It is through the instrumentality of Diplomatic and Consular Agents essentially that sovereign states seek to promote amity amongst themselves.  These governmental agents enjoy certain immunities and privileges.  In the current trend of international relations, efforts are geared towards co-operation and interdependence of the subjects of International law irrespective of their political, cultural or other differences.

Restrictive immunity rather than Absolute immunity can be categorized in three or more neat subdivisions, namely:
(a)                       Sovereign Immunity
(b)                       Diplomatic and Consular Immunity
(c)                       Immunity of other categories of person and organization.

Sovereign Immunity: There is a need to briefly consider each of the immunity in order to know what immunity is all about.  Sovereign immunity entails that no state shall exercise jurisdiction over another state without its consent and this is best expressed with the maixm par in parem non habet imperium but the principle of international concern in my opinion had made nonsense of sovereign immunity, the current imbroglio between Iraq and America is a crystal testimony of this.  It indicated that sovereign immunity anywhere in the world is not absolute especially where there is a need for international concern.


On 1st December 1967, sixty five states were parties to the Vienna Convention on Diplomatic Relations which was adopted on 14th April 1961 and entered into force on 24th April 1964 and Nigeria was one of the states that consented to the Convention as at 1st December, 19672.

Diplomatic agents enjoy immunity from jurisdiction of court, and their properties and official correspondence are inviolable. Diplomatic bag shall not be opened or detained3.  Diplomats are representatives of their countries and indeed stood as a direct substitute for the sovereign.

In 1984, there was breach of the diplomatic immunity by British Government when Nigerian Diplomats in London were among the seventeen (17) arrested in connection with Umaru Dikko unsuccessful abduction and this consequently led to the breakdown of diplomatic relations between the two countries when the diplomats in both countries were declared personal non grata4.  Diplomats and Consuls are the representatives of the sending state to the receiving state; they must therefore be accorded the full dignity of the sovereign state.


Immunity of other categories of persons and International Organization

The extent of immunity enjoyed by International Organizations is uncertain, but practice shows that treaties in most cases regulate it, however, there is a general Convention on the privileges and immunities of the UN5.  A state enjoys complete immunity from legal process.  Other international bodies that enjoy diplomatic privileges  whom notices and orders were made include the United Nations, special UN Agencies e.g UNICEF, ICJ, UNESCO, and WHO.

1.                 The proceedings of the Vienna Conference are contained in United Nations Conference on Diplomatic                Intercourse and Immunities, official records, Vol 1 & 2 (1961) and 1962.
2.                 Article 27 of Vienna Convention on Diplomatic relations 1961.
3.                 Daily Times, July 12, 1984, center page.
4.                 Okeke N.O. Ibio P. 63.

The word “Immunity” is defined as an exemption from a specific provision of local Law (e.g. Immunity from taxation) and immunity is not meant to benefit individuals personally; it is meant to ensure that foreign officials can do their jobs. Immunity is an exception from a duty, liability, or service of process6.
It is a shield from liability in the course of job performance.  In this paper, I will focus only on the topic. Consular and Diplomatic immunity.

Diplomatic immunity is a form of legal immunity and policy held between governments, which ensures that diplomats are given safe passage and are considered not susceptible to suit or prosecution under the host country’s law7.   The word Immunity connotes the idea of freedom from normal legal process8.

The immunity of a diplomatic agent from the jurisdiction of the receiving state does not exempt him/her from the jurisdiction of the sending state.  The diplomatic immunity of an agent involves freedom from the application of local laws of the receiving state with respect to conducts, which ordinarily would attract the intervention of the law.  For instance, a diplomatic agent is free from an order of the court.  He enjoys freedom from arrest by police officers. Even when the act of a diplomatic agent ordinarily constitutes a crime, the agent is free from arrest.  Freedom from normal legal process is intended to provide a suitable environment for the proper performance of the duty of a diplomatic agent9.

5.                             Bryan A. Garner: Black’s law Dictionary (2004) 8th edition P. 765.
6.                           Michael Hardy. Modern Diplomatic law Manchester University Press page 9.             
7.                             Osawe Alice Amechi; A critical appraisal of the concept of Diplomatic Immunity in International                Law page 16.
8.                             Ibid, Osawe, Alice Amechi Page 16.

Diplomatic Mission and Staff

The diplomatic mission consists of group of diplomats, the mission gives cohesion and organic unity to the acts of the individual over the years.  To facilitate the administration of its function, individuals are employed and put in place to man different designations in the mission office.

The personnel of diplomatic missions are divided into diplomatic staff, administrative, technical, and service staff10.
Diplomatic staff
This cadre of personnel includes all those of diplomatic rank, which include the head of mission, counselors, diplomatic secretaries and attaches.
The administrative and technical staff
They consist of the clerical assistants, the archivists, wireless technicians and much more.
Service staff.
They consist of drivers, receptionist, and maintenance men, those in the domestic service of the mission.
Jurisdictional Immunity
The above-mentioned staff need certain form of immunity in order to perform their functions at the mission office.  Amongst these immunities necessary are immunity from jurisdiction, inviolability of the private residence of a diplomatic agent, his paper, correspondence and proeprty11 and much more. However, in this paper our focus will be on immunity from jurisdiction of consular and diplomatic agents, relation and staff. The receiving state has a duty to ensure that the mission is not subject to constraint, and is indeed actively protected in the exercise of the means available to it for the performance of its tasks.

9.                 Article 1 (c) (f) (g) Vienna Convention of Diplomatic Relations 1961
       11.         Ibio Article 30 (2).
In ensuring the safety of the mission and its staff, the receiving state must ensure that its own agents do not infringe the inviolability of the mission and the immunity conferred is primarily, though not exclusively procedural in character.  In the first instance, it does not exempt the Diplomats from observing local laws12.  It was opined in the case of Dickinson V Del Solar13 that Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction.  In the second instance, it ensures the protection of the mission against acts of interference by private persons.

In my discussion of consular and diplomatic immunity from jurisdiction, more light will be shed on criminal and civil jurisdiction: -

The Court basically, is the sole determinant of the individual entitled to diplomatic immunity and when this is brought to court in respect of a particular offence, two questions may be formulated.

