Dembinski, The Modern Law of Diplomacy

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THE MODERN LAM/ OF DIPLOMACY

External missions of states and international organizations
by
Ludwik Dembinski
'a:-''1.
MARTINUS NIJHOFF PUBLISHERS L#

GROUP
ryry
DORDRECHT / BOSTON / LANCASTER
1988
a member of the KLUWER ACADEMIC PUBLISHERS

and UNITAR
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the United States and Conada: Kluwer Academic Publishers, P.O. Box 358,
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for all other countries: Kluwer Academic Publishers Group, Distribution Center,
P.O. Box 322, 3300 AH Dordrecht, The Netherlands
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Library of Congress Cataloging in Publication Data
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Dembinski, Ludwik.
The modern law of diplotnacy : Xtennal missions of states
international organ'izations / Ludr,rik Dembinsk i.

p. cm.
Includes bibl iographica I refenences.
ISBN 9024735858 (pbk.
1
Di p 1 onlacy.
JX1662.D46
and
2. Internat
i ona
agenc i es.
I. Title.
1987
341.3'3--dc19
}}E
87-16818
CIP
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rsBN 90-247-3681-1
UN Sales No. E.87.III.K.RRl34
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Copyright
@ 1988 by UNITAR.
All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system, or transmitted in any form or by any means, mechanical,
photocopying, recording, or otherwise, without the prior written permission of
the publishers,
Martinus Nijhoff Publishers,
The Netherlands.
PRINTED IN THE NETHERLANDS
Box 163, 330dAD Dordrecht,
:1"
i
Contents
J-
PARTONE
The Scope of Diplomatic Law
Chapter I. Evolution of Diplomatic Law
d,^
L. The
Origins
2. New Dimensions of Diplomacy
2.L The World-wide Extension

2.2. Multilateralism and Diversification
3. From Customary to Conventional Law
8
8
8
- Convention
- Convention
,1.
JF
on Diplomatic Relations
on Consular Relations
3.2. The New Types of Missions
- Convention on Special Missions
- Convention on Relations of States with International
Organizations
3.3. Additional Instruments
-Convention on the Protection of Diplomats
-Protocol on the Diplomatic Bag and Courrier
4. Implementation of the New Diplomatic Law
4.L. The Practice of States and International Organizations
4 .2. The International Jurisprudence
L4
15
Chapter II. The Field of Study
L7
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4
4
3.L. Diplornatic and Consular Relations
Organs of Relations Between States
9
9
9
10
L3
L3
T4
L4
L7
Z.Drersity and Unity of the Law of External Missions
18
3. Three Complementary Approaches
22
4. The Overall Plan
23
PARTTWO
The External Missions
Chapter III. External Missions as Organs of Subjects of
International Law
27
L. Common Characteristics of External Missions

Z.External Mission of States
27
29
29
29
30
2.L. The Right of Legation

2,2. International Personality
2.3. Recognition
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z.4.Different Types of Missions

2.5. The Ministry of Foreign Affairs
3. External Missions of International Organizations
3.L. Functional Legal Personality
3.2. Non-Reciprocity
3L
3L
32
32
33
3.3. Types of Missions

4. Missions of Subjects of a Special Character
4.L. Papal Nuncios
4.2. Missions of the Order of Malta
4.3. Delegations of the ICRC
35
35
36
36
Chapter IV. Permanent External Missions and Their Functions
39
L. Missions of Representation to States
39
34
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1.1. Representation
L.2.Protection
L.3. Negotiations
L.4.Information
1.5. Promoting Friendly Relations
L.6. Protection of Foreign Interests
2. Consular Missions
2.L The Nature of Consular Missions
2.2. Representation of the State and its Nationals
2.3. Administrative Functions
3. Missions to International Organizations
3.!. Missions of Member States
- Origin of Permanent Missions
- Participation in the Activities of the Organization
- Negotiations
- Protection of Interests
- Information
3.z.Observer Missions
3.3. Missions of International Organizations
VI
39
40
41
42
42
43
44
44
45
47
48
48
48
49
50
51
52
52
53
Chapter V. Temporfry External Missions

1. The ad
55
hoc diplomacy
55
57
2. Special Missions
The Diplomatic Character

z.z.Functions of Special Missions
- Bilateral Relations
- Multilateral Relations
2.3. Types of Special Missions
z.4.Spicial Miisions and Embassies
2.5. Special Missions of International Organizations
3. The Delegations
2-.L.
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57
58
58
58
59
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62
Chapter VI. SpecializedMissions
65
1. The Problem of
Taxonomy
2. Aid and Assistance Missions of States
2.L. French Missions of Co-operation
z.z.Missions of the US-AID
3. Assistance Missions of International Organizations
3 .L .The UNDP Resident Representatives
3.2. The EEC Delegates
65
66
66
67
68
68
70
Chapter VII. The Establishment of External Missions
7L
1. Agreements Concerning Missions
l.l.
Accredited to States
The Form
l.z.The
Content
72
.
1.3. Missions of International Organizaflons

2. Establishment of Missions to International Organizations
2.L The Triangular Relationship

2.2. Relations with the Host State
Multiple
Accreditations
3.
3 .L . Diplomatic Missions
3.2. Consular Posts
3.3. Special Missions
3 .4. Missions to International Organizations
4. The Alteration of an External Mission
4.L. Change in Status

4.2. Change in Structure
Chapter VIII. The Material Setting of the Mission

1. The Seat of the
External Mission
71
7L
73
74
74
75
76
76
76
78
78
79
80
80
81
83
83
VII
2. Premises and Apartments

3. Means of Transport
4. The Flag and Emblem
85
86
87
Chapter IX. Termination of an External Mission
89
Non-Conflictual Situations
L.L. Withdrawal of Diplomatic Missions
L.z.End of Temporary Missions
2. Severence of Diplomatic Relations
2.L. The Decision
2.2. Legal Consequences
2.3. Protection of Interests
3. Suspension of Diplomatic Relations
4. Th; Extinction of Orre of the Parties and the Non-Recognition
of a Governrnent
5. Fate of the External Mission During Armed Conflict
6. Consequences of the Termination of an External Mission
89
89
90
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93
95
95
96
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PARTTHREE
|H
The Staff of the External Mission
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Chapter X. The Members of the Mission
101
101
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Appointment of Members of the Mission

2. Nitionality of Members of the Mission
2.L Missions of States
3. Size of the Mission
3.1. Missions to States
3 .2. Missions to International Organizations
4. Travel Documents
4.L The Diplomatic Passport
4.2. The Laissez-passer
5. The Diplomatic Corps
5.1. The Status
5.z.The Dean
5.3. The Functions
5 .4.The Diplomatic Committee
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Chapter X[. The Head of Mission
113
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Status of the Head of Missions
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106
107
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109
109
109
110
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LL3
2. Classes and Precedence

2.L. Diplomatic Missions
2.2. Consuls
2.4. Missions to International organizations
2.5. Missions of International organizations
3. The Acting Head of Mission
4. The Head of State and Persons of High Rank
LL4
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115
r1,6
LL7
LL7
118
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Chapter XII. The Categories of the Staff of the Mission
L2t
1. The Diplomatic Staff

2. Consular Officers
3. The Non-Diplomatic Staff
4. Experts
5. Families of Members of the Mission
6. The Internal Hierarchy of the Mission
L2T
Chapter XIII. Commencement of Functions of Members of

External Missions
L23
L24
1,24
126
L26
L29
Prior Consent of the Receiving State

The Agr6ment
L.2. The Consular Exequatur
L.3. The Acceptance of Mernbers of Special Missions
Z.TheTaking Up of Functions
2.L. The Head of Mission
- Ambassadors
- Other Heads of Mission
2.2. Delegations
2.3. Members of the Mission's Staff
138
Chapter XfV. Termination of Functions of Members of

External Missions
1,4L
1. T'he
1..1-.
L. Termination of Functions by Decision of the Sending Subject

Z.Termination of Functions Resulting from a Decision of
the Receiving State (Declaration of. Persona Non Grata)
2.L. Members of Missions to States
2.2. Mernbers of Missions to International Organizations
L29
L29
L3L
L32
133
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135
L36
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L42
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IX
,JI,
PARTFOUR
Status of the External Mission and of its Staff
Chapter XV. The Interplay of Rights and Duties
153
L. The Foundations of the Diplomatic Status

Z.The Scope of the Diplomatic Status
3. The Mission and the Legal Order of the Receiving State
3.L.The Principle
3 .z.Measures of Enforcements
3.3. The Violations
153
L54
157
L57
158
159
Chapter XVI. Protection of the Mission and of its Personnel
163
L. Obligations of the Receiving State

2.Prcvention of Crimes Agairist Members of External Missions
3. Duties of the Sending State
163
L66
169
Chapter XVII. The Freedom of Communication of the Mission
173
1. General Principles
2. Correspondence
L73
175
L75
3. Telecorlmunications
4. The Diplomatic Bag and Courier
Diplomatic Bag
4.2. The Diplomatic Courier
5. Duties of Third States Concerning Communication of
the Mission
4.1.. The
L76
L77
180
181
Chapter XVIII. Principles of Implementation of Immunities

and Exemptions
183
1. Application as to Persons (ratione personae)

2.Application as to Substance (ratione materiae)
3. Application as to Place (ratione loci)
4.Application in Time (ratione temporis)
5. The Case of International Officials
183
Chapter XIX. The Inviolability
L9L
1. The Concept
191,
2.
3.
Inviolability of the External Mission

Inviolability of the Mission's Members
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Chapter XX. Immunity from f$risdiction
201
1. The Definition
2. Acts Attributable to the Sending Subject
3. Immunity trom Criminal Jurisdiction
4. Immunity from Civil Jurisdiction
5. Immunity from Measures of Execution
6. Immunity from Administrative Jurisdiction
7. Immunity from Giving Evidence
8. Waiver of Immunity
201
201
203
205
208
209
2L0
2LL
Chapter XXI. Exemptions
2L5
1. The Concept of Exemption

2.TaxExemptions
3. Exemptions from Customs Duty
2L5
2L6
21,9
4. Other Exemptions
220
Chapter XXII. The Settlement of Disputes
223
PARTFIVE
Activities of the External Mission
Chapter
XXIII. General Principles
229
1. Authority to
229
2. Non-Interference in the Internal
23L
Act on Behalf of the Mission

Affairs
3. The Area of Activity of the External Mission and the
Freedom of Movement of its Members
234
Chapter XXIV. Relations of the External Mission with

OtEcial Organs
237
1. Missions to States
2. Missions to International Organizations
237
Chapter XXV. The External Mission and Private Individuals
243
1. Nationals of the Sending State
2. Nationals of the Countw of Residence
243
245
Chapter XXVI. Diplomatic Asylum
247
I . Ffistorical Background
247
2. Diplomatic Asylum in International Law
248
249
3- Recent Practice
239
XI
Chapter
L. The
X)ilflI.
The Rules of Parliarqr-mtar.y
Definition
?.Ihe Institutional
@omacy
Framework
International Organizadons .'

International Conferences
2.3. Groups of States
3. The Normative Framework
4. The Participants
5. The Decision-Making Process
5.L. The Outcome of the Debate
5.2.The Voting Systems
New Solutions
,5,3.
2.1.. Organs of
2 .2 .
253
253
254
,254
255
256
,.257
2:59
26A
260
260
26L
263
Bibliography
27r
Table of Diplomatic Law Conventions

'
Index
XII
277
Note from theAuthor
Inorderto makethisbook
as readable as possiblewehave tried to simplify

and reduce the number and size of the footnotes.
References to the major diplomatic law instruments have been placed
immediately after the quoted text, giving its abbreviated tifle, followed by
article and paragraph numbers.
References to writings give the name of the author and the year of
publication which make it possible to find them in the bibliography at the
end of the book. This bibliography contains writings mostly published
after 1960, which are relevant to the study ofpresent-day conventional
diplomatic law, and should therefore not be considered as exhaustive.
Most footnotes concern a set of ideas rather than the specific sentence,
except for direct citations or particularly important opinions.In the case of
ideas which are now generally accepted, authors who have used them are
not necessarily quoted.
It is hoped that in.spite of the above restrictions this book provides the
reader with basic information sufficient for him to proceed with an indepth study of any chosen subject in the realm of modern diplomatic law.
xIII
List of Abbreviations
ACP
AIIL
ASDI
BYBIL
CCR
CDR
Chronique-
Atrican, Caribbean and Pacific States associated to the

EEC under the Lome Convention
American Journal of International Law
Annuaire Suisse de Droit International
British Year Book of International Law
Convention on Consular Relations
convention on Diplomatic Relations
Ch. Rousseau. Chronique des taits internationauX,
rÊL^\"^Lr'
cf.
bibliography
CPISA
Convention on Privileges and Immunities of Spe cialized,
Agencies
CPIUN
CRSIO
CSM
EEC
ICJ
LC
ILR
NYC
OAU
RCADI
RGDIP
TIAS
I-JNDP
T]NGA
TINTS
Convention on the Privileges and Immunities of the

United Nations
Convention on Relations between States and International Org aruzations of a Universal Character
Convention on Special Missions
European Economic Community
International Court of Justice
UN International Law Commission
International Law Reports
Convention on the Prevention of Crimes against InterProtected persons including Dipl6mats (New
}3ti9n1tly
York Convention)
Organi zation of African Unity
Recueil de Cours de l'Acad6mie du Droit International
Revue G6nerale de Droit International public
Treaties and Other International Acts Series, cf.
bibliography
united Nations Development programme
United Nations General Assembly
United Nations Treaty Series
XV
PARTONE
The Scope of Diplomatic Law
In its traditional meaning the term'diplomatic law'used to refer to the

nonns of international law governing the status and functions of diplomatic missions exchanged by States having established diplomatic relations. In this book the term 'diplomatic law' is used in i wider sense,.
including norms of international law relating to all q,p"r of missions
established abroad not only by states but also by other subjects of
international law. The purptse-of the first two chapters, i.e. thL introductory part of the book, is to define the scope of this new diplomatic law.
Accordingly, Chapter I looks at the roles played respectively by
tradition and innovation in the transition from the old to the new
diplomatic law. The second chapter shows how the new diplomatic law
was codified in the new international instruments, how it meets the present
needs of the international community, and what are its main characteristics; it also defines the field and the method of the present inqury.
Chapter I
Evolution of Diplomatic Law
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oRIGINS
Among professions claiming the honour of being recognized as the most

ancient in the world, that of the diplomat is certainly well placed. In fact,
from time immemorial princes and kings sent messengers to their counterparts, who usually received them with due respect, granting them a
privileged status. To refuse envoys this special treatment resulted in the
severing of communication between the partners. Moreover, trading
nations and cities not only exchanged messages, but early in their history
sought to establish in major foreign commercial centres and ports,
permanent agents who ran their business, rendered aid and protection to
their nationals and, when necessary, acted as their representatives. The
long history of diplomatic and consular missions has been presented in
many outstanding scholarly works and treaties.l This book attempts only
to show briefly, that these relations result from a fundamental need for
organized societies and for their leaders to communicate over distances
separating them.
The status and rules concerning such envoys and agents have always
reflected the organization, structures, needs and types of relations
between societies of their times. With the advent of the modern territorial
State in the L6th and 17th centuries, diplomatic and consular missions
began taking forms which, in their general outline, they have kept until
now. The more or less constanf practice of States over that period, led
many eminent jurists, from Gftntilis and Grotius to Bynkershoek and
Vattel to formulate a number df rules which gradually became norms of
the diplomatic and consular law, Some of these rules were enacted initially
as domestic laws. This was the case, for instance, with the Diplomatic
Privileges Act enacted by Queen Ann in 1708. Others were included in
Among works published since 1945 particular mention should be made of: Amiguet;
pp.ll-26; Mattingly;
Cahier (1964), pp.6, 25; Chazelle, pp.9-39; Maresca (1959),

Nicolson (1963), Pesantes Garcia, pp. 1l-96; Potiemkin; Satow.
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international treaties, especially consular ones, which date back

to the end
of the 18th century.
In the early 19th century the rules relating to the rank of diplomatic
agents were codified in the Regulations adopted by the
congress of
vienna in 1815. A constant and general practiie of Siates inthe field
of
diplomatic and consular relations also began to take shape at
that time.
]!ris. w.as parfly the resurt of the grooiirrg bureaucratzation of the
Ministries of Foreign Aftairs and of the advent of career diplomats
as
distinct from earlier envoys recruited mainly among aristocrats
and
courtiers.
- These new professional diplomatic services became one of the common
features of the modern states. They also contributed to
the shaping of the
homogeneous international society of the 19th centu.y.-wtit"
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exchange of permanent diplomatic missions was becoming generar
practice, their role in the conduct of international relations
also was
steadily increasing. simultaneously the growth of international
trade
furthered the extension of a network of consular po.tr *pyirrg
more
limited immunities than diplomatic missions.It resulted in the
doctrine of
-international
law paying more attention to questio", ,"r"ti"tto oiptomatic
and consular relations.
Nevertheless, for a.very long time rules of international law
concerning
th: status of diplomatic missions remained essentiallycustomary. nutafter
World War II, ,rrd9l the pressure of new and previously unknown
phenomena, the need for a new diplomatic law became
uppur"rt.
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2.L. The World-wide Extension
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oF DrpLoMAcy
The-lerm-'fiplomacy'has different meanings depending on whether

it is
thisiook.diplomacy,
means
'rules the institutional body of specialized organs governed by specific
and of activities entrusted 1o them wittr trre-aim of establishing,
maintaining and developing pacific relations of a state with cither
subjecls
of international law. But this term can also mean the.interaction
on th"
international scene of several national ,diplomacies,.2
The rapid quantitative growth of the international society since
the
1?f 9**!eeply affected dipromacy. Fifty states *"."."pr"r6rrted at the
1945 san Francisco conference. Now the organization, which
they have
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Plischke pp. 54ff.
chapters by Nicorson, p.41 and
established has more than 160 members. Thus, in forty years the number
of independent states has increased more than three times and has more
than doublod since 1960. Sudden expansions of the international society
have occurred before. But never in history quantitative changes on the
international scene were of such magnitude nor did they have comparable
consequences for world diplomacy.
The first of these consequences, quantitative in nature, is the proliferation of external missions, both permanent and temporary, established by
old and new stdles.3 This necessarily affected the prestige and standihg in
the public opinion of diplomats and of diplomatic missions.
The growing number of diplomatic missions results in a proportionate
increase of diplomats posted all over the world. This necessarily entailed
the democratizatton of the diplomatic career in both old and new
countries. Diplomats of this new breed may.better represent and express

more forcefully the real interests and aspirations of their countries than
their elders were ever able to do. But at the same time they may lack
qualities which used to be considered essential for the diplomatic career.
These were a broad general culture, a deep knowledge of theinternational
scene, courtesy and finesse both in simple human relations and at the
negotiating table. Equally important was the interest and curiosity necessary to learn about the country of residence agd the ability to appreciate
and respect it for its values, customs and laws.
Another new aspect of diplomacy is due to the present heterogeneity of
the international community. In the past, a diplomat in his different
postings may never have left his own cultural environment. In fact, the
international society of that time, in spite of its diversity, was united by
common history, religion, and philosophical traditions. They were the
foundations of a common culture and of similar political systems and

economic interests. Because of this convergence of values and-ideals, for a
very long time, including both World Wars, States have stricfly respected
the rules of diplomatic law, which was part of international customary law.
In the pluralistic world of today the diplomat often finds himself in a
completely new cultural, political and economic environment, where the
perception of the status and functions of diplomats and of diplomatic
missions may be completely different. Therefore, it sometimes happens
that either the behaviour of a diplomat is not what the receiving country
3 According to Plischke (Mo dern Diplommcy, p. 95) in 1975 there were all over the world
6,400 external missions of States; this constituted only 27 percent of possible missions. As a
matter of fact, if all existing States exchanged diplomatic missions and established missions
with all the 15 existing international organizations, then there would be around 27,OOO of
them.Itmayalso bementioned here that atthe end of 1.982 in Washington therewere 21,000
persons entitled to the diplomatic status.
expects of him, or that he or his diplomatic mission are not granted the
treatment and regard to which they are entitled by law and custom.
In consequence, diplomatic missions are now often faced with situations
which previously were exceptional or impossible. All kinds of incidents
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between authorities_ of the receiving or the transit state and foreign

diplomats most of the time have no serious consequences either for tle
persons or the states involved. There are, however, instances of blatant
violations of the status of diplomatic missions and of their staffs by the very
authorities of the State of residence or with their complicity. The o.".rpu:
tion of the American Embassy in Teheran in 1979 *u, or" of them.
Another new development is the rise of international terrorism, which
often is directed at diplomats. In most such cases local authorites cannot
be blamed even for having failed to protect them. The diplomat, therefore,
who for ages, even in times of war, was particularly weil-protected, now
lives a dangerous life.
The pre-sent wide gap between the levels of economic and social
development of old and new states is another important challenge for
diplomacy. Questions of economic relations, of aio and develofment
assistance are now the major issues in relations between industriatizia ano
{eveloping countries. A diplomat from an industrialized State posted to a
developing country, or vice-versa, now deals ress with politicai questions
which formerly were the substance of dipromatic relations, than with
problems of trade, aid and technical assistance. In response io this new
situation some industrialized countries have now established separate
missions of aid and assistance within their embassies. The functions and
methods of these new organs differ substantiallyfrom those of traditional
diplomacy.
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2.2. Multilateralism and Diversification
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The sheer number of independent States is the major cause of the growing
importance of multilateral diplomacy.a This new form of dipbLacy iI
exercised within the existing international organizations ano at meetings
and conferences they convoke. These meetings often result in multilateral
agreements and conventions covering a wide range of subject matters.
This.kind of activity requires new types of missions, such as permanent
missions accredited to international organizations, sd hoc siecial missions, and delegations to international organs and conferencesls
These new types of external missions of States are different from
Drl
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a_
Modern Diplomacy,chapter by Inis Claude, pp. 1ggff.

(1979) provides a wide survey of thl
and stages of the development of
""ur".
multilateral diplomacy, pp. L63-324.
s. Maresca
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traditional diplomatic missions by their organization and status, and often

also by their activities, particularly in the case of special missions.International co-operation nowadays extends to many different fields. Some of
them are highly technical, and have little in common with traditional
diplomacy. This is where most specialized agencies of the UN system and
many otherinternational organizations are active. Technicians rather than
diplomats participate in missions and delegations dealing with all these
technical questions. They therefore represent the relevant technical
ministries rather than the Ministry of Foreign Affairs. Nevertheless, they
act as representatives of their countries in their relations with other States,
however technical the issue may be. From the legal point of view,
therefore, such missions and delegations belong to the category of
diplomatic missions.
The extension of the scope of diplomatic relations also affects the
relationship between diplomatic missions and consular posts. These two
types of external missions of States have since their origin developed
independenfly from each other. Diplomats were representing sovereigns,
whereas consuls, whose official title may have varied with time and
country, were concerned with the interests of nationals and of the sending
State or city. For a,long time this remained a very important distinction, in
both theory and practice.
The recent practice of States shows, however, that the separation of
diplomatic and consular missions is becoming blurred.In thefirst place,
States direcfly involved in international trade, entrust this to official
diplomatic or economic representations, rather than to consuls. As a result
consular posts in the capital or in other Lrportant cities, distinct and
separate from the embassy, are becoming redundant. On the other hand,
consular functions concerning individuals direcfly have considerably
expanded, dueto the development of internationaltravel and migration.In
effect, more and more States entrust their diplomatic representations with
consular functions, which is allowed by both the 196L and 1963 Vienna
Conventions.
Finally, we have today a considerable number of missions of international organizations to States and to other organizations. Until now they
were never discussed jointly with missions of States. Even though their
functions differ somewhat from those of diplomatic missions both are
missions of subjects of international law dispatched to other subjects and
both enjoy, though in different degrees, 'diplomatic immunities and
privileges'.
- All
these new trends prove that the narrow limits imposed on the
concept of diplomacy by tradition and doctrine are now grving way under
the impact of new requirements of the international community. It is
interesting to see how international law has adapted to the new situation.
3. FRoM cusroMARy ro coNvENTIoNAL
LAw
In twenty years, between 1960 and 19g0, diplomatic and consular

raw,
formerly a mainly customary raw, has become the most codified branch of
international law. This is a remarkable evolution which."qrir".
a brief
survey.
3.L. Diplomatic and Consular Relations

convention on Diplomatic Relations. The constant practice
of States
concerning diplomatic relations, which goes back to tie 16th

and 17th
centuries, gave rise to a set of customary rules recognized
as law. It can
even be argued, that within internationai law these liere
the norms most
tll.ll_y_Td generally respected. The provisions of the vienna Regulations
of 18 1 5 have added to that body a few rules on the rank and precedence
of
diplomatic agents, a question which in the past was the sourte
of frequent
diplomatic incidents.
This continuous respect for and observance of rules of diplomatic
law
were the result of three main factors. These were the homogeneity
of the
international society of that time, the sanction
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effective in this dom3r1 and, finally, the widespr"ud
*o"rrianding by
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as means
communication, especially in times of crisis.
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Havanna convention on Dipromatic ag*t, *lrich was

adopted by 1'4 Latin American republics. codification"s have
also been
undertakcn by private bodies, r.r"h a, the Institute of International
Law
and the Harvard Law School.6 These early attempts led
the UN International Law commission (ILC) during its first session in
1949 toinclude
diplomatic and consular reiations andimmunities among the
l,4subjects
to be codified as a matter of priority.
The commission began its work on this problem tnrgs4,after
the uN
GeneralAssembly had called for it in 195) (res.6g5/ul) io pro.""o
u.
soon as it would deem opportune with the codification
oi the subject of
'diplomatic relations and immunities'. In 1 95 g after fo.r, y"ui. of
*ork, the
ILC submitted to the Generar Assembly a final draft of articles
on this
subject. when it was discussed by the otrr co--ittee of
the Assembly,
some delegates expressed doubts as to the need of such
a codification.
They feared, that in this fierd ruled by custom, strict conventi;;;r;;;;
would result in limiting privileges and immunities of diplomatic
agents.
6 For more details
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growing intensity of international relations between

the two world
suyg_".wimpetus to attempts to codify diplomaticla;. Thi, resulted
in the 1928
IJ
of
see Cahie
r (1964),pp. 33 tr
After_overcoming these doubts, the question was raised

whether the final
text should be adopted by the General Assembly o,
ue ,,ru*itted to a
specially convened conference. The ratter propo.ul was
tirJty accepted
by resolution 1450
QilD.?
The conference met in vienna from March 2nd to April

14th Lg6L,
with 81 states attending. After five weeks of work trre oel'egates
adopted
the final tbxt of the convent{o1 on Diplomatic n"rutio"r"lcDR).
The
convention consists of 53 articles and is accompanied by
two optional
Protocols, respectively- on the acquisition of nationali
v *o on the
obligatory settlement of disputes.s The Final Act of the
ctG.ence was
signed on,aqril tSth 196r. and the convention was
open for signature
until March 3Lst 1962 and then to access by member, ft
trr" uN and of
the Specialized Agencies. The convention and the optional protocors
came into force in Ap{ 1.964. Atpresent about 150
States u." pu.ty to trr"
convention,40 to the protoc-or on the acquisition ot"utio"ait|
and 5g to
the one on the settlement of disputes.
convention on consular Rerations. The history of the

convention on
Relations (Cgg and the procedure fottoweA,weie very
much
9:1^ll
tne same. 'Ihe work of the ILC on the subject started in
1955 with the
appointment of Mr. z",urek as speciar rapporteur. The final
draft of the
was put before the General Assembry in 196 1. By
resolution
99ryT1":
1685 (xvD the Assembly approved the propoied text
and decided to
convoke a diplomatic conference for its adoption in the beginning
of 1963.
Representatives of 95 countries met in the Austrian
trom vtarch
4th to April ZZndand on the lgth of that month aaopteo
"upita
the final text of
the convention on consular Relations (ccR) ur #"u
;
;; optional
Protocols identical with those attached to a" inR.,
at pi."* the ccR
is in force between 1L7 states, of which more than +o
ire parties to the
Protocol on the setflement of disputes.
3.2.
The New Types
of Missions
Coyryntign on special Missions. The two vienna conventions

consist
mainly of a codification of existing customary law, even if
on some specific
points new solutions were adopted.It soon appeared, however,
that, if real
'
l:^ru
pp.41
ff.
work of thc Intematiorul Law commisslon, united Nations, New york,

1 9g0,
8 United Nations
Conference on Diplomatia Intercourse and Immunities,

Official
Documents, 2 vols. A/conf.z0/t4, quot"o rurrrr"r u, conf.
on
D.R.
e United Nations Conference on
Consular Relation, Official Documents, 2 vols.,
A/conf.25/r6, further quoted as conf. on c.R.
f,,*-
needs of the international community were to be met, more innovation

was required. This became evident when at the 1961 vienna conference
the question of special missions came under discussion.
when thedraft of the cDRwas compreted, theILC cameto realizethat
diplomatic relations consisted not only of exchanging pennanent missions
-or
but involved also the sending of special emissaries
of missions with
limited objectives, known as'ad hoc diplomacy'. upon this, the commission requested the special rapporteur to study this question. After his
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report had been submitted in 1960, the ILC adopted a draft of three
articles on special missions to be included in the ionvention on Diplomatic Relations. The General Assembly approved these additional artiiles
and referred them to the future conference stressing that they had
resulted from only a preliminary study.10
The vienna conference, following the proposal of a subcommittee
appointed to that effect, adopted a resolution calling on the uN General
Assembly to refer the question of specialmissions to the ILC, requestingit
to draft a new instrument exclusively devoted to them.11
As special rapporteur of the ILC, Mr. Bartos was asked to prepare the
_
draft of articles on this subject. They were to be based on the piovisions of
the c-DR, keeping in mind, however, that special missions, by their nature
and their functions, were distinct from permanent diplomatic missions.
After several years of work by the ILC and successive debates in the 6th
committee, the final draft of 50 articles was submitted to the UN General
Assembly n L967 ,which put it on the agenda of its x)ovth session. The
Gengral Assembly's resolurion 2530 (X)Cu of December gth 1969
carries as an annex the text of the convention on Special Missions (csM)
ogens it for signature and ratification or accession. By the end of 19g6
3nd
it was in force between 29 States.
convention on Relations of states with International organizatio^.
rt"
drafting of the convention on the Representation oi States in their

Relations with International organizationi (cRSIo) followed a somewhat
different course. First of all, international tarlv in ttris neld began to develop
only since the creation of the League of Nations. It washerefore not
possible for the ILC to simply codify existing law. Secondly, relations
between States and international organizations have a triangularstructure,
involving the host state, the international organizatior, *1 the member
State. This complex situation required that mutual rights and duties
of the
parties involved be defined with precision.
,shortly after the United Nations had been set up, several instruments
relevant to this question came into force. They were, on tt e one hand,
the
to The Workof the ILC,pp.63tr

rr conf. on D.R., vol. rI, p. 45 (A/corrt.20/c.r/L.35)and
10
p. g9
(A/corf.20/L0/Add.1).
headquarters agreements concluded between the Organization and the

Specialized Agencies with their respective host States, and on the other,
the Conventions on the privileges and immunities of the same organizations.l2 AII of them contained some provisions on the status of representatives of member States in the territories of other members.
These provi,sions, however, were not identical. When in 1958 the draft
of the CDR was discussed by the UN General Assembly it was rightly
pointed out that this was an unsatisfactory situation.In the Assemb$t Otir
Committee the delegate of France pointed out that with the development
of international organizations, legal problems concerning their relations
with States were growing in number and complexity. As a result, solutions
provided for by the earlier conventions on privileges and immunities of
these organizations were no more adequate. He proposed therefore that
the II C be requested to start working on that question.l3 The General
Assembly having so decided, the ILC put this subject on its agenda and
appointed Mr. A. El-Erian as special rapporteur. After discussinghis first
report, the Commission agreed that the main problem consisted in

applylng diplomatic law to relations between States and international
organizations. It was decided also that questions to be dealt with within
this context were: the status of permanent missions of States to international organizations, and of delegations to meetings of their organs and
to conferences, and finally, of observer missions.la
This set of problems proved to be of so wide-ranging a nature that only
L971. did the Commission present its final report to the General
Assembly, which two years latei decided to submit it to a special diplomatic conference to be convened in Vienna early in L97 5.
The Conference, which met from February 4th to March L4th 1,975,
was the third devoted to codifying law relating to external missions of
States. The prevailing atmosphere was completely different from that of
the two previous ones.As at the l.g6L Vienna Conference, 81 states were
represented. This was much less than at the 1"963 one, although the
number of independent States had considerably increased during the
decade. It was a clear indication of an obvious lack of interest, due to the
weariness of too many codification conferences and to a corlmon feeling
that existing conventions made the new draft redundant.In addition, the
1975 Conference was plagued by tensions and a spirit of confrontation.ls
12
Also to be mentioned here is the UN General Assembly resolution 2683 QO(V)

providing for the setting up of the UNDP; similarly article22S of t}lLeLom6 Convention trI
conceming EEC delegates to the ACP countries.
t3
See The Work of the ILC, p. 67.

ra On the elaboration of the 1975 Vienna Convention (CRSIO) see Maresca
(lg7g),
pp.349-358.
15 On this question cf. Fennesy
(1976).
LI
The most controversial question was the extent of privileges and

immunities to be granted to members of permanent missions and-delegations. on the one hand host States of international organizations, sup-
industrialized countries, defended the principle -of

functionality, requiring that privileges and immunities correspond to the
real needs of functions exercised and not to be simply an extripolation of
those granted to diplomatic missions. They rightly argu"a that the
principle of functionality was clearly stated in theUN chartir and in other
relevant instruments. The majority of participants, on the otherhand, held
the view that the status of missions to international organizations and of
their staff should at the very least be equal to that of regular diplomatic
ported
by all
missions.
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Although most of the new convention's 92 arttcres were not disputed,

the fact that on a few controversial points the majority of participants
imposed solutions unacceptable to the host States, resulted inlts final text
being adopted by 57 votes to one (Belgium) with 15 abstentions, including
all host States. This outcome is ominous for the future of the convention
on the Representation of States in their Relations with International
organizations (cRSIo). Because relatively few States took part in the
conference, those who voted for its adoption represented less than a third
of the international community. Even more important is the fact that all
host States, by abstaining from voting and not sigmng the convention,
clearly indicated that they did not intend to become parties to the named
convention. This alone puts in jeopardy the practical impact of the
convention. Even if it were to come into force after receiving the 35
required ratifications, its non-ratificationby thehost States would makeits
application impossible.
The convention remains, nevertheless, an important document.l6
Except for the few controversial provisions regarding the scope of certain
immunities of members of permanent missions and delegations, it codifies
both rules of international law scattered over several international instruments and the relevant practice of States in their relations with international organizations. one can expect that even without becoming
binding in law, the cRSIo will be useful in solving problems arising in
relations of states with international organizations and in this way
contribute to establish a coherent practice in this field.17
ln L977 the ILC began work on a subject entitled 'relations between
states and international organizations (sectnd part)'. rnl963,already, the
commission decided that after the questioni of'the. representation of
16 Maresca
(1 97 9),
I
p. 359-37 l.
7 On the question of the legal sigrificance
of non-ratified conventions,
66).
12
see Baxter
(1965/
it would take up problems of the legal status, capacity, immunities

and exemptions of international organizations and their officials. This
necessarily also covers problems of the status of the external missions of
these organizations.In 1985, at its 35th session, the ILC had before it the
second report and draft articles on this subject but for lack of time was
unable to discuss it.r8
States
3.3. Additiorul Instruments

Convention on the Protection of Diplomafs. The codification of diplomatic law progressed further when it was decided to supplement existing
conventions with additional instruments: one on the protection of diplomatic agents and another on the status of the diplomatic bag and the
diplomatic courier.
ln 1,971, impressed by a wave of terrorist acts against diplomats, the
representative of The Netherlands suggested to the President of the LIN
Security Council that action should be taken to remedy that situation. His
proposal was transmitted to the ILC, which decided to put on the agenda
of. its 1.972 session the question of the protection of the inviolability of
diplomatic agents and of other persons entitled to special protection
according to international law and to prepare draft articles on this
subject.le Facedwiththeurgency of theproblem, theILC decided to speed
up the normal procedure. It immediately appointed a working group
which during the same session presented a draft of 12 articles.
This draft was discussed, revised and finally approved by the ILC and
immediately submitted to the General Assembly's 6th Committee where it
was generally well-received. Some delegates, however, expressed doubts
as to its usefulness. They pointed out that the duty of special protection of
diplomats and assimilated persons was well-established in the existing
conventions which, if properly implemented by States, would be largd
sufficient to stop the spread of terrorism.2o
After the draft had been somewhat modified by the ILC, the General
Assembly discarded these objections and adopted the Convention on the
Prevention and Repression of Offences against Internationally Protected
Persons Including Diplomats (called further New York Convention NYC). Its text is attached to resolution 31.66 (XXVII) of December 14th
1973.T)ne Convention came into force in 1,977 and at present about 70
States are parties to it.
i'
ILC, Report on the 37th session, A,/40l10 ,par.267.

re ILC, Yearbook,l972,vol. U, p. 309.
20 Bloomfield and Fitzgerald,p.4S; The Work of the ILC,p.7l.
13
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Protocol on the Diplomatic Bag and Courier.The last item pertaining to

diplomatic law still on the ILC's agenda is a protocol on the status of the
diplomatic bag and the diplomatic courier.In 1.977 the General Assembly
expressed concern about'persistent violations of rules of diplomatic law
concerning in particular the status of the diplomatic courier and of the
diplomatic bag not accompanied by a courier'and requested the ILC to
take up this subject (res.3L/76). In 1.986, the ILC provisionally adopted
the set of articles on this subject.
Certainly this protocol will soon be added to the conventional diplomatic law. But this will not be achieved without some opposition. When
Mr. Yankov's second report was discussed in the General Assembly's 6th
Committee, some delegates thought that simply existing conventional
rules should be reaffirmed, as they were rather well-respected, except,
maybe, for some instances of abuse of the diplomatic bag.21 This opinion
was nottotally groundless, asinfactMr. Yakov's draftwas adding onlyfew
new elements to the already codified diplomatic law.
The codification of diplomatic law is an important achievement of the
ILC. The body of this law will soon be composed of six main international
instruments, plus optional protocols attached to some of them, with more
than three hundred articles. But undoubtedly, by omitting many existing
redundancies this impressive work of codification would have gained in
clarity and precision.
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4.L.
IMpr,eIvIrNTATIoN oF THE NEw DTpLoMATIc LAw
The Practice of States and Intemational Organizations
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The transformation of customary law into conventional law has necessarily had direct consequences for its implementation. Under customary
law the practice of States, including their internal laws, the jurisprudence
of their courts and their inter,national behaviour, has a dialectical character. On the one hand, it should conform to norms of international law.
On the other, it is one of the constituent elements of that law and can also
serve as proof of the existence and the content of a specffic norm of
international law. Under conventional international law, on the contrary,
the practice of States can only be regarded as either the implementation or
the violation of existing rules.
This applies also to the codification of diplomatic law. Parts of that law
relating to immunities and exemptions can be implemented only by way of
national legislation. ff such internal rules are absent or are contrary to
2t lLC, Yearbook,l.981, vol. ll, NCN.4/L.33}.
l4
international law, then diplomatic law is not implemented. Under customary law, on the contrary, such a case can mean two different things.In the
first place it can be considered as a violation of international law; it may
moreover be construed as showing the absence of an international norm
because without the practice by states the customary rule of law does not
exist. This is why in the past repertories of national legislation were
necessary to establish the actual content of diplomaticlaw.2z
Since diplomatic law has been codified such repertories serve solely to
determine whetherthe national legislation of a given Stateis in conrormity
with its international obligations. If it is not, then the international
responsibility of,the State concerned is involved. The same applies to the
practice of States as expressed by the jurisprudence of their courts.23 Since
international lawhas been codified thepractice of Statesis anindicationof
its practical impact and shows the interpretations which are given to its
nonns.
The recent practice of international organizations has been extensively
used by the ILC in its work on the draft of the cRSIo.2a one has to be
reminded that at the L975 vienna conference the major disagreements
concerned precisely the points upon which the commission's draft
showed the greatest divergence from that practice.
4.2.
The International lurisprudence
The role of international jurisprudence is important, whether it relates to
customary or to conventional law. But a decision of an international

tribunal concerning a particular customary norrn ceases to be relevant
when that norm is replaced by a conventional one. If such be the case only
jurisprudence concerning that new nonn has to be considered.
The International court of Justice
flcf has heard two cases concerning
diplomatic law. The first one dates back to 1950. It concerned th;
Peruvian political leader, Haya de la Torre who, during a military coup
was granted exterritorial asylumn in the colombian embassy in Lima.2i
The three consecufive judgments of the court in this case are only of
22 This was the

case, for instance, with the publication en trtled UN Legislntive Series:laws
regulations conceming diplomatic privileges and immunities, New iork, 195g.
23 Wilson (1967) provides
a complete survey of the intemal jurisprudence of States for
and-
theperiod 1946-L960.
2a Its wide-ranging
survey can be found in a document entitled The practice of the UN, the
specialked agencics and the IAEA conceming their status, privileges and immunitiis: a study
prepared by the secreariat (A/qN.4/L.118), published in
pp.154-324.
case of the right of asylum

-'i-ft"
1950
and 1951.
- Haya de la Torre
ILC, yearbook, 1967, vol-lr,
(columbia v. peru),
lcl,
Reports,
15
relative interest. on the one hand the case

itserf was strongly influenced by
its specific and rimited Latin-American
context, whilst on the other hand
diplomatic asyrum, as will be seen later in trri.
uoor., i,
rl."grized by
conventional diplomatic law.
""r
The second case directly concerns some
of the most essentiar
of the vienna conventions on Dipromatic and consurar provisions
Rerations. It
concerns the occupation of the American emuassy
in ieho* and its staff
being taken hostage.26
on the 4th November L979 during a mass demonstration

of several
thousands of peoplg
ero"n i"vaded the premises of the united
States embassy in Teheran. wittio-u few
hours fi;;;G;ccupied
y *."g
a[
buildings of the embassy without the Iranian
.".riif,, or'police forces
trylng to interfere. During the attack the diplomatic
and consurar staff and
other Americans present were taken hostage
and detained in the embassy.
After attempts at negotiations had taibi
tatL-"v-C"r".a chrk was
- not permitted to enter Iran) and.an
appeal oitrr" ur.is";"rtr, council to
release the-hostages had been ignored
(SC res. +SZfrfr.Uri;J'#;;
submitted the case to the worrJcourt ano
requestet iiiJecioe upo,
interim protection measures. on Decemb",
rsir, oitr,;;;. the court
unanimousry rured thal3s.a provisionar protection
-*rrri" the premises
shoutd be evacuat"o'i-."JiutJy-;;-;.
iostages
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Iran, which - Iike the united states is party

to the cDR and its
optional Protocor on thepacific settlement o{disputes,
didnoisuumit any
- formal written document nor did it in any other manner participate
in the
c::T proceeedings.Its only action was a telegraphi" r"tioio
December
which did not question thelurisdiction of
the ci"rt urtirr"
rr'vsu.r
theAmerican claim.27
"o*issibirityof
- In..its judgment oj May 24th Lgg}
the court estabrished without
possible doubt, the internationar responsibility
rr*
from a
flagrant violation of its internationar obligations "t
"""rirg
based on
the 1961 and
1963 vienna conventions. Furthermor",
th" court
aL.rJJ
the Iranian governmenl was obriged t" i..o"oiut"ry
""*i-."rrvrerease
.that
a[
hostages and hand over premis"r, prop"iy
and archives of the American
embassy to the Protecting power. i" tirir
book we wiu trequently refer to
this important
case.2s
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26
Case conceming United states diplomatic

and consular staffin Teheran (united states
of-America v. Iran), ICJ, Reports, tglg ana 19g0.
19, Reports, t979, p. t0; Zoler, p. 981.
zE The
competence of the ICJ tu*
i*portant aspect of the case but it is beyond the
scope of this book. It has been anarysed tho.rih,
by many others, such as Bretton, coussirat_
"-coustEre, FaIIg Rdling Zorer, whose writing"s
io ou,6ru,.g."pir.
::
"rJriri"a
t6
Chapter II
Field of Study
After this brief survey on the new aspects of diplomacy and the corresponding international instruments, we shall define the scope and method
of the present study.
1. onceNs oF RELATToNS
BBTwEEN srATEs
Any institution faced with a new situation usually has two options. First it
canaccept otherfunctions imposed by thenew circumstances at the risk of
losing its own identity. secondly it can try to preserve its identity by risking
marginalization in the new environment. For the past few decades thii
seems tohavebeen thedilemma of diplomacy as defined earlier (chapterl,
2.1).
E m: past, foreign ministries have always had an exclusive responsibility for the nature of external relations. As a result of their worldwide
scope, multilateralizatron and diversification of relations between States,
foreign ministries in many countries today control but a small proportion
of them. The question thus arises whether the term diplomacy refers only
to the external relations of a State controlled by its ForeignMinistry oi
whether it applies to all its external relations and missionsime diffeient
types of relations and of the corresponding activities of external missions
have their own specific purpose and content. Apart from these differences,
external missions of states have two common features. Firstly, all of them
are organs of communication of one State with other States and secondly,
they are located outside its borders.l
These different missions taken as a whole fonn aworldwide communicationnetwork, withmajor centres located inafew of themostimportant state
capitals and seats of international organizations. This network is supplemented by missions established by international organizations like, for
Julliard, p. 207, refers here to 'the prime interest of the community of States which is
to
guarantee the security of the channels o] communications'.
L7
*ril
instance, resident representatives of the UNDp or delegates of the EEC

in
States who are parties to the Lom6 Convention
This new situation poses questions about terminology and substance.
Thery colcgrn the criteria and terms which would eithlr help to make
precise distinctions between those different kinds of missions in order to

study them separately, or - on the contrary - to include all of them in one
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llgl" category to be studied jointly. The use of the traditional term

'diplomatic mission'not only does not help to solve the problem, it even
complicates it. Because of its historical connotations this term cannot be
lpnlied to all the missions in question; nor is it sufficiently precise to
designate one clear-cut category.
In order to avoid these dfficulties it seems preferable to use the term
'external mission'instead of 'diplomatic mission,. External mission covers
3ll types of representations sint or established abroad by subjects of
internationallaw. Eventhough it may lack conciseness and eleganie, it has
the advantage of corresponding better to the scope of this 6ook which
attempts for the first time to study as a whole att typer of missions ."r, uj
States and international organizations. In the nexf chapter we witt try to
define this term more precisely.
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2. orvrnsrry
AND uNITy oF THE LAw oF EXTERNAL MIssIoNs
By tradition, diplomatic law is understood to be the set of rules of

international law governing diplomatic relations between states. It is also
considered to be separate from consular law and the law of international
organizations governing their external missions.
The new dimensions of diplomacy have necessarily influenced the
concept of diplomatic law which c.ulno longer remain restricted to its
former limitations. It must now be replaced by a broader set of rules of
international law relating to missions sLnt out oi establish"o uv *u:rii, .i
international law, both States and international organizatiorr. Th, coherence of this new set of rules results from a numbei of important elements
common to the relevant international instruments containing them.
The main corlmon feature of this set of rules consists in tleir object. It
resolves the basic contradiction between, on the one hand, the personal
jurisdiction of the subject sending the rnission and, on ihe
other, the
territorial jurisdiction of the state receiving it, in order to enable the
mission to accomplish its tasks in the mosifavourable conditions. The
instruments in question, therefore, estabrish with precision the rights
anJ
duties of the parties concerned. In this they follow closely the cuitomary
norms of diplomatic law as first codified by the 1961 vienna convention.
They also use a corlmon terminology, such as diplomatic staff, admil;;
18
tive staff, diplomatic bag and courier, diplomatic status, diplomatic

privileges and immunities etc. These are important arguments in favour of
extending the scope of traditional diplomatic law, so as to include even
certain provisions of consular law, which applies different terms to similar
situations and institutions.
This new diplomatic law, which is a set of legal norms concerning
:.
external missions of subjects of international law, is necessarily part of that

law. But it constitutes an autonomous and self-sufficient part.Its aim is to
establish and protect thelines of communicationbetweenmembers of the
international community. Particularly important is its task to protect this
communication ni:rwork from interference which might result from

international tensions or disputes not affecting them directly. It is a fact
that today, more often than in the past, Stites break off diplomatic
relations as an instrument of foreign policy. But these sporadic break-offs
of bilateral lines of communication do not seriously affect the functioning
of the network as a whole.
The case of the occupation of the American embassy in Teheran in :
1.979 is a good illustration of the autonomy of diplomatic law with respect /
to general international law.In response to theAmerican application,Iran,
in a letter addressed to the ICJ, requested the possibility of restricting
proceedings solely to the question of the occupation of the embassy. It
addressed itself in the following terms:
rqor this question represents only a marginal and secondary aspect of an
overallproblem, one suchthat it cannot be studied separatelyandwhich
involves, inter alia,more than 25 years of continual interference by the
United States in the internal affairs of Iran. (. . ) Thir dossier includes,
inter alia,all the crimes perpetrated in Iranbyihe American Golernment, in particular the coup d'Etat of 1953 (..) *d all the social,
economic, cultural and political consequences of direct interventions in
our internal affairs, as well as grave, flagrant and continuous violations
of all internal norms, committed by the United States.2
In addition to this document some Iranian officials were justifying the

continuing occupation of the embassy and the detention of its staff by
accusing the United States of having used it to perpetrate acts of espionage
and interference in Iran's internal affairs.3
In this way Iran was trying directly to link the provisions of diplomatic
law and their violations to other norms of general international law.In no
lCJ,Reporrs, 1979,p.
3 lbi.d.,1980,p.38.
lL.
L9
unce(ain terms the corrt rejected this approach by declaring in its order
concerning provisional measures of December 15 L979 that,
the seizure of the United States Embassy and consulates and the
detention of the internationally protected persons as hostages, cannot,
as something .secondary, or
in the view of the Court, be regarded

'marginal'.a
In its judgment of May 24th L980 the Court completed this argument by
saying:
The rules of diplomatic law, in short, constitute a self-contained regime

which, on the one hand, lays down the receiving State's obligations
regarding the facilities, privileges and immunities to be accorded to
diplomatic missions, and on the other, foresees their possible abuse by
members of the mission and specifies the means at the disposal of the
receiving State to counter any such abuse. These means are, by their
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Even though in this particular case the court's opinion refers excrusively
to the 1961 and L963 vienna conventions it is certainly applicable to all
the other instruments relating to external missions of States and of
international organizations.
As to the place of diplomatic law in the framework of international law,
the court considered
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there is no more fundamental prerequisite for the conduct of relations

between States than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and. cultures
have observed reciprocal obligations for that purpose; and whereas the
obligations thus assumed, notably those for assuring the personal safety
of diplomats and their freedom from prosecuti6n, are essential, unqualified, and inherent in their repreientative character and their
diplomatic function.7
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And the Court continued by saying:

4lbid.,1979,p.L5.
s lbid., t eeO, p. 4; Zoller
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underlines this aspect, p. 1 108.
6 See on this question Bretton, p. 820; Coussirat-CoustEre, p .22L;Zoller, p.

