplomats so that missions can work without pressure from the host. A diplomatic mission represents the sending state, negotiates with the receiving government and reports on conditions there. Its premises are inviolable, and the diplomat cannot be arrested or detained and is immune from criminal jurisdiction.

The receiving state's remedy is to declare a diplomat persona non grata, without giving reasons; the sending state must then recall him.

Consuls, under the Vienna Convention on Consular Relations 1963, do not represent the state politically. They help nationals, issue passports and visas and promote trade, and their immunity is narrower.

Rules to remember

1961 Convention, Article 22: mission premises are inviolable; entry only with the consent of the head of mission; the host must protect them.
Article 29: the person of a diplomatic agent is inviolable. Article 31: immunity from criminal jurisdiction; civil immunity has exceptions (private immovable property, succession, private commercial activity).
Article 9: persona non grata, at any time and without explanation. Article 27: the diplomatic bag shall not be opened or detained.
Immunity belongs to the sending state; only that state can waive it, and waiver must be express.
Agrément: host's approval of a head of mission. Exequatur: host's authorisation of a head of consular post.
1963 Convention: consular immunity covers official acts only; arrest only for a grave crime on a judicial decision (Article 41); Article 36 gives arrested foreigners the right to have their consulate notified.
Tehran Hostages case (1980): the host state breached its duty to protect the embassy and its staff.

Common mistake

Students give consuls the same full immunity as diplomats. A consular officer is immune only for acts done in the exercise of consular functions, and breaking diplomatic relations does not by itself end consular relations.

Worked example

A diplomat posted in State R privately runs a carpet shop there for his own profit. A supplier sues him in R's courts for unpaid goods delivered to the shop. Can he plead diplomatic immunity?

Article 31 of the 1961 Convention gives a diplomatic agent immunity from civil jurisdiction, with listed exceptions.
One exception is an action relating to any professional or commercial activity carried on in the receiving state outside his official functions.
Running a private shop for profit is such an activity, so the claim falls within the exception.

Answer: No. Immunity from civil jurisdiction does not cover his private commercial activity, so the court may hear the claim.

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