(a)      There is need for degree of proof that the diplomat is entitled to the privilege claimed and in the case of immunity from jurisdiction, the immunity must be conferred on the diplomat ab initio before he can be exempted from legal process or liability.  The practice varies from country to country, for example, a diplomat who commits traffic offence in the United State of America may be arrested but the onus lies on the diplomat to show that he is entitled to privilege by self-identification. The court in many instances may seek the advice of the executive arm to clarify the immunity status of a diplomat.  In order to be at safer side, a certificate is normally issued to a diplomat by the foreign office of the receiving state indicating the readiness of the government to recognize and or continue to recognize the official status of the person involved.

12.                Article 41 paragraphs 1 of Vienna convention of 1961.
13.                 (1930) 1KB P. 376

In the case of Engelke V Musmann14 Lord Phillimore stated in the case that “The certificate is not a piece of hearsay evidence but a statement of what the foreign office has done”.

The certificate issued by the foreign office will prima facie show the authenticity and recognition of the diplomatic status of the person to whom it is issued.
(b)     The legal consequences of a successful claim must be determined by court.  A successful claim to immunity must be determined in a final ruling by court looking at the local law and the immunity afforded the claimant as well as the effect of any judgment given elsewhere relating to the diplomatic agent concerned15.

There is a need to distinguish Consuls from Diplomats for better understanding of the title. 
Consuls like Diplomats represent their state in another state, but unlike Diplomats, they are not concerned with political relations between the two states. A state may appoint in the territory of others with the express or tacit consent of the latter consuls who shall there represent and defend their commercial and industrial interests and render to their nationals such assistance and protection as they may need. It is traditional for the Consul to be recognized only after having presented his commission and obtained the exequatur of the state in whose territory he is to serve. The exequatur may however be withdrawn by the receiving state but must have previously make attempt to obtain from the sending state his recall thus, the exequatur can be withdrawn in urgent cases.
   14.        (1928) ACP. 433 at P. 45.
15.                        Ibid Michael Hardy Modern Diplomatic law P. 55.

A person therefore ceases to be a Consul upon
(a)           Notification to the receiving state of the termination of his authority by      the sending state or
(b)           Termination of the consent of the receiving state, that is, by withdrawing    his exequatur which is tantamount to declaring a diplomatic envoy a           personal non grata; or
(c)           Extinction of the sending or the receiving state16.
Vienna Convention on Consular relation of 196317 grade consuls as follows:
(a)           Consul General
(b)           Consuls
(c)           Vice Consuls
(d)           Consular Agents
Consuls are strictly speaking not diplomats; they do not usually fulfill diplomatic function and they are resident officers whose primary duties are to protect the commercial interest of the sending state.  The consent of the receiving state is expressed in the form of an exequatur earlier mentioned for the purposes of promoting trade and helping businessmen to establish contact with other businessmen in the receiving state among other things.  Inter-countries relation either for political reasons or commercial purpose is an act of foreign policy which is indissolubly bound up with diplomacy.  Diplomacy is the most important instrument of a state’s foreign policy. It serves solely the aims of foreign policy and in a large measure predetermines the limits and ways for the employment of other instruments in foreign policy18. Foreign policy is the sum total of the state’s aims and means of intercourse with other states and nations. It has its own specific features and forms of implementation.

16.            Havard Research Draft Convention on the Legal position and functions of consuls 26 A.J.I.L                                            (1932) Supp. 189)
17.            Article 9.
18.            Diplomatic Dictionary, Vol 1. Moscow 1960 P. 457

Nevertheless, it is organically bound up with domestic policy of the state19.  Accordingly, all states subject to mutual consent between the states concerned send and receive consuls which explains the smooth working of rules of consular immunity due to the principle of reciprocity involved.  Nigeria after independence acceded to the Vienna Conventions on Consular Relations in 1963.
At independence in 1960, the Diplomatic Immunities And Privileges (Common Wealth Countries and the Republic of Ireland) 20.
After independence, Nigeria acceded to the Vienna conventions on Diplomatic and Consular Relations in 1961 and 1963 respectively. The Diplomatic Immunities and privileges Act of 1962, gave effect to the relevant provisions of the two Vienna conventions in Nigeria law. The Diplomatic Immunities and privileges (Amendment) Act 21 amended the 1962 Act.

Under International law, treaties and conventions signed by states are binding on the states that are signatories to the treaties and conventions only and the states must respect the agreement (pacta sunt servanda). Some states in addition may promulgate the Treaties and Convention into local Act. In my opinion, the local legislation is binding on the citizen as objects of international law while the treaties and conventions are binding on the states that are parties’ to the conventions as subjects of international law.

It is a jus congen that must be observed without breach having been parties to it. In this situation, Nigeria had reduced the Conventions into local legislation.
The Act consolidated all the previous laws on diplomatic and consular relations in the country, i.e. the Diplomatic Immunities And Privileges Act and the Diplomatic Privileges (Extension) Act.
19.                Okeke, CN Op C.t P. 55.
20.            OP Cit.
21.             1974

Before the coming into force of the two Vienna Conventions on Diplomatic and Consular Relations, state practice tended to differ much but this has significantly stabilized since the emergence of the Conventions 22.

Consuls proper are usually distinguished from Honorary Consuls. The appointments of Honorary Consuls are not permanent, that is it is temporary in nature compare to regular Consuls. The position attracts no remuneration and they work on part time. Honorary Consuls unlike proper Consuls are untrained; their appointments are based on their high proven integrity.

The official residence of the consuls and places used for the consulate’s offices and archives are inviolable and in no case shall the local authorities enter them without the permission of the Consular Agents, neither shall they examine nor seize under any pretext whatsoever, documents or other objects found in a consular office. No Consular Officer shall be required to present his official files before the courts or to make declaration with respect to their contents. A consular office shall not be entered by the police or other authorities of the territory provided such office is devoted exclusively to consular business except with the consent of the Consular Officer. The consent of the consular officer shall be presumed in the event of fire or other disaster or in the event that the authorities of the territory have probable cause to believe that a crime or violence has been or is being or is about to be committed in the consular office. The provision of consular inviolability is not applicable to a Consular Officer, who is a national of the receiving state, or who is not a national of the sending state.

22.             Okeke C. N. OP Cit page 56.
A Consular Officer or employee shall be entitled to refuse a request from the courts or authorities of the territory to produce any documents from his archives or other official papers or to give evidence relating to matters within the scope of his official duties. Such a request shall however be complied with in the interests of justice if, in the judgment of the Consular Officer or employee, it is possible to do so without prejudicing the interest of the sending state. A Consular Officer is also entitled to decline to give evidence as an expert witness with regard to the laws of the sending state. 