L024.
7 lCJ, Repore, 1979, p. L9.
ilt
ct
it very important.6 In its ruling on provisional
measures the Court declared that
20
while no state is under any obligation to maintain diplomatic or

consular relations with anotir"r, yit it cannot fail to recognize the
imperative obligations inherent therein, now codified in the vienna
conventions of 1961 ar,d 1963, to which both Iran and the united
States are parties.s
By using the terms'fundamental prerequisite' and'imperative obligation,

the court just stopped short of the expression 'imperative no=nn of
international law' of article 53 of the convention on thi Law of rreaties,
which introduced the controversial concept of jus cogens into modern
positive international law. This is an important nuance, especially as in its
judgement of 24th May 1980 the court mentioned onry'the cardinal
importance for the maintenance of good relations between states, of the
two vienna conventions; it also qualified the inviolability of diplomats
and embassies as simply a'fundamental prerequisite'.e The court underlined finally'the imperative character of the legal obligations incumbent
upon the Iranian Government which is not altered by a state of diplomatic
tension between the two countries'.r0
Thus, the wording used by the court strongly emphasizes the fundamental importance of these norms in the present international law. Judge
Lachs stressed also this point in his separate opinion by stating:
I consider (the present Judgment) to constitute not only a decision of the
instant case but animportant confirmation of a body of lawwhichis one
of the main pillars of the international community. This body of law has
been specifically enshrined in the vienna conventionr of tgot *o

1963 (.. ). It is th-us clear that these conventions reflect the law as
approved by all regrons of the globe, and by peoples belonging to both
North and South, East and west alike. The laws in question ire common
property of the international community and wele confirmed in the
interest of all.rl
After explaining the scope of the present study and pointing out its main
features some indications on the method to be used ire row necessary.
8 lbid. , p.20.
e lbid., 1980, p.42.
1o lbid. p. 41.
,
11 lbid., p. 48; on
L.
the relevant Islamic tradition, see Bassiouni.
3.
TITRBE coMpLEMENTARy AppRoAcHBs
we are thus perrritted to draw the conclusion that the system of external
missions and nonns governing it can be considered as a single object of
study. This will enable us to analyse problems concerning a[ types of
missions and the relevant norrrs in force instead of loot<ing ai ttre oifferent
types of missions one by one.
This will be done by applyrng the functional approach.It means that the
problems of external missionq have to be studied in ttre tigtrt of the specific
tasks and functions which they are to perform. firis approach is-aurpry
justified by the principle explicifly stated in the preambles of all convintions pertainingto diplomgtic law; according to which
the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of functions of diplomatic missions as representating States.
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In order to present and explain the law applicable to all types of external
missions of members of the international community, it is necessary to
make a synthesis of elements considered until now as separate. They are to
be found in works coverlng a wide range of subjects, such as dipiomatic
law, consular law, international organizations, technical assistance, multilateral negotiations etc. But first of all some clear limits have to be set to
that investigation.
rhe time-timit is set by the 1961 vienna conference on Diplomatic

*ritten diplomatic law. In the following quarter century this new conventionallaw
Relations which is the watershed between customary and
became so independent from its customary origins that
it does not seem
to go back to earlier writings and documents, except when
,q
essential
;{
strictly necessary. Certainly, the study of history is always enriching. But

as the present is the main concern of this book, history is used only when
it helps to understand that present better. The history of diplomacy and
of dipfgmatic law, interesting as it might be, is as such off limits in this
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study.l2
TIie beginning of the l.960s marks also the transition of the international
society from cultural homogeneity to an amazing cultural diversity. In this
multicultural world of the post-colonial period the needs and behaviour of
the majority of States can hardly be explained by reference to norms,

practices and doctrines prevailing in the old international society,
12 For bibliographical indications on the history

of diplomatic law, see above chapter I,
note 1.
22
emerged from the Peace of westphalia and later on shaped by

the
Congress of Vienna.l3
The synthetic approach also limits to a minimum references to the
travaw prdparatoires of the diplomatic law conventions for the following
reasons. First, reference to them is really necessary only when
thE
interpretation of the text is ambiguous or unclear *d leaos to a result
which is manifesfly absurd or unreasonabre.ra Secondly, preparatory
work
mainly on earlier law and practice which, *-irr"luoy said, is of
flimited
!*"4interest
here, Finally, as the travaux, pr1paratoires have atready
been widely used in-the_writings quoted, there is no need to duplicatl
research undertaken by their respective authors.
Direct references are therefore rimited to writings published after 196L.
An additional reason is that this book is futueloriented and does not
pretend to be the final treatise on the subject, which would require
much
more space.
4.
rp.n ovERALL pLAN
This book has five parts. The first was introductory. The next one deals
with exernal missions.as grgans of subjects of international law (chapter
Itr) performing speg::::::::::::::::i!c functions (chapters IV to VD. It furthermore
discusses their establishment and theirtransformation, theirmaterialbasis
anqtherl closure (chapters VII to DC).
The third part of the book is devoted to the staff of external missions.
After dis.cussing some general problems (chapter X) it studies the head of
the mission and other categories of its itatrlcnapers X[ and Kr) and
moves finally to problems related to the initiation and the conclusion of
their functions (chapters )(Itr and XIV).
Part Four looks at the status of the mission and of its staff in the country
of residence. This status is based on an equilibrium of mutual rights and
duties of the mission and of the receiving state (chapter xv) and includes
the right to protection and to the liberty of communication (chapters XVI
and XVII). The next step concerns the best known aspeciof that status
namely diplomatic immunities which are ruled by specific provisions
(chapter xvIII) and which comprise the immunity fronr- coercion
"
fr"-r_" complex problems are discussed in the excellent book of AdaBozeman, The
Future
of Law ina Multicultural world,pinceton, princeton University press,l97l,299p.
ra Article32oftheViennaConventionontheLawofTreaties.Itmaybeadd"dth",oft"n
frequent references to the travaux prdparatoires are nothing but exercises in erudition
no utility for the reader.
with
23
-:n
(inviohbitity), itrunrpitr tm,iwissctim,es u&ll.88. exeNnpticns fron
)Otr).
Fisalln th*. hsel "hmeunrk of ,tlts aefiyilies of mhqims. .will
certain duties (chapters XD( to
be
survey of gencal principhs ccmrdng
activitica pf
Ssioqq tehapter ]GfiS the q6dons, rEl4tis& first
all
to
bilstral
diplomeey
are atm. rry lchipen rcAV to )Oil/I), and
9f
letsr ts
of the,padiam4t+,ry. a,nd rrulflateral .@omacj,,, the
imporurnce of which h steadity ircresing (clupm.)Cvlty
diseussod iD Part Five
@[
tlse
24
Afu
th
PARTTWO
The External Missions
The expression 'external missions of subjects of international law' is not to

be found in either positive law or in publicists'writings.It is, horyever, a
purely descriptive and unambiguous tern.
The object of the following chapters is to discover what these missions
really are. we will first of all present various types of external missions
according to their nature, and their tasks and functions, the two being
closely interdependent. Further on in this Part we will deal with the
establishment and closing down

material setting.
of
missions, and, finally with their
25
Chapter III
External Missions is Organs of Subjects
of InternationalLaw
I
d
Most books concerning the law of external missions deal either with
diplomatic missions, sometimes including special missions and permanent
missions to international organizations, or with consular posts and their
functions. The definitions proposed are therefore limitedto these tradi
tional types of missions, whereas the new ones are only dealt with by
analogy. The prasent chapter tries to pinpoint characteristics common to
the whole variety of missions, among which diplomatic and consular
missions constitute solely distinct types.
1. corrruoN cHARAcrERIsrIcs
oF EXTERNAL MrssloNs
The concept of 'external missions', even if it is not used currently, can now
be applied to diplomatic, permanent, economic, special and consular
missions, to delegations to various international bodies and conferences,
and also to missions of international organizations. In all those cases the
word 'mission' signifies a group of persons sent by a State or a different
subject
or international law to perform abroad
some specific tasks
concerning its relations with one or more other subjects of that law.
Thus, individuals fonning these groups are not sent in their personal
capacity, and do notactindependenfly of the others. They aremembers of
a team in which specific tasks and responsibilities are assigned to each
individually. This distribution of functions is necessary for the group in
order to be called a mission. A minimum of such internal organization is
required also by diplomatic law, which constitutes the differencebetween
various categories of the mission's staff.
Two important consequences follow from this. In the first place the
mission exists independenfly of individuals constituting ir A change in
members or size of the mission does not affect its existence nor its
character.In fact, a mibsion can exist even without staff. In early times no
distinction was made betrreen the mission and its members. The mission
was simply identified with the person of the ambassador.Many ancient
27
texts, for instance, rather use the expression'the ambassador and his suite'
than'diplomatic mission', and'consul' rather than'consulate'. Now, this

distinction has become necessary in order to draw the line between the
rights and duties of the mission on the one hand; and of its staff on the
other.l
The second consequence is that the mission cannot possibly be
considered otherwise than as an organ of the sending subject. Every act
undertaken by the mission or in its name is therefore directly affributable
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to the sending State or organization.

But the external mission is an organ of a specific character. Not only its
activities are outward oriented and concern other subjects of international
law, but in addition it is usually located on foreign territory under the
jurisdiction of another State. Missions to international organizations or
conferences located or held on the territory of the sending State are an
obvious exception. Because of their location abroad external missions
enjoy a greater autonomy with regard to the central edministration of the
sending subject than most of its organs. This explains the relatively wide
authority which the head of mission has over its staff members and their
families, especially in crisis situations.
Another important aspect is that, contrary to other administrative
organs of State, the external mission is subject to three different legal
systems. In the first place, it is governed by the legal system of the sending
subject. If it is a State its personal jurisdiction extends over the mission and
the mmbers who enjoy its nationality. In the case of an international
organization the mission is subject to its internal legal order, whereas the
staff of the mission, except for its members locally recruited, have the legal
status of international civil servants working at headquarters.
In the second place, every external mission is subject to provisions of
international law, which prescribes its status, rights and duties.
Finally, because of the territorial jurisdiction of the State of residence,
every external mission and its personnel are subject to the internal legal
order of that State. But unlike for other residents of the State, international
law sets precise limits to the exercise of that jurisdiction over external
missions of other subjects of international law and their staff.
Looking at present realities of international relations,
it
becomes
evident that, apart from these legal arguments and theories, the external
missions are above all organs of communications between international
actors. This function of communication is, in fact, the main cofllmon
feature of all different types of external missions. All activities of external
missions can be seen mainly as the transmission of messages concerning
trlr
t Mattingly, p, 88,'s'hows, however, that beginning in the latter part of the 15th century
certain embassies of Venice had secretaries appointed independently of the ambassador.
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28
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different problems. The content of these messages does not alter the
nature of the transmitting organ. Noris thenature of this organ affected by
the subject which establishes and uses it. One could nearly use the
metaphor of a telephone which is totally unaffected by the way in which it
is used.
Looking at the external missions as organs of communication helps to

grasp the real meaning of the term "function of the mission' and to
understand the legal nonns relating to their exercise.
In addition to all common features external missions have also specific
characteristics relating to the nature of the sending subject.
2.
rxrenxÂr, MrssroNs oF srATEs
2.L.
The Right of Legarton
All current types of external missions
are more or less true copies of classic

diplomatic missions. Only consulates have kept their distinctive features,
even though they tend to become less evident.
The sending of a diplomatic mission was long considered as the
expression of the right of legation (ias legationis) which again was one of
the main attributes of sovereignty.2 On the basis of the rigtrt of legation the
State was allowed to dispatch to other States ambassadors and ministers.
Privileges and immunities they enjoyed at foreign courts were not granted
to envoys of countries not considered to be members of the international
society. But in fact the right of legation did not have any real content and
therefore could not take the form of a subjective right. Precisely for this
reason the codified diplomatic law makes no reference to the right of
legation. The Vienna Convention on Diplomatic Relations, by recognizing
that sending and receiving a mission are discretionary acts of States,
deprived the ius legationis of any real content
2.2. IntemationalPerconality
Another question is whether legal personality under international law is

still a prerequisite for establishing external missions as was required by
traditional doctrine. International instruments relating to external missions do not mention that condition, but they concern only subjects of
international law having by definition legal personality. Today, the only
exception being Namibia, there are no more territorial entities with a
doubtful or controversial status in international law.
2 For a discussion of that statement see Cahi er (1964),
p . 59 .
29
imre"
'rFnGq-qliiErErk*lt,rrE44t!iltlq+lqlrl,!.iltlFsr{irls.filt[ttlfi|rt*1rtr!+y!rr.$}*rtrp*lr,..,1r..
. .,
Nevertheless, in some instances a quasi-diplomatic status is granted by

certain States to milsions of political organizations which
rot subjecti
of international law. This is the case with representations of national
liberation movements. Another case are bureaus or delegations estab:
Iished for instance by Provinces of Canada (Quebec, Toronto) in certain
foreign capitals. In view of the diversity of existing situations the problem
of the international personality has to be described here in somewhat
different tenns. In fact, it must be said that diplomatic missions sezsa
stricto can be exchanged only between States, but other types of external
missions sent by political entities other than States can be granted by States
a quasi-diplomatic status.
-"
2,3. Recognition
Recognition of the State or the government concerned was another
condition required by traditional doctrine for the establishment of a
diplomatic mission. According to a notm of general customary law the
establishment of diplomatic relations implied the recognition of the State
or government concerned.3 This is certainly still valid when diplomatic
relations sensu stricto are concerned.
But in practice States often bypass this customary rule. This is well
illustrated by an instance of Swiss practice during the Vietnam War. At
that time Switzerland maintained diplomatic relations with South Vietnam
which had an embassy in Berne. In February 1968 the Swiss Department
of Foreign Affairs issued a communiqu6 stating that the head of the
Department, authorized by the Federal Government,'has appointed Mr.
Rosseti, Swiss ambassador to Beijing as the representative of the Federal
Deparftient of Foreign Affairs to the Foreign Ministry of the Democratic
Republic of Vietnam'. By expressly stating that ambassador Rosetti was to
represent in Hanoi the Department of Foreign Affairs and not the Federal
Government, the communiqu6 indicated the limited and essentially
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practical significance of this step. In order to avoid any misunderstandings,

some days later it was explained in Berne that the time had not yet come to
speak about the establishment of formal diplomatic relations between the
two countries.a
A similar case occurred when, after the visit of ttre American Secretary
of State Kissinger to Beijing in February L973, it was announced that
'liaison offices'of the respective govemments were to be opened in both
capitals. These offices opened a month later, were in effect playing the role
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See resolution of
Institute of Intemational Law, Brussels session, Annuaire,1936 (tr),
vol.39.
a Chroniqug RGDIP, L968,p. L125.
s-
of embassies and were granted the status of diplomatic representations,

with the sole restriction of not being allowed to try their respective national
flags. This in fact was tantamount to the establishment of dipromatic
relations between the two countries without a formal recognition by the
United States of the Beijing government.s
2,.4.
Dffirent
Types
of Missioru
Among missions of States other than diplomatic missions and consurates,

have to be considered permanent missions to international organizations,
delegations to international conferences and also special missions charged
with specific tasks in various fields, mostly technical.
States with centrally planned economies, generally called socialist,
establish commercial missions abroad, which represent State-owned
enterprises in their transactions with commercial, industrial or banking
paftners, which in the West mostly resort under the private sector.6 firese
missions are normally not granted diplomatic status because they do not
represent govemments of the sending States but rather nationalized
companies which essentially engage in commercial activities.
Another special case to be considered is that of missions of assistance
and aid to development, like e.g., missions of the American Agency for
International Development (us AID) and the French co-operation
Missions. Both are of a hybrid nature. On the one hand, they belong to the
diplomatic missions of their respective countries. On the other, they
perform quite specific tasks and enjoy a wide autonomy with regard to
both their own mission and the authorities of the receiving country (cf.
chapter VI).
2.5. Ministry of Foreign Affairs

In principle, external missions, with the exception as mentioned above, are
under the direct duthority of the Foreign Ministries of their respective
countries, responsible for the nature of foreign policy.T It means tlrat tt eit
Ibid.,,1g73,p.502,
6 Cahier (1964), p. 364. The term

'commercial mission, lacks in precision. It can be
appted either to a division of a diplomatic mission in charge uf promoting commercial
relations in general or to a separate mission representing State o*o"d errte.priser in their
relations with nationals of the receiving State. The status of commercial missions is therefore
usually defined in trade agreements. It should be added here, that the Soviet union has
always insisted on the diplomatic status of commercial missions. See on this question:
Grzybowski (1970),p.259; Wilson (1 967),pp.245-255; ILR, vol. 64, euersh v. USS& in
particular p. 587.
7 On the question of the organization of ministries of foreign nffai1s,
s66r among others:
Cahier (1964), pp. 348-361; Baillou et Pelletier; Pesantes Garcia, pp.172-182, Rousseau,
vol. 4, pp. 126-138; Satow,pp. 12-19.
3L
lL*i{-
staff resort under that Ministry, which is also responsible for their
organization, functioning and financing. The Foreign Ministry sends them
inslructions and receives their reports. This simple and logical pattern,
however, does not always reflect the reality.
Since military, naval, cultural and press attach6s began to be included
in
diplomatic missions, their organization became more complex. These

agents are full members of the mission under the authority of its head.
They do not resort, however, undertheForeign Ministry,butunder other
government departments with which they communicate direcfly. This
trend of decreasing control of Foreign Ministries over the diplomatic
missions has continued ever since. This is particularly the case with
missions of aid and assistance which administer substantial aid-funds
without any control on the part of the anrbassador or Foreign Minister.
The erosion of control by Foreign Ministries over the external relations
of their countries is also shown by the growing practice of economic and
technical ministries sending abroad their ownmissions, maintaining direct
contacts with various international organizations and negotiating and
concluding international agreements in their respective fields.In this way
Foreign Ministries lose control over external economic relations of their
countries which, especially in the case of developing ones, are often far
more important than traditional diplomatic intercourse.
External missions of international organizations, of more recent orign,
raise other kinds of problems.
3. Bxrpnx^ll
MrssloNs oF INTERNATIoNAL oRcANIzATIoNs
3.1. Functional Legal Perconality

External missions of international organizations are relatively new. At
first, rules concerning diplomatic missions were applied to them per
analogiam. A relatively recent instance of this approach was the resolution of the European Parliamentary Assembly of November 1 9th 1960. It
stated that 'the European Communities, by virtue of their international
legal personality, enjoy the active and passive right of legation'.8 This
argument, applied earlier to the League of Nations, is neither useful nor
accurate.e
In the first place, the legal personality of international organizations,

generally admitted since the 1949ICJ's Advisory Opinion on Reparation
of Injuries Suffered in the Service of the UN, has not the same conteut as
8 lourrul afuiel, pp. 1496 / QO.
e Dupuy (1960) p.477; Ilardy (1969), p. 45; Pescatorg p. 197; Schermers,p.73l.
32
that of States. It is,
as the Court has rightly stated, a functional personality.

This means that the rights and duties which correspond to it cannot be
determined a priori,but only in relation to the tasks which the organization is supposed to accomplish.lo Accordingly, an international orgarization can send a mission to another subject of international law when that is
necessary for it to fulfil its task. In addition, the receiving subject of
international law has to have recognized the legal personality of that
organization, at least implicitly. This is normally the case of States
members of the sending organization. In the case of organizations of a
universal character, such as the UN, the recognition of their international
personality in fact is general.
- In the case of the EEC, which is a strictly regional organization,
third
States are under no obligation to recognize its legal personality as distinct
from that of its members, nor, by way of consequence, its active or passive
'right of legation'. For a long time this was the position of East European
countries. This has now changed, and the COMECON is negotiating the
establishment of fonnal relations with the EEC, implying necessarily some
kind of mutual recognition. This shows that the alleged right of legation of
international organizations does not exist per se as far as third States are
concerned. In each case the establishment of missions to or by such
organizations depends solely on the decision of the States concerned.
.2. Non-Reciproctty
Finally, the question can be asked whether reciprocity is a sufficient legal
basis allowing an international organization to establish a mission in a
State which has a mission accredited to ttrat organization.ll The answer
should be negative.It is not possible in fact to place on the same footing
States and international organizations, whose international legal personalities are so different, and whose mutual relations, therefore, are aq/m.
metrical.Itmeans thatin such cases there canbeno questionof reciprocity
which applies only among similar and forrrally equal partners. This is also
ffue of other external missions to which simple analogies do not apply.l2
The functional legal personality of international organizationsimplies
that objectives of their external missions have to be in line with their aims.
The variety of mission of an organization, therefore, will increasewith the
!0 See on this subjece documents of the work of the ILC on 'Relations between States and
International Organizations', in particular ILC , Yearbook,1978, VoL tr, Part One, Chapter
ry.
I
I Pescatore,
p. I 95; Raux, p. 249; Ganshof van der Meersch" p.
1 1
53.
12
ForinstanceDupuy(1960),p.468;similarlyMaresca(1975)devotestothisquestiona
chapter of his book on special missions, pp. 695-705.
33
{'#F
{t
diversity of its functions. External missions of organizations of a general

character like the UN, have to be classi,fied accoiding to their resf,ective
purposes. Thus they may be either political or relatedio
.t;r"l.;#;;.
3.3.
Types of Missions
Most missions of the UN Secretary General or of his personal representatives, undertaken pursuant to decisions of any of iis main o.g;uro,
belong to
4" first category. The second category comprises the resident
representatives of the UNDP who, nevertheless, act usually as general
representatives of the UN.
The EEC also establishes two different kinds of external missions. In
the
first place the EEC has missions accredited to governments of industrialized countries, such as Australia, canada, Jap-an, the United States,
etc.
They.are sent by the commission of the E-EC and represent it in all
questions covered by theTreaty of Rome. on the other hand,
by virtue of
article 228 of the Lom6 convention III, the EEC commission sends
permanent deregates to governments of the associated ACp countries.
Their task consists in administering aid provided by the EEC accordidi;
that convention (cffnfra, chapter ><ml. other regironal organizatiom
if u
general character,like the oAU or the Arab League, mainlain
missions of
representation in some important capitals.l,s
Finally, there are missions which international organizations send to
other organizations. The most common among Ir"- ur" missions
exchanged between.organizations within the UN"system. Interesting
as
they maybe for the theory of international organizatiln, they u.".urfrrrul
from our point of view. In fact their membeis stationed iniost states
of
v31gus organizations enjoy, wherever they are, the status of international
civil servants, as defined in the conventions onprivileges and immunities
of these organizations.
The external character is more pronounced in the case of missions to
international organizations sent or established by organizations which do
ry1bef9ng to the uN systern, such as the EEC, the-Arab League or the
gAU.'-t These may be either observer or liaison ofEces. officiis beton!in^g-b the first type have
lormaly the right to speak in meetings;**;
of the receiving organizations, whereas the task-of those of thelecondls
to
maintain contacts at the level of the secretariats.
The question has still to be answered as to the place of these external
missions within their respective international organi2ations. Two poil;
13
see for instance Butros-Ghali, La Ligue des Etats Arabes,

Farag Moussa (1960), pp. 77 tr.
ra B. Ademicael, p. 161.
34
CADI ,vor.l 37, p. 6g; also
have to be taken'into consideration.In the first place, because activities
of
international organizations are basically outward oriented, they do not

need nor actually have any specific org4ns for that purpose. Secondly, as
already mentioned, their missions have specific and limited tasks. Their
external missions, therefore, may be set up by different organs according
to need. For example, rnissions of the UN are sent either by the Secretary
General in the case of political missions or by the UNDP Administrator in
the case of the Resident Representatives dealing with development
assistance.
The same is true of the EEC's missions. Missions to industriatized

countries are under the General Directorate I in charge of external
relations, whereas delegates sent to ACP countries are under the General
Directorate VItr dealing with development assistance.
Before closing this Chapter missions of particular types deserve a few
comments.
4. MIssIoNs oF suBrEcrs
oF A spEcIAL cHARAcTER
4.L. Papal Nuncios

Papal diplomacy has a long history, and nobody today will question the
right of the Holy See to accredit missions to States and to international
organizations.rs They have to be treated separately because of the hybrid
nature of both their sending subject and of their functions.
Since the early Middle Ages and except for a brief period between the
suppression of the Papal State, when it was incorporated into the Italian
Kingdom in 1,870, and the L929 Lateran Treaty recognizing the international sovereignty of Vatican City,16 the Pope has always been both the
spiritual head of the Catholic Church and the sovereign of a territorial
State. His envoys to States, nuncios, pronuncios, legates and apostolic
delegates were representing thd Pope as a sovereign, but were also
performing certain religious functions within the local Catholic Church.
Nowadays, the Vatican, with a territory of 0.43 sq. kilometres, is rather a
symbolic State. Therefore, missions of the Holy See are generally considered as representing the spiritual leader of the Catholic Church rather
than the Vatican as a territorial State. But the international legal personality of the Vatican is universally recognized. This allows the Floly See to
15 Among many writings devoted to Vatican diplomacy particularly relevant are those of
I. Cardinale and of R A. Graham listed in the bibliography at the end of the book.
16 A new concordat between the Holy See and Italy was concluded in February L 984, but
it does not affect t}re status of the Vatican in international law.
35
be party to the Vienna Convention on Diplomatic Relations which then

applies to its externd missions.
The functions of the representative of the Holy See are defined in
articles 362 to 367 of the Code of Canon Law. Accordingly, ttre Pope's
envoys in the first place perform ecclesiastical functions and serve as a link
between the Holy See and national bishops. Secondly, they are representatives of the Holy See to Governments of States; with which the
Catholic Church has historicd links or where it is present in any other way.
According to the above provisions this diplomatic function has to be
exercised in the interest of peace and of the receiving country.
The Holy See has also pennanent observer missions to the main
international organizations and sends its delegations to participate in
many international conferences.
4.2.
Missioru of the Orderof Malta
The importance and influence of the Order of Malta is not comparable

with that of the Vatican nor can it pretend to have sovereignty over any
territory. Nevertheless, its ancient active and passive rights of legation is
recognized by a number of States. Founded in Jerusalem at the beginning
of the L2th century at the time of the Crusades, the Sovereign Oider oI
Mdta effectively exercised its sovereignty in Rhodos (1,309-L522) and
later in Malta from 1 5 2 3 until its occupation by Napoleon in L 7 98. 17 After
having resided in several Italian cities, in 1834 the Order was granted
hospjtdity by the Holy See which authori2ed it to establish exterritorial
headquarters.
After a long period of decline the Order of Malta has since the beginning
of this century, developed certain activities in the field of charity and retief,
especially by caring for the sick and wounded. Being now an association of
individuals organized into national chapters, the right of legation of the
Order of Malta is based
on historical titles, such as past
sovereignty over Malta and the title of Prince of the Holy RomanEmpire
to which its Grand Masters vrere entitled. At present the Order of Malta
maintains diplomatic relations with 4 L States of the five continents and has
diplomatic missions in four of them.l8
4.3. Delegatioru of the ICRC
of the International Committee of the Red Cross (ICRC)

constitute a very special case. The ICRC is neither an international
Delegates
7 For an exhaustive discussion of the

history and the present status of the Order of Malt4
Fischer; and also Grahaq p. 26; I,lbFcimento de Silv4 p. 38.
It For a complete list see Fischer,p. 47.";
1
see G.
36
organization set up by States nor canit in anywaybe compared to a State.

Nevertheless, its delegations, established in more than 45 countries and
staffed by more than 350 delegates, are generally granted a quasi-
diplomatic status.
The ICRC, founded in Geneva in L863, is a private organization of
Swiss law, with an exclusively Swiss membership, Its main objective is 'to
protect and assist any person which due to circumstances has been
deprived of protection and assistance'.le In spite of its private character,
tfri fCnC has since its founding played a unique international role in the
development and implementation of the international humanitarian law. It
began with the 1864 Geneva Convention for the Amelioration of the
Conditions of the Wounded in Armies in the Field, concluded on its
initiative.2o Since then the ICRC perforrred important humanitarian
functions among others inmany armed conflicts, includingthetwoworld
Wars. This was formally recoenized by the 1.949 Geneva Conventions and
thetr L977 Additional Protocols.
Due to its generally recognized international status which can be
defined as functional internationat personality, members of the international community have always granted a privileged status to ICRC
delegates, performing humanitarian tasks all over the world in times of war
and peace.
Because of the considerable increase in its functions and activities the
ICRC since the early 1960s, concludes for its delegations with
States
concerned seat agreements which are comparable to those concluded by

international organizations. More tl6lz} of them are now in force, and
many more have been concluded in simplified form.
Some of the ICRC's seat agreemeott tist privileges and immunities
granted to delegates, including inviolability, immunity from civil and
irimina jurisdiction, freedom of communication and travel, exemptions
from taxes, etc. Some others refer simply to 'all diplomatic immunities
recognized by the Vienna Convention on Diplomatic Relatrons'.2l
It fias to be added that allICRC delegates arenecessarily Swiss nationals
re Durand, I-e Comiti International de ta Croix Rorqe Gendve, CCR, 1981, p' 4; also
J. Pictet, Les principes de h Croix Rouge, Genbvg CIC& 1951; J. Moreillon, Les principes
fondamentaux de la Croix Rougg paix, et droits de ltomme, Revuc bXemational de la Cro*

Rouge,1980, juillet-aott. On the delegations of theICRC seeKnitel, Bibliographyattheend
otmeUook.lttras tobpointed outhere ttrattheICRCis tobedistinguishedfromtheLeague
of the Red Cross Societies and from the International Conference of the Red Cross. The
latter consists of delegates of the national societies of the Red Cross, of States parties to the
Geneva Conventions, and of the ICRC.
' 20
For the legal tefts conceming the Red Cross see
Maruel dc la Cruix Ronge Genbve,
CCI& 1970, 1 lth edition.

21
ForinstancearticleTof theseatagreementwithCostaRicaof
21 September1983.
37
and re:issued ryith Su/ise, diBlomadc passports. This is an additional

-
reason for them enjoyiug diplomatic status.

The specifrcity of isxtorml missions corresponding to the characteristics
or the sending sie1.: pro}des only a partiat vlew of their diversity.

Another dimension of,thatidircrsity sieurs&om the.vadety of tasks with
which external missbns can be,entrusted. This is ee sdd;t of the next
chapter.
38
Chapter tV
Permanent External Missions and
Their Functions
Permanence is not a characteristic restricted only to missions studied in

this chapter. It also belongs to specialized missions dealt with further on in
this book. It is, however, convenient to list here under thc same heading
three basic types of a Statds missions, namely diplomatic missions,
consular posts and permanent missions to international organizations.
1. urssroxs
oF REPRESENTATIoN To srATEs
Pennanent diplomatic missions are, according to article 2 of the CD& the

core of this category even though they do not extraust it. These missions
are so strongly embedded in the international society, as it developed since
the 1648 Peace of Westphalia, that it seems futile to try to define them.
Even the ILC did not consider it necessary to include such a definition in
the CDR which is entirely devoted to them.
L.L. Representation
The diplomatic mission established by one State in another State is a
perrranent organ whose multiple functions are well summed up by the
Latin expression lzs representationis omnimodo whichmeans the right of
overall representation. The term'diplomatic pennanent mission' used by
the CDR refers to embassies, legations,l Papal nuncios and other missions
of the Holy See, as well as High Commissioners, who are envoys
exchanged between Commonwealth countries.
The diplomatic pennanent mission, more than any other, bears the
character of the principal organ of communication between States'
governments. It is, therefore, rather difficult to define its tasls with
l UntilWorldlYarllthereweremorelegations,whicharemissionsofalowerrank,than
there were embassies. Now they have disappeared completely. this new situation
corresponds better to the sensitivity of States conceming their sovereip equality.
39
ia
'*&
precision and make them more specific Article 3, paragraph
I of the cDR
which lists the functions of the diplomatic missioi has not entirely
overcome that difficulty.It mentions hve functions *hi"tr are-.epresentation, protection, information, negotiation and development of mutual
relations.
The first one consists in'representing the sending state in the receiving
!t11"'. It is certainly the most importanifunction fro=m which all the otheri
follow. The term 'represent' is used here not in the strictly legal .rrr",, bri
means that one Staie is made present in another through
organ.-During ceremonies and formal functions, this preience may be of
a
symbolic character. But it also has
1very practical importance in making a
direct and immediate contact possible uetween organs of the two States.
This function of representation is not only the m6st important arnong
all
others but is in fact the cen{al piece of thewhole structure of diplom-atic
law.It
q9 performed only by a State organ, because without an organ
there would be no presence. The main object of the cDR is preciselito
preserve the authenticrty of that organ, by protecting the mission
aro it,
staff.from any kind of interference which migtrt result-from its location on
foreign soil, far from its direct authority.
fr" p*i'""r*
"*
1.2. protection
The second function of the diplomatic missions, which derives from
the
first, consists in
protecting in the receiving state the interests of the sending state
and of
its nationals, within the limits permitted by international iiw;
fcpn,
par.1 b/1.
i;
The terms used are very general and it is difficult to determine the real
content
!,f this provision. The 'limits permitted by intemational laf,
namely the cDR itself, consists mainly in limidni to the nainistry of
Foreign Affairs the contacts of the mission and in forbidding any interference in the internal affairs of the receiving state. Thus, the irission
can
exercise its function of lrotecting' only by the intennediation of
the
ministry in question.
. contrary to the limits imposed on theform of the function of protection,
its substance can be as varied as the concept of tnterests of tire sending
staje'. These may consist in long-terrr objectives of its foreign policy
aI
well as ojvery down-to-earttu immediate, materialproblems."The
same is
true of the interests of its nationats, whether naturai or legal persons.
The
2
40
See Sereni who deals
with this problem exhaustively.
protection exercised by the diplomatic mission can either concern principles of their treatment or specific individual cases. But whatever the case
it may only consist in presenting to the Foreign Mnistry of the receiving
country, withmore or less insistence, the point of view of the sending State
on the interests concerned.
The function of protecting the interests of its nationals carried out by the
diplomatic missions has to be distinguished from the institution of
diplomatic protection, related to the international responsibility of States.
The latter concerns only cases involving violations of an international
obligation. The State injured by such a violation may espouse the cause of
its national and engage the international responsibility of the State author
of the violation. geforehand, however, the State concerned has to
ascertain that local redress has been exhausted and that the conduct of the
plaintitr has been beyond reproach.3 In spite of its designation as 'diplomatic protection'it does not belong to the normal functions of a diplomatic mission and thus is beyond the scope of this book. On the other
hand, the protection of interests not involving violations of internatiohal
obligation, is part of normal diplomatic relations between two States.
All this concerns the protection exercised under normal conditions.In
situations of crisis or of natural disasters the diplomatic mission may have
to act directly, whenever possible with the consent of the receiving State,
on behaH of its nationals. This may involve providing them with food and
shelter, taking care of their transport and evacuation, etc.
.3. Negotintion
The third function of the diplomatic mission mentioned in article 3 of the
CDR consists in negotiating with the Government of the receiving State.
In so far as the word 'negotiate' means 'to discuss in order to reach
agreement', this function is closely related to the preceeding two. Its
express mention in the Convention underscores the fact that the mission is
the normal negotiating partner of the receiving State and that the
credentials of its head are tantamount to full powers. The right of the
diplomatic mission to negotiate is confirmed by article 7,paragruph2 of.
the L969 Vienna Convention on the Law of Treaties which reads
in virtue of their function and without having to produce full powers

(.) a.e considered as representing their State: (.) b/ heads of
diplomatic missions, for the purpose of adopting the text of a treaty
betweenthe accrediting State and the State towhichthey are accredited
(article 7,par.2).
3 Cf. the draft article.s on the responsibility of States, ILC, Yearbook,lgSL.
4L
This general right of,the diplomatic mission to negotiate, however, does

it exclusivity in &is field. According to a well-established
practice, States often entrust negotiations on certain specific issues to
missions especially named to that effect.
not grant
1.4. Information
The function of information of a diplomatic mission has a somewhat
different character.It consists in
ascertaining by all lawfult means conditions and developments in the
receiving state, and reporting thereon to the Government of the sending
State
II
il
ilr
t
t
t
il
t
al
il
T
h
I
I
(CDR
3, par. L,
d/).
It is normal and logical to entrust this function to the organ of communication between States. In this instance, however, the diplomatic mission
plays an active role.It consists not only in transmitting messages received
from either Government, but also in taking the initiative Jf collecting

information from different sources, to anaryse it and pass it on to its owi
Government. This task has to be carried out within limits estabHshed by
the internal legislation of the receiving state. In practice, this may create
some problems, because in some countries national laws considerably

restrict the freedom of information. It happens, therefore, that a *ay ot
collecting information which is considered normal and lega in bne
country, may be seen as a criminal act of spyrng in another. Disputes or
misunderstanding on these questions often lead to measures of expulsion
of diplomats.
The express reference to the function of information in the cDR in
principle imposes on the receiving State the obligation to allow the mission
to carry it out freely, without accusing it of violating its sovereignty.
L.5. Promoting Friendly Relatioru
il
til
Finally, inalinea e/ of the sameparagraphthe cDRmentions thefunction

consisting in
f,.
t(
promoting friendly relations between the sending State and the receiving state, and developing their economic, curtuial and scientific rela-
Iu
Two comments have to be made on this provision. First, the reference to

qfriendly
relations'underlines the fact that the diplomatic mission is, in
principle, a mission of goodwill. In fact, a minimum of goodwill is
f,
q
42
il
il
il
tt
t
I)il
tions.
indispensable for establishing diplomatic relations. The explicit reference

to this fundamental character of the diplomatic mission means that it
should never be brought into question, even when the mission has to
present views which might displease the receiving State.
Secondly, the task of 'promoting and developing relations'implies a
certain amount of initiative on the part of the mission. Thus, proposals
concerning mutual relations presented by the missions a priori have to be
received with goodwill by the receiving State and should not be considered
as an illegal interference in its internal affairs.
Finally, paragraph 2 of ttre same article authorizes the diplomatic
mission to perform consular functions, which are dicussed in the next
section.
1,.6. Protection of Foreign Interests
In addition to normal functions listed in article 3 of the CDR,
the
diplomatic mission can exceptionally be entrusted with the protection of
the interests of a third State in the receiving countrya The CDR distinguishes two different situations here. The first occurs when a State,
having broken off diplomatic relations with the receiving State, requests a
third State to protect the premises of its mission, as well as its interests and
those of its nationals (CD& 45). The second situation arises when a State,
not represented in the receiving country, requests a third State to
undertake the temporary protection of its interests (CDR, 46). We shall
now briefly discuss the latter situation, whereas the first one will be dealt
with later on (chapter IX).
This is a different situation from that of several States accrediting one

person as head of their missions in one State, permitted by CDR article 6.
Contrary to what is in effect a joint mission, article 46 of the CDR refers to
a case where a diplomatic mission, temporarily and to a limited extent,
protects in the State of residence the interest of a third State.s The
protecting mission does not represent the third State, but deals only with
day-to-day matters. It is, therefore, not entitled to conduct diplomatic
negotiations nor to conclude agreements in its name. The third State
concerned may at any time dispatch a special mission or otherwise
establish direct diplomatic contacts for such negotiations.6
a On the practice of States in this field cf. Whiteman, vol. 7 , pp. 448-464.
5 Sereni uses in this respect the term 'protection d6legu6e', p Ll2.
"
6 One can quote, for instance, article 3 of the Franco-Malgassy Agreement on Cooperationof June 27th 1960 whichprovided:'LaR6publique Frangaiseassure,
ila
demande
de la R6publique Malgache, dans les Etats oir celle-ci n'a pas de repr6sentation propre, la
repr6sentation de la R6publique Malgachg ainsi que la protection de ses ressortissants'. A
43
In order to protect the interests of the third State, the accrediting State
first has to seek consent of the State of accreditation. By expressing its
consent the receiving state accepts that the mission acts beyond its rror-al
functions; it also takes note that from then on it will have to deal with that
mission in all matters concerning the third State and its nationals.
On the other hand, the third and the protecting States have to conclude
an agreement establishing the modes and limits of that protection. The
Foreign Ministry of the protecting State, which often has a special service
dealing with cases of protection of foreign interests, will maintrin contacts
betweenits mission and the third State concerned.
il
t
I
il
Missions of international organizations accredited to States may be

entrusted either with general representation or with specific tasks only, for
instance relating exclusively to development assistance. Missions of the
EEC in industrialized countries or missions of the Arab League, for
instance, are of a general character. Their status is similar, but not identical
with that of diplomatic missions. By virtue of special agreements and
internal laws of many States they belong, for all practical purposes, to the
category of diplomatic missions, even though their heads have a lower
rank than diplomatic representatives.T
,t
The main functions of missions of international organizations also

resemble those of diplomatic missions. Their exercise is limited by the
functional international personality of the sending organization estab-
lished by its constitution. Mssions of international organizations are never

allowed to take up the place of missions of the States members of the
T
,l
I
f
t
I
organization.
2. coNsuuR
,l
il
il
til
t,
It
il
d
{
il
n
I*r
il
til
i(
til
2.L.
MIssIoNs
The Nature of Consular Missions
Consular posts form a separate category of State missions. They perform

very specific functions clo5ely related to the jurisdiction of the sending
State.
Although their designation may have been different at various times and
places, consuls are regarded as the most ancient kind of permanent
similar provision is to be found in many agreements concluded by France with other African
countries at that time - see Encycbpddie Juridiquc de lAfrique, Abidjan, Dakar, Lom6.
1982, vol. II,pp. L42-143.
7 conceming for instance the status of the EEC
mission in the uSA: public Law gz-4gg
of.12 Oct. L972, Legislation on Foreign Relatiors ,vol. ii, p. 393.
44
missions established abroad.s They have always represented the sending

State to the authorities of the State or city of their residence, taken care of
the former's economic interest as far as cofilmerc and navigation were
concerned, and protected its nationals. In addition, under the ancient
system of capitulations, consuls had exclusive jurisdiction over nationals
of their countrywho happened to be in the place of their residence.
Governed for a long time by customary law, since the end of the 18th
century consular relations were ruled by international treaties, mostly

bilateral, and by national laws. Treaties or conventions solely devoted to
consular matters or consular clauses in commercial treaties over the years
became'common practice, so that, for instance, between 1920 and 1,969
more than 125 consular agreements have come into force.e
Today, consular relations are usually ruled by the 1963 Vienna
Convention on Consular Relations. This instrument constitutes a general
framework which can be supplemented by bilateral or multilateral
conventions or agreements. A.good example is the L967 Errropean
Convention on Consular Functions concluded under the auspices of the
Council of Europe.ro
The 1963 Convention offers a definition of consular missions.It is a
rather tautological one saying that the expression'Consular post'means
any consulate-general, consulate, vice-consulate or consular agency;
(CRC,1,a/).
' Consulai functions are listed in article 5 of the CRC. This list is much
more precise and detailed than its counterpart in the CDR. This is easily
explained by the fact that consuls have more limited but also more
technical functions than diplomats. In the CCR the enumeration is
supplemented by examples of the different consular functions as was the
practice of many earlier consular conventions.It helps to avoid difficulties
in its implementation.ll Article 5 of the CRC lists thirteen different
consular functions. They can be grouped in five main categories.l2
2.2. Representation of the
State and of its Nationals
First mentioned are functions such as protecting the interests of the

sending State in the State of residence (art.5 a/), developing commercial,
economic, cultural and scientific relations between the two States (art.5
s Cf. on the subject our bibliography, in particular books by Ahmad, M. A.; Lee, L. T.;
Znrtrek,J.
e For a list of consular agreements concluded between 1769 and 1969, see Ahmad,
Annex VIL
10 Cf. Annunire Europden, L967, p. 284.
11 Conference on C.R., A/Conf.25/6,arncle 6, Commentary, par.2.
12 Conceming consular officials, see Lee (1966), Chapter 8; Se4 pp. 227-244.
45
]L
To end this brief survey of consulates and theirfunctions it is interesting

to quote the following, rather pessimistic view on their future
The decline of the consular institution is foreshadowed by legal

mechanisms which allow diplomats to exercise consular functions.In
fact there is no more legal justification for the existence of an administrative entity distinct from the diplomatic mission. Therefore, and in
spite of the solid legal basis provided for by the 1963 vienna convention, the bell maywell have tolled for it.r7
3. MrssroNs ro TNTERNATToNAL
oRcANIzATIoNs
The character of the external missions is influenced not only by the nature
of the sending subject of internationar law. The nature
trr" subject
receiving them also has a bearing on the functions they perform. This is
evident in the case of missions sent to international orga#ations.
3.L.
Missioru of Membersntes
9rg of Permanent Missions. with the setting up of the League of

Nations, states began to establish permanent missions to intern;tional
organizations. The first six permanent missions to the League of Nations
were established as early as lgz}.In 1936 there were +a rt them in
Genevaonatotalof 58 members of theLeague.ls sincethecreationof the
united Nations the number of missions to international organizations has
increased even more rapidly, along with the growing rri.b", of both.
international organizations and of independent States. Perrranent missions to international organizations can either be independent or be part of diplomatic missions accredited to the host state of
the organization. All missions to the UN established in New york and in
Geneva belong to the first type. Missions to organizations located in
capital cities or states, such as paris (uNESCo), Rome (FAO) or Brussels
(EEC) oftenbelong to the second category.le
Amission to aninternational organization represents the member State
inside that organization which is another subject of international law. In
17 Venneman-(1965),
p. 116; as an argument in favour of this thesis the author mentions
not only article 3, par.3 of the cDR, which allows a diplomat to perform
consular functions,
but also art. 12 of the same Convention which providJs for the possibility
of op"i"g om"*,
of the diplomatic mission outside its seat, p. 1119.
tE Les Missiorc
Permatuntcs,Tomel, pp. 25-12L.
te lbid.,p.838.
48
this situation it is not possible to apply the principles of reciprocity and

equality on which diplomatic relations between States are based. This is
also true of observer missions of non-member States which are external to
the organization but nevertheless participate, in a limited way, in the work
of the organization. Finally, the situation is different in the case of missions
to the EEC sent by third States, which are completely external to it and
which take no part in its activities.
The UN Charter and constitutions of international organizations carry
provisions on delegations of member States to sessions of their organs, but
not on permanent missions. Neither are the latter mentioned in the
CPIUNand the CPISA which only contain provisions on the status of
member States' representatives. But already in 1948 the General Assembly recognized the importance of permanent missions.Its resolution25T
A (trD declares that
the presence of such missions contributes to the attainment of the

purposes and principles of the United Nations and, in particular, to
maintain the necessary contacts between member States and the
Secretariat, especially between sessions of its various organs.
As a result, ten years later the Secretary-General could state before the
UN General Assembly that
the permanent representation of all member States at the headquarters
of the Organization and the growing diplomatic contribution of the

permanent delegations (...) could well prove to be one of the main
features of the 'customary' evolution taking place in the constitutional
framework of the Charter.2o
Participation
in the Activities of the
Organization. The functions of
permanent missions have developed gradually to the point when they have
become the principal organs of multilateral diplomacy. Three of the
functions of diplomatic missions listed in article 3 of the CDR, namely
representation, negotiation and information, are performed also by

permanent missions.2l When it began work on draft articles on the
representation of States in their relations with international organizations,
the ILC realized that the specificity of permanent missions called for a
special definition of their functions. Article 6 of the Commission's draft
listed five of them and trvo others were added during the L975 Vienna
20
21
LC, Yearbook,L97L,voLtr, Part One, p. 289.

La Mbsioru Permanentes,vol. I, p. 849.
49
conference.22 This articre was adopted without opposition and

with only 4
abstentions. It certainly proves that it reflects a generat practice
of states
relating to perrranent missions.
Article 6 of the cRslo enumerates seven functions of permanent
missions. The use of the expression inter alia indicates that the
enumeration is not exhaustive, and that other functions may still be added.23
The first and principal function of the peroranent mission, consists in
ensuring the representation of the sending state to the organizations.
Because of the nature of the international organization this function
differs
somewhat from that of a diplomatic mission. on the one hand, representation means maintainin contacts between the sending state
and the
organization as subject of international law, able to act, cinclude agreements, etc. on the other hand, it also consists in representing
that sta-te as
member ottt: organization, participating in its decision-.;ki"g process
and its activities. The more specifiCfun"tions of the permanent
mission
listed further on reflect this duality of tasks.
To the first category pertains certainly the function of
maintaidng liaison between the sending State and the organization

(cRsro 6 b4.
ffi! yl
precisely the purpose for which perrranent missions were first

established. And this is why the ILC deemed it necessary to mention
gxdicitlv.
At present it
refers mainly to keeping
Secretariat of the Organization.2a
in touch with
it
the
\esutyti.on The permanent mission has two more functions concerning

the relations between the sending state and the organization acting
ai
independent partners. These functions consist in:
c/
negotiating with and within the Organization;
nrotectins
{Organization
the interests
(CRSIO 6).
of the sending state in relation to
Negotiations mentioned under
the
c/ areof two kinds. Negotiations with the

organization are bilateral. They often lead to the coiclusion of agreements on various questions, such as technical assistance provided
u! tne
22 Conference
on RSIO, vol. II, p. 85.
ln_tnnltions of permanent missions, see Maresca (1
24 LC,
Yearbook,
]l
50
1971, vol. Il, p, 27.
979),pp.57tL
Organization to the sending State; participation of the sending State in a

project of the Organizationinathird State @rojects calledmulti-bilateral);
the setting up of a regional office of the Organizatiou in the sending State,
etc. (CRSIO 12) Negotiations within the Organization are carried on by
the missionnotwith the Organizationbutwith representatives of the other
members. This does not refer to debates within the different organs of the
Organization but to multilateral diplomacy taking place on their fringe. On
this point Mr. El-Erian, special rapporteur on the ILC's draft articles,
righAy stated attheL97l Vienna Conference, that
difficult problems may be solved by way of negotiations between

permanent missions of States, and they often take place when the States
concerned do not maintain diplomatic relations.2s
Protection of Interests. The function in point f/ above, not mentioned in
the draft submitted by the ILC, was added by the Vienna Conference
following a proposal of the Spanish delegation.26 In the discussion it was
pointed out that this function was completely different from the protection
exercised by the diplomatic mission.In relations withthe Organization the
permanent mission had to protect specific interests of the sending State,
which may concern financial contributions of the sending State towards
the budget of the Organization, the recruitment of international officials,
injuries caused by activities of the Organization, etc.
zrfticle 6 of the cRSIo mentions two functions pertaining to the second
category which relate directly to the membership of the-organization.
They consist in
e/ ensuring
the participation of the sending State in the activities of the
Organization;
g/ promoting the realization of the purposes and principles of the

organization by co-operating with andwitrrin ttre organization.
The one under e/ was not present in the ILC's draft.Its inclusion was
proposed at the 1975 vienna conference by the French and Swiss
delegations. The French delegate argued that it was not meant to impose
an obligation, but to stress that the permanent mission was the instrument
by which the member State can exercise its right to participate if it so
wishes.27
:s
26
RSIO Conference,vol.I,p. L04,paragraphs
lbid.,loc.cit. and vol. tr, p. 85.