In Mexico (Mallen Claim) v United States where Mexico alleged that the United States is responsible for illegal acts of an American Officer including an unwarranted arrest, lack of protection, and denial of justice in both trails relating to the assaults by Franco, deputy constable in United States against Consul Mallen, a Mexican national sent as Consul to U. S. A. The Mexico state made the claim on behalf of his national against U.S. A. claming damages for compensation and satisfaction in the amount of  $200, 000 with interest. The commission decided that an award may properly be made in the amount of $18, 000. 00 without interest, Nielsen, U. S. A.  Commissioner, concurred, observing in part “I think that international law undoubtedly secures to a consular officer the right to perform his functions without improper interference”

A Consul needs protection of the receiving state and must be treated with dignity and respect and his official quarters are inviolable. Treaties however have often expressly forbidden the use of consular offices as places of asylum. The Havana Convention On Consuls of 1928. Provides that; “consular are obliged to deliver, upon the simple request of local authorities, persons accused or condemned for crimes who may have sought refuge in the consulate”.


Diplomats enjoy absolute immunity from the criminal jurisdiction of the receiving state. Diplomats should not be arrested or detained as stated in Article 29.
“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”23.

In any case of mistake in the arrest of a Diplomat they are to be released immediately their identity is ascertained.

Cecil Hurst on the position of France, state that the requirement that diplomatic agents should be exempted from Criminal jurisdiction has been observed with exceptional strictness. There is no precedence in which a diplomatic agent was made subject, within his consent, to the criminal jurisdiction of the receiving state 24. Where there is serious violation of the Law by Diplomat for example, in case of murder, espionage etc, the receiving state may opt to declare the offender persona non grata, the implication is that he should leave the country and failure to do so after the declaration may cause his arraignment before a court of competent Jurisdiction. In essence, except there is a waiver of immunity, no criminal action can be taken against a Diplomat and the family members of Diplomats are entitled to the same privileges and immunity as are accorded to the Diplomats.

23.             Vienna Convention on Diplomatic relations 1961
24.             International Law, the collected paper of sir Cecil Hurst 1950 p. 217.


The Vienna Convention provides that Diplomatic Agents are immune from civil and administrative Jurisdiction25 the privileges extend to their family members. Family members of Diplomatic Agents are immune from civil and administrative Jurisdiction. They have same privileges as the Diplomat himself, however, if they are Nationals or Permanent resident of the receiving state they are not accorded such immunty26. The private servants of Diplomatic Agents are only accorded privileges and immunities only to the extent admitted by the receiving state. The state is however expected to exercise its jurisdiction in such a way and manner in which it would not interfere with the exemptions of the functions of the mission27.

(a).     Real Property - Jurisdiction immunity of Diplomats does not extend to properties owned by them and not by the mission for its purpose in their private capacity in the receiving state.28 A Diplomat who involves in action relating to succession will not enjoy immunity from jurisdiction where he is involved as a private person whether as an executor, administrator, heir or Legatee29
(b)     Initiation of proceedings   - Diplomat has Civil and administrative immunity from jurisdiction but this does not deny them of the right to have access to the courts of the receiving state as a potential plaintiff. The approach of the diplomat to court is not tantamont to a waiver of jurisdiction. It is unlikely that defendant in a suit instituted by Diplomat might want to claim immunity. This was resolved in Vienna convention. “Where a person benefiting from jurisdictional immunity initiates proceedings, such action precludes him from invoking that immunity in respect of any counter claim directly connected with the principal claim.”30
25.         Article 31
26.         Article 37(2)
27.            Article 37(4)
28.            Article 31 (1) (a)
29.         Article 31 (1) (b)
30.           Article 32 (1) (2) of Vienna Convention
When a Diplomat accepts the jurisdiction of the receiving state in initiating proceedings in court, it is total so as to include the settlement of dispute in all stages closely linked to the basic claim. This will include production of document and the tendering of evidence as far as it is necessary in the determination of the case.
(c)      Professional and Commercial activities – A Diplomat is said to be employed for that purpose alone and is not expected to take part in any action outside the course of his duties as buttressed by Vienna convention that no Diplomat may act in a professional or commercial capacity for personal profit outside his official functions31. When a diplomat engages in professional and commercial activities outside his official functions, he may be excempted from Immunity.

Consular immunity was guaranteed in Vienna Conventions on Consular Relations32a Consuls have direct link with foreign ministries with the primary duty of protecting the commercial interest of the sending state. Apart from this function, a Consul also renders assistance to Sea man of the Merchant Marine. They assist in the execution of notorial acts, the issuing of passport, the registration and solemnization of marriages.

Consuls were traditionally concerned with the functions enumerated earlier but today, consular functions have grown to cover all manner of governmental activities such as supervising treaty implementations and the implications they have in the relationship between the states where proper representation are not made in case of default.
              Articles of the Vienna Convention On Consular Relations32b spelt out the above enumerated functions.
31.    Article 31 (1) (c)
32a.     1963
32b.     1963                         
It is important to state that the Consul derives his authority from exequatur and not from his Commission. The commencement of his consular functions dates from the exequatur and not from his commission thus, recognition may become an issue if a Consul is taken to court upon issue outside his Consular functions. However, if a person is recognized as a Consul by the receiving state though no exequatur has been issued, this recognition may be conveyed to the court, which may also recognized him.

A person may act as Consul and Diplomat and perform both functions33and enjoy diplomatic immunity. Consul who does not act as a diplomat in the contemporary world may enjoy the same immunity as Diplomats where there is agreement based on the principle of reciprocity. Consuls may import articles for their personal use free from duties; they are also immune from criminal and civil jurisdiction of the act or duties.

In kasenkina case34Mrs. Kasenkina, a Soviet citizen teaching at the school in New York had been arrested by Soviet Consul and detained in Soviet Consulate office pending her return to Soviet Russia. Soviet Consul General was served with a writ of Heabeas Corpus that Mrs. Kasenkina be produced in New York Supreme Court the following day. The Service of the writ was protested; Soviet Ambassador in Washington said it is “Entirely in admissible assumption” as contained in the writ “that the Consul General of the USSR could detain and imprison a citizen of the country which he represents, is incompatible with dignity of the Soviet Consulate, the necessity for the observance of which derives from international custom and the norms of international law”.