21 lbid"vol. I, pp.
100, 101, 106.
46 arrd 47.
51
The function under_g/ is just a coronary of the provisions

of articre 1 of
the IJN charter and of the LgT\,Declaration on

the r.inciptes of
International Law concerning Frigldry Relations
and co-operation
between states'. Anyway, staaes adhere to internatiorr.at
organiratio,
mainly in order to exercise this function.
Information The last function to be mentioned in point
d/ of the same
article consists in
ascertaining activities in.the organization and reporting
thereon to the
Government of the sending Stati.
fo. a vry important task for both the rerations
of the state with the
organization and for itsêtrective participation in the
tunctiffi;;;
latter. The free access of members to information
on all activities of the
organization in prirrciplemakes it easy to p"Jo*.
H;;;;'the over_
production of documents by most organizations
creates some difficulties
in this field.
TTr
3.2. Observer Missions

Permanent observer.missions to organizations
represent non-member
states who, by definition, are externh to the
a consequence, the list of.their functions provided -guirirutio"2ie,
by articte 7 of the cRSIo
includes, on the one hand, the representation
of the.""o*g st",e and
safeguarding of its interests in rel-ation to the_org-irutior-,iiuiitaining the
of
it
on the activities of the 6rg""irrti." ild promot.renoling
Hr:i
lnth
-it
mg co-operation with it. on the other hal4 froweu"r,
,.""ssarily
g.xclude-s.th9 participation of the mission in the activiti", of trr"
org*irution and in the realization of its pu{poses and principte.s. gut
this does not
mean that the observer mission hai no rore
ti pruy*itr,io-trr"b rganiza_
tion. In fact, the observer status, which
rnuryt-,,
o* org*i zationto
-uy
cgnferlylon
qgngrally
the
subiecr
concerned
the right to take
11"--r'h"I
part
and address sessions of its principar organs
but without uoiing-rigt tr.
within these limits the observei mission
p""i"ip"", i" the life
of the organization.
"ni"tiuety
Since L97 4 the observer status with the UN
is granted to national
liberation movements recogni zed by the OAU
and the Arab League.
Their observer missions can also participate
in plenary sessions of the
28 cf. R'
G. Sybesama-Kno r, The status of observer in
the united Nations, Brussers,
L981,484p.
52
v[.Ig,
General Assembly as well as in the work of its main Committees and of

their subsidiary organs whenever it concerns them.2e

The expansion of the UN system both in terms of the number of bodies
and of their activities, makes the co-ordination between them necessary.
The authors of the UN Charter have already made provisions for the UN
Economic and Social Council to co-ordinate activities of the Specialized
Agencies. tater on the Administrative Committee on Co-operation
(ACC) was set up. It is presided over by the UN Secretary-General and is
composed of the heads of the secretary of the UN Speciali zed Agencies. In
addition, it has become corlmon practice for organizations, belonging to
the UN system or not, to exchange missions between themselves.
Such missions are purely functional. They have, therefore, different
characteristics, which depend on specific needs and on the kind of mutual
relations of the organizations concerned. They are basically of t'wo main
types, namely observer missions and liaison missions.30
In general,, observers are high-ranking officials of an organization
systematically or occasionally invited by the principat organ of another
one to attend its meetings. As a rule they may take the floor and make
proposals. The exchange of observers constitutes a real interpretation of
the international organizations concerned. This has become routine,
especially within the UN system.
The situation of the EEC in this respect is different. Its observers attend
sessions of the main organs of some organizations, namely the General
Conference of UNESCO, the Council of Ministers of the OECD, etc. with
the right to address them. Within GATT, of which the EEC is a contracting party, its mission has identical functions and prerogatives as those of
the States-parties.
EEC's relations with those organizations do not involve reciprocity.

This is due to its special nature. The supranational authority exercised by
the Council, which is the EEC's main organ, excludes the possibility of the
presence at its meetings of any outside representative.3l
Liaison missions, which make up the second type, serve to maintain

contacts between the secretariats of international organizations. Within
the UN system they are exchanged by virtue of special agreements
between the organizations concerned. They are normally small offices
which serve to co-ordinate activities of the secretariats, undertake joint
2e
30
General Assembly resolution 3280 QO(ID of December lhth lg74.

Dupuy (196}),pp.468-47 8; Raux (1966), pp. 121-130; Schermers (1972),p.743.
IIN
3r Raux(1966),p.130.
53
studies' regotiate and_preptre agreemems,betuA*ri their

orgadzations,
oAU.md somi other organizarioco trave sf,lur riaison
etc. The EEC, the
32 Andemicael
(1976),
54
p. 160.
ChapterV
Temporary External Missions
The sending of temporary missions or ad hoc missions rather exceptional

II has since become very common. It soon became
apparent, however, that no provisions of customary international law were
direcfly applicable to this kind of mission.l By now, the 1969 Convention
on Special Missions (CSM) and CRSIO exhaustively deal with them. Their
provisions are the focal point of the present chapter.
until World War
l-. nrc
AD
Hoc DIpLoMACy
Ad hoc missions occasionally sent by sovereigns to their
counterparts
were, as a matter of fact, the first forms of diplomacy.2 Not until the early
17th century did establishing permanent diplomatic missions abroad, also
called sedentary, begin to be general practice. This modern form of

diplomatic mission gained formal recognition in international law at the
1815 Congress of Vienna. The famous Vienna Regulation on the rank of
diplomatic agents was in reality the first, even though limited, codification
of diplomatic law.
Permanent diplomatic missions certainly perform functions of information and communication between States, better than ad ftoc missions.
With improved organization of Foreign Ministries and of diplomatic
services in the L9th century, ad hoc missions have fallen into disuse,
except for ceremonial occasions when the presence of a personal representative of a sovereign or head of State was required. Limited to purely
ceremonial functions, their status was considered to be governed not by
law but by international courtesy (commitas gentium).
During World War II ad hoc diplomacy again was to play an important
role.In wartime conditions special envoys were often charged with urgent
il-C, Yearbook,
197
l,vol. p.
4; Cahier (1 964), p. 362.
2 For an exhaustive historical background see Maresca (1975), pp.107-236;

also
Donnarumma (1968).
55
and delicate missions which could not be entrusted to embassies without

fear of enemy intelligence. After the war the complex problems of the
world in transition required governments to have specialists in various
fields rather than diplomats negotiating new solutions. In addition,
diplomatic missions were not able to cope withthe challenge presentedby
the growing number of international conferences, multilateral negotiations and new international organizations.
The growing practical importance of a d hoc diplomacy necessarily gave
rise to the quest for a firm legal basis. When the ILC was about to complete
its work on the codification of the law of diplomatic relations, it decided as already mentioned - to complement the draft Convention with three
articles on special missions. These additional articles contained a definition of special missions as well as a brief indication of the provisions of the
Convention applicable to them. When these proposed articles were
rejected by the 1961 Conference, the ILC began serious work on this
question. It resulted in 1969 in the adoption by the UN General Assembly
of the Convention on Special Missions.
The ILC had first to answer two preliminary questions.3 The first one
hoc diplomacy had any basis in existing international
law. The second concerned the exact limits of the concept of. ad hoc
diplomacy.
The answer to the first question was provided by the special rapporteur
who, after a wide-ranging survey of State practice, concluded on the lack
of continuity between the old and the new ad hoc diplomacy. As the latter
one was called upon to perform functions previously unknown, existing
international law could not adequately regulate them. The ILC, therefore,
was faced with the task of drafting a new international instrument entirely
devoted to ad ftoc missions, taking into account all new pertinent elewas whether the ad
ments.
The second question concerning the delimitation of the concept of. ad

because of the great variety of
temporary missions sent by States. As proposed by the special rapporteur,
the ILC first drew a distinction between temporary missions on the one
hand, and specialized permanent missions as distinct from diplomatic
missions, on the other. Next, the ILC adopted the limited duration as the
hoc diplonncy proved to be more dfficult
3 The fourth report on special missions by Mr. M. Bartos, special rapporteur, ILC,
Yearbook,1967, vol. II, chapters I and tr; also M. Bartos (1963) chapters I to IV. It should
be mentioned here that the final adoption of the Convention on Special Missions is mainly
due to the efforts undertaken by Mr. Bartos both as member of the ILC and as delegate of
Yugoslavia to the UN General Assembly and to the 1961 Vienna Conference on Diplomatic
Relations. It is an interesting exampte showing the influence an individual can have on
decisions concerning the whole international community by trying to have his ideas
accepted.
56
constitutive characteristic of an ad hoc mission, irrespective of whether it

was entrusted with important political functions or had to carry out
specific tasks in some technical relations with other States.4
The ILC further introduced two other criteria to identify ad hoc
missions. In the first place, members of such a mission had to be appointed
by the State. Secondly, they had to represent the State as a sovereign
subject of international law in its relations with another State, excluding in
this way transactions coming under private law.
Within these limits the term ad hoc diplomacy now refers to both
missions sent to other States in the framework of bilateral relations, and to
delegations attending international conferences and sessions of organs of
international organizations. Following a decision of the General Assembly, the ILC set out to draw up two distinct Conventions. One was to be
concerned exclusively with ad hoc missions in bilateral relations between
States. The second one, devoted to relations between States and international organizations, was to include provisions on delegations to international conferences and sessions of international organs. These two
categories of temporary missions shall now be studied separately.s
2.
spBcral MrssroNs
2.1.. The Diplomatic Character

The L969 convention on special Missions provides in its article
I a/ that
A'special mission' is a temporary mission, representing the State, which

is sent by one state to another state with the consent ofthe latterfor
the
purpose of dealing.yth
i! on specific questions or of perfonning in
relations to it a specific task.
This definition contains all the elements characteristi c of ad hoc

drplomacy discussed above.6 It mentions the representative character
of the
Todg", consisting in its appointment by de sending state.It points out
the element of sovereignty consisting in that the miisions represent
the
sate in its relations with another Stite, and not with private'lersons
or
orporate bodies. Finally, it stresses that the mission is both iemporary
and its mandate limited to ,specific, questions or tasks.
a ILC,, Yearbook,
1967, vol.Il, p. 25.
t
(1975)
discusses deiegations to internationar conferences in
Ygrr
his ryork on
tpecial missislg.
'
Maresca (1975), pp. 5-11.
57
Together, the four elements confer to the special mission its diplomatic
character in the broad sense of the word, and at the same time distinguish it
with precision from the perrranent diplomatic missions. By stating that it
'ts sent by one State to another State" the definition seems to limit it to only
bilateral relations. This, however, is contradicted by other provisions of
the Convention, namely by article 6, which mentions the possibility of

special missions being sent by several StateS 'tn order to deal together (. . )
with questions of common interests to all of them" which normally would
be considered as multilateral diplomacy.T
2.2. Functions of Special Missions

Bilateral relations. Concerning functions of the special mission, the
Convention follows the spirit of the above definition by stating that
the functions of a special mission shall be determined by the mutual

consent of the sending and the receiving State (CSM 3).
The consent may be implicit in so far as the functions of the mission follow
logrcally from its purpose as set in the agreement concerning its sending.
The special mission, in principle, is not supposed to take initiatives
beyond its mandate. Should such a case nevertheless occur, then the other
party may either voice its opposition or set a time-limit to study the
question. If by common agreement both delegations go beyond their
respective mandates and act ulta vires,their acts may be later ratified by
their governments. Finally, it often happens that ceremonial missions take
the opportunity to raise and discuss some important matters, either with
the host government or with other delegations present.8
Multilateral rehtions.Besides special missions acting in the framework of

bilateral relations, the 1969 Convention considers also more complex
situations which affect necessarily the functions of the missions concerned.
Article 5 makes provision for several States sending a common mission to
another State. In such a case, however, relations of the receiving State
remain bilateral with each one of the States represented by the joint
mission. This is why it can, when in principle agreeing to receive such a
joint mission, refuse to accept the participation of a particular State.e
Another situation provided for by article 6 occurs when several States
simultaneously send their missions to a third State,
7 Bartos (1963), p.463; Cahier (1964), p. 368; Donnarumma (1972),p. 38; Przetacznik
(1981),p.111.
8 Bartos (1963), pp. 493-495;Przetacznik (1 981), p. 1 1 3.
( 1 975), pp. 57 7 -585; Przetacznik (1 98 1), p. 1 1 7.
e Maresca
58
in order to deal together, with the agreement of all these States, with a
question of common interest to all of them.
This article was proposed by Mr. Ago, president of the drafting committee. His proposal was strongly criticized by some delegates in the 6th
Commiuee of the General Assembly, who were of the opinion that it
concerned delegations to international conferences and not special missions.lo
According to article 18 of the CSM, missions of several States meeting

in the territory of a third State may discuss questions of no concern to it.ll
In such a case
the third State shall assume in respect to the sending State the rights and
obligations of a receiving State to the extent that it indicates in giving its
consent (CMS 18 par. 3).
Such meetings of special missions in the territory of a third State may take
place either when the sending States do not maintain diplomatic relations
but wish to negotiate directly,l2 or when they want to hold a high level
meeting, but consider an official visit to be untimely. A good example of
the first situation were the Paris negotiations between the United States
and North Vietnam which led to the L97 2 agreements, or the USA-USSR
negotiations on nuclear arms limitations held in Geneva since 1"982. The
Reagan-Gorbachov meetings in Geneva and Reykjavik (1985 and 1986)
illustrate the second situation well.
Because the variety of functions of special missions is unlimited, the
CSM indicates only the way in which they should be determined, but tells
nothing about what they actually are. The different types of special
missions and their respective functions have been studied at length in Mr.
Bartos'report to the ILC.13
2.3.
Types of Specinl Missions
Several different criteria may be used to classify special missions.la They
can be grouped according to their respectile political, technical or

ceremonial character. They can also be classified according to whether
they concernbilateral or multilateral relations. The quality of its members,
10 Przetacznik, loc. cit.; Donnarumma
11
Maresc a (197 5), p. 66L.
(L97z),pp. 39-40.
tz Przetacznik (1981),p. LLg.

13 ILC, Yearbook, L967,vol. II, pp. 27-33;
,fl,
t4 Maresca
(1 97 5),
also Bartos (1,963),pp.470-488.

pp. 93-103 as well as Parts VII and VIII of his book.
#
#,
iH,
H
m
59
diplomats, ministers, members of parliaments, etc., can arso serve as a

criterion. Finally, it is possible to differentiate between special envoys and
missions acting as a group, often called delegations.
Referring to this last distinction a special envoy is an individual
entrusted with a specific task as a representative of a sovereign, a head of
state or qf_., government, a Foreign Minister etc.ls The envoy may be
accompanied by a staff, but he alone can act in the name of the person he
represents. Envoys are often sent for ceremonial purposes. Their rank
depends on political, protocol or even personal considerations. Highest
political personalities, top-ranking civil servants, diplomats, members of
ruling family, etc., can serve as special envoys. Exceptionally, several
the
important personalities may be members of one special misiion. For
instance, three former presidents of the usA represented president
carter at the funeral of Anwar el sadat, the murdered president of Egypt.
{ special envoy may be entrusted by the head of state with impoliant
political tasks. For instance, during world war tr Harry Hopkins,
personal assistant to President Roosevelt, negotiated in the litter,s name
with both churchill aqd stalin. currenfly, 'ambassadors at large,
appointed inthe same wa! asheads of diplomaticmissions, act as personal
representatives of American presidents. Such special emissaries of
American presidents were active in seeking peaceful solutions to Middle
East problems.l6
Special envoys may also carry messages addressed by a head of State to
-.
his
counterparts. They are not simple couriers, but often important
personalities who not onl_y deliver the written or oral message, but also
comment and discuss it.r7 This method used in the past by monarcfu is
again widely resorted to by heads of States in Africa.
The sgcond category is that of missions composed of several persons
and headed by one of them. They can be entrusied with negotiations and
other tasks of a political nature or be charged to deal with technical
problems. The use of such specialized missions is common practice in
international co-operation in the fields of culture, science, econ6my, trade,
communication, health, etc. special missions may also be entrusted to deal
with specific issues, such as boundary delimitation, search for and
repatriation of nationals of the sending state, search for bodies and
preservation of gravas of soldiers killed during a war, etc.
rs Maresca (1 97 5), pp. 547

-55616 For the practice
of States on this matter
Waters (1963) mainly on US practice.
17 Maresca
(1 97 5),p. 547.
60
see
whitemann, vol.7, pp. 33-47; cf. also
2.4. Special Missioru and Embassies
ffis
necessarily summarized survey shows the current importance of

special missions. By virtue of the CSM all of them, irrespective of their
composition and functions, belong to a particular category of diplomatic
missions. Thus, in international law all special missions and their

members, whether career diplomats, civil servants or politicians, are now
place! on the same footing, and their status is ruled by provisions of
diplomatic liw. This amounts to abolishing the traditional distinction
between diplomatic agents and other States' representatives, a change
which is not gladly accepted by all.This results from the diversification of
international relations which can no longer be considered as an exclusive
domain of diplomats. Anyone who is a member of a special mission for the
time of its duration, acquires the status of a diplomat.
The relations of special missions with permanent diplomatic missions of
the sending State may at times create problems.l8 These may concern, for
instance, their relations with the authorities of the receiving State. The
diplomatic mission norrrally insists on its functions of general representation and of co-ordination, whereas the special mission will stress the
specialized and specific nature of its functions, the exercise of which
requires direct contact with authorities of both the receiving and the
sending State.le
2.5. Specinl Missions of International Organizations

Some external missions of international organizations may also belong to
the category of temporarymissions, eventhoughtheir status will not come
under the same Convention. The United Nations have madeextensive use
of temporary missions on the grounds that their implicit powers rather

than of express provisions of its Charter. These missions have been
undertaken either by the Secretary-General himself or by his representatives. Thus, for instance, tn L954 the General Assembly requested
the Secretary-General to travel to Beijing in order to negotiate the release
of prisoners taken duringtheKoreanWar. More recenfly, duringthe crisis
of the American hostages, following a decision of the Security Council, he
visited Teheran in 1980. Representatives of the Secretary-General have
been dispatched to act in many crisis situations: in Jordan (1958), in the
Dominican Republic (1965), during the Indo-Pakistani conflict (1966), in
Cyprus and the Middle East (1967), in Equatorial Guinea (1969), in East
Timor (197 6) and in many other instances. It is obvious that in addition to
18 Bartos (1963), p. 518 et seq.; Maresca
re Bartos (1963),p. 469.
(1975),
pp.3t-4I
and 636-645.
6L
decision by the competent organ of the UN, the sending of these missions
also requires the previous agreement of the receiving States.2o
a
3. rnt
DELBcATToNs
Delegations to international conferences and sessions of international

organizations' organs constitute the second main category of missions of
subjects of international law. They belong therefore to the ad hoc
diplomacy, although as already mentioned, they are excluded from the
provisions of the CSM.
The present importance of this category of temporarymissions is due to
the development of multilateral diplomacy of which they are the main and
indispensable organs. Sent occasionally to international conferences and
congresses, their status inthepast depended ontheircomposition and was
founded on reciprocity. since the advent of international organizations,
delegations of member States are component parts of their collective
organs. It was therefore necessary to adapt their legal status to actual
needs.
A rudimentary provision of article 7, paragraph 4 of the covenant of the

League of Nations recognized the diplomatic status of representatives of
member states in the exercise of theirfunctions. A quasiidentical rule was
included in article 105, paragraph 2 of the UN charter. It also appears in
article rV, section 11 of the 1946 cpIUN and in article v or trri-cptsa.
Theinadequacy of this very concise ruleprompted the GeneralAssembly
to request the ILC to draft an instrument entirely devoted to this question.
This resulted in the adoption 1n L975 of the cRSIo which is not yet in
force.In addition, the functions of delegations and the ways of perfornning
them come under the internal regulations of the international bodies of
which they are the constituent elements.
The character of the delegation depends entirery on the nature of the
body or the meetinginwhichit participates. These bodies arenowdefined
in the introductory article of GRSIO, which, by the way, deals only with
organizations of a universal character, meaning the uN, its Specialized
Agencies and 'any similar organization whose membership and responsibilities are on a world-wide scale'. The expression'organ of an organization'means according to the Convention.
a/
b/
any principal or subsidiary organ of an organization,
any commission, committee
(cRsro 1,40.
or
20 See on this subjeo

Hardy (1969), pp. 51-55.
62
sub-group
or
of any such organ
The delegation to an organ is defined in point 1,0/ of the same article

being
as
the delegation sent by a State to participate on its behalf in the

proceedings of the organ.
It follows from the two definitions combined, that the common element of
delegations to sessions of organs is their representative character, meaning
the right to act on behalf of the sending State. All the other aspects of a
delegation can be determined only on the grounds of the specificity of the
organ itself and of its agenda.
The situation of delegations to conferences is similar. The authors of the
CRSIO did not find it possible or useful to define the term'conference'
except for stating that its provisions apply only to conferences convened
under the auspices of an organization of a universal character (CRSIO 1,
s/).
The temporary character of delegations is nowhere expressly mentioned as such. It is only stated that the functions o,f a delegation come to an
end trpon the conclusion of the meeting of the organ or the conference'
(CRSIO 69). Thus, the temporary character of a delegation results from
the ephemeral nature of meetings. The only exception to the temporary
character of delegations can be found in article 28 of the UN Charter
according to which members of the Security Council are under the
obligation to maintain a permanent representative at the seat of the
Organization so that the Council may be able to function continuously.
Regarding the functions of delegations, the 1975 Conventioh only says
that they are sent to participate in meetiugs of organs or in conferences.
Their specific activities, as mentioned already, are prescribed by the
internal regulations of the bodies concerned.
States may also send observer delegations to organs of international
organizations and to conferences (CRSIO 7L and72).
63
Chapter VI
Specrahzed Missions
L. rnn
PRoBLBM oF TAxoNoMY
Unlike missions discussed above, specialized missions are not mentioned

by conventional diplomatic law. Nevertheless they exist in practice. They
are missions of international law subjects sent to other subjects in order to
accomplish specific tasks in a given field. They can be viewed as temporary
special missions, even though they often function for long periods of time.l
As entities more or less distinct from perrnanent diplomatic.representations, they are established by mutual agreement, oftenwithout reciprocity.
They may be exchanged or established by one party only, depending on
the needs and interests of the parties concerned, on their economic
systems, etc. Most current in this category are economic, cultural, or
military missions. The'way they perform their tasks varies according to
countries and circumstances. The same is true of the relations between the
specialized mission and the permanent diplomatic representation of the
sending State, of its contacts with the authorities and nationals of the
receiving State, and of its legal status. This very diversity of specialized
missions does not allow for their precise classification. They can, therefore, be studied only case by case.
The only category of specialized missions to be dealt with here are
missions of aid and assistance to development. These missions have
different forms depending on the nature and choices of the sending
subject. They also have many common elements. Missions of assistance to
development are established by both States and international organizations in more than one hundred countries. The specificity of their
functions distingUishes them from not only other specialized missions, but
also from all the missions studied above. Their functions consist mainly in
operational activities agreed upon by the parties and aimed at enhancing
the development of the receiving country.2
Maresca(1975),pp.537ff.;Bartos(1963),pp.529ff.callsthem'permanentsper,idizet
missions'.
2 Maresca (1.975), p. 538.
,65
2. xo
AND AssIsrANcE MrssloNs oF srATEs
The establishment of a mission of aid and assistance in a given

country
alw-ays depends on the existence of an agreement of
co-operation and
assistance between thc two parties. Although these agr""-"oir."spect
the
principles of sovereign equatity and independencE of the partiis
they
nevertheless refl ect.a
ineguali ty r wogn.:,zed by both.3 ttre assistini
-reastate, mostlyindustrialized
and rich, agrees tohelp tiredevelopmentof the
other party by ploviding money andlechnicar know-how. fhis is
a one
way co-operation by wlich joint efforts of .both sides aim at
solving
problems related to the development of one of them, in whose
territory th!
corresponding activities take place. The role and functions of assistance
missions are shaped by this unequal relationship.
Most developed states now have co-operation and assistance agreements with rhird world countries, but only few have established
fulyfledged co-operation missions. Those of France and the united
States are
the most important.
2.'1,. French Missions of Co_operation
France has concluded a great number of co-operation agreements,

mosfly
with.her former coloniei. Aid and assistance offered riroer these
agreements have been administered for most of the time by the Ministry
oico_
operation.-In recipient countries this aid is managed by the donor,s
missions of co-operation.
Missions of co-operation are established by an exchange
of letters
taking place when the main co-operation agreements are
signeda. According to these documents
$9 French govemment appoints in its diplomatic
representation in the r.eoipient countrya person in charge of folloiving
the
drafting and the implementation ol financial and telhnical assistance
prograrnmes offered by France. The recipient
country agrees at the same
time to grant that person easy access to authorities iirptementing
the
assistance prograrnmes.
rn.actual practice'$"-p"-*oo in charge'is the head of the co-operation
mission, which formally belongs to the French embassy but in reaity
is an
autonomous entity. The role of these missions is
to provide upon request of the recipient countries an necessary

in drafting requests for aid; to collect information on the
assistance
3 Vaudiaux (L970), p.
127.
4 For instance, the
exchange of lette:rs of February 2lst LgT4between

the Ministry of
Foreign Affairs of cameroon and the Secretary of staie
in the French ror"ig, Mioirtry.
66
particular needs and difficulties of each country; to ascertain conditions

in whigh aid programmes are implemented and to follow closely the
execution of agreed projects; to administer technical assistance staif put
at the disposal of the recrpient countries.s
In the early 1,980s French co-operation missions were established in more
than 25 different countries. In developing countries where they do not
exist, their functions are perfonned by counsellors for cultural, scientific
and technical co-operation, who are on the embassy,s staff.
2.2. Missioru of the IIS-AID

American development assistance is administered by the Agency for
International Development (us-AID) which has missions esta6lish;d in
most recipient countries. The Agency was created by president Kennedy
in November L96L6 pursuant to the Foreign Aisistance Act which
Congress adopted earlier that year.7
The Agency is established within the state Department and is under the
authority of the Secretary of State. It is headed by an Administrator,
appointed by the President with congressional appioval. The powers of
the Administrator comprise the right to negotiate, cbnclude and terminate
interna-d9nal agreements concerning aid and assistance to development
granted by the United States.8
Iy gach country with which the us have concluded an agreement of
technical and economic assistance, ArD establishes its own nissions. The
authorities of the state of residence consider its personnel as belonging to
the diplomatic missions, although the ArD mission is separate and has its
own head. In countries where the volume qf aid is small, the AID has only
offices attached directly to the American embassy.
The AID mission, nevertheless is, in many respects, separate and
di-sfnct from the diplomatic mission.It is establishedby virtue of a clause
gf 4" assistance agreement concluded with the receiving country.e The
head of that mission is appointed by the president, l{e a head of a
diplomatic mission. He communicates direcfly with both washington and
the government departye_nts of the recipient country, bypassing imbassy
channels. As mentioned already, he negotiates ano cbnitudes alreements
on behalf of the Agency with the receiving government concerning all
s Ligot (L964),p.
L27.
6 Executive Order LA973, Legislation

on Foreign Relations,vol. I, p. 1ZBL.
ft" Foreign Assistance Act of 1 96L, in particular section 622, iiid., p. LlZ.
1
8 state Department Delegation
of Authority No 1 04, ibid.,p. zia.
e See below, chapter VlI,z.
67
f.rrry of aid, except military assistance, and deals with all aspects of their
implementation. Finally, unlike the ambassador, thehead

otitreen mission deals directly with all ministries concerned with Am progru-*o
erymple of these two countries illustrate the very speciit character
-Th9
of.aid and co-operation missions well. Unlike in the casl o? trr"
aipromatic
mission, neither the representation of the sending state in
a" t.iaitio"J
sense, nor the protection of its interests are among the
functions of a cooperation mission. on th9 contrary, their task, in a certain sense,
consists
in penetrating the administrative structure of the recipient
state
so
that it
-can fully and efficienfly take advantage of the aid provided.
There is an obvious-ambiguity to that situatio;. Formally,
agreements
concerning aid and the estabrishment of co-operation misslons
fuily
respect the sovereign
of the parties to wiich newly independent
"qyutity importance. In practice,
countries and states attachgreat
hoivever, most of
these agreements proyrde for an actiue participation
of representatives of
the donor colrntry in the internal process of divelopm""t
Jtrr" recipient
one. This, undoubtedly, is a form of interference in the internJmatters
of
country, which is expressly prohibited to normal diplomatic
$ .',1**t
mrsslons.
3.
assrsreNcE MrssroNs oF TNTERNATIoNAL oRcANIzATroNs
3.L.
The UNDp Resident Representative
In the case of international organiafisns, external missions concerned

with aid and.technical assistaice to states are certainly predominant.
Their tasks and functions are similar to those ,"ot uy -s'tult"r.
The only
difference is due to the nature of the sending subject.
Blcause the
international personality of internationd organizitiom i,
oJy functional
and not absolute, their involvement in the intErnal p.o""r,
ololuelopment
of assisted States is more easily accepted.

offices of ttre permanent representatives of the trNDp are the
most
important aid and assistance milsions of internatio""r org*irutions.
The
post of the UNDP resident representative has evolved
iccording to the
growing involvement of the utl in favour of developing
countriEs.,o ny
1987 UNDP resident representatives were posted in-more
than 115
countries.
The first 'representative of the secretary-General for
technical assis-
tance programmss' was sent to Haiti i,. r949.rafter

the Expanded
Programme of rechnical Assistance (EprA) *ur
tg50, it,
ro gse sa rhis question
Mangone (1966); Hart Schaaf (1960).
68
"r"utJi,
representatives were pelmanently stationed wherever it was active. Very

soon it became necessary to co-ordinate in recipient countries the
activities of Specialized Agencies having their own assistance projects.
The Technical Assistance Board (fAB), governing body of EPTA,

entrusted this task to liaison officers or resident representatives posed.in
recipient countries. In January L952,when these officials were already at

work in 15 countries, the TAB decided that their status and responsibilities should be the sarne everywhere. The ECOSOC, on its part,
proceeded with the reorganization of the UN technical assistance activities and authorized the Executive President of TAB to appoint 'Resident
Representatives'with well defined functions.11 This was later confirmed
by the General Assembly.
The functions of the resident representatives were, on the one hand, to
collaborate closely with the authorities of the country of residence in
drafting national plans for development and requests for assistance, and,
on the other, to co-ordinate activities of all organizations and bodies of the
UN system in the country of residence. After the General Assembly in
1957 decided to create the Special Fund, the representatives were also
called upon to control the agribution and utilization of its funds. Finally,
the UN Inforrration Centres came under their authority.
When in L964 the United Nations Development Programme (I'INDP)
was set up as a single organ in charge of all development assistance of the
Organization, resident representativas necessarily came under its dkect
authority.
The functions of the UNDP resident representatives were finally
defined with precision in article tr, paragraph 4 of the 1975 UNDP
Standard Basic Agreement with Governments.l2 The Standard Agreement provides that
the UNDP may maintain a pennanent mission, headed by a resident
representative, in the country to represent the UNDP therein and be the
princlpal channel of communication with the Government on all
Programme matters.
The resident representative, who on behaH of the UNDP Administrator
has full responsibility and ultimate authority for its prograrnme, is also the
team leader in regard to representatives of other UN organizations posted
in the country. Although the resident representative does not have formal
powers over local representatives of the Specialized Agencies, he is in fact
the head of the entire UN representation in the country of residence. The
11 Economic and Social Council res.433
Q(V) of June llthL952.
12 United Nations Development Programme (UNDP), doc. DPl107,of
April27th1975.
69
resident representative is furthermore in charge of maintaining liaison

with the appropriate organs of Government, which it has to assiit in the
preparation of its assistance prograrnme and of requests addressed to the
UNDP; he also assures proper co-ordination of uNDp activities with
national, bilateral and multilateral programmes within the country.
Two points deserve special attention here. The first is the character of
the resident representative as an organ of communication rather than of
pure representation. Secondly, because of his functions of assistance to the
government of the country of residence, he is involved in the national
decision-making process to a greater extent than the assistance missions
of
States.
3.2.
The EEC Delegates
EEC's co-operation missions were first estabrished after the yaound6I

convention came into force in L964. The 1984 Lom6 III convention,
binding the EEC with the ACP countries until 1990, provides in its article
Z28,paragraph 1 that
in view of the implementation of the present convention (..), the

commission is represented in each ACp country or regional group
requesting it, by a delegate agreed upon by the States concerned.
Thecommission's delegateis placed betweentwo centres of authority. on

the EEC's side it is the officialof the European Deveropment Fund (EDF)
who implements financial decisions and supervises the-utilization of nrnos
(art.226). ]he other is the official appointed by each ACp country to

represent the authorities of his country in all matters concerning the
utilization of funds provided by the E,DF (art.l2}).
The attributions of the EEC's delegate listeci in article 22g of the
convention are wider and more'interventionist'than those of the uNDp
resident representative. They concern four levels of co-operation between
the parties concerned. In the first place the delegate assiits the authorities
of the coxntry of residence in the choice, drafting and preparation of
projects financed by the EEC. Secondly, he supervises the nnancia ano
technical execution of these projects. Thirdly, with the authorities of the
recipient country, he participates in the evaluation of the executed
projects. Finally, heinformsnational authorities of relevantEEC activities
an9 ascertains specific diffrculties in the implementation of co-operation.
In conclusion it should be stressed that the uNDp and EEdmissions
are external agents of national flevelopment, who act in part within the
structures of the States concerned. This is a big change from the traditional
role and functions of external missions estabrished in foreign states.
70
Chapter VII
The Establishment of External Missions
The adjective'external'indicates that the mission, an organ of a subject of

international law, is established in the territory of a foreign State. The
creation of an administrative organ belongs entirely to the internal order
of the subject concerned. However, its establishment in the territory of
another State, its transformation and its closing down are necessarily
governed by provisions of international law.
The establishment of any external missio-n requires a previous agreement between the parties concerned. The form and substance of such
agreements vary according to the character of both the mission and of the
receiving subject. This is whywe shallfirst dealwithmissions accredited to
States, next with those sent to international organizations, then with
multiple accreditations, and finally with their transformation and closing
down.
1.. ecneeMeNTs coNcERNING MIssIoNs AccREDITED To srATEs
L.L.
The
Fonn
The CDR expressly states the principle that mutual consent of parties is
the legal basis for the establishment by a State of an external mission:
The establishment of diplomatic relations between States and of permanent diplomatic missions, takes place by mutual consent (CDR 2).
Article 2 of both tfre CCn and CSM forrrulates this principle in similar
terms.
The establishment of an organ of one State in the territory under the

sovereignty of another State constitutes a serious constraint for both
parties. The sending subject has its organ placed under the territorial
jurisdiction of another State, even though the actual exercise of the latter is
strongly limited. The receiving State accepts in its territory a foreigu body
7L
over which it cannot fully exercise its exclusive territorial jurisdiction. rn

other words, the establishment of an external mission seriously limits the
exercise by the sending state of the personal, and by the receiving one of
the territorial jurisdiction.
The afore-quoted article 2 of.the cDR makes a distinction between the
establishment of diplomatic relations and of diplomatic missions, both
based on mutual consent. In this respect the ccR is even more e4plicit and
devotes a separate article to each. Assslding to article 2 the establishment
of consular relations may result either from a specific agreement or, by
implication, from the establishment of diplomatic relations. Articles 4 and
69 deal with the establishment of consular posts.l
The sending of a special mission is a different case.It is an autonomous
act, independent of the existence or non-existence of diplomatic relations
between parties, and has no legal effect on their mutual relations. This is
why
a state may send a special mission to another state with the consent of
the laffer, previously obtained through the diplomatic or another agreed
or mutually acceptable channel (CSM 2).
The ILC refused to include in the article the requirement for the consent to
be explicit, because, in actual practice, it is often expressed infonnally or
even tacifly. For instancg some ceremonial missions attending funerals

may be sent even without receiving any forrral invitation.2
1.2. The Content

The content of agreements concerning the sending of external missions
varies according to problems specffic to each type of mission. The first
problemis thelevel of themission and the diplomatic rank of its head. The
traditional distinction between embassies and legations having been
abandoned in law and practice, only the diplomatic rank of the heads of
diplomatic missions has to be agreed upon (cDR 15). The classification of
the newly-created consular post is to be decided on by the sending state,
but hastg be approved by the receiving one (CCR 4 pat2).
The state receiving a perrranent diplomatic mission
1-con 11) or a
speclalmission (csM 8)has asay as to its size.Inorderto avoid anyiuture
misunderstanding in this matter the parties often include in the agreement
on the establisbment of missions a provisionconcerning their size.
The setting-up within an existing diplomatic mission of specielizsd
I ontheestablishmentofconsularrelations,cf.Lee(1966),pp.25-30and41-50.
-2 ILC, Yeorbook, 1967, voL II,p. 44 Bartos
(1 963), p. +gi.
72
services exceeding its normal functions, requires the consent of the

receiving State. This applies to both the US-AID missions3 and the French
co-operation missions (cf. above, chapter YI,.2).
Because special missions in general accomplish a wide variety of tasks, it
is required that in each case 'the functions of a special mission be
determined by mutual consent of the sending and the receiving State'
(CSM 3). As a rule this consent is expressed in the agreement on the
sending of the mission.
1.3. Missions of Intemational Organizattions

Missions of international organizations to States are established according
to somewhat different rules. Three different situations have to be envisaged. The first is that of missions of representation of an organizatiron to
non-member States, e.g. EEC's missions in Washington or Tokyo. The
agreement between the organization and the receiving State has then to
indicate the type of mission, its rank, its size, and its status granted by the
receiving State. Thefunctions of thatmissionhave.also tobe defined inthe
agreement in such a way as to exclude any possible confusion with
functions of the diplomatic representations of member States of the
organization accredited to the receiving State.
The second situation is that of the missions which an organization sends
to its own members, for instance the resident representative of the UNDP.
His functions are operational, related to specific activities of the organizationinthis field of development assistance. The agreementonits establishment has to specify its functions and its status. Such is the case of the
UNDP Standard Basic Agreement referred to earlier. The provisions of
that agreement concerning the status of the resident representative are
nearly identical with those of the CPIUN. The inclusion of these provisions in the Standard Agreement confers on the UN, which is not party
to the CPIUN, subjective rights directly opposableto the receiving Statein
matters concerning the status of its staff.a
The third case is that of 'delegates'which the EEC accredits to the ACP
States, parties to the Lom6 Convention.Its article 228 provrdes directly
for the sending of these delegates and no special agreement, therefore, is
necessary. Nevertheless, it grants the receiving State the right to express its
consent as to the person appointed as delegate. The same article defines
thefunctions of the delegate.
A special case is that of delegates of the ICRC (cf. above, chapter III, 4,
3 For instance, paragraph 8 of the agreement between the US and Cameroon of May 26th
1961, TIAS 4808.
a Marchisio (1 97 7), p. 285.
3). The latter concludes with the States concerned

forrral seat agreements
which can be considered as international agreements
2.
BsrasLrsHMENT oF MrssroNs
ro
INTERNATToNAL oRGANrzATroNs
The Triangular Relationship
Missions accredited to international organizations necessarily

reside in
the territory under the sovereignty of a tlird state
and noi;i th" receiving
subject. This creates.a triangular relationship i*rr"i"g
tir" siu," sending
the mission, the receiving organization and thg host
st T"oitt ut organiza_
tion.s
The agreement between the international organization

and the host
^
state,
called the headquartersagreement, forms iir" uur"
ottt at triangre.6
hea$ryTters agreement stipulates that, among other
things, the host
State shall freely admit in its territory delegations
i"o p"*r*.i"t missions
of member States, and grant them identical or at least
similuiriutu, to that
of diplomatic missions. The headquarters agreement is
bilatera and does
not create any direct legal ties between the host State
and the missions of
the organization.
Direct legal links established by the cpIUN and cprsA
between the
host State and the members of the organization
constitute one of the arms
of the.triangle. State parties to thesJinstruments accept
,"
sentatives of member States to that organizatio"
and
immunities. As a result the host state is tinder
the ourigutiorito respect the
status-of the delegates and representatives of all
memEer states.
In
. thethird place, there is the direct relationship
organiza-
s;i.;r;_
;;;;;ivleges
brt*";trr;
tion and each one of its members. Memb".rhip or an iniernationa

organization means th{ delegates and representatives
of the member
state take part in its work according to the .rirles .f
th; .;;;;on, which
comprise its'constifuent instruments, relevant decisions"and

resolutions,
and established practice of the organization, (CRSIO
L.34hThe provisions of the cRSIo concerning tir" ertautis't-eirt
of missions
organizations are based on a constant practice of
-1?T:,ional
more
P tnirry years. This
practice alone is the source of cusiomary norms
of
international law, bind_ing on member states i"o"p""J""i^;fh"
coming
-r-------- "^
F*
intoforceof
theCRSIO.
According to the relevant provisions a member State

s El-Erian (1980), pp.
479-484.
lj::::jf:tfl}:rN':lasreements wirh the uS orJune zTth ts47,with switzertand

*TffiH"r"*,Yl:"og:"^"j,o:"*1of
?"::-9-",y1tr,rcii,-i.uff
with
France of July 2nd 1.g54.See also cahier
(195g).
iio#;;"il;:
74
may, if the rules of the Organization so perrrit, establish permanent

missions for the perforrrance of functions mentioned in article 6
(CRSIO 5 par.l).
as
well as to
send a delegation to an organ or to a conference in accordance with the
rules of the Organization (CRSIO 42patl).
It is clear that in both cases the decision of the member State is unilateral
and discretionary, and, therefore, neither the consent of the organization
nor of the host State is needed (CRSIO 79, 80).
The 'rules of the organization' referred to, comprise its constituent
instrument and its decisions. But the UN Charter and the constitutions of
the Specielized Agencies make provision only for delegationi and not for
perrranent missions. This omission has been remedied by the L948
General Assembly's resolution 257 F\ formally inviting member States
to establish permanent missions at the Organization's headquarters.

By CRSIO's article 5, paragraph 2 non-member States otthe organaatiron are allowed to establish permanent observer missions, provided that
'rules of the organization'so perrrit. Thepractice on this point is that the
observer status of a State or other body applying for it, first has to be
granted by the competent ofgan of the organization.
2.2. Relations with the Host State

permanent mission to an international organization
also concerns its host State, in whose territory the mission has to be
located. Following a constant practice of States in this field the CRSIO
The establishment of
states that
the rights and obligations of the host State and of the sending State
under the present Convention shall be affected neither by the nonrecognitionby one of those States of the other Stateorof its government
nor by the non-existence of the severance of diplomatic or consular
relations between them (CRSIO 82).
In order to make up for
a possible
lack of relations between the two States
the Organization shall notify the host State of the institution of

prior to its establishment (CRSIO 5 par. 3).
mission
This notification allows the host State to exercise a certain control in

matters related to the establishment of the mission. For instance, its
75
cgnsent is required for having the mission established outside

the locality
wh9ry the organizationhas its headquarters (CRSIO 1g).
with regard to delegations to international conferences two different
situations may arise. All questions concenring a conference which
is
convened at the seat of the organization come under the provisions
of the
headquarters agreement of the organization. when, onthe other hand,
the
conference is to be held elsewhere, a seat agreemdnt for it musi
be
concluded between the convening organization ano ae state concerned.
This agreement, direcfly or by reference to other instruments, deals
with
the status of delegations to the conference.T
2.3.
Missions of International Organizations
Missions exchanged byinternational organizations are subject

to other
rules. Most agreements binding organizations of the uN system
contain
clauses of mutual representation providing for the exchange
of liaison
Accordingly, most Specialized Ageicies maintain srich offices in
-o_ffi.gl
New York and Geneva.s But both the sending and the receiving
tions aie located in the territories of their respective host States. The
"r;*ir;
status
of international civil servants on officialmissions is the sameinallmember
States
9f the organization. No special provisions are therefore needed.
The legal basis of EEC's misiions to other international organizations
vary from case to case. The attendance by EEC,s observers
at'sessions of
the oECD's council of Ministers is baied on article 13 oi the
latter,s
constituent act and its additional protocol.ILo, uNESCo,
cEpAL and
organizations have formal agreements with the EEC. within
ryT:jqer
GAT'[ the EEC has the status of a contracting party which allows its
delegation to participate ftrlly in all meetings ana negotiations.
Finally, the
presence of EEC observers at meet'ngs of otherorganizations
resultsfrom
exchanges of letters between the nBC commissioi and
the secretariats of
the organizations involved.e
3. uurrrpre
AccREDrrATroNs
3.L. Diplomatic Missions

The term'multiple accreditation', unknown to classical doctrine,
is used
when the s:rme person or mission either represents a state
in several other
7 For instance, the
UN agreement with Austria of February 22nd L975 conceming the
Conference on RSIO, UN ,IanZlca I yearbook L97 5 p . lL
,
,
8 Dupuy (1 960), pp. 470-47
5; cf. also International G"nera 1 965 p. 226 ar,d 244.
e Raux (1 966), pp. 7
52-t 55.
_
76
or represents several States in a single one. The wording of the

Convention seems to indicate that this term applies only to the person of
the hea{.of mission. In actual fact, multiple accreditations concern the
whole mission and its functions.
Multiple accreditations are now cornmon practice.They contribute, in
effect, to a rational use of human and material resources of the Foreign
Ministry of the sending State. But they require the consent of the receiving
States,
State.
The relevant provision of the CDR reads as follows:

The sending State may, after it has given due notification to the receiving
State concerned, accredit a head of mission or assign any member of the
diplomatic staff, as the case may be, to more than one State, unless there
is express objection by any of the receiving States (CDR 5 par. 1).
This implies that the consent of the States concerned may be expressed
tacifly. Paragraph 2 of the same article is even more important:
If the sending
States,
it
State accredits a head of mission to one or morebther

may establish a diplomatic mission headed by a chary6
d'affaires ad
inteim in each State where the head of mission has not his
permanent seat.
The above provisions address two different situations. The first one
occurs when one mission and its head represent the accrediting State in
several other States. This allows the sending State to maintain with those
States diplomatic relations without having to establish diplomatic missions, except in the State of residence. The ambassador seldom visits the
countries of accreditation, most of the time only to present his credentials
and then to leave. This type of diplomatic relations is a way of maintaining
friendly relations between two States when the low intensity of their
mutual relations does not justr{y the exchange of permanent missions.
The second situation is that of a permanent diplomatic mission headed
by a charg6 d'affaires ad interim (a.i.). Missions with embassy rank but
without a resident ambassador have now replaced the former legations,
which used to be diplomatic missions of lower rank. They are normally
small missions with a limited staff which does not jrsttfy the permanent
presence of an ambassador.lo
The CDR makes provision for still another type of multiple accreditation by stating that
10 Conceming the practice
of Switzerland, see
A5D1,1.981, pp. 262-264.
77
two or more States may accredit the same person as head of mission to
another State, unless objection is offered by the receiving State (CDR 6).
This new provision, unknown in customary diplomatic law, refers to either
several diplomatic missions with one common head, or one mission
common to several States.ll Only very exceptionally has this been used in
actual practice.
Quite frequent, though substantially ffierent, is the case of a diplomatic
mission representing a third State in the State of residence. In most cases
this representation is limited to administrative matters, such as issuing
entry visas.
3.2. Consular Posts

Similarly, the CCR provides that a consular post established in one State
may exercise consular functions in another, if the latter does not object to
it. This may be the
case when the sending State has no diplomatic

representation in that State orwhen such a representationhas been closed
down(CCR7).
The CCR allows a consular post to perform consular functions on
behalf of a third State, provided the State of residence does not object
(CCR 8).In addition, according to article 18 of the CCR, several States
may appoint the same person as head of their respective consular posts,
which in effect amounts to creating a joint-consulate.
3.3. SpecialMissions
The issue of multiple accreditations may also concern special missions,
although the terms are somewhat different.12 Article 4 of the 1969
Convention, added to the ILC's draft at the last moment, provides that
a state, which wishes to send the same special mission to two or more
States, shall so inform each receiving State when seeking the consent of
that State.
This article was deemed necessary for two reasons. In the first place, it was
noted tfrat it wns common practice to send one mission, whetirer political
11 Moussa
(1972) devotes to embassies common to more than one State a whole chapter
@p. 337-350), which is based on the practice of several African States (vory Coast, Upper
Volta, Dahomey, Togo), of Barbados and Guyana
t2 LC,Yearbook,1967,voL["pp.Sl-S2;Bartos(1963),p.498;Przetacznik(1981),
p. 115.
78
or technical, to several countries in the same region. Secondly, it was

thought that in such cases a prior consent of all States concerned was to be
required, because anyone of them might not wish to receive a mission
which before had visited a particular country. A State may also consider
unwelcome a mission, the members of which have expressed views in
another country, or taken stands it disapproves of. For instance, at a
certain time India refused to receive goodwill missions, which had
previously visited Pakistan.
Apart from such exceptional situations, it is very co[lmon for one
special mission to visit several countries. such is the case when a head of
State undertakes a tour of a particular region, when special envoys visit
countries involved in a conflict or when commercial missions visit several

neighbouring States in a row.
3.4.
Missions to Intemational Organizations
Firyrlly, multiple accreditations may be used in situations concerning

missions to international organizations. on this point the cDR says that
a head of mission or any member of the diplomatic staff of the mission
may act as representative of the sending State to any internationat
organization (CDR 5 par. 3).
This implies that the consent of the state of accreditation is not required
for such an arrangement. The international organization concernedii also
bound to accept it, provided that certain rules are respected. This type of
multiple accreditation, therefore, is very collmon, especially in state
capitals which host international organizations, like paris, Rome or

Brussels.
The opposite arrangement, whereby a mission to an internationat

organization also represents the sending state to another State, is not
generally accepted. The question arose in Swizerland, where certain
states sought to accredit their permanent mission to the uN office in
Geneva and also to the Swiss governmentinBern. Thelatter, however, has
systematically demanded that missions accredited to it have their seats in
Bern and not in Geneva.l3 In actual practice some States timit their mission
inBern to a very small permanent office.
Finally, it is possible to accredit the same mission to several international organizations. This practice is common, especially in Geneva
which is the seat of many organizslisns of the UN system. Swiss authorities
request member States to have only one perrranent mission accredited to
13 Les Missiorx Perrnaruntes,vol.
I, p, 141.
79
T"
all organizations seated in Geneva. This aims at keeping the number of

foreign missions established in that small city within certain reasonable
limits.r4 Article 8 of the CRSIO admits this practice as well as the
possibility for one person to serve as the head of perrranent missions of
several States or to have multiple functions (CRSIO 75).
4. rnB
ALTERATToN oF AN EXTBRNAL MIssroN
4.1.
Change inStanu
The alteration of an external mission can take three different forrrs: the
mission can change its character, change its rank or undergo internal
transfonnations concerning its organization, its methods of work, etc.
The change of character of amission means its transitionfrom one legal
category to another. For instance, a special mission may become a fullyfledged diplomatic representation, a delegation to an organ of an international organization may be established as a permanent mission, or a
consular post be transformed into a diplomatic mission. Although in all
those cases there is continuity,legally this constitutes a rupture. Mutual
consent of the parties, necessary for the establishment of every external
mission, defines - as already said - the specific elements which detennine
the character of the mission. A change in any one of these elements
requires a new agreement as the basis of the new mission, having functions
and status different from the former one.
Alteration of the character of a mission by a unilateral decision of the
sending State may create diplomatic incidents as shown by the following
case.
After France had recomized the government of the Peoples Republic of

China in January 1964, the Paris embassy of the Chinese nationatist
government announced that it would become the permanent mission to
UNESCO where it still officially represented China. French authorities,
nevertheless, requested that the premises of the embassy be handed over
to the representatives of the newly recognized Chinese government and
offered to provide the mission to UNESCO with new facilities. As
repeated requests remained to no avail, on March Lzth L966 the French
Foreign Ministry called in police, who occupied the premises of the
embassy and without incident handed them over to the mission of the
Peking government. Both the head of the Taiwan mission and UNESCO's
Director General protested to the French government.
The French action was certainly perfectly legal. Since France had
14
80
lbid.,p.142;
also Maresca (1979), pp. 899-908.
withdrawn its recognition of the nationalist govemment, the mission had

lost by the same token the right to keep the building owned by the Chin6se
State.ls Moreover, by virtue of article 22 of.the CDR, French authorities
were under the obligation to protect and hand over to the legal representative of the recognized government all property of the Chinese State.
At the same time, by offering to provide the mission to UNESCO of the
Taiwan government with new adequate premises, the French government
was discharging its obligations under article 18 of the UNESCO headquarters agreement.
Since practically all diplomatic missions have now the rank of embassies, they cannot be upgraded. As already noted, embassies of
secondary importance are presenfly headed by a charg6 d'affaires. They
can be upgraded by the appointment of an ambassador to head them. This
depends on a unilateral decision of the sending State, and the receiving
State has only to grve its agr4ment to the newly appointed ambassabor. In
such cases the status or rank of the mission is not affected and, therefore,
the character of the mission does not change.
Different ranks of consular posts continue to exist in both law and
fracticve. The rank or class of the consular post is decided by the sending
State but has to be approved of by the receiving one (CCR 4 p ar. 2 arld 69).
Any change of class must necessarily follow the same procedure.
4.2.
Change in Strucatre
Internal changes of the mission's structure regard the receiving State only
as long as they do notviolate the agreement concerning its establishment.
Thus, the consent of the State of accreditation will be necessary for the
mission to establish ofEces in localities outside its seat (CDR 121'CCR41'
CSM 1 7; CRSIO L 8). The same applies to an increase in the mission's staff
when its size was agreed upon earlier.
Unusual transforrrations of missions may take receiving States by
surprise. Such was the case of Libyan diplomatic missions. In September
'1,979,in a spe,gch marking the first anniversary of the 'Libyan revolution',
Cotonel Gadatr appealed to Libyan students and workers living abroad to
take over control of the Libyan diplomatic missions. As a result Libyan
embassies in several major capitals (Athens, Bonn, London, Madrid,
Paris, Rome, Washington), were replaced by'people's bureaus' of five
members, headed by a secretary.
Even though this action was contrary to the spirit of the 196L Convention, the majority of the States of accreditation concerned did not react,
except for several African countries (Senegal, Niger, Nigeria, Mali and
ls
Chronique, RGDIP, L966, p. 7 4O;ILC, Yearbook, 1967, vol. lq pp. 2Ol-202.
81
upper volta) yl".r:g"nted Libya to crose down

its missions and
repauiateits staffs within 4g hours.li
This unusuar transformation of diplomatic missions
into :people,s
bureaus' was to raise the dtfficult quotioo
of the status of their staffs In
fact, several months
to
$e gri*rr
request the deparrure fter
from London of ihe
people,s
bureau', fg,"d it impossibre to declare him.percona
non grata,the person
gnjoyrng diplomaric starus. After due notifr"ti"o, lro*"uo,
1rot
-'---'
":"TP:g
the
official left Britain within the set
g"u"*";'il**'i*ded
t*o.iirr" iiui.i
time_limit.rz
:_ lbid.,1980, p.658; 1981, pp .187 and 557.

" Ibid.,198l, p. 1137.
82
Chapter VIII
TheMaterial Setting of theMission
The establishment of an external mission in the territory of the receiving

State requires certain material arrangements necessary for its existence
and functioning. The present chapter deals with provisions of diplomatic
law relevant to these arrangements.
L. rne
SBAT oF THE EXTERNAL MIssIoN
The CDR does not say explicitly where the diplomatic mission should be
located. Nevertheless it is certain, and the ILC has pointed it out in its
commentary, that diplomatic missions are established in the capital of the
State of accreditation, and, more exactly, in the locality which is the seat of
its government. The 1961. Vienna Conference did not follow the Swiss
proposal to insert in the Convention a specific provision to that effect,
leaving the parties free to agree on other arrangements.l
The CSM, on the contrary provides, that if the parties have not agreed
otherwise, then the mission should have its seat'in the locality where the
Ministry of Foreign Affairs of the receiving State is situated' (CSM L7 par.
1. afi 2). Finally, the t975 Convention stipulates clearly that permanent
'missions should be established in the locality where the Organization has
its seat'(CRSIO 18).
The rules concerning the seat of missions have to be flexible so as to

allow States to adapt to particular situations. For instance, in States where
not all the high authorities are located in the capital (e.g. South Africa or
The Netherlands), diplomatic missions have their seats where the government is located, and more precisely the Foreign Ministry. Diplomatic
missions also follow that ministry in cases of forced evacuation.Israel is a
special case. Since 1950 its government has been established in Jerusalem,
but because its sovereignty over that city is not generally recognized, many
diplomatic missions have kept their seats in Tel Aviv.
Conference on Diplomatic Relations, Official Documents, vol. I, p. 136; vol. tr, p. 19.
83
Transfers of State capitals generate special problems. For instance,,

when the German Federal Republic was created tn L949, its capital was
'provisionally'established in Bonn, awaiting its final transfer to Berlin. At
that time Bonn was a small provincial town and the federal government
agreed that most of the diplomatic missions be established in Cologne - a
big crty close by. With the steady growth of Bonn, many diplomatic
missions transferred their seats there on their own initiative. Those who
seemed to drag their feet, Switzerland among them, were finally invited by
the German government to follow suit.
When the capital of Brazil was transferred from Rio de Janeiro to

Brasilia, the government set September L972 asa deadline for the transfer
of diplorptic missions to the new capital. Because of the climate, logistics
and other reasons many missions were reluctant to move to the new,
scarcely populated city. One month before the deadline expired and 28
diplomatic missions still had their seats in Rio, the Brazilian ggvernment
officially announced that diplomatic missions not havingfmoved to

Brasilia on time, would be struck off the diplomatic list and refused
diplomatic status.2 All missions complied with this not very diplomatic
pressure.
As already mentioned (cf. chapter VII) the Swiss government refuses to
grant accreditation to missions located in Geneva.In addition, it demands
that pennanent missions to international organizations seated in Geneva
also be located in that Canton.3
The seat and consular district of a consular post located mosfly outside
the State capital
shall be established by the sending State and shall be subject to the

approval of the receiving State (CCR 4par.2).
Finally a provision common to all the igstruments discussed requires the
explicit consent of the receiving or host state; whenever there are to be
established
offices forming part of the mission in localities other than those in which
the mission itseHis established (CDR 12; CCR a; CRSIO 18).
As to a special mission which performs its functions in different localities

2 Chronique, RGDIP, L973,p.793. Certain States, for instance in
the US, require that
even members of foreigr missions live in the capital, see Whitemann, vol, 7, p. 9.
3 Les Missioru Permanentes,vol.Irp. L4L.
84
the states concerned may agree that it shall have more than one seat
from among which they may choose one as the principal seat (CSM 17
par.3).
It is important to stress here the functionalist character of both the

provisions and the practice concerning problems related to the seat of
missions. The state of residence or the receiving international organrzation may require foreign external missions, which primarily are organs of
communication, to be constantly within'the immediate reach of the
receiving government or secretariat and even put it as a condition for
Eanting diplomatic status.
2.
pnBurses AND AppARTMBNTs
All
external missions, except for special missions of short duration and

delegations to brief meetings, need pennanent premises in order to
function normally. Most missions of short duration use the premises of
their permanent diplomatic missions.
The cDR carries a definition of the premises of the mission which has
also been included in all later instruments:
The'premises of the mission'are buildings or parts of buildings and the

land ancillary thereto, irrespective of ownership, used for the purpose of
the mission including the residence of the head of mission (art. 1 of
CDR, CCR and CRSIO).
This clear definition, nevertheless, raises a number of important questions.
Firsfly, it is stated expressly, that to be considered as 'premises of the
mission buildings or their parts need not be owned by the mission, but
misht be rented. Then the question arises at what time do they become
'premises of the mission'? The expression hsed for the pr.por"r of the
mission'does not tell whether they have to be effectively occupied by the
mission or whether a legal title, a contract of rent or purchase, is sufficient.
Both law and practice leave these questions open. If a dispute arises, t\e
parties have to try to find a just solution taking into account circumstances
specific to the case (cf. below, chapter XVItr, 4).
The State of residence has a number of specific obligations towards
premises of foreign missions, to be studied later. As a counterpart the
sending State has also one important duty:
The premises of the mission must not be used in a manner incompatible
with the functions of themission as laid downinthepresent convention
85
or by other rules of general international law or by any special agreements in force between the sending and the receiving State (CDR 41
par . 3; CSM 47 par . 2; in the same sense also CCR 5 5 par. 5 and CRSIO
77 par.3).
Any violation of that obligation permits the State of residence to ignore the
diplomatic status of the premises of the mission.
According to common practice, the location of the premises of diplomatic missions and of consular posts as well as of private appartrrents of
their staff are normally notified to the authorities of the State of residence.
This practice has been transforrred into a legal obligation in the case of
special missions as well as permanent missions and delegations to inter=
national organizations and conferences (CSM 11; CRSIO 15 and 47).
This obligation of the sending State is easily justified by the mobility of this
type of mission which makes their protection by the receiving State more
difficult. The absence of such a noffication may be used by the receiving
state as an excrrce if not a justification in cases when the diplomatic status
of the premises has been violated.
The receiving of the host State
1. ... shall either facilitate the acquisition on its territory, in accordance

with its laws, by the sending State of premises necessary for its mission
or assist the latter to obtain accommodation in some other way.
2. It shall also, where necessary, assist missions in obtaining suitable
accommodation for their members (CDR 21; CCR 30; CRSIO 2L,52;
and in similar terms CSM 23).
This obligation is particularly important in countries and cities where

accommodations are scare or where the acquisition of property is
restricted.In Switzerland, for instance, diplomatic missions are exempt
from legal restrictions on acquisition of property by foreigners.a
3. urlNs
oF TRANsPoRT
According to the four conventions under study, the status of the means of
transport of the mission and of its head is sinrilar to that of its official
a ByvirtueoftheForeipMissionsActsigredbyPresidentReaganonAugust24thig82,
an Offrce of Foreigi Missions was set up within the State Department. It is charged with
selecting buildings in which
can live, rooms which they can occupy, etc.
This measure has been taken and was intended to be used ss 1sffiatign agninsl missions of
States, most notably the Soviet Union, which impose administrative harassments on foreign
missions,aspeciallyAmerican-d. InternatiorulHeraWTributu,Octoberlst, 1982.
foreign
86
premises. This means of transport of the other members of the mission

enjoy the protection due to their property (CDR 22par.3 and 30 par.2;
CCR 31; CSM 25; CRSIO 23 and,59). The term'means of transport'is

sufficienfly wide to cover motor vehicles, airplanes and boats.In everyday
life the special status of motor vehicles belonging to diplomats, easy to
recognizeby theirlicenceplates, is one of themost appreciated diplomatic
privileges but also the most frequenfly abused by diplomats and their
families (see below, chapter )O( 6).
4. rnr
FLAGAND BMBLEM
All types of external missions are now expressly allowed to use the flag and
emblem of the sending State on their premises and on their means of
transport, including those of their heads (CDR 20; CCR 29; CRSIO 19).
In the case of special missions this right extends to all their vehicles when
used for service purposes (CSM 19). On the other hand, the flag and
emblem of the sending State can only be placed on the official premises of
the special mission, but not on the residence of its head. Finally, special
missions whichmeetinthe territory of athird State canusetheflag andthe
emblem only when they are expressly permitted to do so (CSM L8 par. 3
with 19 par z).t

The right of missions other than diplomatic representations to use the
flag and emblem shall be exercised with due regard 'to the laws, regulations
and usages of the receiving State'(CCR 29 par.3; CSM L9 par.3; CRSIO
1.9 par. 3).By virtue of this provision the receiving State can, for insf4a6s,
in situations of internal tensions and for security reasons, request certain
missions not to use their respective flag or emblem.6
5 Donnarumma (L972), p. S3;Przetacznik (1981), p 132.
6 Whiteman, vol. 7, p. 398.
87
ChapterIX
Termination of an External Mission
An external mission can come to an end either in the course of normal

relations between the subjects of international law concerned, or be a
consequence of a decision to sever diplomatic relations, or result from an

armed conflict. These situations have to be studied separately.
L. Norq-coNFLIcruAL srruATroNs
1..1. Withdrawal of Diplomatic Missions
when relations between subjects of international law are normal the

partias concerned may at any time agree to put an end to the exernal
mission. Even though this is expressly stated regarding special missions

alone (cSM 20 il), it certainly also appries to at otheitlpes of external
mrsslons.
A State can also decide unilaterally to terminate or to withdraw

temporarily any of its external missions. Because the establishment of an
external mission is a right and not a duty of the sending state, its
withdrawal can never be considered as violating a right of the receiving
State.
The reasons for a pennanent or temporary withdrawal of an external

mission are mosfly practical. For instance, in 19gl,, as a matter of
economy, Great Britain closed down a number of its consulates and
Poland did the same with several of its diplomatic missions of secondary
importance. Security reasons, on the otheihand, prompted theAmerican
government lfn1975 to close down its embassy in Kampala and recall its
entire staff after the U_gandan govemment expelled six marines in charge
of its security, and other harassments made its norrral work impossibL.
The State Deparhent, however, made it clear that it did not intend to
sever diplomatic relations and left the ugandan ambassador free to
continue his functions in Washington.r
1 Chronique, RGDIP, 197 p.
5,
2OO;Denza (1976), p.
m"
lg.
L.2. End of Temporary Missions

Temporary external missions, namely special missions and delegations,
nonnally end when they have completed the task for which they were
established.
Independenfly of the will of the sending State, delegations and their

functions end at the closing of the session of an organ or of the conference
they were attending. This practice of States is now sanctioned by CRSIO's
article 69b/.If, for some reason, the sending State wishes to extend
beyond that time the stay in the host State of the missions or of some of its
members otherwise than in their personal capacity, it has to seek a new
official legal basis. This may seem to be an irrelevant point, as in most cases
thehost State willnot object to members of amission simply staying onfor
some time. Problems may arise, however, if an incident involving the stafus
of theperson concerned occurs during such aninfonnal extension.In such
a case, if no official eXensionof the stay has been granted bythehost State,
the person involved cannot claim the status of member of a delegation of
the sending State.
Three other specific causes putting an end to a specialmission arelisted
in article 20 of the CSM.2 The first one is the completion of the task of the
special mission. Indeed, the mission comes to an end when it has achieved
its objective agreed upon by the parties at the time of its sending. But it is
not always easy to tell exacfly when the purpose of the mission has been
effectively achieved. This may lead to a situation where the receiving State
is of the opinion that the mission has already completed its tasks, whereas
the sending State maintains that it has not. This is a type of dispute to which
the optional protocol of the CSM applies (see below, chapter X)ilf).
The same article in the next paragraph states that the functions of the
special mission cornes to an end upon
the expiry of the duration assigned for the special mission, unless it is
expressly extended (CSM 20, par L c).
The requirement that the extension of the duration of the mission be

explicit is important. It means, in effect, that the sending State can never
invoke a tacit extension, even if the receiving State has raised no formal
objections to thepresence of themissioninits territory afterit shouldhave
normally left the country.
Possible ffierences of opinion concerning the duration of the special
mission can never give rise to a legal dispute. The reason is that a special
mission, whatever the circumstances, comes to an end upon
2 Maresca (1975),pp. L73tr.
90
notification by the receiving state that it considers the special mission

terminated (CSM 20par.L e).
The same applies to missions of several states meeting in the territory of a
third state. In the case of such a noffication by the receiving state the
sending States are under the obligation
to immediately recall their
missions, which, on their part, have to stop all their activities the moment
they learn of the decision of the host State.3
The right of the receiving State, recognized bythe CSM, to put anend to
a foreign mission at any moment, is the expression of its territorial

sovereignty. From the legal point of view this means that sending back a
foreign special mission earlier than previously agreed by the parties is
never illicit and thus cannot involve the international responsibility of the
State concerned.
Ttre unilateral decision to put an end to a mission is to be distinguished
from breaking off diplomatic relations.
2.
sEvERANCE oF DIpLoMATIC RELATToNS
2.1.
The Decision
The severance of diplomatic relations is a unilateral act by which a State

yrthdraws its diplomatic mission accredited to another state and requests
that state to do the same.a As no international rule, customary or
conventional, submits it to any conditioirs of substance or form, it is a
purely discretionary act. some of its legal consequences are stated
expressly in the diploinatic law conventions.
Rather than follow most authors in discussing various reasons for
breaking off diplomatic relations, the question should be asked, what are
its_ possible purposes and motives? In generar the rupture of diplomatic
relations is a means allowed by international law ofexercising political
pressurein order to changein a desired waythe behaviour of another State
or to punish it for an act which may not be illicit. prior to world war II,
breaking off diplomatic relations was considered to be a very serious
measure short of war. Now that practice has changed, and states,
es.pecially the newly independent ones, rqsort to it frequently to e4press
dissatisfaction with other States and their policies.s
The severance of diplomatic relations is normally decided by states
3 ILC, Yearbook,
L967,vol. tr, p. 353.

this question Papini and corteze (L972);Sfez (1966); Satow, chapter 22.
5 Papini and Corteze (L972),Preface
by Ch. Rousseau.
See on
9t
individually. Sometimes it may be also a collective measure taken by

members of an international organization or of an informal group of
states. According to article 4 L of the uN charter in the case of a menace
or a breach of peace or of an act of aggression, the Security council may
request member states to sever diplomatic relations with the state or
States concerned, as one of the measures not implying the use of force. To
date, however, the Security council has never taken such a decision. The
General Assembly, on its part, on two occasions recommended to the UN
members to sever diplomatic re-lations: flrst with Spain nL946 (res. 39lt)
and then n 1962 with south Africa (res. 1761lxvlD. similar decisioni
were taken by regronal organizations. on March 15th 1965 the Arab
League requested its members to sever diplomatic relations with the
German Federal Republic following its recognition of Israel.6 In the
same way, after the unilateral declaration of independence by southern
Rhodesia, the oAU urged its members on December 5th 1965 to-break
off diplomatic relations with Great Britain if it did not put *
to the
"16 states
rebellion before December 15th. Actually, only a few African
complied.T
2.2. Legal Consequences

A decision of a state to sever diplomatic relations becomes binding on the
other state when it has been officially notified, in whatever fornr-s From
the legal point of view, the severance of diplomatic relations is a unilateral
denunciation of the agreement on their establishment. The relevant
provisions of the 1969 vienna convention on the Law of rreaties do not
glply t9 such agreements because of their specific character and object.
The only requirement applicable in these cases is that the denunciation
(meaning here the severance of diplomatic relations) has to be explicit. As
the lawfulness of the rupture of diplomatic relations can never be disputed,
their re-establishment requires a new agreement between the parties.
Finally, it has to be pointed out, that even after diplomatic relations have
been broken off, the provisions of the cDR relating to the protection and
to immunities of diplomatic missions and their staffs remain in force
between theparties.
The decision to sever diplomatic relations creates for both parties the
obligation to close down their diplomatic missions and recall their staffs
within the deadline set by the state which took the initiative. The imparted
time depends on the seriousness of the situation and on the importance the
6 Papini and Corteze, p. Ll2.
7 Sfez,p.386.
8 on the different forms of severing diplomatic relations
92
see
Moussa (1 972),pp.17 5ff.
state concerned wants to attach to that measure. At the same time,

however, minimal standards of international courtesy and humanitarian
considerations have to be respected.
The measures discussed concern only the staff of the diplomatic mission
stricto sensu. This is so because'theseverance of diplomahcrelations does
not entail ipsg facn the severance of consular relitions' (ccR z par.3),
nor does not imply'the end of special missions existing at the uroment of
the rupture' (csM 20 par. 2).It has to be deducted therefrom, that not only
consular posts are not affected by the rupture, but also that the diplomatit
personnel in charge of consular functions as well as that of iechnical
assistance missions can continue to exercise their functions. The personnel
of the mission not affected by the rupture takes care of the premises of the
miryi91 is responsible for its protection, and is allowed to wind up
unfinished business of a non-diplomatic nature. The parties can also agree

to leave behind in their respective embassies one or more staff members,
usually of the administrative and technical category, to take care of current
affairs.'
-.If such arrangements were not possible or not satisfactory when
diplomatic relations were broken off, the sending state has the right to
entrust the custody of the premises of the mission, together with its
property and archives, to a third State acceptable to the receiving state
(cDR 4sb0.
usuallythis is a convenient solutionbecause the statein charge of custody

atits disposal the normal diplomatic means of communicating with
both the receiving and the sending States. This may be of parlcuhr
importance in situations of internal tensions and make,the custody of the
missionmore effective.
has
2.3. Protection of Interests
More important than the technical aspects of the closing down of the
mission are the repercussions of the severance of diplomad'c relations for
the interests of the sending State and its nationals in the receiving state.
wi_thout a diplomatic mission it is unable to effectively protect them.In
order to limit the negative consequences of such a situation the cDR
provides that
the sending state may entrust the protection of its interests and those
of
its nationals to a third state acceptable to the receiving State; (cDR

a5 c/).
93
In order to make use of this provision, the sending State first has to make
an arrangement with the State which is to act as the protecting power.
When the head of the mission of the latter is approached, he has to get the
consent of his ministry, because the protection of a foreign mission
involves not only the mission but engages the State itself. The content of
protection agreements, mostly concluded in emergency situations, maybe
ouflined by internal instructions of the Foreign Ministry of countries
which often serve as protecting powers,like Sweden or Switzerland. Next,
the protecting power has to be accepted by the receiving State which can
withdraw it at any moment. Such a request is norrrally presented by the
former State.e Cases of non-acceptance are very rare.
The functions of protection of the interests of the State affected by the
severance of diplomatic relations extend only to the relations already in
existence. This means that the protecting State is not entifled to negotiate
or conclude treaties in the name of the protected State.
The functions of protection may be performed in trryo different ways.
Formerly, such functions, as a rule, were discharged by the staff of the
mission of the protectrng State, which could be increased for that
purpose. More recenfly a practice has developed by which States wlto
have broken off diplomatic relations agree to attach to the missions of the
protecting States some members of their own embassies, who otherwise
would have to be recalled. As a result, in spite of the formal severance of
diplomatic relations, the respective diplomatic missions continue to
function de facto as special sections of the embassies of the protecting
State. In this way the protection of interests respectively of the Gennan
Federal Republic and of Egypt was organized when they had broken off
diplomatic relations in 1965. Somewhat different was the case of the
protection of American interests in Iraq after their diplomatic relations
had been severed u-L967. At first, that protection was carried on by the
Belgan embassy in Baghdad.h 1972, with the consent of the Iraqi
government, ttre United States opened in that embassy a section for
American interests staffed by two formally accredited American drplomats. Such measures deprive tlre severance of diplomatic relations of all
its legal meaning.lo
Finally, according to article 60 of the Vienna Convention on the Law of

Treaties, the severance of diplomatic relations does not affect thevalidity
of treaties in force between the parties, except when their implementation
depends direcfly on the presence of diplomatic missions.
e For a wide-ranging presentation of the practice in this field, see Moussa (L972),
pp.363-380; for the British practice see Denza (1976), p.280; for legal aspects - Sfez
(1966), pp.406-410.
10 Chroniqug RGDIP, L97 3, p. 822.
94
3. suspBNsroN
oF DrpLoMATrc RELATIoNs
In 1931 the French scholar R. Genet stated in his

fundamentar work that
'breaking off diplomatic relations in fact never amounts
to more than their
suspension'.ll
Since then the question has been much discussed

as how to
distinguish between the two concepts. Now
the debate has lost its
sub-stance, as diplomatic law in force makes
no mention of the suspension
of diplomatic relations. The cDR refers only to
cases in which tiplomatic
relations are broken off between two States,
or when .a mission is
lr"^TT^"-11y--o1l"Tp:*rilyrec.allgd(CDR45).Asalreadymentioned,
rne severance ot dipromatic relations brings to an
end the agreement
concerning their establishment. This does not preclude
a future conclu_
t1.." oJ a similar agreement. In this sense Geiet,s
assertion is certainly
risht. But from the legal point of view the agreement

is tenninated.
The situation is different when the mission i,
temporarily recalled. In such cases the agreement on the establishment
of
diplomatic relations remains in force] and only p.o"irior*
ro.he
estab_
Iishment of a mission are suspended. what is ,rr-o*,
the decision to recall a
mission has no direct impacl on the rights and
duties of the other party
(section 1 above).
p"r-;;;tlt;r
4. rrre ExrrNcrroN
oF oNE
,iT"Tiffi::;\ND
rHE NoN_REcocNrrroN oir
The loss of internatigla] legar
personality by one of the parties to an

agreement on the establishment of an externalmission,
u. ur,i", brings the
mission to an end. when appried to States this statement
o""dr, however,
to be qualified. The extinction of the international p"rrorJty
of a state, by
its very nature, impries necessarily that the territo.y
t u, to .6-"
*oer the
of another State. This change of sovereignty has to be
by the other members of the international .orri"oity.
when a
sovereignty
lecognrzgd
Statewithholds its recognition, consideringittobeillicit,
it.*-ui"tainits
accreditation granted beforehand to the supposedr}r

extinct state. The
same may be true when the receiving state wiihholds
its r".ogritioo of the
new government of the sending State. Typical instances
of ti'e latter kind
were exiled govemments during world war tr
and also the case of china
priorto
1.97L.
,.1-S"ot"9-Ul-Cahier (1964), p. 181; see

(t972),pp.t27tr.
also Mous sa(L972),p.175; papini and Corteze
95
5. rate
oF THE EXTBRNAL MrssroN DURING ARMED coNFLIcr
Even though the Conventions make no reference to it, it is widely accepted

that war automatically involves the breaking off of diplomatic relations
and brings to an end all external missions exchanged by the parties to the
conflict. The only exceptions to that rule are missions to an international
organization when one of the parties to an armed conflict is its host State.
Whatever the situation might be, normal obligations of the receiving State
involved in the conflict toward any foreign missions remain fully in force as
long as that mission has not left its territory (CDR 44, CCR 26, CSM 45).
The situation is less clear when an arrred conflict takes place without a
formal declaration of war, which recenfly has often been the case. It
occurred, for instance, when in August 1965 Indian troops crossed the
cease-fire line into Kashmir and the Prime Minister of Pakistan reactedby
stating that his government considered itself to be at war with India.
Hostilities went on for 23 days making thousands of victims, but the High
Commissioners of the parties remained at their posts in the respective
capitals and were not recalled until two months later.rz Similarly, diplomatic relations between these two countries were not broken off at the
outset of new hostilities in Decemb er L97 L; they were only then severed, a
few days later, when India recognized the Republic of Bangladesh.l3 This
has also been the practice in many other cases. It can thereforebe stated
that contrary to a declared war, an arrred conflict does not necessarily
induce by itself the breaking off of diplomatic relations. This has the
advantage of leaving the countries concerned with the possibility of
keeping in diplomatic contact over ttre issues at stake.
6.
coNsreuENcBs oF TIIE TERMINATIoN oF AN EXTERNAL MIssIoN
The termination of an external mission has immediate and direct consequences for its staff, its property and, in the long run, for the mutual
relations between the parties.
The end of an external migsion, whatever its causes, has no influence on
its nature as an organ of a sirbject of international law established in the
territory of another State. As already stated, diplomatic law protects these
organs in the interests of the international community, which reaches
beyond the limited perspective of sheer reciprocity. This is stated very
forcefully in the following provision concerning special missions, but
which in fact is applicable to all other types of missions:
12
13
96
Chroniqug RGDIP,1966,p. 185.
lbd,L972,p.547.
when the functions of a special mission come to an end, the receiving

state must respect and protect the premises of the special mission s6
longas they are assigned to it, as well as theproperty and archives of the
special mission. The sending state must withdraw the property and the
archives within a reasonable period of time (CSM 46).
L.
In a situation of armed conflict, the receiving State in addition is under the

obligation to grant members of the speciar mission the possibility of
lpui"g its territory. Similar provisions exist in conventions ietating tl au
the other types of missions.
In brief, it may be said that the termination of themission creates forthe
sending state the obligation to remove the mission as rapidly as possible
from the territory of the receiving state, but until thai occurs the
obligations of the latter remain practically unaffected.
97
PARTTHREE
The Staffof the External Mission
The external mission, as any other organs of a State, consists of one or

more persons. Each of those persons is entrusted with specific functions
and all of them are, as a group, organized in a certain hierarchical order.
But, as already mentioned, the specificity of the external missionis that it is
subject simultaneously to the peisonallrrrirdi.tiorrof the sending State and
to the territorial sovereignty of the receiving one. The particular role of
diplomatic law consists precisely in reconciling the fwo. Clear rules
concerning the persons making up the missions help to achieve it. These
rules are studied in the chapters contained in this Part. They deal with the
composition and organization of the staffs of external missions, and with
questions relating to the beginning and ending of their functions.
99
ChapterX
The Members of the Mission
According to article
b/ of the CDR
the 'members of the mission' are the head of the mission and the
members of the staff of the mission.
In this chapter this definition will be applied to all typas of external

missions and some general questions concerning the persons who constitute them will also be dealt with.
L.
^lpporNtrr,rENT oF MEMBBRS oF TrIE MIssIoN
The right of every State to decide fred onthe composition of its organs is
certainly a basic attribute of its sovereignty. This right necessarily extends
to the appointment of members of its external missions, and is explicrfly
recognized by diplomatic law. AII the relevant instnrments stipulate that
the sending State 'may freely appoint the members of the staff of the
mission', whether it is a diplomatic mission (CDR 7), a special mission
(CSM 8), a consular post (CCR L9) or a permanent mission or delegation
to an international organization (CRSIO 9 and 43). The same also applies
to international organizations. According to the UN Charter (art. 101) the
UN Secretary-General as well as the heads of the secretariats of the
Specialized Agencies are in charge of appointing members of their staffs,
including their external missions.
The actof appointment, which is within the internal competence of any
subject of international law, creates a legal relationship between that
subject and the appointee. This is a kind of personal allegiance which
submits the appointee to the internal rules of the appointing subject.
Moreover, members of external missions of States are, as a rule, nationals
of the sending State and come, therefore, under its personal jurisdiction.
This obviously is not the case with members of the external missions of
international organizations.
101
The peryonal jurisdiction of the sending State over

members of its
external missions ir ti,ry,9d by the territoriir ,ru"r"igrty-;i,h"
State of
residence. By virtue of that sovereignty the latter """"r"ir",
u certain
over.its composition, size anA org-anization of anyforeimmission.
::ltlo_t
lr
rs rnteresting to see how these prerogatives
can be exercisEo without
the
mutuar
confidencl
betieen
the
mission and the authori".opu.qi"s
t:, oj the receMng State, which is necessary for the mission to be an
effective organ of communication.
2. Narroxelrry
oF MEMBERs oF THE MrssroN
2.1. Missions of States

Jh9 sending State's freedom to choose the diplomatic staff of a mission is
limited to its own nationars.'This rure applying to
a[ t),p"s;f missions is
clearly established by the following proviiion:
1. Members of the diplomatic staff of the mission shourd

in principle
(cDR g,ccR;;,i:sirr roy.
have the nationarity of the sending state
This does not exclude the possibility of appointing

foreigners
as members
of an external mission, u.rt s,rumits ii io certain .{rir"-"rrts.
Two
situations are possibre. The first occurs with the app"irt

of the state of accreditatiol of a diplomatic missi'on
o, of tt
i""i.r
a national
t ost state of
an .qteTational organization. In both cases the
"
instruments
in force
require the prior consentof the rgcgivrng State,
which-.*,"u."quenfly
withdraw it (par.zof^the above articles).I; th",".o"i
situation a
national of a third state is appointed as a member fo.riur"
of a mission. The
lonventions provide in parug.aph 3 of the same articles that in such a case
the receiving State may arso ieserve the right it has
concerning the
appoinfrnent of its nationals.
These provisions applied to cases which are
exceptionar but not
unknown rn this respect receiving states have always
shown concern, even
though their practice has not been uniform., vtosiotterr
ft"i *" shown
q:t}r-t if ,,ot outright.disapprovar of their *tio"a, -t"r'#girp serui""
withinforeign missions in tGii own territory.
Faced with an uncertain practice ttre ion broke
new ground and
alopted a pragmatic approach.In effect, according
to the 1981 convention and the later ones the State of residence may,
ilit .o *isrreq decide in
each case whether to allow its nationals to take-up
,"rvi"e *itt a foreign
Cf. Cahier (1 964),
L02
p. 7t7;Denza (1976), p. 35.
mission;
it may also change its decision at any moment. This provision
favours the receiving State and protects its interests, while timiting the
freedom of choice of the accrediting one.
Honorary consuls and their staffs usually have the nationality of the
State of residence.2 Chapter Itr of the CCR devoted to honorary consuls
closely follows earlier customary rules of international law. Usually, the
honorary consul is a national or permanent resident of the receiving
country, who, in addition to his normal activities of businessman or lawyer,
performs consular functions on behalf of the sending State. The ILC
discussed at length the question whether to maintain this institution.
Finally, the Commission and the 1963 Vienna Conference agreed to
acknowledge honorary consuls, but left States free to accept or to refuse
them (CCR 68). This takes due account of the interests of many trading
countries, for whom the possibility to appoint honorary consuls in places
where the presence of a career consul may not bejustified is very important.3
Similarly, the host State of an international organization is entitled to
make a decision concerning the recruitment of its nationals by a foreign
mission or delegation to that organization (CRSIO 73). Unlike similar
prerogatives relating to other types of mission
the consent of that State shall be assumed if it has been notified of such
appointment of a national of the host State and has made no objection
(CRSIO 73par.3).
Pursuant to articles L5 and47 of that Convention, these questions should
be dealt with either through the organization or the conference, or directly
through diplomatic channels between the sending and the host States.
These provisions definitely protect the interests of the host State. It is a
noteworthy fact as normally the CRSIO is mainly concerned with

protecting the sending State and its missions.
In the
case of the appointment of a national of a third State to the

diplomatic staff of a mission, the receiving State also'may reserve the right'
to express its consent (par. 3 of CDR 8, CSM '1.0,CCR22). But there is no
clear indication in what form the host State should make that reservation
nor what procedure should be followed by the sending State. It seems,
however, that the spirit of the Conventions and international courtesy
require that the sending State seeks the consent of the host State before the
2 Ahmad (1973),p.25;Lee(1966),pp. 163-L67;Zourek(7962)aswellashisarticleon
the history of consular relations (cf. our bibliography).
3 During the debate in the ILC referencevas made to the case of The Netherlands, which
at that time had twenty consular posts headed by career consuls and 500 honorary consuls
19 56, vol. I, p. 25
lLC, Yearbook,
l.
103
qnFs'
.flr
Ttual
These restrictions do not appry to missions and

delegations to international organizations and confiiences.
The rules on the nationality of members of diplomatic
missions may not
be applied when a dipromatic mission is in charg" oip-rot".ting

the
of a third state. As already
z;, ihen
1""rrapt"iu(,
ryentioned
diplomatic relations have been severed the sendingbt"t6, *itrrtrr"
consent
of the receiving o":
Td on grounds of reciprJciry,;y *sign some
interests
members of the staff of its mission to the mission p-i."tirig

its interests.
wil be considered as diplomats of tf;e protecting
From then on they

country.
Z.Z. Missioru of Intematiortal Organizations

International organizations, in contrast to states, are
subjects of inter_
national lawwithno territorial orpersonar jurisdiction.
rt
q.r"rtior,
therefore, concerning the nationatity of members of
"Lrry
their
external mis_
sions is whether nationars of the receiving country
,rroJJ.rr*" equal
treatment with nationals of other countries on the staff

of that mission.
Article_D(, paragraph 4 of the UNDp standard Agreement
answers that
question.Itprecludes .natiorrals locally recruited, frim
"";oyri"gpriril"go
gd immuities granted to the uNDp mission,s staff. It ;";;;
contrario,
that nationals recuited at UN headquarters and sent with
the UNDp
mission to their co,ntry of origin rlra[ huu" the same
statos as other
members of the missions.
. T: g:.tion was arso discussed whether the resident representative of
the UNDP should as a matter of preference be a national
&trr" receiving
country. The main argument in favour was that nationas,
iamiliar witrr
conditions and needs of thgir country, were best pr"p*jto
rua trr"r"
functions.a on the other hand, it was pointed *it
tr,ut,lu.king the
necessary aloofrress from local problems ano
ueing an easytarget f6r a[
kinds of pressure, a nationar of the receiving
lit trave the
gpTti.rry required-of a representative of in"o"rt".y-*oJi
i"t"-utio"ur-org*iration.
The latter argument finaly prwailed, and uNDp resid"ot
,"pr!r"rrt"tin",
are not, as a rule, natioryfg of thecountry of their residence]This
applies
also to other members of their staff, except for those
i.""uv-L.*it"o.
3. stzt oF THE MrssroN

3.1,. Missiorw to Stntes
originauy the size of a diplomatic mission was supposed

to reflect the
importance and the powef of the sovereign sendi4g it.
It was impossible,
a Mar-rgone (l
966),p.197.
104
thereforg for the receiving monarch to impose any limits on it. Accordin$y,
9rxt9mary diplomatic law left to the sending State alone the decision
as to the size of its missions.
The question whether this rule still reflected the actual needs was
debated by the ILCand was finally answered in the negative.s The
new
provisions on the subject included in the cDR and in fl;e other relevant
instruments confonn to the principle of functionality. They read
as
follows:
In the absence of specific agreements as to the size of the mission, the

ryceiving State may require that the size of a mission be kept within the
limits considered by it to be reasonable and nonnal, having regard to
circumstances and conditions in the receiving state and to tire needs of
the particular mission (cDR 11, and simitarty ccR 20 and csM g).
1
According to that provision the size of a diplomatic mission no longer

depends on a unilateral decision of the sending state, but requiresjin
principle, an agreement between the parties. The above article esiablishes
three criteria to the size of the mission.They are: common sense (limits
considered to be reasonable and normal), conditions prevailing'in the
receiving state, and, finally, the needs of ihe mission. All of them refer
mainly, if not exclusively, to the receiving State. Even the .needs of the
mission'should be assessed according to the dimension and the situation
of the receiving country, rather than io the importance and power of the
sending State. It is up to the former to make iure that these criteria are
respected.
The second paragraph of the same article adds that
tlre receiving State may egually, within similar bounds and on a nondisjriminatory basis, refuse to accept officials of a particular category
(cDR
11).
This provision gives the receiving state additional means to safeguard

what it considers as its interests. It enables it to influence not only the
overall size oJ every foreign mission but also the composition of its staif. By
these provisions favouring the receiving rather than-the sending State,
the
'cDR protects the small and weak countries
in their relationls with the
qore 1ch and powerful ones. This is an important point as reciprocity
alone has litfle weight in relations between unequal partners.
practice states do not always use the pronisions on the size of
.In.actual
missions according to their spirit.In May rgTz,for instance, the Egyptian
5 Cahier (1964), p. 88; Denza(1976),p.48.
105
goveflrment requested the united States to reduce

by haH the size of its
mi$o"1in cairo (from z0 to Lo persons), and on its part ,".uu"d
haH the
staffof its own mission in washington. since diplo-uti".erations
between
them were severed in 1967, th" Am".ican mission at that
time was
attached to the embassyof spain in charge of protecting
us intLsts. rte
Egyptian request to reducqthe size of-the mission ;;;;;*ed
as a
retllialory measure fo1 u_s support of Israel's poricies i" o".opi"o
t"oitories.6 According to the cDR, however, such pbfiticat
consiJeiations are
not supposed to justify any interference with the size of

a foreign mission.
Missions to International organizations
Instruments relating to the representation of States

to international
organizations now in force,namely the cpIUN and cpISA
as weu as the
respectiveheadquarters agreements, contain no provisions
asio the size of
missions, leaving it entirely to the discretion of the
member States
concerned. This gap was filled in by the cRSIo which in
its articles on
permanent missions.(art. 14) and on delegations
(art. 46) follows the cDR
by stating that
the size of the mission shall not exceed what is reasonabre
and normal,
navils regard to the functions of the organization, the-needs

of the
qarticular mission and the circumstances and conditions in the host
State.
These criteria are almost identical with those previously

discussed. In the
interest of the host State they aim at preventing
sweiling of staas
of missions to international organizations.
""."rriJ"
The quoted cRSIo's provision, however, does not endow
the host
^
State, nor the international organization, with legal
means comparaute to
tho-s9 at thedisposal of the Staie receivinga dipdmatic
mission to direcfly
grd ilmediately influence the size and the cbmposition oitrr" mission.
The host state may only exert some indirect pressure. rtrougrr
trre
secretariat of the interrytionar orgurirutio, it may
sending
State that it considers the size oithe latter,s mission
or delegation as
exceeding the limits set by the relevant provisions ana
wishes it to be
reduced.
The cRSIo is not yet in force and earlier instruments
are still appricable. As already mentioned, in the seat agreemert
with the uN the uS
government has granted missions and deiegations
to the UN the same
status as that enjoyed by dipromatic missions accredited
in washington.
irf";-th"
6 Chronique, RGDI?,
106
L97 3,
p.g03; also Whiteman, vol . 7, p. L0.
consequentlyprbvisions of the us government concerning the size of the

mission also apply to them. This was, precisely, the legal basis of the
American request of March 1 9 8 6 calling for a considerable staff reduction
in the Permanent Missions to the UN of the soviet Union, the Belorussian
ssR and the ukranian SSR. The united states position was that those
missions had 'together reached a size that far exceeds the staffing needs
arising from the pursuit of united Nations related business,. The-matter
was brought immediately before the committee on Relations with the
Host country.T In a statement to the committee the legal counsel pointed
out that under applicable law it is a matter which has to be setfled by
consultations between the United states, the soviet union and the UN
Secretary-General.8

The decision concering the size of a special mission is in principle left to
the discretionof the sending State.However, whenamissionis to takgpart
in negotiation requiring equal representation, the parties concerned have
to agree beforehand on their respective size,e [n addition
the receiving State may decline to accept a special mission of a size that
is not considered by it to be reasonable, having regard to circumstances
and conditions in the receiving State and to the rieeds of the particular
mission (CSM 8).
The circumstances and conditions are mainly of

accommodation facilities, transportation, etc.10
4. rnawr,
4.L.
practical nature, such as
DocuMBNrs
The Diplomatic Passport
The diplomatic law conventions make no reference to the diplomatic

passport. Nevertheless, each member of an external mission of a state
travelling to or from his post is necessarily provided with such a document.
This requires a few comments.
The term'passport'has always meant an ofEcial documeni enabring its
7 (IN Chronicle, August 1986 (vol. )O(tr,
no. 4), p. 106.

8 UN doc. A,/AI.L54/264,(19S6).
e il-C, Yearbook, L967, vol. II, p. 5 1 Bartos
(1 963), p. 502.
;
,o LC, Yearbook,loc. cit.; przetacznik
(l9gl),p. t24.
.ffiFfr,.
{ttt
holder to cross State boundaries. originaly
it
used
to be issued to
foreigners by the authorities of their corrntryof

residence, especially in
times of war, in order to enabre them to leave the
.or"trv o, to travel
through military occupied territory. with referencl

i; ,htr'"il
some expressions, which otherwise would be diffisuh
to understand, can
now be e4plained. Thus, for instance, the expression .to
ask for passports,
is sometimes used when an ambassaior wants
to reave the receiving State
in srgn of protest. similarry, sayrng that an ambassador lras
handed his
passports'means that he was requested by the receiving
gou"*,n"rrt to
country in case of an armed conflict or to."oit atever
otlrer
'::::_T:
reason..,
Th-e requirement to hold a passport, issued by
the state of origin in
order to travel abroad, was establistieo ouring ttr" r-.r,
n"uthtion and
became common after worrd war I. Now,-the hrH;;;i;
passport is
prasumed to have the nationality of the issuing
stut, rre' rrls to present
it at the consulate of the country or countries he intends to visit
or to
cross in order to obtain the required visa. Fortunatety,
this ,.r.u"rroor"
obligation has now been aboliihed by many bilateral
and murtilateral
ilil;
agreements.
rn L920 an international conference was convened in paris

in order to
agree on some common principles to guide states
in matters related to
9,*ry?fi. passports. rn its nna'resolution the conference left states free
ro cecrde on the tbrmat of diplomatic passports,

but recommended that
is-zued only to persons faling ioto or" of
the folowinjcategories:
n htgh officials of the household orh" head of state; u7 oipiomatic ano
consular agents and their families; c/ members otgou"*";iJ,
-ioirt".,
9f r.!t", presidents and vice-presidents of legisiative uoJies'ano trreir
families, and finally d/ officiadof foreign minisiries
ft,"J.b:
aoo tt
Even though these rules were not uinaing, they rrerpeJ"irla*ities.r,
to estautistr a
cornmon and constant
rerating tJ aipiomutic passports and
.nyc1i-ce
facilities extended to their
holders. The la"tter consist in a sieeo'y delivery
o_f yr*,simplified custom and police
forrralities urstut"lJro], etc. The
passport as such, however, does not entifle its holder
{nfoma{c
to craim
diplomatic immunities and exemptions, which *" gr;i"Jrrrrv,,
actual
members of external missions, diplomatic and oth6rs.ri
rr," {uaity of u
member of a diplomatic mission has to be expressly
attested in an official
leiss
(1956); Whiteman, vol. 7, pp.95_1,02.
Dictionnaire diplomatique, acaoemie Diplomatique

Internationale, Paris, vol. II,
p. 358.
13
waters (1963), pp. 7.gff; whitemann, vor. 7, p. 121.It

should be remembered that, as
already stated, the ICRC deregates are issued witrrSwiss
,
an
ICRC laissez-passer, whic.h
108
a1e generalry
dipromati. purrpo.t L
to
recognized as equivarent to simlar documents

"odition
document or a visa isssued, as the case may be, by the authorities of the
serdin& receiving or transit State.
4.2.
The Laissez-passer
The'internationally recruitedl members of missions of the UNDP and of

other international bodies and organizations, are issued by their respective
secretariats with a laissez-passer. Article MI of the CPIUN requires States
to accept the UN laissez-passer as a valid ffavel document. In order to be
entifled to facilities, immunities and exemptions granted by the Convention to international officials, the holder of the laissez-passer has to be
provided with a document certifying that he is travelling on ofEcial
Lusiness. Section 27 of the sanre article provides that the SecretaryGeneral and other high-ranking offrcials, when holding laissez-passer are
entitled to privilegeJand immunities granted to diplomatic envoys of

States. ny anO large, this applies in practice to most officials of international organizations travelling on official business.la
Travel d6cuments issued by international organizations of non-universal
character as a rule are not recognized by non-members of the organization. This, however, can be remedied as indicated by article 6 of the
Protocol on Privileges and Immunities of the Lom6 Convention, which
provides that
of
in
the
having the laissei-passers recognized as valid travel documents
territory of third States.
the Commission [of the EEC -
L-D]
can conclude agrcements in view
This has nowbeenwidelyfollowed and many States actually recognizethe

taissez-passers issued by the EEC.
The irovisions of tfri OeU Charter on the laissez-passers are nearly
identical wtih those of the CPILIN. They do not mentionthe possibility of
their recognition by third States, but the membership of the OAU is

suffrciently large foi its travel document to be useful, especially as third
countries may also accept them as
5. rnp
matter of courtesy.
DTPLoMATTc coRPs
5j1.. TheSnnn
The term'diplomatic corps'in its narrow sense refers to heads of all
diplomatic missions accredited to one government. It is often also used in a

'o LC, Yearbook,1967, vol. tr, p p.288-296;also
Jenks (1961),
pp. 127-l2g'
109
'il1f
wider sense.It then applies to all diplomatic agents posted in one given
capital. Finally, it can also mean all members of the diplomatic career of a
country. The present section deals with the diplomatic corps in its first
meaning.ls
Some authors maintain that the diplomatic corps is one of the most
ancient institutions in the realm of diplomatic relations. Certainly it is one
of thebestknown and it existsin allcapitals of theworld. Beforelooking at
its functions some of its legal aspects have to be discussed.l6
Both in the ILC and at the 1961 Vienna Conference proposals were
made to include in the CDR a provision on the diplomatic corps. Finally it
was decided not to mention it at all in the Convention. This omission,
however, does not allow any doubts as to the existence of norms of
customary diplomatic law on this subject. Its role was simply not considered as sufficiently important to be sufEcienfly important to be
mentioned in the Convention. But the preambles of the CDR and of the
other Conventions provide that
the rules of customary international law should continue to govern

questions not expressly regulated by the present Convention.
The diplomatic corps legally exists in all State capitals.It does not depend
on any formal constituent act, nor on the express will of its members, nor
on whether it holds formal meetings or actually performs any functions.
5.2. TheDean
The same applies to the dean of the diplomatic corps. He is the head of a
diplomatic mission who holds the highest rank of precedence in a given
capital. Among his peers he is primus inter pares,and when necessary, acts
as spokesman for his colleagues.
The receiving State is free to choose one of the three possible rules to
designate the dean. According to these rules, this position can be held
either by the head of a mission belongng to the highest class and who has
held his position in that State for the longest time, or by the head of mission
of a particular State (for instance by the French ambassador in some
francophone African countries) or, finally, by the Apostolic nuncio.17 The
first formula is now most commonly used, but the last one is still applied in
1s Cahier (1964), p. 165; Moussa (1972), pp.l97-2L6;
Nascimiento de Silva (1973),
pp. L60-17 3 as well as most other works dealing with diplomatic law.
16 Opinions expressed on
this subject in the literature vary considerably. Our own adds to
this variety.
17 Cardinale (1962), p. 1,L6.
110
thirty different countries.r8 The cDR stipulates on this particular point

that its provisions concerning the rules of precedence are
without prejudice to any practice accepted by the receiving State
legarding the precedence of the representative of the Holy Sea(cDR
16 par.3).
whatever the case may be, it is always the head of mission with the highest
rank of precedence in the given capital who, as dean of the diplomatic
corps, is granted by the protocol service of the Forergn Ministry certain
ceremonial privileges, such as the seat at the high table at formal receptions, access to the presidential or royal tribune at parades, etc. The
Foreign Ministry also contacts him in matters of interest to the whole
diplomatic corps.
5.3.
The Functioru
Even though the diplomatic cotps exists independently of the will of its
members, they have, according to customary rules the possibility of
making use of it when necessary. For instance, on the dean's initiative-and
under his chairmanship, the diplomatic corps may hold meetings in order
to solve questions relating to protocol which might have arisen with
authorities of the receiving State. It may also take a joint stand on some
issue relating to diplomatic privileges and immunities and to their
disregard or to violations by the receiving State of the principle of nondiscrimination in matters of their application (CDR a7 pal. I).
Insome cases the diplomatic corps may decide to undertak e a dhmarche
against the Foreign Ministry on a particular issue. rn 1973 in an African
country, for instance, su cha ddmarche was prompted by the promulgation
by the Ministry of Finance of regulations by which all diplomatic miisions
and their staff were required to deposit in blocked bank accounts sums
equivalent to the custom duty on cars imported for their use. As a result,
the government concerned recognized that this measure was contrary to
the CDRprovisions and cancelled the regulations.le
m9",l"c,9ssary the dean may act in the name of the diplomatic corps.
^ behalf
on
of his colleagues and with their consent he presents the head of
lE
_ They are: Argentin4 Austria, Belgium, Bolivi4 Brazil, chile, colombia, costa Rica,
Dominican Republic, Ecuador, El salvador,IvoryCoas! France, GermanFederalRepublic,
Haiti, Honduras, Ireland, Italy, Lebanon, Luxemburg, Malta, Nicaragua, panamq paraguay,
P_eru, Philippines, Portugal, Rwanda, Spain, Switzerland, Uruguay, Venezuela, Ef-C.
it
should be noted that the envoy ofthe Holy See has the rank ofnuncio only where he is dean
of the diplomatic corps.
1e Many
other, earlier cases are quoted in the books mentioned in note 13 above.
the receiving state with congratulations or condolences, as the case niay

be. He also has an important, though informal, role to play by being thl
first to receive the visits of all newly-arrived heads of diplomatic missions.
on such occasions he shares with them useful information on the receiving
country, on matters of local protocol, on leading personalities, etc.
As already pointed out, the term'diplomatic iorps, in its wider sense
refers to all persons in a given capital entifled to diplomatic privileges and
immunities. Their names, along with those of their spouses are entered on
the'diplomatic list'issued regularly by the Foreign Ministry. Entries on

this list have apurelyinformative character and donot amountto aformal
recognition of the diplomatic status of a person or a refusal thereof. At
most it can be considered as a presumption.2o The list also gives the dates
of the presentation of credentials by heads of missions and thus indicates
their order of precedence.
5.4.
The
Diplomatic Committee
The diplomatic corps as described above does not exist by itself in cities
hosting international organizations, such as Geneva or New york. In 197 1
on the initiative of ambassador Brillantes of the philippines, a Diplomatic
commiueewas established in Geneva. Accordingto its terms of reference
the committee represents the Geneva diplomatic community in its
relations with the authorities of the host country and of the canton and
city of Geneva as well as with officials of the united Nations and of the
other international organizations. The committee consists of two representatives at anrbassadorial level nominated by each regional group, plus
the representative of china. Their terrr of ofEce in prinapte ii one year.
when required the Director General of the uN office at Geneva'and the
representative of the host country are invited to take part in the meetings
of the committee. Among other things the committee eraborated'Guid;
ET_o_o Diplomatic Courtrisy in Geneva'which were published by the
UNOG, and are applied to all ceremonial occasions.
20 On the
"lLz
6sr;o,
of the diplomatic list see Waters (1963).
ChapterXI
The FIead of Mission
L. rnr srATUs oF THE HEAD oF MrssroN