33.         Article 3 paragraph 1: Vienna Convention on Diplomatic Relations 1961
34               Preuss in 43 AJIL (1949) 39 – 40, 44n

The following day, Mrs. Kasenkina jumped from a third – story window of the consulate in an effort to escape and avoid being returned to soviet Russia. New York police officers entered the Consulate General premises and inspected Mrs. Kasenkina’s room and the room from which she had jumped, Seizing a letter, which was later returned unopened, Soviet Government protested that New York police had “violated the extra territoriality of the building of the Consulate General of USSR in New York”. In reply, the Department of State exonerated the New York police, characterizing their action as “entirely proper”. Since the inspection had been carried out by agreement with and in the presence of Consul General Lomakin. U.S. government refused to release the woman to Soviet authorities and America authorities refrained from bringing charges of kidnapping or unlawful imprisonment against Consul General Loma kin but the president revoked his exequatur and he was asked to leave the country because his “conduct constitutes an abuse of the prerogatives of his position and a gross violation of the internationally accepted standards governing the conduct of foreign officials”.

The Soviet Union there upon notified the United States of her intention to close her consulates in New York and San Francisco and asked the United State to close her consulate in vladivostok 35.

It is well settled that a Consul has no general immunity from either the civil or criminal jurisdiction of the receiving state. The person of the consul is however inviolable and this inviolability extends to his official quarters and archives. He also has the right to free communication with nationals of the sending state.

35.         D. S. Bull, xix, No 478 (August 29, 1948) 251

Certain countries grant limited excemption from taxation and custom duties. In Engelke v Musmann 36, the appellant was sued for arrears of rent than he moved to set aside the writ on the ground that he was Consular Secretary in the German embassy and hence subject to consular immunity. The respondent replied that consular functions do not involve immunity and sought leave that the appeal was taken. On appeal, the A. G. informed the Court that he was instructed by the foreign office that the appellant was a staff of the German embassy and was recognized by the British Government without reservation. The court of appeal upheld the Judge in Chamber and then the appeal was taken to the House of Lord. The A.G. formally intervened, the House of Lord held that the executive statement was conclusive and refused to embark upon any analysis of the appellant actual status. It is clear therefore that express confirmation and pronouncement of the sending state that immunity accorded a Consul General shall extend to other officials of the Consulate, then the immunity shall therefore not be questioned. That is, executive statement is a conclusive attestation of immunity granted to a particular officer. The immunity will only hold sway while performing official duties. The essence of immunity is to allow consular officers to perform their duties judiciously.
It must be noted that in a state where the sending state has full diplomatic representatives, the consul has no direct communication with the head of state of the receiving state but can link the government through Ministry of Foreign Affairs. Where there are no full representatives. Consuls can assume the role of diplomats and communicate directly with the receiving state Head of State, if authorized by the sending state.

36.         1928 AC 433

In summary, Consuls enjoy immunity as earlier stated in these five areas.
(a)      Criminal Process: - Consuls are not liable to arrest or detention except in the case of grave crime, their exequatur can be withdrawn or put under surveillance pending the time they will leave the receiving Countries.
(b)     Inviolability of premises: - The official premises of a consul cannot be extended or broken into without the consent of the consul as in Kasenkina’s case 37 Despite the wrong step of the Consul General of soviet Russia, the New York Police officers entered the Consulate Generals room with agreement and in the presence of the Consul General.
(c)      Inviolability of person: - Consuls must be protected from attack in whatever form and their freedom and dignity must be well protected.
(d)     Civil Process: -        Due to official acts of a consul, a consul is not liable to be sued 38. A writ cannot be served on him in respect of official duties as in Engelke V Musmann39 in respect of writ served on the appelant, which was later set aside because of consular immunity.
(e)      Taxation: -   Consuls are excempted from taxation on their official income and not from taxation on income derived on property held by a consul. He is also excempted from custom duties and consular properties are usually exempted from taxation. Consular employees enjoy this excemption only in respect of articles imported at the time of first installation 40.

37.               Supra
38.                          Article 43 Vienna Convention on Consular relation 1963
39.                          Supra
40.               DPO Connell, Int Law for Students, London Steven & Son (1971) P. 372

This part of seminar paper concentrates on instances where there are apparent clashes between these two important sets of international rules i.e. diplomatic immunity law and human rights. An attempt is made to isolate the areas most affected by that collision and to ask which one, if any, is superior to the other. Theoretical consideration needs to be placed on reciprocity in diplomatic relations and this in turn suggests that purely hierarchical grading is neither practical nor desirable.
Diplomatic immunity & human rights: A brief history
Diplomatic immunity is firmly based on long history of supporting state practice. The 1961 Vienna Convention that codified existing customary diplomatic law, resolved some points of conflicting state practice and introduced other rules. As a result, diplomatic law is currently based on a well-received multilateral treaty as well as old customary law.

International human right rules offer a different story. Until the beginning of this century, international concern with human rights issues was more or less confined to warfare law and slavery. The radical shift in international attitude to human rights law largely came about as a result of the Second World War. The adoption of the Universal Declaration and series of follow-up with rights-specific multilateral treaties rapidly established the prominence of international human rights law. Hence, international human rights law is a relatively new creature created by various treaties signed mostly during the second half of this century. Today, the two sets of rules in question are soundly based on treaty law.