In all efiernal missions there is a sharp distinction between the head of the
mission and its remaining staff. The origin of that distinction dates back to
the time when the diplomatic envoy was the personal representative of his
sovereign. The staff he employed enjoyed a special status and protection
only out of deference for him. This idenffication of the diplomatic mission
with the person of the envoy appars clearly in the 1 8 1 5 Vienna regulation
on the rank of 'diplomatic agents'. In fact this regulation applies solely to
envoys: ambassadors, nuncios, legates, ministers and charg6s d'affaires.
This changed in the course of the 1,9th century. The change resulted, in
the first place, from the growing importance of the distinction between, on
the one hand, the person of themonarch, and, onthe other, the State itself.
Secondly, it was the consequence of theprocess of bureaucratization of all
governmental agencies, including foreign ministries and their staffs.
Following this evolution the diplomatic mission was slowly becoming a
bureaucratic State organ, with an internal hierarchy, led by a head of
mission and acting in the name of the sending State. As organ of a foreign
State it was granted special status in the receiving State.
At present the prerogatives of the heads of all types of external missions
correspond to practical needs.In the first place, any foreign mission, by
definition, is located abroad, in a foreign and, at times, unfriendly

environment.Its head, therefore, has to be vested with sfficient authority
and freedom of action to assume in times of real crisis full responsibility
forthe
mission, its staffand theirfamilies. A clear designation of the head
.
of mission is important also for the authorities of the receiving State or
international organization, which at any moment have to know who has
the authority to act in the name of the mission.
All the diplomatic law Conventions recognize the special position of the
head of mission. The CDR states in article L a/ that
the'head of mission'is the person charged by the sending State with the
duty of acting in that capaaty
LL3
and adds under
b/ that
the 'members of the mission' are the head of the mission and the
members of the staffof the mission.
The other conventions contain similar definitions.In the case of missions
of international organizations the relevant instruments make reference
rather to the resident representative of the uNDp and the delegates of the
EEC than to the missions which they are heading.
The case of special missions is somewhat different.l contrary to thg
other types of missions, the cSM does not require the sending -stut"
head of a special mission. This is due to the specificlty of the
possible tasks and of the composition of special missions.
ti
,*: t
2. cr,nssrs
AND pREcEDBNcE
2.1. Diplomntic Missions
As already mentioned, the 1815 vienna Regulation established precise

rulgs of precedence of the heads of diplomatic missions. They were
divided into the following tlree classes: that of ambassadors, legates and
nuncios; that of envoys, ministers and others accredited to the sovereiE,

and, finally that of charg6s d'affaires accredited to the Minister of Foreifr
Affairs (art. 1).The 1818 Aixla-chapelle protocol added to that the clais
of resident ministers which was soon to be abandoned.
_ At"r. establishing the order of precedence .among the classes, the
Regulation provided in its article 4 thatthe heads of miisions
will take rank among themselves in each class according to the date
the official notification of their arrival.
of
The division of diplomats into classes was at that time far more important
than just a matter of protocol. This is shown by article 2 of that instrument
which provides tlrat
ambassadors, legates and nuncios alone have representative character.
TF. i!
a very important provision, because representatives of sovereigns

alone had the right to negotiate directly with the sovereign to whom tf,ey
tt4
On this question, Maresca ( 1975),p.247.
were accredited. Moroever, according to custom, only great powers had

the privilege to send ambassadors.
Between the two World Wars the question was raised whether to revise
the Vienna classification of diplomatic agents. The majority of States,

however, were in favour of maintaining the existing rules. This attitude is
easily explained because atthat timemost diplomatic missionswere still of
legation rank and the exchange of ambassadors was a rather limited
practice.2
After World War II'that practice changed and embassies became the
cornmon type of diplomatic missions. Even Switzerland, which traditionally exchanged diplomatic missions at legation level only, began
sending and accepting ambassadors.
In spite of the argument that the existence of classes of diplomatic

envoys was contraryto theprinciple of equalityof States,boththellC and
the L96L Vienna Conference decided to maintain in the CDR
the
traditional distinctions. It was felt that States should be left free to maintain
diplomatic relations at levels of their own choice.
The CDR, however, while maintaining the three traditional classes of
heads of diplomatic missions (CDR 14 par. 1) has considerably downgraded their importance by providing in paragraph 2 of the same article
that
except as concenn precedence and etiquette, there shall be no difference between heads of missions by reason of their class.
The rule has also been maintained according to which

heads of missions shall take precedence in their respective classes in the
order of the date and time of taking up their functions (. . ) (CDR L 6 par.
1).
Alterations in the credentials of a head of mission not involving any

change of class do not affect his precedence (CDR 16 par. 2). States
exchanging diplomatic missions have to agree to which class the heads of
their missions shall belong (CDR 15).
2.2.
Consuls
Contrary to the CDRwhich merely codified existing customary rules, the

CCR had to break new ground.In the past, consuls were referred to by
z
gse gatmsn (1965).
115
H",
different terms, such as resident commissioners, commercial agents, etc.3
Article 9 of the ccR brings some order into this and dividei heads of
consular posts into four classes, namely consuls-general, consuls, viceconsuls and consular agents. At the same time the ccR imposes the
o-bligation on the parties to name heads of the consular posts in one of
these classes. This also applies to honorary consuls.
Heads of consular posts rank in each class according to the date of the
grant of the exequatur or the date of the provisional admission when it

precedes theexequafur. The honorary consuls take rankinthe same order
after career consuls (CCR 16).
2.3. Specinl Missions

Provisions concerning heads of other types of missions are less elaborate.
case of special missions, which may consist of one or more
representatives of the sending State, the latter may appoint one of them as
head of missio4 (cSM L). This, certainly, is intheinterest of the receiving
State which deals normally with the head of the mission.a
Il yltters, of precedence the csM has followed impricitly the principle
established in the 1815 Vienna Regulation that 'diplomitic agents on
extraordinary mission are not entitled as such to any superiority of rank,.
In practice, however, there may be exceptions to that rule at cbrtain official
ceremonies. At the British court, for instance, a special envoy considered
to personally represent a head of State takes place immediately after the
members of the royal family.s
In the
Precedence among
heads of special missions is governed by article L 6 of

the cSM, which considers two possible situations. The first one is a
Teeting of several special missions in the territory of a third State (par. 1).
In such a case the precedence among them and their heads

shall be determined (..
) according to the alphabetical order of the
names of the states used by the protocol of the state inwhose territory
the missions are meeting.
The second situation occurs when on a ceremonial occasion the precedence is governed by the protocol in force in the receiving State
6ai. z;. rn
most countries heads of special missions are divided into classei The hrst
one comprises heads of state or of government, members of the royal
family and ministers; the second includes ambassadors and ministlrs
3 conference on consular Relations,
A,/co tf.25/, arrcleg, commentary, paragraph 6.
a Bartos (1963), p. 502;Przetacar*(1981),
pp. 123-L30.
s Bartos (1963), p. 505.

11.6
plenipotentiary, and the third envoys with no diplomatic rank. In each one
of them the alphabetical order is determinant.6
2.4. Missions
to International Organizations
Contrary to special missions, in the case of missions sent to or by

international organizations, again, the head of mission is important. The
CPIUN refers only to 'representatives of member States' (art. f$. The
CRSIO, codifying previous practice, states that
'head of mission' means, as the case may be, the permanent representative of the permanent observer (CRSIO 1,,170.
This clearly implies that the permanent representative is necessarily

considered as head of mission, or vice-versa.
The position of the head of delegations
to organs of international
organizations is somewhat weaker. In the case of the UN General
Assembly (art.9 of the UN Charter) and of most other bodies, States are
allowed to send several representatives or delegates, one of whom may be
designated as'head of delegation' (CRSIO l, 2t).
Precedence among permanent representatives and delegations is determined by the alphabetical order used by the organization (CRSIO L7 and
4e).
2.5. Missions of Internationnl Oryanizations

The missions of international organizations are normally identified with
the persons of their heads. For instance the UNDP's Standard Agreement
providds that'UNDP can establish in the country a permanent mission
headed by the resident representative' (art. tr al 4). Similarly, the Lom6
Convention stipulates that the EEC'appoints in eachACP State or group
of States a delegate who represents it' @rt.228), even though in reality
these are true missions with a professional staff.
The practice concerning the precedence of heads of missions of international organizations is not uniform. Depending on the country, they may
be placed either following the ambassadors in alphabetical order of the
names of their organizations, or have their place after the entire diplomatic
corps. In some countries the UNDP resident representative and the
delegate of the EEC rank after ambassadors, whereas representatives of
othei organizations have a lower rank or no diplomatic rank at allJ
6 Przetacznik (1981), p. 131.
7 See document UNDP/ADM/236.
LL7
3. rnr
AcrrNG HBAD oF MrssroN
Th9 acting head of a permanent diplomatic mission is called charg6

d'affaires ad interim - a.i. for short (cDR t9 par.l). He is not to be
confused with the class of 'charg6s d'affaires accredited io the Ministers of
Foreign Affairs' mentioned in the 1815 vienna Regulation, and which still
d.-1. i" law (cDR 14), although rather seldom in practice. The charg6s
d'affaires of that class head missions of lesser importance and are cauea
charg6s d'affairs entitre or enpied.
A somewhat similar situation is provided for in article 5, paragraph 2
the CDR, which reads:
of
If the sending state accredits a head of mission to one or more states it

yay establish a diplomatic mission headed by a charg| d'affaires ad
interim in each state where the head of mission has noihis plrmanent
seat.
In this case a mission, usually an embassy, is permanenfly headed by a

charg6 d'affaires, who however is considered onry as acting head of
mission.8
Innormal situations the actinghead directs themissionwhen thepost of

head is vacant or when the head is unable to perform his functions (cDR
L9 par. L, ccR 15, cRSIo 16 and 48). The posi is considered vacant
when the head has not yet been appointed or taken up his functions. It is
less clear what is meant by trnable to perform his functions,. Does this
apply to cases of temporary absence from the mission or to long absence
lr-o* t="ceiving country? To any short indisposition or to prolonged
illness? These were qugslions discussed by the ILC, which finafy aoopLo
awording leaving much freedom to the practice of States.e In any ca.", the
aim of this article is to ensure, in the interest of all parties concernbd, that
the mission will function normally whatever the ciriumstances.
The instruments discussed give no indication as to who should be
appointed acting head of mission. In actual practice this position normally
goes to the member
gtaff who by order of precedence immediately
9f
follows after the head of mission.In order to respond to all contingencies
the-convgntions providethatwhenno member of the diplomatic staffof a
diplomatic mission or a delegate in the case of a delegation, or a consular
agent in the case of a consular post is available in tG State of residerrce,
then, with the consent of the latter, a member of the administrative and
t"
s This practice, which is now rather

common, is well discussed by Moussa (Lg72)
chapter
X)il.
e Denza,p.69.
118
technical staff may be designated by the sending State to be in charge of the

current administrative affairs of the mission (CDR 19, CCR 1.5, CRSIO
16 and 48).
The designation of the person to act provisionally as head of mission has
to be imparted to the Foreign Ministry. In the case of a mission to an
international organization the notification concerning the designation of
the provisional head of mission is to be addressed to its Secretariat, which,
inturn, informs the host State. Thenotificationhas to bemade bythe head
of the mission concerned, or, in the case of consular posts, by the
diplomatic mission competent for the consular district concerned. If the
head of mission is not able to do it, the noffication has to come from the
Foreign Ministry of the sending State. A contario it means that the
temporary head of mission is not entifled to designate the person to
replace him. This can be done only by the Foreign Ministry.
Because of the absence of specific provisions on this point, it has to be
inferred that the head of mission of an international organization is

temporarily replaced by the highest ranking member of his staff, and this
without any special formalities.
Although the provisional head of mission replaces the actual head in all
his functions, he does not assurhe his formal rank. On official occasions-his
place is among the charg6s d'affaires a.i., who rank after the charg6s
d'affaires en pied. The official replacing the representative of an international organizationwill eithernotbeinvited to suchfunctions or, if he is,
will take the normal place of the representative of the organization
according to the alphabetical order.
4.
rruz HEAD oF srATE AND pERsoNs oF HrcH RANK
At present, heads of State or of government oftenpersonallyparticipatein

international -activities. This is a relatively new development. Until the
1950s 'summit meetings' were rather exceptional events. Now, such
meetings are quite frequent and it would be dfficult to draw an exhaustive
list of them for any single year. This is due to both the easy travelling
facilities and the complexity of international problems.
At the time when foreign visits of heads of State and of governments
were exceptional events, the applicable rules of international law were
uncertain.l0 This has now changed and the CSM contains clear provisions
on this subject. They read as follows:
1. The head of the sending State, when he leads a special mission, shall
enjoy in the receiving State or in the third State the facilities, privileges
10 Cf.
for instance, discussion of this question by Cahier (196 4),pp.333-346.
TL9
Y*
and immunities accorded by international law to Heads

of state on an
official visit.
The head of the government, the Minister of Foreign
Affairs and
other persons of high rank, when they take part in u ,pi"ia
mission of
th9 ge,,ding state, shalt enjoy in the receiving state or ii
a third state, in
addition to what is granted by the pr"sert conuention, the
facilities,
privileges and immunities accorded byinternational law (cina
zr;.
2.
Article 50 of the cRSIo is armost identical. The only difference

is that its
first paragraph refers,-like paragraph 2,to \tntir gi*tJ
uy the present
convention'. During.the debatepreceding the adoplon
csM, such
a reference was considered redundant ani was
"fdi"the final text.
oeGteo from
According to these provisions, any officiar travel abroad
of the head of
^
State or of governmen! of.a_ fol"rg, minister, o, of
*y
person ,ot higtr
rank'is construed as a special mission. The participution o?trr"r"
p"rroil
in a'special mission 'does not confer it any special itutor,,
.exceptional
but
facilities, privileges and immunities auached to hi, .*k;iril
te granted to
the person concerned when it becomes a member of

a special mission,.rl
It is a matter of course that the head of State will always
t"aJtrre special
missionin whichhe takes part. The otherhigh-r-r.i"gi".r*
will either
a special mission or simply be its
o"p"iiio!
lead
o" trr" rank of
-"-6"rr,
the othermembers.
By virt,e of the above article of the cSM the head of State
when on
official-travel_enjoys privileges and immunities at b"J;d;
to thqse
granted by diplomatic law to the head of a diplomatic
mission. opioiom to
thq gontrary held in the past, and even exiressed i" ,o,n"
-;re recent
writings,
3re-ceqainly wrong. No norm of customary international law ean
now be cited to justi$ such views.
"
120
ILC, Yearbook,1967, vol. tr, p. 359.
ChapterXII
The categories of the Staff of
theMission
f:;]:fli
T.lr^*,:li
subject of international taw normafly comprises,
H-19ij:^"".,^._,,:.1""9,.t1i"""*;;;;;J*#"1'lH;"#j':fr
ffi ii"T":f"l!
3:1r,gg:{ar,^the.aqministrative;;J;.h"i:;r;'ff
ttq't
Experts of technical assistance missions
of both States
,l*r-t-,
national orgaruzations are a new category.
L. rnr
and inter-
DrpLoMATrc srAFF
The terms 'dipromatic staff:nd 'dipromatic

agent, are used by all the
diplomatic law instrumelts:-Their r"r!""tir"
o"tiriri"r, si";;by the first
article of the CDR are as follows:
d/
of-E dipromatic stafp are the members of the staff of

th9 miggion having diplornatic rank;
e/ a 'diplomatic agent' is the head of the mission or
a member of the
diplomatic staff of the mission;
the 'members
Because these definitions areinfact

atautorogy, the questionas to who is a
diplomat, has still to be answered.
From
the internal point of view of a state the diplomat is

an officiar of
the Ministry of Foreign Affairs whose
main task is t, ."pi"r""irris country
abroad, where he normalty spends

-ori otti,
the point of
view of internationar law *t i"t i. our
"*""r.'rro.
main concern,
the term dipromat has
a somewhat different meaning.
Herg in order
to be considerJl diplomat
two basic conditions have to be furfiIled.
on the .""-h*;;,h" sending
State has to have charged that person
*itrr."rtî, functions in one of its
external missions, and, on thi other, the
receiving state tras to have
accepted to treat that person according
to the rules of international
diplomaticlaw.
CDR 1, CSM 9, CCR 1, CRSIO 13 and45.
The question whether the person enjoying the diplomatic status is a

member of the diplomatic career or belongs to another service, is
irrelevant. Whatever the individual situation of these persons, the sending
State issues them with diplomatic passports attesting that they are charged
with diplomatic functions. But members of diplomatic missions are not the
only holders of diplomatic passports. Similar documents are often issued
to political personalities not necessarily officially representing their
governments (see above, chapterX, 4).
In most external missions people, who belong to the diplomatic staff
according to international law, are in reality a varied group. Besides career
diplomats there are among them military, naval, air, cultural, and other
affach6s, who come from dffierent government agencies. Similarly, members of aid and assistance missions usually are not diplomats, even though
they are treated as such.
Staff members of the American Agency for International Development
(AID) are a good example (see above, chapter W, 2).They do not belong
to the diplomatic career and are issued with diplomatic passports only
since L 979. Earlier, they were provided with simple service passports but,
according to co-operation agreements concluded by the US government,
the receiving States were granting them diplomatic status. Members of

French missions of co-operation also formally belong to diplomatic
missions and enjoy the corresponding status, even though they come from
government departments other than the Foreign Ministry. The diplomatic
status is now generally extended to members of technical missions in the
f,elds of transport, telecommunication, environment, etc. Most often they
do not have any contacts with the Foreign Ministries of either the s'ending
or the receiving State, but enjoy the'diplomatic status for the purposes of
the special mission'(CSM t h/).
The same is often true of delegations to organs of international
organizations. For instance, the secretariat of the International Telecommunication Union stated that 'members of delegations to conferences
of the ITU normally arenot diplomats and inmost cases arenotholders of
diplomatic passports'.2 This also canbe said of delegations to many other
SpecializedAgenices. Nevertheless, in all these cases delegates of member
States enjoy a quasi-diplomatic status granted them by the 1.946 CPIUN
and CPISA. These Conventions provide that 'the term representative
comprises also all the assistant delegates, counsellbrs, technical experts
and secretaries to the delegation' (CPIUN article IV section 1.6).
The CRSIO applies to delegations the terrrinology used by the CDR.
The distinction it makes between the diplomatic and the administrative
2 U,-C, Yearbook,
L22
197
l,
vol. p.
llL.
and technical staffof delegations (cRSIo 1 points 28 and 29) implies that
only those of the first group can speak in the name of the sending state.
The concept of diplomatic staff can also be extended to officiars of
international organizations taking part in their external missions. The
UNDP Standard Agreement provides that its missions, apart from the
resident representative can have a staff necessary to the proper per-
formance of its functions. Members of this staff, except toi toJauy

recruited nationals' enjoy the status granted by the cpIUN, which is guasidiplomatic.3 The same is true of the EEC delegations to ACp countri-es.In
fact 'representatives of Institutions of the European communities as well
as their advisers and experts'edoy in these countries privileges, immunities and facilities normally granted to international officials.a
2. coxsureR oFFrcERs
The first article of the CCR states that
'consular officer'means any person, including the head of the consular
post, entrusted in that capacity with the exercise of consular functions.
contrary to diplomatic agents, consular officers are defined here not by

their recognized status but by their functions. Some countries entrust thesl
functions exclusively to officials belorrging to the consular career which is a
distinct corps within the foreign service. In other countries the consular
and diplomatic careers are not separated, and officials of the Foreign
Ministry are entrusted with either type of functions according to needs.
when a diplomatic mission is entrusted with consular functions, as is
admitted by the cDR (3 par. 2), officials exercising them continue to enjoy
their diplomatic privileges and immunities (CCR 70 par.4).
Honorary consuls, known since the 13th century, are still suffisisntl,
important to have the whole chapter Itr of the ccR devoted to them.
Their particular character is defined only by distinguishing them from
'career consular officers (CCR 1 par. 2). T}ne ILC did not propose a
precise definition believing that there was litfle hope for states agreeing on
some uniforrr criteria. But, in its commentary to article 35 of the cCR the
ILC stated that
in the face of such divergent yiews, it would seem essential to find a

uniforrr criterion. The consul's position with regard to the administra3 UNDP, DP/107 article tr, paragraph 4, well
as
a The Lom6 Convention, Protocol no
as article
D(
3, article 1.
123
tive machinery of the State may afford a satisfactory solution. If the

consul is a civil servant, paid by the State and subject to its disciplinary
powers, he should be regarded as a career consul, and in other cases as
an honorary consul.s
3. rnr
NoN-DrPLoMATrc srAFF
The CDRmentions three categories of non-diplomatic staff: administrative and technical staff (consular employees'in consular posts), service
staff and, finally, private servants. Definitions given by the CDR are again
tautological: 'members of the staff employed in the administrative service',
or 'members of the staff in the domestic service of the mission'. There can
be no doubt, however, as to the need of the Convention making these
distinctions. On the one hand, this prevents any possible misunderstanding regarding the status of non-diplomatic staff of the mission. On the
other, it allows to adjust, according to the principle of functionality, the
status, privileges and immunities of each one of these categories to the
actual needs of their functions.
Difference in status concems not only immunities, which diminish with
each category, being absolute for diplomats and nearly non-existent for
the service staff. Functions which can be entrusted to these various
categories of the staff are also different. A member of the administrative
and technical staff can replace the heads of mission only in exceptional
circumstances and even then can deal exclusively with current administrative affairs. Still another difference is that members of the non-diplomatic
staff can be recruited locally without the mission having to seek the
consent of the receiving State.
All other types of external mission discussed in this book can have the
same categories of non-diplomatic staff.
4. rxpBnrs
As early as 1,946 experts were granted special status by the CPIUN and
the CPISA. Their relevant provisions read as follows:
Experts (...) performing missions for the United Nations shall be
accorded such privileges and immunities as are necessary for the
independent exercise of their functions during the period of their
s tr.-C, Yearbook,1957,vol.Il,p. t}Z;Zourek(L962),p.481;
t70.
L24
also Lee (1966), pp.
163-
missions, inctuolgfr" tT" sp-ent on journeys

in connection with their
' - -'----J missions (CPIUN VI section
i2;.
Privileges and immunities to which

they are entifled are Iisted in the
following sentence. rt shows that their
t#"dild;;;;;""sive
than
that granted officials of international ort*irrtiorrr.
Because of the large number of interiationar
experu active an over the
world, the term itserf had to be clarified.
Aretter oitrr" urregd council
points out that there are two types
of international experts. on the one
hand there are the experts mentioned in
the afo*-d;J;;;sion and on
the other, thosewhose status is identicalwiththat
of internationar officiars.
The letter adds that the former ones6
by reason of their status, are neither representatives

of Governments
nor officials of th9 organization concerned
but who, io, trr" independent exercise of their functio^ns (. .) must
enjoy certain pJW"g", *O
;
immunities. An example of srich',experts
on missions, would be
members of cerrain commissions of tire (rN
or
specialized
Agencies who serve in their individual
capacity *o "i;;
rr.iu, government
rePresentatives.
- ----"o
The second category of e4perts, according

to the same document
comprises technical assistance experts engaged
by the UN or by one of
the^speciatized agencies:
tn ui"* o}in" fact that ,.r.t
perform functions essentiauy simitar innature
"4p"rt,
to those of staffmembers
it is important that there.be equality of
treatment. For these reasons (. .
)
they are subject to-.brigation. uod u".orded
rights ,.ruri*tiuuy trr"
same as those of staffmembers.
(..)
To. that category of technical assistance

experts berong persons per^
forming
services on behaH of the uNDi,ano *tocaoE"'Lp"rutiorra
expe_rts, volunteers, consultants as
well as natural persons and their
(UNDP
Slandqd
Agreement
D(, 4 and S). f, tfr" same way
3mnfoVglsl
Protocol No 3 of the Lom6 coniention
refers to adviiers anJ experts ot
+" IEC delegates, who_carry out tasks rerated tr trr" i-pr".""tation of
the convention in the ACp countries. The
term ,e4pert,is used in a similar
sense
in many bilaterar agreements on aid and

technical assistance.
6 Practice followed
bv the UN (. . .), ,.c, yearbook,1. 967,
vor. rI p. 2g5; cf. also croswe,
(L952),pp.96-99.
725
5.
râlrrrr,res oF MEMBBRs oF THE MIssIoN
The diplomatic law Conventions, following an ancient rule of customary

international law, extend the status of the diplomat to members of his
family.
None of thefour Conventions, however, attempts to definewhat is to be
understood by family. In practice this may raise doubts as to the status of
certain persons. This omission is due to the fact that neither the ILC nor
the L961 Conference could agree on an acceptable definition.T
It is then up to States' practice to establish what is the exact meaning of
the expression 'members of the family of a diplomatic agent forming part
of his household' (CDR 37, CCR 48,49 and 53, CRSIO 36 and 66). This
wording is sufficienfly flexible to accommodate all kinds of concepts and
situations which have to be appreciated according to laws and traditions of
the sending State.As aconsequence, evena Statewhere onlymonogamyis
legal, will have to recognize as members of the family several wives of a
diplomat from a country admitting polygarny.International courtesy also
requires the receiving State to accept within certain reasonable limits other
particular family situations of foreign diplomatic agents.
The CPIUN does not expressly grant any particular status to members
of families of representatives of member States, but admits the possibility
of extending to representatives 'other privileges, immunities and facilities
enjoyed by diplomatic agents'(CPIUN IV section 11). This gave rise to a
general practice of treating their families in the same way as those of
diplomats. The UNESCO headquarters agreement alone gives some more
specific indications as to the scope of the family of representatives by
limiting it'to spouses and children of less than2L years of age' (art. 18).
The CRSIO uses the more generally accepted expression'members of
the family forming part of the household' (articles 36 and 66). International instruments concerning missions of international organizations
make no mention at all of families of their members. Most States, however,
treat them and their families as if they were diplomatic agents.s
6. rne
TNTERNAL HIERARcHy oF TIrE MIssIoN
Within bounds imposed by provisions of diplomatic law on classes and

precedence of heads of mission and on categories of missions' staffs,
sending subjects are free to decide on the internal organization of their
7 Cahier ( 1 96 4), p. 87 ;D enza (197 5), p. 23 3 ; Whiteman, v ol. 7, pp. 260 tr.
8 Analytical Study of Privileges and Facilities of tnternationally Recruited Personnel,
UNDP/ADM236 of March Llfhl975.
126
missions. This will depend on their traditions and the organ2ation of their
civil service. Normally the staff of Foreign Ministries is divided into

several classes, namely of ambassadors, ministers plenipotentiary, coun-
sellors, secretaries and attach6s. Depending on the importance of a

mission all or only some of these categories maybepresent amongits staff.
In the internal hierarchy of the mission the positions and responsibilities of
their members correspond to their rank and seniority. Among the

members of the more important missions there are also special attach6s
and counsellors each of themhaving special diplomatic staffs.
The organizatron of a mission can be made more complicated by the
existence of another, less visible hierarchy, specific to the political system
of the sending country. For instance, the highest ranking official of the
ruling party or the representative of the secret police may in fact be the
most important person within the mission, even though officially having
only a junior post.
The only constraint imposed by diplomatic law on the sending state
concerning the organization of the mission is expressed by the following
provision:
The precedence of the members of the diplomatic staff of the mission
shall be notified by the head of the mission to the Ministry of Foreign
Affairs or such other ministry as may be agreed (CDR t7, CCR r'1.,
CSM 9, CRSIO L5 par. La/ and,47 par.ta).
727
'
Nt-fiii'1a'il
Chapter XIII
Commencement of Functions of Members
of the External Missions
The basic function perforrned by members of any external mission on

behalf of the sending subject, is to maintain contacts and communicate
withthe organs of the receiving subject of internationallaw. Onemustthus
resort to international law, and more precisely to diplomatic law, to
deternrine exactly when their functions officially begin and when they end.
This chapter is devoted to problems related to the appointrnent of
members of different types of external missions and to the official
commencement of their functions.
1..
rne
pRIoR coNsENT oF THE REcEIvING srATE
Without ever challenging the principle of the freedom of the sending State
to choose members of its external missions, diplomatic law requires in
certain specific cases theprior consent of the receiving Stateto admitthem
to exercise their functions.
l.l.
The Agrdment
This consent, called agr4ment,is required, in the first place, for heads of
diplomatic missions. The 1961 Convention provides that
1. the sending State must make certain the agrdmenr of the receiving
State has been given for the person it proposes to accredit as head of the
4l|
mission to that State;

2. thereceiving State is not obliged to grve reasons to the sending State
for a refusal of agr6mcn, (CDR 4).
This article formulates an ancient customary ruleof diplomatic law. Even
though ceftain States, most notably Great Britain and the United States,
did not easily agree to this requirement, it has always been considered that
for the diplomatic mission to effectively perforrr its functions, the person
129
qffinFn-
in charge has to enjoy full confidence of the receiving state.

The agrhment
diminishes the risk of future difficulties in this."rp"Jt.
The wording o{
-9" article quoted above impries clearly that the
procedure to be followed
in questions of agr1ient is informal. The
expression 'make certaT' means a subjective conviction
of the sending
state which needs not
pg suppgrted by a formal declaration on the pari
{r
ojthe reggiving State. Thisis exptainea by the necessity orp.otecting
both
the sensitivities of the parties concerned and the repuiatio'n
of the p"erson
proposed for that post.
The practice of States concerning requests for agrhmenr
varies widely.l
P,lsgntially it consists in communiiating by diplJmatic
channers to the
nainiltry of Foreign Affairs of the r"""irrirrg
the n-ame and the
curriculum vitae of the person proposed fo=. "o,rntry
a.".editutio". mi.
uJ
done either unofficially in a discreJt way, or by an official
note "u,
stating
clearly the purpose of the d1marche. trtzhat is i-po.t*ri.
io tceep the
procedure out of the public eye.
. upon_receiving the communication, the State of accreditation studies
the problem and, when needed, conducts an inquiry
on its,;;or requests
additional informationfrom the sending State.,ihe answer
concerning the
agrdment should noJ b" much-delayed and be transmitted
by the same
channel as the initial request. rf. the agr1menl is refusJ,
*rri"r, is rather
rare, it may be due to th9
rgritical pa.t of the candidat"o, to his pubric
statements or activities which the receiving state considers
damaging to its
interests. Even though these reasons may remain
secret, the refusal of
agrdment often remains a sore point in the relations between
the parties.
T\e agrdmenr is needed for heads of dipromatic missions or ary rark
and thus concerns also the appointment of a charg6
d,atrai;; pba p,
titf).It does not concern, however, the designatioi" oru
"n d,affaires
ad interirn, even when he is to head a mission without
"rrurgla resident
ambassador; such nominations havê simply to be report"a
io m" vrirrirt.y
of Foreign Affairs of thc country of residlnce
(see p69ve, ciptet v ,2, 21.
Another-category of members of dipromati'c missions rili
neeo prior
approval of the state of accreditation. According to the
1 961 convention
in the
case of military, naval or air attach6s, the receiving

State may
require their names to be submitted beforehand, for its
appiovat (cDR
7).
In this case again the cDR offers protection to the territorial

state. The
reason is that these attach6s are in iact .official
spies, in the most sensitive
' M-y
pp.47-57.
130
examples are quoted by Moussa (rg7z),pp.5g-6g;

cf. arso whiteman, vor.7,
field of national defence. The above provision enables the receiving State
if not to control effectively, then at least to keep informed about nominations and recalls of this special category of diplomatic personnel.
The prior approval is also expressly required in the case of IJNDp,s
resident representatives and of delegates of theEEC.2Theappointment of
the resident representative which is the responsibility of the Director of
UNDP ts subject to the prior approval of the government concerned'.3
The request for this approval is transmitted to the Ministry of Foreign
Affairs of the receiving country through the UNDP mission, and if it has
'not
yet been established, in any other appropriate manner.In the case of
the resident representative the requirement of prior approval is particularly justified not only because of his involvement in certain internal
matters of the receiving State, but also because his nationality may
sometimes create dfficulties. An example of this is the case of a resident
representative who, while on active duty, was sentenced to death in his
absence, following a coup d'6tat in his native African country. As a
consequence his appointrnent to a new post in an African country could
have been a delicate matter. It happened, however, that the first
approached government gave him the agrimenl gladly.
L.2. The Consular Exeqtattur

The sending State is also free to appoint heads of consular posts but, as for
heads of diplomatic missions, the prior consent of the receiving State is
required. The procedure to be followed here is somewhat different than
forthe agriment.
Depending on internal nrles of the sending country, heads of consular
posts may be appointed either by the head of State, (especially in the case
of consuls general), by the Prime Minister or by the Foreign Minister.

Next, even though the CCR does not require it to do so, the sending State
may inquire by diplomatic channels whether the appointed candidate is
acceptable to the receiving State. This helps to avoid the possibility of a
later refusal of the exequatur (CCRIO).
Whether or not this early sbunding-has been undertaken, the sending
State issues the appointed person with a document generally called
'commission' (lettre de provision in French).It certifies his capacity and
indicates his full name, his category and class, the consular district and the
seat of the consular post (CCR 11 par. 1). This document is transmitted to
the receiving State by diplomatic channels.
2 UN Gen. Ass. resolution 2688
QffV), Annex, par.62 and article 228 of the Lom6
Convention III, respectively.
3 UN. Gen. Ass. resolution 2688
QO(V); also Langlois, p. 84.
t3r
,'
,,i*|ir
After receiving the commission, the receiving state may grant the consul
perrrission to take up his functions. This official authorization is called
'exequatur' (CCR 12). It is ussed by the competent authority and may take
the fgnn of a presidential or ministerial order or even of a diplomatic
note.a
Because the granling of the exequatur may take some time, the CCR in
its article 13, following a long established practice, offers the possibility of
the consul being admitted to the exercise of his functions on a provisional
basis. The corresponding decision which can be communicated verbally to
the diplomatic mission or even to the person concerned is without effect
on the granting or refusal of the exequatur. During the period of this

temporary authorization the consul enjoys the full status of head of the
consular post.s
The admission of the head of a consular post even on a provisional basis
creates for the receiving State a double obligation. on the one hand it has
to immediately inform the local authorities of the consular district, and, on
the other, take all necessary measures to enable the head of the consular
post to carry out his duties and to benefit fully from his status (CCR 14).
L.3.
The Acceptarrce of Memberc of Speci.al Missions
The sending state of a special mission also enjoys the freedom to appoint
its members (csM 8). But, contrary to the other instruments disCuised,
the cSM does not provide for any special procedure ofacceptance ofthe
head of a special mission, and does not even require a head to be

appointed at all (see above, chapter XI, 1). Before appointing the members
of a special missioru however, the sending state is under the obligation to
gve
to the receiving State all necessary information concerning the size and
composition of the special mission, and in particular th-e names and
designations of the persons it intends to appoint (CSM 8).
This obligation is based on a customary rule and corresponds to practical
necessities concerning special missions.6 In the first place, exact information on the composition of the special mission enables the receiving State
to organize its own mission according to the number, rank and importance
of its members. secondly, it helps to prevent incidents due to the presence
a Conference on Consular Relations, A/Conf.
25/6, artcle12, Commentary.
s lbi.d.,afiicle 13, Commentary
6lI-C,Yearbook,1967,vol. II,pp.51ff.;Bartos(1963),p.500;Donnarumma
(Lg72),
p. 42;
132
Pr
zetacm*
(L 9 8 t),
p. t22.
in the mission of persons considered undesirable by the receiving State.

The receiving State may, in fact, refuse to admit a mission or one of its
members without having to justify its decision.T
This is well illustrated by the case of a special mission of Arab States led
by King Hussein of Jordan, which in 1 982 visited several capitals to dicuss
an Arab T,eague plan for the Middle East. The British government,
however, refused to receive it, because it included among its members an
official representative of the PLO. Finally, in February 1983 it was agreed
that the PLO representative would be replaced in the mission by a former
mayor of one of the cities in the occupied territories banned earlier by
Israefi authorities.
2,
THE TAKING-UP OF FUNCTIONS
Whereas the appointment of members of anexternalmissionis exclusively

within the internal competence of the sending State, their taking-up of
functions also concerns the receiving subject. Consequently, rules of

diplomatic law indicate the exact point in time when their official functions
begtn.
2.L.
The Headof Mission
Ambassadors. The speciat consideration due by the receiving State to the

head of a foreign mission is expressed by a traditional ceremony of
presentation of credentials which marks the official taking-up of functions
by the new ambassador. The credentials, also called letters of credence,
are a traditional form of full powers addressed by the head of the
accrediting State to his counterpart in the receiving State. In spite of the
current trend to simphfy protocol requirements, modern republican and
democratic regimes have taken over this traditional ceremony from the
etiquette of earlier royal courts.
In most countries this is a very colourful ceremony organized under the
responsibility of the protocol services of the Foreign Ministry. Normally
the chief of protocol in an official vehicle takes the new ambassador,
followed by senior members of his staff, to the residence of the head of
State where he is greeted by the national guard and national anthems. The
ambassador is then received by the head of State to whom he hands over
his credentials and delivers a brief speech, the text of which has been
communicated earlier to the Foreign Ministry. After the answer by the
head of State and a brief private audience with him, the ambassador
7 Bartos
(1
963), p. 495; Maresca ( lW 5), pp.305-3 13.
133
retums to his embassy the way he arrived,

accompanied by the chibf of
protocol.s
The cDR clearry points out the regal meaning
of this ceremony:
1. The head of the mission is considere! as

having taken up his
functions in the receiving State either *h* rr"
irrJ jresented his
credentials or when he has notified his arrival
*o
id;
credentiars has been presented to the Ministry
"t-r,i" ffi; of the
otro."igrituirs
receiving state, or such_other ministry ur,,uy
b" ugr""f,i" accordance
with the practice prevailing in the receiving sLt"
*iri.i-rrruu be appried
in a uniform manner (CDR 1 3).
This provision also al]ows the receiving State
to abandon the traditional
ceremony and have the new heads of diplomatic
missions take up their
functions with ress formalities. The officiai presentatio"
or.r"o*tiars may
nevertheless be maintained for purery ceremonial
p.rrpor"r. wt utever the
case, the receiving State is under strict obligationio
iuoia i"'trris respect
any form of discrimination among ambassadors
of ditrerent countries.
The head of mission accredited-to the minister.f
ir;;ig"
namely
the charg6 d'affaires
"filrs, to the
(en
titre),
presents
oi.e(
his credentiar
-ey
minister during a much less ehbbrate ceiemony
(CDR 1g).
The article quoted above makes another important
point:
. T" *9er of presentation of credentials or of a true copy thereof

will
be determined by the date and time of the arrival
of the head of the
mission(CDR 13).
?
No freedom whatsoever is reft inthis respect

to the receiving State. It has to
follow stricflythe orderof arrivars whi.hi,
-or"orless beyindits control.
ojggmepracricarimporrance in so faru, tt orJ"i-Jt"piceoence
JHr.fu
ot
heads of diplomatic missions depends on
"
this p...ir"-o-Iri1cr.
auove,
chapterXI,l).
. B.oth gourtesy and efficiency require that, depending on the schedure of

thehead of State, thepresentaiionôf credentiri.
rh;J;
soon
as possible after the arrival of the head
of mission .o"."-r""0. It may
!1Rg"r', however, that p9 ce-remony is derayed, for instance to mark the
displeasure of the receiving state with the
accrediting state.
oi;;h""s
But in such
8 For more information

on the ceremony of the presentation
of credentials,
i;.Y; ilW::, f #'{:#,K':ff
t34
'
pp' sa 8 tr'i
M*
ssa
ltst
il,-
see article
p.;;;;.* I
by
erci,
cases the taking-up of functions by all the ambassadors who arrived later is
necessarily also delayed.
We still have to answer the question what, according to diplomatic law,
is the exact meaning of the expression 'taking-up functions'. It is obvious
that it does not concern the internal functioning of the mission. Its new
head needs not to be officially recognized by the receiving State to take up
his responsibilities inside the mission. He is not supposed, however, to
establish official contacts on behaH of the mission with the authorities of
the receiving State.? It is true that upon his arrival he takes up contact with
the Foreign Minister in order to hand him a copy of his credentials. In all
other maffers, however, the interim chief of mission continues to bear the
external responsibility for the mission and its actions. In principle, the
sameis true of the official contacts withthe diplomatic corps, exceptforits
deanwhom the newly arrived ambassador is expected to pay an earlyvisit.
Other Heads of Mission. The taking-up of functions by heads of the other
types of external missions does not require elaborate ceremonies. The

head of the consular post, as mentioned already, can take up his functions
provisionally even before receiving tJare exequatur.
The beginning of functions of the head of a special mission also takes
place without any formalities:
The functions of a special mission shall commence as soon as the

mission enters into official contact with the Ministry of Foreign Affairs
or such other organ of the receiving State as may be agreed (CSM 13
par. 1).
The same article in its next paragraph says that it is not even necessary for
the special mission to be presented to the authorities of the receiving State
by the permanent diplomatic mission of the accrediting State, nor to
submit its leffers of credence. The presentation of the mission is, however,
a matter of courtesy and the credentials should be submitted anyway in an
informal manner.lo A special missionwhichis to meet with a delegation of
a third State (CMS L8) commences its functions upon entering the
territory of the receiving State.
The instruments in force do not mention any formal procedure to mark
the coinmencement of the functions of missions of international organizations. But according to common practice the resident representative of
UNDP and the EEC delegateupon their arrival pay avisitto theMinistry
e Whiteman, vol. 7, pp 58-73.
r0 Maresca (1.975), pp. 32L-33};Przetacznik (1981),p. L25.
of ForeignAffairs. The date of arrival should benotified

in advance to that
ministry.
frrt, permanent missions of States to international organizations

used to be establishl{yr{rout any formarities. But
alread/at its 3rd
session in 1948 the uN General Assembry in its resorution
257 (w)
formulated certain rules co_ncerning the taking-up or
ru".tio^ by ierl
manent representatives and senior members of their
star. eccorimgty,
the.permanent representative has to be issued with letters
of credence
addressed to the secretary-General of the organization
o, trr" Director
General of its secretariat. Their contents foliow .ir*rv
trrl pattern of
credentials of heads of diplomatic missions. Depending
on tt pru.tice of
"
$9 sgnding State and the diplomatic rank ortrr" i"*ri""t ,"presentarive,
th\ dgcuryent-1.
by
the
Minister
ot roreign anairs ioi co,rnsetto.s
llgn"d
and charg6s d'affaires and
the
head
of Jtate for ministers preni_!y
potentiary
and ambassadors.l
The CRSIO simply codifiss this practice:
The credentials of the head of mission shall be issued

by the Head of
State, the Minister of Foreign Affairs or, if the rules
of thJorganization
so permit, by another competent authority of
the sending
-'--e State
--- and shall
be transmitted to the Organization (CRSiO f
b;.
The form of that transmissionestablished bypracticehas
evolved overthe
yeals.
At
present the new pennanent repreJenhtive hands

his letters
credence to the Secretary-General or the organization

Jrrirg
visiJ, as soon as possible after his arrival. TtrE
date of trrir ri.iiir"
to the actual taking-up of his functions.12
of
ti^t formal
rot related
The taking-up of functions by interim heads of missions

does not
require any formalities, except, oi course, the notification
oi m" Ministry
of Foreign Affairs or of the secretariat of the organization
t" th" case of a
permanent mission (see above, chapter X,2).2.2. Delegations
The relevant
provisions make no distinction as to the status

of the heads
and other members of delegations to organs of international
or!*iru,io*
and to conferences and of speciar misslons.In fact,
d"[grti;1-;ffi'
one member only or be composed of several persons "

of the"sarne rank. The
rr
Les Missiora perma nentes,voL l, pp. 146tr

t2 For ttre practice folowed
io d"o"uu, see Guidcrirus on Diplomab coutesy in
Gencva, elaborated by the Dipromatic committee
in Geneva and pubrished by LINoG (cf.
supr4 chapterX,5).
136
practice concerning the commencement of functions, codified now in the

CRSIO, makes no difference between members of delegations:
The credentials of the head of delegation and of other delegates shall be
issued by the Head of State, by the Head of Government, by the
Minister of Foreign Affairs or, if the rules of the Organization or the
rules of procedure of the conference so permit, by another competent
authority of the sending State. They shall be transmitted, as the case may
be, to the Organization or to the conference (CRSIO 44).
The Rules of Procedure of the UN General Assembly, which served as

model for most other organizations, are more specific on this question:
The credentials of representatives and the names of members of a

delegation shall be submitted to the Secretary-General if possible not
less than a week before the opening of the session. The credentials shall
be issued either by the Head of State or Government or by the Minister
of ForeignAffairs (rule 27).

Then the Rules indicatehow the above provisions are to be implemented:
Credentials Committee shall be appointed at the begrnning of each

session (...) It shall examine the credentials of representatives and
report without delay (rule 28).
Similar provisions are also included in the Rules of Procedure of conferences held under UN auspices.
Surprising as it might seem, States have not always complied with these
simple requirements of form. For instance, rn 1967 at the 5th special
session of the UN General Assembly the President of the Credentiats
Committee reported to the Assembly that full powers of a number of
delegations did not conform to the provisions of rule 27, either because
they were transmitted by simple telegram or because the names of
delegates were noffied only by the respective permanent representatives.l3
.Several years later, rn1,970,the problem of full powers which normally
was a forrral questiorl became a political issue. At the beginning of the
General Assembly's 25th session the report of the Credentials Commiffee
stated that the credentials of eighteen delegations did not comply with the
forrral requirements mentioned above, and proposed that they be provisionally admitted to participatependingthe situationto be remedied. At
13
AFD1,1967,p.365.
ffiPi--
the same time, the committeeproposed, after discussion, not to recognize

the full powers of the south African delegation even tirough they-were
properly signed by the Minister of Foreign Affairs. rhe legal cbunsel
consulted by the president of the Assembly expressed the opinion that the
suspension of rights and privileges attached to the quality of member
of
the organization, namely its right to participate in the work of the
Qlsanization, by the expedient of not recogniiing the full powers of its
delegation, would be in violation of the uN Cliarter. This led Mr. E.
Hambro, President of_the-Assembly and author of the most comprehensive commentary of the UN charter,ra to state that he considered the
decision of the Assembly to be
firm condemnation of the policy of the South African Government but

did not mean that its delegation was to relinquish its seat in the UN nor
to abstain from participating in the work of the Assembly.ls
a
similar procedure was followed by the next General Assembly,s

sessions. The situation changed, however, n rg74 when Mr. Buteflika,.
Algerian Foreign Minister and president of the 29th session of the
Gê1er{ Assembly, declared that the recurring rejection of the full powers
of the south African delegation meant that the Assembly refused it the
right to participate in its work. This interpretation, u".ording to him, did
not affect the status of that country within the organizatiJn. This was
opposed by the western countries who were, however, only a small
minority.l6
since then the south African delegation is systematically barred from
actively participating in the work of all bodiei, organizations and conferences of the uN-system. several years rater Arab states applied the
same tactics to Israel but did not achieve the expected result.
The present author submits that the opinion of the UN legal counsel and
the practice followed by the General Assembly,s presideits up to L973
were right. In this case, as i, ary other, using rules of procedure to attain
aims which are beyond their scope, contribuies to undlrmine the foundations of any existing legal order which may result in its collapse.
The commencement of functions of the mission's staffmembers, whether

diplomatic or administrative and technical, is only of interest to the
1a
Goodrich LLM., Hambro E., charter of the (tniud Natioru, comrnentary and
Docurnents, 3rd ed., New York, Columbia University press, 1969, 7 32'p,
ts AFD1,t970,p.480.
t6 AFD1,1974,p.488.
138
sending State. For the receiving state only the moment of their arrival,
departure and termination of their functions is important. The cDR
contains specific provisions on this question:
1. The Ministry of ForeignAffairs of the receiving State, or such other

Ministry as may be agreed, shall be notified of
a) the appointment of members of the mission, their arrival and their
final departure or termination of their functions with the mission (cDR
10 par. 1).
The same duty of notification also extends to their families, to members of

the service staff and to private servants; it concerns also the engagement
and discharge of personnel recruited locally. paragraph 2 of the same
article adds that these notifications, whenever possible, ihould be given in
advance.
similar notifications addressed to the Foreign Ministry are required for

(ccR 24).T\e sending State of a mission to an
international organization is under the obligation to give the same
noffication either to the organization which forwards it tothe host state,
or direcfly to the latter.
The obligation provided for by the uNDp standard Basic Agreement
seems to be less strict:
the staff of consular posts
. .. The LINDP shall notify the Government from time to time of the
names of the members, and of the families of the members, of the
mission and of changes in the status of such persons (I, 4 bf.
on the grounds of notification the receiving State grants diplomatic status

to members of missions and to their families. when the sending State fails
T trr obligation, the authorities of the receiving State may reGe to grant
the person concerned immunities to which, in principle, he is entifled. In
some instances this refusal has been maintained even after the mission
concerned has been nolifred ex post that the person belongs to its staff.17
The vitianu case, related to the question of notifications and a cause
cdlibre in diplomatic law, should be briefly related here. Mr. vitianu, a
Romanian national resided in switzerland as representative of several
Romanian companies. on 18 June 1949 the Romanian legation in Bern
informed the federal government that Mr. vitianu had been appointed
economic couniellor olthut legation. Several days later, Swiss authorities
informed the Romanian legation that the question was under study and on
July 1 1th that the appointment of Mr. vitianu as counsellor of the mission
17 Many cases
are reported in Whiteman,
vol7,pp.108-126.
139
was not acceptable. Two days later Mr.
vitianu was arrested, accused of

rribunj refused to
espionage and eventually convicted. The Federal

recognize his diplomatic status saying that
the argument according to which rights related to the status of
member.
of a diplomatic missien can be created without the consent of the

receiving state, without its will or its participation, is a completely
unjustified extension of the principle of-the inimunity of the staff of a

and in particular is totally incompatible with the sovereignty of
lussi_on
the state of accreditation. The latter his to have the possibiity to
express its consent'or to oppose the appointment and the ,e..riting
diplomatic status not only of the head oi the mission but also of othei
members of its staff.lS
The obligation of noffication aims precisely at providing the receiving

!t?te with the opportunity to take a stand. perrranenimissions anJ
delegations are under th9 same obligations (CRSIO L5 and 47).
In addition to conventional obrigations under discussion
states
require that protocol services of the Foreign Ministry be informed
""rtui, of the
movements of members of foreign niissions also within the country itseH.
In the case of countries sparsely populated or subject to internal tioubles
this requirement may aim at granting foreign diplomats adequate protection. In other cases it n-ray simply be regarded as a way of exerting some
control over them (see below, chapter XXItr, 3).
t8 Annunire
t40
Suisse de
Droit Internatiorwl,lg50,p. 146.
ChapterXtV
Termination of Functions of Members of
External Missions
The official functions of any member of an external mission of a subject of

international law at any moment may come to an end by decision of the
sending or the receiving State. Obviously the termination of an external
mission discussed above (chapter )C) brings to an end all official activities
of its members.
1. rnnrrnNlrloN
oF FUNCTToNs By DEcrsroN oF TIrE SENDING suBJEcr
The CDRprovides that
the function of a diplomatic agent comes to an end inter alia: a) on

notification by the sending State to the receiving State that the function
of the diplomatic agent has come to an end (CDR 43).
Nearly identical provisions concern members of both consular posts

(CCR 25) and of permanent missions and delegations to international
organizations and conferences (CRSIO 40 and 69).
The above articles make no ffierence between the termination of
functions of thehead of themissionand of the othermembers of its staff.In
actual practice, however, there exists a difference similar to the one
concerning the corrmencement of functions. Accordingly, the notification
of the termination of functions of an ambassador is made by way of letters
of recall addressed by the head of the sending State to his counterpart in
the receiving State. They are normally handed over by the ambassador to
the head of State during a private interview. Even when the recall of the
ambassador has political reasons or results from his behaviour considered
as inappropriate by the receiving State, the reasons grven in the letters of
recall are not specific. When, on the contrary, relations between the head
of mission and the authorities of the receiving State have been good, the
head of State in return hands him a written reply in which he praises his
contribution to the development of relations between their two countries.
L4t
on that occasion the
ambassador may also be presented with a national

decoration of the receiving State.l
If, for practical reasons such as illness, urgent transfer, etc., or for
political motives, the farewell visit does not take place, the letters of recall
of the ambassador are handed over by his successor along with his
credentials to the head of State.
The reasons for temporary recalls of heads of diplomatic missions also
may be either practical or political. In this last instance a temporary recall,
'for consultations', may in fact turn out to be final. In such cases the new
ambassadormay be named muchlater, depending onthe duration andihe
importance of the tension between the two parties.
The end of functions, Iike their begi4ning, is to be notified by the mission
to the Foreign Ministry of the receiving country.In normal circumstances
the notification is made well in advance so as to leave enough time to the
agent concerned to pay the farewell visits required by diplomatic courtesy.
The exact date of the end of functions of a diplomatic agent has to be
stated with precision, so that authorities of the receiving State know
exacfly from when on official business is to be carried on with his
successor, for instance with the charg6 d'affaires. For heads of mission that
date corresponds to the handing over of letters of recall; for other

members of the mission it has to be stated in the corresponding noffication.In all cases, some reasonable time after that date is left to the agent to
make arrangements for his departure.
No written rule refers to departure formarities of heads of missions of
States to international organizations and of those of the organizations. In
actual practice the procedure is similar to that followed at the time of their
arrival.
2.
rBnIrrrNarloN oF FUNcrIoNs RBSULTING FRoM A DEcIsIoN oF THE

REcErvrNG
srlre
(orcr-ARATToN oF pERsoNA rorv
2.L. Members of Missions
onara)
to States
customary rule, as ancient as modern forms of diplomatic relations,

authorizes the receiving state to refuse the presence of a diplomatic agent
whom it considers unacceptable for whatever reason. Ai first, r.rch a,
undesirable agent used to be simply expelled. From the 19th century
onward, the practice was established to request the sending State to recall
such a diplomat, by declaring him persona non grata.z The onty point
1 Cahier (1964),p.127; Satow
(1979); Wood and Seres, p. 43.
2 For a review of practice,
cf. Satow (1 979), pp. 1 7 g-1 g6l whit"*-,,
t42
or. 7,
p. 92.
where the practice of states differed was whether the motives were or were
not stated.
The provision now in force reads as follows:
The receiving State may at any time and without having to e4plain its
decision, notify the. sending state that the head of the mission or any
member of the diplomatic staff of the mission is persona non grata or
that any other member of the staff of the mission is not acceptable. (. . )
Any person may be declared non grata or not acceptable before
arriving in the territory of the receiving State (CDR 9 par. 1).
A few comments are needed on this point. First, it has to be remembered that the requirement of obtaining the agrdmcnl prior to the
accreditation of a head of mission aims at preventing the admission of an
undesirable person. It happens, however, that the undesirability of the
future head of mission comes to the knowledge of the receiving State only
after it has granted the agrimenl. This may be due either to the late
discovery of facts unknown before or of the behaviour and statements of
the appointed ambassador at a later date. Under such rather exceptional
circumstances the head of mission may be declared persotu non gratlt
evenbefore arrivingin the territory of the State of accreditation. The same
applies to other members of the mission requiring prior consent, namely
military, naval and air attach6s.
After the arrival intheterritory of the receiving State anymember of the
mission can be declared persona non graia, whether belonging to the
diplomatic or the administrative and technical staff; in the latter case the
term used is 'not acceptable'. The earlier practice of treating such cases
with much discretion, is now often abandoned, except between States
otherwise maintaining good relations. Wide publicity given to cases
involving allegations of espionage and of other abuses of the diplomatic
status serves essentially propaganda purposes.3
The declarati on of persona non grata creates a specific obligation on the
part of the sending State:
. . .In such a case the sending State shall, as appropriate, either recall the
person concerned or terminate his functions with the mission (.. )
(CDR9par.1).
The corresponding rights of the receiving State are established by the next
paragraphof the same article:
3 Article by B. Lazitch and Ch. Jelen, L'Express (Parir), Nov.
5
1982, no. 1634, p. 36
reports many other similar cases..
143
If the sending state refuses or fails within a reasonable period to

carry
out its obligations under paragraph 1 of this Article, theieceiving
St#
may refuse to recognize the person concerned as a member of
trr"
mission(CDR 9 par.Z).
lhe'rgryonable period'is usually very short and should not exceed a few
days. This is confirmed by the practice of states, which in
cases of
espionage, for instance, give the person concerne d,24 ot 4ghours
to leave
the country. The refusar byFg receiving country'to recognize the person
concerned as a member of the mission, constitutes thJsanction'of
the
violation of the above obligation. Even though it may, by law, involve
the
detention and indictment of the person concdrned, i, u.toa piuctice
State
authorities use coercion merely to expel him from their territory.
The declaration of persona non girata is not applicdble as such
to the
family of a mission's member. Their special statusis only an extension
of
$at of the diplomat, and its refusal would cause prejudi." to his rights.
But, on the other hTd
F" diplomatic agents uears nru responsibilitifor
the behaviour of his family. consequenfly he may be d edrrrr'i persona
non
grata as a result of the.misdemeanour of anyone of his iurnly.
rn"
r-gc9iving slate may, nevertheless request the deiart,re
of a member of a
diplomat's family.
si*lq d:9 apply ro other rypes of missions exchanged by States.In its

draft of the ccR the ILC restricted the possibility of aEchrnrg a
consular
persona non grata.According to the draft this *"ururJco.rld
?gent
only
be applied by a member of.a-consurar post whose.behaviour
would givl
reason for complaint', which excluded general political reasons.
This
version, protecting consular relations frori politicir i"t"J"r"*e,
was not
adopted by the vienna conference. Following amendments proposed
by
Austria, Mexico and switzerland the provisiJn of article zs of irre
ccn
was brought into line with that of the cDR (art. 9).a Accordingly,
when the
sending State does not recall within a reasonableieriod ottirie
a consular
9fficer declared persona non grata,then the r"."iuirrg State can withdraw
its exequntur (CCR 23par.2).
According to article L2 of the csM the receiving state can at any
declare persona non grata the head or any 6ther member of
a
special mission. In actual practice, however, states;ery seldom
use this
qossililitr,Blt at any moment the receiving State can lrtorm the sending
statg by diplomatic channels that the head or a member or trre-ffii
mission constitutes an obstacle to achieving its objective.s This
is not
possible, however, in the case of a specialirnissionparticipating
in an
a Conference on
Consular Relations, A,/Conf.2 5/C.L/L.L34and L.149.
5 Bartos (1963),p.497.
L44
international conference convened by the receiving state. It prevents the

receiving State from exerting pressure on the participants in that conference.
In its commentary to the CSM the
ILC considered it
advisable to point out that, in accordance with a well-established

practice, the procedure of declaring persona non grata does not apply to
such persons as a Head of State, Head of Government or Mniitei of
Foreign Affairs when they participate in a special mission.6
The receiving State can always indicate in advance that it considers the
as unwelcome.
Even though the expression persona non grata is not to be found in
instruments concerning external missions of international organizations
there can be no doubt that the receiving State can at any moment request
the recall of anymember of such amission.
visit
2.2. Members of Missions to International Organizations

The situation is more complex in the case of representatives and delegates
of member states to international organizations. can the host
State
request their departure? The instruments now in force do not answer this
question directly. But they contain several important indications.
In the first place, the conventions on privileges and immunities of

international organizations as well as their seat agreements clearly state
that the special status is granted to delegates and representatives onty in
the interest of their functions. It means that any use of this privileged stitus
for other purposes is a violation of the established rules. The relevant
instruments draw a clear conclusion from this:
consequently, a Member of the united Nations not only has the right
but is under a duty to waive the immunity of the representative ir *y
case where in the opinion of that Member the immunity would impede
the course ofjustice, and it canwaive itwithoutprejudiceto thepurpose
for which the immunity is accorded.T
To this explicit obligation of the member state corresponds an implicit

right of the host state. It is based on its territorial jurisdiction, and consists
in making sure that this obligation is respected, if need be by requesting the
6 Il-C, Yearbook,
7 CPIUN article
Lg67,vol. tr, p. 351.
rv
section 14; also the seat agreement with Switzerlaud, artide
rv,
section 12.
145
ffi ilg"T3:::::.^:1,9"g"-l,:quteconcernedrecalred.rhisimpricit
lf1,",":::1ii::::q".1wh:n.tdstatiigranteotorepresent"'r*rff
{_i:JTn::^T::g::-q?"sisthat;iJiffi;;;;",#;iJl;:,tr;
*:l:*::*:f^,::fl{1":.ot."*u".-stu't"J';;l;;;;#:;;:,#kT;:
grqa
under the same conditions as
diplomats.s
Ii:* T jlr_,fl,| li, lI' J::p.ct-ii,r,. t"ited Nations head quarters

H::T:::fg.g:"u1r1"gst1Gswhos9eou"__""i*u^J."pffi#ffi,;
to
representatives of member States
and to their staff
the same priv,eges and immunities,

subject to corresponding condi|ons_gd obligations as it accordr --r-v-'^*Bv v'vvJD 4uL
to it
(art. Y sect. L5,4).e
;G#;d;""dr;:redited
Furthermore, the US government

also predged not to request the
deparfure of members of permanent
missions and delegations
otherwise than in accordance with
the customary procedure appricabre
to dipromatic envoys accredited to
the u"it.i dt":t",
iv,; ct. Li,
rr],
In implementing these provisions whenever

deemed necessary, the US
Secretary of State, can- inform,
ur tt
may be, the international
organization of a foreign gou.*"rt "-'.use
that he considers undesirable the
presence in the American territory
of an international official or
a member
of a mission' If the person concerned
does.not reave the ."*,o *"#I"j
reasonable period of rime, then
the a,,oi.* il hr;;;-;iino
ronger
recognize his immunity from jurisdiction.
rrr" s".r"iury
is arso
entitted to ignore i.ro*riti"r uy]"giril;"
"ibl""
o" i"t"*utioiilig*irutior*
any State wtrictr io", ,ot grant simitar
i,,ri,roiti", to
Because of the l*g:
qd growing number of diplomatic personnel
accredited to internationa irganizitl.^
trr" imprementation of these
rules may create difficult proui"-*-ortcan
mention, for instance, the
case of the permanent representative
of vietnam to the united Nations
in
New York who was dlchred p;;;;";'
non grata by the American
ff#;Hf
,#:"T*i"?l_.:lX:,::,1g::i:l with.France, articre 18; simi tarty,switzerland

e.J{1*:,"ff""j,:"I::1,:if:1;;i-"*",;#;;#;ffi fi :ffii:HHf :TH
Committee
33ff H"il#:ffi
of
40th.*"-*'uv,r,"Jiiil;,U#""liH"3,",i";i:H:"J"*:
meetirrg; Vettovaglia.
^:,t^,'ff
fe Whole,
tt;j<rlnli
nrt
Legislation
on Foreign
Relatio-ns, vol.
pp. 90ff.
-
146
I*,iii,,LJ nutAct of 1945, sections g and g,

ff," p. 391. On the practices, cf. Whiteman,
vol.
govemment. This incident brought about a lengthy discussion in the UN

Committee on Relations with the Host State.1o
The step was taken when in a case of espionage before the District Court
of West Virginia it was established that the accused, an American national,
had acted with the complicity of the permanent representative of Vietnam
to the UN. As the two countries had no diplomatic relations, the American
government on the Lst February L978 got in touch with the Vietnamese
mission in New York, with the embassy of Vietnam in Paris, and with the
UN Secretary-General, and then, three days later, requested the recall of
ambassador Dinh Ba Thi. According to the American delegate it was the
first time, out of 32 instances of expulsion of diplomats accredited in New
York, that such a measure concerned a permanent representative himself.
The delegation of Vietnam, which immediately referred the matter to

the UN Committee on Relations with the Host State, declared this step
illegal. It accused the American authorities of violating section 1 3 b/ of the
Headquarters Agreement by not consulting the Vietnamese mission
beforehand as well as article 105, paragraph2 otthe UN Charter.It also
requested the GeneralAssemblyto impose on thehost countrythe obligation to consult the UN Secretary-General before declaring persona non
grata a representative of any member State.
The subsequent discussioninthe Committeehelped to clarify a number
of important points. The legal counsel to the Committee pointed out that,
according to a study prepared by the Secretariat'it was important to make
a clear distinction between the expressions 'in consultation with'or'after
consultation' on the one hand, and on the other, an expression like \uith
the consent of. ...11 It was stressed, further, that no provision of the
Headquarters Agreement could be construed as barring the host State
from taking measures necessary for its own protection.In addition, section
L3b/ 3/ of the sa:ne Agreement provides that persons entifled to diplomatic status cannot be requested to leave the country otherwise than
following procedures applicable to diplomats as set by article 9 of the
CDR. And this article does not require the receiving State, which in this
case is the host State, to explain its decision to declare a person non grata.
Concerning the role of the uN Secretary-General in cases of expulsion
of a permanent representative, it was pointed out in the debate, that he had
to remain passive and had only the right to be kept informed. As rightly
stated by the delegate of Canada,'it was never admitted in international
law, not even by the L975 Convention, for the international organization
to play in similar cases of disputes between a member and the host State a
more active role thanthat. The reasonfor this is that the territory inwhich
10
UN doc.: A/
33 /26, paragraphs 7
rr UN doc. 4,/32/26
to 46; also Chronique, RGDIP, 1 978, I
1 1
8.
par. 29.
L47
the internationar organizaaon is seated is not under

its sovereignty but
under that of the host State.,l2
Before the discussions in the committee were over,
ambassador Dinh
Bah Thai left the United States.
Another instance is the case of a syrian diplomat, member
of the
mission to the uN in New york. when on vaiation

in his .orrriry i,
october L972he was refused the Americ- uir.r".or;, f*
returning
to his post. The reason given for this refusal *u, tt ut *t
it! in New york
he was regruiting guerr,las._cgntrary to the opinion
by ch.
Rousseau it seems that this decision was perrecfly
l"ga"6*r"o
ina this for tlvo
reasons.l3 on the on9 hand the headquarters
agreeirent gives the host
state a cgrtail right of control over thelstaff of plrmanent
ilissions, and,
on the other, the cDR, appricable by virtue of that Agre"-"rl,
permits to
declare a person non grata at arry moment. The American
authorities
therefore, were not under the obligation either to tur,"
trrut
before
the departure of the diplomat foivacation or wait for -"usure
his return to New
York.
The question now has to be asked what is the position
of the cRSIo
of members of missions
JJ"gutions
to
,:T:111g^,ft-"_
"*n"trion The ILC,s
mternafionar organizations?
draft provided that in case of a
grave criminal offence or of manifest interferen."
i" trr" i"t"-a affairs of
the host State by a member of the mission or
delegutio, to tt irrternationar
organization, the sending state was under ttre
"
Jurgatiorr;itil
to waive
the immunity of, or t3 qecan_the person concerned.il
This draft, however,
did not provide for the host stat6 to take any
action in view of the recall or
expulsion of any suchperson.
The text presented by the ILC wourd have left
the host States without
any nogibility of taking action in cases where
trreir vita interests were at
stake. This would hlvg
contrary to a practice well-established since
the beginning of the LJN.leen
At the 1973 vierrna conte;;;il;st states
yrth the backing of other western countries utt"ropt"a to fifl in this
important lacune. Th\ was strongly opposed by
sociaist anorrriro world
countries.ls Finally,
tong oeuati, the clnferen." ugr""o on a text
proposed byFrance t:.-u
which reads as follows:16
*J
t2 lbid.,par.29.
]lM conf.
lhroniWe, RGDI?, L97 3,p. LL91..
on RSIO,
vor. II, doc . ercorrt.az ru, article 75; now

this provision is contained in
par. of the CRSIO.
1s In the
first prace amendments were proposed to article
9 in view of allowing the host
State. to declare non acceptable any member
oi u *rrior,
t"r.r"
rrr.
irio that State.
But these amendments were rej".t"d cf.
""r.y
- coof. oon$o, "u.r,
uot. II, doc.A/coJ.ii
par.ss.
16 Conf.
on RSIO, vol. I, Committee of ttre Wtroti SS'
ro +f -""tirrgr.
-
aticleTT
---'-' ttl
148
4. Nothing in this article shall be construed as prohibiting the host State

from taking such measures as are necessary for its own protection.In
that event the host State shall, without prejudice to articles 84 and 85,
consult the sending State in an appropriate manner in order to ensure
that such measures do not interfere with the normal functioning of the
mission, the delegation or the observer delegation.
5. The measures provided for in paragraph 4 of this article shall be
taken with the approval of the Minister of Foreign Affairs or any other
competent minister in conformity with the constitutional rules of the
host State (CRSIO 77).
The Conference finally adopted this text, even though with a small
majority (33 votes for, 30 against and 8 abstentions), orly because it
makes reference to the two articles on the obligatory consultation and
conciliation in cases of dispute. In spite of this restrictive clause, this article
confirms the right of the host State to request at any time the sending State
to recall any member of its mission or delegation, the latter having the
option of not complying immediately. This request, however, contrary to
the declaration of persona non gatu , has to be justified and approved by
the Foreign Ministry of the host State.
After having studied the character, the structure, the composition, and
the conditions of establishment of different types of external missions in
theprevious Parts of this book, we shall now turn our attentionto the rules
of diplomatic law concerning the status of missions and of their staffwhich
enable them to carry out their tasks.
149
PAITTFO{JR
Status of the External Mission and of its
staff
The status of externar missions of States

and of their staff is normalry
described as'diplomatic prilileger *Ji-r""ities,.
This traditional terur
no longer colresponds to the .Jautio of
the
or tr," iotrr-I"r*ry.
particular the conceot of privileges,
is mislearring.
the basic
fact, that the status oioipto.utr
oiti",
as it confers rights.
The eight chapters of this purt
"ioi",
o"a ^*itt, ri.tr,
specitic
problems related to the imprementation
of diplomatic immunities and
exemptions
*o
-*y
r,
ri.ur*r",
s"*Jlria
151
Chapter)O/
The Interplay of Rights and Duties
once the external mission has been established in foreign territory the
question has to be asked what rules of diplomatic law guarantec that its
activities be carried out without creating tensions between the parties
concerned.
L. rnr
FouNDATroNs'oF THE DrpLoMATrc srATUs
The centuries-old practice of States to grant a special status to emissaries

of fgrgisn sovereigns has always interested jurists who tried to justify and
explain it by differentlheories.l
until the end of the L8th century international relations were under the
exclusive resort of sovereigns. Diplomatic envoys, therefore, were considered to be personal representatives of sovereigns and were granted a
corresponding treatment. According to the 18th-century French writer
Montesquieu, their representative character'does not allow that ambassadors be answerable to the sovereign to whom they are sent nor to his
tribunals. They are the words of the prince who sends them, and the words
are to be free.'2
convincing as it may have been at that time, the theory of representation
does not apply to the diplomat considered as a civil servant iepresenting
not a prince but the State (cf. above, chapter ry, 1). It can, therefore, no
longer explain and justify his status.
Earlier, the Dutch lawyer Grotius justified diplomatic privileges and

immunities by the theory of exterritoriality.3 This theory is based on a legal
fiction according to which the premises of the embassy, the residence of
the ambassador and the private residence of diplomatic agents are

Cahier(1e64),pp.184-191;Hardy(1968),p.8;pesantesGarcia(L977),pp.329_335;
__tWilson (1 967), pp.
l-25.
2 Cahier(1964),p.185.
'
Ibid.,p.l86.
153
portions of the territory of the sending state, outside the realm

of the
territorial jurisdiction of the receiving State. The diplomat, therefore, is
considered not to have left the territory of the iending state. As
a
consequence, he cannot be subject to the laws and regulatio-ns of the
state
of accreditation. The logical conclusion is that *y tfrirrg"-ent on this
exterritorial status is to be regarded as a violation of the tenltorial integrity
of the sending State.
Theexplanatory value. of this theory, as of any other legar fiction, has

never been satisfactory.4 It certainly does not he$ to
certain
specific aspects of thestatus of the diplomat, such as his dutyto
"*prui"
resp".t m"
legal order of the receiving State, thepossibility of waivinghis imnrunity
or
the duty of the receiving State to protect foreign diplomais.In spite of
ihis,
the concept of exterritoriality is still alive in ttr" puutic mind, and is often
used even in serious writings.
At present, the status of diplomats finds a cle6r justification in the
diplomatic law conventions, which in their respective preambles state
thut th" purpose of such privildges and immunities is not to benefit

individuals but to ensure the efficient performance of the functions
of
diplomatic missions as representing Stites.s
This approach is not new. As early as the lgth century, the Swiss publicist
Emmerich de vatiel wrote that specific functions requi.e a special status
h.4" receiving country to be granted to'ambassadors and bther public
ministers'. This functional theory, which is now part of diplomatic law,
provides adequate answers to fundamental quistions concerning
the
diplomatic status.
2.
rrrn scopB oF THE DTpLoMATIc srATUs
pne of the most important zlmong these questions concerns the scope of
immunities and exemptions granted to diplomatic missions. why arethey
wider than those enjoyed by the sending state itself? Does the prop"i
performance of its functions require the mission, its members and their
families to be granted total immunity from jurisdiction, as well as
exemptions from all taxes and customs duties?
In orderto answerthese questions onehas tobearinmind that,fromthe
forrral point of view, the particular status of diplomatic missions and of its
4
Whiteman,vol.7,pp.353-359; ILR, vol.55, Radwan v. Radwan, pp.57gtr;

also the
judgment of the swiss Federal rribunal of Jury 28th 1976,
ASDI, rezd, pp.1soa.
s Also CPIUN section 14, seat
agreement with Switzeriand, section
ii,.n.
1.54
staffs is based exclusively on dipromatic law. That law is

a set of norms
which constitutes a special regime u/ithin the system of general
international law. And a-speciar regime, by def,nition, estabHstes particular
:\
rights and duties

lpr.tic.abte only to specific situations. This is precisely the
case with external missions.
As to the substance, one has to look beyond the purely bilaterat
aspect
of external missions. As already pointed out, these missions are important
" components
of a global network of communication between subj-ects
of
international law. For this network to work properly it is necessarythat

its
gomponents enjoy special protection.It takes the form of privileges and
immunities'established by diplomatic law. That law also keeps a balance
and resolves conflicts betweenthepersonaljurisdiction of the sending
and
the territorial jurisdiction of the receiving siates. The wide scope
of lhese
privileges and immunities keeps open the question whether that
balance
hagno! been tipped in_favour of the jurisdichon of the sending subject.
Byvirhre of rules tobe.studied lateron, externalmissions aio ttreir
sta.ff,
including families, are shierded from the territorial jurisdiction
of the state
of residgnce, in particular from the exercise of its
luoiciary power, from
physical constraint and from its right to levy taxes. .it i, go",
beyond what
is ever authorized by general international law. Irr"fu.t, diptomatic
immunities not only apply to official acts of its members, attributable
to the
yysion as organ of the sending subject, but also to private acts accomplished by them and their families.
Even though the territorial jurisdiction of the receiving state is in
this
respect considerably limited, the overall balance betweenlhe
two subjects
concerned is not completely upset. The International court of Justice
affirmed this by saying:
Tl: 9", of diplomatic law, in short, constitute a self-contained r6gime

which, on the on9.
lrand, lays down the receiving state's obrigatlons
regarding the facilities, privileges and immuniti"J to b" accorded
to
diplomatic missions and, on the other, foresees their possible abuse
by
members of the mission and specifies the means at the disposal
of thL
receiving state to counter any such abuse. These means ui", by
th"i.
nature, entirely efficacious, for unless the sending State recalls the
member of the mission objected to forthwith, the
frospect of almost
immediate loss of his privileges and immunities (.'. tiau i" practice
)
compel that person, in his own interest, to depart ai once.u
Immunities and exemptions granted to the mission and its staff direcfly
benefit the sending subject. In return, that subject has to bear the
6 Case concerning US
diplomatic staff in Teheran ,ICJ, Reports ,19g0, p. 40.
The fact that this provision was not included in the cRSIo means that the
obligation of non-discrimination is unconditional for the host state.
Finally it is not regarded as discrimination when
by custom or agreement States extend to each other more favourable

treatment than required by the provisions of the present convention
(par.Z b/ as above).
The general balance between rights and duties of the sending and the
receiving subjects is also apparent in specific provisions.In each particular
case the rights and obligations of one party are counterbalanced by rights
andduties of the other. This is a reatity by far dffierent from the traditional
view of the diplomatic statuS as a set of privileges granted to diplomatic
representatives of foreign States without any real counterpart, except for
reciprocity.
3.
THE MIssIoN AND THE LEGAL oRDER oF THE REcETvING srATE
3.1.
The Principle
All the diplomatic law Conventions contain the following provision:

Without prejudice to their privileges and immunities, it is the duty of all
persons enjoying such privileges and immunities to respect the laws and
regulations of thereceiving State (. . ) (par. 1 of CDR41, CCR 55, CSM
47, CRSIO 77).
This is a positive way of stating the obligation to respect the sovereignty of
the receiving state. This duty was firrrly estabtished in customary law well
before the 1961 vienna conference, but doubts persisted as to its exact
meaning and practical consequences.
The question was raised, for instance, whether the diplomatic agent,
who is under the obligation to respect the laws of the receiving state, is also
subject to them? As long as the status of
mission was
explained by exterritoriality, this question made sense. According to that
theory it was not possible to subject the diplomat to the laws of the country
of residence which he supposedly had not entered. It was also argued that
because the diplomatic agent is shielded from the jurisdiction of the courts
of the State-.of accreditation by his immunity, he cannot be subject to its
laws, which'for him are at most /eges impetfectae. According to still
the
L57
aryth9r opinion, the diplomatic agent was subject to the laws of the State
of residence in so far as they were not contraryto his special status.8
The 1961 vienna convention provides clear, logical and unambiguous
answers to all these.quegtionl. Itrejects the fiction of exterritorialiti,
admits the obvious fact that the diplomatic agent performs his functions
in
a foreign state, under its territoriar jurisdiction.'ihe functional
approach
makes it thenpossible to clearly establishthemutual rights and obiigations
of the parties involved. The expression the duty to rEspect the laws and
regulations of the receiving State'means, thereiore, that the diplomatic
agent is, inprinciple, subject to them. This interpretation corresponds
to
the principle that any limitation of the territorial sovereignty have to be
ullted explicitly. The cDRand the otherdiplomaticlaiv ionventions,
linindeed, provide a limitative enumeration of immunities which exempt
the
diplomatic agent from the apprication of laws and regulations of the State
*o
ofresidence.
3,2. Measures of Enforcement

It may still be argued that the laws of the State of residence are not binding
on the diplomatic agent because of his immunity from coercion, which
ii
an essential element of the legal norm. Now this argument is also
irrelevant. The immunity of coercion enjoyed by membeis of the diplomatic mission does not prevent the state of residence of protecting iiseH
again-st violations drF tq*r by the declaration of personi non grata
(see
chapter
xrv,
2).
certainly,
this
is
a
very
different
kind
oisanction
1bove,
than those of the internal legal order. It is, in fact, the only sanction to
be
applied indiscriminately by the receiving state to any transgression of its
laws committed by the dipiomatic agentllt is also a g[obal rir"tio,
which
the person concerned inhis totarity. Finally, ilis a sanction applied
_d"gtr
by the executive branch on_a purely discretionary basis, witho"i *y
possible recourse or controf. But as pointed out by th" tcr i, trr" passage
dry?ov quoted, the total efficacity of this sanctio'is undisputed.e'
The diplomatic agent is an organ of the sending state and the latter has
to make sure that he duly respects the raws of the state of residence. The
sending state can achieve this by prosecuting him according to his penal
ta1,.by applyrng internal disciplinary measures of its civil iervice br by
yuirlg the jmmunity of the agent concerned. The latter measure, even
though of direct concern to the State of residence, is resorted to by the
r"lgirg state on a purely discretionary basis(see below, chapter xx, sy.
The situation of missions to international'organiration, is somewhat
I
I
I
I
(1g7 s),part two, pp.63-T4presents aI these opinions.
I" l:-r:"d
ICJ, Reports, 1980, p.40.
158
I
I
I
{
,{
I
1
I
J
j
-1
different. The CRSIO strengthens, as compared to the CDR, the duty of

the sending state to enforce the respect of the laws of the host State by the
members of its mission.It provides that
in case of grave and manifest violations of the criminal law of the host
State by a person enjoying
from jurisdiction, the sending
State, unless it waives the immunity of the person concerned, recalls
him, terminates his functions with the mission (...) o. secures his
departure, as appropriate (CRSIO 77 par. 2).
The sending State is, thus, under the obligation to take any one of these
measures without waiting for a request by the host State.
The instruments on the privileges and immunities of the organizations
of the UN system now in force, go even further. lVithout expressly
referring to the duty of respecting the laws of the host State, they impose
upon the sending State the obligation
to waive the immunity of its representative whenever, in its opinion, the
immunity would prevent justice to be done (. . .) (CPItiN, sect. L4).
The uN secretary-General is under the same obligation as to officials of
the Secretariat enjoying immunity from jurisdiction.
3.3. The Violations

Even though the duty of external missions and of their staff to respect the
legal order of the State of residence is clearly established by international
law, its violations are very common. They are perpetrated mostly by
individual diplomatic agents. It also happens, however, that they are
committed on behaH of the sending State.
The most frequent are offences against road traffic regulations. It has
been calculated, for instance, that the 120 embassies accredited in
Washington nL972 would have to pay about USS100.000 a year in fines
if theywere not enjoying diplomatic imrpunity.It was also reported on that
occasion that the wife of an ambassador had been fined 74 times in one
single year.1o In London, from the period L974-1984 there was an
average of 7L,000 parking-tickets cancelled annually because of diplomatic immunity.ll Finally, in 1985 in the Canton of Geneva the average
number of traffic-tickets per vehicle was 6.3 for members of diplomatic
ro Chronique, RGDIP,l973,p. 1177.
tt
Cf. Higgins (1985), note no 4; see also Whiteman, vol. 7,pp. L61-172.
159
missions, L for international officials and r..g for the remaining popula-
tion.l2 This shows that the behaviour of diplomats in this resplci is not
what it should be.
example concerning violations of civil law is the case of unpaid

- .-Another
bills by permanent missions and their staffs in New york. This problem
became so acute that at some point L9 cases worth USS3g3,0b0 were
brought before the IIN committee on Relations with the Host state. The
action by the committee resulted in a substantial reduction of the number
of such cases in subsequent years.r3
. It also happens that diplomats are involved in illegal dealings. For
instance, it was discovered n L976 that staff members of North Korean
embassies in Denmark, Finland and Norway were illegally selling dutyfree imported alcohol, cigarettes and also drugs. Large qrantiti"s of ttreie
goods (175 kg of hashish in Kopenhagen, 4p00 uotues of alcohol and
packets of cigareffes n Oslo, etc.) worth more than
_14_0-?000
uss1,000,000 were seized. The diplornats involved were immediately
declared personae non gratae by the governments concerned. similar
dealings by North Korean embassies were later discovered in anumber of
other capitals, namely Kuala-Lumpur, cairo, New Delhi, Buenos Aires,
vienna, etc. Because
9f the importance of this traffic the press came up
with a plausible hypothesis that it was carried out on behalf of the Korean
government in order to finance expenses of its embassies and other foreign
operations.la
Espionage for the benefit of the sending state is another common
violation of
49 duty to respect the legal ordei of the country of residence.
A number of the more important cases may be quoted.
rn L97l the British government requested the recall of 105 soviet
gfficials posted in London, out of a total of 550 of whom 2g0 (excluding
families) gnjoyed the diplomatic status. The communiqu6 published on
this occasion stated that the measure was based on information regarding
the soviet espionage activities provided by a former KGB agent. rhI
Sovietgovernment reacted with anote of protest and the expulsion of four
British diplomats.l5 A similar case occurred in paris in igss when 47
diplomats accused of espionage were expened by the French government.
Finally, according to an official Swiss communiqu6 the Swisi authorities
registered L78 cases of espionagebetween L94g and lg7g,involving 303
persons of which 97 were diplomats and international civil servants.r6
12 Unpublished
data of the Justice and police Department of the
13 UN
General Assembly 30th session, A,/tOOZO, ennex f.
1a Chronique,
RGDIP, 1977,p. 507.

t5 lbid., 1972, pp. LL7 4-lL7
B.
t6 [bid.,I979,p.557.
160
canton of Geneva.
Sometimes, especially in countries under authoritarian regimes, it may

be difEcult to make a clear-cut distinction between what is permitted and
what is forbidden to a diplomat. On this subject the ICJ had the following
to say in its judgment in the case of American diplomats in Teheran:
Paragraph L of Article 9 of the l.96L Convention, and paragraph 4 of

Article 23 of.the 1963 Convention, take account of the diffrculty that
may be experienced in practice of proving such abuses in every case or,
indeed, of determining exacfly when exercise of diplomatic functions,
expressly recognized in Article 3(1) d/ of the 1961 Convention, of
'ascertaining by all lawful means, conditions and developments in the
receiving State' may be considered as involving'espionage' or'interference in internal affairs'.l7
Another type of illegal activity was the cause of an incident between

Canada and Cuba. After the expulsion by Canad a n 197 8 of two consular
officers and of one diplomat, the government of Cuba published a
statement sayrng that it 'cannot be considered as espionage when its
otrigial representatives established contacts with third persons concerning
activities which are not directed against the country of residence or athird
country, but aim at preventing a group of bandits belonging to the National
Front of Liberation of Angola to take action against the State of Angola'.
The Canadian government replied by saying:'We understand that Cuban
authorities admit having carried out in Canada activities which Canada
considers as incompatible with their status'.l8
Mention can finally be made of cases of expulsion of members of Libyan
diplomatic missions in several countries, who were actively involved in
activities against political refugees to whom Colonel Gadaffi offered the
alternative of either returning to their country or'to be physically eliminated'.1e
17
lCJ, Reports, 1981, p. 39.
18 Chronique,
1e
RGDIP, 1977, p. 796.

Ibid., 1977,pp.1118 and 1137.
L6L
Chapter)ilru
Protection of the Mission and of its Personnel
Sancti habentur legati - emissaries are sacred is the oldest expression of

the principle of inviolability of the diplomatic mission. This fundamental
principle of diplomatic law has two different but complementary aspects.
One is the duty of the receiving State to protect the mission. The other is
the immunity of the mission from coercion. This chapter only deals with
the first one, the second being treated along with diplomatic immunities in
chapterXX.
L. oslrclrroNs
oF THE REcEIVING srATE
The distinction between the two aspects of the principle of inviolability of
the mission is both logical and evident. The immunity from coercion
requires organs of the receiving State to abstain from any act of authority
implyrng the use of physical constraint towards the mission and its
members. This is undoubtedly a serious restriction onthe normal.exercise
of the territorial sovereignty of the receiving State. On the other hand, the
duty of that State to grant special protection to the mission requires it to
reinforce the exercise of its authority for the benefit of the mission.It is an
important distinction, especially since States have to face the global
problem of terrorism.l
On the question of protection, the CDRprovides that
the receiving State is under a special duty to take all appropriate steps to
protect the premises of the mission against any intrusion or damage and
to prevent any disturbance of the peace of the mission or impairment of
its dignity (CDR 22par.Z).
The same obligation concerns special missions (CSM 25 pat 2) and

consular posts headed by both career and honorary consuls (CCR 31
Cf. on this question Baumann (Lgl3),in particular chapters tr and Itr. On questions
involving international terrorism, see Julliard (197 t), p. 207.
L63
paragraphs 3 and 40). The duty to protect the premises

of the mission
persists even after diplomatic and coniular relations

have been broken
as-well as during armed conflict (CDR 45, CCR 27,CSM 42\.2
off
No less explicit is the duty of the receiving Stateto proteJt the

staffof
external missions, eveq though its distinction from i--""ity from
coercion is less evident.3 The corresponding cDR provision reads
as
follows;
The person of the diplomatic agent shall be inviolable. He
shall not be
any form of arrest or dltention. The receiving state shall
li-aute !9
treat
him withdue respect and shall take all the appropriutJrt"p, prevent
to
any attack on his person, freedom and dignity (CbR 29). '
The.-same duty concerns the administrative and technical
staff as well as
families of all missions'members (cDR 37 paragrapt,

ccR 40).
In addition, according to the CDR,
i *o
z,
csM 29,
the private residence of the diplomatic agent shall enjoy the

same
invio_l{ility and protection as the premisei of the misrion (cDR
30
par. 1).
The same applies to residences of members of special missions

(csM 30
par. 1), but not to those of consular officers.
In the case of American diplomats in Teheran the ICJ clearly stated
what the duties are of the receiving State concerning th" pr"6ti;;;;
foreign missions:
The-co19!u$on just reached by the court, that the initiation
of the attack
on the uS Embassy on November 4th' lgTg,and of the attack
on the
consulates at Tabriz and Shiraz the folowing day, cannot

be constate;d il". ,ot *.an that
Iran is, qr consequence, fre of any responsibility in relard
to those
attacks; for its own conduct was in cbnflict *itr, itr"i"ternational
!!!cations. By a number of provisions of the vienna conventions of
1 961 and 1963, Iran was placed under
the most categorical obligations,
a_T1eiving state, toJake appropriate steps to ensure the protection
1s
of
the US Embassy and consurites, their stafts, theirarchive.itt
sidered as in itself imputable to the Iranian
"ir-ean
2 Whiteman,
u.d.7, pp.379-3gg; Salmon (1976), pp.97_l,3 points
out that for the
receivitrg State it is an obligtion of means and not
of result.
3 Wilson (1967), pp.

47 -52.
164
of communication and tlie freedom of movement of the members of

their staffs.a
And the Court had this to add on the attitude of the Iranian Government
after the attack:
Its plain duty was at once to make every effort, and to take every
appropriate step, to bring these flagrant infringements of the inviolability of the premises, archives and diplomatic and consular staffof the
US Embassy to a speedy end, and to restore the Consulates at Tabriz
and Shiraz to United States control, and in general to re-establish the
status quo and offer reparation for the damage.s
Similar provisions to those of the CDR were included in the 1975 Vienna
Convention in view of ensuring adequate protection to premises of

missions and delegations to international organizations (CRSIO 23
paragraphs 2, 28, 29, 41,, 7 0). But since this instrument is not yet in force,
the status of missions and delegations comes under the provisions of the
CPIUN. This Convention grants only limited immunities to representatives of States (CPIUN fV, CPISA 9, ard does not impose on the host
State any particular duty of protecting premises and staffs of member
States'missions. In most cases, however, this is supplemented by provisions of headquarters agreements of many internationat organizations. By
granting to representatives of member States equal status with diplomatic
missions, host States by these agreements take implicifly upon themselves
the obligation to provide them also with identical protection.6
The protection of missions to the UN in New York created some
practical problems which were discussed in the Committee on Relations
with the Host State. In cases of infringements on the peace and dignity of a
mission it belongs to the US federal authorities, and in particular to the
FBI to investigate the case, arrest the suspects and eventually bring the
case to the District Court of New York. But the New York State law
requires the case to be brought to court by the victim himself who has to
give evidence.In cases involving diplomatic missions this requirement is
contrary to the immunity from jurisdiction whereby a diplomat does not
a ICJ, Judgment, Reports, 1980, p. 30, par. 61.
5 lbid.,p.33, par.69.
0 Qf.qathisquestionarticleVoftheUNseatagreementwithtleUSAofJune26thlg4T
and the International Organization Immunity Act (d. above, chapter XlV, note 9.); also the
1946 UN seat agreementwith Switzerland complementedby the decreeof the Swiss Federal
Govemment of March 31st 1948 which puts permanent missions to international organizations in the samd category as diplomatic missions accredited in Berne; similarly, article 18 of
the UNESCO seat agreement of July 2nd 1952.
L65
Effi Fl!-]FtrF-
iiteEqfn/iffiffiHtf
:*+ *FrrrrErEij6c.n{:E,,
have to give evidence in court. Members

of the committee righfly pointed
out that, thereforg the protection offered
;;il;
consioereo as
that the united stateJ hld
tat" appropriate ;ffi;;o
discharge
its international lg.
efficacious. After
3lengthy debate the
committee."*il ire conclusion
i;;;;rsions.
obligation of prot".ii"g
ltrecfivelv
The
committee arso stated that.a$rgucn qr"rtioo"
p-...edures were
unger its iurisdiction, it had the duty to
see to it that international
1o1.
obligations were fully respected by the host
State.z
According to the cpruN arrd th" cpISA,
officiars of internationar
organizations when performing their functio*,
gr*,"0 certain
immunities, brrt onry the LrN Secretary-Generar,
Directors and their
assistants enjoyarfldiplomatic status. sorir"
of the slat ugi"L-"ot, extend
this status to other high-ranking officiars.E
In spite of the silence of these
instruments on that 1ssue, thE host stut"
under the
obligation to provide missions of internatiorra
ort*irltiJns
with ad_
"aovisory
equate protection. A9 earry as L949 th9 ICJ
in its
opinion on
""
Reparations for Injuries suifered in the service
of the uN ,d.#rh";'
"ri"J
,*
,riiJl"u[d;
to ensure the independence of the

3gent, and consequenfly of the
organization itserf, it is essential that in
perrorminjr,i;;;", he need
Td huu-" to rely on any other protection-than trrut ir trr" ci rganization
(save of course for the more diiect and

immedi"t"t;;ti."
-- r----Ye-! due from
the State in the territory of whichhe may
be).e
This implies that although members of external

missions of inter:
national organizatiorio not enjoy the same protection
as dipromatic
agents, the territorial state concerned, nevertlieless,
bears-the respon_
sibility for their security.
2'
pnnv,NuoN oF cRrMEs AGArNsr

MEMBER' oF EXTERNAL MrssroNs
until recenfly diplomatic missions weregenerany respected

and therefore
easy to protect. only occasional demonstrations,
mosfly p"a"rtrt,
-uy
have required some action by police forces.
In fact, instances where local
authorities were unable to-provide foreign

oipiomats
*iur
adequate
7 Report of
the committee on Rerations with the Host
State, r.IN Gen. Ass., 27th session,
A/8726 and 28th
doc.
session,doc. A/9026.
8 seat agreements
UN-Switzerland section 16 and UNESCO-France,
r rarle, d'
art. r)
19.
e lcJ, Reports,L949,p.!g3.
166
protection, were quite exceptional, so that, as lateasLg64,anauthor could

state that ln normal times diplomatic missions have nothing to fear'.lo
Since then the security of diplomatic missions has become a serious
problem. The following figures illustrate this new situation well.ll
In the thirty-five years beteen 1946 allid 1980, 186 violent acts directed
at missions or persons entitled to special protection were committed with
the loss of 44 lives. Three of them were carried out during the first fifteen
years: a murder of an official in the service of the United Nations, an armed
attack on an embassy and mob violence against a consulate. During the
ne)ft five years (1 96 L -1 96 5) eight cases of mob violence were committed
against American diplomatic and consular missions. Then international
terrorism enters the stage. In the five years betwe en 1,966 and L 970, it is
responsible for the murder of three diplomats, for 14 kidnappings in
which two persons are killed, and for two attacks on embassies with the
loss of one life.
During the decade L97 L-1980 the number of acts of terrorism against
foreign missions increases sharply. The approximately 158 cases of
violence directed at external missions and their staffs can be roughly
classified as follows: L6 cases of murder of diplomats and 9 attempted
murders; Ll. cases of kidnapping with three persons killed; 22 armed
attacks on embassies with 10 diplomats killed; in 59 instances attacks were
carried out with bombs, Molotov cocktails and other devices leaving 8
persons dead and many more wounded; finally, there were 4L cases of
mob attacks against embassies and consulates, often with invasion and
ransacking of premises.l2 It seems that by the mid 1980s the wave of
terrorism directed at diplomatic missions has somewhat subsided, except
in certain specific regions like the Mddle East, and particularly the
Lebanon.
Impressed by the spread of international terrorism, in 1973 the UN
General Assembly, by resolution3L66 (XXVQ adopted the Convention
on the Prevention dnd Funishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents (referred later to as the
NewYork Convention - NYC), mentioned earlierinthis book (chapterl,
3.3)."
The three main objectives of the Convention are: a) to make sure that
to Cahier (196 4),p. 2L7.
I
The following data are based on Chronique, RGDIP, vols. 69 to 85 (1 965-1 93 1).
Not included are acts attributable to State authorities and concerning the inviolability,
which are dealt with in chapter XD( below.
13 For a presentation ofthe travaux prdparatoires and general problems concerning
the
1.973 New York Convention, see Bloomfield and Fitzgerald (197 5);Przetacnrk(1973) and
especially (1983).
12
L67
--''dFEt'n^'*+dtlqFEBfiEEEf[E
Jf.+]''
i,rtr!I@],,
every person *,,,*ijqg or participating in a crime

covered by the
convention will be tried or extiadited and will not remain
unpunished: b)
to dissuade in this way possible offenders t o*
tilol;;;
and finally,-c) to secure a minimum of internatiorra
"o*itti"g
.8-Lperation in
preventing them.
Ratione personae comeunder the convention acts
committed against
any head of state or of gove-rnment, ministers o,
ott e. ffi official and
their families, wherr travelling abroad on official outy. -rn
this broad
gategory diplomatic agents and internaticnal civit servants and
their
families are included
G\rvC 1).
Ratione materiae come unoer the provisions of the
convention murders, kidnappings and other viorent atiagkg ,po' p"rro*
li riu.rty of the
persons mentioned above, as well as violent
attacks upon their official
premises, private accommodation or means
of transport. In the same
categoryof acts are expresslyincluded threats ano
attempts to commit and
actual p_articipation in such crimes (t{yc 2).
state parties to the convention engage to make
.The
these acts and
grimes punishable by up. propriatepenalties under theirnationailaw.
Each
State pqty is also under the obrigation to take
,"""rrury--easures to
establish its jurisdiction over these crimes when
trr"y -".oi*itt"o,
i1.
territory
and on board ships or aircraft when registered
3. p
there;
b. by its nationals;
c. yhen they are directed against persons it has the duty to protect
under
international law and, fin-ally,
d. when-1he-alleged offender is in its territory and it does not
intend to
extradite him (art. 3).
The convention also carries a number of provisions
aimed at establishing
international co-operation in the repression of
these crimes. The state
parties are under the obligation to
information on circumstances
"*"h*g"
of the crimes committed, on
identityirtn"
victims *o oitrr" aneged
ofen{ers (articles 6 to 8), and$e
to afford one another tt e gr"aie.t measure
of assistance in connection with criminal proceedings (art.
10).
The only article of the convention devoi"o to trr" p:i")""tio.1ot
crimes in
question imposes on the parties the obligation
to take in their respective
territories all necessary measures to prevint such
acts and to exchange all
relevant information on these issues (*. +).
Duringdiscussions onthe draft of tieNyc doubts
werevoiced as to the
of adding new legal text when existing
were
""-.-:r:rtys,ffigisntl, clear and-aexplicit on all questions Jr:tirrs
"orru"rtiorrs
i,
ttie
outy
ot
protecting diplomatic agents and missions. These
,o,;11y i"*, *"."
unwarranted because the Nyc was to fiIr an.rmportarfi
gap,by expricifly
defining both categories of persons enjoying int;nation;;i#ction
and
168
acts against which they are to be protected.In addition, the NYC imposes
on the parties the obligation to co-operate in the repression of these crimes
by establishing a quasi-universal jurisdiction in these matters.la
Mention must also be made here of a similar instrument of a regional