Conflicting elements between diplomatic immunities and human rights: prevention, punishment and remedy: A legal norm that is a part of a coercive system essentially establishes a legal duty and in its connection to the violated party, it in turn becomes a legal right. Legal norms provide for coercive acts as sanctions for violation of legal duties and legal rights. A coercive legal order principally seeks prevention of and retribution for one’s interference in the sphere of interests of the other. On this reading, international law is not essentially different from domestic legal systems. Turning to the subject matter of this seminar paper, human rights may be safeguarded by preventing their violation in the first place by adequate punishment of violators and by providing for a satisfactory remedy. 
In the human rights context, prevention primarily relates to removal of structural obstacles that are at the root of injustice. From this standpoint, identifying structural obstacles to justice is as important as dealing with violations. Since diplomatic immunity shields accredited persons against domestic jurisdiction, it practically interferes with the intended operation of the coercive legal order. The presence of immunities also entails a deficit in relation to the second function of sanctions within the coercive legal order: retribution. The idea of retribution lies at the heart of the social technique called ‘law’. Thus, one way of solving the problem in the context of human rights is to change diplomatic law so that violations will carry sufficient punishment to satisfy the principle of retribution.
Another problem arising from the operation of diplomatic immunities is that the wrongdoer cannot be coerced to pay compensation to the victim for his unlawful action. The apparent lack of that third safeguard, namely, the adequate remedy for victims of human rights violations committed by accredited persons, present a strong case for reform.
To repeat, potential collation between the two set of rules, diplomatic law and human rights is not restricted to the inability of a host state to punish the protected wrongdoer but also relates to the lack of effective prevention before the wrong is committed and to the inability of the receiving state to ensure satisfactory remedy.
           Human rights versus diplomatic immunity: Some examples of collision.
           One manifestation of the inescapable link between human rights and serious abuse of immunities is the relationship between violence and human rights in general. For example, one commentator suggested that acts of violence have in common the ‘effect of intimidation (such acts) etymologically and tautologically cause the individual to fear being in physical harm and extreme anxiety’. Looking at specific human rights principles in the light of past incidents involving alleged abuse of immunity may be indicative of the type of situations in which immunity directly clashes with basic human rights.
(i)             Right to Life
The April 1984 killing of a British Police constable and the wounding of eleven Libyan dissidents outside the Libyan Embassy in London is one example of a clash between right to life and diplomatic immunities. First, the unidentified persons who allegedly fired at the victims through the windows of the embassy could not be prosecuted and punished by the British legal system. Likewise, the alleged lawbreaker could not be forced to compensate the victims’ families. Finally, though difficult to assess, the knowledge that diplomatic immunity is available might have induced the shooter to shoot in the first place. In other words, the Libyans’ entitlement to diplomatic immunities possibly diminished the important element of deterrence. After nine days of negotiations during which their wives were reported to have made final shopping trips to London’s big departmental stores, the 30 Libyans in the embassy were escorted to the airport and boarded a Libyan airliner to Tripoli.
(ii)     Slavery
Many recent instances of diplomatic slaves have been reported where some have been forced to work interminable hours every day, seven days a week, for little or no wages, made to sleep on floors and eat table scraps and sometimes beaten or sexually abused. Their passports were withheld by their masters as insurance against escape.

In one reported case, a Bolivian servant was kept as a virtual prisoner by an Egyptian diplomat stationed in the US. She was made to work seven days a week and never received a penny. The diplomat who denied her medical treatment when she developed a severe disease causing bleeding and infections kept her passport.
In another case, a Filipino maid has accused a Jordanian diplomat and his wife of mistreating her, making her work endlessly for 50 cents an hour, locking her at their Virginia home, and hiding her passport and belongings so she would not escape.
In contrast, where diplomatic immunity is not available, justice can be done and human rights are respected. This is illustrated by the story of two women kept as slaves in the London home of a princess from the Kuwaiti royal family. One of them told the police that she was ‘whipped, kicked, beaten and starved’. The Princess then claimed diplomatic immunity to which she was not formally entitle. to. In February 1985, she was sentenced to six months in prison, suspended for two years and was ordered to pay $2, 000 in fines, cost and compensation to the maids.
(iii)    Security of the Person
The victim of the Brazilian ambassador’s son (1982) shooting in a Washington night club never fully recovered from his wounds and underwent psychiatric treatment. In another incident, the Mexican ambassador to the UN smashed the window of a car belonging to a New York City man and pointed a gun at his head because the man had parked for five minutes in a space reserved for diplomats. No charges were brought against the ambassador.
In yet another case, a visitor to Georgetown’s entertainment district attempted to stop a stranger-who was later identified as a secretary to the Italian Military Attaché – from harassing a 16-year-old girl, the stranger then attempted to run him down in a car. The police, intending to charge the man for assault with a deadly weapon, had to release him.
(iv)    Rights of the child
Article. 19 of the Convention on the Rights of the Child demands inter alia, that all appropriate measures be taken by state parties to protect children from all forms of physical and mental violence.
In one case, a 9-year-old child of an attaché of the mission of the Republic of Zimbabwe was sent to a foster home after his school officials noticed that he was badly bruised and battered. The child was reported to have been hung by the ankles and beaten, then cut down so he fell on his head. The Convention on the rights of the Child also provides that the best interests of the child shall be a primary consideration in all actions concerning children.
In a recent case, a US diplomat in London pleaded diplomatic immunity after whisking his two daughters to the US despite the English High Court ruling that granted custody of the children to his German wife. The diplomat refused to bring the girls aged 10 and 13 back to Britain. The English Appeal Court, clearly unhappy with the immunity plea stated that: it seems surprising that a country which is a signatory to the Hague convention on the wrongful removal of children and child abduction should be able to escape the ordinary operation of the convention by claiming immunity.
(v)     Conflict Resolution
The fundamental question is whether diplomatic immunities should prevail even where a violation of human rights has been established, or, on the contrary whether human right ought to be safeguarded even if it means the curtailment of diplomatic and consular immunities.

Under the traditional approach, diplomatic immunities were upheld by virtue of the long standing practice of according immunity to diplomats and representatives of states. However, the debate for upholding human rights would question the scope of diplomatic immunity. That is, in other words, immunity should cover only ‘acts performed in the exercise of official functions’. Moreover, rights protected under the constitution ought to prevail over diplomatic immunities since a constitutional rule has superior legal status when compared to treaty rules.

There will always be the need to distinguish between the infringement of fundamental human rights such as right to life, physical integrity and human rights of a different nature, but this is not a problem unique to the situation as it relates to diplomatic and consular immunity but rather, a general one which will require a necessary degree of flexibility in finding and balancing response under international and domestic law.
The occasional abuse of diplomatic immunity led some writers to propose several reforms aimed at preventing or minimizing future abuse.
Certain Acts can never be considered as part of the Diplomatic Function.
Since the underlying theory for diplomatic immunity is functional necessity, any given act for which immunity is claimed should be necessary for conducting the diplomatic function. It is further asserted that violations of human rights cannot, by any standard, be considered as a part of the diplomatic or consular function, and thus neither can be considered an official act. This idea has been clearly expressed in the British foreign affairs committee report where it was stated that it goes without saying that terrorism or other criminal activities can never be justified by reference to these diplomatic functions.