It is the Convention on the prevention and repression of acts of
terrorism taking the form of crimes against persons and of extortions of
international importance, which was adopted by the Organization of
American States on February Znd L97l.1s
The crimes of internationalimportance aimed atbythis Convention are
kidnappings, murder and other attacks upon the lives and personal
integrity of persons particularly protected by international law and all acts
of extortion related thereto (at.z).The parties to that Convention engage
to consider these acts as criminal offences and either to extradite the
offenders or to try them as if the given offences were committed in their
own territory. The parties also agree to co-operate in the prevention of
scope.
these acts.
The instruments discussed above have to be linked to other Conventions aiming at combatinginternational terrorism, especially in the field of
civil aviation.r6 All of them taken together have had. some positive
influence on restoring a minimum of security to diplomatic missions. It
cannot be expected, however, that they will totally succeed in preventing
politically motivated crimes to be committed against diplomatic agents.
3. purtrs
oF THB sENDING srATE
Although neither positive law nor publicists'writings make reference to it,

the sending State has not only the right but is under the obligtion to spare
no effort to protect and ensure the security of its missions abroad. It is an
a As an example of nationat legislation enacted in the implementation of this Convention
by the Act for the Prevention and Punishnent of Crimes against Internationally Protected
Persons, adopted by the US Congress on October 8th 1976, Legishtian on Foreign
Relatiarc,1978, US Senate, vol. II, p. 401.
The growing concern of the international community with the increasing number of
attacks on diplomatic missions and their staffs is reflectedby the agenda item of dl UN GA
sessions since 1980 entitled: 'consideration of effective measures to enhance the protection,
security and safety of diplomatic and consular missions and representatives'. General
Assembly resolutions 35/168,36/33,37/LQ8, etc., invite States to co-operate closely to
enhance the protection and security of the mission and to become parties to the instruments
relevant to that protection.
ls Cf. Julliard (L97 l), pp. 223-23L.
t6 L970 Hague Convention for the Suppression of the Unlawful Seizure of Aircraft,
UNTS vol.860, p. 105, and the 1963 Tokyo Convention on Offences and Certain other
Acts Committed on Board of Aircraft, UNTS, vol. 704, p. 219.
1
169
obligation because the receiving state, which

is responsible for the
protection of a foreign mission, can expect,
and even require that the
rynding state takes reasonabre security measures to prevent the mission
being ar] open target for attacks ano inntratio*
t o,o outside.It is
{om
also a right because th9 gending State is the
first to u" irt"."sted in
protecting its missions, their staffJand archives.
Basic security requiremen!1
comprise a fence surrounding the
grounds of the mission, a soridlormany
gate, pioperiockg *0,
n.rriuty, secirity
personnel on the premises. These mea.rr.es
shal iake into account
particular conditions, such as the rever o{.g"".rul
,"*rit; th" giu"rr.ity,
good or bad relatiorls between the sendiirg
and the;"r;;* states, the
internal situation
g: sending State, etc. After invasion of the
fu*T^"Tlassy Tin Teheran, foi irrrt*"e, the Uniteothe
st*L, gou"rnment
spent in 1980 and 1981 respectivery uss3.s
*o
protection of its missions inparticularly
oargero,rs;A;;; such as the
Mddle East and central America. The measures taken
comprised the
reinforcement of csntrors of pubric access
to the mirrioor,tt retting_up of
sgcurity zones and of eyapl systems inside
"
of
-irrio"r,-tir" irstalation
devices for the destruction bf aocuments,
etc.r7
Each sending State organizes the security personnel
of its external
missions differenfly. unirJ.o states dipromatic
ririrrio", -e protecteo uy
Marines on permanent duty on thfir premises.
In Fren'ch missions
uniformed poricemen are o1 duty. rn missions
.t
.;;;". security
pelsonne-l is oftenplaincrothes and
",rr", r"",r.ity services.
belongs to different
From the point of view o{dipromatic raw, security
p"r.o*"t berongs to
the administrative and technicar categories.
rrr" mliu".slitr,i, service
can be armed when on premises of tie mission.
As to trr" ,ro." generar
question of thepossession of arms by
dipromats, inmost cases theyhaveto
obtain a permit according to taws ano reguiatior.-oi
trr""country of
residence which is normally used without
didcufty.
- rt happens, however, that security measures tafen by certain missions
lead to abuse. A case in point trreiragic incident
which occurred at the
is
Iraqi embassyinparis onfury 31st
197I.
That morning two armed individuars entered
the Iraqi embassy. After
exchanging shots withthe
on duty one of ttre assaitants escaped,
while nine members of theryqg
staff *"r" tul", hostage ;y ,f;trr"r. After
protracted negotiatiols wi-th a French porice
officel, ,rr" i"."rirt agreed
late in the afternoon to rerease th9
and
surrender to the porice.
fos:tages
when he was led handcuffed out of ttre
bufidi,g *d;; uu-"ri,o g", into a
police car, several m1m!9rs o.f trg haqi
statr"got out ot-trr"-uoitoirrg *o
opened fire on him. In the shooting u rr"""i
p;ril;-r"d ;i;q;
iiisJi-ild;;;
r? Cluonique,
RGDI\,I9g1,p. 1104.
170
official were killed and three persons, two policemen and the terrorist,
wereseriously wounded. Three employees of the Iraqi embassy who took
part in the incident were immediately detained. As they could not be
prosecuted because of their diplomatic status they were expelled from
France two days later. Following this incident the French Minister of
Foreign Affairs announced his decision to proceed with a review of the
entire diplomatic Iist as well as of regulations concerning the granting of
arms permits to diplomats.l8
An even more serious incident occurred in London onApril 17th Lgg4.
During an orderly demonstration led by Libyan opponents to colonel
Gadaffi, shots were fired from the window of the Libyan people's Bureau,
killing a woman police constable. As members of the peopre's Bureau
refused to leave the country as requested, the British government severed
diplomatic relations with Libya on April 22nd, andasked the entire staff to
leave the UK by midnight April 29th-3 0th. The Bureau was evacuated by
the Libyans on April 2Tthandthree days later it was entered and searched
by the British authorities.le
li1e Cf
1b4., 1979, p.5 I 8; on the practice of States cf. Whiteman, vol. 7, pp. t7 2ff
Higgins
.
(1985), p.643.
ChapterXWI
TheFreedom
communication of
the Mission
o1
L. crxBnar,
pRINcrpLEs
The possibility of transmitting messages is absolutely

essential for external
missions which first and foremost
org*, of communi"utio, between
subjects of international law. The freedom of
communication of external
missions recognized and protected by conventional
law, therefore, should
*i
ry1 be regarded as a priwilege granted to states'
a sign of
deference. In its functionat perspective the freedom ""noy,

of communication is a
right essential for the perforrrance of the mission,s
basic
functions.
The relevant rure, identical in the four major diplomatic
iu* corrr"otions, reads as follows:
1. The receiving state shall permit and protect free communication

on
the part of the mission for a]r otrigial purposes. In
communicating with
the Government and the other missions and consurates
of the sending
State, whereversituated, the missionmay emproy
an appropriatemeans
including diplomatic couriers and meisages in code
or^cipher (..
(cDR z7,ccR35, csM 28, cRSIo zt
n1.
ia
It^rj q"-rr""uy norrral that the freedom extends

only to communications for
official purposes. The practicar meaning of this r;trictio&;;;ver,
is not
very clear. According to the next paragraph of the
ru-"
urti.t""
Official (. . ) means (. . relating to the mission and its

functions.
)
Even this clarificatiorr does not solve all the problems.
some states, for
instance, consider that everything concerning the
mission,s members
relates to the mission and itifunctions and this
allows them to use the
pouch for personal letters, and even parcels. other
$plomatic
states, like
switzerland, alopt a qtrigt interpretation of that clause
and deny this
facility even to heads of missions.The freedom of communication of the mission extends
onry to contacts
,17 3
with specific addressees, yme$thegovernment

and othermissions of the
sending State, bherever situated'. Aiy
message, lett", o. p*.t addressed
to or by one of these organs, therefore, i, pi"r"*"a
io'"*" under the
provisions on the freedom of communi"uiiorr.
rt
ir
presumption could be questioned in practice.
"oi"i;; ilrh;
In order to rimit the inconvenience which the freedom
of communica_
tion creates for the receiving state, the special
missions and deregations
are invited to use these facilities with restraint:
3' where practicabre,.the_special mission shall use

the means of
communication, including tr.9 Uug and_lre
tt"
-' "* aipn_uti"
mission of the sending state
"ouri"r,-oi
ii;.-'
1Csni2g, CRSIO
The question has now to be asked what
is the
significance of the duty
ryar
State to 'permit and protect free
communication, of the
mission. According to the normat ,n"*irrg
d.ft: receiving
,J th;
;;;d.lt
,"."iuirrg
state is under the obligation not to hinder
the communications of the
mission, to protect.theln trom any interrer"*"
;y;hdllrrorrr, urra
eliminate any such hindrances ,hd *"y occur.
This duty extends to a[
m*u* of communicgtion, such as mail, teleco.-;.;H;freight
and
all possible means of transport of a dipromatic
courier. The same article
also altows the mission
,coo"-Li
which is
ld.:"19 ."rrug", i,
expressly prohibited, to individuars
byiational and inieilationa ter"_
communication regulations. I
The duty to secure the freedom of communication
of the mission also
means that the receiving state is forbidden
to interfere o, tu.p". in any
yay with messages tr.ansnltteo by the mission in order to distort
or
31"t::p1 them by tapping telephone corr"r.utioo., op"oiog oi,it, etc. This
interdiction is absoluie ano its uiotation
can never be justified.
Th9 saSe pringiples also appry to externar
missions of international
organizations. AII instrumentJ concerning
trreir status-"*r] prouirio^
which guarantee their freedom of commuiication
by arl ;;iabre means,
including the dipromatic pouch ano courier,
ana gant mem expressry in
this respect equal treatment with the
externar missions of states.2
&},
1 It may happen
that for reasons of national security a
state imposes restrictions on the
freedom of communication of dipromatic
misJonsl This was the case in Great
Britain in the
days preceding the Aried randini in
No.-*Jy i" i sa4 whireman, vor. 7 pp. 202-2L2.
2 cP,.'N, section
,
9; cplSA,stti.r. r
"f.
ii, ilrop s*dard Agreement, arricle D(;
Lom6 convention III, protocol3, chapter
s;
i##'i.oui.ioo, ar"
included in the seat agreements ot,noJ
il;
cploau,;;" *.
*gl_tiot.
174
2. connBspoNDENcE
The diplomatic law conventions carry
the folowing common provision
on correspondence:
2' The official
correspondence
mission and its functions

(?\
57).
of the mission shall be inviolable.
(cDR 27,ccR 35,csM
2-g,6ifi3;;#;
As already mentioned, the exact meaning

of tlis plsvision is unclear. First,
the official character of the correspondEnce
is defined by its content; but
its official character cannot be ascertained withoui;p"rt"u
it, which
amounts to its vioration. It wourd therefore
have been pr!i"*8r" to insist
rather on the external marks indicating
its ofEcial nature.
secondly, the term'correspondenci designates
usualy both incoming
aniJ outgoing mail. In fact, both deserve
the same protection as both may
carry important and co$$ntia-messages.
rne iovoi
fiparatorres ot
the convention seem to indi91te,
thaj this provision applies only
1r"**Ei
to outgoing mail, whichconsiderably
reduces its pricticari-po?*.".,
o{ the protection of the correspondence is
of minor
'*dequacy
rmportance,
because
actuar practice most of the officiar mail
between
T
the sending state and its external;r;i;i,
forwarded by the dipromatic
or courier. The use of the officiar postal servicesis
,utt excep-
,-Tj
ffif
".
3.
TELECoMMuNICATIoN
the external missions can either use the regutar

:.jrr:r^:"r-"j:fly::,r""s
h
trg
receiving
country or install its own .#;;i;;_
:,Ti": TrPg
f**p:^TTi::9"#T,i.i1,11.,,"t1""6h";;fu
rates. The possibitiry or s"roiij*;;so;
",;ffi;;;
ffi#I;
i:*at
a cerrain guarantee
tt"i,
::T::r^X,
:l^T:_"T:f d*uy..r.jepend
Tj:y yf
irl"r""uinrlv.
"r
on the
ffi ;#;#r:
uo";o"J*ii^tTrffi;
"mri"orv
o*--tr*r"iitt"r-ir"il;;;
il;;
":" gs it offers u air".t rirl#tr,
tr,;r;,fir;
ll"y::g:::3"^:i:trmission,
State, pd.pendent and perrnanently operational.
liTl."l^3".1,1:1b,t
ry,
In the last sentence

Conventions provide:
t".
it.
of the first paragraph of the quoted article the
3 Denza (1 97
5),p. L 2t;Whrteman, vol. 7 ,
pp.
1,7
4_1.g7
175
However, the mission may install and use a wireless transmitter only
with the consent of the receiving state (cDR 27, ccF. 35, csM 2{i
cRslo 27,57).
Because of the limitation it imposes on the freedom of the sending
Statg
whichis recognized by customarylaw, this provisionhas beendiscussed
at
length both in the ILC and at ttre 1901 vienna conference.a one
argudrent infavourof thatlimitationwas the duty of the,"."irl"g
state to
control the distribution of frequencies. But the-decisive reason was the
fear, mainly of developing countries, that such transmitters might
be used
by missions to broadcast political propaganda or to commuiicate with
lpplgition and guerrilla groups.It was also stressed that the freedom of
inslalling transmitters would fivour rich states who can afford them.
-It
seems, however, that q, later practice the requirement of the

consent
receiving state has not
the use of transmitters by states

"{-F" to install them. one of thelimited
willing
reasons is that the consentdoes not have
to be explicit. The second is that, as stated in the ILC,s commentary,
because of the general obligation of granting freedom of communication

to foreign missions, the receiving state would have to give very serious
reasons to justifyits refusal.
4. tnn DIpLoMATTc
BAG AND couRIER
It is an ancient custom to use_the diplomatic courier to carry messages,

documents and objects in what is iatted a diplomatic bai or pouch
between themission and its government. The cDitand the otlier
conven_
tions devote to this important institution five of the seven paragraphs
of
the article on the freedom of communication. But these provisions
did not
prove to be sufEciently precise to prevent both.abuse and hinderance
in
$ey9e o_f diplomatic bags and couriers.In order to remedy that situation
the IJN General Assembly by resolutio n 3l /7 6 of L97 6reqlested
the ILC
to prepare a draft of a protocol concerning 'the status of the diplomatic
courierand of the diplomatic bagnot accompanied bya courier,.Afterten
years of work, at its L986 session the ILC adopted in ttre first
reading the
whole set of 33 draft articles, which are now to be sent to StateJ for
comment.s In the developments that follow due account is taken
of the
work of the ILC up to that session.
4 Denza (197 5),p.
176
199; Whiteman, loc. cit.

Cf. Report of the ILC on the Work of its 38th Session, tIN doc. A/41/1,0,pp.
56-g5.
4.1. Tlu Diplomatic Bag

Draft articles on the
the diplomatic courier and the dipromatic
bagnot accompanied :t"tu:..f
by a diplomatic .oo.i"r, uoopi;;y th"ilc
in I 9g6
provide the following definition:
'diplomatic bag' means the packages containing
ofEcial correspon-
dence, and documents or articfes iritended

excfus"ivefiior omcial use
yhetl-5:r.agcompanied by a diplomatic courier or rot, *trictr are used
for
the ofificial communication referred to in article
L and which bear visible
external marks of their character (. . .).6
dgvelgns what is arready said in the conventions

now in force
Jhjsyext
an$ define9 the diplo-matic bag by bothits
external aspect and its content.
In actual practice the
often consistsôf parcels or even of
{iptgmltic bag
crates of considerabre size.
In-{act .o6jects for official or",-*t
contain can be documents,
suppries, furniture for the residence,
-ory.g
spare parts for official cars, alcohol
foiriceptions, etc. The externar aspect
i.t i ;t
and the size of the diplomatic bag ca"'ato

The
diplomatic bag is oftenabused.for various pu{poses,
"ril-i'J"r"ury.
such
as inegal imports
of drugs, arms and other military equipment,
o. io, e4ports'out of the
legeivins country of technicalry'advanceo
T* f.r.por". or
industrial egpionage,- etc. To
"q"ip."rt
themserves
irotect
against ,'*h ubrr",
Chinese authorities, for inslmse, limit the use
of the diplomatic bag by
for"rg, missions_only to official documents contained
in a briefcase.T
The status of the dip-lomatic bag consistri"trrutitl.rruriioii-"
op"rr"o o,
detained'(pgagraph 3 of: CDR-27, CSM 28,
CRSIO Zi ii57). Here
asaip the di$culty consists in how tostrike
a balance between the interests
on the one hand of the mission and of the receiving
State on the Ltrrer. rhe
prohibition of opening the diplomatic bag, e4presied
in absorute terms, is
certainly to the udu*t3g: of the senoin['staie,
and r"u-rl, trr"- receiving
st* with limited possibilities to protect ltsen against u"-*". The status of the consurar bag also prohibits iito
u".p*"i detained,
but
"r
ffi
. . . if the competent authorities of the receiving

state have serious reason
to beteve that the bag contains something ofier
than .oir"rporro"rr.",
documents, or articles
officiaruseJ
thgv
may
request
fior
that the bag be
gnene{g theirpresence by an authoriz"diepr"r"rrLtiu" oith" sending
fore: {P" request is refus-eo by the authorities or the s"rJirrg
--''stut", th"
bag shall be returned to its place of origin (CCR
SS p*. i).
6 ILC, Report
on the 4lstsession_(l9g6),
7 Chronique,
RGDIP, 19g2,p.55g.
A,z4
t/LL,artcle3, paragraph
1,
point (2).
177
This provision certainly protects the receiving State against any abuse
of
the consular bag. on the otlel hand it grants the sendiig state tle right
to
refuse the bag to be controlled, which then will be sent b'ack.
The fact that this procedure is permitted only by the ccR indicates
that
bags of other types of missions under no circumsiances can be
opened or
their content controlled by authorities of the receiving State. As it is also

strictly forbidden to detain the bag, it seems that the rJceiving State is not
even allowed to refuse to admit it into its territory. Neverthellss the
latter
State canalways express to the mission its misgivings about the
content of
the bag. The mission will then have to prove that these misgivings
are
unfounded, by having it opened in the prisence of representatives
of the
receiving state. In cases of serious abuse of the diplomatic bag, as i,
aoy
other similar situations, the receiving state can take a series of
-"uro."*
against the mission which are permitted by diplomatic law.8
Even though the provisions on trre stitus of the diplomatic bag are
unequivocal, ffiffiy cases of their violation, by both the ieceiving *i
tt
sgnding States could be quoted. one of the beit known was the dJcision "
of
the British government a few days before the Allied landing in France
in
June L944, to prevent any diplomatic bags leaving the co"untry.
It also
happened that several governmentr p.o""Jdirg witf, far-reaching
monetary or currency reforms announced that diplomatic bags willbe
of,ened to
avoid illegal transfers of capital.e
Atleast two morerecentinstances of abuse of the diplomaticbagshould
be mentioned. one o_ccurred in Juty Lggfi,when officials of the
Nigerian
High Commission in T ondon attempted to smuggle out of the country
Mr.
an opponent
9ko
9f the regime or nis couniry, who was drugged ad
placed in a crate bearing the marks of the diplomatic bug.ro
The otheroneis theunusual case which thi Swiss auth-orities had
toface
whiteman, u9l-7, pp. 2r6-222.onthe other hand it is important to note
that a number
of-9^
States, namely Liby4 Kuwait, Saudi Arabia have made the following
reservation to CDR
article 27:
If the.authorities (of the respective state) suspect that the diplomatic pouch
or any parcel
therein contains matters which may not be sent through the oipro-uii.
pouch, such
authorities may request the opening of the bag in their pr-esence

ana in tle presence of a
representative appointed by the diplomatic mission concerned.
If such a request is
rejected, the pouch will be returned back
Many other countries, most notabry Bergium, Bulgari4 canada,
Denmark, Francg German
Fed. Rep., Great Britain, Hungary, poland, usA;ussR etc.,
have
ou;".tion; rh.,
considering it as incompatible with the object of the ",u0"
provision concerned _
1e9e_ry-ation,
Multilateral rreaties Deposited with the secretary-Genemr,Decemie.
aru rst;,
69.
e Chronique, RGDIP,
I97 4, p. 5L4.
to Internatiorwl Herald.
Tibunc , July 7th L9g4;Higgins (19g5), p. 643.
178
p;.
iz-
at about the same time. On July 12th L984 a 9 ton Soviet lorry arrived at
the Swiss frontierpost in Basel. A Soviet diplomat accompanying it refused
to have it controlled by customs officers maintaining that the lorry
constituted a diplomatic bag addressed to the Soviet permanent mission to

the UN Geneva Office. On instructions from Berne the lorry was sealed
and allowed to proceed to Geneva. Upon arrival it was allowed to be
parked inside the grounds of the Soviet mission, with the understanding
that it would not be opened without permission of the Swiss authorities.
The latter maintained that the load of the lorry was not the content of a
diplomatic bag, but consisted of 'articles for official use of the mission'
which under article 36 of the CDR can enter Switzerland and be exempted
from customs duties, but should be inspected by customs officials. As the
Soviet sidewas adamantinclaimingthe status of the diplomatic bagforthe
lorry, it was finally sent back unopened.lr
It is not sure yet what will be the final provision of the protocol on the
status of the diplomatic bag. Observations of governments received bythe
ILC as well as recent practice seem to indicate that the draft may well be in
line with the corresponding provisions on the consular bag quoted

above.l2
Provisions common to the four diplomatic law Conventions stipulate

that when the diplomatic bag is entrusted to the captain of a commercial
aircraft or of a ship, the mission may send one of its members to take
possession of the diplomatic bag direcfly and freelyfromthe captain of the
aircraft or the ship @aragraph 7 of the quoted articles). Contrary to the
draft protocol on the diplomatic bag, the Conventions now in force make
no reference to a diplomatic bag sent by mail or any other means of
transport by land, sea or air, in other words of the 'diplomatic bag not
accompanied by a diplomatic courier'. Because of the large number of
their external missions, many States, both rich and poor, currently send
their diplomatic bags by mail or air-freight. This practice, however, raises a
number of new problems.l3
From the technical point of view the unaccompanied diplomatic bag is
treated as any other object. It can therefore be easily opened, X-rayed or
manipulated in any other way. It can also be detained and delayed without
it being possible to prove that this was done on purpose. Unintentional
delays may also be caused by the inefficiency of the service concerned, the
negligence or corruption of its staff, etc. It is therefore important for the
new protocol to grant additional protection to the unaccompanied diplomatic bag. This can be achieved by reinforcing the liability of the carrier
lt
loumal de Genive,Ju.ly.l2th, 13th, 14th, 15th 1984.

12 Cf. doc. quoted in footnotes above, p. 71.,
13 lbi.d.,par.15-
179
and gf his State, by granting^ absolute priority to dipromatic

bags, and r
requiring special measures for its immediate-delivery after
it reaches d
country or city of destination. Such guarantees would make
the use of d
4.2.
The
Diplomatic Courier
The article on the freedom of communication of the mission

doqs u
contain any definition of the diplomatic courier but provides
that he
shall be provided with an official document indicating his
status and
lyqber of packages_:onstiruting the_diplomatic big9 (...)

\ /
CDR27, CCR 35, CSM 28, CRSIO 27
ANd
57),
t[
@ar. 5 o
The draft protocol adopted provisionally by the ILC elaborates

on thi
provision by saying:
(1) 'diplomatic courier'means a person duly authorized by the sendiq

state, either on a regurar basis oi for special occasions ur"u
J
h9"-(. . who is entrusted with the custody, transportatio" "o*i",
*o deliver,
)
ofthe diplomatic bag,gd is employed for the
referred to in article L.ls'
oni"ia.";;;;J;
The new draft protocol follows the existing conventions

by admitting th
possibility of appointing a dipromati"
ad hoc,wtro normatty is r
state-agent entrusted exceptionally with"o.rrier
this function.r6 The draft pro-1oco
brilus in auseful precision concerning the official document the
courierir
to be provided with. In order to avoid any possible uncertainty,
the draff
protocol provides that the courier, in aooition to his passpoJ,
*rri.rr..y
be diplomatic, service or even private, will have to be irpossession
of a
document certifying his official function.rT
The existing convention gives no indication as to the nomination
of the
diplomatic courier. The draft protocol brings the following precision
on
this point:
. . th diplomatic courier is freely anqointgp by the
sendinge state
:
or
its missions, consularposts or
deiegaions.rs
$r
'o ILC, 32nd
session, A,/CN.4/335.
ILC, Report on the 4 1st ses sion, A/ 4L / 10, article 3 par. 1.
16
!oc. cit.
15
17 Draft
article 7, ibid., paragraph 34; on the practice of
pp.2t2tr.
'" il-C, A/4L/10,

180
article 7.
States cf. whiteman,
vol 7,
This provision will certainly help to diminish or even totally eliminate the
difference between the professional and ad hoc couriers leaving the
choice entirelyto the sending State.
The relevant article of the cDR and of the other conventions provides
little precision as to the status of the diplomatic courier, except by saying
that he
shall bp protected by the receiving State in the performance of his

functions. He shall enjoy personal inviolability and shall not be liable to
any form of arrest or detention (p*. S of the quoted articles).
The very briefrress of this provision is surprising. The diplomatic courier is
the agent of communication vital for the mission. It then would have been
preferable either to give rnore details of his immunities and exemptions on
his status or simply grant him diplomatic status. The current work of the
ILC aims at claifyng
these points. Documents available at present

indicate that the solution envisaged is to have the protocol grant the
diplomatic courier a status identical with that of the members of the
,mission, in conformity with the current practice of States.
' Finally, as the diplomatic bag can be entrusted to the captain of a civil
aiicraft, paragraph 7 of the article on communications provides that he
shall be provided with an official document indicating the number of
packages constituting the bag but shall not be considered to be a
diplomatic courier (CDR 27 par.7).
The other three Conventions extend this provision to captains of ships

entrusted with this task.
The current work of the ILC indicates that on this point the projected
protocol will not bring any changes. In fact, the responsibility for the
diplomatic bag is very marginal compared with the main tasks of an airline
or ship captain. These main tasks are subject to specific national and
international regulations and there is no reason why the fact of being
entrusted with the diplomatic bag should change anything in this respect.
5. ourres
oF THIRD srATEs coNcERNTNG coMMUNrcATroN oF THE MrssroN
In most cases the territories of the sending and of the receiving States are
separated by regions under the sovereignty of other States, through which
all communications have to transit. Because of the development of air
transport and communications by satellite this transit most of the time is
no longer under the effective control of the territorial state. But where this
181
control still exists, the transit Statehas to respect a number of specific rules
of international law.
The main duty of third States in this respect is to grant to communications between the sending and the receiving States the same treafinent as
that granted by the latter.le This duty concerns all forms of communica-
tion, namely official correspondence, telecommunications including
coded messages, and, finally, the diplomatic bag and the diplomatic
courier. This obligation of the third state applies not only to cases when
transit takes place on a regular basis with its prior consent but also when
the presence of objects or persons in its territory is due to unexpected
events of force majeure.In addition, this obligation is absolute, which
means independent of relations existing between the third and the sending
States.
The existence of this obligation can only be explained by reference to

the global network of diplomatic relations, of which the exchange of
missions between two states is only one of many components. This
network, essential for the maintenance of international peace and security
requires the collaboration of all States.
1e Paragraphs
4 and 5 of the
182
following articles: cDR 40, ccR 54, csM 42, cRSIo
g 1.
Chapter)ilruIl
Principles of Implementation of
Immunities and Exemptions
pefore proceeding with a detailed study of the different diplomatic

immunities and exemptions, it is necessary to specity to whom,lo what,
where and when they ire to be applied.
L. lppr,rcerroN
,
As
ro
pERsoNs
(ntttoxn ernsorvnr)
h. plr"rple, diplomatic immunities and exemptions apply to external
nli*sions of subjects of international law, to their

-"-u"rc and to their
families, and extend to the premises, appartments, property and means of
transport. This general rule has, however, to be quatified according to the
categories of staffand the types of missions.
Immunities and exemptions apply fully to members of the diplomatic
statr of the mission, meaning persons having the quality and rank of
diplomats. This broad category (seg above, chapter Xir; includes, besides
diplomats serxu stricto, members of special missions who are ,representatives of the sending state' (csM 3L), as well as international civil
servants of the professional category when on the staff of an external
mission, and finally, e4perts sent by international organizations.r For these
persons immunities and exemptions extend to their families forrring

households.2
The administrative and technical staff constitutes the second category.

Their immunities and exemption are more rimited, but they extend alio to
their families.3 In certain cases doubts may arise as to whether a given
This does not mean, however, that staff members of missions of international
organizations have an identical status with diplomats.

2 Wilson (1967), pp. L79-L95.
3 lbi.d., pp.L57-L64. Some States, namely
Botswrna, Eg5rpg Iraq, Libya, have made
concerning article 37 of the CDR, by which they agree, on condition

of reciprocity, to extend frrll diplomatic status to members of the adninistrative staff
of
diplomatic missions. Many State.s, such as Belgium, canada, Denrnark, France,

German Federal Republic, Greece, Hungary, Ireland, New Zealand, etc., raised objections,
183
individual does or does not belong to that category. For instance, the
Frenchrribunal of state security said in a judgrnent onJuly 1st 1975, that
'the commercial representative of a foreign state, aciording to the
convention on Diplomatic Relations is an administrative and iechnical
agent and is therefore entifled to immunities granted by the convention to
that category of staff. including the immunity from penal jurisdiction,.a
The situation of the consular staff of consurar poits is even less
favourable. Not only the immunities and exemptions granted to them are
more limited than those of the administrative and technical staff, but they
do not apply to their families.
Finally the service staff and private servants enjoy exclusively certain tax
exemptions which do not apply to their tamilies.s

The application of diplomatic immunities depends also on the nationality of the persons concerned. The different categories of missions'
members enjoy the corresponding immunities only when they are nationals
of the sending state.6 If a person is a national of a third Stati he will enjoy
these immunities onlywiththe express consent of thereceiving State.If th;
person is a national or even resident of the receiving State hiiirnmunities
and exemptions are even more limited.T Finally, in external missions of
international organizations only'internationally recruited, staff membe,rs
enjoy immunities and exemptions corresponding to their category.
As pointed out before, immunities and exemptions of these citegories
of external missions' members and of their families are granted to them not
in their personal capacity, but solely because of their functidns as members
of a mission. The distinction between personal and functional immunities
suggested by certain authors does not therefore seem to be well founded.s
2. eppllcrlrloN
As
ro suBsrANce (nazorvr uatnnun)
The application of immunities and exemptions to acts and objects

depends, onthe onehand, ontheir official orprivatecharacter, and, onthe
other, on the person who performs the acts or owns the objects. Accordmaintaining that the reservation above was incompatible with the provision concemed,
cf. Multilateral rreaties for which the uN secretary General acts as Depository, r9g5,
pp.57tr
4 RGDIP,L979,p.1279.
s Some States grant them more extensive immunities.

For instance, this is the case of
Great Britain who does so by virtue of the 170g Act of eueen Ann cf. wilson (1967),
pp. L64-179.
6 Whiteman, vol. 7, pp. 253-260.
CDR 38, CCR 71, CSM 40, CRSIO 73; Wilson (1 9 67), pp. tg6-2t6.
1
8 See e.g. Suharitkul (19 67), p.
98.
1.84
'
ingly, immunities
and,exemptiont
/pptl to all acts accomprished in the
name of the mission uy m"hu"./o?'itr
diplomatic
and other
_",'"T.p9o* apply also to alr the property of the mission. The members of
the diplomatic staff of the r-nissioir ario
their familie,lri"v-i--""ities and
exemptions concerning
officiar
;d,T;
il
or private,
which
to either prir,?t"-rq?o{
"r""pGo.epractice
or private professional
$ate
{iop"rty
situated or exercised in the Stutb oir"i,id"r"".
The distinction between acts accomprished

in the exercise of officiar
functions
private ones is impor.-r-:,-.*t when non-oipr"-"ti"
-and
staff is
concerned. In that case immunityfrom
criminar i*irJiJr" appries to
both official--and private acts oi members
of the administrative and
technicat staff, whereas immunity from
jrri.di"ti;;;;;erns
civil
only
their official
acts.
In the case of consurar officers in consular posts

only their officiar acts
are covered by the immunity from both.ri-i"a
.irili*irJi"riorr.
The extent of immunitiei and exemptions is -o
even more rimited in the
case
of the service stafps members and private

servants.
This progressive reduction of the rgop"
of immunities and exemption
whichfollows thehierarchicar orderof ,ri"*b"r,
of themission reflects the
relative importance of the functions of
each category.
3. appr,rceuoN As ro pLAcE (n,trrcNz t oct)

In principle, the receiving state is under the
obligation to grant dipromatic
immunities and exemptions in its entire territofu.
Thi, ;;;i; nurio .u*
when the zone of activities of the mission
is timitlo or when the receiving
state imposes on members of the mission limits
on the freedom of their
movements.
under certain conditions diplomatic immunities and
exemptions have
also to. be applied by third State.. The four
diplomatic law Conventions
carry the following provision on this subject:
1' tr trq diplomatic $!|t.Rasses through or is in the territory of a third

State, which has granted
him a passport"visa if suct a ,rirawasLr"r.ury,
wlile proceeding to take up orio
to his post, o, *rr"r, i"torning to
."t
h: oY, country, the third State shall -accord r,irn iouioruuility and
such
other immunities as may be required to ensure

his transit or return. The
same shall apply
of
any
member
gase
or his famiff enjoying
T .the
privileges or immunitiel
w.hg ge accompanying the diplomatic agent,
or
separately to join him or to return to tfr"i, country
I1:lF.g
(CDR 40,
CCR 54, CSM 42, and CRSIO 81 with a slighfly
diff;r;*.)Oirg.
18s
t'
,$
jl:!
i
.rn
,t. i)
The next paragraph of the same article extends the application of this
provision to members of the technical and administrative staff, to service
staff and to their families.
The granting by third States of these immunities and exemptions is
conditional on the transit being direcfly related to the posting in a specific
country. This condition applies also when the person goncerned is present
in the territory of the third State dueto force mnjeur!(par. 4 of the quoted
articles). This obviously excludes private travels nobrelated to a post"rg,
for instance vacationing.e
The transit of members of special missions through the territory of a
third state is subject to a double condition. The third state, firsfly, has to be
informed beforehand about it, and, secondly, is not opposed to it. When
these two conditions are met, the third State has to grant members of the
special mission and its courier a treatment equal to that of permanent
diplomatic missions'staffs (CSM 42 par.4).
Two cases illustrate the practical significance of these provisions. on
Iuly 24th L970 an Indian national was arrested at London airport
pursuant to an extradition request of the New Delhi government under the
indictment of forgery. The person detained was holder of a dipromatic
passport and of a letter certifying that he was economic adviser on an
official mission for the government of Costa Rica. Several months later a
British court rejected his claim to diplomatic immunity. The reasons glven
were that the accused was not accredited to the British Government and as
he was not travelling to take up a post in another country, he could not take
advantage of the provisions of article 40 of the CDR.10
Another case occurred in 1980 when Greek authorities arrested,an
attachl of the Belgan diplomatic mission in Iraq, who two days earlier in
Athens, had shot and killed his wife. The question to be asked here was
whether a prolonged stay in the third country could still be considered as
transit. If the answer was to be negative, then there was no reason to grant
the culprit immunity from arrest.1l
4.
,q,ppr,rcluoN rN
rwn Tnnrr/Ne rnaronrs)
The conventions in force contain specific pfovisions as to the duration of

diplomatic immunities and exemptions. The]general rule applicable is that:
1. Every person entitled to privilege. ur}L **ties shan enjoy them

from the moment he enters the territ/ry of the receiving state on
e Whiteman, vol. 7, pp. 127-131.
10 Chronique, RGDIP,1.980, p.
209;Derua(L976),p.246;tr-R vol. 52, pp. 369_3g1.
11 Chronique, RGDIP,
1980, p. 1079; for other caies cf. Satow (1 979), pi. f S f A.
186
'
if already in its territory, from the

moment when his appointment is notified to the Ministry of Foreign
Affairs or such other ministry as may be agreed (CDR 39, CCR 53,
CSM 43, CRSIO 38 and 68). I
proceeding to take up his post or,
This provision also applies to traqsit through the territory of third States.
It has to be pointed o\t thy't the Conventions do not require the
receiving State to be informed,4n advance of the appointment and of the
arrival of the member of the,hnission. As a result, the diplomatic agent
concerned, in order to take advantage of this provision, has to be able to
prove his membership of the mission. The diplomatic passport itself is not
enough and does not entifle its holder to diplomatic immunities, except
when it carries an appropriate visa of the receiving or transit state. Finally,
the appointment to the mission of a person already in the territory of the
receiving State may create problems (cf. the vitianu case above, chapter
)(JIr,2.3).12
The moment when the application of immunities and exemption ends is
also clearly stated in the next paragraph of the quoted articlej:
2. When the funqtions of a person enjoying privileges and immunities

have come to an end, such privileges and immunities shafl normaly
cease the moment he leaves the country, or on expiry of a reasonable
period in which to do so, but shall subsist until that time, even in case of
armed conflict.. ..
The term hormally'used above, which seems to point out the possible
existence of exceptions, requires three comments. In the first place, there
may be the case when the receiving State declares a person non grata upotl
receiving noffication of his appointment to the mission and refuses to
recognize him as such if he nevertheless enters its territory.13 Further, the
term 'normally' receives another significance in the light of article 9 , par. 2
of the cDRwhich authorizes the receiving state to refuseto recognize as a
member of the mission a person declared non grata and who has not left
the country within reasonable time (also CSM 12 and CCR 23).
Finally, an armed conflict involving directly or indirecfly the sending
and the receiving States, may bring to an end the functions of the
diplomatic mission and of its members, forcing them to return to their
country. This does not free either the receiving nor the transit State from
this obligtion to grant them immunities for as long as they are in its
12
See also Whiteman, vol.
t3 Derrza(1976),p.245.
7,pp.436-445.
187
It is a well established rule of customary international law,

included in the recent conventions.
The same paragraph contains another important provision:
territory.
. .. However, with respect to acts performed by such a person in the

exercise of his functions as a member of the mission, immunity shall
continue to subsist $nr.2 of articles: CDR 39, CCR 53, CSM 44,
CRSIO 38 and 68).
Reference to the distinction between official and private acts of members

of the mission is made here again in order to guaiantee that a person will
never be held responsible for acts which are attributable exlcusively to the
state.r4
The case of the diplomatic courier is to be considered separately. He is
protected by the receiving State tn the exercise of his fturctions', which

means that his immunities cease when he has accomplished his functions
(see above, chapter XVII, 3). According to the draft protocol on the
diplomatic bag and courier, his functions come to an end with the
accomplishment of his task which consists in handing over the bag at its
final destination.ls Accordingly, his immunities should end precisely,at
that moment. The final provision of the protocol is not yet known, but in
actual practice States grant immunities to the courier as long as he stays in
their territory.
It has still to be considered how immunities and exemptions are applied
to the family and property of a deceased diplomatic agent. According to
the Conventions
3. In
of death of a member of the mission, the members of his

family shall continue to enjoy the privileges and immunities to which
they are entifled until the expiry of areasonableperiod inwhichto leave
case
the country (par. g of: CDR 39, CCR 53, CSM 43, CRSIO 38 and 68).
The movable property of the deceased member of the mission, provided

he was not a national or resident of the receiving State, can be withdrawn
without any duties or ta:res being levied.
The question as to how long immunities and exemptions should be
applied to the premises of the mission has also to be answered here. The
problem is to decide at what moment buildings or parts of them begin and
a Cf. on this que.stion the opinion of the Swiss Ministry of Foreign Affairs of
January
1979, A5D1,1981, p. 210.

15 ILC, A/CN.4/I-.348 par.
43.
188
st
when they cease to be 'premises of

the.mission'. The beginning may
coincide with the signing o}the r"ase, with
the acquiritio"
orffierf, with
tl,e effectivg taking poisession, *itrr trr"
beffig
or trr"'"orrtruction
works on a building fg .n: mission, or,
fina$, with"the
occupation of the premises. The conventio* irlor""
"r""tiu" on this
give no indications
po}t, and both practice and doctrine are rather
uncertain.l6
The most reasonable approach is to appry
immunities and exemptions
to premises of the mission from the roo-ioiit
tras outainJ" ilga titre to
them and until such a tifle expirer,."*."pi
when it can be proved beyond
reasonable doubt that the miision is
noiusing them nor 6-th; intention
or possibility of doing so-. This may occur,
forlnstuo.", *t * thJcapitar of
the receiving state lias u"e" pe.manffi
to another city. If the
mission has effectivery moved into the -ou"d
new capital and has not been
granted permission to open an office
in theformer o"",i; ord premises,
are its proper^ff, can no ronger u"
."J"
the mission'in the sensi of-the ConventiZns. ""*i.i"rr"olr"f'r"-ir". or
rs"I
5. ine
cAsE oF INTERNATToNAL oFFrcrALs
The application of immunities and exemptions

to internationar ofEciars
who are members of external missions
ot'iot"o,atio-rra-oftuilu,i.ns is a
separate question.
rn his work on internationar immunities the
late w. Jenks discussed
three points on which they differ from
diplomatic immuniti".:i ro
$e first
placg, diplomatic agents
iecruited
among
nationalof
the
3re.normany
sending state and they enjoy
immunities only outsid" tftt;;;ffi;.
International immunities, on the contrary,
may be particularily important
precisely in the country.of the nationalityof
the internationar civil servant.
Secondly, the diplomatic agent is a-uyr
subject to the personar jurisdicfon o.f the sending State. Cecaure i" tire case of an international official
thereis no sending State, he comes underthejurisOiction
ofu Siut" orrry Uy
the waiver of his internationar imm,nity;
otherwise tre iszubjegted only to
disciptinary sanctions of his organiz"t6;-F;rrfia;ffi;#
to respect
diplomatic immunities is sancloned by recipr#,).
I"
,h:
#e
of inter_
national immunities there is no recipiocity,
a"a ir,"*t-" *.y precise
provisions on the subject are requird.
specific to international civil servants is the problem
of the extent of
immunities which they enjoyin their own
tountries. The UN charter and
_Cahier
(1964),p. L98; Whiteman, vol. 7,pp.362ff..
Jenks (196L),
p.XX)ilIII.
189
I
;*
f
{l{
1
E#
the constituent acts of the Specialized Agencies, on the one hand,

guarantee the independence of the Secretary General and of his statr (uN
charter, art. 100), and on the other, engage its members to grant oaiiiats
oj the organization'such privileges and ummunities as are necessary for
the independent exercise of their functions in connection with the oiganaation'(art. 105, par. 2). As this provisionmakes no reference whatsoever
to the nationality of officials, ii has to be understood that they erijoy
the same immunities in the territories of all member states, inclu{ing
their own.
Even though the principle is clearly stated, its practical implementation
raises some dfficult problems. w. Jenks, after surveying the provisions
concerning privilrcges and immunities of various international organizations as well as their seat agreements, discovered an amazing uversity ot
rules relating to immunities enjoyed by international officials in tireir
respective countries. He concluded, therefore, that, in general, these rules
are more restrictive than is permitted by the charter. But he also

recognized that the immunity of international officials for acts in the
exercise of their functions is widely accepted and respected.l8
t8 lbid.,pp.77l-114.
190
ChapterXIX
The Inviolability
L. rnr coNcEpr
The expression tmmunity from coercion'used in this chapter seems to be
more precise than the term'inviolability'used in the conventions and in
publicists' writings.
The inviolability of the mission and of its staffis closely related to two
other concepts. The first one is the duty of the receiving State, discussed
XVf), to reinforce the exercise of its territorial sovereignty,
-abov9(char_]er
by taking all necessary measures to ensure full protection of the mission
against any external danger or menace.l The second one, discussed in the
next chapter, is the immunity from jurisdiction which shields the mlssion
and its staff from the jurisdiction of the receiving State's courts and from
any proceedings before its other organs.2 As to inviolability, it shelters the
mission and its members from any constraint or coercion which the
receiving state, by virtue ofits sovereignty, rnay exercise over all persons
objects present anywhere in its territory. This coercion is exeriised by
3nd
its executive organs acting within the limits of the law, mosfly by order of
the judiciary. In many countries, however, it is used in a totally arbitrary
manner.
In order to grasp the significance of the immunity from coercion better
we have to deal with the immunity of the mission and with that of its staff
separately.
2.
TNVIoLABTLITy oF THE EXTERNAL MrssroN
Tlre principle of inviolability of the mission is clearly stated

following provision common to the Conventions discussed:
in
the
1 Giuliano (1960), pp. 11 1ff.

2 Loc. cit.; Sucharitkul (1976),p.95.
L9L
The premises of the mission shall be inviolable. The agents of the

receiving state may not enter them, except with the conseniof the head
of the mission (CDR 22,C5M25, CRSIO 24).
1".
In the case of consular posts this immunity is limited to
that part of the consular premises which is used exclusively for the
purpose of the work of the consular post (. . (CCR 3L par.zj:
)
The world court made an important contribution to the clarification of
that provision. The case of the American embassy inTeheran posed the
question of the distinction to be made betrreen, on the one -harrd, the
obligation of the receiving State to protect the foreign mission and, on the
other, the inviolability of that mission. As already mentioned (cf. chapter
xvl, 1) the passivity of the kanian authorities at the moment oi a" uttû.t
on themissionbyMuslim extremists was a serious breachof theobligation
of protection imposed by the 1961 vienna
convention. Later on
Ayatollatr Ktromeini and members of the Iranian government gave their
full support to the continuoPs occupation of the embassy and the
detention of its staff. On this point the Court said:
T^he-result ofthat policy was fundamentally to transforrn the legal nature
of the situation created by the occupation of the Embassy and the

detentionof its diplomatic and consular staff as hostages. The approval
given to these facts by Ayatollah Khomeini and otf,er organs of the
Iranian state, and the decision to perpetuate them, transhtld continuing occupation of theEmbassyand thedetention ofhostages into acts
of
that state. The militants, authors of the invasion anaJailers of the
hostages, had nowbecome agents of thelranian State forwhose acts the
State itself was internationally responsible.3
Furthermore, after stating that the passivity of the Iranian authorities was
a
violation of article 22,par2 of the cD& the court added moreprecision
to the distinction mentioned above: paragraphs 1 and 3 of that article have
al-so been infringed, and continue to be infringed, since they forbid
agents
of the receiving state to enter premises of a mission with-out consent to
undertake any search, requisition, affachment or like measure on the
premises. secondly, they constitute continuing breaches
of. aftrcle 29 of
the same Conventionwhichforbids any arrests or
detgptign ofa diplo_matic agent and any attack on his person,

freedom
or dignity. Thirdly,Iranian authorities are without oouut in continuing
3 ICJ, Reports, 1980, p.
35,par.74.
192
breach of the provisions (. . ) of Article24 (of"thecDR) and Article 33

(of the ccR), which provide for the absolute inviolability of the archives
and documents of diplomatic missions and consulates.a
Article 22, par. L of the cDR quoted above forbids in absolute terms
agents of the receiving State to enter the premises of the
mission without the consent of its head.s This is somewhat qualifis6 in the
case of special missions and consular posts. The respective articles of
those two Conventions provide that the consent of the head of the mission
or of the post to let agents of the receiving State enter the premises may be
assumed tn case of fire and other disaster that seriously endangers public
safety' and requires immediate measures. It is interesting tJ note that

similarproposals were rejected whenboththe CDR and the CRSIO were
drafted. These different solutions adopted by the conventions cannot be
rationally explained, especially as they concern quite exceptional situations. Whatever the case may be, it seems rather improbable that in a
situation of serious public danger measures perrritted in the case of special
missions and consular posts would be considered as stricfly forbidden as
far as diplomatic missions and missions to international organizations are
concerned.
According to the next paragraph of the quoted articles inviolability, in
addition to the prohibition to enter premises of the mission, also means
that:
3. The premises of the mission, their furnishings and other property

thereon andthemeans of transport of themission shallbeimmunefrom
search, requisition, attachment orexecution (CDR22,CSM 25, CRSIO
23).
This provision is perfecfly clear and precise. The only point to be
emphasized is that it implicitly also protects the mission from receiving by
messenger or by mail any notification from the judicial or other authorities
of the receiving state. If absolutely necessary such documents have to be
transmitted through the Foreign Ministry.6
In the case of consular posts a similar provision mentions only ,any form
of requisition for purposes of national defence or public utility,, but does
not exclude expropriation for those ends, on the condition, however, of
not impeding the exercise of consular functions (CCR 31 par. 3).
a lbid.,par.77.
5 Whiteman, vol.7, pp.337ff.; concerning special missions, see Maresca

(L975),
pp.339tr As to the position of the Swiss Departrtrent of Foreign Affairs, ASDI, lg}t,
pp.269fr.
6 On the question of violations of premises of UN missions, see Practice of
the UN
lLC, Yearbook, 1967, vol. II, p.227; alsoWhtteman, vol. 7,pp.392-397.
...,
193
After estabrishing the.re{ meaning of inviorability

the question has to be
asked whether this principre must" be fulry
,"rp""t"o=-lr* when the
security of the receiving stite is in-ygopardy.
Ttr"iouu*i"!iir*"",ouy
illustrate this point. kr February |ils'acontainer
addressZd to the Iraqi
embassy in Islamabad w.as accidentany damaged
anopatiriai customs
officers discovered that it contained uiu1s9 quantity
of arms. Upon this,
the Pakistani Foreign Ministry requested"the rraqi "amuassJor
to alow
police ofEcers to search mgpiemises of the;b;r1y.
Thi. ,Ji"r* having
been refused porice forced iireir way into
the emuas.y ano oil"ore.eo sq
containers filled with arms, e4prosives and ammunition
which were to be
delivered to Belouchistani rebets. Following
this, the ambassadors of both
countries were immedilely recalled, but two
months later the problem
was settled.T There can be no doubt that
the search of th;;;t"ssy was a
violation of Articre 22 of the cDR.It is no less
certain, however, that this
was a reaction to an equary_ flagrant violalgn
uv trr" riuqi'embassy of
a$9te 4r,par.3 of the same-coniention which
expri;itry;;i,iits the use
of the premises in anymannerincompatible
withits functions.
The violation of the-principle of irruiotuuitity
.* il;trke ress con_
spicuous but more sophisticaied forms.
euite i.rd";i;o;;;ays is the
secret installation of electronic listening
dy9"l ." t'h" ;;";Js of foreign
missions by agents of.ft: receiving staie.
This h^ hrpil;;l;;rinstance,_
in warsaw, where such devices weie discoveredinthenewbuildings
of the
American, British and French Embassies
constructed by rocar contractors. similar cases occurred in a number
9f.oth9r *p-JJ. f-purti",rturty
important instalation was found n rgTg
in the d;;imbassy in
Moscow. Replying to an American protest
Soviet authorities stated that
the discovered devices..w.gy srryf1V a protection
measure against espion_
age and subversive activities of thl American
secret ."*ic'J'rrr" s,ut"
Department disclosed also that the American
embassy i" vror.o* rrui ioi
ten years been exposed to mysterious radiation,
the irur"." *o origin of
which could not be determined. The guess
was that they r"*"0 either to
jam the electronic surveinance
"quip;;; of the ",,u".'rv ", iJ u ,"*o,"
control for secret listening devicei.e
inviolability of documents of the mission is
deart with in the
^ Jh". article corrmon
following
to an the main conventions:
The archives and documents of the mission
shall be inviolabre at any
time and wherever they may be
24,
CCR 33 and 61, CSM 26,
lCOn
CRSIO 25 and 55).
Chronigu, RGDI?
,
: chronique,
8
RGDI?,
e lbid., 1.97 6, p.
1ZZ3;
794
4,p. 51 1; Den za (tg7 6),p. g4.

rg6sa, p. 4g3'; rg66,p. r 7 6; 1g7 5, p.
1977 , p. g9Z',;19g0, p. 3g3.
1.g7
zr7
rg7g,p. 7 54.
Thisprovision is particularly importantwhen, for some fortuitous reason,

the documents of the mission are in a prace outside the premises or the
means of transport of the mission. The inviolability o1 the mission s
correspondence is guaranteed by a provision on the freedom of communication (d. chapter XYII,2).
The inviolability df the premises of missions of international organiza.
tions of the uN system is recognized e4pressly by a provision-of the
convention on their privileges and immunities. Its wording is very similar
to that concerning diplomatic missions:
The premises of the united Nations shafl be inviolable. The property
and assets of the united Nations, wherever located and bywhomsoever
held, shall be immune from search, requisitiorl confiscation, elpropriation and any other forrr of interference, whether by executive, ad-irri*trative, judicial or legislative action (cpIUN, section 3, cpISA, section
s).
The same instruments provide also that the offrcial correspondence and
other official communications of the UN cannot be subjecfto censorship
(respectively sections 9 and L2). Protocol No 3 of the Lom6 convention
carries similar provisions on the correspondence of the EEC delegates.
3. INvroLABILrry
oF THE MlssroN,s MEMBEnS
The diplomatic law conventions give the fonowing definition of the
immunity of coercion of members of an external mission:
The person of a diplomatic agent shall be inviolable. He shall not be

fi{le to any form of arrest or detention. The receiving state shall treat
him with due respect and shall take a[ appropriate steps to prevent any
attry| on his person, freedom or digniry(bDh 29, CSivI Zq, CnSfO Zi
and 58).
These three sentences constitute undoubtedly the cornerstone of the
whole structure of the diplomatic status. The personal inviolability of the
diplomat is historically and logrcally at the roots of all the othei rights,
immunities and privileges which over centuries have beengranted to rri"r,
and which, in the final analysis serve to protect him and his family from any
constraint that he might suffer from the State he has been sent to. Today,
however, personal inviolability is only one of the elements of diplomatic
stafus.
The inviolability enjoyed by the diplomatic agent extends to his family,
19s
re-
and to members of the administrative and technical staff and

to their
families, provided they are not nationals of the."""iuirrjsat"
(CiR l?,
csM 39, cRSIo 36 and 56). some difference of statuJof these various
c.ategones of persons concerning the extent of the immunity
from jurisdic_ .,
tion will be dealt with later on.
The diplomatic courier (see above, chapterXVfl, 3.2) enjoys ,personal
inviolability and shall not be tiable to any form of arrest"or
detention,
(CD_R:
?7 pil. 5, CCR 35 par. 5, CSM 28 par. 6,CRSIO Zt piagraph' 5
and 57
_par.6). on the other hand, member. of the service staff and
personal servants donot enjoypersonal inviolability
(cDR 37 paragraphs
2to 4,CSM 36, 37,3g,CRSid 36 and 66, paragraphs 2 to 4).
Members of the staff^_of consurar posts e;joy i oinerent stiius
again as
provided forby the CCR:
1. consular officers shall not be liable to arrest or detention pending

trial, except in the case of a grave crime and pursuant to a'decision
of thE
competent judicial authority.
2. Except in the case specified in paragraph L of this article, consular
ofEcers shall not be committed to prison oi liable to any other
form of
restriction on their personal freedom save in
of judiciat
decisions of final etrect (CCR 41).
"*"".rtion
These provisions clearly indicate that personal inviolability
of consular
officers, everrthough more rimiteo trran that of both diplo*uii. agents
and
members of the administrative and technical statrof diplomaticinissions,
shields. them completely from any coercion which might b"
uppri"d;yG
executive and administrative organs of the receiving 5tut". rir"i, families,
however, as well as the administrative and technical-staff of consular posts
are granted no personal inviolability whatsoever.It has to u"
,"."-f,oJ
here that members of a diplomatic mission entrusted *ith .;;;;

functions come in this respect under the provisions of the cDR
(ccR 70
par.4).
Personal inviolability would not be complete if it did not extend
to the
private lodgings of theperson enjoying it. cin this point the diplomatic
law
Conventions contain the followingprovision:
The private residence of a diplomatic agent shall enjoy the same
and prytec!9n as the premises-of the mission (cDR 30,
CSM 30, CRSIO 28 and 58).
.1.
rlyotlbitity
This inviolability is not only elaborate but extends also to the

means of
transport of the persons concerned. It also covers their documents,
tg6
correspondence and, in principle, their belongings.lo This also applies to

members of the administrative and technical staff but not to thi itar ot
consular posts.
Inviolability extends, fuuly, to the personal baggage of members of
external missions, as provided for by the conventions discussed:
personal baggage of the diplomatic agent shall be exempt from

Jhe
inspection, unless there are serious grounds for presuming that it
contains articles not covered by the exemptions m-entioned in paragraph 1 of this Article, or articles the import of which is prohibitid by
the law or controlled by the quarantine regulations of the receiving
state. such inspection stra[ be conducted ;ry in the presence of the
{qlomatic agent or of his authorized representative lcon 36 par.2,
CCR 50 ptr.2, CSM 35 par.Z, CRSIO 35 and 65par.2, CpI(. i
section tLt0.
It has to be pointed out, that a member of an external mission who is a

natiolal or permanent resident of the receiving state enjoys personal
inviolability only when performing ofEcial functions.

question has yet to be considered whether the personal inviolability
of-T-he
the member of an external mission is absolute.-The wording of thl
provisions quoted above seerns to suggest a positive answer. such an
interpretation, however, would be contrary to the principle of functionality. It would also deprive the receiving State of any means of
protecting its own vital interests. The ILC discussed this problem and in its
commentary to the draft of the cDR insisted on the necessity of imposing
some reasonable limits on the principle of inviolability. coin-"rrti,rg oi
the draft article concerned, the commission stated ttrat ttre principle of
inviolability
does not exclude in respect to the diplomatic agent either measures of
self-defence or, in exceptional circurnstances, measures to prevent him
from committing crimes or offences.ll
No similar statement is to be found in the ILC's commentaries on the

corresponding articles of either the cSM or the cRslo.l2 This does not
imply, however, that the above interpretation cannot be applied to the
r0 For exceptions to that rulg
see present chapter, section 4.
" LC, Yearbook, 1958, volII, p.97; also Giuliano (1960), p.120; Wilson (1967,
pp.62-67.
12 RaspectivelyILC,Yearbook,Lg6T,voL[l.p.36l,andUNdoc.A/Conf.6|/4,arlcla
28
and, 29,
Commentaries.
L97
latterinstruments.
fs amatter of fact, restrictions imposed oninviolability
h-ave a double justification. They take into
consideration, on the one hand,
the real needs of the functions and, on the other, th" g;;;Jprincipre
of
international law according to which every state i"s
allowed to take
appropriate measures to protect its public order and its
vital interests.In
its judgment in the case of the American embassy in
Teheran, the world
Court supports this viewby sayrng;
Naturally, the observance of this principle-(of inviorabirity
- L.D) does
not mean (. . ) thatâ diptomatic agent caught in the
act of committing an
assault or other offerrce may not, on oc"alior, be briefly
arrested bv th"
police of the receiving state in order to prevent the
commission of the
particular crime.l3
|ules concerning the inviolability of members of external missions of

international organizations have some ambiguities.
According to the
conventions on theprivileges and Immunities Jtorg*irutio^
of the uN
system, only the heads of their secretariats and "their
deputies enjoy
'privileges and immunities, exemptions and facilities u."o.d'Jd
to diplo_
matic envoys' (cpIUN.sectio-n r9;. among immu"itier
a"J
granted to other officials of these orgarizations,
IisteJ "*".ptior*
mention is made onl.y of the immunity trom regar proces, "rhaurtiv"ly,
in ,espect to
words spoken or written and all acts performedly
them i" trr"i. official
gaO.agrt-l'.-.(ibid., section 18), and nothiog is said about tfr"i, p".rorut
inviolabiliry.
The status of experts who are not officials of the organization
is
somewhat ffierent.to The exhaustive list of their immuniti;*d
tions mentions in the first place 'immunity f.om perrorrJ "r"*p_
arrest or
detention and from seizure oi their personatbaggagj
*
*"u
as
-- tnviolability
lo14 papers and documents,(Cprt.rN ,""T"izil.ri
The UNDP Basic standard Agreement refers to the
above mentioned
texts in all matters relating to immunities and exemptions
of ttre resident
representative, of his staff and of his e4perts. This
seenrs to indicate that
international officials and members of LnvDp missions,
inrt oiog it, t
do noJ enjoy personar inviorabirity. This, however, i";;;a;
"uo,
in actual
practice --v states who e4prLssly grant diplomatic
status-to uNDp
.oj
m$slons.'"
1,3
lCJ, Repor*, 19g0, p.40, par. g6.
'n See above, chapter XII, section 4.