When diplomats act in fact as terrorists, they should not be considered as diplomats at all, hence must lose the benefit of those immunity that diplomats are entitled to. However, an impediment arises because the diplomatic community views immunity as a pre-condition for effective conduct of diplomacy in certain countries. Without it, they say diplomats and their families are vulnerable to all sorts of pressures in foreign countries. The argument that diplomatic immunity be according only to important missions has failed in its entirety because it would be impossible to distinguish between those diplomats who need immunity and those who don’t.
Immunity as mere Expression of Sovereignty
That argument is a straightforward one: It is an established law that sovereignty or domestic jurisdiction is no bar to the obligation imposed on every state to stand for the protection of fundamental human rights. Immunities are just an expression of such sovereignty so, it logically follows that they too cannot impede the protection of human rights.

This approach unlike the functional immunity view essentially addresses the representational theory. Even a state’s borders cannot affect its human rights obligations so why should its representatives in foreign lands be immuned? This view is however subject to criticism because firstly, it appears to underestimate the continuing strength of domestic jurisdiction. Secondly, it neglects to seriously consider the reciprocity factor. In short, this approach tends to overlook functional necessity for immunities in the general sense rather than in the act-specific sense.

                       There are several cases of flagrant breaking of local laws as against the provision of the Vienna Convention as stated herein under
1. Rape:    On the 8th and 12th of January 1981, a 26 year old media buyer for an advertising agency, and a lady simply named Carol were raped and assaulted with a knife respectively. The rapist was discovered to be Manuel Ayree, the son of the Ghanaian third attaché to the United Nations. There was nothing the police department could do but to release the boy. The state department informed the Ghanaian ambassador that Manuel should leave the country within 24 hours or else, he and his entire family will be declared persona non grata. All efforts by the Victims to claim redress was to no avail since the assailant was the son of a diplomat and therefore claimed immunity.
2. Over Speeding: -              The Zairian ambassador to France, Ramazim Baya travelling at 100km/h in a 45km/h Zone knocked down Raphael Lenoir and Ronal Leharted with his car. They later died from the injuries sustained. The ambassador apologized and explained he was speeding in order to meet up with the appointments he had with President Mobutu Sese Seko of Zaire. The angry residents were furious when they learned that Baya was protected from prosecution by diplomatic immunity. Patrick Lenoir, Raphael’s father demanded that Baya face the Charges against him and 5, 000 people demonstrated in support of his demand. Baya’s immunity was later waived at his requests41.
41.             Time Magazine December 16 1996

3. Drug Dealing: - A man in possession of two kilograms of heroine was caught on 24th of February 1985, it was given to him by a man who claimed to be a diplomat representing the Zambian mission as a third Secretary. On request the diplomatic status of the diplomat was waived by Present Kaunda of Zambia.
1.       Recall: The receiving state may request the sending state to recall a Diplomatic Agent found to have committed a crime. In the famous Umaru Diko incidence in 1984, the then High Commissioner in Britain, Major General H.  Hannaiuya was recalled on request by the British government. The Nigeria government also retaliated by requesting that the British High Commission to Nigeria be recalled for consultation42. As an indication of a country that violated international law, Countries may also recall their envoys in that particular country. For example, after Ken Saro Wiwa was hastily executed in Nigeria by Abacha Junta, several countries recalled their envoys to register their protest against the violation of international Law as regards humans right. Amongst these countries are, United State of America, South Africa, the United Kingdom, Ireland, Greece, Denmark, Italy, Belgium, Holland, Luxembourg, Spain, Norway, Australia and Canada, France, Germany.
2.       Waver of immunity   - Waiver of immunity is rarely given in international law and when the immunity of a Diplomat is waived, it is a declaration by sending state that the Diplomat is no longer immune to the Jurisdiction of the receiving state. There is provision for waiver in Vienna Convention and the waiver at all times is expected to be express. The Case of Public Prosecutor V Orhan Omez 43 indicates that waiver of immunity in civil Jurisdiction does not mean waiver of immunity from execution, the waiver of immunity from execution is given separately and it must also be express. An incidence where an American embassy staff’s husband was suspected of gross indecency with a minor, here immunity was returned to the U.S.
42.                 The Daily Times, 6 July 1984 P. 1
43.                 87 ILR P.212

3. LETTER OF PROTEST: -       The receiving state may register its protest to the sending state by seeking for redress or reparation. In United State Diplomatic and Consular Staff in Tehran Case. The United State of America in a strongly worded letter wrote a letter of protest requesting for the release of her citizens and reparation by Iran. The hostages were released in January 1981.
4. NOTIFICATION: Through the ministry of foreign affairs of the receiving state, a notice of reservation may be registered with the Sending state.
5. BREAKING DIPLOMATIC RELATIONS:            The diplomatic relation can be severed by the receiving state as a result of abuse of diplomatic privileges. An instance of this is British – Libya case. The shooting of a policewoman through the window of the Libya embassy in London led to the breaking of diplomatic ties between Libya and Britain.
6. PERSONA NON GRATA: - Where there is a breach of criminal law and crime committed by a Diplomat for example, in an act of espionage, rape and infliction of deliberate physical harm, the receiving state may declare the Diplomat persona non grata if the sending state has not waived the immunity of the Diplomat. Failure of the diplomat to leave within a stipulated time will render him liable for prosecution by the receiving state.
Legal reforms: re-negotiation of the 1961 Vienna Convention
A typical reaction to flagrant abuses of diplomatic immunity is to argue that re-negotiation of the Vienna convention seems to be most logical step to prevent future abuse. A number of reforms have been proposed and they vary from restricting the scope of immunity to carrying out an inspection of the diplomatic bag.

In this regard, some proposed amendments focus on limiting diplomatic immunity to all or some accredited persons so that it will apply only to official acts or other limited categories of conducts. The personal immunities of administrative and technical staff and perhaps those of families should be restricted. The appeal of this proposal lies in the fact that a very high percentage of crimes committed by protected persons is attributed to low ranking officials and dependants.
In the arena of problem-specific amendments, one specific proposal concerns the inviolability of the diplomatic bag. Following the Libyan embassy and Dikko’s incidents, the British considered an amendment that would provide for compulsory opening of the diplomatic bag upon request following reasonable suspicion or return of the bag to its point of origin. Indeed, the existence of weapons of mass destruction – nuclear, chemical or biological – does raise serious concern about state terrorism and possible abuse of the diplomatic bag. However, both the British government and the House of Commons committee clearly rejected the amendment as a solution due to practical difficulties.