1s The
GPISA does not contain this provision,
annexes concerning specific agencies.
but similar clauses are included in its

6 For more information
on this subject, see Analytical Study of privileges
- and Immunities
for Internationaly Recruited personner in the Fi"n,
uropzapw 236.' --1
198
The actual status of the delegate of the EEC to an ACP country depends
to a large extent on the State concerned. Protocol No 3 of the Lom6

Convention stipulates only that the delegate will enjoy the trsual immunities and facilities'. This leaves open the question whether provisions on
diplomatic missions should be applied here or provisions concerning
missions of international organizations.
ChapterXX
Immunity from Jurisdiction
i\
i
I
r
i
i:
r
i
i.
i
i
i
t,
l:
ll
i[
ii
ii
il
t
i
1,. rnB DEFTNITToN
i,
I
t-
i
I
I
a
t
I.
il
I
Fi
!.
I
&
b
F
l
I
li
t
I
f
r
I
If, as stated above, personal inviolability is the basic element of
the
diplomatic status, immunity from jurisdiction is then its logical consequence. Immunity from jurisdiction means, in fact, that the diplomat
-by
gannot be subject to any fonn of coercion even when exerted
the
judicial authority of the state of residence. The ILC has defined it wittr
some more precision:
I
I
'Immunity' means the privilege of exemption from, or suspension of, or

non-amenability to, the exercise of the jurisdiction by the competent
authorities of the territorial State.l
t
It
E
,r
l
n
l
r
p
I
I
It\
[,)
['
t;
r
h
ir
I
h
,4
l
ir
t
r
ll
il
In spite of its relative simplicity, the principle of immunity from jurisdiction of diplomats has always givenriseto doctrinal discussions.2 Nowmost
'of the ambiguities have been dispelled. This is due to the universal
acceptance of the functional theory of diplomatic immunities, and to the
work by the ILC on the issue of trre p.isaictional immunity of states in
general.
It
u
E
t
P
i
T
Ii
2. ecrs
I
lt
ATTRIBUTABLE To rHE sENDINc suBJEcr
fi
l
h
ll
r
t:
t
I
E
The external mission composed of one or more persons is an organ of the

sepding subject. As such it has no personality of its own and all its acts have
t
:
I'
I
t,
a.
i
t
lfft
the
par. 1(a).
i
:
',i
i
articles on the jurisdictional immunity of States and their property as discussed by
ILC at its 1982 session, tlN doc. A/cN.4/L.345,paragraph tg,notezT:draft article
i,
. whiteman,vol.7,pp.403-412.
immunities of diplomatic missions
Satow in his classic work treats jointly privileges and

(chapter 14), but concerning diplomatic agents deals
separately with immunities (chapter 16) and privileges (chapter 15), without, however,
explaining these different approaches.
;
I
I
i,
i
I
I
!
ti
ti
il.
201
to be considered as als_of th{"subject.In connectionwiththeimmunity

states in general the ILC e4pldins ihis situation in
the foflowing terms:
... Lacking as they do international
of
regal personality as a sovereign
they would nevertheless represent the State

"-rtity,
the
central Government
oiact on behalf of
of the siate, which they in tu"i
u,
integral parts. Such state organs or departments of "orrrpog"
Governments
comprise the various Ministries of a Government, including
the armed
forces, the subordinate divisions or departments within
uir,rst.y,
-such as embassies, special missions and consular portJ "uJl,
The attribution of all acts of the mission to the sending
state is thereby
clearly established. A draft of another convention aooptEJuythe
ILC has
this to say on this subject:
For. the purpose of the present articres, conduct
of any State organ
having that status under internal law of that state
shal be'considered as
an act of the State concerned under international
law . . .a
This means that any act accomplished in the exercise
of his functions by a
member of an external mission, whatever his category,t
to be considered as anact of themission, and therefor" u,
u"i oiirre senaing state
or other subject of international law.
Findly, the ILC, in the araf--afealy quoted, states
the principle of the
immunity of states, wel estabrished in internationar
hwjby
saying that
'"u."q State is exempt from the jurisdiction of any ott
This is the
principle of the absorute incompetence of the;rrtr.f
".it'u#.s
;*;State to try
any other State.
. Follorring from this, two points have to be made. In the first place, it is
impossible to distinguish the immunity of the mission
from that of its
members.6 secondly, the immunity for utt. u"co-prished
by members of a
mission in the exercise of their functions is not il-*-r"t
y specific to
members of external missions, but a rule of general
interiationa hw
concerning all State organs.T The fact that this imlnunitvisuli"g
oealt with
geparately as the immunity of members of external missionsls'due
to the
fact that, contrary to other State organs, externar
missions, by aetinition,
3 ILC, A,/CN.4/I-.345/add.l,
article 7, Commentary par. 16.
a Draft articles
on the responsibility of states: part 1,
vol. II, Part II, p.
article 5, ."v'
ILC, yearbook,
r9g0,
' e4' '
31,
5 ILC, A,/CN.
4 /t-.3
45
/ Add.l, article 6, par.
3.
presents a different opini on,-pp.234ff.

:' Giuliano
9!t, ,rr|,)
(1960), pp. 179ff.
202
are always situated in foreign territory. In order to avoid that the State be
tempted to exercise coercion on members of foreign missions, the
Conventions provide explicifly, that immunity for official acts of any
member of a mission continues even after he has left the territory of the
receiving State (CDR 39, par 4, CCR 53 par. 4, CSM 43 par. Z, CRSIO 3g
and 68 par.z). These rules obviously apply to all State officials, but for
practical reasons it has appeared necessary to specify them in inter-
national instruments concerning external missions.s

The extension of the immunity beyond official acts has been considered
only in t}re case of members of the diplomatic staff. This can be explained
in the first place, by the interest of the function. But there is also another
reason related to the immunity of the State. This is the necessity of
preventing courts of the receiving State from having to rule on whether the
member of the mission concerned was acting in the exercise of his official
functions or not. It is, in fact, a question concerning the organization of the
mission itseHand therefore of the exclusive resort of the sending state. To
submit such a question to the appreciation of any organ of the receiving
State would be contrary to the principle of the jurisdictional immunity of
the sending State.e
Immunityfrom jurisdiction enjoyed bymembers of the externalmission
for their official acts means in practice that courts of the receiving State
willneverbe competentin anymatter relatingto these acts. Even a dispute
concerning matters governed by civil law can be settled only in the

framework of the international responsibility of the States concerned.
The same rules concerning the attribution of ofEcial acts of members of
a mission to the sending subject also apply to missions of international
'organizations. They have the same practical effects as far as the organization in question is granted immunity from jurisdiction in the territories of
mernber States.
3. ruuuxrry
FRoM CRIMINAL JURISDICTIoN
We now come to immunities proper to members of external missions

themselves. The first and most important one is defined in very clear
terms:
.8 Suharitlul (L976), p. 98, when dealing with this question, distinguishes immunities
rationc materiae and ratione penonae. According to him the fust apply to diplomatic agents
and their official acts, the second to their private acts. The present author thinks it is not a
useful theoretical distinction, which, on the contrary creates confusion. A similar position
was taken by the Harvard draft quoted by Cahier (L964),p.253.
e On the question of official acts of consular agents see Lee
(1966), pp. LL6-133.
203
A diplomatic
agent shall enjoy immunity from criminar jurisdiction of

the receiving State. . .(par. 1 of: CDR 3L, CSM 31, CRSIO 30 and 60).
As already said this is a necessary corollary of the personal inviolability of

the diplomatic envoy. In spite of this logical link, immunity from criminal
jurisdiction was not generally recognized until the beginning of the LTth
century. It was often refused in cases where the diplomat was involved in
plots against the receiving sovereign.l0
At present this immunity is generally recognized and has an absolute
character.It is true that it was strongly disputed by the Iranian authorities
wh91aafte1 invading the American embassy, they were preparing to try its
staff. But this, fortunately, was an isolated case condemned unanimously
byworld opinion.
The absolute character of the immunity from criminal jurisdiction
excludes any exception to it.It should not be forgotten, however, that this
immunity only stops the sanction provided by law to be applied, but does
not dispnse the person enjoying it from respecting the law itself (see
above, chapterXV,2).
The question now is what other categories of the staff of external
missions enjoy immunity from criminal jurisdiction? In the first place there
are the members of the family of the diplomatic agent formingpart of his
fou99n9!0 (CDR 37 par.l, CSM 39, CRSIO 36 par..l).Thi, can be
justified by the necessity of protecting the diplomatic agent'from any form
oJ coercion or pressure which could be exerted upon him indirecfly,
throughmembers of his family.
By virtue of the same provisions, members of the administrative and
technical staff and their families enjoy absolute immunity from criminal
jurisdiction. The immunity from criminal jurisdiction is limited to
official acts only, when any person entitled to it is a national or permanent
resident of the receiving State. (CDR 38, CCR 71, CSM 40, aRSIO 37,
67,73).
consular officers do not enjoy immunity from criminal jurisdiction, but
the receiving State is under the obligation to grant them special treatment
whenever they may be involved in a criminal case. As already mentioned, a
consular officer cannot be arrested or detained, except in cases of grave
crimes (ccR 41 par. 1). If criminal proceedings are instituted againsihim,
he must appear before the competent authorities, but
the proceedings shall be conducted with the respect due to him by

reason of his official position and except in the case specified in par. 1 oi
__10-_Denza_(1976),
(1967),pp.78-89.
204
pp.149ff.; Giuliano (1960), p.86; Satow (tg7g), p.124; Wilson
this article- (serious

:.i.: - L.D) in a manner which will hamper the
exercise of consular functions as little as possible (ccR aL par.i1.
whenever a consular
_agert is detained or criminal proceedings are
against
him
the State of residence has the o"ty to iotoi* trr"
lnstitutgd
head of the consular post or, if he himself is concerned, the
sending State
through the diplomatic channel (ccR 42). This also applies to hoiorary
consuls (CCR 63).
Immnnity from criminal jurisdiction only covers official acts of members of the service stl{-of all types of missions (cDR 37 paragraphs
3 and
4, CSM 36 and 37, CRSIO 36, paragraptrs Z anA S;.
The same is true of all members, 6oth officials and experts, of external
missions and of most international organizations
1cmru'v and vI,
CPISAVI, CPIOAUVtr)
The status of representatives of States to international organizations,
members of both permanent missions and delegations, has clianged
ovei
the years. According to the cpIUN and cplsdrepresentatives
of states
were granted immunity from arrest but their immunity from
criminal
jurisdiction was limited to official acts only (cpILlN
rv, crtsa D. An
i_dentical provision is included in the uN hdadquarters'agreement
with
Switzerland. A similar agreement with the United States grirt, representatives of states the same status as to diplomats accredited'in washington,
gven though the legislation of L945 is more restrictive.rl Also tne igsq
headquarters agreement of UNESCo grants representatives to that
organization a status equal to that of mimbers of diplomatic missions
accredited to the French government (art. 1g).
This bhows how over i rather short perioi of time representatives of
States were granted absolute immunity from criminal jurisdiction
which
tfrey were not enjoying at the outset.l2 It is not surprising, therefore,
that
the.express grangg gf that immunity to both p".ro*""irepresentatives
d+"gltes (cRSIo-3O and 60) did not raise any serious opposition
T!
either in the ILC or at the 1975 Vi6nna Conference.
4. ruuuxrry FRoM crvrl
JURrsDrcrroN
The extension of the principle of personal inviolability of the diplomatic

agent to all civil proceedings before the courts of the ieceiving
State was
nÎnternational organizations
Lnmunities Acg Legislation on Foreign Rehtiora,vol.u.,
p.388.
It
privileges and Immunities of the
oAU,
.l'z -s9eg1 gyrnrisinc that the convention on
adopted in 1965 when this practice was already well estaLfished simply
repeats provisions
of the cPIUN without granting representatives of States immunity
jurisdic-
tion.
t"-
"'.i*i"ur
20s
m,
not generally admitted until the end of the 18th century. In the case of
criminal jurisdiction the sovereign could always be satisfied by expelling
the diplomatic agent who violated the laws of his country.In private law
cases, on the contrary, immunity from civil jurisdiction deprived creditors
of the diplomat from any kind of material protection, especially as no
sovereign was willing to pay back debts of diplomats accredited to him. In
the course of the L9th century however, immunity from civil jurisdiction
was generally recognized and confirmed by jurisprudence.l3
At present this principle is part of conventional diplomatic law. After

establishing immunity from criminal jurisdiction, the conventions provide
that the diplomatic agent:
(he) shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: . . . (CDR 31, CSM 31, CRSIO 30).
This indicates that immunity from civil jurisdiction, contrary to that from
the criminal one is not absolute but has exceptions.la
Before looking at these exceptions it has to be pointed out that ratione
personae, immunity from civil jurisdiction has some restrictions. As a
matter of fact, it is granted only to members of the diplomatic staff of
diplomatic missions, of special missions and of permanent missions to
international organizations and to their families.ls The other categories of
members of external missions, namely the administrative and technical
staff of all types of missions, consular officers, members of missions of
international organizations (both international officials and experts) and
all members of delegations to sessions of organs and to confeiences, do
not enjoy immunity from civil jurisdiction except for official acts direcfly
attributable to the mission and to the sending State.16
Among exceptions concerning the immunity from civil jurisdiction,

some apply to all persons enjoying it while others concern only certain
categories of staff.
Exceptions of general application are of two categories. The fust one
comprises legal situations independent of the presence as member of a
foreign external mission in the territory of the receiving State of the person
concerned; the second one applies to private professional activities of that
person (CDR 31 par. L, CSM 31 par. 2, CRSIO 30 par. L and 60, par.4).
According to these articles the first category of exceptions conceflrs:
13
Giuliano (L960), pp. 92tt.

a Whiteman, vol . 7, pp. 41 6 ff.;Wilson
( 1 96 7), pp. 9 g-129.
ls The CPIUN in section 11 does not grant this immunity
to representatives of States,
who, however, enjoy it by virtue of the respective seat agreements.
16 CDR 37, paragraphs
2 and 3; CCR 43; CSM 36 and 37; CpIUN V and VI; CRSIO 60.
1
206
a. a real action to private immovable property situated in the territory
of the receiving State, unless he holds it on Lehalf of the sending

state for
the purposes of the mission;
b. an action relating to the succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee, i"p.iuut" person
and not on behalf of the sending State (par. 1);
The distinction which appea,rs-.rn.both points of that provision

is simpry a
repetition of the fundamental distinction between actJaccomplished
in the
exercise of the official functions of the diplomatic agent and
all other acts.
The second type of exceptions mentioned above-concerns
*y
c. an action relating
professional or commercial activity exerto
cised.by the diplomatic agent in the receiving state outside
his official
functions @ar. 1).
As already mentioned, such anactivity by drplomatic agents (cDR

42),
gonsulal ofiEcers (ccR 57) and by memLeri of permaient missions to
international organizarions is stricfly prohibited
linsro 39 par.l). They
are mentioned in the above provision, only to make it perfecfly
clear that in
such cases diplomatic immunity car rrere. be pleaded.
In
. addition, a special exception concerning immunity from civil jurisdiction applies to members of consular posts, and of siecial missions
and
delegations. It aims at providing a spicial protection to victims
of road
accidents caused by members ofat least some foreign missions.
The ccR
recognizes the immunity of civil jurisdiction foiacts of members
of
consular posts performed in the exercise of their official functions,
but
with the exception of any civil action
by a third nartr for.{1mage arising from an accident in the receiving
- '--e
state caused by a vehicle, vessel or aircraft (ccR 43 par. zb\.r,
concerning the diplomatic staff of special missions a similar provision
by the special rapporteur has been finally included inihe ILC,s
draft.r8 It is, however, more limited, as it applies orrty to actions
p.ropg:{
for damageg arising out of an accident caused by

a vehicle used outside
the official functions of the person concerned (csM 3L par. z d/).
17 On
this
"
poinq
d.Le
ILC, Yearbook,
(L966), pp. 143-L46.
1967', vol.
i,
pp. l2L-L3Z,and vol. tr, pp. g7ff. and 36 1.
207
Inthe laststage of its work on cRSIo the ILC finally proposed to exempt
from the immunity fr9m civil jurisdiction granted tb members of permanent missions and delegations, the responsibility for road accidents.re
At the 1975 vienna confererrce, at first the committee of the whole
{9nted this proposal, but finally limited its application to members of
{elegations only.20 The corresponding provision concerning members of
delegations now reads as follows:
4. Nothing in this article shall exempt such persons from civil and
administrative jurisdiction of the host State in relation to action for
damages arising from an accident caused by a vehicle, vessel or aircraft,
used or ornned by the person in question, where those damages are not
recoverable from insurance; (CRSIO 60).
The same conventions impose on members of missions the obligation to
comply with requirements imposed by the laws of the State of residence in
respect of insurance against third party risks arising from the use of
vehicles oraircraft (CCR 56, CRSIO 78).
5. ruuuxrry
FRoM MEAsuREs oF ExEcurroN
The measures of execution are coercive measures enforcing a judicial

decision- frgt
lg"ot, in principle, be appried to anybody enjoyrng
personal inviolability. on the other hand, immunity rrom jlrisdiction
alone would not rule out completely measures of execution Lnforcing a
judicial decision taken before the person concerned was entifled-to
immunity from jurisdiction. Diplomatic law conventions therefore provide that
no measure of execution may be taken in respect to a diplomatic agent
... (CDR
31 par.3, CSM 31 par.4, CRSIO
30pat2).
This provision also applies to members of the family of the diplomatic

agent (qDR 37 par. L, CSM 39, CRSIO 36 and 66).
The situation of members of the administrative and technical staffof the
different types of missions is less clear. Although their immunity from civil
and administrative jurisdiction does not apply to acts performed outside
re Concerning the actual practice,
see UN doc. A/CN.4/L.l1g, pp. 196ff.

conferenceonRslo, affrcinlDocuments,vor.r,committeeofthewhole,
and 33rd meetings; vol. II, doc. A,/Conf.67 /4,articles 30 and 60.
20
208
L9th,32nd
of their duties, the wording of the relevant provisions

indicates that their
immunity from measures of execution i, trr" .*"
;A;;i;iplomatic
agents, and does not exclude cases invorving non-officiar
u"t lbon lz
ptr.2, CSM 36, CRSIO 30 par. 2 and 60 par. 4).
Immunity from measures of execution ir suupct to the
same exception
as is irnmunity from civil and administrative jurisaiction.
rne aro."-quoted
provision also adds that the immunity from execution
does not apply to
cases which are not govered by the immunity from
civil jurirai"tior. rtis
includes cases involving the responsibility of-members
,i;p;;; missions
and delegations for.road accidents (sle previous sectitn;. Thus
the
exceptions discussed have real weight.
where execution is permitted, itis subject to the condition that
"
the measures concerned can be taken without infringing

the
of his person or of his residence (cDR 31 par.
ptr.2).
a,6sfr
inviolability
s9, cRSIo 30
rn other words no coercive meas,re enforcing a judicial

decision can be
taken againstthepersons concerned norcan anagent
of the receiving state
enter their residence-for-that purpose. The saire restrictions
appry to
members of the family of the dipiomatic agent and to
members of the
administrative and technical statr
6.
rrr,rlvruurry FRoM ADMTNISTRATIvE JURISDICTIoN
Administrative jurisdiction applies to violations of rules sanctioned

by
fines payable upon establishment of a ticket by a state or municipal

ageil.
ryp* frequent cases.are violation of parking and road traffic."irr"tio3s.'z1-fs alr"ady mentioned, members bt tor"Ig, missi"". are
under a
strict obligation to respect-all of these regulationi even though everyday
practice seems to proveP":-g"ou.y
(sle above, chapter i\t,21.'fA"
frequency of violation of traffic rutis by members of toreign external
missions is due to their immunity from both civil and adiinistrative
jurisdiction, and from corresponding measures of execution
of the fines
imposed.
frafac regulations are an important erement of public order, especially
in big cities, and every state has t6 take effective *"*.r.", toiave
them
respected, also by members of foreign extemal missions. In switzerland,
for instance, vehicles blocking traffic, even with diplomatic plates, may
be
T"
21 Cf, Wilson(1960),
pp.
Bg-g7.
209
towed away but the owner will not have to pay the corresponding tax.In
addition, violations of t1affic regulations are reported to heads oT oiptomatic missions and of the secretariats of international organizations. In
cases of recurrent violations more energetic measurer may be taken,
including disqualifi cation from driving.22
7. ruuuNrry
FRoM GrvrNG EvTDENCE
In this matter the main Conventions provide that:

diplomatic agent isnotobliged to give evidence as a witness (cDR 31
par.2,CSM 31 pil. 3, CRSIO 30 par. 3 and 60 par. 3).
This also applies to members of his family as well as to members of the

administrative and technical staff and their families, also in civil cases
concerning them.
from giling evidence is absolute. It is an important corollary
-Immunity
of personal immunity. In fact, a surlmons to appear before a court and be
questioned by the judge and the parties, constitute serious constraints
contrary to the principle of inviolability. In order to reconcile the requireof.the proper functioning of the judiciary of the receiving state with
Sents
gynitfs of the diplomatic agent, it was proposed to make ii a outy tor
diplomatic agents to give evidence, provided this either takes place in the
premises of the mission, or is done in writing.z: This propordl, ho*"u".,
has not been accepted.
The provision discussed does not bar a request to give evidence to
be
addressed by diplomatic channels to a member of a foreign mission,
who
may accept itwiththe consent of thehead of mission. Suchpermissionmay
be granted either in the iqterest of justice, or, sometim"r, in thut of the
mission itseH. This may be necessary, for instance, in the united States ,
where criminal proceedings in cases of attacks on diplomatic missions or
agents may be instituted only following a complaint uy ttre victim who
then
also has to give evidence.2a This requirementis obvibusly contrary to
the
international obligations of the united States, as has ueen righuy pointeo
out by the UN Committee on Relations with the Host State.2J
consular officers do not enjoy the immunity from giving evidence, but
are entitled to a special treatment:
Chronique,
]]
23 Cahier
RGDIP, I97 5, p.1 1 92; UN doc . A/ AC.t 54/L.25, section 2.
96 4), p. 25
S;Denza (L97 6), p. L67.

2a Chapter XW,
section 4.1.
25 UN committee
on Relations with the Host State, UN do c.
(1.
210
A/9026
a,,d, A/AC.1.54/23.
Members of a consular post may be called upon to affend as witnesses

in
the course of judicial or administrative prbceedings. . . . If a
consular
officer should decline to do so, ro co"rcive
or penarty may be
applied to him (CCR aa pal. t).
-*r*I
l3
{ai{9n tney arenot required to give evidence on questions concerning
their official duties, to provide documents
them nor to give
"or""*irrg
evidence as experts on questions of the law of
the ,"rolrrg state lcci++
par. 3).Finally,
the authority requiring the evidence of a consular officer shall

avoid
interference with the performance of his functions. It may,
when
possible, take such evidence at his residence or at the
consular porioi
accept a statement fromhimin wdting (CCR 44 par. 2).
consular employees and members of the service staffshall not

decline to
give evidence, except conceming service matters. The
same is true of
ho_norary consuls (CCR 53 par. 2).
Instruments now in force do not grant members of external
missions of
international organizations immunity from giving evidence. It
seems,
however, that this importanl immunity shouio in"future u" gr*t"o
to
them, at least to the extent enjoyed by cbnsular officers.
8. werven
oF rMMUNrry
All immunitieg enloved by members of external missions, according to

preambles of the instruments discussed, are granted to
them
not to benefit individuals but to ensure the efficient performance
of the
functions of diplomatic missions as representing States.
It follows therefrom that the immunity of jurisdiction of its envoy is a
subjective right of the sending state. This rigt,, * any other

subjictive
right, can be waived only by the subject of intirnatiorui lu* to whom
it is
granted.26
But the subjective right of the sending subject to immunity of its

envoyis
It is limited, on the one hand, by the reai needs of the
functions of the envoy, and, on the other, by his obligation to respect
the
legal order of the receiving state. when any one oithor" limitations
is
not absolute.
26 Cf. Giuliano
(1960), p. 104.
violated, then
the right to waive the immunity becomes

an obrigation,
although it cannot be enforced.2z
The provisions, conce_rning waiver of immunity
are almost identicar in
thefourdipromaticrawconvintio-ns (cDR
32, csM 41, ccR45, cRSIo
31 and 61). Thev state e4pricitrv that the
i-il;t;;"
iui*o only by
the sending State.
Tl?3.o
,
the
require that the waiver be always expricit,
and in the case of

ccR it has even to be in writing.As a matter of fact
immunity from
jurisdiction is such- an important
Zlement of the status of
- the entire
diplomatic mission
that its waiver can never U" p."rr_"AThe receiving State has to be informed
abouithe aecision
.
to waive the
immuniry from jurisdiction through dipromatic
.t;;i;;;i"g
by the
mission.A gimpre declaration by-its niember
oirecuy-concJrneo that he
accepts the jurisdiction of the corrrt, shourd
not b","g;.4;;; sufficient to
presume that the competent authorities
t ur" u.tuuui;-JJ; to waivehis
immunity.
The next paragraph of the same articre provides
that when a person
jurisdiction initiati, .irit
:Tioy"-r.g lrynunity from
;;;;;;s, before a
tribunal of the receiving state, he cannot.invoke;;rri;;.m
jurisdiction in respect to any countercraims. This prr*
m"-g"-"Jti;n whether a
person enjoymg immunity can initiate prbceedings
*itfrort the court
concerned requesting an express waiver'of
i-ilfiy;y
;; competent
authorities of the sending stat". n present
author submits that the
answer shourd be negative for two ",,,iio
,"u.onr.* rn trre nrst prace,
jurisdiction means tharthe courts
yyqfr*
of the receiving state are
rncompetent ratione personê and this
whether trre person enjoying it
plays an active or a passive role in
the proceedings. secondry, the
unconditional requirement that the *uir",
u" ur*"y,
ttre
judge from presuming it.
""ii"sl-irevents
Th.e. final paragraph of the article
common to a[ four conventions
provides:
waiver of immunityaom jurisdiction in respect to
civil or administrative proceedings shal not be herd to impry
*uin"i oii*.ooity i,
respect of the execution of-t!{ldgement, for
whi.r, u ."p-ute waiver
shall be necessary (par. + ot: con s1, csM 41
, cci +s, Lrnslo 3 1 and
61).
27
Whiteman, vol. 7, p. 42l-436.

zd contraryopinionsareexpressedbycahier
(L964),p.271 andGiuliano(1960),p.
10g.
Thisquestionisarsoanarvsedttr,"r"gj.pi"i.";irir"'6il;;#ffi;i;reisrAffairs
of May
21.2
t sth
197 5,
ASDI,
197 7, p.
Zil
i.
xi isbt,l
985, pp. 1 85 ff.
After establishing
t\
right of the sending subject to waive the immunity of

member of its mission, the question has to be asked whether
he may also
be under the obligation to doso.
sugf an obligation was clearly established
Lg47 by the following
provision concerning representatives of states to international
organizal
tions:
a
... a Member not only has the right but is under a duty to waive the
immunity of its representative i" *y case where in the Lpinion
of the
Memberthe immunitywouldimpeoittre course ofjustice, and it canbe
waived without prejudice
t9 tlg purpose for which the immunity is
accorded (CPIUN section 14, CpISA section 16).2e
The enforcement of this obligation may be dfficult in practice,
because the
decision rests with the member State alone and neitirer the organization
nor the host country can take any initiative here.
Both the cDR and the csM are accompanied by resolutions voted
following their adoption which recommend
tlal the gending State should waive the immunity of members of its
diplomatic mission in respect of civil claims of persons in the receiving

State when it can do so without impeding tire performance
of the
functions of the migsion, and that, *tie"
is not waived, the
sending state should use its best endeavours to bring about a just
settlement of the claims.3o
i--ity
In the case of cRSIo the above recommendation has beentransformed

Ttg * obligation concerning members of permanent missions and of
delegations (pa.. of art. 31 and 61).Itfollowsfromthatprovisionthatif
a
just settlement ofI the claim is not -arrived at, then
international responsibility of the sending Statemaybe engaged. Tiris certainlyis Jso trueof
all
the other types of missions.
2e
Similar provisions concerning international ofEcials and experts exist in CpIUN
articles V and VI and in the CpISA articles V and VI.
30 conference
on Dipl. Relations,
General Assembly res. 253 1 0OA!).
fficial Documents,vollJ,p. 100 resolution tr; UN
21,3
ChapterXXI
Exemptions
L. rnr coNcEpr
oF ExEMprroN
fJonq with personal inviofabilip (immunity from coercion) and immunity

from jurisdiction, exemptions from dues, taxes and p"rrorul services are
the third kind of limitations imposed by international law on the exercise
of territorial sovereignty by the receiving State in respect of foreign
external missions and their members.
gxemptions release the mission and its members from certain legal
_ J-he
obligations resting on all persons entering the territory of the state
concerned, as compared with immunities which do not free them from the
to rgsp.ect the laws of the receiving state. In particular exemptions
$uty
free external missions and their memberi from the butgation to pay dues
and taxes to public authorities, and bars the latter from taking any
measures in order to collect them. Fiscal exemptions concern, in principle,
direct taxes, but certain states arrange for foreign missions to purchase
goods without paymg even indirect taxes comprised normally in current
pnces.
Members of foreign missions are exempt from dues and ta:res only as
their official presence in the receiving Stati is concerned. Taxes due from
them independenfly of that presencl remain payable, even though the
execution of a writ is not possible as long as they enjoy diplJmatic
immunity.
The question may rightly be asked whether exemptions of external
missions and of their members are really necessary to ensure the efficient
performance of their fun9tions. Two major arguments seem to prompt a
positive answer. In the first place, an external mission is an oigan of a
subject of international law, which carries out its functions in the interest of
both the sending and the receiving subjects. There is, therefore, no reason
why it should pay taxes to the latter, especiall- y as most often both are
sovereign and equal states. secohdly, an obligation of a foreign mission
and its staff to pay tares or render services would be a forri of direct
constraint exercised by the receiving state, even if limited by their
215
5frr
i:1ffi
-'*ml|ffi ;ff II, IE?:"-
immunity from execution.It would necessarily grve the latter the right to
inquire into their revenues, which is not pirmitteo by their perional
inviolability.
The provisions of
lre four major conventions concerning exemptions
are nearly identical. They shall be studied under three headings, namely:
exemptions from taxes, from customs duty and from other duties.
rtxExEMprroNs
Tax exemptions applied to external missions on the one hand, and
members of their staffs on their other, raise somewhat different problems.

It is why the Conventions deal with them separately.l
The main provision concerning tax exemptions ieads
as
follows:
The sending State and the head of the mission shall be exempt from
rytional regional or municipal dues and taxes in respect to piemises
of the mission, whether owned or leased, other than such as represent
qryTgryfgrspecific services rendered (CDR23, CCR32 and 60, CSM
24, CRSIO 24 and 54).
1_._
al-l
The very general terms of that provision imply that the exemption applies
not only to taxes on ownership or rent, but also to those on purchaie of
property.
But this exemption concerns onry taxes which would be due from the
mission or its head, as shown by the next paragraph of the same article:
2.
The exemption from taxation referred to in this Article shall not

applyto such dues and taxes payableunderthelawof thereceiving state
by persons contracting with the sending State or the head of the mission.
It is perfectly normal that the person who contracts with the mission is not
exempt from taxes because of the fiscal immunity of the latter. But,this
does not preclude the possibility for the parties to include in the price of '
purchase or of the rent of the premises of the mission the amount of taxes
to be paid by the other party.2
The Conventions contain still another provision on taxes:
The fees and charges by the mission in the course of its ofEcial duties
shall be exempt from all dues and taxes (CDR 2g, CCR 39).
1
See
whiteman, vol. 7, pp. 270-340 on situation in Geneva vettovaglia.
2 Cahier(1964),p.281.
21.6
This concerns only diplomatic missions and consular posts which are
the
only ones entifled to exercise administrative functions on behaH of the
sending State.
The provisipns of the four conventions on tax exemptions of members

of the different types of missions are nearly identical and read as follows;
A diplomatic
agent shallbe exempt from all dues and taxes, personal,

regional or municipal . . . (CDR 34, CCR 49, CSM j j, CRSICi
11tional,
33 and 63).
The second part of the sentence lists a number of exceptions to that rule
which concern dues and taxes payable independently of the official
presence of th9 diplomatic agent in the territory of the receiving state.
They refer to the same situation as in the case of the immunity from civil
iurisdiction. These are
dues and taxes on private

ry-gnuut" 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.
frg lrt of exceptions to tax exemptions comprises ulro

or inheritance duties, unless they concern
"rtat",
succession
movable property the presence of which in the receiving State was due
solely to the presence there of the deceased as a membei of the mission
(CDR 39 par.4, CCR 51 , CSM 43 par 2, CRSIO par.4of 3g and 6g).
Finally, the member of the mission has to pay dues and taxes
on private income having its source in the receiving state and capital
taxes on investment made in commercial undertakings in the receiving

State (CDR 34, CCR 49, CSM 33, CRSIO 33 and 63).
Mostauthors agree on the ambiguous wording of that provision.Its basic

meaning is, however, that taxes have to be paid by mimbers of extertral
missions and by their families on all revenues gerrerated in the receiving
country and not related to their officialposition.
The same fiscal exemptions apply both to members of the family of the
diplomatic agent and to members of the administrative and technical staff
and their families, provided they are not nationals or pennanent residents
of the receiving state. Members of the service staff and private servants are
exempt from dues and taxes 'on the emoluments reciived by reason of
(CDR 37 par.4, CCR 49 par.2, CSM 37
38,
}:{-lqp_t
CRSIO 36 and 66, paragraphs 3 and 4).
ryq!'
*d
217
Even though honorary consuls are usually nationals or pennanent
residents ofthe receiving country they are
exempt from all dues and taxes on the remuneration and emoluments
which they receive from the sending state in respect of the exercise of
consular functions (CCR 66).
contrary to direct dues and taxes, external missions and their members
are not, in principle, exempt from indirect taxes included in the price of
goods, which the producer and the retailer have the duty to puy. Th"y
ur"
collected without the slightest coercion and do not, ther-efori, impedl the
exercise of the functions of the mission and of its members. As a mauer of
princlple the question can be raised, however, whether it is proper and
acceptable for a State to pay taxes to another state. without t-aking stand
on that problem, many States, as a matter of courtesy, grant heads of
missions and sometimes also their staffs, the possibility t6 purchase tax
!ee, gertain goods for the mission and even foi personairrr". Thi. may be
done in the form of reimbursement of the vAT payed when the pur"hur"
was made.
Another type of tax to which exemptions do not apply are dues and
chgqgs
ryhich'represent paymentfor specific servi.". rlnd"r"d; (cDR 23
and 34, ccR 32 and 49,cRSIo 24,33,54,63).Even though this rule is
clear and logical its implementations may raije some dffi-cutties. As a
matter of fact there is no reason whatsoever for the mission to be supplied
free of charge with certain facilities Iike water, electricity, landing facilities
at airports, etc. But as the cost of certain other servicer, eg. refuse
collection, is ofte:r covered by communal taxes the question #ses whether
-
such taxes should be payed by foreign missions.
A particularly difficult situation was created when in 19g5 the Swiss

government introduced the obligation for all motor vehicles using main
motorways to have a sticker (vignette autoroutidre) worth 30 Swiss francs.
Most foreign missions, both in Berne and in Genwa, refused to purchase
the sticker considering this as a tax covered by their fiscal exemphon. The
swiss government, on its part, maintains that the price of tihe sticker
represents a payment for the maintenance services of the motorways.
3. rXrrrAPrrONS
FROM CUSTOMS DUTY
This is certainly one of the best known and most envied aspects of the
diplomatic status. contrary to what is often alleged, the exemption from
payrng customs duties is not a superfluous privilege granted to foreign
21,8
"
but a logicalconsequence of the other immunities,

important for
tle external mission.
Personal inviolabititv of the dipromatic
agent, which necessarily arso
covers his personal.baggage, is the ti.rt
igo*""i-i" ruu"". of that
exemption. To submit the entry of trrat uaggale
into tlr" t"..it".y of the
receiving state to restrictions aod ta*".,
*oit-o imo.rrt to i-porirrg on the
agent himself the constraint of fifling out a
customs deciaration, of a
possible inspectiongf-his tuggage, etJ.
rhe ,".;J;gr_;;t is that, as
generally recognized, the misiion'and its
staff are
p".torm their
functions under the best possibre conditions""tiU"?io
rrri,
,"quii".',rru, they be
provided with whatever corresponds to their
habits *di.uoitiorr,
These are the reasons why ihe four Conventi;
g,Jilal types of
_"."oI:,
the efficient functioning of
missions3
exemption from ail customs
drgT,
taxes and related charges other than

. . .;'(p*?of
CDR 36,
/ \r---- -
l!p9s tor stgragg, cartage and similar-sjrvic",

CCR 50, 62, CSM 35, CRSIO 35 and 65).
The objects corrcerned^by this exemption have

to be either for the official
orforthe persorir or" trr" aipr"-"ti;
and his
family,-lncluding articles intenoea tor tis establishrnent.
"r
No f,uantitative
or qualitative restrictions- are imposeo on trrose
artict".
use of the mission,a
"g*
*-o-trr"r" i. oo
their i-port.. But, obviously, the quantity of
goods imported under that franchisl has
to correspond to the needs of the
mission, and they cannot be handed over to
thira
as gifts.
According to th1 second paragraph of theierson;,;;;
ubor":fi;;ed articre,
members of the mission have to r"rf".i regurations
or me receiving state
p.r.hiliting the import or export of certain"anr.il,
ir"p"G a quaran_
tine. Such regulations may result from international";
ob{ationis concern_
ing for instance traffic
They can also have ;;*;iy national
r dTgr:
character, for instance the
abs-olut" uu, on arcohol i-pirt.. rn certain
states, such rules may bg
nartlv waived for the benefit
Members of the uo.irrirtrutin" *J t".r,ri.al
staff"iiipr"-"t..
and their families
enjoy more restricted exemptions from custo-msduties:
they concern only
imported
at
the
time
of
their
first
instalation
llicles
lcon 5 z par. 3, ccR
503ar.2, CSM 36, CRSIO 36par.2).
hr.
o.n the frequency.of
The customs duty exemption e4oy'60 by members

of delegations is even
narrower_ and applies oly to articles of personar
use imp"orted in their
gersoggt_lrysage atthq time of their first
irto trr" t"mffiLttne nost
State (CRSIO 65 par. t b/).
"rrtry
3 Vettovaglia;
Whiteman, vo l. 7 , pp. 341-352;Wilson (1967), ppt.
L3O_146.
case of consular posts headed by honorary
consurs, the list of these
*|,n*:
objects is
219
By virtue of their personal inviolability (see above, chapter XDe a]l the
personal baggage ofthese persons
is exempt from inspection, unless there are serious grounds for presum-
ing that it contains articles not covered by the exemptions (par 2 of

CDR 36, CCR 50, CSM 35, CRSIO 35 and 65).
Totally excluded from the benefit of exemption from customs duties are
members of the service staff of external missions and personal servants of
their members, as well as all members of such missions who are nationals
or residents of the receiving State.
4. ornen
ExEMprroNs
It has already been mentioned (see above, chapter )(IX) that the receiving
State is under the obligation
to exempt diplomatic agents from all personal services, from all public
service of any kind whatsoever, and from military obligations such as
those connected with requisitioning, military contributions and billeting
(CDR 35, CCR 52 and 67, CSM 34, CRSIO 34 and 64).
This is a direct and logical application of the personal immunity, and

therefore needs no further comments.
Another important exemption concerns social security provisions
which may be in force in the receiving State. These provisionsdo not apply
to him as an employee of the sending State (CDR 33, CCR 1g, CSM 3i,
cRSIo 32 and 62). By virtue of the provisions concerning members of the
missions other than diplomatic agents (CDR 37, CSM 36 and 37, CRSIO
36 and _56) this exemption extends to all categories of staff including
personal servants, provided however that they are not nationals oi
residents of the receiving State. This means that when the mission or its
members employ nationals or residents of the receiving states they have to
pay the employer's contribution to social security. This obligation follows .
fromthegeneral obligationto respect laws and regulations of thereceiving
State.s
Members of all types of external missions are also exempt from the laws
and regulations of the receiving State in regard to the registration of aliens
and to residence permits. Even though this is e4plicifly recognized only in
s lnthesamesensethestudyoftheSwissDepartrnentofForeigrAffairsofFebruaryl3th
L97 6,
220
ASDI,
L97 7, p. 2L9.
respect to consular officers (ccR 4 6, 47, 6 5), itis obvious that it applies to
all categories of staff of all types of external missions.
Finally, members of external missions and their farnilies are exempt

regulations of the receiving state concerning the acquisition
of its nationality. The principle is clearly stated in article tr of the optional
Protocol on the Acquisition of Nationality of boththe cDRand trr-e ccn
fr-o.m lawg and
which reads:
Members of the mission not being nationals of the receiving state and
members of their families shall not, solely by the operation of the
receiving State, acquire the nationality of that State.
The same provision is included directly in article 74 of. the cRSIo. In

practical terms it means that the receiving or host state can never claim,
that a person concerned by this provision has acquired its nationality and
therefore comes under its personal jurisdiction because he was bomin its
territory (ius soli), has resided there over a long period of time or has
rnarried one of its nationals. This provision, however, does not preclude
the possibility of a dispute concerning the double nationality, when it is the
result of facts or circumstances which occurred before that person became
a member.of the mission. The above provision does not bar the persons
concernedfrom applying to benefit from the legislation of the receiving
State in order to acquire its nationality.
!.
--3r+
"Z,.
*::
The modern
t.aw of
Diplomacy
'f
External Missions of States and

I nternational O rgan izations
by L. Dembinski
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.l 5 sgP.

THE MODERN LAM/ OF DIPLOMACY

MARTINUS NIJHOFF PUBLISHERS L#

a member of the KLUWER ACADEMIC PUBLISHERS

Falcon House, Queen Square, Lancaster LAI lRN, UK

Library of Congress Cataloging in Publication Data

international organ'izations / Ludr,rik Dembinsk i.

All rights reserved. No part of this publication may be reproduced, stored in a

Box 163, 330dAD Dordrecht,

2. New Dimensions of Diplomacy

2.L The World-wide Extension

3. From Customary to Conventional Law

Chapter II. The Field of Study

3.L. Diplornatic and Consular Relations

Organs of Relations Between States

Z.Drersity and Unity of the Law of External Missions

3. Three Complementary Approaches

4. The Overall Plan

L. Common Characteristics of External Missions

2.L. The Right of Legation

z.4.Different Types of Missions

3.3. Types of Missions

Chapter IV. Permanent External Missions and Their Functions

L. Missions of Representation to States

Chapter V. Temporfry External Missions

The Diplomatic Character

Chapter VI. SpecializedMissions

Chapter VII. The Establishment of External Missions

1. Agreements Concerning Missions

1.3. Missions of International Organizaflons

2.L The Triangular Relationship

4.L. Change in Status

Chapter VIII. The Material Setting of the Mission

2. Premises and Apartments

Chapter IX. Termination of an External Mission

The Staff of the External Mission

Chapter X. The Members of the Mission

Appointment of Members of the Mission

Chapter X[. The Head of Mission

Status of the Head of Missions

2. Classes and Precedence

Chapter XII. The Categories of the Staff of the Mission

1. The Diplomatic Staff

Chapter XIII. Commencement of Functions of Members of

Prior Consent of the Receiving State

Chapter XfV. Termination of Functions of Members of

L. Termination of Functions by Decision of the Sending Subject

Chapter XV. The Interplay of Rights and Duties

L. The Foundations of the Diplomatic Status

Chapter XVI. Protection of the Mission and of its Personnel

L. Obligations of the Receiving State

Chapter XVII. The Freedom of Communication of the Mission

Chapter XVIII. Principles of Implementation of Immunities

1. Application as to Persons (ratione personae)

Chapter XIX. The Inviolability

Inviolability of the External Mission

Chapter XX. Immunity from f$risdiction

Chapter XXI. Exemptions

1. The Concept of Exemption

Chapter XXII. The Settlement of Disputes

XXIII. General Principles

2. Non-Interference in the Internal

Act on Behalf of the Mission

Chapter XXIV. Relations of the External Mission with

Havanna convention on Dipromatic agt, lrich was