It was thought that securing amendments to the Vienna convention in accordance with proposals of the UK and like-minded countries would be virtually impossible. Other proposed amendments include the removal of personal immunity after participation in acts of state terrorism and withdrawal of the inviolability of the diplomatic premises if used for acts of state terrorism. Like the bag search proposal and for similar reasons, all these ideas have been strongly rejected.
Unilateral domestic measures
Abuse of diplomatic immunity sometimes leads to loss of faith in the international system as a whole and calls for unilateral measures in the form of domestic legal reforms to tackle abuse. In 1987, Republican Senator, Jesse Helms proposed amendment to US domestic legislation requiring the investigation and prosecution of diplomats for serious criminal acts including ‘any crime of violence, drug trafficking, reckless and drunk driving and the altering of the definitions of the family members and diplomatic bag.

Later, a more modified proposal was introduced titled, Diplomatic Immunity Abuse Prevention Act. The bill was approved by the Senate but rejected by the House of Representatives. Another proposal called for immediate waiver of immunity & immediate expulsion of Diplomats committing serious crimes and requiring liability insurance for foreign missions. This bill passed in congress in 1998 merely requires the state department to prepare an annual list of Diplomat’s accused of committing crimes and asserting diplomatic immunity. Evidence from American and British government sources clearly opposes any significant, or indeed any domestic or international modification of the Vienna Convention.
           Prevention of abuse of immunity and violation of Human Rights
A number of mechanisms are available in order to prevent abuse of immunity and violation of human rights by accredited persons. Preventive measures can be taken through the rigorous application of the Vienna convention.
These measures include:
*         Stricter appointment notification procedures on staff of diplomatic missions
*         Limiting the size of missions
*         Scanning and weighing the diplomatic bag
*         Limiting the extent of mission premises
*         Announcement of greater readiness to declare persona non grata even in cases of serious civil claims and persistent unpaid parking tickets. In France between November 2003 and 2004, there were 2,590 cases of diplomatic cars caught speeding by automatic radars, China alone had 155 violations. In January 2006, it was reported that, in London, that diplomatic immunity had been used to avoid paying millions of pounds in traffic fines, as well as dodging around GBP1 million in local rates although, some embassies have agreed to settle their bills. Logic dictates that even the potential threat of persona non grata declaration contributes towards prevention of abuse.
*         The ultimate sanction and prevention measure available for governments is the severance of diplomatic relations. Such preventive measures do not seem incompatible with international law and may be seen as a genuine attempt to reduce the risk of abuse.
*         The doctrines of self defense and self preservation are also available to states in order to prevent human rights abuse. The main problems are that such actions are likely to be expensive, involve divergent rules and likely to be tainted with distrust on the part of the sending state as well as possible hostile attitude in the receiving state.
           Punishment for abuse of immunity and violation of human rights.
           It has been argued above that states are by no means powerless in preventing abuse of diplomatic immunity and violation of human rights. Nevertheless, violations will continue to occur as it is unreasonable to expect that the whole world-wide diplomatic population consisting of many thousands of normal human beings will remain flawless. Upon the occurrence of abuse whether or not a human right violation, receiving states have several options.
*         First, it is possible to conclude in advance, a bilateral or regional treaty providing for compulsory waiver of immunity or compulsory prosecution in the sending state.
*         The receiving state can request waiver of immunity from the sending state.
*         A third option is post-immunity prosecution that is, prosecuting the alleged offender after his assignment has been terminated.
*         Fourth, The declaration of persona non grata in itself, though not a perfect punishment for human rights violation, is not without punitive value.
*         Fifth, abuse of diplomatic immunity involving a violation of fundamental human right may be seen as an international crime suitable for trial by an international criminal tribunal. However, there are various obstacles to such a solution, including the diversity and international crimes and their various levels of reception. It may also require the amendment of the Vienna Convention to that effect.
*                     Perhaps the most promising approach for peacefully resolving disputes where none of the above mentioned mechanisms have worked (that is in cases of continuing disagreement) is amendment of the Vienna Convention to require compulsory arbitration.

Remedies for Victims of abuse of diplomatic immunity
           It has been argued that amendment of the Vienna Convention to permit civil liability is less likely to obstruct the performance of a Diplomat’s duties. It does not limit the Diplomat’s freedom of movement and would not trigger retaliation by the sending state. However, allowing civil lawsuits against protected persons might be perceived by the sending state as a ‘host-state-supported obstruction’ of Diplomats functions.
*         Special compensation fund – The idea of an international fund designed to compensate the victim of diplomatic wrongdoings is an attractive one but its administration will require much international cooperation as well as admittance of fault on the part of the sending state. Furthermore, to make payment from an international fund, some faults would have to be found by an international mediator. It is the duty of the receiving state to ensure that adequate reparations are made when her citizens are suffering the consequence of law adopted for the larger good. Some states already follow that path. For example, innocent victims of diplomatic immunities’ violations in the UK have access to criminal injuries Compensation Board.
*         Compulsory Insurance – Liability Insurance schemes can reasonably be expected to afford adequate compensation to victims. The victims can directly assert because the insurance company is liable and appears in place of the Diplomat and the immunity defense is circumvented. At the same time, there is no need for international agreement and diplomats remaining protected. Sending states might require similar insurance but that in itself, does not seem to create a serious difficulty and may even be desirable. Financial consequences for a Diplomat as a result of retaliatory measure of this kind is not equivalent to reciprocal measures risking their well-being. At bottom, establishment of compensatory mechanisms of that type constitutes a risk worth taking.

*         Arbitration – interstate arbitration has been defined by the ILC as a procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted. The idea of compulsory arbitration has been suggested by some members of the ILC during the Vienna Convention draft preparations but was not included. Apart from being impartial, and highly flexible arbitration offers a number of advantages to all states.
*         Arbitration can be effective where a large number of claims must be settled, preferably in a confidential manner. For example, where abuse of diplomatic immunity violated the human rights of numerous persons.
*         Once a compromise (arbitral agreement) has been reached, there are generally no preliminary stages but only one phase: merits.
*         Arbitration allows for appointment of specialist in the disputed field, in this case experts on diplomatic law and human rights.
*         Unlike the ICJ, private persons or corporations can be parties in international arbitration if its terms provide so. Arbitration can therefore accommodate the possible wish of victims to be directly involved in their claim.
*         Since parties to arbitration retain more control over various matters (e.g. composition of tribunal, formulation of the question to be submitted to arbitration, the law to be applied etc), it reduces the uncertainty surrounding every prospective international case.
*         Arbitration offers at least to some extent, protection against loss of face as well as the possibility of using the third party, the arbitrator as a scapegoat.
*         Arbitration is usually faster than the procedure before the ICJ.
*         Perhaps most important, arbitration gives the parties time to reflect on the dispute and its consequences. It provides some distance from enraged sometimes manipulated public opinion and therefore cools things down’.
*         Arbitral solutions can generally produce in the parties a sense of being treated fairly where a too-strict application of the law would be less practical, less pragmatic, and less persuasive.44
                       All told, no device, arbitration or other can completely guarantee satisfactory remedies for victims of human rights violations by accredited persons. But the arbitration mechanism, if adopted, may well improve their position.

Suggested recommendations and change in the Vienna Convention can be entrenched further but the question that demands answer is what happens when a crime was stage managed and well hatched to implicate an innocent Diplomat and the Diplomat was declared persona non grata as a result of the crime to get him out of the receiving state because of his integrity and volatile response to issues.

In Comparison with trite principle of criminal Law that an accused is presumed innocent until proven guilty. I suggest that government of the sending state should not be too hasty in condemning their envoy if they are not certain that the offence was actually committed by the envoy. They should have their own investigation unit in the embassy to update the crime committed. In the case of M.C. Waddington45 the son of a Chilean charge d’ affairs at Brussels, was accused of murder. His immunity was however waived by the Chilean government but he was acquitted after trial.
Postings to foreign missions are based on politics instead of qualification. Posting of envoys should be merit. When a square peg is in a round hole, it will cause embarrassment. The diplomat’s renumerations should be attractive and enough to dissuade them from engaging in criminal activities. A diplomat peddling cocaine through diplomatic bag will be making a lot of money but this will not be necessary if he is well paid.

44.         Sangeetha Mugunthan ,Diplomatic immunity in the context of International Human Rights. Legal service                  
45.         ICT Report 1980 P. 3
                       Sending State must be eager to waive immunity of Diplomat for any grave crime to act as deference to others and it is a fair way of proving the innocence of the diplomat if he has not committed the crime, the truth will be revealed during trial of the diplomat. 
                       If there is no waiver for the diplomat, then he should be made subject to the laws of the Sending state and the reason for the termination of appointment should be published and this can be incorporated in the Vienna Conventions.

Lastly, diplomats with long years of service should be given priority when there is consideration for posting of envoys and credence must be given to his integrity and honesty.

It may be concluded that two sets of international rules, human rights and diplomatic immunities, sometimes conflict. Contemporary international law does not seem to provide a clear answer as to the question of priority between them. Even if one assumes that at least theoretically, human rights law prevails, that assumption quickly runs into trouble when it encounters the very real reciprocity factor underlying the whole body of diplomatic law.

In the past, a number of radical solutions have been proposed. These proposals included introduction of amendments to the Vienna Convention and amendments to domestic laws. Such radical proposals suffer from serious defects. The abuse of functionally based immunities calls for functionally based remedies. In reality, the vast majority of accredited persons carrying out important and sometimes risky task, do not abuse their status. When they do, that abuse is almost always of minor character. States are not powerless in the face of occasional or more serious abuses.

                       Means of prevention range from firmer application of existing rules – including expulsion and severance of diplomatic relations – to the ultimate act of self-defense. The latter is rather useful for the protection of fundamental human rights in extreme cases. Similarly, states are not powerless in their attempts to punish human rights violators protected by immunities. There is some evidence pointing to a possible change of attitude towards greater readiness, on the part of sending states, to waive immunity. Other routes including post-immunity prosecution and prosecution in the sending state may also be available. Compensation of victims does not seem to be a large scale problem. All in all, no legal system is perfect and there will always be cases destined to lead to deterioration of relations between the receiving and the sending state. But even in such cases, victims need not find themselves without adequate remedy. 
Over the past twenty years, not only has there been a large increase in the total number of missions sent between different countries, there has also been a sharp rise in the number of personnel employed at all levels in individual missions. This pose the problem of protection; at times discrete surveillance may be considerable. The principle of reciprocity is one of the problems of immunity; State ‘A’ may not have the mechanism for protection and security like State ‘B’. The question is can the treatment of diplomats and consuls in receiving state be commensurate with the one extended to their counterparts in sending state?
           If it is possible in this conclusion, I suggest that the size of the mission should be fixed by mutual agreement because the protective ability of the receiving state must be within their capacity.
           In many cases, whatever action meted out to the envoy of one state by the government of a receiving state will be carried out against the envoy of the receiving state in the sending state. This inadvertently creates an unending circle.


1.       Okeke C. N.: The theory and practical of international Law in Nigeria,                     fourth Dimension Publisher (1986).
2.       The proceedings of the Vienna Conference are contained in United Nations                      Conference on Diplomatic Intercourse and Immunities, Officials record,                 Vol. 1 & 2 (1961 & 1962).
3.       Daily Times of 12th of July, 1984 Center Page.
4.       Bryan A. Garner: Black Law Dictionary (2004) 8th Edition.
5.       Michael Hardly: Modern Diplomatic Law, Manchester University Press                  (1968)
6.       Osawe Alice Amechi: A Critical Appraisal of the concept of Diplomatic                  Immunity in International Law.
7.       Harvard Research Draft Convention on the Legal Position and Functions                of Consuls 26 A.J. I. L. (1932)
8.       Diplomatic Dictionary, Vol. 1, Moscow 1960.
9.       D.P.O. Connell, International Law for student, London Stevens & Son                      (1971).
10.     Time Magazine December 16 1996
11.     Vienna Convention on Diplomatic Relation 1961
12.     Vienna Convention on Consular Relation 1963
13.          International Law, the collected paper of Sir Cecil Hurst (1950).
14.          Sangeetha Mugunthan;Diplomatic Immunity In the context of International human Rights-Legal Service   